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I. Theories of Punishment • A. Utilitarianism • The criminal law should be used to help maximize social welfare (happiness) • It means we only punish to the extent that society is made happier • How can social welfare be maximized? • 1. General deterrence • Others seeing people do a crime and get punished will refrain from doing the same • 2. Specific deterrence • If you punish a person, maybe they won't commit a crime in the future • It is a loss of their liberty that they don't want to lose again • 3. Incapacitation • If someone is in jail and unable to commit a crime, society is happier • B. Retribitavism • We punish wrong-doing because it is morally right and an obligation • Everyone is treated as a human being (as an end, rather than a means) • If someone acts in a way less than a human being should act, then we show them respect by punishing them • Everyone makes choices and they get what they deserve • KEY: Proportionality • The punishment should fit the crime • The evil that the criminal inflicts on society is repaid • C. Constitutional Restraints on Punishment • Due Process • If reasonable people disagree about the application of a crime, then it is void • Fail to do one of two things: • 1. Fail to notice • 2. Arbitrary or • Ex Post Facto • The Constitution prohibits laws that impose criminal liability after the fact • 1. Conduct that is lawful when committed • 2. If it makes a crime great than when it was committed (retroactive increase of punishment) • 3. Inflicts greater punishment than when it was committed • 4. If a law reduces the amount of evidence required to convict and applies the law retroactively

either: • 1. Creation of a danger (i. • A. homicide) • 3. Relationships (i. imported from England into the U.. Elements of Crime • Every crime shares: actus rea. Assumption of Care • If you voluntarily accept to take care of someone. doctor) • 3. traffic laws) • 2. Actus Reas • The physical or external element of a crime • Types: • 1.. or • 2. Contracts.e. Attendant Circumstances (i. Prohibited result (i. Certifications (i.e. Statute • 2. lifeguard. Sources of Criminal Law • Common Law • Crimes decided by judges.e. you are liable for them • 5. husband/wife) • 4. statutory rape crimes require age) • Facts or circumstances that must be present to commit a crime • Conduct and results have to be committed by a voluntary act • Omissions do not generally form the actus reas unless an omission violates a legal duty • Look for whether there is a: • 1... II. • Statutory Law • Crimes are defined by state legislature • Started in the 19th Century • Model Penal Code • Influential across the country • Never fully adopted III. nanny. killing a person. parent/child. Mens Rea .e. The punishment does not measurable advance deterrence or retribution.. hit and run) • B.e. and causation. Prohibited conduct (i. mens rea.S.e. The punishment is grossly disproportionate to the crime..• • • You can't change the rules in the middle of a game to favor a particular prospect • 8th Amendment • The Constitution prohibits cruel and unusual punishment.

• Foreseeability is required .goal. that is recklessly • If you don't know of the risk and should know of the risk..• The internal or mental element of a crime • Model Penal Code • Purposefully • Conscious object . and • "But for" your conduct. driving fast to get somewhere. not a difference in degree • Common Law • Negligence and recklessly mean the same thing • Intentionally means knowingly and purposefully doing something • Maliciously • Typically now means recklessly at the very least • Willfully • Either intentionally or any culpable state of mind (from negligence all the way up) • The actus rea and mens rea have to occur at the same time • C. wanting to kill someone) • Knowingly • Awareness that you are engaging in a crime or a result that would occur • Recklessly • Gross deviation from the norm and consciously disregarding a substantial and unjustifiable risk • Negligently • Gross deviation from the norm and failing to be aware of a substantial and unjustifiable risk • Negligence vs. causation is relevant because the conduct had to have caused the prohibited result • Two components • 1. that is negligently • A difference in kind. what is trying to be done (i. Causation • For result crimes. Proximate Cause.e. would the prohibited result have occurred? • 2. Actual Cause. Recklessness • Awareness of the risk • If you know of the risk and ignore the risk.

unlawful killing of another human being • Mens rea .a killing during the course of a felony • Mens Rea .• • The natural and probably consequence of your conduct • Some things that can get in the way of foreseeability: • 1.none.premeditated and deliberate (mercy killings) • B) Felony Murder . • C) Depraved heart murder (gross recklessness in risking human life). larceny. or • D) Felony murder • Causation • Degrees • First Degree • A) Mens Rea . • B) Intent to inflict serious bodily injury. Intervening acts • 2. it is strict liability • Causation . Crimes Against the Person • A. Felony Murder • Actus Rea .malice aforethought • Malice means • A) Intent to kill. not third parties or police officer • During • Going to the felony and leaving the felony are included . Homicide • Common Law • 1.if the death results from statutory felonies (rape.any other type murder and all other felonies that result in death • 2.conduct during the felony has to have caused the death • Limits • Killing • Could be by anyone in the old approach • Modern approach is that it has to be the D or Co-D. Bizarre coincidences IV. Murder • Actus reas . robbery. terrorism) • Second Degree . drug crimes. Passage of time • 3.

robbing a bank and running over someone when leaving. Murder • No degrees • Mens Rea needed: • 1. Voluntary • A murder that is committed in the heat of passion • Heat of passion: • A) A sudden and intense reaction. larson) • Modern times it has been expanded to any other felony that results in death • Burden of proof: the felony must have been proven beyond a reasonable doubt • Two other limitations: • Some states limit it to inherently dangerous felonies (i.e. not check fraud) • Some states say that the felony has to be independent of or separate from the killing (i. Knowingly . • 2.e. Purposefully • 2.. and • Words alone are not enough • C) No cooling off period.. Manslaughter • Two types: • 1.e.. robbery.• Felony • It used to be violent crimes (rape. • B) Adequate provocation that would inflame a normal person(i. this is separate) • 3. Involuntary • Two types: • Recklass or Negligently killing • A) Actus rea . someone cheating and getting caught. someone seeing a relative getting hurt).killing • B) Reckless or negligent killing of someone • Misdemeanor manslaughter • The predicate crime is a misdemeanor and death results • Model Penal Code • 1.

will get you off the hook with mens rea • Statutory Rape • Acuts Rea • Sex with a minor (14 in some states.the intent to permanently deprive . Recklessness plus a killing • 3. 16 in others. By force or threat of force • 3. 18 in others) • Mens Rea • None.taking away another's property by trespass or trick (without valid consent) • Mens Rea .• • 3. Manslaughter • No involuntary or voluntary • Two ways to commit manslaughter: • 1.e. Sexual Intercourse (common law: penetration) • 2. Rape • General intent crime • Actus Reas • 1. negligent or reckless about whether or not they consented) • A reasonable mistake. but can be prove differently) • There is no felony murder • 2. Negligent homicide • Negligently killing • B. if murder was done with extreme mental and emotional distress for which there is a reasonable explanation or excuse from the actor's situation under the circumstances as he believed them to be • It doesn't have to be an immediate reaction • The juror gets into the killer's shoes to determine culpability • 2. Larceny • Actus Rea . it is strict liability V. Without consent • Mens Rea • Common Law: any culpable or blameworthy state of mind regarding consent (i. in some jurisdictions. Like common law heat of passion. Crimes Against Property • A. Recklessly with extreme indifference to human life (presumed if the murder occurs during serious felonies..

Embezzlement • Possession is the difference • The owner is at issue • Embezzlement is when the criminal is already in possession of the property D.• • • • • • Tips: • 1. Title does not pass B. Burglary • Breaking and entering a dwelling of another at night with the intent to commit a felony therein • Breaking: any force by threat or fraud (gun.conversion of property that is held in trust • Mens Rea . It has to be personal property • 3. False Pretenses • Actus Rea . Embezzlement • Actus Rea .the intent to defraud • Tip: • Title passes • Future promises do not count Larceny vs. Robbery • Actus Rea . Brief dispossession counts • You don't have to intend to keep the property personally • You can take it with the intent to keep forever. saying you're the police) • Doesn't count if a door or window is already open • Entering: any part of the body or tools used (includes bullets) • Dwelling: someone sleeps there • At night (common law) • Specific intent to commit a felony • Modern Version: • Breaking and entering a building of another with the intent to commit a felony • No longer needs to be a dwelling or at night E.taking title to property by misrepresentation • Mens Rea .taking another's personal property from his or her presence by force threat of force . but then return it and still be guilty of larceny) • 2.the intent to defraud C.

buying the materials) • Mens Rea . Pinkerton Liability (Common Law): you are also liable for foreseeable crimes by co-conspirators in furtherance of the conspiracy • 4. You are at least liable for entering into a conspiracy • 2. an undercover cop is solicited) • B..e.with the intent that they commit the crime • Liability Rules: • 1.asking or encouraging someone to commit a crime • Mens Rea . Impossibility is no defense • C. Impossibility is not a defense (i.The intent to commit the target crime . Embezzlement • Presence is the difference • Robbery is then and there • Embezzlement is when the property is not there VI. Conspiracy • Actus Rea .with the intent to permanently deprive that person • This is larceny by force or threat of force • Robbery vs.e.Dangerous proximity (Common Law)/ substantial step (MPC) toward the completion of a crime beyond mere preparation • Mens Rea .a step taken towards completion of the crime) (i. scoping out the scene. You are also liable for the target crime • 3..intent to commit the crime being agreed to • Approaches: • Unilateral Conspiracy (Minority and MPC): Only one party must have the intent to achieve the crime (the other party can be an undercover cop) • Bilateral Conspiracy: Both parties have to have the intent to commit the crime (undercover situation doesn't work) • Liability Rules: • 1. Solicitation • Actus Rea . Solicitation is complete once the words are spoken (can't be taken back) • 2. Inchoate Offense • These are specific intent crimes • There is a purpose of committing a particular crime • A.agreement to commit and unlawful act or series of acts • Some states require an overt act . Solicitation merges into the target offense (Merger Doctrine) • 3.• • Mes Rea . Attempt • Actus Rea .

but provided assistance after (i. getaway car driver) • 3. the more you have to show their mens rea • Liability Rules: • 1. Principle in the second degree • The person who is present at the scene of the crime to help in the completion. The committed crime. but are liable for a separate crime for being an accessory after the fact • Modern Law (Statutory Approach) and MPC (in a nutshell) • Not focused on first and second degree principles or accessories before and after the fact .• • Getting out a gun and loading it. For principles in the first and second degree and accessories before the fact are liable for: • A. legal impossibility is a defense • Factual impossibility . the planner or the supplier) • 4. • 2. but provided assistance before (i. Accessory after the fact • The person is not at the scene of the crime.e. but doesn't commit any elements of the crime (i. family member who provides hide-out) • Liability Rules: • 1.attempt to poison.. Attempt merges into the target crime upon completion (Merger Doctrine) • 2. Factual impossibility is no defense. and • B.e. Accessory before the fact • The person is not at the scene of the crime..if something isn't a crime. you still need to know what they are thinking • The more a person does. Principle in the first degree • The person who is present at the scene of the crime and commits at least one element of the crime (i. Accomplice Liability • Common Law . but use a non-poisonous element by mistake • Legal impossibility .depends on the party you are to the crime • Parties to the crime: • 1. without other facts.. even though you think it is VII. Foreseeable crimes..e. masked bank robber) • 2. For accessories after the fact.e. they are not liable for the committed crime.

you assisted in the crime and. someone is about to shoot you) • Majority: You don't have to retreat • Minority: You have to retreat. unlawful force (i.e. b) it is rape or robbery. The aggressor withdraws with communication through words or actions. The escalation goes from non-deadly force to deadly force. Lo's 'Enough') • Your use of force was immediately necessary on the present occasion to protect against unlawful force . you don't have to retreat when it is when someone is making a lawful arrest. or • B.. then the other person pulls a gun) • MPC Self-defense: • There is no imminence requirement (i.. if it starts out with a fist punch.. you are liable if. under the actus reas. Non-deadly Force • You have to have reasonably believed that the non-deadly force was necessary to defend against imminent. under mens rea. Self-defense • Depends on whether you use deadly force or non-deadly force and whether it was necessary • 1.. J. (i. Deadly Force • You have to have reasonably believed that deadly force was necessary to defend against imminent. unless: a) it is in your home.e.• • Typically say. unlawful deadly force or serious bodily injury. (REASON: this is because people don't need to think they • Depends on whether you are the aggressor or not • The aggressor (the person who threatens unlawful force first) cannot use self-defense. unless: • A. Also. someone is about to punch you) • You DO NOT need to retreat • 2. then you can strike first (i. Defenses • A.e. in a bar fight. you intended to assist the commission of a crime • Grandma example • The grandkids want to rob the bank • The grandmother at least wants them to have a health breakfast to start their day and have a successful bank robber • She is liable under the modern approach because she is assisting VIII.e.

mens rea.e.• Immediately necessary than imminent force • MPC was thinking of battered woman's syndrome • Issue under MPC: • The level of your mistake determines your liability. then she is liable for negligent homicide . .if the woman was negligent in use of force. for the crime • I.