CRIMINAL LAW
STARR
SPRING 2012
I. Punishment Philosophies
a. Criminal v civil: criminal sanctions bring judgment and condemnation of community
i. This warrants unpleasant physical punishment
b. Theories of punishment
i. Shape criminal law:
1. Defining crimes, defenses to crimes, theories of individual liability, sentencing
ii. Retributivist – moral desert of offender is sufficient reason to punish
1. What determines moral desert?
a. Mental state, voluntary engagement in socially harmful acts, actual social harm, lack of justification/excuse
2. Deterrence of future crime doesn’t matter – even if no societal benefit, wrongdoer should be punished b/c he’s morally culpable
3. Punishment as defeat – D demeaned V, false moral claim that must be corrected to affirm V’s equal worth
4. Punishment must fit crime
5. Negative – moral desert is necessary for punishment
6. Positive – moral desert is necessary AND sufficient for punishment
iii. Utilitarian – justification for punishment lies in useful purpose that it serves
1. General object of laws is to augment total happiness of community
2. Punishment can only be justified if its good consequences outweigh its harm
3. General deterrence – other people won’t commit crimes
a. Greater temptation to commit certain crime and smaller chance of detection, more severe penalty should be
b. Punishment x probability > expected gain
4. Individual deterrence – dissuades D from repeating act
5. Incapacitation – get criminals off the street
6. Rehabilitation – reform criminal so he won’t commit crime again
a. Leading theory in Europe, fell out of vogue here in 1970s
b. Small scale revival – drug and mental health courts, prisoner reentry
7. Expressive theories of law – law sends messages that can:
a. Shape social norms and behavior
b. Vindicate/empower Vs
II. Sources of law and State Interpretation
a. Sources of criminal law:
i. Crimes are defined in statutes – not the CL
ii. Defenses can be grounded in CL
b. Leg has primary responsibility for defining criminal conduct and devising rule of criminal responsibility
c. Constitutional Safeguards on issues of fundamental fairness
i. Ex post facto clause (leg) – no retroactivity
ii. DP clause (courts) –criminal laws can’t be applied more broadly than D could have anticipated
d. Legality Principal – non-retroactivity
i. can only be convicted if conduct was defined as crime at time of act
ii. sentencing increases also can’t be retroactive
e. Problems with early criminal code –
i. Not all crimes and defenses codified, those that were – just collection of statutes that often overlapped, conflicted and were enacted in piecemeal fashion
ii. Silent regarding essential penal doctrines
f. MPC developed in 1962
i. Simpler, more internally consistent, more progressive
g. Void for vagueness è criminal statutes violate DP if they don’t give clear notice of what they prohibit
i. Vagueness can void statute if it:
1. Fails to provide fair notice
2. Authorizes/encourages arbitrary and discriminatory enforcement
ii. Banks – peep case
1. Peep in statute ok – looked at leg history
2. Statute must be strictly construed w/regard to evil it means to suppress
a. Intent of leg control interpretation of statute
iii. Morals – loitering statute says “no apparent purpose”
1. Statute too vague – gives no standard of conduct and no guidelines to govern law enforcement
iv. When ambiguous/unclear meaning, look at following to determine leg intent:
1. TEXT, goals/structure of stat scheme, leg history, prior judicial interp, CL background, similar language in other provisions, assume words are NOT superfluous
v. Rule of Lenity – if interpretive techniques don’t resolve ambiguity, err on side of defining crime narrowly
1. If this doesn’t solve vagueness problem, then there’s no plausible narrow reading that reaches only clear-covered conduct
2. Muscarello – carrying firearm ‘during and in relation’ to drug crime
3. Carrying here was held to mean more than just carrying on person
a. looked at leg intent, meaning/origin of word, other uses, other limiting words in statute
4. Only turn to Rule of Lenity when there is a grievous ambiguity
a. dissent says it’s just when there is no clear meaning
vi. Summary of how to interpret vague statute:
1. TEXT, followed by other indicia of intent (if text is ambiguous)
2. Lenity – pick the narrower reading if it’s still ambiguous
3. Void for vagueness
BASIC ELEMENTS OF CRIMES: ACTS, MENTAL STATES, CAUSATION
I. Reasonable Doubt
a. Winship rule – each element of crime must be proved beyond reasonable doubt
i. POLICY – D has possibility of losing liberty/stigmatization
1. Commands respect and confidence in system
ii. Judges are neither prohibited nor required to define for jury instruction
II. Acts and Omissions
a. Omissions – generally, no duty to act
i. No liability for omission unless duty to perform is expressly defined in law
ii. For omission to be offense, it must also be duty
iii. Beardsley – for duty to act, you must have legal duty to the person
a. Legal duty arising from special relationship
iv. POLICY:
1. Omissions are ambiguous – hard to determine culpability of omitter
a. Difficult line-drawing problem
2. Bystanders might make things worse
3. Liberty/freedom loving Americans
v. Non-disclosure not a crime, but active concealment is
vi. Omissions are crimes when:
1. D could’ve acted voluntarily AND
2. D was under affirmative legal duty to act
b. Acts – must be voluntary
i. MPC 2.01 – requirement of voluntary act
III. Mens Rea
a. Two uses – culpability meaning and elemental meaning
b. Conley – D hits V, accidentally gives him a permanent disability
i. Ordinary presumption –one intends natural/probable consequences of actions
1. But you can’t instruct this – DP violated if presumed
a. Jury must know they don’t have to draw inference
2. Allows inference of actions from surrounding circumstance
c. Transferred intent – D intends to harm one person but harms another, intent transfers
i. Accused is culpable, society is harmed, D accomplished what he intended
ii. Just need intent to kill a person, not a specific person
iii. If crime derived in terms of KNOWN ID of V, no intent to transfer, D doesn’t have req mental state?
IV. MPC Mental States – 2.02
a. Purposely – conscious objective to engage in conduct of that nature/cause such result
i. For attendant circumstances – aware of risk of circumstance or believe/hope they exist
b. Knowingly – aware that conduct is of that nature or that such circumstance exist AND
i. if element involves result, aware that it is practically certain result will occur
c. Recklessly – consciously disregard substantial/unjustifiable risk that material element exists/will result
i. Subjective – how D honestly believes things to be
ii. Need gross-deviation f/ standard of law-abider in D’s situation
d. Negligently – should be aware of substantial/unjustifiable risk
i. Failure to perceive risk is gross deviation f/ reasonable person in situation
e. Prescribed culpability applies to all material elements
f. If culpability no prescribed in law, use recklessness standard
i. DO NOT ASSUME SL
g. Willful blindness – knowledge requirement satisfied w/ knowledge of high probability
i. Heredia – drugs in check but she didn’t check
ii. Nations – underage g
ii. Legal = even accepting evidence, P’s theory didn’t add up to crime
iii. Remedy = D goes free, no retrial
b. Jury instruction – jury given wrong legal standard to apply
i. remedy = if error was prejudicial, reversal and retrial
c. Procedural error – trial run improperly, D’s rights violated
i. Remedy = same as jury instructions
d. Factual findings reversed if unreasonable
e. Legal holdings are reviewed de novo
f. Procedural appeals – if Q of law, de novo
i. if matter is within TC discretion, only review for abuse of discretion
HOMICIDE
I. Voluntary Murder – intent to kill, awareness death will result
a. Intent means either purposeful or knowing
b. Guthrie – D kills V in kitchen, but was there premeditation?
i. Premeditation –killing must be done after period of time for prior consideration
1. No fixed time, varies by circumstance
2. Individual must be fully conscious of intent, jury Q
ii. OLD = Clifford instruction – intention just needs to come into existence @ time of killings (but that means all intentional killings are premeditated)
c. Morrin – MI def = to think about beforehand, undisturbed by hot blood
d. Midgett – abuse eventually kills son
i. D only intended to further abuse son, not kill
1. Intent only came during drunken rage – not premeditation
e. KEY: premeditation = killing must not be product of hot blood
II. Voluntary manslaughter –intentional homicide done in sudden heat of passion
a. Need adequate provocation with no opportunity to cool
b. Rule of Provocation:
i. Adequate provocation
ii. Killing done in heat of passion
iii. Must have been sudden heat of passion – no time for passion to cool
iv. Casual connection b/w provocation, passion, and fatal act
c. Can words be adequate provocation? Girouard –NO, Holly – sometimes
i. Use reasonable person standard
d. Provocation and cooling time is Q for jury
e. Holly test:
i. D provoked into losing self-control AND
ii. Provocation was objectively adequate, meaning:
1. It was grave provocation
2. Losing control was reasonable/ordinary reaction to provocation
f. Criminal law can take personal characteristics into account, but it won’t take into account beliefs that are irreconcilable w/ fundamental values of our law
g. CRITICISMS OF VM – gendered conception, ignores personal difference b/w Ds
h. Reasonable man:
i. CL – purely objective, no individual characteristics
ii. Under HOLLY, individual traits are relevant to whether control was lost due to provocation and to the gravity of the provocation
1. Not relevant to whether D’s response was reasonable
iii. Morgan Smith – some individual characteristics- Q for jury
iv. MPC 210.3- individual traits/circumstances relevant to all aspects – up to jury to weigh
1. Idiosyncratic moral values don’t count
