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Criminal Law
Temple University School of Law
Greenstein, Richard K.

1)      Defining Criminal Conduct / Elements of a Crime
a)      a voluntary act (“actus reus”)
b)      a culpable intent (“mens rea”)
c)      concurrence between the mens rea and the actus reus;
d)     causation of harm (if the crime has a result element)
Actus reus
Mens rea

or Excuse
Voluntary act
Culpable mental state
Causation (result)
Intoxication(dim capacity)   
Di Minimus
2)      Malum in se v. Malum prohibitum
a)      malum in se – bad in and of itself (e.g. it goes against a social norm).
b)      malum prohibitum – bad b/c its prohibited (alternate side of the street parking).
3)      Burden of Proof
Burden of Proof
Excuse (insanity)
Affirmative Defense (justification, self-defense)
Burden of production: going forth with the evidence
Burden of persuasion
Prosecution (except: insanity, D has to prove preponderance of ev.)
Theories of Punishment
1)      Intro
a)      A crime is defined by a punishment. Without punishment, not a crime.
b)      Options (examples):
i)        Community Service, Probation, Restitution, Fine, Education, Permanent Record, Fail course, Public Apology
2)      Objectives of punishment à see Perspectives Sheet
a)      Purposes of PA Statute§ 104 (p.32)
i)        Forbid and prevent conduct that unjustifiably inflicts or threatens substantial harm to individual or public interest (utility)
ii)      Safeguard conduct that is w/o fault from condemnation as criminal (retr)
iii)    Safeguard offenders against excessive, disproportionate, or arbitrary punishment (retr)
iv)    To give fair warning of the nature of the conduct declared to constitute an offense, and of the sentences that maybe imposed on conviction of an offense. (retr)
v)      Differentiate on reasonable grounds b/w serious and minor offenses, and to differentiate among offenders w/a view to a just individualization in their treatments (retr/ut)
vi)    Proportional to seriousness of offense. Requires us to compare and weigh: Harm, Intent, and Act. (ut/retr)
3)      Jury Nullification. Remember, even if defendant satisfies all the elements of a crime, the jury always has the option of jury nullification if they believe the person should not be punished (power of jury to acquit for any reason) – even if evidence is totally to the contrary.
Statutory Construction/Interpretation
1)      “no text reads itself” –stanley fish
2)      Determining Meaning of Terms in Statute
a)      § 105 (Principles of Construction) “provisions of this title shall be construed according to the fair import of their terms, but when the language is susceptible of differing constructions it shall be interpreted to further the general purposes.”
b)      Plain Meaning
i)        Common usage. “words and phrases shall be construed according to rules of grammar and according to their common and approved usage . . . “ (Tavares, p. 111).
ii)      Generally. Plain meaning unless it leads to absurd results. 
iii)    Plain Meaning is contextual. It must be functional. 
(1)    “Continue to write” (Lauren “exam writer”) is a contextual/customary understanding, which might allow for slight modifications. 
(2)   Don’t construe statute to conflict with Constitutional rights or problems (if there are two interpretations and one would render it unconstitutional, don’t go with that one)
c)      Purpose of statute.
3)      Doctrine of “fair warning” àsee § 104(iv) p2 above (purpose of PA code)
a)      Includes:
i)        Principle of Legality: no punishment in the absence of the law. There must be a statute making an act illegal AND proscribing punishment.
ii)      Doctrine of Non-vagueness. E.g. there is no fair warning if we cannot know the meaning (it is so vague) of the law. For vague, it has to pretty much impossible to know what it means. 
(1)   Specific terms can be vague, but general meaning of the statute (and its applicability) must be clear (Tavares). 
iii)    Doctrine of non-retroactivity
(1)   Cannot create a common law rule and apply it to these fact and parties (like civil law), because those parties had no notice before they committed the act
(2)   Dif b/c loss of freedom in crim law (burden) greater than monetary liability in torts/Ks.
iv)    Requirement of official notice (Publication; act of officially announcing). 
(a)    Lambert – need way of knowing (particular for malum prohibitum crimes)
(b)   Contra: Malum in se crimes. Sometimes you get fair warning just from norms of society (Susan knows destroying a book is wrong)
v)      Utilitarian: no deterrence if they don’t know it’s forbidden or what the punishment it; Retributive: only want to punish those who chose to do wrong.–>no moral condemnation if they didn’t choose
4)      Principle of Lenity (from English cts.) 
a)      Defined. True, reasonable ambiguities in statutory language should be read narrowly (many cts still read this to mean that statutes should be construed as favorable towards the D as possible).
i)        B/c burden of punishment in criminal law is greater, particularly in light of no notice. Utilitarianàretroactively expanding defs to include favor might violate legislature’s right to create laws; maybe deterrent effect (specific: maybe wouldn’t have done it if punishment was known, but might also not do it again in future; generalàmaybe preventative if known);
ii)      Retributiveàdid a moral wrong, but punishment might not be proportionate
5)      Contemporary Role of Common Law in Criminal Law.
a)      No new criminal laws by common law (are to be created by legislature).
i)        Common law crimes are abolished in §

)    Actual harm = retri., whereas potential harm = uti. (deterrence, etc.) (ie stalking)
(2)   Others do not have either actual or potential harm, but we punish anyway. Punishment b/c they are intolerable/morally wrong. (“victimless” crimes: prostitution, gambling….).
Mens Rea
1)      Must coincide with act/conduct (not result)
2)      Matter of inference: does this act customarily require or indicate intent
3)      General v. Specific Intent.
a)      General Intent. Motive not important.A crime of “general intent” is a crime for which it must merely be shown that D desired to commit the act which served as the actus reus.
b)       “Specific intent”: motive important: this means that D, in addition to desiring to bring about the actus reus, must have desired to do something further.
i)        ex. Attempt: crime “with intent to commit a criminal act.”
c)      Conditional Intent 302(f): satisfies mens rea, unless it negatives harm or evil sought to be prevented. Ex.: guilty of attempted murder if intend to shoot X if he doesn’t give you money (whether he does or not); not guilty of theft if take property and will give it back if found it’s not actually yours.
4)      Other General
a)      Default Mens Rea. 302(c): intentionally, knowingly or recklessly if not otherwise stated.
b)      Substituted intent § 302(e): A mens rea higher on the hierarchy may sub for one lower down.
c)      **States of mind can’t be proven àmust make inferences to establish state of mind. 
5)      Why does state of mind matter?
a)      Helps us classify crime and deal with societal justification for punishment. 
i)        Value judgment
(1)   Intention: acting antithetically to society’s value which is worse than
(2)   Reckless: acting indifferent to society’s value which is worse than
(3)   Negligent: acting w/out awareness of society’s value.
(a)    Retributivists might argue that they didn’t choose to create risk because they were not aware of it, so they are not morally blameworthy.
(b)   Utilitarian: may encourage due care; can’t deter behavior people think is reasonable
b)      Look to awareness of risk, degree and likelihood of harm, utility of risk (driving a car)
c)      Utilitarian
i)        A person is more dangerous if they intend a specific harm.
(1)   Thus, society needs more protection from him.