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Criminal Law
Charleston School of Law
Gammons, Debra J.


Day 1


South Carolina-strong ties with English common law

Legislatures-codifying common law/what constituents want

Model Penal Code -1962-attempt to put something together as guidelines for states

Some states use and some don’t

Crime isn’t a crime until legislature says it is crime

Misdemeanors-minor theft


Malum in se-rape, murder

Malum prohibitum-speed limit violation

Starts with a complaint which leads to an Investigation

Investigation-police start and look for probable cause

Probable cause-low standard/ police simply have to find that it is more likely than not that the person committed the crime

Typically the police will contact the prosecutor and ask if it’s enough for an arrest

If there is enough it goes to the Grand Jury


Then discovery motions are made

Pre-trial hearing-before magistrate judge (in SC not required to be a judge)

Police will read from the incident report

Defense attorney will ask questions and will make a motion to dismiss

Magistrate simply has to determine that probable cause exists

Defense decides if there will be a bench trial or jury trial

If juries are deciders of facts they have a great deal of power

Number of jurors and unanimous verdict are not required under the Constitution

Voir dire- cannot strike based on race or sex

Defense calls for a directed verdict or motion of acquittal -saying there is no weight to the evidence

Prosecution responds that there IS evidence

Even if the motion is denied-the defense has to renew it after IF the defense chooses to make a case (5th amendment says a person doesn’t have to make a case against themselves)

Supreme Court says that people are presumed innocent

Expert testimony

Jury Instructions-given towards the end of the trial- judge explains the law/elements

If jury can’t decide-Mistrial-state can choose to retry if there is a hung jury

Jury nullification-jury decides to render a verdict that is separate from the law-disregards their instructions and not apply the law to the case

Judge cannot overturn a not guilty verdict

If jury gives jury verdict of guilty the judge can outside of the verdict overturn a guilty verdict

Plea Bargaining-huge role in criminal cases

95% of cases are resolved this way

Prosecution makes an offer to reduce charge/sentence etc.

Sometimes the Defendant makes an offer

BUT the Judge doesn’t have to abide by the plea bargaining

Plea Bargaining must be freely/voluntarily given-knowingly given

Judge will ask your age/education/employment/drug use (legal and illegal)

Good faith requirement on both sides-once a plea bargain is agreed-the prosecution often stops working on the case



Evidentiary challenges

Improper jury instruction

Improper inclusion/exclusion


Burden of proof switches to the defendant

Government can appeal if dismissed before it goes to the trial

Defense attorney-has to be a zealous advocate-still have a role of being ethical-but must make sure the government is put to the test-must show that there is insufficient evidence-create doubt

Prosecutor-not about zealous advocacy-minister of justice-must have sufficient evidence-probable cause and beyond a reasonable doubt

NC prosecutor disbarred from DUKE lacrosse case

Proof of the Elements

Proof beyond a reasonable doubt-“doubt that causes a reasonable person to doubt”

Huge burden and no clear definition of what that means

Does not mean without all doubt

US v. Jackson- found guilty of possession of ammunition by a convicted felon

Elements of this crime: State has to prove:

1) identity of the felon-person arrested has a felony conviction

2) he possessed ammunition

Government provided a certified copy of a judgment that showed that “Aaron Jackson” was convicted of unlawful possession of a weapon and a controlled substance.”

No presentation by defense-jury finds guilty

Defense appeals and argues mistaken identity-prosecution didn’t prove that defendant had a felony conviction (element of the crime)

Prosecution was lazy-they should have offered more proof that they were same people

Burden of proof is on the government

Presumption of innocence-embedded in due process

Day 2


Beyond a Reasonable Doubt- requirement in trials-not in US Constitution-different states have different interpretations

Prosecutor must prove jurisdiction

Jurisdiction in SC is where the crime occurred

Solicitor asks the

aimed the city code was vague because it had not set parameters for dog barking.

Appellate court disagreed-they said a person of reasonable intelligence would understand that a dog barking for an hour over the sound of a lawnmower was in violation of the code.

To overcome vagueness challenge-statutes need to be clear in a reasonable way

Because people should be able to know what the law is.

SCOTUS identified three protections afforded by the vagueness doctrine:

a. to allow people to arrange their conduct so as to steer clear of unlawful acts-reasonable person of ordinary intelligence

b. to prevent arbitrary and discriminatory enforcement of laws by police officers, judges and juries

c. to avoid limiting the freedom of speech and expression (over breadth doctrine)

Problem 6 pg 70

Defense-unconstitutionally vague-how would the officer know the intent of the two vehicles.

-If the issue is the speed then he should have given them a speeding ticket.

Federalism-could be a limit to criminal statutes

Separation and distribution of power between states and federal government

Jones v United States-“used in commerce” SCOTUS decided the statute didn’t apply to private residences. Federal government can’t step over the state statutes unless their jurisdiction is intended by congress.

Due Process Right to Privacy- SCOTUS finds this through the Fourteenth Amendment

Lawrence v. Texas-stare decis is a guide not a mandate

South Carolina still has $500/5 year sodomy statute

Supreme Court 1985-states can prohibit sodomy

Supreme Court 2003-no they cannot prohibit private behavior

Ex Facto Posto-unconstitutional-

Bill of Attainder-unconstitutional

Day Four


Purposes of punishment

UTILITARIAN THEORY-justified primarily by preventing future harms

1) Deterrence

-specific: I got caught once, won’t do that again