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

Criminal Law Bergelson Spring 2017

Topic Outlines

Intro Materials:

Types of Punishment and Magnitude of Punishment

Prison is relatively new. In old days, felonies were punished by death. Other forms of punishment were mutilation of body parts.

How do you punish to deter and rehabilitate?

Three strike laws? Mandatory minimums? How much is enough?

Death penalty for child rapists? US says no – only for homicide.

The moral limit of criminal law – Joel Feinberg

Decriminalization of sodomy

Why Punish:

Two categories exist – retributive (look backwards to see what the behavior was and what punishment is justified as a result) and utilitarian (sometimes called consequentialist or instrumentalist – look forwards to see what good consequences the punishment will produce in the future – deterrence of the offender or others, incapacitation of the offender, and rehabilitation of the offender). What is better? In many cases, one ideal or the other will produce the same results. In others, one ideal demands harsh punishment while the other lenient.

Lex talionis (an eye for an eye) approach is often linked to the idea of retributivism. Jus Talionis (the right of retribution) is also sometime suggested.

Actus Reus:

The requirement of culpable action. See MPC §2.01.

When is an act voluntary? Per the Model Penal Code, an act is a bodily movement whether voluntary or involuntary.

“I didn’t mean to” or “I couldn’t help myself” are not “involuntary” defenses. Involuntary acts are never blameworthy and voluntary acts are not necessarily blameworthy. To be blameworthy, voluntary acts must meet further criteria.

Excuses (duress, insanity, etc.) is a possible defense. When something is done accidentally or under duress, we try to defend by excusing the action. When the act is completely involuntary, however, there is no reason to excuse it as it wasn’t a human act.

Somnambulism (sleep-walking)

The Codgen Case – a woman killed her daughter with an axe while sleepwalking because she was dreaming that a Korean soldier was attacking her. She was acquitted as the act was not voluntary. They are normally released outright as in this case. Should they be institutionalized?

Epilepsy – Normally these actions are considered involuntary. In the People v. Dencia, Dencia was convicted because he knew he was prone to epileptic fits and still drove. He had a fit and lost control of the car, killing 4 people.

Culpability – ex roux – voluntary act or culpable omission. It must be something that is willed (voluntary) or through not doing something that you legally have a duty to do.

What imposes a duty to act?

Statute (for example to file your income taxes)
Relationship (special relationships – mother/father to child; husband to wife and vice versa, etc.)
Assumption of care and isolation from others (when you have some part in the need for care and the isolation)
Causation of peril

Duties of a bystander

Three states – Wisconsin, Minnesota, and Virginia – make it a crime not to help a person in peril who is a victim of a crime.

Omission – model penal code section 2

Statutes requiring that people be good Samaritans and “rescue” others from harm are existent in six states in one form or another – Minnesota, Rhode Island, Vermont, Hawaii, Florida, and Wisconsin. In all states, the crime is a misdemeanor and punishable by a fine and minor, if any, jail time.

Misprision (the deliberate concealment of one’s knowledge of a felony) has been abolished in all the states except Ohio and South Dakota which brought it back via statute. Most states require eye-witnesses to report a crime, and certain professions must report – such as doctors that suspect abuse and psychologists that know their patient is going to commit a violent crime.

In general, parents must

t must accompany a prohibited act to make it a crime. Did defendant intend, expect, or should have expected that his actions would produce certain consequences?

Model Penal Code Mens Rea

The older version is still widely used in which “willful” mens rea is still used and common law terms are also still upheld as a general way of determining between specific and general intent despite the fact that mens rea is element specific.

The new version of the model penal code uses four distinctions:

Purpose, Knowledge, Recklessness, Negligence.

Section 2.02 of the model penal code defines the general requirements of culpability



Attending circumstances

So, breaking and entering a dwelling at night with the purpose to commit a crime therein

Breaking and entering are conduct. Dwelling at night is attending circumstances. Etc.

So as to the elements of culpability:


Conduct or result – conscious object
Attending circumstances – awareness and belief


Conduct (purposely – you knew what you were doing) or attendant circumstances (knowingly – e.g. you didn’t intend to kill that person but you knew they would also be a victim) – awareness
Result – practically certain

Recklessness – Substantial and unjustifiable risk – gross deviation from reasonable person under the circumstances (did know better and acted anyway); created the risk

Negligence – Substantial and unjustifiable risk – gross deviation from reasonable person under the circumstances (should have known better)