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Criminal Law
University of Kentucky School of Law
Lawson, Robert G.

Criminal Law Outline

Lawson, Fall 2011

I. Institutions and Processes

A. Structure of Criminal Justice System

1. Lawson continually stresses shortcomings of criminal justice system.

a. underfunded; overworked

b. limited resources

c. huge prison population, and growing

d. prosecutors have tremendous power, discretion

e. privatization of prison system…

f. police may define crimes

g. defense for indigent arrestees lacking

h. mechanism for selecting judges often differs

B. Criminal Justice Procedures see chart, p. 11—general view of crim. justice system.

1. Pretrial diversion—meet certain conditions (drug tests, no arrests) to have charges dismissed.

2. Pretrial release

a. Money bail system

i. Results in confinement of large number of untried inmates.

b. Bail bond

c. Recognizance

d. Preventive detention

3. Plea Bargaining & Guilty Pleas

a. Penalties have gotten harsher; as a result, plea bargaining is more prevalent; we are left with the problem of the “disappearing trial.”

4. Initial appearance:

a. Presentment (first appearance in front of a judge)

b. At this stage a lawyer may be appointed if one is needed.

5. Preliminary hearing (for felony charges only in some systems)

a. State produces evidence;

b. determine if there are enough facts to hold D.

6. Indictment

a. Formal charge from grand jury.

b. Happens behind closed doors, with prosecutor presenting information to Grand Jury.

c. Constitutionally based.

d. NOTE: Some jxs don’t require indictmentà prosecutor may file charge.

7. Arraignment:

a. Brought before judge, indictment is read.

b. May plead guilty or not guilty.

8. Formal trial procedure:

a. Voire dire—selection of jury.

b. Opening statements—lay out what is to be proved.

c. Production of evidence.

d. Closing arguments.

e. Jury instructions—jury charged with elements required for crime.

f. Sentencing.

g. [appeal]

9. Criminal case in a nutshell:

a. A criminal case starts with an arrest.

b. Mostly police file charges.

c. Judge’s role=referee; jury=fact-finder, deciding guilt or innocence.

d. Judge can end trial with a directed verdict (if there is insufficient evidence).

e. Sentencing:

i. Usually judge gives penalty, but this can vary. In some jxs jury can set a ceiling on penalty.

ii. Determinate sentence or indeterminate.

1. Probation, conditional discharge, parole.

iii. Trial, appeal.

1. D CANNOT appeal on ground that he is innocent.

2. State CANNOT appeal acquittal.

C. Process for Determining Guilt

1. Role of the jury:

a. Duncan v. Louisiana, S.C. (1968)—D denied jury trial in a battery offense (punishable w/ up to 2 years).

i. Court held that the 14th Amendment guarantees a right to a jury trial in all criminal cases which – were they to be tried in federal court – would come within the 6th Amendment guarantee.

ii. 6th Amendment—right to a jury trial (federal court). Ruling extends this to state courts.

iii. Reluctance to entrust plenary powers over the life and liberty of the citizen to one judge or to a group of judges.

iv. Limit—doesn’t apply to petty offenses; depends on potential penalty.

b. Other jury trial right cases:

i. Upheld when jury only had 6 persons.

ii. Unanimity not necessarily required—upheld 11-1, 10-2.

c. U.S. v. Dougherty (1972)— Appellant argued that the judge erroneously refused to instruct the jury of its right to acquit appellants without regard to the law and the evidence, and refused to permit appellants to argue that issue to the jury. Court disagreed.

i. Jury nullification prerogative-in-fact.

ii. Jury nullification in exceptional cases. Juror has power of lenity based on the facts, but there need not be instruction on this power—this is would, in effect, make jurors those who fashion the law.

iii. Worries that this safeguard will be abused; “run the risk of anarchy”; also, put undue burden on a juror.

iv. NOTES:

1. Nearly all states follow Dougherty rule. Only few allow jury to be judge of law and facts.

II. Defining Criminal Conduct—The Elements of Just Punishment

A. Introduction

Ø Common law and MPC give central importance to three elements:

1. Legality—no punishment without law.

2. Culpability—must find fault.

3. Proportionality—must have just punishment.

B. Legality

1. Commonwealth v. Mochan (1955)—D convicted of common law misdemeanor for injuring public morality. No statute prohibiting harassment here.

a. Held: Guilty; misdemeanors may arise under common law.

b. Dissent: Declaring something to be a crime that was never before known to be a crime!


i. Legality principle—nulla poena sine lege—no punishment without law.

ii. Fear of retroactivity and vagueness in the law.

iii. Nearly all jxs have abolished common law crimes!

1. H/E, S.C. has not declared them unconstitutional. [only have said no Fed. common law crime.]

iv. MPC—tries to abolish common law crime.

Common law gave courts the power to make crimes when society’s morals were violated. Most states have abandoned this and only allow the legislature to make crimes. The rational is fourfold:

1. Provide notice as to what is unlawful

2. Confine police discretion to enforcement of existing law

3. Prevent judges from arbitrarily making new law.

4. ensures that criminal law operates prospectively.

Constitutional Principles

The principles stem from two provisions of the Constitution.

Prohibition of ex post facto laws. A person cannot be punished for an offense created after D’s act.

Due Process clause. The principle comes from the 5th and 14th amendments and requires notice, clarity, and sufficient specificity before a person can be convicted.

2. U.S. v. Dauray (2000)—D arrested with 13 separate pictures of child pornography; claimed statute did not apply to him because he possessed individual pictures, not “matter” that contained “visual depictions of minors.” Are these individual pics within meaning of statute?

a. Held: Since statute can be read either for or against D, apply rule of lenity—resolve ambiguity in favor o

1. 8th doesn’t require strict proportionality.

2. Rather, forbids extreme sentences that are “grossly disproportionate” to crime.

à Recidivism serious problem, state has interest in policies deterring crime.

3. Lockyear v. Andrade, US (2003)—Kmart theft, each under $100. D sentenced to 25 years for each theft. Because of priors (drug, burglary)…S.C. upheld. Controversial.

D. Culpability

Ø Actus Reus + Mens Rea = Crime

Ø culpable act + culpable state of mind = crime

Rationales for act requirement:

i. Blackstone: need act to infer state of mind.

ii. Stephens: Everyone has bad thoughts…need act to punish.

iii. Dworkin: How firm would intent actually have to be to punish it without act?

iv. Williams: How to separate daydreaming from real intent, if you could punish intent alone? plus, would just result in too much crime.

v. Goldstein: Poses no danger to society without the act.

All crimes have an act. Act must be voluntary and must be of own volition. Acts can be either positive (i.e. hitting someone) or omissions (failing to act under legal duty). The law does not punish bad thoughts only because almost everyone would be guilty.

Positive Acts. All physical acts must be voluntary, of conscious and volitional movement. If D is acting as automaton or unconsciously (Newton), then there is no actus reus. Furthermore, if D is moved by another (Martin) then there is no actus reus.

Policy. Policy behind voluntary acts is that an involuntary act cannot be deterred and retributive theory is based on the assumption that D chose to commit crime freely.

MPC defined involuntary acts.

1. Reflex/convulsion

2. Bodily mov’t during sleep/unconsciousness

3. Hypnosis (most jurisd’s do not recognize hypnosis as defense

4. Bodily mov’t not otherwise product of effort or determination by actor either conscious or habitual. (Martin being carried by police to highway)

Note. Habit is considered a voluntary act though consciousness degree is disputable

Possession is not an act in most jurisd’s if person was unaware of possession. (ex. Drugs slipped into backpack unknowingly) unless negligence can be shown.

Omissions. General rule is that there is no legal duty to act when another is facing harm unless there is a specific legal duty to act.

Typical legal duties.

1. Statutory-by civil/criminal statute

2. Status Relation- parent/child, spousal, employer/employee

3. Contractual- ex. Babysitters

4.voluntarily assuming care of another. (Oliver, taking drunken person home.)