Select Page

Criminal Law
University of California, Berkeley School of Law
Mohamed, Saira

1.      What is a Crime?
a.       “Any social harm defined and made punishable by law.”
b.      Hart: “conduct which will incur a formal and solemn pronouncement of moral condemnation of the community.”
c.       Two types of crimes
                                                              i.      Conduct crime: Conduct itself is prohibited. The result is unimportant.
                                                            ii.      Result crime: Result is prohibited.
2.      What elements make up a crime?
Actus Reus: A voluntary act (or omission when there is a duty to act) that causes social harm. The external or physical element of the crime.
                                                              i.      Requirement of notice that it’s a prohibited act.
                                                            ii.      Can be prohibited conduct or prohibited result (when result, requires showing of causation)
Mens Rea: a guilty mind, moral blameworthiness. The mental or internal ingredient.
                                                              i.      Exception: strict liability crimes
                                                            ii.      Specific intent / general intent / strict liability (common law)
                                                          iii.      Purpose/knowledge/recklessness/negligence (MPC)
                                                          iv.      Mistake as a way of proving lack of mens rea 

Attendant Circumstances: conditions about a conduct that must exist to be criminal (example: “to another.” Injury to oneself not prohibited).
What creates criminal responsibility?
A voluntary act or omission when there is a duty to act.
A guilty mind, moral blameworthiness.
Actual and proximate causal connection between voluntary act and social harm.
4.      Criminal vs. Civil Liability
a.       The harm we are focusing on in is criminal liability not civil liability. Punishing and regulating acts that are of societal concern. Four factors that differ criminal liability from civil liability:
                                                              i.      Culpability (culpable mental state)
                                                            ii.      De Minimis Defense: the harm must be sufficiently serious to be labeled criminal.
                                                          iii.      Consent (consent to act doesn’t necessarily make it not criminal)
                                                          iv.      Social Deviance: criminal liability attaches to conduct that deviates from what is expected of the average person.
5.      Sources of Criminal Law
a.       Common Law
                                                              i.      Judge-made law. For the most part, British common law became American common law.
                                                            ii.      Most of English common law has been absorbed through reception statutes or is used in judicial interpretation. 
b.      Statutes
                                                              i.      Legislatively drafted definition of crimes and their defenses.
                                                            ii.      U.S. is primarily statutory.
c.       Model Penal Code
                                                              i.      Drafted in the 1950’s. Adopted in 1962 by the American Law Institute.
6.      Limits on Criminal Law:
a.       All legislation is subject to the strictures of the U.S. Constitution.
b.      6th Amendment: “in all criminal prosecutions…the right to a speedy and public trial, by an impartial jury”
                                                              i.      In practice, right to a jury trial when maximum punishment exceeds six months incarceration.
c.       5th Amendment:
d.      14th Amendment:
7.      Legality Principle: Four rules make up the legality principle
a.       No ex post facto laws: Due process requires fair warning (not actual notice, but an opportunity for notice of what conduct will incur a penalty. Punishments cannot be retroactively changed.
                                                              i.      Keeler v. Superior Court (1970)
1.      Husband attacks pregnant wife, kills fetus.
2.      Common law term in statute given common law meaning if not otherwise defined. Fetus not considered human being for purposes of murder. To convict would be to judicially create an offense. (see rule below) If legislature changes definition after the crime, no fair warning as required by due process.
b.      No judicial creation of offenses:
                                                              i.      The legislature, not the judiciary, should define criminal behavior and punishment as it represents the people.
                                                            ii.      Judiciary can put a check on the legislature or the executive when they exceed their power, but self-restraint the only check on judicial power. Therefore, if judiciary abuses its power, and creates a crime there is no recourse for the defendant. Criminal law only punishes illegal acts, not all immoral acts.
                                                          iii.      Commonwealth v. Mochan (1955)
1.      Convicted man with harassing/vilifying a woman in PA even though there was no law in the penal code b/c argued it was a crime under common law.
2.      Affirmed because PA adopted the common law through reception statute that says, “every offense punishable either by the statutes or common law of this commonwealth and not specifically provided for by this act shall continue to be an offense punishable.”
3.      Dissent says this is ex post facto.
c.       Statutory Clarity: a criminal statute should not be so broadly worded that it is susceptible to discriminatory enforcement officers, thereby unduly expanding government power. It should also be sufficiently clear that a person of ordinary intelligence can understand its meaning.
                                                              i.      Muscarello v. United States (1998)
                                                            ii.      Court determined the meaning of “carries” as included in the statute requiring five years imprisonment for drug trafficking to include a firearm within a person’s vehicle not just on their person. Here the court looked to the statutory language, legislative intent, but did not apply rule of lenity because there wasn't grievous ambiguity.
d.      Test: courts will interpret by looking at:
                                                              i.      Definition of the words
                                                            ii.      Legislative intent
                                                          iii.      If still ambiguous, then rule of lenity should apply an

ther, after viewing the evidence in the 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.
                                                              i.      Owens v. State
5.      Safety valves
a.       Prosecutorial discretion
b.      Jury nullification
c.       Sentencing
d.      Choice to appeal
e.       Executive pardon
1.      General Objectives in Sentencing
a.       “Because in some instances these objectives may suggest inconsistent dispositions, the sentencing judge must consider which objectives are of primary importance in the particular case. The sentencing judge should be guided by statutory statements of policy, the criteria in these rules, and the facts and circumstances of the case.” Cal. R. Court 4.410.
                                                              i.      Protecting society
                                                            ii.      Punishing the defendant
                                                          iii.      Encouraging the defendant to lead a law-abiding life in the future and deterring him or her from future offenses
                                                          iv.      Deterring others from criminal conduct by demonstrating its consequences.
                                                            v.      Preventing the defendant from committing new crimes by isolating him or her for the period of incarceration.
                                                          vi.      Securing restitution for the victims of the crime; and
                                                        vii.      Achieving uniformity in sentencing.
MPC § 1.02(2)
a.       To prevent the commission of offenses;
b.      To promote the correction and rehabilitation of offenders;
c.       To safeguard offenders against excessive, disproportionate or arbitrary punishment;
d.      To give fair warning of the nature of the sentences that may be imposed on conviction of an offense;
e.       To differentiate among offenders with a view to a just individualization in their treatment;
f.       To define, coordinate and harmonize the powers, duties and functions of the courts and of administrative officers and agencies responsible for dealing with offenders;
g.      To advance the use of generally accepted scientific methods and knowledge in the sentencing and treatment of offenders;
Retributivism: Punishment can be justified only insofar as it promotes some social good (proportionality balance)
                                                              i.      People have a choice and when they choose wrong they deserve to be punished