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Criminal Law

Chapter One

Criminal Law vs Civil Law


Criminal Law is a crime against a statute. Requires beyond a reasonable doubt to prove
guilt. Burden of proof always lies with prosecutor.
Civil Law is dispute among individuals. Requires preponderance of evidence to prove
guilt.

Adversarial System - Bifurcated ( two sided )


Factual Information

Civil Law - Tort


Petitioner/Plaintiff - Brings forth case

Defendant/Respondent - protects against allegation

Compensation is goal in civil case - Damages (Dollar amount)


Two types of damage
Actual - Lost wages, repair of property,
Punitive (Punishment) -

Criminal Law -
Prosecutor(Government Body) - Charged with bringing forth allegation

Defendant - Person that is accused

Seeking Punishment - Jail time, probation, fines, capitol punishment,


house arrest, community service, curfew limitations, employment
restrictions
Define, grade,
Judgment is tailored for offense and offender.

Punishment Purposes
Retribution
Vengeance
Deterrents - Specific and General
Rehabilitation (Treatment/Programming)
Incarceration - For Serious Offenses
Incapacitation -
Execution/Capital Punishment
Classify crimes as felonies or misdemeanors or minor violations/infractions

Mala in Se - Bad in itself


Mala Prohibita - Bad because its prohibited by law.
Mens rea - guilty mind
Corpus delicti - body of the crime

Crime is a social defined harm to which is attached a punishment


Need to balance rights of citizens with needs of society as a whole

Protection of Public Morality

Sources for criminal law


Past Case Decisions
Legislators
Constitution
State Constitution
Judicial Actions
Existing Laws/ statutes

Limitations of Criminal Law - Laws through necessity change


-Must be Specific - (Vagueness (Void)) must assist law enforcement.
Over Breadth Doctrine
-ex post facto(after the fact) After the crime has occurred we increase the
punishment
-Bill of attainder - process or punishment with out legal processing
- Due process - Doing things legally correctly, procedural due process(actions
taken) and substantive due process (words)
-Equal Protection under the law - protects against discrimination

Liability - being accountable for actions


Strict Liability - Responsible without looking at fault ( you did or you did not
commit the crime)
Vicarious Liability - Transfer unlawfulness from one person to another, if the
employee is doing criminal act the employer still is responsible for actions
of employee
Corporate/Enterprise Liability - Corporation is responsible for employees actions
Responsibility under the laws for things companies do.

Possession
Actual - on or near person
Constructive - you have both power and intention to obtain at later time

Crime
Unlawful actions- crime of commission vs. crime of omission (failure to do
something)
Conversion - an illegal assumption of possession of an item permanently
Lost property is different than conversion, you are attempting to locate it
Legally must attempt to locate owner.
Abandonment - the intention to abandon and an action to abandon
Time or non-use is not an essential element

Circumstance - Any fact or event or situation indicating that something has happened
Attendant - those facts(evidence - factual information) surrounding the case at
hand, the particulars
Aggravating - Makes the circumstances worse
Mitigating - Tends to decrease the severity of the crime (mental, medical
conditions etc)
Exigent - Special Circumstances

Elements of Crime
Actus Reus - Guilty/unlawful act or Failure to act with legal duty
Mens Reus - Criminal Intent/Guilty Mind/Criminal State of Mind/Level of
Culpability
Causation - Result of unlawfulness
Concurrence - Combining of Mens Reus and Causation

Motive is not an element of a crime

Culpability - Blame or fault connected to criminal activity


1. Purposely
2. Knowingly
thin line between knowingly and purposely
3. Recklessly - disregard danger or harm
4. Negligently - Accidental

Complicity - Criminal Association


More than one person responsible, one person held responsible for actions of
someone else

Principals - parties involved in crime


Active
Passive
Accessories
Before
During
After
Conspiracy - an agreement between two or more people to commit a criminal act
Chain Conspiracy - each link is dependent upon success of person before them
Wheel Conspiracy - Central individual knows everyone, individuals don't
necessarily know each other.
Enterprise Conspiracy - Organized crime, central figure oversees whole
operation
Concealment of a crime
See & Do Nothing
Know & Fail to Report
Try to Hide Crime

Credibility - Truthfulness/Believability
If you lie in a case, you commit perjury - you damage your credibility

Circumstantial Evidence - Not tangibly present


Connects or links people to crime

Voir Dire - Selection of Jury Process through a series of questions and answers

Allegation/Criminal Charge - Believed to be what happened

Quantums/Standards/Levels of Proof -
No Information At All - Not Used
Suspicion
Probable Cause - Supported by something Factual
Substantially Supported by Evidence - Only used in Administrative Law
Preponderance of Evidence - More likely than not -- Used in Civil Cases
Clear and Convincing Evidence - Used in Criminal Fraud/Civil Conspiracy
Indicates we have a firm believe/ strong facts and evidence
Proof Beyond A Reasonable Doubt - Used in Criminal Cases
Absolute Certainty - Not Used

Presumptions vs. Inferences


Presumption - Rule of law that remains in place unless overcome with facts
Presumption of Innocence
Presumption of Sanity
Presumption of Paternity
Presumption of Death

Inferences - Conclusions/Deductions from facts


Impermissible/Incorrect Inferences
When a series/type of crime stops when someone is arrested
Cannot assume that person arrested is true suspect
When someone invokes constitutional rights
Invoking rights does not mean the party is guilty
When the defendant does not take the witness stand
Cannot assume guilt when defendant doesnt take stand
Stack Inferences
Each fact must stand on its own

Presumptions are inconlusive or rebuttable

Complicity

Principle in 1st Degree - Actor


Prinicple in 2nd Degree - Accomplice

Conviction
Prove Guilt
Admit Guilt - Plea bargins do not show what true crime was, only what they are
charged with. Admitting to a lesser crime.

Inchoate Crime - incomplete


Conspiracy -
Solicitation - Must have corroborating (supportive) evidence
Attempted - How close did the perpetrator actually come to committing crime

Wharton Rule - legal document providing exception to conspiracy that if it


requires two people to commit crime it isnt necessarily a conspiracy.
Pinkerton Rule - Fellow conspirators bound by actions of each other

Who
What
When
Where
How
After examining all of the above you may examine the why
Motive is the why of a crime
Motive is not the same thing as criminal intent
Motive is cause or reasoning related to crime
Motive is important when determining punishment

RICO: The Racketeer Influenced and Corrupt Organizations Act - 1970


Racketeering - Organized crime for major money
Pattern of Crime
Transpires over a period of years
Statute of Limitations
Asset Forfeiture

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Legal Defense: A response to an allegation


Success of Defense
Complete/Perfect - defeats criminal allegation
Partial/Incomplete - Mitigates crime, Results in a lesser sentence or a
different allegation
Unsuccessful - Conviction

Categories of Legal Defenses


Capacity - The inability to form the necessary mens rae for criminal intent
Mental Defect
Downs Syndrome
Head Trauma
Accident
Age - Do not prosecute for criminal action between 0-7yrs old
7yrs old is age of reason, being able to determine right vs
wrong
7-14 is partially free zone depending on jurisdiction
they can be certified to stand trial as an adult
14+ is adolescence - can be certified to stand trial as an
adult
15 can be charged as adult in Missouri
17 is age of majority - responsible for conduct
Conditions
Bipolar
Cancer
No criminal charges brought against
Excuse - defendant claims that unusual circumstances should excuse
them from charges

Lack Criminal Intent - The defendant did not have criminal intent, they did
not intend to commit the crime
Law enforcement entrapment - set up
Outrageous government conduct - extreme
entrapment
Justification - Defendant admits to crime but claims it was necessary

Affirmative Defense - The defense side in a criminal case presents new facts,
which if true impact on the criminal charge
Insanity - Unsoundness of mind based on mental disease or
defect
Insanity can be raised at different times
At time of arrest
At time of trial
During incarceration
Prior to execution
Insanity is a two phase/bifurcated -
Sound mind or not - legal determination
May be examined/cross examined
by prosecutor and defense
If determined to be sane then stand trial
Diminished Capacity - Temporary Insanity - Ability to form
Mens rea
You are admitting to it, but your saying for that
period you should not be held accountable
Competency - Ability to understand
Insanity Tests - Varies throughout country
MNagten Test - Test of right or wrong
Did they know what they were doing was
criminal
Irresistible Impulse - you can not control your
impulses
Durham Rule/Product Test - clear you are suffering
from a disease
Substantial Capacity - You can appreciate the
wrongfulness of your conduct/actions
Used in Missouri
Duress
Self Defense
Castle Doctrine - If an attack in your personal dwelling
threatens human life, Necessary amount of force
needed to protect from attack against you.
Battered Person Syndrome
Automatism
Involuntary Intoxication
Syndromes
Premenstrual
Shell Shock
PTSD
Gulf War Syndrome
Iraqi Syndrome
Vietnam Syndrome
Necessity Defense - To avoid a greater crime, you committed this
crime, the right thing to do under the circumstance, the
benefits of the actions out weigh the crime
Justifiable Act
Defense of someone else
Excuse - some situation existed and they should be excused.
Lack of Criminal Intent
Outrageous Government Conduct
Entrapment

Contributory Negligence -

Competency - The ability to form Mens Rea.


Mental Fitness
The ability to cooperate

Mistake of Fact - Good Faith


Usually attached to crimes of stealing
Mistake of Age

Defenses

Sequester - To keep control of jury, ie place in hotel for evening etc

Self Defense - An unlawful action against use


What is reasonably necessary
Immediate need to protect against action

Objective vs. Subjective


Objective is fact based
Subjective is opinion based

Types of Evidence
Circumstantial - connects suspect and crime
Direct - Eye witness, personal knowledge
Documentary
Exculpatory
Expert - Information provided that no one else can provide
Fabricated - False,
Foundational - Allows for testimony, admissibility
Forensic - Technical, having to do with chemistry
Hearsay - Exceptions to testimonies, example - dying declaration
Material or Physical - objects
Medical - type of expert testimony
Privileged - in exchange for testimony we provide something
Tainted - tampered with

Jury Nullification - Jury takes it upon themselves to disregard certain evidence.


Reasonable Doubt - standard of proof
Voir Dire - Selection process for jury duty
Conviction minus weapon - Object is not necessary to prove guilt

Intoxication - Voluntary vs involuntary


Voluntary Intoxication is at best a partial defense, it does not defend against dwi
Voluntary intoxication can mitigate a charge, ie from murder 1 to murder 2
Involuntary Intoxication - Unknown that an intoxicating substance is being
ingested

Double Jeopardy - Exceptions to Double Jeopardy


When a case is eligible for civil and criminal action it can be tried for both
Forfeiture followed by legal action - If assets are legally seized a case can still be
made
Dual sovereignty - Separate governing bodies can bring the same case against
Hung Jury
Fraud in initial Trial

Statute of limitations - Time limit connected to crime


In Missouri two years

Deadly weapon doctrine


When a person uses a weapon it is inferred that the person intended the
probable consequences.
How is the object used
Why was it used
Necessity

Technology related crimes


Chat rooms
Fraud
Homicide - Someone has lost their life
Justifiable - An intentional act committed under circumstances that are a duty
without criminal blame or fault
Execution as punishment
Excusable - A killing in which there is a fault or mistake on the part of the person
taking the human life, not intentional
Self defense
Criminal - An unlawful taking of human life, purposefully, knowingly, recklessly,
dangerously
Murder and manslaughter
Murder 1 - Purposeful deed
Premeditation
Malice Aforethought
Deliberation
Murder 2 -
Malice Aforethought
Felony Murder Rule - Another major crime happens and a loss of life is a result

Manslaughter
Voluntary
Involuntary

Missed One Day After Test

Criminal Homicide vs Person taking life/Assisted Suicide


How much of a role did the defendant have in the act of suicide

Euthanasia - A merciful taking of human life


Physician assisted suicide
Oregon - Death with dignity law

Infanticide - Killing of a newborn


Safe Havens - place to take newborns to, no criminal charges
Baby Moses Law
Roe vs. Wade
Partial Birth Abortion - Abortion in far advanced stages of pregnancy
Legalized Abortion - Abortion in the first stages of the pregnancy

Robbery - The unlawful taking of property of another from them or in their presence,
intending to deprive them permanently
Composed of Theft and Assault
Use of force to commit
Types of Robbery
Ambush - Spontaneous
Has a high risk of violence
Selective Raid - Planning involved
Not as high risk as ambush
Planned Operation - Every aspect has been thought out
Lowest level of risk

Home Invasions
Carjacking

Asportation - The relocation of something or someone, taking away


From someone
Permanent situation

Rape - Key element of consent or lack there of, Gender Neutral Crime
Forcible
Statutory - Dealing with the age of a victim
First Degree Statutory Rape - Under the age of 14
Second Degree Statutory Rape - Perp is 21 or older, victim is under 17

Sodomy - unnatural sexual contact, forced oral sex

Incest - Sexual relations with relatives, closet crime

Sexual Assault

Deviant Sexual Assault

Sexual Misconduct

In over half of rape situations the victim and perpetrator have met before

Rape shield statutes - protect victims private information

Recant/Recall - to take back a statement

Date Rape - Miscommunication in social relationship

Marital Rape -
Exoneration - A correction of a conviction

Assault/Battery
Assault is a threat
Battery is a physical blow - Battery is outdated

Assault
Aggravated - using an item used as a weapon
Simple Assault - can be as light as offensive touching
Domestic Violence
Reckless Assault
Elder Abuse

Simple Assault and Reckless Assault can be charged as a Felony or


Misdemeanor

Writ of Habeus Corpus


Test #3 Study Guide

Chapters 6,7
Criminal Homicide
Robbery
Rape
Assault

Lesser Included Crimes


Euthanasia
Rape - Types of
Mass Murder, Serial Murder, Murder Free
Felony Murder Rule
Abortion
Types of Assault
Recant
Domestic Violence
Crimes of Passion - Voluntary manslaughter
Provocation
Rape Shield Statutes
Types of Sexual Abuse/Assault/Attack
Kidnapping/Elements of
Carjacking
Death with Dignity
Sodomy/Incest
Mercy Killing
Community Watch Dog Group
Immunity - An exemption from criminal prosecution
Diplomatic Immunity - Given Immunity while in the country from another country
Legislative Immunity - Temporary Immunity, elected officials are exempt from
arrest going to and from legislative sessions.
Witness Immunity -
Use Immunity - Only the testimony that is compelled may not be held
against
Transactional Immunity - May not be prosecuted for any information they
provide - Very Broad

Privilege - A Special Legal right, exemption, or immunity granted to a person or class of


person
Litigation
Arrest
Special
Testimonial
Accountant-Client
Attorney-Client
Clergyman-Penitent
Physician-Patient
Executive
Marital - Legally Married people may not be compelled to testify against spouse
Informant
Journalist - Do not have to reveal source of information
Judicial
Legislative
National Security

Terrorism
A threat or use of violence to gain a goal, causes fear
Rape, Kidnapping, Mass Murder, Assault can fit under terrorism

Terrorist Groups have specific goals


Attract Attention - Global Attention by news media
Harm Diplomatic Relations -
Cause Insecurity/Damage Property -
Feelings of Distrust against our government/ Build Distrust -
Actual Damage to People/Loss of Life, Property
HomoFighters vs. XenoFighters
HomoFighters are fighting on behalf of their own people/ Robin Hood Effect
XenoFighters are fighting for the removal of a foreign power, freedom fighters

SLA - symbionese liberation army


Patti Hearst kidnapped, brainwashed then charged with bank robbery
Stockholm Syndrome - compassion/empathy for captor
Woman are five times more likely to be victims of a violent crime.
Fear Spots - Specific locations where people fear for being victims

Level of Fear is greater when:


Little Chance of Escape
Chance for Criminal to Hide
When there is an opportunity for criminal to view the entire area

Characteristics of Modern Terrorism:


Technology - Utilization of
Travel Opportunities
TV Viewership
Violence - It can be repeated
Increase hope for a cause

Terrorism Involves
Use of threat or violent act for political purposes
Create a state of fear
Motivated violence for personal gain
Planned
Community Manipulation
Instill fear

Categories of Terrorism
Political - Generation of fear for political purposes
Civil Disobedience - Concerted violent act that interfere with normal functions of
community
Non political terrorism - Individual or group directed
Quasi terrorism - Purpose other than producing fear, but furthers a goal ie
hostage taking
Limited Political Terrorism - Actions are part of an effort to capture government
control
True Terrorism
Suicide Bombings are the worst form of terrorism
Deadly
Massive amounts of fear

Three Levels of Terrorism


National Security
Counter Terrorist Activity - CIA
Anti-Terrorism

Skipped day due to Olathe Testing

Sentencing

Issues related to sentencing


Proportionality Law - Balance between crime committed and punishment handed
down
Cruel and Unusual
Equal Protection
Race

Execution/Death Penalty
Form of execution
Mentally Ill
Juvenile

Sexual Predators
Megans Laws - Registration of Sex Offenders
Abduction
Sex Offenders are repeat offenders