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Criminal Law
University of Wyoming School of Law
Johnson, Eric A.

Criminal Law
Ø The common law: judge-made law, much of which originated in England.
Ø The Model Penal Code: model criminal code developed by American Law Institute and published in 1962.
C.L. offenses abolished…
      Model Penal Code 1.05(1)
“No conduct constitutes an offense unless it is a crime or violation under this Code or another statute of the State.”
Distinguishing Features of the Criminal Law
Ø Its prohibitions are statutory and they’re different in every state.
Ø The “plaintiff” in a criminal action is always the government, which acts on behalf of the public.
Why the common law still matters?
Ø Many criminal statutes incorporate common law terminology
Ø Many states have not adopted statutes defining affirmative defenses.
ü “Malum in se”: A crime or act that is inherently immoral, like murder, rape, or arson.
ü “Malum prohibitum”: An act that is a crime just because the law says it is, like jaywalking or failing to pay your taxes.
Statutory Interpretation
1)      Goal is to ascertain “legislative intent”
2)      Court interprets what statute says; it doesn’t try to determine what legislature thought but didn’t say
3)      The source of the statutory terminology is important
4)      Ambiguities in penal statutes (sometimes) must be resolved in defendant’s favor   
“It is the policy of this state to construe a penal statute as favorably to the defendant as its language and the circumstances of its application reasonably permit …”
–          Keeler v. Superior Court, p. 94
Constitutional Limits
Ex post facto –
– the legislature cannot criminalize conduct that was legal when committed; cannot retroactively increase severity of ∆’s crime and its penalty.
Unforeseeable judicial interpretation-
– “Vagueness may invalidate a law for either of two independent reasons. First, it may fail to provide the kind of notice that will enable ordinary people to understand what conduct is prohibited; second, it may authorize and even encourage arbitrary and discriminatory enforcement.”
            – City of Chicago v. Morales
            Ex. =
Stanko v. State: statute that prohibits operating vehicle at “unreasonable” speed is unconstitutionally vague.
Stanko v. State (II): statute that prohibits operating vehicle “in willful or wanton disregard of the safety of others” is not unconstitutionally vague.
“Element of an offense”
 “Element of an offense”
(i)                 such conduct or
(ii)               such attendant circumstances or
(iii)             such result of conduct as … is included in the description of the forbidden conduct.
                                                                                    Model Penal Code 1.13(9)
The Model Penal Code taxonomy
•         Elements come in three basic forms:
1. conduct elements;
2. attendant circumstance elements; and
3. result elements.
                                    The offense of drunk driving has two basic elements:
1.      driving, which is a conduct element; and
2.      “under the influence of alcohol,” which is an attendant circumstance element. 
                                    The offense of vehicular homicide has two basic elements: 
1.      driving, which is a conduct element; and
2.      causing the death of another person, which is a result element.
Voluntary Act:
 “A person is not guilty of an offense unless his liability is based on conduct which includes a voluntary act or the omission to perform an act of which he is physically capable.”
                                                            Model Penal Code 2.01(1)
– Voluntary Act better defined as what is NOT one:
What makes an act “involuntary”?
–          Movements caused by an outside force
–          Reflexive movements
–          Movements during sleep
–          Actions performed in automatistic state attributable to mental illness
–          Actions performed in automatistic state attributable to intoxication.
Omission to Act:
– always must have a legal duty before can have an omission to act
Ø Model Penal Code 2.01(3)
            “Liability for commission of an offense may not be based on an omission unaccompanied by action unless:
            (a) the omission is expressly made sufficient by the law defining the offense; or
            (b) a duty to perform the omitted act is otherwise imposed by law.”
Ø Potential sources of legal duty to act
(a) Statute that imposes duty to act
(b) Status relationship, e.g., marriage
(c) Contractual duty of care
(d) Voluntary assumption of care
(e) Creation of risk 
      Legal duty: look at…
1. the status relationship of the parties
2. the particular fact situation

ive risk culpable?
Transferred intent
•         Well-drafted statute says: “Whoever, with intent to kill a person, kills any person is guilty of murder.”
•         Poorly drafted statute says: “Whoever intentionally kills another person is guilty of murder.”
      Doctrine applies when the defendant:
o   intends to injure one person but ends up injuring another person
o   intends to damage one piece of property but ends up damaging another
o   intends to cause more serious harm of the same kind that ends up occurring
      Doctrine doesn’t apply when the defendant:
–        intends to cause one kind of harm but ends up causing another kind
Substitution of Mental States
•         What MPC 2.02(5) permits:
–        Substitution of a more serious mental state for the mental state required by the statute with respect to a particular element.
•         What MPC 2.02(5) doesn’t permit:
–        Substitution of a mental state pertaining to a different, more serious form of social harm
Willful blindness,
Model Penal Code version
–          MPC 2.02(7): “When knowledge of the existence of a particular fact is an element of an offense, such knowledge is established if a person is aware of a high probability of its existence, unless he actually believes that it does not exist.”
–          ∆ “knowingly” ignores strong possibility. “Just don’t tell me what it is!”
Common law version
–          “Knowledge” is established if the defendant’s ignorance of the attendant circumstance was a product of his deliberate effort to avoid acquiring knowledge of it.
Statute that are Silent or ambiguous to Mental State:
– Questions to ask when a statute is silent or ambiguous about the mental state that attaches to a particular material element:
1. Does the mental state mentioned in the statute apply to that element?
2. If it doesn’t (or if the statute doesn’t men