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Criminal+Law+Outline 1

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Defining Criminal Conduct A. 4 Elements of A Crime i. Actus Reus ii. Mens Rea iii. Harm iv. Attended Circumstances y Greater punishment under certain circ. y D doesn¶t have to know or intend circ. y Age, value, time, place B. Culpability 1. Actus Reus²Culpable Actions a. Commission²Punishing Actions i. Act²physical activity including words; not including thoughts ii. Voluntary²opportunity for conscious choice at the time the act was made y Hypnosis, sleep walking and mere muscle reflexes are involuntary b. Omission²Punishing Failure to Act²[includes physician assisted suicide] i. There needs to be a legal duty to act, opportunity to for conscious choice to act, and failure to act. When is there a legal duty to act? y Statutory duty y Contractual duty y Relationship duty y Assumed care of another AND seclusion such that no one else could help y Peril created by defendant Good Samaritan Element y Majority/CA: no duty to help others y Minority: duty to help others



2. Mens Rea²Culpable Mental States a. Specific Intent²intent to perform the resultant harm b. General Intent²intent to perform the act that led to the harm with at least negligence

c. MPC---abandoned specific/general intent for gradations of mental state i. Intentionally and Purposely ii. Knowingly iii. Recklessly iv. Negligently v. Strict Liability d. Mistake of Fact or Law i. General intent²honest and reasonable mistake exonerates ii. Specific Intent²honest, even if unreasonable, mistake exonerates Strict Liability²no mistake can exonerate crime Statutory Rape y Majority [Strict Liability]: no mistake can exonerate crime y Minority/CA [General Intent]: honest and reasonable mistake exonerates when the victim is between 16-18 years old y British Rule [Specific Intent]: honest and even unreasonable mistake exonerates

iii. iv.

e. Strict Liability²No mens rea requirement i. 4 Questions to determine if crime is SL: y Words of culpability in statute? y Is the crime known at common law? o Crimes unknown at common law are strict liability o Crimes known at common law are specific intent EXCEPT: - Statutory rape = SL - Bigamy = SL - Felony Murder = SL - Forcible rape = General - Trespass = General - Assault = General Public welfare/regulatory offense? Did legislature intend to do away with culpability?

y y


Vicariously Strictly Liable: y Requires duty to prevent / oversee the operation Mistake of Fact in Strict Liability Crime y Ignorance of facts is no excuse Mistake of Law in Strict Liability Crime y Ignorance of law/statute is no excuse o Exceptions: - Mistaken Reliance: mistake must be honest, reasonable, and in reliance upon an interpretation of the law by one authorized to do so which is afterward determined to be erroneous - Knowledge of the law is made an element of the crime - Failure of Duty in Absence of Notice - Recent Enactments



C. Legality 1. Procedural Due Process a. Ex post facto i. Legislative: legislature cannot y Make criminal that which wasn¶t criminal when done y Expand punishment retroactively y Reduce the proof necessary to convict y Permit evidence that had been prohibited ii. Judicial y Majority: unforeseeable retroactive judicial expansion making something criminal that was not criminal when done does not violate procedural due process UNLESS the conduct was innocent y Minority: does violate procedural due process y Does not apply to prospective judicial expansion

b. Vagueness i. When the conduct has no overtones of constitutional rights, the legislature can write in vague terms c. Common Law Crimes i. Court cannot determine what is a crime if there is no statute, even if common law determined it a crime 2. Substantive Due Process a. Fundamental Rights i. If the conduct involves a fundamental right (i.e. deeply rooted in nation¶s tradition), court needs a compelling state interest to criminalize ii. If no fundamental right, court needs a rational basis to criminalize Forcible Rape A. Majority/CA Rule 1. Actus Reus a. Vaginal sexual intercourse b. By force or threat of force i. To prove force there must be honest and reasonable resistance, UNLESS« ii. Honest and reasonable fear such that they do not have to resist (i.e. too afraid) c. Without consent of victim 2. Mens Rea a. General Intent: honest and reasonable mistake exonerates b. No mistake defense when there are two interpretations of the facts B. Minority Rule 1. Actus Reus a. Force found in the act of penetration 2. Mens Rea a. England: Specific Intent b. Alaska: Recklessness C. Fraud 1. In the inducement: person knows they¶re having sex, but was fraudulently induced²no rape 2. In the fact: person doesn¶t know they¶re having sex²rape


D. Marital Exemption 1. Majority²rape is possible amongst spouses 2. MPC---rape is not possible amongst spouses III. Homicide A. Murder 1. CA: Intentional killing of a human being (or fetus) with malice aforethought a. Mens Rea: Malice Aforethought (MA) i. Express²premeditation and deliberation ii. Implied²no premeditation and deliration 2. Degrees a. First Degree i. Premeditation & Deliberation y Majority rule: mere seconds are enough y Minority: need opportunity for reflection on the intention to kill after it is formed ii. Lying in wait iii. Death During Enumerated Felonies (i.e. Felony Murder: Burglary, Arson, Rape, Robbery Kidnapping) b. Second Degree i. Intentional in unreasonable heat of passion ii. Negligence with conscious disregard for high risk of death iii. Intent to commit grievous bodily injury c. MPC²no degrees of murder 3. Five Types of Murder a. Intent to Kill i. Express MA ii. Specific Intent b. Intentional in Unreasonable Heat of Passion i. Implied MA ii. Specific Intent c. Negligence with Conscious Disregard for High Risk of Death i. Implied MA ii. General Intent


³abandoned and malignant heart´ means ³conscious disregard for high risk of death´

d. Intent to Commit Grievous Bodily Injury i. Implied MA ii. Specific Intent to commit only serious bodily harm iii. D must be subjectively aware of risk iv. MPC: rejects this as murder e. Felony Murder i. Implied MA ii. Strict Liability iii. Murder during intentional attempt of one of enumerated felonies (Burglary, Arson, Rape, Robbery Kidnapping) = first degree murder iv. Murder during one of unlisted felonies = second degree v. Limitations y Must be Inherently Dangerousness o Majority: fact based²felony murder if the felony was dangerous in this particular circumstance o Minority 1/CA: abstract²felony murder only if this felony is dangerous in all of its applications o Minority 2: Apply both y Merger o Majority: all elements of the underlying felony cannot be contained in the homicide²assault cannot be used in felony murder; but burglary can be used in felony murder o Minority/CA: (1) if burglary when the intended felony is assault of a person inside²no felony murder b/c single felonious assaultive purpose; however, (2) if burglary w/ intent to steal²felony murder because independent felonious purpose y Agency: Each cofelon is liable for another cofelon¶s criminal act done in furtherance of felony o Limitations - Murder cannot be done on an independent venture


Death must be of a person who is not a felon Majority: Murder cannot be committed by nonfelons (i.e. cops or bystanders) Minority: Murder can be committed by nonfelons if D proximately caused the killing

B. Manslaughter 1. Three types of Manslaughter a. Voluntary i. No Implied MA ii. Specific Intent iii. Reasonable Heat of Passion y Majority: Murder reduced to manslaughter if: o Acts of Provocation (not just words) - Danger: self-defense, battery, assault - Illegal Arrest - Mutual Combat - Sudden discovery of spouses adultery o Reasonable person would have been provoked o D was provoked o Reasonable period for cooling off has not occurred o D did not cool off y Minority: o Anything (including words) that would excite an reasonable person to kill is sufficient iv. MPC: extreme emotional disturbance reduces b. Involuntary i. Gross Negligence y No Implied MA y General Intent y Majority: Reasonable person would know there¶s a high risk of death y Minority: Subjective awareness of risk required ii. Unlawful Act / Misdemeanor Manslaughter: Death during and caused by reasonable performance

of a misdemeanor or non-violent felony (reasonably running through a stop sign and hitting someone) y No Implied MA y Strict Liability y Limitations o Dangerous Misdemeanor o Causation o Foreseeability IV. Causation ONLY FOR HOMICIDE

A. Causation 1. Actual Cause a. But for D¶s actions, harm would not have occurred 2. Legal Cause a. Defendant is required to foresee the harm i. Exclude: y Falling gargoyles y Acts of nature y Voluntary act by capable victim y Acts of God ii. Include: y Involuntary acts by unintelligent victim who is the instrumentality of defendant y Merely reckless acts by victims b. Tests: i. Majority / MPC: is harm too remote from the act by defendant as to make it unfair to punish? ii. Bar Bri: is harm the natural and probable cause of the act by defendant? iii. NY: is harm sufficiently and directly caused by the act by defendant? iv. CA: Highly extraordinary causes cut off chain of causation (includes grossly negligent but not merely negligent acts) V. Attempt A. Actus Reus 1. MPC/Majority rule: Substantial Step Strongly Corroborative of the Individual¶s Intent (i.e. towards completion of the crime) a. Not how far D has gone, but how clearly his acts corroborate the firmness of D¶s criminal intent. b. Dangerousness of D, not his acts. 2. CA test: Unequivocal Act Towards the Individual¶s Intent

a. Dangerousness of D, not his acts 3. AL rule: Slight Act in Furtherance of Individual¶s Intent a. Dangerousness of D, not his acts 4. NY rule: Dangerous Proximity To Success Test²acts must come or advance near the accomplishment of the intended crime a. Dangerousness of acts, not of D b. Abandonment is irrelevant if you¶ve already achieved dangerous proximity B. Mens Rea 1. Specific Intent²even if the underlying crime is a general intent C. Impossibility (only a defense in jurisdictions that use the CLOSE PROXIMITY TO SUCCESS TEST) 1. Legal Impossibility²When D has completed all the acts that he wanted to do, if there is no possibility of success, you cannot have attempt and legal impossibility is a defense 2. Factual Impossibility²When D has not completed all the acts that he wanted to do, you can have attempt and factual impossibility is not a defense D. Abandonment 1. Voluntary Renunciation---can change your mind before completed attempt 2. Limitation---cannot renounce because there is a cop watching the bank (this is involuntary) E. Caveat 1. Burglary and Loitering---although completed, it is only an attempt VI. Group Criminality A. Accomplice Liability²helper/accessory aids, helps, encourages or facilitates the crime 1. Actus Reus a. Voluntary activity that facilitated crime even if crime would have been accomplished anyhow b. Accomplice¶s mere presence even without act is enough ONLY IF the actor knows of presence 2. Mens rea a. Specific intent to ACCOMPLISH the crime; AND b. Specific intent to HELP accomplish the crime

3. Punishment a. Accessory cannot be guilty of more than what the actor has performed b. Accessory cannot be guilty of no more than what the actor has intended, even if the actor does a greater crime c. You are liable for what someone you hire to commit a crime does; even if they do worse 4. Relationship between Liability of Parties a. Fake actor + real accomplice = no liability for either because no crime b. Real actor + fake accomplice = actor is liable, accomplice is not. c. However, even if real actor is not convicted, accomplice can still be convicted 5. Instrumentality a. If the accomplice is using the actor as an instrument, then the accomplice is really the actor 6. Additional criminality a. Accomplice is liable for those additional crimes he intentionally assisted B. Conspiracy²agreement between two or more people to commit an unlawful act 1. Actus Reus a. Mutuality of understanding²express or tacit meeting of the minds b. Overt Act²act must directly move towards commission of the crime and must be more than mere preparation 2. Mens Rea: a. Two elements: i. Intent to agree ii. Specific intent to accomplish crime 3. Additional criminality²Wheel and Chain liability a. Majority: Each conspirator, link or spoke can be held liable for the acts of others only if the act: i. Is in furtherance of original agreement ii. Falls within scope of original agreement iii. Is reasonably foreseeable

b. CA: Conspirator is liable for any additional acts he intentionally assisted c. NJ: co-conspirator may be liable for acts to go beyond scope if they¶re reasonably foreseeable. 4. Caveats a. Need more than number necessary for crime b. Situations where supplying is sufficient to infer intent to agree i. Supplying item knowing it will be used in dangerous felony y Majority / CA: needs to be a dangerous item y Minority: can be an innocent item ii. Having a stake in the venture iii. Receiving unusual profits 5. RICO a. Elements: i. Enterprise²some org whose purpose is to perform a pattern of racketeering activity ii. Racketeering Activity²any criminal act specified in the anti-racketeering statute iii. Pattern of Racketeering Activity²two or more racketeering activities b. 4 Crimes under RICO i. Investing money derived from criminal activity ii. Collecting unlawful debt iii. Working for company involved in racketeering iv. Conspiring to commit i-iii c. RICO conspiracy is an agreement between two or more people to perform the predicate acts prohibited by the anti racketeering statute in furtherance of the enterprise; you can have liability of conspiracy of parties because the enterprise is the rim/hub 6. Elimination of Responsibility a. Renunciation²not guilty of conspiracy if you successfully thwart the success of the agreement by turning them into the cops b. Abandonment²not guilty of accomplice liability if you voluntarily communicate to all your resignation (you are still liable for what happened up until your abandonment)


Defenses A. Justification No crime so exonerates accomplice liability 1. Self-Defense: a. Elements: i. Unlawful and immediate threat ii. Subjective belief of imminent peril of death/harm iii. Honest and reasonable belief b. Deadly force: deadly force may be used to thwart or repel threatened apparent deadly force i. Majority / NY: honest AND reasonable belief of threatened deadly force justifies use ii. Minority / Imperfect self defense²honest, even if unreasonable, belief of threatened deadly force justifies use MPC: honest but unreasonable belief = negligent manslaughter CA: honest but unreasonable belief = voluntary manslaughter



c. Battered Women¶s Syndrome Defense i. Expert witness can show this person has syndrome and person w/ syndrome may reasonably do what person did d. Retreat i. Majority: you can use deadly force even if you can retreat safely ii. Minority/NY/NJ: you must retreat if you know you can do so in complete safety. Exception if you¶re in your home. 2. Defense of Others a. Majority: can use such force as reasonably necessary to thwart deadly force if you honestly and reasonably believe someone else is in harm b. Minority: actor steps into their shoes and court sees if they could use self defense c. Mistake i. Majority: mistakenly killing a cop is okay ii. Minority: mistakenly killing a cop is not okay 3. Property

a. Home (when occupied) i. Majority: you cannot use deadly force to thwart the taking of property unless the taking of property is accompanied by the threat of deadly force (i.e. burglary is assumed to incorporate deadly force) ii. Minority/CA: burglary must involve a threat of deadly force and most burglaries do not (CA statute: if burglar killed, assumption of deadly force) b. Home (unoccupied) i. Majority: deadly force trap never allowed ii. Minority: deadly force trap allowed if you could have used deadly force if you were there 4. Force used to resist arrest a. Defendant can use force to resist ILLEGEAL arrest 5. Forced used to effectuate arrest a. Misdemeanor: can use deadly force to effectuate an arrest for a misdemeanor ONLY WHEN: i. Deadly force was used in that misdemeanor; OR ii. Deadly force was used in resisting arrest b. Felony: can use deadly force to effectuate an arrest for a felony ONLY WHEN: i. Deadly force was used in that felony ii. Deadly force was used in resisting arrest; OR iii. Reasonable belief that deadly force will be used after the escape 6. Necessity a. Acquittal if honest, reasonable, and imminent belief that act was necessary to avoid greater harm b. Exoneration from Crime of Escape: i. Threat of death, rape, or harm ii. No time for complaint to authorities iii. No time to resort to courts iv. No violence used in escape v. Immediately reports to authorities once he has attained position of safety 7. Duress: will is overborne NOT A DEFENSE TO MURDER a. Majority/MPC: coerced through threat of force against you or another which a reasonable person would be unable to resist (no imminence requirement) b. Minority: D must be an innocent non-conspirator

B. Excuse Still a crime so there is still accomplice liability 1. Intoxication a. Pre-existing intent: if you already wanted to do it, but were too chicken, then got drunk and did it²no excuse b. Voluntary intoxication mitigates specific intent to general intent b/c drunks cannot form required mens rea; no defense to general intent/strict liability crime c. Involuntary intoxication ± must not have known that you were consuming an intoxicant ± negates specific and general intent crimes, but not strict liability d. Product Defense: I would not have done it, if it were not for the intoxication REJECTED 2. Insanity ABSOLUTE DEFENSE a. D must be competent to stand trial, understand charges and assist defense counsel b. If successful in defense, D will be locked up in a mental facility until a doctor deems her sane c. Raising mental condition of D i. Guilt phase²requisite mental state ii. Defense phase²reasonable explanation iii. Penalty phase²doesn¶t deserve max punishment iv. 4 tests for insanity used in state courts: y Majority/CA: M¶Naughten²did D, at time of act, lack ability to know right from wrong or the nature and quality of the act? o Knowledge not comprehension--he doesn¶t need to understand it y Minority: M¶Naughten PLUS² irresistible impulse to perform activity without time to brood y MPC: lacked the substantial capacity to appreciate the criminality of his acts or to conform their acts to the requirements of law y Federal test: lacked capacity to appreciate the wrongfulness of the act 3. Diminished Capacity Mitigates Specific Intent to General Intent a. D didn¶t have the specific intent necessary b/c of condition. Preemptive action (cf. affirmative def) b/c D¶s not admitting to the crime b/c he never had mens rea b. Majority: allows for intoxication and insanity c. Minority: only allows for intoxication

VIII. Theft Crimes


A. Larceny Specific Intent (to not return it) 1. trespassory²w/o consent (even consent gained thru fraud = no trespass) 2. taking²exercise dominion and control 3. w/ asportation²any movement of the property suffices 4. of another¶s superior possessory interest in valuable property a. trusted employees/bailees given superior interest over owner, but if they convert, it is embezzlement b. finders²when constructive possession and higher interest than owner, if finder takes, it is criminal conversion c. Valuable property²capable of being transferred (includes realty, stocks, services, labor) 5. w/ intent to permanently deprive other a. Specific intent to not return it 6. of beneficial use of property 7. Larceny Today includes: a. Larceny by Trick²possession of thing b. Larceny by False Pretense²title of thing c. Embezzlement²superior possessory interest B. Robbery²forcible larceny 1. intentional 2. larcenous taking of another¶s property 3. by force or threat of force 4. immediately (not future threat, or threat to person not present) 5. from the person of the V (or person in V¶s presence) C. Extortion²larceny by threat 1. intentional 2. larcenous taking of another¶s property 3. by threat (needn¶t be violent, direct or immediate, but can be) D. Burglary Specific Intent 1. Common Law a. breaking and entering²some movement b. a dwelling²place where people stay over night c. at night²attended circumstance

d. with intent to commit²specific intent e. a felony therein²listed, not misdemeanor 2. Modernly a. Entering²artificial means like extension of self/child OK b. A structure²3 walls and a roof c. w/ intent to commit²specific intent d. a crime therein²any crime included Punishment A. Sentencing For Years 1. Legislature determines max sentences a. Misdemeanor = 1 year max in county facility b. Felonies = 1 year max in prison 2. Judge determines what is appropriate for that individual B. Appeal 1. 2. 3. 4.


You can appeal determination of guilt or innocence Not reviewable if the judge sentences maximum term No appeal in regard to actual sentence; UNLESS Sentence violates the 8th amendment²whether the sentencing for years is grossly disproportionate to the evolving standards of decency in a civilized society (objective standard)

C. Death Penalty 1. Death penalty is not unconstitutional as long as it is administered w/ standards a. MPC standards: i. Separate evidentiary hearing to use death penalty y Jury hears aggravating and mitigating circumstances (i.e. facts of particular D such as violent past) ii. Victim given choice of the mode 2. Limitations a. States require death penalty when there is a killing of a police officer or of at least two people b. Cannot impose strict sentencing (i.e. has to be case by case) c. Felony Murder i. Can execute the actor ii. Cannot execute the planner; UNLESS iii. He was the killer or played a major role in the 3. Groups who cannot receive Death Penalty a. Retardation, Insanity, Competence, Age

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