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Dressler Criminal Law Exam Methodology: 1. Was there an act or omission? 2. Was there a social harm? 3.

Was there mens rea? 4. Was there an actual cause? 5. Was there a proximate cause? 6. Was there a justification defense? 7. Was there an excuse defense? Exam Flow: Solicitation to Conspiracy to Parties to a Crime to the Actual Crime. Remember to always talk about all the elements of the crime. But only talk about applicable defenses. Whenever there is a criminal homicide always discuss murder and manslaughter. Try to think of crimes in pairs. Sources of Criminal Law Today legislatures, not courts, enact statutes for criminal conduct. All judges do now is interpret the statutes. But it is still important to know the CL b/c the statutes derive from the CL. Keeler v. Superior Ct: He confronted her on the hwy. and struck her on the abdomen to kill her fetus. He was charged under the CA statute: the killing of a human being. He argued that he did not kill a human being, only a fetus. Was the fetus a human being? The statute was derived from the CL, the statute did not define human being. The statute had been taken verbatim from the CL. The CL defined a human being as a fetus that is born alive, therefore the fetus was not yet a human being when it was killed. Another source of criminal law is the MPC. Drafted by the ALI. Twelve years of work. Drafted in the 1950s, adopted by the ALI in 1962. Some states have enacted all or portions of it. Some states that have not adopted it, have courts that cite the MPC nevertheless. Criminal v. Civil Law The criminal conviction means that the guilty person is a moral wrongdoer one who is condemned by the community. A criminal trial is a morality play. Theories of Punishment

The criminal law intentionally inflicts pain on people. It punishes, stigmatizes, condemns. Therefore we have to ask if it is justifiable to punish a particular person. When is punishment appropriate? Retribution: Retributivism is backward-looking. People should get what they deserve. When you commit harm you deserve to be punished. Humans possess free will. Therefore when they choose to do wrong it is appropriate to punish them. They have taken something from society and they need to repay their debt. The punishment should be proportional to their act and moral blameworthiness. People who do not break the rules do so under the understanding that others will share our burden and therefore we all benefit. The criminal shares in our benefit but not our burden. By paying his debt to society he is brought back into moral equilibrium. Utilitarianism: Looks forward -- only punishes people if it will do future good. All forms of pain are bad. Punishment is not good. But crime is also not good. Society should only punish Jones if imposition of that punishment will reduce future crime. Utilitarians look upon people as being rational. They deter crime with fear of punishment. General Deterence: Jones punishment is an object lesson to the rest of society. Specific Deterence: Jones is deterred from future crime by: Incapacitation: He is in jail. Intimidation: Jones will remember the pain he has suffered and therefore not commit crimes in the future. Rehabilitation: Find out why people commit crime and change the person. A utilitarian would punish an innocent person to prevent a future greater harm. A retributivist never would. Rules of criminal punishment should follow one or both rules. Principle of Legality We only punish people b/c they have committed a crime. We do not punish people b/c they are bad or immoral. No crime w/o law. No punishment w/o law. The crime must be on the books in advance. Criminal statutes should not be vague. It must be sufficiently clear that a reasonable person can figure out what the prohibited conduct is. Burdens of Proof Must prove every material element of a crime beyond a reasonable doubt. In Re Winship: The due process clause requires that the prosecution prove beyond a reasonable doubt every fact necessary to constitute the commission of the crime.

General Elements of a Crime Actus Reus: The external part of the crime. The breaking and entering. The killing of another human being . . . Mens Rea: What was the defendants state of mind when he committed the actus reus. Actus Reus: I. Voluntary Act or Omission We punish for acts, not thoughts. Defendant must have committed a voluntary act. A voluntary act is a willed muscular contraction. Involuntary: eg. epileptic seizure, sleep-walking. The mind, not the brain, is the key. If you cross the street in response to having your life threatened, that is still a voluntary act. The crime must INCLUDE a voluntary act, it is not necessary that every act be voluntary. eg. An epileptic drives his car and causes a death as a result of a seizure. He was found guilty b/c getting in the car and driving was a voluntary act. People are not ordinarily responsible for their omissions. eg. You refuse to save a drowning child. You are only punished for making things worse. You are not punished for NOT making things better. Exceptions to Omission Theory: 1. Statutory: Failure not to file taxes. Failure to provide food and shelter to your children. 2. Duty to Act: Parent has duty to protect his children. eg. Save child from drowning. Husband and Wife Employer and Employee 3. Contractual Duty to Aid: Express or Implied. Oral or Written. eg. Baby sitter. 4. The actor creates a risk of harm and then fails to diminish the risk. eg. You hit a child accidentally with your car, and then drive off instead of stopping to help the child. 5. The defendant begins to act when there is no duty to act, but then stops acting. eg. Someone is drowning. You begin to swim out to help them, but then stop and turn around. Your act led others reasonably not to act. You made matters worse for the drowning person. If no one else had been on the beach, you would not be liable.

II. We punish people when voluntary acts or omissions result in social harm. The threat of crime impairs everyones liberty. The social harm of a crime are the external elements of the crime. eg. The social harm of a burglary is the breaking and entering of a dwelling at night. **** Voluntary Act (or omission) + Social Harm = Actus Reus. ****

Mens Rea: Guilty mind. The mental state of the actor when committing the actus reus. There is significant ambiguity: 1. Culpable: A morally blameworthy state of mind. Non-specific. This is the culpability meaning of mens rea. 2. Elemental: A specific morally blameworthy state of mind. eg. burglary The INTENT to commit a felony therein. The intent is the mens rea. This is the elemental meaning of mens rea. MPC: Mens Rea Terms: Purposely, knowingly, recklessly, negligently. Purposely: Consciously intended the result. Knowingly: Was aware that the result in question is nearly certain to occur. Under common law purposely or knowingly meant intentionally. Recklessly: Consciously takes a substantial and unjustifiable risk of causing a particular harm. Unjustifiable: A reasonable person would not have taken the risk. The CL and MPC definitions of recklessly are the same. Negligently: Not the same as tort law negligence. This is criminal negligence. Criminal negligence is like recklessness is b/c both involve substantial and unjustifiable risk. But the negligent person was not aware of the substantial and unjustifiable risk, even though he should have been aware. Specific Intent v. General Intent v. Strict Liability Specific Intent: A crime which requires a mens rea beyond just causing the social harm. Intent: eg. burglary: after breaking and entering there must be an intent to commit a felony inside. Motive: eg. larceny: to take from someone else and permanently deprive the person of their property. Knowledge: eg.: Receiving stolen property with knowledge that it was stolen.

General Intent: Not specific. eg. Rape: Have sexual intercourse with a woman, not his wife, w/o her consent. Strict Liability: Public welfare crimes. Malum prohibitum: it is bad b/c we have prohibited it. The alternative in Malum in se: wrong in an of themselves. Public welfare crimes usually have small penalties. Public welfare crimes do not usually stigmatize a person. These public welfare crimes usually do not require any mens rea. The general rule is that a court will infer mens rea into all crimes. However, if it is clear that the legislature meant to do away with the mens rea requirement, the court will allow the mens rea exception. Note: When you read a statute, look for 1. Actus reus 2. Mens rea A. Specific intent B. General intent C. Strict liability Mistake of Fact: eg. speedometer broke, so he did not know he was speeding. He did not know he was speeding. eg. finds a gold watch on the ground, thought it was lost. She mistakenly believed it has been abandoned. eg. Jack has intercourse with Jill. She is Russian and repeats Nyet, nyet, nyet. He did not know he was committing rape. A mistake of fact gets the Defendant off when: CL: Correctly characterize the crime for which D has been charged. Is it general intent, specific intent, or strict liability. Strict Liability: speedometer: mistakes of fact are irrelevant. Specific Intent: gold watch: did not intend to deprive owner b/c the mistake of fact disproved the specific intent element of the crime. General Intent: rape: Did he commit the actus reus with a morally culpable state of mind? A person will be acquitted of a crime if his mistake of fact was reasonable. He will be found guilty if his mistake of fact was unreasonable. Exception: Regina v. Prince: taking the girl away from her father was a morally culpable act, so even though he though she was over 16, he was guilty. If you commit a morally wrongful act you assume the risk that you made a mistake of fact and therefore committed a wrong. This moral wrong doctrine is exception to the legality principle. It general intent crimes.

have criminal unusual, and is an is only used w/

MPC: Mistakes of Fact: No distinction between specific and general intent. Did the D have the mens rea found in the definition of the crime? Every MPC crime has a required specific intent. Mistake of Law: Ignorance of the law is no excuse. People v. Merrero: The concealed weapons statute allowed an exemption for any penal officer. He was a federal penal officer. By 3-2 the appellate court said that the statute exemption did not apply to federal penal officers, only state. Holmes: Public policy sacrifices the individual for the public good. Ignorance of the law is no excuse is a very utilitarian doctrine. To do otherwise would put a premium on ignorance. Exception: 1. If you have based your actions on an official interpretation of the law which later turns out to be erroneous. This constitutes the reasonable reliance exception. Merrero was interpreting the law on his own. 2. A statute might require a known duty. U.S. v. Cheek: a voluntary and intentional violation of a known duty to pay taxes. Cheek claimed he did not know that he had to pay income taxes on his wages. Therefore he did not violate a known duty.

To be guilty must be the actual cause and the proximate cause. I. Actual Causation: BUT FOR -- the link between the act and the social harm. Who or what caused the death of the person. Use the but for test (CL and MPC): But for the Ds voluntary act or omission, would the social harm have occurred when it did? If no, he is guilty. If yes he is not guilty. II. Proximate Causation: a policy concept. Look at all the causal candidates and decide which ones should be held responsible for the social harm. Ds Voluntary Act ------------------------ ---------------------------------------The Social Harm Was there an intervening But For cause between them? If nothing, then there is a direct causal link. If there is an intervening cause then we have to decide whether to shift responsibility to the intervening cause. There are no bright line rules: Factors to look for: 1. Intended Consequences Rule: look backwards from the death and continue until an intent to cause the harm is found.

Eg: Alice puts gun on table____________child shoots Bob_____________Bobs death by gunshot. intending to kill Bob. Alice is responsible. 2. Apparent Safety Doctrine: If you try to kill someone, but fail, and the intended victim is now in apparent safety, but then due to some circumstance gets killed or dies an unnatural death, you are not responsible. Eg: Husband beats wife. She leaves to walk to her parents house. Stops and falls asleep outside her parents house and freezes to death. He is not responsible for her death. 3. If the intervening cause is a free-willed, voluntary, human act, then the legal responsibility of the prior actor ends. Eg: Wife made a free-willed decision to wait outside parents house. 4. Distinguish between responsive intervening causes and coincidental intervening causes. Eg: Doctor works on a harmed person, but due to malpractice, kills them. The doctor is a responsive cause, therefore the original D is still responsible. D only gets off if the doctors response is totally bizarre. (eg. doctor strangles patient at the hospital). Eg: I threaten to kill someone. She runs away and gets hit by lightening. The lightening is an unforeseeable coincidental cause, so I am not responsible for her death. MPC 2.03: 1. But for test. 2. Was the actual result too remote or accidental in its occurrence to have a [just] bearing on the actors liabilityor on the gravityof the offense. ([just] is optional in the statute).

DEFENSES Justification (Seven Defenses): D did nothing wrong. A justified or tolerable act. Excuse: Does not look at the act, but the actor. The act was wrong but actor is excused, we wont blame him.

JUSTIFICATION DEFENSES: 1. Self-Defense: Begin with justification defenses. For murder the most common is self-defense. At CL killing in self-defense is justified if at the time of the killing the actor reasonably believed that such force was NECESSARY, to combat IMMINENT, UNLAWFUL, DEADLY FORCE. Must show: Necessary: Killing him must be the only reasonable way out for me. Duty to retreat: if it can be reasonably done to a completely safe place. Exception: Not required to retreat from home. Imminent: I must act now or Im toast. Does not apply if I will be in jeopardy later. Reasonable belief: does not matter if the imminent unlawful deadly force was actual, only that the belief was reasonable. The belief only needs to be reasonable, not necessarily correct. Unlawful: The threat must be unlawful. eg. Not that a cop is about to shoot at you while youre robbing a bank. The response must be proportional. You cannot kill someone you believe is about to slap you. Not be the aggressor: Who started the fight? You cannot pull a knife on someone, and then kill him in self-defense when he pulls a gun. His threat to you was lawful he was acting in self-defense. Exception: Even if I started the fight. If I quit the fight, and then he comes after me, I am then able to use self-defense justification. MPC 3.04 1: What does the actor reasonably believe? CL is all or nothing. MPC 3.09 only subjective belief, but only allows a partial defense (eg. mitigate murder down to manslaughter) if the belief is unreasonable (negligent or reckless). MPC: The force does not have to be instantly necessary. You can shoot someone who says hes going to the bedroom to get a gun to kill me. Under Common Law you cant stab him until he gets the gun. MPC: Like CL, cant use the defense if you are the aggressor. MPC: Must retreat if can be done with completer safety, but have Castle exception.

Battered Women: Reasonable belief can incorporate experience with the party at issue. A reasonable person in the womans shoes is the appropriate test. She can kill him if hes threatening her with a beer bottle, but not when he is asleep. But some jurisdictions do allow the BWS defense even if the husband was asleep. On a test you must articulate why the response was reasonable or not. Who is the reasonable person? reasonable woman? reasonable battered woman? But would we allow the perspective of a reasonable racist who kills b/c he so fears members of another race. Other justification defenses: 2. Defense of Others: CL: Can use force upon an aggressor when the person who is being aided would have a right of self-defense. The belief in most jurisdictions must be only reasonable. However, in a minority of jurisdictions the belief must be correct. eg. If would-be assailant is really a policeman making a lawful arrest, then youre in trouble. MPC 3.05: Can use for if: a. Force would be justified for himself b. Force would be justified for the 3rd party c. force is necessary for the 3rd parties protection d. But if the 3rd party would be required to retreat, then intervenor must attempt to get to the 3rd party to retreat. 3. Defense of Property: CL: A person may never use deadly force to protect personal property. But sometimes protection of property merges into a defense which does allow it. eg. You try to apprehend the guy who is stealing your car. He pulls a gun. Then you can kill him. MPC: a. subjective belief. b. authorizes the use of non-deadly force to retake property. c. Deadly force: (1) A intends to dispossess D of his dwelling other than under claim of rt. (2) A intends arson, burglary, robbery, or felonious theft in dwelling. (3) A has employed or threatened deadly force against D. (4) Use of non-deadly force would expose D to serious bodily harm. 4. Defense of Habitation: CL: You can use deadly force to protect your home from imminent, unlawful entry, and deadly force is necessary to prevent that entry. Your home is your castle. This is the minority rule today. In most jurisdictions today you must reasonably believe that the intruder will commit a forceable felony once he is inside. MPC: Does not recognize a separate interest in habitation as distinguished fro the defense of property. Modern Rule: 1. Imminent and unlawful 2. Deadly force necessary to prevent the entry 3. The person will commit a forceable felony Spring guns: CL were allowed if person would have used had he been present.

Modern Rule: No spring guns. MPC: No spring guns. 5. Law Enforcement Defense: Crime Prevention. When can deadly force be used to prevent a crime? Never for a misdemeanor. But the old common law rule was that it could be used to prevent any felony if deadly force was the only way. Today it is only allowed to prevent a forceable felony (eg. robbery). MPC: Can only use deadly force if it is necessary to prevent a crime what will cause death or serious bodily harm to another unless the crime is prevented and the use of such force presents no substantial risk of injury to innocent persons. 6. Prevent Escape: CL: Cops could use deadly force in the arrest or prevent escape of any felony. At common law all felonies were punishable by death, so this made sense. TN v. Garner: The S.C. ruled that using deadly force to prevent a felon from escaping violated the 4th Amend.s unreasonable search and seizures. Modern Rule and MPC: Can use deadly force only if: 1. Deadly force was reasonably necessary to prevent the escape and have probable cause to believe that this person poses serious threat of death or serious bodily harm if the felon gets away. 2. Prison guards and cops can use deadly force if it is reasonably believed to be prevent prison escape. 7. Necessity Defense (natural threats though some jurisdictions now allow for human threats): eg. The only way to save your life is by committing a crime, such as breaking into someone elsess home to prevent freezing to death. The lesser of two evils. Elements: 1. 2. 3. 4. The harm must be imminent. Can only prevent the harm by breaking the law. The person cannot be at fault for having created the problem. The harm caused must be lesser than the harm prevented. (the lesser of two evils) A balancing test.

CL: The necessity defense is not available for murder: Queen v. Dudley and Stevens. MPC: 3.02: Does allow murder, if it does prevent a GREATER harm, and the threat does not have to be imminent.

EXCUSE DEFENSES:

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1. Duress (human threats): CL: 1. Threatened with death or serious bodily harm by a third party. 2. D had to reasonably believe that succumbing to the threat was the only way out. 3. D must not have been at fault in getting into the situation. 4. A reasonable person would have been coerced. 5. Cannot be used as a defense to murder. MPC allows the duress defense to be allowed for ALL crimes. MPC 2.09: A threat that a person of reasonable firmness of a person in her position would have been unable to resist. This even applies to murder. Past use of force is a sufficient threat. The threat does not need to be present, imminent, or deadly. 2. Intoxication: drugs or alcohol. Voluntary: 1. Relevant only to reduce 1st. deg. murder. 2. Relevant only to capacity to form specific intent. (MPC 2.08: self-induced): this is not an excuse. However, it can be a mens rea defense. This will help with specific intent crimes, but not general intent crimes. MPC 2.08 (2): Intoxication is not a defense to recklessness, even though he was only negligent, but otherwise may be used as a def. in order to negate mens rea GA: Georgia does not recognize voluntary intoxication as a defense. Involuntary: A defense to general and specific intent crimes. 1. The person ingested the intoxicant unknowingly. 2. If forced to take the drug. 3. A prescribed medication and has an unforeseeable response. CL and MPC: If D can satisfy the states insanity definition as a result, can use the defense, even though he will be acquitted by invol. intox., not insanity. GA: Did not know right from wrong, and the involuntary intox. due to: 1. Excusable ignorance 2. Or the fault of someone else (duress, micki finn). 3. Insanity: Four states have done away w/ the insanity defense. GA re: intoxication: Sometimes, alcoholism is so severe as to have caused permanent brain damage, which may create an insanity defense.

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GA: if your client is incompetent at time of trial, file motion called special plea of insanity does not raise insanity defense, but says this person is not competent to be tried Competency: sufficient present ability to consult with a lawyer with reasonable degree of rational understanding and a rational as well as factual understanding of the proceedings We want to distinguish between the MAD and the BAD. We want to punish the BAD, we want to give medical care to the MAD. If found guilty by reason of insanity, will be committed to a civil mental institution, however insanity does not equal mental illness. Insanity is a legal concept, not medical. Jury Verdicts: in most states, the fact finder may return 1 of 4 verdicts: 1. Not guilty 2. Not guilty by reason of insanity: D was insane at the time of the crime. (requires only preponderance of the evidence same rule in GA, except that the jury will automatically get the charge for Guilty But Mentally Ill). 3. Guilty 4. Guilty but mentally retarded/ill: was sane at the time of the crime but not now. (requires guilt beyond a reasonable doubt). these are statutory, GA has - mental evaluation after verdict to determine where D goes. - very few people qualify for the legal standard of insanity - can get life sentence / death on GBMI Insanity is an affirmative defense preponderance of the evidence. Insanity: I. MNaghten Rule is the most common. Must have a disease of the mind AND 1. Did not know the nature and quality of the act OR 2. Did not know what he was doing was wrong. Legally wrong or morally wrong (did he know that society thought it was morally wrong for him to do it?) There is a split here. Some require legally wrong, some require morally wrong. Some jurisdictions have added a third prong (not conjunctive): 3. Irresistible Impulse: Volition, not cognition. II. MPC: Insanity: Lacks the substantial capacity to: 1. Appreciate the criminality (legal) or wrongfulness (moral)of her conduct. (cognition) The legislature has to choose criminality or wrongfulness for its statute. 2. Conform her conduct to the requirements of the law. (volition)

jurisdictions

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III. Durham Test: Not used anywhere anymore, except possibly in N.H. A product test. Not guilty if Ds conduct is the product of a mental illness. But for the mental illness would they have committed the crime. IV. Georgia Test: 1. Could not distinguish between right and wrong. 2. Delusional compulsion overpowered his will to resist committing the crime. V. Federal Test: Clear and convincing evidence that unable to appreciate: 1. Nature and quality of her conduct OR 2. Wrongfulness of her conduct 4. Diminished Capacity: watered down insanity defense. 1. Mens Rea version: just like voluntary intoxication. If D lacks the specific intent to commit the crime then he should be acquitted of that specific intent crime. But some jurisdictions dont allow this. A person who gets off on diminished capacity walks. MPC allows this defense. 2. Partial Responsibility version: Used to reduce murder to manslaughter. This person should be convicted, but only accorded to your culpability, hence manslaughter instead of murder. Some jurisdictions dont allow this. 5. Incapacity: 1. D is under the statutory age. 2. D is lacking in mental capacity. GA: You cannot commit a crime unless you are at least 13 years old.

HOMICIDE: CL The killing of human being by a human being. Suicide is no longer a homicide. Homicide does not necessarily imply a crime. Murder: The actus reus is the same as manslaughter therefore the difference is the mens rea. CL: An entity is not a human being until it is born alive. MPC: 210.0: A person who has been born, and is alive.

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CL: A person is considered a corpse when there was permanent cessation of heart beat and breathing. Statutory: Today brain death is included as an alternative method of determining death. CL: A death that occurs more than one year and one day after the assault is not a criminal homicide. CL: Murder was the killing by a human being of another human being with malice aforethought. At common law there were no degrees of murder. All murders were punished by death. Beginning with PA states began to divide murder into degrees. 1st, 2nd, and even 3rd. CL: Aforethought is a worthless term. You cannot be convicted of killing with murder afterthough. If you kill someone accidentally, and then wished that you had killed them, you cant be convicted of murder. Malice has nothing to do with its dictionary definition. It has to do with human endangering. 1. Express Malice: If A intended to kill B. MPC: Purposely or Knowingly. GA: Intent to kill = murder 2. Implied Malice: If intends not to kill, but only to inflict grievous bodily injury, but does in fact kill. Grievous: imperil life. OR (depends on jurisdiction). seriously interfere with the victims health or comfort. MPC: fits under the extreme recklessness umbrella GA: does not recognize this. 3. A depraved heart (an abandoned and malignant heart.) (extreme recklessness) I dont give a damn about human life. MPC: recklessness GA: implied malice 4. Felony Murder: A person is guilty of murder if a person kills another person during the commission or attempted commission of any felony. Began in England, but was abolished by statute in 1957. Remains in almost Doesnt matter if the killing was intentional, reckless, negligent, or The FM rule applies during the commission or the escape. The escape is part of the body of the crime. The reason we have the FM rule is to encourage felons, that they should not perpetrate it in a violent manner. This is a utilitarian argument. There is no evidence to support this argument. Under CL FM rule made no difference b/c all felonies were punishable by death.

every state. accidental.

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Some jurisdictions, by judicial opinion, have narrowed the FM Rule. Most common limitations: 1. The inherently dangerous felony limitation. Does the crime by its nature inherently create a high probability of the loss of life? 2. If the underlying felony is an assaultive crime, FM does not apply. (Of course, they could probably be charged with malice murder.) The predicate felony must be independent of the homicide.

Statutory Forms of Murder: (degrees are a pure statutory form) 1st degree: Must look at the statute.: usually follow the PA model. (1): Method: Poison, lying in wait. (2): Type of felony: Rape or robbery. (3): Willful, deliberate and premeditated (could be the blink of an eye). 2nd degree: All other kinds of murder. MPC: Purposely, Knowingly, or Recklessly manifesting an extreme indifference to the value of human life. There are no degrees. Certain felonies manifest an extreme indifference to the value of human life. there is not felony murder rule per se in the MPC.

However,

Manslaughter: CL: The killing of another human being w/o malice aforethought. Voluntary: Heat of passion manslaughter. 1. D killed b/c of adequate provocation (provocation as it pertains to a person of ordinary temperament). AND eg. Guy catches his wife in the act with another man. eg. Observe the seduction of ones young daughter eg. Observe a serious battery Words alone were never sufficient. 2. Killed during heat of passion. AND 3. Killing occurred before the actor had a reasonable opportunity to cool off.

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not

Voluntary GA: Sudden, violent, and irresistible passion resulting from serious provocation. But if had a cooldown period then it is murder, manslaughter. Manslaughter (MPC): 1. Recklessly (conscious disregard not an extreme disregard for human life.) OR 2. Kills during extreme mental or emotional disturbance for which there is reasonable explanation or excuse. In some jurisdictions today a murder can be reduced to voluntary manslaughter based on diminished capacity. Involuntary: (same penalty as voluntary under CL). 1. A killing that occurs as a result of criminal negligence. A lawful act committed in an unlawful manner (criminally neg). Was D aware that he was taking an unjustifiable risk? If yes, malice murder, if not then invol. mans. 2. Misdemeanor manslaughter rule. An unintended homicide which occurs during the commission of an unlawful act, not felony. GA involuntary: misdemeanor manslaughter OR commission of a lawful act in an unlawful manner. eg. nonproportional self-defense. MPC: Negligent homicide: Gross deviation from the standard of care. Sort of like involuntary manslaughter, but MPC does not have invol. manslaughter.

RAPE: CL: Sexual intercourse of a male with a female, not his wife, w/o her consent. General Intent Crime. Forcible Rape: Actual or threat of force likely to cause death or serious bodily injury coupled with the womans lack of consent. Resistance Requirement: (Older cases) Resist to the utmost. (Newer cases) Some states have abolished the resistance rule. Most have reduced it to almost nothing. Some say that merely verbally resisting is enough. In NJ every act of non-consensual intercourse is considered forcible rape. Today many states have abolished the marital exception.

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LARCENY: Protects the possessory right, not the ownership right. CL: 1. The trespassory taking and constructive possession is not the same as custody. eg. When you are handling a ring in a jewelry store, you have custody, but not possession. Obtaining consent by fraud is still a trepassory taking. eg. A gives B his car to use for an hour, and then B never brings the car back, never having intended to bring it back. But if she did originally intend to bring it back, then it is not larceny. 2. carrying away of the CL: even one inch is carrying away. 3. personal property of another with the 4. intent to steal. steal: intent to permanently deprive of possession. eg. This is why states differentiate between auto theft and joyriding. EMBEZZLEMENT: Not a CL crime. Statutory only. A person lawfully receives possession of the property but then converts it for his own use. Eg. I leave my car at a parking garage. They take my car and sell it. eg. I give $50 to the bank teller to put into my bank account. She now has lawful possession of the money. But it she puts it into her pocket, she has now committed embezzlement. Eg. She puts the money into the drawer. The bank now has possession. If she then later takes it out of the drawer she has committed larceny against the bank. FALSE PRETENSES: Not at common law. Statutory only. Transfer ownership fraudulently. INCHOATE OFFENSES: Gives the police the chance to stop a crime before it occurs. But where do we draw the line. ATTEMPT: Mens Rea: Must have the specific intent to commit the crime in question. The intent must be proven even if intent is not required to prove the target crime. Eg. Jack blindfolds himself and fires a gun into a crowded room, not intending to kill anyone. If he wounds someone it is not attempted murder b/c he did not intend to kill anyone. However, if that person had died, it would have been murder.

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Actus Reus: How far must it go in order to qualify as an attempt? How far must the attempt go before we can arrest them for attempted murder? There is not brightline. Courts say that the line is between preparation and perpetration. This is a useless standard. CL: How close to committing the crime? How much has D already done? CL: I. The physical proximaty test. II. The dangerous proximaty test. Holmes. 1. How physically close. 2. How close temporally. 3. How serious is the crime. III. The equivocality test. 1. Look at Ds conduct. Once you can figure out what he is intending, he has committed the attempt. IV. Probable desistance test. Has passed the point of no return.

GA: substantial step. MPC: If that person takes a substantial step toward committing the target offense. This test will usually result in conviction more easily than any of the common law tests. Defenses: 1. Impossibility: Most states have abolished, as has the MPC. Factual impossibility: a factual circumstance unknown to D prevents the crime from being carried out. Not a defense CL. eg. Nothing in the pocket for the pick pocket to get. If the circumstances had been as D believed them to be, then his crime would have been successful. Legal impossibility: CL defense, when D, if his conduct was fully carried out would not constitute the crime. eg. Charlie was already dead when D fired the gun at Charlie. It is legally impossible to murder a dead man. People v. Jaffe: Jaffe was a fence. He received property that he thought was stolen, but which was not. He was not is not possible to receive stolen property if the stolen. Legal impossibility. However, others would argue that it was a clear case of factual impossibility, therefore Jaffe should have been guilty. Many cases can be argued as either factual or legal impossibility. That is why many courts want to throw out the distinction and abolish the defense of legal impossibility. MPC has thrown it out. 2. Defense of Renunciation: CL did not recognize this. MPC does.

convicted b/c it property was not

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(1) Abandon the attempt voluntarily. (not b/c the cops were about to get you. CRIMINAL SOLICITATION: If a person requests or encourages someone to commit a crime, the instant he utters those words he has committed the crime of solicitation. Solicitation merges into the crime. MPC: It is solicitation even if the attempted communication is unsuccessful. Complete and voluntary renunciation is a defense. GA: Same as common law.

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CONSPIRACY: CL: An agreement between 2 or more persons to commit an unlawful act. It requires a specific intent on the part of both persons to commit the crime. The instant there is a meeting of the minds in CL, the conspiracy is complete. Sometimes purpose can be inferred from knowledge. (eg. renting rooms to prostitutes on a regular basis). MPC: requires an overt act. GA: an overt act. Federal need an overt act unless drugs. Many jurisdictions require an overt act to commit the conspiracy. A conspiracy can be: Wheel Chain Hybrid: Wheel and chain. Plurality Requirement: Under common law, two or more persons must have the requisite mens rea. eg. Therefore if one of the two was an undercover cop, there would be no conspiracy. eg. If one of them is insane, there is no conspiracy. Furtherance Rule: Each person in the chain is guilty of all the crimes. Whartons Rule: CL There can be no conspiracy if the underlying crime requires two people. If a seller and buyer of drugs make an exchange, that is not a conspiracy. However, if we have three people involved in the drug buy, all three are now in the conspiracy.

MPC does not have the Plurality Requirement. MPC rejects Whartons rule. Wayne Lafave wrote a Hornbook on Conspiracy. Merger: CL: no. MPC: yes GA: yes Federal: maybe Defense of Abandonment: CL: no MPC: yes, if renounces his criminal purpose, and then thwarts the conspiracy by a complete and voluntary renunciation of his criminal purpose. GA: must withdraw before the overt act.

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COMPLICITY Criminal law only holds people liable for their own actions. Unlike tort law, there is no vicarious liability. Accomplice Liability: There is no such crime as aiding and abetting or complicity or accessory. Accomplice law makes an accomplice liable for the acts of the perpetrator. The accomplice derives his liability from the perpetrator and is guilty of the same crime. CL Terms: Have been abolished almost everywhere. 1. Principal in the 1st degree: the perpetrator of the crime. 2. Principal in the 2nd degree: the accessory at the fact. He is there when the crime is committed. eg. A fellow robber in the bank. eg. The getaway driver. 3. Accessory before the fact: Is not at the scene of the crime. eg. A gives B the gun to be used in the robbery, but does not go along for the robbery. 4. Accessory after the fact: usually treated less seriously than prin. in the 1st deg. Usually found guilty of obstruction of justice, not the crime itself. What makes a person an accomplice? Actus reus: Solicitation makes one an accomplice. But there is a merger doctrine. The solicitation merges into the completed crime. But when A solicits B, and they agree, there is now a conspiracy. The crime of conspiracy does not merge into the completed offense. 2. If you give someone the gun for the crime, you are an accomplice. 3. If you give encouragement, you are an accomplice. 4. A person can be an accomplice even if it can be proven that the crime would have been committed anyway. There does not have to be a But For causation. You are not an accomplice if you had no mens rea. Mens rea: Two necessary states of mind. 1. The intent to assist the primary party. 2. The intent that the primary party commit the crime. Is knowledge enough, or must there be purpose. MPC: Knowledge is not enough. Most courts require Purpose. Minority or jurisdictions: if you furnish the instrumentality that you know will be used in the crime, then you are an accomplice. Sometimes purpose can be proven from knowledge. LL charges a prostitute more than normal rent b/c he knows what she is doing. His knowledge proves purpose.

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Natural and probable consequences doctrine (a forseeability doctrine). (Mens Rea issue). CL: The getaway driver is guilty of all the crimes the that occur in the bank if the other crimes were a natural and probable consequence of the primary crime. Can someone be an accomplice to a crime of recklessness? Some courts say no, but most courts say that the person can be convicted. What needs to be shown whether the accomplice had the same mens rea as the actual perpetrator. This majority view is also the MPC view. eg. You tell a cabby to drive fast so that you dont miss your flight. If he gets in a wreck while speeding, you too are guilty. You cannot be an accomplice if there is nothing to derive. eg. Sly, with his dads permission, gets Stupid to help him, Sly, to break into his Slys dads store. B/c there was no crime, Sly breaking into his fathers store with his fathers permission, there was no crime of burglary. But b/c there was no crime, Stupid cannot be an accomplice. There cannot be accomplice liability w/o a crime. Another example: If the principal in the first degree is found not guilty due to an excuse defense (eg. insanity) the accomplice can still be convicted of the crime. Always look at actus reus, mens rea, and whether a crime was committed. Conspiracy liability: The Pinkerton Case: One of the conspiring brothers is in jail while his brother commits the tax crime. The jailed brother cannot be convicted under accomplice liability but he can be convicted under conspiracy liability: 1. The crime was an object of the conspiracy OR 2. The crime was foreseeable. The Pinkerton Doctrine can get extreme: Eg. The drug chain. From the coca fields to the actual street sail. Is every party in the chain a party to the entire conspiracy? Yes! Every member of the doctrine is liable for every crime committed by every other member of the conspiracy. The MPC rejects the Pinkerton Doctrine.

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