I.
Common Law Felonies (Ms. R. M. Lamb)
a. Murder-unlawful killing of a human being with malice aforethought, expressed or
implied
i. Unlawful-neither justifiable nor excusable (§ VI,f)
ii. Killing-conduct and result (“kill word”)
iii. Express malice
1. Intent to kill person killed
2. Intent to kill another person (transferred intent)
iv. Implied Malice
1. Intent to inflict serious bodily harm
2. Indifference to result
3. Felony murder-death in the course of committing another felony
v. Grading
1. 1st degree-“premeditation and deliberation”
2. 2nd degree-without “p & d”
b. Sodomy-crime against nature, that is carnal knowledge by any man or woman with any
brute animal or per anum by a man with any other man or with a woman
i. Consensual sodomy now constitutionally protected by Lawrence v. Texas, 539
U.S. 558 (2003).
c. Rape-unlawful carnal knowledge of a woman by force and without her consent
i. Marital rape not in category, qualifies as aggravated assault
ii. Carnal knowledge requires penetration, emission is split issue
iii. Force & consent:
1. Resistance to the utmost (no longer applicable)
2. No consent if insane, idiotic, or insensible
3. Intimidation can compel
4. Fraud in factum only, not inducement
iv. Evidence
1. Corroboration (no longer applicable)
2. Recent complaint (no longer applicable)
3. Cross-examination limited by 6th Amendment, Rape Shield laws
d. Manslaughter-unlawful killing of a human being without malice aforethought
i. Voluntary-intent to kill in passion or heat of blood, but:
1. Mere words are insufficient provocation
2. Mere trespass is insufficient provocation
3. Heat of blood cannot have cooled or had time to cool
ii. Involuntary
1. Intent to inflict mere bodily harm
2. Misdemeanor-manslaughter
e. Larceny
i. Simple- taking and carrying away of the personal goods of another of any value
from any place, with an intent to steal
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II.
III.
ii. Compound (Robbery)- taking and carrying way the personal goods of another of
any value from his person or in his presence, by violence of by putting him in
fear
f. Arson- willful and malicious burning of the dwelling house of another, either by night or
by day
i. Neither negligent nor privileged
g. Mayhem- maliciously depriving another of the use of such of his members as may
render him the less able in fighting, either to defend himself or be in the King’s army
h. Burglary- breaking and entering of dwelling house of another by night, with intent to
commit a felony.
i. Modern statutes exclude the nighttime requirement
i. United States v. Hudson, 11 U.S. (7 Cranch) 32 (1812) abolished application of common
law crimes, mandated the existence of a statute for prosecution.
Other Crimes
a. Specific Intent Crimes (ELFBARF) (MPC lumps these in with theft, generally)
i. Embezzlement
ii. Larceny
iii. False pretenses
iv. Burglary
v. Arson
vi. Robbery
vii. Forgery
b. Inchoate Crimes
i. Attempt
ii. Solicitation
iii. Conspiracy
Semantics and Statutory Interpretation
a. Semantics
i. Meaning
1. Intentional-Specific SOM (applies only to what I intend), logical universal
(applies to all instances of the word)
2. Literal-word + grammar=plain meaning (SAY)
a. Locutionary (pass the salt)
3. Conventional-plain meaning + context=utterance meaning (MEAN)
a. Illocutionary (Can you pass the salt?)
4. Personal-read in, unacceptable in principle
5. Perlocutionary (DO)-consequences of interpretation
ii. Ambiguity
1. Verbal-multiplicity of definitions
2. Syntactical-ambiguously oriented modifier
3. Contextual-internal sources of ambiguity, interaction with another
proximal statement
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IV.
iii. Vagueness-uncertainty of degree
iv. Generality-multiplicity of reference
b. Statutory Interpretation
i. Initial Questions
1. Who is involved?
2. What happened, factually and procedurally?
3. What do people want, practically and legally?
4. What line of reasoning gets each party what they want?
ii. Methodology
1. Text itself-hardcore meaning and logical extensions
2. Context
3. Case history
4. Problems or issues with text
5. Values (autonomy, liberty, truth, fair trial, LE, privacy, etc.)
a. Identification, relative rank, and impact of choice
iii. Types of Thinking: Reasoning About Rules
1. Authority (precedent)
2. Institutional (who should decide-court mandate or defer to legislature)
3. Rightness-deontological
4. Consequential-teleological
iv. Elemental Analysis-rooted in statutory language
1. Who-class of persons (person, whoever, etc?)
2. Conduct-verb, may be a kill word
3. Surrounding Circumstances
a. Liability-What makes the act wrong
b. Jurisdiction-Municipal/County/State/Federal
c. Grading-Degree
d. Venue-Where prosecuted
e. Law-As determined by law
4. Result-Consequence of conduct, may be kill word
5. Apply SOM, if any
Constitution
a. 4th Amendment (1791)-“Search and Seizure”
i. “The right of the people to be secure in their persons, houses, papers, and
effects, against unreasonable searches and seizures, shall not be violated, and*
no Warrants shall be issued, but upon probable cause, supported by Oath or
affirmation, and particularly describing the place to be searched, and the
persons or things to be seized”
ii. Governs only conduct of governmental agents, and applies to the states through
the 14th Amendment (Mapp).
iii. Egbert Benson’s rejected substitution of “and no warrant shall issue” for “by
warrants issuing” (Madison) inserted by committee.
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iv. * “, and”-conjunctive or disjunctive?
v. History
1. Arose out of two separate problems-arrest and search per se
a. Arrest-protect citizen-constables from tort liability
b. Search per se-protect property
2. Abatement of tools of religious, political, and economic suppression
3. Designed to end writs of assistance and general warrants
4. Combination of two issues is intended to place a magistrate between
the people and the government both to protect privacy and legitimate
lawful searches
5. Rule established pre-police, creating tension not only between issues
but between history and application
6. Rooted in liberty, but of whom? From whom? To do what? And with
what consequences to whom?
7. Each theory of liberty (English concrete, French abstraction, and
American pragmatism) tends to forget that liberty of the King’s subjects
presupposes the establishment of the King’s peace.
vi. The balance in a 4th Amendment inquiry is between individual privacy and
legitimate governmental interests
1. Imposition upon liberty took the form of search & seizure, which
required probable cause (pc).
2. New category of stop and frisk, which imposed a mere reasonability
standard, was introduced through Terry v. Ohio, 392 U.S. 1 (1968).
a. Reasonability of suspicion that suspect was armed warranted
stop and frisk for a weapon despite lack of pc (limited frisk).
b. Reasonability of suspicion dependent upon circumstances and
officer’s experience.
c. Focuses on reasonableness clause, not warrant clause (pc).
3. Reasonability further augmented in Adams v. Williams, 407 U.S. 143
(1972), wherein a reliable informant stated a suspect had a gun. Officer
reached for gun on informant’s word only. Lawful and reasonable as a
protective measure and need not be done as an enforcement tactic
(concealed weapons laws).
a. Also focuses solely on reasonableness clause.
b. Court ignored voluntary/involuntary element of search
c. Balance of LE and privacy, broadened LE interests from Terry.
Rehnquist decision under Burger expanded a Warren decision.
4. At arrest, a complete search for weapons and evidence on arrestee’s
person and in immediate vicinity is permitted, not limited to Terry frisk.
5. Objects in plain view can be seized without a warrant.
6. Olmstead v. United States, 277 U.S. 438 (1928)-Literal rendering of 4th
Amendment
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a. No S&S as 1) no trespass and 2) no material object seized
b. Strong dissents from Brandeis and Holmes have influence now
i. Maxim of unclean hands as a rule of inaction
7. Katz v. United States, 389 U.S. 347 (1967)
a. Overrules Olmstead and institutes expectation of privacy rule.
b. 4th Amendment does not create protected places (home) but
protects a person from invasion whether in public or private.
c. 4th Amendment not a blanket right to privacy
d. Mandate established for antecedent justification for
surveillance
8. Warrantless searches must still meet probable cause requirement as
though a warrant was issued (Wong Sun).
9. Illegally seized evidence inadmissible as “fruit of the poisonous tree.”
See Wong Sun.
th
b. 14 Amendment (1868)-“due process” and “equal protection”
i. Section 1: “No State shall make or enforce any law which shall abridge the
privileges or immunities of citizens of the United States; nor shall any State
deprive any person of life, liberty, or property, without due process of law; nor
deny to any person within its jurisdiction the equal protection of the laws.”
ii. Manson v. Brathwaite, 432 U.S. 98 (1977)
1. Burden of proof to show illegality of identification procedures placed on
defendant (shift from Wade).
2. Five factors for evaluating identification procedures, plus Marshall’s 6th
factor: Corruptive Effect of the process itself. This is a “totality of the
circumstances” test.
a. Opportunity of the witness to view the criminal at the time of
the crime
b. Witness’ degree of attention
c. Accuracy of the prior description of the criminal
d. Level of certainty demonstrated at the confrontation
e. Lapse between crime and confrontation
th
c. 5 Amendment (1791)-Self-incrimination
i. “nor shall any person be compelled in any criminal case to be a witness against
himself, nor be deprived of life, liberty, or property, without due process of law”
ii. “in any criminal case” oscillates between words of illustration and words of
limitation, no consistent treatment.
iii. History
1. Evolved as response to ecclesiastical courts and common law selfincrimination
2. Developed through William of Normandy’s conquest
3. Ecclesiastical courts used accusatory process, king’s courts used
inquisitorial process (trial by ordeal, oath, or battle)
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4. Retreat of church from ancient ordeal practices lead to trial by jury.
5. Consent had to be “obtained” for jury trial
6. Acts as a wild card in Constitutional analysis in letting the guilty go free
with little or no social gain.
iv. Early tests for compliance in pre-trial encounters used totality of circumstances
and voluntariness as guiding principles. Amorphous nature led to limited
application. Focus here is on due process element and not self-incrim.
v. Privilege is not enjoyed by corporations (documentation, Fisher)
vi. Right not to testify provides a corollary right to testify, but does not provide a
right to testify falsely (Nix).
vii. Miranda v. Arizona, 384 U.S. 436 (1966)
1. Expands right against self-incrim. to custodial interrogation
2. Abolishes case-by-case approach and establishes rules for all
subsequent interrogations
3. Applies to any significant deprivation of freedom, but does not apply to
general questions at a crime scene or to voluntary statements
4. Rights advisory must precede any custodial interrogations
a. Right to silence
b. Admissibility of post-warning statements
c. Right to counsel during interrogation
d. Provision of counsel for indigents
5. Privilege can be waived, but remains available
a. Heavy burden on State to prove waiver
b. Breaks in interrogation require new assertion of rights
6. Exercise of privilege not prejudicial
7. Enumerated rights are not constitutionally protected, but serve to
protect 5th Amendment rights, barring a better process.
8. Decision focuses on pressures of custodial encounters creating a
compelling environment.
9. Miranda applies to criminal proceedings pertaining to guilt or
punishment only, and establishes deterrent mechanism through
evidence exclusion.
viii. Pleading and Compulsion: North Carolina v. Alford, 400 U.S. 25 (1970)
1. Guilty pleas made solely to avoid death penalty are not considered
compelled under the 5th Amendment.
2. Test for a plea is whether a voluntary and intelligent choice is present
3. No due process right (5th or 14th) to have a plea accepted by the court
4. No due process right to jury trial in spite of plea
th
d. 6 Amendment (1791)-Right to counsel
i. “In all criminal prosecutions, the accused shall enjoy the right…to have the
Assistance of Counsel for his defence.”
ii. History
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1. Originally only provided right to those who could afford an attorney to
have one with them at trial. Has since been significantly broadened.
iii. Escobedo v. State of Illinois, 378 U.S. 478 (1964)
1. Confined to its facts by Miranda, do not reference
2. Established 6th Amendment shield to interrogation once counsel has
been requested, even in a pre-trial encounter. Very limited in its
application even before confinement
iv. United States v. Wade, 388 U.S. 218 (1967)
1. In-court identification tainted by improper pre-trial/post-indictment
line-up, once again invoking “fruit of the poisonous tree” idea.
2. Counsel should be present at line-up in order to protect right to counsel
and confrontation. Suspect not likely to identify prejudicial elements of
line-up. Does not apply to fingerprinting, taking of blood, or evidentiary
sampling as general knowledge of these processes allows for selfdetermination of prejudice.
3. See five factors employed in Manson, they apply here.
4. Burden for showing propriety of procedure placed on state (reversed in
Manson)
e. Role of Counsel
i. Strickland v. Washington, 466 U.S. 668 (1984)
1. Two-pronged test for efficacy of counsel
a. Incompetence
i. Deficiency of such a scale that counsel cannot be seen
as fulfilling 6th Amendment role
ii. Objective standard of reasonableness, “outside the
range of professionally competent assistance”
iii. “reasonable under the circumstances” trumps appeal to
any particular set of standards, and significant
deference should be given to judgment of counsel
iv. Hindsight is not a factor, but rather the inquiry must put
itself in attorney’s position at time of decision.
b. Prejudice
i. Inconsistent precedent (automatically granted if
incompetence shown vs. heavy burden on defendant)
ii. Test involves reliance upon outcome of the proceeding
iii. Requires a reasonable probability that, but for the error
in question, the result of the proceeding would have
been different
iv. Not solely outcome determinative, but fairness of result
must be considered as well.
ii. Nix v. Whiteside, 475 U.S. 157 (1986)
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V.
VI.
1. Cert granted to evaluate 6th Amendment implications of counsel
refusing to cooperate with presentation of knowingly perjurious
testimony
2. Breach of ethical standard alone does not justify breach of 6th
Amendment right to counsel
3. An attorney’s duty to advocate the defendant’s cause is “limited to
legitimate, lawful conduct compatible with the very nature of a trial as a
search for truth. Although counsel must take all reasonable lawful
means to attain the objectives of the client, counsel is precluded from
taking steps or in any way assisting the client in presenting false
evidence or otherwise violating the law.”
4. Attorney must attempt to dissuade a client from perjury when such an
intention is announced.
Wong Sun and Suppression
a. Wong Sun v. United States, 371 U.S. 471 (1963)
i. “fruit of the poisonous tree” exclusionary principles at work (on a 4th
Amendment basis)
ii. “Whether, granting establishment of the primary illegality, the evidence to
which instant objection is made has been come at by exploitation of that
illegality or instead by means sufficiently distinguishable to be purged of the
primary taint.”
iii. One can only reference his own personal rights when seeking exclusion of
potentially tainted evidence. Evidence illegally secured from one person will be
excluded for that person, but if it implicates another that other person cannot
avail himself of the exclusion since his own rights were not infringed. An
intervening event that breaks the chain of illegality purges the taint
(attenuation)
b. Suppression
i. “Fruit of the poisonous tree” is applied to both 4th and 6th Amendment
violations (Wong Sun and Wade, respectively).
ii. Look to Hale for 5th Amendment suppression
iii. See suppression drill in handout no. 3.
Criminal Justice Theory
a. Ideology of Criminal Justice
i. Traditional-Just deserts; people are moral, knowing and free. Balance of
good/evil
1. Deontological; Kant
ii. Classical-Deterrence; people are rational, knowing and free. Balance of
benefit/burden
1. Utilitarian approach; Bentham and Mill
iii. Modern-Incapacitation/rehabilitation; people are determined (psych/econ).
Balance of desirable/undesirable
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iv. Post-Modern-deconstruction of self, no inherent meaning, values are subjective,
renders civil liberties unintelligible
v. Civil Liberty-Minimal governmental involvement
b. Legality-Rule of Law
i. Precept
1. Rule-Layperson’s conception (12 people on a jury, bright line)
2. Standard-Reasonability
3. Principle-Presumption of innocence
4. Doctrine-Consent
5. Conception-classification (Civil v. Criminal)
ii. Classic Formulation
1. Paul Feurbach (1775-1833)-Deterrence theory of criminal law (nulla
poena sine logo, nulla poena sine criminale, nullum crimen sine peona
legali; no punishment without law, no punishment without a crime, no
crime without a legal punishment)
2. Jeremy Bentham (1748-1832)-First law is Liberty (do anything you want,
except for these enumerated prohibited actions); rather than punishing
a deserving culpable citizen (just deserts)
iii. Theory
1. Statement of principles (as a limitation on centralized power)
2. Allocation of powers (distribution across legislative, executive, and
judicial branches)
3. Theory of criminal law (deterrence/just deserts/incapacitation)
iv. Roots
1. Roman-Law as the regulation of procedures and punishments (codified
with different rights and responsibilities for citizens, strangers, and the
conquered; the conquered had the most individual freedom of action)
2. Germanic-Law as reason, reason as custom (king was bound by reason)
3. English Law-Magna Carta (1215); Petition of Right (1608); Glorious
Revolution (1650) (ordered liberty)
4. French-Law originally derived from royalty (royal prosecutors executing
royal decrees; French Revolution ultimately displaced the “ancient
regime” and distributed power. This is based on the French
misunderstanding of the value of “separation of powers” in British law.
This misunderstanding became the foundation of our legal system.)
5. Puritan Law- Massachusetts Bill of Rights (1780); Joining of law and
scripture; rule of law, not of man. How has this held up, when we
consider the power of judges (individually and as groups behind the
bench) in determining the law as opposed to Congress and the
President.
v. Criticism
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1. People as rational (hardly)-Rational person is the basis for neoclassical
economic theory (laissez-faire market; golden hand), Marx argues that
people are not rational but socioeconomically determined in their
behavior, Freud point s to psychological factors undermining rationality
of the individual. Theoretically the more educated (rational) a person
the more rational and legal their behavior (counterexample provided is
the current Wall Street crisis).
2. Law can be set out clearly & simply (hardly)-There is a strong confusion
in law between standards and rules. Requires constant revision and
clarification, due to limits of language and changing social
circumstances.
3. A set of common values is available as a basis for the law-Idea has long
since been outdated (Industrialization, mass transit, & technology have
created a society with a vast array of values).
vi. Consequences
1. Common Law Crimes-established judicially (1600-1860); power
rendered legislative
2. Strict Construction/Rule of Lenity- When you have an ambiguity that can be
read two ways, must read in the light that is most favorable to the defendant.
a. Rationalized as fair notice, limitation on court, and legislative
mandate of Article I (absent in Article III)
3. Vagueness-Semantic (fuzzy edges of meaning) and legal (ambiguity and
vagueness void content)
4. No ex post facto criminality
5. No bills of attainder
6. Presumption of innocence
c. Actus reus/Mens rea
i. State of Mind (SOM) in General
1. Common Law Roots
2. Model Penal Code (MPC)
a. Reads in reckless for gap-filling purposes on conduct and liability
(§ 2.02 (3))
b. Applies strict to rest of S.C.
3. Federal
a. Old rule is Morissette-scienter
b. Reads in knowing for absent SOM on conduct (Bailey), liability
(Staples), and result (Gypsum).
c. Applies strict to grading (X-Citement), venue, and jurisdiction
(Feola).
d. Law is split on strict/knowing (bigamy/income).
e. Affirmative defenses are implied, burden by preponderance on
defendant (Bailey).
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4. States
a. All over the place, no consistent approach
b. Applies strict or reckless to grading
ii. Morissette v. United States, 342 U.S. 246 (1952)
1. Establishes willingness to read in knowingly to fill in statutory SOM gaps
(for conduct), rather than strict as requested by state.
2. Defendant needed to somehow know that his behavior was wrong
(sustaining theory of evil mind and evil act). Defendant not held liable
for an honest mistake of fact (ownership of scrap metal).
3. Strict only read in for regulatory crimes with minimal punishments and
attached stigma (see Dotterweich).
iii. United States v. Bailey, 444 U.S. 394 (1980)
1. Federal case, so conduct SOM missing in statute is read in as knowingly
(when legislative intent absent or ambiguous)
2. Recognizes gradation of culpable SOM from MPC (P,K,R,N)
3. Knowing applied to “escape,” rebutting defendant insistence on specific
intent for escape (purpose).
4. Duress/necessity defenses inapplicable:
a. Prison conditions not a sufficient threat to justify flight
b. No justification given for continued absence
iv. United States v. X-Citement Video, Inc., 513 U.S. 64 (1994)
a. Extends knowing across entire statutory section following it,
including subsections, such that one must know that the
material in question is a depiction that actually portrays a minor
engaged in sexual acts. Denies “natural language” reading in
favor of avoiding constitutional ambiguities (criminalizing
innocuous behavior; maintaining 1st Amendment integrity) and
to abiding the apparent legislative intent (punish those
knowingly involved in child pornography trade).
b. This reading is a response to apparent syntactical ambiguity
c. Preserves strict liability for face-to-face sexual dealings with a
minor, knowing only applied to depictions (only constitutionally
mandated SOM).
d. Mistake
i. Fact
1. Regina v. Prince
2. People v. Olsen
3. Tyson v. State
ii. Law
1. Generally not a defense. Justice is meted out as though all citizens are
aware of the law. To do otherwise would allow individual
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e.
f.
g.
h.
i.
j.
k.
l.
understandings of the law to overrule legislative and judicial opinion
(See exculpation for more).
Vicarious Liability
White Collar Crime
i. Horning v. District of Columbia, 254 U.S. 135 (1920)
ii. New York Central & Hudson River R. Co. v. United States, 685 P.2d 52 (Cal. 1984)
iii. United States v. Park, 421 U.S. 658 (1975)
Causation
i. People v. Warner-Lambert Co., 414 N.E.2d 660 (1980)
ii. Stephenson v. State, 179 N.E. 633 (1932)
Exculpation
i. Justification
1. People v. Goetz
2. State v. Kelly
ii. Excuse
iii. Insanity-Intoxication
Attempt
Complicity
Conspiracy
RICO
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