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



Nature, Sources, and Limits of Criminal Law

Distinction between criminal and civil matter is the moral condemnation by the community that accompanies certain behavior – extreme disapproval.

This condemnation should be a guidepost for how we construct and enforce our criminal justice system.

American criminal law has English Common law roots.

No coherent statutory codes until the 1930s – a mess. Then there was a movement to create a singular code of crimes by the ALI.
Development of modern criminal code by the 1960s.

Limits/Constraints of Criminal Law:


Individual state legislature has primary responsibility for criminal justice – the federal government has limited capacity (or is supposed to have limited capacity) in this area.

Area of contention because this seems to be shifting – Congress has been increasing criminalizing behavior through legislature. It’s been creating law in disputed areas like drug crimes and immigration.

Separation of Powers

Both in state and federal governments.

Constitutional Constraints

Restrict certain types of laws from being made by state legislature.

Burdon of Proof

The presumption of innocence creates a burden of proof beyond a reasonable doubt – meaning, the defendant isn’t required to produce any evidence to prove innocence. The government bears the entire burden to convict and must overcome this presumption of innocence.
No constitutional requirement that a jury be told what “beyond a reasonable doubt” means – they don’t have to define it. It’s not qualitative and not quantitative.

No evidence that anyone saw or observed the defendant driving drunk. There’s also no forensic evidence showing he was intoxicated. There is only CIRCUMSTANTIAL evidence that may infer guilt – no direct evidence.

Vehicle was found idling in a private driveway – the government had to prove that he had previously been driving on a public highway to convict him.

The defendant is arguing on appeal that the government didn’t meet its burden of proof for beyond a reasonable doubt. The court on appeal views all the evidence in light most favorable to the GOVERNMENT to see if it’s reasonable that this conclusion might have been reached.

Overview of Criminal Justice Process
Codification and Interpretation of Statutory Elements

Legality Principle

A person may not be convicted and punished unless her conduct was defined as criminal by the legislature. Courts can’t create new or additional crimes – only the legislature.


Defendant was charged for making crude phone calls to a woman and accusing her of adultery. The defendant argued that the offense he was charged with did not constitute a misdemeanor at common law. Thus, the issue was whether any unlawful act which directly injures or tends to injure the public moral or health of the community is indictable.

Court said it was punishable under common law, without a statute. The dissent disagreed and said the court shouldn’t declare something a crime unless the legislature has previously recognized it as a crime.
Policy: the legislature should dictate what’s criminal and what’s not. The legislature should not delegate to the judiciary the ability to identify and define a crime. These catchall provisions violate the legality principle.


The issue was whether a viable fetus is a human being in regard to the statute. If not, the defendant can’t be convicted regardless of the conclusion scientific proof may lend – the legality principle would be violated. The government argues that “alive” because it could have survived on its own.
The court looks to legislative intent. In 1850 when the statute was written, “alive” meant to be born alive. Here the baby was never born.

However, you could argue that “quickening” back then meant viable.
Argument: you’re not really creating a new crime or law, you’re just interpreting a crime (murder), which is within its judicial authority.

The majority’s fallback reasoning: the lenity principle (see below). Also, due process requires fair notice. Even if the court were to re-interpret the statute, it wouldn’t apply to the defendant here – it would only apply prospectively.

Lenity Principle

If a statute can reasonably be interpreted favorable to the government and equally favorable to the defendant’s interest, it should be read in light more favorable to the defendant.

Void for Vagueness Doctrine

Gives lawmaking ability to the judiciary failing to narrowly define a crime. It requires a level of notice, specificity. Policy reasoning is that if individuals are given fair notice, they’ll be able to conform their behavior in socially desirable ways.
3 varieties of vagueness challenges:

Overbreadth: overly broad, encompasses innocent behavior as well, behavior that the legislature didn’t intend to criminalize.
Strict Vagueness Argument: the statute is so poorly written that it’s unintelligible. The terms are incomprehensible.
Fair Notice: even if the terms are intelligible, men of common knowledge would have to guess that the meaning and the scope of the statute and might differ in application. (MOST COMMON VARIENT)

Fair notice is not one where the legislature has to give actual notice of the meaning of every term to the public – it’s one of constructive meaning. The law is out there, available for scrutiny or review. The statute is only vague when, after consultation, an attorney would be unsure of the meaning of the statute.


Defendant was trying to argue that a Peeping Tom statute that criminalizes the secret peeping into a female’s room wi

lization. Kagan is trying to suggest that what’s really motivating the court to find this statute unconstitutional is the pathology of overcriminalization. To what pathology is she referring?

One version: legislatures are criminalizing behavior that isn’t serious – most people wouldn’t expect to be punished.

Excessive jail terms for the crimes committed
Shifting significant discretion to enforcers

The same conduct can fit multiple statutes that all have different contexts and punishments – multiplicity of statutes. We’ve seen a dramatic increase in the number of federal crimes, which is supposed to be left to the states.


General Framework for a Crime

All crimes consist of an act, some with a result, and its mental state.
Sometimes the act requirement is satisfied by the failure to act – an omission. Failure to pay your taxes, register a firearm, etc.
Statutes are required to have a voluntary act even if the terms don’t appear in the statute.

Elements to Prove for Conviction

Actus Reus

Voluntary Acts


An accusation of drunkenness cannot be established by proof that the accused, while in an intoxicated condition, was involuntarily and forcibly carried to that place by the arresting officer.

Being in that place was a voluntary act on his part.
You can’t be punished for mere thoughts or PURELY involuntary acts.


A veteran with PTSD (then referred to as a “conditioned response” stabbed his son after being surprised by him. The trial court viewed the evidence of conditioned response as synonymous with irresistible impulse, which isn’t a defense (along the same lines as insanity). The trial court viewed this as an effort to undermine the mens rea rather than the voluntary component of the crime.

Conditioned response can’t be offered for the mental state, but it may be offered in respect to a physical act.
Unconscious acts or automatism can be used to prove an act was involuntary.
Here, the defendant would have gotten off if it was a conditioned response, but he offered no evidence to prove there was a stimulus for the response.