Criminal Law Exam Outline
Fall 2016
Prof. Boucai
CONTENTS:
Introduction – 5
Overview – 5
Sources – 5
Jury Instructions – 6
CB: 1-14
MPC § 1.12(1) (pg. 47)
Theories of Punishment – 7
Overview – 7
Utilitarianism – 7
Retributivism – 8
CB: 33-35; 38-51; 54-64
MPC §§ 1.02(1)-(2); 1.04 (pg. 47)
Proportionality – 10
Overview – 10
General Principles – 10
Constitutional Principles – 10
CB: 73-92
MPC §§ 6.01; 6.06; 6.08 (pg. 47)
Criminal Law & the Enforcement of Morals – 11
Collapse of the Harm Principle, Harcourt – 11
Lawrence v. Texas – 11
Jury Nullification – 12
Overview – 12
CB: 19-26
Criminal Statuses: Legality & Statutory Interpretation – 13
Previously Defined Conduct – 13
Statutory Clarity – 13
Rule of Lenity – 13
Selective Enforcement – 13
Statutory Interpretation – 14
CB: 93-108; 113-132
MPC §§ 1.05(1); 5.02; 5.04 (pg. 47)
Actus Reus – 15
Overview – 15
Voluntary Act – 15
Omissions – 15
Social Harm – 16
CB: 133-156
MPC §§ 1.13(2)-(5); 2.01 (pg. 48)
Mens Rea – 17
Overview – 17
Common Law Approach – 17
MPC Approach – 18
Specific & General Intent Crimes; Willful Blindness; Strict Liability – 18
Attendant Circumstances/Wilful Blindness – 18
Strict Liability – 18
Mistakes – 19
Mistake of Fact – 20
Mistake (Ignorance) of Law – 20
Common Law & MPC Approaches
CB: 157-167; 168-173
MPC §§ 2.02(1)-(5); 2.02(7)-(8); 2.03(2) (pg. 48)
Specific & General Intent Crimes; Willful Blindness; Strict Liability
CB: 167-168; 173-178; 185-205
MPC §§ 2.05; 1.04(5) (pg. 48)
CB: 206-227
MPC §§ 2.04, 2.02(9) (pg. 48)
Causation – 21
Overview – 21
Actual Cause (Cause in Fact) – 21
Proximate Cause (Legal Cause) – 21
Concurrence of the Elements – 22
CB: 228-249; 250-252
MPC §§ 2.03(1)(a); 2.03(2)(b); 2.03(3)(b) (pg. 49)
Intentional Killings – 23
Overview of All Homicides – 23
Criminal Homicide – 24
Premeditation/Deliberation – 25
Manslaughter “Heat of Passion” – 25
Rule of Provocation – 26
Reasonable Person – 26
MPC Approach – 26
CB: 253-256 (read); 256-265 (skim); 267-283 (read); 285-313 (read)
MPC §§ 210.0-210.4 (pg. 49)
Unintentional Killings – 27
Unjustified Risk-Taking – 27
Abandoned and Malignant Heart – 27
Negligence – 27
Unlawful Conduct – 27
Felony Murder – 27
Misdemeanor Manslaughter – 28
CB: 316-340; 344-345; 351-352; 353-358; 363-364
MPC §§ 210.3-210.4; 210.2(1)(b) (pg. 49-50)
Rape – 29
Overview –29
State Statutes – 29
Forcible Rape – 30
Resistance – 30
CB: 408-413; 421-427; 433-450; 454-464; 464-476
MPC §§ 213.0-213.4; 213.6; 213.9 (pg. 50)
Justification – 31
Overview – 31
Categories – 31
Principles – 31
Self-Defense – 32
Retreat – 32
Castle – 32
Imminency – 32
Necessity (“Choice of Evils”) – 34
Fault in Creating Choice – 34
CB: 501-504; 517-518; 521-532; 534-539; 548-552; 556-565; 567-572; 586-592
MPC §§ 2.09; 3.04; 3.09; 3.11 (pg. 50-51)
Excuse – 35
Overview – 35-36
Why Excuse is Acceptable – 37
Duress – 37
Intoxication – 37
Voluntary v. Forcible – 37
Insanity – 38
Tests – 38
Competency – 38-39
CB: 609-620; 634-663; 676-679
MPC §§ 2.08; 4.01-4.04 (pg. 51)
Solicitation – 40
Overview – 40
Merger – 40
Renunciation – 40
CB: 830-835
MPC § 5.02 (pg. 51)
Attempt – 41
Overview – 41
Principles – 41
Preparation v. Perpetration – 41
Mens Rea – 42
Two Intents – 42
Attendant Circumstances – 42
Substantial Step – 42
Special Defenses – 43
Impossibility – 43
Abandonment – 43
CB: 761-764; 771-774; 775-777; 792-799; 799-815; 816-820
MPC § 5.01 (pg. 51)
Conspiracy – 44
Overview – 44
Principles – 45
Relationship to Other Inchoate Offenses – 45
Actus Reus – 45
Bilateral v. Unilateral – 45
CB: 836-842; 856-863; 864-868; 871-875
MPC §§ 5.03(1)-(3); 5.03(5) (pg. 52)
: Fundamental principles: Individuals are entitled to certain constitutional protections in connection with the government’s power to make and enforce the criminal laws.
Due process: The government may not: (1) deprive any person of life, liberty, or property without due process of law or (2) enact criminal laws so vague that they do not provide adequate notice of what conduct is prohibited. [City of Chi. v. Morales, 527 U.S. 41 (1999)]
Rule of lenity: The government must resolve an ambiguity in a criminal statute in a defendant’s favor. [U.S. v. Dauray, 215 F.3d 257 (2000)]
Proportional punishment: The government may not impose: (1) cruel and unusual punishment, (2) excessive bail, or (3) excessive fines. [Robinson v. Cali., 370 U.S. 660 (1962)]
Ex post facto laws: The government may not enact a law that retroactively (1) criminalizes conduct or (2) increases the punishment for a prior crime.
Bills of attainder: The government may not enact a law that declares an individual guilty or imposes punishment without a trial.
Nature, Sources, and Limits of the Criminal Law (Hart) (1)
Defining crime: “It is conduct which, if duly shown to have taken place, will incur a formal and solemn pronouncement of the moral condemnation of the community.”
“…the condemnation plus the added consequences may well be considered, compendiously, as constituting the punishment.”
“…vital difference between the situation of a patient who has been committed to a mental hospital and the situation of an inmate of a state penitentiary. …the patient has not incurred the moral condemnation of his community, whereas the convict has.”
Legislature’s role: deals with crimes in advance of commission. Not by condemnation and punishment, but the preemptive threat of condemnation and punishment to be imposed by other agencies.
Four conditions to be satisfied: (1) the primary addressee who is supposed to conform his conduct to the direction must know (a) of its existence, and (b) of its content in relevant respects; (2) he must know about the circumstances of fact which make the abstract terms of the direction appli
he actual imposition of punishment creates fear in the offender that if he repeats his act, he will be punished again.
Incapacitation and other forms of risk management: Imprisonment temporarily puts convicted criminals out of general circulation, and the death penalty does so permanently.
: Punishment may help to reform the criminal so that his wish to commit crimes will be lessened, and perhaps so that he can be a happier, more useful person.
C. Michael Moore – The Moral Worth of Retribution (41)
Lex talionis – an eye for an eye
Retributivism is not the view that only the guilty are to be punished.
The moral desert of an offender is a sufficient reason to punish him or her; the principle makes such moral desert only a necessary condition of punishment. Other reasons include crime prevention.
Punishing is justified only because offenders deserve it.
Moral culpability (“desert”) is in such a view both a sufficient as well as a necessary condition of liability to punitive sanctions. Gives society the duty to punish.
Negative Retributivism or Side-Constrained Consequentialism: punishments purpose is utilitarian: to reduce crime and thus protect the rights of all to be secure in their persons and property. But that purpose must be pursued within retribution’s limits: the state cannot punish someone unless he commits a crime, nor can it punish him disproportionately in relation to the crime commands. Moreover, it cannot punish someone if no discernible good would come of it, even if the offender is guilty as charged. Thus, a person can legitimately be punished only if he commits a crime, only in proportion to the crime, and only if doing so would produce a world with less crime.
Mixed/hybrid theory: combines utilitarianism and retributivism. Utilitarianism answers the general justifying question; retributivism answers the distributive question.
D. Immanuel Kant – The Philosophy of Law (43)
James Fitzjames Stephen – A History of the Criminal Law of England (45)
Herbert Morris – Persons and Punishment (46)
Jeffrie G. Murphy & Jean Hampton – Forgiveness and Mercy (49)
II. HOW MUCH AND WHAT PUNISHMENT SHOULD BE IMPOSED (54)
People v. Superior Court (Du); Cal. Ct. App., 2d Dis., 1992 (54)
Also, People v. Du; Sup. Ct., L.A., 1991
: A prison sentence for a crime involving a deadly weapon should not be reduced to probation except in unusual cases where the interests of justice would best be served. (This is an unusual case. Probation only.)
