Crim. Law Notes & Cases

When legislatures pass a new law or modify one it must provide a mens rea (mental aspect)Common law v. Model Penal Code

Theories of Punishment (pp. 30-48)I. In general - Kent Greenwalt - Punishment

a. Dominant approach to justification are retributive and utilitarian i. Retributive: punishment is justified b/c people deserve it

ii. Utilitarian: justification lies in the useful purposes that punishment serves

b. Greenwalt’s 6 characteristics of punishment:i. “it is performed by, and directed at , agents who are responsible in

some sense. God and humans can punish; hurricanes cannot. People, but not faulty television sets, are fit subjects of punishment”

ii. involves “designedly” harmful or unpleasant consequencesiii. the unpleasant consequences usually are “preceded by a judgment of

condemnation; the subject of punishment is explicitly blamed for committing a wrong”

iv. it is imposed by one who has authority to do so v. imposed for a breach of some established rule of behavior

vi. imposed on an actual or supposed violator of the rule of behavior II. Utilitarian Justifications – Jeremy Bentham – an introduction to the principles of

morals and legislation a. Pleasure and pain will be greater or less to someone according to the 4

circumstances:i. Intensity

ii. Durationiii. Certainty or uncertainty iv. Propinquity or remoteness

b. Punishment should not be inflicted in the following cases:i. Where it is groundless: where there is no mischief for it to prevent

ii. Where it must be inefficacious: where it cannot act so as to prevent mischief

iii. Where it is unprofitable or too expensive: where the mischief it would produce would be greater than what it prevented

iv. Where it is needless: where the mischief may be prevented, or cease of itself, w/o it – that is at a cheaper rate

c. Most important catalogs of beneficial consequences that utilitarian’s thought can be realized by punishment:

i. General deterrenceii. Individual deterrence

iii. Incapacitation and other forms of risk management iv. Reform

III. Retributive Justifications – Micheal S. Moore – the moral worth of retribution a. Lex talionis: an eye for an eye

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b. Distinct aspect of retributivism: the moral desert of an offender is a sufficient reason to punish him

c. Negative retribution: guilt is a necessary condition of punishment d. Positive retribution: guilt is both a necessary and sufficient condition for

punishment e. Protective retribution: you made a free choice, now you must live with the

consequences f. Assaultive retribution: treat criminals like noxious insects on the ground

under the heel of society g. Jeffrie G. Murphy & Jean Hampton – Forgiveness & Mercy

i. Retributive punishment is the defeat of the wrongdoer at the hands of the victims

ii. Aims to annul or counter the appearance of the wrongdoer’s superiority and thus affirm the victim’s real value

City of Chicago v. Morales

Issue: whether the Gang Congressional Ordinance violates the Due Process Clause of the 14th amendment to the federal constitution?

NO A law fails to meet the requirements of due process if it is so vague and standardless

that it leaves the public uncertain as to the conduct it prohibits o This ordinances definition of “loitering” is too vague, no conduct is specified

at allo The ordinance allows officers to issue an order w/o first inquiring their

purposeCity’s principal response to concerns about adequate notice:

IV. Is that loiterers are not subject to sanction until after they have failed to comply w/ an officer’s order to disperse

a. Court finds this unpersuasive for 2 reasons:i. Purpose of fair notice requirement is so that ordinary citizens can

conform his conduct to the lawii. Terms of the dispersal order compound the inadequacy of the notice

afforded by the ordinance

4 requirements for violating the ordinance V. Officer must reasonably believe that at least 1 of the 2 or more persons present in a

“public place” is a criminal street gang memberVI. Person must be “loitering”, defined by the ordinance as “ remaining in any one place

with no apparent purpose”VII.Officer must then order “all” of the persons to disperse and remove themselves form

the areaVIII. Person must obey the officers order

2 reasons why criminal laws need to be thorough not vague:IX. May fail to provide the kind of notice that will enable ordinary people to understand

what conduct is prohibited

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X. May authorize and even encourage arbitrary and discriminatory enforcement

The Queen v. Dudley & Stephens

Special verdict: The bad part in this case is Parker was in no way a threat, to think that the use of

necessity as a defense, if this case went that way, wouldn’t be a cloak for atrocious crimes (but, self defense does so and is recognized as a defense)

Rule: it is alright to do something that is criminal as long as it seeks to avoid a greater harm

Inaction can be worse than action in a crime (Brooks was worse) Self defense is a defense for murder when unlawful force is being brought Ask question similar to burn a house of 10 people or 300?

Chapter 4: Actus Reus (pp. 127)

Introductory Comment: Defining “Actus Reus”I. In general a contains 2 components

a. Actus reus: physical or external part of the crime- think of it as coductb. Mens rea: mental or internal ingredient

II. (Eser’s Definition) Actus Reus is to be interpreted as the comprehensive notion of act, harm, and its connecting link, causation.

a. w/ actus expressing the voluntary physical movement in the sense of conduct

b. w/ reus expressing the fact that this conduct results in a certain proscribed harm

III. 2 ways of looking at actus reus:a. conduct: what act is prescribedb. act: doing the act

A. Voluntary Act2.01 Requirement of Voluntary Act; Omission as Basis of Liability; Possession as an Act.(1) A person is not guilty of an offense unless his liability is based on conduct which includes a voluntary act or the omission to perform an act of which he is physically capable.(2) The following are not voluntary acts within the meaning of this Section:(a) a reflex or convulsion;(b) a bodily movement during unconsciousness or sleep;(c) conduct during hypnosis or resulting from hypnotic suggestion;(d) a bodily movement that otherwise is not a product of the effort or determination of the actor, either conscious or habitual.(3) Liability for the commission of an offense may not be based on an omission unaccompanied by action unless:(a) the omission is expressly made sufficient by the law defining the offense; or(b) a duty to perform the omitted act is otherwise imposed by law.

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(4) Possession is an act, within the meaning of this Section, if the possessor knowingly procured or received the thing possessed or was aware of his control thereof for a sufficient period to have been able to terminate his possession.Martin v. State (pp. 128-130)

-provides that actus reus requires a voluntary act, prevents punishment of thoughts Facts:

a man was drunk and arrested at his house by officers, the officers took him onto the highway

upon him being on the highway he was convicted of being drunk on a public highway

man appeals under the terms of the statute, it is presupposed that appearance be voluntary, not

an actual element of the statute, ∆ is arguing that he didn’t appear since he was involuntarily and forcibly carried onto the highway, is contrary to the

principle of the statute Disposition: court reversed and rendered the case N/Q:2. the often stated rule is that criminal law doesn’t punish thoughts (or pre-cogs), but has not always been true

the act requirement of crimes objectives:o assure that evil intent of the man branded a criminal has been expressed in a

manner signifying harm to societyo that there is no longer any substantial likelihood that he will be deterred by

the threat of sanctiono that there has been an identifiable occurrence so that multiple prosecution

and punishment may be minimized o can only deter after the crime

what about if ones thoughts could be known or if one pronounced a thought as such?

o If “proof beyond a reasonable doubt” is sufficient to justify punishment after a crime has occurred, why isn’t it enough to justify it for pre-crime?

4. whats the diference b/t voluntary and involuntary? (1) X raised his arm (2) X’s arm went up

o (1) implies (2), but (2) does not imply (1) o (1) & (2) are not equivalent statements

State v. Utter (pp. 130- 135)

: State π∆: Claude Gilbert UtterFacts:

∆ and his son were living together

Remainder voluntary act will of acting

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son was seen going into ∆’s apartment and shortly after saying “dad don’t” , then shortly after seen stumbling the hallway, then collapsed having been stabbed. Son said right before he died “dad stabbed me”

∆ had served in the military and was honorably discharged ∆ testified that on that day he had drank in the morning

o had bought 2 bottles of wine and drank one of them except for 2 drinks of it o around lunch time went to get 2 qts of whiskey and 4 qts of wine o he sat around with a friend drinking and that the last thing he remembers

until waking up in jail after his sons deathProcedural History:

was charged with murder in the 2π nd degree was convicted by a jury of manslaughter

o introduced evidence on “conditioned response”- an act or pattern of activity occurring so rapidly, so uniformly as to be automatic to certain stimuli

he stated that his jungle warfare training from WWII he had in the 50’s reacted violently on two occasions when approached from the rear

o trial court ruled it wasnt a defense in Washington, and told jury to disregard stated that he was trying to present a defense of irresistible impulse

a theory of criminal insanity (isn’t recognized in this state) but saw it as one for mental incapacity

appeals the convictionπIssue: whether it was error of the trial court to instruct the jury to disregard the evidence on conditional response?Holding: no, no evidence the son came up behind him Reasoning:

there is a certain minimal mental element required in order to est the actus reus element of volition

since he was charged w/ 2nd degree murder and charged w/ manslaughter, the actus reus of both would be homicide

o in order to est. either, the fact of homicide must first be est. o ∆ contends that his evidence was presented for the purpose of determining if

homicide was committed. Argues that it shows no “act” was committed in accordance with the definition of homicide

o ∆ contends that the “acts” committed were not mental process but were learned physical reactions to external stimuli

further states one who is not conscious is incapable of committing a culpable act

absence of consciousness excludes the possibility of voluntary acts and liability Washington supreme court held in State v. Strasburg that “an involuntary act, as it

has no claim to merit, so neither can it induce any guilt” However the use of alcohol or drugs to induce unconsciousness does not allow acts to be discarded

Disposition: evidence presented was insufficient to present to the jury, the jury has no evidence to make such a decision on.

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N/Q:3. in states that recognize automatism, the debate is how the evidence is to be presented. There is a split b/t recognizing automatism and insanity.4. the term “involuntary” has many meanings5. mens rea signifies the state of mind regarding the social harm of the offense

the element of voluntariness applies to the act that caused the social harm even when an offense does not contain mens rea component, a voluntary act may

still be required for conviction7. one can come into possession of illegal drugs involuntarily - if you have a bomb strapped to you and you’ll only live if you rob a bank, and you do, its volulntary (duress is irrelevant to the actus reus element)

B. Omissions (“Negative Acts”)1. General Principles People v. Beardsley (pp. 136-141)Supreme Court of Michigan, 1907150 Mich. 206, 113 N.W. 1128-prosecution based on omission must prove duty (this is the only time duty is concerned)Facts:

Respondent was married and working as a bartender and clerk at the Columbia hotel

o Lived w/ wife in 2 rooms on the ground floor of a house Wife left for a trip, he arranged for Ms. Burns to come to his apartments with him They had met up 2 times before and stayed and drank with each other On sat. march 18 she came to his place and they began drinking

o Stayed with each other until Monday, except for he had work on sun They had liquor and beer brought by a young man who worked at the Columbia

Hotelo On mon young man went to se if anything was neededo Burns asked for the young man to get her camphor and morphine tabletso He brought 6 morphine grains

Burns consumed 3-4 grains, respondent called the young man to have him help her into the basement room that was occupied by Mr. Skoba

Respondent was too intoxicated to help 9-10 pm Skoba called the city marshall and a doctor Burns was dead

Procedural history: respondent was convicted of manslaughter sentenced to prison 1 yr<__<5 yr prosecutor argued that respondent had a duty of care that required him to take

steps to protect her, failure of which constitute an omission Issue: whether respondent had a legal duty to Burns at the time of her death, and of which the omission to perform would make him responsible for her death?Holding: noReasoning:

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law recognizes that in certain circumstances omission of a duty owed that results in death, can be chargeable for manslaughter

o must be a legal duty, not mere moral obligation o omission to perform must be immediate or direct cause of death

must consider Burns was:o older than 30 o use to drinking and being intoxicatedo had been with this guy before & no evidence showed duress, fraud, or deceit

the fact that she was in his house doesn’t imply the prosecutors duty is owed that is not consistent with any law

Disposition: conviction set aside and respondent is discharged - seclusion of helpless= a possibility- assumption of care= not really met in this case

N/Q:2. 5 situations where failure to act may constitute a breach of a legal duty:

I. statute imposes a duty- Ex: state stating a teacher must inform state of any signs of possible child abuse

II. status relationship- ex: parent childIII. contractual duty- ex: personal care giver, lifeguardIV. one voluntarily assumes care of another as to render aid from others- when people

think your going to helpV. person creates a risk of harm to another- knock toddler in pool and watch them

drown (NOTE 5 on pg 141)

2. Distinguishing Acts from Omissions Barber v. Superior Court (pp. 142-147)

Facts: Deceased Herbert underwent surgery for closure of an ileostomy Petitioner Nejdl M.D. was his surgeon Petitioner Barber M.D. was his attending internist After a successful surgery, Herbert suffered cardio-respiratory arrest, revived and

placed on life support Comatose state, not likely to recover, severe brain damage, likely to be permanent Petitioners informed Herberts family

o Family drafted a written request to have all machines taken off that are sustaining life

o 2 days later removed the hydration and nourishment tubes Issue: whether the evidence was sufficient to support the determination that the petitioners should not be held to answer to charges of murder and conspiracy to commit murder?Holding: NOReasoning:

murder: “unlawful killing of a human being with malice aforethought” Penal Code § 187

Malice: can be express or implied: Penal Code § 188

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o Express: an intent unlawfully to take any lifeo Implied: circumstances show an abandoned and malignant heart

Unlawful: defining criminal homicide form those which society deems justifiable Historically death is defined as cessation of the heart and respiratory function Health and Safety Code § 7180(a)(2) provides, in terms of irreversible cessation of

all brain function @ the time petitioners terminated further treatment, Herbert was not dead by

either statutory or historical understandings o considered an omission of further treatment

did the petitioners have a duty to continue to provide life sustaining treatment?o No criminal liability for failure to act unless there is a legal duty to act o Life sustaining treatment isn’t like traditional treatment b/c is isn’t used to

cure but only sustain biological functions o Once treatment is proven to be ineffective, no duty is due + qualified medical

personnel’s opinion Wife is the proper person to make the call

Disposition: petitioner’s omission to continue treatment under the circumstances was not unlawful failure to perform a legal duty

C. Social Harm I. Pp. 148 Insert

II. What result the law requires a. E.g. Knowingly of providing obscene literature to minors (KPOLM)

III. 2 types of offenses a. result crimes- law punishes b/c of unwanted outcome (a lot of crimes don’t

have result element)b. conduct crimes- law prohibits specific behavior, required

IV. b/c the result is a crime not just a tort, we can call the outcome “social harm”V. intangible harm resulting from every crime

VI. social harm- negation, endangering, or destruction of an individual, group, or state interest, which is deemed socially valuable

a. the very essence of crime VII. can have some social harm w/o result

VIII. Actus reus elements of some criminal offenses: a. conduct (nature of crime) b. result (result of conduct) c. Attendant circumstances- a condition that must be present

Chapter 5: Mens ReaA. Nature of Mens Rea United States v. Cordoba-Hincapie (pp. 149-151)

Rule of Law: An act does not make the doer of it guilty, unless the mind is guilty; that is, unless the intent be criminal.

Mens rea- a guilty mind; a guilty or wrongful purpose; a criminal intent

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Actus non Rule: an act does not make the doer of it guilty, unless the mind be guilty; that is, unless the intent be criminal

N/Q:1. The 2 usages of mens rea

Broadly speaking:o Means guilty mind, vicious will, immorality of motive or morally culpable

state of mind o This is the “culpability” meaning of mens rea o ∆ is guilty if they commit a social harm of the offense w/ any morally

blameworthy state of mind Narrowly:

o Mental state the ∆ must have had w/ regard to the social harm elements set out in the offense’s definition

o This is the elemental meaning of mens reaMens Rea ask ONLY 2 Questions:

What does this mens rea word mean? What does this word apply to?

o Analyze as such: K P O L M

Regina v. Cunningham (pp. 151-153)

Rule of Law: Malice requires either an actual intention to do the particular kind of harm that was in fact done or recklessness as to whether such harm should occur or not.

Malice comes to mean- if one intended malicious results Mens rea Q1 case Wants $, goes to gas meter and takes money Judge told jury, Malice means wickedly

B. General Issues in Proving Culpability 1. Intent People v. Conley (pp. 153-159)

Rule of Law: A person, who in committing a battery, intentionally or knowingly causes great bodily harm or permanent disability or disfigurement commits aggravated battery.

- mens rea Q1+2:o 1: what intentionally and Knowingly meano 2: what these apply to (state thinks: hat to I or K cause bodily harm or

disability Facts:

200 high school students were at a party attended w/ several friends, were confronted by another group and decided to π

leave to avoid problems was walking with Marty, ∆ approached and demanded a beer, they rejected π

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∆ trying to hit marty but missed and hit in the face with a wine bottle instead πo broken upper and lower jaws, 4 broken bones in-between nose and lower

left cheek, lost 1 tooth, had root canal surgery, obtained a permanent condition called Mucosal Mouth and partial permanent numbness in one lip

Procedural History:- when jury is instructed w/ “the law presumes” or “∆ presumes” is something that

each party can refute if negative to them ∆ was convicted of aggravated battery based on permanent disability

o Illinois Criminal Code § 12-4(a): “ a person who, in committing a battery, intentionally or knowingly causes great bodily harm, or permanent disability or disfigurement commits aggravated battery

∆ contends originally on appeal that the state failed to prove beyond a reasonable doubt that incurred permanent disabilityπ

o b/c there is no testimony of any task that cant be performed any longer Appellate court: to be disabling it must no longer serves the body in the same

manner as it did before the injuryo Found ’s sufficient to constitute permanent disability π

∆ argues also state failed to prove beyond reasonable doubt that he intended to inflict any permanent disability

o state uses § 12-4(a) and uses 4-4 (intent) and 4-5 (knowledge) o intent can be inferred by the circumstances, offender’s words, weapon used,

and force of blow, absence of warningDisposition: the evidence is sufficient to show intent to cause permanent disability beyond a reasonable doubtN/Q:1. Battery:

generally, criminal battery is an unlawful application of force to the person of another

o requisite mental state is less clear2. Common law intent:

ordinarily defined to include not only those results that are the conscious object of the actor (what he wants to occur) but also results that the actor knows are virtually certain to occur from his conduct, even if he doesn’t want them to occur

3. Proving Intent: your actions reveal your thoughts more than you realize

o an inference prosecutor is required to prove every element of an offense beyond a reasonable

doubt. The due process clause is violated, therefore, if the element of intent is presumed and the ∆ is required to disprove that he intended the ordinary consequences of his voluntary acts

4. Transferred intent: justice is achieved by punishing the ∆ for crime of the same seriousness as the one

he tried to commit against his intended victim law speaks in terms of an unlawful intent to kill a person, not the person intended to

be killed

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6. Specific intent and general intent don’t have universally accepted definitions gen: (1)

o when no particular mental state is set out in the definition of the crime and, therefore, prosecutor need only prove that the social harm of the offense was performed w/ a morally blameworthy state of mind

Spec: (1)o An offense which a mental state is expressly set out in the definition of the

crime Spec: (2)

o Denote an offense that contains in its definition the mens rea element of intent or perhaps knowledge

Gen: (2)o Reversed for crimes that permit conviction on the basis of a less culpable

mental state, like recklessness or negligence Gen: (3)

o Any mental state whether expressed or implied, in its definition of the offense that relates solely to the conduct and/or result that constitutes the social harm of the criminal offense

Spec: (3)o Special mental element which is required above and beyond any mental state

required w/ respect to the actus reus of the crime o 1 of these 3 types of special mental elements is typically found in the

definition of specific intent crimes: (1) prove an intention by the actor to commit some future act,

separate from the actus reus of the offense (2) proof of a special motive or purpose for committing the actus reus proof of the actor’s awareness of an attendant circumstance

Lefrancois Gen. v. Spec. Class Explanation:PKRN

Gen v. Spec. Tests:Test 1:

- if all the words are below the line Gen. Intent Test 2:

- If you have even just 1 that’s above the line:- 2A: does the mens rea of this offense require the intention to do an act beyond the

actus reus? (e.g. burglary requires breaking and entering of another’s dwelling at night w/ intent to commit a felony)

o if it does Spec. Intent (all “attempted” crimes fall here)o If it does not go to 2B

- 2B: does it require special motive or purpose?

High Cognitive order

Low Cognitive orderLine for Test

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o Yes spec Intent o No 2C

- 2C: is knowledge of some AC required?o Yes spec intento No gen intent

2. The Model Penal Code Approach PKRN

Only trick in defining mens rea under MPC 2.02 is purpose and knowingly have 2 meanings

Crimes have 3 parts:o Conducto Resulto Attendant Circumstance

MPC 2.02 answers the 2 questions for mens reaPurpose:1. defines purposeful conduct or purposeful result

If you want to, that’s your goal, meant to2. act purposefully if aware of AC or believed or hoped it existed

Knowingly:1. knowingly doing something, when your aware your doing it2. knowingly if it is practically certain actions will cause the result

Recklessly: Aware of risk, disregard though Risk must be substantial and unjustifiable Fact that you disregarded has to be a gross deviation of conduct from what a law

abiding person would do in the situation

Negligently: Unaware, should’ve been aware Almost same as recklessness Gross deviation from what a reasonable person would do

3 Principles of where mens rea words go:1. When no culpability is listed, elemet to establish if person acts either purposefully,

knowingly, or recklessly a. NOT negligently

2. When the prescribed culpability requirement doesn’t distinguish among material elements… It will apply to ALL

3.

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3. “Knowledge of Attendant Circumstances (The “Willful Blindness” Problem)State v. Nations (pp. 164-168)

Rule of Law: to “knowingly” engage in criminal conduct, a defendant must have actual knowledge of the existence of the attendant circumstances which constitute the crime.

Criminal Code read literally defines “knowingly” as actual knowledge w/ respect to AC

o Excluding willful shutting of ∆’s eyes cases MPC expands definition to include even willful blindness Legislature chose the narrower (Criminal Code), limiting to actual knowledge Just b/c ∆ didn’t check the girls ID, doesn’t mean she didn’t know she wasn’t <17

o At best proves ∆ did not know or willfully shut her eyes ∆ was only aware of the “high probability” which isn’t actual knowledge couldn’t prove actual knowledge

N/Q:

3. willful blindness: 2 basic requirements:

o ∆ must subjectively believe there is a high probability that a fact existso ∆ must take deliberate actions to avoid learning of that fact

4. Problems in Statutory InterpretationFlores-Figueroa v. U.S. (pp. 169-174)

Rule of Law: Before an individual may be convicted of the crime of aggravated identity theft under 18 USC § 1028A(a)(1),gov’t must prove that he knew that the ID he used to commit predicate crimes belonged to someone else

matter of ordinary English grammar, “knowingly” naturally reads as to applying to all the subsequently listed elements of the crime

Gov’t presents no example of a sentence which would lead the hearer to hear contrary

reversed

C. Strict Liability OffensesU.S. v. Cordoba-Hincapie (pp. 174-176)

Rule of Law: Criminal liability is permitted to attach w.o regard to fault in instances in which actor’s conduct involves minor violations of public welfare laws.

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Strict liability- liability for all injuries proximately caused by a party’s conducting of certain inherently dangerous activities w/o regard to negligence or fault

If punishment of the wrongdoer far outweighs regulation of the social order as a purpose of the law in question, the mens rea probably is not required

Strict liability has been permitted in the criminal law in a # of other instances such as the crime to “statutory rape”

Staples v. U.S. (pp. 176-185)

Rule of Law: When construing a statute as dispensing w/ mens rea would require the ∆ to have knowledge only of traditionally lawful conduct, a severe penalty is a further factor tending to suggest that congress did not intend to eliminate a mens rea requirement.

Garnett v. State (pp. 185-192)

Rule of Law: state statute prohibiting sexual intercourse w/ underage persons makes no reference to the actor’s knowledge, belief, or other state of mind.

D. Mistake and Mens Rea 1. Mistake of Fact People v. Navaro (pp. 193-197)

Rule of Law: if one takes personal property w/ the good faith belief that the property has been abandoned or discarded by the true owner, he is not guilty of theft, even where such good-faith belief is unreasonable.

2. Mistake (or Ignorance) of LawPeople v. Marrero (pp. 197-207)Rule of Law: if a person has a good faith belief that he has a right to a certain property, he is not guilty of larceny, even if the belief is unreasonable.

I. Uses good faith as a defense to specific intent crime II. In order to be convicted of larceny ∆ must take another’s property w/ intent to

permanently deprive him of the property III. If one truly believes he has right to property, he cannot possibly intend to steal the

property IV. As long as the belief is in good faith, reasonableness of belief doesn’t matter (b/c you

cannot negligently steal)V. HELD: not guilty

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Cheek v. United States (pp. 207-212)Rule of Law: a good faith misunderstanding of the law or a good faith belief that one is not violating the law does not have to be reasonable to negate the element of willfulness.

I. Statutes of tax law can make it difficult for average citizen to know extenet of his duties under tax law

II. Specific intent to violate the law is an element of ceratin federal criminal offenses III. Term “willfully” carved out an exception to GR that mistake of law is not a defense

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