Law

Question One 
Whether convicted criminals, who wish to prove their innocence, even after they have exhausted their state and federal appeals, should be entitled to a hearing at which they can present evidence of their innocence.
It is a universally accepted legal premise that the best possible evidence must be presented at the first opportunity, and if there is a failure to do so, Courts will not permit such presentation at a later stage, except under certain special circumstances. Such an exception can be made for instance, if the accused (and presently convicted) demands a retrial because his trial was tainted by mala-fide or if he alleges that his constitutional right of due process (under the Fifth and Fourteenth Amendments of the U.S.Constitution) was denied to him. Under this doctrine of due process (and as has been held in a number of celebrated cases, like for example in Brady v. Maryland, 373 U.S. 83), one of the many constitutional safeguards guaranteed to a person accused of a crime is to have his defense examine all evidence presented by the prosecution, so that he may offer a satisfactory explanation.

Following from the above, it is only proper that the defense ought to be granted access to all DNA samples and test results that the prosecution intends to use as evidence against the accused. Quite commendably, many States have done well to keep apace of the latest developments in forensic science and have laws to regulate post-conviction DNA testing. But it is also a fact that most laws of this kind are unmistakably stringent and this has led to an increasing number of cases where innocent persons have been convicted and are languishing in prison simply because certain strict conditions have not been satisfied. Indeed as recently as June 2009, the U.S. Supreme Court, by a 54 majority, categorically stated that prisoners have no constitutional right to DNA testing that might prove their innocence (District Attorneys Office for the Third Judicial District et al. v. Osborne). This case came up from Alaska (which has not enacted a post-conviction DNA testing law) and the Court stated that the convicted could not request one to be performed as a matter of right. Not surprisingly, the dissenting opinion was in sharp contrast to the majority, and led by Justice Stevens, remarked on the patent inadequacy of the procedural protection under Alaskan State law.

Despite its significance, it would not be wise to extrapolate or even consider the judgment laid down in Osborne as a general rule of criminal procedural law. One reason for this is that, as the facts of the case suggest, the convicted had earlier, during the course of his main trial, not pursued a different DNA testing technique (because it was too discriminatory) and hence, the Court, in my humble opinion, was right in disallowing a new post-conviction DNA testing petition at a later stage. However, keeping aside this factual detail, it is pertinent to question whether any exculpatory evidence should be allowed by a court at a post-conviction stage, after it had not been presented before the State and the Federal courts. Most State jurisdictions (including Alaska) have followed the basic tenets of natural justice on this point and statutorily permit those who can prove their innocence by virtue of newly-acquired evidence, a right to seek the vacation of their sentence.

It is thus quite hard to see a State doing more to further the cause of justice. Indeed, as has been voiced in the majority opinion in Osbornes case, any more leniency allowed to a convicted would allow, in Justice Alitos words, to play games with the criminal justice system. While it may be an Utopian principle that a convict ought to be able to exercise a moral and a corresponding legal right to prove his innocence by producing new evidence (even where there has not occurred any case of infringement of his rights under the due process doctrine during the course of the actual trial), in the interests of expediency of justice, such a right must sadly, be confined to the realms of Utopia only.

Question Two 
Explain the differences between the different degrees of homicide, i.e., first-degree murder, second-degree murder, voluntary manslaughter, and involuntary manslaughter (see Chapter 4). Do you believe that homicide committed in the heat of passion should carry a lesser punishment that premeditated (i.e., first-degree) murder What about unsuccessful murders, such as instances in which a person aims a firearm at an intended victim and then pulls the trigger, but the weapon jams and the victim is not injured Should such criminal actors receive a lesser punishment Are they any less dangerous than criminal actors whose weapons functioned correctly

The crimes of Murder and Manslaughter have been expressly recognized in common law, in both English and American criminal jurisprudences as constituting two separate offences (sharing certain similar elements), however, the categorization of the above in the form of murder in the first degree, murder in the second degree, voluntary manslaughter, and involuntary manslaughter, was first made only in 1794, when the State of Pennsylvania passed a law to that effect. Today nearly all States in the USA have followed suit, by enacting similar (or roughly similar) legislation.

Fundamentally, both murder and manslaughter fall under the head of crimes called homicide, which essentially means the killing of a person (or an unborn child) unlawfully. However the main aspect that makes manslaughter a somewhat lesser offence than murder is that the latter must always be shown to have been committed with some malice aforethought. In State v. Jensen, 417 P.2d 273 (Kan. 1966) this phrase was held to mean, inter alia, as the dictate of a wicked, depraved and malignant heart and that it could either be express or implied. Again in State v. Fooks, 29 Kan. 425, 427 it was deemed to be that condition of ones mind which is manifested by his intentional doing a wrongful act without just cause or excuse. Critically, when it is asked to consider whether an offence is one of manslaughter or murder the court also applies the Rule of Provocation i.e. whether the act of killing was committed in the heat of passion and in the face of provocation by the victim. If this Rule can be favourably applied then the charge is likely to be mitigated to one of manslaughter.

A murder in the first degree differs from one in the second by virtue of it being premeditated or deliberate, in addition to the common ingredient, i.e. malice aforethought. A cold-blooded, calculated murder is therefore a first degree murder and invites a greater penalty than that in the second degree. Correspondingly, manslaughter is also classified into voluntary and involuntary, the former being an act of homicide committed with intent to kill while the latter is usually the result of the exhibition of sheer wanton recklessness.

Crimes committed in the heat of passion ought to be afforded some leniency in comparison to ones that were carefully planned and executed. For any offence, the law should consider the actus reus and the mens rea jointly, and not in exclusion to one another. Hypothetically, if one were to treat murder and voluntary manslaughter on the same footing then there would be no need to consider the Rule of Provocation stated above  it would be immaterial whether the offence was committed in the face of instigation or in cold blood. In my opinion, this is clearly harsh, as unlike a murder (in any degree), manslaughter involves some degree of active contributory participation on the victims part i.e. the act of provocation, which, if it had been avoided, would not have led to frayed nerves and the resultant homicide. Analogously, while an act of homicide and the attempt to commit one both involve the element of mens rea, the latter must be treated in a more lenient manner simply because the corresponding actus reus is not culpable to the same degree as the homicide itself.