Select Page

Criminal Law
University of California, Berkeley School of Law
Sklansky, David Alan

1. Introduction:
Statutory Interpretation
1.      Rule of Lenity = If a statute is ambiguous, then courts must resolve the ambiguity in Δ’s favor (“weak version”)
                                                              i.      Steps of Statutory Construction:
1.      Plain meaning of the terms
2.      Canons of construction
a.       Lists and other associated terms
                                                                                                                                      i.      Construe doubtful term or phrase by looking at  relationship with surrounding words and phrases (noscitur a sociis)
                                                                                                                                    ii.      If there are specific terms followed by a general term, the general term is construed in light of the specific terms (ejusdem generis)
b.      Statutory structure (look at the other provisions of the statute)
c.       Avoiding absurdity—a statute should be interpreted in a way that avoids absurd results
3.      Legislative intent  [If the statute is still ambiguous, then use rule of lenity] Purposes of Punishment
Retributive = punish people who are morally blameworthy, i.e. b/c they deserve it; they deserve when they freely choose to violate society’s rules [Immanual Kant]                                                               i.      Backward looking
                                                            ii.      The wrongdoer should be punished, whether or not it will result in a reduction in crime
                                                          iii.      James Fitzpatrick Stephens: “It is morally right to hate criminals.”
Utilitarian = punishment serves useful purposes, creates good consequences [Bentham “Father of Utilitarianism” = punishment to maximize net happiness of society, to exclude painful events]                                                               i.      Forward-looking
                                                            ii.      Three main strategies
1.      Deterrence
a.       General deterrence:  meant to convince general community to forego criminal conduct in the future
b.      Specific deterrence: meant to deter future misconduct by D
2.      Rehabilitation-correctional system, e.g. psychiatric care, therapy for drug addiction, academic/vocational training
3.      Incapacitation—take criminal out of society’s so he can’t hurt other people
Mixed Theories
                                                              i.      Punish only when retributive and utilitarian goals are both served
1.      You can’t punish people who haven’t done anything wrong even if there is great societal benefit possible
2.      But you shouldn’t punish someone if there is nothing to be gained from it
                                                            ii.      Expressive Theories = punish to express society’s condemnation
1.      Durkheim—punish in order to maintain the cohesiveness of society, reassure ourselves that we really are committed to principles of not doing bad
a.       Fits into both retributivism and utilitarianism:  good for society, but also an end in itself
2.      Stephens—hatred of criminals is natural human emotion; it is fine, but needs to be restricted to a forum, just as sexual passion needs to be restricted within a marriage
3.      reinforce the “common consciousness”
Process of Punishment
“Beyond Reasonable Doubt” Standard:
                                                              i.      In re Winship (Scotus, 1970): due process clause requires prosecutor to prove every element of a crime beyond a reasonable doubt.
                                                            ii.      Comes from 14th Amendment Due Process Clause: so central to tradition of due process, that part of our Constitution
                                                          iii.      Rationale: it is much worse to convict an innocent person than to acquit a guilty person
Right to Jury Trial
                                                              i.      The 6th Amendment (applied to States through Due Process Clause of the 14th Amendment) guarantees the right to a jury trial to criminal defendants being tried for crimes other than “petty offenses”
1.      Right to jury trial protects the accused from government oppression
2.      Simple battery—up to 2 years imprisonment—is not a “petty offense” [Duncan v. Louisiana (Scotus, 1968)] 3.      No jury only for those “petty crimes,” i.e. those for imprisonment under 6 months [Baldwin v. New York (Scotus, 1970)] 3.      Jury Nullification
                                                              i.      Appellate review is only of convictions, not of acquittals.
                                                            ii.      Rule: if a jury acquits a person, a judge cannot as a matter of law reverse—thus, jury has unabridged power to acquit for any reason it wants, and can freely choose to disregard the law (i.e. jury instructions)
1.      Rationale: this is protection from government oppression—it would be oppressive if a judge could overturn an acquittal and unilaterally convict
                                                          iii.      Judges should not tell juries that they have this power.  It should only be used in extreme circumstances, and regularly including it in jury instructions will encourage jurors to ignore the law and eventually lead to anarchy [U.S. v. Dougherty (U.S.C.A., DC Cir., 1972)] 1.      Most courts follow this rule, and don’t tell jury
                                                          iv.      Ambivalent results:
1.      Positive: juries refusing to enforce fugitive slave laws
2.      Negative: juries refusing to enforce murder laws (men killing unfaithful wives), lynching laws (whites lynching blacks)
2. Basic Principles:
Actus Reus = “guilty act”; wrongful act that gives rise to criminal liability as distinguished from the required mental state
Criminal liability always requires an “actus reus”: commission of some voluntary act that is prohibited by law.
 “for there to be a crime, there has to be an act”
i.        No deterrence benefit
ii.      Public doesn’t have to worry about being convicted of crimes they committed involuntarily
2.      If actus reus is not explicitly required by the statute, courts must read it in
i.        Example: if a statute makes appearing in public while intoxicated a crime, then a person is not guilty of that crime if he was brought there by police officers against his will while intoxicated [Martin v. State (Alab. Ct. App., 1944)] No punishment for thought crimes
                                                              i.      “fundamental that a civilized society does not punish for thoughts alone”
                                                            ii.      Rationale:
1.      Line-drawing problem: when does a fantasy become an intended action?
2.      Problem of enforcement—how could we measure? Invasion of privacy
3.      No deterrence benefit (can’t deter thoughts)
4.      Intent might not ever translate into a crime (person might change his mind)
                                                          iii.      Thought can be an element of a crime (i.e. levels of intent), but thought alone is never a crime
No status crimes (e.g. being an addict)
                                                              i.      State cannot punish being, but only targets conduct
                                                            ii.      Violation of 8th Amendment prohibition against cruel and unusual punishment
                                                          iii.      Example: L.A. law prohibiting homeless people from being on the streets (9th Cir. ruled this is a status offense—punishes just for “being”)
                                                          iv.      Can’t punish an involuntary condition (e.g. a disease)
1.      Infliction of cruel and unusual punishment in violation of the 8th and 14th Amendments.
2.      Example: can’t punish for being addicted to a drug [Robinson v. California (USSC, 1962)] 3.      Example: CAN punish alcoholics for actions committed while intoxicated (assuming intoxication is self-induced) [Powell v. Texas (USSC, 1968)] a.       Not a status offense—punishing actions
b.      Choice to drink is not completely inv

d for “public welfare offenses” → strict liability
                                                              i.      Low penalties
                                                            ii.      Low stigma
                                                          iii.      Tend to be regulatory
                                                          iv.      New offense that doesn’t exist already in common law
1.      Example: statute making it illegal to “knowingly convert” gov property is just codification of common law crime of larceny, which has alwayres required intent to steal.  Therefore, courts can’t interpret this to be strict liability [Morissette v. U.S., Scotus (1952)]                                                             v.      Rationale: mens rea not required b/c this would frustrate purpose of regulation; cases where people are helpless to protect themselves
1.      actor creating risk of harm is in better position to prevent the harm than are members of the general public
2.      actor knows he is creating a risk of harm to general population so he should be alerted the probability of strict regulation
                                                          vi.      Examples
1.      Federal crime against selling certain dangerous drugs (e.g. opium) does not require knowledge that selling the drug is illegal [U.S. v. Balint, USSC (1922)] 2.      Crime against mislabeling of drugs does not require mens rea [U.S. v. Dotterweich, USSC (1943)] 3.      Owning unregistered hand grenades, not knowing that they are unregistered in violation of the law, is not a defense to liability—no mens rea is required because of the danger.  U.S. v. Freed (U.S. 1971)
Exception: ignorance of the law is no excuse:
General rule:  no crime w/out mens rea
Exception:  statutory directive
Exception:  public welfare offenses
Exception:   ignorance of the law is no excuse
                   Exception to exception:  Lambert  (omission, seems also to be malum prohibitum)
                   Exception to exception:  statutory directive (when ignorance of the law is an    
                  excuse); defense if reasonably relied on law that later turns out to be erroneous
                                                              i.      Mistaken personal interpretation of the law is not a defense to liability, even if reasonable.  People v. Marrero (NY Ct. Appl 1987)
                                                            ii.      Exception to exception:  excuse if misrepresentation on law that has subsequently been invalidated
                                                          iii.      Exception to exception: excuse when a good faith belief in the legality of the conduct negatives an express and necessary element of the crime
1.      Example: Theft requires knowledge that the property being taken belongs to someone else, so a good-faith mistake of law (thinking the property is your own when legally it isn’t) negatives an element of the crime
2.      Example: Kidnapping requires the intent, without authority of law, to confine or imprison someone—so if you thought you had the thought you had legal authority to imprison a murder suspect, then this would negative a material element of the crime [Weiss] 3.      MPC §2.04(1)
                                                          iv.      Exception to exception: official reliance