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

Crime causes social harm and criminals are punished
Types of behavior we punish:
Cause harm
Cause unacceptable risk of harm
Action prepatory to culpable infliction harm
Utilitarianism – punish to get a benefit and create greater utility for society, punishment is justifiable if it reduces crime. Threat of punishment reduces crime. Avoid punishment because pain (of punishment) outweighs pleasure (criminal rewards).
Punishment can be used to prevent future harm vs. Retributivsm à punishment is unjustified in absence of social injury
Specific deterrence: teach that criminal a lesson
General deterrence: set example for the community, reduces future crime, teaches us what is permissible
Deterence by:
Incapacitation: Prevent criminal from committing future crimes, segregate them from society, they need to be neutralized and kept safe
Rehabilitation: Make people more law abiding, program to be better
Teaching Norms to Society: Let people know that behavior is unjust and unacceptable
Retribution – punish because it is just and deserved. Punish blameworthy people. Wrongdoer freely chooses to violate society’s rules and they should be punished whether or not it reduces crime.
When and to what degree is punishment permissible?
Kant: We punish those who have committed crimes. Guilt is a precondition and a sufficient justification. People need to be responsible for what they do.
Pitfall: If we punish all guilty people justice system would collapse, no$
Punish those who voluntarily choose to commit a socially harmful act. Once there is a social injury debt is owed and it is right for society to take something from actor by means of punishment.
When and to what degree is punishment required?
Kant: Punishment is required when someone commits a crime
Different Retributive theories:
Jus talionis = eye for an eye
Breach of hypothetical social contract = punishment as a means of securing moral imbalance in society
Quasi K/Unjust enrichment = punishment requires payment of debt person owes to society
Unfair competitive advantage = Criminal has unfair

·         Social Contract – in order to function as a society we have to preserve respects for each others economic interest. All of society is engaged in a competition for wealth and if we allow certain members to operate outside general structure, it undercuts rest of society. If allow worse off to steal from better off, we have abandoned social contract we have entered. For capitalistic society to function, we need to protect wealth and property interests of society.
·         If someone has been unjustly enriched, society must provide remedy.
·         Some may claim should fall under civil law, but it would not be effective. Criminal destitute, and a civil judgment would be useless.
·         Against punishment – say serves no social purpose. Criminals would not be deterred by punishment. You cant be deterred from doing something you have no other means of doing something.

Act Requirement – Actus Rea
A goal of criminal law is to punish only blameworthy people. Must have actus rea (voluntary act that causes social harm) and mens rea (mental culpability).
Actus rea requires voluntary act or omission to act where there is a duty to act
Voluntary Acts
Crimes require voluntary acts
Can’t punish evil thoughts alone.
Oliver Wendell Holmes defintion: willed muscle contraction
MPC definition of what is NOT voluntary:
Reflex or convulsion
Movement during unconsciousness or sleep
Conduct during hypnosis or post-hynotic suggestion
Habitual acts are voluntary (lighting a cigarette, changing lanes)
People v. Decina – car crash while having epileptic seizures, guilty because his voluntary act of misleading doctors to get drivers license, get into traffic.

A person may be convicted for failure to act if there is a duty to act. They are criminally liable not for the omission but for the substantive crime.
Duty can be imposed by:
Statute – pay income taxes, stop car when you hit someone,
Status relationship – parents to children, married couples
Contract – doctor, babysitter, nurse, taking care of disabled parent
Voluntary assumption, then abandoned, and the victim is worse off
Duty to control third persons – children, employee
Created risk
Example: Failure to file income tax is criminal if there is a duty to file
Jones v. US: Woman allowed baby to die of malnutrition/feces, but not convicted of failure to act, because there was no legal duty for her to take care of baby
Criminal Law imposes no duty to rescue/no duty to act to prevent harm to another
Policy – criminal law could impose duty where there is no risk to oneself, or impose duty to report to authorities where there is knowledge that someone is in peril
Policy: would promote social cohesion, planned criminal activity might desist if they knew others would intervene
Massachusetts: parents can be convicted of not taking children to doctor even when based on religious principles
Police officers do not have duty to warn/protect victims (Rodney King police officers who watched were not indicted)
To be guilty of possession of contraband D needs to:
Deliberately obtained contraband or
Knowingly received contraband
Failed to terminate control of contraband after being aware and having sufficient time
Possession – control over item
Appreciable ability to control
Knowledge alone does not constitute possession
Inchoate offense – later commit socially injuring crime (sell, use tool to commit burglary)
Must have awareness of possession – if someone puts drugs in your pocket, not possession, unless you have reason to know there are drugs in your pocket
Control not need be “immediate and exclusive”
There may be joint control à joint possession
Actual v. Constructive Possession:
Actual possession: physically touching contraband
Constructive possession: Control over it even though not on person, knowledge of existence and exercise of dominion and control
Jewelry may be in safe deposit box and you have the key.
Wheeler v. US: Heroin under pillow constituted sufficient control.
Proximity + reason to be involved in criminal activity à is sufficient for conviction of possession
People v. Ireland: Man’s wife had a lot of marijuana. Trial remanded because jury told that knowledge of contraband, without control, was sufficient for possession.

Status Crimes
Cannot punish against status, but you can punish for conduct
Robinson v. California: Punishing narcotics addict for their status of an addict (who has not used narcotics or engaged in unusual behavior) is prohibition against cruel and unusual punishment. Unconstitutional.
The illness of drug addiction was the crime (involuntary status)
Indecent to punish people because they are sick
Vagrancy, loitering laws give police tool to round up troublemakers à unconstitutional, give police too much power
Powell v. Texas: alcoholic may be punished for public drunkenness. The distinction from Robinson is that the crime is not for being an alcoholic, the crime is the voluntary act of being in public intoxicated.
Why shouldn’t we punish status? (pedophilia gene) Policy: we believe people experience the world with free will
Homelessness – assume homeless conduct is inseparable from involuntary homeless status. Is government justified in punishing homeless conduct when there are no accommodations?
Homelessness not a status because it can be resolved by social intervention.
Race, sex, national origin, illness can’t change

Mental State – Mens Rea
Mens rea – Mental culpability, fault
Generally there is a temporal concurrent requirement of mens rea and actus rea
Eg: if you plan to kill someone then you accidentally kill them it is not murder
Purpose – conscious object to do harm
Knowledge – awareness/practical certainty of harm
Recklessness – conscious disregard of substantial and unjustifiabl

people in one direction and then penalize them.
However, reliance on attorney’s advice is not MoL defense
Mens rea (different law mistake) Mistake of Law
D lacks mens rea that is necessary to get conviction of offense
Rule: Different law mistake whether reasonable or unrsbl is a defense for specific intent crime.
General intent of offense à no defense, doesn’t matter if reasonable
Specific intent of offense à claimed mistake must negate mens rea
Ex: D sells mower to N for $20, N doesn’t pay, D goes and takes mower. Title has passed technically, and D thought failure to pay meant it was still hers. àno liability, specific intent to steal is negated by mistake
Never crime to take what you honestly believe is yours à negates the specific intent to steal
Mistake of law defense recognized for estoppel situations
Strict Liability:
Rule: No mistake of law defense. (No mens rea to negate)
Sex Offender/Draft Registration
Mens rea is not part of statute about knowing existence of requirement
Actual v. Constructive Notice:
Actual Notice: Person actually receives notice
Constructive Notice: Law is in the books
In crim law – constructive notice is sufficient for due process
People v. Wendt
Willfully didn’t file income taxes – his reliance on ct opinions was unreasonable.
Lambert v. CA: Convicted people need to register with CA. D living in LA and had no actual knowledge of duty to register. Passive/nonfeasance behavior. MoL estoppel defense available. Purpose of law was to keep on criminals.
Reyes: Same registration law, but he left country/misfeasance, purpose: prevent importation of drugs/compelling gov interest. MoL defense not available.
People v. Barker
Watergate scandal; people thought they were authorized to break in because of national emergency. Question of law (can the president tell you to violate the law) and fact. Convicted of burglary, conspiracy, etc.
Cheek v. US:
Pilot failed to file income taxes, willfully means to “voluntary and intentionally violate a known legal duty” and he did not know he had a legal duty.
Rationale to Rule: Maintain certainty of the law, avoiding subjectivity of the law, deterring fraud, encouraging legal knowledge

Specific v. General Intent Crime
Specific Intent
Rule: Voluntary intoxication is a defense if it negates the mens rea required for the crime /specific intent portion of the crime.
Some states don’t allow voluntary intoxication as a defense(Montana v.Egelhoff)
US v. Williams: Tried to rob bank and was intoxicated, but not so intoxicated that he did not understand what he was doing or to not have the intention to steal from the bank.
People v. Whitfield: Intoxication negated the malice necessary for depraved heart murder
General Intent
Rule: Voluntary intoxication is not a defense for the general intent portion of a crime.     
Exception: Intoxication is a defense for attempted general intent crimes
Intoxication is a defense if it negates mens rea for crimes requiring purpose/knowledge.
Intoxication is not a defense for crimes requiring recklessness/negligence.

Cultural Defense
Rule: There is no cultural defense in American criminal law