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Criminal Law - 2021 Outline - Part 1

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Part 2 >>

  1. What Is A Crime? - Hart v. Devlin (2 sides of the spectrum)
    1. H.L.A. Hart - We must look at the harm to others, not the views of the majority, to determine what is right or wrong.
      1. Largely predominant belief after Lawrence v. Texas
    2. Lord Devlin: Majority moral beliefs reign= we should determine what is criminal by what offends the moral majority.
    1. Act
    2. Mental State: intentionally/purposefully, knowingly, recklessly, negligently
    3. Causation
    4. Harm/Suffering (to society)
  3. American Law Institute and the Model Penal Code
    1. MPC created in 1962
    2. Creates a guideline for statutes; however, it is not de facto law; just a template
  4. Difference between US and Other Countries
    1. Dissenting opinions
    2. American Bystander Rule- No duty to intervene
  5. Common Issues on appeal
    1. Law wrong in indictment, in conducting jury selection, etc.
    2. Procedure wrong, such as closing argument
    3. Judge improperly limiting evidence
    4. Bad jury instruction
    5. Insufficient evidence
Constitutional Questions

1ST Amendment: Freedom of Speech: Gov’t can limit time/place/manner but not content.

4th Amendment: No illegally obtained evidence

5th & 14th Amendment: Due Process Clause: Proper Notice Needed, No vagueness in statutes (must be interpreted w/ certainty), Equal application, Statute must be constitutional.

8th Amendment: cruel and unusual punishment.

1st Amendment
  • Commonwealth v. Jones - KY 1994
    • Woman called cop “Nazi pig motherfucker” - is arrested for disorderly conduct, making “unreasonable noise”
    • ∆ makes 1st amendment argument instead of 14th (which she should have) “unreasonable noise” is unduly vague + she hints at selective prosecution
5th/14th Amendment - Due Process
  • DP v. State - Fl Ct App 1997 Do minors have fewer rights?
    • Charged with being in possession of spray paint can
    • ∆ argues infringement of due process (14th Amendment): state says its ok to afford less due process to minors (intent can be assumed from anecdotal evidence) bc they are protecting them.
    • ∆ pleads Inherently Innocent Items doctrine: Can’t be charged w/ possession of legal item: State says if its prohibited for that age, then you can assume intent.
  • Lawrence v. TX - SCOTUS 2003 Rejecting Devlin’s Morality view
    • Monumental Case- made anti-sodomy statutes unlawful
    • Overall Rule: Governing majority’s views are not sufficient for upholding a law prohibiting an act which they find to be immoral (the law is unconstitutional)
      • Denying Devlin’s opinion of the law
    • Overrules Bowers, which held that anti-sodomy statutes aren’t unconstitutional
8th Amendment
  • Jones v. City of Los Angeles 9th Cir. 2006 Cruel + Unusual to Punish Status?
    • Several homeless ppl arrested for sleeping on street ( LA statute)
    • Rule: It is unconstitutional to prohibit an involuntary act or condition is it is an unavoidable consequence of one’s status or being
    • Uses 2 cases Powell and Robinson
      • Robinson: You cannot criminalize being an addict
      • Powell: You can criminalize public drunkenness (an act, not condition)
    • Limited holding: so long as more homeless > available beds: can’t be illegal
The Act Requirement (Actus Reus)

Voluntary act OR an omission where one has duty to act

Gov’t must prove (1) ∆ consciously aware of actions (2) ∆ is voluntarily acting

(so unconsciousness and acting under compulsion of others = failure of proof)

Problems that come up w/ Act Req:

  1. Did the ∆ Act?
  2. What kind of act?
  3. Is there a failure to act?


  • State v. Hinkle - Unconsciousness
    • ∆ kills two others in a car crash; undiagnosed brain disorder; charged w/ manslaughter
    • Rule: When dealing with a claim of unconsciousness, state must prove that the actions were conscious and voluntary
    • Admission of evidence: evidence of alc consumption prejudicial (bc BAC=0)
    • Note: unconsciousness can be affirmative defense or F.O.P. (as it is here)
  • Commonwealth v. Pestinakas - Act Req can be satisfied by OMISSION.
    • Can person be prosecuted for murder for failure to perform a contract (with hospital staff) to provide food and medical care for another?
    • Yes- the omission of an act fulfills the voluntary act requirement so long as the mens rea is satisfied
      • Court found that it was, based on them withdrawing money from his acct
The Mental State Requirement Mental State Requirement Purposefully (Subjective Standard)
  • The person knows doing X will create Y outcome; and they want Y outcome
  • Knowledge + a desire for the intended outcome (goal-oriented behavior)
  • Highest state of culpability
  • State v. Smith - NJ 1993 Impossibility a defense?
    • HIV infected inmate biting guard charged with attempted murder
    • Issue: Does it matter whether ∆’s actions could not, in fact, result in death?
    • Rule: For a charge of attempted murder, only need proof ∆ acting intentionally (thought it could kill) regardless of impossiblity
    • Established intent through prior words, actions
Knowingly (Subjective Standard)
  • Conscious act + awareness that the result is practically certain.
  • Ex: Arson (knowingly burns down structure)
  • Fabritz v. Traurig - 4th Cir. 1978 : Knowledge requirement
    • Child abuse case: did mom know she was risking the child’s life by not seeking medical care? Court determines NO.
    • Holding: no evidentiary basis for proving the knowledge requirement
    • Dissent: knowledge can be inferred from her prior comments (“Tommy hits hard”, saying she hadn’t gone to dr. bc of bruises)
    • HABEAS CORPUS: Civil action against the jailor/warden/governor; alleging unlawful detention or imprisonment
  • Flores-Figueroa v. US - What parts of statute does mental state adhere to?
    • identify theft bc his fake SSN belonged to others (claims he didn’t know)
    • Issue: Statute’s language tricky = does knowingly apply just to having fake documents, or knowing the #s belonged to a real person
    • Rule: Yes, statute req’s that “knowingly” apply to #s belonging to real person
  • Rehaif v. United States -
    • Illegal immigrant possessing gun: mens rea of “knowingly” applies to what? the possession of the gun, the illegal status, or the law.
    • Rule: Knowledge applies to all elements of the crime: he had to KNOW that his status was illegal (which state didn’t prove) (there is a scienter requirement)
    • SCIENTER: Knowledge of the wrongness/criminal nature of the offense.
  • Compare to: US v. International Minerals and Chemicals Corp.: Risky business
    • Company illegally shipping corrosive materials: claimed unaware of crime; the Supreme Ct said only knowledge req only applied to the fact that they were shipping dangerous materials
    • W/ high risk activities = no scienter requirement (they don’t need to know its a crime, just have to know that they are doing it
Recklessly (Subjective and Objective Standard)
  • RecklesslyMost difficult mens rea to establish
  • Conscious disregard (S) of substantial and unjustifiable risk (O)
    • Hardest thing to prove is the subjective = that THEY knew
  • Must be a gross deviation from normal standard of conduct
  • Commonwealth v. Welansky - Mass. 1944
    • Cocoanut Grove nightclub fire; several code violations, owner not present
    • Charged w/ IVMS (Involuntary Manslaughter): Can he be “reckless when not present?
      • His control, not presence, makes him responsible
  • Commonwealth v. Huggins - PA 2003
    • Bus driver crashed after falling asleep at the wheel; convicted of IVMS: Guilty
    • speeding, driving tired w/ children, overloading van by 9 people
    • Rule: conscious disregard for human life + acts differently from the standard of conduct that a normal person would exercise, then ∆ G for IVMS.
Negligently (Objective Standard)
  • When they didn’t know, but should have known
  • Gross deviation from reasonable standard of care
  • Objective standard bc its basically the reasonable person standard.
Mistake of Fact or Law 1. Mistake of Fact
  • If knowledge of that fact is element of the crime: then it is a failure of proof
    • Ex.: Larceny “Whoever intentionally takes property, knowing it belongs to someone else” : ∆ NG if he thought he owned it
  • If knowledge not an element: it’s affirmative defense– special jury instruction needed
    • Ex: Arson: “Whoever knowingly burns structure and does so w/o permission”
    • If you burn something, but think you own it: all elements of the crime are met; however, you can raise the mistake of fact as a defense, so jury instructed
      • Policy reason? You made a reasonable mistake: as matter of public policy, no goal of criminal justice system satisfied by punishing you


  • California v. Russell - Cal Ct. Appeals 2006 Mistake of Fact
    • “Abandoned” Motorcycle taken by homeless man; undertook reasonable inquiry trying to find old owner
    • Issue: Could he still be found liable for receiving stolen property?
    • Court reverses conviction on grounds that he should have received a jury instruction on mistake of fact - PER MARCUS, this is WRONG
      • Knowledge required by statute: thus, state failed to make its case, this is a failure of proof. No jury instruction was needed.
2. Mistake of Law Doctrine
  • Normally, “ignorance of the law is no defense”
  • If knowledge of the law is required by the statute - mistake of law is a failure of proof
  • If it isn’t - mistake of law if an affirmative defense
    • Successful depending on if ∆ acted with reliance upon an official statement of law given by a public officer (not his lawyers)
    • However, if it is a risky activity, no notice of the statute needed.


  • United States v. Mancuso - 2d Cir 1970 Mistake of Law
    • Statute: if narcotics offense = alert customs upon entering/leaving the country (wasn’t posted in noticeable places, advertised) No req to know of statute
    • Rule: if people don’t know about law; no useful end in punishing “violators”
    • Note: Court is rewriting the statute to have a scienter requirement (Knowledge of the existence of a law): COURTS AREN'T SUPPOSED TO DO THIS.
Punishment & Sentencing

“One man ought never to be dealt with merely as a means subservient to the purposes of another” - Kant

Goals of Criminal Law
(Sentencing and Punishment)

  1. Retribution - punitive element; you must be punished for your wrongs
  2. Incapacitation - keeping dangerous people out of civil society
  3. Deterrence - prevents others from committing the crime
    1. Specific: so this ∆ will not commit crime again
    2. General: warning others of consequences
  4. Rehabilitation - redeems prisoners as members of society

3 ways to sentence

  1. Judges: traditional system, historically they had max discretion. WHY: less shock from cases, able to weigh human factors case by case
  2. Juries: Only 5-6 states that involve them in sentencing. WHY: No outside influence/political interest; Morality being judged by societal standards/peers; One opinion shouldn’t determine someone’s fate; Makes juries confront the seriousness of their role
  3. Legislatures: through sentencing guidelines: WHY: Less discrimination, general deterreance for white collar crime, preserves ct resources, consistency

Mandatory Sentencing (became big 20-25y.a.)

  • Judges used to have full discretion, now a lot have to defer to legislature
  • Gives a range for each crime
  • Typically has mandatory minimum
  • Include calculation of mitigating and aggravating factors
  • A lot of pushback: now they are more advisory than completely mandatory: however, they are still generally followed

4 kinds of incarceration:

  • Waiting to be convicted (usually in county jail)
  • County jails - already sentenced, usually with misdemeanors
  • Prison: Can be state or federal (but overwhelming majority in state system)
  • Confinement: Paroles, probation, etc.


  • Our prison population = 2.1 million
  • Cost of incarceration: 30k-70k per year
  • Alternative Sentencing: 6 types: Restitution/Fines, Community Service, Electronic monitoring, Drug/Alcohol treatment, Job-training/re-entry, suspended sentences
    • Big movement towards alternative courts (drug courts etc): are cheaper also
  • State v. Federal Sentencing
    • Vast majority of criminal cases are state
    • Federal cases: crime crossing state lines, violations of federal statutes (Ex. white collar crimes), (Also, Conspiracy usually fed), using interstate means of communication (mail, phone, etc.)
  • Sentencing: Concurrent v. Consecutive
    • Concurrent sentence= can be served at same time
    • Consecutive= must be served one after another


  • United States v. Bergman - S.D.NY 1976 - Lighter sentences for white collar crime
    • Sentencing memorandum: Bergman was rabbi; guilty of fraud (state + fed)
    • Judge explaining why only 4 mo.: rehabilitation doesn’t work, don’t need to keep him off street, deterrence isn’t a worry bc he won’t do it again
    • But what about overall deterrence?
  • United States v. Jackson: 7th Cir 1987: Hefty time w/ Sentencing Guidelines
    • Another sentencing memorandum: Bank robber, released and robs bank 30 minutes later; up for life imprisonment
    • Posner mentions doubt of efficacy of jailing Jackson for life: claims he prefers ~ 20y: but he must defer to the legislature that allows this.
    • He does mention that Jackson can apply for clemency later
    • Clemency ≠ pardon : Usually acknowledges guilt
      • Clemency can reduce a sentence; grant reprieve or commutation of sentence
      • Pardon will make the crime go away
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