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Criminal Law
University of South Carolina School of Law
Kuo, Susan S.

A. Nature of Criminal Law
1. Criminal law is separated from torts because it involves a “moral factor” that includes societal condemnation

B. Punishment
1. Definition: When an agent of the Government, pursuant to authority granted to the agent by virtue of the defendant’s criminal conviction, intentionally inflicts pain on the defendant or otherwise causes the defendant to sufer some consequence that is ordinarily considered unpleasant.
2. Punishment Theories
a. Retributivism:
i. “backward looking”
ii. Punishment is justified when it is deserved—criminal receive their “just deserts.” A wrongdoer should be punished for the crime, even if it does not have an effect on society’s net pain or pleasure.
iii. Deterrence is a bonus
iv. Punishment is a repayment of a criminal’s debt to society
b. Utilitarianism
i. “forward looking”
ii. Laws are supposed to maximize the net happiness of society. Both crime and punishment are unpleasant. The pain inflicted from punishment is justified when it results in a greater reduction in society’s net pain
iii. 4 main benefits of an individual’s punishment
· General deterrence
· Individual deterrence
· Risk management – remove criminals from society
· Reform criminals while they are in jail

C. Legality Principle: Prior written notice of the specific and clear offense is required for someone to be charged
1. Promotes
a. Fair notice – due process requires it
b. Fair application
c. Creation of offenses by legislature
2. Deters
a. Ex post facto laws – Keeler – dispute whether a fetus is a person – it isn’t; court needs to have law in place b/f it can punish someone for breaking it
b. Common law offenses
c. Vague offenses

D. Statutory Interpretation
1. ConstitutionàStatutory LanguageàLegislative IntentàCommon Law
a. Foster – was the defendant “carrying” a firearm; or was he “using” it? “on or about his person”
2. Undefined terms in a statute are presumed to have their common law meaning
3. Rule of lenity—If the law is not clear, it should be interpreted as favorable to the defendant.
a. Common law recognizes this
b. MPC §1.02 (3) does not recognize this and dictates the law should be interpreted according to the legislature’s intent if it is vague

A. Background
1. The actus reus is the “external” part of the crime
2. The law requires that for there to be a crime there has to be an act—some physical manifestation (not just mere wrongful thoughts)
3. The actus is a voluntary act or an omission to act (if there is a prior legal duty to act) that causes the reus—the social harm
4. Actus reus = the conduct + result + attendant circumstances required for the commission of the crime
5. What is not actus reus
a. Thoughts
b. Involuntary acts – sleepwalking
c. omissions

B. Conduct—the Actus
1. Voluntary Act
a. All elements of the crime must be voluntary acts
b. Time framing: a “tactic” courts and lawyers can use to determine if the act was voluntary or not – did skydiver voluntarily land on White House if the wind pushed him there?
i. Martin v. State: Police arrested Martin at his home (where he was intoxicated) and took him to a public highway. Martin was charged with, “appearing in a public place in an intoxicated condition.”
· Broad time frame: He voluntarily became intoxicated
· Narrow time frame: His appearance at the public place was involuntary
ii. State v Utter: D had been drinking all day when his son approached him from behind as he walked into the room. Mr. Utter stabbed and killed his son; he claims his actions were a “conditioned response.” As a WWII veteran, he reacted violently twice before when he was approached from behind. A “conditioned response” brought on by voluntary actions is no defense. Evidence of the conditioned response should have been presented
· Broad time frame: His actions were brought about by his involuntary condition as a result of his service in WWII.
· Narrow time frame: His conditioned response was bought about by his voluntary intoxication
c. Model Penal Code—the act has to be more than a physical movement, it has to be “willed.” The MPC only makes voluntary acts criminal
d. Unconsciousness can be used as a defense to show the act was involuntary as long as the unconscious state was involuntary
2. Omissions
a. Omissions are “negative acts”
b. Omissions are inactions of a prior existing legal duty
i. Types of duties imposed:
· Statutory duties
· Duty based on a status relationship
· Contractual duty to care for another
· Voluntarily assuming to care for another and secluding the helpless person to prevent others from helping
· Creating a risk of harm to another (Ex. The woman who hit the homeless man with her car created the risk of harm to him and owed a legal duty to help him—which she neglected to do.
c. Legislatures are hesitant to create legal duties and crimes of omission because the legal system is based on maximizing individual freedom, and omissions dampen these individual freedoms.
· Difficult to prove culpability of omitter
· Difficult to draw line b/t one omitter and the other possible omitters
· Well-meaning bystanders can make matters worse
d. Beardsley – Man and woman drink, she takes morphine; man puts her in basement; court – there may be a moral duty but there is not a legal duty; this seems wrong – what about undertaking and secluding?

e condition
b. Willful blindness: When knowledge of the existence of a particular fact is an element of an offense, such knowledge is established if a person is aware of a high probability or its existence, unless he actually believes that it does not exist. (MPC § 2.02(7))

D. Statutory Interpretation
1. Common Law
a. Legislative History: If the statute is ambiguous as to a mens rea—the court may look to the legislative history
b. Sentence Structure: If the mens rea term is at the beginning of the statute, it is usually read to apply and modify the subsequent terms of the statute unless state otherwise or punctuation other interpretations. Mens rea terms are also usually not applied to attendant circumstances.
c. Rule of Lenity: When in doubt—go to the rule of lenity and interpret it in a light most favorable to the defendant
d. Absence of a Mens Rea Term: At a minimum—the general culpability definition is adopted
2. Model Penal Code
a. Legislative History: Legislature must specifically state if they do not want the mens rea term to apply to a particular element of the crime
b. Sentence Structure: The prosecution must prove the mens rea term to each material element of an offense unless the legislature specifies otherwise. (MPC § 2.02(4)).
c. Rule of Lenity: MPC does not recognize the rule of lenity—ambiguous statutes should be interpreted according to the legislature’s intent
d. Absence of a Mens Rea Term: If no mens rea term is present it must be proven that the actor did it at least recklessly, knowingly, or purposefully—cannot be proven by showing it was done negligently (MPC § 2.02(3))

E. Strict Liability
· No mens rea term is present or required (not even a culpability mens rea). The actus reus alone is sufficient to satisfy the requirements of the crime (Ex. Selling alcohol to minors)
· Mistakes of fact are not allowed for strict liability offenses

1. Common Law
a. Conditions on when strict liability is allowed:
i. The conduct that is regulated is typically not morally wrongful, but is in some way dangerous (Ex. Selling alcohol to minors)
ii. The maximum punishment for the conduct is a fine or minor imprisonment