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



Statutory bases of Criminal Law

i. In most states, criminal law is statutory, and so is the Federal Criminal Code
ii. Although it is possible that certain common law theories are embedded in criminal law, it is largely statutory
1. e.g. To consider what a murder statute means, you will likely have to understand the common law definition of murder as killing with “malice aforethought,” because the legislatures of some States have lifted this term and inserted it into their statutes. Using common-law definitions is one of the interpretive principles that are used to decipher statutes.
a. statutes have common law history, and therefore, common law can guide interpretation of the statute
b. Maryland statute from Statutory Analysis exercise (pg. 23)
iii. Why this is important
1. If a statute cannot be read to prohibit a given action, that action is not usually a crime
iv. How to interpret a statute
1. Statutes must be broken down into their individual elements, and each element must be proven beyond a reasonable doubt (unless otherwise stated)
2. Whether to read statute so that it favors the defendant, or to take the statute at face value (Keeler v. Superior Ct.)
a. Rule of Lenity: to construe a penal statute as favorably [leniently] to the defendant as its language and the circumstances of its application may reasonably permit.
b. Fair Import: reading a statute in accordance with its plain or common meaning
3. Whether to focus on the textually defined elements of the statute, or on its “purpose” or “intent”
a. Formalism (or literalism): rigorous and textual study of the elements of the statute
b. Instrumentalism (or functionalism): seeks to discern the purpose, intent, or function of a statute and to apply it consistently with that purpose, intent, or function. This method reasons inductively, or by analogy, so that the outcome depends on whether the facts are such that the statute was “meant” to apply to them.
4. Some jurisdictions follow the Strict Construction approach, that a criminal statute is to be read narrowly, so as to avoid criminalizing any conduct by too-broad implication.
a. Related to Rule of Lenity
b. Also, may be similar to the “N Guilty People” approach

Elements of a Crime

i. All crimes are composed of elements, which are the requirements that the prosecution must satisfy to prove the defendant is guilty
ii. Two Types
1. Mens Rea: mental state
a. Most statutes require mental fault on D’s part (i.e. criminal state of mind)
b. Some criminal offenses have no mental component (strict liability)
2. Actus Reus: physical act, includes the circumstances, causation, and result or harm
a. includes all of the physical elements of the crime, not just D’s act
b. U.S. v. Zandi
i. Issue: whether there was sufficient evidence for a jury to conclude that the brothers had possession of the opium. The case illustrates deliberation over whether one of the physical elements was actually proven by the prosecution

The Requirement of Proof Beyond a Reasonable Doubt

i. The burden of proof in a criminal case is different from the burden of proof in a civil case
1. Civil Cases – preponderance of the evidence
a. i.e. more than 50% / more likely than not
b. This burden is much lower than criminal cases.
2. Criminal case – beyond a reasonable doubt
ii. Substantive impact of “Beyond a Reasonable Doubt”
1. The burden of proof in criminal cases can have a substantive impact on the definition of crimes. If the words used to define a crime are not precisely chosen, it can be impossible to secure a conviction. Therefore, the burden forces legislators to define crimes carefully.
iii. Proof of Knowledge
1. Can be tricky to prove. So, some lawmakers redefine knowledge merely as “reasonable” or “substantial certainty”
iv. Proof in the Appellate court
1. different than trial court
2. an appellate judge must view the evidence in the light most favorable to the government, and then must affirm if any rational trier of fact could have found proof beyond a reasonable doubt.

An overview of criminal procedure

1. Discretion in the process
2. At many points during the process, there are decision-makers who have discretion to choose according to their own judgment
a. e.g. prosecutor has discretion to decline prosecution of a charge where there is minimally sufficient evidence
b. e.g. judges have wide discretion in sentencing in many jurisdictions
ii. Stages to be concerned about in this course:
1. The Charging Decision: when the prosecuting authority decides what crime to charge
2. The Grand Jury or Preliminary Hearing: decision-maker must decide whether there is probable cause to believe that the evidence satisfies all of the elements
3. Preparation of the Indictment: charging of each element of the crime
4. Jury Instructions: must explain all crime elements and the burden of proof
5. Legal Review of the Sufficiency of the Evidence by Directed Verdict or Appeal: considers whether each element of the crime is proved by sufficient evidence

Why Punish?

i. Competing but overlapping principles
1. Utilitarian View: that criminal law should serve the interests of society
a. Sends a message to D and others that the costs of violating society’s norms is greater than the benefits.
b. There are three (3) Utilitarian theories of why to criminalize an act:
i. Deterrence
1. can be split in two:
a. general deterrence: a specific defendant is used as an example to prevent others in society from doing what he did
b. specific deterrence: meant to deter the person in question not to repeat offend, focus is directly on that person
ii. Incapacitation
iii. Rehabilitation
2. Kantian View: considers the moral blameworthiness of the act
a. There is one Kantian theory: Retributive Justice
i. The criminal deserves to be punished for violating societies norms
ii. AKA: “Just Desserts”
iii. Goal is to level the scales of justice
b. The Kantian view of retributive justice can also include the three Utilitarian principles as well à i.e. retributive justice can have utilitarian side-effects





Retributive Justice







To persuade the avoidance of such criminal acts

To separate the criminal actor from society, so that s/he may not impose more harm on society. Concern is risk of future dangerousness.

That sentencing may be tempered with instruments of rehabilitation, such as probation with conditions

Considers the proportionality of wrongdoing


Using a criminal sanction against an embezzler to send a message to him and others to prevent the same activity in the future

A serial murderer with a long history of prior convictions. Putting him in jail will protect people from him.

For the misdemeanor offense of intoxicated driving, using probation with conditions to help D with alcohol problem

Sentencing a frail, elderly person, who committed a murder many years ago, to a substantial prison term that he will likely die before completing – i.e. the numbers in the sentencing “mean” something, even though they may not be fulfilled

ii. Individualized sentencing for criminals, versus strict adherence to sentencing guidelines
1. Judges will consider the above principles when sentencing a convicted criminal. The judge will have to choose between strict adherence to the sentencing guidelines (statutory sentencing rationales) and departing from them
a. U.S. v. Blarek – District Judge Weinstein took a position of general deterrence, because the case received a lot of media attention and judge capitalized on opportunity to send a message (legal under federal statutes)
i. “The final task is weighing [these] considerations, with particular em

to the statute based on policy reasons:
a. The at night part maybe – because people do not just break in at night
i. But why would you want to keep the at night? Because maybe at night is more secretive, more intent, etc.
b. The dwelling house
i. It might be necessary to broaden this requirement, so people don’t break into other places that aren’t dwelling houses and get away with it (ie: business, cars, etc.)
ii. Do we want to criminalize with the same severity breaking into a house, into a business, into a car, into a vacation home in January when no one is there
c. That the crime the person intended to commit was a felony
i. What if the person intended to commit a misdemeanor? Did the person break in to spray paint the walls, and ended up taking the stereo? Does it matter that the person took something that cost $50 rather than $5000?

Actus Reus – The Requirement of a Voluntary Act (or Omission)

i. Describes the conduct necessary to commit the crime
1. the requirement of conduct means that criminal liability does not punish just thoughts or a person’s physical condition
ii. Ordinarily, conduct must be the product of a voluntary act (or omission)
1. the voluntary act requirement limits how the act occurred
2. MPC lists acts that are not voluntary, and therefore, not criminally liable:
a. A reflex or convulsion, a bodily movement during consciousness or sleep, conduct under hypnosis, or a bodily movement not a product of the actor’s effort or determination, either conscious or habitual.
iii. Problem 3B – Child Draws Frightening Picture of himself killing teacher
1. issue: can a drawing suffice to prove a threat?
2. Harm is not always a requirement for criminal liability, like the statute used here: the legislative policy is based upon the possibility of a reaction that threats usually cause
a. This statute requires:
i. An expression;
ii. The ability to act on that expression; and
iii. Justifiable apprehension

Actus Reus: The Requirement of a Voluntary Act

i. MPC: § 2.01(1)-(2)
1. A person is not guilty of an offense unless his liability is based on conduct that includes a voluntary act or the omission to perform an act of which he is physically capable
2. The following are not voluntary acts within the meaning of this section:
a. A reflex or convulsion;
b. A bodily movement during unconsciousness or sleep;
c. Conduct during hypnosis or resulting from hypnotic suggestion;
d. A bodily movement that otherwise is not a product of the effort or determination of the actor, either conscious or habitual.
ii. State v. Sowry
1. Δ was arrested for disorderly conduct and resisting arrest. A pat-down failed to reveal any weapons or contraband. At the jail, Δ was asked whether he had any drugs on his person. He replied: “No.” A more thorough search when he was booked in revealed a baggie of marijuana in his right front pants pocket. The statute required “knowinly conveying drugs into jail.” Because Δ did not voluntarily go to the jail, his conduct could not render him criminally liable. Δ could not be punished for knowing that the marijuana was in his pocket, because you cannot be convicted for a guilty mind alone – there must be a volutary act, and the act was involutary on his part. The court did not accept the argument that the D’s lie to the police constituted a voluntary act. Therefore, because the violation with which Δ was charged could not satisfy the requirement for criminal liability.
iii. People v. Decina