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Criminal Full Course Outline

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This is an extract of our Criminal Full Course Outline document, which we sell as part of our Criminal Law Outlines collection written by the top tier of Harvard Law School students.

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Table of Contents
The Sweep of Criminal Law in America: 1-7; The Basis for Punishment: 89-95.........................3
Why Punish: 89-132.................................................................................................................4
Actus Reus: 221-234, 1072-1084..............................................................................................6
Omissions: 234-253...............................................................................................................12
Mens Rea: 258-279, 287-294..................................................................................................17
Strict Liability: 303-313..........................................................................................................24
Ignorance of the Law: 325-350...............................................................................................28
First-Degree Homicide: 443-462.............................................................................................35
Provocation: 462-490.............................................................................................................39
Unintentional Murder: 509-517.............................................................................................45
Involuntary Manslaughter: 490-509.......................................................................................47
Felony Murder: 517-552........................................................................................................50
Causation: 603-634................................................................................................................58
Rape - Actus Reus: 351-390, 432-435.....................................................................................63
Rape - Mens Rea: 396-432.....................................................................................................69
Statutory Rape: 294-303........................................................................................................73
Attempt: 641-662..................................................................................................................75
Aiding and Abetting: 691-733.................................................................................................80
Conspiracy - Actus Reus/Mens Rea: 744-766.........................................................................90
Conspiracy as Accessorial Liability and Scope: 766-803..........................................................96
Self-defense: 869-886..........................................................................................................106
Battered Women: 887-916...................................................................................................108
Duty to Retreat: 916-945.....................................................................................................112
Necessity: 945-958...............................................................................................................120
Duress: 982-1004.................................................................................................................125
Insanity: 1018-1050.............................................................................................................131
Diminished Capacity and Diminished Responsibility: 1061-1072, 1089-1095........................140
Legality: 176-202.................................................................................................................143
Prosecutorial Discretion: 1179-1204....................................................................................153 Plea Bargaining: 1204-1229..................................................................................................157
Sentencing: 1230-1262........................................................................................................164
*NB: This outline accords with Kadish et el., Criminal Law and its Processes (10th ed.) The Sweep of Criminal Law in America: 1-7; The Basis for
Punishment: 89-95
Regina v. Dudley and Stephens (Lord Coleridge, Queen's Bench Division, 1884)
Two sailors, Dudley and Stephens, were indicted for murder of Parker on high seas. Defendants and victim were stranded for 20 days over 1,000 miles away from land, off the Cape of Good
Hope. They had gone 8 days without eating. The two would "probably not have lived" if they did not eat the boy, and the boy "likely would not have lived" whether he ate or not. They decided against casting lots, and instead killed and ate the boy. Another sailor, Brooks, did not participate in the killing but did eat the boy. At trial, the jury gave a special verdict, finding that these were the facts and sending back to the judge the decision as to whether it was or was not murder.
 Analysis

The question is whether the facts set forth were or were not murder.
o Various definitions of murder imply exceptions for self-defense. Was this selfdefense?
 Not straight forward self-defense
 It's not like straight-forward self-defense, since it wasn't the boy who was threatening them. You can't kill a third party in selfdefense.
 There wasn't sufficient certainty that the boy's living would have caused their death. Moreover, it was possible that some of them would die, but the defendants' decision made sure that the boy,
rather than the others, would die.
 No necessity excuse
 In the ancient law, under Grotius and Puffendorf, in the case of extreme necessity, there was an exception for thievery. But in
England, Lord Hale has rejected that exception. So it stands to reason that there should not be an exception for murder.
 "To preserve one's life is general speaking a duty, but it may be the plainest and highest duty to sacrifice it."
o Court sentences the two to death; crown later commutes to 6 months in prison.
 Cannibalism long accepted as a fact of life at sea.
 Notes

Necessity is difficult because the question of who gets to decide when there is necessity.
o Is there a deterrent effect? Probably not, because if folks are going to die, they'll probably going to do it anyway. Although there may be important effects for society in terms of acknowledging and enforcing norms; creating order and moving away from Hobbsian state of nature. Why Punish: 89-132
Two basic types:
Retributive: Backward-looking; punishment is justified because people deserve it
 Positive retributivism: Society may and must punishment the blameworthy

Immanuel Kant espoused positive retributivism. There didn't have to be identity between crime and punishment (i.e. lex talionis eye for eye), but just equivalence,
except in the case of murder. "Whoever has committed murder must die."
o Victim impact statements
 "Fair play": Retributive theory that there are social rules prohibiting violence and deception and providing benefits for all involved. Assumption of burdens is what makes these benefits possible, and the burdens consist in self-restraint. Crime involves violating these rules,
upsetting the balance of benefits and burdens by allowing one to shirk their burden.
Punishment restores the balance by "extracting the debt."
o Problems
 For one, it is not just the balance of benefits and burdens that matters, but the total quantity of each. Punishment may restore the balance, but reduces the overall quantity. Equality of burdens may not be the proper goal.
 Moreover, the idea of "debt repayment" is specious, because moral debts are paid forward, not paid back. The debt isn't extracted or repaid to victims,
it's wiped out.
 Most importantly, the criminals are supposed to pay back their debt for what? The idea of equal benefits and burdens and resultant debt to society only makes sense if you believe that people are actually receiving equal benefits - which clearly is not the case.
 Social cohesion: this is the "expressive function" of punishment, idea that there is value in punishment as the authoritative expression of condemnation of moral wrongs. It's sort of like utilitarianism, but with a broader view of the good achieved than in Bentham or other orthodox utilitarianism.
o Problem:
 Neither crimes not punishments have coherent social meanings, and it is unclear why attempts to communicate those meanings should be considered good regardless of the consequences.
 Communities are unified at deciding the relative seriousness of crimes,
but not the absolute seriousness. They agree murder is worse than theft,
but not what should be the sentence for each.
 Negative retributivism: Moral guilt is necessary but not sufficient condition for punishment.
Moral guilt sets an upper limit on how much punishment is appropriate.
o Predictive sentencing: factoring in the risk that someone might reoffend to sentencing decisions
 Rhode Island nightclub fire: failed to obtain permit for indoor fireworks that killed 100 people. Sentenced to 4 years. Mixed theory: HLA Hart distinguished between the aim of punishment and the limits of permissible use. Social benefit is a necessary but not sufficient condition for just punishment; and desert is also a necessary but not sufficient condition for just punishment.
o "Punishment's purpose is utilitarian: to reduce crime and thus protect the rights of all to be secure in their persons and property. But that purpose must be pursued within retribution's [just deserts] limits. [Thus], a person can legitimately be punished only if he committed a crime, only in proportion to that crime, and only if doing so would produce a world with less crime." - Stephen Garvey, "Lifting the Veil on Punishment"
o Challenge to mixed theory: suppose someone commits horrendous crimes but before arrest is somehow reformed and rendered of harmless (no need for deterrence, incapacitating, or reform), and it is possible to pretend punish that person so that no one finds out. Should the person nonetheless really be punished?
If you think yes, then you will have to give up the mixed theory.
Utilitarian: Forward-looking, justification lies in the useful purposes that punishment serves
 Seeks to justify punishment based on good consequences expected in the future.
 Punishment should be allowed only so far as it prevents greater evil.
 Jeremy Bentham insists that everyone calculates in matters of great importance. Essentially denies that crimes of passion are a problem.
 Promotes rules of proportion between crimes and punishments, because it gives actors incentives to stop at lesser crimes rather than continuing to greater ones (e.g. stop at robbery, rather than murder-robbery)
 Problems:
o Punishment of the innocent: if deterrence is the goal, should innocents be framed for otherwise unsolved crimes?
 No, because the goal of promoting social peace would only be served by a justice system transparent enough to expose such shenanigans

Disproportionate punishment: The benefits of incarcerating someone for minor offense may outweigh the costs

Mitigation
 Justification: You have not done a wrong; it was a just action in the circumstances
 Excuse: You have done wrong, but you were unable in the circumstances to comply with the law
Purposes of penal codes
 Model penal code §1.02(2): prevent commission of offenses, promote correction and rehabilitation, safeguard offenders against excessive or arbitrary punishment
 New York Penal Law §1.05: deter, rehabilitate, incapacitate
 California Penal Code §1170: punishment, which is best achieved by proportionality and uniformity.
Crime control: deterrence, rehabilitation, incapacitation Deterrence:
 General: disincentivize others
 Specific: disincentivize offender from reoffending
 Certainty versus severity: increasing the risk of conviction is more effective in deterring than increasing severity of punishment
 Threat of punishment and community disapproval may dissuade people from committing crime
Rehabilitation:
 Unclear if effective, so medical model has been mostly abandoned as a justification
 Not necessarily proportional
 Assumes individual can be treated and we will know when the individual is treated
Incapacitation:
 Some argue that imprisonment prevents additional costly crimes, and is therefore a bargain despite the cost.
o Problems:
 Study says criminals commit an average of 12 crimes per year, excluding all drug crimes. The article assumes that jailing for a year prevents 12 crimes. But it takes the prison population as a whole, and does not differentiate by sentence length or prior record. So keeping the group of released prisoners incarcerated for an extra year probably prevents fewer than 12 crimes.
 Many crimes are committed by gangs, and so incarcerated members are replaced and the crimes continue.
 Most crimes are committed by individuals during late teens and early twenties, so locking up beyond that may be less effective.
o Higher incarceration rate is said to be responsible for decline in crime during the 90s, but there are other causes: demographic trends, community policing innovations, legalized abortion, waning of crack epidemic, reduction of lead paint and gasoline.

Actus Reus: 221-234, 1072-1084
Two [or more] Elements of a Culpability for Crime: Actus Reus, Mens Rea.
 Most action in criminal law is on the mental state. That's where the hard questions are.
You need both.
 + "Attendant Circumstances" [MPC §1.13(9)]
 + Results of a crime
Actus Reus

1. No liability
Torts

2. Civil liability
Criminal law 3. Manslaughter
Grading

4. Murder
Elements
 Actus reus

Conduct

Result

Attendant circumstances
 Mens rea

Purpose

Knowledge

Reckless

Negligent

Strict

[Cheek]
 Mistake of fact
 Mistake of law


Actus Reus: common law principle that criminal liability always requires commission of some voluntary act that is prohibited by law.
MPC §2.01(1) requires that conduct must include a voluntary act - not that all acts were involuntary.
o Prosecution carries the burden of proving the act - and typically its voluntary character - beyond a reasonable doubt.
o MPC defines voluntary indirectly, by listing examples of involuntary acts. Involuntary is defined inconsistently in criminal law: killing by accident with a vehicle is involuntary manslaughter, but the motorist's actions are not considered involuntary.
 Involuntary does not necessarily include acts the accused does not remember; acts due to an uncontrollable impulse; unintentional acts;
unforeseen consequences.
o MPC treats habitual action done without thought as voluntary action.
o MPC treats actions under hypnosis as voluntary. But due to scientific disagreement over hypnosis and difficulty of distinguishing normal from hypnotized actions, most states have not adopted the hypnosis defense.
Voluntary versus blameworthy: involuntary acts are never blameworthy. But some voluntary acts are not blameworthy, since a number of other conditions are required for blame. So a voluntary act is necessary but not sufficient for criminal liability.
o Mens rea is the assumption that blame entails some awareness that one's actions can cause harm.
o Line between voluntary/involuntary is based on ability to deter

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