Preface 5 results
- As is true of criminal law courses generally, this volume is devoted primarily to what is usually referred to as the “general part” of the criminal law. And thus the emphasis herein is upon the sources and limitations (including constitutional limitations) of the substantive criminal law, as well as upon general principles concerning mental state, acts and their consequences, defenses to crime, inchoate criminality (solicitation, attempts, conspiracy), and liability for the conduct of others. I have given greater attention to those particular topics that, based upon my own experience in teaching a course in criminal law for a good many years, I have found are most troubling to beginning law students. While this book is about substantive criminal law rather than criminal procedure, some procedural aspects essential to an understanding of the significance of certain criminal law doctrines are considered herein.
- While criminal law casebooks currently in use vary considerably in their approach and coverage, I have selected for inclusion in this volume the subject matter that is most commonly included in all basic criminal law courses. What this means, for one thing, is that a relatively small part of this work is devoted to discussion of the definition of particular crimes. Today, most criminal law courses consider in depth some or all of only three offense areas—homicide, rape, and theft—on the theory that they are particularly suited to achieving several of the objectives of a law school course in criminal law. And thus only these three offense categories are extensively discussed herein.
- This text may seem in one respect to be an unlikely product for a law professor, as it has no footnotes—not a single one! The absence of footnotes in this work reflects the fact that it is primarily intended not as a research tool, but rather as a study aid for use by law students during their enrollment in the course on criminal law. By excluding any documentation via footnotes of the various points considered and discussed herein, I have been able to use virtually all of the space in this conveniently-sized paperback volume for textual elaboration of the subjects covered.
- How does a law professor manage to write a book without footnotes? Easy, first write a much longer work footnotes, and then revise that work down by making many revisions in the text by deleting all the footnotes. Yes, this book is the offspring of another work, published in 2003 and updated annually since, namely, the second edition of a multi-volume treatise for lawyers, judges and researchers called
- Because of the important part that the Model Penal Code has played in the revision and codification of substantive criminal law in recent times, Code sections are often given specific mention in this text; the location of references to a particular section may be found in the table of code sections. When appellate cases are mentioned in the text, they are referred to by name and date only; they are cited fully only in the table of cases. Notwithstanding the lack of footnote references, it must be emphasized that language herein within quotation marks or block indented is that of others who can be readily identified by the interested student (see below).
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Chapter 1. Introduction and General Considerations 220 results (showing 5 best matches)
- The substantive criminal law and the substantive civil law (such as the law of torts, contracts, and property) have much in common. Civil law, like criminal law, aims to shape people’s conduct along lines which are beneficial to society—by preventing them from doing what is bad for society (as by imposing liability for damages upon those who commit torts or break contracts) or by compelling them to do what is good for society (as by decreeing specific performance of contracts for the sale of real property). Society has an interest in preventing killings and rapes; but it also wants to prevent automobile accidents and to discourage breaches of contracts. Civil law, like criminal law, is effective mainly because of the sanctions that the law imposes, through the courts, upon those who commit violations. Even these sometimes do not differ greatly as between the civil and the criminal law. Paying damages (especially “punitive damages”) for torts or contract breaches is not much...
- The substantive criminal law is to a large extent concerned with the definitions of the various crimes (whether defined by the common law or, far more commonly, by statute)—what conduct, including what state of mind, is necessary for guilt of murder, or rape, or burglary, etc. The definition of specific crimes is dealt with in chapters 13–16 of this book. But the substantive criminal law is concerned with much more than is found in the definitions of the specific crimes, for there are many general principles of the substantive criminal law which apply to more than a single crime—for instance, the principle that an insane person cannot be guilty of any crime, or that one coerced into committing what would otherwise be criminal conduct cannot be guilty of most crimes. Thus criminal battery is sometimes defined as “the intentional or reckless application of force to the person of another, directly or indirectly.” The definition does not continue: “. . . by one who is not legally insane...
- The final basic premise of the criminal law is that conduct is not criminal unless forbidden by law providing advance warning that such conduct is criminal. This idea, sometimes termed “the principle of legality,” is often expressed by the Latin phrase (no crime or punishment without law). The various areas of the criminal law in which the principal of legality operates are treated at some length herein. It is reflected in the ex post facto prohibition (see § 2.4), the rule of strict construction of criminal statutes (see § 2.2(d)), the void-for-vagueness doctrine (see § 2.3), and the trend away from open-ended common law crimes (see § 2.1).
- On the other hand, some states have taken the view that, at least where imprisonment is an authorized penalty, municipal violations are criminal, not civil, offenses. Another position is that municipal violations are criminal if the conduct forbidden by the ordinance is also forbidden by a counterpart state statute. Other states have stated that municipal violations are quasi-criminal, or partly criminal, and then they apply at least some of the principles of criminal procedure to prosecutions for ordinance violations, especially where the ordinance in question prohibits the same conduct prohibited by the state criminal law (statutory law, or common law if applicable) or where the ordinance provides for imprisonment as a punishment.
- The substantive criminal law is that law which, for the purpose of preventing harm to society, declares what conduct is criminal and prescribes the punishment to be imposed for such conduct. It includes the definition of specific offenses and general principles of liability.
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Chapter 4. Mental States 165 results (showing 5 best matches)
- Although it is cases such as these which are frequently cited for the proposition that good motives are no defense, others have relied upon many of the defense-to-liability general principles of criminal law to support the proposition that good motives are sometimes a defense. Thus it is noted that one who commits what is otherwise a crime may have the defense of necessity if his conduct, though it literally violates the law, avoids an immediate harm greater than the harm which the criminal law in question seeks to prevent—as where he steals food because he is starving and will soon die without the food; or where he breaks out of prison, which is on fire, in violation of a statute against prison-breaking, in order to save himself from the fiery death which awaits him if he stays (see § 9.1). He has the mental state that the crime in question requires (an intent to deprive the food owner of his property; an intent to break out of prison); nevertheless, he is not guilty of the crime...
- In Chapters 6, 8 and 9 consideration is given to the various general principles of criminal law of the defense-to-liability type: insanity, infancy, intoxication, coercion, necessity, consent, self-defense, entrapment and the like. As we shall see, some of these principles operate, when applicable, to eliminate the mental element that a specific crime requires. Thus a defendant’s insanity or infancy or extreme intoxication, if any such matter exists, may similarly negative the existence of the necessary mental element that larceny requires. Thus these chapters necessarily deal in some detail with the mental aspects of crime.
- A related point, on a somewhat more theoretical plane, is that it would conflict with the principle of legality to treat a defendant in a criminal case as if the law were as the defendant thought it to be. Under the principle of legality, rules of law express objective meanings that are declared by competent officials and are then binding. There “is a basic incompatibility between asserting that the law is what certain officials declare it to be after a prescribed analysis, and asserting, also, that those officials declare it to be * * * what defendants or their lawyers believed it to be. A legal order implies the rejection of such contradiction. It opposes objectivity to subjectivity, judicial process to individual opinion, official to lay, and authoritative to nonauthoritative declarations of what the law is.”
- Why is it that neither ignorance of the criminal law (in the sense that the defendant is unaware of the statute proscribing his conduct) nor mistake of the criminal law (in the sense that the defendant has mistakenly concluded that the relevant statute does not reach his conduct) is a defense? Upon the early notion that the law is “definite and knowable,” one common explanation is provided by the maxim that everyone is presumed to know the law. But even if there was once a time when the criminal law was so simple and limited in scope that such a presumption was justified, it is now an “obvious fiction” and “so far-fetched in modern conditions as to be quixotic.” No person can really “know” all of the statutory and case law defining criminal conduct. Indeed, the maxim has never served to explain the full reach of the ignorance-of-the-law-is-no-excuse doctrine, for the doctrine has long been applied even when the defendant establishes beyond question that he had good reason for not...law
- Mental State and the General Principles of Criminal Law
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Chapter 8. Excuses and Other Conditions 209 results (showing 5 best matches)
- As discussed earlier (see § 1.2(a)), the substantive criminal law is made up in part of the definitions of the various specific crimes, and in part by many general principles that have application well beyond the confines of any particular offense. Some of these general principles are of the affirmative-liability type, as is the case with those concerning inchoate offenses and parties to crime. The other general principles each have to do with some defense, a term “commonly used, at least in a casual sense, to mean any set of identifiable conditions or circumstances that may prevent conviction for an offense.”
- But in (1968), the Supreme Court refused to adopt such a “wide-ranging new constitutional principle.” One reason was the state of the record in that case; the medical testimony was that when appellant was sober, the act of taking the first drink was a “voluntary exercise of his will,” but that this exercise of will was undertaken under the “exceedingly strong influence” of a “compulsion” which was “not completely overpowering.” Noting that these “concepts, when juxtaposed in this fashion, have little meaning,” the Court found this testimony illustrative of the fact that medical knowledge in this area had not progressed to the point where it could support “a constitutional doctrine of criminal responsibility.” Moreover, the Court indicated its reluctance to “constitutionalize” the whole area of criminal responsibility, and thus gave ...unless so viewed “it is difficult to see any limiting principle that would serve to prevent this Court from becoming, under the aegis of the Cruel...
- At common law, children under the age of seven are conclusively presumed to be without criminal capacity, those who have reached the age of fourteen are treated as fully responsible, while as to those between the ages of seven and fourteen there is a rebuttable presumption of criminal incapacity. Several states have made some change by statute in the age of criminal responsibility for minors. In addition, all jurisdictions have adopted juvenile court legislation providing that some or all criminal conduct by those persons under a certain age must or may be adjudicated in the juvenile court rather than in a criminal prosecution.
- The preceding two chapters have to do with the substantive and procedural aspects, respectively, of one of the best known (albeit probably the least invoked) of all the defenses known in the criminal law: the insanity defense. The present chapter and the following chapter explore a great many other criminal law defenses. It is therefore appropriate at this point, before looking at the particulars of these other defenses, to examine in more general terms just what criminal law defenses are all about.
- thus suggests that a “reasonable suspicion” prerequisite may on occasion emerge as an aspect of the due process limits upon encouragement activity. The point seems to be that overinvolvement by the government to the extent reflected in is permissible, if at all, only against a person who is “reasonably suspected of criminal conduct or design.” The other important principle recognized in is that “the practicalities of combating” a certain type of criminal activity must be taken into account in determining whether “more extreme methods of investigation” are constitutionally permissible. However, there is reason to question the application of that sound principle in the case to conclude that more extreme methods are needed to detect drug distribution than drug manufacture. It has been persuasively argued that precisely the opposite conclusion is called for, that is, that “there usually will be a greater justification for government involvement in drug manufacturing schemes than in...
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Chapter 2. Sources and General Limitations 167 results (showing 5 best matches)
- The Supreme Court in (1798) gave this much-quoted list of ex post facto laws: “1st. Every law that makes an action done before the passing of the law, and which was innocent when done, criminal; and punishes such action. 2d. Every law that aggravates a crime, or makes it greater than it was, when committed. 3d. Every law that changes the punishment, and inflicts a greater punishment, than the law annexed to the crime, when committed. 4th. Every law that alters the legal rules of evidence, and receives less, or different testimony, than the law required at the time of the commission of the offense, in order to convict the offender.” The first three are restrictions as to the substantive criminal law, while the fourth—dealing with retroactive changes in the law of evidence—is a limitation on procedural law. And later cases have included procedural changes other than changes in the rules of evidence when the accused is thereby deprived of a substantial right. The subject of ex post...
- It was only natural that judges should create crimes from general principles in medieval England, because such legislature as there was sat only infrequently and legislation was scanty. Today in the United States, as in modern England, the various legislatures meet regularly. The principal original reason for common law crimes has therefore disappeared. And thus it is not surprising that as more and more states have enacted comprehensive new criminal codes in place of the miscellaneous collection of uncoordinated statutes, they have generally abolished common law crimes.
- Today we find the substantive criminal law in several forms: (1) mostly in statutes; (2) not infrequently in administrative regulations passed pursuant to legislative delegation of authority to an administrative agency; (3) occasionally in constitutions; and (4) sometimes in the common law of crimes. Since historically the substantive criminal law began as common law for the most part, and only later became primarily statutory, it will be well to begin with common law crimes, with a view especially to determining the place of such crimes in modern criminal law.
- It has long been settled that there are no federal common law crimes; if Congress has not by statute made certain conduct criminal, it is not a federal crime. In spite of this general proposition, Congress has provided for common law crimes in the District of Columbia, and Congress has provided that state criminal law (and this would include state criminal law of the common law variety in the states retaining common law crimes) applies (in the absence of a federal criminal statute) in those “federal enclaves,” or islands of federal territory (e.g., army posts, naval bases), located within states. Beyond this, there is a sense in which “federal criminal law is most appropriately viewed as a species of federal common law,” for it is “dominated by judge-made law crafted to fill the interstices of open-textured statutory provisions,” resulting from the fact that Congress has often “resort[ed] to highly general language that facilitates legislative consensus by deferring resolution of...
- The states that have received, into their criminal law, common law crimes have also adopted those English criminal statutes in aid of the common law enacted before 1607 (or, in some states, 1775). The interpretation put upon these English statutes by the English courts before 1607 (1775) is generally adopted along with the statute.
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Chapter 5. Acts; Concurrence and Consequences 175 results (showing 5 best matches)
- The problems of legal causation arise in both tort and criminal settings, and the one situation is closely analogous to the other. Although the courts have generally treated legal causation in criminal law as in tort law, on principle they do not have to, for the issue is not precisely the same in the two situations. In tort law, it would seem, one might logically require one who actually injured another (especially if he intended to cause an injury to another, but also even if he only negligently caused such an injury), to pay for the damage actually caused without regard to the likelihood or unlikelihood of the particular result achieved, on the theory that of the two of them he, rather than the innocent victim, should bear the cost. (The trend in tort law has, in fact, been in the direction of expanding liability, though courts still talk in terms of legal or proximate cause).
- It is a general principle of criminal law that one is not criminally liable for how someone else acts, unless of course he directs or encourages or aids the other so to act. Thus, unlike the case with torts, an employer is not generally liable for the criminal acts of his employee even though the latter does them in furtherance of his employer’s business. In other words, with crimes defined in terms of harmful acts and bad thoughts, the defendant himself must personally engage in the acts and personally think the bad thoughts, unless, in the case of a statutory crime, the legislature has otherwise provided (see § 12.4).
- The fact that the victim of a crime was himself engaged in criminal activity is not, in and of itself, a defense. As explained in (whereby one party to a crime may not recover in a civil suit against another party thereto) has no place in the criminal law, for the purpose of the criminal law is the suppression of crime and the punishment of criminals. Criminal prosecutions are not brought for the protection and benefit of the victim, and thus the victim’s status as a criminal is not relevant.
- The common law crimes all require an act or omission in addition to a bad state of mind. A statute purporting to make it criminal simply to think bad thoughts would, in the United States, be held unconstitutional. And a statute that is worded vaguely on the question of whether an act (or omission), in addition to a state of mind, is required for criminal liability will be construed to require some act (or omission).
- There is yet another reason for taking a somewhat different view of causation in criminal law than in tort law. The requirement of causation in criminal law, more often than not, serves not to free defendants from all liability but rather to limit their punishment consistent with accepted theories of punishment (see § 1.5). It is generally accepted, for example, that these theories support the conclusion that when should not suffer the penalty for murder, nor should he be entirely free of criminal sanctions.
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Chapter 10. Solicitation and Attempt 131 results (showing 5 best matches)
- The modern doctrine of criminal attempts is said to have had its origin in the Court of Star Chamber, which had as one of its functions the correction of the manifest defects and shortcomings of the common law courts. The Chamber did deal with many cases of what we would today call attempts, and the word “attempt” was occasionally used loosely in describing these situations. However, the Court of Star Chamber never formulated a general theory of criminal attempts, although the principle was developed that an attempt to commit the offense of dueling was itself a distinct offense.
- In situations such as these, where the soliciting party would not be held guilty of the completed crime if it were committed as a result of the solicitation, the act of soliciting is itself not criminal. Or, to state it another way, it is a defense to a charge of solicitation to commit a crime that if the criminal object were achieved, the solicitor would not be guilty of a crime under the law defining the offense or the law concerning accomplice liability. Were the rule otherwise, the law of criminal solicitation would conflict with the policies expressed in the definitions of the substantive criminal law.
- Without regard to whether it is correct to say that solicitations are more dangerous than attempts, it is fair to conclude that the purposes of the criminal law (see § 1.5) are well served by inclusion of the crime of solicitation within the substantive criminal law. Providing punishment for solicitation aids in the prevention of the harm that would result should the inducements prove successful, and also aids in protecting the public from being exposed to inducements to commit or join in the commission of crimes. As is true of the law of attempts, the crime of solicitation (a) provides a basis for timely law enforcement intervention to prevent the intended crime, (b) permits the criminal justice process to deal with individuals who have indicated their dangerousness, and (c) avoids inequality of treatment based upon a fortuity (here, withholding of the desired response by the person solicited) beyond the control of the actor.
- Despite all of the disagreement between the commentators on the subject of impossibility, it is uniformly agreed that the result in was correct. “It may be true that the layman and perhaps Wilson himself would be very surprised to be told that what he had done did not amount to forgery or an attempt to commit forgery, but an immoral motive to inflict some injury on one’s fellows coupled with a misapprehension about the content of the criminal law are not good reasons for conviction.” The important point to keep in mind here is that one would not have to invent a doctrine called legal impossibility to dispose of the case. Rather, all that is involved is an application of the principle of legality; the defendant did not intend to do anything which had been made criminal, and what is not criminal may not be turned into a crime after the fact by characterizing his acts as an attempt. “The reason for not convicting him has nothing to do with the failure of the enterprise, but rather...
- rest upon the principle of legality, and it is “perfectly consistent with the legality principle to treat, as criminal attempts, those situations in which the actor intends to violate the statute and performs an act he thinks is in furtherance of that intent.”
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Table of Cross-References 4 results
Chapter 3. Constitutional Limits on Power to Create Crimes 157 results (showing 5 best matches)
- The United States Constitution forbids both the federal government and the states to deprive any person of life, liberty, or property without due process of law. Most state constitutions also contain a due process clause in identical or similar form. Although the term “due process” might appear to refer only to matters of procedure—requiring that certain procedures be followed and prohibiting others—it is also a substantive limitation on the powers of government. This is as true in the realm of criminal law as elsewhere; the constitutional requirement of due process looms large in criminal procedure, and is also important as a limitation on the manner and extent to which conduct may be defined as criminal in the substantive criminal law. We have already seen, for example, that due process requires that the Congress and the state legislatures be reasonably definite in declaring what conduct is criminal (see § 2.3).
- Courts dealing with case law, and legislatures with statute law, have frequently created presumptions in aid of one side of a legal dispute, both in the civil and criminal fields of law. Given the long-accepted notion that the prosecution in a criminal case must prove all elements of the charge and that it must prove its case beyond a reasonable doubt, the constitutional validity of these presumptions is most likely to be challenged on the criminal side of the law. Moreover, these challenges are most likely to be directed to presumptions created by the legislature, apparently because legislatures have been less restrictive than courts in creating rebuttable presumptions.
- The United States Constitution provides that no person “shall be compelled in any criminal case to be a witness against himself,” and this prohibition is applicable to both the federal government and the states. This privilege against self-incrimination has had the greatest significance in the area of criminal procedure; its most obvious application is to allow a defendant in a criminal case a free choice as to whether to take the stand in his defense, although more recently it has been held applicable in other procedural contexts, such as police interrogation. Even more recently, however, the privilege has been recognized as a limitation upon the permissible reach of the substantive criminal law.
- A state criminal law, otherwise within the police power of the state, may be invalid because a federal law on the subject has “preempted” (or “occupied”) the field to the exclusion of state law. “In the complex system of polity which prevails in this country, the powers of government may be divided into four classes:  Those which belong exclusively to the states;  Those which belong exclusively to the national government;  Those which may be exercised concurrently and independently by both;  Those which may be exercised by the states, but only until Congress shall see fit to act upon the subject.” The sometimes difficult problem in this area of constitutional law is whether to place a particular state criminal statute within category 3 or category 4, when both a federal and state criminal statute deal with the same subject matter. The problem would be easier to solve if Congress expressly provided that its statute was to be exclusive or not; but it seldom does so.
- This is not to say, of course, that the Supreme Court has withdrawn completely from its role of passing on the constitutionality of criminal statutes. Rather, the point is that the Court is now most reluctant to strike down statutes on a ground which, in effect, necessitates passing judgment on “the wisdom, need and propriety of laws that touch economic problems, business affairs or social conditions.” (While the Court upheld a sodomy statute in (1986) as a legitimate legislative judgment that “a majority of the electorate” deems the prosecuted conduct to be “immoral and unacceptable,” the dissent’s contention that “the fact that the governing majority in a State has traditionally viewed a particular practice as immoral is not a sufficient reason for upholding a law prohibiting the practice” was later embraced by a majority of the Court in ...the statute does not infringe upon a fundamental right, it is still constitutionally permissible for it to be grounded merely in “ethical...
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Chapter 11. Conspiracy 146 results (showing 5 best matches)
- As the Supreme Court emphasized in (1975), “the broadly formulated Wharton’s Rule does not rest on principles of double jeopardy,” but instead “has current vitality only as a judicial presumption, to be applied in the absence of legislative intent to the contrary.” The issue in was whether the rule applied so as to bar prosecution for conspiracy to violate a federal statute making it a crime for five or more persons to conduct, finance, manage, supervise, direct, or own a gambling business prohibited by state law. In answering in the negative, the Court noted that the classic Wharton’s Rule offenses listed above are those in which the consequences of the crime “rest on the parties themselves rather than society at large” and in which the agreement poses no distinct threat in the sense that it is likely to lead to “agreements to engage in a more general pattern of criminal conduct.” By contrast, the criminal objective of the conspiracy charge in the instant case both involved “the...
- However, even those who have voiced such criticisms have acknowledged that “the basic conspiracy principle has some place in modern criminal law.” The crime of conspiracy, which exists in all jurisdictions, serves two important but different functions: (1) as with solicitation and attempt, it is a means for preventive intervention against persons who manifest a disposition to criminality; and (2) it is also a means of striking against the special danger incident to group activity.
- The generally accepted common law definition of conspiracy is “a combination of two or more persons * * * to accomplish some criminal or unlawful purpose, or to accomplish some purpose, not in itself criminal or unlawful, by criminal or unlawful means.” Not every unlawful purpose is criminal and thus acts lawful when performed by an individual may become criminal when the object of an agreement by many to perform them. Although the common law rule is based on what is probably an incorrect reading of the early cases, it has survived except when changed by statute. Most states provide that the object of a criminal conspiracy must be some crime or some felony.
- approach has been sharply criticized by legal commentators, and understandably so. “RICO did not change conspiracy law; it merely made conducting the affairs of an enterprise in certain ways that Congress judges harmful a new substantive offense, separate from and in addition to the underlying illegal racketeering activity. The requirement remains that the activities making up a multiple criminal conspiracy must be connected, and the term ‘enterprise’ as applied by approach, another group “rejects the ideas espoused in and returns to traditional conspiracy principles in determining complicity in multi-defendant RICO prosecutions.”
- Notwithstanding such decisions, it is undoubtedly a fair conclusion that “most such provisions failed to provide a sufficiently definite standard of conduct to have any place in a penal code.” It is far better to limit the general conspiracy statute to objectives that are themselves criminal, as has been done in the most recent recodifications. To the extent that broader conspiracy statutes and common law conspiracy made it possible to reach group activity directed toward acts which one person could do with impunity because of the “frustrating technicalities” of certain areas of substantive criminal law, the solution is reform in those areas. And if it is true that there are some activities which should be criminal only if engaged in by groups, these should be specifically identified in special conspiracy provisions “no less precise than penal provisions generally.”
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Chapter 12. Parties; Liability for Conduct of Another 175 results (showing 5 best matches)
- In the area of the civil law we are quite used to vicarious responsibility (the doctrine of respondeat superior), although in criminal law it is a departure from the basic premise of criminal justice that crime requires personal fault (once again, ). Said one court: “The distinction between respondeat superior in tort law and its application to the criminal law is obvious. In tort law, the doctrine is employed for the purpose of settling the incidence of loss upon the party who can best bear such loss. But the criminal law is supported by totally different concepts. We impose penal treatment upon those who injure or menace social interest, partly in order to reform, partly to prevent the continuation of the anti-social activity and partly to deter others. If a defendant has personally lived up to the social standards of the criminal law and has not menaced or injured anyone, why impose penal treatment?” The answer, as given by the court itself, is that some crimes represent a use of...
- In other instances, it may be clear that the alleged accomplice intended to give aid or encouragement to another, but he will still not be liable as an accomplice. For example, assume that in the crimes of burglary and larceny if was unaware that he was aiding criminal conduct. (This is not to suggest, however, that an accomplice can escape liability by showing he did not intend to aid a crime in the sense that he was unaware that the criminal law covered the conduct of the person he aided. Such is not the case, for here as well the general principle that ignorance of the law is no excuse prevails; see § 4.6(d).)
- The common law did not impose criminal liability upon a faultless employer for the unauthorized criminal conduct of his employee except in two isolated instances: nuisance and libel. An employer was criminally liable for the criminal nuisances and libels of his employees though he did not know of or authorize the conduct and may have even forbidden it. In other areas of conduct constituting common law crimes the employer is not liable for what the employee did without his knowledge or authorization, and even the two exceptions of nuisance and libel have seldom received recognition in this country.
- An officer of a corporation is not personally liable for the crimes of the corporation or of corporate employees merely by virtue of the fact that he is an officer. Rather, the usual principles of accountability ordinarily apply, so that it must be shown that the criminal acts were done by his direction or with his permission. The question of who, if anyone, should be held personally liable for the strict-liability criminal omissions of the corporation has been particularly troublesome. Under existing law, the corporate officer generally escapes individual liability even though he is under an affirmative obligation to perform the duty in behalf of the corporation. The Model Penal Code § 2.07(6)(b) position is that the corporate agent having “primary responsibility for the discharge of the duty” imposed by law on the corporation is accountable for “a reckless omission to perform the required act to the same extent as if the duty were imposed by law directly upon himself.” A few of...
- Enterprise officers and employees are not ordinarily held personally liable for crimes of the enterprise or of their subordinates except under usual principles of accountability. If the individual personally engaged in the criminal conduct or directed or permitted its commission, it is no defense that the offense was performed on behalf of the enterprise.
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Title Page 2 results
Table of Contents 58 results (showing 5 best matches)
Chapter 9. Justification 122 results (showing 5 best matches)
- The defense of necessity applies when the defendant is faced with this choice of two evils: he may either do something that violates the literal terms of the criminal law and thus produce some harm, or not do it and so produce a greater harm. If, however, there is open to him a third alternative, which will cause less harm than will be caused by violating the law, he is not justified in violating the law. So in the case of the criminal statute that forbade taking intoxicating liquor to church, wherein the defendant took whiskey there for medicinal purposes, the court, rejecting his defense of necessity, pointed out the alternative of staying at home or of bringing some other kind of medicine. A starving man is not justified in stealing food from a grocery if he can obtain food by presenting himself at a soup kitchen. A prisoner subjected to inhumane treatment by his jailors is not justified in breaking prison if he can bring about an improvement in conditions by other means. One man
- The question of how far this privilege extends, however, is most starkly presented as to undercover law enforcement activity by police and their agents. This undercover activity may include dealing in contraband substances or false representations, and often involves providing inducement to others to engage in criminal activity. As to the latter, the inducements in some circumstances will constitute a defense, called entrapment (see § 8.8), for the person induced, and the common assumption is that when this is the case the encouraging police may be convicted of the crime in question. Thus, it has been held that if game wardens, posing as fur buyers, induce some boys who would not otherwise have done so to engage in forbidden beaver trapping, the boys are not to be punished, but the game wardens are guilty of illegal trapping. It is doubtful, however, whether it makes sense to conclude that the officer is guilty in any instance in which the “target” was entrapped. Why should the...
- When the necessity defense applies, it justifies the defendant’s conduct in violating the literal language of the criminal law and so the defendant is not guilty of the crime in question. Where the defense does not apply, and yet the defendant did act with the good motive of preserving some value, his good motive, though not a defense, may be considered in mitigation of punishment for the crime committed (see § 4.3).
- One may thus be justified by necessity in violating the law and causing harm in order to avoid a greater harm by complying with the law. Perhaps he has not only a power to violate the law but a duty to do so (much as a trustee, in appropriate circumstances, has a duty, and not simply a power, to deviate from the terms of a trust). If but destroying the city, he ought to be criminally liable for murder of the city population if he does nothing. The difficulty, of course, lies in the fact that only in limited circumstances has the law imposed an affirmative duty to act as a basis of criminal liability (see § 5.2).
- The matter is often expressed in terms of choice of evils: When the pressure of circumstances presents one with a choice of evils, the law prefers that he avoid the greater evil by bringing about the lesser evil. Thus the evil involved in violating the terms of the criminal law (taking another’s property; even taking another’s life) may be less than that which would result from literal compliance with the law (starving to death; two lives lost).
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Chapter 6. Insanity Defense 118 results (showing 5 best matches)
- There exist in the criminal law a number of substantive defenses to a charge of criminal conduct (see Chs. 8 & 9). These defenses are usually defined in terms of unusual circumstances that, when raised by the defendant, evidence a situation in which the purposes of the criminal law would not be served by conviction of the defendant. For example, take the defense of self-defense (see § 9.4). For is murder, and the various purposes of the criminal law (see § 1.5) are served by convicting and punishing from killing him, then the defense of self-defense comes into play because the purposes of the criminal law are better served by ’s acquittal; “authorizing the potential victim to kill his assailant constitutes a sanction which may be assumed to fulfill punitive, restraining, and deterrent functions in the service of the community’s objective to safeguard human life.”
- In the main, however, the A.L.I. test has drawn praise from the commentators. As to the objections summarized above, it has been noted that “the experience has taken much of the bite from such criticisms. It is now apparent that a precise definition of insanity is impossible, that the effort to eliminate functional definitions deprives the jury of an essential concreteness of statement and that it is entirely sensible to leave ‘mental disease’ undefined, at least so long as it is modified by a statement of minimal conditions for being held to account under a system of criminal law.” The Model Penal Code formulation has rightly been praised as achieving the two important objectives of a test of responsibility: (1) giving expression to an intelligible principle; and (2) fully disclosing that principle to the jury.
- “[E]liminating the insanity defense would remove from the criminal law and the public conscience the vitally important distinction between illness and evil, or would tuck it away in an administrative process.” So the argument goes, it is extremely important that we retain the concept of responsibility in the criminal law and “that ‘blame’ be retained as a spur to individual responsibility.” Moreover, we would rebel at the notion of labeling as criminal those who are generally conceded not to be blameworthy.
- In the unlikely event that the defendant knew that his act was morally wrong but did not know that it was illegal, then it would seem that the test for insanity has not been met. In this instance, as is true generally, “knowledge of the law is presumed.” The concern is instead with the case in which the defendant knew that his acts were contrary to law but yet believed that they were morally correct. Some have asserted that this is also an unlikely circumstance, given the fact that “the vast majority of cases in which insanity is pleaded as a defense * * * involve acts which are universally regarded as morally wicked as well as illegal.” But whether this is so will depend upon how another ambiguity is resolved—that is, “whether ‘moral wrong’ is to be judged by the personal standards of the accused or by his awareness that society views the act as wrong.” Society’s moral judgment will usually be identical with the legal standard, and thus interpretation of “wrong” in the
- The word “insanity” is also used in different criminal law settings, and once again the meaning of the word differs depending upon the circumstances. There is, for instance, insanity as a defense to a criminal prosecution, which is the kind of insanity we are principally concerned with in this book. Although such insanity may be defined in one of several ways, depending upon the law of the jurisdiction, none of those definitions will suffice for other uses of the word “insanity” in the criminal process, such as (1) to determine who is incompetent to stand trial (see § 7.1(a)); (2) to determine who is incompetent to submit to execution (see § 7.1(c)); (3) to determine who is to be committed following a successful insanity defense (see § 7.4(a)); or (4) to determine who is ineligible for release following such commitment (see § 7.4(c)).
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Chapter 14. Manslaughter; Suicide Assistance 98 results (showing 5 best matches)
- It has already been noted that, for manslaughter liability of the criminal-negligence sort, perhaps one is not liable for an unintended death which happens to a willing participant in the defendant’s criminally negligent conduct. If this limitation upon liability is valid as to the criminal negligence sort of manslaughter, it is, on principle, equally so as to the unlawful-act-causing-foreseeable-death type of manslaughter; if it is unjust to punish a person for the death of his willingly participating colleague in the one situation, it is equally unjust to do so in the other.
- With manslaughter, as with other crimes defined in terms of cause and result, the defendant’s conduct (whether affirmative act, or omission to act when there is a duty to act) must be the “legal cause” of the death. As treated more fully in that part of this book which deals with the basic principle of causation in criminal law (see § 5.4), this means, in connection with crimes based upon some form of negligence, not only (1) that the defendant’s negligent conduct must be the “cause in fact” of the victim’s death; but also (2) that the victim be the person foreseeably endangered, or a member of the class of persons foreseeably endangered, by the defendant’s negligent conduct; (3) that the victim be harmed in a manner which is foreseeable; and (4) that the type and degree of harm suffered by the victim be foreseeable. In this connection, “foreseeable” means something less than probable or likely but more than possible; perhaps it is best described as something that, as one looks back...
- Centuries ago it was stated to be the law that an unintended homicide in the commission of an unlawful act constituted criminal homicide; and later, when criminal homicide was subdivided into the separate crimes of murder and manslaughter, this type of criminal homicide was assigned to the (involuntary) manslaughter
- There remains the question of whether an innocent-minded violation can be an “unlawful act,” as where the criminal statute that punishes certain conduct is of the strict-liability sort. Thus suppose it is a misdemeanor to drive at night without lights or at any time without brakes; suddenly, without any fault on the defendant’s part, the lights go out or the brakes fail; and, before the car can be brought to a stop, a pedestrian or motorist is struck and killed. On principle, this sort of violation should not aid in any way in establishing the defendant’s guilt of manslaughter, as some cases have recognized. On the other hand, for the defendant’s conduct to be “unlawful” for purposes of manslaughter liability it is not necessary that he know that some law forbids it (in the case of an act) or commands it (in the case of an omission); in other words, there is no requirement of a specific intent to violate the law which makes his conduct unlawful.
- Doubtless it is better policy not to make such conduct criminal. Certainly one bent upon a successful suicide will not be deterred by thoughts of possible punishment. Moreover, “intrusion of the criminal law into such tragedies is an abuse. There is a certain moral extravagance in imposing criminal punishment on a person who has sought his own self-destruction * * * and who more properly requires medical or psychiatric attention.”
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Chapter 13. Murder 135 results (showing 5 best matches)
- In dealing with the subject of causation in the criminal law, and in particular the problem of the bad aim, we noted that where . On the same principle, if
- For additional analysis of the above topics and citations to authorities supporting their discussion in this Book, consult the author’s 3-volume
- “knowledge” is used to cover instances in which the actor knows that the harmful result is substantially certain to occur (see § 4.2(b)). In a criminal code utilizing such definitions, what is here called intent-to-kill murder may be described as intentionally or knowingly killing another. Apart from the question of when capital punishment should be permitted, there is “no basis in principle for separating purposeful from knowing homicide.” Many of the American codes do not distinguish between them, although a majority do appear to require intent rather than knowledge or, at least, to classify intentional and knowing killings differently.
- Although the kind of statute just discussed does not undertake to define the crime of murder it thus divides into degrees (“murder” committed in certain ways is first degree murder; all other “murder” is second degree murder), most murder statutes in the recent criminal codes define murder and its various degrees in terms of “killing” or “causing death” under certain described conditions. Such statutes often make changes in the scope of the common law crime of murder; and, not fitting into the pattern of the statute above described, the particular statute must be consulted as to the degree of murder as well as referred to as to the scope of murder.
- Although most jurisdictions accept the felony-murder doctrine, generally with one or more of the limitations discussed above, it is arguable that there should be no such separate category of murder. The rationale of the doctrine is that one who commits a felony is a bad person with a bad state of mind, and he has caused a bad result, so that we should not worry too much about the fact that the fatal result he accomplished was quite different and a good deal worse than the bad result he intended. Yet it is a general principle of criminal law that one is not ordinarily criminally liable for bad results which differ greatly from intended results (see § 5.3). Nor, as suggested earlier (see § 13.5(e)), can the felony-murder doctrine be justified as the approximate equivalent of depraved-heart murder, where the defendant’s conduct carries with it a very high risk of death (see § 13.4). What statistics are available demonstrate that accidental killings do not occur disproportionately often...
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Chapter 16. Theft 137 results (showing 5 best matches)
- In the light of the basic criminal-law principle that the mental and physical elements of the crime must coincide (see § 5.3), the knowledge of the falsity of the statement and the intent to defraud must coincide with the obtaining of the title to the property. One who states what he believes to be true but which he later—before the victim, in reliance on the statement, passes title—learns to be false, has a duty to correct the misapprehension which his innocent statement has engendered, so that, if he takes title without disclosing the truth, he is guilty of false pretenses (so long as the other elements of the crime are present) (see § 16.7(b)(3)).
- For additional analysis of the above topics and citations to authorities supporting their discussion in this Book, consult the author’s 3-volume
- It is quite possible to view a false statement of intention—for example, a false promise (one that the promisor, at the time he makes his promise, intends not to keep)—as a misrepresentation of existing fact, for he is falsely representing his present state of mind. And a clever criminal can defraud his victim about as well with a false promise as with other types of false statement of fact. Nevertheless, the traditional view was that false promises will not suffice for false pretenses. The argument supporting this position that one cannot ever be sure whether a borrower has made a false promise or whether he has simply later changed his mind about the use of borrowed money; and that therefore there is a grave danger that honest businessmen who do not pay their debts will go to jail—has been countered by the argument that the mental state involved in a false promise is as easily discoverable as many other states of mind recognized by the criminal and civil law, and by studies...
- We have already suggested that many of the modern American difficulties in the area of misappropriation of property would have been avoided if in the beginning the English Parliament, instead of creating the new statutory crimes of embezzlement and false pretenses to plug the loopholes discovered in the law of larceny, had by statute simply extended larceny to cover the new situations which needed to be covered. American states generally followed the English lead, recognizing the three separate crimes. But in recent years, the great majority of states (usually as a part of enacting a new criminal code) have abolished these three separate crimes in favor of a single crime, usually called “theft.”
- At this point in the chronology of the law of theft, about the end of the 18th century, a combination of circumstances caused the initiative in the further development of the criminal law to pass from the courts to the legislature. Among these circumstances were the general advance in the prestige and power of parliament and the conversion of the idea of “natural law” from an instrument for judicial defiance of monarchy to a restraining philosophy envisioning judges as interpreters of immemorial custom rather than framers of policy. Perhaps the most direct influence of all was a revulsion against capital punishment, which was the penalty for all theft offenses except petty larceny during much of the 18th century. The severity of this penalty not only made the judges reluctant to enlarge felonious larceny, but also may account for the host of artificial limitations that they engrafted on the offense, e.g., the exclusion of growing crops, fixtures, deeds, and dogs.
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Chapter 15. Rape 114 results (showing 5 best matches)
- While this book is about substantive criminal law and not criminal procedure or evidence, sometimes consideration of the latter cannot be ignored. Such is the case with respect to the crime of rape, which traditionally has been attended by unique and especially demanding procedural and evidentiary rules. They are examined in Section 15.5, along with the matter of punishment.
- For additional analysis of the above topics and citations to authorities supporting their discussion in this Book, consult the author’s 3-volume
- Certainly one basic concern by many feminists and others seeking law reform in this area was that distinctions drawn in the substantive and procedural law regarding the crime of rape reflected perspectives about the crime that had no contemporary legitimacy. Some of these distinctions, most especially the marital exemption rule, reflected the ancient notion that rape was a property crime and that violation was of the property rights of the woman’s father or husband. Another take on the situation was that many rape doctrines reflected not so much a special hostility toward women by the law, but rather the law’s hostility toward those seeking to be excused from criminal liability, which the rape complainant ordinarily was back when rape resided alongside adultery and fornication as criminal offenses. But that, of course, is another circumstance lacking contemporary relevance given the virtual disappearance of the latter offenses from the law. A variety of more modern justifications...
- contended that traditional rape law negatively affected both victims of rape and the outcome of rape cases. They charged that the rules of evidence unique to rape caused pervasive skepticism of rape victims’ claims and allowed criminal justice officials to use legally irrelevant assessments of the victim’s character, behavior, and relationship with the defendant in processing and disposing of rape cases. Critics further suggested that traditional rape law was at least partially responsible for the unwillingness of victims to report rape, as well as low rates of arrest, prosecution, and conviction for rape. They argued, in short, that traditional rape law made it “easy to commit rape and get away with it.”
- In support of this provision, it was argued that it (i) guards against the fabrication of rape complaints, as where “unwanted pregnancy or bitterness at a relationship gone sour might convert a willing participant in sexual relations into a vindictive complainant,” and (ii) “limits the opportunity for blackmailing another by threatening to bring a criminal charge of sexual aggression.” The Code approach was severely criticized for imposing “an initial statute of limitations of unique and unheard-of brevity in the criminal law, regardless of the circumstances or justifications for delay in the particular case,” thus failing to take account of “the woman who legitimately worries about the receptiveness of police, prosecutors, juries and even friends or employers to a report that she was raped” and thus delays reporting the crime. Notably, all six states have since repealed their provisions making prompt complaint a prerequisite to a rape prosecution.
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Chapter 7. Insanity—Procedural Considerations 120 results (showing 5 best matches)
- Finally, note must be taken of the recognition in that the petitioner had a “substantial” claim that the charges against him should be dismissed. The Court did not reach this claim, but did take note of the bases upon which it could be grounded: “the Sixth–Fourteenth Amendment right to a speedy trial, or the denial of due process inherent in holding pending criminal charges indefinitely over the head of one who will never have a chance to prove his innocence.” Of course, it is also possible that dismissal of charges following a substantial period of incompetency will be permissible under state law even if not constitutionally compelled. In such circumstances, there remains the troublesome question of whether the charges should be dismissed with or without prejudice (that is, with or without a bar to subsequent reinstatement). But because of the concern “that the dismissal of serious criminal charges against an incompetent defendant who may regain competency to stand trial in two or...
- The notion that a defendant who is incompetent may not be tried, which is a requirement of due process, has several reasons underlying it. For one, it ensures the accuracy of the proceedings, as an incompetent defendant is not in a position to exercise several rights (e.g., to testify in his own behalf, to confront opposing witnesses) that are intended to accomplish that end. Second, it ensures the fairness of the proceedings, as it avoids the situation of a trial in which the defendant is unable to make certain basic decisions concerning the course of his defense. Third, it aids in maintaining the dignity of the proceedings, for an incompetent defendant is likely to conduct himself in the courtroom in a manner that would disrupt the trial. Finally, under our theory of the criminal law it is important that the defendant know why he is being punished, a comprehension which is greatly dependent upon his understanding what occurs at trial.
- The Court in turned first to the question of whether a D.C. verdict of not guilty by reason of insanity, necessitating both (i) a finding beyond a reasonable doubt that defendant committed an act that constitutes a criminal offense and (ii) a finding by a preponderance of the evidence that defendant committed the act because of mental illness, “is sufficiently probative of mental illness and dangerousness to justify commitment.” The Court declared that the first of the above two findings “certainly indicates dangerousness” and is generally “at least as persuasive as any predictions about dangerousness that might be made in a civil-commitment proceeding.” As for defendant’s claim that this was not so in the present case because of the nature of the crime charged, the Court responded that dangerousness was not limited to acts of violence. The Court next concluded “that the insanity acquittal supports an inference of continuing mental illness” so as to justify automatic commitment. “...
- An individual who is committed following his acquittal on grounds of insanity may, nonetheless, be improperly characterized as in the “criminal insane” category and be dealt with in essentially the same way as the convicted defendant who becomes insane while serving his sentence and the charged defendant who is found incompetent to stand trial. One survey showed that he would be confined in a separate ward or unit of the state mental hospital in twenty-seven states, unsegregated in the hospital in five states, held in a ward or unit of the penal institution in two states, confined in either the penal institution or state hospital in three states, and committed to a separate institution for the criminally insane in nine states.
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Index 92 results (showing 5 best matches)
Summary of Contents 8 results (showing 5 best matches)
West Academic Publishing’s Law School Advisory Board 10 results (showing 5 best matches)
- Distinguished University Professor, Frank R. Strong Chair in LawMichael E. Moritz College of Law, The Ohio State University
- Professor of Law Emeritus, University of San Diego Professor of Law Emeritus, University of Michigan
- Professor of Law, Chancellor and Dean Emeritus, University of California, Hastings College of the Law
- Professor of Law, Yale Law School
- Professor of Law, Pepperdine University Professor of Law Emeritus, University of California, Los Angeles
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Table of Cases 4 results
- Bowman, In re, 94 Wash.2d 407, 617 P.2d 731 (1980), § 13.1(d)
- Gault, In re, 387 U.S. 1, 87 S.Ct. 1428, 18 L.Ed.2d 527 (1967), § 1.7(a)
- M.T.S., State in Interest of, 129 N.J. 422, 609 A.2d 1266 (1992), § 15.3(a)
- Winship, In re, 397 U.S. 358, 90 S.Ct. 1068, 25 L.Ed.2d 368 (1970), §§ 1.8(b), 7.3(a)
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Copyright Page 2 results
- The publisher is not engaged in rendering legal or other professional advice, and this publication is not a substitute for the advice of an attorney. If you require legal or other expert advice, you should seek the services of a competent attorney or other professional.
- Printed in the United States of America
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- Publication Date: February 17th, 2017
- ISBN: 9781683285359
- Subject: Criminal Law
- Series: Concise Hornbook Series
- Type: Hornbook Treatises
- Description: Expertly written to provide comprehensive coverage of the most crucial issues in a course, the Concise Hornbook Series features concise analyses by prominent scholars of basic areas of the law. The Series focuses on core principles and concepts fundamental to understanding the subject matter. LaFave's Principles of Criminal Law provides detailed discussion on the topics of responsibility, justification and excuse, inchoate crimes and accomplice liability. The book also gives attention to subjects such as causation, insanity and conspiracy.