Mi - Criminal Law

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MERGER

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MI uses "same elements" test (not the "same transaction" test) to determine whether multiple prosecutions violate MI's DJ Clause

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Strict Liability offenses

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MI disfavors statues that create SL for ALL ELEMENTS OF CRIME. Unless clear indication that legislation intended to disponse w/ intent requirement, presumed that criminal intent is element of criminal offense (even if not explicitly required by statute)

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ACCOMPLICE LIABILITY for SI and GI crimes

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For SI and GI crimes - MI doesnt require that the accomplice intend the crime to be committed (enough that the accomplice either intended that the principal commit substnative offense or acted w/ knowledge that the principal intended commission of offense)

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ACCOMPLICE LIABILITY for negligene or gross neglignece

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No proof of SI or knowledge needed to convict D as accompliace (enough that D performs acts that aid in creation of situation under which it's reasonably foreseeable that harm will occur)

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SOLICITATION

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MI limits crime of solicitation to cases where D offers, promises, gives MONEY, services OF VALUE with intet that the person commit the crime

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Conditional Solicitation

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Where commission of rime conditioned on an event beyodn D's control - still a crime, even if condition did not occur

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Soliciting minor to commit felony

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Applies to anyone 17+ who recruits, induces, solicits, coerces a person 17 yrs or younger to commit a felony. Minor doesnt have to commit the felony for D to be guilty.

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Renunciation is an affirmative defense to solicitation and to succeed....

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D must prove by prep of evid that he completely/voluntarily renounced crim purpose, notified person solictied, gave timely warning to police (or otherwise made substantial efforts to prevent commission, and that crime did not occur.

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CONSPIRACY

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object of conspiracy must be prohibited by law

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Wharton Rule

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MI doesnt apply it when the # of alleged conspirators exceeds # necessary to commit crime or the relevant statute imposes separate punishment for conspiracy aspect of crime

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Acquittal of other conspirators

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MI follows trad'l view that acquittal of all persons with whom D alleged to conspire precludes D's conviction for conspiracy. EXCEPTION: cases where the other alleged conspirators were acquitted by SEPARATE fact finder (MI allows different fact finders give inconsistent verdicts based on same facts)

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Conspiracy to commit 2nd degree murder

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NONEXISTENT under MI law b/c logically impossible to sconspire to commit a murder w/o premidtating and deliberating thus, can only conspire to commit first degree mruder

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Proof of overt act for conspiracy

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MI does NOT require proof of overt act in furtherance of conspiracy - criminal agreement is essence.

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Withdrawal as defense to conspiracy

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NOT a defense in MI - majority rule -- withdrawal never defense to conspiracy but only to susbtantive crimes commited after point of w/drawal

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Attempted Manslaughter

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Requires INTENT TO KILL or bring about a death (but the V did not die and survived)

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Attempt - OVERT ACT

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MI requires there be additionally some direct movement toward commission of the crime that woudl lead immediately to its completion

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Defenses for Attempt

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Legal Impossibility NOT a defense when D's actual intent is to do an act or bring abotu result proscribed by law

Abandonment - voluntary abandonment is a defense

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Voluntary abandonment as defense to attempt

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D must prove he completely and voluntarily abandoned his criminal intent uncondtionally

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Insanity

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ALI/MPC test; D must prove by prep of evidence and present expert testimony.

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Diminished capacity

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NOT a valid defense

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Special verdict of guilty but mentally ill

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D was mentally ill at time of offense, but illness didnt deprive him of substantial capacity to appreciate the wrongfulness of his condcut or to conform his condcut to the requirements of the law and did not negate intent required to convict. D may be sentenced and incarcerated just as if he was found guilty.

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Vol Intoxication

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NOT a defense to any crime unless D can show an affirmative defense by proving by prep of evidence that he (a) consumed a legally obtained and properly used medication or other substance and (b) did not know or reasonably shouldnt have known he would be intoxicated

Only a defense to SI crimes

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Use of force to repel sexual assautls

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Where theres sufficient evidentiary basis, judge must instruct jury that force, including deadly force, may be used to repel imminent forcible sexual penetration, but cannot be used to repel other kinds of criminal sexual condcut that do not invovle forcible penetration

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Duty to Retreat

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D must retreat when there's safe way to do so. No obliation if D is attacked in own home (even if attacker is another occupant of house), in temporary residence, attahed garage, place of business

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Defense of unborn fetus

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Defense of others doctrine appleis to unborn fetuses in MI to prevent assautl against the mother. Thus mother entiteld to a defense of others instruction.

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Use of force to effectuate arrest

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Use of deadly force to stop fleeing felons not limited to situations where felon poses threat of serious bodily harm. For ex., D catches thief trying to steal stereo from his car and when thief runs away, D fired 2 shots and killed the thief - this is justifiable homicide under MI law (even if thief did not pose threat of serious bodily harm). If police could've used deadly force in same situation, he could be sued civilly in federal court but not criminally prosecuted.

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Duress

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D must prove that the treatening conduct woudl cause REASONABLE PERSON to fear death or serious harm, the condcut actually caused D to fear death/serious harm, D was thinking of this fear at time of alleged act and D committed act to avoid threatened harm.

NOT avialable if D denies committing the crime, though.

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Duress as excuse for certain crimes committed by PRISON INMATES

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Not a defense to hostage taking, to possession of a weapon (unless possession results from disarmin an attacker in self defense)

But a defense to escape

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Validity of duress by prison inmates

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Court has to consider whether D was faced with specific and imminet threat of death, harm, forcible sexual attack; time to seek protection from prison authorities or courts; previosu requests for protection proved useless; D used force against innocent persons in his escape; D immediately reported to authorities after escaping the threat.

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Entrapment

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D may raise it without admitting participation in the crime. MI minority 2 prong rule: (1) govt instigation or causation ttest, (2) reprehensible conduct

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MI 2 prong test for entrapment

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(1) police conduct would induce an otherwise law abiding citizen in the D's circumstnaces to engage in criminal activity (was not ready and willing to commit the crime)

(2)police conduct so reprehensible that cant be tolerated in civilzied society without regard to whether it induced criminal activity

A question of law for court to decide, D has burden of proof, and it exists if D meets either prong.

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Reverse sting operations

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Police pose as sellers of controlled susbtances. NOT entrapment.

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Battery

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MI requires D WILLFULLY cause unlawful touching (not enough that D caused application of force as a result of criminal negligence)

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Assault

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Majority rule PLUS element o either (a) present ability to commit battery or (b) apparent present ability to do so.

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Statutory aggravated assault

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1. Felonious assault (assault w/ dangerous weapon)
2. Assault w/ intent ot do great bodily harm, less than murder
3. Assautl w/ intent to commit felony
4. Assault w/ intent to murder
5. Assault w/ intent to maim or disfigure
6. Aggravated domestic assault
7. Assault with intent to rob
8. Assault against pregnant woman resulting in miscarriage or stillbirth

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Assault w/ intent to murder

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Specific intent to kill under circusmtnaces where crime woudl be murder (not manslaughter) had assault been successful

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Attempted felonious assault

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Armed w/ dangerous weapon, intends to cause another to reasonably fear immediate batter and makes some direct movement toward commission of crime that woudl lead immediately to its completion

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Domestic Assault

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Assault of spouse, former spouse, individiatul whom D has or had dating rlshp, has child, lives with

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Common law murder

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MI - classified as SECOND DEGREE MURDER

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Common Law rule that intent to commit a felony is sufficient to convict D of mruder

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MI does NOT follow this - Pros must prove intent to kill, intent to do great bodily harm or intentional creation of high risk that death or great bodily harm will occur

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Vol Manslaughter

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MI cases have expanded i to include longstanding rlshps and not just spouses (comparable to that of H and W) but not to temproary rlshps or rlshps that have ended

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Mere words not adequate provocation

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MI Supreme Court has not adopted absoulute rule that insulting words are never adequate provocation. Racial slurs might be adequate.

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Imperfect Self Defense

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MI recognizes it to mitigate murder to vol manslaughter where D was at fault (the aggressor).

But if D initiated the confrontation with intent to kill or do great bodily harm, this defense IS NOT AVAILABLE.

Also NOT AVAILABLE where D unreaosnably believed his life was in danger or reacted excessively w/ unreasonable force

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Invol manslaughter

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MI requires death caused as result of GROSS NEGLIGENCE (not necessary that d knowingly consciously create ddanger). If reasonable perosn would've been aware that his condcut created serious risk, ok.

If D acts in self defense but with unreasonable excessive force in grossly negligent manner - invol manslaughter

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Driving while intoxicated and causing death of another

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Invol manslauhter if D was ddriving while intoxicated, voluntairly chose to drive with knowledge he had consumed alcohol/constorleld substances, and D's operation of car caused V's death.

Negligence or gross negligence not required.

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misdemeanor-manslaughter (unlawful act manslaughter)

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MI rejected CL misdemeanor manslaughter rule in part, but retains it with regard to unlawful act committed w/ intent to injure or in grossly negligent manner that proximately causes death

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Failure to perform legal duty

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Invol manslaughter if there was a legal duty to act, had capacity/means/abilityt o at, willful neglect or refusal to act, and death as direct immediate consequence of fialure to act.

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Deliberate and premediated killing

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Lying in wait, use of poison or any other willful deliberate and premeditated killing is FIRST DEGREE MURDER

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Killing of a police or corrections officer

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FIRST DEGREE MURDER if D knew the V was a peae or corrections officer who was lawfully engaged in performance of his duties

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Premeditation

Back 50

in MI, only a minmal amount of time for a "second look" (a step back) necessary to support finding of premeditation in MI

Front 51

First Degree Murder under felony murder theory

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any murder committed during commission or attempt to perpetrate any:
Arson
Criminal sex condcut in 1st or 3nd degree
Child abuse in 1st degree
Robbery
Breaking and entering a dwelling
Carjacking
Larceny of ANY KIND
Extortion
Major controlled susbtance offense
Kidnapping
Home invasion in 1st or 2nd degree
Vulnerable adult abuse in 1st or 2nd degree

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Arson

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Not limited to dwellings!!! Applies to burning of dwelling, real property, personal property, and insured property.

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Child abuse in 1st degree

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Knowingly or intentionally causing seirous physical or mental harm to a child

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Larceny of any kind for F-M

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Does NOT include false pretenses

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major controlled substance offense

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Manufacture, creaiton, delivery, possession with intent to deliver...or possession of 50 grams or more of any narcotic drug..or conspiracy to commit such offense.

"use of controlled susbtance" not an element

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Vulnerable adult abuse

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Adult 18 yrs or older b/c of age or disability requires supervision or personal care or lacks skills to live independently.

First degree - intentionally cuasing serious physical or mental harm

Second degree - reckless or omission

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Open Murder

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Pros doesnt have to specify type of murder charge being brought against D and can bring an open murder charge.

If Bar exam says "open murder" or "murder" - must discuss both first and second degree mruder as well as possible reduction of charge to vol or invol manslaughter IF supported by facts

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Statutory manslaughter

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D can be convicted of statutory manslaughter if intentionally points a firearm at V w/o lawful justification or excuse and death results

Proof of negligence NOT required

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Negligent homicide

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Causes death as result of ordinary negligence in operation of motor vehicle.

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Common Law F-M rule that any killing during course of a felony is murder

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MI doesnt follow this - PRos must prove MALICE (intent to kill, do great harm, create high risk that death or harm woudl occur). IF this is proven and mruder committed during course of a felony, it's first degree murder.

Intent to commit a felony doesnt automaticaly rpove malice but commision of felony in a violent or forceful way might infer intent to kill, do harm, or create high risk.

MALICE MAY BE INFERRED IN MI.

Front 61

To convict a co-conspirator of first degree murder on ground that the murder occurred durin perpetration or attempt thereof an enumerated flony

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Pros must prove that the CO CONSPIRATOR or ACCOMPLIACE intended to kill, do great bodily harm or create high risk w/ knowledge that death or harm was probable result.

Mere fact that co conspirator or accomplicate participates in one of the felonies and a death resulted IS NOT ENOGUH.