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

I. Introduction
a. Punishment is an expression of the community’s hatred, fear or contempt for the convict which alone characterizes physical hardship as punishment.
b. A crime is conduct which if duly shown to have taken place, will incur a formal and solemn pronouncement of the moral condemnation of the community.
c. Legislators as opposed to judges exercise primary responsibility for defining criminal conduct and for devising rules of criminal responsibility.
d. Primary parts of general direction
i. Primary addressee who is supposed to conform to his conduct to the direction must know
1. Of its existence
2. Its content in relevant respects
ii. He must know about the circumstances of fact which make the abstract terms of the direcetion applicable in the particular instance
iii. He must be able to comply with it
iv. He must be willing to do so.
e. Judiciary role is to interpret statute
f. Proof – beyond a reasonable doubt
i. Society values good name and freedom of every individual.
ii. Eliminates some or most factual error
iii. Protect society from power of the state/court/police
g. Instructions
i. Moral certainty
1. They cannot say they feel an abiding conviction to a moral certainty, of the truth of the charge.
ii. Firmly convinced (pro defendant instruction)
1. Leaves you firmly convinced of defendant’s guilt, if there is a real possibility that they are not guilty you must give them the benefit of the doubt and find not guilty.
iii. No waver or vacillation
1. After carefully considering, comparing and weighing all the evidence, there is not an abiding conviction of guilt, or there is one which is not stable but wavers or vacillates then the charge is not proved beyond a reasonable doubt.
iv. No real doubt
1. Based upon reason and common sense after careful and impartial consideration of all the evidence. You will be willing to rely and act upon it without hesitation in the most important of your own affairs.
v. Thoroughly convinced
1. Are you thoroughly convinced?
h. Presumption of innocence
i. Functions of a jury
i. Determining credibility of witnesses
ii. Weighing of the evidence
iii. Drawing of justifiable inferences of fact from the proven facts.
iv. If evidence is such that a reasonable jurymen must necessarily have such doubt, the judge must require acquittal because no other result is permissible within the fixed bounds of jury consideration.
v. Jury can nullify and you cannot appeal no conviction – double jeopardy.
1. One side -Should not be advertised and to the extent constitutionally permissible should be limited.
2. Opposite view -Role of jury is to act as conscience of the community, defendants right to inform the jury of information that is essential to prevent oppression by the Government is clearly of a Constitutional magnitude.
j. Standard on appeal
i. Whether a rational trier of fact could reasonable have reached the result that it did.
II. Principles of Punishment
a. Retributive (most popular theory)
i. To punish
ii. They deserve it
iii. Positive retributivism – Need for penalties constitutes necessary and sufficient reason for punishment
iv. Negative retributivism – Punish whether there is a deterrent effort or not
v. Assaultive retributivism – Results from anger/hatred of criminals
vi. Reestablishes the status quo, corrects relative value of wrongdoer & victim
b. Utilitarian
i. For the good of society
ii. Useful purposes
iii. Punishment ought to be admitted as far as it promises to exclude some greater evil.
iv. Approve or disapprove of every action according to the tendency which it appears to have to augment or diminish the happiness of the party whose interest is in question.
v. Deterrence (Benefits of Punishment)
1. General deterrence
2. Individual deterrence
3. Incapacitation and other forms of risk management
4. Reform
vi. Problems with Utilitarian Justification
1. Don’t actually work/prevent crime
2. Can lead to some strange results
3. Can lead to punishment of innocent persons
I. Constitutionality of Punishment (Proportionality of Punishment)
a. 8th Amendment
i. excessive bail shall not be required, nor excessive fines imposed, nor cruel and unusual punishment inflicted.
ii. S.Ct. ruled that the cruel and unusual punishment clause was directed not only against punishments that inflict torture, but against all punishments which by their excessive length or severity are greatly disproportioned to the offense charged.
1. What is grossly disproportional?
a. Death penalty for rape?
i. S. Ct. says yes.
ii. Makes no measurable contribution to acceptable goals of punishment and hence is nothing more than the purposeless and needless imposition of pain and suffering.
iii. Dissent discusses deterrent
b. 3 strikes rule for violent crimes?
i. S.Ct. Says no
ii. Looked at policy
iii. States interest in deterring crime violent crimes.
iv. Gravity of offense compared to harshness of penalty.
II. Principle of Legality
a. Legality principle condemns judicial crime creation
b. Void for Vagueness – Legislature cannot delegate lawmaking authority to courts
c. Doctrine of Strict construction directs judicial resolution of residual uncertainty in the meaning of penal statutes be biased in favor of the accused.
i. Due process concerns if they do not
1. Keeler – viable fetus
ii. Ex post facto and Due process clause – prohibit retroactive legislation.
III. ACTUS REUS (objective)
a. A (1) conduct (voluntary act) that (2)causes (3)social harm (harmful result).
i. Act – physical movement
ii. Voluntary – volitional (minimal mental element required in order to establish the actus reus).
1. Can be presupposed or presumed
a. But must be proven by prosecution as an element of the crime.
2. Must be willed movement or omission of possibly legally required performance.
3. Unconsciousness does not always provide a defense
a. If it is voluntarily induced through the consumption of alcohol or drugs then it does not attain the stature of a complete defense.
iii. Involuntary – many meanings
1. Jill points a loaded gun at jacks head tells him to do what she says, he’s doing it involuntarily
2. Spasm involuntary.
iv. MPC 1.13(2)
1. Act means bodily movement whether voluntary or involuntary
b. Social Harm – negation endangering or destruction of an individual group or state interest which is deemed socially valuable.
i. Result crime
1. Murder – offense seeks to prevent or punish a harmful result
ii. Conduct crime
1. Driving while intoxicated
a. No bad result or injury is required to be guilty.
b. Harm will not include any harmful result is defined broadly.
iii. Attendant circumstances
1. A condition that must be present; in conjunction with the prohibited conduct or result, in order to constitute the crime.
a. Purposefully, knowingly or negligently cuases the death of another human being
b. Breaking and entering a dwelling house of another at nighttime with the intent to commit a felony therein.
c. MPC § 2.01 (1)
i. A person i

s conduct.
a. Gross deviation from the standard of conduct that a law abiding person would observe.
2. Objective
a. Substantial unjustifiable risk
3. Subjective
a. Conscious disregard of that risk
iv. Negligently
1. A reasonable person would have been aware of a substantial and unjustifiable risk that the material element exists or will result from his conduct (thought for negligence you aren’t aware of the risk, but reasonable person would have been?)
2. Gross deviation from standard of care that a reasonable person would observe
v. 2.02 (3) Silence as to culpability
1. Purposefully
2. Knowingly
3. Recklessly
vi. 2.02 (4)
1. level of culpability prescribed applies to all material elements unless otherwise prescribed.
vii. Hierarchy of culpability – lowest can be substituted for highest.
1. 2.02 (10) graded degrees – if determined by purposefully negligently recklessly knowingly, its grade or degree shall be the lowest for which the determinative kind of culpability is established.
viii. Gets rid of general and specific intent
1. Applies to every element unless statute specifically says so.
V. Transferred Intent – (could allow for 2 killings for one act)
a. Not really necessary because if you have intent to kill, you have intent to kill no matter who you kill.
1) the law states that the intent transfers over to the new victim
b. Transfers to new victim – can’t transfer intent between crimes?
a. Mistake of fact
One of the two times where it matters whether it is general or specific intent crime
i. CL –
1. General intent – (one mens rea element)
a. Is any menta state in the definition that relates soley to the act that constitute the criminal offense
b. Honest & Reasonable mistake – not guilty (good faith)
c. Moral wrong doctrine (minority rule)
i. If facts had been as the defendant believed them to be his conduct would still be immoral, no exculpation.
ii. Completely arbitrary – people consider morality differently
iii. Has one mens rea
c. Legal Wrong doctrine –
i. No exculpation for mistakes where the facts were as the defendant thought them to be his conduct would still be illegal
1. Mens rea for lesser offense, actus reus for higher offense
2. Guilty of higher offense
3. Under MPC guilty of lesser defense
2. Specific intent (two mens rea or it’s general intent)
a. Is a special mental element which is required beyond any mental state for the actus reus of the offense
(intention by the actor to commit some futute act, separate from the actus reus, possession with intent to sell)
possession- mens rea
intent to sell- mens rea
b. If his mistake of fact negates the specific intent portion of crime
c. Only need to prove that mistake was honest/good faith to defeat mens rea requirement
d. Has two mens rea