A. Factors in criminal law a. State of mind i. Negligence 1. Two forms a. Ordinary i. Doing something which a reasonably prudent person would not do or the failure to do something which a reasonably prudent person would do under similar circumstances to avoid injury to themselves or others b. Gross 1. Goes beyond ordinary negligence. A negligent act which is aggravated, reckless or flagrant and which is such a departure from the conduct of an ordinary and prudent person ii. Intentional b. Action i. Satisfying the elements of the particular crime B. Factors in punishment a. Deterrence b. Retribution c. Rehabilitation d. Incapacitation C. Mens Rea a. Often times will be an element of the crime i. Strict liability has no mens rea b. 4 categories i. Purposely 1. Traditionally known as intent 2. Wanted effect to be produced ii. Knowingly 1. One of the three a. Is aware of the fact i. Practically certain b. Correctly believes it exists c. Suspects risks exist but avoids confronting suspicion iii. Recklessly 1. Knows of but disregards substantial risk 2. Risk is unjustified 3. Gross deviation from typical standard of care 4. Looks to subjective intent a. Knowingly does not look to intent 5. Willful blindness a. Seeks to avoid knowledge iv. Negligently c. Expert witnesses may not state opinion that defendant could or could not form mental state d. Intoxication i. Two forms 1. Voluntary a. Knew substance was intoxicating 2. Involuntary a. ii. Is never a defense in Florida 1. Involuntary is a defense under MPC and common law 2. Voluntary may be a defense if it negates mens rea a. Must be so impaired as to satisfy test for insanity i. Test depends on jurisdiction 1. Florida a. Not knowing right from wrong 2. MPC a. Not knowing right from wrong OR b. Having irresistible impulses e. Insanity i. Barrier to mens rea ii. At time crime is committed 1. Defendant must prove they were insane iii. Does not know right from wrong iv. Irresistible impulse test 1. Lacks capacity for self control 2. Shows inability to conforming to law 3. Does not apply in Florida f. Age i. Before 7 cannot form mens rea ii. After 14 can form D. Actus rea a. The actual act committed b. Done voluntarily i. Not characterized by 1. Reflex or convulsion 2. Bodily movement during unconsciousness or sleep 3. Conduct during hypnosis 4. A bodily movement that is not a product of effort or determination by the actor c. Not acting is rarely a crime i. Exceptions 1. Legal duty 2. Parties who assume duty then do not act 3. Contractual duty E. Homicide a. Common law definition of murder i. Comes from Keeler 1. Unlawful 2. Killing of a human being with malice or forethought a. Malice/forethought shown by i. Intent to kill ii. Depraved heart 1. Meets recklessness standard iii. Intention to inflict serious bodily injury iv. Felony murder b. Florida i. Any of the below will qualify for first degree 1. When perpetrated for a pre-meditated design a. Forethought requirement 2. When committed by person in perpetration or attempt to perpetrate any of the following (must be inherently dangerous) a. Arson b. Sexual battery c. Murder d. Stalking e. Etc. 3. Distribution of a controlled substance a. Drugs must be proximate cause of death ii. Second degree 1. Unlawful killing of a human being when perpetrated by any act imminently dangerous to another and evincing a depraved mind regardless of human life, although without any premeditated design to effect the death of any particular individual, is murder in the second degree a. Parties do not have to pull trigger to be part of a homicide i. If part of a conspiracy, co-conspirators may be held liable for death b. Depraved mind iii. Third degree 1. Unlawful killing of a human being committed during an act not listed for felony murder c. Criminal homicide i. Purposely, knowingly, or recklessly is responsible for death of another human being 1. Purposely/knowingly/recklessly=murder 2. Negligent=manslaughter F. G. H. Attempt a. Elements i. Purpose to commit the target offense ii. Conduct constituting a “substantial step” toward commission of the target offense b. Inchoate crime i. Anticipatory crime 1. Crime before the actual crime 2. Does not merge ii. Must do something that is a real attempt/step toward committing the crime c. Sentencing i. Varies based on jurisdiction 1. Will usually be less than actual completion a. Still be a felony d. Requires intent i. Does not apply to second degree murder/manslaughter e. Attempted felony murder is possible f. Defenses i. Abandonment 1. Complete and voluntary change of mind a. “Renunciation” b. Must be voluntary i. Not voluntary if 1. Scared by law enforcement c. Must be complete i. Cannot just delay ii. Legal impossibility 1. Defense at common law and MPC 2. Occurs when a. Not a crime iii. Factual impossibility 1. Defendant is unaware of factors which make committing the crime impossible a. Shooting into empty house when you don’t know it is empty iv. Defense to conspiracy 1. Must take steps to prevent crime v. I. Solicitation a. Common law misdemeanor i. Communicating with others to plan a crime ii. Inviting, requesting, commanding, hiring or encouraging another to engage in conduct constituting any felony or misdemeanor regardless of the grade of the offense solicited b. MPC i. Elements 1. Actors purpose is to promote or facilitate the commission of a substantive offense 2. With such purpose, he commands, encourages, or requests another person to engage in conduct that would constitute a crime, or would establish the other parties complicity in the commission or attempted commission ii. Judged on same level as target offense iii. Defense 1. Renunciation a. Voluntarily b. Convinces, or prevents the other party from committing crime J. Conspiracy a. Common law i. Agreement, express or implied between two or more persons to commit an illegal act or commit a legal act by illegal means b. MPC i. No person may be convicted of conspiracy other than a first or second degree felony without an overt act by a party to the conspiracy ii. Elements 1. Agrees with one or more people to engage in conduct that constitutes a crime or an attempt to solicitate to commit such crime OR 2. Agrees to aid such persons in the planning or commission of such crimes c. When seller of legal goods to an illegal enterprise has interest in the illegality they may be implicated for conspiracy i. Elemental 1. Direct evidence that he intends to participate OR 2. Through an interference he intends to participate based on a. His special interest in the activity OR b. The aggravated nature of the crime itself d. Do not have to know you are committing crime i. United States v. Feola e. Impossibility is not a defense f. Helping a party after the fact does not make you part of the conspiracy K. L. Theft a. Common law i. Larceny 1. Trespassory taking and carrying away of personal property that belongs to another a. Does not have to be trespass to land 2. Specific intent crime a. Must intend to steal property ii. Larceny by trick (embezzlement) 1. Using fraud 2. Extortion 3. Finding mislaid property a. Must report iii. Robbery 1. Theft with violence or threat of violence b. MPC i. Consolidates theft to one crime M. Burglary a. Elements (common law) i. Breaking ii. iii. iv. v. 1. Either actual or constructive 2. Does not need to cause damage 3. Look for force to get in at common law Entering 1. To any degree 2. Actual or constructive Dwelling of another 1. Florida includes structure or conveyance At night 1. Does not apply to Florida or MPC Intent to commit a felony N. Defenses a. Insanity i. See above b. Self defense (justification) i. Must use reasonable force (proportional) 1. May not use deadly force for property 2. Self defense of property must be in the moment a. Hot pursuit 3. May not be reckless a. Result in manslaughter charge 4. Some jurisdictions require retreat a. Florida does not 5. May not be initial aggressor ii. To use deadly force 1. Should be felony a. Burglary b. Arson c. Rape d. Robbery e. Kidnapping 2. May not be to defend property 3. Imminent 4. iii. Battered wife 1. May introduce evidence c. Excuse defenses i. Duress 1. Common law a. Committed the crime due to threat of imminent death or bodily harm i. Can be to third party b. Committing the offense is the only way to mitigate threat c. Does not apply to murder ii. Intoxication 1. Extremely narrow 2. Covers alcohol and drugs 3. Voluntary intoxication may be a mens rea defense a. Can not form intent d.
