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Criminal Law
St. Johns University School of Law
Simons, Michael A.

I. INTRODUCTION
A. ELEMENTS OF A CRIME

Actus Reus

1. Act

2. Harm
3. Intent à Mens rea
a. Intentional, reckless, negligent. Negligence is almost never criminal (exception: homicide) because it’s unintentional and therefore hard to deter.
4. Causation
· Certain crimes have different focuses:
o In homicide, the focus is on intent; mental state of actor.
o W/r/t forcible rape, the key element is the force: Actus Reus.
· Bad acts + bad intent but no bad result can still be criminal: ATTEMPTS

B. DEFENSES
All elements of crime are satisfied but due to an excuse or justification, actor is not guilty.
1. Excuses
a. Insanity
b. Duress
2. Justifications
a. Self-defense
b. Necessity

C. SOURCES OF CRIMINAL LAW
1. Common law:
a. Felonies: all were punishable by death.
b. Misdemeanors
2. Legislation:
a. NYPL: A-E felonies, A – B mis., violations à mixed MPC & common law
b. MPC: 1st – 3rd degree felonies, misdemeanor, petty misdemeanor
c. CA – codified common law; no MPC

d.

MPC § 1.02: Purposes; Principles of Construction.
(1) The general purposes of the provisions governing the definition of offenses are:
(a) to forbid and prevent conduct that unjustifiably and inexcusably inflicts or threatens substantial harm to individual or public interests; (Util.: general & specific deterrence)
(b) to subject to public control persons whose conduct indicates that they are disposed to commit crimes; (Util.: incapacitation)
(c) to safeguard faultless conduct from condemnation as criminal; (Ret.: culpability)
(d) to give fair warning of the nature of the conduct declared to constitute an offense; (Util.: general deterrence)
(e) to differentiate on reasonable grounds between serious & minor offenses. (Ret.: harm)

40 states have adopted large portions of the MPC. But it isn’t the complete law anywhere. Every state includes its own modifications.

NYPL § 1.05: General purposes
The general purposes of the provisions of this chapter are:
1. To proscribe conduct which unjustifiably and inexcusably causes or threatens substantial harm to individual or public interests;
2. To give fair warning of the nature of the conduct proscribed and of the sentences authorized upon conviction;
3. To define the act or omission and the accompanying mental state which constitute each offense;
4. To differentiate on reasonable grounds between serious and minor offenses and to prescribe proportionate penalties therefore;
5. To provide for an appropriate public response to particular offenses, including consideration of the consequences of the offense for the victim, including the victim’s family, and the community;
6. To insure the public safety by preventing the commission of offenses through the deterrent influence of the sentences authorized, the rehabilitation of those convicted, and their confinement when required in the interests of public protection.

D. DIFFERENCES BETWEEN THE CRIMINAL AND CIVIL SYSTEM
1. Public harm vs. private harm à different remedies
a. Assault/battery: monetary damages
b. Criminal charge: general deterrence, jail time, social harm à interest of society in remedying the wrong. The state exacts the remedy.
2. Why Punish?
a. Punish wrongdoer rather than compensate victim.
b. Moral element of wrongdoing – civil law is in theory morally neutral – a fine in a criminal case is not compensation, but punishment. In theory, the moral condemnation that the punishment carries with it is the distinguishing feature of the criminal system.
3. Procedural differences
a. Preponderance of Evidence vs. Beyond a Reasonable Doubt standard (BARD)
i. 5th Amendment: only applies to federal government. In state courts the 14th Amendment applies. Supreme Court used 14th Amendment to make Bill of Rights applicable to the states.
ii. 7th Amendment allows a right to a jury in a civil case but does not apply to the states.
b. Why require a jury in criminal cases?
i. Historical distrust of federal government.
ii. The jury should symbolically represent society.

II. THEORETICAL UNDERPINNINGS
A. PRINCIPLES OF PUNISHMENT: THEORIES
1. Utilitarian Argument:
a. Forward-looking, consequentialist, crime prevention
b. Focused on: “the good of the many”; goal is to protect society
c. Punishment itself is an evil à minimum punishment that will accomplish goal.
d. Utilitarian reasons for punishment:
i. General Deterrence: deter other people who would commit crimes.
ii. Specific Deterrence: deter actor from committing crimes.
iii. Incapacitation: can’t commit crimes while incarcerated.
iv. Rehabilitation: reform actor and help him be a better member of society.
e. Act-Utilitarianism – in any situation do the act that results in the greatest good
f. Rule-Utilitarianism – in all situations, follow the rule that does the greatest good
2. Retributive Argument:
a. Backward-looking, people get what they deserve; Goal: “desserts” punishment.
b. Focus: harm (injury caused) + culpability (choice made) = “just desserts” punishment: get what you deserve and only what you deserve, no more, no less.
c. Indifferent to consequences of punishment.
d. Positive Retributive theory: dessert allows for punishment
e. Negative Retributive theory: dessert requires punishment
f. Remorse – May reduce culpability.

The Queen v. Dudley and Stephens (p. 48): 3 shipwrecked guys on lifeboat decide to kill and eat 4th guy (weakest link). Should they be punished?
Utilitarian theory: designed to reduce crime in the future; punishment tries to make world a better place. Therefore, they shouldn’t be punished because 3 lives > 0 lives.
Retributive theory: thou shall not kill. Look backwards, not to future. Look at acts did in past and whether people should be punished for them.

People v. Du (p. 50): Voluntary manslaughter: common law crime in CA à defined as an intentional killing upon a sudden quarrel or heat of passion.
· Jury: intentional and not justified as self-defense. Guilty of voluntary manslaughter.
· Judge Karlin’s sentence: 10 years

. Here, both were satisfied.

Only if first part of the test demonstrates a disproportion will the other parts of the test be looked at.

Ewing v. CA (p. 76):D àstring of crimes: burglary, battery. Prior to 1993, host of offenses, none of which are very serious. In 1993, commits a serious crime: robbery at knife point. 9 years. Out in 1999. Then he tries to steal golf clubs. 25-life for theft of $1,200 golf clubs (3rd strike).
· US SC held: 8th Amendment does not prohibit a state from sentencing a repeat felon to 25-life under state’s “3 strikes law”. Sentence affirmed.
· What goals are advanced by 25-life sentence? Utilitarian: incapacitation & general deterrence.
· SC noted effectiveness of CA’s 3 strikes law in general deterrence. (Drop of 25% in repeats)
· Criticism of 3-strikes laws should be directed at state’s legislature, and court is not supposed to second-guess legislative branch as a “super legislature”
· Why did majority in Coker not have faith in GA legislature to make good law on whether death penalty should be applied to rape? Because of racism in GA – black men getting death penalty for raping white women. This was not at issue here.

C. MODERN CRIMINAL STATUTES: LEGALITY
*principle of legality: cannot punish unless a defined crime was committed*

Commonwealth v. Mochan (p. 88):D harassed lady (lewd suggestions of sodomy, etc.) Charged with intention to corrupt & debauch, harass, embarrass, and vilify. Not defined in any statute.
· PA Super. Ct. held: D can be prosecuted for committing a common law crime even if it hasn’t been specifically enacted into legislation. Affirmed.
· All jurisdictions have abolished common law offenses including PA now.
· Problem with prosecuting common law offenses: no notice to D à unfair. Utilitarian: if no one knows what law is, won’t accomplish deterrence sufficiently
· Legislature in better position to make laws because they’re elected. Courts still must interpret.

1. Rules of Legality:
a. Crimes must be defined by legislature
b. Legislature/judiciary cannot create retroactive crimes
c. Judges can/must interpret legislative definitions
d. Unfairly ambiguous statutes may be unconstitutional
e. Overly broad statutes may be unconstitutional
2. Policies Underlying Legality: