CRIMINAL LAW— CLASS 1: READING ASSIGNMENT & EXCERPTS 2021 PROF. MARY KREINER RAMIREZ
Welcome to Criminal Law! This first class assignment has four parts. After parts B, C, and D, you should answer the questions provided below and submit your responses to the Assignment link for Class 1, at my D2L course site no later than 9:00 pm, Monday, August 30. The Assignment link will be available at D2L, starting Thursday, August 26. You may link to the assignment from the opening page under the “Calendar” block, or by clicking on dropdown menu under the “Assessments” tab. If you have questions about accessing or using D2L, the link to D2l is the best starting point: https://d2l.washburn.edu/ This home page tells users how to sign in, and then the landing page after signing in has a header called “Online Student Resource Center” with lots of tutorials.
A. Foundation Principles of the American Criminal Justice System
Read pages 1-8 from the course text, DRESSLER & GARVEY, CASES AND MATERIALS ON CRIMINAL LAW, Eighth edition, Thompson West (2019).
Below are two case excerpts, In re Winship and Sandstrom v. Montana. Please read both case excerpts and answer questions assigned regarding these cases. After you have completed the questions, prepare for the in-class Activity: Instructing the Jury on Reasonable Doubt. Prior to class, you will be required to enter the best choice and worst choice as described in the assignment; for the in-class discussion you should note key language influencing your analysis. (See pp.8-9 below for more detailed instructions.)
Note: In re Winship and Sandstrom v. Montana case excerpts are derived from Arnold H. Loewy, Criminal Law: Cases and Materials (3rd ed. 2009)(Lexis/Nexis).
In re Winship, 397 U.S. 358 (1970)
Mr. Justice BRENNAN delivered the opinion of the Court.
This case presents the single, narrow question whether proof beyond a reasonable doubt is among the “essentials” of due process and fair treatment” required during the adjudicatory stage when a juvenile is charged with an act which would constitute a crime if committed by an adult.
Section 712 of the New York Family Court Act defines a juvenile delinquent as “a person over seven and less than sixteen years of age who does any act which, if done by an adult, would constitute a crime.” During a 1967 adjudicatory hearing, conducted pursuant to § 742 of the Act, a judge in New York Family Court found that appellant, then a 12-yearold boy, had entered a locker and stolen $112 from a woman’s pocketbook. The petition which charged appellant with delinquency alleged that his act, “if done by an adult, would constitute the crime or crimes of Larceny.” The judge acknowledged that the proof might not establish guilt beyond a reasonable doubt, but rejected appellant’s contention that such proof was required by the Fourteenth
1
Amendment. The judge relied instead on § 744(b) of the New York Family Court Act which provides that “(a)ny determination at the conclusion of (an adjudicatory) hearing that a (juvenile) did an act or acts must be based on a preponderance of the evidence.”
The requirement that guilt of a criminal charge be established by proof beyond a reasonable doubt dates at least from our early years as a Nation. The “demand for a higher degree of persuasion in criminal cases was recurrently expressed from ancient times, (though) its crystallization into the formula ‘beyond a reasonable doubt’ seems to have occurred as late as 1798. It is now accepted in common law jurisdictions as the measure of persuasion by which the prosecution must convince the trier of all the essential elements of guilt.” Although virtually unanimous adherence to the reasonable-doubt standard in common-law jurisdictions may not conclusively establish it as a requirement of due process, such adherence does “reflect a profound judgment about the way in which law should be enforced and justice administered.”
The reasonable-doubt standard plays a vital role in the American scheme of criminal procedure. It is a prime instrument for reducing the risk of convictions resting on factual error. The standard provides concrete substance for the presumption of innocence—that bedrock “axiomatic and elementary” principle whose “enforcement lies at the foundation of the administration of our criminal law.” Coffin v. United States, supra, 156 U.S. at 453, 15 S. Ct. at 403. As the dissenters in the New York Court of Appeals observed, and we agree, “a person accused of a crime . . . would be at a severe disadvantage, a disadvantage amounting to a lack of fundamental fairness, if he could be adjudged guilty and imprisoned for years on the strength of the same evidence as would suffice in a civil case.”
The requirement of proof beyond a reasonable doubt has this vital role in our criminal procedure for cogent reasons. The accused during a criminal prosecution has at stake interest of immense importance, both because of the possibility that he may lose his liberty upon conviction and because of the certainty that he would be stigmatized by the conviction. Accordingly, a society that values the good name and freedom of every individual should not condemn a man for commission of a crime when there is reasonable doubt about his guilt. As we said in Speiser v. Randall, supra, 357 U.S. at 525-526; “There is always in litigation a margin of error, representing error in factfinding, which both parties must take into account. Where one party has at stake an interest of transcending value—as a criminal defendant his liberty—this margin of error is reduced as to him by the process of placing on the other party the burden of . . . persuading the factfinder at the conclusion of the trial of his guilt beyond a reasonable doubt. Due process commands that no man shall lose his liberty unless the Government has borne the burden of . . . convincing the factfinder of his guilt.” To this end, the reasonable-doubt standard is indispensable, for it “impresses on the trier of fact the necessity of reaching a subjective state of certitude of the facts in issue.”
Moreover, use of the reasonable-doubt standard is indispensible to command the respect and confidence of the community in applications of the criminal law. It is critical that the moral force of the criminal law not be diluted by a standard of proof that leaves people in doubt whether innocent men are being condemned. It is also
2
important in our free society that every individual going about his ordinary affairs have confidence that his government cannot adjudge him guilty of a criminal offense without convincing a proper factfinder of his guilt with utmost certainty.
Lest there remain any doubt about the constitutional stature of the reasonable- doubt standard, we explicitly hold that the Due Process Clause protects the accused against conviction except upon proof beyond a reasonable doubt of every fact necessary to constitute the crime with which he is charged.
Reversed.
Mr. Justice HARLAN, concurring.
Professor Wigmore, in discussing the various attempts by courts to define how convinced one must be to be convinced beyond a reasonable doubt, wryly observed: “The truth is that no one has yet invented or discovered a mode of measurement for the intensity of human belief. Hence there can be yet no successful method of communicating intelligibly . . . a sound method of self analysis for one’s belief,” 9 J. WIGMORE, EVIDENCE 325 (3d ed. 1940).
Notwithstanding Professor Wigmore’s skepticism, we have before us a case where the choice of the standard of proof has made a difference: the juvenile court judge below forthrightly acknowledged that he believed by a preponderance of the evidence, but was not convinced beyond a reasonable doubt, that appellant stole $112 from the complaint’s pocketbook. Moreover, even though the labels used for alternative standards of proof are vague and not a very sure guide to decisionmaking, the choice of the standard for a particular variety of adjudication does, I think, reflect a very fundamental assessment of the comparative social costs of erroneous factual determinations.
To explain why I think this so, I begin by stating two propositions, neither of which I believe can be fairly disputed. First, in a judicial proceeding in which there is a dispute about the facts of some earlier event, the factfinder cannot acquire unassailably accurate knowledge of what happened. Instead, all the fact-finder can acquire is a belief of what probably happened. The intensity of this belief—the degree to which a factfinder is convinced that a given act actually occurred—can, of course, vary. In this regard, a standard of proof represents an attempt to instruct the fact-finder concerning the degree of confidence our society thinks he should have in the correctness of factual conclusions for a particular type of adjudication. Although the phrases “preponderance of the evidence” and “proof beyond a reasonable doubt” are quantitively imprecise, they do communicate to the finder of fact different notions concerning the degree of confidence he is expected to have in the correctness of his factual conclusions.
A second proposition, which is really nothing more than a corollary of the first, is that the trier of fact will sometimes, despite his best efforts, be wrong in his factual conclusions. In a lawsuit between two parties, a factual error can make a difference in one of two ways. First, it can result in a judgment in favor of the plaintiff when the true
3
facts warrant a judgment for the defendant. The analogue in a criminal case would be the conviction of an innocent man. On the other hand, an erroneous factual determination can result in a judgment for the defendant when the true facts justify a judgment in plaintiff’s favor. The criminal analogue would be the acquittal of a guilty man.
The standard of proof influences the relative frequency of these two types of erroneous outcomes. If, for example, the standard of proof for a criminal trial were a preponderance of the evidence rather than proof beyond a reasonable doubt, there would be a smaller risk of factual errors that result in freeing guilty persons, but a far greater risk of factual errors that result in convicting the innocent. Because the standard of proof affects the comparative frequency of these two types of erroneous outcomes, the choice of the standard to be applied in a particular kind of litigation should, in a rational world, reflect an assessment of the comparative social disutility of each.
When one makes such an assessment, the reason for different standards of proof in civil as opposed to criminal litigation becomes apparent. In a civil suit between two private parties for money damages, for example, we view it as no more serious in general for there to be an erroneous verdict in the defendant’s favor than for there to be an erroneous verdict in the plaintiff’s favor. A preponderance of the evidence standard therefore seems peculiarly appropriate for, as explained most sensibly, it simply requires the trier of fact “to believe that the existence of a fact is more probable than its nonexistence before (he) may find in favor of the party who has the burden to persuade the (judge) of the fact’s existence.”
In a criminal case, on the other hand, we do not view the social disutility of convicting an innocent man as equivalent to the disutility of acquitting someone who is guilty. In this context, I view the requirement of proof beyond a reasonable doubt in a criminal case as bottomed on a fundamental value determination of our society that it is far worse to convict an innocent man than to let a guilty man go free. It is only because of the nearly complete and long-standing acceptance of the reasonable-doubt standard by the States in criminal trials that the Court has not before today had to hold explicitly that due process, as an expression of fundamental procedural fairness, requires a more stringent standard for criminal trials than for ordinary civil litigation.
Questions for In re Winship: (submit responses to questions 1‐3 on D2L)
1. What do we mean by the “presumption of innocence?” Aren’t most people who have been indicted and brought to trial probably guilty?
2. The Supreme Court holds that the standard of review applicable to finding guilt in criminal cases, requiring proof beyond a reasonable doubt on every element of the crime, to be of a “constitutional stature.” What is the constitutional source?
3. Isn’t requiring proof beyond a reasonable doubt calculated to maximize error in that it requires a jury that believes the defendant to be probably guilty to return a verdict of not guilty?
4
Consider this question for class discussion: “The story is told of a Chinese law professor, who listened as a British lawyer explained that Britons were so enlightened that they believed it was better that ninety-nine guilty men go free than that one innocent man be executed. The Chinese professor thought for a second and asked, “Better for whom?” Alexander Volokh, Guilty Men, 146 U. Pa. L. Rev. 173, 211 (1997). Who benefits from the “beyond a reasonable doubt” rule? The accused? Society? The ordinary person who has never committed a crime? How might the ordinary person benefit?
Once one determines that the state must prove every element of a crime beyond a reasonable doubt, the question becomes: “What constitutes an element of a crime?”
C. Presumptions
Sandstrom v. Montana, 442 U.S. 510 (1979)
Mr. Justice BRENNAN delivered the opinion of the Court.
The question presented is whether, in a case in which intent is an element of the crime charged, the jury instruction, “the law presumes that a person intends the ordinary consequences of his voluntary acts,” violates the Fourteenth Amendment’s requirement that the State prove every element of a criminal offense beyond a reasonable doubt.
On November 22, 1976, 18-year-old David Sandstrom confessed to the slaying of Annie Jessen. Based upon the confession and corroborating evidence, petitioner was charged on December 2 with “deliberate homicide,” in that he “purposely or knowingly caused the death of Annie Jessen.” At trial, Sandstrom’s attorney informed the jury that, although his client admitted killing Jessen, he did not do so “purposely or knowingly,” and was therefore not guilty of “deliberate homicide” but of a lesser crime. The basic support for this contention was the testimony of two court- appointed mental health experts, each of whom described for the jury petitioner’s mental state at the time of the incident. Sandstrom’s attorney argued that this testimony demonstrated that petitioner, due to a personality disorder aggravated by alcohol consumption, did not kill Annie Jessen “purposely or knowingly.”
The prosecution requested the trial judge to instruct the jury that “[t]he law presumes that a person intends the ordinary consequences of his voluntary acts.” Petitioner’s counsel objected, arguing that “the instruction has the effect of shifting the burden of proof on the issue of” purpose or knowledge to the defense, and that “that is impermissible under the Federal Constitution, due process of law.” He offered to provide a number of federal decisions in support of the objection, including this Court’s holding in Mullaney, but was told by the judge: “You can give those to the Supreme Court. The objection is overruled.” The instruction was delivered, the jury found petitioner guilty of deliberate homicide, and petitioner was sentenced to 100 years in prison.
5
Sandstrom appealed to the Supreme Court of Montana, again contending that the instruction shifted to the defendant the burden of disproving an element of the crime charged, in violation of Mullaney, Winship, and Patterson. The Montana court conceded that these cases did prohibit shifting the burden of proof to the defendant by means of a presumption, but held that the cases “do not prohibit allocation of some burden of proof to a defendant under certain circumstances.” Since in the court’s view, “[d]efendant’s sole burden under [the] instruction was to produce some evidence that he did not intend the ordinary consequences of his voluntary acts, not to disprove that he acted ‘purposely’ or ‘knowingly,’ . . . the instruction does not violate due process standards as defined by the United States or Montana Constitution . . ..” (Emphasis added.)
The threshold inquiry in ascertaining the constitutional analysis applicable to this kind of jury instruction is to determine the nature of the presumption it describes. That determination requires careful attention to the words actually spoken to the jury, for whether a defendant has been accorded his constitutional rights depends upon the way in which a reasonable juror could have interpreted the instruction.
Respondent argues, first that the instruction merely described a permissive inference—that is, it allowed but did not require the jury to draw conclusions about defendant’s intent from his actions—and that such inferences are constitutional. These arguments need not detain us long, for even respondent admits that “it’s possible” that the jury believed they were required to apply the presumption. Sandstrom’s jurors were told that “[t]he law presumes that person intends the ordinary consequences of his voluntary acts.” They were not told that they had a choice, or that they might infer that conclusion; they were told only that the law presumed it. It is clear that a reasonable juror could easily have viewed such an instruction as mandatory.
In the alternative, respondent urges that, even if viewed as a mandatory presumption rather than as a permissive inference, the presumption did not conclusively establish intent but rather could be rebutted. On this view, the instruction required the jury, if satisfied as to the facts which trigger the presumption, to find intent unless the defendant offered evidence to the contrary. Moreover, according to the State, all the defendant had to do to rebut the presumption was produce “some” contrary evidence; he did not have to “prove” that he lacked the required mental state. Thus, “[a]t most, it placed a burden of production on the petitioner,” but “did not shift to petitioner the burden of persuasion with respect to any element of the offense . . ..” Again, respondent contends that presumptions with this limited effect pass constitutional muster.
We need not review respondent’s constitutional argument on this point either, however, for we reject this characterization of the presumption as well. Respondent concedes there is a “risk” that the jury, once having found petitioner’s act voluntary, would interpret the instruction as automatically directing a finding of intent. Petitioner’s jury was told that “[t]he law presumes that a person intends the ordinary consequences of his voluntary acts.” They were not told that the presumption could be rebutted, as the Montana Supreme Court held, by the defendant’s simple
6
presentation of “some” evidence, nor even that it could be rebutted at all. Given the common definition of “presume” as “to suppose to be true without proof,” WEBSTER’S NEW COLLEGIATE DICTIONARY 911 (1974), and given the lack of qualifying instructions as to the legal effect of the presumption, we cannot discount the possibility that the jury may have interpreted the instruction in either of two more stringent ways.
First, a reasonable jury could well have interpreted the presumption as “conclusive,” that is, not technically as a presumption at all, but rather as an irrebuttable direction by the court to find intent once convinced of the facts triggering the presumption. Alternatively, the jury may have interpreted the instruction as a direction to find intent upon proof of the defendant’s voluntary actions (and their “ordinary” consequences), unless the defendant proved the contrary by some quantum of proof which may well have been considerably greater than “some” evidence—thus effectively shifting the burden of persuasion on the element of intent. Numerous federal and state courts have warned that instructions of the type given here can be interpreted in just these ways.
We do not reject the possibility that some jurors may have interpreted the challenged instruction as permissive, or, if mandatory, as requiring only that the defendant come forward with “some” evidence in rebuttal. However, the fact that a reasonable juror could have given the presumption conclusive or persuasion-shifting effect means that we cannot discount the possibility that Sandstrom’s jurors actually did proceed upon one or the other of these latter interpretations. Because David Sandstrom’s jury may have interpreted the judge’s instruction as constituting either a burden-shifting presumption like that in Mullaney, or a conclusive presumption, and because either interpretation would have deprived defendant of his right to the due process of law, we hold the instruction given in this case unconstitutional.
Questions for Sandstrom v. Montana: (submit responses to questions 4‐7 on D2L)
4. If you had been the prosecutor, would you have encouraged the trial judge to give the presumption? Why? Why not?
5. Why do you suppose that the trial judge was not more receptive to Supreme Court constitutional decisions?
6. What is the difference between a conclusive presumption, a mandatory presumption, and a permissive inference?
7. Would a permissible inference have been allowed in this case? Why? Why not?
7
Exercise: Instructing the Jury on Reasonable Doubt
In class, we will consider the perspectives of four groups: Prosecutors; Defendants; Victims; and Jurors.
In preparation for this exercise, review the 4 sets of jury instructions below (from casebook, Note 4, pp.11-13). Identify the following: ‣ The most helpful/best jury instruction for each group; ‣ The least helpful/worst instruction for each group; ‣ Enter your preferences in the online D2L “Instructing the Jury” assignment dropbox no later than Monday, August 30, by 9:00 pm. ‣ Be prepared to explain your choices in class, noting and identifying key language that influenced your choice.
The “Moral Certainty” Instruction [Reasonable doubt] is not merely possible doubt; because every thing relating to human affairs, and depending on moral evidence, is open to some possible or imaginary doubt. It is that state of the case, which, after the entire comparison and consideration of all the evidence, leaves the minds of jurors in that condition that they cannot say they feel an abiding conviction, to a moral certainty, of the truth of the charge. (Based on Commonwealth v. Webster, 59 Mass. (5 Cush.) 295 (1850).)
The “Firmly Convinced” Instruction The state has the burden of proving the defendant guilty beyond a reasonable doubt. In civil cases, it is only necessary to prove that a fact is more likely true than not or that its truth is highly probable. In criminal cases such as this, the State’s proof must be more powerful than that. It must be beyond a reasonable doubt. Proof beyond a reasonable doubt is proof that leaves you firmly convinced of the defendant’s guilt. There are very few things in this world that we know with absolute certainty, and in criminal cases the law does not require proof that overcomes every doubt. If, based on your consideration of the evidence, you are firmly convinced that the defendant is guilty of the crime charged, you must find him/her guilty. If, on the other hand, you think there is a real possibility that he/she is not guilty, you must give him/her the benefit of the doubt and find him/her not guilty. (State v. Portillo, 182, Ariz. 592, 898 P .2d 970 (1995) [based on Federal Judicial Center, Pattern Criminal Jury Instructions 17-18 (Instruction 21) (1987)].)
The “No Waver or Vacillation” Instruction A reasonable doubt is not a mere possible doubt, a speculative, imaginary or forced doubt. Such a doubt must not influence you to return a verdict of not guilty if you have an abiding conviction of guilt. On the other hand, if, after carefully considering, comparing and weighing all the evidence, there is not an abiding conviction of guilt, or, if, having a conviction, it is one which is not stable but one which vacillates, then the charge is not proved beyond every reasonable doubt and you must find the defendant not guilty because the doubt is reasonable. (Standard Jury Instructions in Criminal Cases (97-1), 697 So.2d 84 (Fla.1997).)
8
The “No Real Doubt” Instruction It is the Government that has the burden of proving a defendant guilty beyond a reasonable doubt. If it fails to do so, you must, under your oath, find the defendant not guilty. But while the Government’s burden of proof is a strict or heavy burden, it is not necessary that the defendant’s guilt be proved beyond all possible doubt. The law does not require mathematical certainty, because that is generally impossible. What is required is that the Government’s proof exclude any reasonable doubt concerning the defendant’s guilt. A reasonable doubt is just precisely what it says. It is a real doubt based upon reason and common sense after a careful and impartial consideration of all of the evidence in the case. Proof beyond a reasonable doubt, stated a little bit differently, is proof of such a convincing character that you would be willing to rely and act upon it without hesitation in the most important of your own affairs. (United States v. Daniels, 986 F.2d 451, opinion withdrawn and superseded in part on rehearing, 5 F.3d 495 (11th Cir.1993).)
BEST instruction for Prosecution Defense Victim Juror Moral Certainty Firmly Convinced No Waiver or Vacillation No Real Doubt
WORST instruction for Prosecution Defense Victim Juror Moral Certainty Firmly Convinced No Waiver or Vacillation No Real Doubt
D. Enforcing the Presumption of Innocence
Read Owens v. State, pp. 13-19. in DRESSLER & GARVEY, CRIMINAL LAW CASES AND MATERIALS (Eighth edition 2019) (West Academic Publishing).
Answer the following questions 8-9 and submit to D2L Assignment Dropbox for Class 1:
8. If you had been a juror hearing this case, would you have voted to convict? In other words, did the prosecution meet its burden of proof at trial?
9. Did the appellate court properly decide the case on appeal?
End of Class 1 Assignments
9