Criminal Law

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crime defined

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a crime is an act or omission prohibited by law for the protection of the public, the violation of which is prosecuted by the state and punishable by fine, incarceration, and/or other restriction of liberty.

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felonies and misdemeanors

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at common law, felonies are those offenses punishable by forfeiture of property. statutory felonies are generally those offenses punishable by death or incarceration in a prison for more than on eyear. misdemeanors are those offenses that are not classified as felonies.

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malum in se and malum prohitum

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malum in se crimes are inherently dangerous, bad or immoral (common law felonies). malum prohibitum offenses are not prohibited because of any basic immorality but out of necessity to regulate the general welfare

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burden of proof

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due process and the defendant's sixth amendment right to a jury trial require that the prosecution prove each element beyond a reasonable doubt before a jury; an element may not be withdrawn from jury consideraton adn decided as a matter of law by the court.

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defensive matters

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due process permits placing the burden to prove most defenses on the defendant.

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presumption s and inferences modifying burden of proof

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presumptions and permissive inverences may so interfere with the prosecution's burden of proof as to violate due process

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permissive inferences

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due process is not violated if a jury is instructed that it may, but need not, infer one fact from another if the ultimate fact to be inferred more likely than not flows from the fact.

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burden of proof on provocation by presuming malice

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if the jury in a murder prosecution is permitted to presume malice aforethought from the killing itself, thus requiring the def to prove a sudden provocation in order to reduce the crime to voluntary manslaughter, due process is violated. The presumption of malice here relieved the prosecution of its burden of proving the mental state for murder.

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burden of proof on extreme emotional disturbance

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when intent to kill must be proved by the prosecution, the defendant's due process rights are not violated by requiring him to prove that he acted under extreme emotional disturbance which would reduce the killing to manslaughter. here, the prosectution proved the mental state for murdeer and the defendant can be made to show "deensive facts" such as provacation.

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justifications for punishment: specific prevention, general prevention, retribution

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specific prevention: punishment may prevent an offender from committing future crimes through deterrence (fear of penalty) or incapacitation (restraint) of the offender, and by affording her the opportunty for treatment and possible rehabilitation.

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general prevention

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penalizing offenders may also prevent others from committing crimes by generally deterring them through anticipation of similar punishment, by educating the public as to the moral wrong of crime, by creating social solidarity, and by keeping others from taking the law into their own hands.

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retribution

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the fact that the defendant committed a crime is itself reason to punish her

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costs vs benefits

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the benefits to be gained from making conduct criminal depend on the extent to which the social interests justifying criminalization will be furthered. But any benefits must be weighed against the direct costs of criminalization (law enforcement, imprisonment) the incidental costs (improper searches and seizures) and the impact on society.

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constitutional right of privacy

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although the constitution does not expressly mention a right of privacy, the supreme court has found such a right implied in several constitutional provisions. Therefore, a person may not be convicted for engaging in conduct falling within the scope of this federal right ( the use of contraceptives and the private possession of obscenity)

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due process prohibition against vagueness

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general rule---criminal statute must be precise. the due process clauses of the fifth and fourteenth amendments require that criminal statues be precise so as to give notice as to what conduct is criminal and to discourage arbitrary enforcement.

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criteria for evaluating vagueness

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a criminal statute is unconstituionally vague if it fails to define the offense with sufficient definiteness so that ordinary people can understand what is prohibited and so as to discourage arbitrary and discriminatory enforcement of the statute.

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curing vagueness by scienter

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a statue that would otherwise be unsconstitutionally vague may be upheld if it requires that he offense be committed with scienter (prior knowledge or intent)

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cruel and unusual punishment

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the eight amendment prohibition against cruel and unusual punishment is binding on the states via the fourteenth amendment and imposes a number of different limits on criminal law.

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inherently impermissible punishments

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inherently barbaric or degrading punishment is prohibited. Torture, death by painful or lingering methods, and forfeiture of citizenship are probably also prohibited.

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disproportionate penalties

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penalties that are so grossly and outrageously disproportionate to the defs conduct are also prohibited

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death penalty

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the death penalty is constitutionally permissible if it is imposed under a procedure that adequately assures evenhanded determinations as to whether the penalty is appropriate i na particular case.

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multiple liability for identical or related criminal acts

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in general-overlapping criminal liability. overlapping liablity may be incurred when the same act constitutes several crimes (murder and battery). and when acts constituting differet offenses are committed closely together and for related reasons (burglary as a means to commit a larceny). such overlapping criminal liability is sometimes criticized as resulting in disproportionately severe punishment.

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common law doctrice of merger

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at common law, if th esame act was both a felony and a misdemeanor, the misdemeanor merged into the felony and there could be no conviction for the misdemeanor. The merger doctrine did not apply if both crimes were misdemeanors or felonies.

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FIFTH AMENDMENT prohibition against double jeopardy primarily applies to repeated prosecutions for the same or perhaps related crimes.

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no bar to multiple convictions in one proceeding . if a legislature makes the same conduct two crimes, a defendent may be convicted in one proceeding of both offenses as long as this was the legislative intent.

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determining legislative intent

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blockburger rule: in federal cases, congress is presumed to have intended to prohibit punishing a defendant for two crimes arising from teh same conduct unless each crime requires proof of an additional fact that the other does not.
this rule is a means of determining intent. if there is direct evidence that congress did intend double punishment, blockburger does not apply.

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state double jeopardy prohibitions

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many state constitutions contain prohibition sagainst double jeopardy similar to the federal provisions. state courts may construe these provisions more stringently, thus giving defendants broader protection that the federal provision.

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statutory bars to multiple conviction or punishment

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state statutes often prohibit multiple convictions for a single act. some courts have interpreted "single act" to include several crimes related in their commision and committed pursuant to a single and primary objective.

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modern merger of offenses as matter of legislative intent

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courts sometimes hold that a defendant cannot be convicted of related crimes because one offense "merges" into another. however, this is not the application of the common law merger rule but rather a determination of legistlative intent barring convictions for both crimes.

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multiple victim exception

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where there are multiple victims, a defendant can be convicted of an offense committed on each victim, even if there was only one criminal act.

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criminal acts-actus reus

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an affirmative act or occasionally an omission or failure to act is necessary for the commission of a crime, mere thoughts are not enough.

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acts sufficient for criminal liability- affirmative v negative acts

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acts that will support a conviction vary with the crime itself; an act may be an affirmative act or a failure to act.

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affirmative acts-acts of commission

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an affirmative act will suffice for criminal liablity if it involves some conscious and volitional movement. exceptions: although criminal liability cannot ordinarily be baed on unconscious movements, a defendant may be held liable if she caused her unconsciousness or had knowledge of pending unconsciousness

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negative acts-acts of omission

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a defendants failure to act may suport criminal liability if: she was under a legal duty to act, she had the requisite knowledge and it was possible for her to act.

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situations giving rise to legal duties

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a legal duty to act may arise from a relationship between the parties (parent/child) a particular statue, a contract, the voluntary undertaking of a task, or from creating a situation of peril. also, if the defendant has a duty to control the conduct of others (as employer) she may be obliged to act. moral obligation is not enough

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knowledge required for liability

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in omission cases a probable majority of courts hold that a def must be aware of the facts giving rise to a legal duty to act. some jurisdictions require in addition that a def be aware of the law that creates a duty (although in some circumstances, knowledge of this sorut is required by due process

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act must be capable of performance

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for criminal liability to attach, it must have been possible for the def to have done the act. there is no liability where the omission was due to the fact that she lacked the means or ability to perform.

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attendant circumstances

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in addition to the requisite elements, many crimes require proof that certain circumstances existed at the time of the act in question. without a showing of these facts the defs actions are not criminal.

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criminal state of mind-mens rea

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the element of mens rea establishes what the def must have been thinking at the time the act was committed for criminal liability to attach.

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distinguish mens rea from motive

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motive refers to the reason for acting and generally is not essential for criminal liability.

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general intent-volitional doing of prohibited act

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general intent means only that the defendant must have intended to commit the act constituting the crime. This is the mental element of any crime not requiring a specific intent or which cannot be established by criminal neg
general intent may be inferred from the commission of the prohibited act

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specific intent-intent to do something further

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specific intent is generally an intent to do som efurther act or cause some additional consequences beyond that required to complete the actus reus
unlike general intent, specific intent cannot be inferred but must be specifically proven

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criminal negligence

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liability for certain crimes may be based on a showing of criminal negligence. in such cases the def acted with gross lack of care. but note that negligence must involve a higher probability of harm and a greater degree of unreasonableness than is necessary for civil liability purposes.

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malice

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some crimes require malice, which is usually construed as requiring the commission of a volitional act without legal excuse of justification ill will or hatred need not be shown.

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strict liability crimes

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a few crimes entirely dispense with a mens rea requirement in regard to some or all of the elements

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identifying strict liability crimes

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whether a crime imposes strict liability is a matter of legislative intent. such intent will most likely be found if the crime is a new statutory offense, the crime does not infringe on other persons rights, the crime is part of a regulatory scheme, the crime imposes a relatively light penalty and it appears that requiring proof of mens rea would impede implementation of the legislative purpose

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application

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due process prohibits strict liability in some situations, particularly if a serious pentalty is involved and the crime resembles a traditional common law offense for which mens rea has usually been required

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modern classifications of state of mind

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the modern trend is for statutes to adopt the model penal code approach, which distinguishes four levels of state of mind

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different states of mind

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purpose-a desire to engage in certain conduct or cause a certain result
knowledge-an awareness that something will occur or does exist
recklessness-an awareness of a substantial and unjustifiable risk that something will occur or does exist
negligence-a situation in which a person should have been aware of a substantial and unjustifiable risk that a certain result would occur or that a certain circumstance would exist (distinguish recklessness) recklessness requires a conscious awareness of the risk involved. negligence involves circumstances in which a reasonable person would have been aware of the risk.

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concurrence of actus reus andmens rea

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the defs act and intent must concur, the act or result must be attributable to the culpable state of mind.

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concurrence of actus reus and mens rea

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the defs act and intent must concur, the act or result must be attributable to the culpable state of mind

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concurrence between mens rea and act

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generally, the def must have had the requisite intent at the moment he performed the act

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concurrence between mens rea and result

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if proof of a result is required, the occurrence of the result must be attributable to the mens rea. however, it is not essential that the intent and result concur in point of time.

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special problem-mistake of death cases

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special probs arise where the def mistakenly believes he has caused death and then, without intent to kill, takes other action which actually cause death. jurisdictions are split, with some refusing to find liability because there is no intent, others finding liability because the defs behavior was all part of a single scheme.

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causation

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if a crime is one that requires proof of a result, the defs conduct must be shown to have been the legal cause of that result. two kinds of causation must exist; factual and proximate causation

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factual causation-but for test

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the prosecution must show that "but for" the defs actions, the result would not have occurred when and as it did

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speeding up result

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when the def has simply speeded up an invevitable result, most courts find factual causation

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exception-concurrent sufficient cause

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an exception to the general "but for" requirement applies when two factors acting concurrently cause a result and either alone would have been sufficient to cause that result. both factors will be considered as factual causes.

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proximate causation

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in addition to factual causation, there must be proof that the def is the proximate cause of a result. generally, proximate cause is present when the result occurs as a natural and probable consequence of the defs act and there is no intervening factor sufficient to break the chain of causation

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intervening factor

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an intevening factor is one set in motion after the defs act. therefore a preexisting condition will not break the chain of causation

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unforseeable

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the intevening factor must have been unforeseeable by the def at the time of the act

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sole direct cause

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the intervening factor must also be the sole major cause of the result

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independent

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the intervening factor must be independent of the defs original act

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complicity in the crime

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parties to the crime; liability for a crime is not limited to the actual perpetrator of the criminal act, but generally extends to anyone who has encouraged (incited) or assisted (abetted) the commission of the crime or, at common law, hindered apprhension of the perpetrator.

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common law classification of participants-party rules

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parties to felonies-parties are classified according to their role in the perpetration of the crime and whether they wer epresent at its commission.

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principle in the first degree

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this is the person who actually perpetrates the crime by his own acts, by the acts of innocent person, or by means of an inanimate agency.

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principal in the second degree

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this classification includes a person who incites or abets the commission of a crime and wo is actually or constructivley present at its commission (ex; a lookout)

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accessory before the fact

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this is the person who incites or abets the principal but who is ot actually or contructively present at the commission of the crime.

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accessory after the fact

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this is one who receives or assists another, knowing that the other has committed a felony, in order to hinder the arrest, prosecution, or conviction of the perpetrator. note that at common law a wife could not be an accessory after the fact.

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signifance of party rules

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at common law, a person chargd as an accessory could not be convicted as a principal, and vice versa. also, an accessory cold not be convicted unless the principal was convicted, nor could an accessory be convicted of a higher offense than the principal.

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misdemeanors and treason

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no distinction is made among parties to these offenses; all parties are liable as principles. but note: there is no liability for aiding a person after the commission of a misdemeanor.

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classification of participants under modern statues

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modern statues tend to abandon the categories of participants and simply make all who aid and abet the commission of a crime guilty of that crime.

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inciters and abettors

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many statues make inciters and abettors principals, and the model penal code provides that a person is guilty as an accomplice if she commits it herself or if she is legally accountable for the conduct of the accused.

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accessory after the fact

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one who would be an accessory after the fact at common law is generally now punished for the commission of a separate and distinct offense; no liability is incurred for the crime of the principal.

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no constitutional bar

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neither double jeopardy nor due process prohibits the trial and conviction of an aider and abetteor after the acquittal of the principal.

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accomplice liability

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accomplice liability attaches to those who aid or encourage the commission of a crime

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requirements for accomplice liability

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the def must have incited and abetted the perpetration of the crime with the requisite mens rea, and the person incited or abetted must actually have committed the offense.

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abetting

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one abets the commission of a crime if he provides assistance in any significant way

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inciting

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one incites the commission of a crime if he encourages (provides any inducement to) another to commit it. However, the perpetrator must be aware of the encouragement.

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mens rea requirement

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the accomplice must have the mens rea required for the crime. courts are divided as to whether an accomplice must intend that his efforts effectively assist or encourage the successful commission of the crime or whether awareness that the offense will be committed by teh person aided or encouraged will suffice (modern trend requires that the accomplice act with purpose)

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perpetrator must have commited crime

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the person encouraged or aided must have committed the offense (although unlike at common law conviction of the pertrator is not necessary). jurisdictions are split on whether an accomplice can assert the perpetrator's defs

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scope of liability

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traditional rule: accomplices are liable for all probable consequences of their conduct and all crimes committed by the perpetrator that were reasonably foreseeable results of the complicated crime.
minority view: limits accomplice liability only to those crimes of the perpetrator that the accomplice actually anticipated and intended.

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possible defenses to accomplice liability

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withdrawal-one incites or abets another can avoid accomplice liability by effective and timely withdrawal bfore the crime is committed. if the def is an inciter, he must communicate a recommunication to the perpetrator; however, if the def is an abettoer, he must also deprive his aid of its effectiveness

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situations where accomplice liability inapplicable

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if the participant is within a special class of persons intended to be protected by the statute , a vicitim of an offense, or a person inherently necessary to commission of the crime she is not liable as an accomplice

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distinguish-accomplice unabel to commit crime as perpetrator

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the fact that an accomplice cannot commit a crime by hsi own actions does not preclude liability as an accomplice to that crime

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liability of post-crime aiders (accessories after the fact)

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at common law, a def is liable as an accessory after the fact if she knew the person she assisted committed a felony, and aid was given for the purpose of impeding enforcement of the law. However, modern statutes either retain the category of accessory after the fact but make it a separate offense with a penaly unrelated to the perpetrators penalty or else establish an entirely new offense