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

Criminal Law Outline

I. Introduction: Setting the Stage
A. Nature, Sources, and Limits of the Criminal Law
i. Crime- a social harm that the law makes punishable; the breach of a legal duty treated as the subject matter of a criminal proceeding.
ii. Criminal law- the body of law defining offenses against the community at large, regulating how suspects are investigated, charged, and tried, and establishing punishments for convicted offenders. (found in statutes, case law in the state, and common law)
iii. English common law doctrines came to U.S., different jurisdictions took pieces, legislatures codified crimes.
1. Common law helps to interpret laws as legislatures were not writing on blank slates.
iv. Legislator’s role- defines crimes and fixes penalties. Legislatures deal with crime always in advance of commission (through threat of punishment to be imposed by other agencies. (limited by the Constitution). (Ex post facto clause- prohibits retroactive legislation and legislative expansion of existing statutes)
v. Judiciary-legislature makes rules for the majority the courts protect the minority, courts assign guilt in individual cases by interpreting statutes.
II. Principles of Punishment
A. Utilitarianism-
i. Basic principals
1. the purpose of all laws is to maximize the net happiness of society
2. Structure people’s incentives
a. P will avoid criminal activity if the perceived potential pain (punishment) outweighs the expected potential pleasure (criminal rewards)
b. An increase in likelihood of punishment will deter more effectively than an increase in the severity of the punishment.
ii. Forms
1. Deterrence- pass laws to make people afraid to commit crimes
a. Societal- society as a whole are scared to break the law if they see someone else punished (no follow through= no deterrence)
i. Ex: Martha Stewart
b. Specific/Individual- punish individual so they will not do it again.(Ex: laws that place higher penalties on repeat offenses)
i. Incapacitation- D’s imprisonment prevents him from committing crimes in the outside society during the period of segregation.
ii. Intimidation- D’s punishment reminds him that if he returns to a life of crime, he will experience more pain.
2. Rehabilitation- to prevent future crime reform the wrongdoer rather than secure compliance through the fear of punishment.
iii. Criticism- it may allow punishment of innocent people (ex: mob hypo)
B. Retributive Theory-
i. Basic Principles- punishment is justified when it is deserved (deserved when wrongdoer freely chooses to violate society’s rules)
ii. Differences between Utilitarianism and Retributivism
1. Retributivism looks backward. Utilitarianism looks forward (no punishment unless it provides overall social benefit.
2. Retributivism (P possess free will, justly blamed when violate rules). Utilitarianism (P hedonistic and rational calculators)
iii. Forms:
1. Positive
a. Assaultive- because the criminal has harmed society it is right for society to hurt him back
b. Protective- punishment as a means of restoring moral balance in society.
2. Negative- it is never justified to punish someone who did nothing wrong.
iv. Criticism- Retributive theory assumes everyone acts rationally (ex: mentally ill person, mother who steals for her children)
C. The Queen v. Dudley
i. Four people on raft
1. under retributive theory, they should be punished
2. utilitarianism, would not deter
III. Modern Role of Criminal Statutes
A. Principle of Legality (condemns judicial crime creation)
a. (substantive criminal law- the part of the law that creates, defines, and regulates the rights, duties, and power of parties)
ii. Requirement of Previously Defined Conduct
1. Keeler- “it is clear the courts cannot go so far as to create an offense by enlarging a statute, by inserting or deleting words, or by giving the terms used false or unusual meanings. Penal statutes will not be made to reach beyond their plain intent; they include only those offenses coming clearly within the import of their language” (92).
a. K prosecuted for killing his wife’s fetus V. at common law a fetus born dead was not a human being within def. of murder. The court may redefine term human being and apply it prospectively but not retrospectively.
b. Due Process of Law (constitutional limit on courts extending laws (retroactive judicial lawmaking))
i. Fair warning- all are entitled to be informed as to what the state commands or forbids.
ii. Bouie- if courts interpret a law in a way, no prosecution of current D, but can prosecute future D on this precedent.
iii. The Values of Statutory Clarity (“Void for Vagueness”: forbids wholesale legislative delegation of lawmaking authority to the courts)
1. Requirement of Definiteness- essential element of due process
2. a statute must give “sufficient warning that men may conduct themselves so as to avoid that which is forbidden”. A person is denied due process of law if she is convicted and punished under a statute that lacks such clarity.
3. A criminal law may be invalidated for vagueness for either of two independent reasons:
a. 1) it fails to provide the kind of notice that will enable ordinary people to understand what conduct it prohibits, and,
b. 2) it may authorize and even encourage arbitrary and discriminatory enforcement
4. In Re Banks “Criminal Statutes must be strictly construed. The intent of the legislature controls the interpretation of a statute. When the language of a statute is clear and unambiguous, there is no room for judicial construction and the courts must give the statute its plain and definitive meaning, BUT, where a statute is ambiguous or unclear in its meaning, resort must be had to judicial construction to ascertain the legislative will, and the courts will interpret the language to give effect to the legislative intent.” (99)
a. EX: “secretly peeping into room occupied by female person”
i. Boyfriend could be found guilty (although no criminal intent)
b. Fails #1.
5. Chicago
a. The definition of loiter is unclear and not the normal definition (not enough notice to people of what crime was (loitering), too much discretion to police to meet constitutional standards for definiteness and clarity (subjective standard)
b. Court said the ordinance left too much (almost absolute) discretion to police officers to determine what activities constituted loitering.
c. Fails #1 and #2.
d. Court said it may be unconstitutional if it was narrowed.
6. Lenity Doctrine (strict construction)- if a statute can reasonably be interpreted favorably either to the Government or to the individual, the statute must be read in the light favorable to the individual. (tie breaker if there truly is a tie)(only comes into play if a statute is ambiguous and every possible means of interpretation has been used and the court still cannot determine Congress’s intention)
a. MPC- no lenity principle, statutes should be construed according to their fair imports and ambiguities be resolved in a means that furthers the purpose of the Code and the purpose of the specific law in question.
B. Statutory Interpretation
i. Foster (“carry”)- look to

nt so there is no crime, but insanity will still get you civilly or criminally committed.
2. An insanity plea puts the burden of proof on the defendant, automatic response (automatism) defense burden is on the state.
v. Possession as an act- (MPC) (requires purposely or knowingly mens rea)- if the possessor knowingly procured or received the thing possessed or was aware of his control thereof for a sufficient period to have been able to terminate his possession. The defendant must be aware of his possession of the object but need not be aware of its illegality.
vi. MPC Voluntary Act
1. No person may be convicted of a crime in the absence of conduct that “includes a voluntary act or the omission to perform an act which he is physically capable” (§ 2.01 (1))
a. Burdens is on the prosecution to persuade the factfinder beyond a reasonable doubt of the existence of a voluntary act (§ 1.12 (1))
2. Def of ACT: “bodily movement whether voluntary or involuntary” (§ 1.13 (2))
3. Ex of involuntary acts:
a. Reflexes
b. Convulsions
c. Conduct during unconsciousness, sleep, or hypnosis
d. Any conduct that is not a product of the effort or determination of the actor either conscious or habitual.
4. Possession is an Act:
a. If the possessor either knowingly obtained the object possessed or knew she in control of it “for a sufficient period to have been able to terminate possession” (§ 2.01(4))
5. EXCEPTIONS
C. Omission as an “Act” (MPC- a failure to act)
i. 3 requirements
1. Legal duty to act.
a. Five situations that impose legal duty:
i. A statute imposes a duty
ii. Status relationship (parent/child, spouse)
1. Ex: a mother who allows her children to remain with a father she knows is abusing them is guilty of child abuse by omission.
2. Ex: parent’s failure to seek medical attention for a seriously ill child. (if parent had required mens rea)
iii. Contractual duty (ex: lifeguard or nurse)
1. Ex: doctor ordinary medical care to patient
2. Ex: babysitter to her ward
iv. Seclusion (voluntary assumption of care) (hypos footnote 122 pg. 104 of Understanding)
1. Ex. Someone is drowning and a bystander encourages a group to disperse saying that he will save the victim, and then doesn’t
a. Contrarily, if the bystander did not tell the group to disperse he was going to save the person, none of the bystanders would have a legal duty to act (unless one of the other situations was satisfied)
2. Ex: individual takes someone in to care for them, but then fails to provide critical care, may be held responsible for a death arising from this failure.
v. When a person creates a risk of harm
1. Ex: Believing B can swim, A pushes B into a pool. It becomes apparent B cannot swim, A takes no steps to rescue B. B drowns. A’s failure to attempt a rescue was an “act” and he can be held liable.
2. Knowledge of facts giving rise to duty