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Criminal Law
SUNY Buffalo Law School
O'Rourke, Anthony


Professor O’Rourke Spring 2012

Class # 1-Introduction 2/7:

Owens v. State (pg. 14)+(notes 3 & 4): guy drunk in car convicted of DWI “A conviction upon circumstantial evidence alone is not to be sustained unless the circumstances are inconsistent with any reasonable hypothesis of innocence.”

*Note 3 & 4 discuss judge directed verdict & presumption of evidence on appeal.

State v. Ragland (pg. 19) + (notes 1, 4 & 5): D questions Judges jury instructions containing the word “must”. The jury’s right to acquit despite overwhelming evidence of guilt is not a right of the accused but rather a power of the jury.

A jury may acquit a defendant despite overwhelming proof of guilt. This practice, commonly referred to as jury nullification, is certainly a power the jury has. However, jury nullification is not desirable. The legislature has defined criminal conduct, and while twelve people picked as jurors may see a law as unjust or a particular application of a law as unfair, they are not in the best position to revise the law. The legislature is elected to perform such a duty. Therefore, the New Jersey Supreme Court concluded that jury nullification is not, as the defendant argues, a constitutionally protected attribute of the right to trial by jury. A jury simply has the power to nullify the law by acquitting a person believed to be guilty. Hence, it was not error for the judge to instruct the jury as he did.

*Notes 1, 4, & 5 discuss conflicting views on JN, factors juries consider in acquitting D, & race based JN.

Class # 2-Theories of Punishment 2/9:

Utilitarian: deterrence – punishment is justifiable if, but only if, it is expected to result in a reduction of crime. Punishment must be proportional to the crime, i.e., that punishment be inflicted in the amount required (but no more than is required) to satisfy utilitarian crime prevention goals. *Another form of utilitarianism is rehabilitation (or reform). Examples of rehabilitative “punishment” include: psychiatric care, therapy for drug addiction, or academic or vocational training.)


Retributive: a convicted defendant is punished simply because he deserves it. There is no exterior motive such as deterring others from crime or protecting society – here the goal is to make the defendant suffer in order to pay for his crime. Retributive theory assigns punishment on a proportional basis so that crimes that cause greater harm or are committed with a higher degree of culpability (e.g., intentional versus negligent) receive more severe punishment than lesser criminal activity.

Dudley v. Stephens (pg. 48): Killing an innocent life to save one’s own does not justify murder even if it under extreme necessity of hunger.

People v. Kellogg (courseweb): Involuntarily homeless chronic alcoholic may constitutionally be prosecuted for public drunkenness. (See Class 2 Justifications)

Class #3-Theories of Punishment in Practice & Proportionality 2/14:

People v. Du (pg. 51) + (notes 1-4): A) Any self-defense claim will be heavily scrutinized and only applied in limited situations. B) In imposing a sentence, a judge must first consider the objectives of sentencing a defendant, including: (1) to protect society; (2) to punish the defendant for committing a crime; (3) to encourage the defendant to lead a law-abiding life; (4) to deter others; (5) to isolate the defendant so she cannot commit other crimes; (6) to secure restitution for the victim and (7) to seek uniformity in sentencing. (Judge found probation is a more appropriate form of sentence than incarceration in this case)

Coker v. Georgia (pg. 72): Court held a sentence of death for rape is grossly disproportionate and excessive punishment and is therefore unconstitutional. “A punishment is ‘excessive’ and unconstitutional if it (1) makes no measurable contribution to acceptable goals of punishment and hence is nothing more than the purposeless and needless imposition of pain and suffering; or (2) is grossly out of proportion to the severity of the crime.”

Ewing v. California (pg. 81): D had a substantial criminal history and was on parole when he was arrested for grand larceny after stealing three golf clubs from a sports store. Under California’s “three strikes” law, he was sentenced 25 years to life.

*There are four principles of proportionality review: “1) the primacy of the legislature, 2) the variety of legitimate penological schemes, 3) the nature of our federal system, and 4) the requirement that proportionality review be guided by objective factors.” The Court differed to the California legislature on the relevant point. On the last point, the Court compared “the gravity of the offense to the harshness of the penalty,” holding that the theft, in combination with petitioner’s “long history of recidivism”, justified the “public safety interest” aspect of the sentence.

Three Strikes Laws are statutes enacted by state governments in the United States which require the state courts to impose a life sentence (usually with the possibility of parole) to persons who have been convicted of three or more serious criminal offenses.

Class #4-Legality 2/16:

Principle of Legality (pg. 92): A person may not be convicted unless their conduct was defined as criminal via statute. (Statutes must be understandable to reasonable law abiding citizen, should be crafted so they do not delegate basic policy matters to policemen and other officials on a subjective basis, and they should be read in favor of accused **Lenity doctrine)

Commonwealth v. Mochan (pg. 92): The Pennsylvania Penal Code, at the time of this case, provided that common law crimes were still punishable. “Whatever openly outrages decency and is injurious to public morals is a misdemeanor at common law.” The defendant’s phone calls suggested sodomy and consisted of lewd, immoral, and filthy language. These acts may potentially injure public morality, so the defendant’s conviction was justified. Dissent. By punishing under the common law, the judiciary is improperly invading a field that should be left to the legislature, namely deciding acts that injure the public. **NOTE. Nearly all states, including Pennsylvania, have abolished common law offenses.

Keeler v. Superior Court (pg. 95): The Defendant was charged with murder and appealed on the issue of whether the killing of an unborn fetus constitutes murder. The term “human being”, as contemplated by the penal code of California, does not include an unborn fetus. **This case addresses several aspects of legality and their limitations with regard to criminal law such as the fact that we do not allow judge-made law, however, laws are written in general terms that necessitates interpretation. The case also addresses the idea that we do not allow the imposition of retroactive lawmaking and that we must afford notice of what acts constitute criminal behavior such that individuals have the opportunity to avoid such behavior.

*Notes 1, 3 & 4 of Keeler discuss the amended California statute after this case, Ex post facto legislation (retroactive law) and due process, and crimes by analogy.

In Re Banks (pg. 105) (Values of Statutory Clarity): A criminal statute must be sufficiently definite to give notice of the act proscribed. The statute is presumed constitutional and must be so held unless it conflicts with some constitutional provision. Where the statute is clear and unambiguous on its face, the courts must give the statute its plain meaning.

However, where there is an ambiguity in the

Justice Handy: Would reverse. The statute clearly applies, but the judge must exercise common sense. Further, public opinion overwhelmingly supports reversal, and it is clear (contra Truepenny) that the executive will not grant clemency. Therefore, it falls to the court.

Class #6 Actus Reus 2/23:

Actus Reus: physical or external part of the crime (conduct + harmful result)

Martin v. State (pg. 128): A person in not guilty of an offense where liability is based on involuntary conduct. The statute the Defendant allegedly violated states, “Any person who, while intoxicated or drunk, appears in any public place where one or more persons are present, and manifests a drunken condition by boisterous or indecent conduct, or loud and profane discourse, shall, on conviction, be fined.” Such a statute presupposes voluntary appearance. The Defendant was involuntarily taken onto the highway and cannot therefore be convicted of the crime charged.

State v. Utter (pg. 130): Defendant killed son but remembers nothing but drinking with a friend of his and waking up in jail. He sought to introduce evidence of “conditioned response,” which his expert defined as an act done automatically in response to a certain stimulus. D’s theory should have been given to the jury if there was sufficient evidence to support it; however, there is not sufficient evidence in this case. An “act” committed during unconsciousness is not voluntary, and therefore one cannot be held criminally culpable for said act. However, voluntarily induced unconsciousness, such as by drugs or alcohol, is not a complete defense.

People v. Beardsley (pg. 136): D was not guilty of manslaughter for failing to aid his mistress. A person owes no legal obligation to another unless such person is within his custody or care as a dependent person. *Illustrates the parameters around the legal necessity of a duty to act, and the criminal liability of failure to act when there is an obligation to provide reasonable assistance

Barber v. Superior Court (pg. 142): A physician’s failure to continue treatment of a comatose patient at the request of the patient’s family is not an unlawful failure to perform a legal duty and therefore is not punishable under the penal code. Murder is the unlawful killing of a human being, to be distinguished from those killings which society has deemed justifiable. This court deems the cessation of life support as an omission of further treatment as opposed to an affirmative act and there is no criminal liability for an omission where no legal duty is owed. A physician’s omission to continue treatment where such treatment has proven ineffective, regardless of the physician’s knowledge that the patient would die, is not a failure to perform a legal duty and therefore the physician cannot be held liable for murder. (*Note: lethal injection=affirmative act/murder)

Social Harm (pg. 146): “Result crimes”-murder/arson=actual loss v. “conduct crimes” –DWI/solicitation=endanger socially valuable interest.