Select Page

Criminal Law
Villanova University School of Law
Dempsey, Michelle Madden


Professor Dempsey

Fall 2014


I. The Character of Criminal Law

A. Who Defines Crimes? —Role of Courts and Legislatures

· Historically = Courts, development of “common law”

· Modern = Mostly statutes; courts interpret those statutes

1. Notes on Purposes of Criminal Punishment

o Deterrence (Economic)

§ Crime is socially destructive, such behavior is reduced by raising the price one must pay for engaging in that behavior; deter from committing criminal acts with punishment

· Specific: Deters the actor from committing that act

· General: Deters other people from committing that act

o Rehabilitation (Psychiatric)

§ Criminal punishment not to punish offenders, but to treat them so that they can keep their noses clean upon release; “curing” criminal tendencies

o Retribution (Moral)

§ Punishment is morally right and deserved by those who commit crimes

o Incapacitation

§ Incarceration keeps people from committing crimes; severe example = death penalty

o Education

§ Expressive, communicative; shift social norms—educates people about what is wrong

o Mixed Theories

§ More common today to use a mixture of theories


§ Regina v. Dudley & Stephens: Men stuck in boat ate crewmember in order to survive. Convicted of murder, no legal justification for homicide. (What is the purpose of punishment?) Sentence later commuted by Queen Victoria.

B. Proportionality and Vagueness

· Proportionality

o Issue arises when punishments are “grossly disproportionate” to crimes committed

o Severity of crime and punishment must correspond

o Claims are toothless, except in some death penalty cases


§ People v. Kellogg: Homeless man convicted of public intoxication. Kellogg argued this was cruel and unusual—he couldn’t be convicted based on his status. Court said it was his conduct, not his status; he posed a hazard because he was near a freeway embankment.

§ Robinson v. California: Cruel and unusual to impose criminal liability on a person for merely having a disease of addiction; cannot criminalize a status.

§ Powell v. Texas: Declined to extend Robinson to a chronic alcoholic convicted of public intoxication because D wasn’t convicted because of his status, but rather his behavior.

· Vagueness/Void for Vagueness Doctrine

o Excuses D from criminal liability if the crime charged is so vaguely defined that “[people] of common intelligence must necessarily guess at its meaning”

o Vagrancy and loitering laws are known to be vague


· Nash v. United States: Charged under Sherman Antitrust Act. Argued it was vague. Court held there was no constitutional difficulty in enforcing Act because one could reasonably infer what actions are prohibited.

· Gary v. Kohl: Gray passed out Bibles in front of school. He was arrested after taking all necessary precautions; not convicted. Sued for violation of 14th Amendment. Argued statute was vague. Granted in part, words “legitimate business” were too broad.

· Chicago v. Morales: Vagueness may invalidate a criminal law for two reasons: (1) it may fail to provide the kind of notice that will enable ordinary people to understand what conduct it prohibits, and (2) it may authorize and even encourage arbitrary and discriminatory enforcement

C. Crime and Criminal Law

o Criminal law can shift social norms, but not always

o Likelihood of punishment more important than the amount

II. Defining Criminal Conduct

A. Voluntary Acts That Cause Harm

· Conventional definition of crime: Crime is a voluntary, affirmative act that causes harm

o In general, no one can be convicted for failing to act, and no one can be punished for conduct not freely chosen (i.e., no liability for a reflex/convulsion, seizures, etc.)

o BUT, can sometimes be liable for omission if explicitly stated in the law; example: failing to file income taxes

o Martin v. State: Man drunk in home, police found him and took him to a public place and charged him with public intoxication. Can’t be punished for an act that isn’t voluntary.

B. Interpreting Conduct Terms in Criminal Statutes

1. Greater and Lesser Crimes

· Punishment doesn’t depend on how much harm is done, it depends on the seriousness of the crime as defined by statutes

· The elements of the crime are included in a more serious crime, but the more serious crime has more elements

· Anti-merger Rule: Can’t be convicted of all lesser included offenses

o Murder v. Aiding and Abetting Suicide

§ People v. Mattlock: Active/passive distinction. If active role in death of another it’s murder, if passive role it’s aiding and abetting.

§ In re Joseph G: Entered suicide pact with friend, friend died, J.G. survived. Trial court found murder in first degree. Appellate court found aiding and abetting because active/passive distinction didn’t apply. J.G. was genuinely t

, because record didn’t show he intended to deprive.

· State v. Morris: Morris took running car from victim’s driveway. D said he didn’t intent to permanently deprive the owner of the car, so he should be charged with lesser-included offense. Relying on Schminkey, court concluded the fact that he took the truck without consent didn’t mean he intended to permanently deprive. Insufficient evidence to prove intent to deprive.

o Mistake of Fact:

§ Mistake of fact is a defense if it negates necessary mens rea

§ General Intent—Mistake must be both honest AND reasonable, negating mens rea

§ Specific Intent—Mistake must only be honest, not reasonable


· U.S. v. Oglivie: Thought he was divorced, he wasn’t. Falsely entered paperwork and married again. Succeeded on mistake of fact with regard to false official statements, specific intent—honest mistake. Failed on mistake of fact with bigamy, general intent crime—honest but not reasonable mistake.

· U.S. v. Bingar: Binegar was giving free contact lenses to everyone rather than people with specific qualifications. He wasn’t aware this wasn’t allowed. Charged with larceny (specific intent crime) and plead guilty. Appellate judge said he should’ve been instructed with mistake of fact defense. Sentence reversed; plea not provident.

· State v. Bankston: Bankston took items from army base without paying for them. He claimed cashier and her husband said they would pay for them later. At trial for larceny, D said his honest mistake was a defense. Court said no, it was general intent—needed to be both honest and reasonable. Appellate court reversed; said crime was specific intent and his mistake only needed to be honest.

· Stagner v. State: Stagner found by police in stolen car. She said she didn’t know the care was stolen. Man who gave her the car testified that he told her it was stolen. Asked judge to instruct jury on honest and reasonable mistake of fact. Trial court said no because her story wasn’t credible. Supreme Court reversed, saying it was up to the jury to decide on credibility.