Crim Law

What is consequentialism?

the justification for any act or rule depends entirely on its consequences. Punishment should be used when it creates greater social welfare.

Types of consequentialism

1. General deterrence

2. specific deterrence

3. rehabilitation

4. incapacitation

5. utilitarianism

general deterrence

punishment should be used to disincentivize other members of the community from committing crimes.

• by associating act with stigma (moral condemnation)

• someone else will see it’s not worth the punishment

Criticism: someone who is going to commit a sick crime will do it anyway. might be more effective with financial crimes than violent crimes

Specific Deterrence

Punishment should be used to disincentivize this particular defendant from committing (more crimes)

Rehabilitation

Punishment should be used to reform or “treat” the defendant so that they will not reoffend and can be reintegrated into society. To make them a productive member of society again

• criticism: do you really want govt changing who you are? Invasion.

  • criticism: you could exploit this and have someone punished for forever until they’re “cured”

Incapacitation

punishment should be used to isolate dangerous people from the community for the community’s protection (ie prison, probation, urine tests)

• Criticism: treats people as objects

• assessment to determine incapacitation worthiness can rely on variables that historically reproduce racial disparities in the outcome

utilitarianism

a kind of consequentialism. focuses strictly on maximizing happiness and well being.

• a consqu. would believe punishment is justified if it deters

  • utilitarianism would disasagree since it doesn’t maximize happiness and well-being

Retributivism

punishment is only justified when it is deserved (irrespective of the benefits to society)

different theories of retributivism

1. moral desert is good enough all by itself to justify punishment

2. Moore = moral culpability REQUIRES punishment

3. Morris = if you give up your burden of self-restraint, you gain an unfair advantage. by punishing you for that society is showing you respect as a human being

4. Hampton = We need to vindicate the victim by bringing the offender back down to equality

5. Lewis = if you remove blame, you can do whatever you want to the offender in the name of “curing.” This is why it’s more humanitarian to be a retributivist

Differences between CL and MPC for actus reus?

No differences

Actus Reus

A voluntary act

What is an “act”

bodily movement (pulling trigger, walking). excludes thoughts, bodily movements not caused by yourself (ie nonactions in Martin where state troopers brought him into public space to charge him)

What is voluntariness? (actus reus)

a willed act (convulsions, ticks, reflexes are excluded)

Time framing issue of actus reus

the chain of events leading to a crime to find that voluntary act. Ie voluntariness getting drunk can substitute for voluntariness later in the crime (State v Utter, ww2 vet with PTSD drunkenly killed son)

Omission Liability

Omissions do not qualify as an actus reus.

Liability for the commission of an offense may not be based on an omission unaccompanied by an action unless:

a. the omission is expressly made sufficient by the law defining the offense, or

b. a duty to perform the omitted act is otherwise imposed by the law

Why do we tolerate omitters?

Omissions do not qualify as an actus reus.

Blameworthiness. Non-doings are inherently more ambiguous than wrongdoings.

When is “a duty to perform the omitted act” imposed by law?

1. special relationships (ie parents and children, spouse to spouse)

2. Imperilment = causing the conditions that would lead to another’s injury

   1. voluntary undertaking (by contract or course of conduct) = The person voluntarily started to rescue or help someone, and leaving off or abandoning that help would leave the victim in a worse position than if no help had been started at all

Differences between CL and MPC for Mens Rea

Common Law uses terms malicious, willful, intentionally. and a few special rules.

Maliciously

With Purpose or Recklessness

Willfully

purpose

Intentionally

Purpose or Knowledge

Requirements of a Specific Intent Crime

Wanting to commit an act AND bring about a certain result. Requires:

1. Intent to cause a result element; or

2. Intent to commit some future act; or

3. Awareness (knowledge) or an attendant circumstance

ex: larceny (with intent to permanently deprive)

General Intent Crime

Requires only a “generally” culpable state of mine. Defendant wanted to commit act, but they don’t need to have a specific result in mind.

ex: battery, rape, DUI, punching someone in a bar fight (the state only needs to show you meant to throw the punch, not that you intended to break a specific bone)

What is a “material element of the offense” in MPC

1. Attendant circumstance - awareness of some fact in the world. Ie possession of drugs

2. Result of the conduct - dead body (without which there is no offense), theft

MPC Mens Rea overall rule

A person is not guilty of a crime unless he acted purposely, knowingly, recklessly, or negligently with respect to each material element of the offense (exception:strict liability).

Purposely

It is his conscious object to cause such a result.

• purpose as a state of mind only relates to results

  • Knows, believes, hopes, wishes that it happen

Knowingly

If the element involves attendant circumstances, he is aware that such circumstances exist

If the element involves a result, he acts knowingly when he is aware that it is practically certain his conduct will cause such a result

• practically certain that circumstances exist or that the result will occur

Recklessness

When he consciously disregards a substantial and unjustifiable risk that a material element of the offense will result from his conduct.

• must involve a “gross deviation” from the standard of care a law-abiding person would observe in the actor’s situation

Negligence

When he should be aware of a substantial and unjustifiable risk that the material element exists or will result from his conduct.

• must be a gross deviation from the ordinary standard of care

• should be aware but are not

4 Mens Rea MPC Special rules

1. Default mental state rule

2. Universal mental state rule

3. Points north rule

4. Willful blindness rule

Default mental state rule

When the culpability sufficient to establish a material element of an offense is not listed, such element is established if a person acts purposely, knowingly, or recklessly (BUT NOT NEGLIGENTLY)

• if only negligently inflicted harm, not guilty of robbery under code

Universal mental state rule

When the law prescribes the kind of culpability sufficient for the commission of an offense without distinguishing among material elements, such provision shall apply to all the material elements of the offense

• if the statute says that you need to knowingly 1) breaking in, then 2) steal. If only one mens rea term is listed, then the “knowingly” applies to both elements 1 and 2

Points north rule

Proving any higher mental state will suffice to charge a lower one. When if you could charge with P, you could charge with any element underneath that (K, R, and N)

Willful blindness rule

When knowledge of the existence of a particular fact is an element of an offense, that knowledge is established if a person is aware of a high probability of its existence, unless he actually believes it does not exist (also recognized at CL in most jdx)

Difference between CL and MPC for Strict Liability

MPC generally rejects strict criminal liability. Any strict liability term downgrades the statute to a “violation” rather than a crime. Ie parking violation, but this isn’t really a CRIME

Strict Liability Presumption

There is a presumption of mens real in all criminal statutes. To overcome the presumption, some legislative purpose to dispense with mens rea (expressed or implied) will be necessary.

Confronting strict liability statute in CL. Process

1. do the statutes show a mens rea term?

2. Is it a public welfare offense (regulating a potentially harmful or injurious item, ie anti-pollution law).

3. Are we dealing with a statutory rape law?

If no to any of the above, it is not a strict liability statute. Read in negligence as a default culpable state of mind.

Strict Liability Public Welfare Offense

The statute is regulating a potentially harmful or injurious item. Ie Food and drug safety violations, environmental pollution, traffic/speeding infractions.

• In Staples Congress tried to regulate gun ownership as a public welfare offense. SL is not appropriately applied to someone who didn’t have intent to commit gun violation. Grenade possession does not equal gun ownership since there is a lawful history of gun possession

Strict liability in statutory rape law

If there is no mens rea term in the statutory rape law it is likely strict liability. (See Garnett where there was no mens rea term in statute for D who had sexual contact with a 13 year old girl unknowingly. MD second degree rape statute defines a SL offense that does not require the state to prove mens rea. Made no allowance for mistake of age defense. Mens rea element was deliberately left out of the law here).

Difference between Mistake in CL and MPC

There are different rules. MPC doesn’t adopt moral/legal wrong doctrine

Mistake of Fact Common Law steps:

1. is the offense specific intent or general intent?

2. if SI, does the mistake of fact relate to the specific intent portion of the offense?

• if it negatives the SI —> mistake exculpates

• if mistake does not relate to the SI portion of the offense, treat like GI crime

3. If GI offense, did D act with a culpable state of mind (negligence or more)

• majority rule - if D’s mistake was reasonable —> mistake exculpates. if not reasonable (ie still negligent or worse) —> mistake does not exculpate

• minority rule - the “legal wrong” doctrine. Even if D’s mistake was reasonable, his mistake will not exculpate if the facts as D reasonably (but mistakenly) believed them to be constitute a lesser criminal offense. D will be guilty of the greater offense.

hypo: meth in a school zone. he knew posession was unlawful but didn’t know he was in a school zone.

majority rule: if mistake was reasonable —> mistake exculpates

legal wrong doctrine: mistake does not matter. will be charged with greater offense

Mistake of Fact, MPC

MPC rejects specific vs general intent but has an elemental approach.

• Whether a MOF “negatives” a required mental state depends upon the mental state that the government has to prove D had toward particular fact

Although MOF would otherwise be a defense, the defense is not available if D would be guilty of another offense had the situation been as he supposed. Then, D’s mistake shall reduce the grade and degree of the offense to be what he had supposed it to be (aka MPC doesn’t adopt the CL “legal wrong” doctrine)

Difference between CL and MPC for Mistake of Law

there is no difference!

Basic rule of mistake of law

mistake of law does not exculpate. There are 4 exceptions, though

4 exceptions to the rule that mistake of law does not exculpate

1. The statute defining the offense is not known to D and has not yet been published or otherwise reasonably made available prior to the act

2. D reasonably mis-relied upon a correct interpretation of the law that is later adjudicated as mistaken

3. D received an interpretation of the law officially made/issued by a public servant, agency, or body charged with administering, enforcing, or interpreting the law

• even law professors and legal defense = informal advice, and is not a defense to MOL

4. SI is an element of the offense and the MOL negatives that SI (P, K, R, N).

• Cheek was charged with willfully (SI) evading paying taxes. this would require state to prove he knew the duty and purposely violated. We cannot ask whether that mistake was reasonable

• In Marrero it was a MOL of a GI crime. #4 is not an exception to this. Default rule applies so MOL does not exculpate

Actual cause

cause-in-fact or factual cause. Asks whether D’s conduct play a role in bringing about V’s injury. Uses the but for test

Multiple necessary causation

Two or more defendants, acting independently but you need both to kill (have the death as it occurred). Each independently would satisfy the but-for test.

1. if 2nd cause would’ve gotten you the same result, first cause is liable

2. acceleration theory passes, aggravation no to get the death as it happened

3. hypo: defendant A locks Victim in a room and defendant B sets fire to the building. Neither locking the door alone nor setting the fire alone guarantees this specific death, but the combination of both makes the death inevitable. Both defendants can be charged with murder because each satisfies the but for test.

Multiple sufficient causes

Conduct of neither was required to injure V but each was enough on its own (sufficient) to cause it. So both are causes. Treats each factor as an actual cause so that a wrongdoer cannot escape liability just because another sufficient cause happened at the same time.

Proximate cause

Was the causal connection between D’s conduct and V’s injury too fortuitous or remote to hold D responsible for injury? Key test is foreseeability (but there are no hard and fast rules. Case by case with policy considerations, fairness, etc)

Proximate cause foreseeability analysis

1. Was the way in which the result came about actually foreseeable to the defendant?

   1. if you get the result the way you want it, you are a proximate cause regardless of intervening cause

2. Factors that break the causal chain:

• intervening cause that was wildly unforeseeable

• cause was more than a “de minimis contribution” (courts will ignore if you negligently injure stabbed friend when driving them to hospital)

• cause was an act, and not an omission

• V had reached a place of “apparent safety”

• intervening cause was a “free, deliberate, and informed human intervention”

• the victim was “at fault” for his injuries

Common Law First Degree Murder

1. Willful, deliberated, premeditated killing (express malice)

   1. Felony Murder - if an enumerated felony

premeditation

to think about beforehand (relates to the quantity of time beforehand)

deliberation

to measure and evaluate the major facets of a choice or problem (quality of the thinking process)

First degree felony murder

if enumerated. 4 limitations DO NOT apply

Second Degree FM

Not enumerated. 4 limitations apply.

The 4 limitations on the FM rule

1. Res Gestae

2. Inherently Dangerous to Human Life

3. Independently Felonious Purpose (or merger) doctrine

4. “In furtherance of” rule

Res Gestae

the things done. makes sure killing is done during commission of the felony. It continues after felony was committed until felon reaches point of temporary safety. Asks when the killing occurred, not when the death occurred (ie could be liable for FM if felon robs an elderly person and they later die from a stroke as a result).

inherently dangerous to human life exception

a major restriction on the felony murder doctrine in criminal law. It dictates that a defendant can only be charged with murder for an unintended death if the underlying felony carries a high, foreseeable risk to human life

1. Abstract test: “is it possible to commit a felony in a way not dangerous to human life? Look at the elements defining the felony (the text). Try to imagine if that crime could be committed in such a way that a reasonable person would not believe he was creating a risk of causing death. If you can imagine such a case, then the felony is not inherently dangerous and cannot support a 2nd degree FM charge in any case

2. On the facts test: look at circumstances the crime was committed under. Did the defendant commit the felony charged without being negligent with respect to causing death? If negligent or worse, then can be charged with FM. If not negligent, then cannot be charged with FM

Independently Felonious Purpose (or Merger) Doctrine

If the crime is assaultive in nature, then cannot charge with 2nd FM (would then charge with a different type of homicide). Ie if the intent is to steal something, then can charge with FM.

• all homicides are felonies. So if someone killed in HOP we cannot charge with FM. Unmerge.

“In furtherance of” rule

for 2nd FM, the killing must have occurred in furtherance of felony. Not antagonistic.

• We need to apply agency approach. Usually an accomplice is liable for FM. in Sophophone, doctrine did not apply because the person who directly caused the result was a non felon (the cop)

Different types of second Degree murder CL

1. intent (purpose/knowledge) to kill (express malice)

2. intent to cause grievous bodily harm (serious disfigurement or impairment of the function of a bodily organ) (implied malice)

3. Felony murder (non-statutorily enumerated felony that satisfies CL limits on FM (implied malice)

4. Depraved heart murder = extreme antisocial recklessness (implied malice)

CL Depraved Heart Murder PFC

1. unintentional homicide

2. that shows extreme recklessness (more than just regular recklessness)

3. and also shows and antisocial, callous, don’t give a damn attitude about human life .. A “wanton disregard for human life”

examples: shooting into crowd, driving car onto sidewalk, knoller case with scary dogs

any risk of death is considered recklessness (ie roulette. With 1/6 risk of death it’s still substantial and antisocial. However a surgeon doing a risky operation is not considered reckless since it’s justifiable.

Common Law Doctrine

Manslaughter CL

Homicide without malice. 2 types: voluntary and involuntary

Voluntary manslaughter CL

intentional homicide done in the heat of passion upon adequate provocation. Asks whether a reasonable person would have reacted or have cooled off.

Voluntary manslaughter CL rules

1. words alone cannot constitute adequate provocation unless they are accompanied by conduct indicating a present intention and ability to cause the defendant bodily harm

2. in hot blood means no deliberation

3. now we have reasonable standard BUT traditionally defendants were thought to act reasonably upon provocation:

   1. during battery on defendant or relative close to defendant

   2. mutual combat

   3. observation of spouse having intercourse with another

4. Reasonable person inquiry at CL requires only age and sex in objective inquiry

involuntary manslaughter CL

unintentional homicide where the act resulting in the homicide is “unduly dangerous to life and limb” (reckless or negligent homicide). Follows the same rules as the MPC (Actor did not know of risk but should have been aware of it. But requires a GROSS deviation from what an ordinary person would do)

MPC Murder

1. it is committed purposely or knowingly

2. it is committed recklessly under circumstances manifesting extreme indifference to the value of human life. 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 threat of force, arson, burglary, kidnapping or felonious escape.

• this is the equivalent of CL’s depraved heart without saying so. whether conduct is reckless or extreme recklessness is punted to the jury to answer

MPC Manslaughter

1. it is committed recklessly; or

2. a homicide that would otherwise be murder but committed under the influence of extreme mental or emotional disturbance (EMED) for which there is reasonable explanation or excuse.

• the reasonableness of such explanation or excuse shall be determined from the viewpoint of a person in the actor’s situation under the circumstances as he believed them to be (really punts to the jury on this one. takes into account shock and grief but not idiosyncracies)

MPC Negligent Homicide

Same rules as CL. When homicide is committed negligently. Actor did not know of risk but should have been aware of it. But requires a gross deviation from what an ordinary person would do

The 8th Amendment and Capital Punishment

“excessive bail shall not be required, nor excessive fines imposed, nor cruel and unusual punishments inflicted.” Capitol Punishment is not per se cruel and unusual., but states may not carry out executions that are cruel and unusual.

Bucklew test

challenges the method of execution as cruel and unusual.

1. does the state’s chosen method “cruelly superadd pain to the death sentence”; and

2. Is there a “feasible and readily implemented alternative method of execution that would significantly reduce a substantial risk of severe pain” that the state has “refused to adopt without a legitimate penological purpose”

Pre-reform Common Law Rape PFC

forcible rape elements:

1. an act of sexual intercourse (“carnal knowledge of a woman”); and

2. done with force or threat of force; and

3. against the will of the victim (ie without consent)

Doctrinal issues of pre reform CL rape

1. the relationship of force and consent - sex may be rough but consensual, vice versa

2. Force - could include threats of force but it had to be force to obtain sexual intercrouse (rather than force to show or psychological domination of the victim before intercourse (couldn’t just be a look in someone’s eyes))

   1. resistance: evidence of resistance was used to show either that actual physical force was used or that the victim’s capacity to resist was overcome by threats of force

3. Consent - traditionally nonconsensual alone was not enough to constitute rape

4. General intent offense

post reform CL sexual assault elemts

1. an act of sexual penetration (male or female victim)

2. in the absence of an affirmative and freely given permission, express or implied (ie in NJ, silence = no)

What is new in post-reform sexual assault?

1. no force requirement. the only force required by the statute is whatever force is needed for the act of sexual penetration itself

2. Expanded consent requirement:

• victim not required to resist (verbally or physically)

• V not required to say “no”

  • consent must be freely given permission, and

  • actions can qualify from this permission

• D is judged by what a reasonable person would have understood under the circumstances

Larceny CL elements

1. The trespassory taking away of property in the possession of another

2. taking that property away = asportation

3. without the owner’s consent (or by trick/mistake)

4. with purpose to deprive the owner of it permanently (ie to steal)

types of posession

Possession = sufficient control over an item to use it in a reasonably unrestricted manner. Can be “actual” or “constructive.” The question is whether something is already in your possession, since you cannot steal from yourself. Distinguish between mere custody (knowledge that someone else has control over) vs possession.

Constructive possession

while not having actual possession, has the intent and capability to maintain dominion/control over it

Actual possession

Ownership of the tangible item and ability to maintain immediate control over it.

Purpose to deprive permanently

• purpose to claim ownership and sell back, get a refund for it, or a reward

• if the felonious intent was formed before or at the time of taking, can be charged with larceny

  • it is not enough to take a bike to escape/drive away. Need to permanently deprive

MPC Theft by unlawful taking or disposition (223.2)

A person is guilty of theft if he unlawfully takes, or exercised unlawful control over, movable property of another without to deprive him thereof

MPC deprivation of movable property

1. To withhold a property of another permanently or for so extended a period as to appropriate a major portion of its economic value, or with intent to restore upon payment of reward or other compensation; or

2. to dispose of the property so as to make it unlikely that the owner will recover it

Even if your intent is not to deprive permanently, under code if you take laptop for the best years of its life, its within scope

theft of immovable property

A person is guilty of theft if he unlawfully transfers immovable property of another or any interest therein with purpose to benefit himself or another not entitled thereto

Theft/larceny differences between CL and MPC

Code rejects narrow interpretation of CL larceny. Code includes unlawful control so embezzlement (a seperate law in common law) would be within code’s scope. its control without taking