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

I.       Nature and Structure of Criminal Law:
a.        The Capacity to Obey:
i.      Dudley & Stephens(pg 6): Cannibalism/Boat case. Death Sentence-Commuted to 6mos.
1.        Rule: (CL) Necessity is NOT a defense to Homicide.
2.        Black Letter Law: Cannot consent to murder.
3.        “Drawing Straws” Defense: Consent is not considered a defense
4.        MPC: Necessity can be defense if harm avoided is greater than taking of life (MPC views all lives weighted equally.)
a.        MPC § 3.02(1): Any Necessity can be considered a valid defense if the JURY thinks that it is Justifiable, “choice of evils”  
b.        Standard of Proof: The Due Process Clause of the Constitution has been held to require
i.      in re Winship(handout, pg 26): MPC § 1.11à13 yr old boy caught stealing from a women’s locker
1.        Rule: Must be able to prove beyond a reasonable doubt “every fact necessary to constitute the crime”.
a.        Jury must be instructed on all elements of the offense.
b.        Expanded # of crim. Convictions that could be pursued to U.S. SC
c.        We’d rather let guilty walk free than have innocent people be convicted. (Public Policy).
2.        Possible Defenses:
a.        Consent: (She said it was alright/he gave it to me)
b.        Debt: (She owed me money)
c.        Mistake: (I thought this was my locker)
d.        Duress: (Someone made me do it)
e.        Finder: (I found it)
f.         Misidentification:
g.        Vendetta:
3.        Once established “proof beyond a reasonable doubt” as a constitutional requirement for valid criminal convictions, state court defendants could style their claims of evidentiary sufficiently as claims of constitutional error. This greatly expanded the number of criminal convictions that could pursue all the way to the SC as presenting a “federal question.”
ii.      Burden of Proof is on the State.
1.        Reasons for a Higher Standard and Higher Burden of Proof.
a.        Liberty: Taking someone’s free will away (jail)
b.        Stigma: Hard to get a job or go back to normal after being criminalized.
c.        Community Confidence
d.        Individual Confidence:
e.        Margin of Error
iii.      People v. (Glen) Johnson(pg 29): while using this instruction, also told jurors that reasonable doubt was the same as the basis for “everyday decision making”
iv.      Scholarly Criticism of Reasonable Doubt Standard:
1.        Corwin argues that C of A recently defined the standard so expansively that “criminal defendants will have an extremely difficult time establishing due process violations.
2.        Solan proposes that the reasonable doubt standard may not be the “best way to promote the values out system of criminal law claims to venerate.”
v.      Jackson v. Virginia(pg 30): the SC established what the constitutionally required standard of review for evidentiary sufficiency should be for criminal convictions on appeal.
vi.      Apprendi v. NJ(pg 31) (2000): SC extended Winship to require that the prosecution prove beyond a reasonable doubt any fact “other than the fact of a prior conviction…that increases the penalty for a crime beyond the prescribed statutory minimum.
c.        Controversial Crimes: Many extensions of criminal law are controversial either because it is not clear what kind of harm they involve OR because they implicate some value other than harm (ie: offense, social harmony, etc.)
i.      State v. Stark (pg 11) : HIV patient who was exposing others
1.        Rule: It is enough to say that the DEF did act and had knowledge that certain results would occur with substantial certainty
2.        Statute: A person is guilty when they (a) actually have HIV and (b) expose someone else to HIV with the (c) intent to inflict bodily harm.
3.        Forced reconsideration of where to draw the line between public and private crime.
4.        By late 2003, 24 states had enacted HIV-specific laws criminalizing the intentional or knowing transmition of the HIV virus. Many of these provisions have been criticizes as vague and of dubious constitutionality.
5.        Lawrence v. Texas: US Supreme Court struck down a Tex statute that criminalized “deviant sexual intercourse with another individual of the same sex.” The court concluded that the statute violated liberty and privacy interests protected by the Due Process Clause.
ii.       Johnson v. State(pg 13): Mother consumes just before birth and transmits it to baby
1.        Statute: It is unlawful for any person over 18 to deliver a controlled substance to a person under 18
2.        Rule: The legislature would have included babies in the statute if that is what they intended, hence the absence implies they did not. (Court will not step in and interpret something different than what legislature says.)
iii.      People v. James & McCray(pg 16): 1st time prostitutes
1.        Statute: Prior to 1978 The Penal law was discriminatoryà a woman who was caught was guilty of Class B misdemeanor, while the male was only guilty of violation. Now male is also guilty of Class B misdemeanor.
2.        Rule: First time prostitution offenders should not be convicted of a misdemeanor but first time Johns should be convicted.
d.        Due Process & Fair Warning ( =Legality):
i.      Fair warning is a constitutional requirement that criminal Ds be accorded “due process of law.” (5th Amend).
ii.      Jeffries, Jr. Legality, Vagueness and Construction of Penal Statutes (1985)
1.        Principle of legality: prohibition on retroactive criminal lawmaking. “nulla poena sine lege”: no penalty w/o law.
a.        Fair notice: must have fair notice. No ex-post facto creation of law.
iii.      Keeler v. Superior Court(pg 34): ex-husband beat up pregnant wife, kills unborn fetus. Defense: No fair notice.
1.        Statute: §187 “Murder is the unlawful killing of a human being, with malice aforethought”
2.        Rule: To obtain a murder conviction, statute must say that rule applies to an “unborn fetus”.
3.        Updated: §187 “Murder is the unlawful killing of a human being, or a fetus, with malice aforethought”
4.        Court could not expand law to apply retroactively; can only be applied prospectively.
5.        Since Keeler a number of state legislatures have amended their homicide statutes to include the killing of an unborn child. Unborn Victims of Violence Act (2004): separate federal offense, doesn’t require proof D knew V was pregnant
6.        People v. Davis(pg 41): the CA SC refused to require proof of viability in order to sustain a fetal homicide conviction; but fetus needed to pass through embryonic stage of 7-8 weeks.
7.        Rule of Letiny: strict construction-when meaning

(LITTLE SAID CASE ISN’T IMPORTANT) LWOP for 7th nonviolent felony due to priors.
1.        Silently is not considered good law anymore, but hasn’t been overruled
2.        Courts think it is too disproportional to crime committed after 3 part test: (1) Examine the “gravity” of the offense and “harshness” of the penalty; (2) compare the sentence to other criminals in same jurisdiction; (3) compare sentences in other jurisdictions for same crime.
3.        “unusual punishment” hooks into the 8th Amendment
iv.      Rummel v. Estelle(pg 135)(distinguished in Solem) had 3 prior nonviolent & received life w/possibility of parole; courts said didn’t violate 8th amendment & punishment is subjective b/c there was possibility of parol.
v.      Harmelin v. Michigan(pg 137): LWOP for 1st offense-possession of 650 grams of cocaine; mandatory sentence.
1.        8th amendment does not guarantee proportionality.
2.        “Silently” overruled Solem, but courts remain divided on issue.
vi.      Ewing(pg 138):Stole 3 golf clubs worth $1200, got 25 years w/o parole.
1.        “Three Strikes” Lawsà the SC resolved a constitutional challenge to California’s so-called “three strikes” law. Rejects Solem’s proportionality analysis. Majority said 8th amendment doesn’t include proportionality review; dissent said it should include “gross proportionality” or whether it is grossly disproportionate to the crime.
e.              Sources of Criminal Law: Common Law; Criminal Statutes: (The prevailing source) classifies crime as a felony (death or imprisonment) or misdemeanor (fine, local jail incarceration); divided into degrees; MPC
III. Act (Actus Reus):
a.        General Rule: You have to have a voluntary act in order to have criminal liability
b.        Exceptions: MPC §2.01(3) & (4)
i.      Omission: A failure to act when you have a duty to act
ii.      Possession: which also includes “constructive” (not actual)
iii.      Why Act is required/Justification for not punishing criminal intent alone:
1.        A person’s thoughts are not susceptible to proof except by outward actions.
2.        Difficulty in distinguishing a fixed intent from a mere daydream or fantasy
3.        No harm from intent alone; expression of intent can be an offense though.
4.        Freedom of thought.
c.        Model Penal Code § 2.01 (page 142)

Common Law
Voluntary Act
movement of human body willed or directed by actor; can be result of habit
Person guilty of crime if “his liability is based on conduct that includes a vol act or the omission to perform an act of which he is physically capable. §2.01(1)