Issue/ Crime Legality

MPC THE MPC DOES NOT RECOGNIZE THE RULE OF LENITY MPC requires that criminal statutes be construed according to their fair import, and that ambiguities be resolved in a manner that furthers the general purposes [of the Code] and the special purposes of the particular provision involved.

TPC TPC expressly disavows the rule of lenity in Section 1.05(a) which says that the rule that a penal statute is to be construed strictly does not apply to the TPC

C/L Three interrelated corollaries of legality: 1. criminal statutes should be understandable to reasonable lawabiding persons; y Courts are much less likely to hold that a particular statute is too vague if it doesn t touch on fundamental constitutional rights y A statute cannot be considered to be so vague or unable to be understood as to violate Due Process unless a law-abiding person would still have to guess as to the meaning of that statute after she or her attorney conducts extensive research into the meaning of the law; therefore most statutes will be deemed to be understandable and thus legal 2. criminal statutes should be crafted so as not to delegate basic policy matters to policemen, judges, and juries for resolution on an ad hoc and subjective basis; y Ex. vagrancy or habitual loafer laws 3. judicial interpretation of ambiguous statutes should be be biased in favor of

Issue/ Crime

MPC

TPC

C/L the accused (the lenity doctrine) y ONLY applied if, after purusing all materials no more than a guess can be made as to the intention of the statute Constitution prohibit bills of attainder (special legislation that declares a specific person to be guilty of a crime and subject to punishment w/out trial or conviction) and ex post facto legislation The ex post facto clause prohibits: 1. Every law that makes an action done before passing of the law, and which was innocent when done, criminal; 2. Every law that aggravates a crime, or makes greater than when committed. 3. Every law that changes punishment, and inflicts a greater punishment, than the law annexed to the crime 4. Every law that alters the legal rules of evidence, and receives less, or different testimony, than the law required at the time of the commission of the offense, in order to convict the offender. y legality principle applies to

Issue/ Crime

MPC

TPC

C/L judicial branch; BUT, courts may interpret statutes prospectively

- Burden of production: Can shift from P to D depending on point in trial Burden of Production - Prosecution has burden of proving each element of the crime charged BARD - D has burden of producing any evidence regarding affirm. defense - Burden of Persuasion: responsible party bears the burden of convincing jury his claim is true

P Each Element of Crime D Defenses and AFF DEFs (label of AFF DEF does NOT by itself also shift burden of persuasion

P Each Element of Crime D Defenses and AFF DEFs

Burden of Persuasion

Pros BARD all except where specific provision expressly shifts the burden of persuasion to D. Def As required by any specific provision that expressly shifts burden of persuasion to D *same as MPC Under the transportation code, statutory duty to not leave the scene of a crime in auto accidents involving injuries Also, a person commits an offense when the D fails to report child sex abuse Failure to report a felony where a reasonably person would believe a felony was occurring (to a cop or agency)

Actus Reus: Omissionneglect of a legal duty Must have a legal duty in order to have an omission to act

*Legal Duty-Same as CL to result in criminal liability it must be proved that 1. the conduct of the accused in failing to act was accompanied by the requisite mens rea. 2. the accused was aware of the facts giving rise to the duty to act. 3. the accused owed a legal duty to the victim. 4. A causal relationship between the omission and the result.

P BARD (1) ea element of offense, (2) negate existence of exception & prove D s conduct d/n fall w/in exception, (3) DEF raised by D did not occur. NOT required to negate AFF DEF. D AFF DEF must prove by Preponderance of Evidence Legal Duty (SSCAD) 1.Statutory duties, ex. Federal law makes duty to pay income taxes by certain date. Statute that makes parents to provide food/shelter to children. 2.status relationshipsof such important, even w/o statute, there s a duty. Ex. Parent to child. 3. Contractual duty to aid: written or expressed. Ex. Babysitter. 4. Actor creates risk of harm to person and fails to diminish that risk. Ex. Hit b/c created additional risk.

Issue/ Crime

MPC 5. that performing the duty was possible

TPC

C/L 5. D acts when no duty to act and then after, stops. Omission creates duty to act if failure makes things worse than if you hadn t started to being w/. Liability depends on whether you ve made matter worse. If people were going to call 911, now won t b/c saw you swimming toward.

No duty to rescue in situations where you are a stranger Social Harm

Look @ the definition of the crime and ID the elements that describe the external conduct that constitutes the crime. Ex. Burglary, CL: breaking & entering into a dwelling place at night w/ the intent to commit burglary. Actus reus is the breaking & entering into a dwelling place at night. Social harm of murder is the death of a human being by another. y When that social harm occurs as a result of voluntary conduct, then actus rea completed. Harm to whole community Social Harm Elements: -conduct crimes-no harmful result required. Ex: driving under the influence of alcohol. -result crimes-does not matter how result occurs, just that it does. Ex: murder-the killing of a human being by another human being -attendant circumstances-certain facts or conditions must be present when the actor performs the prohibited conduct or causes the prohibited result. Ex Burglary: the breaking and entering must be a dwelling house Any offense that requires a culpable state of mind but which does not contain a specific intent A person acts purposely with respect to a A person acts intentionally or with intent A person intentionally causes the social Intent / material element of an offense when: a. When it is his conscious harm of an offense if: Purposely a. it is his conscious object to objective or desire to engage in a. It is his desire (conscious engage in conduct of that nature the conduct, OR objective) to cause the social

Issue/ Crime

MPC or to cause such a result, AND b. If the element involves the attendant circumstances or he believes or hopes that they exist

TPC b. Cause the result

C/L harm, OR b. He acts with knowledge that the social harm is virtually certain to occur as a result of his conduct Known certainty is greater than high probability A person acts intentionally as the term is defined above, if the result of her conduct differs from that which she desired only in respect to the identity Merges with Intent

Transferred Intent

NOT FOLLOWED (See causation 2.03)

NOT FOLLOWED (See causation 6.04)

Knowingly

A person acts knowingly when: a. If the element involves the nature of his conduct or the attendant circumstances, he is aware that his conduct will cause such a result, AND b. The ( is aware that it is practically certain that his conduct will cause such a result

Willful blindness

Is equivalent to acting knowingly a. If it is a situation where the actor is aware of a high probability of the existence of the particular fact that is an element. 2.02(7)

A person acts knowingly, or with knowledge with respect to the nature of his conduct or to circumstances surrounding his conduct when: a. He is aware of the nature of his conduct or that the circumstances exist b. A person acts knowingly or with knowledge with respect to a result of his conduct when he is aware that his conduct is reasonably certain to cause the result NOT FOLLOWED

D acts knowingly if (1) aware of fact, (2) correctly believe it exists; or (3) suspects it that it exists and purposely avoids learning if her suspicion is correct.

Issue/ Crime Recklessly

MPC A person act recklessly when a. He consciously disregards (aware) a SUR that the material element exists or will result b. Risk must be such that its disregard is a gross deviation from the standard of conduct a law abiding person would observe in the actor s situation Subjective Concept A person act negligently a. When he should be aware of a SUR b. A gross deviation of care from the standard of care that a reasonable person would observe in the actor s situation no conviction may be obtained unless the prosecution proves some form of culpability regarding each material element of an offense 2.02(1) Exception: 2.05 provides that the voluntary act and mens rea requirements need not apply to offenses graded as violations (offenses that cannot result in imprisonment or probation, but may result in fines)

TPC A person acts Recklessly or is reckless when: a. When he is aware of but consciously disregards a SUR that the circumstances exist or the result will occur a. The risk must be of such nature and degree that it is a gross deviation from the standard of care of an ordinary person from the actor s standpoint A person acts negligently a. When he ought to have been aware of a SUR b. The risk must be such that it is a gross deviation from the standard of care than an ordinary person would exercise TPC 49.11 (a) proof of a mental state is not required for conviction of any offense under Ch 49 of the TPC (alcohol offenses) except for section 49.031 (Possession of Open Alcoholic Beverage in a Motor Vehicle)

C/L A finding of recklessness requires: a. Proof that the defendant disregarded a SUR of which he was aware

Criminal negligence

If she shouldbe aware that her conduct creates a SUR of social harm (AKA gross negligence or culpable negligence)

Strict Liability

Strict liabilitydoctrine: rule of criminal responsibility that authorizes the conviction of a morally innocent person for violation of an offense, even though the crime, by definition, requires proof of a mens rea Strict liability offenses: crimes that by definition do not contain a mens rea requirement regarding one or more elements of the actus reus

Issue/ Crime

MPC

TPC

C/L

Public welfare offenses y not morally wrongful but can gravely affect the health, safety, or welfare of a significant portion of the public y Involve conduct malum prohibitum (e.g., state statutes that prohibit the manufacture or sale of impure food or drugs to the public, etc.) 1. Public welfare- minor penalties; non public welfare strict liability offenses - severe punishment 2. Non public welfare -malum in seViolators of such laws, therefore, are stigmatized despite the absence of proven moral fault Utilitarian Perspective Specific Intent: actor allowed to use good faith mistake of fact to negate culpability of the specific intent element of a specific intent crime based on either an unreasonable or reasonablemistake of fact General Intent: a good faith mistake of

Mistake of Fact/mistake

Defense of mistake a. The defense is available if mistake negates any element of the offense irrespective of whether the mistake is reasonable or unreasonable.

Mistake of Fact: a. Must be a reasonable mistake Does not apply to negligence

Issue/ Crime

MPC

TPC

C/L fact had to be reasonable to negate culpability for the general intent aspect Prevents a reasonable mistake from being available to negate general intent where the actor's conduct would be immoral if the facts were as he mistakenly believed Prevents MOF defense when, despite the actor's reasonable mistake, he would still be guilty of some other lesser crime under the facts, as he mistakenly believed them to be

Moral Wrong Doctrine

Silent

Silent

Legal Wrong Doctrine

Not called legal wrong (under Mistake) exception to the MPC mistake of fact rule is that mistake of fact is not available under the MPC if the actor would be guilty of some other offense if we take his mistaken belief as true ( guilty of less serious crime See mistake of fact (same) 2.04

Not called legal wrong (Under Mistake of Fact) The actor is only convicted of the lesser offense that he would be guilty of if his mistaken belief were true

( guilty of less serious crime Ignorance of provisions of any law after it takes effect = no defense AFF DEF if y y Reasonable belief that conduct did not = crime, AND acted in reasonable reliance upon o off l stmt in written order or grant of perm from agency charged by law w/ resp, o or written interp of law in

( guilty of more serious crime Not a defense- everyone is presumed to know the law Exception: a. Mistake the negates mens rea Reasonable or unreasonable b. Misunderstanding based on official but erroneous interp of law c. (note: private atty is not official )

Mistake of Law

Issue/ Crime

MPC

TPC opinion of ct of record, or made by pub off l charged by law w/ resp for law in question - ( may be conv d of any lesser-included offense he would guilty if law as ( believed. 8.03 Silent

C/L

Different Law Mistake

See as Mistake of Fact

Fair Notice

A ( does not believes his conduct is illegal, AND The statute defining the offense is not known to him and was not published, or otherwise made reasonably available to him before he violated the law2.04(3)(a)

Silent

Like MOF - ( claims b/c of mistake of fact she did not have the requisite mens rea to be convicted of this offense (typically non penal) a. Specific intent o A defense whether reasonable or unreasonable b. General intent o Not a defense c. Strict liability o Not a defense LambertPrinciple: Everyone is presumed to know the law Exception: Lambert v. CA Under very limited circ. A person who is unaware of a duly enacted and published criminal statue can successfully assert a Const. defense (MOL) Actus Reus is actually composed of three elements:

Causation

Uses but-for (sine qua non) rule. [MPC 2.03(1)(a)]

TPC 6.04 a. A person is criminally responsible

Issue/ Crime

MPC

TPC if his act is a but for cause unless a concurrent cause exists which was clearly sufficient to produce the result and the conduct of the actor is clearly insufficient b. A person is nevertheless criminally responsible for causing a result if the only difference between what actually occurred and what he desired, contemplated, or risked is that: 1. A different offense was committed; or 2. A different person or property was injured, harmed, or otherwise affected

C/L 1. A voluntary act; 2. That causes 3. Social Harm As a practical matter, causation only turns up as an issue in the prosecution of result crimes, most often homicide cases Actual Cause (Cause-in-fact) But-for or Sin Qua Non test: But for D s acts, would the social harm have occurred when it did? [2] Multiple Actual Causes When a V s injuries or death are sustained from 2 different sources, any of the multiple wrongdoers can be found culpable if his act was "a" cause-in-fact of the injury or death; not necessary that any act be the sole and exclusive cause-in-fact of injury. [3] Accelerating a result Even if an outcome is inevitable e.g., everyone dies if D s act accelerated death, he can be found criminally liable. i.e "but for the voluntary act of the D, would the harm have occurred when it did?" [4] Concurrent Causes If, in the case of

Proximate Cause (Actually, Culpability); Unlike c/l, the "but-for" test is the exclusive meaning of "causation". The Code treats matters of "proximate causation" as issues relating instead to the defendant s culpability. That is, in order to find D is culpable, the social harm actually inflicted must not be "too remote or accidental in its occurrence from that which was designed, contemplated or risked. 2.03(2)(b), (3)(c) Issue in a MPC jurisdiction is not whether, D was a "proximate cause" of the resulting harm, but rather whether it may still be said that he caused the prohibited result with the level of culpability purpose, knowledge, recklessness, or negligence required by the definition of the offense. W/ strict liability, MPC provides that causation "is not established unless the actual result is a probable consequence of the D s conduct." 2.03(4) This would mean that in a jurisdiction that recognizes the FM rule, but which applies MPC causation principles,a D may not be

10

Issue/ Crime

MPC convicted of FM if death was not a probable consequence of his conduct. 2.When purposely or knowingly causing a particular result is an element of an offense, the element is not established if the actual result is not within the purpose of the contemplation of the actor unless: a. The actual result differs from that designed or contemplated only in the respect that a different person or different property is injured or affected or that the injury or harm designed or contemplated would have been more serious or more extensive than that caused; or b. The actual result involves the same kind of injury or harm as that designed or contemplated and is not too remote or accidental in its occurrence 3.When recklessly or negligently causing a particular result is an element of an offense, the element is not established if the actual result is not within the risk

TPC

C/L infliction of harm from two or more sources, each act alone was sufficient to cause the result that occurred when it did, the causes are concurrent and each wrongdoer can be found criminally liable. [5] Obstructed Cause If D commits a voluntary act intending to cause harm e.g., shooting a victim in the stomach intending to kill the victim but another wrongdoer commits a more serious injury that kills V sooner, the initial wrongdoer might only be convicted of attempt to kill since the subsequent wrongdoer s act obstructed his goal to killing the victim. Proximate (or "Legal") Cause; [A] Direct Cause direct cause of social harm is also a proximate cause of it. The closest thing to a bright line rule in the realm of proximate cause is this: An act that is a direct cause of social harm is also a proximate cause of it. [B] Intervening Causes Independent force that operates in producing social harm, but which only comes into play after the defendant s voluntary act or

11

Issue/ Crime

MPC of which the actor is aware or, in the case of negligence, of which he should have been aware unless: a. The actual result differs from the probable result only in the respect that a different person or different property is injured or affected or that the probable injury or harm would have been more serious or more extensive than that caused; or b. The actual result involves the same kind of injury or harm as the probable result and is not too remote or accidental in its occurrence

TPC omission

C/L

[1] De Minimis Contribution to the Social Harm D s act caused minor social harm compared to social harm from a superseding cause, law will treat the latter as proximate cause of social harm. [2] Foreseeability of the Intervening Cause D can t escape liability if intervening act was reasonably foreseeable;unforeseeable intervening cause is superseding. In determining foreseeability, law distinguishes between "responsive" and "coincidental" intervening causes. responsive: act that occurs as a result of D s prior wrongful conduct. Does not relieve the initial wrongdoer of criminal responsibility, response was highly abnormal. Grossly negligent or reckless medical care is sufficiently abnormal to supersede, not regular negligence. A coincidental intervening cause: force that does not occur in response to the initial wrongdoer s conduct.

12

Issue/ Crime

MPC

TPC

C/L Apparent Safety Doctrine When a D s active force has come to rest in a position of apparent safety, the court will follow it no longer. [4] Free, Deliberate, Informed Human Intervention D may be relieved of criminal responsibility if an intervening cause. A subsequent dangerous action that caused the V s injury or death would not relieve D of liability if under duress [5] Omissions An omission will rarely, if ever, serve as a superseding cause, even if the omitter has a duty to act. [6] Intended-Consequences Doctrine-If D got exactly what he wanted, the fact that the result didn t occur in exactly the manner that D planned may not prevent legal causation from occurring A non-aggressor is justified in using force upon another if he reasonablybelieves such force is necessary to protect himself from imminent use of unlawful force by the other person. 1)necessity component imminent threats

Self-Defense

Person is justified in using force upon another person if he believes that such force is immediatelynecessary to protect himself against the exercise of unlawful force by another on the present occasion (3.04(1)) 1)focuses on innocent person s need to use defensive force immediately

1)D's reasonablebelief in the existence of immediatenecessity 2) the nature of the conduct to which D's force responds 3) the degree of force, either force or deadly force, which D uses in SD Not justified:

13

Issue/ Crime

MPC 2)Subjective belief, NOT reasonable

TPC 1)In response to verbal provocation alone 2)to resist search or arrest by cop even if he knows it s unlawful 3)if D consents to the exact force used or attempted to be used 4) if D intentionally provokes other person's use or attempted use of otherwise unlawful force unless D abandons encounter or reasonably believing he cannot safely abandon the encounter, clearly communicates his intention and the other person nevertheless continues or attempts to continue to use unlawful force against the actor 5) D sought explanation from or discussion w/ other person concerning D's differences with the other person, while D unlawfully carrying a weapon D justified in using DF: 1)to protect himself if he is justified in using force and 2)if retreat is not required under new and 3)D reasonably believes that it is immediately necessary to protect himself from the other person's attempted use of unlawful DF or 4)to prevent the other person's imminentcommission of aggravated

C/L 2) reasonablebelief rule subjective and objective components 3)proportionalityrequirement not excessive force in relation to harm threatened

Recognizes imperfect self-defense (mitigated down to manslaughter or criminally negligent homicide)

** Doesn t recognize imperfect selfdefense

Self-Defense: deadly force

Only use if immediatelynecessary to protect himself on the present occasion against death, serious bodily injury, rape or kidnapping (3.04(2)(b)) Denied self-defense if: y Actor provoked the use of force y Actor knows he can retreat w/ complete safety (except for person in own home)

Justified in self-protection if the actor reasonably believes that its use is necessary to prevent imminent and unlawful use of deadly force by the aggressor.

y y

Aggressor has no self-defense right If a nondeadly response will

14

Issue/ Crime

MPC

TPC kidnapping, murder, sexual assault, agg. assault, agg. sexual assault, robbery or agg. robbery Retreat not required w/ nondeadly force With DF, not required to retreat when: 1)person has the right to be present at the location where the DF is used 2)hasn t provoked the other person; and 3)not engaged in crim activity at time DF used 9.32(c) no right to resist an arrest the actor knows is being made by a peace officer, solely b/c arrest is illegal. Since excessive force is not allowed in performing an arrest, TPC recognizes a limited right to use force to resist the use of excessive force by the office to arrest. 9.31(c) Same as MPC

C/L suffice, deadly force can t be used, even if imminent Traditional c/l is one does not have duty to retreat before resorting to DF in justifiable defense of self Current view is jumbled.

Self-Defense: Retreat

Requires retreat before resorting to DF in self-protection only where there is no avenue of safe retreat open to the D and D knows of it (3.04(b)(ii))

Resisting an unlawful arrest

May not use force to resist an arrest that he knows is being made by a cop even if unlawful (3.04(2)(a)(I))

May use as much force as is reasonablynecessary, short of deadly force to resist an illegal arrest If uses deadly, guilty of manslaughter

Self-Defense: Defense of Others

Justified in using force on another in order to protect 3rd party when: 1)D uses no more force to protect X than D entitled to use in self-protection, based on D s subjective belief; 2)under the circumstances as D believes them to be, X would be justified in using such force in SD; and 3)D believes that her intervention is necessary for X s protection (3.05(1))

Justified in using force to protect a 3rd party from unlawful use of force by an aggressor. Intervenor may use force when, and to the extent that, the 3rd party would apparently be justified in using force to protect herself. Alter ego rule: old majority rule that intervenor could only use force to defend

15

Issue/ Crime

MPC Applicability based on subjective beliefs

TPC

C/L 3rd party if he put himself in X s shoes and they would have used it Modern view intervenor may use deadly or nondeadly force to the extent such force reasonably appears to the intervenor to be justified in defense of 3rd party. Justified in using nondeadly force against a would-be dispossessor if he reasonably believes that such force is necessary to prevent imminent, unlawful dispossession of the property.

Defense of Property

May use nondeadly force upon another to prevent or terminate an entry or other trespass upon land, or to prevent the carrying away of personal property, if he believes that three conditions exist: 1. unlawful interference 2. intrusion affects property in the actor s possession 3. nondeadly force is immediately nec. Extends to recapturing property after hot pursuit is over except if there is a dispute to the property s ownership

Justified in using nondeadly force when reasonably believes force is imm. nec. To prevent or terminate trespass or interference w/ property. Justified in entering the land of another and using force to the degree the actor reasonably believes force is imm. nec. To recover property if the actor uses the force imm. Or in fresh pursuit after the taking and: 1. Actor reasonably believes the other had no claim or right when he took the property; or 2. Other accomplished the dispossession by using force, threat, or fraud against the actor May use DF when reasonably believes DF immediately necessary 1. To prevent the other s imminent commission of bad felony; or

Cannot use deadly force to protect property

May use DF when actor believes: 1. Other is attempting to take home, or 2. Other is attempting to commit

May use deadly force to defend home founded on right to safe and private habitation (Castle Doctrine)

16

Issue/ Crime

MPC arson, burglary, robbery or other felonious theft and either: a. Has employed or threatened DF against or in the presence of the actor; or b. DF only way to prevent force user from death or serious BI

TPC 2. Prevent the other who is fleeing imm. after committing bad felony and; a. He reasonably believes that property can t be recovered any other way or use of DF would protect another from risk or death or serious BI Bad felony arson, burglary, robbery, agg robbery, theft during night, or crim mischief Justified use of force if not designed to cause or create substantial risk of injury or death and use of the device is reasonable under all the circumstances as the actor reasonably believes them to be when installed (9.44) DF under some circumstances when D reasonablybelieves that DF immediately necessary to prevent another's imminent commission of the following crimes against the person: aggravated kidnapping, murder, sexual assault, aggravated sexual assault, robbery or aggravated robbery. Texas retreat rule would apparently have to be applied to these situations.

C/L

Spring guns

Justifiable use of force does NOT extend to any mechanical device that is intended to use, or is known to create, a significant risk of causing death or serious BI 3.06(5)

may use spring gun to inflict DF on another where an intrusion is, in fact, such that a person, were he present, would be justified in taking the life or inflicting bodily harm w/ his own hands Felony offenses y Minority view - DF permitted for all felonies if he reasonably believes: 1. The other person is committing a felony 2. Deadly force is necessary to prevent commission of the crime y Majority view DF only permitted if the other person is

Use of force crime prevention

Felony offenses y DF not allowed unless believes: 1. There is a substantial risk that the suspect will cause death or serious bodily harm to another unless commission prevented; 2. Force is immediately necessary to prevent commission of offense; and 3. Use of DF presents no

17

Issue/ Crime

MPC substantial risk of injury to bystanders ** prosecution always permitted for reckless or negligent homicide if the actor s beliefs were reckless or negligent

TPC

C/L about to commit an atrocious felony (murder, manslaughter, robbery, arson, rape, and burglary) Petty offenses moderate nondeadly force may be used; DF never permitted Misdemeanor y DF not permitted Cop may not use DF (new S Ct. rule) unless: 1. Force is necessary to prevent the suspect s successful flight; 2. Officer warns suspect of intention to use DF if practical; and 3. Officer has probable cause to believe that suspect, if not imm. apprehended, poses a significant threat of death or serious BI to the officer or others Private citizens using DF in felony arrest: 1. Offense must be forcible felony 2. Arrestor must give notice of intention to make arrest; and 3. Arrestor must be correct that the arrestee actually committed the

Use of force arrest

Cop (or person under direction of cop) may use DF if he believes: 1. Force can be applied at no risk to innocent bystanders 2. Such force is immediately nec. to make the arrest; and either 3. The felony for which the person is being arrested included the use or threatened use of DF; or 4. A substantial risk exists that the suspect will cause serious BI to another if not apprehended imm. DF never allowed for private citizens

If the use of force follows below requirement DF is permitted and 1. Reasonably believes the felony or offense for which the arrest is authorized included the use or attempted use of DF 2. Actor reasonably believes there is substantial risk that the person to be arrested will cause death or SBI to another if the arrest is delayed

Private citizens may use force imm.Nec. to make an arrest or prevent escape: 1. Actor reasonably believes the arrest is lawful; and 2. Before using force actor manifests his purpose and reason or reasonably believes his purpose and reason are already known or it cannot be reasonably

18

Issue/ Crime

MPC

TPC be communicated9.51

C/L offense Not a defense in English common law A person is justified in violating a criminal law if all below are met: a. The actor is faced with a clear and imminent danger b. The ( must expect as a reasonable person that his action will be effective in abating the danger c. There must be no effective legal way to avoid the harm d. Harm that the ( will cause must be less serious than the harm that he seeks to avoid 1. Weighed against harm that is RF, rather than harm that actually occurs 2. Question is not if ( believes he made the right choice, but if the( value judgment was correct determined by judge or jury (objective) e. NOT a defense If lawmakers already anticipated the choice of evils and ( chose to go against

Necessity

Choice of evils defense: a person s conduct is justifies if: a. He believes his conduct is necessary to avoid harm to himself or another b. The harm to be avoided by his conduct is greater than that sought to be avoided by the law prohibiting his conduct and c. No legislative intent to exclude the conduct in such circumstances plainly exists No imminency Requirement

Conduct is justified if: a. the actor reasonably believes the conduct is immediately necessary to avoid imminent harm; b. the desirability and urgency of avoiding the harm clearly outweigh, according to ordinary standards of reasonableness, the harm sought to be prevented by the law proscribing the conduct; AND c. a legislative purpose to exclude the justification claimed for the conduct does not otherwise plainly appear. Lesser of two evils calculus Defense (not affirmative defense)

Lesser of Two evils calculus Imminence is not required or act immediately necessary

19

Issue/ Crime

MPC

TPC

C/L that ( must come to the situation with clean hand (cannot substantially contributed the emergency) Most Juris. limited to emergencies created by natural forces (not human) f. Does not apply in homicide cases Some juris. limit to protection of person or property

Limits of necessity defense

Defense not limited to emergencies created by natural forces, physical harm to persons or property, and may be employed in homicide

Same as MPC

Defense is unavailable if the actor is prosecuted for a crime of Recklessness or negligence (creating situation) and he acted recklessly or negligently (conduct) not restricted to only those threats that rise to the level of serious bodily injury or death. one could apparently raise the justification defense in crimes where the mens rea is purposefully or knowingly, even when the actor has acted recklessly or negligently either in bringing about the dilemma where a choice of evils becomes necessary or in appraising the necessity for his conduct. affirmative defenseif: Same as MPC

Def NOT avail for: civil disobedience (particularly where law violated is NOT one being protested; Typical reasons for reject: danger not imminent or legislature/Const n already spoken. Protesting by violating the law being protested excused civil disobedience: civil rights demonstrators sit in defense available

Duress

Scales down the threat that will qualify

Person will be acquitted (except for

20

Issue/ Crime

MPC 1. compelled to commit the offense by the use, or threatened use, of unlawful force by the coercer upon her or another person; and 2. A person of reasonable firmness in her situation would have been unable to resist the coercion Doesn t have to be imminent deadly threat Doesn t have to be a member of family threatened

TPC according to whether the person is coerced to commit a felony (must be threat of imminent death or serious BI to himself or another) or misdemeanor (by force or threat of force) Imminent harm if felony

C/L murder) if the act was committed under the following circumstances: 6. Another threatened to kill or grievously injure actor or a 3rd party (must come from human being) 7. Actor reasonably believed that the threat was genuine 8. Threat was present imminent and impending at time of act 9. There was no reasonable escape from the threat except through compliance w/ the demands of the coercer; and 10. The actor was not at fault in exposing herself to the threat Not a defense to murder Imperfect duress defense few states recognize; reduces murder to manslaughter

Doesn t have to be member of the family

May be used in murder prosecutions May be used in murder prosecutions Similar to c/l 4. Limited to threats of unlawful force 5. No defense when anything but bodily integrity is threatened

No defense that a woman acted on the command of her husband, unless she acted under such coercion as would

21

Issue/ Crime

MPC otherwise establish the defense of duress Expressly limits the threat to humans Unavailable if the actor recklessly placed herself in a situation. Applies if the coercer s use of unlawful force causes the coerced party to perform a different criminal act (prison escape to avoid rape) Battered Women and the Nature of the Person of Reasonable Firmness 1. may defend herself on the basis of an earlier threat by the abuser 2. may be able to excuse here conduct when she commits a crime at the suggestion of her abusive partner self induced intoxication
2.08: - any form of intoxication is a defense if it negates an element of the offense BUT: if RECKLESS is the charge, intoxication is not a defense if D would have known the consequences of his actions when sober

TPC

C/L

Unavailable if actor intentionally, knowingly or recklessly put himself in situation

Battered woman syndrome big question is whether she can present expert testimony y Trend is to admit evidence y Tough to present b/c she could have escaped

Intoxication Voluntary-not an excuse to crime but may negate mens rea (think

TPC 8.04 Not a defense! -negates the mens rea

CL Never a defense to general-intent crimes defense to specific intent crimes BAFFLE PACKS

22

Issue/ Crime MOF)

MPC
Involuntary Intox- affirmative defense Path. Intox- not self-induced is affirm defense to crim resp. if its similar o insanity.

TPC

C/L

Insanity

If unconscious due to intox. entitled to claim involuntary act. Sec. 4.01 Mental Disease or Defect Sec 8.01 Insanity Excluding Responsibility a. It is an affirmative defense to prosecution that, at the time of 1. A person is not responsible for the conduct charged, the actor, criminal conduct if at the time of as a result of severe mental such conduct as a result of disease or defect, did not know mental disease or defect he lacks that his conduct was wrong substantial capacity either to b. The term mental disease or appreciate the criminality defect does not include an [wrongfulness] of his conduct or abnormality manifested only by to conform his conduct to the repeated criminal or otherwise requirements of law antisocial conduct 2. As used in this article, the terms mental disease or defect do not Insanity in TX is a confession and avoidance defense include an abnormality manifested only by repeated criminal or otherwise antisocial conduct y Affirmative defense (DEFINED BY CODE TERMS)

The crim trial of an incompetent defendant violates the Due Process Clause. A person is incompetent if, during the criminal proceedings, she: 1. Lacks the capacity to consult with her attorney with a reasonable degree of rational understanding ; or 2. Lacks a rational as well as factualunderstanding of the proceedings against her Competency - issue of law to be determined by the trial judge Whenever the issue of competency is raised, D is required to submit to a psychiatric examination and may be committed to a mental facility If incompetent, criminal proceedingssuspended until competent,

23

Issue/ Crime

MPC

TPC

C/L if permanent condition, trial may never be held Pretrial Assertion of the Insanity Plea notice prior to trial of her intention to raise the defense of insanity Jury Verdicts Factfinder may return one of three verdicts in a criminal trial in which the D pleads insanity: - Not guilty, NGRI, or guilty y verdict of NGRI implies that the prosecution proved all of the elements of the crime, including the defendant s mens rea, BARD

Burden of Proof Insanity is an affirmative defense *After Hinckley, insanity was a defense in most states and the federal courts, whereby the prosecution had to prove the D s sanity BARD *Most states - D prove insanity by a preponderance of the evidence * Since 1984, federal courts - clear and convincing evidence

24

Issue/ Crime

MPC ALI (MPC) Test: Not responsible for criminal conduct if, at the time of the conduct, as the result of mental disease or defect, she lacked substantial capacity to: 1. Appreciate the criminality (or, moral wrongfulness ) of her conduct; or 2. To conform her conduct to the requirements of the law - Uses the term appreciate rather than know, to avoid a narrow interpretation of the M Naghten-like cognitive prong; Avoids the word impulse, ; and modifies both prongs of the test are modified by the words lacks substantial capacity

TPC

C/L Insanity Tests M Naghten Test: A person is insane if, at the time of her act, she was laboring under such a defect of reason, arising from a disease of the mind, that she: 1. Did not know the nature and quality of the act that she was doing; or 2. If she did know it, she did not know that what she was doing was wrong, i.e. did not know the diff. between right and wrong **wrong moral or legal, depending on the jurisdiction **Under moral-right-and-wrong standard, issue is not whether the D personally believed her conduct was morally proper, but whether she knowingly violated societal standards of morality Deific Decree doctrine: individual believes that she is acting on the direct command of God is legally insane Irresistible Impulse Test: a person is insane if, at the time of the offense: 1. She acted from an irresistible and uncontrollableimpulse

25

Issue/ Crime

MPC

TPC

C/L 2. She lost the power to choose between the right and wrong, and to avoid doing the act in question, as that her free agency was at the time destroyed; or 3. The D s will has been otherwise than voluntarily so completely destroyed that her actions are not subject to it, but are beyond her control Product Test: A person should be excused if her unlawful act was the product of a mental disease or defect. * jury would determine whether the disease caused the criminal conduct in a but-for-sense Federal Test: A person is excused if she proves by CCE that, at the time of the offense, as the result of a severe mental disease or defect, unable to appreciate: 1. The nature and quality of her conduct; or 2. The wrongfulness of her conduct - Cognitive incapacity must be total Effect of an Insanity Acquittal Automatic Commitment Discretionary Commitment y commitment hearing must be

26

Issue/ Crime

MPC

TPC

C/L held w/in 40 days of NGRI verdict, ruling which time the acquittee is detained in a mental hospital. If the offense involved BI to another, serious damage to property, or a substantial risk to either, she must prove by CCE that she is entitled to release Release After Commitment for Mental Illness Criteria for Release y entitled to release from a mental facility if no longer MI (even if she remains dangerous to herself or others) or is no longer dangerous (even if she continues to suffer form a mental illness) Length of Confinement y indeterminate length y may remain in a hospital for a longer period of time than she would have served in a prison had she been convicted of the crime Release Procedures y burden of proof is placed on the committed party to demonstrate that she is either no longer mentally ill or dangerous

27

Issue/ Crime

MPC

TPC y

C/L BOP varies from a preponderance of the evidence to CCE Commitment: Sexual Predator Laws Some states have sexual predator statutes that authorize civil commitment of individuals who are dangerous but who do not necessarily suffer form a mental disease or defect Not really a defense, but a rule of evidence Most states: allowed to permit evidence of an abnormal mental condition to negate the specific intent in a specificintent offense Minority: no evidence of DC at all Few states: person who commits a homicide and suffers from some MI or abnormality short of insanity may have offense reduced b/c of DC Child under 7: not capable of being responsible 7-13: rebuttably presumed incapable of forming culpable mental state Over 14: treated as criminally responsible adults A person, with the intent to commit an

Diminished Capacity: Mens rea version

D should be acquitted of any offense for which he lacked the mens rea, including those cases where he lacked mental state b/c of mental disability, whether permanent or temporary 4.02(1)

Evidence of mental deficiency that falls short of insanity allowed that would negate or rebut a specific mens rea for a crime w/ a specific intent

Diminished capacity: partial responsibility Infancy

Covered only under homicide statute where murder reduced to manslaughter if the homicide was the result of EMED for which there is a reasonable explanation or excuse 210.3(1)(b). Defense of immaturity: Under 16 not triable or convictable for offense 16 or 17: not triable or convictable unless juvenile court has waived jurisdiction or has no jurisdiction over them 2 elements:

NOT recognized

Not convictable under 15 unless: committed a minor violation or perjury cases where the minor understood the nature and obligation of his oath (8.07)

Attempt

A person commits an offense if, with

28

Issue/ Crime definition

MPC 1.purpose to commit the target offense; and 2.conduct constituting a substantial step toward the commission of the target offense (5.01) Factors strongly corroborative of the actor s conduct that shall not be held insufficient as a matter of law: y lying in wait, searching for or following the V to crime, possession of material designed for crim purpose. Merges w/ target offense

TPC specific intent to commit an offense, he does an act amounting to more than mere preparation that tends but fails to effect the commission of the offense intended

C/L offense, performs some act done towards carrying out the intent (2 intents) Action must constitute a substantialstep, beyond merepreparation moving to the point of perpetration b. Last act test c. Dangerous Proximity Test d. Physical proximity test e. Unequivocality/ RIL test f. Probable desistance test point of no return Merges w/ target offense Proof of commission of target crime establishes the attempt Felony, but treated as a lesser offense than target offense Usually about half the maximum allowed penalty FactualImpossibility not a defense

Attempt merger

Silent on merger but merging is assumed

Attempt punishment

Graded as same degree as the most serious offense that is attempted (5.05(1))

Graded one category lower than the offense attempted; if state jail felony, it s a class A misdemeanor (15.01(d))

Attempt Impossibility Defense

Factual impossibility - abandons the differences between factual and legal impossibility; D is liable for attempt when the means used by D and the surrounding circumstances, as viewed by the D himself, make such crime apparently possible. (5.01(1)(a))

Factualimpossibility not in statute, but case law says not a defense

29

Issue/ Crime

MPC

TPC

C/L

Inherent factual impossibility - allows the court to dismiss the prosecution in case of inherentunlikelihood of a criminal outcome (5.05(2)) Legal impossibility - recognized Attempt Renunciation Affirmative defense, if: 1. abandon effort to commit the crime or prevents it from being committed; and 2. conduct manifests a complete andvoluntary renunciation of her criminal purpose A agrees with such others that they or one of them will engage in conduct that constitutes such crime or attempt or solicitation to commit such crime; or Agrees to aid such other person or persons in the planning or commission of such crime or of an attempt or solicitation to commit such crime Legal impossibility - recognized Same as MPC

Inherent factual impossibility may be a defense (pop gun to shoot battleship)

Legal Impossibility defense based on legality principle No attempt if renunciation in the preparation stage If in perpetration stage, renunciation not a defense to attempt

Conspiracy definition

An agreement between the accused and one or more persons to commit a felony, coupled with and overt act by one or more of the conspirators in furtherance of the conspiratorial purpose. Agreement may be inferred

Agreement between two or more persons to commit a criminalactor series of criminal acts, or to accomplish a legal act by unlawful means A may be convicted of consp. before committing any act in perpetration of a substantive crime Specific intent offense all parties must have specific intent (no NARCS) Most often graded in relationship to contemplated crime (felonies = felonies)

Conspiracy Punishment

Graded at same level as object of the conspiracy (except 1st degree felonies)

Graded one category lower than the most serious felony that is the object of the consp.

30

Issue/ Crime

MPC

TPC

C/L Most states consp. to commit a felony is punished less severely than target offense DOES NOT merge into the attempted or completed offense that was the object of the conspiracy

Conspiracy merging

Conspiracy object Conspiracy Overt act Conspiracy mens rea

DOES merge, unless prosecution proves that the conspiratorial agreement involved the commission of additional offenses not yet committed or attempted (continuing course of conduct) Must be a criminal offense Overt act for 3rd degree felony or misdemeanor, no over act for 1st and 2nd degree felonies Must act purposefully to bring about target offense No recognition of the corrupt-motive doctrine Silent on intent for attendant circumstances

Silent on merging

Must be a felony Overt act needed for ALL felonies

DOES NOT have to be criminal offense, but can be immoral or wrong No overt act necessary

Must act with intent that a felony be committed (15.02(a))

Both parties must act with intent to commit target offense Corrupt-motive doctrine in some jurisdictions Some decisions hold no mens rea requirement as to attendant circumstances Natural and probable consequences doctrine must also be foreseeable.

Conspiracy Pinkerton Rule

Rejects Pinkerton

Conspiracy

No focuses inquiry on the culpability of

Recognized in 7.02(b) when: y Offense was committed in furtherance of the unlawful purpose; and y Should have been anticipated (foreseeable) Unilateral concept

Yes at least 2 persons possess mens rea

31

Issue/ Crime plurality requirement

MPC the actor whose liability is in issue rather than on that of the group of which he is alleged to be a part (unilateral concept) Impossibility no defense (5.03(1)) Same as MPC Abandonment affirmativedefense if: y Renounces criminal purpose y Thwarts the success of the conspiracy under circumstances demonstrating a complete and voluntary renunciation (5.03) Wharton s Rule not recognized Legislative-Exemption rule recognized b/c person isn t guilty if she was the victim of the prohibited conduct or if conduct was inevitably incident to its commission. (2.06(6)(a)-(b)) Since no plurality doctrine, person may be guilty of conspiring w/ immunized party (victim) (5.04(1)(b)) Commands, encourages or requests another person to engage in specific conduct that would constitute such crime or an attempt to commit such crime (5.02(1))

TPC Exception: If all but one of the coconspirators are acquitted, the last coconspirator cannot be convicted (15.02(c)(2)) (bilateral concept)

C/L

Conspiracy Defenses

Impossibility no defense Abandonment no defense where conspiracy is complete upon agreement. Withdrawer may avoid liability for future crimes

Wharton s Rule silent

Wharton s Rule recognized Legislative-Exemptionrule recognized (ex. Transporting women for the purpose of prostitution)

Since plurality doctrine applies, nonimmunized party may not be convicted Requests, commands, or attempts to induce another to engage in specific conduct that, under the believed circumstances, would constitute the felony or make the other a party to its 1. the request, enticement, urging, or encouragement by the soliciting person, 2. of another person, 3. to commit a crime 4. with intent that the solicited crime be

Solicitation definition

32

Issue/ Crime

MPC

TPC commission (15.03(a)) Affirmative defense (15.04) 1. persuaded him not to do so or otherwise prevented the commission of the crime, and 2. complete and voluntary ? but law requires the evidence to be strongly corroborative of both the solicitation and the actor's intent that the person act on the solicitation (15.03(b)) Same as MPC

C/L committed NOT a defense to solicitation

Solicitation renunciation

Solicitation not communicate d Complicity parties

Affirmative defense (5.02(3)) 1. persuaded him not to do so or otherwise prevented the commission of the crime, and 2. complete and voluntary Immaterial if the actor fails to communicate w/ person he solicits if his conduct was designed to effect such communication (5.02(2)) A person is guilty of an offense if it is committed by his own conduct or by the conduct of another person for which he is legally accountable, or both (2.06(1))

Solicitation MUST be communicated to other party Also requires that solicitor will not take part (i.e. do it FOR me) Felonies: parties divided into four categories: (1) principals in the first degree (2) principals in the second degree who were actually or constructively present at the scene of the crime and aided or abetted its commission; (3) accessories before the fact who aided or abetted the crime, but were not present at its commission; and (4) accessories after the fact who rendered assistance after the crime was complete PSD and ABF couldn t be guilty if PFD died, fled or was acquitted (shadow) Wife exempt from AAF liability

33

Issue/ Crime Complicity responsibility for conduct of another

MPC 1.Resp. when acting w/ culpability sufficient for the offense, he causes an innocent person to engage in conduct, 2. solicits another to commit, aids or agrees or attempts to aid another in the planning or committing, or 3. having a legal duty to prevent and doesn t Does not recognize

TPC 1. Resp. when acting w/ culpability sufficient for the offense, he causes an innocent person to engage in conduct, 2. solicits, encourages, directs, aids or attempts to aid the other person, or 3. having a legal duty and failing to make a reasonable effort to prevent commission Does not recognize in complicity, but recognized in Pinkerton rule (conspiracy)

C/L

Must actually aid in commission Aid doesn t have to be essential in commission

Complicity natural and probable consequences

Must be found an accomplice, then NPCD clicks in: accomplice liability for secondary offenses other than the one complicitor intentionally aided/ assisted. Must be reasonably foreseeable consequence of the primary offense corporation does not have capacity to commit a crime because a corporation is deemed incapable of forming mens rea.

Complicity Corporate Liability

Can be criminally liable if: 1.offense is a violation or has been defined by statute to impose corp liability and conduct performed by an agent during scope of employment, or 2.offense consists of an omission to discharge a specific duty of affirmative performance imposed on corps by law, or 3. offense was authorized or recklessly

A "person" includes individuals, corporations and associations. Thus, a corporation can commit any offense that is defined in terms of the conduct of a person. Board must be acting on behalf of the corporation and so must the agent. In addition, the agent's conduct must be

34

Issue/ Crime

MPC tolerated by high ranking manager Due diligence defense (2.07(5)) Human being similar to c/l No year and a day rule Person unjustifiably, inexcusably, and in the absence of a mitigating circumstance, kills another: 1. Purposely or knowingly 2. Recklessly, under the circumstances manifesting extreme indifference to the value of human life Abandons malice aforethought

TPC within the scope of his employment. Due diligence affirmative defense (7.24) Human being who is alive, including an unborn child at every stage of gestation from fertilization until birth Person commits offense if he: 1. Intentionally or knowingly causes the death of an individual; 2. Intends to cause serious bodily injury and commits an act clearly dangerous to human life that causes the death of an individual; or 3. Felony murder Abandons malice aforethought y Note: D may raise sudden passion evidence at punishment stage and must prove by preponderance of evidence (affirmative), then mitigated down to a 2nd degree felony (19.02(d))

C/L

Homicide def of human being Murder definition

Fetus must be born alive Year and a day rule Killing of a human being by another human being with malice aforethought; 4 types: 1. Intention to kill another human being (willful, deliberate and premeditated PA Model) 2. Intention to inflict grievous bodily injury (2nd degree in PA Model) 3. Depraved Heart murder Extreme reckless disregard for value of human life (2nd degree in PA Model) 4. Felony murder intention to commit a felony or attempted cmmsn where death results (specific felonies in PA Model) y Note: In PA Model, 1st degree also included statutorily specified (poison, lying in wait) Guilty of murder if a death results from conduct during the cmmsn or attempted

NO felony murder doctrine, but recklessness presumed

Felony murder

Extreme recklessness is presumed if the homicide occurs while the actor is

Actor commits or attempts to commit a felony, in the course of and in

35

Issue/ Crime

MPC engaged in, or the accomplice in the commission, attempted commission or flight from a dangerous felony in the statute

TPC furtherance of the commission, or in immediate flight from the commission, he commits or attempts to commit an act clearly dangerous to human life that causes the death of an ind. (19.02(d)) Committed recklessly (19.04)

C/L commission of any felony Authorizes strict liability for a death Independentfeloniouspurpose - BARRK An unlawful killing of a human being by another human being w/out malice aforethought Voluntary manslaughter: Intentional killing in sudden heat of passion as the result of adequate provocation Involuntary manslaughter: unintentional act that is the result of an act done in an unlawful manner and w/out due caution and circumspection y Provocationdefense (makes it involunt.) 1. Actor acted in heat of passion 2. Passion result of adequate provocation 3. No opportunity to cool off 4. Causal link btwn prov, passion and murder y cannot be words alone y must be defendant/ provoker (no

Homicide manslaughter

Committed recklessly (lesser than reckless murder which requires extreme indiff. To value of human life) OR Under influence of EMED for which there is a reasonable explanation. Reasonable expl. determined from viewpoint of a person in actor s situation (affirmative defense); incorporates: 1. Sudden heat of passion 2. Partial responsibility (diminished capacity) y Provocation not required y No cooling off rule y Can be words for jury instruct. y Need not be def/provoker (could be bystander)

Note: D may raise sudden passion evidence at punishment stage and must prove by preponderance of evidence (affirmative), then mitigated down to a 2nd degree felony (19.02(d))

Felony in 2nd degree

Felony in 2nd degree

36

Issue/ Crime

MPC Negligence NOT manslaughter

TPC Negligence NOT manslaughter bystander)

C/L

Negligent manslaughter inv. man (see below) Not recognized Not recognized Intoxication manslaughter 1. Operates a vehicle in a public place; and 2. Is intoxicated and b/c of intox causes the death of another by accident or mistake Criminally negligent homicide - Causes death of another acting w/ Criminal negligence ought to be aware of a SUR that the circumstances exist or the result will occur. y Gross deviation from the standard of care that an ordinary person would exercise (19.05) Misdemeanor manslaughter unintentional killing during the cmmsn of an unlawful act (like trespass) type of invol. manslaughter y contributory negligence not a defense

Homicide negligence

Assault

Negligent homicide should be aware of a SUR that the material element exists or will result from his conduct. y Actor s failure to perceive it, considering the nature and purpose of his conduct and the circumstances known to him, involves a gross deviation from the standard of care that a reasonable person would observe (210.4) Felony in the 3rd degree (1-5 yrs) Article 211

Does not recognize criminally negligent homicide, but when a person should be, but is not, aware that her conduct is very risky, killing would be involuntary manslaughter

State jail felony Chapter 22

Early Common Law Assault: A failed attempt to commit a battery coupled

37

Issue/ Crime

MPC Twin concepts of assault and battery are consolidated under assault Does not include the common law battery crime of offensive touching in its definition of assault Simple Assaultcovers 3 scenarios: 1. Attempting to cause or purposely, knowingly, or recklessly causing BI to another; 2. Negligently causing BI to another with a deadly weapon; or 3. Attempting by physical menace to put another in fear of imminent serious BI y misdemeanor, except that it is a petty misdemeanor when it is a fight or scuffle by mutual consent

TPC Similarly to MPC, assault and battery are consolidated under assault Divides assault into simple and aggravated ; simple assault is usually a misdemeanor; aggravated assault is usually a felony TPC Simple Assault committed in 3 ways: 1. Intentionally, knowingly, or recklessly causing BI (Physical pain, illness, or any impairment of physical condition to another person, including the spouse of the actor (misdemeanor); or 2. Intentionally or knowingly threatening imminent bodily injury to another person, including the spouse of the actor (C misdemeanor); or 3. Intentionally or knowingly causing physical contact with another when the actor knows or should reasonably believe that the other person will regard the contact as offensive (C Misdemeanor) Aggravated Assault(22.02) committed in 2 ways (with variations within each of

C/L with the present ability to do so y Attempted battery assault is a specific intent crime (specific intent to commit a battery In most common law jurisdictions, a criminal assault may be committed either by: y Attempt to commit a batterydoes not require apprehension on the part of the intended victim; following characteristics at common law: 1. Conduct amounting to an attempt to commit a battery, 2. With a specific intent to commit a battery 3. A. With a present ability to commit the battery (in a minority of jurisdictions) NOTE: In these jurisdictions, physical impossibility is a bar to conviction for the attempted battery B. With an apparent present ability to commit the battery (in a majority of jurisdictions) NOTE: In these jurisdictions, physical impossibility is NOT a bar to conviction for

Aggravated Assault takes 2 forms: 1. Attempting to cause serious BI to another or causing such injury

38

Issue/ Crime

MPC purposely, knowingly or recklessly under circumstances manifesting extreme indifference to the value of human life; or 2. Attempting to cause or purposely or knowingly causing BI to another with a deadlyweapon y Aggravated assault under (1) above is a felony of the 2nd degree; under (2) is a felony of the 3rd degree Related - Reckless Endangerment 211.2 y A person commits a misdemeanor if he recklessly engages in conduct which places or may place another person in danger of death or serious BI. Recklessness and danger shall be presumed where a person knowingly points a firearm at or in the direction of another, whether or not the actor believed the firearm to be loaded.

TPC those categories): 1. Assault plus causing serious BI Bodily injury that creates a substantial risk of death or that causes death, serious permanent disfigurement, or protracted loss or impairment of the function of any bodily member or organ to another, including the spouse; and 2. Using or exhibiting a deadly weapon during the commission of an assault y first degree felony when the victim or actor is a public servant or the assault is in retaliation against a witness, informant, etc Consent can be a defense under 22.06 y The victim s effective consent or the actor s reasonable belief that the victim consented to the actor s conduct is a defense to prosecution if: 1. The conduct did not threaten or inflict serious bodily injury; or 2. The victim knew the conduct was a risk of: His occupation, recognized medical

C/L attempted battery 4. The victim need not be aware of the threat; OR y Physical, not merely verbal, conduct committed with intent to create the expectation of bodily harm in another, When a person (D) has tried unsuccessfully to commit a battery upon a victim (V) without V being aware of the attempt, the position of the common law is that: y V has suffered no harm or injury and thus is not entitled to compensation under a tort theory, but y D has done an act sufficiently antisocial in its nature as to warrant the imposition of a criminal penalty upon him

39

Issue/ Crime

MPC

TPC treatment; or scientific experiment conducted by recognized methods - not available w/ gang initiation Incorporated under assault

C/L

Battery

Incorporated under Assault

Traditionally defined as the unlawful application of force to the person of another which results in bodily harm or offensive touching Result-oriented crime at common law Indirect injury (e.g., vicious animal) or touching will suffice application of force does not have to be intentional (recklessness may suffice) Assault merges w/ Battery Common law misdemeanor Elements: 1. Voluntary conduct by the actor, 2. A mens rea or culpable mental state, e.g., intent, recklessness, or gross negligence 3. A harmful result Stalking

Stalking

silent

(a) A person commits an offense if the person, on more than one occasion and pursuant to the same scheme or course

40

Issue/ Crime

MPC

TPC of conduct that is directed specifically at another person, knowingly engages in conduct, including following the other person, that: (1) the actor knows or reasonably believes the other person will regard as threatening: (A) BI or death for the other person; (B) BI or death for a member of the other person's family; or (C) that an offense will be committed against the other person's property; (2) causes the other person or a member of the other person's family to be placed in fear of BI or death or fear that an offense will be committed against property; and (3) would cause a reasonable person to fear: (A) BI or death for himself or herself; (B) BI or death for a member of the person's family; or (C) that an offense will be committed against property. 3rd degree felony; 2nd if prior stalking Sexual Assault (TPC) Must be w/out the victim s consent Person intentionally or knowingly a. Causes the penetration of the MASO of another person by any means, without that person s consent;

C/L

Rape Definition

A male is guilty of rape if acting purposely, knowingly, or recklessly, he has sexual intercourse with a female under any of the following: 1. Female is under 10 years of age 2. The female is unconscious 3. He compels the female to submit

unlawful carnal knowledge of a woman not the wife of the actor by force, fear, or fraud and without her consent.

41

Issue/ Crime

MPC by force or by threatening her or another person with imminent death, grievous bodily harm, extreme pain, or kidnapping 4. He administers drugs in a manner that substantially impairs the female s ability to appraise or conduct her conduct Consent is not an element Intercourse anal or vaginal This is a felony of the second degree unless a) In the course the actor inflicts serious BI upon anyone or, b) The victim was not a voluntary companion of the actor upon the occasion and had not previously had intercourse with him This would be felony of the first degree Consent is not element Anal, vaginal, or oral Gender specific male on female 2nd degree felony Unless:

TPC b. Causes the sexual organ of another person, without that person s consent, to contract to penetrate the MASO of another person, including the actor c. Occurs by force or threatened use of force the ( knows the vic. Has a mental defect and cont consent, vic. is unconscious, ( has given drugs

C/L

2nd degree felony unless aggravated or bigamy then 1st degree

Consent is an element Intercourse - anal, vaginal, or oral Gender neutral

Traditional: Lack of consent Only vaginal intercourse Gender specific male on female

42

Issue/ Crime

MPC D inflict SBI or V was not a voluntary social companion and had not previously permitted = 1st degree Gross sexual imposition covers sexual intercourse by a male on a female not his wife when: (1) He compels her to submit by any threat (violence not req d) that would prevent resistance in a woman of ordinary resolution; or (2) he knows that she suffers from a mental diseaseor defect that renders her incapable of appraising the nature of her conduct; or (3) He knows that she is unaware that a sexual act is being committed upon her or that she submits because she mistakenly believes he is her husband Sexual Assault (213.4) Misdemeanor A person who has sexual contact with another not his spouse if: a) Knows contact is offensive, or b) Knows person suffers from mental disease or defect =

TPC Penetration not defined

C/L Force required (threat of force or actual force) Resistance required old c/l Spousal exemption old c/l

Aggravated Sexual Assault : Sexual assault -PLUSa. Causing SBI or death to the vic. Or puts the vic. In fear of death or SBI, or kidnapping ORb. If the vic. Is under 14 or over 65 with out SBI, threats or death

Transition: Consent differs by Juris. Most Juris. Anal, genital, or oral Gender neutral Some juris. Have abolished resistance Force should only be an evidentiary issue

Romeo and Juliet defense (affirmative defense) a. when the actor was not more than three years older than the complainant b. and was not at the time required to register as a sex offender, and c. the complainant was fourteen years of age or younger

43

Issue/ Crime

MPC incapable of appraising nature of his conduct, or Knows V is unaware, or V is less than 10, or V is less than 16 and D is over 4 years older ,or V is less than 21 and D is the guardian, or V is in custody of the law, or detained in a hospital or instit. and D is supervisory or disciplinary authority over him

TPC

C/L

c) d) e) f) g)

Sexual contact: is any touching of the sexual or other intimate parts of the person for the purpose of arousing or gratifying sexual desire * If element V<10 , Mistake of Age NOT valid; otherwise, Reasonable Belief (by PoE) valid * Alleged offenses must be raised w/in 3 mos of act OR w/in 3 mos of parent learning See Gross Sexual Imposition See 213.3(1)(d): Corruption of Minors & Seduction: female induced to participate

Rape: Fraud

Fraud in Fact is a Defense

Fraud in the inducement: A seducer is not a rapist b/c the act of intercourse was consensual

44

Issue/ Crime

MPC by promise of marriage D does not intend to keep is rape

TPC

C/L Fraud in Factum: This deception is a fundamental aspect of the sexual act itself a mistake of fact as to consent would have to be honest, in good faith and reasonable.

Rape: Consent

See mistake (Note, however, that under Sec. 213.1 MPC, lack of consent in not a material element of rape.) Requires - may be circumstantial see 213.6(5) 213.6(4) must be brought to notice of pub auth w/in 3 months; or if V <16, w/in 3 months of parent/guard learning of off Partial marital exemption: not rape if the female is his spouse, unless they are formally separated and living apart, or if a couple is living as man and wife

See mistake of Fact

Rape: Corroboration Rape: Outcry Requirement Rape: Marital Immunity Rule

Does not apply if reported w/in 1 yr (38.07 CCP); no corroboration at all if V < 18 See 38.07 CCP

Did not require testimony of Victim is sufficient

Abolished marital immunity laws

Man cannot rape wife

*Husband can t be charged w/ rape of Wife but c/b accomplice to act (& convict d of assault or battery) Rape: Rape Silent regarding admissibility of evidence Shield Statutes of V s sexual history or reputation
Fed = R412 Fed. R. Evid.

R 412 Tex. R. Evid. Prior sex l misconduct admissible only in ltd circs

Recognized evidence is relevant if it has the tendency to prove or disprove any disputed fact at issue, including the credibility of the witness. But it is up to

45

Issue/ Crime

MPC

TPC

C/L the discretion of the judge Unlawful intercourse with a female, not the wife of the accused, who is too young to give effective consent.

Statutory Rape

When a male has sexual intercourse with a female not his wife and the female is less than 10 years of age.

Sexual assault if the actor intentionally or knowingly causes the MASO of a child under 17 years old 22.011(a)(2) Intent or knowingly a. Causes penetration of anus/sex organ of child by any means, OR b. Causes penetration of mouth of child by any means c. Cause sex organ of child to contact/penetrate MASO of other person, including D d. Cause anus of child to contact MASO of other person (including D) e. Causes mouth of child, to contact A/SO of other person (including D) Child = Person under 17 years Mistake of Fact (re: age) is NO Def. 25.01 D legally married and purports to marry or does marry person other than spouse (anywhere), or lives w/ person other than spouse in this state under appearance of being married . . . more there

In the sense that the prosecution does not have to prove a culpable mental state regarding the age element it can be said the MPC does permit strict liability with regard to specified sex offenses where the victim is under 10 (ten) years of age

213.6 (1) child is below the age of 10 mistake is not a defense Bigamy Same as C/L

C/L England, consent = 10 yrs; American between 14-18 Strict Liability MOF (even reasonable one) = NO Defense Contracting a 2nd marriage during existence of prior marital relation, or marrying of more than one spouse at the same time

46

Issue/ Crime Larceny definition

MPC Encompassed in theft by unlawful taking and disposition: 1. Unlawfully takes or exercises control over movable prop of another w/ purpose to deprive; or 2. Transfers immovable prop of another w/ purpose to benefit himself or another not entitled See above

TPC Theft crimes consolidated Theft: unlawful appropriation of property w/ intent to deprive the owner of the property

C/L Def: trespassory taking and carrying away of the personal property of another w/ the intent to permanently deprive the possessor of the property

Larceny trespassory taking

Uses appropriation: acquisition or exercise of control over the property

Trespassory taking: nonconsensual taking of possession of the property in question (if title, then false pretenses) Possession sufficient control over property to use it in a reasonably unrestricted manner (actual or constructive) Custody physical control over property, but his right to use it is substantially restricted by the person in constructive possession of the property Continuing trespass Doctrine: when a person takes possession of another person s property by trespass, every moment that he retains possession of it constitutes a new trespassory taking that continues until he terminates possession

47

Issue/ Crime

MPC

TPC y

C/L not guilty if D takes prop belonging to another based on a good faith belief that he has a right to possess the property specific intent negated even if unreasonable belief

Lost property: guilty if they don t take reasonable measures to restore prop to rightful owner (doesn t require a clue as to ownership unlike c/l) Larceny carrying away Eliminates asportation requirement only need unlawful taking or exercise of unlawful control Personal property of another: covers all property, such as real estate and movable property that includes things growing on or found in land Covers theft of service (unlike c/l)

Lost property: theft if the owner can be identified by ordinary means

Larceny personal property of another

Uses owner title possession (lawful or unlawful) or greater right to possession

Larceny intent to steal

Deprive (broader than c/l): a. To withhold property of another permanently or for extended time; OR b. Dispose of it so the owner may never recover it

Same as MPC

Lost property: - owner of property retains constructive possession of his lost property if reasonable clue to ownership of it when it s discovered Carrying away: asportation must be personal property, not real property y Any movement away from the point of caption sufficient Personal Property of another: immovable property doesn t apply items attached to land do not apply, but once severed from the land, they become personal property; services don t apply y Larceny even if the V had no right to possess the property in question Intent to steal (animus furandi) Intent to deprive another person permanently of the property. y if perishable, an intent to deprive the V of the property long enough to appropriate a major

48

Issue/ Crime

MPC

TPC

C/L portion of its economic value constitutes the requisite permanent deprivation Not a c/l offense 2or 3 basic ingredients: 1. D came into possession of the personal property of another in a lawful manner 2. D thereafter fraudulently converted the property 3. Most statutes D came into possession of the property as the result of entrustment by or for the owner of the property E comes lawfully into possession then fraudulently appropriated L trespass in the unlawful taking of the property E employee who receives property for his employer from a 3rd person receives possession, then converts property L employee who receives property from his employer for use in r ship obtains custody, and intends to steal If bailee entrusted w/ property possesses it, except that if the property is enclosed

Embezzlement

Encompassed in Theft by Unlawful taking (see MPC larceny)

Diff between embezzlement and larceny

49

Issue/ Crime

MPC

TPC

C/L in a container he obtains possession of container but only custody of its contents could be guilty of either depending on what he opens Recognized may be reasonable or unreasonable

Claim of Right defense

Theft by deception (MPC) / false pretenses

Affirmative defense when actor: g. Was unaware that the property or service was that of another; or h. Acted under an honest claim or right to the property or service involved or that he had a right to acquire or dispose of it as he did; or i. Took property exposed for sale, intending to purchase and pay for it promptly, or reasonably believing that the owner, if present, would have consented. 223.1(3) Person guilty of theft if he purposely obtains property of another by deception. A person deceives if he purposely: 1. Creates or reinforces a false impression, value intention or other state of mind, but deception as to a person s intention to perform a promise isn t inferred from the fact alone that he didn t subsequently perform the promise; or 2. Prevents another from acquiring info which would affect his judgment of a

Not recognized (silent) left up to the courts to decide whether to allow the defense to have a jury instruction

Theft by deception deception makes consent to appropriation ineffective 1. Creating or confirming by words or conduct a false impression of law or fact likely to affect the judgment of another 2. Failing to correct a false impress. 3. Preventing another from acquiring info 4. Selling or transferring prop w/out

Requires a false representation and transfer of title Mens rea uttered knowingly and designedly and w/ the intent to defraud

FP doesn t apply to misrepresentations regarding future conduct Nondisclosure of a material fact does not constitute false pretenses, even if the

50

Issue/ Crime

MPC transaction; or 3. Fails to correct a false impression which the deceiver created, or which the deceiver knows to be influencing another to whom he stands in a fiduciary or confidential r/ship or 4. Fails to disclose a known lien, adverse claim or other legal impediment to the enjoyment of prop which he transfers or encumbers in consideration for the prop obtained, whether such impediment is or is not valid, or is or is not a matter of official record. 223.3

TPC a lien 5. Promising performance that the actor doesn t intend to perform

C/L omitter of the info knows that the other is acting under a false impression - Does constitute misrepresentation if the omitter as a duty of disclosure (fiduciary relationship) Not guilty of FP if he obtains title to property by making a false claim that turns out to be true - Would be guilty of attempted false pretenses Expression of opinion uttered w/ intent to defraud another doesn t constitute FP Old C/L: corrupt collection of an unlawful payment by an official under color of office (threat or coercion NOT an element) Modern Statutory law: act or practice of obtaining property or something b illegal means, as by force, intimidation, or coercion Like robbery but threat is not immediate or unlawful Larceny or attempted larceny merge with

Extortion

Theft by Extortion (223.4): purp ly obtain 3dP s prop by threat of (a) inj to anyone or other crim off, (b) accuse O/P of criminal off, (c) expose secret tending to subj 3dP to hatred, contempt, ridicule, (d) take/w hold act as an off l, (e) bring/continue strike, (f) testify/w hold testimony, or (g) inflict any other harm AFF DEF: (to b, c, d) prop obtained was honestly claimed as restitution or indem

Same as Larceny (all theft crimes merged) coercion (1.07(9)): a threat, however communicated: (a) to commit an offense, (b) to inflict bodily inj in the future on the person threatened or another, (c) to accuse a person of any offense, (d) to expose a person to hatred, contempt, or ridicule, (e) to harm the credit or business repute of any person, or (f) to take or w/hold action as a public

51

Issue/ Crime

MPC for harm done in circs to which b, c, d relate. Property must be obtained or would be attempted theft

TPC servant, or to cause a public servant to take or w/hold action. Property must be obtained or would be attempted theft "Forge" means: (A) to alter, make, complete, execute, or authenticate any writing so that it purports: i) to be the act of another who did not authorize that act; ii) to have been executed at a time or place or in a numbered sequence other than was in fact the case; or iii) to be a copy of an original when no such original existed; (B) to issue, transfer, register the transfer of, pass, publish, or otherwise utter a writing that is forged within the meaning of Paragraph (A); or (C) to possess a writing that is forged within the meaning of Paragraph (A) with intent to utter it in a manner specified in Paragraph (B). Receiving or concealing stolen property: Commits an offense if he unlawfully appropriates property with intent to deprive the owner of property extortion

C/L

Forgery

With the purpose to defraud or injure anyone or with knowledge that he is facilitating fraud or injury to be perpetrated by anyone the actor 1. Alters any writing of another w/o authority 2. Makes, completes, executes, authenticates, issues or transfers writing so it looks like th act of another who did not authorized it 3. Or passes any writing he knows to be forged by 1 or 2

Statutorily made not C/L The false making or altering of a legally significant instrument with the intent to defraud May be seen as theft by deception

Receiving Stolen property

1. Receiving: guilty of theft if he purposely receives, retains, or disposes of movable property of another knowing that it has been

Statutory in nature (usually a fence) but basically means a person who, w/ the requisite mens rea, has knowledge that the goods are stolen, purchases the

52

Issue/ Crime

MPC stolen, or believing that it has probably been stolen, unless the property is received, retained, or disposed w/ purpose to restore it to the owner. Receiving means acquiring possession, control or title, or lending on the security of the property 2. Presumption of knowledge: requisite knowledge or belief is presumed in the case of a dealer who: a. Is found in possession or control of property stolen from two or more persons on separate occasions; or b. Has received stolen property in another transaction w/in the year preceding the transaction charged; or c. Being a dealer in property of the sort received, acquires it for a consideration which he knows is far below its reasonable value 223.6 Person guilty of robbery if, in the course of committing a theft, he: 1. Inflicts serious BI on another; or 2. Threatens another with or

TPC a. Appropriation of property is unlawful if: 2. The property is stolen and the actor appropriates the property knowing it was stolen by another31.03 3. property in the custody of any law enforcement agency was explicitly represented by any law enforcement agent to the actor as being stolen and the actor appropriates the property believing it was stolen by another (sting) D would be guilty of theft b/c of consolidation of theft offenses in TX: 31.02

C/L goods or assists the thief in dispossessing them

Robbery

In the course of committing theft and w/ intent to obtain or maintain control of the property, he: 1. Intentionally, knowingly or

Larceny + assault = Robbery From his presence: broadly defined

53

Issue/ Crime

MPC purposely puts him in fear of immediate serious BI; or 3. Commits or threatens immediately to commit any felony of the 1st or 2nd degree Felony in 2 degree Felony in 1st degree if actor attempts to kill anyone, or purposely inflicts or attempts to inflict serious BI 221.1
nd

TPC recklessly causes BI to another; or 2. Intentionally or knowingly threatens or places another in fear of imminent BI or death 29.01 2nd degree felony 1st degree felony if aggravated 1. causes serious bodily injury to another, 2. uses or exhibits deadly weapon, 3. causes BI or threatens to cause BI to 65+ or disabled

C/L Taking and carrying away of the personal property of another from his person against his will either by violence or threat of violence Fear must be of present harm Your money or her life still robbery

54