CRIMINAL LAW – BARADARAN
WINTER 2012
1. INTRODUCTION TO CRIMINAL LAW
a. What is Crime?
i. Any social harm defined or made punishable by law
b. 3 sources of Criminal Law
i. Statutes- primary source. (MPC)
1. Today there are criminal codes.
2. Vast majority of crim. law is state law, not federal
ii. Cases – used if statute is ambiguous
1. Use cases to fill the gaps between the statutes w/ common law
iii. Constitutions – both federal and state
1. Due process clause of the 14th amendment
2. Have to be proved beyond a reasonable doubt
c. Criminal Process
i. Pretrial, trial, post-trial
ii. At every step of the criminal process, people are making decisions about whether
and how to proceed
1. Discretion is key
2. Pre-trial: legislature decides what is a crime, witness decides to report the
crime, police officer decides to investigate, prosecutor decides to press
charges, D has a choice to plea or go to trial
3. Trial: jury selection, motions, jury instructions, jury decisions, punishment
4. Post-trial: appeals
d. Classifying offenses
i. Felonies
1. Death or imprisonment for over a year
2. State prison
a. First degree
i. Min 1-10 yr
ii. Max 20 year or life
b. Second degree
i. Min 1-3 yr
ii. Max 10 yr
c. Third degree
i. Min 1-2 yr
ii. Max 5 yr
ii. Misdemeanors
1. Imprisonment for less than a year
2. Local prison; place other than penitentiary
iii. Petty misdemeanor
1. 30 days max
iv. Infractions
1
e.
f.
g.
h.
1. Fine
2. No jail time
Who punishes?
i. Jury decides if guilty
ii. Judge decides what sentence will be
Criminal Law v. Civil Law
i. Public Offense- gov. is always involved
ii. Imprisonment- can only be imprisoned for crim. case not civil.
1. Not always going to get jail time (ex: ticket)
iii. Condemnation by community - criminal law is about what society has deemed to be
immoral
Purposes of Criminal Justice System
i. Removing dangerous people from society
ii. Deterring potential criminals
iii. Rehabilitating law breakers
iv. Punitive, punishment for the sake of punishment
Presumption of Innocence
i. Due Process Clause
1. Proof “beyond a reasonable doubt”
2. Innocent until found guilty
ii. Places burden of proof on prosecution instead of D
iii. Policy reasons
1. Far worse to convict an innocent man than to let a guilty man go free
2. Reduces percentage of error
3. Makes conviction weightier b/c of high bar
iv. MPC 1.12
1. Each element of the crime must be proved beyond a reasonable doubt
v. Factual guilty v. legal guilty
1. Legal guilt: has admissible evidence that shows beyond a reasonable doubt
that the D is guilty
2. We aren’t necessarily trying to find the truth of what happened.
3. Because we don’t know what actually happened, we rely on legal guilt, not
factual guilt.
4. Standard of legal guilt is lower than factual guilty
5. We’d rather have a guilty man go free than innocent man charged
vi. Owens v. State- intoxicated driver found behind wheel of automobile parked on a
private driveway at night with lights on and motor running
1. Proof beyond a reasonable doubt requires mere certainness that they
committed the crime
2. Totality of circumstances are inconsistent with a reasonable hypothesis of
innocence – man was guilty
3. Could be argued both sides though
2. PUNISHMENT THEORIES
a. Utilitarianism (deterrence)
i. Looks forward to future, only want to punish if it is useful and deters crime
2
ii. Prevent and deter crime in the future, make people think before they act
iii. May allow punishment of innocent to prevent future crime
1. General deterrence
a. Knowledge that punishment will follow crime deters people from
committing crimes, thus reducing future violations of rights and
unhappiness they would cause.
b. We don’t want other people to commit same crimes, so punish one
person so society at large won’t commit that crime
2. Specific deterrence (aka Individual deterrence)
a. Focused on a particular individual or type of individual that
committed the crime and stopping them from committing the crime in
the future. (ex: how do we get child molesters to stop committing
these type of crimes in the future)
b. Penalty should be severe enough to outweigh in his mind the benefits
of the crime
c. More severe punishment of repeat offenders is warranted
b. Retributivism (deserved)
i. Looks backward at what has occurred
ii. People who commit crimes deserve punishment
iii. Trying to punish an individual if what they did is blameworthy
iv. Does the person deserve the punishment
v. Tied to the idea of democracy
c. Incapacitation
i. Dominant theory today in US
ii. Imprisonment temporarily puts convicted criminals out of general circulation
d. Rehabilitation/ reform
i. Past efforts to rehabilitate convicted offenders were mostly unsuccessful
ii. Used with some success today with drug crimes and some other crimes
3. RULES OF LEGALITY
a. Separation of powers
i. Legislatures have to make the law, not courts
ii. Courts can interpret
b. Vague
i. Statutes have to be clear
ii. Due process, you have to have a clear statute so that you know you’d be breaking
law
iii. Judges might not know who to prosecute
iv. Police could arrest anybody
v. People wouldn’t know what to do
c. Lenity
i. Tie goes to defendant
ii. If statute is unclear, you have to read the statute in defendant’s favor
4. ELEMENTS OF A CRIME
a. Actus Reus and Mens Rea must occur at the same time
3
i. Except strict liability crimes (no mens rea needed)
b. Actus Reus – physical act of doing something (conduct plus harm/result)
i. MPC- has to be a voluntary act (but doesn’t define voluntary)
1. Martin – drunk guy brought to highway by cops. No actus reus because it was
not voluntary
2. Voluntary is presumed, even if not in the statute
ii. You can still be liable when you are acting involuntarily if you made a previous
voluntary act
1. Man has seizure – voluntary act because he got in car knowing that he was
prone to seizures, so there’s actus reus
iii. Only need one voluntary act in the course of conduct to satisfy actus rea (from EE)
iv. Exceptions to Voluntary Acts (RSLHO)
1. Reflex or convulsion (war veteran stabs son, it was a reflex)
2. Sleep or unconsciousness
3. Learned reaction (post war syndrome)
4. Hypnosis
5. Otherwise is not the product of the effort or determination of the actor either
conscious or unconscious. (MPC 201.2)
a. Ex: Decina is not an exception because he knew he had seizures
v. Duty to Act
1. Omission/failure to act may constitute breach of legal duty
a. In general there is no legal duty to act on behalf of others
b. Exceptions (SSCAH)
i. Statute imposes a duty
ii. Status relationship
iii. Contractual duty
iv. Assumes the voluntary care of another and secludes others
from rescue (ex: Beardsley- hid woman in basement)
v. Harms another or creates a risk of harm to another.
2. Retributive- no duty to act because they didn’t do anything wrong. They
aren’t guilty for causing harm, they are just a bystander
3. Utilitarian- no duty to act, bystanders might cause more harm, might hurt
themselves
c. Mens Rea- guilty/evil thinking mind/ criminal intent
i. You can’t be punished for doing a bad act unless you had a bad thought while you
performed it.
ii. Common Law v. Modern Law
1. Common law- general evil mind
a. Intent
i. General v. specific intent
1. General
a. The same mens rea element applies to all of the
actus reus requirements
b. Ex: battery- intentional application of force on
another
2. Specific
4
a. Requires both the general element and the
specific intent element
b. Ex: common law larceny – general intent to take
someone’s property with the specific intent to
steal.
3. If it’s a general intent crime, then he only needs general
intent mens rea. If it’s a specific intent crime, then needs
to be proved that he had a specific intent for mens rea.
b. Malice
2. Modern law (MPC) – specific state of mind
a. Purposely- conscious goal
b. Knowingly- reasonably aware of certainty that something is going to
happen
i. Willful blindness (underage stripper) if you should have
known something, then it’s going to apply
c. Recklessly- aware of risk but you ignore it
d. Negligently- should be aware (RPP) but fail to perceive the risk
e. 2.02(3)- culpability required unless otherwise provided- if the law
is silent on mens rea, then mens rea requirement purposely,
knowingly, or recklessly
f. 2.02(4)- prescribed culpability requirement applies to all material
elements - if the statute only has one mens rea term, then that applies
to every element unless the statute clearly says that there’s another
element that applies.
g. 2.02(5)- substitutes for negligence, recklessness and knowledge –
Proof of a greater mens rea gives proof of a lesser mens rea (ex: if you
prove purposely, then you’ve proved the other three)
iii. How do you know what mental state is required?
1. It’s in the statute- what the D must intend, know, should have known
a. If left out of statute, court will imply mens rea to favor D.
iv. Best way to prove mens rea is through actions (motive, intent, etc)
1. Offender’s words
2. Weapon used
3. Force of blow
v. Intent
1. Transferred Intent – when a defendant intends to cause harm to one person
but accidentally causes it to another, courts typically assert transferred
intent
a. Conley- kid meant to hit kid with glass bottle, but hit another kid
instead.
b. You don’t have to intend the exact harm c. Have to have comparable harm.
d. Intent transfers between people but not property.
i. If you intend to hit a person, and you hit a building, then it
doesn’t court. If you intend to hit a person and you hit another
person, then it does count.
5
vi. Strict Liability – liability is imposed even when there’s no mens rea requirement.
1. State of mind doesn’t matter, always strictly liable
a. Garnett – handicap man has sex with young girl (statutory rape)
2. Factors to consider (LCNS)
a. Look to legislative intent- did they intend for this to be strict liability?
b. Common law – mens rea is the rule, not the exception
c. Nature of the crime/ conduct
i. It is appropriate to impose strict liability when we are
regulating harmful or injurious items
d. Severity of the punishment
i. If there’s small penalty, don’t need mens rea
ii. If there’s a big penalty, do need mens rea
1. Exception: statutory rape, big penalty, but don’t need
mens rea
3. Cordoba- everyone needs mens rea except for those who committed public
welfare offenses. These are minor violations of … liquor laws, traffic
regulations, sanitary etc..
5. MISTAKE
a. MISTAKE OF FACT
i. In some cases, mistake of fact can negate a mens rea element
ii. GENERAL RULE: awareness of mens rea elements and circumstances are usually
required, so ignorance of a fact is usually a failure of proof.
1. Mistake must be one made with good faith, but it doesn’t have to be a
reasonable mistake
iii. EXCEPTION #1: when the statute doesn’t require awareness of the fact (ex: strict
liability crime, Garrett)
iv. EXCEPTION #2: when defendant mistakenly thinks he is committing a less offense
(this is the MPC exception)
v. Common Law Approach:
vi. COMMON LAW
1. What type of crime? (strict liability, general intent or specific intent?)
2. About which element is defendant mistaken?
a. Is defendant’s mistake related to a Strict liability element?
i. If related- ignore mistake. There’s no mens rea requirement, so
mistake is irrelevant (ex: Garrett)
ii. If not related- move to general intent
b. Specific intent
i. If related- ask does it negate specific intent?
1. If does negate- then acquitted (scissorhand)
2. If it doesn’t negate, then mistake is ignored
ii. If not related – move to general
c. General Intent
i. If not related – ignore mistake, completely irrelevant
ii. If related- Ask is it reasonable?
1. If no- ignore mistake
6
2. If yes- Did D think she was committing a less serious
crime?
a. If no– acquitted
b. If yes- ignore mistake and D may be found liable
for the less serious crime
vii. MODEL PENAL CODE Section 2.04 (1) – Ignorance of Mistake
1. Mistake must be made in good faith, but doesn’t have to necessarily be
reasonable.
a. (1) Ignorance or mistake as to matter of fact or law is a defense if:
i. (a) the ignorance of mistake negates the purpose, knowledge,
belief, recklessness or negligence required to establish a
material element of the offense; or
ii. (b) the law provides that the state of mind established by such
ignorance or mistake constitutes a defense
iii. (Explanation: A Defendant is not guilty if his mistake negates the
mens rea required to establish that element)
b. (2) – Even if mistake would be a defense, it is not available if the
defendant would be guilty of another offense had the situation been as
he supposed.
i. In such case, however, the ignorance or mistake of the
defendant shall reduce the grade and degree of the offense of
which he may be convicted to those of the offense of which he
would be guilty had the situation been as he supposed.
ii. Ex. Edward Scissorhands: wouldn’t be guilty of burglary
because he did not have the intent to steal, but he would be
guilty of trespass
c. (Explanation: if a defendant mistakenly believes that he is committing a
less serious crime then he is committing, then he is only going to be
charged for that less serious crime)
viii. Major difference between MPC and Common Law
1. Common law: if D did believe they were committing lesser crime, then
mistake is ignored and they are guilty of whatever they committed
2. MPC: if you believe you committed lesser crime, then guilty for the lesser
crime.
b. MISTAKE OF LAW
i. Generally can’t negate the mens rea element.
ii. GENERAL RULE: ignorance of law is not an excuse
iii. EXCEPTION #1: if awareness of the law is a mens rea element (ex: cheek: airline
taxes)
1. MPC Statutes explicitly have a mens rea requirement about knowledge of the
law
iv. EXCEPTION #2: where there’s reliance on an official statement (ex: Marrero: prison
guard with weapon)
1. MPC requires reasonable reliance, Common law does not.
6. CAUSATION: voluntary act requirement (have to have both cause in fact and proximate cause)
7
a. Only really comes up with result crimes, where someone or something intervenes between
defendant’s acts and the eventual result
i. Result Crimes: the result itself is prohibited (ex. Murder, arson, assault)
ii. Conduct Crimes: the conduct itself is prohibited (ex. Reckless driving, possession of
drugs)
b. Causation is the final element required in every crime
c. Why do we have a causation requirement in criminal law?
i. Retributivist: people should be punished for things that they do – because they
deserve it, if you can’t prove they did it, you shouldn’t punish them
ii. Utilitarianism: deter future crimes – if arbitrarily punishing, it doesn’t deter future
crimes, and people won’t know what to do if anything can punish them (predictable
laws)
d. CAUSE IN FACT (actual cause) (BASC)
i. “But For” causation –“but for” the D’s act, result would not have occurred
1. Question is whether the D is “an” actual cause, not necessarily “the” actual
cause
2. If two people stab someone at the same time, even if both of the stabs would
not have killed the person alone, but together they caused the death, they
would both be the “but for” cause.
ii. Acceleration Doctrine – actual cause could be satisfied if their act accelerates the
death of victim if they would have already died because you make them die sooner.
1. Can be convicted for causing of hurrying the death of another
iii. Substantial Factor- person dies because of a combination of factors
1. One person’s act does not have to be the sole factor
2. Several people can be responsible for the result if each was a substantial
factor in bringing it about.
3. Both person’s actions don’t have to have caused the death on their own.
iv. Concurrent Causes Doctrine – where two causes occur at the same time and cause
death of another
1. First: where two causes occur at the same time each sufficient on their own
to bring about what occurs. (Ex: a and b both pour rat poison into a glass and
force c to drink it, both will be liable of the death if the amount that each of
them poured would have been sufficient to kill b by itself)
2. Neither cause is sufficient in itself to bring about the harm, but together both
acts are adequate in causing the harm. (Ex: neither people supplied enough
poison to kill V, but combined in the two amounts is enough that it’s lethal) –
similar to substantial factor
e. PROXIMATE CAUSE (legal cause) (limiting factors)
i. Have to show that reaction and cause of harm are closely related enough
ii. DE MINIMUS HARMS- if the intervening cause is exceptionally small when
compared to the other causes, then the person is not likely to be held the proximate
cause of the harm. Even if they are the “but for” cause of the harm, they still may not
be held liable.
iii. **INTENDED CONSEQUENCES - focus on the intentional wrongdoer. Even if there is
superseding harm, did it happen the way they wanted it to?
8
1. ex. Leaving poison out for a child, another person grabbing the poison and
gives it to the child to ingest – focus on the intentional wrongdoer
iv. OMMISSIONS- another person’s omission will rarely override an earlier person’s
wrongful act. (ex: drunk driver hits you and you didn’t have seat belt on. Your
omission to not wear a seat belt wouldn’t really matter in limiting the drunk driver’s
proximate cause.
v. **FORESEEABILTY- this is like probability. To determine if foreseeable, they will
ask if it’s in response of the defendant’s act (foreseeable) or just a coincidence
(unforeseeable). (medical malpractice is considered to be a reasonable risk.)
1. INDEPENDENT INTERVEING CAUSES- so unrelated to d’s causal actions
that d is not criminally responsible because they are not foreseeable. (A is
stabbed and rushed to hospital, but dies a week later of brain tumor in
hospital)
2. DEPENDENT INTERVENING CAUSES- Occur as a result of the first cause. If
the harm of victim was closely related to d’s conduct it is foreseeable. (ex: D
sets fire to old warehouse, kills homeless person in building, and a firefighter
responding.) Each person is the independent cause of his or her own death,
but court will find that each was a depending intervening cause that
happened as a result of D setting fire. So, they are depending intervening
causes.
vi. APPARENT SAFETY- once the person is safe from defendant, d is no longer
responsible for welfare
vii. INTERVENTION BY A “FREE DELIBERATE AND INFORMED” AGENT- if the
intervening cause is a person acting voluntarily, the D is not responsible for any
harm that this person causes (ex: man getting hit by drunk driver and then going
back into road to turn lights on in car)
viii. MPC 2.03(1-4)
1. Focuses on proximate cause in terms of mens rea
2. Nowhere in the section mentions proximate cause, it talks about what is
designed and contemplated and if it was remote or accidental
a. Looks like foreseeability and intended consequences
7. HOMICIDE- when a human being kills another human being
a. MURDER: killing of another with malice aforethought
i. MPC 210 – murder is
1. Purposefully/knowingly
2. Recklessly w/ extreme indifference for value of human life
3. Felony murder rule – If you kill someone during felony - which includes rape,
arson, etc – that’s a rebuttable presumption that you killed recklessly. It’s
pretty much a specified felony rule.
a. 1st degree felony/ possibility of the death penalty
ii. COMMON LAW - Killing w/ malice aforethought (don’t have degrees)
1. Four ways to establish a person’s malice. Use the following states of mind:
a. Intent to kill (express malice)
b. Intent to inflict grievous bodily harm (implied malice)
c. Depraved heart (same as reckless w/ extreme indifference for value of
human life) (implied malice)
9
d. Felony murder rule
iii. PENN MODEL – killing w/ malice aforethought- most jxns have this w/ different
degrees.
1. 1st degree (death penalty or 20+ years in jail)
a. Killing in a specified manner (whatever a statute actually says: ex.
Poison or lying in wait)
b. Felony murder (specified) – committing a murder while you are
committing a specified felony.
c. Willful, deliberate, premeditated (has to be all three)
i. willful is intentional
ii. deliberate is the quality of your thinking, the process that you
went though
iii. premeditated – quantity of your thinking. How long did you
think about this.
1. Hot/cold blood – did they act irrationally, or did they
take time to think before they acted?
a. Hot blood more like they were really excited,
mad
b. Cold blood is more towards willful, deliberate,
and premeditated
i. Was there time period adequate to show
that the actor was conscious in deciding
what they were doing. (depends on jxn) –
(ex: Guthrie – man stabs coworker)
ii. Morrin jury instruction - cold blood
situation time to think about it – (look at
quantify of time, quality of thought,
hot/cold mind?)
c. CONSIDERATIONS for hot/cold blood
i. Provocation by the deceased – did the
victim do anything to provoke their
actions
ii. Ill will or previous difficulty between the
parties
iii. Statements – any statements made by the
person who committed the crime, the
victim or other people around.
iv. Threats and declarations – will overlap
with provocation.
v. Lethal blows after the deceased was
helpless –shows a depraved heart or
maybe a cold heart. (four shots at father
in hospital bed)
vi. Brutal manner – how did they kill them. 1
shot, brutal strangle.
vii. Nature and number of wounds.
10
d. Retributivist/utilitarian- may believe that we
should punish people who commit crimes in hot
blood more. Because they are more worried
about the future of the people who commit
murder in hot blood. If they’re worried about
deterring future murder, the hot-blooded guy is
less predictable.
i. They could also say that a cold-blooded
murderer who had thought about this for
a while is more likely to do this type of
killing again.
2. 2nd degree –
a. Unspecified felony
b. Intentional, but not premeditated
c. Intent to cause grievous bodily injury
d. Reckless w/ depraved heart
b. MANSLAUGHTER: killing of another w/out malice aforethought
i. MPC 210.3 –
1. Committed Recklessly
2. EED/RED- Extreme emotional disturbance/ or reasonable emotional
disturbance for which there is a reasonable excuse
a. Words can be enough under MPC for provocation
b. Test:
i. Is the D under the influence of EED/RED? (subjective)
ii. Was there a reasonable explanation? (objective)
1. Reasonableness of that excuse is taking the persons’
actual circumstances and what they were actually
thinking, but behavior has to be objectively reasonable
a. Ex. Girlfriend breaking up with you is not
reasonable excuse to kill her
i. COMMON LAW – killing of another w/out malice aforethought (punished by jail
time)
1. Voluntary- intentional killing committed in the heat of passion
2. Involuntary- unintentional/ negligently - murder like a negligent homicide
3. Misdemeanor- committing a misdemeanor and end up killing someone.
a. Equivalent to a felony murder for misdemeanor
b. Words aren’t enough under common law for provocation
iii. PENN MODEL
1. Voluntary
2. Involuntary
iv. Defenses: ***Provocation
1. applies to mpc, common law, and penn
3. Whether something is going to be brought down from 1st degree murder to
manslaughter.
4. Provocation is typically something likely to inflame the passion of a
reasonable person.
11
5. Subjective – nature of the provocation itself. Look at the person in their
certain circumstances. Get very fact specific. (ex: the reasonable drug addict)
6. ***Objective – objectively reasonable person. How the reasonable person
should have acted besides gender, age, or handicaps might have been
considered. (ex: the reasonable man)
a. Requirements: (from Girouard- man and wife in army, husband stabs
wife with pillow 19 times after she provokes him)
b. This is an AND test, must have all four elements.
i. Adequate provocation – something that’s calculated to inflame
the reasonable person and causes him to act with passion
instead of reason; AND
ii. Heat of passion; AND
iii. Sudden – no reasonable opportunity to cool off. (depends on
jxn on how long it takes to cool off); AND
iv. Causal link between the provocation, the passion, and the
homicide
c. 5 Adequate provocations (Common law examples)
i. Extreme assault or battery
ii. Mutual combat
iii. D’s Illegal arrest
iv. Injury of a close relative
v. Spouse’s adultery – observation of. You have to witness it
yourself
1. COMMON LAW- words are not enough to provoke
someone
2. MPC- words could be enough to provoke
a. Has no defined categories for adequate
provocations.
b. Also no suddenness requirement
c. The explanation will be determined from the
viewpoint of the actor’s situation and the
circumstances that she understands it to be.
b. UNINTENTIONAL HOMICIDE
i. Reckless Murder – taking substantial risk of killing somebody else
1. Requires murder w/ extreme indifference to human life
2. Under common law, it’s known as depraved heart murder
3. Also considered a depraved heart w/ callousness (knoller- fighting dogs that
kill someone- charged w/ 2nd degree murder)
4. DEPRAVED HEART
a. Thomas Test
i. Wanton disregard
ii. High probability that death will occur
b. Phillips Test
i. Endangers life
ii. Conscious disregard for that endangerment
c. California Penal Code
12
i. Abandoned and malignant heart
5. Examples: drag racing and Russian Roulette
ii. Criminal Negligence- accidentally taking a substantial risk
1. MPC 210.4
2. Gross negligence (as opposed to consciously taking the risk)
3. Ex: Hernandez- guy with bumper stickers got voluntary manslaughter because
he accidentally took a substantial risk by driving drunk
iii. Civil Negligence- taking a lower risk (basically tort negligence)
1. Accidentally taking an unjustifiable risk
2. Williams case – illiterate parents give baby aspirin for toothache instead of
taking to dr. and the baby dies.
c. FELONY-MURDER RULE
i. Deterrence- they want to deter killings during felonies not felonies themselves
ii. Purpose: make sure felons act carefully while they are committing felonies. We don’t
want them to cause accidental deaths.
iii. Courts don’t like the felony murder rule usually, so they try to justify the rule.
1. For example: in California, the statute specifically identifies what are the 1st
degree felony murders but leave all other kinds of murder of the second
degree. This allows for judges to ultimately make the rule for 2nd degree
murder. It’s court made law.
iv. COMMON LAW- if you cause a death while you are committing a felony or even
attempting to commit a felony, then guilty of murder. (Harshest)
v. PENN MODEL- most states today follow this
1. Specific felony murder is 1st degree (ex: burglary, arson, etc)
2. Unspecified felony murder is 2nd degree (ex: drug distribution etc)
a. The mens rea as to the death is irrelevant, however, the mens rea to
the felony is relevant
vi. MPC- 210.2(1)(b)- if a death occurs during a specified felony such as rape, deviate
sexual conduct, arson, burglary, felonious escape- then it creates a rebuttable
presumption that the person committing the felony acted recklessly which is
enough to bring it up to murder.
vii. Two questions:
1. Did a killing occur during a felony? If yes, then …
2. What LIMITATIONS?
a. Inherently dangerous
i. In the abstract OR
1. Justice Kennard (from Howard – man gets pulled over
and turns into high speed chase until he kills woman)- the
felony is not inherently dangerous if there’s any way it
can be committed w/out creating a substantial risk to
human life.
ii. Facts of the case
b. Specified v. unspecified
i. Unspecified: recklessness and indifference don’t have to be
present
13
ii. Specified: recklessness and indifference have to be present
1. Traditional: arson, robber, burglary, rape
2. Modern: aircraft piracy, terrorism, aggravated child
abuse
c. Independent felonious purpose/ merger doctrine
i. felony murder only applies if the felony was independent of the
homicide
ii. Must determine if the homicide resulted from conduct for an
independent felonious purpose as opposed to a single course of
conduct with a single purpose.
iii. Independent felonies do not merge, so they are still liable of
felony murder: crimes such as robbery, rape, kidnapping
iv. Non-independent felonies merge, so no felony murder: assault
based crimes like felony assault, aggravated assault, felony
battery, aggravated battery
v. Ask the question: is this an assault-based crime, or is it a nonassault based crime?
1. Assault w/ a deadly weapon that leads to a murder, is
not independent of the felony, so it merges and there is
no felony murder.
2. But, armed robbery is not an assault-based crime. There
is an independent felonious purpose, to acquire money
or property belonging to another, so there is no merge
and can still be liable for felony murder
vi. Purpose: we don’t want every assault-based crime becoming
felony murder.
d. Proximate cause
i. Agency approach (majority)- the felon or his co-felons have to
have committed the murder even it if it was accidental. It can’t
be a non-felon (police officer or bystander to the crime.)
ii. Proximate causation approach (minority)-felon may be held
liable for felony if the felon or co-felon set in motion the acts,
which resulted in the victim’s death. Even if they didn’t kill the
victim, if you can prove proximate causation … foreseeable,
intervening causes etc…
8. MISDEMEANOR MANSLAUGHTER (aka Unlawful Act Manslaughter)
a. If you are committing a misdemeanor and a death occurs.
b. Sometimes it can apply to any non-felony like an infraction of the law
i. Ex: homicide that occurs after a traffic violation such as speeding
c. Limitations:
i. Inherently dangerous- can be analyzed in the abstract on in the facts of the case
1. Ex:
ii. Inherently wrong- only applied to misdemeanors who are evil or inherently wrong
rather than misdemeanors that are just against the law.
14
1. Ex: assault is inherently wrong b/c it’s bad to hit people, parking ticket is not
inherently wrong
d. Many modern jxns including the MPC reject this rule completely. They believe it’s too much
liability that could occur as a misdemeanor
9. RAPE
i. COMMON LAW: carnal knowledge of a woman forcibly and against her will
1. Elements
a. Sexual intercourse (vaginal penetration)
b. With a woman
c. By force or threat of force
i. Rusk v. state: woman and man meet at bar; jury trial. Force- force is an
essential element of the crime and to justify a conviction, the evidence
must warrant a conclusion either that the victim resisted and her
resistance was overcome by force or that she was prevented from
resisting by threats to her safety
ii. There was an unwritten rule of resistance: woman has to show that
she was harmed by resisting in such a way
d. Against her will and w/out consent
2. Exception: A man could not rape his wife
3. Sex with a child under the age of ten was always called rape
ii. REFORMED LAW:
1. Elements:
a. Sexual intercourse
i. Includes all penetration oral or anal
b. With another person
c. Without victim’s consent
i. Nowadays verbal “no” is enough
ii. Don’t require resistance
iii. Narrow or abolished marital immunity rule
iv. Unconscious, drugged or unaware is included in rape as non-consent
2. Today there is no force or threat of force/resistance requirement. Rusk v. State today
would definitely by rape.
3. Rape shield laws today prohibit info about victim that characterizes the woman.
Example in Rusk: she was bar hopping thus they tried to persuade the jury that she
was promiscuous and asking for it.
iii. TWO TYPES OF FRAUDULENT RAPE
1. Fraud in factum – victim doesn’t know they are having sexual intercourse at all. Ex:
dr. inserting penis instead of tool
2. Fraud in inducement – person is misled by misstatement or omission about
circumstances regarding the sex. They know they are having sex, but it’s under
fraud and they are confused with who they are having sex with. Ex: someone
impersonating their spouse, or the Burrough: case where woman thinks she must
have sex to save her life and be cured of life-threatening disease. This would be fraud in
inducement.
a. Under CA law, they only accept fraud in factum at this time. They changed the
law after this case to allow fraud in inducement.
15
10. ACCOMPLICE LIABILITY –
a. Overview/Definition: it takes multiple people sometimes to do a criminal act, and the point
of accomplice liability is to determine who was involved and how each is liable.
b. Common law had accomplices be less criminally liable, but in modern common law
accomplices are more treated the same as principles.
i. Reason is that the law wanted to protect accomplices from the death penalty under
the old law so that’s why they created the accomplice idea/ whereas today the
distinctions lead to the same amount of culpability.
c. DERIVATIVE LIABILITY
i. ACCOMPLICE LIABLITY: where an individual is derivatively liable for the acts of
someone else even if they weren’t there at the crime. . Look at whose involved and
the actions of those individuals
ii. OLD COMMON LAW for accomplice liability
PRINCIPAL
1ST Degree: commits the offense
physically or persuades someone into
the act
2nd degree: someone who assists the
principal in committing the crime,
actually there at the crime scene.
ACCOMPLICE/ ACCESSORY
Before the fact: aids, counsels, plans,
master minds; not there at the scene
After the fact: protector, somebody who
intentionally assists the criminal in
avoiding trial or punishment, or hides
stolen goods; not there at crime but help
after to get away with it.
iii. MODERN COMMON LAW for accomplice liability – most states use this now.
PRINCIPAL
1ST degree: same as above
2nd degree
ACCOMPLICE/ ACCESSORY LESS SERIOUS CRIME
(obstructer of justice)
nd
2 degree: same as above
After the fact
Before the fact
After the fact
iv. ACCOMPLICE: a person who intentionally assists (aids, encourages, advises etc.) a
principle in committing a crime – two requirements
1. ACTUS REUS
a. Requirements
i. By physical conduct – physically doing something to help (ex:
driving get away vehicle)
ii. Psychological influences- encouraging, easing mind of criminal,
inviting
16
iii. Omission/ failure to prevent- only applies if you have a legal
duty to prevent a crime and fail to do so. Ex: you’re a parent
who lets someone abuse their child.
b. Example: Godfather teaching to make spaghetti while he is planning to
kill someone. What counts as physically assisting?
c. Sometimes girlfriends and wives are charged as accomplices for
assisting the culprit in general by lending their car, taking care of
criminal.
i. Prosecutors use this as a tactic to get people close to the
principles and get information.
d. Rule 1: every person who directly commits an offense or encourages
or aids another person to do it will be criminally liable for that
conduct – mere presence is not enough to be culpable for a crime.
i. State v. V.T. – just being there when friends stole camcorder was
not enough to hold liable for accomplice – he had to do
something more than just be there to show that he was on board
with the crime; there had to be some act of encouragement.
ii. Wilcox v. Jeffrey – encouragement can constitute aiding in a
crime. Reporter went to saxophone concert by man who was
allowed to perform. Clapping and giving support was sufficient
actus reus.
2. MENS REA
a. Requirements
i. Intent to help or assist the individual in committing the crime.
Ex: Man in Columbine physically helped the boys get guns and
learn to shoot.
ii. Has the requisite intent/ mens rea to commit that crime. They
want that crime to occur. Ex: Columbine guy didn’t mean to
help them commit a school shooting
b. Example: A provides drawing of a security system for D for a highly
protected store who then disables the security system based on the
drawing and steals the diamond from the store. A is an accomplice
only if he had the mens rea to assist D and to commit larceny, the
crime in question (larceny=act in a way that permanently deprives the
store of its property)
i. two scenarios possible - that A provides the drawings under
the impression that D is a security expert working to fix
security problems; no mens rea here. Second scenario is that A
gave the drawings with the intent to receive a cut from the
proceeds of the theft, in which case A does have the mens rea
to assist D in accomplishing the crime and also has the intent to
permanently deprive the store-owners of the property/meets
the mens rea for the specific crime committed of larceny
c. Rule 2: Principle in second degree must associate himself with the
crime by participating and must have the shared criminal intent of the
criminal in the first degree
17
d.
e.
f.
g.
i. State v. Hoselton- boy in car as his friends robbed the barge. He
didn’t have the mens rea of committing the actual crime
although he did have mens rea to trespass. He needed to have
intent to steal so he wasn’t guilty
Rule 3: criminal is culpable of all of the natural and foreseeable
consequences of the crime they intended to commit.
i. In order to be liable for a secondary crime that occurs during
the commission of a primary crime through the doctrine of
accomplice liability, it has to be established that
1. FIRST, accomplice intended to promote the primary
crime/ had mens rea for the first crime AND
2. SECOND, that the commission of the secondary crime
was a foreseeable consequence of participating in the
primary crime/ natural and foreseeable consequence of
the primary act (based on an objective standard, also
it’s not clear whether the specific type of murder needs
to be foreseeable or if it only needs to be foreseeable if
someone might die in the commission of the primary
crime)
a. State v. Linson: went to go rob drug dealer. Friend
was just supposed to scare the dealer w/ gun but
shot and killed him. – yes accomplice liability bc
murder was foreseeable.
Accomplice liability is not a crime itself. The crime is the act that the
individuals together commit.
Rule 4: accomplice cannot be found guilty of accomplice if the
principle did not commit a crime (this was common law)
i. Lopez v. U.S. – man landed helicopter on prison to get gf out bc
she was being abused. Even though the principle (the gf) was
not convicted bc her actions were justified, she still had
committed the crime. Thus the accomplice was ok to be held
criminally culpable. The excuse of abuse was personal to the
actor, not to the accomplice.
ii. TODAY: the principal must simply be found to have committed
a criminal offense for the accomplice to be found guilty. The
principal doesn’t have to be convicted of a crime.
1. Ex: bank robbery. It’s clear that robbery occurred. The
principal ran off. Police finds the getaway driver. The
driver can be convicted even though they never found
the principle
Rule 5: an aider or abettor (accomplice) can be guilty of a greater
homicide-related offense than the principle actor.
i. People v. Mccoy – Mccoy and Lakey conducted a drive by
shooting. Mccoy actually shot the man, but he claimed that it
was in self-defense. Lakey can be guilty of greater homicide
than principle.
18
ii. Once it is proved that the principal has caused an actus reas,
the liability of each of the secondary parties should be assessed
according to his own mens rea. If the accomplice’s mens rea is
more culpable then mens rea of principle, then they may be
guiltier than accomplice
3. LIMITS ON ACCOMPLICE LIABILITY (DEFENSES)
a. If you are the victim whose meant to be protected by the criminal
penalties, you can’t be held partially responsible as an accomplice for
a crime against you.
i. In Re Megan – 14 year old girl is with older bf. They break into
home and have sex. Megan was prosecuted for burglary
(breaking and entering with the intent to commit a felonystatutory rape). Megan appealed. Rape could not be used as
the felony here.
b. Withdrawal- Defendant was not an accomplice if:
i. He terminated his complicity in the crime
ii. His termination occurred prior to the commission of the
offense AND
iii. He wholly deprived his complicity of effectiveness in the
commission of the offense.
1. State v. Formella- boy agreed to stand on watch as his
friends stole math tests. At the last second he decides to
leave, but he didn’t tell his friends or communicate his
disapproval to the principals. He had not wholly
deprived his complicity.
iv. Some jurisdictions require notification to law enforcement
c. Mere presence and influence of power is not enough (Warren Jeffs)
v. INCHOATE CRIMES
1. Three kinds:
a. Attempt- actor did not succeed yet in what they wanted to do, but
they did succeed in something.
b. Solicitation
c. Conspiracy
d. Assault
2. Different steps of the crime:
a. Conceives
b. Evaluates
c. Decides
d. Prepares – start punishing people that get to this level or below
e. Commences
f. Completes
vi. ATTEMPT
19
1. Complete attempt: actor performs all acts she sets out to do, but fails to
accomplish ultimate goal (ex: person is planning to shoot politician, and
takes all steps to carry it out except she missed.)
2. Incomplete attempt: actor preforms some acts to achieve goal, and either
quits or is stopped. (person planning to shoot politician, researches online,
gets a gun, studies politician but doesn’t kill them – gets caught by the secret
service)
3. Policy: We want to protect innocent conduct. Hard balance, because if police
intervene too early they can prevent crime, but they also may convict ppl
engaging in innocent conduct.
a. How much does a person have to do to show that they were about to
commit that crime
4. Attempt is a specific intent crime, in order to be convicted of attempted
murder, must have specific intent to kill that person.
5. Punishing Attempt:
a. COMMON LAW: Attempt was a misdemeanor. No matter the crime it
was misdemeanor.
b. TODAY under common approach in most jxns: Attempt is punished as
felony, but a lesser offense then the attempted crime, about half level
of punishment of substantive crime, but usually as a felony.
Punishment is a lot greater now then it was under old common law.
c. MPC 5.05(1): In general it punishes attempt the same as regular
crime, but in some ways it punishes for lower crime. Bit of a
compromise decision. Doesn’t punish attempt at the same level
always. Ex: Attempt to commit felony in the first degree is punished as
just felony in the 2nd degree.
6. HIV cases – punish or not to punish? – Criminalizing further stigmatizes.
7. Attempted felony murder is not a crime; bc felony murder does not have to
have a specific intent to kill. Attempt is a specific intent crime where you
have to prove intent.
8. To meet attempt you have to have two mens rea requirements
a. Intent to conduct the actus reus and (you intend to do those acts by
looking on internet for directions, buying a gun ... all the acts of
preparation.)
b. The intent to commit the crime itself (did you complete enough acts to
show whether or not you were going to commit that crime.)
9. Most jxns follow MPC and reject all impossibility defenses
10. Actus Reus
a. Last act – not guilty of attempt unless performs all acts that are
necessary to commit the crime. You’d have to have already pulled the
trigger. This is generally rejected in most jxns.
b. Physical proximity – actor’s conduct is proximate to the completed
crime. You are so close to committing the crime that it is almost
immediate
c. Dangerous proximity- a balance of the seriousness of the crime, the
likelihood of the crime, and the proximitism of the crime. The more
20
d.
e.
f.
g.
serious the crime, the more likely you are to commit that crime, and
the more closer you are to committing the crime those will all make
you closer to attempt
i. Rizzo: three men driving around and looking for man to rob.
When the victim is not there, you can’t be physically proximate
to the robbery of the victim.
Indispensable element - Is there any dispensable element of the
crime over which the actor doesn’t have control yet. Looks at what act
has not been done yet. What indispensible element still needs to be
completed (ex: if they don’t have gun yet or are waiting for their
accomplice to show up and they are necessary to perform the act)
i. The above focus on what the actor hasn’t done yet, and what the
actor still has to do
ii. Bottom two look at what actor’s actions she’s already done
Probable desistance – has actor reached a point that it is unlikely
that she would voluntarily stop? In this course of events, going as they
were, would the actor commit the crime?. This is very speculative.
Res ipsa loquiter/ equivocality test – would the regular person take
these steps if she wasn’t trying to commit a crime. Have the things the
person has done already speak for themselves. Basically you wouldn’t
have done these things if you weren’t committing a crime- speculative
i. Would they have done whatever they did if they didn’t have a
criminal purpose in mind?
Substantial Step - The actor possessing materials that are intended
to be used for the crime near the crime scene can constitute a
substantial step.
i. Reeves – little girls putting rat poison in teacher’s drink
vii. DEFENSES TO ATTEMPT:
viii. IMPOSSIBILITY
1. Where the act of defendant could never result in the commission of the
crime.
2. Factual Impossibility –Ex: attempting to pickpocket but the pocket was
empty. Under common law, the thief was always guilty of robbery. If
someone has a dummy in his or her bed and you shoot the dummy thinking
it’s a human. (In general it’s not a defense)
3. Legal Impossibility - there’s a mistake of fact that makes the actor unable to
accurately do crime. Ex: try to give bribe to juror, but he was really an
undercover cop. Another ex: If you try to kill someone but they are already
dead. You couldn’t be convicted of attempted murder in this case. (Usually a
defense under common law.)
a. Hybrid- Pretty much the same as factual impossibility. Ex. shooting a
corpse thinking it was alive. Shooting deer during non-hunting season
thinking it was real deer.
b. True/pure- where no crime has occurred. Ex: woman trying to
smuggle in illegal lace, but the lace was not illegal. Ex: McDonald’s
21
ketchup in Europe is not free. Romanian steals packets of ketchup in
U.S. but they are free – can’t be stealing it since it is free
4. Factual and Hybrid usually get mixed up. Need to know difference between
factual/hybrid and pure/true.
5. Many jxns have eliminated hybrid and factual impossibility as defenses to
attempt.
6. COMMON LAW: didn’t recognize abandonment as defense.
7. TODAY: abandonment defense in several jxns.
8. MINORITY: don’t have to prevent the commission, just give your best effort
9. MAJORITY: if you are working w/ accomplice and they go though with crime,
you will still be culpable even if you tried to stop crime.
10. POLICY: we want to encourage people to change their minds and not commit
crimes. Also, it negates the dangerousness of the actor.
ix. ABANDONMENT
1. Three main things that need to be established for an abandonment defense:
a. Voluntary – you aren’t abandoning where there are all of these
external factors that are keeping you from committing the crim. Ex:
policeman sitting outside of bank you wanted to rob.
b. Complete – can’t be that you are just stopping this time around and
maybe you’ll do the crime next week.
c. Defendant must prove commission of the crime – if you’re in a
group of ppl and you all want to rob a bank together. If you as one of
the accomplices say you don’t want to do it, but you guys go ahead
and finish out the crime anyway, then you can’t use abandonment as a
defense. You have to take further affirmative steps to stop crime or
make best efforts to stop the crime.
x. ASSAULT
1. Types of assault
a. Where you attempt to commit a battery. Defendant engages in
conduct designed to injure someone
b. Where you frighten someone. Intentionally cause the person to have
reasonable fear of bodily harm
c. Application of force on someone (called battery in torts) (only in few
jxns.)
xi. SOLICITATION – Asking someone else to commit a crime.
1. Almost every state today has a solicitation statute
2. Less than half of full amount of time in jail than if you committed the crime.
3. Actus Reas – communication that another commit a crime
4. Mens Rea –
a. 1) The accused has to have a specific intent to commit the crime AND
b. 2) Knowledge that the crime can be accomplished.
5. COMMON LAW: when it comes to intermediaries, the intended recipient has
to actually receive the message
22
6. MPC: don’t have to get the communication. If the actor fails to communicate,
it doesn’t matter
xii. CONSPIRACY – agreement to commit a crime.
1. Extremely controversial because it’s vague, just an agreement, very mental,
and often prosecuted.
2. COMMON LAW:
a. Actus Reus
i. Agreement
ii. Between 2 or more people (plurality doctrine)
iii. To commit an unlawful act/ or lawful act by unlawful means
(something corrupt or immoral ex: conspiracy to commit
adultery.)
b. Mens Rea
i. Intent to agree (specific intent)
ii. Intent that crime is committed
c. Under common law overt act didn’t need to be committed, but now
jxns require that there be an overt act.
i. But the overt act can be very small – driving the car
d. Conspiracy does not merge with the crime itself. Criminal can be
punished for both conspiracy to commit the crime as well as the
actual crime itself.
3. MPC 5.03(1):
a. Conspiracy merges (MPC 1.07) with the underlying crime. You can’t
be held responsible for both.
b. if the conspiracy is broader than just that one crime, then they may
not merge. You may be responsible for that one crime and also the
conspiracy for broad crime.
i. Ex: plan conspiracy to rob all banks in UT. You just get chance
to rob one. You could be charged with conspiracy to rob all,
and also the robbing that one bank.
c. Actus reus
i. Agreement
ii. Not necessarily between two parties. (plurality doctrine)
iii. To commit a crime; can’t just be an unlawful act
1. Under MPC, most jxns require that there be an overt act.
a. The overt act that you do to show that you agree
can be very small. Ex: Azim – when man just
drives and watches two men rob a man is enough
of an overt act to establish conspiracy.
d. Mens rea
i. Intent to agree
ii. Intent that crime is committed
4. POLICY:
a. People thought the common law attempt law was too narrow and
prevented police from being able to stop crimes.
23
b. Groups of criminals are way more dangerous than single individuals.
5. PINKERTON DOCTRINE- helps define what an overt act is.
a. Parties in conspiracy responsible for all acts that are:
i. In furtherance of agreement, OR
ii. In scope of agreement, OR
iii. Reasonably foreseeable consequence
6. Conspiracy is a specific intent crime.
7. Accomplice liability will often overlap w/ conspiracy. Usually a conspirator is
an accomplice bc they will likely have made an agreement.
a. Cook: you can be an accomplice w/out being a conspirator – they had
not talked about the rape beforehand
8. DIFFERENCE BETWEEN UNILATERAL AND BILATERAL CONSPIRACY
a. Unilateral- only one conspirator needs to actually agree
i. Policy. Utilitarian- person should still be punished
ii. These are very helpful for police officers during sting
operations, undercover where they pretend they are in
agreement w/ others and then use that to get person for
conspiracy.
b. Bilateral- requires actual agreement of at least two participants
i. Ex: Foster- man in bar agrees to robbery just so that he can go
tell the police, but it wasn’t an actual agreement. Illinois requires
bilateral conspiracy, so there was not sufficient agreement. Court
says not conspiracy here.
ii. Most states today approve the MPC definition of unilateral
9. WHEEL CONSPIRACY – one essential central figure reaches out to the
others, others may not know of the existence of other conspirators
a. Person might not be liable for the actions of the other “spokes” if they
are not aware of their actions
b. Ex: Kilgore- man hires different men to kill his brother-in-law at
different times. There court finds that there were two different
conspiracies here.
10. CHAIN CONSPIRACY – there’s no one person reaching out. There’s a chain of
individuals involved in the course of conduct. Everyone has a little role in it.
a. Could be liable for the actions of all conspirators
b. Ex: drug dealer in UT can assume that by the time that they get drugs
it has been passed through a chain of people.
11. If there’s one agreement, can’t charge individuals with several conspiracies.
Every conspiracy relies on a single agreement.
12. LIMITATIONS ON CONSPIRACY
a. Wharton’s rule – exception to common law rule that conspiracy & the
substantive offense are separate crimes to be punished separately.
(today applied in situations of bribery, gambling, extortion, sale of
stolen properly, or small drug sale. - these all need two people to
agree to commit the crime.)
24
i. Ianelli – gambling involving several ppl. Court says that we don’t
want to use Wharton’s rule bc we want them to be guilty for
both.
b. Protected Class – not held liable if you are in the protected class.
i. Ex: statutory rape
ii. Gebardi – couple cross state lines to have affair. “Man Act”
protects women. Because woman is in the protected class, there
is no agreement. Thus, under common law where agreement
with two ppl is necessary, there is no conspiracy.
c. Abandonment/ Renunciation – Some jurisdictions allow
abandonment as a defense to conspiracy charge. They have to show
complete withdrawal that’s not caused by fear or an inability to
complete the object of the agreement. This also requires an
affirmative act to show that they are leaving the conspiracy – can be
them stopping the offense or notifying the authorities.
d. Withdrawal – some jurisdictions say that if you withdraw after the
agreement, you’re still liable for conspiracy, but can limit liability for
future crimes that you make after the agreement.
i. Ex: plan to make a bank robbery and get out before the robbery
takes place. You are still liable for conspiracy to rob, but you’re
not guilty for the actual robbery or any crimes like assault that
happen during robbery.
ii. Minority rule: if you abandon/withdraw, then you are not at all
culpable.
iii. Majority rule: if you abandon/withdraw, then you are culpable
for everything that happens before act like conspiring, but
you’re not culpable for the murder.
xiii. LARCENY – a basic theft crime
1. DEFINITION: trespassory (didn’t have consent of the person) taking (thief
actually has to have control of the item) and carrying away (even the
slightest movement that you take to show your intent to take item and
commit larceny – taking and having possession of an item) of personal
property of another person with intent to permanently deprive owner of it.
2. Trespassory: do not have to have consent
3. Taking: having physical control over the object
a. Topolewski v. State: man wanted to steal meat from a shop, but the
owner put it out to “trap” him. When you provide an opportunity for
someone to take something, it is a trespassory element, but when you
actually help them take something, it is not trespassory taking
because they were given consent
4. Carrying away: the D has to take and have possession of the item, even the
slightest movement
a. Ex. Shoplifting – if you put something in your pocket and start walking
toward the door, that is enough for carrying away
5. Of another person:
25
6.
7.
8.
9.
a. Custody: person has physical control over property for a limited time
and purpose
b. Possession: person has actual or constructive control over property
with intent to possess it and the right to exclude others from
possessing it
c. Constructive Possession: Where the law deems a person to be in
possession of something that may not be in their immediate control,
but is within an area in which they have legal control and are
regarded as possessing the item (where legal fiction formed that gives
you possession)
i. You have a right to keep item from others
ii. Ex. Rental car – you have the right to possess it and keep it
from others, but you don’t have permanent possession rights
d. Owner: Person who has title to the property
With the intent to permanently deprive the owner of it:
a. Larceny is a specific intent crime – you have to have the intent to
permanently (substantial period of time) deprive the owner of it
b. People v. Brown: boy took a bike to teach another a lesson – he
intended to return the bike. Not larceny because it is a specific intent
crime. He did not have the intent to permanently deprive the owner of
the personal property
Larceny by Trick:
a. Possession which is obtained by fraud, so it is not trespassory, but the
intent is still to permanently deprive the owner of it.
b. Even if it was with consent, if the consent was given by fraud, then it is
larceny by trick
c. Rex v. Pear: A man rented a horse and sold it. It was larceny by trick
because he obtained the horse by fraudulent means (always had the
intent to steal it)
Abandoned Property:
a. Common law: if you find property, you have to make reasonable
efforts to find the owner.
b. If you don’t show reasonable efforts, then you show the intent to steal
c. Brooks v. State: Man found lost bank notes but didn’t make reasonable
efforts to find the owner – found guilty of larceny
Embezzlement:
a. When an individual in the course of their employment is entrusted
with property and then uses it for their own use.
b. Elements:
i. Entrustment: given the property voluntarily
ii. Conversion: take the property for their own use
iii. Fraud: specific intent to fraudulently convert the property to
your own use when entrusted with the property
c. To embezzle, you do not have to have the intent to permanently
deprive the owner of it
26
d. Rex v. Bazeley: bank teller took bank notes that were being deposited
and placed them directly in his pocket. It was not larceny since the
bank never had possession of the note and teller did not have the
felonious intent to steal at the time he received the note. But he did
embezzle because the notes were entrusted to him and he converted
it with a fraudulent purpose.
10. False Pretenses:
a. Obtains possession through false representation and with the intent
to steal, obtains both possession and title to property
b. Similar to larceny by trick – difference is that D not only takes
possession but ownership/title as well
11. False representation: can be express or implied
a. People v. Whight: Guy used his closed ATM card to get cash back from
the grocery store.
i. Implied false representation because he gave them his ATM
card.
xiv. OVERALL DEFENSES
1. In criminal trial the prosecution has burden of proof and they have to prove
every element beyond a reasonable doubt.
2. Four elements of a crime
a. Voluntary act
b. Actus reus – social harm
c. Mens rea – mental state
d. Element of causation – connection between voluntary act and social
harm.
3. Three different TYPES OF DEFENSES
a. Failure of proof defenses – where any kind of element of the mens
rea or actus reas or otherwise is disproven.
i. Ex: if there’s a mistake of fact, it negates the mens rea
b. Justifications – yes you proved every element, but “under the
circumstances, I did nothing wrong”
i. Best example of this is self defense. Yes I killed that man, but I
didn’t do anything wrong because he was lunging at me with a
knife so I shot him in self defense
c. Excuses – where a defendant says yes you’ve proved every element of
the crime, and “yes I did something wrong, but under the
circumstances I’m not responsible for my conduct.”
i. Best examples are intoxication and insanity.
4. JUSTIFICATION
a. SELF-DEFENSE
i. COMMON LAW: defendant must have believed that he was in
imminent threat of death or serious bodily injury
(proportionate) and his response was necessary and his belief
was reasonable
1. Imminent threat
27
a. Norman – battered woman; habitual spousal
battery is not a defense to murder charges. No
harm was “imminent” when she shot her
husband.
2. Necessary to save one self
a. Factors to prove in order to be a necessity
C. Crime committed must prevent a
significant evil/harm
D. No legal alternative
E. The harm caused must not have been
disproportionate to the harm avoided.
F. Ex: Nelson – man whose car was stuck
on side of the road. Wasn’t a necessity
for him to get truck
G. Necessity defense is not broad
3. Proportionality – the force of the aggressor and the
response to the aggression has to be equal.
a. Ex: you can’t shoot someone who shoves you.
b. Can’t use deadly force to counteract non-deadly
force
4. Reasonableness
a. Subjectively – it’s ok even if they’re wrong, as
long as it’s reasonable.
b. Objectively – what would an objectively
reasonable person do in the same scenario with
the same presumptions
ii. RULE OF AGGRESSOR: deadly aggressor has no right of selfdefense unless he withdraws and informs opponent of
withdrawal (CL + MPC)
1. DEFINITION OF AGGRESSSOR: an affirmative unlawful
act reasonable calculated to produce a fight foreboding
injurious or fatal consequences in an aggression.
2. Ex: Peterson –man stealing windshield wipers. Aggressor
doesn’t have the right to use self defense unless he
withdraws and tells opponent about his withdraw
3. If you have a non-deadly aggressor and the agressee
responds with deadly force to non-deadly force, then
the aggressor can respond with deadly force to protect
themselves in response
iii. DUTY TO RETREAT: majority; if you can retreat safely when
being threated with deadly force, you must do so. (comes from
common law)
1. Slim majority of jxns. say that you can stand your
ground if you are faced with deadly force. (Law in FL
and UT)
28
2. CASTLE EXCEPTION: Even if you could have retreated, if
you’re at home, you don’t have to
a. However, if you become the aggressor in your
home, then you no longer can use the castle
exception.
b. Definition of home: home and the area
surrounding your house (inside fence)
iv. MPC 3.04 – immediately necessary for the purpose of
protecting himself against unlawful force by such other person
1. Different from imminent threat, this is just immediately
necessary
2. This would help the wife w/ battered woman syndrome
get off
v. MPC 2(b)(i) – deadly force not justifiable if actor can avoid
necessity of using force by complying with demand that he
sustain. – (this is a broader duty to retreat rule).
b. DEFENSE OF OTHERS
i. Generally same as individual’s right – step into the shoes of the
victim – person has the same rights to defend as the victim has
ii. MPC – you can defend someone under a reasonable belief that
that person could defend themself
1. Most jxns say that as long as you had a genuine and
reasonable belief that that person had the right to
protect themselves then you could use the defense of
others defense
2. Minority of jxns say you can’t make a reasonable
mistake
iii. A defense of others jury instruction is appropriate when a
mother kills to defend her unborn child.
1. Most states – fetus is recognized as an “other”
2. Kurr – pregnant lady stabs boyfriend after he punches
her stomach
c. DEFENSE OF PROPERTY
i. May not use deadly force to prevent theft but in some
circumstances you may use non-deadly force to prevent
imminent, unlawful theft.
ii. Once theft has occurred you no longer can use the defense
unless you are still in hot pursuit. At that point you can use
non-deadly force.
1. Ceballos- man sets up gun device that shoots boy in face.
2. You can’t use mechanical devices that bring deadly force
d. DEFENSE OF HOME
i. You may use deadly force to protect your home, if it’s
necessary to prevent an imminent unlawful entry into your
home.
29
ii. Ceballos- You can’t use a mechanical device that brings deadly
force
5. EXCUSES
a. INTOXICATION
i. MPC for INTOXICATION
1. MPC 2.08 (1) – intoxication is not a defense unless it
negates an element of the offense
2. MPC 2.08 (2) – bc you are unaware of the risk you are
taking bc you are intoxicated, if you would have been
aware if you were sober, then you could be charged w/
recklessness even though he is not conscious of the risk
at the time. – only have to prove negligence to get a
conviction of recklessness
3. MPC 2.08 (4) – involuntary and pathological
intoxication is usually going to be a defense
a. Intoxication that is not a) not self- induced or b)
pathological are affirmative defenses if by
reasons of self intoxication the actor at the time
of his conduct either to appreciate it’s criminality
or to conform his conduct to the requiring of law.
4. Excludes intoxication by prescribed medications
ii. VOLUNTARY INTOXICATION DEFENSE
1. Failure of proof
a. Involuntary act that negates an element of the
crime. (rare)
b. No mens rea (specific intent crimes)
C. Veach – man drunk; threatens assault
and resists police officers.
D. When we have a specific intent crime
which requires you to have a desire to
do something particular, you can’t be
voluntarily intoxicated and meet that
intent.
2. Excuse (like necessity or duress)
3. Insanity: as a result of intoxication (not mental illness)
a. Fixed insanity: your brain is so damaged that you
can be deemed insane because of intoxication
iii. INVOLUNTARY INTOXICATION DEFENSE – defense to
general or specific intent crimes
1. Coerced ingestion – a person is coerced by someone
else to drink. ex: at gunpoint
2. Accidental ingestion – Ex: someone spikes someone’s
drink
3. Prescribed meds – unexpectedly become intoxicated by
taking drugs without knowing or having a reason to
know that it would lead to intoxication
30
4. Pathological intoxication – person unexpectedly
becomes intoxicated by ingesting a small amount of
alcohol and have a psychotic episode without knowing
that their body would react in that way.
b. NECESSITY (lesser of 2 evils) – generally dealing with the physical
acts of nature but it has been expanded
i. Prevent significant evil
ii. No legal alternative
iii. Harm caused not disproportionate to harm avoided
iv. Prison escape necessity: prisoner was able to use the necessity
defense. Prisoner met the three elements, he chose the lesser
of two evils.
c. DURESS – excuses people’s conduct when it’s brought on by another’s
threats/ conduct
i. Immediate threat of death or serious bodily harm
ii. Well-grounded fear that the threat will be carried out
iii. No reasonable opportunity to escape the threatened harm
iv. In some jxn’s if a person’s recklessness or unreasonable act
leads to him being in a position of duress, it is no longer duress
xv. Insanity: (EXCUSE)
1. Hardly ever used successfully. Very controversial.
2. A person who is charged with a crime and is mentally unable to appreciate
that crime has a complete defense to the charge and will be acquitted of the
charge. If a person suffers from a mental disease and thus can not be found
mentally competent
3. Punishment theories
a. Retributivist: they don’t deserve punishment
b. Utilitarians: they can’t be deterred from future behavior – they can’t
be held liable for it.
4. M’Naughton Test (most common test Old Common Law)
a. Two Prong Test: person is insane when they have a defect of reason
from disease of the mind so as not to:
i. Know the nature and quality of the act (cognitive incapacity)
1. Don’t know what they were doing
ii. Know what he was doing was wrong (Right/Wrong test)
1. Don’t know that it was wrong
b. Ex. Man who thought his neighbors head was a grapefruit and
squeezed him to death did not know what he was doing, so he was not
liable
c. Criticism: What if you know what you are doing is wrong, but can’t
control yourself? Leads to the irresistible impulse test
5. Irresistible Impulse test:
a. Person acts as a result of volitional or irresistible impulse
b. Would the person have still committed the crime if they were aware a
police officer was watching?
31
c. Ex. Lorena Bobbit: cut off her husband’s penis and was found not
guilty because it was an irresistible impulse
6. Durham Product Test: (not very favored)
a. A person is insane and not responsible for unlawful acts that are the
PRODUCT of a mental disease or defect
b. Psychiatrists like this better because they are in the driver’s seat
i. Usually a battle of the experts
7. MPC
a. M’Naughton and Irresistible Impulse
b. Changed the M’Naughton language to
i. Lacks the capacity to appreciate the criminality of their
conduct
c. Focus is more on the capacity rather than the right or wrong
8. Ex. Anatomy of a Murder: killed a man because he raped his wife: “I didn’t see
myself doing the shooting, but it wasn’t me”
a. Maybe best under the Durham test
32