Final Outline- Criminal Law

I. Elements of Criminal Liability (Prosecution must prove all elements B.A.R.D) A. Actus Reus (physical or external part of the crime) 1. Voluntary – decided by personal choice a. MPC 2.01(1) – NOT reflex, convulsion, sleeping or hypnosis b. (Martin – cops take guy to highway to charge with public intoxication; NOT Voluntary) c. (Utter – stabbed son, intoxication voluntarily induced, Guilty) d. Conditioned Response? e. Time Frame: at exact moment crime was committed, was there a voluntary act by Δ? (broad/narrow time frame) 2. Omissions (5 Dutities) a. Domestic Relationship (spouse, parent/child) a1. (Beardsley – NO duty to just a lover) b. Public Duty by position/status relationship b1. Did Duty expire? (Barber – Dr. takes patient off life support because not effective; consider Proportionality, if burdern > benefit, NO DUTY) c. Where one assumes a contractual duty of care to another d. Where one voluntarily cares for another (and prevents others from giving aid) e. Where a person creates a risk pf harm to another B. Mens Rea (mental ingredient) 1. What MR is required? Whatever it is, it applies to all material elements of the crime 2. MPC 2.02(2) 4 Intents (purpose, knowledge, reckless negligence) [if not stated, must be at least reckless] a. Purpose – it’s his conscious objective to act, and cause the result. If there are attendant circumstances, actor is either aware of them or thinks they exist b. Knowledge – aware of conduct or attendant circumstances AND awareness that result is practically certain—if a result crime) B1.Willfull Blindness Doctrine: if you don’t actually know but you know there’s a high probability then you are considered to know (Nations – 16 year old stripper, owner not guilty because Mizzou didn’t apply MPC) c. Recklessness – Knowledge of risk; consciously disregards substantial and unjustifiable risk AND must be a gross deviation from standard of conduct of law abiding person in the actor’s shoes d. Negligence – should be aware; based on objectively reasonable person 3. Common Law (malice, intentional, knowledge, recklessness, negligence) a. Specific/General Intent a1. Specific – specific purpose of doing the act (purpose/knowledge) a2. General – just have to intend to do the thing you did; no mental state required (recklessness, negligence) b. Consider Statutory Interpretation b1. (Conley) (Morris – worm virus) 4. Is there a defense that would negate the element? a. Mistake of Fact [negates MR when (MPC 2.04(1))] a1. Specific: mistake negates the MR because of good faith belief, doesn’t matter if reasonable or unreasonable (Navarro – thought the steel beams were abandoned) a2. General: mistake must be honest AND reasonable to negate MR b. Mistake of Law b1. rarely a defense, because never really works C. Causation 1. Two Types a. Actual Cause a1. Majority/MPC 2.03(1) – antecedent ―but for‖ which result would not occur at that time; if you accelerate you are also an actual cause (Oxendine – child abuse, couldn’t decide if it accelerated so only assault) a2. Minority – substantial factor (only applies when simultaneous conduct) a3. Limitations (Velazquez – vehicular manslaughter because because both Δ and now deceased were drag racing) 3a. result of conduct is beyond scope of fair assessment of danger created by conduct 3a. it would be unjust because of fairness/policies to hold Δ responsible b. Proximate Cause (No hard fast rule) D. E. F. G. b1. Consider: Is it fair to hold Δ liable for result? B2. Policy factors B3. Intervening Acts (By Whom?) (will turn on foreseeability; if unforeseeable, may cut off liability) (Kibbe – drunk guy left on highway, struck by another car; still liable because other things didn’t break the chain) 3b. Act of God 3b. Intervening Parties 3b. Act of Victim 3b. Coincidence 3b. Response b4. social utility c. 3 Questions c1. Did Δ cause conduct/result? c2. Was the act/result foreseeable? c3. Are there intervening causes that break chain of liability? Attendant Circumstances (a condition that must be present in conjunction with the prohibited conduct or result in order to constitute the crime) Result B.A.R.D 1. prosecution must prove all 5 of the above elements 2. Jury Instructions (Were the ones given appropriate?) 3. Circumstantial Evidence a. Inferences can go either way so make strong arguments (Owens – drunk in car in someones driveway) Principles of Punishment 1. Policy Arguments 2. Retribution (you do something wrong, we punish you because you deserve it) a. Eye for an eye b. Backward looking; not trying to serve any future interest c. Serves as a deterrent, promotes accountability, prevents people from taking the law into their own hands 3. Utilitarianism (greater good) a. 3 purposes a1. Deterrence 1a. Specific – trying to prevent that person from committing a crime 1a. General – trying to prevent society from committing a crime. a2. Rehabilitation (general) – stop them form wanting to do this in the future a3. Incapacity – out of circulation so you cannot do any future harm (Dudley/Stephens – guilty of eating boy but only sentenced to 6 months) 4. Justification/Excuses (Look at later section on defenses) II. Criminal Acts A. Homicide 1. Actus Reus a. Murder/Killing b. MALICE (willfull and deliberate disregard of human life) a1. ill will not required (Regina) a2. actual intent to do haarm a3. Recklessness as to whether harm may occur c. Deliberation/Premeditation b1. (Schrader – has to be more than just a twinkling of the eye) b2. (Midget – child abuse over years is not premeditated; intent was to beat, not kill) b3. Consider the circumstances; number of wounds, shots afterward, prior relationship) d. Intentional 2. Mens Rea a. Common law a1. intent to kill a2. intent to cause GBH a3. depraved heart murder (wicked, reckless) a4. intent to commit felony b. MPC 210.2 b1. Purposely OR Knowingly OR Recklessly (manifesting an extreme indifference to human life) b2. no distinction between first and second degree murder B. Manslaughter 1. Mens Rea a. Common Law a1. without malice a2. In Heat of Passion 2a. Was Provocation Adequate? -Mutual Combat -Assault -Protecting Loved one/person -Catching Spouse in Sexual Act -Resisting illegal arrest -Words not enough (Girouard) 2a. Quasi Objective Test – whether there was a reasonable explanation or excuse 2a. Sudden: Objective test for cooling off time 2a. Causal connection between passion and fatal act b. MPC 210.3(1)(b) or 210.4 (still requires without malice and In Heat of Passion) b1. Recklessly OR b2.acted under influence of Extreme Emotional Disturbance (Subjective) (Casassa) b3. is there a reasonable explanation or excuse? (Objective); look from standpoint of someone in Δ situation acting under circumstances as actor believed them to be c. Without malice d. In Heat of Passion or under Extreme Emotional Distress C. Involuntary Manslaughter 1. MPC a. Negligence is all that is required; a failure to be aware of substantial/unjustifiable risk that must be a gross deviation from standard a reasonable person would use (Hernandez – van w/stickers, wanted to use stickers to show he was aware of danger, but didn’t need to show awareness because all that was required is negligence) 2. Common Law a. Can be minor Recklessness but more often Gross Negligence a1. Δ either aware of risks of conduct OR aware conduct is contrary to the law a2. extreme indifference to value of human life a3. (Berry – pit bull, awareness, high probability (subjective) to prove standard; implied malice) a4. (Williams – criminal negligence; Indian couple scared of social services didn’t take baby to the doctor) D. Felony Murder Rule 1. Felony + Killing=Murder a. Must be in course of or furtherance of felony (King – Marijuana plane crashed; NOT in furtherance of felony) b. Felony must be inherently dangerous; courts will examine this in the abstract (Burrouhgs – self healer killed cancer patient; practicing without a license NOT inherently dangerous) c. Death need not be foreseeable; take person as is regardless of pre-existing condition (Stamp – heart attack during course of robbery) d. NO MR; no intent required for killing only the intent for felony 2. Merger Rule a. Felony must be independent of resulting death (Smith – child abuse) 3. Killing must be you or your Accomplices a. (Bonner – guard kills one of robbers; other robbers not guilty) 4. MPC 210.2 E. Rape 1. Actus Reus Elements a. Intercourse a1. By force or threat of force 1a. Physical, Verbal, Emotional 1a. Δ has purpose to impose will, inflict fear in victim 1a. Resistance=evidence, not required a2. Against the will 2a. Resistance=evidence, not required (Burkowitz – dorm rape, passionately moaning no not enough) a3. Without Consent 3a. verbal, freely given, affirmative consent (more than just passive resistance) (M.T.S.) 3a. if evidence that permission was given, π has burden of proving that Δ did not believe or belief was reasonable (M.T.S.) 3a. MUST CONSIDER TOTALITY OF CIRCUMSTANCES: AGES, PHYSICAL, POSITION OF AUTHORITY 2. Mens Rea a. General Intent Crime b. Need only be aware that the victim does not consent c. Negligent or higher d. To negate MR, need honest and reasonable mistake (Sherry – 4 some, each testified that the victim consented) (Mistake of fact: defense only if a reasonable person in Δ’s situation would have also believed that the victim consented) I. Defenses A. Justification Defenses (negates AR because no bad act) 1. Self Defense a. Common Law Elements (Peterson) a1. honest belief/fear of death/GBH a2. threat must be reasonable (objectively) in light of surrounding circumstances 2a. (Goetz – thought boys would rob him) 2a. MPC 3.09(2) – uses subjective test—can only be held to stated intent threat of the use of deadly force a3. threat must be immediate/imminent (MPC 3.06) a4. threat of use of unlawful force (actual or apparent) a5. response must be proportional to threat of potential harm 5a. can use physical force if reasonable to believe other person will. 5a. Deadly force CANNOT be used for non-deadly attacks (Goetz – subway, attempted robbery, guy shoots 4 kids) a6. response must be necessary 6a. CANNOT provoke situation 6a. CANNOT be aggressor or escalate situation b. MPC 3.04 b1. use of force is justified when actor believes the force is immediately necessary to protect oneself from the use of unlawful force by that particular person, on that particular occasion b2. Subsection 2 sets forth limitations c. Duty to Retreat c1. Maj – CAN stand ground and use deadly force if reasonably necessary to save self c2. Min – must retreat to wall c3. MPC 3.04(2)(b)(2) 3c. retreat only arises if defendant resorted to deadly force 3c. Can’t use deadly force if you can retreat safely 3c. Not required to retreat from home if not aggressor c4. Common Law – no duty to retreat from home (Castle Doctrine) d. Imperfect Self Defense d1. if belief was honest but not reasonable, crime can be mitigated (even if not excused) from murder to manslaughter d2. MPC 3.09(2) – if actor’s belief of force is erroneous (wrong proportionality), using a subjective test, actor can be held to lower levels—reckless or negligent if his mistake was reckless or negligent 2. Battered Woman Sydrome (part of self defense) a. Elements a1. Subjective – Δ woman must believe it is necessary to kill from her perspective in order to prevent her own death/GBH a2. Objective – is this belief reasonable? Reasonableness will be measured by a person of ordinary firmness under the same circumstances b. Problems with Elements a1. Reasonable: Was response reasonable in light of her circumstances (she’s weaker, it’s happened before). Is it reasonable person or reasonable battered person? a2. Imminence: because its happened so many times before? (Norman – shot him while he was sleeping, no imminence there, take a narrow time frame approach, guilty) 3. Defense of Others (Martin) a. Majority – a person is justified in the use of force against others when and to the extent that he reasonably believes that such conduct is necessary to defend himself or another against imminent and unlawful force; here, reasonably means a person in the ACTOR’s position would believe that is necessary to act AND the person would be justified in using the same force to protect himself b. Minority – even if you relly believe that you have a right to intervene, act at your own peril; if the person you are helping wasn’t justified in defending himself then neither are you when you step in (Alter Ego) c. MPC 3.05 – when someone is justified in using force to protect themselves against injury, can do the same for another; this is measured under the circumstances as the ACTOR believes them to be; actor believes his intervention is necessary d. Must consider the relationship of people involved 4. Defense of Property a. General Rule: CANNOT use deadly force to defend property b. MPC – deadly force fine in certain situations i. When there is an attempt to disposses of dwelling ii. When in the commission of arson, burglary, robbery or other felonious theft or property destruction, the bad guy has 1. employed or threatened deadly force against or in presence of actor OR 2. force other than deadly would expose the actor or another present to substantial danger of GBH 5. Law Enforcement a. General Rule – deadly force CANNOT be used unless it is necessary to prevent the escape and the officer has probable cause to believe the suspect poses a significant threat of death or GBH to the officer and others b. MPC 3.07 – can only use deadly force when the actor believes the person committed a felony AND the person effecting the arrest is authorized to act AND the person believes the force employed poses no substantial risk of injury to innocent persons AND the person believes that if he gets away he will cause GBH or death to others AND the crime for which he is being arrested involved conduct including the use or threatened use of deadly force 6. Necessity a. Common Law (Ask these 6 questions) a1. Did Δ have choice of 2 evils? (must be evil, economic harm not sufficient) a2. Did Δ choose lesser of 2 evils? (reasonable belief) (life is worth more than property) a3. Did Δ create the necessity? (narrow/broad time frame) a4. Were there legal alternatives available? (really available in the situation?) (Leno – should have gone to Legislature to establish needle exchange program) a5.Was there a clear and imminent danger? (if time to do something else, not necessary to act now) (Leno – no imminent danger because of lack of needle exchange program) a6. Did Legislature preclude it? (If yes, can’t use defense) b. MPC 3.02 (more broad) b1. no imminence required b2. Choice of lesser of 2 evils: SUBJECTIVE; Whether Δ thought it was reasonable to make HIS choice b3. Also, allowed to kill someone here b4. no prohibition if you cause it yourself B. Excuses (focus on actor. Should actor be punished or excused?) (quasi negates MR, no free will in developing intent) 1. Duress (MR negated because no free will of mind) a. Common law Elements (Contento-Pachon – guy forced to swallow balloons of cocaine when lives of family are threatened) a1. immediate threat of death or GBH a2. well grounded fear that threat will be carried out a3. no reasonable opportunity to escape that harm a4. Also, Make sure 4a. Δ did not put himself in that position 4a. Δ did not kill someone b. MPC 2.09 Elements b1. threat of unlawful force b2. against any person b3. of the type that would cause a person of reasonable firmness in that situation to yield b4. Also, consider 4b. Δ did not recklessly put himself in that situation 4b. Δ did not negligently put himself in that situation if negligence is all that is necessary to satisfy culpability for that crime 4b. STILL available where you kill someone c. Prison Escape (Unger – duress didn’t apply here but necessity might; escaped prison after life was threatened) [DON’T have to meet all following factors in prison escape context] c1. prisoner faced with some specific threat of death or GBH c2. threat must be immediate c3. No time to complain to authorities or history of futile complaints c4. No time/opportunity to resort to the courts c5. No evidence of force or violence against innocent persons c6. Prisoner IMMEDIATELY reports to authorities once in a position of safety 2. Insanity a. 6 Tests a1. Right/Wrong: knowledge of good vs. evil a2. McNaughten (need first and either second or third) [Know this one] 2a. Δ laboring under defect of reason or disease of mind 2a. So as not to KNOW the nature and quality of act that he is doing 2a. if he DID NOT KNOW nature and quality, didn’t know what he was doing was wrong 2a. Criticism – focused on knowledge of right/wrong. But this isn’t only thinig that makes people insane—doesn’t recognize emotional impairments. Hard to figure out what someone knows so hard to apply. Limits expert testimony. a3. Irresistable Impulse/Control Test – if a policeman were standing next to you, you’d still do it 3a. Criticism – how do you prove you are not able to resist I. a4. Product – Insane if actions are product of mental disease or defect 4a. Criticism – all depended on what expert witnesses/psychologist said; leaves nothing for the jury a5. MPC 4.01 – 2 Tests, 3 elements each [know this one] Cognitive Test (Wilson – wrongfulness interpreted by society’s standards; if they condone, it is moral, not wrong) 5a. as a result of mental illness or defect 5a. the Δ lacks substantial capacity 5a. to appreciate (broader than knowledge) either the criminality OR wrongfulness of conduct Volitional Test 5a. Δ lacks a substantial capacity 5a. to conform conduct 5a. to the law a6. Federal Test [know this one] (most difficult to prove insanity under) 6a. at time of committing acts 6a. Δ as a result of SEVERE mental disease or defect 6a. Δ was UNABLE 6a. to appreciate the nature and quality or to appreciate the wrongfulness of conduct/acts Inchoate Offenses [Solicitation→Conspiracy→Attempt→Substantive Crime] A. Attempt 1. 2 Types a. Complete – actor does everything in his pwer to commit the crime b. Incomplete – actor does some things, but doesn’t complete all the acts necessary to finish the crime 2. Mens Rea (dual intent) a. Intent to commit the act b. Specific Intent to commit the crime c. Common Law c1. specific intent= purpose, knowledge not enough d. MPC d1. specific intent=purpose/belief (close to knowledge) d2. MPC punishes attempts far more than Common Law e. No Attempted felony Murder or Manslaughter e1. they lack the requisite specific intent 3. Actus Reus (7 Tests) a. Physical Proximity – how close are you to completing the crime; attempt must be proximate to completed crime (Peaslee – ready to burn building, changed mind while driving there, not guilty) b. Dangerous Proximity – balances the probability and gravity; closer you are to completion, more reason to step in (Rizzo – never found payroll guy trying to rob, not guilty) c. Indispensable Element – is there something you NEED in order to complete the crime? If yes, no attempt d. Probable Desistance – in the normal and ordinary course of events, absent an interruption from an outside force, the crime is likely to be committed e. Abnormal Step – when you go beyond what a normal person would do f. Res Ipsa Loquitor/Unequivocal Test – no one would do this if they were not going to go through with the act g. MPC 5.01, Substantial Step – substantial step strongly corroborative with intent to commit a crime; must purposely engage in conduct ; looks at what you’ve already done (Reeves – rat poison in teachers drink) g1. Things to Consider with Substantial Step 1g. possess materials 2g. at or near scene 3g. no lawful purpose 4g. strongly corroborative of actor’s intent 4. Notes a. Usually preparation is not enough b. Usually words are not enough c. With an omission, must have purpose of result; such as not saving a drowning person—need purpose to let person die B. Conspiracy 1. Mens Rea a. Intent to Agree b. Specific Intent to Commit the Crime c. Under MPC 5.03, also must have intent to aid 2. Notes a. CANNOT have implied malice crime because it lacks specific intent (Swain – drive by shooting, no conspiracry) b. Majority of courts will not infer intent from knowledge but may in some circumstances where: b1. direct evidence b2. circumstantial evidence which consists of his special interest in the crime or the aggravated nature of the crime (Lauria – call girl case, knowledge was there, but not guilty) 2b. Special Interest = -Supplier has stake in venture -No legitimate use for service -Volume disproportionate c. Knowledge of Attendant Circumstances not Required (Feola- just because you didn’t know they were federal officers, still guilty of conspiracy to harm a federal officer) 3. Actus Reus a. Is there an agreement? b. Courts will Consider: b1. Association with Criminals b2. Knowledge of the crime b3. Presence at the Scene b4. Participation in object of Conspiracy b5. Not Spontaneous 4. Elements Under CA Law a. 2 or more persons b. conspire/agree c. to commit any crime d. overt act, committed by one or more parties (not under Common Law) e. in furtherance of conspiracy 5. Pinkerton Doctrine a. Broad reading of conspiracy—everyone involved in conspiracy is guilty of everything if they don’t withdraw, even if there’s no new agreement or if he doesn’t know; essentially you are liable for all that happens out of your conspiracy 6. Hearsay can be used as evidence if it was in the course of conspiracy (Krulewitch – cant use statement because it was made after they were arrested and not in furtherance of the crime) C. Accomplice Liability (Shadow) 1. Mens Rea 2. 3. 4. 5. 6. a. Intent to aid party who committed crime (primary actor) b. Intent that the assistance furthered crime (helped it to succeed) c. Under MPC, need to have purpose of promoting or facilitating the commission of the offense Actus Reus a. Solicitation b. Encouragement c. Actually aiding (Under MPC attempting to aid is enough) d. Omitting where duty to prevent e. Lookout – need prearrangement (Hoselton – boy not lookout because didn’t know friends were stealing stuff) f. Presence at Scene usually not enough (Vaillancourt – guy standing talking while other was breaking into house window) MPC 2.06 Natural and Probable Consequences Doctrine a. An accomplice is liable for the natural and probable consequences of the crime whether the results were intended or not (Linscott – help to rob a bank, corobber shoots someone, guilty) Innocent Agent Doctrine a. If person just an innocent instrument, and theyre the ones who commit the crime, you too will be guilty of the actual crime not just being an accomplice (Bailey – cops were innocent agent, guy was principal Notes a. CANNOT be convicted based on uncorroborated testimony of an accomplice (Helmstein) b. The substantive crime MUST have occurred (Genoa – trying to setup a guy to finance a drug deal but since there really was no deal, no crime) c. Different from attempt in that whatever is required for the crime—be it negligence, recklessness—then that’s enough for accomplice liability too II. Theft A. Larceny 1. Mens Rea a. Intent to PERMANENTLY deprive owner of property at time of taking a1. Borrow, mistake, abandon, intend to pay – not enough a2. Permanent not literal can be asserting ownership (Davis – tried to get refund for shirt off the rack) a3. Court will infer MR if you don’t use due diligence in searching for true owner (Brooks – dirty $) 2. Actus Reus a. Trespassory taking (against others rights) and carrying away (any slight movement will suffice) a1. NOT TRESPASSORY if owner/agent affirmatively delivers property in effort to setup actor (Topolewski – 1 of employees helped load the meat on the truck) a2. leaving house open to be robbed not affirmative 3. Attendant Circumstances a. Without consent of owner a1. Actual Possession = Custody a2. Constructive Possession = who has the right to own the thing a3. Breaking Bail (Mafnas – armored car driver, opens bag, take $) a4. Consent can expire (Pear – horse, supposed to go on journey, never takes journey, sells it instead) b. in possession of another b1. larceny can be committed of lost property as long as it is not abandoned; if you believe or have good ground to believe that the owner can be found 4. Continuing Trepass a. If one takes by trespass but at the time does not have the intent to permanently deprive and then gains that intent later, courts will treat each new moment as a new trespass (Brown – takes bike, then decides to steal, still guilty even though intent to permanently deprive not there at time of trespass) 5. Larceny by Trick a. taking possession of another b. by false representation or deceit c. with the intent to defraud B. Robbery 1. MR/AR a. Taking the property b. From the victim’s person or presence c. By force, fear, violence, intimidation d. With intent to permanently deprive (MR) C. Embezzlement 1. MR/AR a. Fraudulent b. Conversion or Misappropriation c. Of property of another d. Δ already in possession e. Usually entrustment (employer/employee) D. False Pretenses 1. MR/AR a. Take title and possession b. Of property of another c. By knowing and false representation of a material fact d. With intent to defraud (MR)