Criminal Law (After Mid-Term) I. Defense – All the elements of the crime have been met, but the defendant offers another reason why his actions should be justified/excused. a. Self Defense i. Law of Necessity is paramount – The only grounds for a self-defense claim is that there was necessity for such action. Elements are: 1. Unlawful and immediate threat of deadly force; and 2. Defendants reasonable belief that: a. There is imminent peril; b. Reasonable belief that the response is necessary ii. Aggressor can not use self-defense claim. 1. This is grows out of the necessity element. He could have avoided thee whole thing if he did not start it. 2. An aggressor can re-establish his right to a self defense claim if: a. He communicates to his adversary his attempt to withdraw; b. and makes a good faith effort to do so. iii. Court says you use reasonable standard. Put a reasonable person in D’s shoes. Can take into account past experiences. iv. Battered wife syndrome – Some jurisdictions say that a battered wife as a result of a continuous reign of terror, suffers from an abused spouse syndrome, so she can kill a passive person because it is reasonable for her to perceive that she is always in continuous attack. b. Defense of Others i. A reasonable person in the actors position would believe his intervention necessary for the protection of the third person; ii. and 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. iii. A reasonable mistake is allowed. c. Defense of Property i. 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. Deadly force only if D is in the home. ii. Some states consider any force necessary to repel any invasion into home regardless if danger to D is justified. Deadly force only if D is in the home. iii. 3rd View – D can use deadly force only if intruder also represents an apparent threat to occupant. Defense of property is used the same as defense of others in this view. d. Deadly Force by state (police) i. 4th Amendment protects against unreasonable seizures. ii. Deadly Force may be used: 1. 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 2. necessary to prevent escape; and 3. where it is feasible there must be a warning. e. Necessity Defense i. Traditional view 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. ii. M.P.C. expands the definition by taking away the word imminent. f. Duress (harm brought on by person as opposed to necessity when harm is brought on by force of nature) i. Immediate threat of death of serious injury; ii. A well-grounded fear that the threat will be carried out; and iii. No reasonable opportunity to escape the threatened harm g. Voluntary Intoxication – For specific intent crimes i. 1st View – If a crime as defined by the legislature requires a particular state of mind (mens rea) then voluntary intoxication can be used to prove one did not have that state of mind and is therefore not guilty. ii. 2nd View – Voluntary intoxication can only be used as a defense to lower a murder 1 charge to murder 2. iii. Some states have enacted statutes to clear up which view will be used in their particular state. h. Involuntary Intoxication i. May be used to negate the actus reus of a crime because the act itself must be voluntary or negligent (depending on the statute), and an intoxicated person is not acting voluntarily or negligent if it is not his fault in the first place. ii. 4 Kinds of Involuntary Intoxication 1. Coerced Intoxication 2. Pathological Intoxication 3. Intoxication by innocent mistake 4. Unexpected Intoxication from medically prescribed drug a. defendant must not know or have reason to know that the prescribed drug will have an intoxicating effect; and b. the prescribed drug is in fact the cause of the defendant’s intoxication; and c. the defendant, due to involuntary intoxication, is temporarily insane. i. Insanity (blameless by reason of mental illness) i. Some States have no insanity defense at all. ii. M’Naghten 1. Did not know (cognitive) the nature and quality of the act; or 2. if they knew what they were doing, they did not know that it was “wrong.” iii. M.P.C. – 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 (cognitive); or 2. conform that conduct to the requirement of law (volitional). iv. Irresistible Impulse or Control Test 1. May or may not know if the act is wrong, but is irresistibly driven to do it. v. Durham or Product Test 1. An accused is not criminally responsible if his unlawful act was the product of mental disease or mental defect. vi. Federal View 1. There needs to be severe mental defects; and 2. D must be unable to appreciate the wrongness of the act; and 3. no other defense of mental defect is available. II. Inchoate Offenses (missing the harm) a. Attempts i. Elements 1. Intent to commit substantive crime; and 2. an act which constitutes a substantial step towards the commission of the offense. ii. General Rules 1. Specific Intent can be the only way to satisfy the intent element of an attempt. Can not use knowledge, recklessness, or negligence. 2. No attempted felony murder because felony murder does not require specific intent of murder. 3. Can not have an attempt of an unintentional murder. 4. Can have an attempt of reckless driving. iii. Dangerous Proximity Test (Preparation v. Perpetration) 1. The defendants are so near the result that there is a dangerous proximity of success. 2. But for interference they would have been successful. iv. Tennessee Statute 1. Intentionally engage in conduct that would constitute a crime if the circumstances were as 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. 4. And his actions must corroborate his intent. v. M.P.C – Same as Tennessee Statute but adds an example section that says the following examples may constitute 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 vi. Special Defense to attempts 1. Abandonment a. Traditional view – Abandonment is not a defense to an attempt. b. M.P.C. § 1015(4) – Voluntary abandonment is an affirmative defense in attempt situations. b. Assault i. Vermont 1. A person attempts to cause or purposely, knowingly or recklessly causes bodily injury to another; and 2. they are far enough towards the desired result to amount to the commencement of the consummation. ii. M.P.C. 1. They add – attempt to put fear in another c. Solicitation – Attempt to conspire i. Asking, enticing, inducing, recruiting, encouraging, promoting, directing, counseling another to commit a crime. ii. Merges with Conspiracy – 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. d. Conspiracy i. 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. ii. Actus Reus 1. Agreement to commit the crime 2. Sometimes an overt act in furtherance of the crime as well (very loose act will suffice). iii. Mens Rea 1. Intent to combine; and 2. intent to accomplish the crime. iv. Factors to consider (implied conspiracy) 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. v. Pinkerton Liability 1. Once conspiracy is formed it continues towards the completion of the crime. 2. Each member acts for all the members 3. You must make clear your intent to withdraw vi. Limitation 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. vii. Abandonment 1. Most jurisdictions do not consider withdrawal as a defense. 2. Rare that a jurisdiction will allow it as a defense. III. Theft a. 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. i. Elements 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 a. For Intent to steal (permanently deprive the owner of the property) can use the following three exceptions. i. D intends to sell the property back to the true owner. ii. D intends to claim a reward for finding the property. iii. D intends to return it for a refund. b. Robbery – Larceny from a person by violence or intimidation. c. Theft by false pretenses i. D made a false pretense or representation ii. The representation was made with intent to defraud the owner of his property iii. The owner was defrauded when he parted with his property in reliance of the false pretense 1. False representation can be done expressedly or implicitly. 2. 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.