Chapter 1:
❖Criminal Law in the U.S. Society (core felonies)
➢Crime: If you put the case into this category, then grade it as very serious, serious, or minor. The
idea here is to stamp it with both the amount of disgrace (stigma) you believe a convicted “criminal”
should suffer and roughly the kind and amount of punishment you believe the person deserves
➢Non Criminal wrong:This is a legal wrong that justifies suing someone and getting money, usually
for some personal injury. In other words, name a price that the wrongdoer has to pay to another
individual, but don't stamp it “criminal”
➢Regulation:Use government action - for example, a heavy cigarette tax to discourage smoking - to
discourage the behavior. In other words, make the price high, but don't stamp it with the stigma of
“crime”
➢License: Charge a price for it - for example, a driver’s license fee for the privilege to drive - but don't
try to encourage or discourage it. Make the price affordable, and attach no stigma to it
➢Lawful: Let individual conscience and/or social disapproval condemn it, but create no legal
consequences. (You should also choose this option if you believe society should encourage the
behavior. A few students occasionally do)
➢The social reality of U.S. criminal law, is the idea that there are two criminal laws
■ 1) The small group of core offense
■ 2) A huge number of crimes we call “all the rest”
➢Criminal law imagination:
■ Conduct that reflects our “moral desires - visions of a moral order,yearnings for the
comportment of others and ourselves,” and which “we seek to impose…on the world”
➢The core felonies
■ Felonies against persons: murder, manslaughter, rape, kidnapping, and robbery
■ Felonies against property: all forms of felony theft, robbery, arson, and burglary
■ These are the “index” crimes that the FBI tracks in its annual Uniform Crime Reports (UCR)
■ All states and the federal government have criminal codes that both define in detail the
elements the prosecution has to prove beyond a reasonable doubt to convict defendants,
and prescribe hard punishment (a year or more in prison) for committing them
■ Several other points about the social reality of the handful of core felonies in U.S. criminal
law:
● 1) There are far fewer core offenses and far fewer people committing them than in
the rest of the criminal law
● 2) Core offenses are ancient
● 3) Most have remained remarkably stable in definition. Their elements are pretty
much what they were when the judges created them and Blackstone wrote about
them
● 4) The short list of them has not grown much since Blackstone’s day either.
■ The core offenses clearly fit within what Professor Bernard Harcourt calls our “carceral
imagination” The word carceral refers to jail and prison
■ Punishment imagination:
● Crimes that fit within the criminal law imagination and that the law should punish by
locking up people
➢“All the rest” of the U.S. Criminal Law: The “police power”
■ Police power:
● Includes what you immediately imagined - uniformed police officers enforcing the
criminal law. However, it extends much further to encompass all federal, state, and
local governments' executive, legislative, and judiciary’s acts to carry out the “broad
public policies regarding public safety, public economy, public property, public
morals, and public health”
❖Crimes and Non Criminal Legal Wrongs
➢The opening case summaries demonstrate that criminal law is only one kind of social control called
upon to respond to deviating from social norms
➢Crime liability is the harshest and most expensive form of social control
➢Torts are private wrongs for which you can sue the party who wronged you and recover money
➢Torts and crimes both:
■ Are sets of rules telling us what we can’t do (“Don’t steal’” and what we must do “(Pay your
taxes”)
■ The rules apply to everybody in the community, and they speak on behalf of everybody, with
the power and prestige of the whole community behind them
■ The power of the law backs up the enforcement of the rules
➢How are they different?
■ Almost every crime is also a tort. Many crimes and torts even have the same name
■ The same killing sometimes is tried as murder and later as a civil wrongful death suit
■ Torts don’t just harm other individuals; they can also harm the whole community
■ One difference is that criminal prosecutions are brought by the government against
individuals
■ A second difference is that injured plaintiffs (those who sue for wrong in tort cases) get
money (called damages) from defendants for the injuries they suffer
● In criminal actions, defendants pay fines to the state and/or serve time doing
community service, in jail, or in prison
■ Perhaps the most important difference between torts and crimes is the conviction itself
● Condemning words alone don't make crimes different from torts
● It's the threat of punishment, a threat that society will carry out against anyone who
commits a crime
◆If the threat isn't carried out when a crime is committed, condemnation is
meaningless, or worse - it sends a message that the victim’s suffering is
worthless. Punishment has to back up the condemnation
● It's important to emphasize the intimate connection (often overlooked) between
punishment and its place in the criminal law imagination itself
➢In tort cases involving violence and other especially “wicked” circumstances, plaintiffs can recover
not only compensatory damages for their actual injuries but also substantial punitive damages to
make an example of defendants and to “punish” them for their “evil behavior”
❖Classifying Crimes
➢One scheme divides crimes into two categories: mala in se crimes and mala prohibita offenses
■ Mala in se crimes require some level of criminal intent
■ Mala prohibita offenses are crimes only because a specific statute or ordinance prohibits
them
● They include minor offenses, such as parking illegally, drinking in public, and the
countless other minor offenses that don’t require criminal intent, only a voluntary act
➢The most widely used scheme for classifying crimes is according to the kind and quantity of
punishment
■ Felonies are crimes punishable by death or confinement in the state’s prison for one year to
life without parole
■ Misdemeanors are punishable by fine and/or confinement in the local jail for up to one year
■ The classification depends on the possible punishment, not the actual punishment
■ Classifying between felony and misdemeanor is important because there is a difference
between procedure for felonies and misdemeanors
❖Sources of Criminal Law
➢The most prevalent source of criminal law is found in state criminal codes created by elected
representatives in state legislatures and municipal codes created by the city and town councils
elected by city residents
➢There’s also a substantial body of criminal law in the U.S. Criminal Code created by the U.S.
Congress
■ These elected bodies frequently rely on administrative agencies, whose members are
appointed, not elected the the voters, to “participate” in creating criminal law
● Criminal court opinions, especially state appeals courts, in fact create criminal law by
interpreting state and municipal criminal codes
● Criminal law enforcement agencies, namely police and prosecution, create criminal
law too, especially in the “all the rest” crimes
➢State criminal codes
➢The Model Penal Code (MPC)
■ In the Model Penal Code, the American Law Institute (ALI) made good on its commitment to
draft a code that abolished common law crimes
■ It’s the framework we use to guide our analysis of criminal liability, namely “conduct that
unjustifiably and inexcusably inflicts or threatens substantial harm to individual or public
interests”
■ Here’s a breakdown of the words and phrases in the definition:
● 1) conduct that
● 2) Unjustifiably and inexcusably
● 3) Inflicts or threatens substantial harm
● 4) To individual or public interests
➢Municipal Ordinances
■ Municipalities have a “chorus of advocates” among criminal law reformers who’ve helped
cities write a “new generation” of their old vagrancy and loitering ordinances that “cleanse”
them of prior objections that they’re unconstitutional and discriminatory
■ Municipal ordinances often duplicate and overlap state criminal code provisions. When they
conflict, state criminal code provisions are supposed to trump municipal ordinances
■ Municipalities have the broad power to create local crimes and the power to determine the
punishment
● Municipalities can't create felonies and they can’t prescribe punishments greater than
one year in jail
➢The U.S. Criminal Code
■ The U.S. Criminal Code covers more - and more trivial - conduct than most state and
municipal codes
■ Administrative Agency Crimes
● Both federal and state legislatures frequently grant administrative agencies the
authority to make rules
◆The U.S. Internal Revenue Service income tax regulations are based on the
rule-making authority that Congress delegates to the IRS.
◆We call violations of these federal and state agency rules administrative
crimes; they’re a controversial but rapidly growing source of criminal law
■ Informal Discretionary Law Making
● The broad and deep reach of the state, municipal, and U.S. criminal code has led to
a huge amount of law making by police and prosecutors
● In any case, there’s no such thing as total criminal law enforcement. Police can’t
arrest all suspects, and prosecutors can’t charge all suspect police arrest
◆The social reality of our criminal law is that law enforcers (police and
prosecutors) will create the law as it operates in the real world
● Both the power to charge and to plea bargain (and the power of the police not arrest)
the broad and deep criminal law lowers the cost of convicting criminal defendants.
❖Criminal Law in the U.S. Federal System
➢In our federal system, there are 52 criminal codes, one for each of the 50 states, one for the District
of Columbia, and one for the U.S. criminal code
➢The U.S. government’s power is limited to crimes specifically related to national interests, such as
crimes committed on military bases and other national property; crimes against federal officers;and
crimes that are often difficult for one state to prosecute
■ The rest of criminal law, which is most of it,is left to the state codes. These are the crimes
against persons, property, and public order and morals in the special part of the criminal law
➢So we have 52 criminal codes, each defining specific crimes and establishing general principles for
the territory and people within in
■ And they don’t, in practice, define specific crimes the same
➢The defenses to crime also vary across state lines
➢Punishments also differ widely among the states. Several states prescribe death for some convicted
murderers; others prescribe life imprisonment
➢This diversity among the criminal codes makes it clear there’s no single U.S.criminal code. But this
diversity shouldn’t obscure the broad outline that’s common to all criminal laws in the United States
❖Criminal Punishment in the U.S. Society
➢The U.S. is the clear leader in world imprisonment rates
■ Most of them come from city neighborhoods with the most concentrated disadvantage
➢The Era of Mass Imprisonment
■ The era of mass imprisonment and steep rise in crime and violence accompanied a shift in
political climate
■ The complicated connections among imprisonment, crime, sentencing policies, and the
changes over time and place interact with each other
● For whatever reasons, most studies conclude that more prison has reduced crime.
Unfortunately, the evidence doesn't tell clearly how much
■ The most important consequence of mass imprisonment may be the massive expansion of
the criminal justice system into the country’s poorest communities
● “There is little question that incarceration has become another strand in the complex
combination of negative conditions that characterize high-poverty communities in the
U.S. cities”
■ There’s much more to this story of the possible negative consequences that mass
imprisonment may have had not just on released prisoners, but on their families, their
neighborhoods, cities, and beyond
● That much is enough also to make clear that sound criminal punishment policies
require both science and fundamental principles
■ Fear and anger against criminals was a powerful force arousing law-abiding people in all
neighborhoods, perhaps most of all in poor neighborhood where residents were most in
danger of being victimized
● Anger - even hate - aimed at criminals who prey or put in fear law-abiding people
who work hard and play by the rules are certainly in order and definitely healthy
■ Recommendations made by the National Research Council Committee on Causes and
Consequences of High Rates of Imprisonment
● Proportionality: criminal offenses should be sentenced in proportion to their
seriousness
● Parsimony: The period of confinement should be sufficient but not greater than
necessary to achieve the goals of sentencing policy
● Citizenship: The conditions and consequences of imprisonment should not be so
severe or lasting as to violate one’s fundamental status as a member of society
● Social justice: prisons should be instruments of justice, and as such their collective
effort should be to promote and not undermine society’s aspirations for a fair
distribution or rights, resources, and opportunities
➢Defining “Criminal Punishment”
■ In everyday life, punishment means intentionally inflicting pain or other unpleasant
consequences on another person
■ To qualify as criminal punishment, penalties have to meet four criteria:
● 1) They have to inflict pain or other unpleasant consequences
● 2) They have to prescribe a punishment in the same law that defines the crime
● 3) they have to be administered intentionally
● 4) the state has to administer them
■ This distinction between criminal punishment and treatment is rarely clear-cut
● Furthermore, pain and pleasure don’t always distinguish punishment from treatment
● Some critics maintain that the major shortcoming of treatment is that “helping” a
patient can lead to excessive measures, as it sometimes has
❖Theories of Criminal Punishment (retribution, prevention)
➢Theories of criminal punishment refer to thinking about the purposes of criminal punishment
➢Retributionists:
■ Insists that offenders can only pay for their crimes by experiencing the actual physical and
psychological pain (“hard treatment”) of having punishment inflicted on them. In other words,
punishment justifies itself
■ Retribution looks back to past crimes and punishes individuals for committing them, because
it’s right to hurt them
■ Retributionists contend that punishment benefits not just society, as Stephen emphasized,
but criminals
■ Society pays back criminals by retaliation; criminals pay back society by accepting
responsibility through punishment
■ Their wrong choice makes them blameworthy. And their blameworthiness (the criminal law
calls it their “culpability”) makes them responsible (the criminal law calls it “liable”)
■ Retribution assumes free will, thereby enhancing individual autonomy. It also seems to
accord with human nature. Hating and hurting wrongdoers
■ Retributionists, however, claim that retribution rests not simply on long use but also on two
firm philosophical foundations, namely, culpability and justice
■ Retribution requires culpability. Only someone who intends to harm her victim deserves
punishment; accidents don’t qualify
■ Retributionists also claim that justice is the only proper measure of punishment. Justice is a
philosophical concept whose application depends on culpability. Culpability depends on
blame; we can punish only those we can blame; we can blame only those who freely
choose, and intend, to harm their victims
■ Opponents find a lot to criticize in retribution. First it’s difficult to translate abstract justice into
concrete penalties
■ Another criticism is that the urge to retaliate isn’t part of human nature in a civilized society;
it’s the last remnant of barbarism
■ There’s a substantial body of empirical research from psychology, anthropology, and biology
contesting this “barbarism” argument
■ Determinists, which include many criminologists, reject the free-will assumption underlying
retribution
● Psychiatrists point to subconscious forces beyond the conscious will’s control that
determine criminal conduct
● Determinism undermines the theory of retribution because it rejects blame, and
punishment without blame is unjust
■ Another argument against retribution is the vast number of crimes that don’t require
culpability to qualify for criminal punishment
➢Preventionists (also called consequentialists)
■ Insist that the pain of punishment can - and should - be only a means to a greater good,
usually the prevention or at least the reduction of future crime
■ Prevention looks forward to the consequences of criminal conduct
■ It inflicts pain, not for its own sake, but to prevent (or at least reduce) future crimes
■ Punishment theorists break it down into three functions:
● 1) Deterrence: Aims by specific deterrence, actual punishment to convince present
offenders not to commit crimes in the future; and by general deterrence, the threat of
punishment in the future, to convince criminal wannabes in the general population
who haven’t committed crimes from doing so
● 2) Incapacitation: prevents convicted criminals from committing future crimes by
locking them up, or more rarely, by altering them surgically or executing them
● 3) Rehabilitation: (also called reformation) aims to prevent future crimes by changing
individual offenders so that they want to play by the rules and support themselves
and their families without committing future crimes
■ Hedonism is the idea that human beings seek pleasure and avoid pain
■ Rationalism states that individuals can, and ordinarily do, act to maximize pleasure and
minimize pain
■ Classical deterrence theory:
● Rational human beings won’t commit crimes if they know that the pain of punishment
outweighs the pleasure gained from committing crimes
● Prospective criminals weigh the pleasure they hope to get from committing a crime
now against the threat of pain they believe they’ll get from future punishment
● Supporters of the deterrence argue that the principle of utility - permitting only the
minimum amount of pain necessary to prevent the crime - limits criminal punishment
more than retribution does
◆According to this argument, only God, then angels, or some other divine
being can measure ”just deserts”
● Deterrence supporters concede that there are impediments to putting deterrence into
operation. The emotionalism surrounding punishment impairs objectivity, and often,
prescribed penalties rest more on faith than evidence
● According to the critics, the rational, free-will individual that deterrence supporters
assumed exists is as far from reality as the eighteenth-century world that spawned
the idea
◆Furthermore, critics maintain that individuals and their behavior are too
unpredictable to reduce to a mechanistic formula
◆Besides, severity isn’t the only influence on the effectiveness of punishment.
Certainty and speed may have greater deterrent effects than severity
● Critics maintain that even if we could obtain empirical support for criminal
punishment, deterrence is unjust because it punishes for example’s sake
◆Punishment shouldn’t be a sacrifice to the common good; it's only just if its
administered for the redemption of particular individuals, say the
retributionists
➢Incapacitation
■ Incapacitation restrains convicted offenders from committing further crimes
■ Incapacitation in most cases means imprisonment. Incapacitation works: dead people can’t
commit crimes, and prisoners don’t commit them - at least not outside prison walls
■ Incapacitation has its share of critics. They argue that incapacitation merely shifts criminality
from outside prisons to inside persons
➢Rehabilitation
■ Rehabilitation borrows from the “medical model” of criminal law. In this model, crime is a
“disease” and criminals are “sick” in need of “treatment” and “cure”
■ Two assumptions underlie rehabilitation theory:
● The first is determinism; that is, forces beyond offenders’ control case them to
commit crimes
● Therapy by experts can change offenders (not just their behavior) so that they won’t
want to commit any more crimes. After rehabilitation, former criminals will control
their own destinies
◆Rehabilitationists adopt the idea of free will and its consequences: criminals
can choose to change their life habits; so society can blame and punish them
■ Criticisms:
● 1) Critics maintain that rehabilitation is based on false, or at least unproven
assumptions
● 2) It makes no sense to brand everyone who violates the criminal law as sick and
needing treatment
● 3) critics call rehabilitation inhumane because the cure justifies administering large
doses of pain
❖Empirical Evaluation of Criminal Law Theories
❖The Text-Case Method
➢It’s part text and part excerpts from criminal law cases specially edited for nonlawyers
■ The text part of the book explains the general principles of criminal law and definitions of
specific crimes
■ The case excerpts involve real-life crimes that apply the general information in the text to
real-life situations
➢A “not guilty” verdict doesn’t mean innocent; it means the government didn’t prove its case beyond
a reasonable doubt
➢A “guilty” verdict doesn’t mean not innocent; it means the government proved its case beyond a
reasonable doubt
➢It's in the trial courts that the cases for the state and the defense are presented; where their witness
and the physical evidence are introduced; and where the fact finders (juries in jury trials or judges in
non jury trials) decide what the “true” story is and whether the evidence all adds up to proof of guilt
beyond a reasonable doubt
➢If there’s proof beyond a reasonable doubt, the fact finders render their “guilty” verdict ; the judge
enters a judgment of guilty - and the case might be over
➢Rarely, defendant appeal judgments of guilt
■ These appeals go to appellate courts
■ The usual procedure is to appeal first to the intermediate court of appeals and then to the
state supreme court
➢Concurring opinion: justices agree with the conclusions of either the majority or the dissenting
opinion, but they have different reasons for reaching the conclusion
➢Plurality opinion: an opinion that represents the reasoning of the greatest number (but less than a
majority) of justices
❖Key Cases
➢Bond v. U.S.
Chapter 2:
❖The principle of Legality (ex facto laws)
➢“No crime without law; no punishment without law”
■ No one can be convicted of, or punished for, a crime unless the law defined the crime and
prescribed the punishment before a person engaged in the behavior that was defined as a
crime
➢The basic idea of the principle of legality is to let individuals know what the law prohibits, and what
the punishment for its violation is
➢Ban on ex post facto laws
■ An ex post facto law does one of three things
● 1) It criminalizes an act that wasn’t a crime when it was committed
● 2) It increases the punishment for a crime after the crime was committed (the ban
doesn’t apply to reductions in punishment)
● 3) It takes away a defense that was available to a defendant when the crime was
committed
■ Equally clear, and equally rare, are statutes that change an element of a crime after its
committed
● Statues that increase punishment occur more often
■ The ban on ex post facto laws has two major purposes:
● 1) To protect private individuals by ensuring that legislatures give them fair warning
about what’s criminal and that they can rely on that requirement
● 2) To prevent legislators from passing arbitrary and vindictive laws
➢The Void-for-Vagueness Doctrine
■ A law is void for vagueness if it forbids conduct and prescribes punishments in terms so
uncertain that ordinary people have to guess at their meaning before they choose a course
of action
■ The reasoning behind the void-for-vagueness doctrine
● 1) The Fifth and Fourteenth Amendments to the U.S. The Constitution bans both
federal and state governments from taking any person’s “life, liberty, or property
without due process of law.”
● 2) Criminal punishment deprives individuals of life (capital punishment), liberty
(imprisonment), or property (fines)
● 3) THerefore, failure to warn private persons of what the law forbids and/or allowing
officials the chance to define arbitrarily what the law forbids denies individuals their
life, liberty, and/or property without due process of law
■ The void-for-vagueness doctrine takes aim at two evils similar to those of the ban on ex post
facto laws
● 1) void laws fail to give fair warning to private individuals as to what the law prohibits
● 2) they allow arbitrary and discriminatory law enforcement
■ The question “What’s fair notice in void-for-vagueness law?”; “Would an ordinary,
reasonable person know that what he was doing was criminal?”
● Despite the importance of giving fair notice to individuals, the U.S. Supreme Court
(1983) decided that providing “minimal guidelines to govern law enforcement” trumps
notice to private individuals as the primary aim of the void-for-vagueness doctrine
● Giving priority to controlling law enforcement is more realistic than giving fair notice
to hypothetical reasonable, ordinary people. So it makes sense for courts to ask
whether statutes clearly indicate to ordinary police officers and prosecutors what the
law prohibits
■ The void-for-vagueness doctrine can never cure the uncertainty present in all laws
● It’s also because the variety of human behavior and the limits of human imagination
make it impossible to predict all the variations that might arise under the statutes
➢The rule of lenity
■ The rule of lenity requires courts to resolve every ambiguity in a criminal statute in favor of
the defendant
● The rule has recently attracted critics who claim that courts don’t follow the rule, they
either just pay it lip service, or ignore it utterly
● All seem to agree that courts have rendered the rule “impotent”
● There’s really a “new” and improved narrow lenity rule. It requires courts to interpret
ambiguous statutes in favor of defendants only in the core felony cases and others
requiring fault
➢Proving guilt in criminal cases
■ The constitution also limits criminal law and punishment by means of a regime of procedures
for proving defendants’ guilt
■ In every criminal case, the law requires satisfying the following conditions:
● 1) Every criminal defendant enjoys the presumption of innocence, from the time
they’re charged with crimes until they’re convicted
● 2) The prosecution has the burden of proof when it comes to the criminal act and
intent. Defendants have no legal responsibility to cooperate with the government.
THey may stand in silence refusing to say a word. Prosecutors, judges, and juries
can’t use their silence against them
■ In the words of the U.S. Supreme Court, the government has to prove beyond a reasonable
doubt “every fact necessary to constitute the crime charged”
● Conviction might cost defendants their lives, liberty, and property. And they’ll
definitely face the stigma of a conviction
● “Prejudice and life experience also cause enormous differences” in what amounts to
reasonable doubt
● The law prefers to see that guilt persons go free rather than an innocent be convicted
● In general we can all agree that convicting the innocent is a great harm that should
be avoided. That is why we have a presumption of innocence about which I’ve talked
to you already
■ The defenses of justification and of excuse are called affirmative defenses because
defendants present evidence
● Affirmative defenses operate like this: Defendants have to “start matters off by
putting in some evidence in support” of their justification or excuse
◆We call this burden of production
● In some jurisdictions, if defendants meet the burden of production, they also have the
burden of persuasion, meaning they have to prove their defenses by a
preponderance of the evidence, defines as more than 50 percent
❖The Bill of Rights and the Criminal Law (amendments)
➢The Bill of Rights bans defining certain kind of behavior as criminal
➢Right to “Freedom of Speech”
■ The Supreme Court has expanded the meaning of “speech” that the protection of the
amendment “does not end with the spoken or written word”
● It also include expressive conduct, meaning actions that communicate ideas and
feelings
● Although the amendment itself directs it ban only at the U.S. Congress, the U.S.
Supreme Court has applied the ban to states since 1925
● The Court has rules that free speech is a fundamental right, one that enjoys
preferred status.
◆This means that the government has to provide more than a rational basis for
restricting speech and other forms of expression
■ The First Amendment doesn't mean you can express yourself anywhere, anytime, on any
subject, in any manner
■ Five categories of expression are not protected by the First Amendment
● 1) Obscenity; Material whose predominant appeal is to nudity, sexual activity, or
excretion
● 2) Profanity; Irreverence toward sacred things, particularly the name of God
● 3) Libel and Slander. Libels are damages to reputation expressed in print, writing,
pictures, or signs; slander damages reputation by spoken words
● 4) Fighting words; Words that are likely to provoke the average person to retaliation
and cause a “breach of the peace”
● 5) Clear and present danger; Expression that created a clear and present danger of
an evil, which legislatures have the power to prohibit
◆These exceptions create an opportunity for the government to make these
kinds of expression a crime, depending on the manner, time, and place of
expression
➢Under the clear and present danger doctrine, the government can
punish words that “produce a clear and present danger of a serious
substantive evil that rises far above public inconvenience, annoyance,
or unrest”
■ The Court created the void-for-overbreadth doctrine to invalidate laws written so broadly that
the fear of prosecution creates a “chilling effect” that discourages people from exercising
their right to free speech
➢Right to “Bear Arms”
■ According to the majority, the core of the Second Amendment is “ the right of law-abiding,
responsible citizens to use arms in defense of hearth and home”
■ Handguns are the most popular weapon chosen by Americans for self- defense in the home,
and a complete prohibition of their use is invalid
■ “Like most rights, the right secured by the Second Amendment is not unlimited…The right
[is] not a right to keep and carry any weapon whatsoever in any manner whatsoever and for
whatever purpose
● Presumptively lawful examples which are not exhaustive
◆1) Carrying concealed weapons
◆2) Felons possessing firearms
◆3) Mentally ill persons possessing firearms
◆4) Carrying firearms in sensitive places such as school and government
buildings
◆5) Laws imposing conditions and qualifications on the commercial sale of
arms
◆6) Laws banning “dangerous and unusual weapons” not in common use,
such as M-16 rifles and firearms used in the military
◆7) Laws that regulate “storage of firearms to prevent accidents
■ The most common approach to the Second Amendment is a two-pronged inquiry
● 1) Does the challenged law ”impose a burden on conduct falling within the Second
Amendment’s guarantee?” The answer frequently depends on history, namely
whether “the conduct was understood to be within the scope of the right at the time
of ratification” If it wasn’t, then the regulation is valid, and there’s no need to proceed
to the second question
● 2) If it does impose a burden, is the burden “reasonably adapted to a substantial
government interest?”
❖The Right to Privacy
➢You won’t find the word “privacy” anywhere in the U.S. Constitution
➢The U.S. Supreme Court has decided there is a constitutional right to privacy, a right that bans “all
governmental invasion of the sanctity of a man’s home and the privacies of life”
➢Privacy is a fundamental right that requires the government to prove that a compelling interest
justifies invading it
➢The fundamental right to privacy originates in six amendments to the U.S. Constitution
■ The First Amendment rights of free speech, religion, and association
■ The Third Amendment ban on the quartering of soldiers in private homes
■ The Fourth Amendment right to be secure in one’s “person, house, papers, and effects” from
“unreasonable searches”
■ The Ninth Amendment provision that “the enumeration in the Constitution, of certain rights,
shall not be construed to deny or disparage others retained by the people”
■ The Fifth and Fourteenth Amendments’ due process right to liberty
● In the First Amendment, it’s our beliefs and expression of them and our associations
with other people that are protected from government interference
● In the Third and Fourth Amendments our homes are the object of protection
● In the Fourth Amendment, it’s not only our home but our bodies, our private paper,
and even our “stuff” that fall under its protection
● The Ninth Amendment acknowledges we have rights not named in the Constitution
❖The Constitution and Criminal Punishment
➢The Eighth Amendment to the U.S. Constitution commands that “cruel and unusual punishments”
shall not be “inflicted”
➢There are two kinds of cruel and unusual punishments: “barbaric” punishments and punishments
that are disproportionate to the crime committed
➢Barbaric punishments
■ Punishments that are considered no longer acceptable to civilized society
● Ex: burning at the stake, crucifixion, breaking on the wheel, torturing, or lingering
death, drawing and quartering, the rack and screw, and extreme forms of solitary
confienment
◆According to the Court, punishment by death isn’t cruel as long as it isn’t
“something more than the mere extinguishment of life”
➢Death has to be both instantaneous and painless
➢It can’t involve unnecessary mutilation of the body
➢Disproportionate Punishments
■ The principle of proportionality: the idea that the punishment should fit the crime
■ The U.S. Supreme Court first applied proportionality as a principle required by the Eighth
Amendment in Weems v. U.S.
● The court majority ruled that a 90-day sentence for drug addiction was
disproportionate because addiction is an illness, and it’s cruel and unusual to punish
persons for being sick.
■ According to the Supreme Court, “death is different.” There are numerous capital crimes
where no one is killed; they include; they include treason, espionage, kidnapping, aircraft
hijacking, large-scale trafficking, trainwrecking, and perjury that leads to someone’s
execution
■ The death Penalty for mentally retarded murders:
● The American Association on Intellectual and Developmental Disabilities (AAIDD)
names three elements in their definitions of mental retardation
◆1) The person has substantial intellectual impairment
◆2) That impairment impacts the everyday life of the mentally retarded
individual
◆3) Retardation is present at birth or during childhood
● The U.S. Supreme Court ruled that executing anyone who proved that the three
elements in the AAIDD definition applied to them violated the ban on cruel and
unusual punishment
● Executing retarded offenders doesn’t serve the main purpose for having death
sentences: retribution and deterrence
■ The death penalty for juvenile murderers
● Four Supreme Court justices (John PaulStevens, David Souter, Ruth Bader
Ginsburg, and Stephen Breyer) had called death penalty for juveniles “shameful
practice,”
● In 1958 the Court first adopted the “evolving standards” test to decide whether
sentences run afoul of the Eighth Amendment ban on “cruel and unusual
punishments”
◆The “evolving standards” refer to what the Court calls “evolving standards if
decency that mark the progress of a maturing society”
● When a juvenile offender commits a heinous crime, the State can exact forfeiture of
some of the most basic liberties, but the State cannot extinguish his life and his
potential to attain a mature understanding of his own humanity
◆The Court determined that today our society views juveniles as categorically
less culpable than the average criminal
■ Life without parole for juveniles
● The U.S. Supreme Court claims that the proportionality principle extends to
sentencing juveniles to life without parole for juveniles who don’t kill
■ Prison sentences
● The case of Solem v. Helm revealed that the U.S. Supreme Court was deeply
divided over whether the principle of proportionality applied to sentences of
imprisonment
● The split over constitutional status of proportionality in prison sentences was
revealed again when the constitutionality of three-strikes-and-you’re-out laws
reached the Court in 2003
◆Three-strikes laws are supposed to make sure that offenders who are
convicted of a third felony get locked up for a very long time (sometimes for
life).
◆The three-strike laws were popular for three reasons:
➢1) They addressed the public’s dissatisfaction with the criminal justice
system
➢2) They promised a simple solution to a complex problem - the
“panacea phenomenon”
➢3) The use of the catch phrase ”three strikes and you’re out” was
appealing; it put old habitual offender statute ideas into the language
of modern baseball.
◆There were very mixed opinions on the three-strikes law
➢Severely overcrowded prisons, huge state budget problems, and
growing concern over “mass incarceration,” combines to produce the
strong victory for Proposition 36
■ The new law allows prisoners whose third strike was a non
serious and nonviolent crime to seek early release
■ The recidivism rate for other prisoners was 30 percent
● Recidivism is returning to prison for committing a new
crime
● A Superior Court judge can resentence three-strikes
prisoners unless they pose “unreasonable risk of
danger to public safety”
◆Over 75 percent of recidivists commit their new
crime within 1 year of release
■ Proposition 36 has already saved California over $30 million
dollars in prison costs and freed valuable prison space for
more dangerous criminals”
❖The Right to Trial by Jury and Criminal Sentencing
➢The Apprendi rule:
■ Other than the fact of prior conviction, any fact that increases the penalty for a crime beyond
the prescribed statutory maximum must be submitted to a jury, and proved beyond a
reasonable doubt.
■ Judges can’t increase defendants’ sentence without proving beyond a reasonable doubt to a
jury facts justifying the increase
■ For cases that increase sentence lengths, the government would have to “prove any fact
that is required to increase a defendant's sentence under the Guidelines beyond a
reasonable doubt”
■ The Apprendi rule only applies to cases in which judges increase sentences
❖Key Cases
➢State v. Metzger (Neb. 1982)
➢Commonwealth v. William P. Johnson
➢Commonwealth v. Gail M. Johnson (2014)
➢Woollard v. Gallagher (2013)
➢Lawrence v. Texas (2003)
➢Kennedy v. Louisiana (2008)
➢State v. Ninham (Wis. 2011)
➢Ewing v. California (2003)
➢Gall v. U.S. (2007)
Chapter 3:
❖The Elements of Criminal Liability
➢Criminal Liability: “conduct that unjustifiably and inexcusably inflicts or threatens substantial harm to
individual or public interests”
➢Criminal liability falls only upon those whose cases progress through analytic steps
■ 1) Is there criminal conduct? If there’s no criminal conduct, there’s no criminal liability. If
there is, there might be criminal liability. To determine if there is, we proceed to the second
question
■ 2) Is the conduct justified? If it is, then there’s no criminal liability. If it isn’t justified, there still
might not be criminal liability. To determine if there is, we proceed to the third question
■ 3) Is the conduct excused? If it is, then there’s no criminal liability
➢Elements of a crime that the prosecution has to prove beyond a reasonable doubt to convict
individual defendants
■ 1) Criminal act (actus reus)
■ 2) Criminal intent (mens rea)
■ 3) Concurrence
■ 4) Attendant circumstances
■ 5) Bad result (causing a criminal harm)
➢All crimes have to include a voluntary criminal act (actus reus or “evil act”; also referred to as the
physical element in crime)
■ The vast majority of minor crimes against public order and morals include neither mens rea,
nor the element of causation, nor conduct that causes a bad result
■ Serious crimes such as murder, sexual assault , and robbery; and theft and burglary include
both a crminal act and a second element ,the stsates if nubd included in mens rea
➢Crime that requires criminal act triggered by criminal intent are called conduct crimes
■ Elements of criminal conduct crimes:
● Actus reus (voluntary act) + A. Mens rea (general intent), B. Mentes Reae (MPC
levels of culpability) + circumstance = Criminal conduct
➢Criminal acts are voluntary bodily movements and criminal conduct is the criminal act triggered by
mens rea
➢Crimes consisting of a criminal act and a mens rea include a third element, concurrence, which
means that a criminal intent has to trigger the criminal act
■ It’s never really a problem to prove concurrence in real cases
➢Most of the offenses that don’t require a mens rea do include what we call an attendant
circumstance element
■ Circumstance elements are not acts, intentions, causes, or results; rather, they’re facts or
conditions connected with or relevant to acts, intentions, causes, or results
■ Some serious crimes include all five elements. In addition to 1) a voluntary act, 2) the mental
element, and 3) circumstantial elements, they include 4) causation and 5) criminal harm
● We call these crimes bad result crimes or, simply result crimes
◆Elements of bad result crimes
➢Actus reus (voluntary act) + A. Mens rea (general intent), B. Mentes
Reae (MPC levels of culpability) + circumstance + causation (1.
Factual cause and 2. legal cause) = criminal result
➢Criminal homicide
■ Conduct that causes another person’s death. For example, first degree murder consists of 1)
a lethal act, 2) triggered by 3) the intent to kill, 4) which causes 5) someone’s death
➢Corpus delicti
■ “Body of the crime”
■ It also applies to elements of conduct crimes (such as stealing someone’s property in theft)
and result crimes (such as burning a house in arson)
❖The Criminal Act (Actus Reus)
➢“We punish acts not status” or “we punish actions not intentions”
➢A statute that makes it a crime merely to intend to kill another person is absurd because
■ 1) It’ impossible to prove a mental attitude by itself
■ 2) A mental attitude by itself doesn't hurt anybody
● The criminal law demands conduct- a mental attitude that turns into action
■ 3) It's hard to separate daydreaming and fantasy from intent
● Punishment has to wait for enough action to prove the speaker really intends to
commit a crime
● We don't punish thoughts because it’s impractical, inequitable, and unjust
■ The requirement that intentions have to turn into deeds is called manifest criminality. It
leaves not doubt about the criminal nature of the act
● It means catching someone in any criminal act
■ The actus reus requirement serves several purposes
● 1) acts help to prove intent
● 2) it reserves the harsh sanction of the criminal law for cases of actual danger
● 3) it protects the privacy of individuals
➢The “voluntary” act requirement
■ Only voluntary acts qualify as actus reus. The rationale consists of four logical steps:
● 1) Criminal law punishes people
● 2) We can only punish people we can blame
● 3) We can only blame people who are responsible for their acts
● 4) People are responsible only for their voluntary acts
■ The American Law Institute’s (ALI) Model Penal Code’s (MPC) widely adopted definition of
“criminal act” provides: “A person is not guilty of an offense unless his liability is based on
conduct that includes a voluntary act…”
■ The MPC - and many state criminal codes - defines “voluntary,” not by telling us what a
voluntary act is, but by listing involuntary acts
● The list usually includes movements during various forms of automatism (bodily
movements while unconscious)
■ There are two kinds of defenses that examples of involuntary acts can trigger
● 1) Fault-based defenses, defenses based on creating a reasonable doubt about the
prosecution’s proof of a voluntary act
● 2) Affirmative defenses of excuse - insanity and diminished capacity
■ Epilectic seizures
● Voluntary acts that might create liability include choosing not to follow the laws of
states
● The laws vary,but all 50 states restrict driver’s licenses for persons who don't control
their seizures with medication
● Circumstances that could make a person with epilepsy unsafe include missing even
one dose of antiepileptic medication. Taking the medication at the wrong time is
another one of these circumstances. So if failing to heed the warning signs of
oncoming seizures (auras)
➢“Action” refers to what we do; status (or condition) denotes who we are. Most statuses or conditions
don’t qualify as actus reus. Status can arise in two ways
■ 1) prior voluntary acts
■ 2) No act at all; individuals have no control over them
■ The decision that legislatures can’t make status or personal condition by itself a crime
brought into question the constitutionality of many old status crimes, such as being a
prostitute, a drunkard, or a disorderly person
➢Legislatures define both the general principles of liability and the elements of specific crimes in their
criminal codes. Courts interpret and apply the codes’ provisions in decisions involving individual
defendants
❖Omissions as Criminal Acts
➢Criminal omissions satisfy the voluntary act requirement, but only when there’s a legal duty to the
person in danger of harm
➢There are two kinds of criminal omission
■ 1) failure to act, usually the failure to report some information you’re required by law to
provide such as reporting an accident; reporting child abuse; filing an income tax return;
registering a firearm; or notifying sexual partners of positive HIV status
■ 2) failure to intervene (an obligation enforced by law), not just a moral duty, to act
● Legal duties are created in three ways
◆1) Statutes
◆2) Contracts
◆3) Special relationships
➢Statutes are the basis for legal duties to report
➢Individuals can also contract to perform duties
➢The main special relationships are the:
■ Parent-child relationship
■ Doctor-patient relationship
■ Employer-employee relationship
■ Carrier-passenger relationship
■ Husband-wife relationship (in certain states)
➢Failure to perform moral duties (enforced by conscience, religion, and social norms) doesn’t qualify
as a criminal omission
➢There are two approaches to defining a legal duty to rescue strangers or call for help
■ 1) “Good Samaritan” doctrine, which imposes a legal duty to help or call for help for
imperiled strangers
■ 2) American bystander rule: there’s no legal duty to rescue or summon help for someone
who’s in danger, even if the bystander risks nothing by helping
➢Restricting criminal omissions to the failure to perform legal duties is based on three assumptions:
■ 1) individual conscience, peer pressure, and other informal mechanisms condemn and
prevent behavior more effectively than criminal prosecution
■ 2) prosecuting omission puts too heavy of a burden on an already overburdened criminal
justice system
■ 3) criminal law can’t force “Good Samaritans” to help people in need
❖Possession as a Criminal Act
➢By means of a legal fiction (pretending something is a fact when it’s not, if there’s a “good” reason
for pretending) that the principle of actus reus includes possession
➢Possession of weapons, illegal drugs, and drug paraphernalia are the most common possession
crimes. The “good reason” for pretending possession is an act is the powerful pull of the idea that
“an ounce of prevention is worth a pound of cure”
➢There are two kinds of possession: actual and constructive
■ 1) Actual possession means items “on me” such as marijuana in my pocket
■ 2) Constructive possession means items not on my person but in places I control, for
example, my car or apartment
➢Possession, whether actual or constructive, can be either “knowing” or “mere” possession
■ 1) Knowing possession means possessors are aware of what they possess
■ 2) Mere possession means you don’t know what you possess
❖Key Cases
➢State v. Burrell (N.H. 1992)
➢State v. Newman (OR 3013)
➢People v. Levy (2011)
➢Commonwealth v. Pestinikas (PA Sup. 1992)
➢Williams v. State (FL App. 2013)
Chapter 4:
➢A criminal act (actus reus) is necessary, but it’s not enough for criminal liability
■ They include a mental element (mens rea) in addition to the criminal act
● We call this culpability or blameworthiness
➢Mens rea translated, in the singular, means “evil state of mind”
■ The majority of states and federal governments apply a framework that began with the
English common law which included general intent, specific intent, and strict liability. A
substantial minority of states adopt the Model Penal Code (MPC) structure that consists of
four states of mind, ranked according to the degree of their blameworthiness:
● 1) purposely
● 2) knowingly
● 3) recklessly
● 4) negligently
◆These are referred to as levels of culpability
➢Concurrence refers to two connections: 1) in crimes of criminal conduct, criminal intent has to
trigger the criminal act; 2) in result crimes, criminal conduct has to cause the bad result
➢Causation consists of two parts; the prosecution has to prove both beyond a reasonable doubt
■ 1) Cause in fact (also called “factual cause” or “but for causation”) consists of the objective
determination that the defendant’s act triggered a chain of events that ended as the harmful
result, such as the death in a homicide
● Cause in fact is necessary but not enough to satisfy the causation requirement ; that
requires legal cause
■ 2) Legal cause consists of the subjective judgment that it’s fair and just to blame the
defendant for the bad result
➢Proving mens rea, and in result crimes, causation, isn’t always enough to prove criminal liability
❖Mens rea
➢Mens rea, Latin for guilty mind, the mental element of a crime (also called “criminal intent,” “evil
mind,” “mental attitude,” or “state of mind”) is an ancient idea
➢Proof that there is a mens rea requirement in crime
■ 1) most serious crimes couldn’t be committed without intent: murder, rape, robbery, burglary,
and larceny
■ 2) Second defendants’ punishments depended heavily on intent
➢The concept of mens rea, called general intent, refers to a “mind bent on moral wrongdoing” without
further refinement
➢The complexity of mens rea
■ 1) Mens rea is difficult to discover and then prove in court
■ 2) courts and legislatures have used so many vague and incomplete definitions of the
mental element
■ 3) mens rea consists of several mental attitudes that range across a broad spectrum,
stretching all the way from purposely committing a crime you're totally aware is criminal to
merely creating risks of criminal conduct or causing criminal harms - risk you’re not the
slightest bit aware you’re creating
● Intent in criminal law goes way beyond the dictionary definition of “intent,” which
refers to acting on purpose or deliberately
■ 4) a different mental attitude might apply to each of the elements of a crime. So it’s possible
for one mental attitude to apply to actus reus, another to causation, another to the harm
defined in the statute, and still another to attendant circumstance elements
➢A motive is something that causes a person to act
■ Experts disagree over the difference between motive and intent
➢It’s often said that motive is irrelevant to criminal liability; good motive is no defense to criminal
conduct, and a bad motive can't make legal conduct criminal
➢Unfortunately, the relationship between motive and criminal liability is not simple
■ The truth is that sometimes motive is relevant, and sometimes it’s not. Greed, hate, and
jealousy are always relevant to proving the intent to kill
● Juries have someties refused to convict mercy killer of first-degree murder even
though the intent to kill was clearly there
■ Motive is also important in some defenses
■ Motive is sometimes an element of a crime itself
➢Proving “State of Mind”
■ You can’t see a state of mind. Not even the finest of instruments of modern technology can
find or measure your attitude
● Confessions are the only direct evidence of mental attitude. Unfortunately,
defendants rarely confess their true intentions, so proof of their state of mind usually
depends on indirect (circumstantial) evidence
➢Criminal intent
■ Three kinds of fault satisfy the mental element in criminal liability
● 1) subjective fault
◆Fault that requires a “bad mind” in the actor
◆Frequently is linked with immorality. You can see this connection in
expressions in cases and statues, such as “depravity of will”
● 2) objective fault
◆Requires no purposeful or conscious bad mind in the actor
● 3) criminal liability without fault (strict liability)
◆Requires neither subjective nor objective fault
● Subjective “bad mind” fault is most blameworthy. Objective unreasonable risk
creation is less blameworthy; some maintain it shouldn’t even qualify as a criminal
state of mind. No fault-liability requires the least culpability; it holds people
accountable for their actions without regard to fault
➢General and Specific Intent
■ General intent means the intent to commit the criminal act. It’s general intent is general
because it states the minimum requirement of all crimes - namely, that they have to include
a voluntary act, omission, or possession
● Courts and statutes use many synonyms for the general intent notion of mens rea
■ Specific intent applies only to bad result crimes. You might want to think of it as general
intent plus, where “general intent” refers to the intent to commit the actus reus of the crime,
and “plus” refers to the intent to cause a criminally harmful result
➢Model Penal Code (MPC) Levels of Culpability
■ The MPC’s culpability provisions were arrived at only after enormous effort and heated
debate among the leading legal minds, including judges, prosecutors, defense attorneys,
and professors
■ The MPC’S four mental states are ranked according to their degree of culpability and how
they’re constructed to apply to the elements of 1) act, 2) mental state, 3) attendant
circumstances, and 4) causation in “bad” result crimes
■ The MPC’s four mental states are
● 1) Purposely
● 2) Knowingly
● 3) Recklessly
● 4) Negligently
■ The MPC specified that all crimes requiring a mental element (most minor crimes and a few
felonies don’t) have to include one of these degrees of culpability
● Where codes don’t specify a level of culpability, recklessness is the default state of
mind
➢Purposely
■ Purposely, the most blameworthy mental state, means what we mean by the everyday
expression, “You did it on purpose”
■ In MPC language, “purpose” means having the “conscious object” to commit crimes or
cause criminal results
➢Knowingly
■ In the mental state of knowingly, the watchword is “awareness.” In conduct crimes,
awareness is clear
■ Here, the MPC says it’s enough that I’m aware that it’s “practically certain” my conduct will
cause the bad result
■ It’s important to understand that knowledge is not the same as purpose or conscious
objective
➢Recklessly
■ Reckless people know they’re creating risks of criminal harm. But, they don’t intend, or at
least they don’t expect, or don’t care, if they cause harm itself
■ Reckless (conscious risk creation) isn’t as blameworthy as acting purposely or knowingly
because reckless defendants don’t act for the very purpose of doing harm; they don’t even
act knowing harm is practically certain to follow. But reckless defendants do know they’re
creating a risk of harm
■ Criminal recklessness requires more than awareness of ordinary risks; it requires awareness
of “substantial and unjustifiable risks”
■ The MPC proposes that fact finders determine recklessness according to a two-pronged
test:
● 1) Was Defendant aware of how substantial and unjustifiable the risks that they
disregarded were?
● 2) Does Defendant’s disregard of risk amount to so “gross a deviation standard” that
a law-abiding person would observe in that situation?
◆The first prong of the test is subjective. It focuses on this particular
defendant’s awareness, that is, it can’t be compared to any other defendant’s
awareness or to a reasonable person's awareness
■ Most reckless actors probably hope they don’t hurt anyone. Or at most, they don't care if
they hurt anyone
➢Negligently
■ Acting negligently refers to unconsciously (unreasonably) creating risks
■ Negligent defendants, like reckless defendants, have to create “substantial and unjustifiable
risks” - risks that grossly deviate from the ordinary standards of behavior
❖Liability Without Fault (Strict Liability)
➢There are enormous numbers of minor crimes where there’s liability without either subjective or
objective fault
■ We call this liability without fault strict liability, meaning it’s based on voluntary action alone
➢Strict liability makes accidental injuries a crime
➢Supporters of strict liability make two main arguments
■ 1) there's a strong public interest in protecting public health and safety
■ 2) the penalty for strict liability offense is almost always mild (fines,not jail time)
■ Critics say its too easy to expand strict liability beyond offenses that seriously endanger the
public
● They’re always wary of making exceptions to blameworthiness, which is central to
the mens rea principle
● It does no good (and probably a lot of harm) to punish people who haven’t harmed
others purposely, knowingly, recklessly, or at least negligently
❖Concurrence
➢The principle of concurrence means that some mental fault has to trigger the criminal act in conduct
crimes and the cause in result crimes
■ All crimes, except strict liability offenses are subject to the concurrence requirement
➢In practice, concurrence is an element in all crimes where the mental attitude was formed with
purpose, knowledge, recklessness, or negligence
➢In crimes of criminal conduct, the principle of concurrence requires that a criminal intent (mens rea)
triggers a criminal act (actus reus)
➢The criminal conduct has to produce the criminal ahrm; the harm can’t be a coincidence
❖Causation
➢Causation is about holding an actor criminally accountable for the results of her conduct. Causation
applies only to criminal result crimes, the most prominent being criminal homicide
➢Like all elements of crime, prosecutors have to prove causation beyond a reasonable doubt.
Proving causation requires proving two kinds of cause:
■ 1) Factual cause (also called “but for” cause or “cause in fact”) of death, other bodily harm,
and damage to and destruction of property
■ 2) Legal cause (also called “proximate” cause) of death, other bodily harm, and damage to
and destruction of property
➢Factual cause
■ Factual cause (also called “but for” cause or “cause in fact”) is an empirical questions of fact
that asks whether an actor’s conduct triggered a series of events that ended in causing
death or other bodily harm; damage to property; or destruction of property
● “But for” cause means, if it weren’t for an actor’s conduct, the result wouldn’t have
occurred. Put another way, an actor’s conduct triggered a chain of events that,
sooner or later, ended in death or injury to a person or damage to and/or destruction
of property
● “Conduct is the cause of a result when it is an antecedent but for which the result in
question would not have occurred”
■ Factual cause is an objective, empirical question of fact; that's why we call it factual cause
● Proving factual cause in almost all real cases is easy
● Proving “but for” cause is necessary, but it’s not enough to satisfy the causation
requirement
◆To be sufficient, the prosecution has to prove legal (also called “proximate”
cause), too
➢Legal (‘Proximate”) cause
■ Legal cause is a subjective question of fairness that appeals to the jury’s sense of justice. It
asks, “Is it fair to blame the defendant for the harm triggered by a chain of events her actions
set in motion?
● If the harm is accidental enough or far enough removed from Defendant’s triggering
act, there's a reasonable doubt about the justice of blaming Defendant, and there’s
no proximate cause
■ An intervening cause is an event that comes between the initial act in a sequence and the
criminal result
■ The common law, criminal codes, and the MPC have used various and highly intricate,
elaborate devices to help fact finders decide the proximate cause question
❖Failure of Proof “Defenses”
➢Before the prosecution rests its case, defendants can challenge the prosecution's case, like alibi, or
mistaken eyewitness identification.
➢Ignorance of law
■ “Ignorance of the law is no excuse” is one of the most familiar maxims in criminal law. In law
talk, the ignorance maxim means that everyone is presumed to know the law
➢Mistake of fact
■ Unlike the ignorance maxim, you probably don’t know that a mistake of fact is a defense
whenever the mistake prevents the formation of the mens rea of the crime, namely,
purposely, knowingly, recklessly, or negligently
● Mistake of fact can’t apply to strict liability because strict liability by definitions is not
fault-based
■ Mistakes in this sense are sometimes called failure-of-proof defenses because defendants
usually present enough evidence to raise a reasonable doubt that the prosecution has
proved that they formed the mens rea required for criminal liability
➢A general ignorance or mistake “defense”
■ Most criminal statutes and court opinion separate ignorance of law and mistake of fact, and
reject ignorance of the law as a defense, but accept a mistakes of fact defense
■ We follow the MPC’s approach, which is that mistake matters when it prevents the formation
of a mental attitude required by a criminal statute
■ There’s no mental element in strict liability offense. In other words, the trail of mistake
doesn’t have to (in fact, it can’t) lead to fault
➢Morality and ignorance of the law: empirical findings
■ “Conformity with community mores” insofar as we can identify them should shape criminal
law
■ People are more likely to obey the law under two circumstances: they believe the crime is
morally wrong and that the law generally deserves respect
● The law deserves respect when people perceive that its procedures are fair and
impartial
■ The connection between moral institutions and the ignorance of law rule wasn’t urgent when
it was created centuries ago
■ There is a huge number of offenses that vast numbers of people commit, who have no idea
are crimes. And if they do know, their moral sense tells them,”This may be against the law,
but it’s not wrong”
● People particularly disfavored immoral actors, whereas they were not particularly
lenient toward moral actors
● This means, people who resisted allowing a person who acted with wrongful intent to
escape punishment even if he or she was genuinely ignorant of the laws proscribing
that action
■ Laypeople view knowledge of illegality to be an aspect of moral wrongfulness that is relevant
to criminal case outcomes across a variety of regulatory offenses, especially when the illegal
act was part of a moral or neutral course of conduct with no wrongful motivation
■ Study:
● Conviction patterns
◆1) The moral actors were more moral than neutral actors and the immoral
actors
◆2) The neutral actors were more moral than the immoral actors
● Sentencing patterns
◆Immoral defendants received harsher sentences than neutral defendants and
moral defendants
❖Key Cases
➢State v. Fleck (Minn. 2012)
➢State v. Stark (Wash. App. 1992)
➢State v. Jantzi (Or. App. 1982)
➢Koppersmith v. State (Ala. App. 1999)
➢State v. Loge (Minn. 2000)
➢State v. Bauer (Wash. 2014)
➢State v. Jacobson (Minn. 2005)
Purposefully: you tried to do so (shot that one guy)
Knowingly: you were aware it would happen (shot directly into a crowd of people)
Recklessly: you were aware of the risk and disregarded that risk (shot neighborhood randomly
Negligently: you should have been aware of the risk (cleaning gun while drunk with friends)
