criminal law

Retributive

Keying punishment to some measure of moral wrong. Punishment is justified because a person deserves it.

Lex talionis

Eye for an eye.

Positive retributivism

A person should not be punished unless they deserve it.

Negative retributivism

A person can legitimately be punished only if he commits a crime, only in proportion of that crime, and only if doing so would produce a world with less crime.

Utilitarian/consequentialist/instrumentalist

Maximizing overall happiness. Punishment is justified by the useful purpose it serves. purposes: general deterrence, individual deterrence, reform

Standard of proof beyond a reasonable doubt

The level of certainty required to convict a defendant in a criminal trial. The prosecution must prove that no reasonable person can doubt that the defendant committed the crime.

Presumption of innocence

The principle that one is considered innocent until proven guilty.

Circumstantial evidence

Evidence that relies on an inference to connect it to a conclusion of fact.

Jury nullification

The act of a jury delivering a verdict of 'not guilty' despite evidence of guilt, based on their belief that the law is unjust.

Elements of a statute

The components that must be proven for a statute to be violated.

Actus reus

The physical act of committing a crime.

Involuntary as a defense

A defense claiming that the defendant did not have control over their actions.

to whom do you owe the Duty of care

A person has a duty to care under these circumstances:

• By statute 

• Based on status to victim 

• Contractual

• Based on creation of risk of harm

• Voluntary assumption of care

Omissions as an act

Actus reus may be an action or omission of legal duty (NOT moral duty). In order to find someone guilty for the actus reus of an omission, you must also prove that they had a legal duty to act.

Two forms of causation

Cause in fact and proximate cause.

causation in fact/but for causation

1. Can it be said that one thing indeed led to another 

2. But for the D conduct would the thing happen

Proximate / legal causation test

was result ‘direct and natural’ consequence of defendants conduct or did intervening cause a break chain

• Was the result foreseeable (was it reactive or merely coincidental)

• Was there voluntary human intervention

• Is D conduct merely de minimis contribution to prohibited result 

• Was the result the intended consequence of the conduct 

• Had the victim reached apparent safety

• Omissions by other parties generally do not break chain of causation 

• If one of these is present and its very present would it be morally appropriate to hold the person liable

Mens rea

The mental state or intent of a person when committing a crime.

Willful Blindness (MPC)

• Rule: if a person is aware of a high probability of the existence of a fact.

Transferred intent

• The victim is different from the intended victim

• Only refers having the mens rea and the actus reus of the crime regardless of if the act happens to the wrong person

Strict liability offense

An offense with no mens rea element in which the actor can be convicted without proof of intent. Generally, these are public welfare (also called regulatory) offenses

General deterrence

People are less likely to commit crime if they know there is a punishment.

Individual deterrence

People will not commit crimes for self-preservation.

Reform

Ability to change people from criminals to functioning members of society.

Expressiveism

Punishment is an outward-facing system and sharing moral condemnation or mercy will motivate the general population to adhere to the rules.

Utility of desert

People are more likely to obey the law if they believe it to be just.

People V Du

Woman shooting a girl in shoplifting case; example of utilitarian punishment with her only getting probation.

Model Penal Code

A mock criminal code made by the ALI, a group of judges, law professors, and practicing attorneys which can be used as influential guidance to the courts.

Common law

Has evolved in the courts since the 1600s based on cases originating in England. The judges set precedents within their decisions and in their opinions. To ensure that there is some throughline and consistence through courts in the same jurisdiction

Statutory laws

Codified laws based on common law principles to establish some uniformity.

Sentencing considerations/objectives

To protect society; to punish the defendant for committing a crime; to encourage the defendant to lead a law-abiding life; to deter others; to isolate the defendant so she can't commit other crimes; to secure restitution for the victim; and to seek uniformity in sentencing.

Owens v state

A case involving a man in the car with empty beer cans in an unknown driveway, illustrating the reasonable doubt standard with circumstantial evidence.

State v Ragland

A case where a man wanted to change jury instruction to not say 'must charge' due to jury nullification, which should not be instructed and is not encouraged.

8th amendment

Excessive bail shall not be required, nor excessive fines imposed, nor cruel and unusual punishments inflicted.

8th A. Proportionality in non capital cases

The death penalty is disproportionate under the 8th amendment when it is “excessive” relative to the crime committed. The court will look to “objective consensus” among states and its own judgment in comparing punishment and crime.

8th A. Proportionality in capital cases

a punishment only violates the 8th amendment when it is “grossly disproportionate” to the crime. The court will defer to legislative penological goals in making this comparison.

• At this point in time the only thing that usually qualifies for the DP is 1D murder cases

Factors in determining gross disproportionality

Includes the gravity and harshness of the penalty, sentences imposed on other criminals in the same jurisdiction, and sentences for the same crime in other jurisdictions.

Considerations of 8th amendment proportionality

Includes primacy of legislature, reasons for the legislature, variety of penological scheme, nature of the federal system, and requirement of proportionality.

4th amendment

The right of the people to be secure in their persons, houses, papers, and effects against unreasonable searches and seizures, requiring probable cause for warrants.

Vagueness

A constitutional objection where a statute does not provide a notion of prohibited conduct or an ascertainable standard to guilt, failing to give fair warning of what is prohibited.

Overbreadth

A constitutional objection where a statute prohibits innocent conduct as well as the intended conduct, potentially allowing for discriminatory enforcement.

Constitutional objections to criminal statutes

Include vagueness and overbreadth, which can lead to discriminatory or abusive enforcement by allowing police to arrest arbitrarily.

Rule of lenity

If there are two equally reasonable interpretations of the statute but one is more favorable to the defendant, go with that one.

Presumption of constitutionality

If there are two interpretations, go with the constitutional one.

Strict construction

If there is a plain meaning, go with that.

Legislative intent

If the text is ambiguous, look to what the creators of the statute were thinking.

Rule against surplusage

Assume each word has an independent meaning.

Coker v Georgia

Court ruled that death penalty was cruel and unusual for the crime of rape because it does not take a life.

Ewing v California

The 8th amendment does not prohibit a state from sentencing a repeat felon to 25-life according to the 3 strikes law.

Keeler v Superior court

Statute interpretation led the court to find a fetus is not a person; therefore, Keeler is not responsible for murder.

In re Banks

A criminal statute must be sufficiently definite to give notice of the required conduct to be avoided and to guide the judge in its application.

Destertrian v Los Angeles

A criminal law is unconstitutionally vague where it fails to provide the kind of notice that will enable ordinary people to understand what conduct it prohibits.

actus reus

the physical or external part of the crime, a comprehensive notion of act, harm, and its connecting link

Voluntary act

A person is not guilty of an act if they do not voluntarily do the act.

Unwilled actions (MPC examples)

Reflex or convulsion, bodily movement during unconsciousness or sleep, conduct during hypnosis, actions forced by 3rd parties.

Automatism

Some jurisdictions define unwilled actions as 'automatism,' which can be considered a mental disorder in some jurisdictions and is therefore a part of the mens rea.

Insanity defense

If automatism is considered part of the insanity defense, it results in the defendant in a mental institution; it is not a complete defense like it would be for actus reus.

Self-induced intoxication

Automatism/unconsciousness caused by self-induced intoxication is generally not a defense.

MPC v common law on involuntariness

In MPC, habits are voluntary, whereas the argument for dazed driving (while a minority view), may be argued in a common law jurisdiction. In MPC, reflex/convulsion is NOT voluntary, whereas it may be in Common Law (see Decina)

Voluntary Assumption of Care

This occurs when a person changes the situation so that others believe they are handling it, e.g., pulling a dying person into a house and not calling for help.

Actual Causation

causation in fact or substantial factor test

But For Test

This test asks if the negative consequence would have occurred but for the defendant's conduct.

Substantial Factor Test

This test applies when two people simultaneously bring about the prohibited result; if one person didn't exist, the other would have caused it but for.

Proximate Cause

1. Which of those but for causes should be considered culpable at a moral level

2. Narrower subset of but for causes

Cause in Fact can be satisfied by answering yes to any of the following:

but for the defendant's conduct, did the negative consequence occur; did the defendant's actions accelerate the negative consequence; was the defendant's action a substantial factor in causing the negative consequence.

Foreseeability

This considers whether the result was foreseeable, whether it was reactive or merely coincidental.

Voluntary Human Intervention

This assesses if there was voluntary human intervention in the chain of causation.

dresslers 6 factor test CL

1) foreseeability 2) voluntary human intervention 3)De minimis 4)responsive or coincidental 5)apparent safety 6)omissions

De Minimis Contribution

This evaluates whether the defendant's conduct was merely a minimal contribution to the prohibited result.

Intended Consequence

This checks if the result was the intended consequence of the conduct.

Apparent Safety

This considers whether the victim had reached a state of apparent safety.

Omissions in proximate cause

Omissions by a third party generally do not count as proximate cause.

CL determining if an intervening cause is a superseeding cause

Dressler's six factor test

MPC in determining if an intervening cause is a superseeding cause

when conduct is the cause of the result, when purposefully or knowingly causing a particular result is an element of an offense, when does recklessly or negligently

MPC examples of involuntariness

• Reflex or convulsion

• Bodily movement during unconsciousness or sleep

• Conduct during hypnosis or resulting from hypnotic suggestion 

• A bodily movement that otherwise is not a product of the effort or determination of the actor, either conscious or habitual (MPC specifically states that habitual actions are voluntary) 

• Actions forced by 3rd parties

Conduct as Cause

Conduct is a cause of a result when it is an antecedent without which the result would not have occurred, and the relationship satisfies additional causal requirements imposed by the Code or law defining the offense.

Actual Result

When purposefully or knowingly causing a particular result is an element of an offense, the element is not established if the actual result is not within the purpose or contemplation of the actor unless the actual result differs from that designed or contemplated.

Harm

A different thing is harmed or if the harm that was intended would have been more serious than the harm caused.

Same injury

Same injury or harm as intended and is not too remote in its occurrence to have a just bearing on the actor's liability.

mens rea

the knowledge that prohibited action would be completed by the defendant's action. The mental aspect of a crime

Proof of mens rea

It is permissible for juries to conclude that the defendant intended the natural consequences of his/her actions.

Motive

You do not have to prove someone's motive but motive can be evidence of purpose. Motive is not the same thing as purpose.

General presumption of subjective fault

Requirement against strict liability unless legislative intent is clear.

Subjective fault

instances where the defendant had some awareness of the risk of their actions (recklessly, knowingly, and purposely)

Objective fault

synonymous with negligence; instances where the defendant had no awareness of the risk of their actions but the trier of fact compares the defendant to the standard of an objective “reasonable person”

Purposefully (MPC)

1.  A person acts purposefully when

   1. If the element involves the nature of his conduct, It is his conscious objective to engage in criminal conduct or cause the result

   2. If the element involves the attendant circumstances, he is aware, believes, or knows those circumstances exist

Attendant circumstances

If the element involves the attendant circumstances, he is aware, believes, or knows those circumstances exist.

Knowingly (MPC)

If element involves the nature of conduct or attendant circumstances he is aware that his conduct is of that nature or that such circumstances exist

If the element is result of conduct, he is aware that his conduct will cause such result

Result of conduct

If the element is result of conduct, he is aware that his conduct will cause such result.

Recklessly (MPC)

1. He consciously disregards a substantial and unjustifiable risk that the material element exists or will result from his conduct 

2. The risk must be at such a degree in which it involves a gross deviation from the conduct of a law abiding person in the actors situation

Gross deviation

The risk must be at such a degree in which it involves a gross deviation from the conduct of a law abiding person in the actor's situation.

Negligently (MPC)

1. He should be aware of the substantial risk that will result from his conduct 

2. The risk must be in such a nature that his failure to perceive it considering the circumstances, involves a gross deviation from the standard care that a reasonable person would observe in the actors situation

Standard care

The risk must be in such a nature that his failure to perceive it considering the circumstances, involves a gross deviation from the standard care that a reasonable person would observe in the actor's situation.

Intentionally/wilfully (common law) is synonymous with…

Synonymous with purposely and knowingly.

recklessly in MPC is synonymous with…

malicously

Specific intent

Usually means a crime that contains in its definition a special mental element above and beyond the mental state required with respect to the actus reus of the crime.

General intent

Usually means the mental state that relates solely to the social harm of the offense.

MPC 2.02(4)

Where law prescribes culpability element without distinguishing among the material elements, such provision shall apply to all elements unless a contrary purpose plainly appears.

Public welfare offense

offenses with no mens rea element

MPC and strict liability

If no mens rea listed, assume recklessness.