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

Criminal Law Outline

I. Theories of Punishment
A. Justice system inflicts pain on persons convicted of criminal conduct    (must be justified)
B. Constitution/state laws provide greater protection for persons subject to          punishment rather than mere civil penalties
C. What is punishment?
1. Scholars conclude: when agent of gov. intentionally inflicts pain on D or causes D to suffer consequence considered unpleasant
2. Penalties imposed outside crim. Justice system not punishment“
disbarment by a licensing authority
D. Illusory line between “punishment” and “civil remedies”
1. State “sex. pred “ law authorizes civil proceedings based on prior                                conviction to confine indefinitely since “dangerous to comm.”
Is this punishment? U.S. Sup. ct. says if proceeding “civil” than                                           remedy is not punishment
Statutory construction-if legislature places law in civil code rather                                        than penal code-will be treated as such
Exception: if remedy so punitive in nature ct can rule as                                                       “criminal” in nature and treat as punishment
E. Test to determine “punishment”
1. Retribution and Deterrence
Utilitarianism(formulated by Bentham)
A. Consequentialist theory-actions are morally right when result in desirable consequences
Actions as means to an end
B. Purpose of all laws is to maximize net happiness of society
C. Crime and punishment undesirable and unpleasant
Punishment justifiable only if is expected to result in a reduction in the pain of crime would otherwise occur
5 units pain on D justified if will prevent more than 5 units pain (in form of crime) that would’ve occurred
Cost/benefit analysis-act has costs (fin. cost to society) and benefits (crime prevention)
2. Humans act rationally and according to immediate desires
D thinking of crim. activity (to augment happiness) will balance proposed conduct with:
likelihood of successful commission of crime
risk of detection and conviction
severity of likely punishment
If punishment outweighs benefit of crime, D will not commit

2 types of Utilitarianism
General deterrence-D punished to convince comm. to forego crim. conduct in future
Individual (specific) deterrence-D punished to prevent future misconduct by D    
Ind. deterrence occurs 2 ways
Incapacitation (segregation from society-imprisonment)
Intimidation-Remind D what in store if return to crime
Rehabilitation-non-classical variety of Utilitarianism
Rehabilitation-Best way to reduce future crime is to reform the ind.
therapy for drugs, psychiatric care, academic or voc. training
Concept of redemption evident in Judeo-Christian values
When transformation occurs, hard to find continued justification for punishment
D. Criticisms
Deterrence theory uses persons solely as means to an end-ignores dignity/rights of D
Response: D benefits from own punishment
Utilitarians can justify punishment of innocent D’s
Ex: sheriff arrests innocent black man to placate mob of angry whites
Doubt criminals can be reformed-if family, school, religion fail, how will prison/any other treatment help?
Rehabilitation removes from punishment the concept of desert
Rehab would justify cures (lobotomy) that violate D’s personhood
Response: long-term cost savings
Retributivism-underlying premise-free will 
A. Just Deserts (what one deserves/eye for an eye)-Punishment justified because is deserved response to wrongdoing
B. Uncompromising retributivist: D is punished whether or not reduce future crime
C. Looks backward on crime-punishment based on voluntary commission of crime
D. Based on premise of free will
D may be justly blame only when choose to violate society’s laws

2 Forms of Retributivism
Assaultive retribution/public vengeance/societal retaliation
morally right to hate criminals-D harms society, society harms D                             back
Victim of crime feels righteous anger towards D/D punished to                                           respect V dignity
Gratifies passion for revenge otherwise satisfied through private vengeance (essentially deters private revenge, disguised form of Utilitarianism)
2. Protective Retributivism/Principle of Personhood
Punishment as means of securing moral balance of society
Rules followed there is equilibrium/everyone benefited & burdened
D obtains benefits of law (people respect his rights) but doesn’t accept the burdens
Punishment equal to debt owed (crime committed)
Punishment=society’s respect for D/D responsible moral agent (D                                     right to be punished)
D pays debt and is free of moral guilt/stigma

3rd form of Retributivism (Minority view)
Victim Vindication-Punishment “rights a wrong”
By committing crime, D sends message to V his rights/desires more                     valuable than V
(defeat of the wrongdoer) D makes false moral claim-punishment                           reaffirms V’s worth
E. Criticisms
Does not promote future deterrence/purposely causes more pain
Glorifies anger/legitimitizes hatred
Is irrational since founded on anger rather than reason
Response-Anger=moral content-anger good when demonstrates value ourselves/rights of crime victims

Denunciation-Expressive Theory
A. Alternative basis for punishment
B. Punishment justified as means of expressing society’s condemnation
C. Hybrid of Util. and victim vindication/retriv. (Utilitarian in nature)
D. Informs ind that specific conduct improper and victim’s worth is valued
E. Channels comm anger away from personal vengeance

Mixed Theories of Punishment
A. Society attracted to both theories
B. Since general aim of crim law to deter unwanted behavior, util. will apply                     retributive principles when determining whether and how much to punish D
C. Retributive theory puts ceiling on punishment-only what D deserves/no more
D. Unwilling to convict innocent D even if justified on Util. grounds
E. “Negative retributivism”-guilt is necessary condition of punishment
F. However, will not punish guilty person unless do some good
G. Punishment determined by lesser of 2 theories

Queen v. Dudley and Stephens (1884)-Cannibal case
Facts: D’s out at sea, no food, kill and eat boy to save men…charged w/murder when rescued
How to punish?
Retributive-men deserve to be punished for killing boy
Utilitarianism-Boy sacrificed for the greater good  

II. Actus Reus-Physical/external component of crime
A. 2 elements
vol. act or omission to perform an act under circum. which D had lawful duty to act
social harm (result elements/conduct/attendant circumstances)
result crime=murder-death of person
conduct crime=driving under the influence
Attendant circumstances element=fact that must be in                                              existence at time of D’s conduct, without which the conduct or result is not a crime
Ex: sex by man w/woman not rape unless certain att.                                     circum exist, woman is not his wife and she did not consent
Voluntary Act-conduct/imposing burden
B. Distinction between vol. and act
Act=pulling trigger of gun, blinking eyes or moving arm (physical behavior)
Vol.=willed muscular contraction or bodily movement by D
“Willed”=bodily movement controlled by mind of actor
Ex: if A grabs B’s arm and swings it into C, B has not acted vol. or                        invol./simply propelled like leaf blown by wind
D not guilty of offense unless vol. act
Sufficient that D’s conduct included a vol. act, not necessary all aspects of D conduct vol.
People v. Decina (1956) MPC D drives car w/seizure and kills
Facts: D drives car, suffers seizure and kills pedestrian. Charged w/negligently driving vehicle causing death…Though death resulted-invol act (seizure)
Holding-D guilty since vol. got in car/turned on ignition

Involuntary act=duress, reflexive actions, spasms, epileptic seizures, movements while unconscious/asleep
Rationale-invol act cannot be deterred/useless to punish invol actor
“I raised my arm”=vol. act…”My arm came up”=invol. act
Habitual acts are vol. even though actor not aware what they’re doing
C. Hypnosis-Vol. or invol.?
Invol. since suggestion implanted into D’s mind
Vol since D “willed” finger to pull trigger
Until further understanding=vol. and deal with culpability as potential excuse
D. MPC definition of act is: bodily movement that can be performed vol. or invol.
Exceptions=reflexes/convulsions/conduct during unconscious/sleep/hypnosis/conduct not product of effort of D
Possession is act if knowingly obtained object or knew was in control of it “for suff. period of time to have been able to terminate possession

Martin v. State Common Law-Drunk brought in public by cops
Facts: D’s actions invol.=no conviction
Arrested at home
Taken onto highway
Convicted of being drunk on public highway
Statute-any person who appears drunk in public place…
Presupposes vol. act/look to past cases for vol. act (statutory construction/stare decisis)
D forcibly taken to public place by cop=invol.
Holding-Reversed (D’s act not vol, statute did not intend invol acts to be included)

State v. Utter C. Law-D kills son/claims conditioned response defense-not a vol. act
Facts:
D stabbed son
D drinking
D Vietnam vet-said reacts violently when anyone approaches from rear
D doesn’t recall killing son
Charged with Murder2
Trial ct rejects defense and D convicted
D claims unconscious-drugs/alcohol intox not excuse to constitute invol act-burden of proof
Holding-Evidence insufficient/Appeals ct affirms/Murder 2

Omission-failure to act-not providing/withdrawal of benefit
Generally not guilty of crime for failure to act EXCEPT:
Stat. duty (must provide food/shelter to kids)
K (bsitter/kid- lguard/swimmer)
Status (parent/child-spouse/spouse)
Preventing (No, I’ll save him!)
Caused harm (hit V w/car didn’t help)
Too difficult prove mens rea for offense (why does d stand by and watch X                        die?)
Ex: Kitty Genovese case-50 people stand silently while D kills X; are they responsible for not acting?
Crim law should prevent those from causing positive harm-should not coerce people to act affirmatively
People v. Beardsley (1907) C/Law-D cheats w/woman-OD’s/dies-no legal duty to act
Facts:
Spent weekend together drinking and she takes morphine
Passes out and taken to basement since wife coming home
Dies and D charged w/Manslaughter
D not the “active agent”
Holding-Dismissed: Although D owed moral duty to help, that does not translate as a legal duty, therefore cannot be convicted if he did not act to help her

Barber v. Superior Ct. C/Law-D pull plug on terminally ill patient-no murder/not act
Facts:P suffers cardiac arrest/into comma, much brain damage-chance of recovery slim. Upon family request

to prove that D knew girl was under 17. Missouri Legislature rejected MPC expansion of knowingly to include willful blindness of a fact, and instead limited willful blindness to “actual knowledge” of the fact. The state’s burden here to prove willful blindness more difficult than MPC’s “high probability” language.
Rule: A person acts knowingly with respect to attendant circumstances when he is aware that those circumstances exist
Holding: D won because state failed to prove she actually knew of child’s age 


MPC Mistake of Fact 2.04(Ignorance or Mistake of Law p.993)
(1) and (2) are mistake of Fact-if a mistake of fact negates the req mens rea, such as knowledge of an attendant circum, then no liability
Defense not available if D would be guilty of another offense had the situation been as he supposed-D thought he had pot, actually had heroin and was busted…would be convicted for possession of heroin, but actually punished for the equivalent of a pot possession charge

Common Law Mistake of Fact
failure of proof claim
general intent crime-a reasonable mistake of fact will exculpate D
an unreasonable mistake of fact is no defense
specific intent crime-a good faith mistake, reasonable or not, is a defense when it negates the req. Mens Rea

Moral Wrong Doctrine-Even if actor’s mistake is reasonable and thus no culp, his intentional commission of an immoral act serves as the req. blameworthiness to justify conviction…ex: D takes V (14 yr old) who believes to be 18 away from parents, which is in violation of a statute=liability

Legal Wrong Doctrine-Same as above but the act is illegal rather than immoral…if D’s conduct, based on the facts as he believes them, constitutes a crime, not simply an immorality, he may be convicted of the more serious offense of which he is factually guilty…ex: D has sex with X, a girl he believes is 18 but she is in fact 16 and there is a statute that prohibits sex outside of marriage, which is misdemeanor-since she is underage he may be convicted of felony stat rape

People v. Navarro/C.L
Facts: D took some beams from a construction site, he said he thought they were abandoned.
Issue: Must the belief be reasonable and in good faith for specific intent crimes? No
Rule I: D not guilty of an offense if his mistake of fact negates the spec. intent portion of the crime
Rule II: For spec intent crimes, a good faith mistake, reasonable or not, is a defense when it negates the mens rea specified 
Holding: D not guilty since he lacked the intent req in the definition of the offense



Common Law Mistake of Law
Different Law Mistake-when knowledge is an express element of a crime, sometimes a D’s lack of knowledge, or misunderstanding of another law will negate the mens rea element found in the definition of the crime
When Mistake of Law is raised as a failure of proof claim, it is always a mistake of different law (being charged with Bigamy in state A after being mistaken about divorce law in state B) unless the offense specifically provided to the contrary, for ex., by including the words, “…in violation of a known legal duty not to do so.”
Specific Intent crimes-Mistake of law defense is available if a reasonable/unreasonable mistake of law negates the req mens rea
General Intent crimes-no Mistake of Law Defense

Cheek v. United States/CL
Facts: D didn’t file taxes for long time and said income taxes were unconstitutional. D charged with willfully evading income taxes (specific intent crime) and D says he honestly believed didn’t have to pay because he learned through seminars and through speaking with some attorneys that tax laws were unconstitutional. 
Issue: Does only an objectively reasonable misunderstanding of the law negate the stat. willfulness req? No
Rule: Honest beliefs about mistake of law can be reasonable or unreasonable as long as D believes something without a guilty mind
Holding: D is guilty since he intentionally violated a known legal duty. At one point in time he paid taxes, and then he stopped: D is aware of a legal duty to pay taxes=guilty mind. 


MPC 2.04 (3) Mistake of Law p. 993
Is a valid affirmative defense when it is a reasonable mistake
An unreasonable mistake is no defense
Mistake of Law is an affirmative defense when:
The statute or enactment defining offense is not published or reasonably made available prior to co