Kenya Criminal Law Revision Paper

1. Match the following theories of criminal punishment with their respective attributes:

A. Utilitarianism 1. punish this criminal to deter other criminals.

2. punish this criminal to deter this criminal from future crimes.

B. Retributivism 3. respect the criminals free will choice to commit crime by punishing him.

4. forward looking - focus on preventing crime.

5. backward looking - focus on the crime itself.

6. punish criminal because he deserves it.

7. punish criminal to express societys disapproval of his conduct

1. A: 1, 2, 4; B. 3, 5, 6, 7.

2. What is the difference between the principle of legality and the rule of lenity? What are the policy reasons behind each?

2. The principle of legality is that there is no crime or punishment without a pre-existing law that prohibits that crime. Thus, the conduct must be deemed a crime before the act is committed. The policy behind the principle of legality is that fair warning should be provided to a criminal so that he does not inadvertently commit a crime that he has no reason to believe is illegal. There is no deterrence value in having unwritten crimes because people do not know what actions to avoid. Also, it is not morally culpable to do an act that a person reasonably believes is not illegal. Lastly, it would be unconstitutional under the ex post facto clause to do so. The rule of lenity is a corollary to the principle of legality - it follows naturally from it. The rule of lenity requires that all ambiguities in statutory language be resolved in the defendants favor. The policy reasons are the same as the rule of legality. Also, the rule of lenity encourages the legislature to write more clear statutes.

3. Jim is a hypnotist who hypnotizes Annette at a party. While Annette is hypnotized, Jim entertains the crowd by suggesting that she punch her husband, Bill in the nose. Annette does punch Bill in the nose, but she claims that she does not remember anything during the time she was hypnotized. If Bill were to press charges against Annette for battery, what possible defenses could Annette raise?

3. Annette would attempt to negate the actus reus requirement of the crime, and perhaps the mens rea as well. In either case, these would be failure of proof defenses as opposed to true defenses. To defeat the actus reus, Annette would claim that since she was hypnotized, her act was not voluntary. That is to say that it was not a product of her free will. She could claim automatism or unconsciousness, meaning that she was not conscious of her actions and they were reflexive in nature. Also, the acts could be equated to those of a sleepwalker. However, one can make a policy argument that so little is known about hypnosis that a line can not be drawn between what actions are voluntary and which are not when a person is hypnotized.

4. Robin suffers from a legitimate, documented mental disease called multiple personality disorder or MPD. Her alternate personality, Jennifer, is a wild partier who drinks excessively. One evening, while Jennifer was in control of her body, she was arrested for drunk-driving. What defenses would Robin raise in regards to the DUI charge? Assume that both Robin and Jennifer are rational personalities, the only difference being that Jennifer is much less inhibited than Robin.

4. Robin would attempt (as did Annette in Question 3, above) to defeat the actus reus requirement of the crime. Robin would not claim insanity as a defense to the mens rea because both she and Jennifer are both able to form the intent to drive drunk, and both should know it is illegal. To defeat the actus reus element, Robin would claim that her actions were involuntary because they were performed by her alternate personality, and that she had no control over her body while Jennifer had control. However, a policy argument can be made that since it is difficult to prove, MPD should not be a defense because the courts can not punish one personality separately from another in the same mind and should not have to do so. (See Dressler, pg. 75-76).

5. Harry is a boisterous drunk who likes to drink beer at home each night while he listens to loud music. A neighbor calls the police on Harry, and they come to tell him to quiet down. When they get to his door, they arrest him and take him out into the front yard and begin to argue with him about the noise level. Harry, obviously intoxicated, shouts loud obscenities at the police officers, who subsequently charge him with public drunkenness, which is defined by statute as appearance while intoxicated in a public place and acting in a boisterous manner. What is Harrys defense to the public drunkenness charge?

5. Harry will argue that although his intoxication was voluntary, that the proper voluntary act required to be proven by the statute was the appearance in public. Since he was taken from his home by the police officers, his appearance in public was involuntary. Had he not been arrested by the police officers and removed from his home, his conduct would not have satisfied the public drunkenness statute. (See Dressler, pg. 79).

6. Jane is married to Michael. Michael is a drug dealer. One night, Jane comes home and finds Michael on the floor, doubled over in pain as a result of being beaten by the buyer in a drug deal gone sour. Michael is bleeding internally and is in a lot of pain and can not reach the telephone to call for help. Michael asks Jane to call 911, but she refuses, saying that it serves him right for getting involved with drugs, and that she is going to let him suffer for a while before she calls for help, so that he is sure to learn his lesson. After 15 minutes, she calls for 911, but when the paramedics arrive, it is too late to save Michael, who dies. May Jane be charged with murder for waiting 15 minutes to call for help?

6. The general rule is that there is no liability for an omission in the absence of a legal duty to act. A moral duty to act is insufficient to create criminal liability. However, there are several exceptions, including express statutory duty, contractual obligation, and the common-law duties arising from creation of the risk, voluntary assistance, and special relationship. Married couples, like Jane and Michael are part of a common-law special relationship between spouses. Thus, Jane had a legal duty to summon assistance for her husband, Michael. A factual issue exists whether the delay of 15 minutes caused Michaels death, or whether he would have died anyway as a result of his wounds. Also, Jane must have had the requisite mens rea, which for murder is intent to kill. It is likely that Janes spiteful comment that she was delaying to teach Michael a lesson would be viewed as extreme recklessness and extreme indifference to human life (depraved heart murder).

7. Divide the following crimes into their respective elements: the actus reus, and the mens rea. For each crime, classify the actus reus as a conduct or result crime (social harm element) and identify the attendant circumstances elements.

A. murder - the killing of a human being by another human being with malice aforethought.
B. DUI - intentionally driving under the influence of alcohol.
C. burglary - the breaking and entering of the dwelling house of another at nighttime with the intent to commit a felony within.

7. The actus reus in the following answers are bolded, the mens rea is underlined:

A. murder - the killing of a human being by another human being with malice aforethought.
1. result crime - it is the result that is prohibited.
2. Attendant circumstances are not expressly defined but could include the fact that the murder weapon was loaded.
B. DUI - intentionally driving under the influence of alcohol.
1. conduct crime - no harmful result is required, the conduct itself is prohibited.
2. Attendant circumstances are part of the crime definition - driving must occur while the driver is under the influence of alcohol.
C. burglary - the breaking and entering of the dwelling house of another at nighttime with the intent to commit a felony within.
1. conduct crime - no harmful result is required.
2. Attendant circumstances are part of the crime definition - house must be a dwelling house, conduct must occur at nighttime.

8. An anarchist throws a bomb into the Kings carriage. The King and his valet are riding inside and are killed by the concussion of the explosion. The coachman sitting atop the carriage is killed by being thrown from the carriage and landing on his head. The people lining the street to watch the King go by are killed by flying fragments. When questioned, the anarchist states that he intended to King, and knew that the valet would also die because he was so close. He also stated that he figured the coachman would be hurt, but he wouldnt let that stop him from killing the King. Lastly, he stated that he had no idea that the explosion might kill the people lining the street and was sorry that they died because he did not intend to kill any of them. What was the anarchists mental state with regard to 1) the King, 2) the valet, 3) the coachman, and 4) the bystanders.

8. The Model Penal Code § 2.02 defines 4 mental states: purposely, knowingly, recklessly and negligently. A person acts purposely if it is his conscious object to engage in conduct or cause a particular result. The anarchist stated that he intended to kill the King. Thus, the anarchist acted purposely with respect to killing the King. A person acts knowingly if he is aware or practically certain that a particular result will occur. The anarchist knew that the valet would also die because he was so close. Thus, the anarchist acted knowingly with respect to killing the valet. A person acts recklessly if he consciously disregards a substantial and unjustifiable risk. Whether the risk is substantial and unjustifiable is measured by the law-abiding citizen standard. A law abiding citizen would regard the risk of blowing up a person as substantial and unjustifiable. Since the anarchist figured the coachman would be hurt, but he wouldnt let that stop him from killing the King, he consciously disregarded a substantial and unjustifiable risk, thus acting recklessly with respect to killing the coachman. A person acts negligently if he should be aware of a substantial and unjustifiable risk. Whether the risk is substantial and unjustifiable is measured by the reasonable person standard. A reasonable person would likely have known that an explosion inside the carriage would cause lethal fragments to be thrown into the crowd. Even though the anarchist never intended to kill an innocent bystander, he is held up to the reasonable person standard and thus acted negligently with regard to killing the bystanders.

9. Under the Model Penal Code, if a statute is silent as to the particular mental state required for any particular element, what mental states would satisfy the requirement?

9. When the definition of a criminal offense is silent regarding the matter of culpability as to any material element of the offense, §2.02 provides that the element is satisfied if the person acted purposely, knowingly or recklessly (but not merely negligently).

10. If a statute defines the crime of false imprisonment as knowingly restraining another person unlawfully, how would the Model Penal Code treat the mens rea for each of the material elements of the crime?

10. MPC §2.02(4) provides that if a single mens rea element is given in the definition of a crime, without distinguishing among the material elements of the crime, then that mens rea applies to each material element of the crime. Thus, to be guilty of false imprisonment under this statute, the person must have knowingly restrained the person, and also have known that the restraint was unlawful. See Ratzlaf and Dressler, pg. 123.

11. Jim is pulled over for suspicion of driving drunk. He consents to a search of his car. Under the back seat, the police officer finds a bag of cocaine. When questioned, Jim claims that the car belongs to a friend who loaned it to him to go bar-hopping for the night. Jim states that he had no idea that there was cocaine under the back seat. What issues are raised if Jim is charged with knowing possession of a controlled substance.

11. First, we will deal with the actus reus portion of this conduct crime. Possession requires that the actor have been aware of his control of the object for a sufficient period to have been able to terminate his possession. If Jim were reasonably never aware of his control of the object, then he could not have had a chance to terminate his possession, thus negating the actus reus of possession. As to the mens rea, a person acts knowingly in a conduct crime if he is aware or is practically certain of the existence of a certain fact. If Jim honestly and actually did not know what, if anything, was under the back seat, then he could not have been aware of his conduct. However, if Jim had reason to suspect that there was a controlled substance under the back seat, then he would not be excused merely by avoiding actual knowledge of what was there. Jim may not use willful blindness to negate the mens rea of knowingly.

12. Which of the following is not a factor that the court would consider in determining whether a crime is a strict liability crime:

A. The penalty is small.
B. Legislative policy would be undermined if a mens rea were required.
C. The standard imposed by the statute is reasonable and would be properly expected of a person.
D. The stigma associated with violation of the statute is large.
E. The statutory crime is malum prohibitum, not malum in se (not derived from the common law crimes.

12. D. The stigma must be small not large.

13. What is Lady Wootens Proposal? What are the arguments in favor of it? What are the arguments against it?

13. Lady Wooten proposed that the mens rea be done away with in the definition of all crimes, thus making all crimes strict liability offenses. Mens rea would only be relevant at the time of sentencing. She argued that the mens rea element was solely retributive in nature, going to the moral culpability of the actor. Thus, in a utilitarian system relying on deterrence, failing to prosecute any crime stands in the way of efficient deterrence. The punishment aspect of sentencing was the more rational place to take into account the persons moral culpability. Leniency would be given to those who were not morally culpable. However, this would result in the police being overburdened by having to enforce the law in unnecessary situations, and provide intolerable intrusion into the citizens life. Any casual bump in public would have to be prosecuted as a battery, only to let the defendant off without punishment after a burdensome trial. Thus, the transaction costs in maintaining such a system would be prohibitive.

14. Consider the following short hypos. In each, who is a proximate cause of Vs death?

A. D1 takes aim at V. But before D1 shoots, D2 shoots V, killing V instantly. D1s bullet strikes Vs dead body.

B. Both D1 and D2 shoot V simultaneously in the stomach. Either shot would have killed V in 1 hour, but the combination causes V to die in 5 minutes.

C. Both D1 and D2 simultaneously shoot V in the head. Either shot would have been sufficient to kill him instantly.

D. D1 shoots V in the stomach (which would have killed V in 1 hour). A second later, V is struck in the head by a bullet shot by D2, which kills V instantly.

E. D seriously (but not lethally) wounds V. At the hospital, V receives negligent medical care, and then dies.

F. D seriously (but not lethally) wounds V. At the hospital, V is stabbed by a knife wielding maniac.