Criminal Law Flashcards
Elements of a Crime
1) Act -voluntary act (willed bodily movement) -omission/failure to act
2) Causation
3) Mental State (mens era) i.e. intent
**General Rule: almost every crime requires the 3 elements. DON’T DISCUSS MENTAL STATE if the other elements aren’t met.
Burden of Proof for Criminal Cases
Beyond a Reasonable Doubt is required (except for petty offenses) (preponderance of evidence standard violates due process clause)
Other Burdens of Proof in Criminal Cases
1) Burden of Production - coming forward with enough evidence to put a fact at issue 2) Burden of Persuasion - convincing trier of fact (usually jury) that the evidence proves a fact if D has burden of production for an issue, the issue is called “affirmative defense” (i.e. insanity)
Right to Trial by Jury
only petty offenses can be tried by a judge. 6th Amendment guarantees right to trial by jury. greater than 6 months in jail = right to jury trial
What is a petty offense?
Less than 6 months in jail. More than 6 months in jail=right to jury trial
Theories of Punishment
+Retribution - (backward looking)
+Utilitarianism
+Deterrence - (forward looking)
- specific: offender afraid to re-offend
- general: send message to society in general. everyone afraid to offend.
+Rehabilitation - (“fix” the offender for his/her own good & good of society)
Moral Influence Theory
+Incapacitation - (‘thug in prison can’t shoot your sister’)
Omissions
General Rule: omission is not an act Exception: where you have a duty to act. duty exists in limited circumstances. MPC 2.01: must be physically capable AND have a legal duty.
Omissions: 4 situations where failure to act may be breach of legal duty
1) statutory 2) status relationship (i.e. mother/child, spouses) 3) contractual 4) omission AFTER: creation of risk OR assumption of care
Omission Recap
omission is NOT an act UNLESS physically capable of acting AND duty exists. Duty exists IF: statutory, status relationship, contractual, or omission after creation of risk or assumption of care
Acting
Cause (stimulus) & Effect: Stimulus (cause): axe, poison, throw a punch, throw a can of gasoline Effect: death, vomiting, burns down building
Causation
Actual Cause (“but for” causation) Proximate Cause (was effect foreseeable)
Causation
Step 1 (stimulus): Ask “but for”…i.e. “but for Colonel Mustard swing the axe, would victim have died?” Step 2: Ask “was the effect of the stimulus foreseeable?”
Proximate Cause Test
Needs to be foreseeable and should not be highly extraordinary
Actual Causation: Special Rules
+accelerating the result if my actual cause accelerates a result that would have otherwise occurred, then both are actual causes. Dealing with multiple actual causes simultaneously. Tiebreaker.
+concurrent sufficient causes two people attack simultaneously, then both are actual causes. “but for” test does not work.
+independent supervening cause examples: but for the stabbing, would John have died from cancer?
Proximate Causation: Special Rules
- Special Rule on Foreseeability
- Eggshell Skull Rule
- you take your victim as you find them
- if reasonable person in your situation would have known this person has thin skull,then you are proximate cause of death of thin skulled person
- Medical Malpractice
- “mere” malpractice is foreseeable (may still be proximate cause)
- “gross” malpractice is not foreseeable (not proximate cause)
- Eggshell Skull Rule
Causation Flowchart
- Determine if action is “but for” cause (actual causation)
- Determine if action is “foreseeable” or instead “highly extraordinary” (Proximate causation). Foreseeable, proximate cause. Highly extraordinary, then not proximate cause.
- Before you make conclusion that someone was actual or proximate cause. Ask if there is a human actor whose act comes between 1st act and the effect. i.e. did someone else’s act intervene between first person’s act & final result.
- Ask if middle actor’s act is “voluntary”. (Volunary = “free, deliberate, informed”)
- IF YES for #3 & #4, then this middle act is “intervening cause” or “superceding cause” and original actor is no longer the legal cause
Voluntary has different meanings for the act and causation
Act: Voluntary act = willed bodily movement
Causation: voluntary = free, deliverate, informed behavior. involuntary if middle actor acts because of: shame (stephenson); public duty; fear; insanity; ignorance of fact; self-defense. Involuntary=not intervening cause. Typically a year and a day rule applies for causation.
intentionally, knowingly, willfully…all mean the same thing
negligence: inadvertant risktaking, gross deviation from reasonable person
recklessness: early common law, same as negligence
malice: intent or recklessness
MPC Mental States
Purposely, knowingly, recklessly, negligently
MPC vs C/L Mental States
Purposely (C/L: Intent)
Knowingly (C/L: intent)
Recklessly (Old C/L: Negligence)
Negligently (C/L: Negligence)
(from Regina v Cunningham)
Purposely: conscious object to engage in conduct or cause result
Knowingly: awareness/practically certain
Recklessly: conscious disregard of substantial and unjustified risk
Negligently: disregard of…risk of which he should have been aware
Knowledge is satisfied if D is aware of high probability of existence of fact, unless he actually believes it does not exist
MPC Principles of Interpretation for Mens Rea
1) single mens rea term applies to every element that follows the mens rea (unless a contrary purpose is clear)
2) if statute is silent, must show recklessness (at a minimum)
Strict Liability Crimes
Presumption against strict liability
factors considered to overcome presumption:
- public welfare offense?
- legislative policy?
- reasonable burden?
C/L: Mens Rea
significant distinctions with MPC:
- intent includes purpose & knowledge
- early C/L, reckless was really lower standard of negligence
MPC Mens Rea
- purposely
- knowingly
- recklessly
- negligenty
1 mens rea term applies to all elements, unless contrary purpose
no strict liability crimes (only violations)
if criminal statute silent, must show at least recklessness
Homicide
killing of a human being by a human being
E.g.
- murder
- manslaughter (voluntary/involuntary)
- vehicular homicide
- suicide
- infanticide
Intentional Homicide: Analysis Checklist
- Common Law Murder
- 1st deg
- 2nd deg
- MPC Murder
- Voluntary Manslaughter
- C/L: heat of passion/provocation
- MPC: extreme emotional disturbance
Murder: traditional definition
“the UNLAWFUL killing of another human being with MALICE AFORETHOUGHT”
MPC Murder
murder is homicide…
1) commited PURPOSELY or KNOWINGLY or (voluntary)
2) RECKLESSLY under circumstances manifesting EXTREME INDIFFERENCE to the value of human life (involuntary)
Common Law: 1st/2nd Degree Homicide Checklist
- 1st degree premeditated killing
- Carroll Jurisdiction (passage of time is NOT required for premeditation. NO, only “conscious purpose” is required)
- Guthrie Jurisdiction
- must be a “gap” between formation of intent to kill & killing
- Consider:
- reflection/time
- planning (weapon, place)
- prior relationship
- deliberate manner of killing
- 2nd degree
- in Guthrie jurisdiction only
C/L 1st/2nd Degree Homicide: Checklist
some jurisdictions have 1st & 2nd degree murder; some only have 1st degree murder
1st Degree Premeditated Killing
- Carroll Jurisdiction
- intent is sufficient in a carrol jurisdiction
- death penalty murders are typically spelled out
- Guthrie Jurisdiction (death penalty eligible)
- consider: reflection/time; planning (weapon/place); prior relationship; deliberate manner of killing
2nd Degree
- Guthrie Jurisdiction only
*
An INTENTIONAL killing is NOT always MURDER!
in some circumstances, an intentional killing that would ordinarily be MURDER can be reduced to MANSLAUGHTER:
- C/L: Heat of Passion/Provocation
- MPC: Extreme Emotional Disturbance (EED)
Intentional Homicide: Analysis checklist
C/L Murder:
1st degree
Carroll Jurisdiction: (“premeditation” = “intent)
OR
Guthrie Jurisdiction: (“premeditation” = “deliberation during gap in time” + intent)
2nd degree
MPC Murder:
Voluntary Manslaughter:
(also known as mitigated murder or murder lite)
an intentional killing that would be murder can sometimes be reduced to manslaughter:
1) C/L: Heat of Passion/Provocation
2) MPC: Extreme Emotional Disturbance (EED)
C/L: Heat of Passion/Provocation
Elements:
1) Adequate Provocation
A) C/L Categories (“AMICA”)
- Aggravated Assault or Battery
- Mutual Combat
- Illegal Arrest
- Serious Crime Against Close Relative
- Observation of Wife - Adultery
B) Reasonable (Ordinary) Person Standard
2) State of Passion
3) Insufficient Cooling Time
4) Causal link between provocation, passion, and killing
Cooling Time Doctrine
if enough time has passed between the provocation and the kiling for an ORDINARY PERSON to cool down, there’s no defense…
UNLESS jurisdiction adopts “rekindling” (note 6, CB399-400)
MPC Manslaughter
Manslaughter:
Committed recklessly OR
a murder done under influence of extreme mental or emotional disturbance for which there is reasonable explanation or excuse
MPC Test for Mitigation of Murder to Manslaughter
D acted under influence of extreme emotional disturbance (subjective)
For which there was a reasonable explanation or excuse (objective)
From the viewpoint of a person in the actor’s situation under the cirumstances as he believes them to be
MPC: EED Bottom Line
checklist for analysis of intentional manslaughter
C/L: Voluntary Manslaughter
- Adequate provocation (categories + reasonable man)
- ordinary cooling off requirement (maybe rekindling allowed)
MPC: Manslaughter
- extreme emotional disturbance
- no cooling off requirement
MPC Murder
Murder
1) committed PURPOSELY or KNOWINGLY
OR
2) RECKLESSLY under circumstances manifesting EXTREME INDIFFERENCE to the value of human life
MPC: Negligent Homicide
negligently causes death of another human being
Reducing Murder to (voluntary) Manslaughter
Unintentional Homicide: Analysis Checklist
1) RECKLESS MURDER WITH extreme indifference to human life (depraved heart murder)(Both MPC and C/L)
2) MANSLAUGHTER
- C/L:
- Traditional involuntary
- Modern involuntary
- MPC:
3) NEGLIGENT HOMICIDE
Example: Comparing PA C/L vs. MPC
C/L PA Code:
- murder - 3 degrees
- voluntary manslaughter (provocation)
- involuntary manslaughter (reckess or gross negligence)
MPC:
- murder
- manslaughter (EED)
- negligent homicide
Unintentional Homicides that are NOT murder
1) Manslaughter
Common Law approaches:
tradtional involuntary
modern involuntary
MPC Approach
2) Negligent Homicide
MPC = Modern C/L
Modern C/L Approach to Involuntary Manslaughter
MENTAL STATE=Recklessness
(**NOT** NEGL. or GROSS NEGL)
MPC Manslaughter Mental State
RECKLESSNESS
Criminal Responsibilitiy
Manslaughter:
Traditional Involuntary (Negligent or reckless)
Modern Involuntary (reckless)
MPC (reckless)
Negligent Homicide
MPC: Negligent Homicide
negligently causes death of another human being.
- substantial and unjustified risk?
- of which D SHOULD HAVE BEEN aware?
- gross deviation of care from the ORDINARY person’s practices
Unintentional Homicide: Checklist
1) depraved heart murder: reckless + extreme indifference to human life
2) manslaughter
- C/L: Modern Involuntary (reckless)
- MPC: Manslaughter (reckless)
3) negligent homicide
Felony Murder
- [] Common Law
- [] EITHER:
- [] Agency jurisdiction
- [] All acts in furtherance of felony can be considered…only acts done personally by the felon/cofelons in furtherance of the felony
- [] General Rule
- [] in an agency jurisdiction, a felon or co-felon
must personally have directly by their own acts
committed the killing in furtherance of the felony - [] Exception to General Rule
- [] if robber uses a human shield and cops shoot that
victim, hold robber responsible for that death
even though they didn’t cause it by their own act
- [] if robber uses a human shield and cops shoot that
- [] in an agency jurisdiction, a felon or co-felon
- [] –OR–
- [] Proximate Cause jurisdiction
- [] foreseeable result of the felony?
- [] i.e. the normal causation rules apply
- [] General Rule
- [] if felon or co-felon commits a felony, and the
acts of the felony are the legal cause of a
death, then both felon and co-felons are guilty
of murder - [] must show:
- [] actual (but-for) cause
- [] proximate cause
- [] no voluntary intervening actors
- [] ((looking at the acts of the felony to see if
those acts caused the death in the legal
sense)
- [] if felon or co-felon commits a felony, and the
- [] ((cannot be both))
- [] Agency jurisdiction
- [] Differences under Proximate Cause and Agency Rules
- [] killings by non-felons
- [] police shoot an innocent bystander during gun battle
with felon (exception: human shields)
- [] police shoot an innocent bystander during gun battle
- [] deaths of co-felons
- [] co-felons A and B are in a shootout with the police
during a botched robbery. B makes a run to get away
and the police kill B. Is co-felon A guilty?
- [] co-felons A and B are in a shootout with the police
- [] frolics (foreseeable but not in furtherance of felony)
- [] armed co-felon A en route to an arson decides on his
own to rob a bank to get $ to buy extra gasoline for
the arson. The teller dies. Is co-felon B guilty?- [] proximate cause - guilty if foreseeable
- [] agency - if co-felon was frolicking and did on
his own initiative, then not guilty for his
actions that led to death.
- [] armed co-felon A en route to an arson decides on his
- [] killings by non-felons
- [] EITHER:
- [] MPC Distinction
- [] MPC is a proximate cause jurisdiction, but with a twist.
- [] MPC is proximate cause felony murder jurisdiction, but
MENTAL STATE EXISTS for felony murder in MPC
jurisdiction…
- [] MPC is proximate cause felony murder jurisdiction, but
- [] MPC felony murder is depraved heart murder
- [] murder if…reckless + extreme indifference to human life
- [] such recklessness & indifference are presumed if (in the
course of)…ROBBERY, RAPE, ARSON, BURGLARY, KIDNAPPING, OR
FELONIOUS ESCAPE. (Section 210.2.(1)(b)) - [] can try to rebut the presumption…
- [] MPC is a proximate cause jurisdiction, but with a twist.
Felony Murder - C/L Rule #1: Agency Jurisdiction
If felon or a cofelon personally kills someone by their acts “in furtherance of a felony”, then
Felon and cofelon(s) are guilty of murder.
Felony Murder - C/L Rule #2 Proximate Cause Jurisdiction
If a felon or cofelon commits a felony, and
The act(s) of the felony is/are the legal cause of a death, then
Both felon and any cofelons are guilty of murder.
Differences under Proximate Cause & Agency Rules for Felony Murder
Killings by non-felons
Police shoot an innocent bystander during gun battle with felon (exception: Human shields)
Deaths of cofelons
Cofelons A and B are in a shootout with the police during a botched robbery. B makes a run to get away and the police kill B. Is cofelon A guilty?
Frolics (foreseeable but not in furtherance of felony)
Armed Cofelon A en route to an arson decides on his own to rob a bank to get $ to buy extra gasoline for the arson. The teller dies. Is Cofelon B guilty?
Felony Murder in C/L Proximate Cause Jurisdiction
MUST SHOW:
ACTUAL (BUT-FOR) CAUSE
PROXIMATE CAUSE
NO VOLUNTARY INTERVENING ACTORS
MPC Felony Murder is Deprave Heart Murder
MURDER IF … RECKLESS + EXTREME INDIFFERENCE TO HUMAN LIFE
SUCH RECKLESSNESS & INDIFFERENCE ARE PRESUMED IF [in the course of]…ROBBERY, RAPE, ARSON, BURGLARY, KIDNAPPING OR FELONIOUS ESCAPE. § 210.2.(1) (b)
Limitations on Felony Murder Rule (both C/L & MPC)
- [] 1) Must be inherently dangerous felony (Statute or Fact-Specific)
- [] Two ways to decide if particular felony is inherently
dangerous:- [] A) statutory approach (CA)
- [] statute establishes dangerous felonies
- [] B) Actual Conduct
- [] is the felony dangerous based on the facts of the
case?
- [] is the felony dangerous based on the facts of the
- [] A) statutory approach (CA)
- [] Two ways to decide if particular felony is inherently
- [] 2) Merger Doctrine - Independent Felony (AKA Merger Rule)
- [] felony must be independent of the death itself
- [] Merger Rule
- [] if the underlying felony is a form of assault or
homicide, but attacker didn’t have the mens era necessary
for murder, he shouldn’t be tried for murder. - [] otherwise all felonious assaults resulting in death,
would be tried as murder, regardless of prosecutor’s
ability to prove intent. - [] What crimes merge (i.e. are not independent?)?
- [] assault/battery
- [] any kind of criminal homicide
- [] burglary: breaking and entering with intent to commit
a crime therein- [] depends on the crime
- [] if the underlying felony is a form of assault or
- [] 3) Res Gestae (time, place, proximity)
- [] a felony is considered terminated when the suspect has
achieved a position of relative safety from law enforcement.
- [] a felony is considered terminated when the suspect has
Misdemeanor: Manslaughter Rule
BASIC RULE:
If you commit a misdemeanor, and
In the course of the misdemeanor you cause a death, then
You are guilty of involuntary manslaughter.
LIMITATIONS:
Many jurisdictions have limits similar to those with felony murder, requiring:
Inherently dangerous misdemeanor
Independent misdemeanor
Res gestae
Felony Murder Re-Cap
BASIC RULE (2 variants) –
(1) CAUSE DEATH DURING COURSE OF FELONY (“proximate cause” rule)
(2) FELON or COFELON “IN FURTHERANCE OF FELONY” COMMITS KILLING (“AGENCY” rule)
LIMITATIONS
“INHERENTLY DANGEROUS” FELONIES
“INDEPENDENT” FELONIES
RES GESTAE REQUIREMENT
FINAL PREP
if something is borderline between 2 different types of homicide, talk about both. Do NOT talk about all lesser included offenses, however…
(e.g. if something seems like it could be murder, don’t discuss negligent homicide, but you might discuss volntary manslaughter)
Act Requirement (C/L & MPC)
act must be voluntary
voluntary act = willed bodily movement
(even if orderred to move)
Involuntary Acts Include those done…
BY SOMEONE ELSE MOVING YOU (E.G., MARTIN)
SPASM
REFLEX
CONVULSION
SEIZURE*
* DECINA EXCEPTION
UNCONSCIOUS (E.G., NEWTON)
ASLEEP (E.G. COGDEN)
UNDER HYPNOSIS PER MPC
Omissions (C/L & MPC)
Causation: C/L & MPC
Felony Murder in Proximate Cause Jurisdiction (Flowchart showing acts that cause felonious result are the same acts that cause a death)
Felony Murder in Agency Jurisdiction
Felony Murder in agency jurisdiction: All act(s) in furtherance of felony can be considered
Frolic (Agency) vs Foreseeable (proximate cause)
Rape: Traditional Actus Reus
RAPE is: SEXUAL INTERCOURSE with
(1) FORCE OR THREAT OF FORCE
(2) AGAINST THE WILL
CAUSING RESISTANCE OR
CAUSING REASONABLE FEAR THAT PREVENTS RESISTANCE
(3) WITHOUT CONSENT
Rape: Threat of Force - Who judges whether something is a threat?
Rape: MPC
Rape: Male having sex with female not his wife….
Compels her to submit by force or by threat of imminent death, SBI, extreme pain or kidnapping, to be inflicted on anyone.
MPC ….FORCE is still required for rape.
MPC Gross Sexual Imposition (threat-based rape, force not required)
Rape: What is the modern force requirement?
Rape: Act Requirement: Traditional Resistance
Generally, need proof that the victim “fought back” – Resistance is physical proof of non-consent and force.
Rape: Act Requirement: Modern Resistance
Most states require “reasonable resistance”
California and some other states have done away with resistance requirement. Why?
FROZEN FRIGHT – Victim acts normally, may even seem to consent to sex, but terrorized inside.
Fear is an exception to the resistance req only if it is “reasonable” fear. Why should this be?
Rape: Resistance Requirement EXCEPTION: Reasonable Frozen Fright
If victim doesn’t fight back (i.e. no resistance), prosecution must show that victim was:
(1) incapacitated by fear; and
(2) incapacitation was reasonable.
MPC Rape
Rape: No resistance requirement
Gross Sexual Imposition: sexual intercourse using any threat that would prevent resistance by a “woman of ordinary resolution”
Rape: Act Requirement: Traditional Non-Consent
Rape: Act Requirement - Modern Non-Consent
4 Ways to setup a rule for Non-Consent
MPC Rape: Non-consent not even explicit element of crime
Rape: Special Rules for Non-Consent
Non-consent presumed if:
doctor-patient
psychotherapist-client
priest-penitent
Rape: MPC Mental state
No mental state in MPC = recklessness presumed.
Some defendants will claim they mistook the victim to be consenting when she actually wasn’t. (E.G. Date rape) THIS TYPICALLY DOESN’T SUCCEED UNLESS THE ERROR WAS HONEST AND REASONABLE.
Crimes Against Person
BATTERY
ASSAULT
BURGLARY
ARSON
KIDNAP
C/L Battery
Unlawful and intentional
application of force to another person
causing –
Bodily injury, or
Offensive touching
C/L Assault
ATTEMPT to batter, or
Intentionally cause fear of imminent battery
V is reasonably fearful that V will be battered
MPC Assault
“A person is guilty of assault if he attempts to cause or purposely, knowingly, or recklessly causes bodily injury to another.”
… “negligently causes bodily injury to another with a deadly weapon”
… “attempts by physical menace to put another in fear of imminent bodily injury”
NOTICE HOW THIS DEFINITION MERGES C/L ASSAULT AND BATTERY
Pain = Bodily Injury
MPC Aggravated Assault
“A person is guilty of aggravated assault if he attempts to cause SBI, or purposely, knowingly, or recklessly causes SBI to another under circumstances manifesting extreme indifference to life”
Attempts to cause or purposely or knowingly causes bodily injury with a deadly weapon
C/L Arson
BURNING
THE DWELLING HOUSE
OF ANOTHER
WITH MALICE:
PURPOSELY
KNOWINGLY
RECKLESSLY
MPC Arson
Starting a fire or causing an explosion with the purpose of:
(a) destroying a building or occupied structure of another;
(b) destroying or damaging any property…to collect insurance for such a loss.
NOTICE THE AFFIRMATIVE DEFENSE FOR PART B – WHY DOES THIS EXIST?
C/L Burglary
Breaking and
Entering
The dwelling house of another
At night
With intent to commit a felony inside
Breaking ≠ Damaging
MPC Burglary
Entering
A building or occupied structure
with purpose to commit a crime therein
unless
Licensed or privileged to enter
Structure open to the public
C/L Kidnapping
By threat or use of force, or deception,
the intentional and unlawful confinement
of the movement of a victim or
removal of victim from place where found
MPC Kidnapping
Unlawful confinement/removal
of another
with the purpose of:
Ransom, reward, or hostage
Facilitating felony or flight
Inflict bodily injury or terrorize
Interfering with gov’t
Theft Crimes
LARCENY
LARCENY BY BAILEE
ROBBERY
EXTORTION / BLACKMAIL
EMBEZZLEMENT
FRAUD
FALSE PRETENSES
LARCENY BY TRICK
C/L Larceny
Larceny:
unlawful
taking
of another’s property
without consent
with intent to deprive the person of the property
permanently
MPC Larceny
Larceny: the unlawful taking or exercise of control over another’s movable property with purpose to permanently deprive the person of the property
Larceny: Information = Property
Economic Espionage Act 18 USC §§ 1831-1839 (1996).
Prohibits unauthorized conveyance of “trade secrets” with intent to provide benefits to a foreign gov’t or to provide economic benefit to a third party and to harm the owner of the trade secret.
“Trade secrets” = “all forms and types of commercial, business, scientific, technical, economic, or engineering information.”
Robbery
Larceny by use of force or fear from another’s person or their immediate presence
Force: serious bodily injury
What kind of fears qualify a robbery? (CA code: pg 941)
[Immediate] unlawful injury to the person/property or a relative
Immediate unlawful injury to person/property in the company of the person robbed.
Extortion (Blackmail)
Obtaining property or an official act from another,
With consent,
that was induced by wrongful use
of force or fear
or under color of official right.
What fears qualify an extortion? P. 942
Blackmail “threats”
In USA:
Always blackmail:
Threats of non-immediate personal or property injury
Accusations of crime
Sometimes blackmail:
Defamation
Less frequently blackmail
Exposing “any secret” affecting victim (CA)
Embezzlement: Larceny AFTER legal possession
Honest taking/possession of property
Dishonest/Unauthorized use
MPC: Theft by Bailee
“THEFT BY BAILEE” = “THEFT OF PROPERTY LOST, MISLAID, OR DELIVERED BY MISTAKE”
Fraud
DECEIT IN TAKING POSSESSION OF TITLE AND/OR POSSESSION of PROPERTY
LARCENY BY TRICK
LARCENY BY FALSE PRETENSES
What’s the difference??
2 types of Fraud
LARCENY BY TRICK: Deceit causes possession to transfer to the thief
FALSE PRETENSES: Deceit causes title (+possession, sometimes) to transfer to the thief
Way to tell the difference: Ask if ownership of the property changed hands because of the fraud. If yes, then false pretenses. If no, then larceny by trick.
“Theft” Consolidated View (example)
Example: Ohio R.C. § 2913.02 (2006):
No person with purpose to deprive the owner of property or services, shall knowingly obtain or exert control over either the property or services in any of the following ways:
Without the consent of the owner or person authorized to give consent; (standard larceny)
Beyond the scope of the express or implied consent of the owner or person authorized to give consent (embezzlement, larceny by bailee)
By deception (fraud: larceny by trick, false pretenses)
By threat (extortion)
B) Whoever violates this section is guilty of theft.
C/L Attempt
When a person
With specific intent to commit target offense
Performs any act that constitutes a substantial step toward commission of that offense (that is strongly corraborative of intent)
Punishment for Attempted Crimes
C/L MAJORITY MODERN APPROACH:
punish attempt as less than the target crime
e.g., half of punishment for completed crime
MPC / C/L MINORITY APPROACH
punish same as target crime, except for target crimes punishable by death or life in prison
Attempt: C/L Mental State Requirement
GENERAL RULE:
MUST HAVE SPECIFIC INTENT (i.e. “PURPOSE” under MPC) TO COMMIT THE TARGET CRIME
Attempt: MPC Mental State Requirement
Generally:
Purpose OR Knowledge to cause the target crime
Attempt: MPC Mental State Requirement
GENERAL RULE:
MUST HAVE SPECIFIC INTENT (i.e. “PURPOSE” under MPC) TO COMMIT THE TARGET CRIME
EXCEPTION: CRIMES WITH ATTENDANT CIRCUMSTANCES
What crimes can be “attempted”?
Depraved heart murder?
Involuntary manslaughter, e.g., Station Fire nightclub fire survivors?
Negligent homicide? (No -Tenn)
Assault?
Felony murder?
Attempt: Tests for “Act”
HOW CLOSE TO COMPLETED CRIME?
Last step
“Tending” towards crime
Physical proximity: Near victim, scene of intended crime
Dangerous proximity (reasonable probability crime will be committed): “Reasonable probability” that crime itself would have been committed if not for timely interference
Act that speaks for itself (res ipsa loquitor) (Buying a box of matches intending to use them to burn a haystack…
vs.
Buying matches, taking a match to a haystack, and lighting one of the pieces of straw, and then blowing it out because he’s been discovered.)
Substantial step (looks at whether the acts are reasonably indicative of intent to commit the crime.)
(A substantial step has to be “of such substantiality that unless frustrated the crime would have occurred.”)
MPC Attempt
1) attempt if…purposely does…an….act…constituting a SUBSTANTIAL STEP…
2) substantial step IS strongly corroborative of actor’s criminal purpose
MPC Examples of “Substantial Step” (S.L.E.P.E.R)
Soliciting an innocent agent to engage in crime
Lying in wait, searching for, following victim
Enticing victim to go to scene of crime
Possession of materials (specially designed / no lawful purpose)
Unlawful entry
Reconnoitering (casing)
Attempt Act Tests: Comparing “Substantial Step” to other tests
Most attempt act tests examine how close to the target crime the “attempt” came,
“Substantial step” examines whether the acts – no matter how close in the causal chain to the criminal result – are reasonably indicative of specific intent/purpose to commit the crime.
Attempt: Line-drawing
Why don’t we say very early act – mere preparation – is enough for attempt, but allow for defense of abandonment?
Traditional view: no defense, but closer to last step
Substantial step / mpc view: complete & voluntary abandonment a defense
MPC & C/L Abandonment
Must be voluntary & complete
Not voluntary if motivated by circ.s that increase probability of getting caught or make it more difficult to succeed
Not complete if motivated by decision to postpone or find new objective or victim
MPC 5.01(4)
Attempt: Act Requirement
Majority C/L rule / MPC = substantial step toward commission of target crime (strongly corroborative of actor’s criminal purpose)
Defense of abandonment if voluntary & complete
Attempt: Basic Definition
When a person
With specific intent (ie purpose) to commit target offense
Performs any act that constitutes a substantial step toward commission of that offense
Unless:
Complete & voluntary abandonment
Defense of impossibility
Traditional Impossibility Rules
Factual impossibility – not a defense.
Legal impossibility – is a defense.
What is the difference between factual and legal impossibility?
Legal Impossibility: Examples
John has sex with a young woman, believing her to be 16. She is in fact 19. John is not guilty of statutory rape, even though he thought he was committing that crime.
Joe tries to cast a vote believing he is 17. He is in fact 19 and a qualified voter. Joe is not guilty of attempting to vote illegally.
Impossibility
Objective test: was the crime possible to commit under the given facts?
Legal or Factual Impossibility
Subjective test (MPC): did the defendant believe the crime was possible to commit, regardless of the facts?
Impossibility: MPC/Modern CL
If what D did would have been a crime under the circumstances as he believed them to be, (subjective)
Then the fact that it was objectively impossible (whether legally or factually) to successfully complete the crime is not a defense.
Mitigation: MPC
If conduct charged as attempt is “so inherently unlikely” to result in commission of crime
That neither the conduct nor the actor presents a public danger,
Ct can enter judgment for lesser crime or even dismiss the case.
ATTEMPT: IMPOSSIBILITY DEFENSE
Traditional/objective rules – rejected!
Mpc / modern approach:
Subjective test (did def. Believe crime was being attempted? If yes, then no impossibility defense)
Only pure legal imposs’y is defense (intended “crime” is not a crime).
Possible mitigation for “inherently unlikely” (i.e. wildly implausible) attempts not posing public danger.
ACCOMPLICE: LIABILITY
COMPLICITY IMPOSES LIABILITY ON SOMEONE WHO HELPS A PRINCIPAL COMMIT A CRIME
An ACCOMPLICE IS CONVICTED OF THE SAME CRIME AS PRINCIPAL!!
IF PRINCIPAL COMMITS MURDER, ACCOMPLICE IS ALSO GUILTY OF MURDER
ACCOMPLICE: GENERAL RULE
ACCOMPLICE IS CRIMINALLY RESPONSIBLE FOR PRINCIPAL’S CRIME IF:
(1) SHE HAD THE SPECIFIC INTENT (I.E., PURPOSE) TO AID THE PRINCIPAL;
AND
(2) SHE ASSISTED THE PRINCIPAL
ACCOMPLICE: MENTAL STATE REQUIREMENT
GENERAL RULE: PURPOSE TO HELP THE PRINCIPAL COMMIT THE CRIME (always, MPC)
Knowledge, for serious crimes (Fountain jur.)
Separate, lesser crime of criminal facilitation
Reasonably foreseeable consq.s doctrine for other crimes (Luparello jur.)
CRIMINAL FACILITATION
E.G., N.Y. STATUTE (CB 600a):
If you PROVIDE someone else the MEANS OR OPPORTUNITY to commit a felony –
and you do so KNOWING that you are helping her commit a crime –
And the person actually commits the crime,
that’s “CRIMINAL FACILITATION”
HICKS-THE-GUN-SUPPLIER?
ACCOMPLICE: MENTAL STATE REQ’D FOR CRIMES OTHER THAN CRIME HE PURPOSED TO ENCOURAGE
WHAT MENS REA OF AN ACCOMPLICE IS REQ’D FOR CRIMES OTHER THAN THE CRIME HE PURPOSED TO ENCOURAGE?
IF D HAD SPECIFIC INTENT TO ENCOURAGE AN OFFENSE, HE IS GUILTY OF ANY REASONABLY FORESEEABLE OFFENSE COMMITTED BY THE PRINCIPAL
ACCOMPLICE: ACTUS REUS
ASSISTED THE PRINCIPAL
ACCOMPLICE: ACT REQUIREMENT
(1) PHYSICAL CONDUCT
(2) PSYCHOLOGICAL INFLUENCE
ENCOURAGEMENT
(3) ASSISTANCE BY OMISSION
ACCOMPLICE: DEFENSES
(1) CANNOT BE AN ACCOMPLICE IF YOU ARE THE VICTIM OR IF YOU ARE THE PRINCIPAL PERPETRATOR OF THE CRIME
(2) ABANDONMENT
C/L ABANDONMENT: “NOTIFY PRINCIPAL AND NEUTRALIZE”
ACCOMPLICE MUST
COMMUNICATE HIS WITHDRAWAL TO PRINCIPAL
&
MAKE GENUINE EFFORT TO NEUTRALIZE EFFECT OF PRIOR ASSISTANCE
MPC ABANDONMENT: “NEUTRALIZE OR NOTIFY COPS”
ACCOMPLICE MUST TERMINATE COMPLICITY AND:
WHOLLY DEPRIVE IT OF EFFECTIVENESS IN COMMISSION OF OFFENSE
OR
GIVE TIMELY WARNING TO POLICE OR OTHERWISE MAKE EFFORT TO PREVENT THE CRIME
ABANDONMENT: C/L VS. MPC
Common Law:
“NEUTRALIZE AND NOTIFY PRINCIPAL”
MPC:
“NEUTRALIZE OR NOTIFY COPS”
CONSPIRACY: OVERVIEW
Common law: agreement between 2 or more people to commit a criminal act with purpose to facilitate a target crime
MPC: person is guilty of consp’y if with purpose of promoting the target crime he agrees with another person to engage in criminal conduct or agrees to aid
CONSPIRACY: ELEMENTS
In general, crime of consp’y =
2 or more people
Agree to commit a criminal act
With the purpose of agreeing to facilitate the target crime
And make an overt act towards committing the crime
CONSPIRATORIAL LIABILITY
In some jurisdictions, a conspirator is guilty of:
The crime of consp’y
AND
Any other crimes that are reasonably foreseeable consequences of the consp’y (see Pinkerton/Alvarez)
WHAT IS THE DIFFERENCE BETWEEN AN ACCOMPLICE & A CONSPIRATOR?
Conspirator agrees
Accomplice assists
USUALLY (but not always), an accomplice is also a conspirator.
CONSPIRACY: ACT REQUIREMENT
To have a conspiracy, there must be:
Agreement
Explicit or implicit
“Essential nature” of crime discussed
“Overt act”
No step: some jur
Slight step: some jur & MPC
Substantial step: some jur
CONSPIRACY: MENTAL STATE REQUIREMENT
Generally, conspirator must have purpose (specific intent) facilitating the target crime
CONSPIRACY INFERRED BASED UPON KNOWLEDGE +
Direct Evidence, or
D has a special interest or stake in the venture:
Charges a premium
Provides service or goods with no legitimate use
Unusual volume of business
Or Knowing promotion of serious crime (like US v Fountain?)
CONSPIRACY: MENTAL STATE REQUIREMENT
In forming agreement, conspirator must have purpose to facilitate the target crime (always, MPC)
Can infer conspiracy based on knowledge in limited circumstances (C/L: Lauria)
CONSPIRACY: STATUTE OF LIMITATIONS
A & B purposely agree to commit crime X, but never go through with it?
Can they still be prosecuted?
If no one engages in any activity to further the target crime for the time period equal to statute of limitations of the conspiracy, prosecution is barred.
CONSPIRACY: ONE AGREEMENT, MULTIPLE OBJECTIVES
A, B, C agree to commit crimes X,Y, and Z.
If B is arrested, can he be punished for conspiracy to commit crime X as well as conspiracy to commit crime Y, as well as conspiracy to commit crime Z?
MPC (5.03(3)): no. One conspiracy for crimes all agreed to in same agreement or continuous conspiratorial relationship.
C/L: depends on jurisdiction
MPC: ATTEMPT OR CONSPIRACY
C/L: ATTEMPT AND CONSPIRACY
A, B, C, agree to commit arson.
A, B, and C attempt to commit arson, but don’t succeed.
If B is arrested, can he be punished for conspiracy to commit arson as well as attempted arson?
MPC (5.05(3), p. 1102): Can’t convict for both attempt and conspiracy for same crime, must choose.
C/L: both convictions are possible
CONSPIRACY: PUNISHMENT
A, B, C, agree to commit crime X and C takes a substantial step.
If B is immediately arrested & convicted of conspiracy to commit crime X, what is the punishment?
Maj. C/L: some fraction of the sentence for crime X
MPC / min. C/L: same as target crime X, except for most serious felonies
CONSPIRACY: MITIGATION
A, B, and C – three local high school students – purposely agree to commit the crime of hijacking a nuclear submarine and firing an intercontinental ballistic missile at North Korea,
A changes her mind and never sees B or C again.
Can A be prosecuted for consp’y (assume “no step” jurisdiction)?
Perhaps, but:
MPC (5.05(2): Mitigation permitted for inherently unlikely crimes
Remember that Mitigation exists for attempt too!
CONSPIRACY: DEFENSE - ABANDONMENT
A, B, and C purposely agree to commit crime X,
A changes her mind and never sees B or C again.
Can A be prosecuted for conspiracy (assume “no step” jurisdiction)?
Yes, unless can show:
MPC 5.03(5) / some C/L: COMPLETE AND VOLN’Y RENUNCIATION OF CRIM PURPOSE & THWART THE SUCCESS OF THE CONSP’Y
Other C/L: COMPLETE AND VOLUNTARY RENUNCIATION & SUBSTANTIAL EFFORT TO THWART THE SUCCESS OF THE CONSP’Y
ABANDONMENT COMPARISON
Attempt Abandonment: Complete and Voluntary
Accomplice Liability Abandonment:
(1) Notify Principal and Neutralize
(2) Notify Cops or (Wholly) Neutralize (MPC)
Conspiracy Abandonment:
Complete and Voluntary Abandonment AND Thwart Target Crime
CONSPIRACY: SPECIAL RULES
Victims (No – victims cannot be conspirators (C/L & MPC))
Wharton’s Rule (aka necessary parties rule)
Bilateral v. Unilateral
[Note: there was no reading assigned for these special rules of conspiracy.]
CONSPIRACY: WHARTON’S RULE
If it is legally impossible to commit a crime without 2 or more people involved,
then the agreement between those necessary parties is not a conspiracy.
Eg: adultery, bigamy, dueling…
NOT followed by MPC
CONSPIRACY: BILATERAL V UNILATERAL JURISDICTION
Traditional rule = bilateral
need at least 2 people who genuinely agree to have a consp’y
Modern rule (incl MPC) = Unilateral
Recognizes a “unilateral” conspiracy
C/L PINKERTON LIABILITY “OTHER CRIMES”
When a person conspires with other people to commit a crime;
He is liable
for conspiracy,
for the target crime (if completed),
for any additional crimes of co-conspirators if:
They were in furtherance of the consp’y, or
Reasonably foreseeable (State v Bridges CB 679)
MPC PINKERTON RULE
MPC does not allow for Pinkerton liability!!
(BUT THE FEDS DO).
1 OR MORE CONSPIRACIES?
Prosecution: usually wants to show 1 big conspiracy with lots of people in the tent
Defense: wants to argue separate conspiracies, and that your client is not a member of the conspiracy being presented
Factors often considered in deciding the scope of the conspiracy:
(1) scope of the agreement?
(2) reasonably foreseeable crimes?
(3) does the def. know about the other parties?
CRIME OF CONSPIRACY
IN GENERAL, CRIME OF CONSP’Y =
2 OR MORE PEOPLE
[bilateral v. unilateral jurisdictions]
[special rule on victims]
[Wharton’s Rule]
AGREE TO COMMIT A CRIME
W/ THE PURPOSE OF AGREEING TO FACILITATE THE TARGET CRIME
OVERT ACT?
DEFENSES: OVERVIEW
FAILURE OF PROOF
Involuntary acts – e.g. “DEFENSE” OF UNCONSCIOUS
PARTIAL DEFENSES
Heat Of Passion or EED
DEFENSES TO SPECIFIC CRIMES
ABANDONMENT (ATTEMPT, ACCOMPLICE, CONSP’Y)
IMPOSSIBILITY (ATTEMPT)
JUSTIFICATION = Act is usually a crime, but under the circumstances, the act is the right thing to do
E.G., SELF-DEFENSE
EXCUSE = It is morally/legally wrong to hold the accused responsible under the circumstances
E.G., DURESS OR INSANITY
SELF-DEFENSE REQUIRES
YOU REASONABLY* BELIEVE
FORCE IS NECESSARY TO PROTECT YOURSELF
FROM AN IMMINENT** [**MPC – “IMMEDIATELY NEC’Y”]
AND UNLAWFUL ATTACK;
THE FORCE YOU USE IS PROPORTIONAL TO THE THREAT; AND
YOU WERE NOT THE FIRST AGGRESSOR
RETREAT REQUIREMENT IS NOT APPLICABLE (only relevant if deadly force; “castle” exception)
* MPC DISTINCTION – NO REASONABLE REQ., BUT LIMITED DEFENSE. (See also “Imperfect Self-defense”)
C/L IMPERFECT SELF-DEFENSE
If you genuinely believed that force was a nec’y & proportional response to an imminent and unlawful attack,
But your belief was unreasonable,
=> No imperfect self-defense (Majority C/L)
=> “imperfect self-defense” mitigates murder to voluntary manslaughter (Minority C/L)
MPC IMPERFECT SELF-DEFENSE
purposeful or knowing murder reduces to manslaughter
But imperfect self-defense is not a defense to charges of reckless or negligent killing.
SELF-DEFENSE: RETREAT EXCEPTION
Although use of force is generally justified when it is necessary, some jurisdictions adopt a special rule:
The retreat exception
And, there’s an exception to the exception:
The Castle doctrine
SELF-DEFENSE & RETREAT
In a retreat jur, a D cannot use deadly force if he knows that he can avoid the necessity of using such force with complete safety by retreating
Castle exception: no need to retreat if D is in his own home (or workplace)
In a “true man” jur, retreat is not necessary
defense of others…what if…
You are walking down the street, and
you see a VIOLENT PERSON WITH A KNIFE trying to kill a helpless elderly person, and
you pull out your gun and shoot the violent person to death.
DO YOU HAVE A JUSTIFICATION DEFENSE?
Often, YES – DEFENSE OF OTHERS
That apparently helpless little old lady was a master criminal in disguise,
And the attacker was a police officer arresting him?
Do you have a justification defense?
C/L Alter Ego Rule – if victim could have rightfully used self-defense
MPC & some jurisdictions (if you reasonably believed that victim could have used self-defense. If unreasonable belief, defense is limited).
Defense: C/L Duress
Excuse if
(1) D was coerced to commit crime
(2) by threat or use of deadly force on D (or another person);
(3) threat is imminent;
(4) no other alternative;
(5) actor not at fault (aka clean hands rule);
Not a defense to homicide
Defense: MPC Duress
Excuse if:
D was coerced to commit crime by
Threat or use of unlawful force on him (or another person)
Which a person of reas. firmness
In his situation
Could not resist
And d is not at fault
No req. of imminent harm & deadly force
Does not rule out as defense to homicide
What is the M’Naughten Test of Insanity
- [] D is not responsible if at time of act, - [] D was suffering from “disease” or “defect” (room for interpretation) AND
- [] did not know
- [] the nature/quality of the act
- [] OR
- [] act was wrong (LEGAL or MORAL TEST? IF MORAL, EXCEPTION FOR
DEIFIC DECREES)
What is the MPC Test Insanity (Blake Insanity)?
- [] D not responsible if, at time of conduct
- [] as a result of mental disease or defect
- [] D lacked substantial capacity to:
- [] appreciate criminality (wrongfulness) of conduct (cognitive)
- [] to conform conduct to requirements of the law (volitional)
Intoxication & Insanity
- [] according to lyons, can intoxication, drug addiction, or the like
would not necessarily render you insane - [] Other intoxication defense?
- [] General Rule: voluntary intoxication usually not a defense
- [] some exceptions, if negates mens rea
- [] involuntary intoxication is a defense
- [] General Rule: voluntary intoxication usually not a defense
M/Naughten & Federal Test
- [] D is not responsible if at time of act, D was suffering from
severe defect or disease of mind AND - [] did not know (APPRECIATE)
- [] nature/quality of the act
- [] OR
- [] act was wrong (LEGAL or MORAL TEST? IF MORAL, EXCEPTION FOR
DEIFIC DECREES)
