Criminal Law Outline 1/10 - 1/12/11

Mark Lee
Office 135
Tel: x2949
Usually on campus on Tue and Thur
Background:
LEE: 1 - 30
BCJ&L: 1 - 3 [up to Testing Cases ]; 12 [from Retribution as a Limiting Principle ] - 20 [up to
Measuring Deterrence]

1. Reading Outline
A. BCJ&L: 1 - 3 [up to Testing Cases ]
i. Introduction
a. Three (3) elements of criminal liability
(1) criminal act: actus reus
(2) criminal state of mind: mens rea
(3) absence of defense/excuses
b. Why criminal law?
(1) purposes of criminal punishment
(2) criminalization decision
(a) relevant factors that make the crime punishable by criminal sanctions
ii. Purposes of Punishment
a. retributive
(1) punishment justified by the rightness/fairness of the institution of punishment
(a) not by good consequences such institution produce
(b) deontologist: justification = moral culpability
b. utilitarian: deterrence, incapacitation, rehabilitation
(1) punishment threatened or imposed to achieve desired social consequences
(a) prevent/minimize criminal behavior
c. typically more than one purpose is present/used to assess a case; fact dependent
B. 12 [from Retribution as a Limiting Principle ] - 20 [up to Measuring Deterrence]
i. Retribution as a limiting principle
a. treats punishment of blameworthy wrongdoer as an ethical imperative
(1) doesn't matter if punishment doesn't produce beneficial social consequences
b. H.L.A. Hart: criminal process achieves good consequences by incorporating
retributive premises
(1) two examples of social benefits by incorporating it
(a) enhances people's control over their lives
(i) retribution insists that people have the power to choose how they behave
(b) public acceptance
(i) retributive premise describe the way people treat each other
C. Deterrence
i. special deterrence
a. deterrence by intimidation
b. to dissuade particular offenders from repeating crimes
ii. general deterrence
a. general prevention/deterrence by example
b. to deter public from criminal behavior by showing them consequences suffered by
those who commit crimes
 iii. rests on the principle that human actors perform a hedonistic calculus of pain and
pleasure when choosing among alternative courses of conduct
a. The Rationale of Punishment, Jeremy Bentham
(1) utilitarian focus: preventing/reducing incidence of future offensive behavior
b. the rational calculator
2. Class Notes
A. What is law?
i. lawyers try to help people deal with their problems stemming from present or
anticipated disputes
a. the law is an activity
b. dispense advice, information, draft documents
c. all lawyer anticipate what might happen is a case go to court/litigation
d. how to resolve disputes in client's favor
e. judges will try to grasp certain fundamental guiding precepts that most people
subscribe to and then try to figure out how those precepts might bear on the dispute
for that judge
(1) when lawyer tries to persuade the judge re his client's cause, he explains those
guiding precepts → legal arguments
(2) to a lawyer, law is something that we do, precepts are easily accessible
(a) difficulty lies in the process of reasoning whereby those precepts are applied
(b) lawyer questions the meaning of the law
(c) the law is uncertain
B. How to take notes
i. write down questions; the answers are not important
ii. instead of saying “I don't know,” say “I'm not prepared”
C. Exam
i. provide table of contents for case book, a list of every case discussed in the right order,
statutes
ii. tests ability to think/reason
D. Substantive criminal law
i. this course focuses on the recurring problems
a. stems from real, obvious tension
b. procedural criminal law → plays no role in this course
ii. functions served by criminal law
a. one function in particular: optimal deterrence of certain conducts
(1) why do we have criminal law when we have other/civil laws?
(a) torts suits already works to change future behavior
(b) criminal law → punishes people where taking away monetary assets doesn't
matter
(i) e.g., punishing a person with debt
(ii) use of non-monetary sanctions doesn't work unless enforced
b. argue primarily about the interpretation of statutes
(1) underlying principle is optimal deterrence

Discussion:
LEE: 30 - 33
BCJ&L: 80 [from Rex v. Manley] - 92 [to Kolender v. Lawson]; 103 - 104 [Nash v. U.S.]
1. Class Notes
A. Rex v. Manley
 i. Facts: Rex charged Elizabeth Manley charged with acts tending to public mischief. D
went to trial, convicted. D appealed on ground that there is no cause of action as act
tending to public mischief.
ii. Issue: Is an act that prejudices the community indictable under the common law of
crimes?
iii. Rule: all offenses of a public nature, acts or attempts as tend to prejudice the
community, are indictable.
iv. Reasoning: Committing an act tending to the public mischief is a misdemeanor. The
court indicated that guilt of this crime would be predicated on the fact that the
defendant caused two officers to devote their time to a nonexistent crime and that other
members of the public who answered the description of the nonexistent suspect were
put at peril of suspicion and arrest. This burden of proof was met.
v. Notes: if this case were to arise today or anytime in the U.S., D would have won
because there was no statute.
a. What are the implications of putting Manley in jail?
B. From now on what we will be talking about is the interpretation of criminal statutes
i. Principle of Legality
a. definition: no one should be punished for a crime that has not been so defined in
advance by the appropriate authority (usually the legislature)
(1) signifies that desirability in principle of advance legislative specification of
criminal conduct
b. it does not speak to the question of what conducts are criminal, but a normative
expectation regarding how that decision should be made (process of crime
definition rather than content of specific offenses)
c. not in any ordinary sense a rule of law
d. widely accepted ideal
e. forbids the retroactive crime definition (cannot make law after crime has happened)
(1) no judicial crime creation
f. signifies the desireability in principle of advance legislative specification of
criminal conduct
ii. suppose in the aftermath of Manley, relevant legislature passes a law that says “thou
shall not engage in acts tending to public mischief”
C. What is the reason for always requiring a statute?

BCJ&L: 92 [from Kolender v. Lawson] - 103; 105 - 106 [to obscenity] ; 134 [from
possession] - 148 [to Bouie ] ; 150 - 154

1. Class Notes
A. Principle of legality
B. Void for vagueness - argument is the same as the principle of legality
i. Kolender v. Lawson
a. Facts: D was detained or arrest on approximately 15 occasions in two years pursuant
to Cal. Pen. Code 647(e). D was prosecuted twice, convicted once.
b. Issue: Should Section 647(e) be voided for vagueness?
c. Rule: Void-for-vagueness doctrine requires that a penal statute define the criminal
offense with sufficient definiteness that ordinary people can understand what
conduct is prohibited and in a manner that does not encourage arbitrary and
discriminatory enforcement.
d. Reasoning: Section 647(e): "...If the surrounding circumstances are such as to
 indicate a reasonable man that the public safety demands such identification." The
first half of 647(e) is unconstitutionally vague because it gave excessive discretion to
the police (in the absence of probable cause to arrest) whether to stop and interrogate
a suspect or leave him alone.
e. Almost no statutes are ever struck down as void-for-vagueness.
(1) why?
(2) however, fundamental ideas behind void-for-vagueness doctrine are important.
ii. Nash v. United States
a. Facts: vagueness challenge to criminal prosecution under the Sherman Antitrust Act,
which had interpreted to forbid an "undue restraint of trade."
b. Supreme Court held that the statute survived the vagueness review.
c. Possible policy reason: almost all the time people subject to antitrust lawsuits have
the benefit of constant counsel
d. Notes: the law is full of instances where fact or grade of criminal liability is an
estimate of degree
(1) in many cases, the law requires that a line be drawn somewhere along a spectrum
of infinite gradation
C. Model Penal Code
i. drafted by law professors
D. Interpretation of conduct elements
i. Keeler v. Superior Court
a. Facts: Prosecution charges Keeler with murder for kiling a fetus.
(1) unlawful killing of human being with malice forethought
(2) defendant can have a preliminary hearing
(a) D not convicted or aquitted.
(b) D did not go through trial.
(i) judge/jury would not have been sympathetic to D for killing fetus
(ii) D files writ of prohibition pleads with appellate court to stop trial before
it has even started
b. Issue: Should a viable fetus qualify as a human being under California law?
(1) if not, D cannot be charged with murder and prohibition will lie.
c. Rule:
d. Reasoning: interpreted criminal law narrowly for the meaning of a human being.
Writ of prohibition issued.
e. Policy: policy supports that criminal statutes are construed in favor of D.
f. Dissent: common law supports fetus is a human being.
ii. People v. Sobiek
a. Facts: indictment is given to grand jury for grand theft charge. Grand jury indicts
and D moves to quash indictment
b. Issue:
c. Rule:
d. Reasoning: the court interpreted the meaning of grand theft narrowly.
e. Notes: what is the argument for reading grand theft broadly?
(1) in Keeler, court interpreted the statute narrowly when there was a good argument
for interpreting it broadly. Same is true in this case.
(a) CA statute criminalized abortion: termination of a viable fetus.
(b) there were two different statutes: the legislature distinguished between
termination of a viable fetus and murder.
(i) Sobiek lost because interpreting the grand theft statute broadly will not
 trump any other statutes, but interpreting the murder statute broadly will
trump abortion statutes.
iii. McBoyle v. United States
a. thou shall not engage in transportation of a stolen vehicle..."or any other self-
propelled vehicle not designed for running on rails."
b. D urged the court to interpret the statute narrowly.
c.