CRIMINAL LAW – Mary Fan – Spring 2011
General Theories
I. RATIONALES
i. Utilitarian: basically, punishment is appropriate if and only if it reduces crime, and only to the degree necessary to reduce crime. This includes rehabilitation, general deterrence, and specific deterrence (incapacitation and intimidation).
ii. Retributivism
iii. Denunciation: also, “expressive theory”; punishment is justified as means of expressing societal condemnation, and may be either retributivist or utilitarian in tone.
II. PUNISHMENTS
a. Deprivation
i. Liberty
ii. Property
b. “Branding”.
c. Collateral consequences
III. PRINCIPLES FOR JUST PUNISHMENT
a. Legality: no punishment unless action was criminal when committed; no retroactive criminalization. Corollaries: (1) statute must be understandable to a reasonable law abiding person; (2) basic policy decisions should not be delegated to judges/police; (3) interpretation of ambiguous statutes should be in favor of accused.
b. Lenity: (3), supra. MPC does not contain lenity principle; interpretation should further aims of code.
c. Specificity
ELEMENTS OF CRIME
IV. ACTUS REUS: “Actus reus” refers to the physical aspect of the criminal activity. The term generally includes (1) a voluntary (2) act (3) that causes (4) social harm.
a. Act: Must involve physical behavior; does not include mental processes. Note: SC has found it unconstitutional to criminalize state of addiction, but not attendant bx (narcotics purchase).
b. Voluntary: generally, any volitional movement including habitual conduct, even if coerced. Non-volitional movements include spasms, acts while somnambulant or unconscious.
i. Burden of proof: Lays with Π; Π need only show that Δ’s conduct included volitional act, not that all acts were volitional.
ii. Constitution: States may not dispense with actus reus.
iii. MPC: Excludes conduct that “is not a product of the effort or determination of the defendant, either conscious or habitual”. Does not require volition for “violations”, for which maximum penalty is civil or fine.
iv. Martin v. State: No volition where unconscious Δ moved to highway and charged by police for drunkenness on highway.
c. Causes: Causal analysis balances factors, and cause may be actual (cause-in-fact) or proximate (either direct or intervening).
i. Actual cause:
1. Sine qua non: common law and MPC test; no actual cause unless social harm would not have resulted without Δ’s actions.
2. Multiple/concurrent actual causes: Δ need not be sole cause for guilty verdict.
3. Accelerated cause: still sufficient; eg, shooting terminally ill person.
4. Obstructed cause: basically, if Δ1 fatally poisons Π but Δ2 kills Π immediately, Δ1 can be charged with attempt only.
ii. Proximate cause:
1. Direct: always proximate causes.
2. Intervening causes: independent force that operates in producing social harm, but which only comes into play after the defendant’s voluntary act or omission.
a. De minimus: where Δ’s voluntary act caused minor social harm compared to the social harm resulting from the intervening cause, court may find intervening cause proximate.
b. Foreseeability: act is proximate if outcome foreseeable.
i. Responsive intervening cause: where intervening cause is result of Δ’s act; liability unless response was unusually bizarre (negligent or reckless Rx care included here).
ii. Coincidental: where intervening cause not responsive; unless coincidence was foreseeable, no liability.
3. MPC: treats proximate cause as a question of culpability; social harm must not be too remote from Δ’s action or intent.
d. Omissions: Generally, no criminal liability for omission. MPC is consistent with common law in providing liability (where omission is criminalized by relevant law or duty otherwise imposed); Exceptions: where there are duties based on (1) special relationships (parents/children) (2) contractual obligations (caretakers/charges), (3) creation of risk, or (4) voluntary assumption & seclusion, or (5) statutory requirements (“bad Samaritan” laws).
i. People v. Beardsley: woman died of overdose in Π’s company during their extra marital assignation; H: omission must be of legal duty, not merely moral duty.
ii. Barber v. Superior Court: Π permitting px to die by cessation of medical care not unlawful failure to perform legal duty.
e. Social harm: may consist of wrongful conduct, wrongful results, or both. Moreover, the offense will contain so-called “attendant circumstance” elements.
i. Conduct: Crime defined by act in absence of results; e.g., DWI.
ii. Result: Crime defined by prohibited results; e.g., murder.
iii. Hybrid: Generally defined by statute, where both conduct and result are elements. E.g., assault with a deadly weapon.
iv. Attendant circumstances: Generally, that contained in the social harm aside from conduct and result.
v. Constitutional constraints: States prohibited from defining some things as social wrongs; e.g. free speech and privacy protections.
V. MENS REA
a. By “culpability”: Minority rule; at common law and in jurisdictions still defining mens rea broadly, where Δ acted with a general culpable state of mind.
b. By “element”: Majority rule; specific mens rea is element of crime.
i. Intent: where Δ’s conscious object is the crime, or Δ acts with knowledge that crime is virtually certain to occur; doctrine of transferred intent applies, with caveats.
1. S
ii. Statutory rape: generally, mistake of fact not a defense.
f. Mistake of fact: many states follow MPC in requiring mens rea for every element of offense.
i. Strict liability: no defense.
ii. Specific intent offenses: where mistake negates mens rea, no crime; mistake which does not alter basic nature of crime (eg, mistake re: value of stolen object) will not generally be a defense. Navarro: Δ erroneously believed beams were abandoned when he removed them; H: mistake negates mens rea in specific intent (larceny) offense, even though the belief is unreasonable. Some persons classify this as a special instance of mistake of law, where law requires knowledge.
iii. General intent offenses:
1. Reasonableness: no offense where mistake reasonable.
2. Moral wrong doctrine: no defense where conduct as Δ believed it would still be immoral.
3. Legal wrong theory: no defense where conduct as Δ believed it would still be illegal; here, offense charged is generally that associated with actus reus, even if offense is greater.
iv. MPC: defense where negates men rea. Exception: where Δ would be guilty under circumstances as Δ believed them, no defense, but charge is for lesser crime.
g. Mistake of law: generally, mistake of law is not an excuse. Exceptions:
i. Reasonable reliance on official statement: for both common law and MPC, statement must be contained in:
1. a statute later declared to be invalid;
2. a judicial decision of the highest court in the jurisdiction, later determined to be erroneous; or
3. an official, but erroneous, interpretation of the law, secured from a public officer in charge of its interpretation, administration, or enforcement, such as the Attorney General of the state or, in the case of federal law, of the United States.
ii. Lambert exception: where court overturned Δ’s failure to register where (1) Δ’s conduct was passive; (2) she had no actual notice of the law; and (3) violation was malum prohibitum (strictly statutory or regulatory offense which may not be immoral per se).
iii. Marero: Δ, prison guard, claimed exemption for peace officers when arrested for unlicensed .38. H: “defense should not be recognized, except where specific intent is an element of the offense or where the misrelied-upon law has later been properly adjudicated as wrong.