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Criminal Law
University of Mississippi School of Law
Berry, William W.

Criminal Law Outline
Berry

I. Nature, Sources, and Limits
a. What distinguishes a criminal sanction and civil sanction is the judgment of community condemnation which accompanies and justifies its imposition
b. A criminal act is conduct which will incur a formal and solemn pronouncement of moral condemnation or the community
c. Criminal law involves the threat and imposition of punishment
d. Legislatures are responsible for forming the law and the punishments are handled by other agencies
e. The Constitution limits the lawmaking power of legislatures
i. I.e., prohibiting ex post facto, cruel and unusual punishment, and the due process clause of the 5th and 14 AMD
II. Pre-trial
a. The police must have probable cause to arrest
i. Probable clause is not a fluid concept. It requires that there be a substantial chance that the suspect committed the offense under investigation
ii. States have different hurdles to overcome before trial
1. Preliminary hearings, and if probable cause then the prosecutor can file an “information” which sets the formal charges against the  and basic facts
2. The federal system and some states have grand juries and if sufficient evidence is found, they issue an indictment
iii. The r is able to make pre-trial motions for certain constitutional issues and sometimes the charges are dismissed as a result
III. Trial by jury
a. The 6th AMD
i. In all criminal prosecutions, the accused shall enjoy the right to a speedy and public trial, by an impartial jury
1. All cases for which the maximum penalty exceeds 6 months jail time
ii. Juries as small as 6 are constitutional, but 12 is the norm for federal system and most states
iii. A substantial majority (9-3) for some states to uphold verdict
b. Impartial jury and voir dire
i. Judge and attorneys examined the potential jurors (venirepersons) regarding their attitudes and beliefs
ii. If the venireperson is found to be partial, he can be dismissed “for cause”
iii. Preemptory challenges
1. Prosecutors and the defense are entitled to dismiss a limited number of venirepersons not for cause
a. The main purpose is to eliminate jurors who might be biased
2. However, the 14th AMD requires that rave or gender cannot play a role
IV. Proof of guilt at trial
a. The due process clause requires that the prosecutor persuade the factfinder “beyond a reasonable doubt of every fact necessary to constitute the crime charged” (In re Winship)
b. J. Harlan said is far worse to convict an innocent man than to let a guilty man go free
c. Beyond a reasonable doubt
i. The SC said that the standard requires that a juror’s mind be in a “subjective state of near certitude” of guilt
ii. Near certitude cannot be quantified
iii. The Constitution doesn’t require or prohibits trial courts from defining reasonable doubt
1. If a court chooses to define it then the Constitution doesn’t require specific words, as long as the definition wouldn’t allow a conviction insufficient to meet the constitutional standard
V. Enforcing the presumption of innocence

Owens v. State
Owens was found by a state trooper passed out drunk in his truck with the lights on and the motor running. He was found guilty of driving while intoxicated. He appealed on the basis that the evidence provided at trial was not sufficient to convict him. Are the circumstances of the case inconsistent with any reasonable hypothesis of innocence? The court reasons that there are only two reasonable conclusions that can be drawn from the scene that the state trooper discovered: 1) The defendant had just finished driving drunk (guilty) or 2) The defendant was about to drive drunk (innocent). “[A] conviction on circumstantial evidence alone is not to be sustained unless the circumstances are inconsistent with any reasonable hypothesis of innocence.”

VI. Jury nullification
a. Juries have the ability to ignore the facts and the judge’s instructions and acquit the r
b. The 5th AMD Double Jeopardy Clause prohibits the government from reprosecuting a r after acquittal
c. The jury has the raw power to acquit for any reason whatsoever

State v. Ragland
The court makes clear its view that jury nullification is undesirable but unavoidable. It says that the jury should only be informed of its nullification power if such information would have a positive result in terms of policy. The court reasons that “advertising” jury nullification will result in confusion, arbitrariness, and a slippery slope of consequences involving the way attorneys and judges can and should address the jury at trial.

VII. Theories of punishment
a. In general
i. Punishments are necessary in order for the threat of punishment to be taken seriously
ii. The two main theories are utilitarian and retributivism
b. Utilitarian Justifications
i. The act or social practice is morally desirable if it promotes happiness over other possible alternatives
ii. Types
1. General deterrence
a. Knowledge that punishment will follow crime deters people from committing crimes
b. Seeing others punished for certain behavior can lead people to as

ted for theft of three golf clubs and sentenced under California’s three strikes law to twenty-five-years-to-life. Ewing had an extensive criminal record, dating back to 1984 that included felony and misdemeanor convictions for theft, battery, firearms possession, robbery, and burglary. Does petitioner’s twenty-five-years-to-life sentence violate federal constitutional provisions against cruel and unusual punishment because his sentence is grossly disproportionate to the offense of stealing golf clubs? No. It is not grossly disproportionate and therefore doesn’t violate the 8th AMD.

IX. Basic Principles of Legality
a. Legality: no conduct, even immoral and harmful conduct is criminal unless the legislature previously has defined conduct as a crime (i.e., no judicial crime creation)
i. principle is developed to protect the separation of powers b/w the branches of government
ii. legality allows the law to be fair and lends some moral weight to the principle
iii. there are political reasons behind this principle (don’t want to be allowed to throw political opponents in jail for no reason)
1. Example of modern immoral conduct not punishable: Internet child porn
b. Constitutional Principle (void-for-vagueness): when legislature defines crime
i. it must not be “unduly vague” or “over broad” (forbids wholesale legislative delegation of lawmaking authority to the courts)
c. Strict Construction (lenity): directs that judicial resolution of residual uncertainty or ambiguities in the meaning of penal statutes be biased in favor of the accused
X. Requirement of previously defined conduct
a. No punishment without law – condemns judicial crime creation

Commonwealth v. Mochan
(Legality)
r was arrested for calling the victim on the phone and making horrible comments (sodomy) to her. The conduct was not prohibited by any statute, but the prosecution contended that the actions were unlawful under the common law. The Penn penal code provides that any actions punishable under the common law shall continue to be a punishable offense.