Criminal Law

Front 1

General Overview - Into what four categories are criminal law topics generally divided?

Back 1

(1) General Principles governing criminal liability (6)
(2) Definitions/Elements of Crimes under the common law and MS Statutes (13)
(3) Defenses (8)
(4) Punishment Provisions and Considerations (Constitutional and Statutory)

Front 2

General Principle #1 - The state must prove what and standard?

Back 2

The state must prove all ELEMENTS of a crime beyond a reasonable doubt.

Two Exceptions
(1) Affirmative Defenses (mostly shifted to defendant)
or
(2) Jurisdictional facts to establish venue (preponderance of evidence)

Front 3

General Principle #2 - Before criminal liability can attach, there must be . . .

Back 3

an unlawful ACT by the defendant.

The act must be VOLUNTARY (of defendant's own volition).

Three possible fact scenarios where this is tested:
(1) D is physically forced into the unlawful act - not voluntary.
(2) Act is the result of a seizure (epileptic) - not voluntary.
(3) Act occurs while defendant is unconscious - not voluntary.

NOTE - Duress is defense but still voluntary act.

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Act Part Two - Failure to Act - Legal Duty to Act

Back 4

Failure to Act -
In addition, doing NOTHING can constitute an unlawful act, i.e., an omission.

Requires three things:
(a) Statute that prohibits causing a particular result.
(b) Facts establishing that defendant, by doing nothing, substantially contributes to the result (CAUSATION).
(c) A legal duty to act.

Front 5

When is their a legal duty to act?

Back 5

Four situations:

(1) A contract obligates the person to take action.

(2) Close relationship

(3) An undertaking (start to help and then stop - person worse off)

(4) Statute requires action.

Conclude outside of these situations that otherwise there is no duty to act, no matter how bad person is. NO criminal liability.

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General Principle #3 - Mental State

Back 6

Most crimes requires an unlawful mental state (or mens rea - guilty mind).

To determine the applicable mental state for a crime:

(1) Read Statute, or

(2) If common law crime, determine whether the crime is (four)
(a) specific intent crime;
(b) malice crime;
(c) general intent crime; or
(d) strict liability crime (no mental state)

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Specific Intent Crimes (common law)

Back 7

For a specific intent crime, the actor must have intended to do the ACT or "cause the harm prohibited by the statute."

List of common law specific intent crimes (8):
(1) Larceny
(2) Embezzlement
(3) Burglary
(4) Robbery
(5) Most Assaults
(6) All Attempts
(7) All Conspiracies
(8) Any charge based on accomplice liability

Defenses of (1) voluntary intoxication and (2) unreasonable mistake of fact are available with specific intent crimes.

Front 8

Malice Crimes (common law)

Back 8

Malice requires a showing of either intent or a depraved heart (super recklessness).

List of common law malice crimes (two):
(1) Murder
(2) Arson

Defenses of (1) VI and (2) Unreasonable MOF are NOT available.

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General Intent Crimes

Back 9

General Intent requires a showing of recklessness - actor does NOT have intend act or result.

List of common law general intent crimes (3):
(1) Rape
(2) Battery
(3) Manslaughter

Note - general intent/recklessness is default.

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Strict Liability

Back 10

NO intent required.

No SL crimes at common law.

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Mississippi Mental State Requirements

Back 11

Generally continues to follow common law except as noted statutory definitions of particular crimes.

Intent or Malice may be proved from circumstances surrounding the crime (inferred).

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Causation

Back 12

Some crimes require the bringing about of a particular result. To establish criminal liability for those crimes, the state must also prove that the defendant's act CAUSED the particular result.

State must prove two things (generally tested with homicide): That the defendant's act was
(1) the cause in fact (actual cause) AND
(2) the criminal proximate cause of the result.

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Cause In Fact (actual cause)

Back 13

Courts apply a "but for" test to determine cause in fact.

Front 14

Criminal Proximate Cause (legal cause)

Back 14

Foreseeability Test - An act is the criminal proximate cause of all the natural and probable consequences of the act.
- Where result is TOO REMOTE it is beyond reasonable realm or
- After D acts there is an unforeseeable intervening event
then not proximate cause.

NOTE - D's act does not have to be only (SOLE) cause - just has to be substantial cause or hastens result (even in mercy).

Front 15

Accomplice Liability

Back 15

A person is guilty of accomplice liability if the person:

(1) Helps or Aids another person to commit the crime, with

(2) the INTENT to see the crime be committed (words of encouragement enough).

Exception - No criminal liability if the alleged accomplice is a member of the CLASS of people the statute is designed to PROTECT (think statutory rape).

In MS, generally the same principles apply to accomplice liability. See Miss. Code Ann. 97-1-3.
--- However, one who assists in crime AFTER its commission is guilty of being an ACCESSORY AFTER THE FACT. (lesser, independent crime)

Front 16

Criminal Statute Unconstitutionally Vague for Voidness

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A criminal staute must give fair warning to all persons about the conduct that is prohibited by the statute.

Test: Would a person of ordinary intelligence have to guess at the meaning of the statute? If yes, void for vagueness/struck down. High hurdle.

MS Test - Would a person of ordinary intelligence have a "reasonable opportunity" to know what conduct is prohibited?

Front 17

Crimes (13)

Back 17

Homicide
(1) Murder
(2) Manslaughter

(3) Battery
(4) Assault
(5) False Imprisonment/Kidnapping
(6) Rape
Larceny, Embezzlement, False Pretenses

Front 18

Homicide

Back 18

(1)Common Law Murder
(2) Statutory Degrees of Murder
(3) Manslaughter
(4) MS Distinctions

Front 19

Common Law Murder

Back 19

Definition - Unlawful killing of another human being with malice aforethought

Mental State - 4 ways:
(1) Intent to kill
(2) Intent to inflict serious bodily injury (and a death results)
(3) Awareness of extreme risk to human life (and ignore risk - i.e., super recklessness)
(4) Felony Murder - death of another during course of or in flight from the commission of a felony (generally the dangerous common law BARRK felonies)

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General Statutory Degrees of Murder

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First Degree
Second Degree

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First Degree Murder

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(1) All killings that take place with premeditation and deliberation (can be found in an instant - "pause")

(2) Killings occurring during the commission of certain dangerous felonies

First Degree Murder is specific intent crime so defenses of voluntary intoxication and unreasonable mistake of fact are available.

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Second Degree Murder

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(1) Person intends to inflict serious bodily harm and death results;

(2) Person acts with a depraved, wicked mental state and death results. (Super Recklessness - Depraved Heart)

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Manslaughter

Back 23

Definition - unlawful killing of another human being without malice aforethought. [all other unexcused killings]

Three types at common law:
(1) Voluntary Manslaughter
(2) Involuntary Manslaughter
(3) Misdemeanor Manslaughter

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Voluntary Manslaughter

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Killing that takes place during the heat of passion after sufficient provocation.

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Involuntary Manslaughter

Back 25

Reckless killing of another (less than super recklessness, greater than negligence)

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Misdemeanor Manslaughter

Back 26

Killing that takes place during the commission or flight form commission of a misdemeanor.

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Mississippi Homicide

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(1) Non-Capital Murder
(2) Capital Murder
(3) Excusable Homicide

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MS - Non Capital Murder

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Killing of human being without authority of law
(a) done with deliberate design to cause death of a person;
(b) done during commission of imminently dangerous act evincing a depraved heart; or
(c) done during commission of, or attempt to commit, felony OTHER THAN rape, kidnapping, burglary, arson, robbery, sexual battery, child rape, or felonious abuse/battery of a child.

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MS - Capital Murder

Back 29

Can carry Death Penalty Sentence

Killing of human being without authority of law
(a) when victim is peace officer or fireman acting in official capacity and defendant knows status of victim;

(b) perpetuated by person under sentence of life imprisonment; or

(c) Done during commission of, or attempt to commit, rape, burglary, kidnapping, arson, robbery, sexual battery, child rape, or felonious abuse/battery of a child.

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MS - Excusable Homicide (include discussion of Weathersby Rule)

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Killing of another human being:
(a) when committed by accident and misforture while doing a lawful act (such as pure traffic accident);

(b) when committed by accident and misfortune in the heat of passion with sudden and sufficient provocation; or

(c) when committed upon sudden combat without taking undue advantage, using a dangerous weapon, or done in a cruel and unusual manner.

WEATHERSBY RULE - If defendant and eyewitnesses give reasonable account of killing that is not substantially contradicted by credible witnesses, physical evidence, defendants' conduct after killing, or commonly known fact, the court is REQUIRED to enter judgment of acquittal (does not go to a jury.

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MS - Manslaughter

Back 31

(a) Killing of a human being without malice by the act of another during commission of or attempt to commit felony OTHER THAN rape, kidnapping, burglary, arson, robbery, sexual battery, child rape, or felony abuse/battery of child.

(b) Killing of human being without malice during commission or attempt to commit a misdemeanor;

(c) Killing of another human being without malice in the heat of passion in a cruel manner or with a dangerous weapon (not by accident, not murder)

(d) All unlawful killings not covered by statute.

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Common Law Battery (general intent - reckless)

Back 32

Unlawful application of force to the person of another resulting in either bodily injury or offensive contact.

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Common Law Assault

Back 33

(1) An attempted battery (specific intent); or

(2) Placing another person in reasonable apprehension of bodily harm (fear).

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MS Assault

Back 34

In MS, both assault and battery are called ASSAULT.

(1) Simple Assault
(2) Simple Domestic Assault
(3) Aggravated Assault
(4) Aggravated Domestic Assault

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MS - Simple Assault

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(1) Person attempts to or purposefully, knowingly, or recklessly causes physical injury to another;

(2) Person attempts to by physical menace put another in imminent (? fear?) of serious bodily harm; or

(c) Negligently causes bodily injury with a deadly weapon or by other means likely to cause death or serious bodily injury.

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MS - Simple Domestic Assault

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Simple assault committed against a member of defendant's family or household who lives or formerly lived with defendant, a current or former spouse, the parent of defendant's child, or someone in current dating relationship with defendant.

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MS - Aggravated Assault

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Felony

(1) Attempts to cause serious bodily injury or purposefully, knowingly, or recklessly causing serious bodily injury in circumstances manifesting extreme indifference with human life; or

(2) Attempts to cause or purposefully, knowingly, or recklessly causing bodily injury with a deadly weapon or other means likely to cause death or serious bodily injury.

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MS - Aggravated Domestic Assault

Back 38

Aggravated assault committed against member of defendant's family or household who lives with or formerly lived with defendant, a current or former spouse, the parent of defendant's child, or someone in current dating relationship with defendant.

Front 39

Common Law False Imprisonment

Back 39

Unlawful confinement of a person without consent.

Front 40

Common Law Kidnapping

Back 40

(1) False Imprisonment PLUS movement or concealment.

(2) Movement must be significant; concealment must be secretive.

Front 41

MS Kidnapping

Back 41

Kidnapping is the unlawful, forcible seizure and confinement (or trick) of any perosn with intent to confine or imprison. NOTE - does not have to be secretive.

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Common Law Rape

Back 42

Forced sexual intercourse by a man on a woman not his wife without consent. [ALL states define differently now.]

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MS Rape

Back 43

Rape is forced/forcible sexual intercourse.
(a) Evidence of penetration required unless child under 16.
(b) Showing of actual force NOT necessary if victim has reasonable apprehension of serious bodily harm.
(c) Applies even if victim is spouse.
(d) Penalty is life imprisonment.

Front 44

MS Sexual Battery

Back 44

Sexual Penetration and any of the following:
(a) Without consent;
(b) With a mentally defective or incapacitated or physically helpless person;
(c) With a person between 14 and 16, if the defendant is 36 months (3 years) or more months older than victim;
(d) With a child under 14, if the defendant is 24 months (2 years) or more older;
(e) Does not apply to spouses unless separated and living apart unless forced/forcible penetration without consent.

Front 45

MS - Statutory Rape

Back 45

(1) Person over age of 17 has sexual intercourse with child who is:
(a) between ages of 14 and 16, and
(b) at least 36 months younger than defendant, and
(c) is not the defendant's spouse.

(2) Person of ANY age has sexual intercourse with child who is:
(a) under the age of 14,
(b) at least 24 months younger than defendant, and
(c) not the defendant's spouse.

Consent is NOT a defense to statutory rape.

Front 46

Larceny and Related Crimes

Back 46

(1) Common Law Larceny
(2) Common Law Embezzlement
(3) Common Law False Pretenses

Front 47

Common Law Larceny

Back 47

Mental State - Specific Intent

The Intentional taking and carrying away of personal property in the possession of another person, without consent and with the intent to permanently deprive the other person of the property.

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Larceny Subrules

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(a) There must be an intent to take property of another; if actor (D) believes it is his property, no larceny. (no matter how unreasonable)

(b) There must be an intentional taking and carrying away, but slightest movement is enough if actor has complete control at the time. (can't undo - don't for attempt - it is completed crime).

(c) Property must have been in possession of another. If actor (D) had lawful right to possession of property and then decided to keep it - no larceny. (Employees may only have custody, not possession).
(d) Actor must intend to permanently deprive victim of the property (if intended to return, no larceny).

Front 49

Common Law Embezzlement (be able to distinguish from Larceny)

Back 49

The intentional fraudulent conversion of property of another by someone in lawful (legal) possession.

3 Key Points:
(a) If actor had legal possession when he decided to take, the crime is embezzlement.

(b) If employee has a great deal of control over property (more than mere custody) and takes it, the crime is embezzlement.

(c) NO taking and carrying away required, only need to show use inconsistent with trust arrangement under which actor had possession.

Front 50

Common Law False Pretenses

Back 50

Actor with the intent to defraud obtains TITLE and possession of property of another through fraud/lies.

KEY - need title AND possession.

NOTE - most states have combined all three into the crime of theft.

Front 51

Mississippi Larceny

Back 51

Unlawful taking and carrying away of the personal property of another with the intent to deprive the owner of property.

(1) need intent to permanently deprive, not simply keep temporarily

(2) Grand larceny when property worth $500 or more [FELONY]

(3) PETIT LARCENY

Front 52

MS Embezzlement

Back 52

Wrongful appropriation of property of another where original possession or taking lawful or with owner's consent.
(a) Felony if property $500 or more in value.
(b) Misdemeanor if property less than $500 in value.

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MS False Pretenses

Back 53

Obtain something of value by false representation of fact with the intent to deceive (broader than CL - title NOT required).

Front 54

Common Law Robbery

Back 54

Larceny Plus

The taking of personal property of another from the person or in their presence by force or intimidation with the intent to permanently deprive the person of the property.

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MS Robbery

Back 55

Felonious taking of property of another by violence or putting other owner in fear of immediate bodily injury.

Robbery committed with use of deadly weapon is ARMED ROBBERY.

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Common Law Burglary

Back 56

Breaking and entering of the dwelling place of another at night with the intent to commit a felony inside dwelling.

Breaking - OPEN closed door or window

Entry - cross plane of house or dwelling (no matter how slight)

Dwelling place - includes vacation homes - has been expanded to include curtilege

Nightime - Unable to make out villain's features by natural light.

Intent to commit felony - must exist at time of breaking and entering.

Front 57

MS Burglary - Inhabited Dwelling

Back 57

Breaking and entering of a dwelling house or inner door of dwelling house of another, with or without a deadly weapon, with intent to commit CRIME (not just felony) in the dwelling.
- can occur anytime (day or night)
- dwelling house includes every building immediately connected to the dwelling; also includes vacation and weekend homes.

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MS Burglary - OTHER than inhabited dwelling

Back 58

Breaking and entering of building other than a dwelling (including booths, tents, boats, cars, trucks, railroad, and tailer) with intent to steal or commit a felony within.
- applies to building not immediate connected to a dwelling houses. (MS case goodwill box)

Possession of Burglary Tools independent crime.

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Common Law Arson

Back 59

The malicious burning of the dwelling house of another.

Malice crime so intent or super recklessness required.

Need damage by fire not just smoke.

Front 60

MS Arson (4 degrees)

Back 60

First Degree - Willfully and Maliciously setting fire to or burning any dwelling house.
- dwelling need not be occupied.
- includes garage, barn, or other out building (broader than burglary)
- ALSO INCLUDES PLACES OF WORSHIP.

Second Degree - Willfully and maliciously setting fire to or burning any other building.

Third Degree - Willfully and maliciously setting fire to or burning any personal property.

Fourth Degree - Willfully and maliciously attempts to set fire to or attempts to burn any such building or property mentioned above. [ATTEMPT]

Front 61

Solicitation

Back 61

Asking another person to commit a crime with the intent to see them commit the crime (do not have to pay.)

Crime complete at the time of asking.

If person commits crime then solicitor liable for crime as an accomplice (Gen principle #5). BUT under doctrine of merger, person is only liable to the actual crime, not solicitation.

MS - same.

Front 62

Common Law Attempt

Back 62

Actor is guilty of attempt if:
(1) actor has specific intent to commit crime, and
(2) Either
(a) behavior that puts def in close proximity to intended crime (near)

or

(b) substantial step towards completion (more modern)

If crime completed attempt merges into crime; only guilty of crime committed.

Front 63

MS Attempt

Back 63

(1) Specific intent to commit crime AND
(2) Overt Act toward completion of crime (which is usually conspiracy language)

NOTE - voluntary withdrawal is a defense.

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Common Law Conspiracy

Back 64

Agreement between 2 or more people to commit a crime (specific act).

American courts added requirement that there be an overt act in furtherance of the conspiracy.

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Conspiracy Subrules

Back 65

(1) Agreement can be implied from circumstances.
(2) Agreement must be between two potentially guilty parties.
(3) Withdrawal eliminates liability for future crimes, but requires communication of withdrawal to co-conspirators. (generally, co-conspirators guilty for liable any crimes resulting/in furtherance)
(4) Conspiracy does NOT merge with substantive offense. - Independent crime.

Front 66

MS Conspiracy

Back 66

Agreement b/t two parties to commit crime.

Two guilty minds requirement DOES NOT apply.

No overt act required.

Withdrawal requires exhibition of unequivocal/affirmative conduct.

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Defenses

Back 67

(1) Mistake of Fact
(2) Intoxication

Front 68

Mistake of Fact

Back 68

General Rule - If the defendant has made a mistake with respect to one of the elements of the crime, the defendant MIGHT have a defense.

Application (depends on state of mind)
(1) Specific intent - defense even if unreasonable.
(2) Malice or general intent - defense ONLY if reasonable.
(3) Strict liability - no defense

MS - same

Front 69

Intoxication

Back 69

(1) Involuntary Intoxication

(2) Voluntary Intoxication
(a) Defense ONLY to specific intent crimes.
(b) D must be so drunk that the condition of intoxication makes it impossible to have the requisite intent (didn't know what he was doing).

MS - NOT a defense.

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Self-Defense

Back 70

Non-Deadly - Person can use non-deadly force in self-defense if the person reasonably believes they are under attack.

Deadly Force - Person can use deadly force if the person reasonably believes they are under attack and threatened with immediate death or serious bodily harm.
- EXCEPT (2):
(1) When the person was the original aggressor UNLESS the person withdraws (abandon attack and communicate abandonment).
(2) When the jurisdiction follows the minority rule, must retreat, if possible, before use of deadly force is justified UNLESS in one's home - Castle.) "Minority Retreat Rule/MPC".

Front 71

Self-Defense in MS

Back 71

Essentially same as Common Law

No duty to retreat.

Note - if deadly force is used in defending hte person or the person's dwelling, car, or business, a presumption exists that the person using the force reasonably believed they were under imminent threat of death or serious bodily injury.

Front 72

Defense of Property

Back 72

Common law (Spring-gun Case) - Reasonable non-deadly force can always be used to protect property.

Deadly force can NEVER be used to protect property alone.

MS - same

Front 73

Insanity (crime)

Back 73

Common law - Did defendant know right from wrong? (M'Naughten Rule)

MPC/Modern Rule - Did the defendant lack the substantial capacity to appreciate wrongful nature of conduct OR to conform conduct to the law. (Irresistible Impulse)

Front 74

MS - Insanity

Back 74

Test - Was defendant unable to appreciate wrongful nature of conduct, i.e. distinguish right from wrong (M'Naughten)

Defendant presumed sane, but when defendant offers evidence creating a reasonable doubt as to defendant's sanity, state must prove sanity beyond a reasonable doubt. (becomes element - not affirmative defense)

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Competence (trial)

Back 75

Defendant must be competent to stand trial.

Test - Does defendant understand the nature of the charges AND can the defendant assist in defense of the charges.

Defendant can be given psychotropic drugs to render defendant competent IF drugs are medically appropriate (even over objections).

NOTE for MISSISSIPPI - if judge orders exam, court MUST hold hearing.

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Infancy

Back 76

Common law - Rules of 7
(1) If the child is under 7, no criminal liability. (conclusively presumed)

(2) If the child is between the ages of 7 and 14, rebuttable presumption that the child cannot form necessary mental state.

(3) Person over 14 treated as an adult.

MS - No child under 13 is criminally responsible (except traffic, alcohol or game-related violations).

Children between ages of 13 and 18 handled by Youth Court. [adjudicated delinquent]

For capital cases, Circuit Court has original jurisdiction regardless of age. (adult).

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Duress

Back 77

General Rule - The defendant must establish that the crime was committed under threat of immediate death or serious bodily harm. Available at common law for all crimes EXCEPT homicide.

MS Duress - Defendant must establish
(1) The crime was committed due to an impelling danger that was present, imminent, impending and could not be avoided.

(2) Also, referred to as necessity/coercion.

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Entrapment

Back 78

General Rule - For defense of entrapment defendant must establish:
(1) Criminal design originated with the law enforcement

and

(2) Defendant was not predisposed to commit crime.

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MS Entrapment (99-1-25)

Back 79

(1) Criminal idea originated with the law enforcement

and

(2) Law enforcement officers urged and induced the person to commit the crime,

and

(3) Defendant was not predisposed to commit crime.

(4) Defendant must prove above by clear and convincing evidence.

(5) Note - Entrapment occurs as a matter of law (per se) when law enforcement provides the contraband.