I. Fair Warning
A. You should not be held liable for conduct which was not criminal at the time committed
B. Public is on constructive notice of what the law is
C. Prohibition against retroactive criminalization
1. Judicial creation of common law crimes (reception: 1850)
2. Cases of first impression
3. Reversal or expansion of prior construction
D. Prohibition against Vagueness
1. Fair notice—due process demands that a person of ordinary experience be offered a reasonable opportunity to know what is prohibited and act accordingly
E. Judicial construction of Statutes
1. An unforeseeable judicial enlargement of a criminal statute, applied retroactively, operates precisely like an ex post facto law, such as Art. I, Section 10 of the Constitution forbids
a. Foreseeable change in judicial construction = constitutional
b. Unforeseeable change in judicial construction = unconstitutional
2. Rules of Statutory Construction
a. Criminal statutes must be strictly construed in favor of Defendant
b. With ambiguous statute, court should look to leg. intent (use Common Law, leg history)
3. Void for Vagueness Doctrine (Bowers)
a. Penal statute must be sufficiently explicit to inform those who are subject to it what conduct on their part will render them liable to its penalties
b. A statute which either forbids or requires the doing of an act in terms so vague that men of common intelligence must necessarily guess at its meaning and differ as to its application violates due process of law
II. Actus Reus and Mens Rea – Conduct element and mental element required in most crimes
A. Actus Reus – guilty act -always consists of one or more of the following;
1. Voluntary conduct of Defendant (always)
2. Production of a stated result by Defendant’s voluntary conduct (sometimes; and if required there must be causation)
3. Surrounding circumstances without which Defendant’s voluntary conduct does not meet the definition of the crime (sometimes)
a. What is conduct? Physical action, speech
4. Voluntary conduct: consciously willed conduct
5. All of Defendant’s Actus Reus need not be voluntary, liability is based on conduct that includes a voluntary act
6. Rule for Voluntary vs. Involuntary Conduct: If part of Defendant’s conduct is voluntary and part of Defendant’s Actus Reus is involuntary, but if at the time of voluntary conduct there is the requisite Mens Rea there is sufficient voluntary conduct to convict
a. A person may be criminally liable for an omission to act, but only if:
7. Defendant has a legal duty (not just a moral duty) to act under the circumstances
8. Defendant must have capacity, means of ability to act; and [not required if you would seriously injure yourself or others]
9. Defendant’s failure to act causes a stated result [Examples of crime by omission: battery (blind man falls into ditch) and arson (legal duty to act when aware the fire has been burning)]
a. A person has a legal duty to act when:
i. Particular type of (personal) relationship: Common Law family, people in dangerous situations (mt. climbing)
ii. Voluntary assumption of care—once you start to help you must continue/finish
iii. Contract (on-duty lifeguard)
iv. Statutes
v. Defendant created the peril
vi. Fact that Defendant has a duty to control the conduct of others
vii. Fact that Defendant is a landowner
B. Mens Rea – mental element of a crime as defined by the criminal offense
1. Negative Mens Rea – lack of justification or excuse; plus
2. Affirmative Mens Rea – mental attitude of Defendant to Actus Reus of offense; must be
a. of a required nature (purpose, knowledge, recklessness or negligence)
b. an attitude to an element of the Actus Reus of the offense and;
c. concur with the Actus Reus of the offense
3. Purpose: A person acts purposely with respect to a material element of an offense when:
a. If the element involves the nature of his conduct or result thereof, it is his conscious objective to engage in conduct of that nature or to cause such a result, and
b. If the element involves the attendant circumstances, he is aware of the existence of such circumstances or he believes or hopes they exist
c. Intentionally or with intent: means purposely
d. May be negated by an honest, though unreasonable mistake
4. Knowledge: A person acts knowingly with respect to a material element of an offense when:
a. If the element involves the nature of his conduct or the attendant circumstances, he is aware that his conduct is of that nature or that such circumstances exist; and
b. If the element involves a result of his conduct, he is aware that it is practically certain that his conduct will cause such result
c. May be negated by an honest though unreasonable mistake
5. Recklessness: A person acts recklessly with respect to a material element of an offense when he consciously disregards a substantial and unjustifiable risk that the material element exists or will result from his conduct. The risk must be of such a nature and degree that, considering the nature and purpose of the actor’s conduct and the circumstances know to him, its disregard involves a gross deviation from the standard of conduct that a law-abiding person would observe in the actor’s situation
a. Negated only by a mistake which is honest and reasonable
6. Negligence: A person acts negligently with respect to a material element of an offense when he should be aware of a substantial and unjustifiable risk that the material element exists or will result from his conduct. The risk must be of such a nature and degree that the actor’s failure to perceive it, considering the nature and purpose of his conduct and the circumstances known to him, involves a gross deviation from the standard of care that reasonable person would observe in the actor’s situation
a. Negated only by an honest and reasonable mistake
7. Mens rea must be appropriate to offense charged—3 possibilities of inap
element of the offense; or
ii. The law provides that the state of mind established by such ignorance or mistake constitutes a defense
b. Although ignorance or mistake would otherwise afford a defense to the offense charged, the defense is not available if the defendant would be guilty of another offense had the situation been as he supposed. In such case, however, the ignorance or mistake of the defendant shall reduce the grade and degree of the offense of which he may be convicted to those of the offense of which he would be guilty had the situation been as he supposed.
c. A belief that conduct does not legally constitute an offense is a defense to prosecution for that offense based upon such conduct when:
i. The statute or other enactment defining the offense is not known to the actor and has not been published or otherwise reasonably made available prior to the conduct alleged; or
ii. He acts in reasonable reliance upon an official statement of the law, afterward determined to be invalid or erroneous, contained in (i) a statute or enactment; (ii) a judicial decision, opinion or judgment; (iii) an administrative order or grant of permission; or (iv) an official interpretation of the public officer or body charged by law with responsibility for interpretation, administration or enforcement of the law defining the offense
d. The defendant must prove a defense arising under subsection (3) of this section by a preponderance of the evidence
4. Three types of participants in a crime who can be punished:
a. 1st degree principal: person committing Actus Reus & Mens Rea
b. 2nd degree principal: not voluntary conduct, but present when the crime was committed, aids & abets
c. Accessory before the fact: aids or abets though not present at the time of the crime
III. Assault, Rape, Bigamy and Other Related Offenses
A. Assault
1. Criminal Battery: an unprivileged touching of another which is either (a) intentional, or (b) unintentional, but the result of ‘reckless’ conduct of Defendant or possibly (c) unintentional, but the result of Defendant’s commission of an unlawful act which did not involve ‘recklessness’
a. Actus Reus: touching
b. Mens Rea: intentional, reckless, result of an unlawful act
2. Attempted Criminal Battery: requires that (a) there be an attempted unprivileged touching of another which comes near to achieving its objective and (b) that Defendant (actually) intends to commit a battery, and possibly (c) that Defendant must have the present ability to commit a battery when the touching is attempted [requirement (c) not in Maryland]
a. Actus Reus: attempted touching
b. Mens Rea: intent
