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Criminal Law
University of Cincinnati School of Law
Carroll, Jenny E.

General Overview:
A.    Crime is made up of Act + SOM (Act is anything not SOM)
B.     4 Elements of an Offense (only 1st 2 required)
1.      The ACT
2.      SOM
3.      RESULTS – (Causal Relationship- between a. and b. above and the result).
C.     Sequence of Analysis:
1.      Elements of the Offense (Statutory Requirements)
2.      “Quasi-Defenses” – (disprove elements of prosecutions charge)
3.      True Defenses – eliminate/excuse liability even if all the elements of the crime met
a.Then D gets Off . . .
D.    All criminal behavior is made so by statute.
E.     Rule of Lenity: statute which is unclear is “strictly construed” against prosecution.
F.      Theories of Punishment:
1.      Deterrence (Pragmatic Approach)
a.General – discourages others from committing an offense
b.Specific – criminal is incapacitated from committing further criminal activity; also, he may be deterred from repeating crime upon release.
2.      Retribution/Punishment (Moral Approach)
3.      Rehabilitation
4.      Condemnation (of given behavior)
Constitutional Issues:  
A.    Proportionality Principle: 8th Amendment: no “cruel and unusual punishment”. Seriousness of Punishment should match the Seriousness of the Crime – otherwise Judicial System losses legitimacy. (Protections can be Substantive [statutory revisions] or Procedural [safeguards]).
1.      Death Penalty: Special punishment since so serious and irreversible.
a.Interpretations of “cruel and unusual”
                          i.            “Evolving standards of decency” vs. historical analysis.
                          i.            Furman v. GA: cannot make DP mandatory punishment for crime.
                          i.             Roper v. Simmons: DP of minors (> 18 years of age) unconstitutional.
                        ii.            Kennedy: It imposes Cruel and Unusual Punishment because minors are less Culpable than adults because they cannot comprehend the consequences of their actions.
                      iii.            O’Connor (Con.) bright-line age test (>18) does not address issue appropriately. Some persons mature more quickly than others. (Criticism – inconsistent results from D to D.)
                      iv.            Scalia (Dis.) undermines 5th amendments faith in Jury’s role.
2.      Imprisonment: “Life without Parole” cases
a.Harmelin v. Mich:
                          i.            Life without parole for 1st offense drug charge. (Is this Proportional?)
                        ii.            Scalia (Plur.) Proportionality Principle only applies to DP cases. States through political processes enact statutes which represent the community’s stance.
                      iii.            Kennedy (Con.) 8th only concerned with non-DP cases when penalty “grossly disproportionate” to crime. Indirect effect of drugs serious so conviction valid.
                      iv.            White (Dis.) Life w/o parole is most serious offense in Mich. Should be same review standard as DP. Minorities adversely affected by pol. process and crim. law.
B.     “Legality Principle”: (i) cannot prosecute retroactively (“ex post facto”- D’s act, then legis. Criminalizes act.) and statutes (ii) cannot be vague/incomprehensible to a reasonable person since deprives the D of notice and a “Fair Warning” (goes to SOM requirement) which violates Due Process Clause (5th amend.)
1.      Vagueness:
a.Chicago v. Morales:
                          i.            Chicago statute criminalized “gang members” (not-defined) from “loitering” (to remain w/o apparent purpose). Unconstitutional.
                        ii.            Stevens (Plur.):
1.      (Analysis Facial or as Applied?) Facially.
2.      Statute “Unconstitutionally Vague” (voided for indefiniteness) because:
a.(1) No Notice (Reasonable-person can’t tell if violated or not [no SOM]); and
b.(2) Encourages Arbitrary Enforcement (Discretion left to officers who can in turn discriminate on when to pursue arrests.)
3.      Over-breathed: statute criminalizes too much conduct (which is innocent).
4.      Right to be free and move about.
                      iii.            Scalia (Dis.): Statutes requires D to disobey officer’s order (not arbitrary) and potential abuses are not a problem because officer’s required to attend training.
C.     Culpable Mental State Requirement: (SOM element constitutionally required – otherwise, the punishment would impose liability on a non-culpable party, who is not morally blameworthy since they could not avoid their actions and criminal liability.
1.      Lamert v. CA:
a.LA adopts “felony-reporting-requirement”
b.Douglas (Maj) – violates 5th amend. since No-Notice or chance to avoid criminal act. Generally, ignorance is not a defense, but when crimes involve “passive-nature” offenses (like presence w/in city), combined with intent of legislation (mere “Convenience” for cops to keep tabs on felons), violation of due process.
c.Frankfurter: statute’s purpose = public HSW. Under Police-Power, law is constitutional.
                          i.            Note: “Reporting-Requirements” Contemporary Use = Sexual Predator Registry.
2.      Montana v. Egelhoff:
a.banned evidence of “voluntary-intoxication” to disprove SOM.
b.Scalia (Plur) D’s do not have constitutionally absolute right to present all relevant evidence in their defense. To violate Due Process, statute must offend some principle of justice so rooted in our tradition that it is considered “fundamental”.
c.(Dis) limiting evidence relevant to D’s SOM violates the 5th & 14th amend. Due Process.
D.    Proof of Guilt to Juries: Burden of Proof – “Beyond a Reasonable Doubt”
1.      Due Process Requirement (Thresho

or status.
2.      Act Must be Voluntary:
a.An act is not voluntary if accused is unconscious or acting with automatism. (note: reflexive behavior is also not criminal).
                       i.            State v. Mercer:
1)      D shoots estranged wife, child and lover. D claims he “blacked out” during the entire event.
2)      (Issue- can D be held liable or does the claimed “black-out” make the act involuntary or lacking the requisite SOM of intent?)
3)      Issues:
a)Self-surving testimony (since all others dead) sufficient?
b)                  Time line of Consciousness (when does intent happen? Black-out?)
4)      Notes: If the person is not conscious, then the person cannot form the culpable mental state. The jury could have been told that if they found that Mercer was unconscious, then Mercer simply could not have had the requisite mental state. Therefore, with this element absent, Mercer must be acquitted.
5)      Sometimes unconsciousness will not preclude liability. 
1.      Unconsciousness from voluntary intoxication
2.      Unconsciousness from a fight that the person started
3.      Where a person knows he is prone to blackouts and he chooses to drive.
a.       Here the critical factor is notice / foreseeability.
b)                  Such unconsciousness may be a defense, but is not an absolute bar to criminal liability.
6)      Mercer might still be convicted of any crimes he committed before blacking out. He did not black out until after firing two shots (i.e. discharging a firearm in public).
                     ii.            Automaticism:  (unconscious or involuntary) (ex. sleepwalker stabbing wife case)
b.Other non-voluntary acts include
                       i.            (i) reflexive/convulsive acts,
                     ii.            (ii) acts the actor did not consciously determine (ex. A pushes B into C; B not liable to C); and
                   iii.            (iii) crimes based on status (see Robinson v. CA above).
B.     Omission/Failure to Act:  in the absence of a legal duty, failure to act is not criminal.
1.      (Note: if duty; can be excused by defense of “Practicality-of-Acting” [impracticable].)
2.      7–Exceptions to the No Liability Rule:
when actor (with requisite mens rea) breaches known duty which exists because