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Criminal Law
University of Mississippi School of Law
Hoffheimer, Michael

Criminal Law
Professor Hoffheimer
University of Mississippi
Spring 2010
I.        Introduction
A.      Types of Jurisdictions of Criminal Law
1.       Common Law Jurisdiction
2.       Model Penal Code
3.       Mississippi Law
B.      Pre-Trial
1.       Steps of Criminal Procedure:
a.       Crime – someone claims to have been committed
b.      Background Investigation
c.        Arrest (jurisdiction)
d.      Initial Appearance (constitutional right to make bail – may have to plea at this stage – charges made)
e.      Preliminary Hearing (when court determines whether probable cause exists)
f.        Grand jury decides whether to issue indictment
g.        Arraignment (plea opportunities at this stage), (if no plea – automatically not guilty),
h.      Trial
i.        Jury Instructions: given by judge
C.      Trial by Jury
1.       Specifics: From 6th Amendment: right to trial by impartial jury of peers.
a.       If jury finds verdict against P, case over. P can’t appeal.
b.      If hung jury – D can be re-prosecuted.
c.       Double Jeopardy – can’t be tried for the same crime twice
d.      Corpus Delicti – “the body of the crime” – proof beyond reasonable doubt that the elements of the offense have been committed (not necessarily have to have body to be convicted) – the material or substance upon which a crime was committed (body, house, etc.); substantive fact of crime; evidence of act and agency
D.      Proof of Guilt at Trial
1.       Proof: Beyond a Reasonable Doubt (must prove beyond reasonable doubt to show crime committed); issues bc hard for judge to define to jury, so judges often don’t define it; (jurors state of mind may differ in perceptions of “beyond reasonable doubt”)
a.       In re Winship – required by due process clause “to protect citizens from tremendous power of state”
·         French Instruction – “Thoroughly Convinced” would be unconstitutional
b.      Owens v. State – man convicted of drunk driving – appeals based on lack of evidence – couldn’t prove beyond reasonable doubt; no breathalyzer, couldn’t tell if he’d just gotten in the truck – about to leave, or had already been somewhere (on public hwy and was coming); arrested while parked in private driveway – passed out with open, empty beer cans in truck.
·         Conviction based on circumstantial evidence: 2 presumptions: going or coming; one guilty, one innocent
–          In criminal cases based solely on circumstantial evidence, the evidence must exclude every reasonable hypothesis of innocence. (MS Law)
E.       Jury Nullification – jury basically disregards the law, though it may apply, for reasons like: a) they don’t think it should be the law, b) sympathy, etc. – it is lawful, but most American cts won’t encourage it.
1.       State v. Ragland – ct. says jury nullification is not a right, even though it is a power. Ct. doesn’t want to encourage jury nullification though by giving special instructions regarding its existence to the jury. (policy reasons: laws are made to be followed)
–          power of the jury to acquit despite overwhelming evidence of guilt is Not
F.       Theories on Punishment – punishing the offender –
1.       Utilitarian (Consequentalist) – whether an act or social practice is morally desirable depends on whether it promotes human happiness better than other alternatives.
a.       Incapacitation – theory for neutralizing people who might do harm but who aren’t necessarily morally to blame – keep the criminal from harming others  (ex. Capital punishment – not alive to hurt anyone else)
b.      Deterrence – deterring a certain type of behavior
                                                        i.            Individual Deterrence – deterring a particular individual from doing something again
                                                      ii.            General Deterrence – deterring the public in general from doing something wrong by punishing one person  – deters others from committing that crime
–          Problem:
§ Unable to determine how effective it is
§ To some degree, the effect of deterrence is greater based on how great the punishment is; however, juries are more reluctant to enforce more severe punishments.
c.       Rehabilitation/Reform – trying to deter someone from committing crimes by attempting to reform their line of thinking and to provide opportunities to make positive changes in order to safely interact with society
                                                        i.            Problem:
–          Not sure that it really works.
2.       Retribution – getting even w/those who have caused harm touches an emotional need to fire back at someone – “eye for an eye” – vengeance against criminal for crime
                                                      i.               “got you last” effect
                                                    ii.               Sometimes not available
                                                   iii.               Sometimes would create another wrong
G.     Necessity Defense: Illuminates theories of punishment
o   Common Law: Historical Sense: the English origins of law; development of law in American jurisdictions
a.       The Queen v. Dudley and Stephens – four men stranded at sea, 3 decide to kill 4th in order to eat/survive. Issue over whether they should be convicted of felony murder, whether “necessity” justifies the act. – ct. held starvation no excuse; murder not justified – convicted (bc otherwise, nec. defense could be easily abused). 
–          No duty to save your own life at the expense of another.
–          At common law, no general defense of necessity.
–          “awful danger of necessity defense” – who benefits? Who decides?
–          None of the utilitarian approaches to punishment would’ve deterred them from deciding to kill. (incapacitation n/a bc it was an extreme circumstance, probably wouldn’t do it again; rehabilitation – no need to reform them, not necessarily bad people, just an extreme situation; deterrence – n/a – won’t do that again by choice) retribution, however, is more applicable.
–          Lord Bacon’s approach: justified if necessity
–          Lord Hale’s approach: never justified
o   Model Penal Code –  
a.       §3.01 –  Justification is an as Affirmative Defense , and even if conduct proves justifiable, that doesn’t bar civil remedies
b.      §3.02 –  (1) conduct actor believes necessary to avoid harm or ev

ol actions in an unconscious state.  Have to have voluntary act!
d.      Automatism NOT a defense when state of unconsciousness was voluntarily induced.
–          Must have guilt mind & guilty act.
e.      Ct. held not enough evidence to prove that stabbing was a conditioned response – we don’t know if son snuck up behind him, no witnesses, etc.
–          Note 6: People v.Decina– epileptic driver suffers seizure, causes wreck – kills 4 children – Voluntary act: choosing to drive knowing of epileptic condition; Note 7: Unknowing possession – (ex: unaware that someone put drugs in suitcase)- MPC 2.01 (4): “Possession is a voluntary act when item is knowingly procured or person had a choice to get rid of it.”
B.      Omissions – failing to perform a required act – (Negative Acts)
1.       Five situations where duty to act exists: (note 2 p 139)
–   Statute
–   Status (husband/wife; special relationship)
–   Contract (lifeguard duty to save drowning victim)
–   Voluntarily Assume (helpless person and preventing others from rendering aid)
–   D created the Risk
2.       People v. Beardley  – man’s wife out of town, has affair; “other woman” overdoses in D’s home, D failed to get medical help for her.
a.       Must have a legal duty to act. – more than just a moral obligation
b.      General Rule: no duty to act.
4.       Barber v. Superior Ct. – patient in coma after surgery; drs. advise family of poor chance of survival; family removes life support – patient continues to live for two days; then removes feeding tube. Family sues drs. for murder and conspiracy to commit murder.
a.       Issue over whether drs. had duty to continue to provide life-sustaining treatment – is unplugging an act or omission?
§ Ct. rules Omission – no duty to continue to act where it is family decision to remove support (family asks drs. to)
b.      What it means to be “dead’ – cessation of brain function  vs. cessation of heart and lungs
§ Brain Dead – not irreversible cessation of brain function but still breathing w/o tubes, unconsciousness
c.       Murder: unlawful killing of a human being, with malice aforethought
d.      Drs. and Family agree in this case – had consent, so not murder
C.      Three Different Kinds of Act/Conduct Elements:
1.       Result – law isn’t punishing a person for the resulting harm, for an unwanted outcome (ex. Death or arson)
2.       Conduct – law prohibits specific behavior
3.       Attendant Circumstances – condition that must be present, in conjunction w/the prohibited conduct or result, in order to constitute the crime.