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



A. Proving the Crime (p. 49-51; 199-210; 225-229)

Focus on statutes, parts of statutes (elements of a crime), and review details.

What is the goal of a criminal trial?

To punish
To deter

“The law holds that it is better that ten guilty persons escape than that one innocent suffer.” Lord Blackstone.
The system has the goal of as few false positives as possible.

Beyond a Reasonable Doubt
• In re Winship: “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.” [199] • Burden of Production
• Burden of Persuasion

This is created through:
In re Winship: “The reasonable doubt standard plays a vital role in the American scheme of crim pro. It is a prime instrument for reducing the risk of convictions resting on factual error.”

Government bears burdens of:

Production (producing evidence to establish guilt. Judge/Jury must have enough evidence so that they can be found guilty)
Persuasion (persuade the judge/jury that they are actually guilty).

Types of Proof

Direct (DNA evidence, gunshot evidence, autopsy, defendant testimony)
Inferences/Common Sense


US v Jackson
368 F.3d 59 (2d Cir. 2004) p. 199-204

Under a federal jury (12 member), they determined that Aaron Jackson was the same person arrested in a previous case. However, the appeal is based on the fact that the gvmt didn’t meet the burden of production. Could a) a rational trier of fact find the essential elements of the crime beyond a reasonable doubt?

If he doesn’t dispute the fact that he is the same person, then it is deemed to satisfy the burden. The Δ doesn’t have to do anything. He only has to say, “Prove it.”

Defendant’s Burden:
There is a presumption of innocence unless the government proves every element of the offense beyond a reasonable doubt. If gvmt’s proof is inadequate…if one element is not proved, than the entire prosecution has failed.

Aaron Jackson had possession of ammunition and he was a convicted felon.
Need: Key witness testimony that Jackson had ammunition, expert witness that concedes that it is ammunition, proof of previous conviction, proof that our Aaron Jackson is the same Aaron Jackson from the previous conviction.

The best source of information is the Δ. That is the one person that you cannot ask because of the 5th Amendment.

• Challenge to the sufficiency of the evidence
• Test: “[W]hether a ‘rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt.’ ” Jackson v. VA [200] • “A conclusion of identity cannot be made beyond a reasonable doubt unless experience, or statistics (if admissible), teach it is far more likely, given the similarities, that the two are the same person, than that they are two different people. The evidence must make it highly improbable that two different people are involved.” [201]

Government Proposal
Special Rule of Conditional Sufficiency: “[W]here a prior conviction is an essential element of the crime charged, a court certificate of conviction of a similarly named person will be deemed to satisfy the beyond-reasonable-doubt standard if the defendant offers no evidence in rebuttal.” [202]

Defendant’s Burden
“The court has recognized that the presumption of innocence requires that the accused be acquitted so long as the government has not proved every element of the offense beyond a reasonable doubt, without any requirement that the accused offer evidence (or indeed lift a finger) in his defense.” [203]

People v. Solmonson
683 N.W.2d 761 (Mich. App. 2004) p. 207-209

Raw Facts – Elements of an OUIL – Operating a motor vehicle, under the influence of alcohol.

Normative Facts – How do we tie him to committing the crime? Operating the vehicle? Organizing facts to establish a crime

was driving
tried to drive again
is driving as operating

The prosecutor did not try to hold his sitting in the car as operating. Instead they looked to the fact that he couldn’t have gotten there any other way.

Theories of Prosecution
• What are the “raw” facts? Normative facts?
• What are the prosecutor’s possible theories to obtain an OUIL conviction of the kind-hearted Mr. Solmonson:

— was driving
— will drive
— is driving as operating

Proof & Defense Theories
• “the prosecution need not disprove all theories consistent with defendant’s innocence; it need only introduce sufficient evidence to convince a reasonable jury of its theory of guilt despite the contradictory theory or evidence a defendant may offer. Thus, because jurors are presumed to follow the trial court’s instructions, the jury must have concl

st at sea for over three weeks.
· No food, and little prospect of being rescued.
· Parker (victim) is near death, unmarried, and could not resist.
· What rationale would justify punishing Dudley (Captain)? Stephens? Brooks?

Who Should Be Punished?

Problem One
Should the first mate alone be charged with murder, or should the other sailors be charged? How is this case different from Dudley & Stephens? Upon conviction of the first mate, what is the proper punishment? What would you argue for the defendant?

Where do you draw the line? Survival instincts kicked in….there was no fore thought. The cases look the same, but the lawyer’s job is to draw distinction. In D&S there was definite premeditation. However, there was premeditation in this case. They picked the people to throw over.

Crime focuses on acts of defendant. Character is largely irrelevant as to committing of the crime.

Sentencing is all about the character.

Problem Two
1) Which of the two defendants would you charge? 2) What would you argue on behalf of your client that s/he should not be charged? If your client is charged, what will you do next?

Do you go after a rich person who didn’t pay a small tax ($$$$$) or a small person who didn’t pay a large percentage of their tax ($$$)?


State v. Jensen
46 P.3d 536 (Idaho App. 2002) p. 8-13

A sentence of confinement is reasonable if it appears at the time of sentencing that confinement is necessary “to accomplish 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]

The Judicial Role

What is the appropriate standard of proof at sentencing: beyond a reasonable doubt, clear and convincing, or preponderance? Whose burden of persuasion?

No one/Both have the burden during sentencing. Std is preponderance of the evidence.