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Criminal Law
University of Mississippi School of Law
Davis, Samuel M.

Criminal Law Outline


Spring 2012

Actus Reus

● Idea that people cannot deserve punishment for bad desire but only for failing to resist them. Punishment should be limited to failures of self-control. Act or omission.

Act Requirement

● An intent, so long as unexecuted, amounts merely to a thought, and is not subject to punishment. There must be an overt act in connection with the unlawful intent.

○ inability to “search the heart or facts regarding the intention of the mind”

● It is essential that the government only have the power to punish for what people do, not who they are

● There exists an idea of locus poenitentiae or point of no return from which external constraints imposed

An Omission must

● be made expressly sufficient by the law defining an offense OR

● a duty to perform the act comprised by law (4 types)

○ Where a statute imposes a duty to care for another

○ Where one stands in a certain relationship status to another

○ Where one has assumed a contractual duty to care for another

○ Where one has voluntarily assumed care of another and secluded the helpless person to prevent aid

To be convicted a prosecutor must establish a legal duty to act.

Requirement of Voluntariness

To be guilty of an offense a person’s actions must be a voluntary act or an omission to perform an act.

○ one must be physically capable of performing the voluntary act

Not voluntary acts

● reflex or convulsion

○ in cases where you have a prior history your harmful act can include a voluntary act creating that same risk, conscious and voluntary creation of risk and you will be held accountable

○ a defense of an involuntary action such as Automatism Defense, which is for the jury to decide, would not cause the person to be committed such as a mental illness defense

● bodily movement during unconsciousness or sleep

○ sleepwalking can be involuntary but difficult to prove

● conduct during hypnosis or resulting from hypnotic suggestion

● bodily movement not a product of the effort or determination of the actor

Prohibition of Status Crimes

A statute that makes the status of a person a criminal offense violates the 8th and 14th amendment against cruel and unusual punishment.

● It must have the effect of having a bare desire to commit a criminal act

● Does not prevent someone from being drunk in public, ex of not arresting on statute but voluntary act

● Pottinger case which made sleeping and eating in public illegal, SC saw as a criminalization of the status of being homeless, an act not seen as voluntary because it is a normal human action

Mens Rea (The Guilty Mind)

● At CL actions constituted a crime only if there was a union of act and wrongful intent.

● Modern courts recognize regulatory offenses enacted for protection of public safety/health are punishable despite the absence of culpability or criminal intent. Primary status is not punishment but regulation.

○ malum prohibitum: maintaining public policy, engagement at your own risk, typically misdemeanors

○ Acts so destructive of social order or where difficult to prove the act and show knowledge or intent

○ A type of SL for statutory offenses

○ Goal is to look at legislative intent, if it seemed regulatory or whether a mental state required

Elimination of criminal intent does not violate DP where

1. penalty is rather small

2. conviction does not gravely besmirch

a. Court especially hesitant under this if it is unknown to CL

Congress must require prosecution to prove D acted with degree of scienter otherwise person acting w/ innocent state of mind could be subjected to severe penalty and grave damage to his reputation.

Strict liability for a felony statute does not comport with due process.

Notice required before penalty suffered for mere failure to act. Where a person did not know of the duty and where there was no proof of the probability of such knowledge he may not be convicted consistent with DP.

● In some failure-to-act penalties the nature of them suggest the need to take an action or to reasonably investigate (being placed on notice), something in the nature of the activity should tell you.

Categories of Culpability

● Transferred intent: general intent to commit a crime sufficed to make offender liable for any harm caused

● Specific Intent: circumstances indicate offender desired the criminal consequences to follow his act/omission

● General Intent: circumstances indicate offender adverted to prescribed criminal consequences as reasonable certain to result from his act/omission

● Material Elements of an Offense

○ Conduct

○ Such attendant circumstances

○ Results of conduct

Elements of Culpability

1. Purposely: with respect to the nature of his conduct or a result there of if this is his conscious object to negage in conduct of that nature or to cause such a result

2. Knowingly: aware his conduct is of a nature and he is certain his conduct will cause such a result

3. Recklessly: conscious disregard of substantial and unjustifiable risk, a gross deviation from the standard of conduct that a law abiding person would observe in that actor’s situation

4. Negligently: should be aware of a substantial/unjustifiable risk, actor’ failure to perceive it involves a deviation from the standard of care a reasonable person would observe in that actor’s situation

5. SL Crimes: If intent level not listed then element is supplied

When one of the four culpability terms appears it is meant to apply to every element of an offense. For a legislature to create a SL crime they must show clear intention and must say so specifically. A statute may have different elements to require different culpabilities. ex-knowingly and unlawfully possess a drug and said drug weighs 625mg or more.

Mistake of Fact

Mistake as to a matter of fact is a defense if the mistake negates the mens rea required to establish a material element of the offense. Many courts require such a belief to be reasonable.

Point of mistake of fact defense is to avoid punishing those who are not morally blameworthy and because people will not be deterred from doing what they believe to be innocent acts.

Ignorance of fact may be a defense if that fact is necessary for someone to fit into a certain statute however this will not apply to whether someone believes they are in a certain jurisdiction or not.

As a general rule the criminal law does not require the knowledge that an act is illegal, wrong or blameworthy.

A D’s views about the validity of statutes are irrelevant to the issues of intentional or willfulness. A mistake as to the validity of a law is not a valid defense. ex-believing wages aren’t income, good faith mistake about facts that make up a violation of the law.

Capacity for Mens Rea

A D must not be prohibited from presenting evidence to contest an issue of culpability. This would create a presumption of culpability and go against innocent until proven guilty. An accused is protected against a conviction unless the prosecution establishes the requisite mens rea by proof beyond a reasonable doubt. It is a jury question.

Under CL intoxication was not a defense to criminal charges however it could be used to show absence of specific intent, did not apply to those with a general intent.

The new law allowed evidence of intoxication as a defense to crimes requiring specific but excludes evidence to crimes where only general intent needed.

● Idea of a legal policy better served by those consciously defying legal norms, person with no purpose or knowledge not as grave a threat

● Accused must then show he was so intoxicated that he did not have the intent to commit an offense, difficult standard to meet

● State v. Warren argues that as a matter of logic intoxication should also negate recklessness but as a matter of policy it doesn’t

The SC has determined that it is not unconstitutional to prevent a D from using proof of voluntary intoxication as a valid defense to a mens rea of a crime. It may be used to show whether there was premediatation or heat of passion.

But/For Causation

An act cannot be held to be the cause if that event would or could have occurred without it. Before murder could go before a jury it must be excluded the possibility that death was caused by another injury.

● there was another injury

● which may have reasonably caused the death

● injury cannot be shown to have caused the death, no but/for cause

Causation is vitally important because juries are likely to return severe verdicts w/ resentments aroused by infliction of serious injuries, based on the notion of blameworthiness, should be blameworthy of the crime

Proximate Cause: Foreseeability and Related Limitations

A cause, which in the natural and continuous sequence, produces the death, and without which the death would not have occurred. The D’s conduct must be the efficient cause, the cause that sets in motion the operation o

ility those felons may be liable for “abandoned and malignant heart” murder. (Narrow View)

● felon must directly kill rather than merely somehow causing death

● death be caused during commission of or in furtherance of the felony

○ “immediate flight” from a felony.

■ if homicide and felony occurred at the same location or not

■ if there is an interval of time between the commission of the felony and the homicide

■ whether culprits had possession of the fruits of the criminal activity

■ whether police or others were in close pursuit

■ whether criminals had reached a place of temporary safety

● person killed must be a non-participant

Some states have a merger rule where the felony murder rule does not include crimes that can be covered under a normal 1st degree murder conviction ex-assault, child abuse etc.

Variant of Felony Murder

● Misdemeanor Manslaughter: minor league variation of the felony murder rule, a misdemeanor which results in any death merits a manslaughter charge, court merely asks if the death resulted from the commission of a misdemeanor, MPC disagrees: dispenses with proof of culpability and imposes liability for a serious crime without reference to the actor’s state of mind

Capital Murder and the Death Penalty

Death Penalty is not considered cruel and unusual punishment under the 8th. It can be applied in a manner that is unconstitutional.

Guided Discretion: court conducts a separate sentencing hearing after the D is convicted of 1st degree/capital murder.

Sentencer then chooses death penalty or life imprisonment, balanced by balancing aggravating and mitigating factors

Eligibility Decision: trier of fact finds one aggravating circumstances at either the guilt or sentencing phase.

An aggravating circumstance may not

1. apply to every D convicted of murder

2. circumstances may not be unconstitutionally vague

Selection Decision: determines whether D should receive the death penalty and requires individualized determination on the basis of the character of the individual and the circumstances of the crime

Aggravating factors include

Murder by person in jail/parole/escapee/bail

Previously convicted of another 1st degree murder, or felony violence against that person

Knowingly created great risk of death to 2 or more persons

Aircraft pirate or bomber

Avoiding arrest/escaping custody

Committed for pecuniary gain, insurance

-some courts explain, might overlap

Tortuous to victim, unusually cruel

-problem with clarity of words

Any court official, attorney, judge, juror

Less than 17 or older than 65

Victim disabled or vulnerable

Likely to commit again

Committed during course of felony

Victim impact statements, emotional effects of murder on a family, victim’s personal characteristics

D has right to present mitigating factors listed by statute or not, concern over administering death penalty in spite of factors that call for a less severe penalty. A jury may determine weight given mitigating evidence may give it no weight.

Mitigating evidence must be about the D personally, not some more general factor or issue that could sway a jury to mercy (such as perceived pain during lethal injection, discrimination of race etc.)