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CRIMINAL LAW OUTLINE INTRODUCTION I. Structures and Procedures a. Decentralized & redundant b. Discretion = Power i.

Police, judges have it c. Ds role is passive i. If poor, lack control because they dont have money or social status, at mercy of others d. Enforcement of Standards of Conduct? i. Maybe Yes: 1. Ubiquitous 2. Many state institutions rely on the criminal justice system to do their punishing. ii. Maybe No: 1. Social control impart standards of conduct/morals onto society 2. Morals are already imbedded iii. Problem: hard to know what society actually believes. II. Pleas a. Only 5% go to trial i. Most serious go to trial 1. most who go to trial get convicted (all categories of felonies) ii. Benefits to D: get a lesser sentence, get it over with iii. Benefits to Prosecution: lower caseload, unavailable or unwilling witnesses b. Problems: i. People may plea even if innocent, but dont think D can prove innocence ii. Discounting the sentence. If guilty, D is getting off easy. iii. Empowers prosecutor, personal views/biases may take over iv. May be pleading guilty to crime substantively different than what charged with III. Trials i. Jury Selection 1. typically, middle class or upper middle class, wealthy, well-educated people, are often excluded from jury selection process. a. Historically, non-whites excluded, now excluded by residency, legal status in the country, age and systematically excludes people with elite status. b. Populist institutions made up of common folk c. Arguments that the jury is just a creature of judicial authority and the judge is really running the show. 2. Exclusion for cause: Prejudice or bias will dismiss you from jury duty, competency (fine line between discrimination) 3. Federal Court judge makes all the determinations, but lawyers can comment/participate 4. State Courts lawyers can move to exclude jurors, have more say 5. Peremptory Challenges: a. Exclude for no reason at all. But, you cant discriminate in doing this. If so, the other party can object to have you give your reasoning. 6. Jury Trial vs. Bench Trial a. Through the 14th and 6th Amendments, D has a right to jury when: b. D faces more than 6 months incarceration c. Serious Fine d. Some other onerous sentence, short of incarceration e. Multiple sentences can be combined to exceed 6 months H. Larson White Spring 2012

CRIMINAL LAW OUTLINE f. See Duncan v. Louisiana: D denied jury because his crime was a misdemeanor. 7. Exception: State can avoid jury trial by offering a promise that D will not be punished in excess of the thresholds. a. Can do this without necessarily the consent of the D. 8. A couple states have put on a ballot a state Constitutional amendment to give the prosecution the right to veto a jury. 9. Technically a jury is a right, so you could waive it 10. Advantages a. Jurors possibly not your peers, but likely a lot more similar than just a panel of judges b. Can try to manipulate jury (get hung jury, find a single sympathetic juror) ii. Disadvantages 1. Competency a. Can an average juror understand instructions or what the lawyers are saying? 2. Jury nullification a. Even if the law is on your side, they may not like you. i. US v. Dougherty judge denied jury instructions that would explicitly tell the jury they can nullify. Reading of Indictment/Bill of Information formality, often waived Opening Statements State First 1. Not evidence, just give a narrative of which facts will be presented Witnesses Subject to Direct/Cross Closing Statements Charging the Jury give instructions (enormously important, court can put its own gloss on the statutes) 1. Tells what is required as a matter of law 2. Inform the jury as to the substance of the law, what it means 3. Uniform Jury Instructions some states have them, judges can still amend them. 4. Lawyers can litigate about this. 5. Ethical issues: how can you say a statement that was objected about shouldnt be considered dubious value because they have already heard that. Sometimes jury instructions are super long, confusing etc. Jury Deliberates 1. Take evidence and see if it proves elements of the crime. a. Element a fact necessary to prove Ds guilt. i. Their job is to determine guilt, not innocence. ii. Patterson v. NY the legislature may construe things that would be elements of the crime as an affirmative defense. (unclear how far this can be taken) 1. This is the idea that the greater includes the lesser: the state can make any issues that the courts are not likely to require, an affirmative defense. b. Sentencing Facts i. Facts, other than prior convictions, that must be proved beyond a reasonable doubt ii. Some courts give sentence to the jury iii. Some courts give facts to the jury, and judge sentences H. Larson White Spring 2012

iii. iv. v. vi. vii.


CRIMINAL LAW OUTLINE iv. Some have suggestive sentencing, not dispositive. 2. Hold the evidence to an evidentiary standard of Proof beyond a reasonable doubt (In re Winship) a. In re Winship i. All facts that the proof of which is required in the definition of the crime are elements and require proof beyond reasonable doubt. 1. Sometimes these elements are different from what the text of the crime suggests. 2. Proof beyond reasonable doubt not usually defined to jury. Just know it is more than clear and convincing evidence or a preponderance of the evidence. ii. Actual guilt may not equal legal guilt. What is reasonable? 50.1% 99.9% iii. Interpretation of Due Process Clause 1. Prosecutor ethically required not to proceed unless they believe evidence will show a judge or jury of Ds guilt. 2. Judge supposed to terminate is evidence does not show guilt beyond reasonable doubt. iv. Burden of proof: 1. P has the burden of proving the case v. Is it just the burden of production? Also the burden of persuasion? 1. Civil Standard: P has burden of production nad D has burden of persuasion. 2. Mixed Burden 3. Mullaney v. Wilbur: burden cannot be shifted to D b. Defenses Raised: i. Perfect: 1. Results in acquittal ii. Imperfect: 1. Reduces the grade of the crime 2. Existence of affirmative defenses puts the burden on the D in some respect, at least the burden of production and sometimes the burden of persuasion. c. What is evidence? i. Testimony that was presented in the trial (not your preconceived notions or knowledge obtained elsewhere, exclude discrete knowledge about the case) ii. Only includes information that comes to the jury through the procedure of trial (witnesses) iii. Must be conveyed by a living witness, they can then be confronted and challenged by the other side iv. Some rare exceptions. v. Must have custodians of the evidence make sure it is tested, accurate, etc. d. What can keep evidence out? i. Must be relevant: Probative & Material ii. Privilege Doctor/Patient, Self-Incrimination iii. Corrupted? the method it was obtained, without warrant? iv. Substantially more probative than prejudicial. e. People v. Zackowitz H. Larson White Spring 2012

CRIMINAL LAW OUTLINE i. Possession of other guns cant be admitted goes to general disposition of D ii. character evidence disfavored in criminal proceedings 1. violates presumption of innocence 2. D is supposed to be tried for what they did, not who they are. iii. Exceptions: 1. When introduced by D a. Why Ds often dont testify 2. Signature crime 3. Sex offenses a. Idea (although maybe not scientific evidence) that people who commit sex crimes are substantially more likely to commit them again 4. Show something other than guilt a. i.e. motive 5. Impeachment a. D or other witness testified to something and the prosecution says you have to allow character evidence to show that the evidence is false. f. Brady Rule i. Prosecutor has to turn over exculpatory evidence to the D. There is no attorney client privilege because the client is the state. ix. Verdict 1. Almost all state require unanimous juries. a. Even those that dont require death penalty verdicts to be unanimous. b. Hung Jury no possibility of reaching a verdict i. What happens? Can be retried or just drop the case? 2. Nullification see US v. Dougherty (protesting Vietnam War at Dow Plant) a. Right to acquit appellants without regard to the law and the evidence. i. Problems with Nullification 1. Put burden on the jurors 2. Knowledge jurors know they can nullify? If it is in the instruction, it adds legitimacy to the decisions 3. Anarchy if you explicitly give jurors this right, you open the door to anarchy and chaos. 4. Confusion may not create complete chaos but jurors may get confused and abandon their respect for the process. Could lawyers go so far to just preach about nullification 5. Doesnt actually help the D instead leads to hung juries. ii. Reasons 1. Character of the D can be legitimate, but not always 2. Send a message that the prosecution, law or state is wrong 3. Broader political purpose racial injustice, discriminatory effect of a law. 3. Acquittal? (Not Guilty Verdict) a. Double Jeopardy, cannot be retried even if there was clear issues. i. 1 time ever that this was ignored involved death threats to jury, but usually that isnt even enough. Can be charged with jury influencing (or something like that) H. Larson White Spring 2012

CRIMINAL LAW OUTLINE b. Not guilty means that the state hasnt proven its case against you. Doesnt necessarily mean you didnt do the crime. 4. Conviction? (Guilty Verdict) a. Can be appealed. 5. Inconsistent Verdicts a. D convicted of 2 crimes even though he cannot logically be convicted of both. i. The elements of one are present in the other, or opposite from the other. x. Sentencing 1. Milken can be ambiguous, especially when judges explain their sentence. Looks at many factors. 2. Guidelines a. State with a range, facts are found to determine how you will be sentenced b. Seems to get rid of bias, but some judges want to have the freedom to change a sentence to what they think represents justice. 3. Open ended sentencing hearing a. No guidelines, no forms, get a jury trial for your sentence b. Way too expensive. Could never happen. ??THEN WHY DO WE LEARN IT?? ISSUES IN PUNISHMENT I. Types of Punishment i. Jail/Prison 1. Removes liberty a. Physically i. Space is limited, lost access to free movement ii. Deprived of legitimate sexual conduct iii. Denied access to life outside iv. Threats of violence 1. Rape (5-7% forcible rape in male prisons, more in cases of bribery and blackmail) 2. Murder/Fighting 3. Jail tends to be more dangerous than prison. a. No or little classification in jail, all based on charges, less professionally run. b. Mentally i. Told what to do in every step of life ii. Denied access to loved ones iii. Denied privacy 2. Prison is most iconic and onerous punishment. a. Only about 200 years old b. Walnut Street Jail in Philadelphia i. Start of common folk being incarcerated for long periods of time (1890s) c. Eastern State Prison i. Penitentiary lifestyle 1. Cells, high walls, prisoners required to work, work in combination with silence and meditation. d. Auburn Model NY H. Larson White Spring 2012

CRIMINAL LAW OUTLINE i. More like modern prisons ii. Locked in cell at night, circulate around the prison during the day to work. iii. Emphasis on work in prisons is historically strong 1. May be less work now e. Panopticon: idea that you are being watched all the time f. US has highest rate of incarceration that nay other country in the world. Higher now than at any point in history. i. Not even demographically, geographically or by social class. 1. Differential rates of commission and enforcement of crimes. 2. Definitions of crimes favors some groups over others as well. ii. Depravation of Rights 1. Right to vote, hold political office, have guns, live in certain places etc. 2. Seen as civil death a. At times, sterilization, right to marry etc. i. Loss of reproductive freedom formally with women, informally with men originally (lynching castration) or formally now as a trade off for sex crimes b. Hurts social status because of stigmas iii. Fines 1. Money is fungible 2. Deprivation of ones access to materials and services of life. iv. Shaming? 1. If they are conditional, they are constitutional. (Also banishment) 2. May be rehabilitative. v. Corporal punishment 1. Beating formally stopped in last state in 1960s. Justifications i. Justifications vs. Explanations 1. Justifications are not explanations or empirical accounts of what punishment does or why or how it came to exists. Sometimes the justifications do align with the empirical realities of the punishment. 2. Prison is example of both a. Evolved to control working class surplus of people. b. Less eligibility i. Conditions in prison have to be on average no better than the working class conditions outside prison. If not, people from that class will be indifferent to the punitive aspect of going to prison. ii. Example: health care in prison isnt that bad, better than none, which most prisoners have ii. Justifications give credence to criminal punishments. iii. Theories 1. Moral/Retributive a. Education/Moral Influence Theory i. Broader than deterrence ii. People are influenced to respect the criminal law and abide its dictates by the culture of punishment. H. Larson White Spring 2012


CRIMINAL LAW OUTLINE iii. White says often used to justify when they cant justify using any other form. b. Retribution i. Dates back to the Bible. ii. Eye for an eye. Punish become people deserve it. iii. Moral argument, but invokes more that just what is morally right. Will satisfy the needs of the people. (Utilitarian argument) iv. No universal hierarchy on retributivist arguments v. Everyone has a morality even Hitler but some argue that because more people adhere to ours, it is superior. vi. Blameworthiness 1. Regina v. Dudley and Stephens killed other guy on boat a. Even though custom of the sea he probably did not really have a chance to assent. b. Self-defense would be the only defense to killing someone this isnt evident here c. Duress cannot be invoked with murder (fit somewhere else?) WHERE DOES REHABILITATION COME IN? In CO- for sex offenders, big rehab program have an indeterminate length of sentence bottom is set, ceiling is not, could be life. Practical/Utilitarian c. Deterrence i. Jeremy Bentham is the father of this theory. ii. General Deterrence 1. Punish one to make an example for another iii. Specific Deterrence 1. Make one person learn his lesson. Put them in an economy of pain. Deterred from future crimes by the discomfort of the punishment. iv. Problems: Doesnt work as well as some may think 1. Do people actually calculate? Are they rational actors? a. If so, does calculation occur in a refined fashion? Maybe they also calculate the likelihood of getting caught. 2. Are all people deterred in the same way? 3. Some may be un-deterbale: a. Mentally ill 4. Should on man be the means to anothers end? 5. Should we punish even harder on crimes when we know we cant catch everyone so as to deter? 6. Punishment must be balanced with the crime to effectively deter a. If death penalty for every crime, undermines the whole structure. d. Incapacitation i. Justified the punishment because you are putting people in the position that they cannot commit crimes. ii. Problems 1. Runs against basic notions of civil liberty and law. H. Larson White Spring 2012

CRIMINAL LAW OUTLINE 2. Can lock up all men between 14-40 and prevent 90% of serious violent crime, but most people have problem with preventative incapacitation. 3. Over prosecution of drug crimes in some areas a. When one goes to prison, another steps in to take their role b. Increased violence can occur when multiple people are fighting for the role 4. Can you use the crime committed as measure of a future result? a. Some crimes may not need 50 years in jail to discourage committing again. b. Can let them out at a certain age that they will no longer be violent 5. Addicts a. Do they get proper treatment in prison? 6. Inconsistency of prison sentences for same crimes 7. Crimes continue to occur in prison a. These crimes arent counted b. Do criminals deserve it? i. Prisons are incubators of morality, most come out worse. ii. Child molesters, and a couple other exceptions are at higher rates for crime in prison. Otherwise, everyone susceptible. 8. Parole is dysfunctional system a. Most people tend to go back to prison. iii. In a true way, prisons deter, so long as you dont count the crimes that occur in prison. iv. Decrease in prison population in 2010 for first time since 1978. 1. Caused by $ primarily 2. Very secondary reason is decrease in rate of violent crimes. v. Steady, but slow growth in privately run facilities iv. Public Safety 1. Some laws not specifically for safety, some laws passed in the south to increase crime rate so that they could get labor for farms 2. Maybe doesnt deter anyone and thus doesnt make you safer. What to Punish i. Limits on punishment: 1. Protected Conduct a. Conduct should be left free in a liberal society b. Use of punishment to govern conduct produces more harm than good. c. Defn of criminal conduct changes over time i. Lawrence v. Texas sodomy law. 1. Court says, just because something has historically been seen as amoral is not a reason to outlaw it now. 2. Dissent morals are often incorporated into laws. Perhaps society will fail without common agreement on what is H. Larson White Spring 2012


CRIMINAL LAW OUTLINE good and evil. But, we have changed our views on a lot of moral issues over the years. Does that make us weaker? 2. Adverse Consequences of Punishment a. Moral issues may be criminalized using illegal measures by police or in other discriminatory ways. Ex. prostitution. 3. Over criminalization a. Too many things, or one thing too criminalized creates reduced esteem for the law. DEFINING CRIMINAL CONDUCT I. Legality a. Nulla poena sine lege no punishment without law b. Common Law Crimes? i. Commonwealth of PA v. Mochan D made inappropriate comments to a woman on the phone. Court said, despite no law on point, the common law is broad enough to punish any act injurious to public morals. ii. Notice issue? iii. Separation of powers? Should the judiciary be able to make these laws? Would prosecutors now just take any case and see if it sticks? iv. Most jurisdictions have abolished this sort of common law making. SC never held unconstitutional 1. Doctrine of Criminal law by analogy (opposite of the Rule of Lenity) a. Replaced nulla poena sine lege with null acrimen sine poena (no crime without punishment) c. Rule of Lenity if ambiguous, go slow to protect the D i. MPC got rid of it, idea that Ds would have done it anyway and dont care what the law says d. Retroactivity i. Keeler v. Superior Court killed a baby in the womb Ct said due to fair warning concerns (part of due process) he did not have reason to know it would be murder, and thus, not liable. ii. Rogers v. Tennessee ok to make retroactive judicial decisions and incorporate the common law guy took 15 months to die, old rule about 1 year and 1 day was ignored because there was no risk of death penalty and other states had abolished this law. iii. Also, can apply common law prospectively ok this time, and from here on out, illegal. e. Vagueness i. Ways a law can be too vague (City of Chicago v. Morales (loitering law) 1. Minimal overt act requirement a. Criminalizes passive conduct b. Lacks intent element? 2. How much does it impinge of rights of offender? a. Are the states interest legitimate? b. Fail to provide adequate notice of what conduct it prohibits 3. Authorize and encourage arbitrary and discriminatory enforcement a. Explicitly Morales b. Implicitly (by how the cop would have to interpret the statute) Papachristou II. Proportionality a. Punishment should be fair in relation to the crime i. Uncertainty and distance will weaken the effect of punishment H. Larson White Spring 2012

CRIMINAL LAW OUTLINE ii. Punishment in excess of what is deserved may be punishment without guilt. 1. People may stop thinking about the crime and focus on the D as a victim. 2. Upper limits of punishment a. most countries consider death penalty and life sentences (with or without parole) as excessive. b. Many countries require that those who get life sentences be entitled to petition for parole. c. About 25-30 countries prohibit life sentences ever, usually by capping the punishment (around 25-60 years, a lot of South American and some European countries) US had a similar system until about the 1970s iii. Rooted in 8th Amendment? Small piece likely wont win until capital punishment 1. Look at following to determine if GROSSLY DISPROPORTIONATE: (Ewing v. CA 3 strikes law) a. The gravity of the offence and the harshness of penalty b. Sentences on other criminals in the same jurisdiction c. Sentences on the same crime in other jds iv. Use grading system to ensure proportionality v. Consistent with retribution (make sure the punishment is consistent with the degree of the crime) and deterrence (conforming the punishment to a point that adequately, but not excessively, deters the actions in the future) Rehabilitation doesnt say much about proportionality. b. Bentham Principles of Law i. The value of the punishment must not be less than the value obtained by committing the crime. ii. If 2 offences are in competition the punishment for the greater must induce the man to prefer the less. iii. Each offence must have an adjusted punishment to encourage those from abstaining from doing more than they would have originally ($ theft should be adjusted based on amount of $) iv. Punishment shouldnt be too harsh to dispel the crime. (we are naturally inclined to err on the side of too much) v. punishment may exceed profit of crime, increased in magnitude as it falls short in certainty (proportionally) vi. punishment must be further increased in magnitude in proportion as it falls short in certainty Culpability liability or guilt i. Actus Reus 1. Objective (external), action 2. Subelements (constituents) a. Voluntary Act i. Bodily movement of the D 1. Cannot punish someone for their status being homeless 2. Universal concept even if not in statute. ii. Excludes events motivated by something or someone other than the D 1. Examples: a. Reflex, convulsion b. Movement during unconsciousness


H. Larson White Spring 2012

CRIMINAL LAW OUTLINE i. People v. Newton Black Panther, shot police but said he wasnt conscious, didnt know he had done it because he was in shock. c. Sleep i. Cogdon woman acquitted after killing daughter in sleep, not insane, just unwell. d. conduct during hypnosis i. But you likely voluntarily got hypnotized e. Special conditions i.e. Epilepsy i. During episodes, involuntary actions ii. Knowing your condition, can be found negligent for doing ordinary things like driving. f. Habits i. MPC allows it, but notes say considered voluntary. g. involuntary acts are not blameworthy do not require treatment like insanity defense does 2. Martin v. State every piece of the activity had to be voluntary. He voluntarily drank, voluntarily was obscene, but not voluntarily go into public, cops took him there. a. Self-induced unconsciousness, like drinking, is not typically a defense iii. Does not require INTENT iv. Omissions 1. Generally not equal to the act, unless a LEGAL duty to act. Legal if defined by: a. Statute b. Status or relationship to the other i. Parent to Children ii. Spouse to Each other iii. Not Parents to adult children or vise versa iv. Not boyfriends, girlfriends, mistresses v. Probably step parents to step children c. Assumed contractual duty d. Voluntarily assumed the care and secluded the helpless person so as to prevent others from rendering aid 2. Moral obligation is not legal obligation a. Laws may impose duty i. Duty to Rescue 3 states & Europe and sometimes if you cause the harm ii. Good Samaritan 3 states (only for victims of crimes, not natural events) iii. Duty to report states abolished, now based on professions and certain crimes, or criminal is intentionally concealing, White collar crime? Yes for Medical professions and abuse 3. Must engage in an affirmative act to commit a crime a. Taking someone off life support is different from actively causing the death. H. Larson White Spring 2012

CRIMINAL LAW OUTLINE v. Possession 1. Knowledge is required b. Causation i. Not all crimes feature this c. Social Harm i. Conduct of the D ii. Attendant Circumstances 1. Facts surrounding the event iii. Result ii. Mens Rea 1. Subjective (internal to the mind of D and no one else), intent a. Not always part of criminal liability, used to be strict scrutiny b. Easier to look at AR and MR together work together 2. Must ID corresponding mens rea elements to each of the social harm elements (conduct, attendant circumstance, result) 3. First, Determine the material elements 4. Then, Determine which type of mens rea is required for each element 5. Types of mental culpability (mens rea) a. Purposeful i. Conscious object to engage in the conduct b. Knowledge i. Aware of the nature of his conduct or attendant circumstances ii. Deliberate ignorance (willful blindness) is just as culpable. US v. Jewell (transporting marijuana in his car across the border) 1. Requires D be aware of the high probability of illegal conduct 2. D purposely contrived to avoid learning of the illegal conduct c. Recklessness i. Disregards the risk ii. Do you need just knowledge that it could happen or that is probably will? iii. MPC requires conscious awareness to all 3 factors: 1. There is a risk 2. The risk is substantial 3. The risk is unjustifiable d. Negligence i. Ignorant of the risk that he should know about ii. Different from civil negligence, criminal requires more 1. State v. Hazelwood Exxon Valdez a. There are certain things that will be treated as criminal negligence. iii. Santillanes v. NM uncle cut nephews neck with knife 1. In this case criminal negligence. iv. Less culpable than recklessness because of AWARENESS. 6. Intent a. Common mens rea element i. Specific Intent 1. Intent for conduct or AC or result 2. Crimes with further intent assault with intent to kill, i.e. OR H. Larson White Spring 2012

CRIMINAL LAW OUTLINE 3. Requires the D to have knowledge of some other fact or circumstance ii. General Intent 1. Can be guilty of the general intent crime even if he didnt intent the further action. Awareness of the D need not be proved. b. Regina v. Faulkner sailor burnt down the ship i. Having the intent to commit a specific intent crime does not establish the intent to commit a second crime that is accidental. c. Regina v. Cunningham pulled gas meter out of wall i. He didnt intend neighbor to be poisoned. ii. Malice is not necessarily wickedness. 1. Broader than word would suggest 2. Not reduced to intent or wickedness 3. Could encompass foresight of the consequences. 7. Motive a. Almost never an express element of culpability b. Overlaps with intent or purpose, whichever is required. iii. Mistake of Fact 1. MPC ignorance or mistake is defense if it negative the purpose, knowledge, belief, recklessness or negligence required to establish an element of the crime or the law allows for state of mind defense. 2. AGE as a defense in Statutory Rape a. Usually NO i. Regina v. Prince, took a girl who was 14, thought she was 18, People v. Olsen trailer case ii. Should age of D matter? iii. B v. Director of Public Prosecutions Honest belief is better than reasonable belief. Should consider the Ds intent strongly (15 y.o. boy asked 13 y.o. to give him oral sex) iv. Garnett v. State Retarded man she took advantage of him. Still no defense. v. States interest in protecting children is great than mans interest in having sex with a child. b. 20 states have defense now. i. Mistake must be reasonable. ii. Dont want jury to focus on appearance of the child in trial. c. AK held strict liability in statutory rape to be unconstitutional. 3. Legal wrong argument mistake of fact only about the gravity of the offense will not shield a D from the full consequences of the wrong actually committed. iv. Strict Liability 1. Drugs a. US v. Balint doesnt matter that he didnt know he was selling cocaine, not opium. When you deal with drugs, you do so at your own risk. 2. You can mitigate the risk better than the consumer a. US v. Dotterweich pharmacy labels inaccurate. Supplier needs to check. 3. Morissette v. US junk dealer a. SC said D must be proven to know that the air force had not abandoned them to make it wrongful. Strict Liability wont be taken too far. H. Larson White Spring 2012

CRIMINAL LAW OUTLINE 4. Generally disfavored, specifically in non-regulatory contest and in crimes of traditional flavor. 5. Look at the text of the legislations and legislative intent to determine if they wanted to not require mens rea in the case a. Staples v. US (automatic weapon that wasnt supposed to be automatic) too harsh a punishment to assume Congress meant to ignore mens rea. b. Ambiguity does not equal strict liability. 6. Employers Vicarious Liability a. Courts tend to uphold fines and civil liability, but less likely for criminal. b. State v. Guminga cops a minor order alcohol i. In MN all criminal penalties based on vicarious liability are unconstitutional violates due process. c. State v. Baker speeding, defective cruise control i. He voluntarily drove the car, knowing it had a defect. This is enough intent. 7. Defense: Involuntary Act? a. Regina v. City of Sault Ste Marie Public welfare cases i. 3 types of crimes 1. Absolute liability a. Canada has held unconstitutional 2. Mens rea 3. Absolutely liability where it is not open to the D to show he was free of fault )burden on D to prove) v. Mistake of Law 1. Generally not a defense a. Ignorantia Legis i. Want to encourage people to know the laws. ii. Ignorance isnt a defense Lambert v. CA should know that she has to register as sex offender. 2. Unless, the mistake, in good faith, negates a required element of the crime. a. US v. Albertini circuit court said his protest was legal, while up for cert, did another protest. Even though SC overturned, he acted on his belief of what the law was 3. Think the law doesnt apply a. People v. Marrero gun but he thought he fell under the peace officer exemption i. NY says mistake of law is no defense unless it is founded upon official statement of the law from the statute or from a public servants interpretation of the statute. 1. Those jds that allow official reliance usually dont include policy only administrators, regulators, judicial officers, attorney general employees. 2. States that have these allowances, they get around it by giving a disclaimer saying this cant be used and relied on, or they refuse to give the advice. 4. Mistake must be reasonable a. Cheek v. US Refused to pay taxes 5. Advice of counsel is not a mistake defense H. Larson White Spring 2012

CRIMINAL LAW OUTLINE 6. Where a crime relies on knowledge of another non-criminal law then it can be raised as a defense of mistake of law a. What is relevant is specificity how intricate the other laws are, and how specific they are, the more likely they will be allowed in criminal laws. If there are cross references in the criminal code, then you cannot typically use mistake of law 7. Cultural Defense a. Never a blanket defense, but allows the jury to use aspects of the Ds circumstances to determine if reasonable. b. Women and children usually suffer, but usually just those in the family, who likely have the same cultural beliefs. RAPE I. Overview a. Typical Scenario i. Most rape is acquaintance 1. 50-70% committed by non-strangers 2. Many offenders dont know they are out of line 3. Almost half of women who are victims of forced sex dont call it rape. ii. Tends to occur at night iii. Usually no weapon. iv. Seldom results in murder. v. Usually involves single offender. b. Typical Offender i. Male ii. Same race as victim iii. Single or divorced iv. Older than other typical criminals average age up into the 30s. v. Vast majority who are charged are convicted. vi. Convicted rapists are somewhat less likely to be repeat offenders, but released rapists are somewhat more likely to be arrested again for rape. c. Typical Victim i. Based on gender ii. Poor, young, urban residents iii. Prostitutes most common victims of forcible rape. d. Numbers hard to define i. May be as much at 25% ii. Relatively few get reported, especially in campus setting 1. Often committed by family members, in secret discrete locations e. Punishment i. Death penalty was used up until the 60s. ii. Now, imprisonment combined with registration requirements and other civil effects. f. Special Circumstances i. Not treated like other forms of assault because of the intimate component. ii. Reinforces gender stereotypes iii. Rapist has the power in the moment which gives the rapist a social significance. iv. On par with some crimes that most often lead to more serious injuries. v. Rape is an omnipresent threat to women, especially in vulnerable situations. II. Actus Reus i. The Ds mental state about the victims mental state (consent) H. Larson White Spring 2012

CRIMINAL LAW OUTLINE ii. Elements: 1. Conduct element: some sexual act 2. Lacking Consent: attendant circumstance that is fundamental to the definition of rape. a. Traditional view: i. Verbal Non-Consent means nothing because women may say no and mean yes. ii. Had to show both subjective unwillingness and external actions refusing consent. b. Can you ever interpret a natural progression? i. Consent to petting isnt consent to penetration. c. Is silence implied consent? d. What invalidates consent? i. Age ii. Mental Retardation iii. Intoxication 1. If completely unconscious, or the D unknowingly gave the victim the drugs or alcohol. 2. May be a defense if not. 3. People v. Giardino a. Did the alcohol render the victim unable to make a reasonable judgment as to the nature or harmfulness of the conduct? b. Would the victim have engaged in intercourse with the D had she not been under the influence. iv. Party can withdraw consent at any time. 3. Force a. Could be the threat of force, actual force. i. If victims fear or response to belief of threat is reasonable, force element will be satisfied. ii. Non-physical threat/force? 1. Court may not consider non-physical threats if not covered in the statute. See State v. Alston (ex gf forced to have sex with ex bf, showed no sign of force, so not rape) 2. Economic coercion? a. Refusal to regard as rape. b. Work the other way? Can women use their sexual superiority to gain economic advantages? b. Many jds got rid of force and now say all non-consensual sex is rape. i. Verbal resistance and victim testimony used to show non-consent in absence of force. c. Some see the physical aspect of rape enough to be force (either by statute or case law) i. State in the interest of MTS 1. But does this make the forcible rape cases weaker? Can be solved by adding simple rape grade. ii. MC v. Bulgaria 1. eliminating force element makes physical aspect of rape no different than consensual sex. d. Exception: Race by Deception H. Larson White Spring 2012

CRIMINAL LAW OUTLINE i. Doesnt require force 1. People v. Evans psych experiment not rape because fraud and deceit are not elements of the crime of rape 2. Boro v. Superior Court fake doctor, said she needed sex to be cured. Again, not guilty because fraud isnt part of the statute. a. Distinction between fraud in fact (doesnt know the act is occurring) and fraud in inducement (knows sex is happening but not the correct reason why) 4. Resistance a. Historically required b. One state still requires you resist to the utmost c. Many require earnest or at least reasonable resistance d. Controversy i. Presence of resistance is likely show force or nonconsent. Absence of which doesnt. ii. But, people react differently in the same situations. iii. Also: the law does not expect you to face danger, injury or death to protect your property or yourself (in other circumstance like robbery, kidnapping or assault) e. Resisting rape may actually decrease chance of being raped, not increase chance of being killed or injured i. 80% who fought back avoided being raped, 33% who didnt fight back avoided rape. f. Resisting rape can make woman feel less defeated after, even if unsuccessful. 5. Sometimes a result element such as pregnancy or great bodily injury. 6. Simple Rape a. absence of the force requirement b. lesser grade, less serious, subject to lesser punishment c. this may exclude some cases that should be called some kind of rape 7. Forcible Rape a. Traditionally force not required to be physical i. Many jurisdictions have removed the force requirement. ii. Physical force is sometimes seen as the line between seduction and rape. b. Resistance i. Was required to be physical ii. All states have gotten rid of this element. 8. Aggravated Rape a. Only jurisdiction that still have resistance requirement for aggravated rape is LA III. Mens Rea a. Conduct i. Requires knowledge b. Consent i. D may think the victim consented, thus lacking mens rea (Mistake of fact) 1. Commonwealth v. Sherry 3 doctors, all raped nurse. Arguing mistake because they thought she had consented. Ct says no. 2. Majority Rule a. mistaken consent is a defense if it is a reasonable mistake. b. Negligence standard? H. Larson White Spring 2012

CRIMINAL LAW OUTLINE c. Splits the difference between the D and Victim on who bears the risk when hard to determine what is reasonable. 3. Minority View a. Strict liability for consent i. No mistake defense in relation to consent, even if reasonable. 1. Commonwealth v. Fischer 2 college freshman, previously sexual, but still rape. ii. Puts the risk on the D 4. Alaska rule a. Recklessness the D didnt actually know there was a risk of non-consent b. Puts risk on the victim ii. What is reasonable? 1. Varies by gender, within gender. 2. Juries determine? a. Can usually see the history of sexual activity by the victim, but not the history of sexual assault by the D. c. Statutory Rape i. Strict liability no mens rea can modify. Other Reform Issues a. Getting rid of the gender element? i. Do rape laws make women weaker sex? b. Getting rid of the force element? c. Marriage element? i. Been completely erased. No state recognizes it as a general defense, but some recognize it as a defense in respect to certain aspects. d. Rape reform has virtually no effect on the prosecution and conviction of rapes i. Bias? Empowers police and prosecutors. Allows them to get plea bargains more often. ii. Still social stigma discouraging women from coming forward. iii. Some women dont know who raped them, and get it wrong. iv. Small number are false accusations. v. Conviction rate is still high to push higher would make more innocent people be convicted. YOU CANT FIX EVERYTHING e. Proof i. Corroboration 1. Historically rape couldnt be proven without corroboration (hearsay, witness testimony, physical evidence) a. Justifications: i. Stopping false testimony, women are property to be protected, interracial rape cases, race was decisive of liability b. US v. Wiley i. Rejects corroboration. Says it would mandate SANE kits to charge someone. ii. Problems with Proof 1. Statute of limitations (??) a. Problems with Proof and Memory f. Rape Shield Laws i. Put in place to deny D the chance to raise the victims proper sexual conduct to show consent H. Larson White Spring 2012


CRIMINAL LAW OUTLINE ii. Commonwealth v. Harris court did not allow evidence that women was convicted of prostitution. HOMICIDE I. Introduction and Premeditation a. The only major category of crime in which the majority get reported to the police. b. Not a crime in and of itself, but a category of crime consisting of murder and manslaughter. c. Typical structure: i. Killing on the AR side ii. Combined with MR 1. Malice OR 2. Modern Ideas a. Knowledge b. Purpose c. Intent II. Murder vs. Manslaughter a. Murder i. 63% clearance rate by the cops 1. Police arent trained well enough to solve every murder 2. Dont have a strong interest in helping those who dont have a high social status. ii. Focused on the idea of malice aforethought and preconsideration of the act you commit. iii. Definition has changed over time to include things that people think need to be punishable, but arent exactly premeditated iv. Includes: 1. killing with intent to do so, without provocations, although no premeditation 2. killing with intent to kill another 3. killing by an act intended to kill, although not a particular person intended 4. intending to harm, but not kill, killing anyway 5. killing with reckless indifference. v. Premeditation: 1. Doesnt have to be months or weeks, can be moments (Commonwealth v. Carroll) 2. Must be a time period between the formation of the intent to kill and the actual killing to show prior calculation (State v. Guthrie) b. Manslaughter III. Provocation a. Reasonableness i. Frailties of the mind dont matter 1. Girouard v. State woman taunting husband. Despite his psychological problems, his action was NOT reasonable ii. Up to jury to decide reasonableness. 1. Uses objective standard 2. Tends to be decided on case by case basis. b. Provocation must be adequate & not in a prohibited category i. Words arent usually enough ii. Assault on the d that isnt self defense? iii. 3rd party assault? iv. Infidelity? 1. Often D is required to actually walk in on them. 2. Problem: a. affirms old notion of property H. Larson White Spring 2012

CRIMINAL LAW OUTLINE b. Encourages violence in a context where it is most in need of discouragement c. Until 70s this was a complete defense in some states. v. Homosexual advance 1. Formal Law in the past a. Complete defense and not even a partial provocation defense. 2. Custom currently c. Cooling off period i. If too much time is elapsed, defense not allowed. 1. Exception provocation could be rekindled, i.e. by taunting, but hard to say so after years have passed. 2. US v. Bordeaux mom raped by victim 20 years ago, found out, hours later killed victim. Court said he did not act in the heat of passion. d. Issues: i. What about if the D started it? ii. What if someone else was the provocateur not the victim? iii. Mutual combat? Both have the chance to leave and do not. e. Types of Defense i. Justification Defense 1. Morally, fundamentally correct (self-defense) a. There is a distinction between self-defense and provocation 2. Provocation as partial justification a. Easier to allow the killing because the victim was wrong too i. It is OK to punish wrongdoers, even if you dont believe they fully deserve to die, you may believe they partially deserve to die ii. Excuse Defense 1. D was wrong, but understandable (insanity) 2. Provocation as partial excuse: a. Reasonable person would never kill, even with provocation. b. May need to estimate by the probability that one would be driven to kill in similar situations. iii. Complete Defense? 1. If provocation were a complete defense, we encourage Ds to come up with anything, and send the message that it is ok to kill anytime someone provokes you. iv. MPC Approach 1. Substitutes the concept of extreme mental or emotional disturbance for the traditional provocation disturbance. a. Must be a reasonable explanation for the extreme emotional disturbance AND b. A specific qualification that reasonableness means a reasonable person in the position that the D was in, given his understanding of the circumstances (object concept of reasonableness.) c. See People v. Casassa turned down by woman killed her i. Extreme emotional disturbance is broader than provocation, looks at the subjective to understand the Ds situation. Found that the D was extremely emotionally disturbed but his actions were still not reasonable, given the circumstances. Unintended Killings H. Larson White Spring 2012


CRIMINAL LAW OUTLINE a. CRIMINAL Negligence i. Commonwealth v. Welansky night club case 1. He was negligent to the dangers he was presenting 2. Court imposed an affirmative duty on D ii. Contributory Negligence is not a defense in criminal cases. iii. MPC creates manslaughter and negligent homicide distinguished by whether the D was aware of the risk he was creating. iv. State v. Williams parents guilty of murder when infant dies from lack of medical care. b. Recklessness i. People v. Hall skier at Vail (IS THIS THE CORRECT HOLDING)? 1. Recklessness requires that he need to show more than that he was aware he was skiing and aware that skiing can be dangerous. He needed to know that he was skiing outside of his abilities and though he did not present and unjustified risk to anyone. 2. Here, D has a general awareness of the risk of skiing, but it seems like he consciously disregarded that risk he was creating ii. Dont need to prove intent, just recklessness 1. Commonwealth v. Malone Russian Poker a. Act was intentionally done in disregard for its consequences. It is enough to be murder 2. US v. Fleming drunk driving on the wrong side of the road a. Doesnt matter that he didnt have the intent to kill c. Intentional creation of the risk of great bodily harm i. Usually not a defense, you inflict injury at your peril Felony Murder a. Distinctly American i. Many jurisdictions have limited it for certain crimes. 1. The predicate felony must be inherently dangerous look at specific facts a. People v. Phillips cannot be charged with felony murder for grand theft eye doctor case b. People v. Stewart mom on crack binge just because she subject her kid to being a sufferer, doesnt make it felony murder c. Hines v. State guy who illegally had gun is liable for felony murder when accidentally shooting a friend while hunting because his action in having a gun is inherently dangerous. b. Murder has to be committed while you are committing the felony. c. Must be tried for the underlying felony and felony murder at the same time. d. Can be Group Liability e. Idea: if you commit a felony, and a felony causes the death, you can prove murder (Regina v. Serne killed boy when set a house on fire) f. Take your victims as they come i. People v Stamp Stamp charged with felony murder when guy had heart attack during a robbery ii. This is not majority rule iii. Most jurisdictions require CAUSATION (including proximate cause with foreseeability) g. D must be shown guilty (not necessarily convicted) of the predicate crime. h. Justifications: i. You assume the risk when you commit a felony H. Larson White Spring 2012


CRIMINAL LAW OUTLINE ii. You have the mens rea of the predicate felony, so you can get the mens rea for the murder from that iii. The unique harm is death. 1. With more serious harms, there is a greater justification. i. Merger i. Cannot convict a D for assault with a deadly weapon and felony murder because they merge into one another 1. People v. Burton bank robber case ii. Trend away from applying the merger analysis j. Killings not in furtherance of the felony i. Still liable of the actions of others even if 1. In frustration of the felony. 2. After the felony has ended 3. Killing by non-felons a. Shield Cases cops shoot each other, criminal is liable for felony murder of both. b. Is foreseeability the proper determinate of culpability? ii. Can be seen as taking on the risk just by committing the felony. iii. WHAT ARE THE THEORIES OF CULPABILITY Agency vs. other (kill the owner or let the cofelon die doesnt matter which one because you can be charged with felony murder either way) Death Penalty a. Facts i. 5 states make up 2/3 of executions ii. TX 1/3 of total iii. 12 states and DC dont allow it at all iv. CA has only executed 13 people since 1976 but has a huge death row population v. Use is declining around the world 1. US is on par with some human rights conflicted countries b. Cases i. Two trials in one 1. Guilt phase 2. Sentencing phase ii. Prosecution must notify the D that they are seeking the DP c. Justifications i. Deterrence 1. Death could be better than life in prison 2. Hard to predict if you will actually get the death penalty, so hard to see as a deterrence. a. Random as to how it is imposed i. 50 people per year get sent to death row. 3. Supports violence to punish violence ii. Retributivism 1. Eye for an eye 2. But we dont do this for any other type of crime. 3. Not usually seen as mandatory, but dependent on level of culpability 4. Some people argue that the death should actually be more cruel d. Sanctity of Human Life i. Used by supporters and non-supporters. H. Larson White Spring 2012


CRIMINAL LAW OUTLINE ii. Execution is a vindication of the first murder iii. But also, sanctity of human life demands that another human life should not be taken. iv. LWOP has been legitimized in part by anti death penalty forces. But some think it is torture. e. Constitutional Limits i. Procedural Due Process 1. Should have a clear, unguided discretion in making these decisions, as jurors. 2. This didnt take off, so now use cruel and unusual punishment. ii. Cruel and Unusual Punishment 1. Furman v. Georgia found the due process clause inconsistent with the 8th amendment. All people on death row in the US were given life in prison instead. Most released on parole later. 2. States response a. Many got rid of it completely 3. Gregg v. Georgia reestablished the death penalty a. Punishment cannot be excessive: i. Not involve the unnecessary and wanton infliction of pain AND ii. Not grossly disproportionate with the severity of the crime. 4. Courts have rejected: a. Mandatory death penalty i. Must look at 2 considerations: 1. Is there an aggravating factor in the facts of the case and delineated statutorily 2. Defense must have an opportunity to demonstrate the presence of a mitigating factor. a. If the state doesnt prove beyond a reasonable doubt that there is an aggravating factor, the DP cannot be invoked. b. Even if it does prove an aggravating factor, the defense can offer to the jury the mitigating factor. c. Even if there isnt a mitigating factor, the jury can choose not to use it. d. Mitigating factors in CO: i. Murder of a govt officer (cop, judge, elected official) ii. Incidental to kidnapping iii. Defendant incarcerated at the time iv. D previously committed a certain felony (esp. homicide) v. Used an explosive or incendiary device in committing the murder vi. Incidental to a felony (not felony murder) vii. Murder of child under 12 viii. Murder involved race/religion etc. reasons ix. Some include murder of senior citizen x. Committed in escape or flight xi. Murder for pecuniary gain get inheritance

H. Larson White Spring 2012

CRIMINAL LAW OUTLINE xii. Murder done in especially heinous, cruel or depraved manor the wild card, most commonly pleaded. b. Mentally retarded persons i. Atkins v. Virginia c. Juveniles i. Roper v. Simmons unconstitutional to give someone the death penalty who was a minor when they committed the crime. ii. Kids not fully aware of what the crime could result in f. Problems i. Error 1. Innocent people on death row ii. Bias 1. Racial and economic inequality on death row. 2. Class is biggest bias a. Inability to hire an effectively lawyer plays a big part 3. McCleskey v. Kemp study showing disparate treatments of blacks a. Court affirms because there is no proof these issues occurred in this case. b. You have to show individual discrimination. iii. What if you dont die? 1. Kid was electrocuted, but didnt die. SC stayed his execution twice and finally agreed to let him get executed again. iv. No good way to kill people 1. Always messy/ghastly SIGNIFICANCE OF THE RESULTING HARM I. Causation a. Problem is in establishing a link between action and result i. Unique to crimes that feature a result element. ii. Causation is not an independent element of a crime the most you will ever find (not always) is a separate section of the criminal code saying this is what causation means. iii. Jury usually gets chance to decide causation b. Foreseeability i. People v. Acosta Helicopters crashed during a chase Court said this wasnt highly extraordinary. ii. People v. Arzon 2 fires, unrelated. Arzon held liable for the death of a firefighter caused by the fire he did not start. Even though this is an obscure connection, it is sufficient direct connection between the action and the outcome or harm. iii. People v. Warner-Lambert fire at gum factory foreseeable because there were dangerous chemicals being used. Seems like foreseeability is analogized with probability. iv. Med Mal foreseeable? v. Transferred intent? 1. Not that controversial because of the quotient of moral culpability vi. Remember no duty to aid, so you dont cause a death by not helping another. c. Subsequent Human Action i. People v. Campbell encouraged man to kill himself but not guilty 1. Hope is not a degree of intention ii. People v. Kevorkian not guilty because he did not do the final injection H. Larson White Spring 2012

CRIMINAL LAW OUTLINE 1. So long as the person committed suicide voluntarily, the encourager or helper cannot be guilty of murder. 2. MPC has a penalty for assisted suicide though same as manslaughter Stephenson v. State KKK Kidnapper 1. Guilty because he put her in the situation to want to kill herself Bailey v. Commonwealth Murdoch blind, shoots a cop, thinking it was Bailey 1. Bailey guilty because the intervening acts from police were reasonable. Drag Racing Cases 1. Commonwealth v. Root one of the drag racers died, Root is not liable 2. State v. McFadden one drag racer dies and kills a child in another car. McFadden liable for childs death. a. Kind of a contributory negligence issue People v. Kern 1. White defendants chasing and threatening black guys, one ran into the road to escape and died. White boys guilty of 2nd degree manslaughter. Commonwealth v. Atencio 1. Ds are convicted of manslaughter for playing a game of Russian roulette 2. Does free-will of the victim play a part? a. Giving an addict alcohol or drugs?

iii. iv. v.




Attempt a. Inchoate crime doesnt have to be completed for there to be criminal liability. b. Can be a failure, or an interruption c. Justification i. You put somebody in danger. d. Punishment? i. The maximum? Half Sentence? ii. Serves to deter behavior. e. Mens Rea i. Same as the mens rea required for the completed crime. ii. Specific Intent 1. Requires that someone has a desire to bring about the result but the actual result isnt required. The result itself is also a crime. 2. Smallwood v. State HIV Rapist a. Intent was to rape, not to murder 3. Required in almost all jurisdictions for attempt charges 4. CO can have attempted reckless manslaughter does this get rid of specific intent completely? 5. Does specific intent extend to attendant circumstances? iii. General Intent 1. The mens rea required with respect to the conduct. 2. It is not the specific intent mens rea element that goes to bringing about the result of the crime. iv. Parity Approach (as opposed to specific intent) 1. The same mens rea is required for both the Conduct and Result - that mens rea is generally the mens rea required for the completed crime 2. Specific intent requires more and can be confusing for juries, parity approach is easier. f. What is allowed? i. Attempted felony murder is usually not allowed. H. Larson White Spring 2012

CRIMINAL LAW OUTLINE ii. Can be attempted voluntary manslaughter iii. not attempted involuntary manslaughter. g. Actus Reus i. Conduct 1. MPC requires high probability of success to be charge. ii. Impossibility 1. Most jurisdictions wont hold you liable, despite your intent if the crime is manifestly impossible (trying to get meteorite to hit your enemy) h. Preparation vs. Attempt i. Blurry line 1. First acts of preparation are not enough BUT 2. The final step doesnt necessarily have to happen 3. People v. Rizzo Got caught trying to rob someone before they even got close. Court said act must come very near to the accomplishment of the intended crime. 4. State v. Jackson trying to rob a bank, tipped off and stopped but still convicted because the men were clearly dedicated to completing the crime and would have if they hadnt been stopped. ii. Needs some mens rea, for preparation. But unclear how much. 1. Dont want to require anything more than what would be required of the completed crime. Different from result. iii. Dangerous Proximity Test 1. How close do you actually get to committing the crime? a. McQuirter v. State black man following white woman, and Rizzo b. Is this the same as the last act test? iv. Equivocality Test 1. Res ipsa style 2. Conduct speaks for itself v. Substantial step test 1. MPC 2. Must be corroborative of attempt to complete the underlying crime. 3. Similar to equivocality test. vi. Abandonment defense? 1. Makes sense to allow those who choose not to commit the crime not be charged. 2. NEED TO KNOW FEATURES AND JUSTIFICATIONS OF THE 3 TESTS vii. Crimes with strong preparation element 1. Assault a. criminal law doesnt focus on distinction between assault and battery in many states assault is often linked with battery. But, in the states that do separate assault operates like the attempt element for battery. 2. Burglary a. can be prosecuted as a crime of preparation or attempt having burglary tools? Made it a lot like breaking and entering 3. stalking a. required: intent or knowledge that you are harassing someone and usually some sort of threat element. i. Solicitation i. Not as severe as attempted murder, so they often try to go to murder. ii. State v. Davis Trying to kill lovers husband Court said employing someone to do the job is not attempting to kill the person. It is unaccompanied by the adequate attempt. H. Larson White Spring 2012

CRIMINAL LAW OUTLINE iii. What is far enough? 1. US v. Church tried to get a hit man, went to meet him, discuss details etc. 2. Took a substantial step to the commission of the crime. j. Impossibility i. Legal impossibility 1. If it wouldnt have been a crime had it been actuated, cannot be the crime of attempt. a. People v. Jaffe not really stolen cloth b. Opposite: People v. Dlugash shot man thinking he was dead still guilty of attempt. ii. Factual impossibility 1. i.e. if you think you can kill someone but the gun isnt loaded, you still have the attempt 2. Pure factual impossibility is never a defense. 3. Mere failure, flaw in Ds plan, D chooses the wrong victim, didnt have a good plan 4. Inherent factual impossibility a. i.e. taking a meteor out of the sky. Not rejected by the courts. b. Borderline cases not inherently impossible but SO unlikely i. Shooting someone 4 miles away 5. US v. Berrigan priest smuggling mail into prison, thought the warden didnt know. Really the warden didnt care. a. Court said factual impossibility occurs when extraneous circumstances unknown to the actor of beyond his control prevent consummation of the intended crime. iii. Hybrid legal impossibility 1. D tries to commit a crime. There is a law he is trying to break, but because of a factual mistake, the crime is not committed. a. i.e. trying to commit a burglary but you are breaking in to a warehouse and not a dwelling. 2. Virtually never a defense. GROUP CULPABILITY I. Complicity a. Felony Murder, Conspiracy, Complicity are the three most common forms of group liability. b. Conspiracy/Complicity in its nature a form of group liability, impossible to comply or conspire with oneself c. Note: Unintentionally aiding a criminal isnt a crime picking up a hitch hiker that turns out to be a murderer. d. Types of Accessories i. Accessory before the fact 1. provided counsel or commanded the crime to be completed a. did this before the crime was done, not present at the crime. ii. Accessory at the fact 1. present at the time of crime iii. Principle in the 1st degree 1. actual perpetrator iv. 2nd degree principle 1. present, aiding or abetting the crime v. These distinctions dont matter anymore H. Larson White Spring 2012

CRIMINAL LAW OUTLINE 1. all these people are accessories 2. The only thing that remains an independent crime and has kept its distinction ins accessory after the fact some mens rea intent to help others evade authorities. e. Modern definition of accessory liability i. Requires assistance on part of D AND ii. Intent to aid. f. Mens rea i. Due to group crime nature plural mens rea. ii. Mens rea of accomplice: 1. must rise to level of specific intent a. Facilitation Crimes i. Replaces the requirement of specific intent with knowledge ii. A lot easier to convict on facilitation. iii. Must have the intent that what you do is aiding a crime, and that aid is helping complete the crime. Knowledge that what you are a doing is a benefit to the principle, you know you are giving them aid in completing the crime. iv. Examples 1. Juvenile gun possession: a. Columbine even though Manes didnt know the boys would kill these people, he still was guilty of supplying guns to minors 6 years prison. 2. Material support to terrorism a. Contribution of the actor must be material 3. Money laundering a. All that need be proved is that the D knew the money came from some sort of illegal activity. 2. Hicks v. US - Ct says when an accomplice is there for the purpose of aiding and abetting, but doesnt have to because it is unnecessary he is liable just as if he had actually aided and abetted. But Hicks doesnt show specific intent to encourage just by saying the words he did. 3. State v. Gladstone Gladstone gave a cop Kents name to sell marijuana. But Gladstone not convicted of aiding and abetting because he was indifferent to whether or not the sale happened. 4. MPC now requires accomplice to have the purpose of promoting or facilitating the commission of the crime. Thus purpose is required of lesser offenses, but merely knowledge of the major crimes. 5. Exceptions from the intent requirement a. Foreseeability i. Objective foreseeability is this the majority rule? ii. People v. Luparello because he armed his friends with guns, death was a foreseeable consequence. b. Roy v. US accessory is liable for any act which was a natural and probably consequence of the crime that he played a part in, even if he has no intent. But the court held Roy not liable? Confused on this. 6. Pinkerton doctrine a. D who is guilty of conspiracy to commit one offense may be convicted of other offenses that his coconspirators commit in furtherance of the H. Larson White Spring 2012

CRIMINAL LAW OUTLINE conspiracy if they are reasonably foreseeable consequences of the conspiracy agreement. 7. Purpose a. People v. Russell school principal killed in gun fire accidentally. Court says all people intentionally aided the D by entering the fight. b. MPC requires purpose as to the commission of the offense. But ambiguous as to AC. iii. Mens rea of principal 1. Must have the mens rea required to commit the crime not necessarily specific intent. 2. In accomplice liability the principle has to be guilty of the crime, not necessarily convicted though. iv. Mens rea of attendant circumstances 1. So can we impose the same culpability on the accomplice as the actor (strict liability?) 2. State v. McVay boiler blew up on a ship. No specific intent but he is still liable. The boat captain is at fault for the negligence of his principles because he directed and counseled those people. g. Actus Reus i. Encouragement? 1. Willcox v. Jeffrey sax player/magazine. Court said it was enough for him to buy a ticket to show that he was encouraging the illegal activity. Outlier case. ii. Omission/Failure to Act? 1. State ex rel Attorney General v. Judge Tally by telling someone to not send the telegram warning Ross, Tally deprived Ross of the one chance at life he had. Doesnt matter that it is likely not a but for cause. 2. Can be adequate mens rea a. Father watching son rape another for example b. But MPC says you need a duty or the statute needs to specifically allow for it. h. Liability of the Parties i. Innocent Agent Doctrine other parties can still be guilty even if the agent cannot 1. Not limited to law enforcement and people setting others up. a. You can be an innocent agent as a dupe doesnt know what you are up to. b. Also, incompetent principle. 2. Problem: a. Liability is derivative, so principal has to be criminally liable. But if the principal isnt criminal, how can you be liable? i. The courts say it doesnt matter. ii. The result element is imputed so long as the result still happens, that is what you are imputing, not the mens rea of the other person (since they have none) you cant have a purpose in common with someone who has no criminal purpose at all. Can be justified on moral or instrumental grounds analogize it to the incompetent agent problem it is like it. 3. State v. Hayes because Hill was a relative of the store owners, and not culpable, Hayes can only be guilty of taking the bacon Confused on this case. ii. Unconvictable agent H. Larson White Spring 2012

CRIMINAL LAW OUTLINE 1. not just police, but what if the agent cant be found, is dead, not guilty on a technicality. (jd, stat of lim etc.). a. Vaden v. State element of fairness. Ds conviction depended on actions of police officer shooting foxes. But, in Vaden, an actual element of the crime was committed, by flying the cop out to hunt illegally. 2. should there be parity in the defenses? a. Statutory rape case does the a/a have the defenses the principal has or the defenses he would have if he were the principal? iii. Entrapment 1. Most jurisdictions have a subjective test a. Do you have a subjective predisposition to do what you were entrapped to do? b. You almost never win because the fact that you have done it almost undermines the idea that you dont have a predisposition to do it. Corporate Liability a. Liability of Entities i. Premised on the actions of its agents ii. Historically 1. Corporations not held liable for crimes at all a. Corporation wasnt capable of the scienter to commit a crime because it wasnt a person. b. Couldnt be punished the same way crimes were punished imprisonment, death c. Corporations had so much power that they could make it so they were liable. iii. Now 1. Corporations held liable for crimes, even when there is a mens rea element. a. Derivative responsibility so long as management personnel are also culpable 2. Corporations seen as legal persons. a. Same constitutional rights, same criminal liability. i. NY Central and Hudson River RR v. US rates on common carriers, vouchers this is an example of a crime that companies can be held liable for. 1. Very few crimes that corporations cannot be held liable for anymore. 2. Some under intent and statutory construction that limit liability (murder statute has human element of the D) a. Some courts have ignore this and broadly interpreted the statute. b. Possibly partnerships as well. iv. Respondeat Superior 1. Must be: a. Committed by agent of the corporation b. Within scope of employment c. Intent to benefit company d. OR if the supervisor supported the act ratification 2. Some think it is too strict, too similar to vicarious liability. 3. Doesnt matter if agent was acting in opposition of managers direction. H. Larson White Spring 2012


CRIMINAL LAW OUTLINE a. US v. Hilton Hotels boycott in Portland i. Otherwise, would allow willful blindness b. Commonwealth v. Beneficial Finance Co. i. Criminal acts arent usually made after a vote in a meeting. ii. Lower level, non-managerial employees sometimes have a lot of freedom and decision making power. So long as the corporation put them in a position to make decisions, it is liable for his decisions. v. Types of sanctions: 1. Fines, Probation Periods 2. Fines must be stronger than the expected benefits but also some employees dont feel the strain of fines, so this doesnt deter them. vi. Corporate Compliance Programs as a defense? vii. Omission viii. Problems 1. Difficult to ID the culpable entity b. Liability of Agents i. To what degree does their liability flow from the actions of the entity? 1. Agent gets no defense by being an agent of a corporation. 2. But criminality of the corporation doesnt run to the agent automatically. a. Usually accountability is required to show culpability, more than just the relationship, itself. b. Gordon v. US Even though partners said they didnt know illegal credit sales were being made, they were required to keep documents, so they should have known. Knowledge of general info is enough. SC reversed this decision. c. US v. Park President was found to have enough knowledge that warehouses were not sanitary to be held liable. Didnt base the decision solely on his position, but on his knowledge. d. US v. MacDonald and Watson Waste Oil Co Ct said that if there was no proof he actually knew that the facility did not have a hazardous waste permit, he couldnt be held liable to know just because he was a responsible officer. ii. impossibility defense saying it was impossible to correct the violation or prevent it. a. only available to individuals, not corporations. Conspiracy a. Must be an agreement, to commit an act the object of which is a the proper object of conspiracy liability. b. Easier to prove than attempt (on both AR and MR) i. can actually be charged with both attempt and conspiracy but can be an alternative. c. Conspiracy is a partnership in criminal purposes. Aimed at special danger i. Justification 1. it is easier for a group of people to evade the law by covering each other up, and it magnifies the harm there is a greater threat when more people are involved. ii. Aimed at communication between people iii. Necessarily a group crime. iv. Has to be a relationship between conspiracy charge and object crime d. Historical i. American courts almost exclusively H. Larson White Spring 2012


CRIMINAL LAW OUTLINE ii. The object didnt have to be a crime closely linked with labor law iii. latent with politics communists, etc. 1. now, mostly drug traffickers, mobsters, organized crime, terrorism. May still be treated unfairly for reasons that are political and hard to justify. Inchoate crime i. punishable whether or not is occurs. Doesnt merge into the completed offense. i. Punishable in addition to the offense. ii. But when object crime is misdemeanor, the conspiracy cannot be more than a misdemeanor. Intent i. Sometimes seen as specific intent crime 1. Added intent in doing that act to bring about the completion of the crime is specific intent. a. Specific Intent adds nothing that isnt settled by the agreement requirement. ii. Redundancy of mens rea and actus reus. 1. Dont confuse analysis of MR with the AR intent requirement of the agreement. iii. Actus Reus 1. Some jurisdictions (MPC and CO) require overt act a. Not same as substantial step b. Not required at common law. iv. The agreement can be tacit, doesnt have to be express or formal. 1. Dont even have to know who the person is agreeing with you. 2. A nod can denote an agreement. v. Agreement can favor in the wheel and spoke or chain of the crime 1. Not all people have to have a universal agreement. Punishment i. Equal to the punishment for the crime itself? 1. But, they can both be imposed consecutively. ii. Fraction of the completed crime? iii. In some ways, conspiracy is part of the crime any time you have a group doing it together. But people reject this by saying the elements of the crimes are sufficiently different. Continuing offense (Easy to get into, hard to get out of) i. Once formed, remains in effect until objectives have been met or abandoned 1. Abandoned when NONE of the conspirators are still engaging in action to further the objectives. ii. Statute of limitations starts to run when conspiracy ends. 1. Wont assume covering up the crime is part of the conspiracy unless actual proof of that. iii. Impossibility? Cops intervene 1. If people are unaware that cops have intervened, the conspiracy is still a threat iv. Getting Out? 1. If a D takes action to tell everyone else he quits, the statute of limitations may start running against him. 2. Some jurisdictions require D to take action to thwart the activity (usually go to cops) v. Renunciation? H. Larson White Spring 2012

e. f.




CRIMINAL LAW OUTLINE 1. barely a defense (different from abandonment because you have already done it) j. Concerns i. hard to determine civil and criminal differences ii. are you getting a fair trial? iii. If no specific intent, AR is simply to agree. iv. Spillover effect v. Jurisdiction/Venue can be tried any place that a portion of the conspiracy happened allow prosecutor to cherry pick the least convenient location for D


. Malum in se traditional crimes that are crimes in and of themselves Malum prohibitum crimes that have been dictated as such

H. Larson White Spring 2012