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Criminal Law
West Virginia University School of Law
Ashdown, Gerald G.

Criminal Law Outline
Fall 2014, Professor Ashdown


–          D is punished in order to convince the general public to forego criminal conduct in the future, otherwise will be punished
–          D’s conduct teaches what is/is not permissible
–          to prevent future misconduct by D, clear reminder to him of the risks of future offending (recidivism issue)

–          during physical restraint, loses capacity to commit further crimes
–          no opportunity to commit tax fraud, burglary etc, limits murder, assault

Rehabilitation (Behavioral Prevention)

–          Criminal is to be punished simply because he has committed a crime
–          it is right for the wicked to be punished
–          Revenge theory: we owe him; an eye for an eye, death penalty for murder
–          Expiate theory: he pays back; only through suffering punishment can the criminal expiate his sin


1. ACTUS REUS  – Voluntary Act

Physical element
The prohibited conduct

Voluntary Act

–          A voluntary act is a prerequisite to criminal responsibility.
–          It is an element of every criminal offense.
–          The Government must prove beyond a reasonable doubt every element of an offense.
–          Unconsciousness = no capacity
–          State must prove consciousness and capacity
–          Eliminates either mental state or voluntary capacity
o   Leads to an acquittal
–          Proof the act was voluntary negates unconsciousness
–          You can’t be punished for thoughts alone
–          Morally wrong to punish people for un-acted upon intentions

·         A person who acts involuntarily cannot be deterred so its useless to punish them
·         Causes pain to the person without the benefit of crime reduction
o   c/a: the threat of punishment might deter them from placing themselves in situtations where their involuntary conduct could cause harm to others (Decina, shouldn’t drive)
·         A person doesn’t deserve to be punished unless he makes a choice to put his bad thoughts into action
State v. Hinkle (WV, 1996)
–          man blacks out while driving car, crossed the median and kills people in crash
–          Drs found brain condition that cause black outs
–          D didn’t know about the condition until after the accident
–          Court held in favor of the D
o   Unconsciousness removed voluntary act
o   State couldn’t prove he was conscious BaRD
o   Didn’t want to use insanity defense à D would have burden of proof
–          He didn’t act reckless b/c he didn’t know about it. Blameless unless he had prior knowledge.
–          MPC lists involuntary as reflexes, convulsions, conduct during unconsciousness, sleep, or due to hypnosis

POLICY: judge concerned with keeping insanity and unconsciousness separate, not to put it under the mental state.

People v. Decina
–          Driving with a known history of epilepsy satisfies the actus reus à reckless

Act of Possession

·         Crimes of possession are incomplete crimes, as their real purpose is to provide the police with a basis for arresting those whom they suspect will later commit a socially injurious act.
·         MPC (Possession): To knowingly posess, a person must have the contraband long 
enough to be able to terminate possession

State v. Fox (UT, 1985)
–        Fox brothers have huge pot factory at house where they both live
–        G. Fox was convicted of possession b/c he owned the house and cops found drug paraphernalia and pot growing book in his room
–        No incriminating evidence found in C. Fox’s room
–        Intent to distribute was proven b/c there was way too much weed for personal consumption
–        RULE:
1.      Knowledge and ability to possess does not = possession when there is no evidence of intent to make use of knowledge and ability
2.      Constructive Possession: dominion/control of the contraband and power and intent to exercise that control. Based on the nexus between the D and the drugs.
3.      Possession requires only knowledge of the presence of the object and not its contraband character (don’t know it’s illegal, but know it’s there)


–          Generally there is no legal duty to act UNLESS there is a legal duty
–          MPC: Omission – The defendant must be physically able to help. Omission are punishable if a statute requires calls them so, or if the duty to act is imposed by law
–          Legal duty exists when:
1.      Special relationship (mother, father, spouse, etc)
2.      Statutorily required (to stop at a car accident you were involved in, file taxes)
3.      Voluntary Assumption of Care  (live in b/f assumes parental role)
4.      Contractual duty (nanny, caregiver)

·         Too difficult to p

State v. Rocker (HI, 1970)
–          D charged for nude sunbathing on an isolated beach in HI
–          To be illegal must be NUDE + Intend to indecently expose oneself
–          Beach was public enough so a jury could infer they intended to be seen by others (satisfies general intent)
–          Under MPC, the mental state for this type of conduct would be knowingly, recklessly or negligently

MPC: Mental States– A person is not guilty of an offense unless he acted purposefully, knowingly, recklessly, or negligently, as the law may require with respect to each material element of the offense. Not based on intent, but level of culpability (no general/specific intent)


Min. Requirements of Culpability – Except as provided in section a person is not guilty of an offense unless he acted PURPOSEFULLY, KNOWLINGLY, RECKLESSLY, or NEGLIGENTLY as the law may require with respect to each element of the offense

1.         Types of culpability

a.          PURPOSEFULLY – conscious objective to do act and get desired result
i.      He hopes for attendant circumstances
ii.      Can be synonymous with “intentionally”

b.         KNOWINGLY – practically certain act will result in desired result, even if he does not specifically intent his conduct to bring about the result
i.      He is aware of the attendant circumstances
ii.      MPC considers “willfully” sufficient to be knowingly

c.          RECKLESSLY – consciously disregards a substantial and unjustifiable risk
i.      MPC considers the surrounding circumstances to determine if the risk was substantial or unjustifiable (therefore subjective) and if the actor was aware of the risk