Crim Law Tomkovitz FA 2003 2

8/10/2019 Crim Law Tomkovitz FA 2003 2

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A. Actus Reus = culpable conduct. No one is punished for his thoughts alone, need evidence of Ds mental state:Always required, even if strict liability.

1. A bodily movement that is voluntary. Common aw: conscious of and in control of action

! "nvoluntary: acting as an #automation$% act while unconscious &'C (.)*: defines what is #not voluntary$: refle+, act while unconscious, bodily movement that is N -

conscious or habitual product of effort or determination/! Certain e+ceptions: possession requires person to be aware0heave 1nowledge that she has the thing.

2enerally words dont count unless specific instance e.g. conspiracy, treason, complicity/ An 3A4 "34 voluntary action can be the basis for culpability

! person with mental problem ma1ing the choice to not get therapy% person driving even though awarethat he is prone to sei5ures% malfunction of a cruise control device to which driver voluntarily delegated

partial control of the car.! 6hile the act causing the harm was involuntary, the actor is not immune to liability.

What does not constitute involuntary acts: ac1 of control couldnt resist/

7nintentional acts Acts whose consequence are unforeseen. 8orced voluntary action:

! "f someone puts a gun to your head and forces you to do something, it is still a voluntary act, there is nototal loss of determination or action. 9ut you may have a defense for your actions.

2. An omission to act. penal statute: if the omission is specifically criminali5ed e.g. good samaritan laws/ r when one breaches a legal duty to act:

! status relationship e.g. parent to child, husband to wife, master to apprentice, ships master to crew and passengers, inn1eeper to inebriated customers/.

! contractual duty! underta1ing: assumed duty of care. e.g. assuming care of another and secluding the helpless person as

to prevent others from rendering aid/.! culpably placing another in peril: have duty to ta1e reasonable steps to assist the imperiled person.

&ust also be 7N-A4;:! "nvoluntary mission: "f an actor is not physically capable of performing the act, the omission is not

voluntary.


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Mens Rea9. -he accompanying mental state to the actus reus. Designates intentionality0culpability Strict liability: requires no mental state Conditional intent: "ntent can be proved by conditional intent

! 3+p car=ac1ing: #" wont shoot you if you give me your car$ >? proves intent to 1ill.

&'C describes @ different 1inds of material elements: Conduct of the offender/ > action, omission, or series of actions0omissions actus reus/ Attendant circumstances > facts or conditions that must be present during the prohibited conduct. 4esults of conduct/ All elements in the crime including =ustification, defense/ >? one of these categories. Crimes do not have to have all three elements. ;ou can have more than one of these elements.

! 3+p, larceny e.g. ta1es and carries away property of another/.! Conduct > ta1es% carries away

&any crimes have no result element e.g. rape, possession of narcotics/, nothing has to happen as a resultof those actions.

8or others, result is the utmost importance e.g. #death$ as a result of homicide./

Common aw mental state terms: #&alicious$: actual intention to the do the harm that was caused, or rec1lessness. 2eneral intent: intentional action


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Deliberate ignorance and Kno ingly: 6illful blindness doctrine: !no ledge " #ositive !no ledge or deliberate ignorance : 2ov. must prove

beyond a reasonable doubt, that if D was not actually aware, his ignorance was solely0entirely a result of aconscious purpose to avoid learning the truth.

&'C: 1nowledge is established if a person is aware of a high probability of its e+istence, unless heactually believes that it does not e+ist.! limits willful blindness doctrine by requiring an awareness of a high probability that the fact e+ists, not

=ust a rec1less disregard, or a suspicion followed by a failure to ma1e a further inquiry. ? mens rea!"f high penalty and serious stigma >? mens rea.!New offenses li1e public welfare offenses/, must loo1 at the act itself.

$ndicating Strict 'iability:! "f the purpose of the statute would be obstructed by such a requirement >? no mens rea.! Applies mainly to #public welfare offenses,$ statutory regulations where congress has weighed the

possible in=ustice to an individual with the public good0public safety.


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Rape

A. Actus &eus o% &a#eActus reus s#ectrum o% ra#eL physical force,or threat of physicalforce

non physical force penetration only no #force$

A1. Actus &eus o% the De%endantPhysical %orce or threat o% #hysical %orce Ma ority &ule : Common law0&'C approach: An act physical force, or a threat of physical force.

! Can be shown by a totality of accusseds actions Me.g. ta1en to unfamiliar surroundings, ta1ing of car1eys, light cho1ing 4us1 p. @(H/ .

? may notrequire an act of force! 8orce by non physical means psychological threats, intimidation, fear/ dont count.! 3+p: high school principal who threatened to not let victim graduate >? no force p. @@K/

)on3#hysical %orce re4uirements:


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Mitigating Murder to Manslaughteroluntary manslaughter: "ntent minus intent to 1ill but something that ma1es it less culpable/

Common 'a -Ma ority &ule: : */ heat of passion loss of control/ (/ upon adequate provocation categorical or fle+ible/

! rigid: what is provocation defined by categories as a matter of law, =ury decides whether it actuallyoccurred. ma=ority rule/

! %le,ible : what is provocation matter for the =ury! -argeting of the provocation:

Defendant has to direct the rage at the provo1er:Accidental victim of rage directed towards provo1er >? perhaps mitigation

Nonprovo1ing bystanders >? no mitigationDefendants who elicit provocation >? no mitigation

@/ and inadequate cooling time rigid or fle+ible/! rigid: legally adequate cooling time, too long of a time lapse between provocation and 1illing, ma1es

provocation inadequate as a matter of law. ma=ority rule/! 8le,ible: =ury decides what is reasonable0adequate cooling time can find that a time lapse serves to

aggravate rather than cool the defendants agitation/.

Categorical A##roach to Provocation: 'rovocation is defined as certain well defined classes: e+treme assault or battery on the defendant% mutual combat% defendants illegal arrest% in=ury or serious

abuse of defendants close relative% sudden discovery of spouses adultery p. K)G/! 6ords alone are not adequate provocation 2irouard, p. K)I/

urys role: figure out whether recogni5ed provocation occurred.

8le,ible A##roach to Provocation increases the situations where murder is mitigated/ : 'rovocation is anything with the natural tendency to produce passion to the e+tent that it might render a

reasonable person to act rashly and without deliberation.! Note, see ne+t page on reasonable person J individual characteristics

'rovocation is a question of fact to be decided with reference to the peculiar facts of each particular case.! 6ords might be sufficient

ury decides tendency and sufficiency of provocation

MPC 3 7oluntary Manslaughter: *a/ when the defendant acted #under the influence of e+treme mental or emotional disturbance$ *b/ for which there is a #reasonable e+planation of e+cuse$ for the e+treme mental0emotional

disturbance. (/ someone who acted rec1lessly

9 o Ste#s to evaluate:*/ sub=ective: =ury determines whether or not the defendant did in fact act under e+treme emotionaldisturbance i.e. wasnt fa1ing it/(/ ob=ective: from the viewpoint of a person in the defendants situation under the circumstances as he

believes them to be, would a reasonable person find the emotional disturbance reasonable i.e. anunderstandable human response deserving mercy/O


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Unintended Killingsarying lines for the threshold that constitutes criminal homicide. Anything below line is N - criminal.

rdinary negligence-oday, no =uris have this level/

L Criminal negligence or 5grossnegligence6reasonable person standard mayallow indiv. characteristics/

4ec1lessnessrequires an awareness of theris1/

'ossible distinctions between negligence and rec1lessness: Awareness of the ris1 igher degree or ris1

Common 'a : #gross negligence$ criminal negligence/. "n between ordinary negligence and rec1lessness.

MPC: rec1less homicide >? manslaughter are aware of the ris1/ Negligent homicide >? negligent homicide should be have been aware/

Di%%erence bet een Criminal and Civil la in evaluating negligence: &ore than ordinary tort/ negligence is needed for criminal law e.g. &'C negligence is higher/ Contributory negligence can N3 34 be a defense to manslaughter

! -hough it &"2 - influence whether a Ds conduct was a pro+imate cause of the victims death.!


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Felony-Murder Rule &alice for the murder is satisfied by D committing the felony

"&"-A-" N? was it reasonably foreseeable death would result from the felonyO

3+ception: if victim has particular vulnerability that ma1es him more susceptibleCan be satisfied by showing felony was so inherently dangerous that death was readily foreseeable.

8elonies $nherently Dangerous to =uman 'i%e! Different definitions of what is #inherently dangerous$

6hether it generally causes death6hether death is an inevitable or most probable result6hether results in #high probability$ of death

! # $n the abstract $: the court loo1s at the elements of the crime in the statute imits by requiring foreseeability those felonies were it is foreseeable that there is a ris1 of death/. #viewed as whole$ vs. #viewed separately: depends on e+istence of a primary element.

"f no primary element, >? #view separately$ oo1 at the whole statute in the abstract: if an inherently dangerous variety of the crime is grouped

with other varieties not as dangerous, then the whole statute is not inherently dangerous. p. KI@/ oo1 at the specific variety in the abstract

! ;nder the circumstances o% de%endant>s commission:-he =ury decides whether by the facts0circumstances of the particular case whether it was inherentlydangerous in the manner and circumstances in which it was committed these ppl can be deterred/.

Merger Doctrine: nly applies to a felony that is independent of homicide.! "f the felony is integral to or included in fact w0in the resulting homicide >? N 8&4 ! "f N felonious purpose independent of purpose to assault, inflict in=ury, or to inflict pain >? N 8&4 ! "f the use of the felony to 8&4 would undermine legislative purpose to grade the offenseP or ma1e it

so it #elevates all felonious assaults to murder or otherwise subvert the legislature intent$ >? N 8&4;3< &3423 first ( standards/ e.g. assault, assault with deadly weapon, assaultive child abuse/ child abuse where death was result of a severe beating no indepent purpose/ armed robbery is always included in charge of burglary murder.

N &3423: child abuse where death followed from dehydration and malnutrition

$dentity o% 5Killer6 Agency 9heory : ! nly if the act of 1illing is done by a co felon, or someone acting in concert with the felonious scheme

>? 8&4 applies.! -his means if the act of 1illing by a @ rd party not in furtherance of the felonious scheme police officer,

bystander, or victim/ >? 8&4 does N - apply.! 'ossible Alternative for getting conviction:

-his would find felon guilty of AC9;A' M;&D+& N - 8&4Malice based on rec!lessness: when a felon acts with a conscious disregard for life, with an act

li1ely to cause death, and a @rd

party responds reasonablyP the 1illing is attributable to the felon.icarious liability: A felon is liable for any actions of co felons that is in furtherance of the commondesign, so may be liable for co felons 1illing if conduct was #reasonably foreseeable$ complicity/.p. KHF/


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! icarious liability: "f the #victim$ is a co felon, then it is impossible to base defendants liability forthis offense upon his vicarious responsibility for the crime of his accomplice because the accomplicecould not be found liable for his own death/.

Additional 8M& $n%o:

?uali%ications on 8M& p. KGH/: Designated felonies for * st degree 8&4 conviction% rest (nd degree 8&4 Designated felonies for any 8&4 conviction * st or ( nd/ 4equire some 1ind of mens rea not necessarily malice/ but #rec1lessness$ for a 1illing in the course of a

felony >? N - 8&4, since requires mens rea.

+,tension o% 8M& 'ro+ cause theory: defendant is liable for any death that results during the felony that is foreseeable.

! Doesnt matter who the #1iller$ isP! ustification: deterrence, ma1es it very ris1y to commit a felon.

MPC>s a##roach: 43&3&934, N < "N &'CQQ&'C: "f an actor is #engaged in or an accomplice in committed robbery, rape, arson, burglary, 1idnapping,etc$ creates a rebuttable presumption that the actor acted with a gross rec1lessness with an e+tremeindifference to human life murder/.

Misdemeanor3Manslaughter &ule or 7nlawful Act Doctrine/&any states a misdemeanor resulting in death provides a bass for involuntary manslaughter convictionwithout having to show rec1lessness or negligence.imitations:

'ro+imate cause: causation must be shown for 3 34; homicide! e.g. misdemeanor of having e+pired drivers license, no causal connection with death of a motorist.

4egulatory offense: restricted to malum in se as opposed to malum prohibita misdemeanors. Dangerousness: applies to only the misdemeanors that rise to the level of criminal negligence.

! 7nderlying conduct was dangerous to human life under circumstances committed! imited to misdemeanors designed to protect human safety

'olicy =ustifications for 8&4: Deterrence

! Deterrence from committing the felony itself ! Deterrence from dangerous conduct during the felony

'olicy Against 8&4:


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Atte pt Attempt is an #inchoate$ crime conduct designed to culminate in a commission of a substantive offense,

but failed to do so, or have yet to do so/. Common aw: attempt was a misdemeanor 'unishment:

! &odern aw: usual punishment is reduced factor of the punishment for a completed crime one half,one degree less, for some offenses li1e drug offenses punish. is the same/.

! &'C: reduced punishment, but those for first degree carries same punishment. 4easons for 'unishing for attempt:

!


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(. Actus &eus %or Attem#t

Act in furtherance ofthe crime


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B. &elationshi# bet een Accom#lice Princi#al:A. 2uilty principal 4ule04equirement: *eneral &ule: no complicity without guilty principal mens rea and actus reus/. Complicity is a

derivative crime, accomplices liability is dependent on the principals violation of the law. */ principal must have &ens rea for the crime

! 3+p: person encouraging someone to distribute porn who 1nows the victim is under *E, but thedistributor does not 1now the distributor principal/ lac1s the mens rea, so this is not satisfied.

(/ principal must have the Actus 4eus for the crime. @/ 3ffect of 'rincipals Defense e+cuse, immunity, =ustification/

! "f the principals e+cuse0=ustification changes the nature of the act, ma1ing it noncriminal >? imputable! 3+cuses are personal to the principal >? not imputable% =ustifications >? imputable! A =ustification available to the principal may be undelegable >? not imputable! "mputable 3+p: if you see somebody trying to defend himself =ustification: self defense/, and you give

him a 1nife you can ta1e advantage of the self defense =ustification and be =ustified yourself. &'C Approach:

! doesnt e+plicitly deal with e+cuses, =ustifications, or defenses >? uncertain how &'C would deal withthese situations.

! &'C entrapment followed by many states/: provides a defense to accomplice if law enforcementagents induce another to commit an offense using methods #which create a substantial ris1 that such anoffense will be committed by persons other than those who are ready to commit it$ p. I@I/.

Di%%erences in the degree o% cul#ability: "f accomplice has a higher degree of culpability >? cant be guilty of a higher offense than the principal

e.g. woman hired guys to beat up her husband, she had the intent for him to get hurt badly, but the beatingwas not very severe/.! "f only one offense committed, the instigator cannot be convicted of a higher crime.

Alternative: As long as there is a guilty principal, =udge each by his own mens rea.! Accomplice instigator/ can be guilty of a higher crime.

8lip side: instigator can be guilty of a lesser crime. 3+p: A hires 9 to 1ill his wife A > manslaughter% acted in hot blood% 9 > murder% 1illed coolly/.

! 9ased on the notion that action of an intervening actor semi innocent agent/ can be insufficientlyvolitions to brea1 the causal chain, but sufficiently volitional to hold him responsible for his ownactions.

+. &enunciation: &'C withdrawal defense adopted by many states/: "f accomplice terminates his complicity AND wholly

deprives it his complicity/ of effectiveness or gives timely warning to authorities.! Doesnt matter why the accomplice withdraws.

N; adopted this but added must be #voluntary and complete$

Conviction o% the Princi#al: Common law: principal had to be convicted before someone could be convicted as an accomplice. "f

principal acquitted >? no accomplice. &a=ority: dont have to try principal first, and if he gets acquitted, can still try accomplices. Although this

doesnt change having to show the guilty principal at the accomplices trial and flip side still mustestablish guilt principal if principal is convicted/.

&inority: no conviction of accomplices with acquitted principal.

'iability o% the Accom#lice: *eneral &ule: -he accomplice may be convicted of any offense committed by the principal. if ' is

guilty of attempt, accomplice is also guilty of attempt/. &'C Approach:

!


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6hen complicity CANN - be satisfied can we say D committed the crime himselfO

"##$!%#& A'%#& (R$)*D as Princi#al using innocent3agent his #u##et %or committing the crime:

-he innocent irresponsible agent has a lac1 of mens rea. &'C, general rule: A person is legally accountable for the conduct of another person whenP acting with

the culpability required for the commission of the crime, he CA7


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%/culpability

6hen the law allows a defense, to a wrongful action because the actor has shown that he is either free of blame or is less culpable.

"nto+ication:A. involuntary&'C: defines #involuntary$ by defining what is voluntary into+ication: #1nowingly ingests substance

which he 1nows or ought to 1now negligence/ has the tendency to cause into+ication.A. "s a defense when: */ Negates a mens rea element of the offense &'C% Bingston/ (/ Creates a state of mind temporary or permanent/ that meets the test of legal insanity for the =uris. "n

other words, a substantial incapacity to appreciate the criminality of his conduct or to conform to the law.Common aw, &a=ority 4ule, and &'C/.! A claim that the defendant would not have formed the intent, had he not been into+icated is N - a

defense.9ut D didnt have N self control% the drug didnt create intent, D did% D made a detterable choice.

9. oluntary */ Negates a mens rea of the offense (/ 6hen it produces a permanent condition brain damage/ sufficient to meet the test of legal insanity.

>? this is an $)SA)$9< de%ense ariations on what mens rea it cant be used as a defense for:

! &a=ority rule: defense for specific intent but not general intent2eneral intent > intention to engage in the act some intent to do further act, intent for an additional intent over and beyond theinitial act. defense

4ec1lessness, neg. N defense

'urpose,1nowledge J4ec1lessness> defense

"nto+ication is N3 34 a defense to negligence.


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$nsanity S#ectrum: No "nsanityDefensehandful ofstates/

8ederal )aughtenA person is not guilty by reason of insanity if: */ at the time of the committing of the act (/ the party was labouring under such a defect of reason from, from disease of the mind Mmodern: mental

disease or defect @/ as not to 1now Meither :

! a/ the nature and quality of the act, or ppl who are delusional choc1ing someone but believe is squee5ing lemons even for < crime li1e statutory rape, have to intend to engage in the act, if you dont 1now what

you are doing, cant be guilty.! b/ that he was doing what was wrong

3+plained: -o be culpable, the defendant had to have 1nown that he was doing a wrong or wic1ed act.

! Distinguish from: whether the accused 1new he was doing in reference to the law of the land.ignorance of law not mista1e/.

&ental abnormalities arent enough, must be mental disease or defect.

M>)aghten irresistible im#ulse:9la1e0Davis standard: */ incapable of distinguishing between right or wrong (/ unconscious at the time of the nature of the act he is committing @/ where his will, has been so completely destroyed that his actions are not sub=ect to it, but are beyond

his control. irresistible impulse ! Critique: standard is too demanding


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MPC a##roach:A person is not N2 if: */ at the time of such conduct (/ as a result of mental disease or defect @/ he lac1s substantial capacity either:

! a/ to appreciate the criminality Mwrongfulness of his conduct or ! b/ to conform his conduct to the requirements of law.

"mportant Characteristics:! #substantial capacity$

a capacity of some appreciable magnitudeP doesnt require a total lose of control.! #appreciate:

more than =ust 1nowing what he did was wrong this requires an emotional understanding andappreciation that something is wrong as opposed to =ust being able to verbali5e it/.

Durham 5#roduct6 standard: Not guilty by reason of insanity if:

-he defendants actions are the product of the mental disease0defect. "t must be a causal lin1, #but for.$ 9ut for having the disease he wouldnt have committed the act.

! ustification: dont want to punish ppl for having an illness

! Critique: defendant isnt claiming he couldnt stop himself, but simply that he wouldnt have done ifhad not been ill.

(urden o% Proo%: All =uris have presumption of legal


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Auto atis - +ane and "nsaneuris split between recogni5ing insanity and automatism as separate defenses and as classifying automatismas part of the insanity defense.

Defendants optionsO */ &a=ority view: D may elect to plead either insanity, involuntariness, or both.

! ustification: "f no actus reus, isnt fair to discriminate between why. (/

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Crim Law Tomkovitz FA 2003 2