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

Criminal Law Outline
Professor Henderson
Spring 2017
Theories of Punishment
Definition: Punishment to maximize social utility and happiness
Teleological – Purposeful Development Theory
General Deterrence – Punishment that deters the community at large from acting similarly
Intimidation – Stick (it hurts, and I don’t want to hurt)
Norm Reinforcement – Do what others do
Education – Learning what is wrong
Specific Deterrence – Discourages that specific actor from future conduct
Remove the ability to hurt people
Any attempt to cure or reform the wrongdoer
This however conflicts with the Retributivist theory of Least Eligibility
Least Eligibility – The best off criminal should be worse of than the worst off law abiding citizen
Tit for Tat – Prevent private retaliation or revenge
Future Punishment
Serves the purpose of protecting the future
Proportionality – Punishment must be enough to outweigh profit of criminal activity
The greater the crime, the greater the expense
Encourages criminal to choose a” lesser harm” because he doesn’t want to pay the greater cost
Encourages criminal to do no more mischief than necessary to accomplish his purpose
Punishment shouldn’t be more than is necessary to accomplish the last four goals
Retributivism – Punishment when deserved based on morality – punishment should be in proportion to the wrongdoing
Deontological – Theory of Ethics and Morality
Past – Punishment is a consequence of past action regardless of their effect on the future
Ordinality – Ordering wrongs by how wrong they are
Cardinality – Metric of Punishment (days in prison)
Limitation – No undeserved punishment
Autonomy – We should be able to do what we want until what we want affects what someone else wants
Burden of Proof
Must prove the elements of the crime beyond a reasonable doubt
Burden of Production
Enough evidence to get the issue to the trier of fact, or there is a directed verdict
Burden of Persuasion
Be convincing
May have to prove an affirmative defense by a preponderance of evidence (51%)
Burden of Production – Self-Defense
Burden of Persuasion – Insanity
Innocence is presumed
Rebuttable Presumptions
Presumed fact is based on a proven fact, but can be rebutted by contrary evidence
Shifts the burden of persuasion to a defendant for a certain fact
Mandatory rebuttal presumptions are often unconstitutional because they make the defendant responsible to prove/disprove an element
Irrebuttable Presumptions – Conclusive
Also unconstitutional when the pertain to an element of the offense
Permissive Presumptions – Inferences
Logical connection between two facts – one more likely than not proves other
Example: If I point a loaded gun at you and pull the trigger, it can be inferred that I intend to kill you
Criminal Offense = Actus reus (act requirement) + Mens rea (mental requirement)
Actus reus
Actus reus – A voluntary act that causes social harm – people are not punished for mere thought
Voluntary Act – A willed muscular contraction
Involuntary – Stick in hand (if someone grabs your arm and hits someone with it)
People v. Newton
There has to be a voluntary act for a criminal offense
Martin v. State
Police took a drunk guy into the street, the charged him with public drunkenness
Martin did not voluntarily appear in public
All acts must be voluntary
People v. Grant
Guy said he attacked a police office involuntarily because of seizure brought on by alcohol consumption
Court ruled alcohol consumption could count as a voluntary act if you have prior knowledge that it leads to such involuntary acts
If Grant was having a seizure, he would not have been guilty
Automatism is not involuntary
Social Harm – Negation, endangering, or destruction of an individual, group, or state interest, which was deemed socially valuable — this is often the result prescribed by the statute (Example: Murder proscribes causing death, but not the specific act that results in death)
Conduct Elements – When conduct itself is prohibited (driving, entering)
Result Elements – When the result is what is prohibited (the death of another human being)
Attendant Circumstances – Facts or conditions that must be present for an act to become a crime (age limitation on statutory rape)
You must punish conduct, not a status
Example: You can punish someone for being drunk, but you cannot punish someone for being an alcoholic
Robinson v. California
Is it a crime to be addicted to narcotics?
California statute made it a crime to be addicted to Heroin
Such statutes are unconstitutional because they do not punish an act
Powell v. T

tively make change to common law crimes
Rogers v. Tennessee
Courts can change common law rules, even to the detriment of criminals as long as the change is:
Foreseeable; and
Not unexpected
Mens rea
Regina v. Faulkner
Requirement of some level of mental culpability
If mens rea is an element of a crime, then having lesser culpability won’t suffice for conviction
In statute
If only one mens rea is listed, it will generally distribute to all elements of the statute unless a contrary intent appears
If the mens rea listed is after an element, it generally doesn’t distribute backwards
Common Law Categories of Intent
Wickedly, any moral culpable state of mind
Defendant intentionally committed the actus reus which is the social harm of the offense
Desire to cause social harm or knowledge that social harm is certain to follow
Of attendant circumstances, awareness, belief, or wilful blindness
Really ambiguous so must be analyzed in context
Knowing the elements/intention
Intentional violation of any legal duty
Intentional violation of a particular known legal duty
Criminal Negligence
A deviation from the standard of care that a reasonable person would have observed in the actor's situation
Unjustifiable risk of causing harm
Probability of Harm (P) x Gravity of Injury (L) < Burden (B) Foreseeability of gravity of harm Probability such harm will occur Burden on defendant from stopping risk Recklessness An actor disregards a substantial and unjustifiable risk of harm which he is aware of Malice Intentionally or recklessly causing the social harm of the offense Regina v. Cunningham Two Types of Intent General Crimes that only require some moral culpability Moral Culpability = Some Wrong Specific Requires a specific intent and nothing else will do