Criminal Law
Professor Friedland – Spring 2011
ACT + RESULT + MENTAL STATE = CRIME – DEFENSES
FUNNEL: Course Area à Subject Area à Rule, Application à Exception, Application
CRIMINAL LAW: PUBLIC LAW COURSE
Essay Problem Steps:
1) Question Presented
2) Area(s)
3) Rule
4) Application of rule to facts (Here, ___________ because ____________)
5) Exception
6) Application of exception (Here, ___________ because ____________)
*Exam tip – compare crimes by comparing mental states, results & circumstances
*On exam, he will give us a case that we read but hide it in changing a few facts
*When dealing w/ attempts, don’t talk about the elements of the crime as they are replaced w/ intent & overt act
*Put facts & conclusion in the same sentence
*Be specific – don’t just say victim wasn’t there
*For close ? put A will argue . . . B will argue. . . The better argument is. . . b/c of Facts.
Argument techniques
· Precedent
· Case law
· Statute
Policy Arguments
· Moral
· Utility (deterrence; gloom & doom)
· Competency (whose job?)
· Administrability (slippery slope)
1. Crime Creation
A. What is a crime? Set the minimum standard of behavior
i. Crime v. Tort – tort is private harms between 2 parties, whereas crimes are about protecting the public & the real victim is the public
ii. Actions below minimal standards of behavior – morally blameworthy
B. Legislature Creates (Principle of Legality) –
i. Legislature makes criminal Laws
ii. General & predictive (provide notice)
iii. Forward-looking
C. Limits
i. Due Process – Notice & void for vagueness (can’t be so vague that reasonable people must guess as to the meaning)
ii. Ex Post Facto – no backward looking crimes, only forward-looking
iii. Separation of Powers
1. Legislative – Makes the laws
2. Judicial – Interprets the laws
a. Protocols
i. Text
ii. Intent
iii. Policy
b. Modes of Interpretation
i. Textualism (Scalia) – look at text and not intent
ii. Tex & Intent (Bryer)– look at text & intent
iii. Policy (Dynamic)
3. Executive – Enforces the laws
iv. 8th Amendment – Cruel & Unusual Punishment
v. Bills of Attainder – legal system can’t single out a group of people
D. Criminal Procedure
i. Prosecutorial Discretion in Charging
1. Grand Jury – group of jurors who decide on probable cause based on police reports (*only capital crimes have to go before grand jury)
2. In formations – prosecutors file charges (Most common way)
ii. First Appearance/ Arraignment – def is told he can get counsel/ first opportunity to go to court to say something
1. Not guilty
2. Guilty
3. No lo contendore – close to a guilty plea but doesn’t count as admission of guil
re to pay taxes)
2. Contract (i.e. babysitting, lifeguard)
3. Relationship – one recognized by law (generally spouses and parent/child)
4. Assumption of the care/risk by voluntarily seclusion and agree to act & failure to assist (i.e. Jones agreed to help w/ children)
5. Peril created by the actor (i.e. Kibbe – by driving away, they had a duty to act)
*Pulling the plug – not considered an act but rather stopping treatment (act), but pulling plug is an omission and doesn’t fall into 5 exceptions
v. Cases
1. Robinson v. California (p. 170 – CA statute that it was a crime to be addicted to the use of narcotics) – RULE: An illness can’t be a crime
2. Powell (p. 172 – man arrested in violation of TX statute that being in public while intoxicated was a crime) – RULE: You can’t prosecute a status, but if there is a voluntary act, that can be prosecuted
3. Homelessness – Not Criminal argument: Pottenger v. Miami (as long as the homeless . . . do not have a single place where they can lawfully be, an ordinance against them is unconstitutional in that it is cruel & unusual punishment); Criminal argument – Joyce v. San Francisco (homelessness isn’t a status but rather a choice)
