Goodman Criminal Law Outline

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					1 Criminal Outline Fall 2006 – Goodman


Enforcing the Presumption of Innocence Until the prosecution has proven guilt of the D, the presumption is that the D is innocent. Is there a sufficient legal argument to prove that the D is guilty? Owens v. State D was found unconscious behind the wheel of an automobile parked on a private driveway with the lights on and the motor running; he was surrounded by empty beer cans. D was convicted of driving while intoxicated. Court held that the totality of the circumstances were inconsistent with a reasonable hypothesis of innocence Proving the Elements of Criminal Liability:  Actus Reus  Mens Rea  Causation  Attendant Circumstances (for some crimes)  Result (for some crimes) *must prove these elements beyond a reasonable doubt Proof Beyond a Reasonable Doubt Moral Certainty – Abiding Conviction Firmly Convinced – Does not require certainty No Waiver or Vacillation – Decision is stable and unwavering No Hesitation – You would make the same decision in your own affairs A) Actus Reus Physical or external part of the Crime 1) Did the D act?  Words are sufficient 2) Was the act voluntary?  Conscious and volitional  By extending the time frame, an act may be more likely viewed as voluntary Martin v. State Police took D to a public highway and arrested him for public drunkenness; Court reversed the conviction – the actus reus must be a voluntary act 3) Was the act a conditioned response?  MPC Sec 2.01 – Non-voluntary acts include:  Reflex or convulsion  Act during unconsciousness or sleep  Act during hypnosis  Act that is not the product of the effort of the actor State v. Utter

2 D killed his son while intoxicated, but claimed his act was a conditioned response from his war experience; Court held that D’s heavy drinking was a voluntary act which negates any defense stemming from the “conditioned response” argument. A voluntary act such as drinking is enough to satisfy the actus reus requirement 4) IF there was no act, was there an omission? --Negative acts = failure to act  Did D have a legal duty to act? -Duty created by relationship (parent/child; employer/employee) -Duty created by a statute -Duty created by contract (babysitter) -Duty created by voluntary assumption -Duty created by the creation of the peril Ex: Woman stabbed her husband and left him to die; she created the risk, thus there is a duty People v. Beardsley D’s mistress took morphine tablets when she was intoxicated and she died; court held that D did not have a duty – there was no special relationship as between a husband and wife  If there was a legal duty, did the duty expire? Barber v. Superior Court Drs. Took patient off of life support when he was unlikely to recover from his comatose state; court held that the Drs were not liable for his death – the duty to provide treatment has expired when it is no longer effective


Mens Rea Mental/internal ingredient of the crime – the guilty mind Intent Acting with the purpose to cause a specific harmful result (common law concept – in between purpose and knowledge as defined in the MPC) -General Intent: intent to commit the act -Specific Intent: intent to commit crime or cause a specific result People v. Conley D intended to strike someone with a wine bottle, but he missed and struck a different victim, causing permanent disability; court held that D’s actions were sufficient to satisfy the ―criminal intent‖ requirement necessary to convict him of aggravated battery; it is irrelevant that D did not intend to inflict the severe injuries that occurred Intent can be inferred from the surrounding circumstances, the offender’s words, the weapon used, and the force of the blow. MPC States of Mind 1) Purposely – D acts with a goal or aim to achieve a particular result; involves a conscious object to engage in conduct or to cause the result  If there are attendant circumstances, D is aware of their existence

3  2) Generally purpose is the standard for most egregious crimes – murder, treason Ex: Burglary – D enters a building with the intent to commit a crime therein Knowingly – D is virtually or practically certain that his conduct will lead to a particular result  Willful Blindness Doctrine: reckless thought constitutes knowledge; if D avoids learning the truth so that he will not be certain, courts will still find that he acted knowingly Ex: D sets someone’s house on fire with the intent to destroy their belongings, but it is virtually certain that the homeowner will die in the fire. With regard to their death, D acted knowingly. State v. Nations D did not know that one of the strippers in her club was under age; D was aware of the likelihood that the girl was not legal, but chose not to find out; court held that D’s conduct was not knowingly (MO did not include willful blindness in their statute) *look to particular state statutes Recklessly – D consciously disregards a substantial and unjustifiable risk; gross deviation from standard of conduct that a law abiding person would observe.  Subjective standard – requires the D to personally disregard the risk Ex: D drives 75 MPH past a school during school hours  Reckless v. Knowing o If D is so aware of the risk that he is virtually certain it will occur, it is knowingly. If the D is aware of the risk, but is not as certain that it will occur, the act is reckless Negligently – D is unconscious of a risk and acts where an ordinary person would not have acted; should be aware of substantial unjustifiable risk; gross deviation from standard of conduct that a law abiding person would observe  Objective Standard – how the ordinary prudent person would have acted Ex: D is unaware that his child’s illness is life threatening and fails to seek medical care; ordinary person would have known to seek medical care; D acted negligently



Proving Mental States  Culpability required unless otherwise specified is recklessly  Prescribed culpability requirement applies to all material elements o Exception: if it is contrary to legislative purpose US v. Morris D hacked into gov computers; court held that the state only had to prove that he ―intentionally accessed‖ the network, and not also that he ―intentionally caused loss‖ (intentionally was only applied to the access portion of the statute – this was the legislative intent)  Note hierarchy of culpability – if you prove something higher than is required by the statute, it is sufficient Transferred Intent If D has intent to commit a crime, that intent can be shifted to any victim


Disproving Mental States 1) Mistake of Fact Mistake of fact precludes criminal liability if it negates the necessary mental state For Purpose or Knowledge, honest/good faith negates MR For Reckless, honest is ok if it negates awareness For Negligence, good faith + reasonable negates MR People v. Navarro D took wooden beams from a construction site; court held that he was not liable because he had taken the beams in good faith, therefore he did not satisfy the mens rea element of the crime (specific intent to steal) 2) Mistake of Law Courts generally rule that mistake of law is not a defense – people should know the law Exceptions:  Reliance on an official statement of the law or someone charged with interpreting the law  Reliance on law that is afterward determined to be invalid or erroneous Mistake of Law may negate liability if:  D does not have necessary mens rea for the crime (if MR requirement is that D must know that he is committing a crime)  D does not have requisite knowledge of the law – limited to when: o D’s conduct is wholly passive o No actual notice of the law; and o The violation involves a regulatory offense (Ex: failed to file paperwork, etc – generally omissions) People v. Marrero D, a prison guard, was arrested for carrying an unlicensed pistol. D moved to dismiss on the basis of mistake of law; court held that D was liable – personal misunderstanding of the statutory definition of a peace officer did not excuse him C) Causation Relationship between what the D did and the resulting harm  What is the result?  What did the D do?  Is the D an actual cause? o But For Test  The result would not have occurred ―but for‖ the D’s action  Acceleration Rule: if your actions accelerate the injury, they satisfy the ―but for‖ test Oxendine v. State

5 D beat 6 yr old son after his girlfriend had inflicted mortal blow a few days prior; court held that D’s actions had not been proved to accelerate the son’s death; aggravation is not the same as acceleration – only acceleration will be sufficient to satisfy causation o Substantial Factor Test  Courts use this test when two Ds, acting independently, commit two separate acts, each of which is sufficient to bring about the prohibited result  Applies in limited circumstances; both Ds are held liable despite the fact that they may not be able to prove ―but for‖ cause (they are a substantial factor)  Ex: two people shoot an innocent person at the same time – no “but for” cause, but they are both liable) o Concurrent Causes  More than once actor and both actions would have caused death, both are the cause-in-fact  Is the D the Proximate or Legal Cause? An effort to determine, based on policy considerations or a matter of fairness, whether it is proper to hold the Ds criminally responsible for a prohibited result -Was the result foreseeable? o Is there an intervening act?  Acts of God or nature  Acts of a third party that accelerates or aggravates  Acts of omissions of the victim o Should the intervening act negate liability?  Dependent or independent?  Responsive or coincidental?  Foreseeable or unforeseeable?  Abnormal or Bizarre? o Intervening acts break the chain of causation where :  The prohibited result is beyond the scope of any fair assessment of the danger created by D’s conduct  Where it would otherwise be unjust, based on fairness and policy considerations, to hold the D criminally responsible for the result Kibbe v. Henderson Ds robbed a man and left him drunk on the side of the road; he was then hit by a college student driving on the highway; court held that causation must be determined by whether the intervening force was a sufficiently independent or supervening cause of death Intervening acts – third party hit him with his car; victim walked out onto the road Which acts are responsive and which are coincidental? Hit by the car – coincidental Victim in the road – coincidental

6 Were these coincidences foreseeable? YES It is reasonable to hold someone liable when the coincidence was foreseeable o Apparent Safety Doctrine  When victim reaches safety, the original wrongdoer is no longer liable for ensuing harm D) Attendant Circumstances (for some crimes)  Some crimes may require that certain circumstances or conditions existed at the time of D’s acts; without proof of those circumstances, D is not guilty of that crime Result (for some crimes)  Some crimes may require a particular result; without that result, D is not guilty of that crime



Specific Crimes A) Homicide The unlawful killing (AR + R[death]) of another human being (AC – person or fetus) with malice aforethought (MR – malice if 1st or 2nd degree) Note: causation – AR of D caused the death Model Penal Code MURDER: Committed purposefully or knowingly; or recklessly under circumstances manifesting extreme indifference to the value of human life – recklessness is presumed if actor is in the commission of, or attempt to commit, or flight after committing robbery, rape, arson, burglary, kidnapping, or felonious escape *Murder is a felony of the first degree MANSLAUGHTER: Committed recklessly; a homicide which would otherwise be murder is committed under the influence of extreme mental or emotional disturbance for which there is a reasonable explanation or excuse. (Reasonableness is determined from the viewpoint of a person in the actor’s situation under the circumstances he believes them to be) *Manslaughter is a felony of the second degree NEGLIGENT HOMICIDE: Criminal homicide is negligent homicide when it is committed negligently *Negligent Homicide is a felony of the third degree California Penal Code MURDER: Unlawful killing of human being or fetus with malice aforethought 1ST DEGREE: Perpetrated by destructive device or explosive, weapon of mass destruction, poison, lying in wait, torture, or other willful, deliberate, premeditated killing Committed in the perpetration of arson, rape, carjacking, robbery, burglary, mayhem, kidnapping, train wrecking, or other enumerated sexual offense

7 Perpetrated by means of discharging a firearm from a motor vehicle intentionally at another person with the intent to inflict death PUNISHMENT: Death, life imprisonment, 25 years to life Note: to prove that the killing was premeditated and deliberate, it is not necessary to prove D maturely and meaningfully reflected upon the gravity of their act 2ND DEGREE: All other murder PUNISHMENT: 15 years to life MALICE: Express – deliberate intention to take away life Implied – abandoned and malignant heart; no provocation MANSLAUGHTER: Unlawful killing of a human being without malice a) Voluntary: upon a sudden quarrel or heat of passion (3, 6, 11 years imprisonment) b) Involuntary: killing during the commission of an unlawful act (not felony) or during the commission of a lawful act that might cause death in an unlawful manner or without due caution (2, 3, 4 years imprisonment) c) Vehicular: driving a vehicle in the commission of an unlawful act (not felony) with gross negligence, or driving a vehicle during the commission of a lawful act that might cause death in an unlawful manner and with gross negligence (1 year jail, or 2, 4, 6 years imprisonment) (without gross negligence – up to 1 year jail) TIME: To convict for murder or manslaughter, it is not requisite that the party die within 3 years and a day after the causes of death administered. If the death occurs beyond this time, there will be a rebuttable presumption that the killing was not criminal (prosecution shall bear the burden of overcoming this presumption) 1) Mens Rea – “Malice aforethought” (common law mental state for murder)  Intent to kill (unless there was adequate provocation)  Intent to cause grievous bodily harm  Abandoned and malignant heart (implied or presumed intent to kill)  Willful and Wanton conduct  Intent to commit a felony (strict liability for homicide during a felony – see felony murder rule)  Malice can be express or implied Express when there is manifested a deliberate intention unlawfully to take away the life of a fellow creature Implied when no considerable provocation appears, or when the circumstances attending the killing show an abandoned and malignant heart Knowledge or purpose is sufficient to establish malice 1st Degree Murder a) Poison, lying in wait, willful/deliberate/premeditated, felony enumeration


8 *Willful, deliberate, premeditated killing, or a killing committed in the perpetration or attempt to perpetrate arson, rape, robbery, or burglary is murder in the 1st degree State v. Schrader D went into a gun shop where he got into an argument with another customer. D stabbed the man 51 times alleging he was known to carry a gun and theat the act was done in self-defense. Court upheld conviction for 1st degree murder – in order to constitute ―premeditated‖ murder an intent to kill need only exist for an instant (Minority View) Majority rule: Premeditate – to think about beforehand; Deliberate – measure and evaluate the major facets of a choice or problem Midgett v. State D frequently abused his son, and on one occasion became drunk and struck four blows to his child’s stomach. Three days later, the child was dead. The autopsy revealed that the child had died as a result of intra-abdominal hemorrhage cause by blunt force trauma. Court held that D could not be convicted of 1st degree murder – no premeditation or deliberation. Intent to abuse is not intent to kill. State v. Forrest D’s father was admitted to the hospital and found to be terminally ill. Alone at his bedside, he began to cry and tell him how much he loved him – D then pulled out a small pistol from his pants’ pocket, put it to his father’s temple, and fired. D talked openly with law enforcement officials, stating, ―I promised my dad I wouldn’t let him suffer‖, etc. Court held that the circumstances and D’s own statements establish a factual basis for premeditation and deliberation necessary to convict D of 1st degree murder b) Premeditation and Deliberation – Factors for Evaluation  Want of provocation on the part of the deceased  Conduct/statements before and after the killing  Threats and declaration of D before and during course of the occurrence giving rise to the death of the victim  Ill will or previous difficulty between the parties  Dealing of lethal blows after victim has been rendered helpless  Evidence that the killing was done in a brutal manner


2nd Degree Murder a) Unlawful killing of a human being with malice aforethought (but without willfulness, premeditation and deliberation to warrant 1st degree murder) b) Malice may be expressed or implied Express – when there is manifested a deliberate intention unlawfully to take away the life of a fellow creature

9 Implied – when D does an act with a high probability that it will result in death and does it with a base antisocial motive and with a wanton disregard for human life Balancing Test:  What interest are we protecting? (Social utility)  What is the probability of harm?  How great is the harm? IF the balancing test shows low social utility/low probability and severity of harm, homicide will most likely be mitigated to manslaughter



Manslaughter (Homicide without Malice aforethought) a) Voluntary: upon a sudden quarrel or heat of passion (malice is mitigated by certain circumstances) 1) “Rule of Provocation” Use to determine if murder should be mitigated to manslaughter:  There must be adequate provocation  The killing must have been in the heat of passion  Sudden heat of passion – that is – killing must have followed the provocation before a reasonable opportunity for the passion to cool  Must be a causal connection between the provocation, the passion, and the fatal act Girouard v. State D was in an argument with his wife. She berated him with verbal attacks, and he proceeded to stab her to death. Court held that words alone, no matter how abusive or taunting, do not constitute adequate provocation to justify a conviction of manslaughter rather than 2nd degree murder.  Killing was in the heat of passion: angered by the argument  Sudden heat of passion: argument arose suddenly  Causal connection: the fatal act was a result of the argument  At issue: o Adequate Provocation – must be calculated to inflame the passions of a reasonable man to cause him to act for the moment from passion rather than reason o Words are sufficient for adequate provocation if they are coupled with a present intention and ability to do harm o Wife did not present an intention and ability to do harm – she was 115, he was over 200 Traditional areas of adequate provocation:  Spouse having sex with someone else  Mutual combat

10    Assault and battery Injury to or rape of a close relative Resisting an illegal arrest

People v. Casassa D was casually dating the victim when she broke things off. D became obsessed, breaking into her apartment and eventually stabbing her. D argued that he had acted under the influence of ―extreme emotional disturbance‖ and therefore should only be convicted of manslaughter. Court held that D’s emotional reaction at the time of the crime was so peculiar to him that it could not be considered reasonable so as to reduce his conviction The defense of ―extreme emotional disturbance‖ has two components: (EED mitigates malice in NY) 1) The D must have acted under the influence of extreme emotional disturbance 2) There must have been a reasonable explanation or excuse for such extreme emotional disturbance MPC – 2 prong test: Subjective: was the D actually suffering from EED? YES Objective: reasonable explanation or excuse for the actor’s disturbance? NO b) Involuntary: in the commission of an unlawful act not amounting to a felony, or in the commission in an unlawful manner (without due caution and circumspection) of a lawful act which might produce death Unintentional Killings: Unjustified Risk-Taking Extreme recklessness; criminal negligence Berry v. Superior Court Two year old was killed by D’s pit bull. The dog was tethered to a fence, but no obstacle prevented access to the dog. The victim and his family lived on the same lot sharing a common driveway. James was playing in the yard and was killed by the animal. D was charged with 2nd degree murder, but was convicted of involuntary manslaughter, as a base antisocial motive and wanton disregard for human life was not proven. State v. Hernandez D was driving a van on the highway when he came around a curve, slid into the wrong lane, and hit a truck, instantly killing the passenger. D was thrown from his van, and when attended to by a paramedic, he told her that he had drunk a 12 pack and some whiskey. Elements to be proven: 1) D acted with criminal negligence; and 2) in doing so, D caused the victim’s death Criminal Negligence:

11   Gross Deviation from the reasonable person standard of care, such that the deviation justifies condemnation (objective) Actual present knowledge that the act is dangerous (subjective)

State v. Williams Ds, husband and wife, were convicted of manslaughter for failing to supply their 17 month old child with necessary medical attention. Parental duty to provide medical care for a dependant minor child is characterized as a natural common law duty. WA statute states that the crime of manslaughter is committed if the death is the proximate result of only simple or ordinary negligence. (Majority requires criminal negligence) 5) Felony-Murder Rule Felony-murder rule will allow the crime to be bumped up to first degree, whereas it would otherwise be second degree or involuntary manslaughter One is guilty of murder if a death results from conduct during the commission of or attempted commission of any felony (Felony + Killing = Murder) Elements: AR – attempt or success in committing the felony MR – Intent to commit felony Causation – does the death result from the felony? Court is lenient, because they want to punish killings that occur while in commission of a felony Result – Someone dies a) Under Felony Murder – we must still decide whether the criminal gets 1st degree or 2nd degree  Is the felony on the enumerated list of the statute? If so, we have 1st degree  Is the act a felony? If so, we may have 2nd degree; if not, we do not have a crime under the felony-murder rule

People v. Fuller Ds stole tires off of vans parked in a dealer’s lot; Police chased them and they eventually ran a red light, striking another vehicle that had entered the intersection and killing the driver. Court upheld conviction for 1st degree murder. Note: Burglary falls directly within the purview of CA’s first degree felony-murder rule b) Limitations on the Rule A number of restrictions limit most modern incarcerations of felony-murder; unlimited felony-murder rule would result in a number of unsettling outcomes 1) The “inherently Dangerous Felony” Limitation

12 RULE: Felonies applicable to the felony-murder rule are limited to those that are inherently dangerous to human life (SC of CA)  How do we decide if a felony is inherently dangerous? o Look at the felony in the abstract – not the specific facts of the case: does the felony always lead to physical harm? People v. Burroughs Victim was diagnosed with terminal leukemia and turned to alternative medicine after losing hope in traditional methods. Victim’s condition began to rapidly deteriorate, but D convinced him to postpone a bone marrow test urged by his doctors. D administered deep abdominal massages, and the victim died that night of a massive hemorrhage. Felony: unlicensed practice of medicine (not inherently dangerous) Court held that the underlying purpose of the felony-murder rule is to deter unnecessary violence which might result in a homicide – when the felony is not inherently dangerous to human life, the felony-murder rule is contrary to sound judicial policy 2) The independent Felony (or Merger) Limitation RULE: Felony-murder may apply when the underlying offense was committed with an “independent felonious purpose” as opposed to a “single course of conduct with a single purpose” People v. Smith D beat daughter, which led to her death. Trial court convicted D of 2nd degree murder and felony child abuse under the felony murder rule Court restricted the scope of felony murder by holding it inapplicable to felonies that are an integral part of and included in fact within the homicide In this case, there is no independent purpose for the conduct – the purpose here was the very assault that resulted in death If doing the same felony harder led to the death – the merger rule will apply and felony-murder will not ensue State v. Sophophone D and accomplices burglarized a home, and the police arrived on the scene. One officer chased down D, handcuffed him, and placed him in a police car. Another officer chased down one of the other intruders – the officer ordered him to the ground but he rose up and fired at the officer, who returned fire and killed him. D was charged with felony murder. Court held that felonymurder was inapplicable: the death was not caused by the co-felon – no causation; breaks the causal chain; the co-felon is not criminally responsible for the lawful acts of a police officer during the felony. B) Rape Modern elements:

13 1) Intercourse 2) By force or threat of force 3) Against the will (court looks to resistance) 4) And without consent Force is an essential element of the crime and to justify a conviction, the evidence must warrant a conclusion either that the victim resisted and her resistance was overcome by force or that she was prevented from resisting by threats to her safety Rusk v. State Victim gave D a ride home from a bar, he asked her to come up and she refused; D then took her keys and asked, ―Now will you come up?‖ Victim was alone in D’s apartment, did not call the police; D came out of the restroom and they had intercourse. Victim left and debated as to whether she should go the police. Court held that it was a question of fact for the jury as to whether D was guilty BARD. Commonwealth v. Berkowitz Victim was in D’s dorm when he began coming on to her; she said ―no,‖ but never tried to leave or call to anyone. Court held that the evidence was not sufficient to prove rape. Evidence of verbal resistance is only sufficient where coupled with a sufficient threat of forcible compulsion, mental coercion, or actual physical force of a type inherently inconsistent with consensual sexual intercourse. Victim’s verbal protestations were not sufficient evidence of ―forcible compulsion‖ required for the crime of rape Look to totality of circumstance- factors: 1) Age- parties are same age 2) Mental/physical- no apparent acts of control; we do not know his and her physical sizes 3) Atmosphere- dorm room; not controlling or intimidating 4) Domination- straddled her for a period; no threat or consistent physical or mental control 5) Duress- she entered the dorm room freely; stayed freely What did the parties do afterward? She ran to boyfriend who called the police People v. John Z D continued to persist after the victim withdrew her consent- this was sufficient to constitute rape Withdrawal of consent effectively nullifies any earlier consent and subjects the male to forcible rape charges if he persists he what has become nonconsensual intercourse 1) Mens Rea for Rape Commonwealth v. Sherry Mental state of the defendant- must have general intent (no purpose, knowledge, malice, etc. required) Negating D’s mens rea:

14 Mistake of fact- must be honest and reasonable; in good faith the D believed he had consent, and a reasonable person would have felt the same way 3) Defenses A) Introduction A System of Defenses: 1) Failure of Proof Defense All elements of the offense cannot be proved 2) Offense Modifications While the actor has satisfied all elements of the offense, he has not caused the harm sought to be prevented by the statute defining the offense (parents pay kidnapping ransom- they satisfy elements of an accomplice, but are not liable) Justifications*** Harm prevented by the statute is outweighed by the need to avoid an even greater harm or to further a greater societal interest Focus on conduct; ask whether or not on balance, is the thing this person did a good thing? Is the act necessary? Is it proportional? Self defense is a justification a) Principles of Justification Triggering conditions permit a necessary and proportional response- to be justified, responsive conduct must: 1) Be necessary to protect or further the interest at stake; and 2) It must cause only a harm that is proportional or reasonable in relation in relation to the harm threatened or the interest to be furthered Explanations of Justification principles: 1) “Public Benefit” Theory Conduct is not justified unless performed in the public interest (mostly limited to public officers) 2) “Moral Forfeiture” Theory Moral rights may be forfeited by the holder of the right- when D freely chooses to wrongfully threaten P’s life; D forfeits his right to life (looks at offender) 3) “Moral Rights” Theory P has a right to protect a particular moral interest against an outlaw who is attempting to violate her rights (looks at defender) 4) “Superior Interest” or “Lesser Harm” Theory In each case there is a superior interest- weighs moral rights; protection of human life is superior to protection of property rights (ex: D trespasses in order to avoid a tornado)




Excuses*** Conditions suggest that the actor is not responsible for the deed

15 Focus on actor Society dies not condone the behavior, but the person should not be liable Insanity; duress; intoxication are excuses 5) Nonexculpatory Public Policy Defenses SOL; diplomatic immunity; incompetence- purely public policy arguments Societal benefit underlying the defense arises not from D’s conduct, but from foregoing his conviction


Self Defense Common Law Elements 1) Must have been a threat, actual or apparent, of the use of deadly force against the defender 2) Threat must have been unlawful and immediate 3) Defender must have believed that he was in imminent peril of death or serious bodily harm, and that his response was necessary to save himself there from 4) These beliefs must have been honestly entertained, but also objectively reasonable in the light of the surrounding circumstances 1) Defining Aggressor: -Affirmative unlawful act reasonably calculated to produce an affray foreboding injurious or fatal consequences in an aggression -Provokes conflict -One who is not free from fault -One who escalates the situation Retreat: -Could the party invoking self defense have reasonably retreated from the situation (and thereby not have had to use deadly force)? Common law (minority): forbids the use of deadly force by one who has an avenue for safe retreat Majority US- one may stand his ground and use deadly force when reasonably necessary to save oneself Note: Castle Doctrine- one does not have to retreat from own home (area outside your home can be included); doctrine can only be invoked by one without fault in the conflict


United States v. Peterson Man drove into alley behind D’s home and was attempting to steal windshield wipers from his car; D went in his home, grabbed a gun, and came outside. The man was in his car leaving, but D told him not to move or he would shoot; the man got out of his car with a lug wrench, and D shot him. Court held that D was not acting in self defense Consider:

16 1) Whether D was the aggressor in the altercation; and 2) Whether D failed to retreat, and if so, could he have done so without jeopardizing his safety RULE: One who is the aggressor in a conflict culminating in death cannot invoke the necessities of self preservation/defense; if the aggressor communicates an intent to withdraw and in good faith attempts to do so he restores his right to self defense 3) MPC Sec 3.04 USE OF FORCE IN SELF-PROTECTION (1) Actor must believe the force was immediately necessary for the purpose of protecting himself against the use of unlawful force by another person on the present occasion (2) Limitations on use of force- see page 1003-1004 *Imminency requirement- force as a response to threats of imminent attack only “Reasonable Belief” Requirement People v. Goetz Teenagers were on the metro and approached a man demanding five dollars; the man took out a gun and shot all four teenagers. Court held that D could not invoke self defense. A person may not use deadly force unless: a) he reasonably believes that other person is using or about to use deadly physical force, or b) he reasonably believes that other person is committing or attempting to commit a kidnapping, forcible rape, forcible sodomy, or robbery 5) Battered Women Syndrome Battered Women Syndrome refers to situations where one spouse has achieved almost complete control and submission of the other by psychological and physical domination. It is usually associated with abuse over a long period of time, and the abused spouse comes to believe that the other person is in complete control and that they themselves are worthless and cannot get away. State v. Norman D had been severely mental, physically, and sexually abused by her husband for twenty years; one day while he was napping, she shot and killed him. Court held that victim’s passiveness at the moment the homicidal act occurred precludes D from asserting self defense. We must be sure that justification for homicide is only extended to cases whether there is an imminent threat. Self defense-1) Subjective test: D believes the act necessary to save herself from GBH/death 2) Objective test: Reasonable person under the same circumstances would believe it necessary (she sought to demonstrate a ―learned helplessness‖ on account of Battered Women’s syndrome) Look at broad time frame and narrow time frame (majority) - was there an imminent threat?


17 The husband was asleep, so there was no imminent threat in this case C) Defense of Others 1) 2) 3) 4) ―Others‖-need not be in a special relationship Honest and reasonable threat of death/GBH (unlawful force) Common law- ―alter ego‖- stand in the shoes of the person you are defending; your right is no greater than their’s would be if they were acting in self-defense Modern view- more leeway- if you are acting in good faith, you are justified

People v. Kurr Fetal protection act of 1998- punishes an individual for harming or killing a fetus or embryo during an intentional assault or grossly negligent act against a pregnant woman Defense of others theory is available only if a person acts to prevent unlawful bodily harm against another Under MPC, ―others‖ does not include fetuses D) Defense of Property/Habitation People v. Ceballos D discovered pry marks on his garage door, so he set up a trap: if the garage door opened, a gun would fire. Two young boys broke in, and one was in the face by the bullet. Court held that D’s acts were not justified in defense of property. This felony is not enough to justify deadly force- did not create a fear of death or GBH; if D had been home, he would have been able to use discretion as to what the threat was, etc. E) Law Enforcement Defenses Tennessee v. Garner Neighbor called to report a burglary; police came to scene- saw the fleeing suspect and ordered him to ―halt‖; when he continued to run- officer shot and killed him. Ten dollars and a purse were found on the suspect. Court held that TN statute allowing use of deadly force on fleeing suspect was unconstitutional. ***Such force is not permissible unless the officer has reason to believe the suspect poses a significant threat of death or serious physical injury to the officer or others F) Necessity Common Law Elements 1) D has a choice of two evils (economic harm is often not enough) 2) D did not create the necessity him or herself 3) D does not have a legal alternative available 4) Clear and imminent 5) D chooses lesser evil (lesser evil is never death) -Consider life is worth more than property -To whom is the choice the lesser evil? Would TARP consider it the lesser evil?

18 MPC- Section 3.02 A principle of necessity, properly conceived, affords a general justification for conduct that would otherwise constitute an offense Limitations: 1) actor must actually believe that his conduct is necessary to avoid an evil 2) the necessity must arise from an attempt by the actor to avoid an evil or harm that is greater than the evil or harm sought to be avoided by the law defining the offense charged 3) the balancing of evils is an issue for determination at trial- not committed to the private judgment of the actor 4) general choices of evils defense cannot succeed if the issue of competing values has been foreclosed by a deliberate legislative choice 5) when the actor has made a proper choice of values, his belief in the necessity of his conduct will exculpate- unless the crime involved can be committed recklessly or negligently * Note: MPC does not have an express provision against homicide Defense is more broadly available than Common Law Nelson v. State D’s truck became stuck in a marshy area; he got a ride to a heavy equipment yard where he took a dump truck to try to pull his car out. Court held that a necessity defense was not applicable. Common Law evaluationChoices of two evils: leave his car in the marsh vs. steal a dump truck Did D create the necessity: probably not; it was an accident Did he have a legal alternative: yes- call AAA or highway patrol; wait for help to arrive Clear and imminent danger: D believed his truck was going to tip over; but it had been several hours and they slept in the truck- not clear and imminent The Queen v. Dudley and Stephens The crew of a ship were stranded and starving, and so two older crew members decided to kill and eat the young crew member. They were rescued a few days later. Court held that there was no necessity- the act was murder. Could argue that one death was the lesser evil over all our men dying; but they had no way of knowing when they were going to be rescued- it could have been hours after the homicide. G) Duress Common Law Elements 1) Immediate threat of death or GBH 2) Must be a well grounded fear that threat will be carried out 3) No reasonable opportunity for escape Did the person cause themselves to be in this situation? Is this the type of thing a reasonable person would fear? MPC 2.09- Duress

19 1) Threat of unlawful force 2) against any person 3) of the type that would cause a person in the situation of the D of reasonable firmness to yield 4) D did not recklessly put himself in the position *MPC has no anti-homicide provision United States v. Contento-Pachon D was asked to transport cocaine to the US, and he declined. D was threatened- the man told him he would kill his wife and children. D did not go to the police because he believed them to be corrupt. When he got to the US with the cocaine, he agreed to have his stomach x-rayed. Court held that the defense of duress could be invoked. Analysis: -Immediacy of threat: Drug lords knew where his family was located, and could kill them at any time -Well grounded fear that threat would be carried out: large amount of money involved; drug lords would be watching him throughout his trip/watching the family; he was explicitly told that his family would die -No reasonable opportunity to escape: Columbian police were corrupt- was afraid of turning drug lords in; could not move b/c he was being watched People v. Unger D was an inmate who was forced to engage in homosexual behavior; there was a death threat against him for telling prison officials, he escaped, and claimed he was intending to contact authorities as soon as he reached safety. Court held that D could assert necessity. Lovercamp decision—the defense of necessity need be submitted to the jury (factors to consider): 1) the prisoner is faced with a specific threat of death, forcible sexual attack or substantial bodily injury in the immediate future 2) no time for a complaint to the authorities or there is a history of futile complaints which make any result from such complaints illusory 3) there is no time or opportunity to resort to the courts 4) there is no evidence of force or violence used toward innocent persons in the escape 5) prisoner immediately reports to the proper authorities when he has attained a position of safety Note: D never informed the authorities and failed to report immediately after securing a position of safety; but the absence of one or more of the factors in Lovercamp would not necessarily negate assertion of defense of necessity

Necessity -Pressure on D arises from the forces of nature (not a bright line rule) -D is choosing between the lesser of two evils -Prison escapes do no fit neatly into either

Duress -Source of coercive power is from human beings -Generally requires an impending, imminent threat of GBH together with a demand that a person perform the specific criminal act for which

20 category, however, the necessity defense more he is eventually charged readily applies (see People v. Unger) -Coercing party is guilty of the crime -Unable to exercise free choice at all H) Intoxication 1) Voluntary- only a defense if the crime requires purpose, knowledge, or intent (majority rule) 2) Involuntary- complete defense (tricked, coerced, unaware, innocent mistake, pathological intoxication- small amount of alcohol has a large effect, overreactions to certain medications) 3) Minority rules: a) Voluntary intoxication is only a defense to 1st degree murder (knocks it down to 2nd degree) b) Voluntary intoxication is a defense to crimes requiring purpose, knowledge, intent, or Recklessness (more liberal) Commonwealth v. Graves D was on LSD and had consumed a quart of wine when he robbed a man. The man sustained injuries that led to his death. Court held that jury should be able to consider an intoxication defense- the question is whether or not the actor was capable of forming the requisite mental state of the crime committed. I) Insanity 1) Must be competent to stand trial; assist in own defense; consult with lawyer If D is not competent to stand trial- it is postponed or never takes place 2) Medication: under some circumstances court will compel medication, but not usually 3) When determining competency to stand trial- look to preponderance of evidencemore likely than not; in federal court- standard is clear and convincing (higher) 4) In some states, D must enter a plea of ―Not guilty by reasons of insanity‖; some states permit the jury to return a verdict of ―Guilty but mentally ill‖ 5) Insanity is an affirmative defense- D must persuade the fact finder 6) For involuntary commitment to a psychiatric facility, must prove mental illness and dangerousness 7) Sexual predators are usually found fully responsible for their actions 8) Purposes of criminal law: rehabilitation; deterrence; retribution ***These functions are not served when a mentally ill person is incarcerated 9) For Insanity (generally): a) Must show that D is suffering from some mental disease or defect Psychiatric testimony; past behaviors; temporary strains are not going to give you insanity defense b) Some relationship between the mental disease and the crime Insanity Tests


21 a) Right or Wrong test: whether D knew if his conduct was right or wrong (old test- 1500s) M’Naghten- disease of the mind- unable to know i) Nature and quality of his act; or ii) If he did know, he did not know what he was doing was right or wrong iii) Criticisms: all or nothing Irresistible Impulse or Control Test: Courts inquire into both the cognitive and volitional components of D’s behavior i) Criticisms: how do we decide if he couldn’t or just didn’t control the impulse; it is still all or nothing like the M’Naghten rule. Durham or Product Test: Act must be the product of mental disease or mental defect; jury can consider all relevant information i) Criticism: relies too much on expert testimony; takes decision away from the jury MPC Section 4.01: Relieves D of responsibility when: i) D lacked substantial capacity to appreciate the criminality/wrongfulness of his conduct; ii) D lacked substantial capacity to conform his conduct to the requirements of law iii) Note: different jurisdictions have adopted one of two standards: 1) Criminality=legal wrong 2) Wrongfulness=moral wrong Federal Insanity test: (pg. 625) i) Requires clear and convincing evidence ii) Unable to appreciate the nature and quality of the act, or the wrongfulness; must be a severe disease or defect (higher standard) iii) Appreciate is a greater understanding than simply knowledge






***Most common: M’Naghten supplemented by Irresistible Impulse; MPC (both versions); Federal test 4) Inchoate Offenses A) Attempt 1) Most statutes cover attempts to commit any felony or misdemeanor; a D cannot be convicted of both a completed offense and an attempt to commit it 2) All jurisdictions treat attempt as a lesser included offense of the completed crime 3) Primary purpose is not deterrence- it is providing a basis for law enforcement officers to intervene before an individual can complete an offense

22 4) MPC: Article 5- attempt, solicitation, and conspiracy; deals with conduct designed to culminate in the commission of an offense, but has failed or not yet achieved its culmination a) Bob wants to demolish a building, knows there are people inside, but does not want them to die Under MPC, attempted murder? Yes- if he believes the attempt is likely to occur, this is enough Actus Reus- same or lower standard: Preparation is not enough- there must be some appreciable fragment of the crime committed; it will be consummated unless interrupted by circumstances independent of the will of the attempter a) Evaluating Actus Reus (pg. 749-750 notes)  Physical proximity  Dangerous proximity (balancing- physical proximity and danger of the crime) ***  Indispensable element*  Probable Desistance  Abnormal step approach*  Unequivocality test  Model Penal Code substantial step*** o -Substantial step or OMMISSION toward culmination of the crime o -Substantial step must be corroborative of intent to commit the crime  Possession of materials,  At or near scene,  No lawful use for the materials- (When these three elements are met, D is guilty of attempt) b) c) Complete attempts- taken all of the steps, but the crime was not actually committed Incomplete attempts- stopped along the way


Commonwealth v. Peaslee D constructed and arranged combustibles in a building in such a way that they were ready to be lighted, so as to burn down the building and its contents. D offered to pay a man to carry out his plan, but he refused. Later D and the young man were driving toward the building, but when within a quarter mile the D said he had changed his mind and drove away. Court held the acts did not suffice for attempt. *Dangerous proximity- not sufficient *Physical proximity- he is a ¼ mile away If the court had applied the ―abnormal step‖ test- could be liable when he set up the combustibles

23 People v. Rizzo D planned to rob Charles Rao of a payroll valued at $1,200, which he was to carry from the bank. D and three accomplices rode in their car looking for Rao. The police began watching and following the men. As D jumped out of the car and ran into a building, they were all arrested. Rao had not been found and he was not present at the scene. Court held the acts did not suffice for attempt. Dangerous proximity test: because the victim was not present, D was not in dangerous proximity People v. Miller D, under the influence of alcohol and in the presence of others at the post office, threatened to kill Albert Jeans. That afternoon, while Constable Ginochio and Jeans were planting hops, D entered the hop field carrying a 22 caliber rifle. D walked in a direct line toward Ginochio; when he had gone about 100 yards he stopped and appeared to be loading his rifle. As soon as Jeans saw the D he fled. D continued toward Ginochio, who took the gun without resistance on the part of D. Court held there was not attempt. So long as the equivocal quality remains, no one can say with certainty what the intent of the D is State v. Reeves Two young girls brought rat poison to school to poison their teacher; Court held that it was for the jury to decide whether or not the girls’ acts were a ―substantial step‖ toward the commission of the offense (modified MPC- left to jury not attempt as a matter of law although they satisfied three elements- possession of materials, at or near the scene, for which there is no lawful use) 6) Mens Rea- higher standard: a) Intent to do the act b) Intent to commit the crime

People v. Gentry Did the trial court err in allowing four culpable mental states for the crime of attempt murder? Yes Court held that MR must be intent to kill- other mental states are not sufficient for attempted murder Bruce v. State Is attempted felony murder a crime? No A criminal attempt consists of a specific intent to commit the offense coupled with some overt act in furtherance of the intent which goes beyond mere preparation; b/c a conviction for felony murder requires no specific intent to kill, attempted felony murder is not a crime 7) Abandonment a) The abandonment must be complete, and it must be voluntary

24 Commonwealth v. McCloskey Larson, a Guard Supervisor heard an alarm go off that indicated someone was attempting an escape in the recreation area of the prison. A piece of barbed wire that had been cut, and a bag with civilian clothing were found. A check revealed that the bag belonged to appellant. Five hours later appellant voluntarily approached Larson, and explained to him that he was going to escape, but had changed his mind because he thought of his family. Court held the acts were not sufficient to constitute attempted prison breach. *** He abandoned the criminal offense voluntarily, thereby exonerating himself from criminal responsibility. B) Conspiracy Agreement to do something unlawful or something lawful in an unlawful manner 1) Scale of Criminal Activity: Solicitation + Agreement= Conspiracy—Attempt—Complete the act=Consider substantive crime CA Law Requires 2 or more persons for conspiracy (bilateral jurisdiction) Must conspire or agree to commit any crime Look to see if there has been an overt act committed by a party in furtherance Some JDs allow unilateral conspiracy (one person conspiring with undercover police officer) Dual intent: a) Intent to agree/conspire b) Intent to accomplish the object of the conspiracy The crime is complete upon formation of the agmt; it is not necessary to establish any overt act D may be convicted and punished for both the conspiracy and the substantive crime, however-Note under MPC Merger Rule- cannot be convicted of conspiracy and the substantive crime



Pinkerton v. Unites States Was participation in the conspiracy enough to sustain a conviction for the substantive offense if it was committed in furtherance of the conspiracy? Yes As long as the partnership in crime continues, the partners act for each other in carrying it forward- an overt act of one partner may be the act of all without any new agreement specifically directed to that act Pinkerton Rule: Once you have agreed- the acts of the others are imputed on you if they are pursuant to the conspiracy; must abandon the conspiracy explicitly;*** Broad application*** Krulewitch v United States

25 Can hearsay testimony from after the conspiracy and criminal offense took place be admitted? No Once a conspiracy is over, we stop hooking people in Hearsay is not reliable b/c it is testifying as to what someone else said; it is an out of court statement offered for the truth of the matter asserted Exceptions- if testimony of co-conspirator is repeated in court, this will be admissible although it is hearsay 4) Mens Rea

People v. Swain Ds killed a 15 year old boy in a drive by shooting. Their intent had been to retaliate for a car theft, and to steal the car of the thief. Jury found them guilty of conspiracy to commit 2nd degree murder. Court held this was improper- cannot have a conspiracy to commit a crime of ―implied malice‖; we are inferring their intent after the fact from their conduct, but we cannot do this for conspiracy- we need a higher MR People v. Lauria Three prostitutes were using Lauria’s telephone service presumably for business purposes; Lauria admitted to knowing some of his customers were prostitutes. Court set aside the indictment for conspiracy to commit prostitution. He had knowledge, but no intent to further the crime How to infer intent from knowledge? 1) Stake in the venture/financial interest- no- he was not getting any profits, etc. 2) Legitimate or lawful use for the service- yes- need answering services 3) Volume of business with the buyer is grossly disproportionate to any legitimate demand- yes- prostitutes received 500 calls per day 5) Actus Reus

Commonwealth v. Azim Azim was the driver of co-defendants James and Robinson. James and Robinson assaulted and robbed a man, and fled the scene in Azim’s car (he was driving). Court held D liable for conspiracy-D was associated with the alleged conspirators, he had knowledge of the commission of the crime, and he was present at the scene and participated by driving. Pinkerton rule- once we establish conspiracy, we can hook the parties for the substantive crime Factors to consider to infer conspiracy: 1) Relationship/association- friends/acquaintances riding in his car 2) Knowledge of circumstances/crime- saw robbery, waited until it was completely and then drove his friends 3) Presence- he was at the scene 4) Participation- drove the car, stopped for the robbery


Commonwealth v. Cook D and his brother were drinking and smoking marijuana at a housing project when they met the victim. The brothers talked with the victim then invited her to accompany them to a convenience store to buy cigarettes. While walking, the victim fell and D's brother jumped on the victim and raped her. Court held that there was not sufficient evidence to convict D of conspiracy to commit rape. Brother seemed to be acting spontaneously- he jumped on the girl when she tripped ***If there is evidence of spontaneity- this cuts against inference of conspiracy People v. Foster D approached another man and invited him to participate in a robbery. The man feigned interest as D detailed the plan, and contacted the police when D appeared to be ready to implement the plan. Court held that they could not convict D, as this was a bilateral JD for conspiracy (need two parties in agmt for conspiracy) 6) Defenses to Conspiracy a) Failure of prove- no intent to agree; no proof of agreement b) Abandonment- once you remove yourself, you are not responsible for future acts- but must communicate your withdrawal c) Bilateral JD, and there is only one person conspiring


Accomplice Liability Someone else has committed a crime, but b/c of what you have done to help them, you have committed the crime. For conspiracy, we are saying you are responsible for the crime, for accomplice liability, you are put in the shoes of the perpetrator Not a separate crime- it is a way to hook someone on for the actual offense 1) Mens Rea- Dual intent: a) Intent to aid b) Intent to further the offense Note: Spontaneous approval is not sufficient MR Actus Reus a) Solicitation, or b) Active assistance, or c) Encouraging the offense, or d) Omission if you have a duty to prevent Model Penal Code 2.06 (pg. 997) a) Purpose of promoting or facilitating the commission; just attempting to aid is enough to satisfy AR under MPC



State v. Hoselton

27 D was standing at the end of the barge when his friends began trying to break into a storage unit holding tools, grease guns, grease, and a battery charger. D went and sat in his friend’s car, did not help them place the items in the car, and never received any money for the stolen goods. D was charged as a principal in the first degree for breaking and entering with intent to commit larceny. Court held there was not enough evidence to prove that D acted as a lookout, and therefore should be convicted as a principal to the crime.


Offenses not requiring intent

Riley v. State D and Portalla opened fire on a crowd of people socializing, and two of them were injured. The evidence did not reveal which of them had fired the shots, however, the jury concluded that D was guilty of being an accomplice- guilty on two counts of first degree assault (recklessly causing serious bodily injury by means of a dangerous instrument) *** State must prove that the accomplice had whatever culpable mental state is required for the underlying offense; not necessarily ―intent‖ Sub-Rule: If the underlying crime requires recklessness- we need intent to aid and intent to further the acts that constitute the crime (minority rejects this rule- no accomplice liability attached to reckless crime) 5) Natural and probable consequences doctrine

State v. Linscott D went with friend to rob a man, but upon arrival, the friends shot and killed the robbery victim; Liability for a ―primary crime‖ is established by proof that the actor intended to promote or facilitate that crime; liability for any “secondary crime” that may have been committed by the principal is established by showing: 1) It was a Natural and probable consequence 2) Of the crime assisted Note- it doesn’t matter if intended consequence or unintended consequence 6) Actus Reus- secondary party solicited the offense, furnished an instrumentality used in the crime, or provided other active aid in the perpetration of the offense; but What happens when the party’s participation is slight or when their act is actually an omission?

State v. Vaillancourt A neighbor observed D and Burhoe standing together on O’Connor’s front porch, ringing the doorbell and Conversing with one another for about ten minutes. She then observed them walk around to the side of the house where Burhoe attempted to break into the basement window. The D stood by and watched. The neighbor notified the police who apprehended the crime. D was convicted of accomplice liability for burglary. Court held that mere presence at scene is not enough- need active assistance- encourages, facilitates, acts as lookout

28 7) Distinguishing Direct from Accomplice Liability There cannot be a secondary party in the absence of a principal in the first degree; but the secondary party may himself, on closer inspection, be the principal in the first degree

Bailey v. Commonwealth D and Murdock were in an argument in which they cursed and threatened each other repeatedly; each were intoxicated and Murdock was also legally blind. After a series of threats, D demanded Murdock come out on his porch with his handgun and wait for D. D then made anonymous phone calls to the police, reporting that Murdock was out on his porch waving a gun around. When the police arrived, Murdock shot at them, and they returned fire, killing him. Can D be convicted as a principal in the first degree without being present at the crime scene? Yes D is prosecuted as a principal in the first degree- set the chain of events in motion and used the officers as an innocent agent Note: an Innocent agent is an instrumentality of the agent who is the principal not the accomplice 5) Theft Offenses A. Larceny  Common Law Elements o MR – with intent to permanently deprive the owner of the property o AR – Trespassory taking o AR – And Carrying away o Without Consent o AC – Property in the possession of another o Bailees and Breaking Bulk US v. Mafnas D was employed by an armored car service which was hired by two banks to deliver bags of money. On three occasions D opened the bags and removed money. He was convicted of three counts of stealing money from the banks. D argued that common law larceny requires a trespassory taking of money from banks Bailee has the bulk- has rightful possession of the money (legal fictionbailee does not have legal possession) ―Breaking the bulk‖- taking money from the bag D was only given possession of the whole, but not possession of any part of the contents- does satisfy larceny despite the fact that the taking was not trespassory  Permanently does not literally mean that, but has come to include: o When D intends to sell the property back to its owner o When D intends to claim a reward for ―finding‖ the property

29 o When D intends to return the property to its owner for a refund (see Davis) People v. Davis D entered a Mervyn’s dep. Store with a shopping bag, took a shirt off of a display, and took it to the register, claiming he had bought it for a gift, wanted to return it, and did not have a receipt. Court held the crime was larceny although the intent may not have been to permanently deprive the store of the shirt Robbery  Common Law Elements o AR – taking the property o AR – from the victim’s person or presence o AR – by force, fear, violence, or intimidation o MR – within intent to permanently deprive o MR note: a claim of right will not negate intent if force or violence is used, but in some JDs, like CA, it can Embezzlement  Common Law Elements o A fraudulent o Conversion of or a misappropriation of o The property of another o That D already has physical possession of (under CL and many JDs, entrustment is also required) Rex v. Bazeley D was a bank teller who received a deposit from a customer; D credited the customer’s account, but placed a bank not in his pocket which he later used for himself D did not take possession from the bank owners – so it was not larceny – new crime: embezzlement If D had placed money in the bank drawer, and then stolen it – it would have been larceny; but the money was never in their possession Larceny by Trick  Common Law Elements o D obtains possession of o But not title to o Another’s property through fraud or trickery; fraud vitiates consent and takes the place of trespass False Pretenses  Common Law Elements o D takes title o And possession o Of the property of another o By knowingly false representations  A failure to disclose is not enough





30 An act that results in an implication of fact, coupled with nondisclosure of the truth, will be sufficient  A representation need not be oral – it can be conduct, such as proffering an ATM card About a material fact With intent to defraud Proving theft by false pretenses requires:  That D made a false pretense  The representation was made with intent to defraud the owner of the property, and  The owner was in fact defrauded in that he parted with his property in reliance upon the representation Reliance is not usually found  Where the complainant knew the representation was false or did not believe it to be true  Or, where even if he believed, he did not rely on it but rather investigated for himself or sought and relied on others  Or, where complainant parted with the money or property for reasons other than in reliance (false representation need not be the sole cause, but must be material influence) 

o o o


People v. Whight ATM card case. Court held D liable – the store was not relying on the ATM ―no answer‖ signal – they were primarily relying on the tendering of the card

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