Select Page

Criminal Law
Charleston School of Law
Phillips, Kimberly D.

Criminal Law Outline

I. Difference Between Criminal and Tort Law

a. Criminal law: society’s retributive needs, general and specific deterrence, education, rehabilitation, isolation

i. Addresses community’s sense and reality of safety of persons and property, resulting in incarceration, fines, probation and parole

b. Tort law: individual’s retributive needs, economic efficiency, moral needs for compensation and reciprocity

i. Usually results in damages or injunctions

II. Theories of Punishment

a. Deterrence: individuals won’t commit crimes for fear of the same punishment as the current defendant

i. Specific: person

ii. General: society

b. Rehabilitation: obligation to punish an individual to make him a better individual in the future

c. Isolation: isolating the wrongdoer from other law-abiding citizens

i. Looks out for the safety of society as well

d. Education: educates the rest of the population in what rules society considers to be most sacred

e. Retribution: goal is to ensure the individual gets what he deserves

i. Just repaying the money isn’t sufficient

ii. Looking to the past as opposed to the future


I. The Basics of a Criminal Prosecution

a. The Investigation

b. The Charge

c. Pre-trial Motions

i. Exclusion of evidence

ii. Request to dismiss charges for:

1. Insufficient evidence

2. Failure to charge a crime

d. Trial

i. Entitled to a jury trial if you can be incarcerated for 6 months

e. Plea Bargain

i. Defendant must waive the right to a trial

f. The Jury Instruction

i. Statement of law given to jury at the end of the trial

ii. Must be guilty “beyond a reasonable doubt”

g. Motion for a judgment of acquittal

i. Only defendant can file this; usually a case is dismissed in this stage for insufficient evidence

h. Double jeopardy

i. May not be tried for the same offense

i. The Basis for an appeal

i. Must be a legal error in the trial:

1. Insufficient evidence

2. Improper jury instruction

3. Evidentiary challenges

4. Constitutional challenges

II. Criminal Statutes

a. Divided into felonies and misdemeanors

b. Malum in se

i. The conduct is wrongful in itself

c. Malum prohibitum

i. The con

by contract (lifeguard or nurse), because of relationship between parties (parent/child), because of your voluntarily assuming duty of care to someone else and then failing to perform, and where your conduct created the peril

2. Defendant’s failure to do duty causes immediate and direct harm to the victim

c. Possession as Actus Reus

i. Voluntarily possessing an item

ii. Constructive possession: exercise dominion or control over an item

d. Status or Condition

i. Status or condition alone is not enough; an Act is necessary


I. Common Law

a. Specific Intent

i. D must have an intent, or specific purpose, beyond the doing of the prohibited act

b. General Intent

i. Require that D only consciously engaged in the prohibited act, or intended to commit the act that causes the harm

c. Strict Liability

i. No intent required

ii. Statutory rape, selling liquor to minors, etc.