I) Punishment: Theories: 1) Utilitarianism: Reasoning: -Deterrence – The utilitarian theory is essentially one of deterrence – punishment is justifiable if, but only if, it is expected to result in a reduction of crime. Punishment must be proportional to the crime, i.e., that punishment be inflicted in the amount required (but no more than is required) to satisfy utilitarian crime prevention goals. Utilitarians consider the effect of a form of punishment in terms of both general deterrence and specific (or individual) deterrence. When the goal is general deterrence, punishment is imposed in order to dissuade the community at large to forego criminal conduct in the future. When the goal is specific deterrence, punishment is meant to deter future misconduct by an individual defendant by both preventing him from committing crimes against society during the period of his incarceration (incapacitation), and reinforcing to him the consequences of future crimes (intimidation). -Rehabilitation – Another form of utilitarianism is rehabilitation (or reform). Examples of rehabilitative “punishment” include: psychiatric care, therapy for drug addiction, or academic or vocational training. 2) Retributivism – Under a retributive theory of penal law, a convicted defendant is punished simply because he deserves it. There is no exterior motive such as deterring others from crime or protecting society – here the goal is to make the defendant suffer in order to pay for his crime. Retributive theory assigns punishment on a proportional basis so that crimes that cause greater harm or are committed with a higher degree of culpability (e.g., intentional versus negligent) receive more severe punishment than lesser criminal activity. 3) Denunciation (Expressive Theory) – The denunciation theory – which holds that punishment is justified as a means of expressing society’s condemnation of a crime – has both utilitarian and retributive components. Under a utilitarian theory, denunciation is desirable because it educates individuals that the community considers specific conduct improper, channels community anger away from personal vengeance, and serves to maintain social cohesion. Under a retributive theory, denunciation serves to punish the defendant by stigmatizing him. Considerations: 3 Things that the Court Looks At: -Nature of the Offense -Nature of the Offender -Protection of Public Interest Constitutional Limitations on Criminal Law: 1) Limits on Federal Action – The “Bill of Rights” restricts the power of the federal government in its relationship to individuals. -Article I, Section 9, paragraph 3 provides that: "No Bill of Attainder or ex post facto Law will be passed." -Bill of Attainder -A legislative act that singles out an individual or group for punishment without a trial. 2) Limits on State Action – The Fourteenth Amendment to the United States Constitution imposes limits on state government. -The 14th Amendment: a) prohibits states from making or enforcing “any law which shall abridge the privileges or immunities of citizens of the United States” b) “deprive any person of life, liberty, or property without due process of the law;” c) “deny to any person within its jurisdiction the equal protection of the laws.” Legality: 1) Common Law – A person may not be punished unless his conduct was defined as criminal at the time of commission of the offense. This prohibition on retroactive criminal lawmaking constitutes the essence of the principle of legality. -There are three interrelated corollaries to the legality principle: a) Criminal statutes should be understandable to reasonable law-abiding persons. A criminal statute must give “sufficient warning to men of common intelligence as to what conduct is unlawful.” A person is denied due process of law if he is convicted and punished for violation of a statute that lacks such clarity. Statute cannot be vague or overbroad. b) Criminal statutes should not delegate basic policy matters to police officers, judges, and juries for resolution on an ad hoc and subjective basis. c) The lenity doctrine -Judicial interpretation of ambiguous statutes should “be biased in favor of the accused.” 2) Model Penal Code – The Model Penal Code does not recognize the lenity principle. Section 1.02(3) requires instead that ambiguities be resolved in a manner that furthers the general purposes of the Code and the specific provision at issue. II) Examination of Situation: Examination of Statute: 1) Look for the clear meaning of the statute. 2) Look at the legislative history. 3) Look at case law. 4) Look at policy considerations. Examination of How a Case Made It to Appeal: Things to Look for in an Appeal: 1) Constitutionality – Violation of Due Process, Vague, 14th Amendment, etc. 2) Jury Instruction – The judge incorrectly directed the jury. 3) Insufficient Evidence – Not enough evidence provided to prove an element. 4) Inadmissibility of Evidence -Judge wrongfully excluded/allowed evidence. III) Elements of a Crime: -Actus Reus + Mens Rea + Causation + Attendant Circumstances = Crime 1) Determine the Actus Reus: “Actus reus” refers to the physical aspect of the criminal activity. The term generally includes (1) a voluntary act (2) that causes (3) social harm. -Was there an Act or Omission? -Omission – Failure to Perform a Legal Duty to Act. 5 Ways a Legal Duty to Act Can Be Created: 1. Statute 2. Contract –Implied or Express -Taking Care of Elderly or Handicapped 3. Voluntary Assumption of Care – If you start to render First Aid, then you must continue if it would leave the person in a worse position than when you started. 4. Special Relationship – Parent to Child 5. Wrongful Creation of Peril – Intentional or Unintentional – If you harm someone, then you have a duty to assist them. Defenses for Attacking Actus Reus: A. Infancy B. Insanity C. Involuntary: Types: -Reflexive -Unconscious -Involuntary Intoxication -Asleep (Sleep Walking) -Convulsive (Epilepsy) Inchoate Crime: Crimes that do not necessarily require an act, require specific intent: A. Conspiracy: • Elements: -Agreement -Unlawful Act -Knowledge and Intent to Agree -Overt Act (a statement plus an act in furtherance of the agreement/conspiracy) is not Necessary * Federal Drug Conspiracy is an exception, overt act is needed • Prosecutorial Advantages: -Joinder of Co-Conspirators – Guilt by Association – “Swans don’t swim in the sewer.” -Get to Choose the Venue -Evidentiary Advantages -Expanded Relevant Evidence -Merger – can also charge the substantive act -Don’t Have to Wait for the Crime to be Committed -Pinkerton’s Rule – Can be liable for co-conspirator’s acts if they were (1) foreseeable and (2) in furtherance of the crime. • Types: -Bilateral Conspiracy – Both parties have intent -Unilateral Conspiracy – One party has intent and the other is a faker (police officer or informant) -Wheel and Spoke Conspiracy – Example: A in the middle with B, C, D, E around like a wheel -Chain Conspiracy – Example: A B C -Single Conspiracy – All parties part of one conspiracy -Multiple Conspiracies – Most favorable to the defense as it potentially eliminates many of the prosecutions evidentiary and jurisdictional advantages • Defenses: -Abandonment – May be a defense if the renunciation is complete and voluntary and the proper authorities are alerted/steps taken to thwart the crime. -Wharton’s Rule – If by its very nature the crime requires more than one person, then conspiracy cannot be charged unless you have more people than are necessary to commit the crime. (Note: Now this is just a presumption). -Plurality is needed, but there can just be an unindicted coconspirator. B. Attempt: Planning or trying to commit a crime is a crime. Mere preparation is insufficient though. • Tests: Tests That Focus on What is Left to Do: -Last Act Test – an attempt occurs at least by the time of the last act but this test does not necessarily require that each and every act be performed on every occasion. -Physical Proximity Test – the defendant’s conduct need not reach the last act but must be “proximate” to the completed crime. -Dangerous Proximity Test – an attempt occurs when the defendant’s conduct is in “dangerous proximity to success,” or when an act “is so near to the result that the danger of success is very great.” -Indispensable Element Test – an attempt occurs when the defendant has obtained control of an indispensable feature of the criminal plan. Tests That Focus on What has Already Been Done: -Probable Desistance Test – an attempt occurs when the defendant has reached a point where it was unlikely that he would have voluntarily desisted from his effort to commit the crime. -Unequivocally (or res ipsa loquitur) Test – an attempt occurs when a person’s conduct, standing alone, unambiguously manifests his criminal intent. -Abnormal Step Test – Step taken that would be considered abnormal by a law abiding individual -Model Penal Code Test – Substantial steps were taken • Facts: -Always a specific intent crime -Public Policy: It is a crime as we want to stop crime from being committed -Attempt is not a crime by itself, it is attached to the crime being attempted, such as Attempted Burglary -Has to be more than “Mere Preparation” • Defenses: Valid Defenses: -True Legal Impossibility – Attempt to do something that you think to be a crime, but it is not a crime. Can’t be charged if there is no crime. -Abandonment – Allowed in some jurisdictions, but must be voluntary and complete. Invalid Defenses: -Factual Impossibility – Attempt to commit a crime, but circumstances make it impossible to complete, Example: Pickpocket but individual has nothing in their pocket. C. Possession – Exercise of dominion and control over the object with an intent to possess it, having had a reasonable opportunity to dispossess the object. (Examples: Burglary tools, Narcotics, etc.). D. Solicitation – Asking, requiring, inviting, requesting, hiring, or ordering another person to commit a crime with the intent that the other person actually commit the crime. • 2 Views: -Some states say that communication has to be completed. -Model Penal Code states that communication does not have to be completed. Notes: -Innocent Instrumentality: If a person is asked to commit a crime, and they do not know that it is a crime, then they are an innocent instrumentality. -Always requires a specific intent. II) Determine Mens Rea: Willfulness of the Act/Omission: -Was a Mens Rea Required? Answer is yes unless it is Strict Liability. -Common Law can approach crimes by either culpability or by an elemental approach. -Model Penal Code only uses the elemental approach. A. 2 Types of Intent: • General – Only one intent in the statute o Valid Defenses: -Mistake of Fact – Must be a reasonable one or it is not a defense. -Involuntary Intoxication – If voluntary, it is not a defense. o Classification of Crimes: -Rape -Murder -Battery -Involuntary Manslaughter o Notes: -All crimes require a general intent -A jury can infer general intent from the doing of the act. • Specific – More than one intent in the statute o Requirements: -Doing of an act with a specific intent to commit the crime. o Valid Defenses: -Voluntary Intoxication -Mistake of Fact -Others o Classification of Crimes: -Premeditated Murder – 1st Degree -Attempt -Solicitation -Assault -Robbery and Larceny -Forgery -False Pretenses – Statutory language must include “intent to defraud.” -Embezzlement o Notes: -Must have the general intent along with the specific intent -The existence of the specific intent cannot be inferred from the doing of the act. B. Transferred Intent: When the defendant intends a harmful result to Person A and in trying to carry out that intent, they cause a harmful result to Person B, the intent to harm Person A is transferred to Person B. • Exceptions to Transferred Intent: -Intend to harm one person, but you also harm another person. -Misaim – Not Misidentification, because with misidentification, there is no need to transfer the intent, the person that the harm was intended for was harmed -Statute – If the statute specifically says that the intent cannot be transferred, then no intent can be transferred. -Different Crime – If a different crime than was intended is committed, then the intent for the first crime cannot be transferred to the second. C. Strict Liability: • Considerations: -If there is a Mens Rea, then it is not Strict Liability. -Crime does not require an awareness of all factors. o Likely to be Strict Liability: -Public Welfare Offenses -Low Stigma Offenses -Need for Simple Prosecution – Example: Speeding -Malum In Se Crimes – Crime that is inherently evil. o Not Likely to be Strict Liability: -Harsh Punishment -High Stigma Crimes -Common Law Crimes -Malum Prohibitum – Crime that is wrong because the legislature says that it is wrong. • Notes: -Mistake of Fact and Voluntary/Involuntary Intoxication are not defenses. -Strict Liability Crimes are disfavored in the law as they would not achieve deterrence or rehabilitation since the person doesn’t have any intent to commit the crime in the first place. -Model Penal Code states that there is no strict liability unless punishment does not include jail time. -Underlying policy of Strict Liability is efficient and quick justice. Model Penal Code: • Elements: From highest standard to the lowest: -Purposely – Conscious object to engage in conduct or to cause a result. -Knowingly – Aware of the nature of one’s conduct or the existence of circumstances and aware that one’s conduct will be practically certain to cause the result. -Recklessly – Conscious disregard of a substantial and unjustifiable risk and a gross deviation from a law abiding standard of conduct. -Negligently – Should have been aware of a substantial and unjustifiable risk and a gross deviation from a reasonable person’s standard of care. • Notes: -“Willfully” requires proof that the defendant knew conduct was unlawful, not that the defendant also knew of federal statute requirements. -If you are at a level or above, then you have met the requirement for that standard. III) Causation: • 2 Types of Causes: o Actual Cause (or “Cause-in-Fact”) [A] Common Law [1] “But-for” test – There can be no criminal liability for resulting social harm “unless it can be shown that the defendant’s conduct was a cause-in-fact of the prohibited result.” In order to make this determination, courts traditionally apply the “but-for” or “sine qua non” test: “But for the defendant’s voluntary act(s), would the social harm have occurred when it did?” [2] Multiple Actual Causes – When a victim’s injuries or death are sustained from two different sources, any of the multiple wrongdoers can be found culpable if his act was “a” cause-in-fact of the injury or death. It is not necessary that any act be the sole and exclusive cause-in-fact of injury. [3] Accelerating a result – Even if an outcome is inevitable – e.g., everyone dies – if defendant’s act accelerated death, he can be found criminally liable. The “but-for” test can be stated in such circumstances as “but for the voluntary act of the defendant, would the harm have occurred when it did?” E.g., a defendant shoots a terminally ill patient may still be found guilty of homicide since although the victim’s death was inevitable, it would not likely have occurred when it did but for the defendant’s unlawful act. [4] Concurrent Causes – If, in the case of infliction of harm from two or more sources, each act alone was sufficient to cause the result that occurred when it did, the causes are concurrent and each wrongdoer can be found criminally liable. [5] Obstructed Cause – If a defendant commits a voluntary act intending to cause harm – e.g., shooting a victim in the stomach intending to kill the victim – but another wrongdoer commits a more serious injury that kills the victim sooner, the initial wrongdoer might only be convicted of attempt to kill since the subsequent wrongdoer’s act obstructed his goal to killing the victim. [B] Model Penal Code – The Model Penal Code applies the but-for (sine qua non) rule. o Proximate (or “Legal”) Cause; Common Law [A] Direct Cause – An act that is a direct cause of social harm is also a proximate cause of it. [B] Intervening Causes – An “intervening cause” is an independent force that operates in producing social harm, but which only comes into play after the defendant’s voluntary act or omission; e.g., the intervention can occur as a result of wrongdoing by a third party, or as the result of a dangerous or suicidal act by the victim, or a natural force (“an act of God”). When an intervening cause contributes to the social harm, the court must decide whether such intervening cause relieves the defendant of liability. If so, the intervening event is deemed a “superseding cause” of the social harm. [1] De Minimis Contribution to the Social Harm – In some cases, if the defendant’s voluntary act caused minor social harm compared to the social harm resulting from a substantial, intervening cause, the law will treat the latter as the proximate cause of the social harm. [2] Foreseeability of the Intervening Cause – Some cases have held that the defendant cannot escape liability if the intervening act was reasonably foreseeable, whereas an unforeseeable intervening cause is superseding in nature. However, in determining foreseeability, the law tends to distinguish between “responsive” (or “dependent”) and “coincidental” (or “independent”) intervening causes. A responsive intervening cause is an act that occurs as a result of the defendant’s prior wrongful conduct. Generally, a responsive intervening cause does not relieve the initial wrongdoer of criminal responsibility, unless the response was highly abnormal or bizarre. E.g., a defendant who wrongfully injures another is responsible for the ensuing death, notwithstanding subsequent negligent medical treatment that contributes to the victim’s death or accelerates it. However, grossly negligent or reckless medical care is sufficiently abnormal to supersede the initial wrongdoer’s causal responsibility. A coincidental intervening cause is a force that does not occur in response to the initial wrongdoer’s conduct. The only relationship between the defendant’s conduct and the intervening cause is that the defendant placed the victim in a situation where the intervening cause could independently act upon him. The common law rule is that a coincidental intervening cause relieves the original wrongdoer of criminal responsibility, unless the intervention was foreseeable. [3] Apparent Safety Doctrine – A defendant’s unlawful act that puts a victim in danger may be found to be the proximate cause of resulting harm, unless the victim has a route to safety but instead puts herself in further harm, which causes the injury of death. E.g., a spouse’s physical violence causes his wife to flee the house on a freezing night, and although the wife can find nearby shelter with a relative or friend, decides to spend the rest of the night outside, and dies from freezing temperature. [4] Free, Deliberate, Informed Human Intervention – A defendant may be relieved of criminal responsibility if an intervening cause, e.g., a victim chose to stay outside in the freezing night and consequently died, was the result of a free, deliberate and informed human intervention. A subsequent dangerous action that caused the victim’s injury or death would not relieve the defendant of liability is such act resulted from duress. [5] Omissions – An omission will rarely, if ever, serve as a superseding intervening cause, even if the omitter has a duty to act. E.g., a father’s failure to intervene to stop a stranger from beating his child will not ordinarily absolve the attacker for the ensuing homicide, although the father may also be responsible for the death on the basis of omission principles. o Proximate Cause (Actually, Culpability); Model Penal Code -Unlike the common law, the “but-for” test is the exclusive meaning of “causation” under the Model Penal Code. The Code treats matters of “proximate causation” as issues relating instead to the defendant’s culpability. That is, in order to find the defendant is culpable, the social harm actually inflicted must not be “too remote or accidental in its occurrence from that which was designed, contemplated or risked. [MPC §2.03(2)(b), (3)(c)] In such circumstances, the issue in a Model Code jurisdiction is not whether, in light of the divergences, the defendant was a “proximate cause” of the resulting harm, but rather whether it may still be said that he caused the prohibited result with the level of culpability—purpose, knowledge, recklessness, or negligence—required by the definition of the offense. In the rare circumstance of an offense containing no culpability requirement, the Code provides that causation “is not established unless the actual result is a probable consequence of the defendant’s conduct.” [MPC § 2.03(4)] This would mean that in a jurisdiction that recognizes the felony-murder rule, but which applies Model Penal Code causation principles, a defendant may not be convicted of felony-murder if the death was not a probable consequence of his felonious conduct. IV) Attendant Circumstances – An “attendance circumstance” is a fact or condition that must be present at the time the defendant engages in the prohibited conduct and/or causes the prohibited result that constitutes the social harm of the offense. Often an attendant circumstance is an element of the offense, e.g., the crime of burglary – the breaking and entering of the dwelling house of another at nighttime – contains an elemental attendant circumstance that the crime must occur at night. IV) Crimes: I) Crimes Relating to Property: • Arson: -Malicious burning of the dwelling house of another -Modern Statutes – Purposeful burning of a structure • Burglary: -Breaking and entering of the dwelling house of another at night time with the intent to commit a felony therein -Modern Statutes – Expanded to include entering a structure with intent to commit offense, unless premises are, at the time, open to the public (some jurisdictions also include vehicles) • Larceny: -Trespassory taking and carrying away of the personal property of another with intent to permanently deprive them of that property; includes finding lost property with knowledge or means of discovering ownership -Possession, not title (deprived of lien interest) • Larceny by Trick: -Obtaining possession by fraud (cheating, gambling) • Embezzlement: -Fraudulent conversion of property of another by one who is already in lawful possession of it • False Pretenses: -Obtaining title by fraud (sale or trade transaction) -Money obtained by fraud other than gambling • Robbery: -Larceny from person or presence of another by force or fear (larceny plus assault) II) Crimes Against the Person: • Homicide: o Common Law Murders: The unlawful killing of a human being with malice aforethought. -Malice Aforethought: Acting with a depraved heart from these states of mind: a) Intent to kill b) Intent to inflict great bodily harm c) An awareness that human like is being unjustifiably risked (ex. shooting into a moving train) d) Intent to commit a felony o Common Law Voluntary Manslaughter: The unlawful killing of a person without malice, upon a sudden “heat of passion” due to reasonable provocation. -Elements: a) Sudden and intense heat of passion in the mind of an ordinary person causing him to lose self-control b) Provocation (ex. threat of deadly force or finding spouse in bed with another) c) No cooling-off period in time for a reasonable person d) Defendant did not cool off e) Words are insufficient provocation unless they convey information sufficient to provoke heat of passion o Common Law Involuntary Manslaughter: Death caused by criminal negligence or by an unlawful act (ex. unintended killing in the course of a misdemeanor). o Statutory 1st Degree Murder: Under statutory scheme, all murders are Second Degree unless Deliberate and Premeditated killing. -Premeditated when defendant actually reflected on the killing even if only briefly -First Degree Felony Murder: a) Committed during the course of a felony including inherently dangerous felonies (arson, kidnapping, robbery, burglary, and rape) b) Defendant must be guilty of the underlying felony c) Death should be reasonably foreseeable d) Place of temporary safety – once felon has reached this, subsequent deaths caused are not felony murders e) Redline Rule – victim or police officer resists or shoots felon to prevent crime or escape, co-felon is not liable for the death of the felon, but still can be liable for the death of a 3rd party bystander o Causation: -Year and a Day Rule: If the person dies within a year and a day of the injury by defendant, then the defendant is responsible for the death. -The defendant’s conduct must be the factual cause of the death (but for the defendant’s conduct, the result would not have occurred). -Superseding Factor: Something that breaks the chain of proximate causation between the defendant’s act and the victim’s death (defendant remains responsible for all natural and probably consequences of his actions). • Battery: Unlawful touching of another person resulting in an offensive touching or bodily injury. -In some jurisdictions, criminal negligence is enough and a battery does not need to be intentional. -Touching need not be direct (ex. unlawfully applying force to object resulting in offensive touching or bodily injury to person) -Aggravated Battery: In most jurisdictions, batteries are aggravated and punished as felonies, based on: a) The means used to perpetuate the offense (ex. a deadly weapon is used). b) Resultant harm (ex. serious bodily harm). c) Special status of the victim (ex battery of a police officer in the performance of his duty). • Assault: o Attempted Battery: -A serious attempt to commit a battery which fails -Some jurisdictions require the attempt to be coupled with a present ability to succeed (ex. an unloaded gun cannot succeed). o Intentional Creation of Imminent Apprehension of Battery: -Here, if A threatens B with an unloaded gun for the purpose of frightening B, even if A knows the gun is unloaded, A is guilty of this type of battery. o Aggravated Assault: -In most jurisdictions, certain type assaults are aggravated based on: a) Intent to create a more serious crime. -Assault with intent to commit murder or rape is punished more severely than simply assault (note: defendant must actually intend to commit a more serious crime). -Assault merges with the completed crime. b) Means used to perpetuate the offense (ex. assault with a dangerous weapon). c) Special status of the victim (ex. assault of a police officer in the performance of his duty). III) Model Penal Code Offenses: • Inchoate Crimes: o Criminal Attempt: Purposely engages in criminal conduct with an act that constitutes a substantial step toward commission of a crime (ex. lying in wait, enticing a victim, scouting the site of a crime, possession of unlawful materials, or soliciting an innocent agent). o Criminal Solicitation: Purposely encourages another verbally or by conduct to commit a crime, with the intent that they actually commit the crime. o Criminal Conspiracy: Purposely agrees to aid or engage in crime with another -Requires an overt act. -Joint liability with co-conspirators whether they are known or unknown. • Criminal Homicide: Purposely, knowingly, recklessly, or negligently causes the death of another. o Murder: -Purposely or knowingly -Recklessly by manifesting extreme indifference to human life -Felony of the 1st Degree -Aggravating circumstances, such as a killing during the attempt or commission of a felony o Manslaughter: -Recklessly -Committed under extreme mental disturbance with a reasonable explanation -Felony of the 2nd Degree o Negligent Homicide: -Committed Negligently -Felony of the 3rd Degree • Felonies: o Assault: Attempts to or causes bodily injury to another. o Kidnapping o Rape: Male who has sexual intercourse by force or impairment of power with a female who is not his wife, or deviate sexual intercourse by force or imposition (engages or causes another to engage in deviate sex). -Defenses: a) Mistake as to Age -Unavailable under 10 -Over 10 – Proof by preponderance of the evidence b) Spouse -Unavailable if living apart under judicial decree -Woman may be convicted as an accomplice c) Sexually promiscuous complainants -Proof by preponderance of the evidence d) Prompt Complaint -Within 3 months • Arson: -Purposely start a fire or cause an explosion to destroy the structure of another or your own structure for the purposes of collecting insurance. -Recklessly places another or a structure in danger. -Failure to control or report a dangerous fire (misdemeanor). • Burglary: Purposely enters a structure to commit a crime, unless the premises are open to the public or the person is privileged to enter. • Robbery: In the course of committing theft, defendant inflicts or threatens immediate serious bodily harm. • Theft: -Unlawfully takes or exercises control with the purpose to deprive another of their property -Deception or Extortion -Theft of lost property – Failure to take responsible measure to restore the property to its rightful owner. -Purposely receiving stolen property V) Defenses: I) Justification: When the commission of the proscribed act is justified and, therefore, not appropriate for criminal sanctions. • Crimes Against the Person: Self Defense, Defense of Property, and Prevention of a Crime o Non-Deadly Force: -A person my use such force as reasonably appears necessary to prevent the imminent use of unlawful force on them, short of deadly force. -There is no duty to retreat before using non-deadly force. o Deadly Force: -May only be used in self defense when it reasonably appears necessary to prevent immediate death or serious injury or to prevent the commission of a serous felony involving risk to human life. -May only be used against an attacker using unlawful force who has initiated the aggression. -Retreat Rule: At common law, one must retreat rather than use deadly force unless they are at their home or business (most states have adopted the rule that there is not duty to retreat unless it can be made in complete safety). o Right of Aggressor to Use Self Defense: -Generally, the one who begins a fight has no right to use self defense as a defense, but an aggressor can regain the right to use self defense by: a) Withdrawal – If an aggressor removes himself from the fight b) Sudden Escalation – If the victim of minor aggression begins to use deadly force and the aggressor reasonably fears for his life (victim making threats of future harm is not sufficient). • Defense of Others: -Only if the defendant believed that the victim had a legal right to use force in his own defense. -No special relationship is needed. -Retreat Rule: Defendant need no retreat unless he knows that he can secure complete safety of the victim. • Defense of Property: -Only non-deadly force may be used to defend one’s property in their possession from unlawful interference. -The use of force must reasonably appear imminent. -Deadly force is only allowed when there is another allowed use of force (ex. self defense of home invasion with a gun). • Crime Prevention: -Deadly force may only be used to prevent a crime if the crime is a serious felony involving risk to human life. -Non-deadly force is allowed if it is reasonably necessary to prevent a felony or serious breach of the peace. • Necessity: -Otherwise criminal conduct is justifiable if as a result of pressure from natural forces, the defendant reasonably believed that his conduct was necessary to avoid harm to self or society (ex. trespasser on private property to call the fire department to report rapidly spreading fire on the only available phone). -Defendant must reasonably believe that the conduct was necessary to avoid harm to society which is greater than the harm caused by his conduct. -Test is Objective-A good faith belief is enough. -Death is never justifiable to protect property. -Defendant must be without fault. II) Duress – Excusable Not Justifiable: Defendant contends that because of human threat, he is the victim (ex. bank robber draws a gun and asks for the money, if the teller hands over the money, they are not guilty of larceny). -Threat must be of death or serious bodily harm to the defendant or a family member. -Threat must be immediate, defendant cannot have time to do something about it. -Defendant must be free from guilt. -Note: Generally not recognized as a defense to murder, but if under duress to commit a felony, it may be a defense to felony murder. III) Other Defenses: • Mistake of Fact: -General Intent Crimes – Must be a reasonable mistake -Specific Intent Crimes – Any mistake, reasonable or unreasonable, is a defense (ex. taking someone’s book thinking it is yours – lack the state of mind to commit larceny, no intent to deprive). -Strict Liability Crimes – Mistake is no defense • Mistake of Law: -Not a defense unless the crime requires knowledge of some aspect of the law other than just the existence of the statute making it a crime. -It is a defense if ignorance negates a specific state of mind. -It is a defense if the statute is not reasonably available. -It is a defense if the defendant reasonably relied on an official interpretation of the law which was later declared invalid. -It is a defense if the defendant was given erroneous advice from one who is charged with administering the law. -Erroneous advice from an attorney is not a defense. • Entrapment: -2 Prong Test: The criminal design must have originated with law enforcement and the defendant must not have bee predisposed to commit the crime. -2 Tests for Predisposition: o Subjective Standard – Majority Rule: Was defendant predisposed to commit the crime? o Objective Standard – Minority Rule: Look at government’s inducement – Would a reasonable person be induced to commit the crime by the officer’s acts? • Consent: -Generally, the victim’s consent is not a defense unless it negates an element of the defense (ex. a defense to forcible rape is that the victim consented to intercourse). -Unavailable as a Defense for the Following Reasons: o If by youth, mental disease or defect, or intoxication, the victim is unable to make reasonable judgment. o If induced by force or duress. o If prevented by law defining offense. o If legally incompetent. o Assent by deception – dictated by circumstances. IV) Criminal Capacity Defenses: • Infancy: Common Law: -Under 7 – Child conclusively presumed incapable of knowing wrongfulness of their crime. -Age 7 to 14 – Rebuttable presumption of incapacity by clear proof that the defendant appreciated quality and nature of their acts (excludes rape). -Over 14 – Treated as adults. -Common Law Rules apply in most states subject to statutory age changes in some states. -Rules are not as important today, because most juveniles are treated differently under juvenile delinquency statutes which are set up for rehabilitation. -Juvenile court has exclusive jurisdiction over children under the age of 18. -Juvenile court can waive jurisdiction and authorize trial of a child as an adult in Criminal Court. • Intoxication: o Voluntary Intoxication: -Not a defense to a general intent crime, it is neither an excuse or justifiable. -Not a defense to crimes involving negligence, recklessness, or strict liability. -Can be a defense to specific intent crimes, provided the intoxication prevents the defendant from formulating the requisite intent (can bump 1st degree murder down to 2nd degree murder). o Involuntary Intoxication: Taking an intoxicating substance without knowing its nature or under duress or medical advice. -It is a defense to both general and specific intent crimes. -Most jurisdictions treat this the same as insanity, if because of intoxication, defendant meets whatever test the jurisdiction adopted for insanity. • Insanity: o 4 Tests: 1) M’Naghten Rule: -Requires that at the time of committing the at, defendant was operating under a mental illness, that caused a defect of reason, so as not to know the nature and quality of his act or not know what he was doing was wrong (cognitive impairment). -Loss of control is no defense. -Defendant with delusions must be determined whether, if the facts were as he believed, his actions would have been criminal. 2) Irresistible Impulse Test: -As a result of mental disease or defect, defendant lacked capacity to control his actions or conform his conduct to the law (volitional impairment). 3) Durham Rule: -An accused is no criminally responsible if his crime was the product of mental disease or defect and would not have been committed but for the condition (but for test). -Followed until 1972, replaced by the ALI Test. 4) ALI (American Law Institute) Test: -The prevailing trend. -Defendant may not be tried or sentenced if he cannot appreciate the wrongfulness of his conduct or conform his conduct to the requirements of the law. -Combined M’Naghten and Irresistible Impulse Test, allowing for either cognitive or volitional impairment. o Procedural Issues: -Presumption of Sanity -Burden is on defendants to come forward with at least a scintilla of evidence (evidence sufficient to raise a reasonable doubt as to sanity). -State may not proceed with criminal trial after the defendant has shown he is “more likely than not” incompetent. -Insanity Defense Reform Act: Defendant is committed to a mental hospital if found not guilty by reason of insanity. o Diminished Capacity: Whereas a result of a mental defect, the defendant did not have the state of mind required for a specific crime. -Only recognized in some jurisdictions as a defense. -Differs from insanity because it recognized different degrees and can be used to mitigate culpability and reduce the charge (murder to manslaughter). o Incompetency: -Test for competency – Is the defendant mentally aware of the nature of the charges against him and can he assist his attorney in his defense? -If not, he cannot be tried, convicted, or punished. -A finding of incompetence delays criminal proceedings until such time as defendant regains competence. V) Constitutional Defenses: • Void for Vagueness: -Reasonable people must necessarily guess as to the meaning of the law. -Fair Warning – Does it fail to give notice of the prohibited conduct? -Arbitrary and Discriminatory Enforcement – Does the statute encourage unfettered police enforcement? • Overbroad: -Gives the state too much power by possibly prohibiting conduct which is protected by the First Amendment (ex. it is overbroad to prohibit all public assembly which annoys people because we have a Constitutional right to free speech, assembly, and association). -Defendant can ask for declaratory relief – asking what the law is and what your rights are. • Violation of Fundamental Rights: -Right of privacy, travel, free speech, 1st Amendment rights, the right to vote, and the right to marry. • Ex Post Facto Law: -Prevents retroactive legislative crime creation or punishment. • Bill of Attainder: -Prevents punishment without a trial. VI) Model Penal Code Defenses: • Ignorance or Mistake of Fact or Law: -Must negate the required state of mind. -Reduces the grade and degree of offense, or it can be a complete defense to a specific intent defense. -Not available in negligent or reckless use of force. -Available if there is the belief that one’s conduct does not legally constitute an offense (ex. statute not known and one acts in reasonable reliance on official statement). -The standard of proof is Preponderance of Evidence. • Mental Disease or Defect: -Lack of substantial capacity either to appreciate the criminality of one’s conduct or to conform one’s conduct to the requirements of the law. -It is an affirmative defense requiring notice within 10 days of entering a not guilty plea. • Intoxication: -Only if not self-induced or pathological and at the time of conduct, the defendant lacked substantial capacity to appreciate the wrongfulness of his actions or to conform his conduct to the requirements of the law. -Available for specific intent crimes. • Duress: -Unavailable if the defendant recklessly or negligently placed themselves in the situation. • Consent: -Unavailable if by youth, mental disease or defect, or by intoxication, the victim is unable to make a reasonable judgment. -Unavailable if induced by force, duress, or deception. -Unavailable if prevented by law defining the offense. -Unavailable if the victim is legally incompetent. • Age: -Under 16. • Entrapment: -Available if the defendant proves by preponderance of the evidence that they acted in response to entrapment. -Unavailable when bodily injury is an element of the offense. • Justification: o Self Defense: -Cannot be raised for resisting arrest or the force used by another protecting their property. -Must be proportional. -Deadly Force: ~ Must believe that it is necessary to protect against death, serious bodily harm, kidnapping, or sexual intercourse. ~ Unavailable if defendant provokes the aggressor or if the defendant can retreat, though they are not obliged to retreat from their dwelling or place of work. o Defense of Another: -Apply the rules of Self Defense. o Protection of Property: Prevent or terminate unlawful entry or carrying away of property. -Force must be used immediately. -Allowed to use a protective device only if it is not known to cause substantial risk of death or serious bodily harm. -Limited in that one has to first request that the aggressor desist and in that resistance cannot be used against a lawful entry.