General Criminal Law Principles:
Principles of Punishment
Keyed to ELLEN S. PODGOR, PETER HENNING, ANDREW E.
TASLITZ, AND ALFREDO GARCIA., CRIMINAL LAW: CONCEPTS AND
PRACTICE (CAROLINA ACADEMIC PRESS 2ND 2009).
Topics Discussed
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Difference between civil and criminal conduct
Theories of punishment
Process of criminal prosecution
The Basis for Appeal
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 → society’s retributive needs, general and specific
deterrence, education, rehabilitation, isolation; addresses
community’s sense (and reality) of safety of persons and
property→ resulting in incarceration, fines, probation, parole.
•Theories of Punishment: crim law & punishment serves thesadde competing theories (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:
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Deterrence
Rehabilitation
Isolation
Education
Retribution
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.
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.
Isolation
• This theory advocates isolating wrongdoers from
law-abiding persons.
• Also known as incapacitation.
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.
Retribution
Communicative Retribution:
 Right-deprivations help to define the
Generally
fundamental equal worth of all human
beings. When someone denies another
• Under retribution, the goal is
a right, they are treating that other
to ensure that the individual
person as if they are worth less, thus a
gets what he or she deserves.
society wants to send a signal that the
• There is a difference between society values the individual as equal to
all others.
vengeance and retribution.
 Vengeance → individual
 Communicative retribution also looks
retribution
to groups that may suffer stigma (harm
 Retribution → societal
to perceptions of group worth) from
retribution
individual crimes, for example, racial
or ethnic or religious groups.
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Page 6
The Process of Criminal Prosecution
Investigation
Charge
Pre-trial Motion
Trial
Plea Bargain
Jury Instruction
Motion for a Judgment of Acquittal
Sentencing
Appeal
Post Conviction Relief
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.
• See page 49
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
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)
Plea Bargain
The government and the ∆--through counsel—can 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.
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.
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.