Select Page

Criminal Law
University of Toledo School of Law
Gilchrist, Gregory M.



Six basic elements for crimes:

1. Voluntary act or omission

2. [Harm] (not every one has this)

3. Mens Rea (i.e. purposely, knowingly, recklessly, negligently)

4. Actual Cause (if no actual cause, then done. Don’t need to go to prox cause)

5. Proximate Cause

· *will always have actual cause & prox cause w/ a crime of harm

6. Attendant circumstance

i. No one can be convicted, unless guilt has been proven to the level of:

1. Proof beyond a reasonable doubt

a. Presumption of innocence

b. A lot higher standard of proof

c. Why? Loss of liberty, stigma, confidence in system that people will not be falsely accused.

d. Definition: “near certitude of guilt” – variety of instructions

e. Instructions: jury instructions often sway cases (almost always in crim law). A jury may believe that D is guilty, but prosecutor has not proven guilt beyond a reasonable doubt

· Truth instruction: sounds more like a preponderance of evidence (lower std)

ii. Appeal claim of “Insufficiency of Evidence” = claim that Prosecutor did not overcome the presumption of innocence. The relevant inquiry for judge is:

1. Whether, after viewing all the evidence in light most favorable to the prosecution, any rational trier of fact could have found the essential elements of the crime to be proven beyond a reasonable doubt

iii. Jury nullification- power of the jury, but NOT a right

a. Jury acquits D even though they believe facts and D has committed a crime

i. Jury may disagree with law, sympathize with D, etc.

ii. Why do juries nullify? Compassion, no utility in punishing D, send a message regarding views re the law


A. Penal Theories in Action

i. TWO main theories of Why we punish:

1) Utilitarian – punishment is only justified on the basis that it will reduce the pain of crime that would otherwise occur, “greatest good for the greatest number”

1. Purpose of laws is to augment the total happiness of the community

2. “Forward Looking”

3. Beneficial consequences of punishment:

a. General deterrence- punishment of one to serve as a notice to others

b. Specific/Individual deterrence- prevent D from committing crimes in the future

c. Incapacitation and other forms of risk management-prison can be used to remove person from society, so they don’t commit crime again

d. Reform/Rehabilitation- punishment to reform D to lessen that he will commit crimes in the future

4. Criticisms – punishment of innocent ever justifiable?

ii. Deterrence- important in terms of justifying punishment, but no real evidence that it actually works

a. Deterrence turns on two calculations:

1. How much time you’re going to get, and

2. How likely you think you’re going to get convicted

2) Retributive – Punish the morally culpable; if you commit a crime, you deserve punishment, justified on being the right thing to do (backward looking)

1. Negative retributivism- moral culpability gives reason; innocent should never be punished; Can only punish those who deserve it

2. Positive retributivism – have to punish, even if no deterrent; if person deserves punishment, then they should be punished

3. Assaultive retribution – punish because we hate criminals

4. Retributive punishment is the defeat of the wrongdoer at the hands of the victim that symbolizes the correct relative value of wrongdoer and victim.

B. Proportionality of Punishment – How much punishment is appropriate?

i. Proportionality of Punishment – Constitutional Principles

1) 8th Amendment: Prohibition against cruel and unusual punishment, that carries w/ it a principle that punishment should not be greatly disproportionate to the offense charged

ii. TWO RULES FOR PROPORTIONALITY TEST: When punishment is excessive:

1. Death Penalty Cases: = Gravity of Offense v. Harshness of Penalty

2. Life in Prison Cases = Four Factors Plus One Test:

1) Revert to legislature, if there is some basis to the punishment

2) All punishment philosophy principles are permissible.

3) Federalism: there are limits that the crt will respect each state’s

4) Review objectively

5) Plus one: only forbids those sentences that are grossly disproportionate to the crime.

a) This really means the crt will not find many things grossly disproportionate.

a. Examples of excessive punishment:

1. 3 strikes rules are utilitarian motivated-reduce recidivism, send message

2. Coker: Court takes retributive view-rape is disproportionate to death penalty

3. Humiliation as a sole intention is not part of sentencing reform act Unless it reasonably relates to deterrence, rehabilitation

iii. 3 Types of Sentencing Procedures:

1. Determinate sentencing – legislature decides ahead of time *rarely is there straight determinate sentencing*

2. Indeterminate sentencing- legislature is not deciding ahead of time, but will lay out a maximum, then judge decides

3. Most indeterminate- Judge doesn’t give an exact sentence, i.e. between 5-20 years, and a parol board eventually decides. Most focused on rehabilitation.

iv. Principles of Moral & Legislation: you want to prevent to all extent crime from being committed.

1. Crimes will be committed anyway, so there ought to be a penalty system that manages or reduces the type of crime to be committed.

2. But, if a man must commit a crime, needs to be induced to commit a less harmful type. Want a differentiation in the penalties.

3. Cost matters. Prevent crime as cheaply as possible. Minimize punishments that don’t actually serve the purpose of reducing crime.


A. Statutory Interpretation

i. Legislature/court relationship

ii. The principle of legality:

1. “No crime w/o law”

2. No punishment w/o law

3. There has to be some legal authority that says that act is illegal.

a. 3 interrelated corollaries to Legality Principle:

1. Law must be understandable to a reasonable person

a) Part of notice requirement- notice @ time of order, too late

2. Law must not delegate to judges, police, juries, etc.

3. The Rule of Lenity- where law is ambiguous or unclear, it should be biased in favor of the accused

a) Where law is unclear, err on side of accused. Law must be clear. We value avoiding wrongful convictions, and believe that if statute was unambiguous, the D did not have notice that act was illegal

b. No retroactive law making- cannot punish someone for an act that they did not have notice of; Due Process of “fair warning.” There has to be notice, to give people guidance and that they are expected to obey the law

iii. How are Statutes Drafted?

a. Actus Reus + Mens Rea + Causation (if it’s a result crime) + Ci

estruction of an individual, group, or state interest, which is deemed socially valuable (“essence” of crime)

1. Result vs. conduct crimes

a) Result crimes – punishes unwanted outcomes

1) Element to the crime is the outcome of the crime

§ Ex: Murder, someone was killed, caused death of another

b) Conduct crimes – Act itself is forbidden, posed a risk

1) Don’t have to prove the outcome of the crime

§ Ex: Driving under the influence

b. Attendant Circumstances: A condition that must be present, in conjunction with the prohibited conduct or result, in order to constitute the crime.

1. Refers to the elements, but its not a conduct element, not done by, caused by, or acted by the surrounding circumstance- it matters when you analyze the statute

2. Examples:

1) MPC 210.1: Criminal homicide is the ‘purposely, knowingly, or negligently causing the death of another human being”

a) Actus Reus – “causing the death”

b) Mens Rea – purposely, knowingly or negligently

c) Attendant Circumstance – human being

2) Burglary: Breaking and entering a dwelling house of another at nighttime with the intent to commit a felony therein.

a) Actus Reus – breaking and entering

b) Mens Rea – with intent to commit a felony therein

c) Attendant Circumstance – dwelling house; of another; at nighttime


A. Nature of Mens Rea

a. Culpable State of mind

b. Act alone is not enough to be guilty unless the mind is guilty too!

c. There is a broad and specific meaning of mens rea:

1. Broad: Baseline requirement that not criminal unless acts w/ a guilty mind

2. Narrow: Guilty mind required to meet the elements of the particular statute

a) This specific type will change how serious the crime is

B. Intent

a. Mens rea: intentionally OR knowingly > a conscious objective

1. INTENTIONALLY-acting with conscious objective or purpose

a) Desire to cause harm, doesn’t matter how likely the result will occur

· Intent requires subjective awareness

2. KNOWINGLY-consciously aware that such result is practically certain to occur

a) Acts w/ knowledge that harm is certain to occur; known certainties

· Note: Knowledge is not satisfied if outcome was merely highly probable; the D must realize that short of divine intervention, the undesired even will occur

b. Intent can be inferred from surrounding circumstances

1. Inference: a person intends the natural consequences of their actions

2. CL intent rule: encompasses both conscious objective and being consciously aware the result will occur

c. Transferred intent- When D intends to cause harm to one person, but accidentally causes it to another.

· MPC does NOT use Transferred intent