Class outline

Tuesday, June 28, 2011

6:28 PM

I. Introductory Material

A. Basic Principles & Theories of Punishment,

Presumption & Burdens

B. Intro to Legality, Statutory Interpretation &

Canons of Construction

Legality - Notice - no judicial crime creation

i.(strict) statutory construction/interpretation
1. Plain meaning
2. Canons of construction
3. Legislative history/intent
i Vagueness/ambiguity doctrine - Void for Vagueness

If there is an issue with notice/legality, must apply rule of lenity

Lenity - too ambiguous

i Notice - reasonable person wouldn't know it's illegal

ii Unfettered discretion - police get to decide who is offending and
who isn't

Goals of Interpreting Statute

i Respecting "plain language" of statutory text
ii Discerning and effectuating the intent of the legislature/voters
iii Making sure interpretation in one case doesn't contradict
interpretation in another case

Rules for Interpreting Statutes ( Canons of Statutory

Construction)
i Interpreter should always begin with text of statute itself
ii Statutes should be interpreted in such a way as to avoid
constitutional problems
iii Noscitur a sociis - the meaning of doubtful terms or phrases may be
determined by reference to their relationship with other words or
phrases
 iv Ejusdem generis - where general words follow a specific
enumeration of person or things, the general words should be
limited to persons or things similar to those specifically enumerated
v Rule of Lenity - all doubts when reading a criminal statute should
be resolved in favor of the defendant due to liberty at stake and
presumption of innocence

II. Constitutional Limits

Greg Rule
i Same crime / different state
ii Different crime / same state

A. 14th Amend. Due Process: Void for Vagueness

Void for Vagueness

i Notice
OR
i Unfettered Discretion

(curing one may not have an effect on the other)

B. 8th Amendment

Proportionality test always used in 8th amendment cases

*** When not death penalty, more narrow principle of proportionality

i Evolving standards of decency

ii Justification
1. Objective indicca
2. National consensus (numbers in states)
3. Proportionality analysis

Gravity of offense v. harshness of punishment

Other crimes, same jurisdiction

Same crime, other jurisdictions

C. 14th Amend. Equal Protect

 14th Amendment - Equal Protection Clause
Strict scrutiny
Discrimination (racial)
"discriminatory purpose"

Discriminati Standard of Interest/Objective/ Means

on Review Reason

Race/origin Strict Scrutiny Compelling Interest Narrowly Tailored

restrictive)

Gender Intermediate Important government Substantially relat

Scrutiny interest

------------------- ------------------------- -------------------------------------- -------------------------

Everything else Rational Basis Legislative Reasonable

Heightened scrutiny = greater than rational basis

Must prove purpose/intent to move from rational basis to stricter
form of scrutiny
Any sign of purposeful discrimination

III. Actus Reus (The Act)

A. Introduction

Act
Can't be compelled
Voluntary
Omissions

B. Exploring Actus Reus

1. Interrogating Voluntariness

Voluntariness - decision made through both objective and

subjective assessment - not black or white.

Unconscious - negates voluntary act

 Diminished capacity - negates mens rea
Unconscious defenses go towards voluntariness of Actus Reus,
NOT mens rea
Unconsciousness must not be self-induced

Liability
Voluntary act or omission when capable
NOT voluntary acts:
1. Reflex/convulsion
2. Movement during sleep/unconsciousness
3. Conduct during or resulting from hypnosis
4. Otherwise not a product of actor's effort whether
conscious or habitual
i Cannot be based on omission accompanied by action unless:
1. Omission is ok by law
2. Duty to perform is imposed by law
i Possession IS an "act" so long as the person was aware they
were in possession

2. Criminalizing Status?

3. Omissions

a) Duty to Act

Liability for Omissions

If defendant had a legal duty to act and was physically
capable of acting
Must cause social harm
Defendant must act with the requisite mens rea

Law generally doesn't criminalize failure to act

EXCEPT:
Special relationship - husband/wife, parents/children
Contract - contractual duty to care for elderly person
Statutory duty - duty to pay taxes
Defendant creates risk of harm
Voluntarily assumes care when otherwise wouldn't have
duty

b) Good Samaritan Statutes

 Good Samaritan rule - impose statutory duty to rescue or call
for help when knowing someone needs help.

IV. Mens Rea (Guilty Mind)

A. Intro to Culpability

Mens Rea
Morally blameworthy
Culpable mental state

B. Mens Rea and Statutory Interpretation

Common Model Penal

law Code

General intent No distinction

Specific Intent between
general/specific

Willfully Purposely
Maliciously Knowingly
Corruptly Recklessly
Intentionally Negligently
Knowingly
Recklessly
Negligently
(MANY terms)

C. Intro to the Intent Doctr. & Knowledge

Common law Model Penal Code

Conscious object - Purposely

Cause some result or harm
 Knowledge to a virtual Knowingly (practical
certainty certainty)

Model Penal Code - cannot punish if he believed not something wrong

Common law - can punish for not knowing but should have known

Shortcuts to infer intent

Natural and probably consequences doctrine
May be deduced from surrounding circumstances

Knowledge
Common law - a person knows of a fact if he either is aware of that fact
OR correctly believes the fact exists
Statutory - (equating positive or actual knowledge with willful blindness
or deliberate ignorance)

D. Transferred Int. (Cont.)

Transferring Intent
Intent to do one thing (steal rum), cannot be used as a substitute for
intent to do another thing (burn ship)
But, intent for killing can be transferred when original target was
missed and bystander was killed
Strict liability - crime which government need not prove any mental
state, ie statutory rape
When a statute is silent re mens rea, presumption is that a mental
state is required for criminal liability

E. Specific v. Gen. Intent

Common Law
Strict liability - intention doesn't matter
General intent - did something illegal intentionally, even if didn't know
it was illegal
Specific intent - did something wrong, knowing it was illegal or
immoral, with purpose if something bad

F. Strict Liability Offenses

V. Mistake & Ignorance

A. Mistake of Fact

involves a situation where you are ignorant of a fact relating to an

element relating to your offense. Garnett is an example of Mistake of
Fact case.
As long as it's not a strict liability offense, based on some mistake of
fact, mens rea element can be negated.
Whether defense is negated will depend on general or specific intent,
and if mistake is reasonable or not.

Contemporary rule
General Intent -- voluntary commission of morally blameworthy act

Specific Intent -- " " " "

AND
Understanding of wrongfulness of act
AND
For achievement of further consequence
OR
Intent to do another/future act

General Good faith AND

Intent reasonable

Specific Good faith

Intent

Legal/Moral Wrong Doctrine

If your actions with the mistake would still be illegal, you are still
culpable.

If your mistake would make you guilty of a lesser crime, the jurisdiction
has the choice of punishing at the level of the more severe crime.

Model Penal Code 2.04

If the mistake negates the mens rea term of the statute
Legal wrong doctrine as practiced by model penal code - if conduct as
mistaken would still be an offense, you cannot claim mistake, but
will not be punished at the level of the more severe crime.
i.Mistake of law (typically not a defense or will not negate mens rea) can
exonerate where
1. There was no publication of the law
 1. Estoppel

B. Mistake of Law

Ignorance of the law is no excuse (generally). EXCEPT

Common Law:
i Entrapment by estoppel (reasonable reliance) - if you are told by
someone who has duties for administration and enforcement of the
law that your action is legal, you cannot be charged for it.
i Crimes where knowledge (of illegality) is an element of the offense
i Lack of fair notice (status crimes)

Model Penal Code 2.04

C.L. Mistake of Fact MPC 2.04 Ignorance/ Mistake C

Some fact of the case (fact of No general/specific intent G

consequence) person is mistaken
on

General Intent - Good Faith and Ignorance or mistake that negates the mens
reasonable rea.

Specific Intent - good faith (can
be unreasonable, but not crazy).
Navarro
Bell - Legal/moral wrong doctrine
(if your mistake is still part of a
crime, you can be held
responsible for the more severe
crime) (not really difference
between legal and moral wrong
anymore)
Legal Wrong Doctrine - you don't get benefit of
claiming mistake defense if your conduct would
still be different or lesser crime, BUT you will be
punished at the level of the lesser offense. (Bell
would have only been punished for prostitution
under MPC)

Estoppel E
1. Statute/enactment 1
1. Judicial opinion
1. Administrative order
1. Reliance on a person who has
enforcement/ interpretation/ administrative
duties under statute 1

1
 Only difference between MPC and CL estoppel
= apparent authority

1. Entrap. by Estoppel

i.Entrapment by estoppel (reasonable reliance) - if you are told by

someone who has duties for administration and enforcement of the
law that your action is legal, you cannot be charged for it.

2. Ignor. & Mens Rea

3. Fair Notice Exception

VI. Causation

A. Intro to Actual (But for) & Proximate (Legal)

Cause

i. Actual Cause (but for)

ii. Proximate Cause (legal cause) -
Whether there were intervening superseding circumstances that
were foreseeable (and basic fairness principle). Both culpability and
foreseeability involved.
i. Actual/Cause in fact ("but for" cause) (antecedent to events, set chain
in motion)
ii. Legal/Proximate cause - determination process. Way of asking
question where somebody sets the chain in motion, is it still fair to hold
them responsible given the way events unfold. Ultimately a fairness
question. Some superseding event that could not have been foreseen.
That the harm would result in that way.
iii. ****** But for AND Proximate cause (not just but for reasons) (Not an
either or - need BOTH)
iv. For proximate cause - NO intervening and superseding events, AND
fairness
v. Apparent safety doctrine - if someone sets in motion but for cause, and
you reach a point of safety at some point, that breaks the chain of
causation. If a place is a place of apparent safety is discretionary.
vi. Intervening causes - acts or events that come after the defendant's act
but before the social harm and also contribute causally to the social
harm
 B. Concurrence of Elements

Concurrence
Temporal
Motivational

Concurrence - link between commission of actus reus and maintenance

of mens rea. If don't have both elements at same time, can have lack of
temporal concurrence.

VII. Offenses: Homicide

A. Intro to Homicide
Common law definition
Unlawful, unexcused, unjustified killing of a human being

Common law rule of year and a day - victim has to die within year and a
day of the harm being created.

Model Penal Code

Purposeful, knowing, negligent, or reckless causing the death of another
human being

Malice : how to prove

i.Intent to kill (ie deadly weapon rule)
ii.Intent to do great/serious bodily injury
iii.Depravity - malignant heart Implied malice
iv.Felony intent (fake intent related to another crime)

B. Intentional Killings

1. Murder (Exp. Malice); Degrees

i.Common law (malice)
Express malice (intent to kill/intent to do serious bodily injury)
Distinction of degrees (1st and 2nd)
Premeditation/deliberation
1st degree FMR
2nd degree FMR
WA statute
1st degree
2nd degree
 Know how premeditation/deliberation work to distinguish
i.MPC
2.10 A murder - knowing or purposeful homicide
No degrees of murder
Degrees of felony

2. Manslaughter (Vol.)
1.Common law (w/o malice)
Voluntary
Provocation
Categorical
Reasonableness
Mere words
Time framing
Personal background factors in terms of reasonableness
1.MPC
210.3(1)
No distinction between voluntary/involuntary
Extreme Emotional Distress - turns murder into manslaughter
Objective reasonableness
Subjectivity? (Hybrid)

a) Provocation
Categorical
o Stopping someone in commission of felony
o Crime against a loved one
o Stopping an illegal arrest
o Mutual combat
o Discover your lover in the adulterous moment
Reasonableness
o Provoked
o Remain under the provoking influence during the event

Normal common law rule - mere words rule - words not enough to
provoke

b) Ext. Emot. Dist. & Alt. Rule(s)

WA Statute
o Murder 1st degree RCW 9A.32.030 - premeditation
o Murder 2nd degree RCW 9A.32.050 - other than premeditated
o Intentional/unlawful killing of a fetus RCW 9A.32.060 (form of
manslaughter, 1st degree)
 o WA has depravity, no merger doctrine, no provocation

C. Unintentional Killings

1. Depraved Heart (Imp. Malice)

Common law (worded any way as long as explains poor risk
calculation
o Type/level of mens rea required (Knoller)
o Subjectivity?
MPC 210.2(1)(b)
o Reckless with extreme indifference to human life
1. WA Statute RCW 9A.32.030 - Extreme indifference to human
life
1st degree (odd, most are 2nd degree)

2. Manslaughter (Invol.)
1.Common law (involuntary)
Culpable or criminal negligence (greater than simple)
1.MPC 210.3(1)(a)
Homicide that is reckless without extreme indifference to human
life

WA Statute
1.No voluntary/involuntary
2.1st degree RCW 9A.32.060 - recklessness
3.2nd degree RCW 9A.32.070 - criminal negligence (involuntary)

3. Felony Murder Rule (FMR)

1.Common law
1.1st Degree (enumerated/listed)
2.2nd Degree (Common Law)(all other felonies)
1.MPC 210.2(1)(b)
Reckless/extreme indifference
During the commission of listed felonies
Limits on FMR

Felony intent is not intent for murder, simply intent to commit felony.

4. Limits on FMR
Inherently dangerous felonies (2nd degree/common law)
a. In the abstract? Ie is meth dangerous to manufacture
i. CA - high probability
 ii. GA - risk of death
a On the facts/under the circumstances? Ie was that particular
felon in possession doing so in a dangerous way?
Res Gestae
a Commission
i. Not just the actual event but up until when you get into
place of temporary safety
ii. Limits on time/place/"...in furtherance"
a Causation analysis
i. Only care about but-for?
ii. Requiring a measure of direct causation --> proximate
cause
Merger (which felonies can be predicate for FMR without merging
with felony murder) (Lesser Included offenses)
a Predicate felony must be independent
b Predicate felony must not be integral to homicide offense
c Rules:
i. No lesser included offense
ii. No assaultive conduct
Third Party
a Proximate cause rule - if the death results from the crime and
was reasonably forseeable, can be held liable
b Agency rule - you are responsible from the deaths that result
from the acts of you or your cofelons. Canola
c Alternatives:
i. Jurisdictional gun battle rule - first shot is the proximate
cause, no matter whose shot caused the murder
ii. Provocative act murder - anything that is provoking that
causes a gun battle is proximate cause for the murder

Differences in WA
WA - anomolies
Depravity = murder
Most jurisdictions have provocation or EED in manslaughter - not
WA. Seems to purposely remove provocation or EED.
WA manslaughter 1st and 2nd degrees basically both involvuntary
WA Rules
Res Gestae - in furtherance of and immediate flight therefrom
Agency rule - WA uses agency rule rather than proximate cause rule,
with some an allowable defense if meet 4-prong test

Malice is imputed (inferred) during the commission of an inherently

dangerous. Doesn't need to be there. But rules on how it's imputed
(recklessness, criminal negligence, etc) may change depending on the
jurisdiction.

Murder - most forms of homicide are lesser included offenses

VIII. Sexual Offenses

A. Introduction

B. Forcible Rape
Forcible Rape - the carnal knowledge of a woman, not the perpetrator's
wife, forcibly and against her will
Forcible Rape = General Intent Crime
Move from forcible compulsion standard
a Force = violence
b Resistance
c Consent
Moving to only consent standard
a Questions of mistake
b Consent can be inferred - does not have to be explicit, as long as
suggests to reasonable person that consent is not being withheld.
Some statutes still include force necessary to achieve the act,
which can mean as little as penetration
Consent can be withdrawn at any time. Once consent is
withdrawn, the person has to stop within a reasonable time.

The Question of Force

The Quest. Of Consent

C. Sodomy
Has no force or non-consent elements

IX. Criminal Law Defenses

A. Introduction
Case in chief defenses
failure of proof defenses
prima facie defenses
Defendant argues prosecution failed to meet burden of proof on
at least one essential element of the crime (mens, actus, causation,
concurrence)
All defendant has to do is raise a reasonable doubt about
existence of one element
Unconsciousness and most mistakes = case in chief defenses
Affirmative defenses
Defense admits government met its burden of proof
Defense argues defendant should be acquitted for some other
reason
Defendant bears burden of proof for affirmative defenses
Typical burden of proof for affirmative defense = preponderance
of the evidence

B. Justifications

Self Defense
Necessity - must be necessary to use force
Imminence - cannot be that threat was abstract, must be
imminent
Proportionality - measure of how much violence, response
cannot be excessive relative to the threat
Cannot be initiating aggressor - doesn't just mean the violence
used, threat first could be enough

All of these measured through reasonableness standard.

a Subject to choice of objective vs. subjective
Must have had an honest and reasonable belief that
a Was threatened with imminent threat of unlawful force, AND
b That the force used was bot necessary to repel the threat AND
proportional to the threat
Not absolute requirement (defendant does not have to be correct in
the belief)
Simply need to reasonably believe in need to act in self-defense

Self Def. & BWS

Self Def. & the Reasonable Man?

Imperfect Self Def. & Defense of Others

Imperfect Self Defense
Honestly believe that force is necessary but belief is unreasonable
Someone attacks with nondeadly force and wrongfully escalate by
using deadly force
Just like self-defense, but your reasonable-meter is off. Barnes
thinks it's like applying mistake-of-fact to the self-defense
argument. Instead of being mistaken about an element of the
offence, here you are mistaken about an element of the defense.
 Defense of Others (Justification)
When a person uses fore against another person to defend a
third person thought to be in imminent danger of unlawful
attack
Still requires:
a Triggering condition (third person under unlawful attack)
b Necessity requirement
c Proportionality requirement
o Also requires defendant honestly and reasonably believes the
force used was necessary to protect third person from
imminent unlawful attack.
o Act at Peril Rule - defendant who came to third person's rescue
did so at his own peril - if he had no right, he had no defense
o Particular Status Relationship Rule - Third person had to be a
close relative, servant or employee.
o Most jurisdictions got rid of Act At Peril Rule and Particular Status
Relationship Rule

o Def. of Habitation & Defense of

Property
o Original common law rule permitted on occupant of the dwelling
to use any force necessary, including deadly force, if he reasonably
believed the force was necessary to prevent an imminent unlawful
entry
o Some jurisdictions still follow common law, but modified to
restrict use of deadly force to cases where intruder is going to
commit unlawful entry AND commit a felony or cause other injury to
occupants of the dwelling
o Other common law jurisdictions - deadly force may be used
ONLY if reasonably believes intruder is going to commit unlawful
entry AND forcible felony or kill or cause serious bodily harm

o Generally not allowed to use deadly force in defense of property

o Necessity
Common Law Model Penal Code 3.02

6 factors 1. Harm avoided

1. Harm avoided greater than harm caused
greater than harm caused 1. Code doesn't
2. Legislature hasn't provide another defense to use
previously precluded as instead
defence 2. Can't have been
1. Requires causal legislative purpose to exclude
 connection between illegal 1. If an offense
act and harm where mens rea term is reckless
1. No effective legal or negligent, can't use as a
alternative defense.
1. Clear & imminent
1. Can't be
responsible for the original
danger

Imminence requirement No imminence requirement

May not use as justification to Doesn't say that you can or can't
homicide (except under FMR for use as justification for homicide
the underlying felony)

C. Excuse Defenses

1. Duress
Common law Model Penal Code
1. Imminent 1. Coerced
Death or great bodily injury through unlawful force (obj?)
1. Reasonable (person of reasonable firmness)
fear threat will be carried out 2. No available for
if you don't commit the crime negligence/recklessness
1. No reasonable conduct
opportunity to escape the 1. No spousal
harm coercion defense
2. Doesn't
preclude 3.02 (necessity)

Difference between necessity and duress

Necessity - choice between two harms for the
lesser harm
Duress - choice taken away

2. Intox./Addiction
Common law Model Penal Code 2.08

Early common law - was not a

defense
 Modern Common law: 1. Voluntary
a. Involuntary intoxication - negates an element
(someone slipped me a ***) of the crime (mens rea)
Defense 2. Recklessness
a.
caviat
regardless of crime
3. Intoxication not a
distinction
disease
a. Voluntary
4. Involuntary
(Atkins/Frey)
intoxication (insanity)
Specific
intent - potential defense
General
intent - no defense
New trend -
discontinue voluntary
intoxication defenses

General Cannot use evidence of intoxication

Intent

Specific Can use evidence of intoxication to negate mens

intent rea of crime

3. Culture?
No persay cultural defense
o Mitigation (charge down and/or give lesser punishment)
1. Can negate the mens rea (question of mistake/ignorance
of the law)
o Claims of:
1. Reasonableness
2. Provocation
3. Ignorance/mistake
o Temporary insanity

4. Insanity
Guilty but mentally ill. Sentences in mental hospitals usually longer
than sentence would have been in prison.

Common law MPC

M'Naghten rule: Lack of substantial capacity

1. Nature/qu Lack of capacity conform/control self
 ality of acts (impulses)
2. Wrongfuln
ess

Know Appreciate

5. Diminished Capacity
Defendant who cannot prove he was insane at time of crime will
seek to introduce evidence of mental illness as way of mitigating or
eliminating responsibility for crime.

1.Negates mens rea

2.Mitigating the offense
3.Mitigating punishment

Don't have to pick one over the other for insanity/diminished

capacity. BUT, diminished capacity will allow someone to go free.
Insanity puts them in a mental hospital.

X. Inchoate Offenses

** Common Law Model Pe

Actus Reus Act v. mere preparation (what's left to be completed) Substantial

Mens Rea Specific intent - same (or narrower) intent as used for attendant c
target crime circumstanc

Proximity Physical proximity - nearness to completing (not

necessarily geographically)
Dangerous proximity
1. Nearness
2. Dangerousness/harm
Fear/apprehension

Abandonment can't abandon once you commit an act in furtherance can abando
(not becaus

Impossibility See Factual/Legal impossibility no "imposs

impossibilit
facts as def

Solicitation cannot be convicted of solicitation if it's not can be conv

 communicated

A. Attempts

1. Intro, Actus Reus & Abandonment

2. Mens Rea

3. Impossibility Def. (Common law)

Legal Impossibility Factual Impossibility

Pure - conduct not criminalized Mistake of fact (ie belief that a

(ie belief with a 17 year old is 15 year old is in the bed but not)
against the law)

Hybrid - some sort of factual

mistake regarding legal status
of one of the attendant
circumstances makes it
impossible for crime to be
committed (ie belief that a 25
year old is pretending to be 15)

B. Solicitation
Attempted solicitation = double inchoate crime

Intents:
1.To solicit assistance
2.That target offense be completed

Typically merges with target offense. (If convicted of attempt or target

crime, cannot be convicted of solicitation)

If you ask someone to do something and it's achieved, you're convicted

of target offense.
If they don't achieve it, can be convicted of attempt and solicitation.

C. Conspiracy
1. Intro
Criminalizes act of entering into an agreement to do something
criminal

Two intents:
1. Intent to enter agreement
2. Intent to commit the target crime

Rule Choice
1. Agreement
2. Agreement + overt act *** Used by most jurisdictions now.

2. The Agreement
Unilateral - agreement where only one person required to know
what's really going on
Bilateral - agreement where both parties are on the same page and
know what's going on

MPC - Unilateral
WA - bilateral

3. Mens Rea
Like attempt, must be specific with intent/mens rea requirement for
conspiracy.

4. Pinkerton Rule
Pinkerton - each party may be liable for substantive criminal
offenses committed by a co-conspirator during the course and in
furtherance of the conspiracy.
Applies:
1. Where substantive crime is also a goal of the conspiracy
2. Where substantive offense differs from precise nature of
ongoing conspiracy but facilitates implementation of its goals
Alvarez expanded Pinkerton to include reasonably foreseeable but
originally unintended substantive crimes

5. Shape of Conspiracy
How Many Conpiracies
For overarching conspiracy, must know or should have known that
the other conspiracies must exist in order to complete the target
offense.
XI. Accomplice Liability

A. Introduction & Common Law Appr.

Specific Intent Crime

Principles
1. 1st degree - person who actually committed the acts constituted the
offense or used an "innocent instrumentality" to commit the offense
2. 2nd degree - person who intentionally assisted the commission of the
crime in the presence of the principle 1st degree
i. Actual presence (inside the bank during the robbery)
ii. Constructive presence (accomplice outside the bank watching
for police)
Accessories
1 Before the fact - intentionally assisted in commission of the crime, but
not present when crime committed (ie person who buys the guns)
2 After the fact - helped principle 1st degree and accomplices avoid arrest,
trial, or conviction
 B. Modern Approach Liability: Accomplice
v. Principal

MPC 2.06 Complicity

1 You are responsible when:
i. You dupe someone
ii. If you agree to conspiracy for something you are vicariously
responsible for actions of others

iii. Is when you are an accomplice, such as: purpose of promoting

and facilitating, you solicit such other person to commit a crime. If
you aid agree or attempt to aid the person committing. If you have
a legal duty to prevent, you fail to make proper effort. The law has
explicit language.

XII. Theft Offenses

A. Introduction
Common law - different categories of crimes listed under theft.
Must charge with particularity. Must offer evidence or proof of the
particular theft offense charged.

B. Theft By Category
Larceny
trespassory taking of another with intent to deprive. If later don't
intent to permanently deprive, then no longer larceny.
(larceny v. grand larceny only used for punishment issues and
only based on amount, usually $500 threshold)

Larceny by trick
difference between possession and custody:
1 Possession - right to do with property plus what you wish to do
with it
2 Custody - just physical control of the property
1 Involves committing the larceny through some form of deceit.
i. IE receiving the item under some false pretenses, but
intend to deprive the person of the possession the whole
time
o Constructed possession
i. Employer delivers property to agent
ii. Owner of property mispalces or loses
iii. Owner delivers property as part of agreement in owner's
presence
 o Breaking Bulk doctrine
i. Actually did give away constructed possession
ii. Don't have larceny by trick
iii. Didn't give possession of everything - gave packages but
content of packages remain with owner.
Embezzlement
o give something to someone where they are supposed to take
care of it or return it, but instead convert it to their own
possession
i. Intentional conversion of property of anotehr by somenoe
already in lawful possession or by soeone it has been
entrusted to.
ii. No deceit involved in taking possession of the item.
False Pretenses
o Makes a distinction between possession and title
o Requirements:
i. Make a false statement of fact
ii. That false statement causes victim to pass title of
property to you, where defendant knows statement is
false and intends to defraud the victim
iii. Difference between possession and title is
custody. Possession includes custody, title does not
have to.
iv. Only works for things that society has clearly
designated a role for title
Difference between larceny by trick and false
pretences:
If you get possession by deceit, it's larceny by trick
If you get title by deceit, it's false pretenses

C. Theft (Consolidated)
MPC Consolidation 220
221 - Burglary
222 - Robbery (aggravated)
223 - Theft and related offenses
Consolidation - any of forms of theft that follow can be proof of
theft
223.2 - Unlawful taking - (CL Larceny) (no *permanent* intent to
deprive)
223.3 - Theft by deception (CL Larceny by trick/embezzlement/false
pretenses) - obtaining property of another by deception
223.4 - Extortion - purposesly obtaining property of another by
threatening
 223.5 - Loss or mislaid - to what extent you're responsible when
something is lost or mislaid - knowledge - must take reasonable
steps to restore to owner

D. Aggravated Offenses
(felonious taking of person property from his/her person or immediate
presence accomplished through use of force)

Burglary
Burglary (structure)
Voluntary/intentional entry (unlawful) in a building with
felonious intent
Common Law
(unlawful) Entry
Structure
Felonious intent

Robbery
Robbery (person)
larceny but with using force or fear against a person
a. Felonious intent
b. Force or putting in fear
c. Taking and carrying away property

a. REVIEW
Word Limits:

Exam questions:
Short answer: 45% of grade
1. 500 words
2. 500 words
3. 750 words
Essay: 55% of grade

Ambiguity (Lenity)
v.
Void for Vagueness

Ambiguity/Lenity
1. (more than one meaning or a confused premise)
Statutory construction - court looks at statute to figure out what legislature
meant. When we can't figure out what they meant, that's where lenity comes
in.

Void for vagueness

2. particular type of ambiguity - jurisdiction criminalizes something most
common people think is innocent behavior (not criminal). Overbroad -
criminalizes things that will catch a lot of people who don't mean to be
caught by the statute
3. Notice problem
4. Enforcement - arbitrary enforcement

Mens Rea Questions

Statutes that don't appear to have a specific mens rea

term - should that be read as strict liability or general
intent?
5. With exception of some rare statutes ie statutory rape, almost all
statutes will be at least general intent.
6. Strict liability will only be such if it has strict liability language in the
statute
7. If there are no specific mens rea terms at all, it's probably a general
intent. Barnes will probably put a bracketed term to indicate level of
mens rea required though

Can you argue mistake for any strict liability?

NO - Can't negate a mens rea term that doesn't exist.

What is mens rea term for MPC 213 "if he compels"

MPC for rape/sexual assault
Compels stands in for forcible compulsion - purposeful conduct

Comparative Questions
Common Law WA MPC

Degrees: Murder1: No degrees

Murder1: 1. Premed/delib
1. Premed/delib 2. Depravity
2. Special means 3. FMR (enumerated)
3. Felony murder Murder2:
(enumerated) 1. All other not premed
Murder2: (all other) 2. Provoked killing
1. Express malice (intent
without premed)
2. Implied malice (depravity)
3. CL felony murder

Manslaughter: Manslaughter1: Manslaugh

1. Voluntary 1. Reckless conduct 1.
(provocation/heat of passion) 2. Unborn child 2.
2. Involuntary (culpable Manslaughter2:
negligence) 1. Criminal negligence

Intoxication: Vol Intox

Invol intox (defense to any crime) 1.
Vol intox (norm
1. general intent crime - no 1.
defense appre
2. Specific intent crime - may Risk w
negate mens Invol Intox/
Current trend: no defense for Vol Intox a.

Attempt: Attempt:
CL test for Actus Reus Substantia
a. What remains to be done c.
b. Nearness to d.
accomplishment Depends o
Legal (hybrid)/Factual Impossibility available
Always specific intent

Insanity: Insanity:
Knowledge of nature/quality and Lack of cap
wrongfulness Lack ability
If doesn't say legal or moral wrong, then Allows you
what
Is deemed morally wrong by society's
standards

Mistake of Fact Mistake of

a. Mistake about one of the a.
elements of the crime b.
b. Specific intent - good faith
c. General intent - good faith Legal/Mora
+ reasonable
If already k
Mistake of Law crime, will
a. Not believing your conduct
is criminal
b. Generally not a defense If don't bel
 c. Estoppel (reliance on a.
apparent authority) b.
Legal/Moral wrong: a.
If already knew doing something else b.
wrong in addition to crime, will be c.
charged at the greater crime. d.
a

WA is a MPC state for MPC,

Using the 4 MPC words

Express malice

Thibeault decision
1. Entry
2. Structure
3. License/permission
4. Felonious intent