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

The Nature and Structure of Criminal Law

A. The Capacity to Obey
1. Dudley v. Stephens: boat/ cannibalism case

Rule (CL): Necessity is NOT a defense to Homicide.
“Drawing Straws” defense: Black Letter Law: Cannot consent to murder.
MPC: Necessity can be defense if harm avoided is greater than taking of life (MPC views all lives weighted equally).

i) MPC § 3.02(1) page 898: Any Necessity can be considered a valid defense if the JURY thinks that it is Justifiable, “choice of evils” [also MPC § 2.09 Duress p.896] B. Controversial Crimes
1. Stark (Unprotected sex as assault): exposed someone to HIV. Arguing statute is unconstitutionally vague and evidence insufficient to prove intent to inflict harm.

Statute: (1) actually has HIV and (2) exposed somebody to HIV with the (3) intent to inflict bodily harm.
Rule: It is enough to say D did the act knowing that certain results would occur with substantial certainty.

2. Johnson (Prenatal delivery of drugs): pregnant woman consumes cocaine just before giving birth and transmits it to her baby

Statute: makes transmission of controlled substance to minor illegal
Rule: The legislature would have included babies in the statute if that’s what they intended, hence the absence implies they did not.
Argument: “delivery” requires some affirmative rather than passive act.

3. James/McCray (N.Y. 1979): prostitution case

Rule: First time prostitution offenders should not be convicted of a misdemeanor but first time johns should be.

C. Standard of Proof
1. Winship: 13 year old boy caught stealing from someone’s locker

Rule: P must prove each fact necessary to constitute the crime beyond a reasonable doubt (constitutional requirement)

i) Expanded # of crim convictions that could be pursued to US Supreme Court.

Possible defenses: (1) Consent: he gave it to me, (2) Debt: he owed the money to me, (3) Mistake: my locker? (4) Duress: someone made me do it, (5) finder, (6) Misidentification, (6) Vendetta.

2. Jackson v. Virginia (U.S. 1979, supp.5): established constitutionally required std of review for criminal convictions on appeal

On appeal, evidence and all reasonable inferences must be viewed in light most favorable to govt, not defendant
On appeal, all D’s evidence and argued inferences may be ignored unless they help govt
Govt really means jury. We give the jury the benefit of doubt and assume they found best facts and inference to support their verdict because (1) want to show respect to jury and (2) they see witnesses and evidence firsthand and app ct. doesn’t.
On appeal, must use insufficient evidence for proof beyond a reasonable doubt argument.

3. Apprendi v. New Jersey (U.S. 2000, supp.5): extension of In re Winship to sentencing.

Prosecution must prove beyond reasonable doubt any fact that increases the penalty beyond the statutory maximum (other than fact of prior conviction. Torres)

D. Due Process and Fair Warning
1. Fair warning is a constitutional req that criminal Ds be accorded “due process of law.” (5th Amend).
2. Jeffries, Jr. Legality, Vagueness and Construction of Penal Statutes (1985)

Principle of legality: prohibition on retroactive criminal lawmaking. “nulla poena sine lege:” no penalty w/o law.

(1) Fair notice: must have fair notice. No ex-post facto creation of law.
(2) Can’t be void for vagueness.
(3) Rule of Lenity/Strict Construction: criminal statutes are strictly construed against the government or in favor of the defendant. à not recognized by MPC
3. Keeler: man beats up pregnant wife, kills unborn fetus. Defense: no fair notice.

Statute: “unlawful killing of a human being, with malice aforethought”
Rule: Statute must specifically say that rule applies to unborn fetus.
Now: “murder is the unlawful killing of a human being, or a fetus, with malice aforethought.”
Davis (Cal 1994, supp.5)

s of the crime.
2. Rummel (1981): life imprisonment with parole for habitual offender; courts says that does not violate the 8th amendment and punishment is subjective.
3. Solem (Proportionality analysis – ancient law): LWOP for 7th nonviolent felony b/c of priors
A)courts think this is too disproportional and is prohibited by the 8th Amendment; “unusual” = hook into 8th
B)Holding: 8th Amendment = proportionality.
C)silently not considered good law anymore even though hasn’t been overruled
4. Harmelin: mandatory LWOP for first offense, possession of more than 650 grams of cocaine
A) more popular as good law; 8th does not guarantee proportionality; silently overruled Solem, cts remain divided on issue
5. Ewing: (in supp) stole 3 golf clubs ($1200), CA 3x law, 25yrs w/out parole.
A) Rejects Solem’s proportionality analysis: Majority says 8th does not include proportionality review but dissent says it should include “gross proportionality”
B) When you have a prior, there is no sentence that would be too severe, w/ the exception of life sentence.
C) Abandon proportionality analysis: 8th Amendment virtually puts no limit to sentencing. Need to find legislative method.
D. Variables in Determining sentencing
A) Judge
B) Lawyer
C) Later on: federal sentencing table
E. Sources of Crim Law

Common law: judge-made law, used today to interpret ambig stat terms
Criminal statutes: prevailing source, classifies crime as felony (death or imprisonment) or misdemeanor (fine, incarceration in local jail), divided into degrees)

MPC: NJ, NY, Penn, Oregon