INTRODUCTION TO CRIMINAL LAW

INTRODUCTION TO CRIMINAL LAW

GOALS OF THE COURSE. Our course in Criminal Law, like our other first year courses, is designed to teach you certain skills while also teaching you a substantive body of law. My goals in this course include the following:

1. Giving you opportunities to develop your skill at reading and analyzing cases.

2. Giving you opportunities to develop your skill at reading and analyzing statutes.

3. Giving you opportunities to develop your skill at applying statutes and case law to various fact patterns.

4. Giving you opportunities to develop your ability to “think on your feet” (actually, “on your seat”; I do not require students to stand during class discussions).

5. Helping you learn the fundamental principles of criminal law and some aspects of procedure.

6. Identifying and discussing controversial issues in criminal law.

GENERAL PRINCIPLES OF CRIMINAL LAW.

1. Adversarial process. Criminal Law is an adversarial process: the prosecutor and defense each attempts to present a case (facts, law) in the light most favorable to its side. Eventually, of course, the judge resolves the legal issues and the jury decides the facts; but the judge and jury play only the third and fourth steps in the process.

A. The prosecutor comes first, because he or she decides what crimes to charge. Thus, your first task in analyzing a fact pattern is to decide what crimes can be charged. Therefore, you must teach yourself to think like a prosecutor. That means: viewing the facts in the light most favorable to the state, and ignoring factual allegations (and interpretations of the facts) that may be helpful to the defense, decide: what crimes could the defendant be charged with? Where a statute provides several different degrees of a crime that could be charged, always attempt to justify bringing the most serious charge. (In real life, of course, prosecutors sometimes deliberately undercharge for a variety of reasons;

but your task in the course in Criminal Law is to learn the law, which among other things means analyzing the most serious charge that could be brought under the facts.)

B. Defense. The second step is to analyze the same facts while thinking like a defense attorney. This breaks down into two substeps.

(1) Analyze whether the evidence supports an argument that the prosecutor cannot prove, or has failed to prove, one or more elements of the crime beyond a reasonable doubt. For example, in a murder case, suppose the state proves that D and V went for walk along a cliff, and a few minutes later V was found dead at the foot of the cliff. If that’s all the prosecutor has, the defense should move to dismiss the charges, because the state has failed to prove that D committed an actus reus that caused V’s death.

(2) Assuming the prosecutor has proven the elements, analyze whether the evidence supports some affirmative defense. For example, Even if the prosecutor proves that D pushed V off the cliff, intending to kill him, D is not guilty of anything if he acted in legitimate self-defense.

C. Judge. The third step is to analyze the problem like the judge, deciding what issues must, and what issues may not, be presented to the jury, and how the judge should instruct the jury about those issues.

It’s actually more complex than that, because cities and counties also have limited authority

to enact statutes and ordinances that are criminal in nature.

D. The final step is to predict how a rational jury should decide the factual issues. In real life, this is often the most interesting step, but it plays a comparatively minor role in your study of criminal law.

“THE LAW OF THE COURSE.” The subject matter of our course is “criminal law” – i.e. the general principles underlying criminal law; how specific crimes are defined; and defenses that can be asserted. Although this body of law was once mostly judge-created, it is now almost entirely statutory.

Thus our primary focus will be on statutes.

There are 51 different jurisdictions in the United States with the authority to enact criminal law: the federal government, D.C., and each state. In some ways, all 51 are similar: each has enacted laws¹ making it a crime to murder, rape, steal, destroy property, and so on. Each recognizes general principles such as group criminality and accessorial liability. Each recognizes a wide range of defenses (insanity, duress, etc.). But within these general similarities, there are wide variations. To cite one example: how rape (or sexual assault) is defined varies widely, and those differences reflect a wide range of value judgments by the legislature.

Model Penal Code. In the late 1950's and early 1960's, under the sponsorship of the American Law Institute, many of the leading criminal law experts in the country, distressed over the often archaic and illogical way criminal law had developed, drafted the MPC. Our casebook contains the entire MPC, beginning at p. 1191. The MPC has been quite influential in some areas of the law, not so much in others.

As we move through the syllabus, we will sometimes examine only one approach to a particular subject; sometimes we will examine two or more (for example, homicide, sexual assault). I will explicitly tell you which approach or approaches I expect you to learn, and apply on quizzes and the final exam.

ATTENDANCE POLICY. The Academic Rules "allow" each student to be absent only a limited number of times. As our course is structured, that number is four. I will not enforce this number rigidly, but I will take attendance, beginning in the second week of classes. If you will be (or were) absent with a reasonable excuse (illness; you are getting married the next day; etc.), let me know. In a case of excessive absences, I reserve the right to reduce a student’s grade one “bump”; and in a truly extreme case, I reserve the right to exclude a student from taking the final exam. In more than thirty years of teaching I have only had to do so once, and hope not ever to have to do so again.

CLASSROOM PARTICIPATION; PREPAREDNESS. To the extent possible, our classes will be a dialogue; this works only if you have read and studied the assignment and are prepared to discuss it, including the questions on the syllabus. I realize, however, that life has a nasty habit of occasionally interfering with law school. If you have not been able to prepare for class, come anyway, but prior to class, e-mail me stating that you are unprepared, and I won't call on you that class. The e-mail should reach me no later than 11 a.m. on the day of the class. (I am known to grow exceedingly testy when students waste class time trying to bluff their way through class discussions without having read the material.)

If you have read the material over thoroughly but do not fully understand it, I consider you "prepared";

rest assured you are not the only student who is unsure about the material. If I happen to call on you, we'll work through the material together in class until you are comfortable with it, and in the process, others will also understand the principles involved.

Class time will be devoted primarily to discussing the problems on the syllabus. I reserve the right not to cover some of the problems, however, if we have already covered the material adequately.

SIGN ON TO THE TWEN NETWORK FOR THIS COURSE. That is the best way for me to communicate with everyone about class cancellations, changes in reading assignment, reminders about quizzes, etc.

USE OF MATERIALS OTHER THAN THE CASEBOOK. I encourage students to use any published material (hornbooks, treatises, published student guides, nutshells, etc.) that help the student learn criminal law. Likewise, I encourage students to join study groups and collaborate on a course outline.

HOWEVER: you will realize, if you flip through the pages of this syllabus, that it contains hundreds of questions for class discussions. It came to my attention a few years ago at Catholic U. Law School that in another one of my courses, a there existed a student-prepared “outline” which provided answers to each of the questions on the syllabus. The problem is that possession of such an “outline” makes it too easy for its possessor to let the “outline” do the thinking. Moreover, use of such an “outline” to answer questions asked in class interferes with the teaching process and is particularly unfair to those who do not possess it.

I do not know whether such an “outline” exists for this course. In case it does, however, let me be clear: I will consider possession or use of such an outline to be improper: it is an attempt to mislead me as an instructor and to gain an unfair advantage over the rest of the class. You are taking your first steps to join a profession that prides itself as an honorable one; a profession, most of whose practitioners live up to the obligation to behave honorably. If I learn of a violation of this paragraph, I will, albeit with regret, report the matter to the appropriate law school authorities.

To sum up: I approve, and encourage, outlines or other work-product that are the results of your efforts, individually or jointly with your classmates in this course. But possession or use of a course outline obtained from a student who took this course from me in prior years is, to me, cheating.

CONTACTING ME WHEN I’M NOT AT SCHOOL. Feel free to email me at Fishman@law.edu, or call me at school, 202-319-5026, or at home, 301-871-6162. I ask only that you do not call me on my Sabbath, which begins roughly an hour before sundown on Friday and ends an hour after sundown on Saturday.

I will set my office hours early in the semester, at a time that does not conflict with your class schedules. I’ll have an open-door policy during these hours – feel to drop in unannounced. (But students who make appointments in advance will be given priority over drop-ins.)

To see me at other times, it’s best to make an appointment in advance, because I might be too busy to speak to you. It is best to make all appointments through my assistant, Ms Kendrick – Kendrick@law.edu – because she remembers to write them down, and then reminds me of them,

whereas I tend to forget. (Our union contract requires each of us to personify the absent-minded professor in certain ways, and this is one of mine.)

QUIZZES. I hope to distribute a number of mandatory quizzes (three or more), which will count for somewhere between 15% and 30% of your final grade, depending on how many and how extensive they are. In addition I may distribute a few other quizzes which will not be graded, except to make sure each student has handed in an answer. (I will let you know in advance which type each quiz will be.) Regardless of kind, I will distribute model answers after I have graded them.

I will be giving these quizzes for several reasons: first, to help you learn the material; second, to familiarize you with my style of exam questions and how to answer them; third, to let me know if there are subjects where I’ve shed more confusion than enlightenment.

I give quizzes in each of my courses for three reasons: first, to help you learn the material; second, to familiarize you with my style of exam questions and how to answer them; third, to get feedback as to how you, and I, are doing.

The quizzes will be open-book take home quizzes. Most of the time I will distribute a quiz at the end of class on a Thursday; your answer (via hard copy or e-mail) will be due at the law school no later than 8:30 a.m. the following Tuesday. Occasionally I may distribute a short quiz (a few multiple choice questions or a single short essay, for example) at the end of a Tuesday class, with the answer due by 11 a.m. on Thursday. The first order of business in class the day the quiz is due will be to go over the answers, so I trust you understand why, as a general rule, I’m unwilling to accept answers after that. If you are unable to complete a particular quiz on time, be sure to contact me by 8:30 a.m. the day it is due.

Send an e-mail to my assistant, Ms Julie Kendrick – Kendrick@law.edu – with “Crim law quiz #” as the “subject,” and she will assign you a quiz number, which you will use on each quiz throughout the semester. (But for the final exam, you will use the exam number you get from the dean’s office – the same exam number you will use on all final exams during the spring semester.) This will enable me to grade the quizzes anonymously. (You understand, I assume, that I won’t be “anonymous”; you will.) FINAL EXAM. The examination will be an in-school, open book exam. Students will have 4 hours to take the exam, and will be permitted to consult their own notes, the case book, any materials I have distributed, and any course outlines prepared individually or in cooperation with other students, etc.

The exam, however, will not be a research project: I will ignore references to any cases or materials not included within the casebook or materials I distribute. Explicit word limits will be placed on the length of each essay answer. You'll wind up writing about as much on my exam as you would on a three-hour exam, but you'll have time to think about, and review, your answers.

TAPING CLASSES. I prefer not to have my classes recorded, but will record a class if a student has a compelling reason why he or she cannot attend a particular class, such as illness or a family emergency. But I retain the copyright to what I say in class. When a class has been recorded, students may use it in learning the material. However, any rebroadcast, transcription, publication or other use of recordings of my class is prohibited.

Reading assignments are from the text (Kadish, Schulhofer, Steiker & Barkow) unless

designated by "DM" (materials which I will distribute to the class).

This is the number of pages contained in a reading assignment, to help me safeguard against

over-assigning or (shudder) underassigning for any given class.

I. HOW GUILT IS ESTABLISHED

A. Overview of the criminal justice "system."

1. “The centrality of criminal justice in Judeo-Christian civilization” (DM 1-2).

2. Casebook 1-19.

[19]

On p. 18, 1 ¶, revise the 3 sentence to read:

When the prosecution has completed the presentation of its evidence, the defense will move for a directed verdict (MDV) or for a judgment of acquittal (MJV) on the ground that cross out the prosecution has not offered sufficient evidence to permit a rational jury to find guilt beyond a reasonable doubt.

In the same ¶, next to last sentence, change the word “may” to “will.”

(1) Why is the phrase “criminal justice system” misleading?

(2) What are some of the prominent characteristics of this “system”?

(3) How are most cases disposed of – by trial, or by some different means?

(4) What percent of serious, violent crimes are “cleared” by the police, and what does

“cleared” mean, anyhow?

(5) How are most “cleared” cases ultimately decided or disposed of when they reach the courtroom?

B. The process of proof

1. The presentation of evidence. p 19 note 1.

2. Proof beyond a reasonable doubt:

31-36 (Winship and notes following); but not “allocating” or Patterson, which we will cover later;

41, note 1 only. [6]

(1)(2)(3)(4)(5)

(6) As to elements of a crime (what Justice Brennan referred to in Winship on p32 as

“every fact necessary to constitute the crime with which he is charged”:

a) which party (prosecution or defendant) has the burden of production?

b) Who decides whether that burden has been satisfied, and when is the decision made?

c) Which party has the burden of persuasion?

d) What is that burden?

e) Who decides whether that burden has been satisfied, and when is the decision made?

f) How is the jury informed of such matters, by whom, and when and how?

(7) D is charged with bank robbery. The bank's automatic camera filmed the crime, but since the robber wore a mask, the film only reveals that the perpetrator was of the same height and build as the defendant. A man on the street outside the bank has testified, however, that he saw the robber rip the mask off his head as he ran from the bank. This witness positively identifies D as the robber.

(a) What motion should a defense attorney make at the close of the prosecutor's case- in-chief?

(b) What legal standard should the judge apply in ruling on that motion?

(c) How should the judge rule?

(8) The judge, rightly or wrongly, denies the motion. D takes the stand and testifies that he was visiting his sister in a town several hundred miles away on the day of the robbery. His sister confirms D's story.

(a) What motion should a defense attorney make after both sides have rested?

(b) What legal standard should the judge apply in ruling on that motion?

(c) How should the judge rule, and why?

(9) Suppose, after D's sister testifies, a waitress from that town testifies that she served lunch to D and his sister the same afternoon the bank was robbed. Answer questions (a) - ©), as per problem 8, supra.

(d) Instead, D asks the judge to instruct the jury on the insanity defense. Should the judge give such an instruction?

II. DEFINING CRIMINAL CONDUCT (In general)

A. Introduction. 149.

B. Legality.

The basic concept is that a person can be punished for engaging in certain conduct (or for causing a certain result) only if the law, with reasonable clarity, declared that conduct to be a crime. As a practical matter, this means that the defendant violated a criminal statute, and that the statute was worded clearly enough that the defendant was on fair notice that his conduct violated it. This does not mean that a prosecutor has to prove that the defendant actually read the statute before he acted! It does, however, have several implications:

1. Judges no longer have the authority, in the absence of a statute, to declare conduct to be a crime.

2. If a statute is worded so broadly or generally that a reasonable person, reading it, is unable

to understand what it prohibits and what it permits; or if the statute gives a police officer or

Sir William S. Gilbert, The Mikado Act II (1885).

prosecutor too much discretion in deciding what conduct should or should not be considered criminal, it is unconstitutionally “void for vagueness.” Statutes prohibiting loitering, disorderly conduct, vagrancy and the like frequently raise this issue.

3. A court should be cautious about permitting a prosecutor to charge a defendant with violating a statute, where doing so involves a substantial reinterpretation or new and unexpected application of the statute.

Our casebook contains interesting and worthwhile material discussing these issues, but I am not assigning them and you will not be tested on them.

C. Proportionality

The basic principle here was articulated by the Lord High Executioner in Gilbert and Sullivan’s

My object all sublime, I shall achieve in time,

To make the punishment fit the crime, the punishment fit the crime.

Legislatures are given broad discretion in deciding how severely to punish specific crimes, subject only to very limited constitutional scrutiny per the Cruel and Unusual Punishment Clause of the 8 Amendment. Our casebook contains interesting and worthwhile material

discussing these issues (in particular, see Ewing v California, p. 190), but I am not assigning them and you will not be tested on them.

III. THE ELEMENTS OF A "CRIME" (“CULPABILITY”)

A. Actus reus. 205-218. [13]

(10) Concerning Martin:

(a) What are the elements required by the explicit language of the statute?

(b) How does the court justify its decision?

(c) How would Martin be decided under MPC § 2.01?

(d) Suppose Martin had drunk several martinis in a bar, then left, walked slowly but steadily for two blocks, and then suddenly vomited on the street. Could he be successfully prosecuted under the Alabama statute as applied in the Martin decision?

(e) Ditto, if the Alabama statute is to be applied in light of MPC § 2.01 (p. 1201)?

(f) Given the appellate court’s conclusions, how should Martin’s trial have ended, and when?

(11) Concerning Newton:

(a) What was Newton originally charged with?

(b) What was he convicted of?

(c) What is the distinction between the two? (See the California Penal Code, §§ 187, 188, 192, on pp. 421-423.) Does the distinction depend upon what the defendant did, or on some other factor?

(d) Did the appellate court rule that Newton was "unconscious" when officer Frey was shot?

(e) What did the trial judge do (or fail to do) that constituted reversible error?

(f) What does that tell us about the law of homicide?

(g) What does that tell us about when the trial judge must instruct a jury on an issue?

(h) Suppose the trial judge was convinced that Newton's testimony was a lie from beginning to end. How should the judge instruct the jury?

(12) Suppose Newton had not called the doctor as a witness, but had relied solely on his own testimony.

(a) Would the trial judge's action still constitute reversible error?

(b) How should the judge instruct the jury on this issue?

(13) What result in Newton under MPC § 2.01?

(14) Does Decina (p. 214 n. d) have a valid defense under MPC § 2.01?