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Criminal Law
University of California, Hastings School of Law
Little, Laura E.

1.       Differences Criminal/Civil:
a.        Standard of proof: Beyond Reasonable Doubt as opposed to Preponderance
b.        Punishment: Jail
c.       State controls as opposed to private parties b/c of more severe penalty
i.      Assumes state is good at bringing only cases that should be brought, better to leave them in control than private citizens
1.      Purposes of criminal law:
a.       Guilt (retribution): punishment
b.       Deterrence: prevent others from doing it by setting example
i.      General deterrence: stop general public from doing it
ii.      Specific deterrence: stop individual (accused) from doing it again
iii.      Doesn’t work if you’re not thinking about it
iv.      Some people don’t think they’ll get caught, take their chances
c.       Message sending: letting people know—expressing society’s condemnation—blame
d.       Victim vindication
e.       Rehabilitation: not really motivation anymore
f.        Protection/incapacitation: can’t hurt anyone else while in jail
i.      Small % commit crimes
ii.      Likely to commit lots of crimes: rescidivism
iii.      Incapacitation reduces crime rate
g.       Prevent vigilante justice
2.       Standard of Proof:
a.       Under Winship: Due process requires that every element of crime has to be proven beyond a reasonable doubt (13 year old accused of stealing money from locker)
b.       On Appellate review: View evidence in light most favorable to the State (believe all the evidence of P and not of D) and if it still seems wrong, then overturn
i.      Constitutional standard for appellate review: could a rational juror find as was found below
ii.      Reasons:
1.       Presumption of innocence has been rejected by the jury
2.       Show respect to juries
iii.      Burden that D has is large—insufficiency of evidence takes a whole lot of evidence, hard to win on
iv.      Can’t put in new evidence on appeal, stuck with record below
3.       Legality: Due Process and Fair Warning
a.       Due Process: 
i.      Laws can be applied only prospectively; not retroactively
ii.      Requires Fair Warning: content and scope of law should be clear and specific so as to provide notice to public
b.       Legality principle: disallows judicial crime creation—retroactive + province of legislature (courts not politically competent to define crime)
i.      Due Process: 
1.       Keeler: K prosecuted for murder b/c he killed his wife’s viable fetus by kicking her. Baby born dead. Fetus born dead not a “human being” under common law.
2.      Court could not expand law to apply retroactively; can only be applied prospectively
3.       Just as can’t apply a new statute to conduct that happened before statute was written: ex post facto
ii.      “Vagueness” doctrine: fair warning
1.       Statutes have to be specific so that people have fair warning
a.       Test: whether the statute employs terms so that a reasonable person can understand what it means
b.       Discretion: Can’t be so vague as to vest “virtually complete discretion” in law enforcement. E.g. Vagrant 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). 
iii.      Rule of Lenity (Keeler): rule of strict construction
1.       when the meaning of a statute is in doubt, favor the interpretation that favors D
iv.      Shaw: D published a magazine called the Ladies Directory in which names, addresses, numbers and other info about prostitutes published. Convicted of conspiracy to corrupt public morals—law not on the books.
1.       English justice claimed the courts could fill in gaps in law.
2.       But it is judge invented crime, ex post facto application, and fail to give fair warning
4.       Points of Discretion:
a.       Police can engage in selective enforcement
b.       Prosecutorial plea bargaining—consequences vary per prosecutor’s biases
5.       Punishment
a.       Philosophy:
i.      Retribution “just desserts”
ii.      Utilitarian (deterrence etc.)
iii.      Coexist, often merge
b.       Types of punishment: jail, Fines, Community Service (work), Probation (supervised release, violation leads to jail), Registration (sex offenders), Death, Deportation (not penalty for crime), Loss of rights, Stigma (collateral consequence), Rehabilitation programs, Restitution to victim
c.       Factors in Sentencing: Bergman: filed claims which didn’t exist for Medicaid (public) funds. Rabbi who owns nursing homes, don’t know how long he had been stealing. Could get 5 years, got 4 months; $2.5M restitution
i.      How to decide how much punishment:
1.       Retribution
2.       Specific deterrence
a.       if fining D, look at how much fine will ‘punish’
b.       Can subpoena evidence of how much he has
3.       Not dangerous, no need to incapacitate, but what about general deterrence
4.       Rescidivism rate: if over 40 rescidivism drops off. Also murder has low rescidivism, fraud perpetrators have high rescidivism
5.       Rehabilitation: no one should be sent to jail for rehabilitation
d.       Variables in Sentencing
ii.      Most important variable in sentencing in court was what judge you got—judges have tremendous discretion
1.       Have to have agreement on goals before consistency in sentencing can result
2.       Sentencing is individual—makes it difficult, tailored to individual
iii.      Lawyer is next big variable—how hard does lawyer work to personalize D
iv.      Blacks were getting longer sentences—30 to 40%–after controlling for other variables than whites
v.      Sentencing Reform Act 1984 for federal crimes—proponents Strom Thurmond and Ted Kennedy
1.       Result is table for federal crimes
a.       White collar crime punishment likely to increase
2.       Have to sentence in range unless extraordinary circs
3.       No parole
4.       Reduce disparity—including race disparity
5.       Prison officials decide the kind of facility that they want to hold prisoner in
vi.      Almost all states have some sort of sentencing guidelines system now—not necessarily as detailed—fed more strict as well
e.       Used to be no right to appeal your sentence. Now you can appeal
i.      Standard of review on appeal is abuse of discretion
ii.      Before only ground was cruel and unusual, 8th amendment proportionality argument—doesn’t get you very far—very hard to win
f.        Proportionality:
i.      Under the Eight Amendment, Constitution prohibits “cruel and unusal punishment”
ii.      Cts have frequently held that punishments that are in themselves acceptable for particular offenses may violate the prohibition if they are disproportionate to the severity of the crime
iii.      Rummel: D got life in prison w/ parole after 3rd nonviolent felony conviction. Court held that statutory sentence term was not cruel and unusual punishment
1.       held that it was improper for the Ct to evaluate such statutory prescriptions (sentencing rules) by other criteria b/c penalties involve subjective judgments that are appropriately made by the state legislature
iv.      Solem v. Helm: D gets life in prison no parole for writing $100 bad check. Court strikes it down as disproportionate, after using three factors to determine if disproportional:
1.       gravity of offense
2.       comparison to sentences imposed on other criminals in same jdxn
3.       Comparison to sentences imposed for same crime in other jdxns
4.       Court distinguished on basis of availability of parole in Rummel—only recourse in Solem is pardon/clemency (more unlikely)
v.      Harmelin: 650 grams of cocaine, first offense, life in prison, no parole
1.       Mandatory sentence. Q of whether a life sentence for a relatively unthreatening crime can be cruel and unusual
2.       majority concluded that it might be cruel, but was not unusual
3.       Didn’t overrule Solem, but this sentence OK
4.       But probably highly discounted Solem
a.       Solem said there should be proportionality
vi.      Three strikes laws upheld—no 8th Amd. Violation since only applies to serious violent crimes. Also, no double jeopardy: California v. Monge: not an enhanced sentence for previous crimes, but a determination that the new offense is an aggravated crime in light of offender’s history
g.       Under Queen v. Dudley and Stephens, consent is not a defense to a crime
6.       Culpability = Actus Reus + Mens Rea = Crime – Defenses
a.       A crime requires both a bad act and a bad intent.
7.       Actus Reus: 
a.       Have to have voluntary act for criminal liability
b.       Exceptions: MPC 2.01 (3) & (4)
i.      Omissions—failure to act when you have a duty to act
ii.      Possession—don’t have to do anything
1.       Constructive possession
c.       Why not punish criminal intent?
i.      Sometimes lack of proof—but can often prove it
ii.      Freedom of thought
iii.      No harm from bad criminal intent alone
1.       expression of intent can be offense
iv.      intention does not necessarily manifest in conduct; intervening too early
v.      goal of criminal justice: not make victim whole, but rather blame-placing system—culpability—act leads to culpability, stigmatize them
d.       Voluntary Act:
i.      Sleepwalkers and epilectics
1.       Parks case: Canadian case where man killed his mother in law while sleep-walking. Drove car to in-law’s home.
2.       MPC 2.01 (p. 154): following are not voluntary acts:
a.       A reflex or convulsion
b.       Bodily movement during unconsciousness or sleep
c.       Conduct during or as a result of hypnosis
d.       Bodily movement that is otherwise not a product of effort or determination of actor, even

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
8.       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
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
vii.      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 that people would see him.
vii.      People v. Hood (Cal. 1969)
1.       Defense: So drunk I don’t even remember it
2.       Should the jury have been instructed that intoxication can be a defense
3.      Intoxication is a defense to a specific intent crime, not to a general intent crime
4.      What is a specific intent—assault has come to be recognized as a specific intent crime
a.      either have to characterize assault as a general intent crime
b.      or have to abandon rule
c.       they end up characterizing shooting somebody/assault as general intent crime
c.       MPC 2.02
i.      MPC’s biggest contribution is levels of culpable mens rea:
1.       Purposefully: Intends the action and wants result to happen
2.       Knowingly: Aware of his conduct/action and practically certain that result will follow
3.       Recklessly: Consciously disregards a known substantial and unjustifiable risk that material element exists or will result form conduct. Disregard of risk is gross deviation from standard of care, i.e. unreasonable to know and disregard risk.
4.       Negligently: should be aware of a substantial and unjustifiable risk that material element exists or will result from his conduct. Failure to perceive risk is a gross deviation from the standard of care, i.e. unreasonable not to know.
ii.      Common law combines recklessness and negligence. More a question of degree.
1.       Not clear whether objective or subjective, but probably subjective, but juries may utilize objective std
iii.      C/L used vague terms to describe mens rea: maliciously, intentionally, corruptly etc.
iv.      MPC has been adopted by over 30 states.
v.      Can have more than one mens rea for different elements of same offense e.g.
1.       Purposefully: purposely with regard to result, but only awareness of attendan circs.