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

A.      Utilitarianism.. 2
B.      Retributivism.. 2
C.      U vs. R.. 2
D.      Criticism.. 2
A.      Definition. 3
V.      MPC (2.01) – ACTUS Voluntary Act; Omission; Possession 4
VI.    MENS REUS (2.02) – Culpability. 5
A.      Is mens rea req’d at all for this crime?. 6
A.      Common Law.. 7
B.      MPC.. 7
A.      MPC + CL. 7
X.      CAUSATION.. 8
B.      Common Law :8
C.      MPC – Causation 2.03. 8
A.      Rule. 9
B.      Then classify ( murder, manslaughter or negligent homicide)9
XII. MURDER (Common law)10
A.      Common law, Generally:11
B.      Traditional Rule. 11
C.      No force/abolishing requirement (See MTS)11
D.      MPC RAPE 213.1. 12
A.      Justification. 12
B.      Excuse. 12
A.      Common Law (Peterson Standard)13
B.      MPC 3.04 – Self Defense. 13
A.      Common Law.. 14
B.      MPC 3.02. 14
XX.   DURESS – ex. 15
A.      Common law.. 15
B.      MPC – 2.09. 15
A.      Common Law.. 16
B.      MPC – 4.01. 16
XXII.         ATTEMPT.. 17
A.      Generally:17
B.      Common law :17
C.      MPC Attempt – 5.01. 18
A.      Common Law.. 19
B.      MPC – 5.02(1)19
XXIV.        CONSPIRACY.. 20
A.      Generally[Problem 3 pg 821]:20
B.      Common Law Conspiracy. 20
C.      MPC Conspiracy- 5.03. 21
A.      Generally. 22
B.      Common Law.. 22
C.      MPC Accomplice Liability 2.06. 23
A.      Result Crimes – 9. 24
B.      Actus Reus – 4. 24
C.      Mens Reus – 5. 24
D.      Causation – 8. 24
E.      Death – Mention. 24
F.      Inchoate Crimes. 24
G.      Accomplice Liability (3RD P) – 23. 24
H.      Defenses. 24
I.       State Merger Rules. 24
J.       Conclude!24
K.      Rape – 11.24
I.                    THEORIES OF PUNISHMENT
A.    Utilitarianism
a) Purpose of all law is to maximize the net happiness of society and minimize the amount of pain.
(1)General deterrence – when you punish one person for a crime in order to send a message to society. 
(2) Specific deterrence – when you deter person X by punishing person X
(a)       by Incapacitation – you keep the person off the streets or
(b)       by Intimidation – you make the person scared to do it again because they remember how unpleasant the experience was being punished the first time.
b)Rehabilitation – when you use the penal system to change the person such that they won’t want to do bad acts in the future; you diagnose the problem and then solve it. (ex. Drug court).
B.    Retributivism
a)All humans are rational actors and to the extent that we chose to break the law, punishment is justified when it is deserved
(1)Negative retribution – Wrong for society to punish someone who has not done wrong.
b)      Positive retribution – : you must punish guilty people, and you must never punish an innocent person. It is wrong for society to NOT punish someone who has done wrong
C.    U vs. R
a)Retributivism looks backward and justifies punishment solely based on the voluntary commission of a crime. In contrast, utilitarian’s look forward to justify punishment
b)      Premise of utilitarianism is that people are generally hedonistic and rational calculators, retributivists focus on their view that humans generally possess free will or free choice and, therefore may justly be blamed when the choose to violate society’s mores.
D.    Criticism
1.Criticisms of Utilitarianism:
a) it justifies using people only as a means to an end (i.e., the punished individual is an instrument for the improvement of society – ignores rights of wrongdoer.
(1)Response: humans have no immutable rights to be ignored. The right each member of society possesses is the right to have law used to benefit whole therefore wrongdoer actually benefits from society.
b)Utilitarianism can justify the punishment of a person know to be innocent of wrong doing.
(1)Do not debunk the theoretical possibility; however, Such acts will not benefit society as a whole and may cause more harm (loss of public respect for the crim. Justice system)
c) Criminals cannot be reformed
(1)Evidence shoes reform will work if society is prepared to commit the necessary resources to the process. (savings may even to relieved from prison system)
2.Criticisms of Retribution:
a) Intentional infliction of pain through punishment is senseless and even cruel when it does no good
(1)Some acts are right and wrong and deserve punishment regardless of the consequences.
b) Glorifies anger and legitimized hatred
(1)View applies only to assaultive from or retribution (note: we did not talk about assaultive form in class)
c) Retributivism is irrational because it is founded on emotions such as anger , rather than reason.
(1)Emotion has moral content. (anger demonstrates awareness the criminal activity has violated our rights and deserves punishment)
a) The principle of legality: “no crime without preexisting law[1]”.
b)Rule of Lenity – Courts must strictly construe penal statutes in order to avoid a violation of the due process rights of the accused.
c) Void for Vagueness: Vagueness may invalidate a criminal law for either of two independent reasons[2]        
(1) It may fail to provide warning of what is prohibited
(2) It may authorize and even encourage arbitrary and discriminatory enforcement. (Majority opinion)
d)Ignorance of law is never a defense[3]: Case law is on the books = fair notice and ∆ will be responsible for knowing the rule. (Not fair, but sufficient to provide constitutional notice)
e) Common Law
(1)Age of incapacity to commit crime 7
f) MPC
(1)Age of incapacity to commit crime 16.
III.               MENS REA COMMON LAW
1.Court requires malice for social harm. Regina
a)  Malice does not mean wicked in this sense.
(1)i . Purpose, Knowing, or Reckless
(2)ii . Must apply narrowly to the actual crime, cannot be broad so that any guilty aspect makes you guilty of all.
2.Transferred Intent-
a)  Mens rea is established if D tries to commit the act against V1 and instead commits against V2. Cannot claim he didn’t intend to ____ V2. The required guilty mind was still present regardless of the outcome. People v Conley (IL: swung bottle, missed and disfigured another) (146)
b)Intent (conscious object) not the same as knowledge (ex. Intends to burn Jack’s house so he will die, knowing Jill inside, hopes she gets out, one count intent)
c)  Must be the same type of harm intended to V1. (ex. Throwing rock at person, instead hits window, no intent)
d) If the social harm doubles unintentionally, only one intent. (ex. Shoot to kill X, end up killing X and Y, only intent for X)
3.Conditional purpose:
a)  Intent relates only to the purpose, not the conditional threat. (Give me the keys or I will shoot, intent to steal keys, not to shoot) (different from MPC)
4.Willful blindness
a) not satisfactory for knowing. Most jurisdictions will not convict for willful blindness. State v Nations (Missouri: knowingly encourages girl under 17, looked young but didn’t ask, didn’t know) (157)
5.Strict Liability:
a) Unless the statute has strict liability expressly stated or inferred, mens rea must be read into the statute. Staples v US (unregistered machine gun found in house, claims didn’t know, read in mens rea) (170)
b)a. Exceptions to Strict Liability
(1)Public Welfare Offense- statute must be regulatory in nature, regulating something dangerous
(2) Statutory Rape- Some states have mistake of age defense since knowledge is too hard to prove and reckless and negligent might not be right either. Garnett v State (MD: mentally challenged 20 told 13 girl was 16, strict liability confirmed) (178)
(3)To prove, Govt need not prove what was actually in the D head, only the circu

punish morale culpability.
A.     Is mens rea req’d at all for this crime?
1.Required in every crime, except:
a) Common Law
(1)Strict Liability: Statutory Rape: Statutory rape – sex w/ underage. Not recognized in Garnett
(2)Felony Murder (See Cali Statue)
(1)If strict (absolute) liability is imposed to any material element of an offense that does not constitute a crime, but a violation (punishable by fine or forfeiture) (MPC)
(2)MPC presumes recklessness for FMR.
2.Elemental v. Culpability approach
a) “Elemental” def. of mens rea (MAJ) (narrow): the specific state of mind called for in the offense (MPC).
b)“Culpability” def. (broad): moral blameworthiness; a generally guilty state of mind. (common law)
3.MPC applies elemental approach; (doesn’t use term mens rea.)
a) Rule – Not guilty unless acted “purposely, knowingly, recklessly or negligently,” w/ respect to each material element. MPC§2.02(1).
(1)Material if the element relates to the reason it’s a crime in the first place (paraphrased by Emanuel from MPC1.13(10)
b)Which level of culpability applies? Determined separately for each element. 
(1)Step A: If statue tells you:
(a)A single mens rea term – whatever it is—modifies each actus reas element of the offense, absent a contrary purpose of the legislature (i.e., placement of mens rea element) (MPC)
(b)apply to all the elements. Unless it is placed mid statue then use default (recklessness) for other elements. MPC 2.02(4)
(2)Step B: If statute is silent on whether it’s req’d:
(a) MPC: Presumethat it is req’d. Default to Recklessness[MPC2.02(4)] (b)Common Law: Consider Legislative intent:  (Morrisette)
(i)Read in mens rea if:
(ii) Statue is more/less codification of common law crime.
(iii)If statue is easy to violate innocently and/or imposes a stiff penalty[5] (c) Do not read in mens rea if
(i)The violation is in nature of neglect or inaction (no positive aggression)
(ii) No direct injury to person or property (mere danger of such)
(iii)Small penalty
(iv)No grave damage to D reputation
(v) Other elements have mens rea element but the one in question does not (i.e., location of mens-rea element preceding or post ceding a list of actus reus elements)
c) CL presumption is that a statute does not impose strict liability if it addresses a traditional common law crime or modern variant (Morissette)
d)If law states that negligence is required for material element then it is established if person acts recklessly… >knowingly>Purposefully 2.02(5)
e) If purpose is the mens rea level, that translates into knowledge for circumstance elements 2.02(2)(ii)
f) Willfully is interpreted to be knowingly 2.02(8)
4.If asked to apply figure out what Mens Rea is required for given statue.
a) X or Y are the only mens rea specified
See which mens rea is attached
[1] Keeler, killed fetus in preg. wife – no murder b/c fetus was not human as defined by statue
[2]Morales – gang loitering law was vague and held invalid
[3]In Re Banks – Peeping Tom
[4] UTTER v State Man kills son; claims conditioned response/drunk. D claims no voluntary act ->Murder! – voluntary inducement of unconsciousness.
[5] Staples – Man charged w/ violation of firearm statute. -> Although statute has no explicit M.R. req’t, court “reads in” M.R. of knowledge