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Criminal Law
Charleston School of Law
Shealy, Miller W.

Criminal Law Outline
1.   Criminal Statutes
The Basics of a Criminal Prosecution
1.       The Investigation: the crime itself, and how police respond to it. How law enforcement pursues criminal suspect and how the police gather the evidence they use.
2.       The Charge: best to use the federal model. The charge is usually the complaint. Basic ways to charge someone: (you have to have one of these 3 items before you can charge a suspect)
a.       Indictment:  always issued by a grand jury (composed by 23 people) in federal court. The grand jury typically sits for 6 months to 1 yr. Grand Jury usually meets once a month (3-4 days).
                                                              i.      Grand Jury:  prosecutor brings indictment/complaint (it sets out what the suspect is accused of committing) to the grand jury. (grand jury, court reporter, witness, US attorney (prosecutor) are always in the grand jury room). The Grand Jury has to decide if there is probable cause to believe that the accused can be charged in committing each charge in the indictment. The Grand Jury vote is majority based. If the Grand Jury finds probable cause, a judge can issue a bench warrant (document saying to arrest the accused) or a summons (set in the mail, a stern invitation to come to a judge at a certain time, and if you do not show up a bench warrant is issue).
b.      Arrest warrant: not issued pursued to grand jury info. An investigator, goes to the appropriate judge and prepare an affidavit (sets that facts basis for a possible arrest, gives probable cause). Based on the affidavit the judge will issue the arrest warrant (an order to arrest the accused). You still have to have get an indictment and go to the grand jury (after an arrest warrant), for the case to go to trial.
c.       Information:  typically for misdemeanors(can go to jail for less than a yr) and not felonies
                                                              i.      Arraignment: first appearance in court. The Judge asked you how you want to plead. What the possible sentences are for the crimes. The accused is asked if he has appointed counsel, and if the accused does not have one, the court will appoint the accused one. Then bond is discussed (based on seriousness of the crime AND if the accused is a possible flight risk and they might leave jurisdiction). PR Bond (you sign a paper, promising to come back, and will be held in contempt if you don’t. 
3.       Pre-Trial Motions: the counsel has to argue certain issues here or if NOT the issues can NOT be brought in later in the trial. (Ex: if there was an error in the search that lead to the arrest (or Miranda, something wrong with the indictment), and the counsel doesn’t bring it up before the trial it is considered waived)
4.       Trial: where most of the errors occur.
5.       Plea Bargain: can occur at anything during the trial before conviction. The accused is negotiating with the prosecutor for a deal to a lesser sentencing.
6.       The Jury Instruction: to make sure the jury or the judge follows the right structure of the law. The jury determines based on the facts who wins. The judge informs the jury what the law is (ex: defines what murder is and what each elements of murder) and what part of the law the jury is suppose to use. Before the judge charges the jury, the judge will ask both counsel how they will like to instruct the jury (any request). Also the prosecutor or defense attorney can summit and objective the language if the judge incorrectly instructed the jury.
7.       Motion for a Judgment of Acquittal: you will see a lot of errors in substantial law. Motion for directive verdict: (for the defense example) you tell the court as a matter of law the government has not presented enough evidence to prove their case, and have those facts presented to the judge or jury (the finder of facts). The prosecution has not presented sufficient evidence against the defendant. A defendant can seek to have the case dismissed for insufficient evidence.
8.       Double Jeopardy: if your case gets dismissed on the merits (jury/ judge say not guilty or defendant gets a directive verdict), you cannot be tried again for the same offense.
a.       Exception to DJ: Dual Sovereignty Doctrine: which permits a different state or the federal government to prosecute a person for the same crime so long as the state or federal government has jurisdiction over the offense.
9.       The Basis for an Appeal
a.       Insufficient evidence: when the government fails to present sufficient evidence of the defendant’s guilt.
b.      Improper jury instruction: when the court gives an improper definition of the crime or interpretation of the statute.
c.       Evidentiary challenges: when evidence is improperly admitted or court excluded evidence relevant to the case.
d.      Constitutional challenges: when the statute, charges, jury instruction, or pre-trial or trial procedure deprived the defendant of a constitutional right.
Statutory Basis of Criminal Law
1.       Criminal Statutes: they don’t make new crime, but they continued to redefine the names or parts of elements in a crime. The legislatures continued to create new defenses. You can have several crimes from one fact pattern.
a.       Felonies: a serious crime that is punishable by at least one year in a state prison.
b.      Misdemeanors: a lesser crime for which the maximum penalty is either: (a) incarceration for less than a year, typically in a city or county jail; or (b) a fine or (c) both
c.       Malum in se: bad or wrongful in itself. (murder, rape, larceny)
d.      Malum prohibitum: have a lower intent, or even require no proof of intent, known as a “strict liability” offense.
e.      Intent: short hand for mental state.
2.       Model Penal Code: It has been widely influential in the states in drafting their own penal statutes. Many states have adopted portions of the MPC, and courts frequently refer to its approach as a basis for interpreting criminal statutes that are not drawn specifically from that source.
3.       Interpreting Statutory Language: understanding the words of a statute.
4.       Studying Criminal Statutes:
Intent: In determining intent, we must look first to the words of the statute b/c they are the most reliable indicator of legislative; if the statutory language is clear and unambiguous, the plain meaning of the statute governs. If no statutory explanation, common law meaning and intent prevails.
-same language from similar documents has the same meaning unless the legislative specifically says something different.
Moreover, if a term known to the common law has not otherwise been defined by statute, it is assumed that the common law meaning was intended.
Rule of Lenity: Unique to criminal law is the statutory to criminal law is the statutory maxim that criminal statutes should be interpreted narrowly in order to ensure that a defendant is not convicted for a crime about which the person may have been unaware. If a statute is clear on its face, then the rule of lenity is unnecessary. If, however the words of a statute offer two possible meanings, and both meaning are constitutional, then the court must decide which interpretation it will follow. Lenity controls here, and the court will interpret the statue favorable to the defendant. (p. 62)
Federalism: if the power is not mention in the Constitution they DO NOT have it. Only limited the federal government by telling them what they can ONLY do. The federal government is a government with LIMITED power.
Other Constitutional Limitations
Right to Privacy (p.74):
Ex Post Facto (p. 75): First, every law that makes an action, done before the passing of the law, and which was innocent when done, criminal; and punishes such action. Second, every law that aggravates a crime, or makes it greater than it was, when committed. Third, every law that changes the punishment, and inflicts a greater punishment, than the law annexed to the crime, when committed. Fourth, every law that alters the legal rules of evidence, and receives less, or different, testimony, than the law required at the time of the commission of the offense, in order to convict the offender. All these, and similar laws, are manifestly unjust and oppressive.
2.   Principles of Punishment
Theories of Punishment
Criminal Defense: you have to focus on what the government CAN prove. How long your client can possibly go to jail for (what is your client possible punishment)? Find out what the government thinks that you did (you d

                (d) negatives a defense under the statute of limitations; or
                (e) establishes jurisdiction or venue;
(10) “material element of an offense” means an element that does not relate exclusively to the statute of limitations, jurisdiction, venue, or to any other matter similarly unconnected with (i) the harm or evil, incident to conduct, sought to be prevented by the law defining the offense, or (ii) the existence of a justification or excuse for such conduct.
Wrongful Act: the term actus reus is referred to as “the wrongful act”. The Model Penal Code states that “a person is not guilty of an offense unless his liability is based on conduct which includes a voluntary act or the omission to perform an act of which he is physically capable.
Voluntary Act: it is essential that the act be a voluntary act. The following are not voluntary acts w/in the meaning of this section:
1.       A reflex or convulsion
2.       A bodily movement during unconsciousness or sleep
3.       Conduct during hypnosis or resulting from hypnotic suggestion
4.       A bodily movement that otherwise is not a product of the effort or determination of the actor, either conscious or habitual.
-Unconsciousness: (where not self-induced, as by voluntary intoxication or the equivalent) unconsciousness is a complete defense to a charge of criminal homicide. Unconsciousness need not reach the physical dimensions commonly associated with the term (coma, inertia, incapability of locomotion or manual action); it can exist and the above-stated rule can apply – where the subject physically acts in fact but is not, at the time conscious of acting. ***Thus, the rule has been invoked in many cases where the actor fired multiple gunshots while inferably in a state of such “unconsciousness”*** including some in which the only evidence of “unconsciousness” was the actor’s own testimony that he did not recall the shooting***.
Unconsciousness: the law generally requires that a person be conscious of their act to be held liable for it.
Attendant Circumstances: the statute requires proof of intoxication, which is described as an “attendant circumstance” and not the “act” element of this offense. An attendant circumstance is an element of the crime that is a condition that must be present at the time of the defendant’s action or inaction, as the case may be that contributes to the determination that the act is deemed a crime.
Corporate Criminal Liability: For corporate criminal liability the government need only prove that the defendant acted for the benefit of the corporation w/ the requisite intent for the agent’s conduct to be imputed to the corporation so that it will be liable for the crime. (Respondeat Superior)
Common Law – Subject to a few exceptions, a person has no legal duty to act in order to prevent harm to another. The criminal law distinguishes between an act that affirmatively causes harm, and the failure of a bystander to take measures to prevent harm. 
·         Jones v. US provided four situations in which the failure to act may constitute a breach of duty:
1. where a statue imposes a duty to care for another
2. where one stands in a certain status relationship to another
3. where one has assumed a contractual duty to care for another
4. where one has voluntarily assumed the care of another and so secluded the helpless person as to prevent others from rendering aid.