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Criminal Law
University of California, Berkeley School of Law
Weisselberg, Charles D.

Criminal Law Outline
Professor Charles Weisselberg, Fall 2012
Theories of Criminal Punishment
1) Deterrence: punishment is justifiable only if it is expected to result in a reduction of crime.
  * general: punishment imposed to dissuade the community at large to forego criminal conduct in the future
  * specific: punishment is meant to deter future misconduct by an individual D by both preventing him from committing crimes against society during the period of his incarceration (incapacitation), and reinforcing to him the consequences of future crimes (intimidation).
  * theory is forward looking: justification on basis of the supposed benefits that will accrue from its imposition
Proportionality: punishment be inflicted in the amount required (but no more than is required) to satisfy utilitarian crime prevention goals.
2) Rehabilitation: reform (ex. psychiatric care, therapy for drug addiction, academic or vocational training)
A D is punished simply because he deserves it. Goal is to make the D suffer in order to pay for his crime.
Punishment on a proportional basis so that crimes that cause greater harm or are committed with a high degree of culpability (e.g. intentional vs negligent) receive more severe punishment than lesser criminal activity.
   * theory is backward looking; justification is found in the prior wrong doing
Some Basic Legal Principles
Although not the law in any jurisdiction, it stimulated adoption of revised penal codes in at least 37 states. Courts sometimes turn to the MPC and its supporting commentaries for guidance in interpreting non-Code criminal statutes.
Reception statutes
A statute which allows the common law to be received in the state
Jury Nullification
Jury has the power to return a verdict of acquittal even though the jury believes that the D is legally guilty of an offense.
  * may occur if jury believes statute is immoral, D has been punished enough already, or law enforcement misbehaved
State Law (majority approach)
Indeterminate sentencing: afforded judges considerable sentencing discretion, encouraged individualization of maximum sentences, and authorized correctional officers (parole boards) to release a prisoner before completion of the sentence imposed by judge.
  * ex. Except as [otherwise] provided..every person guilty of second degree murder shall be punished by imprisonment of 15 to life.
Determinate sentencing: no discretion to corrections officers to reduce sentences based on evidence of rehabilitation in prison
  * anyone guilty of x crime shall be punished by imprisonment in state prison for two, three, or four years
Federal law: judges required to impose sentences in conformity with the Federal Sentencing Guidelines
General Objectives in Sentencing:
1) protecting society
2) punishing the D
3) encouraging the D to lead a law-abiding life in the future and deterring him from future offenses
4) deterring others from criminal conduct by demonstrating its consequences
5) preventing the D from committing new crimes by isolating him for the period of incarceration
6) securing restitution for the victims of crime and
7) achieving uniformity in sentencing
Balance: bc some of these objectives may suggest inconsistent dispositions, the sentencing judge must consider which objectives are of primary importance in the particular case
Eighth Amendment Limits on Punishment
Implicit in the Eighth Amendment’s prohibition against “cruel and unusual punishment” is that punishment not be grossly disproportional to the crime committed
Is excessive and unconstitutional if it:
1) makes no measurable contribution to acceptable goals of punishment and is nothing more than the purposeless and needless imposition of pain and suffering or
2) is grossly out of proportion to the severity of the crime
  * Coker v. Georgia: D escaped from prison when he was serving time for rape, murder; committed another rape, sentenced to death. SC reversed: the imposition of the death penalty for rape is unconstitutional
  * Ewing v. CA: D with criminal past sentenced 25 to life after stealing golf clubs (3 strikes law does not violate 8th Amendment; proportionality review must take public safety goal of state into account)
Common law: a person may not be punished unless his conduct was defined as criminal at the time of commission of the offense.
Essence of legality: prohibition on retroactive criminal lawmaking
3 interrelated corollaries to legality:
1) Criminal statutes should be understandable to reasonable law-abiding persons
2) Criminal statutes should not delegate basic policy matters to police officers, judges, juries on an ad hoc & subjective basis
  * vague laws provide too much power to police, prosecutors, and judge
Lenity Doctrine
3) Interpretation of ambiguous statutes should “be biased in favor of the accused”
  * MPC 1.02(3): does not recognize the lenity principle. Instead requires ambiguities be resolved in a manner that furthers the general purposes of the Code and the specific provision at issue
-must give fair notice, be fair to citizens, be specific, and cannot be retroactive
  * fair notice is reflected in constitutional prohibition against ex post factor laws
Legality cases:
  * Commonwealth v. Mochan: D called woman various times intending to debauch and corrupt her; harassed her; found guilty. Supreme Court: judgment affirmed; test is not whether precedents can be found in the books but whether the alleged crimes could have been prosecuted & punished under common law.
  * Keeler v. Superior Court: man kicked ex-wife’s stomach, caused stillborn. Statute did not recognize fetus as a person, so it would be a violation of D’s DP if he was charged with murder.
  * City of Chicago v. Morales: SC held that Chicago’s Gang Congregation Ordinance was unconstitutionally vague bc it both fails to provide notice to the citizens and leaves too much discretion to police (“apparent purpose” in statute is too vague)
Statutory Interpretation
Textual Canons of Construction
1) give words their ordinary meaning
2) interpret ambiguous words by reference to other words in the statute
3) omission of a word may have significance
4) pay attention to disjunctive vs. conjunctive connectors, plural vs singular, etc
5) read statute as a whole, give each word meaning. Identical words used in different parts of the statute are presumed to have the same meaning
Substantive Canons of Construction
1) construe crim statutes strictly (for reasons of fair notice or bc the power to make conduct criminal cannot be delegated to judges)
2) avoid conflicts with the Constitution
3) avoid retroactivity of criminal statutes
  * Muscarello v. U.S.: issue is whether the phrase “carries a firearm” is limited to the carrying of firearms on the person. No, it also applies to a person who knowingly possesses and conveys firearms in a vehicle, including in the locked glove compartment or trunk of a car, which the person accompanies. Court looked to purpose of policy and looked at statute as a whole
Actus Reus
General Principle
“Actus Reus” refers to the physical aspect of the criminal activity. The term generally includes 1) a voluntary act 2) that causes 3) social harm.
Voluntary Act: subject to limited exceptions, a person is not guilty of a crime unless his conduct includes a voluntary act
MPC 2.01: requires criminal conduct to include a voluntary act. Lists bodily movements that are involuntary: reflexes, convulsions, sleep. Excluded from the requirement that the act be voluntary are offenses that constitute a violation which has a max penalty of a fine.
Constitutional aspects: government may not punish a person for his thoughts alone, or for his mere propensity to commit crimes
  * Robinson v. California: convicted under CA statute that made it an offense for a person to be “addicted to the use of narcotics”; statute struck down by Supreme Court on Eighth and Fourteenth Amendment grounds. Could not criminalize status of being an addict.
  * Power v. Texas: charged with violating statute that prohibited drunkenness in a public place. Argued he was a chronic alcoholic and sought relief under Robinson. Court upheld conviction, distinguishing from Robinson on the ground that Powell was being punished for the act of public drunkenness, not for his status as a chronic alcoholic.
  * State v. Utter: D was WWII vet, drank too much, stabbed son. Did not remember what happened. Within the def of homicide, an act must be a willed movement, but when the state of unconsciousness is voluntarily induced using drugs or alcohol, the defense falls short of being complete
An implicit element of all crimes. May be “actual” or “proximate”
Actual Cause (“Cause-in-Fact”)
1) But For
2) Multiple Actual Causes: multiple wrongdoers culpable if his act was “a” cause-in-fact of the injury or death
3) Accelerating a result: even if an outcome is inevitable (e.g. everyone dies), if a D’s act accelerated death, he can be found criminally liable. “But for the D’s actions, would the harm have occurred when it did?”
  * Oxendine v. State: beaten and kicked son in abdomen, girlfriend had already delivered fatal blow to son, appealed manslaughter conviction. Contribution to or aggravation of death without acceleration of death is insufficient to establish the causation of death required for a conviction of manslaughter
  * People v. Rideout: D, driving intoxicated, hit someone’s car. Went back to put blinkers on car and another car came and hit victim. To determine whether the causal link between the initial event and later event that causes harm is severed, it is important to determine whether the intervening cause was foreseeable based on an objective standard of reasonableness. ** for jury instructions, talk about proximate cause: foreseeability & proximate cause, duty of care, superseding/intervening facts (voluntary human intervention)
  * Velazquez v. State: two men decided to drag race, finished race, one turned around to challenge the other again, drove off cliff. D’s participation was not a proximate cause o

SHOULD have been aware of the substantial and unjustifiable risk he was taking).
Recklessness implicates subjective fault, in that the D was in fact aware of the substantial and unjustifiable risk he was taking but disregarded the risk.
6) Malice: one acts with malice if he intentionally or recklessly causes the social harm prohibited by the offense
Specific Intent & General Intent
Specific: one which 1) the actor does the physical act but has some unexecuted intent to do some further act or accomplish a future result (e.g. PWID (WID is a specific intent))
2) the actor intends a particular result or consequence (e.g. AWIK (WIK is a specific intent)
3) when the actor is aware of attendant circumstances (possession of a firearm known to be loaded)  
General: the moral culpability that is required to do a physical act (ex. battery: intent to do a touching)
MPC 2.02(1): person must have acted purposely, knowingly, recklessly, or negligently, with respect to each material element of the offense. Code requires the prosecution to prove that the D committed the actus reus of the offense (each ingredient of the offense) with a culpable state of mind, as set out in the specific statute.
Code: shuns the “culpability” meaning of “mens rea”
discards the distinction between general intent and specific intent
limits mens rea to four terms: “purposely,” “knowingly,” “recklessly.” And “negligently”
requires application of mens rea to EVERY material element of a crime, including affirmative defenses
Mens Rea Terms
“Purposely” 2.02(a)(i)—in the context of a result or conduct, a person acts “purposely” if it is his “conscious object to engage in conduct of that nature or to cause such a result”
Attendant circumstances: a person acts “purposely” with respect to attendant circumstances if he “is aware of the existence of such circumstances or he believes or hopes that they exist.”
“Knowingly” 2.02(2)(b)(ii)—a result is “knowingly” caused if the D “is aware that it is practically certain that his conduct will cause such result”
Attendant circumstances: one acts “knowingly” if he is “aware that his conduct is of that nature or that such attendant circumstances exist.” Knowledge is established if a person is aware of a high probability of the attendant circumstance’s existence, unless he actually believes that it does not exist.
Willful blindness- not viewed as actual knowledge disguised by pretended ignorance, nor is it characterized as acting despite a suspicion of wrongdoing. Rather, drafters understood the willfully blind actor to be one who acts with a high level of awareness of a particular fact. Prosecution must prove that the D had an “awareness of a high probability” that a fact existed UNLESS he actually believes that it does not exist.
“Recklessly”–a person acts “recklessly” if he “consciously disregards a substantial and unjustified risk that the material element exists or will result from his conduct.”
A risk is “substantial or unjustifiable” if considering the nature and purpose of the D’s conduct and the circumstances known 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.
“Negligently”—conduct is negligent if the D should be aware of a substantial and unjustifiable risk that the material element exists or will result from his conduct.
Jury decides whether D should be aware of risks.
“Substantial and unjustifiable” is same as definition in recklessness except term “reasonable person” is substituted for law abiding person.
Difference: reckless D “consciously disregards” the risk, whereas the negligent D’s risk-taking is inadvertent.
Jury’s 2 distinct functions in a negligence case:
1) examine the risk and the factors that are relevant to its substantiality and justifiability
  * question not what the actor’s perceptions actually were but in terms of an objective view of the situation as it actually existed
2) makes culpability judgment, this time in terms of whether the failure of the D to perceive the risk justifies condemnation