#16403 - Criminal Exam Attack Outline

Retributive
- Positive retributivism– moral guilt sets lower limit
- Negative retributivism– moral guilt sets upper limit
- Fair Play argument– extract debt incurred by violating rules
- Social cohesion argument– expressive function of punishment
Utilitarian
- Punishment allowed only when it prevents greater evil
Mixed theory
- Moral guilt and social benefit are both necessary but not sufficient conditions
Purposes of penal codes
- MPC §1.02(2)– prevent commission of offenses, promote correction and rehabilitation, safeguard offenders against excessive or arbitrary punishment
- NY– deter, rehabilitate, incapacitate
- CA– punishment, which is best achieved by proportionality and uniformity

MPC §2.01(1)– conduct must include a voluntary act
- Not voluntary–
  - reflex or convulsion
  - bodily movement during unconsciousness or sleep
  - conduct under hypnosis [few states adopted]
  - bodily movement otherwise not product of effort of actor
- Maybe voluntary– unremembered act, uncontrollable impulse, unintended, or unforeseen consequences
Martin– imputes voluntary element, not met by being arrested and carried to highway
- Low– distinguishes Martin because opportunity to surrender drugs before jail
  - Eaton– follows Martin because failure to impute voluntariness leads to absurdity
- Macias– illegal immigrant denied entry to Canada, return to US not voluntary
  - Abriz-Ambriz– conviction upheld since never legally in Canada
Newton– acts during shock-induced unconsciousness involuntary
Decina– knowledge of epilepsy means voluntary act when seized while driving
Status crimes
- City of LA– can’t prohibit sitting, lying down, or sleeping – criminalizes humanity
- Robinson– can’t criminalize status of addiction
  - Powell– limits Robinson, denies alcoholism defense to being drunk in public
- Harper– punishing alcoholics for public intoxication unconstitutional
  - Kellogg– public drunkenness law applied to homeless alcoholics constitutional
Sleepwalking
- Cogdon, Parks– sleepwalking is involuntary, rather than insanity
- Luedecke– medical study proved involuntary act during sexomnia

MPC §2.01(3)– unless penal statute requires particular action, criminal liability for omission arises only when law of torts or some other law imposes duty to act
Good Samaritan and misprision laws– require action or reporting
- Martinez– omission liability for other crime based on duty created by GS law
Jones– omission liability only where statute imposes, special relation, contractual duty, or voluntarily assumes care and secludes victim
Cardwell– must take steps reasonably calculated to fulfill duty of care
Special relationships
- Parent-child
  - Pope– child abuse requires parental relation and caused abuse
  - Bartley– parent has duty to adult child who is dependent due to disability
  - Gargus– child has duty to care for elderly parent after assuming responsibility
  - Carroll– stepmother owed duty of care
  - Miranda– parental liability not extended case-by-case beyond legal categories
- Beardsley– no legal duty towards partner in adulterous affair
- Pestinkas– liability after agreeing to feed elderly man, knowing no other way to eat
One who creates another’s peril
- Levesque– started fire then failed to report, convicted of manslaughter of firefighters
- Evans– supplied heroin then failed to call for help when victim overdosed
- Lisa– Restatement of Torts insufficient of notice of duty for omission liability
MPC §2.01(4)– possession is an act if knowingly received or omission if aware of control for time sufficient to terminate possession
Possession
- Bradshaw– knowledge not inherent in possession; mens rea burden shifted to D
- Ramirez-Memije– sufficient to know possession of skimming device but not contents

MPC §2.02(1)– mens rea required for each material element of the offense
- MPC §1.13(9)-(10)– defines material element
MPC §2.02(2)– four kinds of culpability
- Purpose–
  - conscious object is to engage in conduct or cause result
  - aware of attendant circumstances or believes or hopes they exist
- Knowledge–
  - aware of nature of conduct or that attendant circumstances exist;
  - aware of practical certainty of result
- Recklessness–
  - Conscious disregard of substantial and unjustifiable risk that material element exists or will result from conduct.
  - Risk must be gross deviation from law-abiding person in actor’s situation, given nature and purpose of conduct and circumstances known to him.
- Negligence–
  - Should have been aware of substantial and unjustifiable risk that material element exists or will result from conduct.
  - Must be gross deviation from standard of care of reasonable person in actor’s situation.
MPC §2.02(3)– where the statute is silent as to culpability, the default is that it requires recklessly, knowingly, or purposely. Negligence is insufficient.
MPC §2.02(4)– where the statute lists a culpability requirement for one element but not others, it is assumed that that level of requirement applies to all elements.
Common law — Culpability
- Cunningham– malice means intent/purpose or recklessness
- Gray– where statute does not define common-law term, presume legislature adopted common-law definition, unless evidence otherwise
- Santillanes– [majority] negligence in criminal statute = criminal negligence req’d
- Hazelwood– [minority] negligence in criminal statute = ordinary negligence req’d
- Elonis– where statute is silent, impute only mens rea necessary to separate wrongful from otherwise innocent conduct (qualified endorsement of moral wrong theory)
Presumptions– constitutional only when we have confidence it will always be true
- Francis– mandatory presumption of intending act’s natural consequences unconstitutional
- Barnes– permissive inferences allowed when more likely true than not in given case; jury can infer knowledge that property is stolen from unexplained possession

MPC §2.04
- Mistake is defense if it negatives required mens rea.
- Defense unavailable if D would have been guilty of another offense if situation were as D supposed, but liability is reduced to what it would have been had situation been as supposed.
Cordoba-Hincapie– accords with MPC, allowing mistake of fact defense
Moral wrong theory– no imputed mens rea requirement for attendant circumstance when the act is morally wrong in itself
- Lesser wrong theory– no imputed mens rea when act constitutes a lesser crime, as known by defendant (especially minors, sex, drugs)
Prince– moral wrong theory to reject mistake of fact defense
Benniefield– lesser crime theory to reject mistake of fact defense; prosecution must prove knowledge of drug possession but not of proximity to school

Definition– exists when liability is imposed without any demonstrated culpability, not even negligence, with respect to at least one material element of the offense
Balint– no imputed mens rea requirement for regulatory offenses– selling drugs
- Exercise of police power
Dotterweich– no imputed mens rea requirement for regulatory offenses– labeling drugs
- Balance hardships
Morissette– imputes mens rea requirement for codified common law offense of larceny
- Public welfare offense
Staples– imputes mens rea requirement for gun offenses– insufficient notice
- Freed– no imputed mens rea requirement for grenades
X-Citement– mens rea requirement carries through ambiguous statute which criminalizes otherwise innocent conduct, even if not most grammatical reading

MPC §2.02(9)– no mistake defense, since no mens rea required as to whether conduct constitutes an offense, or existence, meaning, application of law, unless law specifies otherwise
- Accords with Marerro, International Minerals
- Discords with Liparota, Cheek
MPC §2.04(1)– ignorance can be defense if it negates mens rea required to establish a material element
- Accords with Varszegi, Smith
Marerro– mistake of law unavailable unless government affirmatively misleads
International Minerals– no proof req’d that D knew of existence and meaning of regulation where statute prohibited “knowingly violating” regulation.
- Overholt– under Int’l Minerals, req’d that D knew he was doing something unlawful, but not req’d to prove D knew of specific regulatory law
Liparota– red’s proof that D knew of regulation, where it would otherwise criminalize apparently innocent conduct
Cheek– specific intent to violate required for federal criminal tax offenses
- Inapplicability claim granted, but constitutional invalidity claim denied
- Ansaldi– Cheek exception does not apply to drug...

#16403 - Criminal Exam Attack Outline - Criminal Law

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