Select Page

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

Outline for Professor Bergelson – Fall 2010 – Criminal Law

I. Structure of Criminal Justice System

Arrest (with or without a warrant)


Decision to charge strongly influenced by:

Strength of the evidence available to the prosecutor

Defendant’s criminal record

The attitude of the victim

Possibility of redress outside of the criminal justice system

Ex. Rehab or emotional help

Preliminary hearing – to determine if there was probable cause for the arrest

Misdemeanor – file a complaint

Felony – Felony either indicted by the grand jury or the prosecutor files an information (an accusation made on the authority of the prosecutor)

Arraignment and either put in a plea of guilty or non-guilty

If defendant pleas guilty they are sentenced

Reasons for Dismissal

The crime charged is not, in fact, a violation of the criminal law of the relevant jurisdiction

The facts alleged, even if true, do not constitute the crime charged

No jury could justifiably find the facts alleged on the basis of the evidence proffered at the preliminary hearing

II. Theories of Punishment

o Retributivism – (backward-looking) – punishment must generate some benefit greater than the pain and suffering caused by the punishment.

o Must match the severity – Punishment should exceed expectations (Community dislikes it)

o Utilitarianism – (forward-looking) – justifies punishment on the basis of good consequences it is expected to produce in the future. (Does not have to exceed the punishment; just has to work)

Deterrence – generally, increase in detection, arrest, and conviction rates are meant to decrease the likelihood of people committing crimes

General Deterrence – knowledge that punishment will follow crime deters people from committing crimes, thus reducing future violations of right and the unhappiness and insecurity they would cause (Shaming, t-shirts)

Individual Deterrence – actual imposition of punishment creates fear in the offender that if he repeats his act, he will be punished again (sex offender registry)

o United States v. Jackson – Court held that a statute allowing life without parole for robbery was valid because the statute reflects a judgment that career criminals who persist in possessing weapons should be dealt with more severely.

§ Facts: Defendant robbed two banks about thirty minutes after being released from prison.

Incapacitation – imprisonment, probation, parole, and the death penalty put convicted criminals out of general circulation and prevent persons of dangerous disposition from acting on their destructive tendencies

Social Cohesion – agreed-upon principle that wrongdoings deserve punishment because it outrages the morals of society.

Rehabilitation – past efforts at rehabilitation are considered mostly unsuccessful and take too long.

III. Defining Criminal Conduct

o Legality – in order to punish a person, the person must have HAD A CHANCE to know that he broke the law. The law must be on the books beforehand. You knew the law but you chose to break it.

o Keeler v. Superior Court –Broadening the definition of human being to include fetuses was considered a state legislature matter and a due process violation of law.

§ Fair warning is a constitutional prohibition of ex-post facto laws; defendant would not have foreseen that the judicial enlargement of homicide in Section 187 to include fetuses.

o Bouie v. City of Columbia (within Keeler) – Supreme Court thought it was unfair to have criminal statute applied retroactively to subject a person to criminal liability of past conduct. The effect is to deprive him of due process of law in the sense of “fair warning”

o Rogers V. Tennessee – Common Law criminal rules can be overruled if they are not unexpected and indefensible – thus not a violation of due process.

§ Facts: Rogers killed someone that died 15 months later. He was charged under the year and a day rule for homicide prosecution in Tennessee.

§ Supreme Court supported states decision to void the common law rule of a year and a day because it is clearly an outdated relic; Court claimed Ex Post Facto Clause does not apply to courts.

o Proportionality – Punishment matches the crime

o Ewing v. California – Three Strikes Laws are not cruel and unusual punishment.

§ The Eighth Amendment does not require strict proportionality between the crime and sentence; it only inquires into sentences that are grossly disproportionate.

§ The Court respects the policy decisions of states to punish harshly for repeat criminals.

o Culpability = Actus Reus + Mens Rea – Affirmative Defenses

(a) Actus Reus – physical or external part of the crime; Voluntary act that causes the social harm

§ Overt and Voluntary Conduct / Involuntary Acts

o Voluntary Acts – the actor chooses to perform that action.

§ Martin v. State – Each element of the act must be VOLUNTARY.

· Ct. held that the conduct was not of the actor’s choice.

· Facts: P was convicted of being drunk on a public highway… officers arrested him at his home and took him onto the highway where they charged him for public intoxication.

§ People v. Decina – Mental diseases might not be excuses for acts committed; they should still be voluntary acts. (Principal act set everything in motion -> they’re voluntary)

· Facts: Defendant kills pedestrians during epileptic seizure while driving. He knew that he had epilepsy but still took on the risk of driving.

o Involuntary Acts

§ People v. Newton – When one is unconscious NOT By voluntary intoxication / self-inducement, it can be a complete defense to a charge of criminal homicide.

· Δ in altercation w/ police. Δ shot in abdomen and claims he lost consciousness before killed police officer. Ct finds that unconsciousness under CA penal code is complete defense. **Note: doesn’t claim accident b/c felony murder rule.

Model Penal Code’s definition of Voluntary / Involuntary Act:

§ MPC §2.01(2) defines acts that it considers involuntary (again, largely drawn from common law)

· Includes: (1) reflex or convulsion, (2) bodily movement during unconsciousness or sleep, (3) conduct during hypnosis (or resulting from a hypnotic session), and (4) (catch-all) a bodily movement that otherwise is not a product of the effort or determination of the actor (can argue mental defect puts act into this category; also irresponsible actor)

· Only punish voluntary acts b/c: (1) we feel safer punishing only people who choose; (2) punishing choice respects people’s ability to choose.

o Omissions – failure to act may be a breach of legal duty if duty is established by

Common Law

1. Criminal statute

2. Relationship status (ie: parent/child, master/apprentice, doctor/patient, spousal)… (no duty to save your siblings, own parents, casual relationships)

3. Contractual duty to care for another

4. When one voluntarily assumed the care of another, thus preventing others from helping

5. Creation of peril (example: drug use w/ another could be considered creating risk of harm to another; if you hit someone in a car and someone got injured, you have to help that person)

· Family Members – Siblings owe no duty to each other, parents owe no duty to their adult children, and adult children owe no duty to their parents.

· De facto family members –

o People v. Beardsley – Defendant had no legal duty to an acquaintance that one recently met.

§ Facts – Married man spent a weekend at his home with an acquaintance while his wife was out of town. The acquaintance took a fatal dose of morphine tablets; Beardsley did not call for help and well, she died.

§ People v. Carroll – Stepmother held for ch

uled that criminal negligence was favored in determining mens rea over the common law torts negligence.

· Facts: Defendant cut his 7 year old nephew’s neck with a knife during altercation and was convicted of child abuse under a statute defining that offense as including “negligently causing a child to be placed in a situation that may endanger the child’s life or death.

· MPC § 2.02 (Page 1082) gives us four categories – applies an elemental standard and ignores terms such as willfulness, malice, etc. It applies the terms to each material element of an offense.

· Purpose- This requires a conscious objective. “I want to hurt Mrs. Wade by administering poison.”

· You care about the conduct / result and are aware of the attendant circumstances (background facts).

· Knowledge- does not require an objective, but instead requires the defendant be practically certain the bad consequence will transpire from her actions. “If I rip the gas meter off the wall for the money, it is practically certain I will administer poison to her.” (> 90%) (also terrorist and air force one; know will kill other, not purpose, but blow it up anyway)

· You are aware of the conduct and attendant circumstances, however in terms of result, you’re only practically certain.

· Recklessness- grossly deviate from standard of care reasonable person would do in terms of risk (> than torts standard); risk must be unjustifiable and substantial (< than practically certain); must have knowledge of risk. You could call this “conscious risk creation.” – “I know there is a chance that this will poison Mrs. Wade”

· conscious disregard of substantial and unjustifiable risk

· Negligence- The defendant is not aware of the substantial and unjustified risk, but should be. It is also a gross deviation from the standard of care that a person would normally exercise; **Common law and MPC differ on diff. b/t reckless and negligent; in common law, negligence often involves lower degree of risk; in MPC, only difference is in awareness

· should be aware of substantial and unjustifiable risk – subjective moral culpability

· Subsection 3 Offenses Silent as to Culpability – provides that if not prescribed by law, it is established if a person acted purposely, knowingly, or recklessly (at least you’ll be prosecuted under the definition of reckless)

· Subsection 4 – Prescribed culpability requirement applies to all material elements – says if a statute defining an offense prescribes the kind of culpability that is sufficient for the commission of the offense, without distinguishing among the material elements thereof, the court will interpret the culpability provision to apply to all elements of the offense UNLESS a contrary purpose plainly appears.

· Subsection 5 – Substitutes for Negligence, Recklessness and Knowledge – higher elements on the culpability hierarchy already establish the mens rea for lower elements – i.e. purpose, knowingly, reckless already proved negligence.

· Subsection 7 – Requirement of Knowledge Satisfied by Knowledge of High Probability – knowledge of existence of particular fact is an element of offense; such knowledge is established if a person is aware of high probability of its existence unless he actually believes that it does not exist.

· Subsection 8 – Common law standard of willfulness is satisfied by acting knowingly .