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Criminal Law
Villanova University School of Law
Pether, Penelope J.

Foundation Considerations: Statutes, Crimes, Proof, Processes, and Purposes
I. Statutory Basis of Criminal Law
A..       Criminal Law is Mostly Statutory in the Modern State
1.      Common law is more flexible then statutory law
2.      MPC is an influential model for states to use in preparing their own penal code. Adopted largely by jurisdiction but not very much by others.
3.      The common law is relevant only because the court concludes that the crime specified in the statute has a common law history and thus the common law must guide its interpretation of the statute
B.      Rule of Lenity and the Concept of Fair Import in statutory interpretation
1.      Rule of Lenity – The policy to construe a statue as favorably to the D that its language may permit
2.      Fair Import – Reading a statute within its plain and common meaning
i.       Keeler v. Superior Court – D began kicking pregnant ex-wife in the stomach saying I am going to stomp the baby out of you. The baby was delivered stillborn and had multiple skull fractures. The statute stated “Murder is the unlawful killing of a human being with malice aforethought”. When the murder statute was codified, the common law rule was that the proof that a child is born alive is necessary to prove murder. Furthermore, convicting D of murder would comport with the fair import of the statute’s terms.
C.       MPC §§ 1.05(1) – No conduct constitutes an offense unless it is a crime or violation under this code or another statute of the state
D. 3 different type of techniques that courts use to interpret statutes
1.       Historical/contextual
2.       Textual
3.       Policy-Based/prudential/ethical
E.       Formalism vs. Instrumentalism
1.       Formalism – extracting the elements set forth in the statute and compared the facts to those elements. This is a rigorous piece by piece interpretation of the statute
2.       Instrumentalism – discerns the purpose, intent or function of a sta

retion pervades the process before during and after trial
2.      Example: Prosecution has discretion to choose whether or not charge even in the face of overwhelming evidence. Discretion with sentencing as well
3.      DISCRETION pervades the process, before and during the trial (if there is one); SCREENING operates at a range of different stages in the process and is carried out by a range of different persons. As a result of the intersection of discretion and screening, PERSONAL CHARACTERISTICS such as race, class, age and gender affect the ways in which you interact with the criminal justice system, as victim or as accused person.
B.      Screening Processes
1.         Pretrial hearings are a sort of screening process to prevent inappropriate prosecutions. Directed verdict is another screening process