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Criminal Law
Wayne State University Law School
Dillof, Anthony M.

Dillof, Criminal Law, Fall, 2011

Theories of Punishment:

Utilitarianism:

Basic Principal for Punishment:

(1)Maximize happiness of society

(2) Pain of punishment is < the crime would cause

(3) A criminal acts because they think the pleasure if better then the punishment

Forms:

(1) General Deterrence: Example for the rest of the community

(2) Specific Deterrence: Stop future conduct by that person and stop them at this time

(3)Rehabilitation: Rehabilitate the individual

Retributivism:

Basic Principal for Punishment:

(1) Punishment is justified when deserved

(2) When the person violated society on purpose

(3) Punish regardless of benefit to society

Forms:

(1) Assaultive Retribution: Societies revenge against them, to stop street justice

(2) Protective Retribution: Secure moral balance

(3) Victim Vindication: if we don’t punish society gets a bad idea of the government that criminals are better than everyone else.

Actus Rea

Elements of an Offense:

Conduct: the action or omission of the person is the crime. (Drunk Driving)

Result: The result of the person’s actions is the crime. (Murder)

Social Harm: Negation, endangering or destruction of an individual, group, or state interest, which is deemed socially valuable. (Both types of crimes need a social harm)

Attending Circumstances: Elements that are not the conduct of result

Voluntary Action

Common Law:

Elements of an actus rea must be a;

(1) A Voluntary Act or Omission:

Test for a Voluntary Act: They had the will to do this.

-Will= effort and determination

Result: A voluntary act caused the prohibited result

Conduct: If a voluntary act constitutes or caused the prohibited conduct

Model Penal Code:

Section 1.13

Act/Action: a bodily movement whether voluntary or involuntary

Conduct: An action or omission and its accompanying state of mind, or, where relevant, a series of acts and omissions.

Elements of an Offense:

(1) Such conduct, or

(2) Such attendant circumstances, or

(3) Such a result of conduct.

Elements of an actus rea must be a;

(1) A voluntary act which he is physically capable of performing (1.13(3)):

2.01(1): A person is not guilty of an offense unless his liability is based on conduct which includes a voluntary act or the omission to perform an act of which he is physically capable.

2.01(2): The following are NOT voluntary acts which the meaning above:

(a) A reflex or convulsion; or

(b)A bodily movement which unconsciousness or asleep; or

(c) A conduct during hypnosis or resulting from hypnotic suggestion; or

(d) A bodily movement that otherwise is NOT a product of the effort or determination of the actors, either conscious or habitual.

-This is a double negative, it is actually stating that if the person efforts or determination is the act it equals voluntary.

-Problem: Time Framing (how far back do we go?)

Omission

Model Pena Code (This is becoming the following of the states)

1.13 (4): Omissionà A failure to act

2.01(3): A person cannot be held liable for omission without an act UNLESS,

(a) The omission is expressly made sufficient by the law defining the offense

-Example: Not showing up for jury duty

-An already existing duty

(b) A duty to perform the omitted act is otherwise imposed by law

-You have a duty to perform the act, which was given to the person by another source of law.

-Example: A contract to refrain from selling to “x” or any other type of law states that it is not allowed.

Common Law:

Work down the list to see if they are liable for omission

(1) A statute creates a duty

-Example: Report child abuse (murder)

(2) Where one stands in a statutes relationship to another

-Example: Your child is drowning in a pool and you don’t save them (murder)

(3) Where one has assumed a contractual duty to care for another

-Example: Life guard does not safe a drowning person (murder)

(4) Where one has voluntarily assumed to care for another and then secludes that person from receiving help from others.

(5) Sometimes, if a person creates a risk of harm to another and then fails to help them

(It’s not omission not the tell the police that a crime is going on)

Difference Between and Act and Omission for Common Law

Act: Causing harm or making harm worse

Omission: With holding benefits which would make them better (You keep them at Equal Librium) or puts back to Equal Librium.

**This is not a strict rule but a good tool to help measure**

Cause the harm v. allow the harm

Difference Between Act and Omission for the Model Penal Code

We were told not to worry about it.

Mens Rea (Guilty Mind)

This must be attached to all aspects of the crime, attending circumstances, conduct, and result.

Common Law:

There are Two Types: Usage depends on the jurisdiction, however, most use narrow.

***To determine the mind set, remember that actions are louder than words***

However, you can’t presume any facts!

(1) Broad: Any sense of blameworthiness in their mind

-They action or omission for a “bad” reason

(2) Narrow: This is when a person has a particular type of mind set. (This is commonly used now)

Common Law Definitions: All turns on INTENTIONAL

Malice:

(1)Did the person act with the intention to do that particular kind of harm, or

(2) Was the person reckless as to whether such harm could occur?

-Could they foresee this taking place?

Intentional: The person’s conscious objective or purpose is to engage in that conduct or product the result or the person knows that is may happen.

-Knows: The person is consciously aware that such result is particularly certain to be caused by his conduct.

Transferred Intent: As long as they had the intention, who it was aimed

e public (Violates due process rights of the Constitution)

Model Penal Code:

Material Element: Is the conduct, result, and attending circumstances

2.02 General Requirements of Culpability

(1) Minimum Requirements of Culpability. Except as provided in Section 2.05, a person is not guilty of an offense unless he acted purposely, knowingly, recklessly or negligently, as the law may require, with respect to each material element of the offense.

(2) Kinds of Culpability Defined

(a) Purposely (Intentional). A person acts purposely with respect to a material element of an offense when:

(i) if the element involves the nature of his conduct or a result thereof, it is his conscious object to engage in conduct of that nature or to cause such a result; and

(ii) if the element involves the attendant circumstances, he is aware of the existence of such circumstances or he believes or hopes that they exist.

(b) Knowingly. A person acts knowingly with respect to a material element of an offense when:

(i) if the element involves the nature of his conduct or the attendant circumstances, he is aware that his conduct is of that nature or that such circumstances exist; and

(ii) if the element involves a result of his conduct, he is aware that it is practically certain that his conduct will cause such a result.

(c) Recklessly. A person acts recklessly with respect to a material element of an offense when (aware of the risk)

(1) He consciously disregards a substantial and unjustifiable risk that the material element exists or will result from his conduct.

(2) The risk must be of such a nature and degree that, considering the nature and purpose of the actor’s conduct and the circumstances known to him, its disregard involves a gross deviation from the standard of conduct that a law-abiding person would observe in the actor’s situation.

Example: Russian Roulette

(d) Negligently. A person acts negligently with respect to a material element of an offense when (Lack of awareness were a reasonable person would have had the awareness, but for some reason this person did not)

(1) He should be aware of a substantial and unjustifiable risk that the material element exists or will result from his conduct.

(2)The risk must be of such a nature and degree that the actor’s failure to perceive it, considering the nature and purpose of his conduct and the circumstances known to him, involves a gross deviation from the standard of care that a reasonable person would observe in the actor’s situation.