BLACK LETTER OUTLINES Criminal Law - Westlaw

1 CriminalLawby Joshua DresslerFrank R. Strong Chair in LawMichael E. Moritz College of LawThe Ohio State UniversitySECOND EDITIONMat #41030653 BLACK LETTER OUTLINEST homson Reuters created this publication to provide you with accurate and authoritative informationconcerning the subject matter covered. However, this publication was not necessarily prepared bypersons licensed to practice law in a particular jurisdiction. Thomson Reuters does not render legalor other professional advice, and this publication is not a substitute for the advice of an attorney. Ifyou require legal or other expert advice, you should seek the services of a competent attorney orother LETTER Seriesand BLACK LETTER Series design appearing on the front coverare trademarks registered in the Patent and Trademark Office.

2 West, a Thomson business, 2005 2010 Thomson Reuters610 Opperman DriveSt. Paul, MN 55123800 313 9378 Printed in the United States of AmericaISBN978 0 314 92750 7 Capsule Summary ofCriminal Law PART ONE: INTRODUCTORY PRINCIPLESI. Criminal LAW OVERVIEWA. Criminal versus Civil 1. The Essence of the Criminal LawWhat distinguishes a Criminal from a civil sanction and all that distin-guishes it, is the judgment of community condemnation that accompa-nies and justifies its imposition. A crime is (or, at least should be)limited to conduct that, if duly shown to have taken place, will incur aformal and solemn pronouncement of the moral condemnation of Sources of the Criminal Law1. Common Law Common law is judge-made law. For the most part, British commonlaw became American common StatutesToday, all Criminal lawyers in this country turn first to a book oftencharacterized as a penal code that contains legislatively-drafteddefinitions of crimes, defenses to crimes, and other relevant doctrines ofcriminal law, which apply in that lawyer s Model Penal CodeThe Model Penal Code (typically abbreviated as MPC ) is a codecreated in the 1950s and adopted in 1962 by the American Law Institute,a prestigious organization composed of top judges, scholars, and law-yers.

3 Portions of the MPC have become law in many Limits on the Criminal LawState and federal legislation is subject to the strictures of the United StatesConstitution (and, with state laws, the constitution of the relevant state).Some of these strictures are discussed throughout this Burden of Proof: BasicsA basic American principle of Criminal law is that a defendant is presumedinnocent. The Due Process Clauses of the Fifth and Fourteenth Amendmentsof the Constitution require that, to convict a defendant, the government mustpersuade the factfinder beyond a reasonable doubt of every fact necessary toconstitute the crime Judge versus Jury1. Constitutional LawThe Sixth Amendment to the United States Constitution provides that in all Criminal prosecutions, the accused shall enjoy the right to aspeedy and public trial, by an impartial jury.

4 Despite the phrase inallcriminal prosecutions, the Supreme Court has generally limited the2 CAPSULE SUMMARY right to a jury trial to prosecutions for crimes for which the maximumpotential punishment exceeds incarceration of six Jury NullificationJury nullification occurs when the jury decides that the prosecution hasproven its case beyond a reasonable doubt, but for reasons of conscienceit disregards the facts and/or the law and acquits the defendant. Jurorshave thepowerto nullify, but not therightto do so. Therefore, adefendant is not entitled to have the jury instructed that it may nullifythe TOOLS OF THE Criminal LAWA. Theories of Punishment1. Different TheoriesTwo broad theories of punishment Principles of Utilitarianisma. Augmenting HappinessUtilitarianism holds that the general object of all laws is to augmentthe total happiness of the community by excluding, as much aspossible, everything that subtracts from that happiness, , every-thing that causes mischief (pain).

5 B. Role of PunishmentBoth crime and punishment are evils because they both result inpain to individuals and to society as a whole. Therefore, the pain ofpunishment is undesirable unless its infliction is likely to prevent agreater amount of pain in the form of future Forms of Utilitarianismi. General DeterrenceA person is punished in order to send a message to others (thegeneral society or, at least, persons who might be contemplat-ing Criminal conduct) that crime does not SUMMARY3ii. Specific DeterrenceDis punished in order to deterDfrom future Criminal is done in either of two ways: byincapacitation(incarcera-tion ofDprevents her from committing additional crimes in thegeneral community for the duration of her sentence); and/or byintimidation(D s punishment serves as a painful reminder, sothat upon releaseDwill be deterred from future criminalconduct).

6 Iii. RehabilitationAdvocates of this form of utilitarianism believe that the crimi-nal law can prevent future crime by reforming an individual, byproviding her with employment skills, psychological aid, etc.,so that she will not want or need to commit offenses in Principles of Retributiona. Just DesertsPunishment of a wrongdoer is justified as a deserved response towrongdoing. Retributivists punishbecauseof the wrongdoing thecriminal gets his just deserts regardless of whether such punish-ment will deter future RationaleWrongdoing creates a moral disequilibrium in society. The wrong-doer obtains the benefits of the law (namely, that other people haverespectedhisrights), but he does not accept the law s burdens(respecting others rights). Proportional punishment of the wrongdoer paying his debt brings him back into moral equilibrium.

7 An-other justification is that both crime and punishment are forms ofcommunication: one who commits a crime sends an implicit mes-sage to the victim that the wrongdoer s rights are more importantthan others rights; punishment is a symbolic way of showing thecriminal and reaffirming for victims that this message was proportional to the offense defeats the offender: itbrings him down to his proper place in relation to SUMMARYB. Proportionality of Punishment1. General PrincipleA general principle of Criminal law is that punishment should beproportional to the offense Utilitarian MeaningPunishment is proportional if it involves the infliction of no more painthan necessary to fulfill the law s deterrent goal of reducing a greateramount of Retributive MeaningPunishment should be proportional to the harm caused on the presentoccasion, taking into consideration the actor s degree of culpability forcausing the Constitutional LawThe Eighth Amendment Cruel and Unusual Punishment Clause prohib-its grossly disproportional Death Penalty CasesThe Supreme Court has held that death is grossly disproportionalpunishment for the crime of rape.

8 Because the latter offense does notinvolve the taking of human Imprisonment CasesAccording to the Supreme Court s most recent pronouncement,there is only a very narrow proportionality principle outside thecontext of the death penalty. The legislature (not the judiciary) hasprimary authority in setting punishments. No non-capital incarcera-tive punishment will be declared unconstitutional unless there areobjective grounds not simply a judge s own subjective views of thepropriety of the punishment for determining that the punishmentis grossly disproportionate to the Legality1. Requirement of Previously Defined Conducta. General PrincipleThe so-called principle of legality is that there can be no crimewithout (pre-existent) law, no punishment without (pre-existent) SUMMARY5b. Constitutional LawThe principle of legality not only is a common law doctrine, but hasdeep constitutional prohibited by the Ex PostFacto Clause of the United States Constitution from enacting lawsthat would punish conduct that was lawful at the time of itscommission, or that increases the punishment for an act committedbefore the law took effect.

9 In turn,courtsare prohibited fromenlarging the scope of Criminal statutes by the Due Process Fair NoticeA corollary of the legality principle is that a person may not be punishedfor an offense unless the statute is sufficiently clear that a person ofordinary intelligence can understand its meaning. This is a fundamentalcommon law concept, with constitutional roots as well in the DueProcess Nondiscriminatory EnforcementAnother corollary of the legality principle is that a Criminal statuteshould not be so broadly worded that it is susceptible to discriminatoryenforcement by law enforcement officers, thereby unduly expandinggovernment Burden of Proof1. Burden of ProductionThis burden relates to the question of which party the defendant or thegovernment has the obligation to first introduce evidence on a givenissue.

10 The party with this obligation, who fails to satisfy this burden,loses on the issue. In general, the government has the burden ofproduction regardingelements of a crime; the defendant carries theburden as toaffirmative Burden of PersuasionOnce the burden of production has been satisfied, the next questionbecomes: who has the burden of persuading the factfinder on theparticular issue? The party with the burden ofproductionneed not havethe burden SUMMARYa. Degree of Burdeni. Elements of a CrimeThe Due Process Clause of the Constitution requires that thegovernment carry the burden of persuasion, beyond a reason-able doubt, as to everyfactnecessary to constitute the crimecharged. The Court has limited the word fact and, thus,the prosecutor s constitutional obligation to carry the burden ofproduction beyond a reasonable doubt to elements of anoffense, and not to defenses and mitigating Defenses to CrimesA legislature is free to place the burden of persuasion regardinga Criminal law defense on either party the defendant orgovernment and to set the burden very high (proof beyond areasonable doubt), somewhat high (clear and convincing evidence)or low (proof by preponderance of the evidence).