Reading Notes

Nature, Sources, Limits, and Aims of Criminal Law

Criminal law is much more confusing than I though it would be. The chapter opens by addressing the same questions I have about Criminal law. Namely, “how is it different than torts?” “what makes a crime a crime?”

We read an exerpt from Henry M. Hart, Jr. discussing the aims of criminal law. Here, he says that criminal law is not just what the legislature says it is, or how the courts define it. Instead, what separates criminal law from other forms of law is how the community treats those who have committed “criminal” acts. For, community members create a physical hardship for the offender because of the “hatred, fear, or contempt” of the act.

Moving past the excerpt, we learned about the history of criminal law. It started with common law and much of the criminal codes were adopted in the United States. Eventually the legislature drafted it into law, even though the courts still had a tremendous task of interpreting the codes. Because the courts had to fill in the gaps of legislatures, certain judges, lawyers, and law professors developed the Model Penal Code which has been largely adopted by most legislatures and used to fill in any gaps.

Procedure: Pre-Trial

This section is best summed up by the concluding paragraph:

Thus, in short, many crimes go unreported, many reported crimes do not result in arrest, and where arrests occur, the great majority of prosecutions are disposed of prior to trial, largely by guilty pleas.

This section also shows how the pretrial works, if I case does make it to trial though. First, a crime needs to be reported then investigated. Then an arrest must be made based on evidence. Finally, charges should be presented (by the means outlined in the courts) before either accepting a plea deal or going to trial.

Procedure: Trial by Jury

There are a few big takeaways from this section which I will present below:

  • Juries are provided for non-petty offenses (crimes where the punishment is more than 6-months incarceration)
  • 12 jurors are on a jury in the federal system and most states follow that standard
  • The lowest number of jurors a trial can have is 6
  • Jurors can be excluded from trial upon “void dire” (for cause) examination. Other factors may cause a juror to be dismissed. However, race and gender cannot be reasons for dismissal.

Proof of Guilt at Trial

Proof beyond a reasonable doubt

Because the standard is a presumption of innocence, the prosecution must provide evidence that the jury feels they can enter a verdict “beyond a reasonable doubt.”

The purpose of proving a case beyond a reasonable doubt instead of based only the facts of the case gives the innocent man a chance to go free. The thought experiment we are asked to conduct is “if it is better that one guilty man go free than an innocent man be executed.” If you use a fact only standard, you would catch all the bad guys, but quite possibly catch innocent individuals. This standard is to help minimize the risk to the innocent, believing the risk to be worth it.

So, what is reasonable doubt? It is important to note that reasonable doubt is qualitative, not quantitative. You can’t stick a number to it (i.e. “Beyond reasonable doubt is a 7.5 on a scale of 1-10 about certainty”). Instead, think about it as it is. “If you have a reasonable doubt about the guilt of the individual, then presume that individual is innocent”.

There are several ways judges provide instruction to juries about reasonable doubt including:

  • The Moral Certainty Instruction
  • Firmly Convinced
  • No Waver or Vacillation
  • The no real doubt instruction

Presumption of innocence

Owens v. State

Court of Special Appeals of Maryland, 1992. 93 Md.App. 162, 611 A.2d 1043.


Owens is the defendant while the state is the prosecutor.


Is circumstantial evidence enough to provide a conviction?


“A conviction upon circumstantial evidence alone is not to be sustained unless:”

  1. The circumstances are inconsistent with a hypothesis of innocence.

In other words, the circumstances make it unreasonable that innocence is likely.


Affirm, the evidence here shows the defendant was guilty of drinking and driving.


Upon receiving a complaint of a suspicious car, police showed up and found Owens intoxicated and unconscious in a running vehicle with the lights on. He was arrested for drinking while driving. Owens disagreed stating that there wasn’t enough evidence to convict him of drinking and driving.


There are two possible inferences. 1. He had either pulled into the driveway while drinking and driving (a crime), or 2. he had just gotten into the car but stopped before he could commit the act (innocent).

Because these two positions are at odds the court needs to look for further circumstantial evidence to act as a tie breaker. The review whether it was his house or not that he was parked at (no address was provided in evidence). So, they look at the beer cans arguing that they would likely have been drunk at the end rather than the beginning of the journey (One doesn’t take several empty and partially empty cans with them to the car). Additionally, the complaint indicates that the defendant was driving suspiciously to solicit the complaint.

Here, the analysis overwhelms a reasonable hypothesis for innocence, so the court finds Owens guilty.

Additional Notes Notes

What we will cover

  • Basic underlying principles of criminal law
  • “Building Blocks” of criminal liability: acts reps & mens rea
  • Specific Crimes: Homicide and Rape/Sexual Assault
  • Defenses: Justifications/Excuses, Self-defense, etc.
  • Inchoate Crimes: Conspiracy, Attempt, etc.

We will cover three overarching themes for this course:

  1. We will look at how policy and applications create legal rules
  2. We will look at how criminal law mythology is developed (what must be shown for someone to be guilty). This focuses a lot on statutory interpretation.
  3. Comparing the common law to the Model Penal Code

What we will not cover

  • Criminal procedure: Arrest, searches, trial
  • Federal vs. State Law: Too specific
  • Trial Practice: We will only focus on criminal substance during this course

NOTE: We will spend most of our focus and energy on Legal Analysis. That is, how those legal decisions were made

Aims of Criminal Law

Hart gives five characteristics of criminal law:

  1. Given commands
  2. Commands bind subjects
  3. Subjects have consequences for disobedience
  4. Community condemnation
  5. Not a threat, but punishment enforced

For a statute to be considered a law, there must be 4 features

  1. A person must be aware of the existence of the law
  2. Must know the facts that make situation applicable to the law
  3. Person must babe able to comply with the law
  4. Person must be willing to comply with the law

History of Criminal law

Just like the other forms of law, criminal law came from English common law. There were no statutes in England to enforce the law, just common law. However, when it came to the United States, English common law became codified in the United States.

Additionally, the Constitution provides a broad overview of how criminal statues were developed. Courts are there to interpret the law. Interestingly, interpreting the law is called making a law. Finally, legislatures write and pass statutes about criminal issues. These may include rules for how long people should be punished for a “crime”

Beyond a reasonable doubt

Most criminal law statutes are comprised of elements. The reason for having the beyond a reasonable doubt standard is moral. It is immoral to imprison an innocent person than to let a guilty person go free. So, you need to have a “near certainty” that the person is guilty of the crime being accused.

Reasonable Doubt Instructions

There was a study that used the same facts of the case but read different instructions to 8 juries. Below are the numbers of juries out of 8 that would acquit the defendant.

Moral Certainty – 4

Firmly Convinced – 8

No Wave or Vacillation – 3

No Real Doubt – 3

During trial, the jury (or judge if those rights are waived) uses the reasonable doubt standard. During Appellate review though, the use of reasonable doubt is not used. Instead, they use the rational jury standard. This means that if a rational jury can find them guilty, then the standard is to find the defendant guilty.

Additionally, the prosecutor does not need to eliminate every “far-fetched” doubt, because the jury does not use a far-fetched doubt for the verdict.


The content contained in this article may contain inaccuracies and is not intended to reflect the opinions, views, beliefs, or practices of any academic professor or publication. Instead, this content is a reflection on the author’s understanding of the law and legal practices.

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