Criminal Law Final

Intentional

Subjective knowledge or purpose

Dunn - Arson, cigarettes into closet

People usually intend for the consequences of their actions. Evidence can be circumstantial or direct.

Russell - Beer Glass to face

Specific intent is not needed, just intent to do harm in general

Transferred Intent

If you intend to do harm to person B, but actually do the harm to C, intent transfers

Recklessness

Subjective conscious awareness of SURDGBH

Bonilla - gun fired in air - jury saw evidence off which they could conclude gun was loaded

Poellinger standard is used for insufficiency of the evidence reviews. Bias in favor of the jury’s decisions

Negligence

Objective Standard. Person should have known of SURDGBH

Viatatoe - Dragging gas attendant

Actual harm and actual knowledge does not matter for negligence. Look at actions and if the risk was great enough.

Jonathon R - PB jar fire

Criminal negligence requires risk to another

Subjective

Based on actor’s actual beliefs

Objective

Uses a reasonable person standard

Culpability theory

No criminal punishment without culpability

Proportionality theory

No amount of criminal punishment in excess of degree of culpability

Culpability Factors

Harm, danger, mental state, justification

Culpability: Harm

What was the seriousness of the injury? Was it a victimless crime?

Culpability: Danger

Look at the likelihood of harm and risk to society

Culpability: Mental State

Was harm intended? Was there an awareness of risk?

Culpability: Justification

Is there justification or excuse?

1st Degree Intentional Homicide

Intentional, no mitigating factors

2nd Degree Intentional

Intentional, but there are mitigating factors

First Degree Reckless

Reckless with utter disregard

Second Degree Reckless

Just reckless

Common Law Murder

Killing with malice aforethought

Voluntary Manslaughter

Intentional provoked killing

Involuntary Manslaughter

Reckless killing

Malice Aforethought

Intent to kill, intent to inflict grievous bodily injury, extreme recklessness (depraved heart), commission of a felony

Adequate provocation

Partial Defense for only first degree intentional homicide. Provocation was something D reasonably believed the intended victim has done, which causes the D to lack complete control at time of death

Felton - Severely abused spouse

adequate provocation must have extreme circumstances

Muller - not surprised about wife’s infidelity

adequate provocation needs suddenness that would overcome judgment of an ordinary man

Schmidt - shot estranged wife, other things going on

Adequate provocation is an objective standard, requires the highest degree of exasperation

Common Law - Adequate Provocation

Stricter that WI rule. Information gathered from words alone cannot be adequate provocation, viewing a situation can be adequate provocation. Strict cooling off period.

WI Adequate provocation: rule or standard?

WI is a standard, examined on a case by case basis

Excuse

substantial impairment, like a mental illness

Justification

Conduct was morally justifiable

McAfee - dispute over whose bullet was the actual cause of death

Intentional requires cause and intent. Solidifies the need for intent

Wagner - bar hopping while on prescription meds

Life regarding conduct was making himself known by revving the engine, going slow, and swerved.

What distinguishes first degree reckless homicide from second?

Utter Disregard

Geske - rusty buick

To determine utter disregard look at Jensen factors: What D was doing, why they were doing it , dangerousness, obviousness, and any life regarding factors

Common Law Felony Murder

If death results from the commission of any felony, there is liability

Deterrence Theory

Pros: Deters people from doing the same crime, can mae an example of some people

Cons: Assumes knowledge about potential legal consequences, criminals think they will be caught, criminals care about punishment

WI Felony Murder

If felony is a substantial factor in the death of someone, actor(s) are liable. This is harsher than the common law rule

Oimen - Victim killed a co-felon

For felony murder death is not limited to victims and the “trigger person” is not limited to co-felons

Oimen flight rule

felony encompasses immediate flight from felony, ends once in a place of temporary safety

Homicide by intoxicated use of a vehicle

Cause death of another, by operation or handling of a vehicle, with a detectable amount of controlled substance. This is a strict liability offense

Raczka - Seizure car crash

Affirmative Due care defense with burden of production and persuasion on defendant. If it is more likely than not that the death would have occured even if there was due care, there is a full affirmative defense. Cannot be used if D was negligent

For causation purposes, is medical malpractice always foreseeable?

Yes

Common Law and MPC Causation

Needs but-for and proximate cause

But-for Causation

Death would not have occured but-for the D’s actions

Proximity

How closely related are the D’s actions to death. Basically foreseeability.

Wisconsin Causation

Substantial factor test. Regarded as a jury issue, usually not a big deal. You know it when you see it.

Serebin - Man in nursing wanders into the cold and dies

Example of lack of but-for causation. There is no proof that but-for additional staffing the situation would have changed. Evidence cannot be too speculative.

WI Theft (Larceny)

Intentionally takes and carries away, uses, transfers, conceals, or retains possession of movable property of another without the other’s consent and with an intent to deprive the owner permanently of such possession

Common Law Theft

Taking property of another(caption), carrying away that property (aspotation), taking was a trespass (wrongfulness, non-consensual), taking was performed with intent to steal

Genova - sold stolen car part to cop

Theft statute is to be read disjunctively, so takes and carries away OR uses OR transfers…

Edwards - “self-help” collecting debt

WI uses the specific property test. You can use self-help as long as you can prove you are taking back the exact thing that is/was yours

Common Law Self-Help

If someone genuinely believes they have a legal right to what they are taking back, self-help is a complete defense to a robbery/theft charge.

Johnson -Car stalls, cannot steal it

Asportation is a required element of robbery

What is the difference between theft from person and robbery?

Lack of intent to overcome resistance.

Narrow Interpretation of person

Property must be attached to or held by the victim

Broad interpretation of person WI

Zone of control around the victim, about an arms length

Theft from person

Basically same as theft, just has to be taking from the person

Robbery

Whoever, with intent to steal, takes property from the person or presence of the owner by using force with intent to overcome physical resistance or threatening imminent use of force

Walton - Purse snatching from old woman

Legal force is slight touching that is nevertheless hostile and wrongful touch amounts to legal force

Armed Robbery

Robbery with the use or threat of use of a dangerous weapon

Rittman - not so armed bank robbery

For armed robbery, if a victim has a reasonable belief that the D was armed, that is enough. Reasonableness depends on circumstances, could be a verbal representation or alone, or conduct, or other physical evidence

Fraud

(1) Person obtained title to property (2) D intentionally deceived owner with false representation (3) D intentionally defrauded the owner with false representations

Meado - Van lease bounced check

Title could mean any money, goods, wares, merchandise, or other property. Look at purpose behind the statute.

Ploeckelman - Milk quality misrepresentation

A failure to disclose can be a representation when: (1) fact is material to transaction (2) party with knowledge of the fact knows that the other party is entering transaction with mistake to that fact (3) Fact is exclusive within knowledge of one party AND mistaken party could not be reasonably expected to discover it (4) Objectively, mistaken party would reasonably expect disclosure of that info

Entity Identity Theft

(1) Intentional use or attempt to use or possess with intent to use ID info or document of entity without consent or authorization (2) intentional representation of consent (3) to obtain anything of value or to do harm to reputation or property of entity

How is identity theft different than theft?

Can be attempt

Stewart - tried to lie to PSI reported and sentencing court that he was in military and had diploma

representation does not require express verbal representation , instead just represent acting with consent of entity

Individual Identity Theft

(1) Intentional use attempt to use or possess with intent to use personal, individual information without consent (2) intentional representation of consent (3) to obtain anything of value OR to avoid criminal /civil penalty OR to harm the person or their estate OR their reputation

Mason - Burger King and gas with two different cards

presenting a document can count as representation. Preference for avoiding surplusage is not absolute

Peters - Fake name for bail reduction

Bail is monetary condition of release, has monetary value

Three ways someone can be charged with PTAC

(1) Directly committing a crime (2) Intentionally aiding and abetting someone committing a crime (3) By being a member of a conspiracy to commit the crime or solicits

PTAC - Aiding and Abetting

A person aids and abets the commission of a crime if they (1) aid through either direct assistance, or known moral support, the commission of a target offense (2) intend to aid the commission of target offense AND (3) the target offense or its NPC is actually committed

PTAC - Aiding and Abetting Defenses

Only defense is stopping the crime. There is no withdrawal defense.

Tourville - gave a place for others who committed theft to open safe and dispose of things

Aid that is rendered to any of the charge offense act elements will count (he helped in the carrying away

Ivy - anxious robbery lookout

Aiders and Abettors are liable for NPC offenses. Depending on circumstances an armed robbery can be an NPC of a robbery

Knowledge requirement for NPC

D only needs constructive knowledge, not actual knowledge, that a dangerous weapon would be used

PTAC - Conspiracy

(1) Agree target offense will be committed (2) Intent that target offense be committed (3) charged offense committed (4) charged offense is target offense or NPC

What are the three inchoate crimes (unformed crimes)

Conspiracy, attempt, solicitation

What PTAC can the withdrawal defense be used for?

Conspiracy

Inchoate Conspiracy

(1) Agree target offense will be committed (2) Intent that target offense be committed (3) Overt Act

Common Law Plurality Requirement

Bilateral

Sample - sting operation to give inmate drugs to sell

WI allows both unilateral and bilateral conspiracy

Overt Act

Can be pretty much anything, example, driving to the liquor store

Theory: Preemptive Action by Law Enforcement

Don’t want to wait for crime to happen, but also don’t want abuse of power

Attempt

(1) Sufficient act such that desistance is improbable (2) intent to commit target offense

Stewart - Bus stop panhandling/robbery

Hamiel film test: If film was stopped, is there one respnsible next sequence of events? If yes, there is enough for attempt, if more than one, not enough

Limits on Attempt - Recklessness

Cannot have attempt liability or a reckless crime because it’s usually an accident, probably rules out negligence. No attempt of an attempt

Limits on Attempt - Strict Liability

Cannot attempt a strict liability offense

Limits on Attempt - Knowledge

All felonies can be charged as attempt, knowledge component makes the amenable

Other Limits on Attempt

Felonies only except misdemeanor battery, theft, and theft of farm raised fish

Grading for Inchoates - Common Law

All inchoates are misdemeanors

Grading for Inchoates - MPC

All inchoates are subject to completed crime punishment

Grading for Inchoates - WI

Solicitation: All H felonies for the most part, unless life imprisonment or Class I originally

Attempt: ½ max punishment of completed

Conspiracy: MPC approach of completed offense

Henthorn - illegally? altered prescription

Shows there is a bar for what counts as an attempt. Henthorn would have had to come back twice for it to be a crime, so not attempt

Damms - tried to shoot his wife with unloaded gun

Impossibility is not a defense in WI. If D thinks actually is possibly, they are still liable. Focus is on the dangerous criminal propensities.

Abandonment - MPC

Renunciation must be both (1) complete (cannot be postponement or transfer) (2) voluntary (not motivated by increased chance of apprehension or something that made crime harder than planned for)