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

Criminal Law Outline

I. Introduction to the Criminal Law

A. The Basics of a Criminal Prosecution [pg 49] 1. The Investigation
2. The Charge
3. Pre-Trial Motions
4. Trial
5. Plea Bargain
6. Jury Instruction
7. Motion for Judgment of Acquittal
8. Double Jeopardy
B. Basis for an appeal [pg 50]—usual remedy for legal error is new trial. Insufficient evidence may result in “not guilty” verdict being entered. Government can’t appeal a jury’s “not guilty” verdict, but if a court dismisses a charge before trial, or grants an acquittal after jury returns “guilty” verdict, government may appeal.
1. Insufficient evidence
2. Improper Jury Instruction
3. Evidentiary Challenges
4. Constitutional Challenges
C. § 6.02 Proof Beyond a Reasonable Doubt [pg 199] 1. Davis v. United States, 160 U.S. 469 (1895)—”Strictly speaking, 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.”
2.  In re Winship, 397 U.S. 358 (1970)—”The reasonable-doubt standard plays a vital role in the American scheme of criminal procedure. It is a prime instrument for reducing the risk of convictions resting on factual error. The standard provides concrete substance for the presumption of innocence — that bedrock “axiomatic and elementary” principle whose “enforcement lies at the foundation of the administration of our criminal law.”
D. Reasonable Doubt [pg 199] 1. United States v. Jackson, 368 F.3d 59. (2nd Cir. 2004) [pg 199] ATF agent, investigating illegal possession of firearms by felons, went to Jackson’s apartment and asked him if he had any firearms or ammo, and Jackson showed them safe full of ammo. At trial, government provided no evidence of Jackson’s identity other than cert. that man of same name was convicted 18 years earlier. Defense did not testify, or call witnesses, but in summation asserted gov’t had failed to prove the elements of crime beyond a reasonable doubt. Jackson found guilty, by jury. 2nd Cir reverses, despite “knowing” D is guilty. Gov’t hadn’t met its burden of proof.
E. § 1.01 Theories of Punishment [pg 1-8] 1. The reasons society imposes particular punishment—incarceration, fine, probation, are the same reason behavior is criminalized—to punish “wrongful conduct” designated as a “crime” Why conduct is designated a “crime” is an important policy questions and day-to-day criminal law practice.
2. The Queen v. Dudley and Stephens, Queen’s Bench, 1884 [pg 1] 1) Facts– Ds, “boy” (Parker 17-18,) and Brooks were stranded in a lifeboat for 20 days, the last 8 w/o food, the last 7 w/o water. The boy was seriously ill, and Ds killed him to eat his flesh. 4 days later they were rescued and Ds were prosecuted for the youth’s murder. 
2) Court rejected necessity claim – may not lawfully take the life of another to save one’s own, when that other is neither attempting nor threatening to take yours, nor is guilty of any illegal act whatever toward you or anyone else. Court focused on the jury’s special finding that it was only “probable” that the three men would have died had they not killed the youth. Ds “with certainty” deprived the youth of his life, merely “upon the chance” of preserving their own lives. Sentenced to death (later commuted.)
3. What is a “crime”?—conduct which will incur a formal and solemn pronouncement of the moral condemnation of the community.
4. Theories of Punishment [“utilitarian theory” justified b

g “preponderance of evidence”
4. Indeterminate Sentencing [pg 15] b. Until early 1980’s leg. Established max. imprisonment for crime, sentencing judge imposed sentence he thought most appropriate. Based on probability of reform—parole supplemented.
5. Sentencing guidelines [pg 17] a. sentence did not reflect actual time served. “Truth in sentencing” movement pressured for up-front clarity.
6. Mandatory Sentencing Guidelines/ Mandatory Minimums [pg17] a. decreases power of judges, and increases power of prosecutors by allowing them to chose sentence by choosing what crime to charge.
7. Rationale for Guidelines
a. 1) enhance ability of justice system to reduce crime. 2) uniformity to narrow wide disparity in sentences 3) proportionality, imposing appropriate sentences for conduct of different severity.
8. Factfinding Strategy in Sentencing [pg 25] a. In indeterminate sentencing regimes, judge has wide discretion. Based on PSR and probation officer reports, witnesses, and victim impact statements, judge makes decisions based on character, likely recidivism, chance for rehab. and general deterrent value.
b. In sentencing guideline regimes, fact-finding more “express” (e.g. did D have a gun during crime.) Some jurisdictions, judges retain discretion to depart from guidelines (may have to offer explanation,) in others, sentences are mandatory.