Criminal Law by smartax

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Law School Outline - Criminal Law

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									Criminal Law Outline


General A. Four Element: All crimes have several basic elements: 1. 2. 3. 4. a voluntary act (actus reus) a culpable intent (mens reus) concurrence between the mens rea and the actus reus causation of the harm


Actus Reus A. Significant Concept: The D. must have committed a voluntary act or actu reus. Look for an actus reus problem in the following situations: 1. D has not committed physical acts but has guilty thoughts, words, states of possession or status. 2. D does an involuntart act 3. D has an ommision or failure to act B. Thoughts, words, or possession and status: Mere thoughts are never punishable as crimes. 1. Possession as a criminal act: However, mere possession of an object may sometimes constitute the neccessary criminal act: EX: Possession of narcotics frequently constitutes a crime in itself. C. An act must be voluntary: An act cannot satisfy the actus reus requirement unless it is voluntary. 1. Hypnosis: Court are split about whether acts performed under hypnosis are sufficiently involuntary that they do not give rise to liability. The MPC treats it as being involuntary. 2. Self-induced state: In all cases involving involuntary acts, D's earlier voluntary act may deprive D of the involuntary defense. D. Omissions: The actus reus requirement means that in most situations, there is no criminal liability for an omission to act (as distinguished from an affirmitive act) 1. Existence of legal duty: There are some special circumstances where courts deem D to have a special legal duty to act. Where this occurs, D's omission may be punishable under a statue that speaks in terms of positive acts. a. D caused the danger: If the danger was caused (even innocently) by D, then D has an affirmative duty to save V. b. Undertaking: D may come under a duty to render assistance if he undertakes to give assistance. This is especially true where D leaves V worse off than he was before, or effectively dissuades other rescuers who believe that D is taking care of the problem.


Mens Rea A. Meaning: The term "mens rea" symbolizes the requirement that ther be a "culpable state of mind" B. General V Specific intent: Ct's traditionally classify the mens rea requirement of various crimes into three groups: 1) crimes requiring genereal intent; 2) crimes requiring specific intent; 3) crimes requiring merely recklessness or negligence. (Strict liability crimes form a fourth category, as to which there is no culpable state required at all.) 1. General Intent: A crime requiring merely general inten is a crime for which it must merely be shown that D desired to commit the act which served as the actus reus. EXAMPLE: Battery is usually a general intent crime. The actus reus is a physical injury to or offensive touching of another. So long as D intends to touch another in an offensive way he has the general intent for battery. Intent to harm is not necc. 2. Specific Intent: Where a crime requires specific intent or special intent, this means that D, in addition to desiring to bring about the actus reus, must have desired to do something further. EXAMPLE: For common-law burglary, it must be shown that D not only intended to break and enter the dwelling of another, but also intended to commit a felony in the dwelling. This specific intent is an intent other than the one associated with the actus reus (the breaking and entering)


Utilitarian Vs Retributive Theory A. Utilitarian Theory: The greatest good for the greatest number. This theory looks forward to the expected consequences of punishment and args. that punishment is justifiable to the extent that it will reduce future crime. 1. Deterence: Punishmnent is justifiable to the extent that it can be expected to deter the D and others from commiting future crimes. Or withholding punishment is justifiable if this incentive/reward will encourage the D and others to avoid future crim.behavior. This theory assumes that individuals think about the potential consequences before they act. 2. Rehabilitation: Emphasize on rehabilitation as a means of reducing future crime. This is based on the assumption that people who break the law can be reformed through treatment, education, job training, etc. B. Retributive Theory: This theory looks at the offender's conduct and argues that punishment is justifiable b/c the individual has broken the law, regardless of if the punishment or witholding punishment will reduce the future crime. Looks at the D's moral culpability. 1. Retributive's do not focus on deterence or rehabilitation.


Homicide A. Corpus Delecti Rule: 2 Elements 1. Death 2. The death occuring through the criminal agency of another.

a. If there is any confession or admission by the accused, there has to be evidence of the above two elements before it's admissiable in court. Example: Hicks V Sheriff: Guy makes confession in jail to cell mate but there was no evidence of any criminal agency used for the V's death, therefore the confession couldn't be admitted. b. Circumstantial Evidence can be used to establish the "death" of the V EXAMPLE: Warmke V Commonwealth: Body of her baby was never found but there was circumstantial evidence to prove the death occured. B. Common Law Homicide Classifications: 1. Common law murder: "malice aforethought": The intentional doing of any wrongful act in such a manner and under such circumstances as that the death of a human being may result therefrom is malice. a. Must have one of the following: 1. Intent to Kill, OR 2. Intent to do great bodily harm, OR 3. Intentional (i.e. Knowing) creation or conscious disregard that death or great bodily harm will occur (a.k.a. Depraved heart murder.) Example: Bank V State: D used a pistol to fire at train w/ out any reason to do so and killed someone on the train. Ct ruled that his behavior was enough to satisfy Malice A. & sentenced him to death i. Depraved Heart murder: recklessly engaging in conduct which manifests an extreme indifference to human life and created a grave risk of death to a person other than the D. 4. During the commission or attempt to commit any felony (felony murder) i. In MI only 5 inherently dangerous felonies apply: arson, burglary, kidnapping, robbery,& rape (abkr*2) 2. Manslaughter a. Voluntary (intentional) 1. Heat of Passion (Must be the result of #2) 2. Legally adequate provocation i. Test for provocation is objective: would a normal man be set off by the provocation? ii. Word usually aren't enough except sufficient words of info: Example: State V Grugin "I just ravished your young virgin daughter" = suffient provocation 3. No reas cooling off period i. Can't leave to go get weapon, etc. 4. Causation i. The murder in the heat of passion is the result of the provocation. b. Involuntary 1. Gross negligence/ criminal or culpable negligence OR i. Def. of Criminal neg: Any conduct, except conduct

intentionally harmful or recklessly disregardful of an interest of others, which falls below the standard established by law for the protection of others against unreas risk of harm. ii. elements of crim neg: 1. High degree of risk 2. D aware of risk 3. no justification, excuse, or provocation iii. 4 part way to look at Crim. Neg. 1. High degree of risk 2. Reas. forseeable risk of death or G.B.H. 3. D's conduct is unreasonable 4. D's conduct is a substantial departure from what an ordinary person would act EXAMPLE: State V Hardy: guy points gun at lady to scare her and thinks gun doesn't work but it shoots and kills her. Involuntary mans. Social policy of this case: Courts don't want people playing pranks with guns. 2. During the commission or attempt to commit misdemeanor c. Voluntary Intoxication 1. Two different cases, two different outcomes: i. Mclaughlin: (1928): D was driving down street and hit some people who were walking in street. It was speculated that he was drunk, but he was not driving recklessly like in Edwards. Ct sent case to be tried for Involuntary mans. ii. Edwards: (1957): Voluntarily drove home drunk on a busy highway w/ a disregard to others. Ct charged him w/ 2nd D murder 2. Distinction between the cases: i. time, broader social policy, speed of car, and state

C. Model Penal Code Homicide: Criminal Homicide 210.1 Def of Crim Homicide 210.1: 1) A person is guilty of crim. homicide if he purposefully, knowingly, recklessly, or negligently causes death of another human being. 2) Criminal homicide is murder, manslaughter, or negligent homicide. 1. Murder, MPC 210.2 a. Purposely: D's conscious object to cause V's death; OR b. Knowingly: D's aware that it is practically certain that his conduct will cause death; OR c. Recklessly: D consciously diregards a substantial and unjustifiable risk that death will result from D's conduct, under circumstances manifesting extreme indifference to human life. d. felony murder rule not adopted per se, but recklessly under circumstances manifesting extreme indifference to human life. Rebuttably presumed for enumerated felonies (BARRKS + felonious escape) where death occurs. 2. Manslaughter, MPC 210.3 a. Recklessly: Conscious disregard of substantial & unjustifiable risk

that death will result from D's conduct; disregard of risk involves gross deviation from a law-abiding person in D's situation; OR b. Homicide occured as result of extreme mental or emotional disturbance (EMED) for which there is a reas explanation: 1. Reasonableness of explanation determined from viewpoint of person in D's situation (Subjective/objective/subjective) i. Note: defense not based on reasonable explanation for homicide, rather on reasonableness of expanation of EMED. 3. Negligent Homicide, MPC 210.4 a. Negligently: D should be aware that his conduct will result in a substantial and unjustifiable risk of death; conduct involves a gross deviation from standard of care of a reas person in the actor's situation.

D. Modern Classifications/Statutory Approach: (tracks Common law not MPC) 1. 1st Degree Murder a. Aggravated i. Willful + ii. Deliberate + iii. Premediatated Example: People V. Perez: Guy the V's husband went to school w/ parked down the street broke into house &stabbed V numerous times, even post-mortem. Ct ruled 1st D murder b/c the D was willful, deliberate & premeditated b. Felony-Murder i. Majority View: During the commission or attempt to commit enumerated felonies (BARRKS) ii. Minority View: Prosecution must additionally prove "malice" 2. 2nd Degree Murder a. Intent to Kill OR b. Intent to do great bodily harm, OR c. Intentional (i.e. Knowing) creation, OR conscious disregard of a very high risk that death OR GBH will occur (aka; Depraved Heart Murder), OR d. Felony Murder: (States vary: inherently dangerous felonies; unspecified felonies; not necognized) 3. Manslaugter a. Voluntary i. See common law ( heat of passion, provocation, etc.) modern's sufficiency of provocation & cooling off period is broader than common law though. b. Involuntary i. Gross Negligence (aka Criminal or Culpable Negligence) OR ii. During commission or attempt to commit misdemeanor



A. Common Law Rape 1. Sexual Intercourse 2. W/ a female a. Can't be his wife 3. By force 4. Against her will 5. Mens rea 6. Corroboration a. Originally, Corroboration wasn't required, but in the 50's/60's that requirement changed 7. Cross Examination of V

B. MTS Case (New Jersey) 1. Sexual Penetration 2. W/ Victim 3. No Resistance required 4. Permission of Victim 5. Mens rea 6. No corroboration 7. Rape Shield

C. Berkowitz (Pennsylvania) 1. Sexual Intercours 2 Person (not spouse) 3. Force (o/s) a. Obj: degree of force that would prevent resistance by a reas. person b. Subj: in the situation of that person 4. No Consent 5. Mens rea 6. No corroboration 7 Rape shield

8. PA's rule is closer to common law b/c of their interpretation of threat a. Threat: both subjective and objective

D. Criminal Sexual Conduct 1 VII. Other Crimes Against the Person

A. Battery (Common Law): Elements of 1. Harmful touch OR a. actual touch required (unlike tort law) 2. Offensive Touch AND a. Injury not required b. Obj Standard: Judged on how a reas person would view the touch 3. Intent to cause harmful or offensive contact OR 4. Criminal Negligence a. Creating a high degree of risk that's reasonably forseeable -- Rationale: To protect bodily security and breaches of peace.

B. Assault (Common Law): 2 types 1. Attempted Battery a. Actus Reus: You swing a baseball bat at someone b. Mens Rea: Intent to commit battery -- In Crim Law, V doesn't have to know that there's an attempted battery 2. Apprehension a. Actus Reus: trying to cause V to think a battery is about to happen b. Mens Rea: To make V think that a battery is imminent.

C. Domestic Violence: 1. What's the crime? a. Assault or assault and battery 2. To who? a. Spouse/former spouse b. Child in common c. Resident/former resident d. Dating relationship/former dating relationship

E. Kidnapping 1. Forcible Movement OR Secret Confinement a. Under common law, V has to be moved out of the country. 2. Against V's will

3. W/out authority -- Example: Someone is isolated from places where they could get help. --Non-Example: If movement is insignificant to crime: V is being raped in her own home and V is moved to upstairs bedroom-not kidnapping.

VIII. Theft Crimes and Other Crimes Against Property A. Burglary 1. Common Law Elements of Burglary: a. Breaking: physical force, however slight to gain entry b. Entering: Intrusion of any part of the body through door, window, etc. c. Dwelling of another: Human habitation w/out authority 1. Unfinished property (house): not dwelling 2. Property that is not fit or ready: not dwelling 3. Lake house for a week a year: yes dwelling 4. The test is occupancy NOT ownership d. At night: after dark, before dusk 1. This element has been abolished in most statues. e. W/ intent to commit a felony . Arson 1. Common Law Arson: a. Malicious: Either intent to burn; OR a reckless disregard of a very high risk b. Burning: any part of structure consumed w/ flames c. Of dwelling: structure used for a human dwelling d. Of another: someone else's 2. Michigan's Arson Statues: a. Arson/Dwelling 1. Willfully or maliciously 2. Burns 3. Occupied or unoccupied 4. Dwelling or 5. Building on cartilege b. Arson/Building 1. Willfully or maliciously 2. Burns 3. W/ intent to commit felony 4. Not dwelling C. Common Law Larceny 1. Trespassory a. Got possession of the property wrongfully or illegally Example: Wilkinson V. State: D gets his boss to wrongfully claim a cow, saying that it was his own from someone who was just taking care of the cow until the owner was found. Since the guy was just caring for

the cow, there was no passing of the title. Ct said that under common law and statue the D is guilty of larceny 2. Taking a. Getting Physical control over the item b. Can be done by an agent 3. Carrying away a. Any movement of the item 4. Personal Property a. Moveable property that was not excluded under the common law as being subject to larceny; for example, land, ideas, doc., and services was excluded. b. Hypo: tree on property is cut down and taken--not larceny, BUT, if D left after the tree was cut down & then came back for it--yes larceny 5. Of Another a. Hypo: If your car is getting fixed and you break into the shop and take back the car, you're guilty of larceny b/c mechanic has possessory right Example: State V Stahl: D took money out of drop box at store where he worked. The issue was whether the D was entrusted to the money. If he was entrusted to the money, the crime would have been embezzlement, but the facts found D not to be entrusted, therefore, the ct ruled he was guilty of larceny. 6. With Intent a. To permanently deprive the owner of their property; OR to make it unlikely tha the owners would get their property back. --------------------------------------------------------------------------------------------------------7. Forms of Trespassory Taking: a. There was a trespass in the taking in order to obtain possession b. There was a fraud in the taking, D secures possession by fraud and gets possession c. There was a fraud in the taking, D secures the property by fraud and gets title 8. Custody V Possession a. Custody: D has the right of physical control of the property, but his his right to use it is restricted by the person w/ constructive possession (larceny) i. Determined by the degree of authority Example: The use of silverware at dinner party b. Possession: D has the control to use the property in a reasonably unrestricted manner (embezzlement) i. Determined by whether property has been entrusted to D by the owner Example: Given a laptop by the school to use as you wish.

Example: Morgan V. Commonwealth: The D was given a safe and Combo to use in the business and was the only one entrusted to it. Ct ruled that D had more that mere custody and had actual possession of the article, therefore was guilty of embezzlement. Example: "Cooper V. Commonwealth": D goes to bank for change but but was given 20 - $5 coins instead of 20 nickels. Ct ruled that there was no felonious intent at the time of the taking. "When property comes lawfully into the possession of a person, a subsequent appropriation of it is not larceny, unless the intent to appropriate it exisited in the mind of the taker at the time it came into his hands.

D. Embezzlement 1. Fraudulent 2. Conversion of a. Interference w/ one's property rights (not permenently depriving) 3. Property 4. Of another 5. By one who is already in lawful possession of it a. See def. of possession above --------------------------------------------------------------------------------------------------------------6. Differences in Larceny and Embezzlement: a. Embezzlement differs from larceny in that it is the wrongful appropriation or conversion of property where the original taking was lawful, or w/ consent of the owner.

E. False Pretentses 1. False Representation a. Orally or in writing 2. Of a materially present or past fact 3. Causes the V 4. To pass title to a. Not possession 5. His property to D ----------------------------------------------------------------------------------------------------------6. D knows representation to be false and intends thereby to defraud a. Not enough if D thinks it's false but isn't 7. The distinction between the crimes of obtaining property by false pretenses & that of larceny by fraud seems to rests in the intention with which the owner parts with possession.

F. Consolidated Theft 1. MPC Sec 223.1 Consolidation of Theft Offenses a. Theft in this article constitues a single offense b. Supported by evidence that it was committed in any manner that would be theft under this article c. Not withstanding the specifications of a different manner in the indictment or info. Example: State V. Saylor (KS SC) Guy puts powertools in toy box box and tries to pay for it. "Consolidation should eliminate the procedural difficulties that sometimes result from the fact that boundaries between the traditional theft crimes are obscure and the D who is charged w/ one crime can't be convicted by proving another.

G. Robbery (Different from Larceny) 1. Trespassory 2. Taking and Carrying away 3. Personal property 4. Of another 5. W/ intent to permanently deprive AND 6. Taken from person or person's presence 7. By means of force or fear of bodily injury a. Force neccessary to overcome V's resistance & take his property Hypo: Guy knocks someone out (w/out intent to steal) and then sees rolex and takes it. Despite apprehension at common law, this is robbery


Neccessity to Act/Failure to Act A. Neccessity of an Act: 1. The actus reus is: a. The voluntary act: a caution willed exertion b. That causes c. Social harm 2. MPC a. A person is not quilty of an offense unless his liability is based on conduct that includes a voluntary act or the omission to perform an act of which he is physically capable 3. What constitutes an act? a. A person is not quilty of a criminal offense unless conduct, which includes a voluntary act, coupled w/ a culpable state of mind is the actual and proximate cause of the social harm.

4. Connection between Act + Prohibited harm = prohibited cause a. Factual cause = cause in fact Example: People V Decina: D drove car even though he was prone to seizures and killed some people: D driving car was factual cause B. Failure to Act 1. Under what circumstances will a person's failure to act result in criminal liability? a. If you cause the harm you are obligated to act. Example: If you pushed a kid in the pool intentionally or accidentally you are legally obligated to act. Example: If you say you're going to save someone from drowning, you are legally obligated to act, especially if your proclaimed help prevents others from helping. 2. Distinction between moral and legal obligation: a. Moral obligation: Is too vague, you don't know where it starts and where it stops. b. Individualistic: Not evenyone has the same morals c. Line Drawing: Who would be legally obligated 3. Duty to Act a. "Moreland V. State": Is the owner of a car, being drivn by chauffeur liable for the criminally negligent acts of his chauffeur committed in his presence? YES b. Taxi driver: If D tells taxi driver to step on it and he kills V, D is guilty of manslaughter c. "Rex V. Huggins": Is the warden of a prison criminally reponsible for the murder of a prisoner committed by his deputy? NO, if he didn't know about the mistreatment. 4. MPC/ Duty to Act a. (3) Liability for the commission of an offense may not be based on an ommission unaccompanied by action, unless... 1. The omission is expressly made sufficient by the law defining the offenses; or 2. A duty to perform the omitted act is otherwise imposed by law. 5. Summary of duty of Act: a. Relationship b. Statue c. Contract d. Voluntary assumption of care e. Creation of peril f. Duty to control conduct of others g. Duty of landowner to invitees onto land Hypo: D accidentally starts fire but lets it burn to collect ins: guilty of arson Hypo: At common law: If parent doesn't get medical help for child b/c of religious belief= parent is criminally liable

X. Inchoate Crimes: (attempt, impossibility, abandonment, solicitation, and conspiracy) A. Attempt 2. In order to be guilty of attempt, D must commit a sufficient overt act beyond mere preparation. a. The D must also have specific intent to commit the object offense. Example: Moffett V State: D planned a murder to look like suicide; made list of stuff to bring, wrote suicide note, went to V's house, & made her start writing the suicide not before V escaped. Ct ruled that D took sufficient steps toward the object offense. 3. New York Penal Law Sect 2 (used in Rizzo Case): An act done w/ intent to commit crime, and intending but failing to effect its commission, is an attempt to commit the crime. Example: People V Rizzo: D and friends went looking for a man that was suppose to have a bank deposit. But the D's couldn't find the man, so the ct ruled that the D's had not taken a sufficient overt act towards the commission of the crime. 4. MPC (more utilitarian) Sect. 5.01 a. Purposely engaging in conduct what would constitute the crime. b. Does or omits to do anything w/ the purpose of causing... c. Purposely does or omits... which is a substantial step in the course of conduct. i. MPC is more strict than NY penal law above and easier to convict. B. Impossibility 1. Factual Possibilty a. D's intended goal is a crime, but isn't completed b/c of an attendant circustance beyond D's control unknown to him. b. Defense: At common law, this is not a defense. i. You manifested you dangerousness & criminality, so you're guilty. Hypo: Attempting to pickpocket an empty pocket. Example: "State V. Mitchell" Shooting into an empty bed, still guilty. 2. Inherent Factual Impossibility a. Method used to accomplish the crime was one that a reas person would view as completely inappropriate to the objective sought. b. Defense: May be a defense. c. Utilitarian View: We need to deter this guy b/c next time he might figure out how to go through w/ the crime. d. Retributive: He was morally culpable so he should be punished. Hypo: Trying to kill someone w/ a water gun. 3. Legal Impossibility a. The law does not proscribe the goal that the person sought to achieve.

b. Defense: Yes, a defense. c. Utilitarian View: It's a lawful act so you don't need to deter the D d. Retributive: This is good b/c the act D did wasn't a crime. Hypo: Violating a criminal statue that has been repealed. Example: Booth V State: A thief w/ a stolen coat was caught by police and had the theif call D to set him up b/c the they had found that the theif planned to sell coat to D. D fell for sting and was charged w/ intent to receive stolen prop, but ct dismissed case b/c the coat was no longer stolen propert since the police confiscated it 4. Hybrid Legal Impossibility a. Goal is illegal, but impossible due to factual mistake regarding the legal status of an attendant circumstance, which is an element of the offense. b. Defense: Trend, no defense but at common law, a defense Hypo: a sting operation where D is set up by police to buy already confiscated drugs. 5. 3 steps in impossiblility a. Brightline rule b. Be able to analogize and distinguish c. Know the policy behind Example: State V. Mitchell: D shoots in the bed he thinks V is in but V slept in another bed. Guilty of attempted murder, but the outcome could change depending on if cts use brightline rule or go by social policy. Brightline: He's not guilty b/c you can't kill someone who's not present Social Policy: We don't want people trying to kill others and he's dangerous and should be punished 6. Policy questions in impossibility a. Did D intend to do something against the law b. Did D commit sufficient overt acts c. Is there any doubt D is dangerous d. Did the mistake make make D any less dangerous e. Social Policy, what would be the result

C. Abandonment 1. MPC Definition: a. When the actor's conduct would otherwise constitue an attempt... it is an affirmative defense that he abandoned his effort to commit the crime...under circumstances manifesting a complete and volun. renunciation of his criminal purpose. b. Downside to MPC: everyone will say I was just buying a qt of oil; you'll run into the floodgate issue. 2. Common law: recognizes voluntary abandonment as a defense

3. Policy Standpoint: Good social policy b/c it gives people a chance to turn back before they commit the crime. 4. Utilitarian: We need to give people a chance to turn back 5. Retributive: Pointing a gun at someone still makes him morally culpable/ blameworthy, blameworthiness inclines along the steps og the crime Example: Stewart V. State: Guy was robbing gas station when police pulled up and D then abandoned crime and pretended to buy a qt of oil. This wasn't a voluntary abandonment of his attempt.

D. Solicitation 1. Mens rea: Specific intent that the crime be commited by another person 2. Actus reus: When a person invites, requests, commands, hires or encourages another to engage in any conduct constituting a felony, or a misdemeanor relating to obstruction of justice or breach of peace. 3. A solicitation doen't have to be accepted for the D to be charged 4. Utilitarian: It's bad to have someone ask another to commit a crime 5. D is still morally culpable even though he didn't directly commit the crime Hypo: A asks C to kill B = 1) A and C are both guilty of murder; if C dies. 2) C tries to kill B but fails; both guilty of attempted murder. 3) C agrees to do so; A & C are guilty of conspiracy and A is guilty of solicitation 4) C rejects A's request; C isn't guilty, but A is still guilty of solicitation. Hypo: D asks X to pick Y's pocket but knows Y doesn't have any money X is guilty of attempted larceny but could argue factual impossibility but will not work for offense = guilty D is not guilty b/c he knew Y didn't have any money 6. MPC allows for an attempted solicitation: Example: a written solicitation that never gets delivered

E. Conspiracy: 1. Common Law: An agreement between 2 or more criminal minds a. Doesn't have to be an expressed agreement b. All parties don't have to know every detail c. May be proved directly or through circumstantial circumstances 2. MPC: Allows a unilateral agreement: it doesn't have to be 2 or more crimianal minds. Hypo: B solicits H who is an undercover cop to kill wife = B is quilty of conspiracy under MPC but not common law 3. Actus reus: An agreement

4. Mens Reus: Intent (specific) that the object of their agreement be achieved. 5. Rules: a. The conspiracy is not the people but the agreement b. A lot of statues require an overt act in furtherance of consp. 1. If act is required, any act is sufficient and it doesn't have to be a criminal act. 6. Social Policy: We don't want groups of people getting together to further crimes, allows police intevention sooner, and larger groups can do more damage. 7. Pinkerton Rule: Co-conspirators are guilty for criminal acts of other conspirators as long as it is a reas forseeable outcome of the furtherance of the conspiracy a. MPC rejects the Pinkerton rule. b. Utilitarian: Deters people from joining groups that plot crimes c. Retributive: MPC says that you should only be responsible for acts that you are morally culpable of. 8. Conspiracy Problem: Brown secretly solicitates 6 people to help him obtain 6 different fraudulent loans. Each dealt only w/ Brown and didn't know about the others. a. Each loan was a separate conspiracy b. Distinguishable from Rosado (one big conspiracy) b/c there the D's shared a common goal that depended on all of their participation of the criminal activity. 9. Kinds of conspiracies: a. Wheel/ Hub Conspiracy: Separate conspiracies Example: D1 manufactures fake money & gives it to D2 D2 gives money to D31 = not chain b/c D1 doesn't care about what happens w/ D31, not ongoing bus. Sep. conspiracies b. Wheel/ Rim Conspiracy: One big conspiracy Example: Dr solicits people to find others for abortions. Since they all have a common goal, it is a wheel/ rim conspiracy c. Chain Conspiracy: Much easier to prove than the wheel. Example: Owner of liquor agency sells to D1 who sells to D2. The outcome is dependant on each conspirator working towards the sucess of the outcome 10. Why it matters the # of conspicacies: a. # of conspiracies for prosecutor to prove b. Liability of co-conspirator c. Hearsay implication: a statement made outside of ct room is not admissible, except statements by D to police officer-If one conspirator makes admission to policy, then that admission can be used against the rest of the conspirators d. Joint trial e. Overt act: if one conspirator makes a move, then they all are accountable for it f. Venue: If broad conspiracy, the prosecutor has the right to chose the

jurisdiction in which they would be best favored in 11. Conspiracy Factors: Issues that determine # of conspiracies a. Nature of criminal activity b. # of D's and overlap in personell c. size of business d. Extent of contact between the parties e. # of overt acts in common f. Extent that parties share a common objective 12. Withdrawl: a. Common law: only has to communicate the withdrawl to another conspirator before the crime takes place b. The withdrawl is a defense for the crime but not for the conspiracy Example: State V Peterson: D conspired w/ another to have him burn her house. D later decided against the arson and tried to convince the other conspirator to abandon the idea but he didn't listen. TC convicted her of 2nd Arson but SC reversed b/c D had properly conveyed her w/drawl.

XI. Liability Issues: A. Accomplice Liability 1. Common Law: a. Principal in the 1st 1. W/ the mens rea required for the act 2. Physically commits the acts or 3. Commits the act through an innocent instrumentality i. If D has other person commit crime b/c of 1. threats of harm 2. infancy 3. insanity Example: someone makes innocent person rape someone else: innocent instrumentality 4. Same thing as the perpetrator today b. Principal in the 2nd 1. Intentionally assists the principal in the 1st w/ commission of offense 2. While in that person's actual or constructive presence Example: Principal in 2nd could be look out for crime, but could be a block away when the crime actually happens Test: Doesn't have to be in close proximity of crime scene just close enough to assist if needed c. Accessory before the fact 1. Intentionally assists the principal in the 1st 2. Not present during the commision of the offense 3. The difference between 2nd and before the fact is before the fact isn't actually or const. present during the commision

of the crime. d. Accessory after the fact 1. Crime commited be another 2. D knew of its commission 3. Gave aid personally 4. For the purpose of hindering D's apprehension, conviction or punishment 5. Known as obstruction of justice today 2. Today: a, b, & c are combined and d is obstruction of justice Hypo: 3 boys goes to house to steal beer, 1 girl stays in car & doesn't encourage or help: Presence alone isn't enough to convict for accomplice liability Presence & flight isn't enough '' '' '' Presence & undisclosed intent to help Presence & diverted attention of robbery = principal in 2nd 3. Actus Reus: a. Physical Conduct b. Psychological encouragement c. Omission to do an act when obligated to do so Example: a mother watches someone beat her kid Hypo: B opens window to help A b&e into the house but A goes into the front door. Common law: B is guilty of attempt to aid and abet MPC: B is guilty of aid and abet

4. Mens Rea: a. Intent to assist the primary party b. Intent that the primary party commit the offense charged 5. Procedural Issues (common law) a. Jurisdiction: You will be tried where crime is committed/ At common law: 1st and 2nd are charged where crime is committed & 3rd and after the fact is tried where accessory was committed b. Pleading: Whether you're charged as accessory or principal At common law: If pros. makes wrong charge D is not guilty. This is not true now. c. Trials: If principal isn't tried, accessory isn't tried d. Inconsistent Verdicts: Accomplice can't be charged w/ greater offense than the principal 6. Limits to Liability a. Legislative Exemption: V can't be found as an accomplice if statue is designed to protect that class of people: statutory rape; 14 yr old girl that initiates sex w/ a 30 yr old man, 14 yr old is not accomplice b. Abandonment: the D must first repudiate prior aid & do all that is possible to prevent act from happening, before act is accomplished 7. Extent of Liability a. A person or facilitating the commission of a crime may be held criminally liable not only for that crime, but for any other offense that was a natural and probable consequence of the crime aided and abetted. i. A lot like Pinkerton.

8. Accomplice/ Conspiratorial Liability a. Conspiratorial (Pinkerton) 1. Crime is in the furtherance of the conspiracy 2. Reas forseeable or natural consequence of the conspiracy 3. Actus Reus: The agreement b. Accomplice 1. Natural and probable consequence of the crime aided and abeited 2. Actus Reus: you have to aid someone. c. An accomplice is usually a conspirator but a conspirator usually isn't and accomplice. 9. Parties to crime Hypo: a. D1 rapes barmaid D1 is guilty of rape 1st Degree b. D2 holds barmaids arms D2 is guilty of rape 1st Degree c. D3 is present and yells, "Do it, do it!" D3 is guilty of rape 2nd Degree d. D4 is Customer who is present, he likes it but says and does nothing D4 is guilty of nothing (no actus reus) e. D5 is employee who is to keep order under statue but does nothing D5 is guilty of rape 2nd Degree f. D6 is drunk who is outside and tells police all is quiet D6 not guilty b/c he had no mens rea g. D7 is owner of bar who is at home D7 is not guilty b/c he didn't know of rape h. D8 after commission and drives D1 to Canada D8 is guilty or rape after the fact ------------------------------------------------------------------------------------------------------------i. Now the different catagories are abrogated: 1. Principle is principle and accomplice is aid and abeit

B. Mens Rea 1. An act does not make a person legally liable unless the mind is legally blameworthy. C. Strict Liability 1. Imposes punishment on statues regardless of mens rea: parking statues, offenses that involve acts that's risky, promote social order, & drug offenses 2. Questions to consider: a. Is the particular offense under consideration a "civil offense" or a true crime? b. If a civil offense has the working of the statue added a mens rea requirement? c. If a true crime, has the working of the statue eliminated the mens rea requirement 3. Utilitarian: you want social order and you want to deter people from not wearing seat belt and not speeding, etc

4. Guideposts: a. Mala in se/ Mala prohibita 1. Mala in se- crimes b/c the act is bad 2. Mala prohibita- acts made criminal by statue b. Statutory language- does bit include mens rea language? c. Historic treatment- of activity in question d. Stigma and punishment- is it severe and does it include jail time? e. Legislative history/ Legislative intent- if there's a morally wrong act, adopted as statue w/ out mens rea, mens rea will be assumed. f. Structure of the statutory scheme g. What verbs does the adverb modify? You might have.."Intentionally & then fails to...." h. The rights to the individual is weighed to social order and sometimes rights are waived. Example: Commonwealth V. Olshefski- Driver's truck weighed over limit, it doesn't matter that he thought his weight was w/in limit--he's still guilty even with out mens rea. "The legislature may punish any act which in its judgement requires punishment, provided it violates no constitutional restriction, and its enactments must be enforced by the courts. Example: Staples V U.S.- Modified machine gun case. Ct ruled since there's severe punish. which always hasn't been the case, mens rea is required, when comparing drug charge and ct said that's more dangerous. Since ct quoted "Morissette case" they probably feel pretty stongly about enforcing strict liability. i. TEST 1. Nature of iten regulated 2. Nature of the statue Example: Commonwealth V. Koczwara- Bar owner/ has employee that unbeknown to him, sells liquor to a minor. Ct took off the jail sentence that was originally imposed. They reasoned that the D shouldn't have to go to jail for something he didn't have the mens rea for, said strict liability is okay just not too severe. D. Transferred Intent 1. One who intends to cause a particular harm to one individual, and instead causes precisely the harm to another person, is as culpable, and society is harmed as much as if the D had accomplished what he had initially intended. Hypo: Intent to hit A, but you hit B instead, your intent will transfer to B. Hypo: Intent to hit A w/ a rock but hits window instead and breaks it instead, not transfered intent = you can't transfer to a different kind of mens rea.

E. Motive

1. That something in the mind, or that condition of the mind, which incites to the action.

F. Concurrence Doctrine 1. There is concurrence when the mental state actuates physical conduct. Example: Commonwealth V. Cali- If a man starts an accidental fire, what is his obligation in respect to it? He must do what's reasonable to stop the fire; throw water on it, call for help. If after the fire starts accidentally, the man doesn't use reasonable effort to stop it and lets it burn to fraud the ins. co then he is guilty of arson.


Specific Defenses A. Insanity Defense 1. Bases on social policy concerns 2. Utilitarian: You can't deter someone w/out a reas mind. Incapacitation is not one of their motivations. 3. Retributive: If someone's not culpable they shouldn't be punished. People act under their free will, but if they're insane, they don't have the neccessary culpability. 4. Before you think about what test applies, you need think about 2 things that cts and legislatures look at to decide if and which one applies: a. Mental disease: capable of improving or deteriorating i. Three questions to ask to find out if mental disease should be recognized: 1. Is it going to open the floodgates 2. Is it easily faked 3. To what extent does it effect the D's behavior b. Mental defect: Incapable of changing; congenital, result of injury 5. Insanity, if proven is a complete defense to the crime and will find a verdict of not guilty b/c of insanity. a. The insand D is held as long as it takes for them to: i. Be no longer insane ii. They're no longer a threat to himself or others 6. Burden of proof has 2 parts: a. Burden of production: who is suppose to put forward the evidence b. Burden of persuasion: who carries responsibility to convince the jury, by a particular standard of truth of the crime i. At common law, (a) fell on D & (b) fell on prosecution to prove if D was insane ii. Now, D has the responsibility of both iii. Battle of experts: best part of evidence 7. Buzz Words: Rational goal directed activity; says D is not insane

8. M'Naghten: (The right-wrong test) a. D is insane if, at the time of the act, he was laboring under such a defect of reason, arising from a disease of the mind that he: i. Did not know the nature and quality of the act tha the was doing; OR ii. If he did know it, he did not know that what he was doing was wrong. b. Deals only w/ cognitive mental illness i. Cognitive: ability to perceive reality c. Problems w/ rule: i. It's either black or white ii. Based on outdated psychiatric concepts d. Used in the majority of jurisdictions 9. Irresistible Impulse: (Expansion of the M'Naghten) a. Acted from an irresistibe & uncontollable impulse b. Lost power to chose between right and wrong b/c agency was destroyed c. Person's will was involuntarily destroyed d. Difference form M'naghten: Impulse recognizes volitional, M'naghten doesn't. i. Volitional: When one's actus reus is driven by something else (voices in head) which guides your acts. e. Critisisms: Deterence: floodgate problem, no way to prove, no proof that this actually exists. 10. Model Penal Code; Sec. 4.01 (Same as ALI) a. (1) A person is not responsible for criminal conduct if at the time of such conduct as a result of mental disease or defect he lacks substantial capacity (cognitive) either to appreciate the criminality [wrongfulness] of his conduct or to conform his conduct (volitional) to the requirements of the law. i. Deals w/ both cognitive (M'Naghten) and volitional (Irresistible impulse) b. Used in a large minority of jurisdictions

B. Guilty But Mentally Ill (GBMI) 1. The D may be found GBMI if, after trial, the trier of fact find the following: a. That the D is guilty of an offense... b. That the D was mentally ill at the time... c. That the D wasn't insane at the time... Example: People V. Ramsey (MI)- Lunatic guy stabs and kills wife and then lies in bed w/ her. Ct. found him GBMI

C. Diminished Capacity 1. When will an actor's abnormal mental condition, short of insanity, exonerate him or result in his conviction of a less serious crime or degree of crime than the original charge? a. Majority View: Only a defense for specific intent crimes. b. Most commonly raised in 1st D premeditated murder where if Dim. Cap. is found, the crime can be reduced to 2nd D= if

disease if found to have taken over ability to premeditate 2. 3 approaches to Dim Cap a. MPC: (minority) can be used for gen & specific intent b. Majority: Specific intent only c. Minority: Doesn't recognize the defense at all D. Voluntary Intoxication 1. An artificially induced state of mind resulting from the ingestion of drugs or alcohol. 2. Common Law: Intoxication is not a defense to general intent offenses. For these offenses, a morally culpable state of mind is what is required and therefore drinking provokes rather than negates the mens rea. 3. General Rule: Intoxication isn't a defense except when you can prove that D was so drunk that he couldn't form intent on specific intent crimes. Example: You can use vol. intox. as a defense for attempted rape (specific intent) but not for rape (general intent) Example: People V Langworthy: D committed 2nd D murder, which is w/ a willful or wanton disregard. The ct majority said that the volutary intox. defense is not applicable b/c 2nd murder is gen intent. The dissent did argue very strongly for making 2nd murder a specific intent crime.

E. Involuntary Intoxication 1. Maybe a defense. Is usually used the same way as voluntary intox. 2. Can look like: a. Coerced intoxication b. Intoxication by mistake: date rape drug c. Unexpected reaction from prescription medication d. Pathological intoxication: temporary or psychotic reaction to drugs or alcohol that has never happened before 3. Specific Intent V. General Intent Crimes: a. Specific Intent Crimes: All incohent offenses; solicitation, conspiracy, attempt, etc, all theft offenses, burglary, assault, 1st D Pre-meditated murder, 1st D felony murder; if underlying felony is specific, all theories of accomplice liability, all MPC crimes w/ knowingly, purposefully or willingly. b. General Intent Crimes: Malice, reckless, negligent crimes Hypo: A who is very intoxicated, goes in store for a robbery & kills someone. Felony murder can't be used b/c robbery is specific intent so it will be thrown out. A better arg. would be to try to go for 2nd D murder. Example: State V. Cooper: D was high on drugs/drove recklessly/ kidnapped/shot a cop/ and crashed. Defense used vol. intox. but jury didn't buy it b/c they thought level of

intox. wasn't high enough to interfer w/ mens rea.

4. MPC Sec. 2.08 (Intox. defense) a. Not a defense unless it negates an element b. If recklessness is an element, and D is not aware of the risk b/c of vol. intox. then it's not a defense. c. Intox. is not a mental disease d. Invol. or pathological intox. is an affirmative defense in situations resembling insanity

F. Ignorance or Mistake of Law 1. "It is no doubt true that there are many cases in which the criminal could not have known that he was breaking the law, but to admit the excuse at all would be to encourage ignorance...and justice to the indivdual is rightly ourweighed by the larger interests on the other side of the scales." -Oliver Wendell Holmes Example: People V Marrero: D, a parole officer, misread statue where he thought he had the legal rt to carry a gun. Ct ruled that it didn't matter that he misread it and charged him w/ crim. poss. of weapon 3rd D. They said to allow mistake of law def. in situations like above would open the flood gates to frivolous claims. 2. Common law: Ignorance is no excuse to a crime. 3. Mistake of law defense would only apply to specific intent crimes. 4. Utilitarian: We want to encourage people to learn law and avoid the floodgates of the use of the defense, avoid fabricated defenses and to preserve the obj. of the law. If it was allowed, the law would become what the individual interprets it to be (subjective). 5. Exceptions: a. Reliance on official interpretation-official opinion; attorney general, not private advise, like an attorney b. Mistake about some other law, negating mens rea c. Statue itself requires knowledge about another body of law d. Legislative intent- must know the law in order to break it e. Complex mala prohibita crimes/Fair notice

G. Mistake of Fact 1. While ignorance of the law is no excuse, an honestly entertained, reasonable mistake of fact may be a defense. a. Specific Intent Crimes: Honestly entertained mistake b. General intent or Negligence offenses: Honest and reasonable mistake c. Strict liability offenses: Mistake of fact will not be a defense. Example: People V. Vogel: D had a good faith bona fide and reas belief that wife divorced him and was legally remarried. Ct ruled that the good faith mistake of fact should be allowed.

Example: People V. Hernandez: Guy has sex w/ V. and thinks that she's 18 but she's 3 mo. shy. Ct ruled that D mistake of law should be considered. This is the min. opinion.

H. Consent 1. What is the effect of the victim's consent to a criminal act upon or against him? a. Consent is no defense unless it is an element of the crime b. Rough-play: roughness must be w/in the bounds of the game. c. Fist fights: no consent, illegal, breach of the peace d. Murder: no consent, life is more valuable: kevorkian got life in prison

I. Condonation 1. Theft-bote: The act of receiving a man's goods from the theif, after they had stolen by him, w/ the intent that he shall escape punishment. a. In criminal cases, the V or the witness does not have the right to forgive the crime. The case has to be prosecuted by the gov.

J. Justification Vs Excuse 1. Justification a. Focuses on the act b. Society approves of D's act c. Deserves neither criminal liability or censure d. Nessessity Example: Self defense 2. Excuse a. Focuses on the actor b. Society does not approve of D's act c. Witholds criminal sanctions Example: Insanity

K. Compulsion/ Duress 1. Another person threatened to kill or injure the actor or another 3rd party. a. Threat of future harm is insufficient b. Threat must be against the actor or a memeber of his family c. Threat must be from a human- no dogs or tornados 2. Actor reasonably believed the threat was genuine, imminent and impending 3. There was no reasonable escape from the threat 4. Actor was not at fault for exposing himself to the threat Hypo: Cab drivers/ Bank robbers: Defense under duress

5. What nature of threat is required in order to enable D to raise the defense of compulsion? a. Must be a threat of GBH or death. No economic or reputation threat. b. Must be a real threat to a reasonable person c. Threat must be of a higher degree than the crime d. A threat is no defense for muder i. Some cts will allow a threat to be a mitigating factor. Example: State V Burney: Ex-con got chased by guy at bar and he reached for a tire iron but found a gun his friend had left in the car and used that to threaten the guy. The issue of the ct was whether the defense of the choice of evils was available to one that isn't allowed to possess the gun. The ct ruled that he should have the arg. if the gun was in possession rightfully and he had the intention of turning it over to authorities ASAP. 6. MPC a. It is an affirmative defense that the acto engaged to the conduct charged, b/c he was coerces, by the use of, or threat to use, unlawful force against his person, which a person of reasonable firmness in his situation would have been unable to resist i. A defense even to murder ii. Doesn't have to be an imminent threat and it doesn't have to be just to family. **These next defenses all come down to whether or not your use of deadly force was reas necc., and if so, was it neccessary to protect property or a person. If these defenses are established, then then they are complete defenses.

L. Crime Prevention and Defense of Habitation: 1. Under what circumstances can a police officer or a private citizen use deadly force to prevent a crime or protect the home? a. Common Law: There were very few felonies and the punishment was death anyways. b. Definition of deadly force: force that is intended to cause death or gbh but person doesn't actually have to die. c. Reasons for defense (more utilitarian): * Prevention of crime * Security of the home * Deterrence d. Reasons against (more retributive b/c it deals more w/ interest in the individual: * Interest in felon's life * Innocent mistakes * Risk to bystanders * Ex: Self-defense 2. Justification Vs. Excuse: a. Justification * focuses on the Act * Society approves of D's act * Doesn't deserve criminal liability * Nessessity

b. Excuse: * Focuses on the Actor * Society doesn't approve of D's act * W/holds criminal sanctions * Duress * Ex. Insanity

Example: Commonwealth V. Emmons: D thought repossesor was stealing her car & she used deadly force to stop him. She was using deadly force to protect property. Ct said she was guilty of aggravated assault. Rationale: A person is more important than a car. ** To justify killing in such a circumstance, the crime that is being attempted to be committed must be one committed by force or surprise; such as murder, arson, burglary, rape, kidnapping, sodomy, etc. Example: People V. Ceballos: Guy has had a previous B&E in his garage so he sets a spring gun that shoots a kid that breaks in. Ct said that deadly force is not justified here b/c a spring gun can't make a judgment of danger. ** Ceballos Rule: Deadly force isn't justified unless, considering the manner it was committed creates a reas. fear of death or GBH. 3. MPC: Defense of Habitation a. Use of deadlyforce is not justified unless the actor believes that: * A person is attempting to commit arson, robbery, burglary, or other felonious theft or property destruction AND 1. Has employed or threatened deadly force OR 2. The use of force other than deadly force would expose the actor to a subatantial danger or bodily harm. b. MPC is different that Ceballos: MPC; deadly force is justified if there's an honest belief of neccessity of deadly force (more subj) c. Rationale for making it more subj; you don't want to punish those who aren't morally culpable (Retributive) 4. Comparison of the different approaches ("a" being the strictest and "d" being the most relaxed) a. Ceballos : Reas. fear that felon posses threat of death or GBH. If D had an unreas. fear = manslaughter (imperfect priviledge may be used) b. MPC: Honest belief that felon poses threat of death orGBH (need not be reas) c. Make My Day (statue): Reas. fear that felon might use physical force no matter how slight. Limitations: Has to be reas. belief that the threat is perceived. d. Common Law: Just has to be felon, killing is justified b/c felon would be put to death anyways. 5. Mistake: a. If you acted on an honest reas. belief that your life was in danger, you're justified in using deadly force. b. If mistake was unreasonable, it might be considered an imperfect priv.,

which would be a mitigating factor.

M. Fleeing Felons: 1. When is an officer's use of deadly force to prevent the escape of a fleeing felon? a. Old Common Law: Officer could use deadly force against anyone who he reas belived had committed any felony. b. MI: If officer reas belives felony has been committed he can use deadly force. Example: Tenn. V. Garner: Cops go to bruglary & suspect flees and cop shoots and kills suspect. V posed not threat and wasn't armed. Cts said that most burglaries aren't deadly and that the statue that provided for the cop to use deadly force violated the reasonableness requirement of the 4th Amend. ** Garner Test: 1) Is the deadly force necc. to prevent escape AND 2) Is there a reas. significant threat of death or GBH c. Look at Common law and Garner test in regard to fleeing felons.

N. Self-Defense: Deadly Force 1. Limitations on the use of deadly force in self-defense; if you have a problem w/ one of these limitations, it might hurt your defense. a. Propotionality Limitation b. Aggressor Doctrine Limitation c. Reas. perception limitation d. Imminent threat limitation e. Duty to retreat limitation f. Reas. response (not excessive force) limitation 2. Proportionality Doctrine: a. A person is not justified in using force that is excessive in realtion to the harm threatened. b. You can't use deadly force to repel non-deadly acts, but in the case that you do, you can use imperfect priviledge to mitigate charge. Hypo: Adversary pushed aggressor into path of oncoming traffic =not proportional 3. Aggressor Doctrine: a. It is generally said that one who is the aggressor in an encounter w/ another, may not avail himself of the defense of self-defense. b. If you want to claim the defense you can't be the aggressor. * Social Policy: We don't want D's starting fights and then using the defense: Flood gate arg. c. Minor words and insults will not make you the aggressor. MI, words are never sufficient provocation. * Social Policy: We don't want to encourage combat, that's why this defense is limited to the proportion of the force that you are faced with. d. An aggressor can use the defense if:

1. force accellerates: you slap and they pull a gun 2. Aggressor communicates w/drawl 4. Reasonable Perception Doctrine: a. A person is justifed in using force to protect himself if he SUBJ. believes, and has OBJ. reas grounds for believing, that such force is neccessary to repel an imminent unlawful attack, even if apperances prove to be false. b. Majority: The threat must be honest AND reas, not enough if you honestly/Subj view the threat. c. MPC: requires only honest belief that force is there. d. Minority (retrib.) rationale: They shouldn't be punished if they're not morally culpable. e. To determine whether D has acted reas, cts allow characteristics of parties; varying sizes, gender, strength (if known to D), emotional and mental charac. (if known to D) and drug use. Some cts allow life experiences; ex, battered wife. Example: People V Goetz: Guy shoots 4 minors on train b/c one asks for some money. D had been robbed before and cts considered this. Ct acquited him of assault charges and he ended up just getting convicted of carrying a fire arm. ** Test of standard in Goetz: A reas person in the actor's situation (subj/obj) 5. Imminent Threat Doctrine: a. At common law, a person who wishes to use force in selfdefense must reas. fear that the threat be imminent, immediately, or at once. The danger must be pressing and urgent. Example: Stewart case: Battered wife shot husband. Ct ruled she couldn't use self-defense b/c the threat wasn't imminent. Policy: You don't want to kill someone that's not killing you. It will also encourage people to go to the police. 6. Duty to retreat: a. If a person is assaulted while on his own premises and is w/out fault in bringing on the difficulty, he is not bound to retreat in order to invoke the benefit of the doctrine of self-defense. b. There is a split of authority over whether there's a duty to retreat before using deadly force. c. Majority: No duty to retreat, but must have imminent threat d. Minority (MPC): D has to retreat if he can do so if in complete safety. e. Exceptions: In your ome or business you don't have to retreat. 7. Reasonableness of Response. a. D can't use more force than what reasonably appears to be neccessary to neutralize the threat. b. If excessive force is used, the defense can't be used as far as the excessiveness is concerned. N. Imperfect Privilege

1. If for any reason D can't successfully claim self-defense, he may still be able to argue that the facts and circumstances were such that he shoud not be convicted of murder. a. Can be used if force was exceed or there was an unreas belief of threat. b. Can be used for: defense of others, compulsion/duress, crime prevention, defense of habitation, fleeing felons, self-defense. c. Where not all elements of defense are satisfied, D will arg for mitigating circumstances. Example: State V. Sety: Guy is camping and guy w/ guns came up & started bragging about killing people. D ends up shooting guy after a struggle and kills him. Jury finds D guilty of 2nd D murder but judge mitigates it down to vol. homicide, b/c of excessive force in using self-defense. O. Defense of Others 1. A person is justified in using force to protect a 3rd party from unlawful use of force by an aggressor. Hypo: A sees B and X fighting. A comes to defense of X, but didn't know X initiated fight. 2. 2 Different Rules: a. Alter-Ego (Min.): You step into that person's shoes. b. Majority: If D has reas. belifef that X is not the aggressor & it was neccessary to step in. 3. Common Law: (Alter-ego doctrine.) Limited to employees and members of family. 4. Now: You can go to the defense of a stranger. 5. Modern View (Bernardy): D may defend as long as he reas believed person defended was not the aggressor. 6. Utiliatarian: Against alter-ego: it might deter people from getting involved & intervening. 7. Retributive: Against alter-ego; If D thinks X isn't morally culpable then he's then he's not morally culpable. 8. Same restrictions as self-defense: Reasonable and Neccessary P. Entrapment 1. D was induced to commit the crime by a gov. agent. 2. D, or hypothetical person, would not have committed the offense but for the inducement. 3. Gov. agent acted the way he did in order to obtain evidence. 4. Subjective: Sherman/Sorrells (Majority)

a. Artifice and stratagem may be employed to catch criminals, but a different question is presented when the criminal design originates w/ the officials of the Gov. and they implant in the mind of an innocent person the disposition to commit the alleged offense and induce its commission in order that they may prosecute. * Focus is on criminal not gov. * Subj: is proven when Gov. induces one not prediposed to commit crime = entrapement * Only when idea comes by gov. & if D is not predisposed can defense be used: Cts will look at D's past before gov. got involved. 5. Objective: Roberts/Frankfuter (Minority) a. Entrapment occurs when the police conduct falls below standards, to which common feelings respond, for the proper use of gov. power. b. Policy: Judicial integrity & to hold police to a standard. If police standard falls below such a standard where it causes and harms a law abiding citizen, then defense can be used. c. D's subj. predisposition is irrelevant. 6. Procedural differences between obj and subj: a. Subj: * Submitted to jury * D has the burden of production * P must prove predisposition BARD * If under subj. and you raise defense, D must be willing to have his life put under a microscope. b. Obj. * Question of law for judge * D has the burden of proof by preponderance * Predisposition evidence is not admitted. Example: Jacobson V. US: "When the Gov's quest for convictions leads to the apprehension of an otherwise law-abiding citizen who, if left to his own devises, likely would never have run afoul of the law, the cts should intervene. Facts: Neb. farmer ordered porn mag of naked boys but he thought that they were of legal age. At the time of the order, such orders were legal but shortly after, child porn became illegal. Gov received his name from porn mag's mailing list and bugged him for 2 1/2 years tryng to set him up to commit a crime by ordering child porn. After constantly refusing, his imagination got the best of him and he ordered something and was promptly arrested. SC found that the Gov. played such a substantial role that D wouldn't have done the illegal act if it wasn't for their constant probing and found entrapement. Example: US V. Russell: Agent supplies D w/ hard to find ingrediate for meth and then set him up to sell it. Ct ruled against the D's entrapement defense. Example: People V. Barraza: (ct used the obj test) Agent continuously called ex-drug user to get him to sell some heroine. D refused numerous times but after the constant bugging agreed to help the agent find some heroine. Ct ruled for D and said that their not so concerned w/ D's culpability but rather w/ police mis-


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