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Criminal Law
University of Dayton School of Law
Shaw, Lori E.


1) Deterrence – reducing crime through the fear of punishment. ‘intimidation or terror of the law.” Specific or special deterrence aims to frighten the person actually punished. General deterrence aims at frightening potential offenders
2) Incapacitation – aims to deprive the criminal of the ability or opportunity to commit crime and tries to influence the criminal’s choice whether to do so.
3) Rehabilitation – seeks to prevent crime by changing the criminal so that he no longer desires to commit crime.
4) Retribution – punish because they deserve it. “just deserts” theory. Must exist an equality between the crime and the punishment.
5) Denunciation – express publicly society’s disapproval of blameworthy conduct. Educate society about and reinforce the norms reflected in criminal law.

· Legislatures make the law
· Executives enforce the law
· Judges apply the law

Judges originally formulate law based on a body of judicial opinions (common law)
Legislatures have supremacy in criminal law.

1) Textualist Approach – Letter of the law approach.
a. Look to the language. Plain meaning. This is right where they stop.
2) Intentionalist Approach – Follow the spirit of the law.
a. Even the intentionalist start by looking at the letter of the law.
b. Look to the legislatures intent.
i. Legislative history
ii. Circumstances surrounding the enactment (what happened?)
iii. Legislation as a whole (why was this piece enacted?)
3) Dynamic Statutory Interpretation – Step 1, 2, then 3
a. Understanding the text created in the past and applying it to a present problem.
i. The subsequent evolution of the statute and its present context, especially the ways in which the societal and legal environment of the statute has materially changed over time.
ii. Evolution perspective.


1) Actus Reus – conduct element in a criminal statute.
2) What is an act?
a. NY – a bodily movement
b. Utah – a bodily movement including speech
3) Status – Being v. Doing – cannot punish for a status.
a. A status tends to be permanent and unchangeable like race or sex. Homelessness has typically been treated as a condition because it can change at any moment if someone obtains a home.
b. Robinson v. Cali
1. Illegal to be addicted. “Arrested at anytime before he reforms.”
c. Powell v. Texas
1. Arrested for being drunk in public. (condition)

4) Voluntariness
M.P.C. 2.01 – Approach to Voluntariness
1. A person is not guilty of an offense unless his liability is based on conduct that includes a voluntary act or the omission to perform and act of which he is physically capable.
2. The following are not Voluntary acts
a. A reflex or convulsion
b. A bodily movement during unconsciousness or sleep
c. Conduct during hypnosis or resulting from hypnotic suggestion
d. A bodily movement that otherwise is not a product of the effort or determination of the actor, either conscious or habitual.

5) Time Framing
a. With defense you want a narrow time frame for killing conduct. (when the killing happened)
b. Prosecution you are going to want to prove that it was as soon as he got into the car. (getting into the car was intentional and they knew there was a risk)

6) Omission
a. Subject to a few exceptions, a person has no legal duty to act in order to prevent harm to another. The criminal law distinguishes between an act that affirmatively causes harm, and the failure of a bystander to take measures to prevent harm.
b. M.P.C. 2.01(3)
1. Liability for the commission of an offense may not be based on an omission unaccompanied by action unless:
a. The omission is expressly made sufficient by the law defining the offense (Deadbeat Parents Act); or
b. A duty to perform the omitted act is otherwise imposed by law.
i. Duty = (status, contract, creation of risk, voluntary assistance, statutory duty)
b. There is less for prosecution to prove with cases dealing with act rather than omission.

7) Possession
a. M.P.C. 2.01 (4)
Possession is an act, within the meaning of this Section, if the possessor knowingly procured or received the thing possessed or was aware of his control thereof for a sufficient period to have been able to terminate his possession.
b. Actual Possession – on someone’s person, in their clothing, or within their physical custody
c. Constructive Possession – exercises some sort of control over the item.

8) Vicarious Liability
a. This is where an employee acts, and the employer may get in trouble.
b. You wont find vicarious liability that gives jail time.
c. Vicarious liability in criminal law is the exception, not the rule.
d. MPC doesn’t recognize.

1) No mental state element required.
2) Absolute liability
3) MPC doesn’t recognize.


1) Mens Rea – guilty mind.
2) Purposely, knowingly, recklessly, and negligently


Attendant Circum.



Conscious object to engage in conduct

a. The statute or other enactment defining the offense is not known to the actor and has not been published or otherwise made reasonably available prior to the conduct alleged; or
b. He acts in reasonable reliance upon an official statement of the law afterward determining to be invalid or erroneous, contained in:
i. A statute or other enactment
ii. A judicial decision, opinion or judgment
iii. An administrative order or grant of permission; or
iv. An official interpretation of the public officer or body changed by law with responsibility for the interpretation, administration or enforcement of the law defining the offense.
5) Claim of right is a defense.


1) M.P.C. 2.02(7) – Requirement of knowledge is satisfied by knowledge of high probability.
a. When knowledge of the existence of a particular fact is an element of an offense, such knowledge is established if a person is aware of a high probability of its existence, unless he actually believes it does not exist.

1) Is the same as unconditional
2) “The inclusion of a conditional intern to harm within the definition of specific intent to harm was not only a well-established principle of common law, but also, and most importantly, comported with a reasonable interpretation of the legislative purpose of the statute.”

1) Must be self induced, otherwise it will be dismissed.
2) Historically, voluntary intoxication is no excuse. “One that voluntarily impairs is responsible for the consequences.”
3) Intoxication can negative a purposeful or knowing mental state.
4) A reckless mental state is a bit tougher to negative because the prosecution can still prevail if it can show that the defendant would have been aware of the risk had he or she been sober.
5) MPC 2.08 – Intoxication of the actor is not a defense unless it negatives an element of the offense.
a. When recklessness establishes an element of the offense, if the actor, due to self induced intoxication, is unaware of a risk of which he would have been aware had he been sober, such unawareness is immaterial.