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Criminal Law
Charleston School of Law
Shealy, Miller W.


A. Principals of Punishment
· Crime – A label for conduct that incurs a “formal and solemn pronouncement of the moral condemnation of the community.”
· Criminal v. Civil – Although criminal law and civil claims may overlap, the criminal law involves governmental action seeking to punish the ∆ for violating a social norm.
· Theories of Punishment – Criminal law, and thus punishment, serves these sometimes competing purposes:
o Deterrence – Individuals will not commit crimes for fear of suffering punishment
o Rehabilitation – Society has an obligation to punish in a way to make better citizens
o Isolation – Isolate wrongdoers from abiding persons
o Education – Punishing wrongdoers educates the rest of society of what rules are important
o Retribution – Looks to the past rather than the future (like Utilitarian Theories above), the goal being to ensure the ∆ gets what he deserves.

B. Criminal Statutes
· Basics of a Criminal Prosecution:
1. The Investigation
2. The Charge – Either (1) indictment (Grand Jury); (2) Information (looks like indictment); (3) Arrest Warrant
3. Pre-Trial Motions – such as: exclusion of evidence, request to dismiss charges
4. Trial – ∆ entitled to a jury trial if he can be incarcerated for more than 6 months; ∆ can waive a jury trial if G agrees
5. Plea Bargain – G and ∆ agree to a plea bargain where ∆ pleads guilty to certain charges for a lower sentence; can occur at any time up until conviction returned
6. Jury Instruction – statement of the law given to the jury
7. Motion for a Judgment of Acquittal – similar to SJ; only a ∆ can seek to have case dismissed for insufficient evidence
8. Double Jeopardy – ∆ may not be put “twice in jeopardy” for the same offense; if found not guilty of a charge, cannot pursue that charge in a second proceeding
9. The Basis for an Appeal – ∆ must demonstrate a legal error in the trial or per-trial procedure, which is usually based on:
· Insufficient evidence
· Improper jury instructions
· Evidentiary challenges
· Constitutional challenge

· Interpreting Criminal Statutes
§ Plain Meaning – In interpreting a statute, one starts with the plain meaning.
§ Legislative Intent/History/Policy – Courts seek to interpret a statute in accordance with the legislative intent and to discern this intent they look at legislative history and policy considerations used when statute passed.
§ Common Law – As criminal law comes from the common law, common law precedent is often used to interpret a statute.
§ Rule of Lenity – When a criminal statute has 2 possible meanings and neither of these interpretations renders the statute unconstitutional, the Rule of Lenity provides for an interpretation that favors the accused.
§ Clarity – The US Constitution requires statutes to be clear (this is a matter of judicial interpretation) and provide sufficient notice of what will be punished.
§ Protections afforded by prohibiting vague statutes: USSC held 3 protections afforded by the vagueness doctrine: (1) to allow people to arrange their conduct so as to steer clear of unlawful acts, (2) to prevent arbitrary and discriminatory enforcement of laws by police officers, judges, and juries, and (3) to avoid limiting the freedom of speech of expression.
§ Federalism – Federal statutes must be premised upon a constitutional power and federalism concerns are raised when the statute encompasses conduct that is traditionally a state concern.
§ Due Process Right to Privacy – Criminal statutes cannot infringe on the constitutional right to privacy & the punishment cannot be “cruel and unusual”
§ Ex Post Facto (laws which look backward or are retroactive) – Under the Ex Post Facto clause, only conduct occurring after the passage of a criminal statute can be punished; laws must be prospective in application only.
§ Bill of Attainder provision, the C requires that statutes provide individuals a right to a trial and conviction prior to the imposition of punishment; bills of attainder, laws that punish specific individuals or members of a group without the benefit of a judicial trial, are prohibited.

· Elements of crimes generally fall into 5 categories: (1) the act (actus reus / “evil-doing hand”); (2) the mental state (mens rea / “evil-meaning mind”); (3) causation; (4) attendant circumstances; and (5) concurrence of the elements.

A. Actus Reus (the wrongful act)
· An actus reus is either a voluntary physical act OR an omission to perform a duty which the law imposes.
§ Act must be voluntary. A reflexive or unconscious movement does not qualify.
§ A duty to act arises in 5 general situations: SCRAP
1. S = Statutory creation of the duty
2. C = Contractual creation of the duty.
3. R = Relationship of a special nature that creates the duty
4. A = Assumption of voluntary care and seclusion of an injured person creates the duty.
5. P = Peril to another, wrongfully caused by the actor, creating a duty.
· “Mere Moral Obligation” – Duty neglected must be a legal duty and not a mere moral obligation
o Creation of Danger – Courts recognize a legal duty to report crimes or dangerous situations when the ∆ is the case of the danger and the failure to report results in a death that was preventable. (UNLESS it would result in an increase of harm to you).
· Possession is an actus reus if the actor knows that he or she has possession.
· The 8th Amendment bars punishing someone for a status, such as being a narcotic addict, but does NOT ban criminalizing an act, such as being drunk in public.

B. Mens rea (mental state) (“what did the ∆ know and when did he know it”)
2 Different Approaches (distinct but related) – the ambiguity in distinguishing between specific and general intent has led to a movement away from the traditional dichotomy intent and toward an alternative analysis of mens rea.

1. Common Law System – Mens rea is discussed as either GENERAL INTENT or SPECIFIC INTENT
· General Intent –Actor intended to perform the physical act (actus reus) condemned in the criminal statute. At common law has many meanings: knowing or reckless or negligently.
· Specific Intent – A specific intent crime requires a mental element above and beyond what is needed for the actus reus – have a desire to bring about a specific result.

2. Model Penal Code (EXAM) – We do NOT speak in terms of general or specific intent; mens rea is delineated in 4 kinds of culpability… DO NOT EVEN USE THE TERM INENT!

(1) Purposely – A person acts purposely when his conscious object is to engage in certain conduct or cause a certain result.

(2) Knowing

have no mens rea) these are COMMON LAW TERMS!

o Specific Intent Crimes – The mens rea in a specific intent crime can be negated by an honest mistake, no matter how unreasonable. (Does NOT have to be reasonable)

o General Intent Crimes – Mens rea in a general intent crime can be negated only by a mistake that is BOTH honest and reasonable. (Has to be reasonable)

o EXAMPLE: Arson is intentionally setting fire to a dwelling house. Arson is a general intent statute because it requires only intent to do the actus reus. If the defendant says, “I thought it was abandoned,” he has made a mistake of fact about the nature of the building. That mistake negates intent (intentionally means purposely or knowingly). If the defendant’s belief is honest but unreasonable, there will be no liability under the MPC, but there will be liability under the common law. If the defendant’s belief was both honest and reasonable, there will be no liability under the MPC or the common law.

§ If instead the defendant says, “I thought it was Bob’s house, not Jan’s,” his mistake does not negate intent. So there will be no relief formistake, as it doesn’t negate a material element.

· Mistake in Law (NOT a defense to a crime) – Occurs when a person is mistaken about the applicable law. This type of mistake does not negate the mens rea (“ignorance of the law is no defense”).

C. Causation (look out for in homicides)
· For crimes that require a specific result, such as death or financial harm, the G must prove beyond a reasonable doubt that the ∆ caused the particular harm as an element of the offense.
· Causation links the actus reus and the result.
· Cause-in-Fact –But for the actions of the ∆, result would not have happened when it happened.
o But-for causation is often uncomplicated, but when complicated, it can be determined with the help of one of the following tests, particularly in difficult cases:
i. Substantial factor test (Simultaneous Causes / Concurrent Sufficient Causes): In the event of concurrent sufficient causes (e.g., when more than one actor inflicts a mortal wound), courts can ask whether the defendant was a “substantial factor” in causing the prohibited harm. If the answer is yes, cause in fact is satisfied.
ii. Acceleration test: In the case of multiple actual causes, if it can be shown that the defendant’s conduct has accelerated or hastened the prohibited result, it will satisfy but-for causation.
· Proximate Cause –Proximate cause is a means to determine whether the ∆, as a matter of fairness, should be held liable for the criminal activity. ∆’s conduct is the proximate cause of the result if the result is a natural and probable consequence of the conduct.