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Criminal Law Outline - CRIMINAL LAW Professor C Bobis St...

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C RIMINAL L AW Professor C. Bobis St. John’s University School of Law Fall 2002 Background Crimes vs. Civil Wrongs Crime – “Conduct which, if duly shown to have taken place, will incur a formal and solemn pronouncement of the moral condemnation of the community” The crime effectuates a social harm , harm to society in general Burden of proof: “Beyond a reasonable doubt” D is presumed innocent May be punishable by imprisonment or death Civil Wrongs – “Personal Wrongs” (Torts, Breaches of Contracts) Burden of proof: “Preponderance of evidence” or sometimes “Clear and convincing evidence” (something less than burden in criminal cases) Civil wrongs are not punishable by imprisonment – at least theoretically, some offenders may be committed to mental institutions for life without being convicted of any crime, but that considered to be a rehabilitation not punishment Right to a Jury Constitutional Issues 6th Amendment – Right to a speedy and public trial by an impartial jury of one’s peers 8th Amendment – No fact examined by a jury can be reviewed by any court 5th Amendment – No double jeopardy; D cannot be retried after jury acquits (Appellate courts may acquit after jury convicts) Jury Nullification Jury may acquit D even if state proves the elements of the crime beyond a reasonable doubt because (1) sympathy for D, (2) rejection of antiquated, unfair laws or (3) reaction to government oppression Jury does not have to explain the verdict (“Guilty” or “Not guilty” is all what is required) Courts cannot take the power of nullification from jury, but will not advertise it to jurors either Jeff Goland Page 1 5/13/2009
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Principles of Punishment Three “big questions” of criminal law: - Why do we punish? - Who do we punish? - How much do we punish? Justification Utilitarian Justifications Purposes/General Theory Crime Prevention – look forward to the benefits of punishment (deterrence) “Cost/Benefit Analysis” – Balancing the social benefits of deterring crime against inherent evil of inflicting punishment on criminals Benefits of Punishment Specific Deterrence Individual Deterrence – focuses on determining how much punishment is required to deter this specific criminal from violating the laws again Incapacitation – focuses on preventing crimes by specific criminals by physically restraining them (by imprisonment or death penalty) Reform/Rehabilitation – focuses on preventing crimes by “fixing” the criminals – they will not commit new crimes not because they are afraid of the punishment (as in individual deterrence above), but because they know better now General Deterrence – focuses on determining how much punishment is required to deter others from committing similar crimes – uses specific criminal to deter others (this particular individual may and should get more
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