CRIM LAW OUTLINE – Prof. Steinberg Fall 2012
1: INTRODUCTION
A. Nature of Criminal Law
1. Uniqueness of Criminal Law
a. Moral Condemnation
b. Redress, punishment and injury are social rather than personal.
c. Reasonable doubt requirement of proof
2. Common law
a. Most states have statutory penal codes rather then the common law.
b. At common law, there were only felonies (capital crimes) and misdemeanors.
3. Modern Penal Codes
a. Felonies
b. Misdemeanors
c. Violations
B. Trial by Jury
6th Amendment guarantees a right to trial by jury for all crimes except non-petty offenses.
C. Proving Guilt
The State has the burden to prove each element of a crime beyond a reasonable doubt. In re Winship
2: PRINCIPLES OF PUNISHMENT
A. Justifications for punishment
1. Social punishment replaces personal vengeance.
2. Punishment leads to a just society. (U)
3. Punishment minimizes mischief/Deterrence (U)
4. Criminals deserve punishment as their just desert for harming society (R)
B. Proportionality
1. Punishment should “pay back” society. (R)
2. Punishment should outweigh the profit of the crime. (U)
3. The greater the crime the greater the punishment (U)
4. Punishment should induce criminals to choose the lesser crime (U)
5. Set punishment so that criminal does not more than what is necessary. (U)
6. Punishment should be as minimal as possible to achieve goals. (U)
Remember: There are crimes that can not be deterred.
3: LEGALITY
A. Rationale:
1. You can not deter persons from criminal act unless people know what is criminal. (U)
2. Without legality, there is no choice and without choice there is no basis for moral blame. (R)
3. Legality strives to balance the tension between allowing State to convict persons and protecting individual autonomy.
B. Statutes
1. Should be clear and unambiguous.
2. Ambiguous and outdated statutes should be changed by the legislature and not judicial fiat.
C. Lenity
1. Originally, the lenity doctrine requires criminal statutes to be interpreted strictly against the state.
2. Generally, courts interpret the law favorably for the defendant in tiebreaker situations, after looking at legislative intent, etc.
3. MPC does not refer to lenity but to the statutes fair import. Think about what furthers the aim of the law rather than what frustrates it.
Steinberg’s Formula P x R > B (P=nature of punishment, R= Risk, B=)
4: ACTUS REUS
A. Definition: a voluntary act that results in the social harm of an offense.
B. Voluntary Act
1. At common law, a voluntary act is a “willed muscular contraction.”
2. Under MPC, a voluntary act is not defined except by a partial list of what constitutes involuntary acts.
3. Involuntary acts are reflexes, spasms, acts while the actor is unconscious or asleep, or under hypnotism.
4. Conscious and habitual acts are considered voluntary.
5. Possession is an act if the person is aware of the possession and has had sufficient time to dispossess herself of the item.
6. The voluntary act does not have to be the last act.
C. Omissions
1. An omission is generally not considered sufficient for an actus reus.
2. Rationale:
a. Pragmatically, it is difficult to determine mens rea of an omission.
b. Pragmatically, it is difficult to establish causation for an omission.
c. Prosecuting omission is an inefficient use of public resources. (U)
d. Morally, there is a difference between causing harm and not preventing harm.
e. Morally, the criminal law should refrain from turning all moral duties into legal duties.
f. Utilitarian,
3. Rebuttal:
a. A duty to act would promote social cohesion.
b. Both an act and omission involve making a moral choice.
4. Exceptions:
a. Statutory duty
b. Common law duty, e.g. special relationships.
c. contractual duty
d. Omissions following an act
(a) Creation of risk or causation of harm creates a duty
(b) Once you voluntary start to give help, there is a duty not to leave the victim is a worse off position.
D. Causation (see Causation)
E. Social Harm
1. Social harm is the negation, endangering, or destruction of an individual, group, or state interest that is deemed to be socially valuable.
2. Social harm can be tangible or intangible.
F. MPC § 2.02
1. Under MPC § 2.02(4), possession is an act if procured knowingly, received the thing possessed, or
was aware of the control for a sufficient period of time to be able to terminate possession.
G. State has the burden of proof.
5: MENS REA
A. Common Law
1. Culpability Approach:
a. Broad mens rea is a “general immorality of motive”, “a vicious will”, “an evil mind.”
b. A D can be convicted if actus reus is committed with a morally culpable state of mind.
c. E.g. The trial judge was using a broad definition of mens rea in equating “malicious administration of a noxious thing” and the moral culpability of a thief in Cunningham.
2. The Elemental Approach:
a. Narrow mens rea is the particular state of mind provided for in the definition of the offense.
b. A jury can infer the natural and probable consequences of any act and can decide that the D did thus intended the same.
c. E.g. Conley – the mens rea for aggravated battery had to have the intent to cause a disablement or a practical certainty that some disablement would occur.
3. Rationale:
a. It is impossible to deter people who do not possess a culpable state of mind. (U)
b. It is wrong to punish those who do not have a culpable state of mind. (R)
4. Rebuttal
a. Punishment would deter others. (U)
5. “Intent”
a. a desire to cause the social harm;
b. To act with knowledge that the social harm is virtually certain to occur as a result.
6. “Willful”
a. Willful is often synonymous with intentional.
b. Wi
d unjustified risk that the material element exists or will result from his conduct.
5. “Negligently”
a. A person acts negligently if he should have been aware that a substantial and unjustifiable risk that the material element exists or will result from his conduct.
6. Reasonable person is put in the actor’s situation.
a. Physical characteristics are generally included.
b. Hereditary factors are not included.
7. Statutory Interpretation
iii. 2.02(4) requires the mens rea is applied to all material elements unless otherwise obvious.
iv. Placement of a mens rea term in the middle of a statute is sufficient to distinguish the effect of the term on the material elements.
v. If not otherwise stated, recklessness is the minimum mental state needed. Negligence has to be explicit in the law.
vi. In the Yermian problem, the court found that the insertion of the word knowingly constituted contrary purpose.
C. Strict Liability Crimes do not contain a mens rea requirement and are generally disfavored.
1. State can overcome the presumption requiring a mens rea if:
a. The crime is not derived from common law;
b. There is legislative policy that would be otherwise undermined.
c. The standard imposed is reasonable and properly expected.
d. The penalty is small.
e. Conviction doesn’t gravely besmirch.
2. Strict liability offenses are usually public welfare offenses, i.e. small malum-in-se statutes.
3. The MPC approach eliminates strict liability crimes except for “violations.”
D. Mistake of Fact
1. A mistake of fact is not a true defense. It is a only a defense in the sense that the defendant has the initial burden to produce evidence that he was mistaken, but the prosecutor has the burden of persuasion.
2. Common Law Approach
Determine whether crime is strict, specific, or general intent
a. If Strict Liability, the mistake of fact is never a defense.
b. If Specific Intent, a reasonable or unreasonable mistake of fact that negates the mens rea is a defense.
E.g. In Navarro, larceny was not satisfied if Navarro thought he had permission or thought the wood was abandoned.
In Cheek, the tax law demanded a “voluntary, intentional violation of a known legal duty.” D’s mistake, though unreasonable, negates the knowledge required.
c. If specific intent but the mistake does not negate the mens rea because the mistake was regarding a general intent section of the crime, the rule for general intent applies.
d. If General Intent:
