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There are Constitutional prohibitions in criminal law, including the rule of legality – an act must be a crime first, before the act is committed. The Constitution also guarantees Due Process, the right to notice and the right to be heard.
There can be no ex post facto laws - laws that retroactively change the legal consequences (or status) of actions that were committed before the law was enacted.
1. Conduct (Actus Reus)
Even if immediate act was involuntary, an expanded time frame could make person culpable to entering into such a state.
Possession is the knowing act of exercising dominion and control over a thing. The criminal law recognizes that more than one person can possess the same item, a concept known as “joint” possession. Actual possession is when a person has an item at hand or within reach. Constructive possession is found when actual possession is lacking but the person nonetheless exercise some sort of control over the item.
Purpose (consciously desired result), knowing (aware result will certainly occur), reckless (consciously disregarding a substantial risk), and negligence (should have known). All but negligence satisfy the mens rea requirement for malice.
Specific intent crimes require the mental state of purposeful or knowing. Specific intent = PK (purposeful and knowing)
Specific intent crimes: Larceny, embezzlement, false pretenses, robbery, forgery, burglary, solicitation, conspiracy, attempt, assault, 1st degree pre-meditated murder.
General intent crimes require any one of the four main mental states –PKRN at a minimum
General intent crimes: Battery, rape, false imprisonment, kidnapping
Malum in se are acts that are bad in and of themselves. Malum prohibitum are acts that are only prohibited as a result of law, not of inherent moral fault
Most ‘strict liability’ offenses are malum prohibitum, for strict liability mental state is not required, mistake is no defense, and the policy goal is deterrent, not retributive
The following are methods of statutory interpretation: Plain language meaning of the statute, Purpose of the statute taken as a whole, Phrasing (construction with commas), Ordinary v. technical meaning, Prior law on the subject, Harm or wrong targeted, End to be accomplished, Legislative history/circumstances of adoption of legislation, Prior interpretations of the same or similar statute or the same or similar words/phrasing (common law)
Mistake, ignorance, or accident can negate mental state (either direct or circumstantial evidence)
Can be defense to specific or general intent crimes – can negate all crimes
Strict Liability negates Mistake of Fact as a defense (because no mental state is required)
Ignorance of the law is no excuse (except when law requires knowledge of the crime)
Void for vagueness (violates due process clause requirements of notice)
Entrapment / Estoppel: when public official charged with enforcing the laws gives permission for an action, the gov’t is stopped from punishing action taken in reliance on the official’s permission (or statute is interpreted by court to allow such action)
The intoxication rule holds that (1) voluntary intoxication from drugs or alcohol (2) can negate the specific intent required for a crime.
Voluntary intoxication might, depending on the facts, destroy purposeful or knowing behavior (specific intent crimes only)
Does not apply to recklessness or negligence OR bad faith intoxication to create criminal defense OR involuntary intoxication, which is different under the law (involuntary intoxication is a complete defense to general and specific intent crimes)
A justification renders a nominal violation of the criminal law lawful and therefore exempt from criminal sanctions. An excuse concedes that the violation is unjustified, but seeks to exempt the particular actor from responsibility for the unjustified act.
Self Defense is (1) Actual and (2) Reasonable Belief of (3) Imminent Bodily harm permits (4)Proportional defense. A Run Batted In By the Pirates
Actual = subjective
Reasonable = reasonable person under the circumstances
Immanent = Majority Rule – No duty to retreat prior to using deadly force.
Proportionality = no excessive force allowed
A necessity defense may be triggered when an actor engages in what would otherwise be a crime in order to avoid a greater harm. Commentators and courts commonly view necessity as a “true affirmative” defense.
The necessity which justifies homicide is of two kinds: The necessity of self-defense and the necessity which relates to public justice and safety.
There are three elements of the duress defense: (1) an immediate threat of death or serious bodily injury, (2) a well-grounded fear that the threat will be carried out, and (3) no reasonable opportunity to escape the threatened harm.
One may avoid liability for criminal acts by asserting that he or she was insane at the time of the crime.
Policy rationale: It is unfair to punish people for acts that result from mental illness. Punishing insane people does not have a deterrent effect, as it is difficult to deter acts resulting from mental illness.
The M’naghten Test: Under the M’naghten test, to establish a valid insanity defense, one must prove that due to mental illness, one:
a. Did not know the nature and quality of the act, or,
b. If one did know the nature and quality of the act, one still did not know the act was wrong.
The Model Penal Code Approach Under MPC § 4.01, one is not guilty by reason of insanity if one:
a. Lacks the ability to appreciate the wrongfulness of the conduct, or,
b. Lacks the ability to conform one’s conduct to the requirements of the law.
Malice aforethought is comprised of – (1) intent to kill, (2) intent to do serious bodily injury, (3) extreme recklessness, and (4) felony murder – can support a charge of murder. Malice can be express or implied. Express malice requires premeditation and deliberation or intent to kill or inflict serious bodily harm.
Malice requires the defendant to act with purpose, knowledge, or reckless disregard for the outcome of his actions.
Criminal Law is the (1) Unlawful (2) killing of another human being with (3) Malice aforethought
Unlawful = no justification or excuse (i.e. no affirmative defenses)
Killing of another = D actually and proximately causes death of another. There is no intervening cause; death is attributable to D.
Malice = purpose, knowledge or gross recklessness mental state (PKorR) “Aforethought” has no real current significance. Purpose = desire killing of another. Killing = understand resulting death of another is practically certain to occur. Gross Recklessness = knowingly taking an unreasonable and substantial risk that might cause the death of another.
Defense of others
Provocation manslaughter is when (1) D Kills another because (2) Actually and (3) Reasonably Provoked and (4) no Cooling Off. KARP CO
D Kills = not necessarily intentional, but often is.
Actually provoked = demonstrated by perspiring, emotional, or anger
Reasonably provoked = a reasonable person in same circumstances would be so provoked
No cooling off = no time passes to “cool off” from provocation – both objectively (no reasonable person would have cooled off) and subjectively (D did not actually cool off between the provocation and the killing.)
The provocation doctrine typically reduces murder to manslaughter.
D goes back the next day and kills the victim
Felony murder is (1) killing of another human being (2) while committing or attempting (3) an inherently dangerous felony.
Killing = intentional or unintentional (an accidental) killing of another person, generally a bystander or police officer
During commission of felony/attempt (Death is caused directly by the felony/attempted felony, and death is caused during the felony or attempted felony, meaning prior to the felons getting away in safe repose, and felony is dangerous and independent of murder.
Inherently dangerous felony = Burglary, Arson, Rape, Robbery, and Kidnapping. BAARK.
DID you go to KFC? Dangerous felony, Independent, and Direct; Killing during Felony Crime
not a felony, felony over, not an inherently dangerous felony, felony is not independent of crime charged, killing a co-felon, under the “agency theory” co-felons didn’t cause the killing, but bystander or police did (minority approach)
(1) Legislators can limit the scope of the felony-murder rule by enumerating or listing the felonies that can support a felony-murder rule by enumeration or listing the felonies that can support a felony-murder conviction.
(2) Courts use the inherently dangerous felony rule to limit the types of felonies on which the prosecution can base a charge of felony murder.
(3) Like the inherent danger limitation, courts use the merger doctrine to limit the types of felonies upon which the prosecution can base a felony-murder charge. A felony that “merges” is not “independent.”
(4) The agency limitation does not focus on the type of felony. Instead, it narrows felony murder by restricting the circumstances under which a felon can be held liable for felony murder. The analysis tends to focus on two issues: (1) was a shooter a felon? And (2) was the victim a felon?
The mere coincidence of homicide and felony is not enough to satisfy the requirements of the felony murder doctrine. It is necessary to show that the conduct causing death was done in furtherance of the design to commit the felony. Death must be a consequence of the felony and not merely coincidence.
1) Retributive- claims that punishment is justified b/c people deserve it. Tend to be backward looking b/c seek to justify punishment on the basis of the offender’s behavior in the past
2) Utilitarian- Believes that justification lies in the useful purposes that punishment seeks. Tend to be forward-looking b/c they seek to justify punishment on the basis of the good consequences it is expected to produce in the future. The purposes are:
1) Retribution - eye for an eye; in the name of the state; act was so egregious that deserves punishment
2) General Deterrence - Punish person in order to send a message to the general population - show that if engage in certain activity, this is the punishment; use this person as an example for the rest
3) Specific Deterrence - punishing the same person so they will not do the same thing again
4) Rehabilitation – Incarcerate person to TREAT her so she will not do s/t like this again
5) Restraint/Incapacitation - (custody or restraint) - Incarcerate dangerous people to get them off the street and separate them from society, prevent future harm by these people
6) Public Education – Communicate what values are important as a society by determining what we punish. We d/n really know what we stand for until we in fact know what we will tolerate. Tells us what we as a society are all about
Rape Trauma Syndrome (RTS) describes a collection of common reactions that a sexual assault survivor may manifest. It can serve to explain the conduct of a survivor that might be perceived by laypersons as inconsistent with how they expect a sexual assault survivor to act. In this way, it might be used to explain unanticipated conduct, like a delay in reporting a rape or the calm demeanor of a survivor after rape.
The adjective inchoate – meaning something in an initial or early stage, only partially developed – is also used to describe attempt and solicitation.
Attempt = (1) D commits an overt act while possessing the (2) specific attempt to commit crime.
Overt act = an act beyond mere preparation; also known as a substantial step to commit the crime
Intent = purposeful or knowing conduct (PK)
Abandonment is generally no defense at common law – in those jurisdictions where it is, it must be complete and voluntary.
There are several tests used for the “act” requirement in attempt crimes. (1) The Common Law approaches usually measure how close to completion the conduct comes, such as within a “dangerous proximity” or “last proximate step” to completing the crime. (2) The Model Penal Code asks how far from the start the conduct has come, namely whether the conduct constituted a substantial step towards commission of the crime.
Factual impossibility is defined as an attempt to commit a crime that would have been completed but for unforeseen facts. It is not a defense to attempts.
The first situation that courts sometimes label “legal impossibility” occurs when a person commits or attempts to commit what he believes is a crime but in reality it does not qualify as a crime under the law” or “when the law does not prescribe the goal that the defendant sought to achieve.”
The second type of situation that courts have treated under legal impossibility involves errors by the defendant regarding some legal aspect of the situation that makes completion of the crime possible.
Battery is (1) Unlawful (Negligent) (2) Harmful or Offensive (3) Touching of another person. Not HOT.
Unlawful = negligent (unreasonable) touching at a minimum (N); could also be reckless, knowing or purposeful touching (PKR)
Harmful/Offensive = reasonable person test (i.e. whether a reasonable person would consider the contact offensive/harmful.
Touching = anything connected to a person, such as clothes.
Consent (express or implied by common custom)Civil touching (like a tap on shoulder)
Criminal Assault is a specific intent crime and involves no touching. Assault can occur in two ways: (1) as an attempted battery OR (2) as the intentional creation of a reasonable apprehension in the victim of the imminent bodily harm.
Solicitation occurs when one encourages or asks another to commit a crime. If the other person refuses, a solicitation has nonetheless occurred. If the other person accepts, a conspiracy charge will be introduced instead. If the crime actually occurs, the original solicitor will instead be charged as an accomplice to the substantive crime.
Solicitation is punished because it often leads to danger and people should be protected from instigators.
MPC § 5.02(3) permits renunciation as a defense so long as it is voluntary and the solicitor prevents the crime from occurring.
Under the doctrine of complicity, those who assist or encourage another to commit a crime may be held liable for that crime even though they did not themselves perform the act specified in the statute defining the crime. This is sometimes known as “derivative” liability because the accomplice’s liability derives from that of the person who engages in the prohibited conduct, known as the principal or the primary actor.
Conspiracy is (1) Agreement to commit a crime (2) and overt act (at later common law) between (3) two or more people; (4) who intend to agree to commit the crime together.
Agreement = partners in crime; express or implied meeting of minds
Over Act = any act in furtherance of the crime
Two people who mean it = bilateral approach
Dual Specific intents = acting with purpose or knowledge
Person assists crime without agreeing
Withdrawal and subsequent thwarting of co-conspirators under Model Penal Code
There must be two specific intents to meet the requisite mental state (1) to enter into the agreement AND (2) to accomplish the conspiracy’s goal. Without both, a defendant has not committed conspiracy.
A bilateral conspiracy requires two persons who intend to agree and commit the object crime and who agree to do so. A unilateral conspiracy approach, the minority rule, only requires one of the two persons to really intend to agree and to commit the crime. The unilateral jurisdictions thus apply to situations in which an undercover police officer “agreed” to commit a crime with a perpetrator.
Conspiracy is a distinct evil which may exist and be punished whether or not the substantive crime ensues. The combination in crime makes more likely the commission of other crimes and decreases the probability that the individuals involved will depart from the path of criminality.
Larceny is (1) trespassory (2) taking and carrying away of (3) another’s property (4) with intent to steal it.
Trespassory = without permission
Taking and carrying away = move item even a short distance (no significant distance required)
Another’s property = personal property, not real property
Intent to steal (a the time of the taking) = specific intent (PorK) Must intent to permanently dispossess owner of chattel. (includes wrongful borrowing, followed by later decision to permanently deprive.
Take another’s abandoned property
Only intend to borrow property of another and then return it
Take property of another under mistaken claim of right
Embezzlement is (1) Lawful possession and then (2) fraudulent conversion.
Possession = lawful dominion and control over a thing; generally temporary.
Fraudulent conversion = substantially interfering with the rightful owner’s possession or use as a result of deception (stealing is on form of “substantially interfering”)
D does not obtain lawful possession
D only obtains custody over the thing, not possession (custody means having very limited authority over the thing temporarily) If converted after custody = larceny
D intends to return the exact property taken
D took property based on a claim of right
The key difference between Embezzlement and Larceny is that the D must already have lawful possession of the property before a taking can be considered Embezzlement.
False pretenses is (1) Obtaining title to chattels of another (2) by fraud – intentional false statements
Title = ownership (buyer-recipient is not expected to return the item)
Fraud = deceit; intentional false statement used to mislead another to transfer ownership.
The key different between false pretenses and larceny by trick is that in larceny by trick, the D get only possession of the property through fraud, whereas, in false pretense, the D gets title (ownership).
Arson is a common law property crime. It is the (1) Malicious (2) Burning of the (3) Dwelling House (4) of Another. Mom Burned Dad’s House Again!
Malice = purpose, knowledge, or reckless (PKR)
Burning = charring, changing physical condition
Dwelling house = resident lived there, not necessarily owner – stays overnight, like a dweller would
Of another = cannot be an arsonist of own home
Scorching or blackening (does not physically alter composition), not charring the house
Negligent behavior started the fire
All residents have moved out at the time the conduct occurs
Burning business where nobody resides
Burning one’s own house
Burglary is (1) Breaking and (2) Entering the (3) Dwelling house of another (4) at Night (5) with Intent to commit Felony Therein. BED is NIFTy
Breaking = actual or constructive breaking. To break, the defendant must create some kind of opening by at least minimal force. Breaking can also mean gaining entry by fraud, threats or intimidation.
Entering = body part crosses into house
Dwelling house = resident, not ownership necessarily – someone sleeps there
Night = no natural light to see the face of another
Intent to commit felony = purposefully or knowingly breaking and entering to commit larceny or assault on inhabitants; assessed at the time of entry
Entry by consent of resident without fraud
Not a dwelling
Not at night
Entering through already open window (no breaking)
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