Criminal Law
Author:
Ohlin, Jens David
Edition:
7th
Copyright Date:
2023
101 chapters
have results for criminal law
Chapter 1 Introduction and General Considerations Part 7 96 results (showing 5 best matches)
- The criminal law and the civil law have much in common. Criminal statutes have played a part in creating civil liability, while civil statutes have been important in the development of the substantive criminal law. There are, however, a number of differences between criminal law and civil law because of their different functions.
- The subject of criminal procedure is not dealt with in this Book. It is appropriate, however, to consider at this point some of the basic characteristics of the criminal process to understand the significance of the substantive criminal law in terms of day-to-day criminal justice administration. Without such an understanding, the discussion of the substantive criminal law might prompt the inappropriate conclusion that the law of crimes is extremely severe and technical. While it is true that many of the nice technicalities of the substantive criminal law have continued to exist long after the reasons for their existence have disappeared, many of these technicalities (and the severity of them) are overcome through law and practice in the realm of criminal procedure.
- 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 that 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 which 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 final basic premise of the criminal law is that conduct is not criminal unless forbidden by law which gives 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 the rule of strict construction of criminal statutes, and the trend away from open-ended common law crimes.
- On the other hand, civil statutes have to some extent been important in the development of the substantive criminal law. Thus, the common law rule that one could not be guilty of larceny for taking a spouse’s property (since spouses were legally one individual) has generally been done away with by judicial decision because Married Women’s Property Acts (which do not speak of criminal liability at all) have made the wife, in property matters at least, an individual separate from her husband. The common law presumption of coercion, where a wife commits what would otherwise be a crime in her husband’s presence, has generally fallen the same way, although the civil statutes freeing the wife from her husband’s domination do not themselves directly deal with the matter of coercion as a criminal defense. The criminal law is slower to borrow from civil statutes than civil law is to borrow from criminal statutes, at least in imposing criminal liability where none existed before. This is...
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Chapter 4 Criminal Jurisdiction Part 4 98 results (showing 5 best matches)
- The word “jurisdiction” is used in two quite different senses in the field of criminal law: (1) the power to create criminal law; and (2) the power to enforce the criminal law thus created. The two meanings sometimes coincide: thus, a state or nation which has no power to make certain conduct criminal has no power to enforce such conduct. But the power to create crimes is not always co-extensive with the power to enforce: thus, a state or nation which has the power to enact a law making certain conduct criminal may lack the power in a particular situation to enforce that criminal law.
- The second category of federal criminal jurisdiction in Indian country is that created by what is usually referred to as the General Crimes Act, which provides: “Except as otherwise expressly provided by law, the general laws of the United States as to the punishment of offenses committed in any place within the sole and exclusive jurisdiction of the United States, except the District of Columbia, shall extend to the Indian country.” The critical words here are “sole and exclusive jurisdiction,” for the reference is not to the federal criminal law of general applicability discussed above, but rather to that federal criminal law applicable in certain places where federal law is exclusive and state law does not apply.
- Notwithstanding the limited character of this federal jurisdiction, the scope of federal substantive criminal law of this variety has been growing steadily since the nation was founded, so that at the present time there is a substantial amount of such federal criminal law. Federal criminal law of this type is employed, according to one in three different ways. First, it is used to punish anti-social conduct primarily injurious to the federal government. In this classification fall crimes like treason, espionage, bribery of federal officers, tampering with federal juries, contempt of federal courts, failure to pay federal taxes, thefts from national banks, thefts of federal property, and murder of federal law enforcement officers.
- Federal law of this variety is of two types. Firstly, Congress has from time to time enacted a specific criminal provision applicable only in such places, as is the case as to a federal murder statute confined to “the special maritime and territorial jurisdiction of the United States.” to ensure that a comprehensive body of criminal law was applicable to places of exclusive federal jurisdiction such as federal forts and arsenals, Congress adopted the Assimilative Crimes Act, which takes the criminal law applicable elsewhere in the state where such a place is located and makes violation of same a federal offense (although the crime definitions and penalties are those provided by state law). So, what the General Crimes Act does (subject to limitations discussed below) is to make applicable in Indian country most of the criminal law of the state where the Indian country is located, plus those federal crimes applicable where federal jurisdiction is exclusive, as with the murder statute...
- Public Law 280 also deals with jurisdiction, and as to it the Supreme Court has held that the law does not confer general legislative jurisdiction upon the states, for tribal governments could be undermined or destroyed if “subordinated to the full panoply of civil regulatory powers.” This principle was later applied to the criminal law area in where California sought to enforce its criminal laws prohibiting bingo games against bingo and poker games on the reservation. Whether this could be done, the Court decided, depended upon whether the law being enforced was properly characterized as “criminal laws” under Public Law 280 or “regulations” under its earlier no-jurisdiction ruling. As to this, the
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Preface 3 results
- In crafting the revisions and updates, I have attempted to remain faithful to the overriding aim of this work, which is to provide students of criminal law with a concise and readable treatise to supplement other required course materials, such as casebooks. However, the aim of the treatise is not to provide comprehensive and exhaustive coverage of every penal offense and every criminal law doctrine, as a practicing criminal attorney might expect and demand. Indeed, the type of offenses that are best discussed to obtain a clear understanding of the criminal law, as a field, are not necessarily the same criminal law offenses that make up the bread and butter of a practicing criminal attorney’s book of business. The student of criminal law focuses on murder, manslaughter, rape—and possibly theft, robbery, and burglary if time permits—because these are the crimes where the building blocks of the grammar of criminal law are most exposed: mental states, act requirements, modes of...
- As always, I’m grateful for wisdom and support from my fellow criminal law scholars across the nation and the world, my colleagues at Cornell Law School, my students past and present, and my family.
- In this Seventh Edition, I have endeavored to take into account all developments in the field of criminal law as of January 2023. Some of the recent changes are relatively minor, while others, such as California’s repeal of the felony murder rule, are comparatively significant. But in either case, the DNA of this new volume remains essentially unaltered: the brilliant vision executed primarily by Professor LaFave.
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Chapter 6 Acts; Concurrence and Consequences 37 results (showing 5 best matches)
- For discussion of criminal liability based on omission to act, see J. Hall, General Principles of Criminal Law 190–205, 208–11 (2d ed. 1960);
- supra, and O. Holmes, The Common Law 54 (1881) (a bodily movement, to be an act, “must be willed”); Cook, supra note 4
- For a discussion of the requirement of an act or omission for criminal liability, see M. Moore, Act and Crime: The Philosophy of Action and Its Implications for Criminal Law (1993);
- Id. at 505. See also G. Williams, Criminal Law: The General Part § 11 (2d ed. 1961).
- Criminal Law 605 (3d ed. 1982).
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Chapter 2 Sources and General Limitations 39 results (showing 5 best matches)
- 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; 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. 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 controversial...
- Of course, on the civil side of the law we are used to the idea that the common law can grow to meet new situations and to accommodate changing customs and sentiments, but there are difficulties on the criminal side, bound up with the notion, discussed more fully below, that the public is entitled to fair warning of what conduct is criminal.
- The principal argument against common law crimes is expressed in the maxim the basis of which is that the criminal law ought to be certain, so that people can know in advance whether the conduct on which they are about to embark is criminal or not. “Although it is not likely that a criminal will carefully consider the text of the law before he murders or steals, it is reasonable that a fair warning should be given to the world in language that the common world will understand, of what the law intends to do if a certain line is passed. To make the warning fair, so far as possible the line should be clear.” To require one who intends to tread close to the line of criminality (yet remaining on the side of legality) to study the criminal statutes (and the cases construing those statutes) may be fair enough; but to make him read the English and American cases on common law crimes and speculate on their scope is worse; and it is even more unfair (so the argument runs) to make him guess...
- Thus, it was that most of the states in the beginning had common law crimes. The states soon began to enact criminal statutes; and in the nineteenth century some states undertook to enact comprehensive statutory criminal codes, covering most of the common law crimes as well as new crimes unknown to the common law. Some of these codes expressly provided that there should be no crimes except as found in the code (or, if the code was not meant to be completely comprehensive, except as found in the code or some other statute). Other states without such an express provision held that the comprehensive code by implication abolished common law crimes. In other states common law crimes were retained either by an express “reception statute” In those states, of course, a particular common law crime might be found to be abrogated by virtue of a statute either conflicting with that common law crime or dealing with the entire subject matter of that common law crime. ...comprehensive new criminal...
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Chapter 4 Criminal Jurisdiction Part 2 35 results (showing 5 best matches)
- This is to be distinguished from “the spectacular rise in international criminal law and its claims to supra-national jurisdiction,” regarding which “the United States has consistently affirmed the prescriptive jurisdiction of international criminal law while refusing to allow its own citizens to be subject to supra-national enforcement or judicial jurisdiction for alleged violations of international criminal law.” Wolitz, Criminal Jurisdiction and the Nation-State: Toward Bounded Pluralism, 91 Or.L.Rev. 725, 769 (2013).
- Penal Legislation, 64 Mich.L.Rev. 609 (1966); Leflar, Choice of Law in Criminal Cases, 25 Case W.Res.L.Rev. 44 (1974);
- Of such a “universal” or “cosmopolitan” theory of jurisdiction, adopted as to some situations by some other nations, see Arnell, International Criminal Law and Universal Jurisdiction, 11 Int’l Legal Persp. 53 (1999); Bassiouni, Universal Jurisdiction for Intentional Crimes: Historical Perspectives and Contemporary Practice, 42 Va.J.Int’l L. 81 (2001); Bradley, Universal Jurisdiction and U.S. Law, 2001 U.Chi.Legal F. 323; Brown, The Evolving Concept of Universal Jurisdiction, 35 N.Engl.L.Rev. 383 (2001); Broomhall, Toward the Development of an Effective System of Universal Jurisdiction for Crimes Under International Law, 35 New Engl.L.Rev. 399 (2001); Butler, The Doctrine of Universal Jurisdiction: A Review of the Literature, 11 Crim.L.F. 353 (2000); Colangelo, The New Universal Jurisdiction: In Absentia Signaling Over Clearly Defined Crimes, 36 Geo.J. Int’l L. 537 (2005); Coombes, Universal Jurisdiction: A Means to End Impunity or a Threat to Friendly International Relations?, 43...Law
- Schmitt, Closing the Gap in Criminal Jurisdiction over Civilians Accompanying the Armed Forces Abroad—A First Person Account of the Creation of the Military Extraterritorial Jurisdiction Act of 2000, 51 Cath.U.L.Rev. 55 (2001)
- “International law has increasingly recognized the right of a state to exercise jurisdiction on the basis of domicile or residence, rather than a nationality.”
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Chapter 1 Introduction and General Considerations 49 results (showing 5 best matches)
- What difference does it make whether a particular crime is labeled a felony or misdemeanor? It may be important to make the distinction for purposes either (1) of the substantive criminal law, or (2) of criminal procedure, or (3) of legal matters entirely outside the field of criminal law.
- 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)
- It has been said that criminal contempt is a crime, What these conflicting expressions seem to signify is that, on the substantive law side, criminal contempt is very much like an ordinary crime; but procedurally may be treated quite differently. Although it has been held that criminal contempt is a common law crime inherited from England and hence a crime, though no statute makes it so, in those American jurisdictions which recognize common law crimes, yet even in those jurisdictions which do not recognize common law crimes, a power to punish for contempt exists. In some jurisdictions, however, the legislature has enacted an ordinary statutory crime called contempt, sometimes varying the common law elements thereof.
- In the field of substantive criminal law, the principal use of the distinction is with respect to the crimes of manslaughter and battery. One whose criminal conduct he is generally not as readily liable for manslaughter (or battery)—the principal view being that he is liable only if death (or injury) is the foreseeable consequence of his criminal act. Courts faced with the statutory interpretation problem of whether a particular crime may be committed without any sort of bad intent (and, more specifically, whether ignorance of the law is an excuse The distinction also is sometimes used in criminal (or civil) procedure, as under a rule of evidence that a witness may be impeached on account of his prior conviction of a misdemeanor It is sometimes used in areas of the law outside the field of criminal law and procedure.
- So far as the substantive criminal law is concerned, there are several crimes whose elements are defined, or whose punishment is stated, with reference to felonies as distinguished from misdemeanors. Burglary is defined at common law as breaking and entering another’s dwelling house at night with intent to commit a felony (a misdemeanor will not do) therein. There exists a common law crime of compounding a felony, which is committed by one who for a consideration agrees not to prosecute for, or agrees to keep quiet about, a felony (but not a misdemeanor) he knows has been committed. At common law parties involved in felonies are divided into principals and accessories, from which fact various consequences followed, whereas with misdemeanors all parties are considered principals. The punishment clauses of criminal statutes are not infrequently worded in terms of felony or misdemeanor; thus a criminal conspiracy (or attempt) statute may provide for one punishment in the case of a...
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Chapter 4 Criminal Jurisdiction 53 results (showing 5 best matches)
- For criticism of the increasing federalization of criminal law, see Task Force on the Federalization of Criminal Law, ABA Criminal Justice Section, The Federalization of Criminal Law (1998);
- Mostly found in Title 18 of U.S.C.A., but also found in other Titles. For a short history of the expansion of the federal criminal law, see Schwartz, Federal Criminal Jurisdiction and Prosecutors’ Discretion, 13 Law & Contemp.Prob. 64 (1948), pointing out that this growth has quite naturally accompanied the expansion of the role of the United States government in the regulation of various aspects of public welfare—interstate transportation, communication, wholesomeness of food, marketing of securities, wages and hours of labor, wartime price regulation, etc. Almost all such federal regulation is enforced by criminal penalties. See also the consultant’s report of Professor Norman Abrams, in 1 National Comm’n on Reform of Federal Criminal Laws, Working Papers 33 (1970).
- (federal criminal antitrust jurisdiction here, although in this price-fixing case all of the alleged violations by the Japanese company occurred within Japanese territory, as there were substantial and intended effects within the United States). For further discussion of such extraterritorial criminal enforcement, see
- And, indeed, jurisdiction in the other sense—power to enforce criminal law.
- For a clear analysis of the problem of jurisdiction of nations to prescribe and enforce rules of conduct (including but not limited to criminal rules), see
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Chapter 11 Solicitation and Attempt Part 3 20 results (showing 5 best matches)
- Only a representative listing is possible here. See J. Hall, General Principles of Criminal Law 586–99 (2d ed. 1960); G. Williams, Criminal Law: The General Part 633–53 (2d ed. 1961); Deusner, The Doctrine of Impossibility in the Law of Criminal Attempts, 4 Crim.L.Bull. 398 (1968); Donnelly, Possibility, Impossibility and Extraordinariness in Attempts, 23 Can.J.L. & Juris. 47 (2010); Elkind, Impossibility in Criminal Attempts: A Theorist’s Headache, 54 Va.L.Rev. 20 (1968); Enker, Impossibility in Criminal Attempts—Legality and the Legal Process, 53 Minn.L.Rev. 665 (1969); George P. Fletcher, Constructing a Theory of Impossible Attempts, 5 Crim. Just. Ethics 53 (1986);
- Thus, we demand that in order for a defendant to be guilty of a criminal attempt, the objective acts performed, without any reliance on the accompanying mark the defendant’s conduct as criminal in nature. The acts should be unique rather than so commonplace that they are engaged in by persons not in violation of the law.
- E.g., 2 J. Stephen, A History of the Criminal Law of England 226–27 (1883); Perkins, Criminal Attempt and Related Problems, 2 UCLA L.Rev. 319, 354 (1955).
- 2 J. Stephen, A History of the Criminal Law of England 226 (1883). Model Penal Code § 5.01(4) makes renunciation of criminal purpose an affirmative defense, so the defendant must come forward first with evidence in support of the defense.
- Many attempt statutes use the Model Penal Code language. Some state in addition or instead that neither factual nor legal impossibility is a defense, that impossibility because of a “misapprehension of circumstances” is no defense, or that there is no defense that the circumstances were such that commission of the crime was not possible. See also National Comm’n on Reform of Federal Criminal Laws, Final Report—Proposed New Federal Criminal Code § 1001(1) (1971).
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Chapter 2 Sources and General Limitations Part 3 34 results (showing 5 best matches)
- The states which have received, into their criminal law, common law crimes have also adopted those English criminal statutes in aid of the common law which were 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.
- Similarly, if a state has enacted a criminal statute following the language of a section of the original proposal for recodification of the federal criminal law, then the Working Papers which accompanied that undertaking are an especially relevant source. Likewise, when a state has undertaken to conform some aspect of state penal law to federal law, then federal cases will provide guidance.
- Courts themselves cannot very well borrow criminal statutes from other jurisdictions, in the absence of any legislative borrowing. Thus if every state but one has a statute making it a crime to bribe an athlete to throw a game, the courts of that one state could not very well make such bribery a crime, unless it has the power to create new common law crimes, in which case it might point to these statutes as indicating such a strong public policy against such conduct that it ought to be criminal. But courts might more readily look to statutes from other jurisdictions giving a criminal a defense or might look to such statutes when interpreting its own not-borrowed statutes.
- In a number of states legislation has been enacted to abrogate the common law rule of strict construction of criminal statutes. occurred in those states that have adopted a comprehensive new criminal code. No doubt some criminal statutes deserve a stricter construction than others. Other things being equal, felony statutes should be construed more strictly than misdemeanor statutes;
- And in any event, legislative history is less likely to be controlling in construing criminal statutes than civil statutes. If one purpose of a criminal statute is to warn the public of what conduct will get them into criminal trouble—that is, if prospective criminals are entitled to fair warning—then the public should be able to ascertain the line between permitted and prohibited conduct from the statute itself. It is too much to expect the public to delve studiously into drafts of bills, committee hearings and reports and debates on the bill in order to understand the statute. In other words, the rule that criminal statutes should be strictly construed to some extent limits the use of legislative history in the case of criminal statutes.
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Chapter 1 Introduction and General Considerations Part 3 80 results (showing 5 best matches)
- Criminal Law, 23 Law & Contemp.Prob. 401, 404–406 (1958), argues therefrom that the criminal law must not be permitted to create crimes out of conduct which lacks the blameworthiness deserving of such moral condemnation.
- Robinson, A Functional Analysis of Criminal Law, 88 Nw.U.L.Rev. 857 (1994)
- For more on the problems of codification, see (in addition to items previously cited); Cohen, Criminal Law Legislation and Legal Scholarship, 15 J.Legal Ed. 253 (1964); George, Reform of State Criminal Law and Procedure, 41 Law & Contemp.Prob. 63 (1977); Remington & Rosenblum, The Criminal Law and the Legislative Process, 1960 U.Ill.L.F. 481;
- There is no general agreement as to the terminology to be used to describe these three types of legal propositions concerning crimes. J. Hall, General Principles of Criminal Law 17 (2d ed. 1960), calls them, in the order listed in the text above: (1) “rules”; (2) “doctrines”; and (3) “principles.” His valuable book deals at length with the second and third types. The excellent book by the English author, Glanville Williams, Criminal Law: The General Part (2d ed. 1961), uses the terms “general part” and “general principles” to cover both the second and third types of substantive criminal law.
- There is sometimes a question whether criminal legislation which is obviously specially designed to benefit a narrow group is constitutional. See § 3.3(b). (Of course, with criminal law not backed by a substantial portion of the public there are often difficulties in enforcement.)
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Chapter 5 Mental States Part 6 109 results (showing 5 best matches)
- 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. He has the mental state which 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 because his conduct, though literally forbidden by the criminal law, is justified by the policy of the criminal law which, in...
- 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” No person can really “know” all of the statutory and case law defining criminal conduct. Indeed, the maxim has never explained 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 knowing the applicable law.
- Whatever the merit of these several arguments in support of the general rule that ignorance or mistake as to the penal law is no defense, several commentators have expressed concern with the harshness of the rule when applied to the lesser regulatory The early criminal law was “well integrated with the mores of the time,” so that “a defendant’s mistake as to the content of the criminal law * * * would not ordinarily affect his moral guilt.” But the vast network of regulatory offenses which make up a large part of today’s criminal law does not stem from the mores of the community, and so “moral education no longer serves us as a guide as to what is prohibited.” Under these circumstances, where one’s moral attitudes may not be relied upon to avoid the forbidden conduct, it may seem particularly severe for the law to recognize ignorance or mistake of the criminal law as a defense. ...whether it is desirable to characterize as criminal an individual who has not demonstrated any...criminal
- Another argument in favor of the present rule is that while it may be harsh upon the individual defendant who was reasonably ignorant or mistaken concerning the penal law, “public policy sacrifices the individual to the general good.” include realization of the educational function of the criminal law. So the argument goes, conviction of defendants for violation of new or forgotten criminal laws serves to bring home to the general public the existence of these rules and aids in establishing them as the social mores of the community. If individuals were acquitted because of their own unawareness of the law, such acquittals would—if anything—only increase the public uncertainty and confusion as to what conduct has been made criminal.
- A defendant’s motive, if narrowly defined to exclude recognized defenses and the “specific intent” requirements of some crimes, is not relevant on the substantive side of the criminal law. On the procedural side, a motive for committing a crime is relevant in proving guilt when the evidence of guilt is circumstantial, and a good motive may result in leniency by those who administer the criminal process.
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Chapter 6 Acts; Concurrence and Consequences Part 4 28 results (showing 5 best matches)
- A Study of Criminal Violence in Sport, 11 Marq. Sports L.Rev. 87 (2000);
- But see Harel, Efficiency and Fairness in Criminal Law: The Case for a Criminal Law Principle of
- For a thoughtful assessment of the various meanings of consent in the context of criminal law, see P. Westen, The Logic of Consent (2004).
- Criminal Law, 39 Modern L.Rev. 130 (1976), contending that if the victim consents to sado-masochistic activities there should be no criminal liability unless the conduct results in “mutilation,” “disfigurement, either permanently or for an extended period,” or “serious impairment of mental or physical powers either permanently or for a protracted period.” For more on consent by a masochist and its proper significance, see
- Bergelson, Victims and Perpetrators: An Argument for Comparative Liability in Criminal Law, 8 Buff.Crim.L.Rev. 385 (2005)
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Chapter 13 Parties; Liability for Conduct of Another Part 3 36 results (showing 5 best matches)
- See, e.g., Arlen, The Potentially Perverse Effects of Corporate Criminal Liability, 23 J.Leg.Studies 833 (1994);
- National Comm’n on Reform of Federal Criminal Laws, Final Report—Proposed New Federal Criminal Code § 401 (1971), however, takes a more limited approach: “A person is not liable under this subsection for the conduct of another person when he is either expressly or by implication made not accountable for such conduct by the statute defining the offense or related provisions, because he is a victim of the offense or otherwise.” The Model Penal Code criteria were rejected “because they may impose too great a limitation on all Federal regulatory legislation, which is frequently enacted without careful regard for principles of criminal liability.” 1 National Comm’n on Reform of Federal Criminal Laws, Working Papers 158 (1970).
- Some of the recent recodifications include an express provision on this subject providing it is no defense that the offense, as defined, can be committed only by a particular class or classes of persons and the accomplice does not belong to such class or classes. See also National Comm’n on Reform of Federal Criminal Laws, Final Report—Proposed New Federal Criminal Code § 401(2)(a) (1971).
- G. Williams, Criminal Law: The General Part § 96 (2d ed. 1961). This confusion of strict liability and vicarious liability is also responsible for the assumption that vicarious liability can never be imposed for crimes requiring mental fault by the employee. “But this is specious reasoning. If one’s criminal liability may be based upon the physical activity of his servant, why may it not equally be based upon the accompanying mental activity of his servant?” Sayre, supra note 374
- Lynch, The Role of Criminal Law in Policing Corporate Misconduct, 60 Law & Contemp.Prob. 23 (Summer 1997)
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Chapter 9 Excuses and Other Conditions Part 6 69 results (showing 5 best matches)
- 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.
- 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.
- Thus, unless the common law immunity for infants under seven is incorporated into juvenile law, children under seven may be adjudged delinquent for conduct for which they lacked criminal responsibility. This issue seems not to have been confronted in the cases (perhaps indicating that it is not the practice to adjudicate as delinquent children under seven), and the commentators are not in agreement on the point. On the one hand, it is claimed that “the traditional concept of incapacity has no application” in juvenile court, presumably on the ground that juvenile courts are not intended to deal with moral responsibility and are concerned only with the welfare of children. On the other, it is contended that the common law immunity should be applicable because the juvenile court serves to vindicate the public interest in the enforcement of the criminal law. ...not follow that a significantly higher minimum age of criminal responsibility set by statute should be deemed equally...
- At the early common law infancy apparently was not a defense to a criminal prosecution, although a youthful defendant usually received a pardon. Finally, by the beginning of the fourteenth century it was established that children under the age of seven were without criminal capacity. Seven was the age of responsibility under the Roman Civil Law, and this probably influenced the common law through Canon Law.
- Even in states with modern criminal codes, the problem is more frequently addressed in terms of the allocation of jurisdiction between the criminal and juvenile courts. A typical provision of this type declares that juveniles under 14—or, under some other age—may not be subjected to criminal prosecution but only to delinquency proceedings in juvenile court. Some other statutes give exclusive jurisdiction to the juvenile court unless the juvenile was of a certain age, such as 15, 16, 17, or 18, but with exceptions for certain serious offenses. Still others merely declare more generally that juvenile court jurisdiction is not exclusive. Except for those instances in which the juvenile ends up in criminal court instead of juvenile court because of a legislative, judicial or prosecutorial waiver of juvenile court jurisdiction, these jurisdiction statutes eliminate any question concerning the applicability of the common law rules in a criminal prosecution context.
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Chapter 13 Parties; Liability for Conduct of Another Part 6 82 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?” ...crimes represent a use of the machinery of criminal justice to impose...
- 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 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.
- Permitting withdrawal under the circumstances stated above so as to avert liability is certainly appropriate. One of the objectives of the criminal law is to prevent crime, and thus it is desirable to provide an inducement to those who have counseled and aided a criminal scheme to take steps to deprive their complicity of effectiveness. Whether the added requirements imposed by some statutes concerning the person’s motives are desirable is debatable. In support, it may certainly be contended that one who withdraws merely because of a belief that the chances of apprehension have increased has not truly reformed and that he is still a proper object of criminal sanctions. On the other hand, it may be argued that even one acting under such a motive should be induced to take action directed toward prevention of the crime.
- Yet, it must be recognized that the imposition of criminal liability for faultless conduct is contrary to the basic Anglo-American premise of criminal justice that crime requires personal fault on the part of the accused. Perhaps the answer should be the same as the answer proposed in the case of strict-liability crimes: it is proper for the legislature to single out some special areas of human activity and impose vicarious liability on employers who are without personal fault, but the matter should not be called a “crime” and the punishment should not include more than a fine or forfeiture or other civil penalty; that is, it should not include imprisonment. As the law now stands, however, in almost all jurisdictions imprisonment and the word “criminal” may be visited upon perfectly innocent employers for the sins of their employees.
- In the commission of each criminal offense there may be several persons or groups which play distinct roles before, during and after the offense. Collectively these persons or groups are termed the parties to the crime. The common law classification of parties to a felony consisted of four categories: (1) principal in the first degree; (2) principal in the second degree; (3) accessory before the fact; and (4) accessory after the fact.
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Chapter 7 Insanity Defense 55 results (showing 5 best matches)
- Criminal Law 268 to 269 (9th ed. 1923); 2 J. Stephen, History of the Criminal Law of England 97 (1883).
- Comment, 4 Catholic Law. 297, 307 (1957). This objection is effectively refuted in Cutler, Insanity as a Defense in Criminal Law, 5 Catholic Law. 44, 55 (1959).
- F. Lindman & D. McIntyre, The Mentally Disabled and the Law 337 (1961); 1 National Comm’n on Reform of Federal Criminal Laws, Working Papers 236–37 (1970).
- Hall, Psychiatry and Criminal Responsibility, 65 Yale L.J. 761 (1956)
- See E. Saks (with S. Behnke), Jekyll on Trial: Multiple Personality Disorder and Criminal Law (1997);
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Chapter 11 Solicitation and Attempt Part 4 78 results (showing 5 best matches)
- 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. 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. This does not mean, of course, that the mere fact the solicitor was legally incapable of committing the crime directly provides him with a defense when he solicits another to do it.
- The Court of Star Chamber was abolished in 1640, and its influence upon subsequent common law courts is a matter of dispute. But it is clear that many years elapsed after its abolition before a doctrine of criminal attempt was actually formulated. “[T]he language of the common law courts after 1640 continues to reflect the early common law views and statements antedating the Star Chamber; there is not a ripple in the calm surface to indicate that a new doctrine of criminal attempts had been suggested.” Most likely the development of the crime of attempt was retarded by the fact that other means often existed for dealing with unsuccessful or incompleted criminal schemes. Of particular significance is the accelerated growth of the aggravated assault type of crime during this period.
- 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 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 which would result should the inducements prove successful, 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.
- Judging from the volume of literature in this area, scholars in the field of substantive criminal law appear to be more fascinated with the subject of impossibility in attempts than with any other subject. question of whether we should punish a person who has attempted what was not possible under the surrounding circumstances requires careful consideration of many of the fundamental notions concerning the theory and purposes of a system of substantive criminal law.
- rather than an intent to engage in criminality, which is required. Thus, if the defendant intended to do something which he believed was against the law but which in fact was not unlawful, then he cannot be said to have engaged in a criminal attempt. So too, ignorance of the applicable criminal law
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Chapter 12 Conspiracy Part 2 35 results (showing 5 best matches)
- Compare Rosenberg, Several Problems in Criminal Conspiracy Laws and Some Proposals for Reform, 43 Criminal Law Bull. 427 (2007), proposing a requirement of an overt act by each defendant.
- For more detailed accounts of the history of conspiracy, see P. Winfield, History of Conspiracy and Abuse of Legal Procedure (1921); R. Wright, The Law of Criminal Conspiracies and Agreements (1887); Criminal Conspiracy, 89 U.Pa.L.Rev. 624 (1941); Pollack, Common Law Conspiracy, 35 Geo.L.J. 328 (1947);
- Although “the law does not punish criminal thoughts,” the absence of an overt act requirement for conspiracy does not violate this principle, for “the criminal agreement itself is the
- Developments in the Law—Criminal Conspiracy, 72 Harv.L.Rev. 920, 975–76 (1959)
- G. Williams, Criminal Law: The General Part 666 (2d ed. 1961).
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Chapter 2 Sources and General Limitations Part 8 34 results (showing 5 best matches)
- The principle that prospective criminals should be given fair warning is the underlying basis of other important rules of criminal law: (1) the rule that vague criminal statutes violate due process, see § 2.3; (2) the federal and state constitutional prohibitions against ex post facto laws, see § 2.4; and (3) the decision of the courts or legislatures of a number of states and of the federal government that there are no common law crimes, see § 2.1.
- National Comm’n on Reform of Federal Criminal Laws, Final Report—Proposed New Federal Criminal Code § 102 (1971), calls for construction to achieve certain stated objectives, one of which is “to give fair warning of what is prohibited and of the consequences of violation.” Language in the Tentative Draft explicitly rejecting the strict construction rule was not carried over to the Final Report, and this has been explained as follows: “The purpose of the change is to make clear that arbitrary application of the strict construction rule is disavowed, while not explicitly abrogating the rule. The concerns militating against an explicit repudiation of the rule include the following: (a) it might be read to permit an improper delegation of authority to define crime to the judiciary; (b) it might be read to obviate the necessity for the sort of precision in the drafting of criminal legislation which should, particularly for a new Code, be sought; and (c) it might result in an increase in...
- G. Williams, Criminal Law: The General Part § 134 (1953).
- 47 Colum.L.Rev. 613–14 (1947), by reference to two statements by Justice Jackson as chief prosecutor of Nazi war criminals. He castigated the Nazis for punishing as criminal acts not forbidden by statute (a weapon used to achieve a police state); but as to whether international law made aggressive war-making criminal in the absence of statute he had said one year earlier: “International law * * * is not capable of development by legislation for there is no continuously sitting international legislature. * * * It grows, as did the common-law, through decisions reached from time to time in adapting settled principles to new situations. Hence, I am not disturbed by the lack of precedent” for the crime of launching aggressive war. For full discussion of the legal aspects of the war trials, see
- , at 221 (noting statutes abolishing the rule “have languished in near oblivion”); J. Hall, General Principles of Criminal Law 48 (2d ed. 1960) (noting that such legislation is largely ineffective because the “fair warning” principle is so firmly embedded in Anglo-American criminal law); Note,
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Chapter 1 Introduction and General Considerations Part 4 79 results (showing 5 best matches)
- To the limited extent that the law imposes criminal liability for omission to act, see § 6.2, criminal law does encourage good conduct.
- On the consequences of overloading the criminal justice system by using it as a device for the administration of social services, see Allen, The Borderland of the Criminal Law: Problems of “Socializing” Criminal Justice, 32 Social Serv.Rev. 107 (1958).
- Criminal Law, 23 Law & Contemp.Prob. 401 (1958). For a collection of essays critically examining this classic work, see In the Name of Justice (T. Lynch ed. 2009).
- Criminal Law, 23 Law & Contemp.Prob. 401, 409 (1958).
- The necessity of discretionary enforcement on this basis has frequently received recognition, e.g., R. Pound, Criminal Justice in America 19–20 (1930); Breitel, Controls in Criminal Law Enforcement, 27 U.Chi.L.Rev. 427, 431 (1960); Hall, Police and Law in a
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Chapter 5 Mental States Part 3 42 results (showing 5 best matches)
- Criminal Law 70 (2009); J. Hall, General Principles of Criminal Law 137 (2d ed. 1960); G.
- G. Williams, Criminal Law: The General Part § 26 (2d ed. 1961), suggesting that the risk is so unreasonable as to create criminal liability for manslaughter and probably even murder.
- Some courts, instead of talking in terms of necessity, speak of an “implied exception” in the statute when they do not wish to apply the statute literally—as where a policeman, in pursuit of a fleeing criminal, goes over the speed limit. See § 2.2(c). In one case it was held that a policeman who engaged in gambling in violation of the literal language of the statute, in order to secure evidence to convict gamblers, was not guilty of gambling because he lacked the necessary criminal intent: . It would seem that the proper basis for these decisions is really, not implied exception or lack of intent, but rather necessity: law enforcement is a value greater than the value secured by literal compliance with the speeding or gambling laws.
- Thus, Model Penal Code § 3.02(1) gives the defense of necessity to one whose conduct literally constitutes a criminal offense only when he “believes” the conduct to be necessary to avoid a harm (and provided that the harm sought to be avoided is in fact greater than the harm sought to be prevented by the law defining the offense).
- J. Hall, General Principles of Criminal Law 138–39 (2d ed. 1960).
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Chapter 16 Physical Harm and Apprehension Thereof 22 results (showing 5 best matches)
- See § 5.2(d), for a discussion of the general principle of criminal law that, with all crimes requiring a specific intent, the defendant intends to do the forbidden thing, for purposes of criminal law, though he intends to do it only if the victim fails to comply with a condition the defendant has no legal right to impose.
- More accurately, “legally causes,” since it is not always enough, in criminal law, that the defendant’s conduct cause the injury in a “but for” sense. For a discussion of “legal cause” in criminal law, see § 6.4(c).
- For the effect of consent, generally, in criminal law, see § 6.5(a). For consent in the assault and battery area, see Puttkammer, Consent in Criminal Assault, 19 Ill.L.Rev. 617 (1925);
- Volokh, One-to-One Speech vs. One-to-Many Speech, Criminal Harassment Laws, and “Cyberstalking,” 107 Nw.U.L.Rev. 731 (2013)
- , that the “act of stalking has been recognized by English criminal law since 1722,” the “case of first impression” referred to is Queen v. Dunn
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Chapter 12 Conspiracy 27 results (showing 5 best matches)
- Such would no longer be the case under the proposed new federal code, which gives distinct treatment to the jurisdictional and behavioral content of the law. National Comm’n on Reform of Federal Criminal Laws, Final Report—Proposed New Federal Criminal Code § 201 (1971).
- The Court explained that knowledge by the conspirators “that their planned joint venture violates federal as well as state law seems totally irrelevant to that purpose of conspiracy law which seeks to protect society from the dangers of concerted criminal activity,” and also to that purpose of allowing intervention of the criminal law when “the likelihood of a commission of an act is sufficiently great and the criminal intent sufficiently well formed.”
- Developments in the Law—Criminal Conspiracy, 72 Harv.L.Rev. 920, 936 (1959)
- Developments in the Law—Criminal Conspiracy, 72 Harv.L.Rev. 92, 944 (1959)
- Developments in the Law—Criminal Conspiracy, 72 Harv.L.Rev. 920, 930 (1959)
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Chapter 21 Real Property Crimes Part 3 84 results (showing 5 best matches)
- While “any unauthorized entry on the land of another or unlawfully remaining on the premises of another is a trespass for which the law provides a civil remedy,” “trespass was not a crime at common law * * * unless it was accompanied by or tended to create a breach of the peace.” Criminal trespass as now defined in the law of most states is considerably broader than at common law, more generally covering “unwanted intrusion” onto real property. In large measure, the modern statutes serve a purpose much like that underlying the common law offense; just as “the criminal sanctions of the common law [offense] were imposed for the protection of public safety,” so too trespass statutes criminalizing refusal to leave another’s property when ordered to do so are directed at “the prevention of violence or threats of violence.” But today’s criminal trespass statutes are also intended to afford “protection to property rights” ..., which is itself “a proper subject for the imposition of criminal...
- The intrusive act required for the crime of criminal trespass is an entering of or remaining within or upon the specified premises in circumstances where such action is in fact contrary to law. is used in the great majority of the state criminal trespass statutes, and elsewhere very similar language is employed.law burglary is neither an additional requirement for a criminal trespass
- One group of states, numbering only half a dozen, has adopted the Model Penal Code position, namely, that it is an “affirmative defense” under the criminal trespass law that “the premises were at the time open to members of the public The “primary objective of the defense is to exclude criminal prosecution for mere presence of a person in a place where the public generally is invited,” and would not foreclose prosecution of persons “who become undesirable due to disorderly conduct or other misbehavior [which] itself amounts to another criminal offense.”
- A second approach is demonstrated by the Model Penal Code. The drafters expressed the desire to abolish the offense, but realized that it was so imbedded in the laws and minds of legislatures that this would be impossible. The Model Penal Code approach is thus to narrow the offense considerably in order to bring its coverage back more closely to that of its common-law ancestor. Because the common-law requirement of “breaking” had given rise to absurd distinctions, it is not included; but the “core of the common-law conception,” and (c) it comports better with the realities of law enforcement, in that when the burglar is apprehended his precise criminal purpose may be unclear. The “dwelling of another” and “nighttime” elements of the common law are utilized for grading purposes.
- While the common law crime of burglary protected only the dwelling house from intrusion, the typical criminal trespass statute offers protection to a much greater array of real property. Indeed, most of these statutes cover the full array of real property, from dwellings to other structures and on down to unimproved land. While this might suggest that the offense could simply be defined in a single sentence covering an entry of or remaining on real property with the requisite state of mind, most of the statutes in this area are more complex. This is primarily because of a legislative judgment that for at least some varieties of real property it must be shown that certain steps were taken to manifest clearly that entry or remaining was forbidden, absent which entering or remaining with the mental state that would otherwise suffice is not criminal.
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Chapter 5 Mental States Part 5 53 results (showing 5 best matches)
- J. Hall, General Principles of Criminal Law 376 (2d ed. 1960). Consider, e.g., the study showing that “residents of states * * * that had adopted a minority position on some aspect of criminal law reported the relevant law of their state to be no different than did citizens of ‘majoritarian’ states.”
- Federal Criminal Law, 37 Clev.St.L.Rev. 525 (1989)
- Larkin, A Mistake of Law Defense as a Remedy for Overcriminalization, 28 Crim.Just. 10, 18 (Spring 2013)
- “The fear that an issue of knowledge of the law cannot be adjudicated seems to be unfounded. If a normal adult fires at another at point-blank range, his defense that he did not intend to kill would be received with incredulity, and so would a defense that he did not know murder to be a crime. On the other hand, if he shoots another when hunting at dusk, his defense that he did not intend to kill a man might be believed; and in the same way his belief that he is entitled by law to shoot a would-be thief might be believed whether it represents the true legal position or not.” G. Williams, Criminal Law: The General Part 291 (2d ed. 1961).
- Criminal Law, 88 U.Pa.L.Rev. 35, 42–43 (1939). Contra:
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Chapter 2 Sources and General Limitations Part 5 23 results (showing 5 best matches)
- The Supreme Court long ago 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, 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. ...facto laws will, however, be...
- It applies only to criminal matters, retroactive civil statutes have sometimes been held unconstitutional on some other ground, usually as a taking of property rights without due process of law.
- —is relevant in the situation where a judicial decision is applied retroactively to the disadvantage of a defendant in a criminal case. And thus the United States Supreme Court has said that the due process clause bars an appellate court from doing what the ex post facto clause prohibits a legislature from doing. Actually, the proposition cannot be applied that broadly, as all case-law, including that interpreting criminal statutes, operates retroactively, and such retroactivity is an essential part of our legal system. It is fair to conclude that: (1) the prohibition of retroactive judicial decisions is not as extensive as the prohibition of ex post facto statutes; and (2) the law regarding the former is not as clearly developed as that concerning the ex post facto clause.
- Some ex post facto questions of the increased-punishment type have arisen in connection with the passage of habitual criminal laws, which impose enhanced penalties for later offenses if the defendant has previously been convicted of one or more crimes. If the defendant commits crime at a time when there is no habitual criminal statute, then such a statute is passed imposing increased punishment for a second offense, and then the defendant commits crime , it is not within the ex post facto prohibition to apply the habitual criminal statute to crime
- Over the years, some decisions of the Supreme Court have applied the ex post facto prohibition to retroactive changes in evidence or other procedure which operated to the disadvantage of the criminal defendant by making conviction easier. Some cases had to do with the fourth category in By comparison, a statute enlarging the class of persons competent to testify was not deemed to be ex post facto as applied to past offenses, for the new rule may be used either for or against criminal defendants as a class. which involved the retroactive application of a change in the law so that a sex offense victim’s testimony alone could support a conviction, without there being the corroborating evidence or timely outcry previously required. The Court in r’s fourth category regarding “less testimony required to convict,” and rejected the state’s claim that the fourth category is limited to alteration of the burden of proof, noting that laws lowering the burden of proof and laws reducing the...
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Chapter 7 Insanity Defense Part 2 79 results (showing 5 best matches)
- There exist in the criminal law a number of substantive defenses to a charge of criminal conduct. These defenses are usually defined in terms of unusual circumstances which, 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. is murder, and the various purposes of the criminal law from killing him, then the defense of self-defense comes into play because the purposes of the criminal law are better served by
- Criminal Law 24–25 (1964); N. Morris, Madness and the Criminal Law 28–88 (1982); T. Szaz, Law, Liberty, and Psychiatry 123–46 (1963); W. Winslade & J. Ross, The Insanity Plea 198–226 (1983); B. Wootton, Crime and the Criminal Law 65–93 (2d ed. 1981); Gerber, Criminal Law, Please!, 1973 Wash.U.L.Q. 126; ; Morris, The Criminal Responsibility of the Mentally Ill, 33 Syrac.L.Rev. 477 (1982); Morris, Psychiatry and the Dangerous Criminal, 41 So.Cal.L.Rev. 514 (1968); Thomas, Breaking of the Stone Tablet: Criminal Law Without the Insanity Defense, 19 Idaho L.Rev. 239 (1983). But see M. Perlin, The Jurisprudence of the Insanity Defense (1994) (challenging those and similar arguments as nothing but myths).
- “[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.
- 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 with which we are principally concerned 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;
- Punishment of those who violate the criminal laws also serves as a means of general prevention, in that the law-abiding tendencies of the general public are reinforced by the example of punishment of those who have not been law abiding. This purpose would not be served by conviction and punishment of the insane, for “the examples are likely to involved in the criminal process regards the lessons as applicable to him,” which he is likely to do “only if he identifies with the offender and with the offending situation.”
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Chapter 6 Acts; Concurrence and Consequences Part 2 33 results (showing 5 best matches)
- For other discussions of “legal” or “proximate” cause in the criminal law, see J. Hall, General Principles of Criminal Law ch. 8 (2d ed. 1960); H. Hart & A. Honore, Causation in the Law chs. 12–14 (1959); G. Williams, Criminal Law: The General Part ch. 4 (2d ed. 1961); ; Mueller, Causing Criminal Harm, in Essays in Criminal Science 169 (G. Mueller ed. 1961);
- Note that in the substantive law of torts the degree of harm actually caused by a particular tort is important, for there the amount to be recovered in damages depends upon the damage caused. But in the substantive criminal law the degree of harm caused by a particular crime may be irrelevant, though as a matter of discretion the ultimate punishment may depend somewhat on the degree of harm.
- (due process barred defendant’s conviction for possessing and transferring unregistered machine gun, as registration was precluded by law, and thus crimes “have as an essential element his failure to do an act that he is incapable of performing”); (“Where, as here, an offense involves a criminal omission, * * * a criminal defendant may raise an affirmative defense of impossibility”); (court concludes that while inability to pay is no defense to a charge of felony nonsupport, a strict liability offense, because the offense “criminalizes an omission,” a common-law defense of impossibility is available if defendant explored and eliminated “all the reasonably permissible, lawful avenues of obtaining the revenue required to comply with the support order”); ...-and-run statute imposed strict liability, defendant nonetheless may not be convicted if he “lacks the mental: or physical ability to perform the required act”). See also Smart, Criminal Responsibility for Failing to Do the...
- G. Williams, Criminal Law: The General Part 174 (2d ed. 1961).
- J. Hall, General Principles of Criminal Law 189 (2d ed. 1960); 1 W. Russell, supra note 171
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Chapter 11 Solicitation and Attempt Part 2 42 results (showing 5 best matches)
- National Comm’n on Reform of Federal Criminal Laws, Final Report—Proposed New Federal Criminal Code § 1005 (1971) provides that it is an affirmative defense to a solicitation charge “that, under circumstances manifesting a voluntary and complete renunciation of his criminal intent, the defendant prevented the commission of the crime solicited.”
- The distinction might be important for several reasons, depending upon the law of the jurisdiction. If only solicitation of felonies has been made criminal, then has not committed a criminal solicitation. If the penalties for solicitation are determined by the seriousness of the crime solicited then
- Some of the modern solicitation statutes also state that it is no defense that the person solicited was unaware of the criminal nature of the conduct or of defendant’s criminal purpose, or that some factor precluded him from having the mental state required of the person solicited. Absent such a provision, if the solicitor withholds certain facts from the other party so that the solicited acts, under the circumstances as believed by the party solicited, would not be criminal, then a criminal solicitation has not occurred. The solicitor has not incited the other person to commit a crime, but rather may have committed an attempt through his scheme to have an innocent agent act for him. G. Williams, Criminal Law: The General Part 616–17 (2d ed. 1961); Model Penal Code § 5.01, Comment at 346 to 347 (1985).
- For more detailed accounts of the history of attempt, see J. Hall, General Principles of Criminal Law 558–74 (2d ed. 1960); 1 W. Russell, Crime 173–76 (12th ed. 1964); Meehan, The Trying Problem of Criminal Attempt—Historical Perspective, 14 U.Brit.Col.L.Rev. 137 (1979);
- “[E]ven for persons trained in the art of speech, words do not always perfectly express what is in a man’s mind. Thus in cold print or even through misplaced emphasis, a rhetorical question may appear to be a solicitation. The erroneous omission of a word could turn an innocent statement into a criminal one (for example, ‘You shoot the President’ versus ‘Should you shoot the President?’).” 1 National Comm’n on Reform of Federal Criminal Laws, Working Papers 372 (1970).
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Chapter 6 Acts; Concurrence and Consequences Part 5 78 results (showing 5 best matches)
- 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 the leading case of (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 most obvious difference in this regard between the two areas of law, of course, is that in tort law the defendant may be held responsible for harms different than those actually risked by his conduct, while this is generally not the cause in the criminal law. It is significant that it is in the limited areas of the criminal law where this is possible—felony-murder and misdemeanor-manslaughter—that there has been the greatest move away from the notion that legal cause in tort cases is controlling.
- 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. should not suffer the penalty for murder, nor should he be entirely free of criminal sanctions.
- The problems of legal causation arise in both tort and criminal settings, and the one situation is closely analogous to the other. legal causation in criminal law as in tort law, 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).
- At all events, criminal liability requires that the activity in question be voluntary. The deterrent function of the criminal law would not be served by imposing sanctions for involuntary action, as such action cannot be deterred. Likewise, assuming revenge or retribution to be a legitimate purpose of punishment, there would appear to be no reason to impose punishment on this basis as to those whose actions were not voluntary. Restraint or rehabilitation might be deemed appropriate, however, where individuals are likely to constitute a continuing threat to others because of their involuntary movements, but it is probably best to deal with this problem outside the criminal law.
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Chapter 12 Conspiracy Part 4 69 results (showing 5 best matches)
- 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, But most states provide that the object of a criminal conspiracy must be some crime
- Nonetheless, Hawkins asserted in 1716 that “there can be no doubt, but that all confederacies whatsoever, wrongfully to prejudice a third person, are highly criminal at common law,” The vast majority of the decisions, however, continued to adhere to the long-established law that the object of the conspiracy or the means used must in fact be criminal.
- Only conspiracies to falsely accuse others of felonies were criminal in the early seventeenth century. A loosely reasoned assertion by Hawkins that “there can be no doubt, but that all confederacies whatsoever, wrongfully to prejudice a third person, are highly criminal at common law” helped extend the law of conspiracy to cover non-criminal objects. This extension was usually justified on the grounds that the means to perpetrate the wrong are particularly dangerous to the public,
- Conspiracies to defraud by acts not criminal by one person have been consistently held to be punishable where the common law approach prevails. Beginning with a conspiracy by London hewers to deprive the tax men of their revenue, combinations to defraud the government have been declared criminal conspiracies. at common law generally held to be criminal conspiracies, and were punishable as conspiracies before the fraud became a substantive crime.
- It is far better to limit the general conspiracy statute to objectives which 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 3 Constitutional Limits on Power to Create Crimes Part 6 62 results (showing 5 best matches)
- 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 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.
- ) to declare conduct criminal. But there are And most important, the police power is also constitutionally limited in the sense that certain activity is beyond regulation by the criminal law. Such a conclusion may be reached via the substantive due process notion that conduct may not be punished unless it bears a substantial relationship to injury to the public, (All of the above limitations flow from provisions of the United States Constitution applicable to both the federal government and the fifty states, although state courts often rely upon similar language in their respective state constitutions.) Finally, in the case of state legislation, the activity may be beyond the reach of the substantive criminal law because the federal government has preempted the area or because prohibition of the activity would impose an undue burden on interstate commerce. of substantive criminal law is rarely constrained by constitutional requirements, at least compared with some foreign...
- 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.” 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 when overruling the prior decision. ) Thus, even when a criminal statute is challenged on this basis, the Court is more likely to decide the case on void-for-vagueness ...that the Court is on more solid ground in finding that a criminal statute conflicts with the Bill of Rights than in finding that it bears no substantial... ...criminal...
- It is apparent that it is of some consequence whether the court says, “hands off” or “try again.” The former is a direct rejection of the legislature’s judgment that certain conduct should be within the ambit of the criminal law; the latter only calls for greater care in setting forth what is proscribed. Given the sensitive nature of the relationship between legislatures and courts in developing the substantive criminal law (particularly state legislatures vis-á-vis the United States Supreme Court), courts are often reluctant to erect absolute limits to the police power and thereby foreclose experimentation with some other statutory formulation. This is reflected in the growing hesitancy of courts to circumscribe the police power on substantive due process and equal protection grounds,
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Chapter 9 Excuses and Other Conditions 60 results (showing 5 best matches)
- Berman, Justification and Excuse, Law and Morality, 53 Duke L.J. 1 (2003)
- Berman, Justification and Excuse, Law and Morality, 53 Duke L.J. 1 (2003)
- See also J.C. Smith, Justification and Excuse in the Criminal Law (1989);
- 1 P. Robinson, Criminal Law Defenses § 21 (1984)
- The present law is right in requiring, for the defense, that the defendant be actually coerced by the threat into violating the terms of the criminal law. A taxi driver would not have the defense, for instance, if he voluntarily drove over the speed limit, only to learn later, to his surprise, that his passenger in the back seat was holding a gun pointed at the driver’s head ready to order the driver to speed had he not voluntarily done so.
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Chapter 14 Murder Part 2 24 results (showing 5 best matches)
- The foregoing history is contained in N.Y. State Law Revision Commission, Communication to the Legislature, Legislative Doc. No. 65, 536–540 (1937), reprinted in L. Hall & S. Glueck, Criminal Law & Its Enforcement 37–39 (2d ed. 1958). See also R. Moreland, The Law of Homicide chs. 1–3 (1952); 1 J. Stephen, A History of the Criminal Law of England (1883).
- The leading general discussions of murder and manslaughter are: G. Fletcher, Rethinking Criminal Law chs. 4 & 5 (1978); R. Moreland, The Law of Homicide (1952); Wechsler & Michael, A Rationale of the Law of Homicide, 37 Colum.L.Rev. 701, 1261 (1937); Perkins, The Law of Homicide, 36 J.Crim.L. & Crim. 391 (1946);
- “The effect of the definition of death on the criminal liability of a physician acting in his professional capacity must be discussed in the theoretical realm, for to date there has been no criminal case centered on the legality of a doctor’s having adopted brain death as death.” Guthrie, supra note 55
- 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;
- (as a matter of common law development, word “person” in vehicular homicide statute construed to include a viable fetus); , court elects to reject “obsolete, antiquated common law rule” and thus holds phrase “human being” in homicide statute covers viable fetus); (as a matter of common law development, court rules homicide prosecution may be maintained as to killing of viable fetus). Consider also (legislature’s revision of definition of “person” in criminal code to include “a human being from the moment of fertilization and implantation” held not to make killing of fetus murder; court stresses other jurisdictions making killing of fetus homicide “have done so by separate enactments”). See also
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Chapter 10 Justification Part 4 61 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 which 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 And in those cases of trespass on government property or similar criminal protest activity purportedly undertaken to terminate some dangerous governmental action, “a defendant’s legal alternatives will rarely, if ever, be deemed exhausted when the harm of which he complains can be palliated by political action.” (By similar reasoning, a citizen who engages in criminal conduct in an effort to cause the government to terminate action he believes is in violation of international law cannot invoke an international law or Nuremberg defense, ...law in...
- See Model Penal Code § 3.02, Comment (1985); G. Williams, Criminal Law: The General Part ch. 17 (2d ed. 1961); J. Hall, General Principles of Criminal Law ch. 12 (2d ed. 1960); Arnolds & Garland, The Defense of Necessity in Criminal Law: The Right to Choose the Lesser Evil, 65 J.Crim.L. & C. 289 (1974); Bergelson, Choice of Evils: In Search of a Viable Rationale, 6 Crim.Law & Philos. 289 (2012);
- 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).
- has any application to substantive criminal law defenses, era the case appears to have influenced changes made to statutes (mostly of the substantive-law-defense variety, but sometimes of the criminal procedure variety) on the subject of use of deadly force. Thus, though a few statutes continue to follow the common law rule, the others do not.
- 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.
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Chapter 5 Mental States Part 2 13 results (showing 5 best matches)
- See the discussion in J. Hall, General Principles of Criminal Law 83–93 (2d ed. 1960); H. Morris, Freedom and Responsibility ch. 4 (1961); J. Salmond, Jurisprudence § 134 (9th ed. 1937); G. Williams, Criminal Law: The General Part § 21 (2d ed. 1961);
- This usage is criticized in J. Hall, General Principles of Criminal Law 142 (2d ed. 1960).
- Criminal Law § 47 (2005). For other sources, see Hitchler, Motive as an
- Cook, Act, Intention and Motive in the Criminal Law, 26 Yale L.J. 645 (1917)
- to establish his criminal intention than there is in forced intercourse.”
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Chapter 13 Parties; Liability for Conduct of Another Part 5 45 results (showing 5 best matches)
- National Comm’n on Reform of Federal Criminal Laws, Final Report—Proposed New Federal Criminal Code § 1303 (1971).
- Criminal Law § 705 (9th ed. 1923).
- 2 J. Stephen, History, of the Criminal Law of England 231 (1883).
- Id. at 232. Any man who could read was allowed to plead benefit of clergy and thereby avoid capital punishment. 1 J. Stephen, History of the Criminal Law of England 461 (1883).
- Criminal Law 372 (12th ed. 1932).
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Chapter 15 Manslaughter; Suicide Assistance Part 2 49 results (showing 5 best matches)
- J. Hall, General Principles of Criminal Law 259–60 (2d ed. 1960) (cases expounding the rule termed “glaring examples of the dominance of constructive criminal homicide in the United States”).
- See § 16.3 for the definition of a criminal assault. In almost all jurisdictions an attempted battery which misses the victim is a criminal assault; in a majority of jurisdictions intentionally causing mental apprehension in the victim constitutes an additional type of criminal assault.
- It has been argued that in the case of the survivor of a suicide pact, all of the arguments against treating attempted suicide as criminal apply. Because the survivor wanted to end his own life, punishing him “can serve no deterrent purpose, may hinder medical treatment, and is merely useless cruelty,” which “can do no more than strengthen the will to succeed in the act of self-destruction.” G. Williams, The Sanctity of Life and the Criminal Law 305 (1957). But while “there is some logic in assimilating the double suicide attempt to the case of the single attempt, there is an unavoidable danger of abuse in differentiating genuine from spurious agreements.”
- Brenner, Undue Influence in the Criminal Law: A Proposed Analysis of the Criminal Offense of “Causing Suicide,” 47 Albany L.Rev. 62 (1982)
- See § 5.4. Conceivably, it might be required for manslaughter liability of the criminal-negligence type that the victim’s death must be more than just foreseeable; i. e., to go from tort negligence to criminal negligence we should vary (either instead of, or in addition to, the degree of risk and subjective realization possibilities discussed in the text above) the “proximate cause” (“legal cause”) requirement, requiring something stricter for criminal liability than for torts.
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Chapter 9 Excuses and Other Conditions Part 3 38 results (showing 5 best matches)
- On the need for criminal prosecution of some quite young children, see
- See Bowman, Narcotic Addiction and Criminal Responsibility Under Durham, 53 Geo.L.J. 1017 (1965);
- And, if the matter is dealt with by state law solely in terms of allocation of jurisdiction between the criminal courts and juvenile courts, obviously a juvenile being proceeded against in juvenile court cannot invoke the age jurisdiction bar that would exist if he were in criminal court.
- But it is not inconsistent with the conclusion that addicts and alcoholics are “responsible for their choices” so as to lack a criminal law defense to say that we need “to seek a recharacterization of drug and alcohol addiction as a medical problem.”
- Criminal Law, 87 U.Pa.L.Rev. 426, 435 (1939).
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Chapter 5 Mental States Part 4 39 results (showing 5 best matches)
- Substantive Criminal Law, 9 Am. J. Crim. L. 163 (1981); Hippard, The Unconstitutionality of Criminal Liability Without Fault: An Argument for a Constitutional Doctrine of Mens Rea, 10 Hous.L.Rev. 1039 (1973); Saltman, Strict Criminal Liability and the United States Constitution: Substantive Criminal Law Due Process, 24 Wayne L.Rev. 1571 (1978).
- Criminal Law, 23 Law & Contemp.Prob. 401, 423–24 (1958).
- See J. Hall, General Principles of Criminal Law ch. 11 (2d ed. 1960).
- Model Penal Code § 2.04(1)(a). Several modern codes contain such a provision. Surprisingly, however, a larger number of modern codes (as well as some earlier ones) have a provision which so provides only as to mistakes of fact. “This is no doubt due to the reaction of legislators who, even if laymen, are familiar with the common law maxim that ‘ignorance of the law is no excuse.’ ”
- Simons, Ignorance and Mistake of Criminal Law, Noncriminal Law, and Fact, 9 Ohio St.J.Crim.L. 487 (2012)
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Chapter 15 Manslaughter; Suicide Assistance Part 3 57 results (showing 5 best matches)
- The modern criminal law problems relating to suicide concern the criminal liability of (1) one who unsuccessfully attempts to commit suicide, causing harm to no one else; (2) one whose unsuccessful attempt kills or injures someone else—a would-be rescuer or innocent bystander; and (3) one who persuades or aids or forces another to commit a successful suicide.
- 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 category. As time passed it came to be considered too harsh a rule, and the courts began to place limitations upon it.
- 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.”
- “Unlawful act” is a phrase, however, which also includes criminal acts other than misdemeanors. Thus a felony which for some reason will not suffice for felony-murder ) may qualify as unlawful acts to the same extent as violation of state criminal laws. And going clearly outside the area of criminal conduct, it has been held that attempted suicide, though not a crime, is an unlawful act for manslaughter purposes; though not criminal offenses, were said to be unlawful acts for manslaughter purposes.
- with quite different criminal-law consequences flowing from this distinction, ought to be abandoned. Some courts, in fact, seem to get on very well without making the distinction. Some cases, as noted above, while recognizing the existence of a separate branch of involuntary manslaughter in the commission of an unlawful act, seem to apply the same rule in the case of all unlawful acts without regard to whether they are in the one category or the other. manslaughter, suggest making the more specific distinction between an unlawful act in violation of a criminal law designed to protect persons against death or serious injury, on the one hand, and designed for other purposes (e.g., to protect property), on the other, rather than drawing the uncertain line between an act ...lines. But even where the distinction is made between criminal statutes (or ordinances) which are designed to protect against death or serious bodily injury and statutes (ordinances) with other purposes, still the...
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Chapter 17 Rape Part 3 75 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 17.5, along with the matter of punishment.
- 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. ...virtual disappearance of the latter offenses from the law. A variety of more modern justifications for the crime of rape were put forward, which explains why it is said that rape “is...
- Criminal Law 520 (1987).
- 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”
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Chapter 15 Manslaughter; Suicide Assistance 23 results (showing 5 best matches)
- See H. Weihofen, Mental Disorder as a Criminal Defense 189–92 (1954). Compare S. Glueck, Mental Disorder and the Criminal Law 484 (1925), arguing for a verdict of “partially insane and semi-responsible offender” for whom a reduced punishment may be given.
- See R. Moreland, The Law of Homicide ch. 10 (1952); R. Moreland, A Rationale of Criminal Negligence (1944);
- H. Weihofen, Mental Disorder as a Criminal Defense 184 (1954), lists decisions from ten states and dicta from two more, supporting the view that mental disease short of insanity will reduce to second degree murder.
- , the court states that the criminal negligence required for manslaughter “must be wanton or reckless under circumstances implying danger to human life,” and “must be of a gross or flagrant character, such as would show wantonness or recklessness, or would evince a reckless disregard of human life or the safety of others, or indifference to consequences, equivalent to criminal intent,” and “negligence so wanton or reckless as to be incompatible with a proper regard for human life.” Whether this language means that the defendant’s conduct must involve a higher degree of risk of death or serious injury to others than is required for tort negligence, or that the defendant must subjectively realize that his conduct creates an unreasonable risk (a realization not required for tort negligence), or both, is not at all plain.
- (if retrial is on same evidence, instruction should be with respect to unlawful act manslaughter, not criminal negligence manslaughter, as no showing of latter).
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Chapter 1 Introduction and General Considerations Part 6 20 results (showing 5 best matches)
- ; National Comm’n on Reform of Federal Criminal Laws, Final Report—Proposed New Federal Criminal Code § 103 (1971).
- 1 P. Robinson, Criminal Law Defenses § 5(b)(2) (1984)
- As to the constitutionality of statutory presumptions in criminal law, see § 3.4.
- Jeffries & Stephan, Defenses, Presumptions, and Burden of Proof in the Criminal Law, 88 Yale L.J. 1325, 1366–79 (1979)
- On like reasoning, the Court rejected defendant’s claim “that it is necessary to prove a ‘criminal’ intent to convict, * * * which cannot occur if self-defense is shown.”
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Chapter 13 Parties; Liability for Conduct of Another 48 results (showing 5 best matches)
- Furthermore, many laws and practices of enforcement openly tolerate and sometimes actively encourage private compromise of criminal liability. [P]rosecutors themselves are often content to drop criminal proceedings when the alleged offender agrees to make appropriate restitution to the victim.
- This approach is also taken in the proposed new federal code. National Comm’n on Reform of Federal Criminal Laws, Final Report—Proposed New Federal Criminal Code § 401 (1971).
- 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 The Model Penal Code 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.”
- . This is for the obvious reason that without one there can be no criminal act. 1 J. Bishop, Criminal Law § 649 (9th ed. 1923).
- A number of the above contentions have been challenged with these counter-arguments: (1) that the imposition of a criminal fine on the corporation is often ineffective as a profit-diminishing sanction, in that the economic cost of the fine may be “passed on” to the consumer by means of higher prices or rates; (3) that the availability of the corporation as a defendant provides a convenient “scapegoat” whereby corporate agents engaged in the wrongdoing escape the personal criminal liability which would be a greater deterrent; (4) that depriving wrongdoers of their ill-gotten gains is not a function of the criminal law, and (5) that the criminal prosecutions of corporations are not adequately reported to the public to result in damage to the “corporate image.”
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Chapter 20 Other Personal Property Crimes 18 results (showing 5 best matches)
- The crime of robbery was created before that of larceny. See Model Penal Code § 223.1, Comment at 128 (1980), dealing with the “long history of expansion of the role of the criminal law in protecting property. That history begins with a concern for crimes of violence—in the present context, the taking of property by force from the possession of another, i.e., robbery. The criminal law then expanded, via the ancient quasi-criminal writ of trespass, to cover all taking of another’s property from his possession without his consent, even though no force was used. This misconduct was punished as larceny.” The scope of robbery grew gradually: “formerly the offense seems to have been confined to cases of actual violence to the person; but in later times it has been extended to constructive violence by putting in fear, and not only to cases where property has been taken or delivered under a threat of bodily violence to the party robbed, or some other person, but also where the fear has...
- A strong plea for criminal statutes which distinguish between the professional receiver and the lay receiver is found in J. Hall, Theft, Law & Society ch. 5 (2d ed. 1952). Nevertheless, few jurisdictions make the distinction which Professor Hall recommends.
- American statutes do not generally spell out the eight elements; they define the crime of robbery in different ways, often in the somewhat undetailed language used by Blackstone, Hawkins, Hale and East in defining common-law robbery, e.g., “the felonious and violent taking of goods or money from the person of another by force or intimidation.” Some statutes specify a taking from the person of another “or in his presence.” Some states, especially those which have recently enacted comprehensive criminal codes, add more detail—e.g., concerning the type of fear that will suffice. At the other extreme, a number of statutes punish robbery without defining it, leaving the definition to the common law. Almost all states distinguish between simple robbery and aggravated robbery (e.g., armed robbery), the latter carrying a heavier penalty upon conviction.
- (“Courts, however, have come to distinguish between demanding payment for the return of stolen property and returning stolen property in response to an offer of a reward. These courts, reflecting the common law, eliminate the return-for-reward mentality from criminal intent if the evidence shows that ‘the reward has been announced or is believed to have been announced before the property is possessed or agreed to be possessed’ ”).
- (the receiving “must be accompanied by a criminal intent, an intent to aid the thief, or to obtain a reward for restoring the property to the owner, or an intent to in some way derive profit from the act”).
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Chapter 2 Sources and General Limitations Part 6 12 results (showing 5 best matches)
- The common law rule that repeal of a criminal statute bars further prosecution against earlier offenders, being based on the legislature’s presumed intent, may of course be changed by an expression of legislative intent that earlier violations may still be prosecuted. civil statutes as well as criminal) providing in effect that repeal (or either repeal or amendment) of a statute shall not affect prior liability thereunder unless the repealing act expressly so provides. And in the enactment of a new comprehensive criminal code and repeal of prior substantive criminal laws, there is usually included a saving provision to the effect that crimes committed prior to the effective date of the new code are subject to prosecution and punishment under the law as it existed at the time.
- What becomes of the criminal liability of a person, who has violated a criminal statute when that statute was in force, if the statute in question is later repealed? Does the repeal operate retroactively to let him go free? Or does the repeal operate only as to future conduct, leaving past conduct to be governed by the law in effect at the time of such conduct? Does it make a difference whether the person in question has been convicted before the repeal, or whether his prosecution is then pending, or whether prosecution has not yet been commenced at the time of repeal? The same questions may be asked, though the answers may be different, in the situation where the criminal statute in question has been amended, rather than repealed, as where the amendment alters the punishment or changes the scope of the statute’s coverage.
- There is also a generally recognized simultaneous-repeal-and-reenactment exception to the common law rule. Under this exception, if what was criminal under the repealed statute is also encompassed within the new law, which perhaps carries a different offense label, then prosecution under the repealed statute is permissible.
- Some declare that a legislative change in a statute will not extinguish penalties or liabilities accrued or incurred under the old law, and others (addressed specifically to criminal cases) state that offenses under the old law shall be punished as if the repeal or amendment had not occurred. Only in a few jurisdictions are the saving statutes expressly limited to the repeal-followed-by-reenactment or changed penalty situations, though it is quite common for the saving statute or some other law to provide that if the penalty is reduced the defendant is entitled to be sentenced
- The same rules apply where the criminal statute has not been taken off the books but has been rendered ineffective by other legislation which makes what was criminal a right. Thus, absent an effective saving provision, the passage of a state public accommodations law bars prosecution for trespass of those seeking service in public accommodations and requires release of those convicted for such trespass if their convictions have not become final.
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Chapter 11 Solicitation and Attempt 19 results (showing 5 best matches)
- See J. Hall, General Principles of Criminal Law 576–86 (2d ed. 1960); G. Williams, Criminal Law: The General Part 621–32 (2d ed. 1961);
- Ryu, Contemporary Problems of Criminal Attempts, 32 N.Y.U.L.Rev. 1170, 1171–74 (1957), noting the theoretical basis upon which the old view was abandoned in both the civil law and common law.
- G. Williams, Criminal Law: The General Part 618 (2d ed. 1961).
- Cahill, Attempt, Reckless Homicide, and the Design of Criminal Law, 78 U.Colo.L.Rev. 879, 880 (2007)
- See Enker, Mens Rea and Criminal Attempt, 4 A.B.F.Res.J. 845 (1977);
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Chapter 2 Sources and General Limitations Part 7 78 results (showing 5 best matches)
- “[M]ost states have legislatively altered what might once have been considered common law offenses, creating an entirely new form of American criminal law. The impact of uniquely American cultural influences on this criminal law is perhaps one of the greatest reasons for ending the mythology of the common law state.”
- Sometimes the legislature by statute invites an administrative agency to play a part in formulating substantive criminal law. Thus, Congress may provide that the Interstate Commerce Commission may issue regulations for the safe transportation of certain substances, and further that any violation of the regulations shall be punishable by fine or imprisonment. Or, a state statute may authorize the state food board to issue regulations concerning the importation of food stuff into the state, with the further provisions that a violation of such regulations is a misdemeanor (or, perhaps, that it is a misdemeanor if the regulations so provide). The term “administrative crime” has been applied to define this type of substantive criminal law, and just as administrative law in general is a growing field of law, the administrative crime is becoming more and more important.
- For a brief history of English common law crimes, see Jackson, supra note 6 , and G. Williams, Criminal Law: The General Part § 189 (2d ed. 1961).
- applies with equal force to administrative regulations having the effect of law. Likewise, administrative rules in the criminal law field are strictly construed in the same fashion as criminal statutes,
- to report for induction into the armed services), the violation of which is criminal. Thus, there is a federal criminal statute which provides that an alien who has been ordered deported by the administrative body, and who thereafter willfully fails or refuses to depart, is guilty of a crime. Another statute provides that one ordered to report for induction by his local selective service board who knowingly fails or neglects to do so is guilty of a criminal offense. The administrative agency, by issuing an order to deport or to report for induction, in a sense sets the stage for a violation of the substantive criminal law by establishing one of the elements of the crime.
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Chapter 13 Parties; Liability for Conduct of Another Part 4 32 results (showing 5 best matches)
- Similarly, National Comm’n on Reform of Federal Criminal Laws, Final Report—Proposed New Federal Criminal Code § 1002 (1971), defines criminal facilitation as requiring: (1) knowing substantial assistance to a person intending to commit a felony; (2) that the other person commit the contemplated crime or a like or related felony; and (3) that the assistance provided be in fact employed in committing the crime.
- G. Williams, Criminal Law: The General Part 369 (2d ed. 1961).
- See G. Williams, Criminal Law: The General Part 395 (2d ed. 1961).
- 1 National Comm’n on Reform of Federal Criminal Laws, Working Papers 156 (1970).
- S. Kadish, S. Schulhofer & M. Paulsen, Criminal Law and Its Processes 635 (4th ed. 1983).
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Chapter 8 Insanity—Procedural Considerations Part 3 54 results (showing 5 best matches)
- Indeed, “[m]ental disorder among criminal defendants affects every step of the criminal justice process.”
- Whether such cases are appropriate for plea negotiations is a matter of dispute. Compare Enker, Perspectives on Plea Bargaining, in President’s Comm’n on Law Enf’t and Admin. of Justice, Task Force Report: The Courts 108, 113 (1967), with Griffiths, Ideology in Criminal Procedure, or a Third Model of the Criminal Process, 79 Yale L.J. 359, 398–99 (1970).
- Criminal Law 3 (1967);
- See A. Goldstein, The Insanity Defense ch. 11 (1967). Published criminal statistics seldom give any indication of the percentage of cases in which the insanity defense is raised. California is an exception; there, for example, in 1965, of 36,643 felony dispositions, only 195 cases (0.53%) went to trial on an insanity plea. A. Matthews, Mental Disability and the Criminal Law 28 (1970). A more recent study, based upon inquiry of judges, prosecutors and defense counsel in six states, concluded that insanity defenses were raised in 0.87%, “in the same range of findings by other studies.”
- 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. 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 three years would constitute a grave public disservice,” there is a disinclination to dismiss with prejudice unless it presently appears likely a fair trial would not later be possible.
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Chapter 3 Constitutional Limits on Power to Create Crimes Part 2 54 results (showing 5 best matches)
- 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: [1] Those which belong exclusively to the states; [2] Those which belong exclusively to the national government; [3] Those which may be exercised concurrently and independently by both; [4] 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.
- The United States Constitution provides that no person “shall be compelled in any criminal case to be a witness against himself,” 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, Even more recently, however, the privilege has been recognized as a limitation upon the permissible reach of the substantive criminal law.
- This is not to suggest, however, that a legislature may proscribe certain speech or writing merely using such labels as “obscenity” and “libel.” The question of what communications lie outside the First Amendment is itself an issue of constitutional law, and thus in the last analysis must be answered by the Supreme Court. For example, it is for the Court to decide upon the permissible reach of obscenity statutes and criminal defamation laws. Also, a criminal statute intended to deal with situations outside the First Amendment may not be drafted in such a way that it tends to limit access to constitutionally protected materials; and thus a strict liability statute on possession of obscene literature is unconstitutional because it would tend to influence booksellers to carry only those reading materials they had personally examined as to contents.
- While the prohibition on cruel and unusual punishment has sometimes been the basis for challenging action taken in the process of administering the criminal law, it also has considerable significance with respect to the permissible reach of the substantive criminal law. In this regard, the prohibition has three aspects: (1) it limits the methods which may be used to inflict punishment; (2) it limits the amount of punishment which may be prescribed for various offenses; and (3) it bars any and all penal sanctions in certain situations.
- The thrust of this substantive law aspect of the privilege against self-incrimination is that the failure to do something, such as to register or to pay a tax, may not be punished as a crime when the obligation to so act carries with it a real and appreciable hazard that the individual will thereby incriminate himself by providing information which may be used to support other criminal prosecutions. Thus one may not be convicted for willful failure to pay the wagering occupation tax or to register before engaging in the business of accepting wagers, given the facts that wagering is widely prohibited under federal and state law and that information obtained from the payment of the tax or registering is readily available to assist the efforts of state and federal authorities to enforce these other laws. Such criminal statutes, if defined solely in terms of persons who have violated other laws (e.g., statute
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Chapter 2 Sources and General Limitations Part 2 33 results (showing 5 best matches)
- Sunstein, Law and Administration After Chevron, 90 Colum. L.Rev. 2071 (1990)
- (relying on commentary to Alaska Revised Criminal Code); (relying on commentary to Arkansas Criminal Code); (relying on commentary to Delaware Criminal Code); (relying on comments of Kansas Judicial Council, on whose recommendations criminal code based); (commentary of Criminal Law Revision Commission deemed “part of the legislative history”);
- The technique of “overruling for the future” is also used sometimes in civil cases, and in civil or criminal cases not involving statutory interpretation. E.g., (involving common law doctrine of criminal law-insanity rather than interpretation of a criminal statute). State courts may, without violating 14th Amendment due process, elect either to give retroactive effect, or prospective effect only, to an overruling decision. See
- Batey, Vagueness and the Construction of Criminal Statutes—Balancing Acts, 5 Va.J.Soc.Pol’y & L. 1 (1997)
- E.g., when Colorado first set up a government, and naturally needed a criminal code, its legislative body adopted almost intact the Illinois criminal code as it then existed.
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Chapter 5 Mental States 40 results (showing 5 best matches)
- See also J. Hall, General Principles of Criminal Law ch. 4 (2d ed. 1960), and G. Williams, Criminal Law—The General Part chs. 2–3 (2d ed. 1961), for a three-fold classification into crimes of intention, recklessness and negligence. For the argument that only one form of culpability, recklessness, is needed, see
- G. Williams, Criminal Law: The General Part 157, 159 (2d ed. 1961). See also Edwards, The Criminal Degrees of Knowledge, 17 Mod.L.Rev. 294 (1954); Comment,
- Robinson, A Brief History of Distinctions in Criminal Culpability, 31 Hastings L.J. 815 (1980)
- Criminal Law, 68 Okla.L.Rev. 497 (2016)
- Which unfortunately is often not the case when the doctrine is developed by case law. See
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Chapter 18 Confinement Part 2 40 results (showing 5 best matches)
- Kidnapping is also an important crime in the federal criminal law. The discussion which follows centers around the general kidnapping statute, commonly known as the “Lindbergh law,” and the much more recent International Parental Kidnapping Crime Act of 1993.
- With the virtual disappearance of common law crimes in this country, the offense of false imprisonment came close to disappearing with it. By the time the Model Penal Code was promulgated, only a small minority of states had such a statutory offense. It is not entirely clear why this was so, but apparently it manifested a pervasive legislative judgment that wrongdoing of this general type need not be addressed by the criminal law except as it might fall within such offenses as kidnapping and assault. The Code drafters obviously disagreed with that conclusion and felt that substantial interferences with liberty, even when not attended by physical harm or even the risk thereof, were a proper subject for the criminal law. Hence there was included in the Code the offense of false imprisonment, simply defined as the situation where one “knowingly ..., as most of the jurisdictions thereafter adopting new criminal codes included an offense along those lines, and thus today over two-thirds...
- The crime of kidnapping was not a significant offense at common law, but in its American statutory form came to be a quite broadly-defined offense carrying high penalties. The Model Penal Code approach to that situation was “designed to effect a major restructuring of the law of kidnapping” carrying lower punishment. The emphasis herein is upon the extent to which reform of the law of kidnapping along those lines has occurred in the state criminal codes.
- For the most part, the common law did not proscribe the making of verbal threats, and in addition a separate crime, called criminal coercion
- What kinds of threats meet that criterion? The Code lists four categories of threats which can suffice for criminal coercion when done “with purpose unlawfully to restrict another’s freedom of action to his detriment.”criminal offense; (2) accuse anyone of a criminal offense; (3) expose any secret tending to subject any person to hatred, contempt or ridicule, or to impair his credit or business repute; or (4) take or withhold action as an official, or cause an official to take or withhold action.
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Chapter 3 Constitutional Limits on Power to Create Crimes Part 5 26 results (showing 5 best matches)
- The proposed new federal criminal code expressly provides that the “existence of federal jurisdiction over an offense shall not, in itself, prevent any state or local government from exercising jurisdiction to enforce its own laws applicable to the conduct in question.” National Comm’n on Reform of Federal Criminal Laws, Final Report—Proposed New Federal Criminal Code § 206 (1971). As to the resulting risk of prosecutions on both the state and federal level, this is dealt with by (a) authorizing federal agencies “to decline or discontinue federal enforcement efforts whenever the offense can effectively be prosecuted by nonfederal agencies and it appears that there is no substantial Federal interest in further prosecution or that the offense primarily affects state, local or foreign interests,” ...b) making a previous state prosecution a bar to a federal prosecution for the same conduct under certain circumstances, one exception being where the state law “is intended to prevent a...
- As distinguished from nonenforcement, in the sense of a state’s failure to criminalize certain activity proscribed by federal criminal law (e.g., state medical marijuana laws). As noted in , “Congress’s preemption power is not, in fact, coextensive with its substantive powers, such as its authority to regulate interstate commerce. The preemption power is constrained by the Supreme Court’s anti-commandeering rule. That rule stipulates that Congress may not command state legislatures to enact laws nor order state officials to administer them.” See
- (“When the California Legislature enacted the three strikes law, it made a judgment that protecting the public safety requires incapacitating criminals who have already been convicted of at least one serious or violent crime. Nothing in the Eighth Amendment prohibits California from making that choice.”).
- (sustaining under the federal Civil Rights Act criminal prohibition of conspiracies to injure any citizen in the exercise of “any right or privilege secured * * * by the Constitution or laws of the United States” an indictment charging conspiracy to injure Negroes in the exercise of the right to travel freely to and from the State of Georgia).
- (criminal prosecution for violating state licensing statute requiring peddlers of wares made outside state to obtain license); (criminal prosecution for violating state health statute in selling for food animal slaughtered out-of-state and not inspected and certified in state, where effect of statute was to make it impossible for animals slaughtered outside state to be sold in state); (criminal prosecution for violating state depression-born statute forbidding importation of nonresident indigents into state); (criminal prosecution for violating state racial segregation statute making it a crime for interstate bus passenger to refuse to segregate);
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Index 74 results (showing 5 best matches)
Table of Contents 53 results (showing 5 best matches)
Chapter 10 Justification Part 2 52 results (showing 5 best matches)
- It might be argued that intentional homicide is a moral wrong, even when done to save life, so that necessity cannot justify intentional killings, yet the law does not and should not undertake to punish all acts that might be considered immoral. G. Williams, Criminal Law: The General Part § 237 (2d ed. 1961).
- See § 5.3 for a discussion of motive in criminal law.
- 2 P. Robinson, Criminal Law Defenses § 123(c)(2) (1984)
- 2 P. Robinson, Criminal Law Defenses § 145 (1984)
- Indeed, it may generally be said that “in most cases of civil disobedience a lesser evils defense will be barred. This is because as long as the laws or policies being protested have been lawfully adopted, they are conclusive evidence of the community’s view on the issue.”
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Chapter 8 Insanity—Procedural Considerations Part 2 27 results (showing 5 best matches)
- The Court noted: “Here, in contrast, the State asserts that because Foucha once committed a criminal act and now has an antisocial personality that sometimes leads to aggressive conduct, a disorder for which there is no effective treatment, he may be held indefinitely. This rationale would permit the State to hold indefinitely any other insanity acquittee not mentally ill who could be shown to have a personality disorder that may lead to criminal conduct. The same would be true of any convicted criminal, even though he has completed his prison term. It would also be only a step away from substituting confinements for dangerousness for our present system which, with only narrow exceptions and aside from permissible confinements for mental illness, incarcerates only those who are proved beyond reasonable doubt to have violated a criminal law.”
- “Almost every State that has considered the question under its Constitution has concluded that due process of law does not require that the prosecution assume the burden of proving a criminal defendant’s criminal responsibility.”
- Criminal Law 41 (1925).
- Criminal Law 773 to 776 (1962).
- 2 P. Robinson, Criminal Law Defenses § 173(g) (1984)
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Chapter 4 Criminal Jurisdiction Part 3 26 results (showing 5 best matches)
- For other discussions of jurisdiction in Indian country, see especially W. Canby, American Indian Law chs. 7, 8 (5th ed. 2009); and also
- National Comm’n on Reform of Federal Criminal Laws, Final Report-Proposed New Federal Criminal Code § 708 (1971). This is much like the Model Penal Code test, text at note 449
- “Bank robbery, for example, is treated here as an auxiliary offense [i.e., one which only serves to assist local law enforcement] although an argument can be made that the offense is designed to protect a particular Federal interest—namely, funds that are Federally-insured or otherwise Federally-connected.” 1 National Comm’n on Reform of Federal Criminal Laws, Working Papers 34 (1970).
- . For more extended discussion of this statute, see W. Canby, American Indian Law at 139–148 (5th ed. 2009);
- While the Tribal Law and Order Act of 2010 adopted provisions to increase cooperation between tribes and the federal government and to provide greater resources to tribal governments, the Act emphasizes that nothing therein “confers on an Indian tribe criminal jurisdiction over non-Indians.”
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Chapter 3 Constitutional Limits on Power to Create Crimes 37 results (showing 5 best matches)
- The constitutional limits on substantive criminal law are few compared with those in the realm of criminal procedure. This situation is decried in
- Indeed, it is “questions of process” which have largely “been shaping the Supreme Court’s jurisprudence at the intersection of the Constitution and substantive criminal law for at least seventy-five years.” Bilionis,
- Hindes, Morality Enforcement Through the Criminal Law and the Modern Doctrine of Substantive Due Process, 126 U.Pa.L.Rev. 344 (1977)
- Holder v. Humanitarian Law Project, 561 U.S. 1, 130 S.Ct. 2705, 177 L.Ed.2d 355 (2010)
- McCabe, State Constitutions and Substantive Criminal Law, 71 Temp.L.Rev. 521 (1998)
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Chapter 1 Introduction and General Considerations Part 5 62 results (showing 5 best matches)
- Consider also the common law criminal forfeiture, reestablished in the federal system by . The forfeiture arises out of the criminal prosecution and conviction, and, as at common law, the defendant is entitled to notice, trial and a special jury finding on the factual issues surrounding the declaration of forfeiture. See
- Ibid. Various tests have been used to classify proceedings to recover statutory penalties. If the statute provides for recovery by indictment or information it is criminal; otherwise it is civil. If the state sues it is criminal; if a private person it is civil. If the penalty goes to the state it is criminal; if to a private party it is civil. If the statute uses the term “suit” or “action” or “as debts of like amount are recovered” it is civil; if it speaks in terms of “indictment” or “prosecution” it is criminal. If the statute also provides regular criminal punishment it is criminal; if not it is civil. See Comment, supra note 414 , at 1096–97. The note, finding such tests somewhat unsatisfactory, suggests that the nature of the prohibited conduct (whether the sort normally considered criminal) and the seriousness of the penalty should have a bearing on the problem.
- Thus the federal anti-trust law, et seq. provides for criminal punishment for violation,
- (because Colorado adopted the common law of England as it existed prior to 1607, criminal contempt, a crime in England before 1607, is a common law crime in Colorado).
- Allen, Structuring Jury Decisionmaking in Criminal Cases: A Unified Constitutional Approach to Evidentiary Devices, 94 Harv.L.Rev. 321 (1980)
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Chapter 16 Physical Harm and Apprehension Thereof Part 2 63 results (showing 5 best matches)
- Shen, Mind, Body, and the Criminal Law, 97 Minn.L.Rev. 2036, 2112 (2013)
- The question arises: on principle, should criminal assault be defined in terms of attempted battery, or of intentional successful frightening, or of both? One who fires at another with intent to hit him, though he misses, is, of course, a far more dangerous person than his milder counterpart who goes about intending only to frighten and not to injure. Therefore, the criminal law properly first singles out for punishment the man of violence who attempts a battery. Of course, the person who successfully frightens others, though not so bad a person as the unsuccessful attacker, is not altogether admirable—so that the view of the majority of states, which include him in the net comprising the crime of assault, is not necessarily wrong, though the minority view is to leave such minor bad conduct to the civil law to discourage. But that limitation has been rejected in most of the modern criminal codes.
- No state has adopted the model law in its entirety. However, as the remaining states proceeded to enact their own criminal statutes dealing with stalking, some provisions or definitions from the model act were frequently incorporated into these laws. As those states with preexisting stalking laws sought by amendment to make them more effective, there was again considerable reliance upon the model law. But (as discussed herein), the resulting product of the several states’ labors was by no means uniform, and thus there is considerable variation in how these laws currently describe the requisite conduct and its necessary consequences and accompanying mental state.
- which were common-law misdemeanors, Simple assault and simple battery are punishable (generally as misdemeanors) under all the American criminal codes, although in some states the appropriate statute contains no definition of these crimes, leaving the matter to be determined by reference to the common law.
- Absent a controlling statutory definition of battery, the law is not so clear as to whether one is guilty of a battery where he injures another as a result of his commission of an unlawful act (e.g., a misdemeanor or ordinance violation), where he intends no injury and his conduct does not amount to criminal negligence. Some cases have held that, if the defendant’s wrongful conduct is Conversely, others have held, also without regard to this same distinction, that there is no liability for injury resulting from an unlawful act, without an intent to injure or criminal negligence.
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Chapter 12 Conspiracy Part 3 27 results (showing 5 best matches)
- (“the strength of the doctrine has affected and warped related doctrines in the law on corporate and individual responsibility for wrongdoing”); (“the unchecked growth of the intracorporate conspiracy doctrine from its proper place in antitrust and sovereign immunity cases to swallow criminal law * * * claims misplaces employee and employer incentives in contravention of agency law, criminal law, * * * and public policy”).
- Developments in the Law—Criminal Conspiracy, 72 Harv.L.Rev. 920, 924–25 (1959)
- Developments in the Law—Criminal Conspiracy, 72 Harv.L.Rev. 920, 974 (1959)
- Criminal Law § 1604 (12th ed. 1932).
- Criminal Law § 1604 (12th ed. 1932), a limitation which others have criticized, e.g., R. Perkins & R. Boyce, Criminal Law, 690 (3d ed. 1982), and which was not recognized in the cases from the very beginning,
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Chapter 9 Excuses and Other Conditions Part 4 42 results (showing 5 best matches)
- , Comment (1985); J. Hall, General Principles of Criminal Law, Ch. 12 (2d ed. 1960); G. Williams, Criminal Law: The General Part ch. 18 (2d ed. 1961);
- On the question of whether the criminal law ought to recognize a separate coercive persuasion defense, compare Delgado, Ascription of Criminal States of Mind:
- The defense is sometimes called “compulsion” or “coercion,” although the latter term is sometimes reserved for the situation where a wife is compelled by her husband to do an act which the criminal law forbids.
- —not because he has the defense of duress, but rather because he has done no “act,” defined in the criminal law as a “willed movement.” See § 6.1(c).
- G. Williams, Criminal Law: The General Part § 246 (2d ed. 1961).
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Chapter 19 Theft Part 2 20 results (showing 5 best matches)
- For more on this history, see G. Fletcher, Rethinking Criminal Law chs. 1–2 (1978); J. Hall, Theft, Law and Society chs. 1–4 (2d ed. 1952);
- 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,
- Ibid., pointing out, however, that the rule that the husband owned his wife’s property, though she did not own his, stands in the way of convicting a husband of stealing his wife’s property but does not preclude conviction of the wife for stealing her husband’s property. Her immunity, it is suggested in somewhat flowery fashion, may have been based on “an implicit judicial conclusion that it would be both inappropriate and unwise to allow the drastic sanctions of the criminal law to become a pawn in an intimate and volatile relationship.”
- Hall, Theft, Law and Society, 54 A.B.A.J. 960, 962 (1968): “ ‘Asportation’ is an extremely precise test to differentiate the attempt from the consummated crime; and although the difference between attempt and mere preparation is not a precise one, common law formulas and case law provide much help in determining that question.”
- (but then concluding that as to vehicle-taking statute, which can be violated even with intent to temporarily deprive, it necessary that there be intent to permanently deprive or vandalizing of vehicle, as otherwise intrusion upon other spouse’s interest is not substantial, making the situation “a domestic and not a criminal one”).
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Chapter 20 Other Personal Property Crimes Part 3 27 results (showing 5 best matches)
- See J. Hall, Theft, Law and Society ch. 5 (2d ed. 1952); Chamberlain, Anti-fence Legislation, Blakey & Goldsmith, Criminal Redistribution of Stolen Property: The Need for Law Reform, 74 Mich.L.Rev. 1511 (1976) (discussing the sophisticated fencing systems now in operation and what changes in the substantive law are necessary to deal with them effectively).
- The common-law misdemeanor of extortion consists of the corrupt taking of a fee by a public officer, under color of office, where no fee is due, or not so large a fee is due, or the fee is not yet due. Modern statutes continue to make such conduct by public officials criminal, generally under the name of “extortion”;
- It is a general principle of criminal law—applicable to robbery as it is to other crimes—that the defendant’s conduct and his state of mind must concur.
- The rule of statutory interpretation which calls for a strict construction of criminal statutes, see § 2.2(d), is, of course, an argument for construing “stolen” in the narrower way.
- disclosed that one-half of one per cent of all checks written in Nebraska were bad checks in the broad sense of forgeries, no-account checks and insufficient-funds checks. Of these bad checks, 90% were insufficient-fund checks, 9% were no-account checks, and only 1% were forgeries. What is true in Nebraska is doubtless indicative of the situation elsewhere in America: forgery of checks is a far less important factor in the disruption of commercial activity than other forms of criminal conduct relating to checks.
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Chapter 10 Justification 23 results (showing 5 best matches)
- Lave, Shoot to Kill: A Critical Look at Stand Your Ground Laws, 67 U.Miami L.Rev. 827, 850 (2013)
- 2 P. Robinson, Criminal Law Defenses § 131(c)(1) (1984)
- 2 P. Robinson, Criminal Law Defenses § 131(c) (1984)
- However, Model Penal Code § 3.04 permits the use of force in self-protection on the basis of the user’s belief (as opposed to the prevailing requirement of reasonable belief) “that such force is immediately necessary for the purpose of protecting himself against the use of unlawful force,” but § 3.09(1) provides that the defense is unavailable if “the actor’s belief in the unlawfulness of the force * * * is erroneous” and “his error is due to ignorance or mistake as to the provisions of the Code, any other provision of the criminal law or the law governing the legality of an arrest or search.” This exception is based upon the general principle “that knowledge of illegality is not ordinarily an element of an offense.” Model Penal Code § 3.04, Comment at 41 (1985).
- Model Penal Code § 3.04(1), requiring only that the actor “believes” that the use of force is necessary. See Model Penal Code § 3.04, Comment at 36 (1985); G. Williams, Criminal Law: The General Part, § 73 at 208 (2d 1961), arguing that the defendant lacks moral guilt under such circumstances. See also
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Chapter 19 Theft Part 4 36 results (showing 5 best matches)
- There is a split of authority as to whether a false statement of law (rather than of fact) will do for false pretenses—as where one induces another to buy stock by making the representation, which he knows to be false, that the stock is not subject to assessment. No doubt a clever criminal can accomplish a fraud as well by misrepresenting the law as by misrepresenting a fact; so that the better view is that intentional misrepresentations of law, done with intent to defraud, will do for the crime of false pretenses.
- that property may be the subject of theft even though the “victim” is a person whose interest in the property is unlawful. This is as it should be. “It is inconsistent with the objectives of the criminal law of theft to permit one who wrongfully appropriates wealth to escape from liability merely because the victim of the misappropriation has also incurred criminal liability of forfeiture of his rights with respect to the property.”
- And a clever criminal can defraud his victim about as well with a false promise as with other types of false statement of fact. —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, The modern prevailing view, by case law
- 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.
- The question of whether several related takings constitute one big larceny or several smaller larcenies arises in criminal-law settings other than with respect to the grand-petit larceny distinction.
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Chapter 3 Constitutional Limits on Power to Create Crimes Part 3 31 results (showing 5 best matches)
- See Graham, Burden of Proof and Presumptions in Criminal Cases, 45 Crim.L.Bull. art. 6 (Winter 2009);
- , 105 Eng.Rep. 1026 (K.B. 1816). See G. Williams, Criminal Law: The General Part § 293 (2d ed. 1961).
- “Direct” is used here in the sense that the claim is simply that there is a violation of due process because the law is not reasonably related to the public welfare, and is to be distinguished from cases in which state criminal statutes are alleged to violate due process because of some provision of the Bill of Rights which is applicable to the states through the Fourteenth Amendment.
- “Throughout the web of the English Criminal Law one golden thread is always to be seen, that it is the duty of the prosecution to prove the prisoner’s guilt.” Woolmington v. Director of Public Prosecutions [1935] A.C. 462, 481. The Supreme Court has held that the requirement of proof beyond a reasonable doubt is a matter of due process.
- Thus, a statute prohibiting threats against the President, although it makes criminal a form of pure speech, is constitutional because of the national interest in protecting the chief executive, although First Amendment considerations require that the statute not be interpreted as covering mere “political hyperbole,” , and a statute making it a federal crime to “knowingly provide[e] material support or resources to a foreign terrorist organization” does not violate the First Amendment, even as applied to plaintiff’s conduct of training some such organizations on how to use international law to resolve disputes, as it foreseeable that even such assistance would provide such organizations with information and techniques that could be used as part of a broader strategy to promote terrorism, and government’s interest in combating terrorism is an urgent objective of the highest order,
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Chapter 10 Justification Part 3 39 results (showing 5 best matches)
- applies directly to change this state’s fleeing-felon rule fails because it is premised upon the notion that the United States Supreme Court can require a state to criminalize certain conduct. Clearly, the power to define conduct as a state criminal offense lies with the individual states, not with the federal government or even the United States Supreme Court. While the failure to proscribe or prevent certain conduct could possibly subject the state to civil liability for its failure to act, or for an individual’s actions, if that state, for whatever reason, chooses not to criminalize such conduct, it cannot be compelled to do so”); Stith-Cabranes,
- 2 P. Robinson, Criminal Law Defenses § 131(e)(2) (1984)
- 2 P. Robinson, Criminal Law Defenses § 142(f)(4) (1984)
- It is a basic principle of criminal law that one who induces another to commit a crime is himself guilty of the crime, as where
- 2 P. Robinson, Criminal Law Defenses § 142(f)(5) (1984)
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Chapter 2 Sources and General Limitations Part 4 12 results (showing 5 best matches)
- At common law, it was the practice of courts to refuse to enforce legislative acts deemed too uncertain to be applied. A similar approach was taken by the United States Supreme Court in some early cases where the separation of powers doctrine was invoked to support the proposition that Congress, by the enactment of an ambiguous statute, could not pass the law-making job on to the judiciary. The Court has also reversed convictions under uncertain criminal laws on the basis that the accused was denied his right to be informed “of the nature and cause of the accusation” as guaranteed by the Sixth Amendment. the due process clauses of the Fifth Amendment (when a federal statute is involved) and the Fourteenth Amendment (when a state statute is involved) require that a criminal statute be declared void when it is so vague that “men of common intelligence must necessarily guess at its meaning and differ as to its application.”
- This risk of abuse in the administration of the law is present in two forms when the meaning of a criminal statute is unclear. One risk is that the law may be arbitrarily applied by police and prosecution officials, which the Court has characterized as “the more important aspect of vagueness doctrine.” and has evidenced equal concern about laws which furnish convenient tools for discriminatory enforcement by prosecuting officials. The other risk is that the law may be so unclear that a trial court cannot properly instruct the jury. A statute is unconstitutionally vague when it leaves judges and jurors free to decide, without any legally fixed standards, what is prohibited and what is not in each particular case.
- In some of the cases about unconstitutional indefiniteness, the legislature has not extended its regulation via enactment of criminal statutes into areas protected by the Constitution but has merely left uncertain exactly what is regulated. That is, even giving the vague statute a most generous reading, the legislature could (had it used clear language) proscribe all such conduct. The vice is not legislative overreaching, but merely the lack of fair warning to the public and the lack of standards for those who must enforce and apply the law.
- This is not to say, however, that a penal statute is void merely because it grants some discretion to those who administer the law. The criminal law is full of instances in which the legislature has passed on to the administrators some responsibility for determining the actual boundaries of the law, as with the frequent occasions when a jury is asked to determine whether the defendant acted “reasonably” in some respect.
- the same principle applies to common law crimes ) Ordinarily, a challenge to the statute in this regard is raised in the context of a criminal prosecution, but under limited circumstances an injunction may be obtained barring a prosecution under an unconstitutionally uncertain statute.
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- Id., quoting J. Hall, General Principles of Criminal Law 61 (2d ed. 1960). See, e.g., (distinguishing Rogers, court says that “by adopting the new crime exception to the exclusionary rule,” thus “deviating from numerous cases by our appellate courts recognizing the validity and utility of the common-law right to resist an unlawful entry into one’s own home,” that adoption in instant case cannot be applied to defendant here, for that “would expose the defendant, without fair notice, to criminal liability for conduct that was sanctioned by the common law at the time of the incident”).
- See J. Hall, General Principles of Criminal Law 63 (2d ed. 1960).
- J. Hall, General Principles of Criminal Law 61 (2d ed. 1960).
- (where consensual oral copulation among adults no longer criminal, broad saving statute construed as not allowing prosecution); (where transportation for purposes of prostitution no longer criminal unless “for pecuniary gain,” application of saving statute to allow prosecution under old, broader law would be inconsistent with legislative intent).
- (interpreting such a statute to mean defendant “did not incur criminal liability and a criminal penalty until the conclusion of his trial,” and thus can only receive lower sentence per pretrial amendment).
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Chapter 1 Introduction and General Considerations Part 2 23 results (showing 5 best matches)
- opinion, the Court explained why the reasonable-doubt standard is indispensable in American criminal procedure. The basic point, of course, is that it is “a prime instrument for reducing the risk of convictions resting on factual error.” There are several reasons, the Court noted, for reducing the margin of error in criminal cases in this way: (1) because the individual defendant has at stake an interest of immense importance, both in terms of the possibility that he will lose his liberty and that he would be stigmatized by the conviction; (2) because the moral force of the criminal law would be diluted if the public was in doubt whether innocent men were being convicted; and (3) because every individual going about his ordinary affairs should have confidence that the government cannot judge him guilty of a criminal offense without convincing the fact-finder of his guilt with utmost certainty.
- This Book deals with several possible defenses which a criminal defendant may use to avoid conviction. Some of these are substantive law defenses which negative guilt by cancelling out the existence of some required element of the crime. For example, certain kinds of mistake of fact, mistake of law, intoxication, or insanity are properly viewed as proof that the defendant did not have the mental state required for the crime charged. Other defenses, such as self-defense and necessity, do not negative any of the elements of the crime but instead go to show some matter of justification or excuse which is a bar to the imposition of criminal liability. In addition to these defenses of general applicability, there are also substantive law defenses applicable to individual crimes, in which case the common practice is for the statute defining the crime to contain an exception or proviso setting forth the defense.
- principle also applies to elements which serve to distinguish a more serious crime from a less serious crime (as compared to elements which serve to distinguish criminal from noncriminal conduct) was settled by the Supreme Court in The defendant there had been convicted of murder in Maine despite his defense of provocation. Under Maine law, as the court explained,
- So too, where “the Legislature did not exceed its constitutional authority in redefining [a possession-of-controlled-substances law] not to require proof that the defendant knew of the illicit nature of the controlled substance,” it follows that “the Legislature did not violate due process by defining lack of such knowledge as an affirmative defense.” Thus, the burden of proof as to the “defense” of alibi may not be placed upon the defendant, for alibi of necessity negates defendant’s participation in the conduct defined as criminal. Similarly, there is authority that where the law of criminal homicide is defined in terms of an “unlawful” killing, the burden of proof as to
- , objected the dissenters, is that it “allows a legislature to shift, virtually at will, the burden of persuasion with respect to any factor in a criminal case, so long as it is careful not to mention the nonexistence of that factor in the statutory regarding the way in which crimes may be defined. Thus, if a crime defined by law as consisting of elements standing alone, a criminal offense.
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Chapter 9 Excuses and Other Conditions Part 5 30 results (showing 5 best matches)
- Elsewhere this has been accomplished by enactment of a provision stated in subjective terms, either by merely incorporating existing case law or by requiring that the defendant not be predisposed, that defendant would not otherwise have committed the crime, that defendant was not ready and willing to commit the offense, that defendant would not otherwise have intended to commit it, or that the defendant not have originated the criminal purpose.
- 1 National Comm’n on Reform of Federal Criminal Laws, Working Papers 324 (1970).
- (because criminal code says entrapment defense applicable to criminal offenses, it not applicable in instant case, where charge is a motor vehicle violation not an offense under the criminal code).
- 1 National Comm’n on Reform of Federal Criminal Laws, Working Papers 303–28 (1970); L. Tiffany, D. McIntyre & D. Rotenberg, Detection of Crime 265–72 (1967); ; Williams, The Defense of Entrapment and Related Problems in Criminal Prosecution, 28 Ford.L.Rev. 399 (1959);
- , “if the law wants to deter private sting operations, real or phony, the way to do that is ‘by imposing criminal liability on private parties who encourage crimes (via solicitation, conspiracy, and complicity),’ * * * rather than by letting another guilty person—the object of the successful sting—get away with his crime.”
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Chapter 2 Sources and General Limitations Part 9 35 results (showing 5 best matches)
- Some risk of arbitrary enforcement is present, however, even with the most carefully drafted statute. See Remington & Rosenblum, The Criminal Law and the Legislative Process, 1960 U.Ill.L.F. 481, 488–89.
- , holding that a retroactive state statute affecting civil, not criminal, rights and remedies is not an ex post facto law. Thus deportation, disbarment and criminal sexual psychopath proceedings, not being “criminal” matters, do not involve the ex post facto prohibition.
- , supports this conclusion, as the Court there would not afford the state court an opportunity to narrow the statute because there was no readily apparent construction which suggested itself as a vehicle for rehabilitating the statute in a single prosecution. Cf. J. Hall, General Principles of Criminal Law 41–44 (2d ed. 1960).
- Some federal statutes are defined in terms of interference with another’s constitutional rights, in which case “each statute’s general terms incorporate constitutional law by reference.” , the Court rejected the court of appeals’ position that criminal liability under such a statute may be imposed only if the constitutional right said to have been violated is first identified in a decision of the Supreme Court (as compared to the lower courts), and only when the right has been held to apply in a factual situation “fundamentally similar” to the one at bar.
- (commitment under Kansas Sexually Violent Predator Act not “punishment” within meaning of ex post facto prohibition, as such commitment does not implicate retribution or deterrence, the two primary objectives of criminal punishment, and though statute requires a prior conviction or charge, it “does not affix culpability for prior criminal conduct,” but instead merely used prior crimes “solely for evidentiary purposes”); (on conviction of violating child support act, restitution order covering obligations that accrued before criminal statute enacted not a violation of ex post facto clause, as restitution not “punishment”).
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Chapter 6 Acts; Concurrence and Consequences Part 3 30 results (showing 5 best matches)
- As to causation-in-fact, the two situations are exactly alike: in torts, which necessarily require a bad result to the plaintiff, the defendant’s conduct must actually cause the result; in criminal law, as to those crimes requiring a bad result, the defendant’s conduct must similarly actually cause the result.
- This hypothetical case, involving foreseeable risk to a single person only, is presented in G. Williams, Criminal Law: The General Part § 36 (1953), which presents a more complete discussion than § 50 (2d ed. 1961).
- reason why causation by giving an incentive should not receive wider recognition in the criminal law.” J. Hall, supra note 242 (defendant guilty of first degree murder, though suicide not criminal, on ground that he “administered” the poison); (defendant not guilty, on ground suicide not a crime and therefore urging or aiding another to commit suicide not criminal); , which provides that a person may be convicted of criminal homicide for causing another to commit suicide if he purposely does so by force, duress or deception.
- Law of Homicide, 12 So.Cal.L.Rev. 19, 27 (1938), concludes that for criminal homicide liability
- (“In light of the scholarly literature, our case law, and case law from foreign jurisdictions, we hold the ‘legal cause’ in criminal cases differs from and is narrower than, ‘legal cause’ in tort cases,” and thus defendant’s act of leaving loaded gun unsecured at home not legal cause of bodily harm to classmate of child living with defendant who found gun and took it to school, where it accidentally discharged).
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Chapter 17 Rape 30 results (showing 5 best matches)
Title Page 3 results
Chapter 14 Murder 25 results (showing 5 best matches)
- 3 J. Stephen, A History of the Criminal Law of England, 22 (1883).
- (unintended death from shock resulting from commission of statutory rape is not murder, since statutory rape, though a felony, is not a common-law felony); see 185 (sale of liquor, though a felony, “is only criminal because prohibited by statute. It is not a common-law felony”).
- (concluding that the harsh common law felony-murder rule is only a myth); (“the felony murder rule as a valid doctrine of English common law was utilized in few criminal trials, and its use was surprisingly brief”).
- 185 (sale of liquor “is not inherently criminal [i.e., is not ] * * * is what the law terms an act
- “How can anyone * * * have a criminal charge lodged against him for the consequences of the lawful conduct of another person? The mere statement of the question carries with it its own answer.” cannot escape criminal liability for
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Center Title 1 result
Chapter 18 Confinement 19 results (showing 5 best matches)
- Perkins & Boyce, Criminal Law (3d ed. 1982).
- . The Act looks to state family law for purposes of determining “parental rights,” and thus it is not necessary that the defendant’s conduct was in violation of the state’s criminal law. cannot be convicted of parental kidnapping” under state law no bar to defendant’s conviction under IPKCA, as family law of the state “recognizes both parents’ equal rights to custody of their children”).
- Also, in the intervening years other kidnap-like offenses have been adopted as a part of the federal criminal law. Included is the most recent, the international parental kidnapping statute,
- See Bomar, The Lindbergh Law, 1 Law & Contemp.Probs. 435 (1934); Finley, The Lindbergh Law, 28 Geo.L.J. 908 (1940); Fisher & McGuire, Kidnapping and the So-Called Lindbergh Law, 12 N.Y.U.L.Rev. 646 (1935).
- present this may make out some other offense, such as felonious restraint, see § 18.33(a), or criminal coercion, see § 18.3(e). Indeed, in some states what the Model Penal Code characterizes as “felonious restraint” is simply a higher grade of the offense which the Code denominates as “false imprisonment.”
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Chapter 17 Rape Part 2 29 results (showing 5 best matches)
- Criminal Law 205 (3d ed. 1982).
- Barry, Spousal Rape: The Uncommon Law, 66 A.B.A.J. 1088 (1980)
- Goodwin, Law’s Limits: Regulating Statutory Rape Law, 2013 Wis.L.Rev. 481
- provides that “[i]n all criminal prosecutions, the accused shall enjoy the right . . . to be confronted with the witnesses against him; [and] to have compulsory process for obtaining witnesses in his favor.”
- Leonard, Towards a Legal History of American Criminal Theory: Culture and Doctrine from Blackstone to the Model Penal Code, 6 Buff. Crim. L. Rev. 691 (2003)
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Chapter 3 Constitutional Limits on Power to Create Crimes Part 4 25 results (showing 5 best matches)
- Nineteen states proscribe cruel “or” unusual punishment; 22 prohibit cruel “and” unusual punishment; and 6 prohibit only “cruel” punishment. S. Rubin, The Law of Criminal Correction 423 (2d ed. 1973).
- That Amendment also provides that Congress shall make no law “respecting an establishment of religion,” and thus a criminal statute may also be held unconstitutional because it is intended to promote a particular kind of religion. See
- (amended National Firearms Act, providing that no information or evidence provided in compliance therewith may be used in criminal proceedings against applicant or registrant for violation of law occurring prior to or concurrently with filing of application or registration, and barring the compiling of records containing the information or evidence, does not violate the self-incrimination clause).
- supra, and similar cases, the Court observed, “have nothing to do with an across-the-board criminal prohibition on a particular form of conduct.”
- Criminal Procedure § 24.5 (6th ed. 2017).
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Chapter 19 Theft 12 results (showing 5 best matches)
- For this basic premise of the criminal law, see § 6.3.
- (sufficient evidence of defendant’s stealing women’s sportswear from store though she reentered store shortly thereafter and threw the clothing beneath a rack). This is but an aspect of the broad principle of criminal law that a subsequent wish on the part of the criminal that he had not committed his crime constitutes no defense.
- .(“A renter’s decision to allow a person who is not a permitted driver according to the rental agreement to drive a rental vehicle may be a breach of that agreement, but it does not also result in a violation of criminal law”).
- , the defendant converted another’s property in his possession honestly believing, as a result of advice of counsel, that the statute which took ownership away from him and put it in the other was unconstitutional; he was held guilty of embezzlement. This view is properly criticized in Model Penal Code § 223.1, Comment (1980). Of course, one who converts what he knows to be another’s property in ignorance of the law which punishes embezzlement is nevertheless guilty thereof, for ignorance of the law which one violates is no defense. But a mistake of law which negatives the mental element which the crime requires is a defense.
- affirmed, on the ground that the criminal intent coexisted with the finding); Rex v. Hudson
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Chapter 21 Real Property Crimes Part 2 21 results (showing 5 best matches)
- Criminal Law 771 (1997), in discussing the Model Penal Code’s definition, which in the Code itself is so classified.
- (if “the title was in dispute, Gornick would not be guilty of a criminal trespass,” as the “gist of the offense of criminal trespass is a purposeful act of trespass on land not one’s own,” so if “a person is acting under a bona fide claim of right, albeit ill-founded, he is not guilty of a crime”); (“Criminal intent is an element of the statutory offense of trespass, even though the statute is silent as to intent”).
- . However, as noted earlier, some states have a special variety of criminal trespass in which a criminal or other bad objective is the requisite mental state, either alone or with knowledge that the entry or remaining was unlawful.
- Model Penal Code § 220.1, Comment at 25 (1980). They contrast the scheme under a proposed revision of the federal criminal code, where understandably no intent-to-defraud variety of arson was included because the cumulative sentences available for the other possible charges, reckless endangering and theft by fraud, would suffice.
- (term “lawful order” in Seattle criminal trespass ordinance makes ordinance constitutionally invalid because of vagueness, as no indication what would be valid reason for such an order).
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Chapter 9 Excuses and Other Conditions Part 2 26 results (showing 5 best matches)
- R. Schopp, Automatism, Insanity, and the Psychology of Criminal Responsibility (1991); Beck, Voluntary Conduct: Automatism, Insanity and Drunkenness, 9 Crim.L.Q. 315 (1967); Blackwell, Automatism and Amnesia, 79 S.A.L.J. 16 (1962); Campbell, Psychological Blow Automatism: A Narrow Defence, 23 Crim.L.Q. 342 (1981); Automatism and Amnesia, 79 S.A.L.J. 16 (1962); Edwards, Automatism and Social Defence, 8 Crim.L.Q. 258 (1966); Elliott, Automatism and Trial by Jury, 6 Melbourne, U.L.Rev. 53 (1967); Gault, Dissociative State Automatism and Criminal Responsibility, 23 Crim.L.Rev. 329 (2004); Holland, Automatism and Criminal Responsibility, 25 Crim.L.Q. 95 (1982); Howard, Automatism and Insanity, 4 Sydney L.Rev. 36 (1962); Jennings, The Growth and Development of Automatism as a Defence in Criminal Law, 2 Osgoode Hall, L.J. 370 (1962); ...S.A.L.J. 338 (1962); Sullivan, Self Induced and Recurring Automatism, 123 New.L.J. 1093 (1973); Williams, Automatism, in Essays in Criminal Science (G....
- realized the way the term disease of the mind is used in the criminal law and tailored their opinions to that use.”
- Johnson, Genetic Technology and Its Impact on Culpability for Criminal Actions, 46 Clev.St.L.Rev. 443 (1998)
- Symposium on Multiple Personality Disorder and Criminal Responsibility, 10 S.Cal.Interdisc.L.J. 179 (2001)
- “Most of the case law on this subject comes from California where * * * a statute specifically exempts unconscious action from liability, thus unfortunately obviating the need to make express the reasons for such a separate defense.”
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Chapter 14 Murder Part 3 18 results (showing 5 best matches)
- Schulhofer, Harm and Punishment: A Critique of Emphasis on the Results of Conduct in the Criminal Law, 122 U.Pa.L.Rev. 1497 (1974)
- Tomkovicz, The Endurance of the Felony Murder Rule: A Study of the Forces That Shape Our Criminal Law, 51 Wash. & Lee L.Rev. 1429 (1994)
- B. Cardozo, Law and Literature and Other Essays, 99–100 (1931). See also
- . If the administration is done for a lawful purpose but carelessly, the crime may be manslaughter of the criminal-negligence type.
- (where killing was followed by arson to conceal the murder, this felony murder, as it sufficient they were part of the “same criminal episode”); (jury instruction that killing could take place “before, during or after” the arson if “part of the same criminal enterprise” upheld);
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Chapter 13 Parties; Liability for Conduct of Another Part 2 12 results (showing 5 best matches)
- Decker, The Mental State Requirement for Accomplice Liability in American Criminal Law, 60 S.C.L.Rev. 237 (2008)
- Westerfield, The Mens Rea Requirement of Accomplice Liability in American Criminal Law—Knowledge or Intent, 51 Miss.L.J. 155 (1980)
- could be convicted as accomplices to the murder, the majority’s rationale was “that the case law supports the following propositions rooted in the common law and incorporated in our aiding-and-abetting statute: (1) the aider and abettor must have the ...‘purposive attitude towards’ the criminal venture * * *; (2) a defendant is not responsible for the actions of a third-party who, wholly unassociated with and independent of the defendant, enters into a crime when there is no community of purpose between the defendant and the third-party; however (3) the defendant need not know of the presence of every participant in a group crime (including the principal) in order to be found guilty under an aiding-and-abetting theory of liability * * *; and (4) where the criteria in (1) above are met and the evidence at trial proves that the defendants by their action, foreseeably (and thus, the factfinder may conclude, intentionally) incited action by a third party who shared in their community...
- Johnson, Criminal Liability for Loss of a Chance, 91 Iowa L.Rev. 59, 113 (2005)
- (defendant’s “statement that he was in the Beaugh’s garage when the fatal shots were fired [in bedroom] places him outside the ‘immediate proximity’ of the double homicide and inside the general rule precluding a finding of liability as a principal based solely on a passive failure to intervene in a friend’s criminal acts”).
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Chapter 19 Theft Part 3 25 results (showing 5 best matches)
- On the federal level, of course, false pretenses is criminal only when made so by statute. However, statutes on the federal level have been rather generously construed in order to conclude that they extend beyond the common-law larceny situation. See, e.g., not limited to common-law larceny and proscribes obtaining money by false pretenses).
- In those criminal codes with a modern provision on this subject, this is often expressly stated. However, some of the modern provisions fail to address this issue one way or the other.
- The crime of forgery is to be found in all criminal codes. For further discussion of this legislation, see Model Penal Code § 224.1, Comment (1980).
- Such a statute is to be found in virtually all criminal codes. In a few jurisdictions credit card fraud is dealt with within a general theft statute. For discussion of these statutes, see Model Penal Code § 224.6, Comment (1980);
- L. Orfield, Criminal Procedure from Arrest to Appeal 475 (1947).
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Chapter 14 Murder Part 4 35 results (showing 5 best matches)
- The court held that the common law homicide requirement that the fetus be in the process of birth was not changed by medical advances which might keep a fetus alive upon premature birth. Furthermore, any civil law remedies available to a fetus are based on different considerations than criminal liability and are inapplicable. ...’s car collided with a vehicle in which a seven-month pregnant woman was riding. Before the collision the baby was viable and capable of sustaining life outside the womb. The mother aborted shortly thereafter and the injuries received by the fetus in the crash were the cause of death. In reversing the conviction, the court held that civil remedies afforded the fetus and medical advances did not justify changing the common law homicide requirement of live birth. But some jurisdictions, while maintaining the “born alive” rule, have taken the position that the infliction of injury upon a fetus before birth may be homicide if the fetus dies after being born...
- In dealing with the subject of causation in the criminal law, and in particular the problem of the bad aim, we noted that where
- It occasionally happens that one of several co-felons accidentally kills himself while committing or attempting the felony, and the question arises as to the murder liability of his fellow-criminals for the death. Thus limitation on murder liability for a co-felon’s death, on the theory that it is not right to hold him for the death of a willing participant in the risky criminal venture, there should be a similar limitation for the death of a co-felon who manages accidentally to kill himself while voluntarily engaging in the risky criminal enterprise.
- is a common law crime—that is, it was created by the English judges rather than by the English legislature. Though it was first recognized many centuries ago, its exact boundaries were not determined all at once, but rather were worked out by the judges over several centuries of time as a parade of cases, involving different fact situations, came before the judges for decision. At first the judges thought in terms of two broad categories—felonious homicide (without as yet any subdivision into murder and manslaughter) and non-felonious homicide. Later (about 1550), English statutes made it murder intentionally to kill another by poisoning or by lying in wait; but these two situations would seem to be no more than typical cases involving a premeditated intent to kill, the almost literal meaning of “malice aforethought.” So at this time in the history of criminal homicide there was only one type of murder: unlawfully killing another with a premeditated intent to kill.
- As for the history behind this issue, the English judge and criminal law historian Stephen took the view that one should not be guilty of murder of this type unless he was subjectively aware of the risk.
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Chapter 21 Real Property Crimes 25 results (showing 5 best matches)
- See §§ 11.2 to 11.5. But there remains one difficult problem: “It is not uncommon for surreptitious entry to occur under circumstances where law enforcement officials are hard pressed to establish precisely what crime the actor contemplated within the premises. * * * An attempt prosecution would require just such specific proof, whereas prosecution under a burglary statute requires only that it be established that the intrusion was made as a conscious step toward the accomplishment of one of a number of possible criminal objectives.” Model Penal Code § 221.1, Comment at 67 to 68 (1980).
- , stressing that the then-existing state statute had been previously construed to mean that “[o]ne already in possession, even though a trespasser, or there by that implied permission which obtains in society, cannot, by a warning then given, be converted into a violator of the statute,” a “new construction” to the contrary, erroneously based upon “the law of civil trespass—* * * a field quite distinct and separate from criminal trespass,” deprived the petitioners of due process.
- Model Penal Code § 221.1, Comment at 75 (1980). As further noted therein: “Their perception of alarm and danger, moreover, will not depend on the particular purpose of the intruder. The fact that he may be contemplating a minor offense will be no solace to those who may reasonably fear the worst and who may react with measures that may well escalate the criminal purposes of the intruder.” Also, if the statute extends to an intent to commit any crime, difficult problems of proof regarding exactly what kind of crime was intended can be avoided.
- , refers to “a gaggle of criminal trespass misdemeanors” to be found in the Maryland code.
- (criminal trespass not a lesser included offense of burglary here, as burglary defined by statute so that it “may be committed under either a ‘breaking’ alternative or an ‘entering’ alternative,” and burglary went to jury on a breaking theory, not sufficient for trespass crime).
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Chapter 20 Other Personal Property Crimes Part 2 17 results (showing 5 best matches)
- (re extortion, it “is the means employed [to obtain the property of another] which the law denounces, and though the purpose may be to collect a just indebtedness arising from and created by the criminal act for which the threat is to prosecute the wrongdoing, it is nevertheless within the statutory prohibition. The law does not contemplate the use of criminal process as a means of collecting a debt”);
- Note, 23 J.Crim.L. & Crim. 113 (1932), suggests that the line now drawn in snatching and pickpocket cases between larceny from the person and robbery serves to “put a premium on criminal skill and adroitness, and to punish the less practiced and unprofessional thief for his lack of ability in committing a felony that is no more dangerous or heinous than when committed by one clever and nimble enough to be guilty of mere larceny.”
- Some other statutes includes threats to a person’s reputation more generally. There is a difference of opinion as to whether threats of these latter kinds, usually referred to as blackmail, should be criminal. See Campbell, Why Blackmail Should be
- Robinson, Cahill & Bartels, Competing Theories of Blackmail: An Empirical Research Critique of Criminal Law Theory, 89 Tex.L.Rev. 291 (2010)
- In the above cases the defendant’s conduct in striking or intimidating the victim constituted criminal conduct, e.g., assault, battery, manslaughter. But it has been held that even if the defendant renders the victim helpless in proper self-defense, with no intent to steal, and then decides to and does steal, it is nevertheless robbery.
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Chapter 8 Insanity—Procedural Considerations 20 results (showing 5 best matches)
- Indeed, often he will recommend to the defendant that he pursue a process of plea negotiations so as to further minimize the adverse consequences of the criminal-disposition alternative. See the authorities cited in § 8.1, note 92
- Id. at 182–84; H. Weihofen, Mental Disorder as a Criminal Defense 354–55 (1954). Most of these statutes are unclear as to whether they refer to insanity at the time of the act or present insanity, although they seem to cover both situations.
- W. LaFave, J. Israel, N. King & O. Kerr, Criminal Procedure § 15.2(b) (6th ed. 2017)
- Criminal Insanity Cases, 48 Mich.L.Rev. 961, 967–68 (1950).
- Foote, A Comment on Pre-Trial Commitment of Criminal Defendants, 108 U.Pa.L.Rev. 832, 841 (1960)
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West Academic Publishing’s Emeritus Advisory Board 14 results (showing 5 best matches)
- Arthur J. Kania Dean and Professor of LawVillanova University Charles Widger School of Law
- Professor of LawUniversity of Houston Law Center
- Dean & Professor of LawUniversity of Maryland Carey School of Law
- Professor of Law, University of Houston Law Center
- Professor of Law, Yale Law School
- Open Chapter
- Publication Date: June 14th, 2023
- ISBN: 9781685612337
- Subject: Criminal Law
- Series: Hornbooks
- Type: Hornbook Treatises
-
Description:
LaFave and Ohlin’s Criminal Law, 7th Edition is designed to function as the ideal Hornbook resource for the student studying Criminal Law. The book includes comprehensive treatment of all doctrines covered in the basic first-year Criminal Law course, regardless of which textbook the instructor uses. The materials are flexible and not keyed to a specific casebook. Doctrines are carefully explained and are thus ideal for out-of-class study to supplement more discussion-oriented casebook materials. Core topics of the Hornbook include:
- The underlying goals and purposes of the criminal law, including tensions between crime control and due process.
- Principles of statutory interpretation relevant to penal statutes.
- The competing rationales for criminal punishment, constitutional constraints related to sentencing, especially as regards to capital punishment and sentencing guidelines, and mental competency to stand trial.
- A comprehensive treatment of substantive crimes, not just “core crimes” such as all forms of homicide and sexual assault, but also all substantive offenses tested on the bar exam, including assault, battery, theft, robbery, burglary, kidnapping, and arson, and any other offense that might be included on a Criminal Law syllabus, including disorderly conduct, trespassing, and harassment.
- Modes of liability, including not just accomplice and conspiracy liability, but also solicitation and felony murder. The materials explore recent changes to the law in this area, including California’s repeal of the felony murder rule.
- Inchoate offenses, including not just attempts, but also solicitation and conspiracy as inchoate substantive offenses.
- Doctrinal coverage of every justification and excuse, including self-defense, defensive force by police officers, necessity, duress, and insanity—including the competing doctrines for evaluating insanity arguments, and partial defenses such as diminished capacity.
LaFave and Ohlin’s treatment of the Criminal Law is so comprehensive that students are urged to keep the textbook for bar exam study and for initial practice as a criminal lawyer, since the Hornbook is useful as an easy-to-consult, one-volume, practice-ready reference work.
