Criminal Law Outline

I. Introduction to Course II. Process of a Criminal Case y y y Arrest/ Booking Complaint with each count of the crime(s) Preliminary hearing o The preliminary hearing is intended to permit the magistrate to decide whether there is ³probable cause.´ o Magistrate could allow, dismiss some, dismiss all, or include a lesser-included charge. OR Indictment from the grand jury o No need for a preliminary hearing if there is an indictment o To establish probable cause. File information with the courts o Information like the complaint, setting out the final charges. Arraignment o Enter a plea Discovery Pre ± Trial Motions o i.e. motion to suppress, motions for discovery o Plea bargaining would happen around here Jury selection o Voir dire Opening Statements Jury Instructions Closing Arguments Verdict Sentencing Entering Judgment Notice of Appeal Writ of Habeas Corpus o to bring new evidence on appeal. A. Sources of Criminal Law o Primarily comes from Statutes  Statutes passed by legislature

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III. Some Fundamental Concepts y


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Ordinances passed by local governing bodies Constitution  US constitution and state constitutions Common Law A small minority of American jurisdiction use the common law as ³gap fillers.´ Administrative Law  The state or federal legislature may delegate the authority to the agency to define aspects of a crime. Tribal Law International Law Military Law Continuing Role of Common Law Special Role of Statutes  1.Continuing Role of Common Law Burglary is an example of a common law crime Common law crimes had no loopholes because it could adapt with the crime it was presented with However, violates ³FAIR NOTICE´ Most Jurisdictions have abolished most common law crimes Common law still has a major role, even though it is essential repealed y For interpretation of statutes y Fills in the gaps in the legislation People v. Kevorkian y The interpretation of the common law here allowed for a reduced liability from murder to assisted suicide where the defendant merely is involved in the events leading up to the suicide, such as providing the means. 

2.Special Role of Statutes Primary source of the criminal law, meant to punish morally blameworthy behavior. Model Penal Code y A model complied by experts with provides a template of the formation of a penal code

The statutes enacted form the major basis for the law in every state. 2 Important Statutory Interpretation Rules y Rule of Lenity o Where not clear, lean towards the interpretation in favor of the defendant to avoid charging an innocent person Fair Import o Assume the meaning the legislature likely intended in writing the statute. Keeler v. Superior Court o Controversy over the eligibility of a fetus in the then used murder statute o A fetus was killed«is that a human? o Court found no, legislature amended the statute, including fetus, to avoid this problem




B. Quick Introduction to Proof Beyond a Reasonable Doubt o A very high burden o Each element of the statute must be proven beyond of a reasonable doubt for a conviction. o The just must find the evidence demonstrates guilt ³beyond a reasonable doubt.´ o The appellate court must view the evidence in favor of the government and affirm that ³any rational trier of fact could have found the elements of the crime beyond a reasonable doubt.´ P.29 C. A Few Limits on Criminal Law o 1. Principle of Legality  Criminal laws should be made in advance and sufficiently precise so that citizens can understand them, and know what is and is not prohibited.  Purpose To guide citizens The limit the power of the government; can only convict for what has been deemed a crime o 2. Retroactively, Fair Warning  Rogers v. Tennessee


 Reasoning: the government is responsible for enacting a statute and should be the party to suffer if there is a lack of clarity.  Rule of lenity ensures that fair warning will be held. because it was no longer applicable. New York Penal Law §5.´ i. 785.00 y ³must be construed according to the fair import of their terms to promote justice and effect the objects of the law. as in this case. the court may not have been able to find as they did as a result to fair warning. however they made changes in the common law and apply it retroactively which did not make any violations Fair Warning gives citizens notice of what is criminal behavior The common law¶s use in criminal law allowed for retroactive use when deemed necessary.  Rule of Fair Import In favor of the legislative intent ³encourages interpreting a statute to further the general purposes of the statute.e.´ o 4.  a.a the rule of strict construction. Technically speaking. courts should resolve ambiguities in criminal statutes in favor of the defendant and against the prosecution.Year and one day rule y Obsolete rule because of technological advances The court denied the year and day rule. prosecutors)  Ex Post Facto . Other Constitutional Limits  Constitutions are the ultimate limit on the content of criminal laws  State constitutions place similar restrictions  The application of a criminal statute cannot violate the constitutional rights of citizens  Many constitutional guarantees limit criminal sanctions  The statutes must be written clearly to avoid misapplications and must be understood by those who enforce them (cops. Rule of Lenity  ³The Rule of Lenity holds that where all else is equal.´ P. o 3.k.

 Deference to Legislative Definition A court should hesitate to fill a perceived gap in the statute.S. Notice  Avoiding ex post facto problems or retroactive statutes  The doctrine of due process or novel judicial interpretations The application to a defendant of a novel or unforeseeable judicial interpretation of the criminal law violates due process. To allow people to arrange their conduct so as to steer clear of unlawful acts. Substantive due process Used successfully to challenge statute that a court believes has little relationship to the public interest. and juries. o 6. Bill of Attainder Cannot single out an individual or group and punish them for a crime. Constitution must give the ordinary citizen adequate notice of what is forbidden and what is permitted. 2. while depriving them a trial.  Prohibits a legislature passing a statute from making previous activity illegal. ³ y y a vague statute violates the Due Process Clause of the U. and . even if the state argues that it does. because it should defer to democratic will as expressed by legislature rather than exercise judicial power that is insulated from democratic influence. Vagueness  14th Amendment issue  Causes the legislature to be more specific in writing a statute  The Connally Test ³a statute cannot be so vague that men of common intelligence must necessarily guess at its meaning and differ as to its application. judges. Courts require clear statutes y y 1. o 5. To prevent arbitrary and discriminatory enforcement of laws by police officers.

something was burned. o 2. o breaking it down into its elements allows you to be able to breakdown and understand any penal law. which are imperative to proving guilt. therefore the vagueness would be difficult in a situation of harassment. something was stolen o 4. Review: Harassment  A difficult crime because of vagueness o Some jurisdictions have combined stalking with definable conduct to avoid this problem. In General o every crime has elements. o Inherent elements that you need to demonstrate  you have to prove venue  you have to prove the date (statute of limitations)  the criminal o 1. IV. o 7. Causation  only arises if the statute has a harm  links the actus reus and the harm o 5. Elements of Crimes y A. Actus Reus  an act needs to be done. Mens Rea  the mental component of a crime  key feature  separates the non-criminal from the criminal o B.y 3. Actus Reus o 1. Circumstance o 3. Harm  Government must prove something bad happened  someone died.  But certain acts that would constitute harassment would be viewed as protected under constitutional rights. To avoid limiting individual freedom of speech and expression. In General  MPC y .

not a moral duty Requirement of ³wrongful act´ which means that criminal liability does not punish just thoughts or a person¶s physical condition. such as drugs or weapons. the failure usually must breach a legal duty to perform that act. sleepwalking.  y i. Omissions  i. Possession  Many crimes punish possession of an item. Must be a duty imposed by law. failure to file income tax form  Omission which breached a duty to act under circumstances where the defendant was capable of performing the act. In the US that is no general duty of care Exceptions o Vermont has a general duty of care-like statute o Parents have a general duty of care to their children. etc. not moral code. Voluntary Act  The concept of moral blameworthiness There is no moral blameworthiness if the act is not voluntary  Act alone does not satisfy the actus reus.  When actus reus punishes the failure to do something. o 2.e. it must be voluntary.  MPC . o 3. Voluntary Act not criminally responsible if you do not commit the act voluntarily Omission ± Duty only a crime if there was a legal duty to commit that act. y He was charged with criminally negligent homicide. Must be a knowledge of the legal duty to perform Sources Common law Statutes Contractual duty y    o 4. convulsion.e. The person could have chosen to refrain from the act. Expansion by the courts A man who knew he was prone to seizures chose to drive a car and ended up getting into an accident.

D. Circumstances o Criminal statutes routinely include ³attendant circumstances´ that. assault vs. punishment was for the act of being drunk in public.  i. the court found that public intoxication is different. like every element. public intoxication  Under Robinson a Cali court found that punishing addiction to drugs would violate the defendant¶s 8th Amendment right for protection from cruel and unusual punishment  Under Powell.e.k. Actual Causation y y . Cause in Fact. E. o Simplest Model of Causation  But For (a. o 5. the state must prove beyond a reasonable doubt.a. o Sometimes criminal law punishes the risk of harm  i. murder requires a death o The level of the harm can determine the crime  i. y C. though they are essential the same act. the fewer people who are likely to violate it. so it carries a harder sentence.³If the possessor knowingly procured or received the thing possessed or was aware of his [or her] control´ of the item ³for a sufficient [time] to have been able to terminate [the] possession. Harm o Many criminal statutes require the offender to have caused a particular harm or result. ´ y Even is a defendant does not have physical control of an item. intoxicated driving. Status Crimes  Punish being in a certain status Addicted to drugs.e. not for being drunk. Causation o Links the actus reus with the harm. possession can be shown if the person has dominion over it.  i.e. a burglary is done ³at night´ o As a general rule. aggravated assault the harm in aggravated assault is worse than assault.e. the more attendant circumstances in a criminal statute.

such as a heart defect  Take the victim as you find him.  Intervening under Proximate Cause Often depends on if the second cause is an independent or dependant intervening event o Courts usually will hold guilty even if the victim has a pre-existing condition. Whether the defendant should be held responsible for a result that the defendant actually caused. Specific General mens rea is said to require proof that the defendant intended to perform the physical act proscribed by the statute.  Refers to the mental state needed for criminal liability  General v. y y F. the defendant need not have intended the consequence of that act Specific intent is usually used to refer to either the mens rea set out in the offense definition or. Mens Rea o 1. In General  The traditional notion that criminal law applies to those whose mental processes make them morally blameworthy for their acts.Concurrent under but-for When two causes happen at the same time.´  Examples of Mens Rea Elements Willfully Knowingly Intentionally Purposefully Feloniously Recklessly  . both causes are equally guilt-making o MPC Model  Proximate Cause Require policy analysis to determine whether is it fair to hold defendant criminally accountable from the result. more narrowly. such as the ³intent to kill. to a statutory mens rea requiring a purpose to cause the social harm of the offense.

 if you cant distinguish which of the mens rea elements something goes in. knowingly. it was their purpose y the result of the actor¶s conscious object y The actor¶s actions can be used to infer purposefulness Knowingly (equivalent to 2nd Degree) y Involves knowledge.  If there is no provable mens rea. they allow knowledge to suffice Knowledge standard: ³practically certain´ or ³substantially certain´ y y y  b. Criminal Negligence  Mens rea difficult to establish beyond a reasonable doubt because it goes to show what was in the defendant¶s mind  Downwardly inclusive If you are guilty of a higher mens rea (type of culpability).o 2. Model Penal Code (MPC)  MPC does not make distinctions by degrees They are all murder and the categories differentiate the sentencing  Subjective: Purposely. Intent and Knowledge Motive of a crime goes to intent and helps establish mens rea. Recklessness and Negligence Gross deviation from the standard of conduct of a reasonable person. Purposefully (equivalent to 1st Degree) y The actor wanted it to happen. it goes to all of them  a. however practically certain to occur (practical certainty not part of the NY Penal Code) awareness. recklessly  Objective: Recklessly. Recklessly (equivalent to Manslaughter) y y Includes both objective and subjective components The accused must have been . awareness of the consequence of the action MPC does not limit murder to intentional killings. you are guilty of the lower mens rea(s) as well. but it doesn¶t mean certainty. then that is recklessness.

´ Subjective: defendant personally ignore a known risk Objective: nature of the risk that the defendant consciously ignore Should be aware of the substantial and unjustifiable risk that the material element exists or will result from his or her conduct.´ requires subjective awareness of a risk. and B is not harmed. and in addition. (Almost) entirely objective o standard: should have been aware of the risk.  The harm that occurs must be of the same type as the harm intended  Rarely needed for negligence or recklessness. but in the process accidently killed C instead. Transferred Intent  If A tries to kill B. subjectively aware of a ³risk´. and doing the risky act anyway Similar to ³depraved heart´ or an ³indifference to the value of human life. o 4. the risk must have been o b. even if was not. Ostrich: Deliberate Ignorance  the government can prove beyond a reasonable doubt that the defendant had knowledge of a fact if. since they usually need not be directed towards anyone. objectively substantial and unjustified o c. y y y y y ³I knew it might happen but I did it anyway. and went ahead despite this knowledge. even though not actually aware .o a. not aware of the risk a gross deviation of the standard of care of a reasonable person certain degree of carelessness. morally blameworthiness takes it about torts Criminal Negligence (equivalent to Criminally Negligent) y y y y y o 3. A is still guilty of murder by the doctrine of transferred intent. the act is reckless or negligence either way.  Same intent translates to many other offenses.

knowledge. irrespective of the presence or absence of intent. the defendant was aware of the high probability that the fact existed and the ignorance about the fact with a ³conscious purpose to avoid learning the truth. H. in this case could be a defense. o MPC  Does not adopt strict liability except for minor crimes  There is less moral blameworthiness if there is no mens rea.´ Courts worry that deliberate ignorance will allow people to be convicted of a crime requiring knowledge without this knowledge. and perhaps a circumstance and harm o Enacted to protect the public o i. speeding. the court will infer a mens rea where they believe constitution intended on  Morissette v. recklessness. o Mens rea must ACTUATE the actus reus o The court held in Jackson that the key is causation.´ y G. They also note that the deliberate indifference instruction actually revises the definition of knowledge to something like ³should have been aware under the circumstance. rather than temporal identity. chemicals o In limited occasions. or criminal negligence. that recklessly (which is also established by proof the defendant acted knowingly or intentionally) is by default included as an element. not necessary to be aware of speeding. United States Took abandoned shell casings from government bomb range. o The actor must take extra precaution since he or she will be liable for the consequence of actions. y . did not know it was illegal. pollution.  MPC holds that if the criminal statute imposes criminal liability without including a mens rea.  of that fact.e. Interrelationship of Elements o There must be a link between the actus reus and the harm is the mens rea. Strict Liability o These crimes simply do not contain a mens rea element  Usually include only an actus reus.

V.S. A. it is the defendant¶s responsibility to make it an issue in the case  Burden of Persuasion which side must convince the trier of fact of fact beyond a reasonable doubt o In the U. the two must ordinarily exist at the same time. ordinarily the harm that actually occurs must be embraced by the appropriate mental elements in the statute. y I.o There is commonly also a relationship between the mens rea and harm. where the crime occurred Where the bank robbery took place  Non-obvious elements Such as marital status in a case of marital rape. Basic Rule: Crime Elements o Standard of proof  the test that must be met to win a case in criminal law  the American standard of proof: Proof Beyond a Reasonable Doubt  how certain are you that each element happened o Burdens  Burden of Production which party has the responsibility to produce some evidence (prima facie) enough evidence to make it an issue in this case In the case of sanity. o When a criminal statute includes both circumstance and result (or conduct) elements. Proof Beyond a Reasonable Doubt y . Practice Issues o Many use a chart with three columns:  Elements  Proof  Done o What must be identified  The identity of the defendant Asking the complaining witness to identify the defendant  The proof of the venue. the government has the burden of production and the burden of persuasion on all elements as a result to the Fifth and Fourteenth Amendment. Depending on the statute.

The burden of persuasion may be placed on either the accuses (to show the elements of the defense are present) or the government (to show that one or more of the elements of the defense are lacking. A. y B. (Model #1)  the other model is that the defense has the burden or production (make a claim of non guilty by reason of insanity).) Defining ³Beyond a Reasonable Doubt´ o ³Beyond a Reasonable Doubt´ is a difficult term to define for jury instructions o Many courts hold that it is better to give no instruction because it can shift the jury one way or another. Defenses o Standard of proof  whatever the government wants it to be. (MPC model) Shifting Burdens situation o Usually for defenses the burden of production is on the defendant. Homicide Crimes y . and that is the prevailing model. It is set by the legislature of that state o Burden of production  must produce whatever any defense they want to establish  must produce evidence for affirmative defenses they depend on facts that are independent of the crime elements and do not disprove the elements.o Proof beyond a reasonable doubt protects the innocent but makes it difficult to convict the guilty. the burden then shifts to the prosecution to disprove the defense beyond a reasonable doubt. o Burden of persuasion  one view is that the defense has any burden of persuasion for any defenses established  the government wants the defense to have the burden of production and the burden of persuasion for all defenses. highest crime o Must determine what a life is«does a fetus count? y VI. o Prosecution usually tried to highlight beyond a ³reasonable´ doubt. Overview of Homicide o Only crime that carries the death penalty. not all doubt.

premeditated killing or listed felony Willful*. Pennsylvania Model 2. deliberate. Murder Causing death intentionally or knowingly ± or with recklessness and extreme indifference 3. Voluntary Murder Passion killing (heat of passion killings) Heat of passion 4. * constitutes malice aforethought y B. Premeditated Felony Murder (Listed felony) 2. Second Degree Murder Malice aforethought only (catch-all for murders. Manslaughter Includes what would be both voluntary and involuntary manslaughter under the Pennsylvania pattern The Model Penal Code 1. intoxication. Deliberate. and willful.o How to determine death  End of natural heartbeat and breathing  Brain-dead test Using EEG. Vehicular Manslaughter Grossly negligent unlawful driving. Involuntary Manslaughter Misdemeanor-manslaughter or gross negligence (criminally negligent conduct or during the commission of a misdemeanor) Misdemeanor manslaughter Criminal negligence 5. First Degree Murder Malice aforethought. determine what brain function remains Pennsylvania Model 1. etc. Negligent Homicide . depraved heart) Intent to kill* Intent to injure* Felony murder (non-listed felony)* Depraved heart* 3.

The Rule The theory is that the felony supplied the ingredient of malice. even when the murder was accidental. particular ill will. Felony Murder  a. hardness of heart. and the drafters decided that it was inappropriate to convict for murder on a lesser mental degree of fault. it is easier for the prosecution to prove an intent to kill.  Deadly weapon doctrine When a deadly weapon is introduced. cruelty. . which would constitute malice aforethought.  Presumptions that a person intends the natural and probable consequences of his or her voluntary acts. The predicate felony supplies the malice aforethought. Malice Aforethought  Difficult term. wanton conduct.o 1. requires neither malice nor aforethought  The traditional general explications of malice aforethought indicate that the killer must exhibit a significant evil nature. depraved heart. recklessness of consequence and a mind regardless of social duty. Deadly weapon: in the manner it is used. wickedness of disposition. is likely to cause death or serious bodily injury.  Distinguishing factor between Pennsylvania Model and MPC  1st degree murder Malice aforethought  2nd degree murder  voluntary manslaughter No Malice Aforethought  involuntary manslaughter  Malice aforethought needed for it to be murder o 2. The MPC¶s broad definition of murder includes reckless killings committed with extreme indifference to human life. much as a depraved heart could elevate an unintended killing to murder. The traditional American version of homicide found malice aforethought when a homicide occurred during the commission or attempted commission of a felony (as opposed to a misdemeanor) The MPC abolishes felony murder.

Inherently Dangerous Felony o It is the dangerousness in the abstract category of that felony that controls. y y ii. even if it was not their intent. but was a dangerous act in this individual case. Dangerous Act Approach o Require independent proof that this individual defendant performed some act ³dangerous to human life´ during commission of the felony. This approach does not look to the abstract dangerousness of the felony. y . not manslaughter though. not to the particular facts of the case. not any particular act of the defendant in the individual case.  In determining whether a felony is inherently dangerous.  b.Motivation for felony murder rule: deter people from committing felonies because they will be held liable for any murders that happen during the felony. o ³Totality-of±the-circumstances´ approach  the test is that the defendant¶s conduct must have been ³dangerous´ not merely because the felony was abstractly dangerous. Merger. Etc. the court looks to the felony in the abstract. Limits on Felony-Murder Rule applies to Second Degree Murders i. Nature of Felony y Listed Felonies o Limits the use of the felony-murder rule to only particular felonies.  Opposite of inherently dangerous The merger rule provides that the legislature intended that certain felonies should not be the predicate offense for a felony murder prosecution.

or in other words. because that was not the legislative intent. causation means that the death occurred because of and during the perpetration or attempted perpetration (or commission or attempted commission) of the felony. because by definition manslaughters are felonies in which death results. and not for a killing of his cofelon by a police officer. when the dangerous felony (or dangerous act) results in the victim¶s death in a manner that is foreseeable. But-for o This sort of requirement is satisfied when ever the death would not have resulted but-for the defendant¶s conduct Proximate cause o Exists when there is ³foreseeability´: that is. This means that there must be temporal and physical relationship between the felony and the death In general terms. and so cannot be merged up into 2nd degree murder. who is treated as the defendant¶s agent. in a way that is related to the dangerousness inherent in the felony or act. Causation (Res Gestae Rule) y y y y y y . felony-murder rule would swallow up these lesser homicides. an unlisted felony murder. Death of Co-felon issue (two approaches) o ³Agency´ Theory (Narrower)  hold a defendant liable only for killings committed by his cofelon. a low-level felony. this means that ³but for´ and often proximate cause rules must be satisfied. who is not the defendant¶s agent. should not automatically be felony murder. For example.y If not for merger. involuntary manslaughter. especially since those murders are y iii. For felony murder.

e. Willful. murder. etc. Premeditation-Deliberation (First Degree Murder)  1. o 3. the actor has a cool mind. More than a momentary duration Reflection planning Can occur in an instant. Listed Felony Murder i. arson. rape. robbery. Deliberate y the killer acted with a cool state of mind not under the influence of violent passion reflection y cool mind Premeditation y y y y y  Requires some advanced planning. and Premeditated Willful y when the killer¶s purpose in engaging in the actus reus is to kill another person y intentional killing with specific intent y specific intent = purpose of act is to kill. requires only the mens rea of the predicate felony o 4. OR 2. kidnapping. Has a scheme and contrives a means to accomplish it. Deliberate. and actually has reflected on the coming event.´ stemming from self-defense. Voluntary Manslaughter .  Exception: using a shield or hostage who is killed does not supply protection under agency theory o ³Proximate Cause´ (Broader)  hold a defendant liable for the death of his cofelon on the ground that it is a foreseeable result of the cone of violence set in motion by the defendant¶s participation in the underlying felony.usually seen as ³innocent.

Second Degree Murder Depraved Heart  This type of malice aforethought involves extremely reckless conduct that has been described in various ways and lacks a generally accepted . ³legally sufficient´ y words alone are not enough some action needed although some words are enough.   In general terms. suddenness No cooling off a killing while you are enraged. Some require the killing to take place right after the provocation while other jurisdictions allow a passing of time. not after you have cooled down and thought about it 3. Defendant Actually Provoked These points are all jury questions There is a subjective and objective evaluation y y y      o 5. Requires the killing to be spontaneous and rash. 1. words not enough are not enough is a generalized statement o Action words o i. voluntary manslaughter under the American traditional model punishes someone who kills in the sudden heat of passion as the result of legally sufficient provocation. ³I just raped your three year old daughter´ 4. Reasonable Person Would be Provoked would have caused a reasonable person to act rash A reasonable person would have been outraged 5.e. Legally Sufficient Provocation there can be no voluntary manslaughter if there were no provocation. Insufficient Cooling Time. no matter how inflamed or irrational the defendant had become. ³Heat of passion´ killing Model Penal Code uses Extreme Emotional Distress 2. the victim plays some role in their own demise. but must be reasonably related. that might be one reason for the lower sentencing.

which involves an especially significant departure from the conduct of a reasonable person.   o 6. though it clearly requires more carelessness than the ordinary negligence appropriate for tort relief and the ³gross negligence that would constitute involuntary manslaughter. while depraved heart is a depraved indifference to life.  Criminal negligence Involuntary manslaughter traditionally applies to someone who kills as the result of criminal negligence. Distinction between Involuntary manslaughter and depraved heart . Differentiate from Involuntary manslaughter Involuntary manslaughter is a reckless homicide.common law definition. hence the intent to kill. Example: Russian Roulette. Jurisdictions differ on whether to evaluate depraved heart on purely objective terms or whether to include a subjective component. ³Abandoned and malignant heart´ ³conduct that evidences a wanton and willful disregard of unreasonable human risk Malice can be implied if the defendant unintentionally killed the victim but acted with a depraved heart. hence is not First degree murder Depraved heart Extreme indifference to human life. y  Unlisted felonies Murder happens that is not listed as a First Degree murder. which is the malice aforethought Intent to do Serious Bodily Injury The intent constitutes the malice aforethought The murder lacks willfulness. lacks the requirements of First Degree murder Has the willfulness. Involuntary Manslaughter  Does not include malice aforethought and the killing is unintentional.  Intent to kill Without premeditation and deliberation.

 Unlike Penn Model which requires provocation.  Gets rid of the malice aforethought concept. may be insufficient to convince the trier of fact that the ³extreme indifference´ element is satisfied.  The liability for murder under the MPC is not automatic because the prosecution may still have to prove that the defendant acted recklessly during commission of the felony since the presumption. Model Penal Code Approach o Murder  Defined as a criminal homicide that occurs purposely.  MPC¶s Reckless manslaughter = Penn Model¶s Depraved heart . or Recklessly under circumstances manifesting extreme indifference to value of human life. knowingly. MPC requires only reasonable explanation or excuse.not separated into two degrees like the Penn model. Usually this includes during the commission of a misdemeanor.´)  Misdemeanor manslaughter Unlawful Act Doctrine y A person is guilty of involuntary manslaughter is he or she commits a homicide during the commission of an lawful act other than a felony triggering the felony murder rule.y Often depraved heart requires a subjective awareness of a serious risk and a decision to press on anyway (³I knew it was risky but what the heck´). while criminal negligence involves the failure to perceive the risk (³I should have seen the risk but failed to do so. or Committed under influence of extreme emotional disturbance for which there is reasonable explanation or excuse. o Manslaughter  Recklessly.  Only one murder. y No Negligence Civil Negligence Criminal Negligence Vehicular Manslaughter Depraved Heart First Degree y C. alone.

merely being negligent or even reckless is insufficient.  Derives from torts  No present ability to inflict harm is needed here. o Assault and battery are usually considered misdemeanors. o What parts of the Penn Model does the MPC not have. Attempted Battery  the defendant failed an intentional effort to inflict bodily injury on the victim. not just the apparent ability. Assault.  Some jurisdictions require the present ability. o Battery  Occurred when the actor intentionally inflicted physical harm or at least an ³offensive touching´ on the victim.  Extreme recklessness is like depraved heart but much more intense Presumption of extreme indifference to the value of human life VII.  Usually the victim is held to the standard of a reasonableperson with normal sensibilities. Frightening  intentionally cause someone to be reasonably frightened of suffering immediate bodily harm.  MPC has no misdemeanor manslaughter  Malice Aforethought not in the MPC  Deliberate and Premeditated is gone from murder. y A. and they added knowing. o 2. Is a usually a felony when:  Injuries inflicted are serious  A dangerous weapon is used .  Must come close to actually inflicting the harm Different from inchoate ³attempt´ crimes  Focuses on the actions of the defendant. Assault o 1.  Ordinarily for this type of assault the defendant must intent to frighten. not the reaction of the victim. Etc. Sexual Assault.o Negligent Homicide  By criminal negligence.

law enforcement officer. Other offenses. or 4. for example an intent to kill. child.11 No intent needed. Aggravated assault Proof beyond a reasonable doubt of serious bodily injury (a specifically defined. &  4. in which case mere bodily injury is required. pointing a firearm toward someone) to child endangerment. Aggravated assault. Simple or basic assault.  3. MPC tests aggravated assault on objective factors. involving conduct ranging from threats or recklessconduct (e. which may (or may not) include both attempted battery assaults and conduct that is intended to frighten victims (specific intent requiring proof beyond a reasonable doubt of an intent to cause physical harm or to produce apprehension of battery). o MPC  MPC § 2. MPC requires more significant harm for assault. y  .e.  2. which involves injurious or offensive touching. the occupation or qualities of the victim. Battery. 3. an especially blameworthy mens rea (grave intent). 2. not mens rea. o Assault is very different in each jurisdiction o Assault-type contact  1. Does not cover unwanted physical contact. especially serious injuries. enhanced by factors such as 1.g. unless a deadly weapon is used. for example being a law enforcement agent or corrections officer or being very young or old (specific intent. recklessness is enough. objective standard). elderly. before a conviction for aggravated assault is justified. These offenses cover gaps caused by mens rea requirements or physical elements of assault so that they otherwise might not be crimes.Involves a special protection victim: i. felony). MPC combines all forms of assault (simple and aggravated) and battery into one crime. or an attempt to cause it. use of a weapon.

45 Stalking o NY Penal Code §120. y . Stalking o Repeated efforts to harass someone and cause the victim to be in fear.  The government need not show the defendant intended to carry out his threats. o If a battered person files a complaint.12 Menacing (harassement) o Stalking is a recent crime that is nationwide under 18 U.  Sometimes the test is objective: would the conduct cause the reasonable person fear.C. the state will still continue the case. o Aggravated assault  Stalking done in violation of a court order prohibiting the act. as long as he caused the fear.o Defense  Consent Victim consented to the harm. Ordinarily the fear must be of physical harm. without the support of the victim. o NY Penal Code §120. §2261A  Punish people who repeatedly are physically close or make threats to someone or contact that person in a manner that induces fear in the person harassed. but does not apply to serious injuries. y B. then decides to rescind their testimony. Harassment. they allowed to arrest at any time if they find probable cause. but some states also include causing fear of sexual intrusion or even property damage.  Mens rea Intend to do the prohibited act Must do the act for the purposed to cause the victim fear and/or anxiety.S. Domestic Violence o American jurisprudence have adopted a host of criminal laws punishing violence among people in a family-type relationship. C. o No spousal privileges o If the police are called.

 Possession Possession is similar to custody but involves a legally greater dominion over the property. Basic Property Concepts (Terminology)  Custody A person has custody of personal property when he or she has physical control over it. there is no crime. Ownership (Title) y  . Fraudulent Conversion. Property Crimes y A. Fraudulent Breach of Trust. then convert Acquired Possession Larceny Larceny by trick Extortion Embezzlement. Overview A Chart of Tradition Theft Crimes How Acquired Stealth Deceit Threats Rightfully. such as a renter leaving the rented car in a parking lot. usually for a very short period of time and usually for a very limited purpose. Overview o 1. Larceny by Bailee Acquired Title n/a False Pretenses n/a Shopping [If you rightfully acquired title.VIII.] o 2. Constructive possession When not in immediate possession. since the person with possession has actual or constructive control of the property with the intent to possess it and the right to exclude others from possessing it at that time.

³Regular´ Larceny Common law crime Six elements y (1) A trespassory o In general terms. or asportation. making gaining possession sufficient. Only the lawful possession of the property. (greatest amount of rights) Abandoned Property is abandoned if the person with title to it relinquishes all interest in the property.  A person who owns property has title to it . is transferred. which means without the consent of the victim or without some other legal justification for taking someone else¶s property (2) Taking and o Also known as caption. as according to an express or implied contract. Bailment The delivery of personal property from one person (the bailor) to another (the bailee) in trust for some special purpose. The rights and duties of the parties as to the property depend on the purpose of the bailment and the terms of the contract y B. o MPC does not require this element. (3) Carrying away of o The third element of a larceny is carrying away the property. the thief must obtain actual control or domination of the item. To constitute a taking sufficient for the crime of larceny. unlike traditional y y . such that it dispossesses another of control over the property. The person who owns property may dispense with it as he or she wants. Larceny  a. which involves the slightest movement of the property. and not ownership. Title refers to ownership of the property. Traditional Approach o 1. larceny requires that the property be obtained by trespass.

o Permanently does not necessarily mean forever. y . but doesn¶t know where). tress. but domesticated animals were y (5) Of another person o Larceny is a crime against possession and not ownership o If the thief had possession and then decided to convert the property. then the thief committed larceny when he or she took the property. Not that the intent is only to deprive. could be a means for losing the case. But if the thief had mere custody. (6) With intent to steal. o Wild animals were not included. not ownership!! o Real property (homes). crops. were excluded. o Larceny is a specific intent crime. the crime was not larceny. y (4) Personal property o To qualify for larceny. requiring proof that the defendant intended to permanently deprive the possessor of the property. etc. the property must be both tangible and capable of being possessed by an individual o Larceny is a crime against possession. taking that property is larceny.common law where. if this element is lacking. but simply an extended period of time. not necessarily for the sake of obtaining a gain from the act. with (constructive) possession residing in someone else. o Lost property  Whether the owner lost (doesn¶t know where it is) or mislaid (put it somewhere.

the employer has possession  It is not larceny. Jones gives a watch to an employee of the master for the master to fix it  In his situation. he did not take it from anyone else¶s possession This is embezzlement He was an employee Ignorance is a defense here when the accused sincerely believes that she is not ³depriving´ the true owner.´ the element of fraudulent obtaining of possession became the equivalent of the asportation and caption that would underlie a trespassory taking. y Permanentis like the seventh element of the crime Employees o An employee who is given custody of something for business purposes. Jones  The employee has custody If the employee kept it. (deception substituted trespass. Jones gives it to the employee to give it to the master  Mr. . and then keeping the property. o Master Employee 3rd Person o Master give package to employee and tell him to take it to Mr. the English court found that a thief committed ³larceny by trick´ when he obtained possession of a horse by telling the owner that he intended to use it for only half a day. y  b. The court said that in ³larceny by trick.) Getting possession by lying to the owner. but actually he planned to sell it at an auction. Larceny by Trick In Pear¶s Case. if he or she is guilty of larceny because the taking from the possession of the owner of the business. it would be larceny o Mr.

and not an opinion. i.  The statement must relate to a past or present fact and not future conduct or conditions.   . The distinction between them is based on what interest the defendant obtained means of the misrepresentations. Cannot be statements regarding the future. Larceny by Trick This is a transfer of ownership. not just custody. False Pretenses v. not of possession. Possession given but the possession is kept past what was expected. and y An intent to defraud The victim must rely on the false statement. since the bailee has possession. however can be if the statement is known to be false. Forgery and writing Bad Checks has to include a transfer of title. intending to defraud the victim.  An omission can be the basis for a false pretenses charge if the defendant has a duty to make disclosure to the victim. A bailment includes a special relationship. Larceny by Bailee Often bailment is made through a contract.Done with a dirty mind  c. It may be delivered in writing. to avoid problems regarding debt. which must be material to the transaction transferring title.  Puffering or other opinion situations regarding sales are usually not covered by false pretenses. knowingly misrepresents a present or past fact which induces the victim to give the defendant title to property. or by other conduct that conveys information. False Pretenses  False pretenses is a statutory offense in which the defendant.e. by the salesman  The statement must actually be false.  Intent and knowledge Must prove two mens rea elements: y Knowledge that the fact is false. orally. o 2.

or will have custody.e.y If the defendant acquired title to the property from the owner through a material misstatement or omission.´ although there need not be any pecuniary gain from the conversion.) Embezzlement is a specific intent offense. the offence is false pretenses. gives possession voluntarily.  Get the possession in a clean way then change their mind  Embezzlement Must be a servant. and then unlawful possession Embezzlement Clean mind at time of taking the property   .e. slight movement.  Embezzlement is different from larceny because the victim of embezzlement entrusts the property to the defendant. then the crime is larceny by trick. i. If the defendant merely acquires possession through false statements. then converts to own use Larceny victim has possession.   y Distinction with larceny by bailee Some jurisdictions refer to embezzlement as fraudulent breach of trust or fraudulent conversion. The focus on serious interference distinguishes embezzlement from larceny which requires only asportation (i. agent. but need not be to permanently deprive. and the embezzler actually may not get anything personally from the conversion. y o 3. but thief obtains unlawful possession. The conversion in embezzlement must be a serious interference in the owner¶s property rights by the defendant who takes the property for ³his or her own use. Larceny ± Embezzlement Distinction Embezzlement possession. and the defendant then converts it to personal use. Embezzlement  Embezzlement if a statutory crime to cover the case of an employee who received property rightfully ± with a clean mind ± as part of his or her job or position of trust and then had a change of heart and wrongfully decided to convert the property to the employee¶s own use. but the intent is to fraudulently convert the property to personal use.

the combined o Colorado Model (most typical consolidated approach)  The Colorado statute looks at the defendant¶s mens rea when the defendant either obtains or exercises control over the property.  Mens rea also consistent with intention to deprive the owner of the item permanently or at least knows that his or her treatment of the item will cause the permanent deprivation.e. Mens Rea: the defendant had knowledge that the property was stolen. Often established on circumstantial evidence.Larceny by trick Acquired possession by trickery. by trick. and in some instances by embezzlement and even false pretenses. or by deception. Receiving Stolen Property o Receiving stolen property reaches those who receive property that has been stolen with knowledge that it was stolen and with the intent to deprive the owner of the property. but then having a change of mind. defendant paid y y y   . y C. i. Ordinarily property is considered to be stolen if it was obtained by larceny or robbery. Can include being taken with a clean mind.  Reaches people who obtain or control property by various means: without permission.  For receiving stolen property. o In addition to an ordinary taking. Modern Consolidated Approach o Model Penal Code §223 (adopted in most jurisdictions) o One goal of the MPC revision was to eliminate many of the traditional distinctions in theft law to permit the prosecution to indict a thief without having to make decisions about technical issues such as whether the thief had possession or custody at the time the property was taken. NY Penal: Criminal Possession of Stolen Property §165 Usually the severity of this crime is related to the value of the property taken. the property is received when the defendant obtains actual or constructive possession of it. Many jurisdictions have also expanded this crime to concealing the stolen property with knowledge that it was stolen with the intent to deprive the owner. D.

05)  Where larceny requires for a substantial amount of time. then he or she does not have the mens rea to deprive the real owner of their property. writing a bad check. Joyriding (§165. therefore were not covered by traditional theft crimes or the modern consolidated approach. since it does not require any particular amount of time to be held guilty of joyriding. o 3.00 + Bad Checks . falsifying documents y Some resistance to this. In other words. i. salons o 2. with the intent to defraud. Computer processing. o This is included in the modern consolidated approach  This consolidation removes the need to prove whether the possessor or recently stolen property stole it personally or received.e. i. Theft of Services (§165.15)  Services are not tangible property. An Aside on Ignorance  If the defendant does not know that the property is stolen. The person has created or altered a document that is not genuine. hotels. y E. altersor executes a document that is not the document it purports to be. joyriding allows for punishment where defendant takes the car of the victim for even a short amount of time. therefore Theft of Services was instated to protect these services.§190. o 1.  These statutes may include some or all of the following Knowledge Corroboration Similar transactions Recordkeeping Strings by law enforcement o Usually receiving stolen property is punished the same as the theft of that property. Forgery (§170.00)  Forgery involves someone who. o The person who received the stolen property is often known as a fence.Second Mens Rea: intent to deprive the owner of the property. Gap Fillers o 1. as it was traditionally a civil issue .e.

Some jurisdictions extend robbery by stating that force need only be used ³in the course´ of a taking (MPC Approach)or used to ³retain possession´ of the stolen items o MPC Approach robbery provision applies only if the defendant commits or threatens serious bodily injury. The force or treat of immediate force used to take the property need not be significant. or someone in the immediate vicinity y Threats of future harm would be extortion.´ capital murder is most prevalent when murder happened during a robbery. Theftish Crimes. but could apply as well if it is directed towards friends. therefore an lessening of the elements could lead to an increase is this likelihood. Sometimes Violent y A. Harm need not be to the victim only. o Larceny + 2 elements  Use of force or a threat of violence The central element of robbery is that it is a taking accomplished by the use of threat of immediate force.IX. Timing of Use of Force y Robbery traditionally requires that the use of force or a threat of violence must occur before or at the time of the taking and must be the reason that the taking occurs. y . Robbery o A serious crime because of the violence and real danger of immediate serious physical harm it presents for the victims o Because this happens to be what would seem to be a ³recipe for a bad situation. family. o Usually not part of the consolidated theft statute. but it must entail more than the force required to obtain possession of the item. o Thus a key issue could be the exact moment when the theft occurred. o The elements of the crime are important since it is common to lead to capital punishment when a murder is involved.

y The key is that the area is sufficiently close to the victim to be under the victim¶s control so that the victim could have prevented the theft had the robber not used force or the threat of force. bracelet. etc.o MPC also removes the ³from the person´ requirement.e. ring. it is still in the owners possession at the time of the force. (Dangerous and deadly weapon terminology will differ amongst jurisdictions) Dangerous weapon y y Broad term that can include many weapons used in unspecified manners Need not be an intuitively dangerous weapon if it could be used in such a way to inflict serious injury. Deadly weapon y Narrower term that would require the deadly weapon to be used in its expected use.e. purse. because of the heightened likelihood of harm to the victim. Taking from the presence includes both actual and constructive presence. meaning that when the force is used after the taking. o i. Taking from the person is from the victim¶s body y y i.  Person or presence of victim It must be taken from the person or presence of the victim This is what makes robbery so serious. victim is tied up in living room. y Others extend robbery by claiming that it is still in the possession of the owner under the ³constructive possession´ doctrine. . watch. and robber takes items from living room and other rooms of the house o Aggravated Robbery  Increased penalty when a dangerous or deadly weapon is used.

y In one deadly weapon jurisdiction. (a. Extortion o Involves intent to take property by threat of present of future harm to a person or property.e.C.a. therefore a federal statute eliminates jurisdictional problems. y Variations Some jurisdictions also include harm to reputation or property Some jurisdictions require the property is actually taken while others hold the threats to be enough. The federal statute adds the element of interstate communication. Also since cars easily travel over state lines. a unloaded gun could only be a deadly weapon if it were to be used to hit the victim on the head. An intermediate class of cases where the offender takes property from the person of the victim but does not use enough force to amount to a robbery. plus the requirement that the taking be from the person of the victim. robbery.  y B. y  Larceny from the person Purse snatching Same elements as larceny.   . blackmail)  Overlap with robbery Present danger Usually the higher offense. a toy gun was a sufficient deadly weapon. Carjacking 28 U. y Sentencing in between larceny and robbery. § 2119 Would be technically covered by robbery. however the government wanted to do more to deal with an increasing problem. will be charged when there is an overlap with robbery and extortion Robbery is usually with a greater force Extortion covers more threats than robbery. in another a perceived gun in a defendant¶s pocket was a sufficient deadly weapon Usually a statement of having a deadly weapon is sufficient.k.o i.S.

Some jurisdictions extend it to forcing the victim to do acts he or she does not wish to do. Some jurisdictions include extortion as part of their consolidated theft statute, while others keep it as a separate offense. o Defense  Many modern extortion statutes include a defense that allows a person to demand the return of property or reasonable compensation for a loss. i.e. I¶m going to call the police unless you give me back my watch. Rightful owner is simply trying to get back their stolen property. o More serious that larceny, embezzlement, and false pretenses, but less serious than robbery. o Negotiations can sometimes include extortion-like statements, however they are not included in extortion and are allowed. o In every jurisdiction now but differs greatly between locales. o MPC  Broad and open ended ³7. Inflict any other harm which would not benefit the actor.´  Requires it is obtained  Affirmative defense It is not extortion if it is done to reclaim property y y It may be another crime, but it is not extortion C. Burglary, Trespass o Burglary  (1) Breaking and Must break into a structure Need to move to a material degree something that barred the way to the structure, like a closed door Falsely entering by lying about identification can constitute breaking Many modern criminal codes dispense with the requirement of a breaking, simply reaching those who enter or remain in a building without permission.

MPC §221.1  y Requires only an entering and not a breaking. (2) Entering of a an entry is accomplished by the intrusion into the building of any part of the body, even a finger, and in some cases the use of an instrument, such as a flashlight, used to effectuate the entry of the felony. Could be for only a minute, such as if the burglar hears a noise and runs away. Need to present direct of circumstantial evidence linking the defendant to being inside the house. Usually not a burglary if invited in and then steal, unless the stolen item was in a room of the house into which the defendant was not invited. Even entering into someone else¶s ATM account can count. Does not include someone who breaks into a home for the thrill ± does not have the required intent. (3) Dwelling Traditionally, a dwelling was satisfied when it was a place inhabited by people, regardless if they were home at the time of the burglary The element has been expanded in modern times to include almost any building or structure. The sentencing is usually worse when the dwelling or structure is occupied at the time of the burglary. MPC §221.1  y No need to be a dwelling (4) of Another The dwelling must be of another The burglar could not be guilty if he or she had the right to inhabit the building. Many modern statutes revise the ³of another´ requirement by stating that the entry must be unprivileged or without permission. (5) at Night Different definitions  

A person could not be ascertained by natural light Sunrise (or 30 minutes before) to sunset (or 30 minutes after) Today, usually does not only include at night, but it will commonly be seen as aggravated if it happens at night. y y  (6) with Intent to commit a felony Specific intent crime Can be seen as an intent crime because as long at the time of entering, the defendant had the intent to commit a felony, even if he does not complete taking anything from the house they will still be guilty of burglary. Modern burglary statutes have expanded this element to intent to commit any crime. y Also to deal with the problem of proving that the goal was not just petty theft (determined by worth of what was intended to be taken), the intent was expanded to include intending to commit a felony or a theft. Intent to commit any crime will do

MPC §221.1 y o Trespass  Trespass means entering property without permission.  You must know you do not have permission to do so  Remaining is also important  NOTICE NO TRESPASS signs are the notice for the person that the are not allowed to trespass upon the land Assurance that they can charge with criminal trespass if someone does enter onto their land.  Criminal trespass is almost always a misdemeanor X. Preparatory Crimes y A. Overview o Allows the law to intervene before the target/object crime has happened o Allows the law to identify and deal with people who demonstrate a willingness to commit crimes. o To deter further activity, rehabilitate the offenders, punish them for creating the risk of the target crime, and perhaps incapacitate them from committing the crime.

y . and The different tests of the actus reus (1) theintent to commit the target offense. o Usually would not have attempt + the crime o Could have solicitation + the crime or conspiracy + the crime. etc.  Target Attempt Conspiracy Solicitation  y MPC Punishes all three the same and the same as the target crime. o Elements  (1) Intent to commit the crime allegedly attempted (mens rea). they can still convict on the attempt to complete the target crime.  (3) themens rea required for the target crime. therefore is the prosecution is unable to prove the target offense. y The intent to do the conduct that satisfies the actus reus of attempt. and so the defendant must also have the mens rea for the object crime. y this is a specific intent element. (2) theintent to engage in the conduct constituting the attempt. Often the facts proving one of these also establishes the others. but not solicitation + conspiracy o Some jurisdictions limit charges to only one inchoate crime. o Punishment of inchoate crimes is linked to the punishment of the target crime. B. Specific Specific attempt provision or provide for enhanced punishment for those who attempt a particular crime o Attempt can be a lesser included offense. Attempt o Recognized by every jurisdiction by statute o Two varieties  General General attempt statutes that create a generic offense for an attempt to commit virtually any crime authorized by the state.o Solicitation/conspiracy punishes group activity. Attempt is not a completely separate crime. y Usually established on circumstantial evidence. including the defendant¶s words and conduct.

´ The person must engage in the last proximate act. The emphasis under this analysis is less on what y y Last Act y y Indispensible Element y y . y y  Attempt is committed when that imaginary line is crossed. but is commonly used as a The attempt is incomplete if there is any indispensible aspect of the criminal endeavor over which the actor has not yet acquired control Some courts follow a less rigid formula that looks to whether an act. Theory: should only be deterred when it gets dangerous. over which the defendant has no control. Strictest approach which most courts have moved away from. Looks primarily at the physical aspects of the conduct to determine how close a defendant was to the actual commission of the offense. Courts use the language: ³a direct movement toward the commission of the offense after preparations are made´ or where the defendant ³is so near to the result that the danger of success is very great. remained to be done to commit the target crime. (2) sufficientacts in furtherance of that intent. The actus reus of attempt requires the act be of sufficient importance that it goes beyond what has historically been called mere preparation into the realm called perpetration. have done everything the person believes necessary to bring about the intended result. Presents a problem for law enforcement who want to intervene as early as possible. that is. (actus reus) The different tests of the actus reus Dangerous Proximity y y The overt act required for an attempt must be proximate in a physical sense to the completed crime.Must show intent was for the target crime.

Unequivocality/Res Ipsa Loquitur y y An attempt is committed when the actor¶s conduct. and whether that intent reached the point at which the criminal object is sufficiently clear. The focus is on whether the conduct is sufficient to infer a defendant¶s intent. taken as a whole. so the time and place of an intended crime take on considerable importance. manifests an intent to commit a crime. what transforms a person¶s conduct from preparation into perpetration is undertaking an act that can have no other purpose than the commission of the target offense. ³The thing speaks for itself´ In criminal law context. in the ordinary and natural course of events and without interpretation from an outside source. The question is whether any particular act short of committing the crime can be said to demonstrate unequivocally a person¶s decision to engage in criminal conduct MPC §5.01(1)(c) and the majority of jurisdictions allow a conviction for an attempt if a person ³purposely does or omits to do anything which. it is likely to result in the crime. Under this test. under the y y y SubstantialStep y . y y y Objective test in some locales. The approach looks at whether there is an act which. Probable Desistance y The conduct constitutes an attempt if. in the ordinary course of events. would result in the commission of the intended crime except for the intervention of some extraneous factor.the accused has don¶t than what remains to be done. the act is such that it demonstrates the defendant¶s intent to commit the crime with need for further evidence of how close the person came to completing the crime.

´ y The government must also prove that the substantial step is ³strongly corroborative´ of the person¶s intent to engage in the crime.e. o Must show a clear intent to commit the act. Not a defense to attempt crimes and the defendant can still be held liable. o Some jurisdictions believe it to be impossible to have an attempted reckless crime (i. to catch a predator. Traditionally. mistake property as abandoned. A mistake is not a defense y  y i. manslaughter) y o Impossibility  Factual Impossibility When the defendant is mistaken about the facts surrounding the crime such that it cannot be accomplished. pickpocket tries to steal but the pocket was empty. but could not accomplish the crime because of a mistake about the legal status of a relevant factor. concealing unstolen property thinking it is stolen. Legal Impossibility When then defendant tried to do something that is not a crime. i. legal impossibility is a defense y Hybrid Legal Impossibility o When the defendant has an illegal goal.e.e. Some jurisdictions raise the bar by making it necessary to leave no reasonable doubt as to the defendant¶s intention to commit the target crime. ³True´ Legal Impossibility o Where there would ne mo crime even if the object of the crime had been fully accomplished. y . o i.e.circumstances as he believes them to be. is an act or omission constituting a substantial step in a course if conduct planned to culminate in his commission of the crime. shoot a dummy believing it to be alive.

´ Inherent Impossibility A person. forge a prescription for a drug now sold over the counter. o i. o Most jurisdictions do not recognize this as either factual or legal impossibility. of possible unsound mind. voodoo dolls. o Abandonment/Renunciation  Common Law No abandonment defense Even without the defense. for now and in the future Prevent Commission of Target Crimes o The defendant cannot use the defense if he abandons. but the crime still happens y y o Indications of preparatory crimes  Communicating a threat . Impossibility is not a defense ³if such crime could have been committed had the attendant circumstances been as the accused believed them to be.e.  y i.  Modern Statutes (Including the MPC) To use as a defense.e. Most jurisdictions have eliminated impossibility with the exceptions of ³true´ legal impossibility. however it is a defense to attempt crimes. must be by his/her own choice. Complete Abandonment o Must completely abandon. tries to accomplish a crime by means that would make accomplishing the crime inherently impossible. the abandonment must satisfy the following: y Voluntary o Cannot be because of fear of being caught. o The crime the defendant thinks he is committing a crime but there is no such crime. abandonment could show the lacking of perpetration.

and therefore attempted assault here would not be a crime either.01(1)(a) the actor ³purposely engages in conduct that would constitute the crime if thaattendant circumstances were as he believes then to be´.01(1)(c) extends liability for attempt to those who take a substantial step toward the target crime. The defendant believed that the crime will occur without the need for the defendant to take any further action. Done everything toward completion y §5. intent to commit the object crime. but the defendant failed. y Substantial step y .01  Actus Reus and Mens Rea Must have the mens rea of the intended crime. it would not be assault but simply attempted murder Since assault is an attempted battery. then there is no crime. According to the MPC. o MPC §5. or §5.01(1)(b) ³when causing a particular result is an element of the crime. §5. plus a substantial step. Must also engage in conduct designed to accomplish the target offense. Possession of Burglary Tools o Assault  Assault as Attempted Battery Applies when the intent was only to injury If the intent was to kill. you cannot have an  Assault as Frightening If the person is not actually frightened. Defendant acted for the purpose of committing the target crime o 2. does or omits to do anything with the purpose of causing or with the belief that it will cause such result without further conduct on his part«´ o these two sections require two mens rea components o 1.

impossibility is only a defense if it negates the mens rea of the target crime. o Commonly it is a law enforcement officials that are solicited o NY Penal Law §100.  Renunciation §5. §5. under circumstances manifestation a complete and voluntary renunciation of the person¶s criminal purpose.01(3) by making it a crime to aid another in the commission of a crime even if ³the crime is not committed or attempted by such other person.01(1)(a) and (b) o Defendant liable if they purposely engage in conduct believing it will result in the crime. the MPC has removed the impossibility test.´ Impossibility defense Because the subjective approach of the MPC focuses on the intent of the accused.y Must show the defendant¶s purpose in engaging in conduct that would be a substantial step.01(4) recognizes an affirmative defense of renunciation if the person ³prevented the successful commission of the offense attempted.00 o The limitations on solicitation differ by jurisdiction. y §5. defendant is still guilty.  y C. with the intent that the other person commit the target crime or participate in its commission. yet almost every jurisdiction has a solicitation statute.01(2)provides that the substantial step be ³strongly corroborative of the actor¶s criminal purpose. Solicitation o Solicitation is the crime of asking another person to join in a course of criminal conduct. Essentially. and the belief that the attendant circumstances are such that the crime can occur. supply a gun for a robbery. but the robbery still happens. .´ y i.´ y  Aiding an attempt The MPC also expands attempt liability is §5. solicited or conspired.e.

if they only supply the weapon they are only a accomplice The MPC rejects this approach and uses more expansive terminology. y o Uncommunicated Solicitation . punished less severely than an attempt crime  Punishing group activity. incite. which is usually more dangerous than a criminal acting alone. encourage. including the weapon example as solicitation. order. o Elements  Actus Reus Involves some communication. A request for assistance in committing a crime is not a solicitation if the recipient is not being asked to participate directly in the criminal conduct. regardless of if solicitation is successful.e. o i. advise. because though they are asked to do the conduct. Solicitation differs from the situation when a primary party uses another person to commit a crime unbeknownst to the other party. MPC extends to misdemeanors. and hire. The use of an innocent instrumentality would not satisfy the mens rea. invite. o Usually but not always.  Indirect Assistance y y Innocent instrumentality y  Mens Rea Solicitation requires that the accused act with specific intent. The solicitor¶s purpose is to have the recipient of the communication engage in the offense solicited. counsel. request.) o Impossibility not usually a defense for solicitation.some say felonies. it is not communicated that the purpose is a criminal offense. either written or oral y Command. o Once the solicitation occurs it continues until the crime committed (important for statute of limitations. others specified crimes. with the exception of a pure legal defense (solicitation for a conduct believed to be a crime but is not).

The MPC provision provides ³It 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. lying still in preparation. D. o Merger  Solicitation is in preparation of attempt.  The MPC bars convictions for more than one inchoate crime for conduct designed to commit the same crime and bars the conviction of both an inchoate crime and the object crime. once there is a communication. and the object offense. Entrapment possible defense when law enforcement involved. conspiracy. the solicitation has occurred.  In most jurisdictions this means that the crime of solicitation is held to merge into the three other crimes if the evidence establishes the commission of the greater offense.e.   Courts divide over the issue whether the intended recipient of the communication. so there is no renunciation available. statutory rape. must actually receive the communication in order for the offense to take place. The MPC §5. Some jurisdictions believe it is not solicitation until the solicitation is actually received by the appropriate party.02(2) and many other jurisdictions permit a prosecution for unreceived solicitations so long as the defendant tries to communicate with the recipient.´ ± unilateral o Most courts hold that the act of solicitation alone is insufficient to establish an attempt to commit the object offense because it does not cross the perpetration line. Conspiracy o An inchoate crime committed as part of a scheme to do what is often called the object or target crime . o Defenses  Renunciation and entrapment MPC and others allow for a renunciation of solicitation if all three requirements met In some jurisdictions. however there are exceptions.  y Solicitor cannot be convicted of crime solicited A victim cannot be convicted. or an intermediary. i.

o Danger of group criminality o Conspiracy requires an agreement between two or more people to commit a felony (in some jurisdictions) or any crime (in others). although it is not a contract in the legal sense. o Usually proven on circumstantial evidence showing common criminal purpose o Can be part of a continuing criminal operation or a single act o Frequently an accomplice to a crime is also a conspirator.  . ³Crime´ conspiracy to do a crime some states require it to be a felony while others include misdemeanors Mens rea A to agree B to provide    Overt act Use this term only for conspiracy Some jurisdictions. not all. o Elements  Plurality Conspiracy requires in general two people They do not need to convict both the conspirators MPC y y y y Uses unilateral approach The undercover agent issue Undercover cop comes up to a drug dealer and who enters into a conspiracy with the agent Under a bilateral jurisdiction this would not be conspiracy because the plurality rule is not satisfied The MPC says that person is just as guilty y Unilateral approach y Just as willing to enter into the conspiracy Agreement Not meaning a contract The word understanding my be more appropriate. require the overt act.

 Aiding and abetting alone is usually not enough to make a conspirator. but could be in a separate conspiracy for the criminal activity they did accomplish.  Commonly conspiracy will be used as a plea bargaining chip. the more likely all the accused will be charged with the crime  . o Procedural Advantages to Conspiracy  Joinder How many people can be joined in a trial y  Venue Where the trial will be held y The government has some limits y Where any act by any conspirator occurs Statute of limitations Begins at the end of the conspiracy. in drug situations that continue for years Evidence Hearsay rule y y Limits government proof in a criminal case It broadens the co-conspirators proof that the government can present o Gives the government an exception to the hearsay rule. o Co-conspirators are usually put on stand. o No Merger of Conspiracy and Object Crime  The majority rule is that conspiracy is a separate offence from any substantive crime committed in the course of a conspiracy  Can be convicted of both conspiracy and the object crime because actus reus of agreement separate from object crime.e. if they are unaware of the greater crime. Puts pressure on the defendant to plea to the other crime to avoid conspiracy charge. y  i. o The court can consider the co-conspirators¶s statement in deciding whether a conspiracy exists that would allow admission of the Usually the more people involved in a trial. not when the conspiracy begins.

so not a conspirator. Nature of the goods or services United States v.statement ± bootstrapping ± but then the statements alone cannot be the only evidence. or even tacit approval. Price of the goods usual.  Factors (Supplies + ) 1. or criminal plan is not sufficient by itself to prove an intent to enter into an agreement.  o Overt Act . inflated? 3. Ongoing relationship between the seller and purchaser 4. Lauria Did not have enough of a stake in the operation or intent to further the enterprise. Deliberate Indifference y Proof of knowledge can be established if proven the defendant consciously avoided learning the criminal object of an agreement. Quantity of sales 2. Falcone Led may courts to state that knowledge. Stake in criminal venture 5.  Knowledge Knowledge of the unlawful act that is a product of the agreement. o Ostrich or Deliberate Ignorance situation o Merchants and Suppliers  United States v. Impetus 6. o Mens Rea  Intent to Agree Specific intent to agree to combine for a common criminal objective Proof of the agreement is used to show the mens rea here. A defendant must know that he or she is entering into a conspiratorial agreement and know that the agreement incorporated a criminal object. but not necessarily all the attendant circumstances or details.

than it can still be a conspiracy  Protected Class of Victims Victims who were meant to be protected by a statute cannot be co-conspirators in the violation of that statue. o Types of Conspiracies  Helps establish how many conspiracies and the structure of the conspiracy  Wheel All conspirators work together  Spoke Hub figure with spokes associates Cohen¶s drug ring example All in one large conspiracy together and they do not work with the others  Wheel and spoke Hub figure with spokes associates Cohen¶s drug ring example All in one large conspiracy together and they work with the others Chain A B y C D Could all be in conspiracy with each other or only person with whom they dealt   o Conspiracy Limitations  Wharton¶s Rule In those relatively few instance when a crime by its very nature requires the agreement of two people to engage in the conduct constituting the offense. sufficient to satisfy actus reus. o Need at least two people to make a conspiracy.Majority of conspiracy statutes require the govt to prove an overt act in furtherance of the conspiracy. courts have precluded the use of conspiracy as a separate charge based on the same agreement If it is more than the minimum number. o Withdrawal . however both do not need to be convicted (many times one makes a deal or courts feel sympathy for one).

 Not a defense since the conspiracy is created once the agreement occurs.696  Conspiracy light  Not as much as conspiracy. impossibility is not a defense to conspiracy if the defendants entered into an agreement with one another. in part because of your aid  Easier to prove than that ³plus´ in conspiracy  Creates a duty not to supply materials to someone who you know will use the supplies for a crime  Many times the supplier will choose ignorance Has enough information. regardless of whether the object crime is committed. renunciation is a defense when the defendant has made an overt act to demonstrate their renunciation of the conspiracy & stop target offense from occurring.  Jury found Walter guilty on nine of the substantive counts and on the conspiracy count. o Impossibility  Even if the final crime could not have been completed. o Abandonment and Renunciation  Under the MPC and many modern jurisdictions. They were indicted for violations of the IRS Code. Could be enough for criminal facilitation .  The indictment contained ten substantive counts and one conspiracy count. and the felony occurs. Pinkerton o Facts:  Walter and Daniel (Ds) are brothers. Parties to Crime y A.  Believe its probable that you are providing goods or services to someone who will use it for a crime. and chooses to ignore that information y XI. o Criminal Facilitation p.  Jury found Daniel guilty on six of the substantive counts and on the conspiracy count. but a similar idea.  However there can be no conspiracy is the conspirators intended to commit an act that was not a crime.

o Issues:  When there is no evidence that one conspirator participated directly in the commission of the substantive offenses on which the conspiracy was founded. o The Pinkerton rule has broad implications for all conspirators because it extends liability for substantive crimes committed by any conspirator. Other conspirator  2. o Limitation . During  3.o Procedural History:  Trial count found Ds guilty as stated above.  An overt act of one partner may be the act of all without any new agreement specifically direct to that act. and there is no evidence that Daniel took any affirmative action necessary to establish that he withdrew from the conspiracy. Or was merely a part of the ramifications of the plan which could not be reasonably foreseen as a necessary or natural consequence of the unlawful agreement. Reasonably foreseeable. o Reasoning:  This is a continuous conspiracy. can the conspirator still be convicted for committing the substantive offenses? o Holding/Rule:  Even if there is no evidence that one conspirator participated directly in the commission of the substantive offenses on which the conspiracy was founded.  1. with or without the participation or even knowledge of the other conspirators.  SCOTUS affirmed. Furtherance  4. Did not fall within the scope of the unlawful project.  Criminal liability probably would not extend to a conspirator if the act done by one of the conspirators« Was not done in furtherance of the conspiracy. if reasonably foreseeable and committed during and in furtherance of the conspiracy. the conspirator can still be convicted for committing the substantive offenses. Ds guilty.

only the acts that occurred during the time you were part of the conspiracy Renunciation would be a defense against previous acts. provided they have the appropriate mens rea and commit on of the required criminal acts. You are not guilty of future acts. 10 people go into the bank to rob it 2 degree principal theoretically nd .  Withdrawal is not a defense From the moment you withdraw. o Collective Criminal Agreement  Pinkerton applies in cases in which the defendant did not have the level of intent required by the substantive offense with which he or she was charged i. means that a person can become derivatively liable for the crime of another. o Do not need to charge conspiracy for the Pinkerton rule to apply.e. o Renunciation is statutory  You must do what the statute says  The object crime must not happen  An incentive to make you not follow through and to make sure the object crime does not happen. but then co-conspirator killed the victim still charged with the murder even without the mens rea for murder. Cannot be held liable when one of the criminal acts done by a coconspirator was not done in furtherance of the agreed object crime.  The doctrine of accomplice liability. you are no longer part of the conspiracy The risk of Pinkerton liability of future acts is over. Traditional: Principals and Accessories o Accomplice Liability is derivative rather than merely vicarious  The accomplice must take part in the head crime to be criminally liable. o Traditional Levels of Participation  1st degree principal shooter could be more than one  y i. y B.e. intended only to beat someone. or complicity.

either alone or coupled with refusal to interfere. or others who have a duty to intervene.  Mens Rea Intent to assist another in the commission of the offense Specific intent Knowledge alone of the criminal purpose of another is not sufficient to establish intent to assist in the crime. o Natural and probable consequence  Accomplice liable for any intended criminal activity and also any offense that could be a natural and probable consequence. including words alone. ³obstruction of justice´ requires that you know what you are doing. but the getaway driver  accessory before the fact someone who gets the ball rolling a solicitor the mastermind. o Most jurisdictions treat accomplices and principals identically. y A person who is merely present. The mens rea required for the a violation of the object offense. encourages/starts the ball rolling. y Police officers.aider and abettor not the person in bank. but for helping the offender avoid apprehension or conviction. y y y Specific intent if offense has specific intent. is insufficient to support a conviction unless the person has a duty to intervene. but mere present at the crime scene. . Today you can indict for one and charge for another o Elements  Actus Reus The accomplice provides assistant to the principal for the commission of the crime A wide array of conducts can constitute an actus reus. essentially same today   accessory after the fact often entering after the crime punishment not for the crime. but as a lookout The perpetrator need not know about his accomplice.

they cannot be held liable because they lack the required mens rea i. o The problem with principles and accessories is that these artificial distinctions were difficult to apply and only tangentially related to blameworthiness. y C. so one cannot be guilty of aiding and abetting an offense. Pinkerton: was it in the course of. Instead.  Responsible for what you do and what is foreseeable from what you do. o Conspiracy distinction  Does require participation like conspiracy.e. Both present in many jurisdictions  Not mutually exclusive  Separate avenues for evaluating liability  Accomplice liability everywhere. however does not require an agreement. o The natural and probably consequences of what you do. o The liability of an accomplice under modern law is frequently described as o aiding and abetting a crime. Pinkerton is not everywhere An accomplice is responsible for the acts of another plus the natural and probable consequences of those acts. furtherance of and foreseeable o o o o Abandonment  Liability can be avoided if accomplice completely abandons and the offense is not committed.o Some jurisdictions say that accomplice liability is too narrow and needs to be extended more towards Pinkerton. o Innocent Instrumentality  When a person is used as an accomplice and they are unaware of it. The most important point to understand about accomplice liability is that it is not a separate crime. Modal Penal Code: Modern View o MPC Conspiracy  Actus Reus . a mailman who delivers a bomb o Exempt Participants  A person who is a victim under a statute cannot be held as an accomplice in the violation of that statute. against legislative intent. it is a theory of liability in which the prosecution proves a person committed a crime by assisting another in the acts that make up the offense.

Unilateral approach to the criminal agreement Primary purpose is to facilitate police activity Renunciation and Pinkerton The MPC recognizes an affirmative defense of renunciation. that the person agree with ³the purpose of promoting or facilitating´ the object offense. under circumstances manifesting a complete and voluntary renunciation of his criminal purpose.     .e.  Makes exception for innocent agent  Combines the first three principals  Attempts not necessarily does something but try to do something That is enough Consistent with MPC focus on moral blameworthiness  the victim is not an accomplice i. as long as they were aware they existed and were involved in the conspiracy. o MPC Accomplice liability  I am responsible for what I do and for what you do under specific listed circumstances. the MPC rejects the Pinkerton doctrine of holding a conspirator liable for all crimes committed by other conspirators in furtherance of the agreement. A defendant can be held to conspire with other parties of a larger conspiracy even if they had no contact with them. that a defendant who has entered into a conspiracy can be acquires if the person ³thwarted the success of the conspiracy.´ TheMPC also rejects the Pinkerton doctrine of substantive liability for the crimes of con-conspirators. MPC rejects Pinkerton Rule Based on the mens rea requirement.Requires an overt act and an agreement  Mens Rea MPC¶s highest mens rea level is required. again for the reason that a person should be liable for his or her own acts undertaken with the requisite criminal intent and not those of another person. statutory rape.

 Most modern penal codes include accessory after the fact. Accessory After the Fact.e. a post-crime liability Actus Reus Harboring. Misprision. XII. Render assistance to the for the purpose of assisting the offender avoid apprehension. Etc. but some object crimes for which nonreporting is made a crime i. not reporting child abuse o Compounding (MPC includes this)  Separate offense that consists of accepting pecuniary benefits in exchange for not reporting crime information.  Not usually applied to minor crimes. call the cops still guilty for acts already done.  o Misprision of Felony  Not reporting a known felony  Not a general crime. Defenses . o Accessory after the fact is one variety of obstruction of justice  Do not participate in the felony.  Usually a lesser sentence than the felon. but the may refer to it by a different name   MPC uses the term hindering.  MPC¶s Reasonable Compensation Exception Recognize that the crime should not be extended to cover legitimate demands for restitution in exchange for a promise not to pursue criminal charges. 6(c) withdrawal type defense terminate complicity no longer a part of the group nullify your contributions to it i. take back your gun you gave. Exceptions Relatives: would be ineffective and routinely ignored. aiding. but not for future acts. punishment. but help the felon to escape arrest. concealing Mens Rea 1. or trial.e. y D. Knowledge of the crime 2.

e. making prima facie case for any defense (some evidence) Under the burden-shifting model. In General o Each defense represents a policy decision that the criminal law should not hold a person liable for one or more crimes in certain circumstances. Penal Law §25. o Prosecution burden of proving each element Defense burden of production.Y. imperfect self defense with would lessen a charge from murder to voluntary manslaughter .i. True Defenses Failure of Proof MPC uses same stucture Defenses Affirmative defenses o Affirmative defenses  Defendant has both the burden of production and burden of persuasion o Defenses  Burden shifting situation. o Negates the prosecutions case by negating particular elements of the crime.e.00 o Failure of proof  Prosecution did not meet their burden o Impact of Defenses  Complete Defense Defense to all criminal liability arising from a course of conduct. N. i. o Can present multiple defenses at once. insanity  Partial Defense Lead to an acquittal on one or more crimes but have no impact on others. o Standard of proof changes between defenses from preponderance of evidence to beyond a reasonable doubt.y A. the prosecution then has the burden of persuasion of disproving the defense.

e. necessity. infancy  MPC does not view the distinction as useful. Negate Element of Crime Disprove a particular element of the crime. intoxication. however some jurisdictions find justification less morally blameworthy than excuse. you can¶t use deadly force to protect property o law enforcement favored  defense permits law enforcement to perform their jobs even using force and citizens using force for law enforcement purposes o free will  an actor does a crime but not through their free will  ex.e. duress. o Intrinsic Defense  Statute of limitations for example o sources  originally all defenses were common law  today. perhaps both parties are at fault but law gives a break to the party who is less at fault o human life over property  when the law has a choice between taking human life or losing property. self-defense  Excuse Defense that admits committed the elements of the offense and did the wrong but also asserts he is not criminally responsible for these actions. i. insanity. i. i. Alibi o failure of proof defense not a true defense . infancy y B. they are statutory  modern statutes list the defenses in their jurisdiction o doctrine of relevant innocence  depending on the factual context. impaired decision making ability ± inanity. it chooses life  in most situations.e. o Justifications and Excuses  Justification The defense admits she committed the elements of the offense but denies doing anything morally wrong. usually mens rea.

Self Defense o most commonly used defense o concept of reasonableness o elements  reasonable amount of force  reasonable force needed  honest and reasonable belief  harm must be imminent  use against unlawful force o deadly vs. you probably can¶t retreat safely and then retreat would not even be required D.o designed to present evidence that will render jury not able to guilty beyond a reasonable doubt o jury doesn¶t need to find that defendant was in a different specific place. Defense of Third Persons o Society wants people to help out other people who are in danger of bodily harm o The third person has the right to self-defense o We have the situation of three people  Attacker Moral blameworthy  Rescuer y . some commentators said that a study showed that there has never been a case where someone has been prosecuted for not retreating when they could have safely o This makes sense because any time you could use deadly force. they just have to have reasonable doubt about the defendant being at the crime scene o mentioned for procedural issues y C. non-deadly force o should be used as a last resort o retreat rule  retreat when it is safe to do o castle rule o New York provision (standard) specifically includes a retreat rule ± must retreat before using deadly force unless you¶re in your own home o Designed to control conduct o With regards to Florida rule (no retreat required).

and one was shot  He was charges with assault with a deadly weapon  His defense was protection of property He further claimed that if he were home. non-deadly force o Exception  Deadly force is often permitted to protect your home  Almost never need to retreat from your home before you are allowed to use the retreat rule.If you rescue somebody. o Sabaros case  Set up a spring gun in his garage  Two boys entered through his garage.  Rather than you take a life. Defense of Property o Life over property  In most situations you cannot take human life to protect property. you are not morally blameworthy. but no more If the rescuer misperceives the situation. he could have used equal force to protect his home  The court held that they were not going to allow for trap guns because they were against public policy o You can have more than one defense at a time . you lose the property then call the authorities to deal with it o Reasonable. Look at the world through the eyes of the rescued  Reasonable belief Almost universal We will hold the rescuer to an objective test of reasonableness Look at the world through the eyes of the rescuer o Honest Belief (MPC) y E. he or she has no defense. even though the rescuer is committing a violent act  Rescued Person Has self-defense available to him or her o Three categories of rules for defense of third party  Stand in shoes The rescuer may do what the person rescued could do.

 It chooses life over escape Then the police officer must choose between a life and allow the fleeing felon to run away  Young man suspected of burglary  The police came to a burglary report  The found the defendant nearby and they chased the defendant  The police officer shot the defendant while he was trying to climb over a fence  This is a civil case  Family sued claiming this was a violation of the victims constitutional rights  The 4th Amendment . Preventing Escape) o officers are allowed to use an escalating amount of force. o New York v. Law Enforcement (Arrests. but deadly force only in the situation of serious bodily harm possible to occur. o Tennessee v. but with some limits regarding deadly force. the death penalty would not even be an option for most of these cases.30 o Crime prevention defense  As a citizen you are allowed to use force to stop a crime from happening  May be applied to misdemeanors and felonies  Can use non-deadly and deadly force. Tanella  The court found that the circumstances here made it reasonable to use deadly force.  NYPL 35.  The key with law enforcement¶s use of force is reasonableness given the circumstances.    y Someone comes into your home and your family is home Defense of property Self-defense Defense of third party F. Gardener  Places huge limits on the governments use of deadly force.  The reasoning for this is that it is equivalent to the death penalty when if the person was arrested and tried.

05  If an officer or public official is doing his job. Public Duty o Law enforcement or other public officials have the need to go onto other¶s property  i. if a police officer is strangling you.e. y H. Resisting Unlawful Arrest (Dumb Idea) o When someone is resisting an arrest. but it has been adopted by statutes If a police officer kills and escaping felon. o NYPL §35. then there is no crime  It is therefore a defense to trespass for example. o You may not resist whether the arrest is lawful or unlawful. the officer only has a defense if they pass the Gardener Test What would a reasonable officer do under the circumstances? It is reasonable only if the victim posed a threat of serious death or bodily injury to the officer or other people y G.e. a parent that uses some discipline to care for their child  a person has a violent seizure and is held. and the citizen gets hurt by the law enforcement o Takes away the authority of a person to resist arrest o It is a dumb idea o A person may not resist arrest from someone who is a known police officer. o Usually had an exception if the force is excessive  i.  Bars unreasonable searches and seizures They held that killing is a seizure Gardener Test This is a civil test. health officer who makes unannounced visits to a restaurant. cause him injury  a jail officer to keep jailers in order . Discipline Based on Relationship o Discipline based on special relationships o A person may need to use force to carry out their responsibilities  i.e.10 o There are almost no public duty cases because most prosecutors will not even bother pursuing a case where a person was a public duty y I. o MPC §2.27 o Resisting arrest is usually force as opposed to running away. they are using unlawful force o NYPL §35.

o NYPL §35. you are in a winter storm and go into someone¶s cabin the choice is a trespass or your life. The choice from nature The winter storm example.  i. You cannot use the defense when reckless and/or negligence The model penal code here is subjective y If the choice is a loss between 4 lives and 1 life. to give the jury to decide if this is the type of situation we want to punish as a representative of the community.10 o This is a value judgment that gives parents. a reasonable force may be used where society recognizes that a reasonable force would be authorized. The law finds you are not morally blameworthy because of the choice you are presented with. etc to use reasonable force to maintain order y Choice of Evils o J. teachers. not in jury instructions  Power of the jury to do justice in a case Acquit or lower charge where it is just to do it. Duress  The choice is between another human being Forced by another human being  As a social policy in an extreme situation.  MPC § 3.  Defense says do justice and prosecution says follow the law .  Off the books justice.  Someone of reasonable firmness would not be able to resist. not in statutes. y  o K.e.  The statutes don¶t usually segregate between nature and human. Necessity  The rock and the hard place situation. the 1 person should go under the MPC.02 Justification Generally: Choice of Evils Balance here of the gravity of the harm. o Jury Nullification  Not a defense.  Necessity and duress and specific defenses  Choice of harm immediately or commit a crime.

e.The tension on this issue arises from this.000 to do it with a way of not getting caught  The point is that there is a price to get someone to do something illegal and the government has the resources to pay that price. but the use of sting operations. i. o The government can use its extensive resources to push people in committing illegal activity. because I am not a thief. not to encourage it or to turn innocent. y L. which is not good. not because I am scared I will get caught. previous crimes Are you the kind of person that was predisposed to committing this type of activity  Objective MPC and NY § 40. Entrapment o A lawful government that respects its citizens entrapment tries to protect this concept o Limited government  What is the goal of government To protect against crime. o At some point we have to stop the government o Entrapment is a defense to a crime o In the United States there are two views of entrapment  Subjective Majority view Looks at the defendant¶s actions and activity What the defendant has done.  Now Cohen offers $100 to do it and you have a way of doing it without getting caught Still say no  Now Cohen offers $1000 to do it with a way of not getting caught  Now Cohen offers $10. law-abiding citizens into criminals o What if Cohen (as a government agent) asked a student to go to the library and steal a book  Thought should be no.000 to do it with a way of not getting caught  Now Cohen offers $100.05 (minority) . etc are useful in capturing criminals o The important idea is where is the line drawn between entrapment and reasonable activity to capture a criminal.

the defendant must admit guilt Cannot say I did not do it. When the government conduct is egregious So bad that it is likely to induce an innocent person into committing a crime Could push someone from being a law-abiding citizen into a criminal i. the defendant almost always has to testify To at least describe the government¶s activity  In subjective approach. provided him with a ingredient for making meth that is difficult to obtain  Defendant claimed that the ingredient was an indispensible ingredient without which he could not produce meth.000 offer for the book o United States v. the $100. the prosecution can bring up the defendants previous acts. a government agent.Just by looking at the government activity. Mental Status o 1. o Entrapment defense is rarely used  If the defendant asserts the entrapment defense. y M. o MPC  The focus here is changing someone¶s mind  Changing someone from innocent mind to a criminal mind. Insanity  Moral blameworthiness is tied into your mental status  Criminal insanity defense in criminal case  Four viable insanity tests in America the underpinning of all four tests is moral blameworthiness and the idea that insane people should not be punished since they are not as morally blameworthy .e. Russell  At some point the government¶s activity could be so outrageous that it violates due process  Brings entrapment to a constitutional matter  Leading case in entrapment  Defendant was making meth and Shapiro. looking at predisposition. but if I did the government committed entrapment  When entrapment is raised.

MPC Approach: ³Substantial Capacity´ Test §4. Substantial capacity not 100% but lacks some. There is no number attached to it. M¶Naghten (1843 England) y y y Right-wrong test The defendant did not know the nature and quality of the act or did not know it was wrong Did he know it was his mother¶s neck he was squeezing or did he think it was an orange? OR Did his mental disease and defect mean that he did not know what he was doing was morally wrong. however NYPL uses the term ³substantial capacity´ Taken at the time of the criminal conduct o Measures the defendant¶s mental status at the time of the crime. not criminally wrong? Added to the M¶Naghten test They know it is morally wrong. but they cannot stop themselves If they cannot control themselves. Durham y y Looks at causation y Usually supported by the testimony of an expert.1. (M¶Naghten) o Or to conform to the conduct required by law (Irresistible impulse) y . Irresistible impulse or Control Test y y y 3. Defendant is insane if his actions are the product of a mental disease or defect y 2.01 y y y now adopted by the federal circuits and many modern states Not adopted by NYS. o To appreciate the criminality or wrongfulness of the conduct. y No one really uses Durham 4. and thus in a way involuntary. the defendant is not morally blameworthy.

i. It is a repackaging of M¶Naghten and Impulse test o 2. then the defendant is not competent to stand trial. does the defendant understand what they are being charged with. if you cannot meet a certain test. etc.e. the defendant is then routinely evaluated Some limits y y It cannot go forever o i.e. y Deals with mental state at the time of the trial At some point your competence may be so shaky that you cannot participate in a fair trial. the proceedings. serious retardation the defendant cannot regain competency therefore cannot be held in mental hospital indefinitely since they will then never leave Execution o Cannot be executed unless mentally competent y  GBMI Guilty but mentally ill Jury usually has the options of not guilty or guilty Many times the jury also has not guilty by reason of insanity. In general terms. If the defendant cannot. Competence related to the concept of a fair trial. which is guilty . Incompetence  Trial. Under due process. you cannot be tried That defendant may be sent to a mental facility until competent and then tried Competency test y y Understand the proceedings and participate in your defense. and can the defendant help in the defense. Has nothing to do with moral blameworthiness When competence is raised.

and once they are deemed mentally healthy. they are transferred to prison. The defendant could be kept in the mental hospital for the entirety of the sentence. .  Usually cannot use for reckless or negligence The reason being that it can be the reason for recklessness or negligence. but to be held longer would have to be kept under civil commitment.y y Under NGRI the defendant goes to a mental hospital. Controversial because a person could be held indefinitely for a crime they have not committed o 3. Sexual Predator Laws that allow after someone who has been convicted of multiple sexual criminal offenses to be kept in a mental facility after imprisonment until the criminal is unlikely to commit a sexual offense again. then the defendant is set lose or their status is re-evaluated and may be recommitted under civil commitment Additional verdict that the jury can give y y y The person is guilty. Intoxication  Did not have the appropriate mens rea  Does not only make reference to alcohol.  You cannot use intoxication as a defense to awareness of a matter of law  Voluntary Intoxication Take something when aware it is an intoxicant. they are guilty but need help  Therefore they go to a mental hospital for a portion of their sentence. where they are kept under civil commitment Civil commitment allows police to take an individual who may be dangerous to himself or others to a mental institution Usually kept for up to a couple of months. but mentally ill. includes reference to drugs as well. Can negate the mens rea of a crime.

y  Montana v. Egelhoff Cannot present evidence that the defendant was drunk and unaware. Most states have not adopted it.e. but could kill intentionally.  Capacity Lacked capacity to form that mens rea . too drunk to premeditate killing someone y not applicable to recklessness or negligence Involuntary Intoxication Tricked or forced into taking an intoxicant Slipped a drug. could not premeditate the killing.25 Politicians are against an intoxication defense Not a defense but it can help the accused by supporting a lack of mens rea. Said that evidence is inadmissible. it can create a defense with the same result as the insanity defense. Montana statute is redefining the elements of the crimes essentially NYPL §15. Very narrow. adverse reaction to prescribed medicines Can negate the mens rea of a crime y y y y y Insanity-like Close cousin of insanity In addition to negating the mens rea. y i. The procedures that are started when an insanity defense is started.e.  o 4. lowers the grade/standard. are not started in involuntary intoxication cases There are not many involuntary intoxication cases since it is not usually pursued. Diminished Responsibility  Did not have the appropriate mens rea  Partial defense.  Our brains are constructed in such a way what a mental disease or defect can keep us from doing one little thing but not others i.

ignorance would be a defense  Reliance This is a situation where you are mistaken about the law and rely on your mistake information General rule is that it is not a defense. o Ignorance  Wrong about the law of something This is not a defense. California Another category where ignorance applies.  y MPC §2. y Didn¶t deliberate N. Due process barred conviction. y y Limited use of this case has happened since.20 Can be a defense when the defendant has taken adequate steps to validate the age of the victim.  Mistake is irrelevant for strict liability crimes i. Where the law is not accessible o The law was passed but not published She claimed she did not know she was supposed to register when she entered a new city as a sex offender.04(b) Lambert v. therefore does not negate the evidence  If there is a crime that requires the defendant to have knowledge it is a crime. . The law does not require knowledge of the law. where you pick up the wrong umbrella thinking it is yours.e.  Umbrella situation. except in certain situations where it would be unfair not to because of the source of the information. speeding  Perez v. State Case of statutory rape Most jurisdictions have a strict liability rule regarding age y NYS one of these jurisdictions §15. Mistake and Ignorance o Mistake  Did not have the mens rea for the crime.

Penal Law §30.00 o Children of a certain age could not form a mens rea.y O.Y. o 1899. the first juvenile court was created  rule of 7s usually does not as applicable in juvenile courts because they are made to address just juvenile situations o NY Penal Law  Under 16. if the crime is serious. . o The rule of 7s  0-6 cannot form mens rea  7-13 rebuttable presumption of incapacity a 13 year old child would need a lot more evidence of incapacity than a 7 year old  14 and older has the capacity. Age (Youth) o N. there can be responsibility. no responsibility  From 13-15 though.

11/3/2010 1:10:00 PM .

11/3/2010 1:10:00 PM .