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

Criminal Law Professor Shellenberger Fall 2012

3 types of categories in which to initiate a defense: (1) ID defenses (which is actually also a failure of proof defense); (2) failure of proof defenses – state has not proved some element of the crime; (3) affirmative defenses – “even if” defenses. Even if the state proved the elements, D is not blameworthy or is excused.


Murder – the intentional killing of another human being. No specific conduct requirement. General (D must do something)

ID + Some conduct + intent to kill + C + Death of another

Possible Defenses:

a. Alibi: Failure of proof. Challenges identification.

b. Evidence showing that the victim was already dead: Failure of proof. Causation.

c. D claims mistake – “I didn’t know the gun was loaded.”: Failure of proof. MR, no intent to kill.

d. D claims killed victim because V threatened with a knife: Affirmative Defense. (justification)

e. D claims killed because of mental illness: Affirmative Defense. Exculpation.

Defenses can be argued in the alternative. E.g. mental illness – could argue no intent to kill, and exculpation.

Theft – Taking the property of another, without consent, with intent to permanently deprive. (No causation, no result)

ID + Take + Intent to perm. Deprive + property of another + without consent.

Burden of Proof: If the state does not meet its burden of production, the charges can be dismissed as a matter of law. Judgment of Acquittal

Production: produce evidence to allow fact-finder to decide

Persuasion: standard is beyond a reasonable doubt (“BRD”) (as per the due process clause)

Why BRD standard

· Value judgment in our society. Concern about the power of the state to overwhelm individuals. Value on liberty.

· Want the people to have faith in the system. Assured that innocent people are not being convicted.

Difficulty in Determining Burden of Proof and who bears the burden of production of each element:

· D has burden of production in an alibi defense, but the state has the burden of persuasion. Otherwise, it’s a failure of proof defense because the state has not met the ID element BRD.

· D claims it was a mistake. Failure of proof defense, no intent to kill. State has to prove intent BRD.

· D claims self-defense. True affirmative defense.

o Dixon: In true affirmative defenses, the constitutional requirement for BRD does not apply. This is because there is no challenge to the elements of the crime. The self-defense claim is an additional element.

Dixon v. U.S.: D charged with making false statements in violation of statute in order to purchase firearm. D claimed defense of duress, claimed boyfriend made her do it or would harm children, and argued that the burden of production should be on prosecution to disprove duress BRD. Court held that a defense of duress does not negate MR, it is an affirmative defense. State proved all the elements of the crime – showing that D acted knowing or willfully – and is not, therefore, required to disprove duress.

Elements of crime vs. Sentencing factors

Robbery – threat by force

(a) Defines crime (taking property of another by force or threat of force)

(b) Sentencing


(1) Max 20 years

(2) J. may sentence to additional 5 years if committed with a firearm. Is this an element or a sentencing factor? As per Apprendi, anything that increases the maximum is an element and not a sentencing factor. à govt. BoP

(d) If statute read:

(1) Max 20 years

(2) If firearm, J. must impose minimum of 5 years. So, this is not an element, it’s merely a sentencing factor.

Evidence: Relevance is important to the Rule of Evidence

Probative: tends to make something more/less likely;

Material: must affect the outcome – substantive criminal law

Irrelevant evidence is always inadmissible

E.g. Murder Charge

· Intent to kill = conscious purpose to cause death. Use circumstantial evidence for the jury to draw reasonable inferences.

· Government can’t compel you to incriminate yourself (5th amendment) and govt. can’t use that against you or try to get jury to infer negative things

· Deadly weapon inference: We can infer people intend the natural and probable causes of the act. If a person points a gun at another’s head and pulls the trigger, we can infer that the D intended to kill.


Retribution: Punished because D deserves it. Motivated by justice; revenge; vengeance; payment for a wrong.

· Sentence should be proportionate to the seriousness or heinousness of the crime.

· Retaliatory suffering; focus on past, individualized

· Punishment for punishment’s sake.

· D creates an imbalance in society. Punishment restores the balance. Reaffirms social norms and values.

· Looks backward and justifies solely based on previous, voluntary commission of a crime

Considerations in administering punishment under retribution:

1. Look to the harm caused to the victim and society (nature and severity; depth of social abhorrence)

2. Moral blameworthiness/culpability (evaluation of the individual)

Assumptions under Retribution:

· That we all have equal conceptions of norms.

· Equal resources that comply with the norms.

· Equally buy into the social K.

Utilitarian Theories: Deterrence; Restraint/Incapacitation; Rehabilitation/Reformation. Better society, looks to future, global good, use the harm caused to other during trial; what behavior has a tie to future conduct that it should be prevented so it doesn’t recur

· Maximize the net happiness of society, laws used to exclude painful and unpleasant events

· Looks forward in time, care about past just as it predicts future

Deterrence: risk – reward; cost – benefit. Calculation/balance for the greater good

· General: focus on would-be criminals, society as a whole won’t commit crime if they see someone else punished for it; Specific: focus on the individual convict not doing it again.

· 2 ways to increase deterrence: (1) increase the likelihood and certainty of punishment; (2) increase the severity

o One way to make punishment more certain is to make the state’s burden easier. Not by changing the BRD standard (which is constitutionally mandated), but by removing elements of the crime. (e.g. no state of mind element).

o Sometimes moral and societal stigma sometimes act as an even bigger deterrence

Assumptions that underlie Deterrence:

· People are aware of the rules/punishment.

· People actually do the calculations.

· People are motivated to act based on rational thinking


· Here determinations for sentencing is on the potential to repeat the crime.

· Considerations would include: (1) past history/criminal record; (2) statistics on recid

a last resort after all other possibilities exhausted; (2) Used when adopting the narrowest possible adoption of the statute when there is any ambiguity.

U.S. v. Dauray (US 2000): Statute reads: 3 or more books, etc., or other matter which contains a visual depiction of minors engaged in sexually explicit conduct. Issue whether individual pictures constitute “other matter” within the meaning of the statute.

Holding: Where the court cannot clear-up – through inquiry as to the plain meaning of the statute; canons of construction; or legislative history – the ambiguity in a criminal statute, the court must apply the rule of lenity and resolve the ambiguity in D’s favor. Interpret a statute in the clearest, most narrow way to ensure fair warning.

Canons of construction examined: Lists and other associated terms; statutory structure (look at other amendments within same statute); avoiding absurdity.

Note: Court does not consider the legislative purpose. Statutes should be interpreted to effectuate legislature’s purpose.

Keeler v. Superior Court (US 1970): Man kills pregnant ex, knowing she was pregnant. Substantive issue: does a fetus constitute a “human being”? Legality issue: is the court creating a new crime, does that violate due process?

Holding: Court is not empowered to expand the definition of a preexisting statute by means of an unforeseeable judicial enlargement. Even if so empowered, the enlargement would violate due process, as it does not give D fair warning of the act punishable. Ex post facto: prohibits legislature from creating law retroactively

Reasoning: Substantive issue (Court bases decision on jurisdictional, legislature defines crime) and constitutional considerations (when an unforeseeable state-court construction of a criminal statute is applied retroactively to subject a person to criminal liability for past conduct, deprives him of due process of law, in the sense of fair warning that his conduct constitutes a crime.

Rogers v. Tennessee (2001): D stabbed victim who died later. Common law rule homicide only if victim dies within a year. Medical advances were not good when this common law precedent began.

Holding: Judicial alteration of a common law doctrine of criminal law violates the principle of fair warning, and therefore must not be given retroactive effect, only where it is unexpected and indefensible by reference to the law which had been expressed prior to the conduct in issue. Softens the direct analogy with the ex post facto clause as expressed in Keeler.

Reasoning: Ex post facto clause does not apply to courts. Strict application of ex post facto to courts would unduly impair the incremental and reasoned development of precedent that is the foundation of the common law system. In this case, changing this is not unexpected because medicine has changed so much.