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Criminal Law
South Texas College of Law Houston
Corn, Geoffrey S.

Criminal law can be split into crimes (what makes something a crime) and defenses (legal justification or excuse)
What is a crime?
1.       Was law violated?
2.       If law was violated, was there legal justification? (for example, self-defense). Justification means crime did not happen. 
3.       If there was not legal justification, was there a legal excuse? (insanity, intoxication, etc.). Excuse means crime happened, but he will be excused from the liability.
What makes something a crime? (Queen v. Dudley)
1.       Actus Reus
2.       Mens Rea 
3.       Concurrence of the act in the mental state
4.       Causation
Retributivism v. Utilitarian view (read in Understanding Criminal Law)
o        Retributivism – punishment fit the crime (more predominant in modern jurisdiction)
·         Under a retributive theory of penal law, a convicted defendant is punished simply because he deserves it. There is no exterior motive such as deterring others from crime or protecting society – here the goal is to make the defendant suffer in order to pay for his crime. Retributive theory assigns punishment on a proportional basis so that crimes that cause greater harm or are committed with a higher degree of culpability (e.g., intentional versus negligent) receive more severe punishment than lesser criminal activity.
o        Utilitarianism – punishment should fit the criminal
·         Deterrence – The utilitarian theory is essentially one of deterrence – punishment is justifiable if, but only if, it is expected to result in a reduction of crime. Punishment must be proportional to the crime, i.e., that punishment be inflicted in the amount required (but no more than is required) to satisfy utilitarian crime prevention goals.
·         Utilitarians consider the effect of a form of punishment in terms of both general deterrence and specific (or individual) deterrence. When the goal is general deterrence, punishment is imposed in order to dissuade the community at large to forego criminal conduct in the future. When the goal is specific deterrence, punishment is meant to deter future misconduct by an individual defendant by both preventing him from committing crimes against society during the period of his incarceration (incapacitation), and reinforcing to him the consequences of future crimes (intimidation).
Proof in our system of law:
                                 i.            Proof Beyond the Reasonable Doubt is the highest burden of proof (enough to rule out every other fair and rational defense theory)
                                                       a.            Presumptions
                                                       b.            Inferences
                                ii.            Clear & Convincing
                              iii.            Preponderance (more like than not, 51% probability)
Fair Warning & Vagueness (from Duke)
Ex Post Facto & Due Process Clauses (of the Constitution):
1.       New legislation cannot apply retroactively (ex post facto)
2.       The judiciary cannot make common law retroactive (DP)
3.       There must be notice and fair warning
-judges cannot convict someone for something that has never been considered illegal before, though some jurisdictions allow prospective decisions
-there is a ton of common law made all the time because it’s statutory interpretation
Common Law v. Statutory Theory:
Checks and balances separate the two systems. The rationale is Principal of Legality – there is no crime without pre-existing law (issue of notice), gives courts too much power to interpret.
Principle of Legality: courts cannot create crime
Void for Vagueness: legislature cannot create laws that are too vague for courts to interpret
Functions of the Vagueness Doctrine:
1.       Fair Notice
2.       Concern that lawyers/judges/police will enforce it discriminately
3.       Over-breadth is also a problem
Commonwealth v. Mochan:
§         He behavior deserved to be punished, even though this specific behavior was not mentioned in the statute, common law was sufficiently broad
Interpretation of the Statute:
In re Banks(1978, NC Supreme Court, n. 5. p. 98)
(Peeping Tom case)
a.       Is the NC peeping Tom statute unconstitutionally vague? No
b.       Intent of the legislature controls the interpretation
c.        The statute could be read to include lawful behavior
d.       Vagueness is a problem because then there is fair warning problem: people don’t know what behavior is lawful or unlawful
e.        The Statute does not have to be exactly precise (impossible), but must be precise enough to communicate what is illegal to a person of ordinary intelligence (have to give some standard of guilt)
f.        This statute is ok because it requires wrongful intent, unlike other states’ statutes
g.        State brings the case to the appellate court because they claim the trial judge was wrong on law. By law though, usually when government loses, it is not allowed to appeal (except when it argues the validity of law itself). *Note: Misdemeanor allows for confinement of 1 year or less, if more, then it’s a felony.
h.       When statute covers more than it should, it is generalized as overbroad. In Banks trial court established that G.S.14-202 was too vague and let Banks go. Prosecution (State) appealed and the Supreme Court of NC reversed the judgment and reinstated the charge because the law is constitutionally clear (not vague) and narrow enough to give fair notice.
Lenity Rule (of interpretation, “Last Resort” Doctrine, after you exhaust all other options): where the statute is ambiguous, the default is favor the accused. Tie goes to the defendant!!!
In Boyce Motor Lines v. US it was held that statute has to provide “no more than the reasonable degree of certainty”.
Three basic challenges to the statute:
·         fair notice (reasonable degree of certainty), we cannot predict every possible degree of violation
·         meaningful standard for the enforcement of the law itself (for police, prosecutors, and the judge on a bench trial or the jury)…
·         does not improperly interfere with constitutionally granted rights (example, loitering), does not prohibit things that are legal.
*Note: persuasive authority (it is not binding though) something like a decision from a court of the same authority
Statutory Interpretation of an Act:
US v. Foster(1998, 9th Cir., n. 6, p. 111)
o        gun in the back of the pick-up case, conviction for carrying reversed
o        what does “carry” include?
o        though reasonable minds could differ, favoring narrower interpretation because the legislature uses “transport” in other places and there must be a difference
o        to carry, it has to be at hand
o        this is a big deal: remember federal sentencing guidelines (now probably a thing of the past)
When the court interprets the statute, they will look at:
·         plain language (not black and white, some other aspects have to be looked at)
·         prior interpretations
·         internal reconciliation
·         purpose of the statute (to deter the use of guns means “use” of guns, not carrying them around).
Foster opinion makes it harder to understand the purpose
Every statute in every jurisdiction requires a voluntary act in order for there to be crime
otherwise we’d live in a Minority Report world
Volition separates involuntary from voluntary acts
seems wrong to hold people accountable for what they can’t control AND there is no deterrent effect
Martin v. State(1944, AL Court of Appeals, n. 7. p. 122)
can’t be convicted of drunkenness in a public place if the police forcibly put you there
*Duke note: this is not a voluntary act because the statute read “appeared” – it could have been different if it said “found”
he didn’t voluntarily “appear”
To prove that he is guilty one needs to prove that:
he was drunk
he was in public place
he was manifesting his drunkenness by boisterous and indecent conduct
one or more people have to be present
But volition has to be present to satisfy all the elements of the crime. The act (actus) in the sense of criminal law is more than just physical action. It is physical act/omission plus volition/will. This is not a defense, justification, or an excuse for Martin. Martin is saying that there was no criminal act at all and he cannot be punished. Reus is connected to social harm, is a result of the actus portion.
Under Common Law:
·         Act is PHYSICAL ACT + VOLITION
·         Time Framing – is connected to actus reus, putting yourself voluntarily into the situation where the social harm is more possible expands the timeframe of the crime (being drunk outside the bar v. being drunk at home)
·         If prohibited result of the statute is drunken disorder in public, then getting drunk inside of his house falls outside of the time frame of the statute
·         Mens rea is bases on factual determination, in this case there was no mens rea to be boisterous in public
·         “Act” – An act involves physical behavior. It does not include the mental processes of planning or thinking about the physical act that gives rise to the criminal activity (such is the domain of mens rea).
·         “Voluntary” – In the context of actus reus, “voluntary” may be defined simply as any volitional movement. Habitual conduct – even if the defendant is unaware of what he is doing at the time – may still be deemed voluntary. Acts deemed involuntary may include: spasms, seizures, and bodily movements while unconscious or asleep.
Under Model Penal Code (2.01):
What are NOT voluntary acts?
1.       reflex or convulsion
2.       movement while unconscious or asleep
3.       conduct done during hypnosis, hypnotic suggestion
4.       Any other movement not at the determination of the actor, either conscious or habitual (would thus include conditioned response, but not ordinary “habit”)
Model Penal Code – Similar to the common law, MPC § 2.01 requires that criminal conduct include a voluntary act. It does not define the term “voluntary,” but comments list bodily movements that are involuntary: reflexes, convulsions, conduct during unconsciousness, sleep, or due to hypnosis, as well as any conduct that “is not a product of the effort or determination of the defendant, either conscious or habitual.” Excluded from the requirement that the act be voluntary are offenses that constitute a “violation” [§2.05], defined as an offense for which the maximum penalty is a fine or civil penalty.
People v. Decina:
Decina was charged with “operating a vehicle in a reckless and culpably negligent manner, causing the death of four person”. The defendant had an epileptic seizure. Defense is that the seizure was “involuntary”. The response is that his decision to drive was the crime in itself, Decina’s conduct in itself creates risk of social harm. Timeframe was different from Martin.
·         epileptic driving case, conviction overturned (for other reasons – still guilty of crime)
·         he drove knowing he was susceptible to seizures at any moment
·         punishing him for the conduct of driving with the possibility of seizure
State v. Utter (the drunk man who stabbed his son and claimed it was a conditioned response, charged with 2nd degree murder , conviction affirmed):
1.       Was the court in error to tell the jury to disregard the evidence on conditioned response? YES, if the jury found that there was a conditioned response, then that would be a full defense because it’s not a voluntary act
*Note: drunkenness doesn’t matter, usually not a defense if you did it voluntarily
2.       Should the conviction be overturned? NO, because there was not enough evidence (no one knew what happened in the room pf drunks) for a reasonable jury to find that there was a conditioned response
Jury nullification – jury applies facts from the outside the case (like being a devoted father in this case) to the case and uses it as defense. Utter is guilty of a crime, but we (defense) want to appeal to your emotions. Is it just or fair to convict him of murder?
If the conduct is determined to be involuntary, then it is a complete defense, he is not guilty, he must be acquitted.
For the purpose of actus reus in criminal law, there must be physical act with volition!!! There is a mental element within actus reus itself. Mens rea is the actor’s state of mind regarding social harm (purpose, knowledge, known as intent).
Actus Reus is voluntary act that causes social harm.
Example:   live-in boyfriend is charged with murder of a child killed by his mother. He is a de facto father and that imposes legal duty on him. Omission is a failure to do something that you were obligated to do. Elements of murder are present:
– Actus reus – Unlawful killing
– Mens rea – Purpose/knowledge
Common Law – Subject to a few exceptions, a person has no legal duty to act in order to prevent harm to another.The criminal law distinguishes between an act that affirmatively causes harm, and the failure of a bystander to take measures to prevent harm.
Model Penal Code – The Model Penal Code is consistent with the common law regarding omissions. Liability based on an omission may be found in two circumstances: (1) if the law defining the offense provides for it; or (2) if the duty to act is “otherwise imposed by law.” [MPC § 2.01(3)(b)] The latter category incorporates duties arising under civil law, such as torts or contract law.
Barber v. Superior Court (removal from life-support case, murder charges dismissed):
this case turned on the fact that removal from life support was an omission of medical care, NOT an act (then it would be euthanasia); murder require

en of proof from the government to a defendant
·         Rebuttable presumption – means that that the defense has to rebut it, but not the prosecution. Gives an advantage to the prosecution, they start with presumption that have prevailed (you are starting from the perception that it is right). Therefore, such an instruction violates the Due Process Clause of Constitution. Presumption assumes that you start with something that is true. Assume it is right unless defendant shows that it is wrong.
·         Inference is permissive! It does not shift the burden of proof, it is an option. The jury on its own applies its common sense and a judge is allowed to inform the jurors that they may, but need not, draw such an inference. Inferences are drawn from the circumstances and facts that have been established. Inference is very significant in proof of intent.
Model Penal Code Approach
Model Penal Code § 2.02(1) provides that, except in the case of offenses characterized as “violations,”a person may not be convicted of an offense unless “he acted purposely, knowingly, recklessly or negligently, as the law may require, with respect to each material element of the offense.” The Code requires the prosecution to prove that the defendant committed the actus reus of the offense—in fact, each ingredient of the offense—with a culpable state of mind, as set out in the specific statute.
Thus the MPC:
o        eschews the “culpability” meaning of “mens rea”;
o        discards the common law distinction between “general intent” and “specific intent”;
o        limits mens rea to four terms: “purposely”; “knowingly”; “recklessly”; and “negligently”;
o        requires application of mens rea to every material element of a crime, including affirmative defenses
2.02(2) (n. 13, p. 993):
Purpose: “conscious object” to engage in such conduct or to cause such a result
-for attendant circumstances, awareness or hope that they exist
– wants something to happen
-conduct crimes: he is aware of his conduct and attendant circumstances
-knows that there is substantially certain probability that something is going to (happen (almost positive that result would happen)
-result crime: aware that it is “practically certain” that his conduct will cause result
Recklessness: “conscious disregard of a substantial and unjustifiable risk” that it exists or that conduct will cause it
-“nature and purpose of the actor’s conduct and the circumstances know to him” . . . gross deviation from standard of conduct of a law-abiding person “in the actor’s situation”
-knows there is a risk and disregards it
Negligence: “should be aware of a substantial and unjustifiable risk” that it exists or conduct will cause it
-failure to perceive is, considering nature and purpose of conduct and the circumstances known to him, gross deviation from standard of care of a reasonable person in the actor’s situation
-reasonably prudent person standard, which is not subjective, but objective
*Note: some elements of crimes are strict liability (such as age in statutory rape)
o        A-C are all united by SUBJECTIVE KNOWLEDGE!!! Negligence is objective!!!
o        Lack of knowledge is not a defense!
o        Defense would want as much of subjective slant on negligence as possible, prosecution would want it objective. 
o        When the elements are identified, it related to the material element of the offense
o        If the mens rea is identified at the beginning of the statute, it is applied to all material elements of the offense, unless contrary purpose is expressly identified
US v. Morris:
·         What does prosecution want to prove v. what defense claims needs to be proven
·         Why would it be reasonable to infer that he intended the harm if he did everything to prevent it from happening (defense will argue that the inference is weak)? 
·         Does “intentional” apply both to “access” and to “damage” (defense argues yes, prosecution argues that it has to prove ONLY that “intentional” applies to “access”)?
·         Prosecution wins, it is an exemplary case of statutory interpretation
·         If nothing is identified, can you convince someone on negligence? No!!!
·         The default setting when the minimum culpability is not established in the statute is recklessness, not negligence (MPC 2.02(3))
Example of statutory interpretation:
Elements of robbery:
·         Theft
·         Taking
·         Someone else’s property
·         With intent to deprive
·         With Infliction of serious bodily injuries
Hard to say if it is general or specific. Because the statute does not identify the minimum standards of culpability, the minimum requirement is recklessness
Willful Blindness
State v. Nations (1984, MO Court of Appeals, n. 15, p. 157)
-underage stripper, willful blindness case
-Missouri did not adopt the notion or willful blindness standard, in Missouri knowledge is actual knowledge
o        Missouri might be an exception in this case
o        the statute required knowledge, and only reckless at best
-Willful blindness – law transforms lack of knowledge into knowledge for the purposes of culpability if he knowingly closes his eyes to the requisite facts
-Test of “willful blindness”:
·         Defendant must be aware of high probability of the truth of the fact in issue
·         There must be some evidence of deliberate attempt to avoid confirming the fact
·          The individual cannot genuinely believe that the fact does not exist