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Criminal Law
University of Maine School of Law
Ghachem, Malick W.

Prof. Ghachem, Maine Law

Criminal Law

Fall 2013

Part One

The Boundaries of Criminal Law

What is Guilt? (Or, How to Prove a Criminal Case)

CB 31-33: In re Winship, proof beyond a reasonable doubt

In re Winship

Holding: in criminal cases to prove criminal liability elements of offense must be proved beyond reasonable doubt, not preponderance of the evidence.

Reasoning: as a society we think its better to make a mistake of freeing the guilty than to charge the innocent.

CB 36-41: Allocating the Burden of Proof

Under common law, burden of proof is on defendant to show heat of passion/sudden provocation and other affirmative defenses.

Patterson v. New York

Facts. D convicted of 2-degree murder of his wife. Under NY law, D can raise an affirmative defense that he “acted under the influence of extreme emotional disturbance.” D bears burden of persuasion by a preponderance of the evidence.

D claims shifting the burden of persuasion to him violates due process.

Rule of Law. Similar to common law: In a criminal case, the defendant who raises an affirmative defense shall bear the burden of persuasion unless the affirmative defense is a presumed element of the offense under the statute.

Rationale: In NY malice afterthought is not an element of the crime. State is only required to prove beyond a reasonable doubt the elements of the crime: death, intent to kill, and causation. There NY elements: (1) “intent to cause the death of another person; (2) causing the death of such person or third person.” So D bears the burden of defense.

Mullaney v. Wilbur -Contrasted case: Maine’s statute defined murder as the “unlawful killing of a human being with malice aforethought, either express or implied.” Mullaney’s court held Maine’s requirement that D prove heat of passion invalid b/c under this definition (malice) was “presumed” unless the defendant persuaded the jury otherwise (by showing action from heat of passion). So if malice is part of the statute, the prosecution has to prove it and not D to deny it.

Petterson ignores the holding in Mullaney and approves New York’s requirement that the defendant prove extreme emotional disturbance.

Effect of the Court’s rule: legislatures can shift the burden of persuasion with regard to any factor in a criminal case, depending on whether that factor exists in the statutory language defining the crime.

To define a valid crime, you need to have:

1. actus reus 2. mens rea 3. Causation 4. Resulting harm

Civil vs. Criminal Liability; Why Punish?

MPC 1.02: Purposes, Principles of Construction

MPC 1.04: Classes of crimes, violations

MPC 1.05: All offenses defined by statute, application of general provisions of the code.

Justifications for punishment fall into 2 categories:

1) Retributive- claims that punishment is justified b/c people deserve it. Backward looking b/c seek to justify punishment on the basis of the offender’s behavior in the past.

2) Utilitarian- Believes that justification lies in the useful purposes that punishment seeks.

Tend to be forward-looking, justify punishment on the basis of the future good consequences it is expected to produce. The purposes are:

a. Prevention b. Rehabilitation c. Incapacitation

6 theories of criminal justice:

1) Retribution – eye for an eye; in the name of the state; act was so egregious that deserves


2) General Deterrence – Punish person in order to send a message to the general population

– show that if engage in certain activity, this is the punishment; use this person as an

example for the rest

3) Specific Deterrence – punishing the same person so they will not do the same thing again

4) Rehabilitation – Incarcerate person to TREAT her so she will not do s/t like this again

5) Restraint/Incapacitation – (custody or restraint) – Incarcerate dangerous people to get

them off the street and separate them from society, prevent future harm by these people

6) Public Education – Communicate what values are important as a society by determining

what we punish. We d/n really know what we stand for until we in fact know what we

will tolerate. Tells us what we as a society are all about.

CB 80-87: The basis for punishment

Regina v. Dudley and Stephens

Facts: killed a 17 year old in a boat and ate him after being lost at sea.

Issue: big dilemma about whether the men guilty b/c killing did not guaranteed surviving, on the other hand maybe it did who knows.

Rule: necessity of hunger, temptation and unfortunate circumstances do not justify murder.

Court prefers promoting self sacrifice, deterrence.

However, this ended up with conviction and mercy.


Ewing v. California (Three strikes law- disproportionate sentence?)

Facts: D had two felonies, was sentenced for 25 years for stealing golf clubs.

Held: 3 strikes law doesn’t violate 8 amend of cruel and unusual punishment.

Rule: 8 Amend does not require strict proportionality between crime and sentence. it forbids only ‘grossly disproportionate’ sentences.

Three strikes laws have the purpose of isolating career criminals from public and has in mind: Retributivism, deterrence and incapacitation.

Ultimate Punishment

CB 557-565

McCleskey v. Kemp (discrimination in sentencing/equal protection)

Facts: Black guy shot white police officer during robbery in Georgia. Got death sentence.

Brought statistical study that showed risk of racial consideration of juries.

Rule: Court will determine on a case-by-case basis whether the laws applied consistently with the Constitution. To show a discriminatory intent, it requires showing that you sentenced to death BECAUSE of race and not IN SPITE OF race.

Part Two:

Elements of the Offense

The Criminal Act

CB 205

Martin v. State (Actus reus must be a voluntary action)

Facts. police arrested D at his home and took him to public highway. D manifested drunken condition by being laud and using bad words, was convicted for being drunk on a public highway.

Rule of Law. person must voluntarily commit the crime charged to be guilty of the crime.

Issue. Is the conviction proper? (Held: No)


People v. Newton (Actus reus can’t be involuntary)

Fact: D was convicted of manslaughter for shooting police officer in a struggle with D. D testified that he was unconscious during the time, but judge failed to instruct jury on the subject of unconsciousness as a defense.

Rule of Law: involuntary unconsciousness is a valid defense in case of homicide prosecution. Prejudicial error exists where a judge refuses a requested jury instruction where evidence of involuntary unconsciousness found to have existed.


Johns v. United States (omission liability)

Fact Defendant found guilty of involuntary manslaughter of his friend’s baby where he failed to provi

of imprisonment, more than a civil negligence must be shown.

United States v. Jewell (Willful Blindness = Knowledge)

MPC 2.02 (7)- requirements of knowledge satisfied by knowledge of high probability

Facts. D drove a car with drugs to the US. Contends he did not have the required mental state of “Knowingly”, b/c he had no actual knowledge of drugs.

Rule of Law. Willful blindness = knowledge because one may deliberately shut his eyes.

To act ‘knowingly’ is not necessarily to act only with positive knowledge, but also to act with an awareness of the high probability of the existence of the fact in question.

MPC 1.13(11-16), 2.02(1-4)

Mens Rea (II) – Mistake of Fact and Strict Liability

CB 266-267

Regina v. Prince (Mistake of fact is not a defense for strict liability crime)

Facts. D convicted under a statute making it unlawful to take any unmarried girl under 16 from her parents. D took a 14 year old, but she told him and he reasonably believed she was 18.

Rule of Law. Where a statute is silent as to the mens rea required to make the act a crime, the court is not bound to read any mens rea into the statute, so it’s a strict liability crime.

Held: Guy is liable b/c this was a strict liability and no mens rea needed.

Note: Mistake of fact does not stand as a defense to a strict liability crime, b/c the statute contains no requirement of knowledge of that fact to begin with.

People v. Olsen (Mistake of fact is not a defense for strict liability crime)

Fact. Ds violated California’s penal code that prohibits commission of sexual acts with children under 14. Ds argue mistake of fact as to the victim’s age is a defense to the crime charged.

Rule of Law. Majority states rule and MPC rule: Mistake of age is not a viable defense in cases of statutory rape. (like in other strict liability offenses too)

Morisette v. United States (difference between strict liability offenses that do not require intent from offenses where the intent requirement is implied regardless of statutory silence on the element of intent.)

Fact. Junk dealer took bomb cases from Air Force property and resells. Convicted of violating statute: “knowingly converting gov’s property”, but statute has no mention of “intent”.

Rule of Law. mere omission from the language of statute of intent in common law crimes, is not to be construed as eliminating the element of intent from the crime.

Held: in this case, knowledge is the intent. If D had knowledge that the property wasn’t abandoned by gov’, it establishes the requisite intent.

Rationale: Larceny offences are well rooted and defined in common law. Therefore Congressional silence with regard to mental elements in such offenses is different than congressional silence in creating new offences where courts’ only guidance is the statutory language.