Bar Review Session and Exam Review for Criminal Law 15 m/c, 1 small essay and 1 long essay -Assault Some jurisdictions don’t have assault even. We need to know what an assault is basically – Not a touching I. Introduction Dudley v. Stephens -Punishment 1. Theories: Utilitariansim – General deterrence: deterring society; Specific Deterrence; Rehabilitation – how do we do it?; Retribution – Punishment for past wrongs, just desserts. 2. Surrounds all of criminal law and is the basis. 3. Society punishing vs. individual actions; criminal vs. civil 4. Consitution: 8th Amendment/Proportionality(death penalty cases mainly)/Due Process(necessity to give people notice of what crime they are being charged with)/Ex Post Facto/Bill of Attainder 5. Statute should not be vague, overbroad – Sometimes in criminal law we use the RULE OF LENITY: lean towards the defendant when there are 2 possible interpretations. If 1 is constitutional, we go with the constitutional one. We might lean towards the defendant’s if both are constitutional. 6. Sometimes the jury will just nullify – NO RIGHT to it, but there may be a power. 7. Legislative perspective – Look at the statute, history, precedent, policy considerations (law and economics) 8. Losing cases for the defense in most all – The appellate decisions are premised on vehicles – 1) Jury instructions; 2) Constituitional Arguments; 3) Sufficiency of the evidence (was it sufficient to sustain the verdict/support the elements – Light most favorable to the prosecution; 4) Improper admission of evidence -Actus Reus + Mens Rea + Attendant Circumstances + Defenses 1. Actus Reus a. Need voluntary act b. Omissikon i. Statute ii. K iii. Status relationship iv. Creating the risk in assisting the victim c. Barber: The act vs. omission may not always be clear. d. Non-voluntary act – Reflex, convusion, unconscious movement, hypnosis, movement that is not willed. 2. Mens Rea a. Guilty mind – No precise definition b. At common law -Intent i. CUPLABILITY APPROACH 1. Intent was divided into specific intent and general intent a. Specific: b. General: c. MPC -Intent i. ELEMENTAL APPROACH 1. Purposely, knowingly, recklessless (substantial disregard), negligently d. Motive isn’t same e. Might look at statute, different statutes prior in order to determine what intent may be f. Transferred intent – Misaim, not killing the person you are aiming for. No TI in misidentification – there is not a need because you still got them – If causes harm to both, no need for TI. Don’t need it if crime precludes it. Don’t need it if a different harm is caused. g. Intent can be inferred through the circumstances or from the natural or probable consequences of the act but no instruction needed. (Sandstrom v. MO) – You cannot presume the natural consequences of one’s act and therefore cannot instruct that the jury has to presume, but you can instruct them that they may. h. Willful blindness: We may get the intent. The ostrich trying to avoid it and not see the intent. Juries will sometimes say that they were willfully blind and should be held liable for the intent. i. Exceptions for Mens Rea i. Strict Liability Crimes 1. Disfavored by courts 2. Judicial economy may allow it a. When no mens rea in statute b. Not from the common law c. Small penalty d. Little stigma to the crime e. Malem Prohibitum in stead of Malem in se f. Reasonable standard, i.e. speeding g. Legislative policy – one that would lead to it being strict h. Public welfare type of offense – might be strict liability 3. Exceptions to Strict a. Felony murder b. Statutory rape 4. Strict in MPC a. Violation – must be no jail time Mistake of Fact Good faith belief irrespective of whether it was reasonable or unreasonable General intent crime – Did the defendant have a good faith belief and was it legal and was the belief reasonable MPC Appraoch – Does the mistake of fact negate an element of the offense?? Always looks at the element of the offense and whether the element is negated (a key distinction between it and common law). Strict liability will not deal with mistake of fact because we aren’t even looking at mens rea Mistake of law Ignorance of the law is no excuse except when there is a reasonable reliance on an official interpretations of the law. Fair notice might be due process violation. The Cheek case – Tax statute – Willfully. The court said it might be an excuse there. 3. Causation a. Actual Cause (But for Cause) i. Factors we might want to look at – Accelerating cause, Concurrent sufficient cause, Obstructed cause b. Proximate Cause i. Intervening factors 1. Diminimus 2. Forseeable 3. Intended consequence 4. Dangerous forces come to rest 5. Voluntary human intervention 6. Omission ii. MPC Approach 1. Elements of the offense – Was the cause related to the element of the offense? 4. Attendant Circumstances -HAVE TO HAVE CONCURRENCE BETWEEN THESE FACTORS – THE ELEMENTS MUST COME TOGETHER, WE MAY NOT HAVE A CRIME EVEN WITH THE ELEMENTS -Prosecutor has burden to prove each element beyond a reasonable doubt. -If it is not an element of the crime, affirmative defenses may shift the burden to the defendant. II. Specific Offenses A. Murder a. Dead body b. Some jurisdictions might have year and day rule c. At common law, mens rea was malice aforethought d. Many states have moved away to various degrees i. First: premeditation and deliberations 1. Pre-Meditation: Fast as a twinkling of an eye in some states a. Want of provocation b. Elements of voluntary manslaughter exist i. Adequate provocation (mere words are not enough, unless informational words and that jurisdiction ii. Sudden heat of passion iii. No cooling off period iv. Causal connection 1. Etreme emotional disturbance in MPC ii. Abandoned and malignant heart – Another murder offense as in iii. Intent to abuse might not be same as intent to kill. iv. Gross vs. Simple negligence in the context of murder – Williams v. Felony murder 1. Disfavored 2. Many exceptions to it a. Had to be an inherently dangerous one i. Nature of the offense – circumstances surrounding the act b. Death must be a consequence of the felony – killed in furtherance of the felony. c. Co-Felon Rule: Murder by one other than the felons. d. Ireland Rule: e. Merger Rule f. Misdemeanor Manslaughter Rule: instead of felony B. Assault C. Rape a. In some jurisdictions force may be an issue, Against her will – Gender neutral sexual assault statute, consent or not, marital rape rule, rape by fraud. D. Theft a. Larceny at common law i. Trespassory taking ii. Asportation iii. Personal property of another iv. With the intent to permanently deprive b. Today – Consolidated i. Embezzlement ii. Breach of entrustment iii. Larceny iv. False pretenses – trickery to secure E. Robbery a. Theft with force or intent to use force or appearance of force or fear of force. b. Force + Theft or feeling of force F. Burglary a. Breaking and entering in order to commit a felony therein (at nighttime according to common law). III. Inchoate Offenses A. Attempt a. A specifc intent for the crime of intent b. Mere preparation is not enough i. Look at different test 1. What remains to be done a. Last act – not used b. Physical proximity – How close c. Dangerous proximity – Nearness of danger/degree of apprehension d. Indispensible element test 2. What has occurred a. Probable desistence b. Abnormal step test c. Unequivocality test d. Res Ipsa Loquitur e. MPC Test i. Uses a substantial step c. Impossiblity i. Factual: Not a defense (picking empty pocket ii. Legal: 1. at common law it was a defense (Jaffe, examples was accepting goods believed to be stolen which were not infact stolen or shooting a stuffed deer). 2. Not a defense today unless it is a true legal impossibility which really means it is not a crime. d. Did the person abandon the attempt? i. Was it voluntary and complete? B. Solicitation a. Asking, inviting, hiring another to commit a crime b. Getting someone to do the crime for you c. You are most likely going to get charged with the crime if the party didn’t know about it i. Innocent instrumentality d. Some juris. Require actual communication of the request e. MPC does not require actual commucation C. Conspiracy a. Specific intent crime i. Agreement ii. To the essential plan 1. Unilateral agreements: officer may be part 2. Bilateral: two real people iii. To the crime and must have knowledge and the intent to commit. iv. Might also have to have overt act v. In some statutes might also require overt act (Federal conspiracy statutes) b. Prosecutorial Advantages i. Policy considerations 1. Joinder 2. Guilt by association 3. Benefit received by prosecution of choosing the venue: where act occurred, where agreement was formed 4. Evidentiary advantages – more eveidence in 5. Uncompleted crime 6. No merger in federal – Can charge both crime and conspiracy. a. May be guilty of the substantive offense if it is foreseeable and in furtherance of the crime c. One conspiracy d. Two conspiracy i. Wheel ii. Chain iii. Unilateral iv. Bilateral 1. Problem -Wharton’s Rule: Crime by definition required more than the number of people. e. Abandonment of the act i. Voluntary and complete and in some cases we may have to notify the authorities or individuals that you formed the conspiracy with D. Accomplice Liability a. Mere presence is not enough b. Four Degrees in Common Law i. Principal in the First ii. Principal in the second iii. Accessory before the fact iv. Accessory after the fact c. Underlying crime – Needs to have for aiding and abetting d. Accomplice cannot use excuses of the principle. e. Might also need corroboration in some jurisdictions to support that liability. f. Is Kervorkian an accomplice? Depends on what was held – The court held that attorney general could not control the assisted suicide law in OR. g. Need mens rea – Intent to aid the principle and aid in the commission of the crime i. Sometimes look at the natural and probable consequence of the act h. Vicarious liability: Premised on the people i. White collar crime IV. Defenses A. Entrapment a. Was predisposed? B. Self-Defense a. Crime of necessity which begins when necessity begins and ends when necessity ends b. Has to be proportional – can’t use force excessive to the harm c. Threat i. (actual or apparent of use of deadly force against the defender) ii. Unlawful and immediate iii. Imminent danger of serious bodily harm or death and response was necessary 1. Objective or subjective interpretation d. Not available to the aggressor – If aggressor withdraws in good faith, they can reassume the role if they are in fact put in position of imminent danger death or great bodily harm i. Retreat rule: Common law: Cannot use deadly force if you could safely retreat 1. Exceptions 2. Alternative would be perilous might be more dangerous 3. Castle doctrine: Don’t have to retreat in own home a. If you provoke though it might be different. ii. Majority today: No duty to retreat e. Mere words do not constitute provocation f. MPC: Subjective standard C. Defense of Others a. Common law: Limited by relationship, could only use force if the party being defended would have been justified using same force(Act at peril rule) b. Reasonable person in the actor’s position can intervene in circumstances that the third-person would be justified in using. i. Policy: Person more likely to intervene c. Defense of property is not OK unless it is habitation in own home D. Necessity a. A defendant faced with clear and imminent danger b. Can reasonably expect that his or her action will be effective to abate the danger as a direct cause c. No legal alternative to abate d. Legislature has not precluded the defense E. Civil disobedience a. Direct : Breaking the law protested b. Indirect: Violating a law or interfering with a policy not in protest i. Not necessity defense here F. Duress a. Well grounded fear that threat would be carried out b. Common law, no defense with murder c. Some states permit now to reduce to manslaughter G. Intoxication a. Voluntary i. Mere status – Drug addict – can’t punish ii. Can punish for public drunk iii. Rarely will excuse 1. Long term intoxication – type of insanity a. Voluntary intoxication at common law: General intent crime was never excuse, but specific intent crime it could excuse b. Some states may allow reduction to murder in 2nd degree. Felony murder c. Is there an act? §2.01 of MPC: There are certain things that might not be an act (reflex or convulsion and therefore no act) b. Involuntary i. Types 1. Coerced: induced by duress or coercion 2. By innocent mistake: tricked 3. Unexpectedly by prescribed medicine 4. Pathological: grossly excessive due to … a. Only implies if person has not reason to know b. Temporary psychotic action ii. Common law: acquittal for no general or specific intent iii. MPC: If it negate an element it can be defense, pathological is affirmative defense as insanity c. Some used as insanity i. Common law: Fixed insanity… H. Insanity a. At time of the offense b. Incompetence at time of trial: Sufficient present ability to consult with attorney with reasonable degree of rational understanding of the proceedings against him or her. c. Looks at the time of the offense in insanity. i. Approached 1. M’Naghten: sane until proven otherwise – at the time of committing was their a defect of reason and the individual didn’t know the nature or quality of the act and did not know it was wrong a. Limited to cognitive b. Fails to look at volition c. Limits psychiatric testimony 2. Irresistible impulse: can’t distinguish right from wrong due to mental illness/disease of mind or brain a. Excludes those crimes that are committed after extensive brooding or melancholy b. Limited to volitional aspect and doesn’t look at cognitive aspect 3. Durham: Was the act a product of mental disease? a. Opens door to trial by label b. Do MDS usurp jury c. How do we define 4. ALI Test: Person is not responsible for criminal conduct if at the time of the conduct as a result of mental disease he lacks capacity to conform conduct…Somewhat a combination of the first two ii. Moved away from prosecution having to show to affirmative defense 1. Preponderance 2. Clear and convincing iii. Guilty but mentally ill iv. Diminished capacity 1. Look at mens rea a. Did they have ability to form intent b. Does it negate element of offense i. Some limited to specific intent ii. Some permit iii. Some don’t allow iv. Partial responsibility in a few states v. Some limited to homicide 2. MPC: Reduce murder to manslaughter when under extreme disturbance for reasonable person under the circumstances.