CRIMINAL LAW OUTLINE

Dalakian | Pfaff | Fall 2016

Objective Elements
 Conduct – action; bodily movement (or omission)
 Result – thing changed
 Circumstance – thing beyond control

OBJECTIVE ELEMENT CULPABILITY LEVELS

Conduct Result Circumstance
Purpose conscious object to conscious object to cause the KNOWING: aware of such
engage in the conduct result circumstances or hopes they
exist
Knowing aware that conduct is aware of practical certainty that aware of high probability
of that nature conduct will cause the result that circumstance exists
Reckless N/A (Elevate to consciously disregards consciously disregards
knowing; conduct substantial and unjustifiable risk substantial and
can’t be reckless) that the element will result from unjustifiable risk the
conduct element exists
Negligent should be aware of a substantial should be aware of a
N/A and unjustifiable risk that the substantial and unjustifiable
element will result from conduct risk that the element exists

ELEVATIONS:
ATTEMPT & CONSPIRACY
MPC:
MPC Narrow MCP:
Common Law (a) impossible &
(Utah) (b) failed attempt
(c) substantial step
Conduct ^Purpose ^Purpose ^Purpose X
Result ^Purpose ^Purpose X ^Knowledge
Circumstance ^Purpose X X X

COMPLICITY -> elevate conduct to purpose

STATUTORY CONSTRUCTION

Primary: Textual Canons [LATIN]

 Expressio (Inclusio) Unius / Exclusio Alterius – inclusion of one term excludes another
o No bikes, motorcycles & scooters  cars probably allowed
 Ejesdem Generis – words are known by their friends
o If like-term included, term is the kind of thing statute is talking about.
  Specific controls the general
 Different language implies different meaning
o “deadly” weapon, sexual abuse vs. abusive sexual conduct
 Scrivener’s error – court edits clear typos

Secondary: Look at Legislative Intent when ambiguous

 Many minds involved (“they”, not “it”)
 Policy arguments matter
 Must be read to not violate the constitution

GENERAL PRINCIPLES
Actus Reus – the criminal act
Mens Rea – the thought behind the act

Legislatures enact, judges interpret, prosecutors enforce, juries enforce/nullify, police arrest.

Criminal vs. Civil Law

 Torts looks at conduct, Crim looks at intent
 Beyond reasonable doubt vs. preponderance of evidence
 Torts brought by fellow citizen, Crim by the state.
 Negligence in Crim: to resolve loss of self esteem; failure to think is almost intentional; need to
stigmatize.
 Signal from Crim law is clearer than Tort;
 De minimus crimes can be covered in tort to not waster resrouces

Instrumental Goals
 Intentional harms: hard to detect because people flee
 Externalities: cost or benefit x imposes on y but doesn’t feel
o Positive externalities to rehab, deterrence, incapacitation
 State can: Ensure fairness; Prevent private justice (batman); Prevent crime displacement (better
to solve problem than to displace)
 Delegated revenge & self-esteem for victim who can’t afford their own justice
THE LEGALITY PRINCIPLE

1) No ex post facto laws (notice)

 Law is backwards looking, can’t be judged for past conduct by future rules
o Civil law (commitment) is forward looking (deterrence)
 Punishment reflects crime committed, not what might be committed

2) No common law crimes (notice)

 Directly follows no ex post facto
 Legislature should decides on crime

3) Void for vagueness (notice)

 Notice must be meaningful; due process

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  Vagueness = unconstitutional
 Ambiguity calls for judicial clarification

4) Rule of Lenity (not in NY)

 If statute ambiguous, interpret in favor of defendant
 Rule of Fair Import: judge starts with what statute/legislature is trying to accomplish
(pragmatic) to interpret in a way that makes sense.

Benefits
 Notice & procedural fairness:
o malum in se: wrong in itself
o malum prohibitum: wrong because prohibited
 Effective deterrence (avoid over deterrence; blurry lines make people more fearful of acting at
all)
 Promotes democracy: legislature speaks for people
 Avoid judicial abuse of discretion

Concerns
 Lack of flexibility in application by judges; morality not describable in concrete terms
o Technicalities can abound
 Who should be on notice?

THEORIES OF PUNISHMENT

Deterrence
 prevent new crime in the first place
 prevent past criminal from committing future crimes
 forward looking

Incapacitation
 Third party restricts future actor
 Cost-benefit analysis
 Punishment vs. prevention

Rehabilitation
 Correctional; more expensive than prison
o Long-term savings?
 Restorative justice
o Wardens prefer this

Just Deserts
 Eye for an eye
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  Morally required/justified\
 Backward looking

Objective (based on the reasonable person)

Subjective (based on the actor’s situation)

CULPABILITY

Levels of Mens Rea

 Purpose (subjective)
o (result & conduct) conscious object to engage in or cause
o (circumstance) aware or hopes it exists
 Knowing (subjective)
o (result) practically certain
o (conduct & circumstance) aware
 Reckless (subjective)
 Negligent (objective – reasonable person)
o (result & circumstance) conscious disregard for substantial & unjustifiable risk
o (conduct) no mens rea
o Should be aware of a substantial and unjustifiable risk
o Gross deviation from a reasonable person in that situation (somewhat individualized)
o Too objective: strict liability for simpletons
o Too subjective: no negligence anymore
 Strict Liability
o Statutory rape, felony-murder, drugs
o EPA regulations
o Greater care (overdeterrance?)

Gap-filling
 Always default to minimum of recklessness
 Specific controls the general

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Concurrence
 Mens rea must exist at the time of the act
 Transaction approach: what were they trying to do? Mens rea window
o Narrow concurrence (at time of each act) v. transactional concurrence (overall goal)

Blockburger Test
 Where the same act…constitutes a violation of two distinct statutory provisions, the test to be
applied to determine whether there are two offenses or only one is whether each provision
requires proof of an additional fact which the other does not”
o Ex: Assault and aggravated assault  you have to prove assault to get to aggravated
assault
o Ex: Grand theft and horse theft

AGGRAVATION

 Ability to raise level of a crime based on how the judge/jury/prosecutor feels about it
 Used for extreme indifference to human life (depraved heart)
o Recklessly cause death + extreme indifference = murder

Felony-Murder Rule
 When someone is killed (intentionally or not) during the commission of another felony,
perpetrator and/or co-felon is liable for first degree murder
 Form of imputation; Form of deterrence
 25% of all murder convictions today
 impute mens rea of another; impute acts themselves
 Co-felon lives are worthless
 Transactional concurrence

MITIGATION
Provocation
 Common law “heat of blood”
 Can only kill provoker
 Temporal proximity required
 Sufficiency: Some things can’t provoke
 How similar to a reasonable person?
 Self defense = acquittal; provocation = reduced to manslaughter.

Extreme Emotional/Mental Disturbance (EED/EMD)

 Ex: murder  manslaughter
 “Individualized objective standard”
 Lax temporal standard, no target restrictions
 States either have ED or provocation, not both

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Diminished capacity
 No punishment (absent-element defense)
 List of specified impairments (age, mental ability)
o Pro-prosecution because limits amount of impairments available
Policy Questions:
 Can provocation be deterred?
 Individualization: different people have different tolerance/anger levels
CAUSATION

But-For Cause
 Simple, but without boundaries
Proximate Cause
 Tight connection (sufficiently close)
 Foreseeability
 Intervening actor
o Breaks causal chain
o Must be free will actor (voluntary)
Harm Principle
 Actions of individuals should only be limited to prevent harm to other individuals
 Causation matters if harm matters
 Objective vs. Subjective:
o Objectivist: focus on observable harm  What objectively happened?
 Impossible? No harm.
o Subjectivist: focus on unobservable intent (MPC tends to be this) – What did you
intend to do?
I. Anti-Harm Principle
 Consequentialism (care about intent, not what was is actually done)
o Kadish: greater need to deter, rehabilitate, incapacitate when there’s harm?
o Creates a favorable lottery. Ability to accomplish your thoughts matters b/c limited
resources
 Just deserts:
o Fault is intent
o Problem of “moral luck”
 Example medical care – risk of death decreases with proximity to hospital 
so should shooter benefit b/c you survived b/c you were close to hospital?
 Judicial economy: easier to police? Substantial step needed to prove intent?
II. Pro-Harm Principle
 Delegated Revenge – magnitude of harm matters to the victim (does Torts cover this? Self-
esteem.)
 Salience (Kadish): Sight of harm arouses a degree of anger and resentment that exceeds fear
of harm
 Just deserts: evil is harm, not intent
 Evidentiary issue: all jury sees is objective evidence (don’t know what people are thinking)
and harm is actual evidence
o More severe harm, more likely the harm was intended?

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 ATTEMPT

“Attempt” is not a crime; “Attempted ___[murder]____”

Tests: Closeness to Completion

 Proximity test (objective)
o Physical/dangerous proximity
o Indispensable element (every necessary piece in place?)
o Probable desistance (could you still change your mind?)
 Res ipsa loquitor (objective): “the thing speaks for itself”
o Unambiguous intent
 Substantial step test (subjective) (MPC)
o How far from mere thought? (lying in wait, etc.)
o More than thinking about it; sliding scale based on potential impact of crime
o Much further from the crime than the other tests

COMPLICITY & FACILITATION

Accomplice liability
 Charge accomplice with crime itself (same as primary)
 Purpose towards conduct, no elevation for result or circumstance

Facilitation (NY)
 Crime in itself (two class levels below actual crime)
 Mens rea level: knowing (somewhere below purpose)

CONSPIRACY

 Agreement is key – evidence required (for implicit or explicit)

 Group behavior creates more efficiency and thus more risk/danger; economies of scale
 No substantial step necessary, just agreement
 Overt act < substantial step
 Purpose towards conduct and result
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Super-attempt
 An agreement is clear indication of intent (no need for substantial step, still need overt act and
agreement)
 More comfortable moving in sooner
 Merger: convict of crime and conspiracy as one crime. Charge with both, but convict for one
merged crime.
 If agree to crime, take no steps, then there is no crime, but there is a conspiracy.

Standalone Offense
 conspiracy is a unique harm that can be punished as its own crime.
 Stacking: convict for crime and conspiracy separately

Wharton’s Rule
 Some crimes already require 2+ people to be involved (restraint of trade); conspiracy is built in

Pinkerton
 Conspirator is liable for any reasonably foreseeable crime committed by a co-conspirator, in
furtherance of the crime
 Co-conspirator need not act at all or have culpability (Pinkerton was in prison during crime)
 MPC doesn’t adopt. Gap-filler in some jurisdictions.

Conspiracy & Accomplice

 Every accomplice may be a conspirator, but not every conspirator is an accomplice.
o Conspirator, not accomplice: Agree but do not help.
o Accomplice, not conspirator: Help, but do not agree (much rarer)
 If you can’t reasonably foresee a crime that’s part of the conspiracy, you’re not liable for it as an
accomplice.
 Conspiracy requires agreement, complicity does not

Interstate
 letters to theaters for price collusion (restraint on trade)
 Implicit agreement by abiding by rules of note

Unilateral vs. Bilateral

 Unilateral: Don’t have to agree to the same crime, just have to agree even if you think you’re
doing something different
o You’re guilty for what you agree to commit
 Bilateral: Must agree to same thing (depends on jurisdiction)

Chain or Wheel
 “put the rim around the wheel”
 Each party must be able to reasonably foresee the other conspirators for one big conspiracy,
otherwise separate

Withdrawing
 Everything in your power to thwart the conspiracy – affirmative steps

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Every accomplice may be a conspirator, but not every conspirator is an accomplice.

JUSTIFICATIONS
Act-based. No liability because act is good.

Lesser Evils (General)

 Conduct an actor believes necessary to avoid a greater harm or evil is justifiable if:
o The law defining the offense does not already provide an exception dealing with the
specific situation (defensive force).
o No legislative purpose to exclude the justification.
 Components:
1. Protected Legal Interest (yourself, other, property)
2. Necessity (no choice; can’t retreat)
 Temporal necessity: imminent threat (narrow) or immediately necessary (need to
act now)
 Harm necessity: does it effectively reduce the harm?
3. Proportionality (no deadly force to protect property)
 Balance harms: deadly force? retreat?

Defensive Force (Specific)

 Only two levels: force & deadly force
 Types of interests:
o Property
o Another person
o Self-defense

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  Components:
1. Triggering Act
 Illegal, active physical aggression.
 Subjective view of threat – the actor reasonably believes that such force is
immediately necessary.
 Can’t retaliate hoping someone will escalate the situation.
 Timing: When is responding force offensive vs. defensive?
2. Necessity
 Immediately necessary (MPC)
3. Proportionality
 No deadly force to protect property
 Can you retreat?

EXCUSES
Actor-based. Act is wrong, but no liability because actor not culpable.

Disability
 Inability to control movement or understand action.
 Includes duress.

Mistakes
 Official misstatement by an appropriate top official, statute, judge, administrator.
 Unavailability: once a law is published, there is notice; access not required.
 Ignorance rarely a defense (unless knowledge of law is requirement for crime)
o NJ just requires a diligent/good faith attempt to find the law

Insanity
 Legal, not medical determinations; juries decide if insane
 Intoxication NOT an excuse
 Insanity only matters when you can otherwise convict the actor of a crime; if mens rea already
negates the crime because can’t be purposeful with a disease, then defense insanity isn’t
necessary.
 Four tests; only one used in each state:

I. McNaghten Test
a. Cannot appreciate wrongfulness of act (most restrictive)
b. Cognition completely impaired (absolute/100%)
c. NO Control prong necessary
II. Irresistible Impulse Test (IIT)
a. Either cognition OR control is completely impaired, solely by insanity
b. Completely incapable of understanding or controlling behavior.
III. Durham/Product Test
a. Insanity is “but-for” cause for either cognition OR control defect
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 b. Most lenient
IV. ALI Test
a. Cognitive OR control prong
b. Insanity need to be the sole cause
c. Insanity only needs to “substantially impair” defendant
i. The act is not irresistible, but profoundly difficult to prevent.
V. Abolition of Defense
a. Insanity just negates mens rea, not a separate defense.

Guilty but Mentally Ill (GBMI)

 Treated like guilty verdict – just makes jurors feel better about convicting

Not Guilty by Reason of Insanity (NGRI)

 Not acquittal
 Go to mental hospital indefinitely

People don’t use insanity defense because:

 Don’t believe they are insane
o Social stigma
 More time locked up – doctor’s don’t let insane patients out easily (no fixed sentence term)

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 POLICY

 Why include negligence as a level of culpability if there can be no intent?

o Criminal negligence as deterrence?
 Remove strict liability for any crime? Over-deterrence? Harmful without intent?
 If provocation is reasonable, why is provoked killing a crime at all?
 Hydraulic discretion: cut discretion for one actor, others get that power.
o Judge/Jury vs. legislature on mitigation; aggravation
 The things we find most shocking pose the smallest risk (harm principle)
 Is our goal to prevent crime or to reduce crime in a cost-beneficial way?
 Short, intense punishment is better for deterrence; long sentences lead to adaptability.
 Does felony-murder rule really deter?
 Should cultural background/genetics be a mitigating factor?
 Why look at mitigations as part of substantive crime rather than at sentencing?
 Does harm or intent mater? Which is the evil? Which should we deter?
 How should attempts be punished? People favor proximity test over substantial step; and less
punishment.
 Only judge/jury should make call on defensive force proportionality, not legislature, because
nobody can weigh the proper proportionality in the moment. Better ex post.
 Harm Principal: Objective vs. Subjective
 Gang Laws: grouping people into real gangs makes them have a stronger identity. Should just
call them criminals.
 Introduce scientific processes into the courtroom – reinvent the jury (boiling hand/trial by
combat  jury  future?) (Actuarial models)
 Does merger get around double jeopardy?
 Which terrible thing to we prefer? Is the alternative better or worse?
 High profile/tough cases make bad law

TIPS

 Don’t invoke both defensive force and lesser evils.

 Charge with highest you can, then explain why not higher (if there is higher)
 1) Spot issue; 2) find complication; 3) explore what additional info would help resolve an issue;
4) how would you work your way out of a legal wrinkle?
 Read statute titles first, then facts, then full statutes.
 Monitor question language: list all possible charges vs. what can you convict for?
 Blockburger: explain that you would charge with everything, but can’t convict all
 Specific controls the general
 Criminal justice “system”
 Treat a dog like a bullet

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