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Criminal Law
University of Mississippi School of Law
Hoffheimer, Michael

Criminal Law Outline

Prof. Hoffheimer

Spring 2011


1. Traditional Concepts: Setting the Stage

Sources of Law (3 different jurisdictions we are looking at) – Always ask yourself what the source of legal authority is. Must not confuse these. We are covering substantive criminal law

o Common Law

o Historical sense – the English origins of a law

o Development of law in American jurisdictions

o 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

o Reached final formulation in 1960s

o Will be on the final and bar exam!

o MS Law

A. Right to Trial by Jury:

§ 6th Amendment gives right to trial by jury for criminal cases. This is binding on both state and fed’l gov’ts. Applicable to only “non-petty” offenses (less than 6 months jail time). Provides that “in all criminal prosecutions, the accused shall enjoy the right to a speedy and public trial, by an impartial jury.” A right to jury trial is granted to criminal defendants in order to prevent oppression by the Government.

§ 7th Amendment gives right to trial by jury in civil cases. This is binding on the fed’l gov’t only.

o Size of juries: The federal system and Most states require 12 jurors and a unanimous verdict. However, the Constitution may permit juries as small as 6, but require a substantial majority (9-1). Furthermore, state laws permitting non-unanimous verdicts by twelve-person juries are permissible, as long as the vote to convict also constitutes a “substantial majority” of the jurors.

B. What is the law of the crime? Focus for this class and necessary to ask:

Ex. Of what he may point out in class

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: what client is being charged with

o See if bail is a possibility (available)

4. Preliminary hearing

o Judge must determine if there is a probable cause over which the grand jury might bind the accused. “Probable cause hearing” If there is PC the D can be held until the…

5. Grand Jury: Indictment

o Must decide if there will be an indictment (i.e. a formal charge)

o Grand jury is a group of citizens that is brought in. The Prosecutor usually wins at the grand jury bc there are factors such as no judge

6. Arraignment

o D is brought into the court and read the indictment

o D enters a plea (e.g. guilty, not guilty): Many opportunities for pleas at this stage

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. This will be especially important to us in class!

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.

§ When Prosecutor loses they can’t appeal bc of the idea of double jeopardy

§ If we have a “hung jury” then the case does not go away and the D can be re-prosecuted

o ~ Corpus delicti: not that important according to Hoff. This phrase means “body of crime” A body is not necessary to win, but that the elements of defense have been committed. Must know what this doesn’t mean!

o 1.Material on which the crime was committed (i.e., body or house)

o 2.Fact of crime

C. Proof of Guilt at Trial, starting with

(1) Burden of Proof: Proof Beyond a Reasonable Doubt

§ Prosecution must prove “beyond a reasonable doubt of every fact necessary to constitute the crime charged.” In re Winship.

§ Must prove every element of a crime beyond a reasonable doubt. Why reasonable doubt? To prove that no innocent person is being convicted

What does proof beyond a reasonable doubt mean?

§ Does the jury have to have a definition of reasonable doubt? No, but it can be defined. It is constitutionally permissible to not define it. Cts must be careful to define “reasonable doubt.” Definitions that are quantitative are normally bad.

§ Is the jury often given a definition of reasonable doubt? Does the clear rhetorical test deal with answering this question? Hoff says YES, the jury is routinely given The Question on reasonable doubt or they (court) don’t have to define but court will instruct. Examples of defining are on p. 12-13/

§ Quantitative =unconstitutional à Can it be quantified? No, it is not quantifiable because quantifying makes it easier to convict and is more likely to confuse the jury rather than clarify its understanding of this standard.

§ If we (jury) are not sure we are suppose to return a verdict of not guilty. With this standard ppl who are guilty may be getting off, while an innocent person is saved from conviction. Problems of this involve a high burden

§ **N.5 p.13: Problem– (Hoff raised this issue before) D does not like this b/c judge is saying where do you find to truth . This can be likely or not. Return verdict is to say the truth

§ Proof beyond a reasonable doubt can be proved by a totality of the surrounding circumstances. E.g. D found drunk and asleep in car w/ car started and lights on. Three beer cans were on the floor. Circumstances proved beyond reasonable doubt he had been drinking and driving. Owens v. State.

Exam Analysis Hint: See More of Owens: Good for Analysis: This opinion raises circumstantial evidence

D. Jury Nullification: Juries can do this. Is it lawful for them to disregard the law? In a sense–yes. It’s not lawful in a sense that they are disregarding the law defined by the authority. But is it lawful in terms of consequences? No. The judge can’t punish the jury. There is no legal consequence. The jury can do it in a sense there is no legal punishment on them.

§ Issue: 5th Amd no double jeopardy and the fact that a jury can acquit a D w/out stating its reason and no matter what is justification may have been, its verdict is non-reversible. Jurors have the power to acquit a person they believe beyond a reasonable doubt is guilty, if they wish to disregard the law.

§ Pro: serves the community’s safeguard against morally unjust or socially undesirable criminal convictions.

§ Con: jurors are violating their oaths to obey the law.

§ Law: Jury instructions that state jurors “must” convict if certain elements are met are ok. While the power to nullify exists, there is NO right to nullify. This power is debated

§ Judges my refuse to inform a jury of its nullification power. Most courts refuse jury instructions regarding nullification p

e to Actor)

§ The harm or evil avoided must be greater than the harm or evil committed. (Jury weighs); objective determination

§ The specific law must provide no exceptions or defenses.

§ Necessity can’t have been specifically excluded as a defense by the leg.

§ Actor can’t be reckless or negligent if offense committed has an element of recklessness or negligence. Client still guilty if put in the position where they had to make this choice


Necessity is NOT a defense, Queen case is an example


Necessity IS a defense, provided that:

1) Act done to prevent significant evil.

2) No adequate alternative.

3) Harm caused must NOT have been disproportionate to harm avoided.

4) Actor must have a reas belief that imminent danger of death OR serious bodily harm exists.

Note: In MS, necessity is NOT a defense for drunk driving, even if in an emergency, e.g. taking wife to hospital to deliver baby.

Knight v. State: Knight ran over a child. The father saw and knew Knight. Crowd formed. Bystander told Knight he should leave. He left and was charged with leaving the scene of an accident. Held a necessity. Note: The purposes of the criminal prohibition (leaving a scene) had already been satisfied (driver was known, help was on the way). Jury instructions set-up the substantive law of the case, what matters is what is in these instructions more than the statute. Should there be a necessity defense the jury should consider? Yes

Actual MPC:

§ 3.01: Justification an Affirmative Defense; Civil Remedies Unaffected

(1) In any prosecution based on conduct that is justifiable under this Article, justification is an affirmative defense.

(2) The fact that conduct is justifiable under this article does not abolish or impair any remedy for such conduct that is available in any civil action.

§ 3.02: Justification Generally: Choice of Evils

(1) Conduct that the actor believes to be necessary to avoid a harm or evil to himself or to another is justifiable, provided that:

(a) the harm or evil sought to be avoided by such conduct is greater than that sought to be prevented by the law defining the offense charged; and

(b) neither the Code nor other law defining the offense provides exceptions or defenses dealing w/ the specific situation involved; and otherwise plainly appear.

(2) When the actor was reckless or negligent in bringing about the situation requiring a choice of harms or evils or in appraising the necessity for his conduct, the justification afforded by this Section is unavailable in a prosecution for any offense for which recklessness or negligence, as the case may be, suffices to establish culpability.