Criminal law exam 1 notes PDF

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EXAM 1 STUDY GUIDE CRIMINAL LAW Chapter 1: Fundamentals of Criminal Law and Procedure What is Criminal Law?  Formal means of social control  That branch of law prohibiting certain forms of conduct and imposing penalties on those who engage in prohibited behavior  Core function is to punish wrongdoers Substantive Law  Prohibits certain forms of conduct by defining crimes and establishing the parameters of penalties o Possession of heroin, drunk driving i.e. Procedural Law  Regulates enforcement of the substantive law, the determination of guilt, and the punishment of those found guilty of crimes o Trial procedures, sentencing 3 Fundamental Principles 1. Constitutional Supremacy: criminal law and procedure is subordinate to the U.S Constitution 2. Federalism: division between the national government and the 50 states 3. Separation of Powers: the federal government and the states have separate/legislative, executive, and judicial branches What is a Crime?  Actus Reus or “wrongful act”  Mens rea or “criminal intent” o Not the same as motive "guilty mind" o Having formed a mental purpose to act o Intentionally committed a prohibited act o Exceptions  Felonies o More serious crimes o Imprisonment for more than 1 year  Misdemeanors o Less serious o Imprisonment for less than 1 year ND Classifications of Crime (N.D.C.C. 12.1-32-01)  Class AA felony - max life without parole  Class A felony - max of 20 years and/or $20,000 fine  Class B felony - max of 10 years and/or $10,000 fine  Class C felony - max of 5 years and/or $10,000 fine  Class A misdemeanor - max of 1 year or fine of $3,000  Class B misdemeanor - max of 30 days or fine of $1,500  Infraction - max fine of $1,000

Purpose of Criminal Law  Government duty to protect lives and property of citizens  Society's interest in protecting the public peace, order, and safety  Presentation of public morality  Protect public health and natural environment  Efficient and honest public administration and the administration of justice Morality and Justice  Preservation of public morality is regarded as an important function of criminal law  Today this assumption is coming under question  Much of criminal law is based on the collective societal judgment of what is right and wrong  Law must reflect prevailing morality of the people  Those values that are not widely shared will be subject to challenge  Criminal law evolves as society's standards change o i.e. blasphemy, not going to church on Sunday, cohabitation  Criminal law is viewed as wrongs against society, not specific individuals o Victim starts the action by filing a formal complaint with the police o Victim becomes a witness in the prosecution  Based on the premise that individuals are responsible for their actions and must be held accountable for them Criminal Law v. Civil Law  Civil law: provides remedies for private wrongs where the state has less interest o Breaches of Contract: violation of agreements o Torts: wrongful act that violates a legal right of the injured party  Civil law and criminal law often overlap - when conduct is criminal and also involves a tort Origins and Sources of Criminal Law  Mala in Se: inherent wrings, universally condemned behaviors  Examples: murder, rape, arson, robbery  Mala prohibita: offenses only because they are defined by law as wrong o i.e. gambling, underage drinking Law in the Western World  Code of Hammurabi - Babylonia 2000 years before christ  Draco's Strict Code - Athenian city-states in the 7th century B.C. o Today very strict rules/penalties "draconian"  Twelve tables - Roman law in the 5th century B.C.  Code of Justinian - 6th century A.D. codification of Roman Law  Napoleoonic Code - 1804 codification of law in France o Became a model of a uniform system of law for western european nations o Considered a "roman law" system - based on the primacy of the statutes enacted by the legislature o Code subject to minimum judicial interpretation

English Common Law  Common law - refer to those customs, traditions, judicial decisions, and other materials that guide courts in decision making but have not been enacted by the legislatures into statutes or embodied in constitutions  In 1066 after the Norman conquest, english law was a compilation of local customs  The new king appointed judges to settle disputes and these decisions became precedent to guide future judges  Decisions were based on customs and recorded to serve as precedent  Stare Decisis - common law doctrine of following precedent  Common law developed through judicial decisions, not legal codes like Roman law  17th century saw the emergence of representative government in England  Dominance of common law courts diminished  Parliament began adapting statutes that revised and supplemented common law American Criminal Law  American criminal law is derived from common law as it existed in 1776  States adopted common law to the extent it did not conflict with new state and federal constitutions o Louisiana is the only state based on the Napoleonic Code  Congress did not adopt common law  Congress passed statutes consistent with the U.S constitution to create federal criminal law  Common law was eventually superseded by legislatively defined offenses or statutes  The states have the primary responsibility to define crimes and punishments o Common law definitions have been updates o Local government adopt ordinances  Federal government has more limited role in developing criminal law o Congress does not have "police power" or the broad authority to enact prohibitions to protect public order, health and safety o Limited authority to enact criminal laws that relate to congress' legislative powers and responsibilities  An individual can be prosecuted for violating federal and state criminal statute Sources of Procedural Law  Legislative bodies by enactment of statutes o Promulgated by the courts through judicial decisions o Courts develop rules and court procedures Constitutional Limitations to the Dev. Of Criminal Law  Bill of Rights - contains the most important constitutional provisions relative to criminal justice o Adopted by congress in 1789 o Ratified by the states in 1791  Regulate both procedural and substantive law Amendments  1st Amendment - freedom of speech  4th Amendment - unreasonable search and seizure  5th Amendment - protect against self incrimination

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6th Amendment - jury by trial 8th Amendment - cruel and unusual punishment 5th & 14th Amendment - guarantees due process Most provisions of Bill of Rights also apply to the states States can grant greater protection than afforded under the U.S constitution, but not less

Role of Courts  Courts through judicial decisions o Trial courts:  Make factual determinations  Apply settled law  Impose sanctions Appellate Courts:   Interpret constitutions and statutes  Precedent  Legal reasoning by analogy - preserve the past but also consider contemporary social, cultural, and economics  Theory behind common law - applying cultural norms  Developed rules to resolve ambiguity in the law Criminal Process  Due process clauses of the 5th and 14th amendments o Forbid the taking of a person's life, liberty, or property without due process of law o Due process refers to the procedural safeguards that guarantee fairness  Fair notice  Fair hearing  Presumption of innocence  Proof beyond a reasonable doubt:  Fact finder must achieve the "moral certainty" that arises from eliminating "reasonable doubt" as to the defendants guilt  Preponderance of the evidence standard used in civil proceedings  Less than 5% if cases go to trial  Causes of the "sieve effect"  People admit guilt  Insufficient evidence  Procedural errors  Police misconduct  Plea bargaining  Pros & Cons  U.S Supreme Court upheld the process as constitutional

Chapter 3: Constitutional Limitations on the Prohibition of Criminal Conduct Judicial Review  Framers of the U.S Constitution understood that the ability to make and enforce criminal law could be a serious threat to liberty o Created a Constitution to put limits on Congress' ability to enact criminal statutes  Courts are empowered to declare null and void laws that violate the principles of the constitution o Marbury v. Madison (Judicial review) courts have right to declare null and void decisions by Congress  Unconstitutional per se - inherently violates a constitutionally protected liberty  Unconstitutional as applied - law is facially valid but enforced in a way that restricts a person's constitutional rights Power to Enact Criminal Laws  Rule of Law - "there is no crime, there is no punishment, without law" o No one can be guilty of a crime in the absence of a law prohibiting the conduct  Police powers - authority of government to enact legislation to protect the public health, safety and order, welfare, and morality o Vested primarily in the state legislatures  U.S congress' ability to enact criminal law is limited  Article 1, Section 8 enumerates Congress' authority o Enumerated powers  Power to establish rules governing immigration and naturalization, punish piracies and felonies on high seas, punishment of counterfeit U.S currency, regulate interstate commerce  Article 1, Section 8 - Necessary and Proper Clause  Doctrine of implied powers McCulloch v. Maryland (1819)   Expands congress' legislative authority  Must be plainly adapted to the goal of furthering one of congress' enumerated powers  Most significant enumerated power is to regulate interstate commerce  Congress has stretched the concept to justify broader authority to enact criminal statutes  Ex: computer crimes, transportation of kidnapped persons or stolen automobiles, carjacking United States v. Lopez (1995)   Struck down the gun-free school zones act of 1990  United States v. Morrison (2000)  Struck down a federal civil remedy to victims of gender-motivated violence Gonzales v. Raich (2005)   Upheld congress' authority to criminalize the possession and medical use of marijuana

Delimiting the Crime of Treason  Treason: betrayal of one's country o Making war against it o Giving aid and comfort to its enemies  At common law there was a special punishment - hanged, entrails removed, burned, head cut off, body divided into four parts at king's disposal  English kings used treason to punish political dissenters o Framers wanted to protect against this abuse so they drafted Article 3, Section 3, Paragraph 1:  Has to be proven by two witnesses or a confession in open court  Protects against being convicted on circumstantial evidence alone  Extremely difficult to convict a person of treason Ex Post Facto Laws  Law exists when after an action is committed, the legislature then defines it as a crime, and a punishment is implemented o Article 1, Section 9 prohibits congress from ex post facto laws  Principle of legality - people have the right to know in advance if conduct is illegal  Ex post facto only applies to criminal laws  Cannot apply laws retroactively o Must look to the law that existed at the time the illegal activity took place  Four types of Ex Post Facto Laws: o Law that makes an action criminal after the act was committed o Law that makes a crime greater than when the crime was committed o Law that inflicts a greater punishment than when the crime was committed o Law that alters the rules of evidence after the crime was committed  Examples:  Miller v. Florida (1987): FL's revised sentencing guidelines as applied to crimes committed before the enactment of the new guidelines  Carmell v. Texas (2000): defendant convicted under amended law allowing convictions based on testimony of child under age 18  Stogner v. California (2003): CA increased statute of limitations for child molestation cases Bill of Rights  First 10 amendments to the Constitution o Ratified in 1791  Barron v. Baltimore (1833): original view that the bill of rights only placed limitations on the U.S. Congress, not the states  14th amendment - ratified in 1868 o Section 1 stops states from depriving any person of life, liberty, or property without due process of law  Due process clause makes enforceable against the states these provisions of the bill of rights that are "implicit in the concept of ordered liberty"  Virtually all provisions of the bill of rights have been made applicable to the states through the 14th amendment o Doctrine of incorporation

Freedom of Expression  Includes freedom of the press and freedom of speech o 1st amendment  First amendment does not give absolute protection to speak whenever, wherever, or whatever you want  Courts must strike balance between freedom of expression and society interest in maintaining peace and order  Speech lacking in value is not protected: obscene, profane, libelous, and insulting, or "fighting words"  Clear and present danger doctrine - public speech - waking can only be prohibited when there is imminent lawless action  Symbolic speech is protected o Ex: wearing symbols, sit-ins, civilians wearing military uniforms, picketing o Flag burning - upheld as protected speech  U.S. Supreme court has struck down federal statutes that impose criminal punishment for this act  Maintaining public order  State can take action to protect public order and safety and prevent riots  "Fighting words" - words that are likely to produce a violent reaction  Hate speech - refers to any instance of hateful expression, whether verbal, written, or symbolic that is based on racial, ethnic, or religious prejudice  Generally protected unless conducting with an intent to intimidate  Obscenity - not protected by the first amendment  Difficult to determine/define what is obscene  Profanity - protected unless becomes "fighting words"  Cohen v. California (1971) - "fuck the draft" supreme court overturned man’s conviction  People v. Boomer (Mich. App. 2002) - cussing canoeist – right to free speech  City of Bismarck v. Schoppert, 469 N.W.2d. 808 (N.D 1991) Freedom of Assembly  First amendment protects the right of people to peaceably assemble  Government can limit the right to assemble to make sure it does not impede the operations of government or other citizens o Reasonable time, place, and manner regulations o Cannot be unnecessarily burdensome Freedom to Exercise Religion  Deeply rooted belief and legislatures rarely try to interfere o Sometimes the unpopular religious beliefs will get attention  Examples: o Door to door solicitation without a permit (protected) o Polygamy (not protected) o Use of peyote (mixed) o Use of poisonous snakes (not protected) o Animal sacrifice (protected)

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Refusal to give medicinal treatment for religious people Protected for adults Does not typically apply to treatment for children Examples: MN boy denied treatment for lymphoma Philadelphia couple lose two children to faith-healing

Right to Keep and Bear Arms  2nd amendment provides for "a well regulated militia, being necessary to the security of free state, the right of people to keep and bear arms, shall not be infringed"  United States v. Miller (1939) - related to militia  D.C v. Heller (2008) - not related to militia  State courts tend to give wide latitude to state and local gun control laws Vagueness and Over Breadth  5th amendment provides that "no person… shall be deprived of life, liberty, or property without due process of law"  Two elements: o Fair notice - right to know whether conduct is illegal o Fair hearing  Vagueness doctrine is designed to limit the discretion of police and prosecution in how a law is enforced  Secondary issue to make sure public understands the proscribed activity  Supreme court has said that statutes can be clarified through judicial interpretation  Doctrine of over breadth - applies to criminal laws that are written so broadly it may infringe upon 1st amendment freedoms  Anyone who believes their 1st amendment rights might be infringed upon can challenge a statute for over breadth o Do not need standing  Coats v. City of Cincinnati (1971) o Supreme court struck down a law making it unlawful for "three or more persons to assemble on any sidewalks and there conduct themselves in a manner to persons passing by" o Found to be vague and overbroad Freedom from Compulsory Self-Incrimination  5th amendment states that no person "shall be compelled in any criminal case to be a witness against himself" o Right not to testify in criminal trial o Right to remain silent when faced with police interrogation  Also limits legislatures ability to require parties to report info to the police that can place them in jeopardy of criminal prosecution The Prohibition Against Cruel and Unusual Punishments  8th amendment o Applies to both procedures by which a criminal sentence is imposed and the substantive laws that define punishment

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In most 8th amendment cases, the supreme court focuses on the constitutionality of the sentence, not the validity of the underlying statute

Right to Privacy  Privacy is not mentioned in the text of the U.S. Constitution  Supreme court has held that personal privacy is protected from legislative interference  9th amendment provides that "the enumeration in the constitution, of certain rights, shall not be construed to deny or disparage others retained by the people"  Griswold v. Connecticut (1965) - Supreme Court invalidated a law proscribing the use of birth control for married couples o First explicit recognition of the right to privacy  Roe v. Wade (1973) - right to privacy extends to a women's decision to terminate a pregnancy o Affirmed in 2000 and 2007 - cannot prohibit a woman from having an abortion prior to fetal viability  Extended this rational to the issue of sexual conduct between consenting adults o Applied primarily to laws prohibiting homosexual sodomy o Concern about what this means for criminal offenses such as bestiality, incest, and bigamy  Privacy rationale applies to matters concerning "the right to die" o Have right to refuse medical treatment  Washington v. Glucksberg (1997) - Supreme court upheld law criminalizing doctorassisted suicide o Courts unwilling to extend right to privacy in these situations Equal Protection  14th amendment forbids states from denying persons equal protection of the laws o 5th amendment due process clause imposes the same duty on the federal government  Used to challenge the validity of criminal laws o Ex: interracial marriages, birth control for singles v. married couples Standards of Judicial Review  Criminal law that touches on a constitutionally protected interest must further a legitimate interest in public health and safety  Rational basis test - does the law provide a rational means of advancing the (?)  Strict judicial scrutiny - standard of review when the law infringes upon a fundamental right o Presumed to be unconstitutional o The government must show that the law furthers a "compelling government interest" and is narrowly tailored to that purpose o Applies when law infringes on a fundamental right Importance of State Constitutions  Highest court of each state gets to determine the constitutionality of the states constitution and statutes o States can give more protection (but not less) under their state constitution than are awarded under the U.S. constitution  Typically, a state decision is not subject to U.S. Supreme Court Review

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If the state implicates a federal law

Chapter 4: Elements of Crimes and Parties to Crime Actus Reus  "The act of a criminal"  Willfully commit a proscribed physical act, or intentionally fail to act where the law requires action  Prevents a person from being guilty based on thoughts or intent alone What is an Act?  Bodily movement whether voluntary or involuntary  Crime requires a voluntary act o Only acts made from free choice should be criminally punished  N.D.C.C. 12.1-01-04(1) Who Committed the Act?  Words can be an "act" o Example: yelling "fire" in a crowded theatre, making a threat against the president  Often depends on the manner in which the words are spoken Failure to Act as Actus Reus  Act of Omission - a person'...