Steve Friedland, Elon Law–Criminal Law: Spring 2012: Master Criminal Outline
January 20, 2012
-What is a crime?: Act+Result+Mental State=Crime(a result)-(a defense)
-Legislature makes the law; Judges cannot make the law.
-The problem with judges making the law is that it does not set forth a clear and advance definition of the crime.
-Legality: preference for legislature defined crime, and the preference for clear and advance definition of crimes.
HOWEVER? Does preference mean its a requirement? — No.
-The constitution mandates that judges follow the law that the legislature sets forth. THUS: there is a common law basis, AND and constitutional basis.
Case Precedent:
NOTE: WHENEVER THERE IS A CASE, ANSWER THESE QUESTIONS: Who is prosecuting whom, for what, on what basis??
Friedland’s Preferred Case Brief Format
-QP (if it affects the party, include it in the QP)–
-Holding
-Important Facts
-Rules of Law
-Rationale
-Concurrence or Dissent
-Dicta
Example of good QP: Is Mr. Keeler entitled to a writ of prohibition to set aside the previous courts decision that he committed murder under the California statute?
HOWEVER: THIS IS NOT CIVIL PROCEDURE SO THIS ISN”T SUING!!!!! We use words like “prosecuting,” “charging,” “indicting.” DONT USE SUE!
-Charging- Police informally charge you, but the prosecutor formally charges you.
-Information: a formal charge preferred by prosecutors because its “cleaner,” quicker, and easier to do.
-Indictment- grand jury has to be involved b/c their job is to indict the person of the charge on the basis of probable cause. (note: grand juries sit for at least six months)
-Prosecuting-go forward with the matter
-Writ of Prohibition: Asking court to set aside previous decision.
-When evaluating the case/law, review under:
1-Text
2-Intent
-History
-Context=Custom
-Other Stats
-Past
-What the legislature said
Rule of Lenity: We view the facts/law in light most favorable to def in criminal law.
What are Crime Prerequisites?
-Facial Limits (on the face of the law)
-Principle of Legality
-legislature makes criminal law;
-MUST BE general and predictive (provide notice);
-Forward-looking
-Constitution
-Ex Post Facto (no backward looking laws “from this day forward)
-Due Process–void of vagueness
-separation of powers
-e.g. keeler
January 23, 2012
-Due Process=Void for Vagueness. Its a constitutional limitation on criminal law. It’s essentially saying that all cause cannot be excessively vague. For this, we use the reasonable person test because we want this objective standard to be able to be applied to everyone! *Reasonable people must guess as to the meaning of the law.*
-Another argument you can always make in criminal law is that it is Unfair. That is a due process argument.
-Separation of Powers can also be argued.
-Ex Post Facto; likewise.
THESE ^ ARE THE FOUR ^ ARGUMENTS YOU CAN MAKE ABOUT THE CONSTITUTIONALITY OF THE LAW.
-Law should be general so it can apply to everyone; even the one person being charged.
-Some required characteristics of criminal law is that it is:
1-General
-not too general-interpretation permitted-judicial narrowing construction permitted
2-Predictive
3-Legitimate
4-Forward (No ex post facto laws)
Example of an Unfair law: “Murder is the unlawful killing of a human being, to include a fetus, with malice aforethought.”
-Judges can give a narrowing construction of the law; example, if the law looks void for vagueness, the judge can narrowly construction the law to make it applicable.
-A time that laws will be struck down is when they are so vague that the reasonable person has to guess at their meaning.
**The first question when evaluating the law is to ask yourself, “Does it meet the constitutionality?” (HINT: Review the above characteristics).
-What is a crime??–OVERLY SIMPLIFIED ANSWER
reasonably do. (ex. babysitting 4 kieds: one kid playing with stove, one climbing on ledge. you cant be in both place at once; lifeguard has 4 people drowning, he can only save one at a time.)
February 1, 2012
-Murder=unlawful killing of another with malice aforethought
hypo: Dr. takes patient off life support. Is this a murder? Its not an act. its an omission. The act was keeping the man off the generator. the stopping of treatment was an omission.
Possession: two possible elements 1)intentionally exercising dominion and control over a thing OR 2) failing to dispossess after becoming aware of a thing.
-intentional=mental state
-Act or omission?
-Proxy for act?
-Inchoate Crime?
Types-
-joint or sole
-actual or constructive
Hypothetical: Dirty harry and pistol pete co leased an apartment. pete brought his girlfriend laura to the apartment one night. harry smelled marijuana smoke coming from pete’s room, saw a baggie of white powder on the kitchen counter when he went out for a drink of wanter, and a bag of brownish weed in laura’s open pocket book. Is harry guilty of possessing cocaine and MJ?
-The weed in the bedroom=least likely to be liable because the bedroom is pete’s private room (is there a lock on the door, how close are, etc)
-weed in laura’s pocketbook=could go either way, but the defense would be its in her personal pocket book
-The cocaine on the counter is the most likely because its the common area tied to no one in particular. however, he had time to dispossess.
February 6 2012
Mental State and Strict Liability
-Third part of a crime
(Act+Result+Mental State=Crime
