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Criminal Law
Villanova University School of Law
Dempsey, Michelle Madden

Criminal Law Outline


Fall 2011


A. Crimes v. Torts

• Different party pursues the case –> ex. State/ commonwealth/ U.S.

• Different purpose of legal remedy –> punishment of guilty v. Compensation of injured

• Different burden of proof —> state must prove D’s guilt beyond a reasonable doubt

B. Justifications of Criminal Punishment

• Deterrence – deter offender from future criminality

• Incapacitation – separate the offender form society to protect people from risk they possess

• Rehabilitation – changing the offenders outlook so he or she will be reformed

• Retribution – “an eye for an eye”

C. Criminalization

• What conduct should be criminalized?

• Conduct must be wrongful

• Conduct must cause harm

• Criminal law must be an effective response to the conduct

• There must be no less punitive alternative to criminalization

• Sources of Criminal Law –

• Common law –> law created by the courts = PAST

• Statutes = NOW

• Model Penal Code (MPC) –> not law, but is uniform and is all in one place for jurisdictions to look at

• What criminal law applies to a given case?

• Answer = the law of the particular jurisdiction where the case is being prosecuted

• Complication = there are 53 jurisdictions in US

• This course will focus mostly on state laws

• Note that there is a wide variety of criminal laws throughout the 50 states

Keeler v. Superior Court –> Ex husband kicked victim in the stomach causing her to miscarry.

• Issue: Under the CA statue defining murder, does a fetus fall into the category of a “human being?”

• Answer : NO

• Take away points –

1. The primacy of statutes in criminal law–> statutes are primary source of law

• “the power to define crimes …is vested exclusively in the legislative branch” (p.18)

• This principle can be used to argue against courts creating new criminal offenses

• Courts interpreting existing legislatively-enacted criminal offenses “too broadly”

2. The principle of lenity

• Courts should “construe a penal statute as favorably to the defendant as its language and the circumstances of its application may reasonably permit…” (p.17)

3. The indeterminacy of principle

• Compare majority and dissent’s use of “principle of fair import” (p. 18; 20-21)

D. Elements of Crime

• Offense elements can be argued in many different ways –> no perfect ways of doing this

• Note distinctions between elements of the offense and additional facts that must be proven in order to secure conviction

U.S. v. Zandi p. 24–> Zandi brothers were arrested at airport after they attempted to pick up package full of opium

• Take Away Message –

1. Provides example of how courts approach actus reus and mens rea as distinct issues.

2. Illustrates how elements of crimes can be satisfied through legal fictions (“constructive possession”) and presumptions (“intent to distribute”)

3. Illustrates how circumstantial evidence case be used as proof of elements of crimes (p. 26) Note: you don’t need to understand legal rules regarding circumstantial evidence


• Special Part v. General Part

• Special = specific offenses with specific elements

• General = issues that cover every crime

• Ex. Actus rues, mens rea

• Intentional Homicides –

• All 1st Degree Murders

• Some 2nd Degree Murders –> express malice

• All voluntary manslaughter

• Unintentional Homicides –

• Some 2nd Degree Murders –> depraved heart

• All Involuntary Manslaughter

• All Negligent Homicide


1. MURDER —> Two degrees of murder

• 1st degree murder =

• Intentional killing, and

• Deliberation, and

• Premeditation

• 2nd degree murder =

• Intentional killing (without deliberation and premeditation), or

• “Depraved heart” murder (unintentional, but grossly reckless)

• Under PA Pattern – all murders are second degree murders unless you prove premeditation and deliberation


1. Causing

2. Death [of]

3. Human being

4. Intentionally, and

5. Deliberately, and

6. With Premeditation

• Deliberation = “cool mind that is capable of reflection”

• Premeditation = “reflection before the killing”


1. Causing

2. Death [of]

3. Human being

4. Either:

4a. intentionally (but without deliberation and premeditation), or

4b. with a “Depraved Heart”

Commonwealth v. Carroll –> D shoots wife in the back of the head after an argument

• Was there enough premeditation to qualify at 1st degree murder?

• YES –> No time is too short to premeditate

• Under PA law, premeditate can occur “in an instant.”

• Some courts have said it takes no more than the “twinkling of an eye”

People v. Anderson –> D murdered and rape his girlfriends ten year old daughter.

• Brutality of killing itself does not establish proof of premeditation and deliberation

• Some courts hold that brutality is sufficient circumstantial evidence of premeditation and deliberation

• However, some courts find that brutality of killing tends to show “frenzy” and thus not premeditation and deliberation

• Recall that prosecution bears burden of proving beyond a reasonable doubt that killing was premeditated and deliberate

• There

e the source of the provocation

What is Adequate Provocation?

• Mere words are not enough… but what is?

• Category approach (common law)

• Mutual combat

• Serious assault and battery

• Injury to D’s relative (or other 3rd party)

• Resisting illegal arrest

• Discovering cheating spouse

• “Reasonable cause” approach

• More flexible than category approach

Reasonable Person Test

• Given the degree of provocation D experienced, would a reasonable person react as D did?

• Majority Rule = “objective” test

• Do not take D’s particular characteristics into account in deciding whether D acted reasonably in response to the provocation

State v. Avery —> Avery was having an affair with V who broke into her home and was trying to have sex with her, was grabbing her and threatening her. He left but then came back and she shot him.

• Court held that her actions could be charged as voluntary manslaughter

• Take away messages –

• Although words are not sufficient to establish provocation, prior acts of provocation can be combined with words uttered immediately before the killing

• Example of more subjective approach to judging provocation

• Took D’s particular life experiences into account in determining whether evidence was sufficient to raise issue of provocation



1. Causing

2. Death [of]

3. Human being

4. Recklessly


• MPC § 2.02(2)(c) – …”when he consciously disregards a substantial and unjustifiable risk that the material element exists or will result form his conduct.”

• ..” its disregard involves a gross deviation from the standard of conduct that a law abiding person would observe in the actor’s situation.”

• D is aware of a substantial and unjustifiable risk that his conduct will cause death of a human being – but D chooses to engage in the conduct nonetheless (thereby “consciously disregarding” the risk)

• Awareness is key factor

• Risk must be substantial (not trivial)

• Risk must be unjustifiable

• Disregarding the risk must be “gross deviation” from standard of care a reasonable person would observe