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

Criminal Law- Dillof- Winter 2017 Outline

Modern Criminal Law
US criminal law
Some jurs have statutes adopting, referencing, incorporating, reflecting, the law of crimes developed at common law
“common-law jur”
Some jurs have statutes based in sig part on MPC
=”MPC jurs”
52 criminal jurisdictions. 50 states, DC and federal. 
Each is either MPC or common law. 
1215 Beginning of anglo-american system. 
Beginning prisons = start of industrial age. 
No jurisdictions have adopted the MPC jot for jot. No purely common law jurisdictions

Common law (CL)
Model Penal Code (MPC)
Judicially developed
Received in US
Transferred to statute
Supplemented legislatively
Inconsistent, incomplete and redundant
Origins of the crim law
Common law*
Judge made law originally
Criminal statutes
Shift to legislative bodies for lawmaking
Modern role of the common law
Reception statutes
Every act that’s an offense in common law where there's no punishment under state penal code can be prosecuted under common law
Not common because most common law crimes superseded by state statute
Minority of states recognize common law offense expressly
Prosecutions are rare→ only available where the legislature has not acted.
Can judges still make new crimes? –>Its been done but generally not common
A few states believe that a reception statutes allow them to ABOLISH outdated crimes

Statutory interpretation
States have codified the common law felonies and most common law misdemeanors–these offenses usually defined in common law terms
When statute contains common law term, presumption is that this term retains its common law meaning, absent a statutory def to contrary
Common law used to fill gaps in MPC. If legislature is silent, they’ve acquiesed to the CL definition
This is not where the cts are changing the law—in all CL jurs there are statutes and the cts must respect those statutes

Michigan Penal Code
1st degree Murder Sec 750.316
“Murder which is perpetuated by means of poison, (etc.) is a 1st degree felony”
2nd degree murder, sec. 750.317
“All other types of murder are a second degree felony.”
Is MI a MPC or Common Law jur?
Common law jur*
Know this because of the example above of MI's statute of murder
Completed 1962
Adopted in varying degrees in 3/4th of states
Integrated, complicated, compromised
Contained gen principals of criminal responsibility, defs of specific offenses and sentencing provisions
Sentencing provision reformation almost completed; also going to revise sexual offense provisions
Influences adoption of revised penal codes in 34 states; many ct opinions cite it
System of offenses– offenses designed to work together as complimentary group
Substantial step forward in criminal law, an integrated system of laws
Not like a restatement that tried to reflect the laws it actually exits; also NOT like the UCC
it is somewhere btwn the UCC and a restatement
It paints w/ a fresh palate
Meant to be inspirational and try to get diff jurs to adopt it
MPC or CL?
Before 1962?
Reliance of early sources?= probably common law
Actus reus or mens reus==common law
Actus reus and mens rea does not appear in MPC**
Does not use these terms— uses other, contemporary, still confusing terms
Archaic?= CL
Statutes resembles MPC provisions? –look at MPC
Just because there is a statue does not indicate whether it is common law or MPC

Goals of Criminal Law
Prevent criminal acts: utilitarianism [punishment justiifed to the extent that it increases social welfare] Utilitarians seek to maximize the net social benefit; for them, the “right” action is the one that results in the greatest net “social good” after subtracting the harm from the benefit.
Deterence: punish to “set an example” for others (general deterrence) or to keep the offender from re-offending (specific deterrence).
Incapacitation: criminals confined in prison cannot harm society any more
Risk assessment
Reformation: Punishments designed to “reform” criminals into law-abiding citizens.
When utilitarianism doesnt work:   When the actor is not rational calculator or risk or doesn’t have the necessary information.
Punish according to blameworthiness: retributivism [punishment justified to the extent that it is deserved] Positive retributivism
A person’s blameworthiness, w/o more, provides a positive reason to punish
Punish in proportion to blameworthiness/punish as much as deserved.
Negative retributivism
A person blameworthiness limits the severity of punishment that should be imposed
A person should be punished no more than an amt determined by blameworthiness/ punish NO MORE than is deserved
Based on premise that humans possess free will→ looks backwards instead of forward thinking utilitarianism
Hart’s Mixed Theory: combines elements of utilitarianism and retributivism.
Punish to the extent which maximizes social utility, but
Never punish more than deserved. 

General Principles
Structure and elements of an offense
-Actus Reus
“Guilty Act”
Physical or external part of the crime
Most commonly includes both the conduct and the harmful result**
Murder is a “result crime”; some offenses however are defined in terms of conduct, such as driving while intoxicated; but, the term “harm” can be defined broadly enough so lawyers can say every crime –including conduct crimes– involves harm to others
Conduct (sometimes you don’t need result: drunk driving; speeding)
Conduct + Result
AR elements: “speeding,” “causing serious injury,” “causing serious injury when speeding”
Actus= act; reus=the accused, perpetra

n, endangering, destruction of an individual, group or state interest which is deemed socially valuable”
Under this definition social harm occurs when driving drunk or soliciting a murder because of the endangerment of an interest
Social harm = very essence of all crime. 
Whether social harm is an essential element to all crimes:
Utilitarianist dont see any reason why there needs to be a social harm component. Conduct shows a propensity to commit future har
Retributivists require social harm. Only then is there a debt to society. (can make a strong case that conduct offenses do cause social harm because of impending danger).

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.
Prosecution has the burden of proving every element of the offense, including whether or not there was an ACT
Prosecution has to prove that there was a voluntary act every single time.
Important: if Voluntariness considered like a defense, then the burden is on D to show that shit was involuntary.
Voluntariness is a principle
Under MPC it is a rule.

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

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

CL basic voluntariness req *****USE ON EXAM*******
In gen, a person is only liable
For a result offense:
If a voluntary act (accompanied by the relevant Mens rea) caused (actual & prox) the prohibited result
For a conduct offense:
If a voluntary act (accompanied by the relevant Mens rea) constituted or caused (actual & prox) the prohibited conduct

Homicide (CL, roughly): Causing the death of another person w/ malice aforethought
Theft (CL, roughly): Taking the property of another person w/o consent w/ intent to permanently deprive

Justification for Voluntary component
Utilitarian view: Can not deter involuntary acts. 
Weak argument. You can get people to alter their behavior before hand (seizure patient to take medication).
Retributivist view: Blameworthiness presupposes free will, Cannot punish if did not choose to put thoughts into action