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Criminal Law
Charleston School of Law
Shealy, Miller W.

What is a Crime?
It’s conduct, which if duly shown to have taken place, will incur a formal and solemn pronouncement of the moral condemnation of the community.
What distinguishes of a crime from civil sanction, and all that distinguishes it, it is ventured, is the judgment of community condemnation, which accompanies and justifies its imposition (not just what leg says is a crime)
Purposes of Crim Law:
[1] Punishment—[2] Deterrence—[3] Rehabilitation—[4] Safety
Theories of Punishment [ON THE EXAM] D.R.I.E.R.
Deterrence [utilitarian] others wont commit crime when they see D punished and D wont commit a future crime bc he was punished before.
Det the D’s mental state is important bc it helps decide how much punishment needed 4 deterrence.
Utilitarian Theory: (primarily justified by preventing future harms)
Rehabilitation: society obligation to punish to make D better citizen tomorrow.
Individs capable of changing and contributing positively (the essence of this theory is to reform the individual).
Isolation [aka incapacitation] keep D away from law abiding citizens.
Focus is not on changing D’s behavior, but protection of others
Education: punishing D educates the rest of society on: what rules society deems most important and sacred, the law is & procedure, & how it values individuals and groups.
Retribution Theories: [not utilitarian bc looks at past rather than future] indiv gets what he deserves; irrelevant that death penalty might not deter the D or others from future crime; idea is that a wrong has been done & must be punished (debt to society for wrongful act) (breaks K to remain civil=unjustly enriched=repay what took)
Communicative Retributivism: (variant of the retribution theory) idea that right-deprivations help to define the fundamental equal worth of all human beings / when one denies another his right, they’re treating other person as worth less / society feels indignant and wants to send message that society values the victim as an equal to all others.
Shared Responsibility: merits mitigating D’s punishment when its too extreme and doesn’t send message of equal worth, but degrades offender as worth less than rest of society.
When using retribution theories, what D deserves depends on combo of the act’s wrongfulness, deg harm caused, & mental state at crime.
Determining Appropriate Sentence
Must be reasonable
Sentence reas if, at the time of sentencing, appears necessary “to accomplish the primary obj of protecting society and achieve any or all of the related goals of deterrence, rehabilitation, or retribution applicable to the given case.”
Courts conduct independent review of the record w regard 3 things:
1.    Nature of the Offense: ex. murder of mom w 6 kids bc of her distress from the breakup w her husband. Court said the circumstances were so egregious that a determinative life sentence was necessary.
2.    Character of the Offender: e.g. good student, good grades, divorce, nurse, dependable, family man?
3.    Protection of Public Interest: protection of society. All other factors are subservient to that end.
Sentencing Under the Federal Guidelines
Fed govt and most states adopted sentencing guidelines to create a measure of uniformity in the decision regarding the appropriate sentence.
Legislatures sought control over sentencing by adopting statutes req min sentences and authorizing adoption of sentencing guidelines that limit court discretion (take power from judge and increase power of prosecutors).
Criminal Statutes
“Principle of Legality”
Def: sets forth limitations on formation, creation, interpretation of crim law
Reqs: advance notice & fair warning of what is criminal
Retroactive crime creation not allowed
Constitutional Limitations:
No Ex Post Facto Laws (laws the look backward or are retrospective): laws must be prospective in application only.
No Bills of Attainder: cant punish specific indivs/group members without trial
Due Process:
Incorporation Doctrine: most of bill of rights as limits on states
Fundamental Fairness: laws must be fundamentally fair
Burden of Proof: govt prove all crime elements “beyond reas doubt”
Void for Vagueness: too vague on its face if it does not put ppl of ordinary intelligence on notice of what conduct prohibited (too vague if reas ppl must guess meaning & application)
Policy: [1] allow ppl to steer clear of unlawful acts, [2] prevent arbitrary enforcement of laws by police, judge, jury, [3] avoid limiting freedom of speech and expression.
Cruel & Unusual Punishment: no disproportionate punishment for crime
Interpreting Statutes:
Narrowing Construction: law excessively vague on its face can be interpreted narrowly by courts, legislatures, etc to create “tolerable vagueness”
Look for legislators intent (evidence of change from other similar crimes?).
Judicial role to ascertain leg intent so as to effectuate purpose of the law.
Look at words of statute first (if clear & unambiguous, plain meaning governs)
When leg has been judicially construed, and another statute comes along w similar or identical lang, usual presumption that leg intended same construction unless contrary intent clearly appears.
Also, look at past CL lang for the crime.
Rule of Lenity: if statute unclear, and one interpretation favors the govt and other favors D, then judiciary favors D
Elements of a Crime
Basics: “A.R.M.—C.D.”
Act (actus reus) + Result + Mental State (mens rea) = Crime – Defenses
All crimes req an act and most req a concurrent mental state.
Many crimes also req a result (issue is whether D in-fact & prox caused the result to occur).
Actus Reus:
Def: AR composed of: (1) a voluntary act (2) that causes (3) social harm.
Act: bodily movement whether voluntary or involuntary (includes all conduct types—physical movements to words inciting other to act).
There can be no crime in absence of conduct
Act must be voluntary (mind-body connection—look at circumstantial evidence) (involuntary would be reflexes, convulsions, unconsciousness, sleep, hypnosis, any conduct not a product of effort/determination of the actor either conscious or habitual)
Not blameworthiness: blame or culpability depends on mental state
some cts hold D resp if involuntary conduct occurs during course of voluntary culpable conduct.
voluntary act rule does not apply to offenses that constitute “violations” (offenses w max. penalties of fines/civil penalty) unless ct det its consistent w effective enforcement of that law.
Unless legal duty to act, not subject to crim penalties
There are 5 situations where person has legal duty to act: (SCRAP) [1] Statutory, [2] Contractual, [3] Relationship, [4] Assumption of voluntary care and seclusion of injured person, [5] Peril to another cause by the actor.
Statute: must also have mens rea
Contract: voluntary agreement
Relationship: depends on status of the ppl [wife?] Assumption & Seclusion: voluntary assume care and seclude person from assistance by others, as long as abandonment would make person worse
Peril: wrongfully creates another’s peril [prox causation- liable for reas forsee harm from act].
Requirements for liability: [1] capacity to assist; [2] no subst danger to assisting person.
·         Utilitarian: a person cannot be deterred if he acts involuntarily
·         Retributive: person does not deserve punishment unless he chooses to put his bad thoughts into action.
·         Reasons of pragmatism & principle justify non-criminalization of mental thoughts (justifications ß)
o    Pragmatism: we often have difficult

element of an offense when:
                                         i.    if the element involves the nature of his conduct or the attendant circumstances, he is aware that his conduct is of that nature or that such circumstances exist; and
                                        ii.    if the element involves a result of his conduct, he is aware that it is practically certain that his conduct will cause such a result.
c.    Recklessly: person acts recklessly w respect to a material element of an offense when he consciously disregards a subst and unjustifiable risk that the material element exists or will result from his conduct. The risk must be of such nature and degree that, considering the nature and purpose of his conduct and the circumstances known to him, its disregard involves gross deviation from the std of conduct that a law-abiding person would observe in the actor’s situation.
d.    Negligently: person acts negligently w respect to a material element of an offense when he should be aware of a subst and unjustifiable risk that the material element exists or will result from his conduct. The risk must be of such nature and degree that the actor’s failure to perceive it, considering the nature and purpose of his conduct and the circumstances known to him, involves a gross deviation from the std of care that a reas person would observe in the actor’s situation.
3)   Culpability Required Unless Otherwise Provided: when culpability req to est a material element of an offense is not express, such element is met is person acted purposefully, knowingly, or recklessly.
4)   Prescribed Culpability Req Applies to All Material Elements: when law requires specific type of culpability for a crim, but does not distinguish the culpability for the crime’s req element, the culpability defined generally will apply to all material elements of the offense, unless contrary purpose plainly appears.
5)   Substitutes for Negligence, Recklessness, and Knowledge: when the law says negligence is sufficient for one of the crime’s elements, such element is also satisfied if the person acts purposefully, knowingly, or recklessly. When recklessness is required for an element, such element is also est if a person acts purposefully or knowingly. When acting knowingly is req to est an element, such element is also est if a person acts purposefully.
6)   Req of Purpose Satisfied if Purpose is Conditional: when a particular purpose is an element of a crime, the elements is est although such purpose is conditional, unless the condition negatives the harm sought to be prevented by the law defining the offense.
Ex. (Holloway case) intent req is satisfied if, at the moment the D demanded or took control over the vehicle, the D possessed the intent to seriously harm or kill the driver if necessary to steal the car.
7)   Req of Knowledge Satisfied by Knowledge of High Probability: when knowledge of the existence of a particular fact is an element of a crime, such knowledge is est if a person is aware of a high probability of its existence, unless he actually believes that it does not exist.