Professional Documents
Culture Documents
1. General Deterrence
a. Critiques: Over Inclusiveness (torturing terrorists, punishing scapegoat to stop mob)
2. Specific Deterrence: We punish to prevent crimes by actor - 2 Sub sets
a. Incapacitation: You cant do it while incarcerated - Regret Cost if they repeat after
release. Involuntary Civil Commitment for risky actors not in the right mind.
b. Intimidation: You will be afraid to do it again + rehabilitation
3. Limits of deterrence – sometimes we don’t want to punish people – like heat of passion
killing, also some people are hard to deter, like drunk.
4. Negative Retribution – only punish if we have a good faith belief that he did the act +
proportionality requirement
5. Positive Retribution: This will realign society – by punishing the wrongdoers
Criminal Law – Now all statute because 1) we want legislature to debate it 2) notice.
Notice: 1) Bad man 2) plan of action 3) know what your being charged with
Police can only arrest with Probable Cause – “substantial chance that the suspect committed the
offense under investigation.”
Burdens of proof:
1) Preponderance of the evidence – Tort standard –more likely than not - More than 50 %
2) Clear and convincing evidence –but you have a clear and convincing case – (he says about
>66.6%) Involuntary civil commitment, Rape, Fraud…
3) BARD – he says >95%. A reasonable doubt acquits. If you have a whacko doubt – than
don’t acquit. OVERWHELIMING, WITH ALMOST NO WHIGGLE ROOM.
The SC - In Re Winship ruled that the due process clause requires guilt beyond a reasonable doubt
to convict. In our society it is thought better to let the guilty free then to imprison the innocent.
BARD standard was said to mean “near certitude” but cannot be quantified. Jury instructions must
tread carefully when describing this standard.
Owens v. State: of “a conviction upon circumstantial evidence alone is not to be sustained unless
the circumstances are inconsistent with any reasonable hypothesis of innocence.” The appellate
standard of proof is “a reasonable trier of fact could have found” – Sufficiency of the evidence.
.It sounds like a preponderance standard, but this is the standard on appeal – is it rational – aka
>50%. YOU MUST GIVE DEFERENCE TO THE FACT THAT THE TRIAL COURT
CONVICTED.
Jury Nullification:
1) it shouldn’t be done – sep of powers, jury decides what law is – is improper
2) For nullification – the jury works as a interstitial device that will account for unexpected
circumstances and to make corrections as needed, just as a legislature would if necc.
Trial judge motion for directed verdict for acquittal must turn on: weather a “reasonable mind might
fairly conclude guilt beyond a reasonable doubt.” If he concluded that there must be such a doubt,
he must grant the motion for acquittal.
In an appeals trial, all factual decisions must be decided by the trier of fact: the jury below, (they are
best suited for deciding facts) if there is a uncertainty, than assume it in the favor of the prosecution
and defer to that resolution.
Keeler v. Superior Court: Concepts:
• Courts Reasoning for no expansion to include viable fetus:
o Jurisdictional – separation of power – leave to legislature
o Constitutional – no ex post facto laws
o Look back in time – Theory of legitimacy – the law is what it was intended to be
• Other reasons:
o Due Process violation for retrospective judicial reinterpretations
o Notice
• Dissent – believes he is being faithful, just translates “baby must be born alive” to today’s
modern technology concept of “viable fetus”- Dissent & majority argue about LEVEL OF
GENERALITY.
• Concepts in statutory interpretation:
o INTENT OF LEGISLATURE – FREEDOM OF LEGISLATURE TO ALTER
LAWS
o Level of generality
o Laws against vagueness – very hard to win
o Rule of Lenity – If statutory interpretation is close – go in favor of Δ – don’t want to
imprison by accident. Invoked a lot but applied a little.
o Look back in time – controversial (fuzziness, deadhand vs. theory of legitimacy)
o Texualist,
o Due process – don’t change the meaning + Constitutional no ex post facto
o Notice
Actus Reus
Voluntary act or culpable omission.
Other Rules:
• If he claims NEG – we can get him on REC if the jury believes he entertained the risk
o If actor is Optimistic – that means they entertained the risk.
• The risk must be substantial – and they must know its substantial
• Talk about salt over shoulder Hypo – 1) She believes it will work 2) Shes not sure hes home
3) she’s optimistic it will work
• If No MR – If plain intention for SL appears – if not 2.02.3 – RECKLESSNESS FLOOR,
Default rule.
• 2.02.4MR will apply to all elements of an offence unless contrary purpose plainly appears,
or grammar makes it not correct to be read together – there if no contrary purpose plainly
appears we impute REC floor. Ex. “Purp import contraband, causing death”
• Felony to KNOW posses 625 mg of an hallucinogen. Court said know about 526 too
because its an AC – legislature changed it to not be dispositive.
• Proving a higher level than required will work 2.02.5
• You don’t need to understand an offense to be guilty.
• Willful = Knowingly 2.02.8
• Bomb on boat with intent to kill one – MPC 1 intent and rest KNOW, nonMPC – rachet all
up to INTENT.
• Situation known to him – Most things we will let in – cant get in too idiosyncratic.
• Historically nonMPC culpability, MPC – transition to elemental – no practical difference.
o Malice cant simply be defined as wickedness – A correct definition is imperative.
Regina v. Cunningham, (represents shift to elemental regime)
Willful Blindness, 2.02.7 Knowledge satisfied by awareness of a high probability. (2nd bite at
awareness of AC) State v. Nations.
• State v. Nations, MPC has WB provision – were not sure if that case qualifies as WB. May
be able to get nations on PURP – because that includes believes in the AC.
• Some nonMPC have Deliberate avoidance – this is def. less than awareness of a high
probability and may be classifies as a type of REC.
• Order of awareness: aware of AC (know) aware of HP of AC (know WB) REC (may
include Deliberate avoidance in nonMPC world).
• IF HE ACTUALLY BELIEVES AC DOES NOT EXIST CAN’T GET HIM ON WB EVEN
IF HE SUSPECTED AT SOME POINT. “UNLESS CLAUSE” oregano hypo from drug
dealing friend. (about rec. – he may not have even disregarded substantial risk – you only
form MR once and he firmly believes.)
Strict Liability – Only show AR – no MR. (AR, Caus & defense discussions still available.)
Aspects of SL:
• Very common by public welfare offenses & Usually light punishment cases
• Policy discussion – is it good to have this (no deterrent value – causes overdetterence,
economic perspective – social costs, maybe he will claim he didn’t know – willful blindness
– avoidance etc....)
• MPC 2.05.1.b Must clearly state Strict Liability. (two reasons 1) descriptive – to clearly tell
us 2) prescriptive – to make legislature think hard about SL).
• nonMPC: 2 ways
o If Malim In Se – apply clear purpose rule
o If Malim Prohibitum (PUBLIC WELFARE) They will look at 3 main factors:
Does it regulate s/t dangerous to the public
• particularly in trade
• particularly if MR is hard to tell on a case by case basis
Standard of Care – is this reasonable to expect of people
Penalty is light
o Tough cases will can be argued back and forth.
o Staples v. US – Majority says guns are not inherently dangerous like grenades so no
clear notice to public regarding SL and the penalty is high so no SL. Dissent says
they are dangerous therefore it is a public welfare offense and the owner has a
heightened duty, and it’s a regulatory offense – registration.
• 2 cases where you need to prove MR only for underlying act: 1) FM – only prove MR for
felony 2) Statutory rape – prove MR for intercourse not for age.
• Constitutional Innocence Principal – if each AR is legal by itself, you cant have SL – like
bigamy.
Mistake of Fact: If he has a mistake of fact that negative p/k/r/n than we cant convict him on that.
(Case in Chief Defense) People v. Navarro.
LOOK UP NEGLIGENT MOF
2 second bites:
• 2.04.2 We can convict him of the offence if the way he imagined it was also a crime. Second
sentence we reduce the grade and degree to what he believed it to be – so he will always get
the lower of the two. USE THIS EXAMPLE: “Breaking and entering the dwelling house of
another, with intent to steal”
• Attempts – under not covered portion 5.01.a.
Overview: Prove ACT and that it was reasonably foreseeable and there was no sufficiently culpable
intervening act. NOTE: Causation questions are independent from MR.
ACT: 1 of 3 questions: I like: WOULD THE RESULT HAVE OCCURRED WHEN IT DID BUT
FOR Δ AR? (if they are part of the story – ACT) (accelerators are ACT)
Always answer by saying: BF Δ AR, _____ would not have happened when it did.
Intentional Killings:
• Non MPC world 3 different types of PURP/INTENT homicide 1DM, 2DM and VMS.
o 1DM: PURP or INTENT + PREMED (quantity of time) and DELIB (quality of
time) “Mulled Over.”
o VMS: PURP or INTENT + heat of passion mitigation – provocation
o 2DM: PURP or INTENT w/o PREMED or DELIB (prosecution must prove both for
1DM) and without MITIGATION. “Spontaneous”
Manslaughter Rules:
Unintentional Killings:
Depraved Heart Murder (reckless murder)
IVM (reckless manslaughter)
CNH
Reckless Killing: Same for MPC & nonMPC. MPC CODE 210.2.1B
Felony Murder: Felony + Death = Murder (must prove MR for felony but not for murder) Even
supercareful people.
All states treat as a conclusive presumption (i.e. rule of law) except NH – rebuttable presumption.
MAJOR POLICY DISCUSSION: General deterrence vs. no specific deterrence, punishment
doesn’t fit crime etc…. MPC CODE 210.2.1B
Why is rape prohibited: 1) Violent crime 2) like battery 3) Takes sexual autonomy
MOF regarding consent: 3 ways we could look at his testimony:
1. Pure subjective – honest mistake acquits (even unreasonable) – No jurisdiction
2. Objective test – honest mistake acquits if reasonable – majority of jurisdictions
3. Strict Liability – no MOF, if jury believes V did not consent, will not listen to Δ – minority
If we require clear no, how can we have reasonable MOF – this must mean where he
thought no means yes (enticement).
Force as separate requirement to add an extra check, because we don’t want to confuse
rape and desired activity.
To prove Force: Must show force then and there, at the moment of non-consent (res
gestae) (Commonwealth v. Berkowitz – college dorm room)
To prove threat of force: (State v. Alston)
i. Majority - Must bring out reasonable fear in her. Minority – actual &
subjective
ii. Fear of force must be for right then, but we could look broadly to see if fear
was reasonable, including looking at history. (Objective reasonable test in her
situation i.e. background etc….)
iii. Majority - Must be threat of physical force.
Non verbal threats like a look in his face could be argued both ways. (rusk v. state)
In a consensual relationship – must show revocation of permission.
NJ: No more force than that needed for penetration (1 prong). The AR is then sexual
intercourse; AC is absence of clear yes. Also reasonable MOF ok.
Majority Minority NJ
2 or 1 Prongs 2 NJ 1
Clear No or absence Proof of clear no NJ Absence clear yes
of Clear Yes
Reasonable MOF Yes Strict Liability Yes
Fear Reasonable subjective
Physical Force Yes No
Statutory Rape - NON - STRICT NH: Honest &
MOF LIABILTY reasonable
Freely given could also include badgering and peer pressure.
Illegal threat also is a valid non-consent. But prosecution must also show force unless its
NJ.
Some jurisdictions make a distinction between fraud in the factum and fraud in
inducement for “unconscious to the nature of the act” (Boro v. Superior Court).
We want to call some misrepresentations rape (fear or maybe occupation) but not garden
variety of misrepresentations. IS THIS FOR NON CONSENT??
Statutory Rape:
Majority: No MOF (Garnett v. State) Minority NH: Honest & Reasonable MOF
Should we criminalize this? Takes liberty, risk of STD, paternalism over controlling
what is acceptable consent.
SR & FM – no clear legislative intent for SL.
Defenses:
Several types:
o Failure of proof – Case in chief defenses
o Justifications: One harm over another: SD, Nec.
o Excuse: Insanity – not my fault
• Some subjectivity allowed – size, strength, age, health past relevant experiences – no
idiosyncrasies
• US v. Contento Pachon for alternative question.
• Difference between Necessity & Duress – Nec you use your free will to choose to do this,
Duress – you don’t have a choice.
Intoxication: Only to puncture prosecutions case – couldn’t have had relevant MR.
Attempts:
Some Rules:
• Justices are given much interpretive power for attempts statutes – police given much power
for dealing with suspicion
• Rule of Merger – can be charged with both crime and attempt
• Attempts are lesser included offence
• Could prove attempt by showing completed crime
• We don’t punish for thoughts alone
Subjectivist Theory – Intent + some acts (Intent oriented).
Objectivist – wants to see more action – manifestations (consequences oriented).
1. Proximity – most Δ favorable. How close are you to completed crime. The most proximate
to the last step, the better for prosecution. (Commonwealth v. Peaslee – driving to do arson,
not enough & People v. Rizzo – finding payroll guy, not enough).
2. Means (plus intent) – Does the defense have control over all means necessary – like tools,
plans, specific victim and accomplices. Or did he not get an indispensable item. + Some
action or intent. “IS THERE ANYTHING MISSING”
3. Unequivicality – are there any reasonable explanations that wouldn’t be criminal. (hay stack
lighter – cigar) The law says don’t look at intent evidence – don’t loom at confession or
diary – only look at statements or speech that are part of the criminal actions – HYPO - D
paid X (an undercover agent) to procure a girl for sex – he picked her out of a catalogue and
rented a room, and was arrested as they walked to the room. – These statements that are part
of act (like talking to agent) are admissible – mere desire statement are not admissible.
“SILENT MOVIE”
4. MPC - Most prosecution friendly – 5.01.1.c “Substantial step.” + 5.01.2 “Strongly
corroborative of the actors criminal purpose” – if evidence is strongly corroborative, even if
very early in time line (as opposed to proximity – must be late in game) – there will be
substantial steps.