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Criminal Law
Rutgers University, Newark School of Law
Thomas, George C.

Criminal Law – Professor George Thomas – Fall 2011 – Rutgers School of Law
1.      Statutory – state legislative statutes are primary source today
2.      Common Law – created and enforced by the judiciary in the absence of a statute defining the offense; no federal common law crimes, and the majority of states retain common law crimes implicitly or by express “retention statutes”.
3.      Constitutional Crimes – e.g. treason
4.      Administrative – agencies proscribe rules that may be punished as crime
5.      Model Penal Code – standard created by ALI.  Not binding, but influenced drafting of state criminal statutes.
1.  Utilitarianism (forward) – augment happiness of community; punish to prevent a greater evil.
§  General deterrence:  for public at large, know committing crime=punishment
§  Specific/Individual deterrence:  deter individual from committing future crimes
Intimidation-punishment unpleasant so will obey law in future
§  Rehabilitation/Reform: providing w/ skills, psychological aid, etc.
2.      Retibution (backward) – just deserts and free will, punishment deserved for wrongdoing
§   Benefits and Burdens:  wrongdoer unjustly gets a benefit when society gets the burden; punish to restore moral equilibrium
§  Punishment as Defeat: shows criminal that his rights are not greater than the victim’s rights.  Restores equilibrium.
3.      Hybrid = Mainstream View Today – reason for criminal justice system is utilitarian/ deterrence, but when we make decisions on individual punishment should be based on retribution.
§    Queen v. Dudley & Stephens (boat cannibalism) both men receive six months in prison
§  Proportionality of punishment:  e.g. Harmelin v. Michigan (life sentence for possession of cocaine), Coker v. Georgia  (death penalty for rape unconstitutional b/c not proportional to crime)
1.      NO ex post-facto law – no person can be prosecuted for anything that’s not a crime. 
§  Commonwealth v. Mochan:  (crime of harassing, embarrassing, villifying not prohibited by any statute, but found guilty under the common law). 
2.      Due Process – courts are prohibited from retroactively enlarging the scope of criminal law. 
Fair Notice – Statute must be clear so that an average person can understand its meaning
§  Keeler v. Superior Court:  (whether unborn viable fetus is a “human being” within the definition of murder)
3.      Vagueness, Overbreadth, and Lenity – Grossly vague statutes are unconstitutional.  Statutes must be construes in the most favorable terms for the criminal. 
§  Use rule of lenity only when scales are even for tie-breaker
§  To dispel vagueness in statute look at C/L meanings, statutory history of definitions, judicial interpretation, and Legislative intent
§  In Re Banks:  (peeping tom statute)  Statute gave adequate definition and notice, not too overbroad (i.e. conduct must be wrongful)
ACTUS REUS  Physical or external component of crime
Voluntary act or omission (if you have a legal duty to act) that causes social harm.
1.      Voluntary Act
§  Willed muscular contraction or bodily movement.  Willed means that the act was controlled by the actor (“I raise my hand” v. “my hand came up.”)
2.      Involuntary Acts MPC § 2.01 (2)
“My will was not manifested in any way – I did not act”/ v. “I am not responsible for my act” (money or life)
§  Reflex or convulsion, e.g. epileptic seizures
§  Unconsciousness
§  Hypnosis  MPC § 2.01 (2) (c)
Habit – MPC declares that a habitual action done w/o thought is to be treated as a voluntary act (not a defense)
Possession – MPC §2.01 (4) provides that poss is an act only if the person is aware that she had the think she’s charged w/possessing.
Martin v State – (cops brought drunk to highway and charged him w/ being drunk on a highway). Statute read “anyone who appears in a public place”.  MPC§2.01 requires that the act be voluntary.  Court says the appearance must be voluntary as well.
People v. Decina – D is held liable for the death of 4 people he killed when he had a seizure & car went out of control.  Held:  Getting b/h the wheel knowing he was subject to seizures was enough to meet the vol act requisite (RECKLESSNESS-knowingly disregarded a risk).
State’s argument- Acted by operating motor vehicle v. D’s claim did not act (won’t work), but mens reas claim not reckless/negligent.
State v Utter – (father convicted of manslaughter murder of son appealed b/b didn’t submit evidence re: “conditioned response” from days in the army). Held:  Unconsciousness excuses crim liab but he is culpable b/c induced by his drinking. 
3.      Omissions or Failure to Act MPC§ 2.01(3)(a)
Ordinarily person is not guilty by failure to act, even if the failure permitted harm to occur to another & even if the person could have acted at no personal risk to safety
§  Statutory duty, e.g. Vermont good samaritan law
§  Duty by virtue of status/special relationship, e.g. doctor or parent
§  Duty by K, e.g. lifeguard
§  Duty by voluntary assumption/undertaking and isolated the helpless person as to prevent others from rendering aid.
§  Duty by risk creation, e.g. hitting someone w/ your car
People v. Beardsley – (status rel’p: D convicted of manslaughter, failure to care or protect of lover who had overdosed on morphine from death was omission) Held: No legal duty, so not an omission even though moral obligation.
Barber v. Supe

re to perceive it involves a gross deviation from the std of care that a reasonable person would observe “in the actor’s situation”.
I.e. vehicular homicide
§  Strict Liability:  No mental state need to be shown (statutory rape, bigamy)
§  Minimum Culpability required if not proscribed by law = RECKLESS
–  At C/L, intentionally means both purposely and knowingly.
5.  Specific intent (special intent) D, in addition to desiring to bring about the actus reus, must have desired to do something further. 
§  Intent to commit some act that is not part of actus reus of the offense
§  A special motive for committing the actus reus of an offense
§  An awareness of a particular attendant circumstance.
i.e. “breaking and entering the dwelling house of another at night with an intent to commit a felony therein.”  The mens rea intention to commit a crime therin doesn’t pertain to the actus reus (breaking and entering).  If you have a mens rea that is separate & apart from the mens rea of the actus reus (necessary for the actus reus), it’s a specific intent crime. 
The actor has a specific act in mind. 
General rule for distinguishing w/intent to do X.  Also if examples are crimes even if person didn’t have extra intent. 
Significance:  Intoxication rarely negates a crime of general intent, but may sometimes negate the specific intent for a particular crime.  Also, a mistake is more likely to be enough to negate the required specific intent.
5.      General Intent – D desired to commit the act which served as the actus reus.  All you need is the mens rea of the statute. 
I.e. battery.  Actus reus is a physical injury or offensive touching of another.  So long as D intends to touch another in an offensive way, he has the “general intent” that is needed.  (If D touches V w/ a knife merely intending to graze his skin and frighten him, this will be enough since D intended the touching and no other intent is required.)
6.  Transferred Intent – A person acts “intentionally” if the result of her conduct differs from that which she desired only w/r/t the identity of the victim. Verbal locution v. principle that allows tranfer of intent from A to B.  Locution not needed because model penal code analysis of the act, result, and mens rea w/r/t each victim/material element. MPC§2.03(2)(a)