1 CRIMINAL LAW OUTLINE- Professor Bretz I. INTRODUCTION A. Purposes of Criminal Law Why do we punish? 1.

) Deterrence- prevention of offenses y Specific Deterrence- punishing that individual o More Retributive o More subjective y General- making that person an example to others o More Utilitarian o More objective (reasonable person standard) Utilitarian (Bentham)- look forward. What can society get out of this punishment? Look at what is good for society. What good is it going to do to punish? Will it deter? Rehabilitate? -Punish people to deter others with hope to rehabilitate US v Blarek- 2 interior decorators were found guilty of money laundering for a drug cartel. They did not have any Criminal History BUT the sentences imposed follow statutory case law mandates requiring these defendants to be treated harshly, primarily to deter others y DETERRENCE- #1 justification in this case Retributivism (Kant) looks backwards. Look at the individual and what they did. How bad were you? So bad- you have to be punished. Don t care about deterrence/rehabilitations- only want to punish 2.) Incapacitation y Getting the person off the street so they won t endanger others. y Physically or otherwise preventing people from perpetrating future crimes. (incarceration) 3.) Retribution y giving an individual who has broken the law his or her just desserts, o in part because morally this is the right thing to do, and o in part to channel the human instinct for revenge through the criminal justice process 4.) Rehabilitation y Changing the behavior or those who have broken the law so that they will not commit more crimes when they are released B. Crime Classification 1.) Felonies: Possible penalties: more than 1 year a. Malum in se: wrong in itself (Ex. Murder, rape, robbery) b. Malum prohibita: bad because they are prohibited  statutory law made by court (ex. gambling, traffic offenses)

2 2.) Misdemeanors: Possible penalties of one year or less C. Every Crime has two Parts 1.) Mens Rea o Mental guilty mind (differentiates the crime) o Ex. 1st degree murder different from 2nd degree-based on leaving an element out 2.) Actus Reas o Physical o Causing ______ to another II. Homicide y A legally mutual term y The killing of a human being by another human being y May or may not criminal o Criminal homicide- homicide committed w/out justification or excuse  There needs to be death of a HUMAN BEING  The must be the person who caused the death o CORPUS DELICTI RULE- burden on the -prosecutor must prove  A living human being has died- death (Need the body)  As a result of another s criminal act (i.e. criminal agency) o Circumstantial Evidence Must be Reasonable  Evidence which does not directly make guilty but it is inferred;  Can prove corpus delicti  2 types of Evidencey Direct (saw A shoot B) y Indirect (heard a gunshot- went into room and saw A holding gun and B dead on floor- smoke from gun) CIRCUMSTANTIAL EVIDENCE

Downey v People: Corpus delicti can be met by circumstantial evidence. The fact that he had a bloody shirt & he knew where the body was, was enough to prove that he could of killed her: corpus delicti met Warmke v Commonwealth: The body does not need to be found. Circumstantial evidence can prove corpus delicti. Here- people had seen her with the baby, she was not from town, she returned the jacket, and she didn t meet her friend and her baby was a bastard. Later the baby was nowhere to be found. From these facts one can infer that the baby had died. Corpus delicti was met. In a case where the police find a body with a shot in the head, a confession from someone else in reference to that crime can establish corpus delicti. A. Three Categories of Homicide 1.) Common Law objective (reaper-reasonable person standard) y Judge made law y Common Law Crimeso BARRKS (Burglary, Arson, Rape, Robbery, Kidnapping, Sodomy)

3 2.) Statutory Approaches 3.) Model Penal Code- subjective (individual culpability) y A group of statutes y Get rid of Common law B. Three Groups of Common Law Murder 1.) Malice afterthought- The Mens Rea element y Can be express or implied (kinds of mental states) y All murder requires some sort of Malice y Can be toward a group or specific individuals 2.) Involuntary Manslaughter 3.) Voluntary Manslaughter 1.) 1.) Malice Afterthought (also needed for statutory Second degree Murder) subjective mental state-reaper (look at the person individually MALICE- the intentional doing of any wrongful act, which results in a likely death of a human y Anyone of the following 3 mental states 1.) Intent to kill 2.) Intent to do great bodily harm (GBH); or 3.) Intentional (i.e. knowing) creation of a very high risk that death or great bodily harm will occur (aka Depraved Heart) 4.) FELONY MURDER 1 &2 Intent to Kill and Intent to do GBH o Malice Implied (based on surrounding circumstances) ******Totality of the Circumstances******* Depraved Heart/Wanton- Consciously disregarding of the very high likelihood that your actions could kill someone or seriously injure them. (any idiot would know) a) Conscious/reckless disregard o The intentional creating of some risk o In King case- guy shoots out the tires- ends up killing the guy b) Very high risk of death (Banks case) c) Of which the actor is unaware d) Without excuse, justification, or provocation

3.

Banks v State: shot into a train and did not intend to kill someone. However, the fact that he acted recklessly and had a disregard for life meant that he met the threshold of malice through depraved heart since his behavior had a high probability of killing someone. 4. FELONY MURDER y An unattempted death during the commission or attempted commission of another felony (BARRKS)

Merger Doctrine- a lesser crime merges with a higher crime

4 2.) Involuntary Manslaughter -Objective test (reaper- reasonable person standard) y either with or without awareness has created a substantial and unjustifiable risk of death y d causing death of another

2 things that distinguish Involuntary Manslaughter from Murder: 1.) Those that are not murder b/c the was not aware (unconscious) of the very high risk of death: AND 2.) Those where the actual risk of death was less than required for murder FOCUSES ON: 1.) Those cases where there was mere carelessness, inattention or mistake in judgment; AND 2.) Those cases in which the risk of death was too remote (distant) Mens Rea: GROSS (i.e. Criminal) NEGLIGENCE y An extreme negligence of what a reasonable person would have done y Doesn t include conduct intentionally harmful or recklessly disregardful of an interest of others o Ex. put you cig by gasoline at gas station 3.) Objective mental state a. Negligence is departure of what a reasonable person would have done b. Gross negligence is an EXTREME departure of what a reasonable person would have done 4.) Something less than intentional creation of a very high risk, but greater than ordinary (i.e. tort) negligence y Copus delicti + criminal negligence = INVOLUNTARY MANSLAUGHTER ELEMENTS 1.) Reasonably forseeable y Using a weapon is reasonable forseeable- some harm will occur 2.) High degree of risk 3.) The s actions were socially unacceptable 4.) Substantial deviation from how a reasonable person would act People v Rodriguez- Lady left her home with her kids inside. The house caught on fire and one of the kids died. Although she was found guilty of involuntary manslaughter, it was later reversed and remanded for a new trial because in a case of inv. manslaughter the criminal negligence of the accused must be the proximate cause of death State v Hardy- In this case he was charged with involuntary manslaughter because he did not have malice but had a reckless disregard for life and his actions could have a foreseeable risk. His gunfire was the proximate cause of death therefore he was criminally negligent. 3.) Voluntary Manslaughter y Intentional murder where malice is removed by legally adequate provocation y 3 elements 1.) Heat of passion 2.) Legally sufficient Provocation

3.) No reasonable cooling off period Distinguishing Characteristic: a.) Intentional (M1, M2 or Voluntary Manslaughter) b.) Unintentional (M2, Involuntary) Reducing an Intentional killing down from murder to Voluntary Manslaughter: a.) HEAT OF PASSION: a descriptive term defining the reaction of a person to an incident. Person reacted in an agitated and emotional state to the incident. Any intense emotional excitement of the kind of prompting violent and aggressive action such as rage, anger, hatred, etc. This emotional state of mind must be of such a degree as would cause an ordinary man to act without reflection for there to be a legal provocation. Provocation: Looks to what provoked the to kill another. A provocation is adequate if it is calculated to deprive a reasonable man of self control and cause him to act out of passion rather than reason. 1.) Reasonable provocation; and 2.) No cooling off period NOTE: Words alone cannot be reasonable provocation unless the words are informative of the crime State v Grugin: Case is about man finding out son-in-law raped his other daughter. Usually words are never enough because people love to insult each other. However son-in-law used information words like I am going to keep doing it and you can t stop it. This was enough of a provocation. OR Imperfect Privilege (DEFENSES) 1.) Unreasonable belief that life is in danger 2.) Use of excessive force in self-defense; or 3.) was the initial aggressor 4.) Felony Murder y Common Law: any death caused by a during the commission, or attempt to commit any felony as CL law murder, regardless of whether the intended to kill, intended to do GBH, or intentionally created a very high risk that death or GBH would occur (gross negligence)  Malice must be proved y MODERN VIEW (not common law): Limits the felony-murder rule to enumerated or inherently dangerous felonies (BARRKS)

Note: the state of Michigan includes BARRKS as well as shoplifting, larceny, and drug dealing.

C. Statutory Murder 1st degree y Willful, Deliberate and Premeditated Murder a.) Willful- Intent to kill b.) Deliberate-Considers his/her options a. Speaks to the quality of the thought process b. Intention accompanied by a conscious mind of its own purpose and design c.) Premeditated- a second Look a. You have intent to kill AND b. You think about it c. Any interval of time between the forming of the intent to kill and the execution of the intent to kill which is of sufficient duration for the accused to be fully conscious of what he intended

To DETERMINE premeditation and deliberation: LOOK AT y Planning activity y Motive y Manner of Killing People v Perez: Strong evidence based on his manner of killing (used one knife and when he broke, used another). THIS IS THE SAME AS RELOADING A GUN- proves you had time to reflect on your actions. After his stabbing- he searched dresser drawers, jewelry boxes, changing of a band aid on bloody hand, etc.- this is inconsistent w/a state of mind producing a rash, impulsive killing. Manner of killing- his aggressiveness and excessive force. Planning activity- parked down the street. People v Lewis: shot intentionally after a disagreement. said Damn you, I ll teach you to fight me (shows intent). There was sufficient time between intent to shoot and shooting and he was fully conscious of the shooting. He said Don t go to the doctor. Let him die (premeditation)- a second look. Since he did not want a doctor to come and he could have saved s life, but he did not intend to. He was deliberate in his thought process. Second Look Theory: After you attack someone you go and look for another weapon. This will make it premeditated 1st degree murder. y 2nd degree y y y y Intent to kill OR Intent to do GMH, OR Depraved Heart, OR Felony Murder Subjective Mental state

Pennsylvania 1st degree murder: 3 categories 1.) Morally heinous such as poison or lying in a wait 2.) Willful deliberate and premediated 3.) Felony Murder Any killing that does not fall in the above are considered second degree murder. Felony Murder: y Killing during the commission of a life endangering felony- malice is replaced by the felony a.) FM: ordinarily is classified as an alternate form of 1st degree murder b.) Majority of States: prosecutor does not have to prove the intended to kill, intended to do GBH or intentionally created a very high risk that death or GBH would occur (but some states do make prosecutor prove 1 of these) c.) The underlying felony must be independent of the death producing the act Michigan Law: If you are an accomplice, you are guilty of felony murder. Just need malice. Some states: Felony Murder is considered 1st degree Murder and also considered premediated. Michigan has common law felony murder. Agency Theory: a participating felon is not guilty when the killing is done by a person other than the participating or his co-felons. Proximate Cause Theory: Each is the agent of each other and the acts done are therefore the acts of each and all. Temporary Safety: The crime is in continuance until the safety (a home) where the crime is over. s have reached a point of temporary

State v Mayle- (temporary safety) 2 men robbed at McDonalds, they then went to a gas station and killed a man. Since they had not reached a point of temporary safety this was considered felony murder b/c of the continuance of the crime. Campbell v State- (agency theory) The 2 men were involved in robbing a cab driver. After they robbed him the police came and shots rang out, and one of the robber was killed. The other robber would not be charged w/felony murder because of the agency theory doctrine. People v Caldwell- (proximate cause) 3 men robbed a churches chicken. When the police came the shots rang out and one of the robbers was killed by a cop. In this case the robbers would be guilty of felony murder b/c of the proximate cause theory, they were the ones who started and invoked the crime.

D. Model Penal Code (MPC) y No Degrees y Subjective and FOCUSES on Individual culpability without regard to social policy (CL) y Three types of Crime A. Murder (PKR) 1.) Purposely OR  Conscious objective of causing the death of another 2.) Knowingly OR  engaged in conduct that death was practically certain to result 3.) Recklessly manifesting an extreme disregard for human life  engaged in conduct with a conscious disregard of a substantial and unjustifiable risk and extreme indifference to human life B. Manslaughter (mens rea) 1.) Recklessly (Involuntary) AND 2.) Extreme emotional disturbance with reasonable explanation (VOL) y Objective- reasonable explanation y Subjective- the actors state of mind the situation C. Negligent Homicide (never the right answer)

REMEMBER! MPC- more concerned w/personal culpability and the Common Law is more social lawful policy. In self defense: You are allowed to take another s life if you honestly and reasonably believe your life is in danger by that person MPC: You don t have to be reasonable: Juries are the reasonable people- they will decide State v Dumlao- Man shot his mother in law, the trial: court gave him conviction of murder, he appealed under the ground that he was emotionally distressed (thought of his wife having relations with her relatives) and has physiological disorders. An expert witness testified on his behalf. Since this was an MPC state, the Ct ordered a new trial with an instruction of manslaughter. Since MPC is subjective-the court looked at his circumstances and his state- his punishment based on his moral culpability. D. Misdemeanor Manslaughter 1.) Common Law: any death caused by a during the commission or attempt to commit any misdemeanor as involuntary manslaughter, regardless of whether the prosecution would prove that the s conduct was grossly negligent Modern view: limits the misdemeanor- manslaughter rule malum in se (inherently wrong misdemeanors)

2.)

III.

Criminal Assault (2 forms) A. Attempted, but Unsuccessful Battery (Type Assault) 1.) An intent to cause a harmful/offensive contact is required (gross negligence is insufficient) 2.) Present ability- states split 3.) Apprehension by the victim is not required 4.) The attempt must come very close to completion (i.e. beyond mere preparation)

Actus reus- some act or conduct by the w/the present ability to commit it y He has to be w/in range (can t call you on phone and say I m going to beat you up) y Or try to do it Mens rea- specific intent to commit the battery y The victim does not have to be aware of the battery y Goal: overall social protection B. Apprehension/ Frightening (Type Assualt) 1.) S conduct must actually cause the victim to be apprehensive that he/she is about to suffer an imminent harmful/offensive contact 2.) Victims apprehension must be objectively reasonable 3.) must intend to cause apprehension (gross negligence insufficient) Actus Reus- must create a reasonable apprehension y You intend to shoot them Mens Rea- specific intent to put the victim in an apprehension of an imminent battery y Must be AWARE of the imminent threat Harrod v State- guy throws hammer at boy. Have to have a reasonable apprehension. The child was not aware of the situation, therefore he did not have fear. Commonwealth v Matsos- Stalking type of assault. Includes both unsuccessful battery and frightening types of assaults.

10 IV. BATTERY (general intent) A. 4 Common Law elements Actus Reus 1.) Unlawful, harmful actual touching, OR y Injury not required 2.) Harmful OR Offensive Contact y Judged by a reaper standard (objective) Mens Rea 3.) Criminal Negligence, OR 4.) General Intent to cause the harmful or offensive contact y Rationale: to protect personal bodily security and prevent breaches of the peace

Broken down 1) An unlawful 2) Harmful or offensive contact 3) Caused by the 4) w/intent to cause a harmful or offensive contact a. or as a result of Gross Negligence Government of Virgin Islands v Stull- bouncer was accused of battery when throwing a customer out of the bar. Reasonable degree of force is allowed to owners of public places and can request the departure of patrons using a reasonable degree of force. US v Bell- guy in detoxification ward raped a lady in the hospital. Guilty of unsuccessful battery b/c the victim was not aware of what was going on. V. y RAPE/CRIMINAL SEXUAL CONDUCT (CSC) Common Law (i.e. forcible) Rape 1.) Penetration, however slight, by a man of woman s genitalia 2.) Against the victims will (i.e. without the victim s consent) 3.) Spousal exception

First Degree Rape- INTENT to commit rape Second Degree Rape-The person engages in sexual intercourse with another person A. By forcible compulsion B. When the victim is incapable of consent by reason of being physically helpless or mentally incapacitated OR C. When the victim is disabled and the perpetrator is a person who is not married to the victim and who has supervisory authority over the victim

11 State v. Walden- 2 guys were wrestling and one guy placed the other in a headlock and threatened his life. He forced him to perform oral sex. Established no gender requirement by forcible compulsion (physical force which overcomes resistance, or a threat, express or implied, that places a person in fear of death or physical injury to herself or himself or another person, or in fear that she or he or another person will be kidnapped) y Criminal Sexual Conduct 1.) Expansion to include other non-consensual sexual acts 2.) Classifications into degree Michigan Criminal Sexual Conduct Require Penetration 1. Aggravated plus other circumstances  Ex. kid was under 13  Anyone in authority Aggravated plus other circumstances Penetration with force (not aggravated) Sexual Contact by force/coercion  No penetration  No injury (like pregnancy or STD)  This is unwanted sexual contact y For sexual gratification UP TO LIFE SENTENCE

Sexual Contact Require Penetration Sexual Contact

2. 3. 4.

UP TO 15 YEARS UP TO 15 YEARS UP TO 2 YEARS Many young men guilty of

3.) Elimination of sexist anachronisms a. Corraboration of the victim s testimony not required b. Resistance by the victim not required c. Evidence of the victim s past sex life Limited d. Perpetrator and victim gender neutral e. Modification or elimination of Spousal exception y Statutory Rape 1.) Sexual penetration of a victim under the age of consent 2.) Regardless of whether the victim consented. Consent itself is not a defense. a. If victim is under 13- automatically I degree if penetration b. If 13, 14, 15, penetration is III degree OR I degree if is member of the same household/related by blood or affinity/actor is in authority or an administer in a non public school

12 State of Interest of M.T.S.-girl was 15 and was sleeping. Guy who was living w/her and her mother was 17 (MTS). He penetrated her while she was sleeping and once she realized he did this she slapped him and told him to get off of her. Since she was asleep she could not consent. Commonwealth of Pennsylvania v. Berkowitz- Female college student went to her friend s dorm room, and his roommate was there. He did not use physical harm, and she didn t say no so it wasn t forcible coercion. NO rape. y Criminal Sexual Conduct of AN Adult y Penetration by force/coercion- assumes its against the persons will y Automatically III degree y What bumps it to I degree/II degree? y SERIOUS BODILY INJURY y DURING A FELONY/or has a deadly weapon y If you suffer mental anguish y Developmental Disability y Mental retardation y Or any other closely related

CSC TERMS y sexual contact - includes touching another s intimate parts or actors intimate parts, or the clothes covering the intimate parts y sexual intercourse - includes: cunnilingus, fellatio, anal intercourse, (however slight, of any part of a persons body, or any Object into the genital/anal openings of another persons body)

y y y y y

*Intimate parts*- include buttocks, thighs ***COUNT EVERY PENETRATION AND EVERY CONTACT SEPARATELY*** **if there is battery/assault- merges with sexual conduct** **felatio requires penetration/cunninlingus does not) in - penetration , on - contact

13 VI. A. Burglary- Specific Intent Crime Common Law Burglary- elements (know what they all mean) 1.) Breaking y Even if door is open, and you push it further, meets element 2.) And Entering y If the front door is open but you open another door in the house- burglary 3.) the dwelling house 4.) of Another 5.) In the Nighttime 6.) With intent to commit a felony therein at the time of breaking Modern Statutory Changes

B. 1.) 2.) 3.) 4.)

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

Woods v. State- people hadn t moved into their house yet. Since they hadn t moved in yet there were no dwellers. It is not yet a dwelling house. State v. Neff- people broke into a chicken house. Curtilage area immediately adjacent to the home which is necessary for the activity and functions of the home. No burglary b/c the chicken coop was across the street, and wasn t technically a dwelling. Davis v. Commonwealth- girl knew people and had keys. There is a constructive breaking when an entrance has been obtained by threat of violence, by fraud, or by conspiracy. Actual breaking needs some force however slight. She can only be guilty of larceny. Walker v State- guy stole corn using a tool. Using a tool that broke and entered the dwelling and was used in the commission of the felony, this formed the intent to burglarize. If the tool was not used to commit a felony, then it could not form the intent. Goldman v Anderson- guy broke into real estate office w/the bar next door. General intent is intent to do physical crime. Specific intent is a goal beyond the physical act. State v Mann- Salvation Army case. Structure is any building, object, vehicle, railroad car or place with sides and a floor, separately securable from any other structure attached to it and used for lodging, business, transportation, recreation or storage. The property was not abandoned b/c it was in possession of the Salvation Army.

14 VII. ARSON

A. Common Law Elements 1.) Malicious 2.) Burning (need actual burning) 3.) Of the dwelling house (can be part of the structure) 4.) Of Another B. Modern Statutory Changes 1.) Definition of a dwelling house expanded to include other structures 2.) Of another requirement eliminated ACTUS REUS: y Dwelling house of another y Some part of the dwelling house must be burned (or charred) MENS REA: y must have acted Maliciously

VIII.

KIDNAPPING Early Common Law: Kidnapping limited to moving the victim

y y y y

MANY WAYS TO COMMIT If you FORCIBLY interfere with the freedom of movement Can be specific or general intent If statute adds with intent to, this is usually specific intent

Hypo: You come to my house voluntarily and come to my wine cellar and I shut you in. I confined you secretly, even if it was your own house. 1.) Can be forcible movement 2.) Forcible confinement o Does not require specific intent 3.) Secret confinement Hypo: If I specifically confine you with intent to collect ransom, this is specific intent **Important Kidnapping Rule**: Merely Incidental Rule o Any forcible asportation against someone s will is kidnapping o Unless that movement/asportation is merely incidental to the submission of another equally offensive offense (if it is done for the purpose of commiting an equal serious offense)- another BARRKS crime- arson, robbery, rape, burglary

15 *False improvement is absorbed by the kidnapping* (All F.I. is included in the Kidnapping)* IX. Theft Offenses (Specific Intent)

A. Historical Progression 1.) Common Law Larceny 2.) Statutory Gap fillers a.) Embezzlement b.) False pretenses B. Common Law Larceny- Specific Intent Crime 1.) Trespassory a. Depriving the victim of the right to physically possession of the property without the victims consent (regardless of the s intent.) b. OR, obtaining the victim s consent by fraud (any fraudulent intent at the time of the initial transfer) c. OR, accepting a mistaken transfer of possession with knowledge of the mistake, and the intent to take advantage of it at the time of the initial transfer d. Continuing Trespass Doctrine: y If the initial transfer of possession was trespassory, the trespass continues, and a subsequently formed intent to steal will complete the crime

2.) Taking a. the must gain possession and control of the property 1.) Either directly or through an agent or instrumentality

3.) Carrying away (Asportation: moving something) a. Any movement of the property, however slight, for the purpose of carrying it away Does not necessarily have to be taken OUT of the store. b. Modern trend has been to expand by statute to include most things of value that can be appropriated (i.e. possessed)

16 4.) Personal Property a. Common law strictly limited to tangible personal property b. Modern trend has been to expand by statute to include most things of value that can be appropriated (i.e. possessed) 5.) Of Another a. The must invade a superior possessory interest in the property

6.) With intent to steal (intent at Common Law must be at time of the carrying away) a. Means an intent to permanently deprive the victim of his/her possessory interest

Larceny Involves 2 Types of Taking: 1.) (Larceny) stealth and trick- you tricked the person- lied to them 2.) (Robbery) force C. Different Types of Larceny

1.) Custody: employee does not get possession according to the law, when the employee sells or converts the property for his own use 2.) Larceny by trick: no turning over of possession because the person would not have done so if they knew the thief s true intentions 3.) By mistake: if they received rightful possession when he accepted the property then no larceny 4.) Taking property by accident: continuous trespass as long as he has the property or if he sells it

STATE V COHEN: People can commit larceny if they take their own property. - having her fur coat Repaired- took it back by trying it on and refused to return or pay for it. PEOPLE V WALKER: People can commit larceny if they steal from a dead person because dead people have heirs. police officers including one that was pretending to be drunk were positioned near the intersection. Drunk was laying face down and had marked bills in wallet and came and took wallet. CUMMINS V COMMONWEALTH: Using a 3rd party- one can commit larceny because of the asportation needed to commit larceny man who didn t have pigs and offered other man s hogs and pigs.

17 KING V PEAR: Larceny by trick: even though you borrow a horse for a trip and then decide to sell it- this Is a continuous trespass and liable under larceny by trick. Continuous trespass is AS SOON as intent is formed because there is a trespassory taking. EX. you are at a bank and they give you too much $ and you see it right away you must give it back but If you don t see it right away- it is not larceny.

D.

Statutory Gap Fillers

1. Embezzlement: The fraudulent taking of personal property with which one has been entrusted, especially as a fiduciary. In embezzlement, possession of property is given to a person in a position of trust, and the person so entrusted intentionally uses the property in a manner inconsistent with or which violates that trust. a. b. c. d. Conversion Of personal property Of another By a already in lawful possession (substantial discretion and control over the property) as a result of a trust relationship. e. with intent to permanently deprive STATE V STAHL: was charged with embezzling over $100. He opened drop box. The was in charge of the whole store at the time the money was taken. He took $$$ from the drop box. He had custody of the drop box so it was not embezzlement because he did not have possession of the drop boc. Remember: ****** Larceny has custody while Embezzlement has possession ******* 2. False Pretenses: Gives ownership with a lie. At common law there is just Larceny, no false pretenses. a. Obtaining title b. To personal property c. Of another d. By way of a knowing misrepresentation e. Of a material f. Past or existing fact g. With intent to defraud QUEEN V PRINCE: Mrs. Allen forged her husbands signature and obtained $. She then left Mr. Allen and Ran away with . was convicted of knowingly receiving stolen $ from the bank.

E.

Consolidation: theft by deception

STATE V SAYLOR: put $500 of items in a plastic toy chest at Kmart. Security officer observed this Occurring. was arrested by theft by deception. The employee let the pay for the chest (didn t Know what happened). The employee was deceived and there was consolidation.

18 F. Robbery: Specific Intent Crime 1.) Larceny 2.) Force or Fear 3.) Taking from the person or their immediate possession 1. Common Law Larceny + a. The taking and carrying away or an attempt to take and carry away of the property must be from the victim s person or in the victim s presence. 1.) The taking must be accomplished by the use of actual physical force, or an Immediate threat of physical force 2.) Done with the intent to permanently deprive the person of the property PEOPLE V BUTLER: B shot and Killed A. B testified that A owed him money and that A admitted owing it but kept postponing the payment. He testified that he threatened A in order to compel A to pay what he owed and the gun went off when A grabbed for it. Robbery has to have intent to permanently deprive. Butler did not have intent to permanently deprive because he only wanted the money that Anderson Owed him. G. Claim of Right- is not a defense If you take your car from the mechanic and you don t pay and you your staking it- this is still robbery Because the mechanic has possession of your car until you pay him. 1.) An honest (subjective) belief by defraud. that he/she is entitled to the property negates the intent to steal or

X. THE NECESSITY OF AN ACT A. Criminal Intent alone is not sufficient for criminal liability 1. There also must be some Act B. The act must be conscious and voluntary C. The act must be the proximate cause of the criminal harm D. A failure to act may satisfy the necessity of an act requirement 1. But only if had a legal duty to act a.) A legal duty to act may arise by 1. Statute (can impose a duty)

19 2. Contract (contractual duty to care for another- i.e. babysitting) JONES V US: Green paid Jones to care for Robert. Jones and Green were charged with abuse and maltreatment of the two boys and involuntary manslaughter in the death of Anthony. Omissions of duty owed where such omission results in the death of the one to whom the duty was owed makes the person guilty of manslaughter. Jones has a duty because involuntary assumption of care. 3. Status Relationship (ex. parent/child) MORELAND V STATE: Chauffer and owner were jointly indicted of murder, based upon a fatal incident. The owner alone was tried and was convicted of involuntary manslaughter in the commission of an unlawful act. The reason being is that owner should have told chauffer to drive carefully because he was aware and he had knowledge that chauffer was speeding.

Employers who are aware have a duty to prevent negligent acts by their employees. 4. Voluntary assumption and making it worse (assumed the care of another). Ex. you baby sit and suppose to give a kid a bath. Phone rings and you go answer It and when you come back you see baby has drowned. You are responsible for Taking care of child; OR 5. Creation of a dangerous situation (Ex. Swimming Pool) The s duty is only to what he/she can reasonably do to prevent the harm. STATE V RIDER: convicted of 1st degree murder. was looking for his wife and he was armed with a gun. Met the deceased who threatened him and came toward him with an ax, then the shot him. The abandoned the purpose to kill deceased when he met him and was assaulted by deceased so had to kill him to save his own life. The mere intent to commit a crime is not a crime. was eventually acquitted. PEOPLE V DECINA: knowing he was subject to epileptic attacks or other disorder rendering him likely to lose consciousness for a considerable period of time decided to operate his Buick sedan on a public highway. While doing this he suffered an attack, which caused an accident and killed 4 people. Since knew he was subject to epileptic attacks he is guilty of criminal negligence.

XI. THE INCHOATE CRIMES: these crimes are punished before they do the unlawful act. A. Attempts (Specific Intent) (1) specific intent to commit target crime and (2) overt direct but ineffectual step to commit the crime. 1.) Actus Reus- Sufficient overt act towards the perpetration of the completed crime. a. Prepatory/planning activity is not sufficient b. But the need not commit every act except the Last One necessary to complete the crime to be guilty of attempt .

20 c. The objectives of the law of attempts: 1.) To Identify the predisposed s

2.) To allow the police to safely intervene; and 3.) To insure that the seriously intended to commit the crime

d. Traditional view (dangerous proximity to success)

Dangerous Proximity: PEOPLE V RIZZO: with 3 others planned to rob man of a payroll valued at $1,200. started driving around looking for the man or anyone who had payroll. Police start following them because they look suspicious and they all are arrested. Man who had the payroll never was there at time of arrest. s needed to find the man with the money in order for it to be an attempt. y Under MPC THIS WOULD HAVE BEEN ENOUGH. YOUNG V STEP: Several banks had been held up & police set up a surveillance of banks in the area. parked his car in rear of the bank. He got out of the car and walked toward front door of bank wearing Jacket, sunglasses, stocking cap pulled down to sunglasses, white gloves and black eye patch. In car he had a police transmission that you can receive when they are around. Manager of bank saw him through window and called police and realized it was closed so he went to car and eventually was arrested. He had all this evidence that showed he wanted to rob the bank. As long as the deed is done makes guilty. 2.) Mens Rea- the intent to accomplish the completed crime the is accused of attempting.

THACKER V COMMONWEALTH: (guy who shot into the tent) reminds us of Banks case. He shot toward her but had no intent. It is not murder if did not have intent. NO INTENT MEANS NO ATTEMPT. PEOPLE V RIZZO: Use Common Law-dangerous proximity. He did not have dangerous proximity because he was not in the building. If they used MPC- he would be guilty b/c of substantial step. At Common Law, there can be no attempted crime without a specific intent to commit that crime. 3. Impossibility (is always the wrong answer!) 4. Abandonment a. Involuntary abandonment - no defense to an attempt charge b. Voluntary abandonment Split of authority. STEWART V STATE: approached victim at service station with handgun and asked victim to give him his money. Police came and told him to pretend to give him two cans of oil. The police saw the hand gun and as attempted to leave gas station, he was apprehended. Attempt is done when he produced the gun. He abandoned only when he saw the cop. Abandonment is not a defense. y MPC doesn t go with the outcome of the case (WOULD REWARD for abandoning the crime)

21 STATE V PETERSON: did not personally set fire but caused it to be set by an accomplice. says she told accomplice to not set the fire and to leave the premises which accomplice still set the fire. This is more withdraw than abandonment. She had agreed to the burning of the fire but because she made a substantial effort to withdraw she is not guilty.

B. Solicitation (Specific Intent) 1.) Actus Reus- seriously asking or encouraging another person to commit a crime 2.) Mens Rea- the specific intent that the crime be committed 3.) **A solicitation charge merges with the substantive offense (attempt OR completed crime)** Solicitation is asking someone to commit a crime. It has to be serious. It is also a word crime. STATE V BLECHMAN: Accuses Blechman of merely counseling another to set fire to the dwelling house. Blechman argues that other person set fire so he is not guilty. This is not true because he counseled which makes it a felony. EX. If you go to a hit man and offer $ to kill your husband (hit man turns out to be a cop). Hitman (cop) tells you to prepare everything. This is solicitation because he just said ok and you did everything else.

C. Conspiracy (Specific Intent) Common Law- guilty of conspiracy when agreement made MPC- says there must be a completion of the crime in order to be guilty of conspiracy 1.) Actus Reus- an agreement (Express or implied) between two or more people to do something illegal. 2.) Mens Rea- the specific intent that the crime be committed. y Knew the unlawful purpose of the agreement and joined in it willfully- with the intent to further the unlawful purpose. 3.) Overt act (minority rule) in furtherance (by one of the conspirators) DEFAULT ANSWER: NO OVERT ACT REQUIREMENT (Common Law) 4.) **A conspiracy charge does not merge with the substantive offense **

must understand that the plan or scheme is unlawful and knowingly and intentionally join the plan. If the joins the plan, that is sufficient to convict him of the conspiracy, no matter how little he participates afterward.

22 a. Pinkerton Rule- a is liable for the crimes committed by his/her conspirators y Can be charged for each crime committed by others after the conspiracy is Formed 1.) As long as those crimes were committed in furtherance of the conspiracy 2.) And they were within the reasonable foreseeable scope of the conspiracy y A member of a conspiracy remains in the conspiracy unless he can show that at some point he completely withdrew from the conspiracy. y MPC- rejects the Pinkerton rule MPC: overcomes the problem agreement with an undercover agent by stating: When a person agrees with another person, there is a conspiracy. 5.) Withdrawal a. Withdrawl is a defense, if actually communicated in time to be effective (before crime committed) b. must take some affirmative step to renounce or defeat the purpose of the conspiracy. must show that at some point he completely withdrew from the conspiracy. y An affirmative step would include an act that is inconsistent with the purpose of the conspiracy and is communicated in a way that is reasonably likely to reach the other members. 1.) Majority View- only a defense to subsequent criminal acts 2.) Minority View- defense to the conspiracy charge, as well as if prevents the Commission of the substantive defense. 3.) Co-conspirator Liability (Does not have to know all the details) Government Must Prove: 1.) The was a member of the conspiracy charged in Count ___ of the indictment.

2.) After he joined the conspiracy, and while he was still a member of it, one or more or the other members committed the crime of ______. 3.) This crime was committed to help advance the conspiracy. 4.) The crime was within the reasonable foreseeable scope of the unlawful project. y Crime must have been that the could have reasonable anticipated as a necessary or natural consequence of the agreement.

23 KOTTEAKOS V US- s had sought to induce various financial institutions to grant credit, with intent that the loans or advances would be offered to the Federal Housing administration for insurance upon applications containing false and fraudulent information. There were 3 separate deals. It was a chain conspiracy and it was directed toward same crime. All are guilty of subsequent crimes if they are reasonably foreseeable and in furtherance of the crime.

XII ACCOMPLICE LIABILITY A. Accessory Before OR During the Fact: 1.) Aids or encourages a crime 2.) Before or During the crime 3.) With the intent (or knowledge) that the crime be committed PEOPLE V BEEMAN: was not present. He aided his acquaintances. An aider and abettor acts with knowledge of the criminal purpose of the perpetrator and with an intent or purpose either committing or of encouraging or facilitating commission of the offense. If you act with knowledge and encourage and you know he is going to complete the crime, the intent is there. B. Accessory After the Fact: a (a lessor crime) if he/she: is guilty of the distinct crime of being an accessory after the fact to is liable for crimes committed by others if he/she:

1.) Aids a felon to escape arrest, detection or punishment 2.) After the principal crime has been committed 3.) With knowledge that a crime was committed STATE V WILLIAMS: Hicks deliberately shot and wounded Hooker. Hicks along with others fled to the house of the . Victim later fied. To prove you are guilty in an after the fact accomplice, 1.) Principal committed the crime 2.) Accused knew that felony had been committed 3.) Accused received, relieved, comforted, or assisted the principal felon. These are the elements of the crime. Here argues that the guy was not dead (at the time of the crimeHe died later), therefore she did not assist because she helped him before the murder was complete. XIII. Mens Rea of Accomplice is specific intent that the principle commit the crime. Actus Reus- assistance or encouragement and criminally committed by .

A. General Rule: some morally blameworthy mental state or negligence is required to impose criminal liabililty. B. EXCEPTION: Strict liability (no intent) offenses

24 Strict Liability: Certain crimes only require actus reus and no mens rea

General Rule of SL: it is reserved for minor offenses that are not true crimes at common law. a. Liability based on the commission of the prohibited act without regard to the b. Limits on the imposition of strict liability - Due Process Clause c. IF statute is completely silent about a mens rea- ASK SHOULD it require a Mens Rea: Must LOOK @: 1.) Is it a True Crime at Common Law? y y y The behavior it seeks to punish Historical treatment Morrissete= Yes- Common Law Larceny s mental state.

2.) If SO, did it need a mens rea under CL?- Is it Mala Prohibita or Mala in Se? y y y Look at the statutory language- knowingly, purposely, intentionally (this is mens rea) If lacking ly words, look at the CL and see if it was a True Crime Mala Prohibita- bad because we say so (overweight truck, traffic fines, etc) -done through statutes -legislative authority -someone will be guilty irrespective of their intent Mala in Se- bad in itself (murder, rape, etc)- more likely to require a mens rea

3.) Look at stigma and punishment associated with it y How bad is public going to view it

Commonwealth v Olshefski: loaded coal into truck and he violated the statute that says there can only be 15,000 plus 5%. He argues that it was a reasonable mistake but that does not excuse his behavior. He did not negate mens rea. It was a mala prohibita crime because of the fact it was overweight. Staples v U.S: Police went to search s home and found among other thing, an assault rifle. It was modified to be capable of fully automatic fire. was indicted for unlawful possession of an unregistered machinegun. claims that he did not know. It was a 10 year sentence.

25 C. Transferred Intent 1.) General Rule: Can t mix the actus reus for 1 crime with the mens rea for another. 2.) Exceptions- Include a. Majority view of the felony-murder rule b. Burglary 3.) Unintended victim cases a. The s intent will transfer to an unintended victim.

2 ways to identify transferred intent 1.) Count your victims 2.) Follow the bullet (intent travels with the bullet)- if person dodge it, they are aware if intent (Assault)

REGINA V FAULKNER: charged with arson. Argues that his intent was to commit larceny not arson. The Actus reus of burning the ship cannot be transferred to the form of mens rea of arson. EX. You want to kill a women and you find out that she likes chocolate. You buy chocolate and you put Poison and send it to the woman. Where she lives there is another woman who has the same name and The chocolate is received by her. She eats it and dies. Are you guilty? Yes, because you intended to kill Someone. Are you guilty of killing the wrong woman? No because you did not do anything to her. D. Motive (the reason why a acted) 1. Generally motive is not an essential legal element of the prosecutor s case a. But it may be relevant circumstantial evidence of identity or intent b. If it is sufficiently compelling, it may give rise to a defense E. Concurrence Doctrine 1. The actus reus must be attributable to the mens rea 2. No ratification/relation back doctrine in the criminal law 3. Exception- the continuing trespass doctrine COMMONWEALTH V CALI: Convicted of arson of an insured building. argues that he accidently started the fire, which is no intent. He had the specific intent to burn insured property and injure the insurer. He also had specific intent because he failed to act.

26

XIV. MENS REA DEFENSES A. Infancy B. Legal Insanity (Not Guilty by Reason of Insanity) The mens rea defense: If you successfully raise this defense it negates the mens rea. In other words, the person did it but they lacked mens rea because of insanity or extreme intoxication. -Insanity is a complete defense to every crime except strict liability crimes -Insanity at the time of the offense is a complete defense to all mens rea crime 1.) Procedural Rules- Prosecution cannot raise insanity until defense raises it 2.) Mental diseases or defect- does not by itself establish the defense of insanity 3.) Causation Link

A. Tests for Insanity 1.) M Naughten Test (cognitive test- what person thought was insane)- reasoning abililties THIS IS COMMON LAW: Test for social policy and the purpose of Criminal Law y y looks solely to the reasoning abilities of the . Have to PROVE through EXPERT TESTIMONY/EXPERT WITNESS that there is some sort of mental disease/defect that is currently with the Once you prove that, look at 2 things: 1) doesn t know the nature and quality of the act 2) Even if the did know, they did not know it was wrong y It does not take into consideration any emotional dysfunction of the , no matter how severe.

STATE V WHITE: M Naughten Test. was charged with committing 2 murders alleged to have been committed at different times and places on the same day. wants ALI but court did not error in using the M Naughten test. If he is so far removed from reality he does not know the nature of his acts and cant be responsible.

27

2.) ALI/MPC- (volition test- you know it s wrong but you can t control your actions) ALI= American Law Institute- Uses M Naughten test OR Irresistible impulse test y y LESS DEMANDING test than M Naughten Looking at those individuals with a mental illness- either/or test

1.) Either Whether at the time of the crime was substantially unable to appreciate the wrongfulness of his conduct OR 2.) was substantially unable to conform conduct through the requirements of the law (irresistible impulse) Irresistible Impulse Test: I can t resist the impulse to do something criminal- need to prove you are suffering from a certifiable mental disease/defect (b/c all criminals have an impulse- need to go beyond that) PEOPLE V DREW: who was a former mental patient was at a bar drinking. He goes to bathroom and leaves $5. When he comes back, he does not see money and accuses someone of stealing it and argument starts. would not cooperate with police so they arrested him. Case uses ALI. He is not responsible if he couldn t appreciate the act OR to conform to law. 3.) Product Rule (Durham)- virtually an abandoned rule- always WRONG ANSWER ******* y Was the criminal act a product/cause by the mental illness? y Jury had no guidelines as far as by experts/witnesses DURHAM V U.S.: was convicted of burglary. He used the broader (product test), which means not guilty if act was product of mental disease or defect. This case was overruled and found that the M Naughten rule should be used. 4.) FIDRA- THIS IS THE DEFAULT- brought back M Naughten test 1.) unable to appreciate the nature and quality of the wrongfulness of its acts

2.) It shifted the burden of proof to the y Under M Naughten it had always been on the STATE to prove beyond a reasonable doubt to prove the was not insane. y Now must prove he/she is insane 3.) Prohibits expert testimony y Makes it impossible for the to bring up the defense y Government won t bring in their expert testimony (not their burden)

28 y But it prevents EITHER part from bringing in expert testimony 4.) Eliminated the irresistible impulse test C.) GMBI (Guilty but Mentally Ill)- always wrong answer on test D.) Diminished Capacity: MI LAW lack of capacity to perform -- legally applicable to disabilities not amounting to insanity, and its consequences, in homicide cases, operate to reduce the degree of the crime rather than excuse its commission. -Diminished is only for specific intent crime, you lack capacity to conform -Diminished capacity is used to reduce crime -Diminished capacity falls short of insanity to negate specific intent (mens rea). EX. If you argue diminished capacity you argued that you did not have specific intent STATE V SMITH: charged with rape of babysitter and murder (he strangled cousin). On appeal, said that trial court should have charged him with diminished capacity for the murder. Apellant Ct agreed with him. y Can t use diminished capacity as a defense to rape (because rape is specific intent crime) E.) Automatism: unconsciousness. It is a complete defense separate from insanity. Person who is unconscious when he commits the act. He cannot know the nature and quality thereof or whether it is right or wrong. F.) Intoxication: artificially induce state of mind from voluntary taking drugs or alcohol. Intoxication is a total defense and applies to all mens rea crimes 1.) Voluntary: 1. the intoxicated person must have knowingly ingested the substance. 2. Tendency to cause intoxication is known or should be 3. If it is medical advice/recommendation- might be a little bit of an outlet I need it *Voluntary Intox* only a defense to specific intent crimes- the intoxication must render the person incapable of forming specific intent (Ex. need to be REALLY drunk/blacked out) Excessive/ Prolonged use of a substance- may bring a person to the position of insanity y Cannot use it to lead to an insanity defense unless the symptoms exist without the drugs. The symptoms are worse than when on the drug. y Common Law- voluntary intoxication has not, of itself been considered a defense to crime

29 SPECIFIC INTENT V GENERAL INTENT CRIMES Specific Intent: Requires an element of the crime that the person have a specific intent. Can be best defined as a requirement that the perpetrator have at time of the crime, a conscious intention to produce a conscious result. General Intent: Does not require proof of a particular conscious mental state at the time of the commission of the crime. General Intent crimes have no defense of intoxication. 2.) Involuntary: y not self induced or y not a pathological tendency y lacking the mens rea By reason of such intoxication, the actor at the time of his conduct, lacks substantial capacity either to appreciate its wrongfulness or to conform his conduct to the requirements of law. Involuntary is treated as Insanity. Insanity is a COMPLETE DEFENSE to general/specific intent crimes REMEMBER!!!!! If crime has both general and specific intent- only default it to general intent when it comes to intoxication GENERAL INTENT CRIMES (just need an actus reus) y rape y battery y arson y common law murder y felony murder (rape, arson) y 2nd degree murder y Kidnapping (if its just with the secrecy- holding them) SPECIFIC INTENT CRIMES (goal oriented-mens rea) y All assaults y All larcenies y Robbery y Burglary y All attempt crimes y The 3 inchoate crimes (attempt, solicitation, conspiracy) y Accomplice liability y Kidnapping (if there is a specific intent- needs to say with intent to ) y Felony murder (burglary, robbery, larceny) y 1st degree premeditated murder Kidnapping: Can be specific or general. y Secret confinement- General intent y If it says with intent to specific intent

30 Involuntary Intox. Insanity. Dim. Capacity Voluntary Intoxication

Complete Defenses To all Mens Rea Crimes

Mental Disease/Defect -need expert

Specific Intent

People v Langworthy and People v Lundy: In Lundy Case, raped sister with knife as a threatening weapon that involved 3 penetrations. had been sniffing glue and drinking prior to the crime. In Langworthy, and others were drinking and doing drugs in his house. They decided to go to store and pick up another person. That person made offensive comments and it irritated and it made him shoot him. In these cases they wanted to use intoxication as a defense but it is not a defense of 2nd degree murder. State v Cameron: approached card game. Eventually attacked victim with a broken bottle causing him injury to his head. did not cooperate with cops and hard to be restrained. Wanted intoxication as a defense but trial court did not allow it. In appeals, they allowed it because they used the MPC that says voluntary intoxication is a defense when it negates an essential element of the offense, that offense requiring specific intent of knowingly or purposefully. But facts surrounding shows their wasn t evidence to show she was intoxicated enough to not know what she was doing. State v Cooper: was driving reckless in parking lot. Patrolmen pursued him and shot and wounded patrolman. later kidnapped man but he got away. wants insanity defense. This is no good because he did not have a mental disease/defect. Voluntary Intoxication does not go with mental illness. knew what he was doing (he drove and recognized patrolman).

G. Ignorance/Mistake of LawGeneral Rule: honest and reasonable (jury decides what is reasonable) for general intent crime -generally NOT a defense EXCEPTIONS: 1. Mistake with regard to some other law that negates a necessary specific intent 1. Mistake related to non penal law- such as contracts or civil law 2. s mens rea is lacking to be guilty of a specific intent crime. 2. Prior to official publication of malum prohbita crime  In order to be guilty of a new law, you should be aware the law is in tact 3. Reliance on a formal opinion from a public official responsible for interpreting the law.  If you rely on an opinion of a court that is later reversed and you are not informed- this is a defense up until you are aware of the reversal

31

Ex. attorney general or a judge while in a court preceding- gives a ruling that says it is legal to do thisbut it really wasn t- your belief in their analysis is reasonable because they are in a formal setting, and that attorney general or judge is known to have good knowledge of the law People v Marrero: Federal Correction Officer in NYC. In Conneticut he was aloud by law, to carry his gun. In NY, he was not and he was charged with carrying a handgun without a permit. His defense: Peace Officers can have guns (And I thought I was a peace officer). COURT: just because you misunderstood the law, doesn t mean it s a defense.

Utilitarian Policies: prevent people from doing what tried to do- trying to avoid mistake defenses Reasoning of this Rule: people are supposed to know the law- by imposing this harsh doctrine, to ENCOURAGE INDIVIDUALS TO LEARN THE LAW Retributive argument against this: he is not culpable- didnt mean any harm *Specific Intent crimes allow ignorance as long as there was no intent. This ignorance negates the mens rea requirement* HYPO: Smoking has been aloud everywhere. Then it is a brand new law that says you cant smoke. (brand new law that completely changes the status quo)- You have a Defense. This is a Constitutional Defense- I didnt have notice

People v Weiss: Police officer from NJ- goes to NY and arrests a guy with no legal right. He is charged with Kidnapping because he didnt have jurisdiction to arrest. He argues on appeal that he thought he had the authority from the fact that he was a police officer. Law that imposes jurisdiction to arrest people is not penal law (Civil Law). Mens Rea: confining without legal authority. He didnt knowingly someone without legal authority. Mistake of non penal law that negates mens rea. Ratzlaf v United States: s offense: violating an anti-structuring law- the mens rea of this statute is willfully. owed casino $. Casino advised him to go to different banks and get no more than $10,000 from each bank (because more than $10,000 needs to be reported by the bank- this way there would be no government paperwork). relied on casinos word. He didnt know he was breaking the law. He did not willfully violate the law. **Need to Look AT THE STATUTORY LANGUAGE** (Must always look at the verb- that willfully modifies. It is usually Willfully violates) a.) look at the statute as a strict liability crime b.) what if statute says anyone who willfully violates the statute- if you dont know against the law, you has a mistake of law defense

32 H. Ignorance/Mistake of Fact - needs to negate the mens rea General Rule: honest mistake of fact can be a defense to a specific intent crime 1. For specific intent crimes, an honest mistake of fact that negates a necessary intent is a defense 2. For general intent/negligence crimes, the mistake must be a reasonable one in order to be a defense EX. Rape-general intent crime- I honestly thought she was consented- if its not reasonable belief that she consented- you are guilty *Strict Liability Crimes- Mistake of Fact is NOT A DEFENSE* People v Vogel: convicted of bigamy. He claims he was going to get a divorce and wife was living with a new guy. He believed he was divorced and he wasnt (Mistake Of Fact). believed that he was free to marry. Bigamy is a general intent crime and he is not guilty because he reasonably believed his wife was divorced from him. (Courts say this is a severe defense: Divorce is a function of law). HYPO: married to wife in NC. He moves to Texas, files for divorce. You must give someone notice as a law, you could publish in newspaper or mail it. But, he doesnt. Judge grants him divorce (even though wife doesnt get notice). He gets married to someone else. was charged with bigamy. THIS IS A MISTAKE OF LAW- he relied on a formal opinion- this negates the mens rea to knowingly get married to someone else while you are still married HYPO: You kill a hunter (he was very noticeable- it was broad daylight-) your mistake is not very reasonable even if the jury believes you that you honestly thought it was a deer- cant be convicted of 1st degree- because no reasonable person would think that a person looked like a deer. Probably get 2nd degree/Conscious disregard. Hypo Change: If the hunter you kill is a horribly misguided soul and believes the way to trap deer is to dress like him- its pretty reasonable to think he is a deer- at worst- this would be involuntary manslaughter.

XIV. EXCUSE A. Duress (aka Compulsion): pressure/coercion coming from a human 1. Threat of Death or GBH (upon or 3rd person) -reasonableness of threat 2. fears the threat will be done. -Immediacy of threat -Imminent- Likely to happen at that moment 3. lacks an escape to the defense ( and 3rd persons) -Sufficiency of threat 4. cant be responsible or contribute to the crime in the 1st place - creating own situation (Gang hypo) -absence of a voluntary act

33 BRETZ DEFENSE y There must be a reasonably imminent threat y And the has to act to avoid that threat y And must choose the lesser of 2 evils Courts sometimes mention additional elements of the duress defense: 4.) That the situation must have arisen without the fault or negligence of the ; 5.) That the threat must be present, imminent, and impending when the crime committed under duress is carried out. State v Burney: is a convicted felon (not allowed to possess weapons). He is bar with friend who drove him to bar. leaves bar early and goes to wait in friends car. Meanwhile, 2 guys from inside the car come out and find him in the parking lot. They come at with broken pool stick. reaches under seat and finds friends hand gun and tells them to get away. He is convicted for being in possession of a weapon- HE HAS A DURESS DEFENSE y y y y Was the in imminent threat? Yes- coming at with pool stick Was there reason to believe there was an imminent threat? Yes- they are right there Did he have to use the weapon to protect himself? Yes- it worked Did his knowingly possession of the weapon- the lesser of the two evils- YES- protecting himself

1. Need to act if was threatened by human force (Duress) or act of nature/god (necessity) 2. Is it imminent? 3. Lesser of 2 evils? HYPO: A teen- had to commit this theft, or these guys were going to kill him. If it is imminent/realthere is a duress defense. The guys he is talking about is a street gang he was trying to join- to join you have to commit a theft or we will all kill you. He is responsible for getting himself into that situation in the first place. No duress defense. *When you willingly go into a situation where you know you will have to do something illegal- no duress defense* Cab driver Hypo- pick up 2 guys- someone pulls a gun up to you they want you to drive to a store- 1 of them will wait in car with cab driver while the other one robs a store- then they want you to drive them to safety- you do it. Did you assist a Robbery? Yes. Did you intend to assist the Robbery? Yes. Should you be guilty of Robbery as an accomplice? Yes,. But you have a DEFENSE- DURESS. You chose the lesser of 2 evils- robbery v homicide NOW.Same guy- says we want you to speed up and kill that guy in the street- or he will kill you. If you do run the guy over- it was intentional- you thought about it- you weighed your options- Law calls this Voluntary Manslaughter.

3 ways to get to Voluntary Manslaughter 1) Legally Adequate Provocation 2) Duress or Necessity 3) Imperfect Self Defense/Self Privilege

34 B. Necessity: Pressure is coming from an act of god/nature 6 elements 1) The act is done to prevent a significant evil 2) There is no adequate alternative 3) The harm of the act is not disproportionate to the harm avoided 4) Good faith belief that the act is necessary to prevent greater harm- this is the reasonable fear 5) 6) believed it and it was a reasonable fear- objectively (not only did believe it but the reaper would) didn t substantially contribute to the creation of the emergency

HYPO: fire example- if you start the forest fire- and then try to burn someone s house down- you probably won t get defense because you significantly contributed to the fire

Ex. Hurricane Katrina- Need to steal from a store to survive Fire hypo: Fire coming from your subdivision- heading toward a mansion (everyones homes in back of subdivision are safe because mansion is burned down). It is imminent that their homes are being destroyed- yes. They burn one home to save 200- this is the lesser of 2 evils THOSE PEOPLE HAVE A NECESSITY DEFENSE Troops v State: and others decided to drive to store. was intoxicated so he let minor drive. put his head out the window for fresh air. Police saw them and went after them. Minor got scared and jumped to back seat. -in order to stop car from being out of control, got in drivers seat. was arrested. On appeal- they used Necessity defense because it is better to drive then to let something worse happen. C. Issues of Consent & Condonation Consent: Generally no defense (Crime is a public wrong) -only a defense if there is an element of consent in the crime  Burglary  Larceny  Rape    Kidnapping: Potential Defense. If they voluntary move with you- it is not kidnapping Minor Batteries- (touching, kissing)- Consent is a defense (not major batteries) Sports: Consent to some battery in sport (unless they are going above and beyond the limits of the game) * Any Homidice- consent is never going to be a defense

35 Condonation: Consent AFTER THE FACT Always the wrong answer  Never a defense  Meaningless  EX. Domestic Violence Cases - Prosecutor can drop the case, but doesn t have to because crimes are not against The victim (in criminal law)- they are against society -Many times when the victim forgive you- Jury will still find you guilty EX. Joe Bob and Mike go to beach. Joe doesnt like Bob (he is envious of him). Bob and Mike go in for a dip- Joe takes Bobs rolex watch (he took off to go in water). Bob comes back and sees Joe holding watch (before Joe puts in pocket). Bob says you can have that watch- I like you. IS JOE GUILTY OF LARCENY? YES. Joe picked it up with asportation- with intent to steal CONDONATION MEANS NOTHING- its the wrong answer- Joes not guilty because Bob condoned his act EX. Same thing if the victims family askes the court not to impose the death penalty? That is sentencing. Sentencing needs to be done with an eye toward everything- how does the victim feel? This is not condonation (no relationship to guilt- this is sentencing) EX. anti abortion protesters- trying to save unborn babies- use necessity as a defense- cant do this because our country has never agreed with this

XVI. JUSTIFICATIONS A. Law Enforcement- Crime Prevention 1. Amount of Force a. Protection of personal property b. Protection of the person or home 2. Use of deadly force to prevent dangerous felonies a. Villiborghi (technically guilty of dangerous felony) b. Ceballos (Manner; reasonable belief; any physical force, however slight) c. Make my Day. (Manner; reasonable belief; any physical force, however slight)

36 B. Law Enforcement: Fleeing Felons 1. Common Law Rule: There is almost unlimited authority for either police officer or a private citizen in the pursuit of crime prevention to use deadly force to stop or prevent any felony. Tennessee v Garner: Officers dispatched to a house. Officer sees someone slam door and run across the yard. The fleeing suspect stops at fence. Officer sees no sign of weapon and was reasonably sure he was unarmed. Officer called out police holt but suspect began to climb fence. Officer shot him and later died. Suspects father suing in a civil suit. CASE: 4th amendment prohibits unreasonable searches and seizures. If the government improperly violated your civil rights- you can sue the government.  Reasonableness is the hallmark of the 4th amendment TN Statute: Allowed the cop to use deadly force against a fleeing felon Modern Statutes: Standard of Belief:  Probable Case/Reasonable belief MPC: Use of force upon or toward the person of another is justifiable when the actor is making or assisting in making an arrest and the actor believes that such force is immediately necessary to affect a lawful arrest. MPC only cares about guilty mind. What good comes out of the Supreme Courts Rule? (in terms of Utilitarian Policy) -By limiting who they can shoot, what result will they have?  The cost of this rule is that some guilty felons will be able to escape  But if there is no physical danger to anyone- police have no right to shoot at you HYPO: Police shooting someone in back for shoplifting (after police trying to ask them to stop from running away). Police is charged with homicide.  This police officer is shooting an unarmed non-dangerous felon

37 C. Self-Defense 4 Requirements-- NEED TO GO THROUGH THESE FOUR STEPS ON AN EXAM Non-deadly force: force not likely to cause death or GBH Deadly Force: force likely to cause death of GBH If you are facing IMMMINENT death or GBH, you are allowed to use deadly force to protect yourself 1. Initial Aggressor Doctrine  cannot be the initial aggressor- initial aggressor can t claim self defense

 Can t throw first punch/any physical action- words not enough  If states in the middle of the fight that he is withdrawing- he gets his defense back  If STARTS with non-deadly force and the other side raises it to deadly force: the can use self-defense (Split of authority) 2. Proportionality Doctrine: 2 levels of force. 1. Deadly force 2. Non-deadly force  You can defend deadly force with deadly force.  You can defend non-deadly force with non-deadly force. *You can t use deadly force to defend non-deadly force* EX. Someone trying to rape you- you can shoot them. Someone trying to hit a baseball bat at your kneecaps- you can shoot them. NOTE: You take the victim as you find them (like the tort doctrine) HYPO: If someone has past face surgery and a slap to the face could cause them to have serious injury. Then they can use deadly force. Normally a slap to the face is not deadly force. People v Lavoi: 4 men are the initial aggressors- for rear-ending LaVoi. Lavoi jumps out of car with gun and they say to him I will make you eat that damn gun. After they advance toward him, he shoots. 3. Reasonableness Doctrine- was it reasonable in those circumstances to believe there is a threat 4. Imminent- must reasonably believe that you are presented with an imminent threat

SIZE MATTERS- 300 lbs linebacker- trying to use force against a 90 lb person- probably reasonable for the 90lb person to believe that they have an imminent threat of deadly force being used against them

38 ALL 4 OF THESE ELEMENTS- have to be continuous during the entire fight 5. Duty to retreat- Split of authority- not necessary in all jurisdictions  You have a duty to retreat before you use force if you can safely do so, to avoid any harm ON EXAM: Don t use DUTY TO RETREAT- unless told you are in a minority jurisdiction- or a duty to retreat jurisdiction Castle Doctrine: There is NO DUTY TO RETREAT IN OWN HOME- only outside your home CO-OCCUPANTS: Majority Rule: Dont have a duty to retreat American Rule: You dont have to retreat ANYWHERE. DUTY TO RETREAT CASES  Doesnt apply in own home  OR during work in normal business hours  DUTY TO RETREAT STATES- the threat still needs to be imminent  In states that REQUIRE A DUTY TO RETREAT never has to retreat, unless he can do it SAFELY  Only if the is out of range of the weapon, will he be under a duty to retreat. Cooper v US (Duty to Retreat): No duty in your own home. and brother got in a fight. Brother started hitting with radio on his head. could not take it anymore so he shot him. Should he have retreated? No because he was in his own home. He also could use deadly force because he met all 4 requirements. (Brother was the initial aggressor, the s response was proportionate, it was imminent and it was reasonable for him to believe there was a threat of death or GBH). Brown v US: (Duty to retreat at work): and co-worker had some problems in the past. decided to take a gun to work just in case. Co-worker came up to with knife and got his gun and shot. No duty to retreat if it is during working hours. State v Davis: shot deceased because they had an argument. Deceased had slapped and struck for no reason. They were co-workers and this happened around the farm they worked at. cannot claim no duty to retreat at work place because it was not during working hours. Warrington v State: The owed some money to the victim and paid him with a forged check. Victim found out and went to s house broke into the house and in the house, he threatened the . Brother saw the argument- and beat victim to death. Not a defense to beat victim to death. This would be considered Voluntary Manslaughter. Conspiracy: YOU CAN INFER an agreement from Circumstantial Evidence RULE: Once the danger of has passed, the subsequent use of deadly force is no longer justifiable because the danger is no longer imminent. 4 requirements no longer there.  Policy Argument: Good Rule-after you subdue someone, you don t have to kill them -You are trying to save lives  Argument Against this Rule: Practical problems in applying this Rule

39 ISSUE: Is self-defense a subjective test or an objective test? DEFAULT RULE: Can use deadly force if it is REASONABLE to believe that perpetrator will be putting human life in danger MPC: You can use deadly force only if you honestly believe that there is a substantial risk that the perpetrator will cause death or great bodily harm if he is allowed to complete the felony

D. Defense of Others Common Law: a man could only defend his property and was only available if the person who was being defended had a right to use lethal force limited to family members Modern Rule: Defense of others is not limited to family members State v Bernardy: Wilson became involved in a fight with Harrison. went to help Harrison and kicked other guy in head. The friend was not in imminent danger so can t claim self-defense. (Wasn t reasonable) Reasonable Apperance Doctrine (Majority): If it reasonably appeared to /shooter that He has to act to protect another from imminent deadly force (and it is imminent), he may Use deadly force. Act at your own Peril Doctrine: (Minority) If you come upon this same situation, you act at your own peril. You can t claim Justification of defense of others Alexander v State: helped other prisoner who was being attacked by officer. and other person has to be charged upon his own observation of circumstances as they reasonably appeared to him. E. Defense of Habitation Can use deadly force to defend a dwelling ONLY IF: the entry is made or attempted in a violent manner and he reasonably believes that the entry is attempted or made for the purpose of assaulting or offering personal violence to any person in the dwelling. -based on what is reasonable under the existing circumstances

F. Battered Women s Syndrome 1. Temporary Insanity 2. Mitigation to a lesser crime or imperfect privilege a. Pattern of abuse is sufficient provocation to mitigate the offense.

40

3. Self-Defense / Battered Women s Syndrome a. Abused spouses can wait for lull in the abuse to act. 1. Must show through eyewitness, expert testimony, etc there was a pattern of abuse b. Imminent danger was close to the time of the killing.  Close to imminent (not imminent like usually self-defense) c. Proportionality of force exerted in self-defense must be seen through the eyes of the (The battered woman) 1. Reasonable belief that you have to act  Reasonable battered woman with a glass jaw 2. Need deadly force to use self-defense/kill spouse State v Stewart: Prosecutor was appealing the issue in this case. Stewart shot her husband while he was sleeping. There was a history of abuse by the husband and 2 hours after they were asleep, Stewart got a gun from the next room and shot him. Can t use self-defense for a victim who is Sleeping, however you can wait until he turns his back. There can be a lull (pause) in the abuse, but it has to be shown the danger was close in the time of the killing.

G. Imperfect Privilege (relates to defense of others and defense of habitation)- don t get self-defense but you were close- leads to a voluntary manslaughter conviction. 1. Reasonably believes he is in imminent danger of death or GBH 2. It was necessary to do what he did 3. If a jury finds actually believed he was in danger but the response was not reasonable, then a crime can be mitigated State v Jones: If it is close to self defense, but one requirement is missing (typically the initial aggressor doctrine), you can have imperfect privilege. In this case, it is the imminent danger element because shot bully in back of head. In this case it is- Imperfect Self Defense: Killing is done under circumstances where the had an unreasonable but honest belief that deadly force was necessary to repel an imminent danger. PROBLEM: You are the initial aggressor (reason why you didn t get self defense). -Some state have statutes that tell you what element can be missing to find imperfect privilege.   In MI, the initial aggressor element can be the only one omitted. However, in all OTHER jurisdictions, there can be only one element missing

41 H. Effect of Mistake I. Model Penal Code: Honest Belief is sufficient (not held to a reasonable person) J. Entrapment 1. Subjective test (Majority): Federal Government uses this test POLCY: We don t want to punish people who were not going to commit the crime 2 PART TEST: A. Was the predisposed to committing the crime? (Would have tried to do it w/out help/encouragement of the police)  Determined by totality of the circumstances  Prior record YES: No entrapment defense NO: Go to second question B. Did the government induce the criminal behavior? US v Poehlman: We cannot punish people who are not criminals. was not predisposed to this crime and the government induced him into committing a crime he otherwise would not have committed. US v Russell: Inducement is not opportunity. A reverse drug buy where the users are arrested is an example of opportunity. If they give you an opportunity and you comply, it s not entrapment. Russel argues but for the government involvement, I would not have committed the crime. Government argues: you were predisposed- undercover did not CAUSE you to commit the crime/ he gave you the opportunity. State v Jacobson: purchased child porn when it was legal to do so. The company was caught after this became illegal, and the government tried to arrest all the people on the mailing list. was made repeated offers where he refused, until he finally gave in. was not predisposed because he had not committed this when it was illegal. Once it became illegal, he never bought anymore. The government induced him: they caused him to violate the law- 2 years of repeating offers. But for the government, he would have not even tried to commit this crime.

42 2. Objective test (Minority): Many states (Michigan, Cali, etc) only looks at government s conduct A. Would the government s behavior/ conduct induce or have induced an otherwise lawabiding person in this s shoes/circumstances to commit the crime? Yes: Entrapment Slight slant of subjective (looking at s circumstances)

US v Barraza: recovering heroin addict who works at rehab center (This is the s circumstances). says no repeatedly to a cop trying to get him to sell him heroin (wants a number for a heroin dealer). He does the lease he can do to get rid of the cop. s have to be reluctant to commit the crime. An otherwise law-abiding person under HIS circumstances would have done the same thing to get rid of the person.  3 times Rule: If you say no 3 times and then give in- this is entrapment  We want our police stopping crime, not creating crime  This test is not based on predisposition: ask whether police/government CAUSED conduct 3. Due Process Test a. Outrageous Police Conduct b. Civilized society cannot tolerate e.g. Traverse City case: Police stock a teen s apartment with weed and beer. He starts having parties. The police officer one day says I am out and need some more weed. The teen got him some more weed. He was not entrapped. But police conduct was outrageous. e.g. Basil Brown case: Brown gets elected to state senate and put on judiciary committee. Was chairman: he was a notorious anti-police person. Cops hated him. He gets drunk-driving charges a few times so he cleans up and becomes a heavy pot smoker. Police followed him and notices he was getting regular visits from a woman that appeared to be a prostitute. They set her up and busted her for prostitution. They said to her if you ever want to see your children again, you need to set up basil brown. She admits to bringing him marijuana and sometimes cocaine. Sets her up with the drugs to bring to the house and next day they raid his house. He was not entrapped because he was predisposed (already doing it). BUT the tactics of the police in this case (toward the woman) were repulsive (Supreme CT). If police behavior is so outrageous that it shocks the conscious of the average person, due process violation on behalf of the police. (NEGATES CONVICTION) *Cops have to play fair* s

43

EXAM TIPS: IF YOU ARE GIVEN ANY GENERAL ESSAY: First identify the LAW When he gives a statute in an essay: go through statute under (___) of the statute- the mens rea and the actus reus is and then apply the facts-if he gives you dialogue- then these are words directly towards their intent -need to spit their words right back at them- they are reading themselves If you have 1 - what crimes can he be charged of- start with 1 crime- argue and describe Then another crime- argue and describe If you have multiple s go by the crime itself -and discuss each to that crime IRAC- not necessary- but put elements of the law first *Life is always more important then your property*