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Criminal Law
Rutgers University, Newark School of Law
Francione, Gary L.

Table of Contents
Chapter 1: Basic Principles of the Criminal Law… 4
A.     Sources of Criminal Law.. 4
B.      Justifications/Theories for Punishment. 4
C.      The Presumption of Innocence and Proof Beyond a Reasonable Doubt. 5
D.     Standards of Review.. 6
E.      The Role of the Jury. 6
F.      Statutory Interpretation. 6
Chapter 2: Constitutional Limitations on the Power to Punish.. 7
A.     14th Amendment Due Process: Void for Vagueness Doctrine. 7
B.      The 8th Amendment: Cruel and Unusual Punishment and the Principle of Proportionality. 7
C.      Equal protection. 7
Chapter 3: The Actus Reus Requirement. 7
A.     Acting Versus Thinking; The Proscription Against Thought Crimes. 7
B.      Acting on One’s own Versus Acting Under State Compulsion: “Situational Offenses”. 7
C.      Acting Voluntarily Versus Acting Involuntarily: The Unconsciousness Defense. 7
D.     Acting Versus Failing to Act: Liability for Omissions. 8
E.      Acting Versus Having a Status: “Status Crimes”. 9
Chapter 4: The Mens Rea Requirement. 9
A.     The Historical Development of Mens Rea. 10
B.      Problems of Statutory Interpretation. 10
C.      Intent. 11
D.     Knowledge. 11
E.      Special Problems in Intent. 12
1.      Transferring Intent. 12
2.      The Specific Intent/General Intent Distinction. 12
F.      Strict Liability Crimes. 14
Chapter 5: Mistake and Ignorance. 15
A.     Mistakes of Fact. 15
B.      Mistakes of Law.. 17
1.      Official Interpretation of the Law (AKA “Entrapment by Estoppel”). 17
2.      Ignorance or Mistake that Negates the Mens Rea. 18
3.      Fair notice and Due Process (The Lambert Exception). 19
Chapter 6: Causation and Concurrence. 19
A.     Causation. 19
1.      Actual (or “But For”) Causation. 19
2.      Proximate Causation (legal cause). 20
B.      Concurrence. 21
Chapter 7: Criminal Homicide. 22
A.     Definitional Issues. 22
B.      Categorizing Homicides. 23
C.      Degrees of Murder (First Degree vs. Second Degree Murder). 25
D.     The Doctrine of Provocation (Voluntary Manslaughter). 26
1.      The Early Common Law’s Categorical Approach to Provocation. 26
2.      The “Modern Reasonable Person” Test. 26
3.      Who Is “The Reasonable Person”. 27
4.      The Model Penal Code’s Emotional Disturbance Test. 28
E.      Depraved Heart Murder. 28
F.      Involuntary Manslaughter. 29
G.     The Felony Murder Rule. 30
1.      The Inherently Dangerous Felony Limitation. 31
2.      The Res Gestae Requirement. 31
3.      The Merger Doctrine. 32
4.      Third Party Killings: The Agency Rule. 33
H.     The Misdemeanor Manslaughter Doctrine. 33
CHAPTER 8: Sexual Offenses. 34
A.     Forcible Rape. 34
1.      The Element of Force or Threat of Force. 35
2.      What Counts (or Should Count) as Consent?. 36
3.      Toward a Right of Sexual Autonomy?. 37
4.      Race and Rape. 38
B.      Statutory Rape. 38
C.      Sodomy. 38
D.     Prostitution. 38
CHAPTER 10: CRIMINAL LAW DEFENSES. 38
A.     Justification Defenses. 38
1.      Self-Defense. 39
2.      Imperfect Self-Defense. 41
3.      Defense of Others. 41
4.      Defense of Habitation. 41
5.      Defense of Property. 42
6.      Necessity. 43
B. Excuse Defenses. 45
1. Duress. 45
2. Intoxication. 46
3. Insanity. 48
4. Diminished Capacity. 50
5. Infancy. 50
6. Entrapment. 51
CHAPTER 11: ATTEMPTS. 52
A. The Actus Reas Requirement. 53
B. The Mens Rea Requirement. 55
C. The Defense of Impossibility. 56
CHAPTER 12: ACCOMPLICE LIABILITY (COMPLICITY). 57
CHAPTER 13: CONSPIRACY. 59
A. The Agreement. 60
B. The Mens Rea of Conspiracy. 60
C. The Pinkerton Rule. 61
D. Wharton’s Rule. 62
E. The Shape and Boundaries of Conspiracies. 62
CHAPTER 14: SOLICITATION (Not in the text book). 63
 
 
 
 
Chapter 1: Basic Principles of the Criminal Law
A.                  Sources of Criminal Law
Criminal law – 2 Key differences from other types of law (i.e. torts/contract)
The public/state v. Defendant. We collectively bring suit against criminals.
There is a moral dimension to all law
Social condemnation is attached to criminals forever and criminals can be fined
What is a crime?: an action prohibited by law or a failure to act as required by law
Originally criminal law was common law (judge made law), but became statutized early on so that people would know what the rules are
Model penal code was developed by lawyers/judges as a national guideline for criminal law. (States adopted portions of MPC and developed their own criminal codes)
B.                  Justifications/Theories for Punishment
o   5 Theories of punishment
§ General deterrence – Deter the public
§ Specific deterrence – Deter the person (forward looking and should punish to the extent needed to deter and no more)
§ Rehabilitation – Changing the person morally, to make them want to do the right thing (therapy)
§ Incapacitation – Jail (goal is only to hold people. No rehab or deterrence, etc.)
§ Retribution – “eye for an eye” backward looking (you did something wrong and now you pay for it)
o   Utilitarian
§ The utilitarian theory is essentially one of deterrence – punishment is justifiable if, but only if, it is expected to result in a reduction of crime. Punishment must be proportional to the crime, i.e., that punishment be inflicted in the amount required (but no more than is required) to satisfy utilitarian crime prevention goal
§ Utilitarians consider the effect of a form of punishment in terms of both general deterrence and specific (or individual) deterrence. 
§ When the goal is general deterrence, punishment is imposed in order to dissuade the community at large to forego criminal conduct in the future. 
§ When the goal is specific deterrence, punishment is meant to deter future misconduct by an individual defendant by both preventing him from committing crimes against society during the period of his incarceration (incapacitation), and reinforcing to him the consequences of future crimes (intimidation).
o   Retributive
§ Under a retributive theory of penal law, a convicted defendant is punished simply because he deserves it. There is no exterior motive such as deterring others from crime or protecting society – here the goal is to make the defendant suffer in order to pay for his crime. 
§ Retributive theory assigns punishment on a proportional basis so that crimes that cause greater harm or are committed with a higher degree of culpability (e.g., intentional versus negligent) receive more severe punishment than lesser criminal activity.
o   Regina v. Dudley and Stephens – Queens Bench Division, 1884
§ A group of guys went sailing. They got caught in a storm and pushed out to sea. After days without food, two of the men decided to eat the cabin boy (who was sick from drinking seawater). Extreme hunger does not justify murder and is therefore punishable.
§ Retributive – they were sentenced, they did something wrong they should be punished
·         1) they must be punished criminally or 2) the punishment must be in proportion to the harm (narrower view of retribution of just dessert)-murder is a taking of a life therefore the murderer must die,
§ Utilitarianism- they were sentenced to death in order to deter similar conduct in the future
·         If it was excusable they should not have been punished
C.                  The Presumption of Innocence and Proof Beyond a Reasonable Doubt
Burden of Pro

and the social harm it creates
A.                  Acting Versus Thinking; The Proscription Against Thought Crimes
o   We don’t punish thoughts, only actions (see Dalton case and Wisconsin v. Mitchell)
B.                  Acting on One’s own Versus Acting Under State Compulsion: “Situational Offenses”
o   Can’t be compelled to do it by government. (See Martin v. State, where D was arrested at his home while drunk and taken on the highway, he was involuntarily taken onto the highway and cannot be convicted of being drunk on a public highway)
C.                  Acting Voluntarily Versus Acting Involuntarily: The Unconsciousness Defense
o   The act has to be voluntary to constitute a criminal offense
o   What do we mean by voluntary act?: When you look at a broad enough timeframe there may be evidence that the act wasn’t voluntary (Hypo of kid killing someone, but you look at his history and current predicament)
o   Model Penal Code § 2.01: Requirement of Voluntary Act; Omission as Basis of Liability; Possession as an Act
·         A person is not guilty of an 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.
·         The following are not voluntary acts within the meaning of this Section:
§ A reflex or convulsion
§ a bodily movement during unconsciousness or sleep
§ conduct during hypnosis or resulting from hypnotic suggestion
§ a bodily movement that otherwise is not a product of the effort or determination of the actor, either conscious or habitual
·         Liability for the commission of an offense may not be based on an omission unaccompanied by action unless:
§ the omission is expressly made sufficient by the law defining the offense; or
§ a duty to perform the omitted act is otherwise imposed by law.
·         Possession is an act, within the meaning of this Section, is the possessor knowingly procured or received the thing possessed or was aware of his control thereof for a sufficient period to have been able to terminate his possession.
o   (See State v. Decina, It is no necessary that all aspects be voluntary. Where an epileptic who knew he was subject to attacks voluntarily decided to drive, she possessed the necessary actusreus when she killed someone.)
D.                  Acting Versus Failing to Act: Liability for Omissions
o   Generally, a person had no legal obligation to act even if (1) by not acting harm results, and (2) the person could have acted with no risk to personal safety
o   Five situations where individuals have a legal duty to act
§ A statute imposes a duty
§ One stands in a certain status relationship to another
§ One has assumed a contractual duty to care for another
§ One has voluntarily assumed the care of another and so secluded the helpless person as to prevent others from rendering aid
§ A person creates a risk of harm to another
§ – (Some States) Bad Samaritan Laws (like Vermont)