Law School Outlines - Crim_Law_1

Criminal Law Outline Professor Alice Brumbaugh Spring 2002 Angie Zagami I. Fair Warning A. You should not be held liable for conduct which was not criminal at the time committed B. Public is on constructive notice of what the law is C. Prohibition against retroactive criminalization 1. Judicial creation of common law crimes (reception: 1850) 2. Cases of first impression 3. Reversal or expansion of prior construction D. Prohibition against Vagueness 1. Fair notice—due process demands that a person of ordinary experience be offered a reasonable opportunity to know what is prohibited and act accordingly E. Judicial construction of Statutes 1. An unforeseeable judicial enlargement of a criminal statute, applied retroactively, operates precisely like an ex post facto law, such as Art. I, Section 10 of the Constitution forbids a. Foreseeable change in judicial construction = constitutional b. Unforeseeable change in judicial construction = unconstitutional 2. Rules of Statutory Construction a. Criminal statutes must be strictly construed in favor of Defendant b. With ambiguous statute, court should look to leg. intent (use Common Law, leg history) 3. Void for Vagueness Doctrine (Bowers) a. Penal statute must be sufficiently explicit to inform those who are subject to it what conduct on their part will render them liable to its penalties b. A statute which either forbids or requires the doing of an act in terms so vague that men of common intelligence must necessarily guess at its meaning and differ as to its application violates due process of law F. Adequate Guidelines 1. Statute must provide adequate guidelines to law enforcement officials so that their discretion to arrest someone is not overly broad 2. Crimes of Status a. Crimes that require only that one be something—a vagrant, a common thief, a prostitute—without any proof of specific acts—sleeping in a doorway, picking a pocket, exchanging sex for money b. Punishment of these crimes may constitute cruel and unusual punishment or violate substantive due process requirements c. Model Penal Code 250.6 Loitering or Prowling: A person commits a violation if he loiters or prowls in a place, at a time, or in a manner not usual for lawabiidin individuals under circumstances that warrant alarm for the safety of persons or property in the vicinity. Among the circumstances which may be considered in determining whether such alarm is warranted is the fact that the actor takes flight upon appearance of a peace officer, refuses to identify himself, or manifestly endeavors to conceal himself or any object. Unless flight by the actor or other circumstances makes it impracticable, a peace officer shall prior to any arrest for an offense under this section afford the actor an opportunity to dispel any alarm which would otherwise be warranted, by requesting him to identify himself and explain his presence and conduct. No person shall be convicted of an offense under this Section if the peace officer did not comply with the preceding sentence, or if it appears at trial that the explanation given by the actor was true and, if believed by the peace officer at the time, would have dispelled the alarm. II. Actus Reus and Mens Rea – Conduct element and mental element required in most crimes A. Actus Reus – guilty act -always consists of one or more of the following; 1. Voluntary conduct of Defendant (always) 2. Production of a stated result by Defendant’s voluntary conduct (sometimes; and if required there must be causation) 3. Surrounding circumstances without which Defendant’s voluntary conduct does not meet the definition of the crime (sometimes) a. What is conduct? Physical action, speech 4. Voluntary conduct: consciously willed conduct 5. All of Defendant’s Actus Reus need not be voluntary, liability is based on conduct that includes a voluntary act 6. Rule for Voluntary vs. Involuntary Conduct: If part of Defendant’s conduct is voluntary and part of Defendant’s Actus Reus is involuntary, but if at the time of voluntary conduct there is the requisite Mens Rea there is sufficient voluntary conduct to convict a. A person may be criminally liable for an omission to act, but only if: 7. Defendant has a legal duty (not just a moral duty) to act under the circumstances 8. Defendant must have capacity, means of ability to act; and [not required if you would seriously injure yourself or others] 9. Defendant’s failure to act causes a stated result [Examples of crime by omission: battery (blind man falls into ditch) and arson (legal duty to act when aware the fire has been burning)] a. A person has a legal duty to act when: i. Particular type of (personal) relationship: Common Law family, people in dangerous situations (mt. climbing) ii. Voluntary assumption of care—once you start to help you must continue/finish iii. Contract (on-duty lifeguard) iv. Statutes v. Defendant created the peril vi. Fact that Defendant has a duty to control the conduct of others vii. Fact that Defendant is a landowner B. Mens Rea – mental element of a crime as defined by the criminal offense 1. Negative Mens Rea – lack of justification or excuse; plus 2. Affirmative Mens Rea – mental attitude of Defendant to Actus Reus of offense; must be a. of a required nature (purpose, knowledge, recklessness or negligence) b. an attitude to an element of the Actus Reus of the offense and; c. concur with the Actus Reus of the offense 3. Purpose: A person acts purposely with respect to a material element of an offense when: a. If the element involves the nature of his conduct or result thereof, it is his conscious objective to engage in conduct of that nature or to cause such a result, and b. If the element involves the attendant circumstances, he is aware of the existence of such circumstances or he believes or hopes they exist c. Intentionally or with intent: means purposely d. May be negated by an honest, though unreasonable mistake 4. Knowledge: A person acts knowingly with respect to a material element of an offense when: a. If the element involves the nature of his conduct or the attendant circumstances, he is aware that his conduct is of that nature or that such circumstances exist; and b. If the element involves a result of his conduct, he is aware that it is practically certain that his conduct will cause such result c. May be negated by an honest though unreasonable mistake 5. Recklessness: A person acts recklessly with respect to a material element of an offense when he consciously disregards a substantial and unjustifiable risk that the material element exists or will result from his conduct. The risk must be of such a nature and degree that, considering the nature and purpose of the actor’s conduct and the circumstances know to him, its disregard involves a gross deviation from the standard of conduct that a law-abiding person would observe in the actor’s situation a. Negated only by a mistake which is honest and reasonable 6. Negligence: A person acts negligently with respect to a material element of an offense when he should be aware of a substantial and unjustifiable risk that the material element exists or will result from his conduct. The risk must be of such a nature and degree that the actor’s failure to perceive it, considering the nature and purpose of his conduct and the circumstances known to him, involves a gross deviation from the standard of care that reasonable person would observe in the actor’s situation a. Negated only by an honest and reasonable mistake 7. Mens rea must be appropriate to offense charged—3 possibilities of inappropriateness a. Defendant has Mens Rea appropriate to a criminal offense and commits Actus Reus of a different offense, Defendant’s mental state & voluntary conduct may be so far apart that no conviction of Actus Reus offense is possible b. Defendant has Mens Rea appropriate to a criminal offense, but through mistake or accident commits Actus Reus of an offense which differs only in degree, age category, etc. from offense for which he has appropriate Mens Rea c. Defendant commits Actus Reus of a criminal offense, but does not have Mens Rea appropriate to offense charged or any closely related offense, but perhaps intends to commit an immoral act [ex: seen in statutory rape cases] MODEL PENAL CODE MENS REA Culpability Level Conduct Attendant Circumstances Result Purposely Defendant’s conscious object is to engage in such conduct Defendant is aware or hopes or believes circumstances exist Defendant’s conscious object is to cause this result Knowingly Defendant is aware his conduct is of this nature Defendant is aware the circumstances exist Defendant is aware that the result is practically certain Recklessly Defendant consciously disregards a substantial and unjustifiable risk that he is engaging in this proscribed conduct Defendant consciously disregards a substantial and unjustifiable risk that the proscribed circumstances exist Defendant consciously disregards a substantial and unjustifiable risk that the result will occur Negligently “Grossly” fails to recognize a substantial and unjustifiable risk he is engaging in this conduct “grossly” fails to recognize an unjustifiable risk that the proscribed circumstances exist “grossly” fails to recognize a substantial and unjustifiable risk that the result will occur C. Absolute Liability Offenses 1. No Mens Rea necessary 2. There are no totally absolute liability offenses 3. Constitutionality a. Origin of offense—Common Law or statute b. Severity of punishment imposed c. Language of the statute d. Reasonableness of the standard e. Likelihood of Defendant ascertaining the truth f. Stigma attached to conviction g. Absolute liability is involved in regulations for public health and safety: liquor, narcotics, traffic, food; statutory rape and bigamy; abduction 4. Statutory law for absolute liability a. Arguments FOR: administrative convenience, too hard to prove tort negligence requirements b. Arguments AGAINST: penalties ought to be slight, convicts people without guilt D. Mistake 1. Types of mistake a. Fact—can minimize liability b. Law—other than law which make the Defendant’s conduct criminal i. Non-penal: tort, property, contract (Example: larceny; you believe you own the property); defense ii. Penal law other than immediate offense; no defense (i) Example: you believe your prior conviction was a misdemeanor and it actually was a felony, you still can be convicted of having a concealable firearm as a convicted felon iii. However, if mistake has been on reliance on someone you’re reasonably allowed to rely (like a judge or public official) then it will be a defense iv. Attorneys do not count! 2. When can Defendant’s mistake be a defense to criminal liability? a. Eliminate liability—effect of Mens Rea—defense to criminal liability if it negates the Mens Rea required b. Minimize liability—many not totally eliminate liability 3. MPC 2.04 Ignorance or Mistake a. Ignorance or mistake as to a matter of fact or law is a defense if: i. The ignorance or mistake negatives the purpose, knowledge, belief, recklessness, or negligence required to establish a material element of the offense; or ii. The law provides that the state of mind established by such ignorance or mistake constitutes a defense b. Although ignorance or mistake would otherwise afford a defense to the offense charged, the defense is not available if the defendant would be guilty of another offense had the situation been as he supposed. In such case, however, the ignorance or mistake of the defendant shall reduce the grade and degree of the offense of which he may be convicted to those of the offense of which he would be guilty had the situation been as he supposed. c. A belief that conduct does not legally constitute an offense is a defense to prosecution for that offense based upon such conduct when: i. The statute or other enactment defining the offense is not known to the actor and has not been published or otherwise reasonably made available prior to the conduct alleged; or ii. He acts in reasonable reliance upon an official statement of the law, afterward determined to be invalid or erroneous, contained in (i) a statute or enactment; (ii) a judicial decision, opinion or judgment; (iii) an administrative order or grant of permission; or (iv) an official interpretation of the public officer or body charged by law with responsibility for interpretation, administration or enforcement of the law defining the offense d. The defendant must prove a defense arising under subsection (3) of this section by a preponderance of the evidence 4. Three types of participants in a crime who can be punished: a. 1st degree principal: person committing Actus Reus & Mens Rea b. 2nd degree principal: not voluntary conduct, but present when the crime was committed, aids & abets c. Accessory before the fact: aids or abets though not present at the time of the crime III. Assault, Rape, Bigamy and Other Related Offenses A. Assault 1. Criminal Battery: an unprivileged touching of another which is either (a) intentional, or (b) unintentional, but the result of ‘reckless’ conduct of Defendant or possibly (c) unintentional, but the result of Defendant’s commission of an unlawful act which did not involve ‘recklessness’ a. Actus Reus: touching b. Mens Rea: intentional, reckless, result of an unlawful act 2. Attempted Criminal Battery: requires that (a) there be an attempted unprivileged touching of another which comes near to achieving its objective and (b) that Defendant (actually) intends to commit a battery, and possibly (c) that Defendant must have the present ability to commit a battery when the touching is attempted [requirement (c) not in Maryland] a. Actus Reus: attempted touching b. Mens Rea: intent 3. Civil or tort assault: conduct by Defendant which places Victim in (prospective) reasonable apprehension of immediate bodily harm, and Defendant must intend his conduct to cause such apprehension or such harm [not recognized by all jurisdictions] a. Actus Reus: Defendant’s voluntary conduct and production of the stated result b. Mens Rea: Intent 4. What is a touching? a. Direct: hitting someone yourself or with an object—battery b. Indirect: hitting horse causing rider to be thrown and injured—battery c. In Maryland, offensive touching is a battery d. Other battery situations: poisoning, creating a situation where Victim injures himself 5. What is unprivileged? a. Three categories where you are not criminally liable for assault: i. Justification: self-defense, necessity, defense of others ii. Excuse: infancy, insanity, duress iii. Privilege/Consent of Victim b. Rape c. Larceny (Common Law) c. Consent of the victim is a defense in ordinary physical contact blows incident to sports sanctioned by the state: football, boxing, wrestling, etc. (fighting beyond what is customary is battery) 6. When is there consent? a. If touching is injurious, consent is not a defense b. If touching is offensive, consent is a defense 7. Model Penal Code 211.1 Assault a. Simple assault. A person in guilty of assault if he: i. Attempts to cause or purposely, knowingly or recklessly causes bodily injury to another; or ii. Negligently causes bodily injury to another with a deadly weapon; or iii. Attempts by physical menace to put another in fear of imminent serious bodily harm. iv. Simple assault is a misdemeanor unless committed in a fight of scuffle entered into by mutual consent, in which case it is a petty misdemeanor b. Aggravated assault. A person is guilty of aggravated assault if he: i. Attempts to cause serious bodily injury to another, or causes such injury purposely, knowingly or recklessly under circumstances manifesting extreme indifference to the value of human life; or ii. Attempts to cause or purposely or knowingly causes bodily injury to another with a deadly weapon. iii. Aggravated assault under paragraph (i) is a felony in the second degree; aggravated assault under paragraph (ii) is a felony of the third degree iv. Maryland specifies a limited nature for aggravated assault B. Rape (Common Law felony)—Common Law rape is unlawful sexual intercourse engaged in by a male person with a female person (by force and) without her consent 1. Elements of rape a. Unlawful—extramarital b. Sexual intercourse—vaginal with penetration (Defendant-male; Victimfemmale c. Force—outright physical force, imminent threat of force i. MD—force is a separate Actus Reus offense ii. Does psychological force count? Some juris. (MD) say ‘yes’ d. Without consent (unconscious or mental incapacity) 2. Actus reus a. Sex b. Force 3. Mens rea a. Sex & force: intent (MPC purpose) b. Unlawfulness: recklessness/purpose c. Without consent: Majority—recklessness, Minority— purpose/knowledge 4. Circumstances: unlawful, without consent, female/male 5. In cases of mistaken belief in Mens Rea for lack of consent, recklessness/negligence a. Honest and reasonable—defense b. Defendant has duty to ascertain consent and woman has duty to make lack of consent clear 6. Changes in Consolidated Sex Offense Statutes a. Rape divided into degrees b. Includes statutory rape c. Includes deviant sex offenses (forcible) d. Establishes degrees of sex offenses e. Gender neutral f. Eliminate marital exemption (in MD there are exceptions) g. Rape Shield Statutes i. Before this, Defendant could show court record of Victim’s prior sexual history ii. Now, precluded from showing evidence to Victim’s history but in limited cases the judge may allow the evidence as exception C. Statutory Rape—(may be a felony or misdemeanor)—unlawful sexual intercourse engaged in by a male person with a female person who is below the age set by the statute (anywhere from 10-18) 1. Unlawful—extramarital (Mens Rea—purpose/recklessness) 2. To negate the crime, need an honest and reasonable mistake 3. The age requirement (different views) a. Age is a matter of strict liability b. Defendant’s mental state should be considered, it is not strict liability concerning age; he knew he was doing something wrong and took the risk which qualifies as Mens Rea D. Bigamy—(statutory; may be a felony or a misdemeanor): Bigamy is the purported marriage of another spouse by a married person 1. Actus Reus: marriage ceremony 2. Mens Rea: knowledge or purpose 3. Surrounding circumstances: being married to someone else 4. In Maryland, matter of strict liability (In other courts minimum Mens Rea is recklessness) 5. MPC 230.1 Bigamy and Polygamy a. Bigamy. A married person is guilty of bigamy, a misdemeanor, if he contracts or purports to contract another marriage, unless at the time of the subsequent marriage: i. The actor believes that the prior spouse is dead; or ii. The actor and the prior spouse have been living apart for five consecutive years throughout which the prior spouse was not known by the actor to be alive; or iii. A Court has entered a judgment purporting to terminate or annul any prior disqualifying marriage, and the actor does not know the judgment to be invalid; or iv. The actor reasonably believes that he is legally eligible to remarry b. Polygamy. A person is guilty of polygamy, a felony in the third degree, if he marries or cohabits with more than one spouse at a time in purported exercise of the right of plural marriage. The offense is a continuing one until all cohabitation and claim of marriage with more than one spouse terminates. This section does not apply to parties of a polygamous marriage, lawful in the country of which they are residents or nationals, while they are in transit through or temporarily visiting this State. c. Other Party to Bigamous or Polygamous Marriage. A person is guilty of bigamy or polygamy, the case may be, if he contracts or purports to contract marriage with another knowing that the other is thereby committing bigamy or polygamy. E. Abduction is the taking of an underage girl from the custody of her parents without permission 1. Statutory: felony or misdemeanor; sometimes strict liability as to age a. Alternate views: i. Age is a matter of strict liability ii. Mens Rea required, but by taking the girl without the consent of the father, he had the knowledge he was doing something wrong which is sufficient Mens Rea IV. Larceny and Other Theft Offenses A. Common law larceny—(c.l. felony)—the taking and carrying away of personal property from the possession of another with the intent to permanently deprive that other there of without claim of right 1. Elements of larceny a. Possession i. Actual legal possession—exclusive physical dominion and control of a thing combined with the manifested intent to exclusively control the thing on the possessor’s own account and in his own name ii. Custody (de facto possession)—exclusive physical dominion and control of a thing (no mental element) iii. Constructive legal possession—what actual legal possessor has after someone else acquires custody, but not legal possession of the thing 2. Crime against possession, not ownership; examples a. Book on table, pick it up with intent to use it for own benefit—actual legal possession b. I have briefcase, someone drops book in, I close it and leave with no knowledge book is in there—custody c. I go to professor after class, she hands me book in order to point out a problem (I have custody); she has constructive legal possession 3. Actus Reus of Larceny a. Voluntary conduct: taking and carrying away b. Surrounding circumstances: from possession of another without consent (trespass); personal property c. Taking i. Defendant must have acquired actual legal possession of thing stated to be taken ii. Dominion and control with intent to exercise property for own interest iii. Must be removed from where fastened or off person to whom attached iv. There is a taking if Defendant has someone else (innocent agent—with honest belief Defendant is owner) obtains the object for him/her v. Taking can occur, even if only for a few seconds d. Asportation (carrying away) i. MD/MPC eliminate asportation requirement ii. Modern: Slightest carrying away movement is enough iii. Must have a taking first iv. Prior construction: every atom of the thing must be moved from its original position v. It is not common law larceny where Victim voluntarily handed over actual legal possession and title transferred e. Trespassory: from the legal possession of another and without their consent f. Property Subject to Larceny i. Tangible personal property (of another), capable of being possessed, of at least some value ii. Intangibles: stocks, bonds, promissory notes (no value themselves but represent a value) iii. Land is not subject to common law larceny because it cannot be carried away iv. Things not subject to c.l. larceny except by statute: abandoned property, wild animals, pets, gas and electricity, joint ownership of property, wife and husband The Apple Hypothetical: O owns Blackacre, on Blackacre there is an apple tree, under the tree are: apples fallen from the tree; and apples picked by O and left on the ground, then Defendant comes back to Blackacre and picks more apples from the tree and leaves them on the ground until he can get a basket to carry them in and Defendant picks even more apples which he carries away with him when he goes to get the basket. Defendant returns and carries away the first three sets of apples in the basket. (a) Tree=real property, no larceny because apple is connected to tree, never in O’s possession (b) Apples picked by O and left on ground=when picked became O’s property, no evidence that O abandoned them so Common Law larceny (c) Apples picked by Defendant and left on ground=on O’s land, Common Law larceny (d) Apples fallen from tree=lying on O’s land, so Common Law larceny 4. Mens Rea of Larceny a. Affirmative—minimum knowledge, state of mind toward Actus Reus b. Special—intent to permanently deprive i. Intent to deprive Victim, not benefit Defendant ii. Intent to destroy is an intent to deprive iii. MPC purpose c. Permanently i. Forever, or deprivation for an unreasonable period of time from Victim of all or substantial value of the property ii. Intent to use temporarily than abandon d. Where Defendant has an intent to return the property unconditionally within a reasonable period of time, no Common Law larceny because no intent to deprive permanently i. Where Defendant creates an unreasonable risk of permanent deprivation to Victim, Common Law larceny because of inferred intent to permanently deprive ii. Where Defendant takes something and returns it on a condition he has no right to impose, Common Law larceny because intent to permanently deprive e. Without Claim of Right i. Another special Mens Rea: purpose or knowledge ii. Claim of right is a Mens Rea defense to CL larceny: iii. But only when it is honest/bona fide claim iv. Honest (though unreasonable) mistake of fact will negate v. Not a defense to Common Law robbery f. Is it theft if you take property from someone but pay for it? If property is clearly for sale, and you pay, then you have a claim of right (also depends on value of property to the true owner) 5. Maryland/MPC Theft Statutes a. § 342 Theft i. Obtaining or exerting unauthorized control—A person commits the offense of theft when he willfully or knowingly obtains control which is unauthorized or exerts control which is unauthorized over property of the owner, and ~ Has the purpose of depriving the owner of the property; ~ Willfully or knowingly uses, conceals, or abandons property in such manner as to deprive the owner of the property; or ~ Uses, conceals, or abandons property knowing the use, concealment, or abandonment will probably deprive the owner of the property b. §341 Acts Constituting Theft: Conduct designated as theft in this subheading constitutes a single crime embracing, among others, the separate crimes heretofore known as larceny, larceny by trick, larceny after trust, embezzlement, false pretenses, shoplifting, and receiving stolen property. B. EXTENSIONS OF Common Law LARCENY & NEW STATUTORY CRIMES -Scope: It is essential to Common Law larceny that Defendant take the property in question from the possession of another with a concurrent intent to steal; includes the following situations: 1. Cases in which Defendant obtains physical control of the property with innocent intent and thereafter misappropriates it (Common Law larceny, embezzlement, larceny after trust, larceny by bailee) 2. Defendant is a fiduciary a. Fiduciary—Defendant is a fiduciary if the business he/she transacts or the money or property he handles is not for his own benefit, but for the benefit of another with whom he is in a relationship implying and necessitating great confidence and trust on one part and a high degree of good faith on the other b. Defendant is a servant who obtains physical control from Victim and misappropriates [Defendant gets custody, Victim keeps constructive legal possession, Defendant’s misappropriation is Common Law larceny] c. Defendant is a servant who obtains physical control from a third party for Victim or for Victim’s benefit i. If Defendant, before misappropriating, puts the property in a place where as a servant, it is his duty to put it for the master, master (Victim) gets legal possession and Defendant only has custody; misappropriation is Common Law larceny ii. If Defendant misappropriates property before putting it in Victim’s legal possession, Defendant has actual legal possession— not Common Law larceny; today it is embezzlement if ~ There is an embezzlement statute; and ~ Defendant is a fiduciary of the kind mentioned in the statute 3. Defendant is a fiduciary other than a servant who obtains physical control of property from Victim or from a third party for Victim a. From third party for Victim—Defendant gets actual legal possession, no Common Law larceny; today it is embezzlement if i. There is an embezzlement statute; and ii. Defendant is a fiduciary of the kind mentioned in the statute b. From Victim—Defendant gets actual legal possession, misappropriation is not Common Law larceny, today it is larceny by trust if i. There is an embezzlement statute; and ii. Defendant is a fiduciary of the kind mentioned in the statute 4. Defendant is a fiduciary who obtains both title to and possession of property from Victim or from a third party for Victim a. Defendant is not a fiduciary—Defendant is a bailee or finder or taker by trespass without concurrent intent to steal [Defendant is not guilty of any aforementioned offenses, only get him for larceny by false pretenses (possibly) or fraudulent conversion (possibly)] 5. Bailee: a bailment is the rightful possession of personal property by one who is not the owner, and who is under a duty to account for the goods as the property of another, to restore original goods to the bailor, or to a third party directed by the bailor, as soon as the purpose of the bailment is complete a. Carrier’s Case: If there is a bailment, and the bailment terminates and then bailee misappropriates he is taking from constructive/actual possession—Common Law larceny; here breaking the bales with intent to misappropriate terminates the bailment b. Breaking bulk: Taking some (but not all) of an item sold by weight or volume is breaking bulk (i.e. pig iron, grain, interchangeable goods) and is Common Law larceny i. Items sold by count, not bulk, no Common Law larceny 6. Taker by trespass without concurrent intent to steal a. i.e.—go to friends house, borrow lawn mower, but later decide to keep it—trespass b. theory of continual trespass i. where Defendant takes and carries away without the intent, he is deemed to have continually trespassorily taken and carried away…when the intent develops it concurs with the taking and carrying away c. Defendant intentionally takes the property i. Misappropriate is Common Law larceny ii. Defendant has intent to return property in a reasonable time, misappropriation is larceny as soon as intent to steal develops d. Defendant innocently takes the property i. With claim of right, misappropriation is not a felony ii. Can be a trespassory taking as soon as intent to steal develops 7. Earmarked funds a. Actual thing is to be transferred to a party (i.e. actual bills) b. A gives B $100 to pay to C, i. B takes physical poss. with innocent intent then misappropriates ~ If a servant—B has custody, Common Law larceny ~ If a fiduciary for A—larceny after trust ~ If a fiduciary for C—embezzlement ~ If a bailee—larceny by bailee ii. B acquired bills with intent to misappropriate, larceny by trick 8. Finders a. Finder has a right to possession against all but the true owner or prior possessor b. If true owner could be discovered… i. And Defendant picks it up intending to keep it—Common Law larceny ii. And Defendant picks it up intending to return it, but later decides to keep it—not Common Law larceny because item rightfully came into possession (could be larceny by bailee) 9. Misdeliveries a. A knows mistake and takes it anyway—Common Law larceny b. A knows mistake, intends to return it, later changes mind—not Common Law larceny, maybe larceny by bailee 1. Mistake as to identity of property (sovereign really a shilling) a. Can’t possess what you do not know you have b. Only get custody, when discovered owner has Constructive Legal Possession, Common Law larceny c. C. Cases in which Defendant obtains physical control of property having ‘fraudulent’ intent or ‘intent to steal’ at time of taking (Common Law larceny—larceny by trick; false pretenses) 1. Larceny by trick: a. Can be committed only if Defendant obtains only physical control (not title as well) with ‘intent to steal’ [form of Common Law larceny] and meets requirements for larceny by trick… b. Defendant must obtain only physical control of the property in question c. Defendant must obtain physical control of the property in question from Victim ‘by trick’ (sometimes oral or written misrepresentation of past or present fact) d. Normally there is a later conversion…but this is evidence of fraudulent intent but not a conclusive showing e. If Defendant obtains only physical control with ‘intent to steal’ he cannot be guilty of embezzlement, larceny after trust, or larceny by bailee 2. False Pretenses: a. Defendant must obtain title to, as well as possession of property from Victim by knowingly making a false representation of material past or present fact with intent to defraud and Victim in fact must be defrauded i. Representation can be oral, written, silence (failure to inform), misrepresenting yourself as someone else (conduct) ii. Representation must be false ~ At time made and when Victim passes title to Defendant ~ NOT false pretenses if false when statement made but valid when Victim passes title to Defendant ~ If statement true at time it is made and false when title passes, for false pretenses Defendant would have to know it was false and Victim relied b. Does not include false promises, only criminalizes false misrepresentation that Victim reasonably relied on c. Claim of right is a defense d. Intent to repay money obtained by false pretenses—not a defense D. Robbery Common Law felony—Common Law larceny from the person or in the presence of the victim by violence (force) or intimidation 1. Elements a. Must have Common Law larceny b. Intimidation—for Defendant’s conduct to constitute intimidation, it must be such as to put Victim in fear of immediate bodily injury or death to Victim himself, or to a member of Victim’s family, or to someone in Victim’s company at the time, or, possibly threat of immediate harm to a dwelling house c. Unconscious victim i. If Defendant caused helpless state and takes from Victim— robbery ii. If Defendant did not make Victim unconscious and steals— larceny d. In the presence: property is taken from the “presence of another” when it is so within the victim’s reach, inspection, or observation that he or she would be able to retain control over the property but for the force, threats, or intimidation directed by the perpetrator against the victim e. No robbery if one kidnaps you, while the other steals f. Violence or intimidation must precede or concur with the Actus Reus E. Common Law Extortion -Corrupt taking or collection of a fee by a public official under the color of his office where no fee is due or not so large a fee is due or the fee is not yet due 1. Public official is the only criminal 2. Example: public official says give me money or I’ll put you in jail F. Common Law Bribery -Giving or taking a bribe (something given for the purpose of improperly influencing official action) 1. Voluntary, both parties guilty 2. Compliments Common Law extortion G. Statutory Extortion (Blackmail) 1. Usually a felony, maybe a misdemeanor 2. Consists in either a. Obtaining money or other property by means of an unlawful threat; or b. An unlawful threat made for the purpose of obtaining money or other property (even if not obtained) 3. Elements: a. Object of extortion: money, property, or anything of value, or to compel Victim to do an act against his will b. Threat could be written, oral, or conduct c. Future threats can only be statutory extortion 4. Threat to disclose Victim’s disgraceful secret—extortion 5. Claim of right NOT a defense H. Forgery 1. Common Law misdemeanor, today a felony 2. The fraudulent making of a false writing having apparent legal significance (even if you never use it to defraud 3. Uttering: offering as genuine a forged instrument 4. Elements a. False writing: must be written, writing itself must be a lie (Examples…making a writing and signing Victim’s name, sign check of Victim’s account with Victim’s name, sign a writing with a fictitious name, material alterations in document executed by Victim) b. Legal significance: document can be a foundation for legal liability c. Intent to defraud must be present, regardless of anyone actually being defrauded I. Receiving Stolen Goods 1. Person will be punished for receiving stolen goods 2. If he knew that a larceny had been committed but agreed not to report or prosecute it in return for something of value (say, a lower price for the goods), he was guilty of compounding the crime 3. Failure to make a timely report to authorities that felony had been committed was known as misprision of felony J. CONSOLIDATED THEFT STATUTES, M.P.C. 223 V. CRIMES AGAINST HABITATION A. Arson -Common Law felony -The malicious (willful and malicious) burning of the dwelling of another 1. Elements a. Dwelling house—place of residence, occupied by a human being at night as a place to sleep, don’t have to be there all the time—must have intent to return i. Other building ‘within the curtilage’ of the dwelling house where human being could be found time to time ii. ‘Within the curtilage’—reasonably near to the dwelling house, public highway severs the curtilage iii. not a dwelling until people have moved in iv. can be a mobile home or a car regularly used to sleep in as a dwelling b. Of Another—possession or occupancy and not title determine whose house a building shall be i. Removed in statutes concerning fires for insurance ii. Tenant—still has a dwelling, burning it is arson, also depends on danger to other tenants c. Burning—there must be actual wasting or charring of some part of the wood or other combustible fabric of the house i. Scorching and blackened by smoke are not enough ii. Fire must be to the structure of the building ~ Built in/out fixtures are structural: cabinets, doors ~ Removable things NOT structural: window shutter(?), couch iii. Explosion which does not burn anything (not Common Law arson); but statute bring it under arson category 2. Mens Rea—malice a. Two requirements i. Defendant intentionally set the fire (purpose/knowledge/depraved heart recklessness) without justification, excuse, or mitigation ii. Intent to cause burning of dwelling of another; or creates a fire hazard to dwelling of another b. Omission to act: i. One accidentally sets a fire and walks away not knowing—no arson iii. If person aware he caused the fire and walks away—arson; caused the peril and therefore has a duty to act iv. Justification, Excuse, Mitigation (?) ~ If Justification = no crime ~ If Excuse = no liability for crime ~ If Mitigation=lower penalty for crime B. Malicious Mischief—Common Law misdemeanor, any malicious destruction of, or damage to, the property of another, real or personal, which is not Common Law arson C. Houseburning—Common Law misdemeanor, the intentional burning by one of his own dwelling house, if house is situated in a city or town or so near to other houses as to create danger to them D. Burglary -Common Law felony -The breaking and entry of the dwelling of another in the nighttime with the intent to commit a felony therein 1. Elements a. Dwelling house—same as arson requirements, except dwellings (i.e. apartments) are considered separate (Also businesses, cars, ships) b. Trespassory—without consent of possessor of house (consent is a defense) c. Breaking—a barrier to entry is removed i. Breaking IS: opening an unlocked door, widening an already open door, thru a window, servant/employee with key to house without permission to be there at night ii. Breaking IS NOT: entering an open door, breaking out (unless by statute) iii. Constructive breaking: opening procured by some fraudulent device, trick, fraud, threat of violence, co-conspirator inside dwelling, thru chimney d. Entering—some part of intruder’s body must pass the barrier i. Breaking and entering do not have to occur on the same night ii. Entering must follow the breaking iii. Entry must be made through the opening caused by the breaking iv. Can be any part of the intruder’s body v. Tool or innocent agent to effect the breaking does not count as ‘entering’ vi. Felonious tool—any tool with object to commit the felony will be entering vii. If Defendant shoots a bullet through window to kill, both breaking and entering even if no death viii. Monkey trained to steal from house e. At night—Common Law sunset to sunrise i. Can be changed by statute ii. If there was enough daylight to make out the countenance of a human being it is not nighttime f. Felonious intent—all Common Law and statutory felonies (the misdemeanor of Common Law larceny is a felony for purposes of Common Law burglary) i. Felony need not be completed or attempted ii. Don’t have to prove the felony—can be arrested for the breaking and entering because jury could reasonably find felonious intent iii. Defendant does not need to know that what he is doing is felonious iv. Intent to commit the felony must concur with the breaking and entering v. If once inside the house Defendant commits a felony that was not originally intended, or if only wanted to commit a misdemeanor NO Common Law burglary g. Therein—inside the dwelling house (Exceptions: break and enter to use house to shoot someone on street; break and enter and rape girl on roof) 2. Statutory changes eliminated nighttime, breaking, from definition; expanded dwelling E. Housebreaking—Common Law misdemeanor, the breaking and entry of the dwelling of another (no nighttime requirement), no requirement of intent to commit a crime therein F. False Imprisonment—Common Law misdemeanor, intentional and unprivileged confinement of another person 1. Confinement: don’t have to touch Victim, can use physical force or exerted authority or deception (i.e. police officer costume) 2. Mens rea—courts differ on whether Defendant has to know the imprisonment is unprivileged G. Kidnapping 1. Common Law misdemeanor, statutory felony 2. Forcible abduction or stealing away of a person from his own country and taking or sending him into another country 3. Elements a. Common Law—forcible abduction and asportation b. Today—forcible abduction and transport/confine within your jurisdiction c. Mens Rea—courts differ on whether Defendant must know abduction is unprivileged 4. Penalties are increased for aggravating factors: ransom, to advance a felony, hostage, harming Victim (question of when/what harm) VI. HOMICIDE -Killing (causing the death of) another human being [by action, words, failure to act] A. Innocent homicide—homicide which is justifiable or excusable, matter of Mens Rea B. Criminal homicide—homicide without lawful justification or excuse; either murder or manslaughter (both are Common Law felonies) C. Murder—homicide committed without justification, excuse or mitigation and with malice aforethought, i.e. 1. Defendant has intent to kill; or 2. Defendant has intent to cause serious bodily harm; or 3. Defendant has acted with depraved heart recklessness; or 4. Defendant has caused death in commission of a felony and felony murder rule applies 5. Mens Rea – intent (purpose and knowledge D. Manslaughter—homicide committed without justification, or excuse and without malice aforethought; 1. Circumstances which constitute malice exist, but there is mitigation [voluntary]; or 2. No circumstances constituting malice exist [involuntary—could occur due to MPC recklessness or intent to cause non-serious bodily harm] 3. Examples of mitigation: provocation, self-defense 4. Mens Rea – atleast recklessness E. Burden Shifting Framework: Intent to kill—Common Law includes MPC purpose and knowledge 1. Operated with certain presumptions—if there is intent to kill or cause serious bodily harm it is presumptively murder (no justification or excuse) 2. If Defendant shows justification or excuse, burden shifts back to the state 3. State has burden of persuasion, beyond a reasonable doubt 4. *In CA, burden is on Defendant if murder is a statutory crime F. Murder Gradation 1. Ascending ladder of culpability a. Non-criminalCriminal manslaughter: state must prove killing was not justified or excused b. Manslaugher2nd degree murder: state must further establish killing was not mitigated (presumption of malice kicks in because there is no J, E, M) c. 2nd degree murder 1st degree murder: state must further establish premeditation and deliberation G. Grading of Murder/Manslaughter 1. If there is an intent to kill or cause serious bodily harm it is automatically 2nd degree murder 2. If state shows all elements are present, can be changed to 1st degree murder 3. If Defendant can prove mitigation, charge may be lowered to manslaughter (when there is malice but mitigation, or malice exists but no criminal recklessness) H. First Degree Murder 1. 1st degree murder (standard pattern)—all murder which shall be perpetrated “by poison, or by lying in wait or by any other kind of willful, deliberate or premeditated killing” or which shall be committed in the perpetration or attempt to perpetrate [stated felonies: rape, robbery, arson, etc.] I. Maryland Annotated Murder Statutes 1. MD Code Ann. Art. 27 § 407: All murder which shall be perpetrated by means of poison, or lying in wait, or by any kind of willful, deliberate, and premeditated killing shall be murder in the first degree 2. MD Code Ann. Art. 27 § 408: All murder which shall be committed in the perpetration of, or attempt to perpetrate, arson in the first degree shall be murder in the first degree. a. MD Code Ann. Art. 27 § 409: All murder which shall be committed in the burning or attempting to burn any barn, tobacco house, stable, warehouse or other outhouse, not parcel of any dwelling house, having therein any tobacco, hay, grain, horses, cattle, goods, wares, or merchandise, shall be murder in the first degree. b. MD Code Ann. Art. 27 § 410: All murder which shall be committed in the perpetration of, or attempt to perpetrate, any rape in any degree, sexual offense in the first or second degree, sodomy, mayhem, robbery…, carjacking or armed carjacking, burglary in the first, second or third degree…destructive devices, kidnapping…, or in the escape in the first degree or attempt to escape in the first degree from the Patuxent Institution, any institution or facility under jurisdiction of the Division of Correction or the Division of Pretrial Detention services, or from any jail or penal institution in any of the counties of this State, shall be murder in the first degree c. MD Code Ann. Art. 27 § 411: All other kinds of murder shall be deemed murder in the second degree. 3. Note difference between standard pattern and MD Annotated: elimination of the word “other” means by poison and lying in wait must also be willful, deliberate, and premeditated 4. Willful—MPC purpose—conscious objective of causing death a. Deadly Weapon Rule—jury can draw an inference (S.C. ruling) that pointing a deadly weapon at a vital part of the human anatomy that Defendant had intent to kill (or further MPC purpose) 5. Deliberation—requires Defendant to consider pros and cons of killing in a “cool” state of mind (not formed in passion or while intoxicated) 6. Premeditation—means Defendant thought about killing beforehand (design, determination to kill) a. Courts differing opinions i. Some courts say there is no set time that must occur between the premeditation and the killing (may be as instantaneous as successive thoughts of the mind) ii. Other courts say there must be an appreciable time to show deliberation in a “cool” state of mind 7. CA courts: to show Defendant was willful, deliberate, premeditation there must be evidence of planning, motive, or manner of killing showing w, d, p 8. Supreme Court Test to Determine Imposition of the Death Penalty: are there aggravating circumstances, i.e. multiple murders, murders likely to cause many deaths (like setting a bomb)…if so, look to see if there are mitigating circumstances J. Intent to Cause Bodily Injury 1. Serious bodily harm: harm that is permanent or dangerous, including any harm which is sufficient to seriously interfere with the victim’s health or comfort 2. Objective test: whether a reasonable person in Defendant’s place would contemplate the serious bodily harm as the natural and probable result of his actions 3. Subjective test: did this particular Defendant realize at the time the likelihood of serious bodily harm a. Used in England b. You can’t have presumption, only inferences to come to a guilty verdict K. Reckless Killings – requires more than tort negligence (usually manslaughter) 1. The risk must be greater than tort negligence or unreasonable and unjustifiable -the jurisdiction either requires either MPC recklessness (conscious risk assumption) or MPC Negligence (should be aware of risk and gross deviation from standard of care) ---risk analysis . . . a. look at societies use of Defendant’s conduct b. look at the surrounding circumstances of Defendant’s conduct i. foreseeable harm c. look at precautions defendant could have taken to minimize risk or potential harm 2. Distinguish between advertence and inadvertence; may affect the jury decision a. advertence – risk is at forefront of Defendant’s mind b. inadvertence – Defendant as a general principle is aware of the possible risk, he is aware but is not thinking about it or thinks it does not exist 3. Wanton and Reckless (some jurisdictions)– grave danger must be apparent and the defendant must have chosen to run the risk rather then alter his conduct i. subsequent voluntary act constitutes intentional ii. if he consciously assumes the risk of the danger (~MPC Recklessness) iii. whether a reasonable man would be aware of the danger (~MPC Negligence) Distinguished conscious risk assumption v. creation of danger L. Depraved Heart Killings – deliberate creation of danger, with no attempt to minimize the risk; complete disregard for the life of others 1. Model Penal Code – Defendant knowingly engages in conduct causing death which in light of the circumstances is reckless to a point that it manifests an extreme indifference to the value of human life a. extreme indifference to human life constitutes malice and is enough for 2nd degree murder, and sometimes, 1st degree murder (statutes include this) VII. Defenses A. Provocation (mitigation) 1. Elements of Provocation a. There must have been adequate provocation (objective test) b. Killing must have been in the heat of passion (subjective test) c. Heat of passion must be sudden (objective test) d. Causal relationship among 1-3 2. Really only relevant to murder cases 3. Legally adequate provocation: catching spouse in act of adultery, mutual affrays, one person hits another, at Common Law unlawful arrest (today there is no privilege to resist arrest) 4. MPC 210.3(1)(b) suggests that murder should be reduced to manslaughter when the homicide occurs “under the influence of extreme mental or emotional disturbance for which there is reasonable explanation or excuse.” Such reasonableness is “determined from the viewpoint of a person in the actor’s situation under the circumstances as he believes them to be.” a. More expansive view than Common Law b. Look at heat of passion vs. “slow burn” where passion builds over time 5. Words and Provocation a. Common Law—words alone do not constitute (legally adequate) provocation no matter how nasty they are b. Informational words may be deemed legally sufficient: i.e. someone tells Defendant that wife and third party committed adultery 6. Problem: to what extent do we take personal characteristics of Defendant into account: a. Defendant—age, alcoholic, physical defects, etc. b. Even if court takes individual characteristics into account, will not judge a person with a vile temper against another person with a vile temper (will use reasonable person) B. Justification – occurs at the time the act takes place 1. Accused did the right thing—he was entitled to commit the Actus Reus 2. Accomplice Rules a. When Defendant has justification defense, accomplice has not criminal liability b. Defendant has excuse defense, Defendant not criminally liable but accomplice could be criminally liable if he does not have j/e of his own 3. Self Defense – a threat of “imminent” unlawful, serious bodily harm, to which there are, or appear to be, no available alternatives to the defendant except the use of force a. retreat – must retreat before using deadly force b. castle rule 4. Necessity – a threat of imminent injury to the person or property for which there are no (reasonable) alternatives except the commission of the crime; a. the Defendant’s act must prevent an equal or more serious harm (balance) b. the Defendant must not have created the conditions of his own dilemma 5. Law Enforcement a. Arrest i. Non-Deadly Force – police can use non-deadly force when they reasonably believe it necessary to make a lawful arrest for any crime, including a felony or a misdemeanor. ii. Deadly Force – Police can use deadly force if they reasonably believe it is necessary to prevent a felon from escaping arrest. [deadly force cannot be used to prevent a misdemeanor] b. Resisting Arrest – at common law, a person can resist an unlawful arrest. The modern rule states that you should submit to arrest and resolve in a civil action if arrest was unlawful 6. Prevention of a Crime – Model Penal Code authorizes the use of force when the actor believes it is immediately necessary to prevent suicide or serious self injury, a crime involving or threatening bodily harm, damage to property, or a breach of the peace subject to limitations a. Deadly force is NOT justified unless the actor believes i. there is a substantial risk of injuring innocent people; or ii. the use of deadly force is necessary to suppress a riot or mutiny after the rioters (or mutineers) have been told to disperse and warned that deadly force will be used 7. Protection of Property– a defendant has the legal right to use non-deadly force when he has an honest and reasonable belief that it is necessary to protect real or personal property in his possession from imminent and unlawful taking, damage, dispossession or trespass. a. Personal Property – a person may use non-deadly force to protect personal property b. Real Property i. Dwelling – most jurisdictions allow the use of deadly force to prevent forcible entry into a dwelling, provided a warning had been given not to enter (usually only if someone is inside) ii. Mechanical Devices – spring guns and the like can not be used to protect property because they could harm innocent people (firefighters, children) 8. Protection of Others – The right attaches to the Defendant IF the person he is defending would have the right to self defense (this does not count to a lawful arrest) a. Reasonable Belief test – Defendant is allowed to defend another if it reasonably appears necessary C. Excuse 1. Defendant has an explanation which makes it unfair and pointless to hold him fully accountable 2. Duress -a well founded fear generated by a threat from a human being of an imminent serious bodily harm or death to himself (or sometimes a near relative) not being of his own doing a. Model Penal Code applies the test of imminent threat that a person “of reasonable firmness” would yield under the circumstances 3. Insanity – legal definition to determine criminal liability a. Fitness to stand trial – Defendant must be legally competent to stand trial i. competency to understand proceedings against him ii. able to assist in his defense to a degree of rational understanding b. Criminal Responsibility i. if Defendant is found criminally responsible and punishment is execution, must determine if Defendant is mentally fit to be executed; defendant must understand the impending sentence and the reason for it ii. If Defendant is not criminally responsible (insanity defense) he will ordinarily be committed to a mental institution and his mental state will be reviewed to determine when he is ready for release (no harm to himself or others) c. Various Insanity Tests i. McNaughten Test -At time of committing the act, Defendant was laboring under defect of reason, from disease of the mind, as not to know the nature and quality of the act, OR if he did know it, he did not know what he was doing was wrong; strictest test from Defendant’s point of view ---Often called the “Wrong Test” – it is left unclear as to whether morally wrong or legally wrong ii. Irresistable Impulse Test – Defendant could not control the urge to act, even if he knew it was wrong – complete destruction of the governing power of the mind – often used as a supplement to the McNaughten Test iii. Durham Test – Product Test/But For Test – Defendant had a disease of the mind and his criminal conduct was the product of a defect: but for reasoning which is rarely adopted because mental defect can be but for cause of almost any behavior (most favorable test from the Defendant’s point of view) iv. Model Penal Code – If when the Defendant commits an act, as a result of mental disease or defect, he lacks the substantial capacity to appreciate his conduct, or conform it to the law ---Introduces the aspect of relativity (replaces know with appreciate); sociopaths not excused v. New Federal Test – Due to a sever mental disease, Defendant is unable to appreciate the nature and quality of the wrongfulness of his acts; it is an affirmative defense, Defendant has the burden of proof by clear and convincing evidence; sociopaths not excused d. Possible Verdicts i. Not Guilty by Reason of Insanity (complete excuse) – no criminal responsibility by Defendant, Defendant will usually be placed in a mental institution for criminally insane for indefinite period of time ii. Guilty But Insane – no criminal responsibility, but there will be civil detriments attached, receives same prohibitions accompanying a criminal record (cannot vote . . . ) iii. Guilty But Mentally Ill – not excused by insanity, sentenced for crime, but treated for mental illness while in jail D. Coercion – borderline cases between duress and necessity (such as prison escapes and weapon possession) 1. Duress is only an excuse – Defendant has committed a crime, but it is not criminally liable; anyone aiding and abetting Defendant may still be convicted 2. Necessity is a justification – no crime is committed and no criminal liability; person charged with aiding and abetting is also absolved because no crime was committed to have aided E. Intoxication (MPC – a disturbance of mental or physical capabilities resulting from the introduction of substances into the body) 1. Voluntary Intoxication – refers to individuals who know, or should know, that the substance they are consuming is likely to produce intoxicating effects a. may only negate specific intent crimes b. may also negate elements of intent, purpose or knowledge 2. Involuntary Intoxication – refers either to consuming such substances without realizing it or unanticipated and unforeseen response to these substances a. claim an insanity defense b. if Defendant does not meet the test of insanity, he can still prove that he was too intoxicated to have the appropriate mens rea 3. What is meant by special intent crime? a. In most jurisdictions, it means both special mens rea and MPC purpose and knowledge, but NOT recklessness b. Minimum mens rea for 1st degree murder is PURPOSE – intoxication can negate deliberation and premeditation knocking it down to 2nd degree murder or manslaughter c. Minimum mens rea for 2nd degree murder is depraved heart recklessness – voluntary intoxication is not a defense F. Infancy (Common Law) 1. Under 7 – cannot be convicted of any crime requiring mens rea, because he has not developed a criminal mind 2. Between 7 and 14 – The presumption of incapacity is weaker 3. Over 14 – there is no defense VIII. Causation – the connection between the Defendant’s conduct and the actual result A. Cause in Fact (but for) – factual antecedent; [the defendant’s conduct is the cause in fact if but for the defendant’s conduct the harm would not have come about]; and 1. Simple Theory – result must be within Defendant’s purpose or knowledge, in a crime of purpose or knowledge, or within the risk which Defendant foresaw or ought to have foreseen, in a crime of recklessness/negligence and any variation between actual result and that intended, contemplated or hazarded is not so extraordinary that it would be unfair or unjust to hold Defendant responsible; OR 2. Complex Theory a. result must be that which Defendant intended or contemplated, in a crime of purpose or knowledge; OR b. result must be that which Defendant foresaw or should have foreseen, in crime of recklessness/negligence; AND c. If crime one of recklessness/negligence or crime one of purpose, but harm done was not that intended or contemplated, there must be no supervening cause i. a supervening cause can negate causation if the crime was recklessness/negligence. It is not negated if the crime was purpose or knowledge, as long as but for causation still exists B. Legal Cause – but for + one of the theories of causation C. Supervening Cause – an additional act or occurrence that will supercede the defendant’s act as the legally significant causal factor 1. Independent – independent from defendant’s action (a dependant cause is a response – if the intervening cause occurs in response to Defendant’s conduct it is not independent – intervening action of the Victim) ---(ambulance or police) 2. Intervening – one set in motion after the defendant’s act “not concurrent” 3. Unforeseeable – unforeseeable at the time the defendant acted (negligence is foreseeable ---criminal acts are foreseeable) D. “Thin Skull Rule” – take the victim as you find/injure him – concurrent E. Indeterminate Cause – (death from the combined shots from two defendants whereas each individual shot would not have caused the death) – both defendants will be found as § 2.03 MPC a but for cause of the death ---then you look to the legal cause by looking at the theories [if either shot alone would have caused the death, each would be a but for cause as well] 1. if coroner can determine which shot caused, than only that shot is the but for cause of the death F. Omission to Act – conduct – no criminal liability unless you have the legal duty to act (causing the peril, to family and sometimes associates) and if you have the capability to help (atleast calling out) IX. Killings in the Course of Unlawful Acts A. The Felony-Murder Rule – anyone who causes the death of another in the commission of a felony or in an attempt to commit a felony is guilty of 2nd degree murder – malice is evidenced by the intent to commit a felony 1. May be limited by statute a. felonies only inherently dangerous to human life (not usually larceny) b. timing 2. Self -Defense normally cannot be used (logical that someone will try to stop you from committing the felony) 3. “The Merger Rule” – Most courts hold that the felony murder rule can be applied only where the predicate felony is somewhat independent of the killing. If the predicate felony is the assault or battery by which the victim’s death is caused, the felony “merges” into the killing and thus does not retain sufficient independence to be a predicate felony 4. When non-felon commits the murder – some jurisdictions hold that these situations have all that is necessary – a but for cause – but for the commission of the felony, the person would not have died 5. Duration – the felony murder rule stops immediately after completion or abandonment of the felony. [other jurisdictions may apply the rule to killings much farther removed from the felony] a. acts following may qualify if they are so close to the felony so as to constitute the same transaction (escape . . .) i. robbery – includes larceny with an asportation element, if still in the process of asportation, then felony murder ii. never strictly applied to burglary – because once you have entered, the burglary is completed, but, if you climb into the window and accidentally kill someone, this is felony murder, even though the crime has technically been completed 6. Causation – usually the death is unintended and accidental a. the death must be the natural and probable consequence of the defendant’s conduct of committing the felony; OR b. if the death is the proximate result of the defendant committing the felony than that is enough c. if the defendant accidentally kills his CO-felon, than the defendant can still be held liable for felony murder d. if the defendant kills a third party – felony murder 7. Pursuant to Common Design a. if the death is caused by a CO-felon, felony murder, as long as pursuant to the common design (do not have to agree in advance to kill someone) – but if he was carrying a loaded gun and you knew, than you are liable b. but if you could prove that you agreed not to carry a loaded gun, and unknown to you, he brought a loaded gun, than this is not pursuant to the common design 8. Victim fires a shot in defense a. kills the Co-felon i. justifiable homicide ii. most courts say that the defendant is not liable for felony murder b. kills a third independent party i. agency theory – the defendant is only liable for the conduct of his agent ii. proximate cause theory – the shot was a proximate cause of the conduct and you take the risk XII. Accomplices, Attempts and Conspiracy A. Accomplices – acts with the purpose of promoting or facilitating the commission of the substantive offense for which he is charged as an accomplice 1. Principle in the First Degree – commits actus reus with his own hand or an innocent agent who acts in concert with the principle perpetrator (not the accomplice) 2. Principle in the Second Degree a. actual or constructive presence at the scene of the crime b. does not commit the actus reus of the crime c. aids, abets or encourages the crime d. same liability as the first principle e. could be convicted as the second principle even if the first principle is acquitted (but can not be higher) 3. Accessory before the fact a. Counsels, encourages, aids or abets but is not actually or constructively present at the time or place of the crime b. helps in the planning of the crime c. can incite felon to be reckless – manslaughter d. treated like the second degree principle as far as liability At common law, an indictment must charge the person correctly as principal or accessory according to the facts and on an indictment charging a person as principle, there could be no conviction on evidence that shows that he was merely an accessory and vice versa 4. Accessory after the Fact a. assists, relieves, comforts, or shelters the felon by hiding him after the crime is committed b. knows the offense was committed c. punished less severely d. must act with intent to hinder the arrest of the felon e. not held to the same liability as the first degree principle f. obstructer of justice 5. Aid a. helping (does not have to actually help) b. enough if made more likely to be successful c. felon does not have to know he is being aided 6. Abet a. inciting or encouraging b. communication must go through, otherwise no encouragement; must be made known c. defendant must have intent to abet, there is no abetting by accident 7. Mens Rea Requirement a. “the enterprise” – before he can be convicted, most courts say he must have Model Penal Code Purpose (for aiding or abetting conduct) b. Shared mens rea required for the offense – majority of jurisdictions a. reckless but unaware of intent is okay – not shared c. Intent to commit the object crime – minority (hard to convict on the crime of recklessness) 8. Liability a. accomplice is liable for “natural or probable” consequences of the crime he advised, aided, abetted, or incited (even though the consequence was not intended) b. accomplice is not liable for crimes which are the outcome of the total/substantial departure from his counsel, agreement, plan, etc. c. voluntary withdrawal can insulate Defendant from liability, but not if withdrawing because of police intervention, etc. i. defendant must withdraw for noble reasons and take affirmative steps to try and stop the crime ii. defendant must abandon plan before chain becomes unstoppable (i.e. no voluntary withdrawal once the fire has been started or bank robbery has begun) d. if trying to trap someone, he is not an accomplice ~ maybe something el e. Example on Page 655 of the case book/Questions on Page 643 9. Model Penal Code §2.04 (3) A person is an accomplice of another person in commission of a crime if; (a) with the purpose of promoting or facilitating the commission of the crime, he; (1) commanded, requested, encouraged or provoked such other persons to commit; or (2) aided, agreed to aid or attempted to aid such other person in planning or committing it; or (3) having a legal duty to prevent the crime, failed to make proper effort to do so; or (b) acting with knowledge that such other person was committing or had the purpose of committing the crime, he knowingly, substantially facilitated its commission; or (c) his behavior is expressly declared by law to establish his complicity B. Attempts 1. Mens Rea – intended (purpose or knowledge) to perform acts (specific intent) which if completed would constitute the underlying offense a. must have the same mens rea required by crime itself b. no attempted reckless killing 2. Actus Reus – finding the line between preparation and attempt – three tests (preparation for a crime is not a crime) a. Proximity of Success Test (Majority) i. how close was the defendant to completing the objective ii. the greater the apprehension, the sooner the attempt iii. wait until defendant’s conduct exhibits firm purpose and is seriously close to commission of the crime before imposing liability b. Res Ipsa Loquitur/Unequivocal Act Test i. looks at acts to determine defendant’s intention (would a silent movie of defendant’s conduct unequivicolly show what he planned to do?) ii. does defendant’s conduct indicate (reasonably certain) his criminal intention? c. Substantial Step Test (Model Penal Code) i. if defendant purposefully does anything which is a substantial step toward the commission of the crime and it is strongly corroborative of defendant’s criminal purpose ii. finds attempt at an early stage iii. Mens Rea must have been independent proof (cannot just rely on actions themselves to show mens rea) 3. Solicitation – misdemeanor a. asking someone to commit a crime for you b. mere solicitation of another to commit a crime does not constitute an attempt C. Impossibility 1. Legal Impossibility – where the act one sets out to is not a crime a. defendant did everything he wanted to do and it was not a crime b. Model Penal Code – if person fails just because he was wrong about the facts – it is NOT an excuse c. it is a defense except under the Model Penal Code 2. Factual Impossibility a. Intrinsic – when the means adopted by the defendant (defendant’s own capacity) are inherently incapable of accomplishing the criminal end i. not a defense except in rare cases b. Extrinsic – when defendant fails because of a mistake in the belief that his means would be possible to commit the crime; about suitability of his object (he thought 13 but really 18 – thought he was committing statutory rape but didn’t –[similar to legal impossibility]) i. not a defense except in rare cases ii. Example – shoots into an empty room when he thought the victim would be present