Criminal Law – McAdams – Winter-Spring 2009

PART ONE: THE CRIMINAL JUSTICE SYSTEM AND INTRODUCTORY BEARINGS

1)  JUSTIFICATIONS FOR PUNISHMENT:

  1. SPECIFIC PREVENTION – Preventing the offender from committing future crimes.
  2. “Specific” Deterrence – imposing punishment upon the offender may cause her to fear the penalty for future crimes and thus deter her from committing them.
  3. Incapacitation – Restraints on offenders liberty, thus making it impossisble for her to engage in criminal behavior during period of restraint.
  4. Treatment – Enables authorities to treat and perhaps rehabilitate the offender.
  5. GENERAL PREVENTION – Penalizing offenders may also prevent the commission of crimes by others.
  6. “General Deterrence” - Punishing offender can have a “general deterrent” effect by indirectly warning others to anticipate similar punishment should they violate the criminal law.
  7. “Moralizing” Effect – Convincing others that violation of criminal statutes is morally wrong.
  8. Quite apart from fear of punishment, such persons might abstain from criminal conduct because of their unwillingness to engage in morally reprehensible behavior.
  9. “Social Solidarity” Effect – Some suggest that social order requires a widespread consensus that criminal behavior is wrong and that subjecting offenders to punishment will maintain that consensus.
  10. Otherwise, people will regard themselves as free to violate other criminal laws.
  11. Channeling Resentment – If the legal system doesn’t punish criminal offenders, then the people will take the law into their own hands.
  12. RETRIBUTION
  13. Punishing an offender is justified simply because she has committed a wrongful act!

2)  LEGALITY – The Process of Defining Crime

  1. Nulla poena sine lege – No punishment without law.
  2. There must be a statutory basis for criminal punishment – Criminal laws flow from the legislature, not the common law.
  3. Statutory interpretation is used to determine LEGISLATURE’S INTENT!
  4. Use your canons of construction, Evan!
  5. Expressio Unious
  6. “Dog that didn’t Bark”
  7. Legislative History
  8. Plain Language (shut it, Scalia).
  9. In the absence of a mens rea term, it tends not to mean that there was a MR intended.
  10. EXCEPT – Public Welfare Offenses à might be STRICT LIABILITY!
  11. DUE PROCESS PROHIBITION AGAINST VAGUENESS:

i.  General Rule: The Due Process Clauses prohibit enforcement of statutes defining crimes if those statutes are impermissibly vague.

  1. RATIONALE: Due Process serves to assure that persons can tell, by examing statutes, whether the conduct anticipated will be criminal; thus is assures notice.
  2. ALSO – DISCOURAGES ARBITRAY ENFORCEMENT BY DISCRIMINATORY POLIC EOFFICERS!
  3. CRITERIA FOR EVALUATING –
  4. Unconstitutionally vague if:
  5. it fails to define the offense with sufficient definiteness
  6. So that ordinary people can understand what conduct is prohibited.
  7. Lanzetta v. NJ – Statute’s meaning of “gang” is so unclear that it is virtually impossible to determine in advance whether a contemplated course of conduct is forbidden by law.

4.  OR

  1. So as to discourage arbitrary and discriminatory application.
  2. City of Chicago v. Morales – Definition of loitering is so imprecise that it gives cops absolute discretion to determine what activities constitute loitering and thus can serve as the basis for an order and prosecution.
  3. Fails to provide constitutionally required minimal guidelines to govern law enforcement à Unconstitutionally vague!
  4. Evaluated AS APPLIED.
  5. A D can challenge only whether a criminal statute is vague as applied to the facts of his case!
  6. Defendant must show that the statute failed to give him notice that the conduct for which he was being prosecuted was prohibited!
  7. EXCEPTIONS:
  8. If a statute covers a considerable amount of constitutionally protected conduct, such as speech, it can be evaluated “on its face.”
  9. When a statute infringes on constitutionally protected rights and its tendency to encourage arbitrary application by police “permeates its text” a D can attack on face.
  10. City of Chicago v. Morales – Statute infringes on right of freedom of movement and its vagueness permeates the text.

THE GENERAL ELEMENTS OF CRIME

ACTUS REAS:

1)  RATIONALE:

  1. No legitimate function is served by subjecting persons to crimal liability solely for harboring evil intent.
  2. Notice function – defines precisely what it is that the law proscribes.

2)  AFFIRMATIVE ACTS:

a.  ELEMENTS:

b.  Movement

  1. Ordinarily, the “act” is a physical movement of D’s body, such as pulling trigger of gun or stabbing with knife.

c.  ACT MUST BE VOLITIONAL:

  1. The physical movement constituting the act must be conscious and volitional.
  2. NOT – reflexes, convulsions, movements during sleep and conduct during hypnosis or resulting from hypnosis.
  3. Martin v. State – D not convicted for “appearing drunk in public” because he was dragged out there by a police officer.
  4. MPC 2.01(2)(a)-(D).
  5. UNCONSCIOUSNESS: MPC §2.01(2)(b) à Criminal liability cannot ordinarily be based on movements made while defendant was unconscious.
  6. People v. Newton – During struggle with police officer, D was shot in the stomach, went unconscious and during the ensuing struggle, officer’s gun went off killing the officer.
  7. “Unconsciousness provides a complete defense to crimes such as homicide.”
  8. EXCEPTION – A state of unconsciousness will NOT preclude a finding of criminal liability where D was at fault in causing his unconsciousness.
  9. Watkins v. People -- Where guy starts a fight, gets knocked unconscious and then kills his opponent, since at fault ins tarting the fight, he has commited an “act” for purposes of criminal homicide.
  10. POLICY à should this limit liability to the initial crime (starting the fight, here)?
  11. EXCEPTION – Liability when actor engages in a course of conduct knowing he will or might become unconscious and do harm.
  12. People v. DEcina – During seizure, epileptic runs over guy. By placing himself in position where his anticipated unconsciousness would cause harm, D may be held criminally responsible.
  13. RATIONALE – Liability imposed for earlier act committed while fully conscious. RECKLESSNESS AND NEGLIGENCE!
  14. EXCEPTION – MPC 2.01(2)(d) – Habitual acts are not considered involuntary.

3)  ACTS OF OMISSION:

  1. ELEMENTS:
  2. DEFENDANT WAS UNDER A LEGAL DUTY TO ACT
  3. Jones v. United States – “A finding of legal duty is the critical element of the crime charged and failure to instruct the jury concerning it was plain error.
  4. RATIONALE – Based on need to establish reasonable and discernible limits for omissions, where person would have sufficient advance notice of when person would have to act to avoid liability.
  5. TYPES OF LEGAL DUTIES:

1.  Duties based on relationship between parties (in common law):

  1. Parents have a duty to prevent harm to children.
  2. Husband has a duty to prevent harm to wife.
  3. State v. Smith – Violation of husband’s duty to provide shelter and clothing for insane wife.
  4. De Facto Family Members – Some courts find duty, others do not.
  5. People v. Bearsley – Man not liable for failing to get help when mistress OD’d on morphine in his house.
  6. State v. Miranda – Live-in-boyfriend liable when girlfriend beats her child to death.

2.  Statutory duties.

  1. Some duties based on relationships are embodied in statutes.
  2. LIMITATION – Due process requires that criminal statutes be sufficiently specific and precise so as to give fair warning of the required conduct.
  3. Pope v. State – Woman takes in mother and child, and mother kills child after lengthy abuse. Court interprets statute requiring duty for one “responsible for child” narrowly so Pope avoids liability.
  4. EXAMPLE à Good Samaritan Laws!

3.  Voluntarily Undertaking Risk:

  1. Has a duty to use reasonable care in so doing.
  2. Once begin act, cannot abandon one’s efforts when that would leave imperiled party in a worse condition.

4.  Creation of Peril:

  1. One who wrongfully places another in a position of danger has a duty to aid that person.
  2. Failure to aid = criminal liability.
  3. DEFENDANT HAD THE NECESSARY KNOWLEDGE
  4. Defendant can only be found liable when she has knowledge of the FACTS creating the duty.
  5. EX: Hit and run driver must be aware that there was an actual accident.
  6. SOME COURTS find there must be knowledge of the law requiring duty.
  7. IT WOULD HAVE BEEN POSSIBLE FOR DEFENDANT TO ACT
  8. IT must have been possible for actor to perform what she failed to do.
  9. Mere inconvenience will not excuse a failure to perform.

MENS REA:

1)  EACH ELEMENT OF A CRIME (UNLESS IT IS STRICT LIABILITY) REQUIRES A MENS REA!

2)  COMMON LAW MENS REA:

  1. Mens Rea Requirement for carious crimes traditionally falls into one of four categories.
  2. GENERAL INTENT:
  3. State of mind required is intent to commit the act constituting the crime.
  4. D need not have intended to violate the law, nor need he be aware that law made act criminal.
  5. One who has voluntarily done an act is PRESUMED to have intended that act.
  6. LIMITATION – Some crimes require that D have had “knowledge” of certain facts which prosecution must prove to establish the crime.
  7. SPECIFIC INTENT:
  8. In addition to general intent, these crimes require intent to do some further act or cause some additional consequences beyond that which must have been committed or caused in order to complete the crime.
  9. SO THIS IS NEEDED IN ADDITION TO GENERAL INTENT!
  10. Specific proof is required, but may be circumstantial.
  11. CRIMINAL NEGLIGENCE:
  12. Must involve a higher probability of harm and a greater degree of unreasonableness than is necessary for imposing civil liability.
  13. State v. Hazelwood – Exxon Valdez disaster. Negligence is sufficient when criminal penalties are imposed on something society can reasonably expect to deter.
  14. MALICE:
  15. The commission of a volitional act without legal excuse of justification.
  16. Regina v. Cunningham – “The word ‘maliciously’ in a statutory crime postulates foresight of consequence.”
  17. REQUIRED FOR ALL – FORESEEABILITY OF PROBABLE RESULT OF ACTION:

i.  Criminal liability usually only attaches where D is shown to have contemplated the actual harm that could have resulted from his conduct.

  1. Reginav. Faulkner – Man stealing rum lights a match and burns ship down. Conviction overturned because no proof that he knew that lighting the match would result in the fire on the ship.
  2. Regina v. Cunningham – For malicious act, it must be seen that he foresaw injury that might have resulted from removing gas meter.

COMMON LAW MR REQUIREMENTS:

SPECIFIC INTENT / GENERAL INTENT / CRIMINAL NEGLIGENCE / MALICE / STRICT LIABILITY
Solicitation / Rape / Involuntary manslaughter / CL murder / Statutory Rape
Conspiracy / Mayhem / Battery / Arson / Bigamy
Attempt / False imprisonment
1st Degree premeditated murder
Assault (attempted battery)
Burglary
Larceny, Robbery

3)  MPC MENS REA:

  1. CATEGORIES:

i.  Purpose - §2.02(2)(a)

  1. “With desire”
  2. Conscious desire to engage in certain conduct or cause a certain result.
  3. Acts purposefully with regard to attendant circumstances if actor hopes, believes or is aware that they exist.

ii. Knowledge - §2.02(2)(b)

  1. “Awareness of a certainty.”
  2. Actor is aware that it is “practically certain” that her conduct will cause the result.
  3. ALSO – knowledge of attendant circumstances shown if D knew that say, stolen car he is buying is stolen.
  4. EXCEPTION – “Willful Blindness”
  5. Knowledge is not a defense when the defendant has gone out of his way deliberately not to know the truth.
  6. US v. Jewell – Deliberate ignorance is equally culpable to positive knowledge and prosecutors must prove that Defendant did not know of the existence of drugs in the car was due solely to a PURPOSE to avoid learning the truth.
  7. MPC §2.02(7) – Knowledge of attendant circumstances is established if “a person is aware of a high probability of…[the attendant circumstance’s] existence, unless he actually believes that it does not exist.”

iii.  Recklessness - §2.02(2)(c)

  1. “Awareness of high risk.”
  2. Actor is aware of a substantial and unjustifiable risk that a certain result will occur because of conduct or that a certain circumstance exists.
  3. MPC 2.02(2)(c) – Risk must be such that the actor’s conduct “involves a gross deviation from the standard of conduct that law-abiding person would observe.”

iv.  Negligence - §2.02(2)(d)

  1. “Existence of high risk.”
  2. Actor should have been aware of a substantial and unjustifiable risk that a certain result would occur or that a certain circumstance would exist.
  3. A reasonable person would have foreseen the risk!
  4. INTERPRETIVE RULES:
  5. MPC §2.02(3) – If you don’t see one of the four mens rea terms in a MPC provision, then you can establish the element if purpose, knowledge or recklessness is found.
  6. Recklessness is ordinarily the bare minimum unless otherwise noted.
  7. EXCEPTION - MPC §2.02(4) – If negligence is stated and other terms are not applied to any of the individual material elements of the crime, then a minimum of negligence must be shown for all of the material elements.
  8. CARRY-OVER RULE:
  9. If one mens rea term is used in regards to a material act of a crime, then that mens rea term is the base minimum for every other material act required for that crime.
  10. So if knowledge is specified for material element A, then knowledge is required for all other material elements unless specified otherwise.

4)  STRICT LIABILITY:

  1. TYPES:
  2. COMPLETE STRICT LIABILITY:
  3. Requires no mens rea whatsoever.
  4. United State v. Balint à Despite not knowing they were selling opium products, they were convicted of narcotics trafficking because legislative intent was that sellers sell at their own peril.
  5. LIMITED STRICT LIABILITY:
  6. Include no requirement of awareness with regard to ONE OR MORE IMPORTANT ASPECTS of the offense, although some mens rea must be proved.
  7. IDENTIFYING STRICT LIABILITY CRIMES – LEGISLATIVE INTENT:
  8. Whether a crime imposes strict liability turns initially upon legislature’s intent, so court’s must analyze that through various means:
  9. Burden of Establishing Strict Liability:
  10. Strict liability is disfavored and thus one arguing for strict liability has the burden of establishing that the legislature intended to impose this kind of liability. Staples v. United States.
  11. FACTORS SUGGESTING STRICT LIABILITY:
  12. If most persons charged under the statute would in fact have the mens rea that might otherwise be required, this will encourage a court to find that MR need not be proven in each particular case. Morissette v. US.
  13. Crime is a “new” statutory offense rather than traditional common law offense.
  14. It does not involve a direct and positive infringement on the rights of other persons.
  15. Part of broad regulatory scheme.
  16. Imposes a relatively light punishment on conviction.
  17. Requiring proof of MR would impede implementation of legislative process.
  18. Public Welfare laws are generally strict liability.
  19. FACTORS SUGGESTING NO SL:
  20. Crime resembles traditional common law crime.
  21. Severe penalty is imposed on conviction – Morisette.
  22. Imposing strict liability would create a serious risk of convicting entirely “innocent” persons – people neither aware nor alerted to the possibility that their conduct is criminal.
  23. Staples v. US à not SL because dispensing awareness that a D know the nature of a weapon would create a significant risk that innocent gun owners would incur criminal liability.
  24. Constitutional consideration s- would imposing SL be constitutional or not?
  25. State v. Guminga – Found that SL, vicarious liability statute violated due process.

vi.  “Regulatory” or “Public Welfare” Offenses