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


Madison Federalist Papers – “Controlling the Governed…”

Criminal law controls our conduct. Provides our security. Why have criminal laws? What is their function? Why do we care so much about limitations? Four of the first eight amendments of the Constitution relate to criminal law.

Something uniquely blunt and forceful about criminal law about maintaining civil/social order. But also there is a great concern about encroaching too much into liberty.

The Constitution allows for a balance between order and liberty. Supreme Court “Ordered Liberty”. Different Categories of Crime. Different Levels of harm done.

Historically, two broad categories of crimes:

Malum in Se (Bad in itself) – Usually punished more severely
Malum Prohibitum (Bad because we say they are bad) –
requiring guns have trigger locks
Public Welfare

Crime is an act that causes social harm. Crime is an act against the whole community, even though it is perpetrated by an individual. 

When crimes are prosecuted in America, they prosecuted in the name of the state—formal way of demonstrating that a community is condemning the act. The prosecutor is the community’s representative. In addition, the criminal wrongdoer is subject to public punishments (giving up life, liberty, property, etc.), unlike private wrongs (torts, contract breech). 

Differences Between Common Law and the Statutory Law

Common law limits on criminal law making authority and Constitutional Limits that have common law rules

Ipsos Facto Clause
Bill of Retainers
Commerce Clause
Due Process Clause. 

Due process has both substantive and procedural component

5th and 14th Amendments provide for the presumption of innocence.

Principle of Legality
Legislatures create criminal offence, Fair Notice
Due process ensures notice and the ability to be heard.


Enforcing the Presumption of Innocence
Owens v. State (MD, 1992)
Facts:   Owens is drunk behind the wheel of his truck. He does not submit to blood testing and claims that his limited driving privileges (due to previous intoxication) does not include driving on a “private driveway”.
Rule:   A conviction based on circumstantial evidence alone may be sustained if the circumstances are inconsistent with any reasonable hypothesis of innocence.


Principle of Legality:

Requirement of Previously Defined Conduct
Commonwealth v. Mochan (PA, 1955)
Facts:   Mr. Mochan was indicted for intending to debauch, corrupt and embarrass Louis Zivkovich who had an outstanding reputation in the community. After conviction, Mochan appealed saying that his conduct was not punishable pursuant to either statutory or common law.
Rule:   When the conduct alleged is not prohibited expressly by criminal statute, a violation of the legality principle does not exist if a statutory provision permits punishment of common law offenses. Affirmed.

Note:   Which offenses are worthy of punishment? Arbitrary?

Keeler v. Superior Court (CA, 1970)
Facts:   Teresa Keeler became pregnant by a man that was not her husband. Her husband confronted her and kicked her in the abdomen. She had to have an emergency c-section which revealed the fetus dead, but previous to the kick, viable.
Rule:   The Due Process Clause is violated when a court construes a criminal statute contrary to the legislative intent and then applies that interpretation retroactively to a defendant’s conduct. Not guilty.

Note:   Was fetus a human being? Court looks to common law definition of “born alive” and determine that the legislature did not ? Consistent w/principle of legality.

Values of Statutory Clarity
In Re Banks (NC, 1978)
Facts:   State charged Mr. Banks with violating “Peeping Tom” statute. The trial could held statute “unconstitutionally vague”.
Rule:   Where a statute is challenged as being unconstitutionally vague, prior judicial interpretation of the ambiguous or unclear terms of the statute foils such a challenge.

Note:   If the statute can be interpreted two ways, the court should yield to the constitutional finding.

Rule of Lenity. . . . should be favored to the individual. Usually a last resort. Only used when every other rule of construction fails. Courts are very reluctant..

City of Chicago v. Morales (US, 1999)
Facts:   Chicago City Council enacts gang ordinances. Claim is that it is unconstitutionally vague.
Rule:   A criminal law must provide specific limits on the discretion of law enforcement personnel and provide sufficient notice to the public of what conduct is prohibited in order to comply with the requirements of the Due Process clause and avoid challenges based on vagueness.

Note:   If the statute can be interpreted two ways, the court should yield to the constitutional finding.

Statutory Interpretation

United States v. Foster (US, 1998)
Facts:   Leon Foster and Sandra Ward were manufacturing meth. Police pulled him over and arrested him. Under his trucks bed’s tarp was a loaded 9mm gun and was convicted of carrying a loaded firearm while trafficking illegal drugs.

entence reduced to probation.

US v. Gementera (US, 2004)
Facts:   Gementera stole letters from several mailboxes and plead guilty to mail theft. Had criminal record. Gementera argued that humiliation violates 8th Amendment.
Rule:   The imposition of public humiliation as a form of punishment is not violative of the 8th Amendment’s ban on cruel and unusual punishment under certain conditions.

Note:   The Constitution imposes a number of limits on punishment. Article 3 imposes limits on Treason. 5th Amendment prevents double jeopardy. Life liberty property. 8th Amendment prevents cruel and unusual punishment applies to both the federal and state governments.

Proportionality of Punishment:

Constitutional Principles
Cocker v. Georgia (US, 1977)
Facts:   Cocker breaks into couples home. Threatens, ties up husband, forcibly rapes and kidnaps wife by stealing car. He is caught and charged..sentenced to 20 years or death for the rape.
Rule:   The death penalty is a grossly disproportionate and excessive punishment for the crime of rape and is therefore prohibited by the 8th Amendment.

Note:   Court looks to a couple of theories, including national consensus on the subject and whether the punishment fits the crime. Seems to leave open the idea that the death penalty is ok for child rape…primarily a retributivist theory.

Ewing v. California (US, 2003)
Facts:   Man kidnaps and kills 12 year old. He has previous history and served only half of his previous sentence. Sentencing brings forward intense discussion of California’s Three Strike law.
Rule:   The 8th Amendment, which prohibits cruel and unusual punishment, does not require strict proportionality between the crime and sentence, but rather only prohibits extreme sentences that are grossly disproportionate to the crime.

Note:   Justice O’Conner offers a four-prong approach for analysis:

Primacy of the legislature
The variety of legitimate penological schemes
Nature of our federal system
8th Amendment does not require strict proportionality between crime and sentence