Criminal
Law Class Notes
We
finished the tools, now we create the foundations for the house.
The
class changes now. There will be rules
to learn. We hope to use our tools to
see if the rules that we learn make sense.
Hopefully, this will help us learn the rules, or alternatively, to
decide they really don’t make sense.
We’re
also going to be spending more time with the Model Penal Code. Make sure to read the Model Penal Code
sections assigned for each class. At
least half the exam will cover the Model Penal Code.
The
commentaries to the Model Penal Code are essentially the legislative history of
the Code. They explain what the
provisions mean and how they depart from the common law. They are very useful for understanding the Model
Penal Code. In exceptional cases, we’re
given the commentaries in the casebook, but usually they are omitted because
they are so lengthy. However, the
commentaries to the Model Penal Code are available in the library if you’re
interested in more insight on the Code’s provisions.
“Beginning
to build the house”
What
is a crime? We talked about this the first (or second) day of
class, but we’re going to speak now in terms of actus
The
actus
All crimes have an actus
Actus
Actus
Social
harm means something very specific, yet it has a very broad meaning.
The
“Elements” of a Crime
This
is an excellent way to think about any factual pattern that you’re dealing
with. How do you break down the
components of the crime you’re discussing?
At exam time, this is the way we should organize our answers.
1. Voluntary Act
(or omission)
2. Social Harm
3. Mens Rea
4. Actual
Causation
5. Proximate
Causation
We
will also learn about actual and proximate causation in tort law. However, there are many terms that are
similar in criminal law and tort law, but the terms can have different
meanings.
Martin
is convicted of “being drunk on a public highway”. It turns out that he is arrested at home and
taken out onto the road. What did he do
to get arrested and taken out of his home?
Did they let him out on the highway?
Does
he deny he was intoxicated? Does he deny
that he was in a public place? Does he
deny that he was sloshed in public? No,
no, no. How can the plaintiff argue that
he’s not guilty?
He
says that the statute implicitly requires him to voluntarily go to a public
place while drunk.
What
if we change the statute so that the defendant only needs to be found in
a public place while drunk as opposed to having the defendant appear in
a public place while drunk?
The
court in this case reads into the word “appears” the suggestion of a “voluntary
appearance”.
We’ll
talk more later about what constitutes a voluntary act.
Punishing
thoughts
Why
don’t we punish mere thoughts? Why do we
require conduct?[1]
What
if we could read other people’s thoughts and it was perfectly reliable? What if, on the other hand, we had something
like “Pre-Cogs” who can see the future?
The
utilitarian would object to the mind-monitoring scenario because it would cause
pain to everyone who had the electrodes implanted. Living in that world would be
disturbing. It would take away the
pleasure of thinking any thought you want as long as you keep it to yourself.
Say
we’re reading people’s thoughts, and we’re reading very strong thoughts of
intent. What would the retributivist
say? They would probably be opposed to
it, at least in the secular world. We
punish people in our tangible world, in a retributive sense, for making the
wrong choices, for choosing to do the wrong things. Until the person at least begins to
act it out, the retributivist is not going to punish. In some sense, they would even like to reward
the person for having bad thoughts but successfully choosing not to do
it.
Let’s
change the factual pattern in Martin: let’s take the police out of the
picture. Say Dressler gives on a huge
estate. He gets himself drunk and tells
his wife he’s going to get into his private plane and fly across his huge
property and then jump out of the plane.
He calls the FAA and finds out the weather will be perfect for this
parachute leap. Dressler flies to the
center of his property, jumps out, then there’s a really strong wind that he
could not have foreseen that blows him all the way off his property, into a
public place, where he manifests his drunken condition. Is he guilty of public drunkenness?
Is
there a “transfer of intent” between voluntarily jumping out of a plane and voluntarily
being punk in drublic?
There
are two plausible theories.
Time-framing
When
you look at particular factual pattern and have to decide a particular issue,
such as the voluntary appearance issue, you can look at a very narrow slice of
time or a rather broad time frame. In
the present hypothetical, you can look at the time frame of when you were on
the way from the plane to the ground, or alternatively, you can look at his
prior decision to get in the plane drunk in the first place.
There
is a rational way to decide
whether to look at the broad or narrow time frame. We’ll look at this method later.
What constitutes a “voluntary act”?
Is it intent plus bodily motion? This is plausible but wrong. We’ll see as we proceed, the criminal law
distinguishes between a voluntary act and an intentional act. We mustn’t say that a voluntary act is an
intentional act.
We want to talk about will. A voluntary act is a willed act.
When I say, “I raised my arm”, I think about it as
something that I did. When I say, “My
arm came up”, it just happened.
Oliver Wendell Holmes called a voluntary act “a
willed muscular contraction”.
This is the difference between choosing to pull a
trigger and kill someone and having a seizure and plugging the trigger without will.
Warning! Voluntary
has several different meanings. However,
for the first element of a crime, the voluntary act,
we mean “a willed muscular act”.
We think of things that the brain does as distinct from things that the mind does. This
is not really a scientifically accurate statement, but it reflects our common
sense notion of a voluntary act.
A father who was a combat veteran got drunk. His son, who was living with him, got stabbed
somehow. The father was charged with
second degree murder but was convicted of manslaughter.
Note: The jury can always
return a lesser verdict than the one the defendant is charged with. Therefore, the prosecutor will charge the defendant
with the highest level of conviction that is possible.
The defendant argues that due to what we now call
Post-Traumatic Stress Disorder, he reacted violently whenever people
unexpectedly came up behind him.
Effectively, the defendant argues that he committed this act while he
was unconscious.
We’ve given the definition of homicide, which
includes the word “act”. It does not
explicitly read “voluntary act”. The court
suggests that an “involuntary act” is a contradiction in terms. They say it’s an “event” but not an “act”. What is the court getting at here?
Why is a “willed” event an “act”? Why are they playing with the words this
way? Why are they describing what we
call an “involuntary act” as an event?
It removes agency.
When I say “I raised my arm”, I am attributing this
“act” to human agency. When I say “My arm went up”, I am basically
calling this an “event”.
Agency
is required to attach blame
to a person, rather than merely a human body.
Model Penal Code
§ 2.01 uses the word
act differently than the court does in Utter.
Until the Model Penal Code was drafted and
accepted, no state had a clear provision saying that no person is guilty of a
crime unless they commit a voluntary act. The Model Penal Code eliminates the need to
play with words.
What does the court in Utter say about the time
frame? He got himself voluntarily drunk.
Why would a defendant prefer an acquittal on the
basis of automatism to opposed to being found not guilty on the ground of
insanity? If you’re found guilty by
reason of insanity, you can be civilly committed.
There is also a burden of proof issue. It’s much easier to get off if the burden is
on the prosecutor to prove a voluntary act as opposed to the burden on the defendant
to put up the defense of insanity.
People
v. Decina
Decina hit some people in a car when he had an epileptic seizure. Was the court right to reject his argument
that he should be acquitted because he committed no voluntary act? How can he be found guilty under Model Penal
Code § 2.01? The conduct must include
a voluntary act. That doesn’t mean that all
the conduct must be voluntary.
You
would need to pick the right voluntary act.
The Model Penal Code is talking about the relevant conduct, that
is, the conduct related to the crime that’s being charged.
Back
to Decina: the conduct for which he is being
charged is the conduct of operating a motor vehicle and causing
death. So the relevant conduct for this
crime is operating the motor vehicle.
The
breadth or narrowness of the time frame will relate to the conduct that
constitutes the crime charged.
Let’s
say a student tells Dressler that she’s going to kill Professor Jones. Let’s also say that Dressler thinks that’s
great because he doesn’t like Professor Jones.
Say she commits the murder. Can
Dressler be held responsible for Professor Jones’s death?
Check
it out on TWEN. Is he guilty? If so, what are the arguments for it? If not, why not?
Next
time, we’ll talk about Beardsley and
then proceed to the next assignment.
The
questions to ask
·
Was there conduct?
·
If yes, does the conduct include a voluntary
act?
·
If no, is this one of those rare cases in which
there is a legal duty to act?
Two
forms of omission liability
1. Statutory duty
a. Tax laws: you
must file your taxes by April 15th.
b. Duties of
parents: you must clothe, food, and house your children.
c. Bad Samaritan
laws: if you walk by someone on the street who is in peril and don’t help them,
you may be convicted as a bad Samaritan.
2. Commission by
omission
a. When a statute
imposes a duty
b. When you a
have certain status relationship to another
c. When you have
assumed a contractual duty to care for another
d. When you have
voluntarily assumed the care of another and in so doing kept others from
helping
e. When you
create a risk of harm to another