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d) Keller v. Superior Ct (1970) 1. Facts: Man got divorced. Wife got pregnant. Man assaulted her and the fetus dies. Man said “I’m going to stop it out of you.” This shows intent. Man is charged with murder. 2. Feticide—Law vs. Morals. 3. Issue: Is a fetus a human being? Does statute provide notice of crime charged? (statute only says it’s unlawful to kill a person). 4. How does this differ from Commonwealth v. Keller (pg. 148), where fetus dies and woman buried it in her basement? There, the ct found that the act was unlawful under common law b/c it was contrary to public morals even though the prohibition wasn’t codified (no notice). 5. HYPO: If someone makes a drug that has the same effect as cocaine, can he be prosecuted even though that drug has not been codified as illegal? 6. **There must be notice to both the individual and to the police. 7. **There is a public sphere and the private sphere. Common law tried to merge morality and the law.
e) City of Chicago v. Morales (1999) 1. Facts: Ordinance prevents gang members from loitering. ‘Loiter’ is defined as “standing around with no apparent purpose w/others in a public place.” 2. How do we define ‘gang members?’ 3. Holding: The ordinance is unconstitutionally vague b/c it fails to provide proper notice. Also, it gives police too much discretion and criminalizes legal activity. 4. But the law has an order to disperse before one can be arrested, doesn’t this provide proper notice? A: No, b/c ‘disperse’ is vague. How many? For how long? 5. Does the ordinance criminalize a STATUS with a touch of cultural bias? 6. Should the burden be on the state to make better police enforcement rather than making new laws? 7. The ordinance was a pragmatic attempt to protect the rest of the city who felt threatened. 8. What’s the difference between loitering and stalking? Isn’t stalking considered an innocent act? How many times is considered stalking? Stalking is intentionally invading someone’s privacy (intent and an act). Then, couldn’t police say a person is loitering w/intent to sell drugs?
I. Mens Rea (The Guilty Mind)
a) Themes 1. Utilitarian view (modern)—balancing the outcome in the interests of society. Individual rights became relative. 2. Retribution view (traditional)—This includes traditional mens rea and actus reus. It is rooted in common law. Constitutional principles tie the 2 traditions together. Legislature acts as a ‘central command’ to discern the elements.
b) U.S. v. Balint (1922) 1. Facts: Δ charged with selling illegal drugs even though he didn’t know drugs were illegal. 2. Issue: Can a Δ be guilty for the act w/o mens rea? Can a strict liability statute be constitutional? 3. Holding: The Δ had an opportunity to find out if what he was doing was illegal, and is guilty. 4. The rationale is to punish the seller to prevent victimizing the buyer. 5. Social contract: Individual rights (proving mens rea) may be subservient to the overriding needs of society (strict liability crimes). There can be liability w/o fault. Shouldn’t it be liability w/o intent?
c) U.S. v. Dotterweich (1943) 1. Holding: ct found that a Company President is liable even if he did not have knowledge of a crime his workers committed b/c he put himself in a position to know. 2. How does this compare with Morisette v. U.S (pg. 193), where Δ was convicted of ‘knowingly converting government property,’ even though he claimed he was unaware that the bomb casings he stole belonged to the government? Perhaps this outcome is different from Balint b/c narcotics are more dangerous to others than bomb casings. 3. The Morisette court remarks that with the industrialization of America, there are an increasing number of acts that can pose a danger to the public welfare. Legislatures have chosen to apply traditional prosecution techniques to these crimes, but the element of intent can’t be lost. 4. Is there a tension between strict liability and having a guilty mind? 5. In U.S. v. Park (pg. 192), should the burden be on those in higher positions to set the regulations? Should affirmative duties go with people who voluntarily take certain positions? 6. In U.S. v. X-Citement Video (pg. 195), Rehnquist required a ‘knowledge’ element. There was no strict liability for a producer of a sex video that hired minors b/c it’s not a “public welfare offense.” 7. In People v. Dillard (pg. 197), ∆ violated statute by carrying loaded rifle. ∆ claims he didn’t know it was loaded. How can prosecutor prove knowledge? The ct allows conclusive presumptions to make the system more efficient. (ie. legislature writes statutes that impose strict liability). Liability of fault doesn’t have to be decided case by case. The severity of the harm dictates this. 8. Justice Holmes argues for externalization of fault. He looked to objectify crime. This diminishes the moral blameworthiness (some say this further diminishes effect of crime itself)
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