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

Professor Greg Gilchrist                              
Criminal Law                                                           
Spring 2012

Important questions to ask during the exam—especially on the essay portion

·         What is the difference between the MPC and common law?
§  Would the d be more likely to be convicted under common law or MPC?
·         Ex: in heat of passion cases, c. Law has four elements to determine culpability but the MPC is more broad in determining culpability, b/c of such defenses as extreme emotional distress

a.       Utilitarian Justifications (Bentham)
i.            The utilitarian goal is to discourage criminality in the most efficient and least costly way possible. General Deterrence
The knowledge that punishment will follow crime deters others from committing crimes, thus reducing future violations
Individual Deterrence
The actual knowledge of punishment creates fear in the offender that if he repeats his act, he will be punished again
b.      Retributive Justifications (Moore)
i.            Punishment is justified b/c the convicted deserve it
Positive Retributivism:
·         The idea that moral deserts require that the guilty be punished
Negative Retributivism:
·         The Innocent should never be punished, only those who actually did something wrong; b/c the reason we punish is so it will benefit society not necessarily b/c they deserve it, but for some other justification

a.       The Queen v. Dudley and Stephens
i.            A person may not sacrifice another person’s life to save his own
b.      People v. Du
i.            In imposing a sentence, a judge must first consider the objectives of sentencing a defendant, including:
·         to protect society; to punish the defendant for committing a crime;
·         to encourage the defendant to lead a law-abiding life;
·         to deter others; to isolate the defendant so she cannot commit other crimes;
·         to secure restitution for the victim and to seek uniformity in sentencing.
ii.            Sentencing Procedures:
·         Indeterminate: Broad range of sentencing discretion, e.g., 5-20 years
·         Determinate: Narrow range of sentencing discretion set by statutes
c.       U.S. v. Gementera: D sentenced to carry a sandwich board around his body stating he was a mail thief
·         Punishment must be “reasonably related” to “the nature and circumstances of the offense and the history and characteristics of the defendant.”
·         Be both “reasonably related” to and “involve no greater deprivation of liberty than is reasonably necessary” to “afford adequate deterrence to criminal conduct”
·         “Provide the defendant with needed educational or vocational training, medical care, or other correctional treatment in the most effective manner.”

a.       Immanuel Kant – Society has the Right of Retaliation when a citizens offends it
b.      Jeremy Bentham — Principles of Morals and Legislation
i.            (Four) Objectives for Legislators:
1.      Strive to prevent all offenses from being committed
2.      Strive to induce the offender to commit the lesser crime
4.      Strive to induce him to do no more mischief than is necessary
5.      Strive to prevent the mischief at “as cheap a rate as possible.”

Constitutional Principles
Rule: “A punishment is ‘excessive’ and unconstitutional if it:
makes no measurable contribution to acceptable goals of punishment and hence is nothing more than the purposeless and needless imposition of pain and suffering; or
is grossly out of proportion to the severity of the crime.”
Ewing v. California:
·         Three strikes laws, which serve the legitimate goal of deterring and incapacitating repeat offenders, do not violate the Eighth Amendment of the United States Constitution’s prohibition on the imposition of a sentence that is grossly disproportionate to the severity of the crime.
a.      The examination of a statute challenged on 8th Amend. constitutional grounds must be guided by the 4 principles informing the 5th principle:
(1) the primacy of the legislature, (Court will defer to the Congress)
(2) the variety of legitimate penological schemes, (incapacitation and deterrence)
(3) the nature of our federal system, (states are free to try different methods of punishment) AND
(4) the requirement that proportionality review be guided by objective factors–that inform the final one:
(5) The Eighth Amendment does not require strict proportionality between crime and sentence.
·         Rather, it forbids only extreme sentences that are ‘grossly disproportionate’ to the crime.

i.            Principle of Legality: The 1st Principle of American Criminal Law
·         “No crime without law, no punishment without law”: there must be a legal authority that says an act is illegal for its commission to be criminal

(1) A person is not guilty of an offense unless his liability is based on conduct that includes a voluntary act or the omission to perform an act of which he is physically capable.
(2) The following are not voluntary acts within the meaning of this Section:
(a) a reflex or convulsion; (b) a bodily movement during unconsciousness or sleep;
(c) conduct during hypnosis; (d) a bodily movement not a product of the effort of the actor
(3) Liability for the commission of an offense may not be based on an omission unaccompanied by action unless:
(a) the omission is expressly made sufficient by the law defining the offense; or
(b) a duty to perform the omitted act is otherwise imposed by law.
(4) Possession is an act, within the meaning of this Section, if the possessor knowingly procured or received the thing possessed or was aware of his control thereof for a sufficient period to have been able to terminate his possession.

·         3 interrelated corollaries to the legality principle:
·         Criminal Statutes sh/b understandable to reasonable law-abiding persons
·         Criminal Statutes sh/b crafted so that they d/n “delegate basic policy matters to policemen, judges, and juries
·         Judicial Interpretation of ambiguous status sh/b “biased in favor of the accused” — known as the LENITY DOCTRINE
1.      Court d/n want to imprison innocent persons b/c the law is vague–the vagueness of the law is not the accused fault

·         3 Rationales behind the Legality Principle:
·         prevents 'arbitrary and vindictive use of the laws'
·         the principle enhances individual autonomy
·         citizens must have reasonable notice of the crime in order to be punished by the law

Constitutional Foundations of the Legality Principle:
·         Laws can only be written and enforced “prospectively”–ahead of time–so as to give notice the people subject to the laws written
·         Bills of Attainder: special legislation that declares a person guilty of a crime w/o either trial
·         Ex post facto Clause: making a crime already committed illegal after the fact
·         Commonwealth v. Mochan:
·         RULE: Under the common law, “[w]hatever openly outrages decency and is injurious to public morals is a misdemeanor at common law.”
1.      Common law crimes continue to be punishable under the law in Rhode Island,  but most states have abolished common law offenses
2.      Statutes will be the basis for punishing crimes NOT common law, so you should always start with the statute
·         Keeler v. Superior Court:
·         RULE: The term “human being”, as contemplated by the penal code of California, does not include an unborn fetus
1.      We do not allow the imposition of retroactive lawmaking and that we must afford notice of what acts constitute criminal behavior such that individuals have the opportunity to avoid such behavior.
·         Court had to find whether a fetus is considered a human being w/I the meaning of the statute Keeler was accused under
1.      The law must be interpreted as it was originally written, and even if court wanted to change the law they can only do so prospectively
The Values of Statutory Clarity
·         A person may not be convicted of a crime if the statute lacks clarity
RULE: A criminal statute must be sufficiently definite to give notice of the act proscribed.
1.       Where an action is done with wrongful intent, the statute, however broad, is still constitutional
2.       The fact finder must be able to define a reasonably ascertainable standard of guilt
3.       The statute is presumed constitutional and must be so held unless it conflicts with some constitutional provision.
4.       Where the statute is clear and unambiguous on its face, the courts m

ich is deemed socially valuable
1.            Social harm is the very “essence of crime”

(TWO) Types of Offenses:
1.            Result Crimes:
·         The law punishes this type b/c of an unwanted outcome, such as causing the death of another person, arson
2.            Conduct Crimes:
·         The law prohibits specific behavior such as DUI, or solicitation to commit murder

MENS REA (most important part of class; it will be a tool to understanding the rest of the material)
Nature of “Mens Rea”– Guilty mind; a guilty or wrongful purpose; a criminal intent
(TWO) usages of Mens rea:
i.            Broad Meaning:
The actor is guilty of a crime if she commits the social harm of the offense with ANY morally blameworthy state of mind; d/n matter if she did so intentionally or recklessly
ii.            Narrow Meaning:
The defendant is not guilty of the offense, if she lacks the mental state specified in the definition of the crime
·         In any statutory definition of a crime, MALICE must be taken not in the old vague sense of wickedness, but as requiring either:
i.            An actual intention to do the particular kind of harm that in fact was done OR
ii.            Recklessness as to whether such harm should occur or not
General Issues in Proving Culpability
1.            “INTENT”
·         Defined: including not only those results that are the conscious object of the actor and the actor knows are virtually certain to occur from his conduct, even if he d/n want them to happen
RULE: intent can be reasonably inferred based on the attendant circumstances
The presumption is that a person “intends the natural and probable consequences of his actions”
“for an injury to be deemed disabling, all that must be shown is that he victim is no longer whole such that the injured bodily portion or part no longer serves the body in the same manner as it did b/f the injury”
Common law Intent:
Intent was historically to mean both intent and knowledge and there was no difference legally
RULE: It is unconstitutional for a judge to instruct the jury that “the law presumes that a person intends the ordinary consequences of his voluntary acts
Transferred Intent Basics: “the intent follows the bullet”
When a person intends harm on one but actually causes harm to another
Under such circumstances the accused is deemed culpable and society is harmed as much as if the accused had accomplished what he had initially intended
This rule d/n “literally” transfer intent, it is legal fiction used to reach what is regarded as a virtual unanimity as a just result
Specific and General Intent:
i.            Specific (mens rea intent): this requires one of the elements of mens rea beyond volition (nearly everything is specific intent now)
o   Ex: Common law larceny: “trespassory taking and carrying away of personal property of another with the intent to steal”
ii.            General Intent: the only mens rea element is that the person intentionally caused the harm
o   So, it need not be proven that the accused meant to cause the harm done, only that he intended to act; however,
·         Even if someone intended to do something wrong, the foundational meaning of mens rea will still be looked at by the court
·         Ex: Common law rape: “sex by a male w/a female not   his wife, w/o her consent”