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Criminal Law Outline

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II. The Voluntary Act Doctrine a. A crime requires an exercise of will i. Act is voluntary even if done due to threat, need, or coercion. b. Every actus reus defined within the crime must be voluntary i. Martin v. State: Public intoxication charge. D had voluntarily intoxicated himself, but was involuntarily brought in public by police. Not guilty. ii. People v. Gastello: Bringing drugs into jail. D did not declare drugs when he was brought into jail for another charge. Coming to jail wasn't voluntary (arrested for another crime), so not guilty.

1. 5A consideration: D did not have to incriminate himself for drug charge in order to avoid the brining drugs into jail charge. c. Larger voluntary act can include some involuntary actions i. People v. Decina: D had epilepsy, got behind wheel, had seizure and ran over children. Voluntarily disregarding the risk of driving within his condition satisfied the requirement even though the crash was not.

1. Mens rea of R/N toward act of getting in car d. Involuntary acts i. Physically Coerced Movement

1. Ex: Someone takes your fist and hits someone with it ii. Reflex Movement

1. No liability for reflex actions triggered by action of another (scaring you, hitting your kneecap, spraying hot water, etc.) iii. Disease-Related Movement

1. Still liable for doing activities you know are dangerous because of your disease iv. Unconsciousness

1. Ex: Mother rolling onto baby in her sleep (still possible liability for reckless endangerment, etc.) e. MPC SS 2.01 i. Not guilty unless liability is based on conduct that is a voluntary act or omission to do something of which you are physically capable.

1. Omission: must be proscribed by the MPC statute or there must be a duty to perform the omitted act imposed by law.

2. Possession: requires knowing procurement of the thing OR knowing control of it for long enough to be able to terminate possession. The Principle of Legality a. Nulla Poena Sine Lege: No penalty without a law. i. Forbids judicial (common law) creation of new crimes.

1. Old crimes come from common law, but actors have advance specification of these

2. Rex v. Manley: Woman made false reports to police and was convicted of "public mischief" which was a judge-made crime. a. Conviction goes against modern principle of legality. ii. All British crimes up to 1776 are considered part of the "law" b. Legislative will is superior, but not dispositive i. Courts can overrule on constitutional grounds. c. Rationales for Principle of Legality i. Old: Deterrence. People needed to know what conduct was illegal.

1. Matter of fairness: only can be punished for something already set forth.

2. No longer works; criminals act not out of ignorance but because they believe they won't be caught a. People also don't read the law. ii. Intermediate: balance of powers.

1. Protect legislative supremacy a. As body most answerable to people, best fit to define crimes

2. Prevent judges from abusing power iii. Current: Control police and prosecutors

1. If judges make law, police can try to persuade them to make new laws by making arrests

2. Would allow police to arrest and hold anyone they want since theoretically some judge might find them guilty

3. Invites abusive and arbitrary enforcement. III.

IV. Vagueness Doctrine a. A vague law is unconstitutional if: i. If gives insufficient fair warning ii. Its lack of specificity creates opportunity for arbitrary and discriminatory enforcement

1. Shuttlesworth v. Birmingham: Statute cast net so wide it gave police police-state like powers. b. Balancing the Vagueness Doctrine i. Legislative Intent

1. Courts cannot use doctrine to strike down statutes at will ii. Specificity in the statutory construction

1. E.g. Lanzetta v. New Jersey: No legislative direction on how the term "gangster" should be construed. iii. Constitutional rights (due process of law) iv. Foreseeability of judicial interpretation

1. Saving Construction: Judges can save a vague law by interpreting it in a narrow light that does not facilitate arbitrary and discriminatory enforcement. a. Enforces statute in a constitutionally valid (due process) way

2. E.g. Middlebrooks v. Birmingham: FILL IN v. Ability to enforce statute evenly

1. Some statutes can't be applied to everyone, or everyone would be in jail

2. E.g. "street sweeping" vagrancy laws that could ensnare anyone, aimed at giving cops an excuse to arrest homeless people. vi. Tolerability of Vagueness

1. All statutes are vague to a degree

2. Vagueness allows for enough flexibility in enforcement to prevent the criminals the law intends to catch from slipping through on technicalities. c. Papachristou v. City of Jacksonville: Criminal statute must give people of ordinary intelligence fair notice of which acts are criminal i. D's arrested under vagrancy laws which prohibited vague, undesirable acts

1. Application problem: Net cast too wide; cops empowered to selectively enforce law to arrest anyone they choose a. Generally used against minorities

2. Content problem: Made normal and innocent acts criminal to fulfill police goal of getting people into jail. ii. Statute was too vague to satisfy Due Process Clause Fair Notice and Unforeseeability a. Test for Fair Notice: i. Advance notice of what is criminal (principle of legality) (ex post facto law) ii. Adequate specificity (vagueness doctrine) iii. Appropriate judicial construction (ex post facto law)

1. Violation of due process to construe otherwise valid statute in a way that is unforeseen. a. This creates ex post facto law. b. Unforeseeable Enlargement: State may not construe the law in a way that it extends beyond any reasonable interpretation of the written statute. i. Bouie v. City of Columbia: Blacks arrested for sitting at lunch counter. Charged under trespass statute designed to protect livestock from hunters. Violation of due process; no fair notice of enlargement. ii. Rogers v.Tennessee: Reasonable enlargement. Court abandoned old common law "year and a day" requirement for death and used it convict D of murder (victim had died after 15 months).

1. Direct comparison to Bouie: Does not violate Due Process because this was not unexpected or unreasonable.


2. Scalia dissent: lower court created all the problems in this case by saying the common law was the law and then changing it instead of saying the common law was never TN law. iii. Bouie sets outer bounds on what courts can do to enlarge statutes. Rogers is an illustration of how judges can clarify law and apply it to case at bar. c. Legislative Supremacy and Foreseeability i. It is the purview of the legislature to change laws as times change.

1. Jurisdictional Limitation: Boundaries on what court can do.

2. Not the court's role to update laws to fit circumstances.

3. Court can provide clarity to legislation in certain situations, depending on the circumstances. ii. Doctrine of Strict Construction

1. Construe strictly when at all possible

2. If MPC, use SS 1.02 as guidance for construction. iii. Keeler v. Superior Court: D killed viable fetus by stomping on wife. Common law had "born alive" requirement for murder charge that legislature had not abandoned. Not guilty of murder.

1. Legislature's failure to make the change when common law was codified in 1872. Court inferred they did not intend to expand murder to include feticide. a. Leg history more viable pre-Scalia. (Likely Nino response: who's to say feticide wasn't already covered?) b. Most likely scenario: they never thought about it, so don't use it as the crux of your opinion.

2. Constitutional element of case: Expansion of murder statute (by dropping "born alive") is an ex post facto law. Deprives D of his due process rights as he would not have had notice of enlargement.

3. Jurisdictional limitation: Up to legislature, not courts, to decide if and when "born alive" should be abandoned.

4. Policy element: Courts refrain from ruling on fetus as a human as it would have broad effect on laws of abortion. iv. People v. Sobiek: Theft from partnership. Court departed from statute despite not doing so in Keeler

1. Difference: No wide-ranging policy implication (abortion)

2. Courts are more comfortable pushing boundaries of fair notice and foreseeability when case has fewer implications. a. No stepping on legislative intent to expand criminal statute to punish someone who stole money. d. Strict v. Permissive Application of Ex Post Facto Principles i. O'Connor: Court may retroactively modify statutory language that is indefensible in the broader context of the law at issue.

1. Gets justice done in each case ii. Scalia: Consistent interpretation and application of the law takes precedence over construing the law to fit the case at bar. An ex post facto law is always an ex post facto law. Omissions a. Failure to commit an affirmative act you have a legal duty to perform i. E.g. homicide, "does or omits to do something that causes death" ii. Sources of duty

1. Duty from statute a. Most jurisdictions recognize common-law duties as well. b. More duties from civil statutes than penal ones.

2. Duty from contract

3. Duty from relationship (parent/child) iii. No duty to rescue

1. Omitting to help someone is generally not criminal

2. Taking responsibility and then neglecting to follow through is a crime. iv. Moral obligation /=/ legal obligation

1. No duty to care for children unless the guardian of or paid to do so a. Jones: D who grossly neglected children in basement not guilty because she had assumed no legal duty. b. Billingslea v. State i. Man left his elderly and ill mother to rot to death in the bedroom. ii. Vagueness doctrine: Statute punished doing harm to the elderly by omission but was nonspecific on the duty element

1. Could not be read to confer duty on D without an unforeseeable enlargement

2. Legislative error for bad statute; not court's job to enlarge iii. Case binding to weak indictment: D had turned away aiding granddaughter, but P did not charge him on interference

1. Court can only find D guilty on indictable charge

2. This was an affirmative act, and D was indicted on omission

3. Indictment, as tool of notice, is binding on entire case and cannot be amended.

4. Judge can only instruct jury on terms of indictment (in this case, only on omission and not action) c. Assumption of Duty i. Once you assume responsibility for a person, you are criminally liable for them.

1. Assuming duty relieves the general public from any duty they may have had

2. Assuming duty can sequester the person in need, preventing others from tending to their needs. ii. Includes marriage (a form of relationship and contractual duty) iii. Medical assistance: duty tolls when a person is taken into the care or custody of D

1. Oliver: D took drunk man into her home where he died of OD. Guilty, duty assumed when she took him out of public.

2. Beardsley: Victim voluntarily came to D's house and then OD'ed. Not guilty, her choice to do both. d. Omissions in Medical Care i. Doctors can decline to prolong life but cannot act to end it

1. Euthanasia by omission technically legal, but clearly illegal if done by commission

2. Mistake justification: much worse to kill a person who could live than to leave a vegetative person alive.

3. Unresolved and sensitive area of criminal law MENS REA: THE CRIMINAL MIND VI.

COMMON LAW MENS REA a. Negligence: Should have foreseen a probable result of his actions i. Faulkner: "Reasonable consequences of acts done with a wicked intent" or "probable consequences of a willful criminal act"

1. This version of negligence may depend on commission of another crime. ii. Inadvertent risk creation b. Recklessness: Foresaw harm resulting from actions and acted anyway i. "Actual intention," not "probable consequences" ii. Cunningham: D not guilty if he didn't foresee the reasonable consequences of his actions. c. Specific Intent i. Actual intention, conscious desire, actual knowledge, etc.

1. Includes most theft crimes

2. "Know" signals specific intent, but the word "know" is sometimes implied from the context ii. Honest mistake of fact is always exculpatory

1. Green v. State: D hit hogs and put them in his truck because he thought they were his hogs. His mistake was at least negligent, but theft is an SI crime so he wasn't guilty.

2. Ogilvie: Army guy who wrongly thought he got divorced in Panama and then married again in US. Making false statements is a specific intent crime, so his honest but reasonable mistake about his divorce is exculpatory.


a. Statute includes "know" signal

3. Exception: Mistake is not a defense if under mistaken belief you were still committing a crime. Mistakes to grade are not exculpatory. a. Ex. If you know you're stealing jewelry, doesn't matter if you think it's worth much less than it is. Liable for however much you steal. d. General Intent i. All crimes that don't require specific intent

1. Includes most recklessness and negligence

2. Negligence is the general standard of liability, although it's not clear-cut like in the MPC sense ii. Mistake of fact must be honest AND reasonable

1. Walker: D charged with abduction of girl he thought was his granddaughter. General intent crime; jury instructed to acquit if they found his mistake reasonable.

2. Ogilvie: Bigamy is general intent, so D's unreasonable mistake in thinking he was divorced is not exculpatory. iii. Specific intent crimes may have general intent elements

1. Yermian: D made statements he knew were false on security clearance form. Charged with lying to feds, claims he didn't know they were feds. a. SI element: making false statements b. GI element: jurisdiction. If D's mistake as to jurisdiction was not reasonable, he's guilty. (Guilty here because he should have known paperwork was federal.) iv. Problems With General Intent

1. Unreliable, slippery, and undefined for most of history but the common law has always functioned in spite of that.

2. Not all crimes come with a mens rea label a. Cannot automatically assume these are general intent crimes b. Look to context and prior common law application e. Lesser Legal Wrong i. Mistakes of grading, at common law, not exculpatory

1. Dean v. United States; Similar policy applied to 924(c) offense, although there was no mistake. Persons can be held liable for unintended and additional consequences of their unlawful actions. ii. Law less concerned with giving the guilty extra punishment than it is with not punishing the innocent f. Lesser Moral Wrong i. Common law convicted for mistakes that would have made conduct legal but still immoral. ii. Strict liability for moral offenses

1. E.g. statutory rape: Even if you're wrong about the age, it still offends societal norms, so it's not exculpatory. MPC MENS REA a. Material Elements SS 1.13 (10) i. D must act with a mens rea for each material element of the offense ii. Conduct

1. The action or omission (or series thereof)

2. Within the actor's control iii. Circumstances

1. External facts that must be in existence for crime to be committed

2. Outside of actor's control iv. Results

1. Consequences of conduct incorporated in definition of the offense a. Not always specified by statute b. MPC 2.02 (2) Terms i. Purpose

1. Conduct: Conscious Object to Engage

2. Circumstances: Aware, same as knowledge

3. Result: Conscious Object to Cause


ii. Knowledge

1. Conduct: Aware of nature of actions

2. Circumstances: Aware they exist

3. Result: Practically certain conduct will cause them. iii. Recklessness: Conscious disregard of risk that is a gross deviation from the standard of conduct of a law abiding person.

1. Requires a more subjective evaluation of D than P/K (simple yes or no)

2. Signal words "substantial" "unjustifiable"

3. Awareness of facts of risk and facts that make it unjustifiable a. Includes willful blindness iv. Negligence: Should have been aware that risk is a gross deviation from the standard of conduct of a law abiding person.

1. Also requires the more subjective evaluation v. Distinctions between the terms

1. The line between purpose and knowledge is how certain and embedded in the actor's conduct the knowledge is

2. Recklessness advertently creates risk, negligence inadvertently creates risk. vi. Strict liability: none of the four mens reas are required c. 2.04 Mistake i. Anything that precludes the proving of purpose negates purpose ii. An honest mistake negates knowledge iii. A non-reckless mistake negates recklessness iv. A reasonable mistake negates negligence. d. 2.02 (3) Offenses Silent to Mens Rea i. Default is recklessness: ONLY APPLIES TO MPC STATUTES ii. Drafters agreed that negligence liability was exceptional, so R is minimum standard. e. 2.02 (4) Grammatical and Syntactical Ambiguity i. Mens rea term used for one material element of an actus reus goes to all material elements unless a contrary purpose plainly appears. ii. The mens rea term used for one actus reus does not extend to any other actus reus that makes up the crime. IGNORANCE OF THE LAW (IGNORANTIA JURIS NEMINEM EXCUSAT) a. Criminal liability does not depend on the actor's awareness of the criminality of their conduct i. MPC SS 2.02 (9)

1. No mens rea terms apply to awareness of the law, unless the law itself requires so.

2. Exceptions (via 2.04(3)) a. Fair notice not given ("not been published or reasonably made available") b. D acts in reasonable reliance upon an official, but erroneous, statement of the law via i. Statute ii. Judicial opinion iii. Administrative order iv. Interpretation of a public officer charged with interpreting or enforcing the law

1. Guard against entrapment?
a. Cox: D not liable for not knowing anti-picketing law because cops told them where to picket.

2. Rewards people who seek out the law. c. These are affirmative defenses d. Some state statutes have adopted these ii. Common law: no mistake of law, however honest or reasonable, can be exculpatory

1. Fox: D thought it was lawful to buy ephedrine and was wrong, so he was guilty. If it was a mistake of fact---he reasonably thought the stuff he was buying was not ephedrine---he would have been innocent.


2. Traditional justification: would allow each person to have his own interpretation of the law that courts would have to apply to him. a. The law is as it is, not as we want it to be b. Allowing this excuse to be exculpatory would encourage people to be ignorant and insulate themselves from the law. c. Would force P to prove D knew law in every single case.

3. MPC Exceptions do not apply a. Fair notice: Lambert, but it's the exception that proves rule b. Reasonable reliance i. Hopkins Pastor who illegally advertised marriage services was not excused by his reliance on bad advice from the DA. ii. Striggles Owners of illegal gambling device not excused by lower court ruling that device was OK. b. Mistake of non-criminal law i. MPC and Specific Intent Common Law Crimes

1. Can be treated as a mistake of fact if it negates a mens rea element of a specific intent crime. ii. General Intent Common Law Crimes

1. Usually no mistake of any law was exculpatory a. Long: Bigamy case, GI so reasonable mistake of divorce law doesn't excuse. Had it been MPC he would have been excused. b. Required less than knowledge, so D didn't have to know the non-criminal law to be liable for being mistaken about it.

2. Sometimes exculpatory if it is ambiguous whether the mistake is of non-crim law or of fact and if treating it as a mistake of fact would get justice done in the case. a. Bray: Status as a convicted felon treated as fact. INTOXICATION a. Common Law i. General Intent Crimes

1. Intoxication is not admissible as evidence to negate mens rea for general intent crimes a. GI Negligence: Standard is reasonable person (who does not get intoxicated), not the reasonable intoxicated person. b. GI Recklessness: Voluntary intoxication is reckless

2. P can satisfy mens rea element simply by proving intoxication. a. Gives P another way to get there b. Takes a defense away from D ii. Specific Intent Crimes States Split

1. Intoxication is never automatically exculpatory, but D can raise it as a defense in some states.

2. Ohio Rule Majority a. Intoxication negates purpose or knowledge if D can the intoxication was such that he did not have the capacity to form the specific intent. b. Affirmative defense, burden of persuasion on D

3. Virginia Rule a. Intoxication evidence is never admissible to negate any SI crimes i. Exception: 1DM, dropped to 2DM if too drunk to premeditate b. D treated as sober; jury asked if hypothetical sober D would have had the specific intent, purpose or knowledge.

4. California Rule a. Intoxication negates purpose or knowledge if D can show he acted without it because of intoxication. b. MPC SS 2.08 i. If recklessness is the mens rea, and intoxication has made D unaware of the risk he is alleged to have disregarded, the unawareness is immaterial.

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