Criminal Law - Fall 1997 & Winter 1998 - Prof. Schulhofer - Dave Horan Page 3
Criminal Law
Fall 1997 & Winter 1998 - Prof. Schulhofer
Dave Horan
I. The Criminal Justice System - pp. 1-14
A. Course will focus on definitions of crimes & principles determining criminal responsibility.
B. 4 facts re: system (that answer what effect do legal rules have in practice?):
1) enormous caseload--mismatch b/w resources and # of cases
2) enormous discretion at every level (cops, prosecutors, judges)
3) enormous decentralization/balkanization (independent fiefdoms)
4) enormous variation in quality and professionalism of crim. justice personnel
a) affects how rules operate in practice
b) generates many of the rules we have
C. Sources of relevant law
1) trad’l common-law--followed in 1/2 of states (MI, CA)
2) modern codifications based on MPC (Ill., N.Y.)
3) Some MPC jurisdictions turn to common law for guidance and some common law cts. like Fed’l. Cts. look to MPC or even overrule common law based on prudence or experience
D. 3 questions to ask:
1) What is MPC approach?
2) What is common law approach?
3) What policy underlies each so we’ll know arguments on each side?
II. The Process of Proof
A. Overview--pp. 14-22
1) Guilt of D turns more frequently on resolution of disputes about facts than on resolution of subtle legal questions about meaning/scope of penal prohibitions.
2) Up to 90% of convictions obtained by pleas, which = results of hurried horsetrading rather than thoughtful application of complex legal principles to known facts.
3) Nor rules of evidence in plea negotiations.
4) In homicide particularly, distinctions drawn by criminal code often prove too fine for workable, everyday application.
5) Acquittal:
a) Verdict of not guilty ends proceedings & isn't subject to any appeal or review (double jeopardy), even if flagrant errors prejudicial to p occurred at trial.
b) Many states get around this difficulty by providing for rulings prior to start of trial on significant issues of law & permit p to appeal adverse ruling at that point (b/f trial).
B. Evidence--pp. 23-38
Case - People v. Zachowitz (pp. 25-28) - N.Y. Ct.App. - D went into apartment to get gun after D’s wife insulted. D went back to insulter and shot him. Cardozo overturned 1st° M conviction because trial Ct. let in evidence of several guns D had in ap’t. to show D had dangerous disposition. p can’t do so b/c evidence tending to unfairly prejudice jury against D w/ no strong probative relation to the charge against D = inadmissible.
1) Principles of Evidence:
a) irrelevant evidence is never admissible
b) relevant evidence is usually admissible, and very little probative value is needed to establish relevancy
c) Fed.R. Evid. 403: probative value = substantially outweighed by danger of unfair prejudice
2) Fed.R. Evid. 404(b): Prior bad acts
3) Justifications of Fed.R. Evid. 404(b):
a) saves Ct. from having to weigh probative value v. prejudicial effect each time
b) fairness arg.: don't reopen past facts
c) jury will give too much weight to past bad acts
d) principles of just punishment will be distorted (focus on acts not character)
e) inconsistent w/ blame and free choice--acts are not determined by character
4) Problem w/ Prior Bad Acts Rule: could get in prior conviction if robber was tried for death of informant two days after robber was released. This is w/in letter of rule but violates underlying policy of the rule. Fairness concern not violated, though, b/c not offering past conviction to show conformity therewith (robbery vs. murder).
C. Burden of Proof--pp. 38-54
1) In Re Winship (p. 38): S.Ct. invalidated a law that tried to establish a preponderance of the evidence in juvenile proceedings. Reaffirmed beyond a reasonable doubt.
2) Winship Rule = “Due Proc. Cl. protects the accused against conviction except upon proof beyond reasonable doubt of every fact neces. to constitute crime charged.”
3) Justifications for BARD Rule:
a) Utilitarian ethics vw.: net gain of social utility--social disutility of convicting innocents > social disutility of letting guilty go free (Harlan concur. in Winship)
b) Individual Rts. Vw.: Does individual really deserve punishment to a great degree of confidence? (maj. vw. in Winship)
4) When BofP matters:
a) At close of p’s case, if Ct. decides evidence raised a reas. doubt about guilt as a matter of law, must direct verdict for D.
b) same issue may be presented at close of all evidence for Ct. to decide.
c) will be central concern of jurors during deliberations.
d) on appeal, D may seek reversal for insufficient evidence.
Case - Patterson v New York (pp. 41-48) - U.S. S.Ct. - Supreme Court held that a N.Y. statute that required the D to prove the affirmative defense of extreme emotional disturbance (EED)-- malice aforethought is not element. of murder in N.Y. & so p did not have to prove no EED to get malice; p still had to prove all the elements of the crime committed but can shift burden to D to prove any fact not included in definition of crime charged. NOTE: Malice = absence of heat of passion; \malice & EED are mutually exclusive.
5) Dissent:
a) fears careful legislature could now shift burden of persuasion by simply not mentioning nonexistence of that factor
b) functionally, N.Y. defin. of murder is it’s intent unless D has EED so EED is an implicit part of defin. of murder.
6) Affirmative Defense = when the D bears the burden of persuasion.
7) Supplemented Mullaney, which, just the year before Patterson handed down, held that D never has to prove anything, including that a homicide occurred in the heat of passion (in order to get a manslaughter conviction)
8) Patterson follows Winship and Mullaney holdings verbally but not in substance b/c p can convict even when D’s innocence is still in doubt b/c everything turns on how crime is defined though “there are obviously const. limits beyond which States may not go in this regard.” (p. 45, ¶1)
9) If S.Ct. had found N.Y. statute unconst., N.Y. could have:
a) eliminated aff. def. of EED altogether--terrible for innocent Ds
b) required p prove no EED BARD
10) Policy Reasons behind Patterson:
a) encourage states to provide broader ameliorative defenses
b) discourage states from abolishing trad’l aff. defenses
c) presuppose 8th Am. limits re: Prairie State agg. ass. = life for touching w/o consent (obviously unconst. as S.Ct. says)
11) Patterson Rule: OK to shift burden to D if:
a) fact not part of formal defin. of offense, AND
b) defense for which burden is shifted must be gratuitous or optional and not a prerequisite for const. permissible/just punishment.
D. Presumptions--pp. 54-59
1) Definition = “True presumptions concern an inference of fact to be drawn from some other fact in evidence.” And must be rational connection b/w fact proved and other, critical fact to be inferred from it.
2) Misnamed Presumptions = i.e. Presumption of Innocence (no rat’l connection b/w being charged as a D and being innocent)
3) True presumptions usually involve a fact on which p bears BofP, making burden easier for p to carry--that is, usually elements of a crime (i.e., intent to kill can be inferred from use of a deadly weapon)
4) Four Types of Presumptions:
a) Permissive Presumptions/Inferences:
1) allow jury to draw inference from basic to presumed fact.
2) S.Ct. said will pass const. muster if more likely than not to hold true on the facts of the particular case.
b) Mandatory Presumptions:
1) presumption requires jury to draw the inference.
2) S.Ct. said will pass const. muster only if connection b/w presumed fact/element and basic fact held true BARD over the generality of cases.
c) Conclusive Presumption:
1) mandatory one that stays in place no matter how much evidence is offered to disprove it.
2) \really a substantive rule that makes basic fact conclusive and presumed fact legally irrelevant.
3) unconstitutional if presumed fact is const. required for conviction or required by State’s definition of an offense (element of the crime, i.e. intent).
d) Mandatory-but-Rebuttable Presumption = upon proof of basic fact, jury must find the presumed fact unless a given am’t of evidence is forthcoming.
5) Presumptions are a crucially imp’t way to get into state of mind facts required by substantive crim. law b/c intent is hard to prove
6) Two-Step Test:
a) what kind of presumption (permissive or mandatory)?
b) does it fit its kind’s test as set out by County Court v. Allen (S.Ct.)?
7) Problems w/ Presumptions:
a) leap b/w basic fact and presumed fact may violate BARD standard
b) takes power away from jury to decide elements BARD
E. The Jury--pp. 59-74
Case - Duncan v. LA (pp. 59-61) - S.Ct. of LA - Black D convicted by Ct. of battery & sentenced to 60 days. D has a rt. to trial by jury under Due Proc. Cl. of 14th Am. (6th Am. only applies to fed’l cases).
Case - U.S. v. Dougherty (pp. 66-68) - U.S. Ct.App., D.C. Cir. - Protesters blew up Dow Chemical plant and tried to get jury to acquit for political reasons. Jury has power of nullification but Ct. should not instruct on this power alongside law of case.
1) Jury Nullification = Only a const. rt. to a jury deciding facts and conviction, not sentencing.
2) Questionable why rt. to jury is imp’t:
a) b/c Ct. followed law but don’t want him to (shield for the guilty)?, OR
b) b/c Ct. just got it wrong and jury would get it right (shield for the innocent)?
c) anti-intellectualism--shield against too much expertise and jadedness (“D prefers common-sense judgment”)
3) Justifications for Jury Nullification:
a) do away w/ unpopular laws that are out of step with society
b) old laws that legislative inertia keeps on the books
c) laws that are gen’lly good but unfairly applied in particular case (unforeseen circumstances, de minimis harms)
4) Majority Rule = D can’t tell jury of sentencing in closings nor ask Ct. to instruct on sentences (p 70, n.3) nor that jury has nullification power
5) Why keep jury nullification from jurors?
a) not b/c they already know of it, as Ct.App. seems to assume in Dougherty-- it’d be useless to keep silent on what jury already knows
b) practical considerations: might be overused or work better if knew of it?
c) ambivalence about sticking to the logic of carefully applied formal rules, but don't want too much flexibility
6) People v. Fernandez (p. 70, n.3) - Cal. Ct.App. held OK that Ct. lied to jurors about their power of nullification.
7) Effects of Jury Trial on U.S. Crim. Justice System (p. 62):
a) Ct. = judge of law, jury = finder of facts--\law must decide if a question is one of law or fact
b) Ct.’s vw. of case may differ from jury’s, presenting contest decided by common law rules such as directed verdicts, motions to set aside verdicts, and JNOV.
c) 12 lay people being involved in a trial increases % of errors re: conduct and mode of decision-making
d) Judges must formulate understandable statement of possibly hard law--leads to many reversible errors
III. The Justification of Punishment - pp. 97-116, 124-126, 126-131
A. Question of if D is guilty of a crime at all turns on the purpose of punishment gen’lly as does question of how to sentence D
B. Theories of Punishment:
1) Retributivism = punishment justified by moral culpability of Ds b/c and only b/c offender deserves it (is not an eye for an eye or retaliation)--i.e. Kant = “if justice and righteousness perish, human life would no longer have any value in the world” & = “justice would cease to be justice if it were bartered away for any consideration whatever” (no plea bargaining); backward-looking
2) Utilitarianism = punishment justified b/c societal gains > costs (pain & suffering) to offender; Bentham = all punishment is mischief, in itself evil; forward-looking
a) deterrence, gen’l or specific
b) incapacitation
c) rehabilitation
3) Mixed Theory:
a) justified if and only if punishment achieves a net social gain AND is given to offenders who deserve it.
b) Reasons of punishment \ = utilitarian but practice is subject to constraint that it never be more than individual offender deserves.
4) Denunciation (may be utilitarian [Durkheim, pp. 105-106] or non-utilitarian [Stephen and Denning, pp. 104-105])
5) Rehabilitation is out of vogue but neglecting this theory minimizes concerns of crime-aggravating effects of prison on people who’ll be back out on streets (harms society).
C. Two moral traditions:
1) descriptive morality = justice consists of the values, intuitions, etc. society holds
2) critical morality = are practices and principles of a given society in line w/ a gen’l morality or set of principles?
D. Descriptive Theory of Punishment of U.S.:
1) not retributivism, b/c we allow hitman to turn state’s evidence for lesser sentence that he deserves to go after bigger guys
2) not utilitarian only b/c we don’t give user of $.25 slug 20 years (disproportionate to fault, may punish innocents, uses people as means to an end [Kantian obj.])