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

FALL 2012

Criminal Law In General:

What makes something criminal?
·         Punishment:
o   D may be said to suffer punishment when, but only when, an agent of the government pursuant to authority granted to the agent by virtue of D’s criminal confliction, intentionally inflicts pain on D or otherwise causes D to suffer some consequence that is ordinarily considered to be unpleasant
o   The action must be explained as serving retributive or deterrent purposes to be considered punishment.

Common Law or Model Penal Code?
·         Proper jurisdiction will dictate offenses, standards, etc
·         Model Penal Code:
o   Released in 1962, sets out a coherent set of standards for criminal law
o    It is not a restatement of the law – it’s not the LAW, it’s trying to advance the laws
o   It meant to serve as a model
o   38 states have revised their criminal code based on the MPC, 2 more on in the process of doing so.

Principles of Punishment:

·         “Utility, use, utensil, usefulness”; considers what would be beneficial to society
·         Making decisions based on a cost-benefit analysis
·         Compare advantages to disadvantages, benefits to burdens, and selecting one that maximizes net social utility (maximizes different between benefits and burdens)
·         The right or just act is the one that maximizes net social happiness or welfare (Net welfare = Social Benefit – Social Cost)

Purpose of Punishment:
·         Specific Deterrence – person who is being punished personally is less likely to commit a future crime.
·         Incapacitation – physically prevent person from committing crime
·         Rehabilitation – improve the person so they don’t want to commit crimes
·         General Deterrence – through punishing one person you scare others from committing crimes
o   Augmenting happiness – general object of all laws is to augment `the total happiness of the community by excluding as much as possible everything that takes away from happiness
o   Role of punishment – both crime and punishment is evil because they both result in pain to individuals and to society as a whole. Therefore the infliction of punishment is undesirables unless doing it will prevent a greater amount of pain in the future
o   Criticism:
§  Uses criminals as a means to end.
§  No caring about the individual

·         Punish people as much as they deserve (as opposed to benefit of society)
·         Punishment is intrinsically valuable.
·         Restores moral balance – people have taken their fair share and by punishing them they are giving back what they took
·         Fair to treat people as they’ve treated others
·         Vindicates victim, honors criminal (you are a person worthy as being punished and we take you seriously as an autonomous agent).
·         Desert is a matter of responsibility for harm (either risked or caused). Is there responsibility for harm? Either risked or caused.
·         Just deserts – Punishment of a wrongdoer is justified as a deserved response to wrongdoing. Punishment because of the wrongdoing, regardless of deterrence. Backward looking, what did the person do and what does he deserve?
·         Criticism
o   What is the point of punishing someone if it doesn’t do anything for society?
o   Policies are based on anger and emotion rather than reason
o   Response: anger is good if directed at the wrong doer
Denunciation/Expressive Theory:
·         Punishment is justified because it creates a moral balance and maintains social cohesion.

Mixed Theories:
·         Three of them:
o   Limiting Retributivism
§  Punish within the range deserved (Retributivism)
§  But – Choose point in the range that maximizes social utility  (Utilitarian)
o   Other (“Hybrid”)
§   Punish to the extent that maximizes social utility (Utilitarianism), but
§  NEVER punish more than what is deserved (even if it means a lot of social utility) (Constrains Utilitarianism)
·         Ex- For a crime, a util believes 10 years, and retribut believes 5 years, what would the hybrid theory say? Answer: 5 years. Hybrid places a cap on utilitarianism.
·         Ex- If util says 5 years and retrib says 10 years, under hybrid theory what would be the result? The answer would be 5 years. Because hybrid theory is mainly a utilitarianism concept but with a retributivism restraint.
o   Hart’s Theory – questions of who to punish and how much falls under retributivist theory but the why we punish falls under utilitarianism.
§  Punish according to retributivist recommendations
§  Do this because it will maximize social benefit (Utilitarianism)
§  Hart’s theory based on Denunciation/Expressive Theory p. 18.
§  States that usually people do not decide not to do crime because of deterrence/fear of punishment, but they don’t do crime because they believe it is wrong
§  It shows people what society states are the norms of what is allowed and what is not allowed, which people then internalize.
§  So we punish to make a point. Educate and establish norms. So back to Hart’s theory: by punishing people by what they deserve (retributivist) we are sending a message of what is not allowed and this is a very important, powerful message in maximizing social welfare. If we punished people MORE than what they deserve (which may happen under utilitarianism) we confuse people as to what society is saying is allowed or not allowed.

Elements of an Offense

Model Penal Code:

Actus Reus:
-Conduct and/or results
-Attendant circumstances

Mens Rea:
-Mental State

Structure of an Offense (MPC)
1.        Conduct
a.        Act/Omission
b.        Mental State
2.        Attendant Circumstances
3.        Result

Section 1.13 subsection (9):
“Element of an offense” means
(i)                    Such conduct or
(ii)                  Such attendant circumstance or
(iii)                 Such a result of conduct as
a.        Is included in the description of the forbidden conduct in the definition of the offense; or
b.        Establishes the required kind of culpability; or
c.        Negatives an excuse or justification for such conduct; or
d.        Negatives a defense under the statute of limitations; or
e.        Establishes jurisdiction or venue;

*Mens Rea (Mental State) is a part of the MPC even though it doesn’t state it. It is a part of “conduct”. See Section 1.13(5)

Actus Reus :

·         Actus Reus of an offense is the physical or external component of a crime. Must be distinguished from the mental or internal component of the crime.
·         Conduct and Result
o   Conduct- something that you do
o   Law prohibits specific behavior such as driving drunk or solicitation to commit murder.
§  Example of conduct: breaking and entering
o   Conduct offense – Your conduct is illegal even if it doesn’t have a result.
§  Example is driving while intoxicated.
o   Result – things that contingently follow from what you do
o   Law punishes because of an unwanted outcome, such as the death of another person or destruction of a dwelling, etc.
§  Example of result – causing the death of a person.
o   Result offense – A crime that does not specify a conduct.
§  Example – Arson, because the crime does not specify a conduct (doesn’t say using a match or a lighter or etc, just talks about the act).
o   Conduct AND Result offense: strangulation – putting pressure on someone’s windpipe until they die. Has a result AND conduct.
·         Attendant Circumstance – “A condition that must be present, in conjunction with the prohibited conduct or result, in order to constitute the crime.”
o    Conditions that must be present in order for the offense to occur.
o   Ex: Statutory rape – “with a person UNDER 18”, Under 18 is an attendant circumstance.

Voluntary Act:

·         General Rule: A person is not ordinarily guilty of a criminal offense unless his conduct includes a voluntary act. This is a CL principle and it is also the position of the MPC §2.01

A “voluntary act is a willed muscular contract or bodily movement by the actor”

Slights muscular contraction or bodily movement constitutes the act

Act is “willed if the bodily movement was controlled by the mind of the actor”

Act is unwilled/involuntary vs. willed/voluntary for example when “my hand came up” vs. “I raised my hand”

Common Law:  Basic Voluntariness Requirement:
In general a person is only liable
1. For a result offense:
If a voluntary act (accompanied by the relevant MR (mens rea)) caused (actual and prox) the prohibited result
2. For a conduct offense:
If a voluntary act (accompanied by the relevant MR) constituted or caused (actual & prox) the prohibited result. Ex- asking a hypnotist to hypnotize you so you can “involuntarily” steal a laptop. You’re still liable.

§ 1.13(2) does not give a definition of “voluntary act” instead it defines an “act” as a bodily movement whether voluntary or involuntary. §1.13(5) “conduct” means an action or omission and its accompanying state of mind.

§2.01 defines voluntary by providing examples of involuntary actions including; a reflex or convulsion, bodily movement while unconscious or asleep, conduct during hypnosis or as a result of hypnotic suggestion, a bodily movement that otherwise is note a product of the effort or determination of the act, either conscious or habitual.

Therefore, we can say that based on above info, under the MPC, a voluntary act is a bodily movement that is a product of effort or determination of t

ere. Ms. Burns was over 30 years of age, and her conduct indicates that she had plenty of experience with carousing with men and consuming alcohol and drugs. Hence, while the defendant may have had a moral duty to protect Ms. Burns, the law imposes no such duty on him.
o   In  Barber v. Superior Court (CL Jurisd) Two physicians were charged with murder and conspiracy charges after discontinuing treatment of a comatose patient at the request of the deceased’s family, where there was virtually no chance of recovery. Murder is the unlawful killing of a human being, to be distinguished from those killings which society has deemed justifiable. This court deems the cessation of life support as an omission of further treatment as opposed to an affirmative act and there is no criminal liability for an omission where no legal duty is owed. (What the doctors did was not an act, but an omission!) A physician’s omission to continue treatment where such treatment has proven ineffective, regardless of the physician’s knowledge that the patient would die, is not a failure to perform a legal duty and therefore the physician cannot be held liable for murder.

Acts v. Omissions

Common Law
Model Penal Code
o    Acts cause harm; ie. Being harmed is being made worse, placed below the welfare baseline
o    Omissions withhold benefits; ie. Withholding of benefits makes no worse, stays at baseline
o    Causing harm or withholding benefits depends upon where the baseline is set
o    Acts are movements only
o    Omissions are failures to engage in specific acts
o    Only liable for acts that cause result
o    Maybe be liable for omissions that permit results

Social Harm

·         Definition: the destruction of, injury to, or endangerment of, some socially valuable interest
·         “endangerment to a socially valuable interest” implies that even if no physical or mental injury occurs but a socially valuable interest—human life—was endangered  there is a social harm.
·         Breading down the Social Harm:
o   Result Elements: Some crimes prohibit a specific result
§  Ex. Social harm of murder is the death of another human being, i.e. a harmful result
o   Conduct Elements: Some crimes prohibit specific conduct, whether or not tangible harm results
§  Ex. A statute prohibiting driving under the influence prohibits a certain type of driving and not a result of that driving
o   Attendant Circumstance Element: A result or conduct typically is not an offense unless certain attendant circumstances exist. This is a fact that exists at the time of the actor’s conduct or at the time of a particular result, this is required to be proved in the defn. of the offense.
§  Ex. In murder there is an attendant circumstance that the result of death must be of “another human being” not a cat or dog, the fact that exists and must be proven, is that the victim is a human being

Mens Rea

General Principles:
·         Two meanings of the word:
o   (1) Broad culpable meaning: if actor committed the actus reus with a vicious will, evil mind, morally blameworthy, or culpable state of mind,
o   (2) Narrow elemental meaning: actor commits the actus reus of the offense with the particular mental state set out expressly in the definition of that offense. Using this meaning a D is not guilty of an offense, even if she has a culpable frame of mind, if she lacks the mental state specified in the definition of the crime.
·         Exà D has nonconsensual sex with V, a woman not his wife, he genuinely but negligently believed she consented. Assume that rape is defined in statute X as “sexual intercourse by a male, with a female not his wife, with knowledge that she did not consent.” Under the narrow meaning, D lacks the requisite knowledge that female did not consent, under the broad meaning, however, he committed the actus reus of rape in a morally culpable manner whether or not he had the knowledge.