Criminal Law (Short)

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Specific Intent Crimes

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SOLICITATION: intent to have the person solicited commit the crime.

ATTEMPT: Intent to complete the crime.

CONSPIRACY: Intent to have the crime completed.

1ST DEGREE MURDER: premeditated intent to kill (defined by statute).

ASSAULT: Intent to commit a battery.

LARCENY/ROBBERY: Intent to permanently deprive another of his interest in the property taken.

BURGLARY: Intent at the time of entry to commit a felony therein.

FORGERY: Intent to defraud.

FALSE PRETENSES: Intent to defraud.

EMBEZZLEMENT: Intent to defraud.

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General Intent

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All crimes require "general intent"--an awareness of all factors constituting the crime; D must be aware that he is acting int he proscribed way and that any attendant circumstances required by the crime are present.

Intent can be inferred.

Also transferred intent.

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Strict Liability Offenses

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SL offenses do not require awareness of all of the factors constituting the crime. Major significance is that certain defenses, such as mistake of fact, are not available.

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ACCOMPLICE LIABILITY: Parties

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Most jxns have abolished party distinctions (i.e., principal in the 1st degree, accessory after the fact). Modernly, all "parties to the crime" can be found guilty of the criminal offense.

--Principal
--Accomplice
--Accessory after the fact

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ACCOMPLICE LIABILITY: Parties -- Principal

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A principal is one who, with the requisite mental state, ACTUALLY ENGAGES IN THE ACT OR OMISSION that causes the criminal result.

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ACCOMPLICE LIABILITY: Parties -- Accomplice

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An accomplice is one who, with the intent that the crime be committed, aids, counsels, or encourages the principal before or during the commission of the crime.

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ACCOMPLICE LIABILITY: Parties -- Accessory After the Fact

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An accessory after the fact is one who receives, relieves, comforts, or assists another, knowing that he has committed a felony, in order to HELP THE FELON ESCAPE ARREST, TRIAL, OR CONVICTION.

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ACCOMPLICE LIABILITY: Mental State

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to be convicted as an accomplice, a person must have given aid, counsel, or encouragement with the INTENT to aid or encourage the principal in the commission of the crime charged.

In the absence of a statute, mere knowledge that a crime would result is insufficient.

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ACCOMPLICE LIABILITY: Scope of Liability

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An accomplice is responsible for he crimes he did or counseled AND for any other crimes committed in the course of committing the crime contemplated, as long as the other crimes were PROBABLE OR FORESEEABLE.

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SOLICITATION

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Solicitation consists of inciting, counseling, advising, inducing, urging, or commanding another to commit a felony with the specific INTENT THAT THE PERSON SOLICITED COMMIT THE CRIME.

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CONSPIRACY

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1) An AGREEMENT BETWEEN 2 OR MORE persons;

2) An INTENT TO ENTER INTO AN AGREEMENT; and

3) An INTENT TO ACHIEVE THE OBJECTIVE of the agreement.

Today, a MAJ of the states require an OVERT ACT in furtherance of the conspiracy, but mere preparation will usually suffice.

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Conspiracy: "Aiding and Abetting"

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Each conspirator may be liable for the crimes of all other conspirators if TWO REQUIREMENTS are met:

1) the CRIMES WERE COMMITTED IN FURTHERANCE of the objectives of the conspiracy; and

2) the crimes were a "natural and probable consequence" of the conspiracy; i.e., FORESEEABLE.

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Conspiracy: Attempt distinguished

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In attempt cases, there must be a SUBSTANTIAL STEP toward the commission of the crime.

In conspiracy cases (at CL), the agreement itself is normally sufficient to constitute the crime.

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Conspiracy: DEFENSES

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(i) Factual Impossibility is not a defense.

(ii) Withdrawal from a conspiracy is NOT A DEFENSE to a charge of conspiracy, because the conspiracy is complete as soon as the agreement is made and an overt act is committed. The MPC recognizes voluntary withdrawal as a defense if the D thwarts the success of the conspiracy.

(iii) A co-conspirator may limit liability for subsequent acts of other members of the conspiracy if they NOTIFY ALL MEMBERS of the conspiracy, and such notice must be given in time for them to abandon their plans.

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ATTEMPT

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A criminal attempt is an act that, although done with the intention of committing a crime, falls short of completing the crime. Attempt requires:

(1) A specific intent to commit the crime; and

(2) An overt act in furtherance of that intent.

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Attempt: Intent

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The D must have the intent to perform an act and obtain a result that, if achieved, would constitute a crime.

Always requires a SPECIFIC INTENT.

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Attempt: Overt Act

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The D must have committed an act BEYOND MERE PREPARATION for the offense.

MAJ Rule: MPC Test -- requires that the act or omission constitute a "substantial step in a course of conduct planned to culminate in the commission of the crime."

Traditional Rule: Proximity Test -- evaluate the act based on how close the D came to completing the offense.

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Attempt: DEFENSES

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(i) Legal impossibility is always a defense.

(ii) Factual impossibility is not a defense.

(iii) Abandonment: The general rule is that abandonment is NEVER A DEFENSE. The MPC approach is that WITHDRAWAL WILL BE A DEFENSE, but only if:

1) it is FULLY VOLUNTARY; and
2) it is a COMPLETE ABANDONMENT

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SELF-DEFENSE: Non-deadly Force

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An individual who is without fault may use SUCH FORCE AS REASONABLY APPEARS NECESSARY to protect herself from the imminent use of unlawful force upon herself. There is NO DUTY TO RETREAT before using non-deadly force, even if retreat would result in no further harm to either party.

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SELF-DEFENSE: Deadly Force

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A person may use deadly force in self defense if:

a) she is without fault;

b) she is confronted with unlawful force; and

c) she is threatened with imminent death or GBI.

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Crime Prevention: Non-deadly force

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can use to extent reasonably appears necessary to prevent felony, riot, serious breach of peace (CA: any crime).

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Crime Prevention: Deadly Force

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Traditional rule: to prevent commission of any felony.

Modern rule: for “dangerous felonies” (involving risk to human life, i.e., robbery, arson, residential burglary, etc.).

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MISTAKE OF FACT

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Must negate state of mind: defense only if show D did not have state of mind required for crime.

Example: D takes stack of metal rods from under freeway overpass, believing them to be abandoned scrap metal. In fact, public works placed them there to use on road repair. D n.g. of theft, as lacks specific intent to permanently deprive owner of property.

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MISTAKE OF LAW

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General rule: no defense. Whether D's belief that conduct legal is reasonable or not, generally no defense.

Mistake or ignorance of law may negate intent required.

Example: D charged with violating statute prohibiting selling gun to a person seller knows is convicted felon. D unaware of statute, but knows buyer was previously convicted of a crime. D believes that crime was a misdemeanor, not a felony. While ignorance of statute no defense, mistaken belief that buyer was convicted of a crime which was a misdemeanor may be defense, as statute required seller to be aware that buyer convicted of felony.

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WITHDRAWAL

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Usually comes up in context of conspiracies or accomplice liability. Some jurisdictions: also available for attempt, if voluntary, complete and motivated by genuine change of heart.

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IMPOSSIBILITY

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Frequently arises in attempts.

Common law: Legal impossibility a defense; factual impossibility not. Issue: was intended conduct, in fact, criminal.

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FACTUAL IMPOSSIBILITY

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Factual impossibility: when D's intended end would be a crime, but factually impossible to reach.

Example: Robber reaches into V's pants pocket for wallet, but pocket empty. Factual impossibility no defense to attempted robbery.

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LEGAL IMPOSSIBILITY

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Legal impossibility: when not illegal to commit act that D seeks to achieve.

Example: If Dr. performs abortion, believing it to be a crime, but it has in fact been legalized. Dr. not guilty of abortion or attempt.

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Defenses: INSANITY

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this defense exempts certain Ds b/c of the existence of an abnormal mental condition at the time of the crime. Insanity is a legal term covering many possible mental abnormalities. TESTS:

M'Naughten Rule

Irresistiible Impulse Test

Durham (or NH) Test

ALI or MPC Test

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INSANITY: M'Naughten

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D is entitled to an acquittal if the proof establishes that:

a) a DISEASE of the mind

b) CAUSED A DEFECT of reason

c) such that the defendant LACKED THE ABILITY AT THE TIME of his actions to either:

(1) know the WRONGFULNESS of his actions; or

(2) understand the NATURE AND QUALITY of his actions.

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INSANITY: M'Naughten -- Application

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If the D suffered from delusions (false beliefs), it is necessary to determine whether his actions would have been criminal if the facts had been as he believed them to be.

A D is not entitled to acquittal if he merely believes his actions were morally right.

Loss of control of mental illness is NOT A DEFENSE.

M'Naughten does not act to unduly restrict evidence heard by juries. Most jxns admit any evidence that reasonably leads to show the mental condition of the D at the time of the crime.

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INSANITY: Irresistible Impulse Test

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A D is entitled to an acquittal if the proof establishes that because of mental illness he was UNABLE TO CONTROL HIS ACTIONS OR TO CONFORM HIS CONDUCT TO THE LAW.

Some jxns apply both M'Naughten and the irresistible impulse test, so a person is entitled to an acquittal if he meets either test.

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INSANITY: Durham (or New Hampshire) Test

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A D is entitled to an acquittal if the proof establishes that his crime was "the product of mental disease or defect."

A crime is a product of the disease if it would not have been committed BUT FOR the disease.

Broader than M'Naughten or Irresistible Impulse test; created to give psychiatrists greater liberty to testify concerning the D's mental condition.

Was replaced by the ALI test, but still remains in a few jxns (or NONE?).

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INSANITY: American Law Institute (ALI) or MPC Test

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a D is entitled to an acquittal if the proof shows that he suffered from a MENTAL DISEASE or defect and as a result LACKED SUBSTANTIAL CAPACITY to either:

(i) APPRECIATE THE CRIMINALITY (wrongfulness) of his conduct; or

(ii) CONFORM HIS CONDUCT to the requirements of the law.

This test combines the M'Naughten and Irresistible Impulse tests by allowing for the impairment of both cognitive and volitional capacity.

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Defenses: INTOXICATION

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Intoxication may be caused by ANY SUBSTANCE. Evidence of intoxication may be raised whenever the intoxication negates the existence of an element of a crime.

The law distinguishes between voluntary and involuntary intoxication.

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VOLUNTARY INTOXICATION

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Intoxication is voluntary (self-induced) if it is the result of the intentional taking without duress of a substance known to be intoxicating.

Voluntary intoxication evidence may be offered when the D is charged with a crime that requires PURPOSE (INTENT) OR KNOWLEDGE to establish that the intoxication prevented the D from formulating the requisite intent.

Good defense to specific intent, but not general intent, crimes.

However, it is NOT a defense to crimes requiring MALICE, RECKLESSNESS, NEGLIGENCE, or crimes of STRICT LIABILITY.
EX: not a defense to CL Murder.

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INVOLUNTARY INTOXIFICATION

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Intoxication is involuntary only if it results from the taking of an intoxicating substance

(i) WITHOUT KNOWLEDGE of its nature,

(ii) UNDER DIRECT DURESS imposed by another, or

(iii) PURSUANT TO MEDICAL ADVICE while unaware of the substance's intoxicating effect.

Involuntary intoxication may be treated as a mental illness, in which case D may be entitled to acquittal based on the jxns test for insanity.

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ENTRAPMENT

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Entrapment occurs if the intent to commit the crime originated not with the D, but rather with the creative activities of law enforcement officers. The defense of entrapment consists of 2 elements:

1) the CRIMINAL DESIGN must have ORIGINATED WITH LAW ENFORCEMENT officers; and

2) the D must NOT have been PREDISPOSED to commit the crime prior to the initial contact by the government.

If D offers evidence to show these two elements, then the gov't must show predisposition beyond a reasonable doubt.

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BATTERY

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Battery is an unlawful application of force to the person of another resulting in either bodily injury or an offensive touching.

Need not be intentional; force need not be applied directly. Consent is a defense only to simple battery (e.g., medical operation).

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AGGRAVATED BATTERY

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Defined by statute; most common are batteries in which:

1) a DEADLY WEAPON is used;

2) SERIOUS BODILY INJURY is caused; or

3) the VICTIM IS A CHILD, WOMAN, OR POLICE OFFICER.

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ASSAULT

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An assault is either:

(i) an ATTEMPT TO COMMIT A BATTERY; or

(ii) the INTENTIONAL CREATION--other than by mere words--of a REASONABLE APPREHENSION in the mind of the victim of imminent bodily harm.

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Statutory AGGRAVATED ASSAULT

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All jxns treat certain aggravated assaults more severely than simple assaults; these include assaults:

1) with a DANGEROUS (OR DEADLY) WEAPON;

2) with INTENT TO RAPE, MAIM, OR MURDER.

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MAYHEM

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CL mayhem required either dismemberment or disablement of a bodily part.

Modernly, most states have retained the crime of mayhem in some form, although the recent trend is to abolish mayhem as a separate offense and to treat it instead as aggravated battery.

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Classifications of HOMICIDES

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At CL, homicides were divided into 3 classifications:

1) JUSTIFIABLE homicides (those commanded or authorized by law);

2) EXCUSABLE homicides (those for which there was a defense to criminal liability); and

3) CRIMINAL homicides.

CL Criminal Homicides are divided into 3 types:

1) Murder
2) Voluntary Manslaughter (VM)
3) Involuntary Manslaughter (IVM)

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MURDER

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Murder is the unlawful killing of another human being with malice aforethought. Malice aforethought may be express or implied.

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MURDER: Malice Aforethought

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In the absence of facts excusing the homicide or reducing it to VM, malice aforethought exists if the D has any of the following states of mind:

(i) Intent to kill (express malice);

(ii) Intent to inflict GBI;

(iii) Reckless indifference to an unjustifiably high risk to human life ("abandoned and malignant heart"); or

(iv) Intent to commit a felony (FMR)

In the case of (i), (iii), or (iv), the malice is IMPLIED.

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VOLUNTARY MANSLAUGHTER (VM)

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VM is an intentional killing distinguishable from murder by the existence of adequate provocation, i.e., a killing in the heat of passion.

ELEMENTS:

a) the provocation must have been one that would arouse SUDDEN AND INTENSE PASSION in the mind of an ORDINARY PERSON such as to cause him to lose his self-control;

b) the D must have IN FACT BEEN PROVOKED;

c) there MUST NOT HAVE BEEN A SUFFICIENT TIME to cool; and

d) the defendant IN FACT did not cool off between the provocation and the killing.

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VM: Imperfect self defense

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Some states recognize an "imperfect self defense" doctrine under which a murder may be reduced to manslaughter even though:

a) the DEFENDANT WAS AT FAULT in starting the altercation; or

b) the defendant UNREASONABLY BUT HONESTLY BELIEVED in the necessity of responding with deadly force.

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INVOLUNTARY MANSLAUGHTER (IVM)

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There are two types of IVM:

1) Criminal Negligence

2) "Unlawful Act" Manslaughter

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IVM: "Misdemeanor-Manslaughter" Rule

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A killing in the course of the commission of a misdemeanor is manslaughter, although most courts would require either that the misdemeanor be malum in se (i.e., an inherently wrongful act), or if malum prohibitum, that the death be the foreseeable or natural consequence of the unlawful conduct.

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FALSE IMPRISONMENT (FI)

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The CL misdemeanor of FI consisted of:

(i) unlawful

(ii) confinement of a person

(iii) without his valid consent.

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KIDNAPPING

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At CL, the misdemeanor of kidnapping was the forcible abduction or stealing away of a person from his own country and sending him to another. Modern statutes and the MPC extends far beyond this definition.

Kidnapping is defined as confinement of a person that involved either:

(a) some movement (i.e., asportation) of the victim; or

(b) concealment of the victim in a "secret" place.

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AGGRAVATED KIDNAPPING

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(a) kidnapping for ransom

(b) kidnapping for purpose of commission of other crimes

(c) Kidnapping for offensive purpose (i.e., w/ intent of harming the person or committing some sexual crime with them)

(d) child stealing.

Only some movement is required modernly. Secrecy is not necessary either.

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RAPE

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Rape is the unlawful carnal knowledge of a woman by a man, not her husband, without her effective consent.

Requires only penetration of the female sex organ by the male sex organ.

Today, most states have abolished the marriage exception.

Must be without the victim's effective consent.

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STATUTORY RAPE

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Statutory rape is the crime of carnal knowledge of a female under the age of consent. Even if the female willingly participated, the offense is nevertheless committed because consent is irrelevant. Age of consent varies from state to state, generally from 16 to 18 (CA is 18).

BUT will a D's reasonable mistake as to the victim's age prevent liability for statutory rape? The best answer is NO, since statutory rape is a SL crime. Reasonable mistake may prevent conviction if the D reasonably believed the V was old enough to give effective consent.

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LARCENY

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(Basic CL property offense) Larceny consists of:

(i) A taking (caption);

(ii) and carrying away (asportation);

(iii) of tangible personal property;

(iv) of another

(v) by trespass;

(vi) with intent to permanently (or for a reasonable time) deprive the person of his interest in the property. (e.g., intent to borrow not larceny).

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EMBEZZLEMENT

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Embezzlement, variously defined in different jxns, generally requires:

(i) the fraudulent;

(ii) conversion;

(iii) of property;

(iv) of another;

(v) by a person in lawful possession of that property.

Embezzlement did not exist at CL; Modern statutes distinguish between grand embezzlement (a felony) and petit embezzlement (a misdemeanor).

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FALSE PRETENSES

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False pretenses generally consists of:

(i) obtaining title;

(ii) to the property of another;

(iii) by an intentional (or knowing) false statement of past or existing fact;

(iv) with the intent to defraud the other.

False pretenses did not exist at CL; Modern statutes distinguish between grand false pretenses (a felony) and petit false pretenses (a misdemeanor).

Distinguishable from "Larceny by Trick" by WHAT is obtained.
If only possession --> larceny by trick.
If title is obtained --> false pretenses.

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ROBBERY

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Robbery is a felony in all jxns and consists of:

(i) a taking;

(ii) of personal property of another;

(iii) from the other's person or presence;

(iv) by force or intimidation;

(v) with the intent to permanently deprive him of it.

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BURGLARY (CL)

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CL burglary is:

(i) a breaking;

(ii) and entering;

(iii) of the dwelling;

(iv) of another;

(v) at nighttime;

(vi) with the intent of committing a felony therein.

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BURGLARY (Modern)

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Modern statues have made the following changes:

1) abandonment of requirement of BREAKING;

2) it is still a burglary if the offender remains concealed in a structure with the intent to commit an offense;

3) structures that can be burglarized has been expanded (beyond DWELLING);

4) elimination of NIGHTTIME requirement;

5) Intent necessary is often expanded to make it sufficient that the D intended to commit any theft.

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ARSON

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At CL, arson consists of:

(i) the malicious;

(ii) burning;

(iii) of the dwelling;

(iv) of another.

Burning = blackening or charring of structure; mere blackening by smoke or discoloration by heat is not sufficient. Modernly, expanded to include things like exposions.

Malice required.

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Houseburning (not arson)

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The CL misdemeanor of houseburning consists of:

(i) malicious (as defined in arson);

(ii) burning;

(iii) of ONE'S OWN dwelling;

(iv) if the structure is situated either:

(a) in a city or town; or

(b) so near to other houses as to create a danger to them.

Modern statutes (contrary to CL) make it an offense to burn one's own dwelling for the purposes of collecting insurance on it (arson with intent to defraud an insurer).

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FELONY MURDER RULE (FMR)

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A killing during the course of a felony--even an accidental one--is murder. Malice is implied from the intent to commit the underlying felony.

Under the CL, the felonies included are BARRK

To convict a D of FM, the prosecution must prove that he committed the underlying felony. So, if he has a substantive defense to the underlying felony, he has a defense to FM.

CAUSATION required. D's conduct must he the cause-in-fact of the result; i.e., the result would not have occurred BUT FOR the D's conduct.

Year and a day rule (CL)

Remember, Intervening acts break the chain of causation.