Criminal Law Outline

-Criminal law is almost always involuntary (for the defendant); it is about societal norms. It is the state imposing its will upon individuals (one-sided). Functions of Criminal Law 1. Determination of public norms statement of them (!ut" whose norms do these reflect # race" class issues) $. Instructs the %ublic # on how to act according to these norms; %eople are e&pected to 'now the law. (. %rohibits # types of behavior ). %revents *arm # but" hard to determine what +harm, is (e.g. gay se&) -. %rotect %ublic Interests./ocial 0alues # e.g. life" bodily integrity" property" protect the state. 1. 2o Condemn # stigmati3e 4. Differentiate between serious minor offenses 5. 2o 6dminister 7ust (89ual) %unishment # Criminal law is there to 'eep :udges from punishing arbitrarily (e.g. based on race" class). 6lso" principle that nobody should be punished unless there is fair warning that an activity is prohibited. ;;;;; Basic Principles of Criminal Law from Wayne LaFave 1. Conduct" to be criminal" must consist of something more than a mere state of mind. $. /ome sort of bad state of mind is re9uired as well. (Mens Rea) (. %hysical conduct mental state must concur" and<one should not be convicted for causing a greater or different harm than is reflected in his mental state. (w.e&ceptions) ). =nly harmful conduct should be made criminal. -. 2he conduct must be the pro&imate cause of the result. 1. 6 person who has engaged in criminal conduct may only be sub:ected to the legally prescribed punishment. 4. Conduct is not criminal unless forbidden by law which gives advance warning that such conduct is criminal. (%rinciple of >egality) ;;;;; Theories of Punishment 1. tilitarianism # (7eremy !entham) 2he purpose of all laws is to ma&imi3e the happiness of society. ?tilitarians stress general deterrence (punishment intended to deter the general community) Specific (or individual) deterrence is an alternative utilitarian goal. Criticism@ (1)?ses people solely as a means to an end" that they do not have immutable rights ($) Can :ustify punishment of the innocent (()Critics doubt that criminals can be reformed. !. "etri#utivism # (Immanuel Aant) Bocus on the individual. 2he main point is human dignity. %unishment is :ustified when it is deserved. It is deserved when a wrongdoer freely chooses to violate societyCs rules. Bocus on humansC free will dignity. *umans are ends" not means.

6ssaultive retribution (societal retaliation) # !ecause the criminal has harmed society it is =A for society to harm him bac'. %rotective Detribution # %unishment is a means of securing a moral balance in society. (Eot allowing free riders). 0ictim vindication # Dighting a wrong by reaffirming the victimCs worth as a human being in the face of the criminalCs challenge to that worth. Criticism@ (1) %unishment is senseless and even cruel if it does no good; ($) it legitimi3es hatred anger; (() it is irrational as it is based on anger" not reason -?ntil the 1F4GCs retributivism was not in fashion. !ecame influential when disappointment with the apparent failure of punishment to prevent crime prompted a search for alternatives to utilitarianism. -Devenge is personal. Detribution" in contrast" is ta'en by the state. -6lso" the state offends the dignity of the offender if it does not punish. It doesnCt allow the offender to become e9ual with society. -Detributivism loo's bac'ward and :ustifies punishment on the basis of voluntary commission of a crime. ?tilitarianism loo's forward. $. %enunciation &'(pressive Theory) # %unishment is :ustified as a means of e&pressing societyCs condemnation of a crime. (/ort of a hybrid of utilitarianism retributivism). ;;;;; Theory "easons to Punish Limits on Punishment "etri#utivism -Horal desert -!alance (putting a +fair price, on (Aant) -!alancing the score the offending damage) -Deasonable assurances (Horris) -Despect the offenderCs human -Bairness in distribution of duties dignity (not use them as a means) benefits (*erbert Horris) -Defeating the +master, (*ampton) tilitarianism -%revention (loo's to the future) -!entham@ Eo punishment where@ (!entham) -Deterrence@ ma'e one fear the (1) %unishment Hisapplied # there is punishment more than desire the no real offense ($) where punishment offense; ma'e it fairly certain wonCt prevent acts (() where -Incapacitation punishment can be achieved w.more -Dehabilitation mild means ()) where it produces more suffering than it prevents (6ll 2his from %g. (4) Bree Iill # 7ustifies punishment under utilitarianism (w.o free will people canCt be deterred) retributivism (moral desert). 7?/2 %?EI/*H8E2

Colora*o "evise* +tatutes, Title 1-, Criminal Co*e &1...) %urpose of this code is to@ (a) define offenses<and give fair warning to all persons concerning the nature of the conduct prohibited the penalties authori3ed upon conviction; (b) Deterrent influence" rehabilitation" punishment; (c) %rescribe penalties that are proportionate; (d) %revent arbitrary or oppressive treatment D82DI!?2I=E /ohn Braithwaite 0 Philip Pettit1 23ot /ust %eserts4 &1..5) In the 1F4GCs came the view that utilitarian doctrines had failed. 6lso" indeterminate sentences" on the grounds of rehabilitation or incapacitation" allowed offenders to be loc'ed up until they were +safe, to be returned to the community. /entencing became more determinate" but also very harsh in a way that was hard to :ustify in retributive terms. 6./. 7cClos8ey1 29 3on: tilitarian 9pproach to Punishment4 &1..;) 2here can be punishment of the innocent (e.g. mentally ill) where it is believed to be useful to society. Ie may deter others by framing an innocent man who is generally believed to be guilty. 6er#ert 7orris1 2On <uilt 0 =nnocence4 &1.>?) 6 person who fails to e&ercise self-restraint renounces a burden that others have assumed thus gains an unfair advantage. It is reasonable that those who comply be assured that they will not assume burdens that others wonCt Bairness dictates e9ual distribution of benefits burdens. It is fair to punish those who violate rules # he owes something to others" for he has something that does not rightfully belong to him. /ean 6ampton1 2Punishment as %efeat4 &1.--) 2hose who wrong others demean them. 2hey incorrectly assume that their own value is high enough to ma'e this treatment permissible. 2he retributivist demands that the false claim be corrected. Defeating the +Haster,. ?2I>I26DI6EI/H # D828DD8EC8 # Bocus on *uman Dationality /eremy Bentham1 2The Theory of Legislation4 2here are ) instances in which punishment ought not to be inflicted@ (1) %unishments Hisapplied # where there is no real offense; where the evil is more than compensated by an attendant good; ($) Inefficacious %unishments # Ihich will have no tendency toward the prevention of li'e acts (e.g. where the person acted w.o intention" or was coerced); (() /uperfluous %unishments # Ihere he end may be achieved by more mild means.; ()) %unishments 2oo 8&pensive # If the punishment will produce more suffering than it prevents. 2he following evils are produced by every penal law@ (1) Coercion # it imposes a privation; ($) /ufferings caused by the punishment itself; (() 6pprehension of those who fear prosecution; ()) 8vils of false prosecutions; (-) 8vil suffered by parents or friends.

/eremy Bentham1 2The Theory of Legislation4 1st rule # 2he evil of punishment must e&ceed the advantage of the offense. %erson must dread punishment more than they desire the offense. $nd Dule # 2he more deficient in certainty a punishment" the severer it should be. (rd Dule # Ihere $ offenses are in con:unction" the greater offense ought to be sub:ected to severer punishment" in order that the delin9uent may have a motive to stop at the lesser. )th Dule # 2he greater an offense is" the greater reason there is to ha3ard a severe punishment for the chance of preventing it. D8*6!I>I262I=E -Ias endorsed by early utilitarian reformers li'e !entham; was the original program of prisons. 7ichel Foucault1 2%iscipline 0 Punish4 (6gainst Dehabilitation) 2he body as the ma:or target of penal repression disappeared; /hift to the soul. 2orture came to be seen as an affront to human dignity. !enthamCs %anopticon is the architectural figure of this composition # %erception of constant surveillance. Ha'es the prisonerCs soul sub:ected to affronts to human dignity. Imprisonment may even be worse than torture. Dehabilitation may actually be brainwashing. 7ichael Tonry1 27align 3eglect4 &1..;) ( %ro Dehabilitation) Increased investment in drug treatment is powerful. Ihen drug use declines" offending declines. /hould be on demand compulsory in some cases. IEC6%6CI262I=E /ames Wilson1 2Thin8ing 9#out Crime4 Ihen criminals are deprived of their liberty" they canCt commit offenses. 2his does not re9uire any particular belief about human nature (e.g. rational). Bocus is on repeat offenders who commit the ma:ority of crime. !8J=ED ?2I>I2J D8/8D2 /ean 6ampton1 2Punishment as %efeat4 2hose who wrong others demean them. 2hey incorrectly believe that their own value is high enough to ma'e this treatment permissible. 2he retributivist demands that the false claim be corrected. %D=%=D2I=E6>I2J +olem v. 6elm &1.-$) Issue@ Does the 5th 6mdt proscribe a life sentence w.o possibility of parole for a seventh non-violent felony. (5th 6mdt@ Includes no cruel unusual punishments) %rocedure *olding@ Han arrested for passing a bad chec' for K1GG" his 4th offense. C=6 held that this was grossly disproportionate. 2his court affirms. 6 CDIHIE6> /8E28EC8 H?/2 !8 %D=%=D2I=E628 2= 2*8 CDIH8. 2he ob:ective criteria for determining this are@ (1) 2he gravity of the offense; ($) 2he sentences imposed on other criminals in the same :urisdiction; (() /entences imposed for commission of the same crime in other :urisdictions.

;;;;; 'L'7'3T+ OF T6' C"=7=39L OFF'3+' 6 criminal offense is@ (1) a culpable actorCs; ($) unlawful (must be by statute@ legality); (() act (actus reus); ()) wrongfully; (-) endangering a protected public interest and (sometimes); (1) causing a harmful conse9uence. 6 criminal offense consists of $ main elements@ (1) 6ctus Deus (a bad act)" the physical or e&ternal portion of the crime ($) Hens Dea (a guilty state of mind)" the mental portion of the crime. 9ctus "eus &9ct "e@uirement), Consists of three ingredients@ (1) a voluntary act; ($) that causes; (() social harm. It is based on the retributive belief that it is morally wrong to punish people for their unacted-upon intentions. Ie donCt want to punish types of people (e.g. poor). Ie want to protect free speech the ability to change oneCs mind. Aamir@ 6ctus Deus # ( Components 1. 6ct (mandatory) $. Circumstance (always there) # something that is there while the defendant is acting" but is not altered by the defendantCs conduct (building in front of which murder occurred). (. Conse9uence (not necessary mandatory) # >ive person becomes a dead one. !ut" merely carrying a weapon has no conse9uences. (8.g. 6ct- carrying a gun w.o permit # necessary; Circum L gun # w.o gun there is no offense; Conse9uence # none in this case) Conse9uence =ffenses@ Ihere the law is determined by the harmful conse9uence (e.g. murder). =ther laws are based upon the act committed (e.g. rape)" rather than the conse9uences. Proctor v. +tate &CO9 O8la. 1.1-) Han was convicted of 'eeping a place with intent to unlawfully sell li9uor. 2he conviction is vacated here because to +constitute a crime there must be some commission or omission., 2he bad intent (mens rea) and the bad act (actus reus) must concur in time. C=E2D6/2 II2* 2*8 B=>>=IIEM $ C6/8/@ /tate v. %almer (C=6 Iash. 1F4G) # ?pholding the crime of possession of burglary tools. %eople v. 0alot (C=6 Hich. 1F41) # Han found guilty of drug possession where a friend brought drugs into his hotel room. 2he court said that the defendant +acted, by having control of the drugs because they were in his room. %roblem@ Is this really an +act,N ;;;;; F9=L "' TO 9CT C93 B' 93 29CT4 =mission v. 6ct@ AatB, 1./omeone who fails to prevent a harm that wouldCve occurred anyway fails to give away something he owns. $. 2he person who brings harm that wouldnCt have normally occurred ta'es away something owned by someone else.

-2he $nd offends the autonomy of the victim. Ie feel strongly that this should not be allowed. /ones v. + &%C Cir. 1.?!) Identified ) situations in which the failure to act may constitute a breach of a legal duty@ (1) where a statute imposes a duty to care for another; ($) where one stands in a certain status relationship to another; (() where one has assumed a contractual duty to care for another; and ()) where one has voluntarily assumed the care of another and so secluded the helpless person as to prevent others from rendering aid. /88 8O6H%>8/@ Commonwealth v. %estini'as(%a. /uper. 1FF$) # Halnutrition. Bailure to fulfill an oral contract to care for an elderly person can sustain a conviction for murder where malice is indicated. Degren v. /tate (Hd. 1FFF) # 6n adult with supervising responsibility of a child may be found guilty of child se&ual abuse if the adult fails to prevent abuse by another. "'C ="'7'3T OF DOL 3T9"=3'++ People v. 3ewton &1.>$) # Han brought gun on plane. %lane was diverted to EJ where he was arrested under EJ law. %etitioner was not sub:ect to criminal liability by virtue of a voluntary act. 2he plane was not scheduled to enter ?nited /tates territory. 7artin v. +tate &CO9 9la. 1.EE) %olice brought drun'en man into public" then charged him with public drun'enness. Conviction overturned. 2he criminal act must be voluntary. =nvoluntary 9cts, 2he Hodel %enal Code considers refle&es" bodily motions during sleep" conduct during hypnosis" and bodily movements otherwise not a product of the determination of the actor to be involuntary. %eople v. Decina (1F-1) # Defendant found criminally liable for car accident deaths where he had an epileptic sei3ure" because he 'new that such a sei3ure might occur at any time. T6' P"O6=B=T=O3 OF 4+T9T +4 C"=7'+ "o#inson v. California &1.?!) De@ 6 C6 statute that made it a criminal offense to +be addicted to the use of narcotics,. *eld@ Earcotics addiction is an illness. It would be cruel unusual punishment in violation of the 1)th 6mdt to imprison someone based upon their status as ill. %owell v. 2e&as (1F15) # Did not allow the same defense for alcoholism where his problem wasnCt for being drun' (which may not be of his volition)" but for being drun' in public. Concur (Ihite)@ /ays that even where there is an irresistible compulsion to drin'" a man may not be shielded from conviction when he 'nowingly failed to ta'e

reasonable precautions against committing a criminal act" here the act of going to<a public place. %ottinger v. City of Hiami (/.D. Bla. 1FF$) %laintiffs complain that HiamiCs practice of arresting homeless people for the basic activities of life (e.g. sleeping" eating) is a violation of the 5th 6mdt ban against cruel unusual punishment. Court agreed based on the involuntariness of the activities given the unavailability of low-income housing. 7oyce v. /an Brancisco (E.D. Cal. 1FF)) Came away with a different result than Pottinger stating that homelessness is not a totally-involuntary status li'e race" gender" illness. (*omelessness is controllable" but not reducible to an act. Can be punished.) /ohnson v. +tate &Fla. 1..!) Issue@ Can a woman be prosecuted for the +delivery, of cocaine to her children via blood flowing thru the umbilical cordN *eld@ 2he legislature did not intend this definition of +delivery,. 6nd" this is a bad policy because it divides families and encourages substance abusers to avoid medical care. Douglas *usa'@ =ne idea is to focus on who is in control of he situation that caused the harm@ ?sing Dobinson v. California as an e&ample@ Deducible to an 6ct Eot Deducible to an 6ct Controlled Ihite (dissent) # 2he act is Debate on whether this bo& the use of drugs" which one can be a crime (*arlanLyes" can control at least at 1st 7oyce v. /B L no) *arlan (Concur) falls on this line in between says this canCt be a crime. It might be controlled" but there is no act. ?n-Controlled Can be a crime (%owell v /tewart (holding) # ?/) 6ddiction is not an act" nor can it be controlled" therefore it canCt be a crime ;;;;; L'<9L=TF &2Fair Warning4) Legality # 6 person may not be punished unless her conduct was defined as criminal before she acted. 2his principle has ( corollaries@ (1) Criminal statutes should be understandable to reasonable" law-abiding people ($) Criminal statutes should be crafted so as not to delegate basic policy matters to policemen" :udges :uries for resolution on an ad hoc and sub:ective basis. (() 7udicial interpretation of ambiguous statutes should be biased in favor of the accused (lenity dioctrine). Aeeler v. +uperior Court &Calif. 1.>5) Bacts@ Han punched his pregnant e&-wife in the stomach. Betus died. *e was prosecuted for murder # +the unlawful 'illing of a human being., *e claimed that the fetus was not a +human being, under the law. *eld@ 2he

legislature did not consider a fetus to be a +human being,. 2he court does not have the right to define crimes. 6nd" without fair warning that an act is a crime" there is a violation of due process of law. (%rohibition of e& post facto laws). %eople v. 0an 6lstyne (Cal. 6pp. 1F4-) Han arrested for selling mari:uana. *e claimed that the statute only specified one type of mari:uana" and it wasnCt the type he sold. 2he court held that it was widely 'nown that the laws were intended to ban the selling of all types of mari:uana. +P'C=F=C=TF City of Chicago v. 7orales &1...) Chicago City Council enacted a criminal ordinance that prohibited +criminal street gang members, from +loitering, with one another or with other people in a public place. 2he /.Ct. of I> held that the ordinance violated the due %rocess Clause of the 1)th 6mdt. 2his court affirmed" as the ordinance was unconstitutionally vague. (8.g. *ow far must loiterers go after the disperseN) It provided absolute discretion to the police to determine what constituted loitering. 2hus" the ordinance could be applied by the police to attac' innocent activity. Eote@ If it were written more narrowly (e.g. prohibiting intimidating activity by gang members) it would be constitutional. ;;;;;

Causation
-Causation of harm is a sub:ective conclusion that" absent :ustifying conditions" the defendant has wronged someone. -2he causation of some harmful conse9uence is part of the act element of many offenses" though not of all. Conversely" the act element of many crimes consists only in the causing of some result. 2hus the act element of most crimes of homicide is simply the causing of a personCs death. Four +trategies for Limiting Causation, 1. !ut-Bor Causation # +!ut for, which the harmful result would not have occurred. $. Boreseeability # De9uires a connection between the actorCs culpable mental state the result. Eegligent action causes harm only if it leads to harm that is reasonably foreseeable (. Intervening 8vents # Does an intervening event +brea' the chain, of causality. 2his may occur when the intervening event was a necessary condition for the harmful result" and was not caused by the defendantCs act. ). Duties # Ihere passive conduct is a necessary condition for a result" it must be combined with a duty to act to constitute a cause. -Consider whether something is necessary" sufficient foreseeability is necessary. foreseeable DonCt need all # only

Thin +8ull "ule # Jou accept the victim a PsQhe is. Jou canCt cite something as an intervening factor if what happened was merely unli'ely.worse than you thought. (8.g. if victim is 7ehovahCs Iitness who refuses medical help # you are still responsible for death).

-Common law rule@ Causation ends a year 1 day after the event. -In order to determine causation common law courts re9uire that causation must be necessary and.or sufficient; and foreseeable. (Hust have foreseeablility 6ED necessity =D sufficiency) -Intervening Bactor # Ihen totally unforeseeable. 9. 2B T FO"4 C9 +9T=O3 "egina v. 7artin %yos &'ng. 1.>.) #Jouths fighting after a dance. =ne is 'illed by either one of $ blows to the head. =ne youth was clearly responsible for one of those blows. /hould he be found guilty of murderN *eld@ 2hat youthCs act canCt be held to be the cause of death if that would or could have occurred without it. Desult Crimes # Ihere the result determines the crime (e.g. homicide). B. P"OG=79T' C9 +', FO"'+''9B=L=TF California 7ury Instruction 5.-- defines pro&imate cause as on that produces the result by a +natural and continuous se9uence,. %. C9 +9T=O3 BF O7=++=O3, % T='+ People v. Bear*sley &7ich. 1.5>) # During an adulterous wee'end a woman too' morphine. *er lover brought her to a downstairs apartment so as not to be discovered by his wife. /he died. 2he trial court found him guilty of manslaughter. 2his court reverses" finding no duty in this case. %rof. Mraham *ughes@ Calls for a generali3ed duty to prevent foreseeable harm. +In a civili3ed society" a man who finds himself with a helplessly ill person who has no other source of aid should be under a duty to summon help., %rof. Meorge Bletcher@ /ays that the sources of obligation recogni3ed by the Beardsley decision should be more numerous. +2he binding together of people to confront common ris's entails reciprocal duties of aid,. Cites clear cases as sailors going to see astronauts together in a spaceship. -In general" where one person has a duty to see' medical attention for anotherCs illness or in:ury" this duty is unaffected by the source of the other personCs malady. -!ut" %rof. Bletcher suggests that creating ris' should impose a duty to avert harm only if the actor is at fault for creating the ris'. Clear Cut e&amples@ Criminally culpable for causing the original state of distress L Duty; /elf-Defense L E= D?2J. It get confusing in the middle ground" where the defendant causes the distress w.o intending harm (e.g. car accident). Commonwealth v. Cali (Hass. 1F$() - Duty to e&tinguish fire where man started fire for insurance purposes.

%almer v. /tate (1F1G) # Duty to protect child from beatings by her lover. >iable because death was a foreseeable conse9uence of such beatings. %almerCs negligence pro&imately caused her childCs death. (/ee also State v. Legg where the court implied that a foreseeable ris' of in:ury suffices where mother didnCt stop beating of child by father.) >oo'ing at =missions # Is there a dutyN If so" loo' at +necessity as' would this have occurred if the person fulfilled their duty. sufficiency, and

%eople v. Aevor'ian (Hich. 1FF)) # Issue is the pressure put on the +victim, by their families to die. Concern that wea' people are under duress. ;;;;;

7'3+ "'9
-/ee a ton of hypos in the noteboo' 7ens "ea The <uilty 7in* 2he criminal law generally conceives bad thoughts as (1) the desire to harm others or violate some other social duty; or ($) disregard for the welfare of others or for some other social duty. =ne can manifest a +guilty mind," or mens rea" by implementing an ignoble desire" or by acting uninfluenced by a noble desire" such as concern for the safety of others. -8very element of the actor reus must adhere to a re9uirement of mens rea. "egina v. Faul8ner &=relan* 1->>) /ailor accidentally set fire to a ship while attempting to steal rum. 2his court overturned a lower court decision finding him guilty sentencing him to 4 years. 2he defendant should intend the act with which he is charged" or that it was the necessary or foreseeable conse9uence of some other felonious or criminal act. -Bor attempts (non-complete offenses) the prosecution must prove purpose (that the defendant was aware of the situation purposely intended it to happen. -Bor +Anowingly, +%urposely, there is a presumption that people 'now the natural conse9uences of their actions. Ideas@ (1) Intentional.%urposely # Defendant not only 'new what he was doing" but intended it to happen (!est standard for defendant). ($) Anowingly # %rosecution must prove that the defendant 'new what they were doing and.or the re9uired circumstances e&isted and.or that the result would occur. (() Dec'lessly # Ihere the defendant 'new there was a ris' too' it anyway ()) Eegligently # *e should have been aware (as a reasonable person would have). DonCt need to prove mens rea. (-) /trict >iability # Eo mens rea necessary. !est standard for prosecution.

1G

R P "PO+'LF (highest level of mens rea) A3OW=3<LF

7o*el Penal Co*e H !.5!&!) Culpa#ility %efinitions Circumstance Desult Conduct he is aware of such it is his conscious it is his conscious circumstances or ob:ect<to cause ob:ect to engage in hopes believes such a result conduct of that they e&ist nature. he is aware<that such circumstances e&ist he is aware that it is he is aware that his practically certain conduct is of that that his conduct will nature cause such a result

W=LLF L BL=3%3'++ # is not in the H%C" but it would appear here if it were (see below) "'CAL'++LF he consciously (2he lowest standard disregards a re9uiring mens rea. substantial it is the default if a un:ustifiable ris' that standard is not the material element mentioned in the law) e&ists (?sing reasonable person standard # we thin' you were aware) 3'<L=<'3TLF a reasonable person would be aware of a substantial un:ustifiable ris' that the material element e&ists he consciously disregards a substantial un:ustifiable ris' that the material element< will result from his conduct. 6wareness@ 6ctor is aware that his conduct disregards a ris'. (aware of conduct" not of drugs themselves" for e&ample.

a reasonable person would be aware of a substantial un:ustifiable ris' that the material element<will result from his conduct.

Willful Blin*ness # Bound in H%C $.G$(4) (substitutes for 'nowingly) - +Ihen 'nowledge of the e&istence of a particular fact is an element of an offense" such 'nowledge is established if a person is aware of a high probability of its e&istence" unless he actually believes that it does not e&ist., -=nly apples to the 'nowingly circumstance -Ha'es it a bit easier on the prosecution a bit more difficult on the defense. %rosecution only need to prove the awareness of a high probability that the circumstance e&ists # a lower bar for the prosecution to prove 'nowingly. -Confusion between H%C $.G$(() ()) # %aul Dobinson says we should read H%C $.G$()) to be limited to only that clause of the statute" not the whole statute.

11

(e.g. # Clause 1@ +Ihoever sells into&icating li9uor to, (Dec'lessly) Clause $@ +one whom he 'nows to be a cop, (Anowingly) -?nder DobinsonCs rules +'nows, wont modify +sells, -Host verbs will be considered conduct. -If a result is re9uired it will be specified (homicide # +causing death, is the result) Desult 0erbs # e.g. damages" destroys" obstructs" 'ills. 8ach one re9uires an impact on another. Desult # Conse9uence of conduct. /pecific Intent Crimes # Crimes done with a specific purpose in mind (e.g. +with the purpose of obstructing the peace.,). It is a mens rea re9uirement that is not attached to any actus reus element. /pecific Intent is not listed in the H%C S$.G$($) chart above. -Ihere there are $ ways of interpreting a law we must choose the interpretation that is most favorable to the defendant. >i'ely to =ccur # is a rec'less standard. Paul "o#inson # Idea@ 2he mens rea standard only applies to each clause individually. 8ach clause in a statute must be construed separately. If the level of mens rea is unclear we use the H%C S$.G$ rec'lessness default. -Distinguish between circumstances the action it is a circumstance. results@ If the item remains unchanged throughout

-If we cannot prove every element of an offense then there is no offense. 7=+T9A' -Can apply the mista'e doctrine only to those elements where there is a mista'e. 1. Hista'e of Bact # *e thought the umbrella was his. $. Hista'e of Moverning >aw # *e thought you could ta'e any umbrella (*e didnCt reali3e it was against the law). (/ee US v. Ba er) (. Hista'e of Eon-Moverning >aw # Hista'e of a law that is not the main law in 9uestion. (8.g. Anew about the law against theft of umbrellas" but didnCt 'now about law that made all umbrellas property of the state). (/ee People v. Bray; Regina v. Smith) -T1 T( can be used as defenses; T$ is never a viable defense. ;;;;; People v. "yan &CO9 3F 1..$) De@ law ma'ing it a felony to 'nowingly unlawfully possess 1$- milligrams of a hallucinogen. Issue@ Hust the defendant 'now the weight of the material possessedN *eld@ Jes. 2he purpose of he 'nowledge re9uirement is to avoid over-penali3ing someone who unwittingly possesses a larger amount of a controlled substance than anticipated. =rder reversed indictment dismissed.

1$

;;;;; /tate v. >ima (DI 1F55) - Defendant was convicted of putting child into a tub of scalding water. 2he trial :udge committed an error in refusing to instruct the :ury that an intentional act is re9uired to convict under the statute. /tate v. Muest (6las'a /up. Ct. 1F45) # Does an honest reasonable mista'e of fact regarding a victimCs age serve as a defense to a charge of statutory rapeN Jes. 2o refuse such a defense would be to impose criminal liability w.o any criminal mental element. Hodel %enal Code S$.G)($)@ deals specifically with the problem of mista'e grading. 2he defense of ignorance or mista'e is not available if the defendant would be guilty of another offense had the situation been as he supposed. In such case" however" the ignorance or mista'e of the defendant shall reduce the grade degree of the offense. ;;;;; 7ista8e of Fact %efense # (Brom the common law" but now in H%C) If the defendant proves that" because of a mista'e of fact" he didnCt possess the mens rea" then he is not guilty. 2his is an affirmative defense in that it allocates the burden of production (not proof) to the defendant. ;;;;; People v. Bray &CO9 Cal. 1.>;) D8@ Hista'e of Eon-Moverning >aw 6ppeal of a conviction for being a felon in possession of a concealable firearm. Han didnCt 'now that he was a felon. Issue@ Does the statute re9uire proof of the defendantCs 'nowledge of his felony statusN *eld@ Jes. Instructions on this matter should have been given. ;;;;; Degina v. /mith (!rit. 1F4)) # D8@ Hista'e of Eon-Moverning >aw Court dismissed the charge of damaging the property of another on the ground that the prosecution had not proven that the defendant did so intentionally. ;;;;; + v. Ba8er &;th Cir.) - D8@ Hista'e of Moverning >aw 6ppeal of a conviction for traffic'ing in counterfeit goods. Issue@ /hould the :ury have been told that an element of that offense is 'nowledge of the criminality of the conductN *eld@ Eo. Ie must distinguish between two different situations@ (1) that in which the defendant lac's the mental state re9uired for commission of the crime and thus has a valid defense; and ($) that in which the defendant still had whatever mental state is re9uired for commission of the crime and only claims that he is unaware that such conduct was proscribed by criminal law" which isnCt usually recogni3ed as a defense. Idea@ 6 defendant canCt avoid prosecution by simply claiming that he hasnCt brushed up on the law. Hista'e of Moverning >aw # Is no defense where +governing law, means the definition of the offense committed. =n this principle" the defendant may be ac9uitted for ignorance that conditions specified in the definition were present; but may not be ac9uitted merely because she didnCt 'now that such conditions constituted defining elements of a proscribed offense.

1(

*op'ins v. /tate (Hd. 1F-G) # ?pheld a conviction for violating the law ma'ing it unlawful to erect a sign aiding in the solicitation of marriages" despite the fact that the attorney general told the defendant that it was =A. Idea@ Ignorance of the law ordinarily does not give immunity from punishment for a crime. (D could have argued mista'e of non-governing law@ *e didnCt 'now that the 6M couldnCt ma'e pronouncements of law.) ;;;;; Wayne LaFave1 2Criminal Law, Chapter ;.1, =gnorance or 7ista8e4 Meneral Idea@ Ignorance or mista'e as to the penal law is no defense. -Ignorance or mista'e as to a matter of fact or law is a defense if it negatives a mental state re9uired to establish a material element of the crime. -!ut if the D would be guilty of another crime had the situation been as he believed" they he may be convicted of the offense of which he would be guilty had the situation been as he believed. -6bsence of words in a statute re9uiring a certain mental state does not warrant the assumption that the legislature intended to impose strict liability. -Idea@ /ome varieties of ignorance mista'e should not be a defense # those which indicate that the D still indicated to do what constitutes a legal or moral wrong. (6 guilty mind should suffice for the imposition of penal sanctions.) 2he defense of ignorance or mista'e may only be used where the D can say he observed the community ethic. -La!ave says this position is unsound. It is too difficult to determine what the community ethic is. In considering the defense" we must distinguish between@ (1) Ihere the D lac's the mental state re9uired for commission of the crime and thus has a valid defense" and ($) 2hat is which the D still had whatever mental stated is needed for commission of the crime only claims that he was unaware that such conduct was proscribed by law # not a recogni3ed defense. (2o allow an ignorance-of-the-criminal-law defense would allow it to be a shield for the guilty bacuase it is hard to refute would re9uire far-reaching in9uiries. Leo AatB1 2Ba* 9cts 0 <uilty 7in*s4 # 6 more philosophical view of mista'e@ Types of 7ista8es in Fact, 1. Hista'e in ID of victim (e.g. thought he was shooting a ghost) # 2his is a valid mista'e of fact in Mermany. In the ?/ it is no e&cuse" where mens rea means only intent to 'ill a person # not the specific one.. $. Hista'e in the effect of the action (e.g. poison apple meant for wife 'ills daughter) (. Hista'e in ID of prey (e.g. 'ills wrong passerby" but was intending to 'ill the person he was shooting at). 2his type of mista'e of fact doesnCt wor' anywhere. Hisdemeanor # >ess harmful offenses than felonies. Menerally" anything punishable by less than 1 year in prison.

1)

6O7=C=%'
-Host states have not adopted the H%C definition of homicide. ->aw has developed thru the common law. H?DD8D Intentional ?nintentional (1) Intentional Hurder (p.(1(-4F) (H%C S$1G.$) ($) ?nintentional Hurder (Belony Hurder Dule) (H%C S$1G.$(1)(b)) /ummaries of the Case >aw (1) Intentional Hurder # Halice aforethought re9uired. ?n:ustified 'illing of a living human being manifesting@ 1. %urpose to cause death; or $. Intent to inflict serious bodily harm. ($) ?nintentional Hurder (Belony Hurder Dule is a subset of this) # 8&treme rec'lessness with respect to a serious ris' of harm to anotherCs life where the ris'y action manifests so unworthy or immoral a purpose as to suggest callous indifference to human life. Iillingness to underta'e even a very small ris' of death where the ris'y conduct is so unworthy as to establish guilt of a serious felony. (() Intentional (0oluntary) Hanslaughter # Eo malice. Intentional 'illing that is either committed in the heat of passion" caused by ade9uate provocation or is based on an honest but unreasonable mista'e such as a wrong belief that the 'illing was necessary for self-defense. (=r diminished capacity) ()) ?nintentional (Involuntary) Hanslaughter # Dec'less manslaughter.negligent homicide. *omicide in which there is no intention to 'ill or do grievous bodily harm" but that is committed with criminal negligence or during the commission of a crime not included within the felony-murder rule. H6E/>6?M*28D (*omicide w.o Halice) (() Intentional (0oluntary) Hanslaughter (p. (5G-)G$) (H%C S$1G.((1)(b)) ()) ?nintentional (Involuntary) Hanslaughter (H%C S$1G.((1)(a)) S$1G.)(1); S$1G.-

=3T'3T=O39L 6O7=C=%'
9. =ntentional 7ur*er &+econ* %egree)
Intent to 'ill establishes the +malice aforethought, necessary for murder. Eeed conduct 'nowledge (that this is going to cause death) =D purpose (desire). Eote@ Intention is sub:ective" unli'e rec'lessness (ob:ective standard) Francis v. Fran8lin &1.-;)

1-

Han escaping prison with gun 'noc's on door. Ihen man opens it he sees gun slams door. Mun allegedly +goes off," shoot thru the door 'ills man. D says the shooting was accidental response to door slamming. Bound guilty" the man appeals :ury instructions that shifted to the D the burden of persuasion on intent. %rosecution as'ed that it should be presumed that the defendant desired death as an outcome ('nowledge purpose). =verturned. 2he Due %rocess Clause wonCt allow :ury instructions that relieve the /tate of its burden of proof on intent. %rof. >loyd Ieinreb - In general" if the actor is aware that the li'elihood of death resulting from his conduct goes to the level of certainty or near-certainty" the element of intent is satisfied. H%C S$1G.$(1)(a) # !oth purposeful 'nowing homicides are classified as murder (absent a :ustification or e&cuse). 2he prosecution must establish that the D engaged in conduct with the conscious ob:ective of causing death of another or at least with awareness that death was practically certain to result. (2he state of mind may be proved circumstantially # /ee US v. "atson below). 2ransferred Intent # 6 D is considered guilty. 2he intent to 'ill one person in transferred to the unintended 'illing of another person. If the defendant has completed the necessary actus reus" then the mens rea is transferred from the intended target to the victim. 2he intent to 'ill a human is present" even if not the human who actually died. (Eot available in Mermany" for e&ample" where the intent is dependent on the particular person.)

B. Preme*itate* 7ur*er &First %egree)

-Eot :ust purpose near-certainty ('nowledge)" but planning desiring. 2he main factors to consider are the length of time involved whether the actorCs blood is hot or cold. + v. Watson &%C CO9 1.-;) Han escaping prison struggles with shoots policeman. 2he lower court said that there was significant circumstantial evidence to infer intent. 2his court affirms. Court also says that +no specific amount of time is necessary to demonstrate premeditation deliberation," but +some appreciable time must elapse., 6ustin v. ?/ (DC Cir. 1F14) Cites 1st degree murder as +committed in cold blood,; $nd degree as +committed on impulse or in the sudden heat of passion., -/ome courts have refused to read any e&press duration re9uirement into the definition of premeditation@ Commonwealth v. /cott (%a. 1F-G) # +it was for the :ury to say<whether <D formed in his mind the conscious purpose of ta'ing life., -2he H%C solved the problem of distinguishing between premeditated +merely intentional, murder by abandoning the distinction altogether. 6ny intentional murder

11

(including +premeditated,) is Birst Degree. /ince the death penalty is no longer automatic for the 1st 'ind" the distinction is needed anymore. Commonwealth v. Mould (Hass. 1F5G) # /chi3ophrenic man was allowed to offer evidence that even if he was guilty of an intentional 'illing" he was unable to premeditate one. C. DOL 3T9"F 793+L9 <6T'" Differs from involuntary manslaughter in that it is intentional@ the D has with 'nowledge or purpose 'illed another human rather than having done so with gross negligence or rec'lessness or merely with intent to commit another crime. 2he criminal law reduces the murder to voluntary manslaughter where there has been +provocation, that has caused the D to act in the +heat of passion., 7ustifiable 6ct # 2he act is completely =A you are completely e&onerated. 8&cusable 6ct # 2he act may not be :ustifiable" but it is e&cusable. (morally bad" but understandable under the circumstances) %artial 7ustification # Ihere you prove you didnCt commit intentional murder" but merely intentional manslaughter. -It is unclear whether provocation is a partial :ustification or partial e&cuse. 2his ma'es it problematic to implement. /eremy 6or*er 2Provocation4 # /ays it is a partial :ustification because of our honor codes (more below). /omeone may ta'e honor form you (e.g. by being braver than you or ta'ing your wife away). In honor society you can be redeemed by ta'ing more (e.g. life) from the violator than he too' from you (e.g. wife). 2his is what a reasonable man in an honor society does.

6onor Co*e +ocieties, Ihere a man can accumulate honor (distinction" status"
property)" it can be easily lost" tarnished. Jou can recover by ta'ing that much honor" plus a little more" away from the person who too' it form you. (8.g. Icelandic !loodfeuds # these can lead to the annihilation of a culture.) In some societies (e.g. !ritain) duels are created" so that the feud is limited to individuals. 6 reasonable man in such a culture doesnCt forgive forget. It is honorable" reasonable to see' revenge. If you donCt" you dishonor your family.clan. -%rovocation had been created by courts in the honor code era. 2his era focused on :ustifiability of acting" not merely e&cusing the bad conduct. -In 8urope" the 8nlightenment brought a focus on reason away from these ideas. (Idea@ Han is rational;.respect the autonomy of the other). 6 reasonable man is rational" can control himself # no longer focus on passion.honor. !ut" he may lose rationality for a short time in e&treme circumstances. %rovocation is traditionally limited to@ %hysical attac' by the victim" mutual combat witness to adultery. >ater added witness to attac's on family" unlawful arrest.

14

-2here is a re9uirement of proportionality that is remnant from the honor code days. -2hat the actorsC blood be hot is from the era of the 8nlightenment (this is a focus on e&cusing +bad, conduct" not :ustifiability) 7o*ern Provocation, Courts must find that a person@ (a) Ias provo'ed (sub:ective) (b) Ias provo'ed in a way that a reasonable man would be (ob:ective) -/ee H%C comments to S$1G.( Diews "egar*ing the Bur*en of Proving Provocation &vary #y Iuris*iction), 1-If the defendant merely says he was provo'ed" it is up to the prosecution to show that he wasnCt $-/ome states have changed this to@ 2he defendant must show provocation by a preponderance of the evidence. People v. Wal8er &CO9 =ll. 1.?;) =ne man came at others with a 'nife. 2he others 'noc'ed him out with a bric'. =ne man too' his 'nife stabbed him. D contends that finding of murder should be dropped to voluntary manslaughter because he acted in hot blood. Court agreed reduced crime. /ome reasons to reduce an unlawful intentional 'illing from murder to manslaughter@ -%rovocation -In mista'en belief of self-defense -Ihere there was a real threat" but the D provo'ed the threat. H%C Commentaries to S$1G.( re@ provocation@ %rovocation has $ essential re9uirements@ 1. Hust be +ade9uate, (ob:ective standard) # it is if it would cause a reasonable person to lose self-control. ?sually the provocation must arise from some action of the deceased. %hysical attac' usually suffices" mutual combat" witnessing adultery" unlawful arrest. Iords alone do not amount to ade9uate provocation. $. (/ub:ective) 2he D must have been provo'ed have actually acted in response to the provocation. "easons for 7itigation, 1. %artial 7ustification # Ihere the provo'ed 'iller wrongly thin's he has a good reason to 'ill (e.g. e&cessive reaction to real threat)" he deserves some punishment" but not as much as a unprovo'ed 'iller (retributivism). $. %artial 8&cuse # Ihere the actor is so enraged that his actions are slightly less voluntary. 2he 'illing is less ascribable to malevolent character (retributivism)" and it is less deterrable (utilitarianism). 0iews on !urden of %roof@

15

1. (=ld Common >aw) # =nce the D comes forth with evidence of provocation" the prosecution must disprove provocation or heat of passion beyond a reasonable doubt. (2his is the policy of the H%C). $. (Host /tates) # De9uire the D to prove 88D (e&treme emotional disturbance) as an affirmative defense" by the preponderance of the evidence. 9% LT'"F "owlan* v. +tate &7iss. 1.5E) Han 'illed wife while firing at the man she was committing adultery with. Deduced from murder to manslaughter. %rice v. /tate (2e&. Ct. 6pp. 155-) # %ositive proof of the crime of adultery is not re9uired. It may be established by circumstantial evidence. Ihere not witnessing it" but 'nowing it is happening" in an overpowering passion 'ills the wrong-doer" the offense is reduced to manslaughter. Degina v. Hawgridge (14G4) # 6dultery is the highest invasion of property. *onor Defense # /ome states allowed husbands to use the defense of protecting their honor (re@ adultery). +tate v. FanB &in Conn. 1.51) # 2he court allowed the provocation defense where the D (possibly wrongly) thought his wife was committing adultery. (2a'es a post8nlightenment view@ Binds that there is an e&cuse for bad conduct.) Dissent said this shouldnCt be allowed" because the victim was not an aggressor" as he presumably would be if he was actually committing adultery. 2his ta'es an honor code view by saying that 'illing was not :ustified. 6dultery in a Hodern Conte&t # Menerally allowed only where the 'iller discovers the spouse and lover in the act (or immediately before or after it)" and 'ills immediately after the discovery. COOOL=3< T=7' '( Parte Fraley &O8la. CO9 1.15) # Han 'illed person who had allegedly 'illed his son F months before. 2his was considered as too much time between the provocation the 'illing. (Cites cases citing ) hours and even 1- minutes as being enough to cool down) +=rdinarily one day" or even a half day" is in law much more than a sufficient time for oneCs passion to cool. Court says that there is no e&cuse" let alone :ustification. People v. Broo8s &Cal. 9pp. 1.-?) # Hanslaughter instruction allowed where D 'illed the murderer of his brother w.in $ hours of learning of the murder. +tate v. <ounagias &Wash. 1.1;) # De:ected the idea of cumulative provocation based on anger. (Ihere people 'ept reminding him of the humiliation of his rape.) /uch provocation is not sudden" uncontrollable anger. Dather it is evidence of brooding thought.

1F

People v. Tapia &Cal. 9pp. 1.--) # Cumulative provocation was allowed where it was based on fear of future events. (Ie e&pect passion to subside in the case of anger. !ut" with fear" the passion only grows.) -%rovocation contains elements of both partial :ustification blood L partial e&cuse" but not partial :ustification). partial e&cuse (e.g. hot

Dule@ Iords alone cannot produce provocation. -!ut" this doesnCt ma'e sense from an honor code view (response to words may be :ustified) or they may put you out of your head" which produces an e&cuse. 8&ception # Ihere the words give you information that if you had gotten in another way wouldCve provo'ed (e.g. +I :ust slept with your wife.,) %rovocation # Ie as' $ 9uestions@ 1. Iould a reasonable person have been provo'edN $. Ias the defendant actually provo'edN -%rovocation may only be an e&cuse.:ustification if the act happens immediately (more or less). Cumulative effect does not count as a provocation (see /tate v. Mounagias). 6dultery # 2reated as a provocation. (Eote@ =ne 2O case did not allow the defense of provocation where the woman shot her husband. It only applied to men. /hould there be a separate reasonable woman standardN -allowed in several states (esp. for se&ual harassment) -society encourages women to not be violent; so this standard may actually hurt women. H%C # ?ses an ob:ective view of what is reasonable (but" based on that person" not on their class # man.woman" white.blac'" etc). Eo separate standard for women" per se. =b:ective standard applies too. Can consider a +7apanese woman., In 2e&as # 6 spouseCs adultery canCt be used as an argument for provocation. 7atthew +hepar* Case # Defused to allow the +May %anic Defense,. !ut some courts still do" even though they involve only words. 7PC H!15.$ 7anslaughter # 6 criminal homicide constitutes manslaughter when a homicide which would otherwise be murder is committed under the influence of e&treme mental or emotional disturbance for which there is a reasonable e&planation. 2he reasonableness of such e&planation shall be determined from the viewpoint of a person in the actorCs situation under the circumstances as he believes them to be.

$G

->aw reform has permitted :uries to return a manslaughter verdict in cases where the D claims passion because the victim left" moved the furniture out" planned a divorce" or sought a protective order. Dictoria 3ouse@ 2his tends to discourage battered women from leaving. It treats women as lesser. !ut" would allow it where the 'iller 'ills his wifeCs rapist because there is e9uality between the se&es in this. /ac8 AatB, (Dighteous /laughter) Ailling a lover ma'es perverted sense as a way of preserving a relationship. If I canCt have you nobody can. Fear # 2he provocation doctrine is also critici3ed as e&cluding those who 'ill because of fear or other disorienting emotions. %eople v. 2apia # Hanslaughter instruction should be given where DCs 'illed after their victim" who had a reputation for violence" threatened to 'ill them is surprise attac's. Jouth =ther Bactors # #ir. $f Public Prosecutuions v. %amplin& 'ouse of Lords # court held that 1- year old D should be held to a standard of the reasonable person of his age" rather than a more abstract standard of the reasonable man. 2he H%C the Deasonable %erson # (from H%C commentaries) H%C says that reasonableness should be assessed + from the viewpoint of a person in the actorCs situation,. 2he word +situation, is intentionally ambiguous. 2he 9uestion is whether the actorCs loss of self-control can be understood in terms that arouse sympathy in the ordinary citi3en. 2hat is the function of the :ury. Cultural 3orms 0 the "easona#le Person (e.g. twice ?/ courts have accepted guilty pleas to manslaughter from 7apanese women who 'illed their children because their husbands shamed the families by committing adultery. (2radition of oya'o-shin:u) People v. Wu &CO9 Cal. 1..1) Chinese woman 'illed her son tried to 'ill herself. D argued that she 'illed the child herself so that they could be united in the afterlife" while they couldnCt in real life. 2he court held that the DCs cultural bac'ground could be relevant to her mental state thus such :ury instructions should be allowed reversed to allow such instructions. *er cultural bac'ground may offer alternative e&planations for her threats (she was referring to 'illing herself not her 'id) and it was relevant to the issue of malice aforethought. -Contrast where man smashed the head of his wife whom he suspected of infidelity. 2he cultural defense was not allowed because under Chinese law this was not acceptable conduct. Eote@ 2he H%C Commentaries sec $1G.( say that the emotional distress does not have to arise from some in:ury or affront from the victim. It can come from another source. 7O%'L P'39L CO%' "', 6O7=C=%' &7PC 9"T=CL' !15)

$1

S $1G.1 # Criminal *omicide@ (1) is when a paerson purposely" 'nowingly" rec'lessly or negligently causes the death of another human. ($) Criminal homicide is murder" manslaughter or negligent homicide. S$1G.$ # Hurder@ (/ame as common law Intentional Hurder) (1) Criminal homicide constitutes murder when@ (a) it is committed purposely or 'nowingly; or (b) it is committed rec'lessly under circumstances manifesting e&treme indifference to the value of human life. 2his rec'lessness is presumed if the actor is engaged in or flight after an attempt to commit certain serious offenses. (/ame as common law Belony Hurder Dule) ($) Hurder is a felony of the 1st degree # can bring sentence of death. S$1G.( # Hanslaughter@ (1)(a) it is committed rec'lessly (/ame as common law unintentional # or involuntary # manslaughter); or (b) it would otherwise be murder but there is an e&treme emotional disturbance (88D) for which there is a reasonable e&planation or e&cuse. 2he reasonableness is to be determined from the view of a person in the actorCs situation under the circumstances as he believes them to be. (/ame as common law intentional # or voluntary # manslaughter) ($) Hanslaughter is a felony of the $nd degree. S$1G.) # Eegligent *omicide (1) Criminal homicide constitutes negligent homicide when it is committed negligently ($) Eegligent homicide is a felony of the (rd degree. 7ayes v. People # >ogic of distinction between intentional unintentional murder. 2his case dealt with unintentional murder. Han threw a glass at his wife who was holding an oil lamp. *e had already been angry throwing things. =il lamp burst woman caught fire died. *e had a bad disposition (mens rea # +6bandoned malignant heart, # Common >aw # +6 heart void of social duty.,)" but probably didnCt intend to 'ill his wife. Eot intentional murder because we canCt tell he intended to 'ill. -+6bandoned malignant heart, is a common formulation of the state of mind necessary to establish unintentional murder. /elf-Defense # In some states provocation or an honest mista'e that self-defense is needed is a complete :ustification. (e.g. case where a loc'ed out husband brea's in window" wife thin's he is a rapist shoots him.) -/ome states allow a partial defense where there is a wrong belief in the need for selfdefense that is unreasonable (intentional murder is dropped to intentional manslaughter) +tate v. Williams # 6merican Indian family didnCt ta'e child to doctor for fear the child would be ta'en away. 2here was mens rea" not intent. It was either rec'lessness or negligence. 2his is unintentional manslaughter.

$$

Felony 7ur*er "ule@ Balls under unintentional murder not unintentional manslaughter because the defendant has shown indifference to human life malice. Dationales@ (1) 2he independent felony establishes that the defendant acted with the sort of mens rea that would otherwise establish murder liability # gross rec'lessness or +wanton indifference,. ($) 6 person who has proved himself a felon deserves to be held strictly liable. (() It will deter prospective criminals from committing the felony. ()) Iill induce those who will commit felonies to ta'e pains to commit those felonies safely. -Common felonies that include the rule are robbery" burglary" rape auto theft. nintentional 7anslaughter@ 6nything that caused death without intent or malignant heart not in commission of a felony. Hanifests only rec'lessness or negligence. CL9++ F=39L W=LL %'9L W=T6 CO77O3 L9W 0 7PC "',6O7=C=%' &A3OW 6OW T6'F 9"' T6' +97' 0 %=FF'"'3T) 7PC H!15.!&1)&a), =ntentional 7ur*er *ow different from common law@ 1. 2erminology # no mention of +malice aforethought,; $. /ays nothing about +premeditated murder, # doesnCt distinguish between someone who plans someone who doesnCt (. Eo mention of +intent to inflict serious bodily harm, # these are not considered intentional murder by the H%C. 7PC H!15.$&1)&#), =ntentional 7anslaughter -Bor acts under e&treme emotional disturbance. Deasonableness standard for actor in circumstances as he believes them to be. -Different from common law as it does not have the ob:ective person standard (only views it sub:ectively # from the person as they saw the situation.) -Common law distinguishes between (1) provocation ($) no provocation but there is a mista'e (e.g. thin'ing it was self-defense" which was intentional but not murder). H%C only considers (1) provocation where there is e&treme emotional distress. H%C does not consider a self-defense mista'e here. 7PC H!15.!&1)&#), nintentional 7ur*er -includes common law felony-murder rule -H%C adds word +e&treme, to indifference to the value of human life -Common law distinguishes between +e&treme rec'lessness, which is unintentional murder +rec'lessness, which is unintentional manslaughter. H%C eliminates the distinction between types of rec'lessness. 7PC H!15.$&1)&a), nintentional 7anslaughter -Common law has +rec'less, 'illing +negligent, 'illing. H%C doesnCt. 7PC H!15.E&1), 3egligent 6omici*e -8&actly the same as common law.

$(

"9P'
!asic Uuestions we disagree about re@ rape@ 1. Ihat is the harmful resultN (Ihat e&actly is rapeN) $. Ihy is it harmfulN (Iho has been harmed howN) -In common law rape is not a result offense" but a conduct offense. Tra*itionally rape was an offense against a manJs property 0 honor, 1. Han deprives another man of his ownership of his daughterCs virginity@ -Bather could no longer get the virginity price in marrying. /o" in !ible the rapist must marry her pay father the virginity price. $. Depriving a man of rightful.honorable control over his wifeCs se&uality@ -%urity of her se&uality is violated (permanently) -2he child she may carry may not be his -In the !ible they would both die. -*onor property are important values in patriarchal society -!ut" our values have changed over time" leaving us with conflicting views of rape. "ationales for "ape Laws, se&ual autonomy; human dignity # rape is an assertion that the rapist has more value than the victim; possible pregnancy.abortion; intimacy; bodily integrity; victimCs honor.reputation; impact on others (e.g. family friends); *I0; we donCt wish to reward male control of women.patriarchy # rape is a constant reminder that a man can ta'e what he wants from a woman. One i*ea why rape shoul*nJt #e a criminal issue, It is not worng for a man to force himself on a woman. 2his is the way nature is. Hen in their nature are violent. %enetration is male violence. !iology. 9nother =*ea, *arm is not :ust to the victim" but it is a social mechanism that 'eeps all women in fear. Catherine 7acAinnon, 0iew of +penetrable, as meaning female. 2his has an impact on views of male rape. /ince it is associated with females it is also associated with lower status. Eon-penetrability L strength.positive.male. %enetrability is a symbol. 2his ma'es it hard for men to admit that they have been raped" because this reduces them to a lower status. 6nd" the male rapist brings the standard of penetrability into 9uestion. Dape is how individuals reinforce the hegemony of patriarchy. 6 social mechanism that controls women; womenCs 'nowledge that it e&ists resists their combat. Pro#lem, >aw is about trying individuals for their actions; we donCt try based upon the generali3ed harms of a class (men) toward another class (women). Can the criminal law ade9uately address the act of the individual the larger social harm producedN

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Idea@ /hould we view rape as worse than deathN Is such a view a remnant of an honorbased societyN (It would be better for the father.husband if the woman died) ;;;;; 6 typical common-law based statute would define rape as +vaginal penetration of a woman (who is not his wife) by the male se&ual organ" by means of force" against the will of the woman w.o her consent., (6ct circumstance). 2he first parts (up to +male organ,) ma'e sense in the old view of women as property. 2he last parts deal with the woman herself. -In stranger-rape cases" factfinders tend to presume non-consent even force. -!etween non-strangers factfinders tend to be much harder to persuade that the D used force or that the complainant did not consent. 'volution of "ape Laws # =ver the last few years there have been reforms. 8videntiary barriers to rape prosecution have been lowered. Definition of rape has become gender-neutral. Harital e&ception has been eliminated. Eame changed from +rape, to criminal se&ual assault, to ma'e it less stigmatic. Host importantly@ 8liminated stateCs obligation to prove resistance" ma'ing non-consent the gist of the crime. The "e@uirement of T7O+T "'+=+T93C' &Ol* Tra*itional Diew) 2raditionally" to win a rape prosecution the state would have to prove very overt force. -Courts loo'ed to the victimCs resistance as an indicator of lac' of consent of the assailantCs force. Brown v. +tate &Wisc. 1.5?) +Eot only must there be the entire absence of mental consent or assent" but there must be the most vehement e&ercise of every physical power to resist the penetration of her person" and this must be shown until the offense is consummated., People v. %ohring &3F 1->E) # 2he resistance must be up to the point of being overpowered or from inability from loss of strength to resist. Prof. 9nne Coughlin, 2he definition of rape must be understood in the conte&t of laws re@ adultery" fornication. Dape was a plea to be relieved of responsibility for committing the +crime, of fornication.adultery. Idea@ *er defense is that she lac'ed the actus reus (wasnCt voluntary # e.g. man held her down) or mens rea (e.g. thought it was a medical chec'-up" didnCt 'now it wasnCt her husband for those crimes" or she committed the act under duress (she was threatened to the e&tent that she was :ustified). /he must show that the assailant threatened to 'ill or inflict serious bodily in:ury. Courts refused to e&cuse a woman who placed herself in a situation where it was li'ely she would be coerced. Hodern law still reflects this by loo'ing at the victimCs conduct as well as the attac'erCs. Idea@ >egal intercourse was only between a man his wife. !ut now we donCt want to 'eep the standard of legal intercourse only between a man his wife. 2"'9+O39BL'4 O" 2'9"3'+T4 "'+=+T93C'

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-6s courts eliminated the re9uirement of utmost resistance" they hardly eliminated the resistance re9uirement altogether. 2hey changed it to reasonable or earnest" and became more willing to accept arguments of futility. Peope v. %orsey &3F 1.-5) Dape on elevator. Ie donCt need to follow utmost resistance" only +earnest resistance, which is +resistance of a type reasonably to be e&pected from a person who genuinely refuses to participate in se&ual intercourse" deviate se&ual intercourse or se&ual contact" under all the attendant circumstances., -/ome states have eliminated the need for the prosecution to prove any resistance as proof of non-consent. +tate v. Powell &La. 9pp. 1.-$) # /aid that the :ury could not find that the plaintiff was prevented from resisting even where the assailant said he ha a weapon under the car seat she then complied. 2he dissent said that she should not be forced to resist" only to be prevented from resisting by force or threat of physical violence (which was present here). People v. Warren &=ll. 1.-$) Court refused to let a conviction stand where the complainant didnCt resist assailant didnCt brandish a weapon. /he was ta'en into the woods said there was no point in trying to flee or scream as there was nobody to hear she couldnCt run away. ;;;;; -In common law rape was always a purely actor reus offense. Hens rea was not part of it. 1. The Less Controversial Common Law 'lements of 9ctus "eus &for "ape),
+penetration of a female (not a prostitute) se& organ by the male organ of a man not her husband, (conduct) (circum) (circum) (circum) (circum)

%enetration (Common >aw)@ -Does it include full erectionN Bull emissionN -Ihat if during it the victim pushed the defendant away before full erection.emissionN -Ihat if he penetrates pulls out before e:aculationN -Ihat if he uses her body" but thereCs no physical penetration (reaches orgasm outside)N (Common law mandated penetration of penis into some part of the female. Bull erection or emission was not necessary. !ut without penetration there was no rape.) Bemale (Common >aw)@ -Could not be a prostitute (Idea@ 6 prostitute already chose to have illegitimate se&ual conduct. she regularly commits fornication.adultery. /ince she is already guilty" there is no point in allowing a +rape defense, in the 1 case where she didnCt want se&.) -Hust be over age 1). !elow 1) was statutory rape. -CanCt be a man. 2his was the crime of sodomy. (U@ /hould we include men in the definition of rapeN) (U@ *ow should the law refer to herN V6lleged victim," +Complainant," +/urvivor,N) /e& =rgan -/hould we only refer to the vaginaN Ihat about oral.anal se&N $1

- /hould we only refer to the penisN Ihat about other parts of the bodyN -Ihat about the use of ob:ectsN Han Iho is not *er *usband@ -6t common law a woman became part of her husbandCs legal persona. 6 legal persona canCt rape itself or ma'e a claim against itself. -6t marriage the woman was considered to have consented permanently to se&. -Hany states abolished this (some people consider it worse because of the element of betrayal). -H%C" li'e some states" still has a marital defense. H%C also e&tends this to men cohabiting with a woman. -2his is generally not e&tended to situations where there is a separation. !. 7ore controversial common law elements of actus reus, +<had to be forcibly or fraudulently or with threats or drugs, Borce@ -Borce means against her will. without her consent. Can be with fraud or threat. -*ow much force L +forcibly,N -/ome courts say any force is enough a. Braud@ -/ome thin' this has become obsolete. It assumes that a woman canCt distinguish her husband.they are stupid. !ut" there are women who are this naWve. b. 2hreat Common >aw@ 2hreat to life or serious bodily harm to her or to someone close to her. -/hould the threat be credibleN /hould she need to respond to it reasonablyN Ihat about threats to reputationN 2hreats to lose :obN c. Iith drugs.alcohol@ Common >aw@ =nly if defendant fraudulently caused the victimCs drun'enness. /hould this be applied where the fol's got drun' togetherN Common >aw Circumstances of Dape@ 1. !orcibly $. Lac of %onsent (. Utmost Resistance # Borce lac' of consent were proven by the use of utmost resistance. 2his became a way to get past +he said" she said,. ?tmost Desistance De9uirement Ias Critici3ed@ /tarting in the 1F4GCs 1. 6s a remnant of the days when the woman was considered as a defendant re@ adultery. 2his :ustification is no longer needed. $. De@ Is it wise to fight bac'N /ome literature says no. -2raditional mens rea was not part of the rape offense. >ac' of consent" force" etc. were treated ob:ectively.

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7organ Case &'ngl. 1.>?) # Han invites friends to sleep with wife for her +rape fantasy,. /he resists husband tells them she is acting. 2hey are convicted in trial court of rape (because mens rea is irrelevant) appealed arguing mista'e of fact (there is no mens rea). 2he court upheld this" because they didnCt believe the men. !ut" the court said that mens rea could be considered. (2he re9uisite mens rea is codified as negligence in 8nglish law). 2he reform focus was on consent. -In the ?/ Morgan was never adopted. -In the ?/ the focus is on force" not consent 7ay#erry Case &Calif.) Introduced the mens rea element for rape as negligence. 2his was adopted by several states. =ther states 'eep the common law view that rape needs no mens rea. -/hould we focus on consent or force or a hybridN 7PC H!1$.1, "ape 0 "elate* Offenses (1) Rape. 6 man has se&ual intercourse with a woman not his wife is guilty of rape if@ (a) he compels her to submit by force of by threat of imminent death" serious bodily in:ury" e&treme pain or 'idnapping" to be inflicted on anyone; or (b) he has substantially impaired her power to appraise or control her conduct (thru drugs" into&icants or other means of preventing resistance). (c) the female in unconscious Dape is a second degree felony unless (i) infliction of serious bodily in:ury" or (ii) victim was not a voluntary social companion had not been previously permitted se&ual liberties" in which case it is first degree. ($) (ross Se)ual *mposition. 6 mal who has se&ual intercourse w.a female not his wife commits a felony of the (rd degree if@ (a) he compels her to submit by any threat that would prevent resistance by a woman of ordinary resolution; or (b) he 'nows that she suffers a mental disease which renders her incapable of appraising the nature of her conduct. ;;;;; Prof. 7ichelle 9n*erson # 6rgues for retaining the resistance element. /ays it can deter rape. Prof. %avi* Bry*en # 6lso doubts evidence that resistance increases the ris' of death. /ays that women resist more forcefully after in:ury" thus s'ewing data. ;;;;; +tate v. 9lston &3C 1.-E) # In cases where there is a continuing se&ual relationship@ 6bsent evidence that the D used force or threats to overcome the will of the victim to resist the se)ual intercourse alleged to have been rape" such general fear wonCt suffice to show that the D used the force re9uired to support a conviction of rape. People v. /ansson &7ich. 9pp. 1.-!) # 2he prosecution is not re9uired to prove nonconsent as an independent element of the offense. If the prosecution offers evidence to

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establish that se&ual penetration was had by force or coercion" the evidence necessarily tends to establish that the act was non-consensual. Prof. %onal* %ripps, Eon-consent should no longer be an element of rape. 2he focus should be on the defendant in the committing of a +theft, of the victimCs +property, right in se& bodily integrity. Iould create $ new statutes to replace rape laws@ 1. /e&ually Hotivated 6ssault # In which the accused purposely or 'nowingly puts the victim in fear of violence in order to cause se&ual submission. $. /e&ual 8&propriation # Ihere the defendant completes the act over only verbal protests w.o putting her in fear of physical in:ury. (Criticism@ sometimes there is the underlying threat of violence or economic deprivation that coerces womenCs +voluntary, offer of se&.) -/ome :urisdictions go further :ust focus on non-consent as the crucial element of the crime@ +tate v. +mith &Ct. 1.-.) ($b+ective Standard) +If the conduct of the complainant under all the circumstances should reasonably be viewed as indicating consent to the act of intercourse" a D should not be found guilty because of some undisclosed mental reservation<Deasonable conduct ought not to be deemed criminal., Ihether a complainant should be found to have consented depends upon how her behavior would have been viewed by a reasonable person under the surrounding circumstances. De:ects a sub:ective standard for determining he issue of consent. 2The Consent %efense4 is a misnomer. It isnCt a defense" it is an element of the crime. If non-consent is an element of the crime of rape" the prosecution will bear the burden of proof beyond a reasonable doubt that se& occurred w.o the victimCs consent. Commonwealth v. Fischer &Pa. +uper. 1..-) De@ 6lleged college +date rape,. Hale argued that his lawyer erred in not as'ing for a :ury instruction De@ mista'e of fact. 2he court held that appellantXs belief as to the victimXs state of mind was not a defense to se&ual assault crimes" especially where physical force is used. Prof. +usan 'stich %roposes eliminating the force element conditioning rape liability on non-consent plus negligence. 6rgues that abandoning mens rea produces bad results for victims. 2he focus would shift from an in9uiry into the guilt of the D" to the conduct of the victim (did she consentN). 1. 2he in9uiry into the victimCs non-consent put the victim on trial. Considering it from his point of view eliminates the need to loo' into her se&ual history. $. 2he application of the resistance re9uirement has been applied even in cases where there is no doubt that intercourse was w.o consent. (. 6s long as courts hold that no mens rea is re9uired" pressure will e&ist to maintain some form of resistance re9uirement. Prof. Lynne 6en*erson@ /ays 8strichCs analysis has $ flaws@ 1. *er assertion that ?/ courts ignore mens rea to consent is wrong.

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$. /he is mista'en in thin'ing that shifting attention to the manCs mental state will relieve the victim of the burden of having to +prove, she was raped. 6lthough her sub:ective state may not be an issue" her behavior is relevant to establishing whether the D reasonably believed that he consented. Prof. %avi* Bry*en, Courts blend the sub:ective ob:ective elements whether any D could have reasonably believed the victim consented. :ust as'

A. 'vi*entiary "eforms Dape is uni9ue in its evidentiary rules@ -In 115G /ir Hatthew *ale said +(rape) is an accusation easily to be made hard to be proved harder to be defended by the party accused., 2his was incorporated into :ury instructions" which have mostly been eliminated by now. -2here used to be +corroboration, +prompt complaint, rules. (/ee State v. %onnelly re9uiring immediate complaint. /ee also #avis v. State where the victim didnCt mention the attac' because she wanted to tell her absent husband first.) 2hese have virtually disappeared" becoming mere factors for the :ury to weigh. -Iell into this century rape DCs could cross-e&amine complainants about their prior se&ual history. (e.g. People v. ,bbott -15(5 Pac ineau v. US # 1F-() -0irtually all states have now enacted rape-shield laws to address this situation" which bar in9uiry into the complainantCs se&ual history. !ut" they allow the D a chance for an in camera hearing w. the :udge to lay out the possible evidence. (/ee Bederal Dule of 8vidence )1$) L. 7arital "ape People v. Li#erta &CO9 3F 1.-E) - 2he court struc' down the marital e&emptions to the rape and sodomy statutes as having no rational basis. 2he court determined that the e9ual protection argument re9uired the court to either eliminate the statutes or to ma'e the statutes gender neutral. 2he court determined that ma'ing the statutes gender neutral would address the e9ual protection concerns and be a better result than declaring the statutes a nullity because of the effect that would have on public safety. AOB' B"F93T C9+' Colora*o Criminal Co*e, +ignificant Parts, 1. 2he word +rape, does not appear # in the 1F4GCs several states eliminated this word to eliminate the stigma to the victim. 2he statute refers to +se&ual assault,. $. Bocuses on force.violence" rather than consent" when considering rape. !ritish Courts@ Bocus on consent when considering rape. ?/ Courts@ Bocus on force.violence when considering rape. 2he is because of the idea of force in se& is a violation against the state. the people. 2herefore" the womanCs sub:ective consent is irrelevant. (. 2here is no re9uirement of resistance (puts rape in line w.other crimes). ). Cites +'nowingly, as the standard. 2his refers to the actus reus of force penetration. It doesnCt apply to the victimCs consent because the crime (as defined) doesnCt mention consent for 1st $nd degree. !ut consent is mentioned in (rd degree.

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9CT + "' + "9P' The Tra*itional 9pproach, 9n Overview, 1. 2he physical act necessary was penetration of female se& organ by male organ. $. 2he manner of commission was +forcibly, (. >imited alternatives to force were recogni3ed # fraud where woman didnCt 'now she was not with her husband or that she was engaging in intercourse (e.g. doctor or drugs) ). %enetration had to be against victimCs will" this was shown by her physical resistance. -. Consent was conclusively presumed when man had se& with his wife. 1. Eo refusal of consent was needed where the victim was under age 1G or so incapacitated as to be unable to give consent. 4. 2he defendantCs mental state was irrelevant. 5. 6bsence of a prompt complaint was admissible as evidence that the complaint was not genuine. F. /ome :urisdictions re9uired corroboration of victimCs testimony. 1G. %rior se&ual conduct of victim was admissible to impeach her credibility. 11. Hany :urisdictions used cautionary :ury instructions warning that rape was easily charged hard disprove. 1$. 6t one time rape was punishable by death in about Y the states. The =mpetus for "eform -Critics of the status 9uo argued that the focus on the victim was uni9ue to rape law. 2hey contended that traditional rape law negatively affected both victims of rape the outcome of rape cases. -2hey also said that traditional rape law was partly responsible for victimsC unwillingness to report rape. -2hey also said there was no longer any :ustification for the marital e&emption" as women were no longer viewed as property. -6lso" we need to gat away from the idea of women having to :ustify adultery (no longer the law). -2oday rape is viewed as a crime against the person" not property. The 7o*ern 9pproach, 9n Overview 2he modern approach has these features@ 1. /tatutes are often drawn in gender-neutral terms include anal oral copulation sometimes digital mechanical penetration. $. 2here is a trend toward recognition of a broader range of impositions as a basis for finding coercive conduct by the defendant. (. De9uirements of physical resistance have been lessened. 2here is also a movement toward the idea that verbal resistance should suffice. ). 2he marital e&emption is removed in most states. -. /tatutory rape age line is raised to protect young women (e.g. raised from 1G to 1)) 1. 2here is a greater recognition that the defendantCs mental state isnCt always irrelevant" and that some beliefs in consent are the basis for e&oneration. 4. 2he concept of a +prompt complaint, has been broadened. 5. Host :urisdictions have abolished any re9uirement that the victimCs testimony be corroborated.

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F. Dape-shield laws have been enacted to bar admission of the victimCs prior se&ual conduct in most instances. 1G. Cautionary :ury instructions have been largely abandoned. 11. Host states divide the offense into degrees" ta'ing into account the severity of the in:ury the seriousness of the imposition employed. -Aamir syas we shouldnCt :ust mend old laws" but start anew" as'ing ourselves what rape is. -Aamir says it is nearly impossible to separate force consent. CO77O3 L9W C"=7'+ OF T6'FT, L9"C'3F1 '7B'KKL'7'3T 0 F"9 % Larceny (Common >aw) included@ (1) 6 trespassory ta'ing (ob:ective) 2his included (a) a physical movement of the ob:ect; (b) a ta'ing from the possession of another; and (c) an act contrary to the will of the owner. ($) animus furandi (sub:ective) -.hey must occur at the same time. So ta ing an ob+ect /ith intent to return it later& then deciding to eep it& /ould not have been larceny. -2raditionally larceny was restricted to the theft of tangible" movable property (see Lund v. %ommon/ealth). H%C includes theft of services. 'm#eBBlement # Braudulent appropriation or conversion of money or goods. =riginally applied to money received by an employee for the employer. >ater e&panded to include agents (e.g. lawyers" ban'ers) 2he typical legislative scheme re9uires@ (1) 2hat the offender be trusted with the ob:ect by the owner" or at least have possession at the time of the offense" and ($) 6 subse9uent act of deprivation" usually termed conversion or fraudulent appropriation -6t first this applied only to people with a legal relationship between the parties" especially employer.employee relations. Hust be a legal agent. 2his has changed. -In the modern ?/ larceny embe33lement are merged into one over-arching offense committed by anyone who +dishonestly appropriates the property of another., -2he H%C retains the distinction between ta'ing e&ercising unlawful control over anotherCs property. 2heft in Meneral ->arceny is one of the oldest offenses. /ome say it should merely be a civil issue. -It is a form of protecting the idea of private property. Frau* &False Pretenses)@ (Common >aw) =btaining property by false pretenses. -Ihere the defendant induces a party to part with both possession and title of an item.

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CO3+OL=%9T=O3 1. !ritish 6pproach@ 8nglish 2heft >aw of 1F15. 8liminates the distinctions of larceny" embe33lement" etc." and creates one crime of +theft,. 2heft is the dishonest appropriation of the property of another. 2he focus is on dishonesty (it defines this as the harm). $. =hio 6pproach@ Aeeps the ideas of the different types of theft" but places them in one over-arching crime. =hio Criminal Code $F1(.G$ .heft@ (6) Eo person" w.purpose to deprive the owner of property" shall 'nowingly obtain or e&ert control over either the property or services in any of the following ways@ (1) Iithout consent of the owner (larceny) ($) !eyond the scope of the e&press or implied consent (embe33lement) (() !y deception (fraud) ()) !y threat (e&tortion) (. H%C 6rticle $$(@ Haintains the integrity of the different offenses" but says that you canCt get away with one if you were wrongly prosecuted for one of the other ones. (e.g. canCt get away with fraud because the prosecution wrongly charged you with larceny). 2his raises problems of legality" Binding someone guilty of something they werenCt charged with. /o" H%C says the crime charged the crime convicted canCt be radically different. 2o determine what 'ind of theft is involved" loo' at the victim@ 1. >arceny@ Ihere the victim didnCt consent at all $. 8mbe33lement@ Ihere the victim entrusted goods to the defendant" but didnCt intend to transfer title. (. Braud (Balse %retenses)@ Ihere the victim consents to transfer to the defendant" but this consent is induced by fraud. ). 8&tortion@ Ihen this consent is induced by force. 'G97 W=LL =3CL %' + 79A=3< 9"< 7'3T+ FO" T6' P"O+'C T=O3 0 %'F'3+' 93% T6'3 +9F=3< W6=C6 79A'+ T6' 7O+T +'3+' 0 W6F "OBB'"F 0 B "<L9"F "OBB'"F # Is traditionally defined as the commission of a theft from the person of a victim by means of threat of physical force or intimidation. -Contains all the elements of larceny plus the re9uirement that the ta'ing be accomplished by force or intimidation. -2he primary concern is with the physical danger or threat of danger to the citi3en not the property aspects of the crime. -6t common law the force or intimidation had to occur in the course of the commission of the crime. 2he H%C e&tended this to include during flight from the crime too. 7PC H!!!.1, (1) Robbery #efined. 6 person is guilty of robbery if" in the course of committing a theft" he@

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(a) inflicts serious bodily in:ury (b) threatens another with or purposely puts him in fear of immediate serious bodily in:ury (c) commits or threatens immediately to commit any felony 6n act shall be deemed +in the course of committing a theft, if it occurs in an attempt to commit theft or in flight. ($) (rading. Dobbery is a $nd degree felony. It is 1st degree if the actor attempts to 'ill" or purposely inflicts or attempts to inflict serious bodily in:ury. -H%C stresses that the harmful acts must involve +serious bodily in:ury,. Host state statutes donCt set such a high standard of harm or threatened harm in robbery. -2he threat or force must be imminent. 2he threat of a distant future harm will not 9ualify as robbery. B "<L9"F 7PC H!!1.1, (1) Burglary #efined. 6 person enters a building or occupied structure" with purpose to commit a crime therein" unless at the time the premises are open to the public or the actor is privileged to enter. It is an affirmative defense that the structure was abandoned. ($) (rading. $nd degree if in the dwelling of another at night" or if the actor@ (a) purposely" 'nowingly or rec'lessly inflicts or attempts to inflict bodily in:ury (b) is armed w.e&plosives or a deadly weapon. =r else it is (rd degree. -+in the course of committing, includes in flight -%erson canCt be convicted of both burglary the crime which it was his purpose to commit after the burglarious entry. 7PC Commentary, ?nprivileged 8ntry@ Eot open to public actor is not licensed. 2his ta'es the middle ground between the common law re9uirement of +brea'ing entering, the complete elimination of that re9uirement seen in some statutes. !uilding or =ccupied /tructure@ =ccupancy is important because it is dangerous when people may be around. Criminal %urpose@ 2he fat that the intruder may be contemplating a minor offense will be no solace to those who may fear the worst may react with measures that escalate the criminal purposes of the intruder. ;;;;; 9TT'7PT Ihy %unish 6ttemptN@ Detributivist 2heories -!ecause the act manifests bad character -If the D does all he can to cause harm" why should the failing of his plan absolve himN -!ut" there is worry that Ds will be punished w.o having done anything wrong

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Ihy %unish 6ttemptN@ ?tilitarian 2heories -!ecause the attemptorCs action" though harmless" proves that he is dangerous -%unishing attemptors ma&imi3es deterrenc. *ow the Criminal >aw Desolves 2his@ 2he criminal law tends to compromise by@ (a) %unishing attempts somewhat less than completed crimes (b) %reventing punishment for +mere thought, or bad character by stressing the need for some significant conduct ;;; + v. 7orales:Tovar &W% Te(. 1...) D was charged with violating ?/ statute ma'ing it illegal for a deported person to enter or attempt to enter the ?/ w.o permission. 2rial court said that attempt under this statute was a specific intent crime. 2he C=6 said that it was general intent. ;;; T6' 9CT + "' + OF 9TT'7PT 2he Hain Common >aw 6ctus Deus 2ests De@ 6ttempts 1. %ro&imity 2est@ Ihen the conduct is close enough to completion (see below). 6t common law there was no clear line to determine ade9uate pro&imity. $. ?ne9uivocality 2est@ Ihen the D has done something that indicates that he had a fully developed purpose to commit the crime. (2his includes a mens rea element as well.) 7cCuirter v. +tate@ /hows how arbitrary is the line on how much pro&imity is needed to constitute attempt (6frican-6merican man convicted of intent to commit an assault with intent to rape.) People v. 7urray &Calif. 1-;.) (%D8%6D62I=E 0. 6228H%2) De@ 6ttempt to have an incestuous marriage. +Bet/een preparation for the attempt and the attempt itself& there is a /ide difference., %rof. Meorge Bletcher@ +2he only reason we re9uire offenders to act on their intentions is to ma'e sure that the intention is firm and not merely fantasy., /ub:ectivists" however" re:ect the idea that an act is necessary. 2hey want to focus on the actorCs criminal intent. %reparation.6ttempt !oundary@ Menerally" the person who has engaged only in +preparatory activity, isnCt criminally liable" while the person who has gone +beyond the mere preparation, may be charged with an attempt. !ut" how to draw the line. -Hista'e of fact re@ a crime constitutes attempt (e.g. shooting manne9uin that you thought was a person). Hista'e of law (legal impossibility) may not be an attempt. -6t common law where the means are completely unreasonable to achieve the offense (attempting to 'ill with a toy gun)" there will be no prosecution. CO77O3 L9W 7'3+ "'9 "', 9TT'7PT 6ttempt liability re9uires that the defendant e&hibit@ 1. %urpose with respect to any conduct elements of the crime" and

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$. %urpose or possibly 'nowledge with respect to any result element" and (. /omething less (rec'lessness or possibly negligence) re@ the circumstances -=nce some harm is done the common law doesnCt allow the defense of renunciation. $ Types of 9ttempt at Common Law, 1. Ihen the person has almost fully completed the offense is stopped at the last second (e.g. police come :ust as he is about to shoot). 6t common law there was no clear line to determine ade9uate pro&imity. $. Ihere there is a mista'e (luc'" chance@ Defendant shoots at a manne9uin" not a man). Hista'e of fact re@ a crime constitutes attempt (e.g. shooting manne9uin that you thought was a person). Hista'e of law (legal impossibility) may not be an attempt. (. Deasonability@ %erson wanting to commit an offense couldnCt possibly cause harm. 6t common law where the means are completely unreasonable to achieve the offense (attempting to 'ill with a toy gun)" there will be no prosecution. Hista'e of Bact Hista'e of >aw 7O%'L P'39L CO%' D8@ 6ttempt DoesnCt e&onerate the D 8&onerates the D ;;; D8@ Completed =ffense 8&onerates the D DoesnCt e&onerate the D

7o*el Penal Co*e H;.51, Criminal 9ttempt,

(1) Definition of 6ttempt@ 6 person is guilty if" acting with the 'ind of culpability otherwise re9uired for commission of the crime" he@ (a) %urposely engages in conduct that would constitute the crime if the attendant circumstances were as he believes them to be; or (this subsection addresses the mens rea re0uired /ith respect to the conduct of the actor or the attendant circumstances of the event) (b) when causing a particular result is an element of the crime" does or omits to do anything with the purpose of causing or with the belief that it will cause such a result; or (this section concerns the mens rea re0uired for the results of the action ta en) (c) %urposely does or omits to do something constituting a substantial step in a course of conduct planned to culminate in his commission of the crime. 2he H%C drafters reIecte* the following lines 1. %hysical %ro&imity 2est # Directly tending toward the completion of the crime. $. Dangerous %ro&imity Doctrine # 2he greater the gravity probability of the offense. (. Indispensible 8lement 2est # 8mphasi3es any indispensable aspect of the criminal endeavor over which the actor has not yet ac9uired control. ). %robable Desistance 2est # If in the natural course of events" the conduct will result in the crime intended. -. 6bnormal /tep 6pproach # If the conduct goes beyond the point where a normal citi3en would thin' better of his conduct desist. 1. ?ne9uivocality 2est # Ihen the actorCs conduct manifests an intent to commit a crime.

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-2he drafters of the H%C ultimately agreed that what was needed (for actus reus) was@ (1) Criminal %urpose ($) 6n act that was a substantial step in a course of conduct designed to accomplish a criminal result. 2o be substantial such an act must strongly corroborate criminal purpose@ 7PC H;.51&!), 2he following shall be strongly corroborative of the actorCs criminal purpose (Constituting a /ubstantial /tep) (a) lying in wait (b) enticing or see'ing to entice the contemplated victim<to go to the place contemplated for its commission (c) reconnoitering the place contemplated (d) unlawful entry of a structure (e) possession of materials to be employed in the commission of the crime" that are specifically designed for such unlawful use or which serve no lawful purpose (f) possession" collection or fabrication of materials to be employed in the commission of the crime (g) soliciting an innocent agent Idea@ Ie punish attempts because they not only manifest intent to do harm" but also because they erode the public sense of security. (2hus" they are not inchoate) A97="J+ W9F TO 939LFK' T6' 7PC 0 9TT'7PT, +tep 1, Consider whether the conduct has been completed" then +tep !, Consider whether youCre dealing with a conduct offense or a result offense. H%C S-.G1(1)(c)@ 6pplies to incomplete attempts H%C S-.G1(1)(a b)@ 6pply to complete offenses the actor could have established the full rime H%C S-.G1(1)(a)@ Deals with conduct offenses H%C S-.G1(1)(b)@ Deals with result offenses (e.g. murder) 7PC H;.5;&!) 7itigation, If the particular conduct charged to constitute a criminal attempt" solicitation or conspiracy is so inherently unli'ely to result<in the commission of a crime that neither such conduct nor the actor presents a public danger<the court shall e&ercise its poser under S1.1$ to enter :udgment impose sentence for a crime of lower grade or" in e&treme cases" may dismiss the prosecution. ;;; +OL=C=T9T=O3 People v. Lu#ow &CO9 3F 1.>1) De@ /olicitation of a credit scam !asic definition of solicitation is that w.intent that another person shall +engage in conduct constituting crime," the accused +solicits" re9uests" commands" importunes or otherwise attempts to cause such other person to engage in such conduct. 7PC H;.5!, Criminal +olicitation,

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(1) Definition@ If w.the purpose of promoting or facilitating its commission he command" encourages or re9uests another person to engage in specific conduct that would constitute such crime. ($) ?ncommunicated /olicitation@ It is immaterial that the actor fails to communicate with the person he solicits to commit a crime if his conduct was designed to effect such communication. (() Denunciation of Criminal %urpose@ Is an affirmative defense if the person persuades the other person not to commit the crime or otherwise prevents the commission of the crime under circumstances manifesting a renunciation of his criminal purpose. /olicitation v. 6ttempt@ Bor purposes of grading" the H%C treats solicitation the same way as it treats attempt. /oliciting a crime results in the same penalty as completing that particular crime" e&cept that committing a felony of the 1st degree is punishable as a felony of the $nd degree. (H%C S-.G-(1)) -2he H%C position is that the D can be punished for either the solicitation or the attempt" but not both. (H%C S-.G-(()) +tate v. %avis &7o. 1.!-) De@ %lans to 'ill a womanCs husband for insurance K. 2he court found that D had solicited a crime" but did not cross the line from preparation to attempt. ;;; =7PO++=B=L=TF Legal =mpossi#ility@ Ihere the act completed would not be criminal. (Eot a crime to attempt such things.) 8&amples@ -6 person accepting goods which he believes to have been stolen" but which were not in fact stolen goods" is not guilty of an attempt to receive stolen goods. -6n accused who offers a bribe to a person believed to be a :uror" but who is not a :uror" is not guilty of an attempt to bribe a :uror. Dationale@ If none of the conse9uences which the D sought to achieve constitute a crime" surely his unsuccessful efforts to achieve his ob:ect cannot constitute a criminal attempt. Factual =mpossi#ilityL Ihere the basic or substantive crime is impossible of completion simply because of some physical or factual condition un'nown to the D. (Considered an attempt.) 8&amples@ -2he pic'ing of an empty poc'et -Ihere D shoots into the intended victimCs bed" believing he is there" when in fact he is elsewhere. -6 criticism of common law tests of impossibility is that their application depends on arbitrarily selecting one among many correct descriptions of the DCs act. + v. +o#rilis8i &-th Cir. 1..>) Han arrested for selling fa'e drugs to an undercover officer. *e appealed on the ground that it was an unpunishable impossible attempt. *e testified that he 'new he didnCt have

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real drugs. 2he court found otherwise affirmed his conviction ruling that impossibility is no defense to a charge under of attempting to distribute a controlled substance. %'F'3+'+ +'LF:%'F'3+' -Common >aw@ /elf-Defense is considered a full :ustification" not an e&cuse. /ustifie* +elf:%efense &Common Law)@ Ihen a victim uses reasonable force against an assailant when he reasonably believes@ (a) he is in immediate danger of unlawful bodily harm" and (b) the use of such force is necessary to avoid the danger. -%roportionality is necessary. Pro#lematic =ssues, 1. =mme*iacy, Criti9ue@ Ihy should it matter whether harm will occur immediately or in a little whileN -6@ If not immediate" person can find another way to cope with it -!ut" may not have a later chance to defend self (8.g. battered woman" hostage) !. 3ecessity, Division between ?/ ?A :urisprudence ?A # Borce is necessary only where the victim canCt retreat (e&cept for the home) ?/ # DoesnCt always re9uire the victim to retreat ( in the home" one can often use disproportionate force.) 0ictim@ 6 person who provo'ed a response canCt use the defense of self-defense (because he is not a victim). !ut determining +who started it, is tough. Deasonable 6mount of Borce (Common >aw)@ =b:ective standard based on the characteristics of that type of person in that situation. !ut" sub:ectively" the person must have actually believed force was necessary. People v. La Doie &Colo. 1.?E) Ihen a person has reasonable grounds for believing" and actually believes" that danger of his being 'illed" or of receiving great bodily harm is imminent" he may act on such appearances defend himself" even to the point of ta'ing life where necessary. 2his applies even if the appearances were false or mista'e as to the e&tent of the real or actual danger. -Defensive force :ustifications rely on the same balancing of evils that is the basis of the lesser evils defense. -!ut self-defense is uni9ue in that the actor ma'es the :ustification at a moment when he is in a difficult position. /o" courts are liberal w.e&cuse provisions. Hista'e@ 6 mista'en belief that force was necessary will@ (a) Ihen the mista'e is reasonable # full defense of :ustified self-defense

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(b) Ihen the mista'e is unreasonable # %artial e&cuse (reduced from murder to manslaughter) /elf Defense@ is a defense to any violent crime" not :ust murder. !ut the partial e&cuse can only be used when charged with murder. Hista'en /elf-Defense@ ?sually allowed if the belief is reasonable. !ut" in some :urisdictions it would be considered an +imperfect self-defense, which reduced murder to manslaughter. -Can use the self-defense defense where she accidentally harms an innocent bystander in defending herself (unless she is rec'less or negligent). 7O%'L P'39L CO%' 7PC H$.5E se of Force in +elf:Protection (1) ?se of force is :ustifiable when the actor believes that such force is immediately necessary for the purpose<of protecting himself against the use of unlawful force by such other person on the present occasion. ($) Limitations # (6)2he use of force is not :ustified (i) to resist arrest by a police officer. (ii) to resist force used by the occupier of property<where the actor 'nows that the person using the force is doing so under a claim of right to protect the property. (!) ?se of deadly force not :ustified unless the actor believes that such force is necessary to protect himself against death" serious bodily in:ury" 'idnapping or se&ual intercourse compelled by force or threat; not is it :ustifiable if@ (i) the actor provo'ed the use of force (ii) the actor can retreat or surrender possession of a thing (donCt have to retreat from home or wor') +tate v. 3orman &3C 1.--) Cannot slay your abusive husband when he is sleeping" because no harm is imminent. People v. <oetB &CO9 3F 1.-?) Han shoots youths who were mugging him. , person may use force to the e)tent that he reasonably believes such to be necessary to defend himself or a 1rd person from imminent use of unla/ful force by another. (=b:ective notion of reasonableness) Common Law v. 7PC 1. In the H%C there is no re9uirement that a belief that such force is necessary be reasonable. (H%C uses a sub:ective standard; Common >aw is ob:ective). 2his is considered +scary, as it may warrant 'illing by the confused. !ut S(.GF($) (() (see below) limit the right where the defendant is rec'less. $. H%C uses the ?A rule re@ retreat. Hust retreat rather than use deadly force (e&cept at home wor'). (. H%CCs +immediately necessary, replaces the common lawCs +immediate danger, +necessary force., 2his may allow a person who is not in immediate danger to act.

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Dather it allows self-defense where the ability to use self-defense is suddenly present" but may not be later (e.g. battered wife 'illing sleeping husband; 'idnapped person suddenly having access to a gun). 7PC H$.5.&!), Ihen a person is charged with a negligence offense wants to argue self-defense he is mista'en re@ the need for self-defense" then his mista'e must be reasonable. 6n unreasonable mista'e will not provide a defense. 2his means that if his mista'e was negligent he can still be found guilty of an offense that re9uires negligence. /ame with rec'lessness. !ut" for +purposely, or +'nowingly, crimes any belief will do.

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