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CRIMINAL LAW Sum & Substance Professor Joshua Dressler


INTRODUCTORY POINTS A. Sources of Criminal Law. 1. Common Law. 2. Statutes Derived from Common Law. 3. Model Penal Code. B. Criminal Law vs. Civil Law. 1. Criminal. a. Defendant is punished. b. The criminal conviction itself says defendant is a moral wrongdoer. It is a condemnation by the community/a morality play. 2. Civil. a. Defendant pays victim. b. Defendant is not morally stigmatized. C. Theories of Punishment. 1. Retribution. a. People should get what they deserve. b. Humans have free will. If they choose to do wrong, it is appropriate to punish them. c. Looks backwards. Only punishes to the extent of the wrongdoing. 2. Utilitarianism. a. All forms of pain are bad. Punishment is not good, but neither is crime. Punish if imposition of pain will reduce the likelihood of future crimes. b. Looks at people as moral calculators. c. Forms of utilitarianism. 1) General deterrence. 2) Specific deterrence. 3) Rehabilitation. D. Principle of Legality. 1. General Rule. We do not punish a person because he is bad, immoral, or dangerous, or even because he committed an act of such sort. We only punish if that act is also defined, in advance, as a crime. 2. Law Cannot Be Vague. The law must be written in a sufficiently clear manner so that a reasonable law-abiding person can figure out what is being prohibited. E. Burden of Proof. 1. Beyond a Reasonable Doubt. 2. The Government Must Prove, Beyond a Reasonable Doubt, Every Element of a Crime.

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This standard means that a jury must have an abiding conviction of the defendants guilt. b. This is a constitutional requirement. COMPONENTS OF A CRIME A. Actus Reus. The physical part of the crime. B. Mens Rea. The mental part of the crime, or the state of mind of defendant when he committed the crime. C. Five Elements of a Crime: i. Voluntary act or omission. ii. Social Harm. iii. There is a mens reaA morally culpable state of mind. iv. Actual causation. v. Proximate causation. 1. Voluntary Act or Omission. a. Common law voluntary act: A willed muscular action. b. Not every act must be voluntary. Only the relevant act must be voluntary. c. Omission: Ordinarily, no punishment for failure to act. A duty to act arises when there is a: i. Duty required by statute. ii. Status relationship. iii. Contractual requirement to act. iv. Risk of harm. v. Once you act, you then stop, and it makes matters worse. 2. Social Harm. 3. Mens Rea. a. Mental state of actor at time he committed the actus reus. b. Defined in two ways: i. Person acts with requisite mens rea if he committed actus reus with a morally blameworthy state of mind. OR ii. With a particular wrongful state of mind. c. Strict liability. 1) Mens rea is not relevant. 2) Typically applies to public welfare offenses. 3) Typically involves malum prohibitum conduct, very minor punishments, and is not generally stigmatizing. 4) There is a presumption against strict liability. d. Model Penal Code mens rea. 1) Purposely. 2) Knowingly. 3) Recklessly. 4) Negligently (criminal negligence). e. Specific intent vs. general intent. 1) Some defenses are only available for specific intent crimes.


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2) f.


Specific intent: By definition, the crime requires proof of some particular mens rea that goes beyond social harm sought to be punished. Mistake of fact. 1) In strict liability, mistake of fact is irrelevant. 2) For specific intent crimes, mistake of fact will exculpate defendant if mistake disproves specific intent element of the crime even if mistake is unreasonable. 3) For general intent crimes, ask whether mistake was a culpable or blameworthy act. Generally, a person will be acquitted if mistake of fact was a reasonable one, and convicted if an unreasonable one. 4) Moral wrong doctrine, occasionally used with general intent crimes: Look at facts through eyes of defendant. Then, ask, is what defendant thought he was doing a morally wrongful act? Even if not a crime, if morally wrongful act, the defendant can be convicted because he assumed the risk of being convicted of a crime. 5) Model Penal Code does not distinguish between general and specific intent. It just asks, did the defendant have mens rea for the crime? Apply common law specific intent definition because all MPC crimes require a particular state of mind. Mistake of law. 1) Generally, ignorance of the law is no excuse, even if mistake was a reasonable one. 2) Exceptions: i. Mistake reasonably based on an official mistaken interpretation of the law by a body or person responsible for interpreting the law. ii. Statute requires that defendant be aware of another law, and defendants lack of awareness of other law negates element of offense requiring knowledge of that law. 3) Model Penal Code. Knowledge or understanding of the law is not relevant unless it is a stated element of a crime.



Actual Cause. Who or what caused the death of the victim? But for test: But for the defendants voluntary act or omission, would the social harm have occurred when it did? Proximate Cause. a. Look at all causal candidates that meet the but-for test, and decide which ones should be criminally charged.

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b. c.


When analyzing proximate cause, draw a line between defendants voluntary act and social harm. Did anything happen between these events? Intervening factors: i. Intended consequences rule. ii. Apparent safety doctrine. iii. Free will. Voluntary free will intervening act will shift responsibility from initial actor to free will actor. Some courts, rather than applying any of the preceding rules will look at intervening causes and distinguish between two kinds: i. Responsive. (a) A force that comes into existence as a response to the defendants conduct. (b) Normally, if responsive, law holds initial party responsible, unless responsive force is totally bizarre. ii. Coincidental. (a) A force is already in existence, but defendant put victim in position to be harmed. (b) If coincidental, the original wrongdoer is not responsible unless that consequence was reasonably foreseeable.

III. DEFENSES There are two types of defenses: i. Justification: Actor did right thing, or at least did nothing wrong. ii. Excuse: Actor did something wrong but should not be blamed because of an excusing condition. A. Justification Defenses. 1. Self-Defense. a. In general terms, use of force must be necessary, force used must be proportional to threat, and the actor must have a reasonable belief as to these latter two issues. b. Common law. 1) Justified in killing in self-defense if at the time the actor used deadly force that person reasonably believed that such force was necessary to combat imminent, unlawful deadly force. 2) Reasonable belief: Do not have to be right, but your belief must be reasonable. 3) Imminent threat: Threat is just about to happen/the idea is that you have no alternative. 4) Person who claims self-defense cannot be the initial aggressor, unless he effectively communicated that he was no longer a threat.

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Model Penal Code: Pretty much same as common law, but applies categories of reasonableness, so that you can have a partial defense if your belief is, for example, negligent. d. Battered woman issue: A jury may consider the battered womans prior experiences in determining the reasonableness of her action. Defense of Third Parties. a. A person may use force to harm aggressor to extent person she is aiding could use self-defense herself. b. Undercover cop? Most courts, following Model Penal Code, say reasonable belief is sufficient, even if incorrect. 3. Defense of Property. a. Common law: You can never use deadly force to protect personal property. You may use deadly force under certain circumstances to protect the home, but it must reasonably seem to be the only option. b. Modern jurisdictions: In most jurisdictions today, must also reasonably believe that intruder intends to commit a forcible felony therein. 4. Law Enforcement Defenses. a. Crime prevention. 1) It is justifiable for police to use force to prevent crimes. 2) Deadly force may never be used to prevent a misdemeanor, but deadly force may be used to prevent any felony. 3) Today, deadly force is only appropriate if reasonably believed to be the only way to stop a forcible felony. b. To effectuate arrest. 1) Common law: Could use deadly force in arrest or prevention of escape of any felon. Tennessee v. Garner: Supreme Court ruled that use of deadly force to prevent escape of a non-violent felon violates the Fourth Amendment. Necessity (Model Penal Code: Choice of Evils Defense). a. A residual defense. b. Elements: i. Reasonable belief of threat of imminent harm to self or others, including property. ii. Reasonable belief that committing harm is only way to prevent threatened harm. iii. Person must not be at fault for creating the emergency. iv. Harm caused must be the lesser evil (balancing of evils). v. Most commentators believe this defense is not available for murder. But Model Penal Code says can be used for any crime, provided you meet all elements. (Also, MPC does not require imminency.) 2)




Excuse Defenses.

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Duress. a. Threatened with imminent death or serious bodily injury. b. Reasonably believe that succumbing to threat is only way to save life. c. Defendant must not have been at fault for being in the situation. d. Not a defense for murder. e. Model Penal Code: It may be an affirmative defense if the actor engaged in criminal conduct because she was coerced into it by use of or threat to use unlawful force against her person or the person of another, a threat a person of reasonable firmness in her situation would have been unable to resist. Intoxication. a. Voluntary (Model Penal Code: Self-Induced). 1) Not an excuse. 2) But, may serve as a mens rea defense for a specific intent crime. 3) Model Penal Code: Same general principles. But, if charged with recklessness, which ordinarily requires awareness of risk, if actor was unaware of the risk due to voluntary intoxication, actor may be convicted of recklessness, but not a crime of purpose or knowledge. b. Involuntary. 1) Ingested intoxicant innocently. 2) Forced to take intoxicant. 3) Unforeseeable, unintended response to prescribed medication. 4) Courts are then sympathetic, and will permit it to serve as a defense to general, as well as specific, intent crimes. 5) Underlying basis of the defense is the same as for the insanity defense. Insanity. a. Four states have abolished the insanity defense. b. Insanity is an excuse because society wants to distinguish between the mad and the bad. c. If not guilty by reason of insanity, defendant is civilly committed to an institution. d. One can be mentally ill but not insane. e. Insanity tests. 1) McNaghten Rule. a) Two alternative prongs: i. Defendant did not know nature and quality of act at time he did the act. ii. Defendant did not know he was doing something wrong. b) This is a cognitive test. 2) Irresistible impulse test.

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a) Look to volition, not cognition. b) Defendant was unable to control himself. 3) Model Penal Code: Defendant lacked substantial capacity to appreciate the [criminality] or [wrongfulness] of her conduct, or lacked substantial capacity to conform conduct to the law. 4) Product/Durham Test. a) Probably not used anymore. b) Defendant is not guilty if criminal conduct is the product of a mental illness. Diminished capacity. 1) Mens rea: If defendant, because of mental condition, lacks specific intent to commit a specific intent crime, he will be acquitted. 2) Partial responsibility: Used to reduce the crime of murder to the lesser offense of manslaughter on the ground that person claiming defense is mentally ill, or has a low IQ, making him less culpable than a person who does not have that condition. Convict in proportion to capacity.


HOMICIDE A. Early Common Law Murder. Murder is the killing of a human being by a human being (would include suicide). B. Common Law Today. Murder is the killing of a human being by another human being. 1. Two Forms of Criminal Homicide: Murder and Manslaughter. 2. Actus Reus. Actus reus issues are rare. They occur when, for example, the victim is a fetus, or a person on artificial life support. 3. Year and a Day Rule. At common law, a death that occurs more than one year after the relevant assault took place is barred. 4. Mens Rea. a. Usually, it is the mens rea requirement that is at issue. b. Keep in mind the two common law crimes: Murder and manslaughter. C. Malice. 1. Aforethought. The word aforethought just reminds us that you cannot be convicted of malice afterthought. 2. Malice. Malice is covered by four human endangering states of mind: i. Intent to kill a human being (intend to kill or know with substantial certainty). ii. Intent to inflict grievous bodily injury on victim, and victim dies.

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Acting with an abandoned and malignant heart, or a depraved heart, or a depraved indifference toward human life. The idea is a total indifference toward the value of human life. Today, probably would refer to defendant as acting with extreme recklessness. iv. Felony Murder Rule. 1. Definition: Guilty if kill another person during commission or attempted commission of any felony. 2. Common Law. The common law also treats the escape from the felony as part of the res gestae, or body, of the crime. Thus, felony-murder rule applies. 3. Rule May Be Narrower. Some jurisdictions have narrowed the rule, for example, by requiring (i) that the felony be an inherently dangerous felony, or (ii) adding an independent felony limitation. Degrees of Murder. Many states have now divided murder into degrees. First degree involves the stiffest penalty. 1. First Degree Murder. a. Murder that is committed in a particular way, e.g., killing by poison or by lying in wait. b. Killing occurs during the commission of enumerated felonies. c. Killing is willful, deliberate, and premeditated. 2. Second Degree Murder. All other kinds of murder are second degree murder. Model Penal Code. 1. No Malice Aforethought Requirement, No Degrees of Murder. 2. Definition: A person is guilty of murder if she kills another person purposely or knowingly, or recklessly in a manner manifesting extreme indifference to the value of human life. Manslaughter. 1. Common Law. a. An unlawful killing by a human being of a human being without malice aforethought. b. Divided into voluntary and involuntary. c. Heat of passion (voluntary manslaughter): Killed because of adequate provocation, during heat of passion, and heat of passion occurred before actor had reasonable opportunity to cool down. Words alone never constitute sufficient provocation. d. Involuntary Manslaughter. a) In some states, the commission of a lawful act that might produce death and was done in a criminally negligent manner is involuntary manslaughter. b) Misdemeanor manslaughter/unlawful act: An unintended homicide that occurs during the commission of an unlawful act that does not amount to a felony is involuntary manslaughter. 2. Model Penal Code version of manslaughter.


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a. If a killing that would otherwise constitute murder occurs as a result of extreme mental or emotional disturbance for which there is a reasonable explanation or excuse, the defendant will be guilty of manslaughter. Provocation, per se, is not required. Diminished capacity also qualifies. b. A reckless, but not extremely reckless killing, constitutes manslaughter. A negligent killing constitutes a lesser crime of negligent homicide. V. RAPE A. Common Law. 1. Definition: Sexual intercourse by male with female not his wife without her consent. 2. Resistance Requirement: If male used force likely to cause death or serious bodily injury, female did not have to resist. If lesser force, woman had to resist in order for crime to constitute rapeas much resistance as woman was capable of. B. Modern Jurisdictions. Most states have reduced the resistance requirement, e.g., to reasonable resistance, even just verbal resistance. C. Mistake of Fact. A reasonable mistake about consent is a defense, but an unreasonable mistake is not. PROPERTY OFFENSES A. Larceny. 1. Definition: Trespassory taking and carrying away of the personal property of another with intent to steal it. 2. Elements: i. Trespass: Wrongful. ii. Taking: Interference with possessory rights, not ownership rights. One can have custody but not possession. iii. Carrying away: At common law, if carrying something away even one inch, the carrying away element is met. iv. Personal property: Real property can become personal property. v. Of another: One can steal property if one owns it but another has sole possession of it. vi. With intent to steal (this is a specific intent crime). At common law, defendant must intend to permanently deprive the other person of the property. If defendant intends to return it but later decides to keep it, the law generally considers this to be a new trespassory taking, under the continuing trespass doctrine. 3. Larceny by Trick. When a person misrepresents his motives to get possession of the property of another, all the while intending to fraudulently convert the property, and later he does convert the property, he is guilty of larceny by trick. Embezzlement. A person who obtains lawful possession of personal property of another, entrusted to that individual, who then converts the property to his own use is guilty of embezzlement.



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False Pretenses. The only one of these offenses which actually entails the transfer of title, as opposed to just possession. Here, the person who owns the property gives the defendant both possession and title to the property, based on the defendants misrepresentations. VII. INCHOATE OFFENSES Incomplete/unsuccessful offenses: Attempt, Solicitation, and Conspiracy. A. Attempt. 1. Mens Rea. Must have specific intent to commit the target offense. 2. Actus Reus: How Far Must Actor Go? a. Different tests at common law. 1) Physical proximity test. Actor must have apparent power to complete the crime immediately. 2) Dangerous proximity test. Consider how close actor physically is to committing the crime, how close actor is temporally, and how serious the crime is. The more serious the crime, the less physically and temporally close actor has to be. 3) Equivocality. Looking at actors conduct alone, at what point can you unequivocally tell what he is about to do? 4) Probable desistance test. When would a normal citizen think better of his actions and desist? When has an ordinary person gone to the point of no return? b. Model Penal Code. An actor is guilty of attempt, with mens rea, if she takes a substantial step in direction of committing the crime. 3. Special Defenses (Normal Defenses Also Apply). a. Impossibility. 1) Factual vs. legal impossibility. 2) At common law, legal impossibility is a defense, factual is not a defense. 3) Today, many states and the Model Penal Code have abolished this defense in its entirety. b. Abandonment/renunciation. 1) Not a common law defense. 2) If actor crosses the line of attempt, but has not yet been arrested, if he then voluntarily and totally abandons any criminal intent, then he has a defense. B. Criminal Solicitation. If an actor requests, encourages, or asks another to commit a crime with the intention of getting that person to commit the crime, he is guilty of solicitation the moment he makes the request. C. Conspiracy. 1. Common Law.


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a. b.

An agreement between two or more persons to commit an unlawful act.


Plurality requirement: Two or more persons must have the requisite mens rea (e.g., if one of the two is really an undercover officer feigning agreement, no conspiracy). c. Requires a specific intent on part of both persons to commit the crime. d. The moment there is a meeting of the minds, the common law crime of conspiracy has occurred. 2. Modern Jurisdictions. Many states and the Model Penal Code require an overt act towards committing the crime, although it does not have to be enough of an act to raise it to an attempt level. 3. Whartons Rule. There can be no conspiracy if the underlying crime by definition requires two or more people (e.g. selling drugs). Complicity. Under some circumstances, an actor is accountable for the actions of another because of a connection to the crime. 1. Accomplice Liability. Complicity normally comes up as an issue of accomplice liability. There is no crime of aiding and abetting, so the law makes an accomplice liable for the crimes of the perpetrator. 2. Requirements. a. Accomplices. 1) Principal in the first degree is the perpetrator of the crime. 2) Principal in the second degree (also accessory at the fact) assists in the crime and is at the scene, but does not actually commit the crime. 3) Accessory before the fact assists in the crime, but is not at the scene of the crime. b. Actus reus. 1) The actor solicits another to commit a crime, encourages another to commit a crime, or provides services or instrumentality used in offense, etc. 2) An actor can be an accomplice even if it is shown that the perpetrator would have committed the crime without his help. c. Mens rea. 1) Two states of mind required: i. Intent to do acts that constitute the assistance. ii. The purpose of assisting in the crime. However, with crimes of recklessness or negligence, most courts and the Model Penal Code say can be convicted of unintended crime, if have same mens rea as required in the definition of the offense.

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Natural and probable consequences doctrine: An accomplice in one crime guilty of other crimes committed by perpetrator if the latter crimes are foreseeable. Defense to Accomplice Liability. a. An actor cannot be an accomplice if there is no crime to derive from. b. An actor cannot be an accomplice if the principal has a valid justification defense. c. However, an actor may be an accomplice if the principal has a valid excuse defense.


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