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Criminal Law
University of Oklahoma College of Law
Johnson, Kit

Criminal Law Johnson Spring 2015

Criminal Procedure

1. Crime

2. Reporting

3. Investigation – search and seizure law..have to have probable cause… EXCEPTIONS= exigent circumstances, plain view

4. Arrest – requires probable cause

5. Initial Hearing- w/in 48 hrs of arrest usually… magistrate judge.

a. Bail is determined

6. Waiting- cut deals/negotiate with prosecutors etc.

7. Charging Documents

a. Informal Charge

b. Formal Charge –

i. Indictment (grand jury)- secret

ii. Information- no need for grand jury..waived…similar to complaint in civ pro.

8. Arraignment

9. Pre-trial

10. Trial- speedy trial constitutionally protected

11. Appeal

-Burden of Proof for State at trial: State must prove every element of the offense beyond a reasonable doubt.

Theories of Punishment

Punishment definition: Intentional infliction by an authoritarian of some burden or hardship.

How does punishment cause less crime?

– General deterrence

– Specific deterrence

– Incapacitation

– Reform

Utilitarian Justifications- the idea that the moral worth of an action is determined solely by its usefulness in maximizing utility (pleasure, knowledge, etc.) among society.

Society should try to maximize the net happiness of people. Objectives that criminal law should try to achieve are general deterrence, specific deterrence, and rehabilitation.

• Bentham: the principle of utility approves/ disapproves of every action according to whether it increases or decreases happiness. Laws should increase the happiness of the community and exclude those that don’t. Punishment is only to be used when it can prevent greater evil or mischief.

o Where punishment is groundless, ineffective, too expensive, or needless- we don’t use. (only punishment that is just enough to deter/keep safe)

o To justify the pain of punishment, it must have enough good consequences to outweigh the pain.

o Beneficial consequences of punishment: general deterrence, individual deterrence, incapacitation (physically preventing people from doing harm), and reform.

Retributivism- only cares about desert. – more about being morally culpable instead of deterrence.

– Positive retributivists – desert (guilt) is both necessary & sufficiency condition for punishment and must be punished

– Negative Retributivist- desert is pre-condition but deserving punishing alone is not the justification for punishment…other factors are considered

Moore and Kant: punishment should be graded in proportion to moral culpability. This is a sufficient reason to punish criminals. We are justified because they deserve it, and society has a duty to punish these individuals even if there is no deterrence.

Sentencing objectives:

– Protect society (Consequentialism)

– Punishment (Retributivism)

– Reform (Consequentialism)

– Deterrence (Consequentialism)

– Incapacitation (Consequentialism)

– Restitution (Retributivism)

– Sentencing uniformity (Consequentialism/Retributivism)

Sentencing Reform Act

1. Deterrence – Cons.

2. Protection of Public – Consq.

3. Rehabilitation – Consq.

Proportionality of Punishment

-Utilitarianism= balance between what is need by punishment against the pleasure from offense

– Retributivist- is it really an eye for an eye if the punishment is grossly/greatly disproportionate?

8th amendment= also prohibits “greatly/grossly disproportionate” punishment to offense charged.

In capital death penalty cases, the 8th amendment requires the punishment cannot be greatly or grossly disproportionate.—capital cases

• COKER V. GEORGIA: a sentence of death is grossly disproportionate for rape and is therefore forbidden by 8th Am.

o A punishment is excessi


i. Legislative history

ii. Earlier statutes

iii. CL at time of adoption

iv. Prior interpretations

f. Non-Redundancy- words in statute should be interpreted as NOT being redundant.

Drafters Dilemma – don’t want to be too vague (so then susceptible to DP challenge), but you also don’t want to be too specific as to let bad behavior go unpunished

Purposivists- Judges should enforce the spirit rather than the letter of the law if there is a conflict between the two.

policy context? (Muscarello- trying to interpret word “carry,” textualist majority)

o Targets intent

o Text is important

o Taken with legislative history AND contemporary context

o Functional and pragmatic


Textualists- Judges have a duty to enforce the duly enacted text.

o objective understanding. Targets reasonable meaning

o Text is SUPER important


o Always favors limiting text to allow more room for democratic process

ACTUS REUS what did you actually do?

AR requirements:

1. Voluntary act or

2. Qualifying omission

a. Conduct crimes: what’s prohibited is certain conduct (speeding)

b. Result crimes: what’s prohibited is certain result (killing someone)

I. Voluntary Act

– CL- voluntary act is a pre-requisite to criminal liability…must be willed movement..

o While unconscious= not an act.

§ We don’t punish people for their thoughts.

§ A voluntary act is a willed muscular contraction