CRiminal Law Harges

Lesser and included offenses (14:5) –

An offender who commits an offense which includes all the elements of other lesser offenses may be prosecuted for and convicted of EITHER the greater offense or one of the lesser/included offenses. Where the offender is prosecuted for the GREATER, he may be convicted of any one of the lesser/included offenses.

Genuine Construction (1st Statutory Text)

Determine what the legislature fairly meant by looking at the ordinary meaning of the words, their context, and the purpose of the statute.

Strict Construction/Rule of Lenity (If Ambiguity Persists)

Requires courts to construe statutes in favor of the accused, and may not by implication cover acts not expressly provided for in the statute.

Overbreadth doctrine

A criminal statute is unconstitutionally overbroad if its text is written so broadly that it proscribes constitutionally protected speech or expression alongside unprotected speech or conduct (such as true threats, obscenity, or incitement). 

Vagueness Doctrine

A criminal statute is unconstitutionally vague if its language is so unclear that an average citizen cannot understand what conduct is prohibited. 

1. Rule of Lenity

Louisiana criminal statutes must be strictly and narrowly construed; any ambiguity in a statutory provision is resolved in favor of the accused and against the State. 

Prosectutorial Discretion

Subject to the supervision of the attorney general, the DA has entire charge and control of every criminal prosecution instituted in his district, and determined whom, when, and how he shall prosecute 

The DA has the discretion to proceed under either general criminal provision or a special one when a defendant’s conduct violates both articles.  The DA has unfettered discretion in deciding in whether or not to prosecute.

After the prosecutor has decided to charge someone the grand jury checks or screens that decision.

Grand jury decides whether there is enough evidence to charge a person with a crime; does not determine guilt

Grand jury serves as a shield against unjust charges/prosecutions

2 elements that MUST be proven beyond a reasonable doubt to prove a crime.

Actus Rea – guilty act; external element of a crime that requires proof of some act, omission, or attendant circumstance.

Mens Rea – guilty mind; mental element of a crime that requires proof that the D acted with criminal intent, recklessness, or criminal negligence.

Criminal Conduct (14:08) – consists of…

1. An act OR failure to act that produces criminal consequences and which is combined with criminal intent; OR 

2. A mere act OR failure to act that produces criminal consequences, where there is no requirement of criminal intent; OR 

3. Criminal negligence that produces criminal consequences. 

Criminal Intent (14:10)

– question of fact, may be proven by direct OR circumstantial evidence, may be specific or general. 

Specific Criminal Intent

Requires proof that the defendant actively desired the criminal consequences of his act.

May be proved by direct evidence or circumstantial evidence

General Criminal Intent

Requires proof that the defendant must have adverted to the prescribed criminal consequences as reasonably certain to result from his act or failure to act.

Offender may be responsible because the jury believes he “must have” turned his mind to the consequences in acting as he did.

In general intent crimes, criminal intent necessary to sustain a conviction is shown by the very doing of the acts which have been declared

Criminal Negligence

Requires proof that the defendant’ conduct was a gross deviation below the standard of care expected to be maintained by a reasonably prudent person.

Defenses are treated

as affirmative defenses (admitting to crime but giving an excuse) and D must raise/prove them by a preponderance of the evidence. 

Defenses that negate an essential element of a crime must be disproved by the State. Multiple defenses can be used at once

Insanity Defense (14:14)

1. Because of a mental disease or defect, he was incapable of distinguishing between right and wrong with reference to the conduct in question

   1. Can be a defense to all crimes

   2. An affirmative defense that the D must prove beyond a preponderance of the evidence

   3. Louisiana presumes D is sane. A statute requiring the accused to bear the burden of proving that he is insane does not violate due process because in LA we assume D is sane.

   4. D’s competency to stand trial is a factual matter for the judge and D’s sanity at the time of the offense was charged is a factual matter for the jury. They are seperate considerations

   5. A criminal D who acts with diminished capacity is not required to use the insanity defense – Not recognized in LA

   6. Can never argue that drugs/alcohol caused a mental disease/defect in insanity

Tests to Prove Insanity

M’Naghten Test (LA): an offender is exempt from criminal responsibility where the circumstances indicate that because of a mental disease or defect, he was incapable of distinguishing between right and wrong with reference to the conduct in question. Irresistible impulse does not constitute insanity.

Intoxication Defense (14:15)

Drugs/alcohol will not negate offense, UNLESS, at the time of the crime

Voluntary Intoxication

1. Circumstances indicate that an intoxicated/drugged condition has precluded the presence of the specific intent/special knowledge required for the commission of a crime

   1. D must prove that due to his intoxication at the time of the act, he did not possess the specific criminal intent or special knowledge required for the commission of the crime

   2. Merely being drunk is not necessarily enough

2. Not allowed in a general intent crime: In a general intent crime, the requisite intent is usually found in the accused's intention to become intoxicated ie. the accused is held to have intended all the consequences of his intoxicated condition

Involuntary Intoxication

defense to any crime as long as it is the direct cause

1. When the D proves that his intoxicated or drugged state was involuntary and the direct cause of the commission of the crime

   1. “Direct Cause” requires more than showing D was involuntarily intoxicated; it must actually have caused the criminal conduct

[14:18 Justification, General provisions]

the fact that an offender’s conduct is justifiable, although otherwise criminal, shall constitute a defense to prosecution for any crime based on that conduct. This defense of justification can be claimed under the following circumstances: Public Duty, Reasonable Arrest, Physical Impossibility, Complusion

Public Duty

when the offender’s conduct is an apparently authorized and reasonable fulfillment of any duties of public office; or

Reasonable arrest

when the offender’s conduct is a reasonable accomplishment of an arrest which is lawful under the Code of Criminal Procedure; or

Authorized by law

when for any reason the offender’s conduct is authorized by law; or

Physical impossibility

when the crime consists of a failure to perform an affirmative duty and the failure to perform is caused by physical impossibility; or

Compulsion

when any crime, except murder, is committed through the compulsion of threats by another of death or great bodily harm, and the offender reasonably believes the person making the threats is present and would immediately carry out the threats if the crime were not committed

If the defendant is charged with first- or second-degree murder, compulsion is not a defense, but if the defendant is charged with manslaughter, vehicular homicide, or criminal negligence, compulsion can be a defense.

Justifiable Homicide (14:20) (1) Self Defense

When committed in self-defense by one who reasonably believes that he is in imminent danger of losing his life or receiving great bodily harm and that the killing is necessary to save himself from that danger.

Justifiable Homicide (14:20) (2) Preventing a violent/forcible felony

When committed for the purpose of preventing a violent or forcible felony involving danger to life or of great bodily harm by one who reasonably believes that such an offense is about to be committed and that such action is necessary for its prevention. The circumstances must be sufficient to excite the fear of a reasonable person that there would be serious danger to his own life or person if he attempted to prevent the felony without the killing.

Justifiable Homicide (14:20) (3) Unlawful force in a dwelling/business

When committed against a person whom one reasonably believes to be likely to use any unlawful force against a person present in a dwelling or a place of business, or when committed against a person whom one reasonably believes is attempting to use any unlawful force against a person present in a motor vehicle as defined in R.S. 32:1(40), while committing or attempting to commit a burglary or robbery of such dwelling, business, or motor vehicle.

(4)(a) When committed by a person lawfully inside a dwelling, a place of business, or a motor vehicle as defined in R.S. 32:1(40) when the conflict began, against a person who is attempting to make an unlawful entry into the dwelling, place of business, or motor vehicle, or who has made an unlawful entry into the dwelling, place of business, or motor vehicle, and the person committing the homicide reasonably believes that the use of deadly force is necessary to prevent the entry or to compel the intruder to leave the dwelling, place of business, or motor vehicle.

Justifiable Homicide Requirements

1. (1) A reasonable belief, D must reasonably believe use of force is; (2) Necessity, apparently necessary to stop the violence being used against him; (3) Proportionality, the amount of force used must be proportional to the amount of force being used by the offender. 

Aggressor Doctrine (14:21)

Aggressor cannot claim self-defense unless he withdraws from the conflict in good faith/in such a manner that his adversary knows his desire to withdraw. 

Self Defense without Death (14:19)

No Duty to Retreat

Force is justified when committed for the purpose of: (1) preventing forcible offense against a person OR (2) preventing a forcible offense of trespass against a property in a person’s lawful possession

Defense of Others (14:22)

It is justifiable to use force/violence/to kill in defense of another when it is reasonably apparent that the person attacked could have justifiably used such means himself AND such intervention was necessary to protect the other person. 

Defense of Property (14:19) When there is little to no threat to the person… 

1. Force or violence is justified to prevent a “forcible offense or trespass against a property in a person’s lawful possession,” so long as force is reasonable/apparently necessary to prevent the offense. 

   1. D is NEVER entitled to use deadly force to protect ONLY personal property. (petty thefts)

Defense of Property (14:19)When there are threats to human life…

1. D may use deadly force against intruder who is committing or attempting to commit a burglary or robbery of a dwelling, business, or car, if D reasonably believes the intruder will use unlawful force against anyone inside.

2. If D is inside a dwelling, place of business, or car, he can use deadly force against a person attempting to make an unlawful entry, or who has made unlawful entry, if D reasonably that use of deadly force is necessary to prevent the entry/compel the intruder to leave. 

Parties Classified (14:23)

All persons concerned in the commission of a crime are principals; but all principals are not equal offenders 

Inchoate

Conspiracy to commit a crime (specific intent); 

Attempt to commit a crime (specific intent);

Solicitation for murder; 

Inciting a felony.

Principals (14:24)

ALL persons concerned in commission of a crime, whether present/absent, and whether they directly commit the act constituting the offense, aid/abet in its commission, or directly/indirectly counsel or procure another to commit the crime are principals. 

Ways to be a principal

Directly commit a crime

Aid and abet in the commission of a crime

Directly or indirectly counsel or procure another to commit a crime

To be convicted as a principal

Must prove that the person knowingly participates in the planning or execution of the crime

State must prove that the defendant had the requisite mental state to commit the offense

Principal - transfer of intent

The specific intent of one principal cannot be imputed to the other

The general intent of one principal can be imputed to the other

Accessory After the Fact (14:15)

General Intent

After the commission of a felony, person harbors/conceals/or aids offender, knowing/having reasonable grounds to believe offender has committed felony, and with intent he may avoid/escape from punishment. 

An accessory after the fact may be tried and punished

notwithstanding the fact that the principal felon may not have been arrested, tried, convicted, or amendable to justice.

Compounding a Felony (14:131)

General Intent

Accepting of anything of apparent present/prospective value which belongs to another, or any promise thereof, by a person having knowledge of the commission of a felony, upon an agreement (expressed or implied) to conceal the offense or not reveal/give evidence. 

Criminal Conspiracy (14:26)

Specific Intent

Agreement/combination of 2+ people for specific purpose of committing any crime, but 1+ of the parties MUST take an overt act in furtherance of the object of the agreement. 

If intended crime has been completed, conspirators may be tried for BOTH conspiracy or the completed offense, or one/the other.

Inciting a Felony (14:28)

GENERAL INTENT 

Endeavor by one or more persons to incite/procure another person to commit a felony. 

Soliciation for Murder (14:28.1)

GENERAL Intent

Intentional solicitation by one person of another to commit/cause to be committed 1st or 2nd degree murder.

Attempt (14:27)

Specific Intent

Essential that there be a specific intent to commit the crime + an overt act. 

Any person who, having a specific intent to commit a crime, does or omits an act for the purpose of and tending directly toward accomplishing of his object is guilty of an attempt to commit the offense intended; and it shall be immaterial whether, under the circumstances, he would have actually accomplished his purpose. 

Attempt is not a distinct crime from the crime intended; a defendant cannot be charged with both attempt and the intended crime.

Homicide (14:29)

killing of a human being by act/procurement/culpable ommission of another.

5 grades of homicide

M1, M2, MS, N.H., V.H.

First Degree Murder 14:30

1. Specific Intent Crime (SI + Agg Circumstances)

The killing of a human being (born alive); AND

When the offender has the specific intent to kill or to inflict great bodily harm; AND

Is engaged in an aggravated circumstance:

Causation

Result

First Degree Murder 14:30 Aggravating Circumstances

During the perpetration or attempted perpetration of a dangerous felony enumerated in (A)(1), such as, among others, aggravated kidnapping, aggravated arson, aggravated raoe, aggravated burglary, and armed robbery

Killing of a fireman or peace officer engaged in the performance of his lawful duties, or with SITK or IGBH is related. Includes DA and certain lab technicians

Also, correctional facility employee who is in the course and scope of his employment

Killing when the offender has the specific intent to kill or to inflict great bodily harm upon more than one person (exist from the moment of conception)

The killing when the offender has offered, has been offered, has given, OR has received anything of value for the killing; AND

When the victim is under the age of 12 or 65/over the age of 65

SITK OR IGBH & D previously killed another with SITK or IGBH (like a serial killer) (has to have specific intent both times)

SITK or IGBH on a duty taxi driver

SITK or IGBH on witness to crime or family member to prevent from testifying

Second Degree Murder 14:30.1

KHB+SI = 1D Felony Murder or KHB + Felony Murder = 2D Felony Murder)

Elements

1. (1)Killing of a human being when the offender has specific intent to kill or to inflict great bodily harm (Cold-blooded murder/premeditated) OR

2. (2)Killing of a human being while engaged in the perpetration or attempted perpetration of one of the dangerous felonies enumerated in subsection (A)(2) of La RS 14:30(1)   - No specific Intent Dispenses with the necessity of proving mens rea because the underlying felony supplies the culpable mental state

3. (3) Causation

4. (4) Result

Second Degree Murder/ First Degree Murder 14:30.1 dangerous felonies

Aggravated rape/first degree rape, forcible/second degree rape, aggravated arson, aggravated burglary, aggravated kidnapping, second-degree kidnapping, aggravated escape, assault by drive-by shooting, armed robbery, first degree robbery, second degree robbery, simple robbery, cruelty to juveniles, second degree cruelty to juveniles, or terrorism

Legal Causation

exists if the act hastened the termination or life, or contributed mediately through indirect agency or immediately without delay to the fatal outcome

Mediately - to act through agency

Felony Murder Doctrine & Causation

1. Killing must be the DIRECT act of D OR an accomplice

Manslaughter (14:31) Heat of Passion

Heat of Passion - homicide which would be murder (M1 or M2), but the offense is committed in sudden passion or heat of blood immediately caused by provocation sufficient to deprive an average person of his self-control and cool reflection

Provocation shall not reduce a homicide to a manslaughter if the jury finds that the offenders blood had actually cooled, or that an average person’s blood would have cooled, at the time the offense was committed

Adequecy of provocation is a question of fact/for the jury

Blood cooling time is a jury question

D has burden of proving these elements

Felony MS

homicide committed without any intent to cause death of GBH

When an offender is engaged in (attempted) perpetration of felony not enumerated in Article 30 or 30.1 or

Misdemeanor MS

homicide committed without any intent to cause death of GBH

When the offender is engaged in the perpetration or attempted perpetration of any intentional misdemeanor directly affecting the person; OR

Resisting Arrest MS

Offender is resisting lawful arrest by means not inherently dangerous and circumstance wouldn't be murder under Article 30/30.1

Proximate Cause Theory

1.  D is liable for any death proximately resulting from unlawful activity, notwithstanding the fact that the killing was by one resisting the crime

Negligent Homicide (14:32) – either of the following…

1. (1) Killing of a human being by criminal negligence

2. (2) Killing of a human being by a dog or other animal when the owner is reckless/criminally negligent in confining/restraining the animal

Criminal Negligence

exists when there is such disregard of the interest of other that the offender’s conduct amounts to a gross deviation below the standard of care expected to be maintained by a reasonably careful man under like circumstances

1. Vehicular Homicide (14:32.1) –either of the following…

1. Killing of a human being cause proximately/directly by offender who is operating/in control of any motor vehicle, aircraft, watercraft, or any other means of conveyance, regardless of if offender had intent to cause death or GBH, whener any of the following conditions exist AND such condiction was a contributing factor to the killing:

   1. Operator is under the influence of alcoholic beverages

   2. Operators BAC is or is greater than 0.08%

   3. Operator os under the influence of CDS

   4. Operator under the influence of alcoholic beverages and fled the scene

Battery (14:33)

(1) Intentional use of force/violence upon the person of another; OR (2) the intentional administration of a poisn/other noxious liquid/substance to another

Aggravated Battery (14:34)

General intent

Battery committed WITH a dangerous weapon

1. itentionally used force or violence upon the victim

2. that the force of violence was infliced with a dangerous weapon

3. that the dangerous weapon was used in a manner likely, or caluculates, toc ause death or great bodily harm

   1. Dangerous weapon need not be inherently dangerous; more important is the manner in which it is used/liklihood it may produce serious injury

   2. Must be an inanimate object

Aggravated Second Degree Battery

Battery committed with a dangerous weapon when the offender inflicts serious bodily injury

Simple Battery (14:35)

General Intent

Battery committed without the victims consent

Second Degree Battery (14:34.1)

Specific Intent

A battery committed without the consent of the victim when the offender intentionally inflicts serious bodily injury

Covers: When the offender commits a battery by seriously injuring the victim without using a dangerous weapon

“Serious bodily injury” = unconsiousness, extreme physical pain or obvious impairment of function of bodily member, organ, or mental faculty, or a substantial risk of death

Assault (14:36)

Specific Intent

(1) An attempt to commit a battery, OR (2) the intentional placing of another in reasonable apprehension of receiving a battery

Assault Elements (14:36) “An attempt to commit a battery”

1. Specific intent to commit a battery and

2. Overt act toward committing a battery

Assault Elements (14:36) “Intentionally placing another in reasonable apprehension of receiving a battery”

1. Intent to scare element (general intent)

2. Conducted by D of the sort to arouse a reasonable apprehension of bodily harm; and 

3. The resulting apprehension of receiving bodily harm on the part of the victim

Aggravated Assault (14:37)

General Intent

assault WITH a dangerous weapon

Simple Assault (14:38)

General Intent 

Assault committed WITHOUT a dangerous weapon

Assault by drive-by shooting (14:37.1)

General Intent

Assault committed with a firearm when the offender uses a motor vehicle to facilitate the shooting

Rape (14:41)

1. General Intent

   1. Act of anal or vaginal sexual intercourse with a male or female person committed without the person's lawful consent

   2. Emission is not necessary, and any sexual penetration, when the rape involves vaginal or anal intercourse, however slight, is sufficient to complete the crime

   3. Oral sexual intercourse means the intentional engaging in any of the following acts with another person:

(i) the touching of the anus or genitals of the victim/offender by the victim/offender using

the mouth or tongue of the offender/victim

1. To establish any grade of rape, the State must prove:

1. (1) Penetration

   1. Testimony of V alone is sufficient to establish this element (and all elements of rape)

   2. ANY penetration, however slight, of the aperture of the female genitalia, even external features

2. (2) General intent

3. (3) Lack of consent

   1. A victim in police custody is incapable of consent when the person under arrest/otherwise in custody of the police officer or any other law enforcement official and the offender is a police officer or other law enforcement officer who either:

      1. (1) Arrested the person/was responsible for maintaining the person in actual custody;

      2. (2) Knows/reasonably should know the person is under arrest

First Degree/Aggravated Rape Lack of Consent

the victim’s lack of consent is based on the victim’s resistance or ability to resist, the number of perpetrators, or the victim’s age.

Lack of consent is found when…

when the victim resists the act to the utmost, but whose resistance is overcome by force in the following ways

(1) the perpetrator threatens the victim with great and immediate bodily harm

(2) the perpetrator is armed with a dangerous weapon

(3) because of the victim’s physical or mental infirmity Physical infirmity = quadriplegic or paraplegic OR Mental infirmity = intelligent quotient of 70 or lower

A rape will also be classified as aggravated if: More than one person participates, OR The victim is 65 years or older or under the age of 13

Second Degree/Forcible Rape (14:42.1)

When the anal, oral, or vaginal sexual intercourse is deemed to be without the lawful consent of the victim because it is committed under any one or more of the following circumstances:

(1) When V is prevented from resisting the act by force OR threats of physical violence under the circumstances where the V reasonably believes that such resistance would not prevent rape

Force or more general threats of violence

Victim is not req. To actually resist

(2) When V is incapable of resisting or of understanding the nature of the act by reason of stupor or abnormal condition of the mind produced by a narcotic or anesthetic agent or another CDS administered by the offender and without the knowledge of the V

Third Degree/Simple Rape (14:43)

Anal /vaginal intercourse was without the consent of the V, who is not the spouse of the offender, and is committed under one or more of the following circumstances:

(1) When V is incapable of resisting/understanding the nature of the act by reason of abnormal mental condition because of intoxication or any cause that D knew or should have known of (V does it to themselves)

(2) When V is temporarily/permanently incapable of understanding the nature of the act because of unsoundness of the mind, and D knew/should have known of that incapacity

(3) When V submits because they think the offender is someone known to them and this belief is intentionally induced by artifice, pretense, or concealment of the offender

(4) when the offender act without consent of the victim

Sexual Battery (14:43.1)

General Intent

Sexual battery is the intentional touching of the anus or genitals of the victim by the offender using any instrumentality or any part of the body of the offender, directly or through clothing, or the touching of the anus or genitals of the offender by the victim using any instrumentality or any part of the body of the victim, directly or through clothing, when any of the following occur…

(1) Offender acts without consent of the V

(2) Act is consensual, but the other person, who is not the spouse of the offender, is under the age of 15, and is at least 3 years younger than the offender

Felony Carnal Knowledge of a Juvenile (Statutory Rape)

A person who is 17 or older has sexual intercourse, with consent, with a person who is 13, 14, 15, or 16, when the V is not the spouse of the offender and when the difference between the age of the V and the offender is 4 years or greater.

Misdemeanor Carnal Knowledge of a Juvenile (Statutory Rape)

A person who is 17 or older has sexual intercourse, with consent, with a person who is 13, 14, 15, or 16, when the V is not the spouse of the offender and when the difference between the age of the V and the offender is greater than 2 years, but less than 4 years.