CRIMINAL LAW REVIEW OUTLINE, SYLLABUS I - II

PROFESSOR CRUMP, SPRING 2001

Disclaimers: (1) Every summarization results in omission and therefore distortion. (2) Accordingly, this outline gives the big picture, not all the details. (3) It is easy to suffer the illusion of mastery from merely reading an outline without actually mastering it. (4) Therefore, as a result of item 3, it's important for you to outline the material yourself or otherwise master it. [Please don't be offended by the frank and businesslike tone of these disclaimers (they're based on experience!)]

I. HOMICIDE

A. TEXAS--BASED ON MODEL PENAL, with a few variations.

1. MURDER: three kinds. Intentionally or knowingly causing death of individual; intending SBI & committing act clearly dangerous/human life; committing act clearly dangerous in furtherance of felony. Intent=conscious desire; knowledge=substantially certain. SBI: death or protracted loss of use of bodily member/organ.

2. SENTENCE REDUCTION [ANALOGOUS TO VOL MANSLAUGHTER]: immediate influence of sudden passion arising from an adequate cause. Adequate cause=provocation that would produce a degree of rage, resentment, etc. in a person of ordinary temper preventing cool reflection; sudden passion means immediately or directly caused by the person killed or another acting together. The offense remains murder. Burden on defendant (preponderance).

3. MANSLAUGHTER: recklessness; corresponds to "invol" manslaughter elsewhere. Recklessness=aware of substantial and unjustified risk, conscious disregard.

4. CRIMINALLY NEG HOM: crim negligence=ought to be (but by implication isn't) aware of substantial and unjustified risk; failure to be aware is gross deviation from std of care of ord person.

[5. CAPITAL MURDER; consider later.]

B. PENNSYLVANIA PATTERN (PA. & CALIF.)

1. MURDER: malice aforethought. Misnomer: requires neither malice nor aforethought. Express=intent. Implied=abandoned & malignant heart, or in course of "inherently dangerous felony."

a. 1st degree: premeditation & deliberation (or various circumstances, including poison, lying in wait, etc.). Precise meaning is confusing. Some courts say that premed & delib can arise in an instant. Past Calif. cases have tended to require evidence of planning, preparation, appreciation, absence of diminished capacity, etc., but more recent cases uphold jury's finding of premed & delib by nature of killing, e.g., aiming & shooting.

b. 2d degree: absence of these circumstances.

2. VOLUNTARY MANSLAUGHTER: Analogous to Texas' sentence reduction.

3. VOLUNTARY MANSL: without "due care & circumspection." Court interpretation: recklessness.

4. NEGLIGENT HOMICIDE.

5. VARIATION: some jurisdictions have more degrees, different wording, etc.

C. VEHICULAR INTOXICATION HOMICIDES (briefly covered, for awareness mainly)

D. FELONY MURDER

1. arguments con (blameworthiness missing, nondeterrence, etc.); pro (blameworthiness, proportional grading, deterrence, etc.

2. differing definitions & limits: (1) dangerous act (Texas), or inherently dangerous felony (Calif)? (2) merger=disallowance of proving felony murder based on proof of lesser included (e.g., if manslaughter used as basis, all manslaughter would disappear & become murder; therefore, manslaughter usually prohibited as basis). 3. course & furtherance. 4. causation: must defendant personally do the act? or proximately cause the death, by foreseeably putting events in motion? or, merely put them in motion?

E. RELATED ISSUES

1. MODEL P.C. CRITIQUE OF PA. PATTERN: lack of clarity means arbitrary findings; also making degree depend solely on mens rea means irrational grading (some worse homicides are lesser graded).

2. CRIME DEFN GENERALLY: Clarity, so understood by judge/jury. Correspondence to guilt, so accurately determined. Provable. Exclude innocent, harmless conduct.

3. TEXAS' HOMICIDE EVIDENCE STATUTE: broadly allows evidence of previous relationship.

4. LESSER INCLUDED OFFENSES: the concept; when submit.

II. ELEMENTS OF CRIMES

A. THE CONCEPT: break the defining statute down into constitutent elements. Not always easy to do. Exposes ambiguities (e.g., knowingly "enter," or "knowingly" on a Sunday as well?) and unprovable elements (not in the business of boarding animals). (Don't forget that one element is: this D is the one who did it!)

B. ELEMENTS OF DWI: (1) operate (2) motor vehicle (defined) (3) in a public place (4) while intoxicated (defined). And there is one more element; what is it?

C. LOGIC OF ELEMENTS

1. DEDUCTIVE LOGIC (SYLLOGISM): 2 premises, proper middle term, conclusion. Crime def'n is first premise. (Note possible fallacy if either premise untrue or form wrong.)

2. INDUCTIVE: analogy and induction by generalization.

3. CORRESPONDENCE TO LEGAL REASONING: IRAC is syllogistic; we also use analogy and induction by generalization.

D. STATUTORY CONSTRUCTION; ALTERNATIVE LOGIC

1. EXAMPLES: MAIL FRAUD (elements: scheme to defraud OR obtain property, etc., involving use of mails); COMPUTER FRAUD & ABUSE (elements include damage to "individual")

2. FORMALISM V. INSTRUMENTALISM; NATURAL LAW & POSITIVISM

3. BOBBITT'S "SIX MODALITIES" OF INTERPRETATION: textual, historic, structural, doctrinal, prudential (policy), ethical.

4. EXAMPLES: Mail fraud case--OR construed as AND, by overriding textual analysis with historic (legislative intent, course of amendments), structural (offense vs. Louisiana, which itself is a sovereign in a federal system) & doctrinal (previous cases) methods. Computer statute case--INDIVIDUAL construed to include corporation by textual, doctrinal, historic, & prudential methods.

E. STRATEGY AND THE USE OF ELEMENTS

1. EXAMINATION STRATEGY: (1) "the principles governing the issue of ___ are:"; (2) the facts and their correspondence to these principles are:"; (3) "therefore, the conclusion is:". The elements make up part of the principles. The principles and the factual treatment should be exhaustive on an examination--with every qualification, exception, refinement, ambiguity, etc.

2. PROOF OUTLINE (in practice: lay out elements, proof, before start trial).

3. LEGISLATIVE DRAFTING STRATEGY: recognize elements; recognize ambiguity; recognize unprovables; define so that all conduct intended to be criminalized is included clearly; exclude innocent harmless conduct.

4. EXAMPLE: COMMON LAW BURGLARY: the defendant, breaks, and enters, a dwelling, of another, at nighttime, with intent to commit a felony. Note why badly drafted: burglar in building, unprovable unless you know when he entered; numerous elements don't correspond to the distinction of harmful behavior from innocence. TEXAS: defendant, enters (broadly defined), a habitation or building (broadly defined), not then open to the public, with intent to commit felony, theft or assault; or, with the requisite intent, remains concealed; or, enters and commits fel, theft, assault. NOTE how this Texas definition avoids some of the deficiencies of the common law definition.

F. ACTUS REUS (voluntary act, omission, or possession, together with circumstances & causation-result). Omission: there must be a legal duty. Possession: actual or constructive, but knowledge & control required. act: must fit definition & (usually) be voluntary. "Status" offenses are heavily disfavored, although actions associated with status are not (public intoxication isn't excused by alcoholism). The loitering example: is "loitering" or "prowling" that annoys or frightens others a sufficient act to support criminalization? The causation element: usually doesn't require forseeability or exclusive cause, or direct causation; but-for causation usually enough, even if there is another sufficient concurrent cause.

G. MENS REA (the guilty mental element): Texas/MPC--(1) intent (MPC, "purposefulness), (2) knowledge, (3) recklessness, (4) criminal negligence, and (5) strict liability (only if statue dispenses with mental element). Critique of other jurisdictions' drafting: ad hoc use of terms like "malice," "wilfulness," "knowledge," or even "intent" is unclear. Horrible example: the pollution "knowing endangerment" case we read, where Congress said it didn't want knowledge to mean substantial certainty--but didn't tell us what it DID mean(!) Variations: (1) the ostrich problem (can knowledge be implied from deliberate ignorance? MPC and many other jurisdictions have this provision; Texas doesn't, although it can be approximated by recklessness). (2) transferred intent: different victim, lesser or closely related crime. (3) at common law, specific intent (intent to do a specific act or cause a specific result) differed from general intent (which denotes a generally and sloppily defined guilty mens rea, e.g., malice aforethought). (4) strict liability (e.g., intoxication offenses).

H. INDICTMENT: DOCUMENT PREPARATION

1. CASE-SPECIFIC INGREDIENTS: All elements of defined offense; factual notice in some instances (e.g., identity of victim, manner & means of homicide/assault, property stolen, etc); defendant, on-or-about date, venue (county & state). All elements charged must be proved beyond a reasonable doubt, and the indictment must be considered CAREFULLY in light of this requirement.

2. FORMAL INGREDIENTS & PROCESS: to be covered later, when we study the process.

3. PROFESSIONALISM IN PREPARATION: (1) ALL elements (easy to miss). (2) use statute. (3) adopt statutory language; do not invent willy-nilly. (4) better yet, use a tried and proven form. (5) allege factual detail with awareness that it all must be proved beyond a reasonable doubt. (6) avoid specifying surplusage unrelated to the elements. (7) consider all forms of violation--e.g., if murder, should you add to the intentionally/knowingly charge an alternative paragraph charging murder by intent to cause SBI?

4. EXAMPLE: critique an indictment in which it is charged that a murder was done by "intentionally and knowingly caus[ing] the death of [named victim] by shooting him in the neck with a Sturm Ruger .38."

J. COURT'S CHARGE: DOCUMENT PREPARATION.

1. FORMAT AND WORDING: don't be recklessly creative; follow form. It still isn't easy.

2. DEFINITIONAL PARAGRAPHS: first, define the crime. Use the statute. Then, define all of the terms of art that are necessary and definable for a lay juror to understand the crime. Do not define crimes that are not in the indictment (or that are not lesser includeds); do not define, at guilt-innocence, terms relevant only to sentence. Use statutory terms (or terms required by Court of Criminal Appeals). Drafting an indictment is not an exercise in creativity, nor is it a time to wax poetic.

3. APPLICATION PARAGRAPH: TRACK THE INDICTMENT. This part, which follows the definitional paragraphs, must (1) correspond to the definitional paragraphs, (2) conform to the indictment, and (3) be supported by the evidence. Failure to so conform is a defect. For example, authorizing conviction on a theory not defined in the indictment (e.g., intent/SBI, when the indictment charges only knowing and intentional murder), or omitting elements (an individual; cause the death of), or submitting a theory that is charged but not supported by the elements, is error. [It may or may not be reversible; we haven't fully considered that.] This paragraph is called the application paragraph because it "applies" the definition of the crime to the alleged elements. Note the similarity to IRAC: definition paragraphs state all the rules, and application paragraphs combine these with the facts, instructing the jury, then, what conclusion to draw.

4. PROCEDURAL & EVIDENTIARY PARAGRAPHS. D may be entitled to a charge telling the jury not to consider failure to testify, or not to misuse extraneous (other) oiffenses proved by the evidence but not charged. State may be entitled to a charge on multiple parties who act together, if that is the case. What kinds of paragraphs? Depends on the case.

5. END MATTER: BURDEN, INDICTMENT, PRESUMPTION OF INNOCENCE, DELIBERATIONS, ETC. There are certain universal ingredients: the jury is told again about reasonable doubt and presumption/innocence and is told about other factors guiding its deliberations.

6. LESSER INCLUDED OFFENSES: depending on the case.