CRIMINAL LAW Sum & Substance Professor Joshua Dressler

I. INTRODUCTORY POINTS A. Sources of Criminal Law. 1. Common Law. 2. Statutes Derived from Common Law. 3. Model Penal Code. B. Criminal Law vs. Civil Law. 1. Criminal. a. Defendant is punished. b. The criminal conviction itself says defendant is a moral wrongdoer. It is a condemnation by the community/ a morality play. 2. Civil. a. Defendant pays victim. b. Defendant is not morally stigmatized. C. Theories of Punishment. 1. Retribution. a. People should get what they deserve. b. Humans have free will. If they choose to do wrong, it is appropriate to punish them. c. Looks backwards. Only punishes to the extent of the wrongdoing. 2. Utilitarianism. a. All forms of pain are bad. Punishment is not good, but neither is crime. Punishment is proper if imposition of pain will reduce the likelihood of future crimes. b. Looks at people as moral calculators. c. Forms of utilitarianism.

i. General deterrence. ii. Specific deterrence. iii.Rehabilitation. D. Principle of Liability. 1. General Rule: We do not punish a person because he is bad, immoral, or dangerous, or even because he committed a wrongful act. We only punish if that act is also defined, in advance, as a crime. 2. Law cannot be vague. The law must be written in a sufficiently clear manner so that a reasonable law-abiding person can determine what is prohibited. E. Burden of Proof. 1. Beyond a Reasonable Doubt. This standard means that the fact-finder must have an abiding conviction of the defendants guilt. 2. The government must prove, beyond a reasonable doubt, every element of a crime. This is a constitutional requirement. II. COMPONENTS OF A CRIME A. Actus Reus. The physical part of the crime. B. Mens Rea. The mental part of the crime, or the state of mind of the defendant when he committed the crime. C. Five Elements of a Crime: Voluntary act or omission. Social harm. Mens reaA morally culpable state of mind. Actual causation. Proximate causation. 1. Voluntary Act or Omission. a. Common law voluntary act: A willed muscular action. b. Not every act must be voluntary. It is enough that the relevant conduct includes a voluntary act. c. Omission: Ordinarily, no punishment for failure to act. A duty to act arises when there is a: i. Duty required by statute. ii. Special status relationship.

iii. Contractual requirement to act. iv. Creation of a risk of harm to another. v. Once you act, you then stop, and it makes matters worse. 2. Social Harm. 3. Mens Rea. a. Mental state of actor at time he committed the actus reus. b. Defined in two ways: i. Person acts with requisite mens rea if he committed actus reus with a morally blameworthy state of mind. OR ii. With the particular wrongful state of mind set out in the definition of the offense. c. Strict liability. i. Mens rea is not required. ii, Typically applies to public welfare offenses. iii. Typically involves malum prohibitum conduct, very minor punishments, and conviction is not generally stigmatizing. iv. There is a strong presumption against strict liability. d. Model Penal Code mens rea terms. i. Purposely. ii. Knowingly. iii. Recklessly. iv. Negligently (criminal negligence). e. Specific intent vs. criminal intent. i. Some defenses are only available for specific intent crimes. ii. Specific intent: By definition, the crime requires

proof of some particular mens rea that goes beyond the social harm sought to be punished. All other offenses are general intent. f. Mistake of fact. i. In strict liability, mistake of fact is irrelevant. ii. For specific intent crimes, mistake of fact will exculpate defendant if mistake disproves specific intent element of the crime even if mistake is unreasonable. iii. For general intent crimes, the issue is whether mistake was blameworthy. Generally, a person will be acquitted if mistake of fact was a reasonable one, and convicted if an unreasonable one. iv. Moral wrong doctrine, occasionally used with general intent crimes: Look at facts through eyes of defendant. Then, ask, is what defendant thought he was doing considered by society to be a morally wrongful act? If yes, the defendant may be convicted, even if his mistake was reasonable. v. Model Penal Code does not distinguish between general and specific intent. In regard to mistakes of fact, it just asks, did the defendant have the required mens rea, set out in the statute? g. Mistake of law. i. Generally, ignorance of the law is no excuse, even if mistake was reasonable. ii. Exceptions: (a) Mistake reasonably based on an official mistaken interpretation of the law by a body or person responsible for interpreting the law. (b) Statute requires that defendant be aware of another law, and defendants lack of awareness of the other law negates an element of the offense requiring knowledge of that law. iii. Model Penal Code generally follows common law. 4. Actual Cause. But for test: But for the defendants voluntary act or omission, would the social harm have occurred when it did?

5. Proximate Cause. a. Look at all causal candidates that meet the but-for test, and decide which one(s) should be criminally charged. b. When analyzing proximate cause, draw a line between defendants voluntary act and social harm. Did anything happen between these events? If so, there is a proximate cause issue. c. Intervening factors: relevant factors in determining whether the intervening factor cuts off the defendants liability. i. Intended consequences doctrine. ii. Apparent safety doctrine. iii. Free will. d. Some courts, rather than applying any of the preceding doctrines will look at intervening causes and distinguish between two kinds: i. Responsive intervening causes. (a) A force that comes into existence as a response to the defendants conduct. (b) Normally, if responsive, law holds the initial party responsible, unless responsive force is totally bizarre. ii. Coincidental intervening cause. (a) A force is already in existence, but defendant put victim in position to be harmed. (b) If coincidental, the original wrongdoer is not responsible unless that consequence was reasonably foreseeable. III. DEFENSES There are two types of defenses: Justification: Actor did right thing, or at least did nothing wrong. Excuse: Actor did something wrong but should not be blamed because of an excusing condition. A. Justification Defenses. 1. Self-Defense.

a. In general terms, use of force must be necessary, force used must be proportional to threat, and the actor must have a reasonable belief as to these latter two issues. b. Common law. i. Justified in killing in self-defense if at the time the actor used deadly force that person reasonably believed that such force was necessary to combat imminent, unlawful deadly force. ii. Reasonable belief: Do not have to be right, but your belief must be reasonable. iii. Imminent threat: Threat is just about to happen/the idea is that you have no alternative. iv. Person who claims self-defense cannot be the initial aggressor, but aggressor may regain right of self-defense if he effectively communicates that he was no longer a threat. c. Model Penal Code: Pretty much same as common law, but permits a partial defense if the actors mistake is, for example, negligent. d. Battered woman issue: A jury may consider the battered womans prior experiences with the batterer in determining the reasonableness of her beliefs. 2. Defense of Third Parties. a. A person may use force against aggressor to extent person she is aiding could use self-defense herself. b. If the third party defense is wrong in his beliefs that other party needs assistance: most courts, following Model Penal Code, say reasonable belief is sufficient. A few courts deny defense. 3. Defense of Property/Habitation. a. Common law: You can never use deadly force to protect personal property. You may use deadly force under certain circumstances to protect the home (defense of habitation). b. Modern jurisdictions: The home dweller must reasonably believe that intruder intends to commit a forcible felony therein. 4. Law Enforcement Defenses. a. Crime prevention. i. It is justifiable for police to use force to prevent crimes.

ii. Deadly force may never be used to prevent a misdemeanor, but, at original common law, deadly force may be used to prevent any felony. iii. Today, deadly force is only appropriate if reasonably believed to be the only way to stop a forcible felony. b. To effectuate arrest. i. Common law: Could use deadly force in arrest or prevention of escape of any felon. ii. Supreme Court has ruled the Constitution prohibits excessive use of force in making an arrest or prevent flight after an arrest. Each case must be decided on its own facts. iii. In general, today, deadly force is limited to forcible felonies. 5. Necessity (Model Penal Code: Choice of Evils Defense). a. A residual defense. b. Elements: i. Reasonable belief of threat of imminent harm to self or others, including property. ii. Reasonable belief that committing harm is only way to prevent threatened harm. iii. Person must not be at fault for creating the emergency. iv. Harm caused must be the lesser evil (balancing of evils). v. Most commentators believe this defense is not available for murder. But Model Penal Code says it can be used for any crime, provided you meet all elements. (Also, MPC does not require imminency.) B. Excuse Defenses. 1. Duress. a. Threatened with imminent death or serious bodily injury. b. Reasonably believe that succumbing to threat is only way to save life. c. Defendant must not have been at fault for being in the situation. d. Not a defense for murder.

e. Model Penal Code: It may be an affirmative defense if the actor engaged in criminal conduct because she was coerced into it by use of or threat to use unlawful force against her person or the person of another, a threat a person of reasonable firmness in her situation would have been unable to resist. 2. Intoxication. a. Voluntary (Model Penal Code: Self-Induced). i. Not an excuse. ii. But, may serve as a mens rea defense for a specific intent crime. iii. Model Penal Code: Same general principles. But, if charged with crime of recklessness, which ordinarily requires awareness of risk, actor may be convicted of recklessness, even if he was unaware of the risk, if he would have been aware if sober. b. Involuntary. i. Ingested intoxicant innocently. ii. Forced to take intoxicant. iii. Unforeseeable, unintended response to prescribed medication. iv. Courts are sympathetic if one of the above circumstances explains intoxication, and will permit it to serve as a defense to general, as well as specific, intent crimes. v. Defense also permitted if, as a result of involuntary intoxication, the actor satisfies the states insanity definition. 3. Insanity. a. Four states have abolished the insanity defense. b. Insanity is an excuse because society wants to distinguish between the mad and the bad. c. If not guilty by reason of insanity, defendant is civilly committed to a mental institution. d. One can be mentally ill without being insane. e. Insanity tests.

i. McNaghten Rule. (a) Two prongs: (1) Defendant did not know nature and quality of act at time he did the act? (2) Defendant did not know he was doing something wrong. ii. Irresistible impulse test. (a) Involves lack of capacity to control ones actions.ion, (b) When applied, test is usually added as a third prong to MNaghten. iii. Model Penal Code: Defendant lacked substantial capacity to appreciate the [criminality] or [wrongfulness] of her conduct, or lacked substantial capacity to conform conduct to the law. iv. Product/Durham Test. (a) Used in only one state. (b) Defendant is not guilty if criminal conduct is the product of a mental illness. 4. Diminished capacity. a. Mens rea version: If defendant, because of abnormal mental condition, lacks specific intent to commit a specific intent crime, he will be acquitted. Some states do not recognize this defense, but MPC does. b. Partial responsibility version: To reduce the crime of murder to the lesser offense of manslaughter on the ground that person claiming defense is mentally ill, or has a low IQ, making him less culpable than a person who does not have that condition. Defense is recognized by a few jurisdictions and Model Penal Code. IV. HOMICIDE A. Early Common Law Murder. Murder is the killing of a human being by a human being (would include suicide). B. Modern Common Law. Murder is the killing of a human being by another human being. 1. Two Forms of Criminal Homicide: Murder and Manslaughter. 2. Actus Reus.

Issues are rare, but occur when issue is whether the victim is a human being: when the victim is a fetus or a person is brain dead but on artificial life support. 3. Year and a Day Rule. At common law, prosecution for criminal homicide is barred if the death occurs more than one year after the relevant assault occurred. 4. Mens Rea: Usually, it is the mens rea requirement that is at issue. C. Malice. 1. Aforethought. The word aforethought just reminds us that you cannot be convicted of malice afterthought. 2. Malice. Malice is covered by four human endangering states of mind: a. Intent to kill a human being (intend to kill or know with substantial certainty that death will result). b. Intent to inflict grievous bodily injury on victim, and victim dies. c. Acting with an abandoned and malignant heart, or a depraved heart, or wkith depraved indifference toward human life. Today, probably would refer to defendant as acting with extreme recklessness. d. Felony Murder Rule. i. Definition: Guilty if persons kills another person during commission or attempted commission of any felony. ii. Common Law. The common law also treats the escape from the felony as part of the res gestae, or body, of the crime. Thus, felony-murder rule applies. iii. Rule May Be Narrower. Some jurisdictions have narrowed the rule, for example, by requiring (i) that the felony be an inherently dangerous felony, or (ii) adding an independent felony limitation. D. Degrees of Murder. Many states have now divided murder into degrees. First degree involves the stiffest penalty. 1. First Degree Murder.

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a. Murder that is committed in a particular way, e.g., killing by poison or by lying in wait. b. Killing occurs during the commission of enumerated felonies. c. Killing is willful, deliberate, and premeditated. 2. Second Degree Murder. All other kinds of murder (as defined by common law) are second degree murder. E. Model Penal Code. 1. No Malice Aforethought Requirement, No Degrees of Murder. 2. Definition: A person is guilty of murder if she kills another person purposely, knowingly, or recklessly in a manner manifesting extreme indifference to the value of human life. 3. There is no felony-murder rule, but if a death occurs during the commission of an enumerated felony, this creates a rebuttable presumption of recklessness. F. Manslaughter. 1. Common Law. a. An unlawful killing by a human being of another human being without malice aforethought. b. Divided into voluntary and involuntary. c. Heat of passion (voluntary manslaughter): Killed because of adequate provocation, during heat of passion, and heat of passion occurred before the actor had reasonable opportunity to cool down. Words alone never constitute adequate provocation. d. Involuntary Manslaughter. i. The commission of a lawful act that might produce death and was done in a criminally negligent manner is one form of involuntary manslaughter. ii. Misdemeanor manslaughter/unlawful act: An unintended homicide that occurs during the commission of an unlawful act that does not amount to a felony is also involuntary manslaughter. 2. Model Penal Code version of manslaughter.

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a. If a killing that would otherwise constitute murder occurs as a result of extreme mental or emotional disturbance for which there is a reasonable explanation or excuse, the defendant will be guilty of manslaughter. Provocation, per se, is not required. Diminished capacity also qualifies. b. A reckless, but not extremely reckless killing, constitutes manslaughter. A negligent killing constitutes a lesser crime of negligent homicide. V. RAPE A. Common Law. 1. Definition: Sexual intercourse by male with female not his wife without her consent. 2. Forcible rape requires proof of both non-consent by the female and use of force by the male. The amount of force required to constitute forcible rape was linked to a resistance requirement. 3. Resistance Requirement: If the male used force likely to cause death or serious bodily injury, a female did not have to resist. If lesser force was used or threatened by the male, the female had to resist to the utmost in order for crime to constitute rape. In recent years, most states have either abandoned the resistance requirement or only require reasonable resistance. 4. Mens rea: A reasonable mistake of fact regarding the females lack of consent is a defense; an unreasonable mistake is not a defense. B. Modern Law. 1. Some states no longer require any more force than is involved in the act of sexual penetration itself. 2. A few states now provide that the person seeking intercourse must obtain affirmative permission, freely given, for sexual intercourse. Thus, not only does no prove rape, but absence of yes also does. VI. PROPERTY OFFENSES A. Larceny. 1. Definition: Trespassory taking and carrying away of the personal property of another with intent to steal it (intent to permanently deprive the other of the property). 2. Elements: a. Trespass: Wrongful (non-consensual).

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b. Taking: Interference with possessory rights, not ownership rights. One can potentially have custody but not possession. It is the act of taking possession that satisfies this element. i. A person may only have custody of property if the possessor remains nearby and provides the other person with only limited control of the property. ii. An employer retains possession of property she provides the employee for use in the job. The employee has mere custody. iii. A bailee, who takes a container from a bailor, has possession of the container, but mere custody of its contents. If the bailee breaks bulk (opens the container), the bailee takes possession of the contents. c. Carrying away: At common law, a carrying away act of even the most trivial amount (e.g., one inch) is sufficient to meet this element. d. Personal property: Real property can become personal property, if it is severed from the land and remains in that condition for a period of time. e. Of another: As the issue is one of possession, an owner can be guilty of larceny if he wrongfully takes possession of property he owns from someone with lawful right to possession. f. With intent to steal (this is a specific intent crime). At common law, defendant must intend to permanently deprive the other person of the property. If defendant trespassorily take property intending to return it but later decides to keep it, the law considers this to be a new trespassory taking, under the continuing trespass doctrine. 3. Larceny by Trick. When a person misrepresents his motives to get possession of the property of another by fraudulently claiming he will return it , consent is vitiated, and the taking is deemed trespasssory in nature. The wrongdoer is guilty of larceny by trick. B. Embezzlement. A person who obtains lawful possession of personal property of another, typically by entrustment, who then converts the property to his own use is guilty of embezzlement. C. False Pretenses. This offense, unlike larceny and embezzlement, focuses on the issue transfer of title, rather than taking of possession. Here, the person who owns the property gives the defendant both possession and title to the property, based on the defendants misrepresentations.

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VII. INCHOATE OFFENSES A. Attempt. 1. Mens Rea. Must have specific intent to commit the target offense. 2. Actus Reus: How Far Must Actor Go? a. Different tests at common law. i. Physical proximity test. Actor must have apparent power to complete the crime immediately. ii. Dangerous proximity test. Consider how close actor physically is to committing the crime, how close actor is temporally, and how serious the crime is. The more serious the crime, the less physically and temporally close actor has to be. iii. Equivocality. Looking at actors conduct alone, at what point can you unequivocally tell what he is about to do? iv. Probable desistance test. When would a normal citizen think better of his actions and desist? When has an ordinary person gone past the point of no return? b. Model Penal Code. An actor is guilty of attempt, assuming the requisite mens rea, if she takes a substantial step in direction of committing the crime. 3. Special Defenses (Normal Defenses Also Apply). a. Impossibility. i. Factual vs. legal impossibility. ii. At common law, legal impossibility is a defense, factual is not a defense. iii. Today, many states and the Model Penal Code have abolished this defense in its entirety.

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b. Abandonment/renunciation. i. Not a common law defense. ii. Model Penal Code: If actor crosses the line of attempt, but has not yet been arrested, if he then voluntarily and totally abandons his criminal purpose, then he has a defense. B. Criminal Solicitation. If an actor requests, encourages, or asks another to commit a crime with the intention that the other person perpetrate crime, he is guilty of solicitation the moment he makes the request. C. Conspiracy. 1. Common Law. a. An agreement between two or more persons to commit an unlawful act. The moment there is a meeting of the minds, the common law crime of conspiracy has occurred. b. Plurality requirement: Two or more persons must have the requisite mens rea (e.g., if one of the two is really an undercover officer feigning agreement, no conspiracy). The Model Penal Code rejects this requirement. 2. Modern Jurisdictions. Many states and the Model Penal Code require an overt act towards committing the crime before a conspiracy is said to have occurred. However, the overt act, does not have to be enough of an act to raise it to an attempt level. 3. Whartons Rule. There can be no conspiracy if the underlying crime by definition requires two people to commit the offense (e.g., selling drugs, committing adultery), unless more persons are involved in the conspiracy than is required by definition of the offense. D. Complicity. Under some circumstances, an actor is accountable for the actions of another because of a connection to the crime. 1. Accomplice Liability. Complicity normally comes up as an issue of accomplice liability. There is no crime, as such, of aiding and abetting. Rather, the accomplice is convicted of the offense committed by the primary party. It is said that the accomplice derives liability from the perpetrator. a. Common law terminology.

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i. Principal in the first degree is the perpetrator of the crime. ii. Principal in the second degree assists in the crime and is at the scene, but does not actually commit the crime. iii, Accessory before the fact assists in the crime, but is not at the scene of the crime. b. Actus reus (the alternative ways one becomes an accomplice). i. The actor solicits another to commit a crime, provides an instrumentality used in the crime, encourages another to commit a crime, or provides services used in offense, etc. ii. An actor can be an accomplice even if it is shown that the perpetrator would have committed the crime without his help. c. Mens rea. i. Two states of mind required: intent to do acts that constitute the assistance; and the intent that this assistance result in the commission of the offense. ii. Most jurisdictions (and Model Penal Code) require proof that the secondary party had the purpose (conscious objective) that the crime occur; mere knowledge that the crime will occur is not enough. iii. With crimes of recklessness or negligence, most courts and the Model Penal Code provide that a secondary party is an accomplice if he has the mens rea required in the definition of the offense. iv. Natural and probable consequences doctrine: An accomplice in one crime is guilty of other crimes committed by the perpetrator if the latter crimes are foreseeable. 2. Significance of Derivitive Liability a. An actor cannot be an accomplice if there is no crime to derive from. b. Therefore, an actor cannot be an accomplice if the principal committed no crime or has a valid justification defense. c. However, an actor may be an accomplice even if the principal has a valid excuse defense.

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