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Criminal Law
Rutgers University, Newark School of Law
Contesse, Jorge



Fall 2015


2 Sources of Criminal Law—

Model Penal Code (MPC)/Statutes
Common Law

Criminal activity is crime against society.

Professor Hart stresses the idea of moral condemnation along with physical consequences (punishment) in criminalization.

There’s criminal responsibility when there is an actus reus and a mens rea.

Four conditions must always be satisfied:

The primary addressee who is supposed to conform his conduct to the direction must know

Of its existence, and
Of its content in relevant aspects;

He must know about the circumstances of fact which make the abstract terms of the direction applicable in the particular instance;
He must be able to comply with it;
He must be willing to do so.

The standard of proof for criminal responsibility is “beyond a reasonable doubt of every fact necessary to constitute the crime charged.” In re Winship.

Supreme Court says the standard requires a juror’s mind be in a “subjective state of near certitude.”

Owens v. State (1992) (Presumption of innocence)

Facts: defendant was asleep in his car, which was running, surrounded by beer cans and intoxicated according to testing. He was charged with drunk driving and convicted based on the circumstantial evidence even though the police did not actually catch him driving.
Rule: A conviction upon circumstantial evidence alone is not to be sustained unless the circumstances are inconsistent with any reasonable hypothesis of innocence.
Rule: Presumption of innocence—defendant is innocent until proven guilty.


Class 2 Theories of punishment 29-48

Because punishment involves pain or deprivation that people wish to avoid, its intentional imposition by the state requires justification.

The dominant approaches to justification are retributive and utilitarian. (May be used simultaneously)


“Right to be punished”


General deterrence, individual deterrence, reform, incapacitation

Individual deterrence is sometimes divided into two forms:

(1) Incapacitation

(2) Intimidation

Class 3 Proportionality of punishment 69-81


Coker v. Georgia (1977) (Proportionality of Punishment)


Holding: No.

Reasoning: The 8th Amendment prohibits cruel and unusual punishment. Death penalty for defendant who raped in this case would be unconstitutional..

Concurrence: Death penalty, in all circumstances, is cruel and unusual punishment.




Principle of legality— nullum crimen sine lege, nulla poena sine lege or “there can be no crime without law, no punishment without law.”

i.e., A person may not be convicted and punished unless her conduct was defined as criminal. Retroactive criminal lawmaking is prohibited.
3 corollaries to the legality principle:

(1) Understandable — Criminal statutes should be understandable to reasonable law-abiding persons.

(2) Non-delegation — Criminal statutes should be crafted so that they do not “delegate basic policy matters to policemen, judges, and juries for resolution on an ad hoc and subjective basis.”

(3) Lenity Doctrine — Judicial interpretation of ambiguous statutes should “be biased in favor of the accused.”

Commonwealth v. Mochan (1955) (Requirement of Previously Defined Conduct)

Facts: defendant called woman and made lewd comments about her and was charged with intending to debauch and corrupt… and intending to harass.
Issue: Whether conduct can be prosecuted and punished under common law where the conduct charged in the indictments is not a criminal offense by statute.
Holding: Yes.
Analysis: Commonwealth v. Miller held the common law is sufficiently broad to punish as a misdemeanor…any act which directly injures or tends to injure the public to such an extent as to require the state to interfere and punish the wrongdoer, as in the case of acts which injuriously affect public morality. This case possibly violated the lenity doctrine because there wasn’t a statute in writing and when the court is in doubt, they’re supposed to favor the defendant.
Rule: At common law, any act is indictable which from its nature scandalously affects the morals or health of the community.

Keeler v. Superior Court (1970) (Requirement of Previously Defined Conduct)

Issue: Whether an unborn but viable fetus is a “human being” within the meaning of the California statute defining murder.
Holding: No.
Analysis: The Legislature did not intend for an unborn fetus to be considered a human being and to construe the stature to the contrary and apply it to the defendant would exceed judicial power and deny due process of law. At common law, an infant could not be the subject of homicide unless it had been born alive.
Rule: Fetus does not fall within the meaning of “human being” under California’s murder statute. Courts must look to the legislative intent behind the provision when interpreting statutes. The first essential of due process is fair warning of the act which made punishable as a crime. Judicial enlargement of the definition of “human being” must have been foreseeable to the defendant.
Dissent: “Drowned” child example—When a person ceases to be a human being is the same now and hundreds of years ago. The difference is that medical technology today might be able to save the drowned child and therefore, the court should adopt a test of medical testimony instead.

In Re Banks (1978) (Statutory Clarity)

Rule: A criminal statute is sufficiently definite if it gives an individual fair notice of the conduct prohibited, and guides a judge in its application and a lawyer in defending one charged with its violation.
Rule (Quimbee): A criminal statute is not void for vagueness if it gives fair notice of the criminalized conduct and provides sufficient guidance to judges and defending lawyers, and is not void for overbreadth if there is an available interpretation that does not inadvertently criminalize permissible actions.

3 Rules for Interpreting Statutes (Wainright v. S

conduct. No ultimate result is required to be guilty of this offense. E.g. DWI.

“Harm” is broadly defined such that even where there is no result, others are harmed.

To be guilty of an offense, it is sufficient that the person’s conduct included a voluntary act. It is not necessary that all aspects of his conduct be voluntary. 


Martin v. State (1944) (Voluntary Act) – MUST VOLUNTARILY APPEAR

Facts: A police officer brings defendant to a highway and arrested him for violating a statute stating “Any person who, while intoxicated or drunk, appears in any public place where one or more personas are present, and manifests a drunken condition by boisterous or indecent conduct, or loud and profane discourse, shall, on conviction, be fined.”
Rule: An accusation of drunkenness in a designated public place cannot be established by proof that the accused, while in an intoxicated condition, was involuntarily and forcibly carried to that place by the arresting officer.
Quimbee Rule: Criminal liability may only be imposed when the unlawful conduct is committed voluntarily.

The criminal law DOES NOT punish mere thoughts.

MPC 2.01(1) 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 MPC DOES NOT define voluntary act, but has a list of what is considered NOT a voluntary act.


The following are not voluntary acts within the meaning of this section:

(a) A reflex or convulsion;

(b) A bodily movement during unconsciousness or sleep;

(c) Conduct during hypnosis or resulting from hypnotic suggestion;

(d) A bodily movement that otherwise is not a product of effort or determination of the actor, either unconscious or habitual.

State v. Utter (1971) (Voluntary Act)

Fact: defendant was convicted of manslaughter after he stabbed his son while intoxicated and had no recollection of the events afterwards. defendant argues he was in an automatistic state as a result of his training and experience in WWII and that the attack was a conditioned response.
Rule: A court should not submit to the jury an issue of fact unless there is substantial evidence in the record to support it.
Quimbee Rule: Substantial evidence on the defense of conditioned response tending to demonstrate whether the defendant committed the requisite actus reus should be presented to the jury in a murder trial.