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

Criminal Law Outline
Professor Rory Little, Fall 2009
Book: Criminal Law Cases and Materials, Saltzburg

GENERALLY: a crime requires (1) a guilty act or omission, (2) a culpable mens rea, (3) a harmful result.

Justifications for Punishment / Goals of Criminal Law
1)      Deterrence
a.      General Deterrence: deterring persons other than the criminal from committing similar crimes for fear of incurring the same punishment.
b.      Specific Deterrence: deter the criminal from committing future crimes.
2)      Message Sending/Reinforcement of Values: give others fair warning of what the law is and what conduct is culpable; educate the public on what’s good and bad conduct and to develop respect for the law.
3)      Retribution: make criminals pay for their acts; vent society’s outrage and need for revenge.
a.      Idea: we send you to prison to make you better (but, this is not the case anymore).
4)      Rehabilitation: theory that imprisonment will provide opportunity to reform criminal into person that will conform to societal norms.  
5)      Incapacitation: while in prison, criminals have fewer opportunities to commit crimes. 
1.      The Use and Abuse of Freedom (1-5) –The Harm Principle, society has a legitimate claim to prohibit harmful or unreasonable behavior
a.       John Stuart Mill – Harm to others is the ONLY Standard. Harm to self is punishment enough, harm to others warrants and demands punishment
b.      Feinberg – Yes, but there are four categories:
·         Harm to others: preventing harms to others
·         Harm to self: Paternalism – is government justified in preventing harm to self?
·         Harmless Wrongdoing: distinguish between harmful and offensive behavior and then determine if offensiveness is an appropriate justification for criminal law.
c.       Fletcher – Patterns of criminality: Manifest or Subjective (in se/prohibitum)
·         Two types of crimes:
(1)   “malem in se”: bad in and of themselves – murder, rape, theft, no debate about it
(2)   “malem prohibitum” “bad”: because they are prohibited. It is not obviously bad – such as parking in a bus zone.
d.      Theory of punishment: Make the punishment fit the crime, OR Punish to create deterrence

2.      The Capacity to Obey (5-10)
a.      Case: Queen v. Dudley and Stephens page 6
i.      Lifeboat case – (why wasn’t the third eater prosecuted? B/c he’s the snitch). They killed the weakest link, no drawing of lots. Death sentence commuted to six months.

*How the MPC would have treated Dudley and Stephens differently (see below)

–          Necessity not a defense to murder
–          Consent not a defense to murder.
–          Defense would’ve been possible: “law is ineffective if it imposes on the actor a standard that his judges are not prepared to affirm” in similar circumstances. Laws that cannot reasonably be followed are ineffective.

MPC § 3.02: allows defense of necessity if you can persuade a jury that impeding harm was greater. “Choice of Evils”

MPC § 2.11 on Consent: consent may be a defense unless (1) serious bodily harm is involved, (2) person is legally unable to give consent. Therefore, consent is not a defense to murder.

MPC § 2.09 Duress:duress defense when Δ was coerced by use or threat of unlawful force… unable to resist

3.      Controversial Crimes (10-18)
a.       Little: Punishment sends a message to society defining the standard of care – Pier Collapse Handout – example of a civil omission becoming criminal manslaughter
b.      Crimes require ACT/OMISSION and INTENT
(1)   Unprotected Sex as Assault
State v. Stark p. 11 
i.      Facts: HIV positive man knowingly having unprotected sex w/ women; convicted of assault.
∆ Argument: no notice b/c statute unconstitutionally vague; statute does not define “expose” & did not state it was a crime to transmit HIV to another human being.
ii.      Evidence Supporting Conviction: “if I’m going to die, everybody’s going to die.”
iii.      Statute: (a) actually has HIV, (b) exposed somebody to HIV w/ the (c) intent to commit bodily harm.
iv.      Rule: don’t need to prove that ∆ knew what statute meant, just that a reasonably intelligent person would understand. The intent must be simultaneous with the act. 
v.      Public Policy – stop the spread of AIDS
vi.      Common Law Rule: People are presumed to intend the natural and presumable consequences of their actions
(2)   Prenatal Delivery of Drugs
Johnson v. State p. 13
i.      Facts: Mother took drugs just before birth and delivered drugs through umbilical cord at the moment of birth before it is cut as “Passing Controlled Substance to Minors” conviction overturned.
ii.      Statute: makes transmission of controlled substance to minors illegal.
iii.      Procedural History: FL App. Ct. affirmed, but FL. Sup. Ct. reversed on ground that statute was never intended to convict pregnant women.
iv.      Holding: cannot convict mom b/c her acts do not fall clearly w/ in the language of the statute. Must defer to legislative intent, but legislature did not specify intent to include babies.
v.      Reasoning:
a.       Delivery requires some affirmative rather than passive act. Passing though umbilical court = passive.
b.      Legislature would’ve included babies if that was their intent.
c.       No fair notice = due process violation. “Void for Vagueness”
(4)   Prostitution
James & McCray page 16
i.      Facts: businessmen convicted for prostitution.
ii.      Holding: first-time prostitutes should not be convicted of a misdemeanor, but first users should be.
iii.      Reasoning: judge makes implicit assumption of economic and gender imbalance & that prosecuting prostitutes (which are the real victims) will encourage more prostitution whereas fining first users well deter it. No an abuse of discretion by judge b/c this is how the DA did it before.
iv.      Illustrates: judges have discretionary power.
v.      What’s fair? Judge says punishing first time prostitutes is unfair, however prosecutor says punishing first time users is unfair.
vi.      Justification for making prostitution a crime. Page 18
a.       Harms specific groups in the community (i.e. a prostitution house may harm land values).
b.      Offends the community as a whole (i.e. community values).
c.       It harms the prostitute. (laws against prostitution are paternalistic). 
Functional and Procedural Basis
1.      Standard of Proof (33-36)
In re Winship
i.      Facts: 12 y/o boy charged with stealing money from a locker room.
ii.      NY Statute: preponderance of the evidence standard for juveniles.

mposes new law retroactively.
d.      Now Keeler w/d Be Convicted of Murder under CA or Fed Law B/c:
CPC 187: amended to include unborn child; no viability of fetus requirement.
i.      People v. Davis (CA): no proof of viability is required
ii.      People v. Taylor: D can be convicted of 2nd degree murder even though he has no knowledge that the woman he shot was pregnant
iii.      Federal Unborn Victims Act: has same effect as CPC 187. Signed by President Bush in April 2004. 
iii.      Shaw v. Director of Public Prosecutions Call girl Mag p. 42
a.       Facts:convicted of “Conspiracy to corrupt public morals” in UK in 1962, for publishing magazine featuring call girls.
b.      Reasoning: judges have residual power to create law in cases when there is no statute or gap fill when there is vague statutes.
c.       Dissent by Lord Reed (American View): Even if the court has the power to do so, it should not create new law when there is no general agreement on the wrongness of the act.    
d.      Bad Decision B/c: judge invented new law (ex post facto application of criminal law), failed to give fair warning, gave prosecutors & police unlimited discretion. 
e.       Could Not Be Convicted Today B/c:
i.      Judges cannot create new offenses b/c due process requires fair notice.
ii.      Vagueness Doctrine: statutes are supposed to be written so that a person of reasonable mind can determine what is criminal and the punishment for that statute.
iv.      Void for Vagueness Doctrine: voids vague statutes. Johnson & Stark Cases
a.       Policy Reasons for Vagueness Doctrine:
i.      Notice
ii.      Fair Warning
iii.      Prevent Arbitrary and Discriminatory Enforcement
v.      Cases found unconstitutionally vague:
a.       NJ v. Palendrano p. 38: Defendant charges with being a common scold under a very old statute from the 1800’s.
i.      Holding: statute if void for vagueness
ii.      Reasoning: the statute has been superseded by the disorderly persons prohibition; one can hardly conceive anything more vague and indefinite than such an old statute.
b.      Kolender v. Lawson p. 38
i.      Facts: appellant challenged statute as unconstitutionally vague, which required persons found loitering to provide credible and reliable identification (i.e. what constitutes this?)