I. NATURE, SOURCE, AND LIMITS OF CRIMINAL LAW
-Circuit attorney in MO not district attorney
-Criminal law (state-attorney is elected and federal level-us attorneys are appointed)
THEY DECIDE: Who gets charged with what, who gets charged, jury decides…
Public defender or private attorney (cannot prosecute b/c state’s job)
-Crime=intentionally hurt others for a reason
-OJ and Blake: found innocent in criminal by reasonable doubt, but convicted of tort by proponderous of evidence through negligence of actions
-corrections has become major part of court system; theories: system is better in solving crime b/c technology, but many crimes are not reported let alone prosecuted; other: system is unfair and more people in corrections b/c cannot afford defense attorney….given a pub. def. but over worked-usually plead guilty
-Criminal process:
1. Crime
2. Investigation
3. Arrest (need probable cause)
4. Initial Appearance (Bail)
5. Preliminary Hearing (Grand Jury Indictment to see if arrest justified)
6. Arraignment (Plead Guilty Not Guilty)
7. Trial: (acquitted or convicted). Pros. goes first to state charges, D just needs to poke holes to raise doubt, no need to prove innocence or evidence; Judge instructs jury regarding the law at end of trial before deliberation. thus, grounds for appeals if judgemessed up or lawyer messed up. CANNOT BRING UP PAST CRIMES HERE, ONLY PRESENT CASE.
8. Sentencing (maybe another trial on this)
What is an information? formal charge against defendant; info = prsctr while indictment = grand jury; ALLOWED TO BRING IN PAST CONDUCT (good/bad) TO PIN PUNISHMENT.
-Grand jury after indictment, i.e. to show that there is enough evidence to go to trial, person not convicted of crime yet
-prosecution of crime is a political game…prosecuter decides if grand jury, sets bail…plea bargain (negotiation in crim law is common)…about 95% plea, remarkable in U.S. courts
§546.070: Order of trial IN MO.
1. Prosecuting Attorney:
a. States case and Provides evidence to support case
2. Defense Attorney:
a. States defense and Provides evidence to support case
3. Parties offer rebuttal testimony if:
a. For furtherance of justice and Evidence relating to original case
4. Court will give jury written instructions regarding all legal questions in case necessary for their verdict. Instructions will include definition of reasonable doubt.
5. Prosecuter makes opening remark, Defense attorney follows with remark, and Prosecutor concludes the argument.
Note 1, p. 3. Two scholars have defined crime as “any social harm defined and made punishable by law.” What would Henry M. Hart say? Condemned by the community/society; it is intentional, not accident like civil.
N. 2, p. 3, cont’; Is it a crime? Genarlow Wilson (17) found having consensual oral sex with a fifteen year old. Law under which Wilson was convicted was changed after his conviction; the act would now be treated as a misdemeanor with a maximum sentence of one year in prison, and no sex offender registration. E.g. where law changes because of the community feel of the situation; there is problem when community is not behind you.
Statutory Rape, 1st Degree; RSMo, Ch. 566.032
1. A person commits the crime of statutory rape in the first degree if he has sexual intercourse with another person who is less than fourteen years old. Arbitraty #, less than 15 more than 13-political standard so to say
2. Statutory rape in the first degree is a felony for which the authorized term of imprisonment is life imprisonment or a term of years not less than five years.
Statutory Rape, 2nd Degree; MCC, Ch. 566.034
A person commits the crime of statutory rape in the second degree if being twenty-one years of age or older, he has sexual intercourse with another person who is less than seventeen years of age. 21 because standard of more of an adult than 18, b/c drink, etc.
2. Statutory rape in the second degree is a class C felony.
Statutory Sodomy 1st Degree, MCC, Ch. 566.062 (deviate sexual intercourse)
1. A person commits the crime of statutory sodomy in the first degree if he has deviate sexual intercourse with another person who is less than fourteen years old.
2. Statutory sodomy in the first degree is a felony for which the authorized term of imprisonment is life imprisonment or a term of years not less than five years.
Statutory Sodomy, 2nd Degree; MCC, Ch. 566.064
A person commits the crime of statutory sodomy in the second degree if being twenty-one years of age or older, he has deviate sexual intercourse with another person who is less than seventeen years of age.
Statutory sodomy in the second degree is a class C felony.
Child Molestation; MCC, Ch. 566.068
A person commits the crime of child molestation in the second degree if he or she subjects another person who is less than seventeen years of age to sexual contact. (any touching of another person’s private parts for purpose of arousing or gratifying owns sexual form; no mention of “perp” age in this statute…kind of archaic)
Child molestation in the second degree is a class A misdemeanor unless the actor has previously been convicted of an offense under this chapter, in which case the crime is a class D felony.
Affirmative Defense: Marriage to Victim, MCC 566.023 (to above)
It shall be an affirmative defense to prosecutions pursuant to sections 566.032, 566.034, 566.062, 566.064, 566.068, and 566.090 that the defendant was married to the victim at the time of the offense.
Legal Marital Age, Missouri
Under Age 18 cannot marry without the consent of the custodial parent or guardian.
Under Age 15 cannot marry without approval of a judge. The statute states that the judge should grant approval only upon a showing of “good cause” and that unusual conditions make the marriage “advisable.”
Persons lacking mental capacity to consent to marriage cannot marry without court approval.
Note 3, p. 4, The common law; Sources and its beginning
Evolved over centuries in England
Authored by Judges not Legislators
Was Adopted by most states (except Louisiana)
Defined most major crimes (murder, rape, robbery, burglary, larceny, arson, etc)
MO com
Can Circumstantial evidence sustain conviction for driving while intoxicated if defendant was found behind wheel of vehicle on private driveway with lights on and motor running, partially consumed can of beer was between defendant’s legs and two other empty cans were in the backseat, and trooper had been brought to scene by complaint about suspicious vehicle?
Holding: Circumstantial evidence can sustain a conviction for driving while intoxicated if defendant was found behind wheel of vehicle on private driveway with lights on and motor running, partially consumed can of beer was between defendant’s legs and two other empty cans were in the backseat, and trooper had been brought to scene by complaint about suspicious vehicle. (ruled out any reasonable hypo. for innonence and found for inferred drunk driving.)
Hypo
What if D had been in his own driveway and there had been no beer cans in the car?
What if D had been in his girlfriend’s driveway after she had just broken up with him?
Why did the Appellate Court apply the “flip of the coin” test?
Appellate court need only determine whether a jury could “reasonably have reached the result that it did.” (Jury, not appellate court, is bound by “beyond a reasonable doubt”) LESSON: CIRCUMSTANTIAL EVIDENCE CAN SUSTAIN A CONVICTION.
Inferring drunk driving, MO
§577.010. Owens not guilty here b/c although engine on, car was in park, and in Mo you need to have car in Drive.
§577.041. May not submit to breathalyzer; but license taken away; if submit, hard to get erased from record. If deny, a good defense. (if passed out, then MO can take you for blood test)
§577.017. Open container law (illegal for only drivers, no mention of passengers)
III. JURY NULLIFICATION
A. Jury Nullification:
The jury may ignore the facts of the case and the judge’s instructions on the law and acquit the defendant due to compassion for him, mistreatment of police, his conduct they think should not constitute a crime, etc. Old adage of not being oppressed by government BUT it is a right not a POWER.
State v. Ragland
Issue: Is it unconstitutional to tell a jury that they “must” find defendant guilty even when they have the power to nullify a ruling?
Holding: A court need not inform a jury of a right to nullification. And can say “must abide by law.”
Use of jury nullification:
GOOD: Peter Zenger, 1733: he spoke to his defense and jury liked what he said
