CRIMINAL LAW OUTLINE

INTRODUCTION
Four elements of a crime that the state must prove: 1) Actus Reus (AR) (the voluntary act/omission that causes the prohibited result. Cannot be a reflex, convulsion, hypnotic state, or unconscious act) **Every crime has an actus reus 2) Mens Rea (MR) (the culpable mental state. The intent. guilty mind) a. How do you prove it? Actions speak louder than words. You can infer state of mind through conduct. Generally proved circumstantially. b. MPC: purpose, knowledge, recklessness, negligence c. CL: intent (purpose/knowledge), recklessness, negligence 3) Attendant Circumstance (AC) Other elements the state must be prove to establish the prohibited resultExample: Human being, under age 18, dwelling house) 4) Causation State has to prove the act produced the result. The link between actus and reus 5) Concurrence In order to be guilty of the crime, the guilty mind must concur with the wrongful action Circumstantial evidence v. Direct evidence-Which one is better? Either one. The jurys job is to determine the facts, weigh the evidence, and assess credibility. Example: Someone comes in the classroom and yells, There is snow outside! but it is hot and by the time you go outside, the snow has probably melted. The quote is direct evidence. Circumstantial evidence is the pictures that you get from the traffic light cameras showing no snow at 10, 10:02, 10:05, and 10:10. prima facie burden: governments requirement to produce evidence on every element in its case in chief (prima facie means at first view, on the first appearance)

LEGALITY
I. The principle of legality 1

a. Due Process aspect i. Provides people with protection from arbitrary enforcement of the law 1. Notice issue: People need to know about the law. They dont have to have actual knowledge, but they need to have the opportunity to know a. Statutes have to give notice about the crime being committed ii. You cant have crime without an existing law. Principal of Legality condemns judicial creation of law iii. Malum in Se (evil within itself) 1. Example: Murder and rapethe nature of the crime itself shows its evil iv. Malum Prohibitum (crime because legislature says its a crime) 1. Example: Speeding, not filing tax returns II. Principles of Statutory Interpretation a. Plain meaning of the statute i. Legislature creates laws that define certain acts as crimes. ii. Judges interpret the laws and define to the factfinder what the law is. b. Challenge of determining legislative intent i. Terms in the law may come from common law 1. Judges presume that the legislature used common meaning of the term when they enacted the statute. ii. Court will always presume the legislature didnt intend to violate the Constitution c. Legislative history i. Judges must use stare decisis for interpreting the statute based on courts determination of a word, element, etc. of the statute d. Lenity Doctrine i. When the statute is ambiguous (could go either way), courts always rule in favor of III. Roles of the court and jury (finder of fact) in the Beyond a Reasonable Doubt (BRD) equation a. Judge interprets the law, defines it, and instructs the finder of fact b. Jury is the finder of fact (unless its a judge) and they apply laws based on facts of case i. Each material element must be supported by evidence that establishes proof BRD 1. BRD is reached when every fair and rational hypothesis of innocence has been eliminated such that the only reasonable conclusion is guilt 2. Prosecution has to prove that guilt is reasonable and that innocence is unreasonable ii. Inferences can help a jury decide if it is reasonable to conclude the state proved every element 1. Inferences are conclusions drawn from evidence and are permissive 2. A presumption is a mandatory starting conclusion of not guilty that may be rebutted with evidence c. *Jury will only get to decide the case when there is a reasonable possibility that the can be found guilty i. Jury cannot convict arbitrarily ii. Judge cannot let jury have the case if he believes there is another rational hypothesis d. Jury Nullification i. Jury has the power to return a not guilty verdict even though the govt has proved every material element BRD. 5th amendment prevents retrying . When juries 2

IV.

nullify, it violates their oath to apply the instructions given by the judge and usurps the power of the legislature to make laws and courts to enforce them ii. It is a power, not a right, of the jury. Role of evidence a. Direct evidence i. Directly from the s mouth ii. Eyewitness testimony b. Circumstantial evidence i. Weapon found in s house ii. Hair/fiber found at the scene. iii. All other evidence surrounding the crime c. One is not better than the other. It depends on the case and the evidence d. Jury may infer from the evidence to determine a conclusion

ACTUS REUS
I. Definition a. Actus Reus is the voluntary act or omission that produces the social harm that is the prohibited result defined by a statute. b. Actus = act, reus = prohibited result i. Social harm is the negation, endangering, or destruction of another which is deemed socially valuable 1. Example: Loss of life not only affects the victims family but society as a whole has lost their sense of security c. You are only responsible for voluntary, conscious acts i. Sleepwalking, hypnotic state, reflexes, convulsions, and unconscious acts are not voluntary ii. Policy: Punishing you is not a deterrent because you never meant to do the act. Mental component required a. An act without volition, knowledge, or duty is not an act at all b. For physical actsvolition (free will - this is not the same element as intent. Be careful.) c. For possession actsknowledge i. You must have knowledge of the possession of an illegal object d. For omissionduty i. You have no general duty to act, but you must act when there is a legal duty ii. An obligation to act is created by: 1. Status of relationship (parent-child) 2. Statutory duty (to pay taxes) 3. Contractual duty (babysitter) 4. Isolation/assumption of care (duty after starting to rescue) 5. Duty by creation of the risk (auto accident)

II.

MENS REA
I. Definition a. The requisite state of mind the government must prove to convict of a crime b. The guilty mind; the culpable mental state c. It is a sine qua non of crime: an essential condition; a thing absolutely necessary Why it is a fundamental principle of criminal law a. It justifies punishment because it links the act with the criminal intent b. What is the good to society if a person is punished for a crime they were not consciously committing? There is no punishment without a guilty mind. c. Culpability v. Elemental Meaning i. Culpability 1. The idea that any morally blameworthy state of mind that brings about any prohibited result is criminal. 2. Not used anymore because now we require the elemental theory Example: Cunningham had intent to steal but didnt intend to injure the mom (gas meter thief). ii. Elemental 1. The modern approach 2. Requires the culpable state of mind that makes the Actus Reus criminal 3. The statutorily defined mental link between the act and the prohibited result Example: Cunningham didnt have the mental intent to commit battery, so the act wasnt enough to constitute a charge for battery (or attempt murder) Common Law concept of malice a. Originally meant wicked b. Redefined to mean: i. Intent (expressed malice, defined by purpose or knowledge) ii. Recklessness (implied malice, wanton disregardforeseeable harm may occur but you take the risk anyway) Common Law concept of intent a. Purpose i. Conscious objective to bring about a certain result b. Knowledge i. Practical certitude or substantial certainty that the prohibited result will occur Relationship between Mens Rea and prohibited result a. Mens Rea must concur with the prohibited result b. It is the mental link between the legal act and the social harm i. Example: If you decide to kill Jimmy, and on your way to the store to buy a gun you accidentally run over Jimmy and kill him, its not murder because the prohibited result (reus) was not related to your mens rea. Proving Mens Rea: a. Proof of intent i. Motive is not intent; motive is motivation (why you do something) 1. Motive can prove intent ii. Intent is the purpose to produce a result (the decision) 1. May be a conscious objectiveto accomplish that result or engage in that 5

II.

III.

IV.

V.

VI.

conduct 2. May be a conscious awarenessa person acts knowingly when he is aware the result of such conduct is practically certain to be caused by his conduct b. Transferred intent i. Intent transfers if you produce the intended prohibited result. If the initial MR for harm existed, liability still exists if harm caused was different than harm intended ii. Law protects harm to a person, not a specific person. c. General v. Specific Intent (only at CL) i. General 1. MR that relates back to the act (every crime has a general intent) Example: Battery. AR is touching. MR is intent to touch. A mistake must be HONEST and REASONABLE to erase general intent. ii. Specific 1. An additional MR beyond the first MR (two MR elements) 2. Any offense that adds with intent to adds a specific intent 3. A mistake must be HONEST to erase specific intent. iii. At MPC there are no general/specific intent elements, just simply elements. A mistake that erases an element of mens rea can be had. d. Common Law culpable mental states i. Intent (prove by purpose or knowledge) 1. Conscious objective (purpose) to bring about the prohibited result 2. Knowledge that prohibited result is substantially certain to occur. a. Knowledge is imputed if: i. is actually aware of the fact ii. Correctly believes that a fact exists iii. Suspects that it exists and purposefully avoids learning if it exists (willful blindnessdeliberately avoiding learning the truthshows recklessness regarding truth so its considered knowledge, therefore intent) ii. Recklessness 1. A conscious disregard that conduct creates a substantial and unjustifiable risk of producing the prohibited result 2. Objective analysis of fault based on a reasonably prudent person (RPP) iii. Negligence 1. doesnt realize the risk be a reasonable person would a. a gross deviation from societal standard of care e. MPC culpable mental states i. Purpose 1. Conscious objective of committing the act or producing a certain result ii. Knowledge 1. Knowledge that prohibited result is substantially certain to occur 2. Knowledge is imputed if: a. is actually aware of the fact b. Correctly believes that a fact exists c. Suspects that it exists and purposefully avoids learning if it exists (willful blindnessdeliberately avoiding learning the truthshows recklessness regarding truth so its considered knowledge) 6

iii. Recklessness 1. Awareness of a risk that may cause an outcome, ignore that risk 2. Judgment aspect to jury whether the was aware of the risk iv. Negligence 1. doesnt realize the risk but a reasonable person would a. a gross deviation from societal standard of care 2. Judgment to jury whether a RPP would be aware of the risk f. Strict Liability i. No MR to prove. All you have to prove is the act g. Willful Blindness under MPC and CLa way of imputing knowledge on the i. CL put willful blindness under the definition of intent 1. Intent at CL means both purpose and knowledge of substantial certainty ii. MPC puts willful blindness under the definition of knowledge 1. Knowingly is not just actual knowledge, but also with substantial certainty 2. Element of knowledge may be satisfied by the inference from the proof that a deliberately closed his eyes to what otherwise would have been obvious to him a. If one actually believed that the fact did not exist, then he cannot be convicted (jury decides if they believe he honestly believed)

STRICT LIABILITY
I. Basic Principles a. Removes the element of proof of mental culpability (MR) i. Example: Statutory rape, bigamy, several malum prohibitum crimes It doesnt matter if there wasnt knowledge of girls age or mistaken belief that previous marriage was invalid b. All that must be proven is the AR c. Evidence of why the crime was committed isnt even admitted or relevant d. Makes pathway to conviction easier e. There is still a MR component (all crimes have a MR element) but the state just doesnt have to prove it f. Mistake of fact doesnt matter in SL cases because the MR doesnt have to be proved. g. Courts, in general, really disfavor SL offenses because criminal law is all about punishing those with a guilty mind h. No Strict Liability under MPC i. MPC is explicit: if there is no MR indicated, the courts shall presume recklessness as a required minimum i. Under MPC the statute must explicitly state that there is no MR Five principles of Strict Liability a. Legislature can omit MR explicitly when they draft criminal statutes i. There is no constitutional right to MR b. Legislature normally doesnt omit MR because proof of culpability is central to the idea of criminality c. If they choose to omit MR element, it will normally be for a minor, regulatory offense with minor punishment (not prison). If not a regulatory offense, default back to needing MR i. MR is generally required when punishment of the wrongdoer involves prison time or death penalty (it outweighs the regulation of social order as a purpose of the law in question) ii. MR is generally NOT required, therefore SL, if the penalty is light, involving a small crime and no imprisonment because there is a compelling public interest and it would be overwhelming to have to prove every persons intent for running a stop sign, etc. Example: Minor liquor laws, antinarcotics laws, traffic violations, etc. d. When a court interprets a statute, if it is non-regulatory, it will interpret that the legislature intended MR i. The court is always inclined to interpret MR into a statute e. For legislature to rebut the courts presumption of MR, they must do so explicitly in the statute itself or implicitly through legislative history or some other mechanism

II.

MISTAKE
I. Understand the (in)significance of conditional intentWhat if a carjacker says Give me your car or else I will kill you Does this prove intent to kill? a. There is no such thing as conditional intent. The law treats the condition given as intent b. The carjacker has conditional intent to kill if the person doesnt comply with his condition c. If evidence establishes that the had intent to do something but it was conditional, then the must have the right to create the condition to use it as a defense i. Conditional intent does not defeat intent if the condition is invalid II. Mistake of Fact a. MPC says if mistake nullifies any element then you are left with whatever is left b. Technically it is not a defense, but it has the effect of a defense because if it happens, then is not guilty c. At CL mistake is like an eraser. It knocks out the MR pillar by erasing the intent d. Honest/good faith mistake negates the specific intent element (subjective test) i. You cannot intend to do something you dont believe ii. Doesnt matter how unreasonable the mistake is so long as it was honest e. Honest and reasonable mistake negates the general intent element (subjective/objective test) i. Did the honestly believe it? ii. Even if he honestly believed it, would a reasonable person have believed it? 1. Jury looks through their own eyes to determine reasonableness 2. Its always easier to prove the objective view than the subjective view 1. Its harder to prove the is lying 2. It isnt possible to have a dishonest, reasonable mistake because it was dishonest! f. Treatment of mistake of fact under MPCthe Eraser concept i. If there was a valid mistake it erases that particular element of the crime and you are left with what is left ii. If mistake of fact, ask: 1. Does the mistake point to a general or specific intent element? 2. Is the mistake honest or reasonable? 3. Is there anything left after the erased intent? iii. Under MPC, start with purpose. If you erase that go to knowledge, then recklessness, then negligence, then nothing 1. You must erase EACH culpability requirement to get not guilty III. Mistake of Law a. Rarely a defense i. What thinks is a mistake of the law is usually a misunderstanding of the law ii. If you misinterpret the law yourself, you simply misunderstand the law; therefore, you have no defense b. Ignorance of the law is never a defense to a general intent element no matter how reasonable that mistake may have been. Members of society are on presumptive notice. c. When you can claim mistake of law: i. Application at common law to specific intent element 1. The only time you have a defense of mistake of law is when mistake of law negates the specific mental statewhen the law makes knowledge of the law part of the offense 9

a. Example: Not paying taxesyou have to know you have a legal duty, but sometimes you can prove you honestly didnt know 2. The estoppel concept related to mistake of law a. When you rely on an official source who has authority to interpret that law, you can claim detrimental reliance (estoppel) on the appropriate govt authority to get a mistake of law defense

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CAUSATION
I. Cause in Fact a. The act is what caused the result b. Must have cause in fact to have proximate cause, but you may have cause in fact without proximate cause (when you have an intervening superseding cause) c. Three ways to prove cause in fact: i. But for (direct cause) 1. The death of the victim or prohibited result would not have happened but for the s conduct ii. Substantial factor 1. When two people act independently of one another and their actions standing alone both would have caused the death/prohibited result 2. Essentially, there are two but for causes that would have caused the prohibited result when it occurred iii. Acceleration 1. When the actions of one person set the death in motion and someone else comes along and hastens the time in which the person dies (aggravation is not enough) 2. The second persons actions alone would not have caused the victims death/prohibited result 3. In this case, the medical examiner will look at time Proximate Cause a. You only look at proximate cause when you have established there is more than one cause in fact b. Proximate cause/legal cause is the actual cause of the prohibited result. It is the last act before the result occurs i. Stated differently, it refers to responsibility: Who should be held responsible for the prohibited result or when should a not be held responsible because someone else is responsible ii. Dont assume the but for cause = proximate cause c. How to approach the question: i. Is there more than one but for cause? ii. If yes, it will usually come down to a question of foreseeability. 1. When other cause is foreseeable a. A foreseeable intervening cause should never relieve the of liability b. Example: Drunk driver hits another car and it lands in the middle of the road at night. Victim is not injured, but before he can exit the vehicle, another driver crashes into the dark car and kills him. The other driver is an intervening cause, but it is foreseeable (not superseding) that this would happen. iii. Looking for a break in the causal chain 1. Intervening superseding causethe force of act 2 came after act 1 and superseded act 1, severing act 1s causal link to the result a. An act of God b. Suicidal act by the victim 11

II.

c. Wrongdoing by an independent third party 2. What breaks the causal chain? ITS ALL ABOUT FORESEEABILITY! If it was unforeseeable, then it breaks the chain a. Unforeseeable coincidences b. Abnormal and unforeseeable responses 3. Voluntary human intervention will break the causal chain a. When the voluntary act of the victim is the intervening act b. Example: Womans husband beats her. She runs to her parents and dies because she slept on their doorstep and froze instead of going into their house. Abnormal response. Husbands beating not the proximate cause. d. The policy nature of determining proximate cause i. Jury decides whether they believe the facts show the chain of proximate cause has been broken. It is the fundamental role of the jury to determine whether the causal chain is broken and which actor is the proximate cause. If the chain cannot be broken, then actor 1 is the proximate cause ii. The more foreseeable the result, the more likely the will be guilty iii. The more deliberate the initial act, the less likely the jury will be to forgive an unforeseeable act (i.e., you tried to kill him but he got hit by a car after you shot him which ultimately killed him) III. Concurrence a. The act must concur with the legal state of mind (MR)

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HOMICIDE
I. Original CL concept of grading murder a. Definition (one bucket for death at original CL) Murder is the unlawful killing of another human being with malice aforethought 1. human being, life, and death definitions depend on the law of the statecan have different definitions of human being in different crimes b. Express Malice Murder (intentionaldeath is desired outcome) Express malice murder is an intentional killing of another human being with malice aforethought Prove express malice by: i. Intent to kill 1. Purposethe conscious objective 2. Knowledge of substantial certainty that death would be the outcome ii. Intent to cause grievous bodily harm 1. Seriously bodily harm that gives rise to the apprehension of death c. Implied Malice Murder (unintentionaldeath is not the desired outcome) Implied malice murder (aka depraved heart murder) is an unintentional killing bumped from manslaughter back up to murder by proving a wanton disregard for the value of human life implied malice cocktail. The gin is recklessness; the olive is a base antisocial motive. i. Prove implied malice/wanton disregard by 1. High degree of reckless conduct **degree of recklessness is a fact for the jury a. Example: shaken baby 2. OR Recklessness + base antisocial motive a. There is an inverse relationship between the twothe more of one, the less you need of the other b. Base antisocial motive is a risk created by another criminal activity (like using a guard dog to protect his illegal activity of growing marijuana and the dog kills a child. Unintended killing, but D was reckless and had a base antisocial motive for having the dog.) ii. IF you can show the acted recklessly with an altruistic motive or a social utility motive (that he did it for a good reason) then the cocktails are harder to prove a. Example: A doctor may perform a surgery with a substantial risk, but even if he is reckless in choosing to ignore that risk and performing the surgery, he had the altruistic motive of saving the patients life iii. The idea is that we should impute the intent to kill even if intent isnt there because the acted so ridiculously d. Felony Murder (unintentional killing) One is guilty of felony murder if a death results from conduct during the commission or attempted commission of a felony i. Usually 2nd degree murder ii. Requires proof of MR for the underlying felony iii. Original unrestrained doctrine 13

Felony (act) + Death (result) = Felony Murder 1. There was no MR (malice) element that needed to be proved as long as you could prove the was committing a felony, that had the requisite culpability to commit that crime (even if that MR had nothing to do with intent to kill) 2. At original CL, all felonies were punishable by death, so it didnt matter 3. Problem with unrestrained felony murder doctrine a. Once malum prohibitum felony offenses (defined by legislature) were added, they ran into a problem because some felonies were inherently evil and others were only malum prohibitum crimes. iv. Restrained doctrine 1. A solution to the original unrestrained doctrine that defines malum in se felonies as predicate felonies and changed the felony murder rule to be: Predicate felony + death = felony murder 2. Legislature defined predicate felonies, so if death occurs during the commission or attempted commission of a defined predicate felony, then charge him with felony murder 3. If the felony is not on the defined predicate felony list, it isnt automatically felony murder 4. Limits the scope of felony murder v. Understand the lack of symmetry that causes contemporary discomfort with this doctrine 1. Courts stick to the idea that crimes should be defined by culpability. Courts dont like malum prohibitum felonies being used for felony murder. a. Under CL, people accused of felony murder were more like depraved heart (implied malice) murderers because the felonies all had a high risk of hurting people (manifesting a wanton disregard for human life rather than malice) 2. Courts have tried to reinstate symmetry by making only inherently dangerous to human life felonies capable of being used in felony murder vi. Limiting doctrines to felony murder 1. Res gestae doctrine a. Have to prove the killing concurred with the felonythat the death occurred during the attempt, commission, or immediate flight of the felony b. Res gestae must be interrupted by a point in which the s have achieved a position of relative safety from law enforcement for the underlying felony to be considered terminated c. Applies to both restrained and unrestrained felony murder jurisdictions 2. Inherently dangerous felony rule a. This rule applies when a felony is an undefined felony or not predicate felony. It limits the list of felonies allowed to be claimed under felony murder by getting rid of all felonies that are not inherently dangerous to human life 1. IF you have a statutorily defined predicate felony, you BYPASS the inherently dangerous doctrine b. If you do not have a defined felony or predicate felony, prosecution must first prove the felony was inherently dangerous. 14

c. Two methods to determine whether a felony is inherently dangerous: 1. Abstract (majority because courts dont like the idea of felony murder) i. PRO ii. Look at the law itself and ask the following: Is it possible to imagine a way the could violate the statute without causing inherent danger? 1. If yes, then the crime isnt inherently dangerous to human life a. Example: Man violated three traffic laws, which is a felony. If he hits someone and kills them, NOT felony murder, because you could violate three traffic laws WITHOUT being dangerous. iii. Do not look at how the felony was committed in that circumstance. a. Example: Same as above. Man was fleeing from police. He was being dangerous, but since the felony he committed can be committed without being dangerous to human life, no felony murder. 2. Contextual (minority view) i. ANTI ii. Look at the context of the actual violation and consider the manner in which it was violated iii. How do you know if the crime was inherently dangerous?: You just look at the context-- broke the law and someone died, therefore, it must be inherently dangerous iv. In an unrestrained jurisdiction, you almost always can prove felony murder through this doctrine 3. Majority view: Agency theory (narrow funnel) a. Better for the --your co-felon/accomplice must cause the death b. During the transaction of a felony someone gets killed by someone other than the 1. Ask: Was that person who killed acting as an agent (cofelon) of the ? i. If yes, then the killing is also attributed to the ii. If no, then the killing isnt attributed to the 4. Minority view: Proximate cause (wider funnel)anyone can cause the death so long as it is foreseeable a. Better for the govt b. During the transaction of the felony someone gets killed by a person other than the c. A felon may be held responsible under the felony murder doctrine for a killing committed by a non-felon if the felon set in motion the 15

acts which resulted in the victims death 1. Example: robs a convenience store. Clerk shoots at in defense (foreseeable) but accidentally kills a store patron. Under the minority view, is guilty of felony murder. 2. Ask: Was the killing a foreseeable consequence of the crime? i. If yes, then is guilty ii. If no, then is not guilty 3. As long as the killing was a foreseeable consequence of the crime, then ALL co-felons are responsible 4. To defeat this theory: The killing must have been a result of an intervening superseding cause i. Example: the cop who was chasing you gets hit by lightning (unforeseeable coincidence) vii. Analysis: Three things to get a charge of felony murder: 1. Right felony a. Felony is expressly named by statute (predicate felony) b. Felony is inherently dangerous 1. A felony is not inherently dangerous if it could be committed without danger to human life 2. Exception: underlying felonys actus reus isnt serious bodily harm 2. Right timing a. Res gestae doctrine 3. Right connection a. Agency doctrine (narrow co-felon causes death during felony) b. Proximate cause (wide non-felon or acts of God cause death during felony) viii. After all this, if you have a felony and there was a death the jury MUST convict 1. Evidence of circumstances is not allowed ix. When a felony is not on the predicate felony list and is not inherently dangerous, does that mean you cannot charge with murder? 1. NO! You can charge with depraved heart (implied malice because of high degree of recklessness) x. If you cannot prove felony murder, you can still get the lesser included offense of the felony. II. Evolution of CL murdervarious jurisdictions approaches to defining degrees of murder **Not all jurisdictions have degrees of murder a. First degree murders or worse murders Intent to kill + premeditation + deliberation i. Intent to kill must be proved first 1. Purposeconscious objective 2. Knowledge of substantial certainty 3. Proof of intent to cause grievous bodily harm makes it difficult to prove P&D 4. Statutorily defined felonies (BARRK) usually 1st degree 16

ii. Premeditation 1. Quantity of thought-- was able to think about it beforehand 2. A spontaneous reaction defies the notion of quantity and quality of thought and negates the twinkling of an eye theory iii. Deliberation 1. Quality of thought-- was able to rationalize and decide on the thought iv. P&D can be inferred by conduct/statements of prior to killing, threats by before/during the act of killing, ill-will between parties, etc. **First degree murders also include anything else the legislature has set out as first degree murder (examples: killing of a child, a police officer, a law school professor, racially motivated murders, etc. regardless of P&D) **P&D makes it a specific intent crimeif you cannot prove the specific intent of P&D you are left with the general intent crime of second degree murder b. Second degree murders not as bad murders i. Intent to killa general intent crime that doesnt involve P&D ii. Inherently dangerous felony murder usually second-degree III. CL Manslaughter a. What is it? i. A residual bucket for crimes where there was a heat of passion and all other unlawful killings b. Two types of manslaughter i. Voluntary Manslaughter (intentionaldeath is desired outcome) An intentional homicide, done in a sudden heat of passion, caused by adequate provocation, before there has been a reasonable opportunity for the passion to cool 1. Start with presumptive murderall elements are satisfied to prove murder (intent to kill) but the circumstances partially nullify the MR 2. Death occurs as a result of heat of passion a. Justification to the murder: It doesnt make an excuse; it justifies why it isnt as bad b. To be an excuse, you have to eliminate the causal connection (i.e., when someone gets in the way when you are trying to kill someone else you are justified in killing) 3. It must be proximate. If you dont see it happen, hear it happen, or it isnt proximate, you cannot claim heat of passion & jury wont even hear the evidence a. So, a father who finds out 5 years later who raped and killed his daughter does not have a defense in the CL court because it isnt proximate 4. State has burden to prove malice and to disprove heat of passion. never has to put on any evidence at all. 5. Elements needed to downgrade from murder to manslaughter: a. Adequate provocation (words are never enoughcourts were very strict that these five were the only kinds of adequate provocation) i. Adultery (in flagrante delicto) ii. Mutual Combat iii. Assault and battery 17

iv. Injury to relative v. Illegal arrest (false arrest) b. HOT and sudden passion (jury decides) i. No cooling off period c. Causal connection (judge decides) i. Link between the provoker and the death d. Intentional killing 6. Acceptable provocations have since expanded but words are still never enough 7. How adequate provocation evolved a. Many jurisdictions now use the ordinary man standard instead of a reasonable man standard because a killing is never reasonable b. Objective/Subjective reasonability i. Subjective: provocation is assessed based on the s susceptibility, vulnerability, and reasonability. Ask: In his shoes, based on his experiences, would that conduct be provocative? ii. Objective: reaction is assessed based on the ordinary person standard. Ask: Maybe it was subjectively provocative, but was there enough provocation to make an ordinary person with ordinary control respond the way the responded? c. If the was subjectively reasonable but objectively unreasonable, the will be found guilty of murder 8. Role of judge: Judge decides whether there is enough evidence of a causal connection between provocation, the passion, and the fatality 9. Rule of jury: Jury decides whether the reaction was of hot and sudden passion to downgrade murder to manslaughter ii. Involuntary Manslaughter (unintentionaldeath is not the desired outcome) An unintentional killing resulting from reckless conduct that does not manifest a wanton disregard for the value of human life or that results from gross negligence 1. Death results from recklessness (of any degree) a. knows of a risk and disregards it 2. Death results from gross/criminal negligence a. When the deviation from the standard of care is more than simple negligence IV. MPC concept of murder a. MPC does not divide murder into degrees b. Murder (where death is the desired outcome) Murder is an unlawful killing where death is the purpose/desired result i. Killing is done with purpose ii. Killing is done with knowledge of substantial certainty iii. In some jurisdictions, MPC still breaks the type of murder into two diff groups. Jury will decide which category to put the in by looking at the aggravating circumstances (offered by prosecution) and mitigating circumstances (offered by defense) when determining the sentencing: 1. Capital murder really bad 18

a. Murder with aggravating circumstances (listed in the code) b. Death sentence on the table 2. Murder not as bad a. Murder without aggravating circumstances b. Death sentence isnt an option for sentencing c. Extreme Indifference murder (where death is not the desired outcome) Extreme indifference murder (aka depraved heart murder) is an unintentional killing that bumps from manslaughter back up to murder by proving an extreme indifference to the value of human life i. To prove extreme indifference to imply purpose or knowledge there must be: 1. High degree of recklessness which manifests an extreme indifference to human life a. A conscious disregard of a known risk ii. A killing resulting from the commission of certain defined felonies presumptively (but not conclusively) falls into this category iii. There is no such thing as felony murder in MPC. In CL, state must prove felony and killing and they get felony murder. 1. In MPC, felony murder is captured under extreme indifference as a reckless murder (presumed if death was committed within a named felony) a. Must be a defined felony to get this presumption of extreme indifference murder b. If you get the right felony and killing, the gets a presumption of murder. They jury MAY convict of murder but prosecutor still has to prove the reckless behavior 2. In MPC, if a felony was committed and a murder resulted, evidence of the circumstances is allowed to prove/disprove V. Manslaughter at MPC a. Voluntary Manslaughter Extreme emotional disturbance An intentional homicide, done as a result of an extreme emotional disturbance ii. Conduct is intentional, so you presume murder. BUT in MPC, extreme emotional disturbance excuses purpose, partially nullifying the requisite MR because it drops the charge from murder to manslaughter iii. Words, actions, or anything can create the extreme emotional disturbance iv. There is NO causal connection requirement 1. So, it doesnt have to be proximate 2. Example: When the dad finds out 5 years later who raped and killed his daughter and goes out and murders him, he can please EED in an MPC jurisdiction v. If claims EED, bears the burden of proof here. Must prove: 1. acted under pressure of emotional disturbance 2. The emotional disturbance was extreme (subjective standard) a. Look at the subjective frailty of the 3. Reasonable explanation and excuse for the disturbance (objective standard) a. Preserves the objective barrier vi. Jury decides who gets the defense by looking to see if the excuse is reasonable by looking at the circumstance through the eyes of the 19

d. Involuntary Manslaughter Involuntary manslaughter in a MPC jurisdiction is a killing resulting from reckless conduct that does not manifest an extreme indifference to the value of human life 1. Death results from reckless conduct of any degree VI. Negligent Homicide (MPC only) Negligent homicide is a death that results from gross/criminal negligence 1. The risk is of such a nature and degree that the actors failure to perceive it, considering the nature and purpose of his conduct and the circumstances known to him, is a gross deviation from the standard of care that a reasonably prudent person would observe 2. First prove a reasonable person would have realized (regular negligence) 3. Then prove that most everyone would have realized it (gross negligence)

20

RAPE
I. Original elements Rape is the carnal knowledge of a woman forcibly and against her will a. Actus Reus i. Carnal knowledge b. Mens Rea i. Knowledge of it being against the victims will c. Attendant Circumstances i. By force or threat of force 1. Originally, force had to be extrinsic (beyond the act of penetration itself) ii. Victim not your wife (woman) d. Analysis i. Start with presumption that is innocent ii. State must prove lack of consent/against victims will BRD Against the victims will and lack of consent originally iii. Against the victims will 1. In order for to know it was against her will, she had to physically resist 2. Put the burden of proof on the victim to fight back 3. Had to have resistance to show lack of consent iv. Lack of consent 1. Saying no wasnt enough to show something was against her will wouldnt prove BRD that the knew she wasnt consenting 2. Valid consent is an absolute defense to rape. State bears the burden of proving there wasnt consent Understand the concepts of force and consent a. Is all consent really consent? i. No. Sometimes consent is really submission to force or threat of force ii. You have to prove that the submission was a product of the force (that there was a nexus between the two) b. When can consent be modified? i. Originally, consent could only be modified before penetration (could not withdraw consent after penetration) c. Is lack of consent enough to result in rape? i. Not at original CL. There also had to be force to prove that it was against the victims will The crime of Rape a. is presumed innocent. i. State has the burden to prove BRD there is no alternative hypothesis that the victim wasnt raped ii. Valid consent is an ABSOLUTE defense to rape 1. So, state has the burden of proving there wasnt consent b. At CL, withdrawal of consent had to occur before penetration i. At CL, someone who consents to vaginal penetration could not be raped, even if she later withdrew her consent after penetration ii. Reform rape says withdrawal of consent can occur at any time, even if penetration has already occurred 21

II.

III.

IV.

V.

VI.

1. BUT has a reasonable amount of time to withdraw before it is considered rape (a question of fact for the jury to determine what they believe to be a reasonable amount of time) c. Prior acts of the victim are relevant to whether or not her consent was valid i. Prior sexual consent with makes proving the current lack of consent argument more difficult to prove d. At CL, unwillingness was not against her will. i. Submission is required by force or threat of force ii. Solution at CL 1. If you can offer evidence of violence or threat of violence (an overt manifestation) then you can conclude the had the mental knowledge of lack of consent a. The idea is that if the had to resort to violence or threaten to use violence, he should know that she is not consenting b. Without resistance from the victim, the court cannot be sure there was a true threat. But resistance isnt always manifested. Sometimes the real threat is fear. iii. A victim who has no motive to fabricate the rape has a higher chance of establishing credibility (Example: V who doesnt want bf/husband to find out she slept with someone may cry rape as an ulterior motive) Reform Rape a. How the element of by force was modified in order to shift the focus of rape from the victims actions to the s state of mind i. The only force necessary now is the act of penetration itself. No further extrinsic force need be proved b. How this shift of focus opened up a new problem related to mistake and MR i. The focus shifts from the act itself to the mental state of the ii. MR of knowledge of lack of consent must be proved. now assumes the risk of the conduct and the burden of proof if he doesnt verify her consent. 1. Victim originally assumed the risk if she didnt resist. iii. Did he honestly and reasonably believe she was with it? 1. A subjectively honest but objectively unreasonable belief will still be found guilty of rape (because it is a general intent crime) c. Consent may be withdrawn at any time, even after penetration i. NO is enough to show lack of consent ii. must withdraw within a reasonable amount of time after consent has been withdrawn. Jury decides what is a reasonable amount of time Fraudulent consent iii. Fraud in the factum 1. Consent is invalid 2. is guilty of rape because victim didnt know that she was having sex Example: Patient thinks doctor is examining her but he is really having sex with her. iv. Fraud in the inducement 1. Consent to sexual intercourse is valid 2. isnt guilty of rape because victim knowingly consent to the act of sexual intercourse although under false pretenses Example: Doctor says patient will die unless she has sex with him right now 22

INCHOATE OFFENSES
I. What is it? Inchoate offense: a step toward the commission of a crime, with the step itself being serious enough to warrant punishment a. Target offensethe crime the is attempting to commit, conspiring to commit, or soliciting to commit b. Double inchoate offenses: When you attempt an attempt crime such as assault (which is an attempt to commit battery) Example: Attempting to lure a child into a car presumably with intent to commit further harm. Attempt to lure, attempt to harm child. ATTEMPT (least culpable) Attempt: the steps taken toward the commission of a crime that surpass the locus poenitentiae (the point of no return) a. Evidentiary issue i. Was the attempt complete or incomplete? 1. Complete attempt: All steps have been taken and every act has been done but the is unsuccessful in the intended result a. either assumes some fact mistakenly (pulled trigger thinking the gun was loaded but it wasnt) b. OR is unsuccessful in the attempt (shoots and misses the victim) 2. Incomplete attempt: does some of what he intended but then desists or is prevented from continuing. a. Begins crime but sees a police officer and desists b. Begins to commit a crime but thinks better of it and voluntarily abandons the crime b. Elements of CL attempt i. Actus Reus: Drawing the line between preparation and attempt 1. Mere preparation is NEVER enough! 2. Focus is on what the hasnt done yet 3. CL: Six tests for attempt. These tests seek to prove whether the has crossed the line of locus poenitentiae The judge, not the jury, applies these legal tests: a. Probable Desistance Testlikelihood of abandoning the crime i. Very similar to physical proximity/last act ii. Question is objective: Would an ordinary person who had gone so far voluntarily stop short of the final step? iii. Conduct constitutes attempt if, in the ordinary course of events without interruption, the s conduct would have resulted in the crime. b. Abnormal Step Approach i. An attempt is a step toward the crime that goes beyond the point where a normal citizen would go ii. Objective test: Would a reasonable person take that particular step? c. Dangerous Proximity Test 23

II.

i. Looks at the danger and probability of the offense ii. The more serious the nature of the offense, the further away from completion the actions need to be before they qualify as attempt d. Physical Proximity Test i. Sometimes called last act ii. The overt act required for an attempt must be proximate to the completed crime, directly tending toward the completed crime, or amounting to the commencement of consummation iii. There is nothing more for the to do Example: Unlicensed abortion doctor not guilty of performing abortions even though the patient was de-robed and all his instruments were on the bed ready to go e. Res Ipsa Loquitur/Un-equivocality Test i. The acts speak for themselves. ii. An act constitutes an offense when the s conduct unequivocally demonstrates and intent to complete the crime iii. You look at what the was doing, what he did, and NOT what was said Example: The case where the man threatened to kill another man while at a bar, later drove out to the field, and walked toward the cop after loading his gun. Cant say for certain what his intention was based on his verbal statements alone f. Indispensable Element Test i. has obtained all the elements needed for committing the crime. Cant be convicted if he is missing even one thing. Example: has gun, loaded, but has no direct line of sight Good hypo using all the tests: Reed is arrested on a plane with C-4 in his shoe. Can he be convicted for attempt under: Dangerous proximity test? YES (the crime is so dangerous and he is so close) Res Ipsa loquitur? YES (the act of having C-4 in his shoe speaks for itself) Abnormal step? YES (putting C-4 in shoe and getting on a plane is abnormal) Indispensable element? YES (he has every element he needs to ignite it) Physical proximity? NO (he hasnt yet committed the last act) ii. Dual MR requirement: 1. Intent to commit the actus reus 2. Intent (purpose) to bring about the substantive offense a. Has to have purpose to produce the result b. Knowledge, recklessness, and negligence are not enough to prove attempt c. Generally: i. When you engage in the offense you do so with the purpose of committing that offense ii. Law wants to deter people from doing wrong things, not just thinking about them iii. You can be guilty of an attempted strict liability crime because there is no MR element to prove. All you have to prove is that had purpose to act iv. You can prove attempted murder and voluntary manslaughter because manslaughter has the intent to kill element 24

v. You cannot attempt what you dont intend to doso you cant attempt any unintentional crime 1. you cannot attempt to commit a reckless crime (i.e., involuntary manslaughter, depraved heart murder, or felony murder) a. Example: Corn is cleaning his gun and ignores signs to clear the gun and take out the magazines (ignoring the known risk = reckless) He drops gun and it fires and he kills a soldier. Murder? Yes. What kind? Depraved heart b. Example 2: Same story but this time it almost hits a soldier, almost killing him. Attempted murder? NO. Why? You cant attempt a crime with a reckless MR element d. How does MPC view attempt? i. Shifts the focus from the act to the mens rea. Do the acts that has already done strongly corroborate (confirm or give support to) a substantial step? ii. Completed attempt: Easy to determine s state of mind because the last act has already occurred; the act just wasnt successful iii. Incomplete attempt: Harder to determine because the last act hasnt occurred; focus turns to the s state of mind iv. Actus Reus: Is the alleged conduct a substantial step towards the completion of the crime? 1. Judges instructions to jury are really asking the jury if they are satisfied that the act is substantial enough that it leaves only one inferencepurpose 2. MPC lists conduct that may be held as a substantial step. If the committed an act on the list, the just MUST instruct the evidence be considered by the jury on whether or not the was attempting a crime a. Lying in wait b. Enticing or seeking to entice the victim c. Gathering info about the place where crime will occur d. Unlawful entry of a structure e. Possession of materials to use in committing the crime that serve no other purpose but the unlawful one f. Possession of materials at or near the contemplated crime scene (rat poison students) g. Soliciting an innocent agent 3. If the committed an act off of the list, the judge can determine whether he thinks the act was a substantial step, and then he can instruct the jury that they may determine whether there was an attempt v. Mens Rea requirement 1. Purpose to bring about the target offense vi. Linkage between AR and MR 1. Look at the steps the has taken and other acts he has done to determine whether intent can be inferred 2. Its like the res ipsa loquitur + other states of mind vii. Assault 1. Attempt to commit a battery 2. An unlawful attempt, couple with presence and ability, to commit a violent injury of another III. Defenses to Attempt 25

a. Impossibility i. Pure Factual Impossibility If the facts had been as the assumed them to be, he will be convicted of attempted _______. 1. Never a defense to an attempt charge 2. When the attempt fails because a fact the assumed when he engaged in the conduct was wrong Example: thought the gun was loaded but it wasnt when he shot at her ii. Pure Legal Impossibility s erroneous legal assumption nullifies the ability to consummate the offense 1. Always a defense to an attempt chargeonly effective defense 2. You cant attempt a crime that wasnt a crime to begin with Example: thinks he is committing statutory rape, but the age is really 16 and not 15, so she is legally able to have sex with him. Cant be guilty of attempt because there was no crime Example: attempts to steal from B what actually ends up belonging to him. Cant be convicted of stealing something that actually belongs to you Example: Stealing ketchup when it was free anyway iii. Hybrid impossibility (only in some CL jurisdictions that havent gotten rid of it) s erroneous factual assumption nullifies a requisite attendant circumstance 1. Factual mistake relates to a legal element that is usually an AC 2. When the goal was illegal, but where there is a factual mistake related to the AC Example: When shoots with intent to kill A, but A has been replaced with a mannequin Example: When shoots with intent to kill deer, but deer is a stuffed toy Example: Attempting to bribe a juror, but the person isnt a juror b. Abandonment (at CL)/Renunciation (at MPC) i. Abandonment At CL when the voluntarily gives up, or abandons, the crime, the locus poenitentiae is moved and its as if the attempt never occurred in the first place. a. It cant be because he heard an alarm, saw a cop, guard dogs, or is afraid of being caught. 1. Its a legal fiction because in CL they act like there was never an attempt in the first place, even though if he had been caught in that first act, hed have been guilty 2. PROBLEM: If had an accomplice, the accomplice will get off too ii. Renunciation At MPC when the voluntarily gives up, or renounces, the crime, or he does something that foils the crime (prevents it from happening), the crime of attempt is erased 1. Attempt is attempt. If that act was a substantial step, it was attempt, BUT 26

can renounce his criminal purpose. Ask: a. Has the passed the locus poenitentiae? b. Did the voluntarily renounce the crime (an affirmative defense that erases the crime of attempt)? 2. Solves the problem with accomplices: Even if the renounces his criminal purpose, the accomplice may still be found guilty of attempt or the crime IV. SOLICITATION The crime of asking, enticing, inducing, or counseling of another to commit a crime a. The offense is complete as soon as the asks someone to commit the target offense b. The offense of solicitation merges into the crime if the offense is actually completed j. Once asks someone to commit the crime and that person does, the is charged with that crime and not solicitation c. Solicitation is really only an offense when the person doesnt agree to the crime (agreement forms a conspiracy as soon as theres an overt act) d. Actus Reus i. Acting, enticing, procuring the commission of a crime e. Dual MR i. Intent to procure ii. Intent (purpose) to consummate target offense f. Original CL requirement: effective communication of solicitation i. The solicitor had to have been successful in notifying the solicitee g. MPC variant: Uncommunicated solicitation i. As long as the believes he has communicated the solicitation, even if the solicitee never received notice, then the crime of solicitation is complete. 1. Example: The case where the tried to mail two letters to his wife to get the daughter not to testify against him h. Difference between CL and MPC i. Uncommunicated solicitation under CL is attempt to solicit (double inchoate offense) and under MPC is still solicitation CONSPIRACY The crime of agreeing to commit a crime a. At CL: Conspiracy must be at least bilateral i. The second person the makes the agreement with must actually be agreeing to commit the crime and not just pretending (if pretending, solicitation) b. At MPC: Conspiracy may be unilateral i. The thinks the other person really agreed although they may be a cop or someone pretending to agree to set them up c. Actus Reus i. Agreement (the act) to commit the prohibited result (reus) d. Mens Rea i. Intent (purpose) to agree ii. Intent to commit target offense 1. Cannot conspire to commit a reckless or negligent act (so no depraved heart or involuntary manslaughter) 2. The case where the man sold phone service to hookers: Court said he had to have (a) knowledge of the illegal use of the goods and (b) intent to 27

V.

e.

f. g. h.

i.

further that use a. Knowledge isnt usually enough to prove purpose UNLESS there is only one use for the product and it is illegal, then knowledge becomes purpose 3. Can you be charged with conspiracy to commit second-degree murder? a. Theoretically, yes, so long as the theory is under purpose/intent to kill Attendant circumstances i. Two or more people ii. Overt act in furtherance of the crime 1. An overt act is a legally made up locus poenitentiae 2. In most jurisdictions, in order to commit a conspiracy, you must commit an overt act (virtually any act will suffice) 3. Concurrence point: that the act and MR concur because you did the overt act Once you nullify the specific intent element of purpose to commit the offense, you no longer have conspiracy Basic rationale of criminalizing conspiracy i. Collusion in criminal purpose is more dangerous than committing the crime Does conspiracy merge with the target offense? i. At CL: Conspiracy NEVER merges with the target offense (unlike solicitation) 1. is charged with offense and conspiracy ii. At MPC: Conspiracy doesnt merge unless the object of the conspiracy is one crime (when the criminal gets charged he will only be charged for one offense) and that crime is consummated 1. Example: Conspire to steal one laptop and do it successfully. They would be charged with one count larceny because the one count merges with conspiracy. 2. Example: Conspire to steal 5 laptops but only steal one. They would be charged with one count larceny and one count conspiracy to steal 5 laptops. 3. Example: Conspire to steal 5 laptops and steal all 5. They would be charged with five counts larceny and one count conspiracy because the conspiracy was one agreement to steal the five (not five agreements). Co-conspirator liability: When a person who is not the actual perpetrator of a crime is held accountable as if he was Pinkerton Rule: Every co-conspirator is liable for any crime committed by any other co-conspirator that is in furtherance of the agreement and is foreseeable. 1. Acts in furtherance a. If the goal of the act is not the goal of the conspiracy, then the coconspirator is not guilty for that offense 2. Foreseeability a. The act has to be foreseeable as something that could happen during the commission of the crime b. Intervening superseding causes can sever co-conspirator liability 3. The basis behind Pinkertons rule is that we impute liability based on the conspiratorial relationship between all parties 4. All liability flows from the principalthe actual perpetrator a. Therefore, accomplice liability is actually derivative liability 28

j. You can be an accomplice without having conspired i. Example: Matt Damon and his friends in Good Will Hunting. Damon asks Affleck to pull over and he gets out and goes to beat the guy up on the basketball court. Friends get out and beat him too. Conspiracy? No, no express or implied agreement (unless you can prove they knew how much he hated him) Accomplices? Yes. k. Proving an intentional agreement i. Direct evidence 1. Very rarely do you prove conspiracy by direct evidence of the actual agreement ii. Inference of agreement 1. Usually this is how you prove the act of agreementKEY is that the circumstances rule out the fair and rational hypothesis that it was a spontaneous crime because conspiracy must be made prior to the commission of the crime 2. Co-conspirators can make statements about other co-conspirators 3. When you have a complex crime, circumstantial evidence is usually sufficient to infer a conspiratorial agreement 4. Knowledge usually isnt enough. Must prove purpose. BUT if there is only one use for the product, and it is an illegal one, then knowledge becomes purpose iii. Imputed agreement (kind of like willful blindness because it is obvious that what he was doing was illegal and he should have known but he just closed his eyes to it) 1. Stake in the venture a. When the purveyor of the goods acquires a de facto stake in the criminal venture, then that stake is the sufficient circumstantial evidence to imply an agreement 2. Knowledge of aggravated nature of the crime a. When you arent giving an exorbitant amount of the product but you have clear notice of the aggravated nature of the crime for which that product will be used l. Withdrawal? i. At CL 1. No such thing as withdrawal because if you never commit the overt act, there was never an act in the first place (legal fiction) a. Since conspiracy is its own crime and it doesnt merge with substantive offense, even if the crime is never committed, you can be charged with conspiracy 2. Defense: Withdrawal can only relate forward: a. When you communicate to all conspirators (even those you dont know) that you are out b. OR Intervene somehow to foil the plan 3. Still guilty of conspiracy, but severs Pinkerton liability and is no longer guilty for future crimes of co-conspirators ii. At MPC 1. Mirrors the attempt rule of renunciation. 2. Defense: Renunciation relates both forward and backward a. Must inform everyone (even those you dont know) that you are out 29

a. If can do that, then it severs s Pinkerton liability for further acts b. BUT if intervenes and foils the crime (doesnt even have to renounce, renunciation is implied by foiling the crime) then he can erase all guilt for conspiracy and future crimes = an affirmative defense a. Was there a conspiracy? Yes b. Was the a part of it? Yes c. Should he be guilty? NO. Affirmative defense of renunciation because he never intended to go through with it proven through his foiling of the crime m. General limitations on conspiracy i. Wharton Rule If the crime requires a plurality of participants (i.e., adultery, dueling, bribery), there is no crime of conspiracy UNLESS more persons participate in the agreement than are necessary for the crime a. Exception: If there is a statute that gives a specific law stating conspiracy ii. Legislative exemption doctrine When the allege co-conspirator is the intended victim that the law seeks to protect, you cannot charge the with conspiracy to commit the crime a. Example: Distribution of porn to a minor. The law is intended to protect minors iii. Braverman doctrine You charge the number of conspiracies based on the number of agreements and not the number of target offenses a. Exception: When the law prohibits an agreement for certain purposes, and one agreement has more than one purpose that is prohibited by a statute, then you can have multiple conspiracies b. Example: Bombing the World Trade Center killed 4,000 people. You dont charge with 4,000 conspiracies to commit murder. You charge with one conspiracy and 4,000 murders c. Example: conspires to smuggle drugs into the country, sells them, and has a weapon on him while doing it to protect it. He can be charged with three counts of conspiracy because there are laws that prevent all three of those offenses.

30

ACCOMPLICE LIABILITY
When a person who is not the actual perpetrator of a crime is held accountable as if he was I. Principals (at the scene of the crime) a. In the first degree: the actual perpetrator ii. Innocent Instrumentality doctrine: If someone uses an innocent person (say, a child) to commit the crime, then that person is held as the principal in the 1st even if he wasnt there b. In the second degree (accomplice): actually or constructively present at the scene of the crime and intentionally assists principal in 1st degree Accessories a. Before the fact (accomplice): intentionally assists the perpetrator before the crime is committed but isnt present during the crime c. After the fact: knowingly assists a suspect avoid arrest, apprehension, trial, or conviction 1. After the fact is now an offense of its own (i.e., hindering apprehension or arrest) Common Law Elements of accomplice liability a. AR: aiding and abetting, soliciting, encouraging, failing to prevent (if there is a duty to intervene) b. MR: dual intent 1. Intent to provide assistance (aid) to Principal in the 1st degree 2. Accomplice acted (or failed to act if there was a legal duty) with the level of culpability required to establish the offense aided c. The relationship between the accomplices state of mind to the completed crime a. Doesnt have to be only a purpose or knowledge intent. You can intend to encourage a reckless act. Liability d. You do not charge the accomplice with being an accomplice. You charge them with the crime itself e. All liability flows from the principal (the actual perpetrator) i. Accomplice liability is derivative liability (derived from his own participation in the crime) i. Whatever crime the principal commits, the accomplice is charged as if he committed the crime too so long as the offenses were the natural and probable consequence of the original offense ii. Accomplices can be convicted of a greater offense than the principal i. Look at the act that the accomplice encouraged, connect that with the accomplices MR, and determine what the level of culpability is iii. You can be an accomplice and not be a co-conspirator f. MERE PRESENCE IS NEVER ENOUGH! i. The presence has to be for the purpose of facilitating the crime ii. BUT the assistance need only be trivial to satisfy the AR component iii. Knowledge is not enough to infer liability g. An accomplices testimony in and of itself is never enough. Must have corroboration more than just proof that the crime was committed

II.

III.

IV.

31

V.

VI.

VII.

MPC Elements of accomplice liability c. AR: aid (or agree to aid or attempt to aid); solicit; fail to prevent (if there is a duty to intervene) 1. Mere presence is never enough, but assistance need only be trivial d. MR: 1. Purpose to promote or facilitate the offense 2. AND accomplice acted (or omitted to act) with the level of culpability required for the prohibited result e. MPC Approach: 2.06 i. Innocent instrumentality doctrine is retained but NOT characterized as accomplice liability. ii. Expands the scope of AR iii. Modifies the acquittal rule iv. Does not expressly include encourage but encouragement could be aiding or attempting to aid Acquittal and Abandonment a. In CL i. As a general rule, accomplice prosecution can only be after st the principal in the 1 degree has been convicted ii. Accomplice can abandon the crime, but the abandonment must: a. Neutralize the effectiveness of the offense b. Notify law enforcement in a timely manner so they may intervene and prevent the offense 2. In MPC ii. Conviction of principal in the 1st degree is NOT a pre-requisite to accomplice liability so long as the underlying offense is established iii. Accomplice can abandon the crime, but the abandonment must: a. Neutralize effectiveness of the offense b. Notify law enforcement in a timely manner so they may intervene and prevent the offense c. Make some other effort to prevent the crime Defense to accomplice liability a. If the principal is acquitted on a justification defense, there was no crime i. The accomplice cannot be convicted ii. Necessity b. If the principal is acquitted on an excuse defense, there was a crime i. The accomplice can be convicted ii. Duress

32

DEFENSES
I. Generally a. Pure/affirmative defenses must be brought forward by the defendant after the state has proved its case in chief b. Sometimes the evidence in the governments case in chief brings the evidence c. State has met its initial burden of proving both BRD: i. Burden of productionbringing evidence ii. Burden of persuasionpersuading the jury 1. never has burden of production or persuasion except in an affirmative defense d. When raises a mistake issue, the judge will tell the jury that the state has the burden to disprove this theory by proving BRD that the mistake was not honest and/or not reasonable e. With defenses, you start by assuming the state has proved ALL required elements i. When raises an affirmative defense 1. All or part of the burden may shift-- will have burden of production and depending on the jurisdiction may also have burden of persuasion 2. OR the it may change the legal standard of persuasion from BRD to having to prove the lower standard of by a preponderance of the evidence (more likely than not)

II.

JUSTIFICATION DEFENSES
What is normally a crime isnt a crime because it was necessary. Accomplice liability cannot flow from these defenses because there is no crime. a. Always ask: Was it really necessary? If necessary, then justified. If justified, then not unlawful. If not unlawful, then not a crime. b. Self Defense i. Elements of self defense: 1. Actual or apparent threat of death or grievous bodily harm 2. Threat was unlawful 3. Belief of imminent peril (MPC: immediate peril) 4. Response was necessary (no real alternative) ii. Special requirements (all derived from necessity and all must be there) 1. Clean hands doctrine a. cannot be the provoker (dirty hands) b. At both CL & MPC: you can make your hands clean again by totally withdrawing c. CL: It doesnt matter if you were the aggressor and he responded with excessive force. You started it. You dont have clean hands. No self defense. d. MPC: If you are the aggressor and the victim responds with excessive force, your hands become clean again and you can claim self defense 2. Proportional response a. Ask: How much force did use? Was it more than what he had to 33

do to stop the force? b. If used more force than what was needed, then it wasnt necessary, wasnt justified, wasnt lawful, therefore, he cant claim self defense. c. Use of deadly force is ONLY justified when protecting a life 3. Retreat doctrine a. It is only necessary if there was no viable alternative to get away b. Before can claim use of force for self defense must have retreated to the wall (as far as he could have reasonably gone) c. Exceptions: i. Castle doctrine 1. If you are in your castle you dont have to retreat 2. Includes the home and the area around it ii. If retreat will not provide safety (say, from a bullet) then doesnt have to retreat 4. Threat must be IMMINENT a. At CL: about to happen, overwhelming; NO ALTERNATIVE MOMENT b. At MPC: immediate, no opportunity to avoid the threat i. Relaxes imminence to what was immediately reasonable (softens the temporal requirement) ii. The no alternative moment may arise before the actual act from the 1. Example: The case of the lady who shot her husband who had beaten her for 20 years while he was sleeping 5. At the time the acts there was a threat and 6. Imminence is NOT always synonymous with necessity 7. Jury determines the necessity judgment of imminency through and objective critique from the lens of the s subjective state of mind: a. They consider what saw at that moment (objective) b. And then factor in everything knew about the victim iii. Test for fact finder: 1. At CL: would an objective reasonable person in the s position knowing what the knew honestly (subjectively) and reasonably (objectively from perspective of ) have believed it was necessary? 2. MPC: Belief it was necessary only has to be honest, BUT if the judgment was reckless or negligent, then is guilty of lesser included offense c. Imperfect self defense i. In some CL jurisdictions, who honestly but unreasonably acts in self defense will get an imperfect self defense 1. Instead of erasing the crime altogether, it acts as a partial excuse and downgrades murder to manslaughter because the honest mistake in s judgment of necessity makes it a reckless decision, negating the malice required for murder 2. Has NOTHING to do with intent or purpose to kill but that the judgment was reckless

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d. Reckless judgment of necessity i. In MPC, if jury determines the judgment was reckless, that the honestly believed it but the belief was reckless (acts as a partial excuse) 1. Instead of erasing the crime, it downgrades murder to manslaughter because it negates the purpose required for murder e. Defense of Others i. Ask: Was the person the defended justified in self defense? If yes, then the is also justified. The person being defended must meet the same qualifications ii. Here, the real trick is the clean hands part 1. At CL: is an alter ego of the one he is rescuing. If one comes to the aid of someone who had dirty hands, then he has no defense of others claim a. Defender steps into the shoes of the defended and only has as much right to defense as the defended would 2. Reform CL: So long as the defender reasonably believed the defended had a right to self defense, he is justified in his claim of defense of others a. Still may be able to claim imperfect defense of others if makes a reckless judgment of necessity iii. Again, defense is only justified if it is necessary. Necessity is critiqued by societys interpretation of reasonableness. An unreasonable use of force isnt justified because it isnt reasonable. f. Defense of Property i. Preservation of life is more valuable than even the most valuable property ii. At original CL: people could defend property against felonies but because felonies were all violent. Today, a violent felony is required to be able to defend with violence iii. Certain threats to the property may also be a threat to life too (i.e., burglary at night) 1. There is a presumption of threat that is rebuttable so look carefully to be sure that the was reasonable in his decision (i.e., didnt just shoot at a 5 year old who snuck in because she was in his castle) iv. Always a question of whether the made a good necessity judgment v. You may never use a mechanical device to protect your home because they dont reason or determine necessity g. NecessityThe choice of evils defense i. Justification defensenullifies the reus (the act that is unlawful) ii. A defense of necessity may be raised if the s actions, although violating the law, were necessary to prevent an even greater harm from occurring 1. Sometimes a greater good to society can be gained by violating the law iii. In necessity, the force is a result of a natural force 1. is still exercising free will and making a choice on his own 2. Its a theory of rational judgment and decision making. Ill break this law because breaking the law will do a better good to society 3. Must prove a judgment of necessity (similar to self defense necessity but without a threat to life) a. Look at the situation at the time it happenedwhat did the know? (Subjective) b. Was that decision reasonable based on what he knew? (Objective) 35

iv. CL elements: 1. Act to prevent a significant evil (must be a real emergency/imminent) 2. No adequate alternative 3. Harm avoided must be greater than the harm caused by breaking the law **Necessity is all based on what was reasonably foreseeable at the time of the action based on perceived necessity. This means the s value judgment on the choice of evils is tested by an objective standard from the s perspective at the time he made the judgment v. Necessity and homicide 1. CL: Necessity is never a defense to taking a human life (life is always presumed to be of equal value) a. Killing 1 person to save 10,000 people was NOT a necessity defense 2. MPC: No limit preventing application of necessity as a defense to homicide a. No outright prohibition; up to the jury to decide if homicide is justified by necessity defense b. Example: Doctors separating conjoined twins, knowing one of them dies and one of them will live. They did the act that produced the prohibited result, and they had the MR (because they knew one would die)Murder? Yes at CL, probably not at MPC

III.

EXCUSE DEFENSES
Excuse defenses nullify the MR of the act so a crime was committed but the actor is excused. Accomplice liability can flow from excuse defenses

a. Duress
i. An excuse defense; always personal belonging only to the person whose mind was overcome 1. Accomplices to a duress defense are responsible 2. People who coerced him are also guilty of whatever crime they coerced ii. Pressure arises from humans due to coercion 1. The human is coercing him to the point where he overbears the will of the and chooses for him 2. feels he has no alternative because of the coercion. He knows what he is doing is wrong and not justified, but he does it in order to avoid a more severe harm iii. Duress negates the MR element of culpability 1. Elemental theory of MRit is only proper to punish someone if he has the culpable state of mind. Punishment of someone without free-will will not rehabilitate him and it makes punishment invalid iv. Still need to prove it was necessary 1. Look at the situation at the time it happened from what the knew (subjective) 2. Was that decision reasonable based on what he knew? (objective) v. Elements of duress: 1. An immediate threat (to human) of death or serious bodily harm 2. Well grounded fear it will be carried out (subjective belief) 36

3. No reasonable opportunity to escape (no other alternative-objective) vi. Duress and homicide 1. CL: duress is NEVER a defense to homicide a. Exception: Felony murdercan claim duress to excuse the underlying felony b. If places himself in a situation where he is likely to be subjected to duress, he cannot claim duress as a defense. i. Classic example: gang initiation 2. MPC: If you were reckless in getting yourself into a bad situation and duress resulted, you cant use duress as a defense (dont worry about this one)

b. Intoxication
Intoxication is almost never a defense because juries usually revert to the general culpability of the i. Involuntary 1. Rare 2. A complete defense negating the MR of the offense and the AR (volition) 3. Four ways to be involuntarily intoxicated a. Coerced intoxication i. Someone holds you down and shoots you up b. Pathological intoxication i. Medical anomaly c. Innocent ingestion i. Didnt know what was in the brownies d. Unanticipated reaction to medically prescribed drugs ii. Voluntary 1. At CL: If presents evidence of voluntary intoxication, he is entitled to get the instruction of voluntary intoxication defense a. The defense almost never works because juries are not sympathetic b. The idea is that if you are that drunk, it is like you are having an honest, but unreasonable mistake which would negate the specific intent element of the crime c. Voluntary intoxication defense doesnt negate the general intent d. In crimes where state doesnt have to prove a specific intent, there is NO voluntary intoxication defense 2. At MPC: Allows for instruction of voluntary intoxication defense for any crime a. If the defense negates the element, then it is a defense b. Start with purposeknowledgerecklessnessnegligence c. Technically, it could negate recklessness to reveal negligence, BUT, if the reason you were intoxicated was voluntary, than it bumps back up to recklessness. Drunk negligence=recklessness

c. Insanity
i. Competencywhether or not can stand trial. Relevant at the time of trial 1. Does the appreciate the nature of the proceeding against him? 2. Can the communicate with his lawyer to assist in his defense? ii. How do you find out competency? 37

iii.

iv.

v.

vi.

1. Judge will order a court psychiatrist if there are conflicting competency results from state and 2. Trial is abated until becomes competentHe will usually go through treatment in a mental hospital 3. Judge is allowed to court order to take medication to become competent 4. Insane people stand trial all the time (but they are competent at the time) Insanity defense 1. No due process right to raise a defense of insanity 2. The idea behind it is that if the didnt know the difference between right and wrong, it wont act as a deterrent to punish him. Goes against the basis of criminal law and the idea of punishing the culpable mind 3. Not guilty by reason of insanity v. Guilty but insane a. Not guilty by reason of insanity is acquitted and goes free b. Guilty but insane serve the same punishment, but he serves it in a mental institution 4. If the law says you cant claim a defense of insanity for that crime, you cant 5. Insanity is a total defenseits like duress but it is internal 6. Insanity is relevant at the time of the offensethat he was unable to exercise free will which negates the culpability MNaghten Rule** 1. Two part test that relates completely to cognition: a. Because of mental disease or defect, didnt understand the quality and nature of his act b. Because of mental disease or defect, knew the quality and nature but he didnt know the act was wrong 2. There is no account for a volitional actits an all or nothing test a. Problem: psych doesnt deal in absolutes, so the test created an inherent friction with the science Irresistible Impulse/Control Test 1. Supplement to MNaghten 2. Related only to the volition component a. Because of mental disease or defect, lacked substantial capacity to conform his conduct to the requirement of the law. MPC test for insanity** 1. Softens the MNaghten rule by changing know to appreciate and adds a volition prongcombined MNaghten with irresistible impulse test 2. No longer an all or nothing test a. Allows a range of cognitive and volitional control capacities and places along a spectrum of mental diseases/defects 3. Two parts: a. Because of mental disease or defect, lacked substantial capacity to appreciate the criminality [wrongfulness] (MNaghten prong) b. Because of mental disease or defect, lacked substantial capacity to conform his conduct to the requirement of the law (volition prong)
1. An accused is not criminally responsible if his unlawful act was the product of mental disease or defect

vii. Durham test/Product test (usually not on exam)

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2. Product indicates that if not for the mental disease, the would not have acted as he did a. Could be the result of lack of control, knowing right from wrong 3. This test allows expert to usurp the role of the fact finder by saying there was no way the acted on his own because the acted because of his mental disease or defect. Experts rendered the opinion on the ultimate issue of guilt/innocence

Where we are nowFederal Insanity Defense Reform Act 1. Moved from MPC standard back toward MNaghten a. Took away the volition prong b. Sliding scale of capacity to appreciate has been reduced again c. It is an affirmative defense to a prosecution under any Federal statute that, at the time of the commission of the acts constituting the offense, the , as a result of severe mental disease or defect, was unable to appreciate the nature and quality or the wrongfulness of his acts i. Wrongfulness suggests a s ability to appreciate his acts were condemned by society ii. isnt arguing it wasnt wrongful. He is arguing it wasnt wrong 2. Burden of proof a. The state may but the burden of proof is on the for both production and persuasion 3. Texas requires proof of a severe mental disease or defect a. Pure cognitive test (no volition) b. was unable to know the acts were wrong i. Unable = a total loss of cognitive ability d. Diminished Capacity (more like a failure of proof defense) i. Used to reduce culpability of the based on evidence of mental disease or defect that was insufficient to establish insanity 1. Culpability theory of diminished capacity a. Operates kind of like Extreme Emotional Distress or heat of passion without the external trigger i. The crime is acknowledged but is partially excused because jury doesnt think he was totally normal and the gets convicted of a lesser degree (Example: Manslaughter instead of murder) b. Something happens in s mind that reduces his ability to form the requisite MR c. Insanity is a culpability theory of defense 2. Elemental theory of diminished capacity a. offers evidence of mental disease or defect to defeat prosecution evidence that acted with the requisite mental intent i. It can be the same evidence that was used to try to prove insanity b. Not a downgradeit is a nullification of a specific element c. Operates like voluntary intoxication because it erases the requisite MR i. Its almost as if the is intoxicated d. Success results in a total acquittal 39

viii.

ii. Clark v. Arizona case where the kid shot and killed a police officer thinking he was an alien invading town iii. It is more beneficial for the to be found to have diminished capacity than to be found not guilty by reason of insanity because: 1. Insanity finding means you go to a mental hospital. 2. Diminished capacity means you go free. iv. You dont plea diminished capacity. Judge will instruct for diminished capacity after an instruction for insanity v. Most states disallow evidence of mental disease or defect except for an insanity defense

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THEFT
I. Larceny
The intentional trespassory taking and carrying away of the personal property of another with the intent to permanently deprive a. Evolved out of trespass b. Elements i. AR: trespassory taking 1. Only of personal property because real or intellectual property isnt transportable ii. AC: carrying away of anothers property (asportation) 1. Very slight movement is required 2. Attempted larceny if there is no carrying away iii. MR: 1. Intent to take (general intent) 2. Intent to steal (deprive permanently) (specific intent) iv. Concurrence 1. The intent to steal MUST occur at the time of the conversion 2. Continuing trespassthe trespassory taking continues until the taking is terminated. a. takes an object meaning only to deprive temporarily (borrow) but then later decides to steal it. can still be convicted of larceny based on continuing trespass c. Possession, custody, and ownership i. Ownership 1. The person with the title to the property ii. Possession 1. When property is given with no conditions & you have full dominion and control iii. Custody 1. A temporary, conditional possession given by the person with constructive possession 2. If you go outside of the conditions, you convert custodypossession and have committed a trespassory taking 3. Example: Giving a memorial flowers to honor the dead is a custodial right to the memorial meant only for the purpose of memorializing the deceased d. Larceny by trick i. If you obtain consent to possession by trick/deception, there is no legal possession because consent is invalid ii. Owner retains constructive possession iii. Example: Starting a rental account to rent a movie (given possession) but doing it with the purpose of permanently depriving the store (keeping the movie) (larceny by trick) e. Mislaid property i. Owner of property may still have constructive possession over the property at the time. If you take it, you have committed the actus reus of larceny 1. BUT if you can convince a jury that the honestly but unreasonably believed the item was abandoned, then it negates the specific intent to steal and you are left with a lesser included offense of unlawful/trespassory taking 41

ii. At what point does property stop being lost and start being abandoned 1. Finder of abandoned property must make a reasonable effort to find the true owner for the statutory period of time 2. If it is truly abandoned, no larceny because the true owner renounced possessory interest f. Bailment i. When you give someone possessions to carry somewhere (Example: Movers) ii. If bailee takes entire bailed item, it isnt larceny, but if he breaks the bulk, and takes part of the bail, he is guilty of larceny g. Robbery Larceny by use of force or threat of force i. Force or threat of force is an attendant circumstance ii. MR is still intent to steal 1. If you cant prove intent to steal (deprive permanently) then it is NOT robbery or larceny but maybe aggravated assault or another crime 2. Example: Siblings arguing over the use of the car. One says, If you dont give me the car, Ill beat the crap out of you! NOT robbery. Maybe assault.

II. Embezzlement
Makes criminal the conversion of property in a non-trespassory manner a. Lawful possession of property on behalf of an owner that you then convert to your use with an intent to permanently deprive the owner b. Example: Customer gives bank teller (agent of the bank entrusted with this chore) a cash deposit. Teller keeps the cash. c. Key components i. Entrustment ii. Breach of the trust

III.Theft by false pretenses

When obtains both possession and title to property by false misrepresentations a. Distinction between larceny by trick and false pretenses is title (ownership) of property b. There is always a causation issue but there doesnt even have to be a direct causal link c. Elements i. makes an express or implied false pretense or misrepresentation ii. Intent to defraud the owner of the property iii. The owner of the property parts with the property in reliance on the false representation iv. Example: Switching price tags for an item to pay the lower price. Owner turns over title to the item under false pretenses 1. MR: knowingly misrepresent with intent to defraud

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