Criminal Law

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Homicide

Back 1

the killing of another human being by another human being.

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Murder

Back 2

the killing of another human being with malice aforethought.

Front 3

How to establish malice aforethought...

Back 3

1) intent to kill, 2) intent to cause SBI, 3) depraved-heart/extreme indifference, 4) felony-murder.

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Elements of Murder

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ACT (method of killing, defining death); MENTAL STATE (malice aforethought); CIRCUMSTANCE (another human; born alive rule, fetus); RESULT (death, year and a day rule)

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1st Degree Murder

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premeditation and deliberation; specific intentional killings; specific felony murder.

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2nd Degree Murder

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Malice Aforethought (no premeditation/deliberation); certain types of felony murder

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The Five Felony Murders

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Arson, Rape, Burglary, Kidnapping, Robbery

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Manslaughter

Back 8

the unlawful killing of another human being without malice aforethought

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Voluntary Manslaughter

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provocation/heat of passion; Extreme Emotional Disturbance

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Involuntary Manslaughter

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Gross Negligence; Misdemeanor Manslaughter; Reckless Killing;unintended homicide under certain circumstances

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Reducing Murder to Voluntary Manslaughter (4 obstacles)

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1) reasonable provocation; 2) must have in fact been provoked; 3) reasonable man would not have "cooled" between provocation and delivery; 4) D did not in fact col off in time interval.

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"Long Smoldering Provocation"

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Even when considerable time has passed since the provoking act, the D may still be entitled to a manslaughter instruction in the heat of passion has been building up since provocation.

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"Rekindling" of Provocation Doctrine

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Reminders of the provocation may "rekindle" the D's passion, thereby justifying a reactioneven after substantial time has passed.

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Examples of Reasonable Provocations

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battery, assault, mutual combat, illegal arrest, adultery, words (not words alone), injury to 3rd persons, mistake as to provocation.

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Deliberation

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requires cool mind capable of reflection

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Premeditation

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one with a cool mind did in fact reflect (even for a brief moment)

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Evidence Showing Premeditation and Deliberation

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Planning Activity (prior possession of weapon, approach, taking victim to secluded place); Motive (relation to victim, prior threats); Nature of Killing (manner of killing particular and exacting to show act on pre-conceived design) (wounds in vital organs).

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Deadly Weapon Doctrine

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one who intentionally usues a deadly weapon on another human being and thereby kills him presumably intends to kill him (permissive inference for the jury).

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Felony Murder

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the unlawful killing of another human being during the commission or attempted commission of an inherently dangerous felony.

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Criminal Negligence Manslaughter

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requires more than ordinary negligence. Must be one of the two: 1) high degree of death risk or 2) D aware of risk in conduct. Requiring BOTH = recklessness

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Omission Manslaughter

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manslaughter liability based on criminal negligence or recklessness in omitting to act when there was a duty to act. (INV MS)

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Omission to act becoming murder

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when D knows death is certain to result from omission; he intends to kill.

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Types of Misdemeanor Manslaughter INV MS

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traffic offenses, speeding, drunk driving, battery, assault, etc. (also felony that may not suffice for felony murder)

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Attempted Suicide

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not a crime, usually urged to psychiatric treatment.

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Attempted Suicide Which Harms Another

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may be considered murder, manslaughter or no crime. Usually INV MS

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Suicide by Force or Duress

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Murder

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Inducing Suicide

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may be considered manslaughter even if no intention (i.e. giving gun to suicidal).

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Felony-Murder Co-Felons

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both guilty of the one's conduct if deviation from the plan is foreseeable consequence. Not guilty if intentional killing is so far removed from the plan.

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Felony Murder - Proximate/Legal Cause

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death may not occur in an extraordinary/far removed manner; must be legally caused by D's felonious conduct; "natuarl and probable consequence"

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Felony-Murder res gestae

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Killing may take place at sometime before or after the felony and still qualify as "in the commission of."

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Felony Murder - "In the Commission of"

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Duration of criminal offense from commencement of felony; immediate flight therefrom; "no break in chain of events"

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CL Battery

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the unlawful application of force to the person of another resulting in physical harm or offensive touching

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CL Assault

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1) an attempted battery, or 2) intentionally placing a victim in fear of harm. “specific intent” crime

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Doctrine of Merger

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D cannot be found guilty of both (i.e. assault and battery) because they “overlap.” Most states combine both behaviors.

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CL Larceny (the Grand-Daddy of Embezzlement and Obtaining Possession by False Pretenses)

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

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Statute of Embezzlement

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under a fiduciary (employee) position, a person converts property to his own use.

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Obtaining Property by False Pretenses

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person obtains both title and possession of property of another through lies (“swindling”).

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Theft

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• Most states have (by statute) done away with larceny, embezzlement, and obtaining by false pretenses and replaced them with one crime: THEFT.

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CL Robbery

Back 39

intentional taking and carrying away of personal property in the possession of another from the other’s person or presence by force or intimidation with intent to permanently deprive

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CL Burglary

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the breaking and entering of the dwelling house of another in the night with intent to commit a felony therein.

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Updates to Burglary

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To cover both dwelling houses and commercial buildings;
the “nighttime” requirement has been removed; Separate offenses of “breaking and entering” now exist in most jurisdictions. This covers ALL OTHER ILLEGAL ENTRIES.

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CL Arson

Back 42

the malicious burning of the dwelling house of another.
Malice crime (general intent crime) – no specific intent ; Intentional or recklessness will suffice

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Updates to Arson

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Includes business buildings;
Includes one’s own house (for insurance);
Degrees of Arson:
Intentional & more damage (higher degree);
Reckless & less damage (lower degree)

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Double Jeopardy

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D may not be prosecuted and punished for both felony murder and felony, must be independent. Cannot be charged twice.

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Due Process

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Minimum standards of fairness and decency in a free society.

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"proof beyond a reasonable doubt"

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State must prove each element of the crime beyond a reasonable doubt. (Civil = preponderance of evidence).

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Jury Nullification

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When the jury goes against the law

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14th Amendment

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Life, liberty, property, and due process. (State laws must not conflict with Federal).

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Goals of Criminal Law

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To reduce societal harm through 1) deterrance, 2) rehabilitation, 3) restraint, 4) retribution.

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"principal of legality"

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Cannot be a crime BEFORE the law defining the undesirable conduct exists. Must be on books. Must have advance notice.

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ex post facto

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"after the fact" or retroactive law, is a law that retroactively changes the legal consequences of acts committed.

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"void for vagueness"

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Unclear law that may be considered unconstitutional.

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General Principles of Criminal Law (examples)

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proof beyond a reasonable doubt, right to a jury trial, constitutional limitations on states, principal of legality, etc.

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Criminal Defenses

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1) raising a reasonable doubt against an element, or 2) establishing a defense.

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mala in se

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wrong in themselves; inherently evil

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mala prohibita

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not inherently evil, wrong only because prohibited by legislation

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Concurrence of Acts/Results with Mental Fault

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both must concur; physical conduct and mental state must concur; D's death causing acts must be a direct consequence of his prior mental fault.

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Mistake as to Death Cases

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intent to kill but does not bring about death (unknown to D); the following act to conceal the crime DOES bring about the death. Convictions usually held that such death (i.e. disposal of body) was part of the original plan.

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Transferred Intent

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No transferred intent (only within the same crime) Cannot be convicted of the mental state of one crime and the act of another)

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Causation

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Legal/Proximate Cause AND Cause in Fact

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Cause in Fact

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But-For; substantial factor in brining about the result

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Legal/Proximate Cause

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Cause of result that D may be fairly held liable

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Intentional Crimes: Unintended Victim

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transferred intent limited to homicide, battery, arson, and malicious mischief; harm must be likely foreseeable

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Intentional Crimes: Mistaken Identity

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mistake does not negative his intent to kill.

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Transferred Negligence/Transferred Recklessness

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D's conscious awareness of the danger to one person would suffice when another person is harmed and the D was negligent

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Inchaote Crimes

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those that are punishable for the activity aimed at the completed crime. Behavior that is done BEFORE the target offense has taken place.

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CL Attempt

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to establish attempt, it must be shown that D 1) had an intent to commit the target crime, AND 2) engaged in behavior that was in “close proximity” to the completed crime

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CL MPC

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D must have 1) taken a “substantial step” in target offense and 2) behavior was a step planned to culminate in the commission of a crime.

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Mental State Requirement for Attempt

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"specific intent"

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CL "Close Proximity" Test

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D’s behavior came within “close proximity” to the target offense – very near the target crime.

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CL Impossibility Defense to Attempt

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attempts to commit the crime, but impossible due to circumstances (factual impossibility = defense) or law (legal impossibility = defense).

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Factual Impossibility (CL)

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NO DEFENSE "pickpocketer"

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Legal Impossibility (CL)

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DEFENSE "speeder" law is not on the books to even be broken

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MPC Impossibility Defense to Attempt

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(5.01) when it is impossible to commit the crime, the D can STILL BE FOUND LIABLE guilty of attempt.

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Exception to MPC Impossibility Defense to (Inherent Impossibility)

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if the crime itself did not exist (i.e. the speeder).
• (5.05) the court has the discretion to dismiss if it finds BOTH the impossibility AND that the D’s actions were of no danger to the public.
o (i.e.) The VooDoo Matron – may be exception since it was an impossibility and she was no danger to the public, court would have the discretion to dismiss, even though she would be nailed otherwise by MPC 5.01. (AKA Inherent Impossibility)

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CL Abandonment Defense to Attempt

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no defense if efforts abandon.
No need for abandonment defense at CL because D would not be guilty unless “close proximity” to target offense anyway.

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MPC Abandonment Defense to Attempt

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allows abandonment defense under “limited circumstance.” Under certain requirements, D avoids liability after “substantial step” – but abandons efforts. (5.01(4)). (Attempt must have been committed for defense to even possibly be applicable).

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MPC: Voluntary v. Involuntary Abandonment in re: to attempt

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Involuntary abandonment is no defense.
MPC requires voluntary abandonment not influenced by extrinsic circumstances

Front 79

Merger Doctrine in Attempt

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an attempt merges with the crime attempted. CANNOT BE CONVICTED
OF BOTH….ONLY ONE CONVICTION.
(i.e.) attempted murder and murder = only murder.

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Punishment for Attempt

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Most states DO NOT USE MPC. Most –
Punishment for attempt<crime attempted.

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CL Conspiracy

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an agreement between two or more people to do an unlawful act PLUS some minimum overt act in furtherance of the agreement.

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Pinkerton Rule for Conspiracy

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Co-conspirators are liable for conspiracy AND all foreseeable crimes in furtherance of the conspiracy.

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Merger Doctrine in Conspiracy

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CONSPIRACY DOES NOT MERGE WITH SUBSTANTIVE (CRIMINAL) OFFENSE

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Elements of Conspiracy

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Agreement; Mental State; Minimum Overt Act

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Vicarious Liability for Felony Murder (CL minority)

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minority - if anyone dies as a proximate result of the felony, all felons are liable for that murder.

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Vicarious Liability for Felony Murder (Modern majority)

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majority - felony murder does not apply when a third party, such as a police officer, bystander or victim of the felony, commits a justified homicide, that is, kills the felon.

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What does the majority still hold when a third party (non-felon) mistakenly kills another innocent party?

Back 87

the death of the third party will be considered a foreseeable result of the felony.

Front 88

What is the highest degree for deparaved heart murder?

Back 88

second degree murder

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Co-felons in the felony murder doctrine.

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If one co-felon is liable under felony murder, then ALL co-felons are equally liable.