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Criminal Law
Wayne State University Law School
Broughton, J. Richard

Criminal Law Outline
Fall 2008
I.                   Introduction to the criminal law
–          Criminal law controls our conduct and provides us with security
–          There are 2 different categories/levels of crime
1.      Malum in se- something that is bad in and of itself ex) rape and murder
2.      Malum prohibitum- something that isn’t bad in itself but is bad because we make it bad (we prohibit it) ex) welfare fraud
–          Crime- an act that causes social harm.
·         A crime is an act upon the whole community even though it may have been performed by 1 person.
·         A crime is prosecuted by the authority of the State
·         The State is acting as the voice of the community that was harmed
·         Upon their conviction, the criminal is subject to public punishment
A.                Origins of the American Criminal Law
–          Most of the criminal law today is statutory, but it is based on common law
–          Common law is based on judicial action, not federal legislative action
–          Common law defined crimes in two categories 1. felonies 2. misdemeanors
–          American jurisdictions enforce Penal Codes
·         Some jurisdictions still recognize common law crimes but where there are statutes in place to punish a specific crime, the statute takes precedent
–          Model Penal Code (M.P.C.)
·         1952 American Law Institute began to draft a penal code designed to inspire criminal law reform in the state legislatures
·         The M.P.C. isn’t active in a state until the state legislature adopts it- then it becomes binding, until then it is persuasive
·         Most states have adopted M.P.C. codes into their state penal codes
B.                 Constitutional limits of Criminal Law
–          Most federal criminal laws are justified under Article 8 Sec. 2 of the US Constitution- its regulated under Commerce Law
–          There are 3 principles regarding Federal Law:
1.                  Congress can regulate the channels of interstate commerce
2.                  Congress can regulate the instrumentalities of interstate commerce ex) phone lines
3.                  Congress can regulate activities that have a substantial effect on interstate commerce
–          Article 1 Sec. 9-10 of the US Constitution prohibit Bills of Attainder and Ex Post Facto Laws
·         Bill of Attainder- Legislative act that inflicts punishment w/o a judicial trial
·         Ex Post Facto Law- a law enacted after a crime has been committed or attempts to punish someone through the retroactive application of a statute
–          * you need fair warning that your action was considered criminal under a statute. It is also designed to protect individuals from vindictive legislatures
–          A law is ex post facto if it:
1.                  Criminalizes an act that was innocent at the time it was committed
2.                  Aggravates a crime or makes it greater than it was at the time the crime was committed
3.                  Changes the available punishment by inflicting greater punishment than was available at the time the crime was committed
4.                  Alters the rules of evidence  or permits the reception of less testimony than is needed for conviction
–          By its terms the ex post facto clause only applies to legislative acts but the Due Process Clause prohibits judges from doing anything that the legislature is not allowed to do.
C.                 Due Process Clause of the US Constitution
–          There are 2 Due Process (DP) clauses found in the constitution
1.                  5th Amendment- applies to the Federal Gov’t
2.                  14th Amendment- applies to the States
–          These clauses can apply both to procedure and substance in the criminal law
1.      Substantive component of DP (Substantive Due Process)- protects un-enumerated individual rights that are deemed so fundamental to our scheme of liberty that no amount or process can take them away
2.      Procedural component of DP (Procedural Due Process)- is concerned with the procedures that the gov’t deploys to deprive individuals of their rights. It ensures that ppl have fair warning that their conduct can be punished & it allows them to be heard.

–          * DP helps preserve the presumption of innocence
–          Burden of production v. Burden of persuasion :
·         Burden of Production- refers to the party that is initially the one to come forward with evidence to bring a claim ex) in criminal law this burden is placed on the gov’t
·         Burden of Persuasion- refers to the party that has to convince the jury of the facts brought the claim. (also known as the “burden of proof”). This burden is usually on the state, but is sometimes on the defendant ie. When he is using the insanity defense.
D.                Chicago v. Morales ( US S.C. 1999) (p. 109)
·         In 1992 the Chicago City Council enacted the Gang Congregation Ordinance.
·         Hearings were conducted before the Ordinance was adopted to explore the problems that were created by city street gangs, in particular the consequences of public loitering by gang members
·         They found that the growing presence of gang members in public places is intimidating many law abiding citizens.
·         It also found that “loitering in public places by criminal street gang members creates justifiable fear for the safety of persons and property in the area and aggressive action is necessary to preserve the city’s streets…”
·         Commission of the offense involves 4 predicates:
1.                  a police officer (P.O.) must reasonably believe that at least 1 of the 2 or more persons present in a public place is a street gang member
2.                  the person must be “loitering” which is defined by the statute as “ remaining in any one place with no apparent purpose”
3.                  the P.O. must order all persons to disperse from the area
4.                  if any person, regardless if they are a gang member, refuses than they are guilty of violating the ordinance
Issue: Does the Gang Congregation Ordinance, which prohibits gang members from loitering w/ one another or w/ other persons in a public area, violate the Due Process Clause of the 14th Amendment?

Holding – The Ordinance does violate the D.P. Clause of the 14th Amendment because it is vague.

Legal Rule/Reasoning: The Court said that vagueness may invalidate a criminal law in one of 2 ways:
1.                  it may fail to provide the kind of notice that will enable ordinary people to understand the conduct which it prohibits
2.                  it may authorize and even encourage arbitrary and discriminatory enforcement
–          A law fails to meet the requirements of the D.P. Clause if it is so vague and standardless that it leaves the public uncertain of what it prohibits.
–          This particular law is vague because what loitering is covered by the ordinance and what is not.
–          A person is not given advance notice that their conduct is illegal because the officer doesn’t issue the order until after the conduct has already occurred.
–          The ordinance also violates the requirement that a legislature establishes minimal guidelines to govern law enforcement since no such guidelines were available.
–          The ordinance affords too much discretion to the police and not enough to the citizens who wish to use the streets.
–          In Justice O’Connor’s concurring opinion he says that it is ironic that ordinance defines “loiter” as remaining in one place with no apparent purpose, when gang members usually loiter with the purpose of publicizing the gang’s dominance, selling drugs, etc.

E.                 Principle of Legality
–          If a crime is already in the language of an existing statute then there isn’t a principle of legality, but if it is not already in the statute then this is an issue (look at the dissent in Commonwealth v. Mochan)

Commonwealth v. Mochan (Superior Ct. of PA. 1955) (p. 88)
·         Mochan continuously called and harassed Louise Zivkovich
·         She was a complete stranger to him and he called around 3 times a week saying filthy things to her over the phone
·         He suggested having sex with her as well as sodomizing her
·         He was charged with harassment and convicted.
·         He appealed on the ground that the conduct that was charged in the indictments are not considered criminal offenses in the state by any statute and they did not constitute a misdemeanor at common law.

Issue: Was he conduct considered a punishable offense under common law?

Holding: His conduct was considered a punishable offense under common law since he suggested sodomy

Legal Rule/Reasoning:
·         The State argued that although the action alleged in the indictments was not prohibited by statute, Section 101 of the PA Penal Code of 1939 states that every offense punishable by either statute or common law and not specifically provided for by this Act shall continue to be an offense punishable as heretofore.
·         The court said that it is irrelevant that there is no precedent, instead

ified only when a greater good is served; when the opposing evil is reduced (deterrence)
2.      Retributivism (Retribution)- punishment is justified when it is deserved
–          Deterrence – if the risk of punishment for committing the crime is greater than the benefit associated with committing the crime, then human beings won’t commit that crime (because there will be pain associated with it, and utilitarian believe that its human nature to for humans to maximize pleasure and minimize pain)
–          There are 3 types of deterrence:
1.      General- deter the community by punishing the def.
2.      Individual- specific deterrence directed at the individual committing the crime; ex) death penalty
3.      Incapacitation-  the def. is physically prevented from committing the crime again; ex) chemical castration of sex offenders
4.      Reform- rehabilitation
–          The retributivist doesn’t care if we deter crime or whether any good comes to the community. They punish simply because they believe the criminal deserves it
–          The criminal committed a morally heinous act and they deserve the condemnation of the community
–          Negative Retrib.- guilt is the only necessary condition for punishment
–          Positive Retrib.- we can punish people who are guilty and we must

Revenge v. Retribution:
–          Retribution applies to public laws not, not necessarily discrete harms or injuries
–          It is limited by proportionality (the punishment must fit the crime)
–          It also looks at punishment as a moral duty
–          Revenge is limitless and personal
–          It involves taking pleasure in someone’s pain
·         There are 2 types of Retribution:
1.      Assaultive (this is not really a retributivist view because it leans more towards revenge)
2.      Protective (this doesn’t seek revenge, it instead seeks moral balance in society)
Criticism of Utalitarianism- if followed faithfully, it would allow super harsh penalties for not so good behavior
Criticism of Retributivism- many people think that it is just plain cruel. Many also argue that it attempts to seek pain through punishment even though it may serve no good to society (unlike utilitarianism). It also doesn’t look at any motive to the crime committed

The Queen v. Dudley & Stephens (p. 48)
–          The cannibalism case (looks at murder committed during a time of life and death)

People v. Superior Court (Du) (p. 50)
–          Soon Ja Du owned Empire Liquor Store w/ her family
–          She was at this particular location because she told her son to take the day off and work at their other location. He was threatened by gang members
–          The def. testified that the 15 yr old victim, Latasha Harris, walked in her store, went to the refrig. Isle to get a bottle of OJ and put it in her bag
–          When she approached the counter she asked her if she was going to pay for the orange juice and the vic. Replied “what orange juice”
–          Du tried to take the bottle out of the bag and a fight ensued
–          The vic hit her in the eye, and when Du got up she threw a chair at her
–          When the chair missed she shot her
–          The vic had money in her hand and it looked like she was planning on paying
–          She was convicted of voluntary manslaughter

People v. Du (p. 53)
–          The judge originally sentenced Du to 10 yrs in prison, but then reduced it to probation
–          She said that she believed Du was sorry and she wouldn’t do it again
–          She also didn’t think it was fair to punish her severely just to keep the peace in the black community they was outraged