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Criminal Law
Rutgers University, Newark School of Law
Bergelson, Vera

Criminal Law Fall 2012

Rutgers-Newark: School of Law ; Vera Bergelson

Structure, Theories and Limitations of Criminal Law

1) The Structure of the Criminal Justice System

a. Sources of Criminal Law

b. The Criminal Process

2) Theories of Punishment

a. Two types of punishment

i. Utilitarian: Maximize the net happiness of people.

1. Deterrence

a. General deterrence

b. Specific deterrence

2. Rehabilitation

3. Incapacitation

ii. Retributivism: Punish the morally culpable

3) Amount of Punishment:

a. General principle

b. Meaning of theories

i. Utilitarian

ii. Retribution

c. Constitutional law

d. Certainty v Severity: The first increases the risk of conviction while the second increases the risk of punishment

i. Certainty: It appears more effective but it is difficult to implement

ii. Severity: Has a more doubtful deterring effect, as it works to deter far less percentage wise

4) Constitutional Limits

a. Legality principle: A person may not be punished unless her conduct was defined as criminal before she acted

i. Rule against retroactive punishment

ii. Bill of attainder: Legislation that singles out for punishment a particular individual or easily identified group

iii. Ex Post Facto: Law that either makes conduct criminal that was not criminal at the time committed, increases the degree of criminal conduct beyond what it was at the time it was committed, or increases the maximum permissible punishment for conduct beyond what it was at the time of commission

iv. Problem of vagueness: Criminal laws that are unreasonably vague cannot be enforced

1. It does not provide fair warning of what is prohibited

2. It gives too much discretion to law enforcement

b. Proportionality: Theories of punishment agree that punishment for a given crime should be roughly proportional to that crime’s seriousness

i. Retributivists: Main purpose is to require criminals to pay their debt to society by undergoing punishment

ii. Utilitarians: They focus on deterrence and less likely to be wedded by this principle

c. Criminality:

d. Cases:

i. Keeler: Law can’t be extended and deny the accused fair warning where he was not aware that his actions were punishable as a crime (fetus)

ii. Rogers: Courts can overturn law (year and a day rule) based on policy and is allowed by Due Process and is not ex post facto

iii. Ewing: Three strikes law does not violate the 8th amendment of the constitution’s prohibition on the imposition of a sentence that is grossly disproportionate to the severity of the crime

Actus Reus

1) Actus reus: A voluntary act

a. Act: A bodily movement or muscular contraction

b. Voluntary: Movement of the body which follows volition in which a person receives stimuli from outside and from within herself, which themselves act as further stimuli, some of which produce electrical impulses from the brain that result in bodily movements.

2) Non-voluntary acts

a. Thoughts, words, states of possession and status: There must be an overt act

i. Words: It may constitute a conspiracy or accomplice liability

b. Involuntary acts

c. Omissions

3) Possession: Mere possession may sometimes constitute necessary criminal acts

a. Knowledge of possession: The act of possession is almost always construed so as to include only conscious possession

b. Knowledge of guilty character: It does not mean that D must be aware of the object’s illegal nature

c. MPC 2.01 (4): Possession can be a criminal act only if D knew he had possession of the object and was aware of his control thereof for a sufficient period to have been able to terminate his possession

d. Presumptions: The statute makes presumptions

i. It is rebuttable by D

4) Status: D cannot be convicted for merely having a certain status or condition rather than committing an act

5) Act must be voluntary: An act cannot satisfy the actus reus requirement unless it is voluntary

a. MPC 2.01(2):

i. Reflex or convulsion

1. It is voluntary: If D has time to make a decision whether or not to take action

ii. Unconsciousness or sleep

1. Blacking out D: When D has blacked out and has no recollection of committing the crime

a. All courts agree that this amnesia is not a defense

b. Automatism defense: If D can demonstrate that at the time of the crime he was on “automatic pilot” and was not conscious: It is involuntary

iii. Hypnosis

iv. Other acts: If it is a bodily movement that is not a product of the effort or determination of the actor, either conscious or habitual

1. Self induced state: D’s acts prior to an unconscious state can meet this requirement

a. Risk knowingly imposed on others: The act requirement is satisfied if a person knowingly puts himself in a position of imposing risk on others

i. Tendency to get seizures: It fulfills the act requirements

6) Omission: The defendant is usually not liable for failing to act

a. Exceptions:

i. Statute that makes it a crime to omit the act in question

1. Some statutes impose a duty to take affirmative action

ii. Some other factor giving a legal duty to act

1. Special relationship: A close relationship between D and V such as a close blood relationship

a. Interdependence: If a relationship arises of such mutual dependence that a failure to aid can give rise to liability

2. Contract: A legal duty can arise from contract

a. It does not need to be a contract between D and V: It can be an employment contract

3. Danger caused by D: A duty can arise if the danger was caused (even innocently) by the defendant

4. Undertaking: A D can come under such a duty to rescue if he undertakes to give assistance

a. Especially true if he leaves the victim worse off than he was before or because all the other potential rescuers are dissuaded from helping since D is already doing so

7) MPC: A person cannot be convicted of a crime unless his conduct includes a voluntary act or the omission to perform an act in which he is physical capable

a. Act: bodily movement whether voluntary or involuntary

i. 1.13(2)

b. Defines voluntary indirectly by listing involuntary bodily movements

i. 2.01(4)

c. Possession: It is an act if the possessor either knowingly obtained the object possessed or knew she was in control of it for a sufficient period to have been able to terminate possession

i. 1.04(5)

d. The requirements set out do not apply to violations: Unless it is consistent with effective enforcement of the law defining an offense

i. Violation: Offense for which the max penalty is a fine or civil penalty

ii. 1.04(5)

e. Omissions: A person is not guilty of any offense unless his conduct includes a voluntary act or the omission to perform an act of which he is physical capable

i. 2.01(1)

ii. Liability based on omission is allowed when

1. The law defining the offense provides for it

2. If the duty to act is imposed by law

3. 2.01(3b)

Mens Rea

1) Mens Rea: The requirement of a culpable state of mind

a. Common law: Intent, knowledge, recklessness and negligence

i. Negligence and recklessness:

1. Negligence: The essence of his act is that he acted without consciousness of the risk he was imposing

2. Recklessness: Can be defined as acting without consciousness of an extremely great risk

ii. Strict Liability: Some crimes are defined that they require no mens rea at all

1. Public welfare violations usually only punishable by fine

b. Ambiguity in statute: Most crimes have a number of material elements that a prosecutor is required to prove

i. They might not all be the same

ii. Ambiguity: MPC avoids this pro

ii. There is no necessary direct injury to any person or property but simply a danger of such and it is this danger that the statute seeks to curtail

iv. The penalty proscribed is small

v. Conviction does not do grave damage to D’s reputation and

vi. It is relatively easy for D to find out the true facts before she acted, making it not unfair to punish her without regard to fault

c. Not applicable:

i. Where a common law crime is codified

ii. The statute is complex and is easy to violate innocently and the statute imposes a stiff penalty for violation

iii. MPC: It can only be a violation, which is a minor offense that does not constitute a crime and may be punished only by fine or forfeiture

1. Only imposes strict liability if it is expressly stated

7) Vicarious Liability: A kind of absolute liability may be imposed upon one person for the act of another and the actus reus is dispensed with

a. Employer liability and automobile owner

b. Silent statute on mens rea: Principal cannot be convicted

c. Severity of punishment: It shows legislative intent and if it is light, it is strict liability

8) MPC: 2.02

a. Subsection 1: Does not apply to violations

b. Mens rea: Purposely, knowingly, recklessly or negligently

i. Purposely:

1. Result or conduct: If it is his conscious object to engage in conduct of that nature or to cause such result

2. Attendant circumstances: Is aware of the existence of such circumstances or he believes or hopes that they exist

ii. Knowingly:

1. Results: Is aware that it is practically certain that his conduct will cause such a result

2. Conduct and Attendant Circumstances: Aware that his conduct is of that nature or that such attendant circumstances exists

iii. Recklessly and Negligently

1. Recklessly: If he consciously disregards a substantial and unjustified risk that the material element exists or will result from his conduct

a. Substantial and unjustifiable: If considering the nature and purpose of the actor’s conduct and circumstances known to him, its disregard would involve a gross deviation from the standard of conduct that a law abiding person would observe in the actor’s situation

2. Negligent: If the actor should be aware of a substantial and unjustifiable risk

a. Substantial and unjustifiable: its disregard involves a gross deviation from the standard of conduct that a reasonable person would observe

i. Mental characteristics do not matter

c. Interpretation

i. Applies to every element of the crime

ii. 2.02(4): If a statute defining an offense prescribes the kind of culpability sufficient for its commission but does not distinguish the material elements, a court interprets the mens rea provision applying to every material element

iii. Subsection 3: Silent on culpability = The material element is established if a person acts purposely, recklessly or knowingly

d. Strict Liability 2.05

i. The actus reus and mens rea requirements do not apply to violations

ii. No strict liability in pena law other than violations that do not result in imprisonments or probation