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right to a jury trial to prosecutions for crimes for which the maximumpotential punishment exceeds incarceration of six months.

2. fury Nullification

Jury nullification occurs when the jury decides that the prosecution hasproven its case beyond a reasonable doubt, but for reasons of conscienceit disregards the facts and/or the law and acquits the defendant. Jurorshave the poLzer to nullify, but not tlne right to do so. Therefore, adefendant is not entitied to have the jury instructed that it may nullifythe law.

II. O'TOOLS'' OF THE CRIMINAL LAW

A. Theories of Punishment

1. Different Theories

TWo broad theories of punishment exist: utilitnrionism and retribution.

2. Principles of Utilitarianism

a. AugmentingHappiness

Utilitarianism holds that the general object of ali laws is to augmentthe total happiness of the community by excluding, as much aspossible, everything that subtracts from that happiness, i.e,, every-thing that causes "mischief" (pain).

b. Role of Punishment

Both crime and punishment are evils because they both result inpain to individuals and to society as a whole. Therefore, the pain ofpunishment is undesirable unless its infliction is likely to prevent agreater amount of pain in the form of future crime.

Forms of Utilitarianism

General Deterrence

A person is punished in order to send a message to others (thegeneral society or, at least, persons who might be contemplat-ing criminal conduct) that crime does not pay.

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ii. SpecificDeterrence

D is punished in order to deter D from future criminal activity.This is done in either of two ways: by incapacitation (incancera-tion of D prevents her from committing additional crimes in thegeneral community for the duration of her sentence); and / orbyintimidation (D's punishment serves as a painful reminder, sothat upon release D will be deterred from future criminalcond uct).

iii. Rehabilitation

Advocates of this form of utilitarianism believe that the cr:imi-nal law can prevent future crime by reforming an individual, byproviding her with employment skills, psychological aid, etc.,so that she will not want or need to commit offenses in thefuture.

3. Principles of Retribution

|ust Deserts

Punishment of a wrongdoer is justified as a deserved response towrongdoing. I{etributivists punish becsuse of the wrongdoing-thecriminal gets his just deserts-regardless of whether such punish-ment will deter future crime.

Rationale

Wrongdoing creates a moral disequiiibrium in society. The wrong-doer obtains the benefits of the law (namely, that other people haverespected his rights), but he does not accept the law's burdens(respecting others' rights). Proportional punishment of the wrongdoer-"paying his debt"-brings him back into moral equilibrium. An-other justification is that both crime and punishment are forms ofcommunication: one who commits a crime sends an implicit mes-sage to the victim that the wrongdoer's rights are more importantthan others' rights; punishment is a symbolic way of showing thecriminal-and reaffirming for victims-that this message was wrong.Punishment proportional to the offense defeats the offender: itbrings him down to his proper place in relation to others.

a.

b.

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Proportionality of Punishment

1. General PrincipleA general principle of criminal law is that punishment should beproportional to the offense committed.

2. Utilitarian MeaningPunishment is proportional if it involves the infliction of no more painthan necessary to fr-rlfill the law's deterrent goal of reducing a greateramount of crime.

3. Retributive MeaningPunishment should be proportional to the harm caused on the presentoccasion, taking into consideration the actor's degree of culpability forcausing the harm.

4. Constitutional LawThe Eighth Amendment Cruel and Unusual Punishment Clause prohib-its grossly disproportional punishment.

a. Death Penalty Cases

The Supreme Court has held that death is grossly disproportionalpunishment for the crime of rape, because the latter: offense does notinvolve the taking of human life.

b. Imprisonment Cases

According to the Supreme Court's most recent pronouncement,there is only a very "narrow proportionality principle" outside thecontext of the death penalty. The legislature (not the judiciary) haspr:imary authority in setting punishments. No non-capital incarcera-tive punishment will be declared unconstitutional unless there areobjective grounds-not simply a judge's own subiective views of thepropriety of the punishment-for determining that the punishmentis grossly disproportionate to the crime.

Legality

1. Requirement of Previously Defined Conduct

a. General PrincipleThe so-called "principle of legality" is that there can be no crimewithout (pre-existent) law, no punishment without (pre-existent)law

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Constitutionalb. Constitutional Law

The principle of legality not only is a common law doctrine, but hasdeep constitutional roots. Legislatures are prohibited by the Ex PostFacto Clause of the United States Constitution from enacting lawsthat would punish conduct that was lawful at the time of itscommission, or that increases the pr-rnishment for an act committedbefore the law took effect. In turn, ctturts are prohibited fromenlarging the scope of criminal statutes by the Due Process Clause.

2. Fair Notice

A corollary of the legality principle is that a person may not be punishedfor an offense unless the statute is sufficiently clear that a person ofordinary intelligence can understand its meaning. This is a fundamerttalcommon law concept, with constitutional roots as well in the DueProcess Clause.

3. NondiscriminatoryEnforcement

Another corollary of the legality principle is that a criminal statuteshould not be so broadly worded that it is susceptible to discriminatoryenforcement by law enforcement officers, thereby unduly expandinggovernment power.

D. Burden of Proof

1. Burden of Production

This burden relates to the cluestion of which party-the defendant or thegovernlnent-has the obligation to first introduce evidence on a givenissue. The party with this obligation, who fails to satisfy this burden,loses on the issue. In general, the government has the burden ofproduction regarding elettents of a uime; the defendant carries theburden as to affirmatiae defenses.

2. Burden of Persuasion

Or-rce the burden of production has been satisfied, the next questionbecomes: who has the burden of persuading the factfinder on theparticular issue? The party with the burden of production need not havethe burden ol persuasion.

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Elements of a CrimeThe Due Process Clause of the Constitution requires that thegovernm.ent carry the burden of persuasion, beyond a reason-able doubt, as to "every fnct necessary to constitute the crimeclrarged." The Court has limited the word "fact"-and. thus,the prosecutor's constitutional obligation to carry the burden ofproduction beyond a reasonable doubt-to elements of anoffense, and not to defenses and mitigating factors.

Defenses to Crimes

A legislature is free to place the burden of persuasiorr regardinga criminal law defense on either party-the defendant orgovernrnent-and to set the burden very high (proof beyond areasonable doubt), somewhathigh (clear and convincing evidence)or low (proof by preponderance of the evidence).

I PART TWO: ACTUS REUS

l. ACTUS REUS: OVERVIEW

A. DefinitionThe " actus reLLS" of an offense is the physical, or external, component of acrime what society does not want to occur.

B. Two Elements

The actus reus of a crime consists of two components, both of which must beproved by the prosecutor beyond a reasonable doubt.

1. Voluntary Act or Legal OmissionCenerally speaking, there can be no crime in the absence of conduct. But,only a certain type of conduct qualifies, namely, conduct that includes a

11.