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Criminal Law
Charleston School of Law
Shealy, Miller W.

I. What is Criminal Law
a. “Commands” or “directions” that tell people what to do or not do
b. The commands are binding on all those subject to them i.e. the community
c. “sanctions” are connect to the “commands” and the “community” is prepared to enforce them
d. Community condemnation or moral condemnation for violations of commands
i. Not just anti social
ii. Not just what legislature says is “criminal”
iii. Moral delinquency may not be there with a civil lawsuit
II. What is the Essence of Criminal Sanction:
a. Punishment:
i. Jail
ii. Deprivation of liberty/freedom
b. By the State:
i. Not a private party
ii. Victims are not parties to a criminal action
1. victims are witnesses
III. Requirements for the criminal sanction to work:
a. Person to whom a command is addressed must
i. know of the laws existence
ii. know of the laws relevant content
iii. facts circumstances that make law applicable in particular circumstance
b. Person must be able to comply
c. Person must be willing to comply
IV. Who makes the criminal law
a. Common law: judges
i. judges can not make up new crimes
ii. They can change it and make it broader by the way that they interpret it or define it
b. Statutes/ Legislatures: codify laws and create criminal offenses
V. Basic Procedure
a. A crime usually starts with a report
i. can be done by a witness, victim, police officer (usually a written report)
ii. this is usually the primary source of information about the crime
b. Investigation:
i. the constitution really begins to kick in here
ii. 4th and 5th amendment stuff/ evidence gathering
iii. FBI DEA bring reports to the prosecutor who brings it to the grand jury
c. Grand Jury: 23 member
i. True Bill vs. No Bill: True: enough evidence to show probable cause
ii. No defendant no defense counsel
iii. victim will testify what happened to them
iv. only thing grand jury has to find
1. the government has presented sufficient evidence to establish probable cause that the D has committed the crime he is accused of
v. Defense has no right to know that the grand jury proceeding is going on, present evidence, or call witnesses
1. Why: because talks about people and events that don’t always turn out to be a crime
d. Arrest/ Indictment
i. If true bill presented to a judge who signs a warrant that allows for an arrest
ii. Can get an arrest based on a complaint without going through the grand jury / then have 30 days to get an indictment
iii. Indictment sets out the elements of the crime
1. Order to go out and arrest the person who is accused of the crime in the indictment evidence/ hearing
e. Initial Appearance (arrest warrants w/ out grand jury)/ Arraignment (after indictment: true bill):
i. Usually with in 48 hours of the arrest
ii. Bench Warrant is an arraignment
iii. initial charges and pleas given here
iv. Judge informs you of your rights
1. Advises you of the charges and the punishment you may receive
f. Preliminary Hearing
i. get to challenge the probable cause before the judge can not do this if indicted by GJ
ii. 48 Hour Rule[LW1] g. Pretrial Motion:
i. preserving error in the investigation and GJ stage
ii. Example: statement taken in violation of Miranda, illegal search and seizure
1. if violation of rights not raised here they may be waived
h. Plea Bargain Process: goes on throughout
i. Jury Selection
i. viore dire
1. question the jury panel
2. individual jurors asked questions by trial attorneys and judges
a. ex. Can you be fair in judgment of an illegal alien
b. Judges qualify the jury and attorneys submit questions
3. where the strikes happen 4 cause strikes
a. if you can’t be fair then you will be struck from the case
b. if o

lready answered
a. it can be struck from the record and the judge will instruct the jury to disregard the answer
b. can also move for a mistrial
i. ask the judge to stop the trial and start over again (get a new jury)
ii. look at how prejudicial the info is and the likely effect on the jury
4. with jury instruction usually wait till after the instruction has been given and then object
n. Post-Conviction/Habeas Corpus
i. this is after all of your appeals are done
ii. this allows defendant in a civil action to sue your attorney and say that they were at fault which lead to your conviction
1. attorney does not object to something that was clearly objectionable
VI. Cardinal ranking (order of things know where they fall), ordinal ranking (a list of things but they are not necessarily in order
VII. This is an ordinal ranking of the “proof” standards
a. “for good cause shown”: lowest standard (seen in civ pro: example: filed pleadings late)
b. Reasonable articulable suspicion
i. police may stop you and do a pat down in the street to check for a gun
ii. something less than probable cause
c. Probable Cause
i. reasonable well trained police officer has a substantial reason to believe a person has contraband
d. By a preponderance of the evidence (this is the civil standard)
e. Clear and convincing: sometimes in civil claims and sometime in motions for civil and criminal

[LW1]Would this be the same as the initial hearing

[LW2]Further comment