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Criminal Law
University of Toledo School of Law
Harris, David A.

Criminal Law

I. Introduction

a. Criminal Process
i. Unlike civil actions, criminal actions are brought by the state, and there are 2 victims, the actual victim and society as a whole.
ii. State must prove all elements of its case beyond a reasonable doubt.
iii. Textual Sources of Criminal Law:
1. Judge made law (common law)
2. Statutory Law
3. Model Penal Code (MPC)
b. Theories of Punishment
i. Utilitarianism (forward looking)
1. Key focus is its deterrent effect; looks at the ends of punishment, not the means.
2. Aimed at deterrence and crime prevention in the future.
3. If the punishment doesn’t deter future acts then it is useless.
4. Focuses on society, not the individual.
5. Varieties:
a. Specific – Focuses on a specific D. If the D is put in jail, he cannot commit the crime. Also, after being put through a harsh reality and punishment, the D has less incentive to commit the crime again.
b. General – Other citizens and society at large will learn from the punishment of others.
6. Criticisms:
a. Unfair to use criminals as examples to the community.
b. Looks like the Scarlet Letter and shaming penalties.
c. Can be used to justify punishing an innocent person.
d. Assumes rational people will weigh the costs/benefits of a decision and be deterred.
ii. Retributive (backward looking)
1. “Eye for an eye”
2. Just desert.
3. Aimed to punish individuals for the crime they committed and make them pay their debt to society.
4. Focuses on the individual, not society.
5. Absolute proportionality between the crime and the punishment.
6. Can never justify convicting an innocent man.
7. Is justified even if it will not deter anyone in society from committing future crimes; solely about the individual for acts already committed.

8. Criticisms:
a. Focuses on the individual all the way to the point that it excludes society.
b. Fueled by hatred.
c. Inefficient (even the last person on earth should remain in jail to complete their punishment for the crimes they committed, even if society will come to an end because of it).
c. Legality
i. Requirement of Previously Defined Conduct
1. D can’t be convicted of a common law crime, only by statutes that are enacted into law. There are 2 key reasons for this: (*Morales – same applies for vague statutes).
a. D must be on notice of what is considered to be a criminal act (due process rights)
b. Don’t want to give judges too much discretion.
2. Also, much of this law making ability is designated for Congress. If they wanted something to be a law, they would legislate. The court’s job is to interpret the law.
ii. If both A/R and M/R, then ask:
1. Was the law in existence prior to the act?
a. NO Ex Post Facto laws or Judicial law making
i. Legislature CANNOT make laws that punish for past actions that were legal at the time.
ii. Due Process requirements – actor must have Notice & Fair Warning
iii. Rule of Lenity – All statutory ambiguities are construed in favor of the D.
d. Statutory Construction
i. Factors to look at:
1. Prior cases
2. Dictionary & Code definitions
3. Legislative Intent
4. Legislative History

II. Actus Reus (physical element)

a. General (3 possible elements)
i. Conduct Element (always present)
1. A voluntary act or omission
ii. Result Element (always present, often merges w/ conduct)
1. The harm that results or flows from the conduct
iii. Attendant Circumstance – A/C (not always present)
1. A condition that must be present in order for the conduct in question to constitute a crime
b. Voluntary Act
i. Action must be willed or subject to one’s conscience control.
ii. Utter
1. A father got drunk, had a conditioned response from being in the war, and killed his son. The court found that he voluntarily got drunk, thus converting his involuntary act into a voluntary one.
c. Omission
i. Just as voluntary acts constitute a conduct element of the actus reus, so do some voluntary omissions.
ii. Rule: You cannot be held liable for an omission unless a legal duty to act arises (mora

he kind of risk such that his disregard involves a GROSS DEVIATION FROM THE STANDARD of conduct that a law-abiding person would observe in the actor’s situation.
iv. Negligently:
1. He SHOULD HAVE BEEN AWARE of a substantial and unjustifiable risk that his conduct could lead to some result, but was not.
2. Kind of Risk = The kind of risk is of the nature and the degree that his failure to perceive it involves a GROSS DEVIATION FROM THE STANDARD of care that a reasonable person would observe in the actor’s situation.
d. Strict Liability
i. These offenses solely look at conduct, and do not involve a mens rea.
ii. 2 Types:
1. Public Welfare (Regulatory Offenses)
a. Usually involves inherently dangerous activity.
2. Statutory Rape
a. Somebody above the age of consent having sex with someone below the age of consent.
b. *When trying to discern if it should be a strict liability offense or not, consider inherent danger involved and the potential penalty faced. For a steep penalty or jail sentence, there is a higher level of proof, and thus a mens rea is required (not a strict liability). Often the statute will explicitly say it.
iii. Common Characteristics:
1. No harm need actually occur,
2. Offense does not involve conduct designed to harm a particular individual,
3. Underlying conduct is not necessarily immoral, but is sought to be controlled for public health or safety,
4. If public injury does occur, it is not necessarily due to the specific intentions of the individual,
5. Penalties that come along w/ conviction are relatively minor.
e. Mistake of Fact
i. Can be used as a defense to the required mens rea.