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

Criminal Law
Fall 2009
Professor Corn
What is criminal?
Societal condemnation – wrong which society morally/socially condemns; societal (criminal) v. personal (torts)
Reflected in law – an act is not criminal unless prohibited by law; State brings action and must prove guilt BRD. Tort – individual brings action.
Construct of a crime
Actus reus – (AR) voluntary act/product of the actor’s effort, not a reflex, convulsion, hypnotic, or unconscious act; produces the prohibited result
Mens rea – (MR) culpable mental state; mindset of actor relative to the act, not his motive (why); generally proved circumstantially
                                                               i.      MPC– 4 levels: purposely, knowingly, recklessly, negligently
Attendant Circumstances– other elements that must be proved to establish prohibited result (e.g., human being, dwelling house, age)
Concurrence– (C) The voluntary act must produce the prohibited result when the actor has the required culpable mental state. (causation)
Prohibited result – (PR) the result prohibited by the law
Causation AC/PC
                                                               i.      Actual cause & proximate (legal) cause of prohibited result
Defenses Generally
Justification – the act is not criminal under the circumstances; no crime was committed;
                                                               i.      elements of a justification defense: necessity, proportionality, reasonable belief (self defense, defense of others/property, necessity, duress)
Excuse – the act was criminal but, under the circumstances, the actor’s conduct is excused.
                                                               i.      Insanity, diminished capacity, intoxication
AR, MR, C, PR reflected in law
CL – original source, now used to interpret statutes that do not define every aspect of a crime in great detail
Statute – replaced CL for defining crimes; statutes effective only on date effective forward (ex post facto protection)
Types of crimes
Malum in se – crime that is an inherently evil act (murder, arson, rape, mayhem, robbery)
Malum prohibitum– act that is a crime because prohibited by statute
Proof BRD (Beyond a Reasonable Doubt)
Elements of a crime define what the government has to prove (AR, MR, C, PR)
Each material element must be supported by evidence that establishes proof BRD
Prosecution presents circumstantial evidence to allow jury to make inferences.
Inferences help a jury decide if it is reasonable to conclude the State proved an element.
Inferences are conclusions drawn from evidence and are permissive, not mandatory.
A presumption is a mandatory starting conclusion that may be rebutted (innocence).
Presuming an element shifts the burden of proof to D (e.g., MPC felony-murder)
BRD is reached when every fair and rational hypothesis of innocence has been eliminated such that the only reasonable conclusion is guilt.
Role of Court v Jury
Court (judge) decides if jury should be allowed to consider an issue.
                                                               i.      Test is whether it would be reasonable to conclude that the evidence presented has proved the element BRD.
Judge gives instruction on law
Jury decides what are the facts based on the evidence and applies them to the law to determine if government has proved case BRD.
Jury limits
Nullification – power of a jury to return a not guilty verdict even though government has proved every material element BRD. 5th amendment prevents retrying D. When jury nullifies, it violates their oath to apply the instructions given by the judge and usurps the power of the legislature to make laws and courts to enforce them.
Judge does not give an instruction regarding nullification because it is only a power, not a right, of the jury.
Theories of punishment
Utility – punishment must serve some purpose;
                                                               i.      General deterrence (of others), specific deterrence (of an individual), incapacitation (segregation), reform/rehab, retribution
                                                             ii.      Punishment should fit the criminal – considers recidivism (history of D) and looks forward in considering benefits to society of the punishment
Retribution – punishment justified because person committed crime
                                                               i.      Punishment should fit the crime; proportional to specific act committed
                                                             ii.      Backward looking at the specific act
Statutory Interpretation
Principle of Legality – no crime without a law
Legislatures create laws which define certain acts as crimes; judiciary interprets and applies laws.
Laws must be reasonably precise to give notice of the prohibited conduct and not encroach on legitimate conduct
                                                               i.      Interests served: Courts can determine how to prosecute, attorneys, how to defend and actors, how to avoid violating, police, what is prohibited conduct.
Courts interpret criminal statutes in deciding cases; these decisions become part of the definition of the law because they clarify the prohibited conduct.
                                                               i.      Consider plain meaning of terms, CL words of art, statute’s objectives, legislative history/intent, stare decisis, internal consistency, interests of justice, look for constitutional application before declare statute unconstitutional
Statutory interpretation principles
Principle of legality – no crime/punishment without there first being a law; legislatures must not abdicate their law making responsibility to the courts
Void for vagueness – reasonably precise definition to give notice of prohibited conduct; if not, violates due process rights; (overly broad or fails to give adequate notice)
Doctrine of Lenity – ambiguous statutes is construed in favor of D
Role of CL
Since many criminal statutes based on CL, CL can provide explanation of how to apply the statute. Legislative history will show if legislature intended to abrogate CL or modify its definition.
Legislative intent
Reasonably precise not perfectly precise in defining statute
Mindful of CL words of art; courts presume legislature adopted CL meanings unless otherwise indicated.
Stare decisis for interpreting a statute
Model Penal Code (MPC)
Based on CL but does differ in some instances (e.g., felony-murder).
Elements of Crime
        I.            Actus Reus
a.       Actus – the p

t to make act voluntary
2.       mens rea-defendants state of mind regarding the social harm/conscious objective to produce harm
g.       Proving Mens Rea
                                                               i.      Proof of Intent
1.       Motive is not Intent
a.       Motive can help prove intent
2.       Intent is the purpose to produce the result
3.       Intent is not presumed, it is inferred
                                                             ii.      MPC default MR – purpose, knowledge, reckless
                                                            iii.      CL default MR – intent (conscious objective, knowledge to a substantial certainty)
                                                           iv.      Strict liability – no mens rea
1.       Guilty when commit the act; no mens rea required
2.       Disfavor SL offenses because criminal law is about punishing those with a guilty mind
3.       SL is constitutional but usually only defined for administrative offenses (fine only).
a.       Public welfare offense be strict liability because: Powerful societal interest in streamlining punishment, minor offense (administrative / regulation offenses), Deterrence 
4.       Statutory Rape is SL because of societal belief that sex with children is wrong under any circumstance because minors cannot give valid consent under the law).
a.       Some states allow D to present facts showing he had no knowledge of the age of the victim
5.       If no MR specified in federal statute, courts
a.       Look at language, CL, legislative intent, the penalty imposed, statutes regulating harmful/dangerous items, CL words of art and prior decisions
                                                                                                                                       i.      If penalty is more than administrative, likely not SL. The more severe the penalty, the less likely the court will find the statute strict liability.
b.      Apply normal presumption that D must know the facts that make conduct illegal and allow D to rebut presumption.
6.       5 principles of strict liability
a.       Legislature can always omit Mens rea when they want
b.      Have presumption there will be a Mens Rea courts don’t usually omit
c.       If omit Mens rea usually regulatory crime usually fines
d.      If court interprets a statue as non regulatory, assumption there is a Mens Rea in MPC: default MR is recklessness
                                                             v.      Transferred intent –
1.       Intent transfers if you produce the prohibited result; legal fiction – look at the elements to determine if elements satisfied