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Criminal Law
University of California, Berkeley School of Law
Murray, Melissa


1. What is Criminal Law: Conduct that incurs the moral condemnation of society.

Prosecuted by the State to make statement about common code of conduct.
Changes over time to reflect us as a community.
Serves a minimalist role i.e., not all morals are codified into law.

2. Criminal Law Themes

Common Law vs. Statutory law

i. State penal codes may have gaps; filled by common law
ii. MPC as model for laws without gaps, ambiguities, etc.
iii. Legislature best positioned to promulgate criminal law because they theoretically reflect us as a society.

Power of the State: One of the most violent forms of state power

i. Better to let a guilty man free than punish an innocent one.
ii. No appeals for the State.
iii. “Beyond a reasonable doubt” standard
1. Subjective because it is about local sensibilities
2. More than possible doubt; firmly convinced; real doubt; unwavering doubt
3. High but not impossible standard
4. Appeals Courts defer to trier of fact b/c closer to the case
3. Theories of Punishment: When to use punishment? (make sure its punishment)

Utilitarianism: punish only to increase happiness of community; punishment itself is evil so use just enough to prevent future crime.

i. General Deterrence (the threat not the punishment is key)
ii. Specific Deterrence (incapacitation/intimidation)
iii. Rehabilitation
iv. Premise: humans are hedonistic and rational

Retribution: punish because morally deserving.

i. Restoring moral equilibrium, don’t consider deterrence.
ii. Punishment reflects society’s moral condemnation of a crime.
iii. Premise: humans have free will and we punish the choice of crime.

Hybrid approaches:

i. Pick which crimes to use retribution or utilitarianism on
ii. “Limiting Retributivism”: Sentencing range based on retribution and actual punishment based on utilitarianism


1. Proportionality of Punishment
a. Policy: Proportional punishment needed to distinguish between crimes and/or deter criminals, but each theory weighs different concerns. Controversy more over length than types of punishment (i.e., hard labor).
b. Utilitarianism: punish only enough to achieve deterrence; can consider recidivism and need for incapacitation to achieve deterrence goals.
c. Retribution: only punish proportional to harm and culpability of current crime. Debt already repaid for previous crimes. Hard to measure harm.
d. 8th Amendment: No cruel and unusual punishment
i. Coker v. Georgia: Death penalty not ok for rape.
1. Consistent with retribution but not necessarily utilitarianism because D’s prior history of murder/rape.
ii. Ewing v. California: SCOTUS: Very narrow proportionality principle outside of death penalty, 3-Strikes okay.
2. Up to legislature to determine what theories etc. to use.

Statutory Interpretation: DPC (5th + 14th Amendment) requires crimes to be stated and clear to enable autonomous lives without fear that our conduct will lead to punishment.

1. Legality Principle: No (statutory) law no crime
a. Policy: R: Unjust to punish lawful conduct; U: can’t deter without notice.
b. Not about us tailoring our conduct; is a limit on the state.
c. Limits judicial expansion of statute and crime-creation.
i. Idea that legislature is best suited crime creation.
d. Commonwealth v. Mochan: reception statute for common law “offending public morals” crime.
i. M: Should distinguish between morals and crime
e. Keeler v. Superior Court: No crime bc feticide a misdemeanor at CL
i. Ct: Forseeability important, more fair for legislature to make law
2. Void for Vagueness if person of ordinary intelligence confused; must be sufficiently specific to provide fair warning of what is prohibited.
a. Policy: (1) Prevents the arbitrary enforcement of law and (2) makes courts look at plain meaning of law first.
b. Statue must at least put an ordinary person on notice to research more.
i. In Re Banks: onus on peeping tom to tread carefully
ii. Wainright v. Stone: Cts. previously clarified crime as sodomy
c. Statute should not give law enforcement too much discretion.
i. Anti-loitering statue encompasses too many innocent activities. City of Chicago v. Morales.
d. Ex.: “carry” a gun has broad interpretation of transport and narrow of on your person. US v. Foster.


Elements of a Crime: Actus Reus

Punish actions, not thoughts (though did in the past). M: Our bodies are the instruments that can cause social harm, not our minds. Idea of choice/opportunity to exert will.

1. Voluntary Act at CL a “willed muscular contraction or bodily movement”

MPC 2.01: Defines acts as “bodily movement.” Then lists examples of involuntary acts (reflex, unconscious, hypnosis, not result of effort, habit).
SCOTUS: cannot punish status offenses; public drunkenness not included (must punish for a specific voluntary act)
Coerced acts are voluntary.
Possession: must be terminated within a reasonable time after discovery.
Policy: U: distinguish bc cant deter involuntary actor; alternatively, punishment may force actors to be extra careful. R: only punish cho

to gross N.
ii. Only objective mental state

Material Element: MR req only applies to elements not restricted to statute of limitations, jurisdiction, venue, or non-harm related matters.

Concurrence Doctrine: Req causal connection b/w MR and AR at time of the crime.

3. Willful Blindness: Regarding “knowledge of attendant circumstances”

MPC 2.02(7): awareness of high probability of existence enough unless actually believes circumstance dont exist (willful blindness = knowledge).

i. Knowledge established by high probability alone.
ii. Ostrich” instruction that deliberately ignoring what would otherwise be obvious counts as knowledge.

CL: Also usually the same approach as MPC.
State v. Nations: Willful blindness = knowledge under MPC but not Missouri law.

4. Strict Liability: SL removes MR requirement; but there is a presumption against SL if a statue doesn’t mention a MR. Presumption can be overcome by considering:

Mostly for malim prohibitum (legislative creatures) crimes.
Usually restricted to public welfare offenses with light punishments for easy administration of low-stakes offenses.
Some exceptions such as statutory rape and excessive danger.
CL crimes typically have a MR because Congress presumed to adopt the “cluster of ideas that were attached to each borrowed word.”
MPC only allows SL for “violations” (no imprisonment) & Felony Murder. But would reduce punishment to what D thought attendant circumstances were if relevant.
Policy: R: No culpability; U: General deterrence of dangerous activities.

Case Applications:

Staples v. US: SL only if legislature specifically intended. Grenades vs. food stamps spectrum and question of where guns fall (SL only for naturally dangerous/highly regulated products that would alert D to regulation).
Morissette: Because statute derived from old CL crime, when no mens rea is specified we turn to the CL mens rea requirement.
Garnett v. State: Mistake of fact on age for statutory rape not a defense in MD.