INSTRUCTORS MANUAL - to Accompany Criminal Law and Pro cedure: An Ov...

INSTRUCTOR’S MANUAL

to Accompany Criminal Law and Pro

cedure:

An Overview Fourth Edition Ronald J. Bacigal M ary Kelly Tate 1 / 4

1 © 2015 Cengage Learning. All Rights Reserved. May not be scanned, copied or duplicated, or posted to a publicly accessible website, in whole or in part.

PART I: SUBSTANTIVE CRIMINAL LAW

CHAPTER ONE: DEFINING AND PROVING CRIMES

Lecture Notes The instructor may wish to review how society’s emphasis on the various purposes of punishment has shifted over the course of time. For most of its history, the criminal law focused on retribution, but during the first half of the 20th century rehabilitation became a dominant theme. The last few decades have seen retribution and incapacitation return to prominence, and the current political climate has seen increased efforts to eliminate parole, mandate minimum sentences, and create a policy of “three strikes and you’re out.”

Common Law Students sometimes need to be reminded that the United States does not have a unified criminal law. Although the federal criminal code applies throughout the geographic limits of the United States, most crimes are not “federal crimes.” Each of the 50 states has its own criminal law, and the variations in defining and punishing crimes can be great. As the source of so much of our modern-day law, the common law (and to a lesser extent, the Model Penal Code) serves as the best means of focusing on the similarities of the general concepts embodied in various criminal codes. Even those states that have abolished the common law often refer to the common law for definitions of terms used in their criminal code.The trial of William Penn and the Shaw case provide an opportunity to discuss whether an unwritten common law is desirable because of its flexibility in adapting to unforeseen evils, or whether this flexibility is inherently

unfair. Pose the following hypothetical:

Shaw notes that “no one can foresee every way in which the wickedness of man may disrupt the order of society.” Thus, no matter how detailed the criminal code, “gaps” or “loopholes” will always remain through which a wrongdoer may escape punishment. Can we plug these loopholes with a catch-all statute that provides: “Notwithstanding the specific provisions of this Code, any act which is deserving of punishment according to sound popular feeling of the community shall be punished.”?

If students are hostile to this statute, they can be asked: What could be fairer than to allow the defendant to go before a jury, tell his or her story, and trust the jury (the defendant’s peers) to judge whether or not the defendant acted properly? Doesn’t faith in the jury system and trust of our fellow citizens suggest that we should submit ourselves to the judgment of the community, rather than hide behind legal technicalities? At some point in the discussion, the instructor may volunteer the fact that this type of catch-all statute was utilized in Germany while the Nazis were in power.

Statutory Law Depending on the audience, the instructor can emphasize the political/jurisprudential debate over judicial restraint and judicial activism, or the instructor may focus on the practical aspects of researching and analyzing alternative ways of reading criminal statutes. The vagueness doctrine recognizes that a statute may be so ambiguous that no amount of judicial interpretation can plug its many gaps and loopholes. Instead, the legislature is given an “F” for its failing effort, and is told to rewrite the statute to make it comprehensible.In a noncriminal area, the controversy over the 2000 presidential election results in Florida demonstrated just how much judicial interpretation of statutes and constitutional provisions can vary. The Florida Supreme Court, the U.S. Supreme Court, and the Florida secretary of state were all reading the same statute. Yet not only did the three disagree, but the state and U.S. Supreme Court justices were almost equally divided over diametrically opposed readings of the applicable statute.Returning to criminal law, the precedent for Chicago v. Morales was Kolander v. Lawson, 461 U.S. 352 (1983), where a black male was stopped or arrested 15 times for walking late at night in white neighborhoods. The police acted pursuant to a statute that required persons who loiter or wander on the streets to identify themselves and to 2 / 4

2 CHAPTER 1

© 2015 Cengage Learning. All Rights Reserved. May not be scanned, copied or duplicated, or posted to a publicly accessible website, in whole or in part.account for their presence when requested by a police officer. The California courts construed the statute to require a person to provide “credible and reliable” identification when requested by police who have a reasonable suspicion of criminal activity sufficient to justify a stop under the standards of Terry v. Ohio, 392 U.S. 1 (1967). The California courts defined “credible and reliable” identification as “carrying reasonable assurance that the identification is authentic and providing means for later getting in touch with the person later.” The U.S. Supreme Court found the statute unconstitutionally vague on its face because the statute failed to clarify the requirement for a “credible and reliable” identification.

Constitutional Limitations The many procedural limitations that apply to the criminal justice system are addressed in the second half of the text, while this section focuses on the limitations on substantive criminal law. This section illustrates that the United States is not a pure democracy, but a constitutional democracy where the will of the majority (as expressed by the legislature) may be frustrated if it runs contra to constitutional provisions. For example, whether it be a legitimate concern or irrational panic, a frightened majority cannot make it a crime to have AIDS.

Proving the Crime This section deals with burdens of proof and admissibility of evidence; thus, the instructor might prefer to postpone this coverage until Chapter 15, which covers trial proceedings. The section is included at this point in the text in order to expose students to the concept of different standards of proof, and how these standards reflect fundamental concerns regarding what society will require before punishing for criminal conduct. That is, before society will restrict a citizen’s freedom, there must be strong proof that the citizen engaged in prohibited conduct.The section on presumptions and permissible inferences is somewhat technical and less fundamental than the rest of the chapter. If the instructor is focusing on the theoretical aspects of criminal law, this section may be deleted.

Approaches to the discussion questions

• The discussion of Shaw and the German “catch-all” statute on page 1 of this manual addresses the substance of

the question.

• I am not sure whether there is any answer other than talking about concepts of judicial restraint and judicial

activism in interpreting the Constitution. A judicial “liberal” might extend Stanley v. Georgia to encompass a right to possess marijuana in a private home (see Ravin v. State, 537 P.2d 494 [Ala. 1975]) and a right to engage in private sexual conduct. A judicial “conservative,” however, might restrict or overturn Stanley v. Georgia in order to defer legislative judgment about lawful private conduct.

• In recent times, there have been numerous prosecutions of women who take crack cocaine or other drugs while

pregnant. The charges range from child abuse to felonious assault. Such charges have been upheld on grounds that the act of taking drugs is distinct from the status of being a drug addict. Compare Powell v. Texas, 392 U.S.514 (1968), (holding that an alcoholic could be punished for the act of appearing in a public place in an inebriated condition), with Johnson v. State, 602 So.2d 1288 (Fla. 1992), (deciding whether Florida statutes permit the criminal prosecution of a mother who ingested a controlled substance prior to giving birth, for delivery of a controlled substance to the infant during the 30 to 90 seconds following the infant’s birth, but before the umbilical cord is severed). The Johnson court held that the rules of statutory construction require courts to strictly construe criminal statutes, and that “when the language is susceptible to differing constructions, [the statute] shall be construed most favorably to the accused.” In strictly construing criminal statutes, the Johnson court held that only those terms that are “clearly and intelligently described in [a penal statute’s] very words, as well as manifestly intended by the Legislature” are to be considered as included in the statute. The court found that the legislative history did not show a manifest intent to use the word “delivery” in the context of criminally prosecuting mothers for delivery of a controlled substance to a minor by way of umbilical cord. This lack of legislative intent coupled with uncertainty that the term “delivery” applied to the facts of the case, compelled the court to construe the statute in favor of Johnson.

• / 4

Defining and Proving Crimes 3 © 2015 Cengage Learning. All Rights Reserved. May not be scanned, copied or duplicated, or posted to a publicly accessible website, in whole or in part.A quick look at cases cited in this chapter

• Gregg v. Georgia, 428 U.S. 153 (1976), overturned Furman v. Georgia and recognized that the death penalty is

not cruel and unusual punishment if it is imposed under appropriate procedural safeguards. (Excerpts from Gregg appear in Chapter 16.)

• Bowers v. Hardwick, 478 U.S. 186 (1986), refused to recognize a constitutional right to same-gender sex and

allowed the states to regulate sexual conduct. (The case is discussed in Chapter 7.)

• Connally v. General Constr. Co., 269 U.S. 385 (1926). The statute in question created an eight-hour workday

for all persons employed by the state of Oklahoma and required that “not less than the current rate of per diem wages in the locality where the work is performed shall be paid.” The court held that the statute presented a

double uncertainty:

• “current rate of wages” does not denote a specific or definite sum, but a range of amounts varying from

time to time and depending on class and kind of work done and experience of workman; and

• “locality” is too indefinite.

• Texas v. Johnson, 491 U.S. 397 (1989). During the 1984 Republican National Convention in Dallas, the

defendant participated in a political demonstration to protest the policies of the Reagan administration. After a march through city streets, defendant burned an American flag while protesters chanted. No one was physically injured or threatened with injury, although several witnesses were “offended” by the incident. Johnson was convicted of desecration of a venerated object in violation of a Texas statute. The court held that the defendant’s conviction violated First Amendment protections. Texas’s interest in preserving the flag as a symbol of nationhood and national unity was related to expression in this case; therefore, the restriction on Johnson’s political expression was content based and subject to the “most exacting scrutiny.”

• Griswold v. Connecticut, 381 U.S. 479 (1965). A Connecticut statute prohibited the use of contraceptive

devices. Defendants, the executive director and medical director of the Planned Parenthood League, counseled others to use contraceptives and were convicted as accessories to a crime. The court found that forbidding the use of contraceptives, rather than regulating their sale or manufacture, was unnecessarily broad and thereby invaded the right of privacy surrounding the marriage relationship.

• Stanley v. Georgia, 394 U.S. 557 (1969). Stanley’s home was searched pursuant to a search warrant for

evidence of bookmaking activities. Although the search yielded little evidence of bookmaking, an agent discovered three reels of 8-millimeter film. The agent viewed the films, concluded that they were obscene, and seized them. Stanley was convicted for knowingly possessing obscene material. The Court reversed the conviction, recognizing that although states retain broad power to regulate obscenity, that power does not extend to mere possession of obscene material by an individual in the privacy of his or her own home. The Court noted that if the First Amendment means anything, it means that a state has no business telling an individual, sitting alone in his or her own house, what books he or she may read or what he or she may view.

• Allen v. Illinois, 478 U.S. 364 (1986). The state filed a petition to have the defendant declared a sexually

dangerous person within the meaning of the Illinois Sexually Dangerous Persons Act (“Act”). Pursuant to the Act, the court ordered the defendant to undergo two psychiatric exams, and the state presented the examining psychiatrists’ testimonies. The defendant objected on grounds that the state had elicited the information from him in violation of his privilege against self-incrimination. The court held that proceedings under the Act are not “criminal” within the meaning of the Fifth Amendment’s guarantee against compulsory self-incrimination.The aim of the Act is to provide treatment, not punishment, for persons deemed sexually dangerous. The fact that a person adjudged to be sexually dangerous may be committed to a maximum-security institution that also houses convicts in need of psychiatric care does not make such confinement amount to “punishment.” See also Kansas v. Hendricks, 521 U.S. 346, 117 S.Ct. 2072 (1997), where the U.S. Supreme Court upheld a Kansas law mandating civil detention of individuals who are both mentally ill and “sexually violent predators.” The statute defines a sexually violent predator as a person “who has been convicted of or charged with a sexually violent offense and who suffers from a mental abnormality or personality disorder which makes the person likely to engage in predatory acts of sexual violence.”

• In Re Winship, 397 U.S. 358 (1970). During a juvenile adjudicatory hearing, a Family Court judge found that

the defendant had stolen $112. The judge relied on a statutory provision that “any determination at the conclusion of [an adjudicatory] hearing that a juvenile did an act or acts must be based on a preponderance of the

• / 4