criminal_outline part 3

8/7/2019 Criminal_Outline part 3

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I) Punishment:

Theories:

1) Utilitarianism: Reasoning:

- Deterrence The utilitarian theory is essentially one of deterrence punishment is

justifiable if, but only if, it is expected to result in a reduction of crime. Punishment must

be proportional to the crime, i.e., that punishment be inflicted in the amount required (butno more than is required) to satisfy utilitarian crime prevention goals. Utilitarians

consider the effect of a form of punishment in terms of both general deterrence and

specific (or individual) deterrence.

When the goal is general deterrence, punishment is imposed in order to dissuade the

community at large to forego criminal conduct in the future.

When the goal is specific deterrence, punishment is meant to deter future misconduct byan individual defendant by both preventing him from committing crimes against society

during the period of his incarceration (incapacitation), and reinforcing to him theconsequences of future crimes (intimidation).

- Rehabilitation Another form of utilitarianism is rehabilitation (or reform). Examplesof rehabilitative punishment include: psychiatric care, therapy for drug addiction, or

academic or vocational training.

2) Retributivism Under a retributive theory of penal law, a convicted defendant ispunished simply because he deserves it. There is no exterior motive such as deterring

others from crime or protecting society here the goal is to make the defendant suffer inorder to pay for his crime. Retributive theory assigns punishment on a proportional basisso that crimes that cause greater harm or are committed with a higher degree of

culpability (e.g., intentional versus negligent) receive more severe punishment than lesser

criminal activity.

3) Denunciation (Expressive Theory) The denunciation theory which holds that

punishment is justified as a means of expressing societys condemnation of a crime has

both utilitarian and retributive components. Under a utilitarian theory, denunciation isdesirable because it educates individuals that the community considers specific conduct

improper, channels community anger away from personal vengeance, and serves to

maintain social cohesion. Under a retributive theory, denunciation serves to punish thedefendant by stigmatizing him.

Considerations:

3 Things that the Court Looks At:

- Nature of the Offense- Nature of the Offender


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- Protection of Public Interest

Legality:

1) Common Law A person may not be punished unless his conduct was defined as

criminal at the time of commission of the offense. This prohibition on retroactivecriminal lawmakingconstitutes the essence of the principle of legality.

- There are three interrelated corollaries to the legality principle:a) Criminal statutes should be understandable to reasonable law-abiding persons.

A criminal statute must give sufficient warning to men of common intelligence

as to what conduct is unlawful. A person is denied due process of law if he is

convicted and punished for violation of a statute that lacks such clarity. Statutecannot be vague or overbroad.

b) Criminal statutes should not delegate basic policy mattersto police officers,

judges, and juries for resolution on an ad hoc and subjective basis.

c) The lenity doctrine - Judicial interpretation of ambiguous statutes should bebiased in favor of the accused.

2) Model Penal Code The Model Penal Code does not recognize the lenity principle.

Section 1.02(3) requires instead that ambiguities be resolved in a manner that furthers the

general purposes of the Code and the specific provision at issue.

III) Elements of a Crime:

- Actus Reus + Mens Rea + Causation (factual and proximate) + Attendant

Circumstances (concurrence) = Crime

1) Determine the Actus Reus:

Actus reus refers to the physical aspect of the criminal activity. The term generallyincludes (1) a voluntary act(2) that causes (3) social harm.

- Was there an Act or Omission?- Omission Failure to Perform a Legal Duty to Act.

5 Ways a Legal Duty to Act Can Be Created:

1. Statute2. Contract Implied or Express - Taking Care of Elderly or Handicapped

3. Voluntary Assumption of Care If you start to render First Aid, then you

must continue if it would leave the person in a worse position than when youstarted.

4. Special Relationship Parent to Child

5. Wrongful Creation of Peril Intentional or Unintentional If you harmsomeone, then you have a duty to assist them.


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Defenses for Attacking Actus Reus:

A. InfancyB. Insanity

C. Involuntary: Types:

- Reflexive- Unconscious

- Involuntary Intoxication

- Asleep (Sleep Walking)- Convulsive (Epilepsy)

Inchoate Crime: Crimes that do not necessarily require an act, require specific intent:

A. Conspiracy:

Elements:

- Agreement- Unlawful Act

- Knowledge and Intent to Agree- Overt Act (a statement plus an act in furtherance of the

agreement/conspiracy) is not Necessary

* Federal Drug Conspiracy is an exception, overt act is needed

Prosecutorial Advantages:

- Joinder of Co-Conspirators Guilt by Association Swans dont

swim in the sewer.- Get to Choose the Venue

- Evidentiary Advantages- Expanded Relevant Evidence- Merger can also charge the substantive act

- Dont Have to Wait for the Crime to be Committed

- Pinkertons Rule Can be liable for co-conspirators acts if theywere (1) foreseeable and (2) in furtherance of the crime.

Types:- Bilateral Conspiracy Both parties have intent

- Unilateral Conspiracy One party has intent and the other is a

faker (police officer or informant)

- Wheel and Spoke Conspiracy Example: A in the middle with B,C, D, E around like a wheel

- Chain Conspiracy Example: A B C

- Single Conspiracy All parties part of one conspiracy- Multiple Conspiracies Most favorable to the defense as it

potentially eliminates many of the prosecutions evidentiary and

jurisdictional advantages


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Defenses:

- Abandonment May be a defense if the renunciation is completeand voluntary and the proper authorities are alerted/steps taken to thwart the

crime.

- Whartons Rule If by its very nature the crime requires more

than one person, then conspiracy cannot be charged unless you have morepeople than are necessary to commit the crime. (Note: Now this is just a

presumption).

- Plurality is needed, but there can just be an unindictedcoconspirator.

B. Attempt: Planning or trying to commit a crime is a crime. Mere preparation isinsufficient though.

Tests:

Tests That Focus on What is Left to Do:- Last Act Test an attempt occurs at least by the time of the last

act but this test does not necessarily require that each and every act beperformed on every occasion.

- Physical Proximity Test the defendants conduct need not reach

the last act but must be proximate to the completed crime.- Dangerous Proximity Test an attempt occurs when the

defendants conduct is in dangerous proximity to success, or when an

act is so near to the result that the danger of success is very great.

- Indispensable Element Test an attempt occurs when thedefendant has obtained control of an indispensable feature of the criminal

plan.

Tests That Focus on What has Already Been Done:

- Probable Desistance Test an attempt occurs when the defendant

has reached a point where it was unlikely that he would have voluntarilydesisted from his effort to commit the crime.

- Unequivocally (or res ipsa loquitur) Test an attempt occurs

when a persons conduct, standing alone, unambiguously manifests his

criminal intent.- Abnormal Step Test Step taken that would be considered

abnormal by a law abiding individual

- Model Penal Code Test Substantial steps were taken

Facts:

- Always a specific intent crime- Public Policy: It is a crime as we want to stop crime from being

committed

- Attempt is not a crime by itself, it is attached to the crime being attempted,such as Attempted Burglary


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- Has to be more than Mere Preparation

Defenses:

Valid Defenses:

- True Legal Impossibility Attempt to do something that you think to bea crime, but it is not a crime. Cant be charged if there is no crime.

- Abandonment Allowed in some jurisdictions, but must be voluntary

and complete.

Invalid Defenses:

- Factual Impossibility Attempt to commit a crime, but circumstancesmake it impossible to complete, Example: Pickpocket but individual has

nothing in their pocket.

C. Possession Exercise of dominion and control over the object with an intent to

possess it, having had a reasonable opportunity to dispossess the object.(Examples: Burglary tools, Narcotics, etc.).

D. Solicitation Asking, requiring, inviting, requesting, hiring, or ordering another

person to commit a crime with the intent that the other person actually commit the

crime.

2 Views:

- Some states say that communication has to be completed.

- Model Penal Code states that communication does not have to becompleted.

Notes:

- Innocent Instrumentality: If a person is asked to commit

a crime, and they do not know that it is a crime, then they are an innocent

instrumentality.- Always requires a specific intent.

II) Determine Mens Rea: Willfulness of the Act/Omission:

- Was a Mens Rea Required? Answer is yes unless it is Strict Liability.

- Common Law can approach crimes by either culpability or by an elemental approach.

- Model Penal Code only uses the elemental approach.

A. 2 Types of Intent:

General Only one intent in the statute

o Valid Defenses:

- Mistake of Fact Must be a reasonable one or it is not a

defense.

- Involuntary Intoxication If voluntary, it is not a defense.


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o Classification of Crimes:

- Rape

- Murder

- Battery- Involuntary Manslaughter

o Notes:- All crimes require a general intent

- A jury can infer general intent from the doing of the act.

Specific More than one intent in the statute

o Requirements:

- Doing of an act with a specific intent to

commit the crime.

o Valid Defenses:

- Voluntary Intoxication

- Mistake of Fact

- Otherso Classification of Crimes:

- Premeditated Murder 1st Degree

- Attempt

- Solicitation

- Assault- Robbery and Larceny

- Forgery

- False Pretenses Statutory language must include intent to defraud.- Embezzlement

o Notes:

- Must have the general intent along with the specific intent- The existence of the specific intent cannot be inferred from the doing

of the act.

B. Transferred Intent: When the defendant intends a harmful result to Person A

and in trying to carry out that intent, they cause a harmful result to Person B, theintent to harm Person A is transferred to Person B.

Exceptions to Transferred Intent:- Intend to harm one person, but you also harm another

person.

- Misaim Not Misidentification, because withmisidentification, there is no need to transfer the intent, the person that theharm was intended for was harmed

- Statute If the statute specifically says that the intent

cannot be transferred, then no intent can be transferred.- Different Crime If a different crime than was intended

is committed, then the intent for the first crime cannot be transferred to the

second.


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C. Strict Liability:

Considerations:

- If there is a Mens Rea, then it is not

Strict Liability.- Crime does not require an awareness of

all factors.

o Likely to be Strict Liability:

- Public Welfare Offenses

- Low Stigma Offenses

- Need for SimpleProsecution Example: Speeding

- Malum In Se Crimes

Crime that is inherently evil.

o Not Likely to be Strict Liability:

- Harsh Punishment

- High Stigma Crimes

- Common Law Crimes- Malum Prohibitum Crime that is wrong because the legislature says

that it is wrong.

Notes:- Mistake of Fact and Voluntary/Involuntary Intoxication are not defenses.

- Strict Liability Crimes are disfavored in the law as they would not

achieve deterrence or rehabilitation since the person doesnt have anyintent to commit the crime in the first place.

- Model Penal Code states that there is no strict liability unless punishment

does not include jail time.- Underlying policy of Strict Liability is efficient and quick justice.

Model Penal Code:

Elements: From highest standard to the lowest:

- Purposely Conscious object to engage in conduct or to cause a result.

- Knowingly Aware of the nature of ones conduct or the existence of

circumstances and aware that ones conduct will be practically certain tocause the result.

- Recklessly Conscious disregard of a substantial and unjustifiable risk and agross deviation from a law abiding standard of conduct.

- Negligently Should have been aware of a substantial and unjustifiable risk

and a gross deviation from a reasonable persons standard of care.

Notes:


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- Willfully requires proof that the defendant knew conduct was unlawful,

not that the defendant also knew of federal statute requirements.

- If you are at a level or above, then you have met the requirement for thatstandard.

III) Causation:

2 Types of Causes:

o Actual Cause (or Cause-in-Fact)

[A] Common Law

[1] But-for test There can be no criminal liability for resulting social harmunless it can be shown that the defendants conduct was a cause-in-fact of the

prohibited result. In order to make this determination, courts traditionally

apply the but-for orsine qua non test: But for the defendants

voluntary act(s), would the social harm have occurred when it did?[2] Multiple Actual Causes When a victims injuries or death are sustained

from two different sources, any of the multiple wrongdoers can be found

culpable if his act was a cause-in-fact of the injury or death. It is notnecessary that any act be the sole and exclusive cause-in-fact of injury.

[3] Accelerating a result Even if an outcome is inevitable e.g., everyone dies

if defendants act accelerated death, he can be found criminally liable. Thebut-for test can be stated in such circumstances as but for the voluntary act

of the defendant, would the harm have occurred when it did? E.g., a

defendant shoots a terminally ill patient may still be found guilty of homicide

since although the victims death was inevitable, it would not likely have

occurred when it did but for the defendants unlawful act.[4] Concurrent Causes If, in the case of infliction of harm from two or more

sources, each act alone was sufficient to cause the result that occurred when itdid, the causes are concurrent and each wrongdoer can be found criminally

liable.

[5] Obstructed Cause If a defendant commits a voluntary act intending tocause harm e.g., shooting a victim in the stomach intending to kill the victim

but another wrongdoer commits a more serious injury that kills the victim

sooner, the initial wrongdoer might only be convicted of attempt to kill sincethe subsequent wrongdoers act obstructed his goal to killing the victim.

[B] Model Penal Code The Model Penal Code applies the but-for (sine quanon) rule.

o Proximate (or Legal) Cause; Common Law

[A] Direct Cause An act that is a direct cause of social harm is also a proximatecause of it.


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[B] Intervening Causes An intervening cause is an independent force that

operates in producing social harm, but which only comes into play after the

defendants voluntary act or omission; e.g., the intervention can occur as aresult of wrongdoing by a third party, or as the result of a dangerous or

suicidal act by the victim, or a natural force (an act of God). When an

intervening cause contributes to the social harm, the court must decidewhether such intervening cause relieves the defendant of liability. If so, the

intervening event is deemed a superseding cause of the social harm.

[1] De Minimis Contribution to the Social Harm In some cases, if thedefendants voluntary act caused minor social harm compared to the social

harm resulting from a substantial, intervening cause, the law will treat the

latter as the proximate cause of the social harm.

[2] Foreseeability of the Intervening Cause Some cases have held that thedefendant cannot escape liability if the intervening act was reasonably

foreseeable, whereas an unforeseeable intervening cause is superseding in

nature. However, in determining foreseeability, the law tends to

distinguish between responsive (or dependent) and coincidental (orindependent) intervening causes. A responsive intervening cause is an

act that occurs as a result of the defendants prior wrongful conduct.Generally, a responsive intervening cause does notrelieve the initial

wrongdoer of criminal responsibility, unless the response was highly

abnormal or bizarre. E.g., a defendant who wrongfully injures another is

responsible for the ensuing death, notwithstanding subsequent negligentmedical treatment that contributes to the victims death or accelerates it.

However, grossly negligent or reckless medical care is sufficiently

abnormal to supersede the initial wrongdoers causal responsibility. Acoincidental intervening cause is a force that does not occur in response

to the initial wrongdoers conduct. The only relationship between the

defendants conduct and the intervening cause is that the defendant placedthe victim in a situation where the intervening cause could independently

act upon him. The common law rule is that a coincidental intervening

cause relieves the original wrongdoer of criminal responsibility, unless theintervention was foreseeable.

[3] Apparent Safety Doctrine A defendants unlawful act that puts a victim

in danger may be found to be the proximate cause of resulting harm,

unless the victim has a route to safety but instead puts herself in furtherharm, which causes the injury of death. E.g., a spouses physical violence

causes his wife to flee the house on a freezing night, and although the wife

can find nearby shelter with a relative or friend, decides to spend the restof the night outside, and dies from freezing temperature.

[4] Free, Deliberate, Informed Human Intervention A defendant may be

relieved of criminal responsibility if an intervening cause, e.g., a victimchose to stay outside in the freezing night and consequently died, was the

result of a free, deliberate and informed human intervention. A subsequent

dangerous action that caused the victims injury or death would not relieve

the defendant of liability is such act resulted from duress.


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[5] Omissions An omission will rarely, if ever, serve as a superseding

intervening cause, even if the omitter has a duty to act. E.g., a fathers

failure to intervene to stop a stranger from beating his child will notordinarily absolve the attacker for the ensuing homicide, although the

father may also be responsible for the death on the basis of omission

principles.

o Proximate Cause (Actually, Culpability); Model Penal Code

- Unlike the common law, the but-for test is the exclusive meaning of

causation under the Model Penal Code. The Code treats matters ofproximate causationas issues relating instead to the defendants

culpability. That is, in order to find the defendant is culpable, the social harm

actually inflicted must not be too remote or accidental in its occurrence from

that which was designed, contemplated or risked. [MPC 2.03(2)(b), (3)(c)] Insuch circumstances, the issue in a Model Code jurisdiction is not whether, in

light of the divergences, the defendant was a proximate cause of the

resulting harm, but rather whether it may still be said that he caused theprohibited result with the level of culpabilitypurpose, knowledge,

recklessness, or negligencerequired by the definition of the offense. In the

rare circumstance of an offense containing no culpability requirement, the

Code provides that causation is not established unless the actual result is aprobable consequence of the defendants conduct. [MPC 2.03(4)] This

would mean that in a jurisdiction that recognizes the felony-murder rule, but

which applies Model Penal Code causation principles, a defendant may not beconvicted of felony-murder if the death was not a probable consequence of his

felonious conduct.

IV) Attendant Circumstances An attendance circumstance is a fact or condition

that must be present at the time the defendant engages in the prohibited conduct and/orcauses the prohibited result that constitutes the social harm of the offense. Often an

attendant circumstance is an element of the offense, e.g., the crime of burglary the

breaking and entering of the dwelling house of another at nighttime contains an

elemental attendant circumstance that the crime must occur at night.

II) Crimes Against the Person:

Homicide:

o Common Law Murders: The unlawful killing of a human being with

malice aforethought.

- Malice Aforethought: Acting with a depraved heart from these

states of mind:a) Intent to kill

b) Intent to inflict great bodily harm


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c) An awareness that human like is being unjustifiably risked (ex.

shooting into a moving train)

d) Intent to commit a felony

o Common Law Voluntary Manslaughter: The unlawful killing of a

person without malice, upon a sudden heat of passion due to reasonable

provocation.- Elements:a) Sudden and intense heat of passion in the mind of an ordinary person

causing him to lose self-control

b) Provocation (ex. threat of deadly force or finding spouse in bed with

another)c) No cooling-off period in time for a reasonable person

d) Defendant did not cool off

e) Words are insufficient provocation unless they convey informationsufficient to provoke heat of passion

o Common Law Involuntary Manslaughter: Death caused by criminal

negligence or by an unlawful act (ex. unintended killing in the course of amisdemeanor).

o Statutory 1st Degree Murder: Under statutory scheme, all murders are

Second Degree unless Deliberate and Premeditated killing.- Premeditated when defendant actually reflected on the killing

even if only briefly

- First Degree Felony Murder:a) Committed during the course of a felony including inherently

dangerous felonies (arson, kidnapping, robbery, burglary, and rape)

b) Defendant must be guilty of the underlying felonyc) Death should be reasonably foreseeable

d) Place of temporary safety once felon has reached this, subsequentdeaths caused are not felony murders

e) Redline Rule victim or police officer resists or shoots felon toprevent crime or escape, co-felon is not liable for the death of the

felon, but still can be liable for the death of a 3rd party bystander

o Causation:

- Year and a Day Rule: If the person dies within a year and aday of the injury by defendant, then the defendant is responsible for the

death.

- The defendants conduct must be the factual cause of the death(but for the defendants conduct, the result would not have occurred).

- Superseding Factor: Something that breaks the chain ofproximate causation between the defendants act and the victims death

(defendant remains responsible for all natural and probably consequencesof his actions).

Battery: Unlawful touching of another person resulting in an offensive touchingor bodily injury.

- In some jurisdictions, criminal negligence is enough and a battery does not

need to be intentional.


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- Touching need not be direct (ex. unlawfully applying force to object resulting

in offensive touching or bodily injury to person)

- Aggravated Battery: In most jurisdictions, batteries are aggravated andpunished as felonies, based on:

a) The means used to perpetuate the offense (ex. a deadly weapon is

used).b) Resultant harm (ex. serious bodily harm).

c) Special status of the victim (ex battery of a police officer in the

performance of his duty).

III) Model Penal Code Offenses:

Inchoate Crimes:

o Criminal Attempt: Purposely engages in criminal conduct with an act

that constitutes a substantial step toward commission of a crime (ex. lying in

wait, enticing a victim, scouting the site of a crime, possession of unlawful

materials, or soliciting an innocent agent).o Criminal Solicitation: Purposely encourages another verbally or by

conduct to commit a crime, with the intent that they actually commit the

crime.

o Criminal Conspiracy: Purposely agrees to aid or engage in crime with

another- Requires an overt act.

- Joint liability with co-conspirators whether they are known or

unknown.

Criminal Homicide: Purposely, knowingly, recklessly, or negligently causes thedeath of another.

o Murder:- Purposely or knowingly

- Recklessly by manifesting extreme indifference to human life

- Felony of the 1st Degree- Aggravating circumstances, such as a killing during the attempt or

commission of a felony

Sort of like felony murder Code provides that causation is

not established unless the actual result is a probable

consequence of the defendants conduct. [MPC 2.03(4)]

This would mean that in a jurisdiction that recognizes thefelony-murder rule, but which applies Model Penal Code

causation principles, a defendant may not be convicted offelony-murder if the death was not a probable consequence ofhis felonious conduct.

o Manslaughter:

- Recklessly

- Committed under extreme mental disturbance with a reasonableexplanation

- Felony of the 2nd Degree


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o Negligent Homicide:

- Committed Negligently

- Felony of the 3rd Degree

Felonies:

o Rape: Male who has sexual intercourse by force or impairment of power

with a female who is not his wife, or deviate sexual intercourse by force orimposition (engages or causes another to engage in deviate sex).

- Defenses:a) Mistake as to Age

- Unavailable under 10

- Over 10 Proof by preponderance of the evidenceb) Spouse

- Unavailable if living apart under judicial decree

- Woman may be convicted as an accomplice

c) Sexually promiscuous complainants- Proof by preponderance of the evidence

d) Prompt Complaint- Within 3 months

V) Defenses:Common Law:

Mistake of Fact:- General Intent Crimes Must be a reasonable mistake

- Specific Intent Crimes Any mistake, reasonable or unreasonable,

is a defense (ex. taking someones book thinking it is yours lack the state of

mind to commit larceny, no intent to deprive).- Strict Liability Crimes Mistake is no defense

Mistake of Law:

- Not a defense unless the crime requires knowledge of some aspect of the lawother than just the existence of the statute making it a crime.

- It is a defense if ignorance negates a specific state of mind.

- It is a defense if the statute is not reasonably available.

- It is a defense if the defendant reasonably relied on an official interpretation ofthe law which was later declared invalid.

- It is a defense if the defendant was given erroneous advice from one who is

charged with administering the law.

- Erroneous advice from an attorney is not a defense. Consent:

- Generally, the victims consent is not a defense unless it negates an element ofthe defense (ex. a defense to forcible rape is that the victim consented to

intercourse).

- Unavailable as a Defense for the Following Reasons:

o If by youth, mental disease or defect, or intoxication, the victim is

unable to make reasonable judgment.


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o If induced by force or duress.

o If prevented by law defining offense.

o If legally incompetent.

o Assent by deception dictated by circumstances.

Intoxication:o Voluntary Intoxication:

- Not a defense to a general intent crime, it is neither anexcuse or justifiable.

- Not a defense to crimes involving negligence, recklessness,

or strict liability.

- Can be a defense to specific intent crimes, provided theintoxication prevents the defendant from formulating the requisite intent

(can bump 1st degree murder down to 2nd degree murder).

o Involuntary Intoxication: Taking an intoxicating substance

without knowing its nature or under duress or medical advice.

- It is a defense to both general and specific intent crimes.- Most jurisdictions treat this the same as insanity, if because of

intoxication, defendant meets whatever test the jurisdiction adopted for

insanity.

VI) Model Penal Code Defenses:

Ignorance or Mistake of Fact or Law:- Must negate the required state of mind.

- Reduces the grade and degree of offense, or it can be a complete defense to a

specific intent defense.- Not available in negligent or reckless use of force.

- Available if there is the belief that ones conduct does not legally constitute anoffense (ex. statute not known and one acts in reasonable reliance on official

statement).- The standard of proof is Preponderance of Evidence (by ).

Intoxication:

- Only if not self-induced or pathological and at the time of conduct, thedefendant lacked substantial capacity to appreciate the wrongfulness of his

actions or to conform his conduct to the requirements of the law.

- Available for specific intent crimes.

Consent:

- Unavailable if by youth, mental disease or defect, or by intoxication, the

victim is unable to make a reasonable judgment.- Unavailable if induced by force, duress, or deception.

- Unavailable if prevented by law defining the offense.

- Unavailable if the victim is legally incompetent.

criminal_outline part 3

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