CRIME LAW OUTLINE
- Purposes of Criminal law
- 3 Pillars of Crime Law
- Act – actus reus
- Thought – Mens Rea – “Bad thought not enough
- 3 Pillars of Crime Law
- Notice – gov’t. projection of the crime
- 4 Purposes of Crime Law – don’t use a single one, use a hybrid of all 4.
- Retribution
- Rehabilitation
- Incapacitation
- Detterence
- Regina v. Dudley & Stephens –
- Actus Reus – Requires Act & Voluntariness
- 2 categories
- Act, OR
- Duty + Omission
- Voluntariness
- If gov’t fails on voluntariness, go back to the most recent voluntary act
- Two kinds of involuntariness
- External Force – EX: Pushed into a lake (No consent allowed)
- Automation – Capable of action, but not Conscious of Will
- Involuntary acts
- Reflex or convulsion
- Bodily movement during sleep
- Involuntary acts
- 2 categories
- Movement under hypnosis
- Bodily movement not the product of an effort or determination of the actor either conscious or habitual
- Omissions – requires a legal duty (not moral duty) and a failure to act
- First, establish that a duty exists, THEN find if the Duty was Breached.
- Types of Legal Duties
- Statute imposes a duty
- Special Relationship
- Parent/child
- Spouse – a spouse is a “co-equal” and can remove their partner’s duty
- Common Carrier
- Dr/Patient
- Family Live-in
- Occasionally employer/employee
- Contractual Duty – privity of K not required – EX: lifeguard owes a duty to the swimmers
- Voluntary Assumption of Duty of Care + Seclusion from others
- EX: Basement Baby Cage
- Put Others in Peril
- Weigh comparative experience to determine if you put someone in peril
- EX: Telling the blind kid the light is GREEN
- Possession
- Framed as an omission – “You had control long enough to create a duty to get rid of control
- Split of Authority – Actual Awareness(Subjective) v. Reason to Know(Objective)
- Receiving – fail to terminate possession
- Status Crimes – Often Unconstitutional (8th amendment)
- Considered “cruel and unusual” to punish someone for “being” something
- Exception – voluntary intoxication will not succeed b/c the actor chose his status
- Mens Rea – Mental State
- Concurrence – The mens rea must occur at the time of the act
- Culpability Standards
- Purposely
- Conduct – Conscious Object
- Attendant Circumstance – Believes or Hopes
- Result – Conscious Object
- Knowingly
- Conduct – Is Aware
- Attendant Circumstance – Is Aware
- Result – Practically Certain
- Purposely
- Recklessness
- All 3 – Consciously Disregards a Substantial and Unjustifiable Risk
- Negligence
- All 3 – Should be Aware of a Substantial and Unjustifiable Risk
- Reasonableness –
- Homicide – Stratifies across all Mens Rea categories
- Strict Liability – To apply strict liability show,
- The conduct is a violation (not a crime) – no possibility of jail time, AND
- The legislature is silent
- EX: Statutory Rape – SL as to the age element – Because Tradition Dictates
- Jury Instructions
- 4 steps to convert statute to Jury Instruction
- Elements – Break the statute into its constituent elements (CAR)
- Link – Link appropriate Mens Rea to each element
- 4 steps to convert statute to Jury Instruction
- Translate – turn to page 60 and translate into Layman’s terms
- Externality ************NEVER forget to add the act – “And the defendant actually and voluntarily did [input statute]”
- Mens Rea Distribution
- Silence – Assume recklessness for all elements
- Front-loaded – if the mens rea is at the beginning, AND there are no subsequent mentes reae, THEN, the first mens rea applies to all
- Internal – if the mens rea is in the middle of the element, it only applies to the subsequent element. All others get “Recklessly”
- Statutory Construction – How to Interpret
- Look for plain and unambiguous language – Lawyers will always find ambiguity
- Rule of Lenity – If any ambiguity – read the statute in the light most favorable to the Δ
- Look for Legislative Intent
- Look for plain and unambiguous language – Lawyers will always find ambiguity
- Look to the MPC
- Exceptions –
- Wildly Disproportionate Punishment
- Redundancy – if the statute doesn’t do something new, why did the legislature pass it.
- Mens Rea Defenses
- Intoxication
- Old Approach – General/Specific Intent
- General – concerned with the act – No intoxication defense
- Specific – must intend the consequence – Intoxication may be used to show inability to form specific intent
- General v. Specific comes up in Intoxication & Mistake of Law/Fact situations
- Modern Approach – MPC – 2.08(4)
- Involuntary Intoxication – viable & complete defense
- If Δ is involuntary or pathologically intoxicated AND
- Unable to appreciation wrongfulness OR conform conduct to requirements of law
- Voluntary Intoxication – Bumps down to R
- Asks – “Had the Δ been sober, would he have been aware of the risk” – just for R, not N
- Mistake of Fact – also folds into Mens Rea Analysis
- Old Rule – required a showing that the mistake was reasonable before it could be a defense – No longer a requirement
- Modern Rule – Can be a defense to any level of mens rea (obviously not Strict Liability)
- 3 ways to Transfer Intent
- Personal – Different Person is hurt – TRANSFERS
- Injury – Different Injury Occurs – Only transfers down, NOT UP
- Route – Odd route occurs – EX: Ricochet Bullet – TRANSFERS
- Use the same Statutory Interpretation for Mistake of Fact as general Mens Rea
- 3 ways to Transfer Intent
- Mistake of Law – Usable if the crime requires knowledge of the unlawfulness of the act – EX: Running from the cops
- Acts as a Defense if
- Reasonable Reliance
- Erroneous Conclusion In Good Faith
- Must make bona fide diligent effort to abide by law
- Acts in Good faith Reliance
- On an official statement of the law
- Contained in Dicrete Vehicles
- Statute
- Judicial Opinion
- Administrative Grant or Interpretation by a Public Officer
- Lawyers are not Officials of The Law
- Reasonable Reliance
- Acts as a Defense if
- Involuntary Intoxication – viable & complete defense
- Old Approach – General/Specific Intent
- Intoxication
- Exceptions –
- Acts like a collateral defense – like Self-Defense
- Causation – Prior to Mens Rea – Can result be attributed to the Δ
- Actual – “But For”
- Concurrent Causes – ask if either cause was a “substantial factor” – if both, you’ve got both
- Proximate
- Standard – Natural & Probable Consequences
- Foreseeable under the totality of the Circumstances
- Too Remote or Too Accidental – Not enough – MPC – 2.03(2)(b) – 138
- Special Situations – all are objectively analyzed
- Acts of Nature – too remote or too accidental
- 3rd Parties – Must anticipate Negligence but not Recklessness
- Eggshell – must be foreseeable
- Suicide – was it foreseeable
- Standard – Natural & Probable Consequences
- Actual – “But For”
- Inchoate Offenses
- Complicity –
- 4 types
- Principal 1 – You did it
- Principal 2 – On the scene & Aided
- Accessory before the fact – Helped Before BUT not present
- Accessory After the Fact – Assisted after crime was complete – not an inchoate offense today – It is now Obstruction of Justice
- Sequencing – Can you convict an accessory if the principal is not convicted
- Old Rule – You Couldn’t
- Modern Rule – You Can
- 4 types
- Complicity –
- Notice – If indicted as a principal, can you be indicted as an accessory
- Good Prosecutor – Charges with both Principal and Accessory
- Advantage to Complicity – Able to prosecute criminals who would not be able to get on principal liability
- Actus Reus –
- Presence is not usually enough – Could be enough it the Presence is intended to aid & the Principal must know of aid
- Affirmative Act or Omission is Required
- Mens Rea – 2 parts
- Intent to Assist Principal – “Help Mens Rea” – level is P – to protect shopkeepers
- Intent that Principal Actually Commits – “Target Offense Mens Rea” – Imports the mens rea from the Principal – “XXX”
- Abandonment of Complicity – MPC
- Must terminate Complicity, AND
- Try to stop the offense, OR Give warning to Authorities
- Attempt
- Relatively New (1784) – Whe prosecute attempters
- Likely to try again
- We don’t want to tie the hands of the police
- Actus Reus
- Majority – Substantial Step – how far removed from lawful conduct
- 7 factors – MPC
- Lying in wait
- Enticing victim to scene of crime
- Reconnoitering
- Unlawful Entry
- Possession of Unique Tools for the Crime – EX: anesthiologist rapist
- Possession of Unique Tools at or near the scene
- Soliciting an Innocent Agent – he’s only innocent if he’s tricked
- Relatively New (1784) – Whe prosecute attempters
- Mens Rea
- Ratchet everything up to PPP
- In Attempt – the Actus Reus and the Mens Rea must line up together
- Attempt & Complicity can occur together –but can’t be convicted of both
- Punishment –
- Complicity – Same punishment as principal
- Attempt – usually ½ punishment of principal offense
- Attempt Abandonment
- Majority – To abandon, the actor must
- Voluntarily abandon – can’t be because of external forces – EX: Hearing the Sirens
- Complete – can’t just be a delay for more favorable circumstances
- Minority – No abandonment after a substantial step is taken
- Majority – To abandon, the actor must
- Impossibility
- Factual – Not a defense – a mistaken belief as to the facts of the situation is not a defense
- Legal – is a Complete Defense – EX: Thinking that something is illegal that turns out to be legal
- Conspiracy – Punishes the “Agreement” to commit a crime
- Actus Reus – agreement is the conduct, the MPC requires an overt act for misdemeanors and less offenses
- Unilateral- only 1 person needs to agree (Ex: agreeing with under cover cop. MAJORITY RULE)
- Bilateral- both must be able to agree (MINORITY RULE). If you cant get bilateral there are fallbacks (attempted conspiracy and solicitation)
- Mens Reus
- Agreement- purposely
- Target Offense- purposely
- Pinkerton Rule (Minority): Imputes substantive liability on the conspirators.
- In furtherance of the crime
- Within the scope of the project
- Foreseeable
- Actus Reus – agreement is the conduct, the MPC requires an overt act for misdemeanors and less offenses
NOTE: If all 3 are met, then conspirators can be charged with the substantive offense
- Size of Conspiracy- 2 analogies
- Chain- on the hook if anywhere in the chain of conspiracy. (Ex: Drug conspiracy: manufacturer, middleman, and distributor all culpable)
- Wheel- All spoke agreements are treated as separate conspiracies.
- Use Pinkerton with the Chain analogy/situation.
- Worton’s Rule- In agreement crimes, can charge for conspiracy only if there is more than the minimum required people for the crime. Ex: Referee in Dueling
- Legal Impossibility:
- If immune from the principle, also immune from conspiracy
- Impossible to conspire with someone who cannot legally conspire
Note: Bright line rule- Impossibility applies to bilateral and unilateral jurisdictions
- Abandonment/Withdrawal/Renunciation
- Withdrawal
- only gets you off for the substantive offense
- Must notify all reasonable members of the conspiracy that you are aware exist
- Renunciation
- Gets you off for conspiracy and substantive offense
- Must report or thwart, must renounce before the substantive offenses
- Withdrawal
- Homicide
- Murder 1 – Premeditation present
- Split of Authority: Actual Reflection vs. Opportunity for Reflection
- Actual Reflection – requires that the ∆ had time to reflect and confirm desire to kill (thinks that he wants to kill and later confirms)
- Opportunity for Reflection – Minority – ∆ had the time necessary to reflect (proof of actual reflection not required)
- Intoxication – interrupts chart (comes after premeditation question before defenses) – speaks to ability to premeditate
- Split of Authority: Actual Reflection vs. Opportunity for Reflection
- Murder 2 – No premeditation – lesser penalty – no reflection
- Mitigating factors – Only available for M1 / M2 – only way to get to VM
- Imperfect Defense – Generally based off of self-defense
- Scrape away objective standard (not reasonable belief)
- Must show that ∆ honestly believed he was acting reasonably
- Insanity doesn’t work for Imperfect Defense – Insanity has it’s own defense / covers middle ground for those alleging insanity but aren’t in fact mentally ill
- Easier than provocation (only subjective) / harder because you have to show you were fearful for your life
- Heat of Passion / Provocation – must acknowledge the subjective provocation then apply objective person / ∆ must meet both tests/ ∆ Burden
- Subjective
- Was the ∆ provoked
- Had he/she cooled down
- Objective
- Would a reasonable person be provoked
- Would a reasonable person have cooled off
- What is the reasonable person?
- Is it a reasonable person with the same disabilities? Most say yes – but impotency doesn’t count
- Harder than Imperfect (Subjective + Objective) / Easier (no need to show fear for your life)
- Subjective
- Imperfect Defense – Generally based off of self-defense
- Murder 1 – Premeditation present
- If you can’t show fear of death, fall back on provocation; if you can’t meet objective test, fall back on imperfect
- Complete defenses are still an option
- Recklessness Plus – Only available in Murder Statutes
- Depraved Heart – Extreme indifference to the value of human life
- Eligible for Murder 2 – mitigators may bring down to VM
- If ∆ brings intoxication – ask – would ∆ have known better if sober
- Messy distinguishing between R+ and R (Use hypos to explain to jury)
- Mitigation: R+ concerned with result element / R concerned with act
- Was your intentional act based on provocation or imperfect defense?
- Voluntary manslaughter is available to get you to super-recklessnes
- Involuntary Manslaughter – to get, must go through R, N, or Reasonable / SL
- No Mitigation / Complete defenses still effective
- Look to statute (varies by jurisdiction, may be Neg or Reck)
- May allow a showing of Neg Per Se to elevate to IM
- Was your intentional act based on provocation or imperfect defense?
- Majority – ∆ guilty when acted with gross negligence
- Minority – Higher showing than majority – greater than gross negligence
- Ultra-minority – ∆ need only act with ordinary majority
- Reckless – Knew or should have known (subjective test)
- Negligent – A reasonable person should (objective test)
- Felony – Murder
- Must only establish elements of the felony, strict liability for murder
- Limited to dangerous felonies (see statute) / violent
- Sexual Assault, Arson, Burglary, Robbery, Escape, Resisting arrest or kidnapping
- State does not have to show intent to kill
- Completed felony not required
- Requires dead person
- No attempted-felony murder
- Rationale – use care when others lives may be in danger
- Must occur during time period – starts substantial act (attempt) and ends with escape rule.
- Escape rule determines the end of time period
- Arrive at safety
- Substantial step > Crime Committed > Leave > Physical Safety
- Why battery doesn’t work — FM only works on crimes when murder is not a normal outcome of the crime
- Curb felony murder doctrine
- Only protects the victim
- FM is Murder 2
- Don’t want to protect the accomplice
- Chart
- Assault & Battery
- Battery (Punch Connect)
- Slight touching, Physical Consequence, Actual Injury
- Slightest touching in a rude or offensive manner, tangible
- Court worried about slippery slope
- Physical Consequence – more than a touching but non-injurious
- Intangibles –
- Majority requires actual bodily injury (MPC)
- Reckless > Act or Omit > Causing Bodily Injury> To Another Person
- Causation always relevant to causation in Homicide or A/B
- Actual injury – required
- Assault 1 (Punch Miss)
- Purposely (act or omit) (to cause bodily injury) (to another person) (w/present ability)
- ∆ has actual ability to cause SBI (loaded gun ready to fire)
- Present ability is closer than substantial step towards completion
- Assault 2 (Punch Fake)
- Purposely (act or omit) (to cause bodily injury or fear) (to another person) (with apparent present ability)
- Victim just must think that ∆ is capable of causing SBI (no actual gun)
- Apparent – Objective / Subjective / None / Both
- Objective – would reasonable person be in fear
- Subjective – was the victim in fear
- MPC is none
- Reckless Endangerment – Assault 2 with Mens Rea of Recklessness
- EX: Coke using mother to be not Assault 2 – Others assaulting mothers to be are on the hook. Mothers have different relationship to the fetus than the rest of the world
- Aggravated Battery
- Four Buckets/Baskets/Categories
- Intent to Murder/Rape/Rob
- Battery with a Deadly Weapon
- How to define deadly weapon
- See Page 379 Note
- Crimes against Protected Status Person
- Cops, firefighters, teachers, bus drivers, young people, elderly
- Split as to whether ∆ knows or should know of special status
- Causes SBI
- Consent
- At CL – could not consent
- Modernity – May consent
- Four Buckets/Baskets/Categories
- Purposely (act or omit) (to cause bodily injury or fear) (to another person) (with apparent present ability)
- Purposely (act or omit) (to cause bodily injury) (to another person) (w/present ability)
- Reckless > Act or Omit > Causing Bodily Injury> To Another Person
- Slightest touching in a rude or offensive manner, tangible
- Slight touching, Physical Consequence, Actual Injury
- Battery (Punch Connect)
- Sports Exceptions
- Top Shelf – Any Injury
- Low Shelf – Any Injury for conduct within the rules
- What is foreseeable – see racist stereotypes spoken during session
- Modern Variants
- Stalking / Domestic Violence (Not on EXAM)
- Theft –
- 4 Types
- Theft By Unlawful Taking
- Larceny – Reckless Taking of Another’s Property with the Intent to Deprive That Person of that Property
- Majority Rule –
- R as to (1)Taking, (2)Property, and (3) Another
- Pure mens rea element – “Purposely intend to affect a permanent deprivation”
- Majority Rule –
- Larceny – Reckless Taking of Another’s Property with the Intent to Deprive That Person of that Property
- Theft By Unlawful Taking
- 4 Types
- Only do externality as to the R elements
- Embezzlement – Taking Another’s Property when you have lawful possession
- Essential Question – “Was he entrusted with possession?”
- Bailor – Bailor who takes property is guilty of larceny b/c he never had “possession” of the contents of the bail.
- Theft By Deception
- Larceny-by-Trick – Gaining Only Possession By Trick
- False Pretenses – Gaining Both Possession and Title by Trick
- Relevant Definitions
- Taking – Trespass on Possessory Right of another
- Only needs Slight Movement – don’t need a huge asportation
- Property – Anything with value – even de minimis
- MPC – Need to show that it cost the owner something
- Can be intangible – EX: emails
- Taking – Trespass on Possessory Right of another
- Constructive Possession – What the true owner retains by having both power and intention to exercise dominion over a thing
- Derivatives
- Robbery – Taking Property From another with the use of Force (Threat of force is sufficient)
- Burglary – Taking Property + an illegal entry
- Defenses
- Claim of Right – (Complete) – “That’s my stuff”
- Most courts require an honest belief that the property in question actually belongs to you
- Some add a “reasonable belief” to this defense
- Wrong Indictment – At CL, if prosecutor charged with the wrong Theft offense, perp got off
- Modern Rule – if prosecutor charges with the wrong Theft Offense, then court will transfer the indictment to the correct one.
- Claim of Right – (Complete) – “That’s my stuff”
- Defenses
- Justifications
- Self-Defense – can apply to almost any offense
- Elements
- Δ must be presented with unlawful force
- Initial Aggressor Exceptions
- Disproportionate Response – if the responder comes at the initial aggressor with a disproportionate response, THEN the initial aggressor can respond with equal or less force
- Baiting – If the initial aggressor is “baiting” the victim to respond with a disproportionate response, this exception is not available
- Withdrawal – withdrawal effectively wipes the slate clean if the withdrawal is communicated either by words or implied by actions
- Disproportionate Response – if the responder comes at the initial aggressor with a disproportionate response, THEN the initial aggressor can respond with equal or less force
- Threat of Imminent Harm (concerned with the Threatener)
- SPLIT – some jurisdictions have moved from imminence to “Immediately Necessary” (concerned with Δ’s act)
- Battered Women
- Imminence Jurisdictions – “Is the reasonable person w/ battered spouse syndrome entitled to use force.”(Similar to Goertz)
- Only successful in 1 in 5 cases (20%)
- Proportional – What force is “Necessary”
- Retreat –
- No Duty to retreat from non-deadly force
- Deadly Force – Split
- Majority – No duty to retreate
- Minority – Some duty to retreat unless you are in your “CASTLE”
- Co-occupants – Majority requires not duty to retreat, Minority requires a retreat within the home
- Invitees – different jurisdictions extend/don’t extend “Castle” doctrine to invitees(pizza guy)
- Mens Rea – Self-Defense mens reas is Reasonable
- Subjective – All jurisdiction have this one
- Did the actual Δ believe self-defense was necessary
- Tough to disprove
- Objective – Majority require this with a split
- Majority – Would a reasonable Person “in that situation” believe self-defense was necessary
- Δ’s interactions with the dead guy are relevant in this approach.
- Minority (Goertz) – Imports a greater amount of the past experiences of the particular Δ into the objective test.
- Majority – Would a reasonable Person “in that situation” believe self-defense was necessary
- MPC mens rea –
- If Δ’s response is reasonable – Complete Defense
- If Δ’s response is negligent – Negligent Homicide(or battery)
- Subjective – All jurisdiction have this one
- Retreat –
- Initial Aggressor Exceptions
- Δ must be presented with unlawful force
- Elements
- Self-Defense – can apply to almost any offense
- Justifications
- If Δ’s response is Reckless – Reckless Homicide(or battery)
- Judge’s role in self-defense – Gatekeeper
- Judge will allow an instruction on self-defense if a “reasonable juror” could conclude that self-defense is allowed
- Imperfect Defense
- Allowed when one of the 3 self-defense elements fails on objective standard
- Self-Defense is available to R & N homicide – because there is still some intentional conduct
- Minority of states do not allow Self-Defense to R & N homicide
- Defense of Others
- At CL – “Others” had to have a special relationship with the defender
- Majority – MPC
- Subjective & Objective standard to
- Defended party faced imminent threat
- Defended party faced unlawful threat
- Subjective & Objective standard to
- Defender used necessary(proportionate) force
- Minority – Alter Ego Rule
- Subjective & Objective Standard to
- All Self-Defense elements from the perspective of the “Defended”
- All self-defense elements from the perspective of the “Defender”
- Defense of Others against Cops – All jurisdictions use the Alter Ego Rule
- Subjective & Objective Standard to
- Defense of Property
- Elements – same 3 elements as Self-Defense
- “Unlawful Entry with property, that is Imminent, and the response is Necessary(proportional)
- When is Deadly Force Allowed
- Majority – Forcible Entry into Dwelling & Reasonable Belief there is an Intent to commit a felony within
- Whom may use? (Split)
- Any Occupant – anyone legally in the dwelling
- Possessor – Those who have Dominion & Control
- Which felonies – some say all, some say just the “hardcore” ones
- Whom may use? (Split)
- Minority – Forcible Entry creates a presumption of unlawful force.
- Majority – Forcible Entry into Dwelling & Reasonable Belief there is an Intent to commit a felony within
- Necessity
- Elements (6)
- Harm to be avoided – Must be Imminent
- Harm Caused by Δ –
- Ratio of Death – in necessity, the harm caused cannot kill more people than the harm being avoided
- Present Intentions must be to avoid harm
- No windfalls
- Reasonable Balance – by Ordinary Societal Standards
- Cannot be any 3rd alternatives which offer a legal or less harmful option
- SPLIT – the Δ cannot be at fault for bringing about the situation
- Excuses
- Duress
- Must be in response to threat of SBI or death
- SPLIT – Most jurisdictions require no balancing of Harm Caused to Harm Avoided. Some Do
- Distinguishing Duress from Necessity
- At CL – Distinction was
- Necessity – arose from naturally occurring consequence
- Duress – Pressure exerted by a person
- Modern Distinction – Accomplice Liability
- Necessity – Accomplices are not culpable when aiding someone acting out of necessity
- Duress – Accomplices are culpable when aiding someone acting under duress
- Insanity
- Majority
- At Time of Act – The Δ was under a defect of reason b/c of a Disease of the Mind
- Capacity Options
- Cognitive – Cannot perceive reality correctly
- Moral – Can’t tell right from wrong
- Majority
- At CL – Distinction was
- Duress
- Elements (6)
- Elements – same 3 elements as Self-Defense
- Irresistible Impulse – Don’t have the power to resist
- EX: Schizophrenia – voices in the head
- Starts to blend with automation involunariness
- Other Approach
- Product Test – Δ not liable of unlawful action was the product of mental illness
- It’s a catch-all
- How to deal with Insane People
- 1st Step – Is the Δ competent to stand trial – “Would that person be able to assist in his defense if the concepts were explained to him as a 6-yr. old person – If not, no trial – just involuntary hospitalization
- 2nd Step – Use Insanity Defense at Trial
- Product Test – Δ not liable of unlawful action was the product of mental illness