Professor Hoffheimer

Criminal Law

Professor Hoffheimer

Spring 2002

I. Basic Culpability Doctrines

Part I: The Traditional Concepts

A. Sources of Law – Always ask yourself what the source of legal authority is.

Common Law
Historical sense – the English origins of a law
Development of law in American jurisdictions
Model Penal Code
Developed by thinkers who felt that there was enough of a consensus to hammer out a standard
Never intended to be adopted verbatim; it’s more of a suggestion
No state has ever adopted the MPC from beginning to end
It is not the Common Law
Many states have adopted portions of the MPC into their law; MS has not
MS Law

B. Purpose of Criminal Law

The thing that is distinctive about criminal law is that it is designed to punish the offender.
Four rationalizations for punishing the offender:
Incapacitation – theory for neutralizing people who might do harm butare not necessarily morally blameworthy (e.g. the lady who was put in Parchman because she had TB and refused to get help).
Retribution – getting even with those who have caused harm touches an emotional need to fire back at someone.

The problem:
The “got you last” effect
Sometimes retribution is not available (e.g. when someone commits suicide)
Sometimes retribution would create another wrong (e.g. torturing someone for what they did wrong)
Deterrence – discouraging a certain type of behavior

Specific Deterrence – deterring a particular individual from doing something wrong (e.g. we don’t want Bob robbing the Kroger gas station again)
General Deterrence – deterring the general public from doing something wrong by punishing one person
The Problem:
We don’t know how effective it is.
What we do know is that, to some degree, the effect of deterrence seems to be greater based on how great the punishment is. However, juries are more reluctant to enforce more severe punishments.
Rehabilitation – trying to deter someone from committing crimes by attempting to give their soul a makeover.

The Problem:
We’re not sure that it works.
Some adults might feel that they’re not being treated with dignity.

C. Some Criminal Law-Related Terms

Habeas Corpus – civil procedure to test the legality of someone’s confinement. In the United States, it prevents Congress from suspending an inquiry into someone’s confinement.
Bill of Attainder – special legislative act providing capital punishment without a trial for a person guilty of a high offense such as treason or a felony; prohibited by the Constitution.
Treason – attempting to overthrow the government of the state to which one owes allegiance, either by making war or materially supporting its enemies
Bill of Rights – defines the situations in which a politically organized society will permit free, spontaneous, and individual activity, and guaranteeing that government power will not be used in certain ways
Corpus Delecti – “the body of the crime,” does not mean that there must be a dead body in evidence. It refers to:
The material or substance upon which a crime was committed (e.g. a body, house, etc.)
The substantive fact of crime; evidence of act and agency.

D. The Stages of Criminal Procedure

There’s a crime that someone claims has been committed
Leads to an arrest
Initial appearance
Opportunity to form a charge
See if bail is a possibility
Preliminary hearing
Judge must determine if there is a probable cause over which the grand jury might bind the accused
Grand Jury
Must decide if there will be an indictment (i.e. a formal charge)
Arraignment
D is brought into the court and read the indictment
D enters a plea (e.g. guilty, not guilty)
Trial
Jury must swear to return a true verdict
Right to a jury trial may be waived, and then there is a bench trial
The critical point in the case is when the judge gives instructions to the jury
After instructions, jury finds a verdict
After verdict, sentencing
If you’re the D, it would be preferable to have some distance of time between the verdict and the sentencing. That way, they’ll have a distance between hearing the victims testify about how angry they are and deciding what to do with the perpetrator of the crime.
If you choose to appeal, remember that you file your appeal in the county trial court.

E. The Common Law Approach to Criminal Law

Criminal Law in MS: MS follows the Common Law approach.
Elements - When you have several different elements of a crime:
They must all be proven with evidence in order to convict someone of the crime.
Under US law, due process requires the element to be proven beyond a reasonable doubt.
Furthermore, the jury must be properly instructed on each element
How it works:
E.g. in Faulkner, three of the elements of the crime were setting fire, setting fire maliciously, and doing so to a ship.
If someone sets fire to a dock, or does it accidentally, then they are not guilty of that crime.
Mens Rea (intent): There must be a “culpable state of mind.”
Words that have been used (sometimes confusingly) to describe mens rea: maliciously, willfully, feloniously
U.S. v. Yermian: There must be mens rea with every criminal conviction unless it's a jurisdictional question.
E.g. you may have to “knowingly” and “willfully” make false statements, but you do not have to “knowingly” and “willfully” do so within the jurisdiction of the federal government in order to be convicted of the jurisdictional element of the crime.
Actus reus: An accused must have committed a criminal act to be convicted; the law does not punish thoughts that are not acted out.
The act normally consists of a prohibited physical act, but it may consist of an omission where there is a duty to act.

Mens rea established traditionally with one of three states of mind:
General intent: the volitional doing of the prohibited act
E.g. recklessness (involving actual awareness of a risk and the culpable taking of that risk).
Specific intent: requires some intent to do something more than merely the proscribed act; the intent to accomplish the precise criminal act with which one is later charged
E.g. robbery, assault, burglary, forgery, etc.
General Rule for Specific Intent: An honest and reasonable mistake of fact is a defense because there is a mental element that attaches to all of the elements of defense.
Majority Exception: Statutory rape
Criminal Negligence: involves a gross breach of a duty to care
Voluntary Intoxication:
The Rule: Voluntary intoxication is a defense to crimes of specific intent but not to crimes of general intent.
The Problem with this Exception: No one has been able to really explain why this distinction makes sense, or even how we are to tell the difference between specific and general intent.
The Solution: Many modern codes, and the Model Penal Code, have abandoned the general/specific distinction, and instead set forth the precise mental state required for each element of each crime.
Voluntary Intoxication in MS (from McDaniel v. State): It is not available as a defense if:

The defendant was able to tell the difference between right and wrong, or
The defendant voluntarily prevents himself from distinguishing from right and wrong by getting drunk

In other words, in MS, voluntary intoxication is almost never going to be a defense to crime.

F. Mistake of Law

Generally no defense: as a general rule, “mistake of law is no defense.” More precisely, this means that the fact that the defendant mistakenly believes that no statute makes his conduct a crime does not furnish a defense.
Example: Defendant, who is retarded, does not realize that unconsented-to intercourse is a crime. Defendant has unconsented-to intercourse with the victim. Defendant’s ignorance that unconsented-to intercourse is a crime will not be a defense; so long as defendant intended the act of intercourse while knowing that the victim did not consent, he is guilty.
No “reasonable mistake” exception: So long as the crime is not itself defined in a way that makes defendant’s guilty knowledge a prerequisite, there is usually no “reasonable mistake” exception to the “mistake of law is no defense” rule.
It is important to remember that the oft-stated rule, “Ignorance of the law is no excuse,” really only means “Ignorance that a statute makes one’s conduct a crime is no excuse.” A mistake of law as to some collateral fact may negative the required mental state, just as a mistake of fact may do so.
Example: D reasonably believes that he has been divorced from W, his first wife, but in fact the “divorce” is an invalid foreign decree, which is not recognized under local law. D then marries V. D’s “mistake of law” about the enforceability of the prior divorce will negative the intent needed for bigamy.
However, if he’s married to five women, but isn’t aware that his state has an anti-bigamy law; he has no defense of ignorance.
Innocent or Passive Conduct: A person will probably not be convicted of a crime when it is entirely innocent or passive (i.e. they haven’t done something that, like other criminal acts, should put them on notice, Lambert).
Unclear Statutes: How the court construes criminal statutes that are ambiguous:
“Rule of Lenity” – principle that ambiguous criminal statutes should be construed in favor of the defendant to require some type of mens rea.
Under this rule, there is a requirement of mens rea unless the crime at issue is a strict liability crime.
The Problem – When the legislature doesn’t specify what the required mental element for the crime is, the result is courtroom battles over what mental element is required.
Extraordinary cases of mistake of law dealing with mental element:
Long: Ignorance of the law is allowed when a man’s lawyer tells him that his divorce is valid in another state and the man unknowingly commits bigamy.
Erhlichman: Someone who has been “authorized” by the president to do something illegal is not excused for thinking that the president had the authority to request such a thing.

Part II: Distinguishing between Malum Prohibitum and Mal in Se Crimes

A. Malum prohibitum vs. mal in se

Malum prohibitum – a crime that may not be morally wrong, and is not dangerous in itself, but violates a public welfare regulation
Most of these came about in the last century and a half since most of our new areas of legislative activity took place after the Civil War.
No culpable mental state is required for these types of crimes.
Mal in se – a crime that is considered morally wrong, has traditionally been considered morally wrong, and is dangerous in itself
A culpable mental state is required for these types of crimes.

Who would you rather defend? A client who is guilty of a crime that is mal in se because in that case, the state would be required to prove more in order for your client to be convicted.

B. Criminal Intent and Silent Statutes – Balint and Morissette approaches:

Balint: Man convicted of selling a substance that had just been prohibited because he didn’t fill out the appropriate tax form before selling it. Court determined that it would frustrate legislative purposes to require mens rea for the crime. After Balint, prosecutors had the idea that unless there was a specific mens rea requirement, courts were going to rule in their favor.
Morissette: Case where the man recycled the bomb casings for money, violating a federal law against knowingly stealing and converting U.S. property. The Court says some type of mens rea is required.
Court uses Morissette to clarify: Court says that Balint only applies to public welfare cases (i.e. offenses adopted for the public good).
E.g. dumping trash in the ocean, selling bad milk, selling cocaine derivatives without filling out the proper forms.
Essentially, the Court is drawing a clear line between malum prohibitum (like Balint) and mal in se (Common Law offenses like stealing, rape, or murder).
Typical Situation: All of the elements of a crime are present, but defendant says he didn’t do it with criminal intent.
Note: When we talk about a mens rea, there’s some level of mens rea for all of the elements. When we talk about crimes that are strict liability we’re talking about crimes that are based on one element. Usually in these cases that one element is the thing being challenged.
Determining what type of offense the legislature intended:
Typically, some level of mens rea is required. The exception is statutory crimes where a requirement of mens rea would frustrate the legislative purpose of the statute.
Therefore, it’s up to the court to determine legislative intent (by attempting to discern whether it’s a malum prohibitum or mal in se crime).
What a legislature can do to clear these kinds of issues up: State specifically, “There IS/IS NOT a mens rea requirement,” when drafting the legislation.
What all of this adds up to: Since a case may rest upon the distinction of whether the crime is malum prohibitum or mal in se the main task will be determining legislative intent.

C. Hoffheimer’s Guidelines in Determining Legislative Intent

History of the Statute – How old is this crime? The older the crime, the more likely it is a mal in se crime. The younger the crime, the more likely it is a malum prohibitum crime.
Tradition – Is it an offense that is traditionally considered immoral? If so, then probably mal in se.
Objective – What’s the objective of the criminal law at issue? Is it attempting to punish an individual for wrongdoing or is it attempting to prevent risks or dangers to the public for the good of some larger policy objective? If the latter, probably malum prohibitum.
Amount of Regulation – Is it an area of extensive regulation with a variety of various criminal regulations (e.g. tax law, environmental law, drug enforcement)? If so, probably malum prohibitum.
Potential Hazard – Does the activity pose a risk of great harm to many people? If so, probably malum prohibitum.
Severity – the more severe the punishment in the statute the more likely the crime is mal in se.
Note: None of these guidelines are absolutely reliable, and a lot of them overlap. They’re just guidelines to legislative purpose.

Part III: The Conduct Requirement

A. Unconsciousness

Rule: Where not self-induced, unconsciousness (a “fugue state”) is a complete defense to a crime (from Newton). A bodily movement is not “conduct” unless it is voluntary, i.e. directed by the will. Otherwise, there’s no liability for the crime.
Remember: Defendant’s claim that an act was not voluntary because he was unconscious does not have to be specially pleaded, and the defendant does not have to prove he was unconscious. He must only prove that there is a reasonable doubt on the matter.
Model Penal Code: The MPC effectively recognizes the defense. Defendant is not liable if he does not commit a “voluntary act,” and a “voluntary act” is defined so as to exclude a “reflex or convulsion” or movement during “unconsciousness.” See outline of MPC §2.01(1) and (2) infra.
Jury Instructions: The jury must be instructed on the requirement that the act be voluntary when there is the possibility that the act was done automatically.
Recognized Instances: Automatism may be caused by physical trauma, sleepwalking, epileptic seizures, and has even been recognized in cases of hypnosis (though there has been much debate over how much hypnosis deprives some of the free will to do something).

B. Omissions

General Rule: In most situations, there is no criminal liability for an omission to act (as opposed to an affirmative act).
Existence of legal duty: There are some “special situations” where courts deem defendant to have a special legal duty to act:
Statute: Defendant’s omission may be punished under a statute that speaks in terms of positive acts (e.g. “You must drive the speed limit”).
Contract: Similarly, a legal duty may arise out of a contract(e.g. the Pestinikas case where the couple contracted with the older gentleman to take care of him, but they actually ended up starving him to death).
Special relationship: Where defendant and victim have a special relationship — most notably a close blood relationship – defendant will be criminally liable for a failure to act. Other relationships that fall into this category: employer/employee, common carrier.
Voluntary assistance: Finally, defendant may come under a duty to render assistance if he undertakes to give assistance. This is especially true where defendant leaves victim worse off than he was before, or effectively dissuades other rescuers who believe that defendant is taking care of the problem.
Creating the risk of harm: Defendant may come under a duty to assist a person whom he has injured.

Part IV: The Model Penal Code

A. Culpability: The MPC requires culpability to accompany all material elements.

B. MPC § 1.13. General Definitions

Statute: includes the Constitution and a local law or ordinance of a political subdivision of the State
Act or Action: bodily movement whether voluntary or involuntary
Voluntary: meaning specified in §2.01
Omission: failure to act
Conduct: an action or omission and its accompanying state of mind, or, where relevant, a series of acts and omissions
Actor: includes, where relevant, a person guilty of an omission
Acted: includes, where relevant, “omitted to act”
Person, he, and actor: include any natural person and, where relevant, a corporation or an unincorporated association
Element of offense:

i. Such conduct or

ii. Such attendant circumstances or

iii. Such a result of conduct as

Is included in the description of the forbidden conduct in the definition of the offense; or
Establishes the required kind of culpability; or
Negatives a defense under the statute of limitations; or
Establishes jurisdiction over or venue

Material Element of an offense: Basically, anything the prosecution has to prove about the crime is a material element:

i. The harm or evil, incident to conduct, sought to be prevented by the law defining the offense, or

ii. The existence of a justification or excuse for such conduct.

C. MPC § 2.01. Requirement of Voluntary Act; Omission as Basis of Liability; Possession as an Act