Criminal Law Outline 1) What’s a crime? a) Act or omission and its accompanying state of mind which, if duty is shown to have taken place, will incur a formal and solemn pronouncement of the moral condemnation of the community i) This means a crime is more than something that’s punished. (1) It deals with a social harm that is so morally reprehensible, as to be made criminal. b) In studying criminal law, keep in mind: i) How do various jurisdictions define their criminal offenses ii) What are the basic elements common to every crime in the Anglo-American tradition iii) What does the prosecution have to prove in order for the fact finder to find a person guilty iv) What are the elements of particular crimes, i.e., murder, rape, burglary. v) What distinguishes first degree from second degree murder vi) What level of punishment does the person who has committed a crime deserve 2) Sources of criminal law a) Common law i) Judge made law ii) Most criminal law matters covered by statute; however, the meaning given these statutes is often determined by reference to the common law c b) Statutory codes i) Criminal law largely governed by statutes ii) Criminal codes that define general principles (1) Jurisdictions without criminal codes adhere to statutes
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Criminal Law Outline
1) What’s a crime?
a) Act or omission and its accompanying state of mind which, if duty is shown to have
taken place, will incur a formal and solemn pronouncement of the moral condemnation of
the community
i) This means a crime is more than something that’s punished.
(1) It deals with a social harm that is so morally reprehensible, as to be made
criminal.
b) In studying criminal law, keep in mind:
i) How do various jurisdictions define their criminal offenses
ii) What are the basic elements common to every crime in the Anglo-American tradition
iii) What does the prosecution have to prove in order for the fact finder to find a person
guilty
iv) What are the elements of particular crimes, i.e., murder, rape, burglary.
v) What distinguishes first degree from second degree murder
vi) What level of punishment does the person who has committed a crime deserve
2) Sources of criminal law
a) Common law
i) Judge made law
ii) Most criminal law matters covered by statute; however, the meaning given these
statutes is often determined by reference to the common law c
b) Statutory codes
i) Criminal law largely governed by statutes
ii) Criminal codes that define general principles
(1) Jurisdictions without criminal codes adhere to statutes
c) Model penal code
i) Drafted by American Law Institute in 1962
ii) Not directly enforceable n any state; however, half the states have enacted criminal
statutes drawing heavily from the MPC wording/concepts
3) Why do we punish? (Metzger stresses this point)
a) Deterrence
i) General deterrence
(1) Punishment is bad enough to deter general population from committing crime
ii) Specific deterrence
(1) Punishment is bad enough to deter offender from committing the crime ever again
iii) Incapacitation
(1) Incarcerate/restrain offender to ensure incapacitated from committing additional
crimes
iv) Rehabilitation
(1) Give the offender treatment to change behavior; this is done by not scaring the
offender into changing behavior (specific deterrence) but by reforming the
offender’s motivations
v) Retribution
(1) Eye for an eye; getting just desserts for committing a crime
(2) Communicative retribution: Where the retribution communicates values.
vi) Education (aka signaling)
(1) Signaling/sending messages about societal values to society in general; educate
people about what is wrong (functions of the law: tell people how to act/how to
feel)
b) Theories of punishment
i) Utilitarianism Jeremy Bentham
(1) Form of consequentialism; justification of a practice depends only on its
consequences
(2) Punishment is justifiable if, but only if, it is expected to result in a reduction of
crime. Punishment must be proportional to the crime, i.e., that punishment be
inflicted in the amount required (but no more than is required) to satisfy utilitarian
crime prevention goals.
(a) Purpose of all laws is to maximize net happiness of society
(3) See: general deterrence, specific deterrence, rehabilitation
ii) Retributivism Immanuel Kant
(1) Form of nonconsequentialism; punishment is justified when it is deserved; it is
deserved when the wrongdoer freely chooses to violate society’s rules
(2) Punishment given in proportion to culpable wrongdoing. Some people are more
moral than others.
iii) NOTE: look at the micro to macro messages inherent in punishments
c) Malum in se
i) Wrong in and of itself; Crimes that are inherently dangerous, bad, or immoral in
themselves
d) Malum Prohibitum
i) Law says it’s wrong;
(1) Prohibition is necessary to regulate the general welfare
e) NOTE: some things slide from malum in se to malum prohibitum and vice versa
i) Smoking marijuana
ii) Drunk driving
f) Cases
i) Regina v. Dudley (1884) pg. 7-11
(1) Two seamen were charged with murder (followed by eating) a fellow seamen
when they were all lost at sea.
(a) They justified their behavior as a necessity
(b) Underlying moral implications:
(i) Sacrifice one for all; survival of “weakest” (quality of life—family, etc.;
status/obligations; eat the bigger person?); should person being sacrificed
have a say; wait for person to die; volunteer
(2) Rule: Killing is only justified in self defense; temptation is no defense for
murder; it’s not murder if it is justified, however, necessity is not a justification or
a defense for murder
(3) Held: The killing of Parker under the circumstances (of starvation while lost at
sea) by Dudley and Stephens was felony and murder
(a) Reasoning: Sending a moral message; it is never okay to play good; worry
the impact an acquittal will have on future behavior; nationalism
(b) Sentenced to death, but a pardon was given. *We can surmise there is
communal discomfort to this being murder and warranting the death
penalty
ii) People v. Suitte (1982) pg. 11-19
(1) Charged with criminal possession of a weapon in the forth degree. carried an
unlicensed gun in the state of New York. Gun legislation meant for general
deterrence
(a) Pled guilty and sentenced to 30 days in jail
(i) He’s a “family man” who probably didn’t register the gun because he
didn’t find it intrinsically immoral to not do so
1. (malum in se vs. malum prohibitum)
(2) Rule: A person is guilty of violating the gun law if their gun is unlicensed and
will be sentenced accordingly, even if they are a first time offender
(3) Held: Possession of an unlicensed gun in New York is against the law, even for
first time offenders; sentencing should be administered
(a) Reasoning: This is bigger than Suite; because this is general deterrence, the
aim is to stop others from carrying unlicensed guns by punishing offenders;
warning of what will happen; someone could steal an unlicensed gun and use
it; law enforcement would be incapable of tracing it; Suite isn’t immune to
legislature to get tough on crime; the gun law provides no blanket exceptions
of first offenders
(b) Sentenced to 30 days in jail
(i) Dissent: points out issues with rules/predictors of how the law is moving;
questions if punishing Suitte by sending him to jail appropriate, after all, is
it proper exercise to jail a first time offender who poses no serious threat
to the community
iii) Cases looking at the proportionality of punishment
(1) Ewing v. California (2003) pg. 103-111
(a) Held: not a violation of the Eighth Amendment where California’s three
strikes law was used to produce a 25-years-to-life sentence for a repeat
offender who stole $1200
(i) Problem wasn’t that D stole $1200 worth of merchandise but that he had
done so AFTER having been convicted of at least two violent/serious
felonies
(2) Other cases:
(a) Solem v. Helm: set out three factors to determine whether a sentence is
disproportionate as to violate the Eighth Amendment
(i) The gravity of the offense compared with the harshness of the penalty
(ii) The sentences imposed on other criminals in the same jurisdiction
(iii) The sentences imposed for the same crime in other jurisdictions
1. Using these factors, Solen had struck down as disproportionate a life
sentence without possibility of parole for a seventh nonviolent felony,
which was a bad check for $100
(b) Rummel v. Estelle (it did not violate the Eighth Amendment for a State to
sentence a three-time offender to life in prison with the possibility of parole)
(c) Harmelin v. Michigan (sentence of life in prison without the possibility of
parole for a first time offender convicted of possession of 672 grams of
cocaine was not so grossly disproportionate that it violated the Eighth
Amendment)
4) Statutory interpretation
a) How to read statutes
i) Read statute
ii) Definitions
iii) Cross reference
iv) Break into component parts
v) Find essential components
b) Look at three important pieces to statutory constructions
i) Plain language
ii) Canons of construction
(1) noscitur a sociis: meaning of doubtful terms or phrases may be determined by
reference to their relationship with other associated words or phrases
(2) ejusdem generis: where general words follow a specific enumeration of persons
or things, the general words should be limited to persons or things similar to those
specifically enumerated
iii) Legislative intent/history
(1) Policy analysis
(2) Broad vs. narrow interpretation
c) Problem with statutes is that they can be ambiguous or hard to interpret
i) Cases
(1) United States v. Dauray
(a) Held: wording of the statute was ambiguous as applied herein
(i) Statute punishes the possession of “matter,” three or more in number,
“which contain any visual depiction” or minors engaging in sexually
explicit conduct.
1. However, Dauray argues that the statute is ambiguous as applied to
possession of three or more pictures and that the rule of lenity should
there fore apply to resolve this ambiguity in his favor
d) Rule of lenity: Criminal statutes must be strictly construed against the prosecution:
if a statute has two reasonable interpretations, the one that is more favorable to the
defendant must be applied
i) Better to let ten guilty men go free than to let one sit in jail
e) All elements of the statute must be proven beyond a reasonable doubt
i) Burden of proof is on the prosecution and the defendant need not make any
affirmative proof of innocence
5) Proving Matters
a) Government must prove all elements beyond a reasonable doubt
b) Defendant must prove affirmative defenses by preponderance of the evidence but on
appeal this gets shifted to beyond reasonable doubt
c) Circumstantial evidence can get you to this threshold; much stricter scrutiny
d) Government does not have to address all elements of defense, just provide their theory of
guilt
e) On appeal, court looks at evidence in light most favorable to prosecution
f) Defendant can choose either bench or jury trial
g) Statistics show that the better the narrative, the more likely you succeed with judges or
juries
6) Concurrence of Elements
a) The prosecution must prove every single element beyond a reasonable doubt (MPC 1.12)
b) Cannot convict unless each element of an offence is proven beyond a reasonable doubt
c) In the absence of complete proof, the defendant is assumed to be innocent (not guilty???)
7) Actus Reus
a) A voluntary act
i) Bodily movement
ii) Done consciously
iii) Knowing controlling/possession
b) Involuntary acts do not constitute actus reus
c) Habits, however, are sufficient actus reus
d) AR = conduct + attendant circumstances + result
e) When mens rea is given in statute, it applies to the conduct and result elements ONLY!
Not to the attendant circumstances
f) When is omission a voluntary act?
i) Special relationship
ii) Statute
iii) Contract to provide care
iv) Voluntary assumption of care
v) Creation of peril
vi) Duty to control the conduct of another
vii)Duty of landowner
8) Mens Rea
a) Culpable states of mind
b) Define crime by actor’s intent and not the result
c) Same voluntary act, same result, same actus reus, BUT can have different mens rea.
d) Mens rea under the MPC
i) Purposely
(1) Subjective standard
(2) Actor had to have intent or the conscious objective of engaging in conduct; also