August 18, 1998

Inchoate crimes – incomplete crimes. Can charge with attempt, conspiracy

To prepare: read cases, brief cases, read a newspaper everyday

Office hours: Tuesday and Thursday 2:30-5:00pm

Different burden of proof in criminal v civil cases (OJ case) – that is why you can have different verdicts.

Punitive damages – purpose is to punish the perpetrator.

Double jeopardy only prohibits the state from punishing someone twice for the same act. Therefor protection against double jeopardy does not apply.

Criminal law and torts overlap the most.

Fraudulent contracts could be some over lap with crim law

Section §537 cal penal code: cannot defraud hotels

Civil procedure

Casebook: in our cases the state gov is party bringing criminal charges. Appealing party in almost every case is defendant.

Preponderance: more likely than not

People v Collins: lady pushing grocery cart home from store in San Pedro was accosted from behind by someone who pushed her to ground and took her purse. The victim was only able to identify attacker as a white woman with blond hair. One other witness saw a blond woman clutching purse run out from ally get into a yellow convertible driven by a black man with a mustache. D and girlfriend were arrested about an hour later.

Product rule of probability: snake eyes on a dice chance is 1 out of 36. Said in LA one in 10 cars are yellow, one out of 4 men have a mustache. And only 1 out of 10 black men have a beard. A interracial couple chance is 1 in 1000. About 1 in 3 girls are blond. And 1 in 10 wear hair in pony tail. Multiply all these variables and chance that these are the wrong people is only 1 in 12,000,000. This is beyond a reasonable doubt. Jury found D guilty.

Problems: bad math. These variables are all independent but were not treated as so. Attempt to reduce the concept of "proof beyond a reasonable doubt" to a mathematical formula was something the court did not like. In criminal law the burden of proof is much more stringent than any other type of law.

August 20, 1998

Sect 6 CA no act or commission commenced after 12 noon this takes effect as law, is criminal or punishable except as authorized by this code or statutes.

MURDER: Unlawful killing of a human being with malice or forethought.

Restatements – torts, property, contracts ; put together by the ALI

Instead of a restatement criminal law has something called the modal penal code. Written by ALI. IN back of our book.

FIVE MODALS OF PUNISHMENT

1. Theory of general deterrence – purpose of criminal punishment is to discourage people from engaging in criminal activity. Prohibits activity and indicate that those who engage in it will be punished. Sends a message to not engage in this activity. Level of activity is supposed to decrease. Want to deter public at large.
2. Specific deterrence – ex. Death penalty. Deter people against specific crimes. Take those who are lawbreakers and put them where they cannot do any more harm to society. Remove harm-doers from society.
3. Rehabilitation – purpose of punishment is to reform someone, teach a lesson, in future will avoid misbehaving. Need to make sure that punishment fits offender . Look at unique circumstances of the individual. See why stuff went wrong and figure out how to fix it.
4. Retribution – revenge. Think it is the morally correct thing to do to those who harm. Rationally theory of revenge. Don’t want offended individuals to seek their own justice so we have the state do it. More fair that way. State will exact retribution. Person offended will get justice. More harmful the act, the more severe the punishment.
5. Denunciation – criminal law embodies standard of conduct to which all society subscribes. When one is pronounced a criminal, we are making an important public statement. Saying you are a criminal. Ex. Scarlet Letter.

Hypothetical case: People v Edward Jones (p34)

22 year old shot father for abusing family. Convicted of 2^nd degree murder

People v Charles Green (p34)

23 year old burglarized a house. Had a rough childhood. Spent time in a youth detention center. Does not like to work, but is not dumb. Uses heroin, cocaine. convicted for 2^nd degree burglary.

Can the luck of the draw determine how a particular offender is to be punished? NO

3 models to show how to deal with disparity if judge were to only make personal choice

1. common law model – recognized 2 categories:

1. felonies (punished by death)
2. misdemeanors (can be jailed for up to one year)

1. indeterminate sentencing

1. sentence is a range of punishment ex:

1. murder: 0 – life (years)
2. robbery – whatever is decided….

1. determinate sentencing

1. specific sentences to specific crimes

1. manslaughter, murder

This system gives lots of power to prosecutors. Prosecutor decides what to charge the person with.

August 25, 1998

Case of Tree Frog Johnson and Alex Cabarga - Page 85

-sex offenders, jury convicted both of them. Although Alex was probably brainwashed by Tree Frog, he was still sentenced to a 200+ year prison term.

Is Alex just as guilty as Tree Frog? Is he just as dangerous?

Kansas v. Hendricks 117 S.C. 2072 (1997)

See: http://caselaw.findlaw.com/cgi-bin/getcase.pl?court=US&vol=000&invol=95-1649

Hendricks is a posterboy for the law for sexually violent predators. Many incidents of sexual indecency.

Held: The Act's definition of "mental abnormality" satisfies "substantive" due process requirements. 2. The Act does not violate the Constitution's double jeopardy prohibition or its ban on ex post-facto lawmaking. 3. Hendricks' confinement does not amount to a second prosecution and punishment for the offense for which he was convicted. Because the Act is civil in nature, its commitment proceedings do not constitute a second prosecution.

And the conditions surrounding that confinement do not suggest a punitive purpose on the State's part.

We therefore hold that the Act does not establish criminal proceedings and that involuntary confinement pursuant to the Act is not punitive – because it is a limited group of people.

Sexually violent predator – say there is not really any treatment. So just keep the person in jail.

August 27, 1998

To constitute crime there must be unity of act and intent. Every crime or public offense there must exists a union of act and intent or criminal negligence.

Sometimes there is confusion with the act and the intent.

Proctor v. State 176 P. 771 (1918) p 124

Cannot make crime for renting a place for the purpose of opening a liquor bar?

D made a motion for demurrer.

Instead of using the word "keeping" the statute would have been much stronger if it has included a word like "opening" or "maintaining"

How about being in a room where someone is using drugs? Is this illegal?

By staying in room, making an decision to stay in room: an act. Is it voluntary?

11365. (a) It is unlawful to visit or to be in any room or place

where any controlled substances which are specified in subdivision

Can we make it criminal in a failure to act?

Should we have a "Good Samaritan Act?"

We need to find a duty for failure to act..

Should we impose a broader duty to intervene in cases where someone needs help? Like in a drowning child case, or the Berkeley student case..

Huey Newton case: he shot gun as a reflexive action after he was shot.

Requirement of an act in order to cause a criminal liability:

1. cannot define criminal act in terms of a status

2. cannot criminalize a status that the person did not will in.
3. When punishing possession are not punishing status that one does not have control; can end possession at any time.

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