I. Criminalization, Definition and Classification
A. Moral and constitutional limits on the criminal sanction
1. legality
a) language of statutes is subject to interpretation, therefore practice of criminal
law focuses on whether particular behaviors fall within such parameters
b) a statute providing penalties for criminal conduct is unconstitutionally vague if it
fails to give sufficient notice regarding the type of conduct prohibited
(1) overbreadth: language of statute might contradict certain behaviors which are
protected by other constitutional rights, which would make the statute
unconstitutional for being too broad
2. liberty
a) liberty protected by the specific constitutional provisions
(1) a statute that regulates content ofn its face may be employed only where it is
necessary to serve the asserted compelling state interest
b) unenumerated rights
(1) a statute making it a crime for two adult persons of the same sex to engage in
certain consensual intimate sexual conduct violates the Due Process Clause
(a) statute was unconstitutional as applied to homosexuals
3. equality
a) for a DF to be entitled to discovery on a claim that he was singled out for prosecution
on the basis of his race, he must make a threshold showing that the Gov’t. declined
to prosecute similarly situated suspects of other races
4. proportionality
a) 8th Amendment does NOT prohibit a state from sentencing a repeat felon to a prison
term of 25 years to life under the state’s “3 strike” rule
II. Responsibility: In General
A. Mens Rea
1. describes what state of mind is required for an act to rise to criminal in nature
a) general mens rea as any kind of blameworthy/unlawful state of mind
b) specific mens rea as intent, knowledge, willfulness, negligence/recklessness
B. Intent: general, specific, conditional
1. general
a) ILCS:conscious objective or purpose is to accomplish that result OR engage in that
conduct
b) lack of specificity, but some minimal amount of blameworthiness
2. specific
a) intent to commit a specific unlawful act which is a required element for criminal
liability for certain crimes
b) criminal attempt requires that the act be done with the specific intent to commit the
particular crime allegedly attempted
3. conditional
a) conditional state of mind may satisfy intent element – DF may NOT negate a
required element of intent by requiring the victim to comply with a condition
C. Knowledge (scienter)
1. ILCS: when he is consciously aware that his conduct is of such nature or that such
circumstances exist; when he is consciously aware that such result is practically certain
to be caused by his conduct
àmeans awareness of probability; NOT certain knowledge
2. objective test for conviction is what a reasonable person would/should know from the
circumstances
3. subjective test for conviction is that the DF knew from the circumstances
4. where a DF is aware of facts indicating a high probability of illegality but purposely
fails to investigate because he desires to stay ignorant, he has knowledge of the
illegality and positive knowledge is NOT required
à”knowledge” does NOT require absolute certainty
D. Willfulness
1. ILCS: conduct performed knowingly or with knowledge is performed willfully, within
the meaning of a statute using the latter term, unless the statute clearly requires another
meaning
2. meaning depends upon the nature of the crime and the facts involved but generally
means only that a person charged with a duty knows what he is doing (no evil intent
required)
3. unless the text of the statute dictates a different result, merely requires proof of
knowledge of the facts that constitute the offense
a) ignorance of the law is no excuse – knowledge that the conduct is unlawful is all
that is required
E. Negligence and recklessness
1. ILCS: person is negligent, or acts negligently, when he fails to be aware of a substantial
and unjustifiable risk that circumstances exist or a result will follow, described by the
statute defining the offense; and such failure constitutes a substantial deviationfrom
the standard of care which a reasonable person would exercise in the situation
àtotally objective test – if reasonable person would have been aware of the risk and DF
was not aware, DF acted negligently
2. ILCS: a person is reckless or acts recklessly, when he consciously disregards a
substantial and unjustifiable risk that circumstances exist or that a result will follow,
described by the statute defining the offense; and such disregard constitutes a gross
deviationfrom the standard of care which a reasonable person would exercise in
the situation
àobjective/subjective test – person MUST be consciously aware of the risk (subjective)
AND disregard that which an ordinary person would not do under the circumstances
(objective)
3. some jurisdictions define criminal negligence synonymously with recklessness, but
a) an act is not voluntary if actor is pressured/coerced to do it
b) an act is not involuntary merely because the actor does not remember doing it
2. ILCS: includes an omission to perform a duty which the law imposes on the offender
AND which he is physically capable of performing
3. criminal liability may be based upon an otherwise involuntary act where the
voluntariness element is provide by the actor’s prior knowledge that the condition
causing this act presented a threat of harm under the circumstances
eg. person with seizure disorder may be held liable for auto accident if aware of
disorder when he voluntarily drove the car
4. ILCS: possession is a voluntary act if the offender knowingly procured or received the
thing possessed, or was aware of his control thereof for a sufficient time to have been
able to terminate his possession
a) illustrates distinction between elements of the crime and evidence that will support a
finding that a particular element was present
b) must first determine whether person was in possession and then determine whether
such possession was voluntary
(1) physical ability to possess, along, does not constitute possession
C. Negative Acts
1. a person cannot be held criminally liable for a failure to act UNLESS it is shown that
the person owed a legal duty which was breached by his omission
a) duties can arise from relationship (e.g. parents), contract (e.g. policeman),
assumption, creation of peril, statutory obligation
2. one who negligently places another in a position of peril where it is reasonably
foreseeable that the victim would be injured by subsequent acts of others is criminally
culpable if such injuries occur
D. Attempt
1. C/L: a substantial step toward a criminal offense with specific intent to commit that
particular offense
a) MUST be within close proximity of success
b) CANNOT be mere preparation
2. ILCS: a person commits an attempt when, with intent to commit a specific offense, he
does any act which constitutes a substantial step toward the commission of that offense
a) it shall NOT be a defense to a charge of attempt that because of a misapprehension of
the circumstances it would have been impossible for the accused to commit the
offense attempted
