CRIMINAL
LAW OUTLINE
I. INTRODUCTION
Preliminary Hearing
- (1) probable cause to show crime was committed, and (2) probable cause to
show D did it.
Difference between
civil and criminal sanction for same action - stigma. Goal of criminal law is to punish, make restitution. Goal of tort law - compensate the victim.
Consent of injured -
may be a defense in torts but often not in criminal law. Similarities: proximate cause, intervening cause, duty to act, self-defense.
"preponderance
of evidence" vs. "beyond a reasonable doubt"
criminal law is
slower to borrow from the civil statutes than the civil law is to borrow from
criminal statutes.
Desuetude - laws
that are not enforced wither away.
II. CRIMINALIZATION
Factors affecting
criminalization: 1) does it have moral
dimension? 2) can the law be
enforced? 3) will the law promote
respect for the law? 4) will the
cost of enforcement be greater than society's benefit? 5) will investigation methods necessary to
enforce the law be unreasonable or degrading? 6) does the crime have a victim?
A. CRIME AND MORALS
Sources of
crime: 1. legislatures; 2. Constitution - treason; 3. administrative regulations;
4. martial law,
military law, tribal law; 5. treaties
(genocide); 6. common law crimes.
B. DEFINING CRIMINAL CONDUCT
1. Principle of Legality - violate specific rules made known in advance. Limit on the government. If the Principle of Legality were strictly
followed, statutes would be narrowly construed, never retroactively. To some extent Pple of Legality included in
Due Process.
2. Common Law Crimes
Something
against the health, safety, and welfare of the public. (generic) Most jurisdictions held common law crimes
violate the Pple of Legality - unconstitutional, no advance warning. Requires public harm, not private harm.
3. Legislature-made Crimes (a) Vagueness and Overbreadth
Vagueness
- barred by Due Process of the 14th and 5th
Overbreadth - barred by 1st Amendment
Three
bases for examining VAGUENESS: (1) does
the statute in question give fair and advance notice to those persons
potentially subject to it - otherwise trap the innocent by not providing fair
warning? (2) does it adequately guard
against arbitrary and discriminatory enforcement - ad hoc basis for
policemen and juries? (3) does it
provide sufficient breathing space for First Amendment rights? "men of common understanding"
must necessarily guess at its meaning and differ as to its application Connally Test
Standard
used in applying vagueness statute - judicial gloss on statute. Is IL SC's interpretation/refinement of the
law to "imminent" diversion constitutional? U.S. SC does not read vague statute as written, but as narrowed
by the state courts -violates the principle of legality.
Concerning
the antinoise ordinance: "we do
not have a general breach of peace" ordinance, but a statute written
specifically for the school context, where the prohibited disturbances are
easily measured by their impact on the normal activities of the
school." Therefore not vague. It is not overbroad as unduly
interfering with First Amendment rights, including right to picket on a public
sidewalk near a school, since expressive activity is prohibited only if it
materially disrupts classwork. Grayned
v. City of Rockford
Principle
of Construction - each word is meant to mean something different. They are mutually exclusive.
(b) Ex Post Facto and Bills of Attainder - Article I, '' 9 & 10. 9 - Congress, 10 -states.
Ex post facto - retrospective laws.
Not permitted. Applied to
conduct permitted before the law. TWO
ELEMENTS: 1) retrospective
application 2) disadvantageous to
criminal accused.
Legislature
cannot pass law today to make activities of yesterday a crime. Citizen responsible for law at time of his
actions. Punishment is rendered as it
was at the time of illegality.
"Photograph of laws at time of crime."
Also
cannot change retroactively procedures - only those procedures that protect a
substantial right - to disadvantage of the criminal accused. If legislature passes a new jury law, that
law would not apply to illegalities performed prior to the passage of the law.
Any law
that causes a defendant to suffer a disadvantage, however, does not offend this
provision. The Supreme Court has
distinguished between disadvantageous changes affecting procedure and those
altering substantial personal rights.
The ex post facto provision was not designed to limit the legislature's
prerogative of altering both remedies and procedures which do no involve
matters of substance. Increasing the
penalty for a crime and imposing it retroactively violates the ex post facto
guarantee. Altering the method used to
determine whether the death penalty was imposed was constitution. It did not change the "quantum of
punishment" attached to the crime.
New Florida procedures did not change the definition of the crime or the
amount of proof necessary for guilt.
Parole
laws do not violate ex post fact provision - no constitutional right to parole.
If act is
not harmful to the criminal, then ex post facto does not apply.
Does ex
post facto apply in judicial decisions? - only applies to legislative acts.
Bills of
Attainder - legislative punishment of people who are readily identifiable. Cannot single out group or individual for
punishment. Bill of Attainder still is
not identifiable. If purpose of the
bill is punishment, it is a bill of attainder.
Not applicable to procedural matters.
(Originally, death sentence passed by legislature without benefit of
trial - legislative decree - Struck Down)
Example: Congress passed law that presidents' papers
must be taken. Nixon claimed Bill of
Attainder - Nixon claimed impetus of the bill was punishment. Supreme Court did not find for Nixon on
issue of who owns presidential papers.
Stated if Nixon had a financial loss, compensation would be made.
Example: All lawyers must pay a $200 tax - bill of
attainder. Neil Cohen must pay a $200 tax
- bill of attainder. Reaches a
particular person or easily identifiable group.
4. Substantive Due Process - limit on legislature's capacity to declare certain
actions criminal. Judicial
second-guessing. Courts ask whether
law serves a public purpose/interest.
U.S. SC now says belongs to legislature. Does not deal with substantive due process anymore. At the state level, still viable.
5. DOUBLE JEOPARDY CLAUSE - 5th Amendment bars prosecution for same crime twice,
includes merged crimes.
III. PUNISHMENT
A. RATIONALES
FOUR MOST COMMON
RATIONALES:
1) retribution -
societal revenge and expiation (atone for misdeeds through punishment). Still commands the most public support. Claimed to suppress acts of private
vengeance. May serve as check against
tyranny - you should not be punished unless you did something wrong.
2)
incapacitation. Isolate the offender or
disable him from offending. Requires
you to predict future behavior. When no
longer a threat, then you can release.
3)
rehabilitation - correction or
reformation. Lose motive to do
crime. Must predict future
behavior. Most in conflict with the
other rationales.
4) special
deterrence - exposing a criminal to sufficiently distasteful punishment, that
individual will lose the desire to commit crimes.
4) general
deterrence - punishment will hopefully deter other would-be criminals from
committing crimes. Deterrence -
important in cases like income tax evasion where system relies on
self-assessment.
5)public education -
inform the general public of what conduct is deemed socially unacceptable.
Regina
v. Dudley and Stephens. An innocent person may not be killed in
order to save the life of another.
Where the victim has not assaulted or otherwise endangered the killer,
the killer has not, by necessity, been placed in a position which permits him
to kill the innocent victim. The
extreme necessity of hunger does not justify larceny, nor can it justify
murder. While, generally, the
preservation of one's own life is a duty; in some cases, the highest duty may
be to sacrifice it. Neither can the
temptation caused by hunger be called an excuse.
COMMENT: While this case actually discusses a defense to murder, necessity
(which here did not excuse the murder), the case appears here in the casebook
more for its moral discussion of why the defendants, unwillingly placed in a
tragic situation, must be punished for
their act. The court notes that
"Law and morality are not the same, and many things may be immoral which
are not necessarily illegal," but that law would be divorced from morality
if the temptation to kill, which arose, could be an excuse for the actual
killing. Even if the temptation were a valid
excuse, who is to determine who must die so that the others might live? (The death sentence was later commuted by
the crown to six months' imprisonment.)
2. SENTENCING
Since 95% of those
charged with crime enter a plea bargain, the only issue is sentencing.
TREND -
jurisdictions adopt sentencing schemes which place the greatest emphasis upon
the nature of the crime which was committed and comparatively little upon the
characteristics of the particular offender - mitigates good behavior argument for
parole.
TREND - Retribution
became dominant over rehabilitation in the early 1970s.
Sentencing
procedures have changed radically in the last few years. Judges decide sentences in all 50
states. Effect of statutes: REDUCE JUDGES' DISCRETION. Predominantly, legislature sets both min and
max sentence for a crime.
Right of allocution
- right to speak at sentencing.
When a
jurisdiction's jails and prisons are full, sentencing decisions must reflect
this reality. Emergency valve - early
release due to unconstitutional overcrowding.
Sentences can be determinate
and indeterminate. A sentence of
5-10 years is indeterminate.
Incapacitation,
rehabilitation, and deterrence - require you to predict future behavior and
dangerousness.
"Equal
Protection" has infrequently been successful in challenging sentences or
sentencing procedures. The key is
finding an impermissible discrimination.
No federal
parole. 15% reduction for good
behavior.
PROBATION - suspend
execution and suspend imposition.
In the case of a probation violation, the court may be bound by the
original prison sentence it imposed in the suspended execution model, but has
no such limits in the suspended imposition model. Probationers enjoy a conditional liberty that cannot be taken
away without certain due process procedures.
FACTORS a FEDERAL
COURT must consider in determining whether to impose a FINE: (1) D's ability to pay, (2) burden that payment of the fine will
impose on both the D and his/her dependents,
(3) whether restitution will be made by D to victim.
SCANDINAVIAN
"DAY FINE" - fine a person the equivalent to a certain # of days pay
for work, e.g., 100 days. This system
is fair to both rich and poor, since it punishes them proportionately and
equally in terms of relative loss.
FORFEITURE OF
PROPERTY - another sentencing option.
RICO - bars a person
from receiving income from racketeering or illegal debt collection
activities. 18 U.S.C. ' 1962. SC has upheld the forfeiture of drug
proceeds used to pay for defense counsel.
Book proceeds restrictions against criminals violate First Amendment.
RESTITUTION -
another alternative to sentencing.
DIVERSION - if does
not violate law again, or meets community service requirement, charges will not
be filed or will be dismissed.
PROCEDURES - often
the rules of evidence do not apply at sentencing hearings, making hearsay
evidence both admissible and frequently used.
Minnesota
guidelines: 1) prescriptive - establish
its own policies; 2) de-emphasize
imprisonment for property crimes, and emphasize for violent crimes; 3) in order to attack sentencing
disparities, established narrow sentencing ranges (e.g., 30 - 34 months, 50 -
58 months); 4) adopted "just
deserts" as the governing premise of its policies concerning who received
prison sentences; 5) had to take
existing prison capacity as given, thus if lengthened one sentence area would
have to shorten in another. 6) forbade
consideration of education, employment, marital status, etc. in sentencing
decision - to avoid discrimination against minorities, women, or low income groups.
SENTENCING MATRIX -
requires the calculation of GRAVITY OF CRIME against CRIMINAL HISTORY.
Victim's rights
movement = harsh sentence.
B. EIGHTH AMENDMENT
The Eighth
Amendment's cruel and unusual punishment clause is used to challenge the
severity of a sentence. The offender
claims that a particular sentence is so harsh that it is unconstitutional. These claims are rarely successful. It is not clear to what extent the eight
amendment embraces a requirement that sentences be proportionate to the
offense.
The prohibition has
three aspects: (1) limits the methods
which may be used to inflict punishment;
(2) it limits the amount of punishment which may be prescribed for
various offenses; and
1. Status Crimes
(3) it bars any and
all penal sanctions in certain situations - invalidate California law making it
a crime to be "addicted to narcotics." Robinson v. California.
The punishment (confinement) is not cruel, but the conduct should not be
the subject of criminal sanction. Now
laws incorporate actions:
"spreading" AIDS, "driving" drunk
Public drunkenness
distinguished from status crime in Powell v. Texas. However, White said some public drunks you
cannot punish: 1) homeless and 2) involuntarily
drunk.
2. Death Penalty
Gregg
v. Georgia 1976 the U.S. Supreme
Court reinstated the death penalty. (1)
bifurcated hearing, (2) list of aggravating circumstances, (3) tries to be
predictable.
Fact that it does
not deter does not matter; retribution is sufficient. Aggravating circumstances list satisfies the concerns of Furman
as to capricious and arbitrary administration.
No clear way to weigh aggravating and mitigating circumstances. Cannot have mandatory death penalty, must
allow for mitigating circumstances.
TREND: number of aggravating circumstances has been
increasing.
MCCLESKEY
V. KEMP, (1987). The death penalty is not unconstitutional
because of statistics demonstrating a tendency towards racial bias (victim) in
its application. To prove an Equal
Protection violation, a person must prove he was the victim of purposeful
discrimination, not a discrim. factor.
Payne
v. Tennessee (1991). May include victim impact statement. No standards for jury use.
It is
unconstitutional for a state to mandate the death penalty for a certain degree
or category of murder; or for those murders unaccompanied by a few specified
mitigating circumstances; or for a sentencing judge to disregard as a matter of
law relevant mitigating circumstances.
capital punishment
must "be imposed fairly, and with reasonable consistency, or not at
all," for "a consistency produced by ignoring individual differences
is a false consistency."
8th Amendment
requires some proportionality - cannot have death penalty for nonheinous
felony. Minors can be executed.
3. Cruel & unusual punishment in other
contexts
Courts have seldom
held a punishment may be cruel due to excessiveness. Courts are seldom to strike down sentence on proportionality
grounds.
Harmelin
v. Michigan 1991. No majority opinion today on
PROPORTIONALITY. Harmelin given a life
sentence for drug possession. Today, if
we have a grossly disproportionate sentence - "way out of whack" -
seven justices would strike. Scalia's
approach would remove proportionality for noncapital crimes.
Legislatures and
judges can give pretty severe penalties.
C. BURDEN OF PROOF
1. MULLANEY v. WILBUR (1975). Maine homicide
statute struck down that enabled state to get conviction for murder without
proving malice aforethought. D had to
prove manslaughter/heat of passion of automatically charged with murder. Court said this law denies Due Process by
shifting burden of proof onto D. For a
constitutional law, the state must prove each element of its case beyond a
reasonable doubt. The prosecution must
prove the absence of the heat of passion on sudden provocation when the issue
is properly presented in a homicide case.
2. In PATTERSON v. NEW YORK, (1977), the
Supreme Court held that the modern "extreme emotional disturbance"
version of "heat of passion" could be interpreted as an affirmative
defense w/o a denial of DUE PROCESS. As
an affirmat. defense, the burden of proof was on the D who raised the
defense. Separate defense from elements
of the crime - consti. permissible.
3. Burden of production - responsible for
producing evidence, government. D no
burden. Burden of persuasion - gov't
must convince jury. Burden shifting -
prima facie case frequently. If D
asserts insanity, must introduce evidence to support a prima facie case, then
burden shifts to gov't to get negative.
MARTIN
v. OHIO. Common law rule placing
burden for proving self-defense on D held constitutional. Burden of production on D. An affirmative defense does not negate an
element. (Only Ohio and South Carolina
have not abandoned the common law rule and require the prosecution to prove the
absence of self-defense when raised by the D.
Could juror feel reasonable doubt about self-defense but not
preponderance of the evidence? Is
beyond a reasonable doubt for elements sufficient?
Indiana
has been trying to write laws that say "possession of another's property
is theft" then allow defense for permission, emergency = changes lack of
consent from element and shifts burden to D.
4. Defenses fall under 1) exception, 2)
defense, and 3) affirmative defense categories.
5. Mandatory presumptions (i) conclusive or
(ii) rebuttable, and permissive inferences.
When conclusive, gov't does not have to prove intent only, e.g.,
unexplained presence. After FRANCIS
v. FRANKLIN (1985), prosecutors cannot use presumptions to prove an element
of a crime; state must prove each element beyond a reasonable doubt. Reasonable presumption allowed in
defense: a mandatory presumption that
works to disprove an element (i.e. helps the D and does not remove any
of the state's responsibility to prove each element) is constitutionally
permissible. In other words, not all
presumptions are invalid in criminal cases.
On the prosecution side, "presumption language" replaced with
"inferences" today for jury instructions. Permissive inferences do not violate the Due Process clause
unless the conclusion is one that reason and common sense would not justify in
light of the proven facts.
Court does
not decide issue of whether a mandatory presumption that shifts only a burden
of production to the D is unconstitutional.
PART
TWO: CRIMES
I. THE CRIMINAL CODE
Exception - burden on D by preponderance of evidence. State does not have to prove anything. Exception: law enforcement officer carrying
a gun on school property. Burden of
persuasion on D.
Defense - burden on D to produce. Burden of persuasion - on gov't beyond a reasonable doubt. To escape acquittal, gov't must negate
defense beyond a reasonable doubt.
Insanity, self-defense.
Affirmative
Defense - Burden on D for
production and persuasion. 51%
probability must be established by D.
"Intoxication"
is not a "defense" in TN, but it can get you off the hook like a
defense 
1 really is a defense.
By default if you
can't tell, it is a defense.
Rule of Lenity 
2 rule of strict construction against the gov't. Close cases tilt in favor of D.
TREND = many states
want an unbiased reading, interpretation of their criminal statutes just like
any other statute. No bias on vague
provisions against the government.
II. BASIC ELEMENTS: the body and mind
Elements of a
crime: 1) wrongful act - actus
reus; 2) mens rea - evil mind; 3) resulting harm 4) circumstances 5)
causation (both factually and proximately)
Relationships: mind must actuate the act; the act
must cause the harm.
Example: drive to someone's house intending to
shoot/kill him, and runover by accident instead. Link between mens rea and actus reus not present.
Split second in time
fixes mens rea and actus reus.
The physical act and
the mental state must exist at the same time.
A.
ACTUS REUS - "voluntary" act as well as an omission where there
was a duty to act. "Voluntary
act" has imbedded mens rea component.
Omission of duty
- duty limits liability from the whole world.
Duty to Act: (1) statute,
(2) contract, (3) relationship, (4)
voluntary assumption of care/rescue attempted,
(5) creation of peril.
kill someone while
in convulsion - no crime. Acting like
automaton or automatically - no actus reus, not voluntary, must look inside
criminal's head.
If you start to
provide assistance, you must continue.
conscious
exercise of the will. Contrast: (1) conduct that is not the product of the actor's
determination; (2) Reflexive or
convulsive acts; (3) unconscious or
asleep - unless D did so purposely to engage in dangerous behavior.
Actus reus -
required by 8th Amendment, Powell v. Texas leading the way. Yet TN has no actus reus in our new criminal
code. ???
B. MENS REA - the more mens rea elements, the more prosecution must prove.
Four mens rea
elements in a modern penal code: 1)
intentionally (in common law `purposefully, willfully,' 2) knowingly - I thought it would
happen, 3) recklessly - I thought it
could happen and went ahead, 4)
criminal negligence - I should have known.
Higher
degree of fault suffices.
strict liability
crimes - have no mens rea element.
There are few strict liability crimes.
(prosec. would like few or no mens rea elements, therefore strict liab.
is ultimate) Normal routine way -
conviction based on circumstantial evidence.
Example: speeding (intent not
important).
For knowingly,
"reasonably certain" < "practically certain"
negligently - only
mens rea element that does not have subjective component. Must have gross deviation; otherwise
only collect in tort law.
recklessly - aware
of risk and disregarded it (subjective) also an objective element on gross
deviation from standard of conduct of a reasonable person.
2. Enumeration of Specific Intent Crimes
1) Solicitation: intent to have the person
solicited commit the crime;
2) Attempt: intent to complete the crime;
3) Conspiracy: intent to have
the crime completed;
4) First degree premeditated murder (where so defined by statute): premeditation;
5) Assault: intent to commit a battery;
6) Larceny and robbery: intent to
permanently deprive the other of his interest in the property taken;
7) Burglary: intent to commit a felony in
the dwelling;
8) Forgery: intent to defraud;
9) False pretenses: intent to
defraud;
10)
Embezzlement: intent to defraud;
3. Malice - Common Law Murder and Arson
The intents required
for "malice" crimes do not take the specific intent
defenses. The common law created this
special mental state category especially to deny to murder the specific intent
defenses: voluntary intoxication and
unreasonable mistake of fact.
4. General Intent - Awareness of Factors
Constituting Crime