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

Crim Law, Professor Lee, Fall 2010
I.        Desert
A.    Everyone should be punished exactly as much as they deserve to be punished (Kant). Under a retributive theory of penal law, a convicted defendant is punished simply because he deserves it. There is no exterior motive such as deterring others from crime or protecting society – here the goal is to make the defendant suffer in order to pay for his crime. Retributive theory assigns punishment on a proportional basis so that crimes that cause greater harm or are committed with a higher degree of culpability (e.g., intentional versus negligent) receive more severe punishment than lesser criminal activity.
B.    No one should be punished MORE than they deserve, but it’s okay to punish people LESS than they deserve if there are good utilitarian reasons to punish them less (“hybrid”)
II.       Utilitarian reasons
A.    Deterence: punishment is justifiable if, but only if, it is expected to result in a reduction of crime. Punishment must be proportional to the crime, i.e., that punishment be inflicted in the amount required (but no more than is required) to satisfy utilitarian crime prevention goals.
1.    We should scare the general public into obeying the law by punishing wrongdoers (“general deterrence”). Punishment is imposed in order to dissuade the community at large to forego criminal conduct in the future.
2.    We should scare the wrongdoer into obeying the law by punishing him (“specific deterrence”). Punishment is meant to deter future misconduct by an individual defendant by both preventing him from committing crimes against society during the period of his incarceration (incapacitation)
3.    We should incapacitate (disable) wrongdoers from doing future harms by segregating them from society (“incapacitation”).
III.     Mixed reasons
A.    We should punish wrongdoers for the purpose of making them better (e.g., “spare the rod, spoil the child”) (“rehabilitation”). Examples of rehabilitative “punishment” include: psychiatric care, therapy for drug addiction, or academic or vocational training.
B.    We should punish wrongdoers to establish what kinds of acts are really wrong (e.g., date rape) (aka “denunciation” theory)
1.    Punishment is justified as a means of expressing society’s condemnation of a crime – has both utilitarian and retributive components. Under a utilitarian theory, denunciation is desirable because it educates individuals that the community considers specific conduct improper, channels community anger away from personal vengeance, and serves to maintain social cohesion.Under a retributive theory, denunciation serves to punish the defendant by stigmatizing him.
I.        A crime includes two components:
1.    Mens rea – the state of mind involved in committing the crime
2.    Actus reus – the physical act and its results
II.       A result crime is based on an outcome, e.g. murder (punishing an unwanted outcome, social harm)
III.     A conduct crime is based on prohibited conduct, e.g. DUI (punishing a specific dangerous behavior, potential social harm)
IV.     A criminal act must be voluntary, but a voluntary act leading to loss of control may still result in criminal culpability (e.g., inebriation).6, 7    MPC 2.01 (1)(2)
V.      Actus Reas and Mens Rea = building blocks of offenses, and paradigm of criminal law. 
A.    Indictable offenses: (not generalizable)
1.    Homicide
2.    Rape
3.    Burglary
4.    Bribery
B.    Liability extenders
1.    Accomplice liability – aiding and abetting – complicity
2.    Attempt – extends beyond the building block paradigm
3.    Solicitation
4.    Conspiracy
5.    Omissions
6.    Strict liability offense (such as speed limit infractions)
C.   Liability Limiters (defenses)
I.        Conduct element – the action that must be performed
II.       Result element – the result that must occur
III.     Attendant circumstances – what other features must be present
Punish only blameworthy people
A.    Reasons for imprisoning someone:
1.    Deterrence (general and specific);
2.    Incapacitation (when someone is dangerous then we “incapacitate them” by segregating them);
3.    Rehabilitation (controversial for the liberal/conservative dichotomy reasons.)
B.    Kant-everyone should be punished to the exact degree they deserve, no one should be punished more than they deserve-departing from Kant – it is permissible to punish less than deserving if serves some utility. PLEABARGAIN
C.   Prior behavior dominates charging and sentencing in the real world
II.      Criminal law sorts blameworthy from non-blameworthy by asking two questions
D.   Science on recidivism is very sketchy! It’s actually very unclear if someone will commit a crime again
1.    Did this person do something socially undesirable? (“actus reus”) (usually some harmful or risky conduct)
2.    Did this person have a culpable state of mind when he or she did it? (“mens rea”) (mental state necessary to commit offense.
E.    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)
F.    Ex.:  Common law murder = killing of another human being with malice aforethought.
1.         Mens rea = malice aforethough
2.         Actus Reas =killing of another human being
G.       Ex.: Common law larceny = taking and carrying away of personal property of another with intent to permanently deprive person of ownership
1.     Mens rea = intent to permanently deprive
2.     Actus reus = taking and carrying away of personal property of another
a)    Actus reus requires either a relevant voluntary act or omission to act where there is a legal duty to act
(1)     Criminal law does not punish for evil thoughts alone
(2)     Act must be voluntary because person not blameworthy if all relevant acts involuntary
(a)      Definition of “voluntary” is controversial; much disagreement from jurisdiction to jurisdiction
(b)     Oliver Wendell Holmes:  voluntary act is a “willed muscle contraction”
(c)     voluntary involuntary liability – Decina found guilty of reckless driving where a human is killed when he had a seizure after a history of them and his car hopped the curb and killed four girls. If you can make a reasonable assumption that something could happen “what’s the worse that could happen” then criminal liability assumed.
(d)     Model Penal Code:  refuses to define voluntary; instead, lists acts that are NOT to be considered voluntary:
i)      reflex or convulsion
ii)     movement during unconsciousness or sleep
iii)    conduct during hypnosis or post-hypnotic suggestion
iv)   residual clause (“conscious” or “habitual” acts ARE voluntary)
b)    People v. Newton:  Severely handicapped man on flight from Bahamas to Luxembourg becomes (possibly) unruly. He is in possession of a handgun and ammunition. The pilot makes an unscheduled stop in NYC at JFK. Port Authority police board the plane and remove the firearm from the petitioner, and take him into custody. He is charged with felony class D possession of firearm & ammunition, NY Penal Law. Def did not commit a voluntary act within the jurisdiction and had no reasonable expectation of being in the jurisdiction. [Lee wonders is act of omission committed by def not divesting the handgun when entering into US airspace.] Act or failure to act must occur within jurisdiction. 
IV.      A person can be punished for a failure to act only if he or she had a legal duty to act 
F.    Duty to act can be established only by the following circumstances:
1.    statute imposes duty (requirement to register for draft, to file income tax return, etc…law stands in statue itself)
2.    status relationship imposes duty
3.    contract creates duty
4.    duty was voluntarily assumed, then abandoned, thereby leaving victim in a worse position
5.    status as landowner imposes duty
6.    tort duty to control certain third persons (e.g., children, employees)
7.    def created peril in first place
a)    Failure to file income tax return is criminal only if one has a statutory duty to file
b)    Jones v. U.S.:  Two children (of Shirley Green) were found malnourished and sick at Jones’ residence. One died at hospital. Facts of case are disputed – especially in who’s care the children were (Green’s or Jones’). Original court found Jones guilty of involuntary manslaughter in failure to provide food & necessities.   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 Anthony Lee. Conviction for involuntary manslaughter on omission theory must be reversed where jury was not instructed on necessity of finding legal duty to act
V.      Criminal law imposes no general duty to rescue
F.    Option:  Criminal law could impose duty to rescue where one can do so without significant risk to one’s self
G.   Option:  Criminal law could impose duty to inform authorities when one is reasonably certain that another is in serious peril
1.    Omission to act cases are usually only ones where duty to act comes up…
2.    Omission is not an indictable offense. You can charge them with something else (that they did do) on an omission theory. 
Possession as a special instance of the act requirement (contraband almost always drugs, firearms or stolen goods)
A.     In order to be g

uivalent of Model Penal Code “purposely” and “knowingly”.
V.      MPC § 2.02 – Majority Rule
A.    Types of culpability recognized by the MPC
1.    Purpose = “conscious object” – you have to want it done, or to happen. See State v. Peery.
2.    Knowledge = “awareness” or “practical certainty” – you could be reasonably certain of the outcome of your action. (collateral damages).
3.    Recklessness = “Conscious disregard of substantial and unjustifiable risk” – firing a gun in the air as part of a celebration. This is a subjective standard of liability (looking at it from the actors viewpoint).
4.    Negligence = defendant should have recognized substantial and unjustifiable risk – you may not be aware of risk but you should have made yourself aware of it. This is an objective standard of liability. (looking at it from the societal standpoint – what would another person have done/known).
VI.     Distinguishing purpose from knowledge:  purpose connotes desire to have harm occur; knowledge connotes callousness to whether harm occurs
A.    Example:  Selling a weapon to someone who obviously intends to kill
1.    Distinguishing knowledge from recklessness:  knowledge requires awareness of extremely high likelihood that harm will occur; recklessness requires awareness of moderately high likelihood that it will occur — difference only in degree
2.    Distinguishing recklessness from negligence:  recklessness requires subjective awareness of the likelihood of harm; negligence is satisfied if we can say that someone in that position SHOULD have been aware of the likelihood of harm — difference in kind. recklessness and negligence require proof that the actor created a substantial and unjustifiable risk that constitutes a “gross deviation” from the standard that an ordinary person would have exercised under the circumstances. Differ in that recklessness requires evidence that actor was aware of and consciously disregarded the risk, criminal negligence exists even when the actor is unaware of the risk, if they should have been aware of it.
B.    The hierarchy of culpability terms under the MPC
1.    “Elemental analysis” versus “offense analysis”
2.    When no culpability term appears in an offense, use recklessness; if only one term appears, use that term for all elements within the offense (Subsections (3) and (4))
C.   United States v. Villegas:  what is “knowledge”?
1.    Held:  There was insufficient evidence to support the conviction for “knowingly” placing others in imminent danger of death or serious bodily injury
2.    Rationale:  The evidence of knowledge was insufficient whether knowledge is defined as a “substantial certainty” or merely as a “high probability,” though the court believes the latter is the better choice
D.   MPC § 2.02(7):  “requirement of knowledge satisfied by knowledge of high probability”
1.    MPC Comment indicates that this provision is addressed to “wilful blindness” situation
E.    Specific intent vs. general intent (you will not be tested on this)
1.    No authoritative definitions exist
a)    Specific = extra-special mental state when committing crime. General = require proof of a particular state of mind, i.e. common law larceny – specific intent – actor must intentionally take and carry away property of another with the extra-special intent to permanently deprive the owner of that property.
b)    Proof of intent can be especially important in white-collar crimes such as the Arthur Andersen (Enron) case.
c)    Transferred intent – law usually does not impose liability for “transferred intent.” Does apply to felony murder and manslaughter, or from one “victim” to the next. i.e. meant to kill “a” but missed and killed “b” instead.
d)    Specific intent may have impact at sentencing. 
2.    Dressler:  three categories of “specific intent” crimes