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General Criminal Law Principles: Principles of Punishment Keyed to E LLEN S. P ODGOR, P ETER H ENNING, A NDREW E. T ASLITZ, AND A LFREDO G ARCIA., C RIMINAL.

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Presentation on theme: "General Criminal Law Principles: Principles of Punishment Keyed to E LLEN S. P ODGOR, P ETER H ENNING, A NDREW E. T ASLITZ, AND A LFREDO G ARCIA., C RIMINAL."— Presentation transcript:

1 General Criminal Law Principles: Principles of Punishment Keyed to E LLEN S. P ODGOR, P ETER H ENNING, A NDREW E. T ASLITZ, AND A LFREDO G ARCIA., C RIMINAL L AW : C ONCEPTS AND P RACTICE (C AROLINA A CADEMIC P RESS 2 ND 2009).

2 Topics Discussed Difference between civil and criminal conduct Theories of punishment Process of criminal prosecution The Basis for Appeal

3 What is the difference between civil and criminal conduct? Unlike civil conduct, criminal conduct, if shown to have occurred, will incur a formal and solemn pronouncement of the moral condemnation of the community. Civil tort law and criminal law have different purposes. Tort individual retributive needs, economic efficiency, moral needs for compensation/reciprocity resulting in damages or injunctions Criminal law societys retributive needs, general and specific deterrence, education, rehabilitation, isolation; addresses communitys sense (and reality) of safety of persons and property resulting in incarceration, fines, probation, parole. See page 7

4 Theories of Punishment Criminal law and punishment serves these sometimes competing, sometimes complementary, goals; a theory of punishment usually argues that only one of these goals should control or be primary: Deterrence Rehabilitation Isolation Education Retribution (Pages 4-7) Theories of Punishment: crim law & punishment serves thesadde competing theories (4)

5 Deterrence (Preventing future harm) General Deterrence: Specific Deterrence: Individuals will not commit crimes for fear of suffering same punishment a current has suffered. Individual who was punished will avoid future crimes because he or she too fears additional punishment.

6 Rehabilitation (Reform the individual) To rehabilitate is to punish an individual in a way that makes her a better person and a better citizen tomorrow. The foundation of this theory is that individuals with free will are capable of changing and contributing to society positively.

7 Isolation This theory advocates isolating wrongdoers from law-abiding persons. Also known as incapacitation.

8 Education This theoretical viewpoint advocates that punishing wrongdoers educates the populace of what rules society considers most sacred and important. This can also assist in general deterrence. Educating the individual, however, is a form of rehabilitation.

9 Retribution Generally Communicative Retribution: Under retribution, the goal is to ensure that the individual gets what he or she deserves. There is a difference between vengeance and retribution. Vengeance individual retribution Retribution societal retribution Right-deprivations help to define the fundamental equal worth of all human beings. When someone denies another a right, they are treating that other person as if they are worth less, thus a society wants to send a signal that the society values the individual as equal to all others. Communicative retribution also looks to groups that may suffer stigma (harm to perceptions of group worth) from individual crimes, for example, racial or ethnic or religious groups. Page 6

10 The Process of Criminal Prosecution Investigation Charge Pre-trial Motion Trial Plea Bargain Jury Instruction Motion for a Judgment of Acquittal Appeal Sentencing Post Conviction Relief

11 See page 49 The investigation Police gathers evidence, arrest s and recommend charges to prosecutor. The charge Ultimately determined by the prosecutor, sometimes through a grand jury handing up the formal accusatory document (indictment) or the prosecutor filing the requisite documents to initiate a prosecution (a complaint). At this point the formal judicial process commences and the will have a right to counsel at all critical stages of the prosecution.

12 Preliminary Arraignment After arrest, defendants are entitled to a prompt (usually within 48 hours) preliminary arraignment at which: The judge decides whether the facts alleged on the face of the complaint, if true, provide probable cause to proceed to trial on each of the charges Bail is set Counsel is appointed for the indigent A trial date (for misdemeanors) or prel. Hrg. (for felonies) is set

13 Pre-trial motions The determination of preliminary issues by the court will affect the ultimate prosecution of the case, such as by: (a) exclusion of evidence (e.g. Miranda and the exclusionary rule) (b) a request to dismiss the charges for insufficient evidence or failure to allege sufficient facts to constitute a particular crime, which will frequently require the court to interpret the statute the is charged with violating. Trial The constitution entitles a to a jury trial if he can be incarcerated on a charge for more than 6 months for the offense. A can waive jury trial if prosecution agrees (some jurisdictions) or even if she does not (other jurisdictions)

14 Plea Bargain The government and the --through counselcan agree to a plea bargain under which a will plead guilty to a certain charge, often in exchange for a lower sentence than would be imposed if the case went to trial and a conviction resulted. The agreement requires the to waive the right to trial and often to proceed immediately to sentencing. The Jury Instruction Jury instructions will at least contain a description of the elements of the crime that the jury must find beyond a reasonable doubt, and the description of the legal requirements for a defense offered by the if there is sufficient evidence to require giving the instruction.

15 Motion for a judgment of acquittal Only a can seek to have the case dismissed for insufficient evidence. This is similar to a civil Directed Verdict. A defendant can seek this after the prosecution has rested (finished presenting all its witnesses and evidence) and before the defense would present its case, if any. The defense is not obligated to present any defense case.

16 The Basis for an Appeal The convicted of a crime must demonstrate a legal error in the trial or pre-trial procedure, which is usually based on: Insufficient Evidence When the government fails to present sufficient evidence of the s guilt. Improper jury instruction When the court gives an improper definition of the crime or interpretation of the statute. Evidentiary challenges When evidence is improperly admitted or the court excluded evidence relevant to the case. Constitutional Challenge When the statute, charges, jury instruction or pre-trial or trial procedure deprived the if a constitutional right.

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