Criminal Law Outline II

8/13/2019 Criminal Law Outline II

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Criminal Law Outline


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Theories of crime.

1. There are 5 recognized principles of punishment. First 4 are utilitarianprinciples of trying to make the world a better place.

a. General Deterrence; Punish a particular D to deter others fromcommitting crimes.b. Specific Deterrence; punish this D to discourage him from

committing crimes later.

c. Incapacitation; locking someone up to physically prevent them fromcommitting additional crimes.

d. Rehabilitation; Treat the D, teach him so that he wont commit acrime in the future.

e. Retributive theory; we punish them because they deserve it.i. The way that we determine what they deserve

1. Harm; what did they do.2. Culpability;a. Here think about if the D made a bad decision

was it done on purpose or not?

Every doctrine can be viewed with how well do they promote these aspects.

Sources of Criminal Law1. Common Law Crimes: Created by the judiciary in the absence of a statute

defining the offense.

a. No federal common law crimes;statutes govern Fed criminal lawstrictly.

b. Majority View Common law crimes retained; Majority of satesretain common law crimes either implicitly or by express Retention

Statute.

c. Minority view (modern trend) common law crimes abolished;Minority of states have abolished common law, either by statute or

impliedly by the enactment of comprehensive criminal codes. These

states nevertheless retain the various common law defenses such as

insanity and self-defense.

2. Statutory Crimes; State legislative statutes are the primary source ofcriminal law. Many either having adopted, or are currently drafting

comprehensive criminal codes.

3.

Constitutional crimes;Levying war against the US, adhering to enemies ofthe US or giving them aid or comfort, are all crimes under the constitution.

Cannot be convicted unless two witnesses to same overt act, or confesses.

4. Administrative Crimes;legislature may delegate to an administrativeagency power to prescribe rules.

5. The Model Penal Code (MPC); Although not a source of law, the MPC was ascholarly endeavor to compile a comprehensive and coherent body of

criminal law. Since its publication in 1962, the MPC has influenced the


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drafting of state criminal statutes. Due to its enlightened position on many

different issues, the MPC may be the single most important source of general

criminal law.

Classification of Crimes;At common law all crimes were divided intothree classes: Treason, felonies, and misdemeanors.

1. Felonies and Misdemeanors; Most states now classify as felonies all crimespunishable by death or imprisonment exceeding one year.

a. Misdemeanors;crimes punishable by imprisonment for less than oneyear or by a fine only.

b. Felonies at common law; only felonies at common law weremurder, manslaughter, rape, sodomy, mayhem, robbery, larceny,

arson and burglary. All others were considered misdemeanors.

Principle of Legality Void for Vagueness Doctrine; Dueprocess clause in Constitution in 5thand 14thamendments has been interpreted by

the Supreme Court to require no criminal penalty without fair notice that conduct is

forbidden.

Fair Warning;Statute must give a person of ordinary intelligence fair noticethat his contemplated conduct is forbidden by the statute.

Arbitrary and Discriminatory Enforcement must be avoided; Statutemust not encourage arbitrary and erratic arrests and convictions.

o

Constitutional Limitations on Crime creation;Article I of theconstitution places 2 substantive limitations on both federal and state legislatures;

1. No ex post facto laws; Supreme Court has defined an ex post facto law asone that retroactively;

a. Makes criminal an act that when done was not criminal.b. Aggravates a crime or increases the punishment thereofc. Changes the rules of evidence to the detriment of criminal D as a class;

or,

d. Alters the law of criminal procedure to deprive criminal D of asubstantive right.

2. No bills of Attainder; this is a legislative act that inflicts punishment ordenies a privilege without a judicial trial.

Interpretations of Criminal Statutes1. Plain Meaning Rule; When statutory meaning is plain and its meaning clear,

the court must give effect to it even if the court feels that the law is unwise or

undesirable.


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a. Exception; If the court believes that applying the plain meaning of astatute will lead to injustice, oppression, or an absurd consequence

2. Ambiguous Statutes Strictly Construed in Favor of D;Rule of lenityrequires that an ambiguous criminal statute must be strictly construed in

favor of the D. Ambiguity is different than Vagueness. Ambiguous is one

susceptible to two or more equally reasonable interpretations. Vague is sounclear as to be susceptible to no reasonable interpretation.

3. Expressio Unius, Exclusio Alterius; The expression of one thing impliedlyindicates an intention to exclude another.

4. Specific Controls the General, the More Recent Controls the Earlier;More specific statute will be applied rather than the more general if they deal

with the same subject. Likewise a more recent statute will be applied over an

older statute dealing with the same subject.

5. Effect of Repeal; At common law, the repeal or invalidation of a statuteoperates to bar prosecutions for earlier violations. However does not set free

someone who has been prosecuted and convicted.

a. Saving Provision; many new codes include a provision that crimescommitted prior to the effective date of the new code are subject toprosecution and punishment under the law as it existed at the time

the offense was committed.

Merger:When can a D be convicted of multiple crimes for the same act.1. Two contexts.

a. Lesser-included offense; is a crime that necessarily includes all theelements of a greater crime.

i. Larceny is a lesser-included crime of robbery.ii. A lesser-included offense will merge with the greater offense.

iii. Exam: note the merger, but discuss both offenses together.b. Inchoate offenses.

i. Solicitation and attempt, merge with each other and mergewith completed offense.

ii. Conspiracy does not merge.Essential elements of crimes.

1. Physical Act requirement Actus Reusa. There is a basic rule; without an act you cant have a crime.

i. We dont punish thought crimes.b. What is an act?

i. Def= a voluntary bodily movement.ii. 3 types of movements that are not considered voluntary

acts.

1. Movement is not the product of the actors volition.a. Someone else moves you.

2. Sleep Walking; or other unconscious movements.


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3. Reflexes or convulsionsa. Careful, a seizure is not a voluntary act but

driving a care knowing you have seizures, and

not taking your medication, that is a criminal act.

c. Omissions rule;i. For an omission to be a crime you need three things.1. A legal duty to act; Generally we dont have an

obligation to act, except where the law imposes a legal

duty to act. There are 5of them.

a. Statutory duties; created by statute.i. Some states might have a Good Samaritan

statute.

ii. Common duty is that of filing a tax return.iii. Other common one is duty on some

professionals to report child abuse.

b. Duty imposed by contract.i. Babysitterii. Lifeguard

iii. Doctoriv. All have duty because there is an explicit

or implicit agreement.

c. Duty created by status relationship.i. Either duty of one spouse to help the

other spouse.

ii. Duty of parent to help a child. (only two)d. Voluntary assumption of care.

i. If you start helping, you may have anobligation to continue.

ii. Rationale is if you start and then start youcould leave them in a worse situation.

e. Duty created by creation of the peril.i. If the problem is my fault, I may have a

duty to help.

2. Knowledge of the facts giving rise to the duty.a. If your child is drowning but you dont know its

your child then no duty.

3. You need the ability to help. (Reasonably possible toperform)

a. Careful here: not always the most obvious way tohelp, just any way to help.

d. Possession as an Act;Criminal statutes criminalize the possessionof contraband generally require only that the D have control of the

item for a long enough period to have an opportunity to terminate the

possession.


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i. Need not be exclusive possession; Can also be constructive,meaning that it is located in an area within the D dominion

and control

ii. State of Mind Requirement; Absent a state of mindrequirement in the statute, the D must be aware of his

possession of the contraband, but need not be aware of itsillegality or true nature.

1. Many statutes and MPC;both add knowingly andintentionally state of mind element to possession

crimes. As such the D must know the nature of the

possessed item.

a. D may not consciously avoid learning thenature; knowledge or intent may be inferred

from a combination of suspicion and indifference

to the truth.

2. Mental State Requirement Mens Rea;Most important part of examprobably.

a. Common law mental states.i. Specific intent; Crime requires not just desire to do the act,

but the desire to achieve a specific result.

1. Specific intent crimes, most likely to be tested on.a. Assaultb. First degree premeditated murderc. Embezzlement; intent to Defraudd. False pretenses; Intent to defraude. Larceny; Intent to steal anotherspersonal

property.

f. Robbery; Intent to commit a robbery from aperson by force.

g. Forgery; Intent to Defraudh. Burglary; Intent at the time of entry to commit a

felony in the dwelling of another.

i. 1stDegree murder; premeditated intent to kill.(where defined by statute)

j. Solicitation; Intent to have the person solicitedcommit a crime.

k. Conspiracy; Intent to have the crime completed.l. Attempt; Intent to complete the crime.

ii. Malice; when a defendant acts intentionally, or with recklessdisregard of an obvious or known risk.

a. Most famous types.i. Murder

ii. Arsonb. These crimes are not open to Specific intent

Defenses.


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iii. General Intent; Defendant need only be generally aware of thefactors constituting the crime. Need not intend a specific result.

a. Usually inferred just form the doing of the act.i. Battery

ii. Forcible Rapeiii. Kidnappingiv. False imprisonment

b. Transferred intent; If D intended a harmfulresult to a particular person or object and, in

trying o carry out the intent, caused a similar

harmful result to another person or object, their

intent will be transferred from the intended

person or object to the one actually harmed.

i. Defenses; any defense that the actorcould have used against the asserted

victim.

1. Transferred Intent does notapply to Attempt.c. Motive Distinguished;Motive is distinct from

the intent to commit a crime.

i. Motive is generally immaterial to CrimLaw.

iv. Strict Liability; No intent crimes. Only matters that the actwas engaged in.

1. Come in two different types;a. Public welfare offenses;

i. Morality related,ii. Or regulatory related with small penalty.

b. Statutory Rapei. Only strict liability crime with a severe

penalty.

2. Generally held as constitutional;a. Exception is the case in CA with the strict liability

crime of not registering as a felon.

v. Common law mental states, and Mistake1. Rules about mistake are rules to help you apply

common law mentalities

a. Mistake of fact; (Mistake must negate the stateof mind.)

i. Defense depending on the mental state ofthe crime and on whether the mistake

was reasonable or unreasonable.

1. Specific intent;Any mistake willbe a defense.


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2. General Intent and Malice; Onlya reasonable mistakecan be a

defense.

3. Strict Liability;No mistake willever be a defense.

ii. Another way to look at it.1. Reasonable mistake is a defense toany crime other than Strict

Liability.

2. Unreasonable mistake is only a Dto Specific Intent.

b. Mistake of Lawi. Is not a Defense!!!

1. Exception: When the statutespecifically makes knowledge of

the law an element of the crime,

then mistake of a law would be adefense.

a. Very few crimes that dothis.

2. Statute not reasonablyavailable: if it was never

published or made available

another way.

3. Reasonable reliance on Statute orJudicial decision that is later

declared unconstitutional or

overruled.4. Reasonable reliance on official

interpretation or advice;

a. Common Law; No Defenseb. MPC: Defense when the

statement came from one

charged by law with

responsibility for the

interpretation,

administration, or

enforcement of the law.

b. Model Penal Code Mental States;(4 types of mental statesdefined by MPC)

i. Purposely(Intentionally): Ds conscious object to cause aneffect.

ii. Knowingly:D is awareof his conduct, has knowledge.1. Also satisfies mental state of a statute that requires

Willful Conduct.


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iii. Recklessly:When the D is aware of and consciouslydisregards a substantial or unjustifiable risk.

1. Involves Objective unjustifiable riskelement, and2. Subjective awarenesselement

a. Must constitute a gross deviation from thestandard of care that a reasonable person wouldexercise.

b. Act performed recklessly is also performedwantonly.

iv. Negligently: When the D SHOULD have known about(failed to be aware of) a substantial and unjustifiable risk.

1. Constitutes a substantial deviation from thestandard of carethat a reasonable person would

exercise.

a. Objective standard as to if the D had taken a veryunreasonable risk in light of the usefulness of his

conduct, their knowledge of the facts, and thenature and extent of the harm that may be

caused.

2. Violation of a statute or ordinance as evidence ofnegligence.

a. Violation of a statute or ordinance may beevidence of liability.

v. Mistake under MPC1. Ask does D mistake negate the mental state.

a. Purposely: Did he mean to do it.b. Knowingly: Did he know what he was doing.c. Recklessly: Was he aware of the risk.d. Negligently: Was the risk unreasonable.

2. Mistake of Law is not a D.c. Analysis of Statutes using Fault Standards

i. State of mind applies to all material elements of Offense;1. If a Statute does not indicate if the Mens Rea

requirement applies to all elements of the offense, then

the specified state of mind applies to all material

elements of the offense, unless a contrary purpose

appears in the statute.

ii. General state of mind requirement recklessness; If the statutedoes not include a state of mind requirement, the D must haveacted with at least recklessness with regard to each material

element of the offense.

1. Under MPC a higher state of mind automaticallysatisfies a lower mental state requirement of a statute.

2. Because a standard of recklessness is assumed wherethe state of mind is not mentioned, if a lower standard

of negligence will satisfy liability, or if a higher standard


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of knowledge or purpose is required, those standards

must be indicated in the language of the statute.

d. Vicarious Liability Offenses;Cases that dispense of the Actus reasrequirement, but retain the Mens Rea element.

i. Limitation on Punishment;General trend is to limit vicariousliability to regulatory crimes and to limit punishment to fines.

ii. Implying Vicarious Liability from underlying strict liabilityoffense;Mere fact that the underlying offense is clearly a strict

liability offense should not imply a legislative intent to impose

vicarious liability.

3. Harmful Result and Causation Requirement; These questions tend to bevery fact specific.

i. 2 types and you need both1. Actual Causation; D is an actual cause if the result

would not have happened but forthe D conduct.

a. If not for the D would this have happened?i. Yes- Then actual cause.ii. No- then actual cause.

b. Note: accelerating the death is still a but forcause.

i. Person stabbed and bleeding to death,another person comes along and shoots

him still actual cause.

c. Common Law Year and a Day rule2. Proximate Cause: If the bad result is a natural and

probable consequence of the D conduct.

a. In order to determine need.i. Foreseeable

ii. Fairnessb. Defendants are generally not responsible for

unforeseeable intervening events.

i. Careful with doctors, because a degree ofmedical malpractice is foreseeable

usually.

c. Eggshell victims are foreseeable.i. Take the victim as you find them.

4. Concurrence: D must have the mental state at the time he engages in the act.a. Usually comes up in the context of larceny and burglary.b. To resolve these issues, usually only need to compare carefully the

acts and the mental state.

i. Consider the mental state at the time that he did each actseparately.


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Specific Crimes( the way to answer criminal law questions is simple; identifythe crime, list the elements of the crime, apply the facts to those elements.)

Assault and Battery;

1. at Common law.a. Battery; unlawful application of force to another resulting in either

bodily injury or an offensive touching.

i. Mental state is General Intent (criminal negligence suffices).ii. Indirect application of force is sufficient.

b. Assault; an attempted Battery or the intentional creation other thanby mere words, of a reasonable fear of imminent bodily harm.

i. Mental state is Specific Intent.ii. Must be the intentional creation of a reasonable apprehension

in the mind of the victim of imminent bodily harm.

c. In many states these crimes have been combined into just assault.d. Some things can turn and assault and battery into an aggravated

battery. ( or an aggravated assault.)i. Presence of a weapon.

ii. Seriously bodily injuryiii. Victim is a child. (or peculiar vulnerability.)iv. If the intent is to commit a robbery or a rape.

Homicide; Common Law;(Year and a day rule; death must occur within a year and

a day of the homicidal act. No longer the rule neither in most states nor in the MPC

but it is the old common law rule.)

1. Murder;Causing the death of another person with Maliceaforethought(Key is the Malice aforethought. Really a question about

mental states. )

i. It is a term of art that means 4 things under common law.1. Intent to kill;Test is going to look at what mental state.

The question might tell you the D mental state.

a. Otherwise there is two ways to determine the Dmental state

i. Look at the conduct; if there are obviousactions leading towards the intent to kill.

1. Actions that arent too obviousthen argue it both ways, if

intentional then it is murder,otherwise it is this other crime and

argue that.

2. Or by putting words in the victimsmouth.

b. Also need to discuss transferred intent.


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i. Take the intent that existed or theplanned victim and transfer it to the

victim that was actually harmed.

1. Can come up in almost any crime,but usually murder.

ii. Exception; you dont transfer the intentunless the actual harm occurred (so itdoesnt work for intent. )

2. Intent to inflict great bodily harm.3. Extreme recklessness.

a. Depraved Heart murder.4. Felony Murder

a. There is a statutory exception under murder thatcreated 1stdegree murder.

i. Difference between 1stdegree and regularmurder, is that 1stdegree is meditated

and deliberate.1. Even though created by statute we

still discuss it with common law

murder.

ii. How much planning? That is an issue forthe jury. Be prepared to argue both ways.

2. Statutory Modification of Common Law Classification;i. To be changed form 2nddegree to 1stdegree the murder must

be proven to be part of;

1. Deliberate and Premeditated Killing;2. First Degree felony murder (see MPC for specifics)

Manslaughter

1. Voluntary manslaughter: intentional killing committed in the heat ofpassion after adequate provocation.

i. What types of provocations are adequate.1. Must be provocation that would arouse a sudden and

intense passionin the mind of an ordinary person, and

the person must not have had time to cool off.

2. Common provocationsa. Assault and Batteryb. Discovering spouse in adultery

i. In some states words alone can neverbe provocation.

2. Involuntary manslaughteri. Killing committed with criminal negligence

ii. Or, Killing committed during a crime that is not felony murder.Commonly called misdemeanor murder


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Felony Murder;Any killing committed during the commission of or attempt to

commit a felony.

a. Felony?i. If a crime is punishable by more than one year in jail, it I a

felony.

b. Six limitations on felony murder.i. D must be guilty of the underlying felony.ii. Felony must be inherently dangerous.

iii. Felony must be separate from the killing itself.1. Aggravated Battery cannot be the basis for felony

murder.

2. Must be an independent felonious purpose.iv. Killing must be during the felony, or during immediate

flight.

v. Death must be foreseeable1. By definition in felony murder you are talking about

accident death, and question is whether it isforeseeable.

vi. Victim must not be a co-felon1. Some states do allow this most states do not.

MPC Homicide;

1. MPC Murdera. Intent to Killb. Extreme Recklessnessc. Felony Murder

i. Similar to common law except not obviously dangerous,instead limited to a list

1. Burglary2. Robbery3. Arson4. Kidnapping5. Escape6. Sexual Assault

Manslaughter

Intentional; Intentional killing committed under influence of a reasonableextreme emotional disturbance.

Reckless Killing; Killing where the defendant is aware of and consciouslydisregards a substantial and unjustifiable risk of death.

o If D is only negligent then the third offense under MPC. Criminally negligent homicide.

o D should have known about a substantial and unjustifiable risk. Notice that there are no degrees under MPC.


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Sex offenses

1. Forcible Rape; sex without the victims consent, accomplished by force, or bythreat of force, or when the victim is unconscious. (At common law, was a

general intent crime)

a. Penetration Sufficient; Rape requires only penetration of female sexorgan by the male sex organ. Emission is not required.b. Absence of Marital Relationship; at common law, and under the

MPC the woman must not have been married to the man who

committed the act. Today though most states have either dropped this

requirement where the parties are estranged or separated or

abolished entirely.

c. Lack of Effective Consent;Consent even if given may be ineffective inseveral situations.

i. Intercourse accomplished by force1. Main element is on force.2. Question is how much force is enough?a. Tons of thoughts on this. It may be a policy

argument for the exam.

ii. Intercourse Accomplished by threats; if accomplished byplacing the victim in fear of great and immediate bodily harm,

it constitutes rape. (failure to resist to the utmost does not

prevent the intercourse from being rape if resistance is

prevented by such threats. )

iii. Woman incapable of Consenting;Inability may be caused byunconsciousness, by effect of drugs or intoxicating substances,

or by the victims mental condition.

d. Consent Obtained by Fraud;In limited circumstances intercoursewith consent obtained by fraud constitutes rape.

i. Fraud as to whether act constitutes sexual intercourse;Ifthe victim is fraudulently lead to believe that the act is not

sexual intercourse, the act constitutes rape.

ii. Fraud as to whether the D is Victims Husband; Generallyspeaking it doesnt constitute rape.

iii. Other fraud;Generally will not make intercourse rape.2. Statutory Rape; sex with a person under the age of consent. Even if the

female willingly participated, consent is irrelevant. Age of consent varies

from state to state, generally from 16 to 18.

a. Strict Liabilitydoesnt matter what was intended, or the level ofmistake.

3. MPC has different approach for 11-14, a reasonable mistake will be a defense(This is a minority rule most states dont follow it)

If you run into a crime you dont know the professor is either testing you on

something else, not the crime, or else they are going to give you the statute and test

you on your ability to interpret statutes.


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Inchoate Offenses

Attempt; has an act requirement and a mentality requirement1. Act requirement; Must have committed an act beyond mere preparation

a. (Common law); conduct that gets dangerously close to thecommitmentof the crime.

i. Traditionally there is a proximity test1. Need the means and intent and the person/object in the

same place at the same time.

b. Act requirement (MPC); Conduct that is a substantial step towardsthe commission of the crimeand strongly corroborative of a

criminal purpose (MPC)

2. Mental State requirement; is a specific intent crime under Common law.(Since it has to be the specific intent to complete the crime.)

a. You cannot attempt accidental (Negligent) crimes.i.

NO attempt versions of reckless, or negligent crimes, or felonymurder.

3. Doctrine of impossibility; D is saying I cant be guilty of attempt becauseitwas impossible to commit the crime

a. Factual impossibility; It was impossible to commit the crime due to acircumstance beyond the D control.

i. Not a defense to attemptb. Legal impossibility; Impossible to complete the crime because what

the D was trying to do is not illegal. (D thinks its a crime but it isnt)

i. Is a defense to attempt,1. But it almost never happens.

4. Withdrawal; under common law, abandonment/withdrawal is not adefense.a. Withdrawal, MPC, works only if they withdraw voluntarily and

complete renounces the crime.

i. Has to be motivated by a change of heart and not a fear ofgetting caught. Generally hard for the D to prove.

ii. Has to be a complete abandonment, not just postponement, ordecision to find another victim.

5. Prosecution for Attempt; A person convicted of the crime cannot beconvicted of attempt as well.

6. Punishment for attempt; most states punish attempt less severely than thecrime attempted.

a. Commonly up to one-half the maximum penalty for the completedcrime, with specific settings for crimes punishable by death or life

imprisonment

b. MPC: attempt may be punished to the same extent as the crime, exceptfor capital crimes and the most serious felonies.


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Defenses;apply to all crimes.1. Capacity Defenses

a. Insanity; Defendant must suffer from a mental disease or defect.i. Several Tests.

1. Common law, MNaghten test; did D know his act iswrong, or did he understand the nature of his act. If notthen not guilty.

a. Elementsi. Disease of the mind

ii. Caused a defect of reasoniii. Such that the D lacked the ability at the

timeof his actions to either;

1. Know the wrongfulnessof hisactions; or

2. Understand the nature andqualityof his actions.

b. Applicationi. D with Delusions; if delusions (False

beliefs), it is necessary to determine

whether his actions would have been

criminal if the facts had been as he

believed them to be.

ii. Belief that Acts are Morally Right; D is notentitled to an acquittal merely because he

believes his acts are morally right, unless

he has lost capacity to recognize that they

are regarded by society as wrong.

iii. Inability to control oneself; traditionally itis irrelevant that the D may have been

unable to control himself and avoid

committing the crime. Loss of control

because of mental illness is no Defense.

c. Evidence Admissible; in practice this test doesnot restrict any evidence that shows the mental

condition of the D.

2. Irresistible impulse test; was D unable to control hisactions, or unable to conform his conduct to the law.

a.

The inability need not come upon the Dsuddenly.

b. Some jurisdictions apply this and MNaghtentest, meeting either would provide an acquittal.

3. Durham/New Hampshire/Product test; was thecrime the product of the D mental illness. (No longer

used in any American jurisdiction)


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a. Traditionally this was an application of a butfor test in regards to the mental illness.

4. MPC / American Law Institute (ALI) test; If the Dshows that he suffers from a mental disease or defect

and as a result lacked the substantial capacity to either

a. Appreciate the criminality of his conduct, orb. Conform his conduct to law.ii. Application is difficult since it is really a psychological question

more than anything else.

iii. Distinguish from incompetence.1. For insanity issue is if the person was insane at the time

of the act.

2. Incompetency asks whether the person is insane at thetime of trial.

a. Deemed incompetent if he is unable:i. To understand the nature of the

proceedings being brought against him;or

ii. To assist his lawyer in the preparation ofhis defense.

iv. Diminished Capacity; Some states recognize defense ofdiminished capacity, under which the D may assert that as a

result of a mental defect short of insanity, he did not have the

particular mental state (Purposely, knowledge, recklessness or

negligence) required for the crime charged. Most states

recognizing this defense limit it to specific intent crimes. (Not

held in most states)

b. Intoxication;(Didnt Study This) May be caused by any substance.Alcohol, drugs and medicine are the most frequent.

i. Involuntary intoxication;is a defense to any crime.1. Qualifies only if the results from taking the substance

are;

a. Without knowledge of its natureb. Under direct duressc. Pursuant o medical advice while unaware of the

substances intoxicating effect.

2. May be treated as mental illness in which case court canapply a mental illness test.

ii. Voluntary intoxication;1. Common law says that it can be a defense to specific

intent crimes, if the intoxication negates the intent.

2. Not a defense to Crimes requiring Malice orrecklessness

3. Defense to first-degree murder, but not second degreemurder.


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a. Reduces 1stdegree to second, but doesnt reduce2ndto manslaughter. Common law depraved

heart murders fall into this category of 2nd

degree murder. Cannot negate the recklessness

required for depraved heart murder.

c. Infancy (Didnt Study this);to young to be prosecuted.i. Common law historically; under age of 7 cannot be prosecuted.1. 14 may not be trialed depending on crime. 14 and above

is fine.

2. Modern question is if they are prosecuted as adult orchild.

ii. MPC; under 16 go to family court,1. 16-17, family court determines if you are tried as adult

or child.

2. 18 and above, prosecuted as an adult by default.2. Justification; Self-defense.

a. Distinguish between deadly force and non-deadly force.i. Guns and knives are deadly force (usually)ii. Bare hands are not deadly force (usually)

b. Rules for non-deadly forcein self-defense.i. Ok if it is reasonably necessaryto protect against an

imminent use of unlawful force against oneself.

ii. No need to retreat before using non-deadly force.c. Rules for use of deadly force.

i. Ok if D is facing an imminent threat of death or seriousbodily injury. (Must reasonably believe that they are faced

with the imminent threat)

ii. Additional restrictions on deadly force1. Aggressor rule; may not use deadly force if they are the

original aggressor except if the aggressor withdraws

from the confrontation and effectively communicates

that to the victim, or if the victim suddenly escalates a

non-deadly fight into a deadly fight.

2. Retreat rule;in some states the D is required to retreatbefore using deadly force in self-defense.

a. Retreat to the wall rule.b. Not required to retreat if

i. You cannot retreat in complete safety.ii. If you are in your own home. (Castle

acceptation)

iii. If you are defending against a kidnapping,rape, robbery or larceny.

d. MPC ruleis that retreat is not required, also known as modernAmerican rule, or the true man rule.

e. Reasonable mistake can still allow the D to make a claim of self-defense.


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i. Under common law, if there is an unreasonable mistake thereis no self-defense.

ii. Under MPC if the D kills under an unreasonable mistake theyare guilty of manslaughter, known as imperfect self-defense.

f. Use of force to prevent a crime;i. Can use non-deadly force to prevent any crime (within reason,although CA really is any).

ii. Deadly force can be used only to prevent a felony that riskshuman life. Dangerous Felony

g. Defense of others.i. Can use force to defend others just as you can to defend

yourself.

1. Need not have relationship with the person aided.2. Have to reasonably believe that the person needs aid

based on the reasonable appearance of the right to use

force.

h. Defense of property.i. Non-deadly force;A person may use non-deadly force indefense of their dwelling when, it is reasonable to believe it

necessary to prevent or terminate anothers unlawful entry

into or attack upon their dwelling.

ii. Deadly force may not be used to defend property.1. Exception is Burglary.

a. If you are inside the house.3. Necessity; Self-defense, but not in terms of force against others, (meaning

self defense that allows committing a crime. )

a. Choice of evils in other contexts.i. Committing a crime is less than the other crime.

1. At common law it cannot be a defense of murder.b. MPC allows it to be a D to murder.c. Duress of necessity involves a human threat, necessity involves

pressure from physical or natural forces.

4. Duress;a. Defense if the D was forced to commit a crime if the D was under the

threat of imminent death or serious bodily injury.

i. Like necessity, at common law duress could not be a D tomurder.

b. MPC allows D to murder.5. Entrapment (Didnt Study This);

a. If the Gov unfairly tempted the crime to happen.i. Must show.

1. It was the governments mind to offer the crime.a. D wasnt looking for it.

2. That the D was not predisposed to committing thecrime.

a. Quite difficult.


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6. Consent (Barely Discussed this); Generally not a Da. Can be a defense if it negates an element of the offense, consent is a

complete defense.

b. For consent to be a defense it must show that;i. Consent was voluntarily and freely given

ii. Party was legally capable of consenting; andiii. No fraud was involved in obtaining the consent.7. Forgiveness by the injured party after the crime is no defense.8. Illegal conduct by the victim is not a defense.

Dont underestimate how important it is to know the doctrine.

When you are answering a question approach it mechanically and simplistically

Identify the Offense

Lay out the Elements

Discuss each element with regards to the facts of the question.Remember all facts are there for a reason.

Crimes against property

1. Larceny; trespasser taking and carrying away of the personal property ofanother, with e intent to steal.

a. Specific intent crimei. Taking under a claim of right is never larceny.

ii. Unreasonable mistake is a defense.2. Embezzlement; Conversion of the personal property of another by a personal

already in possession of the property, with the intent to defraud,

a. Specific intent crime.3. False pretenses; obtaining title to the property of another by an intentional

false statement with the intent to defraud.

a. Key difference is title.b. Most states have a consolidated theft laws, called either Larceny, or

Theft or something of the like.

4. Robbery; a Larceny from anothersperson or presence by force, or threat ofimmediate injury.

a. Mental state is the intent to steal.b. How much force is required.

i. Enough force to overcome resistance.c. Threat must be of immediate injury.d. If threat is of future injury it is called extortion.e. If threat is of embarrassment it is called blackmail.

5. Burglary; Breaking and entering the dwelling of another, at night, with theintent to commit a felony inside.

a. It is specific intent.b. Most states have expanded to all buildings


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c. Most modern states dont restrict to nights6. Arson; Malicious burning of a building

a. State of mind is Malice.b. Used to be limited to dwellings, now extended to buildings other than

dwellings.

i. Used to not extend to your own dwelling now it does.Inchoate offenses and accomplices liability

a. Accomplice liability is based on the concept that you can be responsible forwhat someone else does.

1. Person committing the crime is called principle.2. Person helping is called an accomplice.

a. Act is aiding or encouraging the principle.b. Mental state is; with the intent that the crime be

committed.

3. Accomplishing is not a crime, but the accomplice is guilty ofthe principle crime as though they had done it, not only that

but the accomplice is guilty of all other crimes that were

foreseeable that the principle would do.

4. Accomplicesguilt doesnt depend on the principles guilt.a. Can be guilty even if other person has defense.

ii. 3 defenses to accomplices.1. Merely being present doesnt make you an accomplish unless

you help.

2. Mere knowledge does not make you an accomplice.a. Although if you know too much you could be an

accessory.3. Members of the protected class cannot be an accomplices,

a. Victim of the intended crime is not an accomplice.iii. Withdrawal of being an accomplice, depends on what you did.

1. If you encouraged then all you have to do is discourage theprinciple.

2. If you aided, then you have to take affirmative steps to negateyour assistance.

iv. Accessory, knows the crime happened and you help them after thecrime, with knowledge that it has been committed with the intent to

help them avoid being arrested, or convicted.

1. Most modern jurisdictions this has different names, such asobstruction of justice etc.

b. Inchoate offenses, Incompletei. Solicitation; asking someone to commit a crime with the intent that

they do it.

1. Specific intent crime.2. Completion is not necessary.


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a. Doesnt matter if the person says yes, asking is thecrime

ii. Conspiracy; agreement between two or more people to commit acrime, plus an overt act in furtherance of that crime.

1. Specific intent crime; must intend it to happen.a. Crime is in the agreement plus an overt act, you donthave to succeed.b. Overt act can be as simple as driving by a bank after

agreeing to do the crime.

2. At common law you could not have a one-person conspiracy.a. MPC follows the unilateral rule, can have a

conspiracy, even if only one of the people has the

intent to go through with the crime.

3. Vicarious liability; if you are a member of a conspiracy youare guilty not only of conspiracy but of all crimes committed

by your co-conspirators.

Documents

Criminal Law Outline II