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Criminal Law
Temple University School of Law
Shellenberger, James A.

Criminal Law I
Professor Shellenberger
Fall 2012
Temple Law
I. Defining Criminal Conduct
Traditional: AR + MR [+ Causation + Result (if required)] = Guilt, absent excuse or justification
MPC: AR (general & specific nature conduct) + MR (culpability) + attendant circumstances [+ C + R] = Guilt, absent exculpation
–       Has the government proved beyond a reasonable doubt each of the essential elements of the crime charges, as specified in the applicable statutes and case law, supplemented by general principles of criminality? [failure of proof defense or defense of negating element(s) of the crime] Is D exculpated because evidence shows that D’s otherwise criminal conduct was “justified” or “excused?”
–      Affirmative “exculpation” defenses, rationales: justification: D’s actions were morally correct, excuse: D not blameworthy or morally responsible because external or internal forces were such that no one could be expected to act otherwise than the D did – “even if” defenses (D is not guilty even if prosecution proves elements BRD)
Evidence is considered relevant . . . only if it is both probative and material [probative is proposition gov’t is trying to prove, evidence tends to make it more likely (example: motive), material in that the proposition would affect the outcome] –       BOP – burden of production (put matter at issue) and burden of persuasion (BRD, convince factfinder): If prosecution fails to meet their burden of production, trail dismissed, if D has burden of production (affirmative defense) and doesn’t meet that burden, the argument is simply excluded, often, without direct evidence, prosecution uses circumstantial evidence and asks factfinder to make inferences (example: deadly weapon inference)
In Re Winship: presumption of innocence until proven guilty, accused protected against conviction except upon proof BRD of every fact [element] necessary to constitute crime with which he is charged – worse to convict an innocent party than to acquit a guilty party, BRD standard is indispensable to command respect/confidence of community
Apprendi v. New Jersey: any fact (other than prior criminal record) that increases maximum penalty applicable to an offense is an “element” of the offense, which therefore must be proved BRD.
Dixon v. US: in a federal prosecution for illegally receiving a firearm, a D who claims duress must bear burden of proving that defense by a preponderance of the evidence, defense of duress does not negate D’s criminal state of mind when applicable offense requires that D have acted knowingly or willfully, but allows D to avoid liability because coercive conditions or necessity negates conclusion of guilt – at common law burden of proving affirmative defenses rests on D
II. Theories of Punishment
I.  Punishment
A. Intentional infliction of pain or suffering of some unpleasant nature at the hands of the government as a consequence of actions performed
B.     Penalties imposed outside legal system (disbarrment of a lawyer by licensing authority; actions of a lynch mob, etc) are unpleasant but are not “punishment”
II.  Utilitarianism-
A. Forward-looking
B.     punishment is justified by greater good of preventing future crimes
1. all punishment is evil per se. But not punishing a criminal is a greater injustice than the act of intentional punishment
C. Most good for most people – moral calculus
1. Less focus on evilness of individual act but of results
D. Purposes of punishment
1. General Deterrence
a. Punishment of ∆ in order to convince general community to not perform same/similar conduct
b.  ∆ is used as a means to an end; setting an example and instilling fear and respect of the law
2. Specific Deterrence
a. Punishment of ∆ in order to deter future criminal activity by ∆.
(1)  Incapacitation
(a)  Prevents commission of crimes through restraint, imprisonment, isolation
(2)  Intimidation
(a)  Punishment serves as a reminder of what's in store if crime happens again
3. Rehabilitation
a. “Fixing” the culprits i.e. psychiatric care, drug rehab, vocational training, etc
III.  Retributivism
A. Pure retributivism – punishment for the sake of punishment. Because culprit deserves it. Anything else is utilitarian.
1. Punishment based on guilt, desert of punishment, moral culpability
2.      Punish the offender because he deserves punishment
a. Kant – equal punishment for crime committed (kill murderers)
(1)  Eye for an eye (lex talonis)
B. Focus on evil intent, state of mind, purpose
C.     Backwards-looking
D.     Punish the individual, not society
1. Moore – “moral desert of an offender is a sufficient reason to punish him/her”
2.      Utilitarianism and retributivism are not diametrically opposed. They are concerned with different aspects of justice. Util. cares more about preventing future crime while ret. care moral culpability and the duty to punish
E. Forms of Retributivism
1. Public vengeance/assaultive retribution/societal retaliation
a. Morally right to hate criminals
b.  Because ∆ hurt society, it is just to hurt him back
2. Protective retribution
a. Punishment as means of securing a moral balance in society (sounds utilitarian…)
3. Victim Vindication
a. “Retribution is

     Things to look for when interpreting a statute
1. Plain meaning: Plain meaning of contain could reasonable be “to have within: hold” or “to consist of wholly or in part: comprise; include.” Likewise, other matter ambiguous. Is the proper analog to a graphics file on a computer a page in a book or a book in a library?
2.   “Canons of construction” (Context)
a. Other associated terms. Per Dauray: other terms are picture containers, and his pictures were taken from the container and thus are not themselves a container. Per government: other matter is a catch all that includes any medium of presenting visual depections, a photo can be said to contain multiple images that it can depict.
(1)  Noscitur a sociis – reference to their relationship with other associated words or phrases
(2)           Ejusdem generis – “where general words follow a specific enumeration of persons or things, the general words should be limited to persons or things similar to those specifically enumerated
b.  Statutory structure: Dauray: different drafting of the Protedction of Children Against Sexual Exploitation Action contains 4 substantive subsections. The one in question (the fourth) has different drafting than the others, demonstrating congress could have prohibited possession of individual pictures if it wanted to. Government: Congress only wanted to protect the accidental possessor from liability, which is what this subsection was for.
c. Statutory Amendments: Congress amended the act in 1998 by replacing the “3 or more” with “1 or more” of the same list. Dauray: the list would be unnecessarily included unless it serves to distinguish a container from its contents. Government: the list with its catch all is designed to reach even one photo.
d.        Avoiding absurdity. If one position is absurd, the other one must be right, but here both are absurd. Dauray’s reading would punish a possession of three books each with one picture, but not someone with thousands of unbound pictures. Government’s reading would punish someone with three unbound pictures, but not someone with two large bound albums.