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Criminal Law
University of Kentucky School of Law
Lollar, Cortney E.

Criminal Law Outline – Prof. Lollar – Fall 2015

Chapter 1: Institutions and processes

The Structure of the Criminal Justice System

What is a crime?

Social harm against community, this is why public entities try the cases
Socially stigmatized behavior
Moral condemnation = criminal quality

Presumption of innocence until proven guilty
Who decides what is a crime: common law, legislature, courts, Constitution

The Process for Determining Guilt

Proof beyond a reasonable doubt

Burden of proof in crimes: beyond a reasonable doubt
Reasonable doubt: Not a mere possible doubt . . . It is that state of the case which leaves the mind of the jurors in that condition that they cannot say they feel an abiding conviction of the truth of the charge. (CA Penal Code § 1096, 1994)

Meant to reduce risk of convictions resting on factual error.

Proof beyond a reasonable doubt is a prime instrument for reducing convictions of innocent people. (IN RE Winship 1970)

Stigmatization and loss of freedom requires a higher standard than preponderance of the evidence.

Chapter 2: The Justification of Punishment

Probing the Basis for Punishment

Killing deserves punishment, regardless of the reasoning behind it. (Regina v. Dudley 1884)

D’s killed another man on a boat for survival. Boy was not capable of resisting. Court held that you can’t put your life above someone else’s.

Why Punish?

Punishment needs justification:

General justification – why do we punish
Distribution – who do we punish
Degree – how much do we punish

In exam always discuss the effect of moral condemnation in a crime or in deciding whether to punish someone or whether or not something should be a crime.

The Utilitarian View

Utilitarianism – the greatest good for the greatest number, maximizing good and happiness in society

Cost-benefit analysis – if the pain is greater than the good expected, one might not act.

Utilitarianists will be okay with punishing innocent person if it is for the greater good.
Forward looking → aimed at preventing future crime.
Aimed at deterrence:

General Deterrence – (main goal) punishment to deter others from acting.
Specific Deterrence – punishment to deter the individual from acting again.

Deterrence by Incapacitation: imprisonment prevents D from committing crimes

Two main methods:

Incapacitation – depriving an individual of their freedom so that they do not commit any more crimes.

Ignores crimes in prison
Not a justification for those who would not commit again

Rehabilitation – reform the wrongdoer rather than secure compliance through fear.


Retribution – punishment should meet the severity of a crime and exist to correct past behavior.

Blame-based – sometimes linked to moral culpability
Backward looking….. correcting wrong
Looks at individual character
Only the guilty will be charged – the criminal chose to violate the rules and therefore deserves the punishment (just deserts)
It’s morally right to hate criminals

“Cousins” of retribution

Retaliation and vengeance: Focus less on the blameworthiness and more on the harm it caused.

Mixed Theories

Aim of punishment v. limits on its use

Incapacitation before sentencing

Justifies punishment on preventative grounds, limits punishment to no more than deserved.

The complexities of crime control


Resources need to be used effectively
Group norms can deter
criminal must: (1) know the rule, (2) perceive the cost of violating the rule, (3) be able and willing to weigh this cost-benefit.

Rehabilitation: “Diseased,” so no blame
Incapacitation: Job slots – one person out, another in, but, people will recommit, so keep them from doing it

Chapter 3: The Elements of Just Punishment


Actus reus – voluntary act or omission that causes a social harm.

Need bad act (actus reus), culpable mental state (mens rea), causation, and concurrence (actus reus and mens rea happening at the same time).

a. The requirement of voluntary action

Thought is not a crime

s will, moral blameworthiness in choosing to commit a criminal wrong.

Mens rea + actus reus required for a crime.
Statute will specify mens rea.
Malicious intent can be proven through foreseeability (Regina v. Cunningham 1957)

D stole money from a gas meter and in the process released gas that poisoned the resident. Conviction quashed and it needs to be determined whether or not D foresaw that the removal of the meter would cause injury to someone.

Common law requires intent and willfulness to create mental culpability (Regina v. Faulkner 1877)

Sailor was robbing boat’s rum supply and accidentally caught rum on fire, burning the boat down. Conviction quashed because he did not intentionally burn the boat down.

Common law categories of culpability:

Specific intent – the intent to accomplish the precise criminal act.

2 elements
Committed if purposeful or knowledgeable
Example: possess a firearm with the intent to use it during a drug deal.

General intent – blameworthy state of mind is all that is required.

Usually reckless and negligence.
Example: possess a firearm in a school zone.

Model Penal Code categories of culpability: (specific intent crimes mens rea)

Purpose – conscious effort to perform action of a certain nature with a certain consequence (subjective)
Knowledge – aware that conduct has result practically certain to follow (subjective)
Recklessness – disregard substantial risk which one is aware of (subjective)

Conscious risk creation
Risk unjustifiable
Knew of risks but acted anyway

Negligence – not aware of risks but should have been (objective)

Needs to be substantial and unjustified