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Criminal Law
University of Toledo School of Law
Porter, Nicole Buonocore

Criminal Law – Outline
I              Introduction
A    Nature of Criminal Law and Procedural Context
1      Criminal cases are brought by State
i        Society as a “whole” is affected or concerned w/ matter
2      Trial by Jury
i        Persons charged with a crime are given the right to trial by jury
B     Punishment (“blameworthiness”)
1      Retributiveà“Backward Looking”
i        Punishment is justified when it is deserving (“proportionality & just desert”)
a       Not willing to punish even if society would benefit unless criminal deserves punishment
ii       Assumes that individuals possess free will in the capacity for free choice
a       Does not assume that individuals are hedonistic and make rational CB analysis’s
iii     Criminals owe a debt to society
a       Must pay debt to restore equilibrium
iv     Varieties
a       Assaultive à “eye for eye”
(1)   Punishment equal to crime
b       Protective à to protect society
(1)   If person fails to utilize self restraint, equilibrium is destroyed, punishment is necessary to restore
c       Victim vindication à
(1)   Both parties have equal worth, and criminal takes more à punishment restores balance
v       Criticism
a       Penal law should look forward, not backward
(1)   Infliction of pain does not result in benefit (society wants to reduce pain, but this increases it)
b       No way to punish equally to crime à myth
c       Irrational theoryà based on anger and revenge (law should be higher than that)
2      Utilitarianism à “Forward Looking”
i        Penal laws should maximize the net happiness of society and should punish and exclude painful / unpleasant events
a       Punishment (or no punishment) should increase utility of society
b       Are willing to punish individual (regardless of deserving) if this would benefit society
ii       Person contemplating criminal activity makes C/B analysis, and will avoid committing the crime if pain outweighs pleasure
a       Humans act hedonistically and rationally à want pleasure
b       Cost/Benefit analysis à Places events into units of pain and pleasure
iii     Economic theory of punishment
iv     Primary goal is to prevent future harm à Deterrence
v       Varieties
a       General Deterrence à punished to convince society not to act in this manner (theory)
b       Specific Deterrenceà D is punished in order to prevent D from committing future crimes
(1)   If you incapacitate,à cannot commit further crime while imprisoned
(2)   Intimidation à classical conditioning – if you do this again, consequences will occur again
c       Rehabilitation / Reformà believe punishment aids in rehabilitation & saves Gov’t $
(i)      Ex. Drug treatment, academic training, incarceration, psychiatric care
vi     Criticisms
a       Do individuals really perform these balancing tests OR do they act compulsively?
b       Privilege the exemplary value of punishment above all else?
(1)   Crime is a means to an end (punish one person, teach society)
(2)   Can be used to justify punishing innocent people
c       Rehabilitative efforts have failed, and do not work (empirical studies)
3      Doctrine of Proportionality
i        Punishment must fit crime
ii       8th Amendment à
a       “Excessive Bail shall not be required, nor excessive fines imposed, nor cruel and unusual punishment inflicted.”
4      Types of Punishments
i        Fines
ii       Imprisonment
iii     Capital Punishment à Death
iv     Community Service
v       Treatment / Rehabilitation
vi     Probation
5      Policy
i        Basic societal norms/values à right v. wrong
ii       Significance of harm to individual & society as a whole
iii     What result does society want?
a       Deterrence
b       Norms à stability
c       Justice
d       Morality
iv     Underlying religious and moral beliefs
C     Legality Doctrines
1      Precedents of law generally should rule; the courts should not make up their own new laws
2      Law should be defined by the large majoritarian bodies à legislature
3      Due Process Concerns: 
i        Must put individual on fair notice of conduct prohibited
4      If A/R + M/R elements are met à ASK? à
i        Was the law in existence prior to the act?
a       NO Ex Post Facto laws or Judicial Law making
(1)   Legislature can NOT make law that punishes for past actions that were legal at the time
(2)   Due Process requirements
(i)      Actor must have Notice & Fair Warning
(a)     14th & 5th amendments
ii       Was the law judge made?
iii     Is the statute unconstitutionally vague?
a       Void for Vagueness
(1)   Statutes can NOT be ambiguously drafted à allow too much discretionary decision in enforcement
iv     Is there ambiguity that can be construes in favor of the accused.
a       Rule of Lenity

Common Law
MPC § 1.02 (3)
1.) Rule of Lenity à if ambiguity exists in a statute that can NOT be decided as to which meaning is correct à must construe definition most favorable to Δ

1.) Rule of Lenity à if ambiguity exists in a statute that can NOT be decided as to a correct meaning à must be interpreted to further the general purposes of the provision at issue

Note: MPC does not mention the rule of lenity à merely a comparable section of the code

D    Statutory Construction
1      Factors to look at:
i        legislative intent
ii       definitions in code / dictionary
iii     legislative history
iv     case law
v       social policy
E     Burden of Proof
Ø Prosecutor / State à must prove every element of the crime beyond a reasonable doubt 
1      Burden of Production
i        State has burden of production at onset of trial
a       Δ has burden to production to bring evidence of elements of defense
(1)   Even if Δ does not satisfy its burden of production for a defense à State’s must still fulfill its burden and jury will decided whether or not State has met its burden of persuasion (Doesn’t mean Δ will lose)
ii       State must provide enough evidence so that a ® jury could decide in favor of the state or the case must be dismissed
a       Judge decides this question à if yes à goes to trier of fact (jury)
b       If insufficient evidence of one or more elements of criminal act à Δ wins and charge is dismissed 
(1)   Δ then will move for acquittal or judgment
iii     Must be enough evidence so that a reasonable juror could find in your favor
a       If ¶ satisfies burden of production à criminal charge goes to jury
b       If Δ satisfies burden of production à defense goes to jury
2      Burden of Persuasion
i        State must persuade jury that all elements of the crime are met according to standard  
a       Standard of Persuasionà “Beyond a Reasonable Doubt”
ii       Δ must persuade jury regarding evidence of defense
a       Standard of Persuasionà depends on crime and/or defense
(1)   “Preponderance of the Evidence” (usually)
(2)   “Clear and Convincing Evidence” 
(3)   “Beyond a Reasonable Doubt”
iii     Both parties will attempt to persuade the jury that its evidence is greater than the opposing party’s
iv     If State fails to satisfy its burden of persuasion à jury will acquit
3      Shifting of Burden
i        Burdens of proof may shift from ¶ à Δ during trial
a       Ex. If Δ is trying to prove mental incapacity à burden shifts to Δ after Sta

to stop after causing an accident
b       Duty Imposed by Statute:
(1)   Ex. municipal regulation that forces homeowners to shovel sidewalks
c       Tort Duty / Good Samaritan law:
(1)   D is drowning and A comes to help, but decides not to, and others do not help because A looked as if he would à “Seclusion” à Creates a duty to help once others leave à must attempt to save
(2)   D is drowning and A is the only one around, A decides not to help à No duty to help
(3)   Duty to aid if you put person in peril
(i)       What if B, the best friend of D asked him to go swimming? Does this create a duty to save him?
(a)     If you put someone in harm’s way à you then must save them.
d       Contractual / Fiduciary Duty
(1)   Nurses, firemen, policeman à duty to aid person in peril if “on duty”
(2)   Accountants, lawyers, doctors à duty to clients
e       Status Relationship 
(1)   Legal relation of protector
(i)      Ex. Husband à Wife,: Parent à Child = willfully or negligently failed to make reasonable & proper efforts to rescue as they might have done (w/o jeopardizing his life or lives of others)

Common Law
MPC § 2.01 (1)-(2)
1. Omissionà failure to act ≠ liability UNLESS there was a duty imposed

Omissions to Actà 5 main duties

a.) Offense defined by Statute

b.) Duty Imposed by Statute

c.) Tort duty / Good Samaritan

d.) Statue Relationship

e.) Contractual Duty

Duties To Act
-status relationship to another
-contractual duty to care for another

Omission Following Act
-creation of risk
-voluntary assistance

1. Omission à failure to act does NOT = criminal liability UNLESS:

a.) omission is expressly made sufficient by the law defining the offense
OR
b.) duty imposed by law







III        Causation
A    Definition
1      Actor’s conduct must have brought about OR caused the result (harm) à
i        Instrument of society employs to ensure criminal responsibility is personal à basis that links actor to social harm
ii       No criminal liability for resulting social harm à “must be shown that the Δ’s conduct was a cause-in-fact of the prohibited result” + proximate cause the harm
2      Result crimesà must have actual + proximate causation
i        NOT necessary for conduct crimes
3      Tort v. Criminal causation
i        Tort à seeks to identify the most suitable party on whom to place financial liability upon (vicarious)
ii       Criminal à imposes a stricter test due to higher stakes (must be personal causation)
B     Actual Cause
1      “But for” à Cause in fact
i        “Would the social harm have occurred but for the action/inaction of the actor when it did?”
2      Five Theories of Actual Causationà (When there are multiple “but for” causes)
i        Direct
a       One actor directly causes the harm and causation is established
ii       Accelerating the Result