joshua dressler criminal lawedit

8/8/2019 Joshua Dressler Criminal LawEdit

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CRIMINAL LAW

Sum & Substance

Professor Joshua Dressler

I. INTRODUCTORY POINTS

A. Sources of Criminal Law.

1. Common Law.

2. Statutes Derived from Common Law.

3. Model Penal Code.

B. Criminal Law vs. Civil Law.

1. Criminal.

a. Defendant is punished.

b. The criminal conviction itself says defendant is a moralwrongdoer. It is a condemnation by the community/³a

morality play.´

2. Civil.

a. Defendant pays victim.

b. Defendant is not morally stigmatized.



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C. Theories of Punishment.

1. Retribution.

a. People should get what they deserve.

b. Humans have free will. If they choose to do wrong, it is

appropriate to punish them.

c. Looks backwards. Only punishes to the extent of the

wrongdoing.

2. Utilitarianism.

a. All forms of pain are bad. Punishment is not good, butneither is crime. Punish if imposition of pain will reduce

the likelihood of future crimes.

b. Looks at people as moral calculators.

c. Forms of utilitarianism.

1) General deterrence.

2) Specific deterrence.

3) Rehabilitation.

D. Principle of Legality.

1. General Rule.



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We do not punish a person because he is bad, immoral, or dangerous, or even because he committed an act of such sort. We

only punish if that act is also defined, in advance, as a crime.

2. Law Cannot Be Vague.

The law must be written in a sufficiently clear manner so that a

reasonable law-abiding person can figure out what is being prohibited.

E. Burden of Proof.

1. ³Beyond a Reasonable Doubt.´

2. The Government Must Prove, Beyond a Reasonable Doubt, EveryElement of a Crime.

a. This standard means that a jury must have an abidingconviction of the defendant¶s guilt.

b. This is a constitutional requirement.

II. COMPONENTS OF A CRIME

A. Actus Reus. The physical part of the crime.

B. Mens Rea. The mental part of the crime, or the state of mind of defendantwhen he committed the crime.

C. Five Elements of a Crime:

i. Voluntary act or omission.

ii. Social Harm.iii. There is a mens rea²A morally culpable state of mind.



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iv. Actual causation.v. Proximate causation.

1. Voluntary Act or Omission.

a. Common law voluntary act: A willed muscular action.

b. Not every act must be voluntary. Only the relevant act must be voluntary.

c. Omission: Ordinarily, no punishment for failure to act. Aduty to act arises when there is a:

i. Duty required by statute.

ii. Status relationship.

iii. Contractual requirement to act.

iv. Risk of harm.

v. Once you act, you then stop, and it makes mattersworse.

2. Social Harm.

3. Mens Rea.

a. Mental state of actor at time he committed the actus reus.

b. Defined in two ways:



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i. Person acts with requisite mens rea if he committedactus reus with a morally blameworthy state of

mind.

OR

ii. With a particular wrongful state of mind.

c. Strict liability.

1) Mens rea is not relevant.

2) Typically applies to public welfare offenses.

3) Typically involves malum prohibitum conduct, very

minor punishments, and is not generallystigmatizing.

4) There is a presumption against strict liability.

d. Model Penal Code mens rea.

1) Purposely.

2) Knowingly.

3) Recklessly.

4) Negligently (criminal negligence).

e. Specific intent vs. general intent.



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1) Some defenses are only available for specific intentcrimes.

2) Specific intent: By definition, the crime requires

proof of some particular mens rea that goes beyondsocial harm sought to be punished.

f. Mistake of fact.

1) In strict liability, mistake of fact is irrelevant.

2) For specific intent crimes, mistake of fact will

exculpate defendant if mistake disproves specificintent element of the crime even if mistake is

unreasonable.

3) For general intent crimes, ask whether mistake was

a culpable or blameworthy act. Generally, a personwill be acquitted if mistake of fact was a reasonable

one, and convicted if an unreasonable one.

4) Moral wrong doctrine, occasionally used with

general intent crimes: Look at facts through eyes of defendant. Then, ask, is what defendant thought he

was doing a morally wrongful act? Even if not acrime, if morally wrongful act, the defendant can be

convicted because he assumed the risk of beingconvicted of a crime.

5) Model Penal Code does not distinguish betweengeneral and specific intent. It just asks, did the

defendant have mens rea for the crime? Applycommon law specific intent definition because all

MPC crimes require a particular state of mind.

g. Mistake of law.



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1) Generally, ignorance of the law is no excuse, evenif mistake was a reasonable one.

2) Exceptions:

i. Mistake reasonably based on an official

mistaken interpretation of the law by a bodyor person responsible for interpreting the

law.

ii. Statute requires that defendant be aware of

another law, and defendant¶s lack of awareness of other law negates element of

offense requiring knowledge of that law.

3) Model Penal Code.

Knowledge or understanding of the law is not

relevant unless it is a stated element of a crime.

4. Actual Cause.

Who or what caused the death of the victim? ³But for´ test: But

for the defendant¶s voluntary act or omission, would the socialharm have occurred when it did?

5. Proximate Cause.

a. Look at all causal candidates that meet the ³but-for´ test,

and decide which ones should be criminally charged.

b. When analyzing proximate cause, draw a line between

defendant¶s voluntary act and social harm. Did anythinghappen between these events?

c. Intervening factors:



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i. Intended consequences rule.

ii. Apparent safety doctrine.

iii. Free will.

Voluntary free will intervening act will shift

responsibility from initial actor to free will actor.

d. Some courts, rather than applying any of the preceding

rules will look at intervening causes and distinguish between two kinds:

i. Responsive.

(a) A force that comes into existence as a

response to the defendant¶s conduct.

(b) Normally, if responsive, law holds initial

party responsible, unless responsive force is³totally bizarre.´

ii. Coincidental.

(a) A force is already in existence, but

defendant put victim in position to beharmed.

(b) If coincidental, the original wrongdoer is notresponsible unless that consequence was

reasonably foreseeable.

III. DEFENSES



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There are two types of defenses:

i. Justification: Actor did right thing, or at least did nothing wrong.

ii. Excuse: Actor did something wrong but should not be blamed because of an excusing condition.

A. Justification Defenses.

1. Self-Defense.

a. In general terms, use of force must be necessary, force usedmust be proportional to threat, and the actor must have a

reasonable belief as to these latter two issues.

b. Common law.

1) Justified in killing in self-defense if at the time theactor used deadly force that person reasonably

believed that such force was necessary to combatimminent, unlawful deadly force.

2) ³Reasonable belief´: Do not have to be right, butyour belief must be reasonable.

3) Imminent threat: Threat is just about to happen/theidea is that you have no alternative.

4) Person who claims self-defense cannot be the initialaggressor, unless he effectively communicated that

he was no longer a threat.

c. Model Penal Code: Pretty much same as common law, but

applies categories of ³reasonableness,´ so that you can



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have a partial defense if your belief is, for example,negligent.

d. Battered woman issue: A jury may consider the battered

woman¶s prior experiences in determining the

reasonableness of her action.

2. Defense of Third Parties.

a. A person may use force to harm aggressor to extent personshe is aiding could use self-defense herself.

b. Undercover cop? Most courts, following Model PenalCode, say reasonable belief is sufficient, even if incorrect.

3. Defense of Property.

a. Common law: You can never use deadly force to protect

personal property. You may use deadly force under certaincircumstances to protect the home, but it must reasonably

seem to be the only option.

b. Modern jurisdictions: In most jurisdictions today, must also

reasonably believe that intruder intends to commit aforcible felony therein.

4. Law Enforcement Defenses.

a. Crime prevention.

1) It is justifiable for police to use force to preventcrimes.

2) Deadly force may never be used to prevent amisdemeanor, but deadly force may be used to

prevent any felony.



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3) Today, deadly force is only appropriate if

reasonably believed to be the only way to stop a forcible felony.

b. To effectuate arrest.

1) Common law: Could use deadly force in arrest or prevention of escape of any felon.

2) Tennessee v. Garner : Supreme Court ruled that useof deadly force to prevent escape of a non-violent

felon violates the Fourth Amendment.

5. Necessity (Model Penal Code: Choice of Evils Defense).

a. A residual defense.

b. Elements:

i. Reasonable belief of threat of imminent harm to self or others, including property.

ii. Reasonable belief that committing harm is only wayto prevent threatened harm.

iii. Person must not be at fault for creating theemergency.

iv. Harm caused must be the lesser evil (balancing of evils).

v. Most commentators believe this defense is notavailable for murder. But Model Penal Code says



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can be used for any crime, provided you meet allelements. (Also, MPC does not require

imminency.)

B.Ex

cuse Defenses.

1. Duress.

a. Threatened with imminent death or serious bodily injury.

b. Reasonably believe that succumbing to threat is only wayto save life.

c. Defendant must not have been at fault for being in thesituation.

d. Not a defense for murder.

e. Model Penal Code: It may be an affirmative defense if the

actor engaged in criminal conduct because she was coercedinto it by use of or threat to use unlawful force against her

person or the person of another, a threat a person of reasonable firmness in her situation would have been

unable to resist.

2. Intoxication.

a. Voluntary (Model Penal Code: Self-Induced).

1) Not an excuse.

2) But, may serve as a mens rea defense for a specificintent crime.



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3) Model Penal Code: Same general principles. But, if charged with recklessness, which ordinarily requires

awareness of risk, if actor was unaware of the risk due to voluntary intoxication, actor may be

convicted of recklessness, but not a crime of

purpose or knowledge.

b. Involuntary.

1) Ingested intoxicant innocently.

2) Forced to take intoxicant.

3) Unforeseeable, unintended response to prescribedmedication.

4) Courts are then sympathetic, and will permit it toserve as a defense to general, as well as specific,

intent crimes.

5) Underlying basis of the defense is the same as for

the insanity defense.

3. Insanity.

a. Four states have abolished the insanity defense.

b. Insanity is an ³excuse´ because society wants to distinguish

between ³the mad and the bad.´

c. If not guilty by reason of insanity, defendant is civilly

committed to an institution.

d. One can be mentally ill but not insane.



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e. Insanity tests.

1) M

cNaghten Rule.

a) Two alternative prongs:

i. Defendant did not know nature and

quality of act at time he did the act.

ii. Defendant did not know he was

doing something wrong.

b) This is a cognitive test.

2) Irresistible impulse test.

a) Look to volition, not cognition.

b) Defendant was unable to control himself.

3) Model Penal Code: Defendant lacked substantial

capacity to appreciate the [criminality] or [wrongfulness] of her conduct, or lacked substantial

capacity to conform conduct to the law.

4) Product/ Durham Test.

a) Probably not used anymore.

b) Defendant is not guilty if criminal conduct is

the product of a mental illness.



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f. Diminished capacity.

1) Mens rea: If defendant, because of mental

condition, lacks specific intent to commit aspecific intent crime, he will be acquitted.

2) Partial responsibility: Used to reduce thecrime of murder to the lesser offense of

manslaughter on the ground that personclaiming defense is mentally ill, or has a low

IQ, making him less culpable than a personwho does not have that condition. Convict in

proportion to capacity.

IV. HOMICIDE

A. Early Common Law Murder. Murder is the killing of a human being by

a human being (would include suicide).

B. Common Law Today. Murder is the killing of a human being by another

human being .

1. Two Forms of Criminal Homicide: Murder and Manslaughter.

2. Actus Reus.

Actus reus issues are rare. They occur when, for example, thevictim is a fetus, or a person on artificial life support.

3. ³Year and a Day´ Rule.

At common law, a death that occurs more than one year after therelevant assault took place is barred.



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4. Mens Rea.

a. Usually, it is the mens rea requirement that is at issue.

b. Keep in mind the two common law crimes: Murder andmanslaughter.

C. Malice.

1. ³Aforethought.´

The word ³aforethought´ just reminds us that you cannot be

convicted of malice ³afterthought.´

2. ³Malice.´

³Malice´ is covered by four ³human endangering´ states of mind:

i. Intent to kill a human being (intend to kill or know withsubstantial certainty).

ii. Intent to inflict grievous bodily injury on victim, and victimdies.

iii. Acting with an ³abandoned and malignant heart,´ or a³depraved heart,´ or a ³depraved indifference toward

human life.´ The idea is a total indifference toward thevalue of human life. Today, probably would refer to

defendant as acting with ³extreme recklessness.´

iv. Felony Murder Rule.

1. Definition: Guilty if kill another person duringcommission or attempted commission of any

felony.



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2. Common Law. The common law also treats the

escape from the felony as part of the res gestae, or body, of the crime. Thus, felony-murder rule

applies.

3. Rule May Be Narrower. Some jurisdictions have

narrowed the rule, for example, by requiring (i) thatthe felony be an ³inherently dangerous felony,´ or

(ii) adding an ³independent felony´ limitation.

D. Degrees of Murder. Many states have now divided murder into degrees.

First degree involves the stiffest penalty.

1. First Degree Murder.

a. Murder that is committed in a particular way, e.g., ³killing by poison´ or ³by lying in wait.´

b. Killing occurs during the commission of enumeratedfelonies.

c. Killing is ³willful, deliberate, and premeditated.´

2. Second Degree Murder.

All other kinds of murder are second degree murder.

E. Model Penal Code.

1. No Malice Aforethought Requirement, No Degrees of Murder.

2. Definition: A person is guilty of murder if she kills another person purposely or knowingly, or recklessly in a manner manifesting

extreme indifference to the value of human life.



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F. Manslaughter.

1. Common Law.

a. An unlawful killing by a human being of a human being

without malice aforethought.

b. Divided into voluntary and involuntary.

c. Heat of passion (voluntary manslaughter): Killed becauseof ³adequate provocation,´ during heat of passion, and heat

of passion occurred before actor had reasonableopportunity to cool down. Words alone never constitute

sufficient provocation.

d. Involuntary Manslaughter.

a) In some states, the commission of a lawful act thatmight produce death and was done in a criminally negligent

manner is involuntary manslaughter.

b) Misdemeanor manslaughter/unlawful act: An

unintended homicide that occurs during the commission of an unlawful act that does not amount to a felony is

involuntary manslaughter.

2. Model Penal Code version of manslaughter.

a. If a killing that would otherwise constitute murder occurs as aresult of extreme mental or emotional disturbance for which

there is a reasonable explanation or excuse, the defendant will be guilty of manslaughter. Provocation, per se, is not required.

³Diminished capacity´ also qualifies.



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b. A reckless, but not extremely reckless killing, constitutesmanslaughter. A negligent killing constitutes a lesser crime of

³negligent homicide.´

V. RAPE

A. Common Law.

1. Definition: Sexual intercourse by male with female not his wifewithout her consent.

2. Resistance Requirement: If male used force likely to cause death or serious bodily injury, female did not have to resist. If lesser force,

woman had to resist in order for crime to constitute rape²as muchresistance as woman was capable of.

B. Modern Jurisdictions. Most states have reduced the resistancerequirement, e.g., to ³reasonable resistance,´ even just verbal resistance.

C. Mistake of Fact. A reasonable mistake about consent is a defense, but anunreasonable mistake is not.

VI. PROPERTY OFFENSES

A. Larceny.

1. Definition: Trespassory taking and carrying away of the personal

property of another with intent to steal it.

2. Elements:

i. Trespass: Wrongful.



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VII. INCHOATE OFFENSES

Incomplete/unsuccessful offenses: Attempt, Solicitation, and Conspiracy.

A. Attempt.

1. Mens Rea.

Must have specific intent to commit the target offense.

2. Actus Reus: How Far Must Actor Go?

a. Different tests at common law.

1) Physical proximity test.

Actor must have apparent power to complete the

crime immediately.

2) Dangerous proximity test.

Consider how close actor physically is to

committing the crime, how close actor istemporally, and how serious the crime is. The more

serious the crime, the less physically and temporallyclose actor has to be.

3) Equivocality.

Looking at actor¶s conduct alone, at what point canyou unequivocally tell what he is about to do?

4) Probable desistance test.

When would a normal citizen think better of hisactions and desist? When has an ordinary person

gone to the point of no return?



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b. Model Penal Code.

An actor is guilty of attempt, with mens rea, if she takes a

³substantial step´ in direction of committing the crime.

3. Special Defenses (Normal Defenses Also Apply).

a. Impossibility.

1) Factual vs. legal impossibility.

2) At common law, legal impossibility is a defense,factual is not a defense.

3) Today, many states and the Model Penal Code haveabolished this defense in its entirety.

b. Abandonment/renunciation.

1) Not a common law defense.

2) If actor crosses the line of attempt, but has not yet been arrested, if he then voluntarily and totally

abandons any criminal intent, then he has a defense.

B. Criminal Solicitation. If an actor requests, encourages, or asks another to

commit a crime with the intention of getting that person to commit thecrime, he is guilty of solicitation the moment he makes the request.

C. Conspiracy.

1. Common Law.



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a. An agreement between two or more persons to commit anunlawful act.

b. Plurality requirement: Two or more persons must have the

requisite mens rea (e.g ., if one of the two is really anundercover officer feigning agreement, no conspiracy).

c. Requires a specific intent on part of both persons to commit

the crime.

d. The moment there is a meeting of the minds, the common

law crime of conspiracy has occurred.

2. Modern Jurisdictions.

Many states and the Model Penal Code require an overt act

towards committing the crime, although it does not have to beenough of an act to raise it to an attempt level.

3. Wharton¶s Rule.

There can be no conspiracy if the underlying crime by definitionrequires two or more people (e.g. selling drugs).

D. Complicity. Under some circumstances, an actor is accountable for theactions of another because of a connection to the crime.

1. Accomplice Liability.

Complicity normally comes up as an issue of accomplice liability.There is no crime of aiding and abetting, so the law makes an

accomplice liable for the crimes of the perpetrator.

2. Requirements.

a. Accomplices.



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1) Principal in the first degree is the perpetrator of the

crime.

2) Principal in the second degree (also ³accessory atthe fact´) assists in the crime and is at the scene, butdoes not actually commit the crime.

3) Accessory before the fact assists in the crime, but isnot at the scene of the crime.

b. Actus reus.

1) The actor solicits another to commit a crime,

encourages another to commit a crime, or providesservices or instrumentality used in offense, etc.

2) An actor can be an accomplice even if it is shownthat the perpetrator would have committed the

crime without his help.

c. Mens rea.

µ

1) Two states of mind required:

i. Intent to do acts that constitute the

assistance.

ii. The purpose of assisting in the crime.

However, with crimes of recklessness or negligence, most courts and the Model Penal

Code say can be convicted of unintendedcrime, if have same mens rea as required in

the definition of the offense.



2) Natural and probable consequences doctrine: Anaccomplice in one crime guilty of other crimes

committed by perpetrator if the latter crimes areforeseeable.

3. Defense to Accomplice Liability.

a. An actor cannot be an accomplice if there is no

crime to derive from.

b. An actor cannot be an accomplice if the principal

has a valid justification defense.

c. However, an actor may be an accomplice if the

principal has a valid excuse defense.

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