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Criminal Law
University of Mississippi School of Law
Green, Christopher

Spring 2007

Right to Trial by Jury:
§ 6th Amendment gives right to trial by jury for criminal cases (State and Fed).
§ 7th Amendment gives right to trial by jury in civil cases (Fed only).
§ Most states require 12 jurors and a unanimous verdict.
§ The Constitution permits juries as small as 6, but require a substantial majority.

Burden of Proof:
§ Prosecution must prove every element of a crime beyond a reasonable doubt.
§ Proof beyond a reasonable doubt can be proved by a totality of the surrounding circumstances.

Jury Nullification:
§ Jurors have the power to acquit a person they believe beyond a reasonable doubt is guilty, if they wish to disregard the law for moral or other reasons.
§ And the Jury’s verdict is non-reversible (5th Amendment: no “double jeopardy”).
§ While the power to nullify exists, there is NO right to nullify.

Theories of Criminal Punishment:
§ Deterrence:
o General Deterrence: D is punished in order to deter the general public from certain acts. D is used as a means to a desired end.
o Specific Deterrence: deter future misconduct of specific D.
§ Incapacitation: D cannot commit crimes during the period of segregation/isolation.
§ Reformation/Rehabilitation: Punish the Ds not to hurt but to make them better people (reform).
§ Retribution: Punishment is justified when it is deserved (Just Deserts/Eye for Eye)

Necessity/Choice of Evils (Justification Defense).


§ 3.01: Justification an Affirmative Defense; Civil Remedies Unaffected
(1) Justification is an affirmative defense
(2) But it does not abolish or impair any civil remedy.

§ 3.02: Justification Generally: Choice of Evils—Conduct is justifiable if:
(1) Actor must believe conduct to be necessary to avoid a harm or evil to himself or to another. (Subjective)
(a) The harm or evil avoided must be greater than the harm or evil committed. (Jury weighs)
(b) The specific law must provide no other exceptions or defenses, and the legislature cannot have specifically excluded Necessity as a defense.
(2) The Defense is NOT available if the actor was reckless or negligent in bringing about the situation or in appraising it and the offense committed has an element of recklessness or negligence.


Necessity is NOT a defense


Necessity IS a defense, provided that:
1) Act done to prevent significant evil.
2) No adequate alternative.
3) Harm caused must NOT have been disproportionate to harm avoided.
4) Actor must have a reasonable belief that imminent danger of death OR serious bodily harm exists.

Note: In MS, necessity is NOT a defense for drunk driving, even if in an emergency, e.g. taking wife to hospital to deliver baby.


Rule: A person is not guilty of an offense unless her conduct, which must include a voluntary act (the actus reus of the offense), and which must be accompanied by a culpable state of mind (the mens rea of the offense), is the actual and proximate cause of the social harm, as proscribed by the offense.

ACTUS REUS: A Voluntary Act is required to be liable for an offense.
§ Act—Any conscious bodily movement that is done by movement or by habit.

§ MPC § 2.01: Requirement of a Voluntary Act
(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
(2) The following are NOT voluntary acts:
(a) reflex or convulsion
(b) unconscious movement, e.g. sleepwalking, conditioned response, automatism
(c) hypnosis
(d) bodily movement that otherwise is NOT the product of the effort or determination of the actor
(3) No liability for omission to act unless:
(a) the omission is made illegal by law
(b) duty to act is imposed by law
(4) Possession is an act if:
(a) The possessor knowingly procured or received the thing possessed; or
(b) Was aware of his control thereof for a sufficient period to have been able to terminate his possession.

MENS REA: A Guilty Mind is also required to be liable for an act.
§ Intent—Requires a conscious objective or purpose.
§ Inferences of Intent may be made from conduct. Actions speak louder than words.
§ Transferred Intent: D intends to shoot and kill X, but misses and kills Y.
o C/L: transfers intent from X to Y; D need only have intent to kill someone.
o MPC: does it through causation; D is responsible for unintended results

§ General v. Specific Intent:
o Specific: Elemental mens rea approach; intentional or knowingly harming a particular person or causing a particular result (the mental state the D must have had w/ regard to the “social harm” elements set out in the definition of the crime)
o General: Not specific intent (guilty mind; vicious will, moral blameworthiness, malice)

MPC § 2.02: General Requirements of Culpability
(1) Minimum Requirements of Culpability. A person is not guilty of an offense unless he acted purposely, knowingly, recklessly, or negligently, as the law may require, with respect to each material element of the offense.
(2) Kinds of Culpability Defined
b. Purposely- conscious object to engage in conduct or cause result; or is aware/believes/hopes that circumstances exist
c. Knowingly- practically certain that result will occur; or is aware of unlawful nature of conduct or that circumstances exist
d. Recklessly- conscious disregard of a substantial and unjustifiable risk that involves a gross deviation from conduct of a law-abiding person in the situation
e. Negligently- should be aware of a substantial and unjustifiable risk but failure to perceive it involves a gross deviation from the standard of a RPP in the situation
(3) Culpability Required Unless Otherwise Provided. When the culpability sufficient to establish a material element of an offense is not prescribed by law, such element is established if a person acts purposely, knowin

ct, based on the facts as he believes them to be, constitutes a crime, he may be convicted of the more serious offense of which he is guilty.


Closer to C/L than MPC

Mistake of Law:


§ 2.02(9): Culpability as to Illegality of Conduct.
There is no defense based on a mistake as to the existence, meaning or application of a law, unless the specific code provides.

§ 2.04(3):
Belief that conduct does not constitute an offense is NOT a defense unless:
a) the statute hasn’t been published, or
b) D reasonably relied on an official (erroneous) statement of the law by a party that has duty of enforcing/applying/interpreting the law.


Mistake (ignorance) of law is NO excuse.
§ Reasonable Reliance: D is excused for reasonably relying on an official statement of the law, later determined to be erroneous, obtained from a person or public body w/ responsibility for the interpretation, administration or enforcement of the law defining the offense.
§ Fair Notice: If public isnot made aware, would be a due process defense.
§ Statutes Requiring one to Know the Law are Rare.


Closer to C/L than MPC

§ Criminal Law requires the act to be the But For and/or Proximate (Legal) cause.
§ Only result crimes require a causation analysis.

Cause in Fact: Eliminates candidates for responsibility.
§ But-for Cause: The social harm would not have occurred but for the D’s act.
§ Multiple But-for Causes:
o Acceleration theory: Must show acceleration of the harm. But for the voluntary act, would the social harm have occurred when it did?
o Substantial factor test: 2 concurrent causes, where either simultaneous and independent cause would have killed victim. But for D’s voluntary act, would the social harm have occurred when and as it did?

Proximate (Legal) Cause: Public policy decision to determine which person or events that satisfy the cause-in-fact analysis should be held accountable for the resulting harm and upon whom to impose criminal liability.