CJL4110 FINAL EXAM

Common Law (judicial)

Judges define crimes over time via particular cases

• Follows precedents: principle to follow past court decisions

Statutory Law (legislative)

Law codified by statute

• enacted through legislative process

• Allows fair notice and is more democratic 

Trial Courts (1st in process) 

Often uses judge and jury

• Judge manages the process and assists jury

• Jury decides facts and final decision

Appellate Courts (2nd in process)

Defendant appeals trial court decision if guilty verdict

• MUST be based on LEGAL errors, cannot be factual errors 

Criminal Liability

Conduct unjustifiably and inexcusably inflicting or threatening substantial harm to individual or public interest

Criminal Conduct

A wrong that causes social harm

• Doesn’t have to be morally wrong or harmful

Burden of proof

Must be proved by prosecution

• Every element of the alleged crime must be proved ‘beyond a reasonable doubt’

• factual burden

Burden of Production

Must be produced by prosecution

• Must provide evidence against defendant

• Legal burden

Burden of persuasion

Defendants may have to persuade

• Persuade jury of defense by ‘preponderance of evidence’(more likely than not true)

• Factual burden

Presumption of Innocence

Defendant is presumed innocent until proven otherwise

• 5th and 14th amendments 

• Due process

Retribution

Punishment is justified by principle of justice and moral responsibility

• Punishment is proportionate to crime

General Deterrence

Punishment keeps society as a whole from committing crime

• reduces future crime in society

Specific Deterrence

Specific criminal will be less likely to commit future crime as punishment increases

Rehabilitation

Focused on the individual offender, preventing criminal from future crime by helping them

• Crime is a social disease

• “medical model of crime”

Incapacitation

Crime can be prevented during time of incapacitation

• Keeping criminals out of society to deter crime

Ex Post Facto (after the fact)

1. Government cannot criminalize an act that wasn’t criminal when it was committed

2. Government cannot increase punishment for a crime after it was committed 

3. Government cannot take away a valid defense that was available when the crime was committed

Due Process

Specifically the 5th and 14th amendment protect citizens from having rights take away before being charged with a crime

• Nor be deprived of life, liberty or property without due process of law

Freedom of Speech (1st)

To criminalize a form of expression, must prove a compelling government interest

• There are unprotected forms of expression (Obscenity, defamation, threats, fraud, inducement, fighting words. advocacy of lawless behavior)

• law prohibiting unprotected speech must be content-neutral and not be overly broad

Right to Bear Arms (2nd)

Two major interpretations of either individual or state right to own/possess firearms

• Right for citizen to possess/use for self-defense (NYC Rifle & Pistol Associate v Bruen, 2022) 

Right to Privacy

Constitution doesn’t explicitly provide an individual right to privacy

• Due process may limit substantive power of states to regulate certain fundamental human liberties

Cruel and Unusual Punishments

Government prohibited from imposing criminal punishment that is cruel and unusual

• Punishment must fit crime (proportionality)

• 8th amendment

• Originally protected from barbaric punishment

• Follows evolving standard of decency

• Death is only proportionate in murder cases

Ancient Principle of Legality

Actus Reus

Bad act, first principle of criminal liability

• Crime must be a voluntary act

Voluntary Requirement

Bodily movement that otherwise is a product of the effort or determination of the actor, either conscious or habitual

• Only one voluntary act is necessary if there is both voluntary and involuntary involved in conduct

Act Requirements

Crime must be an act

• Can’t punish thoughts

• Cannot punish status or condition

Criminal Omissions

No punishment for failing to prevent harm to others

• Only a crime when there is a legal duty to act

• American Bystander Rule

Criminal Possession

Possession does not violate actus reus

• “pretend” that possession is an act

Types of Possession

Actual Possession: Physical possession

Constructive Possession: substance ‘within control’

Mens Rea

Act doesn’t make actor guilty unless the mind is guilty

• Not the same as motive 

Strict Liability Crimes

Liability without fault

• No mens rea

• Target very dangerous activities

• Prohibit accidents

Purposely (mens rea)

Conscious objective to commit crime or cause criminal results

• most culpable state of mind

Knowingly (mens rea)

Person is aware act they commit will likely cause a bad result

Recklessly (mens rea)

Person is aware act creates a ‘substantial and unjustifiable risk of harm’

• Conscious disregard of risk

• Subjective test

Negligently (mens rea)

Person is not aware the act creates a substantial and unjustifiable risk, but ‘should have been aware’

• Unconscious disregard of risk 

• Objective test (reasonable person)

Criminal Liability

1. Was there a criminal act?

2. Was there a culpable mental state?

3. Did the criminal conduct cause harm?

4. Was the criminal conduct justified?

5. Was the criminal conduct excused?

Factual Causation

Is X necessary to cause Y

• “But for” test: but for X, would Y have happened?

• Substantial factor test:  Was X a substantial factor in bringing about Y?

Legal Causation

Both factual and proximate cause

Mistake of Fact

Defendant commits criminal act, but makes factual mistake that leads to reasonable misunderstanding

• Failure of proof defense

• Negates criminal intent required to commit a crime

Mistake of Law

Defendant is ignorant of the law

• Generally not a defense to crime

Vagrancy

Roaming without visible means of support

• Targets poor people

• Struck down due to violating due process, vague and allow arbitrary enforcement

• Cities still have right to create “commercial zones”

Loitering

Remaining in one place in public without apparent purpose

• Also regulates poor people 

• Often struck down due to vagueness and allows arbitrary interpretation

Loitering and “gang activity”

Certain cities have ordinances against gang congregation

• Allows officers interpretation as to where more than two people gathering looks like ‘gang activity"‘

• Struck down for vagueness as it could apply to anyone, fails to provide notice and invites arbitrary enforcement 

Panhandling

Seeking support through public solicitation

• Because panhandling involves an overt act, doesn’t violate due process

• Doesn’t violate free speech if its content based and doesn’t allow ofr other means of communication

Treason

Levying War against the US, adhering to the US’s enemies, gave the enemies aid and comfort

• Only crime defined in the constitution

Difficulty to prove treason

Requires testimony of two witnesses or a confession, very difficult to prove

Sedition

Actus Reus: Advocating for violent overthrow of the government

Mens Rea: Purposely/knowingly

Sabotage

Actus Reus: Destroy, damage. obstruct, interfere with, contaminate or produce defective national defense property

Mens Rea: Purposely/knowingly

Espionage

Actus Reus: Unlawfully communicate information about national defense to others

Mens Rea: Specific intent

Attendant circumstance: useful to enemy or harmful to national defense

Antiterrorism Statutes

Material support to terrorists

• Provide material support, resources or conceal or disguise the nature, location, source or ownership of resources

Material support to terrorist organizations

• Provide material support or resources or attempt or conspire to do so

Accomplice Liability

Actus Reus: Aiding, abetting, inciting or encouraging another to commit crime before or during

• Includes criminal omissions

• Words may be enough, mere presence is not

Mens Rea: Specific intent, knowledge isn’t usually sufficient

Accessory After the Fact

Liability that attaches for participation after crime is committed

Vicarious Liability

Respondent Superior: Holds employer responsible

• Employer liable for crimes of employee if committed during “scope of employment” to benefit of employer

• Corporate liability: Corporation can be sued, sue, enter contracts and commit crime

Inchoate Crimes

crime in development where harm isn’t completed

Dangerous person rationale (attempt)

Person who attempts to commit crime is just as culpable as those who succeed

Dangerous act rationale (attempt)

Attempted crime is a dangerous act

• how close defendant got to completing crime

Attempt (inchoate crime)

Actus Reus: Susbtantial steps toward completing crime that strongly corroborate the actor’s purpose

Mens Rea: Specific intent to commit specific crime

Voluntary Abandonment

Defense against attempt if criminal act is voluntary “abandoned”

• Clear voluntary change of heart

• shows “renunciation of criminal purpose”

• Cannot be motivated by extraneous factors”

Factual Impossibility

Defendant attempts to commit a crime but it is physically impossible due to unknown circumstances that interrupt or prevent crime

• Almost NEVER a defense

• Crime wasn’t committed as it was impossible under factual circumstances

Legal Impossibility

Defendant believes act is criminal but there is no law stating behavior is illegal

• almost ALWAYS a defense

• Defendant engages in behavior that is believed to be criminal but is not

Solicitation

Actus Reus: Words commanding, encouraging or urging another person to commit a crime

• Must be direct request

Mens Rea: Specific intent that solicitee commit crime

Conspiracy

Actus Reus: Agreement between 2+ persons to commit an unlawful act

• must be overt act

Mens Rea: Specific intent to commit crime