Criminal Law Tutoring Session 2

Feb. 9, 2011

Overview

Criminal law system Trial procedure

Defining criminal conduct

Legality Proportionality Actus reus Mens rea Mistake of fact Strict liability Mistake of Law Actus reus Mens rea Reform issues Premeditation Provocation

Unintended killings Felony-murder Death penalty

Evidence basics Burden of proof Advantages Disadvantages Blame Justifications

Juries

Significance of the resulting harm

Causation Attempt Complicity Corporate liability Conspiracy Justifications Excuses Insanity

Issues in punishment

Group culpability

Rape

Retribution Utilitarianism Vengeance

Principles of exculpation

Homicide

Sentencing

Where we are now

Criminal law system Trial procedure

Defining criminal conduct

Legality Proportionality Actus reus Mens rea Mistake of fact Strict liability Mistake of Law Actus reus Mens rea Reform issues Premeditation Provocation

Unintended killings Felony-murder Death penalty

Evidence basics Burden of proof Advantages Disadvantages Blame Justifications

Juries

Significance of the resulting harm

Causation Attempt Complicity Corporate liability Conspiracy Justifications Excuses Insanity

Issues in punishment

Group culpability

Rape

Retribution Utilitarianism Vengeance

Principles of exculpation

Homicide

Sentencing

Sentencing

Generally: There are guidelines, but judges have broad discretion Sentencing cases

United States v. Milken: Walks through a whole bunch of factors (pro-long sentence and anti-) that judge used, and the upshot is that this type of crime is hard to discover and therefore gets a harsh sentence. Note: This case was before federal sentencing guidelines. United States v. Jackson: Life in prison without parole for robbing a bank right after because D had previous felonies. United States v. Gementera: D had to wear a sandwich board. Are creative sentences OK?

Sentencing

What to take from these cases:

How do you justify the sentence? Through retribution? Deterrence? Are there things that shouldnt be punished at all? (Segue into next topic)

Defining criminal conduct: Legality

Crimes must be defined by law

Formality (written down) Universality (applies to everyone) Generality (written in general form) Non-retroactivity (no tailoring law to fit specific conduct)

Constitution prohibits this (no ex post facto laws)

Why codify whats a crime?

People have to have an idea if theyre committing an illegal act Cant create common-law crimes

Commonwealth v. Mochan: Cant convict D of obscene phone calls if theres no statue that obscene phone calls are criminal

Defining criminal conduct: Legality

Rule of Lenity (CB p. 142): When a statute is ambiguous, the ambiguity must be construed in Ds favor.

Pro: Erring on the side of not convicting people of things they didnt know were crimes Con: People can use this rule to find loopholes in the statutes

McBoyle v. United States: D convicted of transporting a stolen airplane. The statute only mentioned things with wheels (because airplanes hadn't been invented yet) Ds conviction overturned. United States v. Dauray: D had a stack of loose child porn images. Conviction overturned because statute could be read not to criminalize loose photos.

Defining criminal conduct: Legality

Even when act is heinous, no conviction if the crime wasnt defined (probably)

Keeler v. Superior Court and Rogers v.Tennessee:

Keeler looks at the statute and says no murder. Rogers says crime was murder even though just outside the statute.

If the statute is too vague, it cant be saved

Chicago v. Morales: U.S. Supreme Court rules anti-loitering law is too vague and does not give people warning of whats loitering.

Defining criminal conduct: Proportionality

Two ways to look at this:

Lesser crimes deserve lesser sentences Harshness of sentence should fit the severity of the crime

Ewing v. California: D convicted under 3-strikes law for stealing golf clubs. Was sentenced to 25-to-life because of previous qualifying crimes.

Majority affirmed sentence under incapacitation/utilitarian grounds: Better if this guy locked up. Several dissents: punishment didnt seem to fit crime.

Defining criminal conduct: Actus Reus

Basic definition: A voluntary act. This goes along with actus reus but is separate. More complicated definition: The act thats needed to make the crime Three components of actus reus Conduct: D did criminal act Result: That resulted in definition of crime Attendant Circumstances: Proof of what else is needed. Examples: the thing of value in theft, or the victims age in statutory rape

Defining criminal conduct: Actus Reus

Back to a voluntary act: P has to prove first that D acted voluntarily.

People v. Martin: D was only drunk in public because the police brought him into public. Not voluntary. People v. Newton: D did not remember shooting anyone. If youre so out of it you dont remember, not voluntary. At least in this case. People v. Decina: D was an epileptic who had a seizure while driving. Because D knew this could happen and chose to drive anyway, this was a voluntary act.

Sleepwalking involuntary? Yes. (CP p. 188) Drunkenness? No. D chose to start drinking.

Actus Reus: Crimes of omission

In general, bystanders cant be convicted of failing to stop a crime

Jones and Pope: Both cases involving harm to a child. Courts ruled that even if theres a moral duty, theres no legal duty for bystanders to care for the child. Relationship (parent-child) Duty to care under contract (nursing home, doctor) Landowners duty

Exceptions:

Actus Reus: Possession crimes

Two tests for knowledge of possession Model Penal Code

D must know she was in possession of an illegal substance Unwitting possessor can still be found liable. Honest, I didnt know it was in my bag.

Minority rule

Defining criminal conduct: Mens Rea

Early definition: Guilty mind.

Some sort of knowledge, purpose, intent For each actus reus element, you also need the mens rea.

If the statute reads knowingly took, P needs to show D knew he was taking something

Two old cases

Regina v. Cunningham: Defined malice as wickedness and didnt convict D of harming neighbor for ripping gas meter off wall. Regina v. Faulkner: Sailor dropped a match when stealing rum and burned ship. Court said that because he willfully went to steal rum, he could be convicted of burning.

Defining criminal conduct: Mens Rea

Modern definition: The state of mind required by the statute that was necessary to have committed the crime MPC adopts 4:

Purpose Knowledge Recklessness Negligence

Well pick up here next time

Coming up

Next office hours: Wednesday, Feb. 16, 11 a.m. in the caf Next tutoring session: Wednesday, Feb. 23, 11 a.m. room 206 E-mail: janna.fischer@colorado.edu Semi-criminal-law-related plug: Consider working for a judge this summer. Especially in Denver, where they hire a ton of interns.