Substantive Criminal Law

Let's dive into the criminal law half of this class. This is, as I said before, the substantive criminal law— the kind of stuff that at most law schools is taught as a required first-year class. Basically, the kinds of things that are illegal. What is against the law? How do courts read criminal statutes? Things like that. Where does this law come from? It's mostly going to be state statutory law. So, every state and often the local municipalities and the federal government, they'll have their own criminal code, which will lay out what's illegal in that particular jurisdiction, what the penalties are for any particular crime.

Sources of Law

Common Law

Given that, how exactly are we supposed to learn the criminal law of the United States if there isn't one set of criminal laws that apply everywhere? I mean there's federal criminal law, but it's kind of its own niche thing. Well, from a few places. So first of all, most states ( basically all states) have a big chunk of their criminal law that has been directly adapted from the original common law of England. There were crimes that were recognized by common law courts in England many centuries ago, and there are crimes that are still prosecuted today under some statute in different states, but they're basically directly incorporating distinctions, concepts, labels that were invented by English judges many centuries ago.

Model Penal Code (MPC)

And so, we're going to learn some of those common law rules. There're also are going to be places where we're going to talk about dominant approaches that many states have adopted by statute, even if they don't come from the common law, but they're still sort of where the law has converged on. There's also the Model Penal Code, which is not the law anywhere. It's just a draft model statute that was written by a law professor and other members of the American Law Institute; but nonetheless, is often studied in law school, is influential, has influenced the law at a bunch of places, and is often cited by courts ( state and federal) in figuring out what the details of the criminal law should be.

The US Constitution

Now, I said before that the first part of the class is about substantive criminal law, and then the criminal procedure part of the class is where we're going to do the constitutional law. But we are actually going to do a little tiny bit of constitutional law here in the substantive criminal law part of the class as well, because there's just a few places where there are some very narrow, constitutional limits on the scope of substantive criminal law, and it's possible you could be tested on that. So, we will discuss those a little bit briefly as we go through the material in a couple of places, so don't get confused if that happens.

Focus on the Common Law

But that's really not our main focus or our main source of law when we're looking at the substantive criminal law. And just to sort of sum up, there are these different sources of law that are going to be influencing criminal law. But the thing that the bar examiners really tend to test the most is the kind of common law approach. And by that, we mean just the approach that courts all over the country— interpreting and drawing on the original common law of England— have taken to criminal law concepts. And so, that makes it relatively easy. We are still going to learn some other distinctions here and there, but for the most part, we kind of know what our target is, and that's going to simplify things a little bit. It's going to make this class a little different from your first-year criminal law class, if you took that, where you might've spent a lot more time talking about the MPC, for example, than we will here.

Main Topics

So, let me just quickly walk you through the main topics we're going to cover— again, keeping in mind the basic structure of the outline that the bar examiners have given us, with the one modification I've made, which is we're going to move up one part of the material to the beginning. And that's what the bar examiners call the general principles. And that's going to basically be rules about criminal law that apply across the board anytime you're interpreting a criminal statute.

Requirements for Criminal Liability

Things like: what are the kinds of criminal acts, in general? How do we know whether there's been the right kind of act that can create criminal liability? What kinds of mental states can create criminal liability, what we call mens rea? Some basic principles of responsibility and situations where someone might have either a mental disorder or be intoxicated, and how that might affect their responsibility for a crime, and also interplay with their mens rea or the required state of mind. We're going to talk about causation a little bit. Causation is something that comes up in criminal law a lot, but it's actually not required as an element for most crimes. It is an important requirement in the law of homicide and then in a couple of other places. In homicide, it's tested a lot, and so it's important for that reason.

Defenses to Criminal Punishment

We're also going to talk about justification and excuse, basically defenses, to criminal punishment, and then briefly talk about jurisdiction. And so, those are the general principles.

Specific Crimes

And then we're going to really dive into some specific crimes. The first one we're going to talk about is homicide. We're going to spend a lot of time on that. Again, as I said, this is something that the bar examiners like to test a lot. There's some important gradations and variations and different kinds of homicide crimes, and we're going to learn all of those.

And then, we're going to run through a number of other crimes. We're going to talk about theft crimes— robbery, burglary, assault and battery. We're going to talk about rape and statutory rape. We're going to talk about kidnapping. We're going to talk about arson, and we're going to briefly cover possession offenses.

Inchoate crimes

And then, with all that done, once we've learned all that, then we're going to briefly return to some general principles and talk about inchoate crimes and principles of who can be a party to a crime. And so, inchoate offenses are situations where someone has done something but maybe hasn't gone all the way to completing the crime, but they still could be punished because they've attempted to commit a crime, or they've conspired to commit a crime, or they solicited someone else to commit a crime. And then, in terms of the parties to crime, that's how can two people be punished for a crime that one of them does when the other one helps— basically aiding and abetting, accomplice liability— a lot of different phrases that you've heard to describe that concept.

And so, that is going to be the criminal law course. And then after that, once we're done with all that, that's when we move on to criminal procedure.