Criminal Law

Spring 2008

Rationales for Punishing

• Deterrence

• Retribution• Expressive/educative• Incapacitation• Rehabilitation• Vengeance

The Elements of a Criminal Offense

Actus reus -- the “Act” Requirement

State v. Martin

Ala. Code 1940, Title 14, Section 120

Any person who, while intoxicated or drunk, appears in any public place where one or more persons are present,…and manifests a drunken condition by boisterous or indecent conduct, or loud and profane discourse, shall, on conviction, be fined….

Model Penal Code

Section 1.13 General Definitions

…

(2) “act” or “action” means a bodily movement whether voluntary or involuntary;

(3) “voluntary” has the meaning specified in Section 2.01….

Model Penal Code

Section 2.01 Requirement of a Voluntary Act

(1) A person is not guilty of an offense unless his liability is based on conduct which includes a voluntary act….

(2) The following are not voluntary acts…:(a) a reflex or convulsion;(b) a bodily movement during unconsciousness or sleep;(c) conduct during hypnosis…;(d) A bodily movement that is not otherwise a product of the

effort or determination of the actor, either conscious or habitual.

People v. Newton

Calif. Penal Code section 26

All persons are capable of committing crimes except those belonging to the following classes:…

(5)—Persons who committed the act charged without being conscious thereof….

People v. Decina

Md. Penal Law section 1053-a

A person who operates or drives any vehicle of any kind in a reckless or culpably negligent manner, whereby a human being is killed is guilty of criminal negligence in the operation of a vehicle resulting in death.

Model Penal Code

Section 1.13 General Definitions

…

(2) “act” or “action” means a bodily movement whether voluntary or involuntary;

(3) “voluntary” has the meaning specified in Section 2.01….

…

(5) “conduct” means an action…or, where relevant, a series of acts….

Model Penal Code

Section 1.13 General Definitions

…

(2) “act” or “action” means a bodily movement whether voluntary or involuntary;

(3) “voluntary” has the meaning specified in Section 2.01….

(4) “omission” means a failure to act;

(5) “conduct” means an action or omission…or, where relevant, a series of acts and omissions.

Model Penal Code

Section 2.01 Requirement of a Voluntary Act; Omission as Basis of Liability

(1) A person is not guilty of an offense unless his liability is based on conduct which includes a voluntary act or the omission to perform an act of which he is physically capable….

…

Jones v. United States

(1) Statute

(2) Status relationship

(a) parent to child

(b) husband to wife

(c) master to apprentice

(d) ship’s master and crew to passengers

(e) innkeeper to inebriated customer

(3) Contract

(4) Assumption of care and seclusion preventing care by others

Model Penal Code

Section 2.01 Requirement of a Voluntary Act; Omission as Basis of Liability

…

(3) Liability for the commission of an offense may not be based on an omission accompanied by action unless:

(a) the omission is expressly made sufficient by the law defining the offense; or

(b) a duty to perform the omitted act is otherwise imposed by law.

The Elements of a Criminal Offense

Actus reus -- the “Act” Requirement

Mens rea – the “Culpability” Requirement

Actvs non facit revm, nisi mens sit rea

Regina v. Cunningham

Offenses Against the Person Act, sec. 23

Whosoever shall unlawfully and maliciously administer to or cause to be administered to or taken by any other person any poison or other destructive or noxious thing, so as thereby to endanger the life of such person, or so as thereby to inflict upon such person grievous bodily harm,

shall be guilty of felony.

Model Penal Code

Section 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…with respect to each material element of the offense.

…

Section 2.05 When Culpability Requirements Are Inapplicable

…insofar as a legislative purpose to impose absolute liability…with respect to any material element plainly appears.

Culpability terms

Common LawwilfullyintentionallymaliciouslycorruptlywantonlyrecklesslynegligentlyscienterKnowingly…

Model Penal Codepurposelyknowinglyrecklesslynegligently

Model Penal Code

Section 1.13. General Definitions

…

(9) “element of an offense” means (i) such conduct or (ii) such attendant circumstances or (iii) such a result of conduct as [must be established to secure a conviction]

(10) “material element of an offense” means an element that does not relate exclusively to…matter…unconnected with…the harm or evil…sought to be prevented by the law defining the offense….[e.g., jurisdiction, venue, statute of limitations]

Model Penal Code

Section 1.13. General Definitions

…

(12) “intentionally” or “with intent” means purposely…

(16) …“reasonable belief” designates a belief which the actor is not reckless or negligent in holding.

Section 2.02….…

(8) Requirement of Wilfulness Satisfied by Acting Knowingly

Regina v. Prince

24 & 25 Vict., c. 100, §55

Whosoever shall unlawfully take or cause to be taken any unmarried girl, being under the age of sixteen years, out of the possession and against the will of her father or mother, or of any person having the lawful care or charge of her, shall be guilty of a misdemeanor.

Model Penal Code

Section 2.04 Ignorance or Mistake

(1) Ignorance or mistake as to a matter of fact or law is a defense if:

(a) The ignorance or mistake negatives the purpose, knowledge, belief, recklessness or negligence required to establish a material element of the offense….

Culpability and Mistake or Ignorance

Purpose to cause p is negated by hope or belief that not-p

Knowledge that p is negated by the fact that not-p or the belief that not-p, whether that belief is reasonable or not

Recklessness as to a risk is negated by unawareness of the risk, whether or not a reasonable person would be aware

Negligence is negated by reasonableness

Model Penal Code

Section 2.02 General Requirements of Culpability

…

(3) Culpability Required Unless Otherwise Provided. When culpability sufficient to establish a material element of an offense is not prescribed by law, such element is established if a person acts purposely, knowingly or recklessly with respect thereto.

People v. Olsen

Cal. Pen. Code §228 subd. (a)Any person who shall willfully and lewdly commit any lewd or lascivious act…upon or with the body, or any part or member thereof, of a child under the age of 14 years, with the intent of arousing, appealing to, or gratifying the lust or passions or sexual desires of such person or of such child, shall be guilty of a felony and shall be imprisoned in the state prison for a term of three, six, or eight years…

Cal. Pen Code §1203.066 subd. (a)(3)[those convicted §228 subd. (a) who] honestly and reasonably believed the victim was 14 years old or older [are eligible for probation]…

Model Penal Code

Section 2.02 General Requirements of Culpability

…

(4) Prescribed Culpability Requirement Applies to All Material Elements. When the law defining an offense prescribes the kind of culpability that is sufficient for [its] commission … without distinguishing among the material elements thereof, such provision shall apply to all the material elements…, unless a contrary purpose plainly appears.

B (a minor) v. Director of Public Prosecutions

Indecency with Children Act §1(1)

Any person who commits an act of gross indecency with or towards a child under the age of fourteen, or who incites a child under that age to such an act with him or another, shall be liable on conviction on indictment to imprisonment for a term not exceeding ten years.

Commonwealth v. Sherry

“Unless you find beyond a reasonable doubt that the accused had actual knowledge of [the victim’s] lack of consent, then you must find them not guilty.”

--requested charge

“We are aware of no American court of last resort that recognizes mistake of fact, without consideration of its reasonableness[,] as a defense.”

--opinion of the Court

Regina v. Morgan

“Once one has accepted…that the prohibited act in rape is non-consensual sexual intercourse, and that the guilty state of mind is an intention to commit it…as a matter of inexorable logic…[e]ither the prosecution proves that the accused had the requisite intent, or it does not….Since honest belief clearly negatives intent, the reasonableness or otherwise of that belief can only be evidence for or against the view that the belief and therefore the intent was actually held.…Any other view can only have the effect of saying that a man intends something which he does not….”

--opinion of the House of Lords

State v. Kelly

“One who takes property in good faith…, honestly believing he…has the right to take it, is not guilty of larceny, even though he is mistaken…[for] he lacks the intent to steal required for larceny, even though his mistaken but honest belief was unreasonable….”

--opinion of the Court

18 Pa.C.S.A. §304

Ignorance or mistake as to a matter of fact, for which there is reasonable explanation or excuse, is a defense if…[it] negatives the intent, knowledge, belief, recklessness, or negligence required to establish a material element of the offense….

[19,21, 22]

Rape: Culpability as to Nonconsent

R. v. Morgan (UK): --knowledgeHess v. State (Alaska): --recklessnessCommonwealth v. Fischer (Pa.): --negligenceCommonwealth v. Lopez (Mass.): --none

U.S. Code §641

Whoever embezzles, steals, purloins, or knowingly converts to his use or the use of another, or without authority, sells, conveys or disposes of any record, voucher, money, or thing of value to the United States…shall be fined not more than $10,000 or imprisoned not more than ten years, or both; but if the value of such property does not exceed the sum of $100, he shall be fined not more than $1,000 or imprisoned for not more than one year, or both.

[25]

Morissette v. U.S.

If culpability language is absent…

Public Welfare OffensesLater recognizedRisk-creationSmall penaltyNo stigma

Culpability assumed

Infamous CrimesEarly recognizedDirect injuryHigh penaltyStigma

Culpability not assumed

Model Penal Code

Section 2.05 When Culpability Requirements Are Inapplicable…(1) The requirements of culpability prescribed by Sections 2.01 and 2.02 do

not apply to:(a) offenses which constitute violations…or(b) offenses defined by statutes other than the Code, insofar as a legislative purpose to impose absolute liability…plainly appears.

Section 1.04 Classes of Crimes; Violations(1) An offense…for which a sentence of [death or] imprisonment is

authorized, constitutes a crime. Crimes are classified as felonies, misdemeanors or petty misdemeanors.…

(5) An offense…constitutes a violation if it is so designated…or if no other sentence than a fine, or a fine and forfeiture or other civil penalty is authorized…

Model Penal Code

Offenses

CrimesViolations

(no jail time)

Felonies (>1 year)Petty misdemeanors

(<1year)Misdemeanors

(≤1 year)

U.S. Code §5861(d)

It shall be unlawful for any person…to receive or possess a firearm which is not registered to him in the National Firearms Registration and Transfer Record.

…[Possession of an unregistered firearm is punishable by up not more than ten years imprisonment. A “firearm” is any weapon capable of automatically firing more than one shot with a single trigger-pull.]

Model Penal Code