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


Criminal Law Outline

Criminal Offense = Act [Actus Reus] + Intent [Mens Rea]
1.       Criminal vs. Civil
a.       Standard of Proof: Beyond Reasonable Doubt vs. Preponderance [p/r/d requires more intense belief] b.       Punishment jail (personal liberty or life)
c.        State controlled

2.       Purpose of Criminal Law
a.       Retribution (guilt): punishment
b.       Deterrence: prevent others from doing it by setting example
i.      General à deterring public in general by setting example
ii.      Specific à stop individual actor from doing it again
c.        Message Sending/Reinforcement of Value à letting people know – expressing society’s condemnation
d.       Rehabilitation: theory that prison will reform person; not really a motivation anymore
e.        Protection/Incapacitation: can’t hurt anyone else while in jail.
f.        Prevent vigilant justice

3.       HARM Principle, society has a legitimate claim to prohibit harmful or unreasonable behavior
a.       John Stuart Mill – Harm is the only standard. Harm to self is punishment enough, harm to others warrants and demands punishment. Include private harm, unreasonable risk of harm to others, and harm to important public institutions and practices.
i.      JSM sees two spheres of conduct
1.       Conduct that we may disapprove of, but within actor’s rights
2.       Conduct that may be punished by state under law due to harm caused by others.
b.       Feinberg – Yes, but three groups:
i.      Harm to others à preventing harm to others
ii.      Harm to self à paternalism, government is justified preventing harm to self
iii.      Harmless wrongdoing à distinguish between harmful and offensive behavior and then determine if offense is appropriate for criminal law
c.        Fletcher: Patterns of criminality
i.      Malum in seà bad in and of themselves – murder, rape, theft
ii.      Malum prohibitumà bad because they are prohibited. E.g Tax evasion
d.       Theory of punishment: make punishment fit the crime
e.        Other Aims of criminal law
i.      Hart, “The Aims of Criminal Law”
1.       Only distinction between society’s interest and individual interest is whether in fact, criminal penalties, with their accompanying moral stigma are imposed.
ii.      Goldstein’s “White Collar Crime and Civil Sanctions.”
1.       Line between civil law and criminal law in flux
iii.      Constitutional Safeguards
1.       Israel and LaFave’s, “Criminal Procedure in a Nutshell: Constitutional Limitations 4-7
a.       Two important doctrinal developments
i.      Bill of Rights had to apply to the States. (Due Process Clause Applies to States)
ii.      Adoption of expansive interpretations of individual guarantees

4.       Standard of Proof
a.       Proof beyond a reasonable doubt is required for every fact necessary to constitute a crime. Winship [13 year old accused of stealing $ from locker, found guilty by preponderance. SCOTUS overruled.
i.      Harlan: “Fundamental view of society that it is far worse to convict an innocent man than let a guilt man go free.”
ii.      Why do we require high burden?
1.       Life at stake
2.       Social stigma involved [ppl aren’t seen as bad for being found liable in civil case] 3.       Individual/Community confidence in system
b.       On Appellate Review: View evidence in light most favorable to the state (believe all evidence of P and not the D)
i.      On appeal, must look at evidence in the light most favorable to jury’s verdict [pro-prosecution]. Jackson v. Virginia
1.       Whether after looking at the evidence in the light most favorable to the prosecution, any rational trier of fact could have the essential elements of the crime beyond a reasonable doubt.
ii.      Appeal on trial error of sufficiency of evidence
iii.      Constitutional standard for appellate review: Could a rational juror find as was found below?
iv.      Reasons:
1.       Presumption of innocence has been rejected by the jury
2.       Show respect to the juries
v.      Burden that D has is large
vi.      Can’t submit new evidence on appeal stuck with record below.
c.        Sentencing
i.      Apprendià extends Winship to sentencing
1.       A fact that has raises the statutory maximum of offense, must be proved beyond a reasonable doubt.
2.       Plead guilty to weapons charge with max sentence of 10 years, but was sentenced by judge due to enhanced penalty which authorized enhanced term in judge found preponderance of evidence. SCOTUS overrules.
5.       Capacity to obey
a.       Necessity defense: Crime was necessary to prevent a great harm;
b.       In CL, Necessity is not a defense to murder. (Queen v. Dudley & Stephens)
i.      Ds stuck on lifeboat and killed cabin boy to save themselves. Death sentenced commuted though.
ii.      Consent is also not a defense to murder. (German Cannibal case – Meiwes)
c.        Under MPC, possible defenses duress MPC § 2.09
i.      MPC § 2.11 on Consent – consent is not a defense if seriously bodily harm is involved or person unable to give consent
ii.      MPC §3.02 Necessity: Allows defense of necessity if the harm sought to be avoided is greater than the crime. Choice of Evils
6.       Controversial Crimes
a.       Unprotected Sex as Assault
i.      Criminal intent is acting while knowledgeable of the consequences
ii.      State v. Stark à D convicted for knowingly exposing partners to HIV. D claimed unconstitutional vague. Criminal intent can be just knowledgeable about the consequences of person’s action. WA Appeals court upheld conviction. Pg. 11
iii.      Intent to inflict bodily harm = actor aware of the consequences and commits the act regardless.
b.       Delivery of Prenatal drugs
i.      A person may not be punished for a crime unless her acts clearly fall within the language of the statute
ii.      Johnson v. Stateà Mother charged with exposing drugs to minor by ingesting drugs before pregnancy and “delivering” them through umbilical cord. SCOFL overruled charges. Pg. 13 [Ban against expansive interpretation of crime].
iii.      Void for vagueness, no fair notice à due process violations
c.        First time prostitute not convicted of crime
i.      People v James and People v. McCray pg. 16
d.       Assisted suicide laws upheld – pg. 17

7.       Due Process and Fair Warning
a.       Due Process:
i.      Laws can be applied only prospectively; not retroactively [no ex post facto laws] ii.      Requires Fair Warning: content and scope of law should be clear and specific so as to provide notice to public
iii.      Keller v. Superior Courtà D prosecuted for murder for killing viable fetus SCOCA says fetus is not a “human being” in under CA murder statute. D did not have fair notice this was a crime. 
1.       There are no common law crimes in California
2.       Rule of lenity: when meaning of statute in doubt, favor the interpretation to D
3.       Court can expand the interpretation of the law and cannot expand law to apply retroactively, can only be applied prospectively [no ex post facto laws] 4.       Amended law
5.       People v. Davisà no proof of viability required for murder of fetus
6.       People v. Taylorà D convicted of 2d murder even though unaware woman he shot was pregnant.
7.       “Vagueness Doctrine” : Fair Warning
a.       Statutes have to be specific so people have fair warning
i.      Test: Whether the statue employs terms so that reasonable person can understand what it means
ii.      Discretion: cant be so vague as to test “virtually complete discretion” in law enforcement. E.g. Vagrancy statutes (Papachristou) and statute prohibiting “gang members” from loitering, defining loitering as “remaining in one place with no apparent purpose.” City of Chicago v. Morales 
iv.      Contrasting with Shaw v. Director of Public Prosecutions
1.       D published a Ladies Directory with info on prostitutes. Convicted on conspiracy to corrupt public morals. à judicially constructed crime.
a.       English ct à residual power, where no statute has intervened, to fill in gaps
b.       Still judicially created, and ex post factp application b/c D had not warning.
i.      Dissent argued this vestige power no longer exists. 
8.       Punishment
a.       Philosophy
i.      Retribution – Kant
ii.      Utilitarian deterrence
iii.      Two theories often coexist and punishment serves retributive and utilitarian purposes. 
b.       Types of punishment: prison, fines, community service, probation, registration, capital punishment, deportation (after your sentence), loss of rights (vote, buy a gun), social stigma, rehabilitation programs, restitution to victim
c.        Severity of Punishment/Sentencing
i.      US v. Bergmanà Rabbi convicted of defrauding Medicaid for $2.5MM. D asked for no jail time [community service], max jail time possible was several years, but J sentences to 4 months. D is not likely to repeat and not a violent offender, but need to punish him and create deterrence to others. 
1.       How to decide punishment?
a.       Retribution
b.       Deterrence [specific/general] c.        Incapacitation
d.       Recidivism
e.        Rehabilitation à jail does not rehabilitate.
d.       Sentencing Discretion
i.      Sentencing power is shared by legislature, police, prosecutor, judge, parole board à multiple discretion
ii.      Racial disparity in sentencing
iii.      Marvin Frankel; “Law without order”
1.       Wide disparity on punishment based on judge. Most important variable for sentencing was what judge you got.
2.       Since sentencing was all over the place based on judicial discretion and tailored to individual, Congress sought reform and passed
iv.      Sentencing Reform Act in 1984              
1.       [Sponsored by Kennedy and Thurmond] a.       Liberal argument à reduces disparity on race
b.       Conservative argument à law & order, eliminates leniency
2.       Law creates commission to formulate sentencing but eliminates
a.       Parole
b.       No rehabilitation in prison
c.        White collar crime become more strict
d.       Ppl with prior convictions to get stricter sentence. 
e.        Sentencing commission to be bipartisan. 
3.       Misretta (1989) àholds guidelines as valid and within the bounds if the constitution. 
4.       Blakely v. Washington (2004) à Interprets Apprendi to bar state judge from imposing “exceptionally higher” sentence than standard presumptive sentence based on factor not prove beyond reasonable doubt.
5.       Booker v. Washington(2005) à Court finds federal sentencing guidelines unconstitutional because sentences could be increased above mandatory guidelines by facts not found by jury or beyond reasonable doubt.
a.       Solution was to make guidelines advisory and not mandatory. Practical effect of Booker is to leave guidelines in place and require calculation when crime is committed but decision to impose is left to judge’s discretion. Guided Discretion à Guides must do calculation but not bound by them.
6.       Cunningham v. Californiaà SCOTUS strikes down CA sentencing law which sets sentence in the middle range but allows for judge to increase based on aggravating circumstances by a preponderance of evidence.
7.       Gall v. United States(2007) à SCOTUS says that an appellate court may not presume a sentence outside the guidelines presumptive range is unreasonable. 
v.      1987 Sentencing Commission published table
1.       Stephen Breyer (Kennedy) and Storm Thurmond’s Chief Counsel.
vi.      In California, everyone released from prison has parole time
e.        Proportionality
i.      8th Amendment prohibits cruel and unusual punishment
ii.      Courts have ruled that punishments may be violate prohibition if they are disproportionate to the severity of the crime
iii.      Rummelà D got life in prison w/ parole after 3rd non-violent felony. Court held that statutory sentence was not a violation of 8th amendment.
1.       Sentence upheld for possibility of parole

one under suspicion. Did not knowingly procure or receive, but probably aware of his control for a sufficient period to be able to terminate possession. Jury convicted of simple possession. Reversed because jury instruction on possession did not say that knowledge alone is not sufficient but that there is an additional requirement of evidence tying D to item in possession in order to prove control—maybe because of sympathy
1.       Can have joint possession of item. Knowledge & presence alone is not sufficient. 
f.        Status Crimes: (such crimes do not require an act; not allowed. Cannot punish a status, only an act). STATUS CRIMES ARE UNCONSTITUTIONAL (Robinson)
i.      Robinson v. CA (’62): Statute made addiction a criminal offense for which offender could be prosecuted any time before he reformed. SCOTUS; Addicted to narc offense
1.       Decided on 8th amdmt basis (cruel and unusual punishment) and not on due process
2.       Doesn’t want to say can’t regulate addicts, just that you can’t punish them. Due process overturn would make it hard to regulate.
3.       Why cruel and unusual? Because act can’t be criminalized unless voluntary/ can be controlled; here, more like illness
4.       Cruel and Unusual to even put someone with a common cold in jail for a day.
ii.      Lambert v. CA (‘57): Convicted forger failed to register per Los Angeles Muni code.
1.       Decided on due process grounds: violates due process b/c notice required where a penalty might be suffered for mere failure to act.
2.       adequate knowledge and subsequent failure to act necessary for conviction
3.       Dissent: criminal acts are founded on blameworthiness, ignorance of law is no excuse
4.       Failure to register is conduct that is wholly passive and therefore should be evaluated differently than commission of acts.
5.       Lambert sits as “derelict” on the waters
a.       Not many cases that follow and most people. Some people feel it only applies to muni codes.
b.       While ignorance of the law is not a defense, under the “Lambert standard for registration, the state is required to prove that a D knew or probably knew of his lifelong duty to register as a sex offender.”   9th Circuit, Bartlett v. Alameida
iii.      Public intoxication can be punished but not the addiction: Powell v. Texas (’68)
1.       It’s not punishing addiction, but manifestation of addiction
2.       Also, criminal law principles not determined completely/exactly by medical evidence—potential for harm if compulsion becomes a defense (e.g. kleptomania)
3.       While alcoholism may be uncontrollable, going out in public is not
iv.      Papachristou (1972): 
1.       Loitering struck down as unconstitutionally vague; allowed arrest of those suspected of being “rogues, vagabonds, etc.
2.       Gives police unfettered discretion which might allow them to harass those that seem undesirable, b/c unclear what conduct proscribed
v.      Morales (1999)
1.       Loitering defined as failure to disperse when police have reason to believe that at least one member of group is gang member
2.       Reaches large portion of innocent conduct
3.       Model penal code, p. 179, n.4, may not be operative after Morales
4.       Can’t criminalize status of hanging out on street, in groups or being gang member
vi.      Homelessness
1.       FL—Pottinger v. Miami—can’t criminalize life sustaining activities associated with homelessness—if you do, you’re criminalizing status
a.       by definition a public act
2.       Joyce v. County of SF takes Powell tack–unwilling to stop program, not criminalizing status, but rather act—otherwise saying that not a changeable condition
3.       Mens Rea
a.       Requires criminal intent b/c
i.      Helps define more precisely the kind of behavior sought to be deterred
ii.      Protects those who innocently cause harm
iii.      Retributive aspects only served if those culpable punished
b.       Under C/L: Two types—general and specific intent crimes
i.      General intent: mere intent to commit the act constituting the crime
ii.      Specific intent: requires an extra-special mental element/state—intent to get a specific result e.g.
1.       1st Degree Murder requires not just intent to kill, but malice aforethought
2.       Burglary requires not just intent to break and enter, but also intent to commit a felony
3.       Specific intent crimes: solicitation, attempt, conspiracy, 1st degree murder, assault, larceny and robbery, burglary, forgery, false pretenses, embezzlement.
iii.      Distinction still used in some states in making rulings on mistake of fact or intoxication defenses
iv.      Sentencing may be affected by sentencing e.g. Wisconsin v. Mitchell: intentionally selecting victim on basis of race
v.      Transferred intent for one crime to another generally disfavored, but applied in cases of felony murder and misdemeanor manslaughter
vi.      But criminal law transfers intent from one victim to another
State v. Peery: Former soldier’s indecent exposure in college campus window.   Ct. says evidence insufficient to show willful and intentional exposure, but also seems to suggest that Peery didn’t have extra special mental intent to be lewd. Unclear what that requires. But dissent focused on the fact that he should have known