Select Page

Criminal Law
University of Dayton School of Law
Hagel, Thomas

Criminal Law Introduction
·         Criminal Law Defined
o        When law (statutory, common law, etc) prohibits a particular act for the good of society
o        Society has determined that particular act is “wrong” and therefore “wrongdoer” should be punished
o        Guilty à fine or jail
o        Compare with Torts
§         Liable à pay compensation to injured party, no jail
·         Historical Sources of Criminal Law
o        Common Law
§         Criminal Law (punishable acts) evolved from common law Torts (compensable acts)
§         Torts and Crimes split more than 800 years ago
o        Statute (Legislature)
§         Began by taking common law crimes (limited to seven) and expanding upon them
§         American legislature defined crimes b/c common law took too long to evolve
§         Still required judges to interpret crimes, hence maintained common law element (judicial interpretation)
o        Model Penal Code
§         Criminal law evolved differently (and uniquely) in each state
§         American Law institute developed Model Penal Code (MPC)
·         Book of general criminal law provisions, essentially a Restatements of Criminal Law
·         Not restating what law is, but really what law should be
§         Currently adopted in whole or in part in majority of states
·         Most adopt portions of MPC, along with their own interpretations of the law
o        Constitutional Law
·         Criminal Law today
o        Entirely statutory as to what constitutes a crime
§         “Unless prohibited by statute, it is not a crime”
§         Took all creation of criminal law away from courts and judges (no longer judge-created crimes)
o        Statute proscribes behavior, lists elements
§         Prosecution (gov’t) bears burden of proving all elements beyond reasonable doubt
o        Role of courts
§         Interpret the statute, apply the elements, determine guilt
·         Defenses and other criminal law issues (evidence)
o        Differ from the proscription of acts (statutory criminal law)
o        Common law defenses and other issues still prevail
§         Do not proscribe conduct, merely limitation on application of the statutory criminal law
·         Limitations on Criminal Law
o        Constitutional
o        Ex Post Facto
§         Cannot criminalize an act that was not a crime when the act was conducted
§         No retroactive criminal law
§         Must give fair warning as to what is a crime
o        Rule of Lenity (Canon of Construction)
§         Courts must “construe a penal statute as favorably to the Δ as the language and the circumstances of its application may reasonably permit”
o        Void for Vagueness
§         SCT has routinely struck down criminal laws that are so vague that ordinary people could not reasonably determine their meaning and application from the language of the statute
·         Based on “Due Process” Clause (for federal gov’t) and “Equal Protection” Clause (for states)
o        Burden of Proof
§         In a criminal case, the prosecution has the burden of proof
§         Standard is proof beyond a reasonable doubt
·         Types of Crimes (Big Picture)
o        Minimum Crime = Mental Element + Act
o        Typical Crime = Mental Element + Act + Result
§         Requires an act that ends in a specific result (murder requires dead body)
o        Strict Liability Crime = Act
§         Traffic violations need only prove the act (speeding) and mental element is

commit it
o        Specific Deterrence
·         When a threat of punishment would deter a specific, particular individual from committing an act
·         Sentence must deter this particular defendant from committing a future criminal act
o        General Deterrence
·         When a threat of punishment would deter society as a whole from committing the act
·         Punish this particular defendant to deter others from doing same thing
o        Requirements for Deterrence to work
·         Potential criminal must have notice of threat of punishment
·         Potential criminal (or society) must have accurately heard what the punishment might be (communicate it)
·         Threat of punishment must be credible
·         Potential criminal must think he will be captured (certainty of capture)
·         Potential criminal must believe he’ll be punished as threatened
·         Potential criminal must actually calculate the pains (punishment) vs. the pleasure (committing the act)
·         If criminal act is impulsive, deterrent is irrelevant (criminal doesn’t even think about punishment)
·         Incapacitation (remove this threat from society)
o        Defined (Utilitarianism: incapacitate to avoid possibility of committing crime)
·         Punishment (jail time) protects society by removing the threat from society and making it so the criminal can’t commit the crime again