Criminal Law -list the crime being discussed -for FM or MM, prove the felony or misdemeanor first -conclude after each issue -in multiple choice – pay attention to when the question asks for which of the following isincorrect is incorrect - be be sure to scan the list for colorable issues -Defense of others – applies anytime defendant is thinking about the lives of others (like in necessity nece ssity cases to protect environment, may also have a colorable self defense claim) -Transferred -Transferred intent – anytime defendant doesn’t kill who he intended -Mistake of fact – an innocent act a ct results in a crime or greater crime -Mistake of law – any skipping of a reading or misreading of government material -Self defense – anything defendant is worried about an attack -Duress – any pressure -constant typing -Obama mama -Legality as policy -Gross deviation (reckless) -Step towards killing (merger doctrine) -mere suspicion is not enough (knowingly) for conspiracy and accomplice -plurality requirement (bilateral) -vicarious liability (Pinkerton) -double check the issues listed to make sure you have discussed it
1. Policy a. Purp Purpos oses es of Puni Punish shme ment nt:: i. Retrib Retributi ution on – dese deserve rved d punish punishmen ment, t, reven revenge, ge, debt debt to soci society ety,, sendi sending ng message 1. Criticisms Criticisms:: may not do good, good, is is vengeance, vengeance, based based on on emotion, emotion, punishing those forced into crimes ii. Deterr Deterrence ence – Gener General al or Specif Specific, ic, to deter deter future future behavio behavior r 1. Criticisms Criticisms:: criminals criminals don’t weigh costs/ costs/benefi benefits, ts, crimes crimes are are spontaneous/emotional, punishing one to benefit another iii. iii. Rehabil Rehabilita itatio tion n – defen defendant dant punishe punished d so he can can be trai trained ned not not to to commit commit crimes 1. Criticisms Criticisms:: wrong wrong use of resources resources on least least deserve deserved, d, society society may may not know what is best, assume criminals are “sick,” very costly, costly, prison settings often teach inmates to be more criminal iv. iv. Incapac Incapacita itatio tion n – put put in in jail jail or or execu executed ted to prev prevent ent furthe furtherr harm harm 1. Criticisms Criticisms:: costly costly, ineffective ineffective to to reduce recidivi recidivism, sm, market market for criminal may be created or replaced, can’t predict future behavior, commit more crimes in jail b. Legality: only punished if conduct defined before act, legality also prohibits vague laws, purposes of punishment determine what is a crime, legality provides 1) notice of what is unlawful, 2) confines police discretion, 3) prevents judge and jury creation of new crimes, and 4) criminal law is prospective
c. Over-criminalization : Stigmatize, discriminate, disrespect, resource diverted, ineffective deterrence, lack of consensus regarding immorality 2. Elements: Crime = A.R + M. R. + sometimes (circumstances + result) a. Actu Actuss Reus Reus – every crime requires a voluntary physical act of one’s volition i. Volunta oluntary ry - every everythi thing ng that that is not not invol involunt untary ary,, brain brain engag engaged ed 1. Words alone alone are sufficie sufficient, nt, habit habit are voluntary voluntary,, a status or condition is insufficient, not guilty unless conduct includes a voluntary act (at some time) 2. Possession: Possession: Voluntary Voluntary Act (acquiring) and Omission (not removing it) ii. Invol nvolun unta tary ry (aut automat omaton on)) 1. Refl Reflex ex/c /con onvu vuls lsio ion n 2. Asle Asleep ep/u /unc ncon onsc scio ious us 3. Hypnos Hypnosis is (reject (rejected ed in some some jurisdi jurisdicti ctions ons)) 4. Bodily product not product product of one’ one’ss consciou consciouss thought thought iii. iii. Omis Omissi sion on:: Gen Gener eral al Rul Rulee – no dut duty y to to help help 1. Rationale Rationale – tradit tradition ion of freedom, freedom, diffic difficult ult to to know how much much necessary, necessary, fear of injury 2. Duty Duty – Exc Excep epti tion onss a. Statut Statutory ory duty duty (tax (taxes, es, repor reportin ting g child child abuse) abuse) b. Status Status relations relationship hip (husband (husband/wife /wife,, parent/chi parent/child, ld, innkeeper innkeeper)) c. Contractual Contractual (K) duty duty (life (lifeguard, guard, babysitter babysitter,, or any payment) payment) d. Voluntarily oluntarily assumed assumed care (agreei (agreeing ng to feed feed 92 old man, man, includes preventing others from helping) e. Crea Creati tion on of peri perill (must analyze both) i. Stret Stretchi ching ng out actu actuss reas reas (posit (positive ive act) act) ii. Duty Duty to rescue rescue (excep (exceptio tion n to omissi omission) on),, every injury that doesn’t doesn’t result in instant death = omission to save f. Defens Defenses es – risk risk of harm harm to to oneself oneself,, lack lack of knowl knowledge edge of of relationship 3. Euthanasia Euthanasia – active active euthanas euthanasia ia is prohibi prohibited, ted, passiv passivee is permitt permitted ed b. Mens Rea – the the fact that that someone someone failed failed to help after after creating creating a peril peril can show show intent i. Purpos Purposely ely (spe (specif cific ic intent intent,, intenti intentional onally ly,, willful willfully) ly) – goal goal or aim aim (fits (fits the the 4 purposes of punishment), motive is not required ii. Knowin Knowingly gly (gene (general ral intent intent,, intentio intentional nally ly,, willful willfully ly)) – practi practical cally ly/vi /virtu rtuall ally y certain 1. Includes willful blindness , deliberate ignorance, ostrich defense iii. iii. Reckles Recklessly sly (malic (maliciou ious, s, genera generall intent intent)) – Consci Conscious ous (sub (subjec jectiv tive) e) disre disregar gard d of substantial substantial and unjustifiable risk , gross deviation iv. Negligently – defendant should have been aware of risk (objective) v. Stric trictt liabi iabili lity ty (S/L) /L) – no mens rea, rejected by MPC (but non prison crimes are okay), 1. Determining Determining if if S/L – 1) language language of statute, statute, 2) legisl legislative ative history history 3) public policy (reduce prosecution number, low penalties, etc) 2. Types or or indicia indicia::
3. 4.
5. 6.
a. Public Public welfare welfare offenses offenses – highly highly regulat regulated ed or high risk risk industry (mala prohibitum), affecting public welfare, no mens rea language in statute, large prosecution number, light penalties, b. Morality Morality offen offenses ses – statutory statutory rape, bigamy, bigamy, adultery adultery Vicarious icarious liabilit liability y – Courts Courts are troubled troubled by this concept, concept, precludes precludes one from arguing he was unaware Defenses Defenses – argue argue no actus actus reas, reas, good faith defense defense regarding regarding 1st amendment rights or constitutional challenges (Traci Lords case), entrapment, cannot argue no mens rea regarding mistake of law/fact Rationale Rationale – deter deter risky risky behavior behavior,, public welfar welfaree important, important, ease ease prosecution’s prosecution’s burden Criticisms Criticisms – judges judges making making its its own laws, laws, bad luck luck principle principle,, punishing for things people didn’t know (no retribution)
3. Defenses a. Mistake of fact – is generally a defense only if negates mens rea for material jur y less element , mistake need not be reasonable (though more unreasonable = jury likely to believe, some jurisdictions require a reasonable mistake particularly regarding rape) i. Material elements depend on the harm h arm or evil the offense is designed to protect, what you need to know is what makes your conduct wrong ii. Jurisdictional elements depend on, in order listed, on 1) language of statute, 2) legislative history, history, and 3) policy/common sense 4) in common law – morally wrong approach, one is strictly liable for greater crime (lesser for MPC) , if there is a jurisdictional element then in common law it is unlikely a specific intent crime b. b. Mist Mistak akee of of law law – mistake or ignorance of law is generally not a defense , disagreement is never a defense but bu t disagreement serves as evidence of mens rea, misreading (of a nonmaterial element) is not a defense i. Exceptions: 1. Negates material material element element,, mistake mistake need not not be reasonable reasonable 2. Estoppel Estoppel theories theories – reasonable reasonable reliance reliance on invalid invalid statutes statutes,, judicial judicial decisions, administrative order, official interpretations defense, requires 1) no notice, 2) regulatory offense 3) 3. Lambert defense,
omission, duty based on status ii.
Cultural defense – defense – no defense, may be given sympathy (or harshness) at sentencing
4. Homicide – unlawful killing of another human being Premed. (cool deliberate thought) and malice a. Murd Murder er 1 – Premed. i. Carr Carrol olll – purp purpos osee + prem premed edit itat atio ion, n, no no time time need needed ed to to form form premeditation ii. ii. Ande Anders rson/ on/Gu Guth thri riee – purpo purpose sefu full + preco preconc ncei eived ved des desig ign n 1. Planning 2. Motive 3. Manner
iii. iii. Defe Defens nses es – dimin diminis ishe hed d capac capacit ity y or or int intoxi oxica cati tion on requires malice, it is a dumping ground when there is not enough b. b. Murd Murder er 2 – requires for premeditation or HOP, malice is: i. Intent to kill or express malice (purpose but not premeditated) ii. ii. Inte Intent nt to to caus causee GBH GBH (gra (grave/ ve/gr grie ievo vous us bod bodil ily y har harm) m) implied malice ) – requires 1) conscious disregard of iii. Gross oss reckle klessnes ness ( implied a substantial and unjustifiable risk, and 2) conduct must be gross (magnitude of harm outweighs o utweighs the social utility, Hand approach) 1. Magn Magnit itud udee – hi high likelihood of harm, type or seriousness of danger 2. Soci Social al util utilit ity y – soci social al benefit , cost of alternatives c. Voluntary oluntary Manslaughter Manslaughter (VM) – manslaughter is the unlawful killing of another human being without malice i. Heat Heat of passio passion/P n/Prov rovocat ocation ion – words words alone alone gene general rally ly not enough enough 1. Actual HOP – requires sudden heat of passion (enraged/inflamed) after provocation 2. Legally Legally Adequat Adequatee Prov Provoca ocatio tion n – words alone insufficient, whether a reasonable person would have been provoked to act out of passion a. Categorical Categorical approach approach – observed observed adultery adultery,, extreme extreme assault assault,, illegal arrest, mutual combat, injury of a close relative b. Reasonable Reasonable person person approach approach – In defendant defendant’’s situation situation,, arguable whether physical or emotional charactristics include alcoholism, battered women syndrome, senility, senility, homosexuality, homosexuality, race i. Objective Objective Char Char. (Physical) (Physical) in some jurid, jurid, majority majority,, Camplin ii. Subjective Subjective Char. Char. (Emotio (Emotional) nal) in some some jurid, jurid, Cassassa 3. Inad Inadeq equat uatee Cool Coolin ing g Tim Timee – act immediately follows provocation while inflamed a. Rekin kindli dling b. b. Long Long-s -smo mold lder erin ing g ii. Extrem Extremee emoti emotional onal distur disturbanc bancee (EED) (EED) MPC – requi requires res 1) subj subjecti ectively vely under EED and 2) objectively reasonable explanation for disturbance, reasonableness determined from one in actor’s situation as he believes them to be (w/ both physical and mental characteristics) , likely guilty if from bad personality, idiosyncratic moral values (like racism) is not a reasonable excuse 1. No act of provocati provocation, on, no cooling cooling needed, needed, words words could be be sufficient, can have a mistaken victim, d. Involuntary Involuntary Manslaughter Manslaughter (IM) – mere mere reckless reckless or or gross gross (criminal ) negligence, classified as negligent homicide under the MPC i. Gros Grosss negl neglig igen ence ce requi equire ress 1) defendant (or reasonable person in his situation) should have known the risk , and 2) conduct was gross ii. Reckles Recklesss requi requires res conscio conscious us disr disregar egard d of a subs substant tantial ial and and unjus unjustif tifiabl iablee risk, conduct does not have to be gross (magnitude of harm outweighs the social utility) 1. Social Social utili utility ty – benefit benefit,, cost of alter alternat native ivess
2. Magnit Magnitude ude – high high likeli likelihood hood of of harm, harm, type type of danger danger e. Dangerous Dangerous instrume instrumentali ntality ty doctrine doctrine – one one who causes causes death death while while negligently negligently operating a dangerous instrument (gun, knife, k nife, car, fireworks, dogs) is automatically guilty of involuntary manslaughter f. Felo Felony ny Murd Murder er (FM) (FM) – death occurring during the commission of a felony is automatic (constructive constructive)) murder, no mens rea required and proof of malice is substituted , must prove defendant committed a felony (AR + MR and causation) i. Murder Murder 1 = BARK BARKRM, RM, burgla burglary ry,, arson, arson, robb robbery ery,, kidnapp kidnapping ing,, rape, rape, mayhem ii. Murder 2 = others iii. Limitations: 1. Inherently Inherently dangerous dangerous felony felony – precludes precludes some of of the least least serious serious felonies, focus on the correct underlying felony, only inherently dangerous felonies qualify for felony murder a. Abstra Abstract ct (favor (favorss D) vs. as as committ committed ed (favor (favorss P) 2. Merger Merger Doctrine Doctrine – the felony felony must have a separat separatee or independ independent ent purpose than to just kill or cause grave bodily harm (if malice would have to be proved anyways, then it merges) , all manslaughter would be murder), precludes murder), precludes some of the most serious felonies 3. During During the felony (planning (planning to escape) escape) 4. In further furtherance ance of the the felony felony – unpredict unpredictable able actions actions by a co-felon not in furtherance does not result in FM a. Agency theory – only liable liable for deaths caused by co-fel co-felons ons i. Provocative Provocative Act Doctrine Doctrine – liable liable for making an atmosphere of malice, malice, defense may argue death of co-felon was a suicide b. Proximate Proximate cause cause (i.e. shield shield cases) cases) – a felon felon responsi responsible ble for any death proximately resulting from unlawful activity even from third persons i. Death of co-felo co-felon n - justifiable justifiable (no crime) crime) versus versus apply felony murder (he’s a human being) iv. iv. Critic Criticism ism – no mens mens rea, rea, does does not not suppor supportt purpos purposes es of of punish punishmen ment, t, don’ don’tt really need since statistics are low, low, bad luck doctrine, no proportionality, the other concepts of malice already alread y work, original reasons no longer applicable g. Misdemeanor Misdemeanor-mans -manslaught laughter er rule (unlawf (unlawful ul act doctrine doctrine)) – any unlawful unlawful act not not a felony resulting in death is automatically involuntary manslaughter, must prove defendant committed a misdemeanor (AR + MR), may have to discuss strict liability (the misdemeanor may be a strict liability crime) i. Limita Limitatio tions ns – 1) 1) proxi proximat matee cause cause,, 2) restri restricte cted d for for malum malum in se se (not (not regulatory), 3) dangerousness 5. Causation – requires actual (but for) and proximate (legal) cause , prosecutors tend not to bring cases where causation is questionable, year and a day rule for deaths , felony murder also requires causation a. Actual Cause Cause (but (but for) – link in in the chain chain of causation, causation, includes includes acceleration acceleration theory, must mention both “actual cause” and “but for”
b. Proximate Proximate Cause Cause (legal cause) cause) – sufficie sufficiently ntly direct direct cause, cause, when there there is direct cause the harm is foreseeable and there is no n o intervening act, must mention both “proximate and legal cause” i. Forese Foreseeabi eabilit lity y of of harm, harm, manner manner does does not not have have to to be forese foreseeabl eablee (exce (except pt when engaging in socially useful conduct as in Warner-Lambert/gum Warner-Lambert/gum factory explosion case) 1. Transferred Intent – Intent – does not need to foresee who the actual victim will be, if the transferred harm is more serious than intended, defendant is liable for the more serious harm committed ii. Interve Intervenin ning g Acts Acts (sup (supers ersedi eding ng inter interveni vening ng act) act) – must must arg argue ue both both foreseeability + control and policy 1. Foreseeable Foreseeable – objective, objective, what he he could have seen seen (not (not whether whether he did), if intervening act foreseeable it is likely not superseding 2. Contro Controll and and policy policy – Who had control over control over the intervening act + who do we want to hold responsible (or blame (or blame), ), can throw in purposes of punishment here 3. Acts of nature nature – can be a concurrent concurrent cause with nature a. Routine Routine or ordin ordinary ary pheno phenomen menaa (would (would not brea break k link) link) b. Extraordinar Extraordinary y or freak acts (uncontr (uncontrollabl ollablee and breaks breaks link) 4. Acts Acts by anot anothe her r a. Victim i. Condition Condition - (does not break break link, link, takes the eggshel eggshelll victim as he finds them, even if treatment refused) ii. Acts - (acts (acts can break link link if if victim victim had free will unless “induced,” refusal of treatment does not break link) courts differ on assisted suicide (guilty of assisted suicide versus victim’s act breaks link) b. Medical Care – a rare rare disease disease from from treatme treatment nt can break link i. Neglect Neglect (“natur (“natural al malprac malpractice” tice” does not break link) ii. Intentional Intentional maltreatment maltreatment/gros /grosss neglige negligence nce (would (would break the link) c. Additional Additional Perpetr Perpetrator ator – omissions omissions by others others generally generally do not break the link, courts reluctant to treat omissions as superseding i. Mult Multipl iplee Perp Perpet etra rato tors rs – If either defendant’s act sufficient to cause death then both responsible under acceleration theory, some courts hold first perpetrator liable only for an attempt ii. Relate Related d – co-fel co-felons ons (no break) break) iii. iii. Unrelat Unrelated ed – stranger strangerss (may break break), ), innocen innocentt instruments do not break, third party omissions (who fail to help even with a legal duty) do not break d. Complementar Complementary y Human Human Action Action (joint (joint enterprise enterprise)) – mutual encouragement , Russian roulette, drag racers (generally do not break link) i. Concurrent causes - all defendants who jointly participated are responsible, other courts hold only
the defendant who most directly caused the result to be responsible 6. Attempt – the crime of trying to commit another crime , it is a separate and inchoate crime that merges with actual crime if complete , punishment is the same in some jurisdictions and ½ (or some other lesser amount) in others, a. Actus reus – Gone beyond preparation preparation and makes makes sense sense to to prosecute prosecute i. Firs Firstt ste step p – not not use used d (exc (excep eptt in in poi poiso son n cas cases es)) ii. ii. Last Last step step – comm common on law law (an (and d thus thus no aband abandonm onment ent)) iii. iii. Dang Danger erous ous prox proxim imit ity y – how how much much done done vers versus us how how much much lef leftt iv. Unequiv uivocal ocaliity test – res res ispa loquitur test, loquitur test, defendants acts viewed in the abstract to determine if acts showed an unequivocal intent v. MPC – substa substanti ntial al step step stro strongly ngly corrob corrobora orativ tivee of inte intent, nt, combi combinat nation ionss of dangerous proximity and unequivocality test b. Mens Rea – Purpos Purposee (majority) (majority),, no harm yet yet so want to be be sure it is is their purpos purposee (or knowledge/recklessness in some jurisdictions), only need mens rea for material elements (some jurisdictions), others require purpose for all elements i. MPC – Purpo Purpose, se, or beli belief ef one one will will caus causee a prohi prohibit bited ed resu result lt suf suffic fices es ii. Some Some court courtss allow allow attemp attempted ted S/L S/L – attem attempte pted d felon felony y murd murder er when when cocofelon attempts to kill someone, attempted statutory rape when one tries to have sex with an underage girl but fails c. Impos Impossi sibi bili lity ty – applies when defendant has completed the last step but circumstances prevent completion of the crime i. Fact Factual ual impo imposs ssib ibil ilit ity y – is gener general ally ly no def defen ense se 1. Mistake Mistake of fact fact is a defense defense (someone (someone who doesn’t doesn’t want to to commit commit the crime, no mens rea) ii. Legal Legal impos impossib sibili ility ty – is general generally ly a defens defensee when when defenda defendant nt trie triess to violate a law but no law exists (pure legal impossibility) 1. Mistak Mistakee of law law is gene general rally ly no no defens defensee iii. iii. Hybrid Hybrid – some some can be both both factua factuall and and legal legal imposs impossibi ibilit lity y, depends on danger and who we want to blame iv. iv. MPC – There is no defense of impossibility , if the circumstance as defendant believed them to be , would it have been a crime? If yes, guilty of attempt 1. Mitigati Mitigation on – If there is little or no chance of public danger d. Abandonm Abandonment ent/Re /Renunc nunciat iation ion – not available in common law , must be 1) complete and 2) voluntary abandonment (true change of heart), didn’t take last step yet, helping someone someone commit a crime , it is not a separate crime but is a 7. Accomplice – helping theory for culpability of a substantive offense a. Comm ommon Law – 1st degree (perpetrator, principal), 2nd degree (principal), accessory before the fact (planner), accessory after fact (helps after crime), one using another as an instrument is considered a principal b. Modern Law – Eliminat Eliminates es common common law distin distinctions ctions,, everyone everyone involved involved except except accessory after the fact are culpable for the same punishment, accessory after the fact (a separate crime and not no t an aider/abettor) often gets ½ punishment c. Actu Actuss Reus Reus – help, mere presence not enough (unless there is prior agreement for moral support), words can be enough, help does not have to make a difference,
principal does not have to be aware, aware, under the common law the acts must be capable of helping (but helping (but not under the MPC, this is also called attempted complicity) i. Omission – help help by omission if there is a legal duty to intervene , no general duty to help d. Mens Mens Rea Rea – knowing help and purpose for crime to succeed (mere suspicion is not enough), enough), don’t need to know things the principal does not need to know, principal does not need to be convicted as long as it is proved a crime was committed, (modern approach, knowledge suffices in some jurisdictions for major crimes, knowingly aid in some jurisdictions is recognized as criminal facilitation i. Determ Determini ining ng Purpo Purpose se: 1) stak stakee in the the ventu venture, re, 2) 2) in some some court courts, s, a nexus or a connection showing intent to assist ii. MPC – – Purposely promoting or facilitating the commission of crime iii. iii. Reckles Reckless/N s/Negl eglige igent nt Crim Crimes es (IM (IM situati situations ons)) – requi requires res 1) purp purpose ose to assist principal and 2) negligent regarding the results 1. MPC – accomplice has the same MR as the principal to be culpable iv. iv. S/L Crimes Crimes – Courts Courts split, split, gene general rally ly knowl knowledge edge or or purpos purposee is requi required red e. Reasonably Reasonably Foreseeab Foreseeable le (natural (natural and probable) probable) Doctri Doctrine ne – applies applies if a different different crime is committed, guilty of any natural and reasonably foreseeable offenses but not separate frolics (majority) , generally an accomplice is only responsible for crimes he purposely helps to succeed, under MPC, only liable for the crimes that one purposely helped succeed f. Aban Abando donm nmen entt – not a defense at common law , some jurisdictions require voluntary and complete renunciation with substantial efforts to prevent it i. MPC – allows llows abandonment when complicity is terminated and 1) a deprives plan of effectiveness (makes efforts to stop it) , or 2) inform law enforcement 8. Conspiracy – agreement to commit a crime , conspiracy is a separate and inchoate crime that punishes preparatory conduct (must mention this), lasts until abandoned or objectives have been achieved, a cover up is not part of the conspiracy unless previously agreed upon a. Actu Actuss Reus Reus – an express or implied (concerted action) agreement between qualified defendants , do not need to agree at the same time, do not need to know or have contact with other conspirators, argue that a nod is just mere greeting i. Qualif Qualifica icatio tions ns for for consp conspira irator torss (don’ (don’tt menti mention on these these if if not put in in there, there, ex: if there are 4 people conspiring) 1. Geba Gebard rdii Rule Rule – victims do not qualify (statutory rape, child labor victims) 2. Whar Wharto ton n Rule Rule – if crime by itself requires only 2, there is no (adultery, incest, bigamy, dueling) conspiracy (adultery, 3. Bila Bilatteral eral Rul Rulee ( Plurality requirement ) – at least two least two guilty minds , look for an undercover guy, guy, acquittal of co-conspirators, but special defenses (immunity, insanity, insanity, spousal privilege) is still considered a guilty mind 4. Unilateral Unilateral Rule (MPC) (MPC) – one guilty mind
b. b. Over Overtt Act Act – not required at common law, any act (legal or not) by any conspirator carried out for the purpose of the conspiracy (in some jurisdictions and may not be needed for serious crimes) c. Mens Mens Rea Rea – Knowingly Knowingly agree and purpose for crime to succeed , defendant only needs to know of attendant circumstances that he would need to know for the substantive crime (unless act innocent in itself), in some jurisdictions knowledge is sufficient for serious crimes i. Dire Direct ct Evi Eviden dence ce (of (of pur purpo pose se)) – a cove coverr up can can sho show w purp purpos osee 1. A stateme statement nt or actu actual al agre agreeme ement nt ii. Circums Circumstan tantia tiall evidenc evidencee – purp purpose ose can be inferr inferred ed from: from: 1. Stake Stake in the the ventu venture re (from (from high higher er rate rates) s) 2. No legi legiti tima mate te use use 3. Volume of business business is disprop disproportio ortionate nate or illegal illegal d. Pinkerton Pinkerton Rule (co-conspir (co-conspirator ator liability liability)) – automatic co-conspirator (vicarious vicarious)) liability for all crimes in furtherance of the conspiracy (reasonably foreseeable/natural consequence of conspiracy), co-conspirator liability is not retroactive, rejected by MPC , e. Scope of Conspiracy Conspiracy – defines defines potential potential Pinkert Pinkerton on liability liability,, conspirators each working with the same middleman to create i. Wheel – conspirators multiple conspiracies , to connect the rims, there can be a common venture by arguing each individual has a vested interest in the success of others to keep the business alive conspiracy with different roles along a distribution line ii. Chain – single tied to the success of the operation iii. iii. Both Both – court courtss look look at at wheth whether er grou groups ps at at each each level level know know of overall overall scope scope of conspiracy and benefit from it iv. Brave averman rule ule - a single conspiracy with multiple objectives is one conspiracy f. Abandonment Abandonment and and Renunciat Renunciation ion – abandoned abandoned when all conspir conspirators ators stopped stopped i. To avoi avoid d fur furth ther er co-c co-con onsp spir irat ator or liab liabil ilit ity y – at common law, withdrawal requires notifying co-conspirators with full and voluntary renunciation , still guilty of initial conspiracy ii. ii. To avoi avoid d orig origin inal al con consp spir irac acy y cha charrge – only only allowed in MPC in MPC requires must thwart (renunciation) in addition to notifying co-conspirators (or also police) with full and voluntary renunciation 9. Defenses – Justification (did the right thing) a. Self Def Defeense is a necessity that justifies the use of force when under unlawful attack , no culpability for self defense that injures a third party unless defendant was negligent or reckless in regards to that third person i. Honest an and Re Reasonable ble Fea Fear r 1. Honest (subjective) (subjective) – look at at other motives motives to see see if dishones dishonestt 2. Reason Reasonable able (semi(semi-obj objecti ective) ve) – reasonable person in the 1) physical attributes of everyone defendant’s situation , includes 1) physical (some things are arguable if it is physical or not), 2) defendant’s prior experiences 3) relevant knowledge about the attacker (physical movements/comments of attacker)
b.
c.
d. e.
f.
a. Batter Battered ed woman woman syndr syndrome ome – use experts to determine if it is reasonable or imminent, but can perpetuate stereotypes or encourage self help b. MPC – looks looks at whether whether defendant defendant reasonably reasonably believed believed force was necessary ii. Death Death or Seriou Seriouss Bodil Bodily y Inju Injury ry (com (common mon law) law) – requi requires res a fear fear of death death or grave bodily harm to use deadly force, some jurisdictions include BARKRM/inherently dangerous (MPC) iii. iii. Immi Immine nent nt (and (and unla unlawf wful ul thre threat at)) can be here and now, reasonable person in defendant’s situation, or inevitable , reasonable person standard is generally used (MPC and other jurisdictions uses more subjective approach, if actor reasonably believed it was imminent) iv. iv. No exces excessiv sivee force force – lethal lethal force force only only allo allowed wed when when threa threatene tened d with with lethal force, some jurisdictions allow deadly force against BARKRM, v. Duty Duty to retr retreat eat (som (somee jurisd jurisdict iction ions), s), at commo common n law ther theree was no gener general al duty to retreat, duty to retreat only applies: 1. At the moment moment force force is is used used on him him 2. when when using using deadly deadly force force in in defen defense se 3. If defendant defendant knows retreat retreat to complete complete safety safety is is possibl possiblee - castle exception (or some arguable abode) vi. Initia Initiall Aggress Aggressor or Rule Rule – the the initi initial al aggre aggresso ssorr cannot cannot use use deadly deadly force force but but can use nondeadly force, arguable who is initial aggressor versus instigator , person who raises it to a level of violence is the initial aggressor , self defense can be regained if withdrawal in good faith is communicated to adversary Imperfect Self Defense – in some some jurisdictions, jurisdictions, if one of the elements is missing, mitigate from murder to voluntary manslaughter (i.e. honest but unreasonable fear) Defense of Others – Others – traditionally, third party stands in the shoes of the person in danger (minority) and force allowed only if the one being helped could use self defense, modern and majority rule, only have to reasonably believe use of force is required, analyze the self defense under both approaches i. This issue can be a parasitic issue in necessity cases when defendant is claiming it was necessary to save lives (like because the environment is dying or something) Defense Defense of Property Property – Cannot Cannot use deadly deadly force force to defend defend property property (early (early common common law did allow this to prevent felonies) Law Enforcemen Enforcementt - Police Police cannot cannot use deadly force to to defend property property of others others,, cannot use deadly force to apprehend suspect unless reasonably believed that suspect poses significant threat of death or seriously injury to others or himself , can use non-deadly force in apprehending a misdemeanant i. Citize Citizens ns – have author authority ity to make make citize citizen’ n’ss arres arrests, ts, and use use neces necessar sary y force to prevent a crime, deadly force only allowed to prevent dangerous felonies, citizens can only use deadly force to apprehend a dangerous felon who is warned and correct in her assessment Necessity Necessity (choice (choice of lesser lesser evils defense) defense) – is a justification for one who commits a crime because it is the lesser of two evils , if necessity fails (and feels
unfair) then the alternative is jury nullification , prosecutors will want to argue against allowing this argument i. Choice Choice of of evils evils – must must ident identify ify what what they they are, are, evil evil refer referss to seriou seriouss harm, harm, cannot be economic harm ii. No Apparen Apparentt Altern Alternati ative ve – no know known n lawful lawful alte alterna rnativ tives, es, nece necessi ssity ty is is a defense of last resort, must surrender immediately upon safety in prison escape cases iii. ii. Less Lesser er evi evil is chos chosen en – lives > property , but think about if the property destroyed would possibly destroy life (destroy someone’s crops which leads to his starvation), at common law, necessity is not allowed for homicide (majority) , , MPC and some jurisdictions do allow it , more lives > fewer lives (minority) 1. Honest 2. Reasonable Reasonable – evil avoided avoided must be greater greater than than evil evil caused caused from from society’s society’s view (objective) iv. iv. Immine Imminence nce – at common common law it had to be here here and now, now, othe other r jurisdictions have relaxed this requirement, MPC – imminence is just a factor in determining necessity v. Did not bring bring upon upon self self – is in the the eye eye of the the behol beholder der,, were were sente sentenced nced to be in jail but not to be raped or assaulted, did he bring upon himself by committing a felony, felony, 1. MPC – the the defendant defendant who who creates creates her own own necessity necessity can assert assert self self defense for intentional crimes of necessity but still negligent for starting the earlier crime vi. No contr contrary ary legisl legislati ation on regar regardin ding g the choi choice ce of evils, evils, legi legisla slatur turee likely likely though about this and decided 10. Defenses – Excuses (did wrong thing, but not deserving of punishment), necessity cases generally arise from a threat of a natural phenomenon, duress arises from people, battered woman syndrome may also apply to reasonableness and imminence factors courts are reluctant to allow brainwashing though some do, can be thought to be brought upon one self (or lack other elements) a. Duress Duress/Co /Coerc ercion ion (commo (common n law) law) – applies when a crime is committed due to compulsion of another i. Threat Threat of death death or seriou seriouss bodi bodily ly harm harm – cannot cannot be economi economicc harm harm ii. That is immi imminent nent (some (some juris jurisdic dictio tions ns use use here here and now now,, other otherss have have relaxed it) iii. iii. To defenda defendant nt (earl (early y commo common n law), law), clos closee relati relatives ves/fr /frien iend d (later (later common common law) iv. iv. Such Such a fear fear that that a reason reasonabl ablee person person would would yield yield – reasonable being a man of ordinary fortitude and courage v. Canno Cannott bri bring ng it it upon upon your yoursel selff (i. (i.e. e. join join a gang) gang) vi. Not for homicid homicidee - courts courts divide divided d on if duress duress is a defen defense se to to felo felony ny murder (not for homicide versus allowed under MPC) b. Duress/Coer Duress/Coercion cion (MPC) (MPC) – does not not have to be death death or serious serious bodily bodily harm, harm, can be for homicide i. Thre Threat at of unla unlawf wful ul forc forcee agai agains nstt anyon anyonee – imminence imminence and type of force are factors (sliding scale), scale), cannot be economic threat or threat to
reputation, threat can be to anyone, but the closer the relationship, the more reasonable the threat ii. Reason Reasonable able firmne firmness ss in in defenda defendant’ nt’ss situa situatio tion n (more (more subj subjecti ective) ve) – Imminent is a factor in determining reasonableness, can work against the defendant , defendant’s size, strength, age and health is taken into account iii. iii. Did Did not not reck reckle less ssly ly brin bring g upon upon you yours rsel elf f iv. iv. Can be be used used for for homic homicide ide - court courtss split split on wheth whether er dure duress ss is a defens defensee to felony murder c. Imperfect Imperfect Duress Duress – some juris jurisdicti dictions ons used to to allow a faulty faulty duress duress defense defense to to reduce murder to manslaughter for one who kills on theory that defendant is acting under EED, but there is no imperfect duress anymore , full defense and focuses on mental status at the time of the crime d. Insa Insani nity ty – full i. Compe Compete tence nce – mus mustt be sane sane to stand stand tria trial, l, whether defendant can consult with attorney and understand the proceedings against her ii. M’Naghten 1. At the time of offense Presumed sane 2. Defect Defect or diseas diseasee of of the the mind mind – a – a legal concept (must mention this),, is any abnormal condition of the mind substantially this) affecting mental processes and impairing control a. Hist Histor ory y of of ment mental al pro probl blems ems b. b. Clea Clearr symp sympto toms ms c. Numb Number er of of peop people le who who qua quali lify fy d. Stigma Stigma – do not want want to perp perpetu etuate ate stere stereoty otypes pes e. Sinc Sincere ere – how how eas easy y to to fak fakee f. Canno Cannott bri bring ng upon upon yours yoursel elf f 3. Defendant Defendant did not not know nature or quality quality of acts or that acts acts were were wrong a. Wr Wrong ong – legally legally wrong wrong is is morally morally wrong, though can know know it is legally wrong yet not understand the moral basis of it, b. Look at at acts acts of defe defenda ndant nt after after the the crime crime i. Apolog Apologizi izing, ng, acting acting in shock shock or call calling ing polic policee = knew crime was wrong ii. In a daze, still still doing doing weird weird things, things, or continui continuing ng with life as if nothing happened = didn’t realize it was wrong iii. Comm ommon Law Law Additions Policeman at the elbow test, could not stop 1. Irresi Irresisti stible ble impuls impulses es – Policeman even if you wanted 2. Deific Deific Decree Decree – Knew it was was against against the law law and and against against society’ society’ss morals, and knew what he was doing was wrong, but God told him iv. MPC MPC – same same as M’Nagh Naghte ten n 1 and and 2, lacks substantial capacity (allows partial impairment) to appreciate (knowledge + emotional understanding/affect) the criminality or to conform to the requirements of law e. Dimini Diminishe shed d Capacit Capacity y (DM) (DM) – a partial defense that allows you use an expert to show a defendant could not form the intent (mens rea) due to a lower mental status (courts worried about battle of the experts),
i. ii.
In some some juri jurisdi sdicti ctions ons – no dimi diminis nished hed capac capacity ity defens defensee (moder (modern n trend trend)) Brawner (majority) Brawner (majority) – partial defense allowing diminished capacity to drop a specific intent crime to a general intent crime 1. Determining Determining if if it is is specific specific or general general intent – 1) how much much mens rea (purpose vs. reckless), 2) historically what it is called, 3) there must exist a lesser crime for it to drop down to, presence of a jurisdictional element may suggest it is a general intent crime iii. iii. MPC – alway alwayss use use it, it, can can use use it to drop drop genera generall inte intent nt to to no crime crime f. Into Intoxi xica cati tion on – alcohol or drug use that substantially impairs the mind causing prostration of mental faculties , cannot be used for liquid courage since mens rea was already formed (argue the mens rea was already formed ) i. Involu Involunta ntary ry Intoxi Intoxicat cation ion – is a full full defens defense, e, can can be be from from 1) forc force, e, 2) 2) deception, 3) pathological (a voluntary intake producing unexpected effect) ii. ii. Volun olunta tary ry Into Intoxi xica cati tion on – is a partial defense that was not allowed at common law , modern courts can drop from specific intent (purpose) to general intent (reckless), not a defense to drunk driving since drunk driving is a general intent crime, prolonged use causing a mental disease or defect can result in an insanity defense 1. Determining Determining if if it is is specific specific or general general intent – 1) how much much mens rea (purpose vs. reckless), 2) historically what it is called, 3) there must exist a lesser crime for it to drop down to, presence of a jurisdictional element may suggest it is a general intent crime 2. MPC has the same approach (must mention this) g. Entr Entrap apme ment nt – a full defense when the 1) government unfairly induced the defendant to commit a crime (must be by a government agent ), ), government official includes anyone working with or cooperating with them i. 2) Federal – a subjective standard focusing on predisposition of defendant and allows evidence of bad acts by the defendant (for the jury), can argue is predisposed because the crime was committed, government can provide opportunity for crime, but can bring a motion to dismiss for outrageous government conduct (for the judge), which almost always loses 1. Factors Factors for predisp predispositi osition on – prior crimi criminal nal behavior behavior,, statements, statements, motive, who instigated, level of involvement ii. Or 2) California nia – an more objective test focusing on the conduct of law enforcement to enforcement to see if it may induce a normally law-abiding person under the circumstances to commit offenses , argue if proper investigative techniques are used iii. iii. MPC MPC – uses uses the the Cali Califo forn rnia ia appr approa oach ch but but conduct of law enforcement goes to the judge 11. Rape – unlawful sex without consent by threat of force, fear fear or fraud, resistance requirement has been removed (one multiple choice question on exam), traditionally a mistake only needed to be honest, now reasonableness is also required in some c ourts 12. Death Death penalty penalty
a. Pros – retribution retribution for for one who who takes life to to uphold uphold value of of life, life, deter future future murders, incapacitation to prevent jail murder, historical b. Cons – cheapens cheapens value value of life, life, not a proven proven deterrent deterrent and notoriet notoriety y can encourage encourage murder, life imprisonment equally incapacitates, costs more, cannot correct for errors, potential discrimination (depending on race or location of killing) c. Procedural Procedural – bifurcate bifurcated d proceedings, proceedings, only imposed imposed for intention intentional al murders murders (and felony murders if major participation + reckless indifference to life), must balance aggravating and mitigating circumstances, only allow jurors willing to impose death sentence under proper circumstances d. Constit Constituti utional onal limi limitat tation ionss – due proces process, s, 8th amendment, cannot use mandatory death sentence, must give standards for jurors, canno t execute minors, insane or mentally retarded criminals, equal protections limitations (this is hard to prove)
Criminal Law 1. Actus Re Reus a. Volu olunta ntary b. Omission 2. Mens Rea a. Purposely b. Knowi owingly c. Reckl cklessly d. Negligent e. Stri Strict ct Liab Liabil ilit ity y 3. Mist Mistak akee of of Fac Factt 4. Mist Mistak akee of of Law Law 5. Homicide a. Murder 1 b. Murder 2 c. Volunt oluntar ary y Mansl Manslau augh ghter ter d. Invol Involun untar tary y Mansl Manslau aught ghter er e. Fel Felony ony Murde urder r f. Unla Unlawf wful ul Act Act Doc Doctr trin inee g. Dangero Dangerous us Instr Instrumen umental tality ity Doctri Doctrine ne 6. Causation 7. Attempt a. Mens Rea b. Actus Reus c. Impo Imposssibi sibillity ity d. Aband andonme nment 8. Accomp omplice a. Actus Reus b. Mens Rea c. Reasonab Reasonably ly Forese Foreseeab eable le Doctri Doctrine ne d. Aband andonme nment 9. Conspiracy
a. Actus Reus b. b. Qual Qualif ific icat atio ions ns c. Overt Act d. Mens Rea e. Pink Pinker eron on Rule Rule f. Scop Scopee of Con Consspir piracy acy g. Aband andonme nment 10. Justificati Justification on Defenses Defenses a. Self Self Defen Defense ses/ s/Im Impe perf rfect ect b. Defens Defensee of Others Others/Pr /Proper operty ty c. Necessity 11. Excuse Defenses Defenses a. Dure Duress ss/I /Imp mper erfe fect ct b. Insanity c. Dimi Dimini nish shed ed Cap Capac acit ity y d. Into Intoxi xica cati tion on e. Entrapment
