Overview of the Nature of Criminal Law
Hypothetical: Fear, Pain and Bubble Gum
• Ike wants to join fraternity, “hell week” means “pledges” are on call at all times to provide entertainment, labor, etc.
• Pledges carry around one hardwood paddle and the favorite candy of each brother.
• Ike meets brother Constin, who asks for cherry bubble gum. Ike thought Constin liked strawberry, so Ike has to run to the store.
• Ike encounters Ed, who accompanies him to exchange his own strawberry gum for cherry.
• They enter a convenience store, but both realize they do not have money.
• Ike takes two pieces of cherry gum and heads for the door, owner yells at him to stop but he continues, effectively stealing the gum.
• Ed explains predicament to owner, who lets Ed take the gum, but still considers Ike a thief.
• Ed tries to make up for lost time by taking a shortcut, ends up stuck between two cars.
• As he pushes himself through, he slips and cuts himself badly, beginning to bleed out.
• In fear of passing out, he smashes the window of one of the cars to gain more room to get free.
• Ike makes it back to Constin, who says he is late and paddles him.
• Both civil and criminal charges are brought against the three actors. Brother Constin is charged with assault, Ike for theft and Ed for damages to the car.
• Civil claims against Constin are dismissed due to Ike consenting.
• Ike concedes liability for theft and pays what is necessary.
• Ed also concedes and pays for the car.
• What criminal liability for each, if any? (Assault, damages, theft)
Model Penal Code Notes
• Often, conduct violates both criminal and civil law.
• Have procedural characteristics different from civil law.
• Crimes prosecuted by the state rather than the victim, while civil laws have a “plaintiff” that brings the action.
• Criminal law focuses on moral blame deserving condemnation or punishment, civil liability does not.
• Criminal law punishes due to moral blameworthiness, if civil law punishes, it typically has to do with compensation or promoting the general welfare.
• Culpability Requirement – The requirement that a blameworthy or attitude or disposition be reflected in the offense elements.
• Bringing about a prohibited harm or evil is not enough for criminal liability.
• One who brings harm about by accident, for instance, lacks culpability and therefore merits no punishment.
• General, criminal law demands at least recklessness as to every offense element.
• An actor must be aware of the facts that make their conduct wrongful.
• Knowledge or Purpose – These are higher levels of culpability than recklessness, and often required.
• Negligence – this is a lower level of culpability. Actor is blameworthy for lacking (rather than possessing) an awareness of what they are doing.
• Strict Liability – No culpability is required at all – controversial.
• May be limited to mere violations, as distinguished from crimes.
• Civil liability by contrast frequently requires no culpable state of mind.
• When required, commonly only negligence need be shown.
• Many criminal codes distinguish between crimes and violations.
• A violation does not carry the same moral gravity as a crime.
• Such things as illegal parking, motor vehicle violations not considered “crimes”.
• Malum in Se – something that is wrong or evil in itself. Violates a pre-legal or social norm.
• Malum Prohibitum – something that is not wrong by nature, but wrong because the law says it is.
• Malum Prohibitum is controversial and always expanding. Many jurisdictions have expanded the number and severity of malum prohibitum offenses.
• Over-extension of offenses may cause moral force of law to become diluted.
• Consent also understood different in criminal and civil law.
• Consent usually provides a complete defense to a civil action, as a plaintiff usually has no right to recover from an action they consented to.
• This is what allowed brother Constin to defend himself against the civil claim. Ike consented to the paddling.
• Consent provides a defense for a criminal charge only if it vitiates the harm or evil of the offense. If the presence of consent means it is no longer a harm, then it is a defense to criminal liability.
• This is why the store owner’s consent for Ed to take the bubblegum causes it to not be theft.
• For many criminal offenses consent is not a defense.
• Criminal assault occurs if one “purposely, knowingly, or recklessly causes bodily injury to another”. Generally a defense to assault is not allowed just because the victim consented to bodily injury.
• Criminal conduct generally seen as harm against the community, not just the individual victim.
• Causing a minor injury is an offense, even if the victim consents.
• Justification Defense – Even if culpable state of mind is shown for an offense, criminal liability is barred if the actor’s conduct is justified because it avoids a greater societal harm.
• So, Ed will have a justification defense to breaking the car window, because he was seeking to avoid the greater harm of falling unconscious due to blood loss.
• Excuse Defense – Criminal liability is also barred if surrounding circumstances or conditions render the actor blameless for committing what would otherwise be an offense. Examples would be an insane person or a person who commits an act due to coercion.
• Civil liability generally does not recognize justification or excuse defenses. This comes from criminal liability being about punishment, and civil liability being about compensation. Even an insane person (or their guardian) might have to compensate for damages under civil law.
• De Minimis Defense – Criminal law only addresses harms of sufficient seriousness.
• When an actor causes trivial harm, he may still be liable under civil law, but generally will not be charged under criminal law.
• Model Penal Code grants a defense for de minimis infractions even where they violate the literal terms of a criminal prohibition: “The court shall dismiss a prosecution if… it finds that the defendant’s conduct… did not actually cause or threaten the harm or evil sought to be prevented by the law defining the offense or did so only to an extent too trivial to warrant the condemnation of conviction”.
• Example: A person who leaves a restaurant with an apple from a buffet where there is a rule against the removal of food. The conduct violates the theft prohibition but one might conclude the violation is too trivial.
• In civil law, the extent of harm is important in assessing the amount of the award, but generally does not affect liability.
• So the store owner may not recover much from Ike for stealing bubblegum, but he does have a right to compensation, however small.
• Only moral blameworthiness merits condemnation as a criminal.
Overview of the Sources of Criminal Law
• Common Law – Developed and finding expression in judicial opinions.
• Modern American criminal law is statutory.
• Courts generally do not make criminal law anymore. Legislatures do.
• Nearly every state has a criminal code – a relatively comprehensive statutory enactment – as its primary source of criminal law.
• Courts interpret the code, but generally have no authority to create new crimes or to change the definitions of existing crimes.
• The shift from judge-made to legislatively enacted criminal law is principally rooted in the rationales for what is called the legality principle.
• When lawyers speak of common law, they mean either a) the law as it existed in common law England, or b) law that is derived from a process of judicial development.
• Common law “process” – refers to the process of judicial law making, regardless of period.
• “The common law rule” refers to the legal rule that existed in England during eighteenth century.
• While no state permits judges to create crimes, the common law continues to be important for several reasons.
• Some state criminal codes incorporate common law offenses by name, without defining them. These are called reception statutes. Under these, judicial decisions must be relied upon to determine the elements of a criminal offense.
• Little criminal code reform happened before the 1960s. Most state “codes” at the time were little more than collections of ad hoc statutory enactments.
Model Penal Code
• Model Penal Code, promulgated b
he other participants will kill the bank guard if the guard resists. If such a killing occurs, the robber may be liable for murder as an accomplice even though he did not perform the killing directly.
• The rules of accomplice liability will impute the killer’s conduct to his fellow robber, making the robber liable for murder as well.
• Although the robber did not perform the required conduct, he will be treated as if he had done so.
• Imputing Culpability Elements – Just like accomplice liability can impute to the defendant an objective element (another person’s conduct), the doctrine of voluntary intoxication can impute a culpability element.
• An actor who becomes voluntarily intoxicated, and then strikes and kills a pedestrian with their car, may lack the culpability required for the offense of manslaughter – awareness of a substantial risk that her conduct will cause the death of another human being. But awareness of a risk of causing death (recklessness as to causing death) may be imputed to the actor under the doctrine of voluntary intoxication.
• Because of her voluntary intoxication, she may be treated as if she satisfies the required element of recklessness as to causing death.
• This scenario may apply to Box – because his intoxication was voluntary, recklessness as to causing serious bodily injury might be imputed to him.
Doctrines of Defense
• Even if an actor satisfies all the elements of an offense, actually or through imputation, he may still be acquitted of the offense if he satisfies the conditions of a defense.
• Box may claim his actions were justified by his need to protect himself, or that they should be excused because the Daggers coerced him into doing what he did. Or he might claim the nonexculpatory defense that the period of limitation has run.
• Failure-of-Proof Defenses – Some doctrines that are called defenses are nothing more than the absence of a required offense element.
• When I take your umbrella believing it to be my own, I may claim a mistake defense. Definition of theft includes a requirement that an actor know that the property taken is owned by another person.
• A mistake defense like this is called a failure-of-proof defense because it derives from the inability of the state to prove a required element.
• If Box were to claim that he did not have the required recklessness as to causing serious bodily injury to Bet, he would be making a failure-of-proof defense, claiming that prosecution could not prove all the elements of offense.
• Offense Modification Defenses – Modifies and sometimes clarifies the definition of an offense element for defense.
• For example, using consent as a defense can assist against assault, which is partially defined as unconsented to touching, would be an offense modification defense.
• Often differs only in style, not substance, from failure-of-proof defenses.
Criminalization Defenses vs. General Defenses
• Both failure-of-proof and offense modification defenses are criminalization defenses, because they are linked to a single offense or group of offenses which they seek to define or to clarify, to the benefit of the defense.
• Justifications, excuses, and nonexculpatory defenses are not linked to any particular offense, theoretically apply to all offenses, and are called general defenses.
• Where a criminalization defense applies, the defendant has committed no criminal wrong at all.