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Criminal Law Outline

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1. CRIMINAL LAW OBJECTIVES Consider statute, problems and policy implications Law is neither neutral nor objective---highly dependent on context Law embodies notions of reality---imposes norms of society Speaks to two audience: general public and the State Law must be specific enough to form a guide---provide notice Law must satisfy constitutional objectives Criminal law is concerned with blameworthy conduct Rule of Leniency---if there is ambiguity / multiple interpretations of a statute, construe in favor of the accused CRIME = ACTUS REUS + MENS REA + CIRCUMSTANCE + CAUSATION + RESULT - DEFENSE A crime requires a choice (act / omission) but choice alone is insufficient---generally there is some knowledge and it is crucial to know intent and state of mind.


1. Deterrence---preventative. Prevent conduct specifically to individuals and generally to society. Assumes rational actors. May risk abuse by law enforcement and punish disproportionately to the crime.

2. Rehabilitation---corrective. Focus on individual and future; trying to alter actor's behavior; original goal of punishment. Time uncertain.

3. Incapacitation---preventative. No assumptions about individual behavior; justification is prevention. Problems: proportionality of sentence; numbers and proportionality of prisoners; safety of prisoners; eventual release into general population; trends/tendencies for those who fit pattern; high cost.

4. Retribution---corrective. Assumes criminals are rational. Limiting action---state takes control of punishment and dissuades individual retribution/vigilantism; focus on society and offense; satisfying with focus on just desserts and proportionality. Our system is one of mixed theory of punishment. Factors to consider: Individual---mental state; mental capacity at time of the crime; background; cooperation with government. Consider human frailty. Offense---severity; mitigating circumstances; societal costs; alternative options.Individualization in the system---reveals a lot of discretion in the system by various players (police, prosecutor, judge, defendant, defense counsel, executive, media): a. Nature of the offense; b. Representation; c. Individualized factors (race / socio-economic context) d. Decision-making throughout the case (plea offer, cooperation, etc.)

1 3. THE CRIMINAL ACT / VOLUNTARINESS 1) Actus Reus---past voluntary conduct committed within the jurisdiction specified in advance of the statute. 2) An over act is required---act to connect to unlawful intent. (Proctor v. State: ? convicted in violation of statute criminalizing "keeping a place" with intent to use for booze selling, production, distribution). 3) However, act requirement not so literal: sometimes intent is proxy for act that we consider blameworthy. Blurring of mental state and act. Ex: a) Constructive possession = power to control (drugs) + intention of exercising that power (United State v. Maldonado: ? convicted of possessing w/ intent to distribute cocaine; connected w/
seller, left drugs in hotel room together---joint constructive possession). Voluntariness 1) If the statute is silent, may infer voluntariness (Martin v. State: ? home when police arrive, took him on a highway; convicted for drunkenness on public highway. Found no voluntariness, and therefore no intent). 2) If there is not voluntary conduct, there is no intent. (People v. Grant: ? attacks police in bar fight; grand mal epileptic seizure; appeals conviction b/c no instruction on defense of involuntary conduct
---but concern w/ faking.) a) If the act is in some way involuntary (due to illness or mental condition), it may not be deterrable or morally blameworthy---is it something beyond the actor's control? (Grant, Decina) b) But: consider what actions the ? did take (drinking, Decina: driving with epilepsy) and what the consequences may be as a result (even if ? does not have control later on). i) Anticipated Involuntariness: did the actor have cause to think the involuntariness may happen? ? Foreseeability (Decina) 3) Commission of the act must be coupled with intent to commit the crime 4) If statute is unclear in some way---courts break in favor of the accused. Leniency rule. 5) Court has discretion to open or narrow time period. a) Go back far enough and can find some voluntary act (drinking for both Martin & Grant)

4. OMISSIONS AND STATUS OFFENSES Omissions 1) Omissions can be a crime in situations where there is a legal duty to act. (Jones v. United States:
? charged w/ care of infant, who dies of malnutrition; convicted of involuntary manslaughter.) 2) Encompasses wholly passive conduct 3) Situations where there is duty of care: a) Law / statute imposes a duty of care b) In certain relationships (parent/child; husband/wife) c) In a contractual relationship that requires duty to care d) Voluntary assumption of duty to care for another and prevent care by others 2

Status Offenses 1) Cannot punish someone's status a) Robinson v. California: ? convicted under Cal. law criminalizing being an addict based on track marks and his own admission b) Lambert: punishing ?'s status as ex-con c) Johnson v. State: punish ?'s status as pregnant woman and drug addict. 2) Violates 8th and 14th Amendments prohibition on cruel and unusual punishment 3) Issues of fairness and notification (Lambert, Johnsons) 4) Lacks act requirement a) Powell v. Texas: ? convicted of public drunkenness; appeal claiming alcoholism made public drunkenness an involuntary act that should not be punished---fails since there was an act of voluntarily going into public. b) Johnson: involuntary act ('delivery' of cocaine to fetus) 5) Eliminates possibility of rehabilitation

5. PROPORTIONALITY, LEGALITY, SPECIFICITY Proportionality 1) As long as there is a policy choice by the legislature, courts will not interfere. (Ewing v. California: ? steals three golf clubs; under Cal's 3-Strikes law, convicted and got 25-to-life) a) Sentences under 3-Strike laws are not grossly disproportionate---do not violate 8th Amendment (Ewing) b) Application of cruel & unusual punishment limited to DP cases---mandatory life does not violate 8th Amendment. (Rummel v. Estelle: ? convicted of fraud 3x and sentenced to life in prison without possibility of parole.) c) Court has rejected the contention that only violent crimes merit life in prison. (Rummel) 2) Exception: in a non-violent case w/ non-violent offender, life in prison w/o possibility of parole reversed (Solem v. Helm: ? convicted for writing bad checks 3x and sentenced to life in prison without the possibility of parole. SC reversed conviction) a) Solem: Three criteria to consider under 8th Amendment: i) Seriousness of the offense and harshness of the punishment ii) Comparison to sentences imposed in that jurisdiction on other criminals iii) Comparison to sentences imposed in other jurisdictions for same crime 3) Deference to legislatures to craft their laws (Harmelin v. Michigan: ? convicted and sentenced to life in prison w/o parole for 1st-time offense; found with 672g of cocaine and beeper, address book, legal gun, and cash.) a) S.Ct. has established Narrow Proportionality Principle: 8th Amend does not command strict proportionality between crime and punishment---it only forbids extreme sentences that are grossly disproportionate to the crime. There is no such thing as strict proportionality (Harmelin & Ewing) Legality 1) There shall be no crime, without pre-existing law (legislativity).

3 2) Primary basis for American law. Cannot apply laws retroactively (prospectivity). a) Ex post facto issues: lack of notice and due process (violate 14th Amendment) i) Keeler v. Superior Court: ? charged with murder for death of fetus; said he would "shove the baby" out of his ex-wife; kneed/beat her pregnant stomach; child stillborn COD skull fracture. Specificity 1) Operational arm of legality. 2) Addresses vague laws: any laws containing broad terms open to a number of meanings /
interpretations may be challenged. 3) Void-for-vagueness---unconstitutional to have a law/statute so vague that it: a) Fails to give reasonable notice b) Encourages arbitrary or discriminatory application of the law c) Does not give fair warning/notice and allow actor to conform behavior d) Violates other amendments (like 1st Amendment right to associate) i) Chicago v. Morales: Chicago pass ordinance prohibiting criminal street gang members from loitering with one another or others in public places; required police to reasonably believe subjects were gang members; subjects had to be loitering; police had to tell subjects to disperse; that order had to be disobeyed. Found: unconstitutionally vague, punished status crime and otherwise lawful behavior, violated 1st Amendment, etc. ii) Papachristou v. Jacksonville: Jacksonville promulgated anti-vagrancy law that punished many classes of people. Found: unconstitutionally vague; punishes status and otherwise legal behavior. Act Requirement---punishment must be for: (1) past (2) voluntary (must be avoidable) (3) conduct (omission but not thoughts or status) (4) committed within a specific legal jurisdiction (5) specified (specific language to avoid vagueness) (6) in advance (legality: avoid retroactive application) (7) by statute (legality)

6. MENS REA 1) Criminal responsibility requires a choice---a voluntary act or omission (actus reus) 2) Attempt to assign a level of mental awareness: actor's mental state does have significance.

a. Strict Liability 1) Act alone is enough. Do not need to prove mental state. 2) Addresses public welfare, health, safety concerns (minor offenses---not common law crimes) a) Penalties and stigma minor b) Holding actor liable outweighs concerns about mental state because safety issues trump 4

3) Legislature is at liberty to remove intent element from crimes (People v. Dillard: ? convicted of misdemeanor of carrying a loaded weapon in public; ? unaware that rifle was loaded and defense of this lack of knowledge not allowed at trial.) 4) For crimes that are inherently dangerous, public safety and health concerns may overrule.

b. Proof of Intent 1) May only interpret intent when statute is silent for traditional common law, malum in se crimes. 2) Must give ? opportunity to prove to the jury lack of intent for any case that is not strict liability, and thus requires proof of intent. Morrissette v. United States: junk dealer who took old shell casings; violated rule about converting USG property. Statute is silent on intent: SC finds this is a common law crime (theft) where intent is read into the statute: a) Improper to interpret common law/intent-requiring crimes as strict liability crime (and therefore not need to prove mental state): would deprive jury of finding mental state; grant too much power to government; deprive ? of notice 3) Malum in se---wrongs in and of themselves (common law crimes---10 commandments stuff) 4) Malum prohibitum---acts that society has elected to prohibit but in and of themselves are not crimes (public welfare / regulatory crimes) a) Lambert v. California: ? convicted of not registering as a felon in LA; conviction overturned. Wholly passive conduct; violation of 1st Amend, due process, notice. Exception to ignorance is not excuse: Strict liability is unconstitutional when: (a) Legislature is punishing the exercise of a fundamental right (b) When the punishment is not predicated on some voluntary act or omission

c. Culpability Categories 1) Intent must be shown w/r/t each element of the crime (MPC)---examine culpability w/ some precision 2) General intent may be inferred---
a) Applies to reckless and negligent conduct; b) Transferable; c) Assumption that actor intended for the natural and probable results and legal consequences; d) Refers to broader question of blameworthiness or guilt, including mens rea and responsibility; e) Generally does not have lesser included crimes. 3) Specific intent may not be inferred---
a) Applies to purposeful and knowing conduct; b) Not transferable; c) Mental element of any crime; d) Unexecuted intention to do some further act; e) This intention for act has specific consequences; f) Includes some lesser included offenses Categories of culpability:

5 Culpability Level

Mental State


Intent/purpose to commit the crime in question (specific intent)


Almost certain (knowing) actions will induce consequences (specific intent)


Conscious disregard of substantial risk that action will induce consequences (general intent)


Actor is not conscious of risk, though reasonable person would be; (grossly) deviating from a reasonable person's standard of care (general intent)

Strict Liability

Act alone suffices; mental state irrelevant

(Regina v. Faulkner: ?, while attempting to steal rum, lights match that burns down ship. Court finds Faulkner not guilty w/r/t arson, since he lacked the requisite intent to burn the ship): Culpability level Purposefully Knowingly Recklessly Negligently Strict liability

Act light match light match light match light match light match

Why to burn ship help steal rum to help steal rum1 gross deviation from standard of care

nothing to prove

1) Supreme Court has said that due process requires mental intent must be proven, not assumed, but actor may be punished for unintended consequences.

d. Mistake of Fact 1) 2) 3) 4)

1 Mistake of Fact accepted as an affirmative defense Do not want to punish someone without a culpable mental state. Mistake negates a necessary element of the offense (mens rea), Irrelevant for strict liability cases (Regina v. Prince: ? took 14-year-old (looked 18) from 'care of her father'; found guilty. ? claimed lack of guilty mind, but Court chooses not to read a mental state to be proved / read into the statute) a) Exception: State v. Guest (Alaska 1978): ?s had sex w/15-year-old (said she was 16 and looked it); charged with statutory rape, though statute did not specify intent required. Court holds that honest and reasonable belief that victim was under 16 is a permissible defense b) If statute conditioned on reasonableness, mens rea required is negligence

Substantial chance the match would burn the ship and he lit it anyway---consciously disregarded a substantial risk

6 Model Penal Code SS 2.04: Ignorance or Mistake (1) Ignorance or mistake as to a matter of fact or law is a defense if: (a) the ignorance or mistake negatives the purpose, knowledge, belief, recklessness or negligence required to establish a material element of the offense; or (b) the law provides that the state of mind established by such ignorance or mistake constitutes a defense. (2) Although ignorance or mistake would otherwise provide a defense to the offense charged, the defense is not available if the defendant would be guilty of another offense had the situation been as supposed. In such case, however, the ignorance or mistake of the defendant shall reduce the grade and degree of the offense of which he may be convicted to those of the offense of which he would be guilty had the situation been as he supposed. (Can mitigate)

e. Mistake of Law 1) Ignorance is No Excuse. 2) No statute says you have to know of the statute---do not want to award ignorance/discourage people from knowing the law, and want to discourage false defense claims a) No defense to say unaware of a statute (United States v. Baker: ? selling counterfeit watches; claimed he did not know it was illegal; was on notice and had voluntary, not passive, conduct) 3) In rare situations can be a defense when there is reliance on official sources that fact-finder finds to be reasonable. (Commonwealth v. Twitchell: ?s convicted of involuntary manslaughter of their son; were Christian Scientists, and relied on publication from church that included information from Mass. AG on spiritual treatment of children. Allowed to present mistake of fact defense.) a) May also be a defense when there is wholly passive conduct, no notice, and law not widely known (Lambert). b) Assumption that people will know the law, and if they do not, their conduct will trigger a question, and if they are close to that line will seek advice.

f. Capacity for Mens Rea 1) May introduce evidence to negate intent for specific intent crimes: a) Can introduce defense based on mental impairment to negate proof of requisite mental intent for specific intent cases (where must show purposeful/knowing) i) Exception: allowed in for general intent case---Hendershott v. People: ? assaulted girlfriend; assault = general intent; prevented at trial from presenting evidence that owing to mental illness, could not form the requisite intent, lacks blameworthiness---Court sets aside verdict and remands for new trial. This case is the exception---usually cannot raise this defense for general intent cases. b) Need to negate intent for each element in that defense 2) Some states do not allow evidence of intoxication as a defense (policy choice). a) If intoxication defense is raised, need to show that ? was so inebriated (through quantity) that could not function (could not form intent) (State v. Cameron: girlfriend flips shit while drunk; attacks people; found guilty of assault and resisting arrest; fails to prove intoxication defense) 3) Voluntary intoxication is a defense when it renders a person so incapable of forming the requisite intent and if the law recognizes proof of a lack of mental state a) Intoxication defense can only be used when it negates a required element of the offense (specific intent crimes, but not for general intent crimes) b) MPC rejects allows consideration of evidence of intoxication only to negate specific levels of culpability


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