Criminal Law –
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?
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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?
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The
legislature says it’s a crime. The
legislature, in theory, represents the views of a majority of the voters.
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What
about enforcement? By police, and then
imposition of punishment by juries.
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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.
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.
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.