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Criminal Law
University of California, Berkeley School of Law
Ball, W. David

Professor Ball, Criminal Law, Spring 2013
1.  General Principles
“The likeliest explanation is no explanation at all.”—Robert Weisberg
Hart’s Features of Criminal Law
It has a series of commands
It’s binding and it speaks on the community’s behalf
It involves sanctions
Justifications of Criminal Law:
1.      Retributive: Morality
a.       Argues against disproportionality and paternalism
2.      Utilitarian: Greater good (punishment hurts, so limit it)
a.       Argues against cost of enforcement and effectiveness at deterrence
Principle of Legality: There can be no crime without pre-existent law, no punishment without pre-existent law. Need fair notice and nondiscriminatory enforcement.
Ewing (L) v. California (25 to life for golf clubs) (Sentence of 25 years to life is not grossly disproportionate to crime of grand theft under a state’s three strikes law): The defendant, convicted of shoplifting three golf clubs, is given a sentence of 25 years to life under California’s three strikes law. Rule: The 8th Amendment does not require strict proportionality between the crime and sentence, but rather, it only prohibits extreme sentences that are grossly disproportionate to the crime.
The Queen v. Dudley and Stephens (L) (cannibal crew—punishment for murder is still deserved despite killing out of perceived necessity): Two English seamen are convicted of murder for killing and eating a young crew member. Rule: A person may be punished and convicted of murder, despite killing out of perceived necessity.
2.  Statutes and Their Interpretation
Principles of Statutory Interpretation:
1.      Statute is presumed constitutional;
2.      Courts construct statutes if they’re vague
a.       Use common law meaning
b.      Use statutory history
c.       Use prior judicial interpretation
Overbreadth: Prohibits innocent behavior as well as bad behavior
Vagueness: Unclear who or what the law applies to
Rule of Lenity: a rule requiring that those ambiguities in a criminal statute relating to prohibitions and penalties be resolved in favor of the defendant when to do so would not be contrary to legislative intent.
Commonwealth v. Mochan (L) (obscene calls—convictions for common law offense are acceptable even without codification in criminal code if a statutory provision permits punishment of common law offences): The trial court convicted Mochan (D) for a common law misdemeanor not codified expressly as a statutory offense for telephoning Mrs. Zivkovich several times per week and making lewd and obscene comments to her. Rule: When the conduct alleged is not prohibited expressly by criminal statute, a violation of the legality principle does not exist if a statutory provision permits punishment of common law offences.
Keeler (W) v. Superior Court (fetus kicker) (unborn but viable fetus is not a human being): Mr. Keler (D) allegedly murdered an unborn but viable fetus by kicking his pregnant wife in the stomach. Rule: There is a violation of the Due Process Clause when a court construes a criminal statute contrary to the legislative intent and applies its expanded definition retroactively to a person’s conduct.[After the case, the legislature amends 187 to human life include fetuses].
In re Banks (L) (“secretly peeping”=intent of invading reasonable privacy; upheld even though language is vague): Banks (D) was charged with violating a Peeping Tom statute. Rule: Prior judicial interpretation of the terms of a statute challenged for unconstitutional vagueness can vitiate/destroy the challenge.
City of Chicago v. Morales (W) (loitering “with no apparent purpose”; struck down for being too vague): Chicago’s (P) anti-loitering ordinance was challenged as unconstitutionally vague because it failed to give adequate notice of what conduct it prohibited and gave police too much discretion. Rule: To meet the requirements of the Due Process Clause and thus survive invalidation due to vagueness, a criminal law must provide sufficiently specific limits on the enforcement discretion of the police and sufficient notice to the public of what conduct is prohibited.
Muscarello (L) v. United States (“carries a firearm” includes within a vehicle; court looks at “carries” alone, not “carries a firearm”): The defendant challenged the application of a federal firearms statute to his conduct, which involved carrying a firearm in his car, not on his person. Rule: The word “carry,” in its ordinary sense, includes carrying in a car, and neither the basic purpose nor the legislative history of 18 U.S.C. § 924(c)(1) supports circumscribing the scope of the word “carry” by applying an “on the person” limitation.
3.  Actus Reus
Simple Criminal Model: (Intentional) act causes harm or Act (intentionally) causes harm
1.      Harm
a.       Conduct/behavior
b.      Result
Act: What you do (requires volition)
The Attendant Circumstance(s): What must be true
If no act, then you have to ask if there is a duty.
Duty to act (no omission) (if omission, then guilty of manslaughter if by culpable negligence he lets the helpless creature die):
Jones rule: four cases where failure to act is a breach of a legal duty.
1.      Statutory duty
2.      Status relationship
3.      Assumed a contractual duty to care
4.      Voluntarily assumed the care of another and secluded the helpless person so as to prevent others from rendering aid
Martin (W) v. State (drunk and dragged involuntarily) (there must be a voluntary act for each element of a crime that requires an actus reus): Police officers arrest an intoxicated man at his home, take him onto a highway, and arrested him for public drunkenness. Rule: A defendant must perform the physical act (actus reus) for each element of a crime that has an actus reus component. [if prosecution, push the facts back further to find voluntary acts]  
State v. Utter (L) (drunk and discharged Dad killed son) (a person who acts unconsciously may not have the requisite actus reus, but needs evidence of automatism and not voluntary inducement of it… placing himself in drunken condition was voluntary enough): Intoxicated father with an alleged conditioned response condition fatally stabs his son in the chest. Rule: A voluntary act requires the consent of the actor’s will. [D argued automatism unconvincingly; besi

                             ii.                  Knowingly – extremely high probability of an outcome; practically certain
                                              iii.                  Recklessly – conscious risk creation;  substantial level of risk
                                              iv.                  Negligently  – not aware of risk
Regina v. Cunningham (W) (taking gas meter “maliciously” must show reckless or intentional, not just wickedly) (mens rea requires more than wickedness): A thief stole a gas meter from the basement of a house, which caused the gas to leak into an adjoining house and partially asphyxiate an elderly woman who lived there. Rule: The mens rea requirement is satisfied by a showing of either intentional or reckless conduct; a showing of malice or wickedness will not suffice.
People v. Conley (L) (mucosal mouth, natural and probably consequences=“intentionally or knowingly” “intent”) (transferred intent) (intent encompasses either a desire to bring about specific harm or knowledge that harm is practically certain to occur)): After an altercation at a high school party, two boys got into a fight where one boy hit the other in the face with a wine bottle, which cause extensive injuries to the other boy’s mouth and teeth. Rule: A person acts with intent if it is his conscious object to cause a social harm or he knows that such harm is almost certain to occur as a result of his conduct—“one intends the natural and probably consequences of his actions”=”intentional.” [knowingly is easier to prove, but court found intentional and transferred intent here] [not the case if statute said “conscious objective or purpose”].
5.  Mens Rea—Willful Blindness and Strict Liability
State v. Nations (W) (16 year-old dancer) (Mens rea requirement “knowingly” means having actual knowledge of attendant circumstances that must be true for crime): A nightclub owner was charged with endangering the welfare of a child less than seventeen years old when she hired a sixteen-year-old to dance in her club. She claimed that she had asked the girl for identification and that she thought the girl was eighteen. Rule: Unless the applicable criminal code states otherwise, a requirement that a person commit a certain act “knowingly” with respect to a particular fact will not be satisfied unless the person had actual knowledge of the existence of the particular fact. [under the MPC, the state would have to show beyond a reasonable doubt that Nations was aware of a high probability that the girl was under 17.]