Crim Law Outline
I. Intro to Course
a. Crim Law is not the same as Crim Procedure
b. We will be studying:
i. Common law approach
1. How they are defined
ii. Model Penal Code
1. Drafted in 1960s to restate
2. Compare/Contrast with common law
iii. Statutes defining crimes
1. Where some of the definitions come from
2. How the Statutes & model penal code combine
c. Dressler will be the main course book, but we will also have some case studies approach
i. Case studies only tells us the facts and then we will go through and approach the law in that way
II. Elements of Criminal Law
a. Mens Rea – Guilty Mind
b. Actus Reus – Conduct
c. Causation
III. Theories of Punishment
a. General Deterrence
i. To deter others from doing or not doing a certain thing, send a message
b. Specific Deterrence
i. To keep someone who has committed a crime from doing it again
c. Incapacitation
i. If unable to deter, then you keep them from doing it again by keeping them in jail
d. Rehabilitation
i. Teach the person why they should not do something, cure them from the urge of committing
e. Restorative Justice
i. Focuses on the victim, restore the world to the way it would have been, if the crime had not have been committed
ii. Used mostly for minor offenses between victims and offenders
1. therapeutic for offender
2. restorative for the victim
f. Retributive Theory
i. Crime should be punished in accordance to the consequences of the action, regardless of the benefit of society
ii. Punished only to the degree to the action that was performed
iii. “just desserts”
1. punish them a certain amount because it reflects:
a. wrongfulness of act
b. history, pressure, frequency of the act, circumstances
2. this is the right amount of punishment… eye-for-eye type approach
3. You look back at the crime, not the future benefits from punishment
g. Expressive theory (shaming)
i. Designed to express the condemnation for the conduct/offense
ii. Scarlett letter approach
iii. Stocks in the past – public humiliation
iv. Similar to retributive, in that punishment is supposed to fit/be equal to the conduct
h. Utilitarian Theory
i. Consider the amount of lives, amount of suffering if the person dies, etc.
ii. “Consequential Approach” – means to an end
iii. Cost/Benefit analysis of calculating the action
iv. Can be applied in a number of ways
1. ex ante- don’t know what will happen
2. ex post- fit the circumstances to the situation and evaluate afterwards
i. The two views Retributive and Utilitarian clash as to whether
i. the act can be justified
ii. whether it should be punished
j. However, sometimes they work together
i. Blending of the approach
k. Kantian analysis
i. A person should never be treated as a means to an end à if you treat the person as such, then morally wrong and cannot be justified
l. Queen v. Dudley & Stephens (1884) – Sailors stranded out at sea were starving and decided to kill and eat the 17 yr old cabin boy. No lots were drawn, and instead the Captain chose who would be killed (under American law at the time, lots would have been required). Ds were charged with murder although they argued necessity under the circumstances. Captain owed a duty to care to the crew, and as such the duty could have
i. What actually did happen?
1. special verdict from the jury with a finding of guilty of murder by the judge (both sentenced to death)
2. Sentence commuted to 6 months
m. People v. Du (1991) – Store clerk shot a shoplifter in the back of the head as the shoplifter was leaving the store after an altercation with the store clerk. During the sentencing, the judge had to consider various factors
i. factors for determining the punishment:
1. protect society (general deterrence, and incapacitation)
2. punish the D for committing a crime (just desserts)
3. living a law abiding life (specific deterrence)
4. deter others (general deterrence)
5. isolate the D so she cannot commit again (incapacitation)
6. restitution (restorative)
7. to seek uniformity in sentencing (retributivist, utilitarian)
ii. Sentencing
1. What was the result? Was it right?
a. Given the circumstances Friedlander thought it was right
n. Themes of Utilitarianism vs. Retributivism, etc. will continue to occur throughout the semester and impact the way the judges apply Mens Rea & Actus Reus
IV. Actus Reus
a. Why punish only acts and not thoughts?
i. How do you KNOW what is being thought
ii. Some thoughts never actually become actions
iii. Bad thoughts don’t produce the same social harm as actions
iv. “no harm, no foul”
1. under both main theories
v. policy reasons of being unable to have the resources to punish the thoughts
vi. Freedom of speech/THOUGHT (implicit in speech), so long as they don’t hurt anyone
vii. Some thoughts are involuntary, so why hold them responsible for that which they have no control
viii. Double jeopardy – can’t be twice punished for the same crime (if you take a thought several times, how do you count it?)
ix. We do care about thoughts, but only after the fact that they have been convicted of a crime (especially when considering thoughts of a similar crime)
x. Conspiracy to commit an act can be viewed as a crime, especially when there is some overt act in furtherance of their conspiracy
b. The act requirement, external manifestation
i. Conduct – driving under the influence
ii. Result – murder
iii. MUST be VOLUNTARY
1. Absence of volition means there is NO actus reus
2. must consider where along the spectrum of involuntary/voluntary the act resides
a. sleepwalking
3. automatism does not mean
iv. Martin v. State (1944) – man that was drunk was taken to the highway and then charged with public drunkenness after the police moved him out onto the road and then charged him with the crime
1. Principle
a. Being forced to act without your will, will not qualify as a criminal act, no actus reus
v. State v. Utter (1971) – a guy that was militarily trained was drunk and when his son came home, stabbed his son. The father did not remember the act and claimed it was a conditioned response to the military training. He claimed it was automatism. Court did not agree because there was no proof/evidence as to what happened.
1. Principles
a. Where drugs or other substances create an “unconscious” state, the act of engaging in imbibing substitutes for the actual acts that happen during the “unconscious” state.
2. Thoughts
a. What about the fact that the guy is actually saying there is no proof that it was voluntary?
b. If what you are doing is completely unpredictable – e.g. kicking someone out the window while you are drunk, does it hold that the action could be reasonably predicted after he gets drunk
c. Was he on notice from the other two attacks that resulted in death? He knew that he had this condition and should have gotten help, but then did not.
d. Was the alcohol actually a treatment for the conditioned response by “slowing” his reflexes? Hehehehe
e. Why do you think he wanted to claim involuntary as opposed t
uld infer a person intends the natural and probable consequences of their actions.
2. Intent can be inferred from the surrounding circumstances: offender’s words, weapon used, for of blow.
e. Intent:
i. If a person sets a bomb to kill one person in a building where large collateral damage would occur, and it was foreseeable damage, the jury could infer that the natural & probable consequences of action were intended.
ii. Intent usually encompasses both conscious objective and what is known to be likely to occur. Purpose on the other hand, is the conscious objective ONLY.
iii. General Intent – Mens Rea with which you have to commit the crime (mental state with which you commit the actus reus)
iv. Specific Intent – A special mental element which is required above and beyond any mental state required with respect to the actus reus of the crime. Any time it is required to have more than just intent for the engaged-in conduct, it is specific intent.
1. Must have some future intent by the actor
a. “with intent to sell”
2. May require proof of special motive or purpose for committing actus reus
a. “with intent to cause humiliation”
3. Proof of actors awareness of attendant circumstances
a. “known to be a certain age”
v. When a statute is unclear with respect to the elements of the crime
vi. The Sup. Ct. has said that there are limitations to the ability of Congress to criminalize conduct, especially when the conduct is innocent, and the attendant circumstance makes the act criminal. à bigamy issue
f. Mens Rea under Model Penal Code:
i. Purposely
1. Purpose or objective of the conduct is known and desired
2. Draws distinction between Intent and Knowledge
ii. Knowingly
1. Aware that result was practically certain to follow from the conduct
iii. Recklessly
1. Aware of a substantial and unjustifiable risk of the consequence of conduct
iv. Negligently
1. Unaware that the conduct will cause the substantial and unjustifiable risk of which they ought to be aware
v. Biggest difference between MPC and CL
1. Strict Liability is disfavored for crimes that carry serious consequences for that crime (MPC 2.02(3)
a. MPC will infer that if the statute is vague, then it will read in the culpability requirement
2. Essentially the minimum culpability requirement for EACH element
a. If there is nothing in the statute, then minimum is recklessness
b. E.g. Robbery: serious bodily injury during the course of a theft.
i. Does it matter if the injury is negligent?
ii. What if we think the thief was negligent in his actions? – MPC does not state, therefore causing an injury is a material element, thus you must READ it into the crime, and there must be a minimum of recklessness for there to be strict liability
3. If a crime is a strict liability crime, then all material elements must be at least reckless.
