Criminal Law
Two main classes of crimes: o crimes against a person o crimes against property Why Punish? Retribution- It tries to capture something that is instinctive. It can transfer vicariously from mother to child. o the person is getting his just deserts; getting what he deserves. o You are making the D pay on the behalf of the victim in the goal of order of society. o Crime is viewed in classic common law terms as a tear in the social fabric. The community is hurt. Punishment and retribution is just repairing the torn fabric. o That’s why the retribution is public. That’s why we have public trials, and records. This allows the community to partake in repairing society. o Retribution looks back to what the D did, to try to make him repay for that. (Retrospective) o From the view of retribution, you can punish involuntary action. Deterrence: sending a message to the rest of society that if that do the crime, they will have to pay. o Special deterrence: Prohibiting that person from committing a crime. o Special deterrence: imprisonment is a form of special deterrence. o Deterrence and rehabilitation look forward at what the D could do, tries to fix the D and make them function again. (Prospective)
o United States v. Bergman: Court favors general deterrence. Court feels that it is using the crime to deter people. It is not using the rabbi, but it wants to send a message to those committing white collar crime. Court combines general deterrence and retribution.
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You can deter involuntary conduct.
Rehabilitation: attempts to change the person in the sense of making the person socially viable again. o It is a social rehabilitation. “Getting the person back on his feet” o Another theory is that rehabilitation makes one confess their wrongs. The law always had religious services accompany their service in jail. This is moral rehabilitation. o Deterrence and rehabilitation look forward at what the D could do, tries to fix the D and make them function again. (Prospective) o You can’t rehabilitate someone from doing an involuntary action. Regina v. Dudley and Stephens: This case allows us to look at the three models of punishment. As a prosecution your favorite theory of punishment is retribution. Defense uses the claim of sympathy.
Elements of the crime
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Every crime has fundamental elements that need to be proved beyond a reasonable doubt. The act has to be voluntary. The act has to be performed with mens rea “bad state of mind”. The act has caused a prohibited harm.
1. ACTUS REAS The physical or external part of the crime Generally only applies to voluntary acts (see above in a few cases omissions are sufficient)--- coerced v physically unaware v incapable of prevention It can include actions and omissions. This must be accompanied by mens reas, which is the bad state of mind. These two are concurrent and have to happen at the same time. This concurrence has to cause the harm to the victim. If you don’t prove all these elements the case is over, even on appeal. The theory is that the law does not want to punish involuntary acts that are caused by nature (i.e. seizures)
Martin v. State: Court imposes the actus reas requirement. Volition is read into the statute automatically regardless if the statute explicitly says it.
If one puts himself in voluntary impairment, this does not preclude him from the volition element. Ex. If one allows someone to come in to their home and they get him drunk, it is a voluntary action if he knew that this was a consequence of inviting them into his home. This brings in the mens rea requirement. The hole in the law is between the rule that impairment by self does not dismiss actus reas and acts that are done by the third party on the D does dismiss the actus reas requirement. This is where characterization of the facts occur. As a prosec. you want to make it seem more like the first. Third of states say that addicts or alcoholics are not voluntarily acting. (actus reas) The other states don’t see this as an involuntary action.
Defenses to a Voluntary Act o Hypnotism is a defense to a voluntary act. o Acts done by a third party on the D dismisses the actus reas requirement. Omission of Act o Criminal law says no duty to act unless there is a legally defined duty. o There may be a moral obligation but it is not weighed. There has to be a reasonable duty to help others. You don’t have to engage in mortal peril to yourself. This standard is subjective. Exceptions are: Relationships o There are certain relationships where the law requires a duty to act. The law differs on this and judges it on a case by case basis. Husband/ wife Guardian – ward
o o Pope v. State: Criminal law prescribes a duty to parents for their children.
Statutes o Statutes can trigger a basic duty of care. People who have licenses have a duty to care for certain people. o Another duty by statute is if one is a police officer and witnesses a crime, they have a duty to help others. Some states say that even if one is an off duty officer, they still have a duty. When a firefighter is on duty they have to do what the job calls for, if you are not on duty you have to do what a reasonable person would do. A duty to act without mortal harm to themselves. o Some states have statutes that make omissions criminal. Ex. If you see an accident and don’t stop and the person dies from freezing rather than bleeding, you may be held culpable. Four states have this law. (NY) Contract The breach of a contractual duty will be sufficient to provide traction for a finding of actus reas. o If one fails to act on behalf of a Third Party will result in a finding of actus reas. Ex. Person is employed as a lifeguard but does not help others. Voluntary assumption of care o If one voluntarily assumes care of a person and fails to discharge care properly, precluding others from helping, that person may be culpable. o You will be liable for voluntarily assuming a care that someone else would have discharged but didn’t because you said you would take care of it and a person is injured, then the person will be held culpable. o One may be encouraged not to help because if they mess up, because they may be held liable. Creation of peril o There is a duty of rescue if one creates a situation of peril and does not help. It does not matter if it is by accident. o The omission is the failure to help the person, not the act of accidentally pushing the person in the water. o Even an accidental creation of the peril does not excuse you from responsibility. o You have to help them if you can. o One has to be aware of the created peril. o You take the victim as you find them. “thin skull rule” Euthanasia o Passive euthanasia- the with holding of vital metal services o Active euthanasia- is the facilitating of death, providing the means for death.
Ship captain- crew; this can be an employer- employee relationship parent- child
o Cruzan case: The person has a liberty right to the dignity and integrity of his body and they have the right to forego vital medical services and criminal law can not prosecute parties in this type of claim. o Glucksberg : There is no fundamental right to active euthanasia. The constitution does not allow you to hire some to facilitate your killing. o Barber: This was an affirmative act of pulling the plug and killing the patient. Doctor exercises reasonable care when it comes to caring for patients. The point is up to where it makes sense. 1. MENS REA General intent- guilty mind; moral blameworthiness Specific intent- an offense in which a mental state is spelled out in the definition of the crime There is a presumption that one intends the natural and probable consequences of his actions. The mens rea can be before or after the act but if it is not present when the voluntary act occurs, there is NO mens rea. As a prosecutor you have to prove the mens rea was formulated at the time of the actus reas. As a defense attorney, make the mens rea be out of concurrence. You would ask the D what their state of mind at the time of the crime. You would tell your client to plead the 5th, in order to protect them from incriminating themselves. Most of mens rea is determined through characterization of the facts. Common law gives 2 ways and model penal code gives you 4 ways. Common law categories go from innocent conduct to evil malicious conduct. o General intent (intent to act; objective standard) or o specific intent (intent to harm, subjective standard). MPC 2.02: o Purpose- conscious object is to engage in such conduct or cause such as result You purposely intended to do that particular harm to that particular person, in that particular way. You have to prove all the knowledge elements. He had a plan to harm the victim. This is high level mens rea. o Knowingly- awareness that it is practically certain that conduct will cause such a result. This is a lower standard. This is a soft version of intent to harm (CL). One knows that their actions will harm but don’t know every element. The D does not know everything for certain. o Recklessness- conscious disregard for a substantial and unjustifiable risk; awareness of the risk (subjective); a gross deviation from the standard of conduct that a law abiding person would observe in the actor’s situation (objective) Hard version of the intent to act (CL). One disregards the risk. The person intended to let the gas out but the person doesn’t know the consequences of his action. This is judged
by the RPP standard. One knows that some harm will occur. o Negligence- not subjectively aware of the risk; failure to perceive the risk is a gross deviation form the standard of care. The person intended to act. One would have to prove that the person acted unreasonably. The person is held to the RPP standard. This is a lower standard of intent to act (CL).
Regina v. Cunningham: Malice is the standard the statute sets for mens rea.
Transferred Intent Transferred intent is what you can impute to the D’s state of mind when he committed the act. Intent can only be transferred within a range of crimes. Ex. This case arson can not be transferred into rape. In criminal law the higher you are on the mens rea scale the more difficult it is to do a transferred intent theory. Always on a transferred intent theory, look at it from the perspective of the victim. See what state of mind you can impute on the D from this. Transferred intent can usually be held in recklessness cases.
Regina v. Faulkner
Drunkeness/ Intoxication You can never have a purposeful mens rea when you are drunk or high. This can only be a second level crime, so that this won’t encourage people to drink in order to escape guilt. Court’s make no distinction between involuntary and voluntary intoxication.
o Regina v. Kingston
DEFENSES
Mistake of Fact Defense General Rule D has to prove the mistake is reasonable, honest and that his conduct would have been legal if the facts were as he supposed them to be. The reasonable element is based on an objective RPP standard. The honest element is based on a subjective standard (the actual person). Regina v. Prince o Statute says that it is illegal to take an unmarried girl under the age of 16 out of the possession of her father. o The statute is silent on the mens rea requirement. o The Court says that one has to do the action knowingly. He imputes this to all of the elements of the statute. o From the facts, this was an honest mistake. o Normally, we read mens rea into “naked” statutes. Courts normally use a knowing standard or a low recklessness standard. This is almost always the case.
o The exceptions include sexual offenses, the law will make naked statutes into strict liability statutes. Exceptions to Mistake of Fact o The law will imply strict liability in four different cases, in which mistake of fact is no defense: (1) unintentional or intentional abandonment of a pregnant wife. (White case 227). This is still the law. (2) The law will impose strict liability in cases of incest usually within 2 generations. The law will make it criminal on both sides and mistake is no defense. (3) Bigamy or polygamy. Every state has a firm criminal law against this. This carries a minimum sentence of 3 years and in some jurisdictions, it is punishable up to 20 years. The act is wrong in itself. In order to protect yourself, get an ex parte divorce. You should have the law be the determinative factor. (4) Statutory Rape. This is not rape nor strict liability case. This deals with sexual acts with a minor, almost always a young woman of tender years. Tender years is set by statute, can be as high as 17 or as low as 12. This includes any illicit touching of her body which is done for the sake of any one’s titillation. Actus reas can be anything from touching the breast, vagina or butt to outright rape. Law does not care about mistake of fact. The harm is illicit touching. The more serious the harm, the more serious statutory rape you will be charged. If you participate in the act, you are guilty of statutory rape. Almost always, only the man is charged, because he is supposed to be the adult in the situation. o Exceptions People v. Olsen (230) The Court says the statute’s purpose is to protect girls of tender age from sexual offenses. One is guilty even if mens rea is not present. The actus reas is the only requirement. Until a certain age, the kid doesn’t have the maturity to protect themselves.- this is the purpose of the statute. Infants: 1-14, Juveniles: 14-18; Adults 18+ Mistake of Law General Rule and Policy o D has to prove the mistake is reasonable, honest and that his conduct would have been legal if the facts were as he supposed them to be. o Court will normally imply a recklessness knowledge standard. o Court will impute common mens rea into every statute. o This is generally not a successful defense. o Incentive to learn the law.
o If this were so, the prosecutors would have a difficult time proving the D knew the law, he violated. People v. Marrero o Peace officer is defined in Criminal Procedural Law §§1.20 and 2.10. It is not defined within the statute. o The Court disregards the argument that the definition was taken from a different source than the statute. o Court says that it is their job to interpret the law and the D misread the law. Exceptions o Subsequent courts delivering differing opinions. The D would not be guilty of committing the crime because this would ex post facto. o If his reliance of the law was sanctioned, he is exonerated. (i.e. if he got authorization from a higher position) o Another exception is when there is a contradiction in the law. If there is a contradiction in the same body of law, he is able to use the defense. It has to be in the same body of law. Note a. 256- the key element is “without authority of law”. This presupposed that you know what the law is. In order to prove kidnapping, one has to prove that one knew the law before violating it. The D committed the crime “knowingly”. Courts are very strict in interpreting the law.
POSSESSION OFFENSES o Actus reas: Possession of illegal goods Anything can be deemed illegal Usually cases involve: Stolen goods Counterfeit goods: money, documents Illegal firearms, explosives Illegal drugs This can deal with any substance the government deems illegal. The Actus reas is to have this is by omission or action o Mens rea: is fact specific and it requires soft knowledge of illegality and the possession of the illegal good. If you have the opportunity to ask and find out, you must. If you don’t you are engaging in “willful blindness”. This is when one looks the other way. When you are in the subjective world of soft knowledge, you still take into consideration the particular defendant. This uses a hard RPP standard. Knowledge requires that the D knew the facts and he still acted. Willful blindness- one may not know all the facts but has some knowledge that illegal activity is taken place. U.S. v. Jewell Knowledge of possession can be constructive knowledge. o Possession is if you have it in your hand and in a public space within your wing span, you have possession.
When in a public space you have to take into consideration the proximity of the person and the object. When you are in your home, as long as the object is in your house, you have possession. Possession within your space or private space is determined by reasonableness (i.e. corner of 40 acre ranch, not possession). If you have exclusive claim to a certain area, there is possession (i.e. bank deposit box). Multiple users of a space or not putting the object there do not relieve you of possession.
STRICT LIABILITY o Regulatory Offenses Impose small fines on citizens Policy: These regulations are enforced to keep social order. o Staples v. U.S. Congress did not include mens rea in the statute. Thomas said that it could not be a regulatory offense because a mens rea is not required. Because Congress attached a harsh penalty, the mens rea has to be knowledge. o You can’t have a felony punishment (felony criminal record) for a regulatory offense. o Due Process: you can not create a criminal record on the violation of a regulatory offense. Due Process Rights: Prove of the prima facie o If no mens rea is required: strict liability case. o Every regulation has a coating of criminal law and if you ignore the regulations, there will be criminal sanctions. o Mens Rea is not required in regulatory offenses. VICARIOUS LIABILITY o Criminal law almost always is interested in punishing the one who committed the actual crime. o Exceptions Employer- employee relations The perpetrator has the mens rea and actus rea but the court can still go after the employer. State v. Cuminga The statute’s purpose is to protect minors from underage drinking. This is a regulatory offense. o Vicarious liability in a regulatory offense can not carry a hefty fine or subject them to a felony or criminal record. CAUSATION o Cause in Fact (“but for” test) Look at the harm to the victim and look at the actus reas and mens reas. Ask yourself if you take away the conduct, does the harm still occur. If it does, no cause in fact. If it does not, the cause in fact is proved. Actual cause
As a defense attorney, causation is your friend. People v. Arzon o The question is is Arzon the cause in fact of the death of the firefighter. o If you are arguing that Arzon was not the cause in fact, one would argue that the death of the firefighter was caused by the second floor fire, which was not caused by Arzon. o If you argue that Arzon is the cause in fact of Celic’s death, one would argue that but for Arzon’s fire, Celic would not have been in the building. Arzon’s action is what triggered the chain of the events that caused Celic’s death. o The D’s conduct does not have to be the sole and exclusive cause of death as long as it is substantially related to the death. o The law said that is typically always one person against the state but if there are more people that caused the harm, all can be brought to court. o On concurrent causation, each defendant will be tried individually. There is no joint and several liability. o When you are considering the cause in law, you focus on the end result. Prosecutors focus on the harm, defense attorneys focus on the nature of the harm. Cause in Law (proximate cause) The test is reasonable foreseeability. You ask the jury what are the reasonable foreseeable consequences on the D’s actions. This is an objective inquiry. What would a reasonable person foreseen. People v. Acosta One could argue that Acosta was the proximate cause because it was foreseeable that police will follow and death may occur. One could argue against proximate cause by saying that Acosta was driving on the street and it was not foreseeable that helicopters would collide.
INTERVENING CAUSATION o General Rule: If the intervening causation is reasonably foreseeable if the chain of causation does not break, prima facie case goes on. If it is broken the prima facie case dies. o Natural/ Physical Conditions You do not take into consideration the actual person’s disabilities. This is a mens reas inquiry. Causation is objective reasoning. Don’t subjectivize the causation inquiry. Even if the D did foresee the consequences, if a reasonable person would not have foreseen there is no causation. You have to reasonably foresee that the victim has the disease. This is the rule and the court will almost always follow this rule. This is like the thin skull rule in torts.
The condition has to be reasonably foreseen. The condition is the intervening cause. Prosecutor will argue that the condition was foreseeable and the defense will argue that the condition was an unforeseen intervening cause. o Third party conduct Rule of Thumb: Think about the third party’s conduct, whether they are a defendant or not and try to characterize that person’s mens rea. When a third party does something recklessly or negligently that is foreseeable. Purposeful and knowingly mens rea is not foreseeable. Third party does not have to be prosecuted. Court still asks if the appearance of the third party is foreseeable in the first place. o Victim’s Own Conduct Rule of Thumb: Look to the victim and ask what was their mens rea. If it is recklessly and negligently it is foreseeable. Knowing and purposeful conduct is unforeseen. Chain of causation is not broken when the victim acts recklessly or negligently. Knowing and purposeful conduct breaks the chain. You take into consideration if a reasonable person can reasonably foresee that the person has special knowledge, i.e. doctor. This is not a subjective inquiry. It is objective. Commonwealth v. Root Court determines that the victim knowingly and purposefully acted. Prosecution would focus the mens rea later in the race. They will say that the victim acted recklessly when behind the D, which is foreseeable. The victim did not knowingly swerve to kill himself. Commonwealth v. Atencia Issue: Whether the victim’s actions breaks the chain of causation between Atencio’s actus rea and mens rea and death. Prosecution will say that Atencio’s actus reas was passing the gun and the victim’s conduct is reckless. The prosecution would say that when Atencio handed him the gun, it was foreseeable that the victim would shoot himself. Defense: The victim knew the risks and knowingly acted, which resulted in his death. Also, defense would say that the victim was acting independently and Atencio’s actus reas was not a continuation of the game. Courts say that the acts of the parties were not separate at all. Death is reasonably foreseeable when the parties began playing the game. All parties bear the liability when they partake in dangerous activities. In this case, they all bear the same probability of dying.
Most courts don’t distinguish Root type cases and Atencio type of cases. Any games involving a lethal weapon, drag racing, dangerous sex, or drugs courts will say that liability will be foreseeable. These cases follow Atencio. This theory creates a dangerous path because the exceptions keep growing. This case creates the exception : when the conduct can be characterized as an enterprise all parties can be held liable, even if it can be shown that the victim was purposefully acting. This rule waives the victim’s purposeful mens rea or makes it reasonably foreseeable for the defendants. Prosecution makes it look like it is co-current causation and defense attorney will make it look like an intervening cause.
SUICIDE o Old Rule: Minority of states feel that if the victim kills himself, this breaks the causation chain and the D can’t be tried for homicide. Campbell- chain broken Intervening causation is the victim shooting himself. D not guilty because victim killed himself. This was the common law rule and about a third of the states still follow it. o About a third of states say suicide breaks the chain unless the victim hastens their death. o hasten inevitable death A quarter of states say that if the victim does this, the D is guilty of murder. Jury has to make the determination that the victim thought he or she was going to die. If this is determined, D found guilty of homicide. The victim was going to die anyway but just killed themselves before the D did. o Victim’s mind overborne by the D Victim was deprived of making a decision to kill herself willful. The victim is incapable of reason. Victim does not have mental control due to the D’s conduct. Stephenson The D is liable if the victim kills themselves. If it is long standing abuse, most courts will find the D guilty even if the victim kills themselves. Physical harm is not required. This normally takes place is kidnapping cases. The jury has to determine if a reasonable person would have her mind overcome. Assumption is that both mental and physical harm work hand in hand but mental alone, today, may be enough. o Victim has to die within the statute of limits, which is a year and a day. After this date, the D can not be charged with homicide.
Assisted suicide o People v. Kevorkian Both are voluntary participants. They are not capable of killing themselves. Court did not go after Kevorkian for homicide because Campbell held that suicide breaks the chain. The case was remanded and Kevorkian walked in lower court. MI Statute said the act of active participation in facilitating suicide is a crime. “active participation” is the key. The Gluxenburg S.C. case says it is up to the state to criminalize assisted suicide and MI did it. HOMICIDES- harm against person Definition o Most jurisdictions have two varying degrees between murder and manslaughter o The unlawful killing of another living person. o There are some types of lawful killing, i.e. self defense, defense of others. o Killing- When does the death have to occur? Most jurisdiction say it has to occur within a year and a day of the actus reas. This is an old common law rule. Ten jurisdictions say 3 years and a day. Two jurisdictions say within reasonable time. This affects when one “pulls the plug” o When is the person dead? The old rule is the breathing rule to determine if they are dead. Some jurisdiction determine death when the person is brain dead. Jurisdictions are split between the breathing rule and the brain rule. o The person has to be living. When is it a living person? Common law rule is when the being is quickened. This is after the first trimester of pregnancy. The law says this is a person. o You can’t be charged with homicide, if you shoot a dead person. It can’t even be attempt because it was factually impossible because the person was dead. o As long as the person is still alive, there can be homicide. (ex. If the person takes poison and was going to die, then the person shot him) Homicide Degrees Murder 1st degree (possible life imprisonment) v. 2nd degree ( 7-8 years) o General Distinctions California Penal Code- The mens rea is knowing. The first five are first degree killings: by destructive device or explosive, knowing use of ammunition designed primarily to penetrate metal or armor, poison, lying in wait, torture Court focuses on certain types of actions (actus reas) that can be held as murder in the 1st degree. The legislation only implies a base line mens rea
and does not hold it to the highest standard of mens rea. There is an actus reas focus. Or by any other kind of willful, deliberate, and premeditated killing.Legislation is focused on mens rea. It is a purposeful mens rea. Court does not care about the instrument used. Courts have read this as a disjunctive “or”. The first five acts are separate from this part. Which is committed in the preparation or attempt to perpetuate arson, rape, robbery, burglary, mayhem, kidnapping… or any other acts punishable under Section… If a death occurs as a result of one committing one of these crimes, he will still be held as murder in the 1st degree. This is a built in transferred intent. The prosecution does not have to prove the person tried to kill the victim.
Mens Rea of Homicide Carroll- broad The salient issue is what was in his head at the time he killed his wife. Court determined that the 5 minutes was an adequate amount of time to form premeditation to kill his wife. In this type of jurisdiction, you have a premeditated, deliberate, and willful murder. These are synonyms. This can be inferred from words, conduct, or the intentional use of a deadly weapon of the D. You can infer from the act of murder. The most important tool in this type of jurisdiction as a defense attorney is to keep your client QUIET!! Also fight every piece of evidence. Thirdly, play actus reas and causation games to defend your client. More than half of jurisdictions are “Carroll” type jurisdictions. (prosecution friendly) However, most of the cases or plea bargained down to 2nd degree murder. Juries are told to make any reasonable inferences from all testimony 2nd Degree murder is a knowing killing. 1st degree is a murder with malice aforethought. A killing with premeditation, deliberation, and willfulness. The question is was there prior reflection before the murder. As long as there is moment between the final act and the murder, premeditation can be read into this time period. Second way to infer willful murder (1st degree) is to look at the words, actions of the D to infer intent and premeditation. Guthrie- narrow NOTE 1 page 403. These are proof to premeditation: In order to prove murder look at (1) the relationship of with the victim, (2) planning activity, and (3) evidence regarding the nature and manner of killing.
Look for premeditation and deliberation evidenced in a plan. The relationship of parties is probative of a motive. Evidence that the D took special care to clean up, show premeditation. The more planning, more motive, and more evidence of a premeditated murder, the more likely you will get a first degree murder instruction. If not enough, planning, motive, or evidence, the more likely a 2nd degree murder instruction. First degree murder is reserved for cold blooded assassinations in Guthrie/Anderson jurisdictions. Prosecutors have a harder time getting 1st degree murder charge. Defense attorneys do well. 2nd Degree- there is still a knowing killing, but there is not enough evidence for 1st degree murder. Malone: gross recklessness This is a second degree murder case. Dangerous and reckless game. His ill-knowledge of the gun makes his conduct all the more reckless. In order to have 2nd degree murder you have to have recklessness and wanton disregard of human life. Wanton disregard is evidenced by the instrumentality chosen. The more dangerous the instrument, less we are interested in D’s intent. Held liable because of inherent dangerousness of the thing you have.
ACTUS REAS OF HOMICIDE . o The following are alternative ways that 2nd degree murder can be 1st degree murder. o Nature of Victim If you kill someone excessively important or helpless in society, you will be held to 1st degree murder. (i.e. police officers, children, elected officials) Look at state statute to determine the child’s age. o Instrumentality used The law will look at the weapon that you chose to do the harm. To use those “weapons” is to engage in premeditation, willful and deliberate murder. Look at statute to determine the instrumentalities that impute 1st Degree murder. States can pick the instruments. o Felony murder Felony murder is not a special kind of murder.
Created by common law then by statute as a built in transferred intent theory. Felony murder is an exception to prima facie case of murder. All you need to prove is that the D intentionally committed the felony and a death occurred while the D was committing the felony. This is enough to get a conviction of felony murder. All you have to prove is the felony. Felony murder is reserved to situations to which the D intended to commit a felony that is dangerous to life but did not intend to commit grievous bodily harm and a death occurs. (burglary, rape, robbery, kidnapping) Local statutes will codify what actions will count as a felony murder in the first and second degree. Felony murder has three requirements: Inherently dangerous to life (rape, arson, robbery) Murder committed in the commission of felony The felony can not be too close to the murder. Independence requirement. Inherent danger to life (Prosecutor has B.O.P.) R. v. Serne o Arson is an inherently dangerous behavior that could result in death. o Homicide theory would not work because the intent all points to insurance fraud. o Court says felony murder can be upheld. P v. Phillips o The felony here is fraud but it is not inherently dangerous. o You can not have a felony murder, if there is no felony. o Prosecutor has to show the felony is inherently dangerous to life (any threat or violation of the body) if the felony is not on the felony murder list. o Some states have separated felony murder into two separate categories. o Look at the nature of the crime, not the consequences of the crime. In the commission of The killing has to be apart of the scene in the crime. The killing has to be close enough in time and cause. The killing has to occur in the commission of a felony. If the act of killing is somewhat remote from the felony, some judges will say it is enough for felony murder. If the victim kills himself two weeks after the felony, it probably won’t be felony murder because it is too remote. Independence Regina v. Serne o The problem in this case as to why felony murder can not work is that the arson was the method that he used to kill the boy.
o They should have went for a homicide case instead of felony murder. People v. Smith o The parents were charged with felony child abuse. o The beating was inherently dangerous and the child died in the commission of the felony child abuse. o The problem is that the child abuse may not be independent enough. o It would be pretty hard to get a 1st degree murder in a Carroll type jurisdiction. This almost most definitely would not pass in an Anderson jurisdiction. o This would be an easy 2nd degree murder. (Malone) o The problem is that you are depriving the factfinder of making an inquiry. o If you can show by circumstantial evidence the D intended to cause grievous body harm on the victim and a death occurred, the actus reas of the battery/assault is merged into the actus reas and mens reas of the murder itself. o In a commission of a felony , death is foreseeable. This is a causation argument.
MANSLAUGHTER o Intro Act of Murder Common law: voluntary and involuntary manslaughter like 1st and 2nd degree murder Voluntary manslaughter is between 1st degree murder and insanity murders. The D has his reason partially impaired. Involuntary manslaughter is between 2nd degree murder and an accident. Every jurisdiction puts the B.O.P. on the defense attorney to get voluntary manslaughter instead of 1st degree murder. A minority of jurisdiction requires the defense attorney to go after involuntary manslaughter instead of 2nd degree murder. o Voluntary Manslaughter There is a conflict between common law and MPC formulations. This is a partial affirmative defense. Jurisdictions are about half and half. Common law: Maher The jury has to find partially impaired reason. Two requirements for voluntary manslaughter: o Adequate external provocation o cooling time. Common law says there are certain situations in which external provocation could occur: o Adulterous relationships o Most jurisdictions say the D has to catch spouse in the act itself, not circumstantial evidence. o Pictures and graphic descriptions are not enough
o Battery or a dangerous assault against you or a third party. o This may be self defense, if the person did not overreact. If overreaction occurred, it will be a voluntary manslaughter. The circumstances did not warrant the actions you took against the assailant. o Old law would day it has to be a privity relationship. Today, it is anyone who you are protecting. This is to encourage intervention on behalf of bystanders. o Offensive touching of the body o This is in cases of rape, kidnapping. Law says mere words do not constitute an adequate external provocation. Words that evolve into an assault would make it involuntary manslaughter. Girouard o The D is trying to get the conviction lowered to manslaughter by trying to prove that he was provoked by her words. o The rare exceptions in which words are enough are situations in which the words are spoken in combination with pictures and videos. Cooling time The assumption is that this is not a reflex but an instinctual reaction. The D acts very quickly without pause. The D did not deliberate. The time is normally 5-10 minutes.(CL) If it takes longer, voluntary manslaughter will not be an option. If the person has time to cool off it will become a 1st or 2nd degree murder. o St. v. Gounagias o Victim of forced sodomy killed his perpetrator. o Court said cooling time was not waived in this instance just because he was constantly being taunted. Common Law o Model Penal Code: Cassasa Only about 4 states have a full blown MPC approach. However under MPC, the standard is whether there was an extreme emotional disturbance. Did something reasonably provoke him. Is there some good reason for him to be reasonably disturbed? Then the next test is whether in the totality of the circumstances the finder of fact could understand how a person might have his reason overcome. Is the response he made with the extreme emotional disturbance reasonable? (the second inquiry)
Involuntary Manslaughter o This is not an actus reas inquiry. It the residual category between 2nd degree murder and an accident. It is more than mere negligence but less than gross recklessness. o The more serious the harm or the more grace the improbable harm, just doing the dangerous thing is enough to constitute invol. manslaughter. o Commonwealth v. Wolensky The case does not turn on the probability but rather on the degree of harm (370 people died). Although there is no mens rea present if the harm is so egregious, the mens rea will be transferred to him. Two ways to analyzed: If you knowingly maintain a dangerous condition imputes gross recklessness Just maintaining a dangerous condition, even unknowingly, will still get you to gross recklessness. You have to get over the gross negligence hump in order to get involuntary manslaughter. Contributory negligence of victim is immaterial. This goes to causation and is something you have to reasonably foresee. This could have been tried as a Malone type 2nd degree case because it was a wanton disregard for human life. o Vehicular homicide Type of voluntary manslaughter and the instrument in which you chose was a car. This is a gross recklessness crime. Recklessness offenses are those in which the person was warned of the danger their car had (i.e. bad brakes). RAPE o Intro There is a paradox here because when done properly it is good and when done wrong it is horrible. Legislators have left all equity balancing until the sentencing stage. Differences in rape is left up to the jury and the judge. Majority of jurisdiction stick to common law definition of rape. Few jurisdictions are changing from the common law definition and have created their own definition. o Definition Carnal Knowledge Common Law Carnal knowledge of a woman by a man, not her husband, procured by force or threat of force, against her will, and without her consent. This is penetration of the vagina by the penis. These are not rape:
o Penetration with any other instrument other than penis. (sexual battery) o Penetration of the anus is a form of buggery o Any contact between genitalia and the mouth is sodomy. o Any touching of a woman victim without penetration is sexual battery. o Any touching anywhere by the male organ is also sexual battery. Majority jurisdictions that follow common law on rape, do not get specific about the offenses but they group them together so that a party can be charged with rape even if he does not penetrate the vagina with his penis. Vaginal intercourse is not mandatory. Classically it was required. Classically rape was on a woman beyond child years. If it is a girl of tender years or younger this is statutory rape. V= woman; D= Man V is a woman. D is a male that is mature enough to perform. The issue is if he is capable of the act and if he is, he can be held for rape. As soon as he gets an erection, he can be a D. Sex between two males or two females is not rape under common law. It is sodomy or buggery. Women who force males to have sex are not instances of rape. Those are batteries, sodomy Marital Exception o The phrase “not her husband” is the marital rape exception. o Under common law, it was deemed that marriage was an automatic consent to sex on demand with the husband. Classically husbands could not rape their wives, there was consent within the marriage. o Most jurisdictions have abandoned this rule. Force/threat/resistance If the last three are separate events, you have to prove each one. This is a lot harder to prosecute these cases. Under common law these were three elements and if one is missing the case goes down. The growing trend is that the force is just evidence that goes to show if the V had sex without her consent and against her will. When there are signs on the body of the victim this is easy to show force. When there are no signs of force the next step is to find a sign of threat by the D to the V. You look at the conduct of the D. If there is physical evidence of resistance (found on D., scratches), this is easy to prove. This will show force. If no evidence of resistance, one might assume that if the V did resist she would be herself in more danger if she fought. This leaves juries to ask what would the Reasonable Rape Person do. If
there is no resistance, what do you do… penalize the victim for not resisting. no. Trend now is to collapse the threat of force and against her will into one. The real issue is was there volition on the part of the victim. Against her will This looks into the actus reas of the victim. Was the act voluntary? Some prosecutors argue that what is woman to do if she is drunk and she is raped. Although she did voluntarily get drunk, she did not ask for the sex. Extrinsic Force v. Intrinsic Force o Extrinsic Force: The law is interested in imminent physical force on the body of the victim. It does not have to be mortal harm, it is just unwelcomed touching. It can be a threat of force to a third party as well as the victim. o Today evidence can be on film or telephone. This is sufficient to constitute extrinsic evidence. o Future threat is not good enough, it has to be actual threat. o Intrinsic Force: The issue of force is whether the act was voluntary. This allows rape to found where there is no extrinsic force, e.g. rape while the victim is sleep or woman at Dr.’s office. o This is becoming the norm. This is sufficient. The issue is, is it voluntary. Relational/Circumstantial o Force can be found where there is a power imbalance in the relationship. o Law is beginning to recognize this imbalance and that sex in this relationship may be involuntary if the victim alleges the same. o The idea is that there is no capacity to consent to sex. o This is a trend and is not the majority. Manipulative/ Blackmail o It is not a crime of rape. Manipulative force is not a crime. o Blackmail is not rape. (Future threat of rape) o The worry is that this would make it too easy to claim rape. W/o her consent Evidence o This may be the same as the evidence of involuntariness, i.e. physical force, cuts or scratches. o Resistance evidence is also useful. The stronger the resistance evidence, the stronger the non consent evidence. Presumption: Yes or No? o You begin with the presumption of consent or non consent.
o Classic definition was that the woman had to present evidence of non-consent. o Classically when evidence shows the woman engaged the sexual contact, the stronger the evidence of non consent has to be. o Today it is the man’s burden to procure consent. The rule is “You have to ask for permission for every step of the way”. o Most jurisdictions say you don’t have to ask every step pf the way. You need to ask very clearly and verbally may we have sex before the act begins. o However, consent can be revoked at any moment and if the man does not, he is guilty of rape. You are required to give a no when you consent, except when you are drunk. You can never have sex with someone who is unconscious. This is rape. o The difficult question is what to do when you have a nonverbal no. Body actions and movements. Also when does the yes expire? These are jury questions. o If there is no verbalizing of consent, you have to get a yes before intercourse. Marital Rape Traditionally men could not be charged for raping their wives. It was thought that sex was innate in marriage. “Coverture” It was thought to get married was an automatic consent to sex. The second reason for this rule was that the law does not like invading the home. Absent a crime, the law is not interested in a man’s home. 3rd Reason: The law did not like wives testifying against husbands. In a lot of jurisdiction wives were not allowed to testify against their husbands except in case of divorce and battery. These traditional rationales are now gone. Reforms o Husband and wife are thought to be equal parties and the wife does not consent to sex by marriage. No coverture. o A man’s house is not his castle, especially when there is a crime. Rape is a crime. o Spouses can testify against each other. There is no presumptive challenge to testimony just because the witnesses are husband and wife. o 21 states still have the marital rape exception. o This is an affirmative defense of the man, to claim marriage. If he can prove marriage he walks. o The law is getting more stringent in the marital rape exception. o There has to be registered marriage, not engagement.
o The two have to be living together. o The two have to be sleeping together in the same bedroom. State v. Rusk Prima facie evidence of rape o Force threat o Against her will o Without her consent Rape requires prove beyond a reasonable doubt. Court requires the present of force. As a prosecutor focus on the exact moment of nonconsensual sex. Also try to have the defense attorney waive the jury trial. This doubles the odds of getting a conviction. As a defense attorney focus on the past actions and try to create a long sex history. Spend a lot of time picking the jury, all you need is one with doubt. Get a jury consultant get as many guys as you can but not homosexuals. If no physical evidence, you may let your client talk b/c you may destroy the testimony of the victim. If there is physical evidence, you may always have to have your client talk so that he can explain. Rape Reform (364) There is an idea that maybe we should decriminalize rape. Make it a super tort. Some feel rape should be privatize. Problems The man does not have money and may not have the money to pay the victim for the act. A contempt order may not punish for the crime. It is hard to quantify the value of being subjected to non consensual sex. Burden of proof is lower The proposed model statute (364) The basis of rape is non consensual sex. There is a hard time differentiating between the harshness of stranger rape and rape by a person you know. Gradations can be made by looking at the mens rea of the rapists. Whether the rapists did it to acquire sex or to just harm women. Gradations of rape can also be split into sexual harassment, sexual assault… and then rape is at the end with its different levels. Classically there was a huge difference between vaginal penetration and other penetration. And also between the instrument used to do the penetration. Naturally if we keep expanding the areas and instruments used in rape, we will have to change the man/ woman distinction. The girl of tender years doctrine has been stretched out to enter into the adult realm. Regina v. Prince.
PROPERTY CRIMES o Definitions Real/Personal/Intangibles Real property- Land and its permanent improvements, things that cannot move without mechanical force. Ex- not the logs, it’s the trees attached to the ground. Personal property-movable property, everything else. Intangibles- Money, stocks, keys It has a representative value. Sometimes these are called fungibles. Possession v. title Title gives you the right of use, alienability, to give it someone else. Without possession, poses a problem. Possession interests in property is worth quite a lot. Bailment Bailment is a contract. Bailor has temporary or permanent possession interests in a property and can give it to a bailee, who does not have title in the property. Ex. Ask someone to hold something Bailments are sometimes mutually beneficiary to both bailee and bailor. Normally for a service to be rendered. o Harm Crimes MPC 220 1, 3, 4, 224.3 When the D does some with reckless mens rea and harm is done to the property. Article 220 (1084) Arson- (a) destroying a building or structure that is occupied by people. They are presumptively permanent structures. Most jurisdictions have a first degree arson and this almost always reserved for homes. Few jurisdictions are extending it to structures that are always occupied, i.e. schools, stores. (b) if you destroy a structure for the purpose of collecting insurance. 3rd degree arsons are usually reserved for reckless fires. 4th degree arson is when someone fails to report or put out a fire. The person breaches their duty. If a person fails to do so b/c they want to collect insurance money, it is beefed up. Actus reas- fire Harm- the partial or total destruction of the structure. Mens rea- same as learned earlier in the semester. Law is strict on arson. Knowingly starting a fire in a structure that has people in it, is usually a 1st or 2nd degree arson. MPC 220.3
Catchall category: Criminal Mischief This is a simple property harm, not by fire. This can be real property or personal property. When there is a fire, a person can be charged with arson (harm to structure) and criminal mischief (property inside of home). Courts take into consideration the harm caused. (Ex. More harm in destroying a Rembrandt than spraying a wall) C.M. is categorized: 1st degree, 2nd degree.. They also take into consideration who’s property was harm. Children usually call for a higher C.M. Courts also take into consideration where the mischief occurs. MPC 224.3 220.3(c) is combined with 224.3. Criminal defamation of title o When a party does something to cast out the victim’s title to the property. Ex. Filing a false lien. o This is an invasion of the harm to the interests the owner has in the property. B/c of this act, the property has been harmed. o This is by action, omission, or destruction. MPC 221.2 Criminal trespass This can run concurrent with tort actions. Criminal law can proceed with or without your consent. You have worry about the property line and the occupation line. Property Line o When a party passes the property line this is a criminal trespass. The issue is whether you did it with a sufficient mens rea to constitute a crime. o It can be decided by a RPP standard. o Property owner has a burden to make the notice available to public. (ex. Fence, sign, hedge, as long as it is higher than a foot.) Aggravated trespass is criminal trespass too. This is when you cross the plane of the house. (ex. Going down chimney, dog door) This is more serious if the act occurs on a structure that is occupied (home). This is more serious than entering into a business or one that is closed to the public. Prosecution can use this to get criminals on larger crimes. Use this to put them in jail while they get him on another crime. Also can use this by saying we know you trespassed, if you admit to the other crime, we will drop the charges. Also, you can add this to other crimes. (serve as an aggravator) ALWAYS LOOK FOR TRESPASS IN EXAM. This punishment for this crimes ranges from a fine to 7 years.
The harm of trespass is the unwelcomed presence of another on your property. The property does not have to necessarily be destroyed. DEPRIVATION CRIMES o The action of the D does not harm the property but results in a deprivation in the possessory or title interests of the owner. o The CL is starting to simplify towards MPC but it hasn’t yet. o ARTICLE 223: This is critical. KNOW THIS o Call these MPC Thefts. o CL big on making sure you get the right crime. If it fits the CL crime category, use the CL crime category. o CL theft is the crime of last resort. o MPC theft is the first resort. o Grand v. Petty This is the difference between jail time and no jail time. This distinction is based upon the value of the property that is the object of deprivation. For our purposes, the value is $1000. Petty $999 or less Grand $1000 or more It does not matter if the D does not know the value of the taken property. “You do so at your peril”. o MPC v. CL o CL Larceny 3 types: Larceny by trick, bailee This is the trepassory taking and asportation of the property of another with the intent to deprive. Intangibles are included in this category. You can’t commit larceny against real property. Trespassory o This is a required element. If you are an invited guest you cannot be charged with larceny. Negotiating when the license expires is key to this element. Also it depends on what the license allows. If there is relationship that allows entry, no trespass. If a person is in a store and takes something and walks out the door, no trespass. However, if they go through a door marked “employees only” there is a trespass. It does not matter when the trespass occurs. Jurisdictions determine what constitutes the trespass, i.e going pass the cashier. However, mere movement is not good enough. If a person is in a store and he is in a public area, then moves to a private area, and then moves back to the public space, this is trespass. Some jurisdictions have said that a license expires when you form the intent to steal.
Here it would be okay to arrest in the store. This is a minority view. o Aggravation factors: structures (homes more serious than office), when you enter (entry at night more aggravated), nature of the entrance( if it is made by breaking, it can be deemed as robbery if the intent is present), intent(what you intend to do when on the inside). Also if you are trespassing for a second time. The injury is doubled. Taking/ asportation- control o This used to require getting possession and moving. Now it means getting control of the object. Today taking a picture, is an aSportation b/c you have control of the object. Also if you call and give the information to another, there is asportation. If you make sure the object can’t be used temporarily or permanent, is asportation. The key is for a moment the person has gained control over that personal property. The property owner does not have to know about the control and does not have to be present when the control occurs. The more permanent, more dangerous, the higher the deprivation, the more serious the offense. Personal property of another o The title holder of the property and the victim of the trespass do not have to be the same. This is a “baileebailor” relationship. Two kinds of harm occurred and there are two different victims. As long as the property is not the D’s, this is satisfied. You can’t commit a larceny against yourself. Mistake of fact may play a role in this factor. This may be a complete defense. If a person loses a key to a car and a person takes the car. The person is charged with grand larceny. Intent to deprive o Two issues: (1) when do we do the concurrence inquiry, when does the intent have to be triggered? Law used to be the intent has to form at the time at the taking and asportation. Now the law says it does not matter when the intent is formed. This is a purpose crime. Drunken parties cannot form purpose (intent). Larceny is considered a more serious offense than theft.
CL BURGLARY This is a super larceny or some other felony. The breaking and entry of the occupied structure of another with intent to commit a larceny or some other felony therein. This is more serious if it is someone’s home than office. You can’t burglarize a shed that can’t be occupied. The question is can a person occupy the space. It does not have
to be real property. Some of it turns on size others turn on nature of use. Doing it at night and in someone’s home serves as an aggravator. Breaking is kicking something open, breaking a window, forced entry. Law also says that anything you have to do short of locomotion into the home, even if you inadvertently hit part of your body on a door. This can be done by an agent or instrument. Any act the defense does purposefully or accidentally that touches the structure. Entry is any breaking of the plane of the occupied structure personally, through an agent, or instrument. The personal intrusion of the occupied structure. Breaking has to occur before the entry. The reversed occurrence is criminal mischief. The breaking and entrance do not have to occur immediately. Opening an interior room can constitute a breaking and entry. Super trespass: b/c Intent: Concurrence The intent has to be not only to enter but to commit a felony upon entrance. It does not matter what the felony is. You have to have the intent when you enter. You don’t have to actually commit the felony. You just to have intent to commit the felony upon entry. The abandonment of the intent once inside is immaterial. When someone breaks into a house and steals something. It is called a burglary and a larceny. These two crimes are a “super trespass” b/c the larceny is aggravated by the burglary. Trespass is included in the crimes. Burglary is a super trespass. If a person breaks into your house and breaks something in your house. There is a trespass but no burglary. There is a transferred intent if the person breaks into a house to steal a vase and accidentally breaks it. The intent is transferred to break the vase. The key is the intent when he entered. Burglary is a big time offense. Aggravating conditions: doing it at nighttime, if you cause damage while there, when people are present…
ROBBERY o the taking or asportation of personal property from a person by force or threat with the intent to deprive. “Super Larceny” o Aggravating factors: with deadly weapon, in someone’s home, the personal property taken, trespass especially home. o Taking/ asportation Trespass isn’t necessary. Trespass is an aggravation. This is getting actual or constructive control of personal property. The idea is control. o Personal property Same as larceny. Can be intangibles and tangible properties. o From person/ presence
o
o o o o
Taking something from the person (look at notes above). Arms widththis is a person’s person. The law gets tricky when it comes to public space and private space. Area of constructive control- within the wingspan of the person. This is a question of reason. Custom can play a role in this. Victim’s home- four corners of the house are victim’s presence. Most jurisdictions would say that area around the inhabited home. The more private the space, the bigger the space. Ownership of the property is key. By force or threat This is the same as the force in rape. Force of battery or assault. The force has to be applied to the victim or someone within the victim’s earshot or “virtual shot”, reasonable person would conclude that someone can be hurt. It is imminent or actual injury to the victim, it does not have to be mortal. The victim does not have to see the D and 3rd parties don’t have to know of the harm. They don’t have to be the victim of both the threat and the deprivation of property. “good pick-pocket” is not guilty of robbery. Easy cases involve gun, knife, threatening another person. The victim of the robbery does not have to be the victim of force. It has to be a threat or infliction of harm. Threat to do something tomorrow is not good enough, it has to be imminent. This is judged by the RPP standard. If the jury would think a reasonable person would view this as a threat or infliction of imminent bodily harm. Disparity is size may be enough. There is a “take a victim” as you find them theory. If they both know about the victim’s situation, it’s easier but if one knows and the other doesn’t know about the person’s situation is harder b/c there is an intent question. Intent Look at the notes on larceny. A momentary deprivation is enough. Armed Robbery- does not turn upon the weapon being directed against the victim. The weapon can be directed against another. You don’t have to see a gun but the threat of force is still present. If the security officer can be viewed to be threatened by the D’s presence on the site where the robbery occurs, it is an offense against the corporation and against the security officers as well. There are two victims: corp and security officer.
FALSE PRETENSES o MPC 223, 3-4, 224, 5-7 o Examples of false pretenses.
o Offenses that can be committed against any property owners. Real, personal, title or possessory owners. o The differences b/t the two is when you find the intent. o If at the time of acquisition the D intended to deprive the victim, its false pretenses. Used bad check, false credit card, you knew the property was stolen. o The intent is exactly at the time of acquisition. EMBEZZLEMENT o MPC 223 5-8 o Examples of embezzlement. o Intent forms after you have properly acquired the property. o Misappropriation. o By act or omission you chose to do something adverse to the interest of the property owner. o LARCENY BY TRICK & LARCENY BY BAILEE. o Offenses that are attached by possessory interests in property. o Larceny by trick is a species of false pretenses. Person pretends to be a valet but really is not. o Larceny by bailee is a species of embezzlement. Ex. Valet using a customer’s car. At the time he got the car, he did not have an ill intent, but after he got the car he used he car in a way the customer would not approve. This is a misappropriation of the car. INCHOATE CRIMESo Crimes that defy the usual prima facie case. An element is missing and the D will still be held liable for the crime. This is a separate crime. These are separate offenses. o Attempt Liability Examples When is the D’s such that you can say that the D committed an attempted crime. The attempted crime is a separate offense than the completed crime. If the D does complete the crime, the attempted crime merges with the completed crime and the D is charged with the higher completed crime. Attempt punishment is often dictated by the punishment for the completed crime. It is normally 1/3 to ½ of the time of the completed crime. It is possible for the D to attempt a crime and commits another, he will be charged with two crimes. Repentance may exonerate the D all together. Self abandonment or renunciation is considered a mitigating factor and the crime is lessened. The D is punished on the lesser end. We punish attempt liability because these are dangerous acts. The dangerousness of the conduct itself deserves some attention by the authorities.
Attempt liability helps the cops because the police does not have to wait until the crime is committed. This allows officers to step in before the completed crime. Deterrence, retribution, and police help are all reasons for attempt liability. We waive the prima facie case in part. Harm to the victim has not occurred. There was some type of intervention but the D will be held liable for something. You prove attempt: Actus Rea and Mens Rea Law has created two fast act attempts: Assault o Assault: this is an attempted battery o Screw test o Act of threatening harm is a separate offense- assault. o So the scaring of the victim is the harm o Burglary o This could be called a criminal mischief or property or criminal trespass. o We want to stop the D before he commits the crime. o This is a super trespass. This is an attempt liability case that has been called a complete crime. You can have an assault, battery and attempted rape but not assault, battery and rape because rape is such a big crime that the others can be merged. Actus Reas.- When do you move from mere preparation (non-criminal) to acts which constitute the actus reas of attempted liability. Last Act Test- common law, maintained in this country for a long time but we don’t have it anymore. o Law requires the D to complete every step last step and the only thing that has to occur is a chain of causation for which the D needs to exercise no voluntary acts or omission- all that is needed is the natural sequence of events. o You can only get the D only after the have lit the match for arson. The police hope the chain is broken or the police themselves stop the chain after it has started. You have to wait until the gun is shot to get someone for attempted murder. You have to wait until the knife touches you (in a fatal area), to get someone on attempted murder. If they stab at your toe, battery. o If you do this before, the D will walk. The idea is that you want to give the D a chance to repent. o Here the punishment is at least half the time of the completed crime. Proximity Test- 1/3 of jurisdictions. o This is the most D friendly.
o You have to look at potential harm that would befall the victim. You have to look at what the D did and determine if it was close enough to complete the crime. o Look at what other steps need to be take and what other causes have to unfurl for the act to be completed. Ex. If you pull out a gun in a crowded place, you can be arrested for attempt. o The tighter the actus reas, the fewer the steps, the earlier you can make the arrest. o You have to focus on where the crime is going to occur and who the victim is. Ex. In an arson case, (in most jurisdictions) the first chance to arrest is when the D gathers the materials in the office. The last steps are finishing the arrangement and lighting the wick. You could arrest her when she is walking up the stairs on a transferred intent theory b/c she is in a building with many offices. o Proximity takes into account also the nature of the casual chain, which the D’s AR seems to be. o You look at the RPP. o People v. Rizzo (565) They are innocent b/c there were too many acts that have to occur before the right AR. They were not close enough in time. o State v. Duke (567) Court says that it was not close enough in proximity to constitute statutory rape. Maybe if he began to negotiate price or touching her on top of her clothes is enough. o Poisoning Case Husband tries to poison his wife w/ arsenic. She can drink the arsenic up to 99 with no damage. On the 100 time she’ll die Proximity test says- the chain is close enough on the 100th day when he put the arsenic in her tea. The court just disregards the previous 99 days. Court says you have to wait until the D brings the arsenic into the house to put into the tea. He can be charged with battery for those previous 99 days, but he can’t be charged with attempted murder before the 100th day. If you have imperfect knowledge about when the arsenic would kill, you may be able to get him on the first day he puts the arsenic into the tea. Equivocality Test o This is the most Prosecutor friendly
o Looks at what the D has done so far. The more steps in the crime the earlier in the game you can arrest the D. This is the same as Res Ispa Loquitor. The D’s acts speak for themselves. o More interested in what has happened so far. The more the acts look criminal, the easier it is to say that this is an attempt. This points to the D’s intent to commit the crime. o In earlier example, police may question the D for poking holes in the milk bottle, especially if she has a previous history of arson. Even more suspicious when she buys wick, if she does not make candles. Her actions look even more suspicious when she gathers the things in her trunk. She could be arrested when she bought gas. o People v. Duke If this case was in this jurisdiction, when he flashed the light he could be arrested. The mere act of engaging in virtual sex with a child is now a crime. o Look to see if there is any other scenario for which the D would act this way. o You don’t have to wait for the D to complete a specific attempt crime because you can use a transferred intent theory. Some prosecutors may go for the most harsh time. o McQuirter v. State Shows that the test may encouraged discrimination in the judicial system. There is no doctrinal stopping point for the chain of causation. This is the reason why this test is rejected in some jurisdictions. MPC Test o This is about half and half o Substantial step test: the D has to have taken a substantial step towards the completion of the crime. You don’t have to wait for the last step but it requires a demonstration that the D has made substantial steps to commit that crime. o In poisoning case, the substantial step may be at step 20. o This may say that you have to wait until the D is on her way to the office to commit the arson. o You have to give the D time to repent. o Rizzo case, the substantial step test would say if they are driving around looking for the guy especially if it required a lot of preparation. o The more we see in preparation, the more close the criminal activity looks. Mens Rea Standard
Specific intent o Mens rea standard is specific intent or purpose. o The easiest case and the most serious is when the D intends to the completed crime but can’t do it or was prevented from doing it. o If you don’t have evidence as to the D’s intent, you have to show that the D specifically intended to do those acts which constituted the actus reas of the attempt, which if completed would be the completed crime. You don’t have to prove the D had specific intent to commit the crime. o How do you attempt a strict liability crime? You don’t focus on the mens rea on the completed crime, you only focus on the acts the D performed. The problem in Regina v. Kingston, this court held the drunkenness masks the intent of D’s. You cannot form the level of mens rea required to get her for attempt. The D can’t be arrested until offense is completed. Attempted negligent arson Focus on the acts that constitute negligent arson. o You don’t have to have evidence of intent of the completed act, to prosecute Ds. Wolensky case (attempted involuntary manslaughter) If we changed the facts to the owner hiring a dangerous rock band. Focus on the acts that constitute the dangerousness of the act. The moment the act starts both the actors and Wolensky are guilty of attempted involuntary manslaughter. Because danger is so high, this makes it easy. o Focus on the acts performed and the mens rea attached to them. o B/c some acts are innocent and may not ripen into a completed crime, that is the reason why it takes these acts longer to develop into attempt crimes. Factual impossibility o If it is factually impossible to commit the crime, although the D has the intent to commit the crime, half jurisdictions say this is a complete defense.
o Others say factual impossibility is not a defense because the D wanted to commit the crime. It is just another reason why the D did not commit the crime. It is immaterial. o The trend is that it is not a defense. SOLICITATION o This is between attempt liability and accomplice liability. This is becoming more common in American law. State v. Davis (581) “Murder for hire” case So now you have to create the actus reas of homicide. o Collected money o Created a plan o Meet with the undercover cop The actus reas was not met b/c there is still too much to occur. If this were an equivocality jurisdiction, it may be enough. This is a proximity test b/c so much more has to occur. Under substantial test more still has to occur. U.S. v. Church (582) Show evidence of the purported death. This is enough under the substantial test. This case was so developed and required a hoax. Because of the dangerousness of the crime, most jurisdictions make the act of specifically intending to solicit the crime of murder, a crime. This is a specific intent crime and requires a harsh punishment. o MPC 5.02 Talks about solicitation for any crime. Most jurisdictions have reserved solicitation for serious crimes against the body, (murder, rape, kidnapping, torture, mayhem). Battery is not included. Solicitation is artificial and can be expanded. The solicitor is held as if he did the crime. The liability of the solicitor does not depend upon the success of the act. If you hire someone to kidnap someone and they kill the person. The solicitor may only be charged with kidnapping. The solicitation may be deemed as a felony and felony murder theory may kick in. It is not so easy to do a transferred intent theory, as a prosecutor. Probably for a lesser degree crime, (2nd or 3rd degree torture). Legislature may put caps on what you can do for solicitation. The solicitor may be punished for doing the crime. (5-7 years in jail even if the crime does not occur) ACCOMPLICE LIABILITY o when parties cooperate in a pack to cause harm, they will be held collectively liable. If the relationship between them allows it. This is close to conspiracy, even if you didn’t do the crime. This is a super accomplice liability.
o This breaks the rule about D on one end and State on the other. o AR of Parties Need to know common law and MPC language MPC- defendant- person doing actual crime o Accomplice- party not committing the crime but at the scene of the crime but helping the D complete the crime. o Accomplice- party before the crime occurred. CL- principal in the 1st degree – person doing the actual crime o Principal in the 2nd degree- parties not committing the crime but at the crime scene that helps the principal in the 1st degree complete the crime o You can also be this by an act of omission. ( may be omission of contractual duty) o Accessory before fact- party there before the crime was completed. Giving instructions (not good enough to be a principal in 2nd degree) Does something to help the parties that eventually commit the crime. o This can be by act or by omission. o This can be any and every one. o Accessory after the fact- someone who helps after the crime has been committed. Making the crime worse by any action or omission. o This can be by act or omission. o Any action that would exacerbate the crime. Today you don’t have to necessarily be there to help complete the crime. (cell phone) “virtually on the scene of the crime”. You have to be there more or less at the time of the crime. Key is to look at the conduct of the additional party to see if it can be an independent crime. You can be a principal in the first and second degree. o Mens Rea: Specific Intent Purposeful mens rea attached to the act. You have to purposefully intend to do the act or the omission and you have to know with reasonable certainty the D’s acts will be aided and abetted by your acts. You have to have good knowledge why the D wants your aid and wants to commit the specific crime. Willful blindness is close to the edge but most jurisdictions say this is not enough. RPP standard is applied to what one specifically intended to do. Transfer intent works here. o An accomplice can be held liable for the full offense. o Safeguard is to have a strong mens rea inquiry. o The law insists that the crime has occurred on which the accomplice liability would depend. o The D does not have to be prosecuted.
o An accomplice can still be tried. o Accomplice liability can never be held against a drunk person. One can be held for negligence. o Accessory after the fact, one can get 1st degree. o Omission of a duty is almost always 4th degree. o You can prove high level mens rea by D’s conduct o You can have accomplice liability on an attempted crime. o Sometimes you can characterize accessory before the facts as an attempt. o These are choices of theory, accessory theory can be hard to prove. You can only use one or the other. o Equivocality jurisdiction Accessory before the fact can be transferred to attempt. Arsenic example o Main difference between an accomplice liability and conspiracy is that in conspiracy the D does not have to commit the crime. Here, the principle in the 1st degree has to commit the crime. o Accessory gets the same defenses of the D or principal of the 1st degree o Accessory before the fact aids crime, then calls police. The accessory is still responsible for the mens rea present during her actus reas- still a crime. o Calling police can mitigate punishment. o Here the “but-for” test may not be met. DEFENSES o Defenses in Prima Facie cases Derailing the prima facie case, i.e. no actus reas, no mens rea (mistake of fact/ law), no causation(intervening causation) Mitigants Voluntary Manslaughter (partial affirmative defense to 1st degree murder) o Post Hoc Defenses Justification- The D did commit a crime but her acts were justified. She was defending herself, others, property, or committed the crime b/c of necessity b/c she had no choice but to commit a crime and she chose the lesser one. The conduct is justified. Necessity- can totally relieve the D of charges or can lessen charges. Self Defense Excuse Doctrine- The D committed the crime. The question is if the d can be excused from liability from the crime. It is based on the specific D in this specific situation. Duress- The D’s mind was overborne temporarily at the time of the prima facie case resulting from a harm. Duress usually involves another party. Insanity- The D’s mind was overborne permanently at the time of the prima facie case resulting in a crime. There is something in the D’s head, mind, does not work and although the d did commit the
crime, He was not in his right mind. Drugs and mental injuries may play a role. This is distinguished from Plea Bargaining. The party in not being excused but engaging in bargaining. This is also distinguished from Competence to Sustain Trial. This is the state of the D’s mind at the time of the trial.