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Criminal Law
Wayne State University Law School
Henning, Peter J.

Henning: Crim Law Fall 2010


Proof Beyond A Reasonable Doubt – Direct/Circumstantial/Inferences/Common Sense

In re Winship – reasonable doubt standard is meant to lessen the risk of false conviction.

Burden of proof is on the prosecutor, not defense

§ Govt must prove each element beyond reasonable doubt (not just overall)

§ Preponderance of evidence

Theories of Punishment –

§ Deterrence, Rehabilitation, Isolation, Education, Retribution (not compensation)

Queen v. Dudley & Stephens [1]

Necessity defense is not an excuse for murder.

This is only important because this is the 1st murder case.

Developed the theory of moral condemnation – What you did was wrong!

Sentencing – Preponderance of the Evidence

State v. Jensen [8] [Women injected man and watched her die.]

§ Rule: The primary consideration in sentencing is the good order and protection of society.

§ Following is guideline for sentencing (state will take these into consideration):

§ Nature of the Offense

§ Character of the Offender

o Jury nullification – jury can nullify the law when they take into account human emotion – can be pushed by a lawyer

§ Protection of Public Interest

Source of the Criminal Law:

§ Common Law: Felonies under the common law were punishable by death (murder, rape, larceny, mayhem, arson) – may be used to fill gaps in penal codes

§ Statutes: All federal crimes are based on statute, and many states have eliminated the authority of state courts to create common law crimes (not Michigan)

§ Model Penal Code: Followed in whole or part by many States

STATUTORY INTERPRETATION: Defense wants to interpret narrowly, and prosecution wants to interpret broadly

§ Plain Meaning (Dictionary)

§ Legislative Intent

§ Common Law Analogues

o when a statute includes a common law term, the assumption is that the definition retains its common law meaning absent a statutory definition to the contrary

o May also be used to fill in gaps in penal statutes

§ Canons of Statutory Construction

1. Rule of Lenity –when 2 plausible and applicable meanings are ascribed, court must choose the more “pro-D” one

i. not recognized by MPC (instead requires that statute be interpreted for fairness and general purpose)

2. Ejusdem Generis – a ‘catch-all’ after a list of specifics is only as broad as the list itself. “guns, sword, and other dangerous objects – only weapons like those in the list

3. Expressio Unius (excluding anything that falls outside the statute – the expression of one thing is the exclusion of another)

4. Extraterritorial Application of Domestic Laws (small) – SC: “any” court =domestic courts

Ex. Asportation in Theft Offenses

§ Cal §215(a): The felonious taking of a motor vehicle in possession of another, from his or her person or immediate presence… against his or her will and with intent to either permanently or temporarily deprive the person in possession of his or her possession, accomplished by fear.

§ Iowa § 714.1(1): A person commits theft when he or she takes possession or control of the property of another or property in the possession of another, with the intent to deprive the other thereof.

§ In CA, the carjacking statute defines an assault crime but based on the text of a robbery statute that included asportation, so carjacking is interpreted to also require asportation (because same language). People v. Lopez [55]

§ IO is based on MPC, therefore asportation element does not apply, and the only required element is ‘possession and control’. State v. Donaldson [60] [had steering column disengaged and ready to be hotwired] Possession or control begins and a theft is completed when the actor secures dominion over the object or uses it in a manner beyond his authority. Iowa § 714.1(1)

§ When legislation has been judicially construed and a subsequent statute on a similar subject uses identical or substantially similar language, the usual presumption is that the legislature intended the same construction, unless a contrary intent clearly appears.


Defense tool, to challenge the meaning (say it is unconstitutional, e.g. – violation of due process, double jeopardy)

Statutes give words independent meaning (ex. if there are synonyms, they can’t be interpreted to mean the same thing)

Objective standard

Vagueness is defines as whether the statute:

(1) not provide a “person of ordinary intelligence a reasonable opportunity to understand what conduct it prohibits”

(2) authorize or encourage “arbitrary or discriminatory enforcement”

Columbus v. Kim: [dog barked, very vague statute]

– Must prove beyond reasonable doubt that statute was so unclear that could not reasonably understand it was prohibited

Defining Reasonable Doubt

State v. Rimmer

– Reasonable doubt does not mean doubt that may arise from possibility

– Shifts burden to defense (shouldn’t be used)

Richardson v. United States (1999)

– “Series of violations of federal drug laws”

– If statute creates single element, “series”, jury must only agree def. committed 3 of underlying crimes

– If each “violation” a separate element, must agree unanimously about which three committed.


Actus reus, mens rea, causation, attendant circumstances (a condition that must be present at the time of the defendant’s action that contributes to the determination that the act is deemed a crime.)

ACTUS REUS – the criminal act: (1) voluntary act and (2) effect/harm

Voluntary Act/Conduct

An act is not voluntary if it is a bodily movement that otherwise is not a product of the effort or determination of the actor (such as reflex or convulsion, or bodily movement during unconsciousness)

Possession and omission are actus reus’ (but not status)

Attendant circumstance can be voluntary or involuntary

Martin v. State [81] – shows lack of volition. D was drunk, Police took him from his house to the highway, where he was drunk and loud. Convicted of being drunk on a public highway.

Any person while drunk (attendant circumstance)

who appears in a public place (actus reus)

where 1 or more are present (att circ)

Boisterous/indecent conduct or loud/profane discourse (actus reus)

Holding, He was not there voluntarily; he was forcibly taken, so he cannot be convicted.

Cox v. Director of Revenue (2003) [Def. found with alcohol in lap and engine running]

– Had probable cause to believe was operating vehicle

– Def. guilty, caused vehicle to function

Omission as Actus Reus– only an element when there is a duty to act

4 situations where failure to act is a legal breach

1. statutory duty of care – the duty neglected must be a legal duty, and not a mere moral obligation (People v. Beardsley)

2. status relationship

3. contractual duty to care for another

4. voluntary assumption of care of another (thereby secluding the helpless person) – no intent required for the assumption; not always an affirmative act

West v. Commonwealth, [87] mentally retarded sister dies as a result of neglect. Brother has assumed the duty (by implication), so he is legally liable for acts and omissions.

-chargeable with manslaughter

Possession as actus reus – inchoate offense

State v. Winsor – [92]D says he wasn’t guilty of “possession on the premises” because he wasn’t voluntarily on the premise. Possession of any controlled substance as the termed defined by law. The attendant circumstance doesn’t have to be voluntary (the voluntary component is for the actus reus) – crime is the possession in jail and he was.

State v. Watson -[95] D had crack cocaine in the room nearby him. To be convicted of possession, but have to have control/dominion of the drugs, or of the room in which they are contained. Holding, prosecution did not establish dominion, just proximity, so D is not guilty.

Agency – if principle hires another person (the agent) to commit a crime for him, the principle is guilty of the crime (as if you did the voluntary act, or the actus reus, yourself)

Status or condition –[def. stopped with discoloration on arm] not a crime (not illegal to be an addict, or to have a disease), so it is unconstitutional to charge a person with violating a statute without catching them in the commission of the crime (can’t infer crimes) Robinson v. California [99] – drug-addict


Issue of statutory interpretation – steps are to (1) identify the appropriate statute, (2) identify intent level by finding the appropriate terms


1. Specific: The conscious purpose to commit an illegal act and/or knowledge that conduct will cause a particular harm. (possess, transport) – higher intent – more difficult to prove – subjective

2. General: a blameworthy state of mind in which the person intends to engage in the Actus Reus of the offense: “a mental element not specific in nature, and the only issue is whether the defendant intended to do the proscribed act.

3. Malice: intent to commit the act or extreme recklessness in engaging in conduct that constitutes the offense which causes the harm.

MPC §2.02

Specific Intents – willful

§ Purposely: Conscious object is to engage in conduct of that nature or to cause such a result

§ Knowingly: Practically certain that his conduct will cause such a result.

General Intents

§ Recklessly: consciously disregards a substantial and unjustifiable risk that the material element exists or will result from his conduct. Gross Deviation from the standard of conduct of a normal law abiding person (objective)

§ Negligently: should be aware of a substantial and unjustifiable risk that the material element exists or will result form his conduct. Involves a gross deviation from the standard that a reasonable person would observe in the actor’s situation (objective)

Carter v. U.S. [petitioner asserted that he was wrongfully denied a jury instruction on the lesser included offense because didn’t rob with “force, violence, and intimidation”.]

– Robbery only requires general intent

Vermont v. Trombley [112] PURPOSELY Statute says purposely or knowingly, but prosecution only charged with purposely. Holding, it was a harmless error because the statute stated either intent. Further, purposely is harder to convict, so if they are supposed to be looking for knowingly, knowingly is contained within purposely.

– CHARGE GOVERNS – only the charges actually brought can be considered by the jury. In a very strong case, prosecution may intentionally only charge the higher intent level in order to get the highest punishment possible and not leave the choice of a lesser conviction to the jury.

– Intent levels within the statute apply to all material elements of the crime that follow (under MPC and common law).

United States v. Youts[115] KNOWINGLY Train case – The term willful is used to establish knowing conduct. Willful = specific intent. Shows the natural and probable results as established through willful conduct. The natural and probable result of sending the train back with no driver is that it would derail.


– Subjective component – conscious disregard of a sub/unjust risk

o Prove with circumstantial evidence (speed, presence of alcohol, dead body – there must have been a disr

on the defendant

2. The defendant knew of this duty; and

3. The defendant voluntarily and intentionally violated that duty

ii. Knowledge and belief are questions for the jury, and if we characterize a belief as unreasonable we have turned the issue into a legal one and prevent the jury from considering it. Forbidding the jury to consider evidence that might negate willfulness would violate the defendant’s 6th amendment right to a jury trial. The more unreasonable belief, obviously the jury will be less likely to believe it.

iii. The ignorance of the law is no excuse, but if you genuinely believe that the law does not impose a duty upon you, this negates the mens rea of the crime.

Ratzlaf v. United States – had to prove def. knew structuring (finance) unlawful

Mistake of Fact

o Rule: A person is not guilty of a crime if he commits an act or omits to act under a honest and reasonable belief in the existence of certain facts and circumstances which, if true, should make such act or omission lawful

o Mistake is a defense if it negates the mental state required to establish any element of the offense

o Not available if the actor would be guilty of another offense if the circumstances had been as he supposed, he can only be punished for whichever of those 2 were lower (different from common law, which maintains that D is guilty of higher offense in this circumstance) pg. 175 dressler

Stagner v. Wyoming [154] D was convicted of receiving and concealing a stolen car, and testified that she didn’t know it was stolen, seeking a mistake of fact instruction. Holding, AC held that D was entitled to a mistake of fact instruction because she provided sufficient evidence to bring doubt to prosecution’s claim that she knew the car was stolen. Mistake that she didn’t know it was stolen, would have negated the requisite intent.

· Common Law

o Against specific intent crimes – any mistake that negates intent of the crime is sufficient for a not-guilty verdict

o Mistake of Law

o Mistake of Fact

2. Types of Mistakes:

a. Specific Intent – Any mistake that negates an intent element.

b. General Intent – Good Faith – Reasonable

c. Strict Liability – No Mistake (Expect MPC Mistake of Law 2.04(3))

Proof and Elements – Circumstantial Evidence and Reasonable Doubt

Jury Nullification:

Jury has the right to return a verdict of not guilty despite the law and the evidence where a strict application of the law would result in injustice and violate the moral conscience of the community.

Double Jeopardy: a verdict of not guilty by a jury cannot be appealed or retried.

Burden of Proof

People v. Solmonson (207)

i. D was drunk, alone, keys in ignition, engine warm, car was off, arrested for D.D.

ii. Prosecution need not defeat every possible explanation, only show evidence that is sufficient to convince a reasonable juror in the face of whatever contradictory evidence the defendant may provide.

iii. Circumstantial evidence, and no direct evidence, can lead to a verdict of guilty.

Defining Reasonable Doubt:

Burton v. Bock

i. 2 Different theories from each person and no proof either way – reasonable doubt. Reasonable Doubt – substantial doubt arising from the evidence. A doubt that is reasonable.

ii. Can’t define reasonable for the jury – decision was vacated. If you define reasonable doubt, you’re wrong, and you’re violating a due process.

Types of Facts:


i. Who did what to whom, when, and why.


i. Mental state determination. Harder to show.

ii. The normative content of mental state inquiries is stronger still whenever the mens rea requirement is negligence.

iii. Can use raw facts to prove normative facts.


Common Law Murder pg. 273

General Definition of Common Law Homicide: An unlawful killing (that is, unjustified or inexcusable) of a human being.

General Definition of Murder at Common Law: An unlawful killing done with “malice aforethought,”

General Definition of Manslaughter at Common Law: An unlawful killing that is not done with “malice aforethought.”

First Degree Murder:

§ Willful, deliberate, and premeditated.

§ Felony murder, when the felony is enumerated

§ killing by poison, and lying in wait (must show WD, but the action itself shows premeditation)

§ lesser included offense would be 2nd degree

2nd Degree Murder: