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Criminal Law
SUNY Buffalo Law School
Ewing, Charles P.

Criminal Law Fall 2012

Charles Ewing

Book – Criminal Law: Cases and Materials by John Kaplan, Robert Weisberg and Guyora Binder

Part I. Just Punishment

I. Ch. 1 The Purposes and Limits of Punishment


1) Kansas v. Hendricks:

Overview: Hendricks had been imprisoned for a long history of child molestation. He admitted to having an uncontrollable urge to molest kids, and that he would likely recommit. Kansas sough to commit Hendricks under a newly created Act that mandated the involuntary commitment of sexual offenders, Hendricks argued that the Act violated the Constitutional prohibition against double jeopardy and ex post facto laws.

Rule: A state law providing for the involuntary commitment of a person whose mental abnormality makes them likely to re commit acts of sexual violence does not create a criminal proceeding and is therefore not subject to the Double Jeopardy and Ex Post Facto Clauses.

Reasoning: The Act bases involuntary commitment not on criminal intent but on the presence of a mental abnormality or personality disorder. This detainment doesn’t constitute punishment, and the act addresses concerns different from the concerns of Criminal Law. Therefore, people absolved from criminal acts can be committed under it.

Proportionality (77-78)

Proportionality and the 8th Amendment:

Cruel & Unusual Punishment Clause has been applied in at least four ways, to:

1. Proscribe some punishments inherently cruel, such as torture

2. Proscribe constitutional punishment as disproportionate toa particular offenses/offenders

3. Condition capital punishment on certain procedural safeguards

4. Ensure duly imposed prison sentences aren’t served under inhumane conditions of confinement

Test for Inherent Cruelty:

Penalties must:

(1) Comport with evolving standards of decency as reflected in contemporary public attitudes and

(2) Comport with the dignity of man by not being grossly excessive relative to the crime committed and by serving some legitimate penal purpose

à8th amendment also prohibits imposition of “excessive fines”


2) 86-89: Kennedy v. Louisiana

Facts: man brutally raped his stepdaughter.

Rule: States violate the Eight Amendment’s ban on cruel and unusual punishment by imposing the death sentence for the crime of child rape.

3) Ewing v. California p. 89

Facts: Ewing stole golf clubs worth $1,000 while on parole & was given a sentence of twenty-five years to life under a “three strikes” law; argued that sentence amounted to cruel and unusual punishment prohibited by the Eighth Amendment.

Rule: A punishment does not qualify as cruel and unusual punishment unless it is grossly disproportionate to the crime.

Reasoning: State legislation should be allowed to exercise its discretion in setting policy with regard to criminal punishment.

4) Website: Commonwealth v. Keller:

Overview: Defendant was charged with adultery and “indecent disposition of a dead body” with babies after she buried two babies that she didn’t want in her basement.

Rule: Common law is flexible and allows punishment of a crime that is an insult to public decency (McHale Doctrine).

Reasoning: The conviction affirmed even though the crime was not present under the laws of PA, because the McHale Doctrine can be applicable to any conduct which is inherently offense to public morals and decency.

Requirement of Harm

5) 141-145: Lawrence v. Texas

Facts: Two men were arrested and charged with violating a state law which prohibited a person from engaging in “deviate sexual intercourse” with another person of the same sex.

Rule: A state law criminalizing consensual sexual conduct between two persons of the same gender violates the Due Process Clause of the Fourteenth Amendment to the federal constitution.

Part II. The Elements of the Criminal Offense

Ch. 2. The Criminal Act –Actus Reus

The Criminal Act (115-117)

(1) Conditioning of just punishment on the proscription, charging, and proof of an actus reus [requirement of an act]

(2) The particular actus reus the prosecution must charge and prove beyond a reasonable doubt in order to establish liability for a particular crime

-principle of legality à criminally punishable conduct should be specified in advance “no crime without a law, no punishment without a law” ; embraces principles of publicity, prospectivity, specificity, and democracy – laws must be made with collective consent of those subject to it

-req. of an act may refer to some or all of conditions for just punishment à punishment must be for:

(1) past (2) voluntary (3) wrongful or potentially harmful (4) conduct (5) specified (6) in advance (7) by statute

-purpose of a volition requirement – MPC says “sense of personal security would be undermined in a society where such movement or inactivity could lead to formal social condemnation”

Sec 2.01. Requirement of a Voluntary Act ….

(1) A person is not guilty of an offense unless his liability is based on conduct that includes a voluntary act …

(4) Possession is an act, within the meaning of this Section, if the possessor knowingly procured or received the thing that possessed or was aware of his control thereof for a sufficient period to have been able to terminate his possession

-Involuntary Acts: MPC exclusions

Section 2.01 …

(2) The following are not voluntary acts within the meaning of this Section

(a) A reflex or convulsion

(b) A bodily movement during unconsciousness or sleep

(c) Conduct during hypnosis or resulting from hypnotic suggestion

(d) A bodily movement that otherwise is not a product of the effort or determination of the actor, either conscious or habitual

6) Proctor v. State p. 117

Facts: Proctor challenged a conviction for owning premises with the intention to

sell liquor thereon during alcohol ban.

Rule: In order to define a crime, a statute must declare a particular act unlawful. Legislature may not criminalize otherwise legal conduct by coupling that conduct with some criminal intent.

Reasoning: need actus reus for a crime, not just mens rea àcan NOT criminalize intent alone.

7) 148-149: People v. Newton:

Overview: Newton, who had a physical disability boarded a plane to the Bahamas, due to his unruly behavior, the captain landed the plain in NYC, where he was arrested for unlawfully carrying a firearm. Newton appealed a conviction for possession of a firearm on the ground that he did not enter voluntarily into the circumstances under which he was arrested.

Rule: An act must be voluntary! àNewton did not VOLUNTAIRLY violate statute

Reasoning: Conviction was overturned because the flight wasn’t intended to land in the US. Newton had no control of plane and the landing was an interruption that can’t be attributed to voluntary action by Newton.

8) 149-150: Martin v. State

Facts: Martin arrested for public drunkenness after he was apprehended by police in his home and taken into public by the police.


e images to his hard drive, he had no control over them.

Rule: One knowingly and voluntarily possessed contraband based upon (a) his willful viewing of child pornography and (b) his knowledge that viewing such images would result in their being stored in his cache. ­–If you can manipulate, control, copy, or use it à possession

Reasoning: The conviction is upheld because Tucker voluntarily possessed contraband. Defendant knew that the files were being stored on his cache file and manually deleted-therefore had possession because you cannot delete something that you don’t possess.

17) Commonwealth v. Simone [63 Va. Cir. 216 (2003)]

Facts: A dispute arose as to whether the defendant had knowing possession of certain sexually explicit visual material, involving juveniles, which was found in the temporary internet file of his computer cache.

Rule: For the purposes of child pornography possession statute: possession means reaching out for and controlling the prohibited images.

18) State v. Lindgren provided

Facts: D took photos of 14 yr old worker in her bra & underwear, & eventually nude, touched her breasts, legs, butt, & eventually vagina; phone call recorded by police where D said he destroyed the photos

Rules:: In order for a search to be reasonable, there must be sufficient facts to excite an honest belief in a reasonable mind that the objects sought are linked with the commission of a crime, and that they will be found in the place to be searched.

-In order to be charged with possession of child possession:

(a) A person must know that he or she possesses material

(b) The person knows the character and content of the sexually explicit conduct in the material. (c) The person knows or reasonably should know that the child engaged in sexually explicit conduct has not attained the age of 18 years

Actus Reus/ Status

19) 122-124: Jones v. U.S. (Omissions):

Overview: Jones agreed to take care of a newborn child for another mother. The child died due to malnutrition & sever diaper rash. Jones argued that she could not be convicted for failing to take care of a child without proof that she owed a duty of care to the child.

Reasoning: Court held that the failure to act may constitute a breach of a legal duty and be held criminally liable in the following four situations: (1) where a statute imposes a legal duty to care for another, (2) where one has some special relationship to another, (3) where one has assumed a contractual duty to care for another, and (4) where one has voluntarily assumed the care of another and so secluded the helpless person as to prevent others from rendering aid.

Reasoning: Omission of an act is only punishable where the duty neglected is a legal duty and not merely a moral obligation. Therefore, jury needs to be instructed that finding a legal duty was the critical element of the crime charged.