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

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
d.       More serious agreed upon harms
Purposes of criminal law:
A.      Guilt (retribution): punishment, idea that “you will pay for that.”
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
C.      Message sending: letting people know—expressing society’s condemnation—blame
D.      Rehabilitation: has to do with the punishment/sentencing phase. (Drug treatment…)
E.       Protection/incapacitation: can’t hurt anyone else while in jail
i.      Small % commit crimes
ii.      Likely to commit lots of crimes: recidivism
iii.      Incapacitation reduces crime rate
Standard of Proof: beyond a reasonable doubt
F.       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)
G.      On Appellate review: View evidence in light most favorable to victor (believe all the evidence of victor and not of loser) and if it still seems wrong, then overturn
i.      Constitutional standard for appellate review: could a rational juror find as was found below
ii.      Can’t put in new evidence on appeal, stuck with record below
iii.      Reasons:
1.       Presumption of innocence has been rejected by the jury
2.       Show respect to juries
iv.      Better to have a system that lets go some criminals than one that keeps innocent in.
Constrains on Beyond a Reasonable Doubt
H.      Due Process: 
i.      Fair Notice: Laws can be applied only prospectively; not retroactively
1.       Keeler: fetus kick. Can’t get D bc changed law after trial.
ii.      Fair Warning: content and scope of law should be clear and specific so as to provide notice to public
iii.      No Vagueness: Must be specific enough so that a reasonable person would know that what they are doing is against a statute. Can’t be so vague as to vest “virtually complete discretion” in law enforcement. E.g. defining loitering as “remaining in one place with no apparent purpose.”
1.       Shaw: D published a magazine soliciting prostitution. Convicted of conspiracy to corrupt public morals—law not in the books.
a.       English justice relying on common law. But it is judge invented crime, ex post facto application, and fail to give fair warning.
Points of Discretion:
I.        Police can engage in selective enforcement.
i.      Stark- HIV spread: may want only prosecute people who do not tell their partners.
J.        Philosophy:
i.      Retribution “get them back”
ii.      Utilitarian (deterrence, message sending, incapacitation, rehabilitation, communicate seriousness of crime)
iii.      Coexist, often merge
K.      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
L.       Two types of sentencing:
i.      Determinant sentencing: occurs at a determinant point. (Common law model and largely today has disappeared)
ii.      Indeterminant sentencing: (not determined by statute must go to a decision maker). Ex: Whoever is convicted of perjury cannot have jail for more than 5 yrs.
1.       Sympathetic facts with sympathetic victim will probably go to probation.
M.     Factors in Sentencing: 
i.      Bergman (NY) 118: humanitarian Medicaid fraud rabbi. Could get 8 years, got 4 months.
ii.      How to decide how much punishment:
1.       Retribution
2.       General deterrence- only works well if there is certainty of detection and certainty of punishment. In our system there is no certainty of detection and there is no certainty of punishment so people will be more inclined to commit crimes.
3.       Specific deterrence
a.       If fining D, look at how much fine will ‘punish’
4.       Incapacitation: Not dangerous, no need to incapacitate.
5.       Message sending- you cant defraud the government.
6.       Rescidivism rate: if over 40 rescidivism drops off. Also murder has low rescidivism, fraud perpetrators have high rescidivism
7.       Rehabilitation: no one should be sent to jail for rehabilitation
8.       Communicate Seriousness of Crime.
N.      Variables in Sentencing
i.      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
ii.      Lawyer is next big variable—how hard does lawyer work to personalize D
iii.      Blacks were getting longer sentences—30 to 40%–after controlling for other variables than whites
iv.      Stephen Brier: his sentencing system is used: HANDOUT
1.There are two things we care about: the offense and the offender
a.       Offense: given a number based on how bad it is. (x-axis)
i.      Ex: bank robbery is 21… add 2 points if with gun. Add 5 if someone shot…
b.       Offender: give points for criminal history.
2.Eliminate parole and just do your time. Maybe 1 month out each year to promote good behavior.
3.Prisoners will have right to appeal sentence
4.Departures will be appealable
5.Sentencing commission amends the guidelines every year.
·      Judges hate guideline, they don’t want to be a cpu… but they are mandatory.
·      Late 80s and 90s, the sentencing started getting harsh making judges get angry.
·      Now you have to do all the guideline stuff but do not have to follow it. You still have to list the statutory factors and say how you applied them. And there is appellate review.
v.      If it is a fact that raises the maximum it is subject to these 3 requirements:
1.Proof beyond reasonable doubt
2.Jury found it, not judge
3.Fair advance notice that will face double max
O.      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
1.       The criminal record is chalk full of wrong names. By saying it wasn’t you it was another omar khayat then you can dispute your previous conviction.

Culpability = Actus Reus + Mens Rea = Crime – Defenses
a.       A crime requires both a bad act and a bad intent.
Actus Reus: 
A.      Have to have voluntary act for criminal liability
1.       Why not punish criminal intent?
i.      Sometimes lack of proof—but can often prove it (thoughts)
ii.      Freedom of thought
iii.      No harm from bad criminal intent alone
1.       Expression of intent can be offense (speech)
iv.      Intention does not necessarily manifest in conduct; intervening too early
2.       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 (we think they had it)
3.       Voluntary Act:
i.      Involuntary Acts MPC 2.01: 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 if conscious or habitual
i.      Jury decides if act involuntary: can be hard to convince of involuntariness
1.Parks: Canadian case where man killed his mother in law while sleepwalking. Drove car to in-law’s home. à Not convicted bc sleepwalking involuntary act.
2.People v. Newton (NY) 143: Man with gun on flight from Bahamas to Luxemburg. Emergency landing in NY. à No conviction bc did not voluntarily go to NY.
ii.      Rationale for ‘voluntary requirement”: Can’t deter involuntary acts; retribut

of circumstances, and hope they exist.
2.Knowingly: Aware of conduct/action and practically certain that result will follow
3.Recklessly: (DEFAULT MENS REA) 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.
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.
a.       If one of the 4 words is in the statute then we assume it applies to all elements unless told otherwise by statute.
b.       Willfully=knowingly
c.        “High probability” applied for a fact over “practically certain”
d.       Ignorance of law is not an excuse
e.        If statute requires a men rea, a higher mens rea works
ii.      CL 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.      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 attendant circs.
iv.      Villegas (NY) 184: V dumped vials of contaminated blood in river. Charged with knowing endangerment (placing in imminent danger of death). Ct. ruled that knowledge of a particular fact as an element can be established if D is aware of a high probability of its occurrence. Ct. decided that D was not aware of high probability that he was placing others in imminent danger.
D.      Deliberate ignorance as knowledge/ Ostrich Defense:
i.      Many federal courts and MPC 2.02 (7) hold that the D acted knowingly (with mens rea of knowledge) in cases of “willful blindness”—i.e, if he or she was aware of a high probability that a certain fact existed but deliberately avoided finding out for sure in order to escape criminal liability—unless D actually believed that the fact did not exist.
E.       Defenses:
i.      Mistake of Fact: is a defense if it negates the requisite mens rea
1.Gordon v. State(Al) 195: Voted before of age, b/c thought he was old enough based on what his mother/family told him. Ct. held that a honest and reasonable mistake of fact was a defense.
a.       Statute has no mens rea requirement—just “fraudulent voting”
b.       Court said legitimate defense: requisite mens rea is knowledge of facts that make it fraudulent —have to know you’re committing fraud.
2.Common Law: Mistakes have to be honest
a.       Reasonable (= non-negligent) mistake of fact is defense to both specific and general intent crimes
b.       Unreasonable mistake (that no reasonable person would make) is defense only to specific intent crime (lacks intent required)
c.        Navarro: D took 4 wooden beams from construction site. Mistake as to who owns the boards. Mistake of fact. TC said defense if he honestly and reasonably thought they were abandoned. Ct. of Appeals reversed b/c defense even if unreasonable mistake b/c grand theft requires specific intent of depriving permanently
3.MPC 2.04 (1)(a):
a.       Reckless mistake of fact is a defense to mens rea of knowledge and purpose
b.       Mistake of fact is a defense to reckless mens rea only if neg mistake or less.
c.        Smith: renter who ripped out wiring under improvements he’d made not knowing that improvements became property of landowner. Prosecuted for crime of damaging another’s property. Misconception as to who’s property—MISTAKE OF FACT. Defense allowed.
d.       MPC 1.12 “shifting” burden process (burden of production on defendant, ultimate burden of proof on prosecution)