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Criminal Law
University of California, Berkeley School of Law
Roth, Andrea

Criminal Law

Roth – Fall 2015

Introduction to Substantive Criminal Law

The Limits of Criminal Law and the Purposes of Punishment (Why do we make some conduct/harms “crimes”? Why and how do we punish?)
Mechanics and Realities of the Criminal Justice Process
Practical Overview of the Criminal Justice System

The (theoretical) right to jury trial
Prosecutorial discretion / plea bargaining
Judicial discretion / sentencing

Mechanics of a “crime”

Primer on principles of statutory interpretation
Actus Reus (Guilty Act), MPC § 2.01
Mens Rea (Guilty Mind), MPC § 2.02

Four MPC mental states (purpose, knowledge, recklessness, negligence)
Relationship between actus reus and mens re
Strict Liability, MPC § 2.05
Mistakes of Fact and Law, MPC § 2.04

Causation, MPC § 2.03

Homicide, MPC § 210.0-210.4

Intentional killings

Premeditated murder
Voluntary manslaughter (“heat of passion”)

Unintentional killings

Depraved heart” a.k.a. “extremely reckless” murder
Involuntary Manslaughter
Negligent homicide.

Felony murder and misdemeanor manslaughter

Selected Affirmative Defenses

Self-Defense, MPC §§ 3.04, 3.09, 3.11
Insanity and Diminished Capacity, MPC §§ 4.01, 4.02
Intoxication, MPC § 2.08

Rape, MPC § 213.0-213.4

Attempt, MPC § 5.01

Aiding and Abetting (a.k.a. Complicity, Accomplice Liability), MPC § 2.06

a. Offense.

b. Attempts to aid and aiding attempts.

Conspiracy and Pinkerton liability, MPC § 5.03


The Limits of Criminal Law and the Purposes of Punishment (Why do we make some conduct/harms “crimes”? Why and how do we punish?)

Why make some conduct/harms crimes?

Crimes are wrongdoings against society and public welfare; civil offenses are individual v. individual
Criminal law traditionally has not been about making the victim whole
The things we make crimes in general is acts that the community thinks are worthy of public condemnation by the state
Should criminal law guide what the typical behavior should be or should it reflect the typical perception of society? (e.g. Goetz)
Should statistics be used? They can be objective but used in a subjective way/easily manipulated
Should criminal law focus on individualized justice or objectivity?

Why and how do we punish?

Three distinct facets of punishment call for justification

General justifying aim: why do we set up social institutions that impose punishment?
Distribution: why do we impose punishment on a particular individual?
Degree: what justifies the amount of punishment imposed in a given case?

What are we trying to punish – guilty mind, voluntary conduct, harm caused, and/or moral blameworthiness?

What constitutes blameworthiness – harm caused or mental state?


Conviction, prison, death penalty, shaming, non-incarceration sanction, fines, making amends to society/“victim”, community service, restitution (pay for damages you caused)
Forced probation?

This is NOT a punishment, requires the consent of the individual
Paternalistic, a violation of personal autonomy

Sex offender registry? Mental health confinement?

Not considered to be punishment, considered to be civil regulation and ‘safety’

Theories of Punishment

Retributive (just deserts, what they deserve)

Backward looking, focus on blameworthiness of behavior
Links the degree of punishment to moral culpability (not on the harm done, that is called retaliation)

Negative retributism

The guilty may be punished
Guilt is necessary but not sufficient

Positive retributism

A society must punish the guilty
Guilt is sufficient condition for punishment

Ds should not be used as means to societal ends
Prevent unjust enrichment
Social utility: stop private vengeance and fosters social cohesion


Is punishment evil when done just for the sake of punishing someone?
Equivalence theory leads to excessiveness or barbarism?

Forward looking, justification lies in the useful purpose it serves
Judges social policy on costs and benefits


Specific: targeted to prevent D from committing crime again
General: prevent others from committing the same crime

Better society by preventing future harm
Avoids “evil” of punishment for its own sake

Rational actors must know punishment of what they may know and must know costs/benefits of the punishment/crime
Cannot use one person to solve community’s problems


Prevents criminals from committing another crime
Debate about effectiveness and ethics of selectively incapacitation based on future dangerousness


Opportunity costs in society (could be working, learning, raising child, etc.)
Monetary costs for society
Emotional toll on prisoners and their families

Selective incapacitation: people can get longer sentences because court thinks they will commit additional crim

Proof that leave you with an abiding conviction that the charge is true; evidence need not eliminate all possible doubt because everything in life is open to possible or imaginary doubt

Motion for judgement of acquittal (MJOA) – arguing that no rational juror can find guilt beyond a reasonable doubt; usually denied
Defense case
Renew MJOA (usually denied)
Government rebuttal
Jury instructions – each side usually fights about what instructions should be
Closing arguments

If there is an acquittal, the gov’t can’t appeal

Intermediate: a range of years you might serve (10 to 20) and they check in on you and you appear before the parole board

This happens much less frequently

Determinate: actual value of years you can serve and 85% of the way through, you eligible for parole potentially

Practical Overview of the Criminal Justice System

The (theoretical) right to jury trial

This is a fundamental right applicable in state prosecutions through the 14th/6th amendment
Jury serves as a check of official power
Juries are important because:

Juries are “one of us”
They keep power of judge in check (sometimes judge needs to be reelected; judges are paid by the state)
Juries are better than we think; can assess evidence and decide similar to judges

Studies done that prove that juries don’t usually make decisions that are contradictory to judge and if it is, it’s because they have understood and disagree with the judge

Juries typically do not know about possible punishments when deliberating
Duncan v. Louisiana (SCOTUS, 1968): Duncan denied jury trial for a battery charge in racist NOLA jurisdiction

Rule: jury trial is fundamental right for serious crimes

If penalty is under six months, judge will be the fact finder

Jury nullification: jury reaches verdict contrary to the weight of the evidence; ultimately, jury has power to acquit for any reason whatsoever

Not all jurors know about it; power, not alright and not essential to jury trials