Criminal Law

Rule of Lenity

If there are two competing interpretations that you can't decide between - interpret in the way more favorable to the defendant

Presumption Against Superfluity

Assume every word in a statute has its own independent function/meaning

Presumption of consistent usage

Assume the word is used consistently throughout a statute

Ejusdem generis

"of the same kind" - where in a statute there are general words following particular and specific words, the general words must be confined to things of the same kind as those specifically mentioned.

Expressio unius est exclusio alterius

the expression of one thing is in exclusion of the other

Conduct

the physical act or omission to act that violates a statute

Mental State (Mens Rea)

the intention or knowledge of wrongdoing that constitutes part of a crime

Result

- Requires that something the defendant did caused the prohibited result

- Result is not concerned with the manner in which the defendant caused the result

Attendant Circumstances

The additional facts about the case that are also pertinent to determining whether a crime was committed

Constitutional Limitations on Power to Criminalize

- Ex post facto: Cannot charge a defendant under a law that retroactively changes the legal consequences or status of actions that were committed, or relationships that existed, before the enactment of the law

- Vagueness limitation: Laws have to be sufficiently clear or it's a due process violation

- 8th Amendment: Limitation on cruel and unusual punishment

- Congress cannot make it a crime to do something protected by the Constitution

- Cannot criminalize status

Robinson v. California

status cannot be criminalized under 8th and 14th Amendments

Defenses using this case rarely succeed

City of Grants Pass, Oregon v. Johnson

You can criminalize activities that someone with a certain status can't help but doing, thereby forbidding action rather than merely status

Voluntary Act Requirement

Crime requires voluntary willed bodily movement or culpable omission

Exceptions

- Constructive Possession

- Agreement

Constructive Possession

an appreciable ability to guide the destiny of an item

Culpable Omission

- Duty to act, failure to act, harm, culpable mens rea

- Sources of Duties: statutes, parental/marital/romantic(sometimes)/contractual relationships

Commonwealth v. Pestinikas

A failure to perform a duty imposed by a private contract may be the basis for a criminal charge.

Morissette v. United States

Court reads in a mens rea requirement in keeping with common law tradition for larceny and other common law crimes. Morissette is entitled to defense that he did not have the requisite mental state.

When statute does not have a mens rea but court reads in a required one, what is the standard?

Recklessness is the default

Utilitarian vs. Deontological Justifications for Punishment

Deontological: having to do with rules/justice

Utilitarian: having to do with consequences/outcomes

Justifications for Punishment

- Deterrence

- Retributivism

- Incapacitation

- Rehabilitation

- Expressivism

Transferred Intent

Transferred intent is a criminal law doctrine that holds a person criminally responsible for the harm caused to an unintended victim. It applies when a defendant intends to commit a crime against one person but accidentally harms another instead. The defendant's intent to commit the crime is "transferred" from the intended victim to the actual victim to satisfy the required mental state (mens rea) for the offense.

Specific vs. General Intent

- Specific Intent corresponds loosely to purposely

- General Intent is loosely less than purposely

Purposely (MPC)

Summary: Knows consequences and seeks them out

Knowingly (MPC)

Summary: an awareness of conduct being of a specific nature

Willful Blindness (MPC)

"When knowledge of the existence of a particular fact is an element of an offense, such knowledge is established if a person is aware of a high probability of its existence, unless he actually believes that it does not exist."

Willful Blindness (Federal Test)

(1) The D must subjectively believe that there is a high probability that a fact exists; and

(2) The D must take deliberate actions to avoid learning of that fact

Recklessness (MPC)

Conscious disregard for a substantial and unjustifiable risk

Negligence (MPC)

Not aware but should have been aware of substantial and unjustifiable risk

Categories of Mistakes

Two categories of mistakes: mistakes of fact and mistakes of law

A mistake is relevant if it negates a required mental element of an offense

Mistake of Fact

MPC says is a defense if and only if it negates mental element of offense

If the mental state is purpose or knowledge, then mistake can negate the requisite mens rea no matter how unreasonable the mistake is

People v. Navarro

- D charged with stealing four wooden beams from construction site

- D claimed mistake of fact - he thought they were abandoned

- Theft requires D thinking they're taking property that belongs to someone else

- "One cannot intend to steal property which he believes to be his own"

- No intent to permanently deprive someone of their property

- If jury thinks he was genuinely mistaken then he should be acquitted

Mistakes of Law

MPC § 2.04(1)(a): Ignorance or mistake as to a matter of fact or law is a defense if the ignorance or mistake negatives the purpose, knowledge, belief, recklessness, or negligence required to establish a material element of the offense.

Pretty much never works; "ignorance of the law is no excuse"

Can work if knowledge if the law is an element itself

Some juris + MPC recognize mistake of law if there is reasonable reliance on official statements of the law that later turn out to be false

Ratzlaf v. United States (1994)

Illegal Structuring Case

- Defendant charged with crime where knowledge that the action was illegal is a part of the crime, as such entitled to a mistake of law defense

People v. Marrero (1987)

Mistake of Law case

- D brings gun into club thinking he falls under definition of peace officer

- Found guilty because statute violated imposes liability regardless of mental state (strict liability)

Involuntary Intoxication Defense

Must be a causal connection between the actor's involuntary intoxication and the commission of the prohibited act

Excuse defense if not self-inflicted (see pathological intox)

Pathological Intoxication

Most jurisdictions explicitly allow

MPC §2.08(5)(c) "Pathological intoxication" means intoxication grossly excessive in degree, given the amount of the intoxicant, to which the actor does not know he is susceptible

Treats as a form of temporary insanity

Generally disallowed when the defendant consumes illegal intoxicants or legal intoxicants from which a reasonable person would expect adverse reaction (alcohol)

Voluntary Intoxication

MPC: Voluntary intoxication not a defense for crimes with mens rea of recklessness or negligence

Some states permit voluntary intoxication defense, but it must affect the commission of the crime. Cannot get drunk after planning crime to avoid culpability

Policy: some states such as Florida ban the defense for public safety reasons

Categories of Causation

But-for causation

Proximate causation

But-for Causation

Whether the result would have occurred but-for the actions of the defendant

Substantial factor test: Whether the defendant's actions were a substantial factor in producing the result, regardless of whether the event might have occurred anyway

Acceleration theory: Whether the defendant's actions accelerated or hastened the result

Proximate Causation

Whether the causal connection is sufficiently close to hold the defendant responsible for the resulting harm

Common law rule: If the result occurred more than a year-and-a-day from the defendant's actions, the result could not be attributed to the defendant as a matter of law

Intervening Causes to Proximate Causation

Consider:

- The relative significance of the harm

- Foreseeability of intervening cause

- Independent (volitional act) / coincidental intervening causes will break causation

- Intervening agents who act negligently will not break the chain of causation

- Dangerous games likely lead to liability

Eggshell Plaintiff Rule

Defendant takes their victim as they find them

Apparent Safety Doctrine

If it would appear to an observer that there is no longer a danger that the defendant's action will cause the harm, the chain of causality is broken

MPC Approach to Proximate Cause

In cases of recklessness of negligence, causation not established if result is so remote that it makes punishing D illegitimate

Malice Aforethought (Common Law)

- Intention to kill

- Intention to inflict grievous bodily harm

- Depraved heart murder

- Intention to commit felony during which a death results

Express Malice

Intentional killing

Implied Malice

Recklessness that expresses depraved indifference to human life

Murder (MPC)

killing that defendant brought about purposely, knowingly, or recklessly under circumstances manifesting extreme indifference to the value of human life

Does not contain degrees of murder, a feature most states retain

First Degree Murder

Most states use one or both of the following criteria:

- Language like willful, deliberate, or premeditated

- Premeditated: planned out crime

- Deliberated: decided whether or not to go through

How long before crime must these occur?

- Varies by juris up to instantaneously, though some states replace P+D with terminology emphasizing intention occur before the act

May also include specially loathsome cases: felony murder, murder of a peace officer, etc.

State v. Guthrie

Jury instruction: "In order to constitute a 'premeditated' murder an intent to kill need only exist for an instant"

Holding: First degree murder requires "deliberate and premeditated killing which means that the killing is done after a period of time for prior consideration"

CL Voluntary Manslaughter

(1) Killing in the heat of passion (2) with adequate provocation (3) performed suddenly without reasonable opportunity for passion to cool and (4) causal connection between 1-3

CL Adequate Provocations for Voluntary Manslaughter

- Extreme Assault on Defendant

- Mutual Combat

- Illegal Arrest of Defendant

- Injury or Serious Abuse of Loved One

- Sudden Discovery of Spousal Adultery

MPC Manslaughter

A person is guilty of manslaughter is he:

1) Recklessly kills another; or

2) kills another person under circumstances that would ordinarily constitute murder, but which homicide is committed as the result of "extreme mental or emotional disturbance" (EMED) for which there is a "reasonable explanation or excuse"

Note that contemporaneousness not required by MPC - likely very rare to prove killing should be downgraded to MPC Manslaughter without it though

Rekindling Doctrine

In some jurisdictions, being suddenly confronted by a past abuser or abuse to a loved one can qualify as adequate provocation, though use is narrowly tailored for policy reasons

CL Involuntary Manslaughter

1. when D engages in conduct that creates a substantial and unjustified risk of death and results in a death (some juris. require recklessness, others only negligence)

2. Killing committed during a crime if not felony murder

Misdemeanor Manslaughter Rule

Common law concept that applies a manslaughter charge to a killing that results from the defendant's commission of an unlawful act that is insufficient for a charge of felony murder

MPC Negligent Homicide

Criminal homicide constitutes negligent homicide when it is committed negligently.

People v. Knoller

The dog case

A finding of implied malice requires that one act with a conscious disregard to human life.

Felony Murder Rule

Felony murder allows for convictions for defendants who commit a felony that leads to someone else's death

Jurisdictions may make it a first or second degree murder charge depending on 1st degree murder doctrine

Requirements of Felony Murder

Triggering Felonies:

- Vary by juris but almost always include arson, burglary, rape, robbery

Mens Rea Required:

- Mens rea of the underlying felony

When does felony murder start and stop?

- Starts when someone could be guilty of attempt

- Usually stops when flight stops - when the felon reaches a place of temporary safety

Limitations on Felony Murder

1. Independent felony (see merger rule)

2. Inherently dangerous felony

- May use a categorical or case by case approach

3. In furtherance of a felony (usually includes subsequent flight)

Courts are often hostile to felony murder - high degree of scrutiny

Approaches to Felony Murder Liability

Proximate Cause Approach: victim's death was set in motion by D's commission of a requisite felony

(People v. Hernandez)

Agency Approach: D or co-felon must be perpetrator of the killing

(State v. Sophophone)

MPC Approach to Felony Murder

Felony murder is fit into the extreme indifference standard with a presumption

"Such recklessness and indifference are presumed if the actor is engaged or is 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"

Felony Murder Merger Limitation

- Felony cannot merge into the resultant killing

- Rape never merges

- Which felonies do merge varies by state; Texas only limits rape and manslaughter

CL Battery vs. CL Assault

CL Battery: physical contact

CL Assault: attempted battery or reasonable threat of same

Most states have followed MPC and merged the two into one crime (assault) that covers all three scenarios

CL Battery

1. Unlawful

2. Application of force to another

3. Resulting in either

(a) bodily injury; or

(b) offensive touching

Mental state: general intent

CL Assault

i. Two types:

1. Attempt to commit a battery (offensive touching)

2. The intentional creation other than by mere words of a reasonable apprehension in the mind of the victim of imminent bodily harm

ii. Mental State: Variable

MPC Assault

a) attempts to cause or purposely, knowingly, or recklessly causes bodily injury to another; or

(b) negligently causes bodily injury to another with a deadly weapon; or

(c) attempts by physical menace to put another in fear of imminent serious bodily injury

CL Categories of Thefts

1. Larceny

2. Larceny by Trick

3. Theft By False Pretenses

4. Embezzlement

5. Extortion

6. Robbery

Larceny

Trespassory taking and carrying away the personal property of another, with the intent to permanently retain the property.

State v. Carswell: requires asportation but it does not need to be successful or even moved very far (D moved AC unit 6 inches)

Larceny by Trick

Using fraud to steal (no need for asportation) with intent to permanently deprive

Theft By False Pretenses

Similar to larceny by trick except that theft by false pretenses requires that the actor receive actual title to the property (as opposed to mere possession) through the fraud

Embezzlement

D has lawful possession of another's personal property, which is then converted or appropriated with intent to permanently deprive

Extortion

Obtaining possession by threat of engaging in some act such as assault or blackmail (CL separates legal acts such as blackmail into separate offense)

Robbery

The unlawful taking of property from a person's immediate possession by force or intimidation

MPC Approach to Theft

Consolidates all common law thefts into one theft offense with subcategories for how the theft occurred

Rape

Non-consensual sexual intercourse completed by force or threats of force (some juris have removed threat or force)

Aggravated rape

When rape causes serious bodily injury or is committed during another violent offense

Elements of an Attempt

- The D has the specific intent or purpose to bring about the crime; and

- D takes sufficient steps toward committing the crime to satisfy the jurisdiction's actus reus test

Defenses to Attempt Charge

- Crime D thinks they are committing is not a crime

- Abandonment (must completely and voluntarily renounce criminal purpose)

- Merger

Punishment for Attempts (MPC vs. CL)

MPC: same as completed offense

CL: usually a lesser penalty

Mens Rea Required for Attempt

Defendant must have purpose to commit the underlying crime: must have purpose to engage in the conduct or bring about the result AND mental state required for underlying crime

Public Policy:

Higher mental state requirement to balance out the lower act requirement and the fact that the harm from the crime never materializes

People v. Gentry

D pours gasoline on gf during argument and she catches on fire - charged with attempted murder

Knowledge insufficient for attempt conviction, D must have purpose

How to Determine if Attempt Can Be Applied

1. Mens rea of crime: if recklessness as to a particular result, no attempt liability

2. If strict liability as to an unintended result, no attempt

3. If strict liability for conduct regardless of result, possibility of attempt liability

Distinguishing Attempts from Slight Preparation Attempts Tests

- Slight Acts Test

- Physical Proximity Test

- Dangerous Proximity Test

- Unequivocality Test

- Probable Desistance Test

- MPC Substantial Step Test

Slight Acts Test

allows for liability if the design of a person to commit the crime is clearly shown and the actor commits even "slight acts" in furtherance of that design

Physical Proximity Test

the defendant must be close in time and space to the final act that completes the crime

Dangerous Proximity Test

more conceptual, asks whether the defendant was dangerously close to consummating the offenses - proximity here is a causal concept, not a geographic one

Unequivocality Test

asks whether the defendant's conduct unequivocally demonstrates the defendant's intent to commit the crime - an actus reus requirement that loops back and refers to the mental element

Probable Desistance Test

requires that the defendant's conduct would result in the completed crime "in the ordinary and natural course of events" if the actor had not been interrupted by a third party (such as the police)

MPC Substantial Step Test

requires that the defendant engage in a "substantial step in a course of conduct planned to culminate in his commission of the crime"

MPC Carveout for Inherently Unlikely Attempts

"If a particular conduct charged to constitute a criminal attempt... is so inherently unlikely to result or culminate in the commission of a crime that neither such conduct nor the actor presents a public danger warranting the grading of such offense... the Court shall exercise its power under Section 6.12 to enter judgment and impose sentence for a crime of lower grade or degree, or in extreme cases, may dismiss the prosecution"

Conspiracy

Conspiracy is an agreement between two or more individuals to commit an unlawful act

Elements of Conspiracy

- Agreement to commit an unlawful act

- Specific intent or purpose to achieve the goal or object of the conspiracy

- Overt act in furtherance of the conspiracy

Conspiracy Overt Act Requirement

Most states require an act in furtherance of the crime to avoid penalizing more than mere thought

Some states and the feds do not require an overt act

U.S. v. Shabani

D is alleged to be part of drug smuggling ring, contends prosecution cannot prove overt act

Court writes that conspiracy to commit a crime contains its own actus reus, relevant statute is silent on overt act requirement

US v. Abu Ghayth

Makes speeches promising more attacks after 9/11 - enough to get him for later shoe bomb plot (speech as an overt act)

Withdrawal From Conspiracy

Even in jurisdictions without renunciation, withdrawal will cut off vicarious liability

Acts already performed by co-conspirators cannot be disowned but the link to future acts could be severed if the defendant successfully withdraws from the conspiracy

Most jurisdictions require that the defendant perform an affirmative act to disavow or defeat the conspiracy - could be accomplished in several ways

Affirmative Acts To Withdraw From Conspiracy

- Informing the authorities of the criminal endeavor;

- Communicating withdrawal to the co-conspirators; or

- Dissolving the underlying agreement that forms the basis of the conspiracy

Pinkerton Liability

Conspirators are responsible for crimes committed by co-conspirators that either:

1. Form part of the conspiratorial agreement

2. Stray beyond the conspiratorial agreement but nonetheless were a foreseeable outcome of that agreement