Greenawalts Characteristics of Punishment - performed by, and directed at, agents who are responsible in some sense - involves

harmful or unpleasant consequences - unpleasant consequences are preceded by a judgment of condemnation - imposed by someone who has the authority to do so - imposed for a breach of an established rule of behavior - imposed upon an actual or supposed violation of this rule of behavior Retributivism backward-looking, finds justification for punishment in the past; grounded in notions of moral decency, based on the harm and culpability (greater harm and intentional decision-making = greater punishment) Utilitarianism forward-looking, looks for the future benefits that will derive from punishing a person - deterrence - incapacitation - rehabilitation punishment itself is an evil according to utilitarians, because it deliberately inflicts harm on a human being; therefore we should punish criminal only if some good is achieved by this act Theories of Punishment Incapacitation (restraint) while imprisoned, a criminal has fewer opportunities to commit acts causing harm to society Special Deterrence punishment may deter the criminal from committing future crimes General Deterrence punishment may deters others from committing similar crimes Retribution punishment imposed to vent societys sense of outrage and need for revenge Rehabilitation imprisonment provides the opportunity to mold or reform the criminal into a person who, upon return to society, will conform her behavior to societal norms Education the publicity attending the trial, conviction, and punishment of some criminals serves to educate the public to distinguish good and bad conduct and to develop respect for the law. Proportionality (Ewing v. California) 8th Amendment only prohibits extremely disproportionate sentences (i.e. three strikes is fine as long as you justify it with policy states can do whatever policy they want)

Process and Prohibitions

Criminal Process - begins when the legislature criminalizes something in the statute - report, detection of, or suspicion that a crime has occurred - investigation - arrest - bail determination - charging decision (indictment by grand jury, or information (complaint in minor

cases) - preliminary hearing judge determines if theres enough probable cause to proceed - discovery - motions (suppression, dismissal) - trial - sentencing Jury Nullification Double Jeopardy clause no person shall be subject for the same offense to be twice put in jeopardy Jury may shield someone forever for some conduct state cannot appeal, and defendant cannot be retried - defendant admits charge (i.e. civil disobedience and jury acquits anyway) - jury can nullify in favor of the government, but judge can still order acquittal and the defendant still has access to appeals Legality No crime without law, no punishment without law Statutory claims/vagueness - legislative intent is to be ascertained by appropriate means and indicia, such as the purposes appearing from the statute taken as a whole, the phraseology, the words (ordinary or technical), the law as it prevailed before the statute, the mischief to be remedied, the remedy, the ends to be accomplished, statutes in pari material, the preamble, the title and other like means - a criminal statute must be sufficiently definite to give notice of the required conduct to one who would avoid its penalties, and to guide the judge in its application and the lawyer in defending (In Re Banks, N.C. 1978) Lenity/strict construction if after all attempts, the statute is still vague, and we have two equally plausible interpretations, we should decide for the defendant and against the government Legality/no judicial crime creation (Keeler v. Superior Court, Cal. 1970) Constitutional Limitations on Crime Creation - No Ex Post Facto Laws, which operate retroactively to: o Make criminal an act that when done was not criminal o Aggravate a crime or increase the punishment therefore o Change the rules of evidence to the detriment of criminal defendants as a class; or o Alter the law of criminal procedure to deprive criminal defendants of a substantive right - No Bills of Attainder, which are legislative acts that inflict punishment or denies a privilege without a judicial trial Effect of Repeal at common law, in the absence of a savings provision, the repeal or invalidation of a statute operates to bar prosecution for earlier violations, providing the prosecution is not yet underway at the time of repeal; repeal will not operate to set free a person who has been prosecuted and whose conviction is res judicata.

Elements of a Crime 1) Actus Reus (guilty act): a physical act or omission by the defendant; 2) Mens Rea (guilty mind): the state of mind or intent of the defendant at the time of his act 3) Concurrence: the physical act and the mental state existed at the same time; and 4) Harmful Result and Causation: a harmful result caused (both factually and proximately)

Actus Reus
Without an act, there is no crime Common Law The defendant must have either performed a voluntary physical act (bodily movement) or failed to act under circumstances imposing a legal duty to act. - a thought is not an act - speech, however, is an act that can result in criminal liability Voluntariness the act must be a conscious exercise of the will - as long as there is at least ONE voluntary act in the defendants course of conduct, he may be criminally responsible (i.e. driving w/epilepsy) Unvoluntary Acts: 1) conduct that is not the product of the actors determination 2) reflexive or convulsive acts 3) acts performed while the defendant was either unconscious or asleep unless the defendant knew they might become engaged in the dangerous behavior Omissions A legal duty to act can arise from: - statute (i.e. reporting an accident) - contract (lifeguard, nurse) - relationship between defendant and victim (parent/child, spouse) - voluntary assumption of care - the creation of peril by defendant - duty to control the conduct of another (i.e. employee) MPC MPC also requires a voluntary act, or an omission where there is a legal duty 2.01 Requirement of Voluntary Act; Omission as Basis of Liability; Possession as an Act (1) A person is not guilty of an offense unless his liability is based on conduct which includes a voluntary act or omission to perform an act of which he is physically capable. Acts which are not voluntary include: (a) reflex or convulsion; (b) bodily movement during unconsciousness or sleep; (c) conduct during hypnosis; (d) bodily movement that otherwise is not the product of the effort or determination of the actor, either conscious or habitual.

Omissions, 2.01(3)(a)-(b) Omission satisfies actus reus: 1) when statute defining the offense expressly states that failure to act is a crime; or 2) defendant has a duty to act imposed by civil law.

- landowner Duty arises when defendant is aware of the facts creating the duty to act, and it must be reasonably possible for defendant to perform the duty or obtain the help of others in performing it. Possession - is an act is defendant has Possession a persons possession is control of the object long enough to have sufficient for criminal responsibility if, an opportunity to terminate his possession, after becoming aware of an illegal but he need not be aware of its illegality or possession, he does not terminate within a true nature sufficient period - Criminal liability for an omission only attaches when theres a legal duty

Mens Rea Intent and Willful Blindness

General Intent theres no mental state set out in the statute; assumption is you just need a morally blameworthy or guilty mind Specific Intent Delaware: there is a specific mental state set out in the statute (statute specificity) - Arizona: specific intent means purposely or knowingly, and general intent is the lower mental states (higher/lower levels) - New Jersey: specific intent is a mental state requirement over and above the mental state required of the actus reus, and general intent is the baseline intent of the actus reus (i.e. simple possession is general intent, and possession with intent to distribute is specific intent) (more required) - Major Specific Intent Crimes: solicitation (intent to have the person solicited commit the crime), attempt (intent to complete the crime), conspiracy (intent to have the crime completed), first-degree murder (premeditated intent to kill), assault (intent to commit a battery), larceny and robbery (intent to permanently deprive another of his interest in the property taken, burglary (intent at the time of entry to commit a felony in the dwelling of another) Transferred Intent when a defendant intends to harm one, and accidentally harms another, the intent is transferred to the victim - act must be completed for intent to transfer; cant have transferred intent for attempt - intent does not transfer from crime to crime, only person to person Motive the reason or explanation underlying the offense is generally immaterial to the substantive criminal act; distinct from the intent to commit a crime Common Law intent under the common law includes MPCs purposely and recklessly - includes acts the actor wanted to occur, and acts the actor knew were substantially MPC 2.02 General Requirements of Culpability (3) When the culpability sufficient to establish a material element of an offense is

certain to occur (but didnt necessarily want)

not prescribed by law, such element is established if the person acts purposely, knowingly, or recklessly. - under MPC, a higher level of culpability, if proven, can substitute for any lower level

Purposely. A person acts purposely with respect to a material element of an offense when: (i) if the element involves the nature of his conduct or a result thereof, it is his conscious object to engage in the conduct of that nature or to cause such a result; and (ii) if the element involves the attendant circumstances, he is aware of the existence of such circumstances or he believes or hopes that they exist. Knowingly. A person acts knowingly with respect to a material element of the offense when: (i) if the element involves the nature of his conduct or the attendant circumstances, he is aware that his conduct is of that nature or that such circumstances exist; and (ii) if the element involves a result of his conduct, he is aware that it is practically certain that his conduct will cause such a result. Recklessly. A person acts recklessly with respect to a material element of an offense when he should be aware of a substantial and unjustifiable risk that the material element exists or will result from his conduct. The risk must be of such a nature and degree that, considering the nature and purpose of the actors conduct and the circumstances known to him, its disregard involves a gross deviation from the standard of conduct that a lawabiding person would observe in the actors situation. Negligently. A person negligently with respect to a material element of the offense when he should be aware of a substantial risk that the material element exists or will result from his conduct. The risk must be of such a nature and degree that the actors failure to perceive it, considering the nature and purpose of his conduct and the circumstances known to him, involves a gross deviation from the standard of care that a reasonable person would observe in the actors situation. Willful Blindness Common Law the establishment of knowledge is allowed under willfull blindness - some courts MPC 2.02(7) Requirement of Knowledge Satisfied by Knowledge of High Probability When knowledge of the existence of a particular fact is an element of an offense, such knowledge is established if a person is aware of a high probability of its existence, unless he actually believes that it does not exist. - deliberate ignorance and positive knowledge are equally culpable (U.S. v. Jewell)

Strict Liability
A strict liability offense does not require awareness of all the factors constituting a crime. The major significance is that certain defenses, such as mistake of fact, are not available because there is no mens rea for them to negate Common Law MPC public welfare offenses 2.05 rejects strict liability for crimes - regulate dangerous of deleterious devices - if a criminal statute imposes strict or products, obnoxious waste materials liability, it is transformed from a - heighten the duties of those in control of crime to a violation (no legal particular industries, trades, properties or disability or jail, only fines) activities that affect public health, safety or - if you can prove a mens rea, an welfare absolute liability offense can - depend on no mental element, but consist become a crime only of forbidden acts or omissions - typically carry minor penalties - malum prohibitum conduct is only wrong because the legislature says its wrong (vs. malum in se crimes, which should obviously be wrong to the individual) statutory rape and similar offenses (where the element not requiring mens rea will be an attendant circumstance)

Mistake of Law and Fact

Mistake of Fact Common Law General Intent Offenses - Perkins rule: if no specific intent or other special mental element is required for guilty of the offense charged, a mistake of fact will not be recognized as an excuse unless it was based upon reasonable grounds - Blameworthiness is the standard for intent, and a reasonable mistake is not blameworthy only an unreasonable mistake is sufficiently blameworthy to prove general intent Exceptions: - Moral Wrong Doctrine even if mistake of fact was reasonable, may defeat mistake defense (i.e. act was MPC Since MPC is obsessed with mens rea, proving mistake of fact make you likely to get off. 2.04 Ignorance or Mistake (1) Ignorance or mistake as to a matter of fact or law is a defense if: (a) the ignorance or mistake negatives the purpose, knowledge, belief, recklessness or negligence required to established a material element of the offense; or (b) the law provides that the state of mind established by such ignorance or mistake constitutes a defense. (2) Although ignorance or mistake would otherwise afford a defense to the offense charged, the defense is not available if the defendant would be guilty of another

still morally wrong) - Legal Wrong Doctrine if mistake of fact was still a legal wrong, defendant may be convicted of the more serious offense that his conduct establishes (i.e. act, regardless of mistake, was still illegal) Specific Intent Offenses - a reasonable mistake of fact, or an unreasonable mistake of fact, so long as it is genuine, if it negates the special mental element of the offense, allows a mistake of fact defense (People v. Navarro) Strict Liability Crimes - without a mens rea requirement, there is nothing (no mental element) that a mistake of fact can negate

offense had the situation been as he supposed. (Ignorance or mistake mitigates to the alternate offense)

Mistake of Fact Flowchart (Common Law) - is the offense general intent, specific intent or strict liability? o If specific intent, does the mistake relate to the specific intent element? If YES, determine whether the mistake negates the specific intent elements (if so, not guilty) If NO, treat the offense as a general intent offense o If general intent, do culpability analysis: Did the defendant act in a morally blameworthy way? IF mistake was unreasonable, defendant is morally blameworthy (and therefore culpable) IF mistake was reasonable, defendant is not morally blameworthy (and therefore, is not culpable, UNLESS o Moral wrong doctrine applies, OR o Legal wrong doctrine applies o If strict liability, mistake is NOT a defense Mistake of Law Common Law Mistake or ignorance of the law is no excuse (People v. Marrero, N.Y. 1987) Exceptions: - when your mistake of law negates the mens rea element - same law mistake generally not a defense MPC Negation of mens rea 2.02(9) Culpability as to Illegality of Conduct Neither knowledge nor recklessness or negligence as to whether conduct constitutes an offense or as to the existence, meaning or application of the law

Specific Intent - different law mistake can be a defense only for specific intent crimes General Intent + Specific Intent - reasonable reliance relying on a reasonable statement of law from a responsible public official charged with interpretation or enforcement of the law - fair notice (Lambert v. California, 1957) only applies to passive conduct, not overt acts

determining the elements of an offense, is an element of such offense, unless the definition of the offense so provides. See also 2.04(1) (Mistake of fact, above) - only if it negates mens rea 2.04(3) A belief that conduct does not legally constitute an offense is a defense to a prosecution for that offense based upon such conduct when: Fair Notice (a) the statute or other enactment defining the offense is not known to the actor and has not been published or otherwise reasonably made available prior to the conduct alleged; or Reasonable Reliance (b)he acts in reasonable reliance upon an official statement of the law, afterward determined to be invalid or erroneous, contained in (i) a statute or other enactment, (ii) a judicial decision, opinion or judgment; (iii) an administrative order or grant of permission; or (iv) an official interpretation of the public officer or body charged by law with responsibility for the interpretation, administration or enforcement of the law defining the offense. Defense under 2.04(3) must be proven by preponderance of the evidence

Causation
Causation is only applicable for result Actual Cause (Cause-in-fact) - includes but-for causation a prohibited result would not have happened in absence of the actors conduct - substantial factor causation two or more independent actors commit separate acts, each of which is sufficient to bring about the prohibited result Proximate Cause (Legal Cause) - involves intervening but-for occurrence after actors conduct, and prior to the

prohibited result unforeseen intervening acts can cut off causation, and include: act of God, act or omission of victim or a third-party

- Negligence in medical treatment is not a superceding cause; it is a dependent intervening force which is foreseeable response to defendants conduct (most courts hold same result for victims refusal of medical care/treatment) 2.03 Causal Relationship Between Conduct and Result; Divergence Between Result Designed or Contemplated and Actual Result or Between Probable and Actual Result (1) Conduct is the cause of a result when: (a) it is an antecedent but for which the result in question would not have occurred; and (b) the relationship between the conduct and the result satisfies any additional causal requirements imposed by the Code or by the law defining the offense (2) When purposely or knowingly causing a particular result is an element of an offense, the element is not established if the actual result is not within the purpose or the contemplation of the actor unless: (a) the actual result differs from that designed or contemplated, as the case may be, only in respect that a different person or different property is injured or affected or that the injury or harm designed or contemplated would have been more serious or more extensive that that caused; or (b) the actual result involves the same kind of injury or harm as that designed or contemplated and is not too remote or accidental in its occurrence to have a just hearing on the actors liability or on the gravity of the offense. (3) When recklessly or negligently causing a particular result is an element of the offense, the element is not established if the actual result is not within the risk of which the aware or, in the case of negligence, of which he should be aware, unless: (a) the actual result differs from the probable result only in the respect that a different person or different property is injured or affected or that the probable injury or harm would have been more serious or more extensive than that caused; or (b) the actual result involves the same kind of injury or harm as the probable result and is not too remote or accidental in its occurrence to have a just bearing on the actors liability or on the gravity of the offense (4) When causing a particular result is a material element of an offense for which absolute liability is imposed by law, the element is not established unless the actual result is a probable consequence of the actors conduct.

Homicide Hierarchy
Common Law First-Degree Murder - premeditated and deliberate Second-Degree Murder MPC Murder - purposely or knowingly, OR recklessly under circumstances

malice aforethought, or extreme recklessness (depraved heart) Voluntary Manslaughter - heat of passion/provocation Involuntary Manslaughter - criminal negligence, regular recklessness

representing an extreme indifference to the value of human life Manslaughter - recklessly or murder under extreme mental/emotional distress Negligent Homicide - homicide committed negligently

Pre-Meditation
State v. Schrader (W.Va. 1982) - premeditation can be established in an instant, or twinkling of an eye State v. Guthrie (W.Va. 1995) any interval of time between the forming of the intent to kill and the execution of that intent, which is of sufficient duration for the accused to be fully conscious of what he intended, is sufficient to support a conviction for firstdegree murder People v. Morrin (Mich.App. 1971) the interval of time between formation of intent and the actual killing, to the Morrin standard requiring the time be long enough to subject your response to a second look - premeditation and deliberation is a process undisturbed by hot blood Midgett v. State (Ark. 1987) if premeditation and deliberation was for a lesserincluded offense and not the eventual death, defendant can only be found guilty of the lesser-included offense State v. Forrest Among the factors to be considered in determining whether a killing was with premeditation and deliberation are: - want of provocation on the part of the deceased - the conduct and statements of the defendant before and after the killing - threats and declarations of the defendant before and during the course of the occurrence giving rise to the death of the deceased - ill-will or previous difficulty between the parties - the dealing of lethal blows after the deceased had been felled and rendered helpless - evidence that the killing was done in a brutal manner

Voluntary Killings
Between intentional and unintentional homicide, assume an intentional killing will be murder Common Law First-degree murder MPC 210.1 Criminal Homicide

Premeditated and deliberate Lying in wait, poisoning, killing someone in the process of committing another felony (felony murder), specific offense triggers (arson, rape, robbery or burglary) Second-degree murder Plain old, classic murder is almost always classified as second-degree murder Malice Aforethought - intent to kill (purposely or knowingly) - intent to cause serious bodily harm (purposely or knowingly) - depraved heart murder (an unintentional killing) - intent to commit a felony (felony murder doctrine) Voluntary Manslaughter An intentional homicide, done in the heat of passion, caused by adequate provocation, before there has been reasonable opportunity for the passion to cool Rule of Provocation - there must have been adequate provocation - the killing must have been in the heat of passion - it must be a sudden heat of passion the killing must have followed the provocation before there has been a reasonable opportunity for the passion to cool - must be a causal connection between the provocation, the passion and the fatal act Traditional Categories of Adequate Provocation - discovering ones spouse in the act of sexual intercourse with another - mutual combat - extreme assault and battery upon the defendant - resisting an illegal arrest - injury or grievous abuse of a close relation (child, spouse) - sudden discovery of a spouses

(1) A person is guilty of criminal homicide is he purposely, knowingly, recklessly or negligently causes the death of another human being. (2) Criminal homicide is murder, manslaughter, or negligent homicide. 210.2 Murder (1) Criminal homicide constitutes murder when: (a) it is committed purposely or knowingly; or (b) it is committed recklessly under circumstances manifesting extreme indifference to the value of human life. Such recklessness and indifference are presumed if the actor is engaged or is an accomplice in the commission of, or attempt to commit, or flight after committing or attempting to commit robbery, rape or deviate sexual intercourse by force or threat of force, arson, burglary, kidnapping or felonious escape. 210.3 Manslaughter (1) Criminal homicide constitutes manslaughter when: (a) it is committed recklessly; or (b) a homicide which would otherwise be murder is committed under the influence of extreme mental or emotional disturbance for which there is reasonable explanation or excuse. The reasonableness of such explanation or excuse shall be determined from the viewpoint of a person in the actors situation under the circumstances as he believes them to be. Words alone are sufficient provocation under the MPC to get a jury instruction for manslaughter

adultery Movement in the law is away from traditional categories of provocation, and toward leaving it to the jury under a reasonable man standard Words, no matter how abusive or taunting, do not constitute adequate provocation for mitigation of murder to manslaughter - exception: informational words accompanied by conduct indicating a present intention and ability to cause the defendant bodily harm

Involuntary Killings
Common Law Depraved Heart Murder (Second-Degree Murder) Express malice deliberate intention unlawfully to kill (or cause grievous bodily injury) Implied malice killing with abandoned and malignant heart, or in the absence of provocation Depraved heart murder, in the end, has nothing to do with good or evil just conscious disregard of a risk representing an extreme indifference to the value of human life (aka extreme recklessness) - even a small risk of death can be depraved heart murder if there is no justification for the risk If you have justification, it can show that youre not indifferent to human life. However, even a small risk can be depraved heart if theres no justification. Involuntary Manslaughter Criminally negligent or reckless acts leading to death - Criminal/Gross Negligence so gross that a jury would find punishment appropriate, in addition to damages in the civil context of negligence MPC 210.2 Murder (1) Criminal homicide constitutes murder when: (b) it is committed recklessly under circumstances manifesting extreme indifference to the value of human life. Such recklessness and indifference are presumed if the actor is engaged or is an accomplice in the commission of, or attempt to commit, or flight after committing or attempting to commit robbery, rape or deviate sexual intercourse by force or threat of force, arson, burglary, kidnapping or felonious escape. 210.4 Negligent Homicide (1) Criminal homicide constitutes negligent homicide when it is committed negligently.

Felony Murder

Common Law MPC All murder committed in the perpetration MPC rejects the felony murder rule, but it of, or attempt to perpetrate a felony (or still exists in the common law or by enumerated felonious acts), is murder of statutory enaction the second-degree 210.2(1)(b) robbery, rape, deviate - by charging felony murder, you sexual intercourse (by force or threat of dont have to prove mens rea with force), arson, burglarly, kidnapping, or regard to the killing (just intent to felonious escape commit the felony) - you MUST be guilty of the underlying felony Can be made first-degree murder by statute - Deterrence as a rationale for the felony murder rule want to deter unintentional killings, not the associated crimes in and of themselves Limitations on the Felony Murder Rule - inherently dangerous felony - independent felony (merger) o if the triggering charge is an assault, you cant use the underlying assaultive conduct to get felony murder underlying felony is unquestionably an integral part and included in the face of the homicide o if there is a separate purpose over and above the assaultive conduct, the merger bar to the felony murder rule doesnt apply - you cant be held liable for actions of an innocent party (such as law enforcement), as you can with accomplices or co-felons (State v. Sophophone) Res Gestae doctrine - even if the felony is over, felony murder can be charged if death occurred in escape and its one continuous sequence of events (Foller v. State, State v. Sophophone)

Rape and Sexual Assault

Force and nonconsent are the key concepts of law in rape Common Law MPC Blackstone the carnal knowledge of a 213.1 Rape and Related Offenses woman forcibly and against her will (1) Rape. A male who has sexual intercourse with a female not his wife is Actus Reus guilty of rape if: - Intercourse (a) he compels her to submit by force or by - Force, either actual or constructive threat of imminent death, serious bodily - Nonconsent and/or against the will of the injury, extreme pain or kidnapping, to be victim inflicted on anyone; or (b) he has substantially impaired her power Modern legislative trend is to use the to appraise or control her conduct by phrase forcible compulsion - combining administering or employing without her force and consent elements into a single knowledge drugs, intoxicants or other phrase means for the purpose of preventing

Mens Rea Generally a general intent crime need moral culpability or blameworthiness - some jurisdictions require purposefulness of nonconsensual sex or recklessness with regard to consent

resistance; or (c) the female is unconscious; or (d) the female is less than 10 years old. Resistance Requirement MPC doesnt have a resistance requirement.

Resistance Requirement Mistake as to Consent Originally anything less than deadly force - defendant must be at least reckless had to be met with extreme resistance as to the question of whether the (Rusk v. State) victim consented Has been diluted and is falling into disfavor - if you can only prove negligence as to consent, you cant get a rape Mistake of Fact conviction under MPC (see 213.1, - general intent reasonable mistake of fact 2.02(3)) may negate mens rea - not specifically addressed in MPC, - specific intent reasonable or but nonconsent is implied in unreasonable mistake of fact may negate compulsion mens rea - common law rules are beginning to erode, with some jurisdictions moving away from accepting a reasonable mistake defense with regard to consent

Force Either physical force, or threats of serious bodily harm which would reasonably construe fear (aka constructive force) Nonconsent itself is not force (Commonwealth v. Berkowitz) Threats of force must be specific to the rape, not to prior acts (State v. Allston) Determination of forcible compulsion factors: - ages of victim and accused - mental and physical conditions of the victim and accused - atmosphere and physical physical setting of an alleged incident - position of authority of accused - domination or custodial control of victim - whether victim was under duress

Consent and Withdrawal

Consent Consent is a complete defense to rape Consent induced by violence or is not consent Prior consent is not in effect for the instant act of intercourse Withdrawal of Consent

People v. Vela (1985) its not rape if the initial penetration is consensual - essence of rape is the outrage of a nonconsensual violation of her womanhood, and that doesnt exist if consent is withdrawn and THEN force is used People v. Roundtree (2000) - withdrawal of consent effectively nullifies any earlier consent and subjects the male to forcible rape charges if he persists in what has become nonconsensual intercourse Common Law Rule - if consent is withdrawn after penetration, its not rape - person can be and often is guilty of another sexual assault offense or a battery

Social Context and Law Reform

Rape Shield Laws - Prior sexual history of the claimant with someone other than the defendant may not be admitted, other than to show the source of semen, pregnancy or disease Force Requirement Abandonment - nonconsensual sex is forced sex, regardless of whether there is resistance Marital Immunity Marriage is implied consent to intercourse (a husband cant rape his wife) - woman is property of her husband, has no separate legal identity - protects against government intrusion into the realm of marriage - deters divorce - difficult to prove, danger of false accusations - policy-wise, just isnt as big of a deal as stranger rape

Rape by Fraud and Statutory Rape

Fraud in the Factum Vitiates consent - situations where the victim thought they were consenting to marital sex are fraud in the factum rather than fraud in the inducement (Boro v. Superior Court) Fraud in the Inducement Does not vitiate consent deception relates not to the act done, but the reason or circumstances (Minkowski, Boro) Statutory Rape Historically not gender-neutral most originally only outlawed sex with an underage female, but today that has changed dramatically Strict liability crime; no mens rea required - reasonable mistake is not a defense because theres no mens rea for it to negate Most jurisdictions have an age range for the statutory trigger at around 16 years old

Theft

Common Law Larceny Trespassory taking and carrying away of personal property of another with intent to steal - the slightest carrying away will suffice Claim-of-Right Doctrine A person is not guilty of larceny if they reasonably believe the property belongs to them, or that they have a legal right to claim it - breaking down in terms of robbery for debt collection Robbery Larceny from a person by means of violence or intimidation Embezzlement Unlawful conversion of property in a nontrespassory manner - typically a breach of trust False Pretenses Obtaining possession and title to property by false representation or fraud

MPC

Defenses
Failure of Proof An element of the crime is negated - each and every element must be proven beyond a reasonable doubt - if mistake of fact negates mens rea, you have a failure of proof defense Offense Modification Background rules exculpate defendant, even though each element could have been sufficiently proving - i.e. paying ransom in a kidnapping is aiding and abeting Public Policy Statutes of limitations, immunity, incompetency, etc. - resource constraints, evidence degrades, witnesses memories fade Finality - we want criminal matters to end; cant continue to litigate forever

Justification All elements are proven, including the social harm, but the social harm is somehow outweighed by either a greater social interest or avoidance of a greater social harm - self-defense they committed the crime, but did nothing wrong Excuse All elements are established, social harm not only present but not outweighed or negated; however, we decline to impose criminal liability because we think theyre not blameworthy in the moral sense - insanity Affirmative Defenses Prosecution has the sole burden of proof in criminal cases. However, for affirmative defenses, defendant must establish a prima facie case that the requirements of the defense exist. Burden of proof for the elements of the crime, however, does not shift.

Self-Defense
Common Law Threat - actual or apparent - unlawful Unlawful use of deadly force Imminent peril of death or bodily harm respond to the threat Necessity Objectively reasonable belief of necessity Necessity Right of self-defense arises when necessity begins and disappears when it ends Clean Hands Doctrine Generally must be fault-free to benefit from self-defense Exceptions An aggressor can regain their right to use self-defense if: - the aggressor has already withdrawn in good faith and communicated that desire to the other party - if the victim of a minor fight escalates into deadly force without giving the aggressor a chance to withdraw MPC 3.04 Use of Force in Self-Protection (1) Use of Force for Protection of the Person. the use of force upon or toward another person is justifiable when the actor believes that such force is immediately necessary for the purpose of protecting himself against the use of unlawful force by such other person on the present occasion. - imminency is not the timing of the threat itself, but the timing of the necessity to act (2) Limitations on Justifying Necessity for the Use of Force (a) The use of force is not justifiable under this Section: (i) to resist an arrest that the actor knows is being made by a peace officer, although the arrest is unlawful; or (ii) to resist force used by the occupier or possessor of property or by another person on his behalf, where the actor knows that the person using the force is doing so under a claim of right to protect the property (b) The use of deadly force is not justifiable under this Section unless the actor believes that such force is necessary to protect

Rule of Retreat You must retreat to the wall no defense is available if you have a safe attempt to retreat and did not attempt it before striking back with deadly force Exceptions - Avenue of retreat is/appears unsafe - Castle doctrine/stand your ground laws There is no rule of retreat for nondeadly force, even if retreat would result in no further harm to either party. Proportionality Deadly force may not be used to repel a non-deadly attack

himself against death, serious bodily harm, kidnapping or sexual intercourse compelled by force or threat; nor is it justifiable if: (i) the actor, with the purpose of causing death or serious bodily injury, provoked the use of force against himself in the same encounter; or (ii) the actor know that he can avoid the necessity of using such force with complete safety by retreating or surrendering possession of a thing to a person asserting a claim of right thereto or by complying with a demand that he abstain from any action that he has no duty to take, except that: (1) the actor is not obliged to retreat from his dwelling or place of work, unless he was the initial aggressor or is assailed in his place of work by another person whose place of work he knows it to be; and (c) A person employing protective force may estimate the necessity thereof under the circumstances as he believes them to be when the force is used, without retreating, surrendering possession, doing any other act which he has no legal duty to do or abstaining from any lawful action.

Defense of Property You may not use deadly force to protect personal property. Defense of Habitation Deals largely with the time of entry into the home; distinct from castle doctrine. At the time of entry, one is able to use deadly force to repel an intruder or invader - some jurisidictions limit defense of habitation to cases where the intruder is intending to commit certain felonies; others require that the intruder be a threat to the actor or other occupants of the home Once the intruder is in the house, we revert to a self-defense analysis. - Doctrine concerned more with homeowners ability to ascertain the risk, rather than halting a continuing invasion of privacy - Once theyre in, you have the ability to ascertain their level of threat to you and react accordingly restrictions on self-defense now apply Defense of Others

Right parallels the right a person wouldve had for themselves One may use force in defense of any other person (without any special relationship requirement) if the defendant reasonably believed that the other party had the legal right to use force in their own defense. Crime Prevention Usually claimed by police, or private persons working with police Deadly force cannot be used to prevent a misdemeanor. Majority limit deadly force to very serious felonies; minority allow it for any felony Battered Womens Syndrome Confrontational Homicides self-defense is generally available Nonconfrontational Homicides jurisdictions are split on whether self-defense is available Hired-Gun Homicides generally not available Imperfect Self-Defense You dont get a complete acquittal, but you do get some mitigation or relief - BWS, deadly force in response to a nondeadly assault, defendant was aggressor or provoker Transferred Intent and Innocent Bystanders If you miss the aggressor and kill an innocent bystander, transferred intent typically keeps self-defense available

Necessity and Duress

Necessity Necessity is a justification defense all elements of the crime are established, and there is social harm, but its outweighed by a greater social benefit Common Law MPC Rationale: 3.02 Justification Generally: Choice of - act mustve been done to prevent a Evils significant evil (1) Conduct that the actor believes is - no adequate alternative necessary to avoid a harm or evil to himself - the harm caused is not or another is justifiable, provided that: disproportionate to the harm (a) the harm or evil sought to be avoided by avoided such conduct is greater than that sought to be prevented by the law defining the Common law only recognizes necessity offense charged; and where there is a non-human cause (i.e. Act (b) neither the Code nor other law defining of God) the offense provides exceptions or defenses dealing with the specific situation involved; Test is objective a good faith belief in the and necessity of ones conduct is insufficient (c) a legislative purpose to exclude the justification claimed does not otherwise Defense is not available if defendant is at plainly appear.

fault in creating the situation which requires choice between evils.

Test under necessity is a subjective test if you had a genuine belief you were outweighing the harm, the jury find you not guilty (2) When the actor was reckless or negligent in bringing about the situation requiring a choice of harms or evils or in appraising the necessity for his conduct, the justification afforded by this Section is unavailable in a prosecution for any offense for which recklessness or negligence, as the case may be, suffices to establish culpability.

Duress Duress is an excuse defense all elements are proven, and social harm is not outweighed, but we do not believe they are morally culpable - the distinction is that criminal acts performed under duress are only condoned by society, rather than encouraged as under necessity Common Law MPC Elements 2.09 Duress - immediate threat of death or serious (1) It is an affirmative defense that the bodily injury actor engaged in the conduct charged to - a well-grounded fear that the threat constitute an offense because he was will be carried out coerced to do so by the use of, or a threat to - no reasonable opportunity to escape use, unlawful force against his person or the threat of harm the person of another, that a person of reasonable firmness in his situation would A threat to property will not suffice it have been unable to resist. must be a threat to a person, specifically a (2) The defense provided by this Section is threat of death or serious bodily injury. unavailable if the actor recklessly placed himself in a situation in which it was Exceptions probable that he would be subjected to - Clean Hands doctrine applies duress. The defense is also unavailable if - Duress is not a defense to murder or he was negligent in placing himself in such any intentional killing a situation, whenever negligence suffices to establish culpability for the offense Duress is only a defense if the coercive charged. agent is a human (not an act of God thats necessity) - under the MPC, there is no limitation to non-homicide context, and the threat need be neither deadly nor imminent - the threat, or use of force, must be directed at a person, not at property, under either scheme

the coercion must come from a human, and not from nature, under common law and the MPC

Duress can be deployed can be deployed in situations where necessity is unavailable, such as in situations where the social harm is not outweighed o also can be applied where equal harm results, or for harms whose balance is incalculable

Insanity and Diminished Capacity

Insanity Insanity is an excuse defense Procedural Overview Competency Hearing - Pretrial determination is the defendant competent to stand trial? o Not an insanity determination re: the actual offense o Due process interests in the defendant meaningfully participating in their own defense - Pretrial notice of the insanity defense o Must give notice prior to trial o Insanity is treated as an affirmative defense o Verdict of not guilty by reason of insanity often triggers civil commitment proceedings Why do we excuse for insanity? - lack of requisite mens rea Insanity Tests (MNaghten/MPC rules are dominant in the U.S.) MNaghten Rule A defendant is entitled to an acquittal if the proof establishes that: a) a disease of mind b) caused a defect of reason c) such that defendant lacked the ability at the time of his actions to either i. know the wrongfulness of his actions ii. understand the nature and quality of his actions It is irrelevant that the defendant may have been unable to control himself and avoid committing the crime loss of control because of mental illness is no defense in MNaghten jurisdictions if the defendant still knew of the wrongfulness of his act - MNaghten test focuses on cognitive (intellectual) capacity, not emotional maturity. Irresistible Impulse/Control Test Because of mental illness the defendant was unable to control his actions or to conform his conduct to the law; your mind cannot control your actions Durham Product Test Excuses criminal conduct that is the product of mental illness or defect A crime is a product of the disease if it wouldnt have been committed but for the disease Intended primarily to give psychiatrists greater liberty to testify concerning the defendants mental condition

MPC 4.01 A person is not responsible for criminal conduct if at the time of such conduct as a result of mental disease or defect he lacks substantial capacity (cognitive prong) either to appreciate the criminality of his conduct or to conform his conduct to the requirements of law (volitional prong) - the defendant may know something is wrong without appreciating that its wrong this is a looser standard than MNaghten Diminished Capacity As a result of mental defect short of insanity, defendant did not have the particular mental state required for the crime charged Mens rea variant - failure of proof defense o evidence of mental abnormality negates the requisite mens rea (for specific intent offenses) o may not succeed for general intent and strict liability offenses, but some jurisdictions allow the defense for any kind of offense - majority approach to diminished capacity Partial responsibility variant - government has proven mens rea and all other elements of the crime

Intoxication, Infancy and Background/Cultural Defenses

Voluntary Intoxication Intoxication is voluntary (self-induced) if is it the result of the intentional taking without duress of a substance known to be intoxicating; the person need not have intended to become intoxicated Generally not a defense to criminal liability, unless it can negate specific intent (as a failure of proof defense) - not available if defendant purposely became intoxicated in order to establish the defense Under MPC, if recklessness is an element of the crime, the MPC would permit using voluntary intoxication to negate it, because the act of drinking is sufficiently reckless Involuntary Intoxication Rare, but generally a good defense to all criminal liability Coerced Intoxication duress, true coercion (very rare) Pathological Intoxication special susceptibility to intoxication Intoxication by Innocent Mistake unexpected Grounds for dismissal - failure of proof/negation of mens rea - temporary insanity (doesnt carry civil commitment weight of a general insanity plea) Infancy

Juvenile Adjudication - under 7 infancy defense bars conviction - over 14 no infancy defense - between 7-14 rebuttable presumption that child does not have cognitive capacity to distinguish right from wrong Other available juvenile defenses: insanity, mental retardation, intoxication Rotten Social Background Doesnt have freestanding validity, but sneaks in through other doctrines

Inchoate and Group Crimes Attempt

Incomplete Attempt actor is somehow prevented from completing the desired act, and does not get to everything he intended to do Complete Attempt actor is somehow prevented from producing the intended result, even though he does every act planned Common Law Mens Rea Dual Intent 1) intent to perform the actus reus 2) the specific intent to commit the underlying crime Actus Reus an overt act in furtherance of that intent Traditional proximity test how close defendant came to completing the offense Majority/ MPC test substantial step Attempt is typically punished under the same grade of crime, but less serious, than the offense attempted There is no such thing as attempted felony murder (except in Florida) MPC 5.01 Criminal Attempt (1) Definition of Attempt. A person is guilty of attempt to commit a crime if, acting with the kind of culpability otherwise required for the commission of the crime, he: (a) purposely engages in conduct that would constitute the crime if the attendant circumstances were as he believes them to be; or (b) when causing a particular result is an element of the crime, does or omits to do anything with the purpose of causing or with the belief that it will cause such result without further conduct on his part; or (c) purposely does do or omits to do anything which, under the circumstances as he believes them to be, is an act or omission constituting a substantial step in a course of conduct planned to culminate in his commission of the crime. MPC treats attempt the same as the underlying offense, both in grade and degree There is no such thing as attempted manslaughter because 5.01 requires

purpose or belief that a result will occur (cant use recklessly or negligently) attempt to commit negligent crimes is logically impossible attempt to commit strict liability crimes is possible because defendant must act with the intent to bring about the proscribed result

Distinction Between Preparation and Attempt - mere preparation itself, unless it violates the law on its own, is not against the law and does not constitute attempt Physical Proximity Test close or immediate access to the completed crime Dangerous Proximity Test nearness or the danger and the greatness of the harm Indispensable Element Test something that is necessary to the commission of the crime has been obtained Probable Desistance Test - likelihood that the actor wouldve probably desisted on their own Abnormal Step Test average citizen would think this step went too far Res Ipsa Loquitur/Unequivocality Test persons actions manifest their intent (past the point of deciding whether to do something; its a go) Factual Impossibility not a defense to attempt; crime couldve still been committed if you fix your mistake (i.e. Gary Coleman/stabbing with a fake knife) Pure Legal Impossibility is a defense to attempt no law prohibiting the conduct (even if you thought it was illegal) (i.e. right turn on red) Hybrid Legal Impossibility still have a crime society wants to punish, and an actor seeking to break the law, but a factual mistake about an attendant circumstance made it not a crime (if facts were as the actor thought, it wouldve been a crime and it wouldve been possible for the actor to commit it, but theoretically its impossible (i.e. trying to bribe a juror, but that person isnt a juror) Abandonment Most jurisdictions have rejected the defense of abandonment MPC 5.04(1) Renunciation of Criminal Purpose you must have a complete and voluntary change of heart (not because youre afraid of getting caught, motivated by a change in circumstances, or to attempt at a better time) Defenses to Attempt Liability 1) Impossibility Pure Legal Impossibility is always a defense arises only when the defendant did, or intended to do, acts that would not constitute a crime under any circumstances (i.e. shoots off fireworks believing they are illegal, but theyre not) Factual Impossibility is no defense it would have been factually impossible for defendant to complete her plan even if she did all the things she intended to do (i.e. attempts to rob someone with no money)

Assault and Solicitation

Assault

Common Law Intentionally subjecting another to reasonable apprehension of receiving a battery Proximity required for assault is even closer than that of attempt

MPC 211.1 Assault (1) Simple Assault. A person is guilty of assault if he: (a) attempts to cause or purposely, knowingly or recklessly causes bodily injury to another; or (b) negligently causes bodily injury to another with a deadly weapon; or (c) attempts by physical menace to put another in fear of imminent serious bodily injury. (2) Aggravated Assault. A person is guilty of aggravated assault if he: (a) attempts to cause serious bodily injury to another, or causes such injury purposely, knowingly or recklessly under circumstances manifesting extreme indifference to the value of human life; or (b) attempts to cause or purposely or knowingly causes bodily injury to another with a deadly weapon. MPC 5.02(1) Criminal Solicitation A person is guilty of solicitation to commit a crime if with the purpose of promoting or facilitating its commission he commands, encourages or requests another person to engage in specific conduct that would constitute such crime or an attempt to commit such crime or which would establish his complicity in its commission or attempted commission. You can be guilty of soliciting someone who has already decided to commit the crime (promoting) Uncommunicated Solicitation 5.02(2) it is immaterial that the actor fails to communicate with the person he solicits to commit a crime if his conduct was designed to effect such communication

Solicitation Common Law The asking, enticing or counseling or another to commit a crime Mens Rea specific intent Actus Reus - completion - typically carries a lighter penalty than attempt - merges into the completed crime (solicitor can be punished at the level of the act the solicitee committed) The crime must be a serious felony or involve a breach of the peace.

Renunciation 5.02(3) - it is an affirmative defense that, after soliciting another person to commit a crime, persuaded him not to do so or otherwise prevented commission of the crime

Conspiracy
Common Law Partnership in criminal purpose Elements 1) mutual agreement or understanding 2) express or implied 3) between two or more persons 4) to commit a criminal act Mens Rea Dual Intent - intent to agree - intent to commit the target offense (intent meaning purpose under common law, unless purpose may be inferred by knowledge Lauria) - Does not merge with the substantive offense (you can be found guilty of both) generally complete upon formulation of the agreement; some jurisdiction do require an overt act (though mere preparation will generally suffice) Treated much less seriously and punished lower than the target offense Pinkerton Liability An actor is liable for the acts of a coconspirator when the act is within the scope of conspiracy and a natural or probable consequence of the conspiracy Corrupt Motive Doctrine (minority) Parties to a conspiracy are not guilty of conspiracy unless they have a guilty mind or a corrupt/wrongful motive (limited to malum prohibtum offenses) Whartons Rule when the definition of the crime requires two or more persons, the MPC 5.03 Criminal Conspiracy (1) Definition. A person is guilty of conspiracy with another person or persons to commit a crime if with the purpose of promoting or facilitating its commission he: (a) agrees with such other person or persons that they or one or more of them will engage in conduct that constitutes such crime or an attempt or solicitation to commit such crime; or (b)agrees to aid such other person or persons in the planning or commission of such crime. Conspiracy generally merges with the completed offense unless the conspiracy was broader than the completed offense Punished the same as the target offense Liability MPC rejects Pinkerton liability, but a person may still be liable for the acts of others through accomplice liability or other means Corrupt Motive Doctrine rejected by the MPC Whartons Rule MPC rejects Whartons rule

conspiracy cannot be charged separately (conspiracy is inherently included in its definition) - breaking down; no longer lets you off the hook, just requires merger of an attempted or completed offense intent cannot be inferred from mere knowledge cannot have a conspiracy to commit a strict liability crime because there is no intent

Unilateral vs. Bilateral Conspiracy Unilateral Conspiracy a person commits conspiracy when, with intent that an offense be committed, he agrees with another to the commission of that offense Bilateral Conspiracy any two or more persons conspire or agree together to do any illegal act; if one person is acquitted the other cannot be guilty because each coconspirator must fulfill every element - MPC subscribes to unilateral approach, and common law isnt there yet but is slowly gravitating away from the bilateral definition Types of Conspiracy People can be parties to the same conspiracy, even though they dont all know each other Wheel Conspiracy hub in the middle (central player), with spokes (supplying central player, contributing different skills/acts/supplies/functions); spokes may not even know each other exist Chain Conspiracy each link is necessary to the entire enterprise - chain conspiracies are much easier to prosecute than wheel conspiracies Multiplicity/MPC 5.03(3) At common law and under the MPC, one agreement equals one conspiracy; multiple objects can be part of one conspiracy. - key is the number of agreements Terminations of Conspiracy Evidence of overt acts of concealment is not sufficient to make the act of concealment part of the conspiracy The governments defeat of the conspiracys ultimate objective does not automatically terminate the conspiracy. Defenses to Conspiracy - Factual Impossibility no defense - Withdrawal no defense, because conspiracy is complete upon agreement o MPC recognizes voluntary withdrawal as a defense only if the defendant thwarts the success of the conspiracy - A person may limit his liability for subsequent acts of the conspiracy, including the target crime if he withdraws by an affirmative act giving notice to all members

of the conspiracy in time that they have the opportunity to abandon their plans

Accomplice Liability
Conspiracy v. Complicity Conspiracy need proof of agreement, but not proof of assistance Complicity need proof of assistance, but not proof of agreement Common Law Principal in the First Degree actor who commits the crime, even if through an innocent instrumentality Principal in the Second Degree actual or constructive aid, or counseling or encouragement of the commission, in its actual presence Accessory Before the Fact same as the principal in the second degree, but the crime does not take place in that persons presence Accessory After the Fact someone with knowledge of the crime provides assistance to hinder prosecution or apprehension Traditionally at common law, principal in the first degree had to be convicted before any other actors, but today accessories can be convicted w/ or w/o principals. Mens Rea Dual Intent 1) intent to assist the principal 2) intent that the offense actually be committed (most jurisdictions require purpose that the offense be committed knowledge is not sufficient) Natural and Probable Consequences Doctrine accomplice is liable for the target offense, plus other crimes that are natural and probable consequences thereof Exclusions from Liability - members of protected class - withdrawal: repudiation of encouragement, neutralizing assistance, notifying authorities, or MPC 2.06 Liability for Conduct of Another Complicity (1) A person is guilty of an offense if it is committed by his own conduct or by conduct of another person for which he is legally accountable, or both. (2) A person is legally accountable for the conduct of another person when: (a) acting with the kind of culpability that is sufficient for the commission of the offense, he cause an innocent or irresponsible person to engage in such conduct; or (c) he is an accomplice of such other person in the commission of the offense. (3) A person is an accomplice of another person in the commission of the offense, he (a) with the purpose of promoting or facilitating the commission of the offense, he (i) solicits such other person to commit it; or (ii) aids or agrees or attempts to aid such other person in planning or committing it; or (iii) having a legal duty to prevent the commission of the offense, fails to make a proper effort to do so (2) when causing a particular result is an element of an offense, an accomplice in the conduct causing such result is an accomplice in the commission of that offense, if he acts with the kind of culpability, if any, with respect to that result that is sufficient for the commission of the offense.

otherwise preventing the target offense

Mens Rea purpose of promoting or facilitating the commission of the offense Natural and Probable Consequences Doctrine rejected by MPC

mere presence can be enough of an actus reus for accomplice liability, even if you didnt have the opportunity to fulfill your intended function mere presence can be encouragement