Criminal Law Outline-----
.docx
School
John Marshall Law School**We aren't endorsed by this school
Course
CONTRACTS 201
Subject
Law
Date
Jan 8, 2025
Pages
28
Uploaded by jennihope7926
1Criminal Law OutlineI.Purposes of Criminal LawA.The purpose of criminal law is to punish those who breach the social order through acts or omission1.Social order is living with others in implicit agreement to forego benefits one could have without the law2.Rules and restrictions help guarantee order and safetyB.Purposes of punishment (acronym “DRIER”):1.Deterrence a)Specific deterrence—An effort to dissuade specific individuals from committing similar behaviorsb)General deterrence—An effort to dissuade others similarly situated from committing similar future conduct (i.e. “to make an example” of someone)2.Rehabilitationa)Aims to help the convicted person improve and function in society. The US criminal justice system generally does not operate for this purpose (except for juvenile delinquency programs).3.Incapacitationa)Also known as isolation4.Educationa)Education helps people understand the law, although citizens are expected to know the laws and to follow them (“ignorance is not an excuse”)5.Retributiona)In the US criminal justice system, deterrence, incapacitation, and retribution are the most relevant and common purposes of punishment.C.The purpose of punishment is not served by punishing involuntary acts.D.The purpose of a statute is to announce the behaviors that society determines will merit formal condemnation if provenII.Elements of a CrimeA.Definition of a Crime1.Crime—A crime is an act or omission that, if proven, merits the formal, solemn condemnation of the community2.The formal solemn condemnation of the community is sentencing—the pronouncement of punishment by a judge who represents the communityB.Anatomy of a Crime:1.Actus reus (“evil hands”)2.Mens rea (“an evil mind”)3.Causation4.Harm/result5.Attendant circumstances (not always applicable)C.Types of Crimes:1.Malum in se (inherently evil, ex. murder)
22.Malum prohibitum (“bad because we say they’re bad,” ex. not paying taxes)III.Actus Reus—Requirement of a Voluntary ActA.The actus reus is the act required as an element of the crime1.Actus reus is a voluntary act2.Actus reus can also be an omission to act where an appropriate duty to act existsB.MPC Categorization of Involuntary Acts (actor is not culpable):1.Reflex or convulsion2.Bodily movement during unconsciousness or sleep3.Acts performed under hypnosis4.[Catch-all] Bodily movement that is not the product of the effort or determination of the actor, either conscious or habitual (e.g.,. someone pushed into a fight would not be culpable because they did not act voluntarilyC.One complete defense to actus reus is unconsciousness, because the “act” must be voluntaryD.Omissions1.Typically, omissions to act are not punished. Exception—Under both CL and MPC, omissions can be punished if a legal duty exists under RASK (Relationship, Assumption of Duty, Statute, Contract)a)Relationship (a special relationship requiring action exists, ex. a parent-child relationship)(1)Other types of special relationships: Husband/wife (lesser duty than a parent/child relationship), ship crew/passengers, supervisor/employeesb)Assumption of duty (a voluntary assumption to care for one who can’t care for himself AND preventing others from helping that person)c)Statute (a statute imposes an obligation)d)K (a contractual relationship is assumed; a contract can be either written or oral)2.Courts recognize a duty to report crimes or dangerous situations if the defendant caused the danger. If the defendant fails to report the crime/dangerous citation and an otherwise preventable death occurs, the defendant could be charged with criminal homicide3.Good Samaritan statutes impose a duty to act without imperiling oneselfa)Bystander effect—Each bystander thinks that someone else will call the police or intervene4.A physician does not have a duty to continue treatment if that treatment is ineffective. In the immediate aftermath of a crisis, medical personnel have a duty to intervene with treatment. When use of the machinery becomes futile, that duty ends. At that point, the medical personnel is not culpable for the patient’s deathE.Possession1.Possession is considered actus reus2.Actual possession requires direct physical possession/control3.Standard for constructive possession—A person is responsible for constructive possession when he knows the object is there and enough time
3has elapsed that he is able to responsibly dispose of it under the circumstancesF.Intoxication1.Voluntary intoxication—Knowing ingestion of a substance that compromises mental facultiesa)Addiction qualifies as voluntary intoxication2.Involuntary intoxication—Forced ingestion or ingestion without a person’s knowledge of a substance that compromises mental faculties3.Pathological intoxication—Ingestion of a substance with a capacity for inebriation that has a greater impact than expected4.MPC and CL essentially agree on intoxication as a defense:a)MPC—Intoxication is not a standalone defense. It must negate requisite mens rea to be a defenseb)CL—Voluntary intoxication is not a defense to general intent, but can be a defense to specific intent crimes. It can be a partial defense but is never a complete defensec)Involuntary intoxication is a potential complete defenseG.It is unconstitutional to punish status offenses. Status does not involve action (ex., the status of being an addict); however, the actions themselves can be punishable (ex., smoking marijuana)IV.Mens Rea—Requirement of a Culpable MindA.Mens Rea Generally1.Every crime has a mens rea except strict liability offenses2.Every element of a crime has a mens rea3.One crime can have more than one mens rea—each element may have its own mens rea4.The mens rea can apply to the person’s conduct, the circumstances, or the result.B.CL Standard1.General intent—A person must intend action/conduct, but not necessarily the specified result2.Specific intent—Intent to bring about completion of a crime; a person must intend action and a specified harm or resulta)Specific intent brings higher culpability.b)A shoots B. General intent asks, “Did you intend to shoot B?” Specific intent asks, “Did you intend to shoot B so that B would die or suffer injury?”C.MPC Standard1.Purposely—It is the actor’s conscious object to engage in conduct of that nature or to cause such a result, and if the element involves the attendant circumstances, he is aware of the existence of such circumstances or he believes or hopes they exist2.Knowingly—If the element involves the nature of his conduct or the attendant circumstances, he is aware that his conduct is of that nature or that such circumstances exist, and if the element involves the result of his
4conduct, he is aware that it is practically certain that his conduct will cause such a result3.Recklessly—A person acts recklessly with respect to a material element of an offense when he consciously disregards a substantial and unjustifiable risk that the material element exists or will result from his conduct.4.Negligently—A person acts negligently with respect to a material element of an offense when he should be aware of a substantial and unjustifiable risk that the material element exists or will result from his conduct.a)Prove the highest mens rea; then all lesser mens rea are also provenb)A specific intent crime under CL requires a MPC mens rea of knowingly or purposelyc)Actual knowledge or lack thereof distinguishes recklessness from negligenceD.Intent is proved circumstantially. The natural consequences of one’s actions are typically deemed to be intended1.A defendant can have multiple intents. Having one intent does not negate mens rea for another intentE.Mistakes of Fact and Law1.Mistake of Fact—Occurs when there is some error about a fact in the casea)Mistake of fact is a defense when it negates the mens rea for a specific intent crimeb)Important difference between MPC and CL: (1)CL—Mistake of fact is a viable defense only if the mistake is both honest and reasonable(2)MPC—Only an honest mistake is required; there is no “reasonableness” requirement(3)MPC and CL agree that mistake of fact only negates the requisite mens rea if the facts the defendant believed were innocentc)Consent can be withdrawn2.Mistake of Law—Defendant is mistaken about a legal principle or legal effect of a situation or statusa)Generally, ignorance of the law is no defenseb)The burden of knowing the law is on citizensc)Mistake of law is a defense when the defendant receives an official statement from the court that contained incorrect information(1)Statements from the government itself, such as a statute, judicial decision or judge, or official opinion could allow for mistake of law to be a defense(2)However, statements from a lawyer or spoken statements by police are not applicable F.Transferred Intent—Transferred intent is a legal fiction that marries a mens rea directed towards one person with an actus reus to another person (ex., shooting at A and hitting B)G.Willful Blindness or Deliberate Ignorance as “Knowledge”1.Two basic elements for “willful blindness:”
5a)The defendant subjectively believed there was a high probability that a fact exists; and b)The defendant takes deliberate actions to avoid learning of that fact. 2.Courts consider actual knowledge and deliberate ignorance to be legally equalH.Statutory Interpretation1.Courts may supply a mens rea term to statutes not including mens rea terms, essentially rewriting the statute in their interpretation except in cases of public health and welfare, since these are strict liability crimes2.A mens rea term at the beginning of a statute applies to the entire statute3.When interpreting a statute, the court first looks at the plain language of the statute, then to the intention of the legislature4.If a statute is ambiguous regarding mens rea, courts will usually interpret the statute in favor of the defendant5.The Rule of Lenity—Statutes should be interpreted narrowly to ensure the defendant has notice of offenses for which they could be punisheda)[WHAT] The rule of lenity requires ambiguous criminal laws to be interpreted in favor of the defendants subjected to them. b)[WHY] This venerable rule not only vindicates the fundamental principle that no citizen should be held accountable for a violation of a statute whose commands are uncertain, or subjected to punishment that is not clearly prescribed. It also places the weight of inertia upon the party that can best induce Congress to speak more clearly and keeps courts from making criminal law in Congress’s stead.c)[WHEN] The rule comes into operation at the end of the process of construing what Congress has expressed, not at the beginning as an overriding consideration of being lenient to wrongdoers. That is not the function of the judiciary.I.Strict and Vicarious Liability1.Strict Liabilitya)Courts typically do not favor punishing strict liability cases (i.e., those with no mens rea), but there are narrow circumstances where strict liability crimes are punished:(1)Public health/safety—Inherently dangerous substances are more likely to have strict liability(2)Public welfare (ex. laws protecting minors from sexual misconduct)b)MPC v. CL on Strict Liability(1)CL is relatively similar to the MPC regarding strict liability; the MPC formalizes what is stated in the common law(2)MPC rejects imprisonment for strict liability offenses. It opts for civil penalties or other punishment insteadc)In determining strict liability, courts consider:(1)Public health and safety(2)Potential punishment → the court infer a mens rea when a potential sentence is high
6d)Strict Liability and Minors(1)The burden is always on the adult(2)A child’s consent is never legally applicable(3)A mistake of fact is irrelevant because no mens rea is required (strict liability)2.Vicarious Liability—A defendant in a position of responsibility can be vicariously liable for the negligent conduct of someone else due to his positiona)High-ranking officials in positions of command can be held vicariously liable for crimes committed by employees, and strictly liable for crimes involving the public welfareb)According to the MPC, a corporation can be convicted based on vicarious liability if: (1) a statute specifies a violation or offense; (2) there is an omission of specific duty; or (3) the commission is authorized, requested, commanded, performed or recklessly tolerated by a high-ranking officialc)Vicarious liability depends on the statute and jurisdiction3.Strict liability and vicarious liability can act together such that a corporation and company official who are innocent (possessed no mens rea) are criminally liableJ.Common Law Year and a Day Rule—The person is presumed to have died from natural causes and not killed unless death ensues within a year and a day (abolished in all states)V.CausationA.Types of Causation:1.Cause-in-fact—Defendant’s action is the “but for” cause2.Proximate Cause—The point at which criminal liability should end is determined as a matter of fairness a)To convict, there must be cause in fact and proximate cause3.Independent Intervening Cause—A cause that is not natural or foreseeable that changes the trajectory of a situation a)In the case of an independent intervening cause, no previous circumstances are responsible for the criminal outcome4.Dependent Intervening Cause—A natural or foreseeable event a)Dependent intervening causes do not negate culpabilityb)Simple negligence of others is foreseeable, and qualifies as a dependent intervening cause5.Concurrent Sufficient Cause—Two independent actors can cause a certain harm at same time, and both are liableB.MPC and CL—Agreement on Causation in Different Language1.MPC—For causation to attach, the actual result cannot be too remote or accidentalin its occurrence to have a just bearing on the actor’s liability or on the gravity of his offense2.CL—A cause must be natural and foreseeablea)“Not too remote or accidental” equals “natural and foreseeable”b)If a cause is natural and foreseeable/not too remote or accidental, it is a dependent cause and won’t cut off culpability
7c)At CL, the cause must be described as a substantial factor in the harm or result. If not, the cause is a de minimis (minimal) factor C.Causation is only an element where a crime requires a harm or resultVI.ComplicityA.Definition—Complicity is a combination of theories under which various parties can be culpable for the same crimeB.No distinction between CL and MPC regarding complicity. However, the CL and the modernapproaches to complicity differ.C.CL Classifications of Parties to a Crime: 1.P1—Principal in the first degree (perpetrator of the crime, ex. the one who pulls the trigger)2.P2—Principal in the second degree (defendant was actively/constructively present and aided/abetted the crime)3.AB—Accessory before the fact (one who assists prior to perpetration but is not present at the perpetration of the crime, ex. one who provides a gun to perpetrators)4.AA—Accessory after the fact (one who has no involvement in the perpetration of the actual crime, but knows crime has occurred and gives aid or assistance in helping a perpetrator to escape detection or capture)a)Under CL, if P1 was absent, deceased, etc. and not convicted, P2, AB, and AA could not be convictedD.Modern Classifications of Parties to a Crime:1.Principals: Combines CL’s P1, P2, and ABa)P1, P2, and AB are all principals and culpable for the same crime under differenttheoriesb)P1, P2, and AB can be convicted independently of the others (ex. AB can be convicted even if P1 is not convicted), in contrast to the common law2.Accessories after the fact: this is a separate crime and a standalone offenseE.An accomplice must:1.Aid in crime in some way (actus reus)2.Intend to help (mens rea)F.Scope of Liability1.A person can be an accomplice in a crime which they, by definition, cannot personally commit2.A person who is an accessory to one crime is not necessarily culpable for subsequent crimes another person commitsG.Mens rea distinguishes an accomplice from a mere facilitator1.Mere facilitators and accomplices have the same actus reus. The State must prove mens rea circumstantially2.Mere facilitator—One who has no requisite intent to help commit a crime, but helped commit it nonetheless (ex. a person who loans their gun to a neighbor for hunting, and the neighbor uses the gun to kill someone)H.The quality of an accomplice’s help is immaterialI.Innocent instrumentality—Someone involved in the perpetration of a crime unknowingly is not guilty, but the person who used the innocent person is culpable
8(ex. a small child trained to shoplift would be an innocent instrumentality, and not culpable; the adult who trained the child would be culpable)J.Mere presence is NOT perpetration and does not equate to being an accomplice1.Exception—Presence can be sufficient when it is designed to discourage others from intervening; when the presence has a function designed to help a crime occur (ex. standing in the way of potential aid when a fight is occurring)VII.AttemptA.Definition—Attempt is an incomplete substantive crime, or an effort to perpetrate a substantive offense that falls shortB.Types of Attempts1.Incomplete Attempt—The actor has not done everything necessary to bring about the harm or result2.Complete Attempt—The actor has done everything necessary to bring about the harm or result, but failedC.Attempt—Mens Rea1.Attempts require specific intent—the actor must intend the underlying substantive offense2.Accidents do not qualify—you can’t intentionally do something accidentally3.An attempt requires the same intent as the underlying crime4.There is no attempt possible for strict liability crimes (no mens rea)D.Attempt—Actus Reus1.The actus reus is an overt act directed at the commission of the crime (encompasses all acts required to complete the crime)2.Mere preparation to commit a crime is notperpetration of the crime3.What is the potentially lawful thing the defendant could have been attempting? Unless defendant acted in a way that was clearly not innocent, the accuser has no case E.Attempt—MPC v. CL1.MPC—An attempt is complete when a person takes a substantial steptoward the commission of the crime2.CL—CL uses a variety of proximity tests, which allow a potential perpetrators to prepare for a crime until the last minute or the last acta)“Mere preparation” is not an attempt under the common lawF.Inchoate crime—An incomplete crime, short of a substantive (i.e., completed) offense1.Inchoate crimes include attempts, conspiracy, and solicitation2.Attempts always merge with their completed offenses, so they cannot be punished separately from the complete offense3.One cannot attempt a crime that does not require a mens rea.4.One cannot attempt a crime if there is no crime.G.Abandonment as an Affirmative Defense1.In an affirmative defense, a defendant agrees that elements of a crime are met, but gives a reason why his actions should be excuseda)Affirmative defenses require an actual crime to occurb)Defendant has the burden of proof2.Under the common law, abandonment was not a defense to attempt
9a)At CL, after an attempt is complete, there is no backing out to negate culpability3.Under the MPC, abandonment is an affirmative defense to attempt if the circumstances manifest a complete and voluntaryrenunciation of the actor’s criminal purposea)Under the MPC, culpability is attached early based on a “substantial step,” but a person could abandon the crime and be free from culpabilityb)Criteria for the affirmative defense of abandonment under the MPC:(1)The abandonment must be complete (not postponing the crime until a later time, etc.)(2)The abandonment must be voluntary (prompted internally rather than externally)c)The affirmative defense of abandonment can be used under the MPC until the consummation of the offense4.For our purposes, abandonment, renunciation, and withdrawal are synonymousH.Impossibility1.Factual Impossibility—Attendant circumstances make it impossible for the perpetrator to commit the crime they intend to commit (ex. a pickpocket tries to pick an empty pocket)a)Factual impossibility is not a defense under eitherthe common law or MPC2.Legal Impossibility—Completion of a volitional action toward something that is not a crime with the intent to commit a crimea)Not a defense under the MPC, but legal impossibility wasa defense under CL3.The MPC’s approach to impossibility is the modern approach, which allows for culpability for attempts even when there is legal or factual impossibilitya)If the requisite mens rea is met, the possibility of consummation is immaterialb)Intent crimes can still occur, even if they’re impossibleVIII.ConspiracyA.Definition—Conspiracy is an agreement to commit a crime, not the substantive offense itself1.Actus reus—Conspiracy’s actus reus is the agreementa)The scope of the agreement = the scope of the conspiracy(1)All parties do not necessarily agree to the same scopeb)Every detail does not have to be agreed upon. Parties must agree on the essential nature of the undertakingc)Agreement is usually proved circumstantially. In the absence of an explicit agreement, tacit agreement must be extracted based on conduct d)Some jurisdictions require an overt act as well as an agreement
10(1)An overt act is an action in furtherance of the criminal agreement; and doesn’t have to be criminal; overt acts show advancement of the criminal objective(2)An overt act takes place after the agreement, while “mere preparation” takes place before the agreement2.Mens rea—Conspiracy is a specific intent crime requiring two elements:a)The intent to agreeb)The intent to commit the underlying crime(1)Conspirators do not have to be aware of all the details to agree to accomplish some criminal aim(2)Intent is proved circumstantially → the intent necessary for the substantive crime is required(3)Mere presence and/or mere knowledge are not enough to prove conspiracy. The actor must benefit from the conspiracyB.Once an agreement is entered, the agreement abides until:1.All the conspirators abandon the agreement, or 2.The object of the agreement is accomplishedC.Types of Conspiracies1.Unilateral Conspiracy (MPC jurisdictions)—Unilateral conspiracies are “one-directional;” only one person in the agreement must intend for the crime to occur (ex. a person who conspires with an undercover police officer to murder, and the officer has no intent to proceed with the crime)a)Entrapment is more likely in a unilateral jurisdiction2.Bilateral conspiracy (CL jurisdictions)—Bilateral conspiracies require that both parties actually intend that the crime be committed3.Wheel and Chain Conspiraciesa)Wheel Conspiracy—Wheel conspiracies involve some centralizing figure or principle (the “hub”) employs dedicated persons or groups of people (“spokes”) in furtherance of the hub’s operation (e.g., a crime group (the hub) with multiple dedicated groups (the spokes) for money laundering, drugs, prostitution, etc.b)Chain Conspiracy—Chain conspiracies involve parties linked together in a linear fashion (e.g., a drug operation with multiple parties who fill different roles)D.Wharton’s Rule—Conspiracy is not a valid charge for substantive crimes that require the participation of two people because it is proven that the two perpetrators agreed to commit the crime1.Basis for Wharton’s Rule: The statute contemplates two people’s agreement to commit the crime, so the harm of the agreement is already addressed by the statute2.Wharton’s Rule only applies with the statutory minimum number (2). An introduction of a third party to an agreement negates Wharton’s Rule; then, parties could be charged with complicityE.Pinkerton Liability—A co-conspirator is culpable for the foreseeable substantive crimes committed by his fellows if the substantive crimes are committed in furtherance of the conspiracy
111.Co-conspirators are agents of one another2.Pinkerton Liability is a legal fiction: the criminal intent to commit a substantive offense actually committed by another is manifested and satisfied by entering into the conspiracyF.The actions of co-conspirators are imputed to all other co-conspiratorsG.Co-Conspirator Hearsay Exception—A co-conspirator statement is admissible against his fellows in spite of hearsay rulesH.Merger of Conspiracy and Substantive Offenses1.CL—At CL, a defendant could be punished for both the conspiracy and substantive offense because a separate harm was associated with the agreement itself2.MPC—If the scope of the agreement and scope of substantive harm are the same, then the two mergeI.Conspiracy is punishable because:1.Abandonment is less likely when agreement has occurred2.When criminals consort with one another regarding criminal enterprises, criminals become more skillful3.A societal danger is associated with conspiracyJ.Defense of Withdrawal1.Standards for Withdrawala)One standard (there are several standards for withdrawal) requires the defendant to (1) tell authorities/co-conspirators about the withdrawal and (2) thwart the object of the conspiracyb)MPC requires the withdrawing party to (1) communicate the withdrawal and (2) thwart the conspiracy2.The defense of withdrawal requires defendant to first acknowledge his involvement in the conspiracy3.A person can withdraw and then negate the withdrawal by re-engaging4.Withdrawal cuts off Pinkerton liability going forward (after the withdrawal)IX.SolicitationA.Definition—Solicitation is a criminal attempt to conspire. It occurs when a person commands, requests, hires, or encourages another to commit an offense with a specific intent that another agree to commit the crimeB.The person solicited does not have to accept—solicitation is complete when the request is madeC.The societal harm is supplying another with a motive to commit a crime they would not otherwise haveD.Factual impossibility is not a defense, but renunciation is generally a defense where the solicitor persuaded the other person not to commit the crime or otherwise prevented the crime’s commissionE.Solicitation is a basis for accomplice liability, and solicitations merge into attempts, conspiracies, and completed offensesF.Solicitation is a common law misdemeanorX.HomicideA.Homicide Generally
121.Criminal homicide is the the unlawful killing of a human being by another human being that is not justified or excused2.“Human being” defined: a)Shooting a dead body does not qualifyb)At common law, an infant had to be (1) born and (2) alive for homicide to be criminalc)Under the MPC, an infant must be born and alive; a fetus is specifically exemptB.Common Law Homicide Classifications1.CL Murder—Murder is the unlawful killing of a human being with malice aforethoughta)Four Categories of Malice Aforethought:(1)Intention to cause death/serious bodily injury(2)Acting with knowledge that death/serious bodily injury will result(3)Felony murder(4)Depraved heart murder—Committed recklessly under circumstances manifesting extreme indifference to the value of human life2.First Degree Durder—A premeditated, intentional killing is first degree murder. Established by showing (Categories):a)Willful, deliberate, premeditated killing of a human beingb)Felony murder (sometimes; felony murders can be first or second degree. Only first degree if a statute specifies)c)Heinous murders such as poisoning or “lying in wait” (ambush)3.Second Degree Murder—[Catch-all offense]An intentional killing that is not first degree and is not mitigated to voluntary manslaughter is second degree murder. Categories:a)Serious bodily injury murder (serious bodily injury intended, killing results) b)Felony murder not specified as 1st degree by statute (felony murders are second degree murders by default unless the statute specifies otherwise)c)Depraved heart murder—Committed recklessly under circumstances manifesting extreme indifference to the value of human life4.CL Manslaughter: Common law manslaughter is the unlawful killing of a human being without malice aforethoughta)Voluntary or involuntary manslaughter can be committed in the heat of passion, impulse, or rashly5.Voluntary Manslaughter—Voluntary manslaughter is an intentionalkilling (that would be murder) but is mitigated because of either:a)Provocation or heat of passion defensesb)Imperfect defenses6.Involuntary Manslaughter—[Catch-all for unintentional killings] Involuntary manslaughter is an unintentionalkillinga)Types of Involuntary Manslaughter:
13(1)Unlawful act—Homicides that occur during the commission of an unlawful act that is not intended to cause serious bodily injury (2)Lawful act—Homicides that occur as a consequence of gross or culpable negligence while doing a lawful act where a duty was neglected or improperly performedb)MPC v. CL Mens Rea Requirements for Involuntary Manslaughter(1)CL requires criminal negligence—The actor knew or should have known that there was a substantial (serious) and unjustifiable (no excuse) risk of harm(a)Aggravated negligence, gross negligence, and criminal negligence are synonymous(b)A minority of common law jurisdictions impose culpability based on simple negligence, but this is an exception(c)Criminal negligence is a step above simple negligence and a step below recklessness(d)The difference between recklessness and gross negligence is conscious disregard(2)MPC requires recklessness for manslaughterC.MPC Homicide Classifications (No degrees of homicide)1.Murder—For the most part, first and second degree murder under the common law equal MPC murder. Felony murders are just “murder” under the MPCa)Criminal homicide is murder when:(1)It is committed purposely or knowingly, OR(2)[Depraved heart murder] It is committed recklessly under circumstances manifesting extreme indifference to the value of human life(3)[Felony murder under MPC] Such recklessness and indifference are presumed if the actor is engaged in or an accomplice in the commission of, or an attempt to commit, or flight after committing or attempting to commit robbery, rape or deviate sexual intercourse by force or threat of force, arson, burglary, kidnapping or felonious escape(a)Killings committed under these circumstances are essentially felony murders under the common law2.Manslaughter—Requires recklessness as a mens rea; For the most part, voluntary and involuntary manslaughter under the common law equal MPC manslaughter3.Negligent Homicide—Simply a negligent killinga)Negligent homicide under the MPC requires a mens rea of simple negligenceb)There is no common law classification for a simply negligent killingD.Felony Murder
141.Participation in an inherently dangerous felony establishes malice aforethought.2.Felony murder is a legal fiction—there is no intent to kill (mens rea). Felony murders are accidents. Mens rea in felony murder is proven by substituting the intent to kill with the intent to engage in an inherently dangerous felony3.Unless a statute enumerates felony murders as first degree murder, the default classification of felony murder is second degree murder4.A person must be convicted of the underlying felony in order to be held liable for felony murder5.The underlying felony must be inherently dangerous, independent of the homicide and an intentional act of violence that results in the victim's death (i.e. robbery, rape, etc.)6.Two Approaches to Felony Murder:a)Agency Approach (majority)—Defendant is responsible for homicides that occur during the commission of a crime as long as defendant or his co-conspirator does the killing (they are agents of one another)b)Proximate Cause Approach (minority approach, broader than agency approach)—Defendant is responsible for any homicides that occur during the commission of a crime, regardless of who killed the person(1)E.g., during a robbery, a store owner shoots a perpetrator’s partner. The perpetrator would be liable for felony murderE.Misdemeanor Manslaughter—Under common law, if death occurred during the commission of a misdemeanor, it was misdemeanor manslaughterF.Premeditation1.Premeditation is the line of demarcation between first and second degree murder in the traditional sense of a wilful, deliberate, premeditated killing2.Actual reflection determines whether premeditation is present3.Premeditation is proved circumstantially, and passage of time can be evidence4.Proofs of premeditationa)Planningb)Motive to killc)Preconceived design of killing (e.g., a trap)G.Mitigation (From Murder to Manslaughter at CL)1.Heat of Passiona)Heat of passion requires adequate provocation, which requires more than mere words or mere angerb)Elements of adequate provocation: (1)A reasonable person would have been inflamed to the extent that they wouldn’t reflect; (2)Defendant was inflamed to the extent that he did not reflect; (3)A reasonable person would not have cooled off; and(4)Defendant did not cool off.2.Imperfect Defenses
15a)Defenses usually have a reasonable person requirement and subjective requirement. If only the subjective requirement is met, it is an imperfect defenseb)Self defense requires both:(1)A reasonable belief that a person is in imminent danger(2)A subjective/personal belief that a person is in imminent dangerH.Murder Charges1.A defendant can be charged with multiple theories of murder for the same killing, but can only be sentenced/punished under one2.Defendant can’t be punished twice for the same offenseXI.BatteryA.Definition—Battery is an unlawful application of force resulting in either (1) bodily injury or (2) offensive touchingB.Types of Battery1.Bodily injury battery—An unlawful application of force resulting in physical pain, illness, or impairmenta)“Recklessly” is the lowest mens rea for serious bodily injury battery under the MPC2.Offensive touching battery—An unlawful application of force resulting in touching that is objectively offensivea)For offensive touching battery, the touching must be objectively offensive, meaning that the reasonable person would be offended by the type of touching that occurred (ex. spitting or unwanted sexual contact)b)An indirect application of force by a substance put in motion by the defendant with the intent to make contact can be a battery (e.g., a laser)c)Exposure to a life threatening disease (such as HIV) is a batteryC.Degrees of Battery1.Simple Batterya)Simple battery is usually a misdemeanor2.Aggravated Batterya)Aggravated battery is a felonyb)Aggravators for Battery and Assault:(1)Result of “serious bodily injury” instead of “mere bodily injury”(2)Use of a deadly or dangerous weapon(3)Mental state for a violent felony crime (e.g. the intent to kill or rob)(4)Victim was a member of a specified class (e.g. law enforcement officers, elderly people, and children)D.Mens Rea1.Battery does not have an intent requirement—the application of force can be intentional or unintentional. The mens rea for an unintentional application of force is:
16a)CL—criminal negligenceb)MPC equivalent to CL—Recklessness ora malum in se offense where defendant accidentally hits someone during the commission of the offense E.Maiming (known as mayhem under CL)1.Maiming is a felony and an aggravated form of battery that is classified based on harm, not intent. Maiming requires:a)Dismemberment (common law, cutting something off);b)Disablement (common law, something is broken or impaired so it ceases to function correctly); orc)Disfigurement (modern type of maiming)2.The baseline minimum harm for maiming is greater than for aggravated battery3.Under the MPC, maiming is covered by serious bodily injury battery and has no heightened punishment (unlike common law, where maiming is punished to a greater degree than battery)F.Consent is not typically a valid defense for crimes resulting in bodily injury, with some exceptions for competitive sports and medical proceduresG.Parental Discipline Defense to Battery—Force applied to a minor child by a parental figure for the benefit of the child is a defenseH.Domestic Violence1.Domestic violence is aggravated assault and battery2.The heightened vulnerability of the victims leads to a heightened concern3.Many jurisdictions have statutes addressing assault and battery in domestic or relationship circumstances4.Battered Spouse Syndromea)Battered spouse syndrome can be a complete defense.b)Defendant must show a continuous cycle of tension-acute battery-reconciliation that keeps repeatingc)Expert testimony is required to prove battered spouse syndromed)If a jurisdiction accepts the battered spouse syndrome, this is a perfect defense.I.Hate Crimes/Civil Rights1.Statutes have been promulgated to deal with hate crimes, which are motivated based on the immutable characteristics of the victims2.Hate crimes are aggravated crimes (specific intent)XII.AssaultA.Definition—Assault is essentially a prelude to batteryB.Types of Assault1.Attempted Battery Assault—Attempt to batter someone with the intent to commit a battery and an overt act toward committing a battery (classical elements of attempt apply here):a)Mens Rea—Requires intent to complete the batteryb)Actus Reus—An overt act directed at the commission of the crime; determined by either a CL proximity test or MPC “substantial step,”
17depending on the jurisdiction. Either way, it must be an attempt at battery that fails(1)The actor musthave either the actual or apparent ability to complete the battery(2)Different jurisdictions require one or the other(3)Actual and present ability are the same thing2.Frightening Assault—Frightening assault occurs when a defendant intentionally creates a reasonable apprehension of imminent bodily harma)Mens Rea—Specific intentb)Two Models for Determining Frightening Assault:(1)Attempt Model (minority)—Defendant tries to create an reasonable apprehension of imminent bodily harm, whether or not the attempt was successful (this would apply even if the intended victim was not aware of the attempt)(2)Result Model (majority)—If the victim does not have a reasonable apprehension of imminent bodily harm, there is no assault (a)There is no frightening assault if the person isn’t aware (b)If there is fear, the fear must be reasonableC.Degrees of Assault1.Simple Assaulta)The same aggravators for battery also apply to assault, elevating the misdemeanor of simple assault to a felony:(1)Result of “serious bodily injury” instead of “mere bodily injury”(2)Use of a deadly or dangerous weapon(3)Mental state for a violent felony crime, the intent to kill or rob(4)The fact that the victim was a member of a specified class, such as law enforcement officers, elderly people, and children2.Aggravated Assault—A simple assault that is elevated to a felony by one of the above aggravatorsD.Transferred intent applies to assault and batteryXIII.Reckless EndangermentA.Elements:1.Conduct is targeted at another person2.Conduct places another person in fear of death/serious bodily injury3.Conduct is recklessB.Reckless endangerment bridges the gap between assault and battery crimesC.MPC Definition—A person commits a misdemeanorif he recklesslyengages in conduct which places or may place a person in danger of death or serious bodily injury. Recklessness and danger shall be presumed where a person knowingly points a firearm at or in the direction of another, whether or not the actor believes the firearm to be loaded D.Reckless endangerment is a general intent crime—no specific intent to bring about some result is required
18XIV.StalkingA.Stalking Elements—Any person who purposefully engages in a course of conduct directed at a specific person and knows or should know that the course of conduct would cause a reasonable person to: 1.Fear for his or her safety or the safety of a third person; or2.Suffer other emotional distress B.Types of Prohibited Conduct1.Maintaining a visual or physical proximity to a person2.Conveyance of threats that may be oral, written, or implied by conductC.Purpose behind stalking crime: the stalking crime is a codification of the community interest in preventing unfortunate actions toward victims before they happen1.There was no stalking crime in the common lawD.If a reasonable person would be concerned for his safety, a stalking crime is committedXV.Rape and Sexual AssaultA.Common Law Rape1.CL Rape—Rape is the unlawful carnal knowledge of a woman by a man who is not her husband without effective consenta)CL required lack of consent and resistance2.Any degree of penetration is sufficient to qualify as rape under common law3.Under common law, a man could not be raped, and there was no marital rape exemption; however, a husband could still be culpable for the rape of his spouse by aiding/abetting another person4.At trial, to prove that the intercourse was nonconsensual, common law required that the complainant (1) be tested at trial regarding her chastity or sexual reputation; and (2) resisted the defendant “to the utmost”5.Common law allowed the defendant to argue that the victim consented because she did not resist if there was no indication of abuse6.At common law, rape was a general intent crime, meaning that the party simply has to intend the penetration. If there was a lack of effective consent, that was an attendant circumstance under common law7.At common law, rape included sexual intercourse with a person who was asleep, unconscious, or drugged (because victim is incapable of consenting or resisting)a)Some people are physically or mentally impaired/limited, so that courts would say they are unable to consent or resist8.This class does not distinguish between common law and MPC, but will distinguish between the common law and modern approachesB.Modern Approaches to Rape 1.All states have abandoned the marital rape exemption, and most have redefined rape to be gender neutral2.While “carnal knowledge” at common law was “traditional” sex, the modern approach expanded rape to include oral sex and anal penetration, etc.3.The US Supreme Court determined that the death penalty for rape is unconstitutional as violating the 8th Amendment prohibition against cruel and unusual punishment
19C.Elements1.Fear—In the case of rape, fear of immediate bodily injury must be reasonable (objective) and genuine (subjective)a)Fear is proven circumstantially (objectively) and subjectively (ex. by victim’s testimony or behavior that demonstrates fear)2.Force—Force must be sufficient to overcome a person’s will to resist a)Could include psychological pressureb)Some jurisdictions hold that penetration itself meets force requirementc)Some courts remove force requirement altogetherd)The majority of jurisdictions say that sex acts which are consensually begun become rape if one party withdraws consent and the other party forcibly continues. If continuance occurs through force or fear, it is rape3.Lack of Consenta)Some jurisdictions define lack of consent as an absence of affirmative agreement, which places the burden on the defendant to prove an agreementb)Some states have done away with the lack of consent and resistance requirements(1)Many states accept verbal resistance which, if present, negates consent so the intercourse is nonconsensual and qualifies as rape(2)Under the modern approach, resistance can be proven through words or actions or some objective manifestation of unwillingnessc)Some consent is not considered effective, such as when the complainant is in a substantially different position than the perpetrator (carries the imprimatur of some coercion, ex. an inmate and correctional officer)D.Types of Fraud (Under CL/MPC)1.Fraud in the Fact—A person consents to something other than the sex act, and because of some deception, the person is involved in the sex act without their prior knowledge or consenta)Intercourse resulting from fraud in the fact is rape 2.Fraud in the Inducement—A person is misled in some way about something other than intercourse causing them to agree to sexual conduct, but they are not misled about the act itselfa)Intercourse resulting from fraud in the inducement is not a rape crime, and not a crime because they consented to the conduct complained ofE.Statutory Rape1.All states criminalize sexual behavior with individuals below “the age of consent”2.At common law, the age of consent was 10 years old
203.If a person was under 10 years old, they were legally incapable of consenting to a sex act4.This was a strict liability offense, with no defenses—this is rape by definition, because the minor is incapable of consenting5.Modern statutes tend to raise the age of consent and are gender-neutral F.“Romeo and Juliet” Statutes—At CL/MPC, persons below the statutory minimum age who are 4 years apart or less can have sexual contact (2 years in Alabama)1.Intended to accommodate an obvious and acceptable social norm that young people within a certain range can date G.Defenses1.Mistake of fact as to consent is a potential defense to rape when it negates the mens rea under the MPCa)MPC requires recklessness or negligence regarding consentb)The majority of courts recognize a mistake of fact as to consent as a defense when the mistake was honest and reasonable (common law and MPC)c)Mistake of fact is not a defense to a general intent crime (at CL, rape was a general intent crime)2.Reasonable Mistake of Fact as to Age—Not a defense at common law because rape is a general intent crime. In a minority of states, a mistake of fact defense was allowed if reasonable3.Consent—Consent is always a defense to rape, even if not specified by statutea)If a person has a reasonable belief that the complainant had the capacity to consent, this is a potential defense to rapeb)If the victim is unconscious or sufficiently intoxicated, consent is not a defense because victim is incapable of consenting H.Rape Trauma Syndrome1.Some responses to rape trauma syndrome may be imperceptible to others (ex. depression, lack of communication, etc.)2.Generally, experts in this area do not get to talk about the specific defendant and complainant or comment on ultimate issues of fact/veracity of defendant and complainant; they are allowed to talk about rape trauma syndrome generallyI.Sexual Assault—Sexual assault is a special kind of battery (sexual contact that doesn’t rise to the level of rape)XVI.KidnappingA.Definition (CL)—Kidnapping is the forcible asportation of a victim or confinement of a victim in a secret placeB.Under modern approaches, kidnapping requires forcible asportation of a victim (e.g., abduction, taking, transportation) or confinement (e.g., holding, restraining, detaining, seizing, imprisoning) of a victim in a secret place.C.Kidnapping is a general intent crime—one must have the intent to cause a person to moveD.Asportation (Movement)1.The great majority of jurisdictions do not recognize a kidnapping offense if the movement is merely incidental to another offense. However, if the
21movement is incidental to another crime, it is sufficient if it increases the risk of harm to the victim.a)E.g., a defendant steals a car with an infant in the backseat. She hasb)increased the risk of harm to the victim, so she can be charged with kidnapping and with stealing the car2.Some jurisdictions hold that any movement is sufficient while others require substantial movement3.Asportation is movement, and most jurisdictions do not recognize movement incidental to another crime (ex. a battery that knocks someone down)E.Force1.The force can be actual or threatened force that causes a person to move against their will2.The purpose of the force or threat is to move the person3.In some jurisdictions, kidnapping can also be accomplished by fraud or deceptionF.Kidnapping can be aggravated based on certain factors, such as motive (ex. holding a victim for ransom) or kidnapping a member of a protected class of persons (ex. someone with a disability)G.Some jurisdictions allow for mitigation (lessening of potential punishment) if the victim is released unharmedXVII.Property CrimesA.Larceny—Larceny is the trespassory taking and carrying away of personal property of another with intent to steal1.At common law, larceny involved a taking of personal property (could not be land, real estate, or something affixed to land). Most modern statutes and the MPC define property more broadly as anything of value, including contract rights, electricity, etc.2.“Trespassory” means without consent3.“Taking” means to obtain actual control over property4.Destruction or moving property alone is not taking control5.A temporary taking without permission that turns into stealing is a continuing trespass. Larceny is accomplished when you decide to keep it6.Lost property is still in the constructive possession of the owner, so it can be stolen, or the object of a larceny7.Abandoned property is not in the possession of the owner, so it can’t be stolena)The difference between abandoned property and lost property is intent: the owner intends dispossession in the case of abandoned property8.Misdelivered property can become the subject of larceny if the recipient realizes the mistake, has the intent to steal, and keeps it9.The slightest change of position with the intent to steal is sufficient for larceny10.Borrowing without permission is a trespassory taking, which is a lesser crime than larceny with no intent to steal11.However, taking property in order to “sell it back” to the owner is larceny12. Intent
22a)Intent to steal is the intent to permanently deprive the owner of the propertyb)If the taker honestly believes that property belongs to them, and has no intent to steal, it isn’t larceny13.Larceny By Trick—Involves telling a lie with the intent to steal to obtain possession with the owner’s consent. The defendant has possession only, notownership. a)Larceny by trick has the same elements as larceny, but no trespassory taking since the owner’s consent is received through deception14.Theft By False Pretenses—Theft by false pretenses involves transfer of ownership or title via fraud or deception—the taking is consensual based on fraud or deceptiona)Defendant made a false representation with the specific intention to defraud the owner of property and the owner relied on the misrepresentationb)Transfer of ownership/titleis the difference between larceny by trick and theft by false pretensesB.Embezzlement—Embezzlement is the fraudulent conversion of the property of another by a person in lawful possession of that property because he has been entrusted with it1.The difference larceny and embezzlement is entrustment2.Embezzlement is larceny from a position of trust3.Property comes into the possession of the embezzler lawfully, but the conversion is unlawfula)Conversion—Conversion is dealing with property in a manner inconsistent with the trust arrangementC.Receiving Stolen Property—Receiving possession and control of stolen personal property known to have been obtained by criminal means by another person with the intent to permanently deprive the owner 1.Possession can be actual or constructive2.Mere proximity is not possession3.Constructive possession is proven circumstantiallyD.Robbery—The taking of personal property from the person or presence of another by force or intimidation with the intent to permanently deprive the owner1.The force must be sufficient to overcome resistance2.If there is a threat (intimidation), the threat must be a threat of immediate death or serious bodily injury to the person, a family member, or another person present at the timea)A threat to destroy property is usually insufficient, unless it’s your dwelling (common law)3.Robbery can be aggravated, usually by the use of a weapon4.Force or intimidation distinguishes robbery from larceny (force of immediate death or serious bodily injury, must be sufficient to overcome resistance)E.Burglary—Breaking and entering a dwelling place at night with the intent to commit a felony therein
231.Burglary is a specific intent crime requiring requisite intent at the time of entry2.The breaking and entering (actus reus) and intent to commit a felony inside (mens rea) must concur3.In most jurisdictions, the nighttime requirement and dwelling requirement have been waived4.“Breaking” is the use of force to effect an entry, not an exit5.“Entering” does not necessarily mean going into a structure with one’s entire body—a hand, any part of the body, or an object put through a window or door can effect an entry6.At common law, a dwelling included any place a person usually sleeps and sub-portions of that place (ex. a garage affixed to a dwelling)a)There are different statutory definitions today7.At common law, things not attached to sleeping quarters did not apply, and some types of dwellings (like a car someone lives in) didn’t countF.Carjacking1.Carjacking is a specific type of robbery that is aggravated due to the heightened safety concerns2.If one is a lawful occupant of a vehicle, he can use as much force as is necessary, including deadly force, to stop a carjackinga)This is an exception to the rule that deadly force cannot be used to protect personal propertyG.Arson—Malicious burning of the dwelling place of another1.“Malicious” means some evil intent to harm a person or property or reckless disregard for the hazard of causing harm to a person or their property2.Simple accident or negligence is not sufficient3.Arson must involve “burning,” which concerns a fire; an explosion is not sufficient4.Arson requires a general intent to set the fire; there must be malice, but a specific intent to harm a person or set fire to a structure is not required5.A “dwelling” can also be other types of buildings or structures6.MPC and common law agree that intoxication can negate an element of arson, but that must be provenXVIII.Justification DefensesA.Generally1.A defendant has a constitutional right to present a complete defense, but no obligation2.Inadmissible evidence places a potential limitation on a defendant’s ability to present defenses3.When it comes to presenting defenses, the government usually has the burden of persuasion, but the defendant has the burden of production4.The defendant must present evidence to support his defenses, which the government must overcome in order to persuade the jury of the defendant’s guilt5.A defendant may present logically inconsistent defenses if there is evidence to support each defense
24B.Justifications v. Excuses1.Justification (conduct is socially acceptable)—The defendant did something good or right under the circumstances (ex. self defense)2.Excuse (conduct is not socially acceptable)—What the defendant did was wrong, but for some reason, he will not be punishedC.Self Defense (CL definition)—A non-aggressor is justified in using force upon another if he reasonably believes such force is necessary to protect himself from imminent use of unlawful force by the other person1.“Imminent” harm is immediate, more than words, and a reasonable person would have to perceive the danger. It does not include a threat of future harm2.Fear alone never justifies force. The threat must be induced by some conduct or overt act on the part of the other person that would lead a reasonable person to believe they are about to suffer serious bodily harm or death3.Proportionalitya)The force used must be proportional to the threat. A non-aggressor who uses excessive force is culpableb)Proportionality is measured by the type of force presented by the aggressor, and there are two categories when measuring proportionality: (1) serious bodily injury or (2) deadly force4.Aggressora)An aggressor is the person who first introduces the threat of an imminent use of force. As a general rule, aggressors cannot assert self-defense as a defense. Exceptions: (1)If a threat of non-deadly force is met with an unreasonable use of deadly force, an aggressor may be able to assert self-defense(2)Also, an aggressor can recover the right to self-defense if the aggressor withdraws and the other person continues to use force, becoming the aggressor5.Reasonable and Subjective Beliefa)A perfect defense of self-defense/defense of others is justified (defendant goes home)b)A defense of self-defense could be imperfect in two ways: (1)The defendant honestly (subjectively) believed there was an imminent threat of bodily harm, but there was no objective/reasonable belief; or (2)force was justified, but the force used was excessivec)At CL, self defense requires a both reasonable and subjective belief that there is some imminent threat of harm—risk to one’s life or serious bodily injury(1)If mistaken, there is still a potential defense of mitigation—imperfect self defensed)Imperfect self defense requires only a subjective belief that there is some imminent threat of harm, which mitigates from murder to manslaughter
25e)MPC v. common law—Under the MPC, reasonable fear is not necessary. A person must only have a subjective belief that there is an imminent threat of force6.Duty to Retreata)If a safe retreat is possible, deadly force is not objectively necessaryb)Courts differ on requiring a duty to retreat, but most do not require retreatc)The MPC requires retreat if a person can do so in complete safety, while the common law generally did not require retreat7.Castle doctrine—A duty to retreat does not apply in one’s home, and many modern jurisdictions have also applied the castle doctrine to one’s workplace8.Law Enforcementa)At common law, police officers could not use more force than necessary to effect an arrest. If they did, citizens could resist with deadly force if they reasonably believed there was a risk of serious bodily harm or deathb)Modern courts do not allow the use of force against police officers who are making an arrestc)MPC states that citizens are not justified in using force to resist a police officer, even in the case of an unlawful arrestD.Defense of Others—Defense of others works like self defense: the actor “steps into the other person’s shoes” to use the same force that person would be justified in using1.CL required a reasonable belief regarding the imminence of the threat, while the MPC only requires a subjective beliefE.Defense of Property or Dwelling—A person can use reasonable force to eject a trespasser.1.One does not have to have a possessory interest to defend a dwelling; she must only have a right to be there2.If more than reasonable force is used, the force is battery or assault, depending on the jurisdiction3.The government discourages self-help; if one is dispossessed of his property, he is supposed to contact the authoritiesa)Exception for “fresh pursuit:” if property has been taken from a person’s presence, and the perpetrator has not escaped, the owner can use force to retrieve his property4.Deadly force cannot be used to protect personal property. Exception: deadly force can be used in defense of a dwelling, and in the case of a carjacking5.Deadly devices—Under common law, traps were permitted (ex. spring guns). The owner could set a trap with the authorized use of force to catch people who were breaking in a)MPC did not allow deadly trapsF.Necessity or Choice of Evils Defense—When one is presented with two bad choices, under the circumstances the actor is justified in his choice between the two, so he will not be punished1.Necessity defenses are usually arise in the context of natural forces/conditions that create an emergency
262.Extent of one’s breaking the law is coterminous with the extent of the danger—illegal activity must be terminated as soon as the danger passes3.The necessity defense is not available when legal alternatives are available4.There must be a connection between the action and emergency5.The actor must choose the least harmful of the two options6.Economic necessity is not enough7.Defendant bears the burden of showing that his action was necessary under the circumstancesG.Fleeing Felons1.At common law, police or private individuals could use deadly force to stop a fleeing felon (under common law, most felons were punishable by death)2.Today, if fleeing felons do not pose a danger, Tennessee v. Garner decided that is is better to catch them another time than to use deadly force to stop themXIX.Excuses A.Entrapment—Inducement of an otherwise innocent person to commit a crime for the purpose of prosecuting them for the crime 1.Elements:a)Government inducement of the crimeb)A lack of predisposition on the part of the defendant to engage in the crime2.Entrapment is an affirmative defense—defendant has burden of proof3.Not a defense at common law4.Two Tests for Entrapment:5.Subjective (majority): Was the person ready and willing to commit the crime apart from the government's inducement? If they were, the defense will not be available to them. Predisposition is the major element6.Objective (minority approach): Was the law enforcement officer’s conduct sufficient to cause a person who normally would avoid committing the crime to commit it? This test analyzes the quality of law enforcement conductB.Duress1.Elements:a)Person must be under an immediate threat of death or serious bodily injuryb)Person has well-grounded fear that the threat will be carried outc)There is no reasonable opportunity to escape2.Duress v. necessity (choice of evils): Duress is usually based on the influence of another person (pressure to commit a crime), while necessity is usually based on natural forces (ex. natural disasters)3.When circumstances become safe, a person must desist the crime he has been committing under duress4.A defendant cannot be excused for killing an innocent person5.Duress is a common law defense6.MPC—The defendant must show “reasonable firmness” and that a person of reasonable firmness would have been compelled to commit the crime under the circumstances
27C.Competency—Due process prohibits criminal prosecution and punishment of a person who’s incompetent to stand trial1.Competence v. Insanity—Competence focuses on a defendant's present ability to understand the proceedings and assist with his defense, while insanity concerns the person’s state of mind when the crime was committed2.The government is allowed to presume the defendant is competent to stand trial3.Type of mental deficit is immaterial—the impactof the deficit is what matters4.Lack of competence must be proven to the court, and defendant has the burden of proof5.In the case of a defendant who is incompetent to stand trial, the government is allowed to civilly commit the person so they can be treated (can include forcible medication) so the defendant can return to competency, stand trial, and potentially go to prisona)The person cannot be detained indefinitely. If they never become competent, they cannot be triedD.Insanity Tests (Two major common law tests):1.M'Naghten Rule—Moral capacity and cognition-based test wherein defendant cannot understand the nature of their action or right and wrong. Elements:a)Defective reason b)caused by a the disease of the mind c)that causes the defendant either:d)not to know the nature and quality of his actions or e)not to know that what he is doing is wrong2.Deific Decree–Satisfies the second half of the M’Naghten Testa)A mental disease/defect resulting from a delusion b)Defendant believes they have a direct command from Godc)Defendant acts on the commandd)The command destroys the defendant’s ability to discern between right and wrong3.Irresistible impulse—A disease or defect of the mind that causes a person to be unable to control their actionsa)Has no bearing on whether a person actually understands what they’re doing; with an irresistible impulse, they cannot control their body4.MPC accepts M’Naghten or Irresistible Impulse Tests alternatively (either/or). There is no real distinction between CL and MPC, just language differences. The insanity test used depends on the jurisdiction, but most jurisdictions allow for either 5.Durham Rule/Product Test—An accused person is not criminally responsible if his conduct was the product of a mental disease or defecta)The Durham Rule allows for both M’Naghten and Irresistible Impulse Testsb)The “act” is the product of a mental disease or defect
28E.Not Guilty By Reason of Insanity—Person is guilty, but excused, and committed. Until they are safe and sane, they are not released into society, and there is no limit on the length of time they will be heldF.Bifurcation—Insanity is not tried at the same time as guilt. In some cases, the information regarding the insanity could be prejudicialG.Diminished Capacity—Some jurisdictions allow evidence of a cognitive abnormality less than insanity to negate a specific mens rea. This is not an excuse, but a factor that mitigates from specific to general intent1.Mental retardation is considered diminished capacityH.Guilty But Mentally Ill—Instead of being excused for a mental illness, a minority of jurisdictions will convict a mentally ill person and put them into treatment. A person held guilty but mentally ill may be punished after they are rehabilitated.1.Normally, after a person declared not guilty due to insanity is rehabilitated, they are not punishedI.Infancy 1.Infancy at Common Lawa)A child under the age of seven is conclusively presumed incapable of committing a crimeb)Between 7-14, there is a rebuttable presumption that the person is incapable of committing a crime (1)The older the child, the weaker the presumptionc)If a person is over 14, he will be treated like an adult who is capable of committing a crime and being punished.d)No death penalty for minors at common law due to less mental capacity and the fact that their personalities are not established2.MPC—A child under 16 is a minor. If a defendant is 16, 17 or 18, there is a rebuttable presumption, and they could be prosecuted under the MPC.