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Criminal Law Outline - Professor Bolitho - Campbell Law - Part 1

By Robert Havelka
Professor Bolitho - Fall 2019

Download the PDF version of this outline

Part 2 >>

I. Criminal Law a. General

i. Types of Crimes

  1. Category
    1. Malum in se (bad in itself) – generally, CL crime
    2. Malum prohibitum (bad b/c we prohibit it) – generally, statutory
  2. Severity
    1. Felony (> 1 year)
    2. Misd. (<1 year)
    3. Regulatory Infractions (traffic tickets, etc)
  3. Jurisdiction (federal, state, local, etc)

ii. Theories on Punishment

  1. Deterrence
    1. General (societal): risk v. reward
    2. Specific (Individual): Inhibit behavior in a person
  2. Incapacitation (immobilize/neutralize)
  3. Rehabilitation (make better, improve, heal)
  4. Retributive Justice (suffer in return)

iii. Burdens of Proof (BoP)

  1. Reasonable Suspicion (to investigate)
  2. Probable Cause (to charge)
  3. Preponderance of the Evidence (CIVIL BoP)
  4. Beyond Reasonable Doubt (BrD)
    1. Jackson v. Va test: “rational trier of fact (juror) could have found the essential elements of the crime beyond a reasonable doubt (sufficiency of the evidence)
    2. In re Winshop: upheld Due Process – no person…shall be deprived of life, liberty, or property w/out due process of the law
    3. Blackstone’s Formulation: It is better that 10 guilty person roam free than 1 innocent person imprisoned
b. Elements of a Crime

i. Identification – government must prove BrD that Δ & Perp. Are the same person

  1. Direct Evidence – fingerprints, photographs/camera footage, DNA
  2. Circumstantial – Various circumstances/evidence that doesn’t directly implicate but, when taken together, could prove BrD that this was the person

ii. Actus Reus – the act that we are punishing => necessary, “cannot convict on guilty mind alone”

  1. Voluntary (must be)
    1. Act
      1. Possession
        1. Actual – Δ physically possesses the/an item
        2. Constructive
          1. Exclusive - Δ knowingly holds the power and ability to exercise dominion and control over something
          2. Shared – Government must establish ‘nexus’ between Δ and item and show knowledge and access required to exercise dominion and control
            1. Proximity alone cannot establish knowledge in joint occupied nor dominion and control
            2. May be established through direct or circumstantial evidence (more than proximity though proximity can be used as long as there is more)
    2. Omission – failing to meet a legal duty to act
      1. Statute imposes duty to care for another
      2. One stands in certain status relationship (parent & child)
      3. One has assumed contractual duty to care for another
      4. One has voluntarily assumed the care of another and secluded the helpless person from others/other forms of aid
  2. Involuntary (doesn’t count for actus reus)
    1. Reflex or convulsion
    2. Bodily movement while unconscious or asleep
    3. Conduct during hypnosis or resulting from hypnotic suggestion
    4. Bodily movement that otherwise is not a product of the effort or determination of the actor, either conscious or habitual
  3. Status is not an action (having STD, addiction to alcohol, etc) and cannot be criminalized

iii. Mens rea – guilty mind

  1. Culpability (broad meaning): morally blameworthy mindset
  2. Elemental (narrow meaning): particular mental state by the statute
    1. Knowingly
      1. Actual Knowledge: has the knowledge
      2. Deliberate Ignorance: chose to avoid knowledge/verification
        1. Ostrich Instruction
          1. Δ claims no knowledge
          2. Evidence in record of deliberate ignorance
    2. Intentionally – acting w/ conscious object
      1. Types
        1. General Intent: intending the action
        2. Specific Intent: intending the outcome
      2. Transferred intent – intent can transfer person-person or property-property
        1. Ex) shoot at dog but kill neighbor = no transfer
        2. Ex2) shoot at neighbor and kill their wife = transfer
    3. Willfully
    4. Recklessly (gross deviation of reasonable behavior of reasonable person)
      1. Consciously disregard
      2. Substantial
      3. Unjustifiable risk
      4. Leading to cause of death/injury of another
    5. Negligently – same as reckless but w/o awareness (conscious disregard)

iv. Jurisdiction – requires a ‘federal nexus’ of constitutional authority b/c of limited police power

  1. Jurisdiction: power of the court to hear a case (adjudicate)
  2. Venue: place w/in jurisdiction you’re located (place where judicial authority should be exercised). Every case requires proof (gov must make) that venue is proper.

v. Causation – important for “results crimes”

  1. Types
    1. “But For” Causation: start here. This is where you determine what, if any, actions Δ took that either caused or accelerated the results crime.
    2. Proximate Cause: when you find “but for” cause, now determine if this can be held ‘legally responsible’. (choosing the “but for” cause is the one) “fairness”
      1. Direct Causation – act or omission → result/harm
      2. Indirect Causation – act or omission → intervening causes → result/harm
        1. Intervening causes are separate ‘but for’ causes that happen after Δ voluntary act
        2. Intervening superseding causes – break causal chain between Δ act and result – key factor: FORSEEABILITY
          1. Responsive/Dependent Event: generally forseeable & doesn’t sever causal connection
          2. Coincidental/Independent Intervening Event: generally unforeseeable & severs the causal chain
        3. Concurrent sufficient causes do not outweigh or destroy one another. They simply hold that both parties equally responsible b/c indeterminable exactly who killed someone/it was at exact same time

vi. Concurrence – actus reus and mens rea must happen simultaneously in order to find crime. Can’t intend to kill someone and then not do it and then later accidentally/otherwise kill them

c. Crimes

i. Causing death – contain the following elements: act, causation, death, and…

  1. What is Death/Life?
    1. Life: CL: “Born Alive” Rule = in order to qualify as homicide one must be born alive (if the baby cries at birth then it is universally considered alive)
    2. Death
      1. CL
        1. Dead = at the cardiopulmonary cessation (i.e. no breath or pulse)
        2. Chargeable up to a ‘year and a day’ from the cause of death
      2. Modern
        1. Dead = full brain activity + cardiopulmonary cessation
        2. As long as Gov can show “but for” + prox. Cause they can continue to charge
  2. Murder – + malice aforethought
    1. 1st degree
      1. Premeditation (intent to kill)
        1. Planning or deliberation
        2. “some appreciable amount of time” → can be as quick as a thought
      2. Intent to commit serious bodily injury to child
    2. Felony-murder (in commission of following felonies & any others listed in statute)
      1. Applicable Felonies
        1. Burglary
        2. Arson
        3. Robbery
        4. Rape
        5. Kidnapping
      2. Approaches
        1. Broad/Prox. Cause Approach: any death during felony qualifies
        2. Narrow/Agency Approach: caused by Δ or Δ conduct
    3. 2nd degree
      1. Serious bodily injury to anyone else
      2. Depraved heart – disregard for human life
  3. Manslaughter – no malice aforethought
    1. Voluntary manslaughter
      1. ‘heat of passion’ or ‘sudden quarrel’
        1. Require adequate provocation – almost always needs more than words
        2. No time in between – must be almost immediate (if not immediate)
      2. Intentional (meant to commit the act in general, not planned it)
    2. Involuntary manslaughter
      1. Unintentional
      2. Killing of another person while:
        1. Committing misdemeanor
        2. Commission of lawful act w/out due caution
        3. Commission of lawful act in unlawful manner
      3. Criminal Negligence: gross deviation from standard of care
        1. Extent of risk v. extent of awareness = test between Crim. Neg. and Depraved Heart.
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