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University of Kentucky School of Law
Harding, Roberta E.

Harding / Criminal Law / Fall 2012
A>    Introduction to a Crime
1.     Crime- anything lawmakers say is a crime; done against the community at large b/c strikes at the rights of the public to be secure
2.     Usually includes an action (negative, annoying, disruptive) that produces harm against a person (and thus the community)
a.     Harm can be actual or potential
b.     Civil penalties – compensatory or punitive {legal remedy}
c.     Criminal penalties – incarceration; stigma, guilty charge is punishment
3.     People must know that criminal statutes exist and what the crime entails
4.     Ex post facto – a law that applies retroactively, by criminalizing an act that was legal when it was committed
a.     These laws are not permitted
5.     Sources of Criminal Law
a.     Common law—judge-made law, developed over time and passed down by courts; does not exist anymore because all states have either adopted the MPC or their criminal statutes; general statutory common law
b.     Criminal Statutes—enacted by the legislature; still some states may have statutes of “reception” that take unwritten common law crime and make them punishable, but this is rare
i.         Many modern statutes are still interpreted or applied using the common law definitions unless there is a statute definition
ii.       KY has no statute of limitations on felonies
c.     Model Penal Code-created by American Law Institute(judges, lawyers, professors); contains general principles of criminal responsibility, definitions of specific offenses and sentencing provisions; not the law, but is persuasive authority and influences criminal systems
6.     Types of Crime
a.     Misdemeanor- minor offenses for which max punishment is fine or minor jail time; everything else
b.     Felonies-punishable by death or imprisonment; murder, arson, mayhem, rape, burglary, robbery, larceny, prison escape, sodomy, etc.
B>    Criminal Offenses (KY)
1.     Violations: fines, no confinement
2.     Crimes: felonies and misdemeanors
a.     Felonies: >1yr, longer term confinement.
i.         Class A (capital) 20-50yrs, death LWOP
ii.        Class B, 10-20yrs
iii.      Class C, 5-10yrs
iv.      Class D, 1-5yrs
b.     Misdemeanors: short-term confinement
i.         Class A, up to 12mo in jail.
ii.        Class B, up to 90 days in jail.
C>    Criminal law intends to punish the offender, while civil law intends to compensate the victim of the wrong.
D> Theories of Punishment- must be an authorized, unpleasant consequences for an action deemed criminal; must be from within the criminal justice system.
1.     Utilitarianism – forward looking/crime prevention; punish a person to prevent future criminal behavior; no punishment if it will not benefit society
a.     general purpose of laws is to prevent mischief when it benefits society as a whole
b.     believe that the threat of punishment can reduce crime;
c.     general belief that humans are rational who will balance the expected benefits of the proposed conduct against its risks, taking into account such factors as the likelihood of a successful commission of the crime, the risk of detection and conviction, and the severity of the likely punishment
d.     A criminal will avoid criminal acts if the potential punishment is greater than the potential criminal reward
e.     Forms
i.         General deterrence—one person is punished in order to convince the general community to stop criminal activity in the future; done to prevent future crimes
ii.       Specific deterrence—punishment is meant to prevent/deter future misconduct by the Defendant
                                                                                                                                (i).      Incapacitation—imprisonment keeps particular actor from committing more crimes
                                                                                                                              (ii).      Intimidation- D’s punishment will remind him not to return to criminal activity or he will have more pain
iii.     Rehabilitation—reform; use correctional system to reform the wrongdoer rather than to secure compliance through punishment; changing for better thru training, therapy
2.     Retributivism – backward looking; justifies punishing a person b/c they committed a crime
a.     Punishment is justified when it is deserved
b.     If wrongdoer freely chooses to violate society’s rules, the wrongdoer should be punishment whether or not it results in a reduction of crime
c.     May not prevent crime; people have free will and must accept consequences of their actions
3.     Mixed Theory – Hybrid called “Denunciation/Expressive-“ punishment is justified as a means of expressing society’s anger and the seriousness of the crime(utilitarianism and retributivism)
Affects future conduct and is a form of society’s moral condemnation
E> Sources of Criminal Law
a.       Common Law: England, judicially created.
                                                                           i.       Judges created the criminal law.
                                                                          ii.       Since abolished, too arbitrary (example: judges in disagreement over burglary definition, two offenders guilty of the same crime might receive very different punishment depending upon what judge they get.)
b.       Legislature: Statutes.
                                                                           i.       Uniformity of laws
                                                                          ii.       Much faster, more personnel
F> Presumption of Innocence (Burden of Proof and Presumptions)
c.        Defendant is presumed innocent until proven guilty.
d.       Prosecution must prove all elements of the offense beyond a reasonable doubt for criminal liability to attach.
e.        Burden Of Proof is higher in the criminal law than in the civil law because the stakes (consequences) are higher.  In the civil courts D will have to pay money if found guilty (lesser punishment, lower BOP), in criminal law D could lose his life so we want to be closer to certainty before we convict.  “Better 10 guilty men go free than 1 innocent man convicted.”
II. Elements of an offense: Actus +causation+Reus+Mens Rea.
This equation will be used by the prosecution to prove every crime!
A. ACTUS:  conduct or action (Actus= conduct /bodily movement= act=voluntary act= volition+conscious)
I. Voluntary act {affirmative act – cause harm}
A person is not guilty of a crime unless their conduct includes a voluntary act .
a.     “Act”-physical, bodily movement(does not include internal mental processes of thinking about the act)
i.         There can be movement but no act, must be willed(A can’t hit B with C’s arm and C be charged)
ii.       Does not apply to results of a person’s bodily movement(if A puts a bomb in B’s house and B dies, act does not include B’s death(reus))(be specific about actus-bomb explosion)
iii.     Must be voluntary in nature
b.     “Voluntary nature”- willed movement, person meant to do it, desired, willed movement of muscle,

e. Note: Kentucky does not have a proximate cause only actual cause.
a. Direct cause: no intervening causes between D’s act and the harm.
i. I shoot you in the chest and you die immediately, I am the direct cause of your death.
ii. The causal chain is unbroken, proximate cause satisfied
b. Indirect cause: 
i. Intervening cause:  something comes in between D’s conduct and the resulting harm.
1) Does not necessarily break the causal chain, i.e. D is still the proximate cause UNLESS the intervening cause is supervening.
ii. Supervening cause: breaks the causal chain, D is not the proximate cause, supersedes D’s act/omission in the causing of the harm.
1) To determine if intervening cause is supervening: ask why did it happen?
1. Response to D’s conduct:
a.          If it was a foreseeable response to D’s act/omission, causal chain is unbroken. (i.e. D shoots V in the chest, V is rushed to the emergency room, ambulance wrecks and V is killed instantly.  This intervening cause is not superseding because the ambulance ride was in response to D’s conduct of shooting V, and one could argue an ambulance crash is foreseeable.)
b.    If it was a response to D’s conduct but unforeseeable, bizarre, abnormal, or the victim acted on their own free will (Stafford sitting in the middle of the road) the causal chain is broken, as it is a supervening cause.
2.          Coincident to D’s conduct:
a.  Breaks the causal chain, totally unrelated to D’s act/omission.
b.             Example (D beats up V and robs him, then leaves him on the side of the road whereupon 30 minutes later C comes and shoots V and kills him.  C is a coincidental, supervening cause of V’s death: C was not reacting/responding to D’s conduct, D just put V in a place where he could be acted upon by an outside force.
C. Reus: (the social harm)
1.Conduct crimes: prohibit specific dangerous acts in society.
o    Drunk driving or solicitation to commit a crime.
2. Result crimes:  prohibits a specific result: tangible outcome.
o    Murder, arson
Attendant circumstance.    condition that must be present in conjunction with the prohibited conduct or result. Example. “while intoxicated”  for drunk driving, being drunk is attendant circumstance.  Actus reus doesn’t occur without it!  -must have an alive human for there to be murder, or a car in order to have vehicular manslaughter
o    Ex. Enter (actus) residence without permission (reus) with intent to steal (men’s rea)
o    Driving (actus) a car while under the influence (reus)
Reus has both elements: result and conduct.
·         -to commit murder one must cause the death(person must dead: cardio/respiratory, brain death, must be proven) of a human being (viable fetus v. born alive.)
NOTE: make sure to actually explain what is a human being:
·         -to get a DUI one must operate an automobile while under the influence.