Law School Crim Law Outline

Essential Supplements for Success in Crim Law:

1L Law School Criminal Law outline based on the following books:

Reading for Monday, August 24, 2009

Dressler Chapter 1-3


Chapter 1: Criminal Law, an Overview

Nature of Criminal Law

It’s the study of crimes and moral principles of criminal responsibility.

Crimes: Comparison to Civil Wrongs

Criminal law involves public law – crime is more than a private injury

Causes social harm – injury suffered involves a breach and violation of the public rights and duties, due to the whole community, considered as a community, in its social aggregate capacity. –

thus prosecuted representing the community at large

the societal condemnation and stigma that accompanies the conviction is what distinguishes criminal law from civil counterpart.

The resulting conviction is an expression of the community’s moral outrage

Definition: “An act or omission and its accompanying state of mind which, if duly shown to have taken place, will incur a formal and solemn pronouncement of the moral condemnation of the community.

Crimes: Classification of Crimes

2 gen. categories: felonies & misdemeanors (according to Eng. Comm. Law)

Lines are drawn much differently now than before.

Misdemeanor: an offense for which the max. punishment is a monetary fine, incarceration in a local jail, or both.

Felony: an offense punishable by death or imprisonment in a state prison

Violations and infraction are offenses that encompass misconduct so minor that incarceration is prohibited.

Principles of Criminal Responsibility

Moral judgment: punishment may not be justly imposed where the person is not blameworthy.

The principle identifies the point at which it is believed fair to go from the factual premise.

Proving Guilt at the Trial

Right to trial by jury: In General

6th Amendment: speedy and public trial by an impartial jury. Both state and federal for all criminal trials nd proceedings – prevents oppression by gov’t

NO offense is petty for right to trial by jury if imprisonment is for 6 mths+

Or if statutory penalties are so severe (incl fines) are so severe that they clearly reflect a legislative determination that the offense in ? is serious

Right to trial by Jury: Scope of Right

In fed court jury must reach a unanimous verdict to convict or aquit (12 ppl)

State laws permit nn-unanimous verdicts as long as “substantial majority”

A defendant has right for a jury selected from a pool of people that represent a fair cross-section of the community. – large groups (women) are excluded

Burden of Proof

Prosecutor under the Due Process clause must persuade the fact finder “beyond a reasonable doubt of every fact necessary to constitute the crime

Jury Nullification: The issue

Jurors have the raw power to acquit an individual even if prosecutor proved beyond a reasonable doubt of his guilt. Don’t need to give a reason-DJ applies

Common exception to gen. verdict is not guilty by reason of insanity

Jury Nullification: The Debate

Advocates claim it is the conscience of the community

That defendant should be subjected to the condemnation

Critics: Jury takes an oath nd this concept makes them go against their oath (Judge’s instruction of the law) Jury doesn’t make law in any case

Jury Nullification: The Law

Judge can instruct jury that they MUST find a guilty or non-guilty verdict

Power to nullify exists but no concomitant right to nullify.

Can basically demand, reject, or dismiss this apparent power to nullify

Jury Nullification: Race-Based Nullification

Whether you go to jail or get set free should no depend on the color of your skin. But sometimes African-Americans are charged with non-petty crimes for big sentences.


Chapter 2: Principles of Criminal Punishment

Punishment and Criminal Law Theory

Criminal justice system inflicts pain on those convicted of criminal conduct by taking their life, liberty, or property – requires justification

Legislatures ascertain what conduct is wrongful and who can be held accountable

Punishment Defined: In General

Constitution covers that one cant be punished twice or retroactively – no cruel/unusual

Punishment Defined: Constitutional Law Analysis

Punishment and civil remedies have very small differences and thin lines

Confinement for one is to provide the safeguard of future attacks – is it cruel and unusual to confine for life on a speculation of future attacks? Only if it is punishment not remedy (criminal)

Theories of Punishment

Utilitarianism : Basic Principles and Forms (a form of Consequentialism)

Justification of practices depends on only to its consequences – forward looking

Purpose to all laws is to maximize net happiness of society

Punishment is justifiable only if expected to reduce crime that could occur in the future

If pain outweighs potential pleasure deterrence from the crime achieved

Stress general deterrence – “D” punished to convince community to avoid the conduct

Specific Deterrence is to deter future misconduct by “D” himself

Rehabilitation – to reform the wrongdoer rather than punishment

Retributivism: Basic Principles and Forms

Punishment is justified when it is deserved – or when wrongdoer freely chooses to violate society’s rule

2 main differences from utilitarianism – 1. R is looking backward 2. R says pl have free will

Differences among R as to how they defend their “Just Deserts” philosophy

1. Assaultive R: Morally right to hate criminals and for society to hate him back

2. Protective R: Punishment is a means of securing a moral balance in the society

Wrongdoer has the right to be punishment to be a moral agent of the society

Retributivism: Denunciation (Expressive Theory) a hybrid of both R and U

Punishment is justified A means of expressing society’s condemnation, and the relative seriousness, of a crime.

Educative. It affects future conduct, thus parallel to U fundamentals and forms in this sense

Moral Condemnation – serves to stigmatize the offender for his offense

The Debate btwn the Competing Theories

Criticism of Utilitariasm: Deterrence and Rehabilitation

R says U’s detterence theory justifies usuing persons solely as a means to an end. For U a punished person is an instrument for the improvement of society.

U says the right each person has is to have law used for betterment of the society

R also says U can justify the punishment of a person known to be innocent of wrongdoing

R states a innocent person should never deserve punishment because he has no debt to repay the society, thus it is wrong.

Critics of Rehab idea doubt criminals can be reformed – point to studies that show failure

Proponents says it will work if society is prepared to commit the necessary resources to the process and it may result in long term cost savings

R also states that rehab removes from punishment the concept of Desert

U says rehab saves the concept of redemption evident in Judeo-Christian thought

Criticism of Retributivism

U says intentional infliction of pain thru punishment is senseless and cruel if it does no good

U – our goal is to reduce overall human suffering not increase it. U – R glorifies anger/hatred

U- R is irrational because founded on emotions rather than reason

Mixed Theories of Punishment

The criminal Law in the US has developed with characteristics from both R and U.

Concept of hybrid and limiting retributivism – punishment should be no more than proportional – ok to permit less punishment as deserved.


Noncapital felony offense – a term of years in state prisons, monetary fine, or a combo

Judge can also sentense a defendant and suspend it by placing person on probation

A states sentencing should be consistent with the principles of punishment.

Model Penal Code is the perfect example – to prevent the commission of crimes and to promote the correction and rehab of offenders,

The provisions of the code made by the American Law Institute are consistent with rahab goals dominant in legal thoughts in 1960.

One common system: offenders sentence is determined at the time of sentencing – correction officers lack the power to reduce punishment


Chapter 3 – Sources of the Criminal Law

Origins of the Criminal Law

Common Law

Criminal law is primarily English in its heritage and judicial in its origin

Eglish crim law was common law in nature – judge made law

Criminal Statutes

Effort to enhance legislative authority was based on a belief that crimes should be defined by an institution more representative of those being governed that the judiciary

To try to codify thee criminal law in order to produce a legislated body of reordered, reformed, and reconceived law in accordance with respective principles.

Now the legislature is the pre-eminent lawmaking body in the realm of criminal law.

Modern Role of the Common Law

Common law of crimes remain important to lawyers

Reception Statutes

Most states, often by statutes have abolished common law crimes

Some states recognize common law offenses – they have enacted reception statutes – every act and omission which is an offense at common law and for which no punishment is prescribed by state penal code may be prosecuted and punished in common law

Statutory Interpretation

Interpretation requires understanding of common – thus laywers need to be familiar

Model Penal Code

Although not the law, in whole, in any jurisdiction – it is a MODEL penal code and it heavily influences adoption of revised penal codes in 34 states.


Reading for Wednesday, August 26, 2009

Dressler Chapter 4-6


Chapter 4 – Constitutional Limits on the Criminal Law

Written Notes


Chapter 5 – Legality


Principle of Legality


Not all conduct immoral and harmful is criminal and punishable

Nullum crimen sine lege, nulla poena sine lege – No crime without law, no punishment without law. – No retroactive lawmaking

Three interrelated corollaries to the legality principle

Statutes should be understandable to the reasonable law-abiding persons

Statutes should be crafted to not delegate basic policy matters to policemen, judges, and juries for resolution on an ad hoc and subjective basis

Judicial interpretation of ambiguous statutes should be biased in favor of the accused (the lenity doctrine)


Advocates: 1. Designed to serve fundamental justice by preventing arbitrary/vindictive use of the laws. 2. Enhances individual autonomy. 3. Give fair warning of their effect and permit individuals to rely on their meaning until explicitly changed.

Constitutional Law – Legality principle has constitutional foundation

Bill of Attainder and Ex Post Facto Clauses

Limits on the sovereign’s ability to use its law making power to modify bargains it has made with its subjects

Article 1, Sections 9/10 prohibit fed. And state leg. From enacting these types of laws. Bill of attainder – guilty without trial or conviction. Ex Post Facto – retroactive laws.

Due Process Clause

Courts may broaden definitions so long as its not unexpected/inadequate – except: cannot create an offense by enlarging a statute, by inserting or deleting words or by giving terms used false or unusual meanings

Statutory Clarity – first principle of Legality Principle

Vague is unacceptable – courts look at purpose of statute to avoid vagueness

A statute is not valid simply because it requires conformity to an imprecise normative standard such as the requirement that a person not act negligently.

Avoiding Undue Discretion In Law Enforcement

Kolender v Lawson – statute or ordinance must establish minimal guidelines to govern law enforcement

Due process clause forbids enforcement that vests complete discretion in the hands of the police to determine whether the suspect has satisfied its req’s

See other cases dealing with this law and its interpretation.

Strict Construction of Statutes (Rule of Lenity)

When there is no room for judicial construction, the courts must give the statute its plain and definite meaning

Court must ascertain the intent of the legislature that enacted the law – it can seek assistance by all appropriate means and indica

If statute is still unclear – the statute should be interpreted strictly against the government – serves as a tie breaker – only if truly a tie

Model Penal Code doesn’t recognize the lenity principle – must be according to their fair import (statutes) – further the general purpose of the code.

Chapter 6 – Proportionality


Proportionality in the Criminal Law: Overview

A person is not justified in using force against another unless its proportional or reasonable in relation to the harm threatened or the interest to be furthered

To assure that an offender receives punishment appropriate to the crime committed.

Eight amendment prohibits grossly disproportionate punishment

Utilitarianism and Proportionality

General Principles

Punishment shld be neither too little or too much but proportional

5 rules: 1. Punishment shd not be less to outweigh the potential profit to the criminal of committing offense. 2. The greater the mischief of the offense, greater the expense. 3. Grade offenses in a manner that will induce a person to choose always the least mischievous of 2 offenses. 4. Punishment shd also be set in manner to induce the criminal to do no more than nec. for purpose. 5. Punishment shld not be more than what is nec. To bring it into conformity

Application of the Principles

General Deterrence

by predicting the overall mischief that is likely yo result from commission of the offense in the future by this and other offenders

degree to which the conduct in question can be deterred

Specific Deterrence

Punishment is proportional to the extent but only to the extent that t is necessary to prevent the individual offender from committing future criminal acts – a more dangerous offender maybe punished more severely than a ordinary offender who commits same crime

Rehabilitation – Hardly a form of proportional punishment

Retributivism and Proportionality

Offender owes a debt to society punishment is repayment.

Take in to consideration harm caused and and the degree of oral desert

Lex talionis – Reject this idea. (i.e rape a person as punishment who raped)

Application of the Principles

A crime has 2 parts- external (harm) and internal (moral blameworthiness)

Must be punished with each of those in mind and to repay each component

Devising a proportional Retributive System

One way to scale deserts in a sentencing system is to proportion punishment between offenses, rather than to offenses (Rate crimes and assign punishment to each).

Comparing the 2 Theories of Proportionality

Utilitarian retribution is linked to predictions of the future harm

Retributivists seek to proportion harm to crime already committed

In other words U’s want to help society and R’s want repayment

Constitutional Requirement of Proportionality

8th amendment prohibits cruel and unusual – a fundamental right states must protect

requires that punishment be graduated and proportional 2 offenses

Death Penalty

Difficult to distinguish when this is appropriate punishment. Esp. when no life was taken

Coker v Georgia (1977)– Rapen and killed. Freed 8 mths later and again twice raped another. Escaped from 3 life terms and raped another. Georgia sentenced him to the death Penalty – U’s would say yes, very dangerous

Though, SC said death is grossly disproportional punishment for rape of adult woman – 1. Looked at public sentiment for DP for rape cases. (see pg 57)

Kennedy v Louisiana – (2008) stepfather horrifically raped 8 yr old daughter and SC said any rape case where death is not involved, nor (if it happened) intended, Death penalty is unconstitutional.

Terms of Imprisonment – unclear

Rummel v. Estelle (1980)

Repeat offender (final crime – obtaining a check for $120.75 by false pretenses) – SC upheld his life conviction

1. Might be petty – but state had ability to draw line – repeat offenders

2. First time rapists weren’t subject to life – ct said its speculative

3. Texas statute most severe – ct said he’s up for parole in 12 years

Although states are prohibited from inflicting grossly disproportional punishment, the SC will almost always defer to state leg. Judgement

Solem v Helm (1983)

Helms 7th conviction of passing a no account check for $100

Court although reviewing courts shd grant substantial deference t leg. In setting punishments for crime, no penalty is per se constitutional

Distinguished from Rummel – no chance of parole

Harmelin v Michigan (1991) – convicted of having 672 grams of cocaine

First offense, life imprisonment, no parole

Only for 1st degree murder and anything to do with 650+ grams of narcotics – Scalia said 8th amendment didn’t guarantee against disproportionate sentences

Ewing v California (2003)

Stole 3 golf clubs, each worth $399 – previously convicted of robbery and 3 counts of burglary. – charged with 3 strikes recidivist test

Court found no 8th amendment violation – “8th amendment contains a narrow proportionality orinciple in no-capital cases – 3 strikes gives warning and if not fixed – must be removed from soc. public safety


Reading for Monday, August 31, 2009

Dressler Chapter 7 & 8, Problem Set 1 (Leary v US, etc.)


Chapter 7 – Burdens of Proof

Putting the Issues in Procedural Context

Prosecutor (representing state) introduce evidence – jury can only consider those legal issues about which sufficient factual evidence as presented

Burden of production – (sometimes called burden of going fwd with evidence

Nature of the Burden

P must file a document with court indicating crime it believes (D) did

D sometimes needs to present to P defenses it claims to have

Who has the Burden

P has burden of production regarding each element of the crime charged – and almost always D has burden of proving any affirmative defenses-self-def

How great is the Burden

P must produce enough evidence that a rational trier of fact may determine fairly that the elements of crime have been proved beyond reasonable doubt

Aff. Defenses – jurisdictions differ in amount of evidence required

Effect of Failing to Meet the Burden

Trial judge determine if burdens of production have been met

IF P failed, then D is entitled to directed verdict of acquittal.

IF D fails then jury instructed to not take it in to consideration

Burden of Persuasion

Nature of the Burden

Jury decides whose factual claims are more persuasive

Who has the Burden

The Presumption of Innocence: Winship Doctrine

5th and 14th amendment provide a person may not be deprived of life liberty or property without due process of law

In re Winship (1970) prosecutor must persuade factfinder beyond reasonable doubt of every fact necessary to constitute crime

Mulaney v Wilbur (1975)

Facts: W charged with murder – W intentionally killed but may have done so in the heat of passion on sudden provocation

Jury instruction: Homicide – manslaughter and murder – 2 common elements and P must prove beyond reasonable doubt

Further that W needed to persuade by preponderance of evidence that killing was in heat of passion – SC disagreed

Presence or heat of passion is single most important factor” and thus for P to prove. – “ Due process requires the P to not only prove D guilty of criminal homicide but also to persuade the jury regarding the facts relating to D’s degree of criminal culpability.

Interpretation: once D satisfies burden of production for aff defense – burden on P to disprove the defense.

Patterson v New York (1977)

Signaled that it may have erred in Mullaney

NY statute a little different – elements were not as broad as Maine’s. And homicide statute explicitly claimed that extreme emotional disturbance is an aff defense to be proved by D for lesser verdict

Absense of extreme emotional disturbance isn’t element of murder here and they didn’t intend for Mullaney to have such far reaching effect. As a non element NY could require D to prove

Post-Patterson Case Law

McMillan v Pennsylvania – P has burden except in certain limited circumstances D may have burden of persuasion for facts no formally Identified as elements of the offense charged – how to determine which facts relates to the elements of an offense or defense

Martin v Ohio (1987)

Aggravated murder and D claimed it was self-defense. D had burden

P said that the idea disproved an element of premeditation

SC – “jurisdiction may allocate to a D the burden of persuasion for aff defense as long as jury may also consider the evidence relating to the d as a basis for negating an element of a crime” confusing

Montana v Egelhoff (1996) – See Pg 75

How great is the Burden

Must reach a state of near certitude of …guilt (Jackson v Virginia 1979

Jurisdiction differ in their allocation of the burden of persuasion regarding affirmative defenses.

If burden lacks in either P or D – it can be acquitted pre-end of trial or by jury

Model Penal Code

P has burden in regards to each element of the offense. P is not needed to disprove an affirmative defense unless there is evidence supporting it.


Chapter 8 – Presumptions

Nature of a Presumption

Upon proof of Fact A, factfinder must (or may) presume Fact B.

Usually – not always presumed fact in crime cases – element of crime charged

Mandatory v Permissive presumption. Must v May

Presumptions make it easier for the party with the burden of proof to persuade factfinder regarding issue in question

Mandatory Presumptions

Rebuttable Presumptions

Requires a finding o the presumption upon proof of the basic fact, unless rebutted by opposing party – shift burden to D upon proof of basic fact

In Sandstrom v Montana (1979) court said its unconstitutional (pg 80)

Irrebuttable Presumption

Requires jury to find the presumed fact upon proof of the basic fact, even if opposing party introduces rebutting evidence – hard to find in criminal law

Permissive Presumptions (Inferences)

Factfinder may, but need not, find the existence of the presumed fact upon proof of the basic fact – not a true presumption but more like an inference

Supposed to a logical bridge between one fact believed to be true another fact – truth of which is at issue – do not formally affect the P’s const obligations to prove every element of an offense – not unconst per se (Ulster County v Allen, 1979)

SC held that as applied to the facts of this case, be inference of constructive possession by the 4 D’s was rational – more likely than not that youth girl was not solely responsible for their presence in her purse (Ulster County)

Model Penal Code

Does not recognize mandatory presumptions but permits permissive

Assuming permissive presumption is not irrational, the code requires judge to instruct jury that the element at issue must still be proved by the prosecutor beyond reasonable doubt but law permits presumed fact.


Reading for Wednesday. September 2, 2009

Dressler Chap 9 (85-105) Problem Set 2


Chapter 9 (85-105) – Actus Reus

Actus Reus: General Principles


One of the 2 components of crimes. “The physical or external portion of the crime; mens rea – “mental or internal feature.”

Usually includes three components of crime: 1. Voluntary act 2. That causes 4. Social harm.

Punishing Thoughts: Why Not?

Reach of crim. Law limited by principle – no one can be punishable for his thoughts

Actus reus (requirement of conduct resulting in harm) helps the above principle

This actus reus requirement is premised on the retributive belief – wrong to punish inaction.

Voluntary Act: Gen. principles

A person is not guilty of a crime unless her conduct includes a voluntary act (some excep.)

The Act

An act is simply a bodily movement, a muscular contraction. (Phys. Not necc. Visible)

1. There can be bodily movement but really no act

2. Act doesn’t apply to the results of a person’s bodily movement (Pressing detonator)

3. Many scholars – to be an act the muscular contraction must itself be voluntarily performd


used in discussing criminal law defenses to concluded that def. poss./lacked free will

Narrow meaning: movement of the body which follows our volition. “Willed”

Voluntary – involves the use of human mind, and involuntary – use of brain w/o mind.


Acts under hypnosis or as the result of hypnotic suggestion are voluntary.

Multiple Personality Disorder

May be insane but still implicates the voluntary act requirement.

Courts reject a dual person defense

Burden of Proof

Courts frequently describe involuntariness as a defense

Under the due process (P) is req’d to prove beyond a reasonable doubt every element of an offense but not constit. req’d to carry burden of persuasion regarding affirmative defenses.

The Issue of Time-Framing

(P) does not need to show the the (D)’s every act or even last act was voluntary

the decision to frame the actor’s conduct broadly or narrowly is based on a courts desired outcome. (if only subconsciously)

Fully stated rule of Criminal Responsibility: “A person is not guilty unless conduct (voluntary act), accompanied by culpable state of mind is the actual and proximate cause of social harm

People v Decina (1956) an epileptic killed 4 kids when he had a seizure and car crashed. Courts said he knew he was highly susceptible and failed to take proper precautions.

The answer of culpability in cases such as this depends on time-framing.

Voluntary Act: Supposed (But not real) Exceptions to the Requirement

Poorly Drafted Statutes

Vermont statute – requiring unmarried couple FOUND in the bed together.

Status Offenses

CA statute prohibited – to be addicted to use of narcotics. Req. proof of status not conduct

Crimes of Possession

Do not require one to act, but passively possess the prohibited object

Courts usually require proof that the (D) knowingly procured the property

Voluntary Act: Constitutional Law

Two cases when the Supreme Court considered the question of whether voluntary conduct is a constitutional prerequisite to criminal punishment

Robinson v. California (1962)

Punishable from 90 days – 1 year for one to be addicted to the use of narcotics – just present addiction required for conviction – SC: violates 8th and 14th amendments

That statute made the illness of a drug addiction a criminal offense – shld not be punishable

Legislature may use criminal sanctions against use, manufacture, sale, purchase, possession

It is indecent to punish them simple because they are sick

Powell v. Texas (1968)

Statute prohibited getting drunk or being found in a state of intoxication in any public place

(D) argues that the punishment violated the underlying principles from Robinson

Court distinguished Robinson on the ground that Powell was convicted not being a chronic alcoholic buy for being in public while drunk on a particular occasion.

Court unwilling to intrude that far into state penal systems w/ broad definition of Robinson

Current Law: Powell in Light of Robinson

Powell did not overrule Robinson – these 2 cases stand for the proposition that state may not punish a person for her thoughts alone, or mere propensity to commit crime

Dissent: puninshing addict4 using drugs convicts for addiction under a different name

Voluntary Act: Model Penal Code

Provides that no person may be convicted of a crime in the absence of conduct that includes a voluntary act or the omission to perform an act of which he is physically capable.

Allocates to the (P) to persuade factfinder of the existence of a voluntary act.

Act: “bodily movement whether voluntary or involuntary (reflexes, convulsions, unconsciousness, sleep, hypnosis may not be punishable)

Possession an act if he knowingly obtained object or knew of possession and didn’t terminate

Exception to the Rule:

Section 2.05 (1) – requirements set out in 2.01 don’t apply to offenses that constitute violation unless court determines that application of 2.01 is consistent w/ effective enforcement of law defining the offense.

Omissions: General Principles

People v Beardsley (1907) – married man failed to come to aid of woman w/ whom he had an affair when she took a lethal dose of poison in presence and died. Not liable for omission

Subject to limited exceptions, a person has no criminal law duty to act to prevent harm to another, even if the person imperiled may lose her life in the absence of assistance

Criticisms/Defenses of General Rule (102-105)


Reading for Wednesday. September 9, 2009

Dressler Chap 9 (105-116) Problem Set 3

Omissions: Exceptions to the No-Liability Rule

Common Law Duty to Act: Commission by Omission

Duty to act assuming that she was physically capable of performing the act

person w/ lgl duty who negligently fails to give care may be guilty of manslaughter if person dies as a result of the omission

When there is a Duty to Act

Status relationships

Standing in a special stutus relationship to person in peril – dependency of 1 party 2 another; parent/child, married couple, master/servant

Contractual Obligation

Implied or express contract – agreement to house feed, and provide medical care to an infirm stranger; care of mentally ill parent; babysitter; doctor, etc.

Omissions following an act

A person who wrongfully harms another or another’s property, or who wrongfully places another or property on jeopardy of harm has a legal duty to aid

Accidental commencing of a fire – duty to extinguish of prevent damage

Voluntary assistance – one who voluntarily commences assistance to another in jeopardy has duty to continue to provide aid, at least if the initial act of helping thereafter put them in a worse position – even w/o initial responsibility

Statutory Duty (Including “Bad Samaritan” Laws)

Failure to provide statutory – if capacity to perform constitutes a violation

Driver causing an accident; taxpayer; parent to feed minor child

Omissions: Model Penal Code

A person is not guilty of any offense unless his conduct includes a coluntary act or the omission to perdorm an act of which he is physically capable.

If the law defining the offense provides for it

If the duty to act is otherwise imposed by law

Medical Omissions: A Special Problem

Act or Omission?

No recognized legal defense of euthanasia – even if certain of no survival

Analysis as an Omission

Ordinary versus extraordinary care distinction raises more questions than answers

What is the scope of a doctor’s duty to her patient

Barber v Superior Court

Doctor received permission from Herberts family to pull the plug – unlikely recovery

Courts held that in the absence of legislation, if patient unable to describe wants, his family and doctor can make that decision

Based on premise that law should prevent people from actively causing harmbut that it should not compel person to benefit others

Social Harm: General Principles

The voluntary act is the doing, the harm caused by the voluntary act is the wrong

Definition of Social Harm

Negation, endangering, or destruction of an individual, group or state interest which was deemed socially valuable

The definition of the offense will identify the proscribed social harm – element

Conduct Elements

Harmful conduct: driving under the influence of alcohol

Conduct complete without harm to another

Result Element

Common law murder – social harm involves the death of another

Some offenses contain both conduct and result elements


Reading for Monday. September 14, 2009

Dressler Chap 10 Mens Rea; Problem Set 4


General Principle – an act doesn’t make a person guilty unless the mind be guilty

Government must prove both actus and mens rea – evil doing mind w/ an evil doing hand

Definitions of Mens Rea

Ambiguity of the term: different colors in different surroundings

Broad Meaning: a general immorality of motive, vicious kill”, or an evil-meaning mind.

Culpability meaning. Not dependant on proof that actor caused harm w/ specific harm

Under this definition it is sufficient that the (D) committed the proscribed acts in a manner that demonstrated his bad character, malevolence, or immorality

Regina v Cunningham – charges with an offense that provided “whosoever shal … maliciously … cause to be administered to or taen by any other person any poison” so as to endanger life os such a person shall be guilty of a felony

Jury, by trial courts instruction found action to be wicked. Appeals ct reversed

Narrow Meaning: the particular mental state provided for in the definition of an offense.

Elemental meaning. Person may possess MR in culpability sense but lack in elemental

Murder –intentional killing of a human by another human. AR – killing. MR – Intentional.

Rationale of the Mens Rea Requirement

Utilitarian Arguments

Defend on grounds of deterrence. A person cannot be deterred unless he appreciates that punishment lies in store if he persists his actions

Mens rea is a difficult burden to satisfy; consequently some persons who do act with a mens rea are able to avoid conviction – a legal loophole.

Retributive Arguments

Principle of mens rea roots deeper in retributive soil. The requirement flows from out society’s commitment to individual choice

Frequently Used Mens Rea Terms


Definition: actors purpose, desire, or conscious objective to cause result or engage in conduct

Knowingly or with Knowledge





Statutory Interpretation: What Elements does a mens rea term modify

Specific Intent and General Intent

Model Penal Code

Section 2.02 In General

Culpability Terms

Principles of Statutory Interpretation 



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