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Criminal Procedure
University of Toledo School of Law
Steinbock, Daniel J.

Criminal Law Outline

I. In general…
a. Why criminal Law is different:
i. Civil: person wronged is the one who sues (suits between private individuals)
ii. Criminal:
1. Not only a person is wronged, but so is society
2. Government takes on the role of “correcting the damage”
3. Punishment: can take more than money (freedom, life, etc.)
b. Theories of Punishment:
i. Retributive
1. Punishment in measure as deserved
2. Backward-looking: since the criminal has harmed society, it is right for society to “harm him” back
ii. Utilitarianism:
1. Greatest good for the greatest number
a. Purpose of all laws is to maximize the happiness of society
b. Laws should be used to exclude, as far as possible, all painful or unpleasant events
2. A person will avoid criminal activity if the perceived potential pain (punishment) outweighs the expected potential pleasure
3. Forward-looking:
a. Deterrence
b. Punishment to convince the general community (and actual defendant) to forego criminal activity in the future
iii. Goals (not exclusive list)
1. Incapacitating
2. Rehabilitation
3. Deterrence
a. General: deter everyone
b. Specific: deter this person
4. Revenge
c. Legality:
i. No crime without law (no ex post facto laws)
1. “All Roads lead to Keeler”
ii. Things that are immoral aren’t necessarily illegal
iii. Rule of Lenity: if there is ambiguity in the statute, it has to be construed in the way that is most lenient to the defendant
d. Interpretation/Statutory Construction:
i. Argument based on the application of a statute
ii. Legislative intent
1. What did the legislature mean when they made the law?
2. Can sometimes use legislative history to figure out if necessary
iii. Modern definitions
iv. Judicial interpretation
v. Statutory interpretation laws
vi. Narrow v. broad interpretation
vii. Policy analysis
1. What is it supposed to do?
2. Who was it supposed to protect?
3. What evil was it supposed to address?
viii. No more common law crimes
1. Judges cannot make criminal laws (up to legislatures due to separation of powers)
2. Even in few states where exception, law made judicially are encompassed into statutes
e. Presumption:
i. Something MUST be concluded due to a set of facts
ii. Unconstitutional: shifts the burden onto the defendant to prove otherwise
f. Inference:
i. Given the facts, something can be inferred but not conclusively arrived at
ii. Constitutional: keeps the burden of proof on the state for beyond a reasonable doubt
g. Elements of a crime: the things that must be proven in order for the party with the burden of proof to prevail
i. Actus Reas (guilty act): a physical act (or unlawful omission) by the defendant
ii. Mens rea (guilty mind): the state of mid or intent of the defendant at the time of his act
1. Malum in Se: wrong in itself (an intent as an element of the offense [mens rea])
2. Malum Prohibitum: wrong because prohibited (strict liability)
3. Concurrence: the physical act and the mental state existed at the same time
iii. Causation: cause (both factually and proximately) by the defendant’s act
iv. Harmful result: result crimes
v. Concurrence of the Elements: all of the elements of a crime have to be together, at the same time

Act (+Result) + Mental state = Crime – Defense

Actus Reas: “Guilty Act”

Voluntary: must be a conscious exercise of the will (if no choice involved, not a crime)
Not voluntary:

Act which was not produced by the defendant (not product of actor’s determination)
Reflexive, convulsive acts, automatic response (conditioned response of a conscious act; would make it automatic, and unconscious)
Unconscious or asleep (unless knew that might fall asleep or become unconscious)

Elements: Legal duty, reasonably possible to perform, did not perform that duty

Common Law

Model Penal Code

§ Voluntary
o Subjective Standard (can still be “voluntary” if know you can blackout and drive anyway)
§ Affirmative Act

§ Voluntary
o Objective Standard: look at external circumstances
Conduct (affirmative act), Result, and Circumstance

Mere presence + intent to possess + power to possess = conviction

An act if:

Knowingly procured OR
Knowingly received OR
Was aware of control for sufficient period of time

There must be a duty:

Relationship (special protector relationships: spousal, parent-child)
Contract (paid for the duty: lifeguard)
Voluntary assumption of care (once aid is rendered a “Good Samaritan” may be held criminally liable for not satisfying a reasonable standard of care)
Creation of peril or creator of risk by defendant: duty to get the person out of it (throwing in a pool and drowning)

not mentioned

Specific Intent Crime:

Look for “with intent to…”
Intent to commit a further act, separate from the actus reas of the offense; or
Special motives or purpose for committing actus reas; or
Awareness of attendant circumstances

Ex: attempt, conspiracy, first degree murder, assault

Cannot be inferred from actus reas
Only Specific intent crimes: voluntary intoxication and unreasonable mistake of fact

MPC no longer recognizes the distinction between general and specific intent. Rather, it spells out what is required for each crime.

General Intent Crime:

Any mental state express or implied that relates to the acts of the offense

Can be inferred from actus reas

(see above)

Transferred intent: “transfers” from victim to victim of the same crime but not from crime to crime (for General Intent only)

MPC does not have a transferred intent provision, the language allows for the same effect

Strict Liability:
No need to show culpable mental state (no moral considerations)
Malum prohibita (bad because prohibited)

Statutory rape, bigamy, felony murder

Certain defenses not available: mistake of fact
Most constitutional

Strict Liability:
§ 2.05 Generally rejects, makes it a “violation”


Important with result crime (homicide)
Needs connection between action and the result
Need both actual and proximate causes
Does not matter if unintentional