[INTRO TO CRIMINAL LAW]
[Model Penal Code]
o Until Recently, most state criminal codes were collections of statutes that left much to be desired.
o ALI developed the MPC in 1952: greatly influenced criminal law reform
o Some states have adopted major portions of the MPC
[Criminal Law Process]
1. Crime reported to police – doesn’t end in arrest without arrest warrant with probable cause
2. Arrestee entitled to preliminary hearing within two weeks, judge determines if arrest was justified
3. If justified:
- The prosecutor can file an “information” setting out the formal charges
OR
- The accused is not brought to trial unless indicted by a grand jury, consisting of members of the community. An indictment is a document similar to an “information”
4. Following indictment, DA determines bail, depending on close fam ties, job, friends: evaluate flight risk
5. Defense attorney may make various pre-trial motions that may sometimes require the dismissal of charges
OR
Defendant pleads guilty as a result of bargaining
- By pleading guilty, charges or sentences will be reduced
- Conviction rate obtained by guilty pleas is greater than 90%
6. Sentencing
- Individual sentencing: judge’s discretion
- Mandatory sentencing: if you convict X you must be sentenced Y
Mandatory sentencing can eliminate discrimination through consistency
However MS does not allow the consideration of the circumstances
*Notice how many of these steps are not reviewable! Sole discretion on the police, DA, judge. D.A.s and prosecutors have the sole discretion in what to charge also, including seeking the death penalty. Justice system is not “fair,” but it is the “best” system. They must constantly weigh what is better for their constituents and society.
[Trial by Jury]
o 6th Amendment to Constitution: public trial by impartial jury in all cases where max potential of incarceration exceeds six months
- Trial by jury to prevent oppression by government
- 12 people need to rule unanimously to reach verdict (in some cases less than 12 people)
o Judge and attorneys exam potential jurors in “voir dire”
o Proof beyond a reasonable doubt
- Winship Court ruled in 1970 that the reasonable doubt standard is the prime instrument for reducing the risk of conviction resting on factual error
- Justice Harlan stated that it is far worse to convict an innocent man than to let a guilty man go free
Criminal Law v. Civil Law
Criminal / CivilState v. Criminal
Legality v. Morality / Individual v. Defendant
Wrongs against society / Wrongs against person
Fines/incarceration / Money damages to Plaintiff
Proof beyond a reasonable doubt / Burden of Proof
[PRINCIPLES OF PUNISHMENT]
Punishment can be: incarceration, fines, community service, shaming, death
o Incarceration is the typical form (2.3 million in America in 2007)
There are two theories of punishment that still apply today in criminal proceedings. If the punishment does not serve one of these purposes of punishment, it is deemed unconstitutional to sentence the criminal. For instance, it is unconstitutional to sentence minors or the mentally ill to the death penalty or life imprisonment.
1. Retributive theory: looking backwards – did he commit the crime and therefore deserve the punishment?
2. Utilitarian theory: looking forward – will there be a benefit to society from imposition of punishment?
[Retributivist Justification of Punishment]
o Question of retributivism: WHY should we punish defendant? Because defendant deserves it.
o Lex talionis: an eye for an eye
o Commonly associated with death penalty, even though retributivism only deals with who deserves punishment, not what type or how much
o For a retributivist, the moral culpability of an offender gives society the duty to punish
[Utilitarian Justification of Punishment]
o All punishment itself is evil; it can only be admitted if it excludes a greater evil
o Punishment should not be inflicted where:
1. There is no mischief for it to prevent
2. It cannot act to prevent the mischief
3. It is too expensive and the mischief produced is greater than mischief prevented
4. Needless: mischief can be prevented without it
o Modern usage refers broadly to theories that likely consequences will determine the morality of the action (punishment)
o Beneficial consequences of punishments according to utilitarian principles:
1. General deterrence (for public)
2. Individual deterrence (individual will not repeat crime)
More severe punishment for repeated offender is warranted under this theory, because the first penalty was obviously ineffective
3. Risk management (bad people are physically off the streets, prevented from committing crime)
o Reform (criminal will become a more useful & happy person)
[Deterrence as Justification of Punishment]
o US relies on deterrence and retribution
- Incapacitation: criminal physically can’t commit crimes while in jail
- Rehabilitation (doesn’t exist in US anymore): idea that criminal gets vocational/physical/counseling then is released back into society to add to society
o Criminal Law is the trade off between individual freedom v. public security
Case:
o In Dudley v. Stephens 1884 (p.48), Ds are indicted and convicted of murder for killing a boy while lost at sea to eat him for survival. This case raises questions of whether they should be punished under R or U theories, if they killed too soon, whether the process of picking boy (worth the least in terms of survival) were fair, and whether the relative worth of the people on the boat was relevant. Should this act never be OK? Exceptions?
[ACTUS REUS AND MENS REA]
[ACTUS REUS]
Actus Reus is the physical and external part of the crime. For result crimes, the Actus Reus is the end result; murder is a result crime and it is committed when the death occurs. For conduct crimes, the Actus Reus is defined in terms of conduct; DUI is a conduct crime and even if there is no injury, D is guilty of this offense if D engages in this conduct.
o The act needs to be voluntary
o Involuntary means actions were coerced as opposed to a conscious decision to execute the act
o Under 2.01, involuntary could mean “a reflex or convulsion,” “bodily movement during unconsciousness”
Our justice system has a requirement of an Act because we do not punish mere thoughts. The external harm, not the thoughts, is the behavior that the State finds inappropriate to society. We also cannot prove the thoughts of a man.
o Types of Acts
o Voluntary v. involuntary act
§ In Martin v. State 1944 (p.128), police takes drunk man onto a public highway and arrests him. A voluntary appearance is presupposed in interpreting the statute, so he is not found guilty.
§ We do not deter involuntary acts because no purpose of punishment is served. It does not deter a sleepwalker to refrain from killing in his sleep is he is punished for it. It is also hard to argue that he deserved the punishment when he never made a conscious decision to commit the crime.
o An attendant circumstance is part of the actus reus that must be present in order to constitute the crime, that is not necessarily criminal on its own:
§ In a DUI, “offense to drive in intoxicated condition,” the intoxicated condition is not a conduct element, but an attendant circumstance, because people are allowed to get drunk, they just can’t drive in such a condition
o Time Framing of Act
o In Martin (p.128), the Defendant will argue for a narrow time frame: At the time of arrest, he was in the public space involuntarily; Prosecutor will argue for a broad time frame: Few hours before arrest, he voluntarily drank alcohol
o In State v. Utter 1971 (p.130), war veteran acts on a “conditioned response” and stabs his son when he “sneaks up behind him” after drinking all day. Court found him guilty of murder even though his response was involuntary, because PTSD was not a known syndrome then, and being voluntarily drunk is not a complete defense.
[Omission as an Act]
Sometimes the “act” element of a crime is an omission, or the failure to act. The failure to act when you owe a legal duty is a crime. The duty may come from statute, special relationships, assumed contractual duty of care, voluntary assumption of care, or a duty that arises from precluding others from help. It is much easier to prove liability with an act because with omission, you also need to prove legal duty in addition to the act/omission that occurred.
o People v. Beardsley 1907 (p.136): Respondent not guilty of murder when he left a drunk/drugged woman in a neighbor’s apartment knowing her life was in peril, because he owed her no legal duty
o Barber v. Supreme Court 1983 (p.142): Respondent not guilty of murder when they pulled the plug on a comatose patient with family’s consent, because physician has no duty to continue treatment once it has proved to be ineffective
Finding Legal Duty
o Always consider the policy arguments and the factual arguments
o Why does the status-duty argument make sense and not make sense?
- In Beardsley (p.136), Defense argues that status comes from marriage – flaw with this is that many people choose not to get married, many people cannot legally get married
- In Genovese (p.139), woman is stabbed in parking lot and calls out to 38 people who ignore her, but if they all had a duty, could we prosecute 38 people for this?
[Mens Rea]
Mens Rea is the mental state of the criminal before and during his commission of the crime. This is the internal ingredient, or the intent that renders D culpable with a morally blameworthy state of mind. D is criminally liable when P proves the harm as well as the intent. The mental state required is an element under the terms and the language of the specific statute. In strict liability statutes, you do not need to show intent (generally disfavored). For example, with statutory rape, consent or intent does not matter and the act itself is a crime. This is a policy decided by our society that certain conducts should always be prevented regardless of intent.
o Voluntary intoxication may negate mens rea requirement or the formulation of specific intent, like D was provoked in fact
§ Alcoholics and addicts are considered voluntarily intoxicated
o Involuntary intoxication may be an affirmative defense
o The Morally blameworthy state of mind
§ In Regina v. Cunningham 1957 (p. 151), a man breaks open a gas meter to steal money, but the gas leaks and kills Mrs. Wade in the next apartment. Jury was instructed to define “maliciously” in the applicable statute to mean a morally culpable state of mind. However, just a “wicked” mind is not enough; defendant needs to have the wicked intent to cause the crime or social harm for which he is being charged, OR foresee that the result may happen (in this case, murder as a result of his petty crime). Court reversed the conviction for murder.
§ In People v. Conley 1989 (p.153), A attempts to strike B with wine bottle but hits C in the face, causing permanent numbness and mucosal mouth. The state rules that “permanent disability” from applicable statute means any part of the body that is not the same as before (regardless to function), and that the intent from A to B transfers over to C in the commitment of this crime. D was convicted.
Transferring Intent: If A tried to throw a rock at a window and hits C, the intent is not transferred; the intent was to damage property, not person. However in the above case the intent was to cause a bodily harm with a bottle, so who he hits (act) does not change intent
Proving Intent:
The Model Penal Code has four states of culpability useful in defining intent: Purposefully, Knowingly, Recklessly, and Negligently.
o When D does something purposefully, he commits an act with the conscious objective that the result occurs. This is the highest level of intent.
o When D does something knowingly, he commits an act aware that the result is practically certain to occur. This is the second highest level of intent
o In Figueroa v. United States 2009 (p.170), defendant is not found guilty of aggravated assault when he knowingly used fake numbers for his identification but did not know they were actual numbers belonging to a citizen. “Knowingly” appeared in the beginning of the statute, which grammatically qualifies all of the elements: “transfers, possess, without lawful authority, means of ID, of another person”
o When D does something recklessly, he is aware of a substantial and unjustifiable risk and acts intentionally in consciously disregarding that risk. This is the lowest level of intent for criminal liability.
o When D does something negligently, he is not aware of the dangerous condition and inadvertently creates a substantial and unjustifiable risk. D should have known of the risks. Usually, criminal liability requires something beyond negligence, such as gross negligence.
Inferring Intent: Look to the natural and probable consequences of an act deliberately done by D.
o “Torture means act… intended to inflict… prolonged mental harm caused by… intentional infliction” (p. 197)
o Logical Sequences in Argument:
1. Intended to waterboard, deliberately acted to do it
2. D had knowledge that waterboard will cause mental and physical harm almost immediately
3. Then infer that from the intent to waterboard + knowledge that waterboarding causes harm, the purpose of waterboarding is to cause pain
4. Need a strong link between the harm suffered and the act of waterboarding to make the logical argument
Willful blindness: Model Penal Code states that willful blindness is enough to constitute “knowledge”
o In United States v. Herredia 2007, a woman is charged with possessing a controlled substance with intent to distribute while driving her sister’s car across the border. She did not “knowingly” possess, but there is evidence she willfully decided not to ask. She was found guilty.