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The principle of legality a. Due Process aspect i. Provides people with some protection from arbitrary enforcement of the law 1. people need to know about law a. not actual knowledge of law but ability to know about the law ii. No crime without existing law iii. Malum in Se (evil within itself) 1. Nature of the crime itself shows that it is evil a. Murder and rape iv. Malum Prohibitum (evil because said is evil) 1. Legislature says it is a crime b. Legal Concepts i. Vagueness 1. Law does not allow reasonable notice, test: a. So obscure that men of ordinarily intelligence must necessarily guess as to the it’s meaning and differ as to it’s applicability 2. Arbitrary and discriminatory enforcement of law should be avoided a. A statute must not encourage arbitrary/erratic arrests and convictions ii. Overbroad 1. State has too much power by possibly prohibiting conduct protected by 1st amendment a. Fighting words are the exception to free speech 2. Does not draw distinction between innocent conduct and conduct calculated to cause harm and fear iii. Sentencing discretion 1. Abuse of discretion standard a. The higher court will evaluate if the judge did something really outrageous and arbitrary. b. Fear of judge acting out of bias. i. Usually appellate court tips the scales in favor of the lower court, unless they did something truly appalling iv. Unconstitutional Laws 1. Bill of attainder (Your face is illegal!) a. Make criminal an act that when done was not criminal; or b. Aggravate a crime or increase the punishment therefore 2. Ex-post facto a. Legislative act that inflicts punishment or denies a privilege without a judicial trial II. Principles of Statutory Interpretation a. Plain Meaning i. The statute elements mean what they mean 1. sometimes evidence contradicts these meanings 2.There is often the problem that the legislature left something out of a law. Did they leave it out because they didn’t like that aspect or because they thought they already pointed you in that direction? b. Terms in the law that come from common law i.Presumption that legislature used common meaning of term when enacted statute 1. legislature got common meanings from common law c. Legislative History i. Defines what the legislature means by elements of statute
Doctrine of Lenity Justice errs on the side of the defendant III. Relationship between Common Law and Statutes a. Statutes based on common law principles b. Legislative history on some laws i. Says what the legislature meant by some terms of statute IV. The Challenge of “Legislative Intent” a. What did the legislature mean by certain terms i. Look to common law definitions of the time to determine meaning ii.If one meaning is constitutional and one is unconstitutional then court always goes with constitutional meaning V. Understand the presumption of innocence and Burden of Proof a. Presumption of Innocence (Presumed innocent until proven guilty) i. Jury should not have strong opinion about the case before trial ii. Jury instructions are the number 1 reasons for reversal and appeal iii.Jury should presume the defendant is innocent, and make the prosecutor prove guilt 1. Presumptions are a start point 2. Prosecution must rebut the presumption (change it) b. Identifying Elements of a crime i. Actus Reus ii. Mens Rea iii. Causation iv. Attendant Circumstances c. Understanding the relationship between elements and proof i. Elements must be proven beyond reasonable doubt d. Role of Circumstantial evidence i. Do the circumstances point towards guilty or not guilty ii. Direct evidence and circumstantial evidence 1. One is not better than the other a. Depends on the case and the evidence e. Role of Inference i. Using factual circumstances to infer conclusions ii. Not a starting point iii. Inference can rebut a presumption iv. Inference is permissive f. Deciphering proof Burdens i.Prosecution has to prove that guilt is reasonable and that innocence is unreasonable 1.Prosecution also has burden of production of facts that point to guilt ii.Proof has to be such that it excludes every fair and rationale response except for one, guilt i. VI. Purpose of Criminal Law a. Retribution – Purely motivated by feelings i. Create remedy for wronged past ii. Punish out of revenge- make punishment “fit” the crime b. Deterrence – utilitarian (done for good of society) i. Individual- punish to deter individual from committing future crimes ii. General- punish to deter others from engaging in similar crime for fear of incurring same punishment – 1. can be deterrence to punish a person wrongly to scare everyone else into line
Knowledge of the possession 2. The “Actus” component a. Actus Reus______________________________ a. The “Reus” component a. The concept of “social harm/prohibited result” i. Volition is component of possession like physical act IX. Legal duty (file taxes) iii. Rehabilitation– utilitarian (done for good of society) i. Omission + Duty of Care = Criminal Act a. Mens Rea_________________________________ General Intent Specific Intent a. Societal interest is harmed 1. Criminal has fewer opportunities to commit acts causing harm to society d. How is this requirement satisfied by: i. Volition of act is separated from Mens Rea i. No action is an act when there is a failure to act under certain circumstances 2.c. When you create the danger (if you hit someone and then take off) ii. Incapacitation– utilitarian (done for good of society) i. Did act occur with right of state of mind (Mens Rea) XI. Reform criminal by developing skills in prison to transform them into productive citizens ii. Contractual Duty (nursing home during hurricane Katrina) iv. and its connecting link. which the law prohibits X. Statutory Rape Strict Liability (no intent) . Criminals are able to conform behavior to societal norms upon release VII. Strict Liability a. Distinction between the mental component of Actus Reus and Mens Rea a. Formal familial relationship (husband-wife : parent-child) ii. It must be voluntary ii. Imprison criminal to protect society from harm ii. Requisite Criminal intent to prove crime i. Possession 1. Act is not an act if it is done unconsciously c. b. Assume role of caregiver (other people assume you got it) v. Expressing the fact that this conduct results in a certain proscribed harm b. A few crimes that require no Mens Rea 1. Omission 1. What “principle” of criminal law does it reflect i. harm. What is the essential ingredient of the criminal act i. Physical/external part of the crime VIII. Expressing the voluntary physical movement in the sense of conduct b. Duty comes from: i. How is this concept defined i. Interpreted as the comprehensive notion of act.
Elemental a. Transferred Intent 1. Purpose and knowledge c. attempt. Increased penalties 4. Intent is the purpose to produce a result 3. Specific a. Motive is motivation i. Specific Intent 1. Premeditated murder. Defenses . Motive can prove intent 2. not to a specific person 2. The law prohibits one from causing harm to a person. If you are charged with a crime that requires maliciousness and you do something malicious then you are guilty whether the result was what you wanted to happen or not. Culpability a. is to distinguish between inadvertent acts and acts performed with a guilty mind f. Mens rea produces the prohibitive result d. Common law concept of “malice” 1. Elemental meaning 1. Any offense that adds with “intent to” adds specific intent e. All specific intent offenses will always have two mens rea elements b. Proof of intent 1. c. The defined mental state just has to relate to any action if prohibitive result occurs b. Mens rea does not have to produce the act c. Relationship between mens rea and prohibited result i. Miscellaneous introductory issues i. Common law concept of “intent” 1. Specific Intent 1. Purpose with another event or knowledge of law/facts 3. false pretenses and embezzlement 5. Why it is a fundamental principle of criminal law i. Purpose of mens rea i. Law protects society not individuals iii. COMMON LAW MENS REA i. Why you do something b. Motive is not intent a. One category where we still follow this meaning of Mens Rea i. solicitation. Applies to: a. Felony murder 2. The term used in the law of today ii. forgery.b. General a. Culpability v. The defined mental state has to relate to producing the prohibitive result b. wicked iii. assault. General v. robbery and larceny. Intent is not presumed. General intent to do the act and specific intent to commit the crime 2. Mens rea produces only the act 2. it is inferred ii.
traffic regulations [legislatures don’t put mens rea in the statute] 1. Exception: Statutory Rape 4. ii.ii. or a harm of the same general nature. excuse or recognized mitigation Strict Liability 1. i. Replaces common law distinction between general and specific crimes ii. Efficiency for prosecution b. Forbid and prevent conduct that unjustifiably and inexcusably inflicts or threatens substantial harm to individual or public interests 2. Voluntary intoxication b. AND 2. Greater ability to foresee consequences. Distinguish and incapacitate truly evil people . even when the employer/supervisor was not involved in the conduct in question c. b. Generally involve conduct not morally wrongful – malum prohibitum conduct. but π must voluntarily perform the act 2. mistake has to be honest and reasonable c. a. Statutes may be unconstitutional when it affects specific constitutional rights v. Deter crime a. iii. Voluntary and Deliberate 2. Dressler Example: a. “Should have known” Principle a. Argument for strict liability a. Malicious Intent (Wicked and Depraved Heart) 1. No mens rea is required. Generally lesser penalties a. mistake has to be honest 2. iv. Are not necessary or effective in protecting the public from unsafe products or environmental pollution b. Generally consists of regulatory or mala prohibita offenses with low penalties 3. Often strict liability statutes impose vicarious liability. Argument against strict liability a. Forces self-monitoring 4. the more the law considers the act as reckless 3. Little penalty – usually minor fine Mistakes and General /Specific Intent MPC says if mistake nullifies element then you are left with whatever is left Common Law 1. Public Welfare Offenses – (enacted by legislatures) pure food and drug laws. I have specific intent to blow-up wife on plane but I have general intent to kill everyone else when that plane crashes even though they where not my specific targets. Absence of any justification. Purposes 1. 2. Specific intent. Actual intent to cause a particular harm that is produced. MODEL PENAL CODE – MENS REA i. General intent. Unreasonable mistake of fact General Intent 1. This is conduct that we have made wrong usually thru legislation.
Attendant circumstances a. Mental States. Also satisfies the mental statute that requires willful conduct 3. Hope Conscious Object Type Purpose Probability: Irrelevant *note mostly applies to treason Knowledge Probability 100% Awareness Conscious disregard of substantial and unjustifiable risk (1) Failure to perceive substantial and unjustifiable risk (2) Recklessness Probability: Substantial Risk Negligence Probability: Substantial Risk • • Not Defined Awareness of practical certainty Conscious disregard of substantial and unjustifiable risk Failure to perceive substantial and unjustifiable risk Note that probability of the associated harm is higher for the MPC “knowledge” than for “purpose “Recklessness” is the default mental state for a crime/element unless otherwise specified Each mental state incorporates all lesser mental states. Inflicts or threatens substantial harm to individual or public interests 2.a. He must know that injury might result (if he knows that it is certain to result.applicable to each of the elements Conduct Attendant Circumstances Result Conscious Object. Requires that the actor take an unjustifiable risk and that he know of and consciously disregard that risk i. A person acts purposefully with respect to his conduct when it is his conscious object to engage in certain conduct or cause a certain result 2. A person acts recklessly when he consciously disregards a substantial or unjustifiable risk that circumstance exists or that a prohibited result will follow. which is any deviation from the standard of care a reasonable person would observe in the situation 1. Subject public control persons whose conduct indicates that they are disposes to commit crimes iii. Result a. A person acts knowingly with respect to the nature of his conduct when he is aware that his conduct is of that nature or that certain circumstances exist. Belief. Elements 1. Knowingly a. if crime requires “recklessness” but the criminal had “knowledge”. he acts knowingly). Purposefully a. Conduct a. NOTE: this is different from negligence in torts. even if a greater crime was intended Some states define “willfulness” as “knowledge” plus “awareness of illegality” • • • (1) Conscious disregard of risk= “a gross deviation from the standard of conduct that a law-abiding person would observe in the actor’s situation (2) Failure to perceive a risk= “a gross deviation from the standard of care that a reasonable person would observe in the actor’s situation. the ∆ was also guilty of recklessness Mistake of fact can decrease the penalty but never increase it. b. Recklessly a. Trying to achieve a purpose Awareness Not Defined Awareness. Harm done iv. Surrounding aspects that make it a crime 3. He acts knowingly with respect to the result of his conduct when he knows that his conduct will necessarily or very likely cause such a result c. b. and this disregard constitutes a gross deviation from the standard of care that a reasonable person would exercise in the situation. .
Implied Intent to Kill i. Must show ∆ intended use of deadly weapon c.4. Planning activity 2. Elements 1. he cannot be convicted XIII. Common Law Elements of Provocation Test i. Element of knowledge may be satisfied by inference from the proof that a defendant deliberately closed his eyes to what otherwise would have been obvious to him a. Motive 3. considered the consequences b. 1. How a D ends up with a degree of murder is usually decided by his mens rea b/c the crime is more reprehensible if done for certain reasons. the elements of murder must be met before you can mitigate down to manslaughter for heat of passion or other mitigating circumstances a. but also with substantial certainty 2. It combined the 1st Degree and 2nd degree buckets and just hung people. Heat of Passion killing: severe emotional disturbance provoked by another person which would lead a reasonable person to perform the act (can be any violent. Voluntary Manslaughter: usually involves intent to kill. Explosive/Destructive Device. Willful Blindness” Under MPC and CL i.e. Intent to kill: Expressed malice aforethought i. Common law put “willful blindness” under the definition of intent 1. OR ii. Use of Deadly Weapon 1. MURDER a. Now almost every state has degrees of murder. capable of reflection i. Lying in Wait. if one actually believed that the fact did not exist. intense or enthusiastic emotion—not necessarily rage or anger) b. actually reflected i. and such failure constitutes a substantial deviation from the standard of care that a reasonable person would exercise under the circumstances d. Common Law i. Willfulness: Intent to Kill 2. A person acts negligently when he fails to be aware of a substantial and unjustifiable risk that circumstances exist or a result will follow. MPC puts “willful blindness” under the definition of knowingly 1. Adequate Provocation . thought beforehand 3. With MALICE AFORETHOUGHT a. Knowingly is not just actual knowledge. Premeditation: cool mind. Commits act which has been dangerous potential that causes death 2. ii.e. Intent in common law means both purpose and knowledge of substantial certainty ii. Old School Common Law didn’t have degrees of murder. Generally: Item of substantial potential to kill 2. Evaluate 1. Automatically infers malice as deliberate 3. Torture. Intent to do Severe Bodily Harm: implied malice aforethought i. Deliberation: cool mind. Method of Killing ii. Everybody hates the cold blooded slow guy. Negligently a.sufficient to arouse a reasonable man to heat of passion .
mutual combat. Felony Murder (if the felony is not listed in the statute) 3. Trespass to Land not sufficient provocation. Reasonable man would not have cooled off (objective) iii. Exception: Suicide is malum in se. Limitations from Malum Prohibitum Crimes a. driving 45 mph in a 25 mph zone 4. Buckets of Murder . adultery. Death is direct result of unlawful excess i. Intent to kill with premeditation and deliberation 2. 1st Degree Murder (capital punishment possible) 1. 2 Degree Murder (capital punishment not possible) 1. Depraved heart/Reckless murder 4. but no penal sanctions if successful b/c there is not death of another (no actus reus) ii. ∆ did not cool off (subjective) 3. ∆ acts in heat of passion (subjective: actual provocation) 1. Lying in wait: concealment or ambush 4. Words are not enough unless informational words 2. Intent to kill without premeditation and deliberation 2. Note: Voluntary intoxication can never get murder down to manslaughter. wrongfully arrested. Intent to do Severe Bodily Harm iii. Malum Prohibitum Crimes: some jurisdictions find malum prohibitum + some limitations = involuntary manslaughter 1. Malum in Se Crimes: act can provide accountability for involuntary manslaughter 1. 5. Common Law sufficient provocation acts: battery. Felony murder 3. i. Unlawful Act: misdemeanor + unintended death/homicide i. discover adultery. Involuntary Manslaughter: mitigate up from innocent homicide or no crime with unlawful act or criminal negligent homicide (no malice) a. unless trespass to a dwelling with people 3. but it can negate 1st degree down to 2nd degree murder.e. etc. Death must be foreseeable or natural consequence of act (objective) b. Degrees of Murder i. Statutory Modifications a.1. ii. Torture or poisoning: pain endured over long time and intent to inflict such pain nd ii. violent attack.
1. Limitations of the felony murder rule i. Felony used for conviction must be independent from the acts that caused the murder iv. didn’t care Involuntary Manslaughter (No Intent) 2nd Degree Murder (Intent/Reckless) Felony Murder Premed/deliberate OR Special victims OR Special methods OR Special felonies (depends on state statute) 1st Degree Murder (Intent) Voluntary Manslaughter (Intent) Adequate provocation No cooling time Heat of Passion/Extreme Emotional Disturbance Imperfect Self . Limited to felonies that are inherently dangerous ii. Res Gestae: things done before and after crime which are so closely connected with crime that considered part of the crime itself. Foreseeability 1. Felony must be independent of killing 1. Martinez .Defense 3. United States v. Generally: i. Act performed with a short period of time and distance from felony or causal connection b/t death and felony such that the act was motivated or connected with the crime vi. Unintended death arising during felony with causal connection b. ∆ must be guilty of the underlying felony iii. Death must be a foreseeable result of the commission of felony v.Should have known better Knew better. Killing of a co-felon aka redline view 1. Felony Murder a. Implied malice aforethought (malice implied from the intent to commit the underlying felony) ii. Liability for murder cannot be based upon the death of a co-felon from resistance by the victim or police pursuit c. crime continues until felon reaches a point of safety.
Shopkeeper). not a foreseeable later felony the eventual murderer undertakes on his own. If a felon dies by his own hand or b/c of co-felons conduct when the felons are committing acts in furtherance of a dangerous felony. All ∆’s charged with arson and under RICO 3. luck differs. Causal connection requirements very by state c. iv. If you do something that may kill. On the other hand. and not merely malum prohibitum. The court treats this case like it is a felony murder case when it is really an arson case involving explosives that had felony murderlike provisions ii. An unintended homicide occurs during commission of an unlawful act that is not a felony ii. Gives criminals the ability to stop their crime so that no one will get hurt 6. Issue: 1. Death must be a foreseeable result of actions furthering the felony b. The trend is to abolish this type of manslaughter charge 7. Moral luck a. Sometimes requires misdemeanor to be malum in se. (natural & probable result) ii. Generally i. ∆’s driving around Chicago with bombs. the co-felons are held responsible for the death 2. Holding: 1. If a 3rd party kills co-felon (ie. 2. the court hits you harder if you actually do kill. punish people as a result of their actions (not what was in their heart) v. entire criminal system is consequentialist. Generally i. Court wants more peaceful felons 2. Requirements i. Purpose of felony murder rule 1. The death must be the foreseeable result of the felony a the co-felons are taking part in. Dicta: 1. Whether a co-felon can be sentenced under the felony murder rule? iii. Criminal Negligent Homicide: a. Restrictions a. one bomb went off in ∆’s (not Martinez) lap and he died 2. Your intention is same. A death directly related to the perpetration of the misdemeanor in a way that is reasonably foreseeable. Misdemeanor Manslaughter a. D is not liable c. b. Facts: 1. Consequentialism a. criminal negligent behavior = unintended death ii. D acts with reckless disregard for human life and human life is lost due to this reckless action .i.
1. Dumbass will treat them XIV. 2nd degree manslaughter 1. Terms . It is up to the states to have one if they want. it is foreseeable that Dr. If you injure a person. Violates the 8th amendment (cruel and unusual) 2. General Rules of Insanity and Trial i. There is no constitutional requirement to allow an insanity defense.e. Breaks the chain of proximate causation between ∆’s act and victim’s death 1. deaf) – Subjective Part c. Person dies because of this conduct 1. and iii. You evaluate the conduct. not the result ii. awareness of risk accompanied by disregard ii. Awareness or knowledge of risk d. Failure to perceive risk 8. The ∆’s conduct must be the cause-in-fact of the result in other words the result would not have occurred but for the ∆’s conduct b. blind. iii. It doesn’t matter that the method of death was unforeseen. The intervening action only becomes superseding if it is unforeseeable. INSANITY a. Criminal Negligent Homicide v. Consider the physical characteristics of person ( i. Common law “Year and a Day” Rule i. ∆ remains responsible for all natural and probable consequences of his actions iii. Death of victim must occur within one year and one day from the infliction of the injury or wound (this has been altered in many states) c. Superceding Factors i. Test i. You can’t Execute the insane…ever 1. Reasonable person would have been aware of risk. The Affirmative Defense is not Constitutionally Protected 1. manslaughter (2nd degree) i. Balancing Test i. b. High degree of Risk of severe bodily harm or death created by D’s conduct (objective standard) ii. Constitutionality i. Causation a. Recklessness absorbs causation. ii. English didn’t do it either because they believed it prevented the D from interjecting a last defense ii. Criminal negligent Manslaughter 1. Cause-in-fact i. Requires GROSS deviation in care from what a reasonable person would observe b.
Execution i. If a person was sane at the time of offense but becomes insane during captivity they cannot be executed iv. An insane person can be committed under a civil trial and be kept in the asylum forever…even for a small crime. Three phases where Insanity is important to criminal trial i. vi. 2nd part to determine if ∆ is insane 3. Bifurcated Trial a. Insane = legal term 2. You can spend more time in the asylum than you would have in jail. v. It does not matter that they are sane by the time of trial. they cannot go to trial. The retarded are not insane 1. iii. Insane at time of offense allows insanity defense (in most states) a. Insane at trial 1. After Trial 1. If a person is not sane at time of trial. 1st part to determine if ∆ is guilty b.1. Verdicts a. During Trial 1. Before Trial 1. the ∆ will still be committed to an institution b. For insanity defense. This makes insanity a dangerous defense. b. We don’t care if they agree but can’t kill them if they don’t know why. Guilty but mentally ill i. Unless D’s waiver of NGI defense is clearly unintelligent and involuntary c. When insanity might be used as affirmative defense [not constitutionally protected] iii. Ability to Decline Defense a. all of the elements of the crime must be proven ii. Insane at time of offense 1. Not guilty by reason of insanity i. Continuing Civil Confinement . The retarded might be able to get a diminished capacity defense but not they don’t fit under the mentally ill defenses. Judge can order more tests and send the ∆ to penal institution or state hospital to serve out sentence 2. Even though the ∆ is going to get off with not guilty by reason of insanity. As long as D is competent to stand trial a court may not sua sponte impose a not guilty by reason of insanity (NGI) defense on the D over D’s objection i. i. You can execute them. Scope of punishment a. Mental illness = psychological term ii. Procedural Issues 1. Must be able to appreciate why we are having them killed. An incompetent defendant violates due process a. Jury thinks the threshold is not met ii. Insane during captivity 1. Competency to stand trial is necessary [constitutionally protected] ii.
If you were put in civil confinement because you committed crime and were judged to have committed it because you were insane. Strangling a person when you think you are squeezing a grapefruit) OR b. not long term brooding iv. Pedophiles) . then the D is not guilty by reason of insanity a. (good luck) d. If D. you have to be set free. Knowing that an act is wrong but not appreciating why it is wrong shows a D is less culpable than if a D appreciates the wrongfulness of his actions. If mental defect robs the D of sufficient capacity to appreciate the wrongfulness of his conduct. Having illness or dangerousness alone isn’t enough. due to mental illness a. If he did know what he was doing but didn’t realize it was wrong (ie. A psychologist can’t tell if D really knew right from wrong. D has to establish more than mere “any incapacity” but does not have to establish “total incapacity. only that there was mental illness b. if it is determined you regained sanity. He couldn’t control his conduct even though he knew what he was doing and that it was wrong b. Mental illness + dangerousness (to self or others) = requirements for civil confinement 1. Old School – if a D doesn’t know what he does any more than a wild beast ii. Fending off invading enemy soldiers that are actually just innocent people). MPC Test (aka – ALI test) 1.” b. Recidivism and addiction do not in themselves justify a mental defect for acquittal b. ii. Does not know nature and quality of act he was doing (ie. iii. Problems i. Irresistible Impulse 1. 2. Wild Beast 1. The D has to be balls out crazy to fit into this test. Durham Test 1. Psychologists become the jury in finding the D culpable. D is not guilty when criminal act is product of mental illness a.i. v. M’Naughten Test 1. An abnormality manifesting itself in repeated criminal or anti-social activity is not necessarily a mental defect (ie. ii. Civil confinement means civil rules for burdens 1. MPC test clarifications a. 2. Usually used as a supplement to M’Naughten rule 2. insanity proven through preponderance of evidence iii. “Appreciates” i. Problems a. “Lack of sufficient capacity” i. Mental defects are just magic labels and introducing new labels can excuse psychopaths from their crimes even though nobody wants to. Generally focused on sudden impulse. If D is driven by such a defect of reason that: a. The Insanity “Tests” i.
a. the person believes strange things about the world that could support the overall picture of insanity. akin to an irresistible impulse. This burden shifts in levels and who it is put upon. Must offer something to bring the insanity argument into the mix at all. If diminished capacity is allowed. Washington i. An exception to the M’Naghten rule.c. This is because they believe that . i. Definition a. you have no choice. Burden of Production 1. 2. While Insanity is an affirmative defense. Diminished Capacity is more often used in jurisdictions that use the harsh M’Naughten standard because the court wants to find a way to see the D as less culpable. FEDs use a revised M’Naughten with Irresistable Impulse standard e. Not all jurisdictions allow the diminished capacity defense. Goes to the person’s volition. Burden of Persuasion 1. but must show your hand) ii. Psychiatric evidence i. they have to face trial like any other defendant 3. Some courts do not allow psychiatric evidence in diminished capacity part of trial (even if it was in NGI). b. Two versions of the rule a. The argument has to be genuine. Colorado i. Can be preponderance. reasonable doubt. not their cognition. ii. NOT QUITE INSANITY i. Burdens i. Partial evidence that the person would have thought that society would approve his actions. They actually get incensed by it. b. b. diminished capacity is a partial defense that knocks out mens rea requirement to drop the level of punishment i. it does not need to employ diminished capacity as a cushion b. or even clear and convincing. once they learn of the reason. If a jurisdiction does not allow diminished capacity and the defendant is not judged insane. Can be used to negate general intent but that is really hard to show. Not the same as the insanity defense. If you hear a voice. Burden of Proof 1. If the jurisdiction uses an easier to reach insanity test. A D can be excused if he lacks substantial capacity to conform his conduct to the requirements of law vi. the evidence used in a failed NGI defense to disprove mens rea. In fed it usually stays with D. (Not a heavy burden. On the other hand. Deific Decree 1. Enough that it could be considered iii. it’s a cop-out or blasphemous. 3. Usually used to negate specific intent. It’s a good way to lose a case for the ∆. Proving Diminished Capacity a. DIMINISHED CAPACITY 1. Juries don’t buy the deific decree defense. 2.
and therefore. XV. the D can’t try to bring it up later to introduce insanity evidence as an element buster. To allow a necessity defense the D must show: . Some basic defenses 1. I didn’t do it 2. Definition 1. If a D doesn’t bring NGI or diminished capacity at start of trial. When the commission of the proscribed act is justified. Alibis a. DEFENSES a. not “shrink sophistry” c. Its too late. Choice of evils defense – a balancing of harms a. but it was forgivable Necessity Self Defense Defense of Others Insanity Entrapment Duress b. When to bring it up i. but it was righteous EXCUSE Broke the law. but I should get less punishment than usual because I did it with mitigating circumstances 4. I did it.intent is shown through circumstances of crime. Introduction to Defenses & Justifications i. Necessity 1. Statutory defense a. Affirmative Defense AFFIRMITIVE DEFENSES I did it but escape liability completely for some reason JUSTIFICATION Broke the law. not appropriate for criminal sanctions ii.JUSTIFICATIONS i. Imperfect Defense a. The statute under which I am charged does not apply to my activity 3.
Generally a. They reasonably anticipated a direct causal relationship between their conduct and avoiding the harm iv. the threat is immediate b. and 2. Necessity might be able to be used as a justification for direct civil disobedience. MPC invalidation of necessity i. A person is justified in the use of force against an aggressor when: i.i. They were forced with a choice of evils and chose the lesser evil ii. Self Defense is subjective in that a jury must put themselves into the defender’s place as far as size. b. Alter Ego (Minority rule) . Self Defense can excuse a wrongful act (b/c of mistake) or justify an action that would normally be unlawful – The result is the same 2. there is a reasonable belief that force is needed. but… ii. abilities and temperament. Subjective/Objective…mostly subjective a. Civil Disobedience and Necessity i. Federal Law i. They had no viable legal alternatives to breaking the law v. ie. it is questionable that there is ever a necessity defense that is not provided by statute 3. Legislative Intent i. Test a. this was limited to the protection of: 1. relatives. iii. gender. SELF DEFENSE 1. Necessity and legality a. MPC: you can aide a stranger in peril if: 1. Under MPC. The legislature has not acted to preclude the defense by a clear and deliberate choice regarding the values of the action 2. Random Stuff about Necessity a. therefore it is never a necessity to use marijuana medically b. b. household members ii. gender. a necessity defense is invalidated if the situation that brings about the necessity is caused by negligence. There is never a necessity justification for indirect civil disobedience iii.The relationship must be necessary in order to come to the aid of a 3rd party i. At common law. There is never a necessity defense when the legislature has already made a determination of values 1. They acted to prevent imminent harm iii. Self Defense is objective in that the jury must decide what a reasonable person of that size. To defend himself or another against an aggressor’s imminent use of unlawful force. Under Fed Law. Congress has said marijuana is not fit for medical use. etc. And there is no opportunity to retreat 3. It reasonably appears to him that that the use of force is necessary ii. Defense of Others a. and/or 2. would do in the same situation 4.
The defense only applies inside the dwelling and not against people fleeing in your yard with your stuff ii. Modern Trend 1. Escalation trade off 1. Definition i. Fred is justified. There is no castle doctrine self defense justification when the person defended against also lives in the house of the defender 2. You do not have a right of self defense against an arresting officer i. then there is no privilege for ∆ 5. so the duty to retreat is not present when defending others. Barney is not justified in his escalation of force. There is an unreasonable fear of imminent threat OR ii. If force used is an escalation in the level of force in the conflict its not perfect self defense anymore. Generally 1. Unless: a. ∆ puts themselves in the shoes of the person they are defending ii. If Fred attacks Barney with his fists and Barney retaliates with a hitting Fred with a rock. Cohabitant a. Defense of others and retreat: i. i. Spring guns a. There is no justification for the use of spring guns to defend your home unless the incredibly rare event occurs that you are in imminent danger when the spring gun shoots the intruder iii. Castle Doctrine i. 7. Self Defense can only be invoked if there is no opportunity to retreat to safety and avoid the use of force b. Even if the arrest is unlawful 1. If the person they are defending did not have the defense of s/d. There is reasonable threat but retaliatory force is unreasonable AND . Self Defense and Arrest a. Proportionality a. If Fred fends off Barney with a his own rock attack. c. Its hard to retreat and still defend another person. IMPERFECT SELF DEFENSE a. a. Exception 1. The arresting officer is making an unlawful arrest and is putting your life in danger iv. There is no duty to retreat when you are in your home or dwelling and the force used in self defense can be lethal 2. The use of force must be proportional to the imminent threat b. Some jurisdictions are expanding the castle doctrine to allow lethal force whenever a person feels reasonably threatened 6. Duty to Retreat a.i.
D kills someone out of this fear. Citizens Arrest a. Justifiable for the police to use force to prevent a crime. Original CL rule – deadly force may be used if necessary to prevent a felony.Arson. Even Police cannot kill a fleeing felon unless there are others at risk or the felon was a violent offender 3. Offense committed in defendant’s presence b.iii. Deadly force: justified when there is a reasonable belief that you are trying to prevent a. b. When allowed. Many jurisdictions do not allow this defense at all ii.Violent entry/attack on your person 3. Reasonable belief this is the right person d. How it works i. b. 2. b. this defense can lower murder to voluntary manslaughter c. Defense of Property a. Deadly force may never be used to prevent a misdemeanor may only be used to try to prevent a felony. Use of force must only be the reasonable amount to keep person from fleeing . LAW ENFORCEMENT DEFENSE DEFENSE OF CRIME PREVENTION 1. Fleeing Felon Rule a. Only reasonable if victim is using deadly force. At common law.COMMON LAW:: force could not be used to regain possession of property wrongfully taken. Regain property a. b. or c. Felony c. unless person is in immediate pursuit b. Since the MPC cares about mental states. DEFENSE OF PROPERTY 1. a. MPC: allows reasonable force when regaining property in certain instances vi.Non-deadly force: justified in use when inside one’s dwelling. MPC doesn’t care about Imperfect Self Defense i. v. A felony. if the reason is to prevent another’s entry onto their premises/property by trespass or if the entrant is going to attach. a citizen could kill a fleeing felon…not anymore b. an imperfect self defense case automatically implies that there was no malice so its down to manslaughter anyway. Note you can not use deadly force when only protecting your property and not your person 2.
Duress for aggravated prisoner escape a. Threatening w/ imminent death or severe bodily harm c. The person cannot be held responsible for the lesser offense i. Duress never allows an intentional killing. No reasonable opportunity to escape threatened harm 4. Duress Test (elements vary by state – but in general) a. Where a reasonable person would feel compelled to commit the crime d. EXCUSE i. Random stuff about Duress a. Immediacy i. DURESS (aka Compulsion) 1. State v Irons (don’t get dry heaved) i. Well grounded fear that threat will be carried out if crime isn’t committed c. no time to resort to courts 4. Definition a. Can be tricky. ii. A person is faced with a choice between suffering death or serious bodily injury and committing some lesser crime. Prisoner immediately reports his situation when he is safe ii. Immediate threat of death or severe bodily harm b. others require that all are met 5. There needs to be direct causation between illegal conduct and avoiding harm g. The defendant must not willingly put himself in the situation e. Compulsion or Coercion by another.c. who is b. prisoner faced with threat of imminent death or severe bodily harm 2. If you are under duress. no time to complain to authorities or complaints are futile 3. you cannot be charged with felony murder 2. Some courts weigh the Pichon elements in aggregate. The D (without putting himself at risk) must not have a reasonable legal alternative to violating the law f. D must not maintain illegal conduct any longer than necessary to avoid harm 3. Fed Duress Test a. Difference B/T Duress and Necessity . Pichon Test (on Dru’s test) 1. escape doesn’t involve violence 5. Just because a threat is certain does not mean it is imminent b.
ENTRAPMENT 1. Protects Unwary innocent. Focus on the actor – was he induced into criminal act? Did the police instigate the action themselves. Question for the judge .) i. Necessity (on test) DURESS Takes 2 or more parties Invalidates mens rea Conduct is done to avoid to self from harm from human NECESSITY Only takes one person Invalidates Actus Reus Conduct is done in the interest of the general welfare c. Subjective Test (Majority view & S. would the D commit criminal act 2. Question for the jury c. But for the police conduct. Police Action Focus ii. Supreme Court allows both. Claiming you will get hurt if you testify is no defense.Duress v. usually they get same result. Do not look at ∆’s subjective relevant acts 5. The court can hold you in contempt and punish you if you don’t testify at criminal trial. Two Tests – i. 2. Allows ∆’s prior bad acts – was there a predisposition to do act beforehand? 3. If police used outrageous conduct its entrapment 3. ii. but not unwary criminal 1. Objective Test (Minority View – 14 states and MPC) i. ii. Would police conduct induce a reasonable person to engage in the activity? 4.CT. but favors subjective test (so does Dru) b. Duress and Forced Testimony i. Punishes police outrageous conduct with purpose to deter bad conduct 1. but not always. Predisposition centered ii.
INTOXICATION S. Involuntary Intoxication – Any of these . The government can be punished for outrageous conduct while the defendant is still guilty because of outrageous conduct 5. says this is usually not an excuse/defense. Intoxication is not an excuse. Outrageous conduct defense? a. Can be used to rebut P’s argument of mens rea. Private Entrapment? a. OTHER DEFENSES i. Voluntary intoxication is not a defense to a general intent crime f. You are busted for doing it by agent. d. Law distinguishes between general intent and specific intent crimes e. Exclusionary Rules i. ENTRAPMENT BY THE NUMBERS a. Voluntary Intoxication (MPC – Self Induced Intoxication) a. It negates spec. Entrapment Defense Use is declining 1. You do it. a.most jurisdictions will hold that voluntary intoxication is a defense if at time of offense D’s condition because of intoxication was so extreme that he lacked the specific intent required in the definition of the crime. voluntary intoxication can serve as a mens rea defense c. b. But. Specific intent offense . This defense does not usually work. Intoxication may negate the mens rea required in the definition of in the crime. Asking an undercover agent if something is legal or not. Entrapment Estoppel 1.2. d. Entrapment is an affirmative Defense 3. There is no private entrapment defense. The odds are against a D using the entrapment defense b. (Example of karate instructor who makes deal with fake Al Queda and then starts training interested wannabes) ii. therefore not proving all elements of the crime. The clearer the rule the less it is needed b/c nobody brings cases on either side when they know they are going to lose b. Testable Terms i. General i. 1. Why? a. It must be an under cover agent 4. Fruit of the poisonous tree . We entrap a person who knowingly entraps others a. Vicarious Entrapment 1. 2. He says it is.Police are smart and plan around their stings around entrapment rules so they don’t get in trouble c. intent. There is a separate due process defense of Outrageous Conduct but it almost never separate from the Entrapment Defense b.
C has a depraved and malignant heart towards Q i. The person ingested the intoxicant innocently b. or C killed Q there would be 1st degree murder ii. Mistake of Fact 1. INCHOATE CRIMES a. REQUIRES SPECIFIC INTENT 1. Specific intent crimes.any mistake.must be a reasonable mistake 2. Note: Defense also permitted if the intoxication causes ∆ to become insane. A specifically intends to kill Q b. d. Has the actus reus of attempt been carried out? (hard to test b/c court is confused) ii. If Q is not killed then only A gets attempted murder 5. No defense unless crime requires knowledge of some aspect of law other than the existence of the statute making it a crime a. You can’t intend to do something accidently 3. B specifically intends to do grave bodily harm to Q c. General intent crimes. Secondary i. Person taking a prescribed medication and has an unforeseeable response due to allergic reaction. Attempt to commit a negligent crime is illogical a. Defense if ∆ reasonability relied on an official interpretation of the law which was later declared invalid XVI. Requries specific intent for every element of the crime 2. Although the strict liability crime may not require intent itself. ATTEMPT i. Exceptions: i. SPECIFIC INTENT HYPO a. Intent to do what is actually done b. If A. . reasonable or unreasonable. Attempt to commit strict liability crime a. TEST 1. Primary i. Intent to do what D thought was being done 1. Primary v Secondary Intent a. If ∆ can satisfy insanity requirements the will be acquitted. B. If D subjectively believes that his actions will bring about the criminal result he can be charged with attempt even if his idea is wrong. Mistake of Law 1. Defense if statute not readily available ii. Was there specific intent to commit crime? (Very testable) 2. (acquitted on invol intox) ii. You can have specific intent to commit a strict liability crime and that is still attempt. 4. The specific intent to commit a crime and bring about certain consequences a. Defense permitted in specific and general intent crimes 3. Person forced to take the drug c. is a defense iii.a.
The specific intent is not there . Present ability to do crime i. Voodoo chant to kill someone) then the court will not consider that an attempt iii. Requires an overt act. MPC – if D subjectively believes completely absurd idea will bring about a crime (ie. Proximity Test (Common Law) (strictest test) i. 2. The acts of the ∆ create a conclusion that a crime is about to happen 1. An innocent bystander. Present ability does not have to be factually based. could tell what was about to happen. Elements a. If D subjectively believes the ability is present that is enough b. Specific intent to commit crime i. Overt Act Tests a. ii. Equivocality Test i. Overt Act (Actus reus): requires performance of act toward the crime’s commission 1. Determined under an objective test a. without knowledge of the events. you cannot use the ∆’s statements or confessions about what was left to be done iii. vi. Probable Distance Test (generally disregarded today) i. but the ∆ continued beyond this point. Note: in order to commit an attempt at Common law:. law-abiding citizen would have stopped. Taking a substantial step towards commission of a crime that is strongly corroborative of the actor’s criminal purpose. there was a much higher threshold to meet than there is with the MPC b. 2. iv. Substantial step that will culminate in committing criminal activity ii. Determined under subjective test a. Common Law Attempt 1. Easier than common law 2.2. therefore. Attempt and Assault – RANDOM 1. MPC Attempt 1. Substantial Step Test (MPC and current trend) (more lenient for prosecution) i. Emphasis: what is left to be done 1. The ∆ must have committed an act beyond mere preparation for the offense. Basically involves all the actus reas necessary for the crime except criminal result. Public Policy Rationale: provides an opportunity to intercede the crime at a point further from the harm c. This is a point at which it would be unlikely that the ∆ would voluntarily stop what they have already undertaken d. Very restrictive. ∆ reached a point where a normal. v. you can use ∆’s statements to corroborate that ∆ took substantial steps towards the commission of the intended crime iii. 1. You can’t assault someone with an unloaded weapon. Emphasis: what has already occurred 1. Its hard to get attempt at common law. The courts evaluate the act based on how close the ∆ came to completing the offense. Therefore.
i. a person suspected of buying stolen goods. a. ∆ is guilty of attempted rape. The police then obtain permission from A to use the goods to trap C. He has a problem with that. Factual impossibility is NOT a defense to attempt i.ii. or bulletproof glass stops the bullets – there is an assault because specific intent was present vii. he only failed because of a factual impossibility. If gun jams. Since ∆ had the apparent capacity to succeed. C buys them from B. ii. B steals goods from A. C is not guilty of receiving of receiving stolen goods. etc. However. Voodoo Doll 2. 2. Only covers those situations in which ∆’s set out to do things they mistakenly believe constitute crimes ii. specifically telling C that they are stolen. Most lawmakers think the laws are for deterrence and retribution. but it is not c. B is arrested and the goods are recovered. This a defense to the Crime. 2. Legal impossibility is a defense if those things that the ∆ does or intends to do would not actually be a crime i. ∆ fishes in a pond behind the neighbor’s house and believes it is illegal to fish there. Prof thinks real prevention is doing away with guns. ∆ is impotent but has intent to rape and seizes a female in furtherance of that intent a. Abandonment . Paying a fortune teller $500 to cast a spell on a person which is intended to kill them b. knives. Since the goods are no longer actually stolen (because they are being used with A’s permission). Examples – secondary intent 1. Impossibility a. Examples 1. Attempt as a crime serves no deterrent value and that prevention of crime is the modern policy goal. b/c C has engaged in the conduct that would constitute receipt of stolen property if the circumstances were as he believed them to be. viii. Therefore. Defenses to Liability for Attempt 1. Inherent impossibility are actions by the ∆ that are so unbelievable. C is guilty of attempt to receive stolen goods (in most jrds). but not to the attempt iii. Examples 1. Johnson’s Notes 1. ∆ is unable to accomplish what he/she has set out to accomplish b/c of unknown or intervening act. it is unreasonable to believe that a crime will be completed. B takes the goods to C and offers to sell them to him. Under police orders.
CONSPIRACY i. and ii. A natural and foreseeable consequence of the conspiracy. Must be motivated to abandon voluntarily a. Elements 1. An Agreement AND 2. Not motivated because its hard or there is circumstantial fear of getting caught b. Is committed in furtherance of the conspiracy 4. Intent to achieve the objective of the agreement a. Co-conspirators can be liable for crimes committed by other co-conspirators. ANY overt act furthering that intent a. Intent to engage in criminal activity AND 3. Not motivated to just put it off until later b. Liability for Co-Conspirators a. even if the crime was not part of the original conspiracy when the crime is: i. Conspiracy and Class of Person Charged 1. but conspiracy can be charged when there are subsequent big crimes developing from that conspiracy iii. Intent to enter into an agreement and 2. If you know that something is fishy and allow yourself to benefit from the fishiness. Conspiracy is not a lesser included offense 1. Common law: once all the elements of an attempt were made out. Can’t charge a woman with Mann act because it is supposd to protect woman from being sold into slavery iv. 2 or More People Exceptions: a. Many crimes can be absorbed by a bigger crime. Common law: had to be a bilateral agreement b. Common law: Husband and wife could not conspire because they were considered 1 unit 3. Mens Rea: 1. MPC: can be a unilateral agreement i. ∆ could not abandon the attempt ii. D must abandon effort and not complete attempt 2. There can be a lot of individual conspiracies that are part of a larger conspiracy. Group Liability a. MPC does not charge people with conspiracy if they are part of class that the statute was supposed to protect a. much easier than attempt ii. You can’t charge everyone as being part of the big . The any act provision is very easy to reach.i. you can have the intent to enter into the unlawful agreement that you did not have direct knowledge of v. Knowledge can become intent as a matter of law i. MPC: can abandon an attempt if: 1. If only one party intends to agree and that actor believes they are engaging in a conspiracy but the other actor does not. then the intending party can still be convicted of conspiracy 2. Actus Reus 1. An agreement b/t two or more people to commit an unlawful act or to accomplish a lawful purpose by unlawful means a.
There is one conspiracy such as one main drug deal c. b. vi. Abandonment is not a defense to conspiracy under common law b. if a 3rd party participates in the dueling or the adultery. A assists others in getting fraudulent bank loans. Venue/forum shopping a. Abandonment a. MPC i. I conspire to load drugs on boat = I am part of big drug smuggling conspiracy ii. 3rd party exception: there will be a conspiracy if an additional party is brought into the agreement who is not a necessary participant 1. adultery = 2. ii. i. Defenses 1. Links in a Chain – i. Lax rules for evidence 3.conspiracy unless the person is aware that they are part of a bigger operation. Spokes in the Wheel – i. S. Each are considered separate conspiracies. Too vague 2. There is no crime of conspiracy when underlying crime necessarily involves 2 or more folks. Common law i. Does not allow a Wharton’s rule defense against organized crime charges 2. i. i. Therefore.Ct. Abandonment is only defense to conspiracy if you attempt to thwart the crime iii. Misdemeanors elevated to felonies . Examples – dueling requires 2 parties. I conspire to cheat on real estate deals with my agent = I am not part of the agents giant real estate cheating scheme. Enables prosecution to make the case costly to defend or inconvenient 4. Does not use Wharton’s rule because it allows unilateral agreements c. Wharton’s Rule a. MPC i. Justice Jackson’s beef with conspiracy 1. Everyone is in furtherance of the conspiracy. there is a conspiracy b.
Guilt by association 3. d. RICO was one of the characters in the first Hollywood mafia movie. One or more related acts of racketeering necessary to establish a pattern ii. Play off each other vii. Continuing Unit ii. Common Purpose iii. Accessory before the fact – was on who aided or encouraged the commission of the felony w/o being actually or constructively present at the time of perpetration. Accessory after the fact – one who knowingly assisted the felon to escape or to avoid punishment XVII. Mass trials (Jackson part of the Nuremburg trials) a. CL recognizes four ways in which one could culpably participate in a felony a. Basically 1.5. Principle in the 2nd Degree – or abettor. was one actually or constructively present at the scene of the crime who aided or encouraged its commission w/o directly participating. Definition i. Identifiable Structure c. “Enterprise” i. Stephenson’s observations i. Acquired Interest iii. Investment of racketeering profits ii. ii. Aiding & Abetting 1. Must constitute a pattern 1. RICO a. Conducted enterprise via racketeering e. Mens Rea – must have intent for the crime a. c. Included mail fraud and other provisions related to Jimmy Hoffa inclusion of mail fraud . There have to be 2 or more racketeering acts in 10 years a. Cannot be convicted of being an accomplice unless the principle was convicted first 3. Other items to note i. Feeling of recurrence = some racketeering activity d. You can have wire fraud and conspiracy to commit wire fraud and have RICO b. If intent after the crime then not aiding & abetting – charged w/lesser crime such as accessory 2. Two or more “Predicate Acts” i. Racketeering is any act that violates another federal act 2. RICO is overbroad like vagrancy was iii. Principle in the 1st Degree – was the immediate perpetrator of the crime b.
AND 2. Third person exception: when a person gives an employee (high or low) a chattel for the master. larceny 2. At common law. ∆ can be charged in alternate courts. and opens the parcel or bale and takes part of the contents. Low employee= custody c.iv. Low employee has possession if borrowed item for personal use ii. Breaking Bale: If a carrier had lawful possession of a package or bale. LARCENY is: taking and carrying away of tangible personal property of another by trespass with intent to permanently (or for an unreasonable time) deprive the person of his interest in the property i. Master/Servant a. Can be charged with conspiracy to violate RICO vi. elements must prove: 1. intent to steal. Theft overview: i. Trespassory: larceny is a crime against possession. theft is a consolidation of the unlawful taking crimes of: 1. Steep penalties (up to 20 years) v. Crimes against Property a. In most jrd. theft itself was not a crime a person could be charged with iv. High employees = possession b. federal conspiracy charges with a 5 year max v. gives treble damages & attorneys fees if person does RICO against you XVIII. RICO can allow stuff to be seized as instrumentality in crime – this pisses mob bosses off that can get underlings to take the fall because they still lose their stuff vii. false pretenses ii. sometimes the pleading covers all 4 common law offenses listed above Larceny Embezzlement False Pretenses Activity Taking and asportation of property from possession of another person Conversion of property held pursuant to a trust agreement Obtaining title to property Method Without consent or consent obtained by fraud Use of property in a way inconsistent with terms of trust By consent induced by fraudulent misrepresentation Intent With intent to steal With intent to defraud With intent to defraud Title Title does not pass Title does not pass Title passes b. the employee has possession (rule is intended to protect innocent third parties) 2. Prosecution must notify the ∆ of what common law theft crime he is being charged with so that ∆ knows what to defend against 1. robbery 4. but not the contents. then . More civil suits then criminal 1. Breaking Bale and breaking bulk a. prosecution can amend for specific crime to conform with proof as long as it does not prejudice the ∆’s right to a fair trial 3. full set of elements of one of the theft crimes listed above iii. 1. but prosecution must choose one 2. embezzlement 3. not custody or ownership. Exceptions i.
but: i. If intention of ∆ is innocent then subsequent appropriation is not larceny i. If you KNOW of the mistake at the TIME OF THE TAKING. Note: if the person steals the entire package which they were entrusted with. even if he changes his mind and keeps it. the guilty of larceny for breaking bulk ii. rolling. the trespass continues so that if the ∆ develops the intent to steal at some point later. . then the larceny will be complete 5. 2. but with no felonious intent. real property. computer data. If you fraudulently sell to innocent agent – still taking. Breaking bulk: if a carries was entrusted with the transportation of goods by wagon (or UPS truck). No caption/taking if thief strikes or hits you which makes you drop your keys and then they come back later to pick them up. from their house. ii. car. Transaction in owner’s presence a. thing in action. iii. bonds. then only embezzlement (not larceny) b. Stocks. you must also have the INTENT TO STEAL in order to have larceny 7. money. Driving. When ∆ takes property fraudulently. b. the embezzlement 3. Larceny by trick a. Carrying away (“asportation”) 1. Taking ( “caption”) 1. If stole the whole vehicle. If he took some of the packages contained within. Owner retains constructive possession and larceny has been committed b. Even if takes the property with the intent to restore it is not larceny. Personal Property 1. If the owner delivers property to the ∆ as part of a transaction which the owner intends to be completed in his presence. If owner mislays property or loses property retains constructive possession of it. so could be guilty of larceny i. leading 3. computer program. One obtains lawful possession of owner’s property (but not title) by fraud or deceit and with felonious intent i. yard. The finder commits larceny only if he has a clue of ownership and the intent to deprive. iv. Continuing trespass a. the ∆ receives only custody and the owner retains constructive possession 4. Some jurisdictions have higher penalties for taking from the person vs. Intent must form prior to lawful possession 6. Mislaid or lost property a. he has possession of the wagon and the goods. 2. Mistaken delivery a. intellectual property (this did not count at CL).there is trespass to constructive possession of the goods inside. Can be tipping over a barrel to pour something out. riding. i.
Common law: cannot embezzle from self or co-owner (spouse) 2. intent to convert after lawful possession is gained 2. intangibly property (anything of value and movable) iv. Of Another 1. etc v. Force i. Must not be slight. Subsequent chase 1. Within the area that they could have prevented the taking 2. Entrusted: property committed r surrendered to ∆ with confidence regarding his care. Taken from person or presence a. Elements: Larceny + the following 1. The apprehension of the victim is judged subjectively c. Intimidation i. Common law: wasn’t force b/c was subsequent to the taking 2. or ii. more than just ‘carrying away’ must convert to own use iii. Extortion i. or Force causing fear of intimidation a. threats need to involve immediate or physical harm . tangible property. Common law: consisted of the corrupt collection of an unlawful fee by an officer under color of his office ii. Aggravated Robbery i. Fraudulent: intent to steal ii. corp.c. Threats must induce the relinquishment of the property iii. joint tenancy.fraudulent conversion of personal property of another by one who is already it lawful possession of it or entrusted with it i. partnership.obtaining property from another by means of threat a.blackmail 1. Conversion of: requires some affirmative act which is in direct conflict or grossly antagonistic with the rights of the owner OR outside the scope of bailee’s job or duty 1. Use of a deadly weapon e. Robbery: felonious taking of personal property in possession of another from his person or immediate presence and against his will. accomplished by force or fear i. Embezzlement. Can be accomplish by drugs or alcohol overcoming the person if encouraged or poisoned by ∆ iii. By one who is already in Lawful Possession of it or entrusted with it 1. Personal property 1. Within his/her control or reach b. Inflicting SBH or death. definition. and 2. Must be immediate harm to the actual victim or someone in the presence of the act ii. Modern Definition. use or disposal d. Today: can embezzle from co-owner. Today might be considered force b. Violence. Intimidation. Common law: ∆ had to have been entrusted with the property by or for the owner (fiduciary relationship) a. but requires a struggle ii.
and ∆ knows his representation to be false and intends to defraud the victim . Which causes the victim. To pass title to. False Pretenses i. False representation of a material present or past fact. His property to the wrongdoer.b. v. ii. iv. property need not be in victim’s presence f. iii.