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Criminal Law
Wayne State University Law School
Broughton, J. Richard

Criminal Law Outline – Broughton – Fall 2008

1. Malum In Se – Something that is bad in and of itself (homicide, rape, etc). Almost always receive more severe punishment
2. Malum Prohibitum – things that are not necessarily bad in themselves but bad b/c we make them crimes/say they are bad in order to prevent other harmful actions or protect other interests

DEFINITION OF CRIME (generally speaking) – an act that causes social harm
® Can be produced by an act that is either malum in se or malum prohibitum
® Crime is an act against the whole community[Something that distinguishes a crime from a personal harm is the impact on the community] · When a crime is committed, it is a community that condemns the act – the prosecutor is the community’s representative
· Criminal wrongdoer subject to public punishment
· Upon conviction forced by govt. to give up their life, liberty, property as sign of moral blameworthiness of the moral act
· Unlike private wrongs (torts/breach of contract), crimes involve moral condemnation by community that is so severe it is carried out in the name of the political community and entails some degree of suffering/pain.

What is the Criminal Law?
® (Descriptive function) – Scope of definition – What does it include/exclude?
® (Normative function) – What should the criminal law be? – What is harmful? Deserves moral condemnation?

6th Amendment to the U.S. Constitution provides that “in all criminal prosecutions, the accused shall enjoy the right to a speedy and public trial, by an impartial jury.”

The examination of prospective jurors (venirepersons) is called a “voir dire”
Preemptory challenges are not based on cause.

The Due Process Clause of the U.S. Constitution requires the prosecutor to persuade the fact finder “beyond a reasonable doubt of every fact necessary to constitute the crime charged.”


Criminal law founded on common law (judicial decisions) roots in England
® Categorized crimes as Felonies and Misdemeanors
Legislative enactment of statutes [Model Penal Code] ® Most jurisdictions still follow Common law but also impose statutory regulations of crime which ALWAYS supersede common law

Limitations of Criminal Law
® Bill of Rights – Provides individual rights under Constitution (protections)

® Where does Congress get authority to enact the criminal law?
o Most federal criminal law is justified under authority of the Commerce Clause
o Most important of Congresses enumerated powers to enact substantive criminal laws
o Article 1, section 8 – Congress has power to regulate commerce b/w states, among foreign nations and Indian tribes
o Most domestic federal crimes are supported, at least in theory by commerce clause

3 Regulations [Commerce Clause] 1. Congress can regulate the channels of interstate commerce
2. Congress can regulate the instrumentalities of interstate commerce
3. Congress can regulate activities that have a substantial effect on interstate commerce

In addition, Article 1, Sections 9 & 10 – prohibit Bills of attainder and ex post facto laws – these limits apply both to Congress and state legislatures
® Bill of attainder – legislative act that inflicts punishment without a judicial trial
o A lot of laws try to inflict punishment beyond what we would normally consider – bills of attainders try to reach beyond that
® Ex post facto laws – Enacted after a crime has been committed – or attempts to punish someone through the retroactive application of a statute
o Purpose is to make sure that people have fair warning that their conduct can be punished as a crime – fair notice of the effect of a statute
o Also helps to protect individuals from vindictive legislation (legs. Trying to get somebody for something they did in the past – but wasn’t a crime at that time)

Leading case from 1798 Calder v. Bull
Unconstitutional ex post facto law if meets 4 criteria:
1. Criminalizes an act that was innocent at the time it was committed
2. Aggravates a crime or makes a crime greater than what it was at the time it was committed
3. If it changes the available punishment by inflicting greater punishment than was available at the time it was committed
4. If it alters the rules of evidence or permits the reception of less testimony for conviction as compared to what was required at the time it was committed

By its terms, Ex post facto law, only applies to legislative acts but the Due Process Clause would prohibit judges from doing anything that the legislature would be prohibited from doing

Due Process Clause (2) in the U.S. Constitution – No person should be denied life, liberty or property without due process of law
5th Amendment – Federal govt. action
14th Amendment – State govt. action
One of these limits that the Constitution places on govt. power both to define and enforce the criminal law. Many provisions of the bill of rights are procedural – do not necessarily apply to substantive criminal law, but the due process clause CAN apply to either procedures or substance in criminal law

Per Legum Terre clause of Magna Carta – “By the law of the land”
No govt. action against an individual was valid unless it was taken pursuant to the laws of the land
Due Process Clause has 2 components
Substantive due process: Protects un-enumerated individual rights that are deemed so fundamental to our scheme of ordered liberty that no amount of process is sufficient to take them away (Exp: Right to have an abortion – Roe v. Wade, Griswald v. Connecticut – struck down laws that prohibited use of contraceptives)
Procedural due process: Concerned with procedures that the govt. employs to deprive a person of life, liberty or property – ensures that people have adequate notice, fair warning, that their conduct is punishable – and provides them with opportunity to be heard (essential ingredients – to have notice and be heard)

Due process helps to safeguard the presumption of innocence. Corollary of due process that in all criminal prosecutions the govt. must prove EACH AND EVERY element of the crime beyond a reasonable doubt. Highest burden of proof known to the law. [Criminal Law demands a higher burden – stakes are higher than in civil law]

What is an element? – Ingredients of a crime
· Crimes each have elements that have to be proven by the government.
· Why make it so difficult to convict someone?
o To guarantee the presumption of innocence that protects the people
o States does NOT have power to incarcerate som

are very different theories. There is a distinction between the factors that rationalize each type.
We can apply one theory with regard to criminal responsibility and another in regard to punishment.

3rd Amendment – Crimes of treason
5th Amend – Protects against double jeopardy, due process of law
8th Amend – Protects against excessive fines, cruel and unusual punishment (state and fed. Govt.)

What is Cruel & Unusual Punishment?
· Supreme Court case Trop v. Dullez
o Prohibits punishments that are inconsistent with the “evolving standards of decency that mark the progress of a maturing society.”
o Prohibits punishments that are EXCESSIVE
· Excessive if it makes no measurable contribution to acceptable goals of punishment such as deterrence, retribution, incapacitation, etc.
· If it makes no measurable contribution than it is the needless infliction of pain and suffering.
· Excessive if it is grossly disproportionate to the severity of the offense

Constitution imposes a number of limits on punishment. Many 8th Amendment rules that apply only to the death penalty – Concept that “DEATH IS DIFFERENT”
® Based on the idea that special rules/protections are needed for govt. to follow re: capital punishment
1. Death penalty may not be imposed upon someone that does not kill, intend to kill, or attempt to kill
o Requirement satisfied if major participation in felony and demonstrates reckless indifference to human life
2. Certain applications of death penalty are prohibited where there is a demonstrated National consensus against that application of the death penalty
o Death penalty cannot be imposed upon someone:
§ Who is mentally retarded (Atkins v. Virginia)
§ Who is younger than 18 years old when committed crime. (Roeper v. Simmonds)
§ Who commits a rape (Coker, Kennedy v. Louisiana)
§ For any non-homicide crime against a person. (Kennedy v. Louisiana) – case just recently decided new precedent
3. 8th Amendment requires that a capital sentencing scheme employ aggravating factors (those factors that make the crime worse)
o Govt. has to provide adequate vehicle for jury to give effect to mitigating evidence


Substantive Law that defines CRIME
Elements – Ingredients of Crime
– Things that have to be proven in order for a person to be held criminally responsible.
– If you don’t have these elements, you DO NOT have a conviction.

General Parts of Criminal Law (no specific offense – those elements that apply to all crimes)
Generally crime has two components: physical and mental component