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Criminal Law
Drexel University School of Law
Kalhan, Anil

Professor Kalhan

Drexel University School of Law

Criminal Law: Fall 2014

I. Modern Sources of Criminal Law

Constitutional Principles Governing the Relationship Between Legislatures & Courts:

1. Principle of Legality

· “Nulla poena sine lege”àNo crime without lawàno punishment without law

2. Void for Vagueness

· Vague statutes are unconstitutional.

· Prevents person of ordinary intelligence from having the reasonable opportunity to know what is prohibited.

· May trap innocent people by not providing fair warning.

· Enables greater possibility of discriminatory and selective enforcement for government officials.

3. Rule of Lenity in Statutory Interpretation

· Criminal statutes must be strictly construed.

· Where all else is equal, adopt the interpretation that favors the accused over the stateàwhen statutory meaning remains unclear after reasonable efforts to determine meaning, courts should interpret ambiguous term in favor of Dàprevents courts from enlarging scope of statute.

· Ex post facto: cannot criminalize or punish conduct “after the fact.”

A) Approaches to Statutory Interpretation

1. Statutory Text: Plain MeaningàWhen the language is clear and unambiguous, courts just give

statute its plain and definite meaningàOtherwise, resort to intent.

2. Statutory Purpose: Legislative IntentàLegislature’s intent controls the interpretation of the


· Test:

1) The court must determine whether the sentencing judge imposed the conditions for

permissible purposes

2) Then it must determine whether the condition reasonably relates to the purposes

B) Resolving Statutory Ambiguity

1. Constitutional Avoidance: Where a statute is susceptible to two interpretations, avoid the unconstitutional one and adopt the constitutional one

2. Rule of Lenity


§ City of Chicago v. Morales

§ Muscarello v. United States

Federal Crime

· Jurisdictional Element: the portion of the crime definition that establishes the federal gov’s power to prosecute it

· Enforced by federal agents and tried in federal courts

· Much smaller than state and local systems

· Federal crime arises from constitution

ü Congress’s authority to regulate interstate commerce

ü Differing approach to mens rea than MPC and common law


§ United States v. Jimenez-Torres

International Crime

§ Transnational crimes: part of any nation’s domestic criminal law that regulate actions/events transcending national borders

§ International criminal law: wrongs criminalized by international community regardless if they are criminalized by other states’ domestic laws; ex) crimes against humanity, genocide, war crimes, aggression

§ International treaties: multiple states may criminalize certain conduct through treaty because it can only be attacked through international cooperation

· Prosecuted under states’ domestic laws; ex) air piracy, hijacking, counterfeiting, terrorism, human and drug trafficking

II. Actus Reus

Actus Reus: refers to the physical aspect of the criminal activity that includes:

1. Voluntary Act

2. Causation

3. Social harm.

v A. Voluntary Act

Common Law:

-D not guilty unless his conduct actually included some “act”

-Defines “act” to mean some bodily movement, whether voluntary or involuntary

-D must perform the physical act for each element of crime that has AR component


-§2.01: person is not guilty of an act or offense unless his liability is based on conduct which includes a voluntary act or the omission to perform an act of which he is physically capable

-Distinguishes between “voluntary” and “involuntary”

-Involuntary acts: reflexes or convulsions, movements while sleeping or unconscious, or any action not otherwise a product of the actor’s determination.

-Possession may be treated as an “act”, if the possessor (1) knowingly procured or received the thing possessed or was (2) aware of his control thereof for (3) a sufficient period to have been able to terminate his possession

Ø Voluntary Act:

· Requires mental component

· Strong judicial tendency to interpret statutory language to involve voluntary act (term “voluntary” rarely explicit in statute, but presumed)

· Voluntary act can be deterred as opposed to involuntary act

Ø Burden of Proof:

§ Although a defendant may raise as a defense that his conduct was not voluntary, the voluntariness of an act proscribed by criminal law is in fact an element of the crime, and as such, the prosecution bears the burden of proving such fact.

§ The prosecution does not need to show, however, that every act was voluntary in order to establish culpability. It is sufficient that the defendant’s conduct, which is the actual and proximate cause of the social harm – included a voluntary act.


§ Martin v. Stateà(police dragged D onto the highway while he was drunk; involuntary)

§ Robinson v. Californiaà(cannot criminalize drug addiction)

§ Powell v. Texasà(punished for act of public drunkenness, not chronic alcoholism)

v B. Omissions

Common Law

-No liability for omission


-Elements of an Omission crime:

(1) Voluntary Act (the “omission” as act)

(2) Attendant Circumstance

(3) Causation

(4) Mens Rea

(5) *DUTY

(6) Social Harm

Ø Failure to act constitutes a breach of legal duty and creates criminal liability:

1. Statutory imposed duty

2. Assumption of contractual duty

3. Special status/ relationship to another

4. Voluntary assumption of care of another; so secluded the helpless person as to prevent others from rendering aid

Ø Bystander/Urban Indifference

ü People are less likely to come to one’s aid if they believe others hear the cry for help and may aid instead

ü Kitty Genovese Murder

· What justifies having a law that requires bystanders to intervene?

§ Utilitarian: May deter future crime, if potential future criminals know that everyone surrounding the incident is under a duty to act and intervene.

§ Retributivist: Proscribing a law requiring a duty to report would impose a duty on bystanders, whereby violation of this duty presents the criminal conduct or moral culpability sufficient to extoll punishment.

à Law does not criminalize omissions that may prevent or mitigate serious harm for various reasons:

1. Ambiguity/harder to determine the motives and culpability of omitters

2. Difficult to draw the line as to who and what extent lead to or created the omission

3. Well-meaning bystanders may cause more harm; by legally compelling action it may cause more overall harm than good

4. Freedomàvalue personal autonomy; cautious to pass laws compelling action rather than requiring not to harm

à Retributivist objection: cannot accurately assess moral blameworthiness and culpability without clearly identifiable/known duties

v C. Social Harm

Ø Social Harm: society is wronged when actor invades socially recognized interests and diminishes its value .

§ Result crimes: law punishes person for the resulting harm from the crime; social harm must occur.

§ Conduct crimes: inta

criminalize otherwise innocent behavior

Ø Transferred Intent: intent to cause injury to A but cause it to B accidentally; D is still considered morally culpable as to the harm caused to B because it is the same harm that results

Ø Willful Blindness: “Knowledge” of Attendant Circumstances

· If a person suspects that they might be doing something illegal, but chooses not to find out for sureàState v. Nations

· Considered a deliberate effort to avoid guilty knowledge

· Courts have adopted the approach that a finding of “willful blindness” will satisfy the “knowledge” requirement

Ø Conditional Intent: commission of a crime that is dependent on some other demand (i.e. carjacking)

o Utilitarianism:

· Deterrence: person cannot be deterred from crime if he does not appreciate the punishment for the crime

§ Problem: person commits crime without culpable state of mind may not be deterred from own action, but may serve to deter and make them more careful with their activities to reduce accidental injuries

· Reformationà punishing a person for a crime without any criminal intent is a waste of time because he does not need to be reformed

§ Problem: may require incapacitation or alternative corrective measures to protect society

o Retributivism:

· Principal founded in belief that crimes are public wrongs

· Guilty verdict implies that convicted party wronged community as a whole

§ Society denounce D with criminal convictionà condemns and stigmatizes him as a wrongdoer


§ Regina v. Cunningham

§ People v. Conley

§ Flores-Figueroa v. United States

v B. Strict Liability

*Presumption Against Strict Liability

ü Authorizes conviction of a morally innocent person for violation of an offense even though the crime by definition requires proof of MR

ü Offenses/crimes that do not explicitly by their definition contain MR requirement for each element of the AR

Ø Public Welfare Offenses:

· Inherently wrong/ malium in se

· Courts authorize strict liability in public welfare offenses:

1. PWO is not derived from common law

2. Single violation of an offense can simultaneously harm/injure a great number of people

§ May explain legislative disregard of personal moral guilt in favor of the importance of collective interests

3. The standard imposed by the statute is reasonable

4. The penalty for the violation is relatively minor

5. Conviction rarely damages the reputation of the offender

Ø Non-Public Welfare Offenses:

· Inherently wrong and violators are stigmatized by the conviction (i.e. statutory rape)

· Usually the element of the crime that will not require proof of MR is the attendant circumstance

o Utilitarianism:

1. Absence of MR requirement may deter people who doubt their capacity to safely participate in certain dangerous conduct from doing so

2. People who participate in risky activity will be cautious

3. Inquiry into actor’s MR would exhaust courts dealing with many minor infractions on a daily basis