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Criminal Law
Southern Illinois University School of Law
Dervan, Lucian E.

Criminal Law

Lucian Dervan

Spring 2015

What are the sources of Criminal law

· Common law: (judge made- murder, theft, fraud) roots of American criminal law

· Legislatures (statutory law): 20th century criminal law

· Courts

o Constitution: establishes limits to statutes

o Interpretation of statutes

· Model Penal Code

o Coherent model code for the state legislatures to adopt

Theories of Punishment: will focus on all semester

· Retribution: idea of getting your just desserts. Straight up punishment. You will be punished for what you have done. This is the driving force today.

· Deterrence: Idea is we will make an example of you. (pretty ineffective)

o General: others will see you go to prison for 2 years and will be deterred from the same criminal activity

o Specific: if I send you to prison for 2 years, you will be deterred from future criminal conduct

· Incapacitation: If I get you off the street, you can’t commit another offense. Ex: sex offenders. And also their registration is sex offenders. Another example: repeat offenders.

· Rehabilitation: we are going to do something that rehabilitates you. Drug counseling, alcohol treatment, mental healthcare, job training, etc. hoping you won’t commit the crime again. Up until 1973 this was the driving force.


Indeterminate v Determinate Sentencing

· Up until the 1950’s worked like Shawshank Redemption.

o Parole board decides if they are rehabilitated.

· Indeterminate: sentenced to 10 to 15 years. If parole board says he was rehabilitated before 15 years, can be released. Must do at least 10 years.

· Determinate: you get a number (120 months, etc.) no federal parole. Do not get out early because of parole board, can get good time credit through. No focus on rehabilitation. IL has no parole but good time credit is so generous it looks like parole.

Forms of punishment –

· Prison

· Jail

· Fines

· Boot Camps

· Shaming

· Community service

Case Examples

· Queen v. Dudley & Stevens

o 4 men on boat w/o food and water. 2 men agreed to kill one man to eat to survive. Murder?

o Consider the 4 theories of punishment and how each would apply.

o Retribution probably the only one b/c they don’t need to be deterred, incapacitated, or rehabilitated.

· People v. Superior Court (Du)

· Victim allegedly was stealing from defendant’s store, defendant confronted the vic and they got in a physical altercation. Vic turned away and was shot and killed by defendant. Gun had been altered so safety mechanism was faulty and trigger was too easy to pull

· Consider the theories of punishment – D was under provocation and not a danger to society so – probation.


· Nullum Crimen Sine: no crime without law. Cannot say after the fact that what you did was a crime if it wasn’t a crime at the time the offense committed.

· Ex Post Facto. No one at Nuremberg was charged with genocide because it wasn’t a crime at the time of the holocaust.

Three related concepts:

· Criminal statutes should be understandable: Must be able to figure out what is and is not permissible. Must put people on notice.

· Criminal statutes should not delegate basic policy matters to police, judges, or juries on an ad hoc and subjective basis: don’t create a statute that is so broad that it covers everything that its left up to police or prosecutors to decide. Gives too much discretion and power.

· Judicial interpretation of ambiguous statutes should favor the accused (Doctrine of Lenity): if the court isn’t sure what it means, the defendant should win because they are going to lose their liberty and the statute must be clear.

Statutory Interpretation Review

· Presume Constitutional

· Strict construction

· Clear-plain meaning

· Unclear- legislative intent

Case Examples

· Commonwealth v Mochan

o D harassed vic on telephone (4 party line) on numerous occasions saying many upsetting things. D appeals guilty verdict.

o Rule – “any act which directly injures or tends to injure the public to such extent as to require the state to interfere and punish the wrong doer.”

o Legislature was just beginning to codify laws and this was a catchall in case they missed some things. Affirmed.

· Keeler v. Superior Court

o D, ex-husband found out vic was pregnant by another man, cornered her on the road and hit her in the abdomen, purposely killing her baby. Charged with assault to ex-wife and murder of fetus.

o Rule – unlawful killing of a human being with malice aforethought

o CL – past rulings that fetus is not a human being until it has been born and lived. Due process – D wouldn’t have known that killing the fetus was murder – so conviction would violate due process.

o Dissent – quicken – child is human when it shows signs of life (kicking).

Actus reus

· Actus Reus: physical/external act: must be voluntary (time framing?)(action element)

o Can be an act or omission (failure to act)

· Mens Rea: Mental element (Intent)-culpable mind. Knew it was wrong.

· Causation: Link between act and harm (harm only required in harm offenses). Only required in some crimes (harm offenses). Required because there is going to be some link between your action and your harm.


· Act must have been voluntary, not forced or caused by involuntary act

· Consider time framing. A chain of voluntary acts(or even 1 voluntary act) leading to an involuntary act can still be considered voluntary.


o Narrow – specific intent regarding the social harm

· Terms –

o Maliciously – intentional (purposefully/knowingly) or reckless

o In Illinois: Intentional or knowing = purpose or knowing

MPC (in order of highest standard to lowest standard)

· Purposefully: defendant’s conscious objective that it occurred

· Knowingly: practically certain result would occur

· Recklessly: consciously disregards a substantial and unjustifiable risk

· Negligently: What would a reasonable person have done in this situation? D should be aware of a substantial and unjustifiable risk that the material element exists or will result from his conduct. The failure to perceive it involves a gross deviation from the standard of care that a reasonable person would observe in the actor’s situation

· If no MR listed then its Purposefully, Knowingly, Recklessly (first 3)

· No general intent and no specific intent and no maliciously. If you see PKRN, then know it’s MPC.

All above applies to all material elements of the offense!!!! 2.02 p. 968

Transferred Intent

· Legal idea = intent travels with the bullet/blow

o Attempt? Courts divided

§ Some split intent, some don’t

· D is as guilty as if the blow had fallen on the intended victim

· CL + MPC agree on TI

· Reagan assassination attempt:

o Hinkley intends to kill him but he severely injures 3 other people instead


Hypo: MPC model

Conley case: intends to hit one but hits another

Intent follows the bottle and travels from one person to another

Can use the same evidence from D intending to hit person #1 for the person actually hit

Doesn’t matter if it doesn’t work out as it planned

Hypo: MPC model

D fires a bullet at X but misses and kills bystander Y instead

Start with Y: can satisfy Purposefully: because his conscious objective it occurred.

Move to X: what do you charge D with?

Issue: there’s only one intent. Can’t use it twice. Prosecution needs to split it and charge for both X and Y.

Split: no definitive answer. Some courts say you can’t split but others say you can. Some won’t let you charge murder and attempted murder. Some will let you charge both.