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Criminal Law
University of California, Hastings School of Law
Aviram, Hadar

Hadar Aviram
Criminal Law
Spring 2012

·         Anatomy of a Criminal Offense – Actus Reus + Mens Rea (plus other circumstances)
·         Principle of Legality – requires that conduct be specifically prohibited by criminal laws before it may be punished
o   Prohibits laws that are so vague that a person does not have fair notice as to when his behavior constitutes a crime
o   Purpose and Rationale
§  Provides notice as to what conduct is lawful
§  Confines discretion of police in their enforcement of the laws
§  Prevents judges and juries from arbitrarily creating new crimes
§  Ensuring that criminal law only operates prospectively
·         Limits on Defining Crimes
o   Proportionality Doctrine – rough correspondence b/w severity of crime and severity of punishment (8th Amend.)
§  Rationale – escalation of behavior/curtailing reasonable behavior out of fear/negligible value of deterrence
§  Court examines three facts to decide whether sentence is grossly disproportionate
·         Gravity of offense compared to the severity of the penalty
·         Penalties imposed for other crimes in that jurisdiction (intra-jurisdictional analysis)
·         Penalties imposed in other jurisdictions for that same offense (inter-jurisdictional analysis)
o   Clarity – law must be clear and specific with which criminal prohibitions are defined (cannot be vague)
§  Nash – vagueness leaves open possibility that there can be multiple interpretations and unpredictable results based on jury (unexpected crimes – most law-abiding citizens cannot reliably avoid criminal punishment)
§  Gray – two problems with vagueness (which may invalidate a criminal law)
·         Insufficient notice that will enable ordinary people to understand what the law prohibits
·         May authorize or encourage arbitrary and discriminatory enforcement
§  Vagueness is often seen in “Quality of Life” issues (e.g. – vagrancy or loitering)


·         Act or Omission (and duty to act) + Other Circumstances + Result/Harm (sometimes)
o   Duty to Act – by statute/contract/special relationship/voluntary assumption of care/creation of peril
§  Must have been capable of doing the required act sufficient to fulfill duty
§  Special Relationship – parent-child/employer-employee/spouses/owner-customer/innkeeper-guest/captain-passenger (remember that moral duty is distinct from legal duty)
·         Good Samaritan laws in some jurisdictions may require individuals to prevent harm if they can do so w/ no risk
§  Contract – babysitter/caretaker/healthcare worker
§  D is ordinarily excused from duty unless she can fulfill it w/o harming herself
§  Positive Acts or Omissions Analysis
·         Can either stretch out the affirmative physical acts that led to death to include D’s initial assault (i.e. – there is a voluntary act that constitutes actus reus) OR D put victim in peril and therefore had a duty to help the victim. 
·         Most of the time the distinction is not important, but it may be in cases of euthanasia
o   Affirmative act of pulling the plug constitutes euthanasia.
o   Failure to continue to provide life support is passive euthanasia (omission) and not criminal conduct (unless there is a duty)
·         Also consider distinction b/w motive and intent
o   Result – requires causation by the act or conduct (look to statute to see if harm is an essential element)
§  Homicides require proof that D caused victim’s death.  Majority of criminal statutes do not require proof that D caused anything (usually just actus reus and mens rea).
·         Voluntary Act – movement of the human body that is willed or directed by the actor
o   Could be result of habit or some inadvertence as long as actor was capable of behaving differently
o   Voluntary act is not rendered involuntary simply b/c it may include an involuntary act or b/c it had unintended consequences.
§  Prosecution must prove a voluntary act beyond a reasonable doubt and that, w/o such proof, a defendant cannot be convicted of any crime, even a strict liability offense.
o   Not all behavior has to be voluntary before criminal responsibility attaches.  As long as there is at least one voluntary act in D’s course of conduct, he may be criminally liable.
§  If act is unforeseeable (e.g. – heart attack/stroke), then physical incapacity or lack of control is excused.
·         Example – D aware of illness/symptoms and fails to take medicine/see doctor.  Drives car and hits A.
o   Act – beginning to drive/Mens rea – criminal negligence or recklessness as to possibility that he would have seizure, lose control, and cause severe injury or death
·         Prosecution may want to argue that such sudden onset of illnesses should be analyzed as a circumstance element of actus reus rather than as a part of the conduct element.
§  Lack of knowledge (e.g. – w/r/t possession) is insufficient for physical possession to be voluntary act.
o   MPC – four situations in which many jurisdictions are willing to say that D did not act voluntarily
§  Reflect or Convulsion
§  Bodily movement during unconsciousness or sleep
§  Bodily movement under hypnotic suggestion
§  Bodily movement not otherwise the product of the effort or determination of the actor, either conscious or habitual.
o   Trick is to define when the period of the actus reus began and ended
·         Involuntary Act – individual has no conscious control
o   May include acts done while unconscious or sleepwalking or acts resulting from physical causes such as sudden/unexpected seizure or movements caused by being struck by another.
·         Law tries to shy away from status offenses (i.e. – not punishing for who they are but rather for what they do)
o   Robinson – gov’t can’t criminalize drug addiction but can criminalize possession or purchase of illegal drugs
§  Drug addicts not punished for wanting or getting drugs but for failing (omission) to get rid of them
§  Drug crimes – possession as proxy for purchase and possession of more than user quantity as proxy for sale
o   Powell – problem in this case is public intoxication (line b/w status and condition is not so clear)
§  Gov’t could criminally punish public drunkenness for alcoholic in a case in which D had a home
o   Kellogg – D argues that state could not punish him even though his conduct did violate relevant criminal law
§  Court made distinction b/w condition of being alcoholic and conduct that posed public safety hazard
§  Question is when alcoholic is homeless, does arresting for public drunkenness constitute a status offense?
·         Interpreting Conduct Terms:  Greater and Lesser Crimes
o   Unlike civil law, relevant line is drawn b/w more criminal liability and less, not b/w some criminal liability and none
§  Measure of punishment depends primarily on the seriousness of the crime D committed.
o   D may want relevant statute to be read broadly, particularly the lesser offense, so that it encompasses D’s conduct
o   Joseph G and Cleaves – raises question whether Ds should be punished for murder of for assisted suicide
§  Active/Passive distinction test – also may help determine more or less criminal liability
·         D merely furnishes (passive role) the means – guilty of aiding suicide
·         D actively participates in death of suicide victim – guilty of murder
·         Statutory Interpretation – determining legislative intent
o   Plain meaning – first look to language of statute and check to see if it is clear and unambiguous
o   If vague or ambiguous, try to find something authoritative in the legislative history (official record of proceedings)
o   Other methods beyond statutory language and legislative history
§  Structural evidence of intent – overall statutory framework w/in which particular statute in question resides

to search car for alcohol and failing to stop at red light b/c faulty brakes
o   Strict liability may also indicate that the activity prohibited is itself inherently dangerous (e.g. – drunk driving)
·         T.R.D. – statute for sex offenders was meant to regulate and not to punish
o   Court reasoned that it was regulatory/public welfare offense (no problem w/ construing as strict liability)
o   Public welfare offenses – not in the nature of positive aggressions or invasions but rather in the nature of neglect where law requires care or inaction where it imposes duty
o   Not always easy to differentiate regulatory intent from nonregulatory intent of statute
·         Defenses to Strict Liability Crimes
o   Include entrapment or mistake of law (D given specific legislative permission that was revoked or mistaken)
o   Involuntary Act Defense – Actus reus IS an element of strict liability crimes (thus, there must be voluntary conduct)
o   Also look to 1st amendment issues regarding strict liability crimes that may chill exercise of 1st amendment rights


·         Mistake doctrine governs the answer of what mental state D must have w/r/t factual circumstances regarding his conduct
o   Heart of mistake doctrine is a claim that D did not have the necessary mens rea for the crime b/c D made a mistake or was ignorant of a fact that she had to know to be guilty of the charged offense
§  Despite ignorance/mistake, did D know enough to be guilty of the crime? 
§  Mistake has to be w/r/t an element of the crime, but may also include any mistake that undermines D’s mens rea for the offense.
o   Not enough that D thought circumstances might have been or probably were.  Must have believed them to be true.
o   Law of criminal intent seems to define different standards based on the type of evidence used to satisfy them
§  When D’s conduct and circumstances used to prove intent (usually the case), the governing standards are more favorable to D (presumption of innocence/beyond a reasonable doubt).
§  When evidence of D’s intent or lack thereof is based on D’s testimony, as in mistake cases, governing standards are tilted more toward prosecution (makes it harder for D to escape liability).
o   Deliberate ignorance doctrine – high suspicion of truth or fact combined w/ efforts to avoid knowing it is sufficient to prove the crime.
·         If unsure whether to use element analysis, look to language then legislative history then common sense/public policy
·         General Intent – valid mistake of fact defense if D had honest and reasonable belief that negates his culpability
o   Must persuade judge and jury that most people would have made the same mistake in his circumstances
·         Specific Intent – mistake of fact defense available (not guaranteed) if D’s error was merely honest
·         Mistake of Fact analysis
o   Was the mistake honest?
§  No – no defense
§  Yes – Was it reasonable?
·         No – Does it negate particular intent?
o   Yes – might excuse specific intent (possible defense)
o   No – no defense
·         Yes – excuses both general and specific intent