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Criminal Law
Wayne State University Law School
Findlater, Janet

I. Setting the Stage
A. Proof of Guilt at Trial
1. Proof Beyond a Reasonable Doubt
· Required by due process clause
· Cannot be quantified (McCullough v. State of Nev.)
· Burden is on the state to prevent the state from becoming too powerful.
2. Enforcing the Presumption of Innocence
· Owens v. State (1992) (p. 13)
o Facts: ∆ found asleep in car in driveway following call regarding suspicious vehicle. Open beer can between legs, two empties in car. Alcohol restriction on license.
o Can driving under the influence be proved beyond a reasonable doubt?
o There must be some factor to enhance the likelihood of the first instance (drunk while driving, arrived in driveway) and diminish the likelihood of the second (got drunk in driveway, no driving).
o A conviction upon circumstantial evidence alone is not to be sustained unless the circumstances are inconsistent with any reasonable hypothesis of innocence.
o Holding: “suspicious vehicle” probably means driving, so it is more likely that he was driving while intoxicated. Guilty.
· Essential elements of a crime:
o Actus reus- voluntary act
o Mens rea- mental state
o Circumstances
o Causation
o Result (social harm)
· Criminal Procedure Overview:
1. Possible Crime. Reported and police respond or police observe crime being committed.
2. ∆ will be arraigned (magistrate)- informed of charges, assigned counsel, enter a plea, informed of rights, given bail, preliminary hearing.
3. If probable cause, case goes to Circuit court for a trial.
4. Information/Indictment- charging document.

II. Modern Role of Criminal Statutes
A. The Principle of Legality
1. Requirement of Previously Defined Conduct
· Commonwealth v. Mochan (1955) (p.88)
o Facts: M called Z and said degrading things, tried to engage in sodomy. She was married, anyone else could have picked up phone and listened.
o Problem: what crime to charge? Charged with a crime to injury public morality.
o Due process clause limits judiciary’s ability to create new law, apply it retroactively.
o Crime is defined through CL (i.e. Smith v. Commonwealth- solicitation of adultery is not a crime). Most states have abolished CL crimes (Mich. has not).
§ MCL 750.505 Saving statute: CL crimes that were indictable at CL are still considered crimes.
§ MCL 750.317 2d degree murder is “all other types of M.” Look at CL.
· A. Keeler v. Superior Court (1970) (p.91)
o Facts: Man beats up estranged wife, kills the fetus.
o Is a fetus a “human being” for the purpose of the murder charge?
o Calif. Murder statute: 1. Kill another human being. 2. With malice aforethought.
§ CL: a human is born alive (not a fetus).
Conception ————–Quickening————–Viability———Born Alive
| no crime | great misprision | Murder |
o Legislative intent to interpret statute: did not intent to include fetus.
o Reasoning:
§ Separation of powers- leave it to the legislature to amend statutes.
§ Due process- fair notice of the crime. ∆ needs to know conduct is “murder.”
2. Values of Statutory Clarity
· In re Banks (1978) (p.101)
o ∆ charged with Peeping Tom statute (secretly peeping into a room occupied by a female person). Is it unconstitutional because it is too broad?
o “secretly” has been defined by CL. Only a reasonable degree of certainty is necessary.
o Boyce Motor Lines v. United states, a statute must:
§ Give notice of the required (or prohibited) conduct and
§ Guide the judge in application and lawyer in defense of crime.
o Policy issue with overbroad statutes:
§ Police have unfettered discretion to apply statutes.
§ Due process- notice must be given.
· MCL 750.411h Mich. Stalking Code
o Opposite of vague. List of unconsented contact.

III. Actus Reus


MPC 2.01 p. 980
1. Voluntary act or omission
(2) Not including: reflex or convulsion, unconscious movement, hypnosis, not a product of the effort of actor.

Elements of Actus reus:

1. Conduct (voluntary act or omission)
2. Harmful result
3. Attendant circumstances
à Anything that is not mens rea is actus reus.
A. Voluntary Act
· Martin v. State (1944) (p. 127)
o Facts: Officers arrested ∆ at his home, took him onto highway where he was using profanity in a drunken manner. Charge: being drunk on publ. highway.
o ∆ did not voluntarily commit the crime because the police officers carried him to the highway.
o Voluntary and Act are not the same thing- two separate requirements for Actus reus.
· State v. Utter (1971) (p. 129)
o Facts: Son entered ∆’s apartment, said “dad, don’t.” Son had been stabbed, collapsed and died. ∆ admitted that he had been drinking for a few hours.
o When a state of unconsciousness is voluntarily induced through the use and consumption of alcohol or drugs, then that state of unconsciousness does not attain the statute of a complete defense. (intoxication is a question of fact for jury)
o ∆ claims it was a “conditioned response”- act or pattern of activity occurring so rapidly, so uniformly as to be automatic in response to a certain stimulus.
o Actus reus: an act must be a willed movement or the omission of a possible and legally-required performance.
B. Omissions
· Failure to act is only criminally culpable when there is legal duty to act (i.e. withholding information is not illegal, but concealment is).
· When there is a duty to act: contract, relationship (doctor/patient, landlord/tenant, parent/child), if duty is voluntarily assumed or statute (

eral: mens rea that relates to actus reus
o Specific: any other mental element
o Ex. Aggravated Battery: Intent or knowledge to cause bodily harm with I or K to cause GBH.
M.R. A.R. Add. element
2. Model Penal Code Approach (MPC 2.02)
· Purpose
Knowledge à Subjective Negligence à Objective
Recklessness (what is in actor’s head) (what reasonable person would think)

MPC 2.02(2)(b) Knowingly
(1) Aware that conduct is that in the nature of the offense or that circum. exist and
(2) Aware that result is practically certain to be caused by his conduct.

MPC 2.02(2)(d) Negligently
1. Should be aware that material element exists or will exist from his conduct.
2. Failure to perceive risk is a gross deviation from standard of care of a reasonable person.

MPC 2.02(2)(c) Recklessly
1. Consciously disregards
2. A substantial and unjustifiable risk that material element exists
3. Involving a gross deviation from the reasonable standard of care.

MPC 2.02(2)(a) Purposely
(1) element involves nature of conduct or as a result, it is conscious object to engage in conduct to cause result. and
(2) attendant circumstances he is aware of or believes or hopes that they exist

3. Problems in Statutory Interpretation


MPC 2.02 p. 981
(3) If no M.R. specified à P,K, or R.
(not strict liability)
(4) Scienter applies to all material elements of an offense, unless expressly stated otherwise.

United States v. Morris(1991) (p. 167)

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