Criminal Law-JH - Justin Hoffman - Criminal Law Outline...

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Justin Hoffman - Criminal Law Outline – Prof. Simons I Introduction – Differences between criminal system & civil system A) Public harm vs. private harm –remedies are different a. Assault (battery) – monetary damages b. Criminal charge – general deterrence maybe, jail time, social harm – interest of society in remedying the wrong. The state exacts the remedy B) Why Punish? 1. Punish wrongdoer rather than compensate victim. 2. Moral element of wrongdoing – civil law is in theory morally neutral – a fine in a criminal case is not compensation, but punishment. In theory, the moral condemnation that the punishment carries with it is the distinguishing feature of the criminal system. C) Procedural differences a. Preponderance of evidence vs. beyond a reasonable doubt standard 1. In Re Winship – Supreme Court outlines due process for BARD (5 th amendment) the reason behind the criminal system affords a higher standards is because the prosecution is by the state. (Right to jury, compulsory process, confrontation, right to counsel, none of which apply in civil cases.) 2. 5 th Amendment – Only applies to federal government – in state courts the 14 th amendment applies. Supreme Court used 14 th amendment to make bill of rights applicable to the states. 7 th amendment allows a right to a jury in a civil case but does not apply to the states. 3. Why require a jury in criminal cases? i. Historical distrust of federal government. ii. The jury should symbolically represent society. 4. BARD – quantification – how high of a %? D) Division between crimes a. Felonies 1. NY – A through E, depending on severity 2. MPC – 1 st through 3 rd Degrees. (Common law was just felony / misdemeanor.) i. Model Penal Code – Codification of common law criminal law. Started in 1950’s by judges and professors as an effort to make a binding law on states. Not adopted anywhere, only used as a model. In 1965, NY substantially modified its penal law largely along the lines of the MPC. ii. Common Law – Important because statutory crimes came from the common law and shows its development. b. Misdemeanors – NY – A, B, etc. c. Infractions / Violations – Speeding tickets. 1
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II Principles of Punishment A) Theories of Punishment a. Retributivism – Backward looking, they don’t care what happens in the future. They look backward at the culpability of the harm to determine the just deserts. 1. Harm – Looks at the harm inflicted. 2. Culpability – Free will. Looks at the choices the defendant made. 3. Remorse – some evidence of retributive culpability – it may lessen retributive desert. b. Utilitarianism – Utilitarian arguments are forward looking and consequential, looking towards prevention. 1.
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This note was uploaded on 02/18/2008 for the course LAW 1010 taught by Professor Cavanaugh during the Spring '00 term at St. Johns Duplicate.

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Criminal Law-JH - Justin Hoffman - Criminal Law Outline...

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