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Criminal Law
Rutgers University, Newark School of Law
Francione, Gary L.

Chapter One
Introduction: Setting The Stage
What is the difference between crime and civil law? How does a case go to trail?
The condemnation of the community.
The presumption of innocence requires the “beyond a reasonable doubt” standard of guilt.
Owens v. State- 13 Beyond a reasonable doubt. (Burden of proof)
State v. Ragland- 19 Juries need to give out. (Jury Nullification)
Chapter Two
Principles of Punishment
What purpose does punishment serve? How do we know?
A “just” punishment should:
1) Protect society,
2) Punish the defendant for wrongdoing,
3) Encourage the defendant to be good in the future,
4) Deter other crimes,
5) Incapacitate the defendant,
6) Make restitution for the victim, and
7) Be comparable to punishments for similar crimes
Think, “Does the punishment fit the crime? Why, how do we know?”
Answer is based on: Utilitarianism (pp. 34,35) and Retribution (pp. 38), they are the leading philosophies on criminal justice. Simply put “Determent vs. Moral Justice.”
The Queen v. Dudley and Stephens 48- Cannibals rot.
People v. Superior Court (Du) 53 – Shop lifter shot.
United States v. Gementera 59- Bank robbers caught.
Coker v. Georgia 69- Rapist caught not.
Ewing v. California 76- Supreme court strike a crackpot.
Modern Role of Criminal Statues 
What roles do of statutes play in the judicial system?
The Principle of Legality, Void for Vagueness, and the Rule of strict construction.
Principle of Legality
The essence of the principle of legality is the idea of nulle poena sine lege: “no crime without law”, meaning in particular “no crime without preexisting law.” All statutes trump common law rules. Common law is no longer controlling, but it does have authority and influence.
Void for Vagueness
The doctrine of void-for-vagueness says that legislatures have to explain what they mean and not leave all the work up to the courts.
The Rule of Strict Construction
The rule of strict construction says that if a criminal law is uncertain, it should be decided with a slant toward the defendant.
Commonwealth v. Mochan 88- Phone harasser jailed. (diss.)
Keeler v. Superior Court 91 – Dead Baby railed.
In Re Banks 101 – Peeping Tom nailed.
City of Chicago v. Morales 109 – gang members bailed.
United States v. Foster 116 – gun charge failed.
Chapter 4
A.    Voluntary Act
Martin v. State (1944)
Defendant was arrested in his home and the police dragged him outside and arrested him for public intoxication.
Issue: Whether defendant voluntarily left his home thus having the actus reus of the crime for which he was charged.
Rule: In order to be found guilty of a crime, one must have the actus reus. D did not voluntarily leave his home; the police took him out.
State v. Utter (1971)
Defendant, a combat infantryman, killed his son after drinking an excessive amount of alcohol.
Issue: Whether defendant did not commit the act of homicide because he claims he involuntarily reacted b/c of a conditioned response.
Rule: If a person is in fact unconscious at the time he commits an act, which would otherwise be criminal, he is not responsible therefore. The absence of consciousness not only precludes the existence of any specific mental state, but also excludes the possibility of a voluntary act without which there can be no criminal liability. However, when drugs or alcohol voluntarily induces the state of unconsciousness, then it’s not a complete defense.
Attendant circumstance – part of the actus reus – a condition which must be present, in conjunction with the prohibited conduct or result, in order to constitute the crime.
B.    Omissions (“Negative Acts”)
1.     General Principles
People v. Beardsley (1907)
Defendant was having an affair with morphine taking woman who overdosed in his presence and he did not take action to prevent her death.
Issue: Whether defendant was under a legal duty to deceased to take all reasonable and proper efforts to save her life.
Rule: If a person who sustains to another the legal relation of protector, as husband to wife, parent to child, etc., knowing such person to be in peril of life, willfully or negligently fails to make such reasonable and proper efforts to rescue him without jeopardizing own life, he is guilty of manslaughter at least, if the person dies.
Four situations where a failure to act may breach a legal duty
·         Where statute imposes duty
·         Certain status relationships (parent – child, husband – wife)
·         Contractual duties (lifeguard)
·         Voluntarily assumed care of another that precludes them from getting help from someone else
2.        Distinguishing Acts from Omissions
Barber v. Superior Court (1983)
Doctors were charged with murder for taking brain dead patient off life support and IV.
Issue: Whether the doctors committed murder by a failure to act (to continue life support and IV) b/c they owed patient a legal duty to continue care.
Rule: The doctor’s omission to continue treatment under the circumstances, though intentional and with knowledge that the patient would die, was not an unlawful failure to perform a legal duty. 
Chapter 5
A.          Nature of “Mens Rea”
United States v. Cordoba-Hincapie (1993)
Mens rea is the morally culpable state of mind that is a necessary element of the crime.
Regina v. Cunningham (1957)
Defendant stole a gas tank from a home and failed to turn off the gas valve and the victim of the home died from toxic poisoning.
Issue: Whether defendant acted maliciously with reference to the harm caused to the victim when he removed the gas tank and failed to turn off the valve.
Rule: Malice must be taken not in the old vague sense of wickedness in general, but as requiring either (i) an actual intention to do the particular kind of harm that in fact was done, or (ii) recklessness as to whether such harm should occur or not. It is neither limited to, nor does it indeed require, any ill will towards the person injured.
B.       General Issues in Proving Culpability
1.     “Intent” – includes not only results that are the conscious object of the actor but also those that the actor knows are virtually certain to occur.
People v. Conley (1989)
Drunken kids at a high school party. Defendant struck victim in the face w/ wine bottle causing permanent injury to victim’s lip.
Issue: Whether the defendant caused, beyond a reasonable doubt, permanent disability to the victim and whether he intended to cause the injury.
Rule: Aggravated battery is intentionally or knowingly causing great bodily harm or permanent disfigurement. As for defendant’s intention – that the result of the action will be accomplished by doing the act and that d was sufficiently aware the harm was practically certain to be caused.
Transferred intent – assigns criminal liability to a defendant who attempts to kill one person but accidentally kills another instead. Thomas prefers that we argue the actual crime instead of transferred intent.
General intent – if no particular mental state is set out in the definition of the crime the prosecutor need only prove that the actus reus of the offense was performed in a morally blameworthy manner.
Specific intent – is any offense in which a particular mental state is set out expressly in the definition of the crime. 
The Model Penal Code Approach
Section 2.02 of the MPC sets our four levels of mens rea, purposely, knowingly, recklessly and negligently.
Purposely – a person acts purposely with respect to a material element of an offense when: 
a.        if the element involves the nature of his conduct or a result thereof, it is his conscious object to engage in conduct of that nature or to cause such a result; and
b.        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 – A person acts knowingly with respect to a material element of an offense when: 
c.        if the element involves the nature of his conduct or the attendant circumstances, he is aware that his conduct is of that nature or that such circumstances exist, and
d.        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.
Recklessly – a person acts recklessly with respect to a material element of an offense when he consciously disregards a substantial and unjustifiable risk that the material element exists or will result from his conduct. The risk must be of such a nature and degree that, considering the nature and purpose of the actor’s conduct and the circumstances known to him, its disregard involves a gross deviation from the standard of conduct that a law-abiding person would observe in the actor’s situation.
Negligently – A person acts negligently with respect to a material element of an offense when he should be aware of a substantial and unjustifiable risk that the material element exists or will result from his conduct. The risk must be of such nature and degree that the actor’s failure to perceive it, considering the nature and purpose of his conduct and the circumstances known to him, involves a gross deviation from the standard of care that a reasonable person would observe in the actor’s situation.
“Knowledge” of Attendant Circumstances
State v. Nations (1984)
D owns a disco where a scantily clad 16 year old was dancing in violation of the child endangering statute.
Issue: Whether the D had knowledge the female was under 17.
Rule: The Mo. Statute is violated if a person knowingly encourages a child…. The court held that the MPC definition of knowledge requires a probability of existence. Mo’s statute does not. Knowingly in Mo. does not include willful blindness – that would be reckless. Therefore, the state failed to prove that the D had the requisite intent to endanger the welfare of a child.
Problems in Statutory Interpretation
United States v. Morris (1991)
D sent a computer worm thru internet that damaged Federal interest computers in violation of 18 U.S.C. 1030.
Issue: Whether D intended to not only access federal interest computers but to prevent authorized use of info and thereby cause loss.
Rule: In order to convict D of a crime, must prove mens rea. D claims that the State needed to prove that he intended the access and the damage. However, the court reviewed the legislative history to read Congress’s intent that it only required that the D intentionally accessed a federal interest computer. It need not be prove that D intended the prevention of use and damage. When reviewing statutes for meaning look at punctuation, plain meaning and verb modifications.
United States v. Cordoba-Hincapie (1993)
Mens rea remains a fundamental requirement in criminal law. However, it is not necessary to prove in strict liability offenses. 
Public welfare offenses – the most common exception to mens rea attaches criminal liability without regard to fault involving minor violations of liquor laws, pure food laws, drug laws, motor vehicle and traffic regulations, sanitary, building and factory laws.
Mens rea is probably not required when a small fine violation is involved.
Example – statutory rape.
If an offense is strict liability there is no mens rea to negate and there is no basis for exculpation on the basis of mistake or ignorance of fact or laws.
Staples v. United States (1994)
D was charged w/ violating 26 USC 5801-72, failure to register an automatic weapon. D claims that he thought the weapon was a semi and that he didn’t make the modification.
Issue: Whether the statute requires proof D knew the characteristics of the weapon.
Rule: Generally, mens rea must be present even when it’s silent in the statute. However, in those cases, it cannot be said that mens rea need not be present unless the statutory intent is known. These offenses generally involve that D knew he was dealing with a dangerous device related to public welfare. And in this case, the harsh penalty of 10yrs imprisonment could not have meant that Congress eliminated the requirement of mens rea.
Garnett v. State (1993)
D was a 20yr old retarded man who had sex with 13 yr old female whom he believed was 16. He was charged with statutory rape.
Issue: Whether mens rea is written in to the statutory rape statute.
Rule: The legislature intended that statutory rape be a strict liability offense – no mistake of age defense can apply. 
Mistake of Fact
People v. Navarro (1979)
D was charged w/ grand theft for stealing beams that he c

ide: Additional forms of homicide exist by statute in some states. Many states have created the crime of vehicular homicide (an unintentional death caused by the driver of a motor vehicle). Similarly, some states, and the MPC, have created the crime of “negligent homicide.” [230] People v. Eulo (1984)
D was convicted of manslaughter. He shot victim in head and victim was taken to hospital in unconscious state and placed of respirator. The victim was taken off respirator by family request.
Issue: Whether D’s conduct caused the victim’s death.
Rule: First the court had to determine when the victim’s death occurred. Death occurs when there is irreversible cessation of breathing and heartbeat or irreversible cessation of the entire brain’s functioning. If the doctor’s were correct in determining the victim’s death, then there was sufficient evidence for a jury to determine if the D caused the death. If the death was prematurely pronounced due to a doctor’s negligence, the subsequent procedures may have been a cause of death, but that negligence would not constitute a superseding cause of death relieving D of liability. However, if the doctors were grossly negligent or intended to prematurely pronounce death, the intervening medical procedure would interrupt the chain of causation and D would not be liable.
1.             Degrees of Murder: The Deliberation-Premeditation Formula
State v. Schrader (1982)
D went into gun shop to trade war souvenirs and got into argument with owner and stabbed him 51 times. D claims that he did not have the requisite premeditation for murder one.
Issue: Whether the state must prove that D premeditated the murder.
Rule: Premeditated was essentially “knowing” and “intentional” and courts have consistently recognized that the mental process necessary to constitute “willful, deliberate and premeditated” murder can be accomplished very quickly or even in the “twinkling of an eye.”  The mere existence of choice would justify an inference of premeditation.
Midgett v. State (1987)
D was convicted of murder one for the death of his son resulting from repeated abuse. Medical evidence determined child died of intra-abdominal hemorrhage. 
Issue: Whether the evidence was sufficient to show D’s premeditated and deliberated purpose to cause his son’s death.
Rule: Conviction of murder one requires premeditation and deliberation. Here, the evidence only supports that D intended not to kill his son but to further abuse him or that if he did intend to kill the child, the intent was developed in a drunken rage while disciplining the child. Neither supports a finding of premeditation or deliberation.
State v. Forrest (1987)
D was convicted of murder one after shooting his dying father in the head 4 times while in hospital.
Issue: Whether the evidence was sufficient to show premeditation and deliberation for murder one.
Rule: First-degree murder is the intentional and unlawful killing of a human being with malice and premeditation and deliberation. Things to consider to determine whether the killing was with premeditation and deliberation are (1) want of provocation on part of the deceased; (2) the conduct and statements of D before and after killing; (3) threats and declarations of the D before and during the course of the occurrence giving rise to the death of the deceased; (4) ill-will or previous difficulty b/w parties; (5) the dealing of lethal blows after deceased has been felled and rendered helpless; and (6) evidence that the killing was done in a brutal manner. 
2.             Manslaughter: “Heat of Passions” Killings
a.             Common Law Principles
Girouard v. State (1991)
D was convicted of second-degree murder of wife after an argument in which she taunted and provoked him.
Issue: Whether D could mitigate the murder charge down to manslaughter based on wife’s provocation.
Rule: The rule of provocation: (1) there must have been adequate provocation; (2) the killing must have been in the heat of passion; (3) it must have been a sudden heat of passion – that is, the killing must have followed the provocation before there had been a reasonable opportunity for the passion to cool; and (4) there must have been a causal connection b/w the provocation, the passion, and the fatal act. Words alone can never be provocation. Words must accompanied by conduct indicating a present intention and ability to cause the defendant bodily harm. 
b.             The Objective Standard: Who is the “Reasonable Man”?
In order of an intentional homicide to constitute manslaughter rather than murder, a defendant must have killed in response to provocation “calculated to inflame the passion of a reasonable man” or which “might render ordinary men, of fair average disposition, liable act rashly or without due deliberation or reflection, and from passion, rather than judgment.”
Director of Public Prosecutions v. Camplin (1978)
D, a 15-year old boy killed victim after D claimed he was sodomized and taunted.
Issue: Whether the provocation relied upon by D wa