Criminal Law

Two types of defenses:

1) Case in Chief: Defendant will try to challenge prosecutor's evidence (all 4 components must be presented by the prosecutor)

Building blocks of statutes:

1)Voluntary act, 2)Mental State, 3)Causation, 4)Social Harm

Voluntary Manslaughter

A charge of voluntary manslaughter may result if it is shown that the defendant committed an intentional killing of a human being and there is (1) evidence of an objectively reasonable provocation that caused defendant to kill the victim in the heat of passion (2) before there was sufficient time for the defendant to "cool off," and (3) the defendant, in fact, did not cool off.

Accomplice Liability

A defendant and a co-felon who commit a felony during which a victim is killed may both be charged with murder, despite the fact that one of them may not have actually committed the killing. Jurisdictions differ regarding whether a defendant may be held liable if a death of a co-felon results, such as from a resisting victim or a police officer. The majority rule is that the defendant will not be guilty of felony murder for the death of a co-felon.

MPC Manslaughter

A defendant is guilty of manslaughter under the MPC if he commits a criminal homicide (a) recklessly without circumstances manifesting extreme indifference to the value of human life or (b) "under the influence of extreme mental or emotional disturbance," provided there is a reasonable explanation. The reasonableness of such explanation is subjective and is determined from the viewpoint of the actor's situation under the circumstances as he believes them to be. [MPC § 210.3]

MPC Murder

A defendant is guilty of murder under the MPC if he commits a criminal homicide (a) purposely or knowingly or (b) recklessly if the circumstances manifest an "extreme indifference to the value of human life." The MPC uses the subjective approach to determine whether the defendant's reckless actions constituted a conscious disregard of a substantial and unjustifiable risk. [MPC § 210.2]

MPC Negligent Homicide

A defendant is guilty of negligent homicide under the MPC when it is shown that (1) he failed to perceive a substantial and unjustifiable risk and (2) such failure was a gross deviation from the standard of care that a reasonable person would observe in the same situation. [MPC § 210.4]

Felony-Murder Doctrine

A defendant may be charged with felony murder if a killing occurs during the commission or attempted commission of a serious felony. Generally, most jurisdictions limit the application of the doctrine to inherently dangerous crimes, namely those that, by their nature, involve a high degree of peril to life such as robbery, burglary, rape, arson, assault and battery, and kidnapping. However, some jurisdictions do not limit the applicable underlying felonies to the aforementioned list. Keep in mind that the killing must occur during the course of the underlying felony or while the felon is fleeing the scene; the felony-murder rule will not apply if the death occurs after the felon reaches a place of temporary safety. Most states require that the death have been a foreseeable consequence of the underlying felony, but courts tend to give this a broad construction.

"In Furtherance test"

A defendant may be convicted of felony murder where the evidence shows that the killing was committed in furtherance of a common design or purpose held with another perpetrator.

Larceny Trespassory taking

A defendant must take the personal property from another's possession without his consent. If the defendant is in rightful possession of the property at the time he appropriates it to his own use, there is no larceny (though the taking may constitute embezzlement).

Reckless indifference to the value of human life

A defendant who acts with reckless indifference to the value of human life, or a "depraved heart," may be found guilty of murder.

Larceny by Trick

A defendant who gains possession of property by fraud, deceit, or "trick," satisfies the trespassory-taking requirement.

Cause and fact

A defendant's conduct is the cause-in-fact, or actual cause, of the resulting harm if (1) "but for" the defendant's conduct, the harm would not have occurred or (2) the defendant's conduct was a substantial factor in bringing about the resulting harm.

Proximate Cause

A defendant's conduct must also be the proximate, or legal, cause of the resulting harm, free of superseding causes or events. In other words, the harm must be a "natural and probable" consequence of the defendant's actions. A defendant's conduct may be the cause-in-fact but not the proximate cause of the harm. Thus, the prosecution must show that the connection between the defendant's conduct and the resulting harm are sufficiently closely related that it would be unfair not to hold the defendant liable for the harm. Keep in mind that a victim's preexisting condition that exacerbates the harm caused by the defendant's conduct will not break the causal chain.

MPC 2)Knowingly

A person acts knowingly if he is aware that his conduct is of a specific nature or will result in certain consequences. [MPC § 2.02(2)(b)] The test is subjective—whether the defendant actually knew or believed that his actions would result in the specific consequences. Note that a defendant who deliberately remains ignorant despite awareness of a high probability that the facts or circumstances exist will still be found to have hand knowledge.

MPC 4)Negligently

A person acts negligently when he should be aware of a substantial and unjustifiable risk that the circumstances exist or the prohibited act will result from his conduct. The risk must be of such a nature and degree that the actor's failure to perceive it, considering the nature and purpose of his conduct and the circumstances known to him, involves a gross deviation from the standard of care that a reasonable person would observe in the defendant's situation. [MPC § 2.02(2)(d)]

MPC 1)Purposefully

A person acts purposefully if it is his conscious object that his action causes a certain result. [MPC § 2.02(2)(a)]

MPC 3)Recklessly

A person acts recklessly when he consciously disregards a substantial and unjustifiable risk that harm will result from his conduct. The risk must be of such a nature and degree that, considering the nature and purpose of the actor's conduct and the circumstances known to him, its disregard involves a gross deviation from the standard of conduct that a law-abiding citizen would observe in the same situation. [MPC § 2.02(2)(c)]

Strict liability

A strict liability offense requires no proof of mens rea. Instead, it must be shown that the defendant merely committed the prohibited act, regardless of his mental state.

Accessory

An accessory to a crime is an accomplice who is not present during the commission of the crime but aids, encourages, or assists in the commission of the offense and is as criminally liable as the principal. It is important to note that many state statutes and the MPC have abandoned the distinct categories mentioned below in favor of a broad category of accomplice liability. [See MPC § 2.06] 1. Accessory Before the Fact An accessory before the fact is one who aids, abets, counsels, commands, or encourages the commission of a felony. The following elements must be satisfied before a defendant may be found guilty of aiding and abetting the commission of a crime: a. Completion of the Crime The crime intended to be committed must, in fact, be completed. b. Encouragement or Assistance The accessory must encourage or aid in the commission of the crime. c. Intent to Commit the Crime The defendant must have the requisite mens rea to engage in an illegal course of conduct for the purposes of committing the target offense. 2. Accessory After the Fact An accessory after the fact is one who provides assistance to the principal after the crime has been committed for the purpose of helping the offender to avoid apprehension, detection, or prosecution. Generally, the accessory after the fact is not liable for the substantive offense committed by the principal.

Omission

An omission means a failure to act. [MPC § 1.13(4)] A defendant may not be held liable for an offense based on an omission unless there was: (1) a legal duty to act imposed by law; (2) a special relationship between the parties, such as between a parent and a child; (3) a duty to act that arises out of contract requirement; or (4) a voluntary undertaking to provide assistance to a person in peril. In addition, an individual will not be liable for failing to perform an act of which he is physically incapable. [See MPC § 2.01(3)]

Intervening Acts

An unforseeable, intervening act breaks the causal connection between the defendant's conduct and the resulting harm. Note that negligent medical treatment is generally deemed to be a foreseeable consequence of harming a victim and will not cut off the defendant's criminal liability; grossly negligent or reckless medical treatment will break the causal connection.

Arson

Arson is the malicious burning or exploding of a dwelling or building of another.

Voluntary Manslaughter Heat of Passion

As a result of the provocation, the defendant must immediately act in the heat of passion before he has had time to cool off. A defendant acts in the heat of passion if he acts impulsively based upon some sort of extreme emotional disturbance.

Burglary Intent to Commit a Felony

At common law, a conviction for burglary required that the defendant intend to commit a felony once inside the dwelling. However, this requirement has been modified by many states to allow a burglary charge so long as the defendant intended to commit at least a misdemeanor after breaking and entering.

Burglary Dwelling or Building

At common law, burglary could only be committed on a dwelling. However, all states now define burglary to include breaking and entering into a dwelling or any other type of structure.

Rape

At common law, rape was generally defined as the unlawful sexual intercourse with a woman without her consent by means of fear, force, or the imminent threat of force by a man who was not her husband. Modern statutes have redefined rape and sexual assault as gender-neutral crimes, meaning that there is no longer a requirement that the victim be female. Many jurisdictions have also done away with the requirement that the intercourse be accomplished by force. In addition, many states have modified their rape statutes to allow for a rape conviction when the act was perpetrated by the victim's spouse, at least if the couple is separated. 1. Mens Rea Required Rape is a general intent crime, which means that the prosecution must prove beyond a reasonable doubt that the defendant intended to engage in an act of sexual intercourse with the victim, not that the defendant intended the intercourse to be non-consensual. Only mental state which we are looking at is the intent to do the act (voluntarily engaged in act). 2. Without Consent For a defendant to be convicted of the offense, there must be sufficient evidence that the sexual intercourse was performed without the victim's consent. At common law, this often required that the intercourse be accomplished by force, threats of serious bodily harm, or, rarely, fraud regarding whether the act was intercourse or the perpetrator was the victim's husband. Modern statutes recognize that a victim may be incapable of consenting, such as when the victim is unconscious. 3. Use of Fear or Force For the purposes of rape, a defendant's use of force or threats of force may be express or implied. Further, a victim's lack of consent may be established by proof that the victim failed to resist due to a genuine and reasonably grounded fear. Some states have done away with the force or threat requirement altogether, favoring an approach based purely on the victim's lack of consent. a. Resistance by Victim Generally, a rape victim is not required to use physical force to resist a defendant's attempt to have non-consensual sexual intercourse. Any resistance that demonstrates a victim's lack of consent shall suffice.

Burglary At Night

At common law, the breaking and entering had to take place at night. All states have since removed this element of the offense.

Types of Offenses:

At common law, the most serious offenses were classified as felonies, and less serious offenses were classified as misdemeanors. Under modern statutes, a criminal offense may be classified as a felony, misdemeanor, petty misdemeanor, or a violation. [MPC § 1.04] A felony is considered a serious offense and is generally punishable by a term of imprisonment in excess of one year, a sentence of death, or a fine. [MPC § 1.04(2)] A misdemeanor is less serious than a felony and is generally punishable by fine or imprisonment for less than one year. [MPC § 1.04(3)] Similar to a misdemeanor, a petty misdemeanor is generally defined by a statute and imposes punishment upon a defendant for a maximum term in prison of one year. [MPC § 1.04(4)] A violation is a minor breach of the law and is typically punishable by a fine only; a person convicted of a violation is not considered to have committed a crime. [MPC § 1.04(5)]

Assault and Battery

Battery is defined as contact that causes either bodily injury or an offensive touching. Assault is generally defined as an intentional act such as a threat or use of force that places a person in reasonable apprehension of immediate harmful or offensive contact. Some jurisdictions combine assault with battery. Others include an attempted battery within the definition of assault.

Burglary

Burglary is defined as the breaking and entering of a dwelling or building with the intent to commit a felony therein. Note that if a defendant enters the dwelling or building with the rightful owner or possessor's consent, no burglary has occurred.

Defenses of Others

C. Defense of Others An individual may use such force as is reasonably necessary to protect others from imminent bodily harm. [See MPC § 3.05(1)] Consistent with self-defense principles, the defendant must reasonably believe that the third person has a right to self-defense and that the force used is proportional and necessary to defend another from the imminent and unlawful use of force. 1. Duty to Retreat Many courts hold that a defendant may not use deadly force in the protection of another if the person being defended can safely retreat. However, if retreat is not possible, courts typically find that a defendant may use force to defend another who is being attacked. 2. Mistake Jurisdictions are split regarding whether a defendant may successfully raise the defense if he is mistaken about the other's right to self-defense. a. Alter-Ego Rule A few states subscribe to the alter-ego rule, which provides that a defendant may use force only if the victim had a right to use force under the same circumstances. Under this rule, if the defendant is mistaken in his belief about the threat, then the defense is not available. b. Modern Approach Most states have abandoned the alter-ego rule in favor of a reasonableness test. Under this test, so long as the defendant reasonably believed that the force used was necessary to protect another, even if the belief was mistaken, the defense is available.

Causation

Causation-(most important component) must cause the result (doesn't matter how bad mental state is or if your involved in voluntary act). Direct cause-and proximate cause. The prosecution must sufficiently prove that the defendant's criminal conduct was the cause-in-fact and the proximate cause of the result.

Defenses of Property and Habitation

Consistent with self-defense principles, an individual may use non-deadly force that is reasonably necessary to prevent the unlawful interference with his real or personal property. The use of deadly force is permitted only where the interference with property is accompanied by a threat of deadly force to a person or where the unlawful interference involves an invasion of an occupied dwelling under circumstances warranting a belief that the defendant must use deadly force to protect himself or others. [See MPC § 3.06] 1. Spring Guns While a property owner may utilize non-deadly devices, such as a barbed-wire fence, to protect property from outside intrusion, a property owner may not employ a mechanical device known as a "spring gun" or "trap gun," or a similar deadly device, to protect his property. A spring gun is typically a loaded handgun, shotgun, or rifle that is pointed at the front door or entryway of a dwelling. A string is attached from the trigger to the door knob. When the door is opened, the gun discharges. 2. Habitation Extends Beyond Dwelling Some courts apply defense of habitation principles not only to an individual's dwelling but also to whatever place he may be occupying, such as a hotel, motel, or the home of another. 3. Reentry on Land At common law, a defendant could use reasonable, non-deadly force to immediately reenter his own land after unlawful interference by another. Under the MPC, a defendant may use reasonable, non-deadly force to reenter his land even if significant time has elapsed since the taking, so long as the party in possession has no claim of right and waiting for a court order would cause exceptional hardship. [MPC § 3.06(1)(b)(ii)] 4. Recapture of Personal Property Generally, a defendant may use reasonable, non-deadly force to recapture or retake personal property unlawfully taken from him, so long as it is done immediately following the taking. 5. Duty to Retreat Generally, most courts hold that a defendant is not required to retreat and instead may use deadly force against one who has made unlawful entry to the defendant's dwelling and reasonably appears to pose an imminent danger of harm to individuals inside. However, a defendant may not "lay in wait" outside the dwelling for the purposes of ambushing or attacking a would-be assailant.

Conspiracy

Conspiracy is an agreement between two or more people to commit an unlawful act at some point in the future. Generally, a conspiracy conviction requires at least one overt act in furtherance of that agreement. Unlike attempt, the crime of conspiracy does not merge with the target offense. 1. An Agreement At the heart of conspiracy is the existence of an agreement for the joint purpose of committing a crime. All that is required is that the parties to a conspiracy communicate their intent to engage in a joint, illegal course of conduct. However, jurisdictions differ regarding whether conspiracy requires the actual agreement of more than one person, referred to as the bilateral theory of conspiracy, or only one person's intent to agree to commit the offense (such as where a person agrees to commit a crime with an undercover police officer), referred to as the unilateral theory. 2. Two or More People Except as discussed above [See VI.B.1, supra], conspiracy requires an agreement between two or more people to participate in illegal conduct. 3. Intent to Commit a Crime The parties to a conspiracy must have the mens rea required for the target crime. a. Specific Intent Crimes The parties to a conspiracy must agree to commit the particular underlying or target offense, such as first-degree murder, assault, burglary, or larceny. Jurisdictions are split regarding whether two or more individuals can conspire to engage in spontaneous, reckless, or negligent conduct that serves as the basis for the object crime. 4. An Overt Act At common law, the crime of conspiracy is complete once the parties reach an agreement to commit a crime. However, the MPC and most states require that at least one party to the conspiracy complete an overt act in furtherance of the conspiracy. [See MPC § 5.03(5)] It is not necessary that the act be attributable to all members of the conspiracy. 5. Wharton's Rule Although completely rejected by the MPC, "Wharton's Rule" prevents a defendant's conviction for conspiracy to commit a crime that only two or more people can commit. Classic examples of such crimes include bigamy, dueling, and adultery. One exception to Wharton's Rule is that an individual cannot be shielded from a conspiracy conviction where there are more participants than necessary to complete the crime. 6. Multiple Conspiracies Generally, a defendant may be convicted of multiple conspiracies if he entered into more than one agreement to commit various crimes and commits acts in furtherance of each separate agreement. 7. End of the Conspiracy A conspiracy continues until the parties to the unlawful agreement complete the conspiratorial objective, a government agency intervenes into the ongoing conspiracy, or one or more of the conspirators withdraws from or abandons the conspiracy. a. Completion of the Conspiratorial Objective A conspiracy is a continuing course of conduct that terminates when the substantive crime is committed by the conspirators, at which time the statute of limitations begins to run. b. Statements of Co-Conspirators Federal Rule of Evidence 801(d)(2)(E) provides that a statement is not hearsay if it is made by a co-conspirator of a defendant, so long as the statement was made during the course and in furtherance of the conspiracy. c. Government Intervention Generally, a conspiracy does not automatically end when government officials become involved. d. Renunciation Under the MPC, "[i]t is an affirmative defense that the [defendant], after conspiring to commit a crime, thwarted the success of the conspiracy, under circumstances manifesting a complete and voluntary renunciation of his criminal purpose." [emphasis added] [MPC § 5.03(6)] However, the renunciation must be explicit and unambiguous as to the defendant's intent. e. Abandonment and Withdrawal A conspiracy is complete as soon as the unlawful agreement is made among the co-conspirators. Therefore, it is no defense to the conspiracy charge that a defendant abandons or withdraws from the conspiratorial agreement. Generally, a conspiratorial agreement may end when it is abandoned by a co-conspirator who does not perform an overt act in furtherance of the ongoing conspiracy. If successful, the co-conspirator will not be liable for any subsequent crimes committed by the remaining co-conspirators after the co-conspirator's withdrawal. Under the MPC, the conspiracy ends as to that specific co-conspirator only if he informs his other co-conspirators or law enforcement. [MPC § 5.03(7)(c)] If all members of the conspiracy agree to abandon the unlawful scheme, the conspiracy ends. A similar rule applies to the withdrawal from the conspiracy by a co-conspirator.

Corpus Delecti

Corpus delicti is a Latin term meaning "body of crime" that refers to the requirement that the prosecution produce actual evidence that the crime has been committed before the defendant may be convicted. An actual body need not be produced in order for a defendant to be convicted of murder. Instead, death may be shown by circumstantial evidence.

Defenses-Justifications

Defenses: Justification There are two general categories of defenses to a criminal charge: justification and excuse. Under a justification defense, a defendant admits he committed the unlawful act but asserts that the action taken was good, moral, or desirable. Justification defenses include necessity, self-defense, defense of others, defense of property, and law enforcement-related conduct. A. Necessity A defendant who commits a criminal act in an emergency in order to avoid some greater harm may assert that the conduct is justified on the basis of necessity. Often referred to as the choice of two evils defense, the defense of necessity at common law generally required that (1) the criminal act must have been committed in order to prevent an imminent and substantial harm from a non-human cause (no longer a requirement in many jurisdictions), (2) there must have been a lack of an alternative, and (3) the harm caused must be less than the harm avoided. [See MPC § 3.02(1)] B. Self-Defense Generally, an individual has a right to use force to protect himself from the imminent use of unlawful force by another person. Most jurisdictions require that a defendant use no more force than is reasonably necessary to protect the defendant from harm. Deadly force may only be used when necessary to repel an imminent attack likely to cause substantial bodily injury or death. 1. Non-Deadly Force A defendant may use non-deadly force upon another if he reasonably believes such force is necessary to protect himself from the imminent use of unlawful force by another person. a. Reasonable Belief An individual must have an objectively reasonable belief that the use of force is necessary to repel an imminent, threatened harm. Some jurisdictions allow the defense to be raised by a defendant even when the defendant honestly, but unreasonably, believed that force was necessary to repel a threat; this is known as imperfect self-defense and may result in a reduced charge or lesser sentence. b. Imminent Use of Unlawful Force An individual may raise a self-defense claim only if the defendant sought to resist the imminent use of unlawful force, such as a crime being committed by the aggressor. c. Limitations on Use of Force The defendant must only use such force as is necessary to repel the attacker. If the attacker is using force that may cause serious bodily injury or death, the defendant may use deadly force to resist the attack. However, if the defendant uses deadly force to repel non-deadly force, such force will likely be deemed unlawful. 2. Deadly Force A defendant may use deadly force to repel an attacker only if he reasonably believes such force is necessary to prevent the imminent use of force likely to cause death or great bodily harm. However, the use of deadly force is not allowed in a defense of property case, unless the defendant is in an occupied dwelling and faced with the reasonable belief that deadly force is necessary to protect himself or others. [See IX.D, infra] 3. The Model Penal Code The MPC provides that a defendant's use of non-deadly force is justifiable when the actor believes that such force is immediately necessary for the purpose of protecting himself against the use of unlawful force by another. [MPC § 3.04(1)] Further, the MPC states that the use of deadly force is justifiable if the defendant believes that such force is necessary to protect himself against death, serious bodily injury, kidnapping, or sexual intercourse compelled by force or threat. [MPC § 3.04(2)(b)] 4. Duty to Retreat Generally, a defendant may use non-deadly force without being required to retreat, even if it would be safe to do so. Under the common law, an individual is required to retreat if it can be done safely before using deadly force to resist an attacker. However, most states no longer require that a defendant retreat and now permit a defendant to stand his ground and use deadly force whenever it is reasonably necessary to save him from an imminent threat of serious bodily injury or death. a. Stand Your Ground Laws A minority of states have codified "Stand Your Ground" laws that allow an individual to use deadly force against an aggressor without the need to retreat. b. Castle Doctrine The castle doctrine provides that a person who is inside his home or its curtilage is under no duty to retreat before using deadly force to protect himself, his home, or its curtilage from an attack by an intruder. However, the doctrine is not available to a defendant who is the initial aggressor. 5. Defendant as Aggressor Generally, a defendant is not entitled to claim self-defense if he is the initial aggressor in the altercation. There are two exceptions: (1) when the defendant provokes an altercation using non-deadly force and is met by the use or threat of deadly force from another, or (2) if the defendant provokes an altercation and then subsequently abandons or withdraws from the confrontation and provides reasonable notice to the other party of his abandonment or withdrawal. 6. Mistake Typically, the principles governing mistake of fact [see VIII.A. supra] apply to self-defense claims. Mistake of fact is generally a valid defense if the mistake negates the existence of the mental state required for the crime to be proved beyond a reasonable doubt. 7. Use in Battered Woman Syndrome Cases Historically, courts have been unwilling to recognize self-defense in a case where a wife kills her husband in response to consistent and repeated physical, emotional, and psychological abuse, often referred to as "battered woman syndrome." In many of these cases, defendants attempting to utilize the defense have had difficulty showing that there was a reasonable belief as to the imminent need to use deadly force to repel an attack, because the killing occurs sometime other than when the defendant is under attack, such as when the husband is sleeping. In recent years, however, the majority of jurisdictions have been more willing to consider battered woman syndrome a valid defense.

Premeditation and Deliberation

Deliberation-requires a cool mind that is capable of reflection Premeditation-that requires that the one with the cool mind did in fact reflect, at least for a short period of time before his act of killing.

Embezzlement

Embezzlement is generally defined as the wrongful appropriation or fraudulent conversion of another's property by a person who is in a position of trust, such as an agent or employee. 1. Embezzlement v. Larceny Larceny requires that the defendant have the intent to permanently deprive the rightful owner of possession of the property taken. Conversely, embezzlement requires that the defendant have been lawfully entrusted with the property he later converts to his own use.

Intent to cause serious bodily harm or grievous bodily harm.

Even if the defendant did not intend to kill the victim, the mental state of malice aforethought will be satisfied if the defendant intended to cause grievous bodily harm to the victim.

Extortion

Extortion, or blackmail, is the obtaining of property by threat of some future harm, usually physical or financial, if a victim fails to comply with some demand. In some jurisdictions it is not necessary for the defendant to have the ability to follow through on his threats.

Forgery

Forgery is the creation or alteration of a fake writing or document with the intent to defraud. At common law, using a forged document was the separate offense of uttering a forgery, which consisted of offering a forged instrument as if it were real with the intent to defraud.

Mental State 1)General v. specific intent crimes

General v. Specific Intent Crimes A general intent crime is one in which the defendant desired to commit the act that served as the actus reus. A defendant who intends to do the act may be convicted of a general intent crime even if he did not intend to cause the result. A specific intent crime is one in which the defendant not only intended to commit the act that served as the actus reus, but something further, such as bringing about a particular result. Specific intent crimes include: assault, burglary, embezzlement, false pretenses, first-degree premeditated murder, forgery, inchoate crimes (attempt, conspiracy, and solicitation), larceny, and robbery.

Solicitation

Generally, a defendant is guilty of solicitation if he intentionally invites, requests, commands, encourages, or counsels another person to engage in conduct constituting a felony or a misdemeanor involving a breach of the peace.

Common Law Murder

Generally, murder is defined under the common law as the unlawful killing of a human being with malice aforethought. Malice aforethought is a predetermination, or intent, at the time of a killing to willfully take the life of another or cause that person grievous bodily harm or an intent to willfully act in wanton disregard of the consequences to human life.

Parties to a Crime

Generally, those individuals involved in the commission of a crime can be categorized as being a principal actor, an accomplice or aider and abettor, or an accessory. Some jurisdictions consolidate the categories into principal liability and accomplice liability. A. Principal Actor The principal actor is the individual who possesses the requisite mens rea and commits the actus reus of the particular offense. B. Accomplice An "accomplice" is one who knowingly and intentionally provides assistance or aid to another (the principal) in the commission of a crime. Typically, an accomplice is present at the time the offense is committed and may be criminally liable to the same extent as the principal. [See also MPC § 2.06(3)] 1. Mens Rea The accomplice must have the same requisite mental state to commit the target offense as the principal, which may evolve as the co-felons commit their illegal conduct. 2. Assistance Provided The accomplice must, with the requisite mens rea, knowingly and voluntarily engage in conduct that assists the principal in the commission of the substantive crime. It is not necessary that the accessory commit the specific actus reus of the offense. 3. Presence at the Scene of the Crime An individual's presence at the scene of a crime alone is insufficient to make that person an accomplice. Rather, the individual must provide encouragement or assistance to the principal. 4. Liability Generally, an accomplice will not be found guilty of aiding the principal actor unless the principal is found guilty of the substantive crime. Jurisdictions are split regarding whether an individual is criminally liable for participating in a felony as a feigned accomplice in order to entrap another for the felony. 5. Natural and Probable Consequences An accomplice will generally be liable for additional crimes committed by the principal actor if (1) the additional offenses are the natural and probable consequence of the criminal conduct and (2) the crime or crimes are committed in furtherance of the originally planned crime. 6. Withdrawal Generally, withdrawal is a defense to accomplice liability if the individual reverses any assistance he may have provided up to that point. The accomplice must make it explicitly clear to the principal that he is repudiating any past assistance and is no longer providing any assistance, encouragement, or aid to the planned crime. Often, courts require that the accomplice take an affirmative step or substantive action to warrant an effective withdrawal. 7. Victims as Accomplices A victim of a crime is generally not subject to accomplice liability.

Grand Jury

Grand Jury only hears the prosecutor's evidence. Set up to make sure the charges are accurate.

Highest presumption known to law

Highest presumption known to law-"presumption of innocence".

Murder

In many jurisdictions, the crime of murder has been segregated into first-degree murder and second-degree murder.

First-Degree Murder

In most jurisdictions, a defendant who acts with malice aforethought and with premeditation and deliberation to kill another human being will be convicted of first-degree murder.

Inchoate Offenses

Inchoate offenses are those that are anticipatory or preparatory in nature and for which an individual can be held criminally liable without the successful completion of the crime. There are three inchoate offenses: attempt, conspiracy, and solicitation. A. Attempt An attempt occurs when a defendant, with the intent to commit the substantive crime, engages in a course of conduct that involves more than mere preparation but does not result in the successful completion of the crime. 1. Mens Rea The defendant must possess the specific intent to commit the substantive crime. 2. Actus Reus The defendant must engage in conduct or perform an overt act that involves more than mere preparation toward completion of the crime. Different jurisdictions employ different tests to decide whether a defendant's conduct comes close enough to the crime to sustain a conviction for attempt. Note that the same conduct could constitute attempt under one test but fall short of the crime under another. a. Substantial Step Approach The majority of states utilize the "substantial step" approach, whereby the defendant must perform an act or omission constituting a substantial step in a course of conduct planned to culminate in the commission of the crime. [See MPC § 5.01(1)(c)] Generally, a substantial step must be conduct strongly corroborative of the firmness of the defendant's criminal intent. Under the MPC, the following conduct would suffice as a substantial step: 1) "lying in wait, searching for or following the contemplated victim of the crime"; 2) "enticing or seeking to entice the contemplated victim to go to the place contemplated for its commission"; 3) "reconnoitering the place contemplated" for the crime's commission; 4) "unlawful entry of a structure, vehicle or enclosure in which it is contemplated that the crime will be committed"; 5) "possession of materials to be employed in the commission of the crime," including those that serve no lawful purpose other than for illegal activity; 6) "possession, collection or fabrication of materials to be employed in the commission of the crime, at or near the place contemplated for its commission," including if same serves no lawful purpose; and 7) "soliciting an innocent agent to engage in conduct constituting an element of the crime." [MPC § 5.01(2)(a)-(g)] b. Proximity Approach Under the "proximity" approach, a defendant must perform an overt act that is sufficiently close to the completion of the intended crime.

Insanity

Insanity-arises from a mental disease or defect. Must have a diagnosed mental disease/defect (affirmative defense-affirming but have an excuse) Many states do place "burden of proof on defense".

Involuntary Manslaughter

Involuntary manslaughter is defined as the unintentional killing of a human being without malice aforethought. Most jurisdictions require evidence that a defendant's conscious disregard of a substantial and unjustifiable risk of which he was aware resulted in the death.

Kidnapping

Kidnapping is the forcible abduction or unlawful confinement and movement of another against the person's will. In some states, concealing the victim may be sufficient to satisfy the movement element.

Larceny

Larceny is defined as the trespassory taking and carrying away of the personal property of another with the intent to steal. Larceny only applies to the taking of personal property, not real property or intangibles.

Malice Aforethought

Malice aforethought is a predetermination, or intent, at the time of a killing to willfully take the life of another or cause that person grievous bodily harm or an intent to willfully act in wanton disregard of the consequences to human life.

Common Law Manslaughter

Manslaughter is the unjustifiable and inexcusable killing of a human being without deliberation, premeditation, or malice. Manslaughter may be either voluntary or involuntary.

Negligent Homicide

Many states have codified negligent homicide. Criminally negligent homicide results from a defendant's failure to perceive a substantial and unjustifiable risk, where such a failure is a gross deviation from the standard of care that a reasonable person would observe in the same situation. Note the difference between negligent homicide and involuntary manslaughter: involuntary manslaughter requires a showing that the defendant acted with awareness and conscious disregard of a substantial and unjustifiable risk of death. Conversely, criminally negligent homicide results from a defendant's failure to perceive a substantial and unjustifiable risk, where such a failure is a gross deviation from the standard of care that a reasonable person would observe in the same situation

Felony Murder

Many states specifically enumerate the crimes for which a felony-murder charge is available. Typically, a killing during the commission of an enumerated felony is treated as first-degree murder, though some states permit a second-degree murder charge for a killing in the commission of a non-enumerated felony.

Mental State

Mental State-concerned about what this person is thinking. Not enough to find mental state but how bad it was. Needs to concur at the same time with voluntary act. Those without mental state are strict liability claims.

Morally blameworthy

Morally blameworthy. (Person fails to live up to the standards)-we as a society condemn you.

Burglary Entry

Most jurisdictions hold that any portion of a defendant's body that enters a dwelling or building is sufficient to constitute entry for purposes of a burglary conviction. Entry may also occur if the defendant puts an object inside the building.

Other Crimes

Other substantive criminal offenses include: burglary, assault and battery, rape, kidnapping, arson, and possession offenses.

Possession Offenses

Possession requires that a defendant exhibit occupancy or control of property for a sufficient amount of time that the defendant could have terminated her possession. Possession may be either actual or constructive and frequently involves a defendant being in possession of narcotics, controlled substances, or firearms. 1. Actual Possession A defendant is in possession of a controlled substance or firearm when he knowingly possesses it or has reason to know that he is in possession of it. 2. Constructive Possession Generally, constructive possession requires that the defendant possess the ability to exercise control over the thing, with awareness of that ability, for a sufficient period of time.

Receiving Stolen Property

Receiving stolen property is generally defined as the receipt of stolen property with knowledge that the property was stolen by another and the intent to permanently deprive the owner.

Robbery

Robbery is generally defined as larceny committed with two additional elements: the property is taken (1) from the person or presence of the owner (2) by use of force or by putting the owner in fear. 1. Person or Presence of Owner The defendant must obtain the property from the person or presence of the owner. 2. Use of Force or Fear The defendant must use force or place the owner in fear of imminent serious bodily injury or death to obtain the property. Some jurisdictions hold that it is sufficient for a defendant to intimidate an owner. 3. Claim of Right Generally, a defendant's statement that he possessed a good faith claim of right to take the property from the owner is not a defense to robbery. 4. Armed Robbery Armed robbery is an aggravated form of robbery in which the defendant uses a deadly weapon to effectuate the taking. This is sometimes called aggravated robbery and carries heightened penalties.

Social Harm

Social Harm-harmful result. Trying to prevent people from losing their lives unjustifiably, prevent people from taking others property without their consent.

Rape Shield Laws

Some states have enacted statutes that limit or prohibit the introduction of evidence of a rape victim's prior sexual conduct. [See also Fed. R. Evid. 412]

Standard of Proof

Standard of proof-"beyond a reasonable doubt" (highest burden known to law).

"Statutes"-penal code

Statutes give us certainty (can't be charged for a crime not in the statute and it must have a punishment). Because law is out there it is knowable (never a defense). Law can be proactive-look at conduct that is occurring and deal with it without having to wait for a case to happen.

Statutory Rape

Statutory rape is the unlawful sexual intercourse between an adult and a person below the age of legal consent. The age of consent is set by statute and varies from one state to the next, but most states set the age at around 16. Many states treat the offense as a strict liability crime and hold that a defendant's honest mistake or reasonable belief that the victim was over the age of legal consent is not a defense. Other jurisdictions and the MPC allow a defendant's reasonable belief that the victim was over the age of legal consent to be a defense. [See MPC § 213.6 (It is a defense for the actor "to prove by a preponderance of the evidence that he reasonably believed the child to be above the critical age.")]

Model Penal Code Approach

The MPC largely did away with common law definitions of homicide. Under the MPC, a person commits criminal homicide if he purposefully, knowingly, recklessly, or with criminal negligence, causes the death of another human being. [MPC § 210.1]

Burglary Breaking

The breaking requirement may be actual or constructive. At common law, some jurisdictions required that the defendant break something in order to gain entry. Most state statutes have since removed this requirement. Those that retain it will likely construe it broadly, so that using even slight force to enlarge an existing opening (like raising an already-open window) is sufficient. A constructive breaking occurs when the defendant obtains entry through threat of violence, fraud, or conspiracy.

Second-Degree Murder

The common law definition of murder—the unlawful killing of a human being with malice aforethought—is considered second-degree murder under most modern statutes. Likewise, a defendant who acts with malice aforethought, intending to cause serious or grievous bodily harm, but without possessing the intent to kill, may be found guilty of second-degree murder.

False Pretenses

The crime of false pretenses is generally defined as obtaining title to property of another by means of misrepresentation of a past or present fact with knowledge of the misrepresented fact and the intent to defraud. False Pretenses v. Larceny Larceny is the taking and carrying away of the personal property of another without the owner's consent. The crime of false pretenses, on the other hand, is the false representation of a material fact with the intent to defraud the owner of title and possession to the property taken. Larceny is concerned with possession, whereas the crime of false pretenses is concerned with title to the property.

Larceny Carrying Away

The defendant must carry the property away. This is called asportation. Even the slightest distance will suffice, so long as every portion of the property has moved. Some jurisdictions only require the defendant to bring the property under his dominion and control without physical movement.

Larceny Intent to Steal

The defendant must possess the specific intent to permanently deprive the rightful owner of possession of the property taken. The taking of property for a temporary purpose with a bona fide intention of returning the property to the owner does not amount to larceny.

Murder Actus Reus

The defendant's act or conduct must be proven to be the instrumentality that results in a victim's death.

Murder Cause and Effect, Proximate Cause

The defendant's actions must be shown to be the actual and legal cause of the victim's death. It is not necessary that the victim die immediately for the defendant to be guilty of murder. Most jurisdictions require that the victim die within a year and a day of the defendant's act. Historically, most jurisdictions concluded that death occurred when the victim's heart stopped beating. However, cessation of brain activity, or brain death, is becoming more widely recognized as the point of death.

Merger

The doctrine of merger provides that if a defendant's conduct satisfies the element of two different crimes, the offenses will merge. In that case, the defendant will only be charged with the greater of the two crimes (not both). The doctrine of merger also applies to the inchoate crime of attempt. If the defendant successfully completed the intended crime, the merger doctrine combines the attempt with the substantive offense. Consequently, a defendant cannot be charged with both attempt and the completed offense, such as attempted robbery and robbery.

Mental State 3)Transferred intent

The doctrine of transferred intent allows for imposition of criminal liability upon a defendant who intends to harm one person but actually causes harm to an unintended victim.

Larceny Of Another

The property taken must be property that belongs to another who has rightful possession of it at the time of the taking. In other words, a bailee or someone else with lawful possession of the property cannot be guilty of larceny for taking it. Keep in mind that there is a distinction between possession and custody, which entails much less control over the property. For exam purposes, remember that employees are generally deemed to have only custody, not possession, of their employers' property.

Larceny Personal Property

The property taken must be tangible. A defendant cannot commit larceny of real property, intangible property, or services. Additionally, some jurisdictions hold that a person's private medical information is not a "thing of value" that will subject a defendant to a charge of larceny for taking it.

Murder Mens Rea

The prosecutor's obligation to prove that the defendant acted with malice aforethought is satisfied by showing that the defendant possessed: 1) an intent to kill; 2) an intent to cause serious or grievous bodily injury; 3) a reckless indifference to the value of human life; or 4) an intent to commit a specific, enumerated felony (the felony murder doctrine).

Intent to Kill

The requirement that the defendant act with malice aforethought will be satisfied if the defendant actually intended to kill the victim.

Voluntary Manslaughter Cooling-off Period

The time period between the provocation and the defendant's act must be so short that a reasonable person in the same situation would not have "cooled off" and regained composure.

Property Crimes

There are six traditional property crimes: larceny, robbery, extortion, embezzlement, receiving stolen property, and false pretenses. The related crime of burglary, which is the breaking and entering of a dwelling or building with the intent to commit a felony, usually larceny, therein, is discussed more fully below [See V.A, infra]

Impossibility, Abandonment, and Renunciation

There are two general defenses asserted to a charge of attempt: impossibility and abandonment of the offense, which is sometimes called renunciation. a. Impossibility Generally, there are two types of impossibility defenses. One defense claims that the crime committed was factually impossible. The other is that the crime was legally impossible. i. Factual Impossibility A defense of factual impossibility occurs when the defendant's objective is criminal in nature, but some physical or factual circumstance unknown to the defendant prevents him from bringing about the crime. Classic examples of factual impossibility include an attempt to pick an empty pocket, an attempt to kill with an unloaded weapon, or an attempt to steal from an empty house. Most jurisdictions do not allow a defense of factual impossibility. ii. Legal Impossibility A defense of legal impossibility is raised by a defendant who claims that the crime committed was not actually a crime at all. This is true even if the defendant possessed the requisite mens rea to commit the purported offense at the time of the conduct. Legal impossibility is a valid defense. b. Abandonment To sustain the defense of abandonment, the defendant must sufficiently show that he affirmatively took steps to completely abandon the particular course of criminal conduct. Jurisdictions are split on whether abandonment is a permissible defense, but the majority rule is that abandonment is not a valid defense to attempt. However, abandonment, sometimes called renunciation, is a defense under the MPC, provided that the defendant: (1) abandoned all efforts to commit the crime or otherwise prevented it from being committed and (2) exhibited conduct that manifests a complete and voluntary renunciation of the criminal purpose. [MPC § 5.01(4)] If a defendant is simply interrupted before he is able to complete the crime, however, the defense is not permitted.

Voluntary Manslaughter Adequate Provocation

There must have been adequate provocation that caused the defendant to act for a charge of murder to be reduced to voluntary manslaughter. The appropriate test is whether a reasonable person in the same circumstances as the defendant would have also been provoked and acted similarly. The quintessential example of adequate provocation is finding a spouse in bed with someone else. Mere words are generally insufficient to constitute adequate provocation.

Felony Murder Three theories:

Three theories: Felony murder theory 1=Proximate Cause Theory (Nebraska)-Person who sets in motion the chain of events is responsible for any death that occurs in the course of the felony (whether they directly caused it or not). when men who are feloniously shot at by robbers return their fire in self-defense and a third person is killed by a shot fired by the defenders, are the robbers whose felonious action caused the shooting guilty of murder? Felony murder theory 2=Direct Cause Theory-must directly cause death. Felony murder theory 3=Modified Proximate Theory=can't be charged with co-felons death.

Unconcsiousness

Unconsciousness-does not necessarily arise from a mental disease or defect. Although always containing a mental component in the form of loss of cognitive functioning, the causes are diverse: epilepsy, concussion, gunshot wounds, somnambulism, coronary episodes, and certain brain disorders. Additionally, these unconscious disorders tend to be acute, unlike most cases of insanity which are typically chronic. Because cases of unconsciousness are temporary, they do not normally call for institutionalization, which is the customary disposition following a successful insanity defense. (Broad side attack against the voluntary act component-better to view this defense as eliminating the voluntary act requirement rather than negating the mental component of crimes.) Only has to be introduced as evidence. If a defendant was sufficiently apprised and aware of the condition and experienced recurring episodes of loss of consciousness, then operating a vehicle or other potentially destructive implement with knowledge of the potential danger, might well amount to reckless disregard for the safety of others. The defense of unconsciousness must be distinguished from "blackouts" caused by the voluntary ingestion of alcohol or nonprescription drugs. If due to alcohol or drugs the case must be handled as an intoxication defense. Sleepwalking-look for evidence of consciousness

Mental State 2)Model Penal Code Approach (MPC)

Under the MPC, which has been adopted by many states, a person is not guilty of an offense unless he acted (1) purposefully, (2) knowingly, (3) recklessly, or (4) negligently with respect to each element of the crime. If a statute does not specify a required mental state, the default mental state that must be met for commission of the crime is recklessness. In addition, if a defendant acted with a higher degree of mental culpability than required by the statute, the mental state element will be satisfied. [MPC § 2.02(1)-(5)]

Homicide

Under the common law, criminal homicide may be classified as murder, voluntary manslaughter, or involuntary manslaughter. Modern statutes have further stratified the classification system, dividing murder into degrees based on the defendant's level of culpability. Under the MPC, a person commits criminal homicide if he purposefully, knowingly, recklessly, or with criminal negligence, causes the death of another human being. [See MPC § 210.1] Additionally, some states have codified in statute the crime of vehicular homicide, which is an unintentional death caused by an individual driving a car.

Misdemeanor Manslaughter

Under the misdemeanor-manslaughter rule, a defendant may be charged with involuntary homicide for a killing that occurs during the commission of a misdemeanor or a felony not serious enough to warrant a felony- murder conviction. Much like the felony-murder rule, a misdemeanor- manslaughter charge is only available if the death was a reasonably foreseeable consequence of committing the underlying crime.

Voluntary Act

Voluntary Act-every criminal statute someone has to do something or fail to do something.

Voluntary Act

Voluntary Act-every criminal statute someone has to do something or fail to do something. A voluntary act means a bodily movement over which the individual has control. [MPC § 1.13(2)] The following are not voluntary acts: (1) a reflex or convulsion, (2) bodily movement while unconscious or during sleep, (3) conduct during hypnosis or resulting from hypnotic suggestion, or (4) a bodily movement that otherwise is not the product of the effort of the actor. [MPC § 2.01(2)]