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Criminal Law
Villanova University School of Law
Dempsey, Michelle Madden

Criminal Law Outline – Fall 2011
Professor Dempsey
             I.      Introduction
a.      Generally
                                                              i.      Crimes vs. Torts
1.      Purpose of legal remedy
a.       Primary purpose of the criminal justice system is to punish the offender, whereas the primary purpose of the civil case is to compensate for wrongful conduct
                                                                                                                                      i.      Compensation is sometimes required for crimes in the form of restitution paid to the victim.  Civil defendants can also be ordered to pay punitive damages, which are designed to punish the defendant for outrageous conduct
2.      Victims
a.       Criminal cases are conceptualized as harms to the state, while torts are seen as harms against a specific victim.  A crime can be prosecuted even if the victim wants the case to be dropped
3.      Burdens of Proof
a.       The state must prove a criminals guilt beyond a reasonable doubt, whereas in a civil suit a defendant must be found liable by a preponderance of the evidence
          II.      Justifications for Criminal Punishment
a.      Generally
                                                              i.      Four traditional theories underlying criminal sanctions: (1) deterrence, (2) incapacitation, (3) rehabilitation, and (4) retributive justice
                                                            ii.      Utilitarian theories: use the criminal law to serve society’s interests in reducing crime and protecting the public
1.      Deterrence (general and specific)
a.       Theory: people will avoid criminal behavior because of the fear of the potential sanctions if caught
b.      General: offender is punished in order to deter other people who might consider committing similar crimes
c.       Specific: offender is punished in order to deter the same offender from future criminality
2.      Incapacitation
a.       Theory: offender is jailed for a lengthy period of time to protect people from the risk they pose
3.      Rehabilitation
a.       Theory: punishes for the purpose of changing the offender’s mental outlook so they will be reformed, hopefully losing the desire to recidivate
                                                          iii.      Retributive theory: considers moral blameworthiness instead of the usefulness of the punishment to society
1.      Retribution
a.       Theory: offender is punished because they deserve it
b.      What Should Be Punished
                                                              i.      Harm to others: the only purpose of defining crimes is to prevent harm to people other than the actor.  Harm that exceeds the incursion on oliberty that results from the prohibition itself.
                                                            ii.      Crime and morality
1.      Devlin: paramount issue in defining crimes is the underlying public morality.  If certain conduct is disgusting and immoral, that is one indicator that it is proper to criminalize it.
2.      Hart: harm to others is a fundamental requisite for legitimacy in the criminal law
                                                          iii.      Direct vs. Indirect harm
1.      Criminal law can prohibit conduct that facilitates harm even if it does not cause harm directly à at some point the remoteness of the conduct from the “real crime” becomes relevant
a.       At each step away from the direct harm there is negative fallout from the decision to criminalize indirect factors, but if the goal is to prevent an object crime for occurring then it makes sense to criminalize the conduct that is one or two steps removed from the actual harm
                                                          iv.      Constraints on overcriminalization
1.      Due Process Clause requires criminal statutes to use reasonably clear language to provide guidance to private persons and limit discretion accorded to law enforcement
2.      The problem here is the desire not to criminalize too much
a.       Overcriminalization sweeps into areas of normal, harmless behavior
b.      If the law is too broad there is guesswork, and this can cause Constitutional violations
                                                            v.      Other alternatives
1.      Criminalizing something can be an effective response to the conduct, but only if no less punitive alternatives exist
2.      Can consume fewer resources than criminal prosecutions
       III.      Sources of Criminal Law
a.      Generally
                                                              i.      Common Law
1.      Most jurisdictions don’t recognize CL crimes or defenses à most have entirely statutory criminal law
2.      Some jurisdictions use CL “gap fillers”
a.       If a statute addresses an issue then the statute controls.  Matters not covered by statutes are still subject to prosecution under the CL crime dealing with the conduct
                                                            ii.      Statutory
1.      If a statute can’t be read to prohibit an action, then it’s probably not a crime
2.      Typically use CL terminology.  Using CL definitions is an interpretive principle used to decipher statutes
                                                          iii.      MPC
1.      Isn’t law à serves as a model for states to use in reforming their criminal codes
2.      Two parts: General and Specific
a.       General
                                                                                                                                      i.      Provides rules that apply to all crimes: burden of proof, basic definitions, guides to interpreting the code, general underlying policies, and defenses
b.      Specific
                                                                                                                                      i.      Elements of specific crimes: murder, theft, sexual assault
b.      Interpretive principles
                                                              i.      Rule of Lenity (more defendant friendly)
1.      Construing a penal statute as favorably to the defendant as its language and circumstances of its application may reasonably permit.
2.      Strict construction: jurisdictions read criminal statutes narrowly so as to avoid criminalizing any conduct by too-broad implication
                                                            ii.      Fair Import (less defendant friendly)
1.      Court should read a statute in accordance with its plain or common meaning
2.      Requires a court to interpret crime definitions according to the fair import of their terms, “with a view to effect their objects and promote justice”
                                                          iii.      Keeler v. Superior Court: Keeler saw his wife was pregnant and stomped the fetus out of her.  The statute prohibited the killing of a “human being,” and court was posed with the question of determining whether the fetus fell under this umbrella.  Statute was drafted by the legislature, and courts can’t rewrite the statute so as to include the fetus.  Constitutional prohibition of enacting ex post facto laws.
1.       Defendants are entitled to the benefit of every reasonable doubt as to the true interpretation of the wording of a statute (principle of lenity)
2.      The penal code commanded the court to construe the provisions according to their fair import, but the court can’t enlarge the statute by inserting or deleting words
                                                          iv.      Formalism vs. Functionalism
1.      Formalist approach: extracts the elements set forth in a statute and compares the facts to those elements in a rigorous manner
2.      Functionalism: seeks to discern the purpose, intent, or function of a statute and to apply it consistently with that purpose, intent, or function.  Outcome depends on whether the facts are such that the statute was “meant” to apply to them
                                                            v.      Statutes that borrow from the CL
1.      Judges will assume the legislature intended the statute to be consistent with the CL definition of the relevant crime.  Courts won’t assume the legislature didn’t intend to change the law when it enacted the statute, rather it simply meant to codify the existing CL rules
2.      To determine the meaning of statutory language which is assumed to change the CL, judges will rely on three interpretive considerations
a.       Plain/ordinary meaning
b.      Legislative intent
c.       Learned treatises
3.      Statutory language will be interpreted in a way that will render the statute consistent with the constitutional requirements (no ex post facto crimes, principle of fair warning)
4.      Courts will assume every word in a statute is relevant to its application.  Nothing is surplusage
5.      Judges often disagree whether words in a statute should be frozen in place or whether they should be interpreted in light of present day conditions in order to promote justice
a.       Raises the debate of “judicial activism,” separation of powers and the proper role of the judiciary
       IV.      Homicide
a.      Generally
                                                              i.      Three approaches
1.      Pennsylvania Pattern
a.       Different grades of murder (1st and 2nd)
2.      MPC
a.       No degrees of murder
b.      Relative culpability of murders taken into account at sentencing
3.      Felony Murder
a.       Causing death in the course of committing a felony
b.      Pennsylvania Pattern
                                                              i.      Generally
1.      Intentional vs. Unintentional
a.       Intentional homicides
                                                                                                                                      i.      All 1st degree murders
                                                                                                                                    ii.      Some 2nd degree murders (express malice)
                                                                                                                                  iii.      All voluntary manslaughters
b.      Unintentional homicides
                                                                                                                                      i.      Some 2nd degree murders (depraved heart)
                                                                                                                                    ii.      All involuntary manslaughters
                                                                                                                                  iii.      All negligent homi

Minority rule: some courts require that the victim be the source of the provocation
                                                                                                                                    ii.      An indiscriminate killing of a bystander would be murder instead of voluntary manslaughter
4.      Stave v. Avery: Avery asked the victim to leave her house, and he harassed her and threatened her, and came back to her house and confronted her, at which point Avery shot him.  Words alone aren’t enough to establish provocation, but prior acts of provocation combined with words uttered immediately before a killing can be.  Words can be bootstrapped to prior acts to show provocation.  This is a more subjective approach to judging provocation since it takes into account the defendant’s life experiences in determining whether the evidence was sufficient to show provocation.
                                                            v.      2nd Degree Murder
1.      Elements
a.       (1) causing, (2) death of, (3) human being, (4) EITHER: 4a. intentionally (but without deliberation or premeditation) OR 4b. with a depraved heart
b.      “Depraved heart” requirement: depraved indifference to life
                                                                                                                                      i.      Common examples: Russian Roulette, shooting into an occupied room/train/automobile, setting a bomb off in an occupied building, failing to feed a child for weeks, shaking an infant, throwing furniture off a roof into a crowded street, driving a speed boat through a crowd of swimmers
2.      All murders are presumed to be 2nd degree.  The charge is bumped to 1st degree when there is evidence of premed/delib
3.      Blurred distinction between a depraved heart killing and involuntary manslaughter.  Difference is one of degree rather than kind (Fleming)
4.      Commonwealth v. Malone: Malone played Russian Roulette with a friend and shot him.  Court defined depraved heart killing as, “when an individual commits an act of gross recklessness for which he must reasonably anticipate that death to another is likely to result, he exhibits that ‘wickedness of disposition, hardness of heart, cruelty, recklessness of consequences, and a mind regardless of consequences, and a mind regardless of social duty’ which proved that there was at that time in him ‘the state or mind termed malice’.”
5.      People v. Knoller: Knoller’s dogs killer her neighbor, and the dogs were known to be dangerous and deadly and had in the past shown aggression.  Under the Phillips test, the court found implied malice where a “killing is proximately caused by an act, the natural consequences of which are dangerous to human life, which act was deliberately performed by a person who knows that his conduct endangers the life of another and who acts with a conscious disregard for life.”
a.       Court disregarded the Thomas test: malice is implied when “the defendant for a base, antisocial motive and with wanton disregard for human life, does an act that involves a high degree of probability that it will result in death.”
b.      Phillips Test
                                                                                                                                      i.      Objective element: the natural consequences of which are dangerous to life
                                                                                                                                    ii.      Subjective elements: (1) the defendant deliberately performed the act in question, (2) the defendant knew that this conduct endangered the life of another, and (3) the defendant acted with conscious disregard for life
c.       Minority jurisdiction rules for implied malice
                                                                                                                                      i.      Intent to cause serious bodily injury = implied malice
                                                                                                                                    ii.      Resisting lawful arrest = implied malice
                                                                                                                                  iii.      Felony murder = MR of the felony supplies the malice for the murder charge