Criminal Law Outline 2011

Criminal Law Class Outline Final Exam Tips: Fact patters will be longer on the final than on the Powerpoint multiple choice. Short answers will have questions like, “What if you are the prosecutor? Defense?” Watch for the call of the question referring to the M.P.C. vs. Common Law! We will get a list of TX and MPC sections and topics. If you cite a rule, then specify common law, MPC, or TPC on the short answer. > Learn the MPC section numbers and the Texas #s for the Final Exam, there will be MPC provisions provided. > Presume the common law on the exam if not specified; MPC for Rape not on there There are conduct crimes (DUI) and there are result crimes (murder) • Over 90% of all criminal cases are resolved before trial through plea bargaining. • In some jurisdictions the numbers are over 98%. • Plea bargaining is not new; it has been used in this country since colonial times. • Acquittal rates after trial (jury or judge) vary from 17-25%. • Only 8% of those incarcerated in the U.S. are female. Only 2-8% of criminal cases go to trial depending on the jurisdiction. Even lower in civil court. Regina v. Dudley and Stephens Purposes of the Criminal Law (A) blame rhetoric that masks a cost-distribution scheme creates severe danger because the punished will not accept the legitimacy of their punishment and feel oppressed, others may come to view them as martyrs. Emotions: Maybe bad ones good, maybe good ones bad, maybe emotions have no place in criminal law or maybe just sentimentality has no place Punishment v. Treatment: Treatment takes the deterrent force away and shifts blame to an illness instead of a committed wrong. Punishment helps the criminal by teaching him the gravity of his actions and has great value to the vast number of law-abiding citizens to appreciate responsibility and define minimum societal standards. Posner’s Economics: tort remedies often hit a solvency wall that criminal penalties can surpass for deterrence purposes; it also serves an essential nonpecuniary penalty function as all necessary deterrence cannot happen by pecuniary means alone. The criminal stigma means more than the tort stigma. Imprisonment must be heavy for deterrence to compensate for low probabilities of apprehension and conviction Seidman in contrast: Overdeterrance could cause the Leibniz problem of less than optimum (perfectly utilitarian) evil to create courage and other goodness. It could also cause a robber to say, “I’m facing death anyways, I might as well throw in a murder with the robbery.” Criminals must believe in the justification for their own condemnment. Conflicting purposes: just punishment, deterrence, incapacitation of dangerous, rehabilitation – some come at other’s expense M.P.C. statement: “to forbid and prevent conduct that threatens substantial harm to individual or public interests and that at the same time is both unjustifiable and inexcusable.” Also, public control of dangerous persons, no condemnation without fault, fair warning, gradation of offenses, no disproportionate or arbitrary punishment, individualization of treatment

Actus Reus

Policy: Deterrence is ineffective for involuntary acts. Strict liability Crimes: Vitiates the act requirement. In Kremer, on unique facts, the court reinstituted the act requirement when a man ran a red light because his brakes failed without warning. Traffic offenses like running reds and speeding are often strict liability. Martin, p. 19 Non-acts under the M.P.C. include: 1. Reflex or convulsion 2. Unconscious or sleep movement 3. Hypnosis or hypnotic suggestion 4. Acts that do not involve effort or determination (Habitual acts are not non-acts) Possession: M.P.C. § 2.01(4): Possession is an act, within the meaning of this section, if the possessor knowingly procured or received the thing possessed or was aware of his control thereof for a sufficient period to have been able to terminate his possession.” Fulcher, p. 21 Unconsciousness Defense: This is an affirmative defense that the defendant carries the burden of proof on. If successful, it kills the voluntary act requirement. Lambert Due process requires notice or reason to learn. On the other hand, “ignorance is no excuse.” Robinson, p. 31 Condemnation for “status” (as an addict) is cruel and unusual. Status is permanent as opposed to intermittent. Status might violate 14th amendment privileges and immunities or equal protection because you wind up entering another state or as in Lambert entering another city and immediately committing a crime just by entry with such status and no other voluntary act. Failure to Act (M.P.C.): 1. Explicit duty (Explicit in the criminal statute) 2. Implicit duty (Implicit in the law [Rescuer doctrine, Contract law, Status relationships, etc…])

Omission to Act
Jones, p. 41 M.P.C. Omission requires: (1) expressly made sufficient by the law defining the offense; OR (2) Duty to perform is otherwise imposed by law (Contract Law, Tort Law) (3) In Jones, the court also requires immediate and direct causation of death by the omitted duty Jones describes four situations where an omission can lead to criminal liability: 1. Statute imposes a duty to care for another 2. Relationship status with the other gives rise to the duty a. Special relationships implied by law: [Torts] Created by entrusting your control and protection to another with loss of control to protect yourself. b. Common carrier/guest; Innkeeper/guest; Parent/minor child; Husband/wife, Master/servant; Doctor/regular patient; etc… 3. Contractual duty a. Assumed Duty Rule: Jones, “voluntarily assumed the care of another and so secluded the helpless person as to prevent others from rendering aid.” Overdose reprise, p. 48: When he gave her drugs and left her with a friend, did he negligently put her in peril or “voluntarily assume care” such that others couldn’t render aid? What’s the rule? What if a hobo jumps out in front of your car and you hit him and drive off? State v. Williquette, p. 49

LaFave and Scott: When in a special relationship, action may be required to protect against threatened acts by third persons. Your duty does extend that far to avoid criminal prosecution. Detecting Gangrenous Infection, p. 55: Duty in Sealy (MI) required four elements: 1. Legal duty 2. Capacity; the means and ability to perform the duty 3. Willful neglect or refusal to perform 4. Death as a direct and immediate consequence 1/20/2011 Regina v. Faulkner, p. 57 • Traditional mens rea requirement was intentional, willful (Knowingly), or reckless • The court gets this from a case called Reg v. Pembleton • These correspond with the MPC, 2.02(3) says that if the mens rea isn’t in the statute then it is basically the same as it was in Reg v. Pembleton – it can be any of those three Nature of Attendant Result of Conduct Substantial and Conduct Circumstances Unjustifiable Risk TtMEEoWRfHC Purposely Conscious Aware (oBoHTE) Conscious N/A Knowingly Aware Aware Aware or N/A Practically Certain Recklessly N/A Aware N/A Conscious Disregard Negligently N/A N/A N/A Should be Aware Model Penal Code § 2.02 • Purposely: A person acts purposely with respect to a material element of an offense when: o If the element involves the nature of his conduct or a result thereof, it is his conscious object to engage in conduct of that nature or to cause such a result; AND o If the element involves the attendant circumstances, he is aware of the existence of such circumstances or he believes or hopes that they exist. • Knowingly: A person acts knowingly with respect to a material element of an offense: o If the element involves the nature of his conduct or the attendant circumstances, he is aware that his conduct is of that nature or that such circumstances exist; AND o If the element involves a result of his conduct, he is aware that it is practically certain that his conduct will cause such a result. • Recklessly: A person acts recklessly with respect to a material element of an offense when he consciously disregards a substantial and unjustifiable risk that the material element exists or will result from his conduct. The risk must be of such a nature and degree that, considering the nature and purpose of the actor’s conduct and the circumstances known to him, its disregard involves a gross deviation from the standard of conduct that a lawabiding person would observe in the actor’s situation. SUBJECTIVE TEST • Negligently: A person acts negligently with respect to a material element of an offense when he should be aware of a substantial and unjustifiable risk that the material element exists or will result from his conduct. The risk must be of such a nature and degree that the actor’s failure to perceive it, considering the nature and purpose of his conduct and the

circumstances known to him, involves a gross deviation from the standard of care that a reasonable person would observe in the actor’s situation. OBJECTIVE TEST Tort law recklessness and negligence are a deviation from the standard of care while criminal recklessness or negligence are a gross deviation. Specific Intent – Voluntary intoxication evidence admissible, intentional causing of harm General Intent – Voluntary intoxication evidence inadmissible, intentional doing of the thing Atkins Two Definitions: • Majority: General Intent = intent to do the act proscribed + knowing, reckless, or negligent causing of the harm. Specific Intent = intent to cause the harm. • Concurrence: General Intent = crimes that don’t expressly have an intent to do some future act, or achieve some further consequence, beyond the actus reus. Specific Intent = crimes that have one of those. 1/27/2011 Make a list of strict liability crimes in case they come up on the exam! Intoxication and specific intent: Remember if the specific intent requirement is recklessness, then that is not specific intent. Intent is only for purpose. Intoxication can never vitiate recklessness, i.e., prove that ∆ did not notice a substantial risk due to intoxication. The Intoxication Defense requires (specific intent or pathological intoxication [p. 106]): 1. Intoxicated enough to not have the required intent (Generally very intoxicated) 2. Did not actually have the required intent Note: Involuntary intoxication is typically considered a complete defense that makes the act involuntary rather than lacking in intent. Texas does NOT allow the involuntary intoxication defense under any circumstances! Villanueva-Sotelo, p. 75 • The mens rea applies to all material elements of a crime “absent evidence to the contrary” (p. 78) Staples, p. 80 • Public welfare offenses require: 1. Knowingly working with a dangerous item that puts you on notice of criminal risk o Note: This is not quite strict liability, but close (See p. 83, n. 3) 2. Doing the proscribed act • They are appropriate when: 1. Congress intends heavy regulation of the area 2. There is some inherent danger to the public New Jersey v. Sexton, p. 108 – (Mistake of Fact) • Mistake of fact (M.P.C.): Applies to the mens rea. Doesn’t require objective reasonableness-of-belief (Alkon’s slides) • Mistake of fact (Common Law): Applies to specific intents and to general intents if reasonable (NJ requires objective reasonableness-of-belief) • Some evidence of mistake causes a BURDEN SHIFT o Prosecution must now prove that you were not under a mistaken belief beyond a reasonable doubt o The defense does not have to prove mistake beyond reasonable doubt (Alkon PP) Rhode Island v. Yanez, p. 116

Mistake of fact and statutory rape o There’s a presumption that the minor was coerced and any sex is involuntary o In Sweden, prostitutes are viewed as victims; here they are offenders o The theory is totally regarding protection for the victim, not regard for the offender. Its similar in that regard to a public welfare offense (danger to public worth sacrifice of the individual.). United States v. Scarmazzo, p. 123 • Mistake of Law – the basic rule is ignorantia legis neminum excusat, reasons: o We don’t want to promote bad lawyering (you cannot rely on counsel) o We don’t want to promote ignorance o We want compliance at all times to certain minimum levels of conduct • Texas Penal Code Mistake of Law legitimate defenses: o Official statement of the law in a written order by an administrative agency charged by law with responsibility for interpreting the law in question; OR o Written interpretation of the law contained in an opinion of a court of record or made by a public official charged by law with responsibility for interpreting the law in question.

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Causation
Causation only matters in result crimes like homicide. Causation in the criminal law is linked to the concept of personal responsibility for crimes. Two Major Common Law Legal Causation Tests: 1. Reasonable foreseeability (acts based, what did or should he have foreseen?) 2. Independence of the intervening forces from the defendant’s acts (results based, what happened, and was personal responsibility present?) M.P.C. Approach: 1. Proximate cause goes into the mens rea analysis 2. If strict liability, then it’s a “probable result of defendant’s conduct” test Causation caveat M.P.C. § 2.03 • If you have the mindset for the same kind of injury or harm and the harm that actually occurred is not too remote or accidental in occurrence, then guilty • Also, if the only difference is that you meant to injure a different person or harm a different property, then guilty • Also guilty when the risk known or should have known was greater than the actual risk Not too remote or accidental in occurrence: It is possible to act and intend an injury and that the injury occurs, but in an unexpected and unusual way that gets you off the hook. The M.P.C. writers intentionally blurred this line in order to give weight to subjective factfinder considerations about moral culpability and chance happenings. The Year and a Day Rule: Under common law they had to die within a year and a day in order to meet the causation test. 2/8/2010 Alkon’s Basic Causation Approach: 1. But-for test 2. Was there an intervening cause? 3. Was it Dependant or Independent?

Dependant definition: Occurs in reaction or response to the defendant’s conduct, i.e., reasonably related to the defendant’s conduct. 4. Was it abnormal? Independent definition: A coincidental force that acts only because the defendant placed the victim in a particular situation; not reasonably related to the defendant’s conduct. 5. Was it foreseeable? Eggshell doctrine: This applies as a general rule in criminal law. Nevertheless, without blameworthiness, correct level of deterrence, and at least colorable proximate cause, then the doctrine might not hold up as well as it does in Tort law. Negligent Medical Care: As a dependant intervening cause, it must be abnormal under common law to not supercede. In modern cases, negligent med mal has been foreseeable and proximate while grossly negligent and intentional med mal has superceded. Note 3, p. 178: Texas follows the rule that “a conviction cannot be had on uncorroborated accomplice testimony.” 2/15/2011 The Feigning Accomplice – For complicity you always need: 1. intent to assist the primary party to do the conduct that forms the act 2. the mental state required for commission of the offense When you have a feigning accomplice, often they get off on the mens rea for the specific resultative intent crimes, but they can be held liable for general intent crimes if they intend to cause the “conduct that forms the basis of the act.”

Accomplice Liability
Mens Rea of Accomplice Liability: 1. Intent to assist a principal actor in committing a target offense 2. Intent that the principal actually commit that act Standeffer, p. 165 Traditional Common Law • Principals in the first degree • Principals in the second degree (present or constructively present) • Accessories before the fact (helped, but not present) • Accessories after the fact The modern approach is to merge the first three of these. • Sometimes, you have to “protect the record” by raising defenses that you know won’t fly Lane v. Texas, p. 174 – “How much encouragement is ‘aiding and abetting?’” • If you are in the car, watching the crime, you have to do some affirmative act • Alkon: On cross-exam you would try to get her to admit that she nodded her head or laughed or in any minute way offered support or encouragement United States v. Santana, p. 176 • The Traditional elements of aiding and abetting: o (1) Associated himself with the unlawful venture o (2) Participated in it as something he wished to bring about o (3) sought by his actions to make it succeed Hypo where the Mom tells son, “it would be for the best” to kill his wife: • Rule: Mere words are not enough on their own to count as encouragement

Rule: If her relationship with her son was one of dominance or “innocent instrumentality” where she influenced his actions, then it could potentially rise above, “mere words” Guy says “I’ll tell you where you can buy drugs from” hypo: • The Conduit Defense: You argue that you only passed information along a conduit. • Counterargument: To counter the conduit, you must show a connection between the seller of the drugs or whatever and the informer. • Problem: The crime is the sale, not the purchase, so helping the buyer is not the right help. Furtherance Rule: The act in furtherance of the crime does NOT have to actually help. People v. Kaplan, p. 191 In this jurisdiction they have a statute creating a thing called a “facilitator” • Accomplice: must have intentionally aided the principal in the result • Facilitator: must provide assistance “believing it probable” that aid being rendered • The court convicts the guy for the drug sale on a knowing standard Pennsylvania v. Potts, p. 196 • This case is parallel to Kaplan except it is murder with specific intent to kill instead of the knowing sale of drugs • These two cases illustrate that despite most courts saying that you have to intentionally aid the principal actor, you generally have to share in the appropriate mens rea for the crime Vicarious Liability (Liability for Corps. and Agents) Alkon PP: • Corps mostly only held responsible for strict liability offenses like public welfare or regulatory offenses. • Two policies behind Corp. liability: (1) Deterrent: Better Management; (2) If shareholders benefit from criminal behavior, then they should bear the legal consequences M.P.C. Approach • You have to do the violation in the course of the scope of office or employment or in such a way as the law provides • C-level and board responsibility: Culpable when they authorize, request, command, perform, or recklessly tolerate. You can generally hold both the actor and the corporation responsible, not just either one General Rule from South Dakota v. Hy Vee: Merely stating or promulgating policies will not insulate a corporation from liability. In S.D. v. Hy Vee, the court reads the statute and decides on strict liability, whereas with Iowa v. Casey’s General Stores, the court decides on a knowing standard. 2/17/2011 Attempt State v. Maestas, p. 219 General Rule: The common law requires that attempt crimes must always consist of (1) an intent to commit the corresponding completed crime and (2) a substantial step toward realization of that crime. • Attempt is, therefore, always a specific intent crime, but Utah decides to allow “knowing” attempts at a result as to count as a crime as well as intentional attempts. Class Notes: The substantial step usually requires some kind of overt act. M.P.C. Criminal Intent

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Definition of Attempt: A person is guilty of an attempt to commit a crime if, acting with the kind of culpability otherwise required for commission of the crime, he: (a) purposely engages in the conduct of the crime, assuming the attendant circumstances are what he believes them to be (b) For resultative crimes, acts or omits with purpose of causing result without further conduct on his part (c) purposely acts or omits, with circumstances as he believes them, constituting a substantial step in a course of conduct planned to culminate in his commission of the crime Substantial step: The M.P.C. states that conduct must be “strongly corroborative” of purpose, then goes on to explain by analogy by listing conduct that would pass the substantiality test. 1. lying in wait, searching for or following the contemplated victim of the crime; 2. enticing or seeking to entice the contemplated victim of the crime to go to the place contemplated for its commission; 3. reconnoitering the place contemplated for the commission of the crime; 4. unlawful entry of a structure, vehicle or enclosure in which it is contemplated that the crime will be committed; 5. possession of materials to be employed in the commission of the crime, that are specially designed for such unlawful use or that can serve no lawful purpose of the actor under the circumstances; 6. soliciting an innocent agent to engage in conduct constituting an element of the crime § 5.01 (substantial step) goes on to say that there is such a thing as attempted complicity (§ 2.06) Alkon: “Mere agreement is not enough on its own, its just like mere words, e.g., if two guys in prison agree to kill some peeps when they get out, then that’s most likely just prison talk, and not a crime.” The M.P.C. allows police to nab earlier than the common law did, generally. The following were common law tests for substantiality (substantial step was also a common law term): 1. The physical proximity doctrine under which defendant must have committed an overt act that was proximate to the completed crime, or directly tending toward the completion of the crime, or amounting to the commencement of the consummation. 2. The dangerous proximity doctrine under which the court considers the gravity and probability of the offense, and the nearness of the act to the crime 3. The indispensable element test (similar to the proximity tests) which emphasizes whether an indispensable aspect of the criminal endeavor remains over which the actor has not yet acquired control 4. The probable desistance test which focuses on whether, in the ordinary and natural course of events, without interruption from an outside source, defendant’s conduct will result in the crime intended 5. The abnormal step approach under which the focus is on whether defendant’s conduct has gone beyond the point where the normal citizen would think better of his conduct and desist 6. The res ipsa loquitur or unequivocality test under which the defendant’s conduct manifests an intent to commit a crime Locus poenitentiae: This is the “place of repentance” where you can either withdraw from a contract or change your mind about completing a crime. Sometimes, you must take action in subtraction of the result if you have previously furthered the result. Impossibility

People v. Dlugash, p. 249 – At common law, factual impossibility was not a defense while legal impossibility was. The M.P.C. solidly makes the culpability of the actor’s mindset determinative. • Hybrid impossibility requires you to analyze either the actor’s intent or the outcome. Factual impossibility: Not a defense. Inherent factual impossibility: Might be a defense. This is when “a reasonable person would view as completely inappropriate to the objectives sought.” Like trying to sink a battleship with a pop gun or trying to murder someone by placing a voodoo malediction on them. [M.P.C. recognizes] Pure legal impossibility: This is a defense, but it is also pretty much the same thing as the legality principal; a principal that states that we do not punish behavior deserving opprobrium if it is not actually in violation of a specific law when committed. See check forgery, Dressler, p. 407. Hybrid impossibility: These are mistakes as to legal status of conduct. They may be characterized as either legal impossibility (an available common law defense) or factual impossibility. Statutory interpretation/semantics are key. E.g. Is a dead body a person or a corpse? Can you attempt murder? • Most states have abolished the hybrid defense. • The M.P.C. abolishes it. M.P.C. Attempt (from Dressler) Nature of Attendant Result of Conduct Conduct Circumstances Purposely X X X Knowingly X* X* X* Recklessly X* Negligently X* * Common law rule uncertain Alkon: “The M.P.C. allows police to step in earlier than the common law did.” Attempt requires two intents: (from Alkon) 1. Intent to do the actus reus 2. Acts performed with the “intention that is required by the target offense” –Alkon’s slides. See U.S. v. Jackson, p. 232, applying Mandujano re: Culpability = crime + “Substantial step” that is “strongly corroborative” Alkon: “Attempt is often (but not always) considered a specific intent crime, however, the target offense can be a general intent crime.” (Specific Intent v. General Intent, pasted from Alkon’s slides) • Many (if not most) modern penal codes, including the MPC, expressly include a mens rea term (ex., intentional, knowing…etc) and don’t use the terms “specific” or “general” intent. • There is no single definition of what is general or specific intent. • Different courts may consider the same offense a general or specific intent offense. • Specific Intent o Definition of the crime expressively includes an intent or purpose to do some future act or to achieve some future consequence or o Provides that the actor be aware of a statutory attendant circumstance o Ex: common law burglary: “breaking and entering of the dwelling of another in the nighttime with intent to commit a felony.” • General Intent o Definition does not include any specific intent

o Ex: Battery: “intentional application of unlawful force upon another.” It is possible to attempt to commit a general intent crime. 2/22/2011 Abandonment Most scholars believe this was not a common law defense. Most jurisdictions do not recognize it today. The M.P.C., however, does recognize it. If recognized, the abandonment defense requires: 1. Voluntary renunciation 2. Complete renunciation State v. Workman, p. 240 – represents the minority rule that once a substantial step has been taken, you can no longer abandon Alkon’s favorite quote is from People v. Rizzo, p. 230: “the difficulty is not in the law, but in the application of the law to the facts” 2/28/2011 Inchoate offenses: Attempt, Conspiracy, Solicitation. Conspiracy issues: 1. “Guilty by association” 2. Large amounts of ∆s brought in and innocent people getting swept up in the attack Memorable Quotes: • Learned Hand – conspiracy is the “darling of the modern prosecutor’s nursery.” • Cardozo – “the tendency of a principal to expand itself to the limit of its logic.” Conspiracy Requires: 1. Actus Reus a. The conspiratorial agreement 2. Mens Rea a. Intent to agree with another person to commit the target act b. Intent to commit the target act itself c. A specific intent crime at common law 3. Overt Act a. Only required in some jurisdictions. Distinct from the actus reus. Miller v. Wyoming, p. 257 • Most jurisdictions with conspiracy statutes follow the unilateral M.P.C. approach Unilateral v. Bilateral • Unilateral reasoning emphasizes the “objectively manifested firm purpose in committing a crime” > still the approach in the federal system > eviscerates sting operations where the agent is not really planning on doing the offense > Rationalization: Most of the time you can still bust the perp for attempt, so you are not usually wholly exculpating people • Bilateral reasoning emphasizes the increased danger to society of from groups of criminals. > makes sting operations much easier M.P.C. § 5.03 Unilateral Approach: 1. Guilty when agrees to commit, solicit, or attempt crime 2. Guilty when agrees to aid commission, solicitation, or attempt of a crime

Wharton’s rule (not recognized by the M.P.C.): Only crimes that necessarily require two people get the bilateral approach. E.g. Bribery, bigamy, adultery. This rule recognizes the absence of group danger from many crimes. • Drug Sales: These require two to tango. Many courts following Wharton’s rule generally, still allow convictions if an attempt or completed sale occurred. Palmer v. Colorado Rule: 1. You can’t conspire to recklessly or negligently commit a crime 2. You can, however, recklessly or negligently attempt a crime United States v. Hassoun, p. 266 • The maxim, “mere preparations do not rise to the level of intent” doesn’t apply to conspiracy • As a prosecutor, you can get a conspiracy conviction, sometimes, on very little overt acts in furtherance and steps that would not be considered “substantial” Conspiracy v. Attempt (from Alkon’s PowerPoint) • Common law conspiracy required no act in furtherance. Even if an act is required, it can be trivial and wholly preparatory. • Common law considered that an agreement was concrete evidence of (1) dangerousness and (2) firm criminal intention United States v. Blankenship, p. 270 - (Knowledge is not Intent) • Falcone rule: Facilitating one crime by selling the means for the crime does not enculpate you for all your buyer’s crimes. Also, buying once does not enculpate you with the seller. • Direct Sales rule: Buying doesn’t make you a conspirator with the seller UNTIL you sell a huge quantity over a significant span of time • Learned Hand test: “a supplier joins a venture only if his fortunes rise or fall with the venture’s, so that he gains by its success’ o Under the Learned Hand test, this court sees it as persuasive that the meth trailer renter’s compensation was tied to his risk, rather than a portion of the profits. • Interestingly, the U.S. Code punishes conspiracies equal to the actual crime (18 § 846), BUT they follow a bilateral approach and require an overt act (18 § 371). Rule (from Alkon’s PP): Conspiracy can be tacit and contemporaneous. See U.S. v. Barnes, p275. United States v. Mercer, p. 278 • Rule: Drug buyers conspire with the seller (under a bilateral system) only when evidence shows a continuing relationship that results in the repeated transfer of illegal drugs to the purchaser. [similar to the Direct Sales rule] • Carcaise rule: You can conspire with unknown people when numerous statements reference “the guy,” “my friend,” or “these people” and details of delivery. Hearsay exception: If you prove substantially and independently that a conspiracy exists; then because the co-conspirators are now agents of each other, their testimony about what they said to each other is now admissible evidence. 3/1/2011 Overt Act in Conspiracy: It doesn’t have to be much, but may have to be more than “mere words.” In the federal system, it must be “to effect the object of the conspiracy.” • Many jurisdictions don’t even require one. Pennsylvania v. Finnegan, p. 286

Only one conspirator needs to do the overt act and the act satisfies the overt act requirement for all the conspirators. California v. Sconce, p. 288 (Withdrawl) • In California, you can’t withdraw from your conspiracy after the overt act • If the jurisdiction allows withdrawal they normally require it, like with attempt, to be “voluntary” and “complete” Renunciation • Renunciation is not withdrawal, renunciation requires you to “thwart the success of the conspiracy” – M.P.C. It must be voluntary and complete and it is a complete defense. New Jersey v. Hughes, p. 293 • If you commit conspiracy, then renounce by contacting the police about it, then apparently change your mind and commit the crime anyways, your renouncement defense is vitiated. Merger The rule in most jurisdictions is that a conviction for conspiracy to commit a target crime does not merge with a conviction for the crime itself. New Mexico v. Villalobos, p. 295 • The Two-part Swafford test: o (1) Is the conduct underlying the offenses unitary? I.e. Does the same conduct violate both statutes? o (2) Did the legislature intend to permit multiple punishments? • Conspiracy doesn’t merge, in this jurisdiction, because the separate danger inherent in group crimes makes conspiracy sufficiently distinguishable from the substantive crime to justify punishing both separately. Alkon quote: Some jurisdictions statutorily merge all inchoate crimes. Normally, though, attempt merges, conspiracy does not merge. Pinkerton v. United States, p. 298 • Pinkerton Doctrine: Coconspirators are held culpable for the criminal acts of their coconspirators undertaken in furtherance, and within the scope, of the conspiracy. • The little-followed common law rule is that conspiracy merges when the offense is a felony. • Braverman rule: One conspiracy is one crime, even if it has numerous unlawful objects • Under Pinkerton, to avoid liability, the crimes of your co-conspirators must be (1) not done in furtherance of the conspiracy; (2) fall outside the scope of the conspiracy; or (3) be an unforeseeable consequence of the conspiracy This is different from the basic complicity rule because with complicity you have to give encouragement, not just any act, and also you have to intend the crime, whereas with conspiracy, the crime just has to be within the scope of the conspiracy. Everritt v. Georgia, p. 304 • The case emphasizes the foreseeability aspect of Pinkerton, a SCOTUS case. • Conspiracy to commit an arson doesn’t make it probable that a murder will occur. U.S. v. Aldawasari • Federal system follows the “substantial step” M.P.C. approach. • You can be an accomplice to an attempt. • Accomplice Liability requires:

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o Share in the MR for the substantive crime o Intent to assist o Intent that the principal commit the crime 3/3/2011 Homicide Homicide: The killing of a human being by another human being. Criminal Homicide: Killing without justification or excuse. Mens Rea is the key element here. Common Law Criminal Homicide • Murder: “The killing of a human being by another with malice aforethought” • Manslaughter: “unlawful killing of a human being by another human being without malice aforethought” • Felony Murder: “an intentional killing where the intent to kill is imputed, or transferred, from the intent to commit the felony that is the felony-murder predicate. • Common law just had murder, no degrees. o Judges, however, often distinguished between “voluntary,” “involuntary,” and “unintentional.” Malice, states of mind • Intention to kill (Express Malice) • Intention to inflict grievous bodily injury (Implied Malice) • Extreme reckless disregard for the value of human life (“depraved heart”) (Implied Malice) • Intention to commit a felony during the commission or attempted commission of which the death results. (Implied Malice) Manslaughter at Common Law • Homicide without malice aforethought and without justification or excuse • Types o “Sudden heat of passion” as result of “adequate provocation” o Lawful act, done in unlawful manner without due caution and circumspection (equivalent to modern criminally negligent homicide) o Unintentional killing during the commission or attempted commission of an unlawful act (other than a felony) (sort of equivalent to modern “misdemeanor manslaughter”) Modern Approaches include (1) Degree system; (2) M.P.C. (3) Texas [which we don’t cover] Degrees • First Degree: “willful, deliberate, and premeditated” murder or murder committed in a specific way, e.g., “lying in wait.” • Second Degree: “All other forms of murder that are not first degree. • Felony Murder: Counts as 1st degree mostly, some count as 2nd degree. • Manslaughter: o Voluntary: intentional killing mitigated from murder due to provocation or excuse. o Involuntary: No element of malice. Usually gross negligence or recklessness. o Vehicular: Sometimes a separate statutory offense. M.P.C. Criminal Homicide

“Unjustifiably and inexcusably take the life of another purposely, knowingly, recklessly or negligently.” (no degrees) • Criminal Homicide can then be broken into Murder, Felony Murder, Manslaughter, and Negligent Homicide • Murder: “unjustifiable, inexcusable, and without mitigating circumstances.” o Requires MR of Purposely, Knowingly, or “Recklessly, under circumstances manifesting extreme indifference to the value of human life.” o Malice aforethought is a non-issue • Felony murder: Extreme recklessness while actor or his accomplices are engaged in commission or attempt of or flight from a list of specified dangerous felonies. • Manslaughter: Reckless killing with mitigating circumstances of “extreme mental or emotional disturbance for which there is a reasonable explanation or excuse” to be determined from the “viewpoint of the person in the actor’s situation under the circumstances as he believes them to be.” • Negligent Homicide: Equivalent to common law involuntary manslaughter. Texas uses a modified M.P.C. Approach (no degrees) We have learned a substantial amount of death penalty jurisprudence and, after this class, will be fully prepared to perform specialized appellate-level death penalty advocacy. State v. Ramirez, p. 308 – (Premeditation) • Lapse of time is probative, but not dispositive • A jury may be instructed that “premeditation may be as instantaneous as successive thoughts of the mind” IF they are also instructed that “premeditation cannot be both impulsive and premeditated.” • Majority says “actual reflection” is required. Dissent says it is not. State v. Davis, p. 315 • Deliberation need only be momentary. • This rule, of course, mucks up the degree distinctions, but what are you going to do? State v. Redmond, p. 318 • Adequate cause: “Cause that would reasonably produce a degree of passion in a person of ordinary temperament sufficient to substantially impair an ordinary person’s capacity for self-control.” (Objective standard) • Words alone are not sufficient, no matter how opprobrious. • Alkon: Some jurisdictions allow a voluntary manslaughter instruction with or without sufficient evidence of “adequate provocation” and let the jury decide. State v. Cornett, p. 321 • Rule: Provocation requires objective and subjective components o Objective: (1) reasonable provocation; and (2) reasonable person provoked would not have cooled off between the time of the provocation and the final blow o Subjective: (1) ∆ provoked; and (2) ∆ did not cool off • This court refused to offer both a voluntary and involuntary instruction, effectively telling ∆ to pick one or the other, but not both. The court probably should have left it to the jury because some evidence indicated both might be true, making it a factual distinction. 3/17/2011

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Battery Two types of English common law batteries: 1. Caused bodily injury 2. Caused “offensive touching” Mental state requirements included either: 1. Intent to injure or touch offensively, OR 2. “Criminal negligence” Assault Common law assault = attempt to commit a battery. Had to be: 1. Very close to achieving the result of battery, AND 2. Had “present ability” to do so Assault mental state = the intention to commit the battery. Mayhem • The causing of physical impairments affecting the ability to fight in battle. • This crime became obsolete and was replaced with “aggravated” forms of A&B The four elements that distinguish “aggravated”: 1. The causing of serious bodily injury instead of bodily injury; 2. The use of a deadly weapon; 3. The victim’s status as a law enforcement officer; and 4. The intent to commit felony crimes, such as murder, robbery, or rape. Modern changes Over time a majority abandoned “offensive touching” and a majority borrowed the “frightening” tort version of assault. Just like the tort version except “bodily injury” is substituted for “harmful or offensive touching.” “Frightening” tort version of assault requires: 1. The act of causing fear of bodily injury, AND 2. The apparent ability to cause such injury The M.P.C. treats “forms of offensive but not physically endangering behavior” as minor offenses such as disorderly conduct or harassment. Modern approach: • Bodily injury = simple battery • Serious bodily injury = aggravated battery M.P.C. 1. Simple Assault. A person is guilty of assault if he: a. Purposely, knowingly or recklessly causes bodily injury to another; or b. Negligently causes bodily injury to another with a deadly weapon 2. Aggravated Assault. A person is guilty of aggravated assault if he: a. Causes [serious bodily] injury to another purposely, knowingly or recklessly under circumstances manifesting extreme indifference to the value of human life; or b. Purposely or knowingly causes bodily injury to another with a deadly weapon “Bodily injury” = “physical pain, illness, or any impairment of physical condition.” “Serious bodily injury” = “bodily injury which creates a substantial risk of death or which causes serious, permanent disfigurement, or protracted loss or impairment of the function of any bodily member or organ.” “Reasonable fear” – some states require reasonable fear in a “frightening” type assault. Consent

Consent is rarely a defense to crimes that result in bodily injury. E.g. hazing, gang initiation. • See p. 381 re: consent in sports… (1) “by-product of game; (2) foreseeable behavior in play… other limitations including lawful v. marginally lawful sports, etc… 3/24/2011 Rape and Sexual Assault Rape = General intent crime, therefore, intoxication defense does not apply Corroboration requirement = Traditionally, yes. Modern, no. Rape Shield Laws: These limit or prevent evidence of prior sexual conduct. [add to this from Dressler] The equivocal conduct test: If substantial evidence indicates ambiguity towards consent, then a Mayberry instruction on the consent defense is appropriate. If you claim express consent, then the jury just decides whether to believe you or not about whether the express consent occurred. Mayberry instruction = instruction on the defendant’s reasonable and good faith, but mistaken belief as to consent. Only appropriate with equivocal conduct, not when you claim express consent. General Elements of Rape: Intercourse with a non-spouse 1. forcibly 2. by means of certain forms of deception 3. while asleep or unconscious; OR 4. on a female unable to give consent (age, drugged, mental condition, etc…) 5. Traditionally, corroboration required (also, MPC), modern trend, no corroboration required. Generally, threats of force require: 1. Subjective apprehension of serious harm AND 2. Reasonable apprehension; UNLESS 3. Male “knowingly” takes advantage of the subjective fear Traditional Rules for the Force Element 1. must physically (not merely verbally) resist OR 2. force threatened that would cause reasonable fear of serious injury Modern efforts abolish or lighten the standard from its old “to the utmost” level. The New Jersey Supreme Court now defines rape, essentially, as intercourse without securing permission in words or action before proceeding. This, awkwardly, leads to testimony about gyrations and semantics. State v. Baby, p. 412 • Holding: If consent is withdrawn during intercourse, cessation must occur immediately, ostensibly, even “five seconds or so” is too much. Fraud in the inducement: This is considered mere salesmanship, even with base lies and deceit. Fraud in the factum: This is when you mischaracterize sexual acts as non-sexual. Mens Rea General Rule: Not guilty if defendant entertains a genuine and reasonable belief that the female voluntarily consented. Because rape is a general intent offense and only requires a morally culpable mindset, you cannot negligently or recklessly believe in consent. • Some American jurisdictions have held even a reasonable mistake of fact regarding consent to be an ineffective defense. This, effectively, turns rape into a strict liability crime. • California, in Williams, requires “substantial evidence of equivocal conduct” Reynolds v. State, p. 421

The court imposes a recklessness mens rea standard as to the presence of consent, which, in this jurisdiction, is an element of the statutory offense. • By doing so, there is a subjective component; the offender must be culpable by at least knowing of a risk of non-consent and disregarding it. Model Penal Code Advocates a four year age gap for kids. Has an MR of purpose, knowing, or reckless. MPC splits rape into first and second degree felonies when (1) serious bodily injury inflicted; or (2) not a “voluntary social companion” who had “previously permitted sexual liberties” with ∆. The MPC tries to take the focus off the Byzantine semantic issue of consent and put it on the amount of aggression and/or overreaching imposed by the defendant.
Statutory Rape In re G.T. • Dissented judicial modification that two minors cannot statutorily rape each other, i.e., it must be someone over 16 and someone under 16. M.P.C. advocates a four year age gap. Proof Limitations • There are a bunch of rape shield statutes and defendant’s rights have eroded to where sometimes evidence of their prior indiscretions is admissible Evidence Barred by Rape Shield Statutes • All rape shield laws require no admissibility unless probative value outweighs prejudicial effect State v. Alberts, p. 440 • False-claim doctrine: If someone lies about amorous activity in the past, you can bring it in if (1) the complaining witness made the [false] statements and (2) the statements are false, based on a preponderance of the evidence. • Policy: the probative value outweighs the danger of prejudice • Remanded for a hearing (in limine, probably) to decide if both requirements were met Even when a victim’s prior sexual conduct with a defendant is admissible under rape-shield laws, such evidence will not be admitted unless the trial judge also determines that is probative value outweighs its prejudicial effect. Rape Trauma Syndrome State v. Kinney, p. 448 • Rape Trauma Syndrome: An admissible, albeit ephemeral thing. • Testifying that almost no rapes are falsely reported goes beyond expert testimony and begins to inappropriately establish a hegemony over the jury’s province One scholar noted that R.T.S. would not pass the Daubert test (federal test) for expert testimony Fresh Complaint Testimony Originally, there was a hue and cry requirement Fresh complaint doctrine requires w/a fresh complaint to a non-police witness if: 1. a witness could testify only to the fact of the victim’s disclosure and could not describe a. the victim’s actual words or demeanor during the disclosure b. the time frame of the disclosure 2. the victim could testify only as to the identity of the witness to whom the disclosure was made, and could not describe the actual words of the disclosure; 3. the victim’s delay in disclosure would result in the exclusion of any testimony about that disclosure The “prompt report,” along with the restrictions eroded Mental Health Examination of the Victim Hamill v. Powers, p. 453

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Rape situation with a mentally retardation person. Issue is whether defense counsel can get an expert witness to do an exam since the prosecution gets to. • Trial court says no, but writ of mandamus says yes. There’s a funny quote, “the Due Process clause ‘has little to say regarding the amount of discovery which the parties must be afforded, . . . it does speak to the balance of forces between the accused and his accuser.’” Admissibility of ∆’s Prior Sex Crimes General rule, not admissible. Exceptions: 1. shows motive 2. shows intent 3. shows opportunity 4. shows preparation 5. shows plan 6. shows knowledge 7. shows identity 8. shows absence of mistake or accident For Rape and Child Molestation, on the other hand, Rule 413 allows it for “bearing on any matter to which it is relevant.”

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3/24/2011 Self Defense Self Defense generally has three components: (1) Necessity; (2) Proportionality; (3) reasonable and actual belief; (4) Imminence or immediacy. MPC • MPC approach is purely subjective, except that if you are reckless or negligent about your belief then you may be charged with a crime requiring a reckless or negligent MR. • The MPC substitutes “imminent” for “immediately necessary… on the present occasion.” • You cannot resist arrest from a known police officer unless excessive force is used. • The MPC favors retreat for deadly force, but has a castle exception, inter alia • The defense cannot be asserted against killed innocent bystanders, but the facts could support a lack of MR on the shooter’s part for bystander murder The Aggressor limitation: Aggressors cannot claim self-defense. On one hand, mere words do not make you an aggressor. On the other, the provocation exception means you can’t do any provocation with intent from the beginning to kill or seriously injure the victim. On a third hand, if you provoke someone and they respond with excessive force, then you are no longer the aggressor. On your lap, if you make a good faith withdrawal from the conflict and notify of withdrawal, then you are no longer an aggressor. Rule from PP: Escalating the altercation makes you the aggressor. Duty to Retreat Common Law: No requirement to run away. Frontier spirit. States that do have a duty to retreat only require it when ∆ knows can retreat in complete safety. Castle doctrine • MPC (& a majority) doesn’t have a duty to retreat from a co-occupant State v. Daniels, p. 468 • Imminent ≠ immediate

Connell v. Commonwealth, p. 473 • You only need more than a scintilla of evidence to support an excusable homicide instruction. “Imperfect” or “Mistaken” Self-Defense: This happens when (1) you provoke a deadly attack and fail to retreat; OR (2) you unreasonably believe you had to use the level of force used.
M.P.C. – only an honest belief in the need for force is necessary for the defendant to clam self-defense successfully. An actual but unreasonable belief in the necessity for the use of force justifies an intentional act, but not a reckless or negligent act.

Defense of Others The Alter Ego Rule: This rule states that defense of others is derivative of defense to self. The MPC and many jurisdictions do not follow the alter ego rule. • Some jurisdictions apply the alter ego rule strictly to deadly force situations. Duran v. State, p. 490 • If the prosecutor charges you with recklessness or negligence, you are barred from raising a self-defense defense. • This seems to give the prosecution an unfair tactical advantage/loophole. Texas Penal Code 1. Imminence = immediate 2. Defense available to aggressor, but non-aggressor presumptively used reasonable force 3. mere words not enough 4. no retreat requirement 5. seriousness = unlawful force 6. reasonable belief required 7. deadly force available when deadly force threatened, robbery, sexual assault, aggravated kidnapping, castle doctrine (must attempt to enter unlawfully with force). or when not aggressor and not committing a crime, no duty to retreat Spousal Battery Syndrome may indicate subjective belief of imminence. 3/29/2010 Self-Defense (Regular) at Common Law 1. Necessary a. Retreat? b. Warning? 2. Proportional 3. Reasonable 4. Not Aggressor 5. Imminent, traditionally interpreted as immediate 6. Objective and subjective belief Self Defense (Deadly) at Common Law 1. Unlawful deadly force Self Defense (Regular) at MPC 1. Instead of imminent, it is “immediately necessary on the present occasion.”

2. Subjective, but if reckless or negligent, then must be charged with a crime with one of those mens reas. 3. Must retreat… complete safety 4. Castle doctrine… exception if you were the aggressor… no duty to retreat (rather than a presumption of reasonableness or necessity) Self Defense (Deadly) at MPC 1. Requires force or threat of force for death, serious injury, rape, or kidnapping. Property Defense (Deadly) at Common Law, p. 512 1. reasonable 2. prevent forcible entry of dwelling 3. intent to commit a felony once inside Property Defense (Deadly) at MPC 1. arson, burglary, robbery or other felony theft or destruction, AND 2. use or threat of deadly force Property Defense (Deadly Device) at MPC 1. Deadly 2. Customary or notice 3. Reasonable 3/31/2011 Property Defense Common Law: Generally, only non-deadly force can be used to protect personal property. At common law, however, deadly force can be used to prevent forcible entry of a dwelling if ∆ reasonably believes that the trespasser intends to commit a felony once inside. M.P.C. Force for Protection of Property Subjective immediate necessity + trespass or theft of self or others or re-entry or re-taking Caveats: Must be immediate or on fresh pursuit after dispossession + waiting for court order must impose an exceptional hardship. More Caveats: Must request desistence unless (1) useless, (2) danger, or (3) urgency to avoid substantial harm to the property. More Caveats: You can’t eject a trespasser if it would put him in danger of serious bodily harm. M.P.C. Deadly Force for Property Defense Acceptable reasons (1) someone tries to dispossess you of your house, without a claim to possession (2) to stop attempted arson, burglary, robbery, or other felonious theft or destruction as long as they either (a) threatened deadly force in the actor’s presence OR (b) not using deadly force would expose you or someone else to substantial danger of serious bodily harm Confinement You can use it as long as you release when the threat passes, unless they are arrested for a crime. When the Defense Extends to Devices 1. The device isn’t designed to cause or known to create a substantial risk of death or serious harm AND 2. the use is reasonable to a person in the actors shoes AND 3. the device is a (1) customarily used one OR (2) intruders are reasonably put on notice Law Enforcement Common Law: 1. Felony: Any force reasonably appearing necessary (up to and including deadly)

2. Misdemeanor: Any non-deadly force necessary M.P.C. Basic rule: You can use force that you believe immediately necessary to effect a lawful arrest. You have to try to announce the arrest and purpose unless impracticable. If there’s a warrant, you must believe that your warrant is valid or it must actually be valid. Deadly Force (1) Only for felonies; (2) only for peace officers or citizens believing they are aiding a peace officer; (3) you must believe that innocents are not at substantial risk of injury; and (4) the crime involved use or threat of deadly force OR substantial risk of serious danger if not apprehended soon. General Rule: Private citizens can use non-deadly force on suspects. They may use deadly force on someone who actually committed a felony (in some states, a violent felony). Necessity Defense State v. Culp, p. 525 • Interestingly, escaping from prison because you have a bad history there is a necessity rather than a duress defense because the threat is not from anyone in particular who is coercing into running from jail, but rather from a general fear of what may happen in jail. Common Law Necessity Defense: 1. Specific 2. Imminent 3. Threat of injury to his person 4. No reasonable alternative MPC Necessity Requires subjective belief of justifiable necessity AND (1) harm outweighs evil prevented by the violated law; (2) no statutory conflict; (3) no plain legislative purpose conflict; (4) If the substantive crime has an MR of Reckless or Negligent and you were reckless or negligent in getting yourself into the situation, you can’t invoke the defense. Proving Justification Defenses There are three burdens: 1. The Burden of Pleading: You have to plead stuff to have it considered. 2. The Burden of Production: Prosecution must produce evidence “beyond a reasonable doubt” of each element of the crime. Defense must produce evidence of defenses. 3. The Burden of Persuasion: Defendants can NEVER be required to disprove an element of a crime. This is due process. Mullaney v. Wilber (SCOTUS, 1975). p. 533. There are three potential standards for the Defense’s Burden of Production: 1. The scintilla standard – low 2. The substantial evidence standard – medium 3. The sufficient evidence standard – high (SCOTUS set this as the max possible standard in Mathews v. U.S., p. 532) Duress Common Law Duress: Requires (1) an unlawful threat (2) from a person that (3) causes the defendant to do a crime. 1. Imminent force; AND 2. Reasonable person couldn’t resist the threat

Patty Hearst’s brainwashing argument ultimately failed. MPC Duress: 1. Threat of unlawful force that ordinary person couldn’t resist; 2. You can’t recklessly put yourself in a probable coercive situation, or negligently if the crime involves a negligent MR 3. The presumption that wives are coerced when their husbands are present is abolished 4. No imminence requirement 5. Does not bar the Duress Defense from intentional homicide Insanity Insanity is a last-ditch defense that rarely gets raised. Less than two percent of insanity defenses prevail. Policy: (1) those unaware and unappreciative of the nature and quality of their actions cannot be deterred; (2) retribution makes no sense against the incompetent. M’Naghten Test: 1. Defect of reason, from disease of the mind 2. Consequently, does not know the nature and quality of the act; OR 3. Does not know that he shouldn’t do it AND 4. It was against the law Four Strains of Insanity Developed: 1. Cognitive incapacity 2. Moral incapacity 3. Volitional incapacity, i.e., the irresistible impulse test 4. product-of-mental-illness test SCOTUS in Clark v. Arizona held that: “Observation evidence” can be admitted for mens rea from either lay or expert witnesses, BUT a state may restrict “mental disease” evidence to the insanity defense if they so choose BECAUSE this eliminates a backdoor way of confusing the jury and getting someone exculpated on insanity rather than obtaining an NGBRI verdict. A strong dissent would hold that highly probative evidence may not be withheld, especially because it requires the jury to decide the case in a “fictional world” where mental illness does not affect a person’s mindset. Courts can involuntarily administer drugs to get a ∆ competent to stand trial for serious, but nonviolent crimes if: 1. medically appropriate 2. substantially unlikely to have side effects that may undermine the fairness of the trial 3. taking into account less intrusive alternatives
Notes • The irresistible-impulse test spawns from the idea that the mental illness creates a form of duress on the actor that absolves his free agency. • M’Naghten is often construed that culpability depends on the culpability of the hallucination. • Insane defendants must be committed until they are sane enough to proceed. o This commitment, however, cannot, under equal protection and due process, be indefinate • Death row inmates cannot be killed until sane. • If a ∆ has capacity to reject an insanity defense, then he may, otherwise, the court may sua sponte impose the defense on him at the court’s discretion

MPC Insanity Defense: 1. result of mental disease or defect

2. lacks substantial capacity EITHER a. appreciate wrongfulness OR b. conform to requirements of law Diminished Capacity Defense: You argue that you lacked capacity to form the mens rea. Children under seven are sometimes presumptively not able to form a mens rea. 4/7/2011 M’Naughten Test (Two cognitive prongs, requires knowledge) Requires a mental disease or defect that causes one of these results: 1. did not understand the nature or quality of the act; OR 2. did not know the wrongness of the act a. moral wrong (wrong in society’s eyes, subject to the deific command rule) b. legal wrong Product Test (One but-for prong) Requires a mental disease or defect 1. But-for the defect, ∆ wouldn’t have done the crime “Irresistible Impulse” Test (one volitional prong) Requires an irresistible impulse. This is an extreme test and requires absolute uncontrollability. It is referred to as “taking away one’s free agency” by “duress caused by mental disease” MPC Test (1 cognitive prong, 1 volitional prong, requires appreciation) Requires a mental disease or defect that causes: 1. ∆ couldn’t appreciate the criminality or wrongness of their act 2. ∆ couldn’t conform their conduct to the requirements of law Both prongs are modified by a substantial capacity requirement rather than a knowledge or absolute inability requirement. Texas allows only M’Naughten prong 2. Also, Texas limits the defense by a bar to abnormalities “manifested only by repeated criminal or otherwise antisocial conduct.” So, if your defect is caused by drug use, you might be SOL. Also, if your defect is that you are a psychopath with sadistic urges, then you are probably SOL. Jones v. United States • It’s constitutional to institutionalize someone indefinitely, even for minor misdemeanor offenses. So, watch out! • Most insanity acquittees spend more time in lockup than they would have spent had they plead guilty In re Devon T. • Common Law: No capacity under age seven. From seven to fourteen is a rebuttable presumption of incapacity. From fourteen on, full responsibility. • Probandum = quality of mind to be proved • Basic test for Capacity (Alkon): Can they understand right from wrong? • The closer you get to fourteen, the less presumption you get, at least here Theft The Eight 1. Theft by unlawful taking or disposition; 2. Theft by deception; 3. Theft by extortion; 4. Theft of property lost, mislaid, or delivered by mistake

Receiving stolen property; Theft of services; Theft by failure to make required disposition of funds received; and Unauthorized use of automobiles and other vehicles. Property that is subject to Theft At common law, domestic animals, real estate, and things connected to real estate like fixtures and growing crops were not property that could be larcenied. United States v. Farraj, p. 595 • Theft used to require you taking the identical form of something. Now you can take it by emailing confidential court documents to the other side in an attempt to sell them. U.S. v. Alavi expanded on Farraj by holding that the unlawfully obtained thing must be eventually transported in identical form and “some prior physical taking” must have happened. MPC Property Definitions: 1. Movable Property: Anything that you can change the location of including stuff in land and documents themselves. Immovable Property = everything else. 2. Property: Anything of value including… a bunch of stuff, lawsuits, rights, tickets, etc… 3. Services (in “theft of services”): labor, professional services, transportation, telephone or other public service, accommodation in hotels, restaurants or elsewhere, admission ot exhibitions, use of vehicles or other movable property. t and Embezzlement (Theft by Unlawful Taking) larceny + embezzlement = theft by unlawful taking or disposition Larceny Common Law Larceny: “Trespassory” taking of property that violated the “posessory” right of the owner. Some form of “asportation” required. MR of “intent to steal” interpreted as intend to deprive the owner permanently of the property. • Alkon sidebar: most states have joyriding statutes for permanent deprivation loophole United States v. Mafnas, p. 601 • The concept of “breaking the bale” and the “trespassory” taking requiring you to not be a bailee or a permissive user go back a long way and don’t go away easily MPC substitutes unlawful taking for asportation, trespass, and dispossession. “Intent to deprive permanently’ replaced with “purpose to deprive” another of his property. MPC Theft by Unlawful Taking or Disposition: 1. Movable property: unlawfully takes, or exercises unlawful control over, movable property of another with purpose to deprive him thereof. 2. Immovable Property: unlawfully transfers immovable property of another or any interest therein with purpose to benefit himself or another not entitled thereto. Deprive = (A) withhold property of another permanently or for so extended a period as to appropriate a major portion of its economic value, or with intent to restore only upon payment of reward or other compensation; or (B) to dispose of the property so as to make it unlikely that the owner will recover it. The Claim of Right Defense Most definitions require an honest belief in a claim of right. Binnie v. State, p. 604 • This court allows a scintilla of evidence that this guy thought that a hat on the floor of a department store was free go to the jury on an honest belief theory

5. 6. 7. 8.

Rule: Only a few states require the honest belief to be reasonable. The MPC (vast majority) stance is that theft has been and should be limited to purposeful appropriations. MPC Claim of Right: 1. Unaware that it was another’s property; or 2. Honest claim of right to the property or service involved or that he had a right to acquire or dispose of it as he did; or 3. Took property exposed for sale, intending to purchase and pay promptly, or reasonably believing that the owner, if present, would have consented 4/14/2011 Embezzlement Embezzlement covered the situation where a servant took property from a third party and kept it when it was his master’s and he was supposed to be entrusted with it. Eventual evolved definition: The fraudulent conversion of the property of another by an entrusted person in lawful possession who had the intent to convert the property for his or her own use. Batin v. State, p. 608 - Nevada • Facts: Slot operator case. You cannot charge embezzlement, when it is a regular theft. The crimes do not merge. MR for Embezzlement: Intent to convert to own use. Interestingly, claiming that it’s yours admits the element of intent, but possibly gives you a defense. Common Law: (1) entrustment and (2) intent to convert MPC Embezzlement: Abandoned the elements of (1) entrustment and (2) intent to convert. and replaced with (1) exercising unlawful control over property and (2) for movable property with purpose to deprive and (3) for immovable property with intent to benefit oneself idk how this is different from theft by unlawful taking… Larceny by Trick & False Pretenses (Theft by Deception) False pretenses covered where title was taken in addition to possession. MPC turned this whole deal into “theft by deception” Larceny by Trick This is when you trespass against possession by telling lies to get possession instead of taking it by stealth. There is a crime of failing to return rental property and sometimes there is a time frame after the deadline that, if it passes, is prima facie evidence of the crime. False Pretenses False pretenses came to cover title theft without dispossession. Requires (1) know that facts are false; and (2) say them with intent to defraud. (I think, p. 613) State v. Miller, p. 614 • Facts: Female prisoner promises love, but only wants money. She is charged with three counts of “theft by deception” • Issue: Can romantic intentions be faked and used to commit “theft by deception?” • Rule: (1) Creating a knowingly false belief; (2) Not correcting a knowing false belief that you confirmed; (3) Promising performance or delivery without intent to perform or with knowledge that will not perform MPC Theft (larceny by trick and false pretenses) A person is guilty of theft if he purposely obtains property of another by deception. He deceives if he purposely:

1. effectuates false impression 2. prevents another from acquiring impression 3. doesn’t correct false impression that he reinforced or knows about when he is a fiduciary or other confidant 4. doesn’t disclose a legal impediment Falsity about trivial things and “puffery” that would deceive and ordinary person in the group addressed do not count. The puffery rule also applies at common law (I think). Obtain = (1) effectuate transfer of legal interest to anyone; or (2) secure performance of labor or service Receiving Stolen Property Common Law Four Elements: 1. Receive 2. Knowing 3. Stolen 4. Intent to deprive the owner State v. McCoy, p. 619 • Rule: Receiving means acquiring possession, control or title, or lending on the security of the property. • Rule: Constructive possession = intentionally obtaining a measure of control or dominion over the stolen goods although they are under the physical control of another. MPC defines “receiving,” as excluding constructive possession doctrine and as “acquiring possession, control or title” or “lending on security” or “retaining” after you find out about stolen status. • MPC (majority): Prosecution must prove that the property “probably” is stolen. • MPC also eliminates the “stolen” element in favor of sting operations. Some states keep the element in order to make the prosecution first prove that they don’t own it before bringing possibly baseless charges against them. • You can, of course, always charge with attempt when the goods aren’t actually stolen. Robbery and Carjacking Robbery is taking by means of violence. Common Law Robbery = Common Law Larceny plus the elements of (1) taking property from the person or presence of the victim; (2) by means of force or by putting the victim in fear of violence. Carjacking is a legislatively created crime that is identical, but applies to cars and has a higher penalty. Its not clear whether it is specialized robbery or its own unique crime. United States v. Lake, p. 624 • Carjacking deals with the particular danger of personal safety while people are in their cars The federal carjacking statute was originally general intent, but was changed to specific by inclusion of the element of “intent (can be conditional) to cause death or serious bodily harm.” Some state statutes have been construed as general intent statutes that are easier to prove than regular robberies. Most states agree with the MPC that the element of “person or presence of the victim” should be eliminated from the crime of robbery. Most states do not follow the MPC proposal that serious bodily injury or a threat of serious bodily injury should be required for robbery. Instead, most states just go with bodily injury.

Many states do accept the view that the asportation requirement originally derived from larceny should be abandoned for robbery, so that it is irrelevant whether the defendant obtains any property during a robbery. Many states expand robbery to conduct “in the course of theft” and thereby turn attempted robbery into regular robbery. MPC Robbery In the course of a theft, guy 1. inflicts serious bodily injury upon another; or 2. threatens another with or purposely puts him in fear of immediate serious bodily injury; or 3. commits or threatens immediately to commit any felony of the first or second degree An act shall be deemed “in the course of committing a theft” if it occurs in an attempt to commit theft or in flight after the attempt or commission. Robbery is second degree unless you attempt a kill or purposeful infliction of serious bodily injury. Robbery is not a consolidated crime. Reasons for Prosecutorial Discretion: 1. Focus on community hot issues 2. Economics 3. Allowing them to “do justice” 4. Try provable cases Burglary Common Law: Burglary is attempted nighttime B&E with purpose of doing a crime inside. Modern statutes usually have daytime provisions for occupied structures or vehicles. Often, there’s also a degree system for “possession of a deadly weapon” or “attempt to inflict bodily injury.” In the Matter of T.J.E., p. 630 • This 11 year old girl eats a piece of candy. Manager catches outside store. Girl admits it aunt offers to pay for it, but manager calls police. • This little girl almost certainly didn’t form her intent until she was inside the building MPC Burglary 1. Enters 2. Occupied structure or occupied separate portion thereof 3. with purpose to commit a crime therein UNLESS  open to public OR  licensed or privileged to enter 4. Abandonment is an affirmative defense Grading 1. 2nd Degree felony = nighttime dwelling of another OR recklessly attempts infliction of bodily injury 2. Otherwise, 3rd degree Occupied Structure: any structure, vehicle, or place adapted for overnight accommodation or business whether or not person actually present MPC Criminal Trespass 1. knowing no privilege 2. enters or surreptitiously remains 3. occupied structure or building 4. Ordinarily = petty misdemeanor; at nighttime = misdemeanor

Defenses 1. Abandonment 2. open to the public and complied with lawful conditions 3. reasonably believed that owner or licensor would have allowed it 4/23/2011 We will get a list of TX and MPC sections and topics. If you cite a rule, then specify common law, MPC, or TPC on the short answer.