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Criminal Law
University of Dayton School of Law
Hoffmeister, Thaddeus

Criminal Law
Dean Hoffmeister
Fall 2015
Proof Beyond a Reasonable Doubt
–          Legal Standard in Criminal Law
o    Higher standard; exercises dominion over a person’s liberty
o    Attempt to instill faith in the criminal justice system
–          Government can try infinitely, unless acquitted
–          Attempt to limit the number of innocent people in prison
–          Owens v State –  Owens sitting in running car, drunk and passed out
o    Demonstrates various ways to meet the legal standard – circumstantial evidence
–          Presumption of innocence – State must prove guilt
“Nullum crimen sine lege, nulla poena sine lege”
–          -No crime without law, no punishment without law
o    Laws have to be understandable
o    Laws should not delegate basic policy matters to police, judges, and jurors
o    Rule of Lenity – Principle that shifts bias to the defendant if subject to multiple interpretations
o    Commonwealth v. Mochan-
§  “Vulgar and lewd” Conduct not prohibited by statute, but violated common law principles
o    Keeler v. Superior Court –
§  D killed a viable fetus, charged with murder 
§  ISSUE: Was viable fetus a human being for purposes of Section 187 (Statute)?
§  HOLD: No; As per CL, at time statute was created, fetus did not be subject of homicide unless born alive
§  Often, Laws must “catch up” to advancements in technology
Jurisdictional Problem – “courts cannot go so far as to create an offense by enlarging a statute, by inserting or deleting words, or by giving the terms used false or unusual meanings.”
You can't “rewrite the statute under the guise of construing it.”
Constitutional= violates due process because it does not give the D fair warning.
“[T]he terms of a penal statute creating a new offense must be sufficiently explicit to inform those who are subject to it what conduct on their part will render them liable to its penalties
In Re Banks 
·         ISSUE: Is the Peeping Tom Statute vague
ANALYSIS: Court says look at CL, Statutory history, & Prior judicial interpretations
Spying section has been limited to wrongful purposes. Thus, it is not overbroad. The word “secretly” keeps the statute from being vague.
·         Government cannot appeal an acquittal
·         Vague laws
o    May trap the innocent by not providing fair warning
o    leave interpretation up to law enforcement, judges, and juries to interpret
o    uncertain meanings inevitably lead citizens
Common Law
–          Starting point for all law
–          Jury
Standard for Conviction
Power or Right
Why call it nullification?
Pros and cons
–          Jury can consist of 6-12 people
o    A low number of jurors must be unanimous
o    Ohio requires all jurors to be unanimous
o    Only need 1 juror to hang jury – acquittal
Haven or Hell
Retributivists= punishment justified because D violated rules of society 
·         With very few exceptions, officers as well as inmates inside Lorton Central denounce retribution
·         The punishment shall be imposed on an offender in proportion to his offense
Utilitarian= justification lies in the useful purposes of punishment
Utilitarian Theories
General Deterrence= Knowledge that punishment will follow crime deters people from committing crimes
·         Greatest deterrent event?
o    Family visits – pressure from family biggest asset to deter future crime
Specific Deterrence= Imposition of punishment creates fear in the offender that if he repeats his act, he will punished again.
·         Specific deterrence fails miserably when prison becomes a refuge
o    People get too old to continue that lifestyle
o    Family
Incapacitation= prevent the offender from engaging in further criminal conduct
·         Originally prison’s sole purpose was to hold prisoners until trial or punishment
·         Holds prisoners to specifically prevent harm to others of the general public
·         Inmates NOT prevented from harming other inmates
Rehabilitation= punished so that D can be trained to not commit crimes
·         Acquisition of attitudes, values, habits, and skills by which an “enlightened” criminal comes to value himself as a member of society in which he can function productively and lawfully
o    Reintegration
As a defense attorney, must demonstrate facts contrary to purposes of felony sentencing.
·         Reasons why the sentence may not be justified by the offense
Status Crimes
·         Robinson v California
o    CA statute 11721 says you can't “be addicted to the use of narcotics.” Police found physical signs of drug use on D's arm and he admitted to using drugs. D admitted to drug use. The judge told the jury that the D could be convicted if he used drugs in LA county or was addicted to drugs while in the city of LA.
o    PRO: D appealing his misdemeanor conviction.
o    ISSUE: Is 11721 unconst?
o    HOLDING: Yes
§  Found to be a violation of 8th Amendment – Cruel and unusual punishment
o    ANALYSIS: State has broad authority to regulate drugs. However, you can't punish someone for an illness or for just being addicted to drugs while in the state. It violates the 8th Amendment.
·         Supreme Court hears this case based on claim of unconstitutionality
Powell v. Texas
·         FACTS: D, a chronic alcoholic, was convicted of TX statute 477 which prohibits being intoxicated in a public place. A psychiatrist testified that a “chronic alcoholic” is an “involuntary drinker.”
·         PRO: D convicted and fined $50. D appealed. 
·         ISSUE: Does the TX law violate the 8th Amendment?
·         HOLDING: No
·         ANALYSIS: 
o    Not being punished for his alcoholism
o    Being punished “for being in public while drunk on a particular occasion”
o    Being punished for offending moral and esthetic sensibilities and creating a health and safety hazard.
·         ANALYSIS: No better solution
–No limits on civil commitment
–Allows Ds to sober up 
–Don't want to define some sort of insanity test in

the gun at home.
o    D says the government has turned “carries” into “transport”
·         SCT: “”Carry” implies personal agency and some degree of possession, whereas “transport” does not have such a limited connotation and, in addition, implies the movement of goods in bulk over great distances.”
·         Biggest hurdle for the Gov't?
This might apply to someone who brings a gun on a bus, train or ship. SCT says it is unlikely to apply to those modes of transportation because of the phrase “during and in relation to”
Biggest hurdle for D?
–Under his theory this statute would not apply to certain weapons (rocket, grenade, bomb, etc..)?
·         Dissent: “”carry”” is a word commonly used to convey various messages.” Thus, “'where there is ambiguity in a criminal statute, doubts are resolved in favor of the defendant.'”
Bryan Garner 
“It is unlawful to [adverbial mens rea] [actus reus]. Violation of this provision is [class/grade of offense] [punishable by penalty].
Why is it okay to split an infinitive?
Actus Reus: Physical Act or external act (no universally accepted definition)
·         Attendant circumstance – constitute a part of the actus reus of an offense (intoxicated state)
Volitional Act (epilepsy, automatism, hypnotism, sleep)
Omission unless (statute, contract, special dependency, make situation worse)
Vicarious Liability (to be discussed later)
4 Requirements of Every Crime:
Actus Reus
Mens Rea
State v. Utter
·         FACTS: WWII combat vet kills son after drinking. D claims “conditional response” defense. Judge disallows.
·         PRO: D charged with 2nd Degree Murder but convicted of Manslaughter
·         ISSUE: Was it error to disallow defense?
·         HOLDING: No. D did not present sufficient evidence of his unconscious or automatistic state because his state was induced voluntarily
Omissions – Negative acts
In common law, there is no duty created to care for others, with limited exceptions.
People v. Beardsley
·         FACTS: Married man hanging out with mistress who overdoses and dies. D left her in the basement because his wife was coming home. 
·         PRO: D convicted of manslaughter. MI SCT overturned the conviction.
·         ISSUE: Did the D owe a duty to the V?
·         HOLDING: No. CL does not recognize a moral duty.
o    A moral obligation does not constitute a legal duty to care