Criminal Law

• Retributive Theory of Punishment

  1. Fundamentally based on the ides that criminal behavior upsets the balance of society and punishment restores it
  2. Looks backwards/is corrective
  3. Severity of punishment depends on depravity of conduct and offender's ability to make the right choice
  4. Offender deserved punishment to create moral equilibrium
  5. Not concerned with shaping human behavior
  6. Humans are rational and able to make the right decisions; When they don't, they deserve punishment
  7. Oppose excessive government power to impose punishment on those who don't deserve it
• Utilitarian Theory of Punishment


  Punishment should be limited to the extent that is necessary to protect society

  The total benefit of punishment should exceed its total costs
• Utilitarian Theory of Punishment

  • Forward looking

  Aims to produce the maximum social good possible at the lowest costs
• Aim of Utilitarian Theory of Punishment


  Prevent crime in the future
• How Does the Utilitarian Theory of Punishment Prevent Crime


  Deterrence (the evil of punishment should be greater than the advantage of committing the offense)

  Benefit of committing the crime > (punishment x probability of getting caught) = offender committing the crime

  If the chances of capture are low, then the punishment should be high
• Statutory Interpretation

  1. Intrinsic Sources (statutory text, words, syntax, punctuations)
  2. Extrinsic Sources (legal history, legal inaction after court decisions, judicial decisions, agency interpretations)
  3. Policy Based Arguments
• Canons of Construction Used for Stat. Interpretation

  1. Expressio unius - expression of one thing means the exclusion of other things
  2. Noscitur a sociis - general term is similar to specific terms in a series
  3. Edjusem generis - general term's meaning is the class of objects reflected in the more specific terms accompanying it
  4. Rule Against Surplusage - no interpretation that leaves words or sections useless; everything has a distinct meaning
• Actus Reas = Voluntary Act

  1. 1st requirement for criminal conviction; The offender must engage in a voluntary act; Proved beyond a reasonable doubt
  2. The act needs to be sufficiently connected to the harm sought to be prevented
  3. Unexecuted unlawful intent merely amount to a thought
  4. The actus reas for possession can be Constructive Possession
  5. Third party intervention can undermine the "voluntary" nature of the act
• Constructive Possession

  1. Requires: 1) power to exercise control over the item, and 2) intent to exercise that power
  2. Does not apply to internet images due to lack of sufficient control
  3. A mere unexercised ability to manipulate a thing isn't constructive possession
• Automatism and Actus Reas

  1. Refers to a state where one is unaware of his own actions; Meaning that there was no voluntary act (i.e. no actus reas established)
  2. If a defendant knowingly undertakes a behavior running the risk of triggering a dangerous reflexive type of behavior, that knowing may satisfy the voluntary act requirement
• Mens Rea

  1. 2nd requirement for criminal conviction
  2. The actor must hold a culpable mental state; Proven beyond a reasonable doubt
• What Are the 4 Mental State Requisites to Conviction

  1. Purposely - conscious object to engage in particular conduct; Deliberate
  2. Knowingly - being practically certain that conduct will cause a certain result or aware that the conduct is of a necessary nature
  3. Recklessly - recognizes but disregards a substantial and unjustifiable risk; Action is taken in spite of the risk (subjective)
  4. Negligence - does not involve any subjective awareness; Actor creates a substantial and unjustifiable risk that he should've been aware of (objective)
• Pure v. Impure Strict Liability Statutes

  1. Pure strict liability requires no mens rea for criminal conviction
  2. Impure strict liability requires mens rea for some but not all elements for criminal conviction
• Public Welfare Offenses

  1. Involves neglect; Created to control risks posed in the future by certain behaviors or neglectful acts
  2. Behaviors covered create a danger without the perpetrator intending to do harm; Would be impossible for state to prove mens rea
  3. Look for statutes enacted for public safety/health and its purpose is for regulation, not punishment
  4. If something is a historical, common law crime, the court will read the mens rea requirement in accordance with common law principles
  5. Legislatures are free to eliminate the mens rea requirement when needed
• Strict Liability Analysis


  Is there legislative intent to create a strict liability crime?

  Did the legislature act within its constitutional powers?
• Due Process and Strict Liability 


  Due process forbids strict liability for felonies; Felony statutes must have a mens rea requirement
• When Does Elimination of Mens Rea Not Violate Due Process

  1. Penalty is relatively small, and
  2. Conviction does not gravely besmirch (think about how felons cannot own guns, seek employment easily, vote, or be a juror)
• Mistake of Law v. Mistake of Fact

  1. Mistakes of law afford no excuse to liability as long as the law was duly enacted and published
  2. Mistakes of fact can afford a defense
  3. Mistakes of law can be a defense in the context of super complex laws (e.g. tax)
  4. Note: Belief that tax laws are unconstitutional don't count as a mistake of law because it indicates a full knowledge and simply a conclusion that they're unconstitutional
• Homicide


  Generally defined as an unjustified killing with purpose to cause death, intent to inflict serious bodily harm, extreme recklessness with respect to a serious risk of harm to another's life, or felony murder
• Types of Homicide

  1. 1st Degree Murder
  2. 2nd Degree Murder
  3. Voluntary Manslaughter
  4. Involuntary Manslaughter
  5. Extreme Recklessness (Depraved Heart)
  6. Felony Murder
• 1st Degree Murder


  Intentional and Premeditated OR involves killing during the course of one or more felonies; If not 1st, it is 2nd degree murder

  GA's mens rea requirement for 1st degree murder is malice aforethought
• Premeditation

  1. A jury can conclude premeditation even from a few seconds, as long as there is time to reflect and consider the idea of killing and reaching a decision not to do it
  2. Treated more harshly because the actor made a bad decision even after considering the alternatives
• Factors to Evaluate Premeditation

  1. Time elapsed
  2. Events occurring immediately before the killing
  3. Relationship between the defendant and victim
  4. Existence of motivation
  5. Kind of weapon used and how it was obtained
  6. How the weapon was used in the killing
• Manslaughter


  Homicide without malice; Two types 1) Voluntary and 2) Involuntary
• Voluntary Manslaughter

  1. Intentional killing that lacks malice because the killer acted after "adequate provocation" OR under an honest but unreasonable belief that the killing was necessary for self-defense
  2. Provocation Requirement has 1) an objective element (would cause a reasonable person to lose control), and 2) a subjective element (defendant was in fact provoked and acted as a result of a sudden, irresistible passion
  3. If there is a "cooling off" period, then it is not manslaughter, but murder (except if it was a continuous affray)
• Provocation for Voluntary Manslaughter

  1. If there is time between the provocation and the killing for the voice of reason to be heard, then the killing is murder
  2. If there is a continuous affray without deliberation present, the killing is voluntary manslaughter
  3. Physical fights suffice for provocation, but words alone do not
  4. Witnessing adultery constitutes provocation
• Involuntary Manslaughter


  Unintentional killing, committed recklessly or negligently
• MPC 2.02

  1. Requires the requirement for recklessness for involuntary manslaughter and defines it subjectively; The actor must be subjectively aware of the risk and undertakes it anyway
  2. Difficult to prove, so the objective standard for recklessness provides the solution; If the magnitude of the risk is sufficiently large that an ordinary man would've realized the danger, it can be used as indirect evidence to show subjective awareness
• Criminal Negligence


  Requires a more substantial deviation from the standard of care than negligence; Fact finders can the defendant's unique traits, but criminal negligence does not require subjective awareness of the risk
• Reckless Homicide (Depraved Heart)

  1. No intent to kill, but the defendant's disregard for the value of human life is so extreme in its recklessness as to be the moral equivalent of an intention killing
  2. The objective magnitude of a risk provides important evidence of the defendant's subjective awareness
• Felony Murder

  1. A killing that occurs in the course of a non-homicidal felony
  2. Justified when the casual connection between the predicate felony and the death is not too attenuated (i.e. death is a probable consequence of the felony)
  3. A defendant can still be liable for felony murder, even if the killing was not done by him or a co-conspirator since death was foreseeable in the course of the felony
• Elements of Rape

  1. The act of sexual intercourse;
  2. Accomplished by a) force or; b) threat of force; or c) when the survivor is unconscious/lacks capacity;
  3. Without the survivor's consent
• History of Rape Law

  1. Historically, rape conviction required physical force and resistance
  2. Upmost resistance required even if there is a risk of physical injury
  3. Upmost resistance no longer required; Resistance is evaluated from the perspective of a reasonable person in the victim's circumstances; Met via threat of or actual force
  4. Resistance completely eliminated; Focus now on perpetrator's force or creating fear in the victim; Absence of resistance doesn't negate possibility of non-consent
• Current Rape Law

  1. A defendant is not guilty of rape if a reasonable person wouldn't have understood the victim's expression of non-consent as such
  2. A defendant does not have to be subjectively aware of the non-consent, just negligent as to its existence
  3. Any act of sexual penetration in absence of what a reasonable person would believe to be affirmative and freely given permission is sexual assault; Force is met by penetration without consent; Consent can be shown with acts or statements reasonably viewed as such; No need to expressly announce it
• Georgia Rape Statute Elements

  1. Carnal knowledge
  2. Force
  3. Against the victim's will

  No mens rea, but force serves it (involves coercion/direct threat which is evidence of knowledge or recklessness; Non consent can entail the victim's subjective thoughts during the encounter or their contemporaneous expressions, verbalizations, or physical assertions
• Attempt

  1. An act falling short of the consummated crime; An intentional act that crosses the line from preparation to perpetration of a crime with intent that the crime be committed; Punished as if the crime had been completed
  2. 2 Scenarios: 1) actor commits the final act but fails, 2) actor plans the crime but is intercepted
• Can Someone Attempt 2nd Degree Murder?


  No. 2nd degree murder attempt is not a thing. The actus reas for attempt is intent, while the actus reas for 2nd degree murder is recklessness. One cannot "intend" to be "reckless."
• Actus Reas Element for Attempt

  1. Historically, a high standard of near completion was needed to satisfy intent
  2. A low standard was then need; Intent could be inferred from social conditions and customs
  3. Dangerous Proximity was then needed, meaning that a reasonable likelihood that the crime will be committed but for interference
  4. GA/MPC Current Law: The defendant must take a substantial step towards commission
• Attempt Liability MPC 5.01(1)(C)


  Imposed when an actor "purposely does or omits to do anything which, under the circumstances as he believes them to be, is an act or omission constituting a substantial step in a course of conduct planned to culminate in his commission."
• Abandonment Defense for Attempt

  1. Occurs when the defendant gets far enough to constitute attempt, bur changes course before completion
  2. Common law doesn't recognize a defense of abandonment; The MPC and few JX's that do recognize it require it to be 1) complete and 2) voluntary. Complete means never doing it ever, while voluntary means a true change of heart.
  3. A defendant cannot abandon once attempt is compete (act is not preparation); However, a decision not to complete can be an argument that defendant never intended to commit the crime in the first place