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

The Basis for Appeal: The ∆ convicted of a crime must demonstrate a legal error in the trial/pre-trial procedure based on
1.      Insufficient Evidence: gov’t fails to present sufficient evidence of ∆’s guilt. View facts in light most favorable to verdict on appeal.
2.      Improper Jury Instruction: court gives improper definition of crime/interpretation of statute
3.      Evidentiary Challenge: When evidence is improperly admitted or the court excluded evidence relevant to the case.
4.      Constitutional Challenge: when the statute, charges, jury instruction, or pretrial or trial procedure deprived ∆ of a constitutional right

1.      Must prove elements of the crime beyond a reasonable doubt.
The Act (actus reus)
The Mental State (mens rea)
Attendant Circumstances.

2.      Types of Proof
Direct Proof (∆’s own words)
Circumstantial Proof (i.e. ∆ had a load of cash w/ serial numbers that match those that were at the bank).
Inferences/Common Sense (what is it that ordinary people are allowed to assume when they see a chain of events?) 

3.      Goal of Criminal Law
“The law holds that it is better to let ten guilty persons escape than that one innocent suffer.” –Lord Blackstone
Burden of Production–gov’t must come up w/ the evidence to prove that they committed the crime.
Burden of Persuasion–gov’t must persuade trier of fact that ∆ committed crime beyond reasonable doubt.
In re Winship: “The reasonable-doubt standard plays a vital role in the American scheme of criminal procedure. It is a prime instrument for reducing the risk of convictions resting on factual error.” [199] We don’t want innocent people going to jail!

4.      Beyond a Reasonable Doubt: “Strictly speaking, the burden of proof, as those words are understood in criminal law, is never upon the accused to establish his innocence, or to disprove the fact necessary to establish the crime for which he is indicted.”
a.       United States v. Jackson [199] Challenge to the sufficiency of the evidence
i.        Test: “[W]hether a ‘rational trier of fact could have found the essential elements of the crime beyond areasonable doubt.’ ” Jackson v. VA [200] a)      Can’t prove Aaron Jackson is Aaron Jackson.

5.      Circumstantial Evidence
a. People v. Solomonson (Operating Vehicle Under the Influence, passed out drunk on highway)
“The prosecution need not disprove all theories consistent with defendant’s innocence; it need only introduce sufficientevidence to convince a reasonable jury of its theory of guiltdespite the contradictory theory or evidence a defendant mayoffer.”A conviction based on circumstantial evidence alone, may be sustained if the circumstances are inconsistent with any reasonable hypothesis of innocence.”
Interpreting criminal statutes
1.      Sources of Criminal Law
a.       Common Law: felonies under the common law were punishable by death. Had general statutes, and judges interpreted the law and set forth different categories of law. i.e. murder, rape, larceny/robbery, Mayhem = unable to serve in kings army, and arsen). No wiggle room in felony sentencing
b.      Statutes: (Starting point!) all federal crimes are based on statute, and many states have eliminated the authority of state courts to create common law crimes (although Michigan has not). In criminal law, the courts determine the law by interpreting the scope of the statute. What are the choices and how has the court chosen to interpret the law.
c.       Model Penal Code: Adopted by the American Law Institute in 1962, and followed in whole or part by many states.

2.      Interpreting Criminal Statutes
Plain Meaning: includes dictionary; first step to interpreting statutes
Legislative intent: If you can figure this out! Courts use a number of techniques to interpret a criminal statute, including but not limited to, looking at the purposes appearing from the statute taken as a whole, a statute’s words and history, the common law, and the circumstances surrounding the statute’s adoption.
Common Law Analogues
Canons of Statutory Construction: a way for judges to rationalize their decisions; a crutch for judges. When in doubt, use the Latin phrase
i.      Rule of Lenity: courts apply a statute narrowly if there is some confusion and thereby benefit the criminal ∆.
ii.      Ejusdem Generis: limits general language of a statute to specific terms. List of specifics and a catch all, the catch all isn’t really a catch all
iii.      Expressio Uniusto express or include one thing implies the exclusion of the other, or of the alternative.
Extraterritorial Application of Domestic Laws See Small v. U.S.  [65] Felon in possession of a weapon, convicted in Japan and then found in U.S. with a weapon. Rule: “unlawful for any person… who has been convicted in any court, of a crime punishable by imprisonment for a term exceeding one year… to… possess… any firearm” but what does “any” mean? Scotus says that “any” isn’t really any… only applies domestically, any in the U.S. even though the statute doesn’t say this. Legally Mr. Small’s is not a felon in possession.

3.      Examples
Theft Offenses: Asportation
i.      California: “the felonious taking of motor vehicle in the possession of another, from his or her person or immediate presence, or from the person or immediate presence of a passenger of the motor vehicle, against his or her will and with the intent to either permanently or temporarily deprive the person in possession of the motor vehicle of his or her possession, accomplished by means of force or fear.”(Cal. § 215(a)).
ii.      “Iowa: “a person commits theft when” he or she “[t]akes possession or control of the property of another, or property in the possession of another, with the intent to deprive the other thereof.” (Iowa § 714.1(1)).
a.       People v. Lopez (Cal. 2003) [55] Victim carjacked, he returned for his backpack, etc. Based on interpretation of Cali carjacking statute, “felonious taking” element of crime of carjacking requires movement of the motor vehicle, and ∆’s act of forcibly removing victim from his vandid not satisfy asportation requirement. Carrying a car away shows visible evidence. Proves intent to steal it!
b.       State v. Donaldson (Iowa 2003) [60] ∆ engaged electrical systems and so forth. The court had abandoned the common law asportation requirement for carjacking in favor of the statutory “possession and control” requirement of MPC. This case extends criminal liability.
i.      State v. Porello [68] (Challenge to stalking statute)
a.       Test for Vagueness: Does the statute (1) not provide a “person of ordinary intelligence a reasonable opportunity to understand what conduct it prohibits” or (2) authorize or encourage “arbitrary or discriminatory enforcement” (69). This is an objective test. Court is not persuaded that the stalking statute was unconstitutionally vague.
b.      Prior Precedents:
i.       Morales v. Chicago: loitering statute that punishes remaining in one place “with no apparent purpose” is unconstitutionally vague (U.S. Supreme Court)
ii.      State v. Norris-Romine: concluding that term “no legitimate purpose” rendered stalking statute unconstitutionally vague where State conceded that statute did not inform person of ordinary intelligence what conduct was prohibited
Common Law
Model Penal Code
Mens Rea – Intent
Actus Reus – Bad Action
Attendant Circumstances – Condition that must be present in conjunction with the prohibited conduct or result in order to constitute a crime.
Crimes of Result – Killing
Crimes of Conduct – Speeding (no result to have a crime)
§1.13(9)(10) – Element

n from the norm
See State v. Larson [122]—College kid driving w/two college friend drunk. Gross deviation from standard of care, and he should’ve known better=Negligent homicide. A person acts negligently with respect to the death of a human being or to a circumstance when an act is done with a disregard of the risk that death of a human being will occur or that the circumstance. Negligently does not need a conscious state of mind.

·         Intent to commit the act or extreme recklessness in engaging in conduct that constitutes the offense/causes the harm.

§2.02 – elemental approach
It is an offense for a person to
·         P/K/R/N engage in specified conduct (C)
·         P/K/R/N causing the specified result (R)
·         Where there is P/K/R/N with respect to the specified attendant circumstances. 

If culpability is listed, it applies to all material elements until you get to another level of culpability listed.

Specific Intents MPC §2.02: (willful)
·         A person acts purposely if it is his conscious object to engage in conduct of that nature or to cause such a result.
·         Person acts purposely with respect to the attendant circumstances if he is aware of the existence of such circumstances or believes or hopes that they exist.
See Vermont v. Trombley ∆ knocked out guy’s teeth. ∆ argues that jury charge was improper, since it instructed jury to consider whether ∆ acted “purposely” or “knowingly” when he was charged only w/ “purposely” inflicting serious bodily harm. It was an erroneous instruction, since MPC makes distinction, but, it was harmless error, cuz he acted w/ purpose; he’s screwed!

·         A result is knowingly caused if the actor is aware that it is practically certain that his conduct will cause such a result.
·         Person acts knowingly with respect to the attendant circumstances if he is aware that his conduct is of the nature or that such attendant circumstances exist.

MPC §2.02(2):
·         If ∆ consciously disregards a substantial and unjustified risk that material element exists or will result from his conduct.
·         A risk is substantial and unjustified if considering the nature and purpose of the actor’s conduct and the circumstance known to him, its disregard involves a gross deviation from the standard of conduct that a law abiding person would observe in the actor’s situation. 

·         A person’s conduct is negligent if the actor should be aware of a substantial and unjustified risk that the material element exists or will result from his conduct.
If statute is silent on culpability read purpose, knowledge, or recklessness in to it (§2.02(3))
·         Higher mental state will satisfy any lower mental state on the hierarchy (P is highest, N is lowest) (§2.02(5))
·         Distributive – if term appears once in statute it attaches to all elements of the crime unless contrary purpose plainly appears (§2.02(4))
·         ∆ will satisfy knowledge with respect to fact F when (§2.02(7)):
He is aware of a high probability of the existence of F, unless he actually believes that it does not exist.