Law School Outlines - CrimLaw_principles by sammyc2007

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									0735545448 I. General A. 3 General Principals limit the distribution of punishment in the Criminal Justice system, they are: a. Culpability – To safeguard conduct that is without fault from being criminal b. Legality – Do the rules defining the offense put everyone on notice about the rules defining correct and incorrect behavior c. Proportionality – Do the rules match the level of punishment appropriate with the level of blame B. Principles of Evidence – Evidence has to be probative and material to be introduced to the court in a criminal proceedings – what does this mean: a. Probative – the proposition to be established is more than likely to be true given the evidence, then without the evidence b. Material – Evidence to be proved affects the outcome of the case at hand C. All crimes have several basic common elements: 1) A voluntary act (Actus Reus) 2) A culpable intent (Mens Rea) 3) Concurrence between 1 and 2 a. Prohibitive mental state + conduct = criminal guilt 4) Causation of Harm II. Actus Reus (AR) A. Act must be Voluntary – An act cannot satisfy the actus reus requirement unless it is voluntary. B. Situations where actus reus requirement is not found: a. Duress – Threat or use of force by a third person, forcing individual to act, or putting them in a situation where they will act. (Martin vs. State – taking drunk man out of home) b. Unconsciousness – an act performed during a state of unconsciousness does not meet the AR criteria – (People vs. Newton – Jury should have been instructed about the defense of unconsciousness when Newton was shot in stomach/ Cogdon - killing while sleepwalking – This was used as a missing element defense) c. Reflex or convulsion – An act consisting of a reflex or convulsion does not give rise to criminal liability. (Driving with condition, when he knew that he shouldn‟t People vs. Decina – knowing and unreasonable risk) d. Status – A status in and of itself is not blameworthy (Robinson case). So you cannot charge someone for being a drunk or an addict. i. However can be charged for Self Induced cases i.e. In all cases involving allegedly involuntary acts D‟s earlier voluntary act may deprive D of the involuntary defense. (the Powell case) C. Omissions – The AR requirement means that in most situations there is no criminal liability for an omission to act (distinguished from an affirmative act) a. Is there a legal duty? i. Is there a relationship between the D and the victim? 1. Where a statute imposes a duty to care for another 2. Where one stands in a certain status relationship to another (ex. Pope case) a. Very limited in the creation of a duty i. Husband wife ii. Parent child 3. Where one has assumed a contractual duty to care for another (ex. Jones case) 4. Where one has voluntarily assumed the care of another and so secluded the helpless person as to prevent others from rendering aid (ex. Pope and Jones case) a. The Good Samaritan statutes always enforce a clause that the duty only applies with relevant safety. 5. If D caused the danger a. if I push someone into the pool and then let don‟t save them, I will be liable. 6. Even if mother was being abused she still has a duty to protect her daughter (ex. Cardwell case)

b. Did the omission directly cause or worsen the injuries of the victim? i. Person charged with duty of care is required to take steps that are reasonably calculated to achieve success. III. Mens Rea – need to prove intent for criminal culpability with some exceptions like strict liability. (ex. Cunningham gas meter case)  Crown has to prove mens reas with each crime for which D is going to be held responsible. o Cannot be convicted of a greater crime because you have the mens rea for a lesser one (ex. Faulkner case) A. Classified into three different kinds of crimes a. Crimes requiring General Mens Rea (General Intent) i. General idea of bad decision making ii. D desired to commit an act which served as the actus reus iii. Example would be battery 1. If I held a knife to your neck with no intention of causing you any injury iv. An objective negligence or recklessness in regards to a particular circumstance. b. Crimes requiring Specific Mens Rea (Specific Intent) i. Did D indulge in specific conduct required by that particular crime for a criminal charge. ii. D, in addition to desiring to bring about the actus reus, must have desired to do something further iii. Example is burglary 1. Breaking and entering WITH the specific intent of committing a felony B. Model Penal Code a. Material elements that have to be satisfied for each of the four levels of culpability. Section §2.01 i. Conduct element 1. What the D did or failed to do 2. Bodily movements, actions, conducts, 3. All crimes have this element ii. Circumstance element 1. Where or when D acted or failed to act 2. Not all crimes have these 3. Circumstances surrounding the conduct/crime iii. Result element 1. Consequence of D‟s conduct 2. Don‟t always have this element 3. One crime that always has this element is homicide where death of the victim is the result element b. There are only four kinds of mens rea: i. Purpose 1. MPC Elements: a. Conduct – Conscious object or desire. I want my body to move in that fashion. Not just that I am aware that my body is moving. b. Circumstance – You are aware of the circumstance or believe or hope that it exists c. Result – Conscious objective or desire. You desire to cause the result. 2. Conditional Intent a. “When a particular purpose is an element of an offense, the element is established although such purpose is conditional unless the condition negatives the harm or evil sought to be prevented by the law defining the offense.” b. Example: defendant takes property intending to keep it, but only if it is his own. This would not be larceny because his condition negates the intent required for larceny. c. Holloway Carjacking case

3. Reasonable Foreseeability Test a. Intent from one crime transfers to another that is a reasonable foreseeability of the natural probably consequence of the first. i. A reasonable person could have foreseen the consequence ii. This is the Neiswender case 1. intent to purposely defraud carries over to natural consequence to purposely obstruct justice ii. Knowledge 1. D does not desire, but is aware. MPC Elements: a. Conduct – Aware of the nature of the conduct b. Circumstance – Aware that the circumstances exist c. Result – Is practically certain that the result will occur given the conduct 2. Avoidance – a conscious purpose to avoid actual knowledge of illegality is tantamount to knowledge, if: a. Awareness of the high probability of the existence of the fact in question b. This interpretation is in line with the purpose of the statute – Purposive argument (ex. Drug Control‟s purpose of curbing drug trafficking is undermined if actual individual was required) c. The ignorance is solely and entirely a result of a conscious purpose to avoid learning the truth. d. Jewel case of drug trafficking w/ weed in car iii. Recklessness 1. Knowing that there is an unlawful risk and running it anyway 2. Running a substantial and unjustifiable risk. Two parts: a. Substantial awareness of the substantial and unjustifiable risk. This D actually did know of the risk. So not should have known, but did know. b. It is a gross deviation from the way a law abiding person in D’s situation would have acted. iv. Negligence 1. Should have been aware of the substantial and unjustifiable risk AND 2. gross deviation from the way a law abiding person in D‟s situation would have acted. C. Mistake of Fact a. Lesser crime theory (Mala in se crimes – wrong in themselves) i. Mistake of fact is not an excuse when even without the mistake the act would have been a crime ii. Regina v. Prince – Man takes a girl with her dad‟s consent not knowing she is 16 and is charged because the taking of the girl was a crime b. General Intent crime i. Mistake of fact is an excuse only when it is honest and reasonable c. Specific Intent i. Mistake of fact is an excuse even when it is honest and unreasonable as long it negatives the requisite mens rea required for the specific intent ii. Kelly case - Guy who takes the mantel piece. In larceny it is an excuse. iii. Rape is a specific intent crime in some states allowing a mistake of fact excuse as long as it is honest and not reckless, even if it is unreasonable. d. Strict Liability i. Mistake of fact is never an excuse regardless of honesty and reasonableness ii. Sherry case – This court held that rape is a strict liability crime. Irrebutable presumption that No means no! Rape is not considered a strict liability crime in all states, but instead is a specific intent one. e. MPC §2.04

i. If the legislature wants to foreclose an honest and reasonable mistake, then they should require purpose or knowledge. ii. Because an honest and unreasonable mistake is reckless by its nature it does not negative the recklessness culpability level. D. Mistake of Law a. MPC i. Type I mistake of law 1. When D makes an honest mistake that negatives the culpability level required – missing element defense 2. This is a good defense a. Regina v. Smith – D did not know fixtures become part of the apt. b. If a crime only requires negligence or recklessness, then an honest and unreasonable mistake of law is not a defense ii. Type 2 Mistake of Law 1. Mistake as to the meaning of the criminal law itself 2. It says that this is no defense. a. Not how you interpret the law to be. Ignorance that a statute makes ones conduct a crime is not an excuse. Marrero case. b. Mistake of law is never an excuse in General Intent crimes iii. Type 3 Mistake of law 1. D who is mistaken about what the criminal law requires, but a. when this is based upon a reasonable reliance on an official statement of the law, it is a good defense. i. Albertini case – ex post facto law 1. statute/official statement is later found to be invalid or erroneous. b. reliance on the interpretation of law by a public official is not an excuse (Hopkins case) E. Strict Liability – Commission of the Act make you liable a. Actus Reus i. A voluntary commission of an act within the chain of sequences that led to the violation is required. State v. Baker b. Mens Rea i. Statutes 1. Explicit omission of the mens rea requirement in a statute does not necessarily make it strict liability (Morissette v. US) a. This is especially true of traditional common law crimes b. Nature of injury is different i. When an individual or firm violates a strict liability crime that is a regulatory crime, the injury is not some specific consequence to the crime, the injury is in the very violation of the regulatory regime. c. The duties that are typically violated in a regulatory crime are also mirrored in civil or tort duties. c. Vicarious Liability – liability imposed on one for the act of another i. When incarceration is a possible sanction, no vicarious liability 1. Criminal penalties based on vicarious liability are a violation of substantive due process and that only civil penalties are constitutional. State v. Guminga a. The private / D‟s liberty interest it too large when balanced against the state / public‟s interest ii. When no incarceration 1. employers are criminally vicariously liable for the illegal conduct of their employees even in the absence of evidence of employer fault 2. ex. fines

d. Canadian Compromise i. in regulatory crimes in which the government might be inclined to adopt strict liability, to assume criminal responsibility but allow the D to show by a preponderance of evidence (a lower standard) that D did exercise reasonable care. VI. Homicide A. History a. Until the 18th century, only one type of murder that was punishable by death i. People who were subject to mandatory death sentence, but juries thought did not deserve to be executed resulted in nullified juries. b. First Development i. 1st degree murder 1. Carried mandatory death sentence 2. Premeditation and deliberation ii. 2nd degree murder 1. Did not carry death sentence c. Second development i. passage of a statute that gave criminal juries for the first time whether or not to recommend death penalties even in 1st degree murder. 1. Created jury discretion d. Third development i. Promulgation of the Model Penal Code and the adoption of the MPC‟s Homicide 1. Got rid of the idea that planning is the worst 2. Uses as a sorting device the four part culpability structure. Purposeful conduct is worse that knowing conduct which is worse than reckless which is worse than negligent a. Purposeful or Knowing killing is murder b. Reckless killing is Manslaughter c. Negligence killing is the lowest level of manslaughter e. Fourth development i. The US Supreme Court struck down the death penalty statutes. The cases had jury discretion where the jury decided to give the death penalty. 1. Jury is required to recommend death penalty based on a guiding weighing of mitigated factors B. Murder a. Premeditation - Deliberation i. Usually premeditation is 1st degree, otherwise 2nd degree ii. Means intentionality and purpose. 1. Sufficient to say that D acted intentionally, do not need calm planning. It may be formed while the killer is pressing the trigger. Commonwealth v. Carroll iii. Does NOT mean intent or purpose – State v. Guthrie 1. need some period of time between the formation of the intent to kill and the actual killing, indicating the killing is by prior calculation and design 2. need some evidence that the D considered and weighed his decision to kill iv. The Anderson factors are 1. Planning activity a. Was there evidence of any such activity? 2. Relationship between victim and D a. Does it support an understanding of motive? b. Was the relationship a motive to kill? 3. Evidence regarding the nature or manner of the killing which indicate a deliberate intention to kill according to a preconceived design a. Considered and weighed decision v. spontaneous and non-reflective explosion of violence b. Committed during the commission of certain felonies

c. MPC Murder Categories i. Committed Purposely or Knowingly ii. Committed Recklessly under circumstances manifesting extreme indifference to the value of human life 1. Depraved Heart iii. Felony Murder d. Felony Murder i. Murder that is committed in furtherance or during a felony ii. Requirements 1. Act known to be dangerous to life and likely in itself to cause death AND 2. Done for the purpose of committing a felony 3. Regina v. Serne – man burns down his house with two kids trapped inside iii. Proximate cause is what connects the death to the D’s conduct 1. Proximity is that the harm was the natural and probable consequence, or the foreseeable consequence of the criminal act – King v. Commonwealth 2. Separate showing of foreseeability is not required for the following two: a. Defendant must take the victim as he finds him. i. foreseeablibity is not required as a sub-element of causation– People v. Stamp b. Also mere commission of the serious felony shows such recklessness that it is convictable for felony murder iv. Common Law 1. Felony murder in a sense is strict liability. a. Certain enumerated felonies allowed for felony murder 2. Malice aforethought is presumed a. People vs. Aaron – Michigan Supreme Court abolishes common law felony murder rule. Only state to do that i. Must now have to prove malice aforethought in order to prove 1st degree murder. The intent of the felony no longer imputes to the murder. 3. Irrebuttable presumption if you commit a murder in the commission of a felony. 4. most jurisdictions follow the common law and not the MPC v. MPC 1. Recklessness and extreme indifference to the value of human life are presumed by the commission of the felony a. Robbery, rape, arson, burglary, kidnapping, felonious escape 2. Rebuttable presumption a. If you can prove that you did not have a callous indifference to human life then you can get off vi. Limitations to Felony Murder 1. “inherently dangerous-felony” limitation a. Only such felonies as are in themselves “inherently dangerous” to human life can support the application of the felony murder rule b. Two approaches i. Abstract 1. We look to the elements of the felony in the abstract, not the particular „facts of the case” – People v. Phillips and People v. Satchell ii. Particular to the facts of the case 1. consider the facts and circumstances to determine if the felony was inherently dangerous in the manner and circumstances in which it was committed – People v. Stewart 2. “killings-not-in-furtherance” limitation – State v. Canola a. Agency Theory of Causation

i. Focuses on who actually did the killing. 1. IF anyone acting in furtherance of the felony kills, all the Ds will be held accountable a. If someone outside of D or his agents kills, Ds will not be held liable 2. Someone is legally treated as the agent of the D if they are acting with a common design or plan. (acting in concert). ii. Vicarious Liability 1. Felon is guilty under a reckless disregard for human life for a killing committed by a victim in response to provocative behavior by one of the felons 2. Taylor v. Superior Court – Guy threatened store owners while cofelon pointed gun. Guy found guilty for co-felon who was shot by one of the store owners b. Proximate Cause Theory – Commonwealth v. Almeida i. the focus is not on who did the killing, but on who is killed and whether the death of that person or someone in their circumstance foreseeable. ii. Whether the killing no matter who did it is within the foreseeable risk of the commission of the felony. C. Manslaughter a. MPC i. Committed recklessly 1. D consciously disregards a substantial and unjustifiable risk that his conduct will cause that result AND 2. the nature and degree of risk must be such that considering all the circumstances, its disregard “involves a gross deviation from the standard of conduct that a law-abiding person would observe in the actor‟s situation.” ii. Committed under the influence of extreme mental or emotional disturbance for which there is reasonable explanation or excuse 1. reasonableness of such excuse or explanation determined from the view point of a person in the actor‟s situation under the circumstances as he believes them to be b. Provocation i. defense that reduces murder to manslaughter 1. notion that the kind of passion induced by these stressors was in consistent with malice. 2. can only have malice aforethought or heat of passion, NOT have both. ii. Common Law 1. Legally sufficient provocation has to fall under one of these pre-defined categories. Girouard v. State a. NEVER reasonable as a matter of law for a spouse to respond to words with deadly force 2. Must be such as might naturally cause a reasonable person in the passion of the moment to lose self-control and act on impulse and without reflection. Maher v. People a. Reasonableness is based on ordinary human nature or average men i. Unless D has some peculiar weakness of mind or infirmity of temper, not arising from wickedness of heart or cruelty of disposition b. Prior to this decision at common law, provocation had to occur in D‟s presence 3. Partial Justification a. Most states do not do this, they fellow Maher 4. Cooling time a. Too long of a lapse of time between provocation and the act of killing will render the defense void iii. MPC – Extreme Emotional Distress

1. Requirements – Cassasa a. D acted under the influence of extreme emotional disturbance i. Wholly subjective – D honestly has it, not contrived or a sham AND b. There must have been “a reasonable explanation or excuse” for such extreme emotional disturbance, the reasonableness of which is to be determined from the viewpoint of a person in D‟s situation under the circumstances as the D believed them to be. i. View the subjective internal situation that the D found himself in AND ii. The external circumstance as he perceived them to be at the time 1. this perception may have been inaccurate a. personal experiences b. shock from trauma c. mental disorder d. extreme grief iv. A limited defense. It could be saying that 1. there is something impaired about the D. The circumstance so overcame the D‟s ability to show reasonableness OR 2. P with his/her conduct had it coming. c. Recklessness – Commonwealth v. Wellanski i. Conduct becomes criminal when it passes goes beyond negligence and ordinary negligence and enters into the domain of wanton or reckless conduct ii. Intentional conduct, either commission or omission where there is a duty. 1. The likelihood of the risk is high 2. The gravity of the harm is great 3. D‟s subjective awareness of the risk a. If likelihood of harm was that high then we permit the jury to infer that D should have subjectively known of the harm. b. Knowing facts that would cause a reasonable man to know the danger is equivalent to knowing the danger D. Negligent Homicide a. MPC – committed negligently i. D acts without awareness of risk b. D‟s conduct fails to measure up to the standard required of a man of a reasonable prudence is, he is guilty if ordinary negligence if he fails to use ordinary caution. State v. Williams i. If such negligence proximately causes the death of the victim, then guilty of negligent homicide, not manslaughter ii. the standard is at what time would an ordinary prudent person would take action or precaution c. Common Law/Statute View i. D‟s conduct was in direct contrast to factual information (Gross Negligence) in which he knew or should have known that his actions could lead to someone‟s death 1. D has to honestly not know the significance of the factors that are presented to him V. Excuse - Defenses made available to Ds who commit wrongs but for some reason are regarded as not responsible for their wrongful conduct.  Should belong to the individual actor because we excuse that actor because of circumstances or something that makes it unfair to hold him/her criminally responsible for it.  So you would think that the rules shaping the defense to be more subjective, but in reality is also objective A. There are three subcategories of excuses: a. D‟s wrongful conduct was undertaken involuntarily i. Two types 1. External

a. Ex. Martin v. State 2. Internal a. Epileptic seizures ii. MPC §2.01 1. deals with involuntariness. a. Involuntary when: i. Someone else moves your body. Not the product of the effort / of the determination of the individual ii. Reflex iii. convulsion 2. Provides a missing elements defense. 3. When the actor acts with pure involuntariness. a. Actus Reus Defense b. Absence of voluntariness is treated as a missing elements defense, not an affirmative defense. b. D‟s wrong is produced by constrained choices. i. Volitional Deficiencies – Decisions that a D makes to engage in wrongful conduct where D is coerced or where he is forced due to threats 1. Duress a. The common law rule requires i. an objective reasonableness test 1. a showing that a person of ordinary and reasonable firmness would have been unable to resist the threat 2. Elements of Duress a. Threat i. a threat by a third person b. Fear i. which produces a reasonable fear c. Imminent danger i. that he will suffer immediate or imminent d. Death or Bodily harm ii. Exception 1. slight injury 2. destruction of property 3. not a defense to homicide b. Pure excuse alternative theory i. Whether D actually lost his capacity under the pressure of real or imagined forces. ii. This is a subjective standard c. MPC i. Blends the two objective and subjective standards 1. evaluates the reasonableness of the fear taking into account the individual‟s circumstances – State v. Toscano ii. Jury would take into tangible factors such as 1. his physical characteristics, 2. his size, 3. had he been mugged or beaten up in the past, etc. iii. They would not take into account general temperamental factors, 1. ex. if he was prone to nervousness iv. Imminence, immediacy and other such limits are given evidential weight 1. Under common law immediacy is a requirement, whereas under MPC it is a matter of fact. So case would still go to jury even if no

immediacy, under MPC. Would not go to the jury under common law, if missing immediacy 2. Coercion 3. MPC §2.09 a. involves coercion or threat by human actor b. Objective Standard – A reasonable person in the D‟s position would have made the same choice c. If we conclude that the D chose the greater evil, but it was reasonable that he or she chose it, we need §2.09. i. Voluntary choice so not §2.01 ii. Not the lesser of two evils so not §3.02 iii. Therefore need §2.09 because it was still the kind of constrained choice that would make it not blameworthy d. Assuming that it is a choice that worked a greater evil, otherwise would be a justification under §3.02 ii. Cognitive Deficiencies – Does not have the information to make the right decision 1. lack of knowledge is excusable only if he was not reckless or negligent in making the mistake 2. Mistake of Fact 3. If it negatives the required mens rea, then missing elements defense a. Otherwise affirmative defense c. Wrongful acts taken by actors, who by virtue of their stature cannot meet the standard of moral blameworthiness; D could not exercise the pure rational choice making i. Infancy ii. Mental retardation iii. Insanity 1. Involves a disability that is gross and verifiable a. not whether he knows what he did was illegal/legal, whether he knew it was moral/immoral 2. Defense focuses on the moment in time when the alleged crime is committed. a. what the D was capable of at the time of the commission of the crime. 3. Presumption of Sanity a. Burden on D to prove insanity by clear and convincing evidence 4. Possible Test a. M’Naghten Test i. Analyze the state of mind at the time the act was done 1. Focus on at the time of the commission of the Actus Reus ii. Have to establish the presence of disease, disorder, or disturbance of the mind 1. Not just a personality characteristic 2. Mere temperament is not enough iii. not a narrow question of what is legal or illegal, it is whether the D knew if his actions were morally wrong iv. Requirements 1. at the time of actus reus, D has disease or disorder AND 2. This illness made him unable to a. decide right from wrong OR b. know the nature of her act b. Irresistible Impulse Test aka Davis Test i. Davis Test = M’Naghten + Volitional Prong ii. Requirements

1. at the time of actus reus, D has disease or disorder AND 2. This illness made him unable to a. decide right from wrong OR b. know the nature of her act OR c. control his/her impulse – Volitional Prong i. Even a D who knows the nature of her act and knows right from wrong, still cannot control her actions because of her mental illness. c. Durham / Product Test i. had to show the irresistible impulse or the error in judgment was CAUSED by /a product of the mental illness ii. very broad and not really used any more d. MPC Test i. A person is not responsible for criminal conduct if at the time of such conduct as a result of mental disease or defect he lacks substantial capacity either to appreciate the criminality (wrongfulness) of his conduct or to conform his conduct to the requirements of law 1. Collapses the two elements of the M‟Naughten Rule 2. Adds a combination of Davis/Irresistible Impulse test 3. Person who thinks he is squeezing a lemon when he is choking a human is by default not criminally responsible, so need to say it twice. 4. Blake vs. US – Guy robs bank on an impulse in a bar, from which he has a long history of not controlling ii. Uses “appreciate” instead of knowing or knowledge 1. Often 5 year old child know things, but may not understand the consequences a. Know a family member has dies but not realize that means they will not see them again 2. The ability to evaluate something not just in a formal sense, but what it means consequentially. 3. Difference between simple cognition (thinking) and affect (emotions). e. Modern Usage – United States v. Lyons i. A person is not responsible for criminal conduct on the grounds of insanity only if at the time of that conduct, as a result of a mental disease of defect, he is unable to appreciate the wrongfulness of that conduc 1. Irrebuttable presumption that all persons who act chose to do so with free will. 2. did away with the volitional prong of MPC a. does not comport with current medicine and science ii. This decision is standard of what you will see today. 5. Hinkley – prosecution had to prove subjective sanity and they had to prove it beyond a reasonable doubt. So the burden was huge in that case. In response, a lot of jurisdictions adjusted the burden of proof. 6. What could the state due with people that are successful in using the insanity defense? a. Guilty but insane i. Simply reject the underlying rational of the insanity defense and send them to jail b. Mandate that they be held in a psychiatric facility – Civil Commitment

i. Subject to periodic reviews ii. Can last longer than criminal conviction / jail time iii. Release dependent on clear and convincing evidence that D has reformed VI. Justification / Self Defense – accept responsibility but deny that it was bad A. MPC §3.02 a. choice of the evils defense could be created by human or non-human b. the person chose between two evils and made a reasonable choice in choosing the less of the two evils c. This is a justification defense d. Self defense of a sub-category of this e. Judgment is reasonable B. Principles a. Self-defense as a justification claim is a sub species of necessity i. Choice of evils defense ii. Specialized version of necessity is self-defense 1. The extent of self-defense is limited by necessity. When necessity ends, the claim ends. 2. If non-deadly threat, then you can only use non-deadly force 3. If it is a deadly threat, then you can use deadly force C. Requirements a. Person is faced by threat of imminent peril of death or serious bodily injury b. The threat be immediate and unlawful c. Response was necessary to save himself therefrom d. the assessment of the need for force has to be honest (subjective) and reasonable (objective) i. D has to genuinely and honestly believe ii. If it is successful, then conclude that what the D did was reasonable honest and necessary iii. Objective standard 1. NY Penal Code in Goetz case a. If belief honest and unreasonable, then no defense b. If honest and reasonable, then complete defense c. All or nothing view D. Subjective Standard a. MPC §3.04 i. use of force is justified when the actor believes that it is necessary 1. this is a subjective position ii. so if honest and unreasonable can still be found guilty of reckless or negligent homicide 1. belief that is unreasonable by definition is reckless 2. not all or nothing, more like an excuse claim 3. Imperfect self defense – involuntary manslaughter, voluntary manslaughter (MD law) a. If belief found to be honest and unreasonable 4. MPC take on deadly force used against non-deadly force a. The MPC approach is that even if the use of deadly force is justified, if it turns out that belief was come to recklessly or negligently, then they could still be held accountable for a crime. b. MPC two part analysis: i. whether the use of deadly force is justified ii. if the belief was come to recklessly or negligently c. People v. Adams – under the circumstances the killing was justified and the belief was not come to recklessly or negligently E. Battered Woman’s Syndrome – belief has to be honest (subjective) and reasonable (objective) a. Three cycle/phase test i. Tension building stage 1. minor battering incidents where woman attempts to placate and be passive to stave off more serious violence ii. Acute battering incident

1. maybe provoked by woman battering escalates into more serious harm iii. Extreme contrition and loving behavior on the part of the battering male 1. male tries to make it up to the woman b. Expert testimony regarding syndrome is material to establish the honest of her states belief that she was in imminent danger of death c. State v. Kelly – H can state that D had the battered woman‟s syndrome and can explain the syndrome in detail, relating it characteristics to D‟s belief, but only to enable the jury to better determine the honest and reasonableness of D‟s belief i. Expert testimony could serve two purposes 1. The common sense notions might not hold in these circumstances. So need an expert to correct jury‟s common sense apprehensions. 2. For the jury to determine who is telling the truth they base credibility on F. Rules on when Expert Testimony can be used a. The intended testimony must concern a subject matter that is beyond the ken of the average juror b. The field testified must be of a state of the art such that an expert‟s testimony could be sufficiently reliable; and c. The witness must have sufficient expertise to offer the intended testimony G. Excepts to Justifications – State v. Abbott a. Duty to Retreat i. For duty to retreat arises have to show 1. when D intends to use deadly force does his duty to retreat arise, not when deadly force is used again D a. does not matter that person acted on has a thin skull 2. D has to have an actual awareness of the opportunity to retreat with safety 3. The opportunity has to be in fact available to D ii. Castle exception to the retreat duty. 1. One does not have a duty to retreat from one‟s home. 2. So even if you are using excessive force (deadly force against non-deadly force), do not have a duty to retreat from your own home iii. MD does have a duty to retreat b. Initial aggressor i. If you start a fight at common law, you do not get to plead self defense ii. You are no longer the initial aggressor, if the other person ups the ante from non-deadly to deadly force H. Excuse and Justification Blend a. In reality sometimes self defense could be either excuse or justification b. State v. Unger – criminal was trying to escape from prison cause of threat of assault. Court held that necessity would apply here and could be an excuse. c. Source of Peril i. Common law 1. whether a D could raise a justification claim of necessity (choice of evils) or an excuse claim for duress depended on what the source of the crisis was. a. If the source was a human agent then the only defense was duress. b. A necessity or choice of evils defense (a justifications claim) could only be raised when the source was a non-human agent. ii. The MPC 1. The duress provision is §2.09 2. The choice of evils is §3.02 3. Permitted the two defenses to overlap so some cases where D can raise both. 4. MPC says that choice of evils defense §3.02 is available regardless of whether the peril was produced by nature or by a human. 5. The duress provision §2.09 is only available when the source of the peril is a human. iii. Hypos

1. Man forces D to drive over 2 drunks a. He cannot claim §3.02 because it not a lesser of two evils. b. May be able to claim duress because it would be a jury question 2. D drives over 2 drunks because brakes fail a. does not have a justification claim under §3.02 b. he does not have a duress claim either because not a human agent VII. Attempts A. Part of inchoate crimes a. Solicitation b. Conspiracy c. Accessory to a crime B. Attempts involve failure of one of three kinds: a. a mistake as to the circumstances i. D engaged in the conduct with the requisite mens rea but misunderstood one or more of the circumstances ii. Mistake of perception iii. Someone who shoots at a dead body thinking it is alive b. Interruptions in the realms of causation i. D completes all of the conduct required for the crime and has the right mens rea, but is not subject to conviction because something intervened ii. Usually talking about attempted murder 1. I stand 5 ft away from my victim and point the gun to his head and pull the trigger but my gun jams c. Failure on the part of the D to complete all of the required conduct i. Focus is on the actus reus ii. Question is did the D complete enough of the conduct to be liable for the attempt C. Mens Rea – Smallwood v. State – HIV attempted murder a. have to have the specific intent or purpose to commit the target offense. i. Infer subjective intent from circumstantial evidence (from objective facts) b. The mens rea required for attempts liability is higher than the mens rea required for the target offense. i. So why does the common law impose this higher level of mens rea i.e. specific intent? Three possible answers: 1. linguistic a. to attempt something is in the ordinary meaning of that word to intent to accomplish it 2. moral a. you are a worse person when you have purpose to bring a harmful result that when you have the knowledge that you are likely to bring one about 3. utilitarian a. purposeful attempts are more likely to be successful than is similar conduct undertaken with knowledge or recklessness c. Common law i. Must have purpose (specific intent) towards both the conduct and the result of the conduct d. MPC i. Must have purpose towards the conduct element ii. Need purpose or knowledge towards bringing about the result e. Most jurisdictions have adopted that the common law requirement of purpose does not apply to circumstantial elements such as age i. A D who attempted intercourse with a 15 year old, then he could be convicted of attempt of statutory rape. D. Actus Reus - when the D does not complete al the actus reus required in the completion of the target offense. a. They might not have been able to complete because i. they were interfered by law official

ii. D changes his/her mind b. Mistake of fact does not raise an actus reus question i. I shoot at my neighbor, but I am mistaken and shoot at his dog. So I am not guilty of murder c. Two extreme views – King v. Baker i. The last proximate act test. 1. That in order to be guilty of a criminal attempt, the D has to commit the last possible act needed for the target offense. ii. the first thought that D had of committing the crime iii. in reality attempt is somewhere in between on this continuum d. Two family of tests for preparation v. attempt i. Proximity Tests 1. what remains to be done 2. Dangerous Proximity Test – People v. Rizzo – robbers picked up before robbing payroll a. only those acts that are so near to its accomplishment that in all reasonable probability the crime itself would have been committed, but for timely interference. b. Often courts look at not only physical proximity and likelihood of success but for official interruption, but also the seriousness of the crime. c. Courts are likely to be more liberal of finding proximity when the crime is more serious d. Factors: i. If target crime was serious OR ii. If in the attempt some other harm occurred 3. The Indispensable Element test a. did the D have control over all the indispensable elements necessary for the commission of the crime ii. how much he or she has already accomplished 1. Equivocality Test a. focuses on how far the D has already come and whether the completed actus reus supports a finding that the D was committing to completing the target offense b. do they support a finding that the D was unequivocally committed to the completion of the crime i. does it support beyond a reasonable doubt the D‟s purpose to commit the crime c. sometimes called the Res Ipsa Loquitur Test d. how likely is it that the D would abandon e. not what remains to be done, but if what has already been done is significant e. McQuirter Test i. the actus reus required is as much as from which the jury can infer the mens rea 1. focuses on the mens rea component 2. permits a jury to convict on very little actus reus ii. and requires only that conduct which is needed to provide evidence of the specific intent iii. how does McQuirter test differ from the equivocality test? 1. McQuirter does not require very much for conviction a. Factors like race can be outcome determinative 2. They are different as a matter of degree a. Temporal time line i. Equivocality D has to have gone further down the time line 1. Has to be more of the conduct as a general matter than is suggested in McQuirter b. how predicted the conduct is of D’s intent to get to the end of the path

i. McQuirter conduct has to be such that the jury MAY infer that D intended the target offense ii. Equivocality that is the ONLY reasonable inference of the D‟s conduct 1. Equivocality focus on what the D has done a. Does the D‟s completed conduct speak for itself? E. Abandonment / Renunciation a. Common Law i. no defense of renunciation. ii. Reasoning was once the elements of a crime had been satisfied you could not undo it. iii. Guilt is present at the moment that there is a concurrence of actus reus and mens rea. iv. Because of this, common law read the line between prep and completed attempt as further down towards the end of the path than the MPC and lots of contemporary US jurisdictions. v. Common law using either equivolcality or McQuirter tests, tended to require more actus reus and leaving open the possibility of D changing his/her mind before the commissions of the crime for as long as possible. b. MPC i. permits a D to avoid liability by completely and voluntarily renouncing his/her criminal purpose ii. if he/she does that it is a complete defense even if the person is passed the point of mere preparation and into the time spectrum that would be sufficient for attempts liability iii. §5.01 1. The actus reus needed is a substantial step. a. Substantial step is conduct which is strongly corroborative of the D‟s intended purpose. 2. does not have to be the only inferable intention unlike the equivocality test 3. Actions that may constitute substantial steps A. lying in wait B. searching for the victim C. following the victim D. seeking to entice the victim to go to the place of crime E. reconnoitering the place contemplated for the crime F. unlawful entry of a structure, vehicle or enclosure where intending to commit the crime G. possession, collection or fabrication of materials to be employed H. soliciting an innocent agent to engage in conduct constituting an element of the crime iv. More subjective than objective. VIII. Theft Offenses A. Robbery a. Taking by force or threat of force against the will of the owner of the property b. Involves Not just the right to possess property (larceny) but also a right to be free from violence B. Larceny a. Involves the taking of property against the claim or right of the owner and without the owner‟s consent b. Legal interest that this is trying to protect is a right to possess the property c. Three requirements i. Invasion of a possessory interest 1. one who is in lawful possession of the property cannot commit larceny by feloniously convertin it to his own use, because larceny is a trespass on the possessory interest Commonwealth v. Tluchak ii. the D has to asport the property. 1. they have to actually carry away the property 2. if you do not move the object away from the owner, then you have not sufficiently violated the possessory interest of the owner 3. In real world courts flexible on this requirement because theory is that D has assumed control of the object

C. D.

E. F. G.

a. Sitting in someone else‟s car and starting the engine, is as good as taking and carrying away the property of another i. This is sufficient enforce over someone else‟s property iii. the invasion be against a claim of right (Issue of consent) 1. If you have assumed control over the store‟s good is in ways that violates the implied consent given by the store a. Ok to take soup can to bakery b. Not ok to put it in pocket and walk out c. Setting of trap must not go further than to afford the would-be thief the amplest opportunity to carry out his purpose, formed without such inducement on the part of the owner of the property, as to put him in the position of having consented to the taking – Commonwealth v. Topolweski d. Larceny v. Extortion i. Extortion 1. Extortion one of the first offenses that was mainly statutory in nature 2. Threat of violence is used to gain consent. a. Owner of property gives consent either by threat or violence, then that consent is enough to defeat larceny 3. If you obtain consent through improper means, then you make be guilty of the crime of extortion. ii. Extortion then differs from larceny because larceny involves a taking without consent 1. Distinguishing line is did the D grant consent Misappropriation a. Different than larceny because through bailment the bailee actually had the right to that property Embezzlement a. Very close to misappropriation b. Involves a wrongful conversion of someone else‟s property, where D had other legal rights to the property in addition to conditional right as in misappropriation Theft by Pretense / by fraudulent misrepresentation Theft by Service a. Eat a meal at a fancy restaurant and then leave without paying Corporation Liability a. Liability of Corporate Entity – Corporation can he held liable for acts of agents i. Reasons Corporations can commit crimes and be held criminally responsible – NY Central & Hudson RR v. United States 1. deterrence argument a. only way to deter the human agents acting within the corporation is to punish the corporation itself b. sometimes difficult to ID the human agent subject to punishment 2. fairness argument a. sometimes you can show that the individual was motivated by the incentives created by the large organization (corporate structure) i. in order to maximize profit cutting corner is encouraged ii. if not encouraged that the conduct is like to occur b. individual actor(s) were acting to benefit the corporation i. if corporation reaps benefits of unlawful conduct, then it should also be liable for the punishment ii. Requirements - United States v. Hilton Hotels Corp 1. There must be a crime committed by an employee or agent a. Price fixing, etc 2. The crime has to be committed within the scope of the agent‟s employment 3. There must be an intent to benefit the corporation

a. a purpose to benefit the corporation is necessary to bring the agent’s acts within the scope of his employment iii. Corporation liable even though actions of agent contrary to general corporate policy and express instructions to the agent – United States v. Hilton Hotels Corp iv. Alternative approach MPC §2.07 1. MPC distinguishes between true crimes and violations a. § 2.07(1)(a) applies to true crimes 2. In order for a corp to be held responsible for true crimes (bribery here is a true crime), the individuals have to be either a. Board of Directors OR b. high managerial officials OR c. the high managerial officials have to ratify the conduct of the lower agents. 3. MPC provides a due diligence defense against §2.055 a. we made special efforts to prevent this from happening i. permits strict liability but with an affirmative defense 4. so in previous Hilton case they would seem to have done their due defense and trying to deter/prevent the agent from rebating – may have been decided differently under MPC 5. More title than functional approach v. Defining high managerial agents? 1. Title v. functional analysis a. Functional Analysis – corporation has placed the agent in a position where he has enough authority and responsibility to act for and in behalf of the corporation in handling the particular corporate business, operation or project in which he was engaged at the time he committed the criminal act – Common Wealth v. Beneficial Finance Co b. Individual Liability of Corporate Agents – liability for corporation or employees i. Mala in se Crimes 1. Have to show actual knowledge for individual Ds a. Constructive knowledge is not sufficient, it has to be actual – Gordon v. United States 2. can be held liable if they ratify or tolerate the crimes perpetuations ii. even if you can prove it by legal fiction for corporation‟s liability, not enough for individual liability iii. Regulatory crime aka Mala Prohibita 1. Corporate executives are culpable for their own failure to exercise the quality of care needed to prevent violations within the realms of their own authority – United States v. Park

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