CRIMINAL LAW OUTLINE Professor Seigel, Fall 2007
I. TYPES OF ARGUMENT/LEGAL REASONING
a. In addition, we use argumentation and rhetoric outside strictly legal confines to persuade the decision-maker to interpret the law our way. The types of arguments we use include (but are not limited to):
i. Precedent
1. Counter-precedent
2. Distinguishing precedent (analogy doesn’t work here)
3. Dictum- language from an opinion that is not part of the holding
ii. Deontological – argument from first principles
iii. Analogy – argument from example
iv. Teleological (note spelling) – argument based on consequences (also called consequential argument for obvious reasons). Some teleological arguments include:
1. Utilitarian arguments – the decision should be made to obtain the greatest good for the greatest number.
2. Slippery slope – the decision should be made to prevent society (precedent) from moving in a harmful direction
3. Floodgates – the decision should be made to avoid opening up a Pandora’s box, a flood of bad things that could happen
v. Anecdote – argument based upon a (hopefully persuasive) story
vi. Empirical – argument based upon scientific, usually statistical, evidence
vii. Deductive arguments: If X and if Y, then Z
viii. Inductive arguments: arguments from experience
ix. Appeals to emotion, such as fear or sympathy
x. Ad hominem attacks – attacks on the source of the argument
II. THEORIES OF PUNISHMENT (p. 79) – two broad categories)
a. Retributive – punishment is justified because people deserve it; backward-looking
i. Kant – deontological arguments (p. 80)
1. Man cannot be used as a means to an end; he must be punished for himself and not for greater societal good.
2. Punishment and is moral and required for justice.
ii. Others (p. 81)
1. The moral culpability of an offender is necessary and sufficient to impose liability; it also gives society a duty to punish (Moore 81).
2. Punishment is reasonable and just because it restores the social balance of benefits and burdens—principle of fairness (Morris 82).
3. Punishment expresses social hated of criminals.
iii. Criticism
1. Gentleman’s club picture of society—does everyone actually receive societal benefits? (Murphy 83).
2. How does the criminal’s suffering pay anything back to society?
iv. Modern social functions of retribution
1. Shift from justice of return of suffering to the value of authoritative expression of moral condemnation (Hart 89).
2. Punishment is a symbol of societal ban of crime and it serves to heal the wounds inflicted on common sentiments (Durkheim 90).
b. Utilitarian – justification lies in the useful purposes that punishment serves; forward-looking
i. Deterrence (p. 92)
1. Pain and pleasure valuation forms the basis for action, even in passion (Betham 92).
2. There are 3 prerequisite conditions for deterrence to be effective (Robinson 93):
a. Potential offender must know the rule
b. Cost-benefit analysis
c. Must be willing and able to bring such knowledge to bear on his conduct.
3. Rational-actor model – criminals calculate
ii. Rehabilitation (p. 97)
1. Makes criminals safe to return to the streets
2. Enables them to lead flourishing lives
3. Criticisms:
a. Its effectiveness is questionable
b. It allocates scare societal resources to the least deserving
c. Recasting punishment as “treatment” à moral blindness
iii. Incapacitation (p. 101)
1. Prisons are designed to restrain those under their control.
2. They reduce crime by keeping criminals off the streets
3. Target: incapacitate recidivists/ violent offenders
4. Criticism:
a. The amount of crime prevented is probably less than we think
b. Some prisoners are more likely to be recidivist than others
c. Racial issues
d. Punishes people on the prediction of their future acts
c. Cases
i. Regina v. Dudley & Stevens
III. Culpability
a. Elements of a Crime, MPC § 1.13(9)
i. Such conduct [actus reus], or
1. Actus reus – voluntary culpable conduct prohibited by law
ii. Such attendant circumstances, or
1. Language of statute that is describing the circumstances that have to exist before the defendant can be found guilty
iii. Such a result (however, result is not always necessary; murder has the result element of death, but conspiracy has no result element) of conduct as
1. Establishes the required kind of culpability [mens rea]; or
2. Negatives an excuse or justification for such conduct; or
3. Negatives a defense under the statute of limitations; or
4. Establishes jurisdiction or venue—prosecution has the burden of bring the charge in the proper court
iv. Mens rea is a special element; requirement of culpability, MPC §2.02
1. Determined by statute—if not there, read in the minimum of recklessness
2. Levels of mens rea
a. Purpose
· Conscious object to achieve result
· Only needs one
· Only rarely does the law require purpose for mens rea
no actus reus àso not guilty of crime. Under that public drunkenness statute, “appearance” was presupposed to mean voluntary movement.
a. This defense only refers to whether defendant is conscious or moves with volition. It does not apply to one who was forced to rob a bank at gunpoint—this is the separate issue of coercion.
b. NOTES
· MPC §2.01(2): Involuntary Acts
1. Reflex or Convulsion
2. Bodily movement during unconscious (People v. Newton) or sleep (People v. Cogdon – defendant killed daughter b/c of a dream while sleepwalking)
3. Hypnosis
4. Other non-habitual / non-conscious bodily movements (Martin v. State)
· Voluntary Actions?
1. Habitual actions done without thought
2. Drug possession – most jurisdictions hold that possession is not an act unless the possessor knew of his control of the item for a sufficient period to have been able to terminate his possession
3. Epileptic reflexes – not voluntary, unless defendant knew of susceptibility and took the risk anyway (e.g. deciding to drive).
· MPC Approach: Although they may threaten harm to others or present a public safety problem, Involuntary movements do not present a problem of correction
· Non-actions vs. Excused actions
1. Non-actions: seizures, reflex movements, sleep walking
2. Excused actions: acts done mistakenly, accidentally, or compulsory
a. These may get mens rea defenses, but not actus reus defenses.
· Once we find the voluntary conduct (by moving back in time; e.g., decision to enter a crowded room was voluntary even though decision to pump into you was not), have to determine:
1. Is the voluntary act blameworthy?
2. Is the conduct such that the legislature intended to deter?
a. Does it fit the purposes of punishment?
iv. Omission/ Failure to act
1. Generally, one has no legal duty to help another facing harm.
a. Policy
· Doesn’t restrain personal liberty
· Personal safety concerns—don’t want attacker coming onto you
· Difficult to make a bright line
2. Some people, in certain relationships or circumstances, have a specific duty to act.
Pope v. State (p. 194)– Pope took in mentally ill Norris and her 3 mo. infant. She fed and looked after them both. One day, Norris claimed she was God, that Satan possessed her child; she beat the infant to death in front of Pope. Pope was charged with child abuse and not reporting the felony. Court held that while there may be a moral obligation to do something, no legal
