Select Page

Criminal Law
Villanova University School of Law
Dempsey, Michelle Madden


Professor Dempsey – Fall 2013

I. Theories of Punishment (What Justifies Criminal Law & Punishment)

a. Retributivist Theories – person deserves to be punished for their wrongdoings

i. Positive Retributivism – Criminals have the right to punished

ii. Negative (limiting) Retributivism – criminal law justified in virtue of the good consequences that it realizes; but its justification in a case is limited to the Ds just desert

b. Consequentialist Theories

i. Defn: consequences are the primary consideration of what right

ii. Deterrence –

1. General Deterrence – ability to deter other people from committing criminal offenses

a. Some crimes (shoplifting) can’t do this

2. Specific Deterrence (prevention) – punish the defendant so that it will deter him from reoffending

iii. Rehabilitation – goal is to cause defendants to become better people who choose not to reoffend in the future

iv. Incapacitation (restraint) – D not deterred, stop them from doing something because they are incapable of doing so

1. Ex. House arrest, prison, death penalty

v. Social Norms Transformation (Norm Enterpreneurs)

vi. Miscellaneous Consequentialist Considerations

c. Expressive Theories of Punishment – express correct norms regarding standards of proper behavior and demonstrate proper respect

i. Condemnation of Moral Wrongdoing

ii. Moral Education – Use the criminal justice system to teach society about proper social norms

d. Mixed Theories of Punishment

i. Draw from several theories of justification

ii. Only where punishment is deserved

II. General Concepts of Criminal Law

a. Note about MPC:

i. Model statute that reflect what its drafters (ALI members) thought should be the criminal law

ii. One goal was to create more uniform/standardized criminal laws throughout various states

b. Actus Reus – “Guilty Act”

i. Conduct

1. The act element

ii. Circumstance

1. Circumstances must be proven for a D to properly be found guilty of the offense

2. i.e. burglary – D must have broken into a dwelling house; it must belong to another person; and it must have been committed at nighttime

iii. Causation

1. Must prove the Ds consequence caused the prohibited consequence

iv. Consequence

1. Prove that D caused that consequence

2. i.e. death of another human being

c. Mens Rea – “Guilty Mind”

i. Intent/Purpose (MPC 2.02(2)(a))

1. Ds purpose, desire, or conscious object

2. For attendant circumstances – D is aware of the existence of such circumstances or he believes or hopes that they exist

3. If it doesn’t happen you will feel like you failed

ii. Knowledge (MPC 2.02(2)(b))

1. D was aware of something, practically certain

a. If conduct – was he aware of his conduct

b. If circumstance – was he aware of those particular circumstances that existed at the time

c. If consequence – was he aware that the consequence was practically certain to result from his conduct

iii. Recklessness (MPC 2.02(2)(c))

1. Ds awareness and conscious disregard of a substantial and unjustifiable risk, when taking that risk is a gross deviation from the standard of care that a reasonable person would observe in Ds situation

2. Don’t’ know that you will cause the result, but you are aware of the substantial and unjustifiable risk

iv. Negligence (MPC 2.02(2)(d))

1. Ds failure to be aware/perceive of a substantial and unjustifiable risk, when that risk is a gross deviation from the standard of care that a reasonable person would observe in Ds situation

2. Clueless as to the substantial and unjustifiable risk

v. Strict Liability

1. Prosecution only has to prove the AR elements; doesn’t need to prove MR elements

2. Strict liability approved in case of production of child pornography (Fletcher)

3. Purchasing alcohol for minor is a strict liability offense, but D allowed to plead affirmative defense of reasonable mistake as to minor’s age (In re: Jennings)

4. Speeding and other regulatory offenses

d. Defenses

i. Failure of proof defenses = negate an element of the actus reus or mens rea

ii. Affirmative Defenses – even if actus reus and mens rea elements are proved, asserting a justification or excuse to get off the hook

1. Justifications – D has committed the prima facie offense but should not be convicted because all things considered, his conduct was permissible

a. Self Defense

b. Defense of Others

c. Defense of Property

d. Defense of Habitation

e. Crime Prevention

f. Use of force to Prevent Arrest/Escape

g. Necessity

2. Excuses – D has committed the prima facie offense but should not be convicted because some feature of the D or his circumstances at the time make him not or insufficiently blame worthy

a. Duress

b. Insanity – Don’t need to know this!!!!

c. Diminished Responsibility – Don’t need to know this!!!!

e. Inchoate Liability

i. Attempts

1. Acting with intent to commit the target offense, but failing to do so

ii. Conspiracy

1. Agreeing with others to commit the target offense


iii. Solicitation

1. Asking someone else to commit the target offense


iv. Accomplice Liability

1. A form of criminal responsibility under which someone is convicted for an offense that someone else committed

III. Principles of Criminal Law

a. Principle of Culpability

i. Defn: People should not be convicted of criminal offense if they are not culpable for the conduct which forms the criminal offense

ii. Exception: Innocent motives do not negate criminal intent. D may still be convicted, even if intentions are good

iii. D’s lack of fraudulent intent di d not negate criminal intent in case of willfully altering a public record (O’Brien)

b. Principle of Correspondence (MPC 2.02(4))

i. Defn: Criminal offenses should be defined by legislature and interpreted by the courts so that each element of the AR has a corresponding MR (no strict liability)

c. Principle of Coincidence

i. Defn: AR and MR must coincide with one another in an appropriate way

ii. Motivational – D wants to kill V, on the way he runs over V accidently

1. AR not motivated by the MR

iii. Time of trespassory taking must coincide with mens rea

iv. Legal fiction of continuing trespass can be invoked to extend the time of the taking until D forms intent to steal.

d. Principle of Contemporaneity

i. AR and MR must happen at the same time

e. Harm Principle

i. On time control can be exercised over any person against his will is to prevent harm

f. Offense Principle

i. Conduct that causes offense to others may be justifiably criminalized

g. Rule of Law

i. There should be laws (that is, we should live under the rule of laws, not be dominated by the will of the powerful);

ii. No person should be treated as if he or she were above the law;

iii. Laws should be clearly stated and publicized, so that subjects will know what the laws are;

iv. Laws should be prospective, so that subjects may use them to guide the

e of a risk that co-D might commit the further crime (ie, reckless as to the possibility that co-D might commit further crime).

iii. Defenses relevant to Accomplice Liability

1. The fact that the principal was acquitted (or not even charged) does not provide any defense to an accomplice

2. Victims cannot be liable as accomplices to crimes committed against them (eg, statutory rape) (see, MPC 2.06(6)(a) – which is similar to common law)

3. Renunciation (see, MPC 2.06(6)(c) – which is similar to common law)

f. Attempt Liability

i. Actus Reus

1. Key issue: Is D a “dreamer” or a “doer”?

a. Rule: Two extremes and a happy medium

i. “mere preparation” test (no jurisdictions apply this test, because it’s too hard on D – risking criminalizing “thought crimes”)

ii. “Last act” test (few jurisdictions apply this test, because it allows dangerous, culpable actors to pose serious risks of harm without facing an adequate level of criminal liability)

iii. “Substantial step” test (MPC and majority of jurisdictions apply this test)

1. Lying in wait, searching, or following the contemplated victim

2. Enticing the victim to come to the place contemplated for the commission of the crime

3. Reconnoitering (scoping out) the place contemplated for the commission of the crime (“casing the joint”)

4. Unlawful entry into a structure, vehicle or enclosure in which it is contemplated that the crime will be committed

5. Possession of materials …specially designed for [criminal] use or that can serve no lawful purpose of the actor under the circumstances

6. Possession, collection or fabrication of materials…at or near the place contemplated for its commission…serving no lawful purpose of the actor under the circumstances

a. Jury entitled to find that D committed attempted distribution of heroin based on evidence that D requested and received payment for the drug, with the intent to distribute (Mandujano)

2. Merely professing a desire to purchase drugs, without producing money, does not constitute an attempt (Joyce, although, note that facts in that case went well beyond merely professing a desire to purchase drugs)

3. Bank Robbery Cases

a. Evidence Sufficient to Find Attempt

i. Rumfelt (1971) = D pointed gun at V and instructed V to enter bank. V attempted to open door, but failed (ATTEMPT)

ii. Snell (1980) = Ds planned to kidnap Vs to gain access to bank. D knocked on V’s door to commence kidnapping, but turned away by guard dog (ATTEMPT)

iii. Moore (1990) = D walked toward bank, wearing ski mask, carrying gloves, pillow case, and loaded gun (ATTEMPT)

b. Evidence NOT Sufficient to Find Attempt

i. Buffington (1987) = D’s driving slowly by shopping center multiple times, caught near bank with guns and one D wearing 4 jackets (NO ATTEMPT)

ii. Still (1988) = D parked with motor running outside shopping center – D arrested on other charges and admitted intent to rob bank (NO ATTEMPT)