Professor Christopher R. Green – Criminal Law – Fall 2012
Introduction
· Criminal Law: is this behavior criminal, or not?
o Most criminal law distinguishes misbehavior from non-misbehavior
§ More precisely, most criminal law distinguishes misbehavior that the criminal law aims to end from activity that it doesn’t
· What is criminal law?
o Some criminal law asses the severity of crime: how criminal the conduct actually is
§ E.g., death penalty, degrees of murder (e.g., provocation, heat of passion)
· The law here distinguishes bad-enough-to-be-heavily-penalized misbehavior from merely bad-enough-to-be-criminalized misbehavior
· The MAIN types of crimes:
o Offenses against person:
§ Murder, manslaughter, rape, robbery, assault, kidnapping
o Offenses against property:
§ Arson, burglary, larceny, auto theft (and robbery again)
o Other Crimes:
§ Drug crimes, prostitution, lots of crimes involving lying,
· Some articles of the constitution (4A/5A/6A) apply rules, like the exclusionary rule, that reduce the reliability of criminal proceeding for the sake of other interests
Chapter 1 – Purposes of Criminal Law
· Regina v. Dudley & Stephens (Eng. 1884) (pg 1) – Rule – No necessity defense for murder.
o [Following Class Summary]
§ Basic Holding: no necessity defense for murder.
· Court is fine setting unattainable standards; duty to die under certain circumstances.
§ Other Arguments for Prosecution:
· Lack of taking lots.
· Possible alternatives available
§ Main Defense arguments:
· They were in undeterrable condition
o Facts of caseà Four men in a raft after they’ve been shipwrecked, one was a cabin boy
§ After a long time without food, two of them kill the cabin boy; all 3 eat him to survive.
§ ∆s talked about drawing straws to determine who would be eaten, but probably would not have mattered anyway because it is NEVER OK TO CONSENT TO DEATH
o Holding/Ruleà No necessity defense for murder…
§ Judge ruled that killing the cabin boy have been necessary to preserve life, but in these circumstances, the men had a duty to die rather than kill.
§ Might be impossible to not succumb to temptation, but sometimes law sets standards we cannot reach.
o Main prosecution argumentsà
§ ∆s never draw straws, or some other equitable method of selection
§ Possible alternative other than cannibalism.
o Man Defense arguments –
§ ∆s were in undeterrable conditions.
· Probably works better as an affirmative excuse than a justification.
· Customs was accepting of the practice: Others before were not prosecuted for similar transgressions.
· Holmes (CCED Pa. 1842) p. 6 note d.
o Similar to Dudley & Stephens in that victims of a shipwreck were forced to choose who would live.
o Holmes is a bit different, however, because they pushed people into the water, as opposed to actually killing them, like in Dudley and Stephens.
§ Holmes might be more like defense of property – you don’t have the right to stay in the boat – than a case of direct killing.
· Similar arguments distinguish removing life support from euthanasia or assisted suicide.
· What about customs?
o Just because something was common practice does not necessarily mean it cannot be criminal.
§ In T.J. Hooper, Judge Learned Hand stated that even through “reasonable prudence” is often what is common, in some cases the custom may have lagged behind in the adoption of some some safety measure…[and] there are precautions so imperative that even their universal disregard will not excuse their omission.”
· Some standards of care are so important to human safety, that even if the custom is contrary, failure to adopt the standard of care is still criminal.
· But, in Hooper, the fact that everybody does it, is at least some indication that it’s not serious enough to be worth punishing.
· Prosecutorial Discretion:
o Generally, a selective prosecution claim is very hard to make today- only possible if there is evidence that the ∆ was purposefully singled out because of race or politics or something like that.
o But the doctrine of prosecutorial discretion is unsettling – some have suggested that prosecutors should have to show that there have been other people prosecuted in similar circumstances.
· Purposes of Punishment à
o Deterrence –
§ Has trouble with empirical data on whether people actually can be frightened away from committing crime.
o Retribution/Blame/Condemnation – The solemn condemnation of the community (generally considered the chief purpose of criminal law)
§ Declaring conducting to be criminal and imposing penalties is about the cognitive proclamation of the wrongness of the conduct.
o Incapacitation (Restraint) – Part of the purpose of prisons, but by itself it’s not enough to justify punishment.
§ The fact that someone might be inclined to commit crimes in the future is not enough to jail them; have to have actually committed crimes in past.
§ There is civil commitment for people who are dangers to themselves or others, but not just for garden-variety inclination to commit crimes.
o Rehabilitation – Makes most sense as an auxiliary of the expression of moral condemnation.
§ The idea is NOT to treat the criminal like he has a disease, but to try to change him by convincing him that what he did was wrong.
o The Hybrid Apprach – This view sees deterrence as an auxiliary of the expression of moral condemnation.
§ People don’t want to feel like a “criminal,” and that emotion will deter criminal acts.
§ Less about frightening ∆s away from crime than it is expressing the wrongness of a crime so that possible ∆s think it is “wrong” to do
§ Law works best when it’s reinforcing social no
statutory requirement to stop at red lights is mandatory. It is an absolute requirement to be in control of your car.
o Baker (Kan. 1977) hypo 2.2 p.20 – ∆’s defective cruise control forced him to accelerate over the speed limit. Forced to take keys out of ignition to get car to stop.
§ Holding: ∆ was in, or should have been, in absolute control of car, to may convict
· Martin (Ala. 1944) p.17 – ∆ convicted of statute criminalizing “appearing in a public place while drunk.”
o ∆ got drunk in private at home and a police officer was the one that took him into public
o Court’s holding: “appear” means voluntary appearance, so no conviction
· Time 1 voluntary choice – Time 2 involuntary
o Often the test of whether an act was “involuntary” involves looking at the voluntary actions that led to the “involuntary” criminal act.
§ The issue: Was the action at Time 1 sufficiently culpable/criminal to punish the ∆ for the Time 2 would-be crime, if not for involuntariness.
· If Time 1 action is sufficiently culpable than still liable for involuntary act.
· Fulcher(Wyo. 1981) p.20 –
o ∆ tells whacky story about being hit on the head. Says he must’ve been unconscious when he assaulted someone.
o Court ruled that unconsciousness (automatism) is a legitimate defense, different from insanity, but evidence from the case was insufficient for automatism.
§ Automatism (Black’s Def): Action or conduct occurring without will, purpose, or reasoned intention, such as sleepwalking; behavior carried out in a state of unconsciousness or mental dissociation without full awareness. • Automatism may be asserted as a defense to negate the requisite mental state of voluntariness for commission of a crime
· Cars & Unconsciousness
o Olsen – GUILTY/VOLUNTARY (Utah 1945) hypo 2.3 p.26: ∆ driving while drowsy, falls asleep and kills pedestrian.
§ ∆ convicted and judgment affirmed on appeal because voluntarily drove while drowsy.
o Decina (NY 1956) hypo 2.4 pg.26-27: ∆ has an epileptic seizure while driving
§ ∆’s conviction was confirmed b/c she knew of possibility of seizure
· 4-3 decision
o Starfield (Minn. 1992) hypo 2.5 p.27: ∆ was drunk and in driver’s seat in snowbank:
§ Court ruled the ∆ had control of the car b/c the car, without too much difficulty, might again be started.
