lOMoARcPSD|12898255
Criminal Law - Course Overview
Criminal Law (University of Michigan)
StuDocu is not sponsored or endorsed by any college or university
Downloaded by Isabella Henry (isabella.henry20@gmail.com)
lOMoARcPSD|12898255
Murder
COMMON LAW
MURDER: The unlawful killing of another
human being with malice aforethought
4 Kinds of Intent = Malice Aforethought
1. intent to kill (aware that death would result from actions,
even if not desired; intend to kill or know w/ substantial
certainty that death would result)
2. intent to cause great bodily harm (resulting in death)
3. Depraved Heart (extreme recklessness/ wanton & willful
disregard for risk of human life/ abandoned and malignant
heart- malice aforethought implied when no provocation
and aware of risk but ignores it = People v. Knoller)
4. Felony Murder (if intent to commit felony & death results ~
strict liability for homicide)
intent)
- Res Gestae (the whole transaction of the crime, from
start to finish); escape is part of the crime; People
v. Fuller (high speed chase death = felony murder)
- Inherently Dangerous - limiting F-M; People v.
Howard (crime not inherently dangerous in abstract, no
F-M)
Unintentional
Murder
-Intent to cause great
bodily harm
-depraved heart
-Felony-Murder
Statutory Considerations:
Most states divide murder
(killings with malice
aforethought) into degrees
higher penalties where D is
more culpable
Most serious murders = 1st
All other murders = 2nd
Killings lacking malice
aforethought = manslaughter
Negligent homicide = gross
negligence
MPC Article 210: Criminal Homicide p.1039
Felony-Murder (Strict Liability)
homicide during the commission or attempted
commission of a felony
- merger doctrine = no bootstrapping~ People v.
Smith (F-M not applied to inherently assaultive criimes,
violate due process & no deterrence value) ; People v.
Ireland (assault results in death, no F-M ; must prove
Year & a Day Rule
No murder unless victim died
w/in one year + day
causation not established
* eliminated by most
statutes b/c medical
improvements
- Agency Theory/ Proximate Causation (F-M does not
apply when person who directly causes death is
not one of the actors involved in underlying felony
and their act is not illegal. The thing imputed
from felony to hold accountable for murder =
malice not the act); State v. Sophophone
First-Degree:
committed in a particular way, during commission of
certain enumerated felonies, or
" willful, deliberate, and premeditated"
How to tell if it was premeditated?
- Hatfield (sufficient duration for accuesd to be fully
consciousl of what he intended)
- Clifford ( only necessary it came into being at time of
killing, or any time before)
- Shrader (intent to kill only for instant)
What about Intent?
- really have to intend to kill.
- Midgett (intended to abuse his son, not kill him =
second degree)
- Forrest (intended to kill his father, so first stands (even
though moral culpability feels less)
§ 210.2: Murder (exception 210.3(1)(b)
(1)(a) committed purposely or knowingly; or
(1)(b) (felony-murder) committed recklessly under
circ. = extreme indifference to human life.
Recklessness and indifference presumed if actor is
engage or is an accomplice in the commission of,
or an attempt to commit, or flight after commiting or
attempting to commit robbery, rape, or deviate
sexual intercourse by force or threat of force,
arson, burglary, kidnapping or felonious
escape.
(2) murder = first degree felony; may be sentenced
to death following (210. 6)
Felony-Murder rule has a 13-page
critique, and MPC states it is
"indefensible in princple)
Mens Rea : Purposely,
Knowingly, or
Reckless disregard for
human life, connect to
enumerated felony
How to tell if it was
Deliberate and
Premeditated?
State v. Jackson
- no provocation from the
deceased
- conduct and statements of
D before/after killing
- Threats/declarations D
before/during course
- Ill-will or previous difficulty
between parties
- Dealing of lethal blows after
deceased was helpless
- Evidence of brutal killing
- Nature/ # of wounds
Voluntary Manslaughter
Involuntary Manslaughter
VOLUNTARY
MANSLAUGHTER:
INTENTIONAL HOMICIDE
COMMITTED IN (1) the
sudden heat of passion upon
(2) adequate provocation
without (3) time to cool-off
and with (4) a causal
connection between
elements.
INVOLUNTARY
MANSLAUGHTER:
UNINTENTIONAL HOMICIDE
resulting from lawful act that
was performed in a criminally
negligent or reckless way or
it was an unlawful act.
Adequate Provocation
1. Extreme assault/ battery
2. Mutual Combat
3. D's own illegal arrest
4. Injury or serious abuse
of close relative
5. Sudden discovery of
spouse's adultery
Recklessness is less than
depraved heart not a
wanton and willful disregard
for human life.
Difference between
MURDER and
MANSLAUGHTER is
the presence of
Malice Aforethought
Mere words not enough
Girouard v. State
words would need to be accompanied
with conduct indicating threat of bodily
harm.
Must be causal connection between the
provocation, passion, and act.
Neglient Homicide @
Common Law was
really just a type of
involuntary
manslaughter
less serious than
depraved heart, but
more than civil
negligence
MISDEMEANOR-MANSLAUGHTER:
Unintended homicide that occurred durng
the commission of an unlaful act not
amounting to a felony
§ 210.3 MANSLAUGHTER (1) criminal homicide constitutes
manslaughter when: (a) it is committed recklessly; or (b) a
homicide that would otherwise be murder is committed under the
influence of extreme mental or emotional disturbance for
which there is reasonable explanation or excuse. The
resonableness determined from viewpoint of person in actor's
situation under the circumstances as he believes them to
be. (3) 2nd degree felony
Capital Murder
Death Penalty §210.6
(1) Death Sentence Excluded First degree felony if no
aggravating circumstances (§
210.6(3)) OR substantial
mitigating circumstances (§
210.6(4)) OR pled guilty for life
sentence OR under 18 at time
of crime OR mental/physical
condition calls for leniency OR
guilt beyond reasonable
doubt but not ALL doubt.
(2) Determination by Court or Court
& Jury - separate proceeding to
detrmine felony or sentence to
death
People v. Casassa
Mens Rea : Recklessly (but
not extreme which is
murder) OR under extreme
mental or emotional distres
Extreme Emotional Distress
Extreme mental or emotional distress = Subjective
For which there is a reasonable explanation or excuse
= Objective
Person in Actor's situation, circumstances as they
believe them to be = Subjective
MPC does not divide it in
voluntary and involuntary
manslaughter
Downloaded by Isabella Henry (isabella.henry20@gmail.com)
CAPITAL MURDER (CONT.)
Furman v.
Georgia
Supreme Court set aside
death sentences where
juries had unfettered
discretion in determining who
would be executed
risk of arbitrary, capricous, or
discriminatory practice too
high
Caused a stay of death penalty
nation wide, and 35 states
rewrote their statute to include
directions for juries now
employing aggravating and
mitigating circ.
Gregg v.
Georgia
death penalty not a per
se violation of 8th amend.
must be an individualized
inquiry- birfurcated
proceeding
cannot be imposed for crimes
other than murder
Woodson v. NC
No jury discretion is just as
bad as too much discretion
McCleskey v. Kemp
statistics not enough,
must show personal
discrimination
NEGLIGENT HOMICIDE
§210.4 NEGLIGENT
HOMICIDE (1)
Criminal homicide
consitutes negligent
homicide when it is
commited negligently
(2) 3rd degree felony
Requires Gross
Negligence
Recklessly v. Negligently (§ 2.02
(2)(c-d))
recklessly is conscious disregard of
substantial and unjustifiable risk,
gross deviation from standard of
ocare
negligently is when actor should be
aware of the substantial and
unjustifiable risk and failure to
perceive the risk is a gross deviation
from the standard of care.
MURDER MAY BE REDUCED TO MANSLAUGHTER WHEN THERE IS NO
MALICE
CAN CHARGE THE LESSER INCLUDED OFFENSE INSTEAD OF THE
HIGHER OFFENSE THAT PROSECUTORS SOUGHT
lOMoARcPSD|12898255
COMMON LAW
Attempt §5.05 = crime is same grade as crime attempted
Courts defined this
overtime - punished as
a misdemeanor
ATTEMPT = specific
intent crime
REQUIRES DUAL
INTENT = (1) Specific
intent to commit the
attempt AND (2) Mens
rea required for
underlying offense
*could require a higher
intent for the attempt
than the target offense,
attempt is specific intent
even if underlying
offense is general intent
crime
People v. Gentry: you
cannot attempt the
unintended - (cannot
attempt murder if I did
not intend to kill)
Bruce v. State: not
possible to attempt
felony-murder- logical
fallacy. Cannot attempt
what is inherently
unintended
ACTUS REUS
D has done all that was within his power to do but
was prevented by an outside force
Once D took a substantial step, he could not legally
abandon the attempt. BUT attempt had to be the
beginning of perpretration not mere
preparation.
DISTINGUISHING MERE PREPERATION FROM
ATTEMPT
1. Physical Proximity Doctrine: overt act required
for an attempt must be proximate to the completed
crime, trending toward the completion of the crime,
or must acount to start of commission of the crime
2. Dangerous Proximity Test: greater the gravity
and probability of the offense, and the nearer the
act to the crim, stronger case for calling the act an
attempt (People v. Rizzo: the opportunity never
arose, so no attempt)
3. Indispensable Element Test: absence of an
indispensable element needed to complete the
crime indicates it was not an attempt
4. Probable Desistence Test: The conduct
constiutes an attempt if, in the ordinary and natural
course of events, without interruption from an
outside source, it will result in the intended crime
5. Unequivocality Test (Res Ipsa Loquitur): an
attempt is committed when the actor's conduct
manifests an intent to commit a crime (People v.
Miller)
MPC Article 5: Inchoate Crimes
p. 1034
General Concepts
INCOMPLETE ATTEMPT: Actor took some steps in the commission of the crime
but stopped along the way by external factor.
COMPLETE ATTEMPT: Actor took all the steps necessary for the commission of
acime, but failed to achieve the desired harm.
*merges with the crime if completed, cannot be charged with offense and
attempt both
*Felony-Murder Cannot be attempted. But if homicide occurs during
attempted felony = then it is Felony-Murder still
§5.01: Criminal Attempt
(1) A person is guilty of attempt to commit a crime if, acting with the kind
of culpability otherwise required for the commission of the crime,
(a) purposely engages in conduct that would constiute the crime if the
attendant circumstances were as he believes them to be. [complete
attempt; conduct crime]
(b) when causing a particular result is an element of the crime, does or
omits to do anything with the purpose of cuasing or with the belief
that it will cause such a result without further conduct on his part.
[complete attempt; result crime]
(c) purposely does or omits to do anything that which, under the
circumstances as he believes them to be, is an act or omission
constitution a substantial step in a coure of conduct planned to
culminate in the commission of the crime. [incomplete attempt]
People v. Reeves: acts of preparation can be substantial step if
strongly corroborative
(2) conduct will be a substantial step (1)(c) only if it is strongly
corroborative of the actor's criminal purpose. List on P. 1034
(3) person who engages in conduct designed to aid another to commit
a crime that would make them comlicit under 2.06 if the crime were
committed, is guilty of an attempt to commit the crime even if the
person does not attempt or commit it.
Dual Intent
1. intend to do conduct constituting attempt
2. act is committed with intent of producing the outcome of offense
* D need only be as culpable as the required for the target offense regarding the
attendant circumstances
Solicitation §5.05
SOLICITATION: Actus Reus: inviting,
requesting, commanding, hiring,
encouraging or otherwise inducing
another person to commit a particular
offense
Mens Rea: DUAL INTENT (1) intent to
perform the act constituing the solicitaion
AND (2) Intent that the offense be
committed
SOLICITATION MUST BE
ACTUALLY COMMUNICATED TO
INTENDED PARTY: State v. Cotton
DOUBLE INCHOATE CRIME:
solicitation is an attempted
conspiracy
If A solicits B to commit a
crime, & B commits the
crime... A and B are BOTH
guilty of the crime
B = Principal
A = Accomplice
If B does not commit the
crime... A is guilty of
solicitation
MERGER DOCTRINE APPLIES:
solicitation merges with the substantive
crime if the crime is committed
§5.02: Criminal
Solilcitation
(1) A person is guilty of
solicitation to commit a
crime if with the
purpose of promoting
or facilitating its
commission he
commands,
encourages, or
requests another
person to engage in
specific conduct that
would consitute such
crime or an attempt
to commit such crime
or which would
establish complicity in
its commission or
attempted commission
(2) It is immaterial that
the actor fails to
communicate with the
person he solicits to
commit a crime if his
conduct was designed
to effect such
communication
Consipracy §5.05 = crime is same grade as crime attempted
CONSPIRACY is a partnership for criminal purposes
Mens Rea= Specific intent of conspiracy (1) intent to combine with others (2) intent to accomplish illegal objective.
Sometimes purpose can be inferred from knowing.
ACTUS REUS: Agreement of the parties. NO OVERT ACT REQUIRED; complete as soon as agreed upon
MUST BE BILATERAL CONSPIRACY
One person cannot be convicted if co-conspirators acquited
WHARTON'S RULE:
If the crime naturally requires a certain # for commission - CANNOT be a CONSPIRACY
adultery takes 2 to tango.
THIRD-PARTY EXCEPTION: if there is +1 more than needed for crime, you CAN CHARGE
CONSPIRACY
Iannelli v. United States: 3rd Party Exception and Legislative intent meant that the
gambling ring WAS a conspiracy
People v. Foster
Courts decided Illinois meant bilateral
conspiracy b/c it was ambiguous and the
lenity doctrine applied.
NO MERGER
DOCTRINE:
CONSPIRACY
SEPARATELY
CHARGED
PINKERTON LIABILITY:
People v. Pinkerton
Each member of a conspiracy is liable for every offense committed in
furtherance of that conspiracy; Do not need to know or agree to crime;
crime must be reasonably foreseeable in scope of conspiracy
CONSPIRACY can be express or implied.
DUAL INTENT: (1) intent to enter into the agreement (2) specific intent that the offense be committed
D's can be guilty of consipiracy even if goal not established
DIFFERENT FORMULATIONS OF A CONSPIRACY: (1) Wheel: one controlling hub with different
spokes who have their own actions and success is INDEPENDENT of one another. Participants may not
know about other spokes. (2) Chain: each link knows or must have known about the other links in the
chain; have a "community of interests"; success is interconnected (3) Literally infinite different
formations
Bilateral Consipiracy requires 2+ people entering the conspiracy (do not need to charge both) v.
Unilateral Conspiracy requires only 1, can be in conspiracy with law enforcement.
Statute of Limitations starts at the last overt act, and charges may include for the full duration (but not
for the substantive crimes)
Can be charged anywhere an act in furtherance of the conspiracy occurred
Co-Conspirator Comments = Evidence; so long as they were said while furthering the conspiracy, and
it is people who were in the conspiracy with you (wheel v. chain problem, Kilgore v. State was a wheel, so
other spoke precluded)
MULTIPLE OFFENSES -ONE CONSPIRACY: One agreement to commit multiple offenses is still only
one conspiracy. if multiple agreements, then multiple conspiracies (Braverman v. United States)
§5.03: Criminal Conspiracy
(1) A person is guilty of conspiracy eith another person (UNILATERAL) or persons to commit a crime if with the
purpose of promiting or facilitating:
(a) agrees with such other person(s) that they or one or more of them will engage in conduct that constitutes
such crime or an attempt or solicitation to commis such a crime; or
(b) agrees to aid such other person(s) in the planning or commission of such a crime or of an attempt or
solicitation to commit such a crime.
(2) If a person guilty of conspiracy, knows that a person with whom he conspires to commit a crime has conspired
with another person(s) to commit the same crime, he is guilty of conspiring with such person(s) , whether or
not he knows their identiy, to commit such a crime. (NO PINKERTON LIABILITY- also MPC §5.03(7))
(3) If a person conspires to commit a number of crimes, he is guilty of only one conspiracy so long as such multiple
crimes are the object of the same agreement or continuous conspiratorial relationship
(4) Joinder and Venue in Conspiracy Prosecutions = outside scope of class
(5) No person may be convicted of conspiracy to commit a crime other than a felony in first or second degree,
unless an overt act in pursuance of such conspiracy alleged and proved to have been done by him or by other
person with whom he conspired [OVERT ACT REQUIRED IF CRIME IS NOT 1ST OR 2ND DEGREE]
(6) Statute of Limitations & the Duration of Conspiracy - read p. 1037, see Defenses
CONSPIRACY
MERGES WITH THE
SUBSTANTIVE
CRIME
Downloaded by Isabella Henry (isabella.henry20@gmail.com)
YOU CANNOT
CONSPIRE TO
COMMIT SOMETHING
UNPLANNED
(SIMILAR TO GENTRY
RULE- PEOPLE V.
SWAIN
FACTORS TO PROVE CONSPIRACY:
1. Assoc. with alleged conspirators
2. Knowledge of crime
3. Presence at scene of crime
4. Participation in object of conspiracy
lOMoARcPSD|12898255
Accomplice Liability
guilty of the substantive offense committed by the perpetrator; must act in some way, liability primarily derived from responsible act of
perpetrator
No Accomplice
Liability under
CL
No Accomplice
Liability Under
MPC
NO
YES
Did the
Accomplice
Attempt to help?
NO
NO
YES
YES
NO
GUILTY OF THE
SUBSTANTIVE
CRIME UNDER
ACCOMPLICE
LIABILITY/
DERIVATIVE
LIABILITY (CL)
DID THE ACTOR INTEND TO ENGAGE
IN THE ACT OF ASSISTANCE? &
DID THE ACTOR HAVE LEVEL OF
CULPABILITY SUFFICIENT FOR THE CRIME?
MPC §2.06(4)- Only requires same level of
mens rea for results based crimes,
otherwise just Q 1 (Riley v. State)
Party could only be an accomplice if state
could prove he intended the prohibited
results: Echols v. State
YES
NO
Is the crime the
" natural and
probable"
consequence of
the primary
crime?
YES
GUILTY OF THE
SECONDARY
RESULTING
CRIME
WAS THERE A
SECONDARY
CRIME? (RESULT
CRIME)
YES
State v. Linscott
" Natural and Probable" Test
1. Did the principal commit the
target offense?
2. Was the secondary an
accomplice to the target offense?
3. Did the principal commit an
offense beyond the target
offense?
4. Were the latter crimes
" reasonably foreseeable
consequences" of the target
crime?
Did the Actor intend to promote the
primary crime? Was the
Secondary Crime Foreseeable?
YES
YES
No Accomplice
Liability for MPC
& CL
YES
Principal/Perpetrator
has Excuse for
Crime
Did the Accomplice
intentionally assist the
other person?
Must assist in fact- even
if only trivial (State v.
Helmenstein)
Does not need to be the
but for cause MPC &
CL
§2.06(3)(a)(ii)
No Accomplice
Liability for MPC
& CL
CRIME OCCURRED
(if no crime was committed, no
accomplice liability = People v.
Genoa
Mere presence is not enough
- State v. Hoselton
in most cases, knowledge is not
enough either, but some
jurisdiction issues here
Principal/Perpetrator
has Justification
NO
Did the
Accomplice
withdraw/terminate
before the
commission of
the crime?
YES
NO
NO
NO
DID THE ACCOMPLICE HAVE
THE APPROPRIATE MENS
REA FOR THE CRIME?
(Mens Rea can be equal to or
higher than Principal Actor,
just cannot be less than )
NO
YES
§2.06(6)(C)
GUILTY OF THE
SUBSTANTIVE
CRIME UNDER
ACCOMPLICE
LIABILITY (MPC)
No Accomplice
Liability Under
MPC
YES
DID THAT
WHOLLY
DEPRIVE IT
OF ITS
EFFECTIVENESS
?
If principal found not
guilty because of
necessity defense,
accomplice must be
found not guilty too
(because itis a
justification)- People
v. Lopez
YES
Common Law Distinction:
Principal in 1st degree: Actually committed the crime; tried where
crime occurs
Principal in 2nd degree: aided, counseled, commanded, or
encouraged the commission of the crime; tried where crime occurred;
may be tried before principal; may be convicted even if principal is
not; may be convicted of a higher offense
Accessory Before-the-Fact: encourage, not present at moment of
offense; tried where assistance occurred; may not be tried with
principals; convicted only if principals convicted; cannot be convicted
of higher offense than principals
Accessory After-the-Fact: helped D after crime, knowing of their guilt;
Same as other accessory, mostly tried for other crimes (MPC
242.3: Hindering Apprehension or Prosecution)
DID
ACCOMPLICE
GIVE TIMELY
WARNING TO
POLICE/
MAKE
PROPER
EFFORT TO
STOP THE
CRIME?
GUILTY OF THE SECONDARY
RESULTING CRIME
(Note: Accomplice can be
charged with a higher crime if
they have a higher mens rea;
Principal may not have
intended to kill someone in the
course, and accomplice have
intended to do so- charge will
depend on culpable state of
mind- typically only relevant to
secondary crimes)
People v. McCoy
An Accomplice being able to be
liable for a higher charge is also
in CL
§2.06: Liability for Conduct of Another; Complicity
(1) A person is guilty of an offense if it is committed by his
own conduct or by the conduct of another person for which
he is legally accountable, or both
(2) A person is legally accountable
(a) acting with the kind of culpability that is sufficient for
the commission of the offense, he causes an innocent or
irresponsible person to engage in such conduct
[INNOCENT AGENT DOCTRINE= theory of direct liability
ot derivative liability Bailey
(b) he is made accountbale for such other person by the
Code or by the law defining the offense; or
(c) a person is an accomplice of another person in the
commission of an offense.
(3) Person is accomplice if
(a) with the purpose of promoting or facilitating the
commission of the offense,
(i) solicits such other person to commit it; or
(ii) aids or agrees or attempts to aid such other
person in planning or committing it; or
(iii) having a legal duty to prevent the commission of the
offense, fails to make proper effort to do so; or
(b) his conduct expressly declared by law to establish
complicity
(4) When causing a particular Result is an element of the
offense, an accomplice in the conduct causing such result
is an accomplice in the commision of that offense, if he
acts with the kind of culpability, if any with respect to
that result that is sufficient for the commission of the
offense.
(5) A person who is legally incapable of committing a
particular offense may be guilty if it is committed by the
conduct of another perfon for which he is legally
accountable, unless inconsition with provision limiting
capactiy
(6) Unless otherwise provided by the ocde or by law defining
offense, a person is not an accomplice in an offense if
(a) he is a victim of that offense (legislative exemption rule)
(b) the offense is so defined that his conduct is inevitably
incident to its commision; or
(c) he terminates his complicity prior to the commission
of the offense and
(i) wholly deprives it of its effectiveness in the
commission of the offense; or
(ii) gives timely warning to law enforcement auth. or
otherwsie makes proper effort to prevent the
commission of the offense
(abandonment/withdrawal/renunciation- just leaving the
scene after giving encouragement is not enought -State
v. Formella
(7) Exact wording p. 1012, Accomplice can be held liable
even if person who committed the offense is not charged or
prosecuted
Note on Merger
In CL : Solicitation & Attempt merge with highest substantive crime (they are lesser-included offenses) ;
solicitation merges with conspiracy (lesser-included) BUT ! conspiracy does not merge with substantive
crime b/c conspiracy is separate
In MPC: Everything Merges
*Accomplice is derivative liability- same rules apply for whatever crime committed by principal.
Downloaded by Isabella Henry (isabella.henry20@gmail.com)
lOMoARcPSD|12898255
DEFENSES: Failure of Proof is always available; requires no evidence on part of D.
ATTEMPT
CONSPIRACY
IMPOSSIBILITY
LEGAL IMPOSSIBILITY: D thought the conduct was illegal, but it is not.
No Crime = No Charge for Attempt; It would violate the Legality
Principle. [valid defense CL & MPC]
FACTUAL IMPOSSIBILITY: D intends to commit a crime, but fails
because attendant circumstances are not as he believes and are
outside his control; most sting operations are using factual
impossibility. [culpable mental state for an actual crime so not a
valid defense in MPC, maybe CL?]
HYBRID IMPOSSIBILITY: mix of both legal and factual, but not in favor
because lines are hard to draw
ABANDONMENT/RENUNCIATION
MPC §5.01(4) RENUNCIATION OF CRIMINAL PURPOSE: When
actor's conduct would otherwise be an attempt, it is an affirmative
defense that he abandoned his effort to commit the crime or
otherwise prevented its commission, under cir. = complete and
voluntary renunciation of his criminal purpose. Defense does not
affect liability of an accomplice who does not join in the
abandonment/renunciation. It is not voluntary if motivated by cir. not
present at inception of conduct that increase prob. of detection or
apprehension or make it more difficult to accomplish the goal.
Renunciation is not complete if motivated by a decision to
postpone or transfer effort to another.
Commonwealth v. McCloskey: voluntary abandonment before harm
was done is COMPLETE DEFENSE to a charge of attempt. (valid
affirmative/complete defense in CL and MPC)
DEFENSES RELATED TO CONSTITUTIONALITY:
guiding tenants
14th Amendment Violations
Proof Beyond a Reasonable Doubt:
In re Winship: due process clause of 14th requires
prosecution must prove each element of the
offense beyond a reasonable doubt, in every state
Owens v. State: circumstantial evidence alone is
not enough unless there is no reasonable chance
of innocence (upholding presumption of
innocence)
The Legality Principle:
Person may not be convictied and punsihed unless
their behavior is a crime by statute
Legality requires (a) previously defined conduct
(Commonwealth v. Mochan) (b) fair notice and (c)
nondiscriminatory enforcement
Lenity Doctrine- judicial interpretation of
ambiguous statutes in favor of accused (Keeler v.
Superior Court- implying legislative intent in
ambiguous statute is unlawful when that
constructin would favor victim rather than
petitioner; legislatures have freedom to revise)
(§1.02(3: try to interpret legislative intent, look
to purpose of statute)
Cruel & Unusual
Punishment: 8th
Amendment
Violation
- Sentence must
be proportional to
the crime
Coker v. Georgia:
Rape not
pubishable by
death penalty,
even with
aggravting
circumstnaces. It
is not
proportional
Gregg v. Georgia:
punishment must
not be grossly
disproportionate
to severity of
crime;
punishment must
not involve
unnecessary
infliction of pain
Solicitation
RENUNCIATION
RENUNCIATION
MPC §5.03(6) RENUNCIATION OF CRIMINAL PURPOSE: An affirmative defense MPC §5.02(3) RENUNCIATION OF
CRIMINAL PURPOSE: An
that the actor, after conspiring to commit a crime, thwarted the success of the
affirmative defense that the actor,
conspiracy, under circumstances manifesting a complete and voluntary
after soliciting another person to
renunciation of criminal purpose (calling police = sufficient) Valid
commit a crime, persuaded him
affirmative defense under MPC, not a defense under CL
not to do so or otherwise
WITHDRAWAL/ABANDONMENT/ END OF CONSPIRACY
prevented the commission of
MPC §5.03(7)(a) .... terminates when the crime is committed OR the agreement
the crime, under circumstances
that they be committed is abandoned by D and those with whom he conspired;
manifesting a complete and
and (b) such abandonment is presumed if neither the D nor anyone with whom
voluntary renunciation of
he conspired does any overt act in pursuance of the conspiracy during the
criminal purpose
applicable period of limitation. (c) If an individual abandons the agreement, the
Valid
affirmative defense under
conspiracy is terminated as to him only if and when he advises those with
MPC, not a defense under CL
whom he conspires of his abandonment OR he informs the auth. of the
MPC §5.04(2) it is a defense to the
existence & his participation therein. MPC only; CL Variation, Withdrawal must
crime of solicitation to commit a
occur before completion of crime, not a defense to conspiracy but avoids
crime that if the criminal object
further liability.
were achieved, the actor would not
MPC §5.04(2) it is a defense to the crime of conspiracy to commit a crime that if
be guilty of a crime under the law
the criminal object were achieved, the actor would not be guilty of a crime under
defining the offense or as an
the law defining the offense or as an accomplice. If you could not be charged
accomplice. If you could not be
with the crime, it is a defense to the charge of conspiracy. Valid defense
charged with the crime, it is a
under MPC, Not CL
defense to the charge of
WHARTON'S RULE: CL, not MPC
solicitation. Valid defense under
LEGISLATIVE EXEMPTION RULE: Victim cannot be charged with substantive
MPC, Not CL
crime or conspiracy & if victim is the only other party, D cannot be charged with
conspiracy in a bilateral jurisdiction. CL & partially MPC
Vagueness and Overbreadth
Due Process/Fair Notice
Violation
Clarity is necessary for fair
notice/due process
In re Banks: Definiteness
requirements remedy lack of
fiar notice and failure to define
reasonable standard of guilt.
Judgement of courts to vague
statute must be made in light
of prior interpretations.
Statutes that appear
overbroad can be sufficiently
narrowed by past decisions
Desertrain v. City of Los
Angeles: statute
unconstitutionally vague
because it did not clearly
describe behavior it
prohibited, promoted
arbitrary enforcement, and
potentially criminalized
innocent behavior
Failure of Proof
Defenses: aside
from claiming the
Pros. has not
proven all elements,
conditions that
form the basis of the
defense prevent all
the elements from
being proven
Mistake of Fact:
Strict Liability @ CL - No Defense
General Intent - defense if belief is reasonable by
objective standard & Specific Intent - defense if
belief is genuine, even though unreasonable
(mistake of fact that negates the mens rea- for
instance, stealing requires specific intent to steal, no
negligent larceny)
People v. Navarro: excuse if general intent, negates
offense if specific intent
Mistake of Law
Strict Liability &
General Intent - no
defense
Specific Intent, only if it
negates mens rea
when willfulness
repairs knowledge
that conduct is illegal
= failure of proof
MPC §2.04: Ignorance or Mistake
(1) ignorance or mistake as to a matter of fact or law is a defense if:
(a) it negatives the purpose, knowledge, belief, recklessness or negligence required to establish a
material element of the offense; OR
(b) the law provides that the state of mind established by such ignorance or mistake constitutes a defense
(2) defense is not availabe if D would be guilty of another offense had the situation been as he supposed (but
it will reduce the grade or degree of offense to that of what he had supposed)
(3) A belief that conduct does not legally constitute an offense is a defense to a prosecution fo rthat offense
based upon such conduct when
(a) statute defining offense is not known and has not been published or otherwise reasonably made available
prior to conduct allaged; OR
(b) he acts in reasonable reliance upon official statement of the law that was invalid (enumerated list p. 1010)
(4) must prove what is arising under (3) Preponderance of Evidence
Downloaded by Isabella Henry (isabella.henry20@gmail.com)
lOMoARcPSD|12898255
DEFENSES: Failure of Proof is always available; requires no evidence on part of D.
AFFIRMATIVE DEFENSES:
Available to D to negate criminal liability despite commission of a crime
D has both Burden of Production and Burden of Persuasion
JUSTIFICATION: Conduct is tolerated, even encouraged by society, even though technically unlawfu; focuses
on the act and the greater good achieved by it. 1. must be necessary to protect or further interest and stake; 2.
must only cause proportional or reasonable harm. Requires (1) necessity; (2) proportionality; (3) Reasonable
belief
SELF-DEFENSE
Common Law:
- Not permitted if actor is the
aggressor/provocateur (US v. Peterson)
- "Retreat to the Wall" must escape if you
can UNLESS "Castle Doctrine" it is your
own home
-Belief must be reasonable in light of the
surrounding circumstances (State v.
Wanrow)
-Threat must be imminent (State v.
Norman
- Proportional
For deadly force:
- must have been threat of deadly force
-threat must have been unlawful and
imminent
- the defender must have objectively
believed that he was in imminent peril of
death or serious bodily injury and
response necessary to save himself
* "Stand your Ground" opposite of "retreat to
the wall"
* "imperfect self-defense" = culpable of
lesser offense when belief was
unreasonable
*Defense of others permitted at same level
*Defense of Property must have
reasonable belief of imminent threat
unlawful trespass or carried away; must
respond proportionally; deadly force may
be used to protect right to inhabit own
home; or prevent one from entering if
actor believes intruder intends to commit
felony inside, can merge with self-defense
SELF-DEFENSE
MPC §3.04(1): Use of force is justifiable if the actor believes the
force is immediately necessary to protect himself - no
reasonableness standard
§3.04(2): (i) Not permitted for an arrest, even if unlawful; (ii) to
resist an occupier or possessor if you know they are doing it
because of a claim to the property (not a limitation if actor is (1)
public officer or (2) actor was unlawfully dispossesed and is
trying to make reentry, or (3) actor believes it is necessary to
protect against death or serious bodily injury
§3.04(2)(b): Deadly Force if actor believes force is necessary
to protect against death, serious bodily harm, kidnapping, or
forced sexually intercourse. Not justifiable if (i) actor provoked
the use of force, (ii) actor knows they can avoid the necessity
by retreating with the exception that (1) no duty to retreat from
own dwelling or work, unless initial agressor or assailed by
co-worker (2) public officer
§3.04(2)(c) - it is under the circ. as the actor believes them to be
§3.04(3) Confinement can be used, but must be terminated at
earliest possible opportunity
§3.05- Defense of others- if it would be okay for self, okay for
others
§3.06: Defense of Property
justified if actor believesthat proportional force is immediately
necessary and §3.06(3)(d): use of deadly force only justified if
actor believes victim trying to dispossess him of his dwelling or
is trying to commit enumerated felony on his home
§3.09 When it is not okay (like imperfect self-defense)
when actor's belief in unlawfulness of the force they are
protecting against is wrong AND error is due to ignorance or
mistake
when the actors belief is reckless or negligent and the culpability
of the offense is reckless or negligent - liable for conduct
NECESSITY
Common Law:
-typically only natural disasters, should be benefiting the
commong good
1 Act charged must have been done to commit a
significant and imminent even
2. Actor had no adequate alternative (reasonable belief)
3. Actor believed there was a causal link between their
act and evil to be avoided
4. Actor was blameless in creating the necessity
5. Harm done must not be disproportionate to harm
avoided (objectively)
Queen v. Dudley & Stephens: cannot kill someone to
save your own life
Nelson v. State: Your own property being stuck does not
mean you can steal gov. property.
not a defense for murder
choice of evils - you choose to prevent an imminent
harm and you had no legal way of avoiding it
NECESSITY
MPC §3.02(1): conduct that the actor believes
is necessary to avoid a harm or evil to himself
or another is justified if the harm to be
avoided is greater than the harm caused by
actor's conduct
- no imminence requirement
- the actor must actually believe that conduct
is necessary to avoid an evil
- the necessity must arise from an attempt
by the actor to avoid an evil or harm that is
greater than the evil or harm sought to be
avoided by the law defining the offense charged
- objective balancing of evils is for the jury
- choice of evils defense cannot succeed if
the issue of competing values has already been
foreclosed by the legislature
§3.02(2): If choice of evils results from actors
negligence or recklessness - no defense
EXCUSE: The actor is not morally blameworthy; not responsible for the act; focuses on the actor and their
circumstances
causation theory (caused by factor outside of actor's control) character theory (punishment proportional to
wrongdoer's moral desert, measured by charcter. normally good person in extreme circumstance can be
excused) free choice theory (only blameworthy if acting in free will, meaning he understood facts related to
conduct; appreciate that conduct violates society's wrongs; have ability to conform ocnduct to society)
DURESS
Common Law:
NEVER a defense to murder
1 Economic or reputational threat is not enough for
duress
Can succeed as a defense if:
(a) actor did not commit murder
(b) another person unlawfully threatened
immediately to kill or grievously injure the actor or
another person (actor felt reasonably
threatened)
(c) actor was not at fault for exposing self to threat
Must limit the free will of the actor (People v. Unger)
INTOXICATION
Common Law:
- can be used for specific
intent crimes if it negatives
the specific intent;
- Under common law,
voluntary intoxication was
never an excuse
DURESS
MPC §2.09
-actor engaged in conduct because coerced to do so by use of, or threat
to use, unlawful force against person or third person that a person of
reasonable firmness would have been unable to resist
- not available if actor recklessly placed themself in the situation where
they would probably be subjected to duress
- not available if actor was negligent in placing himself in such a situation,
whenever negligence suffices to establish culpability for the
offense charged.
- Not a defense that a woman acted on command of her husband, unless
she actued under such coercion as would establish defense under this
section (abolishes presumption that woman acting in presence of
her husband was coerced)
INTOXICATION - MPC §2.08
- only a defense if it negatives the an element of the offense
- when recklessness establishes an element of the offense , if actor due to voluntary
intoxication is unaware of a risk which he would have been aware of sober, the
unawareness is immaterial
- intoxication is not mental disease
- must lack substantial capacity to appreciate criminality or conform conduct to the law
INSANITY
COMMON LAW:
M'Naghten Rule: D must prove he did not know the nature and quality of the act he was doing, or if he did, he did not know it was wrong
Irresistable Influence Test: although aperson abstractly knows that given act is wrong, they are driven to commit it b/c of diseased mind.
Product Test: an accused is not criminally responsible if his unlawful act was product of mental disease or defect.
" Moral Wrong" : knows what he is doing is illegal, but believes if society understood they would condone the acts
" Legal Wrong" : society would morally condemn his actions but he believes that his conduct is legal.
" Deific Decree" : a mentally diordered person beleives that a deity has commanded him to act in an unlawful way (Yates v. State)
MPC §4.01: not responsible if at the time of the conduct, because of mental disease or defect, he lacks substantial capacity, either to
appreciate wrongfulness of his conduct or to confrom his conduct to requirements of the law.
State v. Wilson: what is wrongfulness? Per MPC it includes truly belieivng that society would approve if they understood the circs.
MPC uses cognitive volitional prong, focuses on D's actual appreciation of the wrongfulness of his conduct; and leaves it open to
legislatures to decide if moral issue could be introduced in test.
Diminished Capacity: lesser-included defense; some states use the manslaughter code for it; most states do not do this; essentially a way
of undermining intent
OFFENSE MODIFICATION:
D admits to committing the
crime, but did not actually
cause the harm prevented
by the statute
ENTRAPMENT BY ESTOPPEL/ REASONABLE RELIANCE:
getting from an official source that something is not illegal conduct - Mistake
of Law
ENTRAPMENT
a government agent "implants" in the midn of an innocent person the disposition
PUBLIC POLICY
to commit the alleged offense and induces its commission in order for the gov.
Statute of Limitation
to prosecute
Diplomatic
immunity
Downloaded by Isabella Henry (isabella.henry20@gmail.com)
lOMoARcPSD|12898255
Actus Reus: Guilty Act; prohibited act
COMMON LAW
Person is not
guilty of an offense
unless his liability is based on
voluntary action or omission
voluntary =
intentional
State v. Utter: D's
military
conditioned
response- Q if it
negated his
culpability for
stabbing his son
Mental element of
volition required to
establish actus
reus; if one is not
mentally
incapacitated,
their unforced act
was voluntary; An
act is a willed
movement or the
omission of a
required
performance
Not all
aspects of
conduct
need be
voluntary
Involuntary Actions:
Do not punish people
for involuntary acts.
No Actus Reus if
involuntary.
Martin v. State: person
is not guiilty of offense
performed that was
involuntary; D moved
to public highway by
police to be charged
with public intox = no
actus reus
MPC Article 210: Criminal Homicide p.1039
Conduct Crimes : law prohibits specific
behavior whether or not tangible harm
results (DUI)
Result Crimes : Law punishes the act
because of an unwanted result (homicide)
MPC §2.01: Req, of Voluntary Act;
Omissions/Possesions
(1) a person is not guilty of an of offense
unless his liability is based on conduct
which inlcudes voluntary acts or
omissions to perform an act of which he
is physically culpable.
(2) Following are Not Voluntary
(a) a reflex or convulsion;
(b) a bodily movement during
unconsciousness or sleep
(c) conduct during hypnosis/ from hypnotic
suggestion
(d) bodily movement otherwise not product
of effort/determination of the actor, either
conscious or habitual
(3) Liability for the commission of an offense
may not be based on omission
unaccompanied by action UNLESS:
(a) the omission is expressly made
sufficient by law defining the offense; OR
(b) a duty to perform the omitted act is
otherwise imposed by law
(4) about possession- refer p. 1006
ACT or Omission that is
voluntary
Mens Rea: Morally culpable state of mind; guilty
mind; mental state
Many types of Mens Rea at
Common Law:
Intentionally; Willfully;
Wickedly; Maliciously;
Corruptly; Unlawfully;
Wrongfully; Purposely ;
Knowingly:
Recklessly: Negligently
Transferred Intent: Actor
intends to cause harm to
one person, but ends up
harming another- still
liable because social
harm still occurred
General Intent : referring only to actus reus
that constitutes the offense
Specific Intent: specific mental element above
and beyond the mental state required to
perform the act. (like intent to commit a future
act, special motive or purpose, awareness of
attendant circumstance) Acting with specific
intent may bring enhanced penalities- impact
defenses because harder to prove specific
intent
If no culpability is prescribed by lawestablished if it is purposely, knowingly, or
recklessly MPC §2.02(3)
Whatever culpability is prescribed must apply
to all elements of the offense (if not
distinguished by statute MPC §2.02(4)
MPC §2.02: Gen. Culpability
(2) Kinds of Culpability
(a) purposely. A person acts purposely when: (i) if the
Causation: For crimes that require a particular result
Barb puts this under Actus Reus
Only a requirement for results crimes
But-For Causation: but-for conduct of D, result would not have occured; factual cause; threshold
question (velazquez v. state: no criminal liability if not the but-for cause)
Proximate Cause: Threshold met- consider whether there is also legal cause; was the conduct and
crime close enough to hold D liable? (State v. Rose: D cannot be liable, because deceased already
dead when she hit him)
To be held liable, D must be but-for + proximate cause; look at all the causal candidates- who should
be criminally charged? (People v. Rideout= might be but for but too remote to be the proximate
cause, so not liable)
Substantial Factor: applies only in rare cases where 2 acts could have caused the harm on their ownneither the but-for cause; being a substantial factor is enough to establish causation
Factors of Proximate Cause:
Responsive Intervening Cause: harm results from actions taken in response to aD's
conduct; normally law holds initial party still responsible
Coincidental Intervening Cause: D's conduct puts victim in the wrong place at the wrong
time; does not sufficiently establish proximate causation unless reasonably foreseeable.
De Minimus Contribution: the law will not treat a minor but-for cause of harm as legally
responsible when responsibility can be attached to more substantial cause
Intended-Consequence Doctrine: if intentional wrongdoer gets what he wanted in the
general manner he wanted, he should not escape liability, even with intervening events
Omissins Factor: omission does not supersede and cut off causation
Apparent-Safety Doctrine: a D's active force has come to rest in a position of apparent
safety and the victim's voluntary actions after this point are superseding.
Voluntary Human Intervention: victim's choice of action shifts burden from D
Contributory Negligence: not a defense, but a factor to weigh contributions of fault
MPC §2.03: Causal Relationship
(1) Conduct is the cause of the result when:
element involses the nature of his conduct or a result therof, it is
(a) it is an antecedent but for which the result in question would not have
his conscious object to engage in conduct of
occurred; and
that nature or to cause such a result; and (ii) if
(b) the relationship between the conduct and result satisfies any additional causal
the elment involves attendant circumstances, he is
requirements imposed by the code or by law defining offense
aware of the existence of such circumstances or he
(2) When purposely or knowingly causing a particular result is an element of the
believes or hopes they don't exist.
offense, element is not established if the actual result is not within the
(b) Knowingly. a person acts knowingly when: (I) if the
purpose or contemplation of actor, unless
element involves the nature of his conduct or the atendant
(a) the actual result differs from that designed or contemplated, only in respect that
circumstances, he is aware that his conduct is of
a different person or different property is injured or affected or that the injury or
that nature or that such circumstances exist;
harm designed/contemplated would have been more serious or more extensive
and (ii) If the element involves a result of his conduct, he is
than that caused; or
aware that it is practically certain that his
(b) the actual result involves the same kind of injury or harm as that designed or
conduct will cause such a result
contempated and is not too remote or accidental in its occurrence to have a just
(c) Recklessly. A person acts recklessy when he
bearing on the actor's liability or on the gravity of his offense
consciously disregards substantial and
(3) When recklessly or negligently causing a particular result is an element of an
unjustifiable risks that the material element exists or will
result from his conduct. The risk must be of such a nature/degree
offense, the element is not established if the actual result is not within the risk
that, considering the nature and purpose of the actor's conduct
of which the actor is aware or, in the case of negligence, of which he should be
and the circ. known to him, it's disregard involves a gross
aware unless:
deviation from the standard of conduct that a
(a)
the actual result differs from the probable result only in respect that a different
law-abiding person would observe.
person or different property is injured or affected or that the probable injury or
(d) Negligently. a person acts negligently when he
harm would have been more serious or more extensive than that caused; or
should be aware of a substantial and
(b) the actual result involves the same kind of injury or harm as the probable
unjustifiable risk. The risk must be of such a
result and is not too remote or accidental in its occurrence to have a just
nature/degree that the actor's failure to perceive i t,
bearing on the actor's liability or on the gravity of his offense
considering nature/purpose of his conduct and circ. known to him
involves a gross deviation from the standard of
(4) when causing a particular result is a material element of an offense for which
care a reasonable person would observe
absolute liability is imposed by law, the element is not established unless the
Downloaded by Isabella Henry (isabella.henry20@gmail.com)
actual result is a probable consequence of the actor's conduct.
OTHER
ELEMENT
THINGS
IDENTITY OF D
COULD BE AN
ELEMENT
ISSUE
ATTENDANT
CIRCUMSTANCES
JURISDICTION:
Must occur
within physical
boundaries;
congress may
legislate only
within
enumerated
powers
Concurrence of
Elements
State v. Rose: D
cannot be
liable, because
deceased may
have already
dead when she
hit him
Strict
Liability/No
Mens Rea
listed:
No mens rea
required for
strict liability
crimes; the act
of doing the
crime is enough
to give the actor
liability.
Generally social
taboos; small
public
welfare/safety
ordinances; CL
strongly
disfavored
strict liability.
Strict Liability
must be clearly
expressed , or
some mens rea
will be read in.
§2.05:
culpability
requirements
inapplicable
- SL in MPC
lOMoARcPSD|12898255
Where we
draw the line
depends on
whose
morality whe
choose,
whose life
experience
we value,
which
community
standards,
religion,
implicit
biases and
fears are in
control
Congress
may act only
within its
enumerated
powers
Legislatures
may not
enact laws
that violate
the
constitution
Law Draw Lines
Between
Competing
interests
public safety v,
liberty
society v.
individual
Clear Rules v.
Discretion
Quest for Truth (ends)
OR
Fair Play (means)
Vague statutes
violated 5th
amendment right
to due process
Constitutional
Limits
Utilitarian:
-protect public safety/
incapacitate offenders
-Deterrence/Promote
Respect for Law
(General/Specific)
Rehabilitation (GED,
Treatment, Job
Skills
Making Whole
Why do we have
Restitution (paying
criminal laws?
victims for loss)
to encourage/discourage
Expiation
(aying dues to
conduct
society
to
regain entry)
to give fair notice to rules
Restoration
(helping D's
vilations are against all of
understand
and
repair the
us
harm
they
caused
Violations result in moral
victim and society
condemnation
Criminal Law
Themes/Purposes
Disparities in the Law
Powers of prosecutors, judge, defense
Economic Disparities in Representation
Racial, Ethnic, and Gender Disparities
In re Winship: due
process clause of 5th
amendment requires that
prosecution must prove
every element of offense
beyond a reasonable
doubt
What is required for fair
notice?
If it is a statute or judicial
decision = fair notice
Vagueness is when law fails
to provide fair notice of the
conduct that is prohibited so
that the person can conform
Legality Principle: A
person may not be
convicted and punished
unless his conduct was
previously defined by
criminal statute
Due Process
Statute
Violations
restricing
(14th/5th)
speech or
association
may
violate 1st
amendment Sentence violates
8th amendment if
barbaric & excessive
8th Amendment
Proportionality Principle
Requires:
- sentence must be
No excessive bail;
proportional to the crime
no excessive
fines, and no
cruel and
unusual
punishment
Retributive
Reasons
punishment justified becuase
offenders deserve it
1. positive retributivism: moral desert is
both a necessary and sufficient condition
for punishment, even if punishment
serves no utilitarian good
2. Negative retributivism: person can be
punished only if (a) he commits a
crime; (b) the punishment is
proportional; (c) the punishment
produces a world with
less crime
What is at stake for D in
criminal law?
money, liberty and moral
condemnation from society
Why do we Punish?
Theories of
Punishment:
Utilitarian
Retributive
Making Whole
Stare Decisis - standing
by precedent
Can overturn just not a
whim or makeup of
court, but based on
considerations:
- Has it been unworkable
in practice?
- Is it inconsistent with
other decisions?
- Do we have a new
understanding of facts
or law?
-To what extent have
people relied on it?
be
l d ab l e
u
n
o
ed
s h r es o
af t t er s
r
s
c
at p l y
te to
e
at u b l e o n s l d b c y m o ap s
t
t
l S da rs
ou oli
si
Desuetude
i n a s t an g p e s s h t e p u r i es e b a f
e
m
i
j
a
r
e
n
Cr n d e b i d i at u t l eg an d ec t i v o n o o r t h
Common
Law
u
-a l St o d e es , u b j t at i f av
w
Doctrine
e
t
s
a
g d
la in ot
pr ould
n
j u d an
im
t er
When laws are
Cr o as l i c e, h o c : In s s h
e
e
s p o ad
unenforced
for a
t
in tu
t o an o c t r s t a
long
time,
they
may
on ty D ous
lapse
i gu
n
L e m b i ed
don't count on this
a cus
c
a
Downloaded by Isabella
Henry (isabella.henry20@gmail.com) defense
Prosecutorial Discretion
Substantial Factors of Interest
- Law enforcement priorities
(opioid abuse)
- Nature and Seriousness of
Crime
- Deterrent Effect of Prosecution
- Person's Culpability
- Person's History of Criminal
Activity
- Person's Willingness to
Cooperate with others
- Person's Personal
Circumstances
- Interests of victims
- Probable Sentence or
consequences
Prosecutorial Discretion
limited by Zero Tolerance
Policies & Statutes
Criminal Law = beyond
a reasonable doubt
(required for
conviction); probable
cause (required for
arrest)
Right to Jury Trial
(unless potential
sentence is less than
6 months)
EXAM
REMINDERS
DEFINE THE
CRIME
ACTUS
REUS
MENS REA
Lesser-Included
Offense: if there is
sufficient evidence, a
charge can be
convicted on a lesser
degree; for example 1st
degree murder = 2nd
degree, but only if there
is enough evidence to
convict of the lesser
crime
MPC §1.07(4-5):
conviction of a lesser
included offense
permitteed and
submission of included
offense to the jury
CAUSATION
ATTENDANT
CIRCUMSTANCES
DEFENSES
POLICY &
THEORY
OF
PUNISH.