Select Page

Criminal Law
Wayne State University Law School
Morrison, Adele M.

Criminal Law


Fall 2014

Test-Taking Notes ???


Start with Actus Reus

®voluntary act (or omission) required

Mention Social Harm

®elements of the crime

®each of the AR elements

Finish with Mens Rea

®requisite MR in definition

Chapter 1 – Principles of Punishment

Criminal Law

Criminal law is determined whether the penalty is defined as “punishment” or not.

Punishment is an act done for the purposes of retribution or deterrence.

A crime is limited to conduct that incurs the moral condemnation of the community. To commit a crime is to commit an act against the community at large.

The criminal law provides additional rights on top of the rights given in civil law

The duty of the prosecutor is to seek justice, not merely convict

Sources of Criminal Law

1) Common Law – judge-made law. Carried over from British system

2) Statutes – laws enacted by the legislature (“penal codes”) that define the crime, defenses to crimes, and other relevant doctrines of criminal law

3) Model Penal Code – model code created in 1950s and completed in 1962 by the American Law Institute. It has a utilitarian basis. Portions of it have become law in many states, and in addition many states have used it to influence their laws

Theories of Punishment

Utilitarianism (Bentham)

· The general goal of utilitarianism is to maximize the welfare of society. In order to do so, utilitarians propose removing everything, as much as possible, that takes away from the welfare of society. The net welfare is measured by the social benefit minus the social cost.

· Both crime and punishment are evils because they both result in pain to individuals and society as a whole. Therefore, pain of punishment is undesirable unless its infliction is likely to prevent a greater amount of pain in the form of future crime.

· General Deterrence: A person is punished in order to send a message to others (society at large or people contemplating criminal conduct) that crime does not pay.

· Specific Deterrence: D is punished in order to deter D from future criminal activity. This is done by incapacitation: incarceration of D prevents him from committing additional crimes in the general community for duration of his sentence) and/or by intimidation: D’s punishment serves as a painful reminder so when he is released he is deterred from future criminal conduct.

· Rehabilitation: prevent future crime by reforming an individual by providing him with employment skills, psychological treatment, etc., so that he will not want or need to commit future offenses.

· Proportionality: Punishment should be proportional to the offense. It is proportional if it involves the infliction of no more pain than necessary to fulfill the law’s deterrent goal of reducing a greater amount of crime.

Retributivism (Kant)

· The general goal of retributivism is to punish criminal because punishment is deserved.

· Just Deserts: Criminal punished for illegal act, regardless of effect of punishment upon society, such as deterring future crime. Desert is matter of responsibility for harm risked or caused.

· Punishment is Intrinsically Valuable: Illegal act creates moral imbalance in society, where the criminal has obtained the benefits of the law (because others have respected his rights) but he does not accept the law’s burdens (respecting others’ rights). Punishment restores the moral balance because punishment allows the criminal to pay his debt to society in order to return to society. Punishment vindicates the victim and honors the criminal.

· Relative Rights: Criminal sent an implicit message to the victim that the criminal’s rights are more important than the victim’s. Punishment is another way of showing the criminal and the victim that this message was wrong. Punishment that is proportional to the offense brings the criminal down to his proper place in relation to others.

· Proportionality: Punishment should be proportional to the offense and harm caused, so criminal’s degree of culpability for causing harm should be considered.

Mixed Theories

Hart: Punish according to retributivist recommendations because it will maximize social benefit.

Limiting Retributivism: Punish within the range deserved but choose point in range that maximizes social utility.

Hybrid Theory: Punish to the extent that maximizes social utility but never more than deserved.

Chapter 2 – Anatomy of an Offense




-Actus Reus

· “Guilty Act”

· Physical or external part of the crime

· Two elements:

1) voluntary act or legal omission

2) Social harm (people are not punished for conduct, but for conduct that results in “social harm”)

· Conduct (sometimes you don’t need result: drunk driving; speeding)

· Conduct + Result

-Mens Rea

· “Guilty Mind”

· Mental state or internal part of crime (Ex.: with intent, with malice)

-Attendant Circumstances

· Circumstances that exist independent of what actor does.

· Ex.: age, at night, drunk…


-Culpability Requirement

-Attendant Circumstances


ACTUS REUS (“guilty act”)

Voluntary and Involuntary Acts

GENERAL RULE: a person is not ordinarily guilty of a criminal offense unless his conduct includes a voluntary act.

Why require a voluntary act?

Utilitarian – Deterrence: a person who acts involuntarily cannot be deterred. Therefore it is useless to punish the involuntary actor b/c results in pain w/o benefit of crime reduction.

Retribution– blame and punishment presuppose free will: a person does not deserve to be punished unless he chooses to put his bad thoughts into action.

Why not punish thoughts (like “Minority Report”)?

Utilitarian justification for the requirement of conduct:

· If the government punished thoughts they would be violating mental privacy and it would not be a pleasant society to live in

· Utilitarians seek to deter through punishment and thoughts are not deterrable.

Retribution reasoning for the requirement of conduct:

· Retributive theory only justifies punishment of those who freely choose to harm others. The retributivist requirement that it is morally wrong to punish people for their un-acted upon intentions.

You should be punished based on the harm that you caused. If you have done nothing, there is nothing to be punished for.



Actus Reus Includes 3 Elements of a Crime: (1) voluntary act (or omission) that (2) causes (3) social harm

VOLUNTARY ACT à a willed muscular contraction or bodily movement; controlled by actor’s mind.

State v. Utter (WA 1971) —VOLUNTARY ACT

D stabbed his son to death after drinking all day but had no recollection of his act. D argued his act was an autonomic response. Held: when the state of unconsciousness is voluntarily induced through the use of drugs or alcohol, the state of consciousness is not a complete defense.

INVOLUNTARY ACTS: Reflex actions, Seizures, Convulsions, Acts occurring while person is unconscious/asleep, Hypnotic State.

AUTOMATISM: existence in any person of behavior of which he is unaware & over which he has no conscious control (defense to a crime in some states).

POSSESSION: voluntary act if person VOLUNTARILY takes control of the object or OMITS his duty to dispossess himself of the article

Martin v. State (AL 1944) – NO VOLUNTARY ACT

D, after being arrested while intoxicated at his home, was taken by officers to a highway where he “illegally” used loud and profane language and was convicted of being drunk o

ow the baseline] (once you start aiding, can’t give up)

(5) Duty by Risk Creation: one who creates a risk of harm to another must thereafter act to prevent ensuing harm (driver hits pedestrian)

People v. Beardsley (MI 1907) – not liable for omission; no legal duty to render aid

D’s wife away for the weekend. D has a rendezvous with Blanche Burns. She ingests morphine. D tries to assist her in recovery by carrying her downstairs and telling another man to take care of her. Man became concerned with her condition and called doctor. Doctor discovered victim was dead. D convicted of manslaughter b/c had a duty to care for her. Appealed. Held: D not liable. Woman was there by her own free will without any coercion. She voluntarily went to the D’s house & voluntarily engaged in the use of intoxicants. D did not assume any care or control over her. There was no status relationship between the two. He had no legal obligation to act, only a moral one which is not punishable by law.

Barber v. Superior Court – not liable for omission; no legal duty to act

Victim on life support after surgery. Family decided to take him off life support. Afterwards, he could still breathe but showed no signs of improvement and had to be fed intravenously. D, the doctor, consulted with family and removed the IV tubes and victim died. D charged with murder. Held: NO LIABILITY FOR FAILURE TO ACT UNLESS there is a LEGAL DUTY TO ACT. Physician has no legal duty to continue treatment once it has proved to be ineffective. Doctor’s behavior is not an act under CL b/c it does not bring victim below baseline. This behavior is merely an omission that brings victim back to baseline.


MPC § 1.13(4): “omission” means a failure to act.

MPC § 2.01(3): “Liability for the commission of an offense may not be based on an omission unaccompanied by action unless:

a) the omission is expressly made sufficient by the law defining the offense; or

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

· acts are movements only

· omissions are failures to engage in specific acts

· only liable for acts that cause results

· May be liable for omissions that cause results

Barber Under MPC: where an act is defined as a willed muscular contraction or body movement this would be considered an act. Therefore, doctor would be guilty of murder.

Social Harm

SOCIAL HARM: destruction of, injury to, or endangerment of some socially valuable interest.

à A person is not guilty of an offense unless his voluntary act (or omission) causes social harm (can be non-tangible social harm).

Categories of Social Harm

1. “Result” elements or crimes – some crimes prohibit a specific result (i.e., murder®the death of a person)

2. “Conduct” elements or crimes– some crimes prohibit specific conduct, whether or not tangible harm results thereby. (i.e., drunk driving)

3. “Attendant circumstance” elements – a “result” or “conduct” is not an offense unless certain “attendant circumstances” exist. An attendant circumstance is a fact the must be in existence at time of the actor’s conduct, or at time of particular result (ex. for rape, AC are “woman not his wife” & “without consent”)