CRIM OUTLINE – TOMKOVICZ – SPRING 17
I. Guilt Beyond Reasonable Doubt – BRD – req’d by DPC in © – 1970
A. Of every fact that is necessary to constitute the crime of which you are charged- Winship
1. Blackstone – better 10 guilty go free, than 1 innocent should suffer: outweighs CBA
B. Trouble if cts try to qualitatively or quantitatively describe; some give no explanation
1. Can’t put it on a numerical scale (McCulloch) and can’t qualify either (Cage)
2. CA penal code ok: not a mere possible doubt—jurors cannot say they feel an abiding
conviction, to a moral certainty, of the truth of the charge
3. Don’t want ‘no doubt’ b/c society shouldn’t be at a complete disadvantage
4. SCOTUS: “subj st of near certitude of the guilt of the accused” (Jackson)
C. Hg burden on appeal: if evidence so weak NO rational juror COULD find guilt
II. Justification of punishment (fine, probation, prison, death, stigma, other sanctions, etc)
A. Retributive: ppl deserve it; must be proportional to crime; social cohesion and fairness
1. Dudley/Stephens: necessity of kill ≠ legally justified not even to save 3 (ok by util std)
a. Only justification = self-defense but seems at odds w/ saving 3 instead of 1
b. CL says murder is always the greater of possible evils, but MPC = maybe not
c. Modern: Choice of evils defense; MPC 3.02(1)(a): harm avoided> harm caused
2. Wanting retribution doesn’t tell how much we should punish
B. Utilitarian: prevent future crimes- deterrence (gen/spec), incapacitation, rehabilitation
III. Defining Criminal Conduct – Elements of Just Punishment
A. Legality: no punishment w/o law; illegal at time of crime; no retroactivity/vagueness ©
1. Want to give warning and control discretion of police and prosecutors
B. Proportionality: Punishment should be proportional to severity of offense – 8th A ©
1. Similar crimes punished similarly – desert – which factors matter; how much deserved
C. Culpability: Fault/blameworthiness – don’t punish at all w/o this factor
IV. Culpable Conduct ACTUS REUS (AR) – Voluntary act is necessary element: must prove BRD
A. No one punishable for his thoughts alone; w/o act not enough culpability – liberty wins
1. Costly to prevent ppl from doing things they may not have done anyway
2. Hard to prove intent in your head, more minimal act=harder to prove intent
3. Might consider that verbalizing intent MIGHT be enough of an act
B. Need an actual act: bodily mvmt – MPC 1.13(2) and must be voluntary (Martin: PI)
1. CL: conscious/aware of & in control of act, MPC 2.01 (2): defines ‘not voluntary’
a. Can req D to prove a defense (usually at slightly lwr std)
b. Might be liable based on preceding/earlier voluntary act – MPC 2.01(1)
c. Might be conscious, but not voluntary; i.e. brain tumor violence
i. Don’t need correction, might have civil commitment BUT not for phys issues
d. Biggest conflict is over hypnosis: how much real control do you have?
2. Omission ONLY if in statute (MPC 2.01(3)) or legal duty i.e. parent/spouse/K a. X if you put them in danger: most cts impose liability cuz tort law does
b. Samaritan laws in US/UK rare (3 sts + 3 lim’d) ; most sts 86’d misprision laws
V. Culpable Conduct : MENS REA (MR) – Essential element = state proves BRD
A. Guilty mind required; mental attitudes accompanying the prohibited act (Cunningham)
1. Defines who we want to criminalize; don’t want to punish accidents, etc
2. Even when a statute doesn’t spec a MR, imply it. More than mere neg! (Elonis)
3. Debatable as to whether deliberate ignorance counts as knowledge (Jewell)
a. Have to suspect something in first place to be deliberately ignorant of finding it
b. MPC 2.02(7) ONLY if awareness of hg probability that circumstances exist
c. SCOTUS: know hg probability fact exists AND take deliberate actions to avoid learning the fact (Global-Tech)
B. Meaning: blameworthiness in choosing to commit a crime
1.CL: Criminal liability reqs a blameworthy mental state for the offense at issue
a. CL ‘intent’ = purpose or knowledge (foresee); MORE than recklessness
b. Tons of terms w/o solid, consistent definitions i.e. malice/intent
c. Specific v. general intent created lots of confusion re: MR reqs
i. Spec: proof of some add’l intent beyond min conduct req’d for crime
-OR crime that reqs proof of knowledge of some fact (i.e. age)
ii. Gen: only intent req’d is intent to engage in conduct req’d for crim
-OR lesser guilty minds than knowledge are sufficient for guilt
2. MPC 2.02(1): prove culpability for EACH material element of the offense
a. More than ½ of states adopted or are influenced by it
b. 2.02(2): strict defs; 4 mental states: purpose, knowledge; recklessness; neg.
i. Purpose: conscious object (goal); Knowledge: certainty or hg probability
ii. 3 pts of recklessness: aware of risk; risk is substantial; risk is unjustifiable
iii. CRIMINAL neg: gross deviation from reasonable person; beyond tort!
-Basically recklessness, but what you SHOULD know
-Questionable if we should punish at all – can’t deter
c. 3 kinds of ‘elements’1.13(9)/(10): conduct, attendant circumstances, results
i. Don’t need all 3, can have more than 1 of a kind, don’t always have result
d. Default rules help interpret/determine reqs in silent/ambiguous laws
i. (3) When statute is silent, anything above negligence will do
ii. (4) MR req at the beginning, but not for each element, apply to all
-If neg for one element NOT at beginning, (3) applies to the rest
iii. (5) Hgr degree of culpability than statute reqs ALWAYS enough
C. MR EXCEPTION: Strict liability crimes (2.05): no MR req’d for at least 1 element
1. Still req’s actus reus – must be voluntary (Baker: cruise control failure/speeding)
2. Presumption favors MR when statute is silent; MPC 2.05 completely opposes
a. When punishment is more in depth (ie imprisonment) tend to think not strict
b. Today, public welfare crimes tend to be strict; i.e. traffic regs, sell bad food, etc
c. MPC would always rather err in favor of no judgment w/o proof of culpability
d. © canon: if one interpretation is ©’l and one isn’t, favor the one that doesn’t
e. If there’s cases Congress wouldn’t want to penalize, prolly not strict liability
f. Potential problem when if not strict, completely toothless (X-Citement video)
3. Why good? Deterrence, no lying, admin ease; DON’T want stigma w/o guilty mind
i. Some legislators might think civil sanctions not enough of deterrence
4. Middle grounds: have prosecution prove neg or have D prove non-neg instead
D. MR ‘defense’: Mistake of Fact – impossible to form the req’d MR – sometimes allowed
1. Raise doubt as to if req’d element met = not technical defense b/c burden on state
a. May not allow at all if legislative intent indicates otherwise (Olson)
b. Only 20 states allow mistake at all in the cases of statutory rape; rest allow nothing
c. MPC says strict liability for kids under 10 – 213.6
2. 3 CL approaches
a. Defense if mistake is reasonable and the act is taken under bona fide mistaken
belief (Freeman – believed stereo paid for)
b. Not a defense if what D knows or believes he is doing is (morally) wrong
(Prince – knew was taking girl, just didn’t know under 16)
c. Not a defense if D knows/believes what he did was a lesser crime (dissent)
3. MPC approach 2.04(1): defense if the mistake negates the req’d MR of the crime
unless D though he’d be guilty of a different/lesser offense, but red degree
4. Can’t use mistake for strict liability crime – no req’d MR to negate
5. English approach: D judged on facts, as he believed them to be (B. (Minor))
E. MR ‘defense’: Mistake (Ignorance) of Law – USUALLY NOT A DEFENSE!!!
1. Generally: Don’t req MR re:
add’l behavior make unwillingnexx clear
ii. Verbal resistance alone (No always means no)
iii. Verbal resistance or passivity (refusal or absence of affirmative permission)
iv. Absence of verbal permission (anything other than yes) – NO ST HERE
4. Defective Consent: maturity; retardation; drugged/unconsciousness; some states allow
voluntary intox to negate consent; Authority and trust (questionable outside psych)
a. Difference b/w coercion and ‘bargaining’ – economic threats almost never enough
D. MR for Rape
1. Strict Liability: honest mistake not a ‘defense’; minority: MA Sherry; PA Fischer
a. Problem: want lvl of fault. Good: max deterrence, unlikely to do it w/o consent
2. Negligence: honest and reasonable mistake is a ‘defense’ MAJORITY VIEW
a. Advantages: protect victims, match social stds, assure D is somewhat at fault
3. Purpose/Knowledge/Reckless MR: honest mistake is ‘defense’ (Few: AK, Eng)
* Gradation based on MR may make law too complicated, but gives judge discretion in
sentencing to account for the variance in the crime i.e. degree of harm/force
V. HOMICIDE: the killing of one human being by another human being – not always a crime
A. History: starts in 1500s that only criminal homicide is murder
1. First half of 16th c.: at CL, judges do manslaughter as a lesser crime
2. Later: cts dvlp 2 kinds of manslaughter: voluntary and involuntary
3. 1974: PA leg dvlps division of murder b/w 1st (premeditation) and 2nd degree
VI. INTENTIONAL HOMICIDE (mostly but some overlap)
A. Murder – killing w/ ‘malice aforethought’
1. First degree murder: willful, deliberate, and premeditated killing (Carroll PA)
a. Majority: req only a ‘spec intent (conscious purpose) to kill’; no time needed
i. Can be found from words, conduct, circumstances or inferred
ii. Pros: Hgr deterrent factor; culpable for failing to control impulse
b. Minority: req actual reflection/forethought/ ‘intent PLUS’ (Guthrie)
i. Pros: deterrence doesn’t help v. impulse, more culpable w/ forethought
ii. Anderson: reflection evidenced by planning, motive, manner of killing
2. Second degree murder: any other intentional killing that doesn’t meet 1st degree
a. PA used this to avoid giving all murderers the death penalty: life prison
b. NY divides degree depending on who (cop) you kill; deterrence > culpability
3. MPC 210.2 doesn’t distinguish based on premeditation: no consistent way to divide ppl
B. Voluntary Manslaughter
1. CL: murder mitigated b/c ‘heat of passion’ w/ ‘adequate provocation’
a. Categorical approach (traditional/Majority): specific things constitute adeq prov’n:
i. Girouard: ‘Intent MINUS’: adeq prov’n in heat of passion, no cooling
ii. Prov’ns: extreme assault, mutual combat, illegal arrest, abuse of close relative
sudden discovery spouse’s adultery (some sts remove this category)
-Words alone are NEVER enough to constitute adeq prov’n
iii. Pros: more bright line, fwr cases allowed, less jury variation
-Want to expand? Add more categories
