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

I.      BASIC PRINCIPLES OF CRIMINAL LAW
A.    Themes:
1.    What is a crime? What is criminal law for?
2.    What distinguishes conduct worthy of criminal liability and censure from other conduct?
3.    Why would we choose to use the criminal law to address wrongs and encourage other types of conduct as opposed to some other system (like torts? Or contract?)? 
4.    Once we determine that certain conduct is criminal, how do we punish it? What limits on punishment do we observe?
B.    Sources of Criminal Law, CL 1-6
1.    MPC (Model Penal Code)
a.    Create uniformity in common law crimes and defenses and make it coherent
b.    Puts forth the definitions of crimes and how we decide on punishments; sometimes judges look to model penal code to interpret ambiguous statues
c.    States have the right to follow the model penal code, but not all do. Model penal code cannot be promulgated. Guide only. Some states use model penal code verbatim, others use parts of it.
d.    States are permitted to have their own criminal law (Federalism)
e.    What is the authoritative weight of the MPC? Depends on adoption level of a jurisdiction.
2.    Common law
a.    refers to law developed by judges through decisions of courts and similar tribunals (called case law), rather than through legislative statutes or executive action, and to corresponding legal systems that rely on precedential case law.
b.    Today, we have evolved from a judge-made common law, to criminal codes drafted and enacted by legislatures. How do we interpret criminal statutes in light of our common law tradition?
3.    Criminal statutes
a.    take the following format: A person who has done X has committed crime Y. Those convicted of crime Y will receive punishment Z.
4.    10th Amendment: “The powers not delegated to the United States by the Constitution, nor prohibited by it to the States, are reserved to the States respectively, or to the people.”
5.    Commerce clause: “[The United States Congress shall have the power] To regulate Commerce with foreign Nations, and among the several States, and with the Indian Tribes…” U.S. Constitution, Art. I, § 8, cl. 2.
a.    Federal Crimes (v. State Crimes): Securities fraud, Felon in possession of a gun, RICO (organized crime), Drug trafficking, Terrorism, Mail fraud, Antitrust violations
b.    State Crimes (v. Federal Crimes): Rape, Larceny, Burglary, Homicide, Robbery, Assault
C.   The Criminal Process
1.    Steps
a.    A crime occurs.
b.    Police detect and investigate the crime.
c.    Based on the results of these investigations, prosecutors make decisions about whether to charge an individual for the crime.
d.    Once the individual is arrested and has heard the charges against her (usually documented in an indictment or an information), she may either plea guilty or stand trial on the charges.
e.    Whether by guilty plea or by guilty verdict at trial, the defendant is convicted and later sentenced by a judge for the crime charged.
2.    Plea Bargaining
a.    prosecutors and defendants make their decisions about the plea based on what is likely to happen at trial – whether the government will be able to prove their case against the defendant beyond a reasonable doubt.
b.    If a case is not resolved by plea, it goes to trial, where ultimately the trier of fact applies the facts that it has found to the law as instructed by the judge to determine whether the state has proven the defendant’s guilt beyond a reasonable doubt.
3.    Owens v. State, CL 13-16 (Reasonable Doubt)
a.    Facts
i.      Call to the police about a suspicious vehicle
ii.     Trooper Cottman sent out to investigate and spots Owens in a truck matching the description of the suspicious vehicle. Truck is parked in a private driveway with lights on and engine running
iii.    Mr. Owens asleep in front seat, alcohol on his breath
iv.   Cottman administers sobriety tests to Owens – ABCs
v.    Owens refuses to submit a blood alcohol test
b.    Conclusions
i.      The burden of proof in a criminal trial is high – the prosecution must prove the defendant guilty beyond a reasonable doubt. This high burden underscores the presumption that the defendant is innocent until proven guilty, and is supposed to be a check on the state and its power to wield the criminal law.
ii.     While the reasonable doubt standard is high, it is not an impossible standard. It does not require the prosecution to eliminate all possible doubts.
iii.    Although there are many definitions that are used to instruct the trier of fact as to the reasonable doubt standard, they all seem to cohere around the general concept: the prosecution must eliminate all reasonable doubts.
D.   Principles of Punishment
1.    Theories of Punishment, CL 30-48, MPC § 1.02 Why, Who, and How Much?
2.    Utilitarianism –
a.    Jeremy Bentham – All punishment is mischief and can only be justified insofar as it promises to exclude some greater evil.
b.    Purposes
i.      General deterrence – Allow punishment because it deters others in society from committing bad acts.
ii.     Specific deterrence – Allow punishment because it deters the wrongdoer from committing future crimes.
iii.    Incapacitation – Allow punishment because it removes the offender from society, incapacitating his deviant impulses.
iv.   Rehabilitation/Reform – Allow punishment because it allows the offender an opportunity to reform his character and return to society as a law-abiding and productive citizen.
c.    Retributivism
i.      Immanuel Kant – We punish because a wrong has been committed.
ii.     Michael Moore – Punishment is justified because the offender deserves to be punished for the wrong committed.
iii.    James Fitzjames Stephen – Punishment is justified because it expresses our collective hatred of the crime and the offender.
iv.   Herbert Morris – Punishment is justified because, in committing a wrong, the offender has availed himself of the benefits of society but has refused to assume the burden of being law-abiding. Punishment recalibrates this balance between benefits and burdens.
v.    Jeffrie Murphy & Jean Hampton – Punishment is justified because it allows the victim to vanquish the offender and assert that he is equal to the offender.
3.    The Queen v. Dudley and Stephens, CL 48-50
a.    Utilitarian perspective:
i.      Parker would have died anyway
ii.     They all would have died if they hadn’t killed Parker
iii.    Dudley and Stephens are good men – they would not have done this but for the exigent circumstances
iv.   Unlikely to do this again
b.    Retributivist perspective
i.      Dudley and Stephens killed the boy so they should be punished
ii.     Morris – the whole idea of a social contract should not apply here; people are eating turtles!
4.    People v. Superior Court (Du), CL 50-53
a.    Facts
i.      History of gang threats to the store and owners
ii.     Altercation between victim and D (victim punched D twice in eye)
iii.    Gun was altered
iv.   D had never used the gun before
v.    D had no prior criminal history
vi.   D unlikely to be a recidivist
vii. D expressed no remorse for victim or victim’s family – only concerned about the effect on her family
5.    People v. Du & Note 4, CL 53-59
E.    Proportionality of Punishment
1.    MPC 1.02(2)(c): “The general purposes of the provisions governing the sentencing and treatment of offenders are: … (c) to safeguard offenders against excessive, disproportionate or arbitrary punishment.”
2.    Constitutional Principles, CL 69
a.    8th Amend: “Excessive bail shall not be required, nor excessive fines imposed, nor cruel and unusual punishment inflicted.”
b.    In Weems v. United States, 217 U.S. 349 (1910), the Supreme Court interpreted this constitutional provision to contain an implicit requirement that “punishment for the crime … be graduated and proportional to [the] offense.”
3.    Utilitarian on proportionality:
a.    Punishment cannot be less than is required to outweigh the potential profit to the criminal of committing the offense.
b.    The greater the mischief of the offense, the greater the expense of punishment required.
c.    Offenses must be graded in a manner that would induce a person to choose the lesser of two possible offenses.
d.    Punishment should be set in a manner to induce the criminal to do no more harm than is necessary for his purpose.
e.    Punishment should not be more than is necessary to bring it in conformity with the above stated rules.
f.     Emphasizes things like specific deterrence, general deterrence, incapacitation, rehabilitation – what punishment will be necessary to further social good while minimizing the amount of mischief caused by the punishment
4.    Retributivist on proportionality:
a.    Don’t “rape the rapist”: goes against retributivist principle that the offender is a human – has a right to being treated like a human (critique of Utilitarianism is that you are using the human for a purpose)
b.    We can punish “in kind” as opposed to “rape the rapist”
c.    Emphasizes the nature of the wrong and the harm c

etc.)
7.    Examples:
8.    Commonwealth v. Mochan, CL 88-91
a.    Facts: lewd phone calls to a married woman on a four-party telephone line; Charged with intending “to debauch and corrupt, and further devising and intending to harass, embarrass and vilify”
b.    Holding: phone calls may be immoral, but are not illegal, and therefore D is not guilty
9.    Keeler v. Superior Court and Note 1, CL 91-99
a.    Facts: D caused the death of a fetus. Is causing the death of a fetus murder of a human being as defined by statute?
b.    Holding: No. 
i.      It’s the legislature’s job to make laws. Not the court’s. 
ii.     Due Process requires that the terms of a penal statute creating a new offense be explicit so that people can conform their conduct to the statute. This is impossible to do if the courts are expanding the scope of criminal liability in individual cases.
iii.    Further, similar concerns as those relates to the creation of ex post facto laws. Defendant cannot be convicted for an action done before the enactment of the law making it criminal. Only permitted if the enlargement would have been foreseeable.
iv.   Courts must construe the terms of criminal statutes strictly.
10. In re Banks and Notes 3 & 8, CL 101-09 Statutory Interpretation of “secretly”
a.    Facts: D convicted for “secretly” peeping into a room. D claims statute is unconstitutional because “secretly” is vague (“void for vagueness”)
b.    Holding: No. Statute is constitutional. Court finds “secretly” is clear enough for a reasonable person to understand.
11. City of Chicago v. Morales, CL 109-15: Statutory interpretation of “loiter”
a.    Facts: Does loitering statute enacted to combat criminal street gang activity violate due process?
b.    Holding: Yes. It is constitutionally vague because an ordinary citizen cannot figure out what is illegal vs legal.
12. United States v. Foster, CL 116-25: Statutory interpretation of “carry”
a.    Facts: D pulled over by police with semiautomatic weapon in trunk of his vehicle. In addition to manufacturing of meth convictions, D convicted of “carrying a firearm” 
b.    Holding: Conviction overturned because D did not carry firearm on his person.
II.    ELEMENTS OF A CRIME
A.    Four Elements of a Crime:
1.    Actus reus (voluntary act)
2.    Mens rea (culpable intent)
3.    Concurrence (between mens rea and actus reus)
4.    Causation of harm
B.    Actus Reus
1.    General Principles, CL 126-27, MPC § 2.01
a.     Voluntary Act: D must have committed a voluntary act.
i.      Mere thoughts are never punishable as crimes, even a diary entry that says “I intend to kill V.”
ii.     Possession may constitute necessary criminal act (but must be conscious possession)
iii.    Act cannot be involuntary (reflex, convulsion, unconsciousness, sleepwalking hypnosis)
1.    Exception: if state of unconsciousness is voluntarily induced through use and consumption of alcohol or drugs, that that state of unconsciousness does not attain the stature of a complete defense. (Utter).
b.    Examples
i.      Martin v. State and Notes, CL 127-29 (Alabama)
1.    Facts: D convicted of being drunk on a public highway after he was involuntarily and forcibly carried to a place by arresting officer.
2.    Holding: Conviction overturned. D did not commit a voluntary act.
ii.     State v. Utter, CL 129-32 (Washington)
Facts: D charged with murder in 2nd degree. D was convicted by a jury of the crime of manslaughter. D appeals. D was very drunk when he stabbed his son in the chest. D claimed a conditioned response caused him to stab his son because of his experiences in jungle warfare in WWII.