Criminal Law Outline II
Content
Criminal Law Outline
Theories of crime.
1. There are 5 recognized principles of punishment. First 4 are utilitarian principles of trying to make the world a better place. a. General Deterrence; Punish a particular D to deter others from committing crimes. b. Specific Deterrence; punish this D to discourage him from committing crimes later. c. Incapacitation; locking someone up to physically prevent them from committing additional crimes. d. Rehabilitation; Treat the D, teach him so that he won’t commit a crime in the future. e. Retributive theory; we punish them because they deserve it. i. The way that we determine what they deserve 1. Harm; what did they do. 2. Culpability; a. Here think about if the D made a bad decision was it done on purpose or not? Every doctrine can be viewed with how well do they promote these aspects.
Sources of Criminal Law
1. Common Law Crimes: Created by the judiciary in the absence of a statute defining the offense. a. No federal common law crimes; statutes govern Fed criminal law strictly. b. Majority View – Common law crimes retained; Majority of sates retain common law crimes either implicitly or by express “Retention Statute.” c. Minority view (modern trend) – common law crimes abolished; Minority of states have abolished common law, either by statute or impliedly by the enactment of comprehensive criminal codes. These states nevertheless retain the various common law defenses such as insanity and self-defense. 2. Statutory Crimes; State legislative statutes are the primary source of criminal law. Many either having adopted, or are currently drafting comprehensive criminal codes. 3. Constitutional crimes; Levying war against the US, adhering to enemies of the US or giving them aid or comfort, are all crimes under the constitution. Cannot be convicted unless two witnesses to same overt act, or confesses. 4. Administrative Crimes; legislature may delegate to an administrative agency power to prescribe rules. 5. The Model Penal Code (MPC); Although not a source of law, the MPC was a scholarly endeavor to compile a comprehensive and coherent body of criminal law. Since it’s publication in 1962, the MPC has influenced the
drafting of state criminal statutes. Due to its enlightened position on many different issues, the MPC may be the single most important source of general criminal law.
Classification of Crimes; At common law all crimes were divided into
three classes: Treason, felonies, and misdemeanors. 1. Felonies and Misdemeanors; Most states now classify as felonies all crimes punishable by death or imprisonment exceeding one year. a. Misdemeanors; crimes punishable by imprisonment for less than one year or by a fine only. b. Felonies at common law; only felonies at common law were murder, manslaughter, rape, sodomy, mayhem, robbery, larceny, arson and burglary. All others were considered misdemeanors.
Principle of Legality – Void for Vagueness Doctrine; Due
process clause in Constitution in 5th and 14th amendments has been interpreted by the Supreme Court to require no criminal penalty without fair notice that conduct is forbidden. Fair Warning; Statute must give a person of ordinary intelligence fair notice that his contemplated conduct is forbidden by the statute. Arbitrary and Discriminatory Enforcement must be avoided; Statute must not encourage arbitrary and erratic arrests and convictions. o
Constitutional Limitations on Crime creation; Article I of the
constitution places 2 substantive limitations on both federal and state legislatures; 1. No ex post facto laws; Supreme Court has defined an ex post facto law as one that retroactively; a. Makes criminal an act that when done was not criminal. b. Aggravates a crime or increases the punishment thereof c. Changes the rules of evidence to the detriment of criminal D as a class; or, d. Alters the law of criminal procedure to deprive criminal D of a substantive right. 2. No bills of Attainder; this is a legislative act that inflicts punishment or denies a privilege without a judicial trial.
Interpretations of Criminal Statutes
1. Plain Meaning Rule; When statutory meaning is plain and its meaning clear, the court must give effect to it even if the court feels that the law is unwise or undesirable.
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a. Exception; If the court believes that applying the plain meaning of a statute will lead to injustice, oppression, or an absurd consequence Ambiguous Statutes Strictly Construed in Favor of D; Rule of lenity requires that an ambiguous criminal statute must be strictly construed in favor of the D. Ambiguity is different than Vagueness. Ambiguous is one susceptible to two or more equally reasonable interpretations. Vague is so unclear as to be susceptible to no reasonable interpretation. Expressio Unius, Exclusio Alterius; The expression of one thing impliedly indicates an intention to exclude another. Specific Controls the General, the More Recent Controls the Earlier; More specific statute will be applied rather than the more general if they deal with the same subject. Likewise a more recent statute will be applied over an older statute dealing with the same subject. Effect of Repeal; At common law, the repeal or invalidation of a statute operates to bar prosecutions for earlier violations. However does not set free someone who has been prosecuted and convicted. a. Saving Provision; many new codes include a provision that crimes committed prior to the effective date of the new code are subject to prosecution and punishment under the law as it existed at the time the offense was committed.
Merger: When can a D be convicted of multiple crimes for the same act.
1. Two contexts. a. Lesser-included offense; is a crime that necessarily includes all the elements of a greater crime. i. Larceny is a lesser-included crime of robbery. ii. A lesser-included offense will merge with the greater offense. iii. Exam: note the merger, but discuss both offenses together. b. Inchoate offenses. i. Solicitation and attempt, merge with each other and merge with completed offense. ii. Conspiracy does not merge.
Essential elements of crimes.
1. Physical Act requirement – Actus Reus a. There is a basic rule; without an act you can’t have a crime. i. We don’t punish thought crimes. b. What is an act? i. Def= a voluntary bodily movement. ii. 3 types of movements that are not considered voluntary acts. 1. Movement is not the product of the actor’s volition. a. Someone else moves you. 2. Sleep Walking; or other unconscious movements.
3. Reflexes or convulsions a. Careful, a seizure is not a voluntary act but driving a care knowing you have seizures, and not taking your medication, that is a criminal act. c. Omissions rule; i. For an omission to be a crime you need three things. 1. A legal duty to act; Generally we don’t have an obligation to act, except where the law imposes a legal duty to act. There are 5 of them. a. Statutory duties; created by statute. i. Some states might have a Good Samaritan statute. ii. Common duty is that of filing a tax return. iii. Other common one is duty on some professionals to report child abuse. b. Duty imposed by contract. i. Babysitter ii. Lifeguard iii. Doctor iv. All have duty because there is an explicit or implicit agreement. c. Duty created by status relationship. i. Either duty of one spouse to help the other spouse. ii. Duty of parent to help a child. (only two) d. Voluntary assumption of care. i. If you start helping, you may have an obligation to continue. ii. Rationale is if you start and then start you could leave them in a worse situation. e. Duty created by creation of the peril. i. If the problem is my fault, I may have a duty to help. 2. Knowledge of the facts giving rise to the duty. a. If your child is drowning but you don’t know it’s your child then no duty. 3. You need the ability to help. (Reasonably possible to perform) a. Careful here: not always the most obvious way to help, just any way to help. d. Possession as an “Act”; Criminal statutes criminalize the possession of contraband generally require only that the D have control of the item for a long enough period to have an opportunity to terminate the possession.
i. Need not be exclusive possession; Can also be constructive, meaning that it is located in an area within the D “dominion and control” ii. State of Mind Requirement; Absent a state of mind requirement in the statute, the D must be aware of his possession of the contraband, but need not be aware of its illegality or true nature. 1. Many statutes and MPC; both add “knowingly” and “intentionally” state of mind element to possession crimes. As such the D must know the nature of the possessed item. a. D may not consciously avoid learning the nature; knowledge or intent may be inferred from a combination of suspicion and indifference to the truth. 2. Mental State Requirement – Mens Rea; Most important part of exam probably. a. Common law mental states. i. Specific intent; Crime requires not just desire to do the act, but the desire to achieve a specific result. 1. Specific intent crimes, most likely to be tested on. a. Assault b. First degree premeditated murder c. Embezzlement; intent to Defraud d. False pretenses; Intent to defraud e. Larceny; Intent to steal another’s personal property. f. Robbery; Intent to commit a robbery from a person by force. g. Forgery; Intent to Defraud h. Burglary; Intent at the time of entry to commit a felony in the dwelling of another. i. 1st Degree murder; premeditated intent to kill. (where defined by statute) j. Solicitation; Intent to have the person solicited commit a crime. k. Conspiracy; Intent to have the crime completed. l. Attempt; Intent to complete the crime. ii. Malice; when a defendant acts intentionally, or with reckless disregard of an obvious or known risk. a. Most famous types. i. Murder ii. Arson b. These crimes are not open to Specific intent Defenses.
iii. General Intent; Defendant need only be generally aware of the factors constituting the crime. Need not intend a specific result. a. Usually inferred just form the doing of the act. i. Battery ii. Forcible Rape iii. Kidnapping iv. False imprisonment b. Transferred intent; If D intended a harmful result to a particular person or object and, in trying o carry out the intent, caused a similar harmful result to another person or object, their intent will be transferred from the intended person or object to the one actually harmed. i. Defenses; any defense that the actor could have used against the asserted victim. 1. Transferred Intent does not apply to Attempt. c. Motive Distinguished; Motive is distinct from the intent to commit a crime. i. Motive is generally immaterial to Crim Law. iv. Strict Liability; No intent crimes. Only matters that the act was engaged in. 1. Come in two different types; a. Public welfare offenses; i. Morality related, ii. Or regulatory related with small penalty. b. Statutory Rape i. Only strict liability crime with a severe penalty. 2. Generally held as constitutional; a. Exception is the case in CA with the strict liability crime of not registering as a felon. v. Common law mental states, and Mistake 1. Rules about mistake are rules to help you apply common law mentalities a. Mistake of fact; (Mistake must negate the state of mind.) i. Defense depending on the mental state of the crime and on whether the mistake was reasonable or unreasonable. 1. Specific intent; Any mistake will be a defense.
2. General Intent and Malice; Only a reasonable mistake can be a defense. 3. Strict Liability; No mistake will ever be a defense. ii. Another way to look at it. 1. Reasonable mistake is a defense to any crime other than Strict Liability. 2. Unreasonable mistake is only a D to Specific Intent. b. Mistake of Law i. Is not a Defense!!! 1. Exception: When the statute specifically makes knowledge of the law an element of the crime, then mistake of a law would be a defense. a. Very few crimes that do this. 2. Statute not reasonably available: if it was never published or made available another way. 3. Reasonable reliance on Statute or Judicial decision that is later declared unconstitutional or overruled. 4. Reasonable reliance on official interpretation or advice; a. Common Law; No Defense b. MPC: Defense when the statement came from one “charged by law with responsibility for the interpretation, administration, or enforcement of the law.” b. Model Penal Code Mental States; (4 types of mental states defined by MPC) i. Purposely (Intentionally): D’s “conscious object” to cause an effect. ii. Knowingly: D is aware of his conduct, has knowledge. 1. Also satisfies mental state of a statute that requires Willful Conduct.
iii. Recklessly: “When the D is aware of and consciously disregards a substantial or unjustifiable risk.“ 1. Involves Objective “unjustifiable risk” element, and 2. Subjective “awareness” element a. Must constitute a “gross deviation from the standard of care that a reasonable person would exercise. b. Act performed recklessly is also performed wantonly. iv. Negligently: ”When the D SHOULD have known about (failed to be aware of) a substantial and unjustifiable risk.” 1. Constitutes a substantial deviation from the standard of care that a reasonable person would exercise. a. Objective standard as to if the D had taken a very unreasonable risk in light of the usefulness of his conduct, their knowledge of the facts, and the nature and extent of the harm that may be caused. 2. Violation of a statute or ordinance as evidence of negligence. a. Violation of a statute or ordinance may be evidence of liability. v. Mistake under MPC 1. Ask does D mistake negate the mental state. a. Purposely: Did he mean to do it. b. Knowingly: Did he know what he was doing. c. Recklessly: Was he aware of the risk. d. Negligently: Was the risk unreasonable. 2. Mistake of Law is not a D. c. Analysis of Statutes using Fault Standards i. State of mind applies to all material elements of Offense; 1. If a Statute does not indicate if the Mens Rea requirement applies to all elements of the offense, then the specified state of mind applies to all material elements of the offense, unless a contrary purpose appears in the statute. ii. General state of mind requirement – recklessness; If the statute does not include a state of mind requirement, the D must have acted with at least recklessness with regard to each material element of the offense. 1. Under MPC a higher state of mind automatically satisfies a lower mental state requirement of a statute. 2. Because a standard of recklessness is assumed where the state of mind is not mentioned, if a lower standard of negligence will satisfy liability, or if a higher standard
of knowledge or purpose is required, those standards must be indicated in the language of the statute. d. Vicarious Liability Offenses; Cases that dispense of the Actus reas requirement, but retain the Mens Rea element. i. Limitation on Punishment; General trend is to limit vicarious liability to regulatory crimes and to limit punishment to fines. ii. Implying Vicarious Liability from underlying strict liability offense; Mere fact that the underlying offense is clearly a strict liability offense should not imply a legislative intent to impose vicarious liability. 3. Harmful Result and Causation Requirement; These questions tend to be very fact specific. i. 2 types and you need both 1. Actual Causation; D is an actual cause if the result would not have happened “but for” the D conduct. a. If not for the D would this have happened? i. Yes- Then actual cause. ii. No- then actual cause. b. Note: accelerating the death is still a “but for” cause. i. Person stabbed and bleeding to death, another person comes along and shoots him still actual cause. c. Common Law – “Year and a Day” rule 2. Proximate Cause: If the bad result is a natural and probable consequence of the D conduct. a. In order to determine need. i. Foreseeable ii. Fairness b. Defendants are generally not responsible for unforeseeable intervening events. i. Careful with doctors, because a degree of medical malpractice is foreseeable usually. c. Eggshell victims are foreseeable. i. Take the victim as you find them. 4. Concurrence: D must have the mental state at the time he engages in the act. a. Usually comes up in the context of larceny and burglary. b. To resolve these issues, usually only need to compare carefully the acts and the mental state. i. Consider the mental state at the time that he did each act separately.
Specific Crimes ( the way to answer criminal law questions is simple; identify
the crime, list the elements of the crime, apply the facts to those elements.) Assault and Battery; 1. at Common law. a. Battery; unlawful application of force to another resulting in either bodily injury or an offensive touching. i. Mental state is General Intent (criminal negligence suffices). ii. Indirect application of force is sufficient. b. Assault; an attempted Battery or the intentional creation other than by mere words, of a reasonable fear of imminent bodily harm. i. Mental state is Specific Intent. ii. Must be the intentional creation of a reasonable apprehension in the mind of the victim of imminent bodily harm. c. In many states these crimes have been combined into just assault. d. Some things can turn and assault and battery into an aggravated battery. ( or an aggravated assault.) i. Presence of a weapon. ii. Seriously bodily injury iii. Victim is a child. (or peculiar vulnerability.) iv. If the intent is to commit a robbery or a rape. Homicide; Common Law; (Year and a day rule; death must occur within a year and a day of the homicidal act. No longer the rule neither in most states nor in the MPC but it is the old common law rule.) 1. Murder; Causing the death of another person with Malice aforethought (Key is the Malice aforethought. Really a question about mental states. ) i. It is a term of art that means 4 things under common law. 1. Intent to kill; Test is going to look at what mental state. The question might tell you the D mental state. a. Otherwise there is two ways to determine the D mental state i. Look at the conduct; if there are obvious actions leading towards the intent to kill. 1. Actions that aren’t too obvious then argue it both ways, if intentional then it is murder, otherwise it is this other crime and argue that. 2. Or by putting words in the victims mouth. b. Also need to discuss transferred intent.
i. Take the intent that existed or the planned victim and transfer it to the victim that was actually harmed. 1. Can come up in almost any crime, but usually murder. ii. Exception; you don’t transfer the intent unless the actual harm occurred (so it doesn’t work for intent. ) 2. Intent to inflict great bodily harm. 3. Extreme recklessness. a. Depraved Heart murder. 4. Felony Murder a. There is a statutory exception under murder that created 1st degree murder. i. Difference between 1st degree and regular murder, is that 1st degree is meditated and deliberate. 1. Even though created by statute we still discuss it with common law murder. ii. How much planning? That is an issue for the jury. Be prepared to argue both ways. 2. Statutory Modification of Common Law Classification; i. To be changed form 2nd degree to 1st degree the murder must be proven to be part of; 1. Deliberate and Premeditated Killing; 2. First Degree felony murder (see MPC for specifics) Manslaughter 1. Voluntary manslaughter: intentional killing committed in the heat of passion after adequate provocation. i. What types of provocations are adequate. 1. Must be provocation that would arouse a sudden and intense passion in the mind of an ordinary person, and the person must not have had time to cool off. 2. Common provocations a. Assault and Battery b. Discovering spouse in adultery i. In some states words alone can never be provocation. 2. Involuntary manslaughter i. Killing committed with criminal negligence ii. Or, Killing committed during a crime that is not felony murder. Commonly called misdemeanor murder
Felony Murder; Any killing committed during the commission of or attempt to commit a felony. a. Felony? i. If a crime is punishable by more than one year in jail, it I a felony. b. Six limitations on felony murder. i. D must be guilty of the underlying felony. ii. Felony must be inherently dangerous. iii. Felony must be separate from the killing itself. 1. Aggravated Battery cannot be the basis for felony murder. 2. Must be an independent felonious purpose. iv. Killing must be during the felony, or during immediate flight. v. Death must be foreseeable 1. By definition in felony murder you are talking about accident death, and question is whether it is foreseeable. vi. Victim must not be a co-felon 1. Some states do allow this most states do not. MPC Homicide; 1. MPC Murder a. Intent to Kill b. Extreme Recklessness c. Felony Murder i. Similar to common law except not obviously dangerous, instead limited to a list 1. Burglary 2. Robbery 3. Arson 4. Kidnapping 5. Escape 6. Sexual Assault Manslaughter Intentional; Intentional killing committed under influence of a reasonable extreme emotional disturbance. Reckless Killing; Killing where the defendant is aware of and consciously disregards a substantial and unjustifiable risk of death. o If D is only negligent then the third offense under MPC. Criminally negligent homicide. o D should have known about a substantial and unjustifiable risk. Notice that there are no degrees under MPC.
Sex offenses 1. Forcible Rape; sex without the victims consent, accomplished by force, or by threat of force, or when the victim is unconscious. (At common law, was a general intent crime) a. Penetration Sufficient; Rape requires only penetration of female sex organ by the male sex organ. Emission is not required. b. Absence of Marital Relationship; at common law, and under the MPC the woman must not have been married to the man who committed the act. Today though most states have either dropped this requirement where the parties are estranged or separated or abolished entirely. c. Lack of Effective Consent; Consent even if given may be ineffective in several situations. i. Intercourse accomplished by force 1. Main element is on force. 2. Question is how much force is enough? a. Tons of thoughts on this. It may be a policy argument for the exam. ii. Intercourse Accomplished by threats; if accomplished by placing the victim in fear of great and immediate bodily harm, it constitutes rape. (failure to “resist to the utmost” does not prevent the intercourse from being rape if resistance is prevented by such threats. ) iii. Woman incapable of Consenting; Inability may be caused by unconsciousness, by effect of drugs or intoxicating substances, or by the victim’s mental condition. d. Consent Obtained by Fraud; In limited circumstances intercourse with consent obtained by fraud constitutes rape. i. Fraud as to whether act constitutes sexual intercourse; If the victim is fraudulently lead to believe that the act is not sexual intercourse, the act constitutes rape. ii. Fraud as to whether the D is Victim’s Husband; Generally speaking it doesn’t constitute rape. iii. Other fraud; Generally will not make intercourse rape. 2. Statutory Rape; sex with a person under the age of consent. Even if the female willingly participated, consent is irrelevant. Age of consent varies from state to state, generally from 16 to 18. a. Strict Liability doesn’t matter what was intended, or the level of mistake. 3. MPC has different approach for 11-14, a reasonable mistake will be a defense (This is a minority rule most states don’t follow it) If you run into a crime you don’t know the professor is either testing you on something else, not the crime, or else they are going to give you the statute and test you on your ability to interpret statutes.
Inchoate Offenses Attempt; has an act requirement and a mentality requirement
1. Act requirement; Must have committed an act beyond mere preparation a. (Common law); conduct that gets dangerously close to the commitment of the crime. i. Traditionally there is a proximity test 1. Need the means and intent and the person/object in the same place at the same time. b. Act requirement (MPC); Conduct that is a substantial step towards the commission of the crime and strongly corroborative of a criminal purpose (MPC) 2. Mental State requirement; is a specific intent crime under Common law. (Since it has to be the specific intent to complete the crime.) a. You cannot attempt accidental (Negligent) crimes. i. NO attempt versions of reckless, or negligent crimes, or felony murder. 3. Doctrine of impossibility; D is saying I can’t be guilty of attempt because it was impossible to commit the crime a. Factual impossibility; It was impossible to commit the crime due to a circumstance beyond the D control. i. Not a defense to attempt b. Legal impossibility; Impossible to complete the crime because what the D was trying to do is not illegal. (D thinks it’s a crime but it isn’t) i. Is a defense to attempt, 1. But it almost never happens. 4. Withdrawal; under common law, abandonment/withdrawal is not a defense. a. Withdrawal, MPC, works only if they withdraw voluntarily and complete renounces the crime. i. Has to be motivated by a change of heart and not a fear of getting caught. Generally hard for the D to prove. ii. Has to be a complete abandonment, not just postponement, or decision to find another victim. 5. Prosecution for Attempt; A person convicted of the crime cannot be convicted of attempt as well. 6. Punishment for attempt; most states punish attempt less severely than the crime attempted. a. Commonly up to one-half the maximum penalty for the completed crime, with specific settings for crimes punishable by death or life imprisonment b. MPC: attempt may be punished to the same extent as the crime, except for capital crimes and the most serious felonies.
Defenses; apply to all crimes.
1. Capacity Defenses a. Insanity; Defendant must suffer from a mental disease or defect. i. Several Tests. 1. Common law, M’Naghten test; did D know his act is wrong, or did he understand the nature of his act. If not then not guilty. a. Elements i. Disease of the mind ii. Caused a defect of reason iii. Such that the D lacked the ability at the time of his actions to either; 1. Know the wrongfulness of his actions; or 2. Understand the nature and quality of his actions. b. Application i. D with Delusions; if delusions (False beliefs), it is necessary to determine whether his actions would have been criminal if the facts had been as he believed them to be. ii. Belief that Acts are Morally Right; D is not entitled to an acquittal merely because he believes his acts are morally right, unless he has lost capacity to recognize that they are regarded by society as wrong. iii. Inability to control oneself; traditionally it is irrelevant that the D may have been unable to control himself and avoid committing the crime. Loss of control because of mental illness is no Defense. c. Evidence Admissible; in practice this test does not restrict any evidence that shows the mental condition of the D. 2. Irresistible impulse test; was D unable to control his actions, or unable to conform his conduct to the law. a. The inability need not come upon the D suddenly. b. Some jurisdictions apply this and M’Naghten test, meeting either would provide an acquittal. 3. Durham/New Hampshire/Product test; was the crime the product of the D mental illness. (No longer used in any American jurisdiction)
Traditionally this was an application of a “but for” test in regards to the mental illness. 4. MPC / American Law Institute (ALI) test; If the D shows that he suffers from a mental disease or defect and as a result lacked the substantial capacity to either a. Appreciate the criminality of his conduct, or b. Conform his conduct to law. ii. Application is difficult since it is really a psychological question more than anything else. iii. Distinguish from incompetence. 1. For insanity issue is if the person was insane at the time of the act. 2. Incompetency asks whether the person is insane at the time of trial. a. Deemed incompetent if he is unable: i. To understand the nature of the proceedings being brought against him; or ii. To assist his lawyer in the preparation of his defense. iv. Diminished Capacity; Some states recognize defense of “diminished capacity,” under which the D may assert that as a result of a mental defect short of insanity, he did not have the particular mental state (Purposely, knowledge, recklessness or negligence) required for the crime charged. Most states recognizing this defense limit it to specific intent crimes. (Not held in most states) b. Intoxication;(Didn’t Study This) May be caused by any substance. Alcohol, drugs and medicine are the most frequent. i. Involuntary intoxication; is a defense to any crime. 1. Qualifies only if the results from taking the substance are; a. Without knowledge of its nature b. Under direct duress c. Pursuant o medical advice while unaware of the substance’s intoxicating effect. 2. May be treated as mental illness in which case court can apply a mental illness test. ii. Voluntary intoxication; 1. Common law says that it can be a defense to specific intent crimes, if the intoxication negates the intent. 2. Not a defense to Crimes requiring Malice or recklessness 3. Defense to first-degree murder, but not second degree murder.
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a. Reduces 1st degree to second, but doesn’t reduce 2nd to manslaughter. Common law “depraved heart murder’s” fall into this category of 2nd degree murder. Cannot negate the recklessness required for depraved heart murder. c. Infancy (Didn’t Study this); to young to be prosecuted. i. Common law historically; under age of 7 cannot be prosecuted. 1. 14 may not be trialed depending on crime. 14 and above is fine. 2. Modern question is if they are prosecuted as adult or child. ii. MPC; under 16 go to family court, 1. 16-17, family court determines if you are tried as adult or child. 2. 18 and above, prosecuted as an adult by default. 2. Justification; Self-defense. a. Distinguish between deadly force and non-deadly force. i. Guns and knives are deadly force (usually) ii. Bare hands are not deadly force (usually) b. Rules for non-deadly force in self-defense. i. Ok if it is reasonably necessary to protect against an imminent use of unlawful force against oneself. ii. No need to retreat before using non-deadly force. c. Rules for use of deadly force. i. Ok if D is facing an imminent threat of death or serious bodily injury. (Must reasonably believe that they are faced with the imminent threat) ii. Additional restrictions on deadly force 1. Aggressor rule; may not use deadly force if they are the original aggressor except if the aggressor withdraws from the confrontation and effectively communicates that to the victim, or if the victim suddenly escalates a non-deadly fight into a deadly fight. 2. Retreat rule; in some states the D is required to retreat before using deadly force in self-defense. a. Retreat to the wall rule. b. Not required to retreat if i. You cannot retreat in complete safety. ii. If you are in your own home. (Castle acceptation) iii. If you are defending against a kidnapping, rape, robbery or larceny. d. MPC rule is that retreat is not required, also known as modern American rule, or the true man rule. e. Reasonable mistake can still allow the D to make a claim of selfdefense.
i. Under common law, if there is an unreasonable mistake there is no self-defense. ii. Under MPC if the D kills under an unreasonable mistake they are guilty of manslaughter, known as imperfect self-defense. f. Use of force to prevent a crime; i. Can use non-deadly force to prevent any crime (within reason, although CA really is any). ii. Deadly force can be used only to prevent a felony that risks human life. “Dangerous Felony” g. Defense of others. i. Can use force to defend others just as you can to defend yourself. 1. Need not have relationship with the person aided. 2. Have to reasonably believe that the person needs aid based on the reasonable appearance of the right to use force. h. Defense of property. i. Non-deadly force; A person may use non-deadly force in defense of their dwelling when, it is reasonable to believe it necessary to prevent or terminate another’s unlawful entry into or attack upon their dwelling. ii. Deadly force may not be used to defend property. 1. Exception is Burglary. a. If you are inside the house. 3. Necessity; Self-defense, but not in terms of force against others, (meaning self defense that allows committing a crime. ) a. Choice of evils in other contexts. i. Committing a crime is less than the other crime. 1. At common law it cannot be a defense of murder. b. MPC allows it to be a D to murder. c. Duress of necessity involves a human threat, necessity involves pressure from physical or natural forces. 4. Duress; a. Defense if the D was forced to commit a crime if the D was under the threat of imminent death or serious bodily injury. i. Like necessity, at common law duress could not be a D to murder. b. MPC allows D to murder. 5. Entrapment (Didn’t Study This); a. If the Gov unfairly tempted the crime to happen. i. Must show. 1. It was the governments mind to offer the crime. a. D wasn’t looking for it. 2. That the D was not predisposed to committing the crime. a. Quite difficult.
6. Consent (Barely Discussed this); Generally not a D a. Can be a defense if it negates an element of the offense, consent is a complete defense. b. For consent to be a defense it must show that; i. Consent was voluntarily and freely given ii. Party was legally capable of consenting; and iii. No fraud was involved in obtaining the consent. 7. Forgiveness by the injured party after the crime is no defense. 8. Illegal conduct by the victim is not a defense.
Don’t underestimate how important it is to know the doctrine. When you are answering a question approach it mechanically and simplistically Identify the Offense Lay out the Elements Discuss each element with regards to the facts of the question. Remember all facts are there for a reason. Crimes against property 1. Larceny; trespasser taking and carrying away of the personal property of another, with e intent to steal. a. Specific intent crime i. Taking under a claim of right is never larceny. ii. Unreasonable mistake is a defense. 2. Embezzlement; Conversion of the personal property of another by a personal already in possession of the property, with the intent to defraud, a. Specific intent crime. 3. False pretenses; obtaining title to the property of another by an intentional false statement with the intent to defraud. a. Key difference is title. b. Most states have a consolidated theft laws, called either Larceny, or Theft or something of the like. 4. Robbery; a Larceny from another’s person or presence by force, or threat of immediate injury. a. Mental state is the intent to steal. b. How much force is required. i. Enough force to overcome resistance. c. Threat must be of immediate injury. d. If threat is of future injury it is called extortion. e. If threat is of embarrassment it is called blackmail. 5. Burglary; Breaking and entering the dwelling of another, at night, with the intent to commit a felony inside. a. It is specific intent. b. Most states have expanded to all buildings
c. Most modern states don’t restrict to nights 6. Arson; Malicious burning of a building a. State of mind is Malice. b. Used to be limited to dwellings, now extended to buildings other than dwellings. i. Used to not extend to your own dwelling now it does. Inchoate offenses and accomplices liability a. Accomplice liability is based on the concept that you can be responsible for what someone else does. 1. Person committing the crime is called principle. 2. Person helping is called an accomplice. a. Act is aiding or encouraging the principle. b. Mental state is; with the intent that the crime be committed. 3. Accomplishing is not a crime, but the accomplice is guilty of the principle crime as though they had done it, not only that but the accomplice is guilty of all other crimes that were foreseeable that the principle would do. 4. Accomplice’s guilt doesn’t depend on the principles guilt. a. Can be guilty even if other person has defense. ii. 3 defenses to accomplices. 1. Merely being present doesn’t make you an accomplish unless you help. 2. Mere knowledge does not make you an accomplice. a. Although if you know too much you could be an accessory. 3. Members of the protected class cannot be an accomplices, a. Victim of the intended crime is not an accomplice. iii. Withdrawal of being an accomplice, depends on what you did. 1. If you encouraged then all you have to do is discourage the principle. 2. If you aided, then you have to take affirmative steps to negate your assistance. iv. Accessory, knows the crime happened and you help them after the crime, with knowledge that it has been committed with the intent to help them avoid being arrested, or convicted. 1. Most modern jurisdictions this has different names, such as obstruction of justice etc. b. Inchoate offenses, Incomplete i. Solicitation; asking someone to commit a crime with the intent that they do it. 1. Specific intent crime. 2. Completion is not necessary.
a. Doesn’t matter if the person says yes, asking is the crime ii. Conspiracy; agreement between two or more people to commit a crime, plus an overt act in furtherance of that crime. 1. Specific intent crime; must intend it to happen. a. Crime is in the agreement plus an overt act, you don’t have to succeed. b. Overt act can be as simple as driving by a bank after agreeing to do the crime. 2. At common law you could not have a one-person conspiracy. a. MPC follows the unilateral rule, can have a conspiracy, even if only one of the people has the intent to go through with the crime. 3. Vicarious liability; if you are a member of a conspiracy you are guilty not only of conspiracy but of all crimes committed by your co-conspirators.
Theories of crime.
1. There are 5 recognized principles of punishment. First 4 are utilitarian principles of trying to make the world a better place. a. General Deterrence; Punish a particular D to deter others from committing crimes. b. Specific Deterrence; punish this D to discourage him from committing crimes later. c. Incapacitation; locking someone up to physically prevent them from committing additional crimes. d. Rehabilitation; Treat the D, teach him so that he won’t commit a crime in the future. e. Retributive theory; we punish them because they deserve it. i. The way that we determine what they deserve 1. Harm; what did they do. 2. Culpability; a. Here think about if the D made a bad decision was it done on purpose or not? Every doctrine can be viewed with how well do they promote these aspects.
Sources of Criminal Law
1. Common Law Crimes: Created by the judiciary in the absence of a statute defining the offense. a. No federal common law crimes; statutes govern Fed criminal law strictly. b. Majority View – Common law crimes retained; Majority of sates retain common law crimes either implicitly or by express “Retention Statute.” c. Minority view (modern trend) – common law crimes abolished; Minority of states have abolished common law, either by statute or impliedly by the enactment of comprehensive criminal codes. These states nevertheless retain the various common law defenses such as insanity and self-defense. 2. Statutory Crimes; State legislative statutes are the primary source of criminal law. Many either having adopted, or are currently drafting comprehensive criminal codes. 3. Constitutional crimes; Levying war against the US, adhering to enemies of the US or giving them aid or comfort, are all crimes under the constitution. Cannot be convicted unless two witnesses to same overt act, or confesses. 4. Administrative Crimes; legislature may delegate to an administrative agency power to prescribe rules. 5. The Model Penal Code (MPC); Although not a source of law, the MPC was a scholarly endeavor to compile a comprehensive and coherent body of criminal law. Since it’s publication in 1962, the MPC has influenced the
drafting of state criminal statutes. Due to its enlightened position on many different issues, the MPC may be the single most important source of general criminal law.
Classification of Crimes; At common law all crimes were divided into
three classes: Treason, felonies, and misdemeanors. 1. Felonies and Misdemeanors; Most states now classify as felonies all crimes punishable by death or imprisonment exceeding one year. a. Misdemeanors; crimes punishable by imprisonment for less than one year or by a fine only. b. Felonies at common law; only felonies at common law were murder, manslaughter, rape, sodomy, mayhem, robbery, larceny, arson and burglary. All others were considered misdemeanors.
Principle of Legality – Void for Vagueness Doctrine; Due
process clause in Constitution in 5th and 14th amendments has been interpreted by the Supreme Court to require no criminal penalty without fair notice that conduct is forbidden. Fair Warning; Statute must give a person of ordinary intelligence fair notice that his contemplated conduct is forbidden by the statute. Arbitrary and Discriminatory Enforcement must be avoided; Statute must not encourage arbitrary and erratic arrests and convictions. o
Constitutional Limitations on Crime creation; Article I of the
constitution places 2 substantive limitations on both federal and state legislatures; 1. No ex post facto laws; Supreme Court has defined an ex post facto law as one that retroactively; a. Makes criminal an act that when done was not criminal. b. Aggravates a crime or increases the punishment thereof c. Changes the rules of evidence to the detriment of criminal D as a class; or, d. Alters the law of criminal procedure to deprive criminal D of a substantive right. 2. No bills of Attainder; this is a legislative act that inflicts punishment or denies a privilege without a judicial trial.
Interpretations of Criminal Statutes
1. Plain Meaning Rule; When statutory meaning is plain and its meaning clear, the court must give effect to it even if the court feels that the law is unwise or undesirable.
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a. Exception; If the court believes that applying the plain meaning of a statute will lead to injustice, oppression, or an absurd consequence Ambiguous Statutes Strictly Construed in Favor of D; Rule of lenity requires that an ambiguous criminal statute must be strictly construed in favor of the D. Ambiguity is different than Vagueness. Ambiguous is one susceptible to two or more equally reasonable interpretations. Vague is so unclear as to be susceptible to no reasonable interpretation. Expressio Unius, Exclusio Alterius; The expression of one thing impliedly indicates an intention to exclude another. Specific Controls the General, the More Recent Controls the Earlier; More specific statute will be applied rather than the more general if they deal with the same subject. Likewise a more recent statute will be applied over an older statute dealing with the same subject. Effect of Repeal; At common law, the repeal or invalidation of a statute operates to bar prosecutions for earlier violations. However does not set free someone who has been prosecuted and convicted. a. Saving Provision; many new codes include a provision that crimes committed prior to the effective date of the new code are subject to prosecution and punishment under the law as it existed at the time the offense was committed.
Merger: When can a D be convicted of multiple crimes for the same act.
1. Two contexts. a. Lesser-included offense; is a crime that necessarily includes all the elements of a greater crime. i. Larceny is a lesser-included crime of robbery. ii. A lesser-included offense will merge with the greater offense. iii. Exam: note the merger, but discuss both offenses together. b. Inchoate offenses. i. Solicitation and attempt, merge with each other and merge with completed offense. ii. Conspiracy does not merge.
Essential elements of crimes.
1. Physical Act requirement – Actus Reus a. There is a basic rule; without an act you can’t have a crime. i. We don’t punish thought crimes. b. What is an act? i. Def= a voluntary bodily movement. ii. 3 types of movements that are not considered voluntary acts. 1. Movement is not the product of the actor’s volition. a. Someone else moves you. 2. Sleep Walking; or other unconscious movements.
3. Reflexes or convulsions a. Careful, a seizure is not a voluntary act but driving a care knowing you have seizures, and not taking your medication, that is a criminal act. c. Omissions rule; i. For an omission to be a crime you need three things. 1. A legal duty to act; Generally we don’t have an obligation to act, except where the law imposes a legal duty to act. There are 5 of them. a. Statutory duties; created by statute. i. Some states might have a Good Samaritan statute. ii. Common duty is that of filing a tax return. iii. Other common one is duty on some professionals to report child abuse. b. Duty imposed by contract. i. Babysitter ii. Lifeguard iii. Doctor iv. All have duty because there is an explicit or implicit agreement. c. Duty created by status relationship. i. Either duty of one spouse to help the other spouse. ii. Duty of parent to help a child. (only two) d. Voluntary assumption of care. i. If you start helping, you may have an obligation to continue. ii. Rationale is if you start and then start you could leave them in a worse situation. e. Duty created by creation of the peril. i. If the problem is my fault, I may have a duty to help. 2. Knowledge of the facts giving rise to the duty. a. If your child is drowning but you don’t know it’s your child then no duty. 3. You need the ability to help. (Reasonably possible to perform) a. Careful here: not always the most obvious way to help, just any way to help. d. Possession as an “Act”; Criminal statutes criminalize the possession of contraband generally require only that the D have control of the item for a long enough period to have an opportunity to terminate the possession.
i. Need not be exclusive possession; Can also be constructive, meaning that it is located in an area within the D “dominion and control” ii. State of Mind Requirement; Absent a state of mind requirement in the statute, the D must be aware of his possession of the contraband, but need not be aware of its illegality or true nature. 1. Many statutes and MPC; both add “knowingly” and “intentionally” state of mind element to possession crimes. As such the D must know the nature of the possessed item. a. D may not consciously avoid learning the nature; knowledge or intent may be inferred from a combination of suspicion and indifference to the truth. 2. Mental State Requirement – Mens Rea; Most important part of exam probably. a. Common law mental states. i. Specific intent; Crime requires not just desire to do the act, but the desire to achieve a specific result. 1. Specific intent crimes, most likely to be tested on. a. Assault b. First degree premeditated murder c. Embezzlement; intent to Defraud d. False pretenses; Intent to defraud e. Larceny; Intent to steal another’s personal property. f. Robbery; Intent to commit a robbery from a person by force. g. Forgery; Intent to Defraud h. Burglary; Intent at the time of entry to commit a felony in the dwelling of another. i. 1st Degree murder; premeditated intent to kill. (where defined by statute) j. Solicitation; Intent to have the person solicited commit a crime. k. Conspiracy; Intent to have the crime completed. l. Attempt; Intent to complete the crime. ii. Malice; when a defendant acts intentionally, or with reckless disregard of an obvious or known risk. a. Most famous types. i. Murder ii. Arson b. These crimes are not open to Specific intent Defenses.
iii. General Intent; Defendant need only be generally aware of the factors constituting the crime. Need not intend a specific result. a. Usually inferred just form the doing of the act. i. Battery ii. Forcible Rape iii. Kidnapping iv. False imprisonment b. Transferred intent; If D intended a harmful result to a particular person or object and, in trying o carry out the intent, caused a similar harmful result to another person or object, their intent will be transferred from the intended person or object to the one actually harmed. i. Defenses; any defense that the actor could have used against the asserted victim. 1. Transferred Intent does not apply to Attempt. c. Motive Distinguished; Motive is distinct from the intent to commit a crime. i. Motive is generally immaterial to Crim Law. iv. Strict Liability; No intent crimes. Only matters that the act was engaged in. 1. Come in two different types; a. Public welfare offenses; i. Morality related, ii. Or regulatory related with small penalty. b. Statutory Rape i. Only strict liability crime with a severe penalty. 2. Generally held as constitutional; a. Exception is the case in CA with the strict liability crime of not registering as a felon. v. Common law mental states, and Mistake 1. Rules about mistake are rules to help you apply common law mentalities a. Mistake of fact; (Mistake must negate the state of mind.) i. Defense depending on the mental state of the crime and on whether the mistake was reasonable or unreasonable. 1. Specific intent; Any mistake will be a defense.
2. General Intent and Malice; Only a reasonable mistake can be a defense. 3. Strict Liability; No mistake will ever be a defense. ii. Another way to look at it. 1. Reasonable mistake is a defense to any crime other than Strict Liability. 2. Unreasonable mistake is only a D to Specific Intent. b. Mistake of Law i. Is not a Defense!!! 1. Exception: When the statute specifically makes knowledge of the law an element of the crime, then mistake of a law would be a defense. a. Very few crimes that do this. 2. Statute not reasonably available: if it was never published or made available another way. 3. Reasonable reliance on Statute or Judicial decision that is later declared unconstitutional or overruled. 4. Reasonable reliance on official interpretation or advice; a. Common Law; No Defense b. MPC: Defense when the statement came from one “charged by law with responsibility for the interpretation, administration, or enforcement of the law.” b. Model Penal Code Mental States; (4 types of mental states defined by MPC) i. Purposely (Intentionally): D’s “conscious object” to cause an effect. ii. Knowingly: D is aware of his conduct, has knowledge. 1. Also satisfies mental state of a statute that requires Willful Conduct.
iii. Recklessly: “When the D is aware of and consciously disregards a substantial or unjustifiable risk.“ 1. Involves Objective “unjustifiable risk” element, and 2. Subjective “awareness” element a. Must constitute a “gross deviation from the standard of care that a reasonable person would exercise. b. Act performed recklessly is also performed wantonly. iv. Negligently: ”When the D SHOULD have known about (failed to be aware of) a substantial and unjustifiable risk.” 1. Constitutes a substantial deviation from the standard of care that a reasonable person would exercise. a. Objective standard as to if the D had taken a very unreasonable risk in light of the usefulness of his conduct, their knowledge of the facts, and the nature and extent of the harm that may be caused. 2. Violation of a statute or ordinance as evidence of negligence. a. Violation of a statute or ordinance may be evidence of liability. v. Mistake under MPC 1. Ask does D mistake negate the mental state. a. Purposely: Did he mean to do it. b. Knowingly: Did he know what he was doing. c. Recklessly: Was he aware of the risk. d. Negligently: Was the risk unreasonable. 2. Mistake of Law is not a D. c. Analysis of Statutes using Fault Standards i. State of mind applies to all material elements of Offense; 1. If a Statute does not indicate if the Mens Rea requirement applies to all elements of the offense, then the specified state of mind applies to all material elements of the offense, unless a contrary purpose appears in the statute. ii. General state of mind requirement – recklessness; If the statute does not include a state of mind requirement, the D must have acted with at least recklessness with regard to each material element of the offense. 1. Under MPC a higher state of mind automatically satisfies a lower mental state requirement of a statute. 2. Because a standard of recklessness is assumed where the state of mind is not mentioned, if a lower standard of negligence will satisfy liability, or if a higher standard
of knowledge or purpose is required, those standards must be indicated in the language of the statute. d. Vicarious Liability Offenses; Cases that dispense of the Actus reas requirement, but retain the Mens Rea element. i. Limitation on Punishment; General trend is to limit vicarious liability to regulatory crimes and to limit punishment to fines. ii. Implying Vicarious Liability from underlying strict liability offense; Mere fact that the underlying offense is clearly a strict liability offense should not imply a legislative intent to impose vicarious liability. 3. Harmful Result and Causation Requirement; These questions tend to be very fact specific. i. 2 types and you need both 1. Actual Causation; D is an actual cause if the result would not have happened “but for” the D conduct. a. If not for the D would this have happened? i. Yes- Then actual cause. ii. No- then actual cause. b. Note: accelerating the death is still a “but for” cause. i. Person stabbed and bleeding to death, another person comes along and shoots him still actual cause. c. Common Law – “Year and a Day” rule 2. Proximate Cause: If the bad result is a natural and probable consequence of the D conduct. a. In order to determine need. i. Foreseeable ii. Fairness b. Defendants are generally not responsible for unforeseeable intervening events. i. Careful with doctors, because a degree of medical malpractice is foreseeable usually. c. Eggshell victims are foreseeable. i. Take the victim as you find them. 4. Concurrence: D must have the mental state at the time he engages in the act. a. Usually comes up in the context of larceny and burglary. b. To resolve these issues, usually only need to compare carefully the acts and the mental state. i. Consider the mental state at the time that he did each act separately.
Specific Crimes ( the way to answer criminal law questions is simple; identify
the crime, list the elements of the crime, apply the facts to those elements.) Assault and Battery; 1. at Common law. a. Battery; unlawful application of force to another resulting in either bodily injury or an offensive touching. i. Mental state is General Intent (criminal negligence suffices). ii. Indirect application of force is sufficient. b. Assault; an attempted Battery or the intentional creation other than by mere words, of a reasonable fear of imminent bodily harm. i. Mental state is Specific Intent. ii. Must be the intentional creation of a reasonable apprehension in the mind of the victim of imminent bodily harm. c. In many states these crimes have been combined into just assault. d. Some things can turn and assault and battery into an aggravated battery. ( or an aggravated assault.) i. Presence of a weapon. ii. Seriously bodily injury iii. Victim is a child. (or peculiar vulnerability.) iv. If the intent is to commit a robbery or a rape. Homicide; Common Law; (Year and a day rule; death must occur within a year and a day of the homicidal act. No longer the rule neither in most states nor in the MPC but it is the old common law rule.) 1. Murder; Causing the death of another person with Malice aforethought (Key is the Malice aforethought. Really a question about mental states. ) i. It is a term of art that means 4 things under common law. 1. Intent to kill; Test is going to look at what mental state. The question might tell you the D mental state. a. Otherwise there is two ways to determine the D mental state i. Look at the conduct; if there are obvious actions leading towards the intent to kill. 1. Actions that aren’t too obvious then argue it both ways, if intentional then it is murder, otherwise it is this other crime and argue that. 2. Or by putting words in the victims mouth. b. Also need to discuss transferred intent.
i. Take the intent that existed or the planned victim and transfer it to the victim that was actually harmed. 1. Can come up in almost any crime, but usually murder. ii. Exception; you don’t transfer the intent unless the actual harm occurred (so it doesn’t work for intent. ) 2. Intent to inflict great bodily harm. 3. Extreme recklessness. a. Depraved Heart murder. 4. Felony Murder a. There is a statutory exception under murder that created 1st degree murder. i. Difference between 1st degree and regular murder, is that 1st degree is meditated and deliberate. 1. Even though created by statute we still discuss it with common law murder. ii. How much planning? That is an issue for the jury. Be prepared to argue both ways. 2. Statutory Modification of Common Law Classification; i. To be changed form 2nd degree to 1st degree the murder must be proven to be part of; 1. Deliberate and Premeditated Killing; 2. First Degree felony murder (see MPC for specifics) Manslaughter 1. Voluntary manslaughter: intentional killing committed in the heat of passion after adequate provocation. i. What types of provocations are adequate. 1. Must be provocation that would arouse a sudden and intense passion in the mind of an ordinary person, and the person must not have had time to cool off. 2. Common provocations a. Assault and Battery b. Discovering spouse in adultery i. In some states words alone can never be provocation. 2. Involuntary manslaughter i. Killing committed with criminal negligence ii. Or, Killing committed during a crime that is not felony murder. Commonly called misdemeanor murder
Felony Murder; Any killing committed during the commission of or attempt to commit a felony. a. Felony? i. If a crime is punishable by more than one year in jail, it I a felony. b. Six limitations on felony murder. i. D must be guilty of the underlying felony. ii. Felony must be inherently dangerous. iii. Felony must be separate from the killing itself. 1. Aggravated Battery cannot be the basis for felony murder. 2. Must be an independent felonious purpose. iv. Killing must be during the felony, or during immediate flight. v. Death must be foreseeable 1. By definition in felony murder you are talking about accident death, and question is whether it is foreseeable. vi. Victim must not be a co-felon 1. Some states do allow this most states do not. MPC Homicide; 1. MPC Murder a. Intent to Kill b. Extreme Recklessness c. Felony Murder i. Similar to common law except not obviously dangerous, instead limited to a list 1. Burglary 2. Robbery 3. Arson 4. Kidnapping 5. Escape 6. Sexual Assault Manslaughter Intentional; Intentional killing committed under influence of a reasonable extreme emotional disturbance. Reckless Killing; Killing where the defendant is aware of and consciously disregards a substantial and unjustifiable risk of death. o If D is only negligent then the third offense under MPC. Criminally negligent homicide. o D should have known about a substantial and unjustifiable risk. Notice that there are no degrees under MPC.
Sex offenses 1. Forcible Rape; sex without the victims consent, accomplished by force, or by threat of force, or when the victim is unconscious. (At common law, was a general intent crime) a. Penetration Sufficient; Rape requires only penetration of female sex organ by the male sex organ. Emission is not required. b. Absence of Marital Relationship; at common law, and under the MPC the woman must not have been married to the man who committed the act. Today though most states have either dropped this requirement where the parties are estranged or separated or abolished entirely. c. Lack of Effective Consent; Consent even if given may be ineffective in several situations. i. Intercourse accomplished by force 1. Main element is on force. 2. Question is how much force is enough? a. Tons of thoughts on this. It may be a policy argument for the exam. ii. Intercourse Accomplished by threats; if accomplished by placing the victim in fear of great and immediate bodily harm, it constitutes rape. (failure to “resist to the utmost” does not prevent the intercourse from being rape if resistance is prevented by such threats. ) iii. Woman incapable of Consenting; Inability may be caused by unconsciousness, by effect of drugs or intoxicating substances, or by the victim’s mental condition. d. Consent Obtained by Fraud; In limited circumstances intercourse with consent obtained by fraud constitutes rape. i. Fraud as to whether act constitutes sexual intercourse; If the victim is fraudulently lead to believe that the act is not sexual intercourse, the act constitutes rape. ii. Fraud as to whether the D is Victim’s Husband; Generally speaking it doesn’t constitute rape. iii. Other fraud; Generally will not make intercourse rape. 2. Statutory Rape; sex with a person under the age of consent. Even if the female willingly participated, consent is irrelevant. Age of consent varies from state to state, generally from 16 to 18. a. Strict Liability doesn’t matter what was intended, or the level of mistake. 3. MPC has different approach for 11-14, a reasonable mistake will be a defense (This is a minority rule most states don’t follow it) If you run into a crime you don’t know the professor is either testing you on something else, not the crime, or else they are going to give you the statute and test you on your ability to interpret statutes.
Inchoate Offenses Attempt; has an act requirement and a mentality requirement
1. Act requirement; Must have committed an act beyond mere preparation a. (Common law); conduct that gets dangerously close to the commitment of the crime. i. Traditionally there is a proximity test 1. Need the means and intent and the person/object in the same place at the same time. b. Act requirement (MPC); Conduct that is a substantial step towards the commission of the crime and strongly corroborative of a criminal purpose (MPC) 2. Mental State requirement; is a specific intent crime under Common law. (Since it has to be the specific intent to complete the crime.) a. You cannot attempt accidental (Negligent) crimes. i. NO attempt versions of reckless, or negligent crimes, or felony murder. 3. Doctrine of impossibility; D is saying I can’t be guilty of attempt because it was impossible to commit the crime a. Factual impossibility; It was impossible to commit the crime due to a circumstance beyond the D control. i. Not a defense to attempt b. Legal impossibility; Impossible to complete the crime because what the D was trying to do is not illegal. (D thinks it’s a crime but it isn’t) i. Is a defense to attempt, 1. But it almost never happens. 4. Withdrawal; under common law, abandonment/withdrawal is not a defense. a. Withdrawal, MPC, works only if they withdraw voluntarily and complete renounces the crime. i. Has to be motivated by a change of heart and not a fear of getting caught. Generally hard for the D to prove. ii. Has to be a complete abandonment, not just postponement, or decision to find another victim. 5. Prosecution for Attempt; A person convicted of the crime cannot be convicted of attempt as well. 6. Punishment for attempt; most states punish attempt less severely than the crime attempted. a. Commonly up to one-half the maximum penalty for the completed crime, with specific settings for crimes punishable by death or life imprisonment b. MPC: attempt may be punished to the same extent as the crime, except for capital crimes and the most serious felonies.
Defenses; apply to all crimes.
1. Capacity Defenses a. Insanity; Defendant must suffer from a mental disease or defect. i. Several Tests. 1. Common law, M’Naghten test; did D know his act is wrong, or did he understand the nature of his act. If not then not guilty. a. Elements i. Disease of the mind ii. Caused a defect of reason iii. Such that the D lacked the ability at the time of his actions to either; 1. Know the wrongfulness of his actions; or 2. Understand the nature and quality of his actions. b. Application i. D with Delusions; if delusions (False beliefs), it is necessary to determine whether his actions would have been criminal if the facts had been as he believed them to be. ii. Belief that Acts are Morally Right; D is not entitled to an acquittal merely because he believes his acts are morally right, unless he has lost capacity to recognize that they are regarded by society as wrong. iii. Inability to control oneself; traditionally it is irrelevant that the D may have been unable to control himself and avoid committing the crime. Loss of control because of mental illness is no Defense. c. Evidence Admissible; in practice this test does not restrict any evidence that shows the mental condition of the D. 2. Irresistible impulse test; was D unable to control his actions, or unable to conform his conduct to the law. a. The inability need not come upon the D suddenly. b. Some jurisdictions apply this and M’Naghten test, meeting either would provide an acquittal. 3. Durham/New Hampshire/Product test; was the crime the product of the D mental illness. (No longer used in any American jurisdiction)
Traditionally this was an application of a “but for” test in regards to the mental illness. 4. MPC / American Law Institute (ALI) test; If the D shows that he suffers from a mental disease or defect and as a result lacked the substantial capacity to either a. Appreciate the criminality of his conduct, or b. Conform his conduct to law. ii. Application is difficult since it is really a psychological question more than anything else. iii. Distinguish from incompetence. 1. For insanity issue is if the person was insane at the time of the act. 2. Incompetency asks whether the person is insane at the time of trial. a. Deemed incompetent if he is unable: i. To understand the nature of the proceedings being brought against him; or ii. To assist his lawyer in the preparation of his defense. iv. Diminished Capacity; Some states recognize defense of “diminished capacity,” under which the D may assert that as a result of a mental defect short of insanity, he did not have the particular mental state (Purposely, knowledge, recklessness or negligence) required for the crime charged. Most states recognizing this defense limit it to specific intent crimes. (Not held in most states) b. Intoxication;(Didn’t Study This) May be caused by any substance. Alcohol, drugs and medicine are the most frequent. i. Involuntary intoxication; is a defense to any crime. 1. Qualifies only if the results from taking the substance are; a. Without knowledge of its nature b. Under direct duress c. Pursuant o medical advice while unaware of the substance’s intoxicating effect. 2. May be treated as mental illness in which case court can apply a mental illness test. ii. Voluntary intoxication; 1. Common law says that it can be a defense to specific intent crimes, if the intoxication negates the intent. 2. Not a defense to Crimes requiring Malice or recklessness 3. Defense to first-degree murder, but not second degree murder.
a.
a. Reduces 1st degree to second, but doesn’t reduce 2nd to manslaughter. Common law “depraved heart murder’s” fall into this category of 2nd degree murder. Cannot negate the recklessness required for depraved heart murder. c. Infancy (Didn’t Study this); to young to be prosecuted. i. Common law historically; under age of 7 cannot be prosecuted. 1. 14 may not be trialed depending on crime. 14 and above is fine. 2. Modern question is if they are prosecuted as adult or child. ii. MPC; under 16 go to family court, 1. 16-17, family court determines if you are tried as adult or child. 2. 18 and above, prosecuted as an adult by default. 2. Justification; Self-defense. a. Distinguish between deadly force and non-deadly force. i. Guns and knives are deadly force (usually) ii. Bare hands are not deadly force (usually) b. Rules for non-deadly force in self-defense. i. Ok if it is reasonably necessary to protect against an imminent use of unlawful force against oneself. ii. No need to retreat before using non-deadly force. c. Rules for use of deadly force. i. Ok if D is facing an imminent threat of death or serious bodily injury. (Must reasonably believe that they are faced with the imminent threat) ii. Additional restrictions on deadly force 1. Aggressor rule; may not use deadly force if they are the original aggressor except if the aggressor withdraws from the confrontation and effectively communicates that to the victim, or if the victim suddenly escalates a non-deadly fight into a deadly fight. 2. Retreat rule; in some states the D is required to retreat before using deadly force in self-defense. a. Retreat to the wall rule. b. Not required to retreat if i. You cannot retreat in complete safety. ii. If you are in your own home. (Castle acceptation) iii. If you are defending against a kidnapping, rape, robbery or larceny. d. MPC rule is that retreat is not required, also known as modern American rule, or the true man rule. e. Reasonable mistake can still allow the D to make a claim of selfdefense.
i. Under common law, if there is an unreasonable mistake there is no self-defense. ii. Under MPC if the D kills under an unreasonable mistake they are guilty of manslaughter, known as imperfect self-defense. f. Use of force to prevent a crime; i. Can use non-deadly force to prevent any crime (within reason, although CA really is any). ii. Deadly force can be used only to prevent a felony that risks human life. “Dangerous Felony” g. Defense of others. i. Can use force to defend others just as you can to defend yourself. 1. Need not have relationship with the person aided. 2. Have to reasonably believe that the person needs aid based on the reasonable appearance of the right to use force. h. Defense of property. i. Non-deadly force; A person may use non-deadly force in defense of their dwelling when, it is reasonable to believe it necessary to prevent or terminate another’s unlawful entry into or attack upon their dwelling. ii. Deadly force may not be used to defend property. 1. Exception is Burglary. a. If you are inside the house. 3. Necessity; Self-defense, but not in terms of force against others, (meaning self defense that allows committing a crime. ) a. Choice of evils in other contexts. i. Committing a crime is less than the other crime. 1. At common law it cannot be a defense of murder. b. MPC allows it to be a D to murder. c. Duress of necessity involves a human threat, necessity involves pressure from physical or natural forces. 4. Duress; a. Defense if the D was forced to commit a crime if the D was under the threat of imminent death or serious bodily injury. i. Like necessity, at common law duress could not be a D to murder. b. MPC allows D to murder. 5. Entrapment (Didn’t Study This); a. If the Gov unfairly tempted the crime to happen. i. Must show. 1. It was the governments mind to offer the crime. a. D wasn’t looking for it. 2. That the D was not predisposed to committing the crime. a. Quite difficult.
6. Consent (Barely Discussed this); Generally not a D a. Can be a defense if it negates an element of the offense, consent is a complete defense. b. For consent to be a defense it must show that; i. Consent was voluntarily and freely given ii. Party was legally capable of consenting; and iii. No fraud was involved in obtaining the consent. 7. Forgiveness by the injured party after the crime is no defense. 8. Illegal conduct by the victim is not a defense.
Don’t underestimate how important it is to know the doctrine. When you are answering a question approach it mechanically and simplistically Identify the Offense Lay out the Elements Discuss each element with regards to the facts of the question. Remember all facts are there for a reason. Crimes against property 1. Larceny; trespasser taking and carrying away of the personal property of another, with e intent to steal. a. Specific intent crime i. Taking under a claim of right is never larceny. ii. Unreasonable mistake is a defense. 2. Embezzlement; Conversion of the personal property of another by a personal already in possession of the property, with the intent to defraud, a. Specific intent crime. 3. False pretenses; obtaining title to the property of another by an intentional false statement with the intent to defraud. a. Key difference is title. b. Most states have a consolidated theft laws, called either Larceny, or Theft or something of the like. 4. Robbery; a Larceny from another’s person or presence by force, or threat of immediate injury. a. Mental state is the intent to steal. b. How much force is required. i. Enough force to overcome resistance. c. Threat must be of immediate injury. d. If threat is of future injury it is called extortion. e. If threat is of embarrassment it is called blackmail. 5. Burglary; Breaking and entering the dwelling of another, at night, with the intent to commit a felony inside. a. It is specific intent. b. Most states have expanded to all buildings
c. Most modern states don’t restrict to nights 6. Arson; Malicious burning of a building a. State of mind is Malice. b. Used to be limited to dwellings, now extended to buildings other than dwellings. i. Used to not extend to your own dwelling now it does. Inchoate offenses and accomplices liability a. Accomplice liability is based on the concept that you can be responsible for what someone else does. 1. Person committing the crime is called principle. 2. Person helping is called an accomplice. a. Act is aiding or encouraging the principle. b. Mental state is; with the intent that the crime be committed. 3. Accomplishing is not a crime, but the accomplice is guilty of the principle crime as though they had done it, not only that but the accomplice is guilty of all other crimes that were foreseeable that the principle would do. 4. Accomplice’s guilt doesn’t depend on the principles guilt. a. Can be guilty even if other person has defense. ii. 3 defenses to accomplices. 1. Merely being present doesn’t make you an accomplish unless you help. 2. Mere knowledge does not make you an accomplice. a. Although if you know too much you could be an accessory. 3. Members of the protected class cannot be an accomplices, a. Victim of the intended crime is not an accomplice. iii. Withdrawal of being an accomplice, depends on what you did. 1. If you encouraged then all you have to do is discourage the principle. 2. If you aided, then you have to take affirmative steps to negate your assistance. iv. Accessory, knows the crime happened and you help them after the crime, with knowledge that it has been committed with the intent to help them avoid being arrested, or convicted. 1. Most modern jurisdictions this has different names, such as obstruction of justice etc. b. Inchoate offenses, Incomplete i. Solicitation; asking someone to commit a crime with the intent that they do it. 1. Specific intent crime. 2. Completion is not necessary.
a. Doesn’t matter if the person says yes, asking is the crime ii. Conspiracy; agreement between two or more people to commit a crime, plus an overt act in furtherance of that crime. 1. Specific intent crime; must intend it to happen. a. Crime is in the agreement plus an overt act, you don’t have to succeed. b. Overt act can be as simple as driving by a bank after agreeing to do the crime. 2. At common law you could not have a one-person conspiracy. a. MPC follows the unilateral rule, can have a conspiracy, even if only one of the people has the intent to go through with the crime. 3. Vicarious liability; if you are a member of a conspiracy you are guilty not only of conspiracy but of all crimes committed by your co-conspirators.
