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Criminal Law
SUNY Buffalo Law School
Ewing, Charles P.

25. After a hard day at work as an elementary school teacher, during
which she was berated by her boss, the principal, for failing to
control the children in her class, an angry Cruella jumped into her
car, started the vehicle and then drove through a school playground
crowded with children, screaming “Get out of the way you little
bastards!” All but one of the children got out of Cruela’s path.
Cutesie, a second grader, was struck by Cruella’s Mercedes and
killed. Which of the following statements best describes the criminal
liability and/or defense applicable in this situation?

(A) Cruella is guilty of voluntary manslaughter rather then murder
because she acted in a state of extreme emotional disturbance.

(B) Cruella is guilty of felony murder, assault with a deadly weapon
(the car) being the underlying felony.

(C) Cruella is guilty of murder because her action posed a grave risk
of death to the children and she acted with a total disregard for
their lives and safety.

(D) Cruella is guilty of criminally negligent homicide because a
reasonable driver would not have acted as she did.


A: A social wrong/harm defined by law and made punishable by law- contains an actus reus and mens rea

· Key element – criminal law is punishable under the law (taking away of civil liberties); punishment in name of society (vs. civil law where punishment in name of victim)
· Crime is a harm, but not all harms are crimes

1. The Purposes of Punishment- (Utilitarianism v. Retribution)
a. Utilitarianism- Deterrence, Incapacitation, Rehabilitation
i. basic premise is that punishment itself is evil because it deliberately inflicts harm on a human being; therefore, we should hurt criminals only if some “good” is achieved by the act
ii. Ex. (a) deterring persons who might be thinking about committing crimes, (b) incapacitating those who if released are likely to commit additional serious and violent crimes, or (c) rehabilitating those who have already committed offenses.
b. (1) Deterrence
i. Punish crimes to deter others from acting similarly
1. D can decide not to commit future crimes- specific deterrence
2. other persons, contemplating committing crimes and learning of the threatened punishment, will decide not to do so- general deterrence
ii. to be effective, deterrence requires that D receive notice of the threat of punishment. However, how members of society learn of the possible punishments threatened if they violate the criminal law is uncertain. (few citizens read the statute books, etc.)
c. (2) Incapacitation
d. A second explanation of why we punish is that those who commit criminal acts have rejected important social norms and have thereby demonstrated their willingness to continue to do so in the future. Thus, for the good of those who abide by the law, these offenders may be prevented (incapacitated) from reoffending- a.) Implies we can separate dangerous from non-dangerous b.) costs are staggering
e. (3) Rehabilitation
i. Theory holds that offenders can be “changed” into non-offenders if given proper “treatment”; consider the realism of this- not much rehabilitation goes on in prison.
f. (4) Denunciation
i. Must denounce behavior; take a moral stand to send message to society

B. Retribution (as opposed to Utilitarianism)
ii. Argues that persons who choose to do wrong (commit criminal acts) deserve punishment, and that it should be imposed on them even if it serves no utilitarian purpose [an eye for an eye]

· The Queen v. Dudley and Stephens- Ds stranded at sea, and eat weak boy in order to survive. Ds reason that murder was killing 1 for the greater good of the other 3. Punishment was incarceration, released after 6 months. Why? Crown probably recognized that this was a customary practice. If this was a rational decision, was it more qualified of punishment?
· The case of Alex Carbarga- Reliance on tree frog; molestation; no exposure to outside society; did he know what he was doing was wrong?

à When it is grossly disproportionate, the courts will step in

COMMON LAW: Whatever openly outrages decency and is injurious to public morals is a misdemeanor and punishable by law.
MODERN LAW: Do not legislate from the bench-just because it outrages public decency does not mean it will be punishable by law (no ex post facto laws).

· Solem v. Helm (1983): Overruled court decision because it was a non-violent crime ($100 bad check) and no possibility of parole. Court adopted test for proportionality: (1) gravity of the offense and harshness of the crime (2) sentences imposed on other criminals in same jurisdiction (3) sentences imposed in other jurisdictions.
· william James Rummel- history of stolen checks. Air conditioner fraud. Incapacitated for life; Consider: cost ($) to society; and proportionality- many rapists and murderers don’t get these sentences.
· Commonwealth v. Keller (1964) Charged with adultery and “indecent disposition of a dead body” with babies.
Conviction affirmed even though the crime was not present under the laws of PA. Reasoned that common law is flexible and allows punishment of a crime that is an insult to public decency. [McHale doctrine] · Ewing v. California: “3 strikes you’re out” for prior felony convictions. Stolen golf clubs= prison for 25 years-life. Appeal based on 8th amendment; [cruel and unusual punishment contains narrow proportionality principle]. SC affirms; defers to state legisltature’s sentencing rational and judgments re: protecting public safety. Note- can we square 3 strike system with the cost of incarceration?


· Elements of a crime:
1. Actus Reus- voluntary act or omission
2. Mens Rea- culpability; “the criminal mind”

Attending circumstances- elements that aggravate the crime-certain facts need to be proven in order to convict- burglary in the night time is punished more severely than day time- need to prove time or amount
Causation- connection between the actus reus and the result
Result- many crimes require that some bad/harm must occur (but not all, like DWI)

· The requirement for an act:

Punishment must be for (1) past (2) voluntary (3) bad (4) conduct (5) specified (6) in advance (7) by statute
The law regards almost every act as voluntary (generally except for seizures or reflexes)
Omission: No liability to act unless have legal duty

(1) A person is not guilty of an offense unless his liability is based on conduct that includes a voluntary act or the omission to perform an act of which he is physically capable
(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 result

als had “constructive possession” of forbidden items even though they did not individually exercise physical dominion and control over the items. Instead, courts often base their conclusion on the proximity of these individuals to the items or their ability to reduce an object to control and dominion. The power and intention to exercise control, or dominion over an object not in one’s actual possession. Courts have held that you can “possess” an item while it is hidden at home, with an agent at the bank, etc.
· Possession and the Model Penal Code: MPC explains when possession is an act or conduct; Ex- if a person knows that he is accepting custody of illegal drugs, then his “possession” is clearly a voluntary act under the MPC, and he can be convicted of illegally possessing drugs. Also states that a person’s possession is sufficient for criminal responsibility if, after becoming aware of the fact that he has drugs in his control, he does not terminate his possession within a sufficient period. His failure to act is an omission in the face of the legal duty to do so.

· US v. Maldonodo, People v. Levya, People v. Heizman­: All drug possession cases. Note importance of constructive possession. In many cases, intention and knowledge are inferred from the physical proximity and location of the drugs, especially in an area to which defendant has access.
o Consider use of Presumption, (NY Penal Law 220.25) “The presence of a dangerous drug in an automobile, other than a public omnibus, is presumptive evidence of knowing possession thereof by each and every person in the automobile at the time such drug was found.Court notes unique and mobile nature of cars, and empirical data that supports statutory likelihood that all persons inside car know about drugs and are involved in their transport. However, must balance presumption/prosecutorial necessity without shifting burden; no liability imposed until elements proved beyond reasonable doubt.

· People v. Betances- coke in sugar bowl, many people in house, had $50 bill being traced by police. Court held that constructive possession could not be proved, due to other reasonable evidentiary inferences that were insufficient to support guilty verdict.

Possession: Sometimes comes up to question with what constitutes possession.

Hypothetical: D & E buy 762 grams of cocaine in NY and on their way home from the buy they drive by their friend F waiting for a bus to go to hospital to see his dying grandmother- give him a ride-get pulled over and find probable cause to search the car and find the cocaine and all tried on cocaine possession charge

Presumption is that possession applies to all and burden of proof falls on Defendants to prove it wasn’t their cocaine- unless its on your person and then just applies to you

Possession of gun is the same requirement.