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Criminal Law
Villanova University School of Law
Chanenson, Steven L.

Steve Chanenson
Criminal Law
Fall 2010
I.                  Ch 1- Introduction
a.       Statutory Basis: Criminal law in America is predominantly statutory.  Common law guides interpretation of statutes. 
                                                  i.      Interpretative methods:
1.       Policy
2.       Rule of Lenity à to construe a penal statute as favorably to the D as its language and the circumstances of its application may reasonably permit. 
3.       Rule of Fair Import à Reading a statute in accordance with its plain or common meaning.
4.       Common Law Precedent and Contemporary Science à urged by gov’t to read statute in accordance with development of medical science; “viable” argument.
                                                ii.      How do Courts Interpret Criminal Statutes – Techniques
1.       Historical/Contextual
2.       Textual
a.       Other provisions, MPC (prescription for the law, not a description of [restatement]) &c.
3.       Policy-Based/Prudential/Ethical
                                                iii.      Ways to Interpret a Statute
1.       Textualist/Formalism à is a relatively rigorous interpretation of law.
2.       Functionalist/Contextualist/Instrumentalism à seeks to discern purpose, intent or function of a statute and to apply it consistently with that function. 
b.      Beyond a Reasonable Doubt
                                                  i.      Definition à Every element of a crime has to be proven beyond a reasonable doubt.
                                                 ii.      Substantive Impact of Burden of Proof à if the words used to define a crime are poorly chosen, it may be impossible to secure a conviction even when it appears D should be punished
                                                iii.      Proof of Knowledge à how does a prosecutor prove D “knew” something, and how does he supply evidence so convincing that he removes all reasonable doubts about knowledge?
1.       EX/  US v. Zandi à Whether Zandis possessed opium—did they have knowledge?
a.       Court à Mehdi’s behavior was indicative of constructive knowledge.  First, the package was addressed with a false shipper.  Ds paid for a carrier’s receipt—but when the Mehdi learned of a customs inspector waiting for him, he abruptly departed.  Customs inspectors then checked the package
b.      Constructive possession à when the D exercises or has the power to exercise dominion or control over an item.  This was proved beyond a reasonable doubt because the Zandis sent their uncle money in Pakistan to support the drug transaction, suspicious phone call about “gifts,” and the false exculpatory statement.
                                               iv.      Standard of Proof in Appellate Court à Appellate judge must review the evidence in light most favorable to the government and then must affirm if any rational trier of fact could have found proof beyond a reasonable doubt. 
                                                 v.      EX/ Keeler v. Superior Court à Whether an unborn but viable fetus is a “human being” within the meaning of the CA statute defining murder
1.       Court à It would be constructive to find this as murder, because the statute of murder does not explicitly include unborn fetuses
2.       Majority à Takes a formalist reading of the statute to avoid making new crime.
c.       Theories of Crime and Punishment (Policy)
                                                  i.      Four Theories
1.       Deterrence à “send a message”
a.       Utilitarianism à Use criminal law to send message to D and others that the costs of violating norms is greater than the benefits (utilitarian)
b.      Prevention- Specific deterrence aimed at that specific criminal so that he doesn't commit a crime again. Focus on the individual, not society.
2.       Incapacitation à separate one from society by lengthy incarceration with intention to incapacitate one from future harm
3.       Rehabilitation à to temper some sanctions
4.       Retributive Justice à proportionality to wrongdoing
a.       Kantian Retributivism à Sanction behavior because the D deserves to be punished for violating society’s norms (retributive) and
                                                ii.      Other Methods of Punishment
1.       Reintegrative Approach to Juveniles
a.       Communities given power to take care of situations themselves
2.       Shaming
d.      Almost All Offenses Have Mens Rea and Actus Reus
                                                   i.      Mens Rea
1.       Most criminal statutes require mental fault on the part of D, or a criminally culpable state of mind.  Strict liability cases vanish this.
                                                 ii.      Actus Reus
1.       Includes all physical elements, not just the act.
II.               Ch 2- Homicide
Homicide Chart (C p. 40)
(A)            Pennsylvania Pattern
(1)    First degree murder (malice aforethought, and deliberate, premeditated killing);
(2)    Second degree murder (malice aforethought only or depraved/AMH);
(3)    Voluntary manslaughter (passion killing/provocation);
(4)    Involuntary manslaughter (reckless homicide; criminally negligent homicide); and
(5)    Vehicular manslaughter (grossly negligent unlawful driving, etc.).
(B)       The Model Penal Code
(1)    Murder (causing death intentionally or knowingly—or with recklessness and extreme indifference);
(2)    Manslaughter (which includes what would be both voluntary and involuntary manslaughter under Pa Pattern); and
(3)    Negligent homicide.
a.       First Degree Murder
                                                  i.      Requirements à Murder usually requires “malice aforethought”
1.       Express Malice à intentional killings.
a.       First degree murder usually requires premeditation and deliberation (intent to kill).
                                                                                                                           i.      Brutality in and of itself does not establish premeditation
                                                                                                                        ii.      Some courts find brutality supports premeditation while others believe that it negates premeditation/ Some courts treat every stab/shot after the first as premeditated by default. 
                                                ii.      Misnomer/ Term of Art: One does not necessarily have to act with malice or think about the act beforehand.  Even some accidental killings have malice aforethought.
                                                iii.      The Pennsylvania Pattern à has a second degree of murder
                                               iv.      Examples:
1.        Commonwealth v. Carroll à D contended that it would take longer than five minutes to generate deliberation and premeditation because he was of good character.  Court rejects this argument and holds that premeditation can happen in an instant.
2.        People v. Anderson à Crazy boyfriend kills girlfriend’s adolescent daughter—stabbed her 60+ everywhere.  Jury ruled second degree murder for no premeditation.  Court lays out three factors in determining premeditation and deliberation.  One usually needs a combination of the factors, but in cases where one factor is gross, courts will find premeditation and deliberation: Planning Activity; Motive; Method of Killing
3.        People v. Perez  à Multiple stab wounds to pregnant woman dropped to second degree murder.  S.Ct. overrules this
a.        Planning Activity à surreptitiously entered the house
b.        Motive à so baby could not be ID’d
c.        Method of Killing à points to thought, as the blood of knife in drawer supports inference that D went to kitchen for another knife (like reloading a gun)
Implied Malice: Second Degree Murder or Reckless Killing
Intent to cause great bodily harm (GBH),
Depraved heart/abandoned and malignant heart (extremely reckless), or
Felony murder (killing during a felony)
b.      Reckless Killings
                                                  i.      Abandoned and Malignant Heart (2nd Degree Murder)
1.       Definition à A depraved heart is shown when one “reasonably anticipates that death to another is likely to result” from his actions
a.       Risk taking that has such a high degree of indifference to human life that the actor may well have intended to kill
b.      In order for D’s behavior to be so reckless that it constitutes malice, it must show extreme indifference to human life
                                                                                                                           i.      Different from IVMS which is reckless action with awareness of an unacceptable risk
2.       Example
a.       US v. Fleming à The crime went from IVMS to depraved heart by the gross hideousness of D’s driving. Recklessness requires one is subjectively aware of the risk—this is proved on policy grounds
                                                ii.      Involuntary Manslaughter -Type Offense
1.       Elements
a.       One adverts to/is aware of an unacceptable risk of death and conducts himself carelessly anyways
b.      Risk of death must be substantial and unjustifiable
c.       Nature and degree of risk must be so great that disregarding them is a gross deviation from the standard of conduct a reasonable person would follow in the situation
2.       Example
a.       Robertson v. Commonwealth à D was aware of the substantial risk of death he created by jumping the gap in the bridge.  He knew he was being chased and that the officer would attempt the jump as well
b.      Feinberg à Differentiates IVMS from criminally negligent homicide.  By selling the sternos to junkies he knew were going to try to get high off of it, D was aware of the substantial possibility of death. 
                                                iii.      Criminally Negligent Homicide
1.       One’s total failure to perceive a risk—awareness is not necessary
a.       Nature and degree of risk must be so great that disregarding them is a gross deviation from the standard of conduct a reasonable person would follow in that situation
c.       Voluntary Manslaughter
                                                  i.      Requirements à VMS is usually considered a “passion killing.”  There is no malice aforethought requirement.  Questions:
1.       Was the killing intentional?
2.       Was the killing provoked by adequate or reasonable cause? 
a.       NOTE: Words alone usually do not qualify for adequate cause.  Though, the MPC suggests in some circumstances they do
                                                                                                                           i.      Some courts require an inquiry into the provoker
                                                                                                                         ii.      Provocation is partly justification, partly excuse.  It is mostly used when men kill female intimates.
b.      NOTE: MPC provocation doctrine is “severe emotional disturbance.”  This would allow one to use it in other circumstances outside of typical H&W situation
3.       Was the provocation so severe that the defendant lost control?
a.       Some courts use subjective standard (this defendant…?) most use objective standard à Would a reasonable person have lost self control?
b.      However, sometimes the court also uses particular features of a D to decide the reasonable person standard.  Therefore, it is objective with subjective elements; EX/ would a reasonable man whose wife cheated on him act this way (remember: some courts don’t do this).  There is no line drawn for subjectivity
4.       Was there adequate time for passion to cool?
a.       There is no objective time limits on cooling off.
5.       Was the victim the provoker?
                                                ii.      When Trial Judge Should Submit a VMS Instruction à Generally when any reasonable juror could conclude that the facts support the theory presented by the party requesting instruction.  If evidence raises possibility of VMS, judge must charge jury with it
                                              iii.      Reasonable Person à Courts have a difficult time characterizing the reasonable person.

                                 ii.      Knowledge that death most likely will result from your act
                                                iii.      Extreme recklessness (abandoned and malignant heart/depraved heart) as to the likelihood of death resulting from your act
                                               iv.      Recklessness as to the likelihood of death resulting from your act.  You are aware of risk, advert to it, and do it anyways
                                                 v.      Criminal negligence as to the likelihood of death resulting from your act.  Reasonable person would perceive risk, but you didn’t
1.       *Some Jurisdictions à Civil negligence as to the likelihood of death resulting from your act
g.       The Pennsylvania Pattern and MPC as Examples
PENN PATTERN [Based on mens rea (because actus is really the same)] Murder (degrees because all murders were once capitol offenses)
·         1st degree = malice aforethought AND deliberate and premeditated
·         2nd degree = malice aforethought (or depraved and malignant heart)
·         Unlawful killing without malice (or where malice is mitigated)
·         Types:
o   VMS: intentional killing where malice is mitigated (by passion)
§  Provocation as to rouse reasonable person to heat of passion
·         Intentional, but in the heat of passion
§  Due to diminished capacity caused by mental illness, defect or intoxication à D didn’t have malice
o   IVMS: Recklessness, or gross deviation from general standard of care (knew of risk and proceeded anyway).
§  Killing in the commission of an unlawful act not amounting to a felony
§  Or in the commission of a lawful act which might produce death in an unlawful manner without due caution & circumspection
Criminal Negligence à Should have known of risk, didn’t, reasonable person would’ve
Vehicular manslaughter
MPC Homicide §§ 210.1 – 210.4
210.1 Criminal Homicide.  (1) Four levels: purposely, knowingly, recklessly or negligently causing the death of another human.  (2) Murder, MS or negligent homicide
210.2 Murder.  Only one degree, committed either: purposefully or knowingly, or recklessly (EX/ Not in Texas) under circumstances manifesting extreme indifference to the value of human life.  Such is presumed when: accomplice in commission of, or an attempt to commit, or flight after committing or attempting to commit [serious crimes].  Death is available. 
–          There is no malice requirement, nor is there a premeditation-deliberation formula or second degree crime.  Variations in the severity of murders are dealt with at sentencing
–          Some include intention to cause GBH where the act has to be clearly dangerous to human life that causes death (this is a revision of old common law rule).
210.3 Manslaughter.  When (a) committed recklessly, or (b) under influence of extreme mental or emotional disturbance for which there is reasonable explanation or excuse.  Reasonableness of such explanation/excuse shall be determined from viewpoint of a person in actor’s situation under circumstances as he believes them to be.  MS is felony of second degree [Includes Equivalents of Both VMS and IVMS]  
210.4 Negligent Homicide.  Homicide committed negligently (above) is a felony of the third degree.
h.      Notes on MPC Homicide
                                                   i.      No Degrees of Murder Under MPC à There is no malice requirement, nor is there a premeditation-deliberation formula or second degree crime.  Variations in the severity of murders are dealt with at sentencing.
                                                 ii.      Lesser Homicidal Offenses: MPC Manslaughter Includes Equivalents of Both VMS and IVMS à First, it covers murder under “extreme mental or emotional disturbance” for which “there is reasonable explanation or excuse.”  This is another way of saying “passion killing.”  Second, the MPC manslaughter covers “reckless killings.”  Manslaughter is a lower degree felony than murder, with a lower maximum sentence
                                                iii.      Why Only One Degree of Murder à There is a theory here that some unpremeditated homicides can be worse than some premeditated ones. 
                                               iv.      Replacing Depraved Heart with “Recklessness” Under Conditions of “Extreme Indifference to Human Life”  à  the language used by the MPC of “extreme mental or emotional disturbance” arguably expands the traditional VMS concept: the disturbance need not be sudden, and it is not hemmed in by some of the historic limits on cooling off or provocation.
                                                 v.      Mental State Definitions à “Purposefully,” “knowingly,” “recklessly,” and “negligently” limit the mens rea under the MPC (no “extreme recklessness”)