Law School Outlines - Crim_Law_Punishment

CRIMINAL LAW OUTLINE -FALL 2000 Punishment 3 reason’s for it removes dangerous people from society deterrence rehabilitation Theories of Punishment Restraint/Incapacitation Pros prevents future crimes by offender protects society Cons overcrowding of prisons may hurt offender more than may help can’s always tell who is dangerous hard to determine sentences Deterrence Pros offers a strategy for the future/prevents future crime can operate though general education-family, school,church prevents others by making an example of criminal Cons people commit crimes in the heat of the moment-don’t think may frustrate offender, rather than deter relies on idea that criminal behavior is not impulsive hard to gage Rehabilitation Pros prevents future crime of defendant changes people for the better Cons hard to do in prison setting/prison envir. not like real life expensive easy to fake not fair to give to prisoners-ie. education differential sentences relies on idea that people have knowledge to change others must be self motivated Retribution Pros makes society and victim feel better expresses societies values punishment fits crime helps get rid of vigilante justice Cons uncivilized unreasonable no constrictive purpose Sentencing Who should decide CRIMINAL LAW OUTLINE -FALL 2000 legislature mandatory sentencing gives a certain fairness and predictability to system it is not possible to think of every relevant fact in advance what if criminal rehabs-will we abandon his sentence? we would be locked into a system that may not work re-election nature of legislators not fair to prisoners Judges have wide disparity from one judge to the next could weigh facts of that particular case Parole Boards sentencing would be left to the end of imprisonment might give in to public opinion members have little to no training Proportionality When sentencing one should consider (Solem v. Helm pg 39 CB) gravity of offense v. harshness of penalty compared to other criminals in same jurisdiction compared to other criminals in other jurisdictions What should be punished? Generally criminality and morality agree but not always What is nature of harm to person, property, social fabric brought about by the practice? If practice does cause serious social harm, is criminal justice system a good weapon against it? If the practice does cause social harm, what are the costs of using criminal system to attack it? See sodomy and abortion Constraints on CJ System Adversary system: neutral umpire-judge Pro truth usually emerges Cons may not be reality (skills of lawyers on each side, selective choice of witnesses) Rules of Evidence: designed to keep out what may mislead jury, but in doing so may keep out relevant facts. Federal Constitution Due Process requires proof beyond a reasonable doubt (In re Winship pg 75 CB, Victor V Nebraska pg 24 SUPP.) better to let a guilty man go than to convict an innocent one. Fundamental rights Interpreted by courts to include right to privacy (Bowers v. Hardwick pg 62 CB) Fair warning: person must be warned that action is a crime.(Commonwealth v. Mochan and Keeler v. Superior Court pg 81 CB) prohibits ex post facto laws-relates only to statutes, not common law. makes action a crime after it was committed makes crime greater offense than when committed changes punishment from when committed Void for Vagueness: fails to give person of ordinary intelligence fair notice (US v Powell pg 93, Papachristow v. Jacksonville pg 97) CRIMINAL LAW OUTLINE -FALL 2000 Fails to provide guidelines for law enforcement violates due process statute of limitations Actus Reus Actus Reus: guilty act. Consists of voluntary act or omission that causes social harm. Omissions: (failure to act) State v. Parley and Ward pg 122 A person must legally act when: a special relationship exists (contractual) if you accidentally cause the difficulty family members (has been extended to friends in some cases) if you try to help and you leave him in worse condition then when he started statutory duty (police) Why not impose duty to act on everyone? Identity-what if 100 people could have helped competing obligation causation problems-hard to trace relationship Voluntary only part of act need be voluntary (US v. Coleman pg 129CB) Body movements that is not willed or performed while unconscious is not an act, ie. reflex, convulsion sleep, hypnosis. Involuntary presence can be a defense Involuntary possession: if D came into possession against his will are unknowingly, if he finds out he has a reasonable amount of time to get rid of possession. Causation: relationship exists between conduct and consequences. Mens Rea: guilty mind, wrongful attitude of accused accompanied with the act.(Regina v Cunningham pg 135) Must have intend to do act knowledge of the circumstances that make the act a criminal offense 4 Mental states of mind at CL Specific intent: State must prove intent by independent evidence, it can’t be inferred by D act (qualify for additional defenses not available to other states) Malice: murder, arson General Intent: intent can be inferred by D act, all other crimes Strict liability:no intent (no defenses allowed that negate intent) administrative, regulatory, morality crimes Treason:crime against king, against ones superior-very serious Specific intent crimes: solicitation, conspiracy, attempt, murder (today 2 degree), assault, felonies against property: Larceny, embezzlement, false pretenses, robbery, burglary, forgery Model Penal Code: rejects distinction of specific v general intent, proposes these mental states of mind Purposely: intends conduct and intends (desires) the outcome that will occur. is aware of existence of circumstances or believes or hopes they exist Knowingly: D does not want result but engages in act that is overwhelmingly likely to cause the result. Knows result could happen Recklessly: CRIMINAL LAW OUTLINE -FALL 2000 accused consciously disregards a substantial and unjustifiable risk accused disregard involves a gross deviation from that standard conduct of a lawabiidin person Negligently: accused should be aware of a substantial and unjustifiable risk accused failure to perceive risk must be a gross deviation from that standard of care that a reasonable person would observe. not all negligence punishable, must be careless Concurrence of Actus Reus and Mens Rea (Regina v. Prince pg 147) mens rea must be appropriate for the actus reus. no mens rea no crime (except in strict liability crimes If lesser mens rea and greater actus reus: at Common Law, D charged with greater crime-took the risk at model penal code (mpc), D charged with lesser crime If greater mens rea and lesser actus reus CL, D charged with greater crime MPC, D charged with attempted of greater crime, or lesser crime Wrong Time: if ar and mr happen w/in reasonable period of time, then mr carries over. Strict Liability Offenses (US. v. Balint pg 151, State v Cross, People v. Shaughnessy pg 164) Does not require mens rea usually offenses are trying to improve public policy-using criminal punishment to reach social goal includes abduction, statutory rape, and bigamy penalty is small, no jail time Mistake Mistake of Fact defense if the mistake is honest and reasonable Is not a defense in strict liability offenses General Intent: defense if mistake is material fact is reasonable and honest (MPC: mistake negates negligence ore recklessness for crime) Specific Intent: Defense if mistake is honest (MPC mistake negates purpose or knowledge for crime Mistake of law (People v. Snyder pg 218 Is not a defense Don’t want to encourage ignorance of law MPC Exceptions: statute had not been published or made reasonably available, erroneous authority of a judge or gov’t agent (but not a lawyer) (US v. Brady 224) Bigamy and related Offenses (in context of mistake) Abduction (Regina v. Prince 165) Strict liability, D assumes risk of knowing age no mens rea CL: to protect girls from being taken from their fathers Bigamy not a CL crime, ecclesiastic (punished by church Crime by statute Marry another while still married to spouse CRIMINAL LAW OUTLINE -FALL 2000 most juris. treat at strict liability offense Enoch Arden: missing spouse gone for 7 years w/no knowledge if they are dead or alive can remarry (Commonwealth v. Mash 169) MPC: requirements Belief in spouses death 5 years living apart and spouse is not known to be living termination or annulment that one believes is true reasonable believes one can remarry Rape (State v. Rusk 193) At Common Law unlawful carnal knowledge of a women, must have penetration statutes change this to apply to all genders by force and w/o consent victim must fight unless she is in reasonable fear of injury or death if victim is unconscious-force not necessary mistake of consent is a defense (Regina v. Morgan 184) must be reasonable and honest w/o threat or producing fear in victim Age, insanity, intoxication can prevent adequate assent Consent by Fraud fraud in inducement: victim is aware she is consenting to sex but was induced to do so by fraud; not rape because the consent is valid (Doctor tells patient sex w/him will save her life) fraud in factum: victim is not aware that she is consenting to sexual intercourse; rape because consent is not valid. Spousal Rape (State v. Willis 178) At CL: husband could not rape wife she belonged to him she consented when they got married Most juris. have changed this today-under statute can rape wife Statutory Rape made to protect young girls mistake as to age not a defense consent is not a defense Statutory Reforms Rape shield provision: victim protected from questioning about past sexual history except when D alleges they did not have sex a past sexual relationship existed between D and victim Rape trauma syndrome: controversial if it can be used in court Degrees of rape Assault (US v. Dupree 107) Civil Assault: intentional creation of a reasonable apprehension of an imminent bodily harm Actus Reus (ar): threatening act intending to frighten or harm with the ability to harm Mens Rea (mr): intent to frighten or injure, general intent Attempted Criminal Battery: unsuccessful attempt to commit battery ar: the actual attempt CRIMINAL LAW OUTLINE -FALL 2000 mr: intent to harm, touch or injure, specific intent Criminal Battery: unlawful use of force to the person of another, resulting in injury or offensive touching; present ability of harm required ar: offensive touching, actual contact mr: intent to touch or injure Aggravated Assault created by statute not CL assault on a class of persons (children, police) assault with deadly weapon assault w/intent to commit felon (rape, murder) Defenses to assault Consent can be express or implied not effective if procured by deception or duress when public condones (sports) given by legally competent person one can’t consent to an illegal act (State v. Brown 116) Justification emergency medical procedure self-defense necessity (push out of way of car) defense of third party to stop the committing of a crime moderate parental discipline MPC on Assault: misd. unless enterd into w/mutual consent as a fight then petty misd. attempts to cause or purposely, knowingly or recklessly causes injury or negligently causes bodily injury w/deadly weapon or attempts by physical menace to put another in fear of imminent serious bodily harm. Aggravated Assault: attempts to cause serious injury, or causes such injury purposely, knowingly or recklessly under circumstances manifesting extreme indifference to value of life (felony in 2 degree) or attempts to cause or purposely, knowingly or recklessly causes injury w/a deadly weapon (felony in 3 degree). Theft: at CL (Chapter Three) Common Law Larceny: Unlawful trespassory taking of personal property of another with the intent to permanently deprive the owner w/o claim of right Actus Reus Trespassory: taking w/o consent, or in absence of justification, or from another who has a superior right if one has lawful poss no larceny because no trespass Taking actual or constructive poss can be done through agent (monkey) Carry Away: (asportation) required every atom to move from previous location MPC only requires slightest movement Personal Property: CRIMINAL LAW OUTLINE -FALL 2000 must be movable excludes labor, services animals: livestock and noble animals (horses) included: pets and wild animals not modern view: service and info. can be stolen Of another: CL, theft by joint owner not possible, now it is generally is if taking is beyond the coowners authority CL, theft by spouse was impossible If victim never had actual poss. there can be no larceny Mens Rea Intent to deprive permanently CL, must exist at time of taking, today have continuing trespass: don’t need intent at time of taking must intent to permanently deprive: borrowing or use and return not included. taking of something of value W/o claim of right a person is not guilty of larceny if he takes property belonging to another on honest belief that he has a right to possess it belief does not need to be reasonable larceny by finding if finder has reasonable clue as to who owner is and does not try to find owner he is guilty of larceny Misdelivery: lacks trespassory intent, however if D receives property by mistake and later discovers it not larceny if D receives property by mistake and immediately discovers it it is larceny container cases-expectability rule: what you expect to be inside could result in larceny if you keep it. but if don’t expect it ie. the bureau w/hidden compartment w/money inside; delivery of bureau does not give the buyer legal poss. of money Extensions to CL larceny: went from mere poss. to constructive poss. in order to cover employees, ie. butler sold silverware: he never had poss. rightfully felony to take from a house you are a guest in, to take what is put in front of you for certain purpose (drink from a cup), servant could not take that of which they were in charge of. code modified again in 1529: so make it felony for servants to flee with an item they have rightful poss over but really belongs to owner if owner never has actual poss. then a person can’t commit larceny against them (Rex v. Bazley 251). larceny by trick: ie. changing price tags Embezzlement Statutes: poss. obtained lawfully by 3rd person: don’t need intent at time one comes into poss. accused is in position of trust to victim accused converts property: or seriously interferes w/it property subject to it is same as larceny mens rea follows larceny larceny after trust reverse of embezzlement A and B have fiduciary relationship, A gives $ to B to give to C, B keeps $-larceny after trust CRIMINAL LAW OUTLINE -FALL 2000 A and B have fiduciary relationship. C gives $ to B to give to A, B keeps $-embezzlement because stealing from person not have fiduciary relationship w/. Theft by Bailees CL: did not exist because bailees had rightful poss. Developed Breaking the Bulk: bailee breaks bulk, the bailment has terminated because the property was bailed as a whole and the poss. reverts back to owner Bailment must be of specific things, ie. doesn’t apply when A gives banker $, but A does not expect those exact bills back Larceny by False Pretenses: obtaining title of property of another by an intentional false statement of past or existing fact with intent to defraud the other. D persuades owner to give up title of property (unlike larceny and embezzlement where only poss is passes not title) by misrepresenting the facts The misrepresentation must be something in the past or present. A future promise is not false pretenses Must be misrep. of facts, opinions will not work misrep. must be the cause of obtaining property D must have known the statement to be false or intended the victim to rely on the misrep. Larceny by Trick same as larceny except fraud replaces force only poss passes, not title misrep. of future promise Other Theft Offenses: Robbery: Larceny plus Assault: taking or carrying away of property of another w/o consent D take from person or in his presence (broad) by force or fear of imminent harm In the presence of: can be tying victim in one room and stealing from another room At CL, violence had to happen prior to or in concurrence w/crime Threat during escape or to retain poss. is not robbery Claim of right is a defense, but D may be guilty of assault or battery MPC Changes to Robbery: D may threaten or inflict bodily injury or threaten or commit one of a defined class of serious felonies threat or injury must be serious any instance of consolidated theft crimes is sufficient, CL larceny not required theft need not be completed and force may be applied anytime during attempt or flight no requirement that theft be from the person or in the presence of the victim. Extortion/Blackmail: getting others property w/consent (usually forced) by using your position in office (color of office) CL, fee had to associated w/office and is unlawful if it is not authorized authorized but in smaller amount authorized but not due Claim of right is no defense extortion is future threat whereas robbery is imminent CRIMINAL LAW OUTLINE -FALL 2000 it involves reluctant consent extortion v. bribery can operate under same fact nucleus bribery is giving or taking $ for the purpose of improperly influencing official action and is seen as a victimless crime both parties are guilty in bribery Entrapment: law official creates crime and encourages D to commit crime that he would not normally do and is not predisposed to do look at past behavior to determine predisposition not applicable to serious crimes like murder Receiving stolen goods: CL: not punished directly compounding a crime: agree not to report larceny in exchange for something of value misprison of felony: obligation to report crime in a timely fashion receiving goods known or believed to be stolen w/intent to deprive owner Forgery: CL: making or altering of a false writing w/intent to defraud CL required knowledge that instrument was bad and an intent to defraud, but not the actual obtaining of anything through the forgery Must tell a lie about itself-either about the document itself or its maker, not a lie about what is written documents must have apparent legal significance Examples real driver’s license w/false b-day check written on non-existing bank account or w/o sufficient funds is not forgery (it is uttering) Uttering a forged document offering as genuine an instrument that maybe the subject of forgery and is false w/intent to defraud Consolidation of Theft Offenses: exclusions from: Robbery: because element of violence warrants more severe treatment forgery: because there is no taking Arson (Chapter 4): CL Malicious burning of (did not include explosions, water/smoke damage) must be the material burning of the fiber of the building Dwelling house habitually used as a dwelling expected to be used as a dwelling of another Must have malice state of mind: doesn’t mean evil just intentional Today it has been extended to the malicious burning of any building, whether yours or another’s (because of insurance fraud) Defenses: justification, excuse or mitigation consent of owner public necessity CRIMINAL LAW OUTLINE -FALL 2000 Burglary: Cl: breaking does not include going through a wide open door does include going through any shut door, including inside building breaking out is sufficient entering: going inside actual or constructive (reaching through window w/stick) dwelling house of another habitually lived in expected to live in at night increased likelihood of someone being home w/intent to commit a felony therein must form intent at the time of breaking, not later or after inside completion of felony is not required Statutory Changes does not have to be at night some juris. do not need breaking, entering is enough extended to any building Kidnapping: CL, misdemeanor defined as the forcible abduction or stealing away of a person from his own country and sending him to another. Related misdemeanors: False Imprisonment holding against will (need not include an assault) unlawful, not authorized by law not consented to Abduction: forbids the taking, enticing, or detaining of a female for some unlawful act Child stealing: The taking of a child from his/her parents Modern statutes have expanded kidnapping: generally defines confinement as movement of victim concealment of victim fraud could replace force does not have to be taken out of country Merger Doctrine: precludes kidnapping conviction in certain situations where the kidnapping is something one almost has to do in order to commit some other offense (women held at gunpoint and raped) Statutory Interpretation: Is there ambiguity in the statute no, then we don’t need to look at leg. meant yes, we must figure out what leg. meant search for meaning in context and history CRIMINAL LAW OUTLINE -FALL 2000 generally criminal statutes are to be strictly construed look to other statutes and see if any are analogous usually courts stay away from loose interp. for fear of misinterp. what leg. intended if you have a choice of how to construe the statute do so in light most favorable to D. Homicide (Chapter 5): problems come w/meas rea of crime at CL only murder: taking life w/malice afterthought and manslaughter (which came about in the 18th century as a caught all) no malice afterthought no crime at all Today it is split up: 1st degree murder: deliberate and premeditated 2nd degree murder: intent to cause death or serious bodily injury, but not premeditated manslaughter involuntary: acted in a way that you were grossly negligent, ie. falling asleep at the wheel of car voluntary: mitigated from murder 1, killing in the heat of passion, hot blood, provocation Depraved Heart murder: D knew risk but recklessly ignored it. felony murder committed while in the commission of an enumerated felony Intentional Killings Intention and knowledge most courts treat knowledge as purpose in 1st degree except when legislation requires purpose to kill. Presumption of Malice intent to kill or cause bodily harm in the absence of justification, excuse or mitigating factors If is proof of intentional/affirmative part, the 2nd element is presumed unless there is evidence to the contrary Intentional homicides are presumed 2nd degree D must bring up any defenses, but state must the elements of the crime to the jury presence of premed., deliberation, and purpose to kill is enough to raise it to 1 degree Corpus Delicti: Conviction of any crime must rest on more than the uncorroborated confession of D. Must show that at least one part of confession could be true. 1st degree murder: must be premeditated and deliberation this can happen in any amount of time, no matter how small In order to prove, state must prove (Midgett v. State 382). D had conscious object to cause death D formed intention before action D weighed in his mind the consequences of a course of conduct, as distinguished from action upon sudden impulse w/o the exercise of reasoning power Problems: hard to show killer meant to kill rather then injure CRIMINAL LAW OUTLINE -FALL 2000 Deadly weapon rule: if D uses a deadly weapon that is likely to cause death the jury may conclude D intended to kill the victim that D actually premeditated and deliberated the crime Evidence used in determining premeditation: What D did prior to killing D prior relationship w/victim to infer motive facts about nature of killing from which infer the manner of killing was so particular that D must have planned it. Intention to Injure Test is objective: “would a reasonable person have known the act would cause grievous bodily harm or death?” problem: do reasonable people commit murders? Provocation and Related Problems Reduces murder 1 to voluntary manslaughter Do we take into account when a person is extremely emotionally disturbed? Use reasonable man test: provocation needed to be such that it would arouse a reasonable man D must have been aroused to the heat of passion a reasonable man would not have cooled off D in fact did not cool off Do we consider the D state of mind at the time he commits the crime or at the time of the provocation Can we include the characteristics of D? (insert 32 p71). age of D was deemed to be a charac. that could change the reasonable person standard the charac. must be something definite and of sufficient significance to make D a diff. person from the reasonable ordinary man, and have a degree of permanence to warrant. an addiction may be a charac., but not being high in and of itself The provocation must be legally adequate: words do not qualify if words describe an act may be enough (ie. man raping wife of another man) physical assaults usually enough adultery no longer enough in MD Use the reasonable person in the same situation as D test Arrest Powers: w/o warrants Felonies Police must have suspicion or must be committed in their presence Misdemeanors must be committed in the presence of officer for arrest Private citizens CL: can arrest for a felony if, acting in good faith, they reasonably believe a felony has been committed can arrest for misd. when one in his presence is guilty of an affray or a breach of peace Resisting Arrest Traditionally: one could resist arrest if arrest was false because the person was deemed to be outraged Can NOT resist an arrest that is made by warrant CRIMINAL LAW OUTLINE -FALL 2000 even if warrant is bad Today: can’t resist unlawful arrest if officer is using necessary force can resist if excessive force is being used if you reasonably should know that it is an officer Killing an officer while resisting unlawful arrest 2 views once illegality of arrest is established, the degree of homicide can’t be greater than manslaughter unless express malice is proven the accused must in fact have been filled w/passion aroused by the illegal arrest sufficient to meet the usual provocation tests, if murder is to be reduced to manslaughter Justification and Excuse Justification: accused did the right thing and is released from blame Self-Defense= acquittal used only if necessary to avoid death or serious harm and the threat is imminent Imperfect Self-Defense: If you honestly believe it, but it is not reasonable and it may mitigate the crime (applies only to murder and manslaughter). only applies to specific intent crimes must use same degree of force as aggressor deadly force v. non-deadly force applies to assault Duty to Retreat Rule: In retreat states: must retreat if aggressor is at point of deadly force D is not in his castle D knows he can retreat safely In non retreat states don’t have obligation to retreat as long as you are not at fault for the altercation Aggressor gives up self-defense claim unless he is using non-deadly force which is met by deadly force aggressor fully retreats Castle Exception Majority: no duty to retreat in one’s dwelling whether ones assailant is an intruder or a co-dweller minority: have a duty to retreat if assailant is a co-dweller Aggressor must retreat and make it known to the victim, if he does not make it known too bad Self-Defense of others 3rd person can’t use any higher force than would be needed to protect self in same situation D must have an honest and reasonable belief that the person he is helping really deserves and needs it Battered Spouse syndrome generally is not a defense, but evidence as to its existence is allowed in court expert testimony to it is allowed if: witness qualifies as an expert CRIMINAL LAW OUTLINE -FALL 2000 opinion is based on an explanatory theory generally accepted in the scientific community testimony would be helpful to the trier of fact the testimony must also have some kind of connection w/D state of mind at the time of the crime If it is allowed into court, it is only applicable to the actual victim. Protection of Property generally can’t use deadly force to protect property use a tool, ie a dog, to kill in protection of property is not allowed either MPC allows use of deadly force to stop burglary when D thinks the perp. poses serious bodily harm and the use of deadly force will not harm innocent bystanders Force against fleeing criminals CL: civilian can use deadly force to stop fleeing felon Today: must be a danger to person or others before deadly force is justified Necessity: what D did is not okay but we will forgive usually must choose the lesser of 2 evils When choosing b/t equal evils(save own life for the life of another): it may be necessity if it is an overwhelming emergency emergency must arise w/o fault of D must be imminent present no reasonable opportunity to avoid injury e/o doing the criminal act impending injury must be sufficient seriousness to out measure criminal wrong defense is available when a person acted in reasonable belief that an emergency exited and there were no alternatives, even if belief was mistaken. persons actions should be weighed against the harm reasonably foreseeable at the time, rather than the harm that actually occurred. Medical Necessity: when use of illegal drug (pot) is needed and the benefits are greater then the harm to be prevented Caused by circumstances Prison Breaks Necessity: must be imminent and specific threat of severe harm, death or sexual assault no time for a complaint or a history of ignored comply. no time or opportunity to resort to use of courts no evidence of force or violence used during escape D must immediately turn self into authorities when out of danger Excuse Duress: Elements caused by human threat to a person Threat must be imminent Threat of killing a pet is not enough Threat of another family member may be enough D can not be at fault not acceptable for intentional killings may mitigate instead of excuse in homicides May be a defense to felony murder Tests: Objective (MPC) whether a person of reasonable firmness would be able to resist the threat Subjective CRIMINAL LAW OUTLINE -FALL 2000 whether D was able to resist based on D’s character (size, gender) and situation must be a permanent character Military Orders good defense on whether D knew or should have known unlawfulness of crime (Justification) Necessity v. (Excuse) Duress: Necessity a third party may assist created by natural forces, impersonal threats Duress a third party may not assist created by another person, personal threats Insanity (an excuse) Should D be excused from criminal liability because of mental disease or defect at the time of commission? looks at D at time of crime and no other time Competency to stand trial: at time of trial D has sufficient capacity to (not as high as insanity) understand the proceedings against him assist w/his defense must be competent through entire trial Can one w/amnesia stand trial? yes, you are still competent Not guilty by reason of insanity is enough to commit D to mental institution 3 purposes of CJ system (rehab., retribution, deterrence) not met by punishing insane Tests over time M’Naghten Test: at time of act, D did not know the nature and quality of the act; or if did know it, that he did not know it was wrong. (right v wrong) severely restricts expert testimony Irresistible Impulse Test: looks at cognitive and volitional parts of D’s behavior. Must have complete destruction of governing power of the mind problems: this test assumes crime is impulsively committed and must have been commit in a sudden and explosive fit. Can I voluntarily resist or its it irresistible Would you commit crime w/a police man at your elbow? Durham Test: product rule: exculpated those whose acts are a product of mental disease/defect Legal Def. of Mental Disease: any abnormal condition of the mind which substantially affects mental or emotional processes and substantially impairs behavior controls problem: Too broad MPC Test: D lacks substantial capacity to recognize wrongfulness of act or to conform his conduct to the requirement of the law modifies M’Naghtern and Impulse test and puts them together designed to exclude the sociopath or career criminal Federal Test: unable to appreciate nature and quality or wrongfulness of acts State has burden to prove beyond a reasonable doubt that you are same Today some juris. only require proof by preponderance of evidence CRIMINAL LAW OUTLINE -FALL 2000 Variations: Bifurcated trial: attempt to try case w/o reference to insanity and then if convicted have a separate hearing on the question of responsibility Guilty But Not Criminally Responsible: MD uses; means guilt of crime but no punishment, instead go to mental hospital. this prevents “responsible” Ds from getting free. Diminished Capacity: used to not be acknowledged as a defense at all because it creates a vagueness in standard Today: MD treats it like a mental illness because you can’t create intent for crimes (especially specific intent crimes) Usually used as a partial defense to mitigate the crime Involuntary Act: D is acquitted can’t control, ie. reactions to prescription drugs (alcohol is not included) Intoxication: voluntary: no defense sometimes considered a defense to specific intent crimes, because you were so drunk you couldn’t form intent involuntary: treated same as insanity Mere narcotics addiction does not equal insanity reasoned choice when addict knowingly acquires and uses drugs (could have participated in a treatment program) congress has provided severe punishments for drugs so we can’t use insanity, which does not punish Infancy: CL: under 7: not criminally responsible under 14: rebuttable presumption of such incapacity Reckless Or Negligent Killings: Matters of Degree Negligence: Usually Involuntary Manslaughter Is this something D would normally do only he did it bad? Did D intentionally do something or fail to do something which he should have done under the circumstances Did D consciously realize that his conduct would in all probability produce the precise result which it did produce D does not have to be present when event occurs, just that the event occur because of his violation or failure to act (Welansky 612). Intent doesn’t matter it is what risks D takes Objective/Subjective Test: Would a reasonable man in shoes of D have acted the way D did? Must be guilty of Gross Negligence, normal everyday negligence is not enough Depraved Heart Killings: Reckless Second Degree Murder did D do something unusual, or chooses to do something dangerous ie, shooting a gun into a crowd of people w/no intent to kill anyone. Juries asked to look at 4 factors in determining if it was negligent, reckless or malicious: social utility of D’s conduct magnitude of risk conduct creates nature of foreseeable harm CRIMINAL LAW OUTLINE -FALL 2000 likelihood that conduct will result in harm D’s knowledge of risk precautions taken by D to minimize risk Actus Reus of Criminal Homicide: Causation How do we decide if you are responsible for the effect? Need but-for causation: but for D’s action or failure to act the result would not have happened. Can not have any Supervening causes for criminal responsibility To Determine Supervening causes look for: Substantial: another cause happens after D’s action which changes the result (D gives V poison, but while V languishes A stabs V and V dies of stab wound) preexisting condition is not supervening hospital negligence is not supervening, however, gross negligence of doctor may be Independent: Not a product of or connected to D’s act Unforeseeable: would a reasonable person foresee the second act? Two people involved in an act and cause the death of an innocent person they are both liable, even if only one causes the death (2 people are drag racing and one car hits and kills a bystander, both drivers are liable because w/o either of them no one would be drag racing). Human Being Requirement: At CL a fetus was not alive, therefore you could not kill a fetus Today in controversy w/abortion laws Can’t kill a dead person, therefore it becomes necessary to fix a time of death Death is when the heart stops Felony Murder Rule: causing a death in the course of one of the enumerated felonies (usually harmful felonies, ie. rape, robbery). Didn't exist at CL Don’t need to prove intent for murder separately from intent for felony (easier to prove) Constitutes 1st degree murder Can’t use self-defense rule Killings in the furtherance of a felony Proximate Cause: causal relationship b/t felony and killing Factual causation: felony must be in but-for cause of killing Legal Causation: felony must be in proximate cause of killing (does not include smuggling drugs and the plane crashes) Duration of application: During attempt stage of underlying felony During actual commission of felony Some juris. apply rule after felony has been completed (ie. burglary but perp. is still on property) Some juris. apply rule after felony scene is over The felony must be independent of the killing (ie. assault w/deadly weapon will not work because it is already charged w/murder)-Merger Doctrine Redline Rule: D is not responsible for the death of co-defendants if they die in commission of felony, if co-D dies at hand of someone other than D. Exception-if D uses V for a shield and V is shot by police, D is liable CRIMINAL LAW OUTLINE -FALL 2000 Inapplicable homicide-presumed to be intended assault merger rule IF D can prove Duress for underlying felony then their can be no felony murder Misdemeanor manslaughter rule: death occurring in commission of misdemeanor not applied often because not many misdemeanors are dangerous Accomplices, Attempts, Conspiracy Accomplices: First Degree Principal: actually or constructively present and participates in the commission of the crime; actually perpetrates or acts in concert w/the principal’ uses hia hands or innocent agent innocent human agent: minor or mentally ill, can also be misinforming someone, has no intent 2nd Degree Prinicipal: actual or constructively present at the time and place of the crime other than one who aids and abets or advises on the commission actual presence: in a position to aid in the crime’ prevents others from intervening constructive: if D acts as a lookout aids: helping’ sufficient if D intends to help and principal doesn’t know abetting: encouraging or inciting the principal, principal must know (must be communicated) that he is encouraging or inciting Accessory before the Fact: absent from scene but participated in the planning of the crime in such a way to counsel, procure, or command the principals to commit it Accessory After the Fact: merely provides assistance to the perp. of the crime after its completion and nothing more (treated less severely) AT CL 1st and 2nd prin., before the fact received same punishment, and principal must be convicted before accomplices before and after the fact today: most states abolished that so accomplices can be convicted of more serious crime than prin. if he has appropriate mens rea Mens Rea: accomplices must have intent to aid or abet and must share same mens rea w/the mens rea of the prin. Some juris. require knowledge, others purpose If you agree to underlying felony, you also agree to what could foreseeably happen (ie. teller gets killed in bank robbery) Selling supplies for crimes if sold specific thing (gun) for a specific crime, seller substantially contributed to crime and is an accessory if sold and D could get it anywhere else, seller guilty of no crime Ask are parties trying to do the same thing? is D doing something unusual Can you be guilty of accessory before the fact to involuntary manslaughter? Probably not gross negligence A loans B his car knowing that B is drunk. ON way home B gets into an accident and kills C A sees a struggle b/t B and C. B is clearly provoked. A hands B a gun and B kills C. B guilty of manslaughter CRIMINAL LAW OUTLINE -FALL 2000 A guilty of 1st degree murder Attempts: Mens Reus: Majority view: purpose (but in serious crimes juries can infer purpose from knowledge Actus Reus: acts must go beyond mere preparation These are specific intent crimes Test: intend to commit crime take substantial steps toward crime Renouncing Attempts: if it is an attempt it is an attempt can’t renounce it maybe b/t substantial steps you stop and renounce it will be valid. Impossibility: Factual: using unloaded gun, or pick pocketing an empty pocket ONLY reason D doesn’t succeed is b/c of facts, it is still legal no defense Legal: intended acts, even if completed would not be a crime defense No such thing as an attempted felony murder b/c killing was and accident in the first place Conspiracy: Agreement b/t 2 or more people to commit a crime At CL only when conspiring to prosecute one of a crime he didn’t commit Today need 2 people intending to commit a crime One party can’t be found guilty if other party is found not guilty need not be expressed, just something that reasonably infers an agreement Solicitation: trying to get someone else to commit a crime