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Criminal Law
South Texas College of Law Houston
Moses, Ray E.

Criminal Law I
Fall 2008


Criminal Law – study of crimes and the moral principles of criminal responsibility

A. Differences between a crime and a civil wrong
1. Crimes involve public law
a. Involves more than a private injury
b. Violations of public law cause a social harm
– injury suffered involves a breach and violation of the public rights and duties, due to the whole community, considered as a community, in its social aggregate capacity
2. Those convicted of a crime are punished
a. Punishment lies in the criminal conviction itself, not the hardship that follows
b. Distinguishing characteristic between criminal and civil punishment is the societal condemnation and stigma that accompanies a criminal conviction
B. Classifications of crimes
1. Under English common law
a. Felony – included a specific set of crimes for which punishment was death and for which one’s land and goods could be forfeited
– crimes included: felonious homicide, arson, mayhem, rape, robbery, larceny, burglary, prison escape and sodomy
b. Misdemeanor – all crimes not included in the felony basket
2. Under current law
a. Felony – generally, a crime punishable by death or imprisonment in a state prison
– MPC – divides felonies into “degrees” for sentencing purposes
– TPC – does not have degrees of felonies
b. Misdemeanor – generally, a crime punishable by a fine or incarceration in a local jail (or both)

Principles of Criminal Responsibility
– identify the point where it is fair to take a factual premise to a normative judgment
– go from the statement “D caused or assisted in causing a social harm” to “D should be punished for having caused or assisted in causing a social harm”

Sources of Criminal Law

Origins of Criminal Law
A. Common Law
1. Derivation of American common law
a. English law – largely derived from “judge-made” law (i.e. common law)
– definitions of crimes and rules of criminal responsibility came from the courts
b. Revisions – English law is the source, but American courts have made revisions such that there are now substantial differences between English and American common law
B. Criminal Statutes
1. Derived from legislative bodies
a. Belief that crimes should be defined by representatives of the people

Modern Role of Common Law
A. Reception Statutes
1. Recognition of common law offenses
a. Provide punishment where a common law offense has been committed and where there is no punishment provided in a statute
b. “Unwritten” law (i.e. common law) becomes a part of a state’s criminal law as it existed at the time of the reception statute’s adoption
2. Practical Application
a. Prosecution of common law offenses is rare in states that have reception statutes
b. Not able to prosecute for common law offenses unless there is a true gap in the statutory (codified) law
3. Issues in “reception states”
a. Can judges make new crimes from the common law offenses?
– general consensus is that courts may no longer make criminal offenses
b. Can judges abolish common law offenses?
B. Statutory Interpretation
1. Role of common law
a. Retains the power to define statutes and interpret their meaning where common law terms have been used in the statute
b. Acts as a “gap filler” where there is no evidence of a legislature’s intent behind a statute
C. Model Penal Code
1. Purpose
a. Created by the American Law Institute to inspire legislatures to take part in penal code reform
2. Impact
a. Not law in any jurisdiction
b. Stimulated penal reform in numerous states
c. Some legislatures have adopted a large part of it; others have adopted only parts

Mens Rea

General Principle
– generally, to be guilty of a crime, it must be proven that the act took place but also that the actor had the “guilty mind” (aka “mens rea”) to commit that crime

Definition of Mens Rea
A. Ambiguity
1. Difficulty in application
a. Mens rea is a difficult term to understand and apply given its general ambiguity
b. Began with a broad meaning and has developed a more narrow, refined meaning
B. Culpability Meaning (Broad)
1. Three broad definitions of mens rea
a. A general immorality of motive
b. A vicious will
c. An evil-meaning mind
2. Culpability meaning of mens rea
a. Committing an offense with a morally blameworthy state of mind
3. Application to criminal prosecution
a. Broad culpability application does not require one to prove that a person that commits a crime acted with a specific mental state
– i.e. intentionally, knowingly, recklessly or negligently
b. Common law offenses generally applied this type of approach
C. Elemental Meaning (Narrow)
1. Elemental definition
a. The particular mental state provided for in the definition of an offense
b. Possible to have a broad mens rea (culpability) but lack the narrow mens rea (elemental)

Rationale of the Mens Rea Requirement
A. Utilitarian Arguments
1. Deterrence
a. One cannot be deterred unless they appreciate the punishment that lies in store for his continued actions
b. If you do not have the requisite mental state, punishment will be ineffective because there won’t be any deterrence factor
2. Arguments against mens rea requirement
a. Even if one does not have the required mental state to deter that person, punishment could be useful in deterring others from the same conduct
b. Those that caused harm may be accident prone (and thus lack a mens rea) and still may need some sort of punishment to deter their actions
c. Mens rea is a difficult concept
– to convict someone, must prove every element of a crime, including mens rea
– possible that someone may have acted with the requisite mens rea and still get away with it because of the difficulty in proving it
– could send a message to other potential wrong-doers on how to get away with a crime
B. Retributive Arguments
1. Moral considerations
a. Purpose of crimes is to punish those that sought to commit them
b. It is morally unjust to punish those who lacked the mens rea to commit the offense (i.e. it occurred through an accident)
2. Nature of crimes and punishment
a. Crimes are public wrongs; punishment is a stigmatism against those that wronged the public
– it is not right to attach that stigmatism to one that commits an accident under the theory that the person did not seek to wrong the public

Frequently Used Mens Rea Terms
A. Intentionally
1. Definition

unding the “willful blindness” or “deliberate ignorance” factor
a. One does not need to take any action to be found guilty
– culpability is based on the failure to act
b. Risk convicting someone of negligent or reckless behavior
– negligence and recklessness does not get to the “knowingly” mens rea
4. Arguments in favor of the “willful blindness” or “deliberate ignorance” factor
a. Absolute knowledge is hard to come by in the real world
– using a narrow definition would reward people who are purposely ignorant in their investigation of a situation
b. A person who purposely acts in ignorance is as culpable as the person who commits the offence
5. Arguments against the “willful blindness” or “deliberate ignorance” factor
a. Even if willful blindness is morally equivalent to knowledge, it is not the same as saying willful blindness is knowledge
b. Principle of legality states that equivalent, but different, states of mind are insufficient to convict someone of a crime calling for a specific state of mind
C. Willfully
1. Definition hard to determine
a. At times, considered a synonym for “intentional”
– at other times, considered an act done with a bad purpose
b. Meaning must often be determined by examining legislative history behind the statute

D. Negligence and Recklessness
1. Overview
a. Four categories of risk-taking
i. Desirable or neutral risk-taking
ii. Civil liability risk-taking
iii. Criminally negligent risk-taking
iv. Reckless conduct
b. Lines between the risk-taking categories is blurred and unclear
2. Negligence
a. Definition – a deviation from the standard of care that a reasonable person would have observed in the actor’s situation
– this is an objective standard (note the “reasonable person” language)
b. Deviation from standard of care – occurs if the actor takes an unjustifiable risk or causing harm to another
c. Factors used to determine what the reasonable person would do
i. The gravity of harm that foreseeably would result from the defendant’s conduct;
ii. The probability that the foreseeable harm would occur; AND
iii. The burden (or loss) to the defendant for not engaging in the conduct
– third factor is simply evaluating the reason for engaging in the conduct
d. Algebraic formula of the three factors: Liability if B < P x L
– B = the burden to the defendant in not engaging in the activity
– P = probability of the harm occurring
– L = gravity of the injury to victim
e. Civil negligence v. Criminal negligence
i. Civil negligence generally only needs to show a deviation