Crim Power Points

8/3/2019 Crim Power Points

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Justifications for Punishment

Retributivism -- just desertsWhat causes criminal todeserve punishment?

Violation of social contract? Violation ofDivine/Natural Law?Need to correct criminals self-elevation? Need to express hatred of criminal?

2 Justifications for Punishment

Utilitarianism punishment is justified if, and only if, itincreases the overall level of social happiness or

pleasure

Deterrence Incapacitation/risk-managementrehabilitation

3 The Pulverizer

The Pulverizer instantly and painlessly dematerializesmurderers. To maximize its deterrent effect, its inventors

have proposed using it for televised executions at thehalftime of the Super Bowl. Or, to be more forthcoming,everyone believes the Pulverizer dematerializesmurderers. In reality, it transports them to CandyMountain where they enjoy better lives than they haveever known. The inventors of the Pulverizer realized that,compared to actual executions, simulated executionswould be Pareto efficient. A murderer's pretended

execution coupled with his banishment to a lovelymountain in a galaxy far, far away would make at leastone person (the murderer) better off and no one worseoff.


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Cause-in-fact

But-for cause necessary, but not necessarilysufficient. (i.e. two non-mortal knife wounds which

together result in death)

AccelerationConcurrent Sufficient Causes -- i.e.substantial factor.

. 2 MPC 2.03(1)(1) Conduct is the cause of aresult when: (a) it is an antecedent but for whichthe result in question would not have occurred; and(b) the relationship between the conduct and resultsatisfies any additional causal requirementsimposed by the Code or by the law defining theoffense.

. 3 Proximate Cause -- factors1. De minimiscontribution to social harm.

. 4 Proximate Cause -- factors2. IntendedConsequences doctrine.

. 5 Proximate Cause -- factors3. Omissions donot relieve of liability.

. 6 Proximate Cause -- factors4. Foreseeabilityof intervening cause. a. Coincidental: relieves ofliability unlessb. Responsive: does not relieve ofliability unless truly abnormal or bizarre.

. 7 Proximate Cause -- factors 5. Apparent-SafetyDoctrineapplies where defendants active forcehas come to rest in a position of apparent


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foreseeable.

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safety.

4. Foreseeability of intervening cause.a. Coincidental:relieves of liability unless foreseeable. b. Responsive:

does not relieve of liability unless truly

abnormal or bizarre.

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7 Proximate Cause -- factors

5. Apparent-Safety Doctrineapplies where defendantsactive force has come to rest in a position of apparentsafety.

Focus on victims failure to do something easily within hisgrasp that would have prevented harm.

Note: Tort concepts of contributory negligence and

comparative negligence do not apply.8 Proximate Cause -- factors6. Free, Deliberate,Informed Human Intervention.

9 MPC 2.03(2)


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(2) When purposely or knowingly causing a particularresult is an element of an offense, the element is notestablished if the actual result is not within the purpose orthe contemplation of the actor unless:

(a) the actual result differs from that designed orcontemplated, as the case may be, only in the respectthat a different person or different property is injured oraffected or that the injury or harm designed orcontemplated would have been more serious or moreextensive than that caused; or

(b) the actual result involves the same kind of injury orharm as that designed or contemplated and is not tooremote or accidental in its occurrence to have a [just]bearing on the actor's liability or on the gravity of hisoffense.

10 MPC 2.03(3)-(4)

(3) When recklessly or negligently causing a particular

result is an element of an offense, the element is notestablished if the

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actual result is not within the risk of which the actor isaware or, in the case of negligence, of which he shouldbe aware unless:

(b) the actual result involves the same kind of injury orharm

as that designed or contemplated and is not too remoteor accidental in its occurrence to have a [just] bearing onthe actor's liability or on the gravity of his offense.


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10 MPC 2.03(3)-(4)

(3) When recklessly or negligently causing a particularresult is an element of an offense, the element is notestablished if the actual result is not within the risk ofwhich the actor is aware or, in the case of negligence, ofwhich he should be aware unless:

(a) the actual result differs from the probable result onlyin the respect that a different person or different propertyis injured or affected or that the probable injury or harmwould have been more serious or more extensive thanthat caused; or

(b) the actual result involves the same kind of injury orharm as the probable result and is not too remote oraccidental in its occurrence to have a [just]bearing onthe actor's liability or on the gravity of his offense.

(4) When causing a particular result is a material elementof an offense for which absolute liability is imposed bylaw, the element is not established unless the actualresult is a probable consequence of the actor's conduct.


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3

MPC 1.13

General Definitions.

In this Code, unless a differentmeaning plainly is required:

...

(2) "act" or "action" means a bodily movement whethervoluntary or involuntary;

(3) "voluntary" has the meaning specified in Section 2.01;

(4) "omission" means a failure to act;

. 2 Model Penal Code 2.01 (1) A person is notguilty of an offense unless his liability is based onconduct that includes a voluntary act or the omissionto perform an act of which he is physically capable.

. 3 Model Penal Code 2.01(2) The following arenot voluntary acts within the meaning of thisSection: (a) a reflex or convulsion; (b) a bodilymovement during unconsciousness or sleep; (c)conduct during hypnosis or resulting from hypnoticsuggestion; (d) a bodily movement that otherwiseis not a product of the effort or determination of theactor, either conscious or habitual.

. 4 Liability for omissions1. Statutory duty to rescue/ duty to report

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2. Status. Examples: parent/child, spouse/spouse,


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master/

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servant.

3. Contractual duty. Examples: doctor/patient, nursinghome/

suggestion;

(d) a bodily movement that otherwise is not a product ofthe effort or determination of the actor, either consciousor habitual.

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4 Liability for omissions1. Statutory duty torescue / duty to report

2. Status. Examples: parent/child, spouse/spouse,master/ servant.

3. Contractual duty. Examples: doctor/patient, nursinghome/ resident, nanny/child.

4. Assumption of care / seclusion of victim.

5. Causation of Risk. Example: motorist non-negligentlystrikes person in the street and injures them.

5 Model Penal Code 2.01(3) Liability for thecommission of an offense may not be based


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on an omission unaccompanied by action unless:

(a) the omission is expressly made sufficient by the lawdefining the offense; or

(b) a duty to perform the omitted act is otherwiseimposed by law.

(4) Possession is an act, within the meaning of thisSection, if the possessor knowingly procured or receivedthe thing possessed or was aware of his control thereoffor a sufficient period to have been able to terminate hispossession.

Principle of Legality

Nullem crimen sine lege; Nulla poena sine lege

2 Embodied in U.S. Constitution Prohibition ofEx Post Facto laws.

Prohibition of Bills of Attainder. Due Process clauseof 5th and 14th Amendments.3 Commonwealth v. Mochan

Common law permits prosecution of any act whichdirectly injures or tends to injure the public to such anextent as to require the state to interfere and punish thewrongdoer, as in the case of acts which injuriously affect

public morality, or obstruct, or pervert public justice.

4 Principles

. Legislature, not court, should define whichinjuries to the public are criminal.


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. Statute should be sufficiently specific so as togive fair warning to defendant.

. Statute should not be so vague as to give rise

to arbitrary or discriminatory enforcement.

. Rule of lenity Where statute susceptible oftwo interpretations, adopt the more lenient. 5More Principles of ConstructionLanguage ofstatute should be interpreted according to its fairimport. Statute should be construed with regardto the evil which it is intended to suppress. Look atcommon law meaning, legislative history and prior

judicial interpretations to limit application. Dontinvalidate for overbreadth when limiting constructionavailable.

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Statute should be construed with regard to the evil whichit is intended to suppress.

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Look at common law meaning, legislative history andprior judicial interpretations to limit application.

Dont invalidate for overbreadth when limitingconstruction available.


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Mens Rea

Actus non facit reum nisi mens sit rea. An act doesnot create guilt unless the mind be guilty.

. 2 Mens Rea Culpability v. Elemental

culpability definition: guilty mind,vicious will, immorality of motive, morallyculpable state of mind.

elemental definition: the mental statethe defendant must have with respect to thesocial harm elements set out in the definitionof the offense.

. 3 Model Penal Code 2.02(1) MinimumRequirements of Culpability. Except as provided inSection 2.05, a person is not guilty of an offense

unless he acted purposely, knowingly, recklessly ornegligently, as the law may require, with respect toeach material element of the offense.

. 4 Model Penal Code 2.02(2) Kinds of CulpabilityDefined. (a) Purposely. A person acts purposelywith respect to a material element of an offensewhen: (i) if the element involves the nature of hisconduct or a result thereof, it is his conscious objectto engage in conduct of that nature or to cause sucha result; and (ii) if the element involves theattendant circumstances, he is aware of theexistence of such circumstances or he believes orhopes that they exist.


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. 5 Model Penal Code 2.02 (b) Knowingly.

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an offense when:

(i) if the element involves the nature of his conduct or aresult thereof, it is his conscious object to engage inconduct 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 hebelieves or hopes that they exist.

5 Model Penal Code 2.02 (b) Knowingly.

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A person acts knowingly with respect to a materialelement of an offense when:

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

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

cause such a result.

. 6 Model Penal Code 2.02 (c) Recklessly. A personacts recklessly with respect to a material element ofan offense when he consciously disregards asubstantial and unjustifiable risk that the material


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element exists or will result from his conduct. Therisk must be of such a nature and degree that,considering the nature and purpose of the actor'sconduct and the circumstances known to him, itsdisregard involves a gross deviation from thestandard of conduct that a law-abiding person wouldobserve in the actor's situation.

. 7 Model Penal Code 2.02 d) Negligently. A personacts negligently with respect to a material element ofan offense when he should be aware of asubstantial and unjustifiable risk that the material

element exists or will result from his conduct. Therisk must be of such a nature and degree that theactor's failure to perceive it, considering the natureand purpose of his conduct and the circumstances

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conduct and the circumstances known to him, itsdisregard involves a gross deviation from the standard ofconduct that a law-abiding person would observe in theactor's situation.

7 Model Penal Code 2.02 d) Negligently.

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A person acts negligently with respect to a materialelement of an offense when he should be aware of asubstantial and unjustifiable risk that the material element


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exists or will result from his conduct. The risk must be ofsuch a nature and degree that the actor's failure toperceive it, considering the nature and purpose of hisconduct and the circumstances known to him, involves agross deviation from the standard of care that areasonable person would observe in the actor's situation.

. 8 Model Penal Code 2.02 (3) Culpability RequiredUnless Otherwise Provided. When the culpabilitysufficient to establish a material element of anoffense is not prescribed by law, such element isestablished if a person acts purposely, knowingly or

recklessly with respect thereto. (4) PrescribedCulpability Requirement Applies to All MaterialElements. When the law defining an offenseprescribes the kind of culpability that is sufficient forthe commission of an offense, without distinguishingamong the material elements thereof, such provisionshall apply to all the material elements of theoffense, unless a contrary purpose plainly appears.(5) Substitutes for Negligence, Recklessness andKnowledge. When the law provides that negligencesuffices to establish an element of an offense, suchelement also is established if a person actspurposely, knowingly or recklessly. Whenrecklessness suffices to establish an element, suchelement also is established if a person acts

purposely or knowingly. When acting knowinglysuffices to establish an element, such element alsois established if a person acts purposely.

. 9 Model Penal Code 2.02 (6) Requirement ofPurpose Satisfied if Purpose Is Conditional. When a


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particular purpose is an element of an offense, theelement is established although such purpose isconditional, unless the condition negatives the harmor evil sought to be prevented by the law definingthe offense.

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(7) Requirement of Knowledge Satisfied by Knowledge ofHigh

recklessness suffices to establish an element, suchelement also is established if a person acts purposely orknowingly. When acting knowingly suffices to establishan element, such element also is established if a personacts purposely.

.

9 Model Penal Code 2.02 (6) Requirement ofPurpose Satisfied if Purpose Is Conditional. When aparticular purpose is an element of an offense, theelement is established although such purpose isconditional, unless the condition negatives the harmor evil sought to be prevented by the law definingthe offense. (7) Requirement of KnowledgeSatisfied by Knowledge of High Probability. When

knowledge of the existence of a particular fact is anelement of an offense, such knowledge isestablished if a person is aware of a high probabilityof its existence, unless he actually believes that itdoes not exist. (8) Requirement of WilfulnessSatisfied by Acting Knowingly. A requirement that an


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offense be committed wilfully is satisfied if a personacts knowingly with respect to the material elementsof the offense, unless a purpose to impose furtherrequirements appears.

. 10 Model Penal Code 2.02 (9) Culpability as toIllegality of Conduct. Neither knowledge norrecklessness or negligence as to whether conductconstitutes an offense or as to the existence,meaning or application of the law determining theelements of an offense is an element of suchoffense, unless the definition of the offense or the

Code so provides. (10) Culpability as Determinantof Grade of Offense. When the grade or degree ofan offense depends on whether the offense iscommitted purposely, knowingly, recklessly ornegligently, its grade or degree shall be the lowestfor which the determinative kind of culpability isestablished with respect to any material element ofthe offense.

. 11 Model Penal Code 2.03 (2) When purposely orknowingly causing a particular result is an elementof an offense, the element is not established if theactual result is not within the purpose or thecontemplation of the actor unless: (a) the actualresult differs from that designed or contemplated, asthe case may be, only in the respect that a different

person or different property is injured or affected or

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negligently, its grade or degree shall be the lowest for

which the determinative kind of culpability is establishedwith respect to any material element of the offense.

. 11 Model Penal Code 2.03 (2) When purposely orknowingly causing a particular result is an elementof an offense, the element is not established if theactual result is not within the purpose or thecontemplation of the actor unless: (a) the actualresult differs from that designed or contemplated, asthe case may be, only in the respect that a differentperson or different property is injured or affected orthat the injury or harm designed or contemplatedwould have been more serious or more extensivethan that caused;

. 12 MPC 2.02 hypos #1 Stinneford sees his worstenemy (WE) walking down the street, and decidesthat this is time to end it. He pulls out an arrow,douses it in gasoline, lights it on fire, and shoots it atWEs heart. What is Stinnefords mens rea regardingkilling WE?

. a. Purposeful

. b. Knowing

. c. Reckless

. d. Negligent

. e. None of the above


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. 13 MPC 2.02 hypos #2 Same facts as before, exceptWE is standing in front of a big bulls-eye target, andStinneford is engaging in target practice. Stinnefordshoots the flaming arrow, hoping that it will passharmlessly through the chest of WE and hit thetarget. Stinnefords mens rea regarding WE?

. a. Purposeful

. b. Knowing

. c. Reckless

.

d. Negligent


. 14 MPC 2.02 hypos #3 Same facts as before, exceptthat Stinneford believes that his flaming arrow ismagic, and that it will steer itself around WE andhit target. Stinnefords mens rea regarding killingWE?

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a. Purposeful

b. Knowingc. Recklessd. Negligente. None of the


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above

. 14 MPC 2.02 hypos #3 Same facts as before, exceptthat Stinneford believes that his flaming arrow is

magic, and that it will steer itself around WE andhit target. Stinnefords mens rea regarding killingWE?

. a. Purposeful

. b. Knowing

. c. Reckless

. d. Negligent


. 15 MPC 2.02 hypos #4

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Same facts as hypo #1, except that Human Shield (HS)is standing between Stinneford and WE. Stinnefordshoots the arrow, hoping that it will pass harmlesslythrough the chest of HS and kill WE. Stinnefords mensrea with respect to HS?

. a. Purposeful

. b. Knowing

. c. Reckless

. d. Negligent



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. 16 MPC 2.02 hypos #5 Same facts as above, exceptthat Stinnefords flaming arrow misses both WE andHS and hits the wooden building behind them, whichburns down. Can Stinneford be convicted of arson,which is defined as purposely or knowingly burningdown a building?

. a. Yes

. b. No

. 17 MPC 2.02 hypos #6 Same facts as #1, except thatwhen the arrow hits WE, it gravely injures but doesnot kill him. Can Stinneford be charged withaggravated battery, defined as intentionally causinggrave bodily injury?

. 18 MPC 2.05 When Culpability Requirements AreInapplicable to Violations and to Offenses Definedby Other Statutes; Effect of Absolute Liability inReducing Grade of Offense to Violation.

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a. Yes b. No

.

17 MPC 2.02 hypos #6 Same facts as #1, except thatwhen the arrow hits WE, it gravely injures but doesnot kill him. Can Stinneford be charged withaggravated battery, defined as intentionally causinggrave bodily injury?


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. 18 MPC 2.05 When Culpability Requirements AreInapplicable to Violations and to Offenses Definedby Other Statutes; Effect of Absolute Liability inReducing Grade of Offense to Violation.

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(1) The requirements of culpability prescribed bySections 2.01 and 2.02 do not apply to:

(a) offenses that constitute violations, unless therequirement involved is included in the definition of theoffense or the Court determines that its application isconsistent with effective enforcement of the law definingthe offense; or

(b) offenses defined by statutes other than the Code,insofar as a legislative purpose to impose absolute

liability for such offenses or with respect to any materialelement thereof plainly appears.

19 MPC 2.05(2) Notwithstanding any other provision ofexisting law and

unless a subsequent statute otherwise provides:

(a) when absolute liability is imposed with respect to any

material element of an offense defined by a statute otherthan the Code and a conviction is based upon suchliability, the offense constitutes a violation; and

(b) although absolute liability is imposed by law withrespect to one or more of the material elements of anoffense defined by a statute other than the Code, theculpable commission of the offense may be charged andproved, in which event negligence with respect to suchelements constitutes sufficient culpability and theclassification of the offense and the sentence that maybe imposed therefor upon conviction are determined bySection 1.04 and Article 6 of the Code.

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(a) when absolute liability is imposed with respect to any

material element of an offense defined by a statute otherthan the Code and a conviction is based upon suchliability, the offense constitutes a violation; and

(b) although absolute liability is imposed by law withrespect to one or more of the material elements of anoffense defined by a statute other than the Code, theculpable commission of the offense may be charged andproved, in which event negligence with respect to suchelements constitutes sufficient culpability and theclassification of the offense and the sentence that maybe imposed therefor upon conviction are determined bySection 1.04 and Article 6 of the Code.

. 20 MPC 1.04(5) (5) An offense defined by this Code orby any other statute of this State constitutes aviolation if it is so designated in this Code or in the

law defining the offense or if no other sentence thana fine, or fine and forfeiture or other civil penalty isauthorized upon conviction or if it is defined by astatute other than this Code that now provides thatthe offense shall not constitute a crime. A violationdoes not constitute a crime and conviction of aviolation shall not give rise to any disability or legaldisadvantage based on conviction of a criminaloffense.

. 21 Specific intent crime Larceny: trespassorytaking and carrying away of the personal property ofanother with the intent to steal the property.


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. 22 General intent crime Common law definition ofrape: sexual intercourse by a male with a femalenot his wife, without her consent.

.

23 Hypo #1 Stinneford sees his worst enemy 50 yardsaway. S mistakenly believes that WE is wearing abullet-proof vest, and that S can therefore shoot WEwithout causing WE any harm other than a littlescare. S shoots at WE (who is not wearing a vest)and hits him in the head, killing him instantly. Underthe MODEL PENAL CODE, of what crime can S beconvicted? A. Murder (i.e. purposeful or knowinghomicide) B. Reckless HomicideC. NegligentHomicideD. Assault E. None of the above.

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believes that WE is wearing a bullet-proof vest, and thatS can therefore shoot WE without causing WE any harmother than a little scare. S shoots at WE (who is notwearing a vest) and hits him in the head, killing himinstantly. Under the MODEL PENAL CODE, of whatcrime can S be convicted?

A. Murder (i.e. purposeful or knowing homicide) B.Reckless HomicideC. Negligent HomicideD. AssaultE. None of the above.

. 24 Hypo #2 Same facts as above, except that we are


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in a common law state that applies the legal wrongdoctrine. Of what crime can S be convicted? A.Murder (i.e. purposeful or knowing homicide) B.Reckless HomicideC. Negligent HomicideD.Assault E. None of the above.

. 25 Hypo # 3 Stinneford thinks it would be really cool toown a flamethrower, since theyre not only useful forscaring worst enemies, but can also help startcampfires, barbecues, etc. He has never read (oreven heard of) the federal FlamethrowerRegistration Act, which makes it a felony to

possess an unregistered flamethrower, and so hedoesnt register the flamethrower. Can S beconvicted of violating the act? A. No, because helacks mens rea.B. Yes, because this is a publicwelfare statute.C. Yes, because Stinneford shouldhave been on notice.

. 26 Hypo # 4 Same facts as above, except that thestatute makes it a crime to willfully possess anunregistered flamethrower. Can Stinneford beconvicted? A. No, because he lacks mens rea.B.Yes, because this is a public welfare statute.C.Yes, because Stinneford should have been onnotice.

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27 Review relationships between mens rea andactus reus


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B. Yes, because this is a public welfare statute.C. Yes,because Stinneford should have been on notice.

. 26 Hypo # 4 Same facts as above, except that thestatute makes it a crime to willfully possess anunregistered flamethrower. Can Stinneford beconvicted? A. No, because he lacks mens rea.B.Yes, because this is a public welfare statute.C.Yes, because Stinneford should have been onnotice.

. 27 Review relationships between mens rea andactus reus 1. Strict liability statutes: No mens rearequired. Public welfare Statutory rape 2.Statutes requiring mens rea: mens rea must relateto conduct and/or harm and/or attendantcircumstances. MPC presumption that mens reaapplies to all three. Presumption can be overcome

through statutory construction. 3. Specific intentstatutes. Require additional intent:- to commitsome future act; or- special purpose or motive forcommitting actus reus; or- actual knowledge ofsome attendant circumstance; or- purpose toviolate some known legal duty (willful underfederal law) MISTAKE OF FACT Common LawIf specific intentcrime: mistake that negates thespecific intent element exculpates defendant. Noreasonableness requirement.

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If general intentcrime: mistake must be reasonableinorder to exculpate. If your mistake is unreasonable, youare morally culpable and can be punished.

Moral wrong doctrine: even a reasonable mistake will notexculpate if the conduct you intended to commit isimmoral.

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Legal wrong doctrine: reasonable mistake will not

If specific intentcrime: mistake that negates the specificintent element exculpates defendant. No reasonablenessrequirement.

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If general intentcrime: mistake must be reasonableinorder to exculpate. If your mistake is unreasonable, you

are morally culpable and can be punished.Moral wrong doctrine: even a reasonable mistake will notexculpate if the conduct you intended to commit isimmoral.

Legal wrong doctrine: reasonable mistake will notexculpate if intended conduct constitutes a crime.

.

29 Mistake of Law

Common LawIf general intentcrime, mistake of law will not excuse. If specificintentcrime, mistake of law that negates specificintent will excuse. Statutory construction issue:Where crime is malum prohibitumand involvesinnocent conduct, court may interpret statute as


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requiring sufficient intent to make conduct culpable.May make room for mistake of law defense.Estoppel: See MPC 2.04(3)(b) (applicable inMPC and common law jurisdictions). Fair notice:See Lambertand MPC 2.04(3)(a).

. 30 Model Penal Code 2.04 (1) Ignorance or mistakeas to a matter of fact or law is a defense if: (a) theignorance or mistake negatives the purpose,knowledge, belief, recklessness or negligencerequired to establish a material element of theoffense; or (b) the law provides that the state ofmind established by such ignorance or mistakeconstitutes a defense.

(2) Although ignorance or mistake would otherwise affordadefense to the offense charged, the defense is notavailable if 11 the defendant would be guilty of anotheroffense had thesituation been as he supposed. In suchcase, however, theignorance or mistake of thedefendant shall reduce the grade(a) the ignorance or mistake negatives the purpose,knowledge, belief, recklessness or negligence required toestablish a material element of the offense; or

(b) the law provides that the state of mind established bysuch ignorance or mistake constitutes a defense.

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