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Criminal Law
University of California, Berkeley School of Law
Zimring, Franklin E.

Criminal Law – Prof. Zimring, Berkeley Law – Fall 2008
First, few guiding quotes from the course:
(1) What do we do about punishment options if we decide to be extremely inclusive about who is guilty?
(2) Never look at one statute alone – look above and below
There are two levels of analysis that are necessary and useful in looking not at 210.2, which is the definition of murder in the MPC, but in looking at all of 210 through 210.4:
(1) Analyze the language in each provision
(2) Analysis of the structure and relationship of the various different grades of criminal homicide in the MPC
(3) Grading is about punishment – not whether something is criminal, but how criminal it is – Changes the subject from the victim to the offender
    – If we need to deliberate on indifference to human life, try Souter dichotomy on p. 434.
    – 439 – Felony murder policy
 (4) Defense of the insanity defense: Wechsler: We get security from knowing that we will only receive social condemnation for volitional acts. – p. 888
(5) With criminal punishment, finding what the trade-offs, pressure points, and dilemmas are, rather than the right answer – morality key, as is protection of society
(6) Retributivist – Watch for proportion. Utilitarian – Watch for deterrence. Incapacitation – person may not be likely to commit crime again. Rehabilitation – Does it seem likely to work?
(7) What is utterly central to the MPC as a law reform exercise:
(1) Emphasis on mental state, rather than actus reus, both in terms of borderland and grading issues
(2) Set of doctrines about mistake which are the important domains which test the mens rea emphasis
(8) Borderland v. Grading
·                       Grading tells us just how bad the offender is. This is key.
(9) Difference between law on the books and law in action? Two basically different ways of filtering cases:
(1) Legal standards
(2) Discretion of prosecuting attorneys
I. Actus Reus
Voluntary Act
Common Law – requires a voluntary act in order for something to be considered criminal
·         memory loss – an act is not involuntary simply because they don’t remember it
·         habits are voluntary
·         C/L doesn’t really recognize hypnosis
MPC §2.01
Requires a voluntary act or omission of which actor was physically capable
§2.01 (2) – Exempted non-actions
(a) Reflex or convulsion –
(b) Bodily movement during unconsciousness or sleep (People v. Newton – shooting officer while “unconscious” – 184)
(c) Hypnosis – conduct during or resulting therefrom
(d) bodily movement that otherwise is not a product of the effort or determination of the actor, either conscious or habitual
§2.01(3) Liability may not be based on an omission unaccompanied by action unless:
(a) the omission is expressly made sufficient by the law defining the offense; OR
(b) a duty to perform the omitted act is otherwise imposed by law.
§2.01(4) – Possession is an act if the possessor knowingly procured or received the thing possessed or was aware of his control thereof for a sufficient period to have been able to terminate his possession.
B. Class cases
1) Cruel and unusual to punish for illness or mere “status” as an addict. (Robinson v. California) (CA statute makes it a criminal offense for a person to “be addicted to the use of narcotics.” D with needle scars charged.)
(i) Punishing for continuous criminal liability neglects actus reus element. (3) statute fails to require that any criminal act be committed within the jurisdiction.
(ii) Issues: Stigma of criminality is the harm, not just confinement. Desire to commit a criminal act (addiction) is not in itself a criminal act.
(iii) MPC outcome: Seems to fall under (d) – No actus reus
2) If status leads you to commit a crime, you can still be charged (Powell v. Texas)(D charged with violating statute against appearing drunk outside of one’s home. Expert says D is compelled to drink because he is a “chronic alcoholic.”)
·         Court did not agree that this fell under a mere status, because the defendant had taken actions to break the law
·         Issues: “Hospitalizing” drunks without outside statutory limits of incarceration leads to indefinite lock–up.
3) Police Taking a man to location is not a voluntary act Martin v. State – 182)
No actus reus – commission of some voluntary act that is prohibited.
(iii) Issues: State impropriety. Sense of entrapment makes it easier to dismiss charges.
4) Where not self-induced, unconsciousness is complete defense to homicide (People v. Newton 184)(D shot in abdomen and claims he lost consciousness before killed police officer. Ct finds that unconsciousness under CA penal code
   **Note: doesn’t claim accident b/c felony-murder rule.
5) Can’t disregard condition that interferes with state of mind. Driving with epilepsy voluntarily ruled culpable negligence when 4 die (People v. Decina)
C) Discussion
a. We include voluntary act requirement because we don’t want to condemn people for behavior they can’t control. You can’t deter it.
b. Issue of intoxication – Voluntary with regard to first aspect of criminality means that you are also liable for involuntary consequences which follow (look for 2.01 justification)
c. Time Framing – Going backward to choose a moment of culpability, like Decina choosing to drive, not having involuntary seizure.
·         Michael Moore argues that time-framing isn’t necessary. Just look to proximate cause, and see if D had culpable mens rea at that moment.
Omissions  MPC § 2.01(3)
 Common Law – D may criminally liable for an omission to act when there is a legal duty to act. (There’s a general rule though that D is not guilty even if failure could have prevented harm with no risk to personal safety. has to be a duty there.
***Specific Duties outlined in Jones v. United States (192)
 MPC § 2.01 (3)
Omissions will not lead to liability unless the omission is made a crime by law OR a duty is imposed by law.
A person has a duty when:
(i) Statutory duties
Good Samaritan statute
(ii) Status relationship
-One who acts as the functional equivalent of a parent is responsible for child’s care. Stepmother convicted for not stopping husband from killing his daughter. (People v. Carroll)
·         Duty not abrogated when parent is also a victim (Commonwealth v. Cardwell)
Spouse-spouse, Master-servant, Innkeeper-inebriated customers
(iii) Contractual duty to care for another
Lifeguard, Babysitter, Caretaker, Doctors
(iv) Voluntary assumption of care
Must continue to assist if a subsequent omission would leave the victim worse off than if never helped
Secluding a person from other sources of aid
(v) Creating the risk (Jones)
Intentional or inadvertent creation of risk creates a duty
1) In order for a person to be found guilty for an omission, there must first be a legal duty to act. (Jones v. United States (D.C. 1962)
2) A person does not assume responsibility of a child merely by extending a hand of kindness, even if it is thought that the parent or guardian is incapable of caring for the child. Moral obligation =/= legal duty. (Pope v. State)
3) People v. Beardsley (MI 1907) (widely criticized)
(i) Facts: woman at Ds house took fatal dose of morphine, he didn’t help her
(ii) Rule: not guilty because there was no legal duty as exists in law.
4) Duty to attempt to preserve life of a person from danger you have criminally placed in dangerous situation (Jones v. State)
Why does it matter? Different level of knowledge/culpability between pu

ing of the law, even if a reasonable person would have similarly misunderstood the law. However, she is excused if she reasonably relies on an official statement of the law, later determined to be erroneous, obtained from a person or public body with responsibility for the interpretation, administration, or enforcement of the law defining the offense.
                                                                                         a. Statute later declared invalid
                                                                                        b. Judicial decision of the highest court in the jurisdiction later deemed to be erroneous.
                                                                                         c. An official, but erroneous interpretation.
C. Mistake that negates mens rea
                                                                       I.            A mistake of law, whether reasonable or not, will not usually negate any mens rea element found in the definition of the crime.
                                                                    II.            MPC 2.02(9)- knowledge the conduct is prohibited is not an element of the offense. Therefore mistake of law would not negate mens rea.
D. Mistake of law is provided for by statute MPC 2.04(1)(b)
Note on Rationale of Ignoratia Legis
                                                       ·            Prevent defendants from making their own penal code.
BUT: Refusing to excuse reasonable mistakes discourages investments in legal knowledge by making it hazardous for a citizen to rely on her private understanding of the law.
B. Mistake of Fact
Common Law:
I. Specific intent offenses- a person is not guilty of an offense if his mistake of fact negates the specific-intent portion of the applicable
II. General Intent offenses – The ordinary rule is that a person is not guilty of a general-intent crime if his mistake of fact was reasonable,
    but he is guilty if his mistake was unreasonable.
MPC 2.04(1)
(1)- Mistake is a defense if it negates the mens rea required to establish any element of the offense.
(2)- The defense of mistake-of-fact is not available if the actor would be guilty of another offense, had the circumstances been as he supposed. We reduce grade and degree of the offense to parallel conditions in his dream world.
1. “Lesser crime” – If mistaken about an attendant circumstance but guilty of a lesser crime, court may find D guilty of higher crime (Prince)
2. “Moral wrong” – Mistake of fact no defense when what the person thought he was doing was immoral. Strict liability imposed for not knowing girl’s real age when he took her out of father’s possession. (Regina v. Prince)
Rationale of each: Deserves punishment for having committed a lesser crime, or for having violated moral teachings
Acoustic Separation: A single criminal statute says one thing to public to guide moral conduct, another to officials to direct decision rules.