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Criminal Law
Charleston School of Law
Shealy, Miller W.



§ 1.01 Theories of Criminal Punishment

[A] Utilitarianism

[1] Deterrence – The utilitarian theory is essentially one of deterrence – 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.

Utilitarians consider the effect of a form of punishment in terms of both general deterrence and specific (or individual) deterrence. When the goal is general deterrence, punishment is imposed in order to dissuade the community at large to forego criminal conduct in the future. When the goal is specific deterrence, punishment is meant to deter future misconduct by an individual defendant by both preventing him from committing crimes against society during the period of his incarceration (incapacitation), and reinforcing to him the consequences of future crimes (intimidation).

[2] Rehabilitation – Another form of utilitarianism is rehabilitation (or reform). Examples of rehabilitative “punishment” include: psychiatric care, therapy for drug addiction, or academic or vocational training.

[B] Retributivism – Under a retributive theory of penal law, a convicted defendant is punished simply because he deserves it. There is no exterior motive such as deterring others from crime or protecting society – here the goal is to make the defendant suffer in order to pay for his crime. Retributive theory assigns punishment on a proportional basis so that crimes that cause greater harm or are committed with a higher degree of culpability (e.g., intentional versus negligent) receive more severe punishment than lesser criminal activity.

[C] Denunciation (Expressive Theory) – The denunciation theory – which holds that punishment is justified as a means of expressing society’s condemnation of a crime – has both utilitarian and retributive components. Under a utilitarian theory, denunciation is desirable because it educates individuals that the community considers specific conduct improper, channels community anger away from personal vengeance, and serves to maintain social cohesion. Under a retributive theory, denunciation serves to punish the defendant by stigmatizing him.

§ 1.02 Sources of Criminal Law

[A] Common Law – Common law is judge-made law. Even when superceded by statutory law, common law may serve to interpret ambiguous statutory terms.

[B] Criminal Statutes – Today, statutory law is the prevailing source of criminal law and essentially has replaced common law. Although most states have abolished common law crimes, a few have enacted “reception” statutes, expressly recognizing common law offenses when statutory law does not provide a punishment for such offense. In effect, such a statute “receives” the common law offenses in place at the time of the statute’s enactment.

Generally speaking, statutory law classifies a crime as a felony or a misdemeanor, both of which may be subdivided into degrees. A felony is punishable by death or imprisonment in a state or federal prison. The maximum punishment for a misdemeanor is a monetary fine, incarceration in a local jail, or both. Some jurisdictions also have an additional classification of “violation” or “infraction” for which only a monetary fine is authorized.

[C] Model Penal Code – Although the Code – published by the American Law Institute – is not the law in any jurisdiction, it stimulated adoption of revised penal codes in at least thirty-seven states. Although some state legislatures have adopted only small portions of the Model Code as their own, other jurisdictions (including New Jersey, New York, Pennsylvania, and Oregon) have enacted many of its provisions. Courts, on their own, sometimes turn to the Model Code and its supporting commentaries for guidance in interpreting non-Code criminal statutes.

§ 1.03 Constitutional Limitations on Criminal Law

Various provisions of the United States Constitution impose limits on federal and state legislative action. A state legislature is also limited by its own state constitution, which may place greater restrictions on it than does the federal Constitution.

[A] Limits on Federal Action – The “Bill of Rights” restricts the power of the federal government in its relationship to individuals.

[B] Limits on State Action – The Fourteenth Amendment to the United States Constitution imposes limits on state government. The 14th Amendment:

(1) prohibits states from making or enforcing “any law which shall abridge the privileges or immunities of citizens of the United States”

(2) “deprive any person of life, liberty, or property without due process of the law;” or

(3) “deny to any person within its jurisdiction the equal protection of the laws.”

§ 1.04 Legality

[A] Common Law – A person may not be punished unless his conduct was defined as criminal at the time of commission of the offense. This prohibition on retroactive criminal lawmaking constitutes the essence of the principle of legality.

There are three interrelated corollaries to the legality principle:

(1) Criminal statutes should be understandable to reasonable law-abiding persons. A criminal statute must give “sufficient warning to men of common intelligence as to what conduct is unlawful.” A person is denied due process of law if he is convicted and punished for violation of a statute that lacks such clarity.

(2) Criminal statutes should not delegate basic policy matters to police officers, judges, and juries for resolution on an ad hoc and subjective basis.

(3) Judicial interpretation of ambiguous statutes should “be biased in favor of the accused” (the lenity doctrine).

[B] Model Code – The Model Penal Code does not recognize the lenity principle. Section 1.02(3) requires instead that ambiguities be resolved in a manner that furthers the general purposes of the Code and the specific provision at issue.


§ 2.02 Burdens of Proof

The fact-finding process imposes two types of burdens of proof: (1) the burden of production (sometimes called the “burden of going forward (with evidence)”); and (2) the burden of persuasion.

[A] Burden of Production

[1] Prosecution Burden of Production – Prior to trial the prosecution must file a document with the court that indicates the crime or crimes it believes that the defendant has committed. This document provides the accused with notice of the essential elements of the offense(s) charged, and the basic facts that the prosecutor intends to prove at trial to support his allegation that the defendant committed the crime(s). The prosecutor must produce enough evidence that a rational trier-of-fact may fairly determine that the elements of the crime have been proved beyond a reasonable doubt.

If the judge concludes that the prosecutor failed to satisfy the burden of production regarding any element of the offense charged, the defendant is entitled to a directed verdict of acquittal at the conclusion of the prosecutor’s case-in-chief or at the end of the trial. If the prosecutor failed to introduce enough evidence to support a jury finding beyond a reasonable doubt that the defendant committed the crime, there is no reason for it to deliberate on the matter.

[2] Defendant’s Burden of Production – The defendant is sometimes required to provide advance notice to the prosecution of defenses he intends to assert at trial. The amount of evidence required to satisfy the burden of production on affirmative defenses varies by jurisdictions. In some jurisdictions the defendant meets his burden of production (and, thus, is entitled to an instruction to the jury on the defense) if he produces more than a “scintilla of evidence” regarding an affirmative defense; in other jurisdictions the defendant must introduce enough evidence to raise a reasonable doubt on the issue of the defense claimed.

If the defendant fails to meet his burden of production regarding an affirmative defense, the judge will not instruct the jury on the law pertaining to the defense, and the defendant is not entitled to have the issue considered by the jury in its deliberations.

[B] Burden of Persuasion – Once a party satisfies his burden of production pertaining to an issue, that matter is properly before the jury as fact-finder, i.e., it will decide whose factual claims are more persuasive.

[1] Prosecution’s Burden of Persuasion (the Winship doctrine) – Pursuant to the due process clause, a person charged with a crime is presumed innocent and, to enforce this presumption, the Supreme Court held in In re Winship [397 U.S. 358 (1970)] that the prosecution must persuade the fact-finder beyond a reasonable doubt of “every fact necessary to constitute the crime charged.” This rule has come to be known as “the Winship doctrine.”

If the prosecution fails to meet its burden of persuasion, the defendant must be acquitted. Procedurally, the acquittal may occur in either of two ways. First, after the prosecution completes its presentation of evidence or immediately before the case is due to be submitted to the jury, upon motion of the defendant, the trial court must direct a verdict of acquittal if the evidence, viewed in the manner most favorable to the prosecution, can support no reasonable verdict other than acquittal. Alternatively, if the judge believes that reasonable minds can differ and, therefore, permits the case to go to the jury, the jury must acquit if it possesses a reasonable doubt regarding one or more elements of the offense charged.

[2] Defendant’s Burden of Persuasion – Jurisdictions differ in their allocation of the burden of persuasion regarding affirmative defenses. Some states require the prosecution to disprove beyond a reasonable doubt some or all defenses, once the defendant has met his burden of production. In states that allocate to the defendant the burden of persuasion regarding defenses, it is typical to require the defendant to prove the validity of the claimed defense by the less strict preponderance-of-the-evidence standard.

If a defendant presents sufficient evidence to meet his burden of production regarding a defense to the crime charged, the jury must be permitted to evaluate the defense claimed. When the defendant also has the burden of persuasion, a jury should reject the claimed defense if he fails to satisfy the stated burden.

If the prosecution has the burden of disproving a defense, the jury must acquit the defendant if the prosecution fails to persuade the jury beyond a reasonable doubt of the defense’s non-existence.

[3] Determining if a Fact Relates to an Element or an Affirmative Defense – A prosecutor must prove every element of an offense beyond a reasonable doubt. The legislature may allocate to the defendant the burden of persuasion regarding “facts not formally identified as elements of the offense charged.” [McMillan v. Pennsylvania, 477 U.S. 79, 86 (1986)] Thus, generally speaking, a legislature may allocate to the defendant the burden of persuasion regarding facts that relate to an affirmative defense. However, a court interpretation of the statute may be required to determine whether a particular “fact” relates to an element of an offense or to an affirmative defense. [Compare Mullaney v. Wilbur and Patterson v. New York, below.]

In Mullaney v. Wilbur, 421 U.S. 684 (1975), the homicide statute under which the defendant was tried defined “unlawful” killing as “neither justifiable nor excusable.” At trial the defendant presented evidence supporting his claim that he killed the victim “in the heat of passion on sudden provocation.” The trial judge instructed the jury that if the prosecution proved that the defendant killed the victim unlawfully and intentionally, then the killing was murder, but if the defendant persuaded the jury by a preponderance of the evidence that the killing was “in the heat of passion on sudden provocation,” it constituted the lesser offense of manslaughter. The Court found that the instruction violated the Winship doctrine, as it essentially shifted to the defendant the burden of disproving an element of the offense – that the homicide was not “unlawful” as defined in the statute.

In Patterson v. New York, 432 U.S. 197 (1977), the defendant raised an affirmative defense of “extreme emotional disturbance” as provided for in the New York homicide statute. The jury was instructed that the defendant bore the burden of persuasion for such defe

nighttime – contains an elemental attendant circumstance that the crime must occur at night.

[B] Constitutional Limits – Various constitutional provisions limit the extent to which a legislature may proscribe “social harm”. For example, the First Amendment bars a state from criminalizing most forms of speech. Even where some social harm may occur – such as some persons may find a given form of speech offensive – the law deems that the integrity of constitutional rights outweighs the society’s interest in preventing the harm. [See, e.g., Texas v. Johnson, 491 U.S. 397 (1989) (pertaining to defacing the American flag)].

“Privacy” rights, such as reproductive choice and sexual conduct of consenting adults, have also been protected from state attempts to criminalize such conduct. [See, e.g., Roe v. Wade, 410 U.S. 113 (1973); Planned Parenthood of Southeastern Pennsylvania v. Casey, 505 U.S. 833, 836 (1992); Griswold v. Connecticut, 381 U.S. 479 (1965); Lawrence v. Texas, 156 L. Ed. 2d 508 (2003)]


§ 5.01 Common Law Principle and Definition

Simply put, “mens rea” refers to the mental component of a criminal act. However, there is much ambiguity inherent in this term. The doctrine has been defined in two basic ways:

[A] “Culpability” Definition of “Mens Rea” – In the early development of the doctrine, many common law offenses failed to specify any mens rea. Mens rea was defined broadly in terms of moral blameworthiness or culpability. Thus, at common law and in jurisdictions that still define the doctrine broadly, it was and is sufficient to prove that the defendant acted with a general culpable state of mind, without the need to demonstrate a specific state of mind such as “intentionally,” “knowingly,” or “recklessly.”

[B] “Elemental” Definition of “Mens Rea” – Much more prevalent today is a narrow definition of mens rea which refers to the particular mental state set out in the definition of an offense. In this sense, the specific mens rea is an element of the crime. Note that a person can be culpable in that he was morally blameworthy yet lack the requisite elemental mens rea.

§ 5.02 Specific Mens Rea Requirements

[A] “Intentionally” – A person “intentionally” causes the social harm of an offense if: (1) it is his desire (i.e., his conscious object) to cause the social harm; or (2) he acts with knowledge that the social harm is virtually certain to occur as a result of his conduct.

The doctrine of “transferred intent” attributes liability to a defendant who, intending to kill (or injure) one person, accidentally kills (or injures) another person instead. The law “transfers” the defendant’s state of mind regarding the intended victim to the unintended one.

[B] “Knowingly” or “With Knowledge” – Sometimes, knowledge of a material fact – an attendant circumstance – is a required element of an offense. A person has “knowledge” of a material fact if he is aware of the fact or he correctly believes that it exists. Most jurisdictions also permit a finding of knowledge of an attendant circumstance when the defendant is said to be guilty of “wilful blindness” or “deliberate ignorance,” i.e., if the defendant is aware of a high probability of the existence of the fact in question, and he deliberately fails to investigate in order to avoid confirmation of the fact. An instruction in this regard is sometimes called an “ostrich instruction.”

[C] “Wilfully” – “Wilful” has been held in different jurisdictions to be synonymous with other terms, e.g., “intentional,” “an act done with a bad purpose,” “an evil motive,” or “a purpose to disobey the law.”

[D] “Negligence” – Criminal negligence (as opposed to civil negligence) ordinarily requires a showing of a gross deviation from the standard of reasonable care. A person is criminally negligent if he takes a substantial, unjustifiable risk of causing the social harm that constitutes the offense charged.

Three factors come into play when determining whether a reasonable person would have acted as the defendant did:

(1) the gravity of harm that foreseeably would result from the defendant’s conduct;

(2) the probability of such harm occurring; and

(3) the burden to the defendant of desisting from the risky conduct.

[E] “Recklessness” – A finding of recklessness requires proof that the defendant disregarded a substantial and unjustifiable risk of which he was aware.

[F] Distinction Between Negligence and Recklessness – The line between “criminal negligence” and “recklessness” is not drawn on the basis of the extent of the defendant’s deviation from the standard of reasonable care — the deviation is gross in both cases — but rather is founded on the defendant’s state of mind. Criminal negligence involves an objective standard – the defendant, as a reasonable person, should have been aware of the substantial and unjustifiable risk he was taking); recklessness implicates subjective fault, in that the defendant was in fact aware of the substantial and unjustifiable risk he was taking but disregarded the risk.