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

Fall 2002 / Prof. Lee
A.    RETRIBUTION : Deontological / “Backward-looking”
1.                  Punishment is justified when it is deserved. It is deserved when the wrongdoer freely chooses to violate society’s rules. Punishment of a wrongdoer is deserved regardless of societal consequences. (“just deserts”)
2.                  Kant:
Punishment of an innocent person is never permissible. People cannot be used as a means to an end / must be treated as ends.
Punishment is required whenever someone is guilty. By not punishing the guilty, we are accomplices to the crime.
3.                  Different retributive theories
a)      Jus talionis = “eye for an eye.” A visceral justification.
b)      Breach of hypothetical Social K: We owe something back to society, namely forbearance from committing crimes & offending others. If we shirk this obligation, we have breached the social K & need to be punished to enforce the K.
c)      Quasi-K: Unjust enrichment – People who offend become enriched in some way and are gaining something valuable. We must force them to divest themselves of their ill-gotten gains.
d)     Unfair competitive advantage: Everyone is society should play by the same rules. People who commit crimes have an unfair advantage. We must punish them to “level the playing field.”
e)      “Evening up the cosmic books”: Punishment restores the cosmic balance, which is thrown off when one commits a crime.
4.                  Problems with retributivism
a)      Imperfect correspondence of jus talionis. : Incarceration is used an the punishment for nearly everything (not true “eye-for-an-eye”). Once you get away from the perfect one-to-one correspondence, punishment becomes very arbitrary.
b)      Unjustness of existing social order: We don’t all start at the same place
c)      Shared guilt: The only person punished is the criminal himself, when, in reality, other people have been part of creating the mental composition of the criminal.
d)     Who has the moral standing to punish? It is not accurate to view the world as criminals & non-criminals.
B.     UTILITARIANISM : Consequentialist / “Forward-looking”
1.                  The purpose of all laws is to maximize the net happiness of society. Rational actors will take into account the likelihood & severity of punishment. (Bentham)
2.                  Consequentialist (utilitarian) reasons
a)      Specific deterrence: After punishing a criminal, he will not commit the same crime again, out of fear of being punished again
b)      General deterrence: Making an example out of a criminal, thereby scaring everyone else into compliance
c)      Incapacitation: By placing criminals in prison, they are unable to commit further wrongs against society
d)     Rehabilitation: Criminals can be reformed by their punishment. Attempted & failed in the 50s & 60s.
e)      Teaching norms to society: By punishing criminals, we show society what is unacceptable. Difference from deterrence: Punishment functions as pedagogy, instilling values in the population. People must realize what is wrong in order to be deterred.
3.                  Criticisms of Utilitarianism
a)      Actors tend to underestimate the likelihood of apprehension
b)      Rehabilitation: We do not know how to reform offenders. AND, why do offenders deserve resources needed to reform them?
c)      System ignores the dignity / human rights of offenders b/c humans are used as simply a means to an end.
1.                  Condemnation: Sometimes we punish to condemn, putting a distance b/n society and the criminal. This way, society does not appear to condone the criminal activity.
2.                  Reaffirmance: We also punish to reinforce our statutes. If we never enforce a law, people will assume they need not obey it.
3.                  Absolution: When we punish for something, we tend to disassociate others who were somewhat involved in the crime (e.g. date rape).

1.                  ACTUS REUS – A voluntary act that causes social harm.
2.                  MENS REA – The actor must have had a culpable state of mind when he did it (mental state necessary to commit offense)
3.                  Eg. Common law murder = killing of another human being with malice aforethought
a)      Actus Reus = killing of another human being
Mens Rea = malice aforethought
B.     ACTUS REUS:  Voluntary act OR omission to act where there is a legal duty to act
1.                  VOLUNTARY ACT
a)      Definition of “voluntary” is controversial; disagreement b/n JXDs
b)      Oliver Wendell Holmes: Voluntary act = “willed muscle contraction”
c)      MPC 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
2.                  OMISSION TO ACT
a)      Duty to act can be established only by the following circumstances:
(i)     Statute imposes duty
(ii)   Status relationship imposes duty
(iii)Contract creates duty
(iv)Duty was voluntarily assumed, signaling to others that no further help was needed
(v)   Status as landowner imposes duty
(vi)Tort duty to control certain 3rd persons (e.g. children,   employees)
(vii)           ∆ created peril in the first place
b)      Jones v. U.S.: Lady taking care of baby that died from malnutrition. She was not held criminally liable for her failure to act b/c she had no legal duty to care for the child.
c)      Criminal law imposes no general duty to rescue (e.g. David Cash)
C.     POSSESSION: Criminal law characterizes possession as a voluntary act, provided the possessor is conscious of the possession.
1.                  Possession = control over the item
2.                  In order to be guilty of possession of contraband, one of the following statements must be true:
a)      ∆ deliberately obtained contraband
b)      ∆ knowingly received contraband
c)      ∆ failed to terminate control over contraband after having a sufficient amount of time
3.                  Control = appreciable control, not necessarily exclusive or immediate
4.                  Constructive possession: Possession crimes do not require proof that ∆ was physically in possession of the item. Rather, prosecution can make out a case of constructive possession if ∆ exercised control over the item.
5.                  ∆ must be aware that he possesses the item to be guilty
6.                  People v. Ireland: Man living in trailer with wife’s pot. Conviction reversed b/c jury might have been misled into thinking that mere knowledge of contraband, w/o control, was sufficient
1.                  Do not require commission of any specific acts. Offender is prosecuted simply because he fits in a certain class of people (e.g. homeless, drug addict).
a)      Status crimes are UNCONSTITUTIONAL
2.                  While being an alcoholic cannot be criminalized, public intoxication can be (Powell v. Texas). Loitering ordinances have received mixed outcomes.
3.                  Robinson v. California: CA statute that made it illegal to be addicted to narcotics was rule unconstitutional by SC b/c it’s a status crime.

A.    MPC / Majority Rule Levels of Culpability
1.                  Purpose = “Conscious object”
2.                  Knowledge = “awareness” or “practical certainty”
3.                  Recklessness = “Conscious disregard of substantial & unjustifiable risk”
4.                  Negligence = ∆ should have recognized substantial & unjustifiable risk
B.     Purpose v. Knowledge
1.                  Purpose connotes desire to have harm occur; knowledge connotes callousness to whether harm occurs
2.                  e.g. Selling a weapon to someone who obviously intends to kill = knowledge
C.     Knowledge v. Recklessness
1.                  Both are subjective. 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. Knowledge = about 95% certain / Reckless = anywhere from 5-51% certain.
D.    Recklessness v. Negligence
1.                  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 = subjective. Negligence = largely objective.
No fore thought
Stopped to think
Did not perceive risk, but SHOULD have
Demonstrated ability to see risk, but DISREGARDED
E.     Hierarchy of culpability: If you have proved a higher level of culpability, you have satisfied all lower levels of culpability
F.      “Elemental Analysis” v. “Offense analysis”
1.                  “Elemental Analysis” – Under MPC, every element of an offense is capable of having its own mens rea. Theoretically, the legislature could assign different levels of culpability to each element of the offense.
2.                  “Offense Analysis” – Mens rea is assigned to the offense as a whole.
G.    When no culpability term appears in an offense, use recklessness; if only one term appears, use that term for all elements within the offense (unless absurd).
H.    “Specific intent” v. “General intent”
1.                  “Specific intent” crimes = crimes that require evidence of an extra-special mental element in addition to proof that ∆ had a particular state of mind when he committed the acts constituting the crime.
a)      e.g. larceny = taking away of property w/ intent to permanently deprive
2.                  “General intent” crimes merely require proof of a particular state of mind accompanying the acts constituting the crime.
a)      e.g. battery
3.                  Attempts = specific intent offense
I.       Transferred Intent: In criminal law, intent cannot be transferred from one crime to another. Transferred intent does apply in felony-murder & misdemeanor manslaughter cases. Additionally, criminal law is willing to “transfer intent” from one victim to another.
J.       Motive v. intent: Motive is the moving cause which induces action; it has to do wholly with desire. Intent is the purpose or design with which an act is done and involves the will. Once the commission of a crime is established – the doing of a prohibited act with the necessary intent – proof of a good motive will not save the accused from conviction.
K.    State v. Peery: Man stripped in front of window. Indecent exposure requires purpose to be lewd. ∆ did not have “conscious object” to be lewd, thus was not guilty. COMMON LAW APPROACH to mens rea.
L.     “Ostrich defense”: When ∆ was aware of a high probability that a certain fact existed but deliberately avoided finding out for sure in order to escape criminal liability. A number of federal courts have held that a mens rea of “knowledge” can be demonstrated by such “ostrich cases.” MPC agrees with these courts.

A.    Mistake of Fact
1.                  A mistake of fact is a defense if it negates the mens rea required to commit the crime.
2.                  Common law approach
a)      General intent offense: For a valid defense, the mistake must be both HONEST & REASONABLE
b)      Specific intent offense: Even an unreasonable mistake of fact is a defense, so long as it was sincere.
3.                  MPC APPROACH
a)      For crimes requiring purpose or knowledge, an honest mistake of fact is a defense, even if the mistake was reckless
b)      For crimes requiring recklessness, a mistake of fact is a defense as long as it was not reckless
c)      For crimes requiring negligence, a mistake of fact is a defense provided the mistake was not negligent (reasonable mistake)
4.                  EXCEPTIONS
a)      Sex crimes against minors: ∆ may not claim that he mistook the age of a minor he had sex with (CA, however, does allow this defense for statutory rape)
b)      Strict liability offenses: For offenses with no mens rea requirement, there is no mistake of fact defense. (e.g. speeding – can’t say the speedometer was broken)
5.                  Gordon v. State: Underage boy who votes b/c his mom told him he was 21 not guilty of general or specific intent crime (we’re not sure which it is in this case – court doesn’t say) b/c his mistake was honest & reasonable
Mistake of Fact
Specific Intent Offense
Specific Intent Portion
General Intent Portion
General Intent Offense
DEFENSE (e.g. Child sex & strict liability)

B.     Mistake of Law
1.                  Same law or different law mistake?
a)      Same Law mistake: ∆ misunderstands the law under which they are being prosecuted. Generally, ignorance is no defense b/c its too difficult to prove knowledge of law. Some statutes, nevertheless, require knowledge of law. Wendt: ∆ who didn’t pay income taxes b/c he thought he didn’t have to was still guilty. For a same law mistake to be valid, it must fall into one of four categories:
(i)     Law not published & ∆ not aware it exists (e.g. Lambert)
(ii)   ∆ reasonably relied on statute later invalidated
(iii) ∆ reasonably relied on erroneous court opinion / interpretation by Supreme Court
(iv)∆ reasonably relied on advice of public official charged with responsibility of enforcing law (conflict of authority)
b)      Different law mistake: ∆ is mistake about some relevant law other than the one under which he is being prosecuted. A valid defense depends on the type of offense.
(i)     General intent offense: NO mistake of law defense
(ii)   Specific intent offense: For a valid defense, the specific intent portion of the offense must be an honest mistake.
2.                  Lambert v. California: SC addressed conviction of ∆ under a law that made it illegal for any convicted person to be in LA for a period of more than 5 days without registering. ∆ moved to LA & didn’t register (didn’t know about the law. SC overturned ∆’s conviction based on a legitimate mistake of law defense. ∆ did not know about law & ∆’s conduct was wholly passive (distinguished from Reyes, when drug dealer’s choice

ntary manslaughter v. No crime
(i)     Is there retributive value in punishing?
(ii)   Is the action deterrable?
(iii)Is it an aberrational behavioral episode?
e)      Involuntary manslaughter v. Extreme recklessness (2nd degree) murder
(i)     Severity of risk
(ii)   Consciousness of the actor’s risk taking (in some JXDs)
f)       Commonwealth v. Welansky: Club owner guilty of involuntary manslaughter for blocking exits in club (fire broke out and people died). Court used RP standard & found ∆ reckless (but not extremely reckless, thus not 2nd degree murder)
g)      Commonwealth v. Feinberg: ∆ sold new, more potent Sterno to bums, knowing they would drink it. Guilty of involuntary manslaughter b/c his actions were reckless.

No Crime
Involuntary Manslaughter
1st degree murder
Voluntary Manslaughter
The killing of a human being by another
Malice Aforethought ?
1. Intent to Kill
2. Intent to do SBI
3. Extreme recklessness
4. Intent to commit a      
felony during which
someone dies
2nd degree murder
PREMEDITATION, certain methods of killing, certain F-Ms
Depraved heart, extreme recklessness (∆ thought about great risk), any murder that isn’t 1st degree
Provocation or EED
Criminally negligent or reckless homicide (lesser degree of risk than 2nd degree / reckless, rather than extremely reckless (2nd degree)
A.    General Rule: If an actor causes a death in the course of committing an intentional felony, or in the course of fleeing, it is murder
1.                  Flight continues until the felon reaches a place of apparent safety
B.     Actual prosecutorial use of the rule
1.                  Rare the ∆ is convicted on F-M theory when killing was unambiguously accidental
2.                  Prosecution requests F-M instruction in cases where evidence of ∆’s state of mind is ambiguous or conflicting
3.                  Prosecution requests F-M instruction as insurance policy against appellate reversal of favorable evidentiary rulings
1.                  Underscores seriousness of killing (death more important than the felony)
2.                  Reaffirms sanctity of human life
3.                  Deters underlying offenses
4.                  Encourages felons to take precautions against accidental killings
5.                  Discourages felons from fraudulent claims of accidental killings (felons less likely to “silence” their victims)
6.                  Implied consent – a person committing a felony accepts the risk that someone might be killed; thus, they should be held responsible for a death
7.                  No standing to complain
1.                  Underinclusiveness (e.g. sometimes we convict felons of murder, but murderers of involuntary manslaughter)
2.                  Inefficiency of deterrence – why don’t we just punish these felonies more severely?
3.                  Undeterrability – If felons don’t think they’ll get caught, this rule won’t deter them
4.                  Fictitious nature of “implied” consent – punishment for murder has not been consented to simply by felon’s actions
5.                  Illimitability of “standing” principle
1.                  Limitation: Underlying felony must be inherently dangerous to human life
a)      MAJ: “Particular facts” test for determining which felonies are inherently dangerous: Did this particular crime pose a high probability of death?
(i)     Criticism: Hindsight is always 20/20
b)      “Abstract test” (CA): Is it possible to violate the felony statute in a way that doesn’t endanger human life? OR Does the typical commission of this crime pose a high probability of death?
(i)     Criticism: Too academic
c)      Note: Inherently dangerous felony rule does not apply to felonies enumerated in CA P.C. § 189 (e.g. robbery)
2.                  Limitation: “Merger” doctrine
a)      Where the underlying felony is incapable of serving as the predicate offense for F-M
(i)     E.g. manslaughter, felonious assaults (in some jxds, e.g. CA)
b)      Rationale: Without such a limitation, all manslaughters would automaticall be raised to F-M
c)      People v. Hansen: Discharging a gun into a house does not fall under the merger doctrine so it can be the predicate for F-M.
(i)     People v. Ireland rule: Any felony that is an “integral part of” and “included in fact within” the resulting homicide may not serve as a predicate for felony murder
(ii)   Hansen limited the Ireland doctrine to assaults
3.                  Limitation: Agency Doctrine
a)      General idea: For F-M rule to apply, the killing must have been done by the felon or co-felon (this is true in MAJORITY of states)
b)      Proximate cause: In the minority of states that do not accept the agency doctrine, the underlying felony must constitute the proximate cause of death
c)      A minority of states that do not accept the agency doctrine or proximate cause state that the killing must be “in furtherance of the felony”
d)     People v. Dekens: ∆’s co-felon was shot by the victim of the felony. ∆ convicted for murder of co-felon. Illinois Sup. Ct. refused to accept the agency doctrine.
e)      MAJ of courts agree that F-M applies when the victim is a co-felon
f)       Initiation of Gunplay Rule (CA): Where the killing is NOT done by the felon or co-felon, can still say felon was “extremely reckless” b/c he initiated gunplay

A.    38 states & the federal gov’t. authorize the death penalty / 12 states & D.C. do not
1.                  Retribution
a)      Moral equality of humans / unique appropriateness of jus talionis
2.                  Deterrence