Criminal Up To Week 11

IN CLASS NOTES
Wednesday, February 23, 2011 12:14 PM
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January 26th, Week 4

Wednesday, January 19, 2011 7:18 PM
Exam scores will be back by the end of the week. They are posted through exam idea number through the portal.. Probably by Friday or Monday For the midterm we will go over questions after class in week seven. Bring number 2 pencils and photo id. It will be on material through week 1-5. Do not put yourself through misery that you do not have to put yourself through, by talking about it. UNINTENTIONAL HOMOCIDES Remember depraved heart and involuntary manslaughter have a lot in common. The way they differ is the degree of risk. For involuntary manslaughter the defendant must fail to be aware instead of being aware and not caring about the risk. WE always need to look at the totality of the circumstances to figure that out. Most jurisdictions sign onto the rule that the felony has to be independent of the homicide. You can kill someone without killing them, and you can rape someone without killing them The minority is that any felony will do. Looked at both the agency approach and the proximate approach. Michigan Aaron rule-- prove actual malice. Designed to protect the defendants who have very limited involvement in the crime. There is an issue that shows up in the felony murder rule about when are we in the commission in the robbery. Hypo- if a person robs a bank gets in a car and is driving away at 30 mph and hits and kills a pedestrian is that still in commission of that crime? -- The RES GESTAE - The place of safety rule. The felony continues until the defendant believes he has reached a point of safety. What do we need to know before we can decide if that person is still in commission why is he driving 5 miles over. Look at the facts.. High speed car chase--bank robbery is still on going.. We look at what the defendant thinks If the defendant thinks I have not reached a point of safety then I am still guilty of felony murder.. ____PG 968 2:02 Subsection 2 A-D All of them refer to mens rea. How do you spot a Mens Rea? We are looking for adverbs when we look for mens rea.
MPC PURPOSEFULLY A person acts purposely with respect to a material element of an offence when: If the element involves the nature of his conduct or a result thereof , it is his conscious object to engage in conduct of that nature or to cause such a result, AND If the element involves the attendant circumstances he is aware of the existence of such circumstances or he believes or hopes that they exist. He wants it to happen its more than depraved heart. MPC KNOWINGLY A person acts knowingly with respect to a material element of an offense when: i. if the element involves the nature of his conduct or the attendant circumstances, he is aware that his conduct is of that nature or that such circumstances exist; and ii if the element involves a result of his conduct, he is aware that it is practically certain that his conduct will cause such a result. Difference is with purposely someone knows and wants it to happen, knowingly he
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Difference is with purposely someone knows and wants it to happen, knowingly he knows the risk but does not necessarily want it. MPC recklessly. The risk must be of a nature and degree that his disregard involves a gross deviation from the standard of conduct that a law-abiding person would observe in the actor's situation. MPC NEGLIGENTLY - he should be aware of a substantial and unjustifiable risk This are the four mens rea in the model penal code basically every crime under the statutes has one of these four mental states. There will not be the words malice or abandoned and depraved hearts. Put words in action. The MPC is listed on pg. 999-1000 MUDER< Manslaughter etc . MPC MURDER Purposefully: or Knowingly: or Recklessly under circumstances manifesting extreme indifference to the value of human life. First word to look at is Recklessly- and we can look that up at the def. section. Its everything in the def. plus the circumstances manifesting extreme indifference to the value of human life. It basically gives it a context and increases the risk. You need off the risk plus the circumstances.. 210.02 1b (looks like the common law felony murder) this language is not the identical This is not saying that if you are committing a felony it is conclusive.. It is using the word presumed can mean that you assume. Can you change someone's assumption? Yes. At common law there was no opportunity to present evidence.. Here you can offer rebuttal evidence. MPC Manslaughter Recklessly: or Mitigated murder. What is the difference between the recklessness here and in the MPC murder? Here there is no addition for the extreme indifference to the value of human life. So ordinary recklessness equals manslaughter. Mitigated- under reasonable circumstances looks the idea of murder to voluntary manslaughter Extreme mental or emotional disturbance could include everything, for which there is reasonable or emotional excuse.. The model penal code makes the category broader than in the common law explanation. IT is going to be viewed on a subjective basis instead of the common law basis of objectivity. This is however not a purely subjective- because of the need for a reasonable explanation. MPC : Negligent Homicide The Mens Rea is Negligence-- and we can determine that by going back to the definition section. (statute provides us with meaning unlike the common law) This def. looks a lot like gross criminal neg. like we seen in common law but no where with in is the word neg. /manslaughter. Statute has no degrees. __________________________________________________________________________________
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with in is the word neg. /manslaughter. Statute has no degrees. __________________________________________________________________________________

___________________________________ Common Law PA "Degrees of Murder" Penal Code Murder Murder 1. Intent to kill Committed purposefully 2. Intent to cause GBH knowingly, or recklessly 3. Depraved heart circumstance 4. Felony Murder manifesting extreme indifference to the value of human life, such recklessness is presumed when defendant commits felony Murder , First Degree "Poison, lying in wait, or any other kind of willful, premeditated, and deliberate killing Or Felony Murder under Model
Manslaughter Manslaughter 1. Voluntary recklessly or is murder 2. Involuntary mental or emotional 3. Misdemeanor Mans. Disturbance
Second degree "All other kinds of murder" ** no changes To CL manslaughter Committed w/an extreme
Negligent Homicide committed negligently _________________________________________________________________________________________ _______________________ When on an exam she will tell us what law to apply. If it does not say it you apply the
common law because it is the default. SEXUAL OFFENSES Any other kind of offense was not rape if it was not carnal knowledge of a women. Rape could not be man or a young boy. In common law there was a marriage defense anything could be done to the wife and there was no rape. In some way the victim must exhibit her lack of consent.. The force requirement meant that the defendant had to use some level of force above and beyond the penetration.. The way this was seen was through the victims resistance.. And this only excused through threat of death or bodily injury. If the woman just said no but did not resist it did not mean rape in
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death or bodily injury. If the woman just said no but did not resist it did not mean rape in common law. If through fear the woman did not say know but resisted it would still not be considered a rape. Common law statutory rape was sex with a child- said due to age the child was incapable of giving consent. IF she is testing on age of consent.. She will either be obvious or it will be given. Def. Carnell knowledge of a woman forcibly and against her will What is problematic ? It is limiting and it does not protect male victims. It looks at the victims behavior other than the defendants. Does the common law notion of use of force have the same meaning as we think about now.. It doesnt talk about incapacitation of the victim.. You cant convict the woman And the absolute defense of marriage. CASE ONE : State v. Alston Relationship is abusive and she states that she often had sex with the defendant to just accommodate him. At some point in time Ms. Brown decides to end the relationship.. She moves in with her mother.. The morning of June 15th she is going to attend class and Mr. Alston is there.. Mr. Alston blocks her entry to the door, grabs her arm and forces her to go with him. The court is telling us that the is going to fix her face to show her mother that he is serious. His hand is not on her arm the whole time.. The court is suggesting that she consenting to the walk. We learn that at some points she is sometimes she is In front of him court inferring that she could get away and there were other people around and the court is suggesting that she didnt seem to ask other people for help. Eventually the end at the house of Lawrence Taylor.. She is siting and they are in the back of the house talking. We are told that she did not try to push him away or indicate her lack of consent. Ms. Brown makes a complaint to the police and he shows up at her house and threatened to kick down the door. Looking at the law of the case. It is very similar to the common law still it is still vaginal intercourse and by force. We do not have to argue that there was intercourse. There is a lack of consent.. Because she did tell him that she did not want to have sex with him. The court does not think that Ms. Brown resisted because there was no force. The threat to fix her face was not linked in time to sexual intercourse it was not related close enough in time. The court says that she did not even try.. Or make any attempt to leave etc. What does that mean for fear: She was probably afraid because it has to be manifested fear fear is a subjective emotion.. The court says they need to see something from the victims. Force goes above and beyond a non consensual sexual act. What is relevant and what is not relevant is a difficult question. RUSK V. STATE 21 yr. old mother who goes out bar hopping after a high school reunion. She goes to the final one and Mr. rusk asks the defendant for a ride. She takes him to his place.. She pulls up stays in the car, says no she does not want to go up. Mr. Rusk takes the keys out of the ignition.. Why did the court give us that quote? The court thinks her state of mind is important, but it is more because she knew there were options that she did not take. She goes up to his apartment. He lives in a room.. He leaves her alone in the room for a point .. There is a telephone in the room but she doesnt notice it at the time. She is begging him to
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There is a telephone in the room but she doesnt notice it at the time. She is begging him to let her leave and not kill her. She starts to cry and he started to lightly choke her Why did she think he was going to kill her? She says the look in his eyes We are told that she gets dressed and she sits in the car and she is thinking about what would have happened if she had done things differently. She thought it was time to report it to the police. The courts says that if she had to think about it then how can she prove she was really afraid. Maryland sounds like carnal law force or fear there is no question about whether there was intercourse or lack of consent. The question is the lack of force the prosecutor takes the keys from her and she is afraid.. And she said if I do what you want will not kill me. The prosecutor can say that she was facing the threats about resistance. The defense- is there was no weapon.. There was no threat and the look in his eyes was subjective. It is not evidence there needs to be something concrete. THE ROLE OF FEAR MUST BE SEEN THE FEAR THAT PARALYZED YOU IS NOT ENOUGH it imposes a single type of requirement for physical and the reasonable man requirement.. The idea is that fear is an object of emotion.. What about the light choking- the court does not see it as important because you can have that in consensual sexual activity. The court is basically saying this is not rape because we do not have resistance. Judge Wilner dissenting: The victim at a reasonable apprehension of fear it is equal to resistant. He is basically pointing out that we are focusing on the wrong person. The court is not looking at the right person. The case comes to appeal. Right under the law at the time! But that is not the way we want the law to really work. CASE : Berkowitz The victim is friends with the roommate to Berkowitz.. Earl. There is a history, they had a phone conversation 2 weeks earlier after attending a school seminar "does no sometimes mean yes" in the phone conversation she asks him about the size of his penis, he says why dont you come over and find out. There is a history of her coming over to the room intoxicated and would lay down on the bed. There is some further interactions between the two of them. On the day in question.. She gets out of class and has a martini, goes to the place she is suppose to meet him, so she goes to find her friend earl. She knocks leaves a note, try's the knob and Mr. Berkowitz is there. Actions lead to penetration and she says no, and he says I guess we got carried away and she says no I you did (he pushed her down, fondled her, and tried to make her do oral sex on him prior) This falls under the umbrella acquaintance rape.
The statute in Pen. At the time is as follows: A person commits a felony of the first degree when he engages in sexual intercourse with another person not his spouse: 1. by forcible compulsion 2. by threat of forcible compulsion that would prevent resistance by a person of reasonable resolution Who is unconscious: or Who is so mentally deranged or deficient that such person is incapable of consent.
Same as common law: Intercourse - not a wide variety Marital exclusion Limiting to victims Commonwealth interpretation of forcible compulsion
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Commonwealth interpretation of forcible compulsion Means what it mean physical force as in common law but It also includes psychological force etc. They also say look at the totality of the circumstances The sex act is enough force without consent. Argument by defense It should be above and beyond lack of consent If the court excepts the common wealth story they win.. The defense is saying if the legislators wanted commonwealth meaning they would have said that. The court - the court agrees with the defense. They say legislature is signaling that it goes beyond the lack of consent. They are not saying it goes back to common law but they do want some form of resistance on some level, beyond simple non consent. Case: MTS Young girl lives with mother and 10 other people. Her story just does not add up. She falls asleep, and she doesnt notice that someone is in bed with her. His story - living there with his girlfriend, but goes with this girl. The court doesnt believe either one of them. MTS is charged with sexual assault. NJS 2c 14-2c(1) An actor is guilty of sexual assault if he commits an act of sexual penetration with another person under any of the following circumstances: 1. The actor uses physical force or coercion, but the victim does not sustain severe personal injury COMMON LAW DIFFERENCES -No marital exemption - Sexual penetration - Physical force or coercion DEFENSE ARGUMENT; - We need sexual penetration - Lack of consent - And something else on top of that State Argument: - Lack of consent with penetration is enough. Same arguments identified in the Berkowitz case. This court says that penetration with lack of affirmative consent is enough. The New Jersey Court is looking at the actions of the defendant. HOW DO YOU GET AFFIRMATIVE CONSENT IN NEW JERSEY? Reasonable person would have believed that the alleged victim had affirmatively and freely given authorization to the act. Problem is that the common law goes to far to one extreme and this statute goes to the other extreme. Both courts are struggling with different arguments.. Its not protecting both people equally _________________________________________________________________________ ______________________
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MICHIGAN CSC STATUTE - Very particular about age requirements - Starts with a def. section. - Punishes two main types of behavior.. Sexual penetration and Sexual Conduct.
Sexual contact- includes the intentional touching of the victim's or actors' intimate parts or intentional touching of the clothing covering the immediate area of the victim's or actor's intimate parts, if that intentional touching can reasonably be construed as being for the purpose of sexual arousal or gratification done for a sexual purpose or in a sexual manner for : 1. revenge 2. To inflict humiliation 3. Out of anger . r. Sexual penetration means sexual intercourse, cunnilingus, fellatio, anal intercourse or any other intrusion however slight of any part of a persons body or of any object into the genital or anal openings of another person's body, bu emission of semen is not required s. "Victim" means the person alleging to have been subjected to criminal sexual conduct. 1 and 3 degrees involve acts of penetration And 2 and 4th involves age.. The difference is aggravation Aggravation c. Sexual penetration occurs under circumstances involving the commission of any other felony. Etc. REFER TO STATUTE The statute when referring to personal injury other than sexual contact found in def. section. (disfigurement, mental anguish, chronic pain, pregnancy, disease or loss or impairment of a sexual or reproductive organ.) where do these fall, what do all of these things have in common? They are permanent.. They are a lasting affect. What elevates a 4th degree to 2nd degree.. Same! _________________________________________________________________________ _________________ Swedlow will post a handout .. Try to decide how you would charge the defendants.. 1. Look for contact or penetration 2. Aggravation (presence or absence) Where do the kids come in? the ages differ based on degree. Very young age or an abuse of authority and trust
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Notes Week 5 (Make up)

Friday, February 04, 2011 9:02 AM
Notes We...
Notes We...
Inserted from: <file://C:\Users\crawforde\Documents\weekfivememo.doc> Audio recording started: 9:02 AM Friday, February 04, 2011
B- is a crime against the right of habitation. What was going on during the common law looking at a time when people are going to face people making attacks Breaking- created a breach or opening Entering - to enter into the dwelling house through that breach or opening, the breaking and entering has to be causally linked. Into the dwelling house of another- place where people live or have lived.. It is not new construction. Once someone has lived inside the dwelling house it becomes a dwelling house A person does not have to be present for the breaking to occur. At night- Not sufficient light in the sky by which to see the defendant. Generally falls when dawn and dusk but does not have to. With intent to commit a felony therein- there has to be a intent to commit a felony must drive the breaking and entering. Actus reus- is breaking and entering The Mens Rea- 1. the intent to break and enter 2. the intent to commit the felony. LOOK AT THE curtilage? Look at all of the facts Sufficiently interfering? Defendant did not need to turn his house into a fortress as long as the
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Defendant did not need to turn his house into a fortress as long as the breaches are closed. = what if Plaintiff opens the door because the defendant tricked her into it.. Do we have a breaking? IT is what we call a constructive breaking.. It is as if they did it themselves..
1. In English common law if the window was open and the defendant comes
and enlarges a pre-existing open.. Then it is not a breaking because they did not create the breach. 2. American common law- enlargement of a pre-existing breach is a breaking. (bar exam rule)
How does burglary get tested on? - Drop out an element (restaurant not a dwelling house) - Leave out a mens rea (create the mens rea after the defendant enters the house. ) (this is a common law crime not the modern law modern law would be modified to include day time and other structures) Unless she give s a statute we use common law.
At common law it was made at night because it was to protect the right of a peaceful night.. During the day they had the right to protect themselves.. The rule of the common law was that it was not a dwelling house until someone has slept there for one night. (model home question would a good essay question.. How far can the dwelling house be extended) A cardboard box and a homeless person it could be stretched to include since the homeless person has slept there. Common law said that is property was abandoned it no longer had the right to be a dwelling house. Burglary is a crime against the right to habitat freely. In a hotel the room itself becomes a dwelling house not a lobby. - If a building used for business purposes and sleeping it would still be a dwelling house. - The felony can be anything.. I.e. Rape COMMON LAW ARSON- Malicious burning of the dwelling house of another. The mens rea - malice , it is the same word we use to describe common law murder. WE must further define the word. Actus Reus is the burning.. Malice can mean 1. Intent to burn (pretty easy to spot) 2. Or a reckless disregard for a high risk of burning. Actions on the part of the defendant that show high risk of burning and he shows a reckless disregard for that. Park ranger burning love letters (dry area ) may fit as an example. -- Favorite example of Swedlow: Cousins hooked up the sprinkle r system to the gas line the entire house burnt down there was a reckless disregard but not intent.. Would fit.. (ignore age) - She has an accelerant and a match that is not enough. Ask yourself what is the proximity of the dwelling house. - Burning meant actual fire damage or charring of a permanent part of the
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- Burning meant actual fire damage or charring of a permanent part of the
dwelling house.. Curtains do not count arson- there is actual burning but of a non permanent part of the house. Nor a couch. - permanent part would be not easily removed.. (something that would require physical labor to remove would count as permanent) Dwelling house of another is the same def. as the common law burglary.. A place where people live or have lived and buildings included in the curtilage.. (a person burns down his own home that would not be considered arson. What do you want to look for? Burning leaves in the back yard neighbors house catches on fire.. : Look at how close. (no intent to burn, but there is a reckless disregard) If the fact pattern does not include things you cannot read them in.. You must assume normal conditions. Common law arson is different then the modern arson definition (most obvious def. change includes all.. Not just dwelling house of another) etc. Common law did not have a lot of answers.. (your 12 your married your out there was not any answers) if there is no obvious answer not a good multiple choice question.. For an essay argue both sides if the question is on clear. Can you expect mixed crimes = yes but MPC will not be mixed with common law. One of the things that need to be realized many of the common law crimes are incredibly stable over time others are a little less stable i.e. Rape and other crimes do not play well over time like burglary and arson etc. Forest fire for common law we need to know proximity and we need to meet the burning requirement regardless of the mens rea. IF the fire stops before it burns or chars the house then there is no arson. Intently sets fire to brush 20 feet from house there is the mens rea but if the fire does not get to the house then there is not actus reus. In common law it is primarily about possession because the king owns everything. (not talking about proximate cause the way it is in torts it should be thinking about depraved heart murder) Looking at risky behavior and the attitude against the behavior.. How risky ? And what is his attitude regarding that behavior.. Def. who sets a fire 40 miles away does not meet the reckless behavior standard Common Law Battery: - Unlawful use of force resulting in harmful or offensive contact. Mens Rea- 1. Intends to cause harmful or offensive contact 2. the defendant is engaged in a unlawful act that causes a harmful or offensive contact 3. A negligence that causes harmful or offensive contact. They do not need to be extremely felonious 5 miles over the speed limit hit a pedestrian = Battery. (plastic surgeries show) what do they do when they do the plastic surgery.. They draw all over the person.. (top to bottom) They have a white board to list all of the surgeries and mark them off. They want to do the right things Imagine you go in for plastic surgery and you come out with the wrong surgery doctor did not intent to give you harmful contact but he was negligent you do not need all three you just need one or the other
need all three you just need one or the other
What does it mean to have harmful or offensive contact: Goes back to the objective reasonable man standard? WE consent to a certain amount of battery: i.e. the packed elevator at cooley law school.. We are talking about something above and beyond what we would normally consent too. Example- Football might be something more than the average person would consent to does not mean that you consent to all harmful or offensive contact. (Link to football case in the torts Case)
COMMON LAW ASSAULT: An attempted but unsuccessful battery 1. Where the defendant attempts to batter his victim and fails 2. Where the defendant attempts to create an imminent fear and apprehension in his victim The attempted but failed battery the victim does not need to be aware of the attempted battery. ON the other hand if you are attempting to create fear or apprehension the victim must be aware if victim can not see no way to intent MUST BE IMMIMENT.
MENS REA: The desire / want/ need to batter another person for 2nd type- intent to create imminent fear or apprehension Does it include everyone or just the one victim- Only the person that is intended is the victim not the entire room. Must look at what the actions are to find the actus reus
TORT- awareness CRIMINAL LAW- does not need to be aware the awareness is not the question the question is am I dangerous. WOULD A REAONSABLE MAN FEEL FEAR OR APPREHENSON? There must be a target What is the degree of contact. ASSAULT CAN MERGE INTO THE BATTERY.. ONCE THE BATTERY BECOMES SUCCESSFUL THEN IT MERGES INTO THE BATTERY In the media when someone is charged with assault and battery it is the modern statute. Ex. Pennsylvania.. There is no battery there are two types of assaultJurisdictions can call a crime whatever they want to call it. Remember we are talking about the common law. THE MERGER DOCTRINE IS NOT JUST FOR FELONY MURDER BUT FOR ASSUALT AND BATTERY - What is the time line there must be a causal connection COMMON LAW KIDNAPPING: Forcible movement or secret confinement of the victim without lawful authority and against the victim's will. Kidnapping changed rapidly over time in common law this definition is the American common law definition This is an "or" construction 1. Without lawful authority (excludes parents, and police etc.
1. Without lawful authority (excludes parents, and police etc. The victim must manifest some type of lack of consent. If the movement of the victim is merely incidental (it is for another purpose for the sake of committing another crime)
Arizona- Defendant convinces son to break him out of prison Dad made promise that no one would get hurt. A victim stops to help the son is sent away victim is taken and killed where the son will not see.. This is just murder because the movement was for the purpose of killing the victim.. In a multiple choice question it must be kind of obvious Kidnapping does not merge to homicide because kidnapping is not an important part of kidnapping. Audio recording started: 10:01 AM Friday, February 04, 2011
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DID MULTIPLE CHOICE Questions FROM BARBRI

1. 2.
Go to the call of the question the call of the question alone does not always put in the right frame of mind (swedlow does not agree with going to the picks.. Often for her class you need t o know the facts before you start eliminating choices - for her class go right to the fact pattern.
The answer is number 1 the call of the question and sometimes the best answer is not the one that will win a hundred present of the time but the best one from the choices.
Week 6
Week 6
Week 6
Audio recording started: 4:29 PM Wednesday, February 09, 2011
Audio recording started: 3:06 PM Wednesday, February 09, 2011 A trespassory taking means to dispossess unlawfully. Carrying away- means the defendant needs to move the property in some direction no matter how slight. Accidental or incidental movement Is not sufficient. A crime against your right to possess personal property.. (anything but real estate) .. - The idea that the defendant needed to have the mens rea - the intent to permanently deprive the defendant at the time of the taking. At what time is the larceny is complete: the second it has been accomplished.. But reasonably you would have a hard time proving the larceny.. Rex v. Chisser
1678- Rex goes into shop looks at ties. The merchant hands them to him to inspect and
he runs out of the shop. Is this larceny? Problem in this case would be the trespassory taking- if he is holding in his hands did he truly disposess. A legal fiction of constructive possession? - and retains constructive possession she retains the whole time? She is handing him custody.. A restricted form of ownership Guilty of larceny why? How do you tell the difference between the possession and custodyThe restrictions that are placed on the use. Custody is the most restrictive form of property and property use. United States V. Mafnas - Works for an armored car service - on three separate occasions he skimmed money off out of the tops of the bags. - He argues that he is in lawful possession of the bags - Court introduced the new legal fiction- "breaks Bulk" Still a twist to it basically the baillor is giving possession in terms of the bag but not in terms of the contents.. That is only custody.. Once the bailee opens the bag
but not in terms of the contents.. That is only custody.. Once the bailee opens the bag and interferes with the contents he is transferring his custody right into unlawful possession. TOPOLEWSKI V. State - Mr. Dolan owes mr. Topoleswski some money. He works at a meat company.. He makes arrangements to put some meat on the dock and his debt will be settled. Dolan goes to the company and tells them - Plan is to run in entrapment.. And dolan is fired but the supervisor is still attempts to catch him. - The company consented and there was no trespassory taking.. The company gave consent.. Big flaw in larceny law REX V. PEAR - Prisoner rented a horse for a specific purpose.. He was going to permanently deprive without telling owner.. - How is this different from topolewski? - Everyone knew that he that topolewski was coming but in this case it was by trick. It is a variation of larceny.. Larceny by trick - identical definition difference is that in a larceny by trick the property is taken by trick and it appears to be consensual but it is not. If the defendant gives some sort of lie but does not have the intent to permanently deprive. MUST ASK QUESTIONS LAWFUL or UNLAWFUL INTENT TO PERMANTLY DEPRIVE AT THE TIME OF THE ACTUAL TAKING OF THE PROPERTY. Brooks V. State: - Lost property.. Defendant brooks found 200 dollars.. He was working.. Finds money about 5 to 6 feet away and he is with a few people. He attempts to hide the money.. And he plays a game with 1 dollar of the money. - When he was done working that day he spend the money on various items. - Is this larceny? That is what it boils down too what instruction does the court gives us on how to solve this problem. - The finder is bound to use due diligence to find the owner what is important is the amount of money that was loss and the date (200 dollars now would be nearly 5000) We want to be able to obtain the possessory interest of the property And two look at the defendants state of mind visa vie the property That boils down to what is the property itself. Common law idea is that every piece of property has a title owner
Week Seven notes

Week 7
Audio recording started: 2:01 PM Wednesday, February 16, 2011
Mean for class was 13.5 .. If you are about 13 you are right where you should be. - Left off at larceny. - Saw that common law larceny does not apply to situations where one person tricks another person out of the property and then they created larceny by trick. And there was the crime of larceny by continuous trespass.. - Each new moment is a new moment of trespassory taking. WE left off at the issue of lost property. Look at the possessory interest of the owner at the time the property was found. And the finders state of mind when he finds the property. You have to look at all the facts and circumstances .. The common law thought that all property was owned by someone.. Unless someone abandoned that property. What do you look at what constitutes crimeThe value of the property on its face..- if it is more valuable the more likely it is that no one abandoned it. Meaning that there is a title holder for that piece of property. Look at the area and the circumstances in which it was found.. Does it look like its been in a snow bank all winter or is it freshly lost.. Is there someone near by looking for a piece of property.
AT midway through the term how many of you are creating your own outlines-- Caveat - she gave a question where one guy shoots the other guy in the head.. If you think about that it is kind of easy was he guilty of common law murder what she got from a lot of students was that common law murder was the intentional killing with malice or forethought.. Intentional killing is a type of malice and forethought. she received several of these exams it is partially correct but also incorrect. There is an error in the SBA OUTLINE>> it is a wonderful organization.. But do not rely on the SBA outline. BE WARE LarcenyCriminal One Page 16
Larceny_____________________________________________________ ____________
People V. Brown
Brief Fact Summary: Appellant was convicted of larceny after he entered an acquaintances house and took a bicycle. Appellant claims he did not intend to keep the bicycle, and therefore, he is not guilty of larceny. Synopsis of Rule of Law: In order to be found guilty of larceny, an accused must have intended to permanently deprive the owner of his property. Facts. Appellant Brown was a seventeen-year-old boy convicted of larceny. He entered an acquaintances house and took a bicycle. Brown stated he took the property to get even with a boy for throwing oranges at him. He also testified he did not intend to keep the bicycle, but rather intended to take it back on a Sunday. The trial court instructed the jury that with regard to larceny, the taking must be made with the intent to deprive the owner of the property. In addition, the court told the jury that the taker did not have to intend to deprive the owner permanently. An example was given in which a man takes a horse (not with the intent to convert it to his permanent use), rides it to a certain distance, and then leaves it. The issue on appeal is whether the courts instructions were erroneous. Issue: Were the judges instructions erroneous when he told the jury an individual can be found guilty of larceny if he intends to temporarily deprive the owner of his property? Held: Yes. The order is reversed and the cause remanded for a new trial. If the boys story is true, then he is not guilty of larceny for taking the bicycle. However, under the courts instruction, his very testimony convicted him. The court told the jury that larceny can be committed where a partys intention was to temporarily deprive the owner of his property. The instruction concerning the man taking the horse is too broad in its terms as stating a correct principle of law. Whether this fictitious person is guilty of larceny is a question of fact for the jury. If an individual does not intend to permanently deprive an owner of his property, his acts constitute a trespass. We think past authorities have established the bright line rule that an accused must have intended to permanently deprive the owner of his property in order to sustain a conviction for larceny.
Discussion. The felonious intent of the party accused of larceny must be to permanently deprive the owner of his property, but there does not need to be an intention to convert the property to his own use. Why is it that we belief him? How do we know what the defendant is thinking? - There has to be more than the duration of time of when the property is in the defendants hands. - The circumstances are important.. In this case he was living with the people and he had a previous relationship with the boy - Why do you belief him: Weak hiding place ( stupid criminal), he was caught while trying to give back the bike. - How important is it that he is 17? Why does it matter? The lack of judgment.. This is the kind of thing that kids do. He threw oranges at me so im taking his bike from him. The case looks kind of easy. But number 1. you have to have that intent to permanently deprive 2 and the facts and circumstances must fit. _____________________________________________________ ____________
People v. Davis
Brief Fact Summary: The Defendant, Davis (Defendant), was charged with the crime of petty theft (larceny) in connection with his attempt to take a shirt from a Mervyns' department store and return it as his own to that same store.
Synopsis of Rule of Law: The general rule is that the intent to steal required for larceny is an intent to deprive the owner permanently of possession of property. However, larceny may still be found, absent intent to permanently deprive, when: (1) the defendant intends to sell the property back to its owner; (2) the defendant intends to claim a reward for finding the property and (3) the defendant intends to return the property to its owner for a refund.
Facts: The Defendant entered the Mervyns' department store carrying a Mervyns' shopping bag. As he entered the store a security agent placed him under camera surveillance. The Defendant went to the mens department and took a shirt from its hanger. The Defendant then went to the womens department and attempted to return the shirt, claiming that it was a gift for his father and that it did not fit properly. The Defendant told the cashier that because the shirt was a gift, he did not have a receipt. The security agent telephoned the cashier and told her to issue a store voucher. The cashier prepared the voucher and the Defendant
store voucher. The cashier prepared the voucher and the Defendant signed it under a false name. As the Defendant walked away from the counter, the security agent detained him. Issue: Can the Defendant be found guilty of larceny when he did not expressly intend to permanently deprive the property owner of possession because he intended to return the property for a refund?
Held: The Defendants intent to claim ownership of the shirt and to return it to Mervyns' only on condition that the store pay him a refund constitutes an intent to permanently deprive Mervyns' of the shirt within the meaning of the law of larceny and hence an intent to feloniously steal within the penal code. As a result, the Court of Appeals was correct to affirm the judgment of conviction made in the lower court. Discussion: The court bases its decision upon suspect rationale. The court noted that, as a practical matter, there is a risk that a taking, such as occurred in this case, will become permanent. This is so because if the transaction to obtain a refund for the return of merchandise fails, the taker will be more inclined to keep the property permanently rather than try again and possibly, draw attention to his activities. This rationale provided by the court is quite attenuated. In fact, even the court admits that this case can be seen as an attempt to connect the sufficient policy that had existed for the result with ample and correct legal rationale consistent with the basic principles of the law of larceny.
Security told the cashier to play along and give him the voucher.. She gets the voucher and he uses a false name. Is he guilty of the larceny? If you hold it to original law.. He did not leave the store with the merchandise and 2. he was given the consent from the owner. The common law did not anticipate the issue at hand. The man comes up with an argument regarding his two acts.. He was not intending to deprive Mervyns of the shirt because he was intending to return it and they knew what he was doing and could not be held guilty.
The court rejects his argument basically saying they separate the cases into three main categories. Sales, rewards and refunds.. All variations on the same theme that a customer comes in with a scheme to get value from a store. IN all three of the situations they had developed a way to deal. Theft by larceny 1. Take possession 2. personal property 3. owned or possess by another 4. by means of trespass and 5. with intent to steal the property and 6. carries away the property.
How is this different that have split the elements differently. The
How is this different that have split the elements differently. The court comes up with a conclusion that he is guilty but how? - They talk about how he lied .. The defendant left with two options put the shirt back or 2. leave with the shirt the court basis it on the idea that he will take the shirt. Looking at the actions on its face.. If you look at part three of the opinion on page 940.. "We conclude that defendants intent to claim ownership of the shirt and to return it to Mervyns only on condition that the store pay him a refund. . The court continues to say that the store did not consent to have him take it away. - The court is manipulating the common law. IF the facts change and he walks out with the shirt.. It becomes a trespassory taking when he leaves the property. If he puts it in the bag it could be on the edge.. Is it a larceny by trick? No because he did not trick anyone.. It means you rely on what the defendant had actually done. The court wants to make it better apply to modern retail situations. __________________________________________________ _______
Rex v. Bazeley
Brief Fact Summary. This is an action against the Defendant Bazeley (Defendant), for larceny, breach of trust and embezzlement arising from the Defendants taking of money in connection with his employment as a bank teller.
Synopsis of Rule of Law. For a charge of embezzlement to stand, there must be an element of entrustment, to an individual in the course of employment, of property held in trust for the entrustor. Moreover, there must be subsequent conversion of that property by the individual embezzler that implicates a breach of that trust between the parties. Facts. The Defendant was the principal teller at a bank run by Prosecutors Esdaile and Hammett. The Defendants job involved the receipt and payment of money, notes and bills at the bank counter. In January 1799, the Defendant, in his capacity as principal teller, received bank-notes and cash for deposit from William Gilbert (Gilbert), through his servant George Cock (Cock). The Defendant credited Gilberts account, but placed a bank-note in his pocket, which he later used for his own purposes.
Issue. Can a felonious action be found where a defendant converts property that was meant for his employer, but was never in the actual or constructive possession of that employer?
Held. The court found that the Defendant was guilty of neither
Held. The court found that the Defendant was guilty of neither larceny nor felonious breach of trust. However, the court noted that a statute had been created to deal with precisely the situation involved in this case. The court found that the Defendant could be subject to this embezzlement statute because the Defendants actions were precisely those that the statute sought to prevent. Discussion. The court looked at they type of job function that the Defendant performed. The court noted that the statute that was recently enacted was designed to prevent employees in delicate trust situations from misappropriating property that was designed to come into the legal possession of the employer. As a result, although there was no constructive or actual possession of the bank-note by the bank, the fact that the Defendant brought the property in question into his possession is all that is necessary to find embezzlement under the statute. The notes in Dressler support this proposition. Dressler notes that for an embezzlement charge to stand there must be an element of entrustment. In the Bazeley case, the bank entrusted the Defendant with property that was destined, eventually for it. Since the Defendant was entrusted with the delicate matter of collecting property bound for the employer, embezzlement can be found. - Mr. Bazeley takes the money and puts it directly in his pocket.. - The customer is not handing the bank teller title.. .. They are handing not custody because they can do some of what they want with it. You are handing them possession. All you are saying is give me back the same amount of money. .. (it is not constructive possession because they actually physically hold the money) What fact would we need to change to make him guilty of larceny? If he put it in the drawer and than pulled the money back out, because putting the money in the drawer would change the possession to the bank so when it was pulled out .. It would be trespassory taking. Because you have possession over the drawer but custody over the contents. People would outraged by this outcome read note 1 following the case. What the textbook says is that tell us that there is a crime of embezzlement in response to the situation. EMBEZZLEMENT has lawful possession of the property of employer and converts it to his own use. If the defendant as custody only then no embezzlement. (it goes back to larceny.) _____________________________________________________ ___________
___________ Go back to the definition of embezzlement.. Who gets popped for the crime.. Usually the big fish.. Why is that so? Because they have control of the money.. If you think about the core of what embezzlement is.. It is about someone who have lawful possession of the money. It is not requirement to be a big fish.. Can a cashier embezzle 20 bucks yeah but usually it comes down to getting fired and not a criminal case. - The second note if the defendant only has custody why is that important because that is not lawful possession.. So it becomes larceny. (trespassory taking) - What are you going to look at to tell the crimes apart? - Conversion? Part of it, look at the possessors right .. And the circumstances.. Ex. Are we dealing with lawful possession, custody ect. And look at when the defendant formed the intent to drive? _____________________________________________________ ___________ Larceny by false pretenses is a statute like any other crime. - Where the defendant makes a false representation with the intent to defraud the owner of his or her property, and the owner is in fact defrauded Here the defendant intent is to take actual title to the property. - What does it look like when someone takes title? Any ideas .. Scams. - HYPO- everyone has been to a coffee shop.. And there is jar that says Jeremy is a sick kid and you are a good person and you put 5 dollars in the jar. There is no Jeremy.. What possessory interest are you giving over? Title. You do not expect to get it back so the crime is larceny by false pretenses.
What is the difference between the jar and handing money over to someone on the street? The reasonable assumption would be that the homeless man would buy food.. What is the def. Fraudulent representation when you have over the five dollars are you really believing what he is saying? The jar is a far bigger reliance. Change the story on the front of the jar.. The sick kid is really sick and wants to go to Disney land.. Put the money in the jar for the specific purpose.. The money was put to the hotel.. The possessory interest being put in the jar is custody with the idea that they would give the money to the hotel it would become larceny by trick. It is not because of the wording of the phrase. It is the difference in the specifics.. IF you know exactly where the money is going to.. Why does that make the whole situation different it is the interest that you as the title owner is passing the jar. In the first situation You think that you are handing over the title to the jar directly.
Lets imagine that it is legitimate: if they get more than they need and if they keep the money are they committing the crime? No, because 1. how are they going to give it back. 2. As title holder you are running the risk that maybe that is going to be too much money. When they do meet the quota you are assuming that they will take away the jar.
People v. Whight
Brief Fact Summary. The Defendant, Theodore Whight (Defendant), discovered that the ATM card connected to his defunct checking account could still be used to obtain cash at four local Safeway stores. For several weeks he used this glitch to withdraw thousands of dollars from the Safeway machines. After this glitch was noticed, the Defendant was convicted by a jury of four counts of grand theft by false pretenses.
Synopsis of Rule of Law. To support a conviction of theft for obtaining property by false pretenses, it must be shown: (1) that the defendant made a false pretense or representation; (2) that the representation was made with intent to defraud the owner of his property and (3) that the owner was in fact defrauded in that he parted with his property in reliance upon the representation. Facts. The Defendant opened a regular checking account at Tri Counties Bank in January of 1991. The Defendant was issued an ATM card with no expiration date. Although the account was opened with $3,750.99 in funds, eventually the account was depleted and became overdrawn by $6.17. As a result, the bank mailed a letter to defendant indicating that deposits sufficient to cover the deficiency needed to be made. When the Defendant failed to make the necessary deposit, the account was closed and the ATM card was viewed, from the banks point of view, as canceled. Although the account was canceled, the Defendant was able to use the ATM card at four Safeway stores to obtain more than $19,000 in March and April of 1992. The ATM terminals in the stores were connected to a computer system operated by Wells Fargo Bank. The Defendant was able to receive funds because it was Safeway policy to provide a stand-in approval code if and when Wells Fargo was unable to verify account information in a timely manner.
Issue. Can the Defendant be acquitted because Safeway relied, in part, on the information provided by Wells Fargo?
Held. The Defendant should be convicted of the charge of false pretenses. The computer system that Safeway employed never, in fact, approved the defendants transactions. As a result, Safeway had nothing to rely upon except for the Defendants implicit
had nothing to rely upon except for the Defendants implicit representation that his ATM card was valid. Discussion. The representation element necessary for proof of false pretenses was examined by the court in this case. The court found that the representation element may be satisfied by pure conduct and may either be express or implied. As a result, when the Defendant repeatedly proffered his ATM card he impliedly represented, falsely, that it was valid. The Third District Court of Appeals held that it did not matter that Safeway, through its agents, did a factual investigation through the Wells Fargo system. The fact that the Safeway agents relied, in part, on the Defendants conduct was enough to satisfy the requirements for a conviction on the charge of false pretenses. The defendant could say that it was a valid atm card that it wasn't his fault that they made an error he is saying something more nuance also.. Does he know he is making a fraudulent attempts but the victim was relying on the computer not his statement..
This is another case where the court has to stretch the definition to make it fit the new definition. Defendant is taking advantage of the gap in the law .. How is it any different from swiping a card or writing a check? There is an obligation to know but no one relied on anything I said. The cashier relied on what the bank told her the bank is the one who gave her the approval code. What does the court say- IT says that the safeway was truly relying on the defendant.. The result is the correct result.. But when the definitions developed we did not anticipate computers. _____________________________________________________ ___ ROBBERY - is all of the elements of common law larceny plus 2 additional elements. - Taking from the person - Force or threat of force. - It involves danger to the person.. A threat of force sufficient to induce fear. What if the defendant is seven years old? If you do not see a weapon.. Not a robbery for a reasonable person if a reasonable person would not feel threatened in that situation. What if you are asleep- No wont work because the only force that is used is sufficient forced used to take trespassory taking. What if.. You are walking down the street hit and the head and wallet is taking yes robbery. What if you want something and you lace a cake with drugs this is force not necessarily violent.. You rendered him unconscious.. The assault and Batter aspects will merge into the robbery.
PG 934Defense for all threat crimes - Claim of right? If the defendant believes that they truly own the property and they turn out to be mistaken there was no intent to permanently deprive her of her property. IF the defendant honestly or subjectively believes the property is theirs. - IN common law you could use claim of right because you could use force to take back property that was yours in modern law this is not allowed. TODAY THIS IS NOT A DEFENSE. - OJ Simpson is a good modern example. HOW DO WE KEEP THE THEFT CRIMES STRAIGHT? Model law helps with that situation. So we need to know the common law crimes but In practice we will not have the same complications.. 1. Theft: covers common law crimes.. Larceny, Larceny by trick, Continuous Trespass, False pretense. 2. Robbery: Due to the degree of violence 3. Embezzlement- treated as a separate crime because it is an abuse of trust. _____________________________________________________ _______ 949 NOTES 1a. Not larceny because there is no trespassory taking - Larceny by trick- there was no affirmative trick.. No awareness. - Larceny by continuous trespass- no because there was no trespassory taking. - Embezzlement- could be.. She is given lawful possession of 10 dollars we are talking but not directly - False pretenses- No - There was no crime. - 1b. Not larceny because there was no trespass taking the teller is passing title. There could be false pretenses but she didnt make a misrepresentation.. The title was passed.. What is missing.. The fact that she doesnt say anything.. She says nothing can that be false pretenses.. Can you be guilty based on an omission.. Yes but at most we might have false pretenses by omission.. She might have a legal obligations.
1c. The same as A .. And D is closer to being a crime then A and C. D would fall closer to false pretenses by omission. Generally when we talk about actus reus we talk about a positive act. The actus reus component can be met by a failure to act. _____________________________________________________ _______
Pg. 127 the key to actus reus we need a conscious or voluntary act. Even if on the outside it looks like that person slugged you in the face it cannot be a crime.. Ex. A man sleep walking kills his mother in law it cannot be convicted of a crime because he was not conscious.
State v. Utter
Brief Fact Summary. The Defendant Utter stabbed and killed his son. He claims to have no recollection of the murder, as it was committed after the Defendant had consumed alcohol and allegedly killed by a conditioned response. Synopsis of Rule of Law. An act committed during unconsciousness is not voluntary, and therefore one cannot be held criminally culpable for said act. However, voluntarily induced unconsciousness, such as by drugs or alcohol, is not a complete defense.
Facts. The Defendant and his son had been living together at the time of the killing. The son entered his fathers apartment on the date in question, and shortly thereafter, he was heard to say, Dad, dont. He was later seen stumbling into the hallway of the apartment building, and before he died, he said, Dad stabbed me. The Defendant had served in the armed forces and was honorably discharged. He testified that on the date in question, he began drinking in the morning. The Defendant remembers drinking with a friend of his and waking up in jail, but he does not remember anything in between. At trial, the Defendant sought to introduce evidence of conditioned response, which his expert defined as an act done automatically in response to a certain stimulus. The trial court ruled that this was no defense and instructed the jury to disregard the evidence. The jury convicted the Defendant of manslaughter, and he appealed to the court rendering this opinion, the Court of Appeals of W ashington.
Issue. Did the trial court properly instruct the jury to disregard evidence regarding the defendants conditioned response defense?
Held. Yes. Homicide is defined as the killing of a human being by the act
THE DEFENDANT remembers sitting around drinking but he wakes up with no memory and no recall. WE learn about the events when mr. utter killed his son. Witnesses here Dad dont he came out into the hallway and he was stabbed before he could say anything out. Second degree murder is defined as in this jurisdiction- it looks like an intentional killing of his son.. He ends up being convicted of the crime of manslaughter. In appeal he presents mental health history where he responds in a conditional way. As part of his training in jungle warfare you just react in a particular kind of way. He offers evidence prior events in the 50s. Why doesnt that help Mr. Utter ? Because since he knew that the had a problem and yet he allowed the problem to persist he is
since he knew that the had a problem and yet he allowed the problem to persist he is consciously allowing it to persist. And that becomes the actus Reus.. He puts it all together .. The court disagrees.. Saying he voluntarily agreed to drink alcohol he put himself in that state. Why is the case in the casebook.. To demonstrate that a voluntary act like drinking the involuntary act can count. The defense is to be limited to where there is no conscious or voluntary act. NOTE 6 Pg. 134 Defendant knows that he has a problem with epilepsy. He claims lack of voluntary act.. What should be the result? Guilty because he knew about his condition. He failed to take action to protect against it. If they had made the killings the very first time that the result occurs then there would have been no prior issue. When defendants offer the defense we limit the defense of lack of voluntary act. _________________________________________________________________ OMISSIONS THE FAILURE TO ACT
GENERAL RULE: You have no duty to act on behalf of other people Ex. IF you were an Olympic swimmer and a baby is drowning and you do not save the baby even if you could will not make you guilty of a crime. The question is how far is that going ot stretch.. The examples are pretty extreme. The example 5 or so years ago.. The guy from a casino takes a little girl and rapes and kills her his friend knows but does not stop him..
WE could see problem with extremism.. Or starting to render aid and not being able to do so.. And personal autonomy we would never be getting anything done. NO DUTY TO COME OT SOMEONES AID>
____________________________________________________________ People v. Beardsley Brief Fact Summary. While his wife was out of town, the Defendant spent the weekend with another woman, Blanche Burns. On Monday afternoon, Ms. Burns consumed morphine in an apparent suicide attempt. After she died, the Defendant was convicted for manslaughter for failing to render aid.
Synopsis of Rule of Law. A person owes no legal obligation to another unless such person is within his custody or care as a dependent person.
Facts. The Defendant was a married man. While his wife was out of town, he arranged to spend time with Ms. Burns, with whom he had been previously acquainted. The two spent the weekend together drinking liquor in the Defendants apartment. When they ran out of liquor, a young man from the Columbia Hotel brought more. The young man appeared on Monday afternoon to see if they wanted anything, and Ms. Burns sent him to the drugstore to get camphor and morphine. Ms. Burns concealed the morphine from the Defendant, but the Defendant and the young man noticed her putting something in her mouth. The Defendant knocked the box out of her hand and crushed several of the tablets. Nevertheless, she probably took about three to four grains of morphine. The young man then left, but the Defendant called him about an hour later and asked him to take Ms. Burns to the basement
called him about an hour later and asked him to take Ms. Burns to the basement apartment so that his wife would not see her. By this time, she was in a stupor and did not respond when spoken to. The Defend ant was too intoxicated to help at this time. Ms. Burns died later that day, and the Defendant was charged with manslaughter for failing to render aid to her.
Issue. Is the Defendants failure to act to save the life of another person manslaughter? Held. No. Under certain circumstances, namely when one is dependent on another, an omission of a duty owed by one individual to another, where the omission results in the death of the person owed the duty, is considered manslaughter. However, the Defendant owed no such duty to the alleged victim here. Ms. Burns was over 30 years of age, and her conduct indicates that she had plenty of experience with carousing with men and consuming alcohol and drugs. Hence, while the defendant may have had a moral duty to protect Ms. Burns, the law imposes no such duty on him. Discussion. A failure to act to save ones life is not a crime unless the person is in the care or custody of another.
WHY IS MR. BEARDSLEY trying to stop her.. Because the evidence points to her trying to commit suicide. Another tenant from the basement helps by taking blanche down the basement.. She dies. His defense if that he did not have a duty to anything so therefor he is innocent. What is the intermediate step? No actus reus.. If I do not have a duty and I failed to act I Cannot be responsible the crime.. The court says that as bad as it looks at the time must take morals out of it. If this case was decided today.. Different result? The general rule is that you have no duty to act on behalf on other people.. For every general rule there are exceptions. Note 2 on pg. 139 1. Where the statute imposes a duty and you fail to act that will meet the actus reus component for a crime. A teacher and Student or doctor and patient. If you are a physician and learn that there are a potential problem but you fail to act then you can be deemed guilty. 2. Status relationship.. (husband and wife) What does the law mean when it refers to a statutory duty? If you had a kid and you failed to save the child if you didn't stop him from choking. Guardian for a child- legally responsible for the child because of statute and a judge had deemed you legally responsible 3. Contractual duty: there is contract between you and the care take that if they need help they will take care of that person. Nursing home/ Day care. 4. Voluntary assumption of the duty- if you voluntarily assume the duty to help another person you have to follow through. You volunteer ot render cpr.. And the ambulance comes in and takes over than that is fine but if you are rendering cpr and get bored or change your mind you will be guilty. You do not have to save the person but you do have to take reasonable steps. - If you are giving someone aid and something happens and you are taking reasonable steps to help them.. No responsibility in civil or criminal court. IF you do not have the skills to render cpr.. And your actions cause the death
- IF you do not have the skills to render cpr.. And your actions cause the death than the responsibility is faced. 5. When you create the dangerous situation- Hit and run.. If you create the problem than you must follow through. IF you dig a ditch and let someone fall into it then you have the duty to help the person he falls and breaks his leg.
YOU CAN HAVE A STATUTORY DUTY THAT IS THE SAME AS A STATUS RELATIONAHIP.
Week 8
Wednesday, February 23, 2011 11:51 AM
HOUSE KEEPING Soon will be another open office session later this term. Will most likely be a Saturday. If it asks a specific question and we had no statute to go off of in order for you to answer it you would have to have the law that applies. i.e. In the bar exam you assume the law is where you are located or the bar you are taking. Cooley offers some classes that cover the laws in Michigan.. (bail to jail) Might take a class later on called district court practice clinics.. (BAR REVIEW) School does offer some bar review classes. If you are planning on taking the bar in more than one state what is the multi state bar.. It is a 200 question multiple choice question if you are planning on taking more than one bar.. You need to learn the different laws from different states. You just have to put yourself into a boot camp time frame. Adequate time to study for the bar? - believe what the bar review does.. It is about 8 weeks. International Law? You need experience in international law.. There are some international programs. Go on the portal.. The information is there How different is it in applying to an international organization? No idea Prof. Dave Finigan and Paul Carrier.. They are the profs to talk to. When looking at the scheduling things go speak with advisor. There are some jurisdictions who want us to register early.. But some do not. MPRE: which is the nationwide test.. Which is the professional ..ethics portion of the test. You can take that after you have taken the professional responsibility. Make sure you find all of the things on the states website that you need. RELY ON WHAT THE STATE SAYS ACTUS REUS There is no duty to act on behalf of others unless you fail to act. WE are moving into the inchoate crimes- partial // or incomplete. We call them that because the harm is not fully realized. Attempt, solicitation, and conspiracy.
Attempt is when the d. with specific intent to commit a crime takes a substantial step to complete crime beyond the mere preparation. Mens rea- intent to committee crime Actus Reus- substantial step beyond mere preparation
Look at the steps on page 748.. - Annie and the steps 1 no - Does step three matter is there a real perception of mens rea .. No - Advantage of arresting her at step 6 is that we are keeping people safe. WE do not fully know her mens rea at this point in time. What is the problem? We want to get people before they commit crime the problem is we are missing the intended victim.. Its a little difficult to say that this is attempted murder. - Step 7- Yes.. Because it is clear what the mens rea is goes beyond just preparing to commit a crime. - What should we do in Step 9.. Should we cut her a break.?? The action is she deterred herself and the punishment would haven no affect. .. Why did she stop did she truly have a change of heart.. Or did she just stop because the kid was there and she still intends to commit the act.
stop because the kid was there and she still intends to commit the act. How do you really apply the definition. You are allowed to have bad thoughts if we did everyone would be locked up. WE need the actus reus to be specific enough that we can be completely confident that we all know what she is doing. As she gets closer and closer to the target crime that is when we want to stop her and arrest..
PEOPLE V. GENTRY.. - It says that the boyfriend spilled the gasoline on the girlfriend. They also say poured it looks like a purposeful action.. They are fighting and she goes into the kitchen and the gasoline gets ignited by the stove.. What is the defendant charged with at the trial? Attempted murder. The judge instructs the jury on the definition of attempt. Judge gives a second instruction intent to do great bodily harm and variations. What is the judge doing when he gives those alternative mental states. He is giving the jury an easier way to convict.. The judge was packing together two things. He is giving them the definitions of the mental states required for malice. What is the problem ? The great bodily harm is not the same as intent to kill .. The Trial judge erred in providing this definition the crime of attempt does not exist alone. But is extremely strict.. The defendant must specifically intend to commit that crime. The second we charge a defendant ex. The crime of arson.. The person must have the intent to burn for murder it must be the intent to kill. BECOMES SPECIFIC.. Regardless of the fact that the crimes have different mental states. You cant accidently attempt something.. Because it is incomplete crime we do not want to punish someone without being sure that they are doing what we are assumed. -- ATTEMPTS will merge with the completed crime .. Why not punish for both? Because it would over punish the defendant. In actuality he has completed one crime and one crime only. Assuming the judge had properly instructed the jury would he be convicted of attempted murder? Because he does not have the specific intent to kill. How do we know? Because he did not have intent to kill.. Why do you know it.. He did not light her on fire according to her testimony You cannot argue a negative? We must go off of the facts as we have them. They could try to argue how did a normal situation turn into gas being poured As a defense attorney wants all or nothing. Actus Reus We can also look at the other end of the spectrum we know that this goes beyond preparation how to determine when the actus reus has been met. In the Mandujano case it is a discussion and tests that can look at in terms of figuring out the actus reus of attempt has been met. FOR OUR PURPOSES USE THE SUBSTANCIAL STEP PAST PREPARATION>..
NOTE C- The indispensable element test- a variation of the proximity tests which emphasizes any indispensable aspect of the criminal endeavor over which the actor has not yet acquired control. Must look at all of the facts and circumstances its a matter of feel.. Look at the difference and worked the facts. GO BACK TO ANN AND BOB We do not know what she is up to until we know what she is up to .. We know what she is intending to do.. But the problem is there is no bob. .. Question is do we also need to have the intended victim proximately close. That would endanger bobs life no one wants to be bob in that case. Must be a middle ground there .. Look to make sure that we can look to the defendants character.. Hypo If she wanted to poison someone.. There are a lot of steps to go through where to do we decide enough has been completed.. Its a fact specific situation. There might be counter elements along the way. The difficulty with the poisoning thing is where do we cross the line? How is that situation different from Ann and Bob? The difference is she knows when the victim is showing up. If she had the knowledge of when bob got home from work then there would be a difference. -- Is attempted felony murder can be a crime? No because there is no specific intent. Except for Florida.. Logically it makes no sense.
DEFENSES TO THE CRIME OF ATTEMPT. People v. thousand The case of the sheriff posed at the 13 yr. old girl.. There were several exchanges.. Chris thousand reveals his
The case of the sheriff posed at the 13 yr. old girl.. There were several exchanges.. Chris thousand reveals his name and sends pictures of his genitalia and face. He wants to have her come to his house and he asks her a question about whether she looks 16 and points out that he could go to jail. He will be carrying a white teddy bear. There was no bekka but the sheriff does arrest him. The crime was the attempted distribution to an underage person.. Because its recipient was not the underage girl. He presents the factual impossibility.. That there was no way due to the facts and circumstances the commission of the offense is actually impossible. Four examples listed on page 773.. Court starts talking about two different types of impossibility.. 1. Factual impossibility- occurs when the defendants intended goal is a crime but she fails to complete the crime due to a factual circumstance beyond her control. - Not excepted at common law.. Why not? Because he got lucky and he is still dangerous.. We want to identify and punish dangerous people but not comfortable not punishing him. 2. Inherent factual impossibility: Occurs when the defendant's intended goal is a crime, but the means used to accomplish the crime is completely ineffectual. - They are not dangerous.. They are mentally ill but they are not dangerous. At common law we id except this defense. Who would charge this person with attempted murder? That is the question. 3. Legal impossibility a. Pure- Occurs when the defendants' intended goal is a crime, but the law does not criminalize the defendant's acts. - excepted at common law and it is excepted today.. He really didn't break any laws.. He is not dangerous because he did not break any laws. b. Hybrid- Occurs when the defendant's intended goal is a crime, but she fails to complete the crime due to a factual mistake regarding a legal circumstance. - Thousand is using this defense. - At common law this was kind of seen as a defense the court says we are going to reject this defense why do you think that the court is rejecting?? What is the difference between this and the pure ? Is there any difference between these to characters? - The court goes and say ultimately it is the same thing as factual it is just dressed up different.. Because this defendant is a dangerous individual.. The criminal law is designed to punish these people.. In general the Factual impossibility was not recognized, and it holds true in all jurisdictions.. Most jurisdictions now reject the hybrid now because of the same reasoning. Very few will accept it today. Most will accept the pure legal impossibility. DISSENT Judge Kelly: as bas as the actions are the defense is recognized and until the legislature says otherwise we have to recognize the defense.
In terms of impossibility it only shows up when the commission of the crime itself it is impossible. It shows up in very rare situations. Tend to show up a lot more now with the internet and people meeting in chat rooms etc. Defendant cannot always make that claim.. Why not? Commonwealth V. McCloskey - The idea that the defendant completely denunciates his intent is not a defense at common law. ABANDONMENT.. - Dec. 26th defendant wants to get out of prison.. Because was denied the Christmas furlough.. At 12:15 - The important part of the alarm is that it signals an escape from reck area.. - Leaves his cloths with a number on them by the area where he cut the wire. At 5:15 he approaches the first guard and he had changed his mind about escaping.. He wasn't going to shame his family more than he already had. HE was found guilty at a bench trial of attempted prison breach.. What happens.. The majority of the court says that since he voluntarily abandoned they were moved and they got threw out the conviction. They reason that he never left the yards of the prison.. - Were they correct in that regard? The majority says you are not even guilty of prison break because all you did was break through that one
1.
The majority says you are not even guilty of prison break because all you did was break through that one fence and that was not enough DO we agree with that? - He had the specific intent to break out of prison. - He had taken steps past mere preparations.. - He has the mens Rea and the Actus Reus Judge Cercone- Agreed that the attempt should not be premitted to stand but because he abandoned it voluntarily. - Some jurisdictions do except the defense today if they can prove things 1. voluntary.. 2. Has to be complete .. Abandoned because they did not want to commit the crime and not because he intends to commit the crime on another night.
The abandonment defense works better in some context over others. The Gut reaction becomes important in law school. -________________________________________________________________________ Exam WRITING>>
All of the essays are being made on the twen page. DO the essays the first time.. Do not time yourself do not beat yourself up.. Actually write it out.
WEEK 9
Wednesday, March 02, 2011 2:02 PM
Going to be going into more inchoate offenses. Attempt is the first experience with specific intent crime. A person with specific intent to commit a target crime takes substantial step beyond mere preparation. What is going to be the difference with the mens rea we have alternative mental states for the murder but for attempt it is INTENT.. That is it. You must specifically intend to kill. DO NOT TREAT ATTEMPT AS THE SAME AS THE COMPLETED COUNTERPARTS. Crime of solicitation.. What is the specific intent? It is the specific intent that the other person commit the crime. We want to intent to ask and then intend that the act be committed. The Actus rues is the asking / counseling of another to commit a crime.
The key is that the other person is understanding the words. It is called the innocent instrumentality rule the person must know or it is as if the asker is committing the crime itself. Note 2 on pg. 793 - You are guilty of the crime committed once the other person completes the crime. The crime is of solicitation is complete once the question is asked. Solicitation merges.. It will merge into the other crime.Does the action mean anything? There must be an agreement. If the other person says nothing and commits the crime the other person is guilty only of the crime committed because it merged.
What happens is no one hears the request ? State V. Cotton. t - He is married five kids with his wife and a step daughter. - He is charged in 1987 with multiple counts of criminal sexual conduct and penetration with the daughter. He is waiting in jail pretrial and he decides to contact his wife and have the stepdaughter to not testify. He writes a letter and he gives it to his cell mate. The cell mate hands it over to the guards and then there was a second letter. The Second letter also never makes it to the wife. The Cotton is charged with two counts of solicitation. - He argues that his letters were never read by the intended recipient he was not guilty. Why do you think the state is taking the opposite position? The crime
- Why do you think the state is taking the opposite position? The crime would have occurred without the intervening force. Is he claiming impossibility? He is saying that he is missing an element.. The crime was not completed. - The states argument is that just because she didn't receive it she still asked. Are they right? - The court said that the material part of was the intent and it should have been a charge of attempt to solicit. He wrote the letter and the substantial step was the handing it over and saying send it out. - That is not the way we want the law to be is just the writing of the letter. The mens rea is met by a lot of things the words in the letter etc. The actes reus is the difficulty. - At common law was not a issue it was nothing that the common law ever dealt with. Why? - Before most people could read right or have alternative means of communication. This is a problem that is arelic with the modern time. EMAIL for example. - JURISDICTIONS are split on this ISSUE.. PROBLEM OF MODERN LAW.. WOULD KNOW AS A STUDENT BECAUSE THE STATUTE WILL DEFINE WHAT NEEDS TO HAPPEN.. CONSPIRACY The agreement to commit a crime or agrees to commit a lawful act through unlawful means. What do you think an agreement to commit a law act through unlawful means looks? OJ, claim of right is a defense to theft, he was committing a law ful act but he was using force so that is unlawful means. Raise money for charity (lawfully) rob a bank for the money is the unlawful part. They have to intend to agree and intend that the unlawful act be committed. The actus reus is the actual agreement itself. Conspiracy does not merge when the actual crime has been committed. Because group activity is more dangerous then people acting alone. It is less likely that someone will back out of the crime.. And there is a higher probability that a crime will be completed. We want to punish groups differently than people acting on there own. \ Pinkerton V. United States
Pinkerton V. United States The agreement is what? Tax fraud.. Violation of the IRS Code After the agreement is formed what happens next? Walter goes around the planet committing acts of tax fraud while Daniel is in prison. Why would her not be guilty of the later crimes.. Daniel argues that he was not part of the separate acts. CONTINUOUS CONSPIRACy?? What is the scope of coconspirator liability? What is the rule that we can take away from Pinkerton? Coconspirators are responsible for the conspiracy itself and all other reasonable crimes foreseeable in the conspiracy. Responsible for tax fraud but not rape ex. Acts of state tax fraud would be reasonable foreseeable. What about insider trading under the pinkerton liablity.. Are those acts reasonable foreseeable? What do you think you need to know? You want to know about the agreement.. And if the proceeds were to be invested might be foreseeable. If there was agreement ot use the money to fix up a barn not as foreseeable. The agreement will determine the scope.. The idea is objective, if the D says I didnt know he would do that.. Doesnt matter that is the subjective. We care about the objective notion.. Could it be a defense to say that after the first time I revoked the agreement..? That we will cover close to the end. Where does the conspiracy end? An agreement between to parties if A goes to buy a recreational amount of weed for the weekend. HE bought it from B. We have a agreement between two parties. Where does A think B gets his pot from C.. Does A really think it comes directly from C It can go all the way to Mr. Z . Think about the reasonable inference in the liability. A is responsible for all reasonable acts in that conspiracy. In this case A and B get arrested .. Is the conspiracy over.. No because being in jail does not end the conspiracy. It shows some of the difficulty in conspiracy. There are 4 aspects in conspiracy law.
1. The admission of Hearse evidence.. It is the out of court statement used to prove the truth of the matter asserted. IT means that you cannot admit testimony from a witness to prove what someone said. Goes to the ability to cross examine the person regarding that statement. How is that different in conspiracy trials? In conspiracy a out of court statement made by a conspirator while participating in the conspiracy may be introduced in evidence..
Evidenciary rules are relaxed in conspiracy trials. 2. We generally have joint trials and they are tried jointly.. How is this a powerful tool. Allows you to put them all together If you are the defense attorney you do not want to be put at the same table as mr. z 3. States and Federal law permit the government to bring a conspiracy prosecution in the jurisdiction in which either the alleged conspiracy itself was formed or any act in furtherance of that conspiracy allegedly committed. They get to choose there venue. 4. The conspiracy does not automatically end because a law enforcement officer steps in. Ex. Drugs are taken before acts are taken. How do you get out of the conspiracy? Realistically how are you going to try the case? The prosecutor is going to cut deals to get to Z. He only cares about Mr. Z What is the thought behind that rule? Unless you relax the rules regarding hearse you cannot prove conspiracy. They could all choose not to testify then you can't prove the conspiracy. What about the problem with double punishment? Because the conspiracy blossoms out and this is the extra punishment for acting in groups. Can a conspiracy lay dormant and then be revived? Yes.. But go back to the original conspiracy. It is the agreement that will determine the stretch. The Mens Rea and Actus Reus People V. Swain Conspiracy to commit murder. The jury was given the implied malice definitions. What is wrong with that? It does not instruct the jury properly on the mental state for conspiracy. The mens rea is the specific intent. Can you have a conspiracy to commit an implied malice murder because there was no intent. You can have the conspiracy to commit the felony but not the felony murder. You must read it as specific intent to agree. Alternative mental states. When is knowledge sufficient to formulate the mens rea for intent. People V. Lauria Telephone answering service. an undercover officer who signs up for a
Telephone answering service. an undercover officer who signs up for a telephone service. The d. Tells the grand jury that he knew that the women were prostitutes.. He used there services. And he said but I did not conspire. What are the 9 overt acts? 9 actual crime committed in furtherance of the conspiracy. Basically when does the knowledge become intent. If knowledge alone made you a coconspirator then everyone would be in a conspiracy. Courts look at 2 individual cases. - Falcone - Direct Sales Falcone is someone is selling a lot of sugar yeast and cans and the question is because they know moonshine can be made with their product does that make them a conspirator. Direct Sales- Selling huge amounts of morphine to a doctor is ordering way more then he should be demanding. What should be looked at? In order to figure out if someone with knowledge you need to look at the totality of the circumstances. Look at the product itself. Many legitimate uses.. - The stake in the venture? What is the person getting in return for this. In the Direct Sales case they are getting a huge profit .. In Lauria what is he getting. - Are the sales disproportionate to the use of the service.? Must look at the totality of the circumstances. Court says just knowledge alone. Widgets have a deeply illegal use and the owner insolates themselves .. "I have no idea" Shows some.. And then the marketing will show the rest. If all you do is sell to dealers and you have no idea that the dealers are in any trouble. ______________________________________________________________ __________________ When you think of conspiracy the agreement can be very informal.. Human behavior is much more relaxed. The conspiracy agreement just has to exist somewhere. CommonWealth V. Azim Mr. Azim is driving the car. His two friends one in the front and one and
- Mr. Azim is driving the car. His two friends one in the front and one and the back.. Azim stops the car and a friend calls Tennenbaum over to the car. He does not respond the other two friends get out of the car they inflict injury and take his wallet. They leave the scene with Mr. Azim.. He is charged with simple assault, robbery and Conspiracy to commit. - He argues that there is a lack of evidence regarding the agreement. Why is he making the Actus Reus argument instead of the Mens Rea argument? Because the mens rea argument comes from what is inside his mind but if there is no agreement.. And that is something that is seen from the outside. Azim's attorney states there is no agreement because he stayed in the care. The prosecutor argues that he stopped the car.. We have no information as to way he picked up his friends. It is unclear the purpose for picking them up. Then flash forward to the moment that the car is steered over and they buddies say that they want to speak with Mr. Tennenbaum--- agreement because he was driving the car and he could have chosen to pull away. What do you know. That something is up to no good. In laura why is knowledge not an agreement what is the difference here? Because he was waiting and watching because he is driving the car. And he is in control of where the car goes and when the car leaves. If he had a been a passenger.. Not a coconspirator because there was no volitional act.. No way to reasonably infer the agreement. If he would have driven away as soon as his friends get out of the car? It becomes much more difficultit is likely a no depending on facts. The Actus Reus can be formed on very little. It can be by actions.. But you can have an agreement on these facts. - The agreements have to be formed prior to the action Generally when we look at the scope under pinkerten what do you know about the people you are agreeing with. CommonWealth V. Cook Dennis and Morrice the cook brothers. Victim trips in falls on her own accord .. And then Morrice jumps on top of the victim.. . What is Denise Convicted of.. Conspiracy to commit rape. He argues on the Actus rues.. Why is this better then the mens Rea Because he was saying some things that look damning. The only argument is that there is no actus reus.. The court agrees because the rape was already in process before the agreement. Acts of assistance do not conclude conspiracy. You could tweak the facts to
Acts of assistance do not conclude conspiracy. You could tweak the facts to make it work. At common law the actus reus was the agreement itself under modern law you need to overt act. What is an overt act- any act committed in furtherance of the conspiracy.
People V. Foster Why did we have the change in law.. Between bilateral and unilateral.. Because without the unilateral law there can never be a undercover police officer. What does the difference look like? - What you need is that one person needs to think that the agreement is being formed. - Raises the question of what do you have to agree to.
What do you need to know? What was A thinking At the time of the original interaction. Defenses.. Iannelli - any time 5 or more persons together you have a violation of this law. The D. are raising whartons rule. Basically some crime requires more than one person to commit the crime. In this example you need a min. of 5 people to violate this crime. If the crime requires multiple def. in order to charge conspiracy you need the amount required for the crime plus at least one more. No need for double punishment. Very lmited application. Most crime that we have on the books can be committed by single actors. Have the built in requirement of multiple defendants.
Week 10
Week 10: March 9, 2011 Intent: General intent: Battery Arson Rape Common Law Murder Modern crime with the following intents: o Malice o Negligence o Recklessness
Specific Intent:
- All theft crimes o Larceny - Inchoate crimes o Conspiracy o Attempt (assault) o Solicitation - Accomplice Liability - With intent to - Premeditated murder
Exceptions (can be either):
- Kidnapping - Burglary
Cannot mix mens rea of one crime and combine with actus reus of another crime and combine to make new crime - Exceptions: o Felony murder o Misdemeanor manslaughter o Burglary o Unintended victims case State v. Ward: Common Law: Pretty much guilty of the crime itself, can get the same sentence: Principal to the 1st degree: the person who actually commits the crime Principal to the 2nd degree: present at the scene either actual or constructive know ahead of time aid, counsel, command, encourage the crime Accomplice Liability: not present at the crime but provide assistance with the crime like coaching or planning, etc. definition: mens rea specific intent for that crime intend the crime to happen actus reus act of assistance or
that crime intend the crime to happen actus reus act of assistance or encouragement Only liable for what happens after the crime: Accomplice after the Fact: has to do something to keep the crime from getting out Modern Law: Principal: the person who actually commits the crime Accomplice: aider and abettor Accomplice after the Fact: limited liability Conspiracy: Compare Kilgore v. State with Pinkerton v. US: Pinkerton v. US: Chain of sequences: - What parties in chain need to know: o Just need to know the one person they are dealing with Kilgore v. State: Wheel of sequences: - Advantage of prosecutor is he can use hearsay - What do parties in the wheel need to know: o Dont need to know the others, but knowledge that there are others is enough o Need to know they have the same goal o Have an idea of what the others actions are going to be - Example: 9/11 hijacking Hybrid of sequence: - What do parties in the hybrid need to know: o Example: Drug ring How to get out of a conspiracy: People v. Sconce: - Voluntary act of abandonment - Communicate the abandonment to ALL known conspirators Impossibility: does not exist in model penal code and no evidence of its existing in common law State v. Linscott: - Guilty of robbery, but not guilty of murder - Said statute used to convict him of murder was unconstitutional Foreseeable consequence vs. natural and probable consequences: Natural and probable consequences: standard is higher than foreseeable because talking about taking someones freedom away in this case, higher standard because Linscott provided assistance to fuller, and knew that fuller had the shotgun for robbery, and knew the drug dealer would have guns proof that Linscott could reasonably foresee a murder happening
Week 11
IN terms of general intent crimes.. All the defendant need is to cause harmful or offense contact rape, arson etc. Any crime that is described with malice, The specific intent crimes get harder.. Burglary.. All theft crimes.. The intent is clear. Not generalized. Assault because it is an attempted but failed battery. All the inchoate offences are specific intent. Any crime that is established via accomplice liability. Any crime that using the words with intent too. 1st. Degree premeditated murder. The only two crimes you need to watch out for is felony murder Kidnapping.. The generic definition that was given was a gen. intent crime. But there are other definitions that would be a specific intent crime. The reason that we needed to know the different crimes is because defenses are going to operate differently. -------Strict liability crimes.. Driving without a license, speeding, letting the meter run out.. Everyone be guilty . 1. We are talking about offenses that have no mens rea to them. 2. They are called regulatory crimes.. Most are not dangerous crimes. They are generally split into two categories. Malum in Se and Mala Prohibita Malum in Se- are those that are bad in and of themselves.. They are inherently evil. (rapes, robberies etc) Malum Prohibita- Those that are prohibited things that we have decided to prohibit. There is nothing wrong with driving without a license other then society has decided that it is wrong to drive without the license.
How do you know that you are a malum prohibita offense: You are looking for mens rea language if it is absent the language it is pretty safe that it is a strict liability crime.. Such as knowingly, recklessly, ..
safe that it is a strict liability crime.. Such as knowingly, recklessly, .. Look for the adverbs. They are legal to a certain point.. They can be deemed unconstitutional.
Staples v. United States Dealing with machine guns. He is going to be tried for a statute .. Punishable up to 10 years for a weapon like this that is not registered. He wants to offer a defense.. That he didnt know that the weapon was altered. What does the trial judge do.. He does not let him off with that the d. c. is saying that this is a mala prohibita offense. He appeals up to the supreme court.
What is the issue to the supreme Basically that the statute looks like a mala prohibita crime but he thinks the statute should be read dif. So that the Prosecutor should be required to hear about mens rea. the judge here goes through some very specific test. Where does justice Thomas start? He starts with the plain language of the statute look and see what the legislators intended. He then goes to the idea that the silence does not mean that was not a presumed mens rea because he knows that based on the common law there is a strong preference to have a mens rea for every crime. Where does he go next? He goes to the intention of the congress.. (legislative history) he wants to see what did congress intend to do when it drafted the bill. Leg. Will debate so he can look back to the debates on this issue and he can evaluate what congress really meant to do. When he looked at the congressional history there is very little information. He then looks at precedent and case law he points to the united states v. Freed. Freed involved a Strict Liability offense where congress had outlawed the ownership of a grenade.. You cant confuse it for a breadbox or something else. The government said that the staples case is just like freed. What does the d. point too? That many people legally own guns in this county.. So this is a little different.. You cant make a direct comparison.. He ends up looking at the punishment of the crime. In this case 10 years they think that the punishment is so severe that a mens rea should be included.
What happens on Remand? The judge will read in a mens rea requirement so that Mr. Staples did not know that the gun was actually altered. First if you identify the strict liability look for the adverbs .. If you cant find one look to see what kind of behavior the statute is actually preventing Mala prohibita are allowable as long as the punishment are not to severe and to severe is loss of liberty.. On page 184 the indented text.. Where congress borrows terms of art from the common law they follow the common law. IF congress really wants to change the common law they have to come up with a brand new crime. When you are encountering a s.L crime see if it looks like common law.. If it is reg. offense that does not seem to have any mens rea then you are going to look at the punishment. We do not lock people up in this country unless we have proof of what is going on in there mind or mental state. Garnett v. State Mr. Garnett has sex with a 13 yr. old girl. We know he has an IQ of 52, his teachers relates to 11 and 12 yr. olds and he couldnt get a High School diploma because he could not get past the 5th grade level. He meets up with Erica Frazier who they communicate over the phone. He wants a ride home .. Erica tells him to come through the window.. What does garnet think regarding her age.. Friends told him that she was 16 and Erica had told him that she was 16. Erica becomes pregnant and he is the father. This law is a statutory rape law.. With items built in. what does he want to offer in his defense at trial that he did not know her age.. That he believed that she was 16.. He wants to offer that information regarding her mens rea.. The TCJ says that the way the statute is written that there is no mens rea requirement.. That he sees it as a strict liability crime. Look at the statute.. There are no adverbs.. He takes this up to the court of appeals.. He argues that the court below and error. He is making it a mistake of
argues that the court below and error. He is making it a mistake of age offense. He was mistaken about the victims age.. Is a variation of a mistake of fact. What does the Chief Judge say about that? He goes through the same steps from above. He looks at the leg. History and puts it all together and it comes together as this was a strict liability crime. He talks about how certain states have allowed this defense but we are not going to permit it in this jurisdiction.. The judge says that there is a time and place to consider these facts. The rightful place for that is at sentencing. The Majority would rule that this is a strict liability crime and there is no care at all for your mental state. The Dissent is saying that this is not a strict liability crime because of 1. the potential to lock people up.. And 2. the hypo on page 192 Making this an intent to penetrate mens rea. .. What we say is that it is a general intent crime that the def. but it is a strict liability as to age meaning we will not listen to the def. arguments about the victims age You must have intent to penetrate .. And you have to have intent to penetrate.. But if below an age there is a problem. IF THE MENS REA IS INTENT TO PENETRATE then what is the mens rea for attempted state rape is the specific intent to commit statutory rape. We could not charge her with a conspiracy to commit her own stat. rape it is called legislatively exempt. Mistake of age is a type of mistake of fact .. There are two kinds of mistake, mistake of law and mistake of fact. In a mistake of law defense the defendant is saying I did not know what I was doing was against the law.. IN a mistake of fact .. The def. is saying I knew what the law is but I did not know I was acting in a way that was against the law. MISTAKE OF FACT People v. Navarro Navarro was attempting to take wooden beams from a construction site that he though were abandoned. He offers the court two supposed jury instructions.. What do they have in common? They are saying that I thought the property was abandoned. 1. They come back to the good faith belief 2. And whether that good faith belief is reasonable or unreasonable.
2. And whether that good faith belief is reasonable or unreasonable. He wants the jury to see a good faith belief even if that believe is unreasonable he should be acquitted. What are talking about with good faith? That you honestly believed or subjectively believed. The judge turns him down and modifies the instructions. Which required a reasonable and good faith belief that the property had been abandoned or discarded. This case is pretty simple on terms of what the appellate court does the appellate court says that the trial court is wrong on there instructions IS that correct? If he truly thinks the property is abandoned then he cannot be guilty of theft. You just do not .. There is no additional requirement of objective viewpoint. If the defendant claims an honest mistake of fact that will negate his mens rea in a specific intent crime. In a general intent crime it is going to be honest and reasonable. Mistake of law People v. Marrerro A corrections officer in Connecticut he goes to new york with a gun in his pocket. Before he goes to NY he looks up the law.
He asserts the defense of the mistake of law. What is he saying is that he misinterpreted the statute. He is not saying I misunderstood the fact he is saying I misunderstood the law. The general rule that ignorance of law / mistake of law is not a defense. What that means is that we are all presumed to know the law. The defendant says that he has an exception that he believed that he was right when he read the statute.. The court does tell us that there are some exceptions 1. A misinterpretation if the defendant relies on a misinterpretation of the law by one who is charged to interpret the law. (such as a district attorney) it is narrow because we want to limit when people can argue this. The person must be acting in there official capacity. 2. when the Defendant is charged with a specific intent crime and the Defendants mistake would negate the specific intent.
How do we as citizens learn about the law? Because they are published.. What if there is a period of time after the executive signs the law and before they are published.. If you violated during that time you could exert a mistake of law because it is not yet published.. The time frame is very limited because once it is out there it is considered published He also attends several court cases of people who are also not paying taxes.. But he still claims that he retained the belief that he did not have to pay taxes. He continues getting the same message and he is eventually charged The TC Instructs the jury of a mens rea of willfulness.. And interpret it to mean voluntary and intentional violation of a known legal duty, the jury is also told that mistake of law must be subjective believe and a objectively reasonable. What is the mistake of law defense of specific intent crime this is the issue. The supreme court agreed with the TC definition of willfulness. The Supreme court said that all that is needed is an honestly held belief regarding the mistake of law. It is only a subjective. ------- Week 11 Material Defenses.. Fall into two categories
Justifications and Defenses

Justification- is that the actions are justified under the circumstances. (SELF DEFENSE) DID THE RIGHT THING Excuse (insanity) you committed the crime but we see why you did it.. You are excused from the crime. DID THE WRONG THING United States V. Peterson Peterson is inside his house and he hears some sounds coming from behind the house. In the alley way Mr. Keats is stealing windshield wipers from Mr. Petersons wrecked car. Peterson then goes back inside the house he gets a gun goes back out. Keats is getting ready to leave. When Peterson comes out loads the gun and then says if you move I will shoot. Keats gets out of the car takes a few steps toward Peterson ..
shoot. Keats gets out of the car takes a few steps toward Peterson .. BACK AND FORTH AGGRAVATION: and then Peterson shoots Keats in the face from 10 feet. In terms of self defense there are three basic the right and privilege to use non lethal force when non lethal force is used against you or deadly force when deadly force is used against you. 1. Necessity- the use of force must be necessary 2. The force must be proportional 3. There must be a reasonable belief that you have to use force to get out of the situation. The first of Peterson's complaints centers on the Judge giving the jury the initial aggressor . This is a subcategory of the necessity. The basic rule is that if you are the initial aggressor you cannot make claim for using force. What are you going to look at to decide who is the initial aggressor. It is the person who brings the force to the table. Meaning Peterson is the initial aggressor.. Can the identity change.. Yes the situations are very fluid. He is talking about the duty to retreat.. Did the party have a duty to retreat. What does the appellate court tell us? At common law the Def. had a duty to get out of the situation if he or she could. IF there was a way out he had to take that way out. We have this to prevent further harm, to limit this defense. The castle doctrine is that you od not have to run away when you are at your own home? Because it is your own place of safety and because in your home you have already retreated. Defense of self is a different thing than Defense of Property. When we say a necessity requirement .. From the notes following the Peterson case .. Pg. 507 note 4. The imminency requirement When looking at the proportionality of the weapons. THE THREE UMBRELLA TERMS
UNDER NECESSITY IMMINENT

IMMINENT WHO was the initial requirement And was there a duty to retreat.

Criminal Up To Week 11

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IN CLASS NOTES

Wednesday, February 23, 2011 12:14 PM

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January 26th, Week 4

with in is the word neg. /manslaughter. Statute has no degrees. __________________________________________________________________________________

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Notes Week 5 (Make up)

- Burning meant actual fire damage or charring of a permanent part of the

need all three you just need one or the other

DID MULTIPLE CHOICE Questions FROM BARBRI

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Week Seven notes

Audio recording started: 2:01 PM Wednesday, February 16, 2011

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Justifications and Defenses

UNDER NECESSITY IMMINENT

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