1 OUTLINE FOR CRIMINAL LAW I. Overview of Criminal Law A. Introduction -Legislatures have traditionally depended on the judiciary for some interpretation. -What is a crime? Anything the lawmakers say is a crime. -Crime involves more than private injury by causing social harm in that the injury involves a breach and violation of the public rights and duties due to the whole community in its social aggregate capacity. -What distinguishes criminal law from civil is the social condemnation and stigma that accompany the conviction. -A felony is that which is punishable by death or imprisonment in state prison. -A misdemeanor is that which the maximum punishment is monetary fine, local jail time or both. -Model Penal Code §222.1 Robbery – If in the course of committing a theft, a person inflicts serious bodily injury upon another or threatens another with or purposely puts him in fear of immediate serious bodily injury or commits or threatens immediately to commit any felony of the first or second degree. B. Guilt at Trial 1. Generally -The 6th amendment provides for the accused enjoying the right to a speedy and public trial. “Non-petty” are really the only ones that apply to the 6th Amendment. -Non-petty is defined as those which imprisonment is more than 6 months or if any additional statutory penalties are so severe that they clearly reflect a legislative determination that the offense in question is a ‘serious’ one. 2. Burden of Proof -The prosecutor must persuade beyond a reasonable doubt of every fact necessary to constitute the crime charged. 3. Jury Nullification -Defined: The jury can acquit a without stating its reason and no matter what its justification may have been, its verdict is nonreverrsible -The 2 sides of the debates: protects governmental oppression and provides accused with common sense judgment of the lay person vs. jurors understanding yet ignoring the law out of sympathy or dislike. • State v. Ragland o Instructions may refer to “If … then you must find guilty.” o The jury has the power to nullify, but it is not a right and the court does not allow in nearly all jurisdictions informing the jury of its power. 2 C. Appeal 1. Jury instructions 2. Constitutional Arguments/Statutory Argument 3. Sufficiency of the Evidence: Light most favorable to respondent 4. Improper admission of evidence: Related to elements of the crime D. Punishment 1. Who should be punished? • Queen v. Dudley and Stephens Deterrence of the general public and the individuals convicted/Define social standards. How do I support my argument and what can I use to support them. Retribution (revenge/vengeance) Rehabilitation (change ways and educate) Utilitarianism: deterrence and rehabilitation as combined in sociology (p. 14-21 of Understanding); decreasing future crime. Also theories of retributivism and denunciation in the working b. US v. Jackson Whether you use a theory of economics or critical legal studies view it does not matter as long as you can support it. The rationale for the life sentence here is general deterrence because it obvious that the individual was not specifically deterred or seemingly rehabilitative. Admits that general deterrence is the surest ground for punishment (pour encourager les autres) 2. Theories of Punishment a. Utilitarianism i. To change future behavior • General Deterrence: To deter others in society from doing it • Specific Deterrence: To deter individual from doing it again • Rehabilitation: To reform the individual b. Retribution: punishment for past wrongs • Just Desserts (Punishment = Harm Done) • Social Vindication for the wrong done 3. Punishment is the difference between criminal and civil suits. • Criminal: Society punishing • Civil: Individual action 4. What role should remorse play in the sentencing of an individual? -Is it truly for the offense or the fact he is caught? -How are you going to determine remorse? -Strong argument for throw the key away and more expensive to execute than to keep for life. -Remorse may play a role in certain crimes and not others. a. What factors should we consider in sentencing? o Some element of remorse. o Protection of society. o Severity of crime. o Recidivism (relapsing back into criminal behavior). o General deterrence. 3 o The victim (age, gender, profession) b. Federal Sentencing Guidelines 5(k)(1.1): Prosecutor has the discretion to go outside the guidelines and a judge can’t do it without prosecutor Who decides the line between civil and criminal suits? Prosecutor has the discretion (prosecutorial discretion). Also plays a factor in the sentencing -if he uses grand jury, indictment or if he does it himself Who decides federal and state suits? Depends on whether or not federal court has original jurisdiction (DEA, FBI, SEC, etc. can bring suit through Dept. of Justice) 5. Constitutionality Issues a. CRUEL AND UNUSUAL PUNISHMENT (8th AMENDMENT) ii. Cruel and unusual punishment defined as that which is: 1) Purposeless and needless; 2) Grossly out of proportion to the severity of the crime. iii. Cruel and Unusual Part of 8th amendment – Proportionality will only be reviewed in death case. 1) gravity of the offense; 2) penalties imposed within the same jurisdiction; 3) penalties imposed in other jurisdictions. iv. Basically: Encompasses cruel and unusual punishment and that punishment must be proportional to social harm b. DUE PROCESS (5th and 14th AMENDMENT) i. People must have notice of what crime they are being charged with ii. This relates to the fact that punishment would not be served through any of the theories c. ARTICLE I §§9, 10 i. No ex post facto law • No laws that make acts done before the law passed crimes • No laws that make acts subject to greater punishment after the fact • No laws that make acts a greater crime than at the time of commission • No laws that make proof easier after the crime committed ii. No bill of attainder • No legislation that declares that a person is guilty of a crime without trial or conviction d. STATUTORY VAGUENESS i. Start with premise that statute is constitutional ii. Statute may be overly broad, overly vague or too complex (as well as incorporating cruel and unusual punishment) 4 iii. Determining unconstitutionality of statutes 1. Language of the statute itself 2. Legislative intent (past statutes, history) 3. Case Law/Precedent (judges interpretation) 4. Public Policy (what the statute is trying to remedy) iv. RULE OF LENITY 1. If the statute is ambiguous but constitutional, interpret against the government/state strictly. 2. MPC DOES NOT RECOGNIZE RULE OF LENITY o Criminal statutes are to be construed according to their “fair import” o Ambiguities are to be resolved to further the general purpose of the MPC. II. ACTUS REUS A. Meaning of “Actus Reus” 1. VOLUNTARY ACT -Physical or external part of the crime (Conduct v. Social Harm) -Voluntary Act Volition must exist in the act. Possession is considered a voluntary act. Decided by the jury Involuntary Acts (MPC §2.01(2)) • Reflex, convulsion • Bodily movement during sleep or unconsciousness (unconscious movement) • Conduct during hypnosis (hypnotic induced conduct) • Bodily movement that is not the product of the effort or determination of the act, either unconscious or habitual (movement that is not willed) o Voluntarily induced unconscious state is not a complete defense o Automatism may be used as a defense to a crime but there is debate on the manner in which evidence could be presented (somnambulism, hypnotic states, fugues, metabolic disorders, epilepsy) -Omission to Act Statute dictates duty (passive conduct crimes) K dictates duty (MD-patient) Status relationship (parent-child) Voluntary assumption of care of the victim Creating the risk that victim is exposed to 2. SOCIAL HARM -Conduct society wishes to deter in order to protect a social interest -Crime as defined by legislature 5 II. MENS REA B. Meaning of “Mens Rea” -Guilty Mind /Intent (common law) -Common Law Culpability Approach: More general approach to the state of mind and intent (guilty mind, vicious will, immorality of motive, morally culpable state of mind). -Elemental Approach: is not guilty of a crime even if she has a culpable frame of mind if she lacks the mental state specified in the definition of the crime (PRKN – need not be specified in statute) Common Law – Culpability Approach MPC §2.02 – Elemental Approach Intent to Cause Harm (Specific/General) 1. Consciously wanted to cause the result 2. Knew conduct was virtually certain to cause the result Purposely 1. Consciously engaging in conduct 2. OR Aware of existence of attendant circumstances Knowledge of Attendant Circumstances 1. Aware of Fact 2. Correctly believes it exists 3. Suspects it exists but willfully blind Knowingly 1. Aware that conduct is culpable 2. OR Practically certain conduct will cause harm Recklessness 1. Should be aware of very substantial/unjustifiable risk 2. OR Conscious disregard of substantial/unjustifiable risk Recklessly (Substantial Disregard) 1. Conscious disregard of substantial/unjustifiable risk 2. AND Gross deviation from reasonable conduct Negligence 1. Should be aware of substantial/unjustifiable risk 2. Failed to live up to objective reasonable person Negligently 1. Should be aware of substantial/unjustifiable risk 2. AND Taking the risk is gross deviation from reasonable conduct 1. INTENT (Common Law) 1. Specific Intent i. A particular mental state is spelled out in the definition of the crime (with knowledge, with intent) 1. Intent to do some future act or achieve some further consequence or awareness of the attendant circumstances 2. OR the particular mental state defined in the statute 2. General Intent i. No mental state is spelled out in the definition of the crime. 1. Morally blameworthy or culpable 2. Everything that is not a specific intent crime 6 • Motive vs. Intent -Underlying reason for acting (good or bad) vs. deliberately acting to cause a particular result -Intent can be inferred from the circumstances -Intent can be presumed through intent to cause the natural & probable consequences of the act. 2. HOW ELSE CAN WE PROVE INTENT? -Transferred intent -Inference -Willful blindness a. Transferred Intent (Both Common Law and MPC) 1. The result was as desired except for the identity of the victim basically misaim 2. Punishment is the same as if the defendant had hit the intended victim. 3. EXCEPTIONS i. Mis-Identification (still got someone so there is no need to transfer the intent) ii. Hit intended person and another by accident (still causes harm to both so no need for transferring intent) iii. If statute precludes transferred intent iv. From one crime to another type of crime (shoot at dog and kill the person walking the dog) b. Inference from the circumstances 1. One is presumed to intend the natural and probable consequences of his acts. [Natural and Probable Consequences Doctrine] 2. You cannot instruct jury that they have to presume but you can instruct them that they may. c. Willful Blindness 1. Juries may say that someone was willfully blind and should be held liable for the intent 3. EXCEPTIONS TO MENS REA a. STRICT LIABILITY 1. No mens rea required by the statute 2. Generally disfavored by the court except statutory rape and felony murder 3. According to MPC has to be no jail time 4. Analysis a. No mens rea in the statute (end of analysis) b. Statute is not derived from common law c. Small penalty d. Little stigma to the crime e. Malem prohibitum crime (as opposed to malem in se) f. Reasonable standard to what is properly expected (speeding) g. Legislative policy could not be met if required mens rea 7 h. Public welfare type of offense (economic/environmental) 5. Policy Arguments a. Judicial economy, public safety, easier to prove and convict, strong deterrence, raise money b. Does not allow for mistake of fact, against fundamentals of judicial system, ignores attendant circumstances and excuses, no deterrence, no due process, no defense opportunity b. MISTAKE OF FACT Common Law MPC §2.04 S/L – No defense S/L – No defense Specific Intent crimes: 1. Defendant had good faith belief that act was legal 2. Whether belief was reasonable or unreasonable Negates a required element of the offense and the actor would not knowingly be guilty of another offense General Intent crimes: 1. Defendant had good faith belief that act was legal 2. and belief was reasonable -General Intent: Reasonable and good faith -Specific Intent: Only need good faith c. MISTAKE OF LAW Common Law MPC §2.04 S/L – No defense S/L – No defense Complex law Good faith belief act was legal Reasonable or unreasonable Negates required element of the offense Actor would not knowingly be guilty of another offense No publication of the law Passive law and no notice, i.e. felons registering Actor is reasonably unaware of unpublished or unavailable statute Reliance on incorrect official statement Acts in reasonable reliance on an erroneous statement of the law contained in statute, judicial opinion or similar source No public harm caused by the act -5th Amendment Defenses based on lack of due process -Rule of Lenity: favorable interpretation of vague statutes *** UNDER THE MPC -Do not distinguish between mistake of fact and mistake of law only remember DOES THE MISTAKE OF LAW OR FACT NEGATIVE THE MENS REA TERM? 8 III. CAUSATION -Required for punishment purposes A. Common Law 1. Must show both actual and proximate a. “But for” or “actual cause” – But for the defendant’s voluntary act the social harm would not have happened. b. Proximate Cause o Substantial Factor Test: Result was foreseeable o Direct cause: No intervening or superceding cause 2. Exceptions a. Accelerating Cause – Killing a dying person b. Concurrent Cause – Simultaneous acts (either one sufficient to cause the result) c. Obstructive Cause – Superseding act B. MPC §2.03 1. Purposely and knowingly – Result must be within contemplation of actor 2. Recklessly or negligently – Actor is aware or should be aware of the risk 3. Exceptions a. Transferred intent 4. CAUSATION UNDER §2.03 a. But for and satisfies any additional causal requirements imposed by statute or law defining C. Intervening/Superceding Causes 1. Diminimus – No liability where ’s act was not substantial compared to what happened later 2. Foreseeability – liable where independent act is foreseeable (no liability when grossly out of the ordinary). 3. Intended Consequences Doctrine – liable were intended outcome occurs indirectly 4. Dangerous Forces Come To Rest/Apparent Safety Doctrine – No liability where ’s act stops short and is not the final blow that kills. When a person reaches a position of safety, the original wrongdoer is no longer responsible for the ensuing harm. 5. Voluntary Human Intervention – No liability where there is a free, deliberate and informed act by another (breaks causal chain) 6. Omissions – Failure to act by the victim or another does not relieve ’s liability V. ATTENDANT CIRCUMSTANCES -Required facts surrounding the event (time of day, place, status, etc.) -Prevalent in specific intent crimes and S/L crimes VI. CONCURRENCE OF THE ELEMENTS -Actus Reus + Mens Rea + Causation + Attendant Circumstances = Crime -Defense -Prosecutor has to prove each element of the offense beyond a reasonable doubt -An affirmative defense may have to be proved by the defendant if not in the statute as having to be proved by the State 9 SPECIFIC OFFENSES VII. HOMICIDE Common Law -Killing of a human by another human -Must have a dead body (life starts at live birth and ends when no brain activity and no cardiopulmonary activity) MPC -Taking life of another human being (PKRN) -Born alive and no definition of death A. MURDER Common Law -Homicide -With malice aforethought Malice: intent to kill or inflict grievous bodily injury; extreme or reckless disregard for value of life Aforethought: pre-meditated, deliberated (CAN BE IN JUST A TWINKING OF AN EYE) MPC -Homicide -Purposely, knowingly or recklessly with extreme indifference -Felony-Murder considered spur from reckless 1. Degrees of Murder – Some states have degrees to identify different mens reas 2. Factors used to determine premeditation and deliberation (circumstantial evidence) a. Want of provocation on part of deceased b. Conduct and statements prior to the killing c. Threats and declarations of the defendant before and during d. Ill will or prior history between the parties e. Dealing of lethal blows after deceased rendered helpless f. Evidence of brutality 3. Implied Malice Theory – Malice may be implied through proof of the following: a. Defendant’s extreme indifference to the value of human life (showing that the conduct involved would cause death) b. Awareness of either the risks of the conduct or that the conduct is contrary to the law. B. VOLUNTARY MANSLAUGHTER Common Law -Intentional -Homicide -In the sudden heat of passion -Caused by adequate provocation -No opportunity to cool off -Causal connection between provocation, passion and fatal act 10 1. Provocation a. Reasonable man (objective test) b. Certain things are considered adequate provocation – serious battery, mutual combat, finding spouse adultery, informational words c. MERE WORDS ARE NOT ADEQUATE PROVOCATION MPC -Intentional -Homicide -Committed recklessly/Under extreme emotional disturbance 1. Extreme emotional disturbance a. MPC uses mixture of objective and subjective tests b. Basically, would a reasonable person do the same under extreme emotional distress? c. Acted under influence of extreme emotional disturbance with reasonable explanation or excuse for actor’s disturbance 2. Benefits from using objective test a. Uniform punishment b. Better general deterrence c. Retribution 3. Benefits from using subjective test a. Specific deterrence punishment b. Rehabilitation C. INVOLUNTARY MANSLAUGHTER Common Law -Homicide -Criminally negligent 1. Use the reasonable person standard under common law MPC -Homicide -Negligently 1. Must show that created a substantial and unjustifiable risk 2. Must show that he ought to have been aware of the risk E. UNINTENTIONAL HOMICIDE Common Law (ONLY) -Extreme indifference to the value of human life -Awareness that conduct may cause death OR that conduct is illegal F. MISDEMEANOR MANSLAUGHTER Common Law (ONLY) -Unintentional homicide -During commission of non-felonious unlawful act 11 G. FELONY MURDER 1. Doctrine: A felon is held strictly liable for all killings committed by him or his accomplice in the course of a felony. 2. Disfavored as a strict liability crime in many jurisdictions 3. Limitations used by various jurisdictions a. Underlying felony must be inherently dangerous i. Abstract (Is the crime inherently a dangerous one?) ii. Circumstances (Could it be inherently dangerous in this particular situation?) iii. Abstract + Causal Relation??? b. Independent Felony/Merger Limitation/Ireland Rule i. Ireland Rule: The felony murder rule does not apply to felonies that are an integral part of and included within the homicide (Natalie – read more on this) ii. However, if there is theft and intent of murder, we may still get felony murder rule. c. Causal Connection i. Victim actually killed in the furtherance of a felony ii. Death actually or constructively caused by the felon d. Co-Felon Rule (Natalie – read more on this) i. If you are a co-felon and someone else is charged with the killing of a co-felon, many states will not permit the use of the felony murder rule. e. Misdemeanor Manslaughter i. If there is non-felonious unlawful act, an unintentional homicide may fall under this category instead of felony murder rule. **** Don’t forget about using lesser included offenses, i.e. 1st degree murder/2nd degree murder/manslaughter/negligent homicide. VIII. ASSAULT -Common law is about equal to MPC -Wouldn’t exist without battery… A. Simple Assault (misdemeanor) 1. Attempts to cause or 2. P,K, or R causes or 3. N causes w/deadly weapon 4. Bodily injury to another B. Aggravated Assault (felony) – without negligence 1. Attempts to cause or 2. With extreme indifference for life, P, K, or R causes serious bodily injury to another or 3. P or K causes injury w/deadly weapon 12 IX. RAPE Common Law -Carnal knowledge -Forcibly -Against her will -Vaginal penetration required -Marital immunity rule MPC -Sexual intercourse -With female, not his wife -Compulsion to submit using force, threat of death or injury or pain to be inflicted on anyone OR -Impaired her power to appraise or control her conduct (drugs/intox) OR -Unconscious female OR -Under 10 years old 1. Mens Rea (probably infer purposely or knowingly) 2. Force (May be a big issue in the statute) a. Reasonable resistance b. Utmost resistance c. No resistance necessary 3. Fraud a. In the inducement? Is not rape b. In the factum? Is rape A. Statutory Rape – S/L in most jurisdictions B. Marital Rape Rule: C. Rape by Fraud D. Gender Neutral Statute? X. THEFT/LARCENY Common Law (Larceny) -Trespassory taking -Asportation -Personal Property of Another -With the intent to permanently deprive MPC (Theft) -Trespassory Taking -Asportation -Personal Property of Another -With the intent to steal (Could be inferred from circumstances or natural or probable consequences of the act) MPC (Consolidated Theft Offenses) 1. Embezzlement – breach of entrustment a. Lawful possession b. Fraudulently converted c. Breaching entrustment 13 2. Larceny (petty larceny < $500 < grand theft) -theft 3. False Pretenses/Deception – Trickery to secure title a. False Representation b. Existing fact c. Knowingly and designedly or intent to defraud 4. Extortion – Threaten harm 5. Receiving Stolen Property 6. Theft of services 7. Unauthorized Use of Automobile – Operates without consent XI. ROBBERY Common Law/MPC -Theft; of something of value; -With Force, intimidation, or intent to use force or appearance of force or fear of force XII. BURGLARY Common Law/MPC -Breaking and entering (entering a building not open to public) -In order to commit a crime therein -(At nighttime, inflicts or threatens to inflict injury or is armed increased degree of crime) INCHOATE OFFENSES – these offenses can be charged whether or not the crime has been committed XIII. ATTEMPT -Applies to specific intent crimes only -A PERSON WITH INTENT TO COMMIT AN OFFENSE AND -Mere preparation does not equal attempt A. The Tests WHAT REMAINS TO BE DONE 1. Last Act (rarely used) a. The last act completed prior to the crime (right before completion) 2. Physical Proximity Doctrine a. The overt act must be proximate to the completed crime or must amount to the commencement of the consummation b. Must go so far as to result or apparently result in the actual commission of the crime it was designed to effect if not hindered by extraneous circumstances 3. Dangerous Proximity a. Conduct is in dangerous proximity of success b. Greater the gravity and probability of the offense and the nearer the act to the crime the stronger the case c. 3 factors i. Nearness of danger ii. Greatness of harm iii. Degree of apprehension felt 4. Indispensable Element 14 a. No attempt unless the actor has obtained control of an indispensable feature of the criminal plan WHAT HAS ALREADY BEEN DONE 5. Probable Desistance a. If in the ordinary and natural course of events without interruption from an outside source, it will result in the crime intended b. No voluntary desistance 6. Abnormal Step Approach a. An attempt is a step toward crime which goes beyond the point where the normal citizen would think better of his conduct and desist. 7. Res Ipsa Loquitur a. An attempt is committed when the actor’s conduct manifests intent to commit the crime. 8. MPC Substantial Step Test a. Substantial step towards commission B. DEFENSES 1. Impossibility in Fact: Still GUILTY (not a defense), i.e. pickpocket but no wallet 2. Legal Impossibility: underlying act is not a crime 3. Abandonment: Must be a complete and voluntary abandonment 4. Show that the acts do not meet the 8 tests XIV. SOLICITATION o Some jurisdictions require actual communication of the request o MPC does not require actual communication of the request Common Law -Asking, enticing, inducing, inviting, commanding, requesting, hiring of another -To commit a crime MPC -Actor’s purpose is to promote or facilitate the commission of a substantive offense -With that purpose, he commands, encourages or requests another person to engage in conduct that would constitute the crime 1. Defenses a. Renunciation? 15 XV. CONSPIRACY o Specific intent crime A. ELEMENTS 1. Agreement (can be inferred through the circumstances) requires plurality a. To the essential plan b. Unilateral agreement with police officer in some jurisdictions (UNILATERAL v. BILATERAL THEORY) 2. Unlawful objective 3. Knowledge and Intent a. Intent to agree – can be inferred by the facts and circumstances b. Intent to accomplish the objective 4. Overt Act (only in some situations) B. NUMBER OF CONSPIRACIES 1. Chain a. A single agreement to commit more than 1 crime = 1 conspiracy b. A single comprehensive plan 2. Wheel a. Independent agreements to commit one crime = more than one conspiracy b. No common general plan that all are involved in. C. WHARTON’S RULE -AN AGREEMENT BY TWO PERSONS TO COMMIT A PARTICULAR CRIME CANNOT BE PROSECUTED AS A CONSPIRACY WHEN THE CRIME IS OF SUCH A NATURE AS TO NECESSARILY REQUIRE THE PARTICIPATION OF TWO PERSONS FOR ITS COMMISSION. -Exceptions 1. 3rd Party Rule: When one more than the number of people required/expressed are involved 2. When conspirators are not the people who commit the crime -MPC does not recognize this rule -Examples of offenses like this: adultery, bigamy, receiving a bribe, those mandated by statute D. PINKERTON’S RULE -EACH CONSPIRATOR IS FULLY LIABLE FOR ANY SUBSTANTIVE OFFENSE COMMITTED BY ANY CONSPIRATOR -Only if it was foreseeable (contemplated or desired) and in furtherance of the conspiracy E. DEFENSES -Did not have Actus Reus -Did not have the mens rea -Mere knowledge does not equal agreement -Mere presence is not enough -No intent to commit the act -Withdrawal: Voluntary, complete, communicated -Wharton’s Rule: Within number -Pinkerton’s Rule: Not foreseeable or not in furtherance 16 F. Prosecutorial Advantages -Joinder (guilt by association) -Venue (anywhere anything was done) -Evidence (hearsay allowed/more relevant evidence) -No completed act required (inchoate offense) -Federal System: No merger and can be prosecuted separately for conspiracy and the crime itself XVI. ACCOMPLICE LIABILITY/AIDING & ABETTING/ACCESSORY LIABILITY A. GENERALLY • Must have intent (2 types) to 1) aid the principal and 2) intent to commit the crime • Assistance, no matter how trivial or even unnecessary, is constructive liability • Victim is exempt from liability of conspiracy • Must have underlying crime in order to charge with aiding and abetting • Accomplice is not allowed the excuses of the principal • Mere encouragement is enough (Missouri); also includes exciting a criminal act by words, gestures, looks or signs; failing to assist victim • CAN YOU PROSECUTE ACCOMPLICE WHEN PLAINTIFF CANNOT BE PROSECUTED? (gets immunity) o Some jurisdictions – YES (still committed the crime of being accomplice) o Other jurisdictions – NO (no underlying crime to which to be an accomplice) • Defense: complete abandonment; communication to law enforcement A. TYPES 1. Principal in the First Degree a. Actually committed the crime by his own hand, inanimate agency or innocent human agent. 2. Principal in the Second Degree – “The Lookout” a. Aided, counseled, commanded or encouraged the criminal act and was present b. MERE PRESENCE IS NOT ENOUGH 3. Accessory before the fact a. Aided, counseled, commanded or encouraged the criminal act but was not present. [tools, combination to a safe] 4. Accessory after the fact a. Knows plaintiff is guilty and renders assistance to hinder detection, arrest, trial or punishment [person who hides evidence, etc. after the crime was committed] 5. Misdemeanor a. All parties to a misdemeanor, whatever their roles, are principals B. VICARIOUS LIABILITY 1. Furtherance, In Scope of Employment, Or under the control of 2. Collective Knowledge: Corporate criminal liability 17 3. Principle is liable for the crimes of his agent DEFENSES XVII. ENTRAPMENT (Natalie – read more on this) XVIII. SELF-DEFENSE A. ELEMENTS a. Threat has to be actual or apparent b. Threat was unlawful and immediate c. Imminent danger d. Response was necessary e. Proportionality f. Objectively reasonable under the circumstances (reasonable belief) B. Retreat Rule (Common Law) – Cannot use deadly force if you could safely retreat – both objective (reasonably) and subjective (honestly, believe) test a. Exceptions i. Alternative would be perilous or more dangerous ii. Castle Doctrine: Don’t have to retreat in own home (still can’t provoke) b. No duty to retreat today c. No need to retreat while in the midst of an attack or combat situation C. General a. Mere words do not constitute provocation b. Cannot be the aggressor (but if aggressor withdraws in good faith) c. Principles: Necessity, proportionality, reasonable belief d. Begins and ends with necessity e. QUESTION OF SUBJECTIVE VS. OBJECTIVE STANDARD (Goetz) f. MPC: i. Uses objective standard because of the word “believe”, but because of the word “reasonably” it is objective in that it looks to the circumstances of the individual being charged XVIX. DEFENSE OF OTHERS 1. CL: Intervener must have special relationship with the 3rd party who is threatened (limited by relationship) 2. Alter Ego Rule: If you intervene for someone who does not have the right to use deadly force 3. MPC: Reasonable belief standard 4. Immediate, with Necessity 5. Intervention is reasonably justifiable to defend 3rd party 6. Can only use same force allowed to defend himself in same situation 7. Steps into the shoes of the victim (parallels self-defense) XX. DEFENSE OF PROPERTY AND HABITATION 1. No more force than reasonably necessary – NEVER DEADLY FORCE (but a few jurisdictions may allow for defense of habitations) 2. Based on subjective belief of actor 3. Deadly force only when: i. Defending home and victim intends to commit a felony 18 ii. Victim has threatened deadly force iii. Victim is attempting to commit a felony iv. The force is immediately necessary to prevent the act 1. Not valid for real property 2. Spring Guns (OK under common law/Not OK under MPC) XXI. NECESSITY Common Law (when caused by force of nature) 1. Clear and imminent danger 2. Action would be effective in abating the harm 3. No adequate alternative 4. Harm done is less serious than harm prevented 5. Clear hands 6. Not prohibited by statutory law MPC 1. A defendant faced with clear and imminent danger 2. Reasonably expects that the action will be effective in abating danger 3. No legal alternative to abate 4. Legislature has not precluded the defense as part of the statute XXII. CIVIL DISOBEDIENCE (Natalie – read more on this) 1. Direct: breaking the protested law at that moment 2. Indirect: breaking a law or interfering with policy not in protest at that moment a. NO NECESSITY DEFENSE – Requisite immediacy; Actions would have abated the evil; no other legal alternatives XXIII. DURESS 1. Immediate threat of death or serious bodily injury 2. Well grounded fear that threat would be carried out 3. No reasonable opportunity to escape 4. Did not put himself in harms way a. NEVER DEFENSE TO MURDER (some states permit for reduction to manslaughter) XXIV. CULTURAL DEFENSES -Depend by jurisdiction -AKA mutilation of females OK in some cultures, etc. XXV. INTOXICATION A. Voluntary 1. Rarely an excuse 2. Has been allowed where it negates element of specific intent crime 3. Has been used to mitigate a crime B. Involuntary 1. Types of I.I. a. Coerced: under duress 19 b. Intoxication by innocent mistake: Tricked into taking (Full defense if it caused temporary insanity) c. Unexpected intoxication from ingestion of medically prescribed drug: Wrong drug at pharmacy d. Pathological intoxication: Grossly excessive intoxication given the amount to which actors does not believe he is susceptible (limited in some jurisdictions) C. Generally 1. Under MPC, intoxication can be a defense when it negates an element of the crime (PNRK) 2. Those that are not self-induced are affirmative defenses if it is comparable to insanity under the code. XXVI. INSANITY A. Incompetence 1. Incompetence deals with the time of trial whether defendant is competent to stand trial. 2. Sufficient ability to consult with attorney and rational and factual understanding of the proceedings 3. May be hospitalized until they become competent B. Insanity -Deals with the time of the offense and is a defense 1. M’Naghten Test: a. Defect of reason caused by disease of the mind (CAN TELL THE DIFFERENCE BETWEEN RIGHT AND WRONG?) b. Actor did not know the nature or quality of the act c. Actor knew what he was doing (RIGHT AND WRONG TEST) d. Too narrow (only cognitive); All of nothing; Limited to MD testimony 2. Irresistible Impulse Test: a. Disease of the mind/defect of reason (CAN DEFENDANT CONTROL HIS ACTIONS?) b. Premised on volitional aspect c. Too easy to claim and too hard to prove false d. A little better than M’Naghten but hard to define 3. Durham/Product Test: a. Disease of the mind b. (WAS THE ACT A PRODUCT OF ’s MENTAL DISEASE/DEFECT?) c. Becomes a battle of the MDs and act has to relate directly to the mental disease; Excluding those who can be deterred from responsibility. 4. ALI Test a. Mental defect or disease of the mind b. Substantial capacity c. Lacks ability to appreciate wrongfulness of conduct d. COMBINES M’NAGHTEN AND IRRESISTIBLE IMPULSE e. Burden of proof depends on jurisdiction and still very hard to prove but sometimes used to mitigate punishment C. Proof -Sane at time: Need to show normal everyday functions -Must show preponderance or clear and convincing evidence D. Verdicts a. Guilty 20 b. Not Guilty c. Not Guilty by Reason of Insanity (institutionalized usually) d. Guilty but mentally ill (by reason of insanity) XXVII. DIMINISHED CAPACITY A. Negating Mens Rea 1. Did the person have the capacity to form the mens rea to commit the crime? 2. Some states say that it is limited to murder 3. Some states say only to specific intent crimes 4. Some states say that it is never a defense to mens rea B. As A Defense 1. Claiming partial responsibility defense 2. For specific intent crime a. To negate element of the offense b. To mitigate the charge to a lower offense c. Some states just don’t allow 3. Only allowed in a few states (usually only to murder) 4. MPC: Reduces murder to manslaughter when acts under extreme emotional disturbance which is determined subjectively. a. Extreme mental or emotional disturbance b. As seen from actor’s shoes c. Under the circumstances as he believed them to be