Civil v. Criminal

Civil:

• compensation (typically $)
• victim/π is individual
• preponderance of evidence

Criminal:

• punishment (typically prison/fine)
• victim/π is State
• beyond a reasonable doubt

         Sources of Criminal Law

o   Statutes (most criminal law comes from this) and ordinances (statute passed by local government)

o   Constitution (only crime it defines is treason)

o   Administrative Regulations (typically statute is passed to allow administrative agency to define rules and crimes)

o   Treaties

o   International Law

Strict Construction v. Fair Import

o   Strict Construction (Rule of Lenity) – if a word is ambiguous you interpret it in the way favorable to ∆

§  Rationale is government should be clear and if they are not they give leniency; also, people should know what crimes are (society needs fair warning of what crimes are)

o   Fair Import – use common sense to interpret ambiguous words

o   Most state legislatures choose strict construction

Burden of Production

• rules that require a party to offer some evidence on an issue so that the issue become part of the case; “prima facie” showing (small amount of proof that can establish guilt)

Burden of Persuasion

• who has the burden to convince the jury

Three Burdens/Standards of Proof

§  Beyond a Reasonable Doubt – very high burden or level of proof

§  Clear and Convincing – between beyond a reasonable doubt and preponderance of evidence

§  Preponderance of Evidence – 51% (use in civil cases)

o   Government has the burden or production and persuasion of elements of crime beyond a reasonable doubt

o   There is no burden of proof as to defenses and so each jurisdiction comes up with the burden of production required

Defenses

§  Defenses - ∆ has the burden of production and then the burden of persuasion shifts to the government to disprove the defense

§  Affirmative Defense – the entire burden (both production and persuasion) is on the ∆

o   Statutes determine whether something is a defense or an affirmative defense

Appeals

o   When ∆ appeals they can review evidence or completely defer to jury’s verdict

o   Double Jeopardy Clause  - a ∆ cannot be tried again on the same charge

o   Jury Nullification – if the prosecution provides evidence beyond a reasonable doubt but jury still refuses to convict

Limits on Criminal Law

• Pinciple of Legality
• Substantive Due Process
• Constitutionality
• Rule of Lenity
• Overbreadth
• Ex-post Facto/Retroactive Statutes
• Bills of Attanider
• Notice
• Vagueness

Principle of Legality

o   laws should be made available to people and be written in a manner so they are easily comprehensible and sufficiently clear

§  Strict construction (rule of lenity) is inspired by this principle

Substantive Due Process

o   5^th and 14^th Amendments of Constitutions guarantee that the government cannot violate due process laws

§  Due Process of 5^th Amendment – government cannot violate due process

§  Due Process of 14^th Amendment – no State can violate due process

§  Deals with what criminal law forbids – government cannot pass any law that does not deal with what it is intended to (gives authority to courts to judge legislature)

Constitutionality

• neither State nor Federal legislature or court can create a criminal law that violates the United States Constitution

Rule of Lenity

• courts should resolve ambiguities in criminal statutes in favor of ∆s and against the prosecution

Overbreadth

o   laws that reach conduct that is protected by 1^st Amendment (freedom of expression)

§  i.e. – law that bans Constitutionally protected and unprotected speech

Ex-Post Facto/Retroactive Statutes

o   deals with the retroactive backwards application of laws by legislature

§  Legislature cannot pass laws and enforce/punish people for conduct done prior to legislature passing law

§  Based on principle of legality

Bills of Attainder

o   when legislature imposes criminal liability on an identifiable person or group of people (unconstitutional because there is no trial)

Notice

o   criminal law must provide notice to the public of its contents (law will not be enforced for some time and so there is time for notice to people)

Vagueness

o   deals with how law are expressed and puts duty on legislature to make laws clear and not general and ambiguous

§  Connolly Test – look at statute on its face and see if ordinary citizen would understand it

§  Harassment statutes constantly challenged on vagueness

Elements of Crimes

(General Overview)

o   If something is an element of a crime, then the government must prove that element beyond a reasonable doubt

§  This is made difficult by the 5^th Amendment – ∆ does not have to testify at trial

o   Both defense and prosecution must look at each element of the crime to see which one is weak link to attack

o   Every element in a crime is a policy decision and there for a reason

o   Generic elements – the identity of the person, the date, and the location of the crime

Actus Reus

o   Two Concepts:

§  Voluntary Act – person can control it

§  Conduct – positive action or an omission (if you had a legal duty to do something but fail to do it)

o   Duty must be imposed by law, not by moral code

o   In U.S., none of us has a duty to come to the aid of another even if you could have easily done so

§  Exception is with child/infant, where you have a duty to care for them

o   Possession – of a weapon, drug, contraband, etc.

§  Requires not just control, but knowing that you have it and having time to dispense with it

o   Status Crimes – cannot be convicted or punished for a status (i.e. being addicted to drugs)

§  8^th Amendment bars cruel and unusual punishment for a status

Attendant Circumstances

A particular circumstance that is part of the crime (i.e. "at night" in common law burglary)

o   Just about every crime has a circumstance with it

o   The more attendant circumstances in a criminal statute, the fewer people are likely to violate it

Harm

o   Sometimes there are gradations to harm (i.e. assault v. aggravated assault)

o   The greater the harm, typically the greater the punishment

o   Statutes will define injury and jury will determine which degree of injury that victim sustained

o   Some crimes punish risk of harm (i.e. reckless endangerment)

Causation

o   Links the actus reus to the harm

o   Persons action causes the harm

Concurrent Causation

o   more than one cause is present

§  Sometimes do not know which cause produced harm, and so both will be considered to have caused harm

Intervening Cause

o   ∆ does something but later there is another cause (i.e. someone is shot, but later doctor does something by mistake and kills victim)

§  Dependent – even though it was doctor who made a mistake, you put the victim in hospital and so are still responsible

§  Independent – if you shot victim but someone else comes to hospital and cuts off head of victim, then you are not responsible

"But for" and "Proximate" Causation

·         “But for” causation – there is a physical link between what ∆ does and π’s harm

·         “Proximate”/legal causation – a way of figuring out who should and should not be punished (is it just to hold the ∆ responsible for the outcome given the circumstances?)

o   Most jurisdictions will hold that if the harm was reasonably foreseeable than there is proximate cause

§  In most jurisdictions, causation is established only if both kinds of causation are proven

Mens Rea

(General Overview)

§  Government must prove beyond a reasonable doubt

§  Just about every statute will tell you what the mental element will be

§  When there is no mens rea, then strict liability will apply

§  General Criminal Intent – when the statute has no mens rea, it means that you intend to do the act that is prohibited

·         No modern criminal code uses this

§  Specific Intent – include specific mens rea in the definition of the crime

Mens Rea

(Model Penal Code)

• Four mens rea:
• Purposefully/Intentionally
• Knowingly
• Recklessly
• Criminal Negligence
• 
  
• MPC applies the mens rea to each material element in the crime

Purposefully/Intentionally

(subjective) (most severe) – you did what you did because you wanted that result to happen

Knowingly

§  (subjective) – you are aware that is practically certain to occur (were aware of circumstances)

·         A knowing killing is rare, typically they are intentional or careless

·         Under knowingly in a criminal statute, the more elements that have to be proved, the better opportunity the accused has of getting acquitted

Recklessly

(subjective and objective) – requires an awareness (subjective) of a risk and the risk (objective) was a gross deviation from the standard of care of a reasonable person

Criminal Negligence

(objective) (least severe) – someone who takes a risk that is a gross deviation from the standard of care of a reasonable person, but is not aware of the risk but should have known

Downward Inclusiveness

if the government establishes you acted knowingly, then it automatically proves all other less severe mens rea below it and works in that hierarchy

Transferred Intent

when you are trying to kill someone and unintentionally kill another person, the law will transfer intent to the other victim

Ostrich: Deliberate Ignorance

§  deals with person who remains ignorant on purpose

·         To get around this the court will give jury “Jewell Instructions” – allows jury to find that person is aware of something if they had good reason to suspect it but intentionally remained ignorant

·         Typically there are facts that there was a high probability of something happening/being there + conscious ignorance or purposely not looking into matter

• Criticism of this is it redefines knowledge (can be convicted for not knowing)

Strict Liability

o   When no mental state is required to be convicted of a crime

o   Every U.S. jurisdiction has them and are ordinarily not serious in the U.S.

o   Designed to make you more careful and punish act, not goodness/badness of crime

o   Can still have strict liability crimes under MPC, if legislature mandates it

Interrelationship of Elements

o   Elements: actus reus, circumstance, harm, causation, means rea

o   Actus rea must cause harm (causation is link between the two elements)

o   The harm that occurs must be embraced by the appropriate mental element in the statute

o   When a criminal statute includes both circumstance and result elements, the two must ordinarily exist at the same time

• Mens rea and actus reus do not need to happen simultaneously