Criminal Law Outline

Criminal law, Prof. Gabriel Mendlow, Fall 2013
 
·         Legality
o   GENERALLY No new common law crimes, no ex post facto liability
§  FORK EXCEPT IF removing an outdated constraint on liability.
§  FORK EXCEPT IF D didn’t morally rely on old law and D’s conduct malum in se
§  FORK BUT STILL IF Policy considerations override to change verdict (fetus punch abortion)
o   Void for vagueness
§  Start with the presumption that statute is constitutional. Then void for vagueness if…
§  FORK Plain reading does not allow ordinary citizens to understand what this statute prohibits
§  FORK Law authorizes discriminatory enforcement by police, gives police too much discretion 
§  FORK Law sweeps in innocent behavior, making that behavior a crime
o   Rule of Lenity [as last resort resolve in favor of D if court still has doubt about a statute’s ambiguous meaning] §  FORK Policy concerns come first – if court doesn’t want to change policy, defer to legislature
§  FORK Is behavior malum prohibitum, or malum in se? – sometimes the tail wags the dog on this
§  FORK Is the statute’s plain meaning, the way the public would understand it, misleading
§  FORK Cannons of construction
§  FORK Legislative history, amendments, relation to other sections
 
·         Actus Reus
o   Is there a voluntary act?
§  FORK INVOLUNTARY: reflex, convulsion, movement during unconsciousness, while sleeping (lady killing daughter case), during hypnosis, not with effort or determination of actor,
§  FORK VOLUNTARY: deep psych issue even if you can’t control it, habits, “I couldn’t help but ___,” having option of making a different choice, everything else
o   When will the timeline run, looking for a voluntary act?
§  FORK Malum in se, or foreseeable result even if unlikely – expand the timeline to get vol. act
§  FORK Malum prohibitum, or unforeseeable result, constrict the timeline to exclude act
o   FORK If no act, is there at least one voluntary omission, when there was a duty to act?
§  One has a duty to act…
·         When statute imposes a duty to care for another
·         Status relationship such as parent to child, step mother or step father, legal guardian, husband to wife, master to apprentice, ships master to crew and passengers, innkeeper to inebriated customer… BUT NOT boyfriends, girlfriends, or mistresses (though mistresses might fall under duty today… )
·         Contractual duty to care for another AND parent/guardian not present
·         Voluntarily assumed the care of another AND so secluded the helpless person as to prevent others from rendering aid
·         Creation of peril, e.g. pushing someone into a lake you have to try to rescue them,
·         Duty to control the conduct of another e.g. vicarious liability,
·         Duty of a property owner e.g., to provide emergency exits. 
 
 
·         Strict Liability crimes – no mens rea required for conviction
o   YES: sex crimes, crimes against minors, drug crimes. regulatory violations, public welfare statutes,
§  What do these have in common?
·         Regulatory
·         Malum prohibitum Morisette, abandoned shell casings.
·         Smaller penalty, not as harmful to D’s reputation
·         Safety of many people
·         Legislative intent
·         Cheapest cost avoider – D can get information, P consumer can not. Balint, sale illegal drug; Dotterweich, shipment of mislabeled medicine.
§  BUT SOMETIMES NOT SL WHEN…
·         D had NO REASONABLE  way of getting information, information wasn’t public knowledge, D’s behavior was malum prohibitum, and there wasn’t a risk of harm to a great number of people. Staples, unknown that it was a machine gun. Guminga, sale of alcohol to minor owner not guilty. Case involving moving to Los Angeles and auto-notifying police b/c you’re a felon.
 
·         Statutory Mens Rea [required for all crimes with exception of strict liability crimes]           Element
@CL
@MPC
Correspondence principle?
Generally, no.
 
How far will the modifying mens rea adverb run down the statute? Court will look to policy, malum category, etc.
Yes. D must have applicable mens rea for every conduct, result, & attendant circumstance element unless otherwise specified.
Default mens rea required if statute silent?
 
 
 
No minimum. Court will look to policy to determine what mens rea is. There is lots of wiggle room, @CL there are many mens rea possibilities, falling into these general categories, which can still vary significant from @MPC view.
 
Recklessness at minimum.
Concurrence?
Mens rea must be at the same time as, or motivate, the actus reus
Mens rea must be at the same time as, or motivate, the actus reus
Intent / Purpose
Intent to do kind of harm done, knowledge or hope of attendant circumstances.
-Purpose was to engage in conduct
-Purpose was to cause a result, even if that result is conditioned on some other fact, unless that fact negates mens rea
-Awareness or belief of high probability that attendant circumstances exist, or the hope that they exist
 
Knowledge
Knowledge of conduct, knowledge or substantial certainty of result
 
-Awareness of conduct,
-Awareness that it is practically certain that conduct will cause a result
-Awareness or belief of high probability that attendant circumstances exist, or the hope that they exist
 
(Willful blindness)
D has awareness of high probability of the existence of a fact, but refrained from finding out because wanted ability to deny knowledge.
 
Must take affirmative action to avoid learning the truth
D is aware of a high probability of the existence of a fact, unless D actually believes that it does not exist
 
Does not require affirmative action to avoid learning the truth
 
Recklessness
Recklessness, disregard of substantial risk of harm (FORK conscious disregard, or not?)
 
@CL Opaque recklessness = realizing that there is some risk but not realizing how great the risk is
-Conscious disregard
-Substantial and unjustifiable risk that, considering circumstances known to D, is
-A gross deviation from standard of care that reasonable person would observe in the situation
 
Negligence
Negligence, should have known of substantial risk of harm
(FORK criminal negligence v. civil?)
 
@CL some courts use civil recklessness standard (failure to exercise reasonably care under the circumstances) but some use criminal recklessness standard. Line is blurred.
-D should have been, but was not, aware of…
-Substantial and unjustifiable risk that, considering circumstances known to D, is
-A gross deviation from standard of care that reasonable person would observe in the situation
 
 
·         Causation [cause in fact and proximate cause both required & cannot be an independent intervening act] o   Cause in fact
§  “But for” cause. Direct causation = only but for cause, concurrent causation = two or more but for causes (a concurrent cause does not constitute an intervening act). Montoya, D drove victim who had been shot by someone else to the middle of nowhere, let him die. Didn’t meet “but for.” Though it was malum in se, guy we really wanted to punish was the guy who shot the victim. (Why not punish both though?)
o   Proximate cause
§  D either (1) intended result or FORK (2) result was reasonably foreseeable (@CL) / FORK not too remote or accidental (@MPC)
§  FORK Depends on how generally or specifically you want to characterize the result – tail can often wag the dog here. If malum in se, characterize result generally, i.e. a cop died. If malum prohibitum, characterize the result specifically, i.e. the exact causal mechanism of a factory fire. Acosta, helicopters. Warner-Lambert, factory fire executives not guilty b/c not exact causal mechanism. Shabazz, stabbing death but doctors negligent and D still liable. Arzon, 1 fire started but independent fire kills and D still liable.
o   Intervening act doctrine
§  FORK If actor, with voluntary, free-willed, not product of irresponsibility caused by defendants action, breaks the chain, no liability. Otherwise, liability. Stephenson, KKK.
§  Encouraging suicide not enough for guilt if actor still free-willed, and made conscious choice to die, even if you give them the means. Campbell, guy had sex with his wife. Kevorkian suicide machines.
§  This throws foreseeability test out the window in some cases.
o   Dangerous games
§  FORK If a non-participant, innocent victim dies, likely to hold D responsible, even if D wasn’t the person who caused the death. McFadden, the other drag racer and small child both died.
§  FORK If a participant in the game dies, courts split… drag racing example vs. Russian roulette example.
·         If D encouraged game, D more likely to be responsible; Atenero, D agreed to participate in Russian roulet