Definitions

Question 1

Actus Reus

Answer 1

The “guilty act” component of a criminal offense. The actus reus of criminal offenses consists of one or more of the following elements: Conduct, Circumstance, Causation, Consequence. The elements of actus reus can typically be identified by looking at the definition of the offense as some offense definitions specify a particular consequence as one of the elements of actus reus; an example being “murder,” in which the consequence is the “death of a human being.” In such cases, the prosecution must prove that the defendant caused that consequence. In contrast, if the particular kind of conduct IS defined, the prosecution must prove that the defendant performed that particular kind of conduct in committing the crime. (Ex: in the offense of driving while intoxicated, the prosecution must prove that the defendant performed the conduct of DRIVING)

Question 2

Act-Omission Distinction

Answer 2

A CL doctrine re the actus reus conduct element of criminal offenses, according to which it is generally the case that a person cannot properly be convicted of a criminal offense for failing to act. GENERALLY, one’s failure to act (omission) will not establish the actus reus of a criminal offense.

Question 3

Exceptions to the “No actus reus for omission” rule

Answer 3

When an exception applies, a defendant’s omission can can satisfy the conduct element of actus reus. Typical exceptions include:
1. Duties based on familial relations (e.g. parents’ duty to come to the aid of their child)
2. Contractual duties (e.g. a lifeguard hired to protect swimmers must act when a person is drowning)
3. Duties that arise when D created the danger at issues (if you pushed the drowning man into the pool, you’d have a duty to try and save him)

Question 4

Causation

Answer 4

An element of the actus reus in crimes which are defined in terms of a prohibited result or consequence (result and consequence being interchangeable, but with MPC using the term “result”) In order to prove the D is guilty of such a crime, the prosecution must prove that the D’s conduct caused the prohibited consequence. *There are two primary tests for causation:
1. But-For Causation
2. Proximate Causation

Question 5

Circumstance

Answer 5

An element included in the actus reus of some criminal offenses. Ex: The actus reus of burglary is typically defined as “breaking & entering the dwelling house of another,” the circumstance elements being
1. Dwelling house (not a business or public building)
2. Of another person
When the definition of a criminal offense specifies circumstance elements, those elements must be proven by the prosecution in order for the d to be found guilty of the offense. If the prosecution fails to prove each of the circumstance elements, the the d should be acquitted of the offense.

Question 6

Conduct

Answer 6

An element included in the actus reus of some criminal offenses. Some offenses are defined principally in terms of the conduct and circumstance elements, without specifying any consequence element in the definition of the actus reus. Such offenses are often referred to as “conduct crimes.” A common example is driving under the influence of alcohol: in order to prove the offense, the prosecution need not prove that any particular consequence resulted from the d’s conduct. Thus, a d may be found guilty of the crime even if no accident, property damage, injury to another, etc. resulted. Conduct includes both acts and omissions.

Question 7

Consequence

Answer 7

An element included in the actus reus of some criminal offenses. The actus reus of some offenses are defined principally in terms of the consequence and circumstance elements, without specifying any particular kind of conduct element. These are often referred to as “result crimes.” Ex: in order to prove any homicide offense, the prosecution must prove that a particular prohibited consequence resulted from the d’s conduct - namely the death of another human. The consequence must have been caused by some act or omission (i.e. some conduct) but there is no need for the prosecution to prove that the d caused the consequence through any particular means.

Question 8

Common Law

Answer 8

The body of legal principles, doctrines and rules developed through custom and judicial precedent (caselaw), rather than through statutes. The common law in the US was inherited from England and has been adopted and modified with some variations throughout US jurisdictions.

Question 9

Consequentialism

Answer 9

A philosophical theory according to which conduct is morally right depending on the consequences of the conduct. In criminal law theory, consequentialist theories of punishment claim that the state is
justified in using criminal law and criminal punishment insofar as their use leads to good consequences for society. The most widely-recognized consequentialist theories of punishment include deterrence,
rehabilitation, education, and incapacitation.

Question 10

Culpable

Answer 10

(Used interchangeably with “blameworthy” for purposes of class) it is an adjective that characterizes the legal and/or moral status of an actor regarding some particular conduct. Being culpable consists in committing a wrongful act (or omission) without justification or excuse. Remember that an actor might be LEGALLY culpable, but not MORALLY culpable.

Question 11

Detterence

Answer 11

As in “deterrence theory” - a consequentialist theory of punishment which states that a criminal law and punishment are justified in virtue of their ability to deter from committing criminal offense. Specific
deterrence is the view that criminal punishment of a particular defendant is justified in virtue of its ability to deter that particular defendant from re-offending. General deterrence is the view that
criminal law and punishment are justified in virtue of their ability to deter other people (people in the community, generally) from committing criminal offenses.

Question 12

Educational Theories

Answer 12

A consequentialist theory of punishment which claims that criminal law and punishment can be justified in virtue of their ability to educate society regarding proper standards of behavior. In some instances,
the proper standards of behavior are more or less shared in the society, and thus the educational effect of law is meant to educate those outliers who have failed to accept societal norms of proper behavior
(e.g., people who commit hate crime, domestic violence, etc.). In other instances, the criminal law is thought to assist in educating the general public, by spreading awareness of widely ignored dangers (e.g.,
aggressive DUI prosecution and bans on cell phone use while driving).

Question 13

General Part (of Criminal Law)

Answer 13

The concepts, theories, principles, doctrines, standards and rules that apply across every criminal offense. Every offense will have some general part – such as actus reus, mens rea, defenses.

Question 14

Harm

Answer 14

According to a classic formulation by philosopher, Joel Feinberg, harm is set-back to a person’s interests. Typically, in the criminal law, harms involve set-backs to the victim’s interest in life, health, bodily integrity, pain-avoidance, or property. Increasingly, set-backs to emotional and reputational interests are recognized as harms that warrant a response from the criminal law. The term harm is sometimes reserved for set-backs to interests that are wrongfully caused.

Question 15

Harm Principle

Answer 15

On the classic formulation by philosopher, John Stuart Mill, the harm principle states that “the only purpose for which power can be rightfully exercised over any member of a civilized community, against his will, is to prevent harm to others.” (Compare, Offense Principle.) The harm principle is widely interpreted to mean that it is not appropriate for the state to criminalize conduct that does not cause any harm, or that merely involved self-harm to the defendant (such as drug use, failing to use a seat belt or helmet, attempting suicide, etc.). One implication of the harm principle is that it is not appropriate for the state to criminalize conduct solely on grounds that the conduct violates the community’s moral standards. (See Legal Moralism.)

Question 16

Homicide

Answer 16

In the category of criminal offenses, all of which include the defendant causing the death of another human being.

Question 17

Indeterminant (Indeterminancy)

Answer 17

When law professors say that the law is “indeterminant” in a given case, they mean that the legal principles, doctrines, standards and rules do not determine what the outcome should be in that case. In some cases (called “easy” cases) most people are willing to agree that the law fully determines the correct outcome. For example, if the speed limit on Lancaster Blvd. is 30 mph and you are driving at 45mph, the law regarding the speed limit fully determines the question of your guilty (that is, you are guilty!). However, in other cases (called “hard” cases), there are often difficult questions regarding
either (1) what the law is (e.g., how to interpret the language of a statute or determine the ratio decidendi of binding precedent), or (2) how the law should apply to the facts of a particular case. In these cases, it is not possible to simply apply the law to the facts and discover the correct result, since in hard cases, the law does not fully determine the correct result.

Question 18

Indictment

Answer 18

A criminal charge in a felony case. Typically used to refer to the actual document filed by the prosecutor with the clerk of the court in order to initiate a criminal prosecution against a particular defendant.

Question 19

Intention

Answer 19

A form of mens rea that (in its direct sense) refers to the defendant’s purpose, desire or “conscious object.” For our purposes, intention is interchangeable with purpose. According to philosopher Antony Duff’s “test of failure” formulation of intention, a defendant intends his conduct to cause a particular result (say, shooting a gun with the intent to kill someone), whenever
the defendant would feel as if the conduct had failed if it did not accomplish the intended result. Intention is also understood in some jurisdictions to include knowledge that a particular result is virtually certain to occur as a result of his conduct. This formulation is referred to as “indirect intent” -
which is closer to the mens rea of knowledge. Intention is typically assumed to be the “highest” level of mens rea, reflecting the greatest level of culpability. As such, offenses defined with a mens rea of intention typically draw a heavier punishment than similar offenses with “lower” levels of mens rea,
such as recklessness or negligence.

Question 20

Knowledge

Answer 20

A form of mens rea that consists in the defendant being aware of something. Whether a d had knowledge in correspondence to a given actus reus element is to be determined according to different tests, depending on the kind of actus reus element at issue: conduct, circumstance, or consequence. If
the issue is whether the defendant knew that he engaged in a particular kind of conduct (say, texting while driving), then the test for knowledge is whether he was aware of his conduct. If he was aware that he was texting and driving at the same time, this will establish that he had the mens rea of knowledge with respect to the conduct elements of the actus reus (texting and driving). If the issue is whether the defendant knew that a particular circumstance attended his conduct (“attendant circumstance”), then
again, the test is awareness. If he was aware that those particular circumstances existed at that time of his conduct, that will suffice to establish his knowledge of the circumstances.

Question 21

Examples of Knowledge

Answer 21

For example, if defendant is charged with statutory rape of a child under 16 and the mens rea is knowledge, in order to establish that the defendant had the mens rea of knowledge with respect to the circumstance element of the actus reus (here, the victim’s young age), the prosecution will need to prove that the defendant was aware that the victim was under 16 yrs.. Finally, if the issue is whether the defendant knew that a
consequence would result from his conduct, the test is somewhat different: the prosecution must prove that the defendant was aware that that the consequence10 was practically certain to result from his conduct. So, for example, if a defendant is charged with homicide based on shooting and killing
someone, then in order to prove that the defendant had knowledge with respect to the consequence element (the death of another human being), the prosecution must prove that the defendant was aware that another person’s death was practically certain to result from his shooting. If, for example, the
defendant knew he was shooting at another human being, but he thought that the person had on bullet proof armor (and thus the defendant thought it was not practically certain that anyone would not be
killed by the bullet), the defendant might defeat the prosecution’s claim that he knew his conduct would cause the death of another human being. See MPC 2.02 (b).

Question 22

Legal Moralism

Answer 22

A theory regarding the proper scope of criminal law (that is, what kind of conduct can properly be criminalized), which states that it is appropriate for the state to criminalize conduct solely on grounds that the conduct violates the community’s moral standards. Legal moralism is inconsistent with the principle of minimalism. Legal moralism is typically distinguished from the harm principle, but this distinction is often misleading, since many leading proponents of legal moralism have argued that conduct which violates the community’s moral standards actually does harm the community.

Question 23

Malum in Se

Answer 23

Latin for “wrong (evil) in itself.” Murder, battery and rape are examples of conduct considered malum in se.

Question 24

Malum Prohibitum

Answer 24

Latin for “wrong (evil) only because it had been prohibited.” Driving on the left side of the road and fishing without a license are examples of conduct considered malum prohibitum

Question 25

Model Penal Code (MPC)

Answer 25

A statutory text written by members of the American Law Institute (ALI) in 1962 and last updated in 1981. The point of writing the MPC was to provide a model uniform criminal code that could be adopted by each of the 50 states, in order to provide greater uniformity to the criminal law throughout the United States. However, the MPC was not uniformly adopted – and even those states that did adopt many of its provisions have continued to tweak their criminal laws. As such, there is still a great lack of uniformity in the criminal laws throughout the U.S. Note that the MPC itself does not have the force of law. Rather, certain sections of the MPC gain the force of law when they are enacted as law in a particular jurisdiction (e.g., by the state legislature enacting a statute that includes language from the MPC).

Question 26

Motive

Answer 26

In criminal law, the reason why a defendant committed a crime. There is a crim law doctrine which states that motive is irrelevant to criminal liability. Ex: the fact that a d stole a loaf of bread because he was starving is, according to the doctrine, irrelevant to whether he is guilty of theft. It is often hard to disentangle a d’s motive from their intention or purpose. In cases where the requisite mens rea is defined by common law concepts of “willfulness” or “depraved heart” is often difficult for courts to distinguish motive from mens rea.

Question 27

Offense Principle

Answer 27

A principle re the proper scope of crim law which states that conduct that causes offense to others may justifiably be criminalized. The principle is thought by some to expand the scope of the crim law to an inappropriately vast range of conduct.

Question 28

Offenses Against the Person

Answer 28

A category of criminal offenses which prohibit threatened or actual harm to other human beings, but do not result in death. (Offenses that result in the death of a human beings are categorized as “homicide offenses.”) Examples of offenses against the person include assault and battery, mayhem and stalking. Sexual offenses are, strictly speaking, offenses against the person – but typically they are categorized as a separate category of offense (“sexual offenses”).

Question 29

Property Offenses

Answer 29

A group of criminal offenses which target conduct that threatens or harms property, or deprives an owner or possessor of his/her property. Statutory property offenses include theft, robbery and burglary.

Question 30

Provocation

Answer 30

A partial defense to a criminal charge of murder, which reduces murder to voluntary manslaughter.

Question 31

Purpose

Answer 31

A form of mens rea roughly synonymous with intention

Question 32

Reasonableness

Answer 32

In criminal law offense definitions, reasonableness arises as a mens rea issue in cases where we must decided whether a given defendant should be found criminally negligent or reckless.24 Reasonableness issues also arise in cases where a defendant has been charged with murder and argues that he should be convicted of the lesser-
included offense of provocation.

Question 33

Recklessness

Answer 33

A form of mens rea that refers to a d’s awareness of a substantial and unjustifiable risk, when taking that risk involves a gross deviation from the standard of care that a reasonable person would observe in the actor’s situation. he key distinction between recklessness and negligence is whether the
defendant recognized (was aware of) the risk at issue. When statutes fail to define a mens rea element, courts typically assume that the prosecution must prove, at least, that the defendant was reckless.

Question 34

Retributivism

Answer 34

A theory which claims that criminal punishment is justified, at least in part, because the person who is
punished deserves to be punished for his/her wrongdoing. Retributivism is characterized as a “backward-looking” theory, because it is concerned with what happened in the past – and is not concerned with bringing about good consequences in the future. (Compare utilitarianism, which is characterized as a “forward-looking” theory.) Retributivism is one of the most influential theories of
punishment.

Question 35

Strict Liability

Answer 35

A form of criminal liability in which the prosecution need only prove the actus reus elements, and need not prove that the defendant had mens rea. Strict liability is inconsistent with the principle of correspondence (see above). Strict liability can be partial or complete.