Select Page

Criminal Law
University of Georgia School of Law
Dennis, Andrea L.

CRIMINAL LAW: Sources of criminal law include: state statutes (many of which are based on the Model Penal Code (MPC)), state common law, and federal statutes.
Fundamental principles: Individuals are entitled to certain constitutional protections in connection with the government’s power to make and enforce the criminal laws.
Types of offenses:
Felony: Maximum possible punishment is greater than or equal to one year in prison.
Misdemeanor: Maximum possible punishment is less than or equal to one year in prison.
Petty Offense/Violation: Punishable by fine only.
Constitutional Limits on Criminal Law
Due process: The government may not deprive any person of life, liberty, or property without due process of law
Proportional punishment: The government may not impose: (1) cruel and unusual punishment, (2) excessive bail, or (3) excessive fines.
Look to punishment to help determine legislative intent – if the statute only gives a “slap on the wrist,” the legislature likely decided the crime is not as serious.
Ex post facto laws: The government may not enact a law that retroactively (1) criminalizes conduct or (2) increases the punishment for a prior crime.
Bills of attainder: The government may not enact a law that declares an individual guilty or imposes punishment without a trial.
Criminal Trials – Proof of Guilt/Presumption of Innocence: The prosecutor must prove each element of the crime beyond a reasonable doubt.
Meaning: D does not necessarily have to provide any evidence to prove innocence – there is a presumption of innocence
Why “Beyond a Reasonable Doubt?” Notion that it is extremely wrongful to convict an innocent person, so we want the government to meet the highest burden possible in order to gain a conviction
Confusion: No constitutional requirement that juries be instructed what “beyond a reasonable doubt” means. Supreme Court has never defined “beyond a reasonable doubt”
Some courts have attempted to define it, but some of these definitions have been struck down as unconstitutional. Up to individual courts to decide whether or not they want to try to define it to the jury
Circumstantial Evidence: D’s can be convicted purely on circumstantial evidence as long as the “beyond a reasonable doubt” standard is met.
Owens v. State (p. 14; DWI case)
Michael Floyd police body camera video
Defendants Not Always Presumed Innocent: Once convicted, a D is no longer entitled to a presumption of innocence; evidence is instead viewed in light most favorable to the government. Owens v. State (p. 14; DWI case)
Criminal appeals are not de novo reviews of trial courts
If a D is found not guilty at trial, very rare that the government can appeal, and practically speaking it does not happen
Modern Role of Criminal Statutes: Legislatures enact criminal statutes, but how do we know if the statute is valid? How do we know what the statute means?
Legality Principle: An individual may not be convicted/punished for his conduct unless the conduct has been previously defined as criminal.
Common Law Offenses: State v. Mochan (p. 93; lewd phone calls to woman)
 Statute saying that not only specific statutorily created crimes but also common law crimes not listed in an Act are punishable was upheld by PA court in Mochan, but that is no longer the view taken by most states
Argument against “catch-all provisions” is that they violate the Legality Principle
No express statute making the behavior criminal, and because the legislature has law-making power, if they want to criminalize certain behavior, they should do so via express statute
Because legislature has law-making power, common law crimes should be phased out and instead be codified
Nearly all states have abolished common law offenses/”catch-all” provisions
Legislative Intent and the Legality Principle
If language of statute is unclear as to whether certain conduct is criminal, courts look to legislative intent to see if the drafters of the statute intended for the conduct in question to be criminal – if they did not, then a conviction would violate the Legality Principle because the conduct would not have been previously criminalized.
Keeler v. Superior Court (p. 97)
Man beats pregnant woman and kills her fetus, charged with (among other things) murder for killing the fetus. Statute says murder is the unlawful killing of a “human being” – up to court to decide if the fetus is a human being, not clear on the face of the statute, so court looks at legislative intent
Court determines that the drafters did NOT intend for “human being” to include fetuses for the purposes of the statute
State (unsuccessfully) argues
Killing an unborn fetus was a crime in 1850, but it was just a misdemeanor, so judiciary is not creating a “new crime” if they uphold the charge
Court says the legislature was attempting to codify the common law, and at common law in 1850 (when statute was drafted) a fetus could not be the victim of homicide unless it had been born alive
Not permissible to “enlarge the statute under the guise of interpretation”
Court also relies on Lenity Doctrine
Just like questions of fact, the defendant is entitled to the benefit of every reasonable doubt as to the true interpretation of words or the construction of language used in a statute.
Court also says that American Criminal Law is not subject to “gap filling”
Would be a violation of separation of powers – legislature’s job to write statutes and define crimes – “there are no common law crimes in California”
Court also says that even if they did accept the state’s definition of human being, it could only apply prospectively because of the constitutional prohibition on ex post facto laws
Fair notice issue – if an act was not criminal at the time it was performed, the defendant has not had fair notice (as required by Due Process) that would allow the defendant to conform his conduct – an “UNFORSEEABLE” judicial enlargement of a statute operates precisely as an ex post facto law
If the judicial enlargement of a criminal statute is FORSEEABLE, there is no Due Process violation
Look at other court decisions’ dicta about whether certain conduct is prohibited
Void-for-Vagueness Doctrine: Criminal statutes must meet a certain level of specificity so that 1) people can know what a crime is and conform their behavior and 2) statutes won’t be arbitrarily enforced
Statutes can be void for vagueness in 3 ways
Statute encompasses innocent behavior as well
Statute is so poorly written that pe

Statutes are interpreted so as not to render terms and provisions superfluous. Everything was put in for a reason, so everything needs to mean something.
Noscitur a Sociis
A word is known by the company it keeps
Ejusdem Generis
Where general words follow specific words, the general words continue to embrace only objects similar to the specifically enumerated ones
Expressio Unius
Inclusion of one term implies the exclusion of another
Yates v. United States (p. 122; fish thrown overboard, held not to be a tangible object under the Sarbanes Oxley Act)
Plurality looked at the placement of the statute (in legislation designed at regulating the financial sector), context of the word “tangible object” (follows record and document), also applied rule of lenity (20 year sentence for throwing fish overboard seems harsh, so the court resolved the ambiguity in the D’s favor)
Dissent looks more at the plain meaning of the term “tangible object,” said that context actually favored its interpretation of including fish, said the title of a statute should not limit the plain meaning of the text
Dissent thinks that the plurality’s opinion is driven by worries about over-criminalization.
 Abstract Elements of a Crime: Every crime requires these basic elements: (1) actus reus, (2) mens rea, (3) concurrence, and (4) causation. EACH ELEMENT must be proven beyond a reasonable doubt
Actus reus: A defendant must voluntarily: (1) commit an overt act or (2) fail to act when a legal obligation to act exists.
ACT: A voluntary act is a physical movement that the defendant controls.
Can be obvious (punch), hard to observe (perjury), unobserved (carrying a concealed weapon)
“Reus” – Result element required for some voluntary acts to be “completed”
Many crimes require a tangible result from the action (homicide – someone has to die), but many do not (DUI – conduct crime; Possession of narcotics – possession crime) – these are sometimes called “Victimless Crimes”
Voluntariness is Implied Martin v. State (p. 134; drunk man taken from home to public highway where he committed some other crimes)
Court held that D could not be convicted of “appearing in a public place while intoxicated” because the appearance (the act) was not voluntary (he was forcibly taken to the public place by police)
Whatever constitutes the “Act” element of the crime must be voluntary
Class Hypo: 15 year old boy told, at gunpoint, to cross the border from Mexico into US.
Even though he could defend on other grounds, he has satisfied the “actus reus” element of the crime: “Anyone found in U.S. without permission shall be punished”