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Table of contents criminal Law Outline

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Criminal Law Outline

  1. General Ideas and Definitions

    1. Terms

      1. Circumstantial Evidence

        1. Evidence that would cause someone to infer that someone did something

      2. Direct Evidence

        1. Evidence, like a direct witness, that directly shows someone did something, or smelled someone doing something, or saw someone doing something, heard, etc.

    2. Infamous Crime

      1. Often by the possible punishment and not by actual punishment

      2. There must be a grand jury indictment in order to punish for an infamous crime

        1. Some states go by possible punishment, some states go by actual punishment, and some states go by the crime to determine infamy

      3. Most felonies today are infamous crimes

    3. Classification of Crimes

      1. State v. Federal

        1. States are not bound to classify crimes based on federal definitions if they are different from the definition given in the state. [Melton v. Oleson]

        2. Important for procedural reasons because a felony is prosecuted in a state superior court and misdemeanor in a municipal court

      2. Model Penal Code: three classifications

        1. Felonies, Misdemeanors, and petty misdemeanors

      3. Main Classifications

        1. Felonies and Misdemeanors

          1. Most states, felonies are punishable by death or imprisonment for more than one year, and misdemeanors are punishable for less that one year imprisonment

        2. Malum in se

          1. An offense in and of itself (murder, etc.)

          2. Involves criminal intent or moral turpitude

        3. Malum Prohibitum

          1. An offense because there is a statute against it

      4. Cases

        1. Melton v. Oleson

          1. D convicted of 3 violations of federal liquor laws. The offense was a felony by federal standards, b/c it was punishable by 2 years in prison. D suffered many harms b/c the state classified him as a felon.

          2. Held, states are not bound to follow federal classifications of crimes

          3. Rationale:

            1. Federal law classifies felons by possible punishment, state law classifies by punishment given. To hold Montana bound by foreign classifications of crimes would result in glaring injustices in many cases.

        2. US v. Moreland

          1. D charged in DC with willful failure to provide support of minor children, punishable by fine not more than $500 or by imprisonment in a workhouse not more than 12 months. 5th Amendment requires that “infamous” crimes be charged by a grand jury indictment, but D was charged by information.

          2. Held, a federal crime that can be punished by six months imprisonment must be charged through the grand jury system

          3. Rationale:

            1. 5th amendment specifies that infamous crimes must be charged by indictment. “Infamy” is determined by punishment possible, not by the sentence actually imposed.

            2. Imprisonment at hard labor is an infamous punishment.

          4. Dissent:

            1. It is imprisonment in a penitentiary, not a provision for hard labor, which renders a crime infamous. Imprisonment is the modern substitute for death penalty and other infamous crimes when the 5th amendment was adopted.

          5. Comment: A criminal action can be instituted by information in a state court.

    4. Theories of Punishment

      1. Incarceration/Incapacitation

        1. Can commit no more crimes in jail

      2. Special Deterrence

        1. Deter this particular criminal

      3. General Deterrence

        1. Deter criminals in general

      4. Retribution

        1. To vent societies sense of outrage and need for revenge

      5. Rehabilitation

        1. Mold criminal into a person who, when leaving jail, will fit into society

    5. Ex posto facto laws

      1. General

        1. Prohibited by the constitution

      2. Supreme Court declares ex posto facto law is one that operates retroactively to:

        1. make criminal an act that when done was not criminal

        2. aggravate a crime or increase the punishment therefore

        3. Change the rules of evidence to the detriment of criminal defendants as a class

        4. Alter the law of criminal procedure to deprive criminal defendants of a substantive right

    6. Statutory Interpretation of Criminal Statutes

      1. General

        1. Penal laws should be construed strictly, but not so strict that they circumvent the purpose of the legislature

      2. Plain Meaning Rule

        1. When language is plain and meaning clear, court must give effect to it regardless of whether they think it a good law

        2. Advantages

          1. Court is not trying to interpret the legislative intent, but to interpret what the statute itself means

          2. It simplifies the role of the court

          3. The law becomes more predictable

        3. Disadvantages

          1. Could reach an absurd result inconsistent with reality

          2. Gives the court more flexibility, b/c the court can tailor the legislative purpose to the case before it (where the leg. most likely didn’t consider this fact)

      3. Golden Rule

        1. Court must give deference to the plain meaning, unless they find it will lead to injustice, oppression, or an absurd result

      4. Social Purpose Rule

        1. Attempt to determine the legislative purpose, never eliminating the language of the statute

        2. Where to look to find social purpose

          1. Legislative history

          2. The language of the statute itself

          3. The general historical context

          4. Common law precedent

          5. Other statutes to determine what they meant it to cover (more or less)

        3. Problems with looking to legislative history

          1. Can be very inaccurate

            1. It is unlikely that the acquiescence of so many men necessarily proves that they all meant exactly one thing

          2. Unfairness

            1. The common man, who would want to know what the law is, doesn’t have access to it

          3. Gives Broad Interpretive power to judges

      5. Ujusdem Generis Rule

        1. When particular words of description are used, followed by general words, the latter are to be limited in their meaning so as to embrace only a class of the things indicated by the particular words

      6. Express Mention, Implied Exclusion Rule

        1. Expression of one thing means exclusion of another thing

      7. Special Statutes take precedent to General Statutes

        1. A special statute does not supplant a general statute unless ALL the elements of the general statute are included in the special statute

      8. Ambiguity

        1. Ambiguous Statutes are construed in favor of Defendant

          1. You want to make sure that we are not putting someone in jail for a crime they didn’t do; give all benefits to the Defendant

    7. Importance of Stare Decisis

      1. Predictability

        1. Not reinventing the wheel in each case that comes before the court

      2. Limit renegade judges

        1. If the statute was passed by Congress, an elected body, we don’t want judges who are likely unelected forming those laws by subjective judgments

      3. Precedent

        1. Controlling

        2. Or persuasive

          1. Court can overrule itself and disapprove of another court

  2. Mens Rea

    1. General

      1. Acts alone do not constitute a criminal offense, even if they cause harm

      2. A vicious will is the mental state required for the crime

      3. Rationale:

        1. Retribution: This person is more deserving of punishment

        2. Deterrence: The more a person considers the wrongfulness of her actions, the more the risk of punishment can serve to deter the defendant’s act

        3. Rehabilitation: The more they intend to violate the law, the more they need retribution.

        4. Incapacitation: Those that consider there crimes need to be taken off the streets more than others

    2. Terminology

      1. Maliciously:

        1. The D realizes the risks her conduct creates and engages in the conduct anyway

        2. MPC Analogy: Recklessness

      2. Intentionally

        1. The D has the purpose to cause a specific harmful result, or

        2. Some jurisdictions: The D need only be aware that his acts may cause a specific result

      3. Negligently

        1. Criminal is a greater than Civil negligence

          1. The careless must be a higher degree than tort negligence

          2. Not exercising a standard of care that a reasonable person would under the circumstances

      4. Willfully

        1. Doing an act with the purpose of violating the law, or sometimes

        2. Intentionally doing an act knowing its likely consequences, or sometimes

        3. D intended his act and that act had harmful or illegal consequences

    3. General v. Specific Intent Crimes

      1. General Intent

        1. Crimes that only require that the D intend to commit an act are referred to as “general intent crimes.” The D need not intend the consequences.

        2. MPC Equivalent: Recklessly

        3. It can be inferred from the D’s actions. Lowest level of crime.

        4. E.g. Battery

      2. Specific Intent

        1. The D must act with either the intent to commit a crime or an intent to commit a specific result.

          1. Burglary: The D must enter the building with the intent to commit a felony therein

        2. MPC Equivalent: “Purposely”, and sometimes “Knowingly”

        3. Statute may use the words “with intent to” or the word “intentionally”

        4. Cases

          1. State v. May (Forgery)

            1. D, in an attempt to get a loan, forged his fathers signature as a cosigner on a note. He presented the note and received a check for $4,000. D was tried and convicted of “uttering and passing” and forging the note with intent to defraud. The evidence indicated that D intended to repay the loan, and that he intended to, at a later date, obtain the proper signature of his father. D appeals, claiming he did not have the intent to defraud.

            2. Held, A person who knowingly forges a note and presents it to obtain a loan has the intent to defraud if he intends to pay back the loan.

              1. Intent to defraud means a purpose to use false writing as if it were a genuine in order to gain an advantage. It does not matter that D intended to repay the loan, or though his father would ratify the forgery. The public interest in the integrity of instruments prohibits such use of false writings.

              2. The jury was properly instructed as to the law that a person who passes a recently forged document is presumed to have forged it or to have the necessary intention to defraud. This presumption is rebuttable, but D did not rebut it here. The conviction was proper.

          2. Dobbs Case (Burglary)

            1. D broke and entered into the stable (dwelling house) of another to injure a race horse. Injuring a horse was a misdemeanor. The horse died, however, and killing a horse was a felony. D was charged with common law burglary.

            2. Held, a person may not be convicted of burglary if he intended to commit only a misdemeanor.

              1. D did not have the intention to commit a felony when he entered the house, so he did not commit burglary. However, D was later indicted for killing the horse and capitally convicted.

              2. Even though D ended up committing a felony, such was not his specific intent.

          3. State v. Connors(Conditional Threat)

            1. Connors and five other stated men threatened several men from the International Association to “take off their overalls and go down and join the United Association, threatening that unless this demand was met with they would kill the men. P’s contest the instruction on appeal, claiming that b/c intent was coupled with an alternative condition, the requirement was met.

            2. Held, a threat of felonious crime and the present ability to commit that crime, coupled with a conditional demand that the D does not have a right to make, satisfies the specific intent needed to convict on assault with intent to commit a felony.

              1. P argues that the condition which accompanies the threat negatives the existence of that positive and specific intent which, under the law, is a necessary element in the offense charged.

              2. P relies on a case, Hairston v. State, that says that a man had his mules stopped along a public highway, and he told the person stopping them to move or he would shoot. The SC of Mississippi found that there was no specific intent, only a conditional offer to shoot, based upon a demand which the party had a right to make.

              3. In this case, the party did not have a right to demand for Bell to take off his overalls and quit work, so this case is distinguished. Therefore, he committed the crime

      3. Unlawfully

        1. It simply means that there is no legal excuse for the D’s behavior.

    4. MPC Approach § 2.02

      1. General

        1. Courts can be receptive to the MPC b/c it is difficult to define common law terms

      2. Purposely

        1. 2.02(2)(a) – A person acts purposely if it is the D’s goal or aim to engage in particular conduct or achieve particular results

          1. E.g. Burglary: the phrase “intent to” requires the D enter w/a specific purpose in mind

          2. E.g. The D wants to kill someone so he aims the gun and pulls the trigger

      3. Knowingly

        1. 2.02(2)(b) – A person acts knowingly if she is virtually or practically certain that her conduct will lead to a particular result.

          1. E.g. D puts a bomb on a plane with the goal to destroy cargo aboard, but is virtually certain the plane’s passengers will be killed as well.

          2. Common Law: Intentionally, willfully, or sometimes specific intent.

        2. State v. Beale

          1. D, an antique shop operator, sold property the day after it had been identified by the purported true owner as being “possibly stolen” and officers had asked his wife not to sell the piece. D was tried for the offense of knowingly concealing stolen property. D claimed he had purchased the items from reliable people and that he had receipts to prove it. The TC denied D’s request for a jury instruction that D would not be guilty if he in truth believed he had lawful possession of the goods, despite the circumstances. D was convicted and appeals.

          2. Held, when a statute specifies as an element of the offense that the D conceal property “knowing it to be stolen,” the prosecutoin must prove that the D himself had such knowledge.

            1. The jury was instructed that the requirement of guilty knowledge was satisfied if either D believed the goods were stolen or a reasonable person under those circumstances would have believed that they had been stolen. In other words, either an objective or subjective test would satisfy the requirement of knowledge.

            2. Although the states differ on this issue, the majority rule requires the prosecution to meet the subjective test. This is the better rule in criminal cases, because the essence of the criminal offense is the D’s intentional wrongdoing.

            3. D need not have direct knowledge or positive proof that the goods were stolen, so long as he was aware of circumstances which caused him to believe they were stolen. The jury may look to the circumstances to assess D’s personal knowledge, but they may not find D guilty solely on the basis of what a reasonable person believed.

      4. Recklessly

        1. A person acts recklessly if he or she realizes there is a substantial and unjustifiable risk that his or her conduct will cause harm but consciously disregards the risk.

          1. E.g. D drives 60 mph past a schooling zone; although the D doesn’t intend to hit anyone, he realized the risk that he may do so and continues speeding away.

        2. Recklessly v. Knowingly

          1. The difference between “knowingly” and “recklessly” is a matter of degree. If a D is so aware of a risk that he or she is virtually certain it will occur, then the D is acting knowingly. However, if the D is aware of a risk, but not as certain it will occur, the D may be acting recklessly

      5. Negligently

        1. A person acts negligently if he or she is unaware and takes a risk that an ordinary person would not take.

          1. E.g. The D is unaware that his child is suffering from a life-threatening illness and fails to seek medical treatment. An ordinary person clearly would have been aware of the risk, and sough care

        2. Negligence is judged by an objective standard. The focus is not on the D’s state of mind, but what risks the D should have known he was taking.

        3. Under the MPC, crimes are rarely set at the “negligently” standard – too low

        4. Chart:

Common Law

Model Penal Code



Specific Intent


General Intent

Reckless of Knowledge


Purpose or Knowledge

With intent to



Purpose or Knowledge

    1. Determining the Mens Rea of a crime

      1. General

        1. Frequently, a statute will describe the mens rea level for a crime.

        2. If not, use traditional rules of statutory construction to determine what mens rea.

    2. Strict Liability

      1. Mala Prohibita Offenses

        1. Those not inherently bad that are proscribed by statute

        2. Mens rea does not apply to mala prohibita offenses often

        3. Must consider whether the statute has eliminated the mens rea requirement in a true crime (and what is the effect of that)

      2. Strict liability most often employed:

        1. Food and drug control, traffic regulation, restrictions on pollution and navigation, animal cruelty, regulation of alcohol and liquor, and explosives and hazardous chemicals

      3. Cases

        1. The Queen v. Stephens

          1. D owned a operated slate quarries near a river. D’s employees stacked rubbish from the quarry near the river bank, from whence it slid into the river. Eventually, navigation in the river was obstructed by the debris, and D was indicted for obstructing the river. D was convicted by the jury, but obtained a ruling for a new trial on the ground that D could not be held liable for the acts of his employees.

          2. Held, a person may be held criminally liable for creating a public nuissance when he had no intention of doing so.

            1. Although this case proceeded in criminal form, in substance it is a civil proceeding. The only reason to proceed under criminal law is that the nuissance affected the public at large rather than one or two isolated individuals. Without recourse to the criminal law, the public interest could not be protected.

            2. The purpose of the indictment is to prevent recurrence of the nuissance. All that needs to be proved is that the nuisance was caused by the working of D’s quarry. It does not matter whether D knew of the disposition of the rubbish, or even that he instructed his employees to dispose of it another way. The indictment is not intended to punish D, but to stop the nuisance.

    3. Mala Prohibita v. Mala in se

      1. Commonwealth v. Oshevski

        1. D had a trucking business. One of D’s employees picked up a load of coal and had it weighed. He received a slip showing a weight of 15,200 pounds (15,750 was the maximum allowed). The employee left the truck with D, who drove it into town. D was stopped by the police and had his truck weighed at 16,015 pounds. D was charged with violating the vehicle code, and claims as a defense that he did not know the truck was overnight.

        2. Held, a person may be held criminally liable when he believed in good faith that he was not violating the statute.

          1. Common law crimes are mala in se, meaning they are crimes that are bad in and of themselves. Other crimes are acts made criminal by statute, and are called mala prohibita. This means that the acts are not crimes because they are inherently bad, but rather because the legislative authority makes the act criminal.

          2. Crimes which are simply mala prohibita do not require any mental element. One who does an act in violation of the statute is guilty of the crime regardless of his intent of belief. Subject to constitutional limits, the legislature may punish any act that it determines should be punished.

          3. The evidence is clear that D had his truck overloaded, and therefore he is guilty as charged. He is sentenced to pay a fine of $25 plus the costs of prosecution, and if he defaults, he must be imprisoned for between one and two days in the county jail.

    4. Respondeat Superior

      1. There is no respondeat superior doctrine in criminal law with regard to malum in se offenses. The state of mind of an employee, for example, may not be imputed to the employer. Such is not the case in strict liability offense, however. Many of these offenses involve the sale of goods, and employers may be held criminally liable for the acts of their salespersons.

      2. Commonwealth v. Koscwara

        1. D was the licensee and operator of a tavern. D’s employees sold liquor to minors out of D’s presence and without his personal knowledge. The Liquor Code prohibited such sales, and D was convicted of the offense. D was sentenced to three months in jail and fined $500. He appeals.

        2. Held, a business owner may be criminally liable for illegal sales made by his employees without his personal knowledge.

          1. At common law, the respondeat superior doctrine would not apply in a criminal case because criminal liability was personal and individual. However, regulatory provisions in modern times rely on the criminal law for enforcement.

          2. Acceptance of a liquor license carries with it a high responsibility, including acceptance of vicarious liability for criminal violations by employees. The Liquor Code does not include a requirement of mens rea; thus, D’s intent is irrelevent.

          3. Due process forbids imprisonment which liability is imposed vicariously. D’s sentence must be modified to eliminate the imprisonment portion.

    5. Cases

      1. State v. Chicago, Minnesota, and St. Paul Railroad

        1. An engineer employed by the CMS Railway company failed to stop at a railroad crossing because of defective brakes. A statute provided that all trains had to stop, and imposed a fine on trains which did not stop. After a jury trial D was required to pay the fine. D appeals.
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