Fair Warning Retroactive Criminalization & Vagueness

Fair Warning: 1. 2. Prohibition against Retroactive Criminalization A prohibition against Vagueness

Violations of Due Process: Retroactive Criminalization
Vagueness: • Unfair Notice, OR • Inadequate Guidelines

Fair Warning Statutory Construction Problems
Felony Murder Issues: Whether there is Murder in 2nd Degree – is Fel. Murder 2 available under statute?
Whether crimes expressed are the only crimes available for felony murder? Whether a felony non-expressed is qualifying predicate felony for M2? • Majority – only inherently dangerous felonies  Option 1: look at felony in the abstract  Option 2: look at felony in the circumstances in which crime was committed • Minority – all common law felonies not expressed quality • i.e. => where we would put gun possession? Inherently dangerous? If no M2 possible, or if felony doesn’t qualify, likely Unlawful Act Manslaughter…

Actus Reus
Elements:
1. Voluntary Conduct 1. Act 2. Omission to Act 3. Vol/Invol => last act is what is considered for vol. Production of a Stated Result Surrounding Circumstances
Voluntary Conduct
Act = Any bodily movement

Omission to Act

2. 3.

Exceptions: bodily movements that do not qualify for liability

Elements:

Conduct which is not the product of own volition

Duty to Act, AND

Reflexive or Convulsive Act (i.e. seizure)

D has capacity, means, and ability to act, AND

Conduct performed while unconscious or asleep

Omission to act is the cause of a particular result

Actus Reus (contd…) Omission to Act (never a crime)
Elements:
1. Volunary Act, AND 1. Voluntary Act 2. Omission to Act if Duty D has capacity, means, and ability to act, AND Omission to act is the cause of a particular result

2. 3.

Legal Duty to Act • Statute • Contract (employee) • Relationship b/t the Parties • Voluntary Assuming Duty • D Created Peril • D is landowner • Duty between Parties

Only Types of Crimes of Liable by Omission: 1. Battery

2.
3. 4.

Homicide
Arson Any other crime that provides a legal duty to act

Actus Reus (contd…) Voluntary Act
Elements:
1. Consciously willed by D 2. Even if D doesn’t want to engage in the action 3. Including Habits • • Which is incidental to the lawful purpose of returning Had it for enough time for him to have terminated his/her possession

Possession:
• An act if:
• • A possessor knowingly procured, OR Knows he/she has it

Exceptions:
1. Conduct which is not the product of your own volition Reflexive or Convulsive Act Conduct performed while unconscious or asleep

2. 3.

Mental State of Crime Mens Rea
Mens Rea (3): - “Guilty Mind” (feeling of guilt is not required)
1. 2. 3. Negative Mens Rea – lack of justification or excuse, AND Affirmative Mens Rea – mental attitude of D towards to actus reus of offense, AND (possibly) Special Mens Rea – special additional mental requisite over & above, same as Specific Intent

Model Penal Code Intents:
Purpose • Ds conscious objective to engage in conduct to create a result Knowledge • D acts knowing that his conduct will necessarily or very likely to create result • If knowledge is required and only high probability that crime will occur is satisfied unless D honestly believes possibility is not a reality Recklessness o D consciously disregards a substantial or unjustified risk that result will follow, and this disregard is a gross deviation from the standard of care that a reasonable person would exercise o D must know the risk he is taking:  Failure to become aware  Substantial unjustified risk Negligence • D fails to be aware of substantial and unjustified risk that a result will follow, and this failure is a substantial deviation from the standard of care that a reasonable person would follow – greater culpability than tort

Common Law Mental States:
1. Specific Intent (intent over and above) • Qualify for additional defenses not available • Crimes: 1st degree murder, assault, larceny, embezzlement, false pretenses, robbery, burglary, forgery Malice (NOT open to specific intent defenses) • Very few crimes that qualify • Murder, Arson – possibly (mayhem, malicious prosecution) • Cunningham – allowed recklessness (pulling gas, but prob. not right) General Intent – • Intent to engage in the actus reus of the crime • Examples – Rape & Battery (some of many) Strict Liability - special additional mental requisite over & above • Administrative, Regulatory, or Morality category crimes • Mistakes of Fact – negates intention • Consent of Victim – goes to intention

2.

3. 4.

Concurrence Mens Rea & Actus Reus
Mens Rea and Actus Reus Must:
1. Must relate to, AND 2. Must be the cause of the Ds conduct Mismatching Mens Rea & Actus Reus:
1. 2. 3. 4. Mens Rea for offense but commit accident/mistake when have the proper mens rea Recklessness for act but commit other act = will not concur Don’t have mens rea for the offense, but the offense may apply Knowing whether RECKLESSNESS is defined through MPC or if it is defined how MPC defines

Inappropriateness: • Ds mental state and his voluntary conduct may be so far apart that no conviction of actus reus offense is possible • D has the mens rea for an offense but, through accident or mistake commits the actus reus of offense which differs only in degree, age category, identity etc. from the offense for which he has the appropriate mens rea • Transferred Intent • Mens rea for more serious offense but committed lesser offense • Cant be convicted of the greater crime that you didn’t in fact commit • Can be convicted either a lesser offense or the attempt to commit the greater offense • Prosecution usually goes with crimes that holds the strongest penalty • Intent to commit a lesser crime but committed a greater crime • REMEMBER THIS BELOW: • Common law view – guilty of the greater offense • Theory when engaged in conduct with intent to create lesser harm took the risk that things would turn out worse than had expected • Model Penal Code – might be appropriate to charge for lesser offense D does not have the mens rea appropriate to the offense charged or any closely related offense but perhaps intends to commit an act generally regarded as immoral

Transferred Intent:
• Define: D has intent to commit crime one person but mistakenly commit crime against another – the intent of the first will transfer to second When occurs = always 2 crimes, attempt and result

Inchoate Offenses: ATTEMPT
Elements:
1. 2. Specific Intent, AND Substantial step beyond mere preparation in the direction of the commission of the crime

Actus Reus:
• Must take a step BEYOND mere preparation

Mens Rea (min suf.):
Common Law: • Must take a step BEYOND mere preparation

Model Penal Code: • Purpose or Knowledge

Notes:

Inchoate Offenses:
Accomplice (Parties to the Crime)
Elements:
“Acts with the purpose of promoting or facilitating the commission of the substantive offense for which he is charged as an accomplice”
Liability: a. Accomplice is liable for “natural or probable” consequences of the crime he advised, aided or abetted (even though the consequences was not intended) b. Accomplice is not liable for crimes which are the outcome of the total/substantial departure from his counsel, agreement, plan, etc… c. Voluntary withdrawal can insulate D from liability, but not if withdrawing because of police intervention, etc. i. D must withdraw for noble reasons and take affirmative steps to try and stop crime ii. D must abandon plan before chain becomes unstoppable (i.e. no voluntary withdrawal once the fire has been started or bank robbery has begun) d. If trying to trap someone, he is not accomplice

Actus Reus:
• Principle in the First Degree a. Commits actus reus with his own hand or innocent agent who acts in concert with the principle perpetrators (not the accomplice) Principle in the Second Degree a. Actual or constructive presence at the scene of the crime b. Does not commit the actus reus of the crime c. Aids or abets the crime d. Same liability as the first principle e. Could be convicted as the second principle even if the first principle is acquitted (but can not be higher) Accessory before the fact a. Counsels, encourages, aides, abets but is not actually or constructively present at the time or place of the crime b. Specificity of crime c. Helps in the planning of the crime d. Can incite felon to be reckless – manslaughter e. Treated like the second degree principle as far as liability Feigned Accomplice – not, no mens rea to engage in criminal conduct

Mens Rea (min suf.):
Common Law:
• • Must charge the person as principal or accessory according to the facts and on an indictment charging a person as principle “the enterprise & common design” – MPC Purpose for (1) aiding and (2) abetting conduct • Majority – Need Purpose (intentionally pushing crime) • Minority: Knowledge attitude to object crime Team agrees to common design, must be in design for liability

a.

Model Penal Code:
S. 2.04 A person is an accomplice of another person in commission of crime if: a. With purpose of promoting or facilitating the commission of the crime, he: 1. Commanded, requested, encouraged or provoked such other persons to commit; or 2. Aided, agreed to aid or attempted to aid such other person in planning or committing it; or 3. Having a legal duty to prevent the crime, failed to make proper effort to do so; or b. Acting with knowledge that such other person was committing or had the purpose of committing the crime, he knowingly, substantially facilitaed its commission; or c. His behavior is expressly declared by law to establish his complicity

b.

c.

Notes: Principle in the First Degree Principle in the Second Degree Liability Issues Aid, Accessory, Abet MPC 2.04 – Purpose, Knowingly Liable for Crime of Principal!

Aid – (a) helping – does not have to actually help (b) enough if made more likely to be successful (c) felon does not have to know he is being aided (the principal DOES NOT NEED TO KNOW!!! – can still be aiding Judge Talley ex.) Accessory after the fact: (a) assists, relieves, comforts, or shelters the felon by hiding him after the crime is committed (b) knows the offense was committed (c) punished less severely (d) must act with intent to hinder the arrest of the felon (e) not held to the same liability as the first degree principle (f) obstructer of justice Abet – (a) inciting or encouraging (b) communication must go through, otherwise no encouragement; must be made known (c) defendant must have intent to abet, there is not abetting by accident (principal needs to know that you’re encouraging)

Sex Crimes : Common Law Rape (c.l. felony)
Elements:
1. Unlawful vaginal sexual intercourse (mpc recklessness sufficient – not husband/wife) Engaged in by a male person with a female person By force (or imminent threat of force), AND

Actus Reus:
Voluntary Conduct • Vaginal intercourse (knowledge, maybe reckless – if fact about marriage) • By FORCE (knowledge) Surrounding Circumstances • Male w/ female (knowledge) • Without consent (reckless) • H/R belief by D that V… • Absence of marital relationship (knowledge, possibly reckless [divorce cases])
Lack of Effective Consent 1. Intercourse by Force 1. Old Rule – death before dishonor 2. Majority – Reasonable Resistance 3. Minority – No resistance requirement 4. IMPLIED FORCE – will not suffice normally 2. Intercourse Accomplished by Threat 3. Woman Incapable of Consenting (Knowledge but Recklessness will do) 1. D person of authority threatening to institutionalize a child 2. Police officers – sex or arrest as prostitute 4. Consent by Fraud a. Fraud as to whether act constitutes sexual intercourse b. Fraud as to whether D is Vs husband c. Other Fraud - psychological

Mens Rea (min suf.):
Common Law:

General Intent

2. 3.

Model Penal Code: • • • Crim. Negligence Except: Knowledge of Unlawfulness Consent – recklessness

4.
5.

Without her consent, AND
Not the victim’s husband

Notes: •Penetration Sufficient •Absence of Marital Relationship •Lack of Effective Consent •MD Statutory •Create degrees •Male or female •Resistance •Rape Trauma as evidence •Rape Shield – only past history for that D

Issue of CONSENT: • Without Consent – Normally Recklessness • Minority : (morgan) D must have intended to have non-consensual (K/P) • Honest but unreasonable belief is accepted • • Majority: Minimum sufficient Reckless For D to get off, must have BOTH honest AND reasonable belief

Sex Crimes : Statutory Rape (felony or misdemeanor)
Elements:
1.
2. 3.

Actus Reus:
• Voluntary Conduct • Vaginal intercourse (knowledge)
Surrounding Circumstances • Male/female • Age violation • (generally strict, but maybe reckless)

Mens Rea (min suf.):
Common Law:
• STRICT LIABILITY

Unlawful vaginal sexual intercourse
Engaged in by a male person with a female person Female is below a certain age set by statute (anywhere from 10-18, 14-16)

Model Penal Code:

STRICT LIABILITY

Notes: •Penetration Sufficient •Absence of Marital Relationship •Lack of Effective Consent


Victim Below Age of Consent • Even if V consents – age negates the consent Mistake as to Age • Generally, no mistake to age permitted Generally 4 year difference included

Sex Crimes : Bigamy (statutory – felony or misd.)
Elements:
1.
2.

Actus Reus:
Voluntary • Marriage Ceremony – P/K for ceremony • Mistake must be H & R to get off • False understanding that actually getting married
Surrounding • Married to another (surrounding circum) • Some: strict liability (no H/R) • Others: statute not strict liability • Exception: • 5/7 no spouse then ok (but 2nd marriage is not valid) – anywhere, maybe

Mens Rea (min suf.):
Common Law:
• n/a

Intentionally entering into a marriage (voluntary)
While being married to another (surrounding circumstance)

Model Penal Code:
• • • Intentionally getting married Recklessness & Above Likely not strict liability

Notes: •Mistake Defense •Only when D honestly and reasonably believes that he/she is not married – when jurisdiction allows •Mistake of Law – must be of concurrent law saying whether married

• • •

Many times comes up in cases of divorce Purported Marriage of Another Spouse by a Married Person Split of Authority – • Some – strict liability about being married to another • Mash – honest belief of spouse gone over 5/7 years and honest belief dead • Tolson – penalty is too severe allow negligence (added mens rea)

Crimes Against Property:
Abduction (stat. felony or misdemeanor)
Elements:
1. 2. 3. 4. 5. Taking Of underage girl From the custody Of the parents Without permission

Actus Reus:
• • Voluntary • Taking • Carrying away Surrounding • Of another

Mens Rea (min suf.):
Common Law: • Age – Strict liability • “Doing something wrong” assuming that act was just wrong strict liability • Recklessness/Negl.

Notes:

Crimes Against Property:
Common Law Larceny (c.l. felony)
Elements:
1. 2. 3. Trespassory taking Carrying away Of the personal, moveable property (worth more than 1 penny, tangible, not real property) Of another (without his consent) With the intent to permanently deprive that other thereof, AND

Actus Reus:
• • Voluntary • Trespassory taking • Carrying away Surrounding • Of another • Without consent
V => Servant – gets custody only • Subsequent misappropriation is c.l. larceny

Mens Rea (min suf.):
Common Law: • Specific intent – permanently deprive • P/K Model Penal Code: • Intent to “permanently” deprive that other there of • Without claim of right • Court may accept Recklessness

4. 5.

6.

Without Claim of Right

Notes:
•Actual Legal Possession •Custody •Bailment •Constructive Legal Possession •Wild Animals v. “Useful” Animals •Trespassory •Taking •Asportation •Real v. Personal Property •Co-Property (not “another”) •Innocent agent •Property for Sale – SPLIT

Mens Rea • “Intent to deprive” – economic or emotions deprevation • Permanently Deprive • Without Claim of Right • Defense = honest and reasonable mistake that property owned by D 1. Honestly believe property is Ds 2. Honestly but unreasonably believe property has been abandoned 3. Honestly but unreasonably believe that property is that of another that consented to the Ds taking of the property 1. WHETHER FOR SALE SPLIT Special Application: • Abandoned or Lost Property • Misdelivered Property • Container Issues

Crimes Against Property:
Common Law Larceny (c.l. felony) * Breaking Bulk Crime (crime by bailee, Carrier’s)
Elements:
1.
2. 3. •

Actus Reus:
• • • • • Having possession Misappropriating after breaking bulk Bulk v. Bale Bale = by package Bulk = by weight

Mens Rea (min suf.):
Common Law:
• Specific Intent

Bailee has possession
Bailee misappropriates after breaking bulk With intent to steal NON - FIDUCIARY

Model Penal Code:

Intent to steal

Note • Mens Rea • Intent to Steal – somewhat different than intent to deprive permanently • At the point of breaking bulk/bale, possession returns to bailee so cannot be embezzlement b/c possession is returned to bailee (legal fiction)

• V(owner) -> Bailee (non-fiduciary) – possession of “stuff” • Container • Misappropriates the package = larceny by bailee (st) • Breaks Package = breaking Bail – Carrier’s (c.l. felony) • No Package • Sold by Weight = c.l. larceny, breaking bulk • Sold by Bulk = larceny by bailee (misdemeanor)

Crimes Against Property:
Elements:

Common Law Larceny (c.l. felony) * Lost & Mislaid Property
Actus Reus:

Factors: 1. Possessory interest of the owner at the time the property is discovered 2. The finder’s state of mind when he retrieves, whether finder knows:

Mens Rea (min suf.):
Common Law: • Specific Intent

a.
b.

To whom the lost property belongs
Has reasonable ground to believe, from nature of property or the circumstances under which it is found, that if he deals honestly with it, the owner will appear or be ascertained • •

Finding property and subsequently either: • Returning • Misappropriating • Holding for ransom – criminal if only intend to return with reward or some other extension of right not owed otherwise

Model Penal Code:


Depends on whether the original taking is lawful If NOT – continuous trespass until act and mental state become continuous

Notes: 2 Requirements: 1. Finder must know or have reason to believe she can find out the identity of owner, AND 2. Finder must at moment she takes possession of the lost property have the intent necessary for larceny

Mens Rea • Intent to Steal – somewhat different than intent to deprive permanently 2 Different Crimes Potentially Involved: 1. Taking by Trespass 2. Misdelivered -

Crimes Against Property:
Common Law Larceny (c.l. felony) * Larceny by Trick (c.l. larceny)
Elements:
1. 2. 3. D obtains possession or custody (but NOT title) of a thing If title is NOT transferrable Obtained through use of false promise or misrepresentation • Promise or Misrepresentation can be past, future, or present and can be oral, written, or through silence (w/ duty to speak)

Actus Reus:
• Possession through promise or misrepresentation

Mens Rea (min suf.):
Common Law: • Specific Intent

Model Penal Code: • Obtaining property through INTENTIONAL use of misrepresentation Cannot be negligent or reckless

Notes:

Similar to False Pretenses but NO TRANSFER OF TITLE

Crimes Against Property:
Statutory Extensions of C.L. Larceny (new theft) * Embezzlement (strictly statutory, felony)
Elements:
1. 2. 3. 4. The fraudulent Conversion Of property Of another

Actus Reus:
• • • • • As defined by statute Conversion of property of another Person must be a fiduciary in lawful possession Conversion – acting in a way contrary to Vs ownership of the property If custody – subsequent conversion constitutes offense

Mens Rea (min suf.):
Common Law: • Specific Intent

Model Penal Code:

• •

5.
6.

By a person in lawful possession of that property and a fiduciary
With intent to defraud for a conversion

“If there is an embezzlement statute and D is a fiduciary of the kind indicated by the statue”

Obtaining property through INTENTIONAL use of misrepresentation Cannot be negligent or reckless Intent to Defraud/Steal – must come after possession and before possession is given

Notes:
• • • • • • Fiduciary Conversion Property – including securities Fraudulent Intent (no intent to restore) Claim of Right = allowable Earmarked Fund Issues


• •

3rd Party => Fiduciary => Misapp. Not to V = • Statutory Embezzlement (if statute and D is fid. covered)
Often deals with situations of employee and employer Five Situations to Distinguish: 1. Fraudulent Securing of Property = Custody = taking is criminal (larc by trick) 2. Receive as an employee for owner for use in the relationship = Custody = larceny 3. Employee receives for employer from 3rd party = Possession = embezzlement 4. Bailee w/ Possession of Container, sells container = embezzlement 5. Bailee w/ Container sells goods inside = larceny

Crimes Against Property:
Statutory Extensions of C.L. Larceny (new theft) * Larceny After Trust (statutory misdemeanor)
Elements: Actus Reus:
D is Fiduciary Property FROM V so D retains actual legal possession

Mens Rea (min suf.):
Common Law: • Not under CL

1. D is a Non-Servant, Fiduciary • • 2. Misappropriates after getting the property FROM V

Model Penal Code: • • Purpose/Knowledge Possibly Recklessness

Notes: • x

• V (owner) => Non-Servant Fiduciary = • Larceny After Trust (if statute) • Earmarked Fund Issues
• Options in Statutory Construction: • Sometimes under embezzlement • Sometimes under larceny extension

Crimes Against Property:
Statutory Extensions of C.L. Larceny (new theft) * False Pretenses (strictly statutory, likely felony)
Elements:
1. Obtaining title

Actus Reus:
• • • • Obtaining title Of property Using false statement V is defrauded

Mens Rea (min suf.):
Common Law: • n/a

2.
3.

To the property of another
By an intentional (or knowing) false statement of past or existing fact (not future) With intent to defraud the other

Model Penal Code: • Intentional or Knowing False Statement – know statement is false Intent to Defraud

4.

5.

V is actually defrauded


Notes:

• • •

Must have statute in jurisdiction Must be false at time of transfer Future promise won’t do

Misrepresentation • False representation concerning a matter of fact (not puffing) • Must relate to past or present facts – not a warranty • Must be the CAUSE of the loss of possession • V must act in reliance on the misrepresentation Intent to Defraud • Either D must know statement is false OR • V will have to have lose because of relying on the misrepresentation Related Crimes • Bad Checks, Abuse or Misuse of Credit Card

Crimes Against Property:
Receiving Stolen Goods (c.l. or stat. misdemeanor)
Elements:
Common Law: 1. Agree not to report crime for some something of value (compounding), OR 2. Receive and didn’t report a crime (misprision) – obligation to report

Actus Reus:
• • • Agree not to report Don’t report Receive

Mens Rea (min suf.):
Common Law: • Knowledge, Purpose

Model Penal Code: 1. If they know or reasonably believe the goods were probably stolen

Model Penal Code: • Purpose/Knowledge

Notes: - Seldom processed in modern times and most jurisdictions have not discussed

Crimes Against Property:
Relationship between V & D Issues
Different Factors:
Fiduciary • 3rd Party (gives to F for V) > Fiduciary (any) - Misappropriation > V • Statutory Extortion (if statute & F is covered in stature) • • V (gives to D for relationship purposes) > Servant – Misappropriation = • C.L. Larceny (Servant only retains custody, not possession) V (gives to D for purposes) > Non-Servant Fiduciary – Misappropriation = • Larceny After Trust (if statute – misdemeanor)

Breaking Bale Exceptions: Legal Fiction When the bailee breaks bail (opening the container, taking some contents with intent to steal) the breaking of the bale without permission terminates the bailment and sends constructive legal possession back to the bailor, which means that breaking bale w/o permission and takes some/all contents WITH an intent to steal, he is taking the contents from the constructive legal possession of the owner - GUILTY of c.l. larceny

Mistaken Identity - the transferred goods were mistaken so possession cannot transfer
Embezzlement : a statutory offense, and can only be committed by a fiduciary as defined in the statute • For Bazeley to be embezzlement - must (1) have a statute and (2) must gain the intent to steal AFTER he gains possession and BEFORE he gives possession to his master • In order for possession to have transferred to his master he must have placed the money in a place where he had a duty to place the goods

Non-Fiduciary • V > Bailee – if misappropriates THE THING or THE PACKAGE = • Larceny by Bailee (if statute – misdemeanor) • • V > Bailee – Container – if Bailee opens the container = “Carrier’s Case” = • “Breaking Bail” => C.L. Larceny (custody of inside) No Package • Sold by Weight – D takes some but not all = C.L. Larceny (breaking bulk – felony)

Sold by Bulk – D takes some of bulk = DEPENDS (think 3 apples, weight or count)? • If by count – Larceny by Bailee (misdemeanor) • If by weight – Breaking Bulk C.L. Larceny (felony probably)

Fiduciary - A person is a fiduciary when the business which he transacts or the money or property which he handles is not his own or for his own benefit but for the benefit of another person, as to whom he stands in a relation implying and necessitating great confidence and trust on the one part and a high degree of good faith on the other part • A bailee just for being a bailee is not necessarily by definition a fiduciary • Servant/Servicer - custody when under immediate direction and control by the "master" • Custody was developed to cover those holding "employers" goods - guest/host relationship as well

Exceptions & Notes for CL larceny Must have value Co-Owners – no larceny, co enjoyment Wild Animals - no ownership Specific Animals Animals that can be used for food (cows, ox, etc) - ARE subject to CL larceny Horses - are subject to larceny, military value Base Animals (no value - dogs, cats, monkeys, falcons) NOT subject to CL larceny Statutory Expansion Have increased the number of types of property that are subject to larceny (theft) - "…and anything of value"

Crimes Against Property: Robbery (c.l. felony)
Elements:
1. A taking

Actus Reus:
• • • • Taking Force/Intimidation Threat – immediate death or bodily harm (V, member of family, relative, person in presence) or V dwelling Intimidation – • Put V in fear or immediate bodily injury or death where injury must be party of same transaction AND • Intimidation by D against V or family or someone with V at time • Intimidation must be cause

Mens Rea (min suf.):
Common Law: • Specific Intent

2.
3.

Of personal property of another
From the other person or presence

4.
5.

By force or intimidation
With the intent to permanently deprive him of it

Model Penal Code: • Purpose/Knowledge

Notes: • • • • • • Presence – broad interpretation Victim Aware of the Taking Unconsciousness or Death • Split – depends if D did it Force/Intimidation Out of Possession Aggravated Robbery

• • • •

Force/Threats Necessary MD Code Revisions - MAJORITY • No asportation needed • May be allowed even without full taking because V fights off D Res Gestae Approach v • Force used by D to retain can be said to be same transaction as robbery Claim of Right SPLIT • Some – allow • Others – Jupiter case, no defense since violence used Snatching – resistence = robbery/

Crimes Against Property: C.L. Extortion (c.l. misdemeanor)
Elements:
1. Corrupt collection of an unlawful fee

Actus Reus:
• • Taking of money unlawfully By a public official

Mens Rea (min suf.):
Common Law: • General Intent

2.
3.

By an officer under the color of office
Where: a. No fee is due, OR b. Not so large a fee due OR c. The fee is not yet due (not voluntary on Vs part)

Model Penal Code: • Purpose/Knowledge

Notes: • Only committed by public official

Crimes Against Property: Statutory Extortion (usu. felony)
Elements:
1. Obtaining money or other property by means of unlawful threat, OR
2. An unlawful threat made for the purpose of obtaining money or other property (even if none in fact is obtained)

Actus Reus:

Mens Rea (min suf.):
Common Law:
• Specific Intent

Obtaining money/property by threat Unlawful threat to obtain even if not obtained

Model Penal Code: • Purpose/Knowledge

• Notes: Property Possible: 1. Money 2. Money or Property 3. Anything of Value 4. Anything to make V act against will

Threat in Extortion (statutory extortion) – same as robbery (generally), but threat can be immediate OR it can be in the future, can be threat to crime, economic harm, personal harm, accuse V of crime, expose secret, or defect exposure • Some Juris will have blackmail statute When something looks like robbery but fails, look for STATUTORY EXTORTION, created for robbery without satisfaction of common law larceny Claim of Right • Majority – NOT a defense • Minority – may be a defense

Crimes Against Property: C.L. Bribery (c.l. misdemeanor)
Elements:
1. Giving or taking 2. Of a bribe

Actus Reus:
• • • Give Take Bribe

Mens Rea (min suf.):
Common Law: • General Intent

Model Penal Code: • Purpose/Knowledge

Notes: • Bribe = something given for purpose of improperly influencing official action

Crimes Against Property:
Forgery (c.l. misd.; today usu. stat felony)
Elements:
1.
2. 3.

Actus Reus:

Mens Rea (min suf.):
Common Law:
• Intent to defraud – BUT in c.l. no one actually needs to be defrauded

Fraudulent making (or altering)
Of a false writing, AND Writing is one that has apparent legal significance

Obtaining money/property by threat Unlawful threat to obtain even if not obtained

4.

With intent to defraud

Model Penal Code:
• • Intent to defraud Purpose/Knowledge

Notes: Apparent Legal Significance (liability, wills, deeds, etc) False Writing Offense (not just tell a lie must be a lie) • Uttering - using a false writing • Offering as genuine • An instrument that may be subject of forgery and is fake • With intent to defraud

Crimes Against Property: Consolidation of Theft Offenses
Modifications:

1. MD – removes asportation of element of larceny 2. Specific provision of larceny by finders and misdeliverers
3. MD provides that cl crimes still exist, if not covered by consolidated theft statute

Elements:
1. 2. 3. 4.

Offenses Against the Habitation: C.L. Arson (c.l. felony)
Actus Reus:

Mens Rea (min suf.):
Common Law: • Malicious = particular intent to (1) burn dwelling or (2) under circumstance that danger is plain and obvious of burning dwelling of another

Malicious Burning Of the dwelling house Of another

Exceptions to Maliciousness: Omission commission of arson: 1. D unintentionally or accidently sets or causes the fire, if D does not realize he did it – not liable 2. BUT if after starting, D realizes he was cause, if D fails to do anything to prevent the spread either with INTENT that building burn OR with KNOWLEDGE that there is a plain and obvious danger that dwelling burn – can be criminally liable 3. If after he sets fire accidently and is simply reckless or negligent in failing to do anything about it then he is not guilty of c.l. arson (maybe statutory)

Burning • Necessity of fire • Damage required – scorching (insufficient) v. charring Dwelling House of Another • Must be the dwelling by another (c.l.) – place where a human being regularly or usually sleeps at night (but nighttime is not really a requirement); presence is not necessary so long as there is an intent to return • Possession, not ownership – possessed by another in arson

Model Penal Code:
• • Malicious Purpose/Knowledge

Notes: MD Statutes – get rid of recklessness Modern Statues: • Remove “of self” requirement so other person’s house could work • Remove qualifications, fraudulent burning • Include vehicles and other not covered • Extension of property • MD mens rea is more limited • Law of Fixtures


Wall Sharing: Part of the building is being used as a dwelling then dwelling as a whole for arson, OR If not home building but have a room where owner or employee sleeps Curtilage • Buildings that are set apart on the same property but connected by property (not separated by a public road or fence) • Typically area with the “fence” around a property – actual fence not required it can be imagined • Buildings other than structures that constitute the dwelling must be within a reasonable distance from dwelling house to be in curtilage

Offenses Against the Habitation:
Malicious Mischief (c.l. misdemeanor)
Elements:
1. 2. Malicious Destruction of, or damage to

Actus Reus:
• • Destruction Of property not c.l. arson

Mens Rea (min suf.):
Common Law: • Malice

3.

Property of another real or personal that is not c.l. arson

Model Penal Code: • • Malicious Purpose/Knowledge

Notes:

When arson won’t work, consider Malicious Mischief

Offenses Against the Habitation: Houseburning (c.l. misdemeanor)
Elements:
1. 2. Malicious Burning

Actus Reus:
• • • Destruction Burning of own dwelling Near city or others = surround circumstances

Mens Rea (min suf.):
Common Law: • Malice

3.
4.

Of one’s own dwelling
If the structure is situated either a. In a city or town; or b. So near to other houses as to create a danger to them

Model Penal Code: • • Malicious Purpose/Knowledge

Notes:

Offenses Against the Habitation: Burglary (c.l. felony)
Elements:
1. 2. A breaking And entry

Actus Reus:
• Breaking – Minimal Force Sufficient • Define: making an opening in a structure by trespass (without permission or without consent) • Can be on the interior • Built in furniture would be sufficient – could be breaking Entry with Authority • Given access and authority – no breaking • If use of access when not authorized – breaking Entering Dwelling of Another (same arson) In the Nighttime (hour before/after)

Mens Rea (min suf.):
Common Law: • Special Intent – intent of committing felony therein (need not know felony); need a mental state HIGHER than just doing the crim

3.
4. 5. 6.

Of the dwelling
Of another At nighttime With the intent of committing a felony therein
• • • •

Model Penal Code:
• 1. 2. Special Intent Intent to engage in fel. Therein Objective: any felony (c.l. lar misd) is still appropriate

Notes: Mens Rea for Actus Reus = KNOWINGLY for all elements Statutory Modifications • Add structures in curtiledge • Criminalize daytime • Some eliminate breaking element Intent Issues – breaking/enter concurrence – enter through break

• •

Entering : (1) must follow the breaking and must be made through the entry made by the breaking and while it must follow it may not need to be on the same night (earlier made opening will suffice (2) Any part of body crossing plane is sufficient (3) Distinction in terms of entry – some part, person or tool if tool is used to break then not sufficient but if tool will be used for the felony within then sufficient (4) does not have to occur, must have intent to commit felony Degrees – one degree may be misdemeanor; daytime as misdemeanor Underlying crime as larceny • Even if CL larceny would not be felony offense b/c of value, still works

Crimes Against Persons: Criminal Battery (c.l. misdemeanor)
Elements:
1. Unprivileged touching of another which is either: a. b. Intentional, OR Unintentional but the result of Ds reckless conduct, OR Unintentional but one result of Ds commission of an unlawful act which did not involve recklessness on Ds part

Actus Reus:
Voluntary Conduct • Unprivileged touching Surrounding Circumstance • Touching actually occurs • Human

Mens Rea (min suf.):
Common Law: • General Intent & NEVER strict liability

c.

Model Penal Code: • • General Intent Knowledge, Purpose, Recklessness, or Negligence

Notes:

Common Law v. Statute • MD – common law crime but statutory penalty

Crimes Against Persons:
Attempted Criminal Battery (c.l. misdemeanor)
Elements:
1. Must be an attempted unprivileged touching of another which comes near to achieving its objective D actually intends to commit a battery AND (possibly) D must have presentability to commit a battery when the touching is attempted

Actus Reus:
Voluntary Act • Unprivileged touching attempted Surrounding Circumstances • Touching doesn’t actually occur • Presentability • Some Districts – presentability not needed, MD is apparent ability • Others - needed • Human being

Mens Rea (min suf.):
Common Law: • General Intent & NEVER strict liability

2. 3.

Model Penal Code: • • General Intent Knowledge, Purpose, Recklessness, or Negligence

Notes: PRESENTABILITY Issues Apparent Ability Issues


Common Law v. Statute • MD – common law crime but statutory penalty • MD – apparent ability – if D believes presentability MUST come near to achieving objective

Crimes Against Persons:
Civil or Tort Assault (c.l. misdemeanor – if recognized)
Elements: Actus Reus: Mens Rea (min suf.):
Common Law: • General Intent & NEVER strict liability • Must have intent to put V in prospective reasonable apprehension of immediate bodily harm Model Penal Code: • General Intent • Knowledge, Purpose, Recklessness, or Negligence

1. Conduct by D which places V Voluntary Act • Conduct that threatens in prospective reasonable prospective reasonable apprehension of immediate apprehension of immediate harm bodily harm, AND • Touching doesn’t actually occur
2. D intend his conduct to cause such apprehension or such harm

Notes: • No issues of Presentability or Apparent… Consent generally not accepted Statutory Misdemeanor unless Statute – must impose tort assault AGGRAVATED tort assault – must have a statute • Normally against police/fire • But not our statute – deadly weapon • • • • • Common Law v. Statute • MD – common law crime but statutory penalty Exceptions: • Minor touching that is consented to, minor physical injury • State sponsored activities (sports) Misdemeanor v. Felony Direct Touching – actually touching a person with your person or object Indirect Touching – causing another person to touch something else Words = actions

Crimes Against Persons: Homicide Offenses - General
Elements:
1. Justifiable Homicides

Actus Reus:

Mens Rea (min suf.):
Common Law: • Common Law Criminal • Intent to Kill • Intent to Cause Serious Bodily Injury • Depraved Heart • Felony Murder

2. Excusable Homicides
3. Criminal Homicides

All homicides have the same ACTUS REUS • Death of human being by another human being NOTE: killing an animal is never homicide (maybe cruelty, malicious destruction, etc)

Model Penal Code:

Depends…

Notes:

Common Law Homicide: • Criminal Homicide • Manslaughter • Voluntary • Involuntary • Criminal Negligence • Unlawful Act Rule – (1) misdemeanor manslaughter or (2) felonies not included in felony murder manslaughter Statutory • Willful, Deliberate, Premeditaded • First Degree Felony Murder

Crimes Against Persons:
Common Law Criminal Homicide (2nd Degree)
Elements:
1. Murder – homicide committed with malice (express or implied) aforethough without justification, excuse, or mitigation under one of four circumstances:
Intent to Kill - D had the intent to kill Intent to Cause Serious Bodily Injury - D had an intent to cause serious bodily injury, OR Depraved Heart – Ds act which caused Vs death involved a willful and wanton disregard of an unreasonable human risk (depraved heart) Felony Murder – Vs death occurred during Ds commission of or attempt to commit a felony to which the felony murder rule applies at common law

Actus Reus:

Mens Rea (min suf.):
Common Law: • Common Law Criminal • Intent to Kill • Intent to Cause Serious Bodily Injury • Depraved Heart • Felony Murder

Killing of a human being by another human being

• •

Model Penal Code: • General Intent • Knowledge, Purpose, Recklessness, or Negligence


Notes: •

Rebuttable Presumption: D causes death of another human being, start with presumption that there is no justification, excuse, or mitigation IF there are elements of malice MPC 3.02 (Necessity Justification) – avoiding evils, count noses, no need for natural consequence to justify criminal homicide

Crimes Against Persons:
Manslaughter (c.l. felony) – Vol/Invol.
Elements:
1. It is committed …
i. ii. iii. With intent to inflict bodily injury other than serious bodily injury OR Through recklessness OR In the commission of or attempt to commit certain crime other than felonies subject to felony murder rule (misd. mans)

Actus Reus:

Mens Rea (min suf.):
Common Law:
• • • Intent to inflict bodily harm OTHER than serious bodily harm Recklessness Transferred Intent from commission of felony

Killing of human being by a human being

2.

Committed with intent to kill or inflict serious bodily injury (normally would be M2) but there is a mitigation sufficient to negative malice: 1. 2. Imperfect claim of justification or excuse, OR Provocation

Model Penal Code: • Purpose – inflict injury not serious • Knowledge, Recklessness • Criminal Negligence

Notes:

Crimes Against Persons: Voluntary Manslaughter
Elements:
1. Provocation must have been one that would arouse sudden and intense passion in the mind of an ordinary person such as to cause him to lose his self control D must have in fact been provoked There must not have been sufficient time between the provocation and the killing for the passions of a reasonable person to cool off D in fact did not cool off between the provocation and killing

Actus Reus:

Mens Rea (min suf.):
Common Law:
• Intent to kill w/ sufficient provocation and no time for reasonable person to do otherwise

2. 3.

4.

Killing of human being by a human being Provocation Adequate: • D being subjected to serious battery or a threat of deadly force; AND/OR • Discovering one’s spouse in bed with another person Provocation Inadequate • Mere Words – may mitigate from M1, to M2 Imperfect Self-Defense

Model Penal Code: • Purpose – inflict injury not serious • Knowledge, Recklessness • Criminal Negligence

• • Notes:

Cooling Off Time = factual question up to jury under common law Imperfect Self Defense (expansion)  Murder may be reduced to manslaughter when: o D was at fault in starting the altercation, OR o D unreasonably but honestly believed in the necessity of responding with deadly force

Crimes Against Persons:
Criminal Negligence - Involuntary Manslaughter
Elements:
1. Death caused by criminal negligence OR intent to cause non-serious bodily harm 2. Requires greater deviation from “reasonable person standard than is required for civil liability

Actus Reus:
• • Killing of human being by a human being Great deviation from standard of care

Mens Rea (min suf.):
Common Law:


Intent to cause non-serious bodily harm Criminal Negligence

Model Penal Code: • Criminal Negligence & above

Notes:

Criminal Negligence v. Recklessness Some states require that D have known the risk Factors to Determine: • Social utility of Ds knowledge • Ds knowledge of facts bearing on risk • Nature and extent of harm that may be caused • Any precautions taken by D to minimize risk

Cooling Off Time = factual question up to jury under common law Imperfect Self Defense (expansion)  Murder may be reduced to manslaughter when: o D was at fault in starting the altercation, OR o D unreasonably but honestly believed in the necessity of responding with deadly force o Recklessness: requires substantial and unjustifiable risk assumed and CONSCIOUS risk assumption o Criminal Negligence – no conscious risk assumption; still sub. and unjustifiable risk • •

Crimes Against Persons:
“Unlawful Act”- Involuntary Manslaughter
Elements:
Misdemeanor Manslaughter • Killing in the course of commission of a misdemeanor without intent to injure • Normally misdemeanor must be malum in se or malum prohibitum that the death be the foreseeable or natural consequence of the unlawful conduct (norm. assault) Felonies not Included in FM • Killing caused during commission of a felony but does not qualify as a felony murder case
Notes: Criminal Negligence v. Recklessness Some states require that D have known the risk Factors to Determine: • Social utility of Ds knowledge • Ds knowledge of facts bearing on risk • Nature and extent of harm that may be caused • Any precautions taken by D to minimize risk Cooling Off Time = factual question up to jury under common law Imperfect Self Defense (expansion)  Murder may be reduced to manslaughter when: o D was at fault in starting the altercation, OR o D unreasonably but honestly believed in the necessity of responding with deadly force o Recklessness: requires substantial and unjustifiable risk assumed and CONSCIOUS risk assumption o Criminal Negligence – no conscious risk assumption; still sub. and unjustifiable risk • •

Actus Reus:
• • Killing of human being by a human being Killing caused by an unlawful act

Mens Rea (min suf.):
Common Law:


Intent to cause non-serious bodily harm Criminal Negligence

Model Penal Code: • Criminal Negligence & above

Crimes Against Persons:
Standard Statute for Murder in the First Degree General Statutory Interpretations
Statutory Interpretations
1. “All murder which shall be perpetrated by means of poison, or by lying in wait, or by any other kind of willful, deliberative and premeditated killing, or in the perpetration of or attempt to perpetrate (stated felonies)” 2. Alternative Pattern (in MD until statute) of 1st degree murder: "all murder which shall be perpetrated by means of poison, or lying in wait, or which is willful, deliberate and premeditated, or which is committed in the per petration of or attempt to perpetrate (stated felonies)"

Mens Rea (min suf.):
Common Law:

n/a

Model Penal Code: • Willful, Deliberate AND Premeditated

Varying Views by States Presumptions & Burdens of Persuasion • Majority View – Jury looks at intent of a reasonable person • Minority View – in Ds circumstances was it willful, et al.

Willful: intent to kill and purpose (MPC) • Intent to kill = malice for M2 • Willful, “not intentional” – requires MPC purpose to kill, has to be objective to cause death Deliberate: weighing reasons for and against, made decision to kill in cool and dispassionate manner • Offensive Language – likely not sufficient as mitigation for provocation, BUT may be sufficient to prevent acting with a cool state of mind, and since he/she was not able to deliberate – would be murder 1 • Intoxication – normally not an excuse, but maybe enough to bring down Premeditation – design and determination to kill • “Appreciable” time for deliberation • Must have time to deliberate and D must have in fact deliberated – must have reflected and weighed in time (however small) that had MPC purpose to kill

Crimes Against Persons:
First & 2nd Degree Felony Murder (Statutory)
Elements:
Common Law Rule: • Death resulting from the perpetration or attempted perpetration of a felony is murder without any regard to whether the felony was dangerous or whether there was any likelihood that death would result from D attempting or committing the felony Statutory Elements (construction norm. issue) • Statute lists a specific set of felonies that provide that if felony murder is committed during the perpetration of an enumerated felony – killing is 1st degree (stated felonies = murder 1) [added to willful/deliberate /premed] • MD – long list for M1 & recognize M2 FM

Actus Reus:
• • • Killing of human being by a human being during the commission of a qualifying felony Limits through Causation Few States – all felonies, whether dangerous/not dangerous and whether common law felony/statutory Other states – only felonies at common law • Problem – looking at felony in the abstract or in circumstances Other States: only felonies malum in se (wrong in themselves), true when murders are common law or statatory

Mens Rea (min suf.):
Common Law:

Intent to commit felony (and death is result)

Model Penal Code: • Intent to commit qualified felony for 1st degree/all else 2nd

Notes:

Causation Problems Likely Defenses Not felony in state, time, merger, foreseeability of death MD Inherently Dangerous Test • Inherently dangerous to human life for purposes of felony murder rule if it is inherently dangerous to human life in the abstract OR if dangerous to human life based on the manner in which the felony is committed

Causation Limits: • Scope of Time when Murder Occurs – before/during/after commission • i.e. Burglary – normally when death occurs while D on premises • Issues: Escape, Temporary Safety, Res Gestae • Most states – won’t allow aggravated assault to push fel. murder • Fired Fatal Shot Causation Views: • Majority View – Agency: Death must be natural and probably consequence of Ds commission of the felony • Minority – Lowry – Proximate Cause Theory: Does not require that death in question be the natural and probable result of D committing the felony & requires death to be proximately caused by Ds felony Issues when 3rd Party Causes Death to another 3rd Party – normally not guilty

Homicide: Determining…
Start Here:
1st Degree Murder, distinguish between willful, lying in wait, felony.

Then Here:

Causation Issues? States of Mind for “Malice Aforethought?”

Any facts to make willful, deliberate, premeditated or with another felony?

Proximate Cause
Yes No

But For

Any provocation to reduce the murder? Yes = Voluntary Manslaughter UNLESS depraved heart – extreme recklessness? Yes= Unlawful Involuntary Yes Depraved Heart = 2nd Degree Murder

Involuntary manslaughter – any criminal negligence?

Simple Theory

Complex Theory

No= Accompanying Misdemeanor or felony not qualified?

Yes = Misdemeanor Manslaughter

Crimes Against Persons:
False Imprisonment (ask if we need to know this)
Elements:
• Unlawful

Actus Reus:
Confinement

Mens Rea (min suf.):
Common Law:


Confinement of a person
Without his valid consent

V compelled to go where he does not wish to go or to remain where he does not wish to remain
Not confinement to simply prevent a person from going where he desires to go, as long as alternative routes are available

General Intent

Model Penal Code:

Recklessness & above

May be accomplished by actual force, threats, or show of force

Crimes Against Persons:
Kidnapping (ask if we need to know this)
Elements:
Common Law: • Forcible abduction or stealing away a person • • From his own country and Sending back to another Model Penal Code: • Purpose/Knowledge

Actus Reus:
• Hiding/stealing person

Mens Rea (min suf.):
Common Law:

Specific Intent

Statutory Elements • General Pattern: • Some movement (asportation) of the V OR • Concealment of V in “secret place”

Statutory Modifications • Aggravated Kidnapping • For Ransom; Purpose of Commission of Other Crime; Offensive attack; Child Stealing • Requiring Movement • Secrecy • Consent • Relationship to Other Offenses

Justification:
Reasonableness Elements:
Reasonableness: • D must have honestly & reasonable acted In prevention Ds actions causing Vs death (must be reasonable, cannot just be honest)
• NOTES: Law says that the act was the RIGHT thing to do – works for the accomplice

Actus Reus:
• Action in prevention

Mens Rea (min suf.):
Common Law: • Honest and reasonable, no room for anything less

• •

Model Penal Code: • Honest and reasonable

Statutory Modifications • Instead of heat of passion = extremely mental or emotional disturbance for which there is reasonable justification or excuse Common Law • Either have COMPLETE justification/excuse or not • If D acted in any unjustifiable way, then defense is not an option

Justification: Self-Defense: Nondeadly Force
Elements:
• May use such force as reasonably appears necessary • That D is in immediate danger of unlawful bodily harm from that other V, AND That the use of such force is necessary to avoid the danger

Actus Reus:
• Action in prevention

Mens Rea (min suf.):
Common Law:

Honest and reasonable, no room for anything less

Model Penal Code:

Honest and reasonable

No duty to retreat
• Unlawful Bodily Harm • Criminal or tortuous – touching that occurs b/c of recklessness or negligence; negligent must be extremely negligent to be criminal Battered Women/Child Syndrome • Frequently comes up with battered wife - long period, frequently years, when spouse has been beaten on regular basis or whenever V is in bad mood • Immediacy Issue - will normally be a mitigation from murder to manslaughter because it is difficult to show that immediate unlawful bodily harm was imminent

NOTES:

Justification:
Self-Defense: Deadly Force
Elements:
i. ii. iii. D is without fault Confronted with unlawful force D is threatened with imminent death or great bodily harm, AND (possibly) Duty to Retreat

Actus Reus:
• • • Action in prevention Duty to Retreat Majority Rule – • No duty to retreat Minority – • D, prior to using deadly force, must retreat ONLY if he knows that he can do so in complete safety Exceptions to Minority Rule • No duty to retreat from home • No duty to retreat if victim of rape or robbery • Police officers in retreat jurisdiction have no duty to retreat

Mens Rea (min suf.):
Common Law: • Honest and reasonable, no room for anything less

Model Penal Code: • Honest and reasonable

iv.


NOTES:

Without Fault • A person who has initiated an assault or provoked the other party will be considered the aggressor Unlawful Force • Attack must be force that constitutes a crime or a tort Threat of Imminent Death or Great Bodily Harm • D must reasonably believe that he is faced with imminent death or great bodily harm • Harm must be present • NO RIGHT to use deadly force if the harm is a future harm or V has no reasonable means of carrying out the threat

Justification:
Self-Defense: Right of Aggressor to Use Self-Def.
Elements:
i. Generally, one who begins a fight has no right to use force in her own defense during that fight, BUT can regain in 2 ways Withdrawal i. If remove from fight in good faith, AND ii. COMMUNICATES to the other person the desire to remove iii. May regain right

Actus Reus:
• • Action in prevention Plus: • Withdrawal, or • Sudden Escalation

Mens Rea (min suf.):
Common Law: • Honest and reasonable

ii.

Model Penal Code: • Honest and reasonable

iii.

Sudden Escalation i. If D started “minor” fight and escalates to one in which deadly force is necessary then aggressor may use force in his own defense

NOTES:

Elements:

Justification: Defense of Others
Majority Rule: one may use force in defense of any other person if the other requirements of the defense are met Minority Rule: require that the person whom the D aided must either have been a member of family or significant relationship

Mens Rea (min suf.):
Common Law:
• • Honest and reasonable Minority/Majority Split

Relationship with Person Aided

Model Penal Code:

Honest and reasonable

Status of Person Aided
• Majority – Up to D - D has defense ONLY IF reasonably believe that the person she assisted had the legal right to use force in his own defense Minority: “Step into the shoes of the person needing defense”

NOTES:

Justification:
Defense of Dwelling (deadly & nondeadly)
Elements:
Nondeadly Force
• May use nondeadly force when D reasonably believes that such conduct is necessary to prevent or terminate another’s unlawful entry into or attack upon dwelling

Mens Rea (min suf.):
Common Law:
• Reasonable

Deadly Force (2 Situations) • Tumultuous Entry – when attempt is made in a riotous, violent, or tumultuous manner AND person reasonably believes that the use of force is necessary to prevent a personal attack upon herself or another in the dwelling Felony: reasonable belief that such force is necessary to prevent the entry into the dwelling by a person who intends to commit a felony in the dwelling

Model Penal Code:

Reasonable

NOTES:

Justification:
Defense of Other Property (deadly & nondeadly)
Elements:
Nondeadly Force
• • • • May be used to defend property in one’s possession from unlawful interference Real Property – entry or trespass (NDF allowed) Need to use must be reasonably imminent Force may not be used to regain property believed to be owned by D

Mens Rea (min suf.):
Common Law:
• Reasonable

Model Penal Code:

Reasonable

Deadly Force
• • Defense of property alone can NEVER justify the use of deadly force Must be used with another source of defense

NOTES:

Justification:
Crime Prevention (deadly & nondeadly)
Elements:
Nondeadly Force
• Privileged to use force to the extent that it reasonably appears necessary to prevent a felony, riot, or other serious breach of the peace CA – prevention of any crime allowed

Mens Rea (min suf.):
Common Law:
• Reasonable

Model Penal Code:

Deadly Force

Reasonable

Old View • DF allowed to prevent commission of any felony
Modern View • DF only if the crime is a “dangerous felony” involving risk to human life • Includes robbery, arson, burglary of a dwelling, etc…

NOTES:

Justification:
Use to Effectuate Arrest (police & private)
Elements:
Police Officer
• Force to apprehend a felon is a type of “seizure” – and must be reasonable DF reasonable only when the felon threatens death or serious bodily harm and deadly force is necessary to prevent escape

Mens Rea (min suf.):
Common Law:
• • Reasonable Private DF – crime must actually have taken place

Model Penal Code:
• • MPC 3.07 Use of deadly force to make arrest or prevent escape is justified ONLY IF; • Crime being committed is a felony • Arresting person is a police officer or the person helping must think he is doing it for a police officer, AND • D must honestly and reasonably believe that force used causes NO risk to any other innocent third party • Crime for which the arrest is being made is imminent force OR deadly force OR • D believes that the peron he is trying to arrest – deadly force is justified when the actor believes that there is a substantial risk that the offender will cause death or serious bodily injury if his apprehension is delayed

Private Person • Same as a police officer BUT DF is only allowed if the person IS ACTUALLY guilty of the offense for which the arrest was made NDF – acceptable to make arrest if a crime was in fact committed an the private person has reasonable grounds to believe person being arrested actually committed the crime

NOTES:

Justification:
Resisting Arrest (not known police/known pol.)
Elements:
Person NOT Known to be Police
• Individual may repel with deadly force if necessary an attack made by a police officer trying to arrest D is honestly and reasonably does not know that person is a police officer

Mens Rea (min suf.):
Common Law:
• • Reasonable Private DF – crime must actually have taken place

Known Police Officer • Majority Rule • NDF may be used to resist and improper arrest Minority & MPC • Force may not be used to resist one known to be a police officer

Model Penal Code:

Reasonable

NOTES:

Justification:
Necessity – Common Law
Elements:
a)
b) c)

Actus Reus:
Natural Emergency (split)
• • Emergency in Fact Reasonable and Honest Belief in the Emergency

Mens Rea (min suf.):
Common Law:
• • • Imminet to reasonable expectation of harm No reaonable opportunity to avoid Honest and reasonable belief that the harm avoided would be greater than harm done by D in violating INTENT TO AVOID THE GEATER HARM!

d) e)

f)

There must be an emergency brought about by natural forces Emergency was not the fault of D Harm is so imminent and compelling as to raise a reasonable expectation of harm to D or to another or others who D is protecting Situation presents no reasonable opportunity to avoid the expected harm without D doing the criminal act D must have acted with an honest and reasonable belief that the harm avoided by Ds violation of the law would be greater than the harm down by D violating the law Act must be committed with intent to avoid the greater harm

Model Penal Code: •
• •

n/a

Criminal Homicide – necessity is NOT acceptable If caused by Ds Recklessness or Negligence
• When the actor was reckless or negligent in bringing about the situation requiring a choice of harms or evils or in appraising the necessity for his conduct, the justification afforded by the Section is unavailable in a prosecution for any offense for which recklessness or negligence, as the case may be, suffices to establish culpability

NOTES:

Justification:
Necessity – Model Penal Code 3.02
Elements:
a) Conduct which the actor believes to be necessary to avoid a harm or evil to himself or to another is justifiable provided that: i. The harm or evil sought to be avoided by such conduct is greater than that sought to be prevented by the law defining the offense and charge ii. Neither the Code nor the other law defining the offense provides exceptions or defenses dealing with the specific situation involved, AND iii. A legislative purpose to exclude the justification claimed does not otherwise plainly appear

Actus Reus:
Natural Emergency (split)
• Harm avoided was greater than harm that occurred “counting noses”

Mens Rea (min suf.):
Common Law:
• n/a

Model Penal Code: • Honest belief of the actor

Surrounding Circumstances • No legislative intent • No other defenses dealing with situation

• • NOTES:

Criminal Homicide – necessity is NOT acceptable If caused by Ds Recklessness or Negligence
• When the actor was reckless or negligent in bringing about the situation requiring a choice of harms or evils or in appraising the necessity for his conduct, the justification afforded by the Section is unavailable in a prosecution for any offense for which recklessness or negligence, as the case may be, suffices to establish culpability

Excuse:
Duress – Affirmative Defense
C.L. Elements:
a) b) Situation must be brought about by mental pressure exerted on D by another person with Ds fault, AND D must be under unlawful present imminent use of threat of harm to himself or one of his family or perhaps another, AND Threat is of such nature as to induce in D a reasonable apprehension of immediate unlawful death or serious bodily harm if D fails to do the criminal act, AND D must in fact believe that he will suffer death or immediate serious bodily harm if he fails to do the act, AND D must have no reasonable alternative for violating the law

MPC 2.09
“Choice of Evils” – avoid greater evil

Mens Rea (min suf.):
Common Law:

2.09 – does not require death or immediate threat of extreme bodily harm
REQUIRES – threat of unlawful force


• • •

c)

Reasonable belief of unlawful threat Reasonable apprehension Must in fact believe No reasonable alternative

Model Penal Code:

d)

e)

NOTES: Exceptions for when 2.09 & 3.02 are insufficient • Prison Escape • Medical Exception – D does not get medicine he needs to survive • Weapon Possession by D when illegal for D to possess


Future Harm - does not do for duress, is it's in the future then there is a reasonable
alternative that can be sought Harm - must be such that a person of reasonable firmness in Ds situation would be unable to resist Duress - at COMMON LAW - can excuse any crime other than intentional homicide At MPC it can excuse any crime including criminal homicide

• •

Excuse:
Intoxication
C.L. Elements:
a) When intoxication leads to permanent mental incompetence or mental disease i. Does not matter if voluntary or involuntary – if disease causes D to engage in criminal conduct then going to insanity defence

b) Temporary Insanity (3 Approaches) 1. 2. 3. Some – defense if voluntary ingestion alone Others – if caused by involuntary where D did not know that ingesting substance would cause temporary insanity (If known then doesn’t work Others – temporary insanity is not available UNLESS taking medicine on doctor’s instruction AND doctor failed to give notice

NOTES:

Excuse:
Intoxication – Voluntary
C.L. Elements: Mens Rea (min suf.): For Voluntary Intoxication as Defense: • If PURPOSE/KNOWLEDGE • May mitigate Specific Intent – possible General Intent – not possible

a. Intentionally taking b. Without duress c. A substance known to be intoxicating – D need not have intended

• • • •

Purposely Become Intoxicated • Defense is not available NO defense for crimes requiring MALICE, RECKLESSNESS or NEGLIGENCE or crimes of STRICT LIABILTY

NOTES:

Excuse:
Intoxication – Involuntary
C.L. Elements: Mens Rea (min suf.):

a. Taking of intoxicating substance either: 1) Without knowledge of its nature

For Mens Rea Purposes: • Will be treated like any other mental illness – will depend on which jurisdictional test is used

2) Under direct duress imposed by another
3) Pursuant to medical advice while unaware of substance’s intoxicating effect
NOTES:

Excuse:
Mistake
C.L. Elements: • • Mistake of Fact • See mens rea Mistake of (Collateral) Law • Must be a law that D is not being charged with
Mistakes as to Law Proscribing Ds Conduct • Will not work

Mens Rea (min suf.):
Mental State of Crime As It Relates to Mistake of FACT: • • • Specific Intent = ANY mistake Malice & General = REASONABLE mistake only Strict Liability = NEVER

Common Law – Any Mistake: 1. Only when negates intention 2. Is NOT a defense for strict liability 3. Application of defense only when reasonable

Mistake to NEGATIVE Mens Rea • Must be HONEST & REASONABLE • Recklessness – the conduct is automatically unreasonable

NOTES: • Normally will apply to Ds conduct not the result • If law – must be OTHER than law with which D is being charged

Mistake: applies to criminal liability as a defense if it negates a mental state – mens rea required to establish an element of the actus reus of the crime, may apply to lowering the guild to a lesser crime

Provocation (excuse/mitigation)
Elements:
Common Law Elements: • Legally adequate provocation (objective standard to jury) • Killing must have been in the heat of passion (subjective standard) • Heat of passion must have been sudden (objective) • Causal relationship between provocation, passion and fatal act MPC 210.3(1)(b) • Not all heats of passion are sudden so MPC allows for smoldering anger
Statutory Modifications • Instead of heat of passion = extremely mental or emotional disturbance for which there is reasonable justification or excuse Common Law Provocation • Either have COMPLETE justification/excuse or not • If D acted in any unjustifiable way, then defense is not an option

Actus Reus:
• Action resulting from heat of passion MD Rule – Catching spouse will no longer count as provocation • May mitigate from M1 to M2 but will not go from M2 -> manslaughter

Mens Rea (min suf.):
Common Law:


Honest and reasonable, no room for anything less

Model Penal Code:

Honest and reasonable

NOTES: Law says that the act was the RIGHT thing to do – works for the accomplice

Causation:
Cause In Fact – “But For”
C.L. Elements:

a. Ds conduct must be the cause-in-fact of the result “but for” • i.e. Common Law Year and Day • death must occur within one year and one day from infliction of injury or wound

NOTES:

Causation:
Proximate Cause
C.L. Elements:
Whether the difference in the way the death was intended or anticipated and the way in which it actually occurred breaks the chain of “proximate causation”

1) All Natural and Probable Results Are Proximately Caused
o
o

D is responsible for all results that occur as a “natural and probable” consequence of his conduct – even if he did not anticipate the precise manner in which they would occur, he may still be liable for the result Chain may be broken by “SUPERSEDING FACTOR” a) Intervening Force: comes about after Ds force is put in motion and brings about harm in a different way – look at concurrence [i.e. 2 shooters hit one V, if dies from both bullets then both Ds are responsible for death even if neither on own would have caused death]  Take Victim as Found – if shot normally wouldn’t kill but does kill, still responsible for death
Independent – cause is dependent if it is in response to Ds conduct • Intervening acts on part of V in response to Ds acts are dependent and do not break the causal chain – can go pretty far • Intervening acts of D himself will not break causal chain • Intervening acts of 3rd party can or cannot be dependant – will be up to the judge • Intervening Non-Human – generally independent • If intend harm by raaaaatttttttlesnake then dependent, foreseeability Unforeseeable - negligence by medical personnel is deemed to be COMPLETELY foreseeable (takes something really outrageous)

b)

c)

2) Transferred Intent
NOTES:

Causation:
Simple Theory (MPC 2.03) = “But For” +
MPC 2.03: Result must be within: 1. Ds purpose or knowledge in case of crime of purpose or knowledge, OR 2. The risk which D foresaw (recklessness) or should have foreseen (negligence), AND 3. Variation between actual result and that intended, contemplated, or risk involved not so extraordinary that it would be unfair or unjust to hold responsibility
When Purpose/Knowledge – result must have been intended – within purpose/knowledge When Reckless/Negligence – result must be within risk D foresaw (if reckless) and what D should have foreseen (negligence) – if superseding event then not liable Rules of Causation: 1. Hastening Inevitable Result - Act that hastens an inevitable result is still legal cause 2. Simultaneous Acts - Simultaneous acts by two or more may be considered independently sufficient causes of a single result 3. Preexisting Condition - “Take the victim as you find him”

Causation:
Complex Theory (C.L. Approach) = “But For” +
Common Law Elements:

Result must be within:
1. D intended or contemplated (in crime of purpose or knowledge) or 2. D foresaw or should have foreseen (in crime of recklessness/negligence) and 3. If crime is one of recklessness/negligence there must be no supervening cause
When Purpose/Knowledge – result must have been intended – within purpose/knowledge
When Reckless/Negligence – result must be within risk D foresaw (if reckless) and what D should have foreseen (negligence) – if superseding event then not liable Rules of Causation: 1. Hastening Inevitable Result - Act that hastens an inevitable result is still legal cause 2. Simultaneous Acts - Simultaneous acts by two or more may be considered independently sufficient causes of a single result 3. Preexisting Condition - “Take the victim as you find him” Notes: • When “forces come to rest in a place of safety” it may be enough to break the causal chain • If someone else uses Ds method to attack another V, i.e. D2 uses D1 poison coffee to poison V2, D1 not liable Intervening Acts: 1) Act by Nature 2) Act by Third Party 3) Acts by the Victim

W-RV Warning Retroactive Crim. Vagueness

ARRBA Accomplice Rape Rape Bigamy Abduction

LBC-PTMFT Larceny Bulk Carriers Property (lost) Trick (larceny by) Misdelivery Finders Trespass REEB-FU Robbery Extortion Extortion Bribery Forgery Uttering

EAF Embezzlement After Trust (larceny) False Pretenses

AMHB Arson Malicious Mischief Houseburning Burglary

BAAA Battery Attempted Battery Assault (tort) Aggravation

JSA-DDO Justification Self Defense Deadly Nondeadly Aggressor Defense of Others Dwelling Other Property

CUPSX Causation But For Proximate Simple Complex

EXDDIVIMP Excuse Duress – CL Duress MPC 2.09 Intoxication Voluntary Involuntary Mistake Provocation

HM4-IS- DF-MCUFS Homicide Murder Intent to Kill Serious Bod. Injur Depraved Heart Felony Murder Manslaughter Voluntary Involuntary Crim. Negligence Unlawful Act First Degree Second Degree

C-PARNN Crime Prevention Deadly Nondeadly Arrest Resist Arrest Necessity CL Necessity MPC 3.02

Defendant

Fiduciary Non-Fiduciary

Non-Servant

Servant Taker by Trespass

Bailee

From V

From 3rd Party From V St. Larceny After Trust St. Embz. No Crime Direct Misapprop. Put in V Possession Intentional From 3rd for V

Mistake (goat)

By Count

Package

No Crime

Larceny by Bailee (st.) Lar. By Bailee

The Package

Break Package

CL Larceny CL Larceny Stat. Embezzlement

CL Larceny

Continuing Trespass = CL Larceny

No Crime

Bulk

Carriers Case CL Larceny

By Count Larc. By Bailee Finder Misdelivery Some = CL. Larceny – Carriers

By Weight

All = Lar. By Bailee

Find Owner Cant Find Owner

V Intends Just Possession

Intent to Keep = CL Larceny

V Intended Possession and Title Some Juris – misappropriation by finder statute Keep = no crime Intent to Return but Don’t = Larceny by Bailee Identity of Person Identity of Property FINDERS Situation

Return w/ Condition = CL Larceny (give up right) No Crime, unless misdelivery statute FINDER’S SITUTION