Criminal Law Outline

Anupum Grewal

CRIMINAL LAW: crimes are offenses against society; criminal law looks what the prosecution has to do to convict someone of those offenses. 3 lenses: o Common law: judge-made laws; came before legislative statutes *(FL) o Legislatures: Sometimes codification of common law o Model Penal Code

CLASSIFICATION OF OFFENSES 1. Felonies: those offenses that carry a punishment of more than one year in jail 2. Misdemeanors: offenses subject to lesser punishment, ordinarily less than one year in jail 3. Violations: the least serious types of crimes and typically carry only a fine as a punishment (or less than 6 months in jail) Malum in se vs. Malum Prohibitum a. Malum in se: crimes that are inherently immoral or dangerous are considered as malum in se (eg: Murder) b. Malum prohibitum: crimes where D violated a regulation added to maintain the orderly functioning of society are considered malum prohibitum. Although there may be nothing immoral about Ds conduct, D has violated a specific prohibition of the law (eg: Traffic violations)

PUNISHMENT
TYPES OF PUNISHMENT Utilitarian- looks forward, punish only if pain of punishment exceeds pain of community at large; focus on the view that humans focus on free will and the ability to have free choice and may be blamed when they choose to violate societies morals o (deterrence, rehabilitation, incapacitation, denunciation) Retribution-giving the person as much as they deserve for the punishment (punish them because they deserve it); looks backward, punishes on the basis solely on the voluntary commission of the crime o Harm: asks about what was the consequence of Ds conduct o Culpability: about Ds choice  Intentional decision is more culpable  A foolish decision is more culpable than an unexpected one

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PURPOSES OF PUNISHMENT 1. Retribution: D deserves to be punished because he or she has committed a crime o Looks backward at previous conduct to determine whether it deserves punishment irrespective of any future benefit to society

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2. Deterrence: punishment used to deter the commission of future offenses a. General Deterrence: punishment of the individual D used as an example to deter others from committing the same crime b. Specific Deterrence: punishment used to discourage the individual D from repeating criminal behavior o Deterrence looks forward to determine whether punishment will discourage future wrongful conduct 3. Rehabilitation: punishment may provide D with opportunities to remedy personal deficiencies that led him or her to commit the crime 4. Incapacitation: punishment, in the form of imprisonment or execution, renders D unable to cause further harm to society a. Collective Incapacitation: all person convicted of designated offense get the same sentencing b. Selective Incapacitation: individual sentencing 5. Denunciation: society must register its disapproval of wrongful acts and reaffirm the calues violated by these acts o Important to reassure the majority of society that the system does work and maintain social cohesion CONSTITUTIONAL LIMITS OF PUNISHMENT Double Jeopardy: punishing someone for the same crime twice Ex-Post Facto: punishing someone for a law which came into effect after the act was committed;  Example: Kansas v .Hendricks: o D was sentenced to ―Sexually Violent Predators Act‖ o However, this act came into effect after D went to jail; the law was nonexistent when D was bring charged Bills of Retender: no law directed at one person or one group Void for Vagueness: cannot criminalize conduct without fair warning PRINCIPLE OF LEGALITY o A person may not be punished unless that person‘s conduct was defined as criminal before D acted  Not all harmful or immoral conduct constitutes a crime; conduct must be prohibited by law before it can be punished (prevents ex- post factor laws) Due Process Clause: o Requires notice before a person may be convicted of a crime, clarity as to the meaning of the law, and sufficient specificity to prevent arbitrary enforcement by law enforcement authorities Fair warning: a person will have fair warning when a new law is written so they know not to commit the crime.

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Jury Nullification: jury knows D is guilty, but they acquit; no explanation is necessary

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STATUTORY INTERPRETATION
RULE OF LENITY When a statute is vague and ambiguous the court should use all available tools from the legislature to interpret what the statute means  if they cannot interpret it; court will side in favor of the defendant (this does not mean that D wins; but D is favored)

Ambiguity Ambiguity: First Rule is that words should be given their plain meaning o Intentionalism-the court looks at the intent (legislative history, transcripts, what they intended when they used those words) o Textualism-they look at the text, use ―four corners‖ approach, what it says is what it means o Dynamic Statutory Interpretation-combines the two (reconciles textualism w/ what the legislature was thinking at the time, and looks at the evolution of the statute in the present context)

Vague 2 ways of treating vague statutes: o Void as applied: statute remains in books however cannot be applied to a specific case o Void on its face: statute is always void; it is unconstitutional so it need to be removed

ELEMENTS OF A CRIME (4 elements that prosecution must prove) *Element: necessary characteristic of a crime 1. Actus Reus  Physical act/ conduct element; people are charged for conduct not thoughts o Conduct: must be a voluntary act (sleeping not conduct because it is not a voluntary act)  „act‟- requires some bodily movement (includes speech) o Status – makes being something a crime rather than doing something  it is something you cannot control or change vs. condition: which you can control and change 2. Mens Rea  mental state 3. Causation only needed in result crimes 4. Social harm  harm caused ACTUS REUS + MENS REA + CAUSATION = CRIME

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see if you can look back and find a voluntary act  time framing - - - - 4 GOLDMAN . he doesn‘t take his medicine and gets in a car. words alone are sufficient actus reus for the crime of treason Positive Acts vs. but getting in the car and driving in the first place is THE ACT!.CONDUCT Actus Reus – Culpable Conduct General Rule: all crimes require D to commit a voluntary criminal act.  When you see somebody engaging in something that in not a voluntary act. he knows this. unconscious movements. you cannot have a crime (do not get punished for thoughts) o Actus reus may be a positive act. almost every movement in criminal law will be voluntary  3 acts not considered voluntary: o 1) when the movement is not the product the actor‘s volition. or an omission.an actus reus  without an act. hypnosis o 3) reflexes or convulsions  Eg: D has epileptic disorder. Omissions o Both affirmative acts (positive acts) and failures to act when there is a legal duty to do so (omissions) may constitute the actus reus of a crime Positive Acts o Voluntary Requirement – all physical acts must be voluntary to constitute an actus reus. somebody else moves you o 2) sleep walking. such as hitting another. has a seizure and kills somebody the seizure is not the voluntary act that gets punished. a voluntary act is any act that is the result of conscious and volitional movement  Voluntary: your brain tells your muscles to move. which is a failure to act when there is legal duty to do so Purpose o Limits law enforcement by focusing its efforts on identifiable occurrences and separates those who seriously intend to commit harm from those with mere fantasies Identifying o Definition of each crime will include the actus reus Words Alone o Verbal conduct may be sufficient to constitute the ―actus reus‖ of a crime  Ex: an army officer tells the enemy the time and place of an attack.

failure to act only constitutes an actus reus when there is some other specific duty to act. you have an obligation to continue helping someone because you might leave them in a worse condition then they were in prior to helping) o Peril (creation of peril. (ex. 2) Ability to help (ex: you cannot swim however you still have a duty to get help) - - POSESSION o Actual Possession.babysitters) o Relationship (only applies to spouse-souse and parent-child) o Assuming care of another (when you voluntarily assume care for somebody and then abandon them. if the problem is your fault. but w/in your dominion or control and knowledge of the possession. therefore. you have a duty to help.o STATUS: only punishable when accompanies conduct VOLUNTARINESS  Can‘t be punished simply for being because it is not an act OMISSIONS General Rule: Generally. Carol has it in hand (physical).)  Ex: speeding and hit a person. Two people in car with drugs in middle glove compartment) Constructive Possession-not physically on your person. there is no general responsibility. actual possession is lacking but the person nonetheless exercises some sort of control over the item  Sole constructive possession  Joint constructive possession Ownership does not mean possession (ex. there is no legal duty to help another facing harm. Stacy does not have constructive or physical possession over it) o o 5 GOLDMAN . thus.item is either on your person or within easy reach  Elements  INTENT to control the item. (you know and are aware of the objects presence and have the intention and power to control it). you have to help that person  For SCRAP: o You need: 1) knowledge of the facts giving rise to the duty (ex: the child drowning in the water is YOUR child)…. (MPC) o Rationale: although there may be a moral obligation to help other in need. ex: filing taxes) o Contractual agreement (doctors. and  POWER to control the item  Sole actual possession  Joint actual possession  Where more than one person can possess the same item. Stacy owns highlighter. Exception: Duty to act may arise from: o Statute (statutory duties.

in ex. b. These involve a relatively low penalty and are generally imposed for public policy reasons. Impure: Liability without any culpable mental state with respect to at least one such element. but rather if there was a choice at some point-Look to see if you had a choice. vicarious liability is the exception. a. Morally blameless people are punished.TIME FRAMING o determine when something is voluntary (dude had seizures in the past. c. TRANSFERRED INTENT o o Almost always comes up in homicide where there is an unintended victim You don‘t transfer the intent unless there is a completed harm/crime Categories of Culpability 1) STRICT LIABILITY: Also called regulatory offenses.but the act of getting into the car. not taking med‘s. not the rule)  Usually strict liability. no mens rea Punishing one person for the conduct of another. UNLESS you are holding someone strictly liable. Pure: Liability without any culpable mental state with respect to an objective element. or intent. guy had a choice to get into the car. 6 GOLDMAN . take med‘s VICARIOUS LIABILITY o o imposing liability b/c of a relationship. and driving was voluntary) o Entire timeline does not have to be voluntary. if he takes med‘s. is allowed to drive. Substantive: Liability without moral fault. knew he had them. didn‘t take med‘s. most often in criminal statutes does not apply  Respondeat Superior-hold the employer to answer/responsible for the agent or employee‘s conduct if the conduct was w/in the agent‘s or employee‘s scope of employment (in the criminal context. no actus reus of ―employer‖-rather ―employee‖ MENTAL STATES MENS REA – CULPABLE MENTAL STATES A criminal act alone is not sufficient to punish someone. drove. got in accident and killed someone. there must be an accompanying ―MENS REA‖. the seizure was involuntary .

 Specific Intent Crimes:  Assault  First degree murder  Embezzlement  Larceny  Larceny by trick  False pretenses  Robbery  Forgery  Burglary  Solicitation. infer there is a mental state even if not in the statute a. 3. The intent to do the act prescribed. including the D‘s mens rea and responsibility.C. absence of a mental state  2 types: o 1) Public welfare offences: Regulatory or Morality offences that carry minor penalties o 2) Statutory Rape: only strict liability crime that carries a SEVERE penalty 3) M. and Attempt b. recklessness. PURPOSELY: For CONDUCT AND RESULT ELEMENTS. Specific intent is the mental element of any crime. When an actor intends the natural and probable results and the legal consequence of his conduct. An unexecuted intention to do some further act or accomplish some further result. 2. Conspiracy. Any time someone does an act with purpose. he is aware of the existence of such circumstances or he believes or hopes they exist. General intent is the D‘s blameworthiness or guilt. General Intent: Circumstances that indicate the offender knew that the prescribed criminal consequences (result) were reasonably certain to occur from his act or failure to act. 1. Any time someone does something with knowledge. D intends a particular result or a particular legal consequence. 2.02 (GENERAL REQUIREMENTS OF CULPABILITY) o All crimes require a mental state. 3.2) COMMON LAW: a. or negligence. 4. 4. For CIRCUMSTANCE ELEMENTS.P. GOLDMAN 7 . 1. Strict Liability no intent crimes. A person is not guilty of an offense unless he acts with one of four culpability levels with respect to each material element of the offense. Specific Intent: A state of mind where the offender actively desired (purpose) the prescribed criminal consequences (result) to follow his act or failure to act. 2. i.  General Intent Crimes:  All other crimes that are not specific intent crimes c. it is his conscious object to engage in conduct of that nature or to cause such a result.

iv. but you think you are being mugged. For CONDUCT OR CIRCUMSTANCES. he is aware that his conduct is of that nature or that such circumstances exist. NEGLIGENTLY: A person acts negligently with respect to a material element of an offence when he SHOULD BE AWARE THAT A SUBSTANTIAL AND UJUSTIFIABLE RISK THAT THE MATERIAL ELEMENT EXISTS OR WILL RESULT FROM HIS CONDUCT. jurisdiction. any level above it will also suffice** Rule: mental state presumed to be required unless otherwise stated o If silent offense.ii. he is aware that it is practically certain that his conduct will cause such a result. RECKLESSLY: A person acts recklessly with respect to material element of an offense when he CONSCIOUSLY DISREGARDS A SUBSTANTIAL AND UNJUSTIFIABLE RISK that the element exists or will result from his conduct. because it is so exceptional it should not be one we read when there is silence  Implicit acceptance of generally accepted principles  Regulatory offenses are strict liability  Balint Case Some of the MPC rules of interpretation we need to know: o Carry over rule: mental state in statute applies to all material elements o Presumption against strict liability  default mental state will be recklessness o If no deprivation of liberty could be strict liability. **NOTE: If a statute requires a low culpability level. knowingly. the actual nature of your bodily movements o Result of the conduct  Eg: death o Attendant circumstances  If your charged with resisting arrest by a police officer. MPC gives us guidelines:  It is established if a person acts purposely. you are resisting being mugged not being arrested 8 GOLDMAN . or recklessly  Not negligence because MPC drafters understand that it is an exception. The risk must be a great deviation. venue  Do not need to have a mental state regarding these Material Elements: the ones that have to be proven  3 types: o Nature of the conduct  Knowing what you‘re doing. KNOWINGLY: For RESULT ELEMENTS. iii. - MATERIAL ELEMENT V. SIMPLE ELEMENT   Simple Elements: statute of limitation. THE RISK MUST BE OF SUCH A NATURE THAT IT INVOLVES A GROSS DEVIATION FROM THE STANDARD OF CONDUCT THAT A LAW ABIDING PERSON WOULD OBSERVE IN THE ACTORS SITUATION.

(actual belief) **GENERAL INTENT: mistake must be HONEST and REASONABLE **STRICT LIABILITY: no mistake will be a defense because there is no mental state requirement MISTAKE OF LAW General Rule: mistake or ignorance of the law is generally not a defense. a person has notice of what conduct is expected of him or her Exceptions: o 1) D has been officially misled as to the law  Reliance on invalid statute  Reliance of judicial decision  Reliance on administrative order  Reliance on official interpretation o 2) Knowledge that conduct is illegal is an element of the statute o 3) Law not published yet or publicly known  D has not received requisite knowledge of the law o 4) Mistake of non-criminal law 9 GOLDMAN . would make and act or omission lawful. MPC: ignorance or mistake is a defense when it negates the existence of a state of mind that is essential to the commission of an offense Rationale: mistake or ignorance of fact is essentially a claim that D did not have the mens rea for all of the material elements of the crime Application: in order to determine whether a mistake of fact defense applies. but he does not know. the law presumes that everyone knows its requirements because the laws themselves are based upon the community‘s standards for moral conduct Rationale: simply by living in society. he is not guilty o Common Law offenses: some crimes contain elements that D did not need to know because Ds conduct is still considered morally wrong regardless of his mistake as to one element of the crime **SPECIFIC INTENT: any mistake will be a defense if it is HONEST. then the defense will not apply  EX: if D buys goods that are stolen.  MISTAKE OF FACT - MPC says: You have to have a mental state regarding one or more material elements and prosecution has to prove that The definitions of the mental states changes depending on element - General Rule: ignorance or mistake of fact precludes criminal liability when a person commits an act or omits to act under an HONEST and REASONABLE believe n the existence of certain facts. which. Ds mistake or ignorance of the facts precludes him from having the necessary mens rea for the crime Determining which elements are material o Statutory Requirements: if D needs to know something to be guilty of a crime. one must determine what facts D needed to know to be guilty of the crime (ex: the material elements of the offense o If D is ignorant or mistake as to a material element that does not require mens rea. if true. but he is unaware of it at the time.

and can be a result of a unanticipated or unforeseen circumstances o Occasionally includes the type of intoxication that is so prolonged that it results in mental illness o ALWAYS A DEFENSE Voluntary Intoxication: o When D introduces substances in his or her body knowing or should have known the substances could have had an intoxicating affect Mens Rea o Majority Rule (80% of states) Voluntary intoxication admissible to negate specific intent o Minority Rule (20% states. Conditional Intent: Having the intent to do something ONLY if something else happens General Rule: Conditional intent does not negate the mens rea INTOXICATION Intoxication: Includes alcohol. inadvertent. includes FL) don‘t allow evidence of voluntary intoxication at all (for general or specific intent)  Florida‘s exception: if D is using medication. medication. and any other artificial substances that distort behavior or mental processes Involuntary Intoxication: o Something was forced or compelled. - - - 10 GOLDMAN . taken properly  It can be that that D is voluntarily intoxicated (on the medication) as long as its for a legal reason.If unaware because drunk = aware cannot use intoxication as defense MPC: o Only a defense to negate an element of the crime a.can negates SI. Elements: o D needs to be aware of a high probability of the fact in question AND o D consciously and deliberately AVOIDED learning that fact MPC Exception: that there is an honest and actual belief that the fact does not exist. The D does have the right to try to prove that he/she ―actually believed‖ something different than the facts established.WILLFUL BLINDNESS: intentional avoidance of fact o o o o WHEN YOU SEE AN ISSUE OF PURPOSELY.INTOXICATION IS NOT A DEFENSE! o MPC. OR RECKLESSLY (never Negligently) – ALWAYS CONSIDER WILLFUL BLINDNESS. o You can always try to argue that D intoxication against conduct element o As for mental state. Intoxication of the actor is not a defense unless it negates an element of the offense. o Voluntary intoxication is never a defense for general intent crimes. drugs. KNOWINGLY. has to be lawful prescription. it‘s falling into disfavor in courts and legislature o FOR GENERAL INTENT CRIMES.

voluntary intoxication is a defense to any crime.b. during the commission or attempted commission of any felony o Common Law manslaughter (all other unlawful homicides) - - 11 GOLDMAN . it remains in force in federal courts o Abolished in FL Mens Rea o A homicide committee with malice aforethought  murder  Malice Aforethought:  Refers to killings committed with callous disregard for human life o Implied Malice: intent to do grievous harm or extreme recklessness or felony murder o Express Malice: purpose or intent to kill o Common Law: murder (w/ malice aforethought)-the killing of a human being by another human being w/ malice aforethought o Intent to kill o Intent to do serious/grievous bodily injury o Extreme recklessness (depraved indifference) o Felony Murder (death during commission of or attempted felony) [recklessness usually associated w/ this]-a person is guilty of murder if she kills another person. even accidentally. such unawareness is immaterial. however. death must occur within a year and a day of Ds act to constitute a killing o Today most courts have abandoned this requirement.induced intoxication.) o Ex. due to self. subject to one exception (below). if it negates an element of the offense. (No defense to recklessness. if the actor. rape.Voluntary intoxication is not a defense because rape is a general intent crime HOMICIDE Definition: o The unlawful killing of another human being (can be innocent or criminal)  Doesn‘t include suicide Elements: o Actus Reus  KILLING o Mens Rea  DEPENDS ON THE GRADE OF HOMICIDE o Circumstances  ANOTHER HUMAN BEING o Result DEATH Actus Reus (Killing) o a killing occurs when D ends a person‘s life  Death:  When life ends  Year-and-a-day Rule:  Under common law. **The MPC does not distinguish between ―general intent‖ and ―specific intent‖ offenses. Drunk driving. c. is unaware of a risk of which he would have been aware has he been sober. When recklessness establishes an element of the offense.

lawful act committed in a dangerous or unlawful manner) o 3. witnessing adultery o Involuntary Manslaughter (e. Def. knowingly.think about and plan it beforehand(can be formed between picking up the gun and pulling the trigger) o Deliberated-to measure and evaluate the major choices/facets of the problem nd  2 Degree Murder: (all other murders): o all other purposeful killings o lacks aggravating element. provocation) o 2. wanton. No time to cool off (objective)-defendant can be reprovoked by smoldering rage or rekindled rage c. Involuntary (e. Sometimes misdemeanor manslaughter ***Progressed from CLPennsylvania ModelMPC - MPC: o Murder (First Degree Felony): homicide constitutes murder if the killing is committed: purposefully. premeditated.g. poison) o Committed during felony or attempted felony o Willful. Voluntary (e. mutual combat.g. & deliberate o Willful-intentional o Premeditated. impulsive o generally unintentional killings with extreme recklessness elevated to murder  Manslaughter (all other unlawful homicides) o 1. o Voluntary Manslaughter (e. reckless manner) death was caused to another o Lack of intent and lack of awareness o Death caused by an unlawful act (misdemeanor manslaughter) Statutory Model  1st Degree Murder: o Committed in a certain way (e. physical attack. Provocation actually impassioned (subjective) d. or w/ extreme recklessness under 12 GOLDMAN . provocation)-unlawful killing of a person w/out malice. Provocation must be adequate (objective) b.g. must not have cooled (subjective) o Adequate provocation may be: sexual assault on a close relative. circumstances suffic ient to rob a reasonable man of self-control. lawful act committed in a dangerous or unlawful manner-negligence) o Direct result of an unlawful act (willful. unlawful arrest.g. the sudden heat of passion due to provocation o Provocation-mitigates murder to manslaughter a.g. unplanned.

when there is a death during a felony that is the result of extreme recklessness. Extreme indifference to the value of human lifeabandoned and malignant heart-under MPC.Extreme Mental or Emotional Distress o Negligent Homicide(3rd Degree Felony): Negligent Homicide (MPC)-a criminally negligent killing o Negligently-person acts negligently (should have been aware but wasn‘t). the Def. and completely aware of the surrounding circumstances (he wants those results to occur) o Knowingly-he is aware of the circumstances. must be aware that they are taking a substantial and unjustifiable risk to human life b. (practical certainty. there will be rebuttable assumption that he has the required malice to elevate the conviction to 1st degree Felony Murder (Rule) [**can have attempted FM in FL]  Common Law: any killing during commission or attempted commission of (or flight from) of any felony is punishable by death GOLDMAN 13 . involving a gross deviation from the standard of conduct of a law abiding person the same circumstances in the D‘s shoes a. but should have known of a substantial and unjustifiable risk that would result from his conduct represents a gross deviation from what a reasonable person would do. can‘t be simple negligence No Felony Murder. not just likely to happen) o Extreme Recklessness-Consciously disregard of the substantial and unjustifiable risk that the circumstances will result from ones actions. and practically certain that his conduct will cause such a result. Malice aforethought: i. involving a gross deviation from the standard of conduct of a law abiding person the same circumstances in the D‘s shoes (same as recklessness except w/out extreme indifference to human life) o 2: EMED. His failure to perceive this thought must be the cause of his actions o MUST be GROSS Negligence. Implied malice: ―intent to do serious bodily harm‖ o Manslaughter(2ND Degree Felony): the 2 circumstances: o 1: Recklessness. Expressed malice: ―intent to kill‖ ii.circumstances manifesting an extreme indifference to the value of human life o Purposefully-it is one‘s consciously object to engage in the conduct or cause the result.Consciously disregard of the substantial and unjustifiable risk that the circumstances will result from ones actions. however.

a. Inherently Dangerous Felony. In a jurisdiction that uses ―in the abstract‖ the crime of false imprisonment is not ―inherently dangerous‖ and 14 GOLDMAN . (Applied) Facts of the case-look at defendant‘s conduct b. ii. Example: Guy points a gun to persons head and falsely imprisons them. If you can violate the statute is a ―safe way‖ it is not ―inherently dangerous in the abstract.inherently dangers felonies that are not enumerated i. however: commission of an enumerated dangerous felony is prima facie (rebuttable) evidence of gross negligence. drive a car). In the abstract-(wording of statute.2nd degree if death result other felonies not listed Inherently dangerous felony (in the abstract vs. i.usually conduct words like danger. violence ii. so if conduct was inherently dangerous. facts of case)-one in which there is a high probability that death will result from the action: 2nd degree i. In the abstract 1) Looking at the elements in the statute. If committed in a dangerous manner. Gun accidently went off and kills him. You can only violate the statute in a inherently dangerous way. Enumeration of felonies-a first degree if death occurs during enumerated felony. not defendant‘s conduct)-if the felony can be committed safely or non-dangerously. then it is not inherently dangerous (ex.  MPC: does not have FM. As applied 1) Looking at the facts and how a crime was committed in a particular case. this ―presumption‖ permits jury to find that the prosecution has proved beyond reasonable doubt (brd) the mental state for gross recklessness murder ―typical‖ Modern Statutory: o death resulting from commission of or attempted commission (or flight from) an enumerated felony is 1st Degree Murder o Death resulting from commission of a non-enumerated felony is 2nd degree murder o Limitations (2nd degree murder): a.

) -in furtherance is of the felony itself. thus all the cofelons are treated this way. the act of one is the act of another as long as you‘re pursuing the same goals-this is why liability is imputed. Co-felons will be held responsible under FMR only if one of the felons does the killing (not bystander or cop) and it has to be in furtherance of the commission -restricts the circumstances under which a felon can be held liable for FM (i. and someone dies in the process. not an independent felony (kidnapping. was the shooter a felon? Was the victim a felon? Was the shooter a non-felon? Etc.e. however. robbery is not overlapping of homicide) --(so. Felony must be independent of the homicideaggravated assault and aggravated battery ii. otherwise known as the ―independent” felony rule: a felony must be independent of the homicide in order to support a felony-murder change. if someone went off the 15 GOLDMAN . then you would have a merger situation. In a jurisdiction that uses ―as applied‖ would say the to falsely imprison is ―inherently dangerous‖ and defendant could be convicted of felony murder. not a separate one the accomplice decided to do on his own (agent-someone who acts on your behalf. and could be charged w/ FMR—this is pretty messed up) d. someone could assault by stabbing w/out intent to kill but they die. they couldn‘t be charged w/ FMR b/c of merger. A felony that merges is not independent --how do we recognize merger: (ex. that means it can‘t support a felony murder charge. a felony that merges is not independent i. ii. assaultive act) look at all the elements to prove homicide and the [predicate] felony and if they overlap and the actus reus is the same for both. Agency or in ―furtherance of‖: agency narrows felony murder by restricting the circumstances under which a felon can be held liable for felony-murder (typically involves shooting deaths) i. Merger doctrine (assaultive felonies causing death)-if a felony ―merges‖ w/ a homicide. but one could rob. c.Defendant could not be convicted for felony murder.

causal connection between completion of the felony and death i. Adequate provocation c. Actual passion b. hypo [causal]: bank robbers are outside and bank manager is outside yelling at them when he is struck by lightning and killed-robbers would not be liable. FM generally does not apply --(ex. if a cop shot an innocent person when trying to shoot felon.  plan and went and committed a separate felony. Res gestae-the facts and circumstances surrounding the FMtime. the felon wouldn‘t be liable. **one of the most important factors in deciding if there has been a break in the chain of circumstances is whether the fleeing felon has reached a place of temporary safetyif this can be found. distance. it‘s true that victim wouldn‘t have been there ―but for‖ the felons. then the co-felon wouldn‘t make the other felons liable) -looks at the action of the felon/accomplice -2 things that are looked at: looks at identity of killer and identity of the victim -ex. - Misdemeanor Manslaughter (a shortcut that is similar to FM) 16 GOLDMAN . o Words are not enough for provocation o In Maher case they would not automatically dismiss the case b/c it was just words. That they didn‘t cool off e. that enables 1st degree murder (set in motion the events) o Second degree elevated to first degree if: o 1) Defendant had malice aforethought through extreme recklessness o 2) The killing is attributable through the act of the felon AND o 3) Ds conduct was committed during an enumerated felony o Prosecution needs to prove malice if the presumption of extreme recklessness is rebutted o Elements/Categories that the court look for a.) Maher Case says – we are not going to stick by all the ridges lines they will look at what a reasonable person would have done. No time to cool off d. provocative act doctrine would hold them liable b/c their acts provoked it e. and both are needed) The Provocation Act Doctrine-Defendant or co-felon provokes the reaction of a non-felon and someone is killed. however. It has to be the victim who causes the provocation (there has to be a link between victim and defendant. but they were not the proximate cause.

o D‘s act must be a substantial factor in bringing the above result. strict liability  so that people do not go to jail for involuntary act CAUSATION 1) Cause in fact. punching a wall and someone dies-not liable b/c in the abstract.  Need to prove Def. 2) Proximate Cause (cause at law): D will be regarded as proximate cause when the result occurred as a natural probable consequence of his act (foreseeable) and no intervening factor. the result would not have occurred. the Def. „But For‟ Test Criminal Law generally confines causes to the class of necessary conditions or acts ―but for‖ which harmful result would not have occurred. may be liable for MM o Need the intent to commit a dangerous misdemeanor (the misdemeanor must be dangerous ―in it of itself‖ [malum in se] and cause a death) o Look at it in the abstract (look at wording of statute) o Ex. o General rule: responsive (dependent) intervening causes will not break the chain of causation because it was in response to the act of the defendant o If the defendant initial action puts the other person in the situation he is still liable o Ordinary medical negligence happens it’s foreseeable o Gross negligence is not foreseeable o If act was coincidental than it‘s not intervening 17 GOLDMAN . The intervening cause may be UNFORSEEABLE by the D at the time of the act. sufficient to break the chain of causation affected the events. caused a death as a result of committing or attempting to commit a dangerous misdemeanor. carrying a gun w/out a license is dangerous in and of itself b/c in order to get a license you have to meet specific requirements o Ex. o (the result was reasonably forseeable from defendant‘s conduct) o Intervening Events: absolved D‘s of causal responsibility for creating a necessary condition for harm if it could identify an ―intervening‖ event that ―broke the chain of causation‖  D states that something else after his action caused the death Intervening Causes: An intervening cause is a cause set in motion after the D‘s act. ‗but for‘ the act. punching a wall isn‘t dangerous in and of itself Different types of mens rea leading to manslaughter:  1) Voluntary manslaughter: results from provocation (purpose)  2) Manslaughter that results from ordinary reckless  3) Negligent Killing: manslaughter resulting from negligence  4) Misdemeanour manslaughter: no mens rea regarding the death.

causation but it was justified  exonerates conduct as right/ no bad act  no bad character (a person with similar available information would have done the same thing)  the actual existence of certain circumstances did exist... mens rea. it doesn‘t break the chain of causation and D is still responsible Superseding Causes: (An intervening cause that breaks the causal connection) an additional act or occurrence that will supersede the D‘s act as the legally significant causal factor.. which would otherwise be criminal.. It is the sole cause of the result b.. under MPC. Independent (coincidental) causes: will break the line of causation unless it is highly foreseeable o Includes gross negligence A cause is more likely to be supervening when: a.. JUSTIFICATION DEFENSE: BURDEN OF PROSECUTION. b) Must be a duty imposed by law or contract.o If act was responsive than its not intervening. c) The omission to perform the duty must be the immediate and direct cause of death.BEYOND A REASONABLE DOUBT 100% AFFIRMATIVE DEFENSE: BURDEN ON ∆. not merely reasonable 18 GOLDMAN . I did it. they still wouldn‘t lose the right of self-defense if the other‘s aggressive act is grossly disproportionate (pulled gun after someone kicked them) or if the first aggressor withdraws from the altercation and clearly communicates the intent to withdraw or not communicate it b/c of time if it‘s too dangerous to do so and then the other aggressor continues the altercation o Actual belief-under CL must actually believe this person will seriously injure/kill you.it arises under (1) a section of the Code which so provides or.. this belief must be right.. Justification: there was conduct.  Yes. PREPONDERANCE OF EVIDENCE 51% AFFIRMATIVE DEFENSE .. It is independent of the D‟s actions - 4) Causation by Omission a) Duty neglected must be a legal duty and not a moral obligation.. (2) it relates to an offense defined by a statute other than the Code and such statute so provides.... or (3) it involves a matter of excuse or justification peculiarly within the knowledge of the D on which he can fairly be required to adduce supporting evidence. legal and proper   State has burden to disprove the argument of Defendant Self-Defense: must be nonaggressor unless if the defendant did take the first step of aggression. but I can‘t be liable BECAUSE…(affirmative defense)... which makes the actor‘s act.

porch. size of the aggressor vs.‘s shoes (ex. or Castle Doctrine o MPC: duty to retreat unless at home or work unless aggressor is coworker o - **one has the duty to surrender possession of property to a person claiming a lawful right thereto. depends on the jurisdiction 19 GOLDMAN . you were justified in the killing  Imperfect self-defense-(provocation)-reduces murder to manslaughter  defendant has actual belief in reasonableness but not objectively reasonable in what a rationale/reasonable person would believe in that situation—the defendant must honestly. but not taking into account the particular psychology of the woman herself (in Def. apparent (ex. so it‘s not apparent) safety (ex. if a person is in their own residence (and car in FL) they do not need to retreat (in FL. there‘s an alley. If the aggressor withdraws from the altercation and effectively communicates that to the other person  2. SBI. but the batter woman proceeds to kill the batterer due to a belief that no viable alternative exists—question of whether it was reasonable for the battered person to believe that deadly force was necessary (imminence of danger is examined subjectively)-it can either be imminent. making it imminent in a way.‘s situation. your size) o Necessary use of Force-must be necessary to avoid severe bodily injury (SBI) or death  to protect against the danger o Imminent-the SBI or death must be imminent. but you don‘t see it or know about it. anything w/ a roof over your head-hotel. or seem like no reasonable alternative. forcible felony. can‘t jump off 5th floor)  Castle Doctrine-an exception to duty to retreat. car)  there is no duty to retreat when someone is committing an enumerated felony (ex. but unreasonably believe the use of deadly force is necessary Retreat (under Self-Defense): o CL: duty to retreat unless at home (regarding lethal force) if knowingly can retreat in complete. If victim suddenly escalates a non-deadly fight into a deadly fight o Battered Women Syndrome (extension of self-defense)-(some jurisdictions don‘t accept this defense)-standard of reasonableness (objective approach)what would a reasonable woman do in the Def. Reasonableness-belief must be reasonable in Def. armed robbery) o Florida: no duty to retreat if person believe imminent death. about to happenand defense must be necessary to avoid the SBI/death o Proportional (use of force)-the use of force must be equivalent or less  Perfect self defense.‘s shoes)  if the battered woman is not faced w/ imminent danger in fact.(justification)-you are not guilty. prior to using deadly force Aggressor Rule:  D may not use deadly force if he is the initial aggressor EXCEPT:  1. taking into account the prior history of abuse.

D reasonably believes that intruder will imminently and unlawfully enter dwelling 2. o May have been justified by necessity if the boy had consented and was dying anyway. If you are reckless or negligent in bringing about a situation requiring the choice of evils. No reasonable means of escape or avoiding the harm. unless the killing is justified by excuse. There is NO EXCUSE unless there is a necessity. Direct causal relationship between crime defendant committed and harm defendant avoided 3. sometimes a close friend.    Necessity must arise from attempt to avoid an evil that is greater than the evil sought to be avoided by the law defining the offense.Affords a general justification for conduct that would otherwise constitute an offense. D did not cause the harm (clean hands) 5. o Setting a fire to save a town clearly has the elements of arson. it may be the basis for conviction. no legal alternatives 4. Dudley & Stevens=Cannibalism): All would have died if they had not eaten the boy but still MURDER. Reasonably believe deadly force is necessary to prevent intrusion *Reasonably believe that intruder intends to commit a forcible or atrocious felony once inside NECESSITY (justification. Escape from Intolerable Prison Conditions: o Conduct that would be offensive is justifiable by reason of necessity if the accused was without blame in occasioning or developing the situation and reasonably believed such conduct was necessary to avoid public or private injury greater than the injury which might reasonably result from his own conduct******************  FOR NECESSITY: o Common law: 1.Defense of others-can defend others to the same extent as you would defend yourself o some CL jurisdictions recognize there must be a relationship such as family. D did not recklessly or negligently put himself in that position 6. (The Queen v. Defendant has to have chosen the lesser evil harm avoided is less than harm that would have been caused Limitations to necessity: - 20 GOLDMAN . MPC that you can defend anyone Defense of Habituation MAJORITY RULE TODAY = defendant may use deadly force against a home intruder if: 1. defendant faced clear and imminent danger 2. Killing an innocent to save your own life is deliberate killing and clearly murder. but the harmful consequences are justified because of the lesser of evils and the necessity to save the town. true affirmative defense) .

o no reasonable opportunity to escape the threatened harm o [sometimes there is a 4th element required: the ∆ must submit to proper authorities after attaining a position of safety.works violating law in protest.‘s conduct but they are not liable (an excuse operates different from justification but yields the same result)  Excuses are personal to D and cannot be used by third parties. itself. Common law: cannot be a defense to murder - INSANITY AND MENTAL ILLNESS Generally. the object of the protest) -doesn‘t work (when you break a law not related to the protest) (no necessity defense) EXCUSES society doesn‘t like the result of the Def. but usually only required in prison escape cases] EXCEPTION: This defense is NOT available to one whom willfully or wantonly places his self in a situation in which it is probable that he will be subject to compulsion or threat.- 1. justifications can be used by third parties -DURESS Elements: o an immediate threat of death or serious bodily harm. point is to get arrested and challenge constitutionality of law (necessity defense) .indirect civil disobedience –there is no causal relationship (involves violating the law or interfering w/ a gov‘t policy that is not. MPC: o Choice of lesser evils test FL: o Have to have honest reasonable belief of danger o Significant harm to person and third party (not only death) o Real imminent danger o Clean hands. D must not have created necessity o Cannot intentionally cause harm o No reasonable means to avoid *****FLORIDA TREATS NECESSITY AND DURESS THE SAME**** - . 3 Categories: 21 GOLDMAN . Doesn‘t apply to homicide 2. o a well-grounded fear that the threat will be carried out.direct civil disobedience-there is a causal relationship (involves protesting the existence of a law by breaking that law or by preventing the execution of that law in a specific instance in which a particularized harm would otherwise follow) . Only applicable to physical natural forces .

look to the Ds mental state at the time of the offense b. Can’t be sentenced to the death penalty Possible tests to determine whether D is insane: o Common Law  M‟Naughten Test (FL standard) 1. Insanity a. the burden is on the state to prove D is sane e. d. 3. not affirmative defense but it is an attack on the mens rea requirement ex. It bars prosecution while the ∆ is incompetent. NO LONGER USED IN ANY AMERICAN JURISDICTIONS o MPC  If D lacked the substantial capacity to EITHER appreciate the criminality of his conduct OR conform his conduct to law o **distinguish between insanity and incompetent defenses****  Insanity Defense: Issue is whether D was insane at the time of the crime if he was he is not guilty  Incompetent Defense: Whether D is insane at the time of trial  if he his. Lack of competence is not a defense. the D would lack the mental state required for the crime. looks at the Ds mental condition and ability to understand the criminal proceedings. Presumption Defense: once evidence of insanity is introduced. unable to conform his conduct to the law  Durham Test 1. D can claim insanity defense if he did not know or understand his act was wrong/nature of his act  Irresistible Impulse Test 1. Theft requires the D believe the property he takes belongs to another. Must regain competency before can stand trial remain in prison until competency returns ENTRAPMENT 22 GOLDMAN . he cannot be tried (this does not mean D is not liable) 2. the presumption is that the ∆ was sane at the time of the commission of the act. (trial either delayed or suspended) d. can be affirmative defense c. c.1. look to the Ds mental state at the time of the offense b. Incompetencenot about the mental state at the time of the offense can you stand trial? a. Was the crime the product of Ds mental illness 2. Whether D knew his act was wrong OR understood the nature of his act 2. Whether D was unable to control his actions. b. Diminished Capacity  (effect on required mental state) a. if the Ds mental illness makes him incapable of understanding that.

Someone tries and fails  2. o Due process Subjective Approach (FLORIDA & MPC) Rule: Whether police conduct would induce a person with no predisposition to commit the crime. victim.  focus on the predisposition of defendant . negligent crimes. remember the mental state of attempt is specific intent*** o 3 situations where attempt applies:  1. and means to commit crime not in same place not dangerously close  MPC: conduct that is a substantial step towards the commission of a crime and strongly corroborative of a criminal purpose o Mental requirement:  Specific intent to commit THAT crime o *Rule: YOU CANNOT ATTEMPT UNINTENTIONAL/ACCIDENTAL CRIMES  No attempt versions of reckless crimes. and felony murder o **when you see attempt on exam. o Question is an issue of guilt or innocence for the JURY to decide.o Objective Approach = 2 Flaws Rule: Whether police conduct was so unconscionable or reprehensible as to offend our notions of fundamental fairness or justice.goes beyond the statutory requirement of guilt to find mitigating circumstances (―not otherwise guilty‖) o Question is an issue for the COURT to decide. Those who are in the process of trying  3. o ATTEMPT Act requirement:  Common law: conduct that gets dangerously close to the commission of the crime  dangerous proximity test  If D. Those who try but something makes it impossible to complete Common Law 6 tests:  1) dangerous proximate test  2) last act test: whether D committed last act to commit the crime (used by all jurisdictions)  3) indispensible element test: what remains to be done  4) probable desistence test: attempt occurs when D crosses line when most people would think better of their conduct and stop  5) unequivocable test: when D standing alone unequivicably manifests the target crime  6) physical proximity o - IMPOSSIBILITY o o “I cannot be guilty of attempt because it was impossible for me to commit the crime” 3 forms:  Factual Impossibility: 23 GOLDMAN .

- - COMPLICITY The person who commits a crime: principle The person who helps: accomplice o ACT: aiding or encouraging the principle o MENTAL STATE: with the intent that the crime be committed o Accomplice liability is vicarious liability 24 GOLDMAN . the crime is in the asking RENUNCIATION: (defense to solicitation under MPC)  the person who tried to solicit the crime ended up changing heart and attempting (completely and voluntarily) to stop the crime from occurring. (must do more under the circumstances to prevent the crime – you don‘t have to actually prevent the crime – but you must make the full effort. after soliciting another to commit a crime persuaded him not to do so or otherwise prevents the commission of the crime. which is to protect the citizens of this state from victimization and from exposure to inducements to commit or join the commission of the crime. therefore he cannot be liable for attempting Inherent Impossibility:  In which the means chosen by the actor are manifestly unlikely to achieve the ends  SOLICITATION Solicitation: asking someone to commit a crime with the intent that they do it o Mental State: Specific Intent  Specific intent of inviting  Specific intent that person complete event o Completion is not necessary.) INNOCENT AGENTS: o Under Common Law: it is no defense to a charge of solicitation that the solicitee is unaware of the criminal nature of the conduct solicited or of the Ds purpose  The theory behind the change is that one is no less guilty of a crime just because he employs an innocent agent  This would defeat the purpose of the statute. o Example of MPC on renunciation: ―it is a defense that the actor. no money  D cannot argue it was factually impossible for him to take money because there was none in there so cannot be liable for attempt for larceny.  Claim that it was impossible to commit the crime because of some circumstances beyond Ds control  Rule: Factual impossibility is not a defense to attempt o Ex: put hand in someone pocket to take money. by actually stopping the crime yourself. Legal Impossibility:  Claim that it was impossible to complete the crime because what D was trying to do is not illegal  This IS a defense BUT almost never happens. o Ex: D believes act is illegal but it is NOT. under a complete and voluntary renunciation of his criminal intent‖ o Can be done by going to the police.

to withdraw all you have to do is discourage the principle before the crime is committed  If you aided the principle. Mere presence does not make a person an accomplice o 2. – the mail was delivered by the mailman however. The Feigning Accomplice and the Feigning Principal o (ex. Accessory After the fact o To be an accessory D must assist the principle who has already committed the felony with knowledge that the crime has already been committed with intent to help them avoid arrest or conviction Special Issues o  A person is an accomplice to any crime the commission of which was a reasonable foreseeable consequence of his conduct  MPC is a stricter and narrower approach from the general common law under Accomplice Liability. MPC requires a purposeful mental state (or the same as required by the crime) where the Common Law (popular law) says it only must be ―reasonably foreseeable‖ – (this also depends on each jurisdiction) Innocent Instrumentality o for example – when the terrorist mails anthrax letter to a senator‘s office which kills the senator. crime is in the agreement AND an overt act  Overt act can be minimal 25 GOLDMAN . and other foreseeable given the accomplices help or encouragement o Accomplice can be guilty even if principle is not caught or has a valid defense Persons who are not accomplices: o 1. One person wants another to get into trouble – so he agrees to participate in a crime with the other – upon commission of the crime – that party calls the police to bust the other one – who should be charged?) o to consider whether this principle applies you must consider whether the feigning principal possessed the mental state required for accomplice liability. Mere knowledge  Have to actively engage or encourage o 3.) mental state regarding the underlying crime and 2. under these circumstances the law can charge the terrorist as the principle actor and the mailman as the innocent instrument used to deliver the deadly materials.- - - - - - Accomplice is guilty by the actual crime he helped or encouraged.) mental state regarding the assistance. o CONSPIRACY Conspiracy: an agreement between 2 or more people to commit a crime plus an overt act in furtherance of the crime o Mental State: Specific Intent o Does not matter if the crime happens or not. you have to take an affirmative step to prevent the crime from happening  have to negate your help. Members of the protected class cannot be accomplices  Victim of the crime cannot be an accomplice Withdrawal: o Depends on what you did  If all you did was encourage the principle. Need both 1.

o o o o o Common Law: needs to be a meeting between 2 guilty minds (bilateral agreement) Under MPC: Unilateral Rule you can have a conspiracy if 2 people reach an agreement even though one of them does not really want the crime to be committed (unilateral)  Ex: undercover police officer Vicarious Liability: if you are a member of a conspiracy. etc. Lesser Included Offenses:  A crime that necessarily includes ALL the elements of a greater crime o Ex: Larceny (lesser included offence of robbery)  Cannot commit robbery without larceny  Rule: a lesser included offense will MERGE will a greater offense o Cannot be punished multiple times for something that is really the same conduct  ****discuss both offenses on an exam but talk about merging of the crimes. you are liable for all foreseeable crimes by co-conspirators Pinkerton Doctrine: conspirators are liable for acts of other conspirators that are in furtherance of the conspiracy  Based on how close D came to completing the offense (Proximity Test under Common Law to satisfy overt act)  Co-Conspirators are liable for acts done in furtherance of the conspiracy when they are:  Crimes in furtherance of the conspiracy  Did not fall within the lawful scope of the conspiracy  Foreseeable as a natural and necessary consequence Limitation to Conspiracy:  Whartons Rule: prevents prosecution for conspiracy when the crime is of such nature as to necessary require the participation of 2 persons for its commission WITHDRAWAL Common Law:  Withdrawal is not a defense. you withdraw from future vicarious liability but you are still guilty of the conspiracy o MPC:  Allows withdrawal ONLY if D voluntarily and completely renounces the crime  Renunciation needs to be motivated by change of heart and not a fear of getting caught  Hard to prove. once you ask someone to commit a crime you are guilty of conspiracy  Wrinkle: Vicarious Liability o If you withdraw from conspiracy your still guilty of conspiracy but no longer guilty of additional crimes committed  if you withdraw from conspiracy. Merger Rule o 2 contexts:  1. o - 26 GOLDMAN .

he is only acquiring custody o His subsequent decision to keep the property for himself would constitute larceny because it is beyond the consent of the owner Claim of Right If actors has a claim of right to the specific property he takes. this exonerates him from the charge of larceny because he believes he is the owner of the property and does not have the mental state to deprive the owner of the property.L. Elements: o The offense is committed by every person who  1) takes possession  2) of personal property  3) owned or possessed by another  4) by means of trespass (trespass means without permission or consent)  5) with intent to steal the property (to permanently deprive the owner of possession)*  6) carries the property away IN FLORIDA – you can now intend to permanently or temporarily deprive. Under C. – it has to be permanent deprivation! *The intent to steal maybe be found even though defendants primary purpose is not to deprive the owner permanently of possession when: o 1) D intends to sell the property back to its owner o 2) D intends to claim a reward for finding the property o 3) D intends to return the property to its owner for a refund. 2. Custody If a person received property for a limited or temporary purpose. o Mental state here is subjective. 27 GOLDMAN . Inchoate Offences:  Solicitation and Attempt MERGE with each other  Conspiracy does NOT MERGE THEFT 4 types of theft offenses o 1) Larceny o 2) Larceny by Trick o 3) Embezzlement o 4) False Pretenses 1) LARCENY (specific intent crime) o A wrongful taking and carrying away of the person property of another without his consent. with intent to deprive the owner of his property and to appropriate it to the takers use fraudulently. - Possession vs.

and not title. FRAUD.  can include future promises as long as at the time you make it you have no intent to perform 28 GOLDMAN .& promise to pay you in a week. false pretense or misrepresentation of known false information made recklessly. labor. Takes possession (taking possession regards control – ex.2) LARCENY BY TRICK (specific intent crime) o o Must prove that the ∆s promise was FALSE AT THE TIME IT WAS MADE Similar to larceny. DEVICE. and actual theft was accomplished. Of another 4. but I never do Elements: 1. specific intent to defraud. BY TRICK. pretense or false promise was believed / relied upon. is guilty of the crime of theft by embezzlement. o 4) FALSE PRETENSES (specific intent crimes) o Every person who knowingly and designedly by any false or fraudulent representation or pretense. defrauds another person of money. takes property away 3) EMBEZZLEMENT (specific intent crime) o Every person to whom property has been entrusted who fraudulently appropriates that property to her own use or purpose. the 4-6inch move of air conditioner) 2. real or personal property  Larceny by trick consists only of fraudulent acquisition of possession only. trick or device). 5.  Similar to “Larceny by Trick” – but victim chooses to transfer ownership (under false information of existing or past fact) . labor. defrauds another person of money. etc. and the victim did not intend to transfer the ownership and actor had the specific intent to deprive the victim of his property  Example: I promise to buy some dope from you. To prove this crime you must prove: o 1) A relation of trust and confidence existed between 2 persons. With intent to steal the property and  (permanently deprive) 6.Knowingly by any false or fraudulent representation or pretense. is guilty of the crime of theft by false pre tense. o 2) Pursuant to that relationship one of those persons accepted property entrusted to her by the other person and o 3) With the specific intent to deprive the other person of his rights/property. but the actor obtained possession of personal property by making a false promise with no intent of performing (or by other fraud. Of personal property 3.  Elements  Promise without intent to perform. the person appropriated or converted it to her own use or purpose rather than for the purpose authorized by the owner. real or personal property.

not just penal penetration FL STATUTE (p. penal penetration of the vaginal area  Woman  A woman that you are not married to  Forcibly:  Force or threat of force. then it‘s False Pretenses) EMBEZZLEMENT use of property in a way inconsistent with terms of trust with intent to defraud Title does not pass FALSE PRETENSES Obtaining title to property (sim. Conversion of property held pursuant to a trust agreement Obtained possession by making false promises Not to perform promise – fraud. not title (if title. same TODAY: Most laws are gender neutral o Punish by the type of contact o And degree of conduct o Statutes today recognize object rape. RULE: a conviction of theft based on false representations cannot be sustained if the false representations were made in the actual and reasonable belief that they were true activity taking and asportation of property from possession of another person Method Without consent or with consent obtained by fraud intent title LARCENY With intent to defraud Title does not pass LARCENY BY TRICK Taking the possession of property (not title) by FALSE promise w/o intent to perform. trick. required more than the force of penetration (the type of force that would cause bodily harm)  Against will  No consent Battery is a crime where there is touching o Sexual battery/sexual assault.662) - - 29 GOLDMAN . to larceny by trick) By consent induced by fraudulent misrepresentation (∏ could not know promise was false) with intent to defraud Title Passes RAPE Rape is a general intent crime o Needs a voluntary act o Mens rea: faulty blameworthy mind (traditional common law): carnal knowledge of a woman forcibly and against her will  Carnal knowledge:  Is sexual intercourse. device Possession only.

o - - - o MPC: o Rape statute:  Limited to male on a female  Not recognizing that man can be raped  Exclusion of wives from the statute  Recognizes other sexual offenses  If rape is on voluntary social companion. that act of penetration is rape Today we recognize the threats of humiliation as a form of force Duress and Fraud can also substitute for force The ambiguity of human conduct under rape= mistakes can happen o EX: regarding a woman‘s consent You have to resist until the end o You cannot stop resisting during the act The failure of physical resistant= not consent Voluntary intoxication does not negate the crime rape FL/MPC  You cannot rape your wife. FL uses sexual battery  Does degrees of sexual battery depending on the type of contact  Recognize every body part (more than vaginal) It isn‘t rape if the penetration is done for a valid medical purpose 30 GOLDMAN . charged dropped down a degree  Ie: date rape Conduct: o Resistance may be required o Type of penetration o Whether there is force/threat In majority jurisdiction resistance is required o Resistance must be reasonable under circumstances and… In minority resistance is not required o Extreme minority: Absence of affirmative permission Whatever force is needed in sexual assault and sexual battery cases is the force of penetration o If there is no affirmative permission.