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Criminal Law
University of California, Berkeley School of Law
Roth, Andrea




Mens Rea Terms Defined:

Common Law:

1. Purpose: Is the actor’s desire or conscious object to cause social harm (same as MPC)

2. Knowledge: Actor acts with knowledge that social harm is virtually certain to occur as a result of his conduct

Knowledge and attendant circumstances (common law):

A person acts “knowingly” regarding an existing fact if she either (1) is aware of the fact; (2) correctly believes that the fact exists; or SOMETIMES (3) suspects that the fact exists and purposely avoids learning if her suspicion is correct, sometimes called willful blindness. \

3. Reckless: most courts now provide that a person acts “recklessly” if she consciously disregards a substantial and unjustifiable risk that her conduct will cause the social harm of the offense (requires subjective awareness of the risk)

Cunningham: requiring that the accused has foreseen that the harm might be done and has gone on to take the risk anyway.

4. Criminal/Gross/Culpable Negligence: one should be aware that her conduct creates substantial and unjustifiable risk of social harm.

5. Malice: A person acts with “malice” if she intentionally or recklessly causes the social harm of an offense

MPC Mens Rea Terms:


1. Purpose- conscious object to cause the result

2. Knowledge- awareness that the result is “practically certain” to occur from the conduct

Note: for attendant circumstances just needs to be a “high probability of its existence”

3. Recklessness- Conscious disregard of a substantial and unjustifiable risk that the material element exists or will result from his conduct

4. Negligence- Should be aware of a “substantial and unjustifiable risk”- the risk being a “gross deviation from the standard of care that a reasonable person would observe in the actor’s situation.

The Big Picture

4 Ingredients of Criminal Responsibility

1. A voluntary act or omission

2. Social Harm as specified in the definition of the offense

3. Actual and Proximate causal connection between voluntary act and social harm

4. Defendant’s Mens Rea (strict liability crimes set aside)

Crime: “Any social harm defined and made punishable by law.”

· Punishment follows as a formal and solemn pronouncement from the community.

· Criminal law as expression of community norms; thus, juries made up of peers, “fair cross section of society”

Main Sources of Criminal Law:

1. Statutory law

a. Most important, now unconstitutional to punish someone unless his conduct was previously proscribed by the legislature

b. Says that a person who has done x, committed crime y, will be punished at point z

2. Common Law Crimes

a. A subset of crimes that were crimes in England but continue to be crimes in America and were later codified into criminal statues

b. Can mean judicial development, laws that originated in England, or current English law

3. Constitutional law

a. 8th amendment prohibits cruel and unusual punishment

4. Model Penal Code

a. Developed in 1960s by the American Law Institute

The Criminal Process:

Burden of Proof

· burden on the state: “beyond a reasonable doubt”

· For penalty under six months: judge for you fact finder (petty offenses)

· For penalty over six months: jury trial

· Juries make determinations of fact; judges make determinations of law

Standard of Review for Appellate Judges:

Issue: whether after viewing the evidence in light most favorable to the prosecution, any rational trier of fact could have found the essential elements of the crime proven beyond a reasonable doubt

Owens v. State- When a case is relying solely on circumstantial evidence, it must be with reasonable certainty that there are no other reasonable scenarios under the circumstances in which the defendant could have been innocent

Jury Nullification:

· When jury reaches a verdict contrary to the weight of the evidence.

· Jury Nullification is a power, not a right (Judge Wilentz, Ragland).

State v. Ragland:

Facts: During trial, judge instructed the jury that if it found that the defendant was in possession of a weapon during the commission of the robbery, “you must find him guilty of the possession charge.” Defendant is appealing on the use of the word “must” in his instruction to the jury because he claims it conflicts with the jury’s nullification power which is part of his constitutional right to a jury trial.

Williams v. Florida

Facts: Charged with statutory rape. Juror no. 10 said he just couldn’t convict him. Gets dismissed because he says he won’t follow his oath. Williams is convicted and appeals. Appellate Court upholds the dismissal of juror because nullification is only a power, not right.

Arguments for:

1. Represents the conscious of the community

2. Serves as a safety valve

Arguments against:

1. Government of laws and not men

2. Predictability of criminal justice system


Theories of Punishment:

Greenawalt’s Characteristics of Punishment

1. Performed by and directed at people responsible in some sense

2. Involves harmful or unpleasant consequences by design

3. These unpleasant consequences usually come after a judgment of condemnation

4. Imposed by one who has authority to do so

5. Imposed for a breach of some established rule of behavior

6. Imposed on actual or supposed violator of the rule of behavior


1. Leading Scholar: Jeremy Bentham

2. General Principles:

a. Punishment can be justified only insofar as it promotes some social good. Justification lies in the useful purposes that punishment serve; forward looking because punishment is justified on the basis of supposed benefits to society which will accrue from its imposition.

b. Both crime and punishment are evils, b/c they result in pain to individuals and society as a whole, the only reason that punishment is justified is if it prevents a greater amount of pain in the form of future crime

c. Utilitarians think humans make decisions on a rational basis—by choosing from different alternatives, making calculation as to the chance of getting caught and the severity of the penalty vs. the worth of the act. Utilitarian Purposes of Punishment:

3. Forms:

a. Deterrence

a. General Deterrence: person is punished to send a general message to the community

b. Specific Deterrence: D is punished in order to deter D from future criminal activity.

i. Rational

1. The punished individual is an instrument for the improvement of society and preventing future harm

2. Since the wrongdoer is a member of the society, he benefits from his own punishment as well (so it is not solely a means to an end)

3. Avoids the evil of punishment for its own sake, should only punish if it benefits society.

ii. Critique

1. This system justifies using persons as a means to an ends, which ignores the dignity and human rights of the wrongdoer

a. Counter-argument: since the wrongdoer is a part of society, he benefits from his own punishment and he is therefore not used as a means to an end. (think Weller old man ran through farmers market)

2. If people are unaware of the punishme


c. Much harder to justify death as punishment under this theory, many protective retributivists are against the death penalty

· Intent Based Retributivism- criminal liability should be upon what the actor was trying to do, intended to do and believed he was doing, rather than based on the actual consequences of his conduct

· Victim Vindication – reasserts value of victim (Jeffrie G. Murphy & Jean Hampton)

a. Implicit in wrongdoing is a devaluation of their victim’s value relative to their own

b. Punishment serves the purpose of affirming the victim’s real value

*MPC blends utilitarian and retributive aims

4. Critiques

a. The equivalence theory leads to possible excessiveness or barbarism

b. Is the idea of infliction of paint through punishment is evil if it has no future benefit

a. Counter-Argument for Retributivism: There are moral imperatives—acts that are unalterably right or wrong, regardless of their consequences—and once it is determined that a crime has been committed and that the wrongdoer is morally responsible for committing it, a measured response in the form of punishment proportional to the crime is unalterably right.

c. Society’s goal should be to reduce overall human suffering not causing more of it

d. It is irrational because it is founded on emotions, such as anger, rather than on reason

a. Counter-Argument for Retributivism: Emotions can have a moral content. Anger, when directed at a wrongdoer for his wrongdoing, is also a morally proper emotion. Our anger demonstrates our awareness that the criminal has violated our rights, has acted unjustly, and therefore, deserves punishment.

Theory Application:

1. Case: The Queen v. Dudley Stephens:

a. Facts: Men stuck at sea. Committed act of cannibalism on the youngest to save their own lives

b. Should they be punished?

a. Utilitarian:

i. Isn’t one person dead better than 4 people dead: maximize the good?

ii. Or might say that they should be punished to prevent other people from cannibalism

b. Retributivists:

i. If you believe what they did was wrong, then morally deserves to be punished

Proportionality of Punishment

7 Objectives to Consider in Sentencing

1. Protecting Society (incarceration)

2. Punishing Defendant (retribution)

3. Help society (deterrence/rehab)

4. Deterring others by demonstrating consequences of criminal conduct (general deterrence)

5. Preventing Defendant from committing new crimes by isolating him/her for period of incarceration (incapacitation)

6. Securing Restitution for victims

7. Achieving uniformity in Sentencing (utilitarian)

Because application of these objectives may lead to inconsistent dispositions, sentencing judge must consider which objectives are most important in a particular case. Sentencing judge should be guided by statutory statements of policy, criteria in these rules, and the facts and circumstances of the case