CRIMINAL LAW OUTLINE
OK Court Structure
- Civil
o Start at trial, go to intermediate, then to OK Supreme Court
o S.C. of OK is exclusively civil matters
- Criminal
o Start at trial, then go to OK Court of Criminal Appeals
o OK Court of Criminal Appeals is co-equal with OK Supreme Court
o 95% of criminal law cases are handled by state court
Criminal Procedure
- If appealed
o Except on insufficiency of the evidence, could get a re-trial and harsher sentence
Offense Definitions
- IN GENERAL
o Aggravated
Victim was a police officer
Victim could be a woman or child
Serious bodily injury results
OR used deadly weapon
Fists can count
o No lo contendre
Defendant neither accepts or denies charge, but accepts punishment
o Misdemeanor v. Felony (Common Law)
Felony – Prison more than 1 year in a state penitentiary
Misdemeanor – Prison up to 1 year in county jail
o Unconstitutional Laws
Status crimes
No actus reus
Unconstitutional
Powell
o Not punished for status as alcoholic, but for being in public
while intoxicated
Robinson
o Convicted of status of being a drug user
o Unconstitutional
Addiction
o Involuntary
o Cannot convict someone for desire to commit a crime
Lacking in specificity or vagueness
Notice issue
Chicago v. Morales
o Too discretionary
o Give people the power to choose to obey the law
o Legislature Issues
Vast expansions of criminal law require legislature
Courts avoid striking laws down through
Reading in a state of mind term, often through legislature history
Will apply a specified mental elements to other elements
o U.S. v. X-Citement
Applied knowingly to the fact that minors were in
the sexual explicit materials
ACTUAL DEFINITIONS
- Arson (MPC)
o Starts fire or causes explosion with purpose of destroying an occupied building or
vehicle
- Causing or Risking Catastrophe (MPC)
o Causes catastrophe by explosion, fire, flood, or other harmful or destructive force
or substance
2nd degree – Purposeful or knowingly
3rd degree – Recklessly
- Criminal Mischief (MPC)
o Damages tangible property of another, purposefully, recklessly, negligently by
fire, explosives or other dangerous means
- Burglary – Breaking and entering into a dwelling at night by trespass with the intent to
commit a robbery
- Possession
o Mens Rea - Need guilty knowledge of what is possessed
o Actus Reus - Power and control
o Actual
Direct physical control and you know it
o Constructive
Power over the thing (access)
Intent to control
o U.S. v. Maldanado
Defendant must have knowledge of what is possessed
- Murder (Common Law)
o Killing of a human being by another human being with malice aforethought
- Misprision of Felony
o Duty to report felonies
o Requires knowledge that a felony has been committed and a failure to report
o Actus reus
Omission in not reporting
o Compels snitching
- Battery
o Unlawful application of force to the person of another resulting in a harmful or
offensive touching
o Mental state of criminal negligence is enough
o Application of force does not have to be direct
- Assault
o Attempted battery
o OR purposeful or intentional creation other than by mere words of a reasonable
apprehension in the mind of the victim of imminent bodily harm
Apprehension:
Fear or
Anticipation
- Kidnapping
o Moving someone some slight distance against their will
- Larceny
o Taking and carrying away the property of another by trespass with the intent to
permanently deprive them of it.
- Robbery = Larceny + Assault
- Conspiracy
o Agreement between two or more to break the law
o Intent to agree
o Intent to achieve the objective of the agreement
o An overt act in furtherance of the conspiracy
- Sodomy
o Texas – Devuate sexyak ubterciyrse
Defenses
- In general
o Cannot prevent evidence that pertains directly to the mental element of the crime
Harms presumption of innocence
- Intoxication
o Almost never a defense
o Unless intoxication was so bad, could not act with purpose or knowledge
o Cannot work for criminal negligence or recklessness
o New Jersey Supreme Court: Voluntary intoxication can negate a mental element
of an offense, but it must be such that a prostration of faculties resulted and that
the requisite mental state was totally lacking
- Insanity
o Has mental disease or defect and as a result
o Lacked the capacity to conform
- Automatism
o Someone who although capable of acting is unaware of what they are doing
o Does not require mental defect
o “Earn” this through expert witnesses
o If defendant was aware of the cause of the condition, not taking medications or
drinking, they can still be held to be acting culpably
o Types:
Sleep walking
Shock reflex
Epileptic seizures
- Amnesia
o Not a defense
o Just because you do not remember it does not mean you did not do it
- Estoppel Excuse
o Rely on an official statement by an official officer in an official document and
believe conduct does not violate the law
o Typically the highest prosecutor charged with interpreting the law
o Lawyers
MINORITY: Allowed evidence based on reliance on a private attorney’s
advice
MAJORITY: No estoppel if relying on advice of private lawyer
- Entrapment
o Law enforcement must provide
Appetite to commit the crime
Environment to commit the crime
Introduction
In General:
- No common law for crime
- MPC
o ALI
o Standard or potential standard for what state penal code should be
- Charging
o Gives notice
Information
What the defendant has done filed by a prosecutor
Demurrer is an answer to an information
Indictment
Sought by prosecutor from grand jury
Only hears prosecution case
Probable cause that they committed the crime?
- Due Process
o Notice
o Opportunity to be heard before depriving of:
Life liberty or property
o Prohibits shifting of burden of proof
o Showing disparate impact?
Requires showing of discriminatory intent
Contemporaneous statements by officials
o Judges
o Jurors
o Defense attorney
o Prosecutor
Showing statistics is enough in
o Employment and
o Jury selections
BUT, capital sentencing NEEDS discretion
o Abuse of discretion needs exceptionally clear proof
- Writ of Habeas Corpus
o Can seek release before trial
o Anytime freedom is restricted
o Challenge to custodian to give sufficient reason why this person is in custody
o Can get to federal ourt
Purposes of Criminal Law
- Punishment (incarceration or fine)
o Civil - Restitution
- Deterrence
o Specific – To the criminal
o General – Others
o Prison
Deterrence v. Hardening
- Incapacitation
o Prevent criminal from committing crimes
o Requires
Some offenders must be repeaters
Taken off the street and not immediately replaced
Must not have sufficient increase in post-release criminal activities
- Rehabilitation
o Prevent reoffending
o Schools for crime
- Retribution
o Revenge – Community bloodlust
o Expeation - Atonement through suffering
o Les talionis – Eye for an eye
Only possible for 1st degree murder
- Demarcation
Proportionality
- 8th Amendment
o Cruel and unusual punishment
o Only applies after trial/conviction
o Only forbids grossly disproportionate
o Prohibits ignoring health concerns of inmates
o Right to bail can be denied if
Might run
Dangerous
Seriousness of risk
Ties to community
o Prohibits execution of mentally retarded (Atkins)
Manifest before you’re 18
Inability to:
Reason
Communicate
Care for yourself
o Prohibits execution based on age limit
18 (Simmons)
Legislative Intent in a Criminal Statute
- Floor statements
- Prior drafts
Strict Liability Crimes
- Types
o Substantive – Malum prohibitum without moral fault
o Pure – No awareness with respect to all elements
o Impure – No awareness with respect to at least 1 element
- Do not require proof of mens rea
o Even if only for ONE element
o People v. Dillard – Crime completed by possessing the loaded gun in public
- Very Narrow
- Not favored
- Due process violation unless they (6th and 8th circuit opinions) NOT FOR FELONIES –
(U.S. v. Wulff - Migratory bird parts
o Carry a small penalty
o Do not gravely besmirch
o Felonies result in loss of civil rights
- Seems to be appropriate in regulation context
o Balances risk between public and corporations
o U.S. v Dotterweich – Statute applies to those who stand in responsible relation to
the illegal conduct
- In General – Only fines without culpable mental state
- MPC
o Cannot even be a misdemeanor, only a violation
o Fine/forfeiture/civil penalty that does not give rise to any disability or legal
disadvantage based on a conviction of a criminal offense
- Impossibility is a defense to strict liability crimes
Types of Crimes
- Malum in se
o Inherently evil
- Malum prohibitum
o Legislature determines
Doctrine of Waiver
- Defendant cannot appeal any trial ruling without objecting to it
- Failing o object generally speaking, is a waiver to the issue
- “Contemporaneous objection” rule
- EXCEPTION is the plain error rule
Plain Error Doctrine
- Defendant has a duty to object as early as possible to anything wrong
- Cannot raise new issues on appeal in general, unless they are BIG
- Need a “contemporaneous objection” or you “waive” the issue
- So fundamental, judge had a duty despite the lack of objection
Ex Post Facto
- Cannot today create a crime and punish prior conduct
- Can eliminate common law defenses
o Courts do this anyway
o Remember Rogers v. Tennessee
Blockberger Case
- For two offenses to be different, one element must be different
- Crime 1 – A,B,C
- Crime 2 – A,B,C,D
- Crime 1 is the lesser included offense of Crime 2
Elements of a Criminal Offense
- Overall
o Equation: Actus Reus + Mens Rea + Attendant Circumstances + Causation +
Harmful Result – Affirmative Defenses
All + terms are prosecutors burden of proof beyond a reasonable doubt
All – terms are defendant’s burden of proof beyond a reasonable doubt
- Actus reus
o Maybe sufficient (strict liability crimes) , but necessary
o Required
Past
Voluntary
Voluntary – Brain commands muscles to do something, willed
muscular contraction
Involuntary – Non-willful muscular contraction
o Seizure
o Sleepwalking
Voluntarily encountering or bringing about the situation can satisfy
voluntariness (knowing you are epileptic and driving anyway)
Newton - Gun on plane, had unscheduled top
Grant – Epileptic seizure and hit police officer
Newton (2) – Shot police officer in reflex shock reaction
Wrongful
Proctor v. State – Keeping a place was the actus reus
o Ultra Vires – Beyond legislative power, overt act is not
wrongful
Conduct
Specified
Principle of Legality – To be punished, crime must be specified in
advance (Chicago v. Morales - Vague)
“Nullum crimen sine lege; nulla poena sine lege”
o No crime without law, no punishment without law
Notice issue: Duty to become aware of the law
o Ignorance is no excuse, we have constructive knowledge
In advance
Ex-post Facto issues
Retroactive illegalization is fine as long as it isn’t “unexpected and
indefensible by reference to the law which has been expressed
prior to the conduct in issue”
By statute
LAST THREE IMPLICATE DUE PROCESS
o Act or omission
Omissions require duty to act (Jones case) and a breach of that duty
Passive omissions for offenses that are not malum in se require notice of
the duty. (Narrow exception)
Ways to find a duty
Statute imposing duty of care
Status relationship
Contractual duty
Voluntary assumed care of another that creates seclusion (others
are not going to help)
If you create peril that gives rise to a duty
Duty can come from the law
o Building codes
o Do not use negligence per se
No duty, no crime by omission (People v. Beardsley)
- Mens rea
o Mental element
o Insufficient by itself
- Circumstances
- Causation
o Harm does not have to be physical harm, can be increase alone
- Harm
o What exactly is harm?
o Lawrence v. Texas – Anti-sodomy law interfered with substantive due process
right
- Affirmative Defenses
- Any reasonable doubt in any element = acquittal
The Guilty Mind
Mens Rea
- In general
o Actus non dacit neum nisi mens rea
The act does not make you guilty unless the mind makes you guilty
o Duty to know what the crime is, not knowing is not a defense UNLESS
Knowing is an element of the crime
o Volume 21 of Oklahoma Statutes
Different than Model Penal Code
o Model Penal Code – Requires mental state for each MATERIAL element of the
crime; mental states for each element may be different
o Cannot transfer mental state from one crime to another
o Strict liability crimes do not require mens rea
- Language: Intent, goal purpose, willfully, wantonly, recklessly, negligently
- Specific versus General
o Specific
Purpose, knowledge
Crimes with more than one intent/state of mind (Coyne – Requires proof
of mens rea beyond whats required for the actus reus “with the purpose of
committing a felony”)
o General
Reckless
Negligent
Coyne – Just itent for the actus reus (rape)
- Capacity for Mens Rea
o Hendershott – Adult minimal brain dysfunction, did not have capacity to form
knowing or reckless state of mind
o Majority – Do not allow evidence as to mental stability
- Types
o Purpose
Goal (Concious objective)
Objective
What you wanted to do
“Positive desire to cause the result”
Regina v. Prince – Maliciously ~= purpose
o Knowledge
Understanding of highly probable risk
Practically certain
Aware of violation
“Scienter” – Guilty knowledge
Nearly certain conduct will cause the result
“Highly probable risk”
Shoot gun just to hear it
Can be constructive
Willful blindness is the same as knowledge
Jewell – Marijuana in secret compartment
o Recklessness (wantonly)
Aware of a substantial and unjustifiable risk of causing the result and
disregard that risk
Aware of a substantial and unjustifiable risk that your conduct will cause
the harm; and consciously disregard that risk
o Criminal negligence
Duty greater than torts in general
Existence of a substantial and unjustifiable risk of causing the result, but
not aware
Mistakes
- In general not an defense
o Unless mistake negates an element of the crime
- Ignorance is no excuse
o Ignorantia legis neminem excusat
Coyne – Ignorance of the law is no excuse unless the law requires the
defendant to act with knowledge of the law.
o Narrow exception in Lambert v. California
Prohibitions that are not malum in se for passive omissions
o EXCEPTIONS
Unpublished statute
Relying on an official interpretation of the law or advice, but not private
attorney (Twitchell)
“Entrapment by Estoppel” – Defense to mistake of law
Hopkins - Created signs soliciting marriage, relied on state
attorney’s statement that his signs were OK by law. No defense.
- Mistake of law
o Bray – Unaware of felony status
Unaware of status, could not have state of mind required by the violation
o Reliance on a chief officer of the law’s official opinion
o Hypo(1): Cannot sell firearm to a known convicted felon, aware of assault
conviction, mistakenly believes assault is a misdemeanor Liability
o Hypo(2): Car repossessed, take your keys and drive it away thinking its yours.
Negates specific intent
- Mistake of Fact or Ignorance of a fact
o Will effect criminal guilt if it negates mens rea
o Will not negate strict liability
- Reasonableness of mistake
o Reasonable mistake will negate general intent
o Even unreasonable mistakes can negate specific intent
- Some states allow for defense to statutory rape with respect to age
o Mistake must be reasonable and in good faith
- Regina v. Smith
o Defendant believed wiring was his, could not have required intent for larceny
- US v. Baker
o Did not know selling Rolexes was a crime does not negate mens rea
- Hypo (1): Hunter shoots deer, mistaken in the fact that it was a human
o Cannot get murder charge (no purpose or knowledge)
o Could get reckless or negligent charges
Causation
- Common law
o Year and a day rule
Hypo: Stabbed in heart, died 15 months later, dies of kidney malfunction
Common law: No liability
Modern: Due to advances in modern science, causation was
extended
o Life expectancy is irrelevant
Homicide Offenses Generally
Murderous Animals
- Berry v. Superior Court – Pit bull mauled a 2 year old to death
Analysis
- Start with purposeful killing (assumed)
- Find Malice
- Premeditated/Deliberated?
o Yes 1st degree
o No 2nd degree
- Adequately provoked?
o Yes Voluntary manslaughter
o No 2nd degree
Manslaughter
- Killing of a human being without malice
- Voluntary
o Can share purpose with murderer
- Involuntary
o Not purposeful
o Extreme recklessness/negligence
Malice Aforethought – REQUIRED FOR MURDER
- MANSLAUGHTER + MALICE AFORETHOUGHT = MURDER
- Does not mean pre-mediation and deliberation
- Types:
o Expressed
Intentional, unmitigated killing
NOT ONE OF THE FOUR, abandoned and malignant heart
o Implied – Does not require purpose of causing death
Purpose or goal or intention to inflict serious bodily harm
Extreme recklessness with respect to a serious risk of harm to human life
Causing death while committing certain dangerous felonies (FELONY
MURDER)
Requires a statute to list felonies (felony murder statute)
Does not require showing of intent to kill
MALICE is presumed from the underlying felony
MPC types:
o Robbery
o Rape
o Deviate sexual intercourse by force or threat of force
o Arson
o Burglary
o Kidnapping
o Felonious escape
Death must be foreseeable
o “Death is the probable consequence of the predicate
felony” New Jersey
o Contrast with Stamp
Getaway driver was charged with murder for fat
guy who had heart attack
o And Martin
Lit bag on fire, burned and killed girl
Strict liability with respect to the death of the girl
(this might have been foreseeable though)
Death caused
o In commission
o In escape
When does escape end?
Gladman
1. Whether culprits had possession of fruits
of criminal activity?
2. Whether police, security guards, or
concerned citizens were in close pursuit?
Affirmative Defense to Felony Murder
o 1. Did not commit homicidal act
o 2. Not armed with a deadly weapon
o 3. No reasonable ground to believe any other participant
was armed with a deadly weapon AND
o 4. No reasonable ground to believe any other person
intended to engage in conduct likely to result in serious
injury or death
Murder
- MPC requires purposeful killing or with knowledge (virtual certainty)
o Treats recklessness/negligence => Voluntary/Involuntary manslaughter
- Killing of a human being with malice
- 2nd degree – Regular murder (malice aforethought)
- 1st degree – Elevated 2nd degree murder
o Premeditation and deliberation
Generally look to amount of time
Based on facts surrounding the killing
Mitigating stuff
Mental illness/defect – Incapacble of premeditating or deliberating
Intoxication – SO drunk, incapable of forming
premeditated/deliberate purpose to kill
Premeditation
Reflected upon or thought about before hand the killing
Deliberation
Decided to kill in a cool, dispassionate manner
U.S. v. Watson – Victim plead for life, perpetrator stood up, then
shot him
o Common law factors ( Elevate to first degree murder)
Torture involved
Poison
Lying in wait
Voluntary Manslaughter
- Requires adequate provocation
- “Criminal homicide which means committed with knowledge or purpose, that would be
murder but for the fact that it was committed with extreme mental or emotional
disturbance that was reasonable.”
- MPC – Gross negligence or recklessness
- Murder + adequate provocation = voluntary manslaughter
- Adequate provocation
o “Unsettling of reason”
o “Brevis furor”
o Does not justify killing
o “Reasonable people would be tempted to kill”
o MPC – “Extreme mental or emotional disturbance”
o People v. Walker – 6-15 minutes was not deemed to be enough to adequately cool
o Common Law:
Serious physical battery that does not give rise to self defense
Witnessing adultery (Rowland v. State)
At common law, provocation is not allowed to accumulate
Mere words are not enough UNLESS
Discuss a fact that would have been provocation if actor observed
it himself
o Elements
Adequate
Must present evidence that is “sufficient” in order to get the
instruction judge decides
Must INFACT be provoked
Must NOT have cooled off, or had time in which a reasonable
person wold have cooled off
Reasonable people would be provoked
The extreme mental or emotional disturbance could make a
reasonable person tempted to kill
SOME COURTS:
o Does not have to actually witness
o Can surmise it from circumstances
Modern departures
o Can accumulate – heat of passion
People v. Berry
Rachel taunted defendant, he waited for 20
hours
His passion was the result of a long course
of provocative conduct
But not, People v. Gouganas
o Expansions
Can be depression
Sadness
Shaming
Guilt
Anger (typical)
Fear (People v. Tapia – Drug dealer)
o Expansion on “disturbance such that a reasonable person
would be tempted to kill”
What is a reasonable person, what circumstances
does this include
MPC
o Physical handicap
Blindness, etc.
o Mental handicap
o NOT
Racism
Extremism
Cultural standards?
o Wu case
Involved trans-cultural
psychologists
Court held jury should
consider cultural background
relevant to provocation
o Not settled law
In fact provoked
No opportunity to cool off
Were they in fact cooled off OR
Sufficient time for a reasonable person to cool off
No set cooling off time period
o 9-10 months is enough as a matter of law (Ex Parte Fraley)
Involuntary Manslaughter
- WHEN IS THIS RECKLESSNESS DIFFERENT THAN MALICE
AFORETHOUGHT?
- At common law, punished by death
- Recklessness/Negligent killing
- Negligent?
o Common law – committing an unlawful act and death occurs
o MPC – “Gross” or criminal negligence
Gross – GROSS deviation from standard of care
o In some jurisdictions
(Mass) mere gross negligence is not enough (Welansky)
Require recklessness for homicide at a minimum
o Majority: Criminal negligence is sufficient
Involves reasonable people standard again
Consider cultural background? (State v Williams – Child toothache
Indian case)
Porter
Running stop sign, hits and kill someone
Ordinary negligence is NOT enough
Washington allows for ordinary negligence
- Recklessness – aware of a substantial and unjustifiable risk and disregarding that risk
o Murder – Whether the actors conscious disregard of the risk, under the
circumstances, manifests extreme indifference to the value of human life
o Ordinary – Whether the actor’s conduct departs from acceptable behavior that it
constitutes a “gross deviation from the standard of conduct a law-abiding person
would observe in the actors situation”
o Gross recklessness elevates to intentional and unmitigated – To the murder
analysis (gross recklessness is malice aforethought) ABANDONED AND
MALIGNANT HEART!
o Reckless murder
Remember that alcohol has no effect on this state of mind (general)
Mayes – Threw beer glass at wife while drunk
Being hammered is evidence of recklessness (Watson)
Capital Punishment
In general:
- Abolished states
o Illinois
o New York
o New Mexico
o New Jersey
o 16 states total
- Prosecutor has unguided discretion in whether to seek death penalty
- Limitations on who is eligible
o Penry – Cannot kill retards
o Roper – Cannot kill under 18 year olds
These two for “evolving standards of decency” for what is cruel or
unusual
o Coker – No death penalty for rape of an adult
o Gregg – Automatic death penalty is unconstitutional
Cannot punish all killers with death
- Safeguards
o Ratification – double trial
o Guided discretion – aggravating circumstances, mitigating factors (character,
circumstances, record)
o Automatic review
o Proportionality review (some states)
- Death penalty is very expensive
- Individual sentencing
o Separate sentencing trial
In guilt phase prior offenses may be irrelevant
Sentencing phase – open ended relevance
Must have a unanimous jury verdict
o Jury should be told the nature of a life sentence (parole or
not)
o Individual jurors may weigh mitigating/aggravating
circumstances however they want
Requires murder +
o Must persuade jury beyond a reasonable doubt that at least
1 aggravating factor exists UNANIMOUSLY
o At least one enumerated aggravating circumstances
MINORITY: Allow for non-statutory aggravating
factors
Some states allow evidence of non-adjudicated
defenses
Think narrowing of the class eligible for death
penalty
Must be unanimous that all jurors agree on “beyond
a reasonable doubt” standard
Can violate due process due to vagueness
Examples – Think NARROWING
o Premeditation/deliberation
o Felony murder
Can allow for double
counting
Under Enmund
(1) Killed
(2) Intended to kill
(3) Attempted to kill
Tison expands Enmund
Rule
If enmund is not proved, then
(1) Reckless indifference to
the value of human life OR
(2) Substantial participation
in underlying felony
o Killing more than one
o Great risk of death to more than one
person
Persons other than intended
victims
o Purpose of avoiding or preventing a
lawful arrest
o Precuniary gain
Killing for money
Murder for hire or for
insurance benefits
- Cannot be everyone who commits murder
- Automatic death penalty is unconstitutional
o Needs narrowing (this particular defendant needs more punishment)
Aggravating factors (see above)
Mitigating factors
Not saying EXCUSE, maybe not deserving of death
Statute can list some, but cannot be exclusive
Only one juror needs to find on clear and convincing standard
Families on both sides can testify, including victim impact
testimony
Anything in the
o Record
o Character
Even being good in jail around the trial
o Circumstances of the offense
Relating to the crime
Expanded now to not just relating directly to the
crime: History of family abuse, etc.
Justification and Excuse
In General:
- Crime has been committed already
Justification
- Committed crime, defendant did not do any harm
o Self defense
o Necessity
- Advances social interest or vindicated a right of sufficient weight such that the defendant
“did no wrong”.
- Society encourages
- Exonerates conduct as “right”
- Commanded or authorized by law
Self Defense
- Defendant puts on more than a mere scintilla of evidence, then BOP shifts to prosecution
- Rule:
o When a person has reasonable grounds for believing and does in fact actually
believe that the danger of him being killed, or of receiving great bodily harm is
imminent, he may act on such appearances and defend himself, even to the extent
of taking human life when necessary, although it may turn out that the
appearances were false, or although he may have been mistaken as the extent of
the real or actual danger
o Gleghorn – If a person attacked defends himself so successfully, that the attacker
is rendered incapable of inflicting injury, or for any other reason, the danger no
longer exists, there is no justification for further retaliation
o Subjective self-defense
What he himself in good faith honestly believed and had reasonable
grounds to believe was necessary for him to do to prevent himself from
apprehended death or great bodily injury
- Reasonable belief
o Factors to consider?
Wu, Native Americans
Standard not yet clear
Goetz – He was robbed before
- Castle Doctrine
o Defendant is the non-original aggressor, do not have to retreat. Reasonably
believe it’s necessary
Unless the aggressor also lives in the house
o Can kill an intruder, presume reasonable fear of death or bodily injury
- Battered Wife Syndrome
o Regular pattern of spousal abuse creates in the battered spouse low self-esteem
and learned helplessness a sense that she cannot scape from the abusive
relationship she has become a part of
OK allows
Some do not
NONE when the wife hires a hitman
Necessity
- Natural forces make defendant reasonably believe that he must do something unlawful
for the greater good
- Cannot kill to protect property
- Can kill to protect human life
- Queen v. Dudley – Should have drawn straws (cannibalism case)
- Elements – Common Law
o 1. Reasonable threat of imminent harm
o 2. Only choice is to be unlawful
o 3. Harm caused less than harm avoided (objective test)
o 4. Cannot create the emergency
- COPS
o Common law – deadly force allowed for killing of a fleeing felon
o Garner – Deadly force cannot be used to stop non-dangerous fleeing suspects
Constitutes unreasonable seizure
Excuse
- Majority puts BOP on the prosecution
- Something harmful occurs, but circumstances limited voluntariness or she could not have
been deterred
o Insanity
o Duress
- Society condones
- Person is blameless for the wrongful conduct
- Crime for which there is defense
Duress
- Elements
o Not guilty if you commit a crime under threat of imminent death or great bodily
harm
Reasonably believe succumbing to the threat is the only way to prevent it
from occurring
Must not be at fault for being in the situation
Not a defense to criminal homicide or attempted homicide
Insanity
- In general:
o Competency – To stand trial
Dusky – Whether the defendant has a rational understanding of the
proceedings and is able to assist his lawyer in his defense
o Being found not guilty by reason of insanity usually results in being committed to
mental institution
o Insanity is not a mental disease or defect in and of itself
o Not as wonderful as it sounds
o Prosecutor has right to examine defendant with state psychiatrist
o In some states, by statute, prosecutor can appeal
o Defendant has burden of showing more than a “scintilla” of evidence, then
prosecution must prove sanity beyond a reasonable doubt
Presumption that people are sane
Ganzer syndrome – Attempt to appear insane (can be to avoid
prosecution)
Results in a battle of experts – Ultimately a judge decision
Look to credibility
Mini voire dire for each expert
Experts cannot testify to the ultimate issue – this is the finder of
facts job
o “Quasi-Insanity” defenses
Intox – usually find the act in purposefully drinking
Exception – when the drug triggers a psychotic state long after the drug
has worn off (State v. Maik)
o Temporary Insanity – Lorraina Bobbit
Can be quickly released
“Not likely to relapse”
o Post-traumatic stress syndrome, shell shock, battle fatigue, nostalgia
Limit to people who actually witnessed the trauma
o Post-partum depression
o PMS
o Gambling/Sex addiction
This is voluntary
Defendant is just bad at controlling impulses
o Definitions:
Psychotic – deranged, lost contact with reality
Psychopath – Personality disorders, anti-social, low tolerance for
frustration
o Diefic decree, is not an exception, it is a factor
Way of showing whether a person has ability to distinguish between right
and wrong
- Trial competency
o Able to:
Assist lawyer in defense
Have a rational understanding of the proceedings against him
o Failing test results in commitment to institution until competency is established
- M’Naghten test
o Defect of reason or
o Disease of the mind
Not know the nature and quality of the act he was doing
Not understand the wrongfulness
o Federal and ¾ of the states
Alaska has substantial capacity, and then M’Naghten factors
- Another test
o Defect of reason or disease of the mind such that he
Does not know the nature and quality of the act he was doing or
Does not know what he was doing was wrong
o VERY narrow – need disease and expert testimony
o Some courts say you know you have a gun and pulled the trigger is enough
o The second prong can be interpreted to be aware that it is a crime, but not
necessarily wrong
o Otherwise wrong
Based on standard of morality, must be a societal standard (Serravo
stabbed wife, wanted to build Jesus sports complex)
- MPC test
o Irresistible Impulse Test
Whether defendant had substantial capacity to appreciate the criminality
of her conduct and whether she lacked substantial capacity to conform
herself to the law?
After Reagan was shot, congress abolished volitional prong (conforming
conduct to the law).
Criminal
- Neither excuse OR justification
Inchoate Offenses
- In General:
o Crimes that are not yet completed
- Attempt
o If crime completed, cannot be charged with attempt and the crime (MERGER
DOCTRINE)
o An act which falls short of completing a crime, but with the purpose of
completing a crime
o Act must be greater than “mere preparation”
o Cannot attempt second degree murder (Lyerla)
o Mens Rea
Specific intent to commit a crime
o Actus Reus
Some action that goes beyond mere preparation for the crime
o Tests for attempt
Physical proximity doctrine
The overt act required for an attempt must be proximate to the
completed crime, or directly tending towards the completion of the
crime, or must amount to the commencement of the consummation
of the crime
Dangerous proximity
The greater the gravity and probability for the offense and the
nearer the act to the crime, the stronger the case for labeling an act
an attempt
Indispensable element test
Variation of the proximity tests which emphasizes any
indispensable aspect of the criminal endeavor over which the actor
has not yet acquired control.
But for interference test
Also known as the probable desistance test, conduct is an attempt,
if in the ordinary and natural course of events without interruption
from an outside source, it will result in the crime intended
Abnormal step approach
An attempt is a step toward crime which goes beyond the point
where the normal citizen would think better of his conduct and
desist
Boundary a law abiding citizen would not cross
Based on moral social lines (McQuirter racism case)
MOST COURTS DO NOT USE THIS: NEED TO BE SURE TO
NOT PUNISH MERE PREPARATION
Unequivocality test
Based on intent; an attempt is committed when the actor’s conduct
manifests an intent to commit a crime
MPC approach
Substantial step
o Waiting
o Following
o Casing
o Possession of crime materials without lawful purpose
The overt act/omission must constitute a substantial step (strongly
corrobative of the actor’s criminal purpose) in a course of conduct
planned to culminate in commission of the crime.
Staples – Drilling the floor to steal the monies
o Mens rea must be specific intent
Can not attempt negligent or reckless crimes
Proof can be through confession/accomplices/writings, etc.
Hypo(1) – Man fires gun in crowded room, extremely reckless, he is
stopped. No intent to kill no attempt
Hypo(2) – Fires gun at engine block, kills girl. Murder is RECKLESS, 2nd
degree. Cannot attempt 2nd degree murder
o Defenses to Attempt
Abandoning - Cross the line into attempt and then change their mind,
abandoning the attempt
Majority – Not a defense
MPC
o Sure, if abandonment is voluntary
Not due to fear of being caught
Not because the crime became more difficult
o AND, is a COMPLETE renunciation of criminal purpose
o CANNOT be a postponing of the crime
Some cases provide by statute
o Child snatching (return within 14 days and charges
dismissed) Must still be voluntary
Impossibility
Cannot attempt a legally impossible crime – LEGAL
IMPOSSIBILITY – Even if fully carried out, conduct does not
constitute a crime. (Guy dying before bullet hits him)
o Receiving a recovered stolen coat is not attempted
receiving stolen goods
Factual impossibility does not matter however – FACTUAL
IMPOSSIBILITY – Pull trigger to kill someone sleeping in the
bed who is not there. (Attempted murder).
o Sticking hand in empty pocket is attempted larceny
o Punishment for Attempt
Split
Attempt can reach punishment of actual crime
Impossibility
- Factual impossibility
o Objective of defendant is infact criminal, but some circumstances unknown to the
defendant prevent him from bringing it about.
o Example (1): Pickpocket reaches into empty pocket
Guilty of larceny? No, did not take anything
Attempt? Yes, took action with requisite intent
- Legal impossibility
o Circumstances where a defendant’s actions, even if carried out as defendant
desires, would not constitute a crime
Solicitation
- If crime completed, cannot be charged with solicitation and the crime (Merger Doctrine)
o If crime is completed, solicitor and solicitee are both guilty of completing the
crime
- Advise, incite, counsel, urge or command someone else to commit a crime
o Approving someone’s plan is not enough
- Actus Reus
o Language
Advising
Inciting
Counseling
Urging
Commanding
______ someone to commit a crime
o Types: writing a letter, talking, etc.
o Even if they say no, the act is still committed
o Lubow – Let’s make it a big bankruptcy
- Mens Rea
o Intent that the crime be carried out
- Defenses to Solicitation
o Impossibility is NOT a defense
o Abandonment is NOT a defense
- Punishment
o Generally the same as attempt
o (1st degree 2nd degree)
Complicity
- NOT A CRIME – “become criminally responsible before the doctrine of complicity”
- Mere presence is generally not enough
- Types
o Principal in the 1st degree
Actus reus + mens rea of crime
Equally liable to accomplice
Committed the act or omission
o Principal in the 2nd degree
Aids, counsels, commands or encourages the principal in the first in the
commission of the crime AND is present
The principal in the first need not know he is receiving assistance
Same punishment as principal in the first
Equally liable to accomplice
o Accessory before the fact
Not present at commission of crime
Aids, counsels, commands or encourages the principal in the first in the
commission of the crime
Provide weapon, be a look out or getaway driver
Same punishment as principal in the first
o Accessory after the fact
Recieves, relieves, comforts or assists another, knowing the person has
committed a felony for the purpose of helping them escape trial, arrest or
conviction
Generally less punishment
Misprision of felony can result in accessory after the fact
- Aiding and abetting
o Complicity
o “Act with knowledge of the criminal purpose of the perpetrator and with the
intent or purpose of either committing or encouraging or facilitating commission
of the offense” – Majority and MPC
o Vicarious liability – Usually only accountable for their own actions, but
complicity, due to connections with the conduct, they are held liable
o Aiding and abetting murder Guilty of murder
o Actus reus
Engaging in conduct that will make you liable, even encouragement, does
not have to be a but for any encouragement, etc.
Soliciting
Encouraging
Aiding
Tally – Telegram was enough
Hypo(1): Opening door for bank robber? Accomplice to robbery if
requisite mens rea is present
o Mens rea – Both require knowledge of the crime
Purpose that the crime be committed
Sharing the purpose of the perpetrators
- Retard Wannabe Cops
o RULE: To be guilty as a principal in the second, it is essential that the defendant
share in the same criminal intent of the principal in the first. To feign accomplice,
it is not required to take an officer of the law into confidence to avoid imputation
of criminal intent.
o Wilson v. People – Helped a guy rob a store in order to get him caught. (Smells of
shit)
Conspiracy
- In general:
o Agreement between 2 or more persons who agree to commit a crime PLUS an
overt act (does not have to be more than mere preparation)
o DOES NOT MERGE (Merger Doctrine)
o Pinkerton
Co-conspirators are liable for all crimes committed by co-conspirators in
the furtherance of the conspiracy
o Agreement
DO not have to know identity of other party
Does not have to be verbal communication
Jury can infer agreement from acting in concert
Griffin v. State – Defendant drives car into ditch, crowd of on-
lookers jump in to beat up cop with defendant
Rule: Direct evidence of conspiracy is not necessary.
Circumstantial evidence is sufficient. It may be inferred, even
though no actual meeting among the parties is proved, if it be
shown that 2 or more persons pursued by heir acts the same
unlawful object, each doing apart, so that the acts, though
apparently independent, were in fact, connected.
o Actus reus
Majority - Can be any overt act that is done in furtherance
Only has to be committed by one of the conspirators
Traditional and MPC – Agreement is the actus reus
o When do they end
Impossible to reach goal of conspiracy DOES NOT end
Agreement is key
Can withdraw
Tell co-conspirators you are out
o Must be reasonably calculated to reach some of them
Engage in inconsistent acts with the object of the conspiracy
Withdraw results in no longer liable for FURTHER criminal acts by ex-
co-conspirators
o Suppliers: The intent of a supplier who knows of the criminal use to which his
supplies are put to participate in the criminal activity connected with the use of his
supplies may be established by (intent to further) Requires knowledge of the
illegal activity and intent to further the illegal use of the goods or service
Intent can be sound through
Direct evidence OR
Through an inference that he intends to participate because of
o His special interest or stake in the activity OR
o No legitimate use for the goods services exists OR
o Volume of business with the buyer is grossly disparate to
Any legitimate demand OR
When sales for illegal use amount t a high
proportion of seller’s business
o Mental Element
Majority: Do not need to have knowledge that the object of the conspiracy
is illegal (corrupt motive)
Intent to enter the agreement or
Intent to achieve the objective of the agreement
o Federal Seditious Conspiracy Law
18 U.S.C. 2384
2 or more conspire to
Overthrow
Putdown
Destroy
The U.S. Government or By force
Prevent
Hinder
Delay
Execution of any law of the U.S. or by force
Seize
Take
Possess
Any property of the U.S. contrary to U.S. authority
o Can conspire to commit even a civil wrong
o CAN ALCOHOL NEGATE INCOHATE OFFENSE MENS REA?
- Pinkerton Rule
o Vicarious liability for crimes committed by co-conspirators
o Do not even have to be aware
o Diaz
Unless that crime could not be reasonable foreseen as a necessary or
natural consequence of the unlawful agreement
The act must be foreseeable and in furtherance of the conspiracy
- Compared to Attempt
o Preparatory acts are sufficient for Conspiracy but not Attempt
o Conspiracy requires 2 or more people
Theft Offenses
Definitions
- Misappropriation – Illegally use the property or funds of another person for one’s own
use or another unlawful use
- Conversion – Voluntary act of one person inconsistent with the ownership rights of
another person (theft in general)
- Fraudulent
o Receives into his possession
o Money or property of another person
o And fraudulently withholds, converts, or applies
o To his own or another (other than the owner) use or benefit
- Larceny by trick – Owner consents, but it was obtained by misrepresentation
- False pretenses – Similar, but misrepresentation in which one obtains TITLE to the
property
o False pretenses made with intent to cheat and defraud another and the title to the
property was given in reliance upon or under inducement by the false pretenses
- Embezzlement – Misappropriation of property already in possession of
o Does not have to be permanent
In general:
- Credit is not money
- Wages are not property until delivererd – (Mitchneck)
- Money comes with TITLE in a sense
- Larceny
o Can be with lost property if reasonably could find the owner
o Abandoned property not subject to larceny
o Borrowing property for unreasonable period of time counts
o Modern statute counts joy-riding
- Robbery
o Need force or fear to take property
o Force
Intended to overpower the victim and prevent resistance
Must be greater than that required just to take (Lear)
MPC – Inflicting or putting in fear of threatening serious bodily injury
Most states require imminence between force and taking
Threats of future harm are generally extortion
- Burglary
o The intended felony inside must be greater than a trespass (Colvin)
Extortion
- Common law – Corrupt collection of fee by an officer acting under color of official
position
- Modern - Obtaining property from another by means of oral or written threats
o Not required to create the initial fear, can use an existing threat
o Does not have to be a threat of immediate harm
o Can be the use of a lawful instrument (DioGuardi – Picketing)
- Split
o Some states – as soon as threat is made with intent to receive something of value
= extortion
o Other states – this is attempted extortion
- Notes
o Does not require the item to be taken from the person’s presence
o Not essential for defendant to create the fear, as long as he succeeds in persuading
him that he possesses the power to remove or continue its cause, and instills a new
fear by threatening to misuse that power as a device to exact tribute
o Threats may be innuendo or suggestions, and do not have to be anything illegal
Rape/Sex Offenses
- Sodomy
o Beastiality
o Buggery
o Cunnilingus
o Fellatio
o OK DEFINITION – Horrible and detestible crime against nature
- Beastiality
o With an animal by a human being
- Buggery
o Man against a woman or man in anal sex
- Cunnilingus/Fellatio
o Oral stimulation of female/male sex organ
- Definitions – RAPE
o Common Law
Unlawful
Carnal knowledge of a woman
By a man
Not her husband
Without her effective consent
o Modern
Broad definition of intercourse
1983 – OK eliminated spousal exception that required victim to be legally
separated or divorced
Some states still require that the wife be legally separated (instituted
divorce proceedings or does not live with him)
Forcible
Some states make this distinguish
Common law – grievous bodily injury or death
o To prove forcible rape had to use resistance
Actus reus is penetration (however slight)
o “Resistance” tests
Utmost resistance
Bruising, injuries, torn clothing
Brown v. State – Need force in the most vehement exercise of
every physical power
Earnest “Reasonable” Resistance – Common law required resistance
If defendant placed victim in fear, victim does not have to
physically manifest non-consent and risk worse injuries
Factors can be
o Size
o Weight
o Age
- Consent
o Statuatory Rape – Minors are legally incapable of consenting
o Intoxication or incapacitated – Lack capacity to give consent
o Young or retarded – Lack of effective consent
o Consent obtained by threat is ineffective
o Giving in or acquiescence is not consent
o Fraud
Doctor fraud – As to whether the act constitutes sexual intercourse
Whether or not they are your spouse fraud
o Proof – Circumstances and actions after the event
Spitting in face is pretty obviously a manifestation of non-consent (Smith)
Notes from Makeup Lecture
Speaker 1 – Governor Henry
- Public service lecture
- Rent you pay for space you occupy
Speaker 2 – President Boren
- Rendition: Kidnapping, taken by agents, placed in prison
Speaker 3 – Greg Craig
- Briefing of techniques CIA was using
- White house counsel
o Old counsel (John Dean was arrested)
o Represent White House, not President
o “POTUS” – President of the United States
o Oath of Office Bungle
Obama did not speak words perfectly
Re-did oath in front of Chief Justice
o Jobs of white house counsel
Selection of judges/justices
Work with senate
o Powers of President
Pardoning power
Looks soft on crime
Can appear corrupt
Article 2 Section 2 – grant reprieves and pardons to individuals
who commit crimes against the U.S.
Obama granted 9
Argued for pardon system outside justice department
Why they are important
o People convicted of minor crimes who are going to be
deported
Not illegal aliens
Accused of misleading immigration authorities
Example: Marlin Powell, Came over at age 13,
busted at 15 for fake ID, they thought he was 21
Pardoned by Governor of New York
o People sentences to unjustly heavy terms for using crack
cocaine as opposed to powder cocaine
Fair sentencing of 2010
Equality of sentencing, but not retroactive
Power during times of public anxiety
Argued for comprehensive and undefined powers
Temptation for president to take immediate action
o Resulted in increased legislative and judicial scrutiny
- 3 areas of positive progress
o Way African Americans treated is better (more work needs to be done)
o Way women are treated (ongoing)
o Way treating gay citizens (increased tolerance)