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Criminal Law
University of Mississippi School of Law
Hoffheimer, Michael

Criminal Law
Professor Hoffheimer
Spring 2002
I. Basic Culpability Doctrines
            Part I: The Traditional Concepts
A. Sources of Law – Always ask yourself what the source of legal authority is.
§         Common Law
o        Historical sense – the English origins of a law
o        Development of law in American jurisdictions
§         Model Penal Code
o        Developed by thinkers who felt that there was enough of a consensus to hammer out a standard
o        Never intended to be adopted verbatim; it’s more of a suggestion
o        No state has ever adopted the MPC from beginning to end
o        It is not the Common Law
o        Many states have adopted portions of the MPC into their law; MS has not
§         MS Law
B. Purpose of Criminal Law
§         The thing that is distinctive about criminal law is that it is designed to punish the offender.
§         Four rationalizations for punishing the offender:
1.      Incapacitation – theory for neutralizing people who might do harm butare not necessarily morally blameworthy (e.g. the lady who was put in Parchman because she had TB and refused to get help).
2.      Retribution – getting even with those who have caused harm touches an emotional need to fire back at someone. 
§         The problem:
o        The “got you last” effect
o        Sometimes retribution is not available (e.g. when someone commits suicide)
o        Sometimes retribution would create another wrong (e.g. torturing someone for what they did wrong)
3.      Deterrence – discouraging a certain type of behavior
§         Specific Deterrence – deterring a particular individual from doing something wrong (e.g. we don’t want Bob robbing the Kroger gas station again)
§         General Deterrence – deterring the general public from doing something wrong by punishing one person
§         The Problem:
o        We don’t know how effective it is.
o        What we do know is that, to some degree, the effect of deterrence seems to be greater based on how great the punishment is. However, juries are more reluctant to enforce more severe punishments.
4.      Rehabilitation – trying to deter someone from committing crimes by attempting to give their soul a makeover. 
§         The Problem:
o        We’re not sure that it works.
o        Some adults might feel that they’re not being treated with dignity.
C. Some Criminal Law-Related Terms
§         Habeas Corpus – civil procedure to test the legality of someone’s confinement. In the United States, it prevents Congress from suspending an inquiry into someone’s confinement.
§         Bill of Attainder – special legislative act providing capital punishment without a trial for a person guilty of a high offense such as treason or a felony; prohibited by the Constitution.
§         Treason – attempting to overthrow the government of the state to which one owes allegiance, either by making war or materially supporting its enemies
§         Bill of Rights – defines the situations in which a politically organized society will permit free, spontaneous, and individual activity, and guaranteeing that government power will not be used in certain ways
§         Corpus Delecti – “the body of the crime,” does not mean that there must be a dead body in evidence. It refers to:
o        The material or substance upon which a crime was committed (e.g. a body, house, etc.)
o        The substantive fact of crime; evidence of act and agency.
D. The Stages of Criminal Procedure
1.      There’s a crime that someone claims has been committed
2.      Leads to an arrest
3.      Initial appearance
o        Opportunity to form a charge
o        See if bail is a possibility
4.      Preliminary hearing
o        Judge must determine if there is a probable cause over which the grand jury might bind the accused
5.      Grand Jury
o        Must decide if there will be an indictment (i.e. a formal charge)
6.      Arraignment
o        D is brought into the court and read the indictment
o        D enters a plea (e.g. guilty, not guilty)
7.      Trial
o        Jury must swear to return a true verdict
o        Right to a jury trial may be waived, and then there is a bench trial
o        The critical point in the case is when the judge gives instructions to the jury
o        After instructions, jury finds a verdict
o        After verdict, sentencing
§         If you’re the D, it would be preferable to have some distance of time between the verdict and the sentencing. That way, they’ll have a distance between hearing the victims testify about how angry they are and deciding what to do with the perpetrator of the crime.
§         If you choose to appeal, remember that you file your appeal in the county trial court.
E. The Common Law Approach to Criminal Law
§         Criminal Law in MS: MS follows the Common Law approach.
§         Elements – When you have several different elements of a crime:
o        They must all be proven with evidence in order to convict someone of the crime.
§         Under US law, due process requires the element to be proven beyond a reasonable doubt.
o        Furthermore, the jury must be properly instructed on each element
o        How it works:
§         E.g. in Faulkner, three of the elements of the crime were setting fire, setting fire maliciously, and doing so to a ship. 
§         If someone sets fire to a dock, or does it accidentally, then they are not guilty of that crime.
§         Mens Rea (intent): There must be a “culpable state of mind.” 
o        Words that have been used (sometimes confusingly) to describe mens rea: maliciously, willfully, feloniously
o        U.S. v. Yermian: There must be mens rea with every criminal conviction unless it’s a jurisdictional question.
§         E.g. you may have to “knowingly” and “willfully” make false statements, but you do not have to “knowingly” and “willfully” do so within the jurisdiction of the federal government in order to be convicted of the jurisdictional element of the crime.
§         Actus reus: An accused must have committed a criminal act to be convicted; the law does not punish thoughts that are not acted out.
o        The act normally consists of a prohibited physical act, but it may consist of an omission where there is a duty to act.
§         Mens rea established traditionally with one of three states of mind:
o        General intent: the volitional doing of the prohibited act
§         E.g. recklessness (involving actual awareness of a risk and the culpable taking of that risk).
o        Specific intent: requires some intent to do something more than merely the proscribed act; the intent to accomplish the precise criminal act with which one is later charged
§         E.g. robbery, assault, burglary, forgery, etc.
§         General Rule for Specific Intent: An honest and reasonable mistake of fact is a defense because there is a mental element that attaches to all of the elements of defense.
·         Majority Exception: Statutory rape
o        Criminal Negligence: involves a gross breach of a duty to care
§         Voluntary Intoxication:
o        The Rule: Voluntary intoxication is a defense to crimes of specific intent but not to crimes of general intent.
§         The Problem with this Exception: No one has been able to really explain why this distinction makes sense, or even how we are to tell the difference between specific and general intent.
§         The Solution: Many modern codes, and the Model Penal Code, have abandoned the general/specific distinction, and instead set forth the precise mental state required for each element of each crime.
o        Voluntary Intoxication in MS (from McDaniel v. State): It is not available as a defense if:
1.      The defendant was able to tell the difference between right and wrong, or
2.      The defendant voluntarily prevents himself from distinguishing from right and wrong by getting drunk
In other words, in MS, voluntary intoxication is almost never going to be a defense to crime.
F. Mistake of Law
§         Generally no defense: as a general rule, “mistake of law is no defense.” More precisely, this means that the fact that the defendant mistakenly believes that no statute makes his conduct a crime does not furnish a defense.
o        Example: Defendant, who is retarded, does not realize that unconsented-to intercourse is a crime. Defendant has unconsented-to intercourse with the victim. Defendant’s ignorance that unconsented-to intercourse is a crime will not be a defense; so long as defendant intended the act of intercourse while knowing that the victim did not consent, he is guilty.
o        No “reasonable mistake” exception: So long as the crime is not itself defined in a way that makes defendant’s guilty knowledge a prerequisite, there is usually no “reasonable mistake” exception to the “mistake of law is no defense” rule.
§         It is important to remember that the oft-stated rule, “Ignorance of the law is no excuse,” really only means “Ignorance that a statute makes one’s conduct a crime is no excuse.” A mistake of law as to some collateral fact may negative the required mental state, just as a mistake of fact may do so.
o        Example: D reasonably believes that he has been divorced from W, his first wife, but in fact the “divorce” is an invalid foreign decree, which is not recognized under local law. D then marries V. D’s “mistake of law” about the enforceability of the prior divorce will negative the intent needed for bigamy. 
§         However, if he’s married to five women, but isn’t aware that his state has an anti-bigamy law; he has no defense of ignorance.
§         Innocent or Passive Conduct: A person will probably not be convicted of a crime when it is entirely innocent or passive (i.e. they haven’t done something that, like other criminal acts, should put them on notice, Lambert).
§         Unclear Statutes: How the court construes criminal statutes that are ambiguous:
o        “Rule of Lenity” – principle that ambiguous criminal statutes should be construed in favor of the defendant to require some type of mens rea.
§         Under this rule, there is a requirement of mens rea unless the crime at issue is a strict liability crime.
o        The Problem – When the legislature doesn’t specify what the required mental element for the crime is, the result is courtroom battles over what mental element is required.
§         Extraordinary cases of mistake of law dealing with mental element:
o        Long: Ignorance of the law is allowed when a man’s lawyer tells him that his divorce is valid in another state and the man unknowingly commits bigamy.
o        Erhlichman: Someone who has been “authorized” by the president to do something illegal is not excused for thinking that the president had the authority to request such a thing.
Part II: Distinguishing between Malum Prohibitum and Mal in Se Crimes
A. Malum prohibitum vs. mal in se
§         Malum prohibitum – a crime that may not be morally wrong, and is not dangerous in itself, but violates a public welfare regulation
o        Most of these came about in the last century and a half since most of our new areas of legislative activity took place after the Civil War.
o        No culpable mental state is required for these types of crimes.
§         Mal in se – a crime that is considered morally wrong, has traditionally been considered morally wrong, and is dangerous in itself
o        A culpable mental state is required for these types of crimes.
§         Who would you rather defend? A client who is guilty of a crime that is mal in se because in that case, the state would be required to prove more in order for your client to be convicted.
B. Criminal Intent and Silent Statutes – Balint and Morissette approaches:
§         Balint: Man convicted of selling a substance that had just been prohibited because he didn’t fill out the appropriate tax form before selling it. Court determined that it would frustrate legislative purposes to require mens rea for the crime. After Balint, prosecutors had the idea that unless there was a specific mens rea requirement, courts were going to rule in their favor.
§         Morissette: Case where the man recycled the bomb casings for money, violating a federal law against knowingly stealing and converting U.S. property. The Court says some type of mens rea is required.
o        Court uses Morissette to clarify: Court says that Balint only applies to public welfare cases (i.e. offenses adopted for the public good).
§         E.g. dumping trash in the ocean, selling bad milk, selling cocaine de

b.      A duty to perform the omitted act is otherwise imposed by law
4.      Possession is an act, within the meaning of this Section, if the possessor knowingly procured or received the thing possessed or was aware of his control of it for a sufficient period to have been able to terminate his possession.
D. § 2.02 General Requirements of Culpability
1.      Minimum Requirements for Culpability: a person isn’t guilty of an offense unless he acted purposely, knowingly, recklessly or negligently, as the law may require, with respect to each material element.
o        Note: Strict liability only applies to non-criminal “violations,” which are punished merely by financial penalties. There is no criminal strict liability (I assume that statutory rape is an exception to that assertion).
o        Note: This subsection provides that one must have the required degree of culpability with respect to each material element of the offense.
2.      Kinds of Culpability Defined: these replace traditional terms like “willfully” and “maliciously”
a.       Purposely. A person acts purposely with respect to a material element of an offense when:
i.       If the element involves the nature of his conduct or a result thereof, it is his conscious object to engage in conduct of that nature or to cause such a result; and
ii.     If the element involves the attendant circumstances, he is aware of the existence of such circumstances, or he believes or hopes that they exist.
b.      Knowingly. A person acts knowingly with respect to a material element of an offense when:
i.       If the element involves the nature of his conduct or the attendant circumstances, he is aware that his conduct is of that nature or that such circumstances exist; and
ii.     If the element involves a result of his conduct, he is aware that it is practically certain that his conduct will cause such a result
§         Note: The first two are easiest because they mean what they sound like. 
c.       Recklessly. A person acts recklessly with respect to a material element of an offense when he consciously disregards a substantial and unjustifiable risk that the material element exists or will result from his conduct. The risk must be of such a nature and degree that, considering the nature and purpose of the actor’s conduct and the circumstances known to him, its disregard involves a gross deviation from the standard of conduct that a law-abiding person would observe in the actor’s situation.
§         Note: This element involves two standards:
§         Objective: Substantial and unjustifiable and gross deviation from the standard of law abiding persons.
§         Subjective: Actual awareness, conscious disregard
d.      Negligently. A person acts negligently with respect to a material element of an offense when he should be aware of a substantial and unjustifiable risk that the material element exists or will result from his conduct. The risk must be of such a nature and degree that the actor’s failure to perceive it involves a gross deviation from the standard of care that a reasonable person would observe in the actor’s situation.
§         Note: Negligently is radically different than recklessly because it is entirely objective. Negligence involves the failure to perceive a risk of which one ought to have been aware. Recklessness involves a conscious creation of a risk.
§         Note: Recklessly and negligently have a different definition in criminal law than they do in other fields of law.
o        Illustration of the four types of culpability: A terrorist throws a bomb into the ambassador’s limousine, killing the ambassador, the ambassador’s butler, the driver, and a bystander in the street. The terrorist’s purpose was to kill the ambassador. He knew the bomb would also kill the butler (who was riding in the limo) but sincerely regretted this happening. He told a friend beforehand that he was aware that the bomb might possibly kill the driver, but he hoped the driver would survive. He never thought about the possibility that any bystanders might get injured or killed, but this possibility was sufficiently likely that he ought to have foreseen it.
o        The terrorist purposely killed the ambassador, knowingly killed the butler, recklessly killed the driver, and negligently killed the bystander.
o        A Common Mistake: it appears that each of these crimes is of a different degree and carries a different penalty. That’s not necessarily the case.  In fact, the MPC homicide provision punishes all killings as murder except that of the bystander.
3.      Culpability Required Unless Otherwise Provided. If a material element is not laid down by law, the element is established if the person acted purposefully, knowingly, or recklessly.
Culpability Requirement Applies to All Material Elements. If the law defines the culpability requirement for an offense and doesn’t distinguish between the required culpability for each individual element, then that culpability applies to all of the elements unless a contrary purpose plainly