Criminal law prima facie case

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CRIMINAL LAW




PRIMA FACIE CASE
Four main elements for criminal liability

  • The voluntary criminal act (actus reus)

  • The criminal state of mind (mens rea)

  • Concurrence between actus reus and mens rea (result doesn’t matter)

  • Causation of harm

  • The absence of a defense of justification or excuse


OVERVIEW
A. Sources of Criminal Law

1. Common Law: In English common law, originally there were seven common law felonies (mayhem, homicide, rape, larceny, burglary, arson, and robbery) (EE, pg. 2) but in modern American law, all felonies have been adopted by the legislatures



  • Pros - Allows courts to punish harmful behavior; Discourages exploitation of loopholes

  • Cons - Defendant doesn’t know ahead of time (i.e., If I had known it was a crime...); Potential for abuse of judicial power

2. Statutes: Laws made by the legislature

3. Constitutional Law: The Constitution can protect the rights of defendants and minority viewpoints and can limit the legislature’s ability to pass certain laws

B. Types of Crimes

1. Result crimes = Usually have a result evidencing the crime (e.g., dead body)

2. Conduct crimes = Crimes where the attendant circumstances make it criminal (e.g., drunk in public: it's okay to be drunk at home, it's okay to be out in public, but being in public with the attendant circumstance of being drunk is a conduct crime)

3. Felony = All crimes punishable by death or imprisonment exceeding one year (BarBri, pg. 3)

4. Misdemeanor = Crimes punishable by imprisonment for less than one year or by a fine only (BarBri, pg. 3)


STATUTES & PRINCIPLES OF INTERPRETATION
A. Maxims of Statute Interpretation - principles used when interpreting statutes

1. Principle of Legality

a. Prohibits punishment where there is no law

b. Nullum crimen, nulla poena, sine lege: There is no crime without law, no punishment without law

c. Rationale: People must have fair notice of what behavior is criminal, so that they can decide whether or not to engage in the conduct (thus satisfying the mens rea element). The principle of legality means that before a person can be convicted and punished for engaging in a given conduct, the conduct must have been legislatively prohibited at the time that the person engaged in the conduct. (EE, pg. 5)


      • To prevent the government from tyrannizing its enemies by enacting vindictive, retroactive criminal legislation.

      • It furthers individual autonomy and maximizes the opportunity of individuals to pursue their own purposes and ends by reducing the risk that a person’s lawful conduct will be punished retroactively.

      • Justified in fair notice grounds.

d. Commonwealth v. Mochan, Penn. 1955 (CB, pg. 88) - Obscene and harassing phone calls



      • Issue: Whether the alleged crime could be prosecuted and the offenders punished under common law?

      • Rule: "Whatever openly outrages decency and is injurious to public morals is a misdemeanor at common law." (CB, pg. 89)

      • Holding: The harassing phone calls constitute a common law misdemeanor.

      • Court Order: Affirmed trial court's judgment and sentencing.
      • Dissent: Disagrees w/ majority b/c the court overstepped the legislature's role in defining a new crime. Says that the defendant didn't have fair warning that his conduct was criminal. Worries that declaring anything that could potentially injure public morality as "criminal" could vastly expand the types of conduct that courts find to be criminal.

e. Keeler v. Superior Court of Amador County, Cal. 1970 (CB, pg. 91) - “I intended to kill my ex-wife's fetus, I just didn't think it was murder."



      • The defendant hit his ex-wife's pregnant abdomen. The baby was delivered stillborn. D was charged murder. Penal Code Section 187 “Murder is the unlawful killing of a human being with malice aforethought.”

      • Issue: Whether the unborn fetus, which may have been viable with modern medicine, is a human being for purposes of sustaining a murder charge?

      • Holding: The viable fetus is not a human being.

      • Reasoning:

        • At common law, the human being does not include fetus.

        • Rule of strict construction

        • Fair warning

      • Amendment aftermath: fetus was added into the definition of murder.

  • There are three interrelated corollaries to the legality principle:

      • Criminal statutes should be understandable to reasonable law-abiding persons. (Void-for-vagueness doctrine)

      • Criminal statutes should be crafted as not to delegate basic policy matters to policemen, judges and juries for resolution on an ad hoc and subjective basis. (Void-for-vagueness doctrine)

        • It minimizes judicial crime-making (i.e., common law crimes), in favor of legislative law-making and crime-making.

      • Judicial interpretation of ambiguous statutes should be biased in favor of the accused (Lenity doctrine).

2. Void-for-Vagueness Doctrine

a. Based on 5th Amendment with respect to federal statutes and on 14th Amendment (Due Process Clause) with respect to state statutes

b. Provides fair notice of what conduct is criminal

c. Laws that are so vague that ordinary people cannot reasonably determine what they mean OR which give law enforcement excessive discretion to arrest or prosecute


      • A penal statute defines the criminal offense with sufficient definiteness that ordinary people can understand what conduct is prohibited and in a manner that does not encourage arbitrary and discriminatory enforcement.

  • Rationales of the vagueness doctrine

      • First, it fails to give adequate notice of what is prohibited. The lack of fair warning is a recurrent theme in vagueness decisions.

        • But it is fictive that other laws provide effective notice; ordinary people have no access to the statute or counsel. Also the precision required of a penal statute need not appear on its face.

      • Second, an indefinite law invites arbitrary and discriminatory enforcement

        • But virtually any law allows arbitrary enforcement

3. Rule of Lenity

a. Resolves ambiguity in laws in favor of defendant

b. Not expressly adopted by MPC (EE, pg. 9)

c. Historically, two basic ways to apply the rule:



      • If there are two or more ways to interpret the statute, pick the one that favors the D as the statute language and the circumstances of its application may reasonably permit.

      • Only after exhausting other interpretation tools and it is still ambiguous, the rule of strict construction then applies.

      • Most modern courts use it in the second way.

4. Ex Post Facto Laws (from Constitution)

a. Prohibits retroactive criminalization (i.e., prosecuting someone for conduct which was legal at the time but was criminalized later) and retroactive punishments

b. Prohibits retroactive application of statutes that criminalize previously legal conduct OR that increase severity of the crime or the punishment

  • The ex post facto prohibition is expressly limited to legislature; but concern that due process prohibits such judicial construction of criminal statutes and respect for the separation of powers has influenced courts to avoid such interpretation. Bouie


  • Rationale: the constitutional restraint ensures that the legislature gives fair warning of criminal conduct and its consequences.

c. Keeler - although California legislature added the term "fetus" to the murder rule, Keeler could not have been prosecuted afterwards b/c to do so would violate the ex post facto principle.

5. Proportionality

a. Punishment must be proportionate to the crime, although lex talionis punishments (eye for an eye) are not necessarily feasible or constitutional

6. Presumption of Innocence

a. State must overcome presumption of innocence beyond a reasonable doubt

b. Owens v. State


Owens v. State, (Maryland Court of Special Appeals, 1992), pg. 13

Drunk Driver v. State



  1. Issue: Is a conviction based only on circumstantial evidence sufficient enough to be sustained?

    1. Issue is of legal sufficiency of circumstantial evidence

  2. Holding: A conviction based entirely on circumstantial evidence cannot be sustained unless the circumstances are inconsistent with any reasonable hypothesis of innocence.

  3. Procedural History: D appealed DUI conviction. Court affirmed and upheld conviction.

  4. Facts:

    1. D was found asleep behind the wheel of a vehicle parked on a private driveway (not D’s driveway) at night with the lights on and the motor running.

    2. D was intoxicated and empty beer cans were inside the vehicle.

    3. D was parked in someone else’s driveway, which supported the theory that D had driven to the driveway from elsewhere.
  5. Rule: A conviction based on circumstantial evidence alone is not to be sustained unless the circumstances are inconsistent with any reasonable hypothesis of innocence.


  6. Rationale:

    1. The conviction was based entirely on circumstantial evidence.

    2. There were two interferences about how the vehicle got to the driveway:

    3. The driver and vehicle arrived at the driveway from somewhere else (this plus the fact that D was drunk supports the drunk driving conviction); OR

    4. The driver had just gotten into the vehicle and was about to depart somewhere.

    5. Court looked at the totality of the circumstances and decided that there was no reasonable inference supporting D’s claim of innocence.

B. Approaches to Statutory Interpretation - How do courts interpret and apply statutes?

1. Purpose - What goals was the legislature trying to accomplish? Tries to discern the legislative intent by looking at policy and at legislative history

2. Textual Analysis - Looks at the words used, the words not used, and the grammatical construction

3. Precedent - Considers whether preceding cases are sufficiently similar to the present case as to be applicable

4. United States v. Foster – What does it mean to carry a gun?
United States v. Foster, (U.S. Court of Appeals, 9th Cir., 1998), pg. 116

Federal govt v. Drug trafficker



  1. Issue: In order for a defendant who was in a vehicle to be convicted of “carrying” a gun, must the gun be within hand’s reach while the car was in motion?

    1. What does it mean to “carry” a gun?

  2. Holding: Yes, in order to be convicted of “carrying” a gun, the weapon must have been within hand’s reach while the car was in motion.
  3. Procedural History: D appealed a conviction for carrying a firearm while drug trafficking. D was convicted of drug trafficking and given a longer sentence b/c of § 924(c)(1)’s sentence enhancement provision. Court reversed.


  4. Facts:

    1. D was driving in his pickup truck when the police pulled him over and arrested him.

    2. D had a load semiautomatic weapon and methamphetamines in the truck bed.

  5. Rules:

    1. 18 U.S.C. § 924(c)(1) applied a sentence enhancement to anyone who “uses or carries a firearm” during the commission of a violent crime or while trafficking drugs.

    2. Rule of Lenity - Doctrine that where a statute is ambiguous as the term of punishment imposed, then it should be construed in favor of the less severe (more lenient) punishment.

  6. Rationale:

    1. Judge Kozinski reasoned that the key aspect of “carry” is not that the weapon be actually carried upon the person, but that it was in easy reach and could quickly be put to use.

    2. Applies the rule of lenity - “Where a criminal law is ambiguous, we are wary of imposing criminal liability for conduct that the law does not clearly prohibit.” (CB, pg. 119)

    3. Argues that if the legislature wanted the courts to impose the higher sentence, then the legislature could re-write the law and clarify.

  7. Dissent: Dissent argues that the majority’s argument is an exercise in legal semantics. The dissent reasoned that the law penalized people who transported weapons by car or truck; the fact that the gun was not in D’s immediate reach was irrelevant to the spirit of the law.


The Queen v. Dudley & Stephens, (Queen’s Bench Division, 1884), pg. 48

Queen v. Castaways who killed and ate a fellow crew member while stranded at sea


  1. Issue: Is necessity a valid excuse for killing an innocent person?


  2. Holding: No, an innocent person may not be killed in order to save the life of another. Necessity is a defense only when the killer has been assaulted or endangered by the victim; extreme hunger does not necessitate killing an innocent person.

  3. Procedural History: Appeal of jury’s verdict finding Defendants guilty of murder. Court affirmed. The sentence was later commuted by the crown to six months’ imprisonment.

  4. Facts:

    1. Dudley & Stevens were cast away during a storm from their ship on the high seas 1600 miles from the Cape of Good Hope.

    2. They were on an open boat with two other people, Brooks and Foster, without any water and a very limited supply of food for about three weeks.

    3. Foster was very sick, and likely near death anyway.

    4. Dudley, Stephens, & Brooks discussed whether they should kill and eat Foster, since he likely would have died anyway, and that if they didn’t, then they would all die by the time Foster died naturally. Nobody consulted Foster.

    5. Brooks didn’t consent to killing Foster, but Dudley & Stephens killed Foster. All three survivors ate the boy.

    6. They were rescued four days later and Dudley & Stephens were charged with murder.

  5. Rule: Homicide may not be excused when the person killed is an innocent victim.

  6. Rationale:

    1. Don’t want to encourage killing of innocent people, even in hard times.



THE PURPOSES OF PUNISHMENT

A. Why do we punish people? What is the rationale for different sentences and punishments for different crimes and for different defendants?

B. Punishment = Suffering that is (1) purposely inflicted (2) by the state (3)b/c one of the state’s laws was violated (EE, pg. 19)

C. Utilitarian - Society should take a cost-benefit approach when deciding whether and how to punish people convicted of crimes

1. Approaches include general deterrence and specific deterrence


  • Utilitarian premise:

      • Society has the right to take measures to protect its members.

      • Criminals are rational calculators

  • Criticism: You punish criminal more than what they deserve.

D. Retributivist - Society should only punish people who are morally blameworthy

      • Violation of law has to be punished; to show seriousness; otherwise everyone will play the rules

      • Some common sharing sense; culpable

      • Voluntary choice of the society

  • Blameworthy

      • Criticism: how does the punishment makes up for wrongs inflicted on the society?

  • Proportionality

      • Criticism: ambiguity

E. Purposes of Punishment - The purpose of punishment is important to shape your arguments in cases, especially in borderline cases.

1. General Deterrence - Discourages others from engaging in similar conduct

2. Specific Deterrence - Discourages the defendant from repeating the crime

3. Rehabilitation - “Cures” the defendant; Allows defendant to re-enter society

4. Incapacitation - Defendant no longer able to commit more crimes; makes society feel safer
The Queen v. Dudley & Stephens, (Queen’s Bench Division, 1884), pg. 48

Queen v. Castaways who killed and ate a fellow crew member while stranded at sea



  1. Issue: Is necessity a valid excuse for killing an innocent person?
  2. Holding: No, an innocent person may not be killed in order to save the life of another. Necessity is a defense only when the killer has been assaulted or endangered by the victim; extreme hunger does not necessitate killing an innocent person.


  3. Procedural History: Appeal of jury’s verdict finding Defendants guilty of murder. Court affirmed. The crown later commuted the sentence to six months’ imprisonment.

  4. Facts: Dudley & Stevens were cast away during a storm from their ship on the high seas 1600 miles from the Cape of Good Hope.

    1. They were on an open boat with two other people, Brooks and Foster, without any water and a very limited supply of food for about three weeks.

    2. Foster was very sick, and likely near death anyway.

    3. Dudley, Stephens, & Brooks discussed whether they should kill and eat Foster, since he likely would have died anyway, and that if they didn’t, then they would all die by the time Foster died naturally. Nobody consulted Foster.

    4. Brooks didn’t consent to killing Foster, but Dudley & Stephens killed Foster. All three survivors ate the boy.

    5. They were rescued four days later and Dudley & Stephens were charged with murder.

  5. Rule: Homicide may not be excused when the person killed is an innocent victim.

  6. Rationale: Don’t want to encourage killing of innocent people, even in hard times.


People v. Du, (Superior Court, L.A. County, 1991), pg. 53 and People v. Superior Court (Du), (California Court of Appeal, 2nd District, 1992), pg. 50

State v. Convicted manslaughterer

State v. Lower court


  1. Issue: In determining whether D should be put on probation, must the court consider the unusual circumstances of the case, such as provocation?
    1. Factors to consider when imposing punishment; Rationale for punishment


  2. Holding: Yes, the court must consider unusual circumstances when determining punishment.

  3. Procedural History: Du was convicted of manslaughter and sentences to ten years’ imprisonment. The trial court suspended the sentence. The prosecution appealed the suspension. A probation officer recommended that Du be sentenced to state prison, even though Du was unlikely to pose a threat to society.

  4. Facts: The Du family owned a convenience shop in a bad part of L.A. where they had lots of problems with gang, burglary, and shoplifting.

    1. The gangs had threatened the Du family’s son, so his mother (Du) was running the shop on the day the shooting occurred

    2. Du, a Korean convenience shop owner, shot to death Latasha Harlins, a 15 year old African American girl, who Du believed was trying to shoplift.

    3. Du confronted Latasha, who punched Du in the face twice.

    4. Du had no criminal history and believed she was acting in self-defense.

    5. The trial court imposed a lighter sentence, reasoning that Du was unlikely to pose any threat to society; there was public outcry, claiming that court imposed a lighter sentence b/c the victim was black and that the court valued black lives less than other murder victims.

  5. Rule: What factors should be considered in punishing a defendant?

    1. “In imposing [a] sentence, I must first consider the objectives of sentencing a defendant: (CB, pg. 54)

      1. To protect society;

      2. To punish the defendant for committing a crime

      3. To encourage the defendant to lead a law-abiding life

      4. To deter others
      5. To isolate the defendant so she can’t commit other crimes


      6. To secure restitution for the victim

      7. To seek uniformity in sentencing

  6. Rationale: The trial court judge reasoned that none of these objectives would be met by imprisoning Du.


United States v. Gementera, (U.S. Court of Appeals, 9th Cir., 2004), pg. 59

Federal govt v. Convicted mail thief



  1. Issue: Is requiring a convicted mail thief to stand outside of a post office while wearing a sign saying, “I stole mail. This is my punishment.” reasonably related to the legitimate statutory objective of rehabilitation?

  2. Whether punishment reasonably relates to objectives of sentencing guidelines

  3. Holding: Yes, “the condition imposed on D was reasonably related to the legitimate statutory objective of rehabilitation.” (CB, pg. 64)

  4. Procedural History: D was convicted of stealing mail. As part of his sentence, judge required him to wear a sign and stand outside of post office. D appealed, arguing that condition was imposed for impermissible purpose of humiliation. 9th Circuit affirmed.

  5. Facts: D stole mail from several mailboxes on Fulton Street in San Francisco. Although only 24 years old, he had a growing rap sheet.

  6. Rule: The statute required that “any condition [of punishment must] reasonably related to a legitimate statutory purpose. Two-prong test:

    1. The court must determine whether the sentencing judge imposed the conditions for permissible purposes, and

    2. The court must determine whether the conditions are reasonably related to the purposes.
  7. Rationale:


    1. “Mail theft is an anonymous crime...the court aimed to break the defendant of the illusion that his theft was victimless or not serious...The humiliation or shame he experiences...should have a specific rehabilitative effect on defendant that could not be accomplished by other means.” (CB, pg. 61)

  8. Dissent: Dissent argued that the shaming punishment was intended only to humiliate D and would not rehabilitate him or deter him from future crimes. “When one shames other person, the goal is to degrade the object of shame, to dehumanize him.”

F. Jury Nullification - When jury decides that D is guilty but chooses to set aside the law and not convict


State v. Ragland, (Supreme Court of New Jersey, 1986), pg. 19

State v. Convicted Felon



  1. Issue: Is the power of the jury to acquit, despite overwhelming proof of guilt and the jury’s belief, beyond a reasonable doubt, that D is guilty, one of the essential attributes of the right to trial by jury? Issue is about jury nullification

  2. Holding: No, the power of the jury to acquit, despite overwhelming proof of guilt and the jury’s belief that D was guilty (i.e., jury nullification), is not an essential attribute of the right to trial by jury.

  3. Procedural History: D was convicted for armed robbery. D appealed, arguing that the trial court judge should have not have told the jury that they “must find him guilty” if they found that the facts supported the charge of possessing a weapon during a felony. D argued the judge should have told the jury that they had the power of nullification. Reversed on other grounds.
  4. Facts: The trial court judge instructed the jury that if they found that D was in possession of a weapon during the commission of the robbery, then they “must” find D guilty.


  5. Rule: Telling the jury that it has the right to nullify the law (i.e., acquit despite guilt) is not mandated by the Constitution, common law, or statute.

  6. Rationale: Court reasoned that juries had the power of nullification, not the right to nullification.

    1. Court applied public policy rationale, saying that jury nullification, although unavoidable, was undesirable, because it undermines fair application of law, and that telling the jury about jury nullification basically advertises that the jury is “free to ignore the law.” (CB, pg. 21)

    2. Proponents of jury nullification say it allows the jury to act as the “conscience of the community” by refusing to apply unfair laws. (CB, pg. 20)



ACTUS REUS


  1. Actus Reus of an offense consists of 1) a voluntary 2) act 3) that causes 4) social harm.

  2. Voluntary Act Requirement

    1. Prosecutors often use a person’s actus reus in proving D’s mental state (mens rea) because human conduct is generally the product of mental processes. [EE p 38]

    2. No legal requirement to act, just moral obligation. However, some states have enacted Good Samaritan statutes that make it a criminal offense to refuse to help those known to be in serious peril when aid could be provided without danger.

    3. No criminal liability for thoughts. (p 127, Note 2)

    4. Criminal liability must be based on voluntary acts.
      1. Martin v. State, p.127: Cops arrested Martin at his home and took him onto the highway where he allegedly manifested a drunken condition by using loud and profane language. D was convicted of being drunk on a public highway. Issue is whether D’s appearance in public must be voluntary. Rule: a voluntary appearance is presupposed in the crime of being drunk on a public highway. Holding: forced appearance in a designated public place with drunken characters is not a crime under the statute.


        1. Two elements for the statute:

          1. Appear in a public place

          2. Manifest a drunken condition

        2. Legal principle: must be a voluntary act in order for there to be criminal liability.

          1. He got voluntarily drunk, but did not voluntarily appear in public. Court says “a voluntary appearance is presupposed.”

        3. Retributive justification: criminal punishment is reserved for people who are morally blameworthy.

        4. What could a prosecutor do under the Decina decision?

          1. Try to argue that it is a foreseeable drunkenness. Move back in the time chain, and then it was voluntary act at some point. Also show the link between his voluntary act and the consequences.

          2. Drunken driving is voluntary even though the DUI is not voluntary under the normal definition. Drunkenness is not an excuse for most acts.

  3. Voluntariness:

    1. MPC § 1.13(2) defines an act or action as “a bodily movement whether voluntary or involuntary.”

    2. MPC § 2.01(1) a person is not guilty of a crime unless “his liability is based on conduct that includes a voluntary act or the omission to perform an act of which he is physically capable.”

    3. It must result from an exercise of will. Consciousness is the minimum requirement.

      1. General rule: if a person acts while unconscious or physically unable to control their actions, the action is considered involuntary, and hence not a "bad act" for purposes of criminal law.

        1. MPC § 2.01(a) not voluntary acts:

          1. Reflex or convulsion

          2. A bodily movement during unconsciousness or sleep
          3. Conduct during hypnosis or resulting from hypnotic suggestions


          4. Bodily movement that otherwise is not the product of the effort or determination of the actor, either conscious or habitual.

          5. Utter (p 129): WW2 vet stabs and kills his son while extremely drunk. Claims it was a conditioned, unconscious response to someone coming up from behind him resulting from his experiences in jungle warfare and thus, not a voluntary act.

            1. Issue: What is the meaning of the word “act” and is it a valid defense to say that a response was “conditioned” (differs from the irresistible impulse theory of criminal insanity that has been rejected in this state) and thus, involuntary.

            2. Rule: An act must be a willed movement or the omission of a possible and legally-required performance. This is essential to the actus reus rather than the mens rea. A spasm is not an act.

            3. Rule: The absence of consciousness not only precludes the existence of any specific mental state, but also excludes the possibility of a voluntary act without which there can be no criminal liability.

            4. Holding: Court says an unconscious or automatistic state at the time of the act is a valid defense, but it is an issue of fact and should be submitted to a jury unless there is not enough evidence to support it. Here, there is not enough evidence for the jury to determine or reasonably infer what happened in the room at the time of the stabbing and whether a triggering stimulus existed, so D’s conditioned response defense will not go to jury.

            5. Differs from Martin because Martin’s involuntariness was forced by third party.

      2. Even if act is done under duress, still considered voluntary. Must rely on defenses to avoid penalty. [EE 39]
      3. Self-induced state: A voluntary act is not rendered involuntary simply because it may include an involuntary act or because it had unintended consequences (if a gun goes off and kills someone while you are waving it around, the actus reus of waving it around satisfies actus reus) EE p 47 problem 1b.


    4. Exception: sometimes the law ignores that the act itself is not voluntary. The law traces back to the prior voluntary action. E.g. drunken driving

      1. Special rule for drinking and drug intake: if a person knowingly and voluntarily consumes alcohol or drugs, the law assumes that their later actions are voluntary, even if they are so drunk/high that they have lost consciousness.

    5. People v. Decina, p.133 Note 6: involuntary act in a voluntary course of conduct

      1. Holding: The indictment for “operating a vehicle in a reckless or culpably negligent manner, causing the death of four persons” was sustained.

      2. Rule: the admittedly involuntary character of the seizure did not vitiate the D’s responsibility for his voluntary acts prior to losing consciousness. He knew that he might lose consciousness. The earlier voluntary act of getting into the car and driving it satisfies the voluntary act element of the crime. If he did not know that he was subject to epileptic seizures, he would not be guilty.

      3. “Who operates or drives any vehicle of any kind in a reckless or culpably negligent manner.” Did Decina really drive in a reckless or culpably negligent manner? It is debatable despite the holding. Whether his choice to drive is the offense itself (driving recklessly) is a question of statutory construction. Under Decina, it was reckless if he had prior knowledge.

      4. Compare to Utter. If Utter’s alleged conditioned response were known to be related to his drinking, his voluntary act of drinking with knowledge that it brings on the conditioned response could be considered reckless.

    6. Involuntary crime?
      1. Voluntary manslaughter includes killing in heat of passion or while committing a felony.


      2. Involuntary manslaughter occurs when a death is caused by a violation of a non-felony, such as reckless driving (called “vehicular manslaughter”).

    7. Constitutionalizing voluntariness?

      1. Robinson v. CA: [Not in our reading]

        1. The Court ruled that convicting someone for being addicted to the use of narcotics violated the 8th Am guarantee against cruel and unusual punishment.

        2. Expansion: the state cannot criminalize mere status or condition (i.e. drug addiction).

      2. Powell v. Texas: [Not in our reading]

        1. The Court sustained a prosecution for intoxication in a public place.

        2. Mathieson: you can almost always find a conduct in a status.

      3. Justice Marshall: the federal Con goes only a very small way into the substantive criminal law. Notions of voluntariness are left to the state legislatures.

    8. How do you evaluate the requirement of voluntariness?

      1. Involuntary acts = those over which individual has no conscious control.

        1. Missing the minimum link between mind and body

        2. Physically coerced movement

        3. Reflex movements

        4. Muscular contraction or paralysis produced by disease

        5. Unconsciousness

  4. Omission

    1. Omission is a crime only when there is a duty to act and the party is capable of doing the legally required act, but fails to do so.

      1. Presumption = Courts are reluctant to impose liability for failure to act.

    2. The duty can arise from; Jones v. US [p 137 Note 2, EE 40]

      1. Statute imposes a duty
        1. MPC § 2.01(3)(a) and (b)


          1. A statute (i.e. defines failure to file tax return as “voluntary act,” not omission)

          2. Duty imposed by civil law (i.e. special relationship)

      2. Special relationship/Duty to control conduct of another

      3. Where one has assumed a contractual relationship (i.e. lifeguard)

        1. Very rare criminal conviction on this

        2. Contractual obligation to take care of kids

      4. Undertaking: One has voluntarily assumed the care of another and so secluded the helpless person as to prevent others from rendering aid.

      5. Creation of peril

      6. Landowner (theatre owner must provide reasonable exits for patrons)

    3. In some states, like TX, the duty can only come from the statute.

      1. Billingslea v. State, 1989 (not in our reading)

        1. The son neglected to take care of his mother, resulting in serious injury to his mother’s health. The trial court convicted him and sentenced him for 99 years jail for injury to an elderly individual; the court of appeal reversed. Holding: not guilty; no statutory obligation to take care of his mother in TX.

    4. Failure to summon medical assistance for drug overdose

      1. People v. Beardsley, 1907, p 134:

        1. Beardsley and woman drank steadily for two days. The woman takes morphine in an apparent suicide attempt. Beardsley did not rescue her, had kid take her down to neighbor’s basement and she died. The trial court convicted him of manslaughter for failure to render reasonable care but the Michigan S.Ct. reversed.
        2. Issue: Is there a legal duty to act? Whether D was under a legal duty towards victim at the time of her death, knowing her to be in peril of her life, which required him to make all reasonable and proper effort to save her, the omission to perform which duty would make him responsible for her death.


        3. Rule: under some circumstances the omission of a duty owed by one individual to another, where such omission results in the death of the one to whom the duty is owing, will make the other chargeable with manslaughter.

        4. Rule: No such legal duty is created based on mere moral obligation.

        5. Holding: Here, it was a mere moral obligation. The fact that this woman was in D’s house created no such legal duty as exists in law. D had assumed no care or control over his companion either by fact or implication. If they were husband and wife, then the husband had the legal duty to rescue her.

  5. Distinguishing Actions from Omissions

    1. The key is how to characterize the facts.

    2. Omission of life-sustaining treatment

      1. Barber v. Superior Court (p 140)

        1. After consultation with the patient’s family, the D removed the life-sustaining equipment from the patient who was in permanent vegetative state. D was prosecuted for murder and conspiracy to commit murder. The CA court of appeals relied on the distinction between omission and act in throwing out the criminal complaint.

        2. Issue 1: whether D’s conduct amounted to an “unlawful killing.”

        3. Rule/Holding: the cessation of heroic life support measures is not an affirmative act but rather a withdrawal or omission of further treatment. It is more like withholding injection into patient’s body.

        4. Issue 2: Then the critical question is whether the D had a duty to continue to provide life sustaining treatment.
        5. Rule: There is no criminal liability for failure to act unless there is a legal duty to act. A physician has no duty to continue treatment, once it has proved to be ineffective. Doctors have only duty of due care; here it requires extraordinary care.


        6. Holding: D’s omission to continue treatment under the circumstances, though intentional and with knowledge that the patient would die, was not an unlawful failure to perform a legal duty.

        7. Do you think it is an omission?

          1. Public policy to protect doctors

          2. Also respect the patient’s or his family’s will. Had consent.

        8. If a stranger comes in and does the same thing, it would be an act. How to distinguish Barber?

          1. Intent element

          2. Consent by patient or his family

          3. For doctors, cessation of some continuing action; for a stranger it is interference with something.

  6. Possession as an Act

    1. MPC § 2.01(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.” Can’t be guilty of possession if you didn’t know it was there. (p 133 Note 7)

    2. Possession is widely employed as a basis of criminal liability.

      1. It is kind of odd that it is a crime since the actor does not do anything. But the legislature opts for that.

      2. It can be evidence for other crimes.

    3. Possession may be thought of as a status that begins with the act of acquisition and that is continued by a failure to divest. Alternatively, it may be viewed simply as an indirect way of proving the act of acquisition.

Summary of Actus Reus (see Crunchtime flow chart p 3)
  • First step: voluntary act: whether it is voluntary


  • Exception: involuntary act in a voluntary course of conduct

      • People v. Decina: He knew that he might lose his consciousness. The earlier voluntary act of getting into the car and driving it satisfies the voluntary act element of the crime.

  • the state cannot criminalize the status

      • Convicting someone for being addicted to the use of narcotics violated the 8th Am guarantee against cruel and unusual punishment.

      • You can interpret a status to an act.

  • Second step: whether Omission is an act

  • Omission is a crime only when there is a duty to act and the party fails to do.

      • People v. Beardsley: failure to summon medical assistance; no duty

      • Barber v. Superior Court: Omission of life-sustaining treatment

  • Interpret act under the legality rule

  • Fair warning

      • Keeler v. Superior Court of Amador County: def of person

      • Is there a common social duty

      • Keeler

  • Vagueness

      • Some degree of vagueness is tolerable and unavoidable

  • no ex post facto law

  • MPC: The Actus Reus

    1. Conduct, results and attendant circumstances

    2. Most offenses are defined only in terms of conduct and circumstances, with no required result.


MENS REA

A. Mens rea = literally means a “guilty mind”

1. Broader, traditional meaning aka “Culpability Mens Rea” - “a general immorality of motive,” a “vicious will,” or an “evil-meaning mind” (HB, §10.02(B), pg. 126)

2. Narrower, modern meaning aka “Elemental Mens Rea” - “the particular mental state provided for in the definition of an offense” (HB, §10.02(C), pg. 127)



  • Evolution of mens rea

  • Stage 1 an initial formulation permitting an action against one without regard to wrongful intent

  • Stage 2 general wickedness

  • Stage 3 require close connection with the mental state and the act

      • MPC: concurrence of actus reus and mens rea

B. Justifications for Mens Rea Requirement

1. Utilitarian - Only people who think about the penalties for an action can be deterred

2. Retributionist - A person is morally culpable, and therefore properly subject to punishment ONLY IF the person had a choice in his or her conduct and exercised free will in choosing to act. As a result, the person’s mental state, at the time when the act was committed, is relevant in assessing culpability. (EE, pg. 54)

C. Proving Mens Rea

1. To convict a defendant of a crime, the govt must prove that the defendant’s state of mind at the time of the crime meets the mens rea element of the given crime.

2. How can we know what the defendant was thinking at the time that the crime was committed?

a. Inference (e.g., when defendant says I’m going to kill you and points a gun at someone, we infer that defendant’s intention is to commit murder)

b. Motive (although sometimes motives or reasons may constitute defenses) (EE, pg. 66)

c. Look at the time frame - Did the defendant have the appropriate mens rea at one point in time, but not later when the crime was committed? (EE, pg. 67)

d. Move the time frame back to see if the defendant, with the requisite mens rea, acts in such a way that ultimately caused the harm. (e.g., in Decina, although the defendant did not intend to hit the pedestrians, he did intentionally drive knowing he was prone to seizures.) (EE, pg. 67)

D. Mens Rea Under Common Law

1. Intent - Whether the defendant intended to perform a criminal act

a. Distinguish b/w intending the conduct and intending the result

b. Transferred Intent

(1) Like in tort law, intent can be transferred from one person (i.e., the intended victim) to another person (i.e., the actual victim).

(2) However, unlike in tort law, intent can only be transferred to the same type of harm or crime; e.g., if someone intends to kidnap A and winds up killing A, intent does not transfer from kidnapping to murder. But if someone intends to kill A but winds up killing B, then intent can transfer from A to B.

(3) Criticisms of Transferred Intent

c. General Intent - Govt must show that defendant acted with the required actus reus element. The defendant’s state of mind at the time does not matter.

(1) Example: Breaking and entering is a general intent crime. Breaking and entering with intent to commit a felony is a specific intent crime. (EE, pg. 59)

d. Specific Intent - Govt must show that defendant engaged in specific conduct with the objective of bringing about a specific result

(1) Look at whether the statute includes the words “with intent to” do X (e.g., burglary is breaking and entering with intent to commit a felony)

(2) However, absence of “with intent” DOES NOT mean that a crime is a general crime.

e. Negligently - Defendant is unaware of the risk

(1) To be criminally negligent, defendant must act with gross negligence. Gross negligence is typically more extreme than tort (civil) negligence.


  • Regina v. Cunningham, 1957 (CB, pg. 149)

  • The trial court thought the mens rea meaning was wickedness.

  • The appellate court quashed the conviction. Malice must be taken not in the old vague sense of wickedness in general but as requiring either

      • An actual intention to do the particular kind of harm that in fact was done; or recklessness as to whether such harm should occur or not, i.e., the accused has foreseen that the particular kind of harm might be done and yet has gone on to take the risk of it.

  • The word maliciously in a statutory crime postulates foresight of consequence.

f. Willful Blindness

(1) Ostrich instruction

(2) Nations - “I didn’t know she was underage when I hired her to work in a strip club”
State v. Nations, (Missouri Court of Appeals, 1984), pg. 161

State v. Bar owner who “didn’t know” that she employed underage dancers



  1. Issue: Must a defendant have actual knowledge of the existence of the attendant circumstances which constitute a crime to “knowingly” engage in criminal conduct?

    1. Ostrich instruction (willful blindness b/c D willfully shut her eyes to the facts)

  2. Holding: Yes, to “knowingly” engage in criminal conduct, D must have actual knowledge of the existence of the attendant circumstances which constitute a crime.

  3. Procedural History: D appeal conviction for child endangerment, arguing that she didn’t know that the person was underage. Court reversed.
  4. Facts: D owned a bar in which police found a scantily-clad 16 year old girl “dancing” for tips. D claimed that she had verified the girl’s age; however, this statement was not true b/c the girl didn’t have proper identification when D hired her.


    1. D was charged with endangering the welfare of a child less than 17 years old.

  5. Rule: “Knowingly” is a term of art, which means that a person has actual knowledge.

    1. State Code: “A person acts knowingly or with knowledge (1) wrt attendant circumstances when he is aware that those circumstances exist.” (pg. 162)

    2. MPC § 2.02(7): “When knowledge of the existence of a particular fact is an element of an offense, such knowledge is established if a person is aware of high probability of its existence, unless he actually believes that it does not exist.” (pg. 982)

  6. Rationale:

    1. The state’s burden was to show that D was actually aware that the child was under 17, NOT that there was a “high probability” that D was aware.

    2. The state proved that D acted with the mens rea of “recklessly,” not knowingly, and thus did not satisfy the elements of the crime.

    3. “D’s refusal to learn the rage of this child...simply proves that D was ‘aware of a high probability’ that the child was under 17.” (pg. 164)

    4. Look at Mr. Sleaze problem, pg. 164, Note 1

2. Strict Liability is a counter to mens rea, b/c no mens rea is required to convict

E. Mens Rea Under the MPC

1. MPC § 2.03(2) and § 2.03(3) retain the concept of transferred intent as a matter of causation (EE, pg. 77)

2. MPC § 2.02 defines four degrees of culpability (CB, pg. 980-981)

a. Purposely - A person acts purposely if his objective is to do a certain act or achieve a certain result (objective liability)

b. Knowingly - A person acts knowingly if he knows that the result is substantially likely to occur, even though he may not have intended for the result to happen (objective liability)

c. Recklessly* - Defendant is aware of risk OR of attendant circumstances but chooses to act anyway; Defendant consciously disregards the risk. Must foresee that harm may occur (subjective liability)

(1) Difference b/w knowingly and recklessly is the degree of the risk. Knowingly - risk of harm is “substantial” or “practically certain” whereas in “recklessly” the harm is less certain to occur

(2) * Recklessly is the default degree of culpability

d. Negligently - Defendant was not subjectively aware of the risk, even though a reasonable person would have been aware (subjective liability)

3. The mens rea adverb modifies every material element in a statute, unless the statute is plainly written otherwise. (MPC § 2.02)

4. Ladder of Intent

a. Under MPC § 2.02(5), if a crime is defined in terms of a lower mens rea, then you can convict if a higher mens rea is present (e.g., if the crime requires a mens rea of “recklessly” and the defendant acted “purposefully,” then you could convict).

b. However, the converse is not true (e.g., if the crime requires a mens rea of “purposefully” and the defendant acted “recklessly,” then you can’t convict b/c “recklessly” is an insufficient mens rea)

United States v. Morris, (U.S. Court of Appeals, 2nd Cir.), pg. 167

Fed govt v. Computer hacker



  1. Issue: To convict a defendant under the Computer Fraud and Abuse Act, must the govt prove only that D intended to access a federal-use computer, not also that D intended to cause loss or damage?

    1. Whether a particular mens rea requirement modifies some or all of the elements in the definition of an offense?

  2. Holding: Yes, to convict under the Computer Fraud and Abuse Act, the govt need only to show that D intended to access a federal-use computer. The govt does not have to show that D intended to cause loss or damage to the computer.

  3. Procedural History: D appealed conviction under a federal computer crimes law for breaking into federal-use computer networks, arguing that he didn’t intend to cause damage and actually took steps to ameliorate the situation

  4. Facts: D was an MIT student who created a computer worm that infected a bunch of federal and military networks (this was in 1988, when the Internet mainly consisted of federal, military, and university networks)

    1. The worm crashed machines around country, and it was very expensive to repair damage.

    2. D argued that he only released the worm to test computer security and never intended to cause damage.

  5. Rule: 18 U.S.C. 1030(a)(5)(A) covers anyone who (5) intentionally accesses a Federal interest computer without authorization, and [thereby] alters, damages, or destroys information...“ (pg. 168-169)
  6. Rationale: Argument was about whether “intentionally” only means “intentionally accesses” or means “intentionally access AND intentionally alters, damages, or destroys...”


    1. Court analyzed the grammatical construction of the law, noting that other subsections used “dual intent” language, where it repeated the mens rea requirement.

    2. However, the law did not repeat the mens rea requirement before “alters, damages, and destroys information.” Thus, the mens rea of “intentionally” only applied to whether D intentionally accesses the networks, not to whether he intentionally caused damage.

5. See table in EE, pg. 80

F. Morris



CAUSATION




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