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

Criminal Law – Ashdown Spring 2015

I. Basics

A. Functions of Criminal Sanctions

Retribution

Deterrence

Incapacitation

Rehabilitation

B. Actus Reus

1. Voluntary Act

Hinkle (unconscious at the wheel) unconsciousness was a pure defense because it negated the element of voluntary act à burden of proof remains on the prosecution

– Voluntary Intoxication does not count as unconsciousness defense

– Person drugged involuntarily cannot assert not guilty by reason of insanity, but could assert an unconsciousness defense

2. Act of Possession

Fox (marijuana greenhouse case): one brother found to have possession because he had drugs and paraphernalia in his room

Constructive Possession exists “where the contraband is subject to the defendant’s dominion and control” (State v. Carlson, 635 P.2d 72, 74) (

– Knowledge and ability to possess does not constitute possession when there is no evidence of intent to make use of that knowledge and ability.)

– Ownership and occupancy of the house are not sufficient

– Possible factors to weigh in a drug case:

o incriminating statements by the accused,

o incriminating behavior by the accused,

o presence of drugs in a specific area over which the accused had control, and

o presence of drug paraphernalia among the accused personal effects.

3. Inaction

State v. Miranda: live-in boyfriend who called himself step-father (duty == relationship) found guilty of assault where he should have known the wife was abusing the child and did not do anything (inaction)

– Where there is a duty to protect and care for children and injury results, the failure to protect the child from harm will be “deemed to be the cause of those injuries” and the person bearing the duty may face criminal sanctions (State v. Peters, 780 P.2d 602).

Commonwealth v. Konz (preacher who needed insulin) (in the context of a marital relationship there is no duty to act unless the spouse is helpless or incapacitated)

Duty to Act

Statutory Duty to Act (Duty to file income tax, failure to do so is misdemeanor)

Relationship (Parent, guardian)

Contractual Duty (Caretaker, nursing home)

Voluntary Assumption of Duty (Choose to assume care for someone (offering to watch a kid for a day))

Cause Danger (If you cause the danger, you have a duty to act (pushing someone into a swimming pool))

C. Mens Rea

1. Specific and General Intent

General Intent: only requires that a defendant know in a general way the type of conduct which he or she is engaged in even if the actual result is not intended or anticipated (knowingly or recklessly in MPC)

Rocker – general intent case

Facts: nude sunbathing

Rule: intent required was the intent to indecently expose oneself; general intent was proven because they were close to a well-beaten path; specific intent to expose oneself to a specific person was not required

Specific Intent: a particular state of mind necessary to satisfy an element of an offense (purposely under MPC) – required for attempt crimes like attempted murder

Trinkle: Shot at bar door and injured person on other side

Rule: attempted murder required the specific intent (purposely) of shooting someone; all that was proven was that he recklessly shot at a door

2. Model Penal Code on Mens Rea

§ 2.02. General Requirements of Culpability.

(1) Minimum Requirements of Culpability. Except as provided in Section 2.05, a person is not guilty of an offense unless he acted purposely, knowingly, recklessly or negligently, as the law may require, with respect to each material element of the offense.

(2) Kinds of Culpability Defined.

(a) Purposely. A person acts purposely with respect to a material element of an offense when:

(i) if the element involves the nature of his conduct or a result thereof, it is his conscious object to engage in conduct of that nature or to cause such a result; and

(ii) if the element involves the attendant circumstances, he is aware of the existence of such circumstances or he believes or hopes that they exist.

(b) Knowingly. A person acts knowingly with respect to a material element of an offense when:

(i) if the element involves the nature of his conduct or the attendant circumstances, he is aware that his conduct is of that nature or that such circumstances exist; and

(ii) if the element involves a result of his conduct, he is aware that it is practically certain that his conduct will cause such a result.

(c) Recklessly. A person acts recklessly with respect to a material element of an offense when he consciously disregards a substantial and unjustifiable risk that the material element exists or will result from his conduct. The risk must be of such a nature and degree that, considering the nature and purpose of the actor’s conduct and the circumstances 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.

(d) Negligently. A person acts negligently with respect to a material element of an offense when he should be aware of a substantial and unjustifiable risk that the material element exists or will result from his conduct. The risk must be of such a nature and degree that the actor’s failure to perceive it, considering the nature and purpose of his conduct and the circumstances known to him, involves a gross deviation from the standard of care that a reasonable person would observe in the actor’s situation.

(3) Culpability Required Unless Otherwise Provided. When the culpability sufficient to establish a material element of an offense is not prescribed by law, such element is established if a person acts purposely, knowingly or recklessly with respect thereto.

(4) Prescribed Culpability Requirement Applies to All Material Elements. When the law defining an offense prescribes the kind of culpability that is sufficient for the commission of an offense, without distinguishing among the material elements thereof, such provision shall apply to all the material elements of the offense, unless a contrary purpose plainly appears.

(5) Substitutes for Negligence, Recklessnes

t a reasonable person would observe in the actor’s situation.

Recklessly (From MPC). A person acts recklessly with respect to a material element of an offense when he consciously disregards a substantial and unjustifiable risk that the material element exists or will result from his conduct. The risk must be of such a nature and degree that, considering the nature and purpose of the actor’s conduct and the circumstances 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.

5. Strict Liability / Lack of Criminal Intent as Defense

Mala Prohibita: Strict Liability Crimes à crimes prohibited by government; no mental state is required

Olshefski – Penn. Vehicle code violation (improperly weighed truck)

Ex Parte Marley – employer held liable for the actions of employee

Rule: Factors that indicate that an intent requirement should be imputed on a statute:

First, when the crime is created to single out an individual for punishment or correction, criminal intent should be required, but not necessarily when a crime is defined for the purpose of regulating (think traffic violation) (Character of Offense) (mala in se or mala prohibita)

Second, when the penalty is high (possible prison sentence) an element of criminal intent should be required. (Note that these are thoughts for a test, but not actual case law) (Severity of Penalty)

Guminga: employer should only be liable for civil penalties for the act of an employee he did not commit, did not have knowledge of, or give expressed or implied consent to the commission thereof

Morissette: scrap metal dealer

Rules:

mere omission from statute of any mention of intent will not be construed as eliminating intent from the crimes therein because there are no grounds for finding that Congress intended to eliminate intent from the crimes

presuming intent in the jury instructions in incorrect because the jury should determine whether the person had intent

6. Mistake and Ignorance

Mistake of Fact or Law: eliminates the mental state element of the crime

– may either mitigate or completely defend against the crime

– doesn’t work against strict liability of the crime

– examples

o statutory rape – mistake only a defense if there was reasonable effort taken to discover the age (in some states)

o traffic offenses

o alcohol to minors (strict liability)