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Criminal Law
University of Mississippi School of Law
Hoffheimer, Michael

Section 1
Professor Hoffheimer
–          The 6th Amendment guarantees that in criminal prosecutions, the accused shall enjoy the right to a trial by an impartial jury
o       In order to prevent the power of an oppressive govt.
o       Most states require 12 jurors, but it can be as few as 6, and must have a substantial majority convict
–          The Due Process Clause of the 5th & 14th Amendment requires the prosecutor to prove guilt beyond a reasonable doubt
o       In re Winship
§          Must prove every element of a crime beyond a reasonable doubt
§         Govt. does NOT have the burden of disproving every defense set forth by the def. beyond a reasonable doubt
o       Courts aren’t required to give a definition of reasonable doubt, but if they do it must be good
–          Presumption of Innocence
o       Owens v. Sate (1992)
·         Circumstantial evidence of beer cans and car running; convicted DUI
§         Circumstantial evidence can support a conviction, but in some states they have imposed another requirement where the state must disprove all reasonable hypothesis set forth by the def.
§         When a criminal case is appealed, the burden sort of shifts
·         The appellate court assumes that all factual information in favor of the prosecution was admitted
·         Then, analyzes whether it was reasonable for the trial court to make the conviction
–          Jury nullification
o       Overall, the judge decides what the law is and the jury gets to determine what the facts are
§         However, even where there is proof beyond a reasonable doubt, the jury can return an innocent verdict, and there is nothing the prosecution can do about it
o       Can’t retry the def. because it would violate double jeopardy
·         The jury nullifies the application of the law in that case
o       State v. Ragland (1986)
·         Jury nullification is merely a power, and not a right
§         The judge does not have to make the jury aware in jury instructions of their power to nullify the law
§         Many people jury nullification is a bad thing
o       Would confuse jurors and wouldn’t be smart to let a jury does it pleases, it must apply the law
·         Opposing argument is that it is included in the right to jury trial and nullification preserves the conscience of the community
–          Theories of Punishment
o       Deterrence
§         General
·         Knowledge that punishment will follow crime deters others from committing crimes
o       Punishment of criminals will deter others
§         Hopefully reduce future violations
§         Specific (individual)
·         An offender fears to repeat a criminal act for fear of being punished again
o       First-hand experience of punishment is a much harsher lesson than seeing others punished
·         Repeat offenders should be subject to severe punishment because it shows specific deterrence is not working
o       Incapacitation
§         Death penalty, life imprisonment, prison time, all keep the criminal out of the general population
·         Physically prevents the person from acting criminal
o       Reformation/rehabilitation
§         A conviction and penalty may be helpful in showing the offender he did wrong
·         Reform tries to take positive steps to alter the criminal’s behavior
·         Attempting to make employment more attractive than criminal activity
o       Retribution
§         Punishment for the sake of punishment
·         Should pay the price for the crime no matter what
o       Did the wrong, do the time 
o       Capital Murder/Punishment:
§         Historically, most felonies were eligible for capital punishment
·         Most industrialized countries have done away with capital murder
o       Exceptions: USA & Japan
§         Minority of states in USA have abolished death penalty
§         Is capital punishment unconstitutional?
·         Punishment must not involve the unnecessary wanton infliction of pain or suffering (8th Amendment – cruel and unusual punishment)
§         Purposes for capital punishment
·         Retribution
o       An expression of society’s moral outrage at particularly offensive conduct
·         A statement of conviction and values
§         Life for a life; eye for an eye
o       If state doesn’t impose death penalty in some cases the public may lose faith in the system and resort to vigilante justice
·         Deterrence
o       Results have been inconclusive as to whether the death penalty deters criminal action
§         Overall, punishment must be in accord with basic concept of human dignity
·         Evolving standards of decency can change view over time
o       Over 35 states impose capital punishment
o       State legislatures are a good indication of societal views
o       Jury members impose the death penalty, and they are a representation of community values & mores
·         Brennan says there is no place for capital punishment in a civilized society
§         GA procedure for capital punishment:
·         Bifurcated trial (ex. Scott Peterson case)
o       Guilt phase
o       Punishment phase
·         Jury gets to consider the crime (guilt) then the criminal (punishment)
§         Problems with capital punishment:
·         Mistake
·         Prosecutors pick juries that agree with capital punishment
o       A voluntary act that is criminal
§         Actus reus is the physical component of a crime
–          Voluntariness of the act is generally presumed in the statute
o       MPC 2.01      
§         Not guilty of an offense unless his conduct includes a voluntary act or the omission to perform an act of which he is physically capable
·         Doesn’t mean that every element of a crime by voluntary
§         Possession is an act
·         Knowingly procured item; or
·         Failure to get rid of the item after a sufficient period of awareness of item
§         MPC might recognize the defense of automatism
·         Ex. Vietnam Vet hears backfire and goes in to “auto” mode and punches someone
o       Conditioned response
§         Usually can’t be guilty of unconscious act because not really an act
o       However, where the automated state is induced by alcohol or drugs, will not be a complete defense
–          Omissions (Negative Acts)
§         Generally, there is no duty to act
o       There are instances where there is a duty to act:
§         Must be a legal duty:
·         Statutory duty
·         Certain status relationship
o       Ex. Parent – child
·         Contractual duty of care
·         Voluntarily assumes care and secludes the person from care of others
·         When the person created the risk of harm
o       Omission of a legal duty may give rise to manslaughter
o        A guilty mind or wrongful purpose
§         Criminal intent
o       There must be a guilty mind (mens rea) and an act (actus reus) in order to be convicted of a crime
§         Actus non Rule:
·         Generally, an act does not make a person guilty, unless the mind be guilty, the intent criminal
–          Intent
o       A person intends, or acts intentionally, or with intent, to accomplish a result or engage in conduct described the statute as offensive/criminal, when his conscious objective purpose is to accomplish that result or engage in that conduct
§         The ordinary presumption is that a person intends the natural and probable consequences of his actions
o       Intent can be inferred from the surrounding circumstances
·         Actions speak louder than words
§         Can make inferences about one’s mental state from their conduct
·         Ex. have intent to cause harm when swing a bottle at a person’s head
–          Transferred intent
o       When a person intends to harm one person, but accidentally harms another, the intent can be transferred to the victim to convict the aggressor
–          General intent
o       A generalized approach to mens rea
o       Essentially, general intent is whatever is not specific intent
–          Specific intent
§         A

is inherently immoral
o       Ex. murder, rape, arson, etc…
§         Malum prohibitum
·         The act is not necessarily immoral, but prohibited by statute
o       More likely be determined to be a public welfare offense and more likely to be strictly liable
o       Is the law part of an area that is heavily regulated?
§         More likely to be malum prohibitum and may have argument for strict liability
o       Look at punishment imposed
§         The more severe the punishment, the less likely the Court will construe silence as strict liability
o       Statutory rape
§         Usually, there is no defense for mistake-of-age (MS & majority)
o       Minority of states do allow for a mistake-of-age defense
§         Up to jury to determine if mistake reasonable
·         Strictly liable if a 25 year-old has sex with a 14 year-old even if consensual and even if the 25 year-old though the 14 year-old was 18
–          Mistake & mens rea
§         Generally, there is an assumption that people know the law
·         Ignorance of the law is no excuse
o       MPC 2.04
§         Generally, there is no defense for mistake of law; however…
·         A belief that conduct does not legally constitute an offense may be a defense when: (very restrictive exception)
o       The def. acted in a reasonable reliance on an official statement of law, afterwards determined to be erroneous or invalid; or
§         The correct official for interpretation may be specified by law (ex. Attorney General) or if not specified a reasonable official such as a Judge or executive officer
o       The statute has not been published
§         Mistake of fact may be available by negating a specific requisite intent for a crime
o       Common law:
§         An honest mistake of fact may constitute a defense whether reasonable or unreasonable
o       May negate a specific intent required for the crime
·         Exception; Moral Wrong Doctrine:
o       Even if an actor’s mistake is reasonable, his intentional commission of an immoral act serves as the requisite blame to justify conviction
§         Generally, there is no defense for mistake of law
o       Prosecutor does not have to prove knowledge or anything in respect to the underlying law
·         However, a mistake of law may be a defense to a crime by negating the specific intent required for conviction
o       Ex. Cheek v. United States (1991)
§         Def. actually believed the income tax to be unconstitutional
·         Could not be convicted of willful tax evasion
o       The link between the act and the social harm that occurred
§         For result crimes
o       Two elements:
§         Def. must be the ACTUAL CAUSE; cause in fact; AND
·         What really happened factually; who or what caused the result?
o       Almost always an issue in homicide
·         Tests:
o       Bur for test
§         But for the def. voluntary act or omission, would the social harm have occurred when it did?
·         If yes, then no cause
·         If no, then there is cause
o       Usually no
§         Ex. But for the def. pulling the trigger the person would have been alive
o       Substantial Factor test
The def. conduct is a cause-in-fact of a prohibited