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Criminal Law
University of California, Hastings School of Law
Little, Rory K.

Rory Little_Criminal Law_Spring 2014

Class sections, Chapter, section, subsection, notes, MPC, CL, CB cases, notes cases

Goals, Justifications and General Issues (1-26, 29-48, 56-59, 61-70)

Test taking tips

· Emphasis on facts (Little thinks this is what makes the law)

· Argue for both sides and indicate the problems on both sides

o Types of facts:

o Facts that support the legal argument (rule application).

o Facts that do not support the legal argument – talk about them.

o Facts that cut both ways. Fruitful facts. Help you when there is a tie break. Facts that straddle the fence.

o Facts that are not really there at all. Identify the facts needed to answer.

§ Ex: Bob picks up gun and shot Shirley. When arguing about mens rea – a fact missing is whether a bullet was in the gun. So discuss what it could mean either way.

· Mention JX if applicable (CA/ NY/ PA/ MPC)


Sources of law

1. Common law – collection of cases; changes over time (PA)

2. Model Penal Code (MPC) – not statutes; advice (NY)

3. Statutes – legislature; trumps common law (CA)

Differences between Criminal and Civil law

· Standard of proof: BRD as opposed to Preponderance of Evidence; Punishment – jail/ prison; State controls vs. private parties bc of more sever penalty; assumes state is good at bringing cases that should be brought, better to leave them in control than private citizens

Goals of Crim Law

· Guilt (retribution): punishment; deterrence: prevent others from doing it by setting example – general deterrence: stop general public from doing it; specific deterrence: stop indiv. (accused) from doing it again; message sending: letting ppl know – expressing societu’s condemnation – blame; victim vindication; rehabilitation: not really motivation anymore; protection/ incapacitation: cant hurt anyone else while in jail, likely to commit lots of crimes (recidivism); incapacitation reduces crime rate??

Chapter 1: nature and structure of criminal law

The Core and Periphery of Criminal Law

· John Stuart Mill, On Liberty (1859; 2): “Not our part to inflict any suffering on him, except what may incidentally follow from our using the same liberty in the regulation of our own affairs, which we allow to him in his”

· Joel Feinberg, Harm to Others (1984; 3): “Harm principle: Legitimate for state to prohibit conduct that causes serious private harm when reasonably necessary to prevent (risk of) harm to parties other than person interfered with”

The Queen v. Dudley & Stephens (1884) p 6 – the cannibalism case. Storm at sea and men confined to lifeboat w/o food or water. Boy/Richard Parker is “likely to die’” so Dudley kills him to save them (Brooker dissents/PLEA BARGAIN?!). Dudley and Stevens charged with murder. Is RP’s murder a felony or a “crime of necessity”? Crt wants help with this legal question. → Necessity is not a defense to murder, esp “for the men of Engl.” You are not avoiding a greater degree of evil, murder is the worst already. A common situation, you don’t want this becoming precedent. The judge created a standard out of moral preference, even if men can’t follow it. Note 4 on MPC: The opposite of Dudley ruling. You should not make rules that people can’t achieve. MPC for advice; it has no real effect. Only NY fully adopted it. CA has it’s own penal code, statutory code. Usually a jurisdiction follows Statutory, MPC or Common Law. After 1962, when a guy tried to kill Reagan and was acquitted for reasons of insanity, there was backlash on this. Now, Defenses of necessity or insanity are strongly disfavored by juries. Whether killing under the circumstances set forth be murder. It is admitted that the deliberate killing of this unoffending and unresisting boy was clearly murder, unless the killing can be justified by some well recognized excuse admitted by the law….But a man has no right to declare temptation to be an excuse, though he himself have yielded to it, nor allow compassion for the criminal

· Lord Coleridge: law as highest standard, even if could not reach standard ourselves

o MPC: rejects Coleridge; law ineffective if judges not prepared to affirm (9)

Controversial Crimes:

Unprotected Sex as Assault

· CA/CL: need specific intent to transmit HIV (13)

State v. Stark (1992) p 11 – He kept giving people HIV after he knew he was positive. Is that a crime? RCW 9A.36.021(1)(e) statute in the footnote. Charged with Assault: expose or transmit his HIV with INTENT to inflict bodily harm/injury (example of act: exposing and mens rea: intent to inflict harm) Defense – saying it should be dismissed saying statute was unconstitutionally vague and the evidence was not sufficient 1) The doctor directly told you, restate standard of vagueness – person of reasonable intelligence understand what they should do/what they should not do 2) the evidence is sufficient, a) neighbor affidavit of intent, b) victim statement, c) doctor affidavit, went from a civil injunction to a criminal prosecution – his statement is damning because not only does it show he intended to expose, but he had the knowledge that the disease was deadly Hard to meet that standard – connecting the dots (implied) Juries can make reasonable inferences – there is no case where the evidence is so objectively clear that there is no room for argument, making inferences constantly – so juries are encouraged to make inferences. Remember there is no actual evidence that anyone actually contracted the disease from him – and there doesn’t need to be any. Sufficient evidence BRD of intent? (A Winship/Jackson v. Virgina issue) → Yes. This statute has Mens Rea (“with intent to inflict harm”) and Acteus Reas (“exposes or transmits”) = guilty of 2nd deg assault. Anyone could understand this statute (not vague); Almost never a case that is completely clear – would’ve settled! Connect the dots for intent with witness testimony about anal sex and neighbor testimony “he didn’t care.” →Stark lost.

Email: HIV is Not a Crime (CA) Willful exposure of any infectious or communicable disease is a misdemeanor; Felony for being knowledgeable of being HIV-positive and having unprotected anal/vaginal sex and non-disclosure and intent to infect; 3-yr prison enhancement for any of the following if knowledgeable of being HIV-positive; Prison inmate convicted of anal or oral sex; Rape (incl. spousal rape); Anal or oral sex with minor; Felony for being knowledgeable of being HIV-positive and soliciting or engaging in prostitution

State v. Gamberella and People v. Jensen – most challenges to statutes for vagueness like in Stark have failed because relevant statutes establish knowledge in light of such actions satisfied the conditions for liability, that neither the criteria for state of mind nor for the criminal act were vague. (13)

Prenatal Delivery of Drugs

Johnson v. State (1991) – Florida case. Mother used cocaine, her child was born with it in their system. Funny fact whether that happened twice, or to two different kids. The court says that she violated the statute Issue: Charged with delivering a controlled illegal substance to a minor. Convictions affirmed by lower court, reversed. “Legislature never intended statute to cover this context” (13). Analysis: She knew: birth was imminent, a baby is a person, and cocaine to a baby was illegal. Lower court certified to higher court. Supreme Court says not guilty. Legislature didn’t include these moms in statute and could have (a similar statute was NOT passed by legis.) The act needs to fall clearly within the statute→ Reversed. This would undermine social policy; want to keep families together.

People v. Bremer – cited within the case in order to support charges being dismissed.

*Whitner v. State (1997) – crack baby case. Plead guilty to criminal child neglect and was sentenced to eight years. Supreme Court later held criminal child neglect statute covered viable fetuses. (15)


People v. James and People v. McCray (1979-80) – Rejected Prosecution efforts to reinstate prostitution charges against first-time offenders – Victim-less crime. Public Interest not served by intransigence on issue whose irrelevance to real problem of violent crime is recognized universally. (16)

Assisted Suicide

Vacco v. Quill and Washington v. Glucksberg (1997) p 16-17– Enacted statutes with broad criminal prohibitions on such assistance by doctors.

*Dr. Jack Kevorkian note p 17 – controversial suicide doctor – made career out of supplying means for terminally ill patients to end lives. Argued they had a right to choose to die, as well as live. Served eight years in prison for second-degree murder. General – virtually all states have rejected necessity or lesser evils arguments as underlying policy choice.

The Function of Criminal Law

Henry Hart – The Aims of the Criminal Law (1958; 19): Punishment as “expression of community’s hatred, fear, or contempt for the convict which alone characterizes physical hardship as punishment” (20)

Abraham S. Goldstein – White Collar Crime and Civil Sanctions (1992) p 21 – “The two theories of criminal liability – one emphasizing social control and the other stressing personal culpability – have long been competing for primacy, most conspicuously in the law of traditional crimes”. Two central concepts/theories of criminal law: personal culpability: “blameworthiness” à criminal law is strict procedure, technique to be used sparingly; vs. social control: subjective procedures to achieve social objectives

Sarbanes-Oxley Act of 2002 p22 – corporate scandals

Jerold Israel & Wayne LaFave – Criminal Procedure in a Nutshell: Constitutional Limitations 4-7(2006) p 23

Due Process: No state can deny this, and it’s vague. Laws can be applied only prospectively; not retroactively; Requires Fair Warning and Specificity: content and scope of law should be clear and specific so D/the public has advance notice what the charge/crime is. (have to understand and anticipate consequence); Judges can’t create crimes! “courts are not politically competent to define crime.” Shaw (prostitutes catalogue); Little weight on Victim Impact Statements – shouldn’t punishments be uniform? (Controversial)

Standard of Review (Proof)

· Beyond a reasonable doubt

o Rule of trial: government has burden of proof; defendant gets benefit of doubt

§ Winship (SCOTUS 1970): due process protects accused against conviction except upon proof beyond a reasonable doubt of every fact necessary to constitute crime – constitutional requirement for criminal convictions

· Rationale: (1) precedent; (2) history; (3) widespread – liberty at stake; stigma à affects career, social life; community confidence

· Concurrence (Harlan): value determination that worse to convict innocent man than let guilty man go free

· Dissent (Black): not for courts to decide; Congress, state power

o Rule of appeal: defendant has burden of proof; government gets benefit of doubt

§ Jackson v. Virginia (SCOTUS 1979; p. 30): standard of review in evaluating sufficiency of evidence in c

re going to prove, so D’s can fairly weigh their options of evidence; (Treat punishment like a fact – have to tell D in advance these will be included, because it might be best for him to plea/ fairly evaluate his options. (pre-trial notice))

*Allyene 2013 case –Footnote, a fact that establishes/extends a mandatory minimum statute must also be treated as Winship element and must give pretrial notice (submitted to the jury); “mandatory minimum statutes” – ex: Brandishing a firearm, then get 2 years min.

Claims and rights of Victims: Victim Impact Statements

Payne v. Tennessee (1991) p32 – Victim impact statements describe the physical, economic, social, and emotional consequences of the offender’s acts. Justice Stevens (dissent) has criticized their use in sentencing as “having strong political appeal but no proper place in a reasoned judicial opinion” (32). Held Eighth Amendment did not impose a per se bar of such evidence (like victim statements). Real Issue: permissibility of using evidence related not to the D’s overall blameworthiness, but merely the HARM caused by the crime – only one element of determining blameworthiness. Payne says ok, Booth says NO WAY.

Booth v. Maryland (1987) p32 – Court held that Eight Amendment prohibited a capital sentencing jury from considering victim impact evidence because it created a risk that the death penalty would be imposed in an arbitrary and capricious manner.

“Vagueness” Doctrine: Due Process and Fair Warning (33)

· Fair warning – statutory content and scope be clear and specific (i.e. not vague) + notice; part of constitutional requirement that criminal defendants be accorded “due process of law”

Keeler v. Superior Court (1970) p34 – Punched cheating pregnant ex-wife in stomach, killed fetus. Was fetus a human being under the murder statute? Held do not want to expand statutory meaning because under principle of due process, notice of what does or does not constitute criminal behavior, there were no decisions in CA that would have given P notice that killing unborn but viable fetus was prohibited by statute.

· by another man, blocked her while driving, assisted her out of the car, saw her stomach, angry and says “he’s going to stomp it out of her.” If she had given birth 75-96% chance survived; “viable.”

o “Murder is… killing of a human being… with malice…”

o How severely should he be punished? Was this a human being? Is the definition vague?

o Crt focuses on legislative intent; courts can’t make law, they apply it. And, when they have to interpret it, they do it by what the legislature at that time enacting it meant. (the last legislative word)

o Fetus wasn’t born alive, according to this law, or the legis should’ve changed it (and they did after this!)

o He wins. It’s not murder as a matter of law

· Courts cannot create crime, enlarge statute

o Keeler (34): fair warning: new offense must be sufficiently explicit; court expanding law would not be foreseeable à not fair warning if created new offense

New Jersey v. Palendrano (1972) p 38– “Scold”, vague definition in NJ statute and therefore concluded that the statute was void for “vagueness.”

Kolender v. Lawson (1983) p 38 – A statute is unconstitutionally vague as a criminal statute because “vested virtually complete discretion in the hands of the police to determine if the suspect satisfied the statute and must be permitted to go on his way in the absence of probable cause to arrest – and the statute failed constitutional standards for definiteness and clarity.

International Harvester Co. v. Kentucky (1914) p 40 – Court concluded that a statute that prohibited lowering or raising prices above the product’s “real value” was unconstitutionally vague.

Nash v. United States (1913) p 39 – Between two extremes of the obviously illegal and plainly lawful there is a gradual approach, and that the complexity of life makes it impossible to draw a line in advance without an artificial simplification that would be unjust

Papachristou v. Jacksonville (1972) – SCOTUS case – Cannot be so vague as to vest “virtually complete discretion” in law enforcement. E.g. Vagrant statutes

City of Chicago v. Morales (1999) – statute prohibiting “gang members” from loitering, defining loitering as “remaining in one place with no apparent purpose was too vague – law can’t be so vague that someone of ordinary intelligence cannot figure out what is innocent activity and what is illegal.