Select Page

Criminal Law
University of California, Hastings School of Law
Lee, Evan Tsen


A.       Building blocks of criminal law
1.       Actus reas (voluntary act): needed to be convicted of a crime, though by itself, is not an indictable offense
2.       Mens rea (“evil mind, “culpability”): usually must be present in order to be indicted (but again, cannot be convicted on mens rea alone)
3.       Jurisdiction: political legitimacy of exercising power over an individual
i.         Example: if a crime is committed in AZ, the perpetrator cannot be convicted in CA
B.       Examples of indictable offenses
1.       Crimes where individual actually causes harm: murder, rape, arson, etc.
2.       Crimes where harm doesn’t necessarily occur, but perpetrator took a socially unacceptable risk of causing it: DUI, reckless endangerment, etc.
3.       Crimes where the individual’s actions cause social disgust: bigamy, adult consensual incest, etc.
i.         Is social disgust acceptable justification for criminalizing behavior?
4.       Crimes involving accomplice liability: if A is the robber and B is the getaway driver, B can still be guilty of the same offenses as A based on the accomplice theory
i.         However, there is no indictable offense for being an accomplice
C.       Liability
1.       Liability extenders: rules that make one person responsible for the crimes of another person
i.         They can also make one person responsible for what would otherwise not be a crime
ii.       Accomplice liability is one example of a liability extender
2.       Strict liability: no mens rea required
i.         Example 1: failing to file a court document, because it already states on the document that failing to do is an indictable offense
ii.       Example 2: recidivist statutes that punish repeat offenses (“Three Strikes” law)
iii.     Example 3: “Pinkerton” doctrine (conspiracy): If A, B, and C are bank robbers but A was the only perpetrator that murdered someone, then B and C will also be guilty of murder even if they did not see, hear, or plan the shooting à co-conspirators
a.        The murder in the bank robbery was a foreseeable offense
b.       B and C will be guilty of murder and of conspiracy of robbery
3.       Liability limiters: rules that limit or eliminate criminal responsibility because the individual had no control over the matter, or because the individual had a legitimate reason to be engaging in what would otherwise be criminal conduct
i.         These four are most typical and are used as affirmative defenses:
a.        Duress: usually only valid in extreme cases (see State v. Scott, where D was a gang member who would help abuse new gang recruits)
b.       Necessity: see The Queen v. Dudley & Stephens, cannibalism case
c.        Insanity: see Clark v. Arizona, where D shot a police officer but had undisputed paranoid schizophrenia (rarely successful defense)
d.       Entrapment: can usually be used only when a government agent is involved
D.      The “ordinary reasonable person” standard
1.       Due to its ambiguity, it presents a problem on how it should be conveyed
i.         How much context do we take into account?
ii.       What is deemed relevant?
2.       Usually, “ordinary” means middle-aged white male
E.       The general justifying aims of criminal law
1.       Deterrence (forward-looking approach): a defendant is punished to convince the generally community to forego criminal conduct in the future, and it instills fear of punishment in would-be violators of the law
2.       Retribution (backward-looking approach): punishment is justified when it is deserved and it is deserved when the wrongdoer chooses to break society’s rules
3.       Incapacitation: imprisoning a defendant prevents him from committing additional crimes during this segregated period because D is harmful and there is a risk D will repeat his crimes
4.       Rehabilitation: use of correctional system to reform the defendant rather than to secure compliance via punishment (though there is heavy debate as to whether this is effective)
5.       Social disgust: again, not sure if this is justified as an indictable offense

I.              ACTUS REUS   
A.       One goal of criminal law: punish only blameworthy people 
1.       Criminal law sorts blameworthy from non-blameworthy by asking two questions:  
i.         Actus reus element: did this person do something socially undesirable? (Usually some harmful or risky conduct)  
ii.       Mens rea element: Did this person have a culpable state of mind when he or she did it? (Mental state necessary to commit offense) 
2.       Criminal law generally punishes only when answers to both questions are “yes” (i.e., typical offense contains both an actus reus requirement and a mens rea requirement)  
i.         Example 1:  common law murder = killing of another human being with malice aforethought   
a.        Actus reus = killing of another human being 
b.       Mens rea = malice aforethought  
ii.       Example 2:  common law larceny = taking and carrying away of personal property of another with intent to permanently deprive person of ownership  
a.        Mens rea = intent to permanently deprive  
b.       Actus reus = taking and carrying away of personal property of another 
iii.     Time to worry? When legislature creates a statute that is missing either actus reas or mens rea
B.       Actus reus in general
1.       Requires either a relevant voluntary act or omission to act where there is a legal duty to act 
i.         Criminal law does not punish for evil thoughts alone  
a.        Criminal law should not be so broadly defined as to reach those who entertain criminal schemes but never let their thoughts govern their conduct
ii.       Act must be voluntary because person not blameworthy if all relevant acts involuntary 
2.       Definition of “voluntary” is controversial; much disagreement from jurisdiction to jurisdiction  
i.         Oliver Wendell Holmes:  voluntary act is a “willed muscle contraction”   
ii.       Model Penal Code (not itself the law):  refuses to define voluntary; instead, lists acts that are NOT to be considered voluntary:  
a.        Reflex or convulsion  
b.       Movement during unconsciousness or sleep  
c.        Conduct during hypnosis or post-hypnotic suggestion   
d.       Residual clause (“conscious” or “habitual” acts ARE voluntary)   
3.       The duty to act and the failure to do so as a criminal offense
i.         A person can be punished for a failure to act only if he or she had a legal duty to act   
ii.       Duty to act can be established only by the following circumstances:  
a.        Statute imposes duty  
1)      Example: failure to file income tax return is criminal only if one has a statutory duty to file  
b.       Status relationship imposes duty  
c.        Contract creates duty  
d.       Duty was voluntarily assumed, then abandoned, thereby leaving victim in a worse position (therefore, if you decide to rescue someone, FINISH THE JOB)
e.        Status as landowner imposes duty  
f.         Tort duty to control certain third persons (e.g., children, employees)  
1)      Brings up Columbine debate: should the parents of the shooters have known about what they were doing? Even if not, should they be held liable regardless?
g.        Defendant created peril in first place 
C.       Omission theory
1.       CASE: Jones v. United States, p. 147
–       Two children were found malnourished and sick at Jones’ residence.  One died at hospital. Original court found Jones guilty of involuntary manslaughter due to failure to provide food & necessities. Appellate court reversed and remanded based on failure of court to instruct jury that it must first find that the appellant was under a legal obligation to provide food and necessities to the deceased. 
–       Conviction of involuntary manslaughter on omission theory must be reversed where jury was not instructed on necessity of finding legal duty to act (if there’s no legal duty, then there’s no indictable offense based on the omission theory)
–       Result: NOT guilty of involuntary manslaughter
2.        New Bedford “Gang Rape” case:  four men at a bar raped the victim while other bar patrons simply watched and did nothing. Some even cheered. Result: guilty of aggravated rape.
3.       Criminal law imposes no general duty to rescue
i.         One option: Criminal law could impose duty to rescue where one can do so without significant risk to one's self
ii.       Another option:  Criminal law could impose duty to inform authorities when one is reasonably certain that another is in serious peril
iii.     Omission to act cases are usually only ones where duty to act comes up…
4.       Omission itself is not an indictable offense
i.         You can charge a defendant with something else (that he did do) on an omission theory
D.      Possession
1.       Possession as a special instance of the act requirement
i.         In order to be guilty of possession of contraband, one of the following statements must be true:
a.        Defendant deliberately obtained contraband
b.       Defendant knowingly received contraband; OR
c.        Defendant failed to terminate control over contraband after having a sufficient amount of time to terminate it
2.       Possession is defined as control or dominion over something
3.       Two kinds of possession
i.         Actual: physical, on your person (hand, backpack, etc.)
ii.       Constructive: not on your person but you have control over its destiny (ex.: a deposit of drugs into a safety box)
a.        “Fictitious,” assumed, pretended
4.       Problem:  when does defendant have “control”?
5.       CASE: Wheeler v. United States, p. 156 (possession)
–       Neighbor tipped off police that defendant had heroin in her apartment. When the police arrived, the toilet was flushed and a bag of heroin was found in presumably the defendant’s bed. Court ruled that proximity alone is not enough; there needs to be proof of criminal enterprise.
–       Holding: the defendant had sufficient control over heroin because there was circumstantial evidence that she tried to eliminate the incriminating evidence and she had knowledge of the illegal act
–       Result: guilty of constructive possession.
6.       CASE: People v. Ireland, p. 159 (possession)
–       Husband’s wife brought home massive amounts of marijuana. Husband attempted to confront her about it, but she threatened to leave him. Thus, he did nothing.
–       Simple possession means just having control or dominion, whereas aggravated possession is the intent to distribute (much worse)
–       Holding: conviction reversed because jury might have been misled into thinking that mere knowledge of contraband, without control, was sufficient (defective jury instruction). Essentially, knowledge of the contraband does not necessarily equal control
–       Control does not mean “immediate and exclusive control”; control can be joint
–       Result: NOT guilty of constructive possession
7.       Logical inference from Wheeler and Ireland is that control means appreciable, but not necessarily exclusive, control
i.         Note: control need not be “immediate”; one has “constructive” possession over remotely located items to which he or she has special access
E.       Status crimes
1.       “Voluntary act” requirement contains two distinct aspects:
i.         “Act” requirement: no punishment for mere thoughts
a.        Issue: If we could read people’s minds accurately, would it be acceptable to punish them for forming the firm intent to commit harmful acts?
ii.       “Voluntary” requirement: actor must be blameworthy in some way for his act
a.        Issue: Are people really blameworthy for their acts when such acts grow out of status?
2.       Black letter law = status crimes are generally unconstitutional
i.         Unchangeable aspects: national origin, race, gender, possibly sexual orientation
ii.       If we can figure out that X is status, then X cannot be criminalized
3.       CASE: Robinson v. California, p. 163 (status crime)
–       Appellant was convicted of being a heroin addict (he did not have contraband on his person, but it was obviously in his body). It could be interpreted as a state/condition of an addict, or as someone who habitually uses narcotics.
–       Holding: it was not up to SCOTUS to interpret state law; only state supreme court could do that
–       The court likened narcotic addiction to other illnesses (mental illness, venereal disease, etc.). Moreover, they probably were sympathetic since this was in the 1960’s and drug abuse was seen as more pitiful than dangerous – it was seen more as a physical rather than a moral sickness. Punishment based on status was seen as a violation of the Cruel and Unusual Punishment Clause of the 8th Amendment
–       Result: NOT guilty of possession

4.       CASE: Powell v. Texas, p. 164 (“Notes” section; diverges from Robinson)
–       Appellant was convicted of public intoxication. Psychiatrist testified that once Powell started drinking, he had no control over his actions due to impaired judgment.
–       Holding: SCOTUS majority ruled on policy grounds. State may punish public intoxication even when the actor is an alcoholic, because appearing in public is a voluntary act. Lastly, they rejected an application of Robinson b/c they were worried that it would open floodgates to other defenses of “compulsion”
–       Result: guilty of p


1.       CASE: People v. Wendt, p. 197
–       Defendant failed to file his income tax return. He claimed he interpreted the Constitution and Illinois statute to mean that he was not required to file it.
–       Analyzed as a “mens rea”-type mistake: the question is whether this statute requires knowledge of the duty to file a return (different law argument = the U.S. Constitution says differently)
–       Analyzed as an “estoppel”-type mistake: the question is whether the defendant reasonably relied on precedent (same law argument = you changed it on me and it’s not fair)
–       Holding: the prosecution does not need to prove that the defendant didn’t know the law. He just knew that he was failing to file, which was in violation of the law already
–       Result: guilty of failure to properly file income tax returns
2.       The “cultural defense” (mistake-of-law defense)
ii.       We all have to be treated equally
a.        Yet we always see culture as a defense. Why?
1)      Because we are a country of immigrants: cultural defendants try to use it to mitigate their guilty or their sentence based on background
iii.     What might be meant by the phrase “cultural defense”?
a.        An “estoppel” or “same-law” type defense based on the alleged unfairness of holding someone to laws wholly unfamiliar in the actor's native culture
1)      Example: in A's native country, someone audited by the tax collector is expected to give an “honorarium” to the collector before the audit; when A offers such an honorarium to an IRS agent, he is prosecuted for bribery. A argues that his ignorance of American bribery law should support an estoppel-type defense
2)      No reported case upholds an estoppel-type defense on the basis of culture
b.       A “mens rea” or “different-law” type defense where evidence of the actor's culture helps explain why the actor lacked the requisite mental culpability for the charged offense
3)      Example: in B's native country, insults directed at one's grandmother are considered particularly offensive, impugning the entire family's honor – when B kills C for such an insult, he seeks to introduce evidence of this cultural norm to help explain his extreme emotional disturbance (which would reduce murder to voluntary manslaughter)
4)      A few cases uphold mens rea-type defenses based on culture; some have rejected it based on policy concerns
iv.     Informing the jury or judge of the actor's native culture in the hope that it will be considered informally in the guilt phase or sentencing (“walk a mile in the defendant’s shoes”)
3.       CASE: Nguyen v. State (casebook supplement)
–       Defendant assaulted her husband and his mother because she was being verbally abused. The defense offered evidence in support of affirmative defense (self-defense versus assault charge)
–       Mens rea argument: because of my cultural background, I’m not guilty à my cultural background deprived me of my mental culpability needed to be convicted of the offense
–       Estoppel argument: I was trying to do the right thing but now you indicted me, and it’s unfair (what I did would be considered “right” in my country)
·         Virtually indefensible, rarely works
·         Would breed or encourage ignorance of the law
–       Holding: Even considering cultural evidence, a reasonable person in D’s situation would not actually perceive imminent physical attack (which is nec. for a self-defense argument). However, the court leaves open the possibility that cultural evidence might be admissible to help demonstrate that a reasonable person in the defendant’s situation would perceive such an imminent attack.
–       Result: guilty of assault/battery
4.       CASE: Lambert v. California, p. 222
–       D was a convicted felon that failed to register as a convict in the city of LA, which is legally required no later than 5 days after conviction. Lambert was charged with a violation of this registration law.
–       Holding: D was given no notice of her duty to register. There was no way to ask for something that you were not aware of. By the time she knew about the registration requirement, she had no opportunity to avoid the penalty (estoppel argument).
·         Mens rea argument would have been incorrect b/c she was technically guilty of failing to register, but the law was so unfair that it was unconstitutional
–       The court believed that actual knowledge of the duty to register or proof of the probability of such knowledge and subsequent failure to comply is needed to convict
–       Result: NOT guilty of failing to register as a convicted felon in city of LA
F.       Intoxication
1.       MPC approach: If you were charged a crime that required knowledge, and you were so drunk you didn’t have that knowledge à not guilty
2.       Common law approach (specific v. general intent): if charged with specific intent offense (like larceny) and they were drunk that they could not form the intent to steal, then they are not guilty of the intent to steal
i.         If it’s specific intent they are charged with, then in theory D can claim voluntary intoxication as a defense against specific intent to steal, murder, etc.
3.       If it’s general intent, then they are guilty regardless
4.       But how much mental acuity does it take to steal?