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

Criminal Law Outline – Ashdown – Fall 2009

What are we trying to do with the criminal justice process?
1.      Retribution, revenge, atonement, punishment
2.      Deterrence: Probability of being caught * Gravity of getting caught > Benefit, then you have deterrence
3.      Incapacitation – Prevent them from committing another offense
4.      Rehabilitation

Chapter 2 – Essential Concepts of Criminality
A.    The Prohibited Conduct – “Actus Reus”
a.      Voluntary Act
i.      State v. Hinkle – Δ (Not under influence of alcohol/drugs) wrecked his car injuring and killing victims (involuntary vehicular manslaughter). Dr.’s found brain condition that causes black-outs. Δ’s family testified he complained of symptoms before. 
1.      Difference between insanity and unconsciousness:
a.       Insanity is a disease of defect/chronic
b.      Unconsciousness is acute – epilepsy/heart-attack
2.      Burden of Proof:
a.       Insanity – Burden on Δ – Must prove mental state was caused by insanity (Risks institutionalization)
b.      Unconsciousness – Burden on State – Must disprove unconsciousness by proving an ACTUS REUS (voluntary act – must be conscious to be voluntary) – (Acquittal)
3.      Policy:
a.        Keep defenses separate – CANNOT KNOW ABOUT CONDITION (Unconsciousness) BEFORE ACCIDENT
ii.      Defense of unconsciousness CANNOT BE USED IF “BLACK OUT” FROM ALCOHOL OR DRUGS – Intoxication

b.      The Act of Possession
i.      State v. Fox – Two brothers owned house that harvested weed. Cops searched house found weed, paraphernalia. Tried and convicted of possession with intent to distribute.
1.      People must not only know that they possess the marijuana (knowledge), but must also have dominion and control over the substance (constructive possession)
2.      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)

c.       Inaction
i.      State v. Miranda – Δ lived with girlfriend and her 2 children. Infant was found to be substantially abused. Charged with assault due to inaction.
1.      “Criminal liability of parents based on a failure to act in accordance with common law affirmative duties to protect and care for their children is well recognized in many jurisdictions”
a.       People v. Stanciel (Mother guilty of homicide by allowing known abuser to assume role of disciplinarian over child)
b.      Smith v. State (Mother held criminally responsible for failing to prevent fatal beating of child by lover)
c.       State v. Walden (Mother guilty of assault for failure to prevent beating)
d.      State v. Williquette (Mother guilty of child abuse for allowing child to be with known child abuser who subsequently beat child)
2.      The failure to protect the child from harm will be deemed to be cause of injuries and the person (parent) bearing the duty will be criminally liable
3.      When you assume common law responsibility to the child as a pseudo-parent – DUTY BOUND
4.      Dissent – Legislature tried to pass this bill and failed – Circumventing the legislative process
ii.      Policy: Why impose liability?
1.      Children are dependent on their parents for care

B.     Mental State – “Mens Rea”
a.      Specific and General Intent
i.      State v. Trinkle – Specific Intent – Drunk gets gun and shoots at bar from outside injuring someone inside– Charged with attempted murder
1.      Must have mental state of intent to be guilty of attempt
2.      Thacker v. Commonwealth – Tent case – No attempted murder because of lack of specific intent
3.      People v. Viser – “An attempt to commit a specific offense” = Attempt
ii.      State v. Rocker – Sunbathing nudists – To be illegal must be nude + intent to indecently expose oneself – Beach was public enough so jury could infer they were intended to be seen by others
b.      MPC Approach
i.      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
ii.      Kinds of Culpability
1.      PURPOSEFULLY – Conscious objective to do act and get desired result
2.      KNOWINGLY – Practically certain act will result in desired result
3.      RECKLESSLY – Consciously disregards a substantial and unjustifiable risk
4.      NEGLIGENTLY – Should be aware of substantial and unjustifiable risk
iii.      Culpability required unless otherwise prescribed
1.      If culpability not prescribed by law…purposefully, knowingly, recklessly
iv.      Prescribed Required Applies to all material elements
1.      Applies to all the material elements of offense unless contrary purpose plainly appears
v.      Substitutes for negligence, recklessness, knowledge
1.      If negligence prescribed – Recklessness, knowledge, purpose will suffice, CAN MOVE UP BUT CAN’T MOVE DOWN
a.       EX. If element requires knowledge, only knowledge and purpose will suffice
vi.      Requirement of purpose satisfied if purpose is conditional
1.      Conditional purpose can satisfy purposeful requirement unless it negates harm or evil
vii.      Requirement of knowledge by knowledge of high probability
1.      Established if a person is aware of a high probability of its existence – unless they actually believe it doesn’t

ediency of enforcement
f.       Look to the expected number of prosecutions
g.      Look at the need to encourage the public to act more carefully
iv.      Commonwealth v. Olshefski – Truck weight case
1.      2 Types of Crimes:
a.       Common law crimes (malum in se) – “bad in themselves”
i.      Mental element
ii.      Physical element
b.      Crimes by statute (malum prohibita)
2.      Commission of the crime in violation of the statute
3.      No mental element necessary when legislature has the power to punish an act as a crime
4.      No mental state written into the statute …strict liability… no mental state is need to violate
5.      Strict liability is used to regulate behavior, not for moral purposes
6.      Courts feel strict liability must balance against person liberty of defendant and public benefit
v.      Ex Parte Marley – Meat market weighing case
1.      Vicarious liability – owner liable for actions of employees
2.      Public Policy – statutes with no mental state are imposed to make business owners more careful
3.      Public policy of ensuring quality service to the public more important than the burden placed on employer

f.       Mistake and Ignorance
i.      Mistake of fact – Is generally an excuse in court – Morrissette – I didn’t know it was property, if I did I wouldn’t have taken it
ii.      Mistake of law – Never a defense unless it eliminates the required mental element – “I didn’t know it was illegal”
iii.      People v. Hernandez – Strict Liability – Statutory Rape case where man had sex with woman not knowing her age. SHE WAS ACTUALLY 17 ¾ and statutory rape is strict liability regarding female’s age. Δ claimed he had a GOOD FAITH REASONABLE belief that she was over 18. No matter how reasonable a Δ’s belief of age is, strict liability prevents mistake of fact rule. BUT:
1.      Unless the Legislature specifically holds statutory rape as a strict liability crime, the court will infer a mental state into the statute