First third Flashcards
Sources of criminal law
- Common Law: Judge made law. Came from British system
- Statutes: laws enacted by the legislature (“penal codes”) that define the crime, defenses to crimes, and other relevant doctrines of criminal law
- Model Penal Code: code created in 1950s, completed in 1962 by the American Law Institute. It has a utilitarian basis. Portions of it have become law in many states. Many states have used it to influence their law as well.
Criminal v. Civil:
Main distinction between crim and civil is punishment. Crime is limited to conduct that incurs the moral condemnation of the community. To commit a crime is to commit an act against the community at large.
• The Supreme Court has held that “punishment” cannot come from a civil proceeding. But a law enacted as civil may be recharacterized in the courts as criminal if “there is clear evidence that the primary legislative purpose is retribution and deterrence of wrongdoing”
Utilitarianism
• Punishment justified to the extent that it increases social welfare
• Decisions are made on a cost-benefit analysis—considers what would be a benefit to society.
o Net welfare = Social benefit – Social cost
o The “right” action is the one that results in the greatest net “social good”
• Both crime and punishment are evils b/c they both result in pain to individuals and society as a whole. Therefore, pain of punishment is undesirable unless its infliction is likely to prevent a greater amount of pain in the form of future crime.
Costs of punishment
- Cost to justice system
- Lost contributions to society tht person punished could have made
- Costs to dependents of offender
- Cost to offender himself
• Principles of Utilitarianism- Justifications for punishment
o General Deterrence: Person is punished in order to send a message or set an example to others (society at large or people contemplating criminal conduct)
• Counterargument—Utilitarian’s think of people as moral calculators, but this is not always the case in crimes of passion.
o Specific Deterrence: D is punished in order to deter D from future criminal activity (Stop recidivism). This is done by:
• Incapacitation: incarceration of D prevents him from committing additional crimes in the general community for duration of his sentence) and/or by
• Intimidation: D’s punishment serves as a painful reminder so when he is released he is deterred from future criminal conduct
• Counterargument—some people may not believe they will get caught. Crimes might shift from society to prison guards
o Rehabilitation: Punishment designed to “reform” prevent future crime by reforming an individual by providing him with employment skills, psychological treatment, etc. so that he will not want or need to commit future offenses
Retributivism (Kant)
– Punishment justified to the extent that it is deserved (proportional to the offense)
• Punishment of D justified as a deserved response to wrongdoing.
o Punish b/c of the wrongdoing-criminal gets his just deserts-regardless of whether such punishment will deter future crime.
o Punish people as much as they deserved to be punished; Must be proportional
• Wrong-doing creates a moral disequilibrium in society: wrongdoer obtains the benefits of the law (other people have respected his rights) but he does not accept the law’s burdens (respecting others’ rights).
• He breaks the social contract when he commits a crime and must pay his debt if he wants to return to society
o Punishment restores moral balance
o One who commits a crime is sending an implicit message to the victim that the wrongdoer’s rights are more important than the victim.
o Punishment is another way of showing the criminal and the victim that this message was wrong. Punishment that is proportional to the offense brings the criminal down to his proper place in relation to others.
• Proportionality—punishment should be proportional to the offense and harm caused; consider the actor’s degree of culpability for causing harm
• Just deserts—punishment of a wrongdoer is justified as a deserved response to a wrongdoing. Regardless of deterrence, it is backward looking.
o Counterclaim:
• What is the point of punishing someone if it does not do anything for society?
• Policies are based on anger and emotion rather than reason.
• Response—anger is good if it is directed at the wrongdoer.
DISTINGUISHING BETWEEN MPC AND CL
There are two different types of criminal jurisdictions in the United States: common law-based and Model Penal Code-based.
- American criminal law is historically common law – judge-created and developed on a case-by-case basis.
o Often inconsistent, incomplete, and redundant. In the 20th century, many states recognized the need to reform and codify their systems of criminal law.
- American Law Institute (ALI) began work in 1952 on development of a model code of criminal statutes. In 1962, the ALI adopted and published the Model Penal Code.
o MPC had a great influence on reforming criminal law. Many states use as guidance in reforming/updating statutory systems, but none have adopted in its entirety
DISTINGUISHING BETWEEN MPC AND CL
There are two different types of criminal jurisdictions in the United States: common law-based and Model Penal Code-based.
- American criminal law is historically common law – judge-created and developed on a case-by-case basis.
o Often inconsistent, incomplete, and redundant. In the 20th century, many states recognized the need to reform and codify their systems of criminal law.
- American Law Institute (ALI) began work in 1952 on development of a model code of criminal statutes. In 1962, the ALI adopted and published the Model Penal Code.
o MPC had a great influence on reforming criminal law. Many states use as guidance in reforming/updating statutory systems, but none have adopted in its entirety
How do you know CL?
- Discuss actus reus and mens rea, don’t mention statutes, etc.
- All federal cases are common law, and no case before 1962 is an MPC case!
How do you know MPC?
- Refer to statutes constructed similarly to MPC sections, talk about attendant circumstances, etc.
- Sometimes it’s straightforward, the judge will specifically say that the state’s penal code is based on the MPC (usually when the judge is about to do something that the law doesn’t really allow).
Common Law elements of an offoense
Actus reus Mens Conduct Result Attendant circumstance
MPC Elements of an offense
- 13(9) Element of an offense—
(1) Conduct: Law prohibiting a specific behavior
a. Action or omission and
b. Accompanying state of mind (Mens Rea)
(2) Culpability Requirement
(3) Attendant Circumstances: circumstances that must be present in order for the offense to be possible
(4) Result: things that contingently follow from what you do
(5) All of which establish:
a. A kind of culpability, or
b. Negatives an excuse for justification of such conduct, or
c. Negatives a defense under the statute of limitations, or
d. Establishes jurisdiction or venue
Most crimes need
MOST CRIMES NEED BOTH. “A person is not guilty of an offense unless her conduct is voluntary, accompanied by the mens rea of the offense, and the conduct constitutes, or is the actual and proximate cause, of the state of affairs proscribed by the offense.” (strict liability exception)
Actus reues elemtnes
a. “Guilty Act”
b. Physical or external part of the crime
c. three elements:
i. Voluntary act or legal omission
ii. Which causes
iii. Social harm (people are not punished for conduct, but for conduct that results in “social harm”)
d. Physical aspect of a result includes:
i. Conduct (sometimes you don’t need result: drunk driving; speeding)
ii. Conduct + Result
iii. Attendant circumstances
e. Act which is not voluntary is not an “act” for purposes of actus reus
MPC crimes must be proven
§ 1.12—Proof Beyond Reasonable Doubt, Affirmative Defenses, Presumptions
• Each element must be proved beyond reasonable doubt to convict
• When prosecution makes a presumption about a fact
o Proof of existence submitted to jury for decision
o Jury may use sufficient evidence to give rise to a presumed fact
What is a result crime?
Result Crimes – must have SI to bring about the result of the result crime.
- Example- If D blindfolds herself and shoots a gun into a room that she knows is occupied and kills somebody, she may be convicted of murder
- However- If D’s reckless act does not kill anyone, she is not guilty of attempted murder b/c she lacked the specific intent to kill someone in the room
Waht is a conduct crime?
SI to engage in the conduct (actus reus) of the offense.
Actus Reus
Guilty act
Waht does AR consist of ?
Actus Reus of an offense usually consists of: 1. A voluntary act 2. That causes 3. Social harm.
Most definitions include a conduct and result
Dillof: Act done with a purpose. Mere thoughts ≠ punishable as crimes; involuntary acts ≠ liable. Moral obligation doesn’t nec. create legal duty; if they do not there is no duty to act/omit
AR Rule, a person is generally not guilty of a criminal defense unless
unless his conduct includes a voluntary act. Ie carried out voluntarily
o See: Martin v. State, p. 128 (D dragged out to street by cops while drunk, charged w/ being drunk on public highway).
o MPC § 2.01(1): “A person is not guilty unless his liability is based on conduct which includes a voluntary act or omission to perform act of which he is physically capable.”
- D can be liable for an omission if it is a breach of a duty to act. Otherwise, there is no general duty to act to prevent harm to others.
waht is a voluntary act under CL
a willed muscular contraction or bodily movement; controlled by actor’s mind. Done with a purpose.
• An act involves physical, although not necessarily visible, behavior
• Excludes the mental process of thinking about or developing an intention to do an action.
• Voluntary includes a will or violation, a voluntary act includes the human brain
State v. Utter —VOLUNTARY ACT/EMBEDDED INVOLUNTARINESS
D stabbed his son to death after drinking all day but had no recollection of his act. D argued autonomic response. Held: when the state of unconsciousness is voluntarily induced through the use of drugs or alcohol, the state of consciousness is not a complete defense.
• The burden of proof to show will/involuntariness—the prosecutor, beyond a reasonable doubt. Prosecutor MUST prove the voluntariness of an act.
Involuntary act?
Reflex actions, Seizures, Convulsions, Acts occurring while person is unconscious/asleep, Hypnotic State.
Voluntary: MPC § 2.01(1): 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 and has a legal duty]