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Criminal Law
South Texas College of Law Houston
Wheeler, Michael E.

Common law developed with king’s messengers going into villages & finding violations based on violations of common sense & imposing sanctions (unwritten law)
Most felonies punished by death; no recidivism (repeat offenders)
New federalism: if a state were to extend greater rights under state constitution and would be able to tell you up front, basing rights on state constitution & not federal constitution, Supreme Court can’t touch them
Previously: Common law has king’s messengers going out & they’d listen to complaints in which they decided what would be best for society (unwritten law)
Today, legislative function to create unwritten laws
Unrestricted discretion to make conduct criminal, even when come to extent of making things people would not normally believe
How absolute is legislative power? Not absolute, there are controls in Federal & state constitutions; Controls are found primarily in federal and state constitutions & limit discretion legislatures have in making laws

Could a criminal law that is written, upheld, that does limit/violate one’s right to privacy? Yes, must find a compelling state interest & statute must be narrowly drawn (can’t be accomplished by less restrictive means); must have rational basis

Crime requires: mens rea, actus reus, concurrence, causation:

Act does not make someone guilty unless mind is guilty
Common law (what we’ll be tested on) broke crimes into three categories regarding mental state:

General intent crimes – someone doing voluntary act which is prohibited or failing to act while under legal duty to do so & can do follow duty
Specific intent crimes – burglary and larceny require specific intent to commit felony
Criminal negligence – something less than voluntary doing act

Use reasonable person standard to determine negligence as mens rea; To impose criminal sanctions, can consider that must have substantial deviation from that of a reasonable person under like circumstances

Criminal Negligence
Facts: Chiropractors that practiced natural treatment convicted of manslaughter. Didn’t intend to kill patient.

Two component parts that must be manipulated to get you some resolution as to how these guys are found accountable for crimes?

1. Unreasonable risk – objective standard used to determine
2. Actor’s awareness of unreasonable risk: subjective standard used to determine

How do we know when a risk becomes that which is unreasonable?

Standard of awareness of that risk by which one is judged
Risk of harm

Unreasonable risk has high degree of possibility for death of serious injury

Facts: D convicted of criminal homicide in Oregon

Recklessness: person aware of and consciously disregards a substantial and

unjustifiable risk that the result will occur or that the circumstance exists.
Disregard thereof constitutes a gross deviation from the standard of care that a
reasonable person would observe in the situation

Subjective standard: disregard risk & grossly deviate from standard of car that reasonable person would observe
Judging risk factor by objective awareness of risk (person knew) – reasonable person test.

Facts: D meant to shoot one gu

ositive side of malice: presence of either (a) actual intent to cause the particular harm which is produced or harm of the same general nature, or (b) the wanton and willful doing of an act with awareness of a plain and strong likelihood that such harm may result

Facts: Set fire to his own barn (no more than misdemeanor) & cause burning of another person’s barn (arson)

Mental state for arson is malice:
Negative Side: Satisfied
Positive Side:

Laughlin did not have intent to create harm to other barn
He should have realized that place next to him had likelihood of being burned down – this component satisfied & MALICE proven, so mens rea component established

Facts: Convicted of mayhem, which requires malice as mental component. Threw a brick at another’s eye & blinded him.

In mayhem, you have done something that made someone less able to defend themselves


Must be subjective awareness on part of defendant to hold them accountable.
Don’t need to convince jury that this guy had positive knowledge

Can use objective knowledge as basis of subjective analysis…Can say to jury: Look @ person’s demeanor, character & is there anything to suggest he’s not a reasonable person? If he is, subjectively, shouldn’t he have known this?