09/13/2008

Nature & Structure of Criminal Law and Constitutional

Constraints

Function of criminal law is not coordination but prohibition of behavior.

Most formal distinction between criminal and civil laws are:

 that in criminal law the prosecution is the SOCIETY.
 Public interest v. private interest
o Since criminals violate interests shared by the community.
 State is justified in punishing the criminal utilizing the
resources available to the state.

Special blame attaches to those who knowingly harm other persons.

 Not only do they act to cause harm or at least with the likely result
of causing harm, BUT
 They act with an attitude of disregard for the interest of others.

It is ventured that what truly distinguishes between a criminal and civil

sanction is the judgment of community condemnation which accompanies
and justified its imposition.
 It is the expression of the community’s hatred, fear, or contempt
for the convict which alone characterizes physical hardships as
punishment.
 Thus a “crime” is conduct which, if duly shown to have taken place,
will incur a formal and solemn pronouncement of the moral
condemnation of the community.

CONSTITUTIONAL LIMITATIONS
Article I of the Federal Constitution places 2 substantive limitations on
both federal and state legislatures:
  No Ex Post Facto Laws
o Cannot prosecute by enacting laws that retroactively punish
individuals for committing acts that were not defined in the
statutes.
 No Bills of Attainder
o Prohibits inflicting punishment or denying a privilege without
a judicial trial.

Fifteen out of the Bill of Rights deals specifically with the criminal
justice process.
 The ultimate impact of the fifteen amendments that deals with the
criminal justice system depends upon how they are interpreted by
the judiciary in the course of ruling on individual cases.
o It was not until the Supreme Court came to adopt certain
critical interpretations of the Constitution’s criminal procedure
guarantees that uniformity was set.

Two important doctrinal developments were prerequisites to

establishing extensive constitutional regulation of the nation’s criminal
justice system:
 Relevant guarantees of the Bill of Rights had to be made applicable
in large part to state proceedings.
o This was achieved through the Supreme Court’s interpretation
of the 14th amendment’s due process clause.
 Interpretation was in 1960.
 Adoption of expansive interpretations of individual guarantees.
o A narrow interpretation of the Bill of Rights would have
resulted in different criminal justice system proceedings, that
would not have resulted in uniformity.

Difference between criminal procedure and criminal law:

 Criminal procedure is how you try a case.
 Criminal law is prohibition of certain behavior and punishment of
said behavior.

Some jurisdictions still prosecute crime based on common law.

 Common law crimes are ones created and enforced by the judiciary
in the absence of a statute defining the offense.
 But most jurisdictions are based on criminal statute.

There is no federal/national statute of criminal law.

 States have the power enact and enforce criminal statutes.
o They are free from federal intervention to a large extent on
their criminal statutes and enforcement of the statutes.

Two models of the Justice System:

 Due Process- concerned about with the rights of the accused and
stresses the way the state can abuse its power.
 Crime Control- concerned with the preservation of public order and
with the efficient enforcement of criminal law.

The Queen v. Dudley & Stephens

Queens Bench Division 14 Q.B.D. 273 (1884)

Necessity Defense
 Also known as Choice of Evils Defense.
o Not every state does not have this type of defense.
 Pressure of natural physical forces sometimes confronts a person in
an emergency with a choice of two evils:
o Break the law
o Or comply with those terms and produce a greater or lesser
harm.
  As a matter of social policy, if the harm which will result from
compliance with the law is greater than that which will result from
violation of it, he is by virtue of the defense of necessity justified in
violating it.
 The harm you are trying to avoid must be imminent.
o Cant be a general ongoing problem.
 This is to prevent the defense that things are tough
generally.
 Usually covered by statutes but sometimes it can be set out
through case law.

The Dudley case rests on the fundamental principles of Necessity

Defense.
 Most states allow the necessity defense for homicide cases where it
can be proven.
 Some states do not allow the necessity defense for homicide cases.

 When someone threatens you to commit a crime by blackmail, etc.

Laws forgive the crime committed by an individual that HAD to
commit the crime and utilize the duress defense.
o
o If someone is convicted of a crime and the lawyer issues
claims against errors committed by the court in regards to the
criminal statute:
 Supreme court does not have jurisdiction over that
case, if the issues involved state criminal statutes.
 Your only option is to go through the hierarchy of
state courts.

o States can give more individual rights then what the Supreme
Court has stated is required by the Constitution.
 Example: 4th amendment
 No state can state that the state can enter a
house without a warrant.
 Example: probable cause for searching cars:
  Supreme Court: police does not need a warrant if
there is probable cause.
 State: can grant individual more rights
 In PA before police can search a car, they
need a warrant, unless it is an emergency.

Themes of the case:

 The procedure of the case is completely different from what would
normally happen in the US since:
o Jury makes specific findings.
o Jury decides it cannot come to a decision so judge is forced to
rule the case. (even though it was a hung jury)
 Self preservation sometimes needs to be overruled for the greater
good, in this case to save another human being’s life.
 Should the law hold people to live up to a higher standard?
 Another theme running through the case is selfishness.
o If the individual volunteered to be killed, it would not have
been in a selfish act.

ISSUE
 Is it fair to hold individuals accountable to the law, when forced into
extreme and life threatening situations, in this case murder?

HOLDING & DISPOSITION

 Ds actions cannot be justified by some well recognizes excuse
admitted by law, nor can the compassion for the Ds circumstances
change or weaken the legal definition of the crime of murder

Robinson v. California
Supreme Court of the United States (1962)
 CA at the time had laws making drug addicts illegal. Basically made a
status a punishable crime.

State concedes that someone who is an addict suffers from an illness

and that drug addiction is a disease, which the Supreme Court agrees.

Since the Supreme Court found the statue unconstitutional, that

means that no states in the US can enact a criminal statute that imprisons
someone for being an addict.
 Court found that a crime for merely a status cannot be a conviction.

The aspect of the opinion of the court is that:

 It is unfair to punish someone for suffering from a disease
 No proof of particular conduct. Signs of past conduct but did not
catch them in the act.

ISSUE
 Is it a violation of the 8th amendment of the US constitution for a
state to enact a statute that makes the status of narcotic addiction
a criminal offense?
HOLDING & DISPOSITION
 It is clearly a violation of the 8th and 14th amendment of the
Constitution

REASONING
Justice Stewart:
 Court counsel for the state has recognized that narcotic addiction is
an illness. Therefore it is a form of cruel and unusual punishment,
in violation of the 8th amendment, to enact a statute that makes the
illness a crime.
 States cannot imprison a person even though he has never touched
any narcotics within the state or been guilty of any irregular
behavior there, which again violates the 8th amendment.
 Powell v. Texas
Supreme Court of the US (1968)

Powell was charged with public intoxication and claimed that he was
suffering from the disease of alcoholism and based on the SC’s ruling in
Robinson, it should find him not guilty.
 But courts disagree, since Robinson was a crime based on status,
while Powell committed an act.
ISSUE
 Was it unconstitutional to convict D of a crime due to a
“disease/addiction” he has no control over?

HOLDING & DISPOSITION

 State was within its right to charge and convict D of public
intoxication, thus the Court finds: 1) Robinson is distinguishable
and does not apply to this case; affirms the lower court’s ruling.

It is unconstitutional to punish someone simply because of their

status. (Robinson v. CA)
 An act has to accompany the status to be constitutionally
punishable. (Powell v. Texas)
o Once someone commits an act, States have great leeway in
determining the punishment for the crime as well as defining
the act as a crime.
 For a status you can civilly commit them to treat them.
o The theory is that there is no stigma attached to being
committed for a status. VS being convicted of a crime carries
a status.
 Being civilly committed has been for mentally ill
patients. Or Personality defense.

Standard of Proof
In civil court, proof is only by a preponderance of the evidence, while
in criminal court:
  Proof is beyond a reasonable doubt at trial. (all the elements of a
crime).
o This is a way of safeguarding liberty.

This is required because a standard of proof is essential in cases where

individuals’ life/liberty is at stake.

Theft- Guilty whoever intentionally takes property of another without

permission ( up to 3 years in prison)

Robbery-Guilty whoever intentionally takes property of another

without permission by force or threat of force (up to 10 years)

Aggravated Robbery- Guilty whoever intentionally…. By force or threat

of force and has a weapon or causes bodily injury (up to 20 years).

Theft- As before 3 years

Sentence Statute
 If at sentencing by a preponderance of the evidence the state
establishes that force or threat of force was used (penalty up to 10
years)
 preponderance of the evidence
o The weight, credit, and value of the aggregate evidence
on either side; the greater weight of the evidence; the
greater weight of the credible evidence. In the last
analysis, the probability of the truth; evidence more
convincing as worthy of belief than that which is offered
in opposition thereto.

Beyond Reasonable Doubt

  Supreme Court held that Due Process Clause requires proof beyond
a reasonable doubt of every material element of an offense before
an individual can be convicted of a crime.

 Material Element
o Defined by statute or case law.
o Everything included in the description of the offense
o The conduct
o Attendant Circumstances
o Result of the conduct.
o Prosecutor must prove each and every material element of
the crime and the defendant’s participation beyond a
reasonable doubt.

 Some courts believe that the statement should not have to be given
to the jury.
o Let them figure it out.
o Some courts believe that the statement should be explained
to the jury.
 PA- kind of doubt that would restrain/hesitate yourself
before you act.
 The definition may not be the same based on
restrain/hesitate
 Supreme Court has given a lot of leeway to the states on how to
define the “beyond reasonable doubt”

Not only the material element of the case has to be proved beyond a
reasonable doubt, but the identity of the defendant must be proved beyond
a reasonable doubt.

Whether looking at the evidence in the most favorable light to the

government, a rational jury can find that each and every material element
was proven beyond a reasonable doubt.
 Because the credibility is up to the fact finder, you hypothetically treat
each government witness as if the government witness is going to be
believed.
 You decide whether or not there is legally sufficient evidence to
convict.

Credibility or believability of witnesses is a matter left for the fact

finder, which is the jury, if it is a jury trial.
 Evidence is legally sufficient for a conviction if the prosecutor
presents evidence which if believed by the fact finder would
establish each material element of the offense.
o Each fact finder is free to decide which witnesses to believe
and evidence to accept.

One person if believed, is legally sufficient evidence to convict the

defendant.
 Collaboration is not required
o Because crime happens without collaboration (sudden and
victim was alone so then requirement collaboration would be
unjust).
 If the jury takes the testimony, then it is sufficient.
 If you are found guilty, you cannot appeal on the basis of the
testimony of the witness.
o To win an insufficiency claim a defendant must show that no
rational fact finder, even if accepted all of the government’s
case, could conclude that the government established every
material element of the offense beyond a reasonable doubt.

Commonwealth v. Scott
1st judicial district of PA Family Division (1988)

Statute for receiving stolen property:

 A person is guilty if he possesses a stolen vehicle, knowing that it
was stolen.
o 4 properties of the statute
 Knowledge that it was stolen,
  Possession of property
 Vehicle
 Stolen.

If case goes to appeal what would the defense lawyer argue:

 D did not have guilty knowledge that the car was stolen.
o Might not know what a broken steering column looks like.
 D was not in possession of the vehicle.
 D was never positively identified.
o Police says that he was positive that, the D was the guy that
he caught, not that D was the guy that came out of the car.

Actual case lost on appeal on guilty knowledge since steering column,

flight from police etc, can be assumed to be true.

ISSUE
 Was it proven beyond reasonable doubt that D was guilty of the
charges?

HOLDING & DISPOSITION

 The evidence presented is court proves beyond reasonable doubt
that D is guilty, court finds that D be committed to Saint Gabriel’s
Restitution and fined $50 to pay for damages.

********************************************************
****
 The Act Requirement
Voluntary Acts
One basic premise of our criminal legal system is that no crime can be
committed by bad thoughts alone.
 An act, or of an omission to act when there is legal duty to act, is
required too.
 Just thinking of a crime, as long as that thought does not produce
action, does not constitute a crime.
o Involuntary actions do not form the basis of criminal liability
such as:
 Reflexive, convulsive, conduct that is not the product of
the actor’s determination

Justification for the requirement of an act:

 A person’s thoughts are not susceptible of proof except when
demonstrated by outward actions.
o All though the above is true most of the time, it fails to take
into account when someone confesses that he has entertained
a certain intent.
 It is difficult to distinguish between mere fantasy and fixed intent.
 Most persuasive, is the notion that the criminal law should not be so
broadly defined to hold those people who entertain criminal
schemes but never put those ideas into action.

There has been some difficulty in the precise meaning of “voluntary” in

criminal law.
 Some hold that a voluntary act is said to be an external
manifestation of the will.
 Or that it is the behavior which would have been otherwise if the
individual had willed or chosen it to be otherwise.
There are those who believe that the term is indefinable

Omission as an Act
  A defendant’s failure to act will result in criminal liability provided
that 3 requirements are satisfied:
o Legal Duty to Act
 D must have a leagel duty to act under the
circumstances:
 Statutes: filing income tax, reporting accident, etc
 Contract- obligating D to act such as lifeguards or
nurses.
 Relationship between D and victim.
 Voluntary Assumption of Care
o Between D and victim
 Instances such as Jones case.
 Although in general there is no common law duty to
help someone in distress, once aid is given, Good
Samaritan may be held criminally liable for not
satisfying reasonable standard of care.

The common law crimes all require an act or omission in addition to a

bad state of mind.

But an attempt or an agreement with another person to commit a

crime may be criminal.
 Reason is that an attempt/conspiracy requires some activity beyond
the mere entertainment of the intent.

Mere thoughts must be distinguished from speech, an act sufficient for

criminal liability may consist of nothing more than the movement of the
tongue so as to form spoken words.
 Some crimes committed by the act of speech are:
o Perjury and false pretenses.

Justification for the requirement of an act:

  A person’s thoughts are not susceptible of proof except when
demonstrated by outward actions.
o All though the above is true most of the time, it fails to take
into account when someone confesses that he has entertained
a certain intent.
 It is difficult to distinguish between mere fantasy and fixed intent.
 Most persuasive, is the notion that the criminal law should not be so
broadly defined to hold those people who entertain criminal
schemes but never put those ideas into action.

What is the most important in criminal law is the idea that to be

considered a crime, the act has to be voluntary.
 It is hard to imagine how we can enforce and deter future acts by
punishing involuntary acts.

There has been some difficulty in the precise meaning of “voluntary” in

criminal law.
 Some hold that a voluntary act is said to be an external
manifestation of the will.
 Or that it is the behavior which would have been otherwise if the
individual had willed or chosen it to be otherwise.
There are those who believe that the term is indefinable.

Example of Seizures:
 What if he never had the problem, and developed the condition and
crashed his car and killed someone suddenly? Was there a
voluntary act of getting in the car?
o Getting in the car and driving was the voluntary act
committed by the defendant. But cannot be held liable.
 But as in Decina, since he knew of his history of seizures, the
voluntary act committed was also getting in the car.
o He was negligent in his behavior, and should not have been
acquitted.

The no voluntary act defense is not a broad defense and its scope and
application in real life situation is very minimal.
 Jones v. United States
US District court for D.C. (1962)

What was the court’s theory of why Jones should be responsible for
the death of the child?
 Jones had a duty to provide sufficient care to the children and by
her failure, Jones was responsible.

Defendant was able to appeal the case on the technicality during the
trial:
 Defendant claims that the evidence presented was insufficient to
prove that she breached her legal duty to the children so should be
dismissed.
 Second reason being that trial court erred in failing to instruct the
jury that jury needed to first determine that she had a legal duty to
the children.
o Since if it couldn’t be proven that she had a legal duty to the
children, she would not be guilty of the manslaughter
charges.

Trial court did err in failure to instruct the jury as to the requirement
of the legal duty of the defendant so that is why the case is remanded for
new trial.
 So in the new trial, the judge would instruct the jury as to the
requirement of duty of care.

ISSUE
 Can a person be said to be committing a crime, if they fail to
protect an individual in their care from harm?
 Do parents have a special legal duty to protect their children from
harm?

HOLDING & DISPOSITION

  In this case, the failure to live up to the legal duty of protecting and
taking care of the children can be said to be a crime, as long as it
can be proven that both A & D was legally bound to care for the
children and protect them from harm

Model Penal Code § 2.01

 Defines what the requirements are to be classified as a voluntary
act and what an involuntary act is.
 Sets forth the condition that the liability for commission of an
offense may not be based on an omission unaccompanied by action
unless:
o Omission is expressly made sufficient by the law
o Duty to perform the omitted act is otherwise imposed by law.
 Possession is an act, if the possessor knowingly received or bought
the thing and that for a sufficient period to have been able to
terminate his possession.

Model Penal Code § 2.01(3)

 Unless the mission is expressly made sufficient by the law defining
the offense, a duty to perform the omitted act must have been
otherwise imposed by law for the omission to have the same
standing as a voluntary act for the purpose of criminal liability.

There are no laws that criminalize any failure to offer assistance,

without requiring a special relationship. Vt. Stat. Ann. Tit. 12, §519.
 The only state that is an exception to the above is Vermont.
o Law specifies that as long as the help can be rendered
without danger or peril to oneself shall be required to give
reasonable assistance to the exposed person unless that
assistance is being provided by others.
o Max fine of $100 for violating above statute.

Misprision of Felony
 Old common law, a misdemeanor which was defined as the failure
to report or prosecute a known felony.
  Most modern criminal codes do not include misprision of felony as a
crime.
o But most criminal codes have obstruction of justice which is a
similar offense.
 But the federal criminal codes do 18 U.S.C. §4
o Makes it unlawful for someone who has knowledge of a
commission of a felony, that is cognizable by a court of the
US, hides and does not make it know can be fined or
imprisoned for no more than 3 years or both.

Awareness of Possession
 Crime of possession requires proof that the defendant was aware
that he or she possessed the prohibited item.
o Jury must prove beyond reasonable doubt that D was aware
of the possession of the item.
o If the defendant so requests, court must instruct jury that the
guilty knowledge element includes:
 Knowledge of possession AND
 Knowledge of the nature of the illegal substance.

Wheeler v. United States

D.C. Court of appeals (1985)

The defense is that there is not enough evidence to prove that D

possessed the heroin beyond a reasonable doubt.
 Loses the case.

Most cases are constructive possession cases:

 Because the government has to prove that the defendant did in fact
possess the controlled substances or knowingly possessed control.

Constructive Possession
 Possession crimes do not require proof that the defendant was
physically in possession of the item.
 Is when an individual knowingly in a position or has the right to
exercise dominion and control over an illegal substance, and has
some appreciable ability to guide its destiny.
o No distinction is made between direct and circumstantial
evidence and the Trier may infer knowledge from
circumstantial evidence.

FACT SUMMARY
 Defendant (D) Wheeler was charged with possession of Heroin and
found guilty. D appeals.
 Police receive information that women were selling heroin out of
room 201 of the Logan Inn Hotel. Police execute a search warrant
on 1/1/82 on room 201.

ISSUE
 Can an individual be charged with constructive possession of an
illegal substance, when the substance was found in a room with
several other individuals and not directly on the person charged?

HOLDING & DISPOSITION

 Generally courts have been reluctant to impute possession in cases
absent proof of his involvement in criminal enterprise, or proof of
that he is something other than a visitor. But the evidence of the
case indicates that there is sufficient proof and beyond speculation
that D a resident of room 201 and was aware of the presence of
illegal substances in the room. Court affirms the lower court’s
decision and dismisses the case.

REASONING
 Although the government’s evidence is circumstantial, it provides
sufficient inferences to support the judgment of conviction.
 D admitted to the police that she was indeed a resident of room
201 and the evidence proved that D occupied the bed where the
heroin was recovered.
 ********************************************************
*****
Mens Rea- Culpable Mental States & Criminal Statutes
Mens Rea
 Modern crimes are said to not only require a voluntary act (Actus
Reus), but also a certain sate of mind or MENS REA, accompanying
the act.
o Known as Guilty Mind.
o Defining the required state of mind in the context of specific
crimes has been difficult and much debated historically.
 Most jurisdictions have adopted the definition of Mens Rea from the
Model Penal Code.

If you were indicted for recklessly causing bodily injury.

 If the government proves recklessness or higher is sufficient to hold
a verdict.

Hierarchy of Mens Rea

 Purposely (intentionally);
 Knowingly (knew of a high probability);
 Recklessly (subjective)
o consciously disregards what one knows; subjectively aware;
o substantial & unjustifiable risk (societal judgment)
o Gross deviation from standard of care (societal judgment)
 Negligence (objective)
o (reasonable person would have been aware of)

Circumstantial evidence is sufficient to prove beyond a reasonable

doubt that implicates the defendant.
 No statement from defendant in regards to his mental state is
required at the time of the crime.

Model Penal Code §2.02 GENERAL REQUIREMENTS OF

CULPABILITY
1. Minimum Requirements of Culpability
 Except as provided in Section 2.05 a person is not guilty of an
offense unless he acted purposely, knowingly, recklessly, or
negligently as required by law, each material element of the
offense.

2. Kinds of Culpability Defined

 Person acts purposely with respect to a material element of an
offense when:
i. If the element involves nature of his conduct or a result thereof
it is his conscious object to engage in conduct of that nature or
to cause such a result.
b. Knowingly
o Person acts knowingly with respect to a material element of
an offense when:
 If the element involves the nature of his conduct or the
attendant circumstances, he is aware that his conduct is
of that nature or that such circumstances exist;
 If the element involves a result of his conduct, he is
aware that it is practically certain that his conduct will
cause such a result.
c. Recklessly
o Person acts recklessly with respect to a material element of
an offense when he consciously disregards a substantial &
unjustifiable risk that the material element exists or will result
from his conduct.
 Risk must be of such a nature that considering the
purpose of the actor’s conduct, its disregard involves a
gross deviation from the standard of conduct of a law
abiding individual.
 Negligently
o Person acts negligently when he knowingly commits the act
when he knows there is a substantial risk involved.

7. Requirement of Knowledge Satisfied by Knowledge of High Probability.

  When knowledge of the existence of a particular fact is an element
of an offense such knowledge is established if the actor was aware
of that probability, unless he actually believes that it does not exist.

Distinguishing Knowledge from Purpose & Recklessness

 Ordinarily the legislature determines the level of culpability must be
established to prove the violation of a particular criminal statute.
o When the statue is silent or ambiguous, the courts must
determine the legislature’s intent.
 “Knowledge” may be established in some jurisdictions if
defendants are merely aware that their conduct will
cause a particular result is highly probable.
 Recklessness is defined as conscious disregard of a
substantial & justifiable risk that a material element of
the crime will result.

Deliberate Ignorance as Knowledge

 If stranger offers you money to take a suitcase from one city to
another, the person scare of possibly finding drugs chooses not to
open the suitcase and later is arrested for drug trafficking, is there
a valid defense for lack of knowledge?
o Number of federal courts have held that a Mens Rea of
“knowledge” can be demonstrated in such “ostrich” cases.
 Interpreted as D acted knowingly if D was aware of a
high probability that a certain fact existed but
deliberately avoided finding out for sure, to escape
criminal liability.
 It is valid defense if D really believed that the fact did
not exist (but may be harder to prove).

Some argue that this line of reasoning resembles “recklessness” than

“knowledge”.
 Treating deliberate ignorance as “knowledge” risks imposing liability
based on D’s reckless failure to ascertain certain facts.
o Which leads to guilt even when the knowledge required by a
criminal statute is not actually proven.
  Critics state that a statutory revision is needed and to
add recklessness or specific deliberate ignorance would
correct and limit the deliberate ignorance defense.

Model penal code has agreed with those courts that have been willing
to infer knowledge in “ostrich” cases.
 §2.02(7) states that if the D knew of a high probability of an
element of an offense in the act he is carrying out, but chooses to
ignore them out of fear, then knowledge is established.

Distinguishing Motive from Intent

 D’s motives or overarching reasons for acting in a particular way,
must be distinguished from their intent.
o Motive is the moving cause which induces action: DESIRE
o Intent is the purpose or design which an act is done: WILL
 Criminal law generally condemns only acts not bad motives.
o A good motive itself is not a valid defense to criminal charges.
 Because the prosecution can still prove they had the
requisite Mens Rea.
 Good motive may be considered in mitigation for
punishment or for a known defense such as duress, self
defense but;
 Does not normally negate Mens Rea.

Recklessness & Negligence

 Model penal code extends criminal liability to those who act
recklessly or negligently.
o Recklessness requires evidence that the actor was aware of &
consciously disregarded the risk.
 Recklessness requires a SUBJECTIVE AWARENESS of
that risk and a decision to disregard it.
o Negligence exists even when the actor was not actually aware
of the risk, so long as he should have been aware of it.
 Negligence requires both a SUBJECTIVE & OBJECTIVE
AWARENESS.
 What the actor knew about the context
  The inferences the actor should have drawn.
 Model penal code sided with the majority position.
o Minority approach is to distinguish recklessness from
negligence based merely upon the degree to which D’s
conduct deviated from reasonable behavior.
 Under this view the D’s subjective awareness is not
required but the conduct must be more unreasonable
than would suffice for mere negligence.

Analytical steps the jury must take to establish recklessness:

 Examine the risk & the factors that are relevant to how substantial
it was & the justification for taking it.
o Question is asked from the POV of the actor’s perceptions
 How aware was he of the risk
 Of factors relating to its unjustifiability.
o Make culpability judgment in terms of whether D consciously
disregarded the risk.
 Does D’s disregard constitute a gross deviation from a
law abiding reasonable person.

Distinguishing Criminal Negligence from Civil Negligence

 It is said that criminal negligence differs in degree from the type of
tort of negligence.
o But the distinction is hard to perceive in practice.
o 3 significant factors to be considered in measuring criminal
negligence:
 D’s role in creating the risk
 Proximity of the ultimate harm in relation to D’s acts
 Extent to which the immediate harm was predictable
and apparent.

Should criminal negligence be abolished?

 Some feel that criminal negligence and its punishment serves no
purpose, no moral faults were involved when D was not aware that
he was doing something wrong.
 o Feel that education or corrective treatment not punishment
should be the proper social response in dealing with persons
with inadequate awareness.

But the Model penal code states:

 When people are aware that negligence can lead to punishment,
they are supplied with an additional motive to take care before
acting.
o This motive may promote awareness and thus be an effective
measure of control.

State v. Perry
224 Minn. 346, 28 N.W. 2d 851 (1947)

Intent: prelude to Mens Rea.

The elements of Indecent Exposure was there:

Exposure (naked)
Deliberate intent to be lewd
In sight of public
Deliberate (MENS REA)

FACT SUMMARY
 Defendant (D) Perry is charged with indecent exposure for being
nude in his dorm in front of a window. Convicted in trial court and
sentenced to 90days in jail. D appeals.

ISSUE
 Can a man be guilty of indecent exposure, when he has no intent to
commit the crime and is standing naked in his house?

HOLDING & DISPOSITION

 An individual cannot be convicted of indecent exposure when he is
lacking intent to indecently expose himself to the public. Court
reverses the lower court’s decision and orders judgment discharging
D.

Gordon v. State
Appeals court of Alabama (1875)

Strict liability
 Somebody can be convicted even when there is no Mens Rea.
o But the fact that the statute is silent, it does not mean that
the legislature did not intend a Mens Rea requirement.
 Since the basis of criminal jurisprudence is based on a
Mens Rea/intent to commit the crime.
 The courts are forced/required to determine the
intent of the legislature and determine whether or
not Mens Rea is required as an element of the
offense.
Public Welfare Crimes
 Often related to strict liability crimes.
 This type of crime involves violation of health and safety
regulations.
 Examples are: serving adulterated foods, using incorrect weights in
commerce, etc.
 Normally do not lead to long jail sentences or extremely large fines.
 Because these modest penalties are imposed in the context of
significant public health or other regulatory concerns, many find
dispensing with any Mens Rea requirement quite reasonable.
 Also allows prosecutors to punish the negligent or the reckless
where actual proof of culpability would be difficult.

Model Penal Code Position on Strict Liability

 Strongly objects to strict liability “crimes” but allows for strict
liability “violations” which do not carry a potential for prison terms
or the stigma of criminal conviction.
  Opinion that to condemn an individual of a crime where culpability
cannot be determined is too fundamental to be compromised.

If court interprets a vague statute and arrives at a different conclusion

then what the legislatures intended the legislature can amend the statute to
kill the ruling of the case.
 If after Staples, the legislature amended the statute and explicitly
states that Mens Rea is not required, then Staples ruling will
become dead law.

Judge instructed the jury by denying D’s request for jury instructions,
that he did not possess the Mens Rea of voting illegally:
 Judge believes it is a strict liability case
o Statute does not require an intent or knowledge.
 Government does not need to prove D’s intent nor his
negligence.
o D’s state of mind does not matter. It is all irrelevant.

FACT SUMMARY
 Defendant (D) Gordon, is charged with voting before the legal age
(21), which is a felony in Alabama.
 D was told by his family and close friends that he was 21 before the
election and frequently told him in the months leading up to the
election, that he will indeed be 21 and allowed to vote.

ISSUE
 If an individual acting in good faith, on information fairly obtained
commits an act that is prohibited by law, did he possess the
requisite intent to be guilty of the crime committed?
HOLDING & DISPOSITION
  An individual who acted in good faith based on information fairly
obtained cannot be said to have committed a crime, since he lacked
the intent to commit a crime. The court finds that the lower court
erred in its decision and judgment must be reversed and remanded
for a new trial.

Staples v. US
US Supreme Court (1994)

Model Penal code is not controlling on the federal statutes.

Court reasons that Freed and Balint was distinguishable since (both
are based on strict liability):
 Drugs normally alerts the person to the possibility that it was a
dangerous and controlled substance. (Balint)
 Grenades are normally thought of to be extremely dangerous, and
should have known that it was probably against the law to possess
it unregistered. (Freed)
o Government in Freed did not need to prove intent/mental
knowledge.

FACT SUMMARY
 Appellant (A) is indicted on charges of possessing a unregistered
machinegun in violation of 26 U.S.C. §§5801-5872.
 Upon executing a search warrant at A’s house, agents discovered
an AR-15 suspected of being modified to fire automatically which
carries a prison term of 10 yrs if it is unregistered. D claims that
while the rifle was in his possession it never fired correctly, and that
he was unaware that rifle had been converted.

ISSUE
 If a statute is silent on the Mens Rea requirement, can it be said
that Mens Rea is not required to convict an individual, or is merely
the act itself sufficient to convict the individual for violating the
statue?

HOLDING & DISPOSITION

 If a statute is silent on the Mens Rea requirement, it does not mean
that Congress intended to dispense with the conventional Mens Rea
element of the crime. Existence of Mens Rea is the rule of, rather
than the exception to, the principles of criminal jurisprudence.
Court reverses the appeal court’s ruling, and case is remanded for a
new trial consistent with this opinion.

People v. Wendt
Appeals Court Illinois (1989)

Mistake of Facts
 Mistake of facts is a defense if it negate the Mens Rea required to
commit the crime.

Model Penal Code §2.04(1)(a)

 Mistake of fact does constitute a defense it negates the purpose,
knowledge, belief, recklessness or negligence required to establish
a material element of the offense.
o It is a defense even if the mistake was reckless for crimes
requiring purpose and knowledge.
o Crimes requiring recklessness, a mistake of fact is a defense
so long as it was not reckless.
o For crimes requiring negligence, a mistake of fact is a defense
provided the mistake was not negligent
 Must have been a reasonable mistake.

Mistakes of Law that Negate Mens Rea

 Ignorance of the law is a defense if it negates the Mens Rea
required to commit a crime.
o Thus Model Penal Code §2-204(1)(a) does not distinguish
between a mistake of fact and a mistake of law.
 Nevertheless, the familiar maxim continues to have a great deal of
force because as reflected in Wendt, and §2.02(9) most crimes do
NOT required proof that D was aware of the law.
o As a result mistake of law RARELY negates Mens Rea.
 In Cheek v. United States:
o Supreme Court held that the federal criminal statutes
penalizing the “willful” attempt to evade the tax laws and the
“willful” failure to file a federal tax return require the
prosecution to prove that D knew of the law and voluntarily
and intentionally violated the duty.
o Court thought that the complexity of tax laws justified carving
out an exception to the traditional rule that mistakes of law
afford no defense in tax law.
 Court ruled differently then it did in Wendt and found
that if he truly believed that the IRS code did not
purport to treat wages as income, and jury believed him
then he did not possess willful intent.
 Court also held that the D’s belief that the income
tax is unconstitutional would not provide a
defense.
 At least two general points emerges from these cases, the language
of a criminal statute can make “ignorance of the law” a defense
where it otherwise might not be.
o Since “willfully” is neither plain nor uniform.
 Second the concept of the common law maxim “ignorance of the
law is no defense” maybe less universally true today.

Mistakes of Law that Do Not Negate Mens Rea

 There are 4 situations in which an erroneous belief that one’s
conduct is lawful generally constitutes a defense even though the
mistake does not negate the Mens Rea required to commit the
crime (is a valid defense and you could get off):
o When the law is not published
Given that all criminal statutes are published, the 1st

category has no real practical significance today.
o When the mistake arises from reasonable reliance on a
statute that is later determined to be invalid
 In State v. Godwin (N.C.) public officials were charged

with failing to carry out certain of their duties. In their
defense, they states that they were relieved of their
duties by statute.
 It was later found that the statutes were
unconstitutional and were revoked. Courts found
that they were acting within the theory of
government when they believed that they were
relieved of their duty by the statute.
o When the mistake is based on reasonable reliance on a court
decision
Ostrosky v. State (Alaska) D was charged with fishing

without a license. Court found that the law for license
was unconstitutional. While the state appealed, D
continued to fish and was arrested again. Supreme
Court reversed the court’s decision and also found that
if D was acting with a reasonable reliance on the court’s
decision he was not guilty. But was found guilty since
people warned him before.
o When the mistake arises from reasonable reliance on a public
official who is in a position to interpret the relevant statutes.
 Some jurisdictions limit the reach of this defense only
written interpretations suffice to make out a defense
and the identity of the public official issuing the
interpretation can be important.
 Wendt restricted the defense to officials
authorized to interpret the statute.
o Reliance upon an Attorney’s legal advice.
 Most state courts say that even if an attorney
erroneously tells the client that the conduct is legal, it
does not provide a valid defense.
 Hopkins v. State/ People v. Honig
 By contrast federal courts more commonly recognize
“advice of counsel” as a defense at least with regard to
federal tax cases or other specific complex statutes
requiring a “willful” violation.
 Government acknowledges the Mens Rea requirement that “whoever
fails to willfully file a tax return, is guilty”.
 Defense is that based upon his research, he was not required to file
a income tax return.
o Not individuals but only corporations can be taxed for income.

The way the court interprets the statute in this case, is that the fact
that he knew the consequences of his act of failing to file a tax return,
constitutes willful failure to file tax return.
 Basically all of his evidence is irrelevant and unfounded.

FACT SUMMARY
 Defendant (D) Wendt, was charged with willfully failing to file an
income tax return for 1984. Jury finds him guilty, and is put under
probation for 2.5yrs with certain conditions, D appeals.
 D claims that through his reliance upon court opinions, articles of
law, etc that he had in good faith come to believe that he was not
subject to income tax because only corporate profits, not individual
wages qualified as income and that a bona fide misunderstanding
negates willfulness.

ISSUE
 If D has a misunderstanding of the law, and fails to act in
accordance with the law due to his beliefs, can it be said that he is
not guilty since he did not voluntarily intentionally violate the law
and is that a valid defense?

HOLDING & DISPOSITION

 The ignorance or mistake of law claimed would not constitute a
valid defense under the criminal code. D possessed conscious
awareness that a failure to file his return was practically certain to
be caused by his conduct, thus he was aware of the consequences
of his actions. Court affirms the lower courts ruling.
 Commonwealth of PA v. Robinson
Supreme Court of PA (1981)

Bigamy and Statutory Rape

 Under common law it was held traditionally as strict liability crimes
even though it can lead to prison sentence and were not considered
regulatory “public welfare” offenses.
o Courts have started to offer a reasonable mistake as a valid
defense in bigamy cases.
o But statutory rape still remains as a strict liability crime.

Statutory rape
 With an individual under 14.

The evidence does not matter if the statute is not unconstitutional.

 Since the statute specifically states that the crime is strict liability.

Is a strict liability for a felony constitutional?

 To require no Mens Rea for a felony goes against the current notion
of the Mens Rea requirement in the commitment of a crime.

Court points out that statutory rape is one of the few crimes that sticks
out for a crime of strict liability.
 Model Penal Code has also made an exception of statutory rape
being an exception of the Mens Rea Requirement.
o Strict Liabilty.

FACT SUMMARY
 Defendant (D) Robinson is an 18yr old male who engages in
consensual sex with the Complainant (C) a 13 yr old girl.
 At the time of the act, C led D to believe that she was 16 and gave
him a false name.

ISSUE
  Is it unconstitutional to convict a defendant of statutory rape
without culpability, when the defendant is led to reasonably believe
that he is engaging in consensual sex with someone not under the
age of 14?

HOLDING & DISPOSITION

 It is not unconstitutional for state legislatures to enact a statute
that does not require culpability or a defense of mistake of facts in
convicting individuals for statutory rape. Court affirms the lower
courts ruling.

US v. Williams
District Court of Maryland (1971)

Voluntary Intoxication as a Defense to Specific Intent Crimes.

 Fact that D was intoxicated may be a defense if it negates the Mens
Rea required by the crime.
o Courts are often reluctant to find that a D’s voluntary
intoxication actually negated specific intent.

Voluntary Intoxication as a Defense to General Intent Crimes

 Courts are virtually unanimous in rejecting voluntary intoxication as
a defense against General Intent.
o People v. Kelly N.W.2d 821 Michigan Supreme Court held that
voluntary intoxication is no defense to the crime of child
torture since it is not a specific intent crime.
 Moreover half of the American jurisdictions have now abandoned
the specific/general intent dichotomy in ruling on intoxication
claims.
o Preservation of law and order would be severely undermined
if voluntarily intoxicated offenders could be acquitted of
criminal offenses such as assault.

Some courts have moved towards rejecting voluntary intoxication as a

defense since large number of crimes are committed by intoxicated
offenders.
 Model Penal Code §2.08(1)
 Refuses to recognize voluntary intoxication as a defense unless “it
negative an element of the offense”.
 In 2.08(2)
o When recklessness establishes an element of the offense, if
the actor due to being intoxicated, is unaware of a risk of
which he would have been aware had he been sober, such
unawareness is immaterial.
 IT CANNOT NEGATE RECKLESSNESS.
 In Hendershott v. People (Colorado 1982) it
stated that self induced intoxication by its very
nature involves a degree of moral culpability.
 Since one is aware that the resulting
condition is a source of potential danger to
others.

Involuntary Intoxication
 Unlike voluntary intoxication, it is recognized universally as a valid
defense if it negates the Mens Rea required for the crime.
o In many states it affords a defense if it creates a state of
mind that would fall under the states’ definition of insanity.
o Involuntary intoxication is when one is unaware that he is
ingesting a substance, or under force or duress.
o Neither alcoholism and narcotics addiction is usually sufficient
enough to make out a defense of involuntary intoxication.

Voluntary intoxication in some instances can be evidence to

demonstrate that you did not possess the Mens Rea to “commit” the act.
 Does not allow you to avoid recklessness or negligence requirement
of Mens Rea.
o The principle behind that is the idea that when you were in
the process of taking the drugs/alcohol, you behaved
recklessly/negligently for consuming it when you knew you
may behave in an irrational manner.
 Statute Bank Robbery
 Whoever takes by force or threat of force property or money of
bank exceeding $100 with intent to steal.
o The other charge he is charged with does not require the
intent to steal.

Court does not recognize D’s defense since:

 Evidence points to the fact that he was able to draft the note,
 And that he was able to take the money out of the bank.
o Points to the fact that he did have the intent to steal.

A rational jury could find in this case that he did possess the capacity
to steal.

FACT SUMMARY
 Defendant (D) Williams, is charged with robbing a bank for $4,727.
 D claims he was taking drugs and drinking heavily the day before
and the day of the crime and that he was so intoxicated that he was
incapable of forming such specific intent.

ISSUE
 If during a crime, the defendant is intoxicated, does it offer a valid
defense against Mens Rea and can D said to have the necessary
intent in committing the crime?

HOLDING & DISPOSITION

 Although D was in fact intoxicated while robbing the bank, he was
not so intoxicated as not to understand what he was doing or to not
have the intention to steal from the bank. Court finds that there is
enough evidence as required for conviction.
09/13/2008
09/13/2008