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

Vera Bergelson
Crim. Law
Spring 2015
·         Requires:
o   Probable cause and can’t wait for warrant (there will be a subsequent hearing); or
o   A warrant (which needs probable cause to obtain).
·         Can be held in custody for 24 hours before arraignment (read the crime being charged).
·          In a case of felony a grand jury will decide whether or not to indict; basically a mini trial.
·         Allowance of bail will depend on: flight risk, seriousness of crime, and likelihood of another crime in the meantime.
Legality- Limits punishment
·         There must be a preexisting law making something into a crime. Never retroactive.
·         If the statute is very vague there can also be a legality issue.
·         If a felony is changed to a misdemeanor after the crime is committed, it will negate the crime already committed only if the legislature makes it retroactive.
·         In Rogers the court held that a crime could be changed retroactively if the change was foreseeable.
·         Courts are divided whether a punishment must be proportional to the crime but most courts hold that it must be.
·         Either use:
1.       Gross Disproportionate Threshold
a.       Sentence
b.      Triggering crime
c.       Criminal history.
2.       Comparative
a.       Compare to sentences of other crimes
b.      Compare to other jurisdictions.
Actus Reus- voluntary criminal act
·         Omission can be culpable only where:
o   Statutory obligation to act;
o   Contractual obligation;
o   Status; i.e. parent, spouse, etc.
o   Assumption of care, where that assumption precludes someone else from taking care;
o   Creation of peril.
·         Possession can be an act only where the defendant had a chance to terminate the possession.
Mens Rea
·         Three elements of a crime:
1.       Conduct;
2.       Result;
3.       Attending circumstances.
·         Four levels of culpability:
1.       Purpose (intent for the act/result);
2.       Knowledge (knowledge that the act/result would happen);
§  Willful blindness is considered knowledge by many courts. MPC says that “high probability” of crime is enough. (e.g. drugs in the trunk of a car).
§  MPC says that where the actor is “practically certain” that an outcome will occur, will be considered knowledge.
3.       Recklessness (acts in knowledgeable disregard of a risk);
4.       Negligence (acts without knowledge of a risk; reasonable standard for the risk or gross negligence; see below).
§  Some courts consider an unreasonable mistake to be reckless; not like MPC definition, which is always subjective for negligence.
§  Older courts used regular negligence, but modern courts require gross negligence for criminal culpability.
·         Under MPC, recklessness is enough for any crime that is not given a statutory level of Mens Rea.
Strict Liability Offense
·         Under common law can apply to an offense where the statute does not specify the Mens Rea. Will generally be applied only where the purpose of the crime is for public welfare (i.e. drugs in a school zone; statutory rape, etc.).
·         Under the MPC a strict liability can only create a violation and not a felony.
·         There are differences among the courts regarding liability for an employer based on the acts of an employee. Generally, there is no vicarious liability. (for corporations see below).
Ignorance or Mistake
·         Mistake of fact or law is not a defense unless the mistake negatives the required mens rea of the crime. (i.e. tax fraud, where the evasion must be willful).
·         Mistakes of law are generally not an excuse because the actor is obligated to know the law. Mistakes of fact are much easier (i.e. took someone else’s thing knowing it was his).
·         The MPC, and most courts hold that the mistake doesn’t need to be reasonable (unless the mens rea is negligence).
·         Some courts followed the “lesser crime” or “morally wrong” doctrines, (holding the actor responsible for more serious crimes where the act was morally wrong or was a smaller crime). The MPC rejects this doctrine.
·         I

selling drugs but it was really flour). (same under MPC)
o   Mistake of Law- where D thought he was violating a law but was not. (Thought 18 was age of consent but really the age is 16). This is not an attempt because there was no attempt of illegality.
o   Legal Impossibility- where the mistake is regarding a legal fact. (thought that girl was 15 but was really 16. The act was done but the illegality was mistaken based on a fact). Two thirds of states do not allow this defense.
Complicity- an accomplice is anyone who aids, abets, or encourages the crime.
·         There must be intent to help the crime. Mere knowledge is not enough. (Intent may be inferred from the circumstances; such as did the D have a stake in the crime, or the serious nature of the crime).
·         Purpose is only needed for the culpable behavior, but whatever level of mens rea is needed for the result will be needed for the accomplice. (e.g. guy sets victim up to get beaten up, and victim dies from the beating. D is an accomplice for the act of the assault, and was reckless as to the result. Can be guilty only of manslaughter).
·         Courts have held that where a few people engage in a gun fight, that all are considered accomplices if a bystander is killed, because they intended to encourage the reckless behavior.
o   Some courts hold that any reasonably foreseeable outcome of the encouragement can be imputed to the accomplice. (e.g. guy sets up an assault, but the actor commits first degree murder). Other courts hold that it must be the natural and probable outcome. The MPC does not follow either, rather the accomplice can only be culpable for the act which he intended to aid.