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Criminal Law
University of Mississippi School of Law
Clancy, Thomas K.

Criminal Law
Clancy, 2005
I. Introduction.
A. Criminal Law- a basic framework of the criminal justice system which protects our basic rights; a system of mandatory law enforced by penalties. We have rules in society to maintain order. We separate criminal law from civil law punishment because criminal laws fill the gap because there is moral judgment we are imposing by labeling behavior criminal.
B. Burden of Proof- the STATE almost always has the burden of proof.
§         The defendant generally has no burden of proof, only a burden of production.
o       i.e. D has the burden of producing evidence for his defense on each element
§         Aside: for affirmative defenses such as self defense, sometimes the D must prove it by a preponderance of the evidence.
1. Articulable Suspicion- least amount (more than a hunch, but less than 50%)
2. Probable Cause- standard, less than 50% but more than articulable suspicion, regulates search and seizure
3. Preponderance of the Evidence- (50.00001%) slightly in person’s favor
4. Clear & Convincing- civil not criminal trial
5. Beyond a Reasonable doubt- highest level of BOP; short of certainty, what is needed for guilty verdict in a criminal trial, no crystal clear definition.
***Burden of Production- burden to produce evidence
C. Jury Instruction Issues
1. Failure to give jury instructions. If there is any evidence, however weak, that supports D’s request for a jury instruction, the TC must give it. Ex. not giving a self defense instruction if the pope was attacked and killed the attacker as witnessed by 12 priests.
2. Erroneous jury instruction- was the instruction actually given a correct statement of law? i.e. Misstatement of the BOP or not giving proper definitions of elements.
*Aside: The jury does not have the right to be informed that they can nullify (find for the D despite evidence), but they do have the power to nullify
D. Sufficiency of the Evidence
1. Is whether any reasonable person could find guilt beyond a reasonable doubt.
2. Credibility determinations are not reviewable.
3. Is there any evidence to support proof of the elements of the crime?
4. The app. Ct will not weigh the evidence; they will look for any evidence. We do not want appellate courts substituting their judgment for jurors.
Analyzing Cases
1. What are the elements of the crime/defense? (i.e. All men are mortal.)
2. What do each of the elements mean? (mortal men will die)
3. Apply elements to the facts of the case? (Socrates is a man)
4. Reach a conclusion. (Socrates is mortal and will die)
Ÿ         Owens v. State: Book p. 14. D convicted of a DWI and contends on appeal that the evidence was insufficient to convict. D was sitting in car on driveway, w/ empty beer bottles.
1. What are the elements of the crime?
           a. drunk
           b. driving on highway
           c. highway/ not private driveway
2. What do the elements mean? 
           a. drunk- signified by BAL
           b. highway- public road, not private driveway
           c. know, aware of his actions
3. Apply elements to facts.
           a. He was drunk. Appearance of empty beer bottles
           b. Contested issue- was he driving on a public highway when he was drunk?
Ÿ         Asleep at wheel, lights on, motor running
Ÿ         Inference- had been driving vehicle. Why- one does not usually drink in house then carry empties to vehicle.
Ÿ         Inference- D had been drinking before. One does not normally pass out before drinking, one does so after.
Ÿ         Therefore, D had been driving on a highway prior to falling asleep.
II. Actus Reus (guilty act)
Ÿ         POLICY- not simply punishing guilty thoughts. A society like this would be intolerable, punishing is not to purify thoughts and perfect character, morally wrong to punish people for unacted upon intentions, gives people the opportunity to choose not to act, difficult to prove thoughts. *Think about Minority Report. 
Ÿ         Actus reus is to be interpreted as the comprehensive notion of act, harm, and its connecting link, causation, with actus expressing the voluntary physical movement in the sense of conduct and reus expressing the fact that this conduct results in a certain proscribed harm, i.e. that is “causes” an injury to the legal interest protected in that crime.
A. Physical Element of a crime: 2 components must occur at the same time.
                        1. Voluntary
                        2. Conduct
1.      voluntary act: bodily movement MPC 1.13(2)
2.      voluntary omission: failure to act MPC 1.13(4)
3.      possession: MPC 2.01(4)
Ÿ         MPC § 1.13: Act- bodily movement whether voluntary or involuntary.
Ÿ         MPC § 2.01: Voluntary- has no definition of voluntary, but defines what is        involuntary.
a.       reflex or convulsion
b.      a bodily movement during unconsciousness or sleep
c.       conduct during hypnosis or resulting from hypnotic suggestion (very      controversial)
d.      bodily movement that otherwise is not a product of the effort or determination by the actor, either conscious or habitual.
Ÿ         Martin v. State : Book  p. 122. Public drunkenness. D was at home, but police arrived, pulled D outside. Was arrested.
            1. Act- there was bodily movement under MPC § 1.13.
            2. Voluntary- the act was not voluntary under MPC § 2.01
Ÿ         RULE: Criminal liability must be based on conduct which includes a voluntary act or omission to act which was physically possible to have been performed.
Ÿ         State v. Utter: Book p. 124. D killed his son, but had no recollection of the killing. Claims that the killing stemmed from a conditional response. Claims he was not exercising his own will. This would fall under unconscious under the MPC, consistent w/ common law. Asserts that the Court should not have disregarded this evidence on conditioned response.
      1. Court agrees that this condition is not voluntary, however D failed to produce evidence to establish he suffered from this condition.
Ÿ         RULE: Common Law definition of voluntary means an exercise of choice.
B. POSSESSION: MPC § 2.01(4): an act if the possessor knowingly procured or received the thing possessed or was aware of his control thereof for a sufficient period to have been able to terminate his possession (thus a voluntary act must be proven.)
Ÿ         2 Concepts:
            a. awareness of what you are in control of
            b. sufficient time to dispose.
Ÿ         Dressler Supp. p 93:“Possession crimes do not necessarily dispense w/ the act requirement. Courts interpret possession statutes to require proof that the defendant knowingly procured or received the property possessed (thus a voluntary act must be proven), or that she failed to dispose herself of the object after she became aware of its presence (omission). In the latter case, ‘possession’ is equivalent to an omission, in which the def. has a statutory duty to dispossess herself of the property. She is not guilty if the contraband was ‘planted’ on her, and she did not have a sufficient time to terminate her possession after she learned of the presence.”
Ÿ         State v. Flaherty: Clancy Supp. p.1: D was a convict. Had gone hunting & drinking w/ friends. D finds friend’s gun in backseat while driving home. D turned around to return gun. Was charged w/ felony- convicts can’t have guns.
Ÿ         Possession does not involve bodily movement necessarily.
Ÿ         The statute here was identical to MPC.
Ÿ         Elements: possession of a firearm, by a felon (actus reus); knowingly (mens rea).
Ÿ         Contested element is possession, because defendant was not a

tes social harm.)
III. Mens Rea- “guilty mind”. “A dog knows the difference between being stumbled over and kicked.”- Oliver W. Holmes.
Ÿ                  Policy- deterrence, those who act w/ a harmless mind are virtually harmless to society; flows from society’s commitment to individual choice.
        Dressler Supp, 115-117
Ÿ         In ancient English law, criminal responsibility was based solely on proof of the commission of an actus reus.
Ÿ         The existence of mens rea as a prerequisite to criminal responsibility “is the rule of, rather than the exception to, the principles of Anglo-American criminal jurisprudence.”
Ÿ         Mens Rea is defined as a “general immorality of motive”, “vicious will”, or an “evil-meaning mind.” ”According to this definition of mens rea, guilt for an offense is not dependant on proof that an actor caused the proscribed harm with any specific mental state.”
Ÿ         “Mens rea” may also be defined as “the particular mental state provided for in the definition of an offense. This is the elemental meaning of mens rea. A person may possess “mens rea” in the culpability sense of the term, and yet lack the requisite “mens rea”. The mens rea, the particular mental state provided for in the definition of the offense- is intentional. Applying the elemental meanings of mens rea, D is guilty of murder if he intentionally kills another. However if he kills unintentionally, albeit with a morally blameworthy state of mind (for example, he recklessly takes another’s life) he would not be guilty of murder, because he lacked the particular mental state required in the definition of the offense.
A. Approaches to Mens Rea:
1. Culpability Approach- wantonness, malicious intent, willfulness, felonious intent, scienter, criminal intent
Ÿ         Regina v. Cunningham-P was partially asphyxiated by seeping gas after D stole the gas meter from the basement of her house.  D was charged and convicted for the injury to victim. A person shall not maliciously poison another and thereby endanger the other’s life.
Ÿ         Culpability- here the trial court used the culpability approach, defining malice as “WICKEDNESS”.
Ÿ         Elemental- the appellate court used the elemental approach, stating that the jury was to decide if there was malice.
Ÿ         Malice-
1. An actual intention to do the particular kind of harm that was in fact done.
2. Recklessness as to whether such harm could occur or not (the accused has foreseen that the particular harm could be done, and yet has taken the risk anyway.
Ÿ         Rule- Malice requires either an actual intention to do the particular kind of harm that was in fact done or recklessness as to whether such harm should occur or not.
            2. Elemental- (modern view) broken down 5 mental states under the MPC. “Particular mental state provided in a definition for a defense.”
a. Purpose- (specific intent)
b. knowledge- (general intent)
c. Recklessness- (conscious disregard of consequences)
d. Negligence- (should have been aware of the risk)