Crminal Law Gray 2011[1]

8/2/2019 Crminal Law Gray 2011[1]

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ACTUS REUS (AR)

A voluntary act, or 2) omission when there is a legal duty

1) VOLUNTARY ACT

i) MPC: Under the MPC the following are not voluntary acts

(a) Reflex or convulsion(b)Bodily movement during unconsciousness or sleep(c) Conduct due to hypnosis(d)A bodily conduct that otherwise is not a product of the effort or

determination of the actor, either conscious or habitual (Note: This is a broad

category)

(e) Unconsciousness: A person must be conscious of their acts to be held liablefor the crime (not necessarily a coma)

1. Exception: If unconsciousness (e.g. intoxication) is self-induced, thedefense of unconsciousness is not very strong.

ii) OMISSION (this is voluntary ONLY if there is a legal duty to act)

(1) Is there a legal duty? (must argue all areas of duty below)(a) Is there a relationship between the D and the victim?

1. If statute imposes a duty to care for another2. Special relationship (spouse, parents & kids)3. Contract to provide care4. Voluntary assumption of care + isolation5. If D created the peril

(b) The Good Samaritan statutes always enforce a clause that the duty onlyapplies with relevant safety.

(2) Was D aware of the opportunity to act?(3) Did the omission directly cause or worsen the injuries of the victim?

(a) Person charged with duty of care is required to take steps that are reasonablycalculated to achieve success.


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MENS REA

MPCMPC2.02 Levels of Culpability1) can prove level reqd or level higher.

2) If there is a level mentioned in part of the statute that level applies for all the other elements, unless a

contrary purpose plainly appears.

3) If no specified MR, default is recklessness (or purpose or knowledge)

Conduct (bodily

movement)Circumstance(conditions)

Result(not always element)

Purpose (Required

for attempts)

Conscious

objective/desire

Awareness, belief or

hope

Conscious objective/desire

Knowledge Aware Practically certain

Recklessness (default

culpability level)

Indifference

Subjective awareness ( did actually know) of substantial & unjustified risk that is

gross deviation from what law abiding person would do

NegligenceInattentiveness

Objective/reasonable person would have been aware, gross deviation from

standard of reasonable care based on: 1) gravity of harm that foreseeably would

result from s conduct, 2) probability of harm; 3) burden to of not engaging in

risk

MPC 2.02(7) Where knowledge is reqd, a high probability of fact will suffice (willful blindness)

Conditional Intent: 2.02(6) Does condition take out of realm of people meant to be convicted by

statute (negatives the mens rea)? (conviction upheld in conditional [if you dont cooperate, Ill kill you]

carjackingHolloway) Common law or MPC?

Common Law1) If MR included in statute then analyze sentence & statute purpose to see if it distributes, if specifiedM/R doesnt distribute then use default below unless in S/L

2) If no specified MR, default is malice/recklessness (can be fulfilled by knowledge)

Specific intent : has some future purpose or actual knowledge of fact/circumstance . (murder, attempt,

burglary, larceny, robbery)sort of like purpose/knowledge in MPC

General intent aware of conduct & has knowledge, but no particular desire/purpose to bring about new

circumstances

x Must have mens rea for each charge:x Not using stop tap when stealing money from the gas meterleaklife in dangerCunninghamx Sailor intends to get rum but burns the whole ship down in the processFaulkner

is assumed to intend reasonably foreseeable consequences of action (inability to find corrupted

juror doesnt bar specific intentNeiswender) Deliberate ignorance = mens rea. Awareness of probability of crime sufficient for mens rea (presence

of marijuana in the trunkJewell)


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STRICT LIABILITY- EXCEPTIONS TO MR

Common Law MPC

Strict

LiabilityUsu.

involves

newer

statutory

regulatory

crimes

where

mens rea

hard to

prove

Wrong in itselfno need for mens

rea

If its a strict liability statute,mistake of fact doesnt matter

(underage girlRegina v.Prince;

leaving pregnant wifeWhite)

x Old crime that doesnt mention areqd intent strict liability

(accidental theft of casings

Morrisette)

Only where explicitly stated in statute

x Cant hold owner crim liable under a regulatorycrime making it illegal to serve underage

alcohol b/c of stigma, costs of crim

convictionGuminga

Can hold liable for strict liability speedinglaw w/ stuck cruise control despite lack of

controlBaker

iii) Most S/L crimes are statutory crimes except statutory rapeiv) S/L only imposed when background circumstances give rise to a preseumption of

knowledge or a duty of knowledge (ex: deported immigrant & attempted reentry)

v) Vicarious Liabilityliability imposed on one for the act of another(a) When incarceration is a possible sanction, no vicarious liability in S/L

1. Criminal penalties based on vicarious liability are a violation ofsubstantive due process and that only civil penalties are

constitutional. State v. Guminga

(b)When no incarceration (ex. fines)1. employers are criminally vicariously liable for the illegal conduct

of their employees even in the absence of evidence of employer faultvi) Multifactor test for to determine if S/L

(a) Common law crime (murder, stealing ex: Morisette- D took abandoned bombcasings), or Regulatory crime (ex- Balint(dist of narcotics) vitamin

distribution case, deportation reentry must be S/L so others participating in

activity will take extra precaution)

(b)Malum Prohibitum (more likely S/L) vs. Malum insa (ex. theft)(any lack offair warning may be defense)

(c) Will legislative purpose be frustrated by implementing the mens rearequirement? If yes, then S/L

(d) Type of punishmentavoid S/L if severe punishment(e) High barriers of entry (more likely S/L)

(f) Closely regulated? (more likely S/L)(g) Is it a common field of endeavor? (less likely S/L) ex: US v. Staples- rifle w/metal casing filed down, b/ gun ownership is common so no S/L, need MR)

(h) Inherent dangerousness of the act(i) Notice from social norms (having sex w/ young people)(j) Is it an omission? (less likely S/L)(k) Will social policy be compromised if prosecutors have to prove MR? if yes,

then less likely S/L

vii)Defense


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(a) No mistake of Fact defense


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Mistake of Fact (not defense in S/L)

i) Lesser crime theory(a) Mistake of fact is not an excuse when even without the mistake the act

would have been a lesser crime1. NOTE: at CL, D would be charged w/ the higher offense, but MPC

would only charge for lesser offense

ii) Moral wrong doctrine(i) one can make a reasonable mistake & yet manifest a bad character or

otherwise demonstrate worthiness of punishment1. Regina v. PrinceMan takes a girl with her dads consent not

knowing she is 16 and is charged because the taking of the girl was a

crime

iii) Provides excuse for completed crimes (ex. Intend to steal book, believing it wassomeone elses, b/ find it is yours)- if it negates element of the crime b/c crime never

completed

iv) No excuse for attempt- since no requirement to complete crime, so long as D acts w/necessary MR

Common Law MPC

Mistake

of Fact

Mistake

of Law

General IntentHonest &

reasonable

mistake of fact is

a defense

Sherry: Must be

both honest &

reasonable

Specific intentHonest mistake

of fact is a

defense b/c it

overcomes mens

rea Reynolds:

Just honest & not

reckless Kelly:

Honest

2.04 (1) Ignorance/Mistake of fact or law is a

defense if (a) it negatives the rqd culpability level;

(b) the law allows it.

(2) Defense is not allowed when the would have

been guilty of another offense if the circumstances

were as she thought they were; this will ONLY

reduce the grade of the offense.

(3) Mistake of law is a defense when (a)doesnt

know of law & its unpublished; (b) acts in

reasonable reliance on official statement of law later

determined to be invalid

Only a defense when afterwards the law isdeemed invalidAlbertini

Ignorance of law is no defense unless codeallows itMarrero (misinterpretation of law

defense)common law case

General IntentMistake of law

defense

Hopkinseven

where relying on

an official b/c

official doesnt

determine law

Woodquickie

divorce


of law is a

missing element

Smithwhere

is missing

specific intent

(thinks he is

ripping up own

floorboards)


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Mistake of Law

i) General Rule(a) No excuse for personal misinterpretation of law- ex:MarreroD charged w/

unlicensed possession of gun, he thought he would be considered a peace

officer. Court says no

(b) Ignorance of law or personal misinterpretation of the law excuses nooneEXCEPT

ii) Exceptions to Rule(a)Reasonable reliance doctrine-

1. Reliance on official interpretstion of law later determined to beinvalid (statute, judicial decision, public officer)

(b) Failure to give fair warning (Lambert v. statelaw requiring convictedpeople to register- statute dictated actual knowledge)(c) With ignorance or mistake that negates Mens Rea (ex: ignorance negates

intent) (Regina v. Smith- D damaged property thinking it was his)

iii) If D engages in conduct which he believes is lawful, when it is unlawful, this is noexcuse

iv) If D engages in conduct which he believes is lawful, when it is unlawful, and alsomakes a mistake of fact, can be charged w/ attempt as long as knowledge is not one

of elements of offense this is no excuse (ex. Trying to illegally import alchohol not

knowing that u dont actually have alcohol)v)vi) If D engages in conduct believing it is unlawful b/ it is infact not lawful, then there is

no crime, or attempt.

Common Law MPC2.04

Mistake

of Law

General IntentMistake of law

defense

Hopkinseven

where relying on

an official b/c

official doesnt

determine law

Woodquickie

divorce


of law is a

missing element

Smithwhere

is missing

specific intent

(thinks he is

ripping up own

floorboards)

Mistake of law is a defense when

(a)doesnt know of law & its unpublished;

(b) acts in reasonable reliance on official statement

of law later determined to be invalid

Only a defense when afterwards the law isdeemed invalidAlbertini

Ignorance of law is no defense unless code

allows itMarrero (misinterpretation of law defense)common law case


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HOMICIDE

1) MURDER- At common law there are no degrees of murder b/ statutes dividemurder into 1

st& 2

nddegree

(1)CL Murder Rule: Unlawful killing of another w/malice aforethought1. Malice aforethought is satisfied w/:

i. intent to kill w/o provocation or on slight provocationii. intent to kill one person b/u kill another/anybodyiii. intent to cause grievous bodily harmiv. knowledge that act is likely to cause death or grievous

bodily harm (recklessness depraved indifference to

human life)v. intent to commit felony & during felony u kill someonevi. Interferring w/ law enforcement that results in death of

someone

(ii)1st Degree Murdera. Premeditated& Intentional Killings: courts have held the

following:

i. premeditation requires more than intention, requires 2ndorder of reflection on intentions, some kind of pause

- State v. Guthrie- D stabs V after being teased& flicked in nose

ii. The time required to premeditate is no more than a briefmoment of thoughtsame as intent in some jx

- Young v. State- premeditation formed when Dpulls the trigger

iii. 3 categories may point to premeditation: 1) Planning

activity, 2) manner of killing, 3) motive

(iii) 2nd

Degree Murdera. Intentional killing- prove intent as follows:

i. Ordinary people intent the natural & probableconsequences of their actions, D is an ordinary personso he intended the consequences

ii. Deadly weapon rule- when D intentionally uses adeadly weapon directed at a human being, an intent to

kill may be inferred

(2)MPC Murder

(i) Rule: A person is guilty of criminal homicide if he purposely,knowingly, recklessly or negligentlycauses death of another (murder,

manslaughter or negligent homicide)

(ii) Note- no malice aforethought as in CL(iii)Murder Rule: Criminal homicide is murder when it is

i. committed purposely or knowingly orii. recklessly under circumstances manifesting extreme

indifference for human life (depraved heart)


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iii. recklessness & indifference is presumed when D whilecommitting robbery, rape, arson, burglary, kidnapping or

felonious escape someone is killed (felony murder)

(3)DEFENSE(a)Self Defense(b)Duress or necessity? Depends on if CL or MPC(c) Imperfect Self Defense

1. May mitigate to manslaughter2. If D has to retreat and fails to do so b/ instead responds w/

deadly force3. If D kills another b/c he unreasonably belives the

circumstances justify the killing


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2) FELONY MURDERi. Rule: A person is guilty of murder if he kills someone during the

commission or attempted commission of any felony

a. MR only required for the actual felonyb. Applies whether D kills V intentionally, recklessly,

negligently, accidentally & unforeseeablyc. Some states limit it to inherently dangerous felonies

some dontd. Accomplice can also be prosecuted for FMe. MPC limits it to the following felonies: robbery, rape,

arson, burglary, kidnapping or felonious escape- People v. Phillipscourt holds theft is no

inherently dangerous so no felony murder

ii. Merger Doctrineapply FM only where the predicate felony issomewhat independent of the killing

a. Ex: manslaughter, assault & battery like felonies: thefelony merges into the killing & cant be used aspredicate

b. If the elements of 1 crime are included in the other, thelesser crime merges into the higher (ex: if guilty of both

manslaughter & murder then convicted only of murder.)c. Cant use involuntary manslaughter as predicate b/c it

bumps crime up for no apparent justification

d. Cant use felony murder if there is an actual murder.Must prove murder

iii. Causation a. Agency analysis: Many jxs apply FM rule only when Dor one of his agents causes death. D cant be blamed fordeaths caused by Police or other parties

b. Proximate Cause approach: Attaching liability for anydeath that is the direct & foreseeable result of the

unlawful activity

1. Shield situations- when V is killed whilebeing used as a shield by D

c. Some jx say the killing must have somehow furtheredthe felony for felony murder to apply


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3) MANSLAUGHTER (unlawful killing of another - w/ default of malice orrecklessness)

i. Always start w/ murder, then look for provocation that would decreaseit to manslaughter

ii. CL- Voluntary Manslaughter1. Rule: Intentional homicide with the following provocation

i. heat of passionii. passion must result from adequate provocation (ORP)iii. Subjective & objectiveiv. Words alone will not suffice

- (Giroud v. state, D stabs wife 19X after sheinsulted him & asked for divorce)

v. Examples. of sufficient provocation: battery on D,mutual combat, Ds illegal arrest, injury or serious

abuse of close relative, sudden discovery of spouses

adultery (must witness intercourse)- Maher v. People- D didnt actually witness

his1. with no reasonable time to cool off2. there must be a causal link b/t the

provocation, passion & homicide

iii. MPC- Manslaughter1. Rule: homicide committed recklessly

i. does the recklessness manifest an extreme indifferent tohuman life? If so, it may be murder

ii. Intentional conduct, either commission or omissionwhere there is a duty.iii. The likelihood of the risk is highiv. The gravity of the harm is greatv. Ds subjective awareness of the risk- If likelihood of

harm was that high then jury may infer that D should

have known of the harm.

vi. Knowing facts that would cause a reasonable man toknow the danger is equivalent to knowing the danger

2. Rule: Homicide committed as a result ofextreme mental oremotional disturbance (subjective) for which there is

reasonable explanation or excuse. (determined by view ofsomeone in Ds situation)

i. Words alone can warrant manslaughter instructionii. No rigid cooling off periodiii. No need for actual provocation, can claim the defense if

D believes although incorrectly, that V was responsible

for the affront


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iv. CL- In-Voluntary Manslaughtera. Criminal Negligence

1. Criminal negligent homicide2. Gross deviation from the standard of

care that reasonable people would

exercise in the same situation3. SHOULD HAVE BEEN aware of therisk (if D is actually aware of risk &

proceeds then this is recklessness andmay be voluntary MS)

b. Unlawful act (misdemeanor-MS) doctrine1. assicental homicide occurring during

commission of an unlawful act that is

not a felony constitutes involuntary MS

v. MPC- Negligent Homicide

a. Committed negligentlyShould have been aware of herisk; inadvertent; objective (in CL Jx this is involuntaryMS)

CAUSATION (usually in result crimes)

1) Is there a result element? Then you need to analyze cause2) Cause in Fact (But For)

i) Mens Rea(a)Causation w/o MR = No conviction

(b)MR w/o Causation = No conviction

ii) Multiple actual causes(a)D may be liable for accelerating a result (but for conduct, result would

not have occurred where it did)

(b)Concurrent causes- independent factors inflicting injury @ same timeso must demonstrate that Ds conduct was a substantial factor & resultwould have occurred even w/o D2s act

1. People v. Arzon- D sets fire, D2 sets separate fire later. Courtholds that Ds conduct need not be the sole & exclusive factor

in Vs death. It is enough that his conduct was a sufficiently

direct cause of the death & the ultimate harm is somethingreasonably foreseeable (ex firemen responding to fire could

die)(c)Obstructed cause- D1 shoots V in stomach, while simultaneously, D2

shoots V 3 times in headD1 is charged w/ attempt, & D2 w/ murder

b/c his was more effective & he thwarted D1s goal.

2) CL Proximate Cause


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i) Direct Cause- an act that is a direct cause is also proximateii) Analysis

(a) Forseeable (objective standard)(b) Proximityhow close in the chain is Ds conduct in relation to result(c) Efficient (was chain broken?)

1. Even if there is a direct cause, if the chain is ended and restarted by

another, then it is not efficient2. Interventions that would not have changed the outcome doesnt

break the chain (medical malpractice doesnt create efficiency

problems)

3. Efficiency chain can be broken by act ofintervening IndependentAND free willed agent or V

i. (D provides V with a gun and encouraged him to kill himself,V is considered a free willed agent)

ii. Assisted suicideD didnt actually act- V was a free willedindependent agent

iii. V based on curcumstances may not be consideredindependent & free willed (ex: police were pawns in Ds

plan so werent independent, rape/kidnap/torture victim notfree willed when she poisoned herself)

1. Intervening causemay break the chain2. Superceeding causesD no longer poses imminent

threat & V made bad decision

4. Commonwealth v. RootD&V drag race, V dies- Courts divided onwhether D can be liable for Vs death, but unanimously will be liableif innocent victim dies

3) MPC Proximate Causei) But-for causation is the exclusive meaning of causation

ii) Instead of proximate cause, code focuses on issues relating to culpability(a)2.03 (2) Purposefully/knowingly: Must be within purpose or

contemplation of actor unless:1. actual harm differs from what contemplated only regarding its

extent

2. actual harm is what was intended and is not too remote(b)2.03 (3) Recklessly/negligently: Must be within risk aware of or, in

the case of negligence, risk that D should be aware of, unless:

1. actual harm differs from what contemplated only regarding itsextent

2. actual harm is what was intended and is not too remote

(c) If no mens rea element established, then causation is not establishedunless the actual result is a probable consequence of Ds conduct


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ATTEMPT

1. Specific intentMust prove that D performed these acts with the specific

intention of committing the target crime(a)e.g. D recklessly fires gun in crown. If someone killed, chargeable

with murder (reckless disregard). However, if D kills no one, D

cannot be convicted of attempt. She lacked the specific intent to kill.2. CL Rule: when a person, with the intent/purpose to commit an offense,

performs any act that constitutes a the final toward the commission of that

offense

(a)Final step- the only thing stopping the crime is luck or intervention(b)AR- must be an affirmative act tested against

1. Proximityi. Draw the line b/t preparation & attempt

ii. Must be the final step at CL2. Equivocality

i. May disappear if there is clear evidence of intentii. Prevailing customs & social norms are relevant in

assessing (D goes to haystack to smoke- is this intent?

Does he normally smoke or is this the 1st

time? Is there

a social norm of never smoking next to a haystack?)3. Liklihood of success

i. If there is little to no liklihood of success then no caseii. Ex: voodoo doll = liklihood,

(c)Defense

1. Legal Impossibilityno crime even if completed2. Mistake of fact is not a defense- the acts if completed would

constitute a crime b/ b/c of factors unknown to D there is nochance of completion of the crime

3. Abandonment is NOT a defense in CL3. MPC Rule: criminal attempt occurs when a person acts w/ the type of culpability

necessary for the crime AND must, with 1) the purpose to commit the target

offense (AR) or know the result will occur as a consequence of his conduct, 2)

conduct constituting a substantial step towards the commission of the offense.

(a)Actions considered substantial step1. lying in wait

2. searching for the victim3. following the victim4. seeking to entice the victim to go to the place of crime5. reconnoitering the place contemplated for the crime6. unlawful entry of a structure, vehicle or enclosure where

intending to commit the crime

7. possession, collection or fabrication of materials to beemployed


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8. soliciting an innocent agent to engage in conduct constitutingan element of the crime

(b)Defense1. Voluntary Abandonementnot motivated by circumstances

that increase risk of detention or increase difficulty incommiting the crime

2. Legal Impossibilityno crime even if completed3. Mistake of fact is not a defense- the acts if completed would

constitute a crime b/ b/c of factors unknown to D there is no

chance of completion of the crime

4. Exceptions(a)Felony murderno such thing b/c requires a death(b)Involuntary manslaughter- no such thing b/c involuntary is

unintentional

(c)Strict Liability crimesexcept statutory rape which can still be

attempt(d)Negligence crimes

ACCOMPLICE LIABILITY

1) C.L. Rule:,(1) Accomplice rule-, w/ intent that another engage in criminal conduct or cause

harm, D while actually or constructively present provided assistance by act or

omission or encouragement, during the course of crime that was completed

whether or not such assistance was necessary or determinative

(2) Accessory B/4 the fact - w/ intent that another engage in criminal conduct orcause harm, D provided assistance by act or omission that was at least minimallyeffective, or counseled, commanded, or encouraged the principal in a completed

crime, whether or not that assistance was necessary or determinative

(3) Accessory after the fact: knowing that P committed a crime and w/ intent that Pevade detection, arrest or prosecution, D provided assistance, protection, aid,

encouragement or succor to P, whether necessary or determinative

(4) Natural and probable consequences doctrinean accomplice is guilty not only ofthe offense he intended to facilitate or encourage b/ also of any reasonably

foreseeable offense committed by the person he aids & abets

2) MPC Rule: D is an accomplice if w/ the purpose of promoting or facilitating he 1) solicitsanother to commit it OR 2) aids, or agrees, or attempts to aid another in planning or

committing it OR 3) has a legal duty to prevent the commission of the crime and fails to do

so; AND 2) the mental state required for commission of the substantive offense

i) MPC Uniqueness(1) REJECTS reasonable & foreseeable test(2) Often the mental state may be inferred from proving #1(3) No requirement that the aider & abetter be effective (allows attempt to assist)


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(4) May or may not impose liability if principal failsii) DEFENSE

(1) Renunciation (termination of complicity prior to commission of crime)1. D must ensure that his assistance is ineffective or2. give timely warning to law enforcement or make proper effort to

prevent commission of the crime

3) CAUSENo need to show cause4) Can be accessory to involuntary maslayghter if you intend that D2 engage in reckless acts

that put other at risk of death or serious bodily harm.

5) Mens ReaD must specifically intend that D commit the crime6) Justificationeven if D1 provides proper justification or excuse (ex. undercover law

enforcement) it may not extend to D2 if there was an actual crime

Part of the

crime

Common Law (can charge also for

principal crime can charge all of them)

Modern Approach (Statutes)- D

can only be convicted of 1- can

charge all (under MPC, conspirator

& accomplice, all the inchoate

crime merge)

Before& During

the Crime

Principle in First Degreeperpetrator All are treated as principals. (Thedistinctions are eliminated)

- Treated as parties to thecrime

Aiding & abetting (accomplice) presentactually or constructively providing

encouragement

Accessory before the fact (not present)counseling, advising, directing before the

commission

After

the crime

Accessory after fact (not Present) protecting, receiving, comforting or

concealing

Some jurisdictions do not treat

them as principals (still call them

Accessory after Fact).

- Far less culpable acts andintent than principals

- No more than half thepunishment

- Not liable for principalcrime


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CONSPIRACY1) C.L. Rule- Agreement b/t 2 or more people to commit a crime, or to accomplish a

legal act by unlawful means

(1)No overt act requirement(2)Specific intent- both parties must intend to agree & intend that the object

of their agreement be achieved

(3)Purpose may be inferred from knowledge (see #3 below)(4)Pinkerton liability- Once D enters a conspiracy, he is vicariously liable for

all the substantive offenses as long as it is 1) reasonably foreseeable given

the nature of the offense AND 2) done in the course of the conspiracy

AND 3) done in furtherance of conspiracy.2) MPC RuleD is guilty if w/ the purpose of promoting or facilitating its commission,

he makes agreement (AR) to 1) commit an offense, 2) attempt to commit an offense

3) solicits another to commit an offense, 4) aid another in planning or commission of

the offense(1)Agreement may be direct or inferred from circumstantial evidence(2)MPC requires and overt act for conspiracy to commit a misdemeanor or a

3rd

degree felony; There is NO overt act requirement for 1st

& 2nd

degreefelonies

(3)***MPC REJECTS Pinkerton Liability***(4)MPC rejects Whartons rule(5)D only liable for what he actually knew(6)Defense

1. Abandonment

3) Intent may be inferred from knowledge when(1)D has stake in venture(2)there is no legitimate use for the goods or services(3)the volume of business w/ buyer is grossly disproportionate to any

legitimate demand

(4)sales for illegal use amount to a high proportion of sellers total business(5)** You need more than knowledge for misdemeanors**

4) EXCEPTION(1)D is not guilty of conspiracy if

1. if he would not be guilty of the cosumated offence as wither a

principal or an accomplice5) Types of Conspiracy

(1)hub & spoke1. One person in middle transacting w/ othere2. There must be a rim connecting all parties for it to be complete3. w/o rim you have multiple conspiracies

(2)Chain Conspiracy(3)Pyramid


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JUSTIFICATIONS & EXCUSES

1) Effect: Both work similarly in procedural terms and lead to the acquittal of

Defendant.a. Note: In both instances, D has engaged in all the conduct, possesses the

state of mind, and caused the harm necessary to commit crime.

Justification Excuse

Focus Act the act socially

beneficial or useful.Actorthe act is harmful to

society but the actor is not

blameworthy (focus on Dsmental state)

Culpable D is found to be notculpable

Even if D is culpable, D isforgiven

Examples Self-defense, defense ofothers

Cultural defense, insanity,intoxication

2. State v. Smith: Even if not requested, jury should be instructed on justification if itis the sole defense AND supported by evidence

a. Strict liability: Justification can be defense for strict liability crimes -- Dwas charged for a strict liability crime (failure to maintain lane and DUI)

b. Burden of proof: D has to introduce some evidence, but it is not clearwhich party has the burden of persuasion

3. Justification of discipline cannot be claimed when pain and suffering causedexceeds the bounds of reasonable discipline

a. Intentional mistreatment: Spanking with a belt that caused severe bruisesexceeded reasonable discipline, and D intentionally caused the pain andsuffering

b. Dissent: The kid was about to flunk school twice and the punishmentemphasized the importance of education. The conduct does not constitutecriminal activity (intent to cause harm is missing)

c. Note: (1) moral judgments come into play in determining justifications (2)hard to distinguish between intent to discipline and intent to cause harm

4. People v. Romero: A pure cultural defense is not an excuse under the objectivestandard

a. Cultural Defense: Expert testimony that D was acting under the codes of

Hispanic culture and street fighting customs (he was expected to act in theway he did) was irrelevant

i. Strong Motivation: The motivation to protect younger brother doesnot explain the use of deadly force

b. Objective Reasonableness: Cultural defenses are not admissible becausethat would create multiple standardsvery hard to administer

c. Self Defense: The court nevertheless uses the self defense analysis andfinds that cultural defense does not show that D was actually scared


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d. Policy Question: Should the cultural defense be taken into account? (It ispossible that under the honor code D is refusing to admit that he wasscared). Note that the subjective element of self defense can be a back-

door to cultural defense to some extent (identify this tension on the exam)

SELF DEFENSE (Justification)

1) When to use: D charged with an assaultive crime may assert in defense that shereasonably believed that her actions were necessary to defend herself against an

apparent threat of unlawful and immediate violence from another.

i) Effect: If successful, the D is entitled to complete acquittal

ii) Incomplete defense: In murder cases if D killed under an unreasonable beliefor used unreasonable amount of force, D is convicted of manslaughter rather

than murder (only the malice required for murder is negated)

2) Burden of Proof:a) Production: D must introduce some evidenceb) Persuasion: P has the burden to disprove BRD (under old common law D had the

burden of persuasionused in a minority of states only).

3) C.L. Rule- a person who is not an aggressor is justified in using force against anotherif hereasonably believes that the force is necessary to protect himself from imminent

use of unlawful force by another

(1)Deadly force is unjustified unless the actor reasonably believes that its useis necessary to prevent imminent & unlawful use ofdeadly force.

1. Deadly force- force likely to kill regardless of intent(2)Factors: a) Necessity, b) proportionality, c) subjective reasonability(3)Aggressor: one who starts a nondeadly unlawful conflict

1. some courts say if nondeadly aggressors V responds w/ deadlyforce, then initial aggressor regains right to self defense

2. other courts require initial aggressor to retreat(4)Defense of 3rd party- right to use force parallels 3rdpartys right to self

defense (act at own peril)

(5)Defense of Property- A person cannot use deadly force simply to protect

his property against unlawful entrance, even if there is no other way toprevent the harm

1. nondeadly force may be used2. force is not reasonable unless prior request to desist has been

made

3. may not use force to regain property except in hot pursuit(6)Mechanical device intended to protect property by causing harm may be

used where intrusion is such that if the person were present would be


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justified in taking the life or inflicting bodily harm w/ his own hands.

(threat of death or serious body harm)(7)Law enforcement- only use deadly force to prevent a crime if he believes

1) substantial risk of death or serious body injury to officer or others exists

unless if prevented and 2) the force is necessary to make an arrest or

prevent escape.1. can never use deadly force to prevent a misdemeanor arrest2. can use nondeadly force to prevent a crime is force is necessary

to prevent to crime or to make an arrest.(8)

4) MPC Rule- D is justified in using force if he believes (subjective) the force isimmediately necessary to protect himself against the exercise of unlawful force by

another

(1)Deadly force- justified only if necessary to protect on the present occasion

against 1) death, 2) serious body injury, 3) forcible rape, 4) kidnapping(2)Defense of 3rd partymay use deadly or nondeadly force to the extent thatsuch force reasonably appears to the intervenerto be justified in defenseof the 3rd party. (*** but you do so at your peril.. if the aggressor turns out

to be a justified police officer, you may be convicted***)

(3)Defense of property- D may use nondeadly force to prevent trespass onland or theft of property if he believes 1) the persons interference w/

property is unlawful, the intrusion affects Ds property, and 3) nondeadly

force is immediately necessary

1. Force is not immediately necessary unless request to desist hasbeen made

2. may not use force if you know it would put other at substantialrisk of serious body injury (ex. moving car)

3. Deadly force prohibited except if he believes the intruder 1) istrying to disposess him of his dwelling, 2) has no claim of

rightful possession, & the force is necessary to prevent

dispossession (does not authorize deadly force solely to prevent

unlawful entry into home)

4. Deadly force may be used he believes that 1) arson, burglary,robbery or felonious theft of property is imminent, 2) suchforce is immediately necessary AND either 3a) the person

previously used of threatened to use such force against him or

another or 3b) use of nondeadly force would expose him or

others to substantial danger of serious bodily injury.

(4)If D start unlawful nondeadly conflict, he doesnt lose priviledge to selfdefense

(5)Mechanical device intended to protect property by causing harm isprohibited

(6)Law enforcement or private person- only use deadly force to prevent acrime if he believes 1) substantial risk of death or serious body injury to


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others exists unless if prevented and 2) use of deadly force poses no

substantial risk of injury to bystanders.1. can use force to prevent a crime is force is immediately

necessary to prevent to crime.

2. See outline in folder for the rest

5) Retreat (1)Some courts say no retreat & allow V to use deadly force(2)Some courts say V must retreat if he can do so safely(3)Castle exception: V has no need to retreat if attack is in own home

6) Reasonable belief standard(1)Reasonable person in Ds situation (Subjective in MPC & Objective in

CL)

7) Battered womans syndromei) Prior abuse

ii) Expert testimony- may be allowediii)Imminence of threatspeculative belief about remote or inevitable harm isinsufficient

NECESSITY (JUSTIFICATION).1) C.L. Rule: D is justified in violating the law if these conditions are met (multifactor)

(1)D is faced w/ clear & imminent danger (not speculative)(2)There is a direct link b/t his action and the harm to be averted (direct v.

indirect civil disobedience)

(3)There is no effective legal alternative(4)The harm caused by the crime is less serious than the harm averted(5)The legislature must not have considered the choice of 2 evils and

obviously opted for one as opposed to the other (ex. D illegally possesses

marijuana for medical purpose, still convicted)

(6)D did not place himself in the peril(7)May justify homicide

1. Limitationsi. Some jx limit it to emergencies created by natural

forces

ii. D may not take life of another to save himselfiii. If duty is owed (ship captain) may not kill to feed

othersiv. May be limited to protection of people & property, not

reputation or economic interests

2) MPC Rule- Ds conduct is justified if


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(1)He believes his conduct is necessary to avoid harm to himself or anotherAND

(2)The avoided harm is greater than harm from the crime AND(3)No legislative intent to exclude the conduct exists

1. Differences w/ C.L.

i. No immediacy requirementii. Dont lose defense if you created the peril negligentlyor recklessly (reduces the crime to level of culpability

ex: negligent homicide)

iii. It may be used for homicide & not limited toproperty

DURESS (excuse)

1) C.L. Rule5 elements must be present (not defense for murder)

(1)Another person threatens death or serious body harm (deadly force) to Dor 3rd party (relative)

(2)D reasonably believed threat was genuine(3)Threat was present imminent & impending @ time of criminal act(4)There is no reasonable escape except through compliance with the

demands(5)D did not cause the peril

2) MPC RuleDuress is a defense if (can use for murder)(1)Unlawful force or threat of force to D or another person AND (2)A person of reasonable firmness in Ds position would be unable to resist

the force1. Not available in D recklessly placed himself in a situation

where it was probable that he would be subject to suchcoercion

2. If D negligently places self in the situation then the defense isavailable for all offenses except those which the MR is

negligence3. Note:

i. no deadly force threat or imminence requiredii. may be used in murderiii. no requirement that 3rd party be a relative


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INTOXICATION

Common Law MPC

In-voluntaryIntox.

- Complete Defense when so affected the Das to render her insane w/in the insanity test

in the jurisdiction (Miller)

- Involuntary if (1) D did not know that the

ingested substances was intoxicating (2)

consumption under duress

- Strict Liability: Such crimes are covered

- 2.08(1): Must negative anelement of the offense (A/R,

M/R, or A/C).

- 2.08(4): Pathological is

involuntary grossly excessivein proportion to the amount

consumes and the D did not

know that she was unusually

susceptible

- Strict Liability: Such crimes are

covered

Voluntary

Intox.

- M/R: Can negate only a specific intent if

one is required by the crime (ex:

premeditation)

- No excuse in general intent crimes (ex.

recklessness) except if it is to the levelwhere it voids AR (ex brain damage)

- Strict Liability: Not included

- 2.08(1): Must negative an

element of the offense (A/R,

M/R, A/C).

- unawareness of risk due to

intoxication is immaterial

- Strict Liability: Not clear perhaps not

1) Involuntary Intoxication(1)Might allow an excuse if it negates MR even if low level of MR


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INSANITY

1) Culpability is either eliminated or mitigated

a) Distinguish diminished capacity: Insanity does not show that D lacked the M/Rfor the underlying crime. It shows that D lacked the basic capacity to engage in

morally reprehensible conductfailure to understand surroundings or control his

conduct2)3) 2 tests

i) MNaghten Test (cognitive)(i) All Ds are presumed to be sane so must prove that:(ii)at time of commission(iii) the party was laboring under such a defect ofreason

(iv)from disease of the mind (no physical damage only cognitive, not

anger)(v)which rendered him incapable of know a) the nature & quality of

what he was doing (ex. D thinks he is squeezing a lemon when in

fact he is squeezing his wifes neck) OR b)not to know that whathe was doing was wrong (ex. believed V was harboring evil spirit)

ii) Durhamact was a product of mental defect (not typically used)(i) D will at least be partially excused if 1) his offense was the

product of the mental disease or defect

iii)Irresistable impulse (volitional)

(i) Ds are presumed sane, however a D will be at least partiallyexcused if

(ii)1) at the time of the offense 2) he acted from an irresistible &

uncontrollable impulse; 3) Produced by mental illness or

defect.

1. ex: D has an irresistible urge to kill his wife (not a defense

in Mnaughten standard b/c D knew what he was doing &

intended to do it)

iv)MPC- Cognitive & volitional

(i) A person is not responsible if @ time of conduct as a result of

the defect, he lacks substantial capacity to appreciate the

wrongness of his conduct(cognitive) or to conform his conduct

to the requirements of law (volitional)

(ii)Volitional arm also encompasses affective disorders- where D

is aware of what he is doing, aware that is wrong b/ doesnt

care as a result of his mental disease ex psychopaths


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i. Psychopaths cannot use the defense ( 4.01(2): anabnormality manifested only by repeated criminal orotherwise antisocial conduct)

ii. Intoxication: Repeated intoxication cannot be a diseasefor the purposes of this section

RAPE

1) C.L. - (1) Carnal Knowledge + (2) Woman (not wife) + (3) Forcibly + (4) Againsther will + (6) Corroboration + (7) Prompt Reporting

1. Was there carnal knowledge (intercourse)? Slight Penetration is enough; emissionis not necessary.

2. Is the Victim a Woman and not wife?a. Check: Accomplice to wifes rape: Can be convicted for rapeb. Identify: Modern statutes may recognize the rape of a wife under certain

circumstances3. Was it Forcible?

a. Traditional Approach: Signs of utmost resistance were helpful inestablishing the forceful and lack of consent elements. Some jurisdictions

may require proof of resistance.a. Modern Statutory Trend: It is not required that defendant uses force to

overcome victims ability to resist.

4. Was it against Victims will (lacking effective consent)?

a. Any threats? Consent obtained by fear of great and immediate bodily harmto her or another is not real

b. Was Victim incapacitated? Intoxication, mental deficiency, or insanityc. Was the victim defrauded?

i. In factum: D deceives the victim into believing that the actinvolved something other than intercourse (nature of the act) There is Rape

ii. In inducement: fraud as to the reasons why she should consent tosexual intercourse does not invalidate consent. No Rape

iii. As to whether the defendant is husband? The jurisdictions are split.d. Was consent withdrawn? Split in jurisdictions

i. There is rape when the withdrawal is communicated to the maleand he therefore ignores it

ii. When consent is withdrawn during intercourse, D is not guilty ofrape (he can be guilty of another crime though).

a. MPC: ???5. Additional Elements? (1) Corroboration (2) prompt reporting.


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Mens Rea: Not clearly defined (usually treated as a general intent crime). Whether the D

must be aware that the act is being performed against the will of the woman or negligencewould suffice?

Defenses: D believed that victim consented. If evidence shows that there was no consent,

the question is whether mistake of fact is a defense.

i) Reasonable Mistake of fact: several jurisdictions require that (1) D honestlyand in good faith had such a belief (2) the factual mistake was objectivelyreasonable

ii) Unreasonable Mistake: Can be sufficient if actual knowledge of lack ofconsent is needed. American courts are reluctant to adopt this approach.

2) Statutory Rape: Intercourse with a victim under the age of consent is rape (usuallyby statute)

a) Age: varies with jurisdiction

b) Awareness of victims age: not necessary. This is usually a strict liability crime even a reasonable mistake of fact is no defense.i) Note: Some jurisdictions may allow this defense

c) Lesser Charge: Usually statutory rape is a lesser charge of rape

LARCENY/ BURGLARY / THEFT

Larceny Rule: (1) Trespassory (unlawful) Taking and (2) Carrying Away of (3) Personal

Property (4) of another person (5) with intent (MPC is purpose) to steal.

Robbery: Larceny + (1) property must be taken from the victims person or presence and

(2) taking must be accomplished by means of force, violence or intimidation

Burglary: (1) Breaking and Entering of the (2) dwelling house of (3) another in the (4)

nighttime with the (5) intent to commit a felony therein.


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PUNISHMENT

A. 3 General Principals limit the distribution of punishment in the CriminalJustice system, they are:

a. CulpabilityTo safeguard conduct that is without fault from beingcriminal

b. LegalityFair warningc. ProportionalityDo the rules match the level of punishment

appropriate with the level of blame

B. Principles of EvidenceEvidence is relevant is it is probative and materiala. ProbativeIs the crime more likely to be true based on the evidence?b. Materialwill the evidence affect the outcome of the case?c. Relevant evidence may not be admissible if it is under

d. privilegeprivilege against self incrimination, ore. prejudicial- will it affect result improperly, will it arouse undue

hostility?

1) Cruel and Unusual Punishment (8th Amendment)

1. Generally: The Eighth Amendment prohibits against cruel and unusualpunishment and it is binding on the States through the 14

thAmendment.

a. Two legs of the analysis: (1) the punishment is inherently impermissible(2) proportionality

2. Disproportionate Penalties: Some penalties that are not inherently cruel andinhuman are prohibited nevertheless because they are so grossly and outrageously

disproportionate to defendants conduct

a. Test One: Solem v. Helm (SC) To assess whether a punishment is crueland unusual for being disproportionate, three factors are considered

i. Gravity of the offense and the harshness of the penaltyii. Sentences imposed on other criminals in the same jurisdiction

iii. Sentences imposed for commission of the same crime in otherjurisdictions.

b. Test Two: Ewing v. California (SC) Three strike rule is notunconstitutional

i. Holding: Nothing in the Eighth Amendment prohibits Californiafrom using the law to protect public safety by incapacitating repeat

offenders.

1. Rationale: States have a valid interest in deterring andsegregating habitual criminals. The harsher penalty is

appropriate in dealing with those who are simply incapableof conforming to social norms i.e. those who cannot be

rehabilitated. Incapacitation and deterrence are legitimate

goals to punish with the rule.ii. Note: Justices do not agree how the concept of proportionality is to

be applied. There are two approaches that exist in tension.


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1. Solem: Case by case approach (Favorable to Defendant)2. Ewing: A bright line test looking at the law itself

(Favorable to Prosecution)

3. Death Penalty:a. General Rule: Not inherently excessive and may, pursuant to a proper

procedure, be imposed on a defendant and carried outi. Note: The prime punitive goals are retribution (depends onculpability) and deterrence

b. Can be Disproportionate: Supreme Court has held that death penalty canbe excessive and hence violate the Eighth Amendment

i. Mentally impaired offendersAtkins v. Virginia1. Holding: The execution of the mentally retarded is cruel

and unusual punishment.

ii. Young Murderers under 18Roper v. Simmons1. Holding: Eighth Amendment prohibits the imposition of

the death penalty on all offenders under 18.

4. Punishing for Status or condition: Robinson v. California (SC)a. Holding: A California law that makes it a criminal offense to be addictedto narcotics iS a cruel and unusual punishment and violates the 8

th

Amendment.

i. Rationale: Narcotic addiction is like an illness that may becontracted innocently or involuntarily (similar to being mentally illor a leper). State may require mandatory treatment of the illness,

but it cannot punish individuals for being sick. Graver violation of

the 8th

Amendment if Defendant did not use drugs within the state.

5. Mitigating and Aggravating Factors: These factors are taken into account todetermine whether the sentence given is too excessive

a. Death Penalty: Constitution Projects Death Penalty Initiative hasrecommended the reservation of the punishment for five scenarios

i. Murder of peace officer on dutyii. Murder occurring at a correctional facility

iii. Purposeful or knowing murder of two or moreiv. Intentional murder of a person involving the infliction of

torture

v. Murder by a person charged or convicted of a felony of anyoneinvolved with the criminal proceedings

b. Victim Impact Statements: Victims and family members (in case ofmurders) are permitted to speak at sentencing

i. Permissible: VIS is relevant in determining a defendantsblameworthiness, and is not barred by the Eighth Amendment(Payne v. TennesseeSC decision)

ii. Scope in murder cases: Crawford v. State (Missouri Case)1. Holding: The quick glimpse rule should be limited to

specific details concerning whether the victim left

dependents, parents or sibling.


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a. Rationale: Details of defendants good virtues orparticularized sufferings of victims survivors areirrelevant and may incite the jury to make an

arbitrary and emotional decision. The goal is merely

to establish victims identity and verification of

survivors who are reasonably expected to grief andsuffer.

b. Due Process: Although 8th Amendment does notprohibit VIS, there can still be Due Processconcerns (identify the tension on the exam).

iii. Problematic: Why have such statements in the first place? Whydifferentiate among victims to determine sentencing? Shouldnt alllives be weight equally? Should D be allowed to introduce impact

statements?

1. Note: Criminal law punishes on behalf of the society.Therefore, VIS may be appropriate the social loss and harm

caused by the Defendant.

III. Due Process Prohibition Against Vagueness / Fair Warning

1. Notice: (1) The Due Process Clause requires notice that people can tell whetherthe anticipated conduct will be criminal by examining the statute. (2) Sufficient

preciseness to discourage arbitrary enforcement or punishment procedural

violation of due process.

2. Facial Vagueness: No objective standard of conduct is specified at all (Very broadchallenge)

3. Ignorance of Law: Lambert v. Californiaa. Facts: California has a statue: Unlawful for any convicted person to be or

remain in LA for more than five days without registering.b. Holding: Notice requirement under the due process clause dictates that for

a conviction of failure to registration to stand, the defendant had (1) actual

knowledge or there is (2) proof of the probability of knowledge andsubsequent failure to comply.

i. Rationale: The court read knowledge requirement in this strictliability statute because (1) status is involved (2) an omission iscriminalized (3) possibility of ensnaring innocent (4) strict liability

crime.

4. Vagueness as to punishment: Can such challenges take place?a. Note: If two statutes criminalize the same conduct and give different

sentences, the statutes are not vague. They merely define the

recommended range of sentence.

IV. Other Constitutional Limits


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1. Ex Post Facto: Such laws (after the facts i.e. retroactive application of laws) aremanifestly unjust and oppressive, and thus are prohibited by the Constitution.

2. Bill of Attainder is Not permitted: A bill of attainder is special legislation thatdeclares a specific person to be guilty of a crime and subject to punishment

without either a trial or conviction.

3. Double Jeopardy: The Constitution provides that a defendant may not be puttwice in jeopardy for the same offence (Fifth Amendment). Therefore, repeatedprosecutions for the same or related crimes are prohibited.

a. Note: If a defendant is found not guilty of a charge, government may notpurse second proceedings no matter how strong its newly found evidence

is.

i. Dual Sovereignty Doctrine: A different state or federalgovernment may prosecute a person for the same crime so

long as there is jurisdiction over the defendant.

Documents

Crminal Law Gray 2011[1]