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Criminal Law
University of Mississippi School of Law
Hoffheimer, Michael

Criminal Law – 1997
Joey Dudek
A.  Overview
·         Authority to make an arrest depends upon probable cause: the existence of a factual basis to support that:
1.     a crime was committed
2.     arrested person committed crime
·         Procedure of criminal law:
1.     arrest
2.     appearance – D informed of charges & bail set, if bailable offense
3.     preliminary hearing – ct determines whether there enough evidence against D to proceed
4.     grand jury – required in most jurisdiction for felonies
– either brings back indictment or finding of ignoramus
5.     arraignment – opportunity to enter a plea
6.     trial – constitutional right to jury trial
7.     sentencing –
8.     appeal- notice of appeal filed in trial ct
·         5 theories of punishment
1.     incapacitation –
·         prevent criminals from committing further crimes
·         future protection of society is goal
·         problems:
n      not unique to criminals; crazy people incapacitated
n      people who commit very serious crimes not necessarily predisposed to doing it again
2.     retribution –
·         getting even, getting what they deserve
·         “eye for an eye”
·         probably most popular theory
·         problems:
n      is it right?
n      equations for the crimes (i.e. 6 mos for larceny)
n      wrongful convictions
3.     deterrence –
·         deter future crime by others and actor
·         2 types of deterrence:
1.      Specific: Ex: spanking a child for doing something wrong in order to deter child from recommitting crime
2.      General: Ex: spanking child in front of siblings in order to deter siblings from committing same crime
·         problems:
n      deterrence may not be as effective in the real world as people would like
n      certainty of punishment more of deterrence than length of punishment
4.     rehabilitation –
·         makes criminals better people
·         problems:
n      locking people up makes them worse criminals
n      what business does state have in trying to make people better? (philosophical argument)
5.     education/denunciation –
·         punish to educate rest of society as to what norms are
·         problems:
n      should we punish people for the purpose of “making an example”?
·         Jurisdiction and venue are established by:
1.     D presence in state, and
2.     some element of the crime took place in state
B.    Necessity and nature of crime
·         Common law: there is no “necessity” defense to murder b/c there is no necessity to live
·         Common law does not recognize necessity
·         MPC (§ 3.02): Justification: “choice of evils”
·         necessity defense/justification CAN be established if following conditions are met:
1.     D believes that his action is a necessity (subjective)
2.     harm D seeks to avoid must be > than harm law seeks to avoid
3.     If D caused the necessity of choosing between 2 evils by his recklessness or negligence, defense is NOT available
·         MS: seems to take a stance somewhere between c/l and mpc
·         Knight v. State:
n      holding: where a person reasonably believes that he is in danger of physical harm, he may be excused from some conduct which would ordinarily be criminal
n      only been applied to leaving scene of accident
C.    Basic requirements for criminal liability
1.     Mens Rea
·         For there to culpability for ANY crime there must be a requisite mens rea
·         mens rea: “guilty mind”; guilty or wrongful purpose; criminal intent
·         MPC §2.02:
n      a person is not guilty of offense unless he acted purposefully, knowingly, recklessly, or negligently with respect to EACH MATERIAL ELEMENT of the offense
n      recklessness is the default level of culpability under the MPC
n      If MPC is silent on level of culpability, must have at least recklessness
n      If statute is silent on issue, negligence does NOT establish culpability
·         explanation of levels:
1.     purposeful: conscious object to engage in conduct; want the consequence to happen
2.     knowingly: practically certain that consequence would happen
3.     recklessness: conscious disregard of a substantial and unjustifiable risk
4.     negligence: unaware, but should have been aware, of substantial and unjustifiable risk
·         burden of production: need to offer some evidence to put an issue before a trier of fact and avoid a directed verdict
·         burden of persuasion: need to show that ultimately the weight of the evidence favors you
n      MISTAKE
·         C/L: general rule – mistake is allowed as a defense as long as some level of culpability is required
·         mistake must be honest and reasonable
·         MPC § 2.04(1)
Ignorance or mistake as to a matter of fact or law is a defense IF:
n      Mistake negates the purpose, knowledge, recklessness, or negligence required to establish an element of an offense
·         ignorance of the law is no excuse – “I didn’t know it was a crime is NOT a valid defense
·         MPC § 2.02(9): neither (lack of) knowledge or recklessness or negligence as to whether conduct constitutes an offense is an element of the offense
·         Mistake of non-governing law may negate the mental element – 
n      People v. Bray case – felon who did not know he was a felon
n      ct ruled that there was no mens rea for crime of felon in possession if D did not know he had status of a felon
·         defense of diminished capacity is only applicable in crimes where there is some level of culpability required
·         Difference between diminished capacity and mistake
a.      Mistake –
1.     DID NOT have requisite intent, but COULD have had intent. 
2.     COULD (but DID NOT) have had level of culpability
b.     Diminished capacity –
1.     COULD NOT have had requisite intent
2.     COULD NOT have had level of culpability
·         MPC § 4.02(1): evidence that D suffered from a mental disease IS admissible whenever it is relevant to prove that D did/did not have the state of mind which is an element of the offense
State v. Cameron (_)
·         Intoxication is NOT defense unless it negates an element of the crime (must be purposeful or knowing mental requirement)
·         However, D must show such a complete prostration of the faculties that the requisite mental state is totally lacking
·         C/L: Voluntary intox. may be a possible excuse for a specific intent crime, but NOT a general intent crime
·         MPC § 2.08
1.     Voluntary intox. is NOT a defense UNLESS it negatives an element of an offense (purposeful or knowing), BUT
2.     when recklessness establishes an element of the offense, if actor would have been aware of the risk if sober, unawareness is immaterial and defense is NOT available.
·         MS: McDaniel v. State: Intox. is NOT a defense if D would have been sane if sober
·         SP CT – due process is NOT offended when state keeps evidence of voluntary intox. from jury consideration
·         MPC §2.08 (4): INVOLUNTARY intox. is an affirmative defense if, by reason of such intox., the D at the time of the conduct lacked substantial capacity to:
1.     appreciate the criminality of the act
2.     conform his conduct to the law
2.     Strict liability
·         NO mens rea needed
·         Types of crimes that have been classified as strict liability:
            1. statutory rape
2.     public welfare crimes (violations of clean air and food acts)
3.     motor vehicle statutes
·         When ct considers whether or not a crime is a strict liability crime, must look to legislative intent of statute
3.     Acts and omissions
·         Need both a criminal mental state (mens rea)AND a criminal act (actus reus) to have a crime
·         Actus reus: guilty act; a wrongful deed which renders the actor criminally liable if combines w/ mens rea.
Mens Rea                                            Actus Reus
Exceptions:                                         Exceptions:
strict liability                                       omissions
public welfare offenses          
·         Unlawful intent, so long as NOT executed, is merely and thought and NOT subject to punishment
·         General rule: Must be some act to have a crime
·         Reasons for above:
1.     evidentiary: difficult to prove intent w/o an act
2.     moral: do not punish just “bad thoughts”
3.     political: not position of govt. to punish thoughts
·         MPC § 2.01: Requirement of a voluntary act
1.     D not guilty of an offense unless his liability is based upon some voluntary act
2.     Possession is an act IF:
a.      D knowingly received things possessed; OR
b.     D was aware of possession long enough to terminate possession
·         MPC § 2.01(3): an omission NOT accompanied by an act is NOT a crime UNLESS:
1.     omission is expressly made sufficient by law defining crime; OR
2.     duty to perform omitted act is otherwise imposed by law.
·         4 situations in which failure to act may constitute a breach of legal duty:
1.     statute imposes duty
2.     status relationship (parent/child, husband/wife)
3.     D has assumed K duty
4.     D has voluntarily assumed care of another and has secluded helpless person as to prevent others from giving aid
·         actus reus must not only be an act, it MUST be a voluntary act to constitute a crime
·         MPC § 2.01: Following acts are NOT voluntary:
1.     reflex or convulsion
2.     movement during unconsciousness or sleep (i.e. sleepwalking)
3.     conduct during hypnosis
4.     bodily movement that otherwise is NOT a product of the effort of actor
·         automatism- state of a person who, though capable of action, is not conscious or aware of what he is doing
·         Universally recognized doctrine: conduct that occurs while the actor is an unconscious state may NOT be dealt w/ criminally.
1.     sleepwalking
2.     epileptic seizures
3.     automatism
·         cannot punish people for their status
·         example: can punish people for using drugs or recklessly abusing alcohol, CANNOT punish people for being an addict or alcoholic
1.     Overview
A.  MPC:
i.       § 2.10 (2) Criminal homicide is murder when:
a.      it is

1.     w/o malice
2.     unintentional
3.     done in conjunction with some unlawful act that is NOT a felony
·         MCA 97-3-47 – All other killings
n      Every other killing of a human being by the act, procurement, or culpable negligence of another, w/o authority of law, not provided before in this title, is manslaughter.
n      Key in above is culpable negligence
·         MS requires a level of negligence greater than ordinary negligence for it to be culpable (criminal) negligence
n      For negligence to be culpable, must be
1.     wanton or reckless
2.     of such a character as to show utter disregard for the safety of others
·         In most jurisdictions, negligence must be greater than RPP standard of tort law
B.    Reckless murder
·         MS – MCA §63-11-30 criminal liability for vehicular homicide while DUI
n      elements:
1.     operation of vehicle
2.     under influence
3.     negligent
4.     death
n      punishable by up 25 yrs
·         Mayfield v. State: D killed two passengers while DUI. State charged him w/ 2 counts of both manslaughter and vehicular homicide while DUI (§ 63-11-30)
·         jury acquitted of manslaughter but convicted for 2 counts of vehic. homicide while DUI
·         Ct said that D could be convicted of vehic. homicide while DUI even though D was originally indicted for manslaughter b/c vehic. homicide while DUI is a lesser included offense
·         However, Sp ct said that D could be convicted of only 1 count under § 63-11-30 b/c:
1.     §63-11-30 is a driving regulation and NOT a homicide statute
2.     statute punishes the act of operating the vehicle and the deaths are but one element of the offense
·         \if a D kills or injures more than one person while operating vehicle under influence, he can only be convicted of one count under §63-11-30
·         However, can be convicted of as many counts of manslaughter as there were deaths
·         Misdemeanor manslaughter: crime at CL
·         like felony-murder doctrine
·         definition: If D caused death while in commission of misdemeanor, can be tried and convicted of manslaughter
·         most states have done away with this doctrine
·         MS still has a misd. manslaughter statute: MCA 97-3-29
·         MCA 97-2-29 is limited to those misdemeanors deemed “inherently dangerous”
C.    Homicide in the course of another crime
i.       1st degree felony-murder
·         At C/L, a killing done in the commission of another felony was deemed to be done in malice, \ murder.
·         MPC § 2.10 (2) see above
·         MS, 2 felony murder statutes
a.      §97-3-19(1)(c) – any felony NOT listed under capital felony murder list
b.     §97-3-19(2)(e)(f) – list of felonies for capital murder:
1.     rape
2.     burglary
3.     kidnapping
4.     arson
5.     robbery
6.     sexual battery
7.     unnatural intercourse w/ a child under 12
8.     nonconsensual unnatural intercourse w/ mankind
9.     felonious abuse/battery of a child
·         3 issues/questions @ limits of felony murder doctrine:
1.     When does the felony end?
·         is the felony still in progress during escape?
·         Usually YES if felon is “immediate flight” from crime
·         “immediate flight” is a fact question to be decided by jury
2.     What does it mean to “commit a killing”? 
·         What happens if a 3rd party inadvertently kills someone?
·         depends on the jurisdiction
·         Majority, D is guilty
3.     Who “qualifies” as a victim under felony murder doctrine? 
·         Does rule apply to co-felons? 
·         Usually the answer is NO
ii.     2nd degree felony murder
·         CL: killing while engaged in any felony OTHER than those enumerated by the legislature felony-murder statute
·         usually limited to those felonies that are “inherently dangerous to human life”.
·         \ embezzlement or fraud would NOT give rise to felony murder doctrine
·         ct must decide if felony is inherently dangerous in the abstract and NOT in reference to the facts of the case
·         inherently dangerous: high probability that commission will cause a death
iii.  Merger of homicide and other crime
·         merger is a restriction on the felony murder rule