PROFESSOR DIX
Criminal law – designed to protect society’s interests v. tort law which is designed to restore individuals to their status quo
Key issues:
· Due process concerns
o Constitutional vagueness – A fair warning should be given to the world in language that the common world will understand, of what the law intends to do if a certain line is passed. To make the warning fair, so far as possible the line should be clear.
o Because of the seriousness of criminal penalties, and because criminal punishment represents the moral condemnation of the community, legislatures and not courts should define criminal activity.
o Thus where there is ambiguity in a criminal statute, doubts are resolved in favor of the defendant.
· Criminal liability must be reserved for
o The most severe anti-social types of interferences AND where the Δ’s conduct is morally culpable
o The rest ought to be handled in civil litigation
I. Introduction
a. Process
i. Indictment – Δ can only be convicted of crime charged in indictment
ii. Arraignment – Δ enters plea
iii. Jury selection in TX.
For non-capital case:
Address group as a whole. Potential jurors have #s.
Challenge for cause – eliminate jurors who can’t serve (convicted for theft, etc)
Peremptory strike – attorneys remove 10 people without cause.
Judge takes top 12 that have not been stricken.
For capital case:
Address group as a whole
Challenge for a cause
*Attorneys question potential jurors individually
Peremptory strike – attorneys remove 10 people without cause.
Judge takes top 12 that have not been stricken.
iv. Trial
1. **Jury instruction**. Jury doesn’t need to know what law will be until after evidence is closed. Judge often makes preliminary decisions on matters so attorneys can question potential jurors (i.e. feelings about police officers). Many convicted defendants claim substantive charge was not set out in jury instruction. Judge who goes beyond statute runs risk of an appellate court reversing decision.
v. Appeals process
1. On record (just documents from case, including ct reporter’s transcripts)
2. Usually predicated on:
a. Procedural errors (frequently jury instructions)
b. Sufficiency of evidence (rarer)
b. Texas Cts
i. Trial Cts
ii. Appeals Cts
1. Ct of Appeals (Intermediary ct – appeal as of right, if they appeal they must be heard)
2. Texas Ct of Criminal Appeals (TCCA)
a. Highest state criminal ct in Texas
b. Either state or Δ can appeal to this ct
c. Ways to get to TCCA
i. Primarily discretionary review
ii. Also ct of direct review/regular appellate jurisdiction (appeal as of right) in capital murder cases
iii. Writ of habeus corpus
1. Vehicle to examine challenges to convictions after period for appeal has expired
2. Process for felons begins in ct where the felon was originally convicted, but that judge can’t rule – must go to TCCA
iv. Extraordinary Writs (mandamus or prohibition)
1. When the Δ has no other remedy from getting screwed by trial ct
2. Clear they are getting screwed (clear right to relief)
3. No way to cure it on appeal
II. Criminal Statutes and Elements of Criminal Liability
a. Elements
i. Act/conduct – Any voluntary act
ii. Result/Causation – Did the Δ’s act cause the harm?
iii. Circumstances – e.g. for “assaulting a child”, a circumstance is that the person assaulted is a child
iv. CMS – Δ must be morally culpable or blameworthy
b. Identification of any so-called defenses. Raise reasonable doubt.
c. Consideration of defenses. If established, prevent or reduce liability.
Contrast crimes like
i. Assault or murder, which consists with the result, and is defined by the number of results caused; or
ii. Possession, which is concerned with a certain kind of conduct
2. Look at language of the statute to determine legislative intent.
a. If it said “unlawful to possess a marijuana plant,” you would have 200+ charges.
b. To establish multiple liability, have to show legislative intent for multiple accounts.
c. Lenity in interpretation disfavors multiple liability.
d. If legislature did NOT intend to have multiple convictions and the person is convicted on multiple charges, then there is a constitutional problem with 5A.
3. Seriousness of the offense should depend upon the total amount of substance under the person’s control. How the drugs are divided amongst different locations, bags, etc. isn’t important.
4. Davis crime is a risk creation crime – possession with intent to manufacture or deliver. Person poses a threat of doing something more serious than simply possession. Therefore, it is appropriate to look and see if the defendant’s actions pose a threat to committing future crimes.
a. Deliver: how high a risk does the person pose for delivering drugs in the future?
b. Manufacture: define the crime in terms of risk of multiple future manufactures. B/c manufacture is a process, you can’t distinguish amongst the events (like a delivery).
c. Legislature believes that intent to deliver or manufacture is more dangerous than simple possession. Drugs are bad for your own use, but are much worse for corrupting others.
