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Criminal Law
SUNY Buffalo Law School
Ewing, Charles P.

Criminal Law Outline Ewing Spring 2011

I. Introduction (CB 1-30) Purposes of Punishment

II. Process of Crime Definition

a. Principle of Legality 31-43

i. Previously defined conduct – general rule — Forbids retroactive crime definition.

1. Desirability in principle of advance legislative specification of criminal conduct.

2. Principle concerns the process rather than the content.

ii. Rationales for Legality Principles

1. In order for deterrence to work, we must have stuff spelled out ahead of time.

2. Commitment to representative government and Idea of social contract. We only gave up what we have to, not every freedom. Don’t want individual judges or people to make laws that are good for them, want representatives to make laws that are good for everyone.

3. Judicial innovation could (in Beccaria’s view pg. 37) lead to arbitrariness and inconsistency.

4. Today people wouldn’t say that crimes exist because people don’t know what the law is. Most criminals know their conduct is illegal but believe they won’t be caught. Therefore, the principle of legality is justified more as being essential to the ethical integrity of the criminal law.

5. Principle of legality is a good check on police officers and prosecutors. “in a system that lodges the all-important initiating power in the hands of officials who operate, as they must, through informal and secret processes, there must be some devices to insure that the initiating decisions are, to the greatest extent possible, fair, evenhanded, and rational.”

iii. Rex v. Manley (1932 ENG): Δ was convicted of giving false comments to the police. The trial court held that the act “tended to a public mischief” and the appeals court affirmed, finding compelling evidence that there were “ingredients” of public mischief or prejudice to the community. Today viewed as bad law.

iv. Shaw v. Director of Public Prosecutions (1961): Δ convicted of common law misdemeanor of conspiracy to corrupt public morals (for publishing hooker directory). “There remains in the courts of law a residual power to enforce the supreme and fundamental purpose of the law. Contra bonos mores – against public morals.

v. Knuller v. Director of Public Prosecutions (1972): Conviction for running classified ads by male homosexuals, relying on Shaw, despite an act by parliament decriminalizing homosexual acts.

b. Vagueness 43-64

i. A Constitutional Doctrine requiring that criminal statutes have at least minimally clear meaning.

ii. Papachristou v. City of Jacksonville, US 1972 – 52

1. Facts: Two white women and two black men were arrested while driving under an ordinance banning “vagrants” R: Vagrancy laws of the Jacksonville type teach that the scales of justice are so tipped that even handed administration of the law is not possible.

2. “Those generally implicated by the imprecise terms of the ordinance – poor people, non conformists, dissenters – may be required to comport themselves according to the lifestyle deemed appropriate by the Jacksonville police and the courts.

3. “Encourages arbitrary and discriminatory enforcement” è “convenient tool for harsh and discriminatory enforcement.

4. Over-Inclusive: allows police officers to decide when to enforce.

iii. Kolender v. Lawson, US, 1983 – 43

1. F: Lawson arrested 15 times under Cal. Statute §647-e that requires persons who loiter or wander on the streets to provide a credible and reliable ID and to account for their presence when reqruented by a cop under circumstances that would justify a stop under Terry rule.

2. H: §647-e is unconstitutionally vague b/c it encourages arbitrary enforcement by failing to describe with sufficient particularity what a suspect must do in order to satisfy the statute.

3. R: Void for Vagueness doctrine: a penal statue must define the criminal offense with sufficient definiteness that 1) ordinary people can understand what conduct is prohibited and 2) in a manner that dn encourage arbitrary and discriminatory enforcement.

4. Need to show how a suspect would satisfy the requirement to provide credible and reliable ID. è in end, suspect violates statues unless the officer is satisfied with the ID.è State fails to establish standards by which the officers may determine whether the suspect has complied with the ID requirement.

5. Under fed constitutional law, courts can find something unconstit. usually only when there is a criminal outcome. è only way to 2 ways to challenge the law 1) violate the law. You challenge the law as a defense 2) facial challenge è rarely happens, so this is construed very narrowly. You usually aren’t allowed to challenge a law that is not directly affecting you. è usually has to be invalid in a respects. This case is a facial challenge!!!

iv. Chicago Gang Congregation Ordinance

1. – in one year alone, 40,000 people were arrested. – Less notice than Kolander è in that case, perp. could get out of situation by showing identification. Here you have no way out until trial when you can give an affirmative defense. Struck down by Ill courts on vagueness grounds è definition of loiter is too broad. è It’s difficult to understand what is it to not have a purpose. Having a cigarette, going for a walk, etc…è also vagueness of disperseness element, what does it mean (one block, two) and for how long.

v. Whats wrong with a vague statute?

1. fails to give adequate notice of whats prohibited. Ie lack of fair warning.

2. indefinite law invites arbitrary and discriminatory enforcement. The power to define a vague law is left to those who enforce it.


1. Most people don’t learn what the law is from a statute. This means that facial uncertainty of the statute can be overcome by judicial construction.

2. A vague statute may invite arbitrary enforcement, but any law allows it.

a. Police decide who to arrest and which laws to enforce. Prosecutors decide who to bring charges against and prosecutors may accept or reject guilty pleas and make or withhold recommendations of sentence.

vii. 3 points about SC and vagueness doctrine.

1. Never been used to strike down a core crime such as rape, murder or theft. If the legislature is making a good faith attempt to deal with a real social problem, particularly where there is an identifiable victim to the crime, its unlikely to be held unconstitutionally vague.

2. SC rarely if ever used the vagueness doctrine to prohibit legislature from accomplishing a legitimate law enforcement objective. Its ALWAYS relevant to vagueness issue whether its possible to draft a narrower statute that will still accomplish the same goal. And Law enforcement need is always a powerful arg. Against the vagueness of any statute.

3. Law students overuse the vagueness doctrine. Its very limited. Classic situation is one where the crime defined by the legislature seems to be aimed at no particular evil, where the average citizen may well violate the law by engaging in perfectly innocuous conduct, where there is a large opportunity for law officers to pick and choose those they’d like to arrest and where there isn’t a serious law enforcement need for a statute drafted in the terms before the Court.

viii. Factors that influence the cts. Decision to tolerate vagueness

1. infeasibility of greater precision

2. social costs of not being able to regulate certain bx.

a. Obscenity regulations dem. this, its impossible to really define obscene material, but it needs to be done so we tolerate vagueness.

3. Political cost of not regulating certain bx.

a. Public reactions, pressures on law enforcement.

b. When there is lower cost of non-reg. this creates more discretionary powers particularly when the law that’s enforceable gets at minor and low danger conduct.

ix. How to analyze a sta

though a thief probably wouldn’t check the language, we still need to have clearly written laws in order for them to apply.

III. Actus Reas

a. Crime requires conduct. The conduct can be an act, an omission (file taxes, register for draft, etc) where there is a legal duty (relationship, statute, contract, assumption of care) to act, or possession (burglary tools, narcotics). Normally, the conduct must occur under prescribed circumstances and sometimes it must cause a prescribed result. The “actus reus” is all of the conduct, circumstances, and results required by the definition of the offense.

b. Voluntary Act 106-113

i. Classic definition of voluntary act: act that results from an exercise of the will.

ii. Things that are not voluntary:

1. A pushes B into C (physically coerced movement)

2. Swarm of bees (reflex movement)

3. Unconsciousness

4. Muscular Contraction or Paralysis produced by disease.

iii. Martin v. State: man convicted of being drunk on public highway b/c police arrested him at his home and drug him to the highway.

iv. People v. Decina: D was epileptic. Had seizure while driving and ran over and killed several children. He was convicted for negligent homicide in a motor vehicle. Everyone agreed that the seizure was involuntary, but he was still liable because the act of driving a car with knowledge that he was subject to epileptic seizures was voluntary.

1. Time frame , concurrence of voluntary and mens rea

a. If you expand the time frame you can find a voluntary act and the question is whether you can find a person who performs a voluntary act with a guilty mind – was there time when the D assumed the risk.

v. Robinson v. : SC holds that being addicted to drugs is not voluntary and thus not criminally punishable.

vi. Powell v Texas: SC holds that a person who is a chronic alcoholic can still be held liable for public intoxication.

vii. Robinson è States cannot punish for status alone. Powell è but states can punish the acts flowing from status è e.g. violence stemming from drug addiction.

viii. Constitutional Limitation

1. Defining a crime in terms of a “status” rather than a particular activity violates the Eighth Amendment prohibition against cruel and unusual punishment

a. Ex: it’s illegal to buy drugs, but it’s not illegal to be addicted to them.

ix. Conclusion

1. Marine – where an act must be voluntary where conduct must be voluntary being carried by the police is not voluntary.

2. Docina – if we expand the time frame to include mens rea, then you can convict even the ultimate act that causes the harm is involuntary.

3. Robinson – prohibits states from punishing status

4. Powell – states can punish acts compelled by status.

5. Where states sometimes can and do draw a distinction is where the addiction was not voluntary.

c. Omissions 85-98; note on 105

i. In order to be held liable for an omission there must be a duty to act.

1. Mere moral obligation to act is not enough.

2. Some statutes expressly punish failure to act thereby creating a duty to act.