Criminal Law

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LEVEL OF PROOF

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• Prosecution must prove all elements beyond a reasonable doubt.

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PRINCIPALS OF CRIMINAL LAW

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If there is no common law definition check act and mental state.
• Actus Reus
• Mens Rea
• Concurrence: Act and mental state must go together
• Causation.

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I. JURISDICTION

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a state acquires jurisdiction to adjudicate a crime if that state is the legal situs of the crime. Meaning either the conduct or the result happened there. (fires gun in Nevada hits someone in CA). Where an individual is a citizen is irrelevant (re. state citizenship)

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JURISDICTION - Crimes of Omission

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a. Crimes Of Omission - jurisdiction lies where the act should have been performed

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JURISDICTION - Merger

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b. Merger: Generally no merger of crimes in American law. BUT ***solicitation and attempt merge into the substantive offence (MBE), meaning the complete defense to attempt is that you did it.
i. CONSPIRACY DOES NOT MERGE with the substantive offence. So you can be convicted for conspiraing to do something and doing it

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ESSENTIAL ELEMENTS OF A CRIME - ACT

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Any bodily movement OR omission where there is a legal duty to act.

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Bodily Movements that Don't Qualify for Criminal Liability

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1. ****BODILY MOVEMENTS THAT DON’T QUALIFY FOR CRIMINAL LIABILITY ***
a. Conduct which is NOT THE PRODUCT OF YOUR OWN VOLITION – someone pushes you and you fall into someone who ends up in the street, hit
b. REFLEXIVE OR CONVULSIVE act *** – having an epileptic seizure.
c. An act performed while you are UNCONSCIOUS OR SLEEPWALKING – NOT falling asleep at the wheel.

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Omission / Legal Duty to Act

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ii. Omission / Legal Duty to Act: Generally no legal duty to rescue but sometimes there is a legal duty to act and it can arise in 1 of 5 circumstances.
1. By Statute: i.e. must file your tax returns
2. By K: A life-guard or nurse.
3. Relationship b/n Parties: *** parents/children, spouses.
4. Voluntarily Assuming a Duty of Care and then failing to adequately perform it. (the lake example)
5. Where Your Conduct Created The Peril: you push a non-swimmer into a pool.

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MENTAL STATE - Specific Intent

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i. Specific Intent – they will qualify for ADDITIONAL DEFENSES [voluntary intoxication & any mistake of fact] not available for other kinds of crime *** MUST MEMORIZE THESE.
1. INCHOATE OFFENCES: (means incomplete offences)
a. Solicitation
b. Conspiracy:
c. Attempt:
2. FIRST DEGREE MURDER:*** (“murder” on the bar = common law murder in the second degree, which is a malice crime – so no additional defenses, would have to see “first degree murder.”)
3. ASSAULT *
4. FALONY’S AGAINST PROPERTY
a. LARCENY
b. EMBEZZLEMENT
c. FALSE PRETENSES
d. ROBBERY
e. BURGLERY
f. FORGERY.

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MENTAL STATE - Malice

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ii. Malice – (only two tested on the Bar – murder and arson) Don’t have to prove S/I, IOW reckless disregard will suffice. Has NOTING TO DO with ILL WILL or EVIL MOTIVE!
1. Murder
2. Arson

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MENTAL STATE - General Intent

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iii. General Intent – (catch-all category) Virtually every crime in the Cal Criminal Code is a general intent crime. (e.g. rape and battery). ALL CRIMES NOT SO FAR MENTIONED ARE G/I CRIMES unless they qualify for our formula for S/L.
1. ** Transferred Intent: Wants to kill X, fires gun at him, misses him and kills another - guilty of murder? Yes the intent is transferred to the other. ALWAYS 2 CRIMES! - murder (other) and attempted murder (X): never merge any crimes that have different victims!

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MENTAL STATE - Strict Liability

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iv. Strict Liability – the NO INTENT crimes. Important for the bar b/c any defense that negates intention can’t be a defense.
1. *** How will you know the statute is a S/L Statute? FORMULA → If the crime is in the administrative, regulatory, or morality area and when you look at the statute or crime you don’t see any adverbs (knowingly, willfully, intentionally) then know it is meant to be a crime of SL.

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ACCOMPLICE LIABILITY

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III. ACCOMPLICE LIABILITY: No longer distinguishing b/n principles in the first and second degree or accessories b/4 or after the fact . Modern statutes hold that all parties to the crime (except accessories after the fact) can be found guilty of the offense.

If the accomplice acts w/ the intent to aid or encourage or council the principal in the commission of the crime. Accomplices are liable for the crime itself and all other FORESEEABLE crimes.
a. ***Never give anybody accomplice liability just b/c they are present and their present seems to consent unless in the facts of that question they are actively participating.

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ACCOMPLICE LIABILITY - Receipt of Stolen Property

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b. Receipt of Stolen Property: must receive possession and control knowing it had been stolen. Later awareness that it was stolen will not suffice.

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ACCOMPLICE LIABILITY - Withdrawal

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c. → WITHDRAWAL: When a person merely encourages the commission of the crime, repudiation of this encouragement constitutes the defense of withdrawal. An accomplice can withdraw by notifying authorities, but the accomplice must withdraw by repudiating any encouragement or neutralizing any assistance b/4 it is committed.

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INCHOCATE OFFENSES (3)

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Solicitation

Conspiracy

Attempt

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Solicitation

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a. Solicitation: Asking someone to commit a crime. The crime of solicitation ends once you ask them → IF THEY AGREE TO DO IT, it becomes a conspiracy. The two crimes merge and the only crime left is conspiracy.

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Conspiracy

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Agreement: (does not have to be express)
- Majority: Plus an Overt Act in furtherance (even if small)
- Minority & CL: the agreement itself is enough for liability.

Intent to Agree

Intent to Pursue an Unlawful Objective - meeting of the guilty minds.

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Libility for Conspiracy

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→ LIABILITY FOR CONSPIRACY: Each conspirator is liable for all the crimes of co-conspirators if those crimes were committed in furtherance of the conspiracy and were foreseeable.

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Conspiracy and the defense of impossibility

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→ IMPOSSIBILITY IS NO DEFENSE TO CONSPIRACY

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Conspiracy - Withdrawal

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→ WITHDRAWAL: Can never withdraw the defendant from liability for the conspiracy itself b/c the conspiracy is complete once the agreement is made – would have to thwart the success of the conspiracy. HOWEVER, the ∆ can withdraw from liability for the conspirators other crimes.

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Attempt (definition)

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c. Attempt: Attempt = Specific Intent + a Substantial Step beyond mere preparation in the direction of the commission of the crime. Mere Preparation cannot ground liability for attempt.

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Attempt - Factural Impossibility

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i. Factual Impossibility: not a defense to attempt that it would have been impossible for the Δ to do all of the things he intended to do.

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Attempt - Legal Impossibility

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ii. Legal impossibility: Δ can NOT be found guilty of attempt if he tried to do something that wasn’t criminal

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Defenses (11)

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Insanity
Intoxication
Infancy
Self-Defense
Defense of Others
Defense of a Dwelling
Privilege or Authority of Law
Duress
Mistake of Fact
Consent
Entrapment

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DEFENSES - Insanity

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a. Insanity: (four tests – know trigger words)
i. McNaughton: At the time of his conduct the ∆ suffered from a mental disease or defect and lacked the ability to know the wrongfulness or understand the nature and quality of his actions.
ii. Irresistible Impulse Test: ∆ lacked the capacity for self-control and free choice.
iii. Durham Rule: ∆ conduct was a product of a mental illness.
iv. MPC: ∆ lacked the ability to conform his conduct to the requirements of law.

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Insanity - Diminshed Capacity

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v. DIMINISHED CAPACITY: DEFENDANT IS ENTITLED TO A PARTIAL DEFENSE WHERE THE PROOF SHOWS THAT AS A RESULT OF A MENTAL DEFECT SHORT OF INSANITY HE DID NOT HAVE THE PARTICULAR MENTAL STATE REQUIRED TO COMMIT A SPECIFIC INTENT CRIME IN ORDER TO MITIGATE CULPABILITY OR REDUCE THE CHARGE.

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DEFENSES - Intoxication (Voluntary & Involuntary)

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i. Voluntary: (self-induced) addicts and alcoholics. But this is a defense only to SPECIFIC INTENT CRIMES***.

ii. Involuntary: They must slip something into your drink. This is a form of insanity. Both insanity and involuntary intoxication are DEFENSES on the bar TO ALL CRIMES, INCLUDING THE NO INTENT CRIMES OF SL.

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DEFENSES - Infancy

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c. Infancy: Under 7, no criminal liability. Under 14, rebuttable presumption of no criminal liability.

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DEFENSES - Self Defense (non-deadly force)

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i. Non-Deadly Force: A victim may use non-deadly force in self defense, anytime that victim reasonably believes that force is about to be used on them.

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DEFENSES - Self Defense - Deadly Force

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ii. Deadly Force: A person may use deadly force in self defense if he is (1) w/out fault, (2) confronted w/ unlawful force; (3) threatened w/ imminent death or great bodily harm.
1. Majority Rule → Anytime that victim reasonably believes that deadly force is about to be used on them.
a. UNREASONABLE BUT HONEST BELIEF → COULD REDUCE THE CHARGE TO MANSLAUGHTER (IMPERFECT SELF DEFENSE.
2. Minority Rule → A victim must retreat to the wall, if it’s safe to do so.
a. EXCEPTIONS TO THE DUTY TO RETREAT
i. Home – no duty to retreat out of your home.
ii. Rape or Robbery – not if you’re a victim of rape or robbery.
iii. Police Officers - no duty to retreat.

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DEFENSES - Self Defense - Deadly Force - To Apprehend a Fleeing Felon

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3. To Apprehend a Fleeing Felon – A private person may use deadly force to apprehend a fleeing felon if the felon threatens death or serious bodily harm and deadly force is necessary to prevent escape, BUT the person harmed must actually be guilty of the felony.

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DEFENSES - Self Defense - Giving to Original Aggressor

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iii. Giving to Original Aggressor: Not unless the person in the Q does something that no-one has ever done in the real world. He must (1) withdraw and then turnaround and (2) communicate he’s withdrawn.

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DEFENSES - Defense of Others

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e. Defense of Others:
i. The majority view holds that a person may use force in defense of another if that person reasonably believes that the person he was assisting had the legal right to use force in his own defense.
ii. In a minority of jurisdictions defense of others does not apply if the person protected had no actual legal right to use self defense; the defendant steps into the shoes of the defended.
iii. In some jurisdictions it is required that the person in whose defense the defendant acted must have been either a member of the defendant’s family or an employee/employer of the defendant.

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DEFENSES - Defense of a Dwelling

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f. Defense of a Dwelling: Deadly force may never be used solely to defend your property.(e.g. springgun)

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DEFENSES - Privilege or Authority of Law

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(see torts)

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DEFENSES - Duress

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h. Duress: When somebody holds a gun on you and says, if you don’t rob that store I’m going to kill you! A DEFENSE ON THE BAR TO ALL CRIMES EXCEPT HOMICIDE.

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DEFENSES - Mistake of Fact

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Specific Intent = Any mistake of fact (reasonable or unreasonable)

Malice and General Intent - Reasonable Mistakes Only

Strict Liability - Never

Unreasonable Mistake of Fact: (e.g. Whitebread’s pink car example).

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DEFENSES - Consent

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Do not indulge a consnet of the victim defense.

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DEFENSES - Entrapment

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k. Entrapment: The entrapment defense is VERY NARROW – is almost never available b/c predisposition on the part of the ∆ to commit the crime negates entrapment.

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COMMON LAW OF CRIMES (14)

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Battery
Assault
Homicide
Manslaughter
First (and Second) Degree Murder
Rape
Statutory Rape
Larceny
Embezzlement
False Pretenses
Robbery
Extortion
Burglary
Arson

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Battery

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(see tort) This is a GENERAL INTENT crime NEVER STRICT LIABILITY.

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Assault (2 kinds)

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i. Assault as an Attempted Battery: (e.g. attempt to hit, duck and miss). * Like all attempts this is a SPECIFIC INTENT crime.
ii. Assault as a Threat: (e.g. I threaten you w/ bodily injury). This is a GENERAL INTENT crime.

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Homicide:

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c. Homicide: unlawful killing of a human being w/ malice aforethought.
i. Intents
1. To Kill
2. To Do Seriously Bodily Harm
3. Highly Reckless Or Depraved Heart Murder: intentaional performance of an act entailing a substantial likelihood of death. (reckless driving)
4. Intent to Commit a Felony: ** see five defenses to felony murder below. Most courts limit it to inherently dangerous felonies.

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Manslaughter (Voluntary and Involuntary)

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i. Voluntary: A killing from passion (or reasonable provocation) / a provoked killing. Make sure there has been no time to cool off.
ii. Involuntary:
1. Killings From Criminal Negligence: (e.g. asleep at the wheel)
2. Misdemeanor Manslaughter: Killing someone while you are committing a MISDEMEANOR or an UN-ENUMERATED FELONY.

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First and Second Degree Murder

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i. Rule → First degree murder is committed w/ deliberation and premeditation. Commission of an inherently dangerous felony (e.g. kidnapping).
ii. Second Degree → (if split) done w/out premeditation and deliberation. If intent = voluntary murder; w/out intent = involuntary murder.

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Rape

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f. Rape: The unlawful carnal knowledge of a woman by a man, not her husband, w/out her consent.. The slightest penetration completes the crime of rape.

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Statutory Rape

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g. Statutory Rape: STRICT LIABILITY. Remember, consent and mistake of fact – no defense!

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Larceny

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h. Larceny: A (1) wrongful taking (stealing), then some asportation, if anyone moves that property in the slightest bit, the property of another w/out the individuals consent w/ the intent to deprive the owner permanently of his property – this intent must exist at the time of the taking. Only gets possession, not title.
i. TAKING PROPERTY IN THE BELIEF THAT IT IS YOURS, OR THAT YOU HAVE SOME RIGHT TO IT, IS NOT COMMON LAW LARCENY.
1. Remember → this is a S/I crime, so any mistake of fact, reasonable or not is a defense.

BUT, in the Continuing Trespass Situation: if Δ wrongfully takes property w/o the intent to permanently deprive and later decides to keep it, he is guilty of larceny at the moment he decides to keep it

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Larceny by Trick

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ii. Larceny by Trick: if the taking is by consent garnered by a misrepresentation

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Embezzlement

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i. Embezzlement: The embezzler always has lawful possession (usually a trustee over a trust fund), engages in an illegal conversion. The embezzler does not have to do it to benefit herself. The embezzler only gets possession NOT title.

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False Pretenses

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j. False Pretenses: The ∆ convinces the owner of property to convey title by a FALSE PRETENSE – as to a present or past fact, not a false promise to do something in the future.

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Robbery

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k. Robbery: Robbery = larceny + assault. Assault elements that turn a larceny into a robbery: you must take from the person or his presence (very broad – covers tying farmer in barn & taking stuff out of his house) against his will, either by violence (any small amt will do (enough to constitute a battery) – but not picking a pocket), or by putting in fear (must be a threat of imminent harm [can be to someone elses’s life]). Threats of imminent harm are robbery, threats of future harm are exhortation.

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Extortion

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l. Extortion: Extortion is blackmail. ONLY TWO DISTINCTIONS B/N EXTORTION AND ROBBERY. (1) To be extortion you don’t have to take anything from the person or his presence, and (2) these are threats of a future harm.

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Burglary

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m. Burglary: (an offense against the habitation) Requires a (1) breaking (actual – involving some force no matter how slight, or constructive – by fraud or threat), and (2) entering (when any part of the body enters) the (3) dwelling house (not a barn, or commercial structure) (4) of another, AT NIGHT, w/ the (5) intent to commit a felony inside – this must exist at the time of the breaking and entering or it is not CL Burglary.
i. Actual Example/Trick → If the door or window is wide open there is no common law breaking, but then if they push open an interior door there’s the breaking.
ii. Constructive Example/Trick → Woman gives maid the key to her house to clean, maid enters for personal reasons.

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Arson

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n. Arson: Arson is the malicious burning of the dwelling house of another. You must show every part of this little phrase. ONLY APPLIES TO BURNINGS. There must also be a material wasting of fiber of the building by fire. (charing of a portion of the wall will suffice).

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The Dwelling of Another

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Right to occupancy not ownership is key.

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FIVE DEFENSES TO FELONY MURDER

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VII. **FIVE DEFENSES TO FELONY MURDER:
a. First: If the ∆ has a DEFENSE TO THE UNDERLYING FELONY, he has a defense to felony murder
b. Second: They must be committing SOME OTHER FELONY than the murder
c. Third: The deaths must be FORESEEABLE
d. Fourth: Deaths caused while fleeing from a felony are felony murder BUT once a ∆ reaches some POINT OF TEMPORARY SAFETY, deaths caused thereafter are NOT felony murder.
e. Fifth: ∆ is NOT liable for the death of a CO-FELON AS A RESULT OF RESISTANCE by the victim or the police.