1. BLAW 108 Criminal Law

2. Two main questions… Why does the government punish certain behavior? Why not have individuals who are harmed punish those that have harmed them, just like with lawsuits?

3. Deterrence General Deterrence: The punishment of one person deters other people from wanting to commit the crime because the punishment is a signal. Specific Deterrence: Deters the person from committing the crime again Deterrence Equation: Harshness of the punishment X the probability you will be caught

4. Other considerations… Rehabilitation Incapacitation Retribution (Vengeance)

5. Rehabilitation The initial purpose of jails in the modern world was for rehabilitation. The goal was to make the criminal a citizen again. This continues to play a role in modern criminal law. A prime example is drug treatment. California enacted a major reform of criminal laws called Proposition 47 that focused partly on increasing rehabilitation.

6. Incapacitation The basic idea: people cannot commit crime against people if they are in jail. What do we do about people who commit crime after crime (recidivism)? Can we put people in jail if we think that we can predict future criminal behavior based on certain criteria (juvenile offender, drug user, unemployed, etc.)?

7. Retribution People should be punished for their crimes. But this brings up one of the major issues in criminal law: intent. If you can’t “control” your criminal behavior (genetics / upbringing), why should you be punished?

8. “Actus rea” & “Mens rea” To be convicted of crime, there must be a criminal act, not merely an intention. That is called the “actus rea,” which is Latin for “guilty act.” At least so far, you cannot be guilty of a crime merely by thinking about it. For most (but not all crimes), you must also have a “mens rea,” a “guilty mind.”

9. Different levels of “mens rea” Purpose (aka specific intent). The person has a specific goal or purpose to achieve the goal of their act. Knowledge. The person is practically certain that the result will follow from his act even though the result may not be his goal. This could also be willful blindness. Recklessness. The person consciously takes a substantial and unjustifiable risk where taking such risk is a gross deviation from the behavior of a law abiding citizen. Negligence. The person takes a substantial risk where taking such risk deviates from the behavior of a reasonable person.

10. Many acts may not be criminal if the required “mens rea” is absent Shot in the face

11. Many crimes are context dependent

12. Sometimes “mens rea” is not required at all These are known as “strict liability” offenses. Usually for regulatory offenses that are necessary for functioning society, like putting lead into toys, or parking tickets.

13. Presumption of innocence The accused does not have to prove his or her innocence. The government has to prove guilt. Why?

14. “Beyond a reasonable doubt” The phrase does not actually appear anywhere in the U.S. Constitution, but it is the established law of this country for centuries and there is no indication that it will change any time soon. The goal is to avoid convicting the innocent even at the cost of allowing the guilty to go free. The assumption is: -- higher burden = more guilty go free -- lower burden = more innocent convicted BUT WHAT DOES IT MEAN?

15. California jury instruction 220 The fact that a criminal charge has been filed against the defendant[s] is not evidence that the charge is true. You must not be biased against the defendant[s] just because (he/she/they) (has/have) been arrested, charged with a crime, or brought to trial. A defendant in a criminal case is presumed to be innocent. This presumption requires that the People prove each element of a crime [and special allegation] beyond a reasonable doubt. Whenever I tell you the People must prove something, I mean they must prove it beyond a reasonable doubt [unless I specifically tell you otherwise]. Proof beyond a reasonable doubt is proof that leaves you with an abiding conviction that the charge is true. The evidence need not eliminate all possible doubt because everything in life is open to some possible or imaginary doubt. In deciding whether the People have proved their case beyond a reasonable doubt, you must impartially compare and consider all the evidence that was received throughout the entire trial. Unless the evidence proves the defendant[s] guilty beyond a reasonable doubt, (he/she/they) (is/are) entitled to an acquittal and you must find (him/her/them) not guilty.

16. Burden of proof

17. Last week’s ‘homework’…

18. Final exam