Law Outlines > Criminal Law Outlines
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Criminal Law Outline
Sources of Criminal Law
English common law
Social morals
Modern legislation
Model penal code
Proving guilt at a trial
Right to a trial by jury: Under the Sixth Amendment, “in all criminal prosecutions, the accused shall enjoy the right to a speedy and public trial, by an impartial jury.
Burden of proof: A person charged with a crime is presumed innocent. The State must prove the elements of a crime beyond a reasonable doubt.
Jury nullification: Is not a right given by the Constitution. It is power that the jury possesses to nullify the law. Because (1) a jury returns a general verdict; they do not have to justify their verdict; (2) the Fifth Amendment protects a defendant from “double jeopardy”
Purposes of Punishment
Utilitarian
Deterrence: general and specific
Isolation/protection
Rehabilitation
People v. Du
Retributivism
An ‘eye for an eye’
Constitutional Limits on Criminal Law
First amendment: Congress shall make no law….abridging the freedom of speech.
Second amendment: the right of the people to keep and bear arms
Fourth amendment: the right of the people to be secure in their persons, houses, papers and effects against unreasonable searches and seizures
Eighth Amendment: cruel and unusual punishment [shall not be] inflicted
Fourteenth Amendment: Due Process Clause -> states not only guarantee procedural fairness to criminal defendants, but also to respect substantive principles of justice
Statutory Analysis
Due process
Burden of proof - on the govt in criminal cases
Standard of proof - beyond a reasonable doubt
Notice
Principle of legality - nullum crimen sine lege, nulla poena sine lege
No retroactive expansion/application of criminal laws
Compare: ex post facto (legislative), Art. I, Sections 9,10 of the Constitution.
Void for Vagueness Doctrine
Definiteness
Minimum guidelines to prevent arbitrary and discriminatory enforcement of the laws
Inhibits exercise of 1st amendment rights
Rule of Strict construction/doctrine of lenity(p 113): statutory interpretation in favor of the defendant and against the government.
Legislative intent
Common law
Plain meaning/dictionary
Purpose/policy
Statutes in pari materia
Legislative history
Principle of legality v ex post facto (how are they different)
Ex post facto applies to legislative
10th amendment
No retroactive creation or expansion of crimes
Principle of legality applies to judicial branch
No retroactive creation or expansion of crimes
Elements of a Crime
Actus Reus - Acts and Omissions
The criminal act Voluntary act or failure to act w/ legal duty
Failure to act: a legal duty and the failure to do so
MPC Under 2.01: Voluntary Act or Omission to Perform an Act of which the Actor is Physically Capable
Voluntary: not reflexive, volitional, compare: intentional, deliberate, purposeful OR legal duty
Statute: if a statute tells one that they have legal duty to help
Example: hit someone with a car dont leave or hit and run
Status: relationship status
Contract
Creation of risk
Assumption of duty
Example: lifeguard, security guard
If you assume the duty you have to finish it
All crimes have an actus reus, but not all crimes have a mens rea
Mens Rea - State of Mind
MPC SECTION 2.02 - Four mental States for Criminal Culpability
Purposely (aka intentionally) - conscious object to engage in conduct of the nature or to cause such a result and if the element involves attendant circumstances, is are of their existence or believes or hopes those circumstances exist
Knowingly - aware that his conduct is of that nature or that such circumstances exist and if the element involves a result of his conduct
Knowledge of high probability
Willful blindness = knowingly (same rule under the common law)
Recklessly - consciously disregards a substantial and unjustifiable risk. (subjective standard) the actors conduct involves a gross deviation from the standard of conduct a law-abiding person would observe in the actor’s situation
Negligently - when the actor should be aware of a substantial and justifiable risk. (objective standard) the actor’s failure.
General v specific intent
General intent - the intent to commit the actus reus of the crime; for general intent crimes it is assumed under the common law that the intent is purposefully or knowingly
Specific intent - any additional mental state required for the crime
Intoxication can be a defense
Attended circumstances
Not all crimes have attended circumstances but burglary does
Crimes
Arson (general intent)
Malicious (intentionally or recklessly)
Burning
Another’s dwelling
Battery (general intent)
Causation
Actual - but for, factual
Proximate - legal foreseeability
Strict Liability Offenses - Generally, Two Types:
Public welfare offenses - Malum Prohibitum (it’s wrong because we said so)
Ex: Traffic Regulations, Building Codes, Food and Drug Regulations, Liquor Sales
Common Law Partial Strict Liability Crimes - Malum in Se (wrong because they are inherently wrong)
Felony murder
Statutory rape
These are partial liability crimes because they are missing a mens rea
For felony murder there is no intent for the murder occurring because of the felony
For statutory rape there is no intent for the age
*Just because the statute does not directly state which kind of mens rea is required for a crime, then one must use the common law*
Causation
In order to have causation you MUST have both elements.
Actual/But For/Factual
But for the action, the result would not have occurred
Acceleration - both acts are causes in fact of the harm
Substantial factor test - either act alone causes the harm. Each act is a cause in fact of the harm
Proximate/Legal
Examine foreseeability of consequence.
Intervening causes - do NOT break the causal connection between the actor’s conduct and the resulting harm
Ordinary negligence = intervening
Superceding causes - do break the causal connection between the actor’s conduct and the resulting harm
Gross negligence = superceding
Apparent safety doctrine = superceding
Acts of God and third-party actions almost always superseding
Victim’s acts should also be taken into account
Public policy/Foreseeability
Types of Intervening/Superceding Acts:
Acts of God/Nature
3rd party acts
Victim’s acts
Intended consequences doctrine
Responsive intervening cause = intervening unless unforeseeable
Coincidental intervening causes = superceding unless foreseeable
Extreme recklessness -> Ordinary recklessness -> gross negligence (midpoint)-> civil negligence. Gross negligence: they were not aware, they should’ve been aware, and the failure to be aware is way below the standard of care
Homicide
Murder - common law
Killing of another human being
Human Being
CL: Born Alive
Modern: Feticide (some states)
CL: Cessation of Respiratory Functions
Modern: Brain Death
Causation
CL: 1 Year and 1 Day
Modern/California: 3 Years and 1 Day
Done with malice aforethought
Malice aforethought: if a person possesses one of the four states of mind
Intent to kill (more intense) 1st degree (express malice) (specific intent)
For attempted murder, it only works for intent to kill
Great bodily injury (less intense than intent to kill - generally speaking because this person was more than likely going to die) 2nd degree (implied malice - specific intent)
Depraved heart (unintentional killing) is extreme recklessness - you have to prove (implied malice - general intent)
There is subjective awareness/conscious disregard
Substantial/Unjustifiable risk of death
Felony-murder rule (implied malice - specific intent)
Partial strict liability - No intent to commit the actus reus necessary, only the intent to commit the underlying felony
CL: Any death during the commission or attempted commission of a felony
Causation (actual + proximate) - time, place, and manner
Modern limitations
Specifically, enumerated felonies
Inherently dangerous felonies
Case by case (majority): this felony must be committed without involving a substantial and unjustifiable risk of death then your
Abstract (minority, including California)
Merger doctrine/independent felony rule
Exception: independent felonious intent (have to prove two separate intent)
Exception: specifically, enumerated felonies
Causation (actual + proximate) - time, place, and manner
Accomplice liability
CL Rule - proximate cause
Redline rule (min) - no FMR if killing is justified
Agency Rule(maj)–FMR extended only to acts of agents (co-felons on the “same team”)
Death Penalty – Non-trigger co-felon
Extreme recklessness
Substantial participation in predicate felony
Majority of states that use 1 and 2 use specifically enumerated as first degree FMR and 2 as second degree FMR
Without excuse, justification or mitigation
If you have excuse or justification - you have the burden of proof
Minority perspective: Necessity can never be defense unless net lives are saved (Model Penal Code)
Majority not for murder
First Degree Intent to Kill Murder
Intent to kill murder with premeditation and deliberation
Premeditation: think about something beforehand
Majority like California: think premeditation can have in the twinkling of an eye
Minority: think premeditation is time for a second look -> it can happen quickly but not instantly
Deliberation: weighing options
Voluntary Manslaughter
Manslaughter: Unlawful killing that does not involve malice aforethought (because there are mitigating circumstances) BUT it is still without excuse or justification
An intentional homicide committed in ‘sudden heat of passion’ as the result of ‘adequate provocation’ mitigates the offense to voluntary manslaughter.
Murder committed in response to adequate provocation
Heat of Passion
Actual Provocation (subjective)
Reasonable provocation (objective)
Characteristics re Gravity of the Provocation (ok) v Character Defects
Words alone - minority ok
Insulting v Informative
No cooling off
Compare MPC: Extreme Mental Emotional Disturbance
Minority jurisdiction: This is a broader concept than heat of passion and will be more likely to get jury to decide on this -> some states have completely rid of heat of passion
Diminished Capacity (minority only)
Drop down from legal insanity. Although it is used in the minority for criminal defenses/mitigation, this term still has many other uses in the legal field
Imperfect Privilege (imperfect self-defense, defense of others, defense of habitation)
Involuntary Manslaughter
Misdemeanor manslaughter: An accidental homicide that occurs during the commission of an unlawful act not amounting to a felony
Non-dangerous felonies
Malum in se misdemeanors
IF PREDICATE FELONY FOR FMR IS NOT INHERENTLY DANGEROUS GO HERE!!!
Civil/criminal negligence
Common law; gross negligence required
Modern majority: gross negligence or recklessness required
Minority: Ordinary (civil) negligence ok for criminal liability
Theft
Burglary - common law (violent theft) (specific intent)
Breaking: create an opening
Entering
Into a dwelling: where you sleep/where you feel safe
At night: after sunset
With the intent to commit a felony
Larceny (non-violent theft) (specific intent): Trespassory taking and carrying away of the personal property of another with intent to permanently deprive (steal)_
Taking control of something and Carrying away
Trespassory taking = nonconsensual taking of possession not ownership/title. (compare the crime of false pretenses)
If possession is obtained through fraud = larceny by trick
Possession v custody
Possession = sufficient control to use the property in a reasonably unrestricted manner
Actual possession = physical control
Constructive possession = no physical control but claimed exclusive right to use
Lost and mislaid property = owner retains constructive possession
Fertilized embryos: quasi-property
Compare, abandoned property
There is usually an statute describing how long property can be considered lost. Abandoned property is legal possession of no one.
Custody = physical control but temporary/limited right to use
“Breaks Bulk” Rule - trespassory taking of the contents of a container by bailee = larceny
Example: Employer (constructive possession) – Employee (custody)
But compare 3rd party transfer of property to employee (lawful possession) for employer = embezzlement not larceny
Another person’s property
Carrying Away (asportation)
Slight movement sufficient
MPC and modern Majority – abolish
Personal property of another
No larceny for real property
Cut crops = personal property. But crops attached to the land are NOT personalty.
MPC and modern majority do not distinguish between movables v. non-movables/ realty v. personalty.
Intangible property (labor and services) are NOT included in CL Larceny
MPC and modern include intangible property for larceny
Of another – ownership v. possession
Can a person commit a larceny of property that he/she owns? YES, because larceny is a crime against possession!
With intent to permanently deprive (steal) – substantial risk of loss sufficient
Concurrence of IntenttoSteal at Time of Actus Reus Required
Continuing Trespass Doctrine: an initial trespassory taking = a new trespass each moment thereafter = larceny
Claim of Right (mistake negates intent to steal)
Modern Majority reject Claim of Right defense when force,violence or weapons are used.
“Sale Back”to Owner
Reward for“Found”Property
Return for“Refund”
Larceny by trick – larceny but possession was obtained through fraud
Embezzlement – fraudulent conversion of personal property of another by a person in lawful possession (majority also require that the property by received in trust for another)
False pretenses – obtaining possession and title to the property of another by a false statement with intent to defraud.
Robbery (larceny elements + 2) (specific intent)
From the person or presence of the victim
By force or fear (violence or intimidation)
Rape
Carnal knowledge - penetration of the female sex organ by the male sex organ
Modernly, means of penetration may be expanded
Only slight penetration is required
Emission is not required
Of a woman
Common Law - + 10 years of age; <10 years = statutory rape
Modernly - various age limits for statutory rape
Modernly, statute may be gender neutral
By force (extrinsic/intrinsic) or threat of force (constructive) (sometimes an alternative element with Lack of Consent)
Extrinsic/Intrinsic force
Common law - physical resistance required
Minority - physical resistance not required
intrinsic : Only the amount of ‘force’ needed to commit the act
Majority - the amount of force necessary to overcome the non-consent of a reasonable woman.
Threat of force (constructive):
Fear of immediate death or great bodily injury
Fear so extreme as to preclude resistance
Threats to third party sufficient - majority of states
Exceptions to force
Drugs or intoxicants (lack of capacity)
Without Consent
Modernly, < of the states still use this language
Consent presumed? Gender bias
Lack of verbal resistance - consent
Minority require affirmative consent.
Common law required physical resistance to prove lack of consent.
Marital exemption
Consent presumed/common law husband and wife = one identity/wife as husband’s chattel
Modernly, spousal rape = specific crime or have abolished the marital exemption
Incapacity due to lack of consciousness, drugs/intoxicants, or mentally incompetent
Defendant’s mental state re victim’s lack of capacity?
Statutory rape
Fraud in the factum v. fraud in the inducement
Fraud in the inducement: Lying to get sex; The court does not touch on inducement
Fraud in the Factum: negates consent, so you have rape
Mistake as Defense (general intent - mistake must be both subjectively honest and objectively reasonable)
Minority - mistake is NOT a defense
Majority Variations
Substantial evidence of equivocal conduct required
Negligent mistake is NOT a defense
Reckless mistake is NOT a defense
Defenses
Affirmative defense: the defendant has the burden of proof
Excuses
Defendant admits to the crime proscribed by law but if the defendant's violation was not entirely voluntary, such as if they acted under duress or under a false belief.
Justification
A person is not criminally liable even though their act would otherwise constitute an offense.
The burden of proof is on the defendant to prove each element of that affirmative defense.
The standard of proof is preponderance.
In some states the standard has been moved upon to clear and convincing BUT NEVER beyond a reasonable doubt
Failure of proof
Defendant must just create doubt that is it
Which means the government cannot satisfy its burden of proof (beyond a reasonable doubt)
Actus reus
PTSD
Sexsomnia
Automatism
Sleepwalking
PMS
Mens Rea Mistake
Mistake as whole is generally not allowed to be brought up in court unless there is substantial evidence of equivocal conduct required
Mistake of Fact
Specific intent - An honest mistake of fact is a defense to a specific intent crime
Mistake must be honest (subjective)
Honest Mistake negates the specific intent element of the crime
General intent - An objectively reasonable mistake of fact is a defense to a general intent crime
Mistake must be both honest and objectively reasonable.
Exceptions: An honest and reasonable mistake of fact is NOT a defense to these general intent crimes:
Moral wrong doctrine - Malum in Se Crimes
Morally this is wrong
Legal wrong doctrine
It’s a more serious crime than the one you thought you committed
Mistake of Law
Same law mistake - the actor is mistaken about the law which he/she is charged
Diff law mistake - the actor is mistaken about a law different from the one he/she is charged with violating
Specific intent crimes - yes, the actor’s mistake = defense
General intent crimes - no, the actor’s mistake is NOT a defense
Felony murder – mens rea only for felony not murder
Statutory rape – mens rea only for intercourse, not age
Offense Modification
All elements of the crime exist but the actor did not cause the harm: Lack of causation
Justification Defenses
Self defense
Honest and reasonable belief of unlawful, imminent, deadly force
Minority recognize imperfect privilege as mitigation (honest but not reasonable)
Deadly force
Actual + reasonable belief of unlawful imminent death or GBI
MPC Section 3.04: Belief need not be reasonable
Minority recognize imperfect privilege for honest but unreasonable belief (Calif)
MPC: Immediately necessary
Use of force must be necessary and proportionate
Cannot use deadly force to protect property (limited exceptions)
Cannot use deadly force to resist arrest by a known police officer
Minority: imperfect privilege for excessive force
Escalation of force
Defendant cannot be the initial aggressor
withdrawal=unequivocal communication of removal from conflict
Sudden escalation = non-deadly force escalates into deadly force
Imperfect privilege in some jurisdictions if D is the aggressor
Majority: NO duty to retreat
CL and Minority: duty to retreat (only if completely safe) BUT note the following exceptions
Exception: Castle Doctrine
MPC : workplace included unless co-worker
Exception: Making lawful arrest
Exception: robbery victim need not retreat
Transferred Justification
You can transfer justification defense to third party victim, unless you are reckless or negligent
Defense of Others
Minority require special relationship: family member or employment
CL and Minority: Alter Ego rule
If one comes to the rescue to defendant the other person, but the person does not have the privilege of self-defense then you do not have the defense either. That person is standing in the shoes of the other person.
Majority: Reasonable Appearances Rule - objective
An intervenor may use force to the extent that such force reasonably appears to the intervenor to be justified in defense of the third party, even if those appearances prove false
Defense of Dwelling/Habitation (Castle)
Common Law
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