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Criminal Law
University of California, Berkeley School of Law
Simon, Jonathan S.

Simon-Criminal Law-Fall 2013

Criminal Liability = Bad Acts + Guilty Mind + Causation – (Excuses + Justifications)


Ø Common Law

Ø Legislative Sources

Ø Constitutional Law

First amendment: congress and state legislature may not pass any law that restricts the freedom of speech, religion or the press.

Ø There can be no crime unless there is a statute prohibiting the conduct


Ø Principle of legality: before individuals may be convicted and punished for engaging in such conduct, it must be legislatively prohibited.

− Will limit police and prosecutorial discretion.

− Will provide sufficient guidance to individuals about what conduct may lead to criminal responsibility

Keeler v. Superior Court (CA 1970)

D was charged with murder when he hit his pregnant ex-wife in such way as to kill her unborn fetus, which would have been viable at that point. The then statute defined murder as “unlawful killing of a human being (one who has been born alive)). The majority agreed that with changing science and medical facilities, killing of a viable fetus must account to murder. However, it agreed that the legislature had not included a statute that killing of a fetus is murder and that the court does not has the power to create an offense by enlarging the statute. Whether to extend liability for murder in CA is a determination solely in the province of the legislature. Even if the court had the power to do so, the particular act has to be criminal when it was performed. New penal statutes may only be applied prospectively (as opposed to retroactively).

Some courts have reached the opposite result from Keeler holding that the contemporary meaning of human being is a viable fetus. These court s maintain that medical science has now advanced to a stage that the viability, health, and cause of fetus’s death can be determined. Thus the rationale of “born-alive” rule does not makes sense.”

Ø The constitutional doctrine of void and vagueness: the criminal law should be sufficiently clear so that individuals of ordinary ability can understand what their legal obligations are. Based on due process clause of 5th amendment when federal statute is involved and on the 14th amendment when state statute is involved.

− Vagueness may invalidate the statute for two independent purposes:

It may fail to give the kind of notice that may enable people to understand the conduct that is prohibited.

It may authorize and encourage arbitrary and discriminatory enforcement.

− Also applies to punishment.

− Two different statutes prohibiting the same conduct but describing two different punishment is similar to that of a statute providing and range of punishment. Thus such statute is not vague.

Chicago v. Morales (US SC 1999)

Issue: Whether Chicago City Council’s ordinance prohibiting criminal “street gang members” from loitering with one another or wit another person in any public place” violates the fourteenth amendment of the federal constitution? SC Court: the statute does not give enough notice to ordinary people as to convey what is prohibited. It defines “loitering” as “staying in one place without any apparent purpose”. But how can one display an apparent purpose? It also promotes arbitrary and discriminatory enforcement by providing absolute discretion to police officers to determine what activity constitutes loitering. The policemen are also free to object to anyone they believe is a member of a criminal gang.

Ø Rule of lenity: requires a court to construe criminal statutes strictly, resolving doubt in favor of the defendants.

Ø Ex Post Facto Clauses: Bar legislatures, state and federal from punishing acts that occurred before the legislative proscription was passed.




· Punishment is justified on the grounds that wrongdoer deserves punishment.

· It is morally fitting that the criminals get punished (proportionate to their moral wrong) for their wrongs.

· Only future consequences are material to present decisions.

· Punishment is justifiable only if it can be shown to promote effectively the interest of the society (damage done by the punishment is less than the harm prevented by it).

Ø Retribution: persons who have committed crime have acted immorally and must be punished to atone for their wrong (punishment = moral seriousness of the crime)

Ø Deterrence: deterring persons who might be thinking of committing the crime again.

− Specific and general (punishment = cost of crime X odds of being caught)

Ø Rehabilitation (Punishment = cost of future crimes X odds of occurring)

Ø Retribution (Punishment = cost of future crimes X odds of occurring)

Ø Use of eighth amendment to determine whether the punishment meets the test of proportionality

Ø Two different proportionality analysis:

§ Gross-proportionality-particular sentence

§ Categorical rules-classes of either crimes or criminals (such analysis statistically favors criminal)


Particular Sentence

Step 1

Objective indicia of society’s evolving standards

Court’s own assessment of gravity of the crime v. severity of the punishment in light of penal purposes-TRESHOLD

Step 2

Court’s own independent assessment = gravity of the crime and severity of the penalty in terms of penal purposes

Objective indicia, i.e. treatment of another similar offence in the state, and the treatment of the same offence out of state

Question about the analysis

Can this be used on non-capital cases?

Can this be used on capital sentences? Why would anyone want to use it?

§ Graham v. Florida

Issue was whether constitution permits a juvenile offender to be sentenced to life without parole for non-homicide crimes

Graham (not great family background, ADHD, alcohol, drugs). First crime: Charged with armed burglary with assault or battery (LWOP), attempted armed robbery (up to 15 years) given 3 years of probation. Second crime: home invasion, armed robbery. Was sentenced to LWOP

US Supreme Court: Eighth amendment: “excessive bail shall not be required, nor excessive fines imposed, nor cruel and unusual punishments inflicted.” Juveniles are less mature and have lower mental culpability. For retribution, punishment must be proportional to the mental culpability level. Juveniles are also less susceptible to deterrence. Incapacitation does not justify LWOP for non homicide crimes for juveniles because it assumes that the juvenile if incorrigible. Rehabilitation does not justify LWOP for non homicide crimes either because such punishment assumes that the juvenile is incorrigible. In sum, penological theory is not adequate to justify LWOP for juvenile non-homicide offenders.


Ø Voluntary act or omission (if legal duty to act)

Ø Mere thoughts are not punishable under the common law

People v. Newton, (OK, 1918)

Keeping a house and intent to sell alcohol. Cannot criminalize intent; cannot make crime out of combination of legal acts (keeping a property) and unlawful thoughts (storing, selling liquor). Must be overt act.

Ø Voluntary act: A movement of human body that to some extent is willed or directed by the actor. May be a result of habit or inadvertence as long as the individual may have behaved differently.

Proctor v. State, (NY, 1973)

Defendant was flying from Bahamas to Luxembourg with concealed loaded firearm. The flight made an unexpected landing in the US and the D was charge with class D felony for possession of a loaded firearm. The court found that D’s act was not voluntary. The landing in the US was merely an interruption of flight not attributable to the voluntary action of the D.

Martin v. State, (Al, 1944)

D was arrested from his home and was taken to a highway where he allegedly manifested drunken condition by using loud and profane language. The defendant was convicted of manifesting drunken condition in public. The court of appeal reversed saying that voluntary appearance is presumed and that D cannot be charged if he while in intoxicated condition was involuntarily and forcefully transferred to a public place by arresting officers.

Ø Involuntary act: An individual has no conscious control. E.g. acts done while unconscious or sleepwalking or due to epileptic seizure.

People v. Grant, (App. Ct. Il. 1977)

D was arrested for physical assault on a police officer while drinking at a bar. D produced medial testimony showing that he suffered from psychomotor epilepsy which suggested that the D may have been acting in a state of automatism when he attached the officer. The court reversed the conviction stating that the jury must have been instructed about the defense of involuntarily conduct. The court however added that even if D acted in a state of automatism a jury may still find him liable for an offense if he had prior notice of his susceptibility to engage in violent involuntary conduct brought on by drinking alcoholic beverages or by some other conscious casual behavior.

Ø Not all of the behavior needs to be voluntary act, but at least one voluntary act.

People v. Decina

Defendant knowing that he was subject to epileptic seizure nonetheless voluntarily drove the car and subsequently killed 4 people due to loss of control during a seizure attack. He was convicted of negligent vehicular homicide.

Ø Policy reasons for requiring an voluntary act:

− Cannot hope to deter involuntarily behavior

− It would be grossly unfair to punish the people who lacked the capacity to conform to the law

− The sense of personal security would be undermined in a society where involuntarily movement or inactivity could lead to formal social condemnation.

Ø OMMISSION may be actus reus when there is legal duty to act.

Ø Legal Duty: May be based on

− Relationship (parents must provide food, shelter and clothing to a child.

− Statute (e.g. many states have a law for medical care providers and others to report suspected child abuse.

− Contract to provide care

− Voluntary assumption of care that isolates an individual

− Creation of peril

− Duty to control the conduct of another

− Duty of a landowner

Jones v. United States, (DC Cir 1962). Women charged w/ care of baby. Didn’t feed properly. Failure to act must breach existing legal duty. 4 types: statutory duty to care for another, certain relationship status to another, contractual duty to another, voluntary assumption of duty to care such that others prevented. New trial b/c jury not instructed on finding legal duty.

Ø Possession: is a voluntary act.

Ø MPC 2.01(4): “possession is an act if the possessor knowingly produced or received the thing possessed or was aware of his control thereof for sufficient period of to have been able to terminate his possession.”

− Constructive Possession: proximity of the item and the ability to reduce the item to control or domination. Power and intention to exercise control, over an object not in one’s actual possession.

U.S. v. Maldonado, (1st Cir. 1994) Drug possession case, D was convicted of possession of cocaine with the intent to distribute. What was the act here? D argued that he had never touched the drug, had never seen it, and was never alone in a room with it. Some fudging; constructive possession, not une

rpose of which would be abstructed by such a requirement. It is a question of legislative intent to be construed by the court. Certain type of regulatory offenses enacted for the protection of public health and safety are punishable despite the absence of culpability.

Reasoning: the act was declared as an urgency statute “necessary for the immediate prevention of the public peace, health or safety.” Carrying of a loaded weapon in public falls within the class of cases involving “acts that are so destructive of the social order, or where the ability of the state to establish the element of criminal intent would be so extremely difficult if not impossible of proof, that in the interest of justice the legislature had decided that doing of act constitutes a crime regardless of knowledge or criminal intent on the part of the D.

− Punishment for strict liability crimes were not a violation of due process.

§ United States v. Wulff (6th Cir 1985) page 202

− Reasoning: The statutory penalty involved included a fine of $2000, 2 years imprisonment or both. The court felt that these were not relatively small penalties. The court further noted that a convicted felon loses his right to vote, right to sit in a jury, and right to possess a gun, among other civil rights, for the rest of his life. Conviction in the precedent cases were for misdemeanor. The court could not read requirement of scienster because it was not a common law crime.

Strict liability does not violate the due process clause where (i) the penalty is relatively small and (2) where conviction does not gravely besmirch.

In the present case in order to be convicted for felony, congress must require some degree of scienter.

The court also noted that it cannot read a requirement of scienter because crime is not one known to the common law. An element of scienter may be read into a statute if the crime is one borrowed from common law.

§ Morissette v. United States

− Reasoning: Facts. De, a junk dealer, openly entered an Air Force practice bombing range and took from the range old bomb castings that had been lying unused for years and sold them for a profit. D was convicted of violating a statute that criminalized “knowingly converting” government property. D’s defense was that he believed the casings had been abandoned. D’s conviction was affirmed on appeal and the Supreme Court of the United States granted review.

Issue. Did the court err in instructing the jury that the statute required a showing of intent to take the property rather than a showing that D had knowledge of the fact that the property had not been abandoned by its owner? D must be proven to have had knowledge of the fact that the property had not been abandoned by the owner in order to establish the requisite intent. Intent is inherent in the class of offenses in which stealing and its equivalents are included, regardless of whether a requirement of intent is expressed in a statute. Larceny type offences are well rooted and defined in early common law and, the congressional laws merely adopt these offenses into statutory law. Therefore Congressional silence, with regard to mental elements in the Act, warrant a different interpretation than congressional silence in creating new offences where the courts’ only guidance is the statutory language. The Supreme Court also distinguishes the limited class of public welfare offenses in which courts have discontinued inquiry into intent from the case at bar. This case illustrates the difference between strict liability type offenses that do not require a certain mindset or intent from offenses where the intent requirement is implied regardless of statutory silence on the element of intent.

Shelton v. Secretary, Dep’t of Corrections (M.D. Fla. 2011)

The federal court held that Florida’s strict liability drug possession law violated due process. D was convicted of delivery of cocaine and sentenced to 18 years in prison. The SC held that analysis of strict liability crimes includes:

(i) the penalty imposed (should be low);

(ii) the stigma associated with the conviction (should not gravely besmirch); and

(iii) the type of conducted regulated (the Supreme Court has constantly either invalidated strict liability statutes that proscribe conduct that is neither inherently dangerous nor likely to be regulated).

The court held that Fla ststute failed in all three regards

(i) 18 years was a harsh punishment;

(ii) there is considerable stigma and loss of rights to vote, get loans etc; and

(iii) there is a long tradition throughout human existence of lawful delivery and transfer of containers, under Fla’s statute the conduct is rendered immediately criminal if it turns out that the substance is a controlled substance without regards to the deliver’s intent or knowledge.