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Criminal Law
UMKC School of Law
Berger, Mark

Berger/Criminal Law/Fall 2013


· Theories of Punishment

o Utilitarianism

§ Punishment is only justifiable if it is expected to result in a reduction in the pain of crime that would otherwise occur

§ Deterrence

· General

o Person is punished to convince the community to forgo criminal conduct in the future

· Specific

o Person is punished to deter future misconduct by that person

§ Rehabilitation

· Used to reform the convicted person into a lawful citizen

§ Incapacitation

· The action of disabling or depriving legal capacity

o Retributivism

§ Punishment is justified when it is deserved

§ Retribution

· Punishment imposed as repayment/revenge for the offense committed

· Mixed Theories of Punishment

o Hybrid System

§ Unwilling to punish an innocent person, even if it could be justified on utilitarian grounds

o Negative Retributivism

§ Principle that guilt is a necessary condition of punishment

· Sentencing

o No pristine predictability to the sentencing system

§ Four theories (rehabilitation, incapacitation, deterrence, and retribution) are the only framework of criminal sentencing and the reality is that we probably sentence according to some combination of all four theories


· Notes/Comments on what to punish

o Wolfenden Report (UK 1957)

§ Should not punish/criminalize private, consensual acts between consenting adults

o Prolonged Non-Enforcement of a Law – may not satisfy notice requirement of due process clause

· General

o Lawrence v. Texas seems to signal the end of morals-based legislation criminalizing certain immoral (according to the majority) acts between consenting private adults


· Actus Reus – the physical or external portion of the crime

· Two elements

o A voluntary act or an omission to perform an act where there was a duty to perform

o Social harm




1. Voluntary Act or Omission

2. That causes

3. Social Harm

1. Conduct

2. Attendant Circumstance – external condition

3. Result – consequence

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

Voluntary Acts

A movement of the body that is willed or follows our own volition

· Multiple Personality Disorder is treated as a voluntary act

A person is not guilty of an offense unless his action is voluntary or an omission he is capable of doing

Non Voluntary Acts

· During sleep or unconsciousness

· When actor has no conscious control

· Seizure (with no prior history)

· If there is one voluntary act in a series of involuntary acts, actor may be held responsible

· Reflex or convulsion

· Movement during unconsciousness or sleep

· Conduct during hypnosis

· Movement that otherwise is not a product of the effort or determination of the actor


· When is there a duty

o Status relationship – dependence or interdependence

o Contractual obligation

o Omissions following an act

§ Creation of risk

§ Voluntary assistance

o Statutory duty

· Medical Omission

o Pulling the plug is considered an omission

o There is no duty to continue treatment

· Omission to act is only punishable when

o Omission is expressly made sufficient by the law defining the offense

o A duty to perform the omitted act is otherwise imposed by law


Possession is an act if the possessor knowingly procured or received the thing being possessed or was aware of his control thereof for a sufficient period to have been able to terminate his possession

The Requirement of a Voluntary Action

· How broad is voluntariness requirement?

o MPC only requires that one act/element be voluntary

Good Samaritan Laws and Bystander Indifference

· Jurisdictions are reluctant to impose good Samaritan obligations under criminal law, but the law is moving in this direction, however liability is limited and punishments are extremely limited


· “Guilty Mind”

o The mental state required as defined by the crime to accompany the act which produces the harm



· It is his desire to cause the social harm

· He acts with knowledge that the social harm is virtually certain to occur as a result of his conduct

· Intent is subjective and is based on what D thought


· Aware of the fact

sk that material element exists or will result from conduct

· Gross deviation from standard of conduct of law-abiding citizen

o Negligently

§ Should be aware of a substantial and unjustifiable risk that material element exists and or will result from conduct

· His failure to perceive it involves a gross deviation

Applying Mens Rea Rules

· 1 – Determine material elements

· 2 – Determine mens rea requirement for each element

Conditional Intent

· Both common law and MPC rule that the requirement of intent/purpose is satisfied even if the intent/purpose is conditional


· No mens rea required for conviction with strict liability

· Factors the support the use of strict liability

o The statutory crime is not derived from the common law

o There is an evident legislative policy that would be undermined by a mens rea requirement

o The standard imposed by the statute is reasonable and would be expected of a reasonable person

o The penalty is small

o The conviction would not severely defame the person

· Public Welfare Offenses

o It is wrong because it is prohibited

o Definition

§ Dangerous

§ Highly regulated industry

o Sexually related crimes

§ Statutory rape

§ Adultery

§ Bigamy

o Regulatory offenses

§ Food and drug cases

§ Health issues

· Recap

o If the statute contains a mens rea word, then it likely applies to all material elements

o If the statue does not contain a mens rea then

§ If it prohibits a common crime, probably not strict liability

§ If it carries a severe penalty, probably not strict liability

§ If it involves a complex regulatory scheme, may be strict liability

· An unexpected event (no prior history/warning) can be a defense against strict liability

· Strict Liability within the Model Penal Code

o MPC requires a mens rea for all but one type of offense

§ Violations, rather than crimes, need not have culpability

· Violations are offenses that cannot result in imprisonment or probation, but may result in fines