Criminal Law – 8/19/03


When you study Criminal Law, the materials build on each other.  If you don’t understand something, the best time to ask if you’re confused is right now.  It’s like building a house: you need a strong foundation.  Even before you build the foundation, you need some tools.  We start developing the tools in today’s assignment.  The tools we will build will take up about seven or eight classes and Chapters 1-3 in the casebook.


Here’s a logical starting point for a class in criminal law: What is a crime?


-         A moral condemnation by your community?  Is it true that anything that is morally condemned by your community is a crime?  E.g. adultery?  Is that a crime?  Nope.  But it’s condemned by society.

-         How about this plus conduct that’s condemned plus the threat of punishment?  How about legally enforceable punishment?

-         The crime must be defined, like in a book like a Penal Code.  E.g. the speed laws are clearly defined.  But do we find breaking the speed limit to be morally wrong?  What might or might not make speeding morally wrong?

-         The legislature says it’s a crime.  The legislature, in theory, represents the views of a majority of the voters.

-         What about enforcement?  By police, and then imposition of punishment by juries.

-         Example: what about driving 65 through a school zone vs. driving 65 in a 55 zone?  We sense that there’s a point at which we feel driving can be reckless and immoral…that someone has not just broken the law, but has actually done something bad.


According to Hart, what makes a crime different from a civil matter?  It’s the condemnation of the community.  Hart says the condemnation is more important than the punishment.  Sometimes you can have a heavier punishment for a tort than for a crime (e.g. $50,000 fine vs. one day in jail).  So it’s not the punishment that really distinguishes criminal from civil.  It’s the community’s condemnation of you that makes the difference—you’re been found guilty of a crime.


The line between the criminal and the civil is blurring.  For example, sexual predator laws say that if you’re an ongoing risk to the community, you can be kept off the streets simply for being found to be a sexual predator.  But it’s not punishment because you didn’t do a crime.  Since it’s considered a civil statute, the Supreme Court has held that these “sexual predators” do not have the same protections as criminal defendants.


More on Hart


We will think a lot about the competing roles of the legislature and the judiciary.  Today, courts don’t make the laws; legislatures do.


Note 4: What will make a criminal law effective?


Example: Ohio passes a curfew law.  Anyone under the age of 18 living in the state of Ohio must be in his or her own home by 10 PM Monday through Friday, and by 11 PM Saturday and Sunday.


Will this law be effective (except by coincidence)?  Hart gives four conditions.


The primary addressee is kids under 18.  They must know of the law’s existence.  They need to know of “its content in relevant respects”.  In other words, (a) you know there’s a curfew law, and (b) you know you gotta be home by 10 PM or 11 PM on weekends.


The kid needs to “know about the circumstances of fact which make the abstract terms of the direction applicable in the particular instance”.  In other words, it’s not enough to know and understand the law, you have to know how it’s going to apply to you (I’m under 18, I know what day of the week it is, I know what time it is, I know how long it will take to get home from where I am).


You must be able to comply with the law.  For example, you can’t comply with this curfew if you’re homeless.  You might also be physically prevented from complying with the law.


Finally, you have to be willing to obey the law.  This doesn’t mean you have to like the law.


Again, these are the things necessary to build a successful law.


Think about these points all semester long to see if the law is compatible with these principles.


But is it fair to convict someone even if one of these conditions is missing?


What about if you’re ignorant of the law?


Ignorance of the law is no excuse.  That’s the rule.  But should it be?


Say you spit on the sidewalk in Ohio, not knowing it’s illegal.  Is it fair for you to be prosecuted?


Example – This dude drove his motorcycle from California to Mexico and further and further south into South America.  He wore a helmet.  That was the law in California.  When he got into Columbia, almost as soon as he crossed the border, he was arrested and ticketed for wearing a helmet.  It was against the law to wear a helmet there.  He had no way of knowing that, and it seemed counterintuitive to him.  Was it fair to punish him?


Do we need to make a slippery slope argument?  Or would it only be the little trivial crimes where ignorance of the law would be a plausible excuse/defense?


What about this quote about from Oliver Wendell Holmes saying “…the law must keep its promises”?  We’ll get back to it.


How about burden of proof?  Why do we have such a strong burden of proof in our society?  Why not “preponderance of the evidence” as in torts?


Dershowitz’s Rules of the Justice Game


The first two rules:


1.     Almost all criminal defendants are, in fact, guilty.

2.     All criminal defense lawyers, prosecutors and judges understand and believe rule #1.


If Dershowitz is right, then why in the world would we have such a high burden on the government to prove their case?


The theory is that the cost to society of jailing an innocent person is much higher than releasing a number of guilty people.


John Adams, for example, said that it’s more beneficial for many guilty persons to escape unpunished than for one innocent person to suffer.


Why this theory?  How about self-interest?  I don’t want to be a locked-up innocent person.  But I also don’t want to get killed by a released guilty person.


How about our cultural values?  But why do we do this?


How about protection against the government?  E.g. an overzealous police force, judges, prosecutors.  It has less to do with this particular criminal trial, and more to do with limiting government power in general.


Dressler adds: in China, where guilt is presumed (like France and other countries), the argument that was made in favor of our presumption of innocent was this: “If the law presumes people guilty, we’re much more likely to have the agents of the government abusing those individuals.  Once we think of people as guilty, we’re much more likely to torture, beat them, and mistreat them to get confessions.  But if we think of someone as innocent, then we will back off.”


The framers of the Constitution were big on not locking up innocent people.  But some would argue that the presumption of innocence was a good idea then, but not now, because we have more crime than we did back then.


But if we do truly value the good name of the innocent person, that this value is great enough to protect it, then a high burden of proof makes sense.


Even the current Supreme Court, being as conservative as it is, still supports the presumption of innocence.  This is likely to remain part of our legal system for a long time to come.


“Burden” of Proof


There are two kinds of burdens of proof, civil or criminal:


1.     Burden of going forward, or the burden of producing evidence

a.      Who has the responsibility of putting on evidence in a particular case?

                                                              i.      For example, did the defendant kill the victim?

                                                            ii.      Did the defendant, who killed the victim, do so in self-defense?

b.     The simple rule for now is: the government has the burden of producing evidence regarding any element of a crime.  Anything that constitutes an element of a crime is something the government must put on evidence for.

c.     On the other hand, for putting on a certain defense, it’s the burden of the defendant to show evidence of, e.g., self-defense

2.     Burden of persuasion

a.      Now that the issue is before the factfinder (jury or judge), who must convince the factfinder in regard to the issue?


The Winship Doctrine


The Constitution requires the prosecutor to persuade the factfinder beyond a reasonable doubt of every fact necessary to constitute the crime charged.


The Supreme Court has fought bitterly over what the word fact means here, because it’s crucial to what we’re talking about.


Currently, the court treats the word fact to be synonymous to the word element.


The Model Penal Code


Section 1.13 – Here we have general definitions.  So what does element mean in this Code?


What is surprising here?  The government doesn’t just have to prove the facts, they actually have to negate possible defenses (excuses, justifications).


So the absence of e.g. self-defense must be proved beyond a reasonable doubt.


So…even though you might have the burden of going forward as the defendant in presenting evidence that you acted in self-defense, the government has the burden to prove beyond a reasonable doubt that the defendant didn’t act in self-defense.  But in some jurisdictions, the defendant has the burden of proof.


The Thought Experiment


Why did we put the right to a jury trial in the Constitution?  To prevent judges from oppressing the people.  The framers of the Constitution wanted the community to judge the defendant.  That’s an essential part of criminal law.


We looked at different sets of jury instructions and were asked to look at them from the point of view of the jury and from the point of view of the defense attorney.


The “Moral Certainty” instruction was the one most frequently given in the old days.  About 15 years ago, the Supreme Court held that this instruction wasn’t good enough.  What they didn’t like was the phrase “moral certainty” because they feared the jurors would focus on the word “moral” rather than focusing on the facts of the case.


An empirical mock trial study of all of these instructions was done.  Everyone heard the same case, but small groups of jurors were read different sets of instructions.


The acquittal rate was highest for the “firmly convinced” instructions.


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