Criminal Law and Its Processes: Cases and Materials

Criminal Law and Its Processes: Cases and Materials

Description

In preparing this edition, our intention has been to maintain the basic structure and purposes of its predecessor, to preserve the leading cases that many teachers have found helpful in focusing successful class discussion, and at the same time to offer a fresh perspective by introducing new cases, along with many new Notes, Problems, and other contemporary material. As in prior editions, the emphasis is primarily upon the substantive criminal law. Why substantive criminal law? We conceive of a criminal law course as both serving the ends of both general legal education and training in the criminal law in particular. The chief value of the course as a part of a general legal education is to enlarge insight into and understanding of the potentialities and limitations of the law as an instrument of social control. We have in mind the variety of hard problems encountered in using the law for this purpose: the difficulty of giving legal form to the compromises made necessary when goals conflict; the creation of institutional arrangements—judicial and administrative—appropriate to the goals sought: the limitations—moral and practical—on the use of the law as a means of social control; the relation of legal controls to other social processes. We regard the study of the substantive criminal law as an unusually suitable introductions to these pervasive problems of the law. The ends criminal law serves involve social and human values of the highest order. Its means, entailing the imposition of brute force on the lives of individuals, are potentially the most destructive and abusive to be found within the legal system. The issues it raises and the setting in which it raises them are compelling and vivid. Its institutions are acutely controversial and often controverted. And one of its underlying themes is the momentous issue of the reconciliation of authority and the individual. As Professor Herbert Wechsler has written: “Whatever views one holds about the penal law, no one will question it importance in society. This is the law on which men place their ultimate reliance for protection against all the deepest injuries that human conduct can inflict on individuals and institutions. By the same token, penal law governs the strongest force that we permit official agencies to bring to bear on individuals. Its promise as an instruments of safety is matched only by its power to destroy. If penal law is weak or ineffective, basic human interests are in jeopardy. If it is harsh or arbitrary in its impact, it works a gross injustice on those caught within its toils. The law that carries such responsibilities should surely be as rational and just as law can be. Nowhere in the entire legal field is more at stake for the community or for the individual.” What of the course’s narrower purpose of training students in the criminal law in particular? Here there are two main pedagogic objectives. One is to furnish a solid foundation for those who will, in greater of lesser degree, participate directly in the processes of the criminal law. This foundation does not require mastery of the full range of technical skills and information held by the practicing criminal lawyer, judge or administrator, but rather the development of confidence in handling principles and rules—judge-made or statutory—through knowledge about the larger implications of doctrines and institutions of the criminal law. The second purpose is to create in law school graduates who will have little occasion to practice criminal law and understanding of the problems of the criminal law. As influential members of their communities—and more directly as judges, legislators, or teachers—lawyers versed in the principles of criminal law can bring an informed intelligence to the challenge of solving some of the most vexing problems of our times. Revisions for the fifth edition. In the procedural sections, we have substantially streamlined the materials. Those fundamental of criminal trial procedure that we consider essential for understanding the issues in substantive criminal law (rules of evidence, burden of proof, presumptions, and the role of the jury) remain, and they can now be covered in two to three classes, instead of the two to three weeks that were required to cover the procedure chapter of the prior edition. We believe that a brief but intensive treatment of this material at the outset of the course adds immeasurably to the student’s appreciation of the concrete setting in which substantive law issues arise and the practical considerations that so often influence those debates. Conversely, we have come to the conclusion, albeit reluctantly, that a full chapter on sentencing procedure is no longer feasible in a book devoted primarily to substantive criminal law. The body of doctrine in this area and the variety and complexity of statutory reforms now render this material worthy of a full course or seminar in its own right; adequate treatment in a 45 or 60 hour criminal law course has become impossible. Rather than attempt such a treatment, we have chosen to provide (in Chapter 2) a brief textual summary of the procedural issues and the current state of the sentencing reform movement. In the substantive sections we have updated the cases and added Notes and Problems dealing with many issues of current concern. For example, the subject of omissions is now treated in an enlarged subsection, to provide coverage of the subject as it arises in euthanasia and in other contemporary setting; complicity and the causation materials have been reconsidered and presented in a more readily understood organization; the Goetz case and the problem of the battered woman are used as the main vehicles for treating self-defense; the chapter on legal insanity has been entirely redone to reflect the revolutionary developments since the last edition; cases and materials on federal mail and wire fraud have been added to the theft chapter. We have made two important organizations changes, both designed to achieve a better integration of the teaching materials. In Chapter 2, the Justification of Punishment, we now begin with a number of specific cases, several of which had been broken out as a separate section in the prior edition. We believe the new organization, which we have used successfully in our own teaching, provides a more concrete grounding from which to explore philosophical and empirical questions that some students might otherwise find too abstract. In Chapter 7, Group Criminality, we have now integrated the material that formed the core of the separate Business Crimes chapter in the prior edition. Given inevitable time constraints, the new organization should help teachers to cover the essence of these increasingly important problems, which otherwise might have to be ignored altogether. As in previous editions, the substantive materials continue to focus on imparting an understanding of what is often called the “general part” of the criminal law—that is, those basic principles and doctrines that come into play across the range of specific offenses (for example, actus resus, mens rea, and the various justifications and excuses). We believe that mastery of the detailed elements of many particular crimes is a goal that is inappropriate for a basic criminal law course. Nevertheless, we have found that understanding of the basic principles in enhanced by testing their applications and interactions in the context of particular offenses. Accordingly, we examine in detail three offense categories: rape (Chapter 4), homicide (Chapter 5), and theft (Chapter 9). The chapter on rape provides an opportunity to focus on the definitional elements of a major crime in a context that has become the focus of acute controversy because of changing perceptions and changing social values. The theme of the homicide chapter is the task of legislative grading of punishment in a particularly challenging area. The theft chapter explores the significance of history and the continued impact of old doctrinal categories on the resolution of thoroughly modern difficulties in defining the boundaries of the criminal law. Uses of the materials in diverse teaching formats. Over the past decade, law schools have begun experimenting with a variety of formats for the basic criminal law course. Although the year-long five- or six-hour course remains common, some schools offer criminal law as a four- or even three-hour course, and some schedule the course in the second semester or even in the second or third years. Under these circumstances, a short book designed to be taught straight through, without adjustments or deletions, is bound to prove unsatisfactory for many users. In preparing the fifth edition we have sought to organize and edit the materials tightly enough to avoid significant surplusage for the average course, but we have not attempted to preempt all possible judgments about inclusion and exclusion. Rather, we thought it essential to preserve some freedom for teachers to select topics that accord with their own interests and with the curricular arrangements at their own schools. Thus, we have aspired to create a flexible teaching tool, one that reflects the rich diversity of the subject. For the five- or six-hour, year-long course, the book can be taught straight through, perhaps with some minor deletions. For a four-hour course, and especially in the case of a three-hour course, substantial omissions will be necessary. Many teachers will have their own preferences, of course. We present here our own thoughts, based on our experience in structuring the material for use in shorter courses, both in the first semester and in the second and third years. Chapter 1 (How Guilt is Established). Part A of this chapter (The Structure of the Criminal Justice System) consists of textual material that lends itself either to class discussion or to reading outside of class. In a shorter course it should be assigned as background reading, and the first class can being with a discussion of the material in Part B (The Process of Proof). In schools that require a criminal procedure course before the study of criminal law, Part B of chapter 1 can be largely omitted. It may be appropriate, however, to take up Section B3 (proof beyond a reasonable doubt). For students taking criminal law in the first semester of their first year, Part B of Chapter 1 provides basic grounding in process. The Teacher who is unable to cover the entire Part can consider assigning Section B1 (overview), and Sections B2 (evidence) and B3 (assigning the burden-of-proof materials but omitting the material on presumptions). We believe that this material, which can be covered in roughly two or three classes, provides a solid foundations for the subsequent study of substantive law. Teachers who skip Section B5 (role of counsel) at the beginning of the course may wish to return to it later. This material raises provocative issues of pervasive importance for the study and practice of law; its themes can provide an appropriate and effective concluding topic for the course. Chapter 2 (The Justification of Punishment) is basic to the substantive part of the course. Part A (Why Punish?) presents material that many teachers will with to discuss directly and in depth in class. Others have found it preferable, either because of time pressure or pedagogical taste, to deal with the purposes of punishment in the context of particular substantive subjects, such as mens rea, actus reus, causation, attempt, justification or excuse. Part B (What to Punish?) raises basic problems that can be examined usefully either at this point or toward the end of the course. Chapters 3 (Elements of Just Punishment), 5 (Homicide), 6 (Harm), 7 (Group Criminality), and 8 (Justification and Excuse) will constitute the core of the typical substantive criminal law course, and, generally, teachers will want to cover them in depth. Chapter 4 (Rape) is important in its own right and as a complement to the materials on mens rea. It can be studied immediately after the mistake-of-fact cases in Chapter 3 or after all of Chapter 3 has been completed. Part C of the chapter on rape (problems of proof) can be used to pursue in more detail the themes studied in Chapter 1, or it can be used to introduce those themes when time does not permit full consideration of Chapter 1. Chapter 9 (Theft) pursues the general themes of the course in the context of a specific crime heavily influenced by historical tradition and by the common law method. In the typical three-hour course, either this chapter or a substantial segment of other material (such as conspiracy) often has to be omitted. In a four-hour course, a detailed treatment of this chapter affords an occasion to explore the problems of defining actus reus and mens rea and determining the appropriate reach of criminalization in a setting of continuing practical importance.

Publication Date

1989

Edition

5

Criminal Law and Its Processes: Cases and Materials

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