Criminal Law - Outline - Part 1

Theories of Punishment are relevant because it deals with sentencing and how long they could be in prison.

Law enforcement is not automatic, it is at their discretion.

Prosecutor also has discretion over the theories of punishment and broad discretion over whether to bring charges (too many cases to prosecute them all)

Prosecutor will bring conduct that is most flagrant, society is harmed the greatest, and the most provable

• Issue indictments
• A check on prosecutorial discretion (really the only check)
• Required in federal court
• They decide if the prosecution has a case to bring to trial
• They just need probable cause (51%)

Article 2 of the Constitution gives the executive branch power to decide who to prosecute.

• The prosecution’s job is to seek “justice”
  • Convict the guilty
  • Not convict the innocent
• Defense does not have that responsibility
  • Allegiance is to the defendant
  • Zealously represent their client

1. Always on the prosecution
2. Beyond a reasonable doubt
   1. On all elements individually
   2. Keeps up the moral legitimacy of the system
3. Appellate court does not review the jury’s verdict
   1. Jackson v. Virginia Test: would a rationale juror of fact have been able to conclude beyond a reasonable doubt
4. US v. Jackson: The ATF came to Jackson’s door and asked if he had any firearms in the house and he showed them that he had some ammunition. An Aaron Jackson from New York was a convicted felon from 18 years prior and as a felon it is illegal to have firearms or ammunition. They arrested Jackson and at trial only produced the previous conviction sheet as evidence against him. No direct evidence presented. Jury convicted Jackson, but he appealed claiming the government did not prove beyond a reasonable doubt that the convicted felon Aaron Jackson was actually him.
   1. Government wanted to introduce a new rule: Conditional efficiency theory – the certificate is enough if the defendant doesn’t contest it
      1. But the burden cannot go to the defense
      2. Not a real rule
   2. The government did not meet its burden
      1. No sufficiently compelling evidence (ex. Description, age, fingerprint, etc.)
      2. Failed to show a connection
      3. Circumstantial evidence is enough if overwhelming
         1. Description, age, fingerprint
         2. You never NEED direct evidence
5. Two burdens of proof:
   1. Burden of Production – on the prosecution’s shoulders
      1. The defendant will move for a directed verdict if there isn’t enough evidence; the prosecution must get past directed verdict to get to a jury
      2. Affirmative defenses are shifting
   2. Burden of Persuasion – on the prosecution
      1. To prove guilt beyond a reasonable doubt
         1. Vague definition; not able to quantify it
6. Levels of proof
   1. Reasonable suspicion (lowest – for the police)
   2. Probable cause
   3. Preponderance of the evidence (over 50% sure)
   4. Clear and convincing
   5. Beyond a reasonable doubt (used for crime; don’t need 100% certainty)
7. Beyond a Reasonable Doubt
   1. The authority comes from In re Winship (1970)
      1. “No one shall. . . be deprived of life, liberty, or property without due process of law.” (Amendment 5, U.S. Constitution)
         1. In a criminal case: life or liberty are at stake.
   2. Why BRD standard?
      1. Prosecutors won’t bring cases that they do not have the proof for (check on governmental power)
      2. It keeps the people’s confidence in the court system
      3. Gives the presumption of innocence
      4. Blackstone’s Formulation
         1. Better for 10 guilty to go free than 1 innocent person suffer.

1. Kansas v. Hendricks: Hendricks was a repeat sexual predator. Admitted he had done it several times and if released he would do it again. Kansas had implemented the Sexually Violent Predator Act that said if there was some abnormality causing this person to have sexual predator tendencies, then it would be better for them to be committed away from society for the greater good. This was the first case this statute was used in.
   1. The question: Is the Sexually Violent Predator Act lawful under Double Jeopardy?
      1. Double Jeopardy (5^th Amendment)
         1. One shot at each crime
         2. Can’t try the same thing more than one time until conviction
         3. Hung jury: you can try again because there was not a verdict
      2. It is lawful and constitutional; still in use today.
   2. Not state shall pass an ex post facto law: at the time, you didn’t know it was illegal
      1. We have laws to influence the way people behave
      2. If they don’t know, they can’t be held for it
   3. The government argument: Civil commitment, not criminal.
      1. Looking at the legislative intent of the statute: civil commitment procedure
         1. Focus on mental state/abnormality (not if he did it or not)
         2. Receiving treatment and rehabilitation
         3. There’s no scienter: level of knowledge needed to be responsible (criminal, not civil)
      2. It’s in the probate code
         1. Wills, trusts, and estates, etc.
         2. Civil code
   4. When deciding if a statute is civil or criminal we look to the placement of the statute and the legislative intent.
      1. What is the practical effect (punitive in purpose or effect = it negates the civil)
      2. Defendant must come with clear proof that it is civil
      3. Cannot just move clearly criminal things to the probate code