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Criminal Law
University of Mississippi School of Law
Hoffheimer, Michael

Criminal Law
Professor Hoffheimer
Spring 2002
Joshua L. Rogers
I. Basic Culpability Doctrines
            Part I: The Traditional Concepts
A. Sources of Law – Always ask yourself what the source of legal authority is.
§         Common Law
o       Historical sense – the English origins of a law
o       Development of law in American jurisdictions
§         Model Penal Code
o       Developed by thinkers who felt that there was enough of a consensus to hammer out a standard
o       Never intended to be adopted verbatim; it’s more of a suggestion
o       No state has ever adopted the MPC from beginning to end
o       It is not the Common Law
o       Many states have adopted portions of the MPC into their law; MS has not
§         MS Law
B. Purpose of Criminal Law
§         The thing that is distinctive about criminal law is that it is designed to punish the offender.
§         Four rationalizations for punishing the offender:
1.      Incapacitation – theory for neutralizing people who might do harm butare not necessarily morally blameworthy (e.g. the lady who was put in Parchman because she had TB and refused to get help).
2.      Retribution – getting even with those who have caused harm touches an emotional need to fire back at someone. 
§         The problem:
o       The “got you last” effect
o       Sometimes retribution is not available (e.g. when someone commits suicide)
o       Sometimes retribution would create another wrong (e.g. torturing someone for what they did wrong)
3.      Deterrence – discouraging a certain type of behavior
§         Specific Deterrence – deterring a particular individual from doing something wrong (e.g. we don’t want Bob robbing the Kroger gas station again)
§         General Deterrence – deterring the general public from doing something wrong by punishing one person
§         The Problem:
o       We don’t know how effective it is.
o       What we do know is that, to some degree, the effect of deterrence seems to be greater based on how great the punishment is. However, juries are more reluctant to enforce more severe punishments.
4.      Rehabilitation – trying to deter someone from committing crimes by attempting to give their soul a makeover. 
§         The Problem:
o       We’re not sure that it works.
o       Some adults might feel that they’re not being treated with dignity.
C. Some Criminal Law-Related Terms
§         Habeas Corpus – civil procedure to test the legality of someone’s confinement. In the United States, it prevents Congress from suspending an inquiry into someone’s confinement.
§         Bill of Attainder – special legislative act providing capital punishment without a trial for a person guilty of a high offense such as treason or a felony; prohibited by the Constitution.
§         Treason – attempting to overthrow the government of the state to which one owes allegiance, either by making war or materially supporting its enemies
§         Bill of Rights – defines the situations in which a politically organized society will permit free, spontaneous, and individual activity, and guaranteeing that government power will not be used in certain ways
§         Corpus Delecti – “the body of the crime,” does not mean that there must be a dead body in evidence. It refers to:
o       The material or substance upon which a crime was committed (e.g. a body, house, etc.)
o       The substantive fact of crime; evidence of act and agency.
D. The Stages of Criminal Procedure
1.      There’s a crime that someone claims has been committed
2.      Leads to an arrest
3.      Initial appearance
o       Opportunity to form a charge
o       See if bail is a possibility
4.      Preliminary hearing
o       Judge must determine if there is a probable cause over which the grand jury might bind the accused
5.      Grand Jury
o       Must decide if there will be an indictment (i.e. a formal charge)
6.      Arraignment
o       D is brought into the court and read the indictment
o       D enters a plea (e.g. guilty, not guilty)
7.      Trial
o       Jury must swear to return a true verdict
o       Right to a jury trial may be waived, and then there is a bench trial
o       The critical point in the case is when the judge gives instructions to the jury
o       After instructions, jury finds a verdict
o       After verdict, sentencing
§         If you’re the D, it would be preferable to have some distance of time between the verdict and the sentencing. That way, they’ll have a distance between hearing the victims testify about how angry they are and deciding what to do with the perpetrator of the crime.
§         If you choose to appeal, remember that you file your appeal in the county trial court.
E. The Common Law Approach to Criminal Law
§         Criminal Law in MS: MS follows the Common Law approach.
§         Elements – When you have several different elements of a crime:
o       They must all be proven with evidence in order to convict someone of the crime.
§         Under US law, due process requires the element to be proven beyond a reasonable doubt.
o       Furthermore, the jury must be properly instructed on each element
o       How it works:
§         E.g. in Faulkner, three of the elements of the crime were setting fire, setting fire maliciously, and doing so to a ship. 
§         If someone sets fire to a dock, or does it accidentally, then they are not guilty of that crime.
§         Mens Rea (intent): There must be a “culpable state of mind.” 
o       Words that have been used (sometimes confusingly) to describe mens rea: maliciously, willfully, feloniously
o       U.S. v. Yermian: There must be mens rea with every criminal conviction unless it’s a jurisdictional question.
§         E.g. you may have to “knowingly” and “willfully” make false statements, but you do not have to “knowingly” and “willfully” do so within the jurisdiction of the federal government in order to be convicted of the jurisdictional element of the crime.
§         Actus reus: An accused must have committed a criminal act to be convicted; the law does not punish thoughts that are not acted out.
o       The act normally consists of a prohibited physical act, but it may consist of an omission where there is a duty to act.
§         Mens rea established traditionally with one of three states of mind:
o       General intent: the volitional doing of the prohibited act
§         E.g. recklessness (involving actual awareness of a risk and the culpable taking of that risk).
o       Specific intent: requires some intent to do something more than merely the proscribed act; the intent to accomplish the precise criminal act with which one is later charged
§         E.g. robbery, assault, burglary, forgery, etc.
§         General Rule for Specific Intent: An honest and reasonable mistake of fact is a defense because there is a mental element that attaches to all of the elements of defense.
·         Majority Exception: Statutory rape
o       Criminal Negligence: involves a gross breach of a duty to care
§         Voluntary Intoxication:
o       The Rule: Voluntary intoxication is a defense to crimes of specific intent but not to crimes of general intent.
§         The Problem with this Exception: No one has been able to really explain why this distinction makes sense, or even how we are to tell the difference between specific and general intent.
§         The Solution: Many modern codes, and the Model Penal Code, have abandoned the general/specific distinction, and instead set forth the precise mental state required for each element of each crime.
o       Voluntary Intoxication in MS (from McDaniel v. State): It is not available as a defense if:
1.      The defendant was able to tell the difference between right and wrong, or
2.      The defendant voluntarily prevents himself from distinguishing from right and wrong by getting drunk
In other words, in MS, voluntary intoxication is almost never going to be a defense to crime.
F. Mistake of Law
§         Generally no defense: as a general rule, “mistake of law is no defense.” More precisely, this means that the fact that the defendant mistakenly believes that no statute makes his conduct a crime does not furnish a defense.
o       Example: Defendant, who is retarded, does not realize that unconsented-to intercourse is a crime. Defendant has unconsented-to intercourse with the victim. Defendant’s ignorance that unconsented-to intercourse is a crime will not be a defense; so long as defendant intended the act of intercourse while knowing that the victim did not consent, he is guilty.
o       No “reasonable mistake” exception: So long as the crime is not itself defined in a way that makes defendant’s guilty knowledge a prerequisite, there is usually no “reasonable mistake” exception to the “mistake of law is no defense” rule.
§         It is important to remember that the oft-stated rule, “Ignorance of the law is no excuse,” really only means “Ignorance that a statute makes one’s conduct a crime is no excuse.” A mistake of law as to some collateral fact may negative the required mental state, just as a mistake of fact may do so.
o       Example: D reasonably believes that he has been divorced from W, his first wife, but in fact the “divorce” is an invalid foreign decree, which is not recognized under local law. D then marries V. D’s “mistake of law” about the enforceability of the prior divorce will negative the intent needed for bigamy. 
§         However, if he’s married to five women, but isn’t aware that his state has an anti-bigamy law; he has no defense of ignorance.
§         Innocent or Passive Conduct: A person will probably not be convicted of a crime when it is entirely innocent or passive (i.e. they haven’t done something that, like other criminal acts, should put them on notice, Lambert).
§         Unclear Statutes: How the court construes criminal statutes that are ambiguous:
o       “Rule of Lenity” – principle that ambiguous criminal statutes should be construed in favor of the defendant. 
§         Under this rule, there is a requirement of mens rea unless the crime at issue is a strict liability crime.
o       The Problem – When the legislature doesn’t specify what the required mental element for the crime is, the result is courtroom battles over what mental element is required.
§         Extraordinary cases of mistake of law dealing with mental element:
o       Long: Ignorance of the law is allowed when a man’s lawyer tells him that his divorce is valid in another state and the man unknowingly commits bigamy.
o       Erhlichman: Someone who has been “authorized” by the president to do something illegal is not excused for thinking that the president had the authority to request such a thing.
Part II: Distinguishing between Malum Prohibitum and Mal in Se Crimes
A. Malum prohibitum vs. mal in se
§         Malum prohibitum – a crime that may not be morally wrong, and is not dangerous in itself, but violates a public welfare regulation
o       Most of these came about in the last century and a half since most of our new areas of legislative activity took place after the Civil War.
o       No culpable mental state is required for these types of crimes.
§         Mal in se – a crime that is considered morally wrong, has traditionally been considered morally wrong, and is dangerous in itself
o       A culpable mental state is required for these types of crimes.
§         Who would you rather defend? A client who is guilty of a crime that is mal in se because in that case, the state would be required to prove more in order for your client to be convicted.
B. Criminal Intent and Silent Statutes – Balint and Morissette approaches:
§         Balint: Man convicted of selling a substance that had just been prohibited because he didn’t fill out the appropriate tax form before selling it. Court determined that it would frustrate legislative purposes to require mens rea for the crime. After Balint, prosecutors had the idea that unless there was a specific mens rea requirement, courts were going to rule in their favor.
o       Many of the federal crimes are based on Congress’ power to raise taxes, the “necessary and proper” clause, or the Commerce Clause. It gives Congress something on which to hang its hat.
§         Morissette: Case where the man recycled the bomb casings for money, violating a federal law against knowingly stealing and converting U.S. property. The Court says some type of mens rea is required.
o       Court uses Morissette to clarify: Court says that Balint only applies to public welfare cases (i.e. offenses adopted for the public good).
§         E.g. dumping trash in the ocean, selling bad milk, selling cocaine derivatives without filling out the proper forms.
o       Essentially, the Court is drawing a clear line between malum prohibitum (like Balint) and mal in se (Common Law offenses like stealing, rape, or murder).
§         Typical Situation: All of the elements of a crime are present, but defendant says he didn’t do it with criminal intent. 
o       Note: When we talk about a mens rea, there’s some level of mens rea for all of the elements. When we talk about crimes that are strict liability we’re talking about crimes that are based on one element. Usually in these cases that one element is the thing being challenged. 
§         Determining what type of offense the legislature intended:
o       Typically, some level of mens rea is required. The exception is statutory crimes where a requirement of mens rea would frustrate the legislative purpose of the statute.
o       Therefore, it’s up to the court to determine legislative intent (by attempting to discern whether it’s a malum prohibitum or mal in se crime).
§         What a legislature can do to clear these kinds of issues up: State specifically, “There IS/IS NOT a mens rea requirement,” when drafting the legislation.
§         What all of this adds up to: Since a case may rest upon the distinction of whether the crime is malum prohibitum or mal in se the main task will be determining legislative intent.
C. Hoffheimer’s Guidelines in Determining Legislative Intent
1.      History of the Statute – How old is this crime? The older the crime, the more likely it is a mal in se crime. The younger the crime, the more likely it is a malum prohibitum crime.
2.      Tradition – Is it an offense that is traditionally considered immoral? If so, then probably mal in se.
3.      Objective – What’s the objective of the criminal law at issue? Is it attempting to punish an individual for wrongdoing or is it attempting to prevent risks or dangers to the public for the good of some larger policy objective? If the latter, probably malum prohibitum.
4.      Amount of Regulation – Is it an area of extensive regulation with a variety of various criminal regulations (e.g. tax law, environmental law, drug enforcement)? If so, probably malum prohibitum.
5.      Potential Hazard – Does the activity pose a risk of great harm to many people? If so, probably malum prohibitum.
6.      Severity – the more severe the punishment in the statute the more likely the crime is mal in se.
§         Note: None of these guidelines are absolutely reliable, and a lot of them overlap. They’re just guidelines to legislative purpose.
Part III: The Conduct Requirement
A. Unconsciousness
o       Rule: Where not self-induced, unconsciousness (a “fugue state”) is a complete defense to a crime (from Newton). A bodily movement is not “conduct” unless it is voluntary, i.e. directed by the will. Otherwise, there’s no liability for the crime.
§         Remember: Defendant’s claim that an act was not voluntary because he was unconscious does not have to be specially pleaded, and the defendant does not have to prove he was unconscious. He must only prove that there is a reasonable doubt on the matter.
o       Model Penal Code: The MPC effectively recognizes the defense. Defendant is not liable if he does not commit a “voluntary act,” and a “voluntary act” is defined so as to exclude a “reflex or convulsion” or movement during “unconsciousness.” See outline of MPC §2.01(1) and (2) infra.  
o       Jury Instructions: The jury must be instructed on the requirement that the act be voluntary when there is the possibility that the act was done automatically.
o       Recognized Instances: Automatism may be caused by physical trauma, sleepwalking, epileptic seizures, and has even been recognized in cases of hypnosis (though there has been much debate over how much hypnosis deprives some of the free will to do something).
B. Omissions
o       General Rule: In most situations, there is no criminal liability for an omission to act (as opposed to an affirmative act).
o       Existence of legal duty: There are some “special situations” where courts deem defendant to have a special legal duty to act:
§         Statute: Defendant’s omission may be punished under a statute that speaks in terms of positive acts (e.g. “You must drive the speed limit”).
§         Contract: Similarly, a legal duty may arise out of a contract (e.g. the Pestinikas case where the couple contracted with the older gentleman to take care of him, but they actually ended up starving him to death).
§         Special relationship: Where defendant and victim have a special relationship — most notably a close blood relationship – defendant will be criminally liable for a failure to act. Other relationships that fall

because the mental state is based on a reasonable person standard.
o       Potential defense: Automatism. It should probably be given to the jury if there’s proper evidence of it. However, there is a valid concern with the public policy implications of allowing someone such a defense. Anyone could claim they were acting automatically when they were irresponsibly drunk.
§               Marrero
o       Rule: A misinterpretation of a statute is not a valid defense to a crime that does not require an intent to violate the statute. 
o       The man tried to say that he made a good faith mistake of law. Court says that since intent is not required for this violation, mistake of law is no defense. 
o       The narrow defense of mistake of law is intended to encourage adherence to the law. D’s proposed defense would encourage mistakes about the law.
II. Discretion and the Rule of Law
Part I: Constitutional Limits on Criminalizing Conduct
A. Due Process Requirement: The constitutional requirement of due process mandates that a criminal statute specify precisely what conduct is punishable. A criminal statute may be unconstitutionally vague if it fails to define the offense clearly enough to either (i) discourage arbitrary and discriminatory application or (ii) put ordinary people on notice as to what conduct is prohibited. 
§         Need for rules: The notion of a government of laws requires that citizens know in advance what conduct is legal. The Constitution prohibits laws that would impose retroactively a change in the definition of a crime or a punishment.
§         Need for discretion: Society can implement its criminal laws only through officials responsible to exercise discretion. The institutions created to permit discretion can lead to abusive action. The conflict between rules and discretion requires examination of criminal procedure. 
B. Vagueness: A statute violates due process when:
§         It doesn’t provide fair notice for persons of ordinary intelligence.
§         It encourages arbitrary and erratic law enforcement
Note: The more specific a statute, the more fair notice has been given. 
C. An Exception to First Amendment Protection: “Fighting Words”
§         “Fighting Words”: Words that have the substantial tendency to provoke violent retaliation or other wrongful conduct in the average person
§         Statute problem: There’s a problem when a statute prohibits “abusive and obscene language.” This could be overbroad and not just cover “fighting words” but criminalize behavior that’s constitutionally protected. 
o   The test for overbreadth: A statute is probably overbroad if, like the court held in State v. Anonymous, defendant could be convicted of a crime based on a verbal assault without the jury’s finding that defendant uttered “fighting words” – essentially, when the state is allowed to use criminal law to regulate non-criminal behavior.
D. Mens Rea Requirement: The majority of courts hold that a mens rea requirement in the statute will relieve the statute of being objected to on the grounds that it punishes without warning of an offense of which the accused was unaware (Screws). 
Part II: Sentencing Discretion
A. Problem with sentences: they are often clearly defined but overbroad in terms of speech.
§         E.g. the case of the mom who put her kids on a dangerous veggie diet and refused to properly nourish them (Pointer). Part of her sentence was that she was prohibited from having children during the probationary period.  
B. Challenging a sentence based on unreasonableness and overbreadth (from Pointer):
§         D argued that her sentence was unreasonable (a general challenge to a sentence):
o       Three part reasonableness test for a sentence (from Pointer): A condition of probation will not be held invalid unless it…
1. Has no relationship to the crime of which the offender was convicted
2. Relates to conduct which is not in itself criminal
3. Requires or forbids conduct which is not reasonably related to future criminality.
Holding: The court held that her sentence was reasonable.
§         D argued that the sentence was overbroad (a claim that is limited to fundamental rights, and one that is a strict sort of scrutiny):
o       Test for overbreadth of a sentence: Look at whether the sentence is:
1. Entirely necessary (not just “related”) to serve the dual purposes of
2. Rehabilitation and
3. Public Safety
Note: These requirements leave us asking ourselves if there is some less restrictive requirement. The theoretically less restrictive requirements leave us asking ourselves if they are actually realistically applicable (especially in the Pointer case).
Holding: The court proposed an alternative and held that the sentence was overbroad.
C. Challenging a sentence based on disparate sentences (from Ely):
§         D argued that the court abused its discretion when it gave D twice the sentence that it gave his co-criminals for the same crime.
o       Determining whether a disparate judgment was inappropriate: There has been an abuse of discretion if:
1.   The court used improper information in making the judgment (e.g. if a court used information from unrelated past crimes, it would be improper unless it was used to establish behavior patterns).
2.   No discretion used at all (e.g. the judge always sentences the maximum amount regardless of the crime).
Note: “The short answer is that there’s nothing you can do when a judge exercises his discretion but just happens to be more punitive.” – Hoffheimer
D. Challenging a sentence based on abuse of discretion standard of review (from Oxborrow):
§         D argued that the appellate court should have applied an abuse of discretion standard of review to his sentence and reduced it.
o       Determining whether an exceptional sentence should be reversed:
A court may not reverse an exceptional sentence unless:
1. The sentencing judge’s reasons are not supported by the record or do not justify the sentence, or
2. The sentence is clearly excessive or clearly too lenient.
E. Challenging a sentence based on the admission of the victim’s input (from Stringham and Booth):
§         Stringham: D argued that victim’s father had no right to come in and make a statement about the propriety of D’s plea bargain during the first hearing of the case. 
§         Holding: The first hearing was a sentencing proceeding, even though it was not limited to the arraignment and pronouncement of sentence.
§         Booth: Supreme Court held that a victim impact statement could not be used at the sentencing phase of a capital murder trial because it would only inflame the jury. That decision was limited to capital cases.
§         Distinguishing Stringham and Booth:
1. Stringham wasn’t a capital murder case. 
 The statement of the dad wasn’t made to a fact finder at the sentencing phase of a capital trial; it was made to the court as part of a procedural hearing of a second degree murder and kidnapping