Criminal Law, Levine, Class 1 Moral Condemnation – Something bad within the criminal. Civil crime is without judgment. We make you pay but we will not call you a bad person. Against Society – People/State/U.S. v D rather than P v D. Punishment – Only when one is convicted of a crime do they lose liberty (jail). Procedural differences – beyond a reasonable doubt, almost always dealing with a statue. Criminal Punishment requires a Criminal Act. Except under some circumstances known as omission. READ p.131 and note 2. p.135 with note 2, 4, 5 8/28/03 Crimes must have mens rea – Intent, state of mind Crimes must have Actus Reus and Mens Rea and Causation. Retribution – punishment Utilitarian – to deter people in the first place We will not morally condemn someone if they did not intend to do something wrong. If they made a mistake, we are not willing to morally condemn them. From a deterrence point of view you can not deter people from doing things they do not intent, a mistake or accident is just that. For this reason we will only criminalize actions done with intent. ONE INTENDS THE NATURAL AND PROBABLE CONSEQUENCES OF HIS ACTIONS Intent can also be transferred, if a person tries to kill X but mistakenly kills Y, still guilty. READ p. 145 Nations case p. 149 Moris & p. 153 note 1 9/2/03 Transfer of intent. Why? Person is still guilty of a wrong against society, he killed someone with the intent to kill. Also provides an additional level of deterrence. Don’t even try to kill A, because if you miss and kill someone else you will still be charged with murder. What if you intend to kill A, and the bullet goes through and kills A and B what is the result? Most courts will charge D with both murders but we can not really explain why. Intent to kill one so conceptually should only be guilty of killing one. The Modern Penal Code has no legal authority, in each state there is one code that has total authority, that is the state penal/criminal code. Next Class: Navarro p. 172 Marrero p. 177 9/4/03 You can not have Intent without the requisite knowledge. Where felonious intent must be proven it can be done only by proving what the accused knew. READ p. 196 Oxedine p. 201 Kibbie p. 200 Note 3 & 4 p. 204 Note 1,3 and p. 205 Note 4 (Not Mandatory these 3 notes) 9/9/03 Policy behind ruling in Marrero case, it is about society’s greater good, people will then try to misinterpret the law in order to suit their means of committing crimes. It would open up the floodgates for defendants to come up with too many defenses. p.200 #3E. Substantial factor test --When the “but for” analysis clearly produces an unjust result we consider the substantial factor test and find them both guilty. Not only the actual or factual cause of the death, but also must be the proximate cause. First consider the intervening act. If it was a coincidence and unforeseeable then it will relieve the initial defendant. If it was response and unforeseeable and abnormal then it would relieve the initial defendant. P. 213-223 Schrader p.229 Midgett p.233 9/16/03 Intentional Killings Premeditation – The defendant deliberated about the killing before performing. Must only be an instant before the action. In a sense taking the “pre” away. Some states do not require premeditation. Some states require premeditation for a murder 1 or 2 conviction and say that it must occur some time before the actual killing. It depends on the state. The burden of proof is on the prosecution. 9/18/03 Murder 2 – Intentional Murder 1 – Premeditation/deliberation Intentional Manslaughter – Taking conduct that should be intentional murder, but because of the facts there is adequate provocation to mitigate a verdict of Intentional Murder and makes it Manslaughter. Acting out of passion or some provocation. Factors to determine if the murder is premeditated/deliberated (Only Factors, not LAW) p. 237 Generally malice means intent in relating to murder. 9/23/03 Unintentional Killing For a murder in California there needs to be killing with malice for Murder. Express Malice is intentional. Implied Malice is abandoned and malignant heart. What is abandoned and malignant heart? – (1) high probability the conduct will result in the death of a human being, (2) a subjective appreciation of the risk, (3) a base antisocial purpose or motive. All murders that are not first degree are second degree. First look at Intentional or Unintentional, then look at Murder or Manslaughter Negligence is enough of a mens rea to support manslaughter. Negligence deals with an ordinary man’s actions. Objective, not subjective. Person can truly believe that death is not imminent but if an ordinary man would disagree then too bad. 9/25/03 Unintentional Killing can be Murder 1 § 189 Murder – (1) by means of destructive device, etc.; (2) willful, delib/premed; (3) or perpetration of . . .robbery. . . California -Felony Murder Statute As long as you have a specific felony (with mens rea) + a death + causation = murder 1 9/30/03 Common Law says that all other felony which causes murder is murder 2. The courts seem to be going away from this trend and are limiting the felonies that will apply. INHERENTLY DANGEROUS FELONY In California if a felony is not in the statute as supporting a murder 1, then only other felonies that are “inherently dangerous” will support murder 2. Courts want to restrict the application of the felony murder rule. Different states have different views. People v. Smith Because the underlying felony was so inherently dangerous it can not be the basis for the felony murder rule. Once the D is engaged in a willful felony that is an integral part of a homicide, they can not be deterred by adding on the possibility of felony-murder. For the felony-murder rule to apply, the felony must lead to the death. Case of two felons transporting drugs via airplane where the plane went into fog and crashed. One died and the rule would not apply because the crash had nothing to do with the felony. If the death is a product of causes wholly unrelated to the felony then do not apply the rule. Death must be integral part of or an act in direct furtherance of the felony. There is a rule that co-felons are responsible for the actions of a co-felon. But they are not responsible for the actions of their adversary. They can not be charged with felonymurrde if an adversary of the felons kills someone. 10/07/03 DEFENSE All the elements of the crime have been met, but the defendant offers another reason why his actions should be justified/excused. SELF-DEFENSE Law of Necessity – The only grounds for a self-defense claim is that there was necessity for such action. 1. Unlawful and immediate treat of deadly force and; 2. Defendants objectively reasonable believe that; a. There is imminent peril and b. Reasonable belief that the response is necessary Court says aggressor can not use self-defense claim. The court says that this idea grows out of the necessity element. If an individual was the aggressor, or cause of an altercation then he can not use the self-defense claim because it was necessary for him to kill, he could have avoided the whole thing if he did not start the altercation. The only way an aggressor can restore his right to self-defense is if he communicates to his adversary his intent to withdraw and makes a good faith attempt to do so. The Court says that you must use objective standard, put a reasonable person in D shoes. Still can take into account all of D past experiences. REVIEW Actus Reus Martin Case, voluntary appearance is presupposed Father killed his son, the concept of conditioned reflex would serve as defense to the actus reus element. But there was no evidence of that in this case. At times, an omission can substitute for the act. If there is a duty + breach of duty through omission + causation can lead to a conviction. Distinction between moral and legal duty. Also if someone voluntarily assumes duty and as a result deters other from helping, then that can lead to the duty and then a negligent attempt could lead to a crime. Also if you create the peril yourself you have the duty. If you push someone in the water then you have a duty to save them. Pulling plug on life support case as well, the court holds that pulling the plug is not an act but instead an omission, because they are not failing to provide treatment. The court held that the doctor did not have a duty and thus could not be charged with a crime for omission of duty. Mens Rea Conscious objective of causing. We presume that the D intends the natural and probable consequence of his actions. Transferred intent, we can put together the mens rea directed at X with the actus reus of hitting Y and we have the crime that way. Causation Actual cause, sometimes called cause-in-fact. To find out if it is actual cause we look at the “but for” analysis. For murder, it is “but for” the defendants action would the victim have died as soon. Intervening cause can break the chain of legal causation from being applied to the D act. Under the following circumstances: If the intervening act is coincidental and unforeseeable, or if the intervening act is in response to the D actions and unforeseeable and abnormal. Homicide First determine if the mens rea was intentional killing or unintentional killing Intentional Killing Murder 1 – Usually includes premeditation and deliberation, this can be complete in just the twinkling of the eye. But this was overruled, saying there must be some period between the premeditation and the killing Voluntary Manslaughter is conduct that otherwise would give rise to a murder charge but because the act was taken under adequate provocation or under passion in and in time where he was not allowed to cool off. Unintentional killings California statute allows for the possibility of malice to be substituted for intent. Self-Defense 1. Subjective – appears to D – necessary to kill to save herself 2. Objective – that a person of ordinary firmness under the same circumstances would find the behavior reasonable The Supreme court focuses on the term necessary and says that in order for it to be necessary to kill the danger must be imminent. THE MODEL PENAL CODE DOES NOT USE THE WORD REASONBALE, ONLY SUBJECTIVE Norman case, differing views on abused spouse syndrome. NC Court of Appeals, the rule of self-defense has a subject and object element. They held that as a result of a continuous reign of terror, she suffered from an abused spouse syndrome, so she could kill a passive person because it is reasonable for her to perceive that she is always in continuous attack. NC Supreme Court overruled and said that the self-defense claim only works if there is an immediate threat of harm. They say you can never kill a passive (sleeping) person. MIDTERM Threshold question is intentional or unintentional? Intentional • Premed. – Murder 1 • Intentional but not premed – Murder 2 • Voluntary MS Unintentional • Felony Murder 1 • Felony Murder 2 • Implied Malice Murder 2 • Unintentional Manslaughter In this case not intentional so, immediately knock out intentional. Gross negligence, is a gross lack of caution. Defense of Others 1) A reasonable person in the actors position would believe his intervention necessary for the protection of the third person; and 2) in the circumstances as the actor reasonably believes them to be, the third person themselves would be justified in using such force to protect himself. A mistake is allowed if it is reasonable. Defense of Property Conditional Intent – D says if I see something worthwhile, then I will steal it. It is a murky issue if that satisfies the mens rea part. Assault is justified in he same instances that homicide would be justified. Some states consider any force necessary to repel any invasion into home regardless if danger to D is justified. Common approach – if D reasonably believes that felony will be committed in side home, then D is permitted to use all the force necessary to repel invasion. 3rd View – D can use deadly force only if intruder also represents an apparent threat to occupant. Equate Defense of Property with Defense of Others in this view. 10/23/03 4th Amendment protects against unreasonable seizures. Supreme Court says that deadly force can not be used unless it is to reasonably prevent one from killing or seriously injuring others. Deadly force may be used • If a suspect threatens officer or there is probable cause that the suspect has committed a crime that involves a threat or the infliction of serious physical harm to others; and • Necessary to prevent escape; • And where it is feasible there must be a warning. Necessity defense 1) Clear and imminent danger 2) Reasonable expectation that his/her action will be the direct cause of abating danger 3) No legal alternative which will be effective in abating danger 4) Legislature has not acted to preclude the defense What is imminent? Looks like it must be a death or great harm that will immediately occur. Getting AIDS did not qualify. The Model Penal Code expands the necessity defense and takes away the term imminent. Read p.553 & 574 10/28/03 Duress 1) Immediate threat of death of serious injury; 2) A well-grounded fear that the threat will be carried out; and 3) No reasonable opportunity to escape the threatened harm Could be true that Duress is when the harm is brought on by another person, Necessity is when the harm is from a force of nature. Voluntary Intoxication (overulled?) If a crime as enacted by the legislature includes an element of a particular state of mind, mens rea, if based on the facts of the case, the defendant is unable to form that mens rea, then the defendant did not commit the crime. Even if the reason he was unable to form the mens rea because he was intoxicated. Some state legislatures say this defense can only be used to lower the degree of Murder 1 to Murder 2. Where the legislature has not made a ruling, there is a split in the courts over whether the defense can be used to escape the intent element altogether or if it can only be used in the case of lowering Murder 1 to Murder 2 or Murder 3 p.585 & 597, and MPC 4.01 (1) p. 1009 Involuntary Intoxication The generally rule is that Voluntary Intoxication is a defense when trying to negate the mens rea of a crime. In this case (hit and run crime) is a strict liability crime, no mens rea element, if hit and drive away you are guilty, no intent needed. So they did not allow the intoxication defense at all. But even in the case of a crime that does not require a mens rea, all crimes require an actus reus. The Involuntary Intoxication defense may be used to negate the actus reus, because the act itself must be either voluntary or negligent (depending on the statute). 4 kinds of Involuntary Intoxication • Unexpected Intoxication that results from the ingestion of a medically prescribed drug. 1) defendant must not know or have reason to know that the prescribed drug will have an intoxicating effect. 2) the prescribed drug is in fact the cause of the defendant’s intoxication 3) the defendant, due to involuntary intoxication, is temporarily insane INSANITY The claim of insanity, the claim of a criminal defendant that they are blameless by reason of mental illness. Objectives to be satisfied by setting a legal standard of insanity 1) reflect the principles of law and community values 2) comport with scientific understanding 3) phrased with scientific info comprehensible to jury 4) preserve authority of trier of fact Historical Tests M’Naghten – Did not know (cognitive) the nature and quality of the act, or if they knew what they were doing, they did not know that it was “wrong” Problem with this approach is that the human mind does not have an all or nothing concept about right or wrong, but there are many shades of gray. Also this test requires the expert witness to testify on a moral judgment that the D did not know right from wrong, at this point what is left for the jury to decide. Irresistible impulse or Control test (volitional) – Does know the act is wrong, but is irresistibly driven to do the act. The D is powerless as a result of the duress of the disease. This test fails because it requires a sudden explosive fit rather than a long . . . Another problem is that there also are shades of gray as to what you can control or not, it is not like you totally can’t control yourself. Durham or Product Test – an accused is not criminally responsible if his unlawful act was the product of mental disease or mental defect. This is very circular, we are trying to find out what will allow for a mental insanity defense. Also usurps the jury’s power. Model Penal Code Test – 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 either to 1) appreciate that the conduct was wrong; or 2) lack the ability to conform that conduct to the requirement of law. This provides a broader form of the defense. Either cognitive or volitional defense. The court likes the language of this law, they feel it is not too complicated or too simplistic. They also find that this does not usurp the jury’s power. They use the word appreciate rather than know, which is somewhat broader. The MPC on this issue has been adopted by 23 states and all federal courts As a result of the attempted assignation of Regan a few states repealed the concept of insanity entirely. Other states have gone back to the M’Naghten test. And congress passed an act for federal courts saying 1) there needs to be severe mental defects, 2) unable to appreciate the wrongness of the act; 3) no other defense of mental defect is available. This only maintains the cognitive element and gets rid of the volitional element. For the exam we should know the M’Naghten test and the MPC test. These are the most prevalent test. If he gives us any other standard then we should be able to understand and apply them. 11/4/03 Inchoate Offenses (attempts, assaults, conspiracy, solicitation) Missing the harm. Attempt a) intent to commit murder And b) act which constitutes a substantial step towards the commission of the offense The court says that knowledge is a less purposeful state of mind than intent. The court says that to be guilty of attempted murder you must have the specific intent to kill. The ranges of mens rea. Intent Knowledge Recklessness Negligence The court says that the other 3 possible mens reas, may be the basis for a substantive case of murder, only intent can be the basis for an attempt charge. Attempted Felony Murder – Does not exist because felony murder does not require a specific intent to kill. Criminal attempt is a specific intent crime. Voluntary manslaughter requires an intent to kill, but we mitigate the murder down to manslaughter because of the provocation. We do have the crime of attempted voluntary manslaughter. Involuntary manslaughter is an unintentional killing so there is no specific intent. We do not have and attempted involuntary manslaughter. Can there be attempted reckless driving? Yes, a person can not intend to do something unintentionally, but a person can intend to do something reckless. 11/6/03 Actus Reus of attempts. We are looking for conduct that, one the one hand is going towards the completion of a crime, but not yet fully completed it. People v. Rizzo The defendants prepared for a robbery and knew who they wanted to rob. They never found the person to rob, and were arrested before they were able to find him. The distinction is between preparation and perpetration. Dangerous proximity test – are the defendants so near to the result that there must be a dangerous proximity of success. But for interference, there was reasonable likelihood of success. Elements for attempt prior to 1989 in Tennessee. 1. Intent to commit the crime 2. an overt act toward the commission of that crime 3. failure to consummate In 1989 the Tennessee Legislature steps in. A. 1. Intentionally engage in conduct that would constitute a crime if the circumstances were are the D believes them to be. (if one reaches in a pocket to pick it, but there is no wallet in the pocket) or 2. Acts with Intent to cause a result that is an element of the offense, and believes the conduct will cause the result. (if one starts a fire with intent to commit arson, somehow the fire goes out before doing damage) or 3. Acts with intent to complete the crime and the conduct constitutes a substantial step toward the commission of the offense. B. his action must corroborate the intent. The court is unclear on what it means to constitute a substantial step. They look to the Model Penal Code to get some guidance on the legislative intent. The model penal code uses virtually the exact same language as the Tenn Legislature but they also add an example section and says that the following examples could be evidence of an attempt but not always must be evidence of an attempt: 1. possession of material designed for the crime to be employed in the commission of the crime which can serve no lawful purpose of the actor under the circumstances; or 2. possession of materials to be employed in the commission of the crime at or near the scene of the crime For the test, know the Tennessee statute, the model penal code, and the other test of proximity to crime (preparation v. perpetration). SPECIAL DEFENSES Abandonment In the McCloskey case the concurrence says that with attempts there is a special defense of abandonment. You can reverse the crime if you change your mind while committing the crime if you don’t cause harm. M.P.C. § 1015(4) – Voluntary abandonment is an affirmative defense in attempt situations. The Traditional view is that voluntary abandonment is not a defense. Attempts are not actually committing a harm to society, they are illegal as a prevention mechanism. It is there to prevent the crime from being complete and the harm being done. Once a crime has been committed, the harm has been done to society. We can talk about undoing the harm if we want but that is a different story. If the attempt is abandoned, the harm is never done to society in the first place. ASSAULT (know 2 view points) Vermont, and MPC Vermont A person attempts to cause or purposely, knowingly or recklessly causes bodily injury to another. It must be far enough towards the desired result to amount to the commencement of the consummation. M.P.C. § 211.1(c) – They change assault to attempt to put another in fear. SOLICITATION An attempt to conspire The rationale is that a solicitor usually plans, schemes, suggests, encourages, and incites the solicitation. Not only engaging in a crime itself, but convincing other to engage in crimes as well. From a moral standpoint the court says that the solicitor is more morally culpable because they hide behind someone else. When charged, certain crimes merge with others. An attempt is always merged with the substantive crime. We separate these two crimes and can not convict of both. Because solicitation is an attempted conspiracy when someone says to someone “lets commit this crime” and the person says “ok,” the proper conviction is conspiracy only because once the person agrees then the solicitation is successful and the person becomes a conspirator. CONSPIRACY A partnership in criminal purposes. A mutual agreement or understanding, expressed or implicit, between two or more persons to commit a criminal act or to accomplish a legal act by unlawful means. The actus reus is the agreement to commit the crime. (sometimes an over act in furtherance of the substantive crime). The mens rea is intent to combine and intent to accomplish the crime. The crime of conspiracy does not merge with the substantive crime, the substantive crime is irrelevant to the conspiracy, once there is agreement the conspiracy is committed. Some states require an overt act in furtherance of the substantive crime, but this requirement is usually extremely small, almost any act will be considered enough to satisfy the overt act requirement. Can a member of a conspiracy to commit a substantive crime, but took no action in the furtherance of the substantive crime, be convicted of the substantive crime? The court describes a continuous conspiracy, once a conspiracy is agreed to, it continues towards the completion of the crime. You must make a clear effort to withdraw from the conspiracy. Each partner acts for all the others in carrying it forward. (Pinkerton Liability). Is withdrawal considered an abandonment of the conspiracy that will exonerate you completely, that is a good question, most jurisdictions say the conspiracy is complete and that is that, some jurisdictions may allow abandonment as a defense. Exceptions: 1. if the substantive crime is not in furtherance of the conspiracy 2. if the substantive crime does not fall within the scope of the unlawful project 3. if the substantive crime is merely a part of the ramifications of the plan which could not be reasonably foreseen as a necessary or natural consequence of the unlawful agreement. Criminal conspiracy may be inferentially established by showing the relationship, conduct, or circumstances or the parties, and the overt acts on the part of the coconspiirator have uniformly been held competent to prove that a corrupt confederation has in fact been formed. Factors to consider: 1. Association with alleged conspirators; 2. Knowledge of the commission of the crime; 3. Presence at the scene of the crime; 4. Participation in the object of the conspiracy. ACCOMPLICE LIABILITY An accomplice is guilty of the very charge of which the principle is convicted. Why not Pinkerton Liability as a result of conspiracy? Because there is no evidence that they conspired, no evidence of an agreement with the defendant to commit crime. The court agrees that a lookout can be an accomplice and can be guilty of the substantive crime. A lookout acts to detect or intercept possible problems in the crime, and in doing this they act in participation of the crime. Ultimately the defendant must participate in some way, the crime must be something the defendant seeks to bring about, that he seeks by his actions to make it successful. D must have mental state (intent) to commit crime. If you are an accomplice to a crime, then you are guilty of any reasonable and foreseeable consequences of that crime. The crime requires some action: Soliciting, aiding, offering moral support, agreeing to aid, attempting to aid, in planning or committing the offense. Things to ask: Battered Wife Syndrome Minority view of defense of others Voluntary v. Involuntary intoxication to negate actus reus or mens rea. Insanity, Goals of insanity test, other views. LARCENY Trespassory taking and carrying away of personal property of another with intent to steal the same. Courts have broadened it to embrace misappropriation by a person who with the consent of the owner already had physical control over the property. 1. Took possession 2. of personal property 3. owned or possessed by another 4. by means of trespass 5. with intent to steal the property 6. carries the property away Intent to permanently deprive the owner of the object. There are 3 general exceptions to this mens rea. 1. D intends to sell the property back to the true owner. 2. D intends to claim a reward for finding the property. 3. D intends to return it for a refund. Reason for the final exception is that when the defendant is trying to return the object he is exercising ownership of the property. If the store does not give him the refund then he does intend to walk away with it. If necessary he will deprive the owner of the object. ROBBERY Larceny from a person by violence or intimidation. THEFT BY FALSE PRETENSES 1. D made a false pretense or representation 2. The representation was made with intent to defraud the owner of his property 3, The owner was defrauded when he parted with his property in reliance of the false pretense False representation can be done expressedly or implicitly. The false representation need not be the only factor the owner relied upon. As long as the false pretense was materially relied upon by the owner, that will satisfy the third element.