Chapter 1

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Transcript Chapter 1

Joel Samaha
To define and understand
what behavior deserves
criminal punishment.
To understand and
appreciate the relationship
between the general and
special parts of criminal law.
To identify, describe, and
understand the main sources
of criminal law.
To define criminal
punishment, to know the
difference between criminal
and non-criminal sanctions,
and to understand the
purposes of each.
To define and appreciate
the significance of the
presumption of innocence
and burden of proof as they
relate to criminal liability.
To understand the role of
informal discretion and
appreciate its relationship
to formal criminal law.
To understand the text-case
method and how to apply it
to the study of criminal law.
 Not
all behavior that is wrong is criminal
 Criminal liability should be imposed
only if the wrong was a crime
 Criminal liability is reserved for
behavior that unjustifiably and
inexcusably inflicts or threatens harm (to
another, to society in general)
Torts are private actions
against a private citizen,
a corporation, or
another private citizen
(not the government,
the way crimes are
Person bringing the
action is called plaintiff
Person being sued is the
Jury/Judge will determine
if the defendant is
responsible (“guilty” or
“not guilty”)
If person is found
responsible, the remedy
will be monetary (general
damages, punitive
Often have the same
names as crimes, and can
be very similar
 “State” (people
of the
state) brings the
action against a
criminal defendant
 If defendant is found
“guilty” then he or
she is “blameworthy”
and worthy of
 If
guilty, then the
defendant can be
punished by death,
incarceration, fines,
community service,
etc… and not just
monetary damages
 Guilt, though, must
be found beyond a
reasonable doubt
 Facts: Chaney, the defendant, was found guilty of forcible rape and
robbery. The trial judge gave the defendant only 1 year concurrent
sentence and possibility of parole with the discretion of the parole
committee. Now the state appeals and argues that this sentence was
too light.
 Issue: Was the trail judge too lenient?
 Holding: Yes. The court stated that the crime the defendant
committed was serious and he should have gotten a longer sentence.
 Facts: Pete, the defendant, was sentenced to 2 one-year
consecutive sentences, for a guilty verdict of 2 counts of unlawful sale
of intoxicating liquor.
 Issue: Was the sentence too excessive?
 Holding: Yes. The court stated the sentence was too excessive as
the two offenses were really part of one general transaction.
Mala in se crimesbehavior that is
inherently wrong or
 Mala prohibita offenses are behaviors
that are criminal only
because there is a
statute or ordinance
that says it is
Felonies: crimes
punishable by death or
confinement for a
specific period of time
or more (usually one
year) and fine
 Misdemeanors:
crimes that are
punishable by a fine
and or confinement in
local jail (generally up
to one year)
Is it a Felony or Misdemeanor?? Read the following scenarios and
determine what level of offense was committed.
A 20 year-old male was sentenced to prison for 15 months. What level
offense did he commit?
A 36 year-old female was released from jail after serving her entire 280 day
sentence. What level offense did she commit?
A 27 year-old female appeared before the court and was informed if
convicted of the offense she has been charged with, she could serve no
more than 365 days in jail if convicted. What level offense did she commit?
A 45 year-old male was released from custody after serving a 48 month
sentence. What level offense did he commit?
A 55 year-old male was ordered to pay a fine of $300.00. If he does not pay,
he will have to serve 90 days in jail. What level offense did he commit?
the general principles that
apply to more than one
• Accomplices
• Accessories
Inchoate Offenses
• Attempt
• Conspiracy
• Solicitation
defines specific crimes and
arranges them into groups
according to subject matter
Categories of crimes
• Crimes against persons
 examples
• Crimes against property
 examples
• Crimes against public order
and morals
 examples
• Crimes against the state
 examples
Common Law
State codes (State legislative assemblies)
Federal Codes (U.S. Congress)
Local ordinances (Municipal legislative
Common law originally came from
English judges, and was passed to a
degree to the colonies and to the states
State common law
Federal common law
 U.S. v. Hudson and Goodwin- no fed.
common law, BUT
 Judicial common criminal law making?
Municipal Ordinances
• Local governments have broad
• Can duplicate, overlap with state
codes, and when in conflict, the state
codes are supposed to trump
municipal ordinances
Administrative Crimes
• Agency made law (rapidly
growing source of crim law)
Case Law
• Judge made law—interpretations
of codes, common law, ordinances,
administrative law
• Judicial criminal law making
 Issues of retroactive law
making (NOT a violation of ex
post facto)
 Judicial activism challenges
• Stare decisis and precedent
 Trend
from common law crimes at
beginning of our nation to predominantly
 Model Penal Code (MPC)
Final version 1962
Followed by most, but not all states
No state has adopted MPC in its entirety
Common denominator of American Criminal
Criminal Offense or Municipal Ordinance? Read the following
scenarios and determine whether the act would be a Criminal Offense or
violation of a Municipal Ordinance
A teenage boy was found in the park at 11:15 pm. City curfew is 11:00 pm.
An elderly woman intentionally exits a retail store pushing a cart containing
shoes, groceries, cleaning supplies and a tv without paying for the items.
An adult female is walking down the street with an open container of
While backing out of a parking spot, an adult male hits and severely injures
the child exiting the vehicle next to him. It was determined the adult male
was under the influence of an illegal substance
 50
autonomous and independent states
• Each has own code.
 Washington, D.C. (own
 Federal
Criminal Law (U.S. Codes)
 Thus, 52
 States
criminal code)
criminal codes within the U.S.
have broad law making authority
 Federal
government has limited law making
authority (only crimes related to national
Punishment defined:
inflicting pain or other
unpleasant consequence
on another person
Criminal Punishment
• Inflict pain or other
unpleasant consequence
• Prescribe a punishment in
the same law defining the
• Must be administered
• State must administer them
• “quantity” of punishment
doesn’t tell us much about
the three aspects of
punishment (definition,
purposes, limits
• Rates of incarceration:
(number of prisoners
per 100,000 people)
• U.S. is the leader of
incarceration (highest
• Unequal representation
of gender, age, race in
prison population
punishment justifies itself, pain of
punishment pays for offenders’
Eye for an Eye
Looks to past crimes and punishes
individuals because it is right to hurt
Punishment benefits
• Pay back society by accepting
responsibility through
Assumes free will
• Individual autonomy
Accords with human nature to hate
Rests upon two philosophical
foundations: culpability and justice
pain of punishment brings
greater good of reducing
future crime
Punishment looks forward
and inflicts pain to prevent
future crimes
Four types of prevention
• General Deterrence
• Special Deterrence
• Incapacitation
• Rehabilitation
Difficult to translate abstract justice into concrete
Retaliation is NOT part of human nature in
civilized society (barbaric)
Free will justification is undermined—forces
beyond human control determine individual
Vast majority of crimes don’t require culpability
to qualify for criminal punishment
• Crimes without moral turpitude
• Crimes against public order and morals
• Unintentional homicides
 Punish
the offender to make an example
of them and thereby deter others from
committing future crimes
 Jeremy Bentham –deterrence theory
• Rationalism- Individuals maximize pleasure
and minimize pain. Humans won’t commit crimes
 Pain of punishment outweighs
 Pleasure gained from committing crime
• Hedonism—if prospective criminals fear future
punishment more than they derive pleasure, they
won’t commit crime
 Rational
human beings won’t commit
crimes if they know the pain of
punishment outweighs the pleasure
gained from committing crimes
 Least amount of pain needed to deter the
crime should be permitted
punishment impairs
 Prescribed penalties
rest on faith
 Rational free-will that is
underlying deterrence
theory does not
exist…complex forces
within human organism
and external
environment influence
Behavior is too
unpredictable to
reduce to mechanistic
 Threats of punishment
don’t affect all crimes
or criminals equally
 Deterrence is unjust
because it punishes for
sake of example
• Punishments should not
be a sacrifice to the
common good
 Punishing
convicted offenders to deter
THEM from committing any more crimes
in the future
Preventing future crime by
making it physically
impossible for the offender
to harm society at large
• Incarceration: locking
people up so they cannot
harm society
• Altering surgically (or
chemically) an offender to
make them incapable of
committing their crime
• Executing a person
Criticisms of
Incarceration shifts
criminality from outside
prison to inside prison
Violent offenders continue
offending in prison,
property offenders
continue also (ex: trading
Incarceration is generally
 Rehabilitation
is preventing crime by
changing the personality of the offender so
that he will conform to the dictate of law
(Herbert Packer)
 Medical Model of Criminal Law - crime is
disease, offenders are sick
 Purpose of punishment is to treat criminals
 Incarceration
as rehabilitation- length
depends on how long it takes to cure the
 Determinism
• Forces beyond offenders’
control cause them to
commit crimes
• No choice made by
• Can’t blame offender
Therapy by experts can
change offenders
Rehabilitation is based on
faulty, unproven assumptions
• Causes of crime complex
• Human behavior not well
• Sound policy can’t depend
on treatment
Makes no sense to brand
everyone who violates the law
as sick and needing treatment
Inhumane, cure justifies large
“doses” of pain
 All
four punishment justifications have
been supported at different times
 Weight given to each has shifted over
 Rehabilitation philosophy justified
indeterminate sentencing laws of the
 Retribution and incapacitation
philosophy justified fixed, mandatory
sentences since 1980s
Presumption of innocence
means that the state has burden
of proving that the defendant
committed the crime
Burden of proof
• Burden of production:
requirement that party present
some evidence to support their
• Burden of persuasion:
requirement that the party
persuade the jury (or judge) to
a certain “standard of proof”
Standard of Proof—level of
certainty to which the jury (or
judge) needs to be persuaded
• Beyond a reasonable doubt –
criminal liability (highest
standard in law)
• Preponderance of the
evidence – civil cases and some
criminal defenses
Bench Trials-the accused give
up their right to a jury trial and
are tried by judges who decide
whether prosecutors have
proved their guilt
Corpus Delicti- Latin for “body
of the crime,” it refers to the
body of the victim in homicides
and to the elements of the crime
in other offenses
Review the website below regarding the verdict in the Casey Anthony
murder trial
Considering what you have learned about the burden on proof, discuss
why you think the jury found Casey Anthony not guilty of murder?
Why do you think the jury found her guilty of giving false information to
the police?
Affirmative Defenses—switch the burden of
production from the state (which always
maintains the ultimate burden of proof) to the
Defendant must present some evidence to
support affirmative defense
Some states require defendant to also carry
burden of persuasion to preponderance, other
states keep the burden of persuasion on the
states (regarding the defense)
 Every
stage of the criminal justice system
is a decision making point
 Criminal Justice professionals make
decisions based upon training,
experience, and unwritten rules
 Discretion is exercised, hopefully, in
accord within the law
 Discretion should be exercised in a way
that justice and fairness are not
 Importance
of case law—real life
 Application of principles and definitions
of various crimes throughout the text
 Excerpts are edited versions of appellate
court decisions—not trial transcripts
 Excerpts are not from cases where
defendant was acquitted (state cannot
appeal a verdict of not guilty in a
criminal case)
Trial Court-where criminal
cases start
Not guilty verdict—jury
determined that the state did
not prove its case beyond a
reasonable doubt
Guilty verdict—jury
determined that the state
proved its case beyond a
reasonable doubt
Innocent verdict—there is no
such term used in criminal
law. Jury is only to decide
legal guilt or no legal guilt. It
is not making a
pronouncement of factual
Acquittal – result of the
jury rendering a “not
guilty verdict”
Conviction—result of
the jury rendering a
“guilty” verdict, coupled
with the imposition of
Review the website below to learn more about the
Supreme Court
How many justices serve on the Court?
Who is the current Chief Justice of the Court?
The Supreme Court interprets law to determine if any
constitutional rights were violated. How do you think the
internet, facebook and other social media have impacted
the type of cases the supreme court may rule on?
Procedural History
The Opinion contains two
essential ingredients:
Court’s Holding-legal
rule the court has
applied to the facts of the
Court’s Reasoningreasons the court gives
to support its holding
Majority opinion
Dissenting opinion
Concurring opinion
Plurality opinion
 Distinguish
between case or legal brief and
the appellate brief
 Case/Legal brief—tool to help students
focus on the main facts and issues dealt with
in the opinion of the court
 Appellate brief– the supporting
documentation for a criminal appeal,
outlining and arguing to the judges why the
court should rule in defendant’s favor.
Points out all the legal “errors” that
occurred in the trial
 What
are the facts
• Defendant’s actions
• Government actions? (very important in criminal
procedure cases, less so perhaps in criminal
• What is the controlling law, statute (very
important in criminal law—what are the
elements of the crime the state had to prove?)
 What
 What
is the legal issue
are the arguments in the court’s
 What is the judgment of the court (affirm,
reverse, etc)
 State
v. Metzger = case name
 319 N.W. 2d 459 (Neb 1982)= full case
 319 = volume of the reporter
 N.W.2d = the reporter in which the case
opinion was published….there are
official and proprietary reporters
 459 = page number the case begins on
 (Neb 1982) = State where the case took
place, and the year of the decision