Examples & Explanations for Criminal

Law (Examples & Explanations Series)

8th Edition Richard G. Singer
Visit to download the full and correct content document:
https://ebookmeta.com/product/examples-explanations-for-criminal-law-examples-exp
lanations-series-8th-edition-richard-g-singer/
More products digital (pdf, epub, mobi) instant
download maybe you interests ...

Examples & Explanations for Criminal Law Ed 8 8th

Edition Singer

https://ebookmeta.com/product/examples-explanations-for-criminal-
law-ed-8-8th-edition-singer/

Examples Explanations Criminal Law 8th Edition John Q

La Fond Shima Baradaran Baughman Richard G Singer

https://ebookmeta.com/product/examples-explanations-criminal-
law-8th-edition-john-q-la-fond-shima-baradaran-baughman-richard-
g-singer/

Examples Explanations Civil Procedure Ed 8 8th Edition

Glannon Joseph W

https://ebookmeta.com/product/examples-explanations-civil-
procedure-ed-8-8th-edition-glannon-joseph-w/

Examples Explanations for Professional Responsibility

6th Edition W Bradley Wendel

https://ebookmeta.com/product/examples-explanations-for-
professional-responsibility-6th-edition-w-bradley-wendel/
CRISC Review Questions Answers and Explanations 6th
Edition Isaca

https://ebookmeta.com/product/crisc-review-questions-answers-and-
explanations-6th-edition-isaca/

CISM Review Questions Answers Explanations Manual 10th

Edition Isaca

https://ebookmeta.com/product/cism-review-questions-answers-
explanations-manual-10th-edition-isaca/

26 and Change Deacon Rie

https://ebookmeta.com/product/26-and-change-deacon-rie/

Dragonsworn Were Hunters 10 Dark Hunter 26 Hunter

Legends 29 Lords of Avalon 06 1st Edition Sherrilyn
Kenyon

https://ebookmeta.com/product/dragonsworn-were-hunters-10-dark-
hunter-26-hunter-legends-29-lords-of-avalon-06-1st-edition-
sherrilyn-kenyon/

Black Light The Menagerie Black Light Series Book 26

1st Edition Maren Smith

https://ebookmeta.com/product/black-light-the-menagerie-black-
light-series-book-26-1st-edition-maren-smith/
i

Criminal Law

EXAMPLES & EXPLANATIONS

ii
EDITORIAL ADVISORS
Rachel E. Barkow
Segal Family Professor of Regulatory Law and Policy
Faculty Director, Center on the Administration of Criminal Law
New York University School of Law
Erwin Chemerinsky
Dean and Jesse H. Choper Distinguished Professor of Law
University of California, Berkeley School of Law
Richard A. Epstein
Laurence A. Tisch Professor of Law
New York University School of Law
Peter and Kirsten Bedford Senior Fellow
The Hoover Institution
Senior Lecturer in Law
The University of Chicago
Ronald J. Gilson
Charles J. Meyers Professor of Law and Business
Stanford University
Marc and Eva Stern Professor of Law and Business
Columbia Law School
James E. Krier
Earl Warren DeLano Professor of Law Emeritus
The University of Michigan Law School
Tracey L. Meares
Walton Hale Hamilton Professor of Law
Director, The Justice Collaboratory
Yale Law School
Richard K. Neumann, Jr.
Alexander Bickel Professor of Law
Maurice A. Deane School of Law at Hofstra University
Robert H. Sitkoff
John L. Gray Professor of Law
Harvard Law School
David Alan Sklansky
Stanley Morrison Professor of Law
Faculty Co-Director, Stanford Criminal Justice Center
Stanford Law School
iii
Criminal Law
Eighth Edition

EXAMPLES & EXPLANATIONS

Shima Baradaran Baughman

Associate Dean of Research and Development Professor of Law and Presidential Scholar S.J.
Quinney College of Law University of Utah

Richard G. Singer
Distinguished Professor of Law, Emeritus Rutgers, The State University of New Jersey School of
Law

John Q. La Fond
Edward A. Smith/ Missouri Chair Emeritus in Law, the Constitution, and Society University of
Missouri–Kansas City School of Law
iv

Copyright © 2022 Shima Baradaran Baughman, John Q. La Fond, and Richard G. Singer

Published by Wolters Kluwer in New York.

Wolters Kluwer Legal & Regulatory U.S. serves customers worldwide with CCH, Aspen Publishers,
and Kluwer Law International products. (www.WKLegaledu.com)

No part of this publication may be reproduced or transmitted in any form or by any means,
electronic or mechanical, including photocopy, recording, or utilized by any information storage or
retrieval system, without written permission from the publisher. For information about permissions
or to request permissions online, visit us at www.WKLegaledu.com, or a written request may be
faxed to our permissions department at 212-771-0803.

Cover image: Illustration 51664352 © Vicvic13 / Dreamstime.com

To contact Customer Service, e-mail customer.service@wolterskluwer.com, call 1-800-234-1660,

fax 1-800-901-9075, or mail correspondence to:

Wolters Kluwer
Attn: Order Department
PO Box 990
Frederick, MD 21705

eISBN 978-1-5438-3936-4

Library of Congress Cataloging-in-Publication Data

Names: Baughman, Shima Baradaran, author. | Singer, Richard G., author. | La Fond, John Q.,
author.
Title: Criminal law / Shima Baradaran Baughman, Associate Dean of Research and Development
Professor of Law and Presidential Scholar, S.J. Quinney College of Law, University of Utah;
Richard G. Singer, Distinguished Professor of Law, Emeritus Rutgers, The State University of New
Jersey School of Law; John Q. La Fond, Edward A. Smith/Missouri Chair Emeritus in Law, the
Constitution, and Society University of Missouri, Kansas City School of Law.
Description: Eighth edition. | New York : Wolters Kluwer, [2021] | Includes bibliographical references
and index.
Identifiers: LCCN 2021033069 | ISBN 9781543839357 (paperback) | ISBN 9781543839364 (ebook)
Subjects: LCSH: Criminal law—United States—Outlines, syllabi, etc. | LCGFT: Study guides.
Classification: LCC KF9219.85 .S58 2021 | DDC 345.73—dc23
LC record available at https://lccn.loc.gov/2021033069
v

About Wolters Kluwer Legal & Regulatory

U.S.
Wolters Kluwer Legal & Regulatory U.S. delivers expert content and
solutions in the areas of law, corporate compliance, health compliance,
reimbursement, and legal education. Its practical solutions help
customers successfully navigate the demands of a changing environment
to drive their daily activities, enhance decision quality and inspire
confident outcomes.

Serving customers worldwide, its legal and regulatory portfolio includes

products under the Aspen Publishers, CCH Incorporated, Kluwer Law
International, ftwilliam.com, and MediRegs names. They are regarded as
exceptional and trusted resources for general legal and practice-specific
knowledge, compliance and risk management, dynamic workflow
solutions, and expert commentary.
vii

To my loves, Ryan, Kian, Darian, Milo & Joon

— S.B.B.

To Karen: For twenty-six years of laughter, and love

— R.G.S.

To my wife, Evelyn
— J.Q.L.
ix
 Summary of Contents

Contents
Preface
Acknowledgments

Chapter 1 The Sources and Limitations of the Criminal Law

Chapter 2 The Purposes of Punishment
Chapter 3 Actus Reus
Chapter 4 The Doctrines of Mens Rea
Chapter 5 Mistake
Chapter 6 Strict Liability
Chapter 7 Causation
Chapter 8 Homicide
Chapter 9 Rape
Chapter 10 Theft
Chapter 11 Solicitation
Chapter 12 Attempt
Chapter 13 Conspiracy
Chapter 14 Complicity
Chapter 15 Defenses: An Initial Survey
Chapter 16 Acts in Emergency: Justification vs. Excuse
Chapter 17 Defenses Based on Individual Characteristics

Table of Cases
Index
xi
 Contents

Preface
Acknowledgments

Chapter 1 The Sources and Limitations of the Criminal Law

Overview
Sources of Criminal Law
The Common Law as a Source of Criminal Law
Legislative Sources
The Model Penal Code as a Source of Criminal Law
Constitutional Sources and Limits
Limitations on the Criminal Law
The Principle of Legality
The Common Law in England
The Common Law in the United States
The Strengths and Weaknesses of Common Law
Crimes
Principle of Legality
Ex Post Facto
The Rule of Lenity
Void for Vagueness
The Burden of Proof
Examples
Explanations
Chapter 2 The Purposes of Punishment
Overview
Defining Punishment
The Purposes of Punishment
Utilitarianism
Deterrence
 Incapacitation
Rehabilitation
Empirical Critiques
Normative Critiques
Retribution

xii

The Relationship of the Theories

The Importance of Sentencing
“Civil” vs. “Punitive”
The Difference Between “Criminal” and “Civil”
Confinement
A Contemporary Example: Sexual Predator Laws
Examples
Explanations
Chapter 3 Actus Reus
Overview
The Common Law
Voluntary Act
Intangible Acts
Omission and Legal Duty
Moral Duty
Possession
The Model Penal Code
Voluntary Act
Omission and Legal Duty
A More Precise Definition for Actus Reus
Possession
Examples
Explanations
Chapter 4 The Doctrines of Mens Rea
Overview
 The Concepts of Mens Rea
“Traditional” and “Statutory” Mens Rea
Motive and Mens Rea
Motive and Defenses
Specific Kinds of Mens Rea
Intent (Purpose)
Knowledge
Recklessness
Negligence as a Predicate for Criminal Liability
Proving Mens Rea
Contemporaneity, Prior Fault, and Time Frames
Statutory Interpretation and Mens Rea
Principles of Statutory Construction
Element Analysis
The “Default Position”

xiii

Mens Rea and the Constitution

The Model Penal Code
“Elements” vs. “Material” Elements
Kinds of Material Elements
Levels of Mental States
Element Analysis
The Default Position Under the Code
Summary
Examples
Explanations
Chapter 5 Mistake
Overview
Mistake and Ignorance of Law
Ignorance of the Law
Mistake of Law
Exceptions to the Rule
 “Specific Intent” Crimes
Noncriminal Law Mistake
Estoppel
The Model Penal Code
Retention of the “Ignorantia Lex” Doctrine
The “Reasonable Reliance” Approach to Mistake
Mistake of Fact
Reasonableness and Specific Intent
Knowledge and Willful Blindness
Mistake of Legal Fact
The Model Penal Code
A Note on the Future of Mistake
Examples
Explanations
Chapter 6 Strict Liability
Overview
The Reach of Strict Criminal Liability
Definitions and Indicia of Strict Liability
Public Welfare Offenses
Mala in Se (“Real”) vs. Mala Prohibita (“Unreal”?) Crimes
Innocent Actors
The Litmus Test of Available Punishments
Strict vs. Vicarious Liability
Arguments for and Against Strict Liability

xiv

Alternatives to Strict Liability

“Greater Crime” Theory
One More Way of Imposing Strict Liability: Elements,
Material Elements, and Sentencing Factors
Constitutionality
The Model Penal Code
A Recap and a Methodology
 Examples
Explanations
Chapter 7 Causation
Overview
The Rationale of Causation
The Elements of Causation
The Common Law
Responsibility for Causing Harm
Cause in Fact
Omission as a Cause
Concurrent Causation
Direct Cause
Proximate Cause
Contributory Negligence and Proximate Causation
The Model Penal Code
Responsibility for Causing Harm
“But For” Causation
Other Causation, Concurrent Causation, and
Transferred Intent
Culpability as to Result
Examples
Explanations
Chapter 8 Homicide
Overview
Human Being
When Does Life Begin?
When Does Life End?
Cause and Death
Murder
“Original” Murder: Killing with “Malice Aforethought”
Presumed Malice
Gradations of Murder
“First-Degree” Murder
xv

“Second-Degree” Murder
The Model Penal Code Approach
Some Further Thoughts
Examples
Explanations
Felony Murder
Introduction
Restrictions on the Doctrine: “Cause” Questions
The “Proximate Cause” Theory
The “In Furtherance” (“Agency”) and “Provocative
Act” Theories
Justified vs. Excused Killings
The Shield Cases: Exception to an Exception to an
Exception
Other Restrictions
Duration of the Felony: Time Matters
Limitations on the Predicate Felony
Summary
Statutory Felony Murder: The Interplay of Courts
and Legislatures
The Model Penal Code Approach
Examples
Explanations
Manslaughter
Voluntary Manslaughter
The Rules of Voluntary Manslaughter
Twentieth-Century Changes in the Doctrines
The Model Penal Code Approach
The Rules of Involuntary Manslaughter
Reckless and Negligent Manslaughter
Misdemeanor-Manslaughter
Examples
 Explanations
Chapter 9 Rape
Overview
The Common Law Approach
Definition
Spousal Immunity
Force
Threat of Force
Consent
Attacking the Credibility of the Complainant

xvi

Legally Ineffective Consent

Fraud
American Common Law
The Actus Reus of Rape
The Mens Rea of Rape
The Model Penal Code
Second-Degree Rape
First-Degree Rape
Gross Sexual Imposition
Modern Rape Statutes
Rape by Force or Threat of Serious Bodily Injury
Force
Additional Force
Inherent Force
Nonphysical Force
Threat of Force
Dispensing with the Force Requirement
Resistance by the Victim
Consent
Deception
Rape in the First Degree
 Spousal Immunity
Rape Because No Legally Effective Consent
Summary
Evidence Reforms
Rape Shield Laws
Examples
Explanations
Chapter 10 Theft
Overview
The Impact of History
The Death Penalty
Larceny
Trespass
Asportation and Taking
Personal Property
Of Another
With Intent
To Deprive
Permanently
Contemporaneity

xvii

Finders
Embezzlement
Conversion
In Lawful Possession
Fraud
False Pretenses
Representation
Present or Past Fact
Title
Mens Rea, Knowledge, and Intent to Defraud
Confusion
 Grading
The Model Penal Code
Examples
Explanations
Chapter 11 Solicitation
Overview
Definition
The Common Law
The Model Penal Code
Another Version of Solicitation
The Mens Rea of Solicitation
The Common Law
The Model Penal Code
The Actus Reus of Solicitation
The Common Law
The Model Penal Code
The Relationship Between Solicitation and Conspiracy
Responsibility for Crime Solicited
Solicitation and Immunity for Crime Solicited
Solicitation and Innocent Agents
Impossibility
The Common Law
Legal Impossibility
Factual Impossibility
The Model Penal Code
Abandonment
Solicitation and Law Enforcement
Punishment
Examples
Explanations

xviii

Chapter 12 Attempt
Overview
Definition
The Mens Rea of Attempt
The Actus Reus of Attempt
The Common Law
Mens Rea
Intend the Act
Intend the Result
Intend the Circumstances
Actus Reus
Last Act
The Equivocality Test
Proximity Test
Probable Desistance
The Model Penal Code
Definition
Mens Rea
Conduct
Result
Circumstance
Actus Reus
Summary
Abandonment
The Common Law
The Model Penal Code
Impossibility: Legal, Factual, and Inherent
The Common Law
Legal Impossibility
Factual Impossibility
Analysis
Inherent Impossibility
The Model Penal Code
Legal Impossibility
Factual Impossibility
 Inherent Impossibility
Stalking
Examples
Explanations
Chapter 13 Conspiracy
Overview
Definition

xix

The Common Law

The Model Penal Code
Punishment and Grading
The Common Law
The Model Penal Code
The Special Advantages of Conspiracy for Prosecutors
Choice of Venue
Joint Trials
Use of Hearsay Evidence
Responsibility for Crimes Committed by Co-
Conspirators
The Common Law
The Model Penal Code
Duration
The Common Law
Extending the Life of a Conspiracy
The Model Penal Code
Consequences of Termination
The Mens Rea of Conspiracy
The Common Law
Act and Result
Circumstances
The Model Penal Code
Conduct and Result
 Circumstances
Purpose or Knowledge When Providing Goods and
Services
Case Law
The Model Penal Code
The Actus Reus of Conspiracy
Agreement
The Common Law
The Model Penal Code
Overt Act
In General
The Model Penal Code
The Scope of the Agreement or How Many Conspiracies?
Single Agreement with Multiple Criminal Objectives
Single or Multiple Agreements?
The Wheel and Spokes Approach
The Chain Approach
Wheel and Chain Conspiracies
The Model Penal Code
Parties to a Conspiracy
The Common Law’s Bilateral Approach
The Model Penal Code’s Unilateral Approach

xx

Abandonment
The Common Law
The Model Penal Code
Withdrawal
The Common Law
The Model Penal Code
Impossibility
Legal Impossibility
Factual Impossibility
Wharton’s Rule
 The Common Law
The Model Penal Code
Immunity for Substantive Offense
The Common Law
The Model Penal Code
Examples
Explanations
Chapter 14 Complicity
Overview
The Rationale of Accomplice Liability
Definitions
The Common Law
Principals and Accessories
Misprision of Felony
Treason
Misdemeanors
The Model Penal Code
Principals and Accessories Before the Fact
Accessories After the Fact
Procedural Consequences of Classification
The Common Law
Venue
Pleadings and Proof
The Requirement of a Guilty Principal
The Model Penal Code
Venue
Pleadings and Proof
The Requirement of a Guilty Principal
Contemporary Law
Principals and Accessories
Accessories After the Fact
Elements of Accessorial Responsibility

xxi
 Mens Rea
The Mens Rea of the Crime Aided
The Mens Rea to Be an Accomplice: Purpose or
Intent to Aid the Principal’s Criminal Action
Knowledge That Another Intends to Commit a Crime
Providers of Goods and Services
Liability for Unintended Crimes Committed by the
Principal
Actus Reus
Actual Assistance
Omission
How Much Aid Is Enough?
Immunity from Conviction
Conduct Necessarily Part of the Crime
Legal Incapacity to Commit Substantive Crime
The Relationship Between Principal and Accessories
The Common Law
The Requirement of a Guilty Principal
The Pretending Principal
Differences in Degree of Culpability Between
Principal and Accomplice
Withdrawal of Aid
The Model Penal Code
The Requirement of a Guilty Principal
The Pretending Principal
Differences in Degree of Culpability Between
Principal and Accomplice
Withdrawal of Aid
Examples
Explanations
Chapter 15 Defenses: An Initial Survey
Overview
Presumptions
 Constitutional Aspects of Presumptions
The Model Penal Code
“Affirmative” Defenses
Legislative Clarity and the Offense-Defense Distinction
The Constitution and Affirmative Defenses
The Common Law and Affirmative Defenses
Excuse and Justification: The Debate and Confusion
The Distinction Drawn
The Distinction Questioned

xxii

The Problems with Explaining Justification

Mistake and Justification
Mistake: Honest or Reasonable?
Unknowing Justification: The Dadson Problem
The Problem with Explaining Excuses
Procedural Implications of the Distinctions
The Burden of Proof Problem
The Abolition Problem
The Assistance and Resistance Problem
The Model Penal Code
Examples
Explanations
Chapter 16 Acts in Emergency: Justification vs. Excuse
Overview
Common Requirements, Common Problems
Actus Reus, Mens Rea, or Both? Or Neither?
Actus Reus
Mens Rea
Why Punish?
Duress
The Doctrines of Duress
Personal Injury
 Source of the Threat
“Imminence”
Reasonableness of Fear
To “Himself”
Creating Conditions of Duress
Duress and Homicide
Termination of the Threat
The Guilt of the Duressor: A Note
The Rationale of Duress
The Model Penal Code
Necessity
The Doctrines of Necessity
Source of the Threat
Necessity and Homicide
The Problem of Imminence
Choice of Evils and Alternatives
Creating Conditions of Necessity
Excuse or Justification?
Duress vs. Necessity

xxiii

The Problem of Democracy

The Model Penal Code
Examples
Explanations
Self-Defense
The Rules of Self-Defense
Imminence; No Alternatives
Preemptive Strikes
To Retreat or Not to Retreat, That Is the Dilemma
“Stand Your Ground” Laws
Proportionality and Subjectivity
Mistake and Reasonableness
The Position of the “Aggressor”: Withdrawal
 The “Not Unlawful” Aggressor
Time Frames
The Battered Wives Cases: A Challenge to the
Doctrines
Doctrinal Problems of Self-Defense
The Mens Rea of Self-Defense
Defense of Others
The Model Penal Code
Examples
Explanations
Provocation — Excuse or Justification?
Defense of Property and Habitat
The Common Law
Other Lawful Means Available
Warning
Deadly Force Not Permitted
The Model Penal Code
Initial Aggression
Retaking Property
Use of Force
Examples
Explanations
Use of Force
Arrest
The Common Law
The Model Penal Code
Preventing Crime
The Common Law
The Model Penal Code
Examples
Explanations

xxiv

Chapter 17 Defenses Based on Individual Characteristics

Overview
Insanity
The Relevance of Mental Illness in the Criminal Justice
System
Competency to Stand Trial
Transfer from Prison to a Psychiatric Hospital
Release from Confinement
Execution Pursuant to a Sentence of Death
The Insanity Defense
The M’Naghten Test
The Irresistible Impulse Test
The Model Penal Code Test
The Federal Insanity Test
Reform of the Insanity Defense
Substantive Changes
Insanity Defense Myths and Facts
The Guilty But Mentally Ill Defense
Historical Origin
Jury Options
Dispositional Consequences
Arguments Pro and Con
The Empirical Consequences of the GBMI Defense
Examples
Explanations
Infancy
The Common Law
Under Age 7
Between Ages 7 and 14
Over Age 14
The Model Penal Code
Contemporary Law
Juvenile Court Jurisdiction
Criminal Responsibility
Determining Capacity
 Examples
Explanations
Intoxication
Intoxication as an Element
The Relevance of Voluntary Intoxication to Mens Rea
or Culpability
The Common Law
The Model Penal Code

xxv

The Relevance of Voluntary Intoxication to Defenses

Involuntary Intoxication
The Relevance of Voluntary Intoxication to Actus Reus
Alcoholism and Insanity
Examples
Explanations
Diminished Capacity
A Brief History
The British Version: Diminished Responsibility
The California Version
The Rule of Evidence Approach
The Model Penal Code
Summary
Examples
Explanations
Entrapment
The History of the Entrapment Defense
The Defense Today
The Subjective Approach
The Objective Approach
Due Process
Examples
Explanations
New Excuses: The Future Is Upon Us
 Physiologically (Biologically) Based Excuses for
Criminality
Neuroscience and the Law — My Brain Made Me Do
It
Genetics and Crime
Premenstrual Syndrome (PMS)
Other Physiologically Based Claims
Psychologically Based Excuses
Brainwashing
Mob Mentality
Cognitive Psychology, Law, and the Emotions
Sociologically Based Claims
Criminogenic Causes: Rotten Social Background
Urban Survival Syndrome and Black Rage
Recap
Examples
Explanations

Table of Cases
Index
xxvii
 Preface

Criminal law forces us to confront the most important moral dilemmas of

our times. More than most law school courses, criminal law engages our
emotions as well as our intellects. This book will encourage that
engagement. Many of our examples are taken from current topics of
intense public debate such as euthanasia, male rape, self-defense, and
even fantasy Internet crime. But the underlying normative challenge of the
criminal law — justifying the coercive use of state power against
individuals — transcends particular controversies. Indeed, this debate has
challenged great thinkers of the past like Plato, Socrates, Aquinas, and
Kant. And it will certainly challenge us and future generations. This text
keeps that tension in sharp and continuous focus.
This book helps students master a broad range of criminal law
doctrines. But it does not merely present a collection of “rules.” It also
explains and analyzes those doctrines and the problems they generate in
a cohesive and comprehensive way. Where there are ambiguities — either
theoretical or practical — we discuss them. Not to do so would mislead
students and trivialize the criminal law. By recognizing how complex the
tapestry is and how interwoven are its various threads, students can
appreciate the rich nuances of its doctrine and policy. This book examines
that complexity, while remaining easy to read and to understand. Its sole
purpose is to help students learn.
We were attracted to the format of the Examples & Explanations series
long before we began work on this book. The format fits the typical law
school classroom experience by posing challenging problems first
(without answers, of course!) and then offering solutions. We also enjoyed
the humor evident in other volumes in this series. Learning is serious
business — but no business is so serious that it cannot be approached
with an occasional smile. We have tried to sprinkle humor generously
throughout the book.
 From all reports, students have found the earlier editions of this book
very helpful, not only for mastering criminal law, but also for learning what
is expected of them on law school exams. We are pleased that the earlier
editions were so successful. We have maintained the same basic
approach, but we have thoroughly updated the eighth edition. New
material has been added on important and current topics, like conspiracy
charges for internet rape, more commonly prosecuted male rape, and the
implications of new discoveries in neuroscience on criminal law.
Examples have been drawn from newspaper headlines, such as terrorism
prosecutions, testosterone

xxviii

overload, sexual abuse by clergy, male rape, a San Francisco “dog

mauling” case, and the New York “cannibal cop.” We think that you will
enjoy this book and that it will help you, as it has helped many other
students to succeed in criminal law.
Finally, a plea for your help. This book can be successful in helping
students only if the authors know what works — and what doesn’t. We are
anxious for your comments — negative and positive — either on specific
topics or hypotheticals, or generally. Please contact us at our e-mail
addresses and give us your criticisms and comments. We can’t promise
we’ll respond directly, but we can promise that we’ll consider every point
as we move toward a ninth edition. A number of the hypotheticals, or at
least their topic areas, have been added as the direct result of student
comments to earlier editions. We have also benefited from observations
about the accuracy of citations, format, etc. Keep those e-mails coming in.
To all who read this book, we hope that you learn from it and enjoy it.

Shima Baradaran Baughman

Richard G. Singer
John Q. La Fond
Shima@law.utah.edu
rsinger@camlaw.rutgers.edu
lafondj@comcast.net
May 2021
xxix
 Acknowledgments

This book bears the name of its “authors.” But it required the hard work,
assistance, and sacrifice of many people. Our students contributed helpful
comments on many of the examples in this book, thereby protecting
future students from the foibles found in earlier versions. Research
assistants, particularly Jacqueline Rosen, Rebekah Watts, Madeline Aller,
Emily Swenson, Lauren Martinez, Marina Pena, Helena Jordan, and Amylia
Brown at the University of Utah; Laura Anglin, Jenifer Hanlon, Tara
Manley, and Anne-Marie Sargent at Seattle University School of Law; and
Rebecca Abeln, Deawn Hersini, Christin Keele, Chris Moberg, Tina Parsley,
and Katherine Schoofs at the University of Missouri-Kansas City School of
Law. Moral support was provided by our respective deans — Elizabeth
Kronk Warner, Rayman Solomon, Jim Bond, and Burnele Powell. The
tedious and frustrating job of reading our scribbles and editing for errors
fell to wonderful and indefatigable administrative staff: Noreen Slease at
Seattle University, Norma Karn at the University of Missouri–Kansas City
School of Law, Debi Leak at Rutgers University, and Ross McPhail, Patti
Beekhuizen, Baiba Hicks, and Angela Turnbow at University of Utah,
whose good humor and positive approach kept us all on an even keel. We
wish especially to thank our respective spouses, Ryan Baughman, Karen
Garfing, and Evelyn La Fond, for their continuing tolerance and patient
support.
xxxi
Criminal Law

EXAMPLES & EXPLANATIONS

CHAPTER 1
The Sources and Limitations of the
Criminal Law
OVERVIEW
Ever since Cain slew Abel, societies have had to deal with those whose
acts seem “wrong.” A conclusion that an act is wrong may be simply
innate.1 Some wrongs, however, seem worse than others. Thus, breaking
a promise or tripping someone seems wrong, but homicide, rape, and
maiming seem “really” wrong. If a general consensus arises that specific
acts are really wrong, there will be laws against such acts. Some acts will
be criminally punished, while others will be handled by civil parts of the
legal system. This book focuses on how that behavior is defined and
punished as “criminal.”
American criminal law has three main sources: (1) the common law,
(2) statutory law, and (3) constitutional law. Of these, the most important
is statutory law, since it is now accepted that it is unconstitutional to
punish someone unless her conduct was previously proscribed by the
legislature. Nevertheless, criminal statutes are interpreted in light of an
800-year history of common law principles and against more modern
constraints imposed by constitutional doctrines. The criminal law is yet
further limited: Since most of criminal law consists of statutes, courts
have established maxims of statutory interpretation, some rooted in the
Constitution, others

not. Of these, the most important are examined on pages 9-12,

including the void-for-vagueness doctrine and the rule of lenity.
Finally, this chapter explores, if only briefly, the procedural limitation
that requires the prosecution to persuade a jury beyond a reasonable
doubt that the defendant is guilty. Just as important as the standard and
its articulation are the reasons why the Supreme Court has held this
standard to be required by the Constitution.
SOURCES OF CRIMINAL LAW
The Common Law as a Source of Criminal Law
Early English custom condemned as felonies seven offenses: mayhem,
homicide, rape, larceny, burglary, arson, and robbery. All other offenses
were misdemeanors, and they ranged from serious crimes (kidnapping) to
less serious crimes (assault). These classifications became known as the
“common law” because they were commonly shared.2
The term “common law” is usually employed to refer solely to judge-
made law, typically in the areas of torts and contracts. However,
legislatures early on became interested in defining crimes; therefore, in
the context of criminal law, the term “common law” incorporates both
statutes and judge-made law as well as judicial interpretations of statutes.
The power of courts to “create” crimes existed until well into the
nineteenth century and in some rare instances, continues even today.
Initially, English law treated all injuries, except homicide, as inflicting
private harms that could be compensated. If the injured party accepted
compensation, the defendant could not also be criminally sanctioned.
After the Norman Conquest, however, the new kings, unhappy with leaving
such decisions in private hands, sought to establish their power over
crimes by punishing these actors. Although this divergence between torts
(compensable acts) and crimes (punishable acts) began more than 800
years ago, and took centuries to complete, even today, many acts that
constitute crimes also often constitute torts. Therefore, it is still helpful to
compare the common law rules of tort, in which compensation to the
plaintiff is the major concern, with the common law rules of crimes, in
which punishment of the defendant is the sole concern.

Legislative Sources
The legislature increased in importance when the procedures for torts and
crimes divided. The English Parliament codified the common law of
crimes and — slowly at first, then rapidly — enlarged the list of felonies
beyond the initial seven. In the United States, legislative dominance in
defining crimes through statutes has continued on the ground that the
protection of citizens was too important to leave to the gradual
development by judges of the common law. In addition, courts decided
that applying newly defined crimes retroactively would violate the
requirement of fair notice, a basic doctrine of English-American law.
In political theory, legislatures should be at least predominantly, if not
exclusively, the source of criminal law in a democracy. To the extent that
criminal law reflects moral sentiments of the community, the legislature,
as the most democratically elected institution, should prevail. Courts,
which are often appointed, should be subordinate to the representative
body; even where judges are elected, they are not as frequently reviewed
by the populace.
Statutes are usually written not one provision at a time but address
many issues that are considered in a relatively short time. It would be
unrealistic to expect legislatures to focus on the precise questions that
litigation may pinpoint. Moreover, no matter how carefully written,
statutes are in English, a notoriously ambiguous and opaque language.
Thus, judicial interpretation of statutes is inevitable.
The interplay between the common law (developed by courts) and
statutes (developed by legislatures) is dynamic. American courts can no
longer “create” crimes, as their English forebears did in earlier times (see
Chapter 10 (theft) and Chapter 13 (conspiracy)). There is also agreement
that there can be no crime unless there is a statute prohibiting the
conduct.3 Still, courts can construe statutes either broadly or narrowly,
thus effectively broadening or narrowing the reach of the statutory
criminal law.

The Model Penal Code as a Source of Criminal Law

In our federal system, each state is free within constitutional limits to
develop its own common and statutory law. Consequently, state and
federal legislatures have enacted differing statutes, and the courts have
Another random document with
no related content on Scribd:
back
back
back
back
back
back
back
back
back
back
back