Juries, Crime and Afirmative Defenses by Wittgenstein

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									          Today’s Lecture:




          Crimes and Defenses




Session                         Topic(s)


  5                              5
Lecture Organization:

     Class Announcements


     Ben Roethlisberger

     Crimes and Elements
     Affirmative Defenses
     Mental State & Its Defenses

      Piling On
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                 Class Announcements


Paper Deadlines
-- April 30th – 2 hard targets.




                                       Questions?
                  Ben Roethlisberger


The allegation
-- The nature of the allegation has come out; it was not the way
it was originally reported
-- The allegation is “rape,” not in the nature of “touching” or
“fondling.”
   • buying shots, getting the girl drunk
   • she is escorted by a body guard back to the bathroom
   • (appears to have gone of her own volition)
   • something then happened.
                 Ben Roethlisberger


The allegation particulars
       important
        • She of bruising and has come out; it was not the way
-- The naturehasthe allegation a laceration in her vaginal area
it was originally reported
        • There is a slight amount of male DNA material, but
        not enough “rape,”
-- The allegation isto test not in the nature of “touching” or
“fondling.”
        • She apparently had been incredibly intoxicated
        (press conference the girl drunk
    • buying shots, getting mentioned the other side could
        argue “blackout” or “brownout back to
    • she is escorted by a body guard levels”) the bathroom
       • She asked not to prosecute, which is strange (explain
   • (appears to have gone of her own volition)
       why)
   • something then happened.
       • DA suggested that Roethlisberger and the girl might
       already be close or discussing settlement
 Theory –I               Theory –2
                 Ben Roethlisberger
 Withdrawn               Incapacitated
  Consent
The allegation particulars
                           “consent”
       important
        • She of bruising and has come out; it was not the way
-- The naturehasthe allegation a laceration in her vaginal area
it was originally reported Modus Operandi?          caution
        • There                     of male DNA material, but
     Theory –3 is a slight amount the nature of “touching” or
-- The allegation isto test not in media is reporting a third
        not enough “rape,” -- the
“fondling.”
    An accident               allegation today that mirrors this
        • She apparently had been incredibly intoxicated
   of some sort? getting the girl drunk shots and then
    • buying shots,           one. (Buying
        (press conference mentioned the other side could
                              taking advantage?)
                          or “brownout back to
        argue “blackout” a body guard levels”) the bathroom
    • she is escorted by
       • She asked not to prosecute, which is strange (explain
   • (appears to have gone of her own volition)
       why)        Will discuss this later in the
   • something then happened.
                   course – (rape, consent, Kobe
       • DA suggested that Roethlisberger and the girl might
                   Bryant, Roethlisberger and
       already be close or discussing settlement
                   Tyson)
            Part I:
Crimes and Affirmative Defenses
               Crimes and Elements


Introduction
-- Crimes today are statutory
-- In the 1700s and 1800s, they could be judge-defined
(“common law crimes”).
-- there are two basic features or properties to crime:
   (a) what things you need to do to commit it (“the elements”)
   [its definition]; and
   (b) defenses (things that, if true, negate the crime)
              Hence, if you want to know the elements
              Crimes and Elements
         of any given crime, simply read the criminal statute

 Elements
-- Elements of a crime come in two types:
   A. the actus reas (the act)
   B. mens rea (mental state)
   As a general rule, if you read a criminal statute, it will tell
   you the actus reas and the mens rea.
   E.g., larceny –
   (1) taking and carrying away
                                         Actus reas
   (2) property of another
   (3) with intent to permanently deprive         Mens Rea
               Crimes and Elements


 Elements
-- Elements of a crime come in two types:
   A. the actus reas (the act)
   B. mens rea (mental state)
   As a general rule, if you read a criminal statute, it will tell
   you the actus reas and the mens rea.
   E.g., Burglary –
   (1) breaking and entering
                                         Actus reas
   (2) dwelling house of another
   (3) with intent to commit a crime inside       Mens Rea
              Crimes and Elements


 “basic” crimes
1. been around for a long while
2. originated with the common law
         Property Crimes

         Crimes against the Person

         Crimes by Mode of Operation

        Crimes Against the State
        “Combinatorial Crimes”
Property Crimes


  Real                     chattel
  Property                 property

Burglary
   (a) nighttime        Larceny
   (b) dwelling house      (a) grand
Robbery                    (b) petty
Arson                   Embezzlement
Trespass
Crimes Against the Person


                      death                kids
       Sex
                      and
                      injury           Kidnapping
Rape                                   Statutory Rape
Sexual Battery
                      Murder
                      Assault
                      Battery
                      Malicious Wounding
                      False Imprisonment
Crimes by Mode of Operation
                                 Devious
                                 or
  Planning                       “Skilled”
  or
  offering                    False Pretenses
                              Fraud
   Solicitation               Identity Theft (modern)
   Conspiracy                 Forgery
   Attempt                    Extortion
   RICO (modern)              Bribery
Crimes Against the State


    Prostitution
    Public Intox
    Disorderly Conduct
    Sodomy
    False Swearing
    Perjury
Combinatorial Crimes

  “Felony Murder”      Robbery
     (a) serious          (a) larceny
         felony
                          (b) assault or
     (b) death                battery


   “Felony committed
   with Firearm”
      (a) any felony
      (b) using a
          firearm
             Crimes and Elements


“modern” crimes

    Driving Crimes

       DUI
       Driving on a suspended license
       Vehicular Manslaughter
       DUI with injury or death
                Affirmative Defenses

-- There are two kinds of defenses that exist in criminal law
     Negation    Simply negates an element

                                                Anything that
     Affirmative Defenses      Excuses the crime E.G.,
                                               negates any of
                                             (1) I elements is a
                                            thesedidn’t intend to
-- for example, larceny –                        steal, only to
                                           “regular” defense. It
     (1) taking and carrying away                   borrow.
                                              is premised only
                                         Actus reasnegating
                                               upon
     (2) property of another                   (2) The property
                                                  elements.
                                              belongs to me. He
                                               Mens Rea
     (3) with intent to permanently deprive said I could have it.
                Affirmative Defenses

-- There are two kinds of defenses that exist in criminal law
     Negation    Simply negates an element

     Affirmative Defenses    Excuses the crime

    • Affirmative defenses are different
    • If you have one of these, you are ALLOWED to commit
    the crime
    • It’s like have a license or permission to commit the crime
    • You don’t have to negate anything
                  Affirmative Defenses


Affirmative Defenses
                       Non-deadly?
1. self defense
                          -- Reasonable belief
                          -- of imminent force
                          (first-aggressor rule)
                       Deadly?
                          -- reasonable belief
                          -- of imminent force
                          -- that may cause death/serious
                          bodily injury
                  Affirmative Defenses


Affirmative Defenses
                       Non-deadly?
1. self defense
                           -- Reasonable belief
2. defense of a dwelling
                           -- is necessary
                           -- to prevent unlawful entry/attack
                           upon dwelling
                       Deadly?
                           -- never allowed
                           (trick question on bar exam)
                  Affirmative Defenses


Affirmative Defenses
                           -- Reasonable belief
1. self defense
                           -- that force MUST be used
2. defense of a dwelling
                       -- to prevent interference with
3. defense of property property rights

                           -- the threat must be immediate
                           -- you must own or possess the
                           property
                           (deadly force never allowed.)
                  Affirmative Defenses


Affirmative Defenses
1. self defense
2. defense of a dwelling
3. defense of property     -- Reasonable belief
4. defense of others       -- that the person you assisted
                           -- had the legal right to defend
                           himself
                  Affirmative Defenses


Affirmative Defenses
1. self defense
2. defense of a dwelling
3. defense of property
4. defense of others       -- SERIOUS crime

5. prevention of a crime   -- can use reasonable force
                           (deadly allowed only if the crime
                           involves risk to human life)
        • Deadly force?
        Criminal law – Elements and Defenses
              Affirmative Defenses
            • Police Officer?
            (a) Reasonable Belief
 Affirmative Defenses
            (b)
1. self defense felon threatens death/serious bodily injury
           (c) dwelling
2. defense of ato officers or others
           (d) deadly
3. defense of property force necessary to prevent escape
            • others
4. defense ofPrivate Citizen?
            -- same, except:
5. prevention of a crime
                 felon felon
6. stopping a fleeing must be actually guilty of the crime
        • Non-deadly force?
            -- crime in fact committed
            -- reasonable grounds to believe the person did it.
                  Affirmative Defenses


 Affirmative Defenses
1. self defense
2. defense of a dwelling
3. defense of property
4. defense of others
5. prevention of a crime
6. stopping a fleeing felon
                              1. consent freely given
7. discipline
                              2. by a party of legal capacity
8. consent
                  Affirmative Defenses


Affirmative Defenses
                           1. Criminal design or intent
1. self defense
                         2. originated with law enforcement
2. defense of a dwelling officers
3. defense of property 3. the defendant was not
4. defense of others       predisposed to committing the crime
                           (key point!)
5. prevention of a crime
                          Examples --
6. stopping a fleeing felon
                             -- undercover drug sting
7. discipline
                             -- New Orleans prostitution
8. consent
                             -- child porn mailing
9. entrapment
       Part II:
Mental State Defenses
              Mental State & Its Defenses

-- As a general rule, crimes will require a mental state (mens
rea)
-- this is a degree of “mental fault” that must accompany the
crime in order for the person to be guilty
-- This is the most important part of the crime for criminal
defense lawyers:
    • Much harder to prosecute crimes that require a high level
    mental guilt/fault [explained in a moment]
    • Therefore, the most important defense opportunity may be
    the negation of mental state
-- let’s have a look …   Caveat: these are common law
                         rules (explain why)
           Mental State Defenses


• Will have a structure to them
• Will go from most stringent to
least stringent
                                          Mental State Defenses

        Specific Intent       • Toughest standard

                              Requires      Knowledge       AND
                              Purpose
• Need more than mere awareness of act(s) alone;
• Need evidence that the D acted purposely to cause the result

 Example: Burglary
                                         Hiding from someone?
 1. unauthorized entry
                                        Guy who came through
 2. into a dwelling
                                        my window
 3. with intent to commit a crime*
   *(can’t be trespass)     *theft, kidnapping, assault
                                          Mental State Defenses

        Specific Intent       • Toughest standard

                              Requires      Knowledge       AND
                              Purpose
• Need more than mere awareness of act(s) alone;
• Need evidence that the D acted purposely to cause the result
 Example: Larceny
 Example: Burglary
                                         Hiding from someone?
 1. unauthorized entry
                                        Guy who came through
 2. into a dwelling
                                        my window
 3. with intent to commit a crime*
   *(can’t be trespass)     *theft, kidnapping, assault
                                          Mental State Defenses

        Specific Intent       • Toughest standard

                              Requires      Knowledge       AND
                              Purpose
• Need more than mere awareness of act(s) alone;
• Need evidence that the D acted purposely to cause the result
 Example: Larceny
                                       My client & the suitcase
 1. taking/carrying away
 2. property of another*                 My recent vacation
 3. with intent to permanently
 deprive the owner
 *if above a certain value, grand larceny
                                          Mental State Defenses

        Specific Intent       • Toughest standard

                              Requires      Knowledge       AND
                              Purpose
• Need more than mere awareness of act(s) alone;
• Need evidence that the D acted purposely to cause the result
 Example: Larceny
 Example: First Degree Murder
                                       My client & the suitcase
 1. taking/carrying away
 2. property of another*                 My recent vacation
 3. with intent to permanently
 deprive the owner
 *if above a certain value, grand larceny
                                          Mental State Defenses

        Specific Intent       • Toughest standard

                              Requires      Knowledge       AND
                              Purpose
• Need more than mere awareness of act(s) alone;
• Need evidence that the D acted purposely to cause the result

 Example: First Degree Murder
 1. “Malice aforethought”
 (specific objective was trying to
 kill the person)
 (no accidental death)
                                          Mental State Defenses

        Specific Intent       • Toughest standard

                              Requires      Knowledge       AND
        Malice                Purpose
• Need more than mere awareness of act(s) alone;
• Need evidence that the D acted purposely to cause the result

 Example: First Degree Murder
 1. “Malice aforethought”
 (specific objective was trying to
 kill the person)
 (no accidental death)
                                Mental State Defenses

Specific Intent


Malice            • Second toughest standard
                  Requires a depraved indifference
                  to human life (“depraved heart
                  crime”).
                   Examples:
                   Terrorism (placing a bomb at the
                   Post Office to explode after
                   midnight)
                  Mental State Defenses

Specific Intent


Malice


Knowledge
                                 Mental State Defenses

Specific Intent


Malice


Knowledge         • Significantly weaker standard

                  Mere awareness of the behavior
         Examples:
         Someone slips cocaine into your suitcase at
         an airport. You are busted for possession
                                     Mental State Defenses

Specific Intent


Malice


Knowledge         • Significantly weaker standard

                  Mere awareness of the behavior
         Example: Voluntary Manslaughter
         “Heat of passion killing”
         (police officer catching someone else in bed
         with spouse after work)
                  Mental State Defenses

Specific Intent


 Malice


Knowledge


Recklessness
                                 Mental State Defenses

Specific Intent


 Malice      Example:
             California dog case
Knowledge (Two lawyers owned a pit bull, and it
          killed a child next door)

Recklessness       • Extremely low standard

                  Requires something MORE than
                  ordinary   negligence.     “Gross
                  negligence” “criminal negligence”
                   Mental State Defenses

Specific Intent


 Malice


Knowledge


Recklessness


Strict Liability
                                   Mental State Defenses

-- As a general rule, the Constitution does not allow strict
 Specific Intent
liability crimes (all crimes must have mens rea)
-- But the exception is for traffic crimes and “regulatory
  Malice
crimes”
   (e.g., speeding & food inspection laws)
  -- it does
Knowledge not matter if you did not know the speed or
   even if you should not have known it
 Lambert v. California   Case involving a Question:
                                          curfew
Recklessness
                                     Why? Is this crimes
   -- Court held: violated Due Process. Non-pettyfair?
   must have some kind of fault requirement

Strict Liability    Requires no           criminal   fault
                    whatsoever!!!
                                   Mental State Defenses

Specific Intent problem
Interesting recent
-- legislatures began drafting license crimes in the 80s and
90s that did not specify a mental state
 Malice
-- Example
   • driving on a suspended license
                                      Answer:
Knowledge story in West Virginia] Answer:
  [explain the
 Spiked-drink theory?
                                         knowledge. “I
                            It can’tconsistent with the
                            To be beQuestion:
                              Constitution, to know I
                            was too drunk it must be
                                 What is
Recklessness should be a good some kindmens rea for
  -- in theory,                defense to DUI
                                           (would be
                              was drunk” of criminal
                                        for DUI?
                                      absurd)
                                     negligence

Strict Liability    Requires no         criminal    fault
                    whatsoever!!!
                               Mental State Defenses

                   We want to consider an extremely
Specific Intent
                   important defense that may negate
                   the mental state:
 Malice


Knowledge


Recklessness


Strict Liability
                                Mental State Defenses
                   We want to consider an extremely
Specific Intent
                   important defense that may negate
                   the mental state:
 Malice              Reasonable Mistake of Fact:

                   “I thought the gun wasn’t loaded”

Knowledge          “I thought I had permission to enter
                   the house”

Recklessness        “I thought the powder he gave me
                    was pregnenolone, not cocaine

Strict Liability    “I thought the license wasn’t
                    suspended”
                                Mental State Defenses
                   We want to consider an extremely
Specific Intent
                   important defense that may negate
                   the mental state:
 Malice              Reasonable Mistake of Fact:

                   “I thought the gun wasn’t loaded”
                                    Question:
Knowledge          “I thought I had permission to enter
                   the house”What do you think the
                           mental state requirement is
Recklessness                 for the crime he gave
                    “I thought the powder of rape? me
                    was pregnenolone, not cocaine

Strict Liability    “I thought the license wasn’t
                    suspended”
                            Mental State Defenses

Specific Intent


 Malice                Actus reas:
                        1. having sex

Knowledge               2. without permission
                       Mens rea?

Recklessness            • “he/she consented”
                               Negates the act

Strict Liability        • “I THOUGHT he/she
                        consented”
Example: Kobe Bryant   Negates the mental state
               The Politics of Defining Crime


 “Piling on”
-- In order to get around the mental state requirement,
legislatures have found an interesting little maneuver
   (a) specify as LOW of a level of fault as possible
   (b) turn one criminal act into multiple criminal acts
-- Example: drugs laws
             The Politics of Defining Crime


 “Piling on”
         -- The “regular” crime
-- In order to get around the mental state requirement,
            • possession & interesting with intent to distribute
legislatures have found anpossession little maneuver
   (a) specify as LOW of a level of fault as possible
       -- Then you have the “add ons:”
             commission of into multiple criminal
   (b) turn•one criminal acta crime with a firearm acts
-- Example: drugs laws of a drug felony with a beeper or
          • commission
          electronic communication device
           • possessing paraphernalia
           • selling within 1,000 feet of a school
             The Politics of Defining Crime


 “Piling on”
         -- The “regular” crime
-- In order to get around the mental state requirement,
            • possession & interesting with intent to distribute
legislatures have found anpossession little maneuver
       -- Then you have the “addoffelony into 7
                     -- Turning fault
   (a) specify as LOW of a level 1ons:” as possible
             commission of into multiple criminal
   (b) turn•one criminal acta crime with a firearm acts
                     -- Most of them have a low-
-- Example: drugs laws of ofdrug felony with a beeper or
                     level
          • commission a fault
           electronic communication device
           • possessing paraphernalia
           • selling within 1,000 feet of a school
             The Politics of Defining Crime


 “Piling on”
         -- The “regular” crimeinclude:
                   around not
-- In order to get -- Why the mental state requirement,
            • possession & interesting with intent to than
legislatures have found anpossession little maneuver
                 • Planning a crime for more distribute
                seven days?
   (a) specify as LOW of a level of fault as possible
       -- Then you have the “add ons:”
             commission ofthe multiple criminalof the
                • Being into mastermind
   (b) turn•one criminal acta crime with a firearm acts
                planning?
-- Example: drugs laws of a drug felony with a beeper or
          • commission
          electronic communication device a school
                • Planning 1,000 feet near
           • possessing paraphernalia to a church
                  • Planning too close
           • selling within 1,000 feet of a school
                • Using a computer to help you
                commit a crime

								
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