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Criminal Law
Southern Illinois University School of Law
Lee, Mark N.

· Principle of Legality-requirement that offenses be previously defined
o Issue: Can the D be convicted of a crime that is not written in a statute?
§ Prosecution: Yes
· D’s conduct was obviously wrong and he probably knew it so he should be punished
· Want to deter him and others from wrongful behavior by punishing those who commit such behavior
· His person is a threat to society and should be punished
· Will encourage others to do the same conduct and it basically gives a free pass to imaginative criminals
· Inefficient-impossible to criminalize every wrongful act; court should interpret
· Fair Warning argument inapplicable: most people don’t know the statute language anyway
§ Defense: No
· No deterrence because if the criminal doesn’t have notice that his acts are criminal, it won’t deter him
· People don’t consult the law before they act
· Encourages arbitrary enforcement of the law by police, judges, and prosecutors. DA’s will shop for judges who see things their way and personal biases will overtake well-reasoned law
· Violates legislative duty to decide what acts are criminal
· Vagueness Doctrine-offenses should be specifically defined
o Issue: Are D’s actions sufficient to satisfy the requirements of the statute?
§ Prosecution: Yes
· Virtually all laws allow arbitrary enforcement by police, judges, etc.
· Fair Warning argument inapplicable: most people don’t know statutes
· Laws must be in abstract and vague form to apply to numerous situations and facts
· Up to juries to interpret vague standards
· The level of acceptable vagueness turns on the context of the crime. Only those who have already committed the crime will be affected
· Most statutes survive void for vagueness scrutiny
· Take into account who will be interpreting. White collar crimes will be interpreted by people who can afford attorneys
§ Defense: No
§ No deterrence since D had no warning that his conduct was criminal
§ Arbitrary of discriminatory enforcement
§ Vague statutes risk convicting innocent people
· Voluntary Act
o Issue: Does D’s act qualify as voluntary?
§ Prosecution: Yes
· D voluntarily put himself in the situation where he knew the act might occur even though he did not have control over the act himself (driving w/epilepsy)
· Act is separate from the involuntary condition (drug addict doing drugs)
· Decriminalizing acts that result from addiction would encourage drug addiction
§ Defense: No
· There is no deterrence if the D’s act was not voluntary
· Convicting those who do acts involuntarily would convict innocent citizens who would ordinarily not do the act and who are no threat to society
· Convicting D would be convicting someone because of their status, which imposes on personal freedom to choose one’s status
· Cannot convict on status alone
· Omissions
o Issue: Should D’s failure to act be prosecuted under statute? Did D have a positive duty to act in the first place? Was D’s duty statutorily prescribed or was it a common law duty?
§ Prosecution: Yes
· D had a duty to act because he voluntarily assumed a caretaker role and precluded others from taking on that duty
· Duties may by implied by
· Statute
· Relationship to decedent
· Contract
· Voluntary assumption of care
· Danger
· Circumstances
§ Defense: No
· Omission is not an offense unless a statute specifically requires a person to have a duty
· No legal duty to act, even if there is a moral duty
· Personal autonomy
· People would be required to meddle in others business to avoid criminal sanctions
· How would one know when they had a duty? Vagueness…
· Statutory Construction and Interpretation
o Statutory Construction
§ Have to look at plain language first
§ Then construe language in accordance with:
· Legislative intent (arg. intent if favor of your side)
o Courts can’t extend statute past legis. intent (rule of strict construction)
o Other language in the statute, amendments, language in other statutes
· Precedent case interpretations
o Other helpful court decisions
o If not helpful, then have to limit the holding
· Functions of criminal law
§ Can’t apply laws retroactively (ex post facto)
§ Statutes with controversy where defined behavior doesn’t have much to do with statute (i.e. should telling truth qualify as perjury even if you have a nasty purpose?)
· Argument needs to reflect understanding that legislation is primary
§ Parade of horribles à inchoate meeting minimum vs. not meeting minimum
· Argument to include less than stated conduct and argument not to include
o Issue: Should D’s conduct qualify for prosecution under the statute?
§ Prosecution: Yes
· Give effect to legislative intent: the legislature was trying to prohibit certain behavior
· Science/community may have developed too fast for statute and that is the reason it was not included
· Does not go against principle of legality and fair warning as long as the expansion/interpretation was foreseeable to D. D likely didn’t look up law before committing crime anyway.
· Granting loopholes will make it impossible to get a conviction
· Too burdensome for legislature to specify every meaning
§ Defense: No
· No fair notice (legality) encourages arbitrary and discriminatory enforcement
· May erase meaning of competing statute dealing with the same issue in some
· Situations
· The legislature covered abortion and killing of fetuses in another statute other than homicide, it didn’t mean the homicide statute to cover fetuses. This would make abortion punishable under the homicide statute. The court is respecting the intent of the legislature to treat homicide and abortion differently.

CULPABILITY- always ta

olation is missing penalty or the same as another, suggestive intent of statutes
o Look to multi-part or similar penalties to determine suggestions for requiring or not certain higher/lower/same culpability about…
§ If penalty is suggesting jail time this would suggest that the prosecutor must show some culpability with respect to the action, however look to see whether it suggests more than negligence (defendant may struggle here to prove due care was exercised to overcome negligence)
3. Legislative intent/history (if it exists, you have to use it in argument)
o Whether statute partakes common law development à words should be interpreted in a way that is consistent with the way they were received
4. Argue in the alternative /Floodgate/parade of horribles (consequences of interpreting statute one way or another)
o Although this may happen if you interpret my way, worse will happen if you interpret against me
o Trot out predictions and discuss pros and cons
o Similar to slippery slope, however instead of just a chain of additional events that a particular ruling will create, argument focuses on the horrible things that will happen as a result (inevitably)
§ Prosecution: Lower Culpability
o Anything more than negligence encourages D’s to lie and say they didn’t know (whatever the element is to be modified)
o It is appropriate to use lower culpability when the potential social harm is great and the context gives adequate notice that the behavior is wrong
§ Defense: Higher Culpability
o Don’t want to over-deter
o If culpability is too low, people will be afraid of doing normal activities for fear of punishment

· Rationale
o Circumstances that are required by that statute to exist but defendant is unaware of the circumstances’ existence
§ Only applies as an excuse to specific intent requirement
· 2 standards of application
o Objectiveà reasonable person wouldn’t have been aware of circumstances (majority rule)
o Subjectiveà defendant could not foresee harm being caused by act
· Lesson: if arguing mistake of fact need to also argue specific intent required (opposed to general intent)
§ Mistake is not an excuse for public welfare laws on grading offenses
· Issue: Should D’s mistake about a fact relieve him of liability?