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

Henning Criminal Law Winter 2015

“You should not recite every tangentially relevant piece of information in an answer. One aspect of a successful exam involves exercising your judgment about what facts, legal theories, and issues are relevant to answer the question in the time and space allowed.” Exam instructions.
They key here to me is “recite.” Don’t just spit out, but as long as you (a) can make your point appear relevant and (b) have space, then it’s probably worthwhile.

Develop a checklist for statutory interpretation.
Make a checklist for crimes—make sure you put in included offenses.

Introductory issues
Proving the crime
“The Constitution entitles a defendant to a jury trial if he can be incarcerated on a charge for more than 6 months for the offense.” 47.
Motion for a judgment of acquittal
Similar to a summary judgment or directed verdict in a civil trial, but
Only the defendant can move for it.
This is a very important part of trial, though not sure why.
Double jeopardy
Cannot be tried for the same offense twice.
This is what gives juries the chance to nullify the law: the court cannot review a not guilty verdict.
Dual Sovereignty Doctrine
An important exception to the double jeopardy rule
Allowing the fed/state to bring charges for the same offense, even if the state/fed failed to get a guilty verdict the first time.
Must demonstrate a legal error in the trial or pre-trial procedure
Typical bases for the appeal
Insufficient evidence
Improper jury instruction
Evidentiary challenges
Constitutional challenge.
If granted, generally the court will order a new trial.
However, “if the government fails to introduce sufficient evidence of guilt then a ‘not guilty’ verdict must be entered.” 49.
Cannot appeal a not guilty verdict, but
If the court
Dismisses a charge before trial, OR
Grants judgment of acquittal after the jury returns a guilty verdict, THEN
Government can appeal.
CAN appeal sentencing issues, but not “a jury decision not to impose a death sentence.” 49.
Standards of review
Trial standard: beyond a reasonable doubt
On appeal: was there enough evidence that a rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt? Jackson v. Virginia.
Burdens of production/persuasion
Production: sufficiency of evidence
This standard can differ by jurisdiction
In some, must just provide some evidence sufficient for the jury to find that the element or defense exists.
In others, there must be evidence sufficient to meet the burden of persuasion:
So, if the burden of persuasion is “preponderance of the evidence,” THEN
The burden of production must allow for the burden of persuasion to be met on a preponderance of the evidence.
Persuasion: beyond a reasonable doubt. 207.
Affirmative defenses
The government does not have to prove the “non-existence of all affirmative defenses.” Patterson v. New York (SC, 1977).
“Thus, if the legislature designates an element as an affirmative defense, the legislature does not have to require the state prove that element.” 208.
Courts are divided on which affirmative defenses require the government to carry the burden of persuasion, yet, “There is agreement, however, 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.” 209.
Raw v. normative facts
“Who did what to whom, when, and why.” 234.
Something that happens in the real world.
A fact “for which even time travel would not present a single, crystal clear answer.” 235.
Involves mental state determination, to varying degrees
“The normative content of mental state inquiries is stronger still whenever the mens rea requirement is negligence.” 235.
^ i.e., who is a reasonable person, and what would they do?
Proof of normative facts often depends on proving raw facts first.
Credibility and challenges thereto—questioning the witness’ abilities to
What color was his shirt?
Didn’t you tell the police something other than what you’re saying now?
Do you need glasses? Were you wearing them?
How far from the robbery were you?
Tell the truth
Catch them in a lie
You said you were ten feet away. How far away do you think 10 feet it?
General thoughts
“What distinguishes a criminal from a civil sanction and all that distinguishes it, it is ventured, is the judgement of community condemnation which accompanies and justifies its imposition . . . It is conduct which, if duly shown to have taken place, will incur a formal and solemn pronouncement of the moral condemnation of the community.” Henry Hart, 1958. 4.
As an advocate, this is one of the most significant “pressure points in the system” at which a lawyer can be influential.
Sentencing regimes: how do theories of punishment operate within sentencing regimes?
Indeterminate sentencing (judge)
Advisory sentencing guidelines (judge + legislature)
Mandatory sentencing guidelines (legislature; Blakely prohibits this, in general)
Under Blakely, a judge is not allowed to do factfinding that increases the applicable sentence when the increase would meet a mandatory guideline.
The idea here is that such factfinding must be done through defendant’s admission or through a jury finding the fact beyond a reasonable doubt. If this i

—poisoning the paramour and watching her die. 8.
“A sentence of confinement is reasonable if it appears at the time of sentencing that confinement is necessary ‘to accomplished the primary objective of protecting society and to achieve any or all of the related goals of deterrence, rehabilitation or retribution applicable to a given case.” 9.
So, the theories can and do compliment each other.
The judicial role in sentencing
Evidence and the pre-sentencing report (PSR)
Post-indictment, a report put together by an office of the court (generally). Interviews defendant and others to determine info about defendant’s
Previous criminal record
Also info from victim, investigators, prosecutors
And sometimes the defendant’s family/friends
Prosecution and defense then review, raise any objections. Evidentiary hearing if necessary to resolve issues.
Time for argumentation about the appropriate sentence.
Standard of proof at sentencing:
A judge’s findings only need to meet the standard of “preponderance of the evidence.” 14.
Prosecution and defense have a chance to persuade.
When a judge has wider latitude regarding sentencing, she may engage in some factfinding, using
PSR/probation officer report(s)
Victim-impact statements
Witnesses called by either side
^ this does not appear to be an exhaustive list
The court will then think through these facts in combination with a relevant theory of punishment/goal of punishment. 15-16.
Some sentencing regimes require more specific factfinding—such as level of cooperation w/ police, amount of cocaine possessed, etc. 16.
What procedures are appropriate in sentencing?
Should the jury play a role, as the representative of society at large?
Standard of review. 14.
Abuse of discretion
Highly deferential
The appellate court will not review credibility of witnesses or other factual determinations.
This is the approach taken in Jensen.
De novo
Legal reasoning/conclusions can be reviewed de novo.
The trial court has no special insight into the law, and so this standard can be appropriate.
Nothing, however, is mentioned about which standard is generally used.