Inglese giuridico - l'analisi del Criminal Law

Criminal Law Home

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Criminal law Sources of Criminal Law Model Penal Code Burden of proof Substantive issue on appel

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Just punishment The elements of criminal offence The criminal act The need for Actus Reus Proctor

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v. State Omissions Jones v. US Possessions US v. Maldonado The requirement of harm Lawrence v.

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Texas The requirement of volunitariness People v. Newton Martin v. State People v. Grant The

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prohibitions of “status” crimes Robinson v. California Powell v. Texas Johnson v. State Rogers v.

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Tennessee City of Chicago v. Morales The Guilty Mind Kinds of culpability The requirement of

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guilty mind People v. Dillard United States v. Wulff United States v. X-Citement video United

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States v. Park Lambert v. California Regina v. Faulkner Mistake and Mens Rea Default Rules

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Regina v. Prince People v. Ryan The mistake of law People v. Bray United States v. Baker Cheek

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v. United States Commonwealth v. Twitchell Hendershott v. People State v. Cameron Causation

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People v. Beardsley Homicide Offenses Intentional Homicide Intentional murder Francis v.

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Franklin Premeditated murder United States v. Watson Voluntary manslaughter People v. Walker

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Ex parte Fraley Rowland v. State People v. Berry People v. Wu Unintentional Homicide

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Involuntary manslaughter Commonwealth v. Welansky State v. Williams Reckless murder Mayes

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v. People Commonwealth v. Malone Felony murder State v. Martin People v. Gladman Capital

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punishment Furman v. Georgia Gregg v. Georgia Olsen v. State Aggravating circumstances

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Mitigating circumstances Lockett v. Ohio Atkins v. Virginia Roper v. Simmons Weighing the

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circumstances Tison v. Arizona McCleskey v. Kemp Justification and Excuse Defensive Force

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People v. La voie State v. Leidholm People v. Goetz Tennessee v. Garner Choice of Evils:

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Necessity The Queen v. Dudley & Stephens Mental illness M'Naghten Rules People v. Serravo

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Smith v. State Attempt State v. Lyerla People v. Murray McQuirter v. State People v. Rizzo

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People v. Staples Solicitation People v. Lubow Impossibility Booth v. State Complicity State

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v. Ochoa State v. Tally People v. Beeman Conspiracy People v. Lauria United States v. Diaz

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Theft Offenses Commonwealth v. Mitchneck Carrier's Case The King v. Pear Fraud People v.

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Sattlekau Larceny Embezzlement Robbery Burglary Extortion People v. Dioguardi Sodomy

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Rape Brown v. State People v. Dorsey People v. Barnes State v. Smith Miscellaneous Crimes

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BRIEFCASE Elements of crime READING ASSIGNMENTS

Introduction to Criminal Law: 1-20 (Introduction), 21-27 (Just Punishment), 31-32 (Utilitarianism and

Retributivism), 34-36 (Deterrence), 44-47 (Rehabilitation), 50-53 (Incapacitation), 74-83 (Shaming and

Proportionality),

The element of a Criminal Offense: 103-149 (103-148 (The Criminal Act, The Need for an Actus Reus,

Omissions, Possession, Requirement of Harm, Voluntariness, The Prohibition of Status Crimes), 155-169

The guilty mind: 175-255

Mistake of Law: 212-239

Causation: 259-262, 302-307

Homicide Offenses Generally: 309-310

Intentional Homicide: 325-380

Unintentional Homicide: 381-427, 432-436

Capital punishment: 453-505

Justification and Excuse: 507-509

Defensive Force: 515-549, 552-559

Choice of Evils: Necessity: 563-569

Mental Illness: 605-622, 627-635, 646-653

Attempt: 659-660, 664-681, 684-687

Solicitation: 689-694

Impossibility: 694-701

Complicity: 715-739, 743-756

Conspiracy: 791-809, 812-819, 823-832

Theft Offenses: 939-944, 954-957, 984-994

Extortion: 971-975

Rape: 863-892 2

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OUTLINE FROM LECTURES AND BOOK

LAST UPDATE: 05/14/2009 19.21, NR. 7

Titolare cattedra: Professor Randall Coyne. Section: 602 th

Books & materials: Criminal Law (Kaplan, Weisberg & Binder) (Aspen Pub. 6 edition 2008).

KEYS:

1. in corsivo e riquadro: gli articoli di legge copiati integralmente, in giallo le integrazioni;

2. in rosso: le parti segnalate come importanti dal prof.;

3. evidenziate in giallo: le parti ritenute importanti;

4. evidenziate in verde: le domande d’esame.

CRIMINAL LAW

Criminal law involves the prosecution of wrongful acts by the state which are considered to be so

serious that they are a breach of the sovereign's peace (and cannot be deterred or remedied by mere

lawsuits between private parties). Generally, crimes can result in incarceration, but torts cannot. The vast

majority of the crimes committed in the United States are prosecuted and punished at the state level.

Federal criminal law focuses on areas specifically relevant to the federal government like evading

payment of federal income tax, mail theft, or physical attacks on federal officials, as well as interstate

crimes like drug trafficking and wire fraud.

All states have somewhat similar laws in regard to "higher crimes" (or felonies), such as murder and

rape, although penalties for these crimes may vary from state to state. Capital punishment is permitted in

some states but not others. Three strikes laws are statutes enacted by state governments in the United

States which require the state courts to hand down a mandatory and extended period of incarceration to

persons who have been convicted of a serious criminal offense on three or more separate occasions.

These statutes became very popular in the 1990s. They are formally known among lawyers and legal

academics as habitual offender laws. A person accused under such laws is referred to in some

jurisdictions as a "prior and persistent offender." The name comes from baseball, where a batter is

permitted two strikes before striking out on the third. Some states distinguish between two levels:

FELONIES and MISDEMEANORS (minor crimes). Generally, most felony convictions result in

lengthy prison sentences as well as subsequent probation, large fines, and orders to pay restitution

directly to victims; while misdemeanors may lead to a year or less in jail and a substantial fine. To

simplify the prosecution of traffic violations and other relatively minor crimes, some states have added

a third level, infractions. These may result in fines and sometimes the loss of one's driver's license, but

no jail time. For public welfare offenses where the state is punishing merely risky (as opposed to

injurious) behavior, there is significant diversity across the various states. For example, punishments for

drunk driving varied greatly prior to 1990. State laws dealing with drug crimes still vary widely, with

some states treating possession of small amounts of drugs as a misdemeanor offense or as a medical

issue and others categorizing the same offense as a serious felony.

SOURCES OF CRIMINAL LAW

Sources of criminal law (Fonti del Diritto):

1. Statutes, all the 50 state and the federal government have different criminal statues; no

jurisdiction is bound by another’s statue or judicial interpretation of its statue and the federal

Constitution and some statue constitution have been interpreted that criminal defendants can

only be charged with violation of a criminal statue. Because criminal statues are often vague or

ambiguous, court often have broad discretion in interpreting them;

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2. Precedent , even thought criminal charges now must have a legislative mandate, statues

sometimes unavoidable suffer from ambiguity or vagueness of terms or incompleteness of

coverage. Judges therefore often must engage in common law judicial reasoning when they

decide how to interpret a statute or constitution and when they supply rules of law not found in

1 With updating and modifications an important part of the following material has been taken from the sites

http://supreme.justia.com/us, http://www.law.cornell.edu, http://dui.findlaw.com, http://www.audiocasefiles.com,

http://www.enfacto.com, http://www.scribd.com, http://legal-dictionary.thefreedictionary.com, http://en.wikipedia.org, and

from the outlines of other students (a special thanks to Annie W. Nagle).

2 I giudici di common law non possono annullare gli atti ma semplicemente disapplicarli (e perciò successivamente anche

riapplicarli) secondo il principio dello stare decisis (latino) ovvero i giudici di rango inferiore non possono discostarsi dalle

sentenze dei giudici di rango superiore (sono infatti ordinati gerarchicamente, a differenze di quelli italiani)

I giudici della Corte Suprema degli Stati Uniti sono nominati a vita dal Presidente degli Stati Uniti, perciò slegati

politicamente seppur scelti inizialmente per tale motivo. (Bush ha nominato molti giudici, Carter nessuno).

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statues or constitutions. When two cases strike a judge a sufficiently similar, the judge will

decide the two cases similarly, but the judge is concerned only with relevant similarity and to

distinguish relevant from irrelevant factual similarities. When the lawyers and judges use an

earlier decision as precedent, they do not simply assert that the earlier case was

circumstantially similar to the case before the court. They assert that the rule or rational of the

earlier case governs the case before the court. Justice Homes famously wrote: “Abstract

propositions do not decide concrete cases”;

3. Constitution, the original federal constitution has a number of clauses pertaining to substantive

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criminal law like the clause of the due process of law (14 Amendment).

To extent that these constitutional clauses, or their state constitutional analogs set limits to

criminal liability, courts may not only strike down statutes that transgress those limits, but also,

where possible, interpret statues to avoid (evitare) such conflicts.

MODEL PENAL CODE

The Model Penal Code (MPC) is a statutory text which was developed by the American Law Institute

(ALI) in 1962. The current form of the MPC was last updated in 1981. The purpose of the MPC was to

stimulate and assist legislatures in making an effort to update and standardize the penal law of the

United States of America. The standard they used to make a determination of what the penal code

should be was one of "contemporary reasoned judgment" — meaning what a reasoned person at the

time of the development of the MPC would judge the penal law to do. The ALI performed an

examination of the penal system in the USA and the prohibitions, sanctions, excuses, and authority that

are used throughout. The MPC was a combination of what the ALI deemed to be the best rules for the

penal system in the United States. Since its formulation, the MPC has played an important role in

standardizing the codified penal laws of the United States.

BURDEN OF PROOF

Burden of proof: the normal rule that the prosecution must prove its case beyond a reasonable doubt.

This rule gives a concrete definition to the ideal that the accused are entitled to (:ha il diritto di) a

“presumption of innocence”.

A criminal litigant may face two different kinds of burdens:

1. The burden of production: the duty to introduce at least some prima facie evidence in order to

compel a fact finder to at least consider a claim;

2. The burden of persuasion: the duty to persuade the fact finder that the totality of evidence

presented warrants accepting or rejecting the claim.

SUBSTANTIVE LEGAL ISSUE ON APPEAL

The reason of appeal:

1. unconstitutional conviction;

2. failure of every party of the trial;

3. Insufficient evidence;

4. The jury was improperly instructed on the (1) element of the offence or the (2) criteria of the

justifications or an (3) excuse defense.

Introduction to Criminal Law

JUST PUNISHMENT

The distinctions from criminal law and civil law:

1. Punishment (incarceration, capital punishment, home arrest);

2. Deterrence:

a) Individual deterrence is aimed toward the specific offender. The aim is to impose a

sufficient penalty to discourage the offender from criminal behavior;

b) General deterrence aims at society at large. By imposing a penalty on those who commit

offenses, other individuals are discouraged from committing those offenses.

3. Rehabilitation: job skills; educational program, etc.;

4. Retribution: a moral obligation to punish criminal regardless of any practical effect of doing so;

5. It is the State that prosecute the criminal and have to proof all the elements, beyond all

reasonable reason (in civil law we have party against party).

LEADING JUSTIFICATIONS FOR CRIMINAL PUNISHMENT:

1. UTILITARIAN PUNISHMENT, the cases in which punishment ought to be inflicted may be

reduced to four heads: when punishment would be: 1) misapplied (when there is no real

offence), 2) inefficacious (no power to produce effect), 3) superfluous (when the same effect

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may be obtained by means more mild [delays, rewards, etc.], 4) too expensive (the evil of the

punishment exceeds the evil of the offence).

a) Deterrence, Jerry Bentham: “the evil of the punishment must be made to exceed the

advantage of the offence”.

Deterrence is often contrasted with Retributivism, which holds that punishment is a

necessary consequence of a crime and should be calculated based on the gravity of the

wrong done.

b) Rehabilitation means; To restore to useful life, as through therapy and education or To

restore to good condition, operation, or capacity. The assumption of rehabilitation is

that people are not natively criminal and that it is possible to restore (reintrodurre) a

criminal to a useful life, to a life in which they contribute to themselves and to society.

Rather than punishing the harm out of a criminal, rehabilitation would seek, by means of

education or therapy, to bring a criminal into a more normal state of mind, or into an

attitude which would be helpful to society, rather than be harmful to society.

This theory of punishment is based on the notion that punishment is to be inflicted on an

offender so as to reform him/her, or rehabilitate them so as to make their re-integration

into society easier. Punishments that are in accordance with this theory are community

service, probation orders, and any form of punishment which entails any form of guidance

and aftercare (ristabilimento) towards the offender.

This theory is founded on the belief that one cannot inflict a severe punishment of

imprisonment and expect the offender to be reformed and to be able to re-integrate into

society upon his release. Although the importance of inflicting punishment on those

persons who breach the law, so as to maintain social order, is retained, the importance of

rehabilitation is also given priority. Humanitarians have, over the years, supported

rehabilitation as an alternative, even for capital punishment.

c) Incapacitation: taking away the power of doing injury. Mutilations and perpetual

imprisonment possess this quality.

Incapacitation is considered by some to be a subset of specific deterrence. Incapacitation

aims to prevent future crimes not by rehabilitating the individual but rather from taking

away his ability to commit such acts. Under this theory, criminals are put in jail not so

that they will learn the consequence of their actions but rather so that while there they will

be unable to engage in crime.

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2. RETRIBUTION (desert): a moral obligation to punish criminal regardless of any practical

effect of doing so, it’s a payback. The retributivist McCloskey equates “rough and ready” trial

procedures with punishment of the innocent;

Retributive justice is a theory of justice that considers that proportionate punishment is a

morally acceptable response to crime, with an eye to the satisfaction and psychological benefits

it can bestow to the aggrieved party, its intimates and society.

In ethics and law, "Let the punishment fit the crime" is the principle that the severity of penalty

for a misdeed or wrongdoing should be reasonable and proportional to the severity of the

infraction. The concept is common to most cultures throughout the world, which includes the

punishments of "life for life, eye for eye, tooth for tooth, hand for hand, foot for foot."

Depending on the retributivist, the crime's level of severity might be determined by the

amount of harm, unfair advantage or moral imbalance the crime caused.

3. PROPORTIONALITY from the crime to the sentence.

THE ELEMENTS OF THE CRIMINAL OFFENCE

1. Criminal Act;

2. The Guilty Mind;

3. Causation. The element of a Criminal Offense

THE CRIMINAL ACT

ACTUS REUS, sometimes called the external element or the OBJECTIVE ELEMENT of a crime,

is the Latin term for the "guilty act" which, when proved beyond a reasonable doubt in combination

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with the mens rea , "guilty mind", produces criminal liability. In the United States, some crimes also

3 Professor mentioned “Pulp finction”.

4 In criminal law, mens rea – the Latin term for "guilty mind" – is usually one of the necessary elements of a crime. The

standard common law test of criminal liability is usually expressed in the Latin phrase, actus non facit reum nisi mens sit rea,

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require proof of an attendant circumstance. The actus reus is the physical portion of the crime, it has to

be a volunteer action, conduct. The criminal law has to be written clear to prosecute people.

Act requirement has two elements:

1. Proscriptions, charging and proof (Proibizione, accusa e prova dell’atto) of an actus reus;

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2. Charge and prove beyond a reasonable doubt in order to establish liability for a particular

crime.

Pay attention:

 Judgments of voluntariness are deeply controversial;

 The principle of legality: “no crime without a law, no punishment without a law”;

 The requirement of an act may refer to:

1) Past 2) Voluntary 3) Wrongful o potentially harmful 4) Conduct 5) Specified 6) In advance 7)

by Statute.

The “act requirement", has four subtopic: act, voluntariness, omissions, and possession.

The element of a Criminal Offense

THE NEED FOR AN ACTUS REUS

Actus reus is the physical part of the crime. Act requirement

PROCTOR V. STATE: Proctor was convicted of “keeping a place, to wi