Criminal Procedure : Week of 29 January 2008

29 January 2008

• So a prosecutor would want to charge 3rd and fourth, because they have different elements. They're not generally included in one another.
• Why is this so peculiarly organized? It's uncomfortable to debate about, in the legislature. There are powerful lobbying groups trying to influence. There are hard questions, too: how much force is required to make a thing happen "by force?"
• State v. Pulizzano
  The evidence was excluded by the rape shield law. This prevented her from presenting a defense.

  It's hard to prosecute sexual abuse of children: the witness is by definition suspect.

• Note that there are a lot of times when the evidence wouldn't require penetration of the rape shield law. In Pulizzano, the interesting point is that the prosecution's theory of the case is that the only way the kid could have this sexual knowledge would be abuse by Pulizzano.
• Still, clearly the rape shield law cuts off access to some kinds of evidence, and conflicts with the right to present evidence.
• Note that there is a parallel rule: you can't introduce character evidence to prove behavior on a particular instance of fact. (i.e., reputations don't commit crimes).
• Relevance: does a piece of evidence make it more or less likely that an incident took place (i.e., was there consent?).
• Note the exclusions to the rape shield law, as well.
• Should the presumption be that rape-shield evidence will be included or excluded?
• The Estrich article: the possibility of something analogous to a negligence standard. It is more culpable to have proceeded if a reasonable person would have understood not to do so.
• LOST SOME NOTES DUE TO REBOOT
• Talk about degrees of force necessary: if force is required, doesn't this obligate a complainant to subject themselves to force (because just saying no is not enough)?

30 January 2008

• What is it you need to consent to under §940.225, in order to have given consent? Sexual intercourse or sexual contact. If I say "kiss me please, it really arouses me," that's consent to sexual contact. That is an agreement to "intercourse or contact." This is the kind of construction that people are trying to get rid of with statutory reform. Can the judge prevent a defense attorney from giving the language of the statute to the jury?
• Maybe the solution is a model instruction using the language of &939.22. But drafting a jury instruction this way is, in a sense, usurping the role of the legislature. Still, there are times when the model instruction departs a little from the way the law would be understood without the instruction.
• So what could/should happen if a lawyer asks to read the text of a statute to the jury? Could this confuse them?
• The student-drafted statute (p.33): based on the homicide statute. It tracks Estrich's article on mens rea and culpability. If there's no evidence of a lack of consent, and a lack of consent is required by the statute, you can't convict. But should there be an obligation on the sexual partner to say no? Does the strict liability nature of (4) produce the conversations between partners that we want? What if someone doesn't know how to say no (e.g. cultural pressures)? What is negligence doing in here? If we have these different degrees, doesn't it allow juries to convict (i.e., of a lesser included). Would this result in plea bargains where people admitted to crimes they didn't commit?
• As a matter of Constitutional law, if we're going to call someone a rapist, and punish them as such, we need to be able to define it (i.e., state must prove all elements of the crime BRD).
• Back on Berkowitz. A judge would be hard-pressed to say "no, you can't see the law," but what about the opinion in Bonds? Probably not, although that makes every 3rd degee a 2nd in a way. This concept of "only such force as is necessary" is highly problematic. Now in Jaworski, how much threatening was there, really? Only on the first occasion, but he gets 5 counts: were the counts different in fact? What does the prosecution have to prove.
• Statutory rape. If it's a bad thing, maybe we should punish everybody who is engaged in it. Why should it matter how old the defendant is? If the rationale is that one partner is unable (as a matter of law) to consent to intercourse, what does it matter if the defendant is 13 or 33? Doesn't this criminalize masturbation.

31 January 2008

• Statutory Rape: Let's say we work for the prosecutor. Where is our discretion? Where does it come from?
  • It can't be just based on whether the parties are mature enough to make good decisions: who would be? :)
  • Are we required to file any charges at all? The DA represents the people of the state of WI. The consensus is that underage sex is wrong, apparently. You can't represent someone if there's a conflict (e.g. religious conviction) that would materially affect the representation.

    In a way, the prosecutor even represents the defendant: that person is part of the state.

    Anyway, we need to decide how to use our power (i.e., discretion). We give prosecutors discretion because the facts are too variable to match a statute precisely. The statutes are too broad to give us clear guidance in all situation. We need someone to make an initial decision (which is ultimately a moral call) about whether or not *this* particular case should be prosecuted.

    Maybe the prosecutor has a fiduciary duty to the state that includes educating it about some issues (i.e., sometimes prosecuting even when most citizens would have let the issue go, in order to send a message).

  • Is there a deterrent effect here? Note that prosecutors might have an objective other than punishment.
  • Note that "unable to consent" is a legal fiction: obviously you can consent, but the state will not allow you to.
  • How do we resolve a situation where both parents are clamoring for prosecution against the other child? People get pretty riled up about these things.
  • One motivation for having a criminal justice system is to civilize the rest of us: making the state the monopoly controller of force as a means of redress keeps people from engaging in a cycle of vengeance. At least some.
• Now Williquette: would she be guilty under the current statute? §948.02(3). Lots of elements.