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



When analyzing any homicide situation, the following questions must be asked and answered?
a.                   Did D have any of the states of mind sufficient to constitute malice aforethought?
b.                  If the answer to a. is yes, is there proof of anything that will, under any applicable statute, raise the homicide to first-degree murder?
c.                   If the answer to a. is yes, is there evidence to reduce the killing to voluntary manslaughter, i.e. adequate provocation?
d.                  If the answer to a. is no, is there a sufficient basis for holding the crime to be involuntary manslaughter, i.e. criminal negligence or misdemeanor manslaughter?
e.                   If there adequate causation between D’s acts and the victim’s death? Did the victim die within a year and a day? Was D’s act the factual cause of death? Is there anything to break the chain of proximate causation between D’s act and the victim’s death?

I.          Proof Beyond a Reasonable Doubt

A.        Enforcing the Presumption of Innocence
Owens v. State (pg. 14)
Mr. Owens was charged with operating a motor vehicle on a public highway while intoxicated. Have to prove: (1) That he operating a motor vehicle; (2) On a public highway; and (3) While intoxicated. To satisfy (2), public highway? It is proof that requires the fact finder to infer what happened. Based on the circumstantial evidence there is enough to tip the scales.
Rule: A conviction based on circumstantial evidence alone, may be sustained if the circumstances are inconsistent with any reasonable hypothesis of innocence.

B.         Jury Nullification
State v. Ragland (pg. 19)
It sends a mixed message and should not be advertised and limited. It is the power to act against the law…transform the jury…into the only element of the system that is permissibly arbitrary. 
Rule: The power of jury nullification is not a precious attribute of a right to trial by jury.

II.         What is a Crime?

A.                 Introduction
Legislature, Prosecutor – member of executive branch and applies the law, Courts, Jury – makes final decision.
Is there a crime?
1.      Is there a statute prohibiting (or requiring) the conduct? (Legislature)
2.      What are the elements of that offense? (Legislature and Court)
3.      Is there sufficient evidence to prove the offense? (Prosecutor and Jury)
4.      What is the punishment for that crime? (Legislature and Court)

B.                 Constitutional Principles
Harmelin v. Michigan (pg. 70)
Issue: Is the punishment cruel and unusual under the 8th Amendment? Did the legislature exceed its power? The legislature – mandatory life sentence for possession of 650 grams or more of any mixture containing controlled substance. 
§         Scalia/Rehnquist: “the Eighth Amendment contains no proportionality guarantee.” (71)
§         Kennedy/O’Connor/Souter: “[The Eighth Amendment] forbids only extreme sentences that are ‘grossly disproportionate’ to the crime.” (74)
§         White/Blackmun/Stevens/Marshall: apply Solem 3 – factor test of proportionality. Proportionality Test – (1) the inherent gravity of the offense, (2) the sentence imposed for similarly grave offenses in the same jurisdiction, and (3) sentences imposed for the same crime in other jurisdictions. 
What is the rule from Harmelin? #2 – but it doesn’t give you any definite answer. 
Rule: Imposition of a mandatory sentence of life in prison without possibility of parole, for a conviction of possessing more than 650 grams of cocaine, is not “cruel and unusual” punishment.

C.                 The Requirement of Previously Defined Conduct
Principle of Legality (nulla poena sine lege) condemns judicial crime creation, the constitutional doctrine of void-for-vagueness forbids wholesale legislative delegation of lawmaking authority to the courts and the rule of strict construction directs that judicial resolution of residual uncertain in the meaning of penal statutes be biased in favor of the accused.

Commonweath v. Mochan (pg. 78)
The trial court convicted D for a common law misdemeanor not codified as a statutory offense for telephoning Mrs. Zivkovich several times per week and making lewd and obscene comments to her. Issue: Are the actions of D punishable under Section 1101 of the Pennsylvania Penal Code? Did his actions openly outrage decency? Defense – it is not the courts decision to decide if this is a crime – it is the legislature’s job. If the crime is not defined – if you don’t know what the elements of the crime are – you don’t know how to defend it. This is a crime because the judges can say that it is criminal conduct. This is defined after D engages in the conduct. If courts can recognize common law offenses then in a bad situation.
Rule: When the conduct alleged is not prohibited expressly by criminal statute, a violation of the legality principle does not exist if a statutory provision permits punishment of common law offenses.

Keeler v. Superior Court (pg. 81)
D allegedly murdered an unborn but viable fetus by kicking his pregnant wife in the stomach. Crime of murder – willful infliction of traumatic injury upon his wife – assault by means of force likely to produce great bodily injury.
Elements of murder are unlawful killing of a human being with malice aforethought. 
Issue: Is a fetus a human being? The baby could have lived if it were born on that day. What did the legislature in 1850 decide was a human being? The legislature got this information from old English common law – only a fetus that is born alive. Look to the intent of the legislature and the common law. 
Ex Post Facto – law has been defined by this Court as one “that makes an action done before the passing of the law, and which was innocent when done, criminal; and punishes such action,’ or ‘that aggravates a crime, or makes it greater than it was, when committed.’
Rule: There is a violation of the Due Process Clause when a court construes a criminal statute contrary to legislative intent and applies its expanded definition of the statute retroactively to a person’s conduct. 

III.       Elements of the Offense and Statutory Interpretation

A.        The Values of Statutory Clarity
In Re Banks (pg. 90)
Arrested for violating peeping tom statute. What did D do?  
Any person who shall: (1) Peep, (2) Secretly, (3) Into any room, (4) Occupied by a female
Trial court found that the statute was unconstitutional. What is unconstitutionality? The law was vague – the wording. Statute cannot mean what it says, since, if taken literally, it would prohibit much conduct, which the legislature clearly did not intend to include. Too much ground cover – lacks notice. What generally would fall within the statute? Statues have to be drawn narrowly enough to identify the wrong conduct. 
How do you turn this statute into a constitutional statute? Define peep – from other cases. State v. Bivins – to look cautiously or slyly – as if through a crevice – out from chinks and knotholes. Define secretly – definite idea of spying upon another with the intention of invading her privacy. This language is added to the statute. In Keeler – asking too much – to rewrite the law. Court is trying to narrow the words – so that the words have some content. The crime is now clearer.
Rule: Prior judicial interpretation of the terms of a statute challenged for unconstitutional vagueness can vitiate the challenge. A criminal statute is not unconstitutionally vague if prior court opinions have construed the statute. 

Papachristou v. City of Jacksonville (pg. 96)
This vagrancy ordinance covers too many people. The law is too vague – you have to start at ground zero. D and seven others were convicted of violating a Jacksonville, Florida vagrancy ordinance.
Rule: Laws that fail to give ordinary people notice that their conduct is illegal and that encourage arbitrary arrests are unconstitutionally vague.

B.         Statutory Interpretation
United States v. Foster (pg. 101)
D, a drug trafficker, was convicted of carrying a firearm in relation to a drug trafficking crime. Back of the pickup is a gun with the drugs. Charged with 924(c)(1) – (1) whoever, (2), during and in relation to, (3) a crime of violence or drug trafficking, (4) uses or carries, (5) a firearm
Use is given a narrow definition. Carries – has 2 definitions. D wants the narrow definition. Statutory interpretation – prosecution wants the broad definition. Majority says look at other parts of the statute – Congress punished possession of the weapon – transported it – but doesn’t carry have to mean something different than possess or transport. We don’t need to define it – you will know it when you see it. This case is showing you how there can be 2 approaches. The narrow technical definition results in the overturn of the conviction. 
Rule: A simple English word such as carry can require statutory interpretation to ascertain legislative intent.

To determine legislative intent,

(pg. 124)
D, a physician, removed Herbert from life support at his family’s request. Unlawful killing – turned off life-support and took away hydration and nutrition. Malice Aforethought – turn off machines and IV – intend to kill him. This is an omission – not giving him additional fluids or treatment. Cessation of heroic life support measures is not an affirmative act but rather a withdrawal or omission of further treatment. A physician has no duty to continue treatment, once it has proved to be ineffective. Balancing test – proportionate treatment is that which, in the view of the patient, has at least a reasonable chance of providing benefits to the patient. 
Euthanasia is an act – this case is an omission.
Rule: Removal of life support equipment from a comatose patient who is unlikely to recover is not an affirmative act, but an act of omission, that, if in accord with the patient’s or surrogate’s wishes, does not give rise to criminal liability.

B.         Mens Rea
A guilty mind – a criminal intent – an act does not make the doer of it guilty, unless the mind is guilty, that is, unless the intent is criminal.

Regina v. Cunningham (pg. 133)
A thief stole a gas mater from the basement of a house, which caused the gas to leak into an adjoining house and partially asphyxiate an elderly woman who lived there. 
He is charged with unlawfully and maliciously administered or cause to be taken by another person any poison or other noxious thing endangering the person’s life or inflicting grievous bodily injury.
The judge used the word wicked to describe malicious. The problem with wicked – make a general judgment about someone and call them a bad person. You have to be careful about the elements – extreme recklessness. On retrial – what is the maliciousness? Proof of maliciousness – didn’t turn off the gas – reasonable person would know to turn off the gas. 
Rule: The mens rea requirement is satisfied by a showing of either intentional or reckless conduct, a showing of malice or wickedness will not suffice. 

C.         General Issues of Proving Culpability
People v. Conley (pg. 135)
Smashing a wine bottle across someone’s face – battery. Intentionally or knowingly hit the person – transferred intent – doesn’t matter who you hit you intended to hit someone. Cause great bodily harm or permanent disability/disfigurement – intentional or knowingly.
Natural and probable consequences – proof is that intent can be inferred from the surrounding circumstances – the words, the weapon used and the force of the blow. You can infer circumstantial evidence. 
“Ordinary Presumption” – a person intends the natural and probable consequences of this actions.
Rule: A person acts with intent if it is his conscious object to cause a social harm or he knows that such conduct is almost certain to occur as a result of his conduct.
Important Note: a judge may not instruct a jury that the law presumes that a person intends the ordinary consequences of his voluntary acts – because this violates the due process clause – not beyond a reasonable doubt – but the jury can infer on its own and apply its common sense in such circumstances. Sandstrom v. Montana (pg. 138)

D.        Transferred Intent
Sometimes applies when a person intends to cause a particular social harm to one person but ends up causing the same harm to another. The doctrine does not apply to a transfer of intent to cause one particular type of social harm to a different type of social harm. Does not apply to attempt.
Identity of the intended victim is immaterial. The doctrine is unnecessary. 

III.       Knowledge, Willfulness and Strict Liability