Cohen Criminal Fall 2014

8/10/2019 Cohen Criminal Fall 2014

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I.

INTRODUCTION

A.Sources of Criminal Law1)

Role of common-law(a)

Most states have repealed common law crimes by codifying them into statutes(i)

Fair noticeunreasonable to expect an ordinary citizen to know the common law(b)

Many jurisdictions use common law to interpret statutes; it fills in the gaps of

statutory law(i)

People v. Kevorkian: Michigans legislature defined murder generally, but usedcommon law for a more precise definitions of terms

2)Statutes(a)

Primary source of criminal law(b)

MPC (Model Penal Code)(i)

Restatements of the law in a comprehensive way(ii)

Most American jurisdictions use the MPC as a basis for their laws during penalcode revisions

(c)Penal Codes: Divided into two parts(i)

General: statutes that deal with general principles that apply to many areas of law

(i)

Definitions(ii)Procedures(iii)Defenses(iv)A few general crimes (Attempt, Conspiracy, etc.)

(ii)Special/Specific

(i)Individual crimes (Murder, Arson, etc.)(d)

Statutory Interpretation(i)

Plain meaninglook to the text and apply common sense interpretation to thewords(ii)

Legislative intentlook to the history surrounding the passage of the statute(iii)

Precedentlook to the interpretation of the statute in other courts

(iv)

Policylook to the policy rationale of the legislatureB.Limitations of Criminal Law

1)Principle of Legality: The U.S. Constitution requires that statutes be clear and that they

provide sufficient notice of what will be punished; limit on the legislature an the government(a)

Fair Notice: society must define punishable conduct in advance(i)

Pure Notice Problem: when the law is unambiguous, but the defendant is unlikely toknow it exists

(i)Lambert case: Defendant prosecuted for passive conduct (not registering in CA),

when she had no knowledge (and no probability of knowledge) that she wassupposed to register

(ii)Retroactive repeal (limit on courts): generally, courts must apply the law at the time of

the criminal conduct(i)Keeler case: Court decided not to overstep the statutory wording of human being

(with regard to a fetus) because of the concept of fair notice; not convicted of

murder because common law (at the time) defined human being as one born

alive(ii)

Rogers v. Tennessee: Retroactively repealed the year-and-a-day rule; potential

violation of fair notice, but in this case the defendant did not expect the victim to

live beyond the incident; reason for the rule was for causation issues


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(iii)Ex Post Facto: (limit on legislature): A legislature may not retroactively criminalize

conduct, increase a sentence, or change procedure in a way that makes it easier to convict;

a defendant cannot be punished for a crime that was not a statutory offense at the time hecommitted the act; refers to ALL persons already convicted of a crime

(i)Bill of Attainder: prevents the legislature from passing retroactive laws increasing

sanctions for a particular person, or easily identifiable group

(iv)

Rule of Lenity: Courts should resolve ambiguity in statutes in favor of thedefendant and against the prosecution(i)Reasoning: Defendants should receive the benefit of the doubt when laws fail

to provide adequate precision1. Limitation: there must be grievous ambiguity; cannot be applied when

the ambiguous reading is implausible of Congressional intent, or there isno ambiguity in the first place

(ii)Alternate interpretation (by some jurisdictions): Fair import rule:

1. An even-handed approach; encourages statutory interpretation whichfurthers the general purposes of the statute

(b)Vagueness: a crime definition must be reasonably precise (what is forbidden and what

are the sanctions) so defendants are not forced to guess at its meaning(i)

Reasoning: Vagueness may invalidate criminal law for either of two reasons:(i)It may fail to provide the kind of notice that will enable ordinary people to

understand what conduct it prohibits

(ii)It may authorize and even encourage arbitrary and discriminatory enforcement

1. Lanzetta case: in reference to a statute defining gang activity; phrases likeany person not engaged in any lawful occupation or known to be a

member to general and subjective; left police to decide the scope of thestatute

2. Morales case: Loitering statute that contained ambiguous language andallowed police vast discretion declared unconstitutionally vague

a.

Dissent believed that what the statute prohibited (an order to disperse)was not vague and provides adequate notice; also that police mustinevitably exercise discretion

(ii)If a defendant wins a vagueness challenge, the statute is struck (unrelated to actual

guilt)

II.BURDEN OF PROOF and BEYOND A REASONABLE DOUBT

A.Elements of a crime1)Standard of proof: beyond a reasonable doubt

(a)Why? Due Process requirement of the Constitution

2)Burden of production: on the government

3)

Burden of Persuasion: on the governmentB.Defenses (no Constitutional rule; states are free to handle as they wish)

1)Standard of proof: decided by the state(a)

Beyond a reasonable doubt (rare for a defense)(b)

Preponderance of evidence (51% or more)(c)

Clear and convincing evidence (less than beyond, and more than preponderance)2)

Burden of production: on the defendant (some evidence; prima facie case)3)Burden of persuasion: state may place on either party (on the defendant to prove thedefense exists, or on the state to prove the defense does NOT exist)


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III.ELEMENTS OF CRIMESA.In General

1)Specificity: Constitution mandates that crimes be stated with some specificity (conceptsof fair notice and vagueness)2)Elements: each element is a policy decision

(a)

Certain aspects are part of EVERY crime but are not considered elements: identity;date; location3)Burden of Proof:

(a)Prosecution has burden of proving each element beyond a reasonable doubt

(b)5thamendment: The defendants knowledge cannot be used as proof of any element

(c)Effects the prosecutions choice of which charges to bring to trial

4)Categories:(a)

Actus reus: physical part of the crime; defines what offender must do(i)

Must be voluntary(ii)

Applies to an omission to act when one has a duty to do so (ie failure to pay taxes)(b)

Circumstances: details that fine-tune the reach of the statute

(c)

Harm/Result: when a statute proscribes a particular lost, harm, or risk of harm (ie, forhomicide someone must die)(d)

Causation: Link between actus reus and harm(e)

Mens Rea: mental element(i)

Most significant and most difficult to prove(ii)

Proof of moral blameworthiness(iii)

Intentionally, knowingly, recklessly, with criminal negligenceB.Actus Reus

1)Wrongful actconduct necessary to commit a crime2)

Versions of Actus Reus:(a)

Voluntary Act

(i)

Rule: The conduct of a prohibited act must be voluntary in order for criminalliability to result

(i)State v. Sowry: Defendants act of bringing drugs into prison while under arrestwas not a voluntary act; thus the actus reus element is not satisfied; the lawdoes not punish a guilty mind alone

(ii)Involuntary (non-criminal) acts: reflex, convulsion, movement during

unconsciousness or sleep, conduct under hypnosis, bodily movement not a product ofactors effort or determination

(b)Omission: failure to act when there is a duty to act(i)

Rule: Failure to act may constitute a breach of legal duty when:(i)Where one stands in a certain relationship to another

(ii)

Where a statute imposes a duty to help another(iii)Where one has assumed a contractual duty(iv)Where one voluntarily has assumed the care of another

1. State v. Miranda: Boyfriend held liable for failure to protect the child,because he assumed a familial relationship with the child, he assumed thecommon-law duty to protect the childa. In dissent, issues of fair notice

(c)Possession: someone is guilty of possession (actus reus) ONLY IF it is done

knowinglyadds a mens rea element to the actus reus


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(i)Reasoning: if there is no element of awareness, the actor cannot be morally

blameworthy(d)

Status Crimes:(i)

Rule: Cannot punish someone for a status; must punish for an act

(i)Robinson v. California: Defendant convicted for being addicted to drugs; invalidbecause imprisoning someone for drug addiction is considered cruel and unusual

punishment(ii)Rule: a defense claiming an unconstitutional arrest on the basis of status must prove the

defendants conduct was involuntary or uncontrollable

(i)Powell v. Texas: defendant arrested for public intoxication; not considered a status

conviction, because he was convicted for the act of being drunk, not the status ofbeing an alcoholic

1. Hypo: there may be a defense for someone who is homeless and also an

alcoholic, thus making his act of being drunk in public involuntary and

uncontrollable

C.Circumstances1)Purpose: to fine-tune criminal activity

2)

Can refer to a particular victim, location, certain time of day, etc.D.Harm1)

Many criminal statutes require the offender to have caused a particular harm2)

Define different levels or severities of harm

3)Some criminal statutes depend on the risk of harm, rather than actual harm itself

E.Causation1)

Relationship between actus reus and harm

2)A policy-based limit on how far criminal liability extends

3)But-for causationthe harm would not have happened but for your action; all jurisdiction

require this kind of causation4)Under the MPC (and in most jurisdictions) but-for causation not enough; requires proximate

causation(a)An independent intervening cause breaks the chain of causation

(b)

A dependent intervening cause is sufficiently related to the defendants conduct to hold the

defendant responsible

5)Rule: If defendants actions are directly and substantially connected to the harm, and the harm

is foreseeable, then still liable(a)

McCloskey case: Defendant provided alcohol to teenagers, who later drove drunk and were

killed; court found that it was a forseeable event, and was directly and substantially linked to

the accident, thus defendant was liable

F.Mens Rea1)General: Intent to perform the physical act2)

Specific: Intent to perform the physical act, and to product the result (requires intent)3)

4 levels of moral blameworthiness:(a)

Purposely/Intentionally: Intended to do it, and intended to cause a particular result;

subjective(i)

I wanted it to happen(b)

Knowingly: Awareness that it is practically certain that your conduct will cause a certain

result; intent is irrelevant; subjective(i)

I was aware that is was practically certain to happen


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(c)Recklessly: Conscious disregard of risk; requires a gross deviation from the normal

standards of care; subjective and objective(i)

I knew the risk, but I did it anyway(d)

Criminal Negligence: Failure to perceive a substantial risk; the failure to perceived must be

a gross deviation from the normal standards of care; objective(i)

I should have known the risk

4)

Downward inclusiveness: If you act intentionally, you also act knowingly, recklessly, andnegligently

5)The mens rea element in a statute applies to all other elements, unless clearly indicated

otherwise6)If a statute has no mens rea, then by default recklessly is added, unless clearly indicated

otherwise7)

Higher MPC States (Intentionally and Knowingly)(a)

Intentionally: general focus is the why(i)

Harm: act was done to intentionally cause the harm; motive is used as circumstantial

evidence of your purpose(ii)

Conduct: The act was done in order to do the conduct(iii)

Circumstance: aware of the circumstance, believed it, or hoped it would be there(b)

Knowingly: one does not have to be completelycertain(i)

Harm: practically certain the harm will result(ii)

Conduct: aware that your conduct will have a certain result(iii)

Circumstance: aware of the circumstance

(i)United States v. Lynch: Defendant claims he did not know of the crime, and did notknow the artifact removed was an archaeological resource; court finds that no mens

rea is necessary for the first claim, but necessary for the second

8)Lesser MPC States (Recklessness and Criminal Negligence)(a)

Recklessness:(i)

Awareness of risk, and conscious disregard(ii)

Risk is a gross deviation from standard of care of a reasonable person(b)

Criminal Negligence:(i)

Should have been aware of the risk(ii)

Risk is a gross deviation from standard of care of a reasonable person

(i)People v. Hall: To prove reckless manslaughter, prosecution challenged to prove

that the skier:1. Consciously disregardedinferred from the particular facts of the case,

including the persons knowledge and expertise

2. A substantiala risk may be substantial even if the chance that harm will occuris well below 50% if the magnitude of harm is potentially great

3. And unjustifiable risk that he woulddetermined by weighing the nature of

purpose of the actors conduct against the risk created by that conduct

4.

Cause the death of anotheractor must risk causing death to another person(can be general, does not have to be directed to a particular person)

9)Transferred Intent: If you intend to harm one person, but in fact harm another, the intent is

transferred to the injured party (there is also transferred recklessness and criminal negligence)10)

Deliberate Ignorance: Deliberately avoiding knowledge in order to avoid criminal liability(a)

Rule (Jewell instruction): Jury may find knowledge from deliberate ignorance; the

deliberate attempt not to find out what you possess implies that you at least know there is

something illegal about the possession, but proof of deliberate ignorance is required


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(i)Sanchez-Robles case: Defendant claimed she was not aware that the van she was

driving contained drugs, and further claimed her ignorance on the fact that she did not

know the smell of marijuanacourt allowed, because there was no proof of deliberateignorance

G.Strict Liability Crimes1)

No required proof of mens rea

2)

Still controversy as to whether mens rea should be read into strict liability crimes(a)People v. Hoskay: Court held that public indecency was a strict liability crime because

there was no mens rea in the statute (however, when the conduct necessarily involves a mentalelement, the court should read a mens rea into the statute, ie for possession)

H.Interrelationship of Elements1)

All elements in the statute must be present at the time of the act2)Connection between mens rea and actus reus must be linked by causation (not temporally

coexistent)

3)Connection between mens rea and harmthe harm the occurs must be the intent of the mental

state (except in cases of transferred intent)4)Circumstances and Harm must occur at the same time

(a)

Jackson v. State: Defendant forgot pre-trial conference, and then missed the trial datebecause he was unaware there would be one; defense is that his culpable mental state(conscious choice not to appear) did not exist simultaneously with his physical act of failing to

appear(i)

Court found that the elements need not be coexistent as long as they are causallyconnected

IV.HOMICIDE

A.Life1)All homicides require a live human being who is killed by another human being2)

Fetus issue:

(a)

Traditionally, fetus must be born alive to constitute a homicide victim(b)Some jurisdictions have expanded this definition and now punish the killing of a fetus(i)

However, only so long as it does not interfere with a womans constitutional rightto have an abortion

B.Death1)Two tests:

(a)Traditional definition: irreversible cessation of circulatory and respiratory functions

(b)Brain death standard: irreversible cessation of all functions of the entire brain

2)If you satisfy either test, you qualify as dead under homicide law

C.Pennsylvania Model/Traditional Model (Generally)1)

Purpose: limit the use of the death penalty

2)

Closely followed in many jurisdictions3)

Homicide divided into 4 degrees:(a)

2 murdersmalice aforethought(i)

1stdegree and 2nddegree(b)

2 manslaughtersno malice aforethought(i)

Voluntary and involuntary4)

Malice Aforethoughtpresent in 4 categories(a)

Intent to killacting for the purpose of taking human life


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(i)(Some jurisdictions accept knowledge that death was substantially certain to

result)(b)

Intent to do serious bodily injury (must be serious!)(c)

During commission of a felony (malice aforethought of the felony is carried over to themurder itself)(d)

Depraved heart (recklessness; extreme indifference to human life)

5)

Traditional Homicide Categories (Pennsylvania)(a)

First Degree Murder2 possibilities(i)

Killing that is willful (constitutes the malice aforethought), deliberate and premeditated(expanded under 1stdegree murder)(ii)

Killing that occurs during the commission of a listed felony (constitutes maliceaforethought) (expanded under felony murder)

(b)Second Degree Murderkilling with malice aforethought(i)

Intentional killing (not deliberate and premeditated)(ii)

Killing with intent to do serious bodily injury(iii)

Killing during the commission of a non-listed felony (expanded under felonymurder)

(iv)

Killing with a depraved heart (expanded under 2ndDepraved Heart)(c)

Voluntary Manslaughterdoes the prosecution ever voluntarily choose this choosethis level of homicide? I know it is not a defense as such, but seems to incorporate adefense within it? Does the burden fall on the defendant to prove the provocation, etc?

(i)Killing in the heat of passion

(d)Involuntary Manslaughter2 possibilities(i)

Killing through criminally negligent conduct(ii)

Killing during the commission of a misdemeanor (misdemeanor-manslaughterrule)

D.Felony Murder Rule1)For 1stdegree murder, the felony must be one of the listed (most serious) felonies

(a)

Often preferable for prosecutor, because only requires proof of the mens rea for thepredicate felony (rather than proof of behavior that was willful, deliberate, andpremeditated)

(i)Causation limitation is the only limitation that applies to listedfelony-murder rule

2)2nddegree murder: during the commission of a non-listed felony(a)

Limitations (only applicable to 2nddegree felony murder!)(i)

Merger Doctrine: predicate felony must be independent of the act that kills thevictim; predicate felony must have an independent felonious purpose other thankilling or seriously injuring the victim

(i)Why? Because it would have unjust effects, such as making every person guiltyof manslaughter automatically guilty of 2nddegree murder, which would

eliminate manslaughter as a viable crime(ii)Both manslaughters are excluded as predicate felonies(iii)Assault and battery are often excluded as predicate felonies

1. Why? These occur in almost every homicide, including those that wouldqualify as voluntary and involuntary manslaughter

(iv)Kilburn case: Defendant convicted of felony-murder for a homicide resultingfrom an armed assault; merger doctrine did not apply because there were twoassaultsthe first assault when the gunman pushed into the home andordered the victim around; second assault when he took the victim in the


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bedroom and shot him in the head; court held that the second assault mergedwith the homicide (same felonious purpose), but the first assault did not(independent felonious purpose)

(ii)Dangerous Felonies: felony-murder limited to felonies involving a special danger

to human life(i)Why? To avoid over-criminalization; a certain jurisdiction may classify a

relatively minor crime (in terms of moral culpability) as a felony(ii)2 Approaches:1. Inherently dangerous crimescourts look to the elementsof the crime in

the abstract to determine chances of loss of life or serious bodily injurya. Problem: some felonies may not appear dangerous in the abstract, but

may be deadly in a particular situation2. Dangerous Act approachfelonies that occur while the defendant is doing

an act dangerous to human life; courts look at the circumstances of thecase, and the acts of the defendant while committing the felonya. Problem: the presence of a dead body will sway a finding that a crime

was inherently dangerous

(iii)

State v. Anderson: Defendant unintentionally shot victim while in thecommission of the following felonies: felon in possession of a firearm, andpossession of a stolen firearm1. In the inherently dangerous approach, no felony-murder because the

abstract possession is not inherently dangerous (he could be by himself;the gun could be unloaded)

2. In the dangerous act approach, may be felony-murder because thepossession and the circumstance of pointing the gun at the victims head

was inherently dangerousa. However, discharging the shotgun was not in furtherance of the

predicate felony (see Causation below)

(iii)

Causation: death must occur because of and during the commission (or attemptedcommission) of the felonyoften extended to the commission and the immediateflight after the predicate felony

(i)Co-felons:1. Felons are liable for killings committed by their co-felon2. Felons are liable for co-felons accidental death3. Killing by a non-felon:

a. Agency theorya felon is responsible only for crimes committed by aco-felon (thus, killings by a police officer or unrelated third party do notmake felon liable for those deaths under felony-murder)

b. Proximate Cause theorya felon is responsible for deaths that are

reasonably foreseeable consequences of the felonyi. Idea is that a cone of violence is set in motion by the predicate

felonyE.First Degree Murder: Willful, Deliberate, and Premeditated Killing

1)Willful: Intent to kill2)

Deliberate: Cool state of mind; capable of reflecting; opposite of impulsive3)Premeditate: Advance planning

(a)Some courts hold that premeditation may occur in an instant


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4)Role of Motive: Not an element, but may be circumstantial evidence of (or lack of) intent,

premeditation, and deliberationF.Depraved Heart (Second Degree Murder)

1)Depraved Heart=recklessness; extreme indifference to human life2)

Often unintentional, but still constitutes malice aforethought3)Connected to involuntary manslaughter on a continuum of negligence; if not enough for

depraved heart, may be enough for involuntary manslaughter charge4)

Examples: Russian Roulette; shooting a gun into a crowd of pedestrians; dropping aheavy rock onto a highway, etc.

G.Voluntary Manslaughter1)Often intentional, but not enough to constitute malice aforethought

(a)Why? Recognizes human frailties and includes an element of comparative fault

(b)Reduces the gravity of the killing, but it is not a defense or excuse

2)Elements:(a)

Must kill in the heat of passion or under extreme emotional disturbance (in theory,

this negates the presence of malice aforethought)(b)

Must be legally sufficient provocation:

(i)

Physical assault and spousal adultery have typically been found sufficient(ii)

Mere words are insufficient, unless they are particularly inflammatory(iii)

Defendant cannot goad victim into provocation(i)If provocation is not legally sufficient for voluntary manslaughter,in some

cases can be used to argue Murder 2 because of the absence of a cool mind

for deliberation element of Murder 1(c)

Reasonable person test: the defendant must be provoked, and the circumstances mustbe such that a reasonable person would have been provoked(d)

Insufficient Cooling Time: killing must be spontaneous and rash(i)

Some courts demand immediate reaction, others allow for brooding timemostoften instruction is allowed and it is left to the jury

H.

Involuntary Manslaughter1)

Criminal Negligence(a)

Often involves the failure to perceive a serious risk(i)

Some jurisdictions raise the bar and demand a subjective awareness of risk, andignoring the riskhowever this seems more akin to depraved heart murder

(b)Conduct should be a significant departure from the conduct of a reasonable person

2)Misdemeanor Manslaughter(a)

A killing in the commission of a misdemeanor or unlawful act (the unlawful act itselfconstitutes the recklessness/criminal negligence required)

(i)Many jurisdictions reject this doctrine

I.MPC Model3 categories: Murder, Manslaughter, and Negligent Homicide

1)

Murder:(a)

Causing death purposely or knowingly (no malice; no premeditation-deliberation)(b)

Causing death recklessly with extreme indifference to human life (higher degree thandepraved heart)

(i)Evidence of felony creates a presumption of recklessness with extreme

indifferencemay still have to prove that defendant acted recklessly duringcommission of the felony

2)Manslaughter:(a)

Homicide committed recklessly (possibly comparable to depraved heart) or,


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(b)Homicide committed under extreme mental or emotional disturbance for which

there is reasonable explanation or excuse (similar to voluntary manslaughter)(i)

No provocation requirement3)Negligent Homicide:

(a)Homicide committed with criminal negligence (similar to involuntary manslaughter)(i)

MPC rejects the misdemeanor-manslaughter approach

4)

Vehicular Homicide(a)

Operating a motor vehicle with gross negligence or recklessness causing death(i)

Drunk driving the most common scenario

V.ASSAULTA.Overview

1)Crime against a person, by injuring or frightening them with physical contact2)

In many jurisdictions assault (fear crime) and battery (offensive touching/physical

contact) are combined into the one crime of Assault(a)

For instance, Assault in New York involves physical injury; the fear crime is calledmenacing

B.

Assault1)2 Types: Attempted Battery and Frightening

(a) Attempted batterydefendant failed in an intentional effort to inflict bodily injury(i)

Requires an intent to do physical harm (not merely frighten)(ii)

Unlike other attempt crimes, the actor must come close to actually inflicting harm(ie, swing and a miss)(iii)

Focus on defendants actions (victims awareness not necessary)(b)

Frighteningdefendant intentionally causes someone to be reasonably frightened ofsuffering immediate bodily harm (sometimes fear of future harm will qualify, ie aconditional threat)

(i)Requires an intent to cause fright

(i)

Negligence and recklessness are insufficient(ii)

Requires the victim to suffer from actual fright(i)Victim held to reasonable person standard with normal sensibilities

C.Battery1)Physical contact without consent

(a)Contact may involve various degrees of harm (reflected in degree and sentencing)

serious bodily injury, to bodily injury, to offensive touching2)All jurisdictions apply battery to intentionalharm

(a)Transferred intent applies

3)Some jurisdictions extend battery to reckless and criminally negligent injuries

4)A few jurisdictions extend battery to harm caused by (during the commission of) unlawful

actsD.Modern Combined Offense (Assault)

1)Combines attempted battery, frightening facets of assault, and the causing injuryingredient of battery (more significant harm is needed than traditional battery; offensivetouching will not do)2)

MPC defines to crimes under Assault:(a)

Simple Assault:(i)

Purposely, knowingly, or recklessly causing bodily injury(i)Negligently causing bodily injury by means of a deadly weapon


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(ii)

Attempting by physical menace to put another in fear of imminent serious bodily

injury(b)

Aggravated Assault(i)

Purposely, knowingly, or recklessly causing seriousbodily injury, undercircumstances manifesting extreme indifference to human life(ii)

Attempting to cause serious bodily injury

(iii)

Attempting to cause bodily injury with a deadly weaponE.Aggravating factors of Assault and Battery1)Gravity of harm2)

Grave intent (usually during the commission of a serious felony)3)Method the crime is carried out

(a)Ie, with a deadly weapon

4)Category of victims(a)

Ie, children, police officer, etc.F.Defenses

1)Consent: one may consent to some assaults, but the consent must be voluntary andknowledgeable (sports activities, surgery)

2)

Parental/Teach privilege: parents and guardians may use reasonable force in discipliningtheir children

G.Related Crimes1)

Reckless Endangerment: when someone recklessly (at times negligently) creates a risk ofharm (death or serious bodily injury)

VI.

PROPERTY CRIMESA.Overview

1)Traditional theft law applies to property lawB.Relationships of a person to property:

1)Custody: when you acquire property for a very limited purpose and for limited time

(a)

Ie, a person trying on clothing in a store2)

Possession: Actual / Constructive control over property, with the right to exclude othersfrom it

(a)Ie, renting a car

3)Ownership (Title): Total rights in property; permitted to use as desired(a)

Most property does not have a title to it, so it is not necessary to establish ownership(i)

Ie, you own your wallet (no title)4)Abandoned property: Owner has relinquished all rights to property

(a)Owner must intentionally give it up

C.Traditional Approach1)Larceny: obtain possession of property through theft

(a)

Elements:(i)

A Trespassorywithout consent(ii)

Takingandobtaining actual control or dominion of the item(iii)

Carrying Away ofasportation; in most jurisdictions, even the slightestmovement will suffice(iv)

Personal PropertyNot real property (crops, structures, wild animals); notservices(v)

OfAnother Persontaking from someone elsespossession(not ownership)(vi)

With Intent to permanently deprive2 mens rea:


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(i)Intentional deprivation of property from the possessor(ii)The intent to deprive had to be permanent

1. Permanent can be a substantial amount of time, or for sufficient time todeprive property of its value

(iii)A mistake as to a claim of right to property can be a defense, in that there isno intent to deprive another person of their right of possession (if actor

believes HE has the right to it)(iv)Also, when a person takes property temporarily (borrowing something) andthen decides to keep it, they do not satisfy the necessary intent because theintent needs to be present at the time of the trespassory takingwould this beembezzlement?1. Since a successful thief technically possesses the property, then if the

rightful owner steals it back (satisfying the above elements) is he notcommitting larceny?

(b)Ex. Defendant takes a coat off a dummy, and attempts to walk away but cannot b/c a

string is attached to the dummy; insufficient asportation2)Larceny by Trick: obtain possession of property through deceit

(a)

No tresspassory element; rather obtaining consent and possession through trickery same mens rea as larceny?

(i)King v. Pear: Man expresses interest in buying a horse, rides the horse with

owners consent, and the rides away3)False Pretenses: obtain title of property through deceit; although the owner intends tocovey ownership to another person, that intent was instigated by fraud

(a)Elements:(i)

Intentional misrepresentation about apresentor apastfact (not future)(ii)

The fact must be in factnot true(iii)

The misrepresentation must be material to the transaction; almost a version ofcausation

(iv)

Mens rea (2 components):(i)Knowledge that the fact is false(ii)Intent to defraud

1. Intent usually inferred from the knowing misstatement or omission,because if one uses a false statement to obtain title it is reasonable to inferthat it was made for that purpose

(b)Ex. Defendant switching price tags on an item, and then buying it at false price;

securing title and possession by false pretenses4)

Embezzlement: lawfully (with a clean mind) obtaining possession of property, thenwrongfully converting it to ones own interesteven if its obtained with a dirty mind, stillneed embezzlement because it is in the embezzlerspossession (cant be larceny) and it

wasnt obtained by deceit (cant be larceny by trick)right? Or, is taking it with a dirty mind= deceit necessary for larceny by trick

(a) Fraudulent Conversion and Fraudulent Breach of Trust are essentially the same

crimes(b)

Victim of embezzlement entrusts the property to the defendant(c)

There must be a fraudulent conversion of the property by the person with otherwiselawful possession

(i)The conversion must be a serious interference with owners property rights


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(d)Mens Rea: specific intent crime; intent to fraudulently convert property for personal

use (as opposed to larceny, which is intent to permanently deprive)(i)

Valid defense is mistake as to ownership or scope of entrustment (like larceny)because the mens rea would not be present

D.Modern Consolidated Approach (MPC)1)Generic theft offense that consolidates the historically separate versions of property crime

(larceny, embezzlement, etc)2)

Example: NY 155.05Consolidated Theft Statute(a)

Elements:(i)

Wrongfully (without consent, by threat, or by deception)(ii)

Takes/obtains/withholds (no more asportation)(iii)

Property (no distinction between title, possession or custody)(iv)

Of Another(v)

With intent to deprive or appropriate (no more permanently; doesnt matter whenevil intent is acquired)(vi)

From the owner (defined as the person who has a right to possession)E.Receiving Stolen Property

1)

Why a separate crime?punish the people who make thefts financially worthwhile byproviding a market for stolen goods2)Receivingwhen the 3rdparty (no contact with victim) obtains possession

(a)Many jurisdictions have added receiving or concealing, to cover actors who find out

that property is stolen at a later point3)

Stolen Propertyacquired by means of larceny or robbery, and in some instancesembezzlement and false pretenses4)Mens Rea (2 components):

(a)Intent to deprive the owner of property

(b)Knowledge that the property is stolen (or belief that it is stolen)(i)

Often involves circumstantial evidence: paying a low price; faulty record-keeping;

history of similar transactions; etc.5)

Example: NY 165.40 Criminal Possession of Stolen PropertyF.Theft of Servicesseparate from the theft statute (165.15)G.Joyridingseparate from the theft statute (165.05 Unauthorized use of a vehicle)

1)Gets rid of the intent to deprive requirement

H.Forgeryoften covered by False Pretenses statutes

VII.THEFTISH CRIMES, SOMETIMES VIOLENTA.Robbery

1)Most serious of all theft crimes

2)Elements of larceny +2:

(a)

Taking must be from the person or presence of the victim(i)

Proximity requirement is reasoning behind classifying robbery as such a seriouscrime because it increases the likelihood of harm to the victim(ii)

Person: on victims body, or within immediate physical control(iii)

Presence: actual and constructive presence; ie, from the victims home while

victim is at home(b)

Theft must occur by force or threat of immediate force (to victim or to 3rdparty)(i)

Traditionally, the force (or threat) had to be before or at the time of the taking


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(i)State v. Holmes: defendant asks to inspect the diamonds, and once he receivesthem he pulls a gun and forces victim into the basement so as to steal thediamonds; not guilty of robbery because he acquired the property withoutforce, only using it afterward

(ii)

Now, the MPC and many jurisdictions extend robbery to in the course of taking,

or to retain possession

(i)

Pope v. Netherland: Defendant kills after stealing victims purse; still convictedof felony-murder (using robbery) since the force was used in the samecriminal episode

3)Between Robbery and Theft(a)

Purse-snatching: theft of a purse from a person (more serious than theft because itsfrom the person, but less serious than robbery because of minimal force)(b)

Larceny from person: pickpockets (same reasoning as above)(c)

Carjacking: Robbery of a car; requires violence or threat of violence(i)

Can be either permanent or temporary intent4)Example: NY 160.00 Robbery

(a)Robbery is forcible stealing. A person forcibly steals property and commits robbery

when, in the course of committing a larceny, he uses or threatens the immediate use ofphysical force upon another person

B.Extortion1)

Two elements:(a)

Intent to obtain property of another(i)

In some jurisdictions, it can be the intent to cause someone to do something he isnot obligated to do

(b)Threat of present (overlaps with robbery) or future harm to person, property or

reputation of another (some statutes eliminate physical harm, limiting extortion toproperty or reputation)

(i)Threat must be wrongful

(i)

Legitimate threats do not count (do such and such or Ill sue; make this right,or Ill reveal your behavior to the press, etc.)1. United States v. Jackson: Jackson demanded $40 million from Bill Cosby by

threatening to reveal damaging information to the press; threat wasconsidered wrongful in 2 ways:a. Threats to injure a persons reputation are inherently wrongfulb. Threats to injure a persons reputation when there is no claim of right

(ie, entitled to the $) is inherently wrongfulC.Burglary

1)Traditional approach: Breaking and entering a dwelling house of another at night with

the intent to commit a felony

2)

Modern approach:(a)

Many jurisdictions eliminated breakingentering or remaining inside suffices(b)

If its a dwelling, its an aggravated form of burglary(i)

There are lesser degrees of burglary for unlawfully entering a non-dwelling(c)

Many jurisdictions eliminated night(i)

Some make it an aggravated factor(d)

Many jurisdictions changed intent to commit a felony to intent to commit a crime

(felony or misdemeanor)


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(i)For example: It is a burglary if all other elements are satisfied and the criminal was

intending to commit larceny; if the criminal commitslarceny, they are considered 2separate crimes, with separate sentencing

3)Example: NY 140.20, 25, 30 Burglary(a)

3rd Degree: basic, fundamental statute; adds concept of unlawfully remaining(i)

No breaking; no night

(b)

2nd

Degree:(i)

armed; physical injury; threat of physical injury; OR(ii)

building is a dwelling(c)

1stDegree:(i)

Armed; causing physical injury; displaying a weapon, etc.4)

Criminal Trespass: Going onto someone elses property without permission(a)

Mens rea: person must knowthat they do not have permission

VIII.PREPARATORY CRIMESA.The process (or preparation) of committing an object crime

1)Allows police to intervene before an object crime is carried out

2)

Punishes for the same moral culpability as the object crime3)Punishment is different because of the differing results (ie, the defendants do not succeedin committing the crime)

B.3 Main Preparatory Crimes1)Attempt: defendant makes an effort toward committing an object crime2)

Solicitation: defendant attempts to enlist someone else to commit a crime3)Conspiracy: group criminality; defendant agrees with another person (or more) tocommit a crime4)(Assault of attempted battery, and burglary are also types of preparatory crimes)

C.Attempt1)Rationale: punishes the risk of harm, rather than actual harm; protects society for people

who intend to injure it2)

Merger: A person cannot be convicted for both the object crime and attempt to committhe object crime3)

Actus reus: sufficient act in furtherance of the object crime; requires an assessment ofhow far a person has gone toward committing an object crime (determined by the jury)

(a)

Beyond mere preparationThere is a line that separates mere preparationconduct from perpetration conductpreparation stage does not satisfy the actus reus;defendant must engage in conduct that constitutes perpetration(b)

Tests for actus reus:(i)

Dangerous proximity test: whether the defendant comes close to completion ofthe object crime; focus on physical proximity

(i)

Looks at what remains to be done(ii)

Substantial step test (MPC; most common): whether a substantial step has beentaken that strongly corroborates the intent to commit the crime; the step must helpestablish the mens rea (criminal purpose)

(i)Looks at what the actor has already done1. United States v. Williamson: Attempted battery case; defendant placed two

knives in his pocket, looked for the victim with intent to hurt him, butceased his search when he did not find himthe court found that he had


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not taken a substantial step because there was no physical proximity

(arguable) and no intervention from 3rdparties was needed(c)

(Solicitation and conspiracy usually occur before the attempt, but not necessarily)4)Mens rea:

(a)Intent to commit the object crime (no attempted recklessness or negligence)(i)

Ie, for attempted robbery there must be intent to take property by force

(b)

Intent to engage in perpetrating steps (knowledge that the steps are in furtherance ofthe object crime)(c)

Many jurisdictions also require the same mens rea as the object crime(i)

For instance, for attempted first degree murder, govt. would have to prove intent tokill (for attempt), and intent to commit a willful, deliberate, and premeditated killing(for first degree murder)

(d)

Mens rea is often inferred by the actus reus

5)Potential Defenses:(a)

Impossibility(i)

Legal Impossibility: Defendant makes efforts to do something that is not a crime(i)True: There would be no crime, even if the object of the crime had been

fully accomplished1. Affirmative defense2. Actor thinks he is committing a crime, but the legislature has not made it a

crime3. Example: carrying aspirin from Canada to the U.S., thinking it was a crime

(ii)Hybrid: Defendant has an illegal goal, but cannot accomplish the crimebecause of a mistake about legal status1. According to MPC, not a defensecrime is looked at as if the attendant

circumstances were as he believes them to be2. Actor is mistaken about a legal status (mix of factual and true legal

impossibility)

3.

Example: bribing someone the actor believes to be a juror; receivingunstolen property believing it to be stolen

(ii)Factual Impossibility

(i)Not a defense(ii)Actor misperceives the facts

1. One must look at the facts as the criminal believes them to be (like hybrid)(iii)Example: picking an empty pocket(iv)Example: undercover agent posing as a child on the internet to catch sexual

predators(iii)

Inherent possibility(i)Valid defense

(ii)

Akin to factual impossibility, except the defendants incompetence is soapparent that there is no attempt

(iii)Example: voo-doo doll(b)

Renunciation(i)

Generally accepted defense, if all elements are satisfied(ii)

Involves a person who is guilty of attempt, but then changes his mind andretreats(iii)

Elements(i)The change of mind must be:


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1. Complete (a total decision not to commit the crime)a. Does not apply to someone waiting for a better time to commit the

crime2. Voluntary

a. Does not apply to a defendant who is afraid of getting caught(ii)The object crime must not occur (if a person fully renounces a crime but it still

occurs, there is no defense)D.Solicitation1)Rationaleto discourage people from trying to involve others in a crime2)

Actus reus (broadly defined)(a)

Solicits, requests, commands or otherwise attempt to cause another person to commita crime

(i)Crime is complete upon communication, as long as there is the mens rea

(regardless of the actions of the solicited person)(b)

Under MPC, communication does not have to reach intended recipient (why?theevil intent is there); in some jurisdictions it must reach the intended recipient (why?the risk of harm is absent)

(i)

Some of these latter jurisdictions will allow an attempted solicitation(c)

In some jurisdictions, words are enough; in other jurisdictions, they require evidencethat corroborates the solicitation itself and the defendants intent that it be acted on

3)Mens rea:(a)

Intent to cause another person to engage in criminal conduct4)

In many jurisdictions, there are different degrees of solicitation based on the type of crimebeing solicited5)Merger: by statute, solicitation merges with conspiracy (cannot be convicted of both)

(a)Why?because conspiracies start with solicitation

(b)If merger occurs, every actor is equally liable, regardless of who initiated solicitation

6)Defenses:

(a)

Certain impossibilities (solicitor cannot be the victim, ie statutory rape)(b)

Renunciation (same requirements as above)E.Conspiracy

1)Generally(a)

Theory: Group criminality is more dangerous than individual criminality; moralblameworthiness is attached to the deliberation(b)

Independent of the object crime (can be convicted of both conspiracy and the objectcrime)

2)Elements:(a)

Plurality (circumstance): two or more people(i)

Some jurisdictions say an undercover agent qualifies as a co-conspirator, because

the evil mind (moral culpability) is present in the conspirators belief that hesconspiring (Unilateral approach, MPC)(ii)

Other jurisdictions say an undercover agent does not qualify as a co-conspirator(bilateral approach)

(b)Actus reus:(i)

Agreement (express or implied) to commit a crime(i)Usually proven by circumstantial evidence; jury question

(ii)Overt act: any act by one conspirator in furtherance of the conspiracy


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(i)Most jurisdiction require this (allows prosecution if the act is not substantialenough to constitute attempt)

(ii)Overt act need not be criminal(c)

Mens Rea:(i)

Intent to enter into an agreement(ii)

Knowledge of the common criminal objective of the agreement

(d)

Mens Rea in Supplier Cases: Intent topromotethe commission of a crime(i)

Must have the intent to participate or promote the crime; knowledge of

illegality is NOT enough(ii)

Not a clear line between knowledge and intent to promote (i)Often circumstantial evidence is used (repeated transactions, inordinate

profits, assistance in concealment, etc.)(iii)

Lauria case: Defendant provided telephone service used by a prostitution ring;provider had knowledge of the illegal activities, but was not part of the conspiracybecause he did not have intent to promote(iv)

Falcone: Sugar supplier knew the buyer was making moonshine, but was not partof the conspiracy

(v)

United States v. Lawrence: defendant agreed to rent his trailer to meth producersfor $1,000 a day; changed his mind and never received the money; court held that hedid not have the intent to promote the distribution of meth

(i)Important details (for the court)1. Defendant did not follow through with the agreement or transaction (ie,

never received money)2. Defendant only negotiated for one payment, not a stream of rentals

(ii)More appropriate offense would be Criminal Facilitation: Must knowinglyprovide the means for another to commit a crime

3)Limitations:(a)

Whartons Rule: If by definition a crime can only be committed by at least two people,

then if only two people commit that crime, conspiracy does not apply (ie, adultery)(b)

Protected class of victims: the victimof a crime cannot be convicted for conspiracyto commit the crime (ie, and underaged participant in sexual relations would not becharged with conspiracy to commit statutory rape)

4)Defenses:(a)

Renunciation (statutory defense):(i)

Completely eliminates criminal liability for conspiracywhy? Because it providesan incentive to prevent the object crime from occurring(ii)

Renunciation must be complete and voluntary(iii)

Defendant must prevent the commission of the object crime(b)

Withdrawal (not a statutory defense):

(i)

Does not eliminate liability for conspiracy; responsible for the conspiracy and allcrimes prior to the withdrawal(ii)

Defendant must notify police or co-conspirators of the withdrawal (BUT, does nothave to prevent the commission of the crime(iii)

An effective withdrawal eliminates liability for crimes committed after thewithdrawal (ie, Pinkerton would no longer apply)

5)Scope of Liability


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(a)Pinkerton Rule: Every conspirator is guilty of all reasonably foreseeable crimes

committed by other conspirators during and in furtherance of the conspiracy (MPCrejects Pinkerton)

(i)Dramatically extends criminal liability to participants who do not have the mens

rea of the substantive offense(i)Why? To deter collective criminal agreements

(b)

For an agreement, both parties must have awareness of the agreement(i)

Knowledge of co-conspirators identities not necessary; general understanding ofthe nature of the conspiracy (ie, big drug distribution chain) is enough

(c)Only way to avoid liability through Pinkerton is withdrawal

6)MPC (Conspiracy)(a)

Actus Reus:(i)

Agreement is necessary (no overt act requirement for first or second degreefelony)

(b)Mens Rea:(i)

Person must agree with the purpose of promoting or facilitating the object

offense (highest mens rea levelpurposeful)

(i)

No Pinkerton b/c requires mens rea to be present(ii)

Knowledge of members is necessary, but knowledge of identities is not(c)

Unilateral approach: undercover agents count as co-conspirators for the purpose ofplurality

(i)Why? To facilitate sting operations

IX.

ACCOMPLICE LIABILITY

A.Theory of liability(not a crime):1)A person is criminally liable for a crime if they provide some assistance in the commissionof the offense by the primary violator, and act with the requisite mens rea for thecommission of the target offense

B.Common law distinctions:

1)

First degree principal:(a)

Perpetrator of the object crime(b)

Physically or constructively present(c)

Person who uses an innocent instrumentality to commit a crime2)Second degree principal:

(a)Provided assistance to the first degree principle in committing the crime

(b)Actually or constructively present

(c)Responsible for the object crime

3)Accessory before the fact(a)

Counseled, advised, directed, or aided the commission of the crime(b)

Responsible for the object crime

4)

Accessory after the fact: provided aid after the offense; assisting criminals escape or hide(a)

Purposely assisting a felon to escape, after the commission of a crime(b)

Less culpability; lacks the mens rea for the object crime, but does have the intent tohelp a criminal escape apprehension (obstruction of justice crime)

C.Modern approach:1)

Jurisdictions have consolidated the first 3 categories2)Some jurisdictions hold accomplices liable for any crime they are a party to, and any crimethat is a natural and probable consequence of that crime (a cousin of Pinkerton)


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3)Other jurisdictions reject natural and probable consequence, and only hold accomplice

liable for the object crime they are trying to accomplish(a)

Medinacase: Defendant aiding in the commission of a drug trafficking offense heldliable for a firearm charge; court found that she needed knowledge of the firearm, andsome sort of facilitation of carrying the firearm (driving the car was sufficient)

D.An aider and abettor can be convicted after the named principal is acquitted

1)

Standefer case: allows a different jury to come to a different conclusionE.MPC: A party is liable for a completed crime if:1)Actus Reus: Solicits, aids, or agrees or attempts to aid another in the commission of

a crime(a)

No agreement necessary; encouragement may suffice; perpetrator need not be awareof the assistance(b)

Solicitation: while some jurisdictions would only indict for solicitation, under theMPC, a solicitor may also be properly labeled an accomplice

2)Mens Rea: with thepurposeof promoting or facilitating the commission of the crime(a)

Accomplice liability extends to reckless or negligent crimes(b)

No natural and probable consequences doctrine

3)

Some jurisdictions require actual aid; in those circumstances agreeing or attempting toaid may not be enough

F.Obstruction of Justice Crimes1)

Accessory after the fact (MPC = Hindering)(a)

Obstruction of justice crime(b)

Must have knowledge and purpose2)Some jurisdictions have a family-member exception3)Compounding

(a)Taking money to not report a crime

(b)Exception: if you are receiving due compensation for the crime (victim of robbery

demanding the return of $)

4)

Misprision: Failure to report a crime, or hiding evidenceG.Corporate Criminality

1)A corporation can be convicted of a crime for:(a)

An omission to do something its legally bound to do

(b)The commission of the offense was authorized/tolerated etc. by the board of directors

(c)The commission of minor crimes performed by an agent acting on behalf of the

association(d)

Defense: a high managerial agent took due diligence to prevent the crime (allows thecorporation to be isolated, while individual actors can be personally liable)

X.DEFENSES

A.Overview

1)

Every defense is policy-based, to reduce moral blameworthiness in certain contexts2)Statutorily based (common law defenses sometimesapply)

B.Policy Bases:1)

Relative innocence: government may give a defense to the actor who is less morallyculpable

(a)Ie, a bar fight, usually the one who is arrested won the fight

2)Life over property: Generally, you may not use deadly force to protect property

3)Encourage law enforcement: Many defenses enable law enforcement to do their jobs; apolice officer can use reasonable force to make an arrest


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4)

Basic concepts of responsibility: General notions for who is responsible for what theydo

(a)Infants, insane people, under duress, etc. = not responsible

C.Types:1)

Failure of proof: not a true defense; refers to the prosecutions failure to prove theelements of the crime; can be offered by the defendant to help make prosecutions proof fail

(a)

Ie, alibi, intoxication, diminished capacity, mistake of fact2)

Justification: I committed the elements of the offense, but what I did wasnt wrong(a)

Ie, self-defense, defense of others, defense of property, law enforcementdefenses

3)Excuse: I committed the elements of the offense, but I am not responsible for my actions(a)

Ie, insanity, duress, entrapment, mistake of law4)Special defense: applies to specific crimes

(a)Ie, renunciation for attempt/conspiracy

5)Partial defense: reduces (but does not erase) criminal liability6)Extrinsic defense: nothing to do with moral blameworthiness

(a)Ie, Statute of limitations; diplomatic immunity

D.

Kinds of Defenses1)Alibi

(a)Type: Failure of proof

(b)Disproves the first element of every crimeidentity: that the crime was committed by

the defendant charged(c)

Notice rule: Defendant must give pre-trial notice if alibi is going to be offered as adefense

2)Mistake of Fact(a)

Type: Failure of proof

(b)A valid defense when it negates the mens rea of the crime(i)

E.g., I thought it was my overcoat when I took it (did not intend to deprive

another)3)

Diminished Capacity(a)

Type: Failure of proofor Excuse (less than insanity)(b)

An impaired mental condition (short of insanity) caused by intoxication, trauma ordisease, which negates the mens rea of the crime(c)

Partialdefense: may lower the level of criminal responsibility (but not erase it likeinsanity)(d)

Applicable when the mental disease effects different aspects of the defendants mental

processes (mens rea element of crimes)(i)

E.g., can act intentionally but cannot deliberate or premeditate

(e)Advance notice and mental evaluation requirement (like insanity)

4)

Intoxication(a)


(b)Intoxication is a defense if it negatives the mens rea of a crime (can even argue that is

negatives the actus reus because the act is not voluntary)

(i)Limit: cannot use intoxication to negate the subjective awareness part of

recklessness; if youre to drunk to be aware of a risk, you may not offer evidence of

that fact(ii)

Limit: nevera defense for drunk driving(c)

Involuntary intoxication: when you become intoxicated through no fault of your own


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(i)

Can be used to satisfy the mental disease or defect of insanity

5)Infancy(a)


(b)Common law: Rule of 7s(i)

Under 7: incapable of forming mens rea(ii)

7-13: rebuttable presumption of incapacity to form mens rea

(iii)

14+: rebuttable presumption of capacity to form mens rea(c)

Modern jurisdictions have juvenile courts, which focus on rehabilitation(i)

Infancy is not a valid defense in juvenile courts (since they were designed to handleminors)

(d)Some jurisdictions ay Murder 1 is always in adult court

6)Self-defense:(a)

Type: Justification; Complete

(b)Why? It is appropriate for people to defend themselves when they are attacked, or

when they reasonably believe they are being attacked(i)

Problems arise with unreasonable/irrational people(c)

Self-defense is situational and rapidly changes as the incident escalates; often

difficult to assess reasonableness(d)

Elements:(i)

A person is authorized to use a reasonable amount of forceto protect himself(i)Objective standard applies to the defenders use of force

(ii)When there is a reasonable and actual beliefthat force is necessary

(i)Objective standard for reasonable belief(ii)Subjective standard for actual belief

(iii)To protect against the imminentuse

(iv)Of unlawfulforce (against the self-defender)(i)However, cannot resist arrest even if arrest is unlawful

(e)Deadly force:

(i)

Deadly force can be used against deadly force (reasonable standard)(f)

Retreat rule: In some circumstances you should retreat rather than take human life(i)

Policy: you should not take human life if you dont have to

(ii)Exception: you are not required to retreat from your home

(g)

People v. Goetz: question whether reasonable has a subjective or objective standard;

MPC uses subjective reasonableness, which has been rejected by most jurisdictions(i)

To avoid the problems encountered with unreasonable/irrational people(ii)

Reasonableness can also be considered in light of the circumstances or situation,but still must be how a reasonable person would act under those circumstances

(h)Subjective belief: Even under the subjective belief model, if that belief is mistaken and

recklessly or negligently formed (and the person is charged with a reckless or negligent

mens rea crime) then self-defense is not applicable(i)

Imperfect self-defense: Can serve to reduce the grade of an offense (e.g., from murderto voluntary manslaughter), if some but not all of the self-defense elements are present

(i)Can arise from an unreasonable belief of imminent threat, or an unreasonable

amount of force used in response to a threat7)

Defense of third persons:(a)

Type: Justification

(b)Why? Designed to encourage people to defend others

(c)Cases are always fact-specific


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(d)3 Approaches:(i)

Stand in shoes:

(i)Most traditional(ii)I may do whatever the person Im rescuing could do; if you make an erroneous

judgment, you could be in trouble1.

If you hit a police officer making a lawful arrest, believing that they were

assaulting the person is no defense under this approach(ii)

Reasonable Belief

(i)Most prevalent today (same as self-defense)(ii)May use a reasonable amount of force if you reasonably believe that force is

necessary; if you make an erroneous but reasonablejudgment, there is adefense

(iii)Subjective (MPC)

(i)You have a defense if you believe its necessary to use that amount of force torescue another person1. Provides the most encouragement to the potential rescuer

8)Defense of Property

(a)

Type: Justification(b)

More limited because property is less valuable than human life(i)

You may notuse deadly force to protect property(i)Exception: protecting your home allows for use of deadly force

1. Exception to exception: trap-guns cannot be used to protect your home;must be able to exercise discretion to use deadly force

(c)General rule: Reasonableness

(d)MPC: Subjective approach; justifiable if actor believes such force is immediately

necessary9)

Law enforcement defense(a)

Type: Justification

(b)

Why? Allowing law enforcement to do their jobsto arrest, or prevent an escape(c)

Common law: officer could use deadly force to stop a fleeing felon (no reasonablenessstandard)(d)

General rule: Officer may use reasonableforce to carry out duties or prevent anescape

(i)

Tennessee v. Garner: Deadly force is permissible if it is reasonable under thecircumstances (looked at from the perspective of a reasonable officer)

(i)Circumstances usually limited to criminals who pose a threat of death orserious injury (upon escape) to the officer or to the public

(ii)Courts take into account that officers are often forced to make split-seconddecisions

(e)

There is no longer a resisting arrest defense, even if the arrest is unlawful(i)

Why? To prevent citizens from being harmed(ii)

Exception: a citizen may resist arrest if the arrest is effectuated with unreasonableforce

10)Crime Prevention defense(a)

Type: Justification

(b)Both law enforcement and civilians have a defense to use force to stop crime

(c)Use of deadly force varies across jurisdictions

(d)Often used conjunctively with self-defense, and defense of third-parties


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11)Public Duty:(a)

Type: Justification

(b)A person with a public duty is permitted to carry it out in a reasonable manner

(c)Controversial in the area of military(i)

There is a defense if the military person is executing an order by a superior, anddoes not know it to be unlawful

12)

Discipline (Based on special relationships)(a)

Law gives a defense to people in certain relationships to use a reasonable amount offorce in that relationship (parents/children; teachers/students)

13)Necessity and Duress (Choice of Evils Defenses)(a)

A person must make a choice between a crime or some other evil, and in somecircumstances, public policy says the crime is okay

(i)Fact-sensitive; always a jury question

(ii)Defenses do not apply to homicide (however, killing one person to preserve ten?)

(b)Necessity: source of the compulsion is not human (typically nature)(i)

Type: Justification

(i)I did the right thing by choosing the lesser of two evils

(ii)

Must be a clear and imminent danger(i)Leno case: Defendant exchanged clean needles to prevent the spread of AIDS;

danger not imminent, so no defense(iii)

Standard: reasonable person(iv)

MPC(i)Standard: Conduct the actor believes to be necessary (subjective)

1. However, many jurisdictions apply the reasonable person standard to limit

the defense(ii)No immediacy requirement(iii)Can be used in homicide cases (unlike common law)

(v)Prison escapes: prisoner is required to report to authorities once safety is reached

(otherwise no defense)(vi)

Limitations:(i)Defendant must cause a lesser evil than the harm avoided(ii)Defense is limited (or unavailable) if defendant creates the perilous situation

(even if done recklessly or negligently)(c)

Duress: Conduct induced by human coercion(i)

Type: Excuse

(i)I did something wrong, but Im not responsible because I was forcedto do it(ii)

Common law elements:(i)Immediatethreat of (Immediacy)(ii)Deathor Serious bodily injury(Severity)

(iii)

With a well-grounded fear(Objectively justified)(iv)And no reasonable opportunity to escape (No escape)(v)Sometimes, submission to proper authorities when safety is attained (Prompt

surrender)(iii)

MPC: Defense is allowed when there is(i)Use of, or threat to use, unlawfulforce(ii)Against his person, or another(iii)That a person of reasonable firmness in his situation(objective standard)(iv)Would have made the same choice


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(v)Can be used in homicide (unlike common law)(iv)

Limitation:(i)Defense is limited (or unavailable) if defendant creates the perilous situation

(even if done recklessly or negligently)14)

Entrapment(a)

Type: Excuse

(b)

Rationale: prevents the government from using vast superior resources to encourageinnocent people to be criminals(i)

But must find a balance so that the government (police) can do their jobs(c)

2 Approaches:(i)

Subjective (prevailing): Focuses on the defendants predisposition(i)Govt. may afford the opportunityfor a person to commit a crime as long as

the criminal is predisposed to commit it

(ii)When defendant raises the entrapment defense, this opens the door for thegovernment to introduce evidence of prior criminal activity, characterevidence etc. do determine criminal predisposition

(ii)Objective (MPC): Focuses on the governments conduct

(i)

Defense arises when the government creates a substantial risk of persuading agenerally law-abiding person to commit a crime (doesnt matter if theparticular defendant is law-abiding or not)1.

Some jurisdictions consider whether the governments behavior is

outrageous(thus violating defendants Due Process rights)2.

Some jurisdictions consider whether the government has supplied anindispensable element to the crime

15)Insanity(a)

Type: Excuse

(b)Criminal insanity: mental condition at the time of the crime(NOT during trial,

sentencing, etc)

(c)

If defense is successful, the defendant is sent to a mental hospital for a period of time(i)

May be kept indefinitely, or released(d)

Insanity can be a defense to any crime(e)

Notice: must be advance notice of an insanity defense(i)

Once notice is given, the defendant is submitted to a court-ordered examination bya mental health professional (often the only evaluation in the case; privateexaminations are expensive)(ii)

If defendant is deemed sane, the insanity defense will not be raised at trial

(f)Verdicts:(i)

Not Guilty by Reason of Insanity (NGRI) = Not Guilty(i)Triggers an automatic hospitalization of 30-90 days

(ii)

Following the evaluation period, normal civil commitment rules apply(ii)

Guilty But Mentally Ill (GBMI): some jurisdictions allow a this third verdict(i)Defendant gets the proscribed sentence, but serves all or part of it in a mental

hospital(ii)If defendant leaves the hospital, sent to prison to serve the rest of the sentence

(g)Tests:(i)

MNaghten Test(Traditional)(i)Requires a disease of the mind(ii)Either defendant did not knowthe nature and quality of the act he was doing


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1.

E.g., strangling a person when he thinks hes squeezing a grapefruit

(iii)Or defendant did not knowthe act was wrong; moral issue1.

E.g., unaware that killing is wrong(iv)Cognitive test: measuring what the defendant knows(v)Irresistible Impulse (additional option): If defendant knows what hes doing

is wrong, but cannot stop himself from doing it

(ii)

Durham Test(found MNaghten test too limited)(i)Product test: a defendant is criminally insane if the crime is a product of amental disease or defect1.

Problems:a. Makes the insanity defense too widely availableb. Issues of causationc.

Turning the decision over to mental health authorities(iii)

MPC Test(Prevailing)(i)As a result of mental disease or defect (Durhamtest)(ii)The defendant lacks substantialcapacityto:

1. Either appreciate (rather than know) the criminality (wrongfulness) of his

conducta.

Cognitive test: includes an element of understanding the moral or legalimport of the behavior (combines the either/or of MNaghten)

2. Or conform to the law (Irresistible impulse option)

16)Mistake of Law(a)

Type: Excuse

(b)Ignorance of the law is no defense(i)

Exception: when a person relies on an official statement of law to their detriment17)Incompetency:

(a)NOT a guilt issue (moral blameworthiness); it is a Due Processissue

(b)Defendant must be mentally competent to stand trial (applies to the trial, sentencing,

and executionif applicablestages)(i)

Must be generally capable of understanding the proceedings, and generally capableof assisting in ones defense

(c)If proven incompetent (by a preponderance of evidence), trial is suspended, and

defendant is committed

Cohen Criminal Fall 2014

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Transcript of Cohen Criminal Fall 2014