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

Criminal Law
Spring 2009


Practical Influences on Criminal Law
– Discretion
o Prosecutorial, judicial
– Races, age, class, gender, classification- also mental illness
– Decisions affected by cultural beliefs and public rhetoric
– Screening
– Resources

Keeler v. Superior Court
– Woman’s ex-husband saw she was pregnant and said he was “going to stomp it out of you”
o He pushed her against the car, kneed her stomach and stuck her in the face several times
o Fetus sustained a fractured skull and was delivered stillborn
– Issue: whether an unborn but viable fetus is a “human being” within the meaning of the CA statute
– Court: looks to common law, fetus must be quickened, born alive, lives for a brief interval, then dies
o Also has jurisdictional problems
§ Cannot expand the statute and impute words that aren’t meant to be there
o Constitutional problem of notice
§ Violates due processThe Supreme Court in Staples, a leading case on strict liability, says the base rule in contemporary Anglo-American law re intent is that mens is the rule not the exception at common law. With purely statutory law, statutory construction becomes especially critical, and “some indication of congressional intent, express or implied, is required to dispense with mens as an element of a crime.”

How we punish crimes
– Retribution
o Just desserts
– Utilitarian
o Deterrence
o Incapacitation
o Rehabilitation
– Restorative Justice
– Reintegrate the community
– ***consider individualized vs. standardized sentencing***
Consider proportionality of punishment to crime

Criminal Law is Statutorily Based
– **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**
– Statutes must be interpreted
o Historical/Contextual- including common law history and contemporary context
o Textual- including MPC, other provisions of statutory penal code, dictionaries, and constitutions
o Policy-based/prudential/ethical, e.g. construe penal statutes favorably to defendant; courts should not create offenses

Crimes Have Two Main Elements
– Mens Rea
– Actus Reus

Every Element of a Crime Must Be Proven BARD

Two Models of Homicide
– PA Model
– MPC Model

PA Model
– Degrees of Homicide
o 1st Degree
§ requires adding deliberation/premeditation to malice aforethought
o Second Degree
o Voluntary manslaughter
§ Passion killing – intentional but provoked
o Involuntary manslaughter
§ Grossly negligent homicide or misdemeanor manslaughter
o Vehicular Manslaughter
– Malice Aforethought
o Express- intentional killing
o Implied
§ Intent to cause great bodily harm
§ depraved heart/abandoned and malignant heart (extremely reckless)
§ ancestor of felony murder (killing during commission of a felony)
o Type 1 could become reduced to manslaughter if provocation engendered heat of passion
o Killing while resisting a lawful arrest, a fourth common law implied malice category, never caught on in the U.S
– Degrees of Homicide
o Murder
§ Relative culpability of murders taken into account at sentencing (passion)
§ 1) committed purposefully or knowingly; or 2) it is committed under circs manifesting extreme indifference to the value of human life
§ State v. Rivera- 2 men shot and stabbed another man to death
· Coroner couldn’t determine which shot or stab killed the man
· In jury instruction, prosecutor left out causation element
· Court- harmless error w/o objection by defense counsel
o Manslaughter
§ Includes involuntary manslaughter, for which the MPC mens standard is recklessness
o Negligent Homicide
– Criminal homicide- purposefully, knowingly, recklessly, or negligently causes the death of another human being

– In PA, can “an instant”
o Others are more expansive
o Carroll- def shot wife 5 minutes after an extended, heated argument (first degree)
– Brutality of killing itself can’t support premed/deliberation. However, some courts find it does; some find it tends to show frenzy not premed/deliberation
– Prosecution bears burden of proving BARD that there was premed/deliberation; (rebuttable) presumption that unjustified killing is second degree murder
– Intent to kill must have been formed upon pre-existing reflection… (and have) been the subject of actual deliberation or forethought
– Evidence of premeditation…look to:
o evidence of planning activity
o evidence of motive
o manner of killing “so particular and exacting” that the def must have acted with a “preconceived design” to take deceased’s life in a particular way
§ Usually require all three or at least extremely strong evidence of 1, or evidence of 2 in connection with 1 or 3

Voluntary Manslaughter
– Intentional killing in the heat of passion
– Abandoned or malignant heart homicide- Unintentional
§ Knoller- vicious dog attacked and killed neighbor
· USSC- “engage in conduct that endangers the life of another”
· Dog was trained for violence, obviously dangerous
o Recklessness plus
o Mainly used as a defense in male killing female spouses

Provocation (can act as partial defense)/VMS
– Provocation, which reduces an intentional killing that would otherwise be with “mali

o Believe it’s inappropriate to convict for murder with a lesser mental degree of fault
o No statistical evidence murders coincide with felonies
– Limitations on FM
o Inherently dangerous felony or dangerous act.
o Merger (lesser degrees of homicide an sometimes assaults can’t be “bootstrapped” to fm; can’t serve as predicate felonies).
o Causation: but for or proximate
– Roth & Sundby (con of FM)
o All rationales are faulty- deterrence, transferred intent, retribution & general culpability
o Rule served to more severely punish incomplete or attempted felonies
o We have a better understanding of mens rea now
– Crump & Crump (pro)
o Society’s mental acceptance of FM- reflection of public’s attitude
o Deterrence does work
– State v. Anderson- took loaded shotgun and aimed at Roger’s head- gun went off
o Two defns
§ Inherently dangerous- look at previous felony (possession of weapon)
§ Dangerous act- totality of the circumstances
o Need causation between the two acts for FM to apply
§ The killing of Roger didn’t advance the felony of possession

– Merger
o Can knock out FM
§ Only some acts can be knocked out- lesser homicides and assaults resulting in death
o Independent felonious purpose as a means of preventing merger and allowing FM to be based on assaultive crimes
§ State v. Hansen- discharged a firearm into an inhabited dwelling
o Merger rule is inapplicable when the def exhibited a collateral and independent felonious design that is separate from the resulting homicide
· Argument in favor of assault as predicate- not so clearly bootstrapping
o Try and portion off different acts within a situation
o Kilburn- man broke into house, assaulted and then shot and killed victim
§ Court broke it into 2 separate acts in order to apply FM
· Act 1- broke into house with a fun
· Act 2- the actual shooting of the victim
§ Act 1 didn’t merge…was independent and then act 2 followed after an interlude
· **However, other courts would view the gunman’s assault as a single course of conduct**
– Causation
o Actual/but-for
§ Deaths wouldn’t have happened but-for the felonious act
o Proximate