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Criminal Law
University of Oklahoma College of Law
Johnson, Kit

Criminal Law Outline
Spring 2016
Common Law
Crime- conduct which, if duly shown to have taken place, will incur a formal and solemn pronouncement of the moral condemnation of the community
Sources of Criminal Law
State and Federal statutes
Developing out of common law (CL)
Adapting the Model Penal Code (MPC)
Elements of a Crime
Conduct (Actus Reus)
State of Mind (Mens Rea)
Criminal Procedure
Reporting the Crime
Warrant may be needed- search and seizure under the 4th amendment
Probable cause required
Requires probable cause- substantial chance that the person you're arrested committed the crime
Initial Appearance
Usually within 48 hours
Waiting period (between initial hearing and charging document)
30 days if released; 14 if in hail
When you should be negotiating with the prosecutor
Charging document
Formal charges of what you're arrested for
Inditement (lists “grand jury charges”) or
Information (lists U.S. Attorney charges)
Works differently in state court
Indictment (secret proceeding by grand jury)
Preliminary hearing (public proceeding)
When the judge reads, out loud, the formal charges (from whichever document is used)
Formally asks the defendant if they have access to counsel
How does the defendant plea?
Might be a moment to reconsider bail
Set the dates moving forward
Pre-trial Process
Initial conference
Discovery (limited/ more restrictive than Civ pro)
Pre-trial Motions
Motion to suppress (evidence gathered in violation of the 4th amendment)
Expert testimony
Jury Trial
Speedy Trial Act (statute says it's supposed to be 70 days)
“Confrontation right”
Defendants have absolute right to cross-examine prosecutor's witnesses
Burden of proof = beyond a reasonable doubt
Plea Bargaining
Can happen throughout this entire process
Agreement between prosecution and defense
9/10 felonious- resolved with a plea
99% of misdemeanors- resolved with a plea
Final Judgement/ Sentencing
Begins by going to probation department
Interview defendant, his family, research him, etc
Both sides file sentencing memos
Opportunity for defendant to address the court directly
Show remorse, say how sorry they are, etc
Multiple charges
Might run concurrently or consecutively
$ damages possible
Federal court- have to pay $100 for every charge you're convicted of
ALWAYS a money aspect in federal court
Voluntary surrender
Turning yourself in
Idea is “trail court got it wrong” because either:
Jury instructions were wrong
Evidentiary ruling was a incorrect
Sufficiency of the evidence
Affirmed or reversed
Direct appeal is right after you're convicted
Habeas Corpus
Aka: a collateral attack
Saying, “you need to let me out of jail right now” because of some serious constitutional defect
Limits to Criminal Punishment
Substantive Limits
First Amendment
Eighth Amendment
Excessive bail shall not be required, nor excessive fines imposed, one cruel and unusual punishment inflicted
Substantive Due Process
Has to be connection between the crime and some injury to the public
Procedural Limits
Ex Post Facto Prohibition
Can't take something that was legal and the time of action and make it a crime
Can't elevate the crime
increase or change associated punishment
Void for Vagueness Doctrine
If reasonable men must guess at its meaning and differ in its application, then the statute is void
Bill of Attainder
When the legislature tried to declare a person or persons guilty without due process
The State's Burden of Proof (burden of persuasion) at Trial:
The state must prove every element of a crime beyond a reasonable doubt
This does not mean that the state must prove beyond a possible doubt is
Based on reason and common sense, and not based purely on speculation
Standard of Review on Appeal
Based on a claim of “insufficient evidence”
An appellate court will uphold a conviction if any rational fact-finder, viewing the evidence in the light most favorable to the state, could have found that the state proved every element of the offense beyond a reasonable doubt
Presumption of Innocence
Owens v. State
Facts: arrested for sitting in his car, in his driveway, empty beer cans and passed out
Held: state won, inference of guilt enhanced by diminishing the presumption of inno

Facts: Gementera stole mail, was sentenced to jail, community service, and standing in front of post office with sandwich board sign
Held: sandwich bardo sign did NOT violate the sentencing reform act (permissible purpose and relating to those purposes)
Shaming was allowed here
Proportionality of Punishment
How much should you be punished?
8th Amendment:
Excessive bail shall not be required, nor excessive fines imposed, nor cruel and unusual punishments inflicted
Under Coker All punishment is excessive and unconstitutional if it:
makes no measurable contribution to acceptable goals of punishment and hence is nothing more than the purposeless and needless imposition of pain and suffering; or (utilitarian)
is grossly out of proportion to the severity of the crime (Retributivist)
Coker v. Georgia
Facts: Coker escorted from prison, tied up a husband and wife, drove off with their car; caught by police
Held: capital punishment too excessive/disproportional to the crime, since it is grossly disproportionate to the severity of the crime (retributivist) and makes no measurable contribution to deterrence (utilitarian)
Ewing v. California
Facts: Ewing, on parole for robbery/ battery, stole $12,000 in golf clubs; sentence to 25 yeas under California's 3 Strikes Law
Held: Sentence NOT disproportionate since it advances the foals of the state to deter repeat felonies
Death penalty for assassination of U.S. President
Is it grossly disproportionate (Coker theme)?
Under Coker, the president didn't die, so death isn't justified for the criminal
Life w/o parole for setting up a dealing 25 kilos of Cochin, but then deal falls through; first time offender
Use Ewig
When not talking about the death penalty, we have weigh the offense in question and the punishment