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Criminal Law
University of Mississippi School of Law
Green, Christopher

Criminal Law Outline
Professor Green Spring 2007
I   Constitution v. 10 Commandments
           Elements of criminal law seen in both documents.
·         II. Crime –an act or omission and its accompanying state of mind which, if duly shown to take place, will incur a formal and solemn pronouncement of the moral condemnation of society.
§ Paradigm of a crime: (a) Badly-motivated people (b) do something (c) that causes (d) results
§ Note just: any social harm defined and made punishable by law.
§ Three Sources of Criminal Law:
·         Common Law
·         Statutory Law [most important] ·         Constitutional Law 
·         Function of Criminal Law- It is not simply anything which a legislature chooses to call a crime. It is conduct which, if duly shown to have taken place, will incur a formal and solemn pronouncement of the moral condemnation of the community. [Moral condemnation of the accused] ·         Malum Prohibitum – wrong because it is prohibited [Legislation is more important] ·         Malum in Se – Wrong in itself
B.    Classification of crimes:
·         Felony- an offense punishable by death or imprisonment in a state prison.
·         Misdemeanor- an offense for which the maximum punishment is a monetary fine, incarceration in local jail, or both.
C.    Proving Guilt At Trial
·         Right to Trial by Jury –
                                                         1.      Sixth Amendment of the US Constitution- provides that in all criminal prosecutions, the accused shall enjoy the right to a speedy and public trial, by an impartial jury. [applies in all state and federal criminal proceedings]                                                          2.      The jury trial right only applies to non-petty offenses.
·         Scope of the Right-
1.     In the Fed. cts. and in most states, a jury in a criminal trial is composed of 12 persons who must reach a unanimous verdict to convict or acquit.
o    Note: Juries as small as 6 are constitutional.
2.     B/c the jury system is meant to protect an accused from governmental oppression and to provide her w/ the common-sense judgment of the community, a ∆ is entitled to a jury drawn from a pool of persons constituting a fair cross-section of the community.
§ Owens v. State:
·         Circumstantial evidence suggested drunk man in drivers seat had been driving. He was convicted of driving while intoxicated on a public highway even though he was found in a private driveway.
o    Carter v. KY: No judge can prevent jurors from speculating about why a ∆ stands mute in the face of a criminal accusation, but a judge can, and must, if requested to do so, use the unique power of jury instruction to reduce that speculation to a minimum.
D.   Burden of Proof [Presumption of Innocence] ·         Two Questions:
                                                         1.      Who has the burden of proof? (prosecutor)
                                                         2.      What standard of proof should the government have to reach? (beyond a reasonable doubt)
§ Justice Harlan: “It is far worse to convict an inno

§ E & E Def: Punishment is suffering purposely inflicted by the state because of its laws was violated.
a.     4 Purposes of Punishment:
                                         i.    Incapacitation – Important function of prisons, but not distinctive of the criminal law – we lock up insane people too, but not as punishment.
                                        ii.    Rehabilitation- Most people think it doe not work very well, though the term “penitentiary” suggests the aim.
                                       iii.    Deterrence- frightens people away from crime
                                      iv.    Retribution- punish people b/c it is the right thing to do.
b.    Two Big Issues:
                                     i.    Is retribution an essential, necessary ingredient to punishment?
                                    ii.    Is retribution a sufficient justification for punishment, or is deterrence needed too?
A.    Theories of Punishment:
1.    Utilitarianism – (formulated by Jeremy Bentham) [Maximum utility = happiness minus pain] o    Two Flavors:
1.    Rule Utilitarianism: adopt the rules that will maximize utility overall.
2.    Act Utilitarianism: perform the actions that will maximize utility overall.