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Fair Warning
Retroactive Criminalization &Vagueness
Fair Warning:
1.Prohibition against
Retroactive Criminalization
2.A prohibition against
Vagueness
Violations of Due Process:Retroactive Criminalization
Vagueness:
•
Unfair Notice, OR
•
Inadequate Guidelines
 
Fair Warning
Statutory Construction Problems
Felony Murder Issues:Whether there is Murder in 2
nd
Degree
 –
is Fel. Murder 2 available under statute?
Whether crimes expressed are the only crimes available for felony murder?Whether a felony non-expressed is qualifying predicate felony for M2?
•
Majority
 –
only inherently dangerous felonies
Option 1:look at felony in the abstract
Option 2:look at felony in the circumstances in which crime was
committed
•
Minority
 –
all common law felonies not expressed quality
•
i.e. => where we would put gun possession? Inherently dangerous? 
If no M2 possible, or if felony doesn’t qualify, likely Unlawful Act Manslaughter…
 
Actus Reus
Elements:1.Voluntary Conduct
1.Act2.Omission to Act3.Vol/Invol=> last act is whatis considered for vol.
2.Production of a Stated Result3.Surrounding Circumstances
Voluntary Conduct
Act =Any bodily movement
Exceptions: bodilymovements that donot qualify for liabilityConduct which is notthe product of ownvolition
Reflexive orConvulsive Act (i.e.seizure)Conduct performedwhile unconscious orasleepOmission to ActElements
:Duty to Act, ANDD has capacity, means,and ability to act, ANDOmission to act is thecause of a particularresult
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