Criminal Law

Theories of Crime - Retributivism - looks backwards. o Look at the individual and what they did. o How bad were you? o So bad- you have to be punished. o Dont care about deterrence/rehabilitations- only want to punish. o Moral obligation. - Utilitarian - (Bentham) look forward. o What can society get out of the punishment. o Looking more at what is good for society. o DEF: Best policy is the one that does the most good for the most ppl. Purpose of Criminal Law o Deterrence General Deterrence to deter the public from commiting crime. Specific Deterrence - to deter a particular individual from committing crimes in the future. o Incapacitation to hold an offender in custody to prevent them from committing crime. o Rehabilitation - the process of seeking to improve a criminals character and outlook so that he or she can function in society without committing other crimes. o Retribution to pay back debt to society for crimes.

- Roles of the Courts

o Trial Court fact finder o Appeals Court - not fact finder; review case in light of the appellant, assuming all evidence is there, proof beyond a reasonable doubt.

- Classifications of Crimes
o Felonies possible penalties of more than 1 year. o Misdemeanors possible penalties of 1 year or less. Elements of Crime o Mens Res the mental aspect of the crime. o Actus Reus the actual commission of the crime.

HOMICIDE Common Law Murder 4 Types: - Intent to Kill acting with the want for the specific result of death.

Intent to injure acting with an intent to cause severe harm but resulted in death. Conscious disregard for life acting in a negligent way which shows a disregard for the risk of death. - Felony Murder death the is the result of or happened during the course or escape from a felony. o No particular Mens Rea is required. Ex. Defendant wanted to see his high school basketball team win the game, so he took out a gun and shot at the leg of a player on the opposing team. Defendant only wanted to hurt the player, but he unintentionally shot a player from his school in the chest killing him. Guilty of murder intent to injure but resulted in death. Common Law Manslaughter Voluntary having the intent to kill but with mitigating circumstances. - Heat of passion o Adequate Provocation: - What would provoke reasonable person, Spousal infidelity, Rape. o No reasonable cooling off period. - Imperfect privilege o Unreasonable belief that life is in danger o Use of excessive force in self defense, OR o D was initial aggressor Involuntary Manslaughter intended harm but not result of death by: o Gross Negligence disregard of reasonable standard of care. o Misdemeanor killing that is done during the course of committing or the result of a misdemeanor. Statutory Murder 1st DM - W,D,P o Willful intent to kill o Deliberate cooly consider ones options o Premeditated a second look. - Felony Murder killing that occurs during the commission of, as the result of, or escape from a felony. o Can be charged if death is result of inherently dangerous felonious crimes. o Inherently dangerous readily capable of killing someone. o Felony is not complete until suspects reach safe haven, any killing that happens before then they can be charged for. o Common enumerated felonies BARRK Burglary, Arson, Rape, Robbery, Kidnapping. o Majority - malice is presumed - Offender or agent must have done shooting

- Campbell: D and accomplice commit robbery and escape. Police

chase suspects. Officer kills one of the suspects, charged other suspect with felony murder. D was not guilty because officer was not agent of suspect. o Minority - Malice is not presumed and must be proven - Can be charged if felony was proximate cause of death. - Hypo: Officer shoots co-felon while escaping, other suspect can be charged with felony murder because felon was the proximate cause, but for the 2 committing the felony the co-felon would not have been killed. - Hypo Old lady walks in store while it is being robber, drops dead of heart attack. D can be charged with felony murder, because felony was the proximate cause of death. 2nd DM - intent to kill; or - intent to do grave bodily harm; or - conscious disregard for high risk of death Manslaughter Voluntary - adequate provocation - imperfect priviledge Involuntary - Gross Negligence - Misdemeanor murder Model Penal Code - Criminal homicide o Knowingly, - to be certain of all results. - Ex. F has argument with R and throws a stick of dynamite into the car. J is in the back sleep and F does not know this. Statute says if you knowingly kill another motorist with an explosive its a capitol offense. Is he guilty of Js murder. No because he did not meet the statutory requirement of knowingly killing, because he did not know J was in the back. o willingly, o recklessly, or o negligently causes the death of another human being. - Murder o Criminal homicide - Committed purposely or knowingly OR - Committed recklessly with extreme indifference

Manslaughter o Criminal homicide - Committed recklessly - Committed under the influence of extreme mental or emotional disturbance Negligent homicide o Homicide committed negligently

Rape - Common Law o Vaginal penetration o By a man against a woman o By force - Actual or threat of force - However slight o Against the victims will - Victim must resist - Rape Shield Laws prevent victims sexual past from coming into evidence. - Statutory Rape sex with a person under the age of consent. o Mistake or victim lying about age is not a defense. Criminal Sexual Assault - 1st Degree Sexual penetration with injury and aggravated offenses. - 2nd Degree sexual contact with injury - 3rd Degree Sexual penetration without injury - 4th Degree sexual contact without injury Miscellaneous Crimes Burglary - Breaking o Any movement of any door or window o CL: leaving window open is not breaking o Must not have permission or right to access - Entry o Even with objects that are extension of body. - Dwelling house o Must be occupied o Must be within curtilage of house - Of another - Night time - With intent to commit felony - MPC Burglary any occupied structure Modern Statutory Changes 1. Breaking element eliminated or retained as an aggravated circumstance definition of a dwelling house expanded to include most structures nighttime element

eliminated or retained as an aggravated circumstance intent element broadened to include the intent to commit a misdemeanor, or any theft offense, regardless of value. Assault - Specific intent crime - 2 Types o Attempted battery where battery attempt is made but not successful o Intended frightening do something to place victim in reasonable apprehension of imminent harm. - Requires that victim be aware of assault. Battery An unlawful harmful or offensive contact caused by the defendant with intent to cause a harmful or offensive contact or as a result of gross negligence. - An unlawful - Harmful or offensive contact - Caused by the defendant - With intent to cause a harmful or offensive contact - Or as a result of gross negligence - Does not require skin to skin contact Kidnapping - Movement type o Movement from one place to another o Done through force, fraud, deception or threats o Made against victims will or while victim unable to give lawful consent o Done without lawful authority - Secret Confinement o Secretly confined r imprisoned o Done through force, fraud, deception or threats o Confinement against will o Done without lawful authority Arson malicious burning of the dwelling house of another - Actus Reus o Dwelling house - Includes connected and adjacent structures within curtilage. o Some part of dwelling burned - Mens Rea o Must act with malice - Ex. J is fired by Farmer H. To get even he goes to Farmer hs barn and sets it on fire. L sees the smoke and puts out the fire. The barn is saved and only suffers charring. Is J guilty of arson. o Yes arson covers structures within the curtilage of dwelling house Actus reus

Failure to act o Failure to act where there is a duty to act. - Statutory - Status Parents, teacher, etc. - Contractual obligation Babysitter o Voluntary Assumption - Make matters worse attempt to help but only worsen situation. Push out of the way of car into path of bus. BOP on State to prove that but for the secondary accident the victim would not have died o Creation of a dangerous situation - Ex. Frat hazing ritual where they tie a piece of liver to a string and make the pledges swallow it. The string is there in case a pledge chokes they can pull it out. The president didnt like pledge 3 who he caught sleeping with is girlfriend. Pledge 3 chokes on his liver DP attempts to pull liver out but it cones off the string. VP does Heimlich but stops. Pres culpable for CL Murder for extreme disregard, 1DM under Statutory Modern Code, and Murder under the MPC for extreme disregard, if it can be proven that he intentionally loosened the string at highest can plead Manslaughter but likely IVM because he set up the event.

Theft Offenses Larceny trespassory taking and asportation of the personal property of another. - Trespassory: o Depriving the victim of the right to physical possession of the property without the victims consent (regardless of the defendants intent.). - Must be actual exercise of dominion Ex. A show B his shiny new quarters, A slaps his hand and makes B drop the coins into a drain. A is not guilty of larceny because he did not exercise dominion over the quarters. o Or, obtaining the victims consent by fraud (any fraudulent intent at the time of the initial transfer) - Distinguish from false pretenses o Or, accepting a mistaken transfer of possession with knowledge of the mistake, and the intent to take advantage of it at the time to the initial transfer. - If not aware of mistake no larceny. o Continuing trespass doctrine - If the initial transfer of possession was trespassory, the trespass continues, and a subsequently formed intent to steal will complete the crime.

Taking: o

The defendant must gain possession and control of the property. - Either directly or through an agent or instrumentality Carrying Away/Asportation: o Any movement of the property, however slight, for the purpose of carrying it away.

Personal property: o Common law strictly limited to tangible personal property o Modern trend has been to expand by statute to include most things of value that can be appropriated (i.e. possessed) - Of another: o The defendant must invade a superior possessory interest in the property - With intent to steal: o Means an intent to permanently deprive the victim of his/her possessory interest. *Defendants can be guilty of Burglary and Larceny when defendant enters home and steals but didnt intend to when entered.* Embezzlement conversion of personal property of another by defendant already in lawful possession with intent to permanently deprive. - Conversion o Exercise dominion or control over the property of another. - Personal Property - Of another - Lawful possession o substantial discretion and control over the property as a result of a trust relationship - Store managers etc. - With intent to permanently deprive. Larceny v Embezzlement - Custody but not possession = Larceny - Discretion, control, and possession = Embezzlement False Pretenses obtaining title to personal property of another by way of knowing misrepresentation of a material fact with intent to defraud. - Obtaining title o The ownership interest - Of personal property - Of another - Knowing misrepresentation - Of a material fact o Past or existing - With intent to defraud.

Robbery: - Common law larceny, plus - The taking of the property must be from the victims person or in the victims presence - The taking must be accomplished by the use of actual physical force, or an immediate threat of physical force - Continued offense continues until D reaches safe haven o Assault can occur at anytime - Larceny becomes robbery if there is a taking by force or use of force to effectuate escape. o Steal clothes from a store and on way home hit a pedestrian and kill them = Felony murder. Inchoate Crimes incomplete crimes that must be paired with a real crime. Attempt specific intent to commit a particular felon done with an overt act in furtherance of the crime. - Elements: o Mens Rea Specific intent to commit felony. o Actus Reus - overt act in furtherance - Substantial Step to have moved beyond mere preparation and are about to commit act. i.e. Moffet: D and accomplice tried to get victim to take pills and wine to kill her and write a false suicide note. Victim got away Ds apprehended. Going to house and beginning act was a substantial step. - Dangerously close to completion to be but one step from the completion of the act. i.e. attempting to rob a bank but when you get there and try to enter dressed in mask and everything but its closed. - Failure to complete to have made attempt at crime but failed to complete it. i.e. go to shoot someone and the gun is unloaded. - There must be an overt act otherwise it is just mere preparation. o Mere preparation where there is not enough evidence that a crime would have been committed had it not been stopped. Impossibility - Factual impossibility - where a crime cannot be completed because of some fact not known to the defendant. - Legal impossibility where an act committed is not a crime as recognized by the law. Abandonment where criminal changes mind and decides not to do crime. - CL does not recognize.

MPC recognizes when the person does it voluntarily, but not if they see a police officer.

Solicitation: asking, encouraging, and inducing another person to do a crime. - Classified as attempted conspiracy - Once there is agreement from the other party it merges with conspiracy. Conspiracy - According to majority and for exam purposes no overt act required. - Overt act required for federal cases. o Only one act is required. - Elements o Must agree - MPC: only 1 person must agree 1 person can conspire with their self. o Must intend to commit crime o Ends when safe haven reached. - Safe haven a place of harbor no matter how temporary. - Pinkerton Rule: Conspirators will be charged with full crime if committed. - Co-Conspirators are all guilty of any act done in furtherance of crime. o Act must be reasonably foreseeable. - i.e. co-conspirator stealing car to use as get away car. - Non Ex. Conspirators have car already but get away driver steals another without others knowing, all not guilty of car theft. - Conspirators will all be charged with conspiracy and the crime no merger. - Chain conspiracy even if co-conspirators are remote in connection if they all work toward the same goal of the completion of crime all are still guilty. - Wheel conspiracy even though several parties conspired with a common person unless there is a connection linking all parties together the spoke co-conspirators will only be charged with 1 count of conspiracy, and the hub conspirator gets charged with as many conspiracies that he set up. - Withdrawal only a defense when if actually communicated in time to stop crime. o Must take reasonable steps to prevent. o If there is valid withdrawal not culpable for crime that occurs. - Whartons Rule where the crime inherently requires two people there cant be a conspiracy. Accomplice Liability - Actors o Principal perpetrator or person who commits the crime. o Accessory before the fact assist with crime before commission but not present for actual commission. - Guilty of crime committed o Accessory during the fact assist with commission of crime - Guilty of crime committed

o Accessory after the fact assist with crime after commission. - Not guilty of underlying crime only accessory after the fact. MR: Must have specific intent to commit crime AR: Act, assistance, and encouragement. Must have MR and AR to be culpable

Mens Rea some morally blameworthy mental state or negligence is required to impose criminal liability. - Strict liability liability based on the commission of the prohibited act without regard to the defendants mental state. o Concurrence doctrine they must be a MR to do AR. - Transferred intent o GR. Cant mix the AR with the MR of another crime. - Exception: Felony murder. o Unintended victims the Ds intent will transfer to an unintended victim. - Motive GR: motive doesnt matter o Only good as evidence in circumstantial evidence cases o Can be a defense if sufficiently compelling. Mens Rea Defenses Competency never a defense just delays crime until D becomes competent. Insanity - MNaghten/ Right or Wrong test insanity is established if the D, was laboring under such a defect of reason, from disease of the mind, as not to know the nature and quality of the act he was doing, or if he did know it, that he did not know what he was doing was wrong. - Durham Test - D is not guilty if the action was the product of insanity. - ALI/MPC D is not guilty if at the time of such conduct as a result of mental disease or defect he lacks substantial capacity either to appreciate the wrongfulness of his conduct or to conform his conduct to the requirements of law. - Freeman Test/ Insanity Defense Reform Act o D guilty if he was unable to appreciate the nature and quality or the wrongfulness of actions. o D has BOP to prove insanity. o Expert witnesses cannot testify to the ultimate issue of the Ds insanity. - Guilty but Mentally Ill not a defense but a verdict. - Automatism D was not conscious when he committed act. - Diminished Capacity mental disability that does not rise to insanity. Intoxication - Voluntary when D intentionally ingest the intoxicating substance. o Can be a defense in Specific intent crimes, never in General intent. o General Intent v Specific Intent - Specific intent - D had, at time of crime, conscious intention to produce a conscious result.

- General Intent Crimes D, does not have to specific intent to commit the crime. Involuntary when D is not aware he is ingesting an intoxicating substance. o Affirmative defense.

Mistake of Law - GR no defense o Except o Ignorance/mistake where some other law negates a specific intent requirement. - I.e. buying a car and taking it without prior owners notice. Lacks MR for larceny. o Reliance on a formal opinion from a public official responsible for interpreting the law. o Crime committed prior to official publication of malum prohibita crimes. of Fact - Defense for specific intent crimes. o But MUST be an honest mistake of fact that negates intent requirement. - Defense for general intent/negligence crimes. o Must be a reasonable belief. - Not a defense for strict liability crimes. Excuses Duress defense to all crimes but murder - Elements o Absence of a voluntary act o Lesser of two evils - In order to claim there must be o Imminent threat of death of serious bodily harm. - Immediacy of threat must be threat of immediate infliction, upon the D, of death or serious bodily harm. Can be family or 3rd party. - Sufficiency of threat there must be a well grounded fear that the threat will be carried out. o Chose of lesser of two evils - MPC - it is an affirmative defense that D was coerced to act by use or threatened use of force against D or the person of another that a person of reasonable firmness in his situation would have been unable to resist. Defense not allowed if D recklessly placed himself in the situation. Necessity nonhuman circumstances forces you to commit the crime. - Not defense to murder - Downgrades murder to manslaughter - Elements

o Must be done to prevent a significant evil o No adequate alternative o Harm caused is not disproportional to the harm avoided o Good faith belief that the act was necessary o Belief must be objectively reasonable o D did not substantially contribute to the creation of Emergency Consent - victim of crime consented - i.e sodomy, assisted suicide. - Only a defense where lack of consent is an element. o Exceptions - Crimes explicitly defined in terms of lack of consent (e.g. forcible rape) - Crimes implicitly defined in terms of lack of consent (e.g. burglary, larceny) - Sports injuries (within rules of the game) Condonation victim forgives - NOT A DEFENSE. All criminal offenses are considered offenses against society. - Victim's forgiveness might be helpful in sentencing. Justifications Law Enforcement - Crime Prevention o Deadly force - force that is likely to cause death or serious bodily harm. - only to be used to prevent escape when the officer has reasonable belief D is threat to officer and others. o Non-deadly force force that is not likely, or not reasonably likely to cause death. - Not deadly force even if person dies as a result. Public Authority of a Private Citizen - General Rule - To avert a felony from being committed or serious harm to oneself, deadly force may be used. - Homicide is justified when resisting any attempt to murder, commit a felony, or do some great bodily harm upon a person; or when committed in defense of habitation, property, or person, against one who manifestly intends or endeavors to commit a felony. - Test 1) the overt elements of a felony were in fact present; 2) the taking of life was (or appeared to be) reasonably necessary in order to apprehend the fleeing felon. Defense of Habitation and Property - General Rule deadly force is not allowed in protection habitation or removal of property. o Only a defense if protecting or defending persons in habitation or on property. Self Defense

Deadly or non-deadly force can be used in defense of self. Aggressor if D is initial aggressor cannot use SD o Except: where D is initial aggressor but withdraws from fray. - Proportionality - Forces must match deadly:deadly, non-deadly: non-deadly - Reasonableness at time of incident D must have a reasonable belief threat is imminent. - Imminent threat must be imminent at time force used. - Duty to Retreat must retreat unless in home or place of business - SD Analysis 1. Who was the initial aggressor? 2. Was the D's response proportionate? 3. Was it imminent? 4. Could D have retreated Defense of Others - CL: a man could defend his property. Concept extended to wife, children and other family and household members. D could use lethal force in some circumstances. - Modern rule: defense of others is not limited to family members. A person may defend any other person even unto the use of deadly force if necessary. - Act at your own peril/aka stand in the shoes of the other person (MINORITY RULE) D has a right to go to the defense of another person to the same extent that the other person has a right to defend himself. - Reasonable appearances rule (MAJ) D is excused if D reasonably believed the other person to be in immediate danger of death or serious bodily harm. Imperfect Privilege an unreasonable belief that self or other is in danger. - Maj would charge with manslaughter. Entrapment D committed crime because of inducement. Standards - Subjective did police cause an otherwise innocent person to commit the crime charged 1) Was D predisposed to commit the crime before govt officials induced him? Most entrapment claims in the federal courts fail on this prong. o Predisposition = D's willingness to commit the offense prior to being contacted by govt agents 2) Govt agents induced the crime o induce = govt creates a special incentive for the D to commit the crime. - Objective looks at police conduct. Due Process where police conduct rises to a level of wrongdoing that may offend due process