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

Criminal Law Outline (Gilchrist)
Spring 2015
I.            Overview

2 Categories of Criminal Law
Substantive – What is forbidden
Procedural – How to deal with violations of Substantive

Sources of Criminal Law
Model Penal Code (MPC): suggested set of criminal laws, portions of which states adopt individually

Characteristics of Criminal Law / Distinguished from Other Bodies of Law
Involves moral condemnation
Prescribes a list of commands – “musts” and “must-nots”
The laws are always binding on those to whom the statute applies
Punishment is the main purpose for trial
Punishment by/from the state
Matters are of public concern (State v. ____)
Mindset matters – “guilty mind” required in most cases
Higher Standard of proof = Beyond a Reasonable Doubt (BRD)
Remedy is not related to the victim

Crimes at Trial
Few crimes reach trial
Many go undiscovered
Difficulty in gathering evidence
Lack of resources – police give priority to more serious investigations
Investigative skepticism & disagreement – investigators may not believe a crime actually occurred depending on who reported it, ect…
Prosecutors do not take all crimes to court
Don't think they will win
Lack of resources
Lack of evidence
Guilty Plea Bargains

Procedural Concerns
Right to jury trial
6th Amendment
Founders distrusted government

Proof Beyond a Reasonable Doubt
Prosecutor must convince the fact finder beyond a reasonable doubt as to every fact necessary to prove each element of the crime
Reasons for high standard
Stakes are higher than at civil law – often deal with people's lives
Death (in extreme cases)
Moral culpability aspect (conviction involves public shame)
Lower risk of convicting innocent persons
Better to let a guilty party go free then convict an innocent
Though there is debate as to just how much worse that would be
Some rules favor the defense because there is a higher Burden of Proof (BOP)
Any error in a reasonable doubt jury instruction automatically grants new trial
Standard of review in a challenge to such error is abuse of discretion (difficulty to meet)
Reasonable Doubt
Preponderance of the Evidence = more likely than not
Reasonable Doubt – more than Preponderance of the Evidence
Some level of proof higher than more likely than not
Not quantifiable – never has been defined concretely
Prosecution & Defense will suggest to the fact finder what a reasonable doubt is

Jury Nullification
Juries may acquit on the basis of the law being bad (D might still be guilty of that law)
Nullification is a power, not a right
A technicality that exists but will be discouraged
Thus, will not be advertised or blatantly argued for
II.        Principles of Punishment

Punishment – Some sort of deprivation with an effort to harm to achieve the ends of some penal theory

Penal Theories
Retributivism – someone was harmed by D's act, so it is right to harm D (payback)
Positive Retributivism: D deserves it, so we should punish him, even if no other purpose
Negative Retributivism: punish people only when they deserve it and for the greater good

Utilitarianism – punishment serves some other purpose (Deterrence is key Util. principle!)
General Deterrence: deter this type of behavior in society at large
Specific Deterrence: deter this type of behavior for this defendant
Incapacity/Risk Management: protect society – D cannot cause any further harm is he is incapcitated (applies to prison sentences)
Reform/Rehabilitation: make the offender better for future contribution to society
Restitution/Restorative Justice: make the victim whole/feel better
some sentences involve fines given to victim
Seek uniformity in sentencing: sentence like offenders in like ways

Certainty in Punishment
Determinate: legislature sets a specific sentence for each crime, although often permitting a specified higher or lower sentence if specific aggravating or mitigating circumstances are proven
Prescribed by legislature in statute
Very clear & fair
Gives certainty
Clear incentive for how to act
Negative: Does not always account for complexities in facts
Indeterminate: Judge (not legis.) sets the appropriate punishment for each offender within very broad legis. imposed parameters
Disfavored – too lenient; no equality

Validity of Punishment
Punishments are valid if:
The sentence was imposed for a permissible purpose AND
the conditions of the punishment are reasonably related to that purpose

Proposed Adverse Effects of Punishment
Shaming is below the dignity of our legal society
Punishment may have negative effects v. rehabilitating D
Cause reclusion
Cause mental harm
Aggravation v. Mitigation

Proportionality of Punishment
How much punishment is appropriate?
Parsimony Principle – never put more punishment on someone than needed

V.        Mens Rea

Mental or internal part of the crime
“Guilty Mind”
A guilty or wrongful purpose; a criminal intent
Signifies the actor's state of mind regarding the social harm of the offense
Always have to have guilty mind for criminal liability!

Views of Mens Rea
Broad: simply “guilty mind”; traditional view
Narrow: What is the particular mindset D needs to have to be guilty of a particular crime?
Ex Homicide: murder v. manslaughter

Common Law Standard: Intent
Intent – conscious object of the actor (desired outcome) or results that actor knows are virtually certain to occur, even if he does not want them to arise
At CL, intent also means knowledge
Knowledge – D is actually aware that result is practically certain to occur
Intent is often translated to mean “culpability”
The intent required for a particular crime must be present as to each element of that crime
General v. Specific
General Intent – any mental state, whether expressed or implied, in the definition of the offense that relates solely to the acts that constitute the social harm of the criminal offense
D acted and intended to act as he did
Pays no mind to result
Specific Intent – a special mental element which is required above and beyond any mental state requirement with respect to the actus reus of the crime
D acted as he did plus with an intended objective
Mental state beyond the act itself is required
Mental Elements:
Intention by the actor to commit some future act
Special motive or purpose
Actor's awareness of an attendant circumstance
Ex: selling liquor to a person known to be under 21 years of age
Transferred Intent – When D. intends to cause harm to one person/thing, but accidentally causes it to another. D is still liable
Intent to harm A transfers to B when that harm results to B if
Intent is equally culpable, AND
All that changes is who is harmed
Intent will likely not transfer if the type of harm is raised