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Criminal Law
University of Kentucky School of Law
Fortune, William H.


I. How Guilt is Established
A. The Role of the Jury
1. Duncan v. Louisiana—a state may not refuse a jury trial to a D that is entitled to a jury trial under the 6th Amendment.
2. United States v. Dougherty
a) Concept of “jury nullification”: the jury may decide however they want and may thus IGNORE THE LAW and find a person not guilty of an offense. The jury does have a right to decide “in spite of the law”. If gross errors are made by the judge or jury and the D is acquitted, the decision cannot be reversed because of the “double jeopardy” concept.
b) Courts recognize that jury nullification may exist, but will not ENCOURAGE it by giving jury instructions that promote its use.
c) While courts will refuse to include jury nullification in instructions, it may be raised at other points in the trial; in the OJ trial, Johnnie Cochran called for the jury to “send a message to the LAPD…”
II. The Justification of Punishment
A. Why Punish?
1. Notes on the Allocation of Sentencing Authority
a) The Traditional Sentencing System—focused on the D rather than on the crime committed.
(1) Legislature
(a) Enacts statutes that define offenses and penalties
(b) Set a RANGE of penalties
(c) Assumes that all crimes are not exactly alike and not all Ds are exactly alike
(d) Setting an outer limit on the penalty ranges prevented the court system from handing down excessive penalties.
(2) Prosecutor
(a) May bargain to lessen the charged offense in exchange for a guilty plea
(b) May make recommendations to the judge for the sentence that should be given.
(3) Judge
(a) Has DISCRETION to select the sentence from the authorized range.
(b) May only select up to the outside limit of the sentencing range; however, some jurisdictions may require setting a minimum sentence for some crimes.
(4) Parole Board
(a) May release a prisoner before the maximum length of the sentence is reached.
(b) Some boards were subject to requiring inmates to serve a minimum % of the sentence
b) Disaffection with the Traditional System—Caused by:
(1) Too much power vested in the judge
(a) Sentences were not reviewable as long as they were within the acceptable statutory guidelines.
(2) Unfairness (discrepancies)
(a) Two Ds who committed similar crimes could receive quite different sentences
Factors # 1 & 2 were

tible with sentencing “goals” but was consistent (as affirmed by the appellate court) with the sentencing guidelines
(2) The purpose of sentencing guidelines was UNIFORMITY, but the D’s co-defendant was sentenced to a much larger penalty that included jail time.

III. Defining Criminal Conduct—The Elements of Just Punishment
A. Culpability
1. Actus Reus = Guilty Act
a) Positive Actions
(1) Martin v. State—In order to have a crime, you must have AN ACT (actus reus) and a culpable MENTAL STATE (mens rea). NO ACT, NO CRIME.
(a) We do not want to punish people for “bad thoughts” alone.
(b) An act distinguishes those with criminal thoughts and those who are willing and able to commit a crime.
(c) Words may be used to prove that the criminal thought existed.
(2) People v. Newton—defense of unconsciousness
(a) Not only do you have to have an act to have a crime, you have to have a VOLUNTARY act.
Defense of unconsciousness