CHAPTER ONE-STATUTES, CRIMES, PROOF PROCESSES, AND PURPOSES

Keeler v. Superior Court [D beat Mrs. Keeler in order to stomp out the baby] p.3
1. 2. 3. 4. 5. 6. 7. [Rule of lenity] it is the policy of this state to construe a penal statute as favorably to the defendant as its language and the circumstances of its application may reasonably permit Majority approach: formalist. It extracted the elements set forth in the statute and compared the facts to those elements in a relatively rigorous manner. Courts cannot create an offense by enlarging a statute, by inserting or deleting words, or by giving the terms used false or unusual meaning Fair warning is essential to due process Terms of a penal statute creating a new offense must be sufficiently explicit to inform those who are subject to it, that conduct on their part will render them liable to its penalties When a new statute is applied retrospectively to make punishable an act that wasnt punishable at the time, D has not been given due process-ex post facto laws. Dissent = [fair import] all its provisions are to be construed according to the fair import of their terms, with a view to effect is objects and to promote justice. Statute says human being, not one who is born alive. Can D really claim surprise that a 5-lb, 18-in, 34 wk-old living child is considered a human being? The majority ignore significant common law precedents, frustrate the express intent of the legislature, and defy reason, logic and common sense Rule of lenity (+) It is the policy to construe a penal statute as favorable to the defendant as its language and the circumstances of its application may reasonably permit Fair import- (-) Reading a statute in accordance with its plain or common meaning Interpret crime definitions according to the fair import of their terms, with a view to effect their objects and promote justice AKA instrumentalism or functionalism

8.

y y

United States v. Zandi [Zandi [went to pick up a package sent by his brother in Pakistan and it was
inspected and drugs were found] p. 10 1. [dealing with actus reus] the appellants had constructive possession of the drugs because they possessed the shipping document which authorized the holder thereof to gain receipt of the goods 2. Ds sought reversals of their convictions for possession of opium with intent to distribute bc the government failed to prove that they possessed the opium and that they had knowledge that opium was concealed within a package labeled gift cloth. Mens rea element not proven? 3. [w/in case] United States v. Martorana = FBI seized the van before defendant took possession of it. Court stated that he acquired constructive possession of the drugs in the van when he acquired actual possession of the key to the van and to the padlock. 4. Knowledge was proved circumstantially [Pakistan, money sent, mysterious telephone calls, exculpatory statements] NOTE: Jury must decide Ds guilt beyond a reasonable doubt, in an appellate court, the judge must review the evidence in the light most favorable to the government and must affirm whether any rational trier of fact could have found proof beyond a reasonable doubt. There are four general reasons for punishment: p. 21 Utilitarian theory forward looking, to reduce crime in the future. 1. General deterrence-punish a D in order to deter others from committing a crime. Specific deterrence-punish D to discourage him from committing crimes in the future-teach them a lesson.

2. Incapacitation-lock somebody up to prevent them from committing further crimes, physically stop them. 3. Rehabilitation-treat D, teach him so that he will no longer commit crimes in the future Kantian/Retributive theory punish someone because they deserve it. 1. Determined by harm and culpability. 2. Harm-what were the results of the bad conduct? Was there a bad result? Greater the harm, greater the result. 3.Culpability-choices! What decision did D make? Did he make a bad decision? Purposeful over accidental. Foolish over unexpected. 4.Just deserts.

United States v. Blarek, p. 22 [Ds convicted by jury of conspiracy to commit racketeering and money
laundering, based on their laundering for Columbian drug kingpin]. Judge used by-the-numbers Guideline Sentence along with four core considerations above.

CHAPTER TWO-HOMICIDE
Malice aforethought comes from the traditional definition of murder. Pennsylvania Pattern
y First degree murder [malice aforethought, and deliberate, premeditated killing] Second degree murder [malice aforethought only] Voluntary manslaughter [passion killing] Involuntary manslaughter [misdemeanor-manslaughter or gross negligence] Vehicular manslaughter [grossly negligent unlawful driving, intoxication, etc.] y

Model Penal Code

Abandons ancient formulas (malice aforethought and premeditation-deliberation) Murder [causing death intentionally or knowingly-or with recklessness and extreme indifference] Manslaughter [which includes what would be both involuntary and involuntary manslaughter] Negligent homicide y

State Pattern Influence by MPC

Murder [only one degree , but three ways to commit it: intentional or knowing killings, killing with intent to cause serious bodily injury, and felony murder] Murder with sentence-range reduction [passion killing, akin to voluntary manslaughter but not a separate offense] Involuntary manslaughter [reckless killing] criminally negligent homicide (gross negligence)]

y y y

y y

[Common law homicide crimes]

Murder is causing death of another person with malice aforethought. Inferred malice: intent to cause serious injury, even if intention was not to kill. There are two ways to figure out mental state: 1. From Ds conduct (if ambiguous, talk about both and words from Ds mouth). 2. Transferred intent-intend to kill A but miss and kill B. Take the intent for A and transfer to B. Intend to kill A but injure B, not attempted murder. Dont transfer intent in an attempt situation, must be a completed crime.

[Pennsylvania Pattern] p. 35 [FIRST AND SECOND-DEGREE MURDER]

Malice aforethought-ONLY in PA pattern and is a misnomer/term of art because it does not actually require malice aforethought. States often try to define it in their statutes.

Express when there is manifested a deliberate intention unlawfully to take away the life of a fellow creature. Intentional. Implied when no considerable provocation appears, or when the circumstances attending the killing how an abandoned and malignant heart. So malice aforethought can be found in unintended killings too [depraved heart malice, assault with intent to cause serious bodily injury, resisting unlawful arrest in such a way to kill arresting officer-even unintentionally, felony murder]. [DEPRAVED HEART MURDER] p. 58 Malice can be implied if the D unintentionally killed the victim but acted with a depraved heart, seconddegree murder. If Ds recklessness is so substantial that it exhibits an extreme indifference to human life, then it may qualify as depraved heart murder in the second-degree.

Commonwealth v. Malone [Russian Roulette, D suggested to the decedent that they play Russian Poker. D placed the revolver against the right side of the victims head and pulled the trigger three times. Third pull resulted in a fatal wound]. p. 58 1. D did not expect for gun to go off. He had no intention of harming the victim. 2. D was found guilty of murder in the second degree because there was an evil design in general, the dictate of a wicked, depraved and malignant heart. 3. When an individual commits an act of gross recklessness for which he must reasonably anticipate that death to another is likely to result, he exhibits that wickedness of disposition, hardness of heart, cruelty, recklessness of consequences, and a mind regardless of social duty which proved that there was at that time in him the state or frame of mind termed malice. 4. Even though the victims death might have been unintended and accidental, the evidence showed that the act that caused the death was not accidental. United States v. Fleming [D convicted of second-degree depraved heart murder for driving 70-100 mph in a 45 mph zone and drove in wrong lane to avoid traffic and losing control. He struck another car and killed driver. BAC was .315%]. p. 60 1. D claimed this is not murder because there was no malice aforethought. 2. Proof of malice does not require a showing that the accused harbored hatred against victim, neither does it require proof of intent to kill or injure. 3. Malice may be established by evidence of conduct that is reckless and wanton and a gross deviation from a reasonable standard of care, of such a nature that a jury is warranted in inferring that D was aware of a serious risk of death or serious bodily injury. 4. In the average drunk driving homicide, there is no proof that the driver has acted while intoxicated with purpose of wantonly and intentionally putting lives of others in danger. In this case, danger did not arise only by Ds drunk driving. He also drove in a manner that could be taken to indicate depraved disregard of human life.
[FIRST AND SECOND DEGREE MURDER]

Commonwealth v. Carroll [Became angry about what she was saying about him and his kids and
remembered the gun. Shot her in the head twice after five minutes from her last remark. Wrapped her in a blanket and places her near a dump] p. 36 1. Brief amount of time or long space of time is immaterial if the killing was in fact intentional, willful, deliberate and premeditated. 2. Defendant remembered the gun, deliberately took it down, and deliberately fired two shots into the head of his sleeping wife.

People v. Anderson [blood in almost every room, over 60 wounds and blood only found on his shorts
and socks] p. 40. Three basic categories

(1) Facts about how and what defendant did prior to the actual killing which show that the defendant was engaged in activity directed toward, and explicable as intended to result in, the killing-what may be characterized as planning activity. y (2) Facts about the defendants prior relationship and/or conduct with the victim from which the jury could reasonably infer a motive to kill the victim, which inference of motive, together with facts of type (1) or (3), would in turn support an inference that the killing was the result of a pre-existing reflection and careful though and weighing of considerations rather than mere unconsidered or rash impulse hastily executed y (3) Facts about the nature of the killing from which the jury could infer that the manner of killing was so particular and exacting that the defendant must have intentionally killed according to a preconceived design to take his victims life in a particular way for a reason which the jury can reasonably infer from the facts of type (1) or (2). No (1) or (2), and (3) may be a random violent, indiscriminate attack. The brutality of a killing cannot in itself support a finding that the killer acted with premeditation and deliberation. Burden was on prosecution to prove that it was sexually motivated, or that it was first-degree murder. Lack of evidence! y

People v. Perez [multiple stab wounds to a pregnant woman] p. 46

y y The Anderson factors are not a but-for to finding first degree premeditated murder, nor are they exclusive. In this case, was first-degree murder but was reversed following Anderson and reduced to seconddegree murder. Anderson test was too restrictive Still applies Anderson (doesnt overrule it), just interprets it differently. Tricky thing about precedent it means what later courts say it means. S. Ct. held that the evidence was sufficient to support finding of PREMEDITATION AND DELIBERATION (and thus a conviction of 1st degree murder): [1] planning activity=did not park car in driveway, [2] motive=reasonable to infer D thought it was necessary to kill victim, [3] manner of killing=D went into kitchen to find another knife after steak knife broke, similar to reloading a gun. We are not permitted to reverse the judgment if the circumstances reasonably justify those found by the jury

People v. Conley [Suggested charge to a jury in a CA homicide case] p.49

Not everyone has a grasp on homicide levels/criminal law system. Inconsistent instructions are problematic, confusing and dense.

[VOLUNTARY MANSLAUGHTER] p. 52. Even if malice aforethought is present (because the killing is intentional), the PA pattern reduces the grade to voluntary manslaughter for certain killings upon heat of passion. If there is evidence from which a juror could reasonably infer voluntary manslaughter, the judge must submit it, even if the judge thinks it is improbable.
Factors that determine if a killing is murder or passion killing: 1. Adequate cause, or reasonable provocation: sudden quarrels or heat of passion are factors here. 2. Severity of passion: Reasonable person test is used here. Severity of mental disturbance must be such that it would interfere with cool reflection. Would a reasonable persons ability to reflect coolly been sufficiently reduced? 3. Timing: Must be committed on the spot! 4. The Victim: Some courts require that victim be involved with creating the passion. 5. What entitled D to receive v.m. jury instruction at the trial level?

6. 7.

He assaulted her grabbed her breast and put his hand over her mouth causing her to not be able to breathe.  He had been drinking and doing drugs.  She had been gang raped at night previously and was scared.  Threatened to beat her and grabbed the gun. A person commits manslaughter if he/she causes the death of another person under circumstances that would constitute murder in the second degreeEXCEPT THAT she caused the death under the influence of sudden passion arising from adequate cause. S.Ct. stated D could not meet this standard because all the events she used to support her voluntary manslaughter claim occurred some time before the actual shooting, giving her time to cool down. y Evidence was minimally sufficient to inject the issue of sudden passion based on adequate cause. Up to the jury to make a decision.

State v. Avery [D was convicted of second-degree murder and appealed claiming that court erred in refusing to instruct jury on voluntary manslaughter]. p. 53 1. There was evidence that shooting was intentional but arose out of sudden passion based on adequate cause. New trial ordered. People v. Page [D convicted of murder of man and requested voluntary manslaughter instruction for same-sex sexual advances towards him. Trial judge refused]. P. 57 1. D argued that in two other cases, the Ds received jury instructions for voluntary manslaughter in cases similar to his. No, one was because of a struggle that ensued and the question of whether the evidence was sufficient to entitle the D to a voluntary manslaughter instruction was not in issue. 2. What amount of physical contact or apprehension of it should be required to raise v.m. in these cases? Or, should a mere sexual advance be enough? [INVOLUNTARY MANSLAUGHTER + CRIMINAL NEGLIGENCE] p. 63
Involuntary manslaughter. This is simply a reckless (or criminally negligent) homicide. Hard to draw the line between this and depraved heart murder. Unintentional killings less serious than depraved-heart murder can be I.M. Recklessness or its equivalent is the standard for I.M. Awareness of an unacceptable risk to human life.

Commonwealth v. Feinberg [D sold Sterno to people that he knew were likely to extract the ethanol
and drink it, and he knew that death was likely. 1. D was aware, or should have been aware, that Sterno he was selling was toxic if consumed. 2. To sustain involuntary manslaughter charge, must prove that defendant acted in a rash or reckless manner. Conduct must be such a departure from behavior of ordinary & prudent man as to evidence a disregard of human life. 3. He was not so reckless that he may as well have intended to kill them.

Robinson v. Commonwealth [D jumped a 41 inch gap in a bridge while police were pursuing him and a police officer fell and died]. KY calls involuntary manslaughter in the second degree, what we usually call reckless homicide and calls reckless homicide what we would usually call criminal negligent homicide.
1. D charged with involuntary manslaughter, reckless homicide.

y Deviation from a reasonable persons actions. y Wantonly causing death y You know of the risk, you do it anyway. 2. Reckless homicide was a better fit here than criminal negligence because: y D was fleeing from the police, he had to jump over this huge gap. y D was conscious of the risk he was taking. y A substantial and unjustifiable risk of death. y D had to jump over gap he was definitely aware of it. Criminal negligence. Depends on Ds conscious mental state. Lack of awareness in a situation where D should be aware.

[MPC Pattern] p. 70
]MURDER] MPC only has one kind of murder but differences in severity and mental state are important too. They are taken into account at sentencing. Purposefully or knowingly causing the death of another human being. NO malice! NO premeditation or deliberation! NO second-degree murder! Replaces depraved heart murder with recklessness under condition of extreme indifferent to human life. [MANSLAUGHTER] MPC only has one category of manslaughter and can be committed by (1) a reckless killing or (2) by a homicide committed under the influence of extreme mental or emotional disturbance for there is reasonable explanation or excuse. Disturbance need not be sudden, and it is not hemmed in by some of the historic limits on cooling time or provocation. [NEGLIGENT HOMICIDE] States have used MPC as a basis for drafting their homicidal offenses. p. 72. TX, for example, kept most things the same. One degree of murder, only one degree of manslaughter (no reckless or depraved-heart murder), and criminally negligent homicide. But, TX also does not include involuntary manslaughter (passion-killings). They are labeled as murder but after the murder conviction, a D can raise the passion-killing issue in a separate sentencing hearing. Burden of proof is on D by preponderance of the evidence.

State v. Rivera [Two Ds stabbed and shot victim until he died. One D convicted of murder and said
evidence was insufficient to prove beyond a reasonable doubt that he murdered victim]. p. 75. 1. Murder conviction under theories of (1) intentionally or knowingly causing death and (2) not intending to cause death, but intending to cause serious bodily injury while committing a clearly dangerous act that causes death. 2. Stab wounds alone would not have killed victim. Whether heroic medical treatment would have saved victims life will never be known because at about that time Ds brother was shooting victim. It isnt necessary for court to decide whether there was a chance that proper medical treatment could save victims life if he had not been shot. Does not break the causal chain of events. 3. Conspiracy rule = even if his brothers gun was the sole cause of the death, Tim also did enough to remain labile for the homicide. 4. Intent to cause serious bodily injury, with Ds action s being sufficient alone.

State v. Martinez [D found guilty of murder and appealed for not being granted a manslaughter instruction. D killed victim because he tried to molest him]. p. 78 1. Focuses on a lesser-included offense, one that is automatically proved by evidence of a higher offense. 2. A charge on a lesser-included offense must be given if lesser-included offense is included within proof necessary to establish the charged offense and there is some evidence in the record that would permit a jury rationally to find that if D is guilty, he is guilty only of the lesser offense. 3. For manslaughter, D must have recklessly caused the death of the victim. 4. D claimed self-defense. You cannot claim self-defense and manslaughter. Self-defense=intending to cause serious bodily injury. One cannot accidentally or recklessly act in self-defense. Manslaughter not offered. 5. For lesser-included offense instructions, you need to look at the facts. Do the facts support an instruction on a lesser offense? If there is evidence that all the elements of the lesser offense are present, the defendant has the right to have the jury instructed on the lesser offense. [FELONY MURDER] p. 82
COMMON LAW FELONY MURDER. Common law imputed malice to a killing during a felony. NO FELONY MURDER UNDER THE MPC! The MPC does contain a presumption of extreme indifference, sufficient for murder, in the case of some violent felonies, but it preserves the question as a jury issue. Totality of the circumstances approach
o The defendants conduct must have been dangerous not merely cause the felony was abstractly dangerous, but cause the defendant engaged in a dangerous act in this individual case o

Requiring an inherently dangerous felony in the abstract

Insist on viewing the felony in the abstract, without considering the defendants conduct in the individual case One can posses such a weapon without harming or even endangering anyone

Inherently dangerous felonies

o o

State can make certain felonies be inherently dangerous California and drive by shootings

Use of felony murder is limited! (a) Inherently dangerous felony approach: some states require the underlying felony to be dangerous. (b) Dangerous act approach: need independent proof that this D performed an act dangerous to human life during commission of the felony. (c) Merger: some states exclude lesser degrees of homicide as predicate felonies, such as voluntary or involuntary manslaughter. So, lesser homicides cannot serve as predicate felonies. Felony must be separate from killing itself. (d) Causation: need proof that felony or Ds conduct caused the death.

State v. Anderson [D brought a gun to friends house and knew it was loaded. He pointed it at victims head and the gun discharged, killing victim. Prior to incident, D had been convicted of riot, a felony. So, it was a felony for him to have a gun]. p. 84. 1. His felony murder charge was dismissed and State said that felon in possession and possessions of a firearm are both inherently dangerous offenses. They are sufficient predicate offenses for felony murder. Totality of the circumstances approach. 2. The felony murder statute applied to all felonies except criminal sexual conduct in the first or second degree with force or violence. 3. Whether felon in possession or possession of a stolen firearm are inherently dangerous in abstract is irrelevant under the totality of the circumstances test. D pointing a stockless, loaded gun at victims head from a few feet away was clearly inherently dangerous. 4. Comparison to cocaine case on p. 86. Very different! Can sell cocaine without hurting anyone, this was dangerous. 5. Different from being viewed in the abstract, People v. Satchell (p. 88).

People v. Hansen [How great must the risk of death be? D committed a drive-by shooting of the apartment for revenge. One bullet struck a 13-year-old girl]. p. 88. 1. Felony murder conviction upheld because look at felony in the abstract. In firing a gun at such a structure, there always will exist a significant likelihood that an occupant will be present. Viewed in the abstract, it poses a great risk or high probability of death!
MERGER DOCTRINE: 1. Prevents lesser homicides from serving as predicate felonies or every unlawful killing would become murder 2. For related reasons, some jurisdictions do not permit assaults to become the basis of felony murder CA says that all felonious assaults "merge" into the resulting homicide and therefore may not serve as a predicate for felony murder. 3. Must be an independent felonious purpose to be felony murder! People v. Ireland, Original merger doctrine: Any felony that is an "integral part of," and "included in fact within," the resulting homicide may not serve as a predicate for felony murder. p. 90 People v. Hansen: firing into inhabited dwelling house does not merge into homicide because applying felony-murder rule in such cases has deterrent effect. The merger rule is inapplicable when D has exhibited a collateral and independent felonious design that is separate from resulting homicide.

Commonwealth v. Kilburn [killer brandished the gun and ordered the men around and then shot him].
p. 90. 1. Essentially breaks the act into two pieces two assaults. First assault took place right when the victim opened the door. Second assault was so separate that there was an independent felony to which the merger rule does not apply. 2. Because of MERGER, felony murder rule cannot apply to assault. 3. Independent Felonious Attempt fairly strained effort by courts to get around the merger rule in situations where it strikes them as unjust. 4. Must be two separate acts to be felony murder. Here, D went in, assaulted victim, then stopped and told other guy to leave. D came back and killed the guy. So, felony murder! Assault, then shooting.

[DEATH OF CO-FELONS] p. 92.

Some states hold co-felons responsible for death of the other. Cone of violence emanates from felonies like robbery: an every-expanding likelihood of death as the felony progresses. ***PROXIMATE CAUSATION V. AGENCY APPROACH*** Agency approach holds D liable only for killings committed by his co-felon, and not for a killing of his cofelon by a police officer. Proximate causation might hold D liable for death of co-felon on the ground that it is foreseeable result of the cone of violence set in motion by Ds participation in underlying felony.

State v. Sophophone [Ds co-felon is killed by police officer during flight from an aggravated
burglary]. p. 92. 1. Agency approach D is not held liable for death of the co-felon. 2. Does not provide for an accomplice/aiding and abetting liability. This is simply stating that the police officer is not part of this crime and there is no way to pull him in as one of the agents of Sophophone.

CHAPTER THREE-ELEMENTS OF CRIMES: MENS REA AND ACTUS REUS

Statute. Achieves proper definition of crime by listing elements of the offense. Policy decision. 1. Prosecution must target each specific element and must rigorously establish each element according to the highest standard recognized by the law, proof without a reasonable doubt. 2. Defense will look for the weakest link. Proving perpetrators identity is difficult in many cases, so is mens rea, or intent. 3. Ds knowledge cannot be used as proof of any element because of the Fifth Amendment. 4. When a D.A. decides which charges to pursue, one of the key factors is whether there is sufficient proof to meet prosecutors burden to prove each element beyond a reasonable doubt. ACTUS REUS is the physical part (all physical elements-may include all required circumstances, results and causation, as well as act itself) of a crime and describes what an offender must do. The act must also have been voluntary, or if they have failed to act when they have a duty to do so, an omission. a. Circumstances: many crimes occur only in a specifically described situation. b. Harm or Result: many criminal laws require a specific harm to have occurred before a statute applies. Sometimes the harm element is actually only the creation of a risk of harm. c. Causation: Sometimes a statute requires that a D cause the harm. d. Mens Rea: Mental requirement that is a loose characterization [When is an act not voluntary?] When are they not voluntary? a. When movement is not product of actors volition. Someone else moves the actor. b. Sleepwalking. c. Reflexes or convulsions and seizures. If an actor knows about seizures and does not take his medicine, he is still guilty if he kills someone in a car accident! The seizure is not the guilty act. Getting in the car and driving in a bad mental state is the crime. Must always look back further! Common law a. One class of these called duties imposed by status, because some statuses, e.g. of parent to child, spouse to spouse, masters to servants, impose them. But others dont. b. Another category is if you voluntarily assume care of someone and stop others helping them/ and secluded them so others prevented from rendering aid. Hypo? c. A third is the liability of property owners to take care to protect safety of people on their premises. d. A fourth is creation of risk/causing harm. [Case dealing with statutory interpretation] State v. Sowry [voluntary search arrested for disorderly conduct and asked if he had drugs and said no and then they were found during a detailed search] p. 122 The persons liability is based on conduct that includes either a voluntary act, or an omission to perform an act or duty that the person is capable of performing a. Any act that is not the product of the actors conscious determination is not a voluntary act b. Sowry was arrested by police before he was brought to jail, and he was brought to jail under arrest. A persons capacity or ability to exercise is implicit in the measure of personal autonomy that a voluntary act involves c. The law will not punish a guilty mind alone. He was under arrest and was brought into detention facility by police, so not voluntary. [Omissions as actus reus] p. 124 When actus reus punishes failure to do something, the failure usually must breach a legal duty to perform that act. 1. MPC, A person is not guilty of an offense unless his liability is based on conduct that includes a voluntary act or the omission to perform an act of which he is physically capable. Our law does not require a duty to act except,

Statutory duty: a legal duty created by statute like Good Samaritan statutes, tax returns requiring people to file tax returns, and duties imposed on professionals to report suspected child abuse (teachers, doctors, etc). 2. Contractual duty: can be explicit or implicit agreements with babysitters, doctors, lifeguards. 3. Status relationship duty/common law duty: there are only two, duty to spouses and parentschildren. 4. Voluntary assumption of care: if you begin aid, you may be obligated to continue. You could be leaving them in a worse condition than before. 5. Duty created by creation of peril: if you caused the problem, you may have a duty to help, even if you didnt do anything wrong. A failure to act in the above situations may be basis of criminal responsibility. 1. [EXCEPTIONS] Knowledge of the facts giving rise to the duty (if you dont know that its your child drowning) and you need the ability to help (Dont have to jump in the pool to save your child if you cannot swim but you are still required to call 911, a lifeguard, or throw a lifesaver in).

State v. Martinez [a two year old died from wounds while in care of her mother and her mothers boyfriend and both were convicted of manslaughter for failing to provide necessary medical care for the child]. p. 125 1. Mother violated state statute requiring parents to prove to the best of their abilities reasonable necessary and available medical services. 2. Boyfriend violated a duty that the court infers from common law imposing duty on person having care or custody of a child not to willfully permit childs person or health to be injured or placed in a situation where such health could be endangered.
NOTE: For liability based on an act, the criminal law or some other law actually penalizes doing the act; it does not penalize the failure to do the act. State v. Miranda [lives with his girlfriend and took care of her children. Considered himself to be their stepfather and represented himself as such at the hospital. Victim was found to have numerous injuries] p. 127. a. We conclude that, based on the trial courts findings that the defendant has established a family-like relationship with the mother and her two children, that he had voluntarily assumed responsibility for the care and welfare of both children, and that he had considered himself the victims stepfather, there existed a common law duty to protect the victim from her mothers abuse. b. The state argues that this case falls within certain relationship to another and voluntarily assumed the care of another, or some combination thereof. c. Statutes were not at issue with common law, bottom of p. 128. d. Fair import. [Possession as actus reus] p. 133 o Can be punished for just possession of an item [drug/weapon] o Must know about the contraband and not get rid of it o Can be actual or constructive possession [Zandi] o When a drug possession statute does not itself require that the D know about his possession, some courts have created a common law unwitting defense to drug possession for people who did not know that they were possessing the drug. [Status crimes and actus reus] p. 134 In Robinson, statute stated, be addicted to the use of narcotics was a criminal offense. In Powell, statute stated, whoever shall get drunk or be found in a state of intoxication in any public place...shall be fined not exceeding one hundred dollars. NOTE: Difference between a status (Robinson) and condition (Powell).

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Being addicted to narcotics... Robinson v. California [police examined arms and saw scar tissue and discoloration] Instruction: D could be convicted...if jury agree
that either he was of the status of being addicted ot had committed the act denounced by statute[use of narcotics]. STATUS CRIME. Court recognized that narcotics addiction is an illness. Indeed, it is an illness that may be contracted innocently or involuntarily. We hold that a state law, which imprisons a person thus afflicted as a criminal, inflicts a cruel and unusual punishment in violation for the fourteenth amendment.

v.

Drunk in public place

Powell v. Texas [arrested after being found in a state of

intoxication in a public area] TX has not sought to punish a mere status, as CA did in Robinson,
nor has it attempted to regulate Ds actions in privacy of his own home. It has imposed a criminal sanction for public behavior which may create substantial health and safety hazard both for appellant and for members of the general public, and which offends the moral and esthetic sensibilities of a large segment of the community. This seems a far cry from convicting one for being an addict, being a chronic alcoholic, being mentally ill, or a leper Criminal penalties may be inflicted only if the accused has committed some act, has engaged in some behavior, which society has an interest in preventing, or perhaps in historical common law terms, has committed some actus reus. It thus does not deal with the question of whether certain conduct may be punished because it is involuntary or occasioned by a compulsion.

Commonwealth v. Noel [intoxicated while riding a horse attendant circumstances] p. 140.

a. b. c. A person shall not drive, operate, or be in actual control of the movement of a vehiclewhile under the influence of alcohol to a degree which renders the person incapable of safe driving. The issue in the state supreme court concerned the nature of the defendants vehicle which was alleged to be a horse The court reasoned it is entirely unclear which provisions apply by their very nature to person riding an animal and which do not. Besides, it is not at all clear that a horse, which unlike a car is not fully controlled by the rider, would allow itself to be driven in an unsafe manner

[Causation as a Crime Element] p. 142 Based on the notion that it is unfair to hold someone criminally responsible for harm that occurred in a way unrelated to the persons conduct. 1. The simplest model of causation: but for, cause in fact, or actual causation Would the result not have occurred but for this conduct?  A universal limit on criminal responsibility is that the defendant may be convicted of a crime only if he or she actually caused the harm required by statute  This so-called but for causation requires a link between the defendants acts or omissions and the harm  Sometimes the defendants started a chain of events that eventually led to the result punishment by a criminal statute  A person is criminally responsible if the result would not have occurred but for his conduct, operating either alone or concurrently with another cause...  Other jurisdictions require more than just but for causation. 2. Proximate (or policy-based or legal) causation: the [MPC approach] Is there a second but-for intervening cause?  In many states and under the MPC, even if there is but-for causation, liability may not be imposed on that basis alone. More is required.  The second fact of causation is often referred to as proximate or legal causation and requires policy analysis to answer the question whether it is fair to hold the defendant criminally accountable for the result  Proximate cause issues often arise when the defendant does an act and another person does a second act contributing to the result. Another variety is when the defendant commits an act and then some other event occurs that unexpectedly contributes to the result. State v. Sowry [voluntary search arrested for disorderly conduct and asked if he had drugs and said no and then they were found during a detailed search] p. 122 The persons liability is based on conduct that includes either a voluntary act, or an omission to perform an act or duty that the person is capable of performing

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Any act that is not the product of the actors conscious determination is not a voluntary act Sowry was arrested by police before he was brought to jail, and he was brought to jail under arrest. A persons capacity or ability to exercise is implicit in the measure of personal autonomy that a voluntary act involves f. The law will not punish a guilty mind alone. He was under arrest and was brought into detention facility by police, so not voluntary. Possession as actus reus o Can be punished for just possession of an item [drug/weapon] o Must know about the contraband and not get rid of it o Can be actual or constructive possession [Zandi] y The simplest model of causation: but for, cause in fact, or actual causation o A universal limit on criminal responsibility is that the defendant may be convicted of a crime only if he or she actually caused the harm required by the statue o This so-called but for causation requires a link between the defendants acts or omissions and the harm o Sometimes the defendants started a chain of events that eventually led to the result punishment by a criminal statute Proximate (or policy-based or legal) causation: the model penal code approach o In many states and under the MPC, even if there is but-for causation, liability may not be imposed on that basis alone. More is required. o The second fact of causation is often referred to as proximate or legal causation and requires policy analysis to answer the question whether it is fair to hold the defendant criminally accountable for the result o Proximate cause issues often arise when the defendant does an act and another person does a second act contributing to the result another variety is when the defendant does an act and then some other event occurs that unexpectedly contributes to the result Independent intervening cause Dependent intervening cause
Not intended or reasonably foreseeable; it is so independent of the defendants conduct that it would be unfair to hold the defendant criminally responsible for the result Breaks the chain Ex. Stab victim that while in the hospital is shot by former lover o Sufficiently related to the defendants conduct to merit holding the defendant responsible for the harm Was the second cause foreseeable or intended by the defendant? Ex. Drugs suppliers sell drugs and the person overdoses Ex. Victims wounds become infected

d. e.

o o o

o o

You take the victim as you find him or her. Frail victims are frail victims!

United States v. Kibbe: What if a result is intended or foreseeable, and actually occurs, but in a
different manner than expected or likely? [Drunk man was robbed and left near a road. He wandered off and was killed by a speeding truck]. P. 144 1. Ruling, both victim and driver were intervening causes, but D responsible because victims death was foreseeable, even though exact manner was not.

Commonwealth v. McCloskey [hosted a under-age party for her daughter where children left and got into an accident and died] p. 144, COMMON LAW CONCEPTS.  McCloskeys furnishing the alcohol to minors, including Mowad, started the chain of causation that led to the death of three teens  We conclude that the occurrence of a fatal automobile accident following a teenagers unlimited consumption of alcohol at a wholly unsupervised teenage beer party is neither remote nor attenuated. Further, we are convinced that it is not unfair or unjust to hold McCloskey responsible under these facts, despite the existence of other factors that combined with McCloskeys conduct to achieve the tragic result here

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 Was the defendants conduct so directly and substantially linked to the actual result as to give rise to the imposition of criminal liability, or was the actual result so remote and attenuated that it would be unfair to hold the defendant responsible for it? This is similar to United States v. Kibb. Victims death was foreseeable, even though exact manner was not. MPC 2.03 retains the but-for approach of common law but adds a different, specific king of legal or proximate cause approach. COMMON LAW MENS REA or mental state, needs to be carefully assessed by prosecution and defense. p. 151 1. General mens rea (general intent), is often said to require proof that D intended to perform the physical act proscribed by the statute; D need not have intended the consequences of the act. Sometimes the courts also require that the prohibited result be reasonable expected to follow from the offenders voluntary act, but not that the result necessarily be intended. D need only be aware of factors constituting the crime, need not intend a specific result. Jury can infer general intent just from committing the act. 2. Specific mens rea (specific intent), ordinarily used to refer to either the mens rea required by the criminal statute, or to a statutory mens rea requiring a specific intent, intent to kill. When crimes requires not just desire to do, but also the desire to achieve a specific result. 3. Strict liability, no intent crimes! All that matters is that D is engaged in the act. Morisette v. United States, knowing conversion of government property. D admitted that he took abandoned casings from a government practice bombing range and sold them for scrap. No intent required.

People v. Hoskay [D was on top of a man with his pants down and it appeared that
they were having intercourse] a. Legislative silence on the element of intent in a criminal statute is not to be construed as an indication that no culpable mental state is required. A requisite mental state may be inferred from the statute. b. Here the plain language of the public indecency statue reflects the general assemblys intent to make the offense a strict liability crime without a culpable mental state. The general assembly employed an objective standard and made the statue applicable to the performance of sexual acts in a public place or where the conduct may reasonably be expected to be viewed by member of the public c. This objective standard depends not on what a particular defendant actually knew, but on what a reasonable person in the defendants position should have known.

Jackson v. State [arraignment and failed to appear] p. 173.

1. Generally the mens rea and actus reus have to coincide, that is, to be guilty of common law theft, which has the mens intent to permanently deprive the possessor of the thing stolen, you have to intend to permanently deprive the owner of the property at the time you take it, not at some later time. 2. Legislatures can draft definitions of crimes to get around this, [burglary]. As Jackson indicates, you shouldnt be too literal-minded about temporal concurrence of intent and act: its enough if the relevant mens rea causes the prohibited actus. Thus its enough to convict for knowingly failing to appear in Court if you decide not to attend or think you dont have to attend and then subsequently dont attend, rather than the state having to prove that you thought about attending on each day and decided not to. 3. In Jackson the jury clearly didnt believe his story forgetting to go to court and then deciding that he wouldnt need to be there the second day and that someone would contact him about rescheduling, and the appeals court held the judge had done enough to give the jury an adequate picture of what concurrence meant and what evidence might, if believed by the jury, negate concurrence, even if she hadnt given his requested instruction on the need to prove simultaneity.

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4. Malice, when D acts intentionally or with reckless disregard of an obvious or known risk.

United States v. Kimes [assaulted an officer not in uniform pretending to buy heroin or cocaine
specific/general intent] p. 151. a) 18 U.S.C. 111 (A)(1) prohibits an assault on a federal officer. b) But the statute does not specify whether it creates a general intent or a specific intent crime. The difference is important, because if the required mens rea is specific intent, the defendant can only be guilty if the defendant knows that the person assaulted is a federal officer, but if the crime is one of general intent, this knowledge is not required. c) Court ruled it as general intent. When it intends to create a specific intent crime, Congress explicitly says so. MPC MENS REA Approach] Section 2.02. 1. Purposely, conscious object to cause a particular result or engage in particular conduct, what D meant to do! 2. Knowingly, aware of his conduct or aware of the circumstances. 3. Recklessly, D is aware of and consciously disregards a substantial and unjustifiable risk. Intentionally taking a bad risk! 4. Negligently, D should have known about a substantial and unjustifiable risk. 5. Violations, minor infractions that cannot result in either probation or incarceration and where legislative purpose plainly calls for strict liability. Downward inclusiveness! Proof of the highest automatically establishes all the lower states. If a statute does not include a mental culpability element, then the default position is that the element is purposely, knowingly, or recklessly.

United States v. Lynch [defendant picked up a human skull while he was hunting]
Resources Protection Act, which makes a crime of knowingly removing an archeological resource from public land b) D preserved the mens rea issue for appeal, stating he had not known that he was violating the law or that the object removed was an archeological resource and knowledge was an important element. c) Government argued, use of knowingly rather than willfully reflects legislative intent that statute not require a knowledge that ones actions are against the law. d) Knowingly = that a defendant knows or has reason to know that he is removing an archeological resource So, to satisfy the statute, D does not need to know that his conduct is illegal. He just has to know that he is removing an archeological resource. This standard is lower than the substantially certain requirement for knowledge in the MPC. [Recklessness, Criminal Negligence, and Civil Negligence] p. 159 REQUIRE A GROSS DEVIATION FROM THE STANDARD OF CARE OF A REASONABLE PERSON. Recklessness is objective and subjective. D must be subjectively aware of a risk and the risk must have been objectively substantial and unjustified. Thus, someone who commits a profoundly foolish act, but who subjectively is clueless about just how foolish the act is, cannot be reckless. Aware of a major risk! Criminal negligence is entirely objective. The actor fits this standard if he should have been aware of the risk, even if he was not. Not aware of a major risk, but should be! a)

People v. Hall [While skiing, D flew off a knoll and hit someone, who sustained traumatic brain injuries
and died. The People charged D with felony reckless manslaughter...in order for Ds conduct to have been reckless, it must have been at least more likely than not that death would result]. 1. D must have consciously disregarded a substantial and unjustifiable risk that death could result from his actions.

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2. His conduct, coupled with a blood alcohol level of .09 and skiing at a high speeda reasonable person could infer that D, a former ski racer trained in skier safety, consciously disregarded that risk. Elements: (1) Substantial risk: risk of death at least more likely than not, asses both the likelihood that harm will occur and the magnitude of the harm should it occur. A risk does not have to be probable in order to be substantial. (2) Reckless, the risk must be of such a nature that its disregard constitutes a gross deviation from standard of care that a reasonable person would exercise. (3) Unjustifiable risk, determined by weighing the nature and purpose of the actors conduct against the risk created by the conduct. If a person consciously disregards a substantial risk of death but does so in order to advance an interest that justifies such a risk, the conduct is not reckless. (4) Conscious disregard, aware of the risk and chooses to act despite that risk. Can infer a persons subjective awareness of a risk from the particular facts of a case, including persons particular expertise. [TRANSFERRED INTENT] p. 164 As intent to kill B is essentially transferred to the real homicide victim C. [A hired killer B] Applies wither the actor intended to kill a certain person or an unspecified individual or group. Can be used as a defense [X attacks Y with a gun. Y pulls her own gun and shoots at X in self-defense but accidentally kills Z. Some decisions allow Y to use the concept of transferred intent to assert self-defense, even though Y killed someone who was not posing a threat to Y.

Mordica v. State
Some criminal statutes provide gradations of a crime based on individual characteristics of a victim. A shoots at B, a taxi driver. A misses and shoots Y, a police officer. Transferred intent does not apply to make the crime assaulting a police officer. [DELIBERATE IGNORANCE AND THE JEWELL (OSTRICH) INSTRUCTION]

United States v. Jewell p. 166 1. D claimed a stranger who had given only his first name had approached him in Tijuana, Mexico and offered to sell
him marijuana. 2. When he declined, the stranger offered him $100 to drive a car across the border. He accepted and saw a secret compartment in the trunk of the car, but he declined to investigate further. 3. Under those circumstances, we held that there was both circumstantial evidence of actual knowledge of the marijuana, and evidence that he deliberately avoided positive knowledge of the contraband to avoid responsibility in the event of discovery. Jewell instruction, ...can satisfy burden of proof as to guilty knowledge by proving beyond a reasonable doubt that, although D was not aware that there was a controlled substance...nevertheless was aware of a high probability...ignorance was solely and entirely a result of having made a conscious effort to disregard nature....avoid learning the truth. Problem: Some courts dont use it because it can punish someone that really didnt bother to ask, simply negligent in inquiring about certain facts!

United States v. Sanchez-Robles [went to Mexico with her daughters and returned with 417 pounds
of marijuana] p. 166
1. Used the Jewell instruction but court of appeals disapproved the use of it. 2. The Jewell instruction should not be given in every case where a D claims a lack of knowledge, but only in those comparatively rare cases where, in addition, there are facts that point in the direction of deliberate ignorance. 3. This case fits the Garzon mold. D had actual knowledge of the illegality or she had no knowledge at all. United states v. Garzon 1. Garzon claimed to have innocently opened a bag, without knowledge of its contents. Found that the defendants conduct was inconsistent with conscious avoidance.

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2. Garzon saw the cocaine; he either knew it was cocaine, and that he was thus participating in illegal activity, or he did not know and was therefore merely innocently present. No evidence suggested a middle ground of conscious avoidance.

CHAPTER FOUR-BURDEN OF PROOF BEYOND A REASONABLE DOUBT

1. Proof beyond a reasonable doubt of every element of criminal offense is a constitutional requirement, as Winship teaches. Due Process Clause. As synthesizing Mullaney and Patterson and their progeny indicate, jurisdictions have latitude in drafting offenses to designate something an element of an offense, in which case it must be proven by the prosecution beyond reasonable doubt; defenses, in which case once they are raised by the def on minimally sufficient evidence, they must be disproved by the pros beyond reasonable doubt; and affirmative defenses, in which case they must be proven by the defense on the civil preponderance standard. p. 195-96. There is debate about the proof beyond reasonable doubt standard, both on philosophical grounds and because of the competing positions adopted by people who are persuaded by cases where people are acquitted of horrendous crimes and go on to commit other equally horrendous crimes of the same type, and those who are persuaded by cases such as those surfaced by the innocence project, where innocent people are convicted and sentenced to death. 4. Most people in the penitentiary are there on the basis of circumstantial evidence. And as Stogsdill shows, the principles that the defendants guilt can be established by the weight of combined pieces of circumstantial evidence such that the conclusion must be warranted by the combined and cumulative force of all the incriminating circumstances and that the State must exclude every other reasonable hypothesis except guilt, mean that outcomes of criminal cases can be relatively unpredictable. US v. Smithers (p. 229). D appealed for courts exclusion of eyewitness testimony. Wrongful convictions from eyewitness testimony! Problematic. See p. 233, compromise. Procedural and evidentiary rules can play a very important role in how hard or easy it is to successfully prosecute a case. Similar fact evidence, or as the text calls it evidence of similar crimes, which arose in Stogsdill, cannot be used to prove propensity to commit a crime, but can be admitted, for example, to help establish the identity of the criminal.

2.

5.

3.

6.

CHAPTER FOURTEEN-LEGALITY OF CRIMINAL LAWS

The principle of legality means that criminal laws including those relating to sentencing should be reasonably specific; its a fundamental principle of our criminal justice system.

People v. Keeler [D stomped on wifes stomach, killing the fetus. Was not homicide because fetus was not a human being. The statute was to be construed in light of the common law, which limited human being to those who are born alive]. p. 674. Commonwealth v. Booth [PA S.Ct. considered whether state may rely upon death of an unborn child
as the predicate for the crime of homicide by vehicle while driving under influence]. p. 674. 1. Court rejected application of statute to unborn children because there were no common law crimes in PA and human being should be read as one who is born alive.

Rogers v. Tennessee [Murder under common law was limited by year and a day rule. Death must occur with a year and a day of the homicide for D to be convicted of murder]. p. 675 1. Applied in Rogers case, but State held that the rule no longer had any support in policy and should be abolished. 2. Made sense when medicine was primitive and couldnt trace causation but we can now! 3. A person in Rogers position could scarcely lack notice that his conduct was likely to be punishable as murder. Did not violate Due Process.
Common law crimes. Keeler and Booth both show that common law crimes no longer exist. However, common law reasoning still prevails. 1. Some states dont have statutory definitions for crimes so have to rely on common law. Sometimes, statutes are interpreted with common law. 2. The courts do use common law interpretation to expand crimes and will expand the scope of crimes

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when the policy is clear and the defendant neither lacked notice nor relied on any rule of exoneration Reception statutes- recognize common law crimes. Fillers! So, if a statute doesnt exist for a crime, common law prevails or fills in.

People v. Kevorkian [D helped terminally ill people commit suicide and was indicted for murder. Some indictments were quashed. Prosecutor appealed]. p. 677. 1. This court has modified common law when it perceives a need to tailor culpability to fit the crime more precisely than is achieved through application of exiting interpretations of common law. We perceive such a need only where there is probable cause to believe that dead was the direct and natural result of a defendants act can the defendant be properly bound over on a charge of murder. Where a defendant merely is involved in the events leading up to the death, such as providing the means, the proper charge is assisting in suicide. 2. There wasnt a statute for assisted suicide, so it fell within MCL 750.505, common law crime saving clause.
Malum in se: inherently wrongful conduct. Malum prohibitum: conduct that is wrong only because its illegal. [RULE OF LENITY] p. 679. When all else is equal, courts should resolve ambiguities in criminal statutes in favor of Ds and against prosecution. Familiar reading of the word should be preferred to the vague and obscure. Some statutes adopt the rule of lenity. Others reject it.

Lawrence v. Texas [A person commits an offense if he engages in deviate sex intercourse with another individual of same sex]. p. 680. 1. Rule of lenity was of little help to Ds when the statute was enforced. Very clear. 2. Due process clause protection of liberty interest in private intimate behavior and no legitimate state interest justifying intrusion into it. Substantive due process is used to challenge a statute that a court believes has little relationship to the public interest, even if State argues it does. 3. First amendment. [Laws that reach conduct that is protected by the First Amendment are said to suffer from over breadth - generally cannot punish speech on basis of content.
[NOTICE] p. 681. y Ex post facto clause (legislative)-criminalizes past conduct (or increases its punishment). y Due process clause (judicial) forbids retroactive application of judicial interpretations. *Bouie doctrine application to a D of novel or unforeseeable judicial interpretation of criminal law violates due process often narrowly construed. y Pure notice Lambert. Very rare case where city required anyone previously convicted of felony to complete registration. Registration statute found unconstitutional on due process grounds: Lambert did not know about it. Court agreed. p. 684. [VAGUENESS]

Lanzetta v. New Jersey [Vague statute]. p. 684. 1. Based on the definition of gang, statute says it is any group of 2+ people. This isnt exclusive or inclusive. A gang can mean anything completely legal or not legal association. 2. Legislature was probably trying to find a way to criminalize gangsters since most of their activity is in secret and is very hard to prosecute Vagueness made this easier! 3. Statute invalidated. City of Chicago v. Morales [Anti-gang loitering statute. Struck down for vagueness. Failed notice.] p.
685.

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CHAPTER FIVE-ASSAULT, SEXUAL ASSAULT, AND RELATED OFFENSES

COMMON LAW Attempted Battery, unlawful application of force to another resulting in injurious or offensive touching. General intent mental state. Simple assault, may (or may not) include both attempted battery assaults and conduct that is intended to frighten victim. Specific intent. Aggravated assault, enhanced by factors such as blameworthy mens rea (intent to kill), use of weapon, or occupation or qualities of victim (police officer, young/old). Specific intent. Other offenses, threats/reckless conduct/child endangerment. Cover up gaps caused by mens rea requirements or physical elements of assault, so they otherwise might not be crime. ASSAULT-WITH-INTENT-TO formula. Simple assault, p. 244: Smith v. United States, D argued evidence was insufficient to support two convictions for armed assault. Double jeopardy. 1. Court given standard assault instruction, battery assault only. Jurisdiction had attempted battery assault and intent to frighten assault. 2. D argued that there was insufficient evidence for attempted battery assault [requires proof of an attempt to cause a physical injury]. Intent to frighten requires proof of threatening conduct intended to injure or frighten the victim. court held that the trial courts failure to 3. In McGee v. United States instruct jury on intent-to-frighten BARS affirming McGees conviction on an intent-to-frighten assault theory! 4. Same result here. Smiths assault convictions reversed. State v. Boutin, After fight with victim, D advanced with bottle raised over his head from 10 ft away, in obvious preparation to hit him. Two officers intervened. 1. D charged with assault but Vt. S. Ct. acquitted him because the statute provided that a person was guilty of simple assault only if he attemps to cause or purposely, knowingly, or recklessly causes bodily injury to another. 2. D did not cause an injury and wasnt close enough to complete an attempt. 3. Vt. had no intent-to-frighten provision.

United States v. Kimes [Assault on Federal

officer. Statute does not specify if it is a general or specific intent crime]. 1. General intent, then D can be guilty even without knowing that victim is a federal officer and without specifically intending to hurt him. 2. Specific intent, then D cannot be guilty unless he knows that victim is a federal officer and intends to injure. 3. SPLIT ON THE ISSUE. [MPC PROVISIONS] Assault is divided up by simple assault and aggravated assault. MPC also includes reckless assault, criminalizing an assault where the specific intent to injure cannot be proven beyond a reasonable doubt. Recklessness is enough. Assault-related offenses: reckless endangerment and terroristic threat. How close to successful perpetration must the attempted battery be? Must reach far enough towards accomplishment of desired result to amount to the commencement of the consummation. Specific Intent  Requires proof beyond reasonable doubt of an intent to cause physical harm or to produce apprehension of battery  Attempted battery assaults & reasonable apprehension of battery assaults General Intent  Only a general criminal intent  Prosecutor would rather be in General Intent jurisdiction  Less required to prove intent! MPC does not require specific intent to constitute an assault, aggravated assault when there is serious bodily injury. Knowledge of recklessness is sufficient, and for aggravated assault, there must be proof beyond a reasonable doubt of serious bodily injury to an attempt to cause it, unless a deadly weapon is used, in which case mere bodily injury is required.

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The effect of MPC is that aggravated assault is not tested by intent to kill, intent to rob, or similarly fine gradations of mens rea, but rather by objective factors: serious bodily injury or use of a deadly weapon. BATTERY UNDER MPC MPC does not criminalize offensive touching. p. 250. Consent plays a big role. p. 251. R. v. Brown, charges against a group of men who privately engaged in consensual and extreme sex. While prosecution usually was required to prove lack of consent to obtain an assault conviction, consent was irrelevant in this case because such encounters were injurious to participants and unpredictably dangerous. In the public interest to prosecute! Guarro v. United States, court found consent of plain clothes officer working a movie theater with a view to arresting patrons was a defense to batter of offensive sexual touching kind. D touched officers private parts and the court reasoned that where there is consent, there is no assault. STALKING p. 252 No common law antecedent! Sometimes very vague or overbreadth. What is the problem in trying to criminalize stalking? Want to avoid legality problems We dont want it to be vague; dont want it to be subject to claims of over-breadth, BUT also dont want to leave victim unprotected. Tricky balancing act. Dont want to run the risk of invading constitutional freedoms.

DOMESTIC VIOLENCE LEGISLATION p. 253 Domestic Violence =Underprosecuted because of social attitudes Reluctance of witnesses to testify or approve criminal complaints Reluctance of the law to regulate the private sphere of home/domestic life.
Solution? Many jurisdictions address domestic violence with special legislation, even if already criminal offenses. ...primary duty of law enforcement officer when responding to a domestic violence call is to enforce laws allegedly violated and to protect the victim...violent behavior will not be excused or tolerated and law will be enforced without regard to fact that violence grows out of domestic situation. *Mandatory arrests and seizures? *Prosecuting as a matter of policy? Even if victim refuses to testify. Subpoenas? Use evidence from 911 calls, physical evidence, children, bystanders, etc. Dating relationships count too! Stalking sometimes counts, depends on jurisdiction. p. 257.

[SEXUAL ASSAULT OR RAPE] p. 258

Four factors that define sexual assault: 1. Force: or a substitute like threat or fraud. How much force is enough? A policy answer. Might be when professor wants you to argue policy. Utilitarian and retributive on both sides. Mental state is not particularly important. Ds rarely argue mistake in rape cases. Some jurisdictions require fault or some substitute of it, like threat or fraud. 2. Resistance: even force is not enough in the absence of counter-measures by victim. Saying no may not be enough. 3. Nonconsent: Victims subjective knowledge + objective manifestations of D from verbal expressions of nonconsent or physical resistance. Ds awareness of objective manifestations matter too. Confusing bc it is not enough for victim to say she didnt consent, sometimes she must have exhibited some type of behavior that shows her objection.

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4. Mens Rea: actual knowledge? Makes it hard to prove because non-consent will not suffice most of the time unless defendant is AWARE of the non-consent.   What all this means Sexual Assault, prosecution difficult in the case of the subjectively nonconsenting victim who agrees out of fear. Characterizing typical mens rea/actus reus in the United States is almost impossible. y Jurisdictions differ y Growing view is that the force requirement means that mens rea is rarely the focus. More important to focus on things that are mens rea-driven than force driven. But this doesnt mean its like this everywhere! y When does sex become rape? How much force is necessary? Whose definition of consent governs? How much do we need to know about the accuser & the accused in order to decide? y Men and women differ regarding what is reasonable in sex Many jurisdictions refuse to convict if victim consented, even if it was out of fear. Some jurisdictions require actual manifestations of resistance. If defendant subjectively believed she had consented, OR the required level of mens rea (knowledge, recklessness, negligence) was absent bc there was no communicated reason for him to know, then a conviction may not be found.

[Actus Reus of Sexual Assault]

Force, threats, fraud. People v. Iniguez [Rape of a bride while she was asleep. She was too scared to move so she just laid there. She was 105 lbs and D was 205 lbs. No consent]. p. 262. 1. Sufficient evidence of force for sexual assault on slight evidence. 2. Statute here: use of force, violence, or fear of immediate and unlawful bodily injury. Fear because victim did not know the D and did not know his propensity to violence. Weight issue, too. Commonwealth v. Berkowitz [Female college student went to her dorm, drank a martini, and went to a lounge to wait for her boyfriend. She went to another dorm to find her friend when her boyfriend did not appear. She saw a man sleeping on the bed and thought it was her friend. D asked her to stay for a while and she agreed. Made advances, lifted up her shirt, massaged her breasts. He locked the door but it could still be opened from inside. She said no throughout the encounter]. p. 263. 1. Court pronounces that evidence was not relevant to the separate issue of force, even though she said no. Evidence of this required element was absent. 2. Court did convict for indecent assault, indecent contact...without the consent of the other person. PA has a higher standard of force than CA but also has a lesser crime. [Resistance] People v. Dohring [Nonconsent element of rape required utmost resistance by a woman, to the extent of her ability]. p. 264. Modern approach: contemporary statutes do not specify resistance as such to define basic rape. Focus on force, consent, and mens rea about consent.

[Mens Rea of Sexual Assault]

Mens rea of D with respect to consent is important! 1. Some authorities have advocated treating sexual assault as a general intent crime for which awareness of nonconsent is not an issue. 2. Knowledge, recklessness, or negligence? Objective mens rea standard means that Ds negligence as o consent suffices to convict. The subjective knowledge of nonconsent standard provides that a merely honest lack of knowledge will acquit, even when unreasonable.

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3. In modern jurisdictions, if the victim subjectively does not consent and knows that she is nonconsenting, but D, viewing the victims words and conduct, misreads them and believes she consented, not a crime. COMMON LAW DEFINITION OF RAPE: 1. Carnal knowledge of a woman forcibly and against her will. 2. Utmost resistance from victim? 3. Actus reus: show particular kinds of force (weapon/injury), threat, and fraud (victim is drunk and unconscious/impersonation/quasi-fiduciary relationships). MPC: Removed the requirement to show utmost resistance and refocused from nonresistance of victim to conduct of D. A male who has sex with a female not his wife is guilty of rape if.( a marital exemption) Remember, MPC has not been influenced by all the new feminist ideas re: rape convictions. Reynolds v. State [D, acquaintance of victim, offered to take her home but instead took her to his apartment. He forced her to enter his apartment, locked the door and took the key, had intercourse with her, and prevented her from leaving until morning. She verbally resisted but never physically, because she was afraid of D, and saw a handgun on the chair in the apartment]. p. 268 1. Constitutional challenge to Alaskas sexual assault statute as vague and broad. 2. Court affirmed first-degree sexual assault charge and rejected Ds argument. 3. Legislature relaxed statutory requirements for offense. Resistance requirement was abolished. Force was defined to include any bodily impact, restraint, or confinement or threat thereof. Physical injury included any physical pain or impairment of physical condition. Enhanced the risk of conviction in ambiguous circumstances and were basis of Ds constitutional challenge. 4. Legislature also made it easier for D to rely on mistaken belief in consent! Mistake had to be reasonable. 5. No specific mental state was mentioned. The state must prove that D acted recklessly regarding his victims lack of consent. Protects the D where circumstances regarding consent are ambiguous. [Aggravated Sexual Assault] p. 271. It is a more serious class of felony, subject to higher penalties. Includes use of dangerous weapons, serious physical injury, threats of serious physical injury, multiple perpetrators, or burglaries. Rucker v. State [D chose victim at random and hid in her car. Hit her and caused her nose and mouth to bleed, continued to hit her face and chest. Raped her on gravel. Injuries included black and swollen face and eyes, cuts inside her lip, bruised chest and breasts, scratches, rash from poison ivy, and pain]. p. 273. 1. Since there was no concussions, no broken bones, no internal injury, no scars, no serious permanent disfigurement, and no protracted loss or impairment of any part of her body, she did not meet the requirement for serious bodily injury. 2. So, not aggravated rape because it required serious bodily injury. 3. Only verbal threat was that she would be shot if she did not run but it was made after the rape was completed and did not compel submission to the rape as is required by the statute for the element of aggravation. 4. Statute was amended after the case. Now, aggravated if D by acts or words places the victim in fear that serious bodily injury will be imminently inflicted. [PROMPT OUTCRY AND CORROBORATION] p. 275. 1.If the D commits crime in private and there is no physical evidence and only victim as witness, there is no crime. 2. If the victim delays reporting to the police for three months because she is afraid, the crime cannot be proven. Most jurisdictions have abolished these MPC requirements by now!

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Corroboration requirement Concerns about prosecuting crimes without witnesses other than accused & victim. Jury must be told to evaluate witnesses testimony with care. False report rate of about 8% statistically

Prompt complaint requirement Only if victim comes forth promptly afterwards can the court find a conviction. (Similar to statute of limitations) This stems from historical view of women as being unbelievable re: rape, esp. if they were promiscuous.
[Modern statutes protecting sexual assault victims] p. 276. 1. CO Rape Shield: Evidence of victims prior sexual conduct, opinion evidence of it, and reputation evidence is irrelevant except when there is evidence of the victim or witness prior sexual conduct with the actor or evidence of specific instances of sexual activity showing source of origin of semen, pregnancy, disease, or any similar evidence of sexual intercourse, to show that the acts were not committed by D. [Sexual Assault Upon a Child] p. 278 1. Statutory rape is a strict liability crime in some states. Sexual intercourse with someone under 17 years of age. 2. Under MPC, if victim is 11, 12, 13, or 14, an honest and reasonable mistake of victims age is a defense. Not exactly a strict liability crime under MPC. Some states require the mistake to be induced by a false claim by the young person as to his or her age. Promiscuity of the young person is also a defense here. State v. Garnett [20 year old man with IQ of 52 was convicted of second degree rape of a 13 year old girl acquaintance under statutory rape provision of MD]. 1. Strict liability crime even while conceding that it is uncertain to what extent Ds intellectual and social retardation may have impaired his ability to comprehend sexual morality. People v. Hernandez [The sexually experienced 15 year old may have been far more aware of the implications of sexual intercourse than her sheltered cousin who is beyond age of consent]. p. 279. 1. Charge of statutory rape was defensible if criminal intent was lacking. 2. Allowed the D to present evidence of his reasonable belief that the complaining witness had reached the age of consent. State v. Jadowski [D faced charges on sexual intercourse with a person who is not yet 16 years old. The D was allowed to present evidence that victim intentionally misrepresented her age]. p. 279. 1. However, Wisconsin precludes a defense predicated on a childs intentional misrepresentation. Therefore, evidence of Ds reasonable belief about victims age was inadmissible in guilt-determination phase of a criminal proceeding. 2. Since the statute explicitly states that proof of knowledge of age is not required, it is not a defense. 3. D agreed but stated that there is a difference between defense of mistake and defense of fraud by victim. 4. Strict liability case! Doesnt matter. Policy implication. See page 281!

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CHAPTER SEVEN-THEFT AND RELATED CRIMES

COMMON LAW
[COMMON LAW LARCENY] The original theft offense, when thief wrongfully carried away or asported property from the possession of the victim. The thief must have illegitimately taken the property. p. 373. 1. DOES NOT cover theft of negotiable bills, notes, and checks. Merged with matter they represented. p. 378. 2. DOES NOT cover services but now jurisdictions have either included them within property or put them in the consolidated theft statute. p. 378. 3. Electronic property, trade secrets, information were not included within larceny either. But now, jurisdictions have included them as property because they are items of value. Modern statutes have expanded larceny to include written instruments embodying intangible rights. p. 378. 4. Joyriding is not common law larceny. Thats why we have statutes. p. 379. 5. Abandoned or lost property: can be larceny! (1) Finder must know or have reason to believe he can find the identity of the owner and (2) must have the intent necessary for larceny. (a) taking, D had to seize and possess the item. (b) asportation, carrying away, D had to remove the item. Can be slight. So could not be real estate! (c) a trespassory taking, usually by force or stealth. If consent, not larceny. (d) item had to be property, services not covered. (e) of another. Is a larceny as long as someone had possession! So someone who rents a car and gets it stolen, D stole it from the renter. The owner is called the special owner. p. 378. Mens rea=intentional deprivation of property from possessor and intent to deprive to be permanent. Unauthorized borrowing is not larceny. MISTAKE can negate mens rea.

People v. Meyer [D was convicted of larceny for feloniously carrying away an overcoat. The coat was tied
to a dummy by string so kept D from taking it away]. p. 375. 1. Was determined not to be larceny because the coat was attached with a string and therefore was not held as severance from the owners possession, and no felony. 2. String prevented asportation, or carrying away. [COMMON LAW LARCENY-BY-TRICK] p. 377. If thief obtained possession consensually but by fraud.

The King v. Pear [larceny of a horse. D obtained possession of the horse from the owner by fraud,
intending to steal it]. p. 380. 1. Not larceny, so larceny-by-trick created. STATUTORY EMBEZZLEMENT (DERIVED OUT OF COMMON LAW TO FILL IN GAPS) p. 389 *Grand embezzlement (a felony) and petit embezzlement (a misdemeanor) based upon value of property. *D initially, with a clean mind, obtained possession. No trickery. (a) The fraudulent-taken when D has lawful possession of the property. (b) Conversion-D deal with the property in a manner inconsistent with the trust arrangement pursuant to which he holds it. No movement or carrying away required. Need not result in personal gain by D. (c) Of property-property that may be subject to larceny, not real property or services. Some statutes expand this. (d) Of another (e) By a person in lawful possession of that property. INTENT TO DEFRAUD. 1. If there is an intent to restore the exact property, not embezzlement. If replace with the similar or almost identical property, it is embezzlement.

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2. Claim of right-if it is retained for payment of a debt honestly believed to be owed, not embezzlement.

Commonwealth v. Ryan [D was employed to sell liquor at owners store. D dropped money into cash register but took it out two minutes later. D argues it isnt embezzlement, but larceny, because when it was put in the register, owner had possession]. p. 390. 1. Follows...position cannot be maintained...judge was right in charging the jury that, if D, before he placed money in drawer, intended to appropriate it, and with that intent simply put it in the drawer for his own convenience in keeping it for himself, that wouldnt make it just for larceny. Hes just trying to get out of responsibility! People v. Rishel [Attorney found guilty of theft. He collected money from a group of people that pooled
money for tickets. He kept the money]. p. 392. 1. Stated couldnt prove what crime had been charged. Did not have intent to permanently deprive the group. If was separated by type, could say it was one or the other. 2. Theft when he knowingly obtains or exercises control over anything of value of another without authorization, or by threat or deception, and knowingly uses, conceals, or abandons the thing of value in such manner as to deprive the other person permanently of its use or benefit. FALSE PRETENSES [Also created by statute and a part of common law]. p. 382. 1. Obtaining title 2. to property of another 3. by an intentional or knowing false statement of past or existing fact-facts must be untrue. Mere puffing doesnt suffice (promotion by opinion). 4. with intent to defraud the other. IF ONLY POSSESSION IS OBTAINED, THEN LARCENY-BY-TRICK. IF TITLE, THEN FALSE PRETENSES. 1. A person who owns property has title to it! 2. Ownership is different from possession. A renter has possession, owner is the one with title. 3. Custody is different from possession! Trying on clothes at a store is mere custody. Owner still has title. Constructive possession. 4. Larceny by bailee: bailor transfers possession and physical control to bailee for a purpose. Gets possession, not title. LARCENY BY BAILEE (p. 385) was created because if a bailee acting with a clean mind gets possession, and later decides to steal an item, the crime isnt larceny, larceny-by-trick, or theft by false pretenses. So common law expanded to include larceny by bailee. 5. Larceny by false promise was also included later on, for not paying off a debt or satisfying a contractual obligation. 6. Forgeries are false pretenses. 7. Signing your own name to a check and having insufficient funds is hard to interpret. It could be larceny or false pretenses. But some states have crimes covering bad checks.

People v. Phebus [Shopper switches price tag on merchandise at store to buy at a lower price]. p. 383.
1. D charged erroneously with larceny. Court instead found elements of false pretenses. 2. Title transferred to him when he bought it at the lower price. 3. Quashed! SEE ALSO NOT ON MAIL FRAUD AND FEDERAL BANK CRIMES, p. 385. Mail fraud statute: anyone who obtained property by any scheme or device to defraud or by means of false pretenses, representations, or promises. Federal bank robbery statute: covers robbery and larceny, anyone who takes and carries away with intent to steal or purloin, any property or money from a bank or other covered institutions.

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Bell v. United States [Man wrote a check and mailed it to bank but bank never received it. D opened a
bank account and used his own name but gave a false address, DOB, and SSN. He deposited the mans check and closed account and got the money]. p. 386 1. D argued that the federal bank robbery statute is only limited to common-law larceny but court disagreed and stated it does include false pretenses.

MPC
MPC THEFT, p. 393. Consolidated theft statute! Technical distinctions should not be traps for manipulation. Simplifies the law! Different approaches: 1. Redefine theft completely! 2. Keep the three historical offenses as distinct definitions.

Commonwealth v. Mills [D found guilty of five larceny crimes. Stole money from the city from false earning reports]. p. 395. 1. Since MA still uses three common law definitions under a consolidated statute, it was easy to find D guilty (false pretenses). RECIEPT OF STOLEN PROPERTY p. 399. 1. Receiving possession or control-manual possession is not necessary. A. Placing stolen property in place D has designated B. for profit, D arranges a sale of property by thief to a third person. 2. of stolen property-obtained by commission of any other property offenses. A. If stolen goods have been recovered by the police and are used in an undercover operation with the owners permission, the goods are not stolen and D cannot be guilty of receipt of stolen property. May be guilty of attempt to receive stolen goods. 3. known to have been obtained in a manner constituting a criminal offense 4. by another person 5. with the intent to permanently deprive the owner of his intent in the property.
Modern statutes usually include: 1. knowledge 2. corroboration-most have removed corroboration requirement for receiving, thiefs testimony sufficient 3. similar transactions-some modern statutes make separate crimes admissible in receiving cases 4. record keeping-requirements on pawn shops or dealers 5. stings by law enforcement-if property isnt stolen, the offense is complete if the receiver believes a law enforcement officer who tells him it is.

Morissette v. United States [D entered practice bombing range and carried away three tons of spend
casings which were lying in heaps. Convicted of embezzling, stealing, converting property of U.S.) p. 401. 1. Statute didnt contain a mens rea requirement. 2. Defense: no intention of stealing and thought property was abandoned. 3. S. Ct. stated that the statute is not a strict liability crime. Expressly requires knowing conversion.

CRIMINAL CONDUCT NOT COVERED BY MODERN THEFT STATUTES p.

403.

Lund v. Commonwealth [Lund stole computer services and acquitted of larceny because it decided that
what he misappropriated was not property]. p. 403 1. Enacted theft-of-service laws.

People v. Brown [Brown taking a cycle could not fit any common law theft crime if he intended to only take a ride on it and abandon it]. p. 403. 25

1. Automobile statute. [FORGERY] p. 404. See 224.1, 224.5, 224.6, 224.7 [forgery, bad checks, credit cards, and deceptive business practices]. [COMPUTER CRIMES]

Newberger v. State [D convicted of crimes of modifying IP by computer and making a false statement to
obtain a credit card. Asserted evidence was insufficient to support convictions of both offenses]. p. 404. 1. Conviction for modifying IP reversed. 2. He had unauthorized use of the computer, not modification of it.

CHAPTER SIX-GENERAL DEFENSES TO CRIME 1. True defense-brings another element into the case a. defenses- must be raised by the defendant, and disproved by the prosecution beyond a reasonable doubt b. affirmative defenses- rely on outside facts and do not disprove the elements. Must be proven by the defendant by a preponderance of the evidence. 2. Failure-of-proof defense-asserts government cannot prove its case, not a true defense. Burden is on prosecution. 3. Rebuttals-factual testimony offered by D that inferentially contradicts an element of the crime. Alibinot a true defense! p. 288.
[SEE PAGES 286-287] UNDER MPCaffirmative defenses arise only when there is evidence supporting such defense. Then, depending on the defense, prosecution disproves it or D proves it.

State v. Deffebaugh [failure to establish presence at the crime]. p. 289.

1. D appeals for count on selling cocaine. Purchased by a police informant. 2. Informant picked D out of a lineup without hesitation. 3. D called witness to state that witness was there but not D but court refused to allow it. 4. Did not follow, requires D to provide notice before offering evidence of an alibi. 5. D said it was a failure of proof defense because prosecution had failed to prove that his identity was the one who committed the crime. He wasnt offering another location of where he was, he was offering a witness that was there and saying it wasnt him. 6. Court agreed with D, statute doesnt require a D to provide notice when he intends to introduct eyewitness testimony regarding his presence at the scene of the crime.

Mullaney v. Wilbur [Failure to prove intent]. p. 195. 1. D attacked and killed a man in his hotel room from a homosexual advance. 2. Argued that he lacked criminal intent and at most, was manslaughter. 3. Court said that D had burden of proof for heat of passion, and he was convicted of murder. Justification Defenses: True defense, I committed the elements of the offense but what I did wasnt
wrong. ***MPC APPROACH: Justification with only a subjective belief, even one thats unreasonable. No requirement of reasonableness. I. Self Defense Need reasonable belief that attack was real (fake guns suffice). 1. Limitations: vague threat of future violence

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MPC 3.09 MPC 3.09 is mentioned on p.296, but it is not in the MPC Appendix. Here it is: Model Penal Code 3.09 3.09. Mistake of Law as to Unlawfulness of Force or Legality of Arrest; Reckless or Negligent Use of Otherwise Justifiable Force; Reckless or Negligent Injury or Risk of Injury to Innocent Persons. (1) The justification afforded by Sections 3.04 to 3.07, inclusive, is unavailable when: (a) the actor's belief in the unlawfulness of the force or conduct against which he employs protective force or his belief in the lawfulness of an arrest that he endeavors to effect by force is erroneous; and (b) his error is due to ignorance or mistake as to the provisions of the Code, any other provision of the criminal law or the law governing the legality of an arrest or search. (2) When the actor believes that the use of force upon or toward the person of another is necessary for any of the purposes for which such belief would establish a justification under Sections 3.03 to 3.08 but the actor is reckless or negligent in having such belief or in acquiring or failing to acquire any knowledge or belief that is material to the justifiability of his use of force, the justification afforded by those Sections is unavailable in a prosecution for an offense for which recklessness or negligence, as the case may be, suffices to establish culpability. (3) When the actor is justified under Sections 3.03 to 3.08 in using force upon or toward the person of another but he recklessly or negligently injures or creates a risk of injury to innocent persons, the justification afforded by those Sections is unavailable in a prosecution for such recklessness or negligence towards innocent persons. SELF-DEFENSE A. Nondeadly force: An individual without fault may use such force as reasonably appears necessary to protect herself from the imminent use of unlawful force upon herself. No duty to retreat before using nondeadly force, even if retreat would result in no further harm to either party. B. Deadly force: A person may use deadly force in self-defense if she is without fault, she is confronted with unlawful force, and she is threatened with imminent death or great bodily harm. 1. Without fault: a person who has initiated an assault or provoked the other party will be considered the aggressor. a. SEE STATE V. GOETZ [threat proportional defense]. p. 297. Used subjective standard for reasonable belief, because D was mugged before. But not supposed to be like that. Supposed to be a reasonable person standard! Trial court=objective, COP=subjective, S.Ct.=objective and sent back to new trial. Given proper jury instruction, objective=still acquitted. NY Penal Code is based on MPC but not in most important part here, not subjective like MPC! b. SEE STATE V. EDWARDS [BSS, evidence of subjective elements in considering who reasonable person is (p. 306). Criticisms: subjective, unless MPC. Allowed BSS instructions] 2. Unlawful force: Attacker must be using unlawful force (i.e. force that constitutes a crime or a tort). 3. Threat of Imminent Death or Great Bodily Harm D must reasonably believe that she is faced with imminent death or great bodily harm if she does not respond with deadly force. Danger of harm must be a present one. There is no right to use deadly force if harm is merely threatened at a future time or the attacker has no present ability to carry out the threat. 4. Retreat: Majority rule is that there is no duty to retreat. A person other than the initial aggressor may use deadly force in self-defense even if they could have retreated. Minority says, no retreat is necessary unless it can be made in complete safety and unless it is in persons home, where attack is being made during a lawful arrest, where assailant is robbing the victim. MPC, NO RETREAT! Unless a co-worker at the workplace! C. Right of aggressor to use self-defense: Generally, one who begins a fight has no right to use force in her own defense during that fight. Can regain right to use self-defense in two ways: 1. Withdrawal

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2. Sudden escalation: if victim turns minor fight into major one involving deadly force and does so without giving aggressor chance to withdraw, aggressor may use force in self-defense. DEFENSE OF OTHERS-Can be used if A. Relationship with person aided-majority says no relationship needed. B. Status of person aided-Can use defense to defend another only if he reasonably believes that the person he is assisting has legal right to use force in own defense. All that is needed is the reasonable appearance of the right to use force. Alter ego rule step into shoes of victim. MPC subjective standard Majority common law rule reasonable belief o See Covarrubias v. State (p. 311) unjustifiable deadly force to save another, could not have reasonably believed deadly force was being used. DEFENSE OF PROPERTY-p. 312 Dwelling-person is justified in using non-deadly force in defense of her dwelling when she reasonably believes that such conduct is necessary to prevent or terminate anothers unlawful entry into or attack upon dwelling. Common law does not allow for deadly force to be used to protect solely property. Deadly force is justified when (1) entry was made or attempted in a violent manner and the person reasonably believes that force is necessary to prevent personal attack (2) person reasonably believes that such force is necessary to prevent the entry into the dwelling by a person who intends to commit a felony in the dwelling. MPC-Moderate but not deadly force may be used to defend property. Deadly force is only allowed if (1) in response to an attempt to dispossess the defender of his dwelling and (2) in response to an attempt to commit certain felonies that involve violence against defender. Also, non-human devices for protection not allowed. Not capable of judgment that would call for lesser force. People v. Ceballos-D set up trap in garage to inhibit two boys from stealing. One boy injured. D charged with assault with a deadly weapon. Use of non-human devices not allowed and common law does not allow deadly force to protect mere property. p. 313. LAW ENFORCEMENT DEFENSE, p. 315. Exists even if arrest is unlawful, if undertaken under an honest and reasonable belief in lawfulness. Not limited to police, peace officers okay a lot of times. COMMON LAW permitted deadly force for arrest of a fleeing felon. MPC limits deadly force to instances where underlying felony involved a use or threat of deadly force or delayed apprehension will create a substantial risk that felon will cause death or serious bodily harm.

Tennessee v. Garner, peace officer used deadly force to stop a fleeing nonviolent felon. Court
ruled arrest was a seizure and unlawful if it was an unreasonable seizure. Deadly force was not allowed in this case. Force used must be reasonable. p. 316 Private person only has a defense to use of deadly force when making an arrest if person harmed was actually guilty of the offense. Has privilege to use nondeadly force if crime was committed and private person had reasonable grounds to believe the person committed the crime.

New York v. Tanella, p. 316. Federal agent killed arrested guy. Court cited TN v. Garner, stating reasonable grounds needed for deadly force. Guy was unarmed and did not cause serious physical harm to agent. Unjustified force, drugs=non violent crime!
RESISTING ARREST A. An individual may resist arrest with deadly force if necessary, an attack made by a police officer trying to arrest her if the person does not know the person is a police officer. B. Nondeadly force may be used if the person knows its a police officer.

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MPC-NOPE! IF YOU KNOW ITS AN OFFICER, NO RESISTING!

People v. Curtis, p. 320. Arrest was unlawful and tried to prosecute as resisting a lawful arrest.
Court, in situations of arrest, its better to allow yourself to be arrested because better resolved in a courtroom. PUBLIC DUTY DEFENSE p. 322. Available to public officials and those who aid them, when law requires or authorizes the officers action. MILITARY ORDERS DEFENSE, p. 322 In State v. Gut, D was charged with murder based upon his having taken part in forcible removal from jail and lynching of a prisoner. If a order is made, and if on account thereof any ignorant person was misled into commission of crime, it is for governor to determine if that would be a proper case for exercise of executive clemency. NECESSITY p. 322 The choice of evils: Basically self defense, but not in terms of using force against others. Conduct otherwise criminal is justifiable if, as a result of pressure from natural forces, the D reasonably believed that the conduct was necessary to avoid some harm to society that would exceed harm caused by conduct. NECESSITY MUST BE UNMISTAKABLY EVIDENT. *Objective test, a good faith belief in the necessity of ones conduct is insufficient. Defense not available if D is at fault in creating the situation that requires choosing between two evils. o Consider: civil disobedience, the cabin during a blizzard o See Commonwealth v. Leno necessity to hand out clean needles, danger they were trying to prevent was not clear and imminent. p. 323. o People v. Lovercamp escape from prison. D escape to avoid assault or rape. Too difficult to use. D here escaped after being abused by other inmates and told guards, nothing happened. Court allowed it with proof! o State v. Romano drunk driving to escape a beating-D had no reasonable alternatives so okay. Harm D faced was significantly higher. p. 324. o See Dudley v. Stephens starvation on a boat does not justify murder. Saving your own life by taking life of another is not justified! p. 325. In MPC, can be a defense to murder!

Excuse Defenses: True defense, I committed the elements of the offense, but I wasnt responsible for my
actions. [Insanity, some intoxication cases, duress, mistakes of fact of law]. Excused because Ds decisionmaking ability about whether to engage in the conduct is impaired. Duress: Choice of evils. If D was forced to commit a crime under the threat of imminent death or serious bodily injury. p. 326. Human agency in the form of another persons threats that if D does not commit the crime, the other individual will carry out the threat. Law limits duress defense because some amount of pressure from ones associates is common in multiparty criminal episodes. MPC Objective standard. Requires that the coercion be enough to overcome a person of reasonable firmness. Allows duress as a defense for murder. Federal common law defense an immediate threat of death or serious bodily injury with a well grounded fear and no reasonable opportunity to escape, as well as, sometimes, submission to proper authorities when safety is attained. Does not allow duress as a defense for murder. Entrapment p. 331. The government unfairly tempted the defendant to commit the crime. If this is the case, its presumed that legislature did not intend to cover the conduct so it is not criminal.

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1. Criminal design must have originated with law enforcement. 2. D must not have been predisposed to commit the crime prior to the initial contact by government. It isnt entrapment if police merely provide opp for the commission of a crime by one otherwise ready and willing to commit it. Cannot be entrapped by a private citizen. TWO APPROACHES: 1. Prevailing subjective standard. Did the government instigate the offense by persuading an innocent person to commit it? Was D predisposed? 2. MPCs objective standard: Ignores individuals predisposition and focuses on propriety or impropriety of governments persuasion. Did government use methods that create a substantial risk that persons who are not ready to commit the offense may be induced to commit it? United States v. Russell-Undercover agent tried to buy meth. Provided dealers with ingredient (not illegal). Used the subjective, predisposition test. US. v. Poehlman-D convicted of crossing state lines to meet with a minor. Majority acquitted, not predisposed to it. Persuaded by an agent. MPC MAKES ENTRAPMENT A TRUE AFFIRMATIVE DEFENSE. D has burden of persuading the jury by preponderance of the evidence. [Capacity defenses] INSANITY: D suffers from mental disease or defect. Exempts certain Ds because of existence of an abnormal mental condition at the time of the crime. p. 341. Tests: 1. McNaughten Test: a D is entitled to acquittal if proof establishes: (1) a disease of the mind (2) caused a defect of reason (3) such that D lacked the ability at the time of his actions to either know his act was wrong or understand the nature and quality of his actions. 2. Irresistable Impulse Test: D entitled to acquittal if the proof establishes that because of a mental illness he was unable to control his actions or to conform his conduct to the law. 3. The Durham Test: D is D entitled to acquittal if the proof establishes that his crime was the product of mental disease or defect, crime would not have been committed but for his disease. Broadest. Not generally used in American jurisdictions 4. MPC Test: Liberal combination. D entitled to acquittal if the proof shows that he suffered from a mental disease or defect and as a result lacked substantial capacity to either (1) appreciate the criminality of his conduct or (2) conform his conduct to the requirements of the law. Combines tests 1 and 2. *U.S. v. Freeman- D guilty of selling narcotics. Addicted to them, claimed he didnt know right from wrong, McNaughten test. One doctor agreed, another didnt. Found guilty because judge found that his condition didnt meet requirements of test. Distinguish the insanity test from incompetence: Insanity: was the defendant insane at the time of the crime? Incompetence: is the defendant sane at the time of the trial? p. 352. A D may not be tried, convicted, or sentenced as a result of mental disease or defect if he is unable to understand nature of the proceedings or assist his lawyer in preparing his defense. Policy: if a defendant is found not guilty by reason of insanity, he does not go free, he is committed against his will to a mental hospital. p. 349. ***Do not use incapacity as a reason to get rid of the insanity defense***

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NOTE: All Ds are assumed sane. The insanity issue isnt raised until D comes forward with some evidence showing that he was insane under applicable test. Depending on jurisdiction, his burden is carried either by mere shred of evidence, or by evidence sufficient to raise a reasonable doubt. Burden of persuasion in some jurisdictions and in MPC, once the issue has been raised, prosecution must prove D was sane beyond a reasonable doubt. In others, D must prove insanity by preponderance of evidence. Intoxication and diminished capacity p. 353 May be caused by any substance. Evidence of intoxication may be raised whenever the intoxication negates the existence of an element of the crime. Voluntary intoxication: Result of the intentional taking w.o duress of a substance known to be intoxicating. Person need not intended to become intoxicated. a. defense to specific intent crimes: Voluntary intoxication evidence may be offered when D is charged with a crime that requires purpose (intent) or knowledge to establish that intoxication prevented D from formulating intent. Good defense to specific intent crimes. b. no defense to crimes requiring malice or recklessness, negligence, strict liability. c. defense to first-degree murder but not second-degree murder. Can reduct 1st to 2nd but not 2nd to manslaughter. Vol. Intoxication cant negate criminal recklessness for depraved heart. CL says it can be a defense to specific intent crimes IF the intoxication negates the intent. Not a defense to malice, general intent, or strict liability In the context of MPC: A defense to purposefully, knowingly intentionally but not a defense to negligently, recklessly. Involuntary intoxication: taking intoxicating substance w.o knowledge of its nature, under direct duress imposed by another, or pursuant to medical advice while unaware of effect. a. may be treated as a mental illness. Acquittal if because of intoxication she meets whatever test the jurisdiction had adopted for insanity. See Montana v. Egelhoff limiting intoxication as a defense, p. 354. D killed three people in heavy state of intoxication. Remembered nothing afterwards. DIMINISHED CAPACITY, p. 355. An impaired mental condition short of insanity from intoxication, trauma, disease, and prevents a person from having the mental state necessary to be held responsible for a crime. Can also reduce the grade of a defense. Reduces Ds culpability. p. 356. United States v. Ettinger, D attacked a federal officer. Used diminished capacity to negate specific intent element of the crime. p. 356. MISTAKE AND IGNORANCE, p. 357. MPC mistake can exonerate only if it negatives a material element of the crime or if the state of mind established by mistake is not criminal. Thus, mistake is a failure of proof theory, not a general defense. Mistake must negate state of mind. Mistake or ignorance will affect criminal guilt only if it shows that D did not have state of mind required for the crime. Mistake must be reasonable. Any mistake of fact is a defense to a specific intent crime, reasonable or unreasonable. Mistake of fact: 1. The mental state of the crime 2. Whether the act was reasonable 3. A reasonable mistake is a defense to any crime except strict liability See State v. Sexton reasonableness! D pointed a pistol and said there were no bullets in it. Fired, and killed other person. Mistake! Prosecution had to prove beyond a reasonable doubt. Not a defense here.

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Perez v. State honest and reasonable belief. Unreasonable mistake is a defense only to specific intent crimes. Court ruled D should have been allowed to present evidence of mistake of fact. p.360. Mistake of law: is not a defense *Except when the statute specifically makes knowledge of the law an element of the crime *See Miller v. Commonwealth reasonable beliefs about official conduct. Found for D. p. 363. Exceptions 1. Statutes not reasonably available. Not published. 2. Reasonable reliance on statute or judicial decision. Even if statute is later declared unconstitutional or overruled. 3. Reasonable reliance on official interpretation or advice. Common law-no defense MPC-yes! 4. Reasonable reliance on advice of private counsel-only if it negates a necessary mental state element. INFANCY: being too young to prosecute, p. 367. CL: Physical age at the time of crime governs. 1. Under seven-no criminal liability 2. Under 14-rebuttable presumption of no criminal liability, clear proof that D appreciated nature and quality of his act. 3. Over 14-ADULT. The modern question: will they be prosecuted as an adult or in family court o MPC under 16 = family court o 16-17 family court judges discretion o 17 = can be prosecuted as an adult

Inchoate offenses
A criminal attempt is an effort, even if unsuccessful, to commit a crime. Not guilty unless prosecution proves elements of the offense. Mens rea and actus reus. Solicitation: asking someone to commit a crime, with the intent that they commit it A specific intent crime Completion is not necessary Doesnt matter the solicitee says no The crime is in the asking Conspiracy: an agreement between two or more people to commit a crime plus an overt act in furtherance of that crime A specific intent crime The crime is in the agreement It doesnt matter if the crime happened BUT you must have an overt act Casing the bank youre thinking of robbing Under CL you cannot have a one person conspiracy Under MPC: the unilateral rule: You can have a conspiracy if two people have an agreement, even if one of them doesnt really intend to commit the crime. This is generally in terms of undercover police officers. Vicarious liability: if you are a member of a conspiracy, you are not only guilty of the conspiracy, but all foreseeable crimes in furtherance of the crime you conspired to, by the people you conspire with, even if you did not participate in the crimes

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ATTEMPT A criminal attempt is an act that, although done with the intention of committing a crime, falls short of completing the crime. An attempt therefore consists of two elements: 1. specific intent to commit the crime 2. overt act in furtherance of that intent Intent Specific intent Attempt to commit negligent crimes is impossible Attempt to commit strict liability crimes requires intent Overt act D must have committed an act beyond mere preparation for the offense. 1. Traditional rule-proximity test: evaluate the act based on how close D came to completing offense. Attempt requires an act that is dangerously close to success. 2. MPC Test: majority test. Act or omission constitute a substantial step in a course of conduct planned to culminate in the commission of the crime. An act wont qualify as a substantial step unless it is strong corroboration of the actors criminal purpose. Defenses 1. Impossibility of success: legal impossibility is always a defense. Not a crime, even if D thinks it is but cannot be convicted. 2. Factual impossibility is no defense. Even if a key element is missing. The act requirement: - Under the CL: conduct that gets dangerously close to the commission of the crime o The dangerous proximity test  Much more difficult to satisfy than MPC  The victim the defendant and the means to commit the crime are all in the same place - Under the MPC: conduct that is a substantial step toward the commission of the crime and strongly corroborative of a criminal purpose o See U.S. v. Williamson substantial step o Obtaining illegal items to further the crime is considered a substantial step - Other historic tests: o Indispensable Element Test  attempt is incomplete if there is any indispensable aspect of the criminal act over which the actor has not yet acquired control o Probable Desistence Test  The point of no return: without the intervention of a mitigating circumstance the act would have occurred o Abnormal Step Test  Beyond the point of normal behavior, may have realized behavior was wrong and stopped o Res Ipsa Loquitor Test  If the conduct as a whole meets the test of attempt not channys fave o Overact Test  Any positive attempt to commit a crime is enough (usually used in conspiracy) The mental state: - Specific intent: defendant specifically intended for the crime to occur - You must INTEND, therefore recklessness, negligence and felony murder do not fall under attempt o You cannot attempt accidental crimes - Consider a malice crime like arson

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Acting recklessly, would be considered arson if house set fire, however attempt would not apply

The doctrine of impossibility: 2 forms Factual impossibility: the claim that it was impossible to commit the crime because of some circumstance beyond the defendants control o See People v. Thousands impossible to solicit a 40 yr. old child o NOT a defense to attempt o Attempt is based on INTENT  Consider the pick-pocket who tries to steal but the pocket is empty. Hes guilty of attempted larceny Legal impossibility: the claim that it was impossible to complete the crime because what the defendant was trying to do is not illegal o IS a defense, but rarely ever happens  Ex: buys baking powder thinking its illegal. Even though he thought he was breaking the law, its not illegal to buy baking powder, and thus legally impossible

Withdrawal: if the defendant changes his mind - Under CL withdrawal is not a defense - Vicarious liability: o If you withdraw from the conspiracy, you are still guilty of the conspiracy but not of future foreseeable crimes (as before) - MPC allows withdrawal as a defense, but only if defendant voluntarily and completely renounces the crime o Must be motivated by a change of heart and NOT for fear of getting caught o See State v. Mahoney not motivated by a change of heart Merger: when a defendant can be convicted of multiple crimes for the same act Lesser included offenses: a crime that necessarily includes all the elements of a greater crime o EX. Larceny is a lesser included offense of robbery, but not of burglary o A lesser included offense WILL MERGE with the greater offense o On the exam, note the merger, but discuss each offense thoroughly Inchoate offenses: o Solicitation and attempt merge into the greater crime  Ex. Attempted murder merges into murder o Conspiracy does not merge  If you conspired, and then committed the crime, the conspiracy is a separate offense  25:00 hour 3 great hypo

COMPLICITY Accomplice liability: you can be responsible criminally for something someone else does Principal person who commits the crime Accomplice person who helps - Aiding or Encouraging the principal with the intent that the crime be committed o See State v. Gladstone drawing a map of where to buy drugs

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A crime of specific intent, however accomplicing is not a crime, they are guilty of the principals crime, just as if they did it. They are also guilty of all foreseeable crimes committed by the principal The accomplices guilt does not depend on the principals guilt

People who are NOT accomplices - Mere presence unless you actively helped/encouraged - Mere knowledge unless you are an accessory after the fact o See U.S. v. Medina-Roman the gold standard - Members of the protected class o The victim in the crime o Ex. Statutory rape

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