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Criminal Law
Wayne State University Law School
Henning, Peter J.





Pre-trial Motions

· Include:

o Exclusion of evidence (Miranda and the exclusionary rule)

o A request to dismiss the charges for insufficient evidence or failure to charge a crime which will frequently require the court to interpret the statute defendant is charged with violating

o Courts will conduct a preliminary hearing to review whether there is probable cause that the defendant committed the case


· Const. entitles a defendant to a jury trial if he can be incarcerated on a charge for more than 6 months for the offense

· A defendant can waive a jury trial if the prosecution agrees, in which case the judge hears the case as the trier-of-facts

· For more minor cases, the court will decide the case

Plea Bargain

· A defendant will plead guilty to certain charges, often in exchange for a lower sentence than would be imposed if the case went to trial and a conviction resulted

· Requires the defendant to waive the right to trial and proceed immediately to sentencing

· The gov may demand as a condition of the plea bargain that the defendant cooperate in its investigation by identifying other wrongdoers against whom the defendant will testify

· Sentencing may be postponed until the defendant fulfills the bargain to testify against others

Jury instruction

· Given to the jury at the end of trial

· Originate from counsel for both sides (although often follow model jury instructions) and judge ultimately decides what the tell the jury

· Contains a description of the elements of the crime that the jury must find beyond a reasonable doubt and a description of the legal requirements for a defense offered by the defendant if there is sufficient evidence to require giving the instruction

Motion for a judgment of acquittal

· Only a defendant can seek to have the case dismissed for insufficient evidence (rather than a summary judgment or directed verdict in a civil case)

· The constitution prohibits granting a directed verdict of guilty or informing the jury that it must find a particular fact existed

Double jeopardy

· Defendant may not be put “twice in jeopardy” for the same offense, so that if a person is found “not guilty” of a charge, then the gov may not pursue that charge in a second proceeding, regardless of the strength of its evidence

· Exception to this rule- Dual Sovereignty Doctrine= permits a different state or the federal gov to prosecute a person for the same crime so long as the sate or federal gov has jurisdiction over the offense

Basis for an Appeal

· Defendant convicted of a crime must demonstrate a legal error in the trial or pre-trial procedure . usually based on:

o Insufficient evidence

o Improper jury instruction- (jury gives improper definition of the crim or interpretation of the statute)

o Evidentiary challenges- when evidence is improperly admitted or the court excluded evidence relevant to the case

o Constitutional challenge- when statute, charges, jury instruction or pre-trial or trial procedure deprived the defendant of a constitutional right

· The remedy for legal error is a new trial, although if the gov fails to introduce sufficient evidence of guilt then a “not guilty” verdict must be entered

o Gov cannot appeal a not guilty verdict returned by a jury, but if a court dismisses a charge before trial or grants a judgment of acquittal after the jury returns a guilty verdict, then the gov is allowed to appeal.

o The gov can appeal sentencing issues, although a jury decision not to impose a death sentence cannot be reviewed

Proof of the Elements


· Government must prove all the elements of the charged offense “beyond a reasonable doubt”

o From Davis vs. US (1895)-“the burden of proof, as those words are understood in criminal law, is never upon the accused to establish his innocence, or to disprove the facts necessary to establish the crime for which he is indicted. It is on the prosecution from the beginning to the end of the trial, and applies to every element necessary to constitute the crime”

§ If gov doesn’t prove guilt beyond reasonable doubt, then the jury must find the person not guilty

· In re Winship (1970), Supreme Court made it explicit that proof beyond a reasonable doubt applies in every criminal prosecution

o “…it is a prime instrument for reduction the risk of convictions resting on factual error. The standard provides concrete substance for the presumption of innocence…”

o Avoiding False Positive: Lord Blackstone – “Better that ten guilty persons escape than that one innocent suffer.”


· United States v. Jackson

o Test for determining sufficiency of the evidence: must be such persuasive quality that a jury could reasonably find the essential elements beyond a reasonable doubt on the basis of that evidence (Jackson v Virginia (1979))

· MAIN ISSUE: can one conclude beyond reasonable doubt that the evidence alone that the 1984 conviction was of the same defendant, Aaron L Jackson.

· Not enough evidence to satisfy the beyond-reasonable doubt standard that two separate episodes involving persons of similar features relate to the same person unless the similarities are sufficiently distinctive to make it highly improbable that the two observed persons could be other than the same

o When the points of similarity are less unique or distinctive, more similarities are required before the probability of identity between the two becomes convincing

o Therefore, the evidence must make it highly improbable that two different people are involved

· Based on this evidence, a jury could not reasonably conclude beyond a reasonable doubt that the two Aaron Jacksons were the same

· “Due process Clause protects the accused against conviction EXCEPT upon proof beyond reasonable doubt of every fact necessary to constitute the crime with which he is charged

o “use of reasonable- doubt standard is indispensable to command the respect and confidence of the community in applications of the criminal law.

o It is critical that the moral force of the criminal law not be diluted by a standard of proof that leaves people in doubt whether innocent men are being condemned”

· Takeaway point: The gov did not provide enough proof of this identity to be guilty. Impt- if the gov fails to provide proof of any of the elements of the crime then the D must be found not guilty. Intuitively doesn’t establish liability

o Burden of Production/ Burden of Persuasion

§ These are the two things necessary in proving a crime that must be fulfilled by gov.

o Production- requires the gov to introduce sufficient evidence that the defendant committed the crime to permit the trier of fact to make the ultimate determination of guilt

§ Usually referred to as “sufficiency of evidence”

· That there be enough evidence that the rational juror could find the defendant guilty on the charged offense

§ If prosecution fails to satisfy burden of production regarding any element of the crime, the D is entitled to a directed verdict of acquittal at the close of the state’s case-in-chief or end of trial.

· D has burden to prove any affirmative defense he raises.

· If D fails to satisfy burden, judge will not instruct jury on law pertaining to defense and D is not entitle to have jury consider issue in deliberation.

o Persuasion- “beyond a reasonable doubt standard”

The gov must prove the defendant committed the crime to such and extent that none of the jurors harbor a sufficient doubt

§ D need not offer defense. The burden of proof always rests with prosecution.

· Any defense used to negate an element of the crime, sufficiently raised by D, must be disproved by the prosecution.

· Although burden of raising affirmative defense is on D, burden of proof as to its non-applicability is on always on prosecution.

o Affirmative Defenses (responding to plaintiff’s claim)

· In Mullaney v Wilbur, the court ruled that where malice aforethought is an element of the offense, the Due Process Clause requires the prosecution to prove the absence of heat of passion beyond a reasonable doubt

o This was then distinguished in Patterson v NY when they said “proof of non-existence of all affirmative defenses has never been constitutionally required…” and therefore there is no reason to create this rule, although legislature has the right to require it

· Affirmative Defenses that Negate an Element of the Offense

o In US v Kloess, it stated there is not really any clear rule as to how affirmative defenses generally should be treated

§ There is agreement on one sort of affirmative defense:

· Any defense which tends to negate an element of the crime charged, sufficiently raised by the defendant, must be disproved by the government (as provided for by 1515c)

o Defendant lawyer must show he is entitled to its protection

§ All he would need to do, though, would be a licensed attorney who was validly retained to perform the legal representation which constitutes the charged conduct is sufficient to raise an inference of innocent purpose

· Any more than this would be too much burden on defendant, which is not how the cases should go

o The burden of proof as to its non-applicability is always on the government

Proving the Case


· Can prove by:

o Direct evidence (such as DNA, statement by the defendant)

o Circumstantial Evidence

· Gov needs to introduce sufficient proof so that a reasonable juror could find the defendant guilty

§ NOT that the evidence compels such a conclusion

Inferences/ Common Sense

Two types of facts that must be proven: Raw and Normative

o “raw” facts

§ who did what to whom, when and why, where

§ real observable world of the past

§ most important commonly challenged is criminal’s identity

§ in theory (although these can be erred), there is only one “right” answer waiting to be found

o “normative” fact

§ fact finder’s values play and especially large role

§ these do not have single, crystal clear answers

§ stronger when mens rea (criminal intent, guilty mind) requirement is negligence


§ disputes over what happened and over how events should be interpreted

o decisions about who is telling the truth or whose tale merits belief

§ cross examination turns on four broad techniques:


of discretion found in dealing out the maximum penalty.

· Sentencing

· After a defendant is convicted or enters a plea of guilty, the next step is the preparation of a presentence report (PSR) usually by the office of the court, such as the Probation Office, that will inform the basis for the court’s sentencing decision.

o The doc is crucial because it includes significant information beyond that available from trial or defendant’s admissions

o Usually, probation officer will interview defendant to gather info on record, family….

· One the PSR is complete, parties review it and can raise objections to the information contained in the report.

o If necessary, court can hold an evidentiary hearing in order to resolve any factual disputes between the prosecutor and defendant

· Before the court imposes a sentence, the parties have an opportunity to present info and arguments to the judge regarding the appropriate sentence

· In most cases involving the possible imposition of the death penalty, the sentencing phase can take days

· Once each side has had the opportunity to speak the judge imposes the sentence and the defendant, if sentenced to a term imprisonment, will be transferred to the jurisdiction’s prison authorities for the commencement of the sentence


o Indeterminate Sentencing (judge)

§ Legislature sets a maximum penalty, and the court decides what sentence is appropriate without exceeding this maximum.

o Advisory Sentencing Guidelines (judge + leg)

§ Mandatory Sentencing Guidelines – retribution

· Sometimes jurisdictions have mandatory guidelines

o Factfinding may violate the right to trial by jury declared in 6th

§ In Blakely v Washington (2004)-any and every fact that increases the defendant’s effective maximum sentence must now be admitted by the defendant or found by a jury beyond a reasonable doubt. Judges are not permitted to find facts that increase applicable sentences.

· In US v Booker, the federal guidelines were found constitutionally defective. As a remedy, Court invalidated only those portions of the guidelines and of the fed authorizing statute that made the guidelines mandatory—now they are merely advisory.

o Dissent argued that the guidelines were not unconstitutional and only mandatory guidelines would adequately serve the goal of uniform sentencing. Proper remedy would be to leave the guidelines but to mandate jury involvement instead of just factfinding by the sentencing judge.

§ Mandatory Minimum Sentence – rehabilitation, isolation

o Jury Sentencing – death penalty jurisdictions (so elected by society to pay the absolute maximum penalty possible)

§ Jury decides whether a death sentence is given

o Standard of Proof – preponderance of the evidence that justifies the sentence

§ Judge’s findings do not have to be “beyond reasonable doubt” at sentencing

§ Unless sentence is the maximum (most severe so demands reasonable doubt standard for both crime and sentence)

§ Eighth Amendment – prohibits disproportional sentencing, cruel and unusual punishment

o Standard of Review

§ Appellate court will not interfere with the trial judge’s conclusions unless they appear to be highly unreasonable, if the testimony required court to consider credibility of the witnesses

§ A judge’s legal, as opposed to factual, determinations are reviewed more closely by appellate court because those decisions do not require the reviewing court to consider issues related to the credibility of witnesses or the weight of the evidence based on observation of a trial proceeding or evidentiary hearing

· Judge engages in fact finding in indeterminate sentencing regimes, where a judge has a wide discretion to sentence a defendant anywhere between the statutory minimum and max sentences

· Based on pre-sentence and probation officer reports, or witnesses sometimes called by defense or prosecution, and on victim impact statements, a judge must make decisions about defendant’s:

o Character

o His or her likely recidivism

o Chances of rehabilitation

o General deterrent value of the sentence in discouraging future crimes by other potential offenders

o And more facts relevant