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CRIMINAL LAW OUTLINE
I. Types of Legal Arguments
“Legal Reasoning” techniques that we use to persuade others:
- (^) Analogy (precedent, compare to other situations)
- Antic dotes (tells a story)
- Logic (deductive, inductive-learning from experience)
- Intuition
- Deontological (as a matter of principal, intuitively know right from wrong)
- Theological ( utilitarian - society will benefit from consequences imposed)
- Rhetoric (appeal to raw emotion)
- Ad Hominem (“argue against the man” personal attacks)
II. Justification of Punishment
- Punishment is the social practice of intentionally inflicting suffering on certain individuals. Two main theories of:
- (^) Retributive : Punishment is justified because people deserve it (looks back);
- Utilitarian : justification lies in the useful purpose that it serves (deterrence) (looks forward).
*For a consistent utilitarian there is a net social gain by punishing innocent person as an example if it prevents further crime, (benefit would outweigh the harm to the individual). *For someone who believes in mixed theory ; if a criminal poses no further threat to society and you could pretend to punish him without actually doing it, and the cost would be less to the state than if you did punish him, you should let him go with out punishment.
Rational-Actor Model: Economic approach to law that potential criminals consciously or subconsciously calculate costs and benefits, even in the context of “crimes of passion”.
Purposes of Punishment:
I. Retribution ; punishing because defendant deserves it. ( Deontological argument .) A. Advocates : A.1. Kant : Penal law is a categorical imperative; should not punish UNLESS the individual has committed the crime; principle of equality: punishment should fit the crime A.2. Stephen : It is morally right to hate criminals; punishment should give expression to that hatred; criminal justice is to righteous disapprobation as marriage is to (sexual) passion. Punishment:crime as marriage:sex A.3. Royal Commission : Citizens (rightly) feel revulsion for criminals (retribution); society needs to punish in order to maintain respect for the law (utilitarian argument supporting official retribution).
A.4. Durkheim : Criminal should suffer in proportion to his crime to atone for his injury to society (deontological argument); official punishment necessary to maintain social cohesion (utilitarian argument supporting official retribution). B. (^) Commentators : A.5. Moore (1): Clarifies that retribution in its purest sense is the belief that the moral deserts of the offender is a sufficient reason for punishment; retributivists also believe that only the guilty should be punished. A.6. Morris : Punishment of criminals is morally right (“fair”, “just”) because they have upset the balance of benefit/burden of non-interference with other persons or their property; punishment restores the balance; FORGIVENESS could also reset the balance. A.7. Moore (2) : Mixed theory: punishment is justified if and only if it achieves a net social gain AND defendant deserves it. But do people really believe this or are they really retributivists at heart? C. Critics : A.8. Bentham : punishment is mischief; it is evil (because it reduces the happiness of a human being). A.9. Murphy : Criminality is economically based; many commit crimes because they have need or deprivation; society is responsible for placing them into this position of need and deprivation; thus, not fair for society to punish them for crime. There is no equilibrium to be restored. (Capitalist society also fosters greed, the other source of crime…) A.10. Mackie : Retribution is repaying evil with evil. Can’t be morally defended, simply feels right due to biology and sociology.
II. Deterrence (prevention): punishment is justified because it reduces (discourages) crime later, primarily through fear of punishment in the future. Specific : this perpetrator; General : others. Works with white collar crime b/c they are usually calculating and rational, however may not work for heat of the moment A. Advocates :
- Bentham : Punishment only justified if it augments the total happiness in the community by preventing future crime; it is not justified if it is groundless, inefficacious, unprofitable, or needles. A person will not commit a crime if he expected pain of punishment to exceed the expected value, pleasure, or good of the act. ( Rational-actor model ).
- Posner : Agrees with Bentham. B. Commentators :
- Andenaes : Deterrence works through the strengthening of moral inhibitions and creation of law-abiding habits.
- Robinson & Darley : Deterrence works through the creation and reinforcement of shared norms- “norm-nurturing”. Very dependant on the law remaining morally credible, which requires doing justice, which means only punishing those who deserve it. (A form of “mixed theory” effective deterrence depends on being true to the public’s sense of retribution) C. Critics :
- Kant : Never right to use person as a means to an end.
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2.ix. Concern that lesser punishment will depreciate the seriousness of D’s crime. 2.x. Rejects notion that public humiliation (shaming etc.) serves the function of imprisonment.
Moral Influence: Punishment is a concrete expression of society’s disapproval of an act, helps to strengthen the public’s moral code. More than threat of punishment people obey the law because: 8.1. They fear society’s disproval (compliance by normative social influence) 8.2. They see themselves as moral beings that want to do the right thing (internalized moral standards & rules).
Three principals limit the distribution of punishment: 2.1. Culpability- to safeguard conduct that is without fault from condemnation. 2.2. Legality- to give fair warning of the nature of the conduct declared to constitute an offense. 3) Proportionality- to differentiate on reasonable grounds between serious and minor offenses.
III. Sentencing
Indeterminate Sentencing: a. General: Focus on D; how much jail time a particular D needed is based on the biological and social reasons for why he is a criminal. b. Tailored to rehabilitation (and faded with demise of) c. Other reasons why not used now: c.a. Sentencing disparities violate equal justice concept c.b. Public outrage over short sentences c.c. Shift of focus to victim’s rather than criminal’s rights c.d. Bias in sentencing d. Under indeterminate sentencing congress specified max prison term/fine and min was theoretically probation
Determinate sentencing: a. Response to the public demand of harsher, more consistent punishment; b. Replaces traditional, discretionary systems with a form of determinate sentencing where; b.a.Possibilities for release on parole are reduced or eliminated ; and b.b. Range of sentences authorized after conviction is narrowed by; b.i. Statutory categories; or b.ii. Guidelines that a judicial council or administrative agency promulgates.
Federal sentencing guidelines (“Real Offense” sentencing) :
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a. System we now use to determine sentencing, formulated by committee. b. Sentence length determined by crime committed , and modified by following factors: b.a. Offense characteristics (group, leader, major ring, etc.) b.b. (^) Criminal History b.c. Acceptance of Responsibility b.d. Assistance to authorities c. Departure from guidelines is difficult, Judge must explain why and departure is appealable. d. Arguments against: b.e.Fails to address underlying purpose of criminal sanction (rehab, retribution, incapacitation, etc.) b.f. No consideration of offender characteristics (age, skills, mental condition, etc.) b.g. (^) Don’t take into account prison overcrowding b.h. Doesn’t take into account culpability.
IV. Culpability
Material elements of a crime (found in statutes and judicial interpretation): a. Conduct (actus reus) b. Culpability (mens rea) c. Attendant Circumstances (details to be proved) d. Result (i.e. no homicide if no death) Technical elements of the crime (authority, policy) a. Statute of Limitations b. Jurisdiction (venue) c. (^) Lack of Justification/Excuse
A. Actus Reus
1.) Definition: MPC §2.01 requirement that D must have committed a voluntary act, or
sometimes an omission to act which he is physically capable, possession may be an act
1.) No Actus Reus where a) Statement of Intent (words are not enough) b) Mere thoughts c) Cannot be punished based on status or condition (no crime for being a drug addict) but can be convicted of an act stemming from condition
(public drunkenness)
A. The following are not voluntary acts a) Reflex or convulsion
- Ex/ the doctor hits you on the knee, not a voluntary act
- Ex/ epilepsy attack, not a voluntary act
b) U nconsciousness or Sleep
- Ex/ to not file a tax return
c) There are 4 situations where a legal duty to act exists
- Special relationship a. Spouse, parent/child ONLY b. More of a moral obligation to help c. Ex/ (193) D knows her husband is sexually/physically abusing child but takes no action to stop it. She can be convicted, she has a duty to protect arising from her special parental relationship
- Underaking a) where D undertakes to give assistance voluntarily may have duty if:
- Leaves V worse off than before
- Dissuades other potential rescuers from helping, in reliance that D is already doing so
- Ex/ someone hit by car, they are bleeding, put them into your car, you get distracted and don’t take them to the hospital right away, they bleed to death. You may be convicted b/c a good Samaritan could have saved them.
- Contractual obligation a) Even when contract not b/t D and V (lifeguard, babysitter) b) Jones v. US (190) D hired by infant’s mother to feed and care for the baby will be held liable for infant’s death by malnutrition
- Danger caused by D a) Liability more likely when caused by D’s negligence or intentional act b) walking by the pool and startle someone they fall in and start drowning, even though you didn’t push them you are responsible
d) Knowledge required for conviction:
- Ignorance of facts is a defense to omission, must prove D was aware of facts that gave rise to a duty (i.e. that he set a fire)
- Strict Liability imposed in some situations (i.e. statutory rape)
- Ignorance of Law usually not an excuse, except where duty is so unusual that a person couldn’t be expected to know of it - Lambert v. California where D failed to register as a felon
e) Degree of risk and effort required have a bearing on how far D’s liability for omission will go.
Elements of an Offense MPC §1.13(9)
- Conduct
- Attendant Circumstances
- all the stuff they have to prove that doesn’t fit into any other category
- Result
- death is the result of murder
- Defense
- Excuse or justification
- Negate a defense Ex/ prove the d is not insane
- Statute of Limitations
- Most crimes it is 5 years
- Jurisdiction and Venue
Non- Material Elements – 5 and 6 Material Elements – all others
- mens rea attaches
- can be different mens rea for each element 2.02(3) If nothing in the statute about mens rea, gov. must prove recklessness We don’t think negligence is criminal, min. level is recklessness 2.02(4) When law defines offense and prescribes the mens rea, w/out distinguishing b/t elements, that mens rea shall apply to all elements unless it is plainly contrary 2.02(5) If you have purpose, you have knowledge, recklessness, and negligence
B. Mens Rea
Defined: requirement that there must be a “ culpable state of mind ”.
Mens Rea may not be the same for each material element of the offense, look to statute to find what level of mens rea is necessary for each element.
MPC §2.02 sets out 4 distinct states of mind that may give rise to culpability, depending on how the crime is defined.
SEQ CHAPTER \h \r 1 Type of Objective Element Result Circumstance Conduct Purposely “it is his conscious object ... to cause such a result”
“he is aware of such circumstances or hopes that they exist”
“it is his conscious object to engage in conduct of that nature”
Knowingly “he is aware that it is practically
“he is aware ...that such
“he is aware his conduct is of that
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1.b. Intentionally: sometimes used in pre-MPC statutes, often includes not only a conscious desire but also an awareness that the conduct or result is certain to follow.
1.c. Conditional intent: (i.e. D only intended to commit act upon a certain condition). MPC 2.02(6) provides, existence of a condition is irrelevant unless condition negates the harm or evil sought to be prevented by the law.
- Example: Pick up a ring to see if it’s yours, if not you intend to put it back. No robbery because your condition negates the harm sought to be prevented, stealing.
1.d. Motive: in committing a crime is usually irrelevant.
- (^) Good motives usually no defense (i.e. mercy killings to spare relative suffering from illness. But, may be a defense in certain necessity or self defense acts
2. Knowingly (MPC 2.02(2)(b)):
- With respect to the nature of his conduct – he acts knowingly if he is “ aware ” that his conduct is of that nature
- With respect o the attendant circumstances - it is knowingly if he is “ aware ” that the
circumstances exist.
- With respect to the result - D act’s knowingly if he is “ aware” that it is practically certain his conduct will cause a certain result.
1.e. Willfully = Knowingly Willfully: Often used ambiguously, MPC 2.02(8) for a person to act willfully, it is not necessary that he acted “purposely”, sufficient that he acted “knowingly” unless statute says otherwise.
1.f. Subjective Test: MPC (and most courts) impose subjective test for determining D’s knowledge. I.e. test is whether D actually knew, not whether a reasonable person would have known.
MPC 2.02(7)
Willful Blindness = Knowledge Awareness of a high probability = Knowledge
- Willful blindness (i.e. has a suspicion but purposely refrains from having actual knowledge) will be held to be knowledge.
- US v. Jewel (pg 220) D drove car over border with drugs in trunk, but did not have actual knowledge of contents. Held: D’s lack of knowledge was willful blindness.
1.g. Presumption of knowledge may be used to help prove that D acted “knowingly”
1.h. Knowledge of attendant circumstances sometimes required by statute to convict D, modern tendency to interpret “knowingly” as applicable to all material elements of the crime.
1.i. Knowledge of illegality usually required for conviction (if no knowledge, mistake of law)
- Liparota v. US D violates statute that provides “whoever knowingly uses, transfers, acquires, possesses, etc. food stamps in any manner not authorized” is subject to fine or imprisonment. D argues he must be shown to have known his conduct was unauthorized (not just that he was using transferring etc.). Held: for D, no indication that statute intended otherwise and if D held guilty would criminalize seemingly innocent conduct (i.e. if he “possessed” them because they were mistakenly sent to him).
- Recklessly (MPC 2.02(2)(c)):
Consciously disregards a substantial and unjustifiable risk ,
- Involves a gross deviation from standard of conduct that a law-abiding person would observe in the actor’s position.
1.j. Must be aware of risk (subjective standard)- MPC
- The D was in fact aware
1.k. But , many courts and statutes ( CL ) use an objective standard; D can be “reckless” if he behaves extremely unreasonably, even where he is unaware of the risk.
- Commonwealth v. Welansky D’s nightclub sets on fire and several patrons are killed because several emergency exits were locked at the time. Held: D is convicted of manslaughter, he is found to have been reckless regardless of whether he knew he was creating a danger by locking the exits.
1.l. To determine whether risk was “substantial and unjustifiable” all circumstances known to D must be considered. (i.e. motive may be considered; if D is driving fast to get someone to the hospital as opposed to getting to the movies, may not be reckless).
1.m. Maliciously: also a pre-MPC word always includes intentional (P/K) conduct and usually includes reckless conduct (disregard of known high probability of risk) as well.
- Regina v. Cunningham (pg 204) Where D steals gas meter, causing gas to seep through walls and harm V, a woman sleeping next door. Statute require D to have acted “maliciously” Held: To establish
a. Many statutes are not clear on mens rea, require only a general mental state so D’s mistake will not negate the broad culpable intent. I.e. rape requires only intent to have intercourse.
b. (^) Moral wrong: if under facts as D believed them to be his act would have been criminal or immoral, then mens rea is met.
- Regina v. Prince (pg 226) D took a girl under 16 out of father’s possession thinking she was 18. Held; D is guilty; even if she had been 18 it would have been morally wrong. (Had he mistakenly thought that her father consented, this would have been a defense).
c. An honest and unreasonable mistake can be a defense (negates recklessness if the statute calls for knowledge)
- ex/ CC, didn’t change address
Note: Real and reasonable belief negates negligence Real and unreasonable belief negates reckless
- Mistake of Law
- 2.02 (9) S/L for criminal law, no mistake defense May be a defense for some other law (not criminal) - morality may not be that different, but would open the flood gates to every criminal, in non-criminal it doesn’t effect that many people
Mistake of law – is a defense Mistake of criminal law – never a defense unless says so in statute
Regina v. Smith Renting and you rip something off the wall, you are charged with a criminal offense, but is was a mistake of law (of property law)
Cheek v. US (pg 263) Tax laws considered criminal, He is asking for a mistake of criminal law defense 2.02 (9) SC says Cheek gets defense Willful – SC says violating a statute means you are aware and intentionally violated What level does the gov. have to prove? Aware that he has to pay the tax. Knowledge
a. Modern view : MPC 2.04 (1) provides that “ignorance or mistake as to a matter of fact or law is a defense if; (a) it negates the mens rea required to establish a material element of the offense; or (b) law provides that the state of mind established by such ignorance or mistake constitutes a defense. Effects of :
a.a. If intent or knowledge is required then an unreasonable mistake negating it will block the conviction under MPC;
a.b. Statutory Rape : a reasonable belief as to the age might be a defense in some cases ( People v. Hernandez ) but an unreasonable belief would not be. a.c. MPC 213.6(1) provides that mistake of age is a defense if the critical age is older than 10; but not a defense where below 10. a.d. MPC 2.04(2) provides that mistake is not a defense if D would have been guilty of a lesser crime had it been as he thought. But if only a moral wrong then defense allowed.
b. Mistakes involving questions of law may be a defense if they negate the required mental state.
c. 2.04 (3) are exceptions to 2.02 (9) (a) Statute not known to the actor AND has not been published or reasonably made available (b) If actor reasonably relies on an official statement of the law later to be found erroneous or invalid
- It is a statute or other enactment (later found to be unconstitutional)
- A judicial opinion decision or judgment
- An administrative order or grant of permission;
- An official interpretation of the public officer or body charged by law with responsibility for the interpretation
Lambert v. California All convicted persons in LA must register w/in 5 days, she is convicted. She claims ignorance of the law, typically not an excuse Which exception does she fall into? None really -She was being prosecuted for the person she (felon) is not anything she did -We don’t want the police to have a ready list of suspects, they should investigate on their own, We typically don’t treat criminal law like this; we usually don’t have to give notice Exception : sex offenders
Ex Post Facto – cannot enforce law “after the fact” (after it is published)
Bill of Attainer – a special law for a particular person, also illegal
C. MISTAKE OF LAW…WHEN NOT A DEFENSE?
- under CL and MPC, mistake of law is not an excuse [MPC §2.02(9)]
- why not a defense: 2.a.policy: do not want to encourage ignorance of the law 2.b. floodgates, every criminal could use a defense of misinterpretation
- Exception: MPC §2.04 (3)—MIL is a defense if: 2.c.Statute/enactment not published or made known to actor prior to alleged conduct 2.d. If person acts in reasonable reliance upon an official statement of the law, afterward determined to be invalid or erroneous contained in (i)
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c. Courts are not likely to impose SL where a statute codifies the common law.
d. Less likely to find SL where statute is complex, easy to violate innocently, and/or imposes a stiff penalty. e. Defense: prove that actus reus was involuntary
f. MPC 2.05 provides that where SL is imposed to any material element of an offense, it can only be a violation (minor offense punished only by fine or forfeiture). Presumption is against SL.
g. Public welfare crimes (malum prohibitum) are held to SL. ex/ illegal sale of liquor, sale of impure foods & drugs, misbranded items h. Statutory rape (age element) is held to SL. i. (^) Non-material elements (jurisdiction etc.) are held to SL. j. Regulatory measure social betterment rather than punishment k. Many drug statutes (packaging, distributing, etc.)
C. MPC APPROACH:
- §2.02 (1): generally declines notion of SL b/c requires mens rea for each material element
- §2.05: recognizes that “absolute liability” for violations that cannot result in imprisonment/probation, but may result in fines. D. CASES:
- U.S. v. Dotterweich, 1943: president of drug company convicted of shipping misbranded products (labels). Although no evidence that he knew, or should of have known, he was held liable b/c of SL. (PWO offense)
- U.S. v. Balint, 1922: narcotic act did not require that the prosecution to prove that d knew he was selling a prohibited drug. (PWO offense)
- Morissette v. US, 1952: d charged w/ stealing spent bomb casings on gov’t property. He claimed he did not know they were gov’t property. Gov’t claimed that statute did not state that D must know he was taking the property of another. However, determined, omission from a statute of any mentionof intent does not make the crime SL. → for CL offense (larceny) presumption is against SL.
- Staples v. U.S., 1994: d charged with violation of national firearms act, possession of
automatic weapon. D claims did not know of mechanical error. Statute absent MR. Held: not a SL statute b/c of harsh penalty and no clear legislative intent (history of right to bear arms) →one must have knowledge of the characteristics that render object subject to regulation
- State v. Guminga, MN, 1986: vicarious liability, statute imposed liability on owner even though not directly involved in selling to minor. SC held that personal intrusion on liberty is NOT justified by the public interest protected.
→employers should not be held criminally liable for the crimes of their employees—one cannot be liable for a crime if no MR.
- Vicarious Liability: Person can be guilty without actually having acted. Strict liability for the act of another.
a. D must have had control over the offender. (Or VL is prob. unconstitutional)
b. Not likely to be held VL if D has been or could be sentenced to imprisonment (courts split as to whether violates due process) State v. Guminga (pg 244) held that it’s a violation of due process.
- Imposes crim liability on employer, should have a right to due process - Cannot be convicted of a crime punishable by imprisonment for an act he did not commit, have knowledge of, or give consent to
c. If statute requires a culpable mental state of person committing crime then normally no VL.
V. Legality
Must have notice ; or fair warning of what the crime is. a. Keller v. Superior Court (pg ) D is charged with murder of an unborn fetus. Held: not guilty because legislative intent was not to include fetus, and CL so far has not included, so to do so would violate due process.
Constructive notice is sufficient.
Prior Notice is required; if punishment changes after the crime is committed you can’t be held to it.
Adequate notice is required, can’t be unconstitutionally vague, i.e. gives too much police power/discrimination.
- Shaw v. Director of Public Prosecutions (pg ) D is convicted of “conspiracy to corrupt public morals” for publishing a magazine offering prostitutes. Held: Law is unconstitutionally vague: 1.a.It is an ex post facto law made by court 1.b. Too vague to be enforced, doesn’t put D on notice of what acts will be held illegal. 1.c.Can’t predict what a jury will decide is corruption of public morals.
VI. Rape
(Sexual Intercourse) (by force or threat of force) (against the will and without consent)
- Rape is only crime where you question the victim’s mens rea, not the D’s
(1 and 2 always required)
3. Force / Threat of force (confirm lack of consent)
a. Threat of force - serious bodily harm or death to the victim or imminent threat of serious bodily harm or death to a 3rd^ party Forcible compulsion - Physical force or violence
b. Majority:
- Force is required; something additional beyond penetration, usually “forcible compulsion”
- Only threats of physical harm are sufficient Not sufficient to use your power, Ex/ destitute widow
- Threat can be imminent harm to another, kidnapping
- Threat to the victim doesn’t have to be imminent
c. Minority - Even in the absence of force, nonconsensual intercourse Penn : Threat can be non-physical (intellectual, moral, psychological, emotional (pg. 336 Commonwealth v. Rhodes) NJ: and says penetration is enough (no additional force required) (pg 338 MTS case) FL: 2 nd^ degree says penetration is enough but may need force for 1 st^ degree Mass : “force”, against will = any resistance, including verbal resistance Usually verbal resistance is not sufficient
d. MPC : same as majority but…
- Threat has to be imminent whether to victim or to 3 rd^ party, (slightly more strict)
Used to look at the victim (consent), now moving at looking at attacker (force)
4. Physical Resistance -To determine if there was force, ask “Was there resistance ?” - Used to be “resistance to the utmost”
- Now: reasonable resistance -Resistance is an element of rape even though it is not explicitly stated in the statute
- Even if not stated, you read it in
a. Majority: says it is required (State v. Rusk: 323, State v. Alston: 332)
- “reasonable resistance” all reasonable physical resistance available to her under the circumstances
- Reasonable fear can substitute for resistance
- Fear must be reasonably grounded
- Past experiences : not enough (State v. Alston 332)
b. Minority : any proof of resistance will be used as evidence of force, resistance, non consent
c. MPC: takes minority view
5. Mens Rea - Of the attacker - Only mens rea as to the consent, you must still prove the other elements
a. Majority: negligence, held to a reasonable person standard
- Mistake of fact is a defense “I didn’t know she wasn’t consenting”
- If it is honest and reasonable (b/c negligent)
- Mass : Negligence
b. Minority / MPC: not mentioned so reckless
- Reckless to the element of consent by the victim
- He should have known they were not consenting
- Mistake of fact is a defense If it is honest even if it is unreasonable (b/c reckless)
c. Strict Liability : no mens rea Mass. (Commonwealth v. Ascolillo, 358) and Penn. (Commonwealth v. Fisher)
- There is no mistake defense
2.05 under the MPC impose reckless
- if they don’t state mens rea, fall back on 2.
- can have strict liability/neg. will call it a violation
- they will permit no mens rea crimes, no imprisonment, get a fine instead, call it a violation
VI. Homicide
Any unlawful taking of a human life by another
A. Murder – “Malice Aforethought”
Where life ends , can’t murder someone that’s already dead.
Prosecution must prove following 4 elements of murder;
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