Joseph Kennedy
Criminal Law
Fall 2011
Sources of Criminal Law
1. Common Law
Developed by judges as they adjudicated cases
Codified in statutes
“Stare decisis” = ascription of binding legal authority to judicial precedent
So long as a court’s decision is not “unexpected and indefensible,” it has the power to broaden the reach of the criminal law
2. Statutory Law
Each state and the federal government is free to develop its own criminal statutes (within constitutional limits), and no jurisdiction is bound by another’s interpretation of its statute
Legislature dominates in defining crimes
Protection of citizens too important to leave to the gradual development by judges of the common law
Address many issues at one time and often use ambiguous language à subject to judicial interpretation
There can be no crime unless there is a statute prohibiting the conduct à courts can construe statutes either broadly or narrowly à broadens or narrows reach of statutory criminal law
Model Penal Code
Developed in 1962 by the American Law Institute
Intended as legislation for states to adopt or reject à adopted in whole or in part by over 35 states
Serves as guiding model for general goals of statutory clarification and transparency
3. Constitutional Law
Constitutional guarantees in Bill of Rights directly limit legislative policy
Legislatures may not infringe upon one’s “right of privacy” à unclear
Forbids both Congress and state legislatures from passing ex post facto criminal laws = statutes that criminalize acts that were innocent when done or that increase the severity of the crime or punishment after the facts à ensures legislature gives fair warning of criminal conduct and its consequences
Analysis of Criminal Liability
1. Legality
Almost all jurisdictions forbid punishment without a pre-established legislative definition of the crime
2. Burden of Proof
Presumption of innocence is assumed to be a requirement of due process
Determines which side gets the benefit of the doubt in disputed questions
Constitution requires prosecution has the burden of proof
Standard of proof is beyond a reasonable doubt
3. Statutory Interpretation
· When statute is ambiguous, courts look to the meanings of specific words, the structure of the statute, legislative intent.
· When a statute contains a common law term, the presumption is that the term retains common law meaning, absent a statutory definition to the contrary.
Just Punishment
Punishment is suffering (1) purposely inflicted (2) by the state (3) because one of its laws was violated
Individual victim is not relevant, not required in criminal system à the victim is the state
Leading justifications for criminal punishment:
1. Retribution
Punishment is justified on grounds that wrongdoing merits punishment
Holds society has a moral obligation to punish criminals
Fault is a retributive concept
Harm-based
Eye for an eye
2. Utilitarianism
Bygones are bygones and only future consequences are material to present decisions à we should only hurt criminals if some good can be achieved by that act
This “good” is the prevention and reduction of crime
Deterrence = threaten potential criminals with a penalty serious enough to dissuade them from acting
Pains threatened must be greater than pleasure potential criminal thinks he will attain by committing crime
Incapacitation = prevent those who have rejected important social norms and thereby demonstrated their willingness to continue to do so in the future from reoffending
Rehabilitation = holds offenders can be changed into non-offenders if given proper treatment
Can be dark concept à lock “damaged goods” up because we’re afraid of them
The Structure of Criminal Law
The guilty hand moved by the guilty mind sometimes causing a bad result in the absence of justification or excuse
1. The Guilty Hand
Conduct element of offense
Part of actus reus
Doing part à required for crime
2. The Guilty Mind
Mental state à relied on by criminal law to determine if crimes occurred and distinguish bad from worse crimes
Mens rea
3. Moved By
Concurrence between guilty hand and guilty mind required for crime
Requires intent to be concurrent with action(s), not subsequent to
Guilty mind puts guilty hand in action
4. Sometimes Causing A Bad Result
Majority of crimes don’t require a result, just conduct + mental state à bad result only sometimes required (result crimes)
Two additional elements of result crimes:
1. Result must occur
2. Result must be caused by guilty hand
Ex. Homicide is a result crime
Defenses
Specific: one of the elements is missing
General: justifications or excuses that negate guilty despite all elements being present
Justifications – society wanted you to do what you did (ex. self defense)
Excuses – society didn’t want you to do what you did, but you’re excused from criminal responsibility anyway (ex. insanity)
Sentence applies to…
Any crime you can think of
Inchoate crimes such as solicitation, attempt, and conspiracy
Complicity doctrine
The Guilty Hand
One necessary element of a criminal offense is an actus reus, or bad, voluntary act
Criminal law does not punish thoughts without action
In Proctor v. State – Proctor charged with keeping of a place with the intent to sell alcohol à the keeping of a place is a lawful act, having illegal thoughts is innocent à the legislature cannot couple two legal acts to create a crime;
Proctor’s intent was unexecuted, common law principles require an overt act à law in question fails to combine bad intent with an overt act
Crime requires either a voluntary physical act or an omission where there is a legal duty to act
Voluntary Act
ble for not feeding child
MPC is consistent with common law regarding omissions
Liability based on omission (§ 201(3)):
1. If law defining the offense provides for it
2. If the duty to act is otherwise imposed by law
Civil law (torts or contract law)
Possession
MPC Definition = “An act…if the possessor knowingly procured or received the thing possessed or was aware of his control thereof for a sufficient period to have been able to terminate his possession.” (§ 201(4))
Actual Possession
Lay definition of possession
Constructive Possession
1. Power to exercise dominion or control, and
2. Intention to exercise dominion or control
In United States v. Maldonado – Defendant deemed to possess cocaine, though he never saw or touched it, because possessor gave up exclusive control when he agreed to leave it in defendant’s hotel room à joint constructive possession
Includes attempts to hide or destroy material
Includes the power to copy or destroy material
In U.S. v. Tucker – the ability to copy and manipulate computer images determined one possessed those images
There are different approaches to guns, drugs, and porn
In U.S. v. Teemer – court decided a felon with a gun in his hand even for a second (to take from child and lock up) is guilty of possession because a gun is immediately dangerous
Accessing vs. Possessing
In State v. Barger – court ruled one must search for and find images to possess them (incorporates mental state) à “accessing incorporeal image” is not possession, it is like looking at displays in a museum
Prohibition of Status Crimes
Status is not an act
In Robinson v. California – Robinson was convicted under a California statute that made it an offense for a person to “be addicted to the use of narcotics” à SCOTUS struck down the statute on Eighth and Fourteenth Amendment grounds, held that although a legislature may use criminal sanctions against specific acts associated with narcotics addiction, e.g., the unauthorized manufacture, sale, purchase, or possession of narcotics, it could not criminalize the status of being an addict à the Court analogized to other illnesses.
There must be an act to prosecute, per Powell v. Texas
