Criminal Law Holland 20122012 Fall CRIMINAL LAW HOLLAND Page 3 of 21! 1....

2012 Fall CRIMINAL LAW HOLLAND

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Professor: Brooks Holland

Homicide: MPC Murder: §210.0(1) a person is guilty of criminal homicide if he unjustifiably and inexcusably take the life of another human being purposely, knowingly, recklessly, or negligently CL Murder – unlawful killing of a human being with malice aforethought Causation: Death must be caused by the homicidal act.

Four Kinds of Homicide

Criminal Law Outline


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Murder 1: Premeditated or deliberate murder

-‐ Mens Rea-‐ Intent or purpose -‐ Defendant must premeditated and deliberate about the intent to kill

o Premeditation: Construction of the intent to kill o Deliberation: Fully conscious of the intent to kill

-‐ Evidentiary factors may determine premeditation and deliberation -‐ MPC A homicide is murder if the defendant intentionally takes a life, or if he acts with extreme recklessness

Manslaughter: the unlawful killing of a human being without malice aforethought.

-‐ Mens Rea: intentional, the same as murder. But there is a notion of human frailty, recognition of culpability, which somehow makes a person less dangerous.

-‐ Heat of Passion (voluntary manslaughter): To determine HOP analyse how intent was formed: 1. The D must have lost control. (subjective) 2. The D must have had no time to “cool off” between the loss of control and the harm committed. (objective) The standard is reasonable opportunity

to cool off. 3. A causal connection between the provocation, the passion, and the homicide 4. Adequate Provocation (objective test, subjective assessment)

What would a [insert characteristic here] person do in this situation? Victim blameworthiness? The Holley Approach:


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1. The gravity of the provocation. How provocative was the situation to a reasonable person who shares the same situation? Potential provokers: adultery, mutual combat, assault and battery, resisting unlawful arrest, injury or abuse of close relative.

2. Application of an external standard of self-‐control-‐ Would a reasonable person under these same conditions loss control of homicidal urges? Words alone do not constitute adequate provocation

-‐ The MPC Extreme Emotional Distress § 210.3(1)(a)-‐(b) Two requirements: 1. Mental or emotional trauma of significant dimensions (subjective) 2. A reasonable explanation or excuse for the extreme emotional distress. (Objective)

-‐ Involuntary Manslaughter-‐ murder resulting from a lawful act done in an unlawful manner (criminally negligent homicide) or an unlawful act (misdemeanor manslaughter).

The Depraved Heart: Murder without forethought or intention. Reckless Homicide.

-‐ At common law this is Murder 2 -‐ Thomas: the defendant has committed murder with a base antisocial motive and with wanton disregard for human life, done an act that involves a high

degree of probability that it will result in death. -‐ Phillips: an act, the natural consequences of which are dangerous to life, which act was deliberately performed by a person who knows that his conduct

endangers the life of another and who acts with conscious disregard for life. -‐ MPC:Extreme Indifference: Recklessness + an extreme indifference to human life

§210 (2.1)(b) Reckless and negligent homicide under the MPC. Note, “recklessness and indifference are presumed if the actor is engaged or is an accomplice in the commission of, or an attempt to commit, or flight after committing or attempting to commit robbery, rape or deviate sexual intercourse by force or threat of force, arson, burglary, kidnapping or felonious escape.”

Negligent Homicide:

-‐ MPC § 210.4 homicide constitutes negligent homicide when it is committed negligently. -‐ Consider the following: What did the D know about the risk of death? What did the D not know about the risk of death a reasonable person would not

have known? What did the D know that a reasonable person would have known? Felony Murder:

-‐ When a felony is committed resulting in a homicide. If the felony is proven, no separate mens rea for the murder is needed to convict for the murder, so long as the felony caused the death.

-‐ No MPC clause, but felony murder may fall under extreme recklessness. Rape Traditional common law-‐ “unlawful sexual intercourse with a woman without her consent by force, fear, or fraud” Elements of Rape:

-‐ Actus Reus-‐ Rape involves the act of penetration no matter how slight.


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-‐ Traditionally requires proof of:1) lack of consent by the victim beyond a reasonable doubt and 2) force by the defendant beyond a reasonable doubt o These elements usually are considered independently, but many jurisdictions have moved away from requiring force and define rape solely as a

lack of consent. Consent:

-‐ CL traditional Approach: What did the victim intend and what did she effectively communicate? (No means No!) -‐ Modern approach: Did the D explicitly get the green light? (She didn’t say no, but did she say yes?) -‐ Marriage and Consent-‐ Traditionally there’s a spousal exception to consent.

o Abandoned now in all 50 states o MPC 213.1(1);213.6(2) bars rape by those living as man and wife, with exception for man and wife who are separated. o There may, however, be stricter requirements for rape in a spousal relationship (prompt reporting, may require force)

-‐ MPC Gradation of Rape: §213.1(1) Force:

-‐ CL approach: requires 1) the use of threat of force likely to cause death or serious bodily injury, 2) a kidnapping, or 3) the victims earnest resistance to the D’s conduct. If only the 3rd is present, resistance must be “until exhausted or overpowered”. Verbal resistance is not resistance.

o Justification: The burden of protecting chastity and purity is the woman’s. -‐ Modern approach: many Jx abandoned resistance, but several maintain reasonable resistance, and in those Jx lack of resistance is an affirmative

defense. Mens Rea: -‐ General Intent: A good faith and reasonable belief that the victim voluntarily consented is a defense to rape.

Rape Shield Laws: -‐ Statutes that disallow certain evidence in some cases. Limits the defense to the circumstances surrounding the case. -‐ Exceptions: very from Jx to Jx, but some evidence may be allowed if there is a history of fabricating rape, prostitution, or a prior consensual sexual

relationship with D. Statutory Rape: -‐ Traditionally a strict liability defense. Belief in victim’s age is not a defense. MPC states if the vic is under the age of 10 there is a strict liability case.

Justifications v. Excuses Note MPC §3.01 notes: “To say that someone’s conduct is ‘justified’ ordinarily connotes that the conduct is thought to be right, or at least not undesirable; to say someone’s conduct is ‘excused’ ordinarily connotes that the conduct is thought to be undesirable but that for some reason the actor is not to be blamed for it” Justification Excuse


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Necessity/Lesser Evil Duress Law Enforcment/Public duty Insanity Defense of Others Entrapment Defense of Property Compulsion Mistake Intoxication Self Defense Consent

Self Defense Common Law components:

-‐ Necessity (to use deadly force) – danger must be imminent and immediate -‐ Proportionality-‐ must be a reasonable belief that only deadly force will stop the attack -‐ Reasonable belief-‐ that the attack endangers life or serious bodily harm

o Unreasonable belief may be a partial defense o To determine a reasonable belief consider (Goetz):

1. Known physical movements of the actors 2. Subjective knowledge of the aggressor 3. Actors known physical attributes 4. Prior experience that provide a reasonable basis for D’s belief

MPC: -‐ Immediately Necessary §3.04(1)-‐(2): self-‐defense support if force is “immediately necessary…on the occasion”; the aggression used against the D will in

the present occasion will be used against them. -‐ Justifiable when threat of death, serious bodily injury, kidnapping, or rape. Deadly force defined in §3.11(2) -‐ No provision for reasonable? Not explicitly, but §3.09 states, “[when] the actor is reckless or negligent in having such a belief or in acquiring or failing to

acquire any knowledge or belief that is material to the justifiability of his use of force, the justification afforded by [§3.03-‐3.8] is unavailable in a prosecution for an offense for which recklessness or negligence, a sthe case may be, suffices to establish culpability”

The Initial Agressor: When the attack is provoked

-‐ If the defendant created the circumstances which provoked the deadly force by the aggressor, D may be barred from a self-‐defense claim. -‐ There must be a renouncement of the initial aggression and a continued aggression of deadly force by the aggressor in order to uphold a self-‐defense

claim. -‐ Determining when the D created necessity of deadly force: an affirmative unlawful act reasonably calculated to produce an affray, foreboding,

unreasonable consequence. -‐ MPC and the Initial Aggressor: §3.04(2)(b)(i)

Prohibits the use of deadly force by a person who, “with the purpose of causing death or serious bodily injury provoked the use of force against himself in the same encounter”, however, a person who provokes with non-‐deadly force maintains right to a self-‐defense claim.


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Exceptions to self-‐defense:

-‐ Resisting arrest: MPC §3.04(2)(b)(i) -‐ Duty to retreat-‐ if it is possible to retreat you must, except when in your own home or work

Imminence and the Battered Woman:

-‐ In situations where a person is otherwise captive to violence they may be able to use a self-‐defense claim -‐ The imminently necessary rule in the MPC covers the battered woman syndrome -‐ Many jurisdictions give special considerations to women with battered women syndrome

Defense of Others:

-‐ At common law: two traditional forms: 1. Alter Ego-‐ if the person you were protecting was not in a position of imminent danger D is not justified in using deadly force. 2. The reasonableness approach-‐ if the D reasonably believed the other was in imminent danger they are justified to use deadly force.

-‐ MPC §3.05 The D must believe if he were the other person he would have the right to use force to protect himself The D must believe his protection is necessary to protect the other person The D may be obliged to retreat or comply with actor before using force if he believes it will prevent the harm threatened.

Other Defenses Choice of Evils – D commits crime as an alternative to a greater social harm

-‐ Common Law components: Avoided harm must be a clear and imminent danger D must reasonably believe their actions will avoid a greater harm, a comparable harm doesn’t count There must be no less harmful alternative D must not bear the fault for causing the greater harm. Defense is not available to homicide cases.

-‐ MPC §3.02 A Greater Evils defense is only applicable if: Harm to be avoided is greater than the harm the D’s conduct proscribed by law The legislature has not clearly expressed its intent to exclude D’s conduct from a necessity defense Harm does not need to be imminent Defense is available to homicide cases. Defense is not available when D negligently or recklessly caused the greater harm or was negligent or reckless in assessing their choice.

Duress-‐ The absence of choice

-‐ Common Law: D committed offense only because of an unlawful threat of imminent, deadly force; non-‐deadly doesn’t count


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D’s belief is subject to a reasonable person D must not be at fault for being exposed to the threat Duress is not a defense to homicide.

-‐ MPC §2.09 Does not need to be deadly force, just unlawful force, but must be “against his person, or a person of another” Duress may be a defense to homicide Reasonable firmness standard: D’s submission to coercion will not excuse D’s conduct unless a person of reasonable firmness also would have submitted MPC §2.09(2) no defense for a person who recklessly placed themselves in the situation that would probably lead to duress MPC §2.09(3) – eliminates the presumption that women action at husbands command is always coerced.

Entrapment: The government made me do it

-‐ Common Law: The government induced the D to commit the crime for the purpose of persecuting the D. o Inducement: more than a tempting opportunity, the government must have drawn an innocent person affirmatively into criminality, and the D

must not have been predisposed to commit the crime willingly. -‐ MPC §2.13

Follows the common law, with two additions: 1. Burden of proof on the D 2. Not a defense to charges involving injury or threat of injury to a person other than the inducer.

Insanity: A lack of culpability

-‐ Insanity not often used as a defense, but mental illness is. Not the same thing -‐ Not every jx recognizes -‐ The M’Naughten test: D is insane if, at the time of the crime, due to a mental disease or defect D did not know the nature and quality of his or her

action or D could not distinguish right from wrong. Hinges on the ability to know right from wrong. -‐ The Irresistible Impulse rule: at the time of the crime, an irresistible and uncontrollable impulse destroyed D’s ability to choose between right and

wrong; a loss of free agency. Hinges on the ability to Do right from wrong. -‐ Competency is not an insanity defense, competency asks at the time of the trial if the person is so incompetent they may not assist in their own

defense; a matter of due process. -‐ MPC Test: Must have lacked substantial capacity to:

(1)Appreciate the criminality (wrongfulness) of his conduct, or (2) to conform his conduct to the requirements of the law. Does not require mental incapacity.

Intoxication:

-‐ If intoxication is involuntary it is an excuse. Voluntary intoxication is never an excuse (except in some jx where severe voluntary intoxication is, but this is rare).


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-‐ MPC §2.08: intoxication is a defense if intoxication negates an element of the crime. D cannot negate recklessness if the defense is intoxication prevented D from perceiving the risk, even if factually the risk is not see, D is still guilty of recklessness.

Inchoate Offenses Attempts – an unsuccessful effort to commit a substantive or target crime

-‐ An attempt constitutes a discrete crime from the target crime (two separate charges) -‐ Mens Rea: two specific intent crimes:

1. Intent to engage in the act constituting the actus reus of the attempted crime and 2. Intent to commit the target crime

-‐ Actus Reus: Some common law tests ;The “last act”, the “probably desistance” test, the “abnormal step” test, the “unequivocal test” Most common: Dangerous Proximity Test: D commits the actus reus of the attempt crime when D comes dangerously close to committing the target crime, judged by the seriousness of that target crim.

-‐ Attempt to kill, no matter what the actual crime would be, is always attempted murder -‐ MPC: §5.01 Three Categories

1. Attempt to commit conduct crimes: purposely engaged in conduct that would constitute the crime if the attendant circumstances were as he or she believed them to be §5.01(1)(a)

2. Attempts to commit result crimes: D engaged in any act or omission with the purpose of causing the result, or with the belief that his or her act or omission would cause the result. §5.01(1)(b)

3. Incomplete attempts-‐ D purposely engaged in any act or omission that, under the circumstances and D believed them to be, constituted a substantial step in a course of conduct planned to culminate in the crime. §5.01(2)(a-‐g)e

Shifts the focus from how close the D came to committing the crime to what they have accomplished towards commiting the crime. Conspiracy – liability for an agreement to commit crime

-‐ Two separate crimes, the crime itself and the agreement -‐ Actus Reus – unlawful agreement between 2 or more persons

Plurality rule-‐ each of the parties must be a sincere or actual member of the agreement Overt Act-‐ requires an overt act in the furtherance of a conspiracy before an actual conspiracy exists Not all jx require plurality or overt acts MPC §5.03-‐ no plurality requirement. An overt act required for crimes less than second degree felony. Second and first degree crimes require both an overt act and plurality. An overt act can be any act (unlawful or not) that furthers the conspiracy

-‐ Mens Reus Intent to partner with others in conspiracy Intent to accomplish unlawful objectives in conspiracy Pinkerton Rule: D is liable for all reasonably foreseeable substantive crimes committed in furtherance of the conspiracy. It does not matter if D was only involved in the conspiracy for the object of one crime.


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Solicitation: Requesting another person to perform illegal activities

-‐ The crime of the request and the crime itself are not two separate crimes -‐ Actus Reus-‐ unlawful request, comma, etc (MPC §5.01(1)), does not require the actual crime to be committed. -‐ Mens Rea-‐ Intent to commit the actus reus of solicitation. Intent that the solicited party commits the crime requested. -‐ Attempted solicitation? Some cases state it the request was made but not heard or received

Accomplice Liability-‐ Liability for the criminal conduct of another person

-‐ Derivative liability, not the same as vicarious liability -‐ An accomplice generally may not be convicted if the principal is acquitted, but the principal’s acquittal under and excuse defense does not automatically

preclude an accomplice conviction. -‐ Actus Reus: Assistance in fact. Encouraging, importune, solicit, command, request, aid, etc. of another person in committing a crime. -‐ Mens Rea: The act of assistance is intentional. D assisted with the culpability required for the crime. -‐ MPC see §2.06(1), 2(c), & (3)(a)

Under the Model Penal Code, a person can be regarded as "legally accountable" for the conduct of another, and therefore guilty of complicity, in any of three situations: 1) he solicits such other person to commit the crime; 2) he aids or agrees or attempts to aid such other person in planning or committing it; 3) having a legal duty to prevent the commission of the offense, fails to make proper effort to do so; or 4) when the law explicitly declares that particular conduct constitutes complicity. Model Penal Code § 2.06 (3).


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CRIMINAL ISSUES RULE STATEMENTS: CRIM LAW:

• A crime requires an actus reus, or a physical act which is at the very least voluntary. Actus reus may be satisfied by an omission, or failure to act, but only under particular circumstances. A duty to act exists when it is imposed by statute, the term of a contract, a special relationship exists, there is a detrimental undertaking (good Samaritan), or the person caused the victim’s peril. In order for an omission to result in criminal liability, a person with a duty to act must have knowledge that a duty exists, and it must be possible for the person to have acted.

• Mens reas is the mental state a defendant must have possessed in order to have committed the crime. Strict liability crimes require no mens rea. Specific intent crimes require a subjective desire, specific objective or knowledge to accomplish a prohibited act. At common law the following crimes are specific intent: First degree murder, inchoate offenses, assault with intent to commit battery, and theft offenses. Malice crimes require a reckless disregard of a high risk of harm. At common law, malice crimes include arson and murder. General intent crimes require only the intent to perform an act that is unlawful. Under the model penal code, acts done knowingly, recklessly or negligently qualify as general intent crimes, for example, battery, rape, kidnapping and false imprisonment. Transferred intent will occur when a person acts with the requisite intent to cause harm to one person or object, but as a direct result harms a different person or object. The defendant can still be liable for the harm caused to the other person or object. The MPC does not specifically recognized transferred intent. Under the MPC mens rea is stated as purposefully, knowingly, recklessly, or negligently. Purposefully is when a defendant has a conscious objective to engage in conduct to cause a certain result. Knowing or willfully is when the defendant is aware that their conduct is of the nature required by the crime; the defendant is aware that a criminal result is practically certain to occur based on their conduct. Recklessly is when a defendant acts with a conscious disregard of a substantial and unjustifiable risk; it must be a gross deviation from the standard of conduct of a law abiding person. Negligently requires that the defendant is aware of a substantial and unjustifiable risk. If the mens rea is not stated under the MPC if can be established if the defendant acted purposely, knowingly, or recklessly (not negligently).

• Mistake of fact may be a defense to any crime, but it must be an honest mistake. Mistake of fact is never a defense to strict liability crimes. A mistake of fact must be reasonable if the crime is a general intent or malice crime. If the crime is a specific intent crime the mistake need not be reasonable. Under the MPC a mistake of fact is a defense if it negates the required state of mind for a material element of the crime.


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A mistake of law generally is not an excuse. An exception is when there is a reliance on the decision of an official interpretation, a statute which was not made reasonably available to the public, or an honestly held mistake that negates requisite intent.

• A principal to a crime is the person whose acts or omissions are the actus reus of the crime; the perpetrator of the crime. An accessory before the fact is a person who aids, abets, or encourages another to commit a crime, but is not present during the commission of the crime, and has the requisite criminal intent. The accessory may be held criminally liable to the same extent as the principal. Principal in the second degree is a person who is present at the scene of the crime and aids, abets or encourages the commission of the crime with the required criminal intent. Accomplice An accomplice can legally withdraw from a criminal act if they 1) repudiate the prior aid, 2) do all that is possible to countermand prior assistance, and 3) do so before the chain of events is set in motion and unstoppable. A mere change of heart or flight from the scene is not enough. A person who is a member of a statutorily protected class cannot be an accomplice. If a crime requires another party, that party is not, simply by engaging in the criminal act, an accomplice. An innocent agent is not an accomplice (i.e. someone who is tricked into helping). At common law an accomplice could only be convicted if the principal was also previously convicted of the same crime. Most modern statutes have reversed this. An accessory after the fact is a person who aids or assists a felon in avoiding apprehension of conviction after the commission of a felony. They must know that a felony was committed, and must act specifically to give assistance for the purpose of helping the felon avoid apprehension. An accessory after the fact is not liable for the same crimes committed by the felon. Mere failure to report a crime does not make an accessory.

• Insanity may be a defense to a crime. The defendant is presumed sane and has the burned of raising the issue of insanity, which then shift the burden of proof to the prosecution. Insanity should be distinguished from competency to stand trial, which means at the time of the trial the defendant is not able to aid in their own defense or to understand the charges against them. There are four different insanity tests: The Mc’Naughten test state that the defendant is not guilty if, because of a defect of reason due to a mental disease, the defendant did not know either 1) the nature and quality of the act or 2) the wrongfulness of the act. The irresistible impulse test states that the defendant is not guilty if they lacked the capacity for self-‐control and free choice because mental disease or defect prevented them from being able to conform their conduct to the law. The loss of control need not be sudden, but must be an impulse the defendant cannot resist. The Durham test states that a defendant is not guilty if the unlawful act was the product of the defendant’s mental disease or defect, and would not have been committed but for the disease or defect. The MPC test states that the defendant is not guilty if, at the time of the conduct, they, as a result of mental disease or defect, did not have substantial capacity to appreciate the wrongfulness of the act, or to conform the conduct to the law.


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• Voluntary intoxication is a defense to specific intent crimes if it prevents the formation of the requisite intent. Voluntary intoxication is not a defense when the intent is formed before the intoxication. Voluntary intoxication is not a defense to crimes involving malice, general intent, or strict liability. Involuntary intoxication is a defense when the intoxication serves to negate an element of the crime. The intoxication must take place without knowledge, or under duress.

• At common law a child under the age of seven cannot be convicted of a crime. A child over 7 but less than 14 has a rebuttable presumption to be incapable of a crime. A child over 14 could be charged as an adult. The modern standard usually sets the age somewhere between 11 and 14.

• Murder is the unlawful killing of a human being committed with malice aforethought. Malice aforethought includes the intent to kill, intent to inflict serious bodily harm, reckless indifference to an unjustifiably high risk (a depraved heart), or the intent to commit certain felonies. Intent to kill can be determined by conduct consistent with such an intent, such as the intentional use of a deadly weapon.

• Felony murder is an unintentional killing proximately caused by and during the commission of attempted commission of an inherently dangerous felony

including burglary, arson, rape, robbery, and kidnapping. It is a defense to a felony murder if 1) there is a valid defense to the underlying felony, 2) the felony was not distinct from or independent of the killing itself, 3)death was not a foreseeable result or a natural and probable consequence of the felony, or 4)death occurred after the commission of the felony and the ensuing flight of the scene of the crime.

• First-‐degree murder is a statutory degree of murder, not present at common law. First-‐degree murder is commonly defined as a deliberate and

premeditated murder. Felony murder is often classified as a first-‐degree murder. Murders resulting from egregious acts such as torture or bombing are often classified as first-‐degree murder. Premeditation means the defendant reflected on the idea of killing or planned the killing; the defendant was fully conscious of the intent to kill.

Second degree murder is homicide committed with the necessary malice of intent to kill, intent to do great bodily harm, or a depraved heart. (in other words, not premeditated). Voluntary manslaughter is a murder committed in response to adequate provocation. The defendant must have acted in the heat of passion; provocation that would inflame the passion of a reasonable person to the extent that it would cause the person to momentarily act out of passion rather than reason. There must not have been a cooling off period, or sufficient time between the provocation and the killing for a reasonable person to cool off. There must have been a causal connection between the provocation and the killing. Under the MPC a defendant commits manslaughter if they commit an act which would otherwise be murder, but the defendant was under extreme mental or emotional disturbance which has a reasonable explanation. The reasonableness of the explanation or excuse is judged under a person under similar circumstances to the defendant. Involuntary manslaughter is an unintentional homicide committed with criminal negligence or during an unlawful act.


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Criminal negligence is reckless actions that puts another person at significant risk of death or injury. It requires extreme negligence.

• Larceny is the trespassing, taking and carrying away of the personal property of another with the intent to permanently deprive that person of their

property. The property must be taken without the owner’s consent. At common law, only tangible property could be subject to larceny, however the modern rule expands larceny to include intangibles like stocks or services. Larceny may be committed against a thief. Larceny cannot be committed against a joint owner. Abandoned property cannot be subject to larceny. A bailee only commits larceny if they take property out of a closed container with the intent to steal it. Mistakenly delivered property can be subject to larceny if there is an intent to permanently deprive. A person who borrows property is not generally guilty of larceny. Larceny by trick occurs when the defendant obtains possession of, but not tilet to, property owned by another through fraud or deceit, with the intent to unlawfully convert the property. There must be a false representation, which the victim relies on and causes the victim to give over their property (subjective standard). Under larceny by false pretense, the defendant actually gains title. Forgery is the fraudulent making of a false writing, which has apparent legal significance, with the intent to defraud. The writing is fraudulent if the defendant intends to make wrongful use of the writing (i.e. cashing a forged check). Embezzlement is the fraudulent conversion of the property of another by a person who is in lawful possession of the property. The defendant must have the intent to defraud the rightful owner of their property. Robbery is larceny by force or intimidation, where the taking of the property is from the person or presence of the victim. Extortion at common law, was the unlawful taking of money by a government officer. Under the modern rules, extortion is more broadly is the taking of money from another by treat. Unlike robbery, the threat need be immediate harm or violence, and the property need not be in the victims presence. Burglary, at common law was the breaking and entering of the dwelling of another at night, with the specific intent to commit a felony therein. Entry obtained by fraud of threat, or even the opening of a closure, constitutes a breaking. Breaking can occur within a dwelling, so long as there is an opening that was intended to be closed. Use of force to exit is not breaking. Entering occurs when any part of the defendant’s body, or an instrument used by the defendant enters the dwelling. An abandoned structure can not be burgled. The modern rule allows for burglary to occur at both commercial or residential structures, and does not require the burglary to happen at night. Arson is the malicious burning of the dwelling of another. Malice need not be ill will, a reckless disregard is enough. A burning must be at least a charring. Most states have expanded arson laws to include non-‐dwelling structures. At common law the burning of one’s own dwelling is not arson.

• Possession of an prohibited object or substance is unlawful if the defendant exercises control over such objects or substances. The defendant is not requires to be aware that the possession is illegal. Receiving stolen goods is illegal if the defendant received control over the stolen property (not necessarily possession), had knowledge that the property was stolen, and had intent to permanently deprive the owner of the property.


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• Battery is the unlawful application of force to another person that causes bodily harm to that person, or constitutes an offensive touching. The touching

does not necessarily need to be by the person itself, it could be by an object utilized by the defendant (i.e. throwing a rock). Battery is a general intent crime that includes not only the intentional conduct but also criminal negligence. Consent is not generally a defense to battery, but in isolated cases may be (such as two people agreeing to participate in a wrestling match).

• Assault is an attempt to commit a battery, or intentionally placing another in apprehension of imminent bodily harm. Attempted battery requires that the

defendant take substantial steps to commit a battery. Attempted battery is a specific intent crime. Consent is not a defense.

Mayhem is a common law battery that causes the dismemberment or permanent disfigurement of a person. This is the equivalent of modern day aggravated assault.

• Kidnapping is the unlawful confinement of a person against their will, with either the movement or hiding of the person.

• False imprisonment is the unlawful confinement of a person without consent.

• Rape, at common law, is the unlawful sexual intercourse with a female against her will, by force or threat of immediate force. Modern law has made it unlawful to exclude the husband in many states. Sexual intercourse means penetration, however slight. Most states make rape unlawful against males or females. Most states remove the threat of force requirement. Consent cannot occur if the victim is unconscious or in a drug induced stupor. Fraud rarely negates consent. Rape is a general intent crime, and requires only the intent to induce intercourse without consent. Intent is negated by reasonable belief that lack of resistance is consent.

• Solicitation is the enticing, encouragement, or advising of another person to commit a crime, with the intent that the other person commits the crime.

• Conspiracy is an agreement between two or more persons to accomplish an unlawful purpose with the intent to accomplish that purpose. The majority rule

requires conspirators to make an overt act in furtherance of the conspiracy. The Wharton rule states that if a crime requires two or more participants, there is no conspiracy unless more parties than necessary to complete the crime agree to commit the crime. In order to withdraw from a conspiracy participants must notify all conspirators, or police must be notified in a timely manner. Withdraw can happen any time between the agreement and the overt act. Under the MPC/minority view, there must be timely notification of the withdraw which is successful in thwarting the conspiracy.

• An attempt is a substantial step towards the commission of a crime, with the intent to commit the crime. If the crime is successfully committed, then the

attempt merges. Impossibility is not a defense to an attempt crime

• A person who is not the aggressor is justified in using reasonable force against another person to prevent immediate unlawful harm to themselves or others. The defendant can only use as much force as necessary to repel the attack. Deadly force may only be used when reasonably necessary to prevent death or serious bodily harm, to prevent a serious felony, or to apprehend a felon who endangers the safety of the community. When applying non-‐deadly force


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there is never an obligation to retreat. Under the majority view retreat is not required when using deadly force, but is required under the minority rule, if safely possible. An initial aggressor can gain the right to self defense if 1)an aggressor using non-‐deadly force is met with deadly force, or 2) the aggressor in good faith, completely withdraws from the altercation, and communicates this to the victim. Non-‐ deadly force can be used to protect property that the defendant believes to be in imminent danger, where there is not time to notify law enforcement. Generally, there is no right to use deadly force to protect property.

• A third party’s unlawful threat which causes a defendant to believe that the only way to avoid death or serious bodily injury of another is to violate the law

and causes the defendant to do so, allows the defendant to claims duress.

• If natural forces create a necessity to break the law.

• Consent of the victim is not a defense to the crime, unless the consent negates a required element of the crime.

• Entrapment is the planning of an offense by law enforcement, and procuring commission of the offense by the defendant who would not have committed the offense except for the trickery, persuasion, or fraud of the officer.

CRIMINAL PROCEDURE:

• The fourth amendment protects individuals from illegal searches and seizures. The remedy for violations under the fourth amendment is the exclusionary rule, which prevents the admission of evidence obtained from unlawful searches and seizures in a criminal trial. Exceptions to the exclusionary rule are evidence that would have inevitably been discovered, evidence that was discovered based on unrelated sources to the tainted evidence, the chain of causation between the primary taint and the evidence has been so attenuated that it purges the taint, evidence obtained in violation of the knock and announce rule, if there were only isolated incidence of negligence, or if there was a harmless error. Evidence gathered in good faith by officers where the warrant was later determined to be invalid will not be excluded unless no reasonable officer would have relied on the affidavit underlying the warrant, the warrant was defective on its face, the warrant was obtained by fraud, the magistrate wholly abandoned his judicial role, or the warrant was improperly executed.

• A person is seized if an officer, by means of force or show of authority, terminates or restrains freedom of movement; a person is seized if in the view of the totality of the circumstances, a reasonable person would have believed they were not free to leave. The detention of the person must be intentional show force or authority restraining the person. Temporary stops during a stop and frisk are not arrests, but may constitute seizures

• Stopping an automobile constitutes a seizure of the driver and any passenger. Automobiles in general have a lesser expectation of privacy than a home, but the stop of an automobile must be for reasonable, articulable suspicion of a violation of the law. Police may stop automobiles at check points for sobriety or immigration, or for search of witnesses to a nearby accident. People additionally do not have a reasonable expectation of privacy of VIN numbers.


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• Arrests occurring in an individual’s home always require a warrant absent an exception. Arrests warrants must be issued by a neutral and detached

magistrate upon finding probable cause that the defendant committed the crime. A warrant to arrest an individual implicitly gives officers permission to enter that persons home, but not the home of another, this requires a separate search warrant, exigent circumstances, or consent to enter the home. If a warrant was issued improperly the arrest is not per se invalid, if the officers had independent probable cause. However, not all arrests require a warrant: arrests occurring in a public place do not require a warrant. Officers may directly arrest an individual if they are witness to either a felony or misdemeanor. If a felony has been committed outside the presence of the officer, the officer may arrest anyone they reasonably believe to have committed a felony, but a misdemeanor requires the officer to be present when the crime was committed. However, an unlawful arrest has no bearing on any criminal prosecution. While unlawful seizures of persons have no bearing, suppression of unlawfully seized evidence as a result of the arrest can be suppressed.

• The fourth amendment protects against unreasonable searches by government official, the fourth amendment has no bearing on the actions of private citizens. A search occurs anytime an officer violates a reasonable expectation of privacy. The courts have drawn a bright line to say that the fourth amendment always protects the home against unreasonable searches and seizures, this protection extends to the curtilage of the home, which is the area immediately surrounding the home. The court will examine a four part test to determine if a piece of property is part of the curtilage: the proximity of the home, if the area is within an enclosure surrounding the home, the nature of the use of the are, and steps taken by the resident to protect the area from passer-‐byers. On the other hand, open fields are not protected by the fourth amendment, even if the field has no trespass signs posted. The protection of the home extends to overnight guests in the home. However, commercial guests do not have a reasonable expectation of privacy.

Guests in a motel room have a reasonable expectation of privacy during the time the room is rented. Additionally, business premises are subject to protection if they are not open to the public, but they may be subject o administrative searches. Prisons have no reasonable expectation of privacy. There is no reasonable expectation of privacy in abandoned property, this includes trash at the corner. There is no reasonable expectation of privacy of one’s physical characteristics, handwriting, of voice sample. There is no reasonable expectation of information disclosed to third parties, this includes government informants. There is also no reasonable expectation of privacy for things which could be seen by fly overs of helicopters or planes. It is the rule that officers are prohibited from using technological devices which are not in use by the general public to search without a warrant. For example the use of heat sensors to examine a house or the use of a listening device to listen to phone booth conversations is prohibited. In general, the use of a well trained dog in dog sniffs does not constitute a search, unless the dog intrudes onto property protected under the 4th amen. Field tests do not constitute a search under the 4th amendment.

• The fourth amendment protects papers and effects from search and seizure. However, papers and effects transferred to third parties no longer maintain that protection. Additionally, records maintained by third parties are not protected by the fourth amendment.

• Unless an exception applies, unreasonable searches of things and people protected under the 4th amendment require a warrant. A search warrant must be

issued by a detached and neutral magistrate and be based on probable cause, which is supported by oath or affidavit, and the warrant must describe the persons and things to be searched and seized.


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Probable cause can come from an officers personal observations, information from a reliable, known informant, an unknown informant who can be independently verified, evidence seized during stops based on reasonable suspicion, evidence discovered in plain view, or evidence from a consensual search. A defendant can attack the validity of a facially valid warrant if the affidavit contains false statement that were made by the affiant knowingly, intentionally, or with reckless disregard for the truth, and the statements were necessary to the finding of probable cause. This generally a difficult test to meet. Information from informants is generally acceptable for determining probably cause, but courts will look at the totality of the circumstances, and if the informant is not disclosed, they must be verified. Warrants can be anticipatory, so long as there is probable cause that the triggering event will occur, and the warrant is not executed until the triggering event occurs. General search warrants are not allowed, they must state persons and things with particularity. Notice that evidence obtained by questionable manners, such that they shock the conscience, are not admissible, for example, telling a person there is a gas leak in their home in order to gain consent to entry, or gathering evidence during a surgery to remove a bullet. A warrant cannot be executed by a private citizen, and is generally executed by a police officer, but may be executed by other appropriate officers (such as a fire inspector). Warrants must be timely executed, there is no hard and fast rule, simply within a reasonable time. Generally, officers must announce their presence before entering, however, “knock and announce” is enough.

• Warrantless searches are not invalid per se, if an exception applies. Searches made incidental to arrest are permissible if the arrest was lawful and the search is reasonable in scope. Warrantless searches of persons arrested and the area surrounding the person within their immediate control (i.e. their wingspan) from which a weapon may be concealed or evidence may be destroyed, is permissible. The search includes the right to search pockets and containers in the wingspan area, so long as those containers are large enough to contain a weapon or evidence of the crime. If an arrest occurs in a home, it is permissible to search closets and other spaces immediately adjoining the place of arrest from which an attack could be launched. These searches must take place promptly after the arrest. In searches incident to arrest involving a vehicle, officers are allowed to search the vehicle so long as the arrestee is within reaching distance of the passenger compartment at the time of the search and, as a result may post an actual and continuing threat to the officer’s safety or a need to preserve evidence form being tampered with, or there is reason to believe there is evidence of the offense of arrest in the passenger compartment. The search is limited to the passenger compartment and containers within the passage compartment, but not other areas such as the trunk or undercarriage. If a vehicle is legally impounded, the vehicle may be searched, including closed containers such as the glove box or trunk. A warrantless search of a home is permissible if there is exigent circumstances and probable cause. The existence of exigent circumstances is based on the totality of the circumstances, but includes hot pursuit of an individual believed to have committed a felon if there is probable cause to believe the alleged felon is on the premises, there are emergency situations which threaten the safety of the public or officers, or when a suspect is likely flee the scene before they can be secured, or destroy evidence before it can be secured.

• Terry stops and terry frisks are exceptions to the general search and seizure rules. A limited and temporary stop of an individual is justifiable if there is reasonable suspicion, based on articulable facts, that the detainee is involved in a crime. Justification is based on the totality of the circumstances. Terry stops must last no longer than necessary to effectuate the purpose of the stop.


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A limited search of a person, a “pat down” of a suspects clothing is permissible if there is reasonable suspicion that the suspect was involved in criminal activity and the search was necessary for the safety of the officer and others. If, under the plain feel exception, the officer conducting a valid frisk feels something that can immediately be identified as contraband, the officer may seize the evidence. Pursuant to a lawful stop of a vehicle, police may conduct a search of the passenger compartment only if there is reasonable belief that the suspect is dangerous and may gain control of weapons, and must limit the search only to areas which may reasonably contain weapons. Any terry stop may turn into an arrest if the officer develops probable cause.

• If an officer has probable cause to believe an automobile contains contraband or evidence of a criminal activity, the police may search anywhere in the vehicle, including trunks and locked containers. The search may extend to passenger’s belongings, and may include any vehicle so long as it is being used as a vehicle and not a home (i.e. RVs). However, the search of containers only extends to containers which could reasonably hold the evidence being searched for. Pretextual stops are permissible, so long as there was a lawful reason for the stop.

• Items in public view may be seized without a warrant. In private, if the officer is on the premises for a lawful purpose, and there is in plain view incriminating

evidence that is immediately apparent, the officer is permitted to seize such evidence.

• If an individual consents to a search, the search is permitted. Consent must be voluntary. Voluntariness will be determined on the totality of the circumstances. Consent given under the false assertion of authority is not voluntary. The police is under no obligation to inform an individual that they have no obligation to consent. A third party may consent to a search of property if they posses the requisite authority to consent, usually an owner or occupant of a premises has such authority, although, simply owning the property is not always enough to possess authority. If the property is jointly occupied, and one party consents to the search, but the defendant is present and does not consent, the search is not permissible. Parents generally have the authority to consent to searches of spaces occupied by children living in the same home, but maybe not locked containers in the child’s space. A person without authority giving permission does not per se invalidate a search, so long as there was apparent authority. Searches must be limited to areas where consent was given.

• Administrative searches are generally required to ensure public safety. They are permissible people in airplane boarding areas, searches of business in highly

regulated industries, wiretap information when matters of national security are at issue, public school searches based on reasonable grounds so long as they are not excessively intrusive based on the age and gender of the child, special needs searches (for example drug test after RR accidents), inventory searches (such as impounded vehicles), routine international boarder searches, vehicle check points and road blocks, or parolees at their home.

• To obtain a warrant for wiretapping, the warrant must be limited to a short period of time, demonstrate probable cause that a specific crime has been or is

about to be committed, the name of the person(s) to be tapped, describe with particularity the conversations to be overheard, include provisions for terminating wiretaps.


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• The Fifth Amendment provides that no person shall be compelled in any circumstance to be a witness against himself. The amendment applies only to individuals, not entities. The rule applies only to testimonial evidence. The rule applies to both civil and criminal proceedings. Evidence given compulsorily id not protected, such as voluntarily prepared business records. However, if a person is subpoenaed to hand over documents that are self incriminating, they can invoke their fifth amendment right. This does not prevent a warrant from compelling the disclosure of documents. However, the government may not compel the production of a diary. The privilege does not apply to administrative records or requests for identification during Terry stops.

To invoke the Fifth Amendment a defendant simply does not take the stand. Witness wishing to invoke the privilege, however, must take the stand, and must invoke the privilege for each individual question. When a defendant invokes the right, the state may not profit; the prosecution cannot comment on the invocation, unless if during the trial the defendant claims that he was not allowed to explain his story.

A defendant waives the privilege by taking the witness stand. Witnesses waive the privilege by disclosing self-‐incriminating information.

• The fifth amendment protects individuals during police interrogations. In a custodial arrest a defendant has a right to not be compelled to make self incriminating statements. Incriminating statements obtained during custodial interrogations cannot be used, unless a Miranda warning was issued.

A custodial interrogation is either a formal arrest or a restraint of movement to the same degree as would be associated with a formal arrest. A person is in custody if a reasonable person would believe that they are not free to leave. Traffic arrests are not custodial arrests. Location is an irrelevant factor. Questioning a person at the scene of the crime is not necessarily in custody. The questioning of prisoners apart from prisoners is not necessarily in custody. An interrogation includes any activity which the police knows to be likely to illicit incriminating responses. Miranda does not protect statements made voluntarily. A coerced confession is not voluntary. The totality of the circumstances will be considered to determine if coercion was used. Trickery does not necessarily equal coercion. The defendant’s age, state, health, education, or intoxication may be factors considered. If the defendant was provided with breaks, food or water may be considered. Once a custodial interrogation begins, anything the defendant says is inadmissible until they are issued their Miranda rights, and the defendant waives those rights. The defendant must be informed of their “right to remain silent, that any state uttered may be used in court, their right to consult an attorney and have that attorney present during an interrogation, and that an attorney will be appointed in the case of indigent defendants” To invoke the right to an attorney the defendant must make a specific, unambiguous statement asserting their right. Officers are not required to stop questioning and clarify ambiguous statements. Once the right is invoked, all questioning must stop until the defendant has consulted with their attorney and the attorney is present. Voluntary statements made by the defendant are admissible though. To invoke the right of silence the defendant must make a specific and unambiguous statement asserting their right. Once the right is invoked, the police must scrupulously honor that request. There is no requirement to give a Miranda warning before a grand jury trial, but, the defendant may consult with an attorney before the trial.


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• Miranda warnings are not required if there is a public safety risk, the officers are asking routine booking questions, or if the officer is an undercover police

officer.

• A defendant may waive their rights, if their waiver is knowing and voluntary. No waiver can be given until the warning itself is given. Once the waiver is given the defendant need not inform the suspect of the defendant’s effort to reach them, and need not inform council.

• Statements in violation of Miranda are not admissible, except that voluntary and trustworthy statements may be used for impeachment purposes, and the

statements may not be used to directly indicate guilt or innocence (but for veracity). Involuntary confessions are never admissible, but if admitted, the harmless error test will apply. Derivative evidence obtained from statements violating Miranda are inadmissible.

• A second confession, when the first was given before the Miranda warning was issued, and the second after, may be inadmissible if circumstances drain

away the substance of the Miranda warning. However, generally speaking, issuing a Miranda warning removes the taint of previously issued statements.

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