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1) Define Statute
Part 1a 2) Contrast with Def Situation
Statutory Break down into 3) Affirmative Defenses?
Felony -Actus Reus -Self-D, Do3, DoH, LEDs
-Act was involuntary?
-Att Circ (mens rea) -Duress
-Causation issue?
-Att Circ (mens rea) -Failure of Proof (vol. intox, mistake
-Att circ unmet?
- Mens rea (specific/general) of fact)?
-Mens rea unmet?
-Social Harm
Attempt will likely be taken off, but watch out for a solicitation for the initial felony (as well as with the murder).
Agreement
Intent to Agree
A/R
M/R (Overt Act)(MPC)
Part 1b Can be implied from
1) Conspiracy is "Criminals do not go shouting
Statutory behaviros. Conspirators do
own chargeable conspiracies off of roottops MPC requires some overt
Felony not need to meet.
offense With Mens Rea of the Object act in furtherance of
(Conspiracy)
Offense conspiracy
Does Wharton's Rule
M/R 2
Apply?
Premeditation Factors
Lesser included offense? Wilful, Deliberate, Premeditated
1) Enumerated Felony -Threats during & before
Part 1c Wilful - Specific intent to kill
-Statements before &
First-Degree Res Gestea? Deliberate - Nature & quality + full
If enumerated felony for first after
Murder consciousness
degree, argue liability based -Ill-will b/w parties
Agent v. Prox cause Premeditated - Cognizable (twinkle
on the above crime if guilty -Blows after killing
approach? of eye)
-Brutal manner
-Lack of provacation
Mens Rea
Actus Reus and Causation
Part 1c Common Law Definition Affirmative
-Intent to kill
Second-Degree Defenses
- Was there a voluntary act? -Intent to injure; depraved
Murder The killing of a human being -Justiffications?
-Cause in fact? heart
by a human being with -Duress?
-Prox cause -Felony murder?
malice aforehtought
-Is the victim DEAD or brain dead? --------------------------------
Argue failure of proof?
Part 1d Part 1e
Sudden and Adequate
Voluntary Misdemeanor
Provocation?
Manslaughter Manslaughter?
Statutory Construction
Strict Construction of Statutes Legality Principle
Goal: To have most favorable interpretation for side. A defendant may not be punished unless conduct was considered illegal before its commission.
Ascertaining Intent: -----------------------------------------------------------------------------------------------
- Purposes appearing from the statute taken as whole (1) Criminal statutes should be understandable to reasonable, law-abiding persons
- Phraseology (2) criminal statutes should not be crafted to delegate basic policy matters to policemen;
- Ordinary meaning of words (3) Judicial interpretation of ambiguous statutes should be in favor of accused
- Technical meaning of words ---------------------------------------------------------------------------------------------------
- Law prior to statute A law can be unconstituionally vauge for two reasons:
- End to be Accomplisehd (1) Fails to provide notice -> Definiteness requirement
- Dictionaries, Legislative Debates, Punctionation (2) Authorizes arbitrary and discriminatory enforcement by police
Burdens
Burden of Production =
1st)
Burden of (Jury) Instruction 2nd) Burden of Persuasion
The obligation to convince the jury of a competing assertion. The
The obligation to present evidence at trial to support a legal party with the BPers bears risk of failing to convince jury.
claim.
Prosecution Test: Could a rational juror, on this evidence, In re Winship -> Prosecution ALWAYS bears the burden of
believe that defendant committed crime beyond a reasonable production regarding EVERY fact (element) necessary to
doubt constitute crime as charged, BEYOND a reasonable doubt.
Defense Test: Any foundation in the evidence to support an If met, Updated by Patterson -> Prosecution must prove "every
affirmative defense. sent to INGREDIENT of an offense"
Jury -
Presiding Trial Judge Determines if Met for Purpose of JURY Mullaney - Patterson Mess.
INSTRUCTIONS Patterson v. New York -
If Prosecution fails to meet burden on ANY element, then Mullaney v. Wilbur -
Unlike Maine, extreme
defendant is entitled to directed verdict of acquittal Maine statute says
emotional disturbance was part
If Defense fails, the affirmative defense instruction will not be murder must be "unlawful"
of affirmative defense, rather
given to the jury. (defined to mean no
than element of crime.
justification or excuse).
-> This shifted burden to
Words > Meaning
defendant to disprove an
Though this has same practical
element.
Patterson: The burden of persuasion for criminal elements may effect, because NY statute puts
UNCONSTITUTIONAL.
ONLY be placed on the prosectuion. BUT; if elements are this element under an
Cannot place burden of
re-written as aff. defs. they may be shifted to the defendnat, affirmative defense, the
an element of crime on
regardless of practical effect. defense must prove it TO
defendant
REDUCE charges.
Voluntary Act
Contraction of muscle willed by Bodily movement or muscular STEPS:
defendant's mind contraction. 1 - Identify the actus reus in statute
2 - Relate to ? 's actions from fact
Barber v. Superior Court 3 - Determine if act or omission would be
Time Frame
better for prosecution or defense; argue
Rule: A ? 's conduct must include DISTINCTION: Law
both
a relevant voluntary act; not all should prevent people
must be voluntary. + from actively causing
4 - Determine if voluntary would be better
EITHER for prosecution or defense; argue both
harm, but it should not
For prosecution -> Argue for a compel people to benefit
broader time frame. Mail bomb others.
sleeper.
For defense -> Argue for a shorter
frame of time, there will be fewer Omission of Legal Duty
voluntary acts Two elements. Jones v. United States
(1) ? must have knowledge of Ways to acquire crim duty:
the circumstances which give a) Statute, b) legal relationship, c) contract, d)
rise to the duty; AND assumption of care & seclusion, and e) creating a risk
(2) An opportunity to perform of harm to others
the duty.
Ex - Burglary: The breaking and entering of the dwelling house of another at nighttime with intent to commit a felony.
Voluntary Act;
Attendant Att cir. 1 Att cir. 2
circumstance; Att cir. 3
Property must be a dwelling Property must belong to
Mens Rea Must occur at night time.
house another person
Ex - Burglary: The breaking and entering of the dwelling house of another at nighttime with intent to commit a felony.
Volutnary Act + Attendant Circumstances = Social Harm BUT NOTE: "Causing...." is DIRECT statutory
form.
perspective
subjectivist
Mens Rea Attempt at MOMENT the defendant performed the final act she believed
necessary for the crime. HIghly subjective.
Attempt is a Specific Intent
Offense "Probable Desistance"
Even if the attempted crime How far has def. gone? If actor reached a point where it was unlikely that he would
is a general intent crime, the have voluntarily desisted from his effort to commit the crime.
prosecution will need to
demonstrate specific intent ie getting ouf of cab w/ minor = attempt. Forging but not filling prescription = not
to commit an attempt yet.
"Indispensable Element"
Actus Reus
Attempt when no further elements beyond actor's control are missing. (Victim not
Attempt = Perpetration present? Lying in wait but gun not delivered?)
(NOT preparation)
Highly objective.
Courts are pretty bad at the
distinction; have developed
a number of tests "Unequivocality Test"
Attempt when 3rd party observer would unequivocally recognize that a crime is
about to be committed.
Highly objective.
(1) Nearness of
Dangerous Proximity
danger;
(Proximity to Success)
(2) Greatness of
harm; AND
Attempt when conduct is in "dangerous proximity to success" - the
(3) Degree of
danger of success is very great." Three circumstances
Apprehension
perspective
objectivist
Solicitation
Note: NOT a request for assistance, but to commit the offense independently. Attempted solicitation is NOT recognized merely because the target
said "no." This is still a complete solicitation.
If A asks B to help rob a store with him, it is NOT a solicitation.
Only requires that ? caused the social harm in a " Elemental" Model of Mens Rea
COMMON LAW manner that demonstrated bad character,
malevolence, or immorality. & Requires that ? have committed the actus reus
MENS REA with a specified state of mind.
Regina v. Cunningham -> "Maliciously" meant the
social harm was caused from "wicked" activity,
ADD TRANSFERRED even if no intent to injure
INTENT RULES!!!!!!!!!!
Common Law
Alt Com Law. 1
Mental States Alt Com Law. 2
Class: Purpose to violate known - Voluntary,
- Act with "bad purpose" (culpability model)
legal duty + this purpose is bad intentional violation
NOTE: This causes an exception to the mistake
Wilful ie I want to kill and know it will harm of a known legal duty
of law provision -> if ? thought he was exercising
= Knowingly SCOTUS
legal right, there was NO bad motive
Cheek v. US
General
Intent
When ? takes an objectively ? punished for morally blameworthy
substantial + unjustifiable risk in FAILURE TO REALISE that he is Culpable Indifference
Criminal Negligence
causing the social harm defined by taking an unjustified risk. (? should have been aware)
statute. Remember: BP>L
APPLICATION TO
SPECIFIC ELEMENTS Statutory Interpretation
Specific vs. General Intent Guidance
NOTE: The main relevance between specific and
general intent comes from the use of affirmative United States v. X-Citement Video
Specific Intent - An Principles of Interpretation -> Find Leg Intent
defenses. Certain aff defs are limited to specific
honest, though
intent.
unreasonable, mistake of (a) If the actus reus element would criminalize
fact will destroy the mens otherwise innocent conduct, then prosecution must
Two kinds.
rea prove mens rea for it;
Type One - 'Culpability' Style Meanings
General Intent: With a blameworthy mindset OR
with a statutory mens rea that does not pertain to (b) If the only one mens rea, and at the beginning,
General Intent - An then it will apply to all actus reus elements;
specific motive
honest AND
Specific Intent: Statutorily specified intent; ex
unreasonable mistake of (c) If in middle of actus reus elements, a mens rea
'intent to deprive
fact will destroy the mens requirement will only apply to subsequent elements
rea in question
Type Two - 'Elemental' Style Meanings
General Intent: Criminal Negligence &
Recklessness
Specific Intent: Wilfuly, Purposefully, Knowingly,
Intentionally
MENS REA
MODERN PENAL Definition as applies to...
CODE
Results Conduct Attendant Circumstances
Intentionally
Acts purposefully if it is ? 's "conscious object to engage in conduct of that nature or to If ? is "aware of the existence of
Purpose such circumstances or he believes or
cause such a result."
hopes they exists"
Knowledge If ? is "practically certain" that his If ? is "aware that his conduct is of criminal nature or that such attendant
conduct will cause such a result circumstances existed
If ? "consciously disregards a substantial and unjustifiable risk that the material element exists or will result from his conduct."
Unjustifiable risk -> if reasonable person in D's situation would or wouldn't do. BP>L (L is reason for risk)
Recklessness Substantial risk -> Grossly negligent
Consciously aware
Criminal Negligence If ? should have been aware of a substantial and unjustifiable risk that the material element exists or will result from his conduct.
APPLICATION TO
Under the MPC, EVERY material element that constitutes the crime must satisfy a mental state.
SPECIFIC ELEMENTS
If there is a
single mens rea Applies to every element
term
Mistake of Fact MISTAKES
Common Law Modern Penal Code
If mistake is
Any mistake of Negates the mens rea Any mistake of
REASONABLE,
Effect of Defense Negate Mens Rea fact is legally fact is legally
then acquital.
irrelevant irrelevant
Non-culpable
Does the
Did defendant Does the defendant have
mistaken fact
make a good-faith the particular mens rea for
Inquiry negate the
mistake? the crime? (Common law
mens rea for
REASONABLE? specific intent rule)
the crime?
Mistake of Law
Need framework
Intentional Killings
Homicide
Actus Reus
1) Voluntary Act or Omission 2) Attendant Circ - " of a human being" 2b) Attendant Circ - 3) Result/ Social Harm - " Killing"
- Identify and describe the action - Was the deceased a human being? "another human being" - What is a death?
by defendant which caused or a fetus? - Merely touch on the fact CL - Cessation of breathing and
the killing. - NOTE: Significant split in authority. that defendant was the heart
- Was it voluntary? CL: Baby born alive one who killed and is a Modern Trend - Irreversible
Statutes: Vary by state human cessation of all three brain
segments
Common Law Murder
The killing of a human being by another human being, with malice aforethought Causation
(1) Actual
Malice Aforethought
Aforethought now meaningless. Malice has four forms, one express & three implied.
Express Malice: Intent-to-Kill Proving Intent-to-Kill: The Natural and Probable Consequences Rule HEAT OF
"One who intentionally kills another human (a) People intend the natural and probable consequences of their actions; PASSION IS
being without justification, excuse, or mitigating (b) Defendant is a normal person; AFFIRMATIVE
circumstance exhibits malice aforethought" (c) Therefore, defendant intended the natural and probable consequences of act DEFENSE OR
------------------------------------------ Deadly Weapons Rule PROSECUTORIAL
Intentional Type 1: Purpose If the defendant used a deadly weapon in the commission, this N&PC rule is HEAVILY BURDEN
Intentional Type 2: Knowledge of Substantial REINFORCED for prosecution DEPENDING ON
Certainty. Permissible Inferences STATUTE
These MUST be presumptive inferences; an instruction which states "The law
Rules Below
presumes..." is a violation of the Due Process Clause
Under
Post-Crime Conduct
"Voluntary
The way a defendant behaves after the crime is of strong probative value to his initial
Manslaughter"
intentions.
Unintentional Killings There is a point where the risk taken really crosses into recklessness
- but prosecution cannot prove "adverts to and chooses to run" Felony Murder
At this point, the criminal negligence is a tool to allow conviction
Involuntary Manslaughter
Because "malice
aforethought" does NOT
The killing of a human being by another human being with criminal negligence require "intent" technically a
Felony Murder CAN be an
unintentional homicide.
However, it will ultimately be
Mens Rea a 1st or 2nd degree murder
- Defendant took a substantial and offense; rather than
Same Actus Reus Causation Issues unjustifiable risk of which s/he SHOULD involuntary manslaughter
Analysis as with the Timeline HIGHLY relevant when HAVE been aware
Intentional Killings. dealing with negligence. There is a Value Judgment
time period when an omission changes Look at the reasons for not taking action
from reasonable to unreasonable, to and the magnitude of harm risked; if not SEE MISDEMEANOR
CRIMINALLY UNREASONABLE justified by the likelihood of occurrence MANSLAUGHTER RULE
GROSSLY NEGLIGENT -> Crim Neg.
GROSSLY NEGLIGENT -> Crim Neg.
Common Law Malice Translating Common Law Malice -> Modern Statutory Results Statutory Category
Malice 4: Felony
Murder Rule
Any other felony
2nd
Degree
Default Murder
Malice 2: Intent
to Seriously
Injure
Default
Malice 3: Involuntary
Abandoned and Manslaughter
Malignant Heart
(Defense should argue it never crossed Defendant's mind -> Never adverted to the social risk
NOTE: Defense will always try to reduce to Criminal Negligence and thus Involuntary Manslaughter
Mens Rea: The intent to commit the felony satisfies the Misdemeanor
requirement of malice. Manslaughter
When a defendant causes
the death of another human Follow the Framework for
being during the commission Felony Murder Rule
of an unlawful act not
First Degree Second Degree amounting to a felony (which
Felony Murder Felony Murder would qualify for the Felony
-Statutorily Listed Any felony not Murder Rule)
Offenses prohibited by the
- Rape Indp Fel rule,
-Arson Inhert Danger, or Various Rules
-Robbery not statutorily a) All misdemeanors
-Burglary listed b) Only "inherently
dangerous misdemeanors"
c) Misdemeanors +
non-dangerous felonies
d) Mala in se v. Malam
prohibita
Defenses
Non-Exculpatory Public
Offense Modification Failure of Proof Justifications Excuses
Policy Defenses
Defendant argues that the Defendant argues that the The defendants act was the Although wrong the
Logic
Legislature MAY re-write Legislature CANNOT place Legislature MAY re-write Legislature MAY re-write Legislature MAY re-write
these to place the burden of the burden of ANY material these to place the burden of these to place the burden of these to place the burden of
affirmative defense on the element of a crime as an affirmative defense on the affirmative defense on the affirmative defense on the
defendant affirmative defense on the defendant defendant defendant
defendant
- Self Defense
- Defense of Others -Duress
-Mistake of Fact
-Involuntary Intoxication
List
Possible but not automatic Possible but not automatic Yes Never Possible but not automatic
Justifications
Because justified conduct is technically legal, remember defense
Internal Logic of Justifications: General Theory Accoringly should always argue that the prosecution should bear the burden to
Triggering Condition + necessity + Justifications look to the actor's conduct disprove beyond a reasonable doubt per In re Winship (thought
proportionality to determine if it was even wrongful. Prosecution need only respond with Patterson v. NY and say they do
not need to disprove affirmative defenses).
Elements
Crime Prevention (1) Emergency Situation
-Note: At com law, only
Deadly force may be used if Remember, normal citizens Civil Disobedience can
emergencies caused by
reasonably appears CAN use the law qualify for the necessity
nature may invoke
necessary to prevent a enforcement defenses, defense; however it must be
necessity; now human
forcible felony however, they will almost DIRECT civil disobedience -
conduct may as well;
certainly have met the S/D, the civil disobedient must be
(2) To prevent a significant evil
Do3, DoH first perpetrating exactly the
Felony Arrest (3) With no adequate
crime they are protesting.
alternative
If he reasonably believes it is (4) Harm caused not
ie if trespassing, must be
necessary to prevent the disproportionate to harm
violating trespassing laws.
escape (or effectuate the avoided
arrest) of a forcible felon, a (5) Situation caused through
person may use deadly force no fault of the defendant
Excuse
Involuntary Intoxication
Threat to damage property (Voluntary is Failure of Proof)
Duress - Unavailable to Murder unacceptable.
Four Categories of Intoxication Qualify
(1) Another person threatened to kill or greviously (1) Coerced intoxication;
If it fits into (2) Pathological Intoxication;
injure D or third party (of relation, ss);
category, (3) Intoxication by Innocent Mistake; AND
(2) Reasonable belief that the threat was genuine;
FULL (4) Unexpected side-effect of prescribed
(3) Threat was "present, imminent, and impending"
ACQUITTAL medication.
at time of criminal act;
(4) There was no reasonable escape from threat
except through compliance; AND
(5) D not at fault for exposing self to risk.
(1) she did not know the nature and quality of the act that she was doing; or
(2) if she did know it, she did not know that what she was doing was wrong.
Federal Test
If due to serious disease or defect, the defendant is unable to appreciate (1) the nature and
quality of her conduct; or (2) the wrongfulness of her conduct.
Infancy
Mind Doli Capax: Does the child have the ability to tell right
from wrong?
Infancy Defence to Sentencing
Some states follow M'Naghten Test for all of these kinds of
issues.
Minors cannot get death penalty
Rule of 7's
Minors cannot get life without parole
0-7: Incapable of Malice
7-14: Presumed incapable of malice
14 and up: Presumed capable of malice
Accomplice Liability
Derivative Liability
Common Law Classifications:
Note - P2P is NOT guilty
of "aiding and abbetting"
Principal in the First Degree (P1D) - The person who physically commits the act
but of the substantive
w/ the requisite mens rea; OR uses an "innocent instrumentality" to bring about
offenses committed by
harm.
P1P.
P2D may still be Principal in the Second Degree (P2D) - A person who intentionally assisted in
prosecuted if P1D is Liability is dependent on
the commission of the crime in the presence, actual or constructive, of the P1D
acquitted the P1P actually
breaking a law.
Accessory Before the Fact (ABF) - Same as P2D, but without actual or Accessories must
constructive presence of P1D be tried with or after
the P1P, never
Accessory After the Fact (AAF) - Person who, with knowledge of another's guilt, before.
intentionally assists the felon to avoid arrest, trial, or conviction. MODERN
CHANGE -> Now nearly all jurisdictions consider this a separate and less If P1P is acquitted,
serious offense than P1P's felony. accessories cannot
be convicted
Actus Reus
Kinds of Assistance
Rule of Accomplice Liability:
- Physical Conduct: Furnishing a Mens Rea
weapon, casing a scene, locking (1) Did the defendant in fact aid the behavior
door, or driving getaway car which constitutes the crime; and Drawn from facts of crime,
- Psychological Influence: "Presence
knowledge of the accomplice
+ very little else" (can be prior
(2)(a) Did defendant intend to aid the behavior about the P1P, etc.
agreement to assist; or expression
of non-interference) NOTE: MERE that constituted the crime,
PRESENCE IS INSUFFICIENT
- Assistance by Omission: Only valid
(b) with the mens rea for that crime This second mens rea
if the accomplice has a legal duty to element may be properly
intervene. Otherwise, no duty to inferred by proof of first
contact police and report an offense.
Conspiracy
Pinkerton Liability
When the solicitation is Once a conspiracy is formed, all members are
successful, it merges with guilty of all offenses by the otherparties so long as
the conspiracy. they were
Can simultaneously have both, one, or (1) Communicate withdrawal to all conspirators
neither accomplice & co-conspirator
liability by the same person
Elements of Consipracy
(Dual Intent)
Conspiracy Conspiracy is an offense in its own right; however, it is also a window for derivative liability (1) Intend to Agree
(2) Intend to commit object
As an Inchoate Offense of consipracy
Intent #1: Intent to Agree
Agreeing to commit a crime with
another person is found more Purpose
dangerous in its own right, and Knowledge (of criminal - Stake in crime
Sufficient alone.
therefore such an agreement is its conduct) PLUS - No legal purpose of service
M/R If actor has purpose to OR
own offense Knowledge insufficient; also - Gross Disproportion to Il. Entrprs.
aid conspiracy; I2A
need one of factors to right. - Aggravated Nature of Crime
satisfied.
As Derivative Liability