CRIME: FC+PP y is an act committed or omitted, in violation of a public law either forbidding or commanding it y is any social harm defined and made punishable by law y one without the other is not a crime COMMON LAW y reveals origin of crime y usually the most serious crimes BURDENS OF PROOF y burden of going forward: switches o depending on who must produce elements on every part of a case to defend
CRIME: FC+PP y is an act committed or omitted, in violation of a public law either forbidding or commanding it y is any social harm defined and made punishable by law y one without the other is not a crime COMMON LAW y reveals origin of crime y usually the most serious crimes BURDENS OF PROOF y burden of going forward: switches o depending on who must produce elements on every part of a case to defend
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CRIME: FC+PP y is an act committed or omitted, in violation of a public law either forbidding or commanding it y is any social harm defined and made punishable by law y one without the other is not a crime COMMON LAW y reveals origin of crime y usually the most serious crimes BURDENS OF PROOF y burden of going forward: switches o depending on who must produce elements on every part of a case to defend
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y is an act committed or omitted, in violation of a public law either
forbidding or commanding it y is any social harm defined and made punishable by law y 2 parts: o forbidden conduct o prescribed penalty o *one without the other is not a crime COMMON LAW y reveals origin of crime y usually the most serious crimes PRESUMPTIONS - CPR y Conclusive: Factfinder must find the fact. o example: jury must find malice y Permissive: Factfinder may find the fact. o example: infer a fact from other facts y Rebuttable: Factfinder must find unless. o example: switches burden of proof; jury must find the fact exists unless the other party presents evidence of the contrary BURDENS OF PROOF y Burden of persuasion: o prosecutor (beyond a reasonable doubt.) o prosecutor must produce elements on every part of a case to defend y Burden of going forward: Switches o depending on who must produce some evidence on all elements (i.e., a prima facie case) PRIMA FACIA y At first sight; On first appearance but subject to further analysis. y Criminally: A good case for the prosecutor but subject to the defendants evidence y EXAM: conclusion of the prosecutors case before you analyze the Ds case. o P has a good case of murder, until D raises self-defense. A FORTIORI y By even greater force of logic; even more so.; proved one big thing and automatically proved little things o If Ds guilty of robbery, a fortiori shes guilty of larceny. MENTAL STATE SPECTRUM y RPP Negligence - Gross Negligence Recklessness - Intentional HOMICIDE: y the killing of a human being by another human o not always criminal; cant be charged with homicide HUMAN: y Begins: o Traditional view: fetus must be born alive o Trend View: QVC quickened fetus (mother can feel the baby moving)= msl viable(fetus could have survived outside of the womb) = murder anyfetus can be considered a life = murder y Ends: o Traditional: heart stops o Trend: heart or brain stops y Accountability (defendants act and victims death) o Traditional: 1 year, 1 day o Trend: 3 years, 1 day MURDER H&M or H-JEM y homicide + malice o the killing of a human being by another human being with malice y homicide JEM o the killing of a human being by another human being without justification, excuse or mitigation MALICE FOR MURDER: y threatening mindset y malice distinguishes murder from manslaughter y types of malice can overlap in one set of facts y Types of Malice: o Specific Intent/ Express deliberate act intent to kill + PAD = 1 st degree murder - PAD = 2 nd degree murder intent to cause SBI = 2 nd degree murder someone stabs you and you shoot them in the leg after because you are out of it, intent to cause SBI D with no intent to kill shoots at Xs legs and she dies. o General intent/ Implied no provocation, abandoned heart reckless disregard = 2 nd degree murder Recklessness is indifference to a very high risk of death to human life (if you knew or should have known) Firing a gun at an occupied (non-threatening) vehicle constitutes recklessness someone stabs you and you shoot them after because you are out of it, prosecutor could argue recklessness for murder (not self defense) felony murder rule Res gestae = the thing done; includes times and places before, during, and after completing the crimes elements. during the commission, attempted commission, or escape of BARRK (Burglary, Arson, Robbery, Rape, Kidnapping) felony = 1ST DEGREE MURDER. duringother dangerous felony = 2ND DEGREE murder conclusively presumes malice when a robber or co-robber kills someone when a non-robber kills someone, the courts split PROGRESSION OF HOMICIDE y All felonious homicide = murder. y Manslaughter distinguished from murder. y Murder-2 distinguished from murder-1 (connected to death penalty) y Involuntary manslaughter distinguished from voluntary manslaughter MERGER DOCTRINES y Felony-Murder Merger o Where D intended to kill or inflict SBI on the victimthe intention merges with malice for murder negating the presumption of malice. o the D can still be found guilty of murder via other types of malice, just NOT via felony-murders conclusively presumed malice o if murder happens during BARRK you still have to show PAD and the killing was intentional or intended to cause SBI which resulted in the death to be convicted of 1 st degree stops the old theory that if a murder was committed during a felony it was automatically first y Conspiracy Merger (Whartons Rule) - rare o where the target offense of the conspiracy inherently requires 2 persons to do it, and the target offense is completed, then the crime of conspiracy merges with the target offense o CANNNOT be convicted of BOTH conspiracy and the target offense. ONLY TARGET OFFENSE. o Bribery most common crime that requires 2 people (cantbe convicted of conspiracy to [bribe] and [bribery] because its a crime that inherently involves 2 people, conspiracy would be dropped, briery remains) o An agreement to do a crime is a conspiracy,which is a crime itself. DEGREES OF MURDER purely statutory y First Degree Murder: o felony murder under any BARRK felonies o deadly weapon doctrine: use of deadly weapon can infer intent to kill permissible but not conclusive presumption o PAD if any plan or weapon is prepared it is premeditated there is no amount of time necessary for it to be considered premeditated evidence that will help show this: manner, planning, motivation o Traditional PAD: fully formed intent did they really want to kill the person o Trend PAD: weighing and reflecting starts a little sooner than with fully formed intent see if they really thought about it EXAM: Whether the jury could have heard this evidence and found evidence of weighing and reflecting? Conclusion is could any trier of fact found all the elements of this crime. Appellate test for whether a conviction is valid: can any rational trier of fact be persuaded BRD? Going to get a new knife or weapon and reloading a gun shows there was time to weigh and reflect. y Second Degree Murder o everything else MANSLAUGHTER: H-M y Old common law - no degrees, considered murder if felonious homicide o malice murder defendant dies o no malice not guilty defendant free o manslaughterbecame a catchall (neither murder nor innocent) y Manslaughter frames: o Majority: voluntary v involuntary o Minority: 1 st degree - voluntary v 2 nd degree involuntary o Statutory: manslaughter, only a rule of provocation homicide VOLUNTARY MANSLAUGHTER HCB(S)-AP(O)-MSP(S)-BCOP(O) y homicidecaused by adequate provocation making sufficient passion before a cooling off period y could be guilty of voluntary manslaughter if kills in self defense using excessive force y more of a defense tool because otherwise its a 1st degree murder conviction, if theres a provocation this can help your client y Rule of Provocation Test CASC - SOSO o homicide caused by - subjective o adequate provocation- objective o making sufficient passion- subjective o before cooling off period-objective objective analysis - reasonably prudent person subjective analysis - based on the facts of the case from the Ds point of view of how they felt y mitigates murder to voluntary manslaughter y despite Ds passion causing the death, the provocation must be adequate o mere words are not enough, however, words that inform the D about something can be up to the standard of creating provocation y when you have a series of provocations, each time the cooling off stopwatch startsimmediately after the provocation could be separate provocations that build on each other y husband and wife getting divorced and her filing battery charges is not adequate provocation (RPP wouldnt do it) to shoot her y someone stabs you and you shoot them after because you are out of it, could be voluntary manslaughter due to provocation (not self defense) y BORCHERS: D shoots her she was saying kill me shoot me you chicken! She was having an affair and always threatens to kill herself. o Provocation can be adequate via the last-straw approach and evolve over time o Doesnt have to be instantaneous; ex: battered wife syndrome IMPERFECT SELF DEFENSE TO VOLUNTARY MANSLAUGHTER: UBK+T y unreasonablebelief you are about to be killed y homicide triggered by terror can mitigate murders malice to voluntary manslaughter because it would provoke a RPP y SETY: D camping and weird drunk guy wakes him up has weapons and points gun laughing. o 1st action site: V shot in side (self defense) o 2nd action site: 2 shots in backchokedcut clothes o 3rd action site: Setys view: Cue ran 2nd time more long-range shots in body + one shot in head (= self-defense?) Prosecutions view: 2 close-range shots in body + one shot in head. (= malice?) Courts view: Prosecution view + Ds provocation and terror. (= voluntary manslaughter.) PERFECT SELF DEFENSE TO VOLUNTARY MANSLAUGHTER - RBK y reasonable belief you are going to be killed y someones coming after you EVOLUTION OF FAULT IN INVOLUNTARY MANSLAUGHTER y ancient common law: strict liability no fault required y subjective fault required (D knew at fault) y objective fault (RPP would have known) y now, either subjective or objective INVOLUNTARY MANSLAUGHTER UK+MorGN y unintentional killing where the D has committed a misdemeanor or where the D has acted grossly negligent y in the commission of an unlawful act, not amounting to a felony; or in the commission of a lawful act which might produce death, in an unlawful manner, or without due caution or circumspection y homicide must have resulted from the defendants failure to exercise due caution and circumspection y playing a dangerous prank on your friend intending to scare him which results in his death would result in involuntary manslaughter y Traditional causes of involuntary manslaughter GN,FR-MIS,MMR-IVLLS o Gross (criminal) Negligence- Whether the D knew or shouldve known that their was a high degree of risk in what they were doing, just a little bit shy of being reckless. RPP would associate the act with a high risk of death or SBI must be a foreseeable risk To be grossly negligent, D need not be conscious of the high risk. leaving your kids at home alone and the house burns down is not a foreseeable risk P could argue grossly negligence because she locked the door from the outside. D could claim she was going to get milk and trying to protect kids. being prone to a disease which makes you unconscious resulting in the death of another o Commission of a Malum In Se- an act thats considered evil. Misdemeanor manslaughter rule. D with no intent to kill or cause SBI trips X who is running, they fall and die o Intentional violation of a life and limb protecting statute. blowing thru a stop sign LEGISLATIVE TRENDS FOR INVOLUNTARY-MANSLAUGHTER GN-mn-vh y Majority: Negligent homicide statutes (like traditional involuntary manslaughter) require gross negligence o similar to involuntary manslaughter, but has been legislatively created as another crime o Statute does not require consciousness of risk; requires subjective or objective. Should have known of risk. It doesnt matter that you didnt personally know as long as you should have known. o Drunk husband and wife get in a fight, he puts a gun on the bed, she puts it to her head, he tries to slap it away, she dies. No evidence who fired gun. hisnegligence was putting the gun on the bed y Minority: Negligent-homicide statutes require only ordinary (mere) negligence. y Minority: Negligent-homicide statutes are limited to homicide by vehicles. ASSAULT AND BATTERY y Assault: ABorIS+SI o attempted batteryor intentional scaring, with specific intent y Common Law assault/ Attempted battery:SI+SS+(ACB) o specific intent to commit battery o take substantial step towards committing battery o in some states you must have some actual ability to commit the battery. in jail you dont have ability when in bars and reach out. y Modern (tort based) assault: SI+A+AA o Specific intent to create apprehension o an act or substantial threat of force o actual apprehension of the victim y Battery UAFA+alGI o Unlawful application of force on another, requires at least general intent o D is validly convicted of Battery a fortiori D can be convicted of attempted battery when D also had specific intent to commit the battery o D is validly convicted of Battery but cannot be convicted of attempted battery when D committed the battery via gross negligence o D with no intent to kill or cause SBI trips X who is running. No one dies o D can set in motion something causing unlawful touching. You push me and I fall into her and youre guilty of battery on me and her. The touching can be unconsented to, or consented to but under false pretenses AGGRAVATED ASSAULT AND BATTERY SI+MRRMSBIorDWorSS y D had the specific intent to commit murder, rape, SBI, robbery, or mayhem. y D uses a deadly weapon y Victim had a special status, such as police, firefighter, pregnant woman, elderly, infant. COMMON LAW BURGLARY B+E+D+OA+AN+WICFT y Common Law: common law burglary is more severe and most narrow o Breaking doesnt require a smashing no breaking if D is authorized to enter can be breaking if authorization is conditional D could only enter at certain times or on certain days only requires unauthorized physical force can be the slightest touch of force, opening a door includes further raising a window previously raised a fraction of an inch o Entering only requires part of Ds body cross the plane of the threshold. provable circumstantially kicking the door in would mean his foot crossed the threshold the use of an object is not entry, unless the instrument used to break, is also the instrument used to commit crime (constructive entry) fraud vitiates consent to enter includes sending in an agent (monkey trained to steal, another person) o Dwelling a place where a person sleeps includesa shop attached to the dwelling includes the curtilage, meaning places immediately proximate to the main dwelling o of another cant be convicted of a burglary of your own house landlords& invited guests can burgle the occupants premises can include another roommates room of an apartment, but not the commonly shared areas o at night determined (at C.L.) by ability to discern faces by sunlight modern statutes may say 30 minutes after sunset and 30 minutes before sunrise Breaking at night includes partially by day and finally by night. o withintent to commit a felony therein intent has to be formed before you go in a building provable circumstantially -infer intent can include more than one structure can be guilty despite not committing the crime not guilty (at C.L.) if later decides to commit a crime after entering breuks ln to steul somethlng und chunges hls mlnd; stlll burglury y ** FOR TEST: start with common law and analyze why is or is not 6 elements, then when move on to modern burglary dont have to repeat yourself you can just say see above. Deal first with most complex; it makes it easier. MODERN STATUTORY BURGLARY: EorR+UorU+BorOS+WICCT y enlarges the scope of common-law burglary and so its easier to find somebody guilty y all states have statutes for burglary y Entering or remaining o crossing the threshold o staying there if youre not supposed to y unlawfully or unprivileged o fraud vitiates consent o if told to leave and you stay then your unlawful y building or other structure o most states require big enough for a human y with intent to commit a crime therein o the intent can form after entering (Nordstrom) o not just a felony; any crime o infer intent to do a crime o guy is found inside premises to get out of a lighting storm; no intent o breaks in to steal something and changes his mind; still burglary y Statutory burglary creates degrees by dropping many C.L. elements. o but includes common-law burglary as one of the most serious forms, often 1st degree. o circumstancial evidence; why would he break through the wall if he didnt want to take anything? o permissive presumption COMMON LAW ARSON AB+D+OA+M y actual burningthe dwelling house of another with malice o only a small part has to be burned o the malice may be implied when it doesnt exist in fact o if without justification, excuse, or mitigation, one sets fire which obviously creates an unreasonable fire hazard for anothers dwelling, which is actually burned thereby, the result is common law arson even if it wasnt intended someone else had to be dwelling for it to be considered arson, couldnt be charged with arson if nobody else lived there and you burned your own house down MODERN ARSON AB+B+M y malicious actual burning of any building y many states have included ones own dwelling COMMON LAW LARCENY- T+TP+CA+PP+OA+ITS y trespassing: o must be without consent o deceiving an owners agent is trespassing against owner y taking possession y carrying away: o moving the object at all y personal property: o cant be real estate y of another y with intent to steal (aka felonious intent/ animus ferendi) o deprive owner for unreasonable amount of time such that it is unlikely the owner will get it back y larceny by trick/theft by deception is just a form of larceny y Going to a store and stuffing things inside of a chest and just paying for the chest o security and cashier were agents o deception of a store is satisfied by fooling a store cashier o deceptioncan be by not saying anything o dont have to wait until D outside of store, just have to prove they passed the cashier y Victim owes me $2 for work Ive done, so victim hands me $1 bill + $10 bill, thinking shes handing me only $2. I see the mistake but keep the $11. COMMON LAW ROBBERY L+ForF y Larceny + force or fear y intent to steal does not include intent to take back property you think is your own y forcible retaking of ones own property is/isnt robbery o Majority: not robbery (as per Butler) o Minority: robbery COMMON LAW EMBEZZLEMENT C+PP+OA+BOEWP+WITS y conversion o treating anothers property as your own y of personal property o you cant embezzle real estate y of another o it cant be your own property y by one entrusted with the property o distinguishing element of embezzlement. o having care, use, or disposal of the property. o Keyless person isnt entrusted with contents of a locked box y withfraudulent intent (intent to steal) o can be imputed/inferred on D COMMON LAW FALSE PRETENSES MKFR+CTP+PP+WITD y Making a knowingly false representation y causing title to pass o the person gives you a legitimate right to own the piece of property o charitable donations used for ones own purposes y of personal property y with intent to defraud (intent to steal) y Minority: promise without intent to perform is sufficient to convict for false representation o subjective y Majority: The false representation must be of a physical (external, objective) fact. (Thus a false promise is not sufficient) o objective y I falsely say Ive done $11 worth of work. Victim knowingly gives me $10 and $1. I tell small rent-a-car owner Ill bring new business, so hell rent me a car for my check. I know check is no good, but I use car for a day without paying for it. no false pretenses, no embezzlement, no larceny
3 evolutionary stages of theft crimes y 1st = common law larceny, false pretenses, embezzlement o each are mutually exclusive, so guilt of one precludes guilt of another y 2nd = consolidated theft statute o Allows DA to charge Defendant with a general statute, then investigate the facts and prove all the elements of one crime. (Avoids acquittal by being charged with the wrong specific crime). o Combine separate crimes of Larceny, False Pretenses, Embezzlement, Receiving Stolen Property, Etc. in one statute. o Not all states have adopted consolidated theft o you cant convict on consolidated theft, but easier to convict for a crime o P has to prove all the elements of one crime o test: some states have consolidated theft statutes where if convicted of embezzlement, a fortiori he cannot be convicted of false pretenses and larceny y 3 rd = modern theft statute o legislative intent is to enlarge/ broaden the scope of Larceny, False Pretenses, Embezzlement, R.S.P. Etc. (other theft-type crimes) someCourts stlll put some llmlts on the broud scope of modern theft stututes. o Some modern theft statutes replace trespassory, "taking," & "carrying away" with obtains unauthorized control over a thing of value knocks out common law elements and substituting broader ones o Depositing a check that isnt yours and taking the money is false pretenses because the bank robbery act is a modern theft statute that covers false pretenses o Theres no single prototype of a modern theft statute. o Selling something that isnt yours without touching it o Confidential information is not a thing of value in modern theft statutes. o Modern theft statutes can cover intangibles, e.g., services. o if cant convict on common law crime, you now can under a modern theft statute o McCARTNEYS MODERN THEFT STATUTE Obtains unauthorized control (dont need an actusreas anymore) Over property (personal, tangible property) Of owner (i.e., another) With intent to deprive [permanently] Deprives [permanently]. o If D can be validly convicted of common law larceny, embezzlement or false pretenses, then, a fortiori, D can be validly convicted under a consolidated theft statute (in a jurisdiction that has such a statute). IMPUTABILITY OF AN ACT y ****Need actusreas (act) and mensrea (intent) for every crime y Impute = to ascribe/ attribute o to put a person/ act in a particular category (such as criminal) y So, for us = whether a person/act criminally liable y cant impute intent to do a crime y impute knowledge or guilt based on inferences (circumstantial evidence) y cant beconvicted of unlawfully making liquor just because you had the supplies to do so o Sometimes as here, its purely a factual issue: wheres the evidence of what D did? y wanting or planning to burn a house down cannot impute you with arson if you didnt act y you armyourself to kill someone, he tries to axe you, then you shoot him o imputing criminality to an act depends on the intent that caused it (at the time of the act did you want to kill him or were you protecting yourself) y prior intent (to carry a gun with intent to kill) cant conclusively presume a later intent to shoot with intent to kill o HYPOS D and X are armed and intend to kill each other. Neither knows of the others intent. They meet and both simultaneously shoot at each other. X is killed. murder, malice and premeditated intent to kill If D shot at me first, if you are still shooting not to protect but just to kill. still malice and intent D changes his mind before they meet. X shoots at D who kills X to save his own life. no murder, just like Ryder case self defense y a criminal act which can be imputed to a defendant generally requires affirmative action by the defendant y Driving doesnt mean sitting behind the wheel in a moving car y jurisdictions variously define DWI v DUI; driving control operating y statutorily conclusive presumptions re Intoxication and under the influence (from defendants blood alcohol) y getting hit by a car that puts you in the middle of an intersection is not a positive affirmative action to which you can be imputed of the crime y knowledge of a condition to make you unconscious, intent can be imputed (seizure) o If this had been his first blackout he wouldnt have had notice so he would be excused y criminal act requires defendants consciousness y sometimes defendants prior act (getting in the car to drive) is the imputed conscious act o HYPO: If park car on hill and dont turn wheels or brake. While walking away car starts moving and a lady with baby get hit. Guilty? Didnt put brake on, didnt crimp wheels, failure to do that when a RPP would have done = grossly neg action that caused homicide = invol manslaughter. If fell asleep and kill another driver, are you guilty? Yes, b/c you knew it was 2am and decided to drive, had notice b/c a RPP needs sleep Gross neg + homicide = invol manslaughter y criminality for possession can only be imputed for knowing possession;example: somebody slips something in your pocket and you get busted is not knowing y Knowing possession can be shown by power and intent to control o control defined by you could control if you wanted to y Possession is not imputed by defendants mere presence. y under statutory law, imputed intent of the power to control happens if you have a certain amount of drugs (dependent upon state) ATTEMPT CRIMES: ICTO+OA (TRvSS) y Attempt o intent to commit the target offense o doing some overt act toward it too remote v substantial stept y *for every completed crime, the person has completed an attempted crime.... he can be convicted of murder and attempted murder but the two would merge for sentencing y think of it as a timeline everything leading up to the crime, at some point the attempt of the crime happens (think, buy a ski mask, get someone to help, attempt to commit a crime, right before the crime you have committed at least the attempt, once the crime is committed you can be convicted of crime and attempted crime) y Policy reasons; to deter bad acts and reform, even though didnt commit crime y Attempt conviction is valid when the TO is completed or not completed y as long as its a specific intent crime and you cant convict on the actual crime, there was still attempt before the act y Target Offense - what crime are they attempting to do y if cant convict on actual crime, try attempt y 7 PROBES ways to look at the evidence and if you use these you wont miss an issue. THESE ARE NOT ELEMENTS/FACTORS!Courts weigh the probes differently in different contexts. o did Defendant intend to commit the target offense? o Was what Defendant did wrongful in itself? o Was it possible to commit the crime by any means? o Was it possible to commit the crime by Defendants means? o Was Defendants act preparatory or perpetrating? o Was Defendants act too remote to be considered? o Was the Target Offense sufficiently wrongful? y MOFFETT: Moffett and accomplice tied up victim and threatened her with a knife into writing a suicide note which would be followed by taking pills that would make her sleep for 48 hours and to drink alcohol eventually leading to her death. The victim wrote 1 line and escaped and police found the evidence of the victims story in her apartment. o Attempt can be imputed (as here) by focusing on only 2 probes 1 and 5 y RIZZO: Defendant and 2 accomplices planned to rob Rao of his payroll ($1200) that he was to carry from the bank. 2 of the 4 had firearms and drove by the bank looking for the hold up victim that the D was to identify. 2 police officers watching arrested the men left in the car after D jumped out of the car. D was later arrested. o Theres no attempt when the TO is too remote 1, 2, 3 (yes could have robbed the guy but not at that time b/c Rao hadnt even taken money out and not at that place. 4 could argue no5 preparatory but not perp b/c couldnt find him. 6 too remote? YES;ct says that is the issue here. o HYPO: 2 guys to rob a clerk, wait outside where think he comes out and before clerk comes theyre arrested. Use Rizzo approach? Too remote? Clerk was a few seconds away, so close enough where no remote issues. In terms of time and distance, it is not too remote in the hypo. A few seconds and feet away instead of how long in Rizzo case. Guys could be convicted of conspiracy y YOUNG: Officers had observed the Defendant and had reason to believe he was casing several banks. Defendant walked up to a bank in disguise; had a clip scanner on his belt, parked in rear of bank for some time, wore glasses, tipped his hat, wore a long jacket and an eye-patch. He tried to enter the bank, which was closed, and ran back to his car, drove off while removing the said items. o Some states combine probes 5 and 6 via substantial step test (NY) o Substantial step test assumes theres sufficient evidence of intent and requires D take a substantial step towards TO guilty when overt act amounts to substantial step y Substantial Step (Rizzo) v Too Remote (Young) o split of authority substantial-step test looks back to the time and place from which D began; looks backwards from arrest satisfied sooner in time and shorter in distance; thus it enlarges the scope of attempt and is preferred by prosecutors too-remote test looks forward to the time and place of Ds intended target offense; looks forward from arrest satisfied later in time and longer in distance; thus it narrows the scope of attempt and is preferred by defendants LEGAL V FACTUAL IMPOSSIBILITY: y legislative trend is to abolish impossibility, not a defense in some states y Legal Impossibility = defense to attempt o T.O. is impossible to commit by any means or Ds fully carried out plan is not a T.O. legally impossible to commit the crime being convicted of o Objective lawyers/ judges for purpose of criminal law (lean) Condemns dangerous acts. focuses more on actusreas (no harm no foul) inclined to find less people guilty y Factual Impossibility = no defense to attempt o T.O. is impossible by Ds means or a fact unknown to D prevents carrying out Ds plan o Subjective lawyers/ judges for purpose of criminal law (lean) Condemns dangerous minds focuses more on mensrea (people are dangerous) inclined to find more people guilty Judicial trend is toward subjective school. y MITCHELL: armed himself, went to the bedroom window of the victim where D believed the victim was sleeping, and attempted to assassinate and murder him. The victim was mistakenly not there. o 1, 2, 3 is yes but person wasnt there so since D didnt fully carry out his plan then you see not legal impossibility. 4 wont work, but look at alternative phrase fact known not by D? Yes. o Attempted Murder: Intent to murder/ kill Armed (with gun, knife, etc.) At place where confidently expect victim to be o Factual impossibility demonstrated key probe is that D thought V would be there o General attempt perimeters are broader than attempted battery (assault) First kind of crime recognized as attempt is assault (attempted battery) o Perimeters of attempt murder are very broad because serious o HYPO If v is out of town, is D still guilty of attempted murder? Yes, b/c probe 7 dominates the analysis. y ROJAS: Hall stole something and arranged to sell it to Rojas, Rojas convicted of receiving stolen property which was then lessened to attempting to receive stolen property o Trend side of a split regarding attempted RSP of once-stolen property o Trend: factual impossibility exists when the defendant is blocked from the target offense by a fact unknown to him (D is guilty of attempted RSP if D doesnt know the received property was recovered) extends even to attempt RSP for non-stolen property y HYPO: no original larceny but D thinks hes receiving stolen property o traditional: no, legal impossibility o trend: yes, factual impossibility y BOOTH: thief stole a coat and was going to sell it to Booth for a low price but it was intercepted by cops in the mean time o Traditional: a legal impossibility exists when D does everything intended but its not a crime (if D receives property that is no longer stolen, D is not guilty of attempted RSP) o Traditional side of a split regarding once-stolen property ABANDONMENT y D voluntarily changes his mind and his overt actions towards the target offense before any substantial harm is done o D stops the attempt voluntarily, prior to substantial harm y only a defense to attempt crimes y STEWART: held up Luedtke at a store but stopped in the process because cops showed up; Stewart claims abandonment o Traditional: D cant negate a completed crime, not even a completed attempt crime o Trend: abandonment doctrine negates attempt crimes o (neither abandonment present in Stewart) o HYPO: D, intending to torch Xs dwelling, goes there, sets candle with tinder under Xs wooden porch, and bends down to light the candle. D is arrested before he lights the candle. crossed the line from preparation to perpetration; some courts may find guilty of attempted arson before lighting it Same as above except D lights the candle, watches it for a moment, then extinguishes it and removes the tinder. look to 7 probes.... 2 elements to abandonment voluntary through change of heart (I think its a bad idea to do this, not because the cops show up, reversal of mensrea) and before any substantial harm is incurred y BLECHMAN: solicited someone to burn down a dwelling house o solicitation is seriously (mensrea) urging/ asking (actusreas) another to commit a crime o to be guilty, D must solicit what would be a crime for the solicitee o ifsolicitee agrees to commit a T.O. and its completed, the solicitor can also be validly guilty of the T.O. via rules of aiding-and- abetting solicitor would be considered an accessory before the fact if the crime had been committed o abandonment is a defense to solicitation as a legislative trend o solicitation and the act are 2 separate crimes solicitation is a crime itself; attempt to commit a crime consists of an overt act to commit the crime with more than intent or preparation o can be convicted of solicitation and conspiracy but cant be SENTENCED for both o HYPO: D lies to X: my tvs at Genells and she asked me to pick it up. Will you get it for me? X innocently picks up and delivers the t.v. to D. actusrea without mensreas, not guilty of anything; D urges X to pick Vs pocket, although D (but not X) knows Vs pocket is empty. X puts hand in Vs empty pocket. D could be convicted of larceny because he sent in an agent NEGATIVE ACTS: y When a non-act becomes an negative act o legal duty, knowledge of facts giving rise to duty, ability to perform the duty, failure to act ->actusreas o ASK: What is the duty and to whom? y %,''/( detectlves found u deud three-month-old buby ln un extreme stute of mulnutrltlon, found blood spots from u dluper rush. The medlcul exumlner reveuled thut the buby hud not been fed for severul duys und wus dehydruted. Mother churged o Law will impute an actusreas when you have a duty to act and negative act. o reckless = 2nd degree murder. o parents have a legal duty; no legal duty for grandparents moral duty isnt enough y Infant safe haven statutes: o To encourage distraught moms from dumping kids; if leave w/ gov agency, then they would be shielded from prosecution for parental neglect. Rationale to prevent moms from killing babies. o back in the day, no child neglect if the kid was supported by somebody else the parents were let off; doesnt work like that anymore y TEXEIRA: mother got pregnant and informed Texiera of her pregnancy; mother let Texeira know when she had the baby; mother applied for welfare, and 1 yr after the birth a complaint was issued against Texeira for nonsupport of an illegitimate child o Typical child neglect statute: Parent Knew or should have known Knowledge of duty Neglects or willfully refuses To contribute reasonably ability to meet duty o (Here, D didnt have ability) o ActusReas = Duty to Act + Negative Act + Knowledge + Ability y JONES: Green was the mother of Robert and Anthony. Green arranged to have Jones take both children for monthly monetary compensation. Jones charged with abusing and maltreating both kids and involuntary manslaughter of Anthony (nonparent charged and convicted) o No duty results in no imputed negative act o Trend is towards recognizing more situations triggering duties to act o Duty can change when the circumstances change (ship hypo) o a negative act for a legal duty of care imputes criminal liability o 7 sources of duty to act constituting a negative act: Statute Status relationship Mother/father; spouses; parents/kids Contract (K) Voluntary assumption (+detrimental reliance) Ok I will do it, and other person will rely on that promise Creation of peril Control of dangerous beings dog that bites Landowner Make sure your land is reasonably safe ASK: what is the duty and to whom? o HYPOS: Working on job site and its lunchtime and hitch a ride on bulldozer see baby in field and it runs over kid. has to be a legal duty, not a moral duty If walking in seaport village and Dean Smith is having a party. He wanders off and falls off dock and you see him drowning in water and he drowns b/c you dont save him. no legal duty, moral duty What if when you see him in the water, you yell Die Dean! although it seems there is malice, still no legal duty Captain that realizes problem with ship and tells owner about problems and owner refuses and ship bad and passengers drown. still took the ship out, even though initial duty fulfilled by going to the owner. If owner says no, now duty is not to take ship out. guard at RR crossing how different that hypo 1? Duty for RR guard was # 3 this is his job, he has a contractual dutymaybe even a statutory obligation also. y DAVIS: failed to provide Carter with heat, food, liquids, or other necessities and Carter died. Daviss home was freezing cold, had no heating or food. Davis informed people she was responsible for total care of Carter, who was senile and totally disabled. Davis received Carters social security benefits and food stamps as a representative payee. o Court can imply a Kl duty from circumstances o Duties can overlap o Child has no CL duty to support a parent o Whether duty is fulfilled depends on RPP in similar circumstances o negative act of a legal duty imputes criminal negligence o imply contractual duty, voluntary assumption of care with reliance b/c takes over welfare, etc o No legal duty for child to take care of parent o HYPO: Statute requires kids to reimburse state for money spent on taking care of parents. Kid doesnt pay and is charged with parent- neglect Duty to pay the state, not take care of parents o Guy takes 2 kids to beach and kids drown b/c stranger takes them. Charged for death of stranger? No b/c no duty to a stranger. o Does father have legal duty to save the kids? Must act reasonably in that situation (RPP) Could argue he was negligent if he was a paraplegic y VAN BUSKIRK: argument with her boyfriend, ordered him to get out of the car and then struck him with her car, leaving Rose in the roadway. Rose was then struck by another vehicle. She is prosecuted for second injury (INVMSL) o The duty to assist a victim can be imputed from creating the peril o Dont let a dramatic positive act obscure a crucial negative act o Good Samaritan Statutes: cant be sued for mere negligence shield against mere negligence. Only get sued if grossly negligent. You dont have to render aid, but if you do, protected from suit unless Grossly Negligent. CONSPIRACY y Classic Conspiracy: once D is inside the conspiracy D is imputable with all of the T.O.s y HANKS: Defendants called Dubois who was the correction officer, beat him up and took his keys and alarm. Hanks went to look out for other correction officers who eventually reported to the scene when Dubois was not responding. The other officers found Dubois beaten in a cell and they found the screen to the dayroom bent up on a window that lead to an outside yard and 2 fire extinguishers kept in the bubble where the officers monitored the inmates. (Roque swung at officer) o Common law conspiracy: agreement between 2 or more people to accomplish an unlawful act or a lawful act by unlawful means with intent to commit an act which is a crime o statutory/ modern approach agreement between 2 or more people to accomplish an unlawful act or a lawful act by unlawful means with intent to commit an act which is a crime requires an overt act in furtherance of the crime only 1 conspirator needs to perform the overt act to prove the conspiracy but each conspirators furthering act is evidence that he was in the conspiracy. (overt act of one doesnt need to be criminal - target offense must be intended by the D to be convicted of the crime) overt act included to prevent wrongful convictions any furthering act is enough. Once you have overt act, now all it takes to get each conspirator in is for conspirator to do a furthering act. conspiracy can be imputed by Ds single furthering act modern law has a smaller scope than common lawstricter than Common Law if guilty of modern conspiracy, a fortiori, can be guilty of common law conspiracy y All conspiracys elements can be established circumstantially y Ds neednt intend to commit what they think is a crime, only intend to do conduct that is criminal. y Criminal conduct can either be intended goal of conspiracy. Or it can be the intended means to an end y RATIONALE for conspiracy: to intervene and cut off conspiracy before reaches goal of TO and combat the special threat that group activity presents. UNILATERAL CONSPIRACY y Traditional: cant conspire w/ undercover cop b/c they dont have required mensrea. However, if cop is just one out of 3 people, then there is enough to be convicted for conspiracy and cop is 3rd person. y Modern: Allow for unilateral conspiracy; by stat authority it is deemed possible to have a 2-person conspiracy even if other person is undercover cop. y Cant withdraw from a conspiracy (conspiracy is the agreement itself) but you can withdraw from guilt of the T.O.s o CL: you had to nullify what you had done before and communicate your withdrawal to everyone else in time for them to change their mind; affirmative act reasonably communicated to all conspirators o Modern statutes: timely notice to authorities so authorities can stop the crime; if crime is committed you can be convicted of the TO y Impossibilty is not a defense to conspiracy because conspiracy is a crime itself : special danger from group activity that is involved regardless of whether objective is impossible. o (Impossibility is not an argument for an ATTEMPT crime) y PAYAN: arrested for exporting stolen tractors to Mexico after Mark Ancira was arrested and possessed fraudulent invoices for 2 stolen tractors made out to Payan as purchaser (the target offense didnt require 2 people) o Rationales for having conspiracy/ societal threats: (469) More than one person together, more likely to get to your goal Decreases chances of abandoning Increases size of the crime (robbing a Bank v. 711) Increases potential of committing other crimes y Whartons Rule: o negates conviction for conspiracy AND the TO where the TO requires the same Ds (for a crime that inherently involves two people) adultery, dueling, bribery, incest, bigamy o 3rd party exception allows conviction for conspiracy o bows to legislative intent o legislature can change Whartons rules rebuttable presumption y Aiding and Abetting requires 2 people, but it is not a crime, just a link to the target offense or a link to the conspiracy itself y GEBARDI: man and woman were engaging in illicit sexual relations and she had to travel by train to do so. The woman consented voluntarily for the specified immoral purpose. Prosecutor is trying to get her for being a conspirator. o MANN Act: Legislation that says any person that transports a woman or girl can be nailed by violation of MANN act and not woman or girl. ability to prosecute man b/c can call woman to stand and tell what happened b/c cannot be prosecuted o Legislative intent sometimes provides immunity from conspiracy o Intent of MANN act is to immunize a passive woman from the TO and conspiracy A woman can be convicted of conspiracy if she is more than just passive. If more active, then can be convicted. o aD cant conspire with himself y LOSCALZO: Ds made fraudulent representations made in connection with obtaining a contract with the postal service. Ds were convicted of conspiracy to defraud the US and several counts of mail fraud. o Aiding and abetting is not a crime; she was late to the party but still involved if she aids and abets she can be found guilty of conspiracy. o Aiding and abetting can link the D to T.O. AND the conspiracy itself o A conspirator can be either an original member or an aider and abettor of the conspiracy o Guilt for conspiracy via aiding and abetting requires D knowingly acted to make the venture succeed. (deminimusmensrea) LINKS TO TARGET OFFENSES y PINKERTON: Brothers in trouble and Daniel argues only his brother committed substantive crime. Claiming how can he be convicted of conspiracy b/c Walter did it and he was in prison. o Pinkerton Rules Goal: convict everyone in conspiracy of all possible crimes even if they didnt want to or never would have committed the crime so long as the crimes were in furtherance of or foreseeable from the target offense o crimesof any conspirator can be imputed to all conspirators when they are in furtherance of or Reasonably foreseen within the conspiracy scope Above holds regardless of Ds presence, participation or knowledge of the TOs dont have to know the exact details of the crime Pursuant to - In execution of - - Natural consequence of o a conspirator is imputable with the TO and can be convicted of a TO in which he did not directly participate o the act of one partner is going to bind the partnership o Conspirators are guilty of conspiracy + all crimes in scope of the conspiracy o 3 step analysis: is there a conspiracy? Is D a conspirator? Is the crime within the conspiracy scope? y HYPO: D and A agree to rob X. X puts up unexpected resistance, so A kills him. o can be validly imputed also b/c it was reasonably foreseeable y D and A agree to burgle Xs home. While in the home A sees Y (his secret enemy), passing outside where Y cant see or interfere with the burglary. A kills Y. o Outside the scope y MARQUIZ: 3 guys were present in the killing of a girl who stole some things from Marquizs apartment, 3 separate trials for each defendant, Marquiz was found guilty of conspiracy (also 1st degree murder) and the other 2 were not o Traditional: Consistency rule requires at least 2 guilty conspirators if tried in 1 trial o Trend: Exception to the conspiracy rule,(if different trials) allows one guilty conspirator if theres evidence of another conspirator and The other is acquitted in a separate trial, or The other has charges dismissed; or The others conviction is reversed o HYPO: A and B charged with conspiracy but the prosecutor dismisses As charge. a Defendant is imputable with conspiracy when the other alleged conspirators were found not guilty in separate trials o A and B are convicted of conspiracy in the same trial but As conviction is reversed on appeal. y HUGGINS: An indictment charged the warden of a prisoner and his deputy with the murder of the prisoner; warden was unaware of what the deputy was doing to the prisoner o Agency: Respondeat superior doesnt apply to crimes involving a mensrea and actusreas, only SLOFs. When a principle is imputed with the crime of an agent. Common Lawresondeat superior does NOT impute crimes Respondeat Superior (superior shall respond): hold an employer/principal liable for the wrongful acts of an employee/agent committed within the scope of the employment/agency An agents mensrea can NOT be imputed to the principal o A principal and the agent are guilty if the agent commits a crime under the principals orders o A principal is guilty if he knew or should have know of the agents acts o HYPOS: o Suppose warden had ordered deputy to put guy in cell knowing he would die, warden guilty? warden, guilty deputy, still guilty but it depends on the mental state of the deputy. Guilty through negative act. o What if warden doesnt want guy to die and only knows cell is over sewer. Still imputed with the crime? Negative Act was there a duty to act? Prosecutor could argue warden had a duty not to put guy in place where in peril. Then put the wardens failure to do duty on scale if failed with neg or recklessness? If grossly neg then guilty of IMS, if recklessness = 2nd deg murder o What if warden doesnt know of the sewer cell but should have known, how analyze? Negligence? GN? Or Recklessness? Was it so clear that it was known he would die? Argue either way y FUR TRAPPER: D is a corporation selling fur coats on an installment plan under the name of Fields. Mrs. Stanley purchased a coat on the plan, but upon completion of payment she was offered a coat that was not the one she had selected (diff make and size), who was Mrs. Owens coat in which they tried to resell it. 4 brothers scamming. o Common law: cant convict a corporation of a true crime but you could convict of SLOFs Early CL: no corporate crime b/c cant hang nothing; no mensrea; o Modern Law: corporationcan be convicted of a crime if you find mensrea in minds of the officers condone it, aware of it, should have known about it o A corporations guilt of CL crime requires the mensrea of its leaders o a corporation can be imputed with the crime of its agents o have to show evidence acting on behalf of company, get the mensrea in the mind of the officers, not necessarily the very top o nationwide corporation and divided in regions and you had a regional manager, enough if you just have that regional manager PARTIES IMPUTABLE TO A CRIME VIA ACCOMPLICE LIABITY y Solicitors - liable for solicitees action o solicitors can lead to conspiracy if the solicitee agrees to the solicitors joint criminal plan y Conspirators o conspiracy can lead to guilt of all offenses (including attempt crimes) in furtherance of or reasonably foreseeable from the conspiracys target y Aider and abettors - helps the crime succeed o aiding and abetting can lead to guilt for conspiracy as well as for target offense y Agents - warden/ deputy y Corporations y Accessories before the fact/ principals o In almost all jurisdictions today persons who were accessories or principals at CL (except accessories after the fact) are now classified as principals. y BEEMAN: was part of the planning of the crime with Gray and Burk, but two days before told Gray that he didnt want to participate in the robbery; was not present during the crimes; Gray and Burk plead guilty to robbery; was convicted based on aiding and abetting his acquaintances Gray and Burk. D had described the cars. o Dont need a conspiracy for aiding and abetting o Aiding and abetting is a LINK to the TO and not a crime o Guilt by aiding and abetting imputes Ds guilt as a principal o Split over elements of guilt by aiding and abetting Traditional: requires aiding-and-abetting have only knowledge of others intent to commit T.O. more serious crimes Trend: requires knowledge and intend to commit T.O. less serious crimes o HYPOS: (only intent is to make normal profit) Sell gas to someone who will give it to a wartime enemy Treason Selling gun to intended murderer? Maybe murder. (cts found guilty for mere knowledge) Selling ingredients to bootlegger? No. Sell dynamite dress to hooker? No. Trend rule used here (cts found not guilty for intent) y TRUESDELL: son shot ex husband and mom charged with accessory after the fact. o Modern statutes make accessory after the fact a separate crime Obstruction of justice - Harboring a fugitive - Aiding escape o Many states have exempted certain people from being guilty of this crime; close relatives (mom, dad, sister, child) o accessory after the fact is separate offense and does not require principle be convicted legally, just sufficient evidence to prove he committed the crime factually accessory after fact is imputable when principle not convictable o 4 elements for accessory after the fact Completed felony Knowledge that person you assist completed the felony Conceal or aid the felon withSpecific intent to hinder apprehension o HYPO: o With intent to kill, A shoots and wounds B. C knows all this and helps A avoid arrest. Then B dies. At time hid him, just thinking Dean has been shot. That determines what you are accessory to here, attempted murder. What they KNOW at the time RESPONSIBILITY y Largely focus on the mensrea of the D y Mens Rea categories: o General Intent Focuses on act ask if D had knowledge of act or was criminally negligent (gross negligent or Reckless disregard) about, doing the act TEST: A reasonably prudent person everytraditional crime requires at leastgeneral intent to do the act o Specific Intent Focuses on the result Did D desire or was he substantially certainty of the result TEST: subjective, look at particular D some crimes also require specific intent to accomplish a result (in addition to general mensrea) y **Look at all elements and pick out mensrea which element and determine of specific intent or general intent crime MENS REA PRINCIPLES y Always need general intent to do the act. y GIAN CURSO:Drs were doctors of deceased, whose tuberculosis became active. Drs treated deceased through natural remedies only. Deceaseds health worsened, was hospitalized, and died. Hospital Drs testified that had the deceased been treated by approved medical methods and given drugs available, his disease could have been controlled convicted of involuntary manslaughter. Holding themselves out as not just chiropractors but chiropractors who could cure cancer. This is not acting with the approved medical methods accepted. o 3 ways a reasonably prudent physician can be grossly negligent Grossly ignorant of accepted and established remedies and methods Grossly incompetent in actions Grossly negligent in giving patient instructions o Negligence for a D who holds himself out as an expert is determined by that RP expert o Gross negligence makes D responsible for general intent crimes despite desiring a beneficial result I.e., having no specific intent o A person cannot generally consent to death or SBI y DOBBS: broke into and entered the house of Bailey and cut off Baileys horses leg and the horse died. Horse was worth 40 guneas. D tried for killing of horse. But we are looking at the burglary. o Required intent for burglary is specific intent to commit a felony. o D intended to incapacitate horse from running. That is crime of malicious mischief, which at common law was only a misdemeanor. Intent was misd. o Here, that intent to commit a felony did not exist, thus D gets off for burglary charge. o Here, D had a specific intent to commit a misdemeanor. o Ds intent to do one crime doesnt automatically make D responsible for another crime o Where specific intent is required, another mensrea isnt sufficient o Burglarys specific intent to commit a felony isnt satisfied by Ds intent to commit a misdemeanor. y THACKER: D and 2 men where drunk. The victim had a light on and the D, intending only to shoot the light out, nearly hit the victim. Convicted of attempted murder. o Attempt crimes need specific intent, and here D didnt specifically intend to kill them (failed the element for an attempt crime). o A general intent cant satisfy the need for specific intent o D can have sufficient mensrea for a completed crime, yet insufficient mensrea for an attempt crime o Conditional intent can negate the mensrea by its own terms D slaps heavy object aginst his own palm within striking distance of V and says, If court werent in session Id knowck your head off o A conditional intent can not negate the mensrea where Dhas no right to impose the condition a union organizer does the same thing saying if you dont stop work, Ill knock your head off o A prosecutor cant use a conclusive or rebuttable presumption of law to prove a crimes element- only a permissive presumption MALICE IN CRIMINAL HOMICIDE y Specific intent- have a desire for a certain result o Intent to kill o Intent to do SBI y General intent be aware or should have been aware of act you are doing. o Recklessness o Felony-murder y malicein other crimes o Mayhem (Terrell case) o Arson o Malicious Mischief o Equinicide (Dobbs Case) y Conceptually, Malice = A ________ -endangering state of mind without JEM o ***Fill in the blank with who it endangers person, property, etc. y Generically has 3 different types of malice: o Specific Intent: Intent to destroy murder, intent to kill Intent to injure - SBI o General Intent Recklessness y TERELL: D convicted of Mayhem; struck Wilson (prosecutor) in the eye with a half a brick, which puts his eye out. This rendered him totally blind since he only had one eye when D struck him. D claims mistake in his conviction is didnt specifically intend to blind the guy. o Malice does not require specific intent but includes it. o The mensrea for CL mayhem is malice: A body-endangering state of mind o Split over mensrea in Modern mayhem: some still require common Laws malice: maliciously crippling mans ability to fight Others require specific intent to maim or disfigure Modern statutes say either this or to disfigure someone; added disfigurement to mayhem. o Malice in arson is a dwelling-endangering state of mind o malice in malicious mischief is a property-endangering state of mind o HYPOS Has a grudge and sets fire to DSs house. Crime = arson. If torch your own house and sparks hit DSs house, guilty? Recklessness; so you can be convicted (via general intent b/c of recklessness) Cant be convicted by CL of burning your own house. DS prizes his front lawn and hates ppl walking on it, Campbell waits in bushes and walks on lawn flipping him off. Malicious mischief/trespass Same as above except Campbell walks across leaving footprints C didnt have anger, but still reckless Malicious mischief/trespass y BEALE:D was told by police that some of the goods in her store were possible stolen and she was told not to sell goods. Her husband was aware and sold goods anyway. o Split of authority for knowingly (for R(Possessing)SP type crimes): Majority: Ds subjective intent can be proved circumstancially, including what a RPP would have known Minority:RPP objective knowledge (easier for prosecutor) o Statutory Trend: knowledge for RSP is subjective, but only knowledge that the property was probably stolen y JEWELL: D brought 110 pounds of marijuana into US by driving his car across the border: car had a concealed secret compartment for drugs. Guy knew of compartment, but didnt investigate further. o Knowledge includes willful blindness which is consciously avoiding a highly probable fact o Knowledge can be Belief in a fact that is a fact (H 1) Belief based on ones owns senses (H 2) Belief based on willful blindness (H 3) Belief based on reasonable grounds even if erroneous (H 4) Split of authority re an erroneous belief based on grossly negligent grounds (H 5) y Some = knowledge b/c grossly negligent (using objective test) y Others = no knowledge b/c it is still honest (using a subjective test) y HYPOS: o D sells X a metallic brick for 1000 assuring its gold. It is really not gold (only gold plated) and worth 20$. o D believes its mostly lead because he was told so. False Pretenses b/c you gave title Mens Rea for false pretenses? Intent to steal and knowingly telling her a falsehood. o D believes its mostly lead because he gold-plated the lead himself. same result as above o D is presented with a gold brick award but silences the gag giver and has no belief either way. willful blindness o D believes its gold after scientist test not enough for conviction, subjective and he did something here o What if found it in dumpster behind party store with fake beads and fake jewelry. Uncertain. Courts are split. Some courts like the fact that you really believe it. Others say that is a joke. o Same facts except in dumpster it really was a gold brick but you stupidly think its gold plated and try to sell it. No false pretenses, b/c nothing false; just stupid guy. No false representation here. No actusreas. WILLFULNESS Created by statute so meaning is determined by legislature y Once you get that meaning, put it into one of 2 boxes general or specific intent (divide your mensrea b/c that will determine if a certain defense will work). y BRYAN: purchased guns in Ohio making false statements that he would file the guns serial numbers, but instead sold them on Brooklyn streets for drug dealing. Evidence was adequate to prove D was dealing in firearms and knew his conduct was unlawful. But, there was no evidence that he was aware of the federal law prohibits dealing of firearms. o To prove wanted willfully = pros has heavy burden to show D knew about licensing statute. o In this statute, willfully requires general intent i.e., that D knew his acts were generally unlawful. o Meaning of willfully varies with legislative intent Willfully framed as general intent means D acting with knowledge Ds conduct was generally unlawful Willfully framed as specific intent means Ds acting with knowledge Ds conduct was specifically unlawful o Knowingly means Ds acting with knowledge of the facts constituting an offense o To prove willfully, D knew what was going on, AND doing something against the law generally. y **Make sure you can find all 5 arguments D makes in favor of specific intent interpretation and 5 responses court makes in blowing away arguments. SLOFs (strict liability offenses) y Do not require mensrea y Typical SLOFS: o Statutes and regs that deal with food, drugs, appliances, what we drive, live in and sleep in y Historically, SLOFS are mala prohibita evils that are prohibited. Meaning something is simply deemed against the law b/c leg has said it is o in contrast to malum in se crimes, deemed to evil in itself. y 5 of the main ways SLOFS are different from traditional crimes o Guilty without mensrea (leg can insert mensrea, court might construe a mensrea in what might look like a SLOF) o Guilty by a preponderance of evidence (51%) As opposed to reasonable doubt (Like a civil std) o Guilty by vicarious liability Respondeat superior fits in SLOFS o An agreement to commit a SLOF is NOT a conspiracy if Ds did not know of the SLOF; AND Ds act was otherwise faultless - (Not something antisocial;) o Homicide by SLOF may be LESS than involuntary manslaughter y (battery) In traditional crimes, when you kill someone you are guilty of some form of crim homicide. y ON EXAM: dont get carried away on SLOF; dont forget there could be an overlapping with a traditional crime (ex if speeding 85 miles per hour and run someone over- gross neg, inv man) y Not mutually exclusive, they can overlap with traditional crimes o Traditional crimes = means rea required o SLOFs = no mensrea required y OLSHEFSKI: D was in violation of the vehicle code by 265 pounds and was cited on his was to having the having his vehicle weighed by state police checking the weight on trucks. o Trend: to defend against a SLOF, D can prove a faultless state of mind not to change anything about what pros have to prove, but if D wants to, the D can offer proof that the D b/c of Ds mind, was not the type of person leg intended to nail with its SLOF, i.e., he was not the bad guy they had in mind (pros could argue that the purpose is to save bridges from collapsing) So, now a days D can make a good argument; D says the leg wanted to get ppl that drove overweight trucks; and I am not that kind of guy. Pros could argue leg intent not to go after ppl, but heavy trucks! o D has burden of proof o Burden is what he was doing was socially acceptable. Ask judge to interpret statute and see that D not person leg intended to get with that statute. o Procedural steps under federal habeas corpus: D tried and convicted in state trial court remedies exhausted in state appellate courts habeas filed in federal trial court habeas granted/ denied in federal trial court habeas appealed to federal appellate court Habeas Corpus is a civil lawsuit against the warden by D; warden has to explain to judge that not keeping him in my prison illegally, D claims not convicted legally in TC. Thus, held unconstitutional. US attny says whether or not conviction constitutional. Then ruled on and other side can appeal. (DONT NEED TO KNOW) y STEPNIEWSKI: D was convicted on 12 counts of home improvement trade practice violation. Prior to the case, D was on probation for a felony theft by contractor conviction involving misappropriation of $24k. o 4 due-process restraints/hurdles on a SLOF: Cant shift the burden of proof (from pros to defense) Cant criminalize wholly passive conduct D not passive here (knocking on doors) Cant be vague or overbroad statute Cant fail to give people notice o RULE: there can be a mensrea in SLOF o Legislature writes a mensrea into it; OR courts can read into the statute a mensrea (technically not a SLOF anymore then) o old cases said unconst to put a guy away without mensrea. o Modern side, says if going to put a guy away for 10 yrs conclude that leg intended there be some mensrea. o Federal courts defer to state court construction of state SLOF o SLOFs can impose at least one years imprisonment with NO MENS REA UNLAWFUL CONDUCT y MINK: D and deceased were engaged. When the deceased threatened to break off the engagement with D, D threatened to kill herself with a pistol, whereby they both engaged in a struggle and the gun went off killing the deceased. o 3 way split of Mink-type cases of accidental homicide resulting from attempted suicide: No crime because suicide isnt criminal Murder because theres malice without JEM Endangering state of mind Involuntary manslaughter b/c suicide is a malum in se act, as in Mink o 3 way split of Assisted death/ assisted suicide: No crime because suicide isnt criminal Murder disregarding victims participation Involuntary manslaughter via statute o unlawful and criminal an act thats malum in se is(evil in itself) Even though the act is no longer a crime This is the basis of the misdemeanor-manslaughter rule o Neither suicide nor attempted suicide is a crime in the US o Attempted suicide is a malum in se ACT o Mala in se analysis underpins the misdemeanor-manslaughter rule o If misdemeanor you are doing is malum in se, that malum in se can apply simply to an act that results in criminal homicide. homicide during malum in se makes D responsible for involuntary manslaughter o Act stays evil in itself even if no longer criminal. y HYPOS o If try to kill yourself and accidentally kill someone else? some form of criminal homicide what D did, suicide is not a crime, attempted suicide is a criminal and unlawful act. Suicide is still a malum in se act (evil in itself); so ct just has to conclude that bingo, that is foundation for misd- manslaughter rule.
UNLAWFUL CONDUCT: TRANSFERRED INTENT y HORTON: defendant was hunting on someone elses land without permission and unintentionally kills someone. There was NOT criminal negligence. Court is distinguishing between malum in se and malumprohibitum. o A non-negligent Homicide committing during mala prohibitum is not criminal o 1o, b/c lt ls not u mulu ln se uct. (As long us no gross negllgence or recklessness) o Mala in se triggers misd-mansl rule; here, not mala in se. o malicious mischief requires mensrea of malice, also requires actusreas of substantial damage o Common law malicious trespass/mischief requires substantial damage + malice o HYPOS Same facts as case, but nobody was shot? Civil Trespass, Hunting without permission y SEALY: D ran stop sign, which caused 2 people to be killed o An intentional violation of a life and limb protecting malumprohibitum is deemed gross negligence/ involuntary man o An intentional violation of life and limb protecting malumprohibitum is malum in se act o An unintentional violation of malumprohibitum raises the issue of whether D was grossly negligent o Misd-manslaughter rule another way to get invol manslaughter charge. o HYPO: If driving with reasonable care, going to stop at stop sign but then go through it and hit kid and kill him; what result? Deliberately didnt stop; that is deemed gross negligence. D guilty. o Forget about stop sign and I kill a child. What is the key point that prosecutor will prove to get guilty of involuntary manslaughter If prove grossly negligent. TRANSFERRED INTENT y This is a prosecutors tool when cant get as serious a crime as she wants by using a traditional approach. Also, it is clearly a problem-solving tool for judges. Used with torts. y an intent to commit ANY traditional crime is usually sufficient mensrea for another general intent crime o becausegeneral intent crimes require only Ds awareness of doing the act or Ds gross negligence or recklessness thus, dont need transferred intent y Even in states that use TI, no state allows the mensrea for any crime to satisfy the mensrea for ALL crimes. o B/c some crimes require specific intent And no magic can make a general intent transfer into a specific intent y 3 suggestions re TI Cases: o First analyze each case without using TIi.e. whats the mensrea required for the crime? o Then if P cant prove a valid conviction, then P should try TI o Remember, attempt crimes always require a specific intent to commit some target offense. y HARROD: D threw a hammer at the wall which was above his childs crib because he was mad at his wife and her friend o Here, no evidence D had intent to hurt little kid. So, not guilty of attempted battery. Prosecutor tries to use TI instead. This ct said that cant use TI in all cases; criteria that uses TI are o specific intent can be transferred from an intended victim to an unintended uninjured victim o CL: assault = attempted battery Other form intentional scaring = modern/statutory form o TI can be used: (2 criteria that triggers TI) Majority: TI to kill from an intended victim to one accidently killed specific intent aimed at intended victim will satisfy specific intent at unintended victim Minority: does not T to kill o TI can lead to erroneous conclusions o Some states only allow intent to transfer to a second victim who is injured o Tip: focus on mensrea required for the crime in question y SMITH:D shot at Taylor with intent to kill and wounded him, thinking he was Maloney. Taylor attempted murder Maloney prior attempted murder? o Sometimes there is no need to TI for P to convict the most serious crime o Majority: transfers intent to kill from an intended victim to a bystander accidently killed (1 st degree murder) o Minority: does not transfer intent to kill (2 nd degree murder) o one can use transferred intent to kill an intended victim to an intent to kill unintended victim o shooting at a person thinking he is someone else transfers mensrea for attempted murder (dont need TI) o dont use transferred intent if you dont have to! o Can still get attempted murder here without TI. Guilty before shoots, b/c attempted murder has 3 elements: Did D intend to kill Armed Went to place where expect person to be o HYPO D shoots at M with intent to kill but misses and wounds a bystander M attempted murder specific intent Bystander aggravated battery (deadly weapon) general intent gross negligence and reckless disregard Same as hypo except bystander dies M attempted murder specific intent Bystander murder malice (reckless disregard) majority may find PAD through TI can only get 1 st
degree by using TI y FAULKNER: accidentally set fire to the ship while attempting to drink and steal some rum o An intent to steal is not a ship endangering mensrea o Theres no felony-felony rule for transferring malice o intent to steal does not transfer into intent to destroy a ship requiredmensrea is maliciousness o How many ways can you prove malice: Intent to destroy Intent to Injure Reckless disregard o Tip: Before turning to transferred intent, identify what is the crimes required mensrea (ie Faulkner required a ship endangering mensrea) MOTIVE: y HYPO: X on trial for murder and D knows X didnt commit the murder but a jury wouldnt believe the true story. D testifies to more believable alibi. o Perjury - making a false oath (taking the oath to tell the truth falsely). That is the actusreas, what is the mensrea of that? It is making an oath without a sincere belief (willfully and corruptly) when taking oath and fact that you are caught lying later is just evidence. y Then Erlich tells prosecutor he did it for a good motive, otherwise an innocent man would have been convicted. Is that a good response? o No, it doesnt matter. Motive is not an element, it is relevant though. y A valid conviction does NOT require proof of motive; its relevant but not an element y The rationale for not allowing good motive as a defense is to let the law determine responsibility, not the morality of individual s. y Outside of trial, motive can influence arresting cops, detectives, prosecutors, sentencing-judges, and parole boards CONCURRENCE y THABO: 4 men brought the deceased to a hut, partly intoxicated him, hit him in the back of the head, then rolled his body over a cliff; although the men intended to kill him and make it look like an accident, he didnt die from the actions of the men but rather of exposure o Defense attorney tried to get them to find no concurrence b/c new scene they didnt have mensrea to kill him, just roll over the dead body. Ct doesnt buy this argument. Ct says that was a series of events, still had mensrea to kill him even if happened at diff time. o you can put as many frames around even as long as mensrea was cause of actusreas. Was actusreas caused by mensrea? If ends up dead, then actusreas caused by mensrea. o Concurrence means the mensrea CAUSED the actusreas --- DONT TALK ABOUT CAUSATION ON EXAM INSANITY y 10% of cases go to trial, 1% raise the issue of insanity o 75% of insanity cases are murder cases; most are screened out before trial by cops, DAs, etc. y insanity definition changes with society y FETTERS: D was a resident of a facility for psychological and emotional treatment of children, repeatedly told others about her plan to kill her aunt and to steal her money, D ran away and proceeded with her plan, saying Satan had given her power, she was convicted of 1st degree murder and appealed with insanity defense o Split of authority on which side has the proof burden on insanity Some: puts the burden on the D (Fetters) to prove by a preponderance of evidence Others: Once D raises the issue, P has the burden to prove sanity beyond a reasonable doubt (rebuttable presumption) Still Others (about 5): have abolished insanity, they just require that P prove mensrea beyond a reasonable doubt o Mnaghtens Insanity Elements (excuses crime) D has a mental disease, so that D doesnt know the nature & quality of her act; OR D cant distinguish between right and wrong If dont know nature and qualify, how distinguish right from wrong? o MNaghtens insanity only covers cognitive aspects of the mind (Ds inability to know right from wrong) but it logically should include the Delusion rule. o Needs to show incapable of knowing right from wrong. o Doesnt matter b/c if you dont then clearly you dont know right o from wrong. So, it really boils down to if know right from wrong. o ON EXAM: at time acting, acting insane y NGI (insane people) when found no longer to be a threat to themselves they are released. o ***Most people found NGI spend more time locked up in facility than they would have if went to prison y personality disorders/ psychopaths not found insane because of their psychopathology because they could tell right from wrong (probably) y PMS no ; PPD- yes; PTSD- yes y The Delusion Rule:another rule from Mnaghten case o allows the facts as D believed them (in Ds delusion) to serve as a link to another defense. (not many states use this) but on EXAM if have delusion situation, you can say theoretically, could adopt Mnaghten delusion rule. E.g., rule of provocation (husband thought new bride being deflowered by stranger) Or imperfect self defense or Ds lack of mensrea o delusion rule in not a defense itself, its a link to a valid defense DIMINSHED CAPACITY y SMITH: D raped a babysitter and attempted to kill her but she escaped, and killed a young boy child by strangling him to death, he claimed insanity? o D is entitled to a Dim Cap defense based on evidence besides intoxication; whether ALIs insanity test requires substantial incapacity of either Ds mind (head) or will (heart) o ALI insanity elements/Substantial Capacity Test (CA doesnt use) D has a mental disease or defect, so that D lacks substantial capacity either to y Appreciate conducts criminality (know right from wrong); or y Conform conduct to the law excuses the crime cognitive and volitional aspects (Ds inability to control himself was formerly called the irresistible impulse test) enlarges this defense o Can still get a Dim Cap instruction, when you already brought an insanity defense? Yes, insanity is you had nothing upstairs and Dim Cap is you have a diminished light. o Diminished Capacity Rule (developed by CA courts) Evidence of a mental defect LESS than insanity can negate the higher forms of mensrea, reducing the crime. Recognized in some ALI states, reduces mensrea, but theres a split of authority over how much it will reduce o Diminished Capacity split for criminal homicide Majority: it can only negate specific intent type of malice, thus reducing murder one to murder two Minority: it can negate ALL malice for murder, thus reducing murder all the way down to voluntary or involuntary manslaughter. o overlaps ALIs test, but only REDUCES crime y RAMSEY: d stabbed his wife 32 times claiming he was trying to rid the demons out of her. D plead defense of insanity. o GMI is constitutional; created for Public Policy reasons. o GMI procedure: In order to find guilty but mentally ill (GMI) the jury must find(3-step process) First find GUILTY of the crime Then find was MENTALLY ILL But find was NOT insane o What test does Michigan use for insanity? ALI frame (you can tell b/c substantial capacityappreciate the wrongfulness ALI v. GMI compare = similarities? Conceptually similar insanity is a larger framework where a GMI can fit inside. GMI only has impairment whereas insane has substantially incapacity to appreciate wrongfulness of conduct. o GMI definition on MI is water downed diluted definition of insanity. Changes significant impairment instead of substantial incapacity. o GMIs Continuum of Mental Function jury finds. Enough there mentally: Guilty Partially there mentally: GMI middle ground between the 3 Not enough there mentally: Not guilty by reason of insanity (NGI) o GMI uses diminished capacitys definition to establish guilt instead of a defense (cant have them both together; its either one or the other depending on the jurisdiction) GMI is not a defense, it is a compromise (trap door) between guilty and NGI prosecutors tool o What will GMI do in jury room? Fear that jury will be torn between NGI or guilty and as a compromise = GMI o What kind of sentences can you give for GMI? Any sentence for GMI - same as straight guilty finding. First go to funny farm, then jail o Is it proper to inform the jury of the sentencing consequences between GMI and NGI? Traditional: not to inform the jury of sentencing consequences Trend: juries do care about instruction; should tell them what consequences are Prosecution: likes GMI instruction Defense: likes NGI instruction, because then jury knows the guy will be locked up jurors can make distinctions and wont be confused y FULCHER: D was arrested for being drunk in public and assaulted a fellow cellmate (Mexican b/c he was jumped by Mexicans). o 4 reasons: Ct said dont have to go through NGI door b/c he doesnt have a mental illness. Ex sleepwalkers. Other reason (pg 746) apples and oranges dont have to tell automatism to plead insanity b/c not a disease. This kind of person doesnt have a disease. So, you can raise it separate. o Negates the actusreas at least the way this court is looking at it (person doesnt know what they are doing, no exercise of will) involuntary b/c state of unconsciousness. o has the burden to prove automatism o Split of authority whether automatism affects s actusreus (imputability) or s mensrea (responsibility) Some courts, like this one, recognize it as an independent defense, implying that it negates s imputability for an actusreus Other courts recognize it via a NGI plea, implying it negates s general responsibility for crime o Automatism is a complete defense (no actusreas) o Automatism is an affirmative defense (affirmative defense= must raise & be able to prove) o Insanity as a does not knock out the mensrea o An involuntary act is not an act, which can be imputed to the o older cases disallow automatism caused by intoxication or fighting DRUNKENESS AND INTOXICATION y Voluntary or Involuntary? - Some times you blend the two y COOPER: While intoxicated (on drugs), D drove recklessly, shot a police officer, and kidnapped a victim o alcohol (a type of drug) is treated the same as other intoxicating drugs o Voluntary Intoxication is treated like insanity ONLY when D reaches a recognized state of disease (example: DTs) o Split: Majority - voluntary intoxicationcan negate specific intent ALL states: Delerium Tremens (the DTs) is an addicted bodys reaction to the absence of drugs, and is recognized as a disease by the AMA; defense of insanity o NOTE: Larceny is a specific intent crime (intent to steal necessary) o HYPO D voluntarily consumes 6 quarts of alcohol over a 24 hour period. 8 hours after he stops, he gets delirium tremens (the DTs) and kills X. Charged w/ murder he claims insanity. DTs is a disease so now law looks at proximate cause of the murder and says real cause was the DTs. Drinking was a remote cause. y It depends when the guy stops drinking. If he was still drinking then not a disease. y Disease doesnt matter if voluntary or involuntary. y Burden: depends on the state y ON EXAM: just argue as a defense y EGLEHOFF: D was heavily intoxicated and shot 2 people in the head. He was charged with 2 counts. He claimed he was incapable of committing the murders as he was extremely intoxicated which rendered him physically incapable of committing the murders o Due process is not violated by excluding voluntary intoxication evidence on the issue of mensrea States can do it or not allow. Up to them. Pros doesnt have to prove ok w/ due process, D has to prove that it is NOT ok. o A Majority of states allow voluntary intoxication to negate mensrea o CL: which was followed here, if intoxication doesnt help the D. As was the case here, intoxication is NO defense; does not negate specific intent D argues that old common law approach changed in 1800s b/c a bunch of states went with trend to look at intox to allow specific intent. Not enough here. 10 states did not go with it does not negate specific intent. o Role concepts Insanity and mensrea play in the process of criminal law: doctrines all are tools for constantly shifting criminal law always changing. y BURROWS: 18 year old D killed a man while under the influence claiming the defense of involuntary intoxication; forced to drink 4 beers and whiskey o Involuntary intoxication is a complete defense b/c its treated LIKE insanity. o There are 2 elements to the defense of involuntary intoxication It was involuntary (via duress/fraud through RPP and the D) it caused D to act insane (elements of insanity) It must go to such extent that the mind of the defendant was incapable of understanding the criminal nature of his act. y HYPO o D gets drunk voluntarily and didnt want to harm anyone. D then killed X while in a state of befuddlement so great D didnt know what he was doing. Entitled to jury instruction of if jury finds the above hes not guilty? no, voluntary intoxication o D on trial for murder and admits killing Y but claims he was involuntarily drunk at the time., can he get the instruction that if the jury finds the above hes not guilty? yes, involuntary intoxication y PENMAN HYPO o Facts same as Penman but fooled into taking liquor. Same. Doesnt matter if drugs or liquor. o Facts same but this time D knows tabs are cocaine and takes them and goes insane. Not involuntary intoxication o Involuntary intoxication can also result from fraud o Involuntary intoxication is treated like insanity, theres no responsibility for the crime. o (D didnt actually get off b/c of insanity defense but b/c involuntary intoxication is treated like insanity.) y POWELL: D convicted of drunk in public in violation of state law. Appellant appealed claiming he was afflicted of the diseased of chronic alcoholism and appearance of drunk in public was not of his own volition. He appealed to the US SC claiming punishment would be cruel and unusual in violation of 8th and 14th amendments. o Despite an alcoholics compulsion to drink its not cruel and unusual to make a crime out of an alcoholics drinking in public o The US Supreme Court often focuses on rationales to see whether to create or change a rule (but decides not to do either in this case) (Alcoholism not a disease, a disorder now.??) y INTOXICATION DEFENSES SUMMARY: o voluntary: complete defense: Ds prior use leads to a recognized mental disease (DT) and the disease satisfies the jurisdictions insanity test negatesmensrea: D is so intoxicated that D did not form the crimes mensrea Majority: negates specific intent Minority: doesnt negate specific intent o involuntary: complete defense: intoxication resulted from fraud/ duress and caused the D to act insane according to the jurisdictions insanity test COVERTURE MISTAKE OF LAW MISTAKE OF FACT y CUDE: guy leaves car at shop to be fixed, then steals it at night because he cant pay charges - D broke in at night and took the car with his spare key. o A mistake of civil law can negate a specific intent mensrea (here, intent to steal) o Some cts even extend this rule to negate a general intent mensrea if based on reasonable grounds. y HYPO: What if I am walking along and see a wallet and see license and keep it b/c finders keepers When he is later charged with larceny can he invoke defense of mistake of law? o No, b/c had intent to steal; not a civil law mistake so not a defense. o His mistake was as to civil law. o mensrea for larceny is intent to steal; if he thinks he has a right = no specific intent to steal y why is it ok to be mistake about civil law v. criminal law? o Criminal law reflects social wisdom of what is moral and good/bad. Notion is that if any individual could say didnt know about criminal law, can substitute own notion of what is good = chaos. Nothing immoral about not knowing a civil law. No reason for court to deny you a defense if you dont know civil law. Only a defense if ignorance knocks out mensrea in criminal law. id what kind of mistake: civil/ criminal must have good faith belief about a civil law that keeps him from having mensrea required. y WEISS: D confined a kidnapper as instructed by a NJ detective under the impression they were doing authorized police work o A mistake of law can negate a construed mensrea of specific intent (here, for statutory kidnapping) o Maj: mensrea for kidnapping statute is SI to confine without authority of law o Ds thought they had authority from detectives; but mistake of law must negate mensrea and mistake must be of a civil law. Here, these guys werent confused about criminal law. They were confused about law of arrest; which is a tort law principle. These guys were screwed up in ignorance about the law of arrest. B/c they had that sense, with good faith, that can negate what ct has construed as a specific mensrea. o Dissent/ Min- Even if mistake; they were breaking the law and shouldnt apply here. Crane would have found them guilty. sees as GI o HYPOS: Suppose you have a cop that lawfully busts someone for burg and beats out a confession. kidnapping? No, b/c lawfully arrested o Same as before except officer unlawfully arrests D but she believes doing the right thing. Under Weiss opinion, only cares if you believe your arrest is lawful. If believe then not specific intent needed. Keeps prosecutor from proving the mensrea. Belief must be reasonable. Law of arrest (tort/ civil) was the mistake y MISTAKE OF LAW VIA AUTHORIZED RELIANCE o General RULE: mistake of law is no defense o There are 2 exceptions that negate mensrea First, a mistake about some civil law all negate SI, some negate GI mistake even about the law accused of excuses your crime if Mistake authorized by: y Legislative authority statute good at time you relied upon it y Judicial opinion/legislative authority; OR y Executive authority requires that you are relying upon a public official whose job it is to give legal advice. DA or attorney general The reliance is reasonable y An RPP would have also relied MISTAKE OF FACT y CASH: D engaged in sexual intercourse with a 16yr old runaway girl, believing she was 17yrs old; CL rape bc she was scared he would hurt her o mistake of fact is not a defense to a SLOF (Strict Liability Offense) o good faith mistake of fact about Vs age is not a defense to statutory rape not a mensrea crime so GF doesnt count o 4 reasons ct gives for saying we thing Gengles case was right Legislative intent to omit M.O.F. Statute is treated as a SLOF. Mistake of fact is not constitutionally required. This approach avoids focusing on victims. o Maj: MOF about a minors age is not valid D o Even trend for SLOFs wont allow MOF as a defense to stat rape y CRANE: deceased choked D, who then numchucked deceased. D believed deceased to be dead and burned his body to destroy the evidence. o a mistake of fact can negate a general mensrea if MOF is reasonable o D is entitled to an explicit defense instruction if they have one o MOF operates just like MOL even on general intent mensrea if reasonable. o Jury finds him guilty; he asks for instruction on MOF. His MOF is about whether guy was dead. What kind of mensrea is reckless? y General intent o Has to be reasonable for MOF to knock it out. There was evidence of good faith belief he thought guy was dead. There was also evidence that it was reasonable for him to belief body was deadDr testified that a RPP might have reasonably thought person was dead. y Some jurisdictions let MOF based on reasonable grounds negate even a general mensrea (here, recklessness) y D is entitled to an explicit defense instruction where evidence supports it COMPULSION-DURESS-NECESSITY y Doesnt matter which words you use, same rule for all. A lot of judges use interchangeably. y RATIONALE: ppl should be cut some slack when have to choose choice of evils; as long as chooses the less of the evils. y Necessity etc at Common Law: A ds crimes are excused if Ds action was reasonably necessary to prevent Ds death or SBI but theres no excuse for killing an innocent person y Most states have added elements to that defense either by statute or case law y Sometimes called the choice of evils defense y Compulsion and duress = refer to a threat by a human y Necessity = refers to a threat from a situation/nature o Principles are the same though y HYPOS get a feel for legal analysis that these scenarios trigger and know variables that are used in the analysis. These hypos are at the extreme of defense of duress. y D and passenger Jumped from a sinking ship, D facing his death or others o girl gets jacket on and guy takes knife and tries to cut cords off jacket so he can take it and accidentally cut throat and girl bleeds to death Can guy invoke defense of necessity? What crimes can you charge? Murder? Recklessness? You can argue. Felony murder rule? Robbery; Watch out for merger rule At least G of involmaslr grossly negligent, or committing battery by touching her. Battery resulted in death;misdmanslr rule. Some use fel murder rule; A few ppl say volmanslr; like an imperfect self defense y pull it off her and she drowns. o Causation; he didnt directly cause her death, and if pulling jacket off not as much as cut. Here, most ppl argue vol manslaughter (freak out factor like rule of provocation) y Life jacket in water and both get to it; pulling and she drowns o Is defense stronger? Yes, cant argue had possession b/c both had it at same time. NG of any crime most argue b/c of lack of arguments. o Good excuse of necessity. y Won a race for the life jacket o No crime y Guy in jeep and it sucks, there are some lions coming around and he gets scared and sees 3-mo old baby asleep. Guy takes baby and throws to the lions so he can get away. o Can use necessity defense? o No, b/c killing an innocent person (not innocent in terms of NG in ct, we use it in this framework to mean person is not contributing to the cause of the problem. 3-mo old baby is completely innocent, therefore not privileged to sacrifice innocent person to save yourself. y Passenger in cab, on a one-lane road in Peru. Have to decide if pull taxi off road and die or hit 3 ppl in road. Can you use justification? o D argues: ppl in street werent innocent. Justified b/c he maintained the status quo; was driving reasonably. o Another argument: driver not justified by a balancing of interests shouldnt kill 3 ppl to save only 2. o Duty analysis everyone owes a duty not to hurt someone else as long as that duty doesnt jeopardize oneself. Applying duty analysis; duty not to run over ppl, but exception is dont have to put yourself at peril to fulfill duty. y girl climbing in Tibet; Campbell holding rope and cuts rope. As a defense attny how can you analyze? o Duty to save yourself? Duty to yourself first. Prosecutor could argue girl was an innocent person. Shes not innocent as used in justification she is pulling him off the cliff contributing. o Most would agree this is a justification. She is not innocent person threatening his life. y BURNEY: ex-convict pulled out gun to save his ass. D invokes necessity of defense. But statute prohibits him from having one. o Statutes and case law have modified CL elements of duress o 3 elements of (one) statutes duress defense requires:(what would otherwise be a crime is ok if.) Ds conduct is necessary to prevent Imminent threat/ harm and Ds choice is reasonable o Compare to CL: This is different than common law; b/c CL didnt have to be imminent o Its reasonable to believe D is avoiding a greater evil o Prosecutor argues he was still a convict in possession of gun after necessity. Ct says that is for the jury to decide. Best argument on remand would be that he told police he didnt have gun. o Why is it important that after incident, guy ditches the gun? Who cares? Cut him some slap in a reasonable amount of time. o (cts dont always come down to imminent if its inevitable) o Most states do have a duress statute; that will add more elements than common law; no uniformity in statutes; above is the model statute. o CL duress only requires D action appear reasonably necessary to prevent Ds death or SBI y CAPITULO: hippies wanted to do a sit in at a nuclear power plant; tried to assert defense of justification o Political cases provoke judges to narrowly construe necessity statues o 4 modifications of one necessity statute, D cant have several choices RPP standard for perception of evils RPP standard for the choice of evil Threat must be imminent o conduct which the actor believes to be REASONABLUY necessary to avoid a REASONABLY PERCEIVED IMMINENT harm or evil to himself or to another is justifiable if: the harm or evil sought to be avoided by HAVING JUST ONE CHOICE OF such conduct is greater than that sought to be prevents by the law defining the offense charged o Courts differ in political protest cases because they dont want to condone the legal chaos of protesting o Necessities can be framed as either public or private, depends on whose interests are protected CONSENT, FRAUD, GUILT, CONDUCT y TURVEY: D wanted to sell stolen items and approached a guard about helping to transfer the stolen goods. The ward told his superiors who then let the action go on so they could convict d for stealing case for larceny o consentcan negate an element of some crimes o Whether a possessors handing property to a D = consent to possess? o RULE: consent absolves the person. In larceny against the will = trespassorily = without consent idea. Since goods handed to the guy, not trespassorily taken. o HYPOS going to Dean S to steal coins at night, opens door,goes in, takes coins, leaves Burglary; Trespassing; Larceny D bribes servant to open door at night, goes in, takes coin and leaves Solicitation; Burglary;Bribery;Larceny; Conspiracy same as before, but servant reports plan to owner who tells servant to open door for D Solicitation; Attempt Bribery; No conspiracy b/c no intent, he wants to rat out; No burglary b/c of consent, no breaking b/c had consent of owner; Larceny no consent to take coins just burglary same as before, but servant only unlocks door Burglary just b/c make easier no consent to come in; Larceny same as before but owner tells the servant to open the door and open the safe Burglary? No breaking; Larceny just b/c safe open no consent to steal what is inside same as before but owner tells servant to hand coins to D, so D wont come in Burglary? No;Larceny? No like Turvey case (consent given) o Consent can negate an element of some crimes o If owner consents to entry or taking, theres no burglary or larceny o TIP: scrutinize exactly WHAT was consented to. o ***Can only consent when give it to person, but to stand back and allow is not consenting y CONSENT AND FRAUD: o Consent is a defense concept. Other concept is fraud and that is a prosecutors anti-defense concept. That is b/c certain kinds of fraud can negate or vitiate certain kinds of consent in certain kinds of crimes. We have already seen how force or fraud can vitiate consent. Now, in addition, fraud can vitiate consent. 2 overall jobs of framing: o Fraud in factum asks what did the victim consent to If victim consents to use of his bicycle but D uses victims car, its joyriding--- didnt give permission to get car, only bike. Intent is important at this time need to intend to take car. strongest kind of fraud, vitiating consent in crimes where non-consent is an express element and also where non- consent is an implied element o Fraud in the inducement asks why did the victim consent if victim consents to swap title to property because D offers property that D doesnt have, its false pretenses Weakest type of fraud, vitiating consent only in crimes where non-consent is an implied element (only knock out consent if crime in cat 3) o ***D throws out defense, pros throws out fraud. Fraud in factum is good for pros b/c consent vitiated. If only fraud in inducement, can only knock out consent idea in cat 3 crimes. y crimes where non-consent is an expresselement; (needed element) o forcible rape, extortion, joyriding y crimes where consent is Irrelevant (b/c cannot consent to these crimes) o stat rape, Arson, Murder y non-consent is only an implied element: o Larceny: trespassory, EMBZ, Kidnap, CL Burglary breaking is non-consent in concept, false pretenses y CONSENT o Consent is a defense only in cat 1 and 3 crimes o Fraud vitiates consent only in cat 1 and 3 crimes o ONLY fraud in factum vitiates fraud in cat 1 crimes o EITHER fraud in factum or fraud in inducement vitiates consent on cat 3 crimes y COOK: the dealership consented into D taking one of their cars by fraudulent inducement on part of D. D acquired the car from the dealer with their consent. D traded in his car for a new car for the purpose of selling it to another. Fraud was that it wasnt paid for. o This is a joyriding case; D claims car came with keys so not joyriding. Which frame would you put this in? Fraud inducement. Suckered into it. Why cant pros use fraud in inducement to knock out consent aspect?B/c joyriding is cat 1 crime. Only way DA can knock out is to show fraud in factum o HYPO: C asks DS to borrow car and he says ok and gives keys. C intends to keep car. What crime will DA try to get? Larceny intent to steal formed at time taking possession Embezzlement when did intend to keep car; if after get car = embezzlement; need to distinguish btwn larceny b/c Can you be convicted of joyriding? Need to prove fraud in factum Why does Perez case say there was fraud in factum? y Conditional if break conditional consent = fraud in factum; that is why in that case guy is guilty of joy riding. o When w/out consent is an express element, its vitiated only for fraud in factum o Fraud in the inducement does not vitiate joy ridings express element of w/o consent o When w/out consent is only an implied element, its vitiated by either kind of fraud o Exceeding the condition of conditional consent is fraud in factum y BYGRAVE: D was HIV positive and had unprotected sex with 2 partners who later tested positive. D only informed 1 partner of his HIV positive prior to intercourse and that person consented. o Where is the touching here - battery? The AIDS virus o Consent to SBI is NOT recognized; therefore consent to HIV is no defense. o One cannot legally consent to SBI and AIDS is SBI o A victim cannot give valid consent to aggravated battery y DYKES: D was a French teacher on a visa who was fired and informed she would have to return to Britain as her visa was terminated. D responded with a letter attempting to blackmail the school by either paying her money or forcing her to go public with information on the school. o Another partys guilt NO defense o Fraud of FP is basically depriving a victim of real facts o Crime here is blackmail (subset of extortion); P claims but they are guilty; but pros doesnt care. It doesnt matter. All elements met. o HYPO: Give C ring for cheap watch, and B gets to the DA first what is the crime charged against C? False pretenses got title by misrepresenting value. If you argue he consented, that wont fly. Where is the harm? No harm here. Pros response is that defrauded you of ability to bargain with real facts in front of you that is the harm, not $. Defraud of power to bargain with all the facts Fraud is NOT a crime just an element; usually ppl mean false pretenses where fraud is an element. Or larceny by trick where fraud is an element. If fraud used to steal possessions = larceny; used to steal title = false pretenses y MUNNELL: alcohol level .11 swerved across the road and ran over a drunk victim on the road with a level of .24-alcohol concentration. o Contributory neg is a defense in torts, but not criminal law b/c diff social objectives. Crim law trying to locate responsible party and either punish or rehabilitate; while torts focus on v. o The victims negligence is only relevant to what caused the injury or if the Ds negligence was gross Causation:This is a complex set of rules and since in torts, dont discuss on EXAM. Just spot the issue. All he wants to hear is that there is a causation issue. CONDUCT OF ANOTHER PARTY y HOLLAND: D cut deceaseds finger with iron rod and deceased got lockjaw after refusing amputation o Issue: Whether a victims refusal of treatment supersedes the Ds wounding of the victim? o Sub Issue: Whether a battery victims refusal of life saving care is the proximate cause of death? o D argues V neg was cause of death not injury. o Guy died from wound; D wounded him. This was an intervening cause but not a superseding cause. In Criminal law, concern with what D did, law tends to look at positive action of D as more powerful causation than the negative act of victim. o HYPO: D stabs Vbut doesnt call for help because he doesnt realize how serious the wounds are. Bleeds to death Intervening, but not superseding cause. o V stabbed and tries to get to hospital and cab offers ride and doesnt take it. Intervening cause, not superseding. D still responsible. o D stabs v again and v sits there so D gets electric chair. Same thingintervening cause not superseding one. o C hits DS and he falls on ice and DS dies of hypothermia and he was knocked out. Imputed D? Is he a cause? Even though didnt pack the snow or intend for him to die, still as if he had packed the snow caused D death b/c unconscious. o if DS is punched and he stays there and dies. Can D be imputed? No, b/c DS was ok and conscious and able to help himself. He died of hypothermia b/c left out in cold; C didnt do that, DS did. y Spot causation, dont analyze y Ds prior positive acts are generally deemed the proximate cause over a victims negative acts y Just identify dont analyze proximate cause on EXAM CONDONATION y For a D o General Rule: not a defense o exception condonation/settlement statute for the offense; such statutes typically require: D did criminal act/harm D only asked to pay out of pocket damages (glasses) y For a V: o person is being threatened with exposure of a crime unless pay of threatener 4 possibilities: (ACOE)if not in accordance with a condonation statute, the Vs request for money from the D makes the V potentially guilty of Accessory after the fact: pay and cover crime Compounding a crime receiving consideration under agreement not to prosecute Obstruction of justice Extortion:the making of a threat usually some future event to extract something of value. Making a threat of violence right now is robbery. y **Lawyers cannot even hint in demand letters about criminal prosecution. Even if there is a condonation statute in place. Why? Lawyer will be known smarter and lawyer threat is more intimidating. GR no defense; you are going to be a candidate for AOCE if condontation stat in jurisdiction, then once cond statute has been satisfied bar of pros threatener and bar to person who did criminal act in the first place. y HYPO: D demands payment from person who broke his glasses o No threat y say to the person who broke your glasses you better pay or I will sue you o No ACOE problem b/c only threatening civil ct y C says if you dont pay I will go to the DA and ask her to prosecute you for battery o threat, obstruction of justice b/c if makes the deal wont go to the DA o why is obstruction of justice proper? Societys interest in punishing crime. One person/civilian cannot represent society and take payment and not prosecute. o Attorneys cant even hint of crime in pursuing a clients claim against the D PUBLIC AUTHORITY y BURROWS: D (citizen) claims he was working under public authority after he was drug busted by an undercover cop o The public authority defense requires: A reasonable belief in public authority; AND The authorizing agent possessed such authority o Ct says there are 3 possibilities that can arise: as defenses D can say to jury lack of mensrea mind wasnt into selling drugs just playing along to get evidence Affirmative Defense: public authority in order to satisfy this defense D has to have: Reasonable belief/reliance on authority to do the thing; AND Gov agent had authority to empower D Affirmative Defense: entrapment by estoppel aka authorized reliance When gov tells D that certain conduct is legal and D commits what would otherwise be a crime in reasonable reliance on the officials representation. Here, this case would fit most closely in public authority. But of course, where D loses is that trial judge was right, jury had to find he was authorized and that it was reasonable for him to believe, which it wasnt. Public Authority: Use of Deadly Force: y Common Law: only 2 privileges to use deadly force: o Public authority used by officers of king/queen to enforce law o Crime prevention used by all citizens to uphold the law. o Both called justifications, meaning that there was no crime at all. y RATIONALE: all felony was hanging offense; accelerating justice since he was going to die anyway. y Self Defense came later onrecognition by the law that self-defense is a defense only recognized where user not completely without fault. To deal w/ situations where user partially at fault. SD (self defense) can also be used by someone who was sort of at fault. When SD was invoked in ct and was not a justification; D found guilty but then k/q would pardon offender so it became excused. y Became known as excuse y Later, the privilege to use force to defend property evolved from crime prevention and priv to use force to protect another person evolved from self-defense. y Similarities more important than differences y MANTINELLI: D, an officer on duty, engaged in a second car chase with deceased. Officer shot at victims car as it was trying to get away killed the driver. 2 conflicting stories (D and prosecution) about what really happened. o Public authority allows police to use deadly force where theres a reasonable belief of a significant threat of death or SBI to police or others (Reasonably prudent Cop) o Crime prevention allows citizens to use deadly force where theres actually an immediate threat of death or SBI in the immediate vicinitythusOrdinary citizen can only shoot if here and now threat o Public authority allows police a broader privilege to use deadly force than private citizens. o Despite police Ds being entitled to citizens self defense and defense of others instructions, theyre also entitled to an instruction about cops broader public authority for using a deadly force. ***if a verdict to the degree of the crime is contrary to law or evidence and the defendant is guilty of a lesser crime, the court can modify the judgment without having a new trial***
Domestic Authority (DA), Crime-Prevention, Self-Defense Cleary Case Facts: Boy assaulted another classmate and assaulter was punished by the schoolmaster Issue: Whether DA gives privileges to use force? Whether teachers have DA to punish school children for fighting on the way to school? School like parent; in loco parentis; parents give authority to schools. Source with parents and delegated to school. HYPOS #1 one of kids punished by father Priv by DA #2 is headmaster priv to punish kid for what do at home? No, swift pun to be effective; only leaving to from school #3 parent priv to exercise 2nd beating to kid? Has to be quickly generally; so that is priv as long as acting reasonably #4 parent sends kid w/ note saying dont want to use corporal force? American law: public school teacher has public authority to administer discipline; not DA. Source of Campbells authority = K authority POINTS DA protects parents for reasonable use of force PA protects teachers in US DA is broader for parents than is PA for teachers Trend restricts parents and teachers privileges to use force Split re test for using domestic and public authority force on kids Traditional: whether D acted out of welfare v. malice (are hitting kid for) malice test child-endangering state of mind for malice Malice = kid endangering state of mind really want to hurt the kid Trend: What is reasonable? RPP standard based on circumstances Barr Case Facts: d fatally shot deceased after deceased and other friends attempted to steal wooden chairs from an antique store RPPs need to defend with deadly force Issue: Whether crime prevention lets citizens use deadly force to stop a felony? Whether crime preventions deadly force has 3 elements? D asked for justifiable homicide instruction. Ct said no for 2 reasons First, not entitled to crime prevention instruction b/c no felony being committed; D argues he reasonably thought felony going on; but ct says no b/c reasonableness does not refer to belief that a felony has occurred. What is required to trigger priv to use deadly force is that a felony actually did occur. Not really a burglary; not fenced off Second, no fear of SBI; see trend below When can a citizen use deadly force? Felony committed Reasonably necessary to stop felony/apprehend felon Trend adds third element reasonable fear of death or SBI D here lost on 2 of 3 elements; so convicted of vol manslaughter HYPOS - C goes to DSs house to steal laptop, his only reasonably way to stop C is to shoot him. Trad Rule yes for all hypos. Real felony and a reasonable way to stop him Trend could argue in hypo 1 that scared. 1: If at door and C wants to get in and C overpowers and pushes door and shoots 2: if C in house and DS says stop and C flips him off and he cant stop so shoots C Trend: not justified under trend b/c no fear of SBI/death, but could argue given history btwn them. 3: C had computer in arm and about to leave and he shoots him if about to exit, not justified under trend 4: if got computer but in street and DS shoots On street, no immediate threat Diagram SEE SLIDE re stroke Legal analysis is 2 stroke analysis POINTS Trad: crime prevention justifies a citizens use of deadly force where: A felony was actually committed and Deadly force is reasonably necessary to apprehend the felon Trend: adds a 3rd element The felony creates a reasonable fear of immediate SBI Ceballos Case Facts: D mounted a trap gun in his garage to prevent thiefs from entering to steal his tools and deceased was struck in the face while trying to enter the garage to steal Issue: Whether crime prevention allows deadly force to protect a dwelling? Yes, when ppl are there. Whether deadly force is privileged to protect a dwelling when no occupants are in danger (empty dwelling)? No. D convicted of assault w/ deadly weapon. Attempted battery; but this kid was battered, so why did jury find him guilty of attempted? Why did jury come back w/ ADW instead of battery w/ DW? Jury might be thinking that guy kind of innocent b/c kids were stealing If shot was higher and killed kid, what crime convicted of? 1st degree murder PAD recklessness for 2nd degree murder grossneg for involuntary manslaughter Ct says if he had been there could have used judgment, but here couldnt do it. Pros arguments: As a matter of law outlaw trap guns ct doesnt buy this; they agree they are dangerous though POINT Trend: requires 3rd element (from above); crime prevention priv restricts deadly force to stop only felonies that create reasonable apprehension of immediate SBI. Self Defense Realina Case Facts: D was arrested after he chased Hardisty into the police station with a knife after Hardisty threatened to kill him Issue: Whether self-defense allows DF when being threatened with SBI? Yes. Whether deadly force can be used to repel reasonably perceived great bodily harm? R was convicted of terroristic threats but he was defending himself acc to R. Self Defense Rules Reasonable force is justified in resisting reasonably perceived unlawful force Threatening with deadly force is NOT using deadly force (a key concept) Deadly force is justified to resist forcible kidnapping B/c this presents fear of SBI Therefore, non deadly force is justified to resist forcible kidnapping Key to understand what R was doing that was justified; he would have been justified to even cut off hand b/c kidnapping. HYPOS DS comes up to C and says you suck and C slaps DS. Justified b/c hurled words? 1: If hurled words, not justified (not informational) only use force against force and words are NOT force. 2: where DS punches C first after C battering him to stop him POINTS 4 self defense rules no self defense priv to use force against words Gen RULE: even word hurlers have a self defense privilege EXCEPTION: but where word hurler intends to start a fight, the hurler is stripped of self defense against the force those words would reasonably provoke. COMPUTER CRIME STATUTES y Accessing and printing data without permission y Damaging, destroying, deleting, and contaminating data y Stealing computer services ABORTION: y common law misdemeanor: cause the miscarriage of a woman after the fetus had quickened unless necessary or reasonably believed to be necessary to save her life y -in a few states manslaughter has been statuted to include certain types of feticide y -therapeutic abortion: miscarriage induced for medical reasons generally y -state cannot interfere with 1st trimester abortion, but can regulate it in other trimesters y -state can regulate an abortion to protect a viable fetus y -late term and partial birth abortions are prohibited y Not a crime in CA MAYHEM: (If you have mayhem, a fortiori, you have battery) y maliciously maiming y or maliciously and intentionally disfiguring y another ABDUCTION: (not a common law crime) y unlawful taking y of a child under a specified age y from a parent or guardian y for the purposes of depriving that parent or guardian of their parental right FORGERY: y Making or materially altering y a document of legal significance y that purports to be anothers y with intent to defraud UTTERING: y tendering a forged writing y with intent to defraud KIDNAPPING: y asportation or confinement y of a person y by force, threat, or deception y with unlawful intent o although strictly speaking this is not the common law form, nearly all states include it as the equivalent of the BARRK crimes triggering 1 st degree murder RAPE: y unlawful carnal knowledge (any amount of penetration) y of a woman y without her consent y (statutory rape is for girls under a certain age even if she consents)
Crim Law Class Notes for Monday November 23, 2009 NOTE: Wednesday 12/2 at 7pm crim review Self-Defense; Defense of Others
Goetz Case Facts: D shot four teenagers on a subway after they asked him for $5. D said he would have kept shooting if he could have Issue: Whether one is privilege to use deadly force in self-defense when (a) an RPP perceives a deadly threat and (b) and RPP would defend with deadly force? Whether deadly force is privileged when based on a RPP perception of a deadly threat and an RPP response to deadly force was necessary? Whether the RPP can factor in the experience, history background and knowledge of the D? D is saying you should use subjective test; but ct says in NY statute read reasonably even though ct uses majority that assumes and requires there also be the D himself believe. Here, NY uses RPP and subjective (MAJ), now cts give D a break and cuts them slack, allow jury to have RPP to have same knowledge D had as well as experiences. SEE SLIDE for policy analysis 1 of 3 positions on self defense: Was there a threat of deadly force Did D have to respond with Deadly force It should depend on sub standard what he believed HYPOS DS gives S a fake knife and C shoots her to keep from stabbing him; is he justified in using deadly force? Yes, b/c a RPP would be scared. If S didnt brandish a weapon and C shoots her, is he justified? What would a RPP believe, in this case no way seeing death. Not justified. DS and C have made deadly threats and suddenly meet each other in parking lot and C sees him reach for his gun and so C shoots him. Justified? Yes. A RPP would be justified If DS and C meet in garage and he looks away at someone and C shoots him. Justified? No imminent threat. POINTS Maj: the deadly force priv under SD requires (a) RPPs perception of a deadly threat and (b) RPPs need to defend with deadly force The RPP test allows factoring in s physical characteristics and experiences Min: The Ds good faith subjective perception and response determines scope of self-dense. Cooper Case Facts: D entered into a quarrel with his brother who was continuously hitting him in the head with a radio. D then shot his brother in the head. Issue: Whether most states require retreat before using deadly force in self- defense? Whether most retreat jurisdictions require retreat before using deadly force (a) if retreat is obviously available and (b) one is not in ones castle? Whether most retreat jurisdictions require retreat when in ones castle and attacked by a co-occupant? RULE: this ct took middle ground, but not what maj uses. Most states say dont have to retreat, you can stand your ground. C/L says human life is more important and if say way, retreat. A Min have used C/L rule. Maj use American rule no duty to retreat. Castle doctrine: no matter what jurisdiction, you dont have to retreat. Retreat jurisdictions are more American in this way b/c you cant go anywhere else. No matter what, you can use deadly force in your castle. Co-occupants: if using deadly force, ct says there is a split of authority. Once in retreat jurisdiction, there is another split of authority: most cts say no duty to retreat. Min say if dealing with co-occupant dealing with someone who you have history with so try other ways to diffuse situation, so if safe retreat available try it. SEE SLIDE DIAGRAM Maj: no need to retreat Min: retreat Retreat (if safe) unless castle HYPOS In retreat jurisdiction: C is in dispute with DS and he says next time I will shoot you. First time meet, C can get away and DS has baseball bat so C can kill or be killed If confronted in Cs home no need to retreat If in Ds office? No need to retreat; these jurisdictions say office = home in terms of castle doctrine. In Ds club? Club = castle as well for purposes of retreat. At far end of Ds own farm? Castle for purposes of retreat. If on Erlichs farm? Is that his castle for this doctrine, yes. Sports car on Public Street? Not covered as castle for retreat rule. Castle is so big, they might as well say maj. POINTS Most states do not require retreat before using deadly force in self defense Most retreat jurisdictions require retreat before using deadly force if (a) retreat is obviously available and (b) one is not in ones castle Majority= no retreat jurisdictions: one need NOT retreat before using deadly force in self-defense Minority= retreat jurisdiction: one MUST retreat before using deadly force in self defense if (1) an obvious retreat is available and (2) one is not in ones castle Within Retreat jurisdictions: (split of authority) Majority says need NOT retreat before a co-occupant, but Minority says MUST retreat before a co-occupant Broadhurst Facts: D was solicited by his wife to kill her real husband. While pretending to have car trouble, D killed deceased Issue: Whether an assailant must (1) withdraw and (2) communicate before reacquiring the right/privilege to use deadly force in self-defense? Yes. RULE: have to give communication and it has to be received. In this case, Dr. was out of it. He was coming forward yet not conscious. Here, wife is being tried b/c conspirator and solicited the D to kill. HYPOS C and another guy getting into fist fight, and then other guy pulls out a knife and C pulls out chair and kills him. Justified? C is not that innocent. Here starts with 2 guys, both not innocent and before you can reacquire priv of self-defense, that is when C has to retreat. If mutual fistfight is different. 4 frames in which you can put self defense D is innocently on the scene MAJ: can use DF without retreat MIN: must retreat before using DF unless in castle D is a mutual non deadly aggressor All jurisdictions: must retreat before using DF Ex: fistfight Failure = imperfect self defense priv D is the aggressor ALL must withdraw and communicate Failure = no defense D is engaged in a criminal enterprise: ALL: no self defense privilege Defense of others Saunders Facts: D, Robert Saunders, shot deceased while trying to protect his brother who was pinned down by deceased and deceaseds friends. While holding ds brother down, deceased exclaimed he was going to kill Ds brother. D then shot to protect his brother Issue: Whether defense of others requires that step into the shoes of the other (one you are defending)? Whether is entitled to a defense of others instruction when a similar instruction has already been given? RULE: stand in shoes; entitled to defense of other instruction as well as provocation instruction A person has the privilege to use force defense of others to the extent that the other could have used the privilege to use that force POINT Trad rule: the priv to use force to defend others requires that D step into the shoes of the other IS A HOTEL A DWELLING?!?!?!?!!?- YES FOR BURGLARY Defense of Others Traditional Rule: stand in shoes of other to know how much you can defend Trend: RPP standard to determine privilege what does RPP perceive and how will RPP react? ALEXANDER: D came to the aid of a fellow cellmate while witnessing two guards using force on the cellmate. Issue: Whether the defense of others is determined by the RPP test? Yes if in trend jurisdiction. Here, at T/C D got self defense instruction but defense of others was limited to trad rule. Ct connects Genovese case to new trend rule to encourage ppl to help out. Defense wins here b/c ct emphasizes policy. Trend now looks to RPP standard. HYPOS D shoots and kills X to prevent X from shooting Y. D thinks Y is faultless and that shooting X is the only way D can successfully intervene. If not shot, X would actually have murdered Y? Under trad approach, yes priv under old stand in shoes. X was apparently going to murder Y but nobody knew Xs gun was jammed Under trad view priv to kill b/c no one knew jammed. Trend approach: priv b/c RPP would think same thing, if pass trad test, you will pass trend If E and S stage a gorilla theatre and S has a fake gun and C comes and sees S and kills S to protect E? Under trad approach: not priv b/c no threat and E knows that Trend: Yes priv b/c RPP would think threat Trend is a much larger privilege POINTS Trend: RPP test to determine the privilege to defend others Theres a general trend to let RPP test determine all privileges to use force
Defense of Habitation (where people live) (doesnt mean personal property) MITCHESON: guy sold a car to another but said tires werent included; D shot deceased when deceased attempted to steal the wheels from Ds fathers car from Ds sisters home. defense of habitation allows deadly force to protect whatever place defender is peaceably occupying Ct says in this case, you get instruction. Entitled to use deadly force when occupied, but not habitation when unoccupied. (Not where ppl dont usually sleep like tool shed) RULES: Dont conflate the priv to defend an unoccupied habitation with the prvi to defend an occupied one Dont mix up privilege to defend real property (habitation) with privilege to defend what is inside your property (personal property). Must be occupied Trend: does not allow deadly force to defend an unoccupied habitation Theres a split of authority re using deadly force to defend an unoccupied habitation Trad: privileged to prevent a felonious attack on an occupant Trend: privileged if reasonably necessary to prevent occupants death of SBI (which is a felonious attack) Sounds like the same thing outcome is the same. POINTS Trend: the defense of habitation includes whatever place the defender is peaceably inhabiting.
DEFENSE OF PERSONAL PROPERTY DONAHUE: D owed victim money for clothes he bought from victim. When victim went to Ds home to collect the money, D gave victim the money, then demanded it back. When victim refused, D choked him until he gave him back the money defense of property allows force to immediately recapture personal property You can use reasonable non-deadly force to immediately recapture. Jury has to determine: whether choking is deadly force. D claims not trying to kill him just trying to get his stuff back. Jury to determine if amount of force was deadly v. non-deadly if reasonable. How much time allowed before recapture is NOT immediate? Momentarily interrupted possession A month is too long Immediately RULE: Non-deadly force is privileged for immediate recapture of personal property HYPOS C walking in Horton and feels someone brush up against him and steals his wallet. C shoots X in the leg Not permitted b/c deadly force is not reasonable for personal property What if C grabs him by arm and slams into wall to get wallet? Depends, size of person probably privileged and non-deadly C grabs X by shoulders to get wallet? Force used was privileged, reasonable C catches him and X gives his wallet and C grabs arm after Privileged using citizens arrest privileges arrest crime prevention defense POINTS Reasonable non deadly force is priv for immediate recapture of personal property CEBALLOS: trap gun case that shoots boy in face privilegescan overlap RULE: Cant use deadly force to defend personal property.You can only use reasonable force So, if someone is getting into your garage if someone is in there stealing one of your cars, priv to show gun? Yes, b/c not actual use of deadly force. Can C shoot at burglars kneecap? No, b/c that is deadly force. But if you could argue fear he would come after you, then can try self-defense, defense of others, etc. All privileges should come up. But alone, not priv to protect cars with deadly force. POINT Various privileges to use force can overlap Personal property may not be defended by deadly force. ENTRAPMENT BARAZZA: Undercover cop kept bugging D, contrary to his demands to stop, for some heroin. 2 different stories here acc to D, he said that he is being harassed. Important when determining entrapment. entrapment defense: subjective test to determine Ds predisposition entrapment defense: objective test to determine excess government involvement Here, ct takes min approach, which looks at amount of government involvement. Only 7 states in this country use objective test. RULES: Min/CA: Entrapment uses an objective test to determine excess government involvement Show gov involvement so strong that a RPR would have been enticed into committing a crime When is there too much gov involvement? Push me factor; ANDIf gov gives additional motive to D Pull me factor; If gov makes crime unusually attractive; You wont get caught 42 states/Maj: entrapment uses a subjective test to determine ds predisposition Prosecution only has to prove D was predisposed to commit the crime HYPOS C at favorite bar is undercover cop and hears casual remark about planned burglary. A D makes remark to C that he is going to rob this nice place, and C says he will be look out. When comes to car, C flashes badge. Validly claim entrapment? Maj? No, b/c he is predisposed Min? Not entrapment here. If C makes remark to D Maj? Need to know more about D, whether pros can bring in conviction record. Could be entrapment. Min? Clear case of entrapment here. Push me/pull me factors seen C is homicide detective persuades someone to commit murder? No cases on this, but commentators say there should be no entrapment defense; and cop should be prosecuted. POINTS Maj: the entrapment defense uses a subjective test to determine Ds predisposition Min: the entrapment defense uses an objective test to determine excess gov involvement Neither approach (SEE SLIDE) for rest ATFQ could a rational trier of fact validly conclude guilt beyond a reasonable doubt the jury believes all the facts written in the fact pattern INFER BUT DO NOT INVENT; ALL RELEVANT CRIMES AND DEFENSES INCLUDING THOSE NOT COMPLETELY SUPPORTED BY THE EVIDENCE ORGANIZATION- read facts, before writing, scratch out time management OL, 1 word issue and 1 or 2 digit number, how much time to spend on that issue, then dont miss an issue and dont waste time (IRAC), organize the crimes in a good manner, PROS WILL ARGUE/DEFENSE WILL ARGUE, then theres slam dunks
chronological approach to getting all the eggs- arrange in order they appear in the essay; discuss chronologically to see connections between facts; pair each defense to the crime it relates!; automatism, insanity, immaturity? tell him the defense 1 st then tell him to look at the bottom to see the defense bc it will get rid of all; start with CL 1 st (most severe)if not guilty of CL still list elements of stat burg but stil mention the elements! CLARIFICATION ACCURACY PERSUASION if cant remember split of authority; mention theres a split and one side argues this way
do not use the ? to say everything he wants to hear
Multiple Choice Amy lives in Ca, and while out one night brings home a random sailor. Amy becomes pregnant and doesnt want the baby. She goes to the clinic and has an abortion. What can Amy be convicted of? y Nothing**** not unlawful in CA and homicide isnt a crime Jack attempts the armed robbery of Jill. Jill Screams and Jack panics and runs away. In his rush to escape, Jack accidentally knocks down an elderly gentleman, causing a blow to his head that results in his death. Which form of malice can be used to charge Jack with murder? y Felony Murder**** committed felony and guy died as a result Chris goes into a store to purchase a new iPod. The store has three kinds in varying prices. Chris notices that the boxes are not shrink wrapped, so he puts the more expensive iPod in a cheaper iPod box, and purchases it. Chris can validly be convicted of what crime? y Larceny title does not pass because did not know what they were passing title of****
Dennis walks into pattys pub, the bar he works at, and takes a large swig of whisky. He continues to drink huge swigs of whisky until he has finished half of the bottle and has become fairly drunk. A man walks into the bar and asks to use the bathroom. Dennis tells the man the bathroom is only for customers. He says he will buy a drink when he gets out, but when hes finished the man refuses. Dennis hopes the bar and threatens the man with the bottle, unless the man buys a drink. The man throws some money at Dennis and runs off. What can Dennis be validly convicted of? y Robbery**** I am planning on robbing a bank; at what point can I validly be convicted of attempted robbery? (Choose all that apply) y Drove to the bank, and walked up to the door**** y Held up the teller and got all the money that I could hold**** Bob is driving down the freeway and has a heart attack, this is his first one. He blacks out drives through the Hillcrest Farmers Market, killing and maiming people on the way. What can Bob be validly convicted of? y Nothing**** BOOK REVIEW 3/4/2011 11:53:00 PM Amanda Luman Criminal Law- Professor Campbell M/W 1:15 I read both Trial & Error: Volume I and Trial and Error: Volume II. In all honesty, I went into reading the books thinking I was just going to read what I needed to read and write what I needed to write, but after actually reading the books I am amazed by what I learned. Beginning as a 1L in January, my life has been a whirlwind of confusion along with self-doubt, insecurity and days where Im ready to just throw in the towel. I started to forget why I was here, and then I read your books. I realized I dont necessarily want to go to law school, I want to be a lawyer! If anybody could skip through the law school process, I dont think there would be any question that most everybody would do so. Reading your books helped me bring together why Im in law school, I want to be the one that somebody calls in their time of need. I want to be able to actually help better someones life and half-assing it to merely survive law school is not the way to do so. Life didnt get easier after reading the books, but my priorities seemed to have fallen into place. The books made me want to study harder and push myself to the limits so that when the day comes where Im handed a case and somebody needs my help, I can do so with full force. I fell in love with the relationship you and Cut developed in Trial and Error: Volume I. Cuts story made me feel sad at times but the two of you seemed to be the ying to each others yang. I felt like I was along for the ride on his journey to freedom, I created my own character of what he looks like and I could visualize the interactions between the two of you. His reassurance and belief in you even when you didnt believe you had done your best made me feel warm and fuzzy inside. In the media and on television, clients are typically portrayed as lying, scum of the earth type people who are always guilty of something with the lawyers being there just to rid the guilty of their crimes. Not to say that I believed that to be true, but it gives you a bad taste in your mouth for those who are convicted of something when society places guilt on the innocent. Cut showed that sometimes its your job to free those who are actually innocent. This story also reminded me that eventually I wont be reading cases, my lawyering skills will have a possibly life-changing effect for better or worse on my future Cut, who has placed his trust in me and believes that I can properly defend him. Who knew cops would lie about such things that would have a major effect on someones life?! (please note the sarcasm) My favorite part of the book was what you said at the bottom of page seventy-two about your relationship with Cut. It made me see that for the majority of the time you will be defending a clients actions, but that shouldnt be everything you get out of the relationship between you and your client. Your ultimate aim may be to help the person but let them help you as well, let them show you how to stand strong in the case of adversity when you believe yourself to be helpless. I love how you allowed yourself to bond with this man and admit that you got so much out of a relationship that many lawyers would probably not. I liked how the inspirational effects had a true effect on your lawyering skills and witnessing how this defendant stood strong lingered in your life. You and Cut superseded the client-lawyer relationship and transcended into buddies who wanted the best for each other while not seeing the labels society placed on you; you were people helping people at that point and I believe thats what being a lawyer is all about. A few other things that struck a chord in me is that justice doesnt always prevail, you can only do your best as a lawyer and the court wont always rule in your favor but thats just a part of being in the position of ritualized battle. The quote from page ninety-three, Sometimes freedom lawyering lends little satisfaction beyond knowing you stood up to power, tried to ply a little justice, simply told the truth, is a motto I hope to live by when I get into the field of lawyering. The difference between Trial & Error: Volume I and Trial & Error: Volume II is that I read the first volume fairly early in the semester and I read the second volume later in the semester and I couldnt help but think to myself, I actually know the elements to the crimes hes talking about! It was a minor epiphany that Im actually learning more than I thought. On the flip side of you freeing an innocent man in Volume I, here you were in the opposite position of convicting an innocent man. This made me re-think my wanting to be a criminal attorney and I found myself left with so many questions to think about. Could I live with myself had I convicted an innocent man? Would it haunt me? Where do you draw the line of doing whats popular and doing whats right? For you, it was easy. As a lawyer you will always want to win if you take the nanny-nanny-boo-boo approach to lawyering, but that might not always be the right road. You had your conviction in your hand, you won, game over, but you made the choice to free a man who you later found out to be innocent even though the three people above you said not to do so. You stood your ground and acted on what was right and risked your job, or even possibly your reputation to do so. I hope I can do the same thing in the future. I like to win and typically losing is not even an option, I would rather fight to the death before I can admit that Im wrong. Although I think that is definitely a great mind frame to be in when wanting to be an attorney, will I be able to right the wrongs for the sake of losing? I would love to say absolutely yes but Ive never been in the situation, I can only hope that I do just as you did and right the wrongs. What would happen if nobody freed those who were innocent, wed have the wrong people in jail for much longer than we do now and systems put into place, such as the California Innocence Project, would not exist. The innocent would rot along with the guilty. On a less depressing note, as nutty as a sweater full of squirrels literally made me laugh out loud! Let me end this by saying that I love how you refer to your inner self as fighter and let him come out and suppress him at the appropriate times. Your word choice was enchanting; it made the books come off of the paper and dance. I appreciated the details and specific way you said things because they really made a difference in reading the books and turned the stories into more of an experience. I learned a good bit about logically thinking; one example being how you used the cold weather outside to determine that the coat was Camrocks because he would have needed the coat to go to the house. I thought to myself, well duh that makes sense, but I hope I can think on my feet like that and use whats around me as tools to prove my point. Its still up in the air as to whether I definitely want to go down the road of criminal law as a specialty, but it was nice to see the opposing sides of winning versus losing and convicting the guilty versus freeing the innocent. Thanks for the insight from these books. Im going to send the books to my grandfather, he always tries to give me big books about law situations but I dont really have time to read them right now. I know hell appreciate reading books by someone who is actually teaching me material as well. Looking forward to Volume III.