Criminal Law Outline

1) What’s a crime?

a) Act or omission and its accompanying state of mind which, if duty is shown to have

taken place, will incur a formal and solemn pronouncement of the moral condemnation of

the community

i) This means a crime is more than something that’s punished.

(1) It deals with a social harm that is so morally reprehensible, as to be made

criminal.

b) In studying criminal law, keep in mind:

i) How do various jurisdictions define their criminal offenses

ii) What are the basic elements common to every crime in the Anglo-American tradition

iii) What does the prosecution have to prove in order for the fact finder to find a person

guilty

iv) What are the elements of particular crimes, i.e., murder, rape, burglary.

v) What distinguishes first degree from second degree murder

vi) What level of punishment does the person who has committed a crime deserve

2) Sources of criminal law

a) Common law

i) Judge made law

ii) Most criminal law matters covered by statute; however, the meaning given these

statutes is often determined by reference to the common law c

b) Statutory codes

i) Criminal law largely governed by statutes

ii) Criminal codes that define general principles

(1) Jurisdictions without criminal codes adhere to statutes

c) Model penal code

i) Drafted by American Law Institute in 1962

ii) Not directly enforceable n any state; however, half the states have enacted criminal

statutes drawing heavily from the MPC wording/concepts

3) Why do we punish? (Metzger stresses this point)

a) Deterrence

i) General deterrence

(1) Punishment is bad enough to deter general population from committing crime

ii) Specific deterrence

(1) Punishment is bad enough to deter offender from committing the crime ever again

iii) Incapacitation

(1) Incarcerate/restrain offender to ensure incapacitated from committing additional

crimes

iv) Rehabilitation

(1) Give the offender treatment to change behavior; this is done by not scaring the

offender into changing behavior (specific deterrence) but by reforming the

offender’s motivations

v) Retribution

(1) Eye for an eye; getting just desserts for committing a crime

(2) Communicative retribution: Where the retribution communicates values.

vi) Education (aka signaling)

(1) Signaling/sending messages about societal values to society in general; educate

people about what is wrong (functions of the law: tell people how to act/how to

feel)

b) Theories of punishment

i) Utilitarianism Jeremy Bentham

(1) Form of consequentialism; justification of a practice depends only on its

consequences

(2) Punishment is justifiable if, but only if, it is expected to result in a reduction of

crime. Punishment must be proportional to the crime, i.e., that punishment be

inflicted in the amount required (but no more than is required) to satisfy utilitarian

crime prevention goals.

(a) Purpose of all laws is to maximize net happiness of society

(3) See: general deterrence, specific deterrence, rehabilitation

ii) Retributivism Immanuel Kant

(1) Form of nonconsequentialism; punishment is justified when it is deserved; it is

deserved when the wrongdoer freely chooses to violate society’s rules

(2) Punishment given in proportion to culpable wrongdoing. Some people are more

moral than others.

iii) NOTE: look at the micro to macro messages inherent in punishments

c) Malum in se

i) Wrong in and of itself; Crimes that are inherently dangerous, bad, or immoral in

themselves

d) Malum Prohibitum

i) Law says it’s wrong;

(1) Prohibition is necessary to regulate the general welfare

e) NOTE: some things slide from malum in se to malum prohibitum and vice versa

i) Smoking marijuana

ii) Drunk driving

f) Cases

i) Regina v. Dudley (1884) pg. 7-11

(1) Two seamen were charged with murder (followed by eating) a fellow seamen

when they were all lost at sea.

(a) They justified their behavior as a necessity

(b) Underlying moral implications:

(i) Sacrifice one for all; survival of “weakest” (quality of life—family, etc.;

status/obligations; eat the bigger person?); should person being sacrificed

have a say; wait for person to die; volunteer

(2) Rule: Killing is only justified in self defense; temptation is no defense for

murder; it’s not murder if it is justified, however, necessity is not a justification or

a defense for murder

(3) Held: The killing of Parker under the circumstances (of starvation while lost at

sea) by Dudley and Stephens was felony and murder

(a) Reasoning: Sending a moral message; it is never okay to play good; worry

the impact an acquittal will have on future behavior; nationalism

(b) Sentenced to death, but a pardon was given. *We can surmise there is

communal discomfort to this being murder and warranting the death

penalty

ii) People v. Suitte (1982) pg. 11-19

(1) Charged with criminal possession of a weapon in the forth degree. carried an

unlicensed gun in the state of New York. Gun legislation meant for general

deterrence

(a) Pled guilty and sentenced to 30 days in jail

(i) He’s a “family man” who probably didn’t register the gun because he

didn’t find it intrinsically immoral to not do so

1. (malum in se vs. malum prohibitum)

(2) Rule: A person is guilty of violating the gun law if their gun is unlicensed and

will be sentenced accordingly, even if they are a first time offender

(3) Held: Possession of an unlicensed gun in New York is against the law, even for

first time offenders; sentencing should be administered

(a) Reasoning: This is bigger than Suite; because this is general deterrence, the

aim is to stop others from carrying unlicensed guns by punishing offenders;

warning of what will happen; someone could steal an unlicensed gun and use

it; law enforcement would be incapable of tracing it; Suite isn’t immune to

legislature to get tough on crime; the gun law provides no blanket exceptions

of first offenders

(b) Sentenced to 30 days in jail

(i) Dissent: points out issues with rules/predictors of how the law is moving;

questions if punishing Suitte by sending him to jail appropriate, after all, is

it proper exercise to jail a first time offender who poses no serious threat

to the community

iii) Cases looking at the proportionality of punishment

(1) Ewing v. California (2003) pg. 103-111

(a) Held: not a violation of the Eighth Amendment where California’s three

strikes law was used to produce a 25-years-to-life sentence for a repeat

offender who stole $1200

(i) Problem wasn’t that D stole $1200 worth of merchandise but that he had

done so AFTER having been convicted of at least two violent/serious

felonies

(2) Other cases:

(a) Solem v. Helm: set out three factors to determine whether a sentence is

disproportionate as to violate the Eighth Amendment

(i) The gravity of the offense compared with the harshness of the penalty

(ii) The sentences imposed on other criminals in the same jurisdiction

(iii) The sentences imposed for the same crime in other jurisdictions

1. Using these factors, Solen had struck down as disproportionate a life

sentence without possibility of parole for a seventh nonviolent felony,

which was a bad check for $100

(b) Rummel v. Estelle (it did not violate the Eighth Amendment for a State to

sentence a three-time offender to life in prison with the possibility of parole)

(c) Harmelin v. Michigan (sentence of life in prison without the possibility of

parole for a first time offender convicted of possession of 672 grams of

cocaine was not so grossly disproportionate that it violated the Eighth

Amendment)

4) Statutory interpretation

a) How to read statutes

i) Read statute

ii) Definitions

iii) Cross reference

iv) Break into component parts

v) Find essential components

b) Look at three important pieces to statutory constructions

i) Plain language

ii) Canons of construction

(1) noscitur a sociis: meaning of doubtful terms or phrases may be determined by

reference to their relationship with other associated words or phrases

(2) ejusdem generis: where general words follow a specific enumeration of persons

or things, the general words should be limited to persons or things similar to those

specifically enumerated

iii) Legislative intent/history

(1) Policy analysis

(2) Broad vs. narrow interpretation

c) Problem with statutes is that they can be ambiguous or hard to interpret

i) Cases

(1) United States v. Dauray

(a) Held: wording of the statute was ambiguous as applied herein

(i) Statute punishes the possession of “matter,” three or more in number,

“which contain any visual depiction” or minors engaging in sexually

explicit conduct.

1. However, Dauray argues that the statute is ambiguous as applied to

possession of three or more pictures and that the rule of lenity should

there fore apply to resolve this ambiguity in his favor

d) Rule of lenity: Criminal statutes must be strictly construed against the prosecution:

if a statute has two reasonable interpretations, the one that is more favorable to the

defendant must be applied

i) Better to let ten guilty men go free than to let one sit in jail

e) All elements of the statute must be proven beyond a reasonable doubt

i) Burden of proof is on the prosecution and the defendant need not make any

affirmative proof of innocence

5) Proving Matters

a) Government must prove all elements beyond a reasonable doubt

b) Defendant must prove affirmative defenses by preponderance of the evidence but on

appeal this gets shifted to beyond reasonable doubt

c) Circumstantial evidence can get you to this threshold; much stricter scrutiny

d) Government does not have to address all elements of defense, just provide their theory of

guilt

e) On appeal, court looks at evidence in light most favorable to prosecution

f) Defendant can choose either bench or jury trial

g) Statistics show that the better the narrative, the more likely you succeed with judges or

juries

6) Concurrence of Elements

a) The prosecution must prove every single element beyond a reasonable doubt (MPC 1.12)

b) Cannot convict unless each element of an offence is proven beyond a reasonable doubt

c) In the absence of complete proof, the defendant is assumed to be innocent (not guilty???)

7) Actus Reus

a) A voluntary act

i) Bodily movement

ii) Done consciously

iii) Knowing controlling/possession

b) Involuntary acts do not constitute actus reus

c) Habits, however, are sufficient actus reus

d) AR = conduct + attendant circumstances + result

e) When mens rea is given in statute, it applies to the conduct and result elements ONLY!

Not to the attendant circumstances

f) When is omission a voluntary act?

i) Special relationship

ii) Statute

iii) Contract to provide care

iv) Voluntary assumption of care

v) Creation of peril

vi) Duty to control the conduct of another

vii)Duty of landowner

8) Mens Rea

a) Culpable states of mind

b) Define crime by actor’s intent and not the result

c) Same voluntary act, same result, same actus reus, BUT can have different mens rea.

d) Mens rea under the MPC

i) Purposely

(1) Subjective standard

(2) Actor had to have intent or the conscious objective of engaging in conduct; also

believes, hopes prays attendant circumstances exist

(3) Ex. Ex-wife places bomb on a commercial plane with her ex-husband aboard in

order to kill him. She acts purposely toward her husband and killing him.

ii) Knowingly

(1) Subjective standard

(2) Practically certain of the result

(3) Ex. Throw a rock in the crowd, you’re practically certain you’ll hit someone

opposed to purposely throwing it at someone specific.

(4) Ex. Ex-wife places bomb on a commercial plane with her ex-husband aboard in

order to kill him. She acts purposely toward her husband and killing him.

However, she acts knowingly toward everyone else who is killed.

iii) Recklessly

(1) Objective/subjective standard

(2) Elements

(a) Gross deviation (from the standard of care a of a LAW ABIDING person

(objective))

(b) Risk

(i) Substantial

(and)

(ii) Unjustifiable (subjective)

AND

(iii) Conscious (appreciation of the risk)

(iv) Disregard (choose to disregard the appreciated risk)

(3) Note: need to look at entire act

iv) Negligently

(1) Objective standard

(2) Disregard has to be of the nature and degree that it involves a gross deviation

from stands of conduct of a reasonable person

(3) Punishes someone because they don’t understand/perceive the risk in the first

place on their own

(a) Ex.) Child falls and has concussion. Parents think the child is okay because it

is up running around playing. Shortly thereafter, the parents tuck child in to go

to bed. Child never wakes up (dies in sleep). Parents charged with negligence

(i) However, does this stop other parent’s perceptions of any inherent risk?

Not necessarily

(4) Does not care about your mental state, only what you should have known;

indifference as to the subjective not knowing

v) Note: a reasonable person may not abide by the law because he may see it as

unreasonable to do so

vi) Reckless conduct = behavior

vii)Negligent duty of care = awareness (oblivious to risk and conduct) should

reasonable people pay attention to this

viii) MPC 2.05:

(1) So if the statute says negligence is the standard and able to prove anything

higher, then done; you’ve satisfied the burden

(a) For some reason, it is sometimes easier to not prove negligence when

trying to prove negligence e) It is easiest to prove recklessness. (Technically, negligence has the lowest and easiest

burden, but in the PKR paradigm, negligence has to fall away because a person cannot be

negligent and reckless at the same time. Logically, cannot perceive a risk and not

perceive it at the same time.) If a higher mens rea is proven, so is the lower. (Ex. If you

prove purposely, you’ve proven knowingly and recklessly.)

9) Willful blindness

a) Avoiding knowledge is knowledge

b) Conscious disregard of knowledge is recklessness

c) Intent

i) Objective, natural, and probable causes of action

ii) Two types of intent

(1) Requisite: if it is his conscious object or purpose to cause a certain result or to

engage in certain prohibited conduct

(2) Virtual certainty: knowing one’s action will cause social harm

10) Strict liability

a) Legislature eliminates mens rea.

b) Actor is liable regardless of mens rea.

c) Doesn’t matter if one is mistaken about the attendant circumstance.

d) Crimes that we want people to be on guard against because they will be found guilty

regardless of intent

e) Public welfare offenses

f) Statute not derived from common law

g) Penalty is generally small

h) Ex. Pharmacist’s documentation, sale or manufacture of spoiled food, traffic offenses

i) Statutory rape is in it’s own category for punishment the harshness of the punishment

makes it a huge exception

j) With the MPC

i) If the statue deliberately removes the mens rea, then it is a violation/fine, or

recklessness, knowingly, and purposefully must be read into it.

11) Mistake

a) For a mistake to be a defense, it has to vitiate the mens rea

b) Mistake of fact

i) The absence of intent

ii) A theory of defense as long as the theory is in some way plausible. Not a freestanding

defense as long as the theory is in some way plausible

(1) Not a defense is the defendant would be guilty of another offense had the

situation been as he supposed

c) Mistake of law: think the law does not apply to your action

12) Causation

a) Concurrence between the actus reus and the result

i) Ex. Let’s say A intended to wound B slightly. Some jurisdictions say that because A

intended to wound B at all, A took the risk that the wound could be greater than

slight; therefore, A caused the result.

b) Attenuation: how close is the conduct to causing the result

c) Have to have concurrence through each step of the causal chain

d) Common law:

i) Actual (cause-in-fact)—but for your actions the crime would not have occurred

ii) Accelerating the harm of someone else still makes someone the but for cause; a

person is liable for causing the death at a particular point in time before the victim

otherwise would have died

iii) Legal (proximate cause): enough of a cause to warrant punishment

(1) May be more than one cause of a particular event

(2) Were you enough of a cause that you care criminal liability even though there are

intervening cause

(a) If there is an intervening cause, it breaks the causal chain of connection

(i) No longer have the requisite concurrence for a conviction

(b) Types of intervening causation:

(i) Dependent: depending on your voluntary action

1. Ex. Pot hole on the other side of the street, you’re on wrong side of

street because you’re drunk

(ii) Independent: depends on foreseeability

1. Ex. Pot hole on your side of the street where you live and you see it

every day, so it is foreseeable

2. However, if there is an earthquake and you hit a crack made by it,

you’re not liable unless the intervening independent cause is

foreseeable to you

Notes on causation: when the intervening cause breaks the causal chain so you don’t have

concurrence between act and result. Intervening causes will relieve defendant of culpability only

if intervening response was not reasonably foreseeable. Independent intervening acts destroys

causal connection between defendant’s ant and victim’s injury, relieving them of culpability.

Dependent intervening acts are normal and reasonably foreseeable results of defendant’s original

act and does not relieve them of culpability. If you are a direct cause you are also the proximate

cause. The substantial factor test asks whether the conduct is a substantial factor in getting the

result, was it foreseeable, was it a natural and probably cause of the conduct, and whether it is

natural that the conduct usually causes this result even if there are other things.

e) MPC:

i) But for cause is the starting point (actual cause aka cause-in-fact)

ii) Leaves mens rea to be defined by act and result of the act

(1) Like in common law foreseeability

(a) Subjective (have to hope the attendant circumstances exist)

(i) Cause in purpose: you have to intend to cause the result

(ii) Causation in knowledge: practically certain that your conduct will cause

that result

(2) Element of causation only if the result is within the risk of which you were or

should have been aware

(a) Objective

(i) Reckless/Negligent: compare what actually occurred to what was risked

(3) As long as things are not so remote, this holds.

13) Homicide

a) Common law

i) Homicide: unlawful killing

ii) Murder: unlawful killing with malice aforethought

iii) Manslaughter: unlawful killing without malice aforethought

(1) Keep in mind that malice is a term of art meaning intentional or reckless intent to

kill or cause grievous bodily injury

iv) 1st degree: willful, deliberate, premeditated (in cold blood); this also includes felony

murder

v) 2nd degree: intentional killing, depraved heart murder (extremely reckless)

vi) Voluntary manslaughter: reasonable provocation; also known as heat of passion

murder

vii) Involuntary manslaughter: reckless killing

b) MPC criminal homicide

i) Person is guilty of criminal homicide if he purposefully, knowingly, recklessly, or

negligently causes the death of another human being is murder, manslaughter, or

negligent homicide

(a) Murder if done purposely or knowingly

(i) Also when done with extreme indifference to human life

(b) Manslaughter if recklessly

(i) EMED

(c) Negligent homicide: if done negligently

c) First degree murder (goal and purpose)

i) Willful, deliberate, and premeditated murder

(1) Premeditation: thinking about killing in advance; before the crime is committed;

can happen in the blink of an eye

(2) Deliberation: quality of the thinking—calm, cool, rational. (Or it may be so

heated, that some of the crime, may be excused/reduced because there was not the

calm thinking present.)

(3) Willful: intent to kill

(4) Can be defined as Murder 2nd Degree + Premeditation + Deliberation =Murder 1st

Degree

ii) Felony murder

(1) Death during/resulting of the commission or attempted commission of any felony

(2) No mens rea; lacks premeditation

(3) If you commit a crime, but in the course of the act, a murder occurs, you are

responsible

(4) Also, take your victim as the are…rob a store and the clerk is an old man who has

a heart attack; that’s on you

(5) Inherently dangerous limitations

(a) Is the felony inherently dangerous (abstractly dangerous)?

(b) Were the facts dangerous?

(6) Causation

(a) The felony and death must be close in time and place (continues until felon

reaches a place of apparent safety)

(b) Causal relationship needed between the felony and death (unrelated accidental

deaths don’t count)

(7) MPC doesn’t really have felony murder per se

(a) If engaged in felony A, and there is gross recklessness, then the crime will be

treated as knowingly/purposely

(b) Elevates conduct that would ordinarily just be a felony but the by-product is

the death of someone; only applies to murder NOT ATTEMPT

d) Second degree murder

i) Any intentional (purposeful or knowing) killing other than first-degree murder or

voluntary manslaughter (ex. A purposeful killing done while unreasonably in the hear

of passion)

ii) Intentionally causing serious bodily injury where death, though never intended,

results

iii) Depraved heart murder

(1) Malice may be express or implied

(a) Express: where there is manifested a deliberate intention unlawfully to take

away a life

(b) Implied: when no considerable provocation appears, or when the

circumstances attending the killing show an abandoned and malignant heart

(i) Defendant acted with gross recklessness and extreme indifference to

human life, meaning that the defendant realized that his actions created a

substantial and unjustifiable risk of death and yet went ahead and

committed the actions anyway

(c) Under the MPC, the defendant can be convicted regardless of whether or not

he acted purposely or knowingly if the act was foreseeable.

e) Voluntary manslaughter

i) A killing that would otherwise be murder but that is mitigated to manslaughter

because it was done upon being reasonably provoked into a sudden heat of passion

without cooling off where a reasonable person could not have cooled off

(1) Heat of passion murder

(a) Adequate provocation

(b) The killing must have been in the heat of passion

(c) It must have been a sudden heat of passion before a reasonable opportunity for

the passion to cool

(d) There must have been a causal connection between the provocation, the

passion, and the act

(e) Note: there is a reasonable man/person standard. It is objective. Society is

causing for shifting standards and expectations based on gender of actors and

crimes between homosexuals. (Um, change this wording.) Reasonable

standard takes into account shock from traumatic injury, extreme grief, and

personal situations

(i) The reasonable standard takes into account shock from traumatic injury,

extreme grief, and personal situations

(f) Extreme Mental or Emotional Disturbance (EMED) THIS IS MPC TEST

(i) Reasonable explanation or excuse

(ii) No provocation or cooling time needed

(iii) Reasonable standard: only need reasonable for the emotion

(iv) There is no reasonable standard for the action of killing

(v) Individual must not have mental disease or defect that rises to the level of

insanity or diminished capacity

(vi) Must be exposed to an extremely unusual and overwhelming stress

(vii) Must have an extreme emotional reaction to I, as a result there is a loss of

self-control

(g) Involuntary manslaughter: criminal negligence

(i) Gross negligence and sometimes recklessness

(ii) A reckless killing (provided that it is not of the special type of

recklessness that elevates the crime to depraved heart murder

(h) MPC criminal homicide

(i) Person is guilty of criminal homicide if he purposefully, knowingly,

recklessly, or negligently causes the death of another human being is

murder, manslaughter, or negligent homicide

14) Attempts

a) Series of actions that result in criminal liability although the crime itself did not happen;

must predict future conduct when conduct that is desired is prevented

i) What is the rule? How far do you have to go before it is an act?

ii) Why are we punishing this?

b) Two significant challenges

i) Identifying intent

ii) Selecting appropriate punishment (do you punish the act or reward the cessation)

c) There are two types of attempts that the law treats identically; however, the distinction is

important for what type of defenses are available

i) Complete attempt: defendant does everything possible to effect the crime but does not

cause the result of the particular offense

(1) As a defense, the defendant argues that the conduct is insufficient to show his

intent to commit the alleged crime

ii) Incomplete attempt: defendant stops short of completing the offense, either of his

own accord or because of the intervention of a third party

(1) As a defense, the defendant argues that his conduct is insufficient to show that he

had moved beyond the preparatory stage to actually commit the crime

d) Approaches

i) Common law

(1) Mere preparation: not guilty of the crime

(2) Preparation completed and perpetration has started: guilty of the crime (to some

extent)

(3) To determine if preparation has ceased and perpetration has begun:

(a) Proximity approach: some courts hold that the accused must have done every

act that he believes is necessary to bring about the intended result. Other

courts hold that the defendant must be physically proximate to the intended

crime

(b) Probably desistance approach: conduct must pass the point where the

defendant would think better of it and desist (i.e., except for the intervention

of some extraneous factor…it would occur

(i) An act which in the ordinary course of events would result in the

commission of the intended crime except for the intervention of some

extraneous factor

(c) Equivocality approach: defendant does an act transforming preparation to

perpetration and there is no other purpose of the act but the commission of

that crime

(i) The res ipsa loquitur test of criminal law

(d) MPC approach (Substantial step test): A person is guilty of an attempt to

commit a crime if, acting with the kind of culpability otherwise required for

the commission of the crime, he:

(i) Purposely engages in conduct that would constitute the crime if the

attendant circumstances were as he believes them to be; or (it would occur

if circumstances were as he believes…)

(ii) When causing a particular result is an element of the crime, does or omits

to do anything with the purpose of causing or with the purpose of causing

or with the belief that it will cause such a result without further conduct on

his part; or (does everything necessary for it to occur…)

(iii) Purposely does or omits to do anything that, under the

circumstances as he believes them to be is an act or omission constituting

a substantial step in a course of conduct planned to culminate in his

commission of the crime (takes a substantial step toward the crime…)

1. Conduct that may be a substantial step:

a. Lying in wait

b. Enticing or seeking to entice the victim to go to the place for the

crime

c. Reconnoitering the place contemplated for the crime

d. Unlawful entry of a structure which it is contemplated that the

crime will be committed

e. Possession of materials to be employed in the commission of the

crime

f. Soliciting an innocent agent to engage in conduct constituting an

element of the rime

(iv) Hypo: not deer hunting season. Hunter goes out seeking deer. Par rangers

know this and create a dummy deer. Hunter shoots and blows off head of

dummy.

1. MPC: guilty of attempt

a. 5.01(a)-purposely engages in conduct that would constitute the

crime if the attendant circumstance were as he believes them to be

(v) Hypo: Car bomb placed but no one turns on the car

1. MPC: guilty of attempt

a. 5.01(b)- substantial step: unlawful entry

(vi) Hypo: planning to place a car bomb

1. Act: enter the car to see if a bomb could be placed

a. Mens real

b. Absent: it would require one to be knowingly and purposely

c. Last proximate cause jurisdiction: not an attempt

2. Act: opening the car door and believing you can place bomb inside

3. Act: goes to work and sees potential victim who makes a negative

comment

4. Act: decision to proceeds with placement of the bomb

a. Mens rea is now present and the effort has been mad

(vii) MPC discusses evidence of proof; act must be strongly corroborative

1. Act: stop at the hardware store. Buys small wrenches, some pipes,

lighter, and wire

a. Items could be used to make a bomb or to fix one’s sink

i. Strongly corroborative?

(e) Mens rea requirement for intent

(i) Having the required mental state that the completed crime requires

(ii) Having the purpose to bring about the acts and any results that are

elements of the completed crime

(iii) Merely knowing of the existence of any attendant circumstances

that the completed crime requires. (you only have to know that it is night

to be guilty of attempted burglary)

(iv) Note: there is no attempted involuntary manslaughter…you cannot intend

to commit and unintentional killing

(f) Attempt defenses:

(i) Impossibility: defendant’s act could never result in the completion of the

crime

1. Factual, legal, true

a. Factual impossibility: defendant is mistaken about the facts but if

the defendant had been correct, the crime would have occurred

i. Ex. Picking an empty pocket

ii. Does not negate defendant’s intent to commit the crime.

Defendant will still be found guilty

b. Legal impossibility: the impossibility negates the crime itself

i. Ex. Attempting to acquire stolen goods which are in fact not

stole.

ii. Some jurisdictions allow this

Approaching the big picture question of why do we punish for policy portions of the exam:

Prevention:

Prevention is used as the justification for punishment. It helps provide “social control,”

deterrence, the ultimate utilitarian goal, protection of public safety, etc. For rehabilitative

purposes, we do not punish people/put them in jail to make them better. We do it to teach people

how to avoid reincarceration and to discourage them from committing cries again, ultimately

serving the goal of preventing future crimes against society. The limitation on punishment is

utilitarian. The deterrent force relies on public acceptance of the legitimacy of the law, and the

grading of offenses must not excessively constrain liberty.

Retributive:

Retribution is used as justification for punishment because of a criminal’s blameworthiness, and

society’s need to see criminals get there “just desserts” or “see the offender pay for his crime.”

Retribution also serves as a limitation on punishment in regards to free will, recognizing people

have choices, and choosing not to punish them unless they made a morally wrong choice.

Retributivists generally punish people less for lesser moral wrongs and more for greater moral

wrongs (grading) as a proportionate response to criminal behavior.

Civil liberties concerns:

Society strongly respects civil liberties. Liberty can be maximized only if people are given a fair

chance to not be arrested. Liberties would be at risk if police/courts have absolute freedom to

arrest/prosecute for crimes. Civil liberties lead to certain constraints on courts’ ability to punish:

1) we limit liability to conduct, not status or predicted dangerousness; 2) conduct must be

voluntary, an act done by free will; 3) we want punishment to fit the crime.

Equality concerns: Equal treatment under the law is an especially strong civil liberties concern; a

s result, laws must be specific enough that the same standards can apply to all members of

society. Inequality still happens, as people and systems are flawed and prejudiced. But the law

can be written in ways that either encourage or discourage unequal treatment. Society strongly

prefers the latter. The specificity of the law allows standardized application and determination of

guilt. Also, it allows for equal enforcement by police toward all groups of people.

Retroactivity concerns: Language is imprecise and law drafters attempt to be overinclusive. This

can lead to ambiguity as to whether something is illegal at the edges of the law. We want law to

be specific enough that a person can anticipate in advance whether their behavior will be illegal,

and we do not want people using ambiguity to declare behavior criminal after the fact and punish

behavior that was not recognized as criminal at the time it was committed.

Vagueness challenge: Sometimes law fails to give adequate notice/fair warning as to what is

criminal or vagueness of law allows arbitrary and discriminatory enforcement. There has to be

balance between public protection and personal liberty; the vagueness doctrine is very

contextual, not to be overused, and is often applied more broadly to individuals displaying public

behavior than business transactions. To argue there is no vagueness challenge, argue that there is

greater need for social control. To make a vagueness challenge, argue that values/liberties trump

enforcement.