Select Page

Criminal Law
University of Kansas School of Law
Wilson, Melanie D.

Criminal Law Outline
Always start with statutes!
Tie in Utilitarianism and Retrib.
On the exam, you’ll just say “yes, fetus is part of your body.” You need to say WHY you’re right.
Looks to past
MUST punish Moral culpability: NEVER punish innocent
   –looks more kindly on crazies, capacity
People deserve punishment-don’t care about deterrence
“eye for an eye”
morally right to hate criminals/noxious insects
Punish wrongdoer to give power back to victims/focus on victim
punishment despite rehabilitation
innocent (not morally culpable) shouldn’t be punished for the benefit of all
Benefit society
Looks to future
Looks at consequence of punishment decision
what to do to minimize future crimes
Deter others
Deter individual
                                     Believes in rehabilitation
8th AMENDMENT/Constitutional (cruel and unusual punishment)=minimum for state
3 strikes law=OK by Ewing
8th Amendment analysis
sentences of others in same jurisdiction
sentences of others in other jurisdictions
Proportionality in Punishment (Does the sentence fit the crime?)
Case: Dudley: two guys on stranded boat eat 17 year-old co-passenger to keep from dying. Tried and convicted of murder
Uniformity in sentencing—probably impossible to achieve
–Determinate sentencing: add or subtract points based on circumstances (people across states get same points)
–Indeterminate sentencing (individual characteristics help)
Give powers to Judge (indeterminate) or Congress (determinate–more uniform) to decide sentencing? Depends where your skepticism lies.
-no crime without a preexisting law, no punishment without a preexisting law
            -Fair warning
                        -don’t want judges making crimes out of things they don’t like
Due Process violation to punish ppl committing crimes that weren’t illegal at the time
                        –Can the D expect this to be a crime? Legislature can create new laws.
Vagueness – important. Violates DP. If statute is so vague, people of common intelligence must necessarily guess and differ at its meaning, you can get it thrown out.
–not vague if explained by prior case
Case: Keeler v. Superior Court: “human being” include a fetus?
            -changing or expanding the definition of fetus would be a due process problem
Statutory Interpretation:–Court looks in order:
1.  Plain language of the statute, grammar/commas
2. Legislative history/intent
3.  Common usage, what other circuit courts have done. Dictionary meaning.  Location in civil or criminal code.
4.  Rule of lenity
Rule of lenity: if statute has GRIEVOUS ambiguity, the meaning should be in favor of defendant
ACTUS REAS=External, Voluntary physical movement that causes a social harm
Every crime will have, unlike mens rea. Defined by statute.
1.      Conduct crimes – crimes defined in terms of harmful conduct, not harmful results. 
a.       EG: drunk driving – socially valuable interests have been jeopardized by the drunk driver’s conduct; no one has to get hurt. 
2.      Result crimes (eg, Murder)– offenses defined in terms of prohibited results. 
Attendant circumstances – explains where or under what circumstances someone does the act
                                                Might convince the jury that attendant circumstances not lead to actus reus
HYPO: Consent and age of consent. Is age of consent a result, conduct, attendant circumstance? It’s an attendant circumstance. You intent to engage in the sexual intercourse (so there’s still mens rea).
Not a crime just for status w/o an act
Case: Martin v. State: this case was where the guy appeared drunk in public=not an act, not a crime
Crime has 4 main components
1.      Forbidden conduct (act or omission)
2.      Attendant circumstances
3.      A result (not all crimes)
4.      Some level of intentionality
The top three deal with Actus Reas, #4 deals with Mens Rea
Model Penal Code 1.13 (2), and 1.13(3) and 2.01
– no person may be convicted of crime in absence of conduct that includes voluntary act
VOLUNTARINESS: EXAM: Timing important (esp. w/ mens rea)
An “act” involves an exercise of the will, something done voluntarily and not a learned physical reaction to external stimuli which operated automatically on autonomic nervous system.
            EG. Automatic=epilepsy, sleepwalking
Case: Utter: automatistic murder case—drunk dad kills son. Jury an’t tell voluntary/involuntary.
BOP on gov’t to show that def acted voluntarily/involuntarily (gov’t handles BOP on actus, mens, and causation)

ed proof that the actor intentionally committed the bad act in bad faith or in violation of a known legal duty
CL Negligence–GROSS deviation from the standard of care that a reasonable person would have observed in the actor’s situation. 
a.       Deviation occurs if the actor takes an unjustifiable risk.   
3.      Negligence = objective fault – an actor isn’t blamed for a wrongful state of mind, but for not living up to the standards of the objective reasonable person.
CL Recklessness= requires proof that the actor disregarded a substantial & unjustifiable risk of which he was aware. (subjective fault unlike negligence)
Malice– a person acts with malice if he intentionally or recklessly causes the social harm prohibited by the offense. 
Reasonable person standard=Negligently
Common law words translated into the Model Penal Code
maliciously –> purposely, knowingly, and recklessly
intentionally –> purposely, knowingly
EG. MPC Mens Rea
            – Regina v. Cunningham
                        D unlawfully & maliciously asphyxiated neighbor by stealing gas meter &                      thereby allowing gas to steep into victim’s room
purposelyà D wanted neighbor to inhale gad bc he wanted her to suffer
knowinglyà D knew that it was virtually certain that she would inhale
recklesslyà D did not know for sure that she would inhale gas but he considered possibility and took meter anyway [minimum level] negligentlyà D did not think of possibility that she would inhale but TARP would have realized significant risk
Transferred intent – OK. But not really if there’s different social harms!
            EG. No if you throw a rock at a person and hit building instead.
–Dressler thinks this is superfluous b/c law defines MR as intent to do something, not intent to do something to a specific person
Specific intent vs. General intent
 general intent crimes – mens rea relate