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Criminal Law
Rutgers University, Newark School of Law
Green, Stuart

Criminal Law Green Fall 2016

A. Introduction; The Justification of Punishment

Nature, Sources, and Limits of the Criminal Law

Purpose was the bring coherence to the criminal law
Greatly influenced the criminal law reform.
Some states adopted major portions of the code while others use the code as guidance to fill holes in their statutory systems.

Principles of Punishment

Forward looking theory with the main goal being maintain the happiness of society; to prevent a greater evil.
Justifications for utilitarian logic include:

General Deterrence: Punishment may deter persons other than the criminal from committing similar crimes for fear of incurring the same punishment. Forward-looking.
Special Deterrence: Punishment may deter the criminal from committing future crimes. Forward looking.
Deterrence is the good outcome utilitarians aim to achieve—by punishing criminals, future citizens will be deterred from committing the same crime.
helps turn criminals into productive members of society.
takes dangerous criminals off the streets.

Utilitarianism is a consequentialist theory because it looks primarily at the consequences of the punishment, not the wrongdoing of the act.

Perverse incentives it creates for punishing innocent people and also disproportionate punishment.
Under utilitarian logic, it would make sense to punish an innocent person harshly to set an example against a string of robberies in an area.
Likewise, it would make sense to give a life sentence to a child who steals a pack of gum, to deter future robberies

Aim of action is punishment for wrongdoing by free will.

Punishment is imposed to vent society’s sense of outrage and need for revenge.
People deserve pain inflicted if people do something wrong b/c human beings have free will and when they choose to do wrong, it is impt to punish them.
This theory seeks to balance the books of society: if benefit taken, then benefit must be recouped.Backward-looking. Paying a debt.
Positive Retribution: society must impose punishment equivalent in severity to the crime
Negative Retribution: seriousness of offense sets upper limit to permissible punishment

Queen v. Dudley and Stevens (eat young boy to survive)

Rule: (1) Defense of necessity does not justify homicide unless the act was committed in self defense. (2) A person may not sacrifice another person’s life to save his own.
Reasoning: Although it was likely that if they hadn’t fed upon the boy or one of themselves, they would have died, there was no greater necessity for killing the boy rather than any of the other three men.

People v. Du (Racist Asian lady killed 15 year old Latasha)

Rule: A person sentenced for a crime involving a deadly weapon should not be reduced to probation except in unusual cases where the interest of justice would be best served.
Reasoning: Unusual cases include those in which the defendant was exceedingly provoked or when a defendant was particularly vulnerable. Imprisoning Du would not serve the purposes of sentencing (7 listed below). Three reasons this case is unusual: (1) Du lawfully possessed in for protection and did not intent to commit a crime with it. (2) Du does not have a history of committing violent crimes, and (3) Du was under extreme stress at the time she committed the crime. — Probation warranted.
Take-away: Objectives of Sentencing

​1. Protection of society

​2. Need for punishing to defendant

​3. Encourage defendant to live law-abiding life

​4. To deter others

​5. To isolate defendant so she can’t commit crimes

​6. To secure restitution for the victim

​7. To seek uniformity in sentencing

United States v. Gementera (I stole stamps!)

Rule: Conditions for supervised release, including those that cause shame or embarrassment, imposed upon offenders by a district court do not violate the Sentencing Reform Act if they are reasonably related to the statutory purposes of deterrence, protection of the public and the legitimate purpose of rehabilitation.
Reasoning: The conditions imposed on defendant were meant to show him that his crime affected real people. Also, just because a condition of supervised release embarrasses or shames an offender does not render it inappropriate, instead it could allow D to consider wrongfulness of his crime.Though unusual, the condition was coupled with positive requirements including lecturing at a school.

* Retributivist looks back at crime to justify punishment

* Utilitarian looks forward to justify punishment

* Education: The publicity attending the trial, conviction, and punishment of some criminals serves to educate the public to distinguish good and bad conduct and to develop respect for the law.

B. Elements of Criminal Conduct

Principles of Legality

Three consequences to the principle of legality

​ 1. Criminal statutes should be understandable to reasonable law-abiding ppl.

​ 2. Criminal statutes should be crafted so that they do not “delegate basic ​

​ policy matters to policeman, judges, and juries for resolution on an a hoc ​

​ and subjective basis.

​ 3. Judicial interpretation of ambiguous statutes should “be biased in

​ favor of the accused,” a concept known as the lenity doctrine. ​​
No Ex-Post Facto Laws allowed

A person may not be convicted and punished unless her conduct was defined as criminal. “No crime without law, no punishment without law.”

Due Process

Court’s cannot retroactively enlarge the scope of a criminal law.

Fair Notice

Essential aspect of due process is fair warning of the act which is made punishable as a crime.
“The terms of a penal statute creating a new offense must be sufficiently explicit to inform those who are subject to it what conduct on their part will render them liable to its penalties, is a well-recognized requirement…”

Vagueness, Overbreadth, Lenity (Statutory Construction)

Overly VAGUE statutes are unconstitutional.
Statutes are construed in most favoraeble terms for D.
Rule of Lenity – Only use rule of lenity when both meanings are equally plausible (If there is serious doubt about what legislature meant, court should find in favor of the accused.)
To interpret Brad statute, look at C/L, legislative history, precedents, circumstances surrounding law’s adoption, earlier statutes on same subject.
PUBLIC POLICY – overly broad statutes could lead to overcriminalization and excessive punishment.

Elements of a Crime

Actus Reus: A physical act or unlawful omission by the defendant.
Mens Rea: The state of mind or intent of the defendant at the time of his act.
Concurrence: The physical act and mental state existed at the same time.
Harmful Result and Causation: A harmful result caused (both factually and proximately) by the defendant’s act.
Conduct: this term is reflects the criminal act and intent elements.

According to the MPC , “conduct” means an action or omission and its accompanying state of mind.

Actus Reus Actus Reus: pp. 133-43; Model Penal Code § 2.01 (in Appendix)

the physical or external part of the crime

(most) common definition includes both conduct and harmful result.

Actus Reus is to be interpreted as the comprehensive notion of act, harm, and its connecting link, causation, with actus expressing the voluntary physical movement in the sense of the conduct and reus expressing the fact that this conduct results/causes in a certain proscribed harm.
Ex. A throws grenade in B’s house, killing B. Actus = throwing; Reus = death

Voluntary Act: Uncoerced, “willed,” bodily movement controlled by mind of actor

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.

MPC § 2.01(2) – NOT voluntary acts – reflex or convulsion, bodily movement during unconsciousness or sleep, conduct during hypnosis, a bodily movement that otherwise is not a product of the effort of determination of the act.
People v. Decina: D knew he was an epileptic but he drove away anyway. He possessed the AR of “negligently driving a vehicle, so as to cause the death of a human being.” Although death resulted from an “involuntary act”, turning on the ignition and driving there were voluntary acts.

GENERAL RULE: “Every man

rape, rape, battery, manslaughter, arson.



Common Law: A person commits the social harm of an offense intentionally if

It was his conscious object to cause the results; or
He knew it was virtually certain to occur as the result of his conduct.

the term intentionally is not used. MPC subdivides intent into two components.

§2.02(2)(a) – A person acts purposely with respect to a material element of an offense when:

If the element involved the nature of his conduct or a result thereof, it is his conscious object to engage in the conduct of that nature or cause the particular result; AND
If the element involves the attendant circumstances, he is aware of the existence of such circumstances or he believes or hopes that they exist

Knowingly: §2.02(2)(b) – A person acts knowingly with respect to a material element of an offense when:

If the element involves the nature of his conduct or the attendant circumstances,k he is aware that his conduct is of that nature or that such circumstances exist; and
If the element involves a result of his conduct, he is aware that it is practically certain that his conduct will cause such a result.

Distinction between Knowingly/Purposely

Knowingly = conduct likely to result in harm
Purposefully = conduct certainly to result in harm

Transferred Intent

Legal Myth – when a defendant intends to cause harm to one person but accidentally causes the same harm to another.
There is no requirement of an unlawful intent to kill an intended victim. The law speaks in terms of an unlawful intent to kill a person, not the person intended to be killed.

(Reckless and Negligence)

MPC §2.02(2)(c) Recklessly

A person acts recklessly with respect to a material element of an offense when

Actor must be aware they are taking a risk
Actor must disregard a substantial and unjustifiable risk
Risk must be a gross deviation from the standard of conduct that a law-abiding person would take.

MPC §2.02(2)(d) Negligently

A person acts negligently with respect to a material element of an offense the he should be aware of a substantial and unjustifiable risk that the material element exists or will result from his conduct. Risk must be substantial and unjustifiable meaning a gross deviation from the standard of conduct that a law-abiding person would take.
Distinguishable from Reckless – Does not involve a state of awareness**

One who acts negligently does not choose to cause harm so he should not be punished.
Defense: negligence can be deterred, so punishment of negligent conducts serves a useful purpose. People who act negligently demonstrate by their behavior an indifference to the rights of others, and therefore, morally deserve punishment.

Common Law: Person acts in a “criminally negligent” manner if he should be aware that his conduct creates a substantial and unjustifiable risk of social harm

Degree of Risk: high level of culpability is usually required to convict a person of a crime on the basis of negligence because the conviction results in loss of liberty.
Negligence as objective fault: negligent actor is not blamed because he possessed a wrongful state of mind but because he failed to live up to the objective of conduct of a reasonable person.