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Criminal Law
University of Georgia School of Law
Hashimoto, Erica J.

(Fall 2009)
I.                    What are Crimes? What’s Criminal Law?
a.       Principle of Legality—a person may not be prosecuted under a criminal law that hasn’t been previously punished. Condemns judicial crime creation. The requirement of previously defined conduct.
i.         Constitutionally mandated (The Due Process Clauses of the 5th and 14th Amendments prohibit enforcement of statutes defining crimes if those statutes are impermissibly vague.)
ii.       Due Process
1.                   General Rule- Criminal Statute Must be Precise; Cts. are prohibited from retroactively enlarging the scope of a criminal law
2.                   POLICY: Judicial enlarging results in retroactive criminalization and punishment. Since it’s the modern role of legislatures to enact criminal laws, then judicial enlargement exceeds the modern authority of the judiciary.
3.                   Rationale
a.                   due process rule serves in part to assure that persons can tell, by examination of the statutes, whether the conduct anticipated will be criminal; thus it assures notice.
b.                   It also and perhaps more importantly requires that statutes be sufficiently precise to discourage arbitrary enforcement.
iii.     Fair Notice Rule: person may not be punished for a crime unless it’s clear that a person of ordinary intelligence could understand it’s meaning
iv.      POLICY:
1.                   Ex Post Facto: legislature can’t enact laws that punish conduct that was lawful at the time of its commission, or that increase punishment for act committed before the law took place. Prohibits retroactive legislation and legislative expansion of existing statutes
2.                   It’s morally unjust to punish a person whose conduct was lawful when he acted, b/c he didn’t choose to violate the law in that specific way
3.                   A law can’t have its desired deterrent effect unless people are put on notice of the illegality of their contemplated conduct.
4.                   Permits a G to punish its enemies.
v.       Constitutional Foundations:
1.                   Both the ex post facto clause of Constitution and due process clause “safeguard common interests—in particular, interests in fundamental fairness (through notice and fair warning) and the prevention of the arbitrary and vindictive use of the laws.” Rogers v. Tenn
vi.     Keeler v. Superior Ct.: p. 91, fetus killing
1.                   D beats pregnant woman, knowing she is pregnant, with intent to kill fetus, and kills fetus
2.                   D charged under California §187 – “murder is the unlawful killing of a human being, with malice aforethought”
a.                   D argues that Cts. commonly didn’t include fetuses in definition of “human being”
b.                   G recommended that there be judicial enlargement of §187, Ct. agrees, but denies applying enlarged reading to this case b/c would deny Keeler due process of the law
3.                   distinct from People v. Chavez (previous California decision that would’ve provided fair notice that treated fetus during birthing process as human being) – fetus in Chavez was going through birth process. Distinction means this case wouldn’t constitute fair notice
4.                California later changed statute to include human being “or fetus”
vii.    Bouie v. City of Columbia: p. 96, black men charged with trespass
1.                   2 black Americans charged with criminal trespass when refused to leave upon demand, no notices posted stipulating whites only
2.                   SC S. Ct. found Ds guilty of trespass, but US S. Ct. overruled b/c Ds not given fair notice
3.                   **Note – in the future, Cts. can convict Ds for not leaving when asked b/c Bouie acts as fair notice (b/c on South Carolina books)
II.                  The “Void for Vagueness” Doctrine and Rule of Lenity
a.       when a penal statute establishing a requirement or punishment doesn’t specify what’s required or what conduct is punishable; therefore, it’s void b/c violative of due process. Forbids wholesale legislative delegation of lawmaking authority to the Cts..
b.       unduly vague statutes are unconstitutional b/c –
i.         laws give person of ordinary intelligence reasonable opportunity to know what’s prohibited
ii.        if arbitrary and discriminatory enforcement is to be prevented, laws must provide explicit standards for those who apply them
iii.      vague statutes inhibit exercise of 1st amendment freedoms by causing people to unduly restrict their behavior
c.        unconstitutionally vague – men of average intelligence must guess at meaning and differ to application; violates Due Process and Fair Notice
i.         typically if a statute has been around for a long time, void for vagueness will work itself out
ii.        In re Banks: p. 101, “Peeping Tom” statute case
1.                   trial Ct. found “Peeping Tom” statute too vague, therefore unconstitutional, also broad
a.                   problem with statutes being too broad – gives lack of fair notice and therefore people may alter behavior (even if innocent) as not to break law
2.                   S.Ct. ended up ruling statute wasn’t too vague or too broad b/c Bivens and Banks (previous NC decisions) defined “peep” and took vagueness out of “secrecy” respectively – therefore D had fair notice of meaning of statute
iii.      City of Chicago v. Morales: p. 109, gang loitering statute case
1.                   Ct. held that statute was too vague: no standard of conduct specified.
2.                   Arbitrary enforcement- How long must loiterers remain apart? How far must they move?
3.                   Ct. also held that it afforded too much discretion to the police
d.       Strict Construction/Rule of Lenity—requirement that judicial resolution of residual uncertainty in the meaning of penal statutes be biased in favor of the accused. Lenity doctrine is often not applied today but only as a tiebreaker.
i.         Ct. should pick interpretation of law that leans toward D (strictly construe statutes)
ii.        Only comes up in helpful way if Ct. is split on interpretation of law
III.               Understanding and Applying Statutory Interpretation:
a.       The intent of the legislature controls the interpretation of a statute.
i.                  Must look at:
1.                    Legislative history of an act and the circumstances surrounding its adoption.
2.                   Earlier statutes on the same subject.
3.                   The common law as it was understood at the time of the enactment of the statute.
4.                   Previous interpretations of the same or similar statutes.
b.       Words of a statute are not to be deemed merely redundant if they can reasonably be construed so as to add something to the statute in harmony with the purpose. i.e. secretly (wrongful intent) and peeping (look cautiously or slyly.)
c.        Rule: where a statute is susceptible to 2 interpretations—one constitutional and one unconstitutional—the Ct. should adopt the interpretation resulting in finding constitutionality.
d.       Rule: the doctrine of overbreadth won’t be invoked when a limiting construction has been or could be placed on the challenged statute.
e.        United States v. Foster: p. 116, firearm in truck bed
i.                  D was charged with “carrying” a firearm in relation to drug trafficking when it was found underneath floorboard of his car
ii.                 2 definitions of “carrying,” one broad, one narrow.
iii.               Ct. ruled for D and adopted narrower definition of “carry”
iv.               lesson to take – study language of statutes and be prepared to argue all meanings and to show why your definition of the statute is right
IV.                Utilitarian and Retributive Theories:TO KNOW FROM THIS SECTION – understand difference between utilitarian and retributive theories, AND be able to recognize when they come up and separate them out in your head
a.       Utilitarianism: want what is best for society and absence of pain
                                                               i.      Believes justification lies in the useful purposes that punishment serves; punishment justified on the basis of the supposed benefits that will accrue from its imposition (forward looking)
                                                              ii.      Justifies punishment as bringing out the greatest good for society- good outweighs the harm.
                                                            iii.      The purpose of all laws is to maximize the net happiness of society. Cost-benefit analysis.
                                                            iv.      Structure a scheme of punishment that will prevent the most crime
                                                             v.      The punishment is cost effective if it’s preventing more crime as opposed to imposing the punishment
                                                            vi.      Threat of punishment will only deter if the punishment is followed through
                                                          vii.      Whether an act or social practice is morally desirable depends upon whether it p

mistakes (doesn’t exist)
d.       The Queen v. Dudley and Stephens:p. 48, lost at sea and eat man
i.         four men get stuck out at sea; Dudley and Stephens kill the young boy and eat him (without his consent) to survive; Ds charged with murder
ii.       G argues – Ds should be punished for killing another without his consent (retributive)
1.                   killing could also be illogical b/c don’t know at what point will be rescued
2.                   also utilitarian argument – shouldn’t let Ds go free b/c will show others that they may kill in time of “necessity” – slippery slope
iii.     Ds argue – killing one person saved the other three (utilitarian)
1.                   general deterrence? – no – no one can put themselves in that situation
2.                   individual deterrence? – no­ – men probably won’t go to sea anymore
3.                   incarceration? – no – Ds don’t want to eat other people, not further danger
4.                   reform? – no – was one time act by Ds in time of necessity
V.                  What’s the MPC and why do we care?
a.       why “model”? – people who made it wanted all states to adopt it in full or in part
b.       why “penal”? – intended to provide criminal acts that could be punished
c.        why “code”? – intended to construct a rational system of criminal law
d.       benefits of MPC as compared to previous common law (from Dubar, pgs. 9-10)
i.         more legislative – reinforces due process and fair notice; more democratic b/c the legislature is elected and they are the ones making the laws
ii.       comprehensive – covers everything and leaves little to chance
iii.     code – rational system of criminal law that has coherent scheme
iv.     pragmatic and practical
e.        1.12(1) – G must prove each element of offense beyond a reasonable doubt, p. 978
f.        1.13 – general definitions of the MPC, p. 979-980
VI.                What’s in a crime? The Actus Reus (“Guilty Act”) Requirement
a.       actus reus – physical/external component of crime; typically includes conduct and harmful result
i.         components of actus reus –
1.                   voluntary act (generally the conduct element)
2.                   attendant circumstances – condition that must be present, in conjunction with prohibited conduct or result, in order to constitute a crime
a.                   need not have been caused by D’s conduct
3.                   (social) harm resulting from the conduct (generally the result element)
4.                   must prove D made some conscious movement and movement was volitional
b.       Result crime—offense seeks to prevent or punish a harmful result; i.e. Murder
c.        Conduct crime—offense punishes conduct, and no bad result is required to be guilty of such an offense; i.e. DUI
d.       Social Harm: : the destruction of, the injury to, or the endangerment of, some socially valuable interest. What a person is being punished for in a result crime; loss suffered from murder or other violent crime is experienced by immediate victim, but also by society (including community’s loss of sense of security)
i.         General Rule: Not guilty of an offense unless the voluntary act/omission causes social harm
ii.        A crime results in a social harm. A tort doesn’t.
iii.      The loss suffered from a murder or other violent crime is experienced not only by the immediate victim, but also by society.
iv.      There is intangible harm resulting from any crime, including a community’s loss of a sense of security.
v.       Is there social harm when a person commits a conduct crime?
1.                   There may be no tangible harm. The reason for the prohibition is to avoid the harm.