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Criminal Law
University of Mississippi School of Law
Hoffheimer, Michael

Professor Hoffheimer, Section 1
Spring 2012
1.      Stages of Criminal Procedure
a.       Crime
b.      Arrest – establishes personal jurisdiction.
c.       Initial Appearance – hear charges, set bail.
                                                   i.      This is different if someone is indicted before they’re arrested.
d.      Preliminary Hearing – judge determines if there’s probable cause to hold D until grand jury can decide whether to indict.
e.       Grand jury – must decide if there will be an indictment.
f.        Arraignment – D is brought into court and read the indictment; D enters plea.
g.       Trial
                                                   i.      Jury must swear to return a true verdict.
                                                 ii.      Right to jury trial may be waived, and then it’s a bench trial.
                                               iii.      Critical point is when the judge gives jury instructions.
                                               iv.      After instructions, jury finds verdict.
2.      Sources of Law – always ask yourself what the source of legal authority is.
a.       Common Law – in the historical sense
b.      Model Penal Code – it’s more of a suggested, not intended to be adopted verbatim; many states have adopted MPC into law, but not MS.
c.       MS Law
3.      Right to Trial by Jury
a.       6A gives right to trial by jury for criminal cases.
                                                   i.      Binding on both state and federal gov’ts.
                                                 ii.      Applicable only to offenses punishable by more than 6mos jail time.
                                               iii.      Requires at least 6 jurors, but 12 is best.
                                               iv.      A substantial majority must vote for conviction (9/12 is substantial).
b.      7A gives right to trial by jury for civil cases.
                                                   i.      Binding on only federal gov’t.
4.      Burden of Proof
a.       Prosecution has BOP to prove “beyond a reasonable doubt of every fact necessary to constitute the crime charged.”
b.      Raised in In re Winship – beyond a reasonable doubt required by Due Process.
c.       Courts must be careful defining “reasonable doubt.”
                                                   i.      Definitions that are quantitative are normally bad.
1.      It’s qualitative.
                                                 ii.      Safest thing is to NOT define it.
                                               iii.      Court may define it, but could lead to appeal.
d.      Circumstantial Evidence – roof beyond a reasonable doubt can be proved by a totality of the surrounding circumstances.
                                                   i.      E.g., D found drunk and asleep in car w/ car started and lights on. Three beer cans were on the floor. Circumstantial evidence proved beyond a reasonable doubt he had been drinking and driving (Owens).
                                                 ii.      Circumstantial Evidence and MS – MS requires guilt proven solely on circumstantial evidence to be “beyond a reasonable doubt,” AND “no other reasonable hypothesis of innocence” (very high standard).
5.      Jury Nullification
a.       Jury can acquit w/o stating its reason and no matter its justification, its verdict is not reversible.
b.      This is the jury’s power to acquit a person they believe is guilty beyond a reasonable doubt if they choose to disregard the law.
c.       Good – safeguard against morally unjust or socially undesirable convictions.
d.      Bad – jury is violating its oath to obey the law.
e.       Ragland – jury nullification is not a right even though it is a power.
                                                   i.      Court doesn’t want to encourage jury nullification by giving instructions regarding the power’s existence.
                                                 ii.      Jury instructions that say jurors MUST convict if certain elements are met is ok.
6.      Terms
a.       Habeas Corpus – civil procedure to test the legality of someone’s confinement; prevents Congress from suspending an inquiry into someone’s confinement.
b.      Bill of Attainder – forbidden in the Constitution – special legislative act providing capital punishment w/o a trial for a person guilty of a high offense such as treason or a felony.
c.       Treason – attempting to overthrow the gov’t of the state to which one owes allegiance, either by making war or supporting its enemies.
d.      Double Jeopardy – if there’s an acquittal or conviction, can’t be tried again for the same thing.
                                                   i.      If it’s jury trial, it attaches when jurors are admitted to try the case truthfully.
                                                 ii.      Bench trial, it attaches when the first witness is sworn in.
e.       Corpus Delecti – you have to have the “body of the crime,” which means some substantial evidence.
                                                   i.      It refers to the material or substance upon which a crime was committed (body, house, etc.).
                                                 ii.      It refers to the substantive fact of crime; evidence of act and agency.
7.      Theories of Criminal Punishment
a.       Utilitarianism – focus on punishment in terms of desirable consequences.
                                                   i.      General Deterrence – punish to deter others (this is utilitarian b/c if we punish to deter others, that’s a good consequence).
                                                 ii.      Specific Deterrence – punish to deter the same offender from reoffending.
                                               iii.      Reform Theory (rehabilitation) – goal is to reform offender rather than to secure compliance through fear and punishment. Punish not to hurt, but to make them better people (drug rehab sentences).
                                               iv.      Incapacitation – prevents D from committing crimes if segregated/isolated (death penalty, house arrest, etc.).
b.      Retribution – punishment is justified when it’s deserved; offender should be punished whether or not it will reduce crime.
8.      Requirements Under CL (MS follows this).
a.       Elements – must prove all the elements of a crime w/ evidence and beyond a reasonable doubt.
b.      Mens Rea – must prove a “culpable state of mind.”
                                                   i.      Knowingly, willingly commit the crime.
                                                 ii.      3 States of Mens Rea
1.      General Intent – intentional volitional doing of the prohibited act
2.      Spe

                          i.      Voluntary aspect implied in the statute is absent b/c the man was involuntarily taken from his home to the hwy.
b.      Utter – drunk war veteran snaps and stabs son.
                                                   i.      Automatism typically a defense b/c can’t control actions in an unconscious state, but this state of unconsciousness was voluntarily induced, which makes automatism NOT a defense.
5.      Omission (as an act)
a.       Beardsley – no legal duty to act to save “lady friend” from overdosing unless one of the exceptions applies.
b.      Barber – doctor removes feeding tubes from dying patient does not commit a voluntary act, but only an omission. No duty to act when family requested tubed to be removed.
6.      MPC – Requirement of a Voluntary Act
a.       (1) 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
                                                   i.      MPC requires only ONE voluntary act – so long as there’s one voluntary act, D is guilty, even if he didn’t commit other elements voluntarily.
b.       (2) The following are NOT voluntary acts:
                                                   i.      reflex or convulsion
                                                 ii.      unconscious movement, e.g. sleepwalking, conditioned response, automatism
                                               iii.      hypnosis
                                               iv.      bodily movement that otherwise is NOT the product of the effort or determination of the actor
c.       (2) No liability for omission to act unless:
                                                   i.      the omission is made illegal by law; duty to act is imposed by law
d.      (4) Possession is an act if:
                                                   i.      The possessor knowingly procured or received the thing possessed; or
                                                 ii.      Was aware of his control thereof for a sufficient period to have been able to terminate his possession.
1.      Mens Rea = “Guilty Mind”
a.       Guilty/culpable mind is required unless it’s a strict liability crime.
b.      Broad Meaning – guilty mind; vicious will; moral blameworthiness (e.g., culpability and general intent).
c.       Narrow Meaning – mens rea is the mental state D must have w/ regard to the “social harm” elements set out in the definition of the crime (e.g., specific intent).
d.      Why do we have mens rea?
                                                i.      Punishing one who lacks culpability is ineffective/wasteful (can’t deter).