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Criminal Law
University of Oklahoma College of Law
Henderson, Stephen E.

Criminal Law
Spring 2014
Spectrum of Guilt:
·         Absolute certainty (100% certain)
·         Beyond a reasonable doubt (85-90% certain)
·         Clear & convincing (70% certain)
·         Preponderance (51% certain)
·         Probable cause (when you can get an arrest warrant)
·         Reasonable suspicion
·         Hunch
·         Absolutely suspicionless
Burden of production—burden to get the issue to the trier of fact
Burden of persuasion—how to convince the trier of fact
Retributivism—moral wrongdoing is punished
·         How much punishment:
o   Ordinality—ordering the crimes (scale of punishment)
o   Cardinality—what metric of punishment are we going to use for the crimes (how many days/months for each crime)
·         Limiting principle—No undeserved punishment
Utilitarianism—punish to maximize social utility and happiness (purposeful development)
·         Forward looking and economical
·         General deterrence:
o   Intimidation to the general society
o   Norm reinforcement (reinforce what is normal)
o   Education
o   Expected penalty = punishment x probability of being caught
§  The person will decide whether or not they want to commit a crime based the expected penalty.
§  Does the general public really use this equation?
·         Specific deterrence:
o   Intimidation to the individual
o   Incapacitation
o   Rehabilitation
§  The argument against rehabilitation is the principle of least eligibility:
·         The best off non-criminal is better off than the worst off non-criminal, the worst off non-criminal is better off than the best of criminal, and the best off criminal is better off than the worst criminal.
o   This scale is simply saying that rehabilitation won’t work.
·         Broken Window effect—relates to general deterrence (once people started smashing the cars windows, everyone joined in).
·         Tit for tat—a goal of utilitarian is to prevent this desire (prevent private retaliation)
·         Limiting principle—no needless punishment
Criminal Offense = Actus Reus (act requirement) + Mens Rea (mental requirement)
·         Actus Reus
o   Why require an act?
§  Retributive—you shouldn’t be punished for your thoughts
§  Empirical—we might not know what we thought
§  Utilitarian
·         Deterrence
·         Surveillance
·         Selective enforcement—selectively pick who to prosecute
·         First amendment—“Cannot regulate mere thought unaccompanied by conduct.” The court has ruled this with regard to the first amendment.
§  Autonomy—we should be able to do whatever we want, so long as those actions don’t fear with the autonomy of others.
o   Proctor v. State—affectively punishing a thought. They needed something more that was indicative of criminal intent rather buying a house with the intention to sell liquor out of that house.
o   Omissions:
§  Generally they are not going to criminalize inaction, similarly to “no duty to rescue” in criminal law.
§  Jones v. Unites States—There are at least 4 situations in which the failure to act may constitute a breach of legal duty: (1) where a statute imposes a duty to care for another, (2) where one stands in a certain status relationship to another, (3) where one has assumed a contractual duty to care for another, and (4) where one has assumed the care of another and so secluded the helpless person as to prevent others from rendering aid.
o   Possession:
§  Possession requires more than that something is on your person, it requires knowledge.
§  Possession is an act… it can be an omission (to dispossess).
§  MPC: “Possession is 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.”
§  United States v. Maldonado—Constructive possession—power and intent to exercise control. It is not actual possession, but it joint possession. He was in possession because it was constructive and joint possession.
§  State v. Casey–You are not responsible for the stuff some else has on them. However, when you know something is illegal, you can’t just leave it is your home because you’ll be liable for joint constructive possession. When someone comes to your home with something illegal, you don’t have constructive possession unless you have knowledge of the item.
§  Jenkins—You do not possess what is in people’s homes that you visit.
o   Voluntariness:
§  You not only need an act, you need a voluntary act.

t—It’s not a moral wrong, unless you know it’s a mental wrong.
§  Utilitarian argument—Without the knowledge that what you are doing is wrong there will be no deterrence.
§  The cost of requiring mens rea is that sometimes a person will have the mens rea but there is no way to prove it.
§  People v. Dillard—He was aware of all the elements except that the firearm was loaded. The courts decide that there is no mens rea required because it was a public welfare issue.
·         Public Welfare Offense Characteristics:
o   Difficult to prove mens rea
o   Punish neglect
o   Punish risk of harm
o   Not crimes at common law
o   Lower penalty
o   Mala prohibita–wrong because they are prohibited (opposed to mala in se—wrong in an of itself)
·         Liability for public welfare offense is pure strict liability because some elements require mens rea and some do not.
§  Morissette v. United States—If you have a statute that is silent on mens rea, then normally push mens rea in. The exception is if it is a public welfare offense, then you don’t apply mens rea.
§  United States v. Wulff—You apply strict liability and don’t write in a mens rea requirement because it is not a common law situation. You only write in a mens rea requirement in common law situation.
·         Rule of orderliness- If Panel A decides X and later Panel B decides Y, Panel C must decide X.
§  Lambert v. California—Lambert knew she wasn’t registered as a felon, but she didn’t know she was supposed to register. Lambert wins because the court says that it is fundamentally unfair not to give her notice at least in crimes that are mala prohibita.
§  United States v. Hutzell—Now, on ignorance of the law you almost always lose unless you have an extremely odd crime. To win you must have a legal duty of a highly unusual and unforeseeable nature.