Criminal Law

Felony

A crime with a possible sentence over one year

Misdemeanor

A crime with a possible sentence of 90 days

Gross Misdemeanor

A crime with a possible sentence of 365 days

Petty Misdemeanor

No jail time possible, maximum fine of $300, and not defined as a crime (no right to counsel)

Types of Elements

• Identity

• Action (actus reus)

• State of Mind (mens rea)

• Prior Convictions

• Scientific

• Jurisdictional

Identification Element

The defendant is the person who committed the crime - this can be proven without knowing the individual’s name.

Types of Identification Evidence

• Eyewitness testimony

• DNA/Fingerprints

• Video or audio recording

• Documents

• Motive and opportunity

• Confessions

Actus Reus

Action element - Often combine an action that caused an outcome

Cause-in-fact

(“but-for” cause) one that is necessary for the result to have occurred

Proximate Cause

an action that was a substantial factor in causing the result

Actual Possession

Exists when a person has a direct physical control over the object at a given time

Constructive possession

Exists when a person knowingly holds the power and ability to exercise dominion and control over the object - proximity alone may not be enough. You need knowledge and access.

Mens Rea

State of mind element - the government must prove that the defendant knew, intended, or planned to commit the criminal act.

4 Key States of Mind

• Intent

• Knowledge

• Recklessness

• Negligence

Knowledge

The defendant is aware that their conduct is of that nature or that such circumstances exist, and they are aware that it is practically certain that their conduct will cause such a result.

Proving Intent through Direct Evidence

• Confession to law enforcement or another person

• Eyewitness who saw the intentional act

• Video evidence

Proving Intent through Circumstantial Evidence

• Ordinary inference is that a person intends the logical consequences of their actions

• Evidence of planning pre- or post-crime

Transfer of Intent

when committing a crime against one person (i.e. murder) but accidentally committing the crime against another person (i.e. kill a bystander) - cannot just be an attempt, harm must occur.

Mistake of Fact

Can negate knowledge or intent if required (thought it was candy in the box, not drugs) - can be a defense (unless knowledge and intent aren’t required - sex with a minor)

Mistake of Law

Cannot negate knowledge or intent if required (didn’t know it was illegal to speed in a school zone) - cannot be a defense

Federal Categories of Crimes Involving Death

• First-Degree Murder

• Second-Degree Murder

• Voluntary Manslaughter

• Involuntary Manslaughter

Elements of Second-Degree Murder

1. Jurisdiction

2. Identification

3. Actual death

4. Causation of the death by the defendant

5. Unlawfulness

6. Malice aforethought

Malice Aforethought

The element that is established by evidence of conduct, which is reckless and wanton, and a gross deviation from a reasonable standard of care, of such nature that a jury is warranted in inferring that the defendant was aware of a serious risk of death or serious bodily harm. Extreme disregard for life.

1st and 2nd degree (federal)

3rd degree (MN)

Elements of First-Degree Murder

1. Jurisdiction

2. Identification

3. Actual death

4. Causation of the death by the defendant

5. Unlawfulness

6. Malice aforethought; and

7. At least one of the following

   • Premeditation; or

   • That the death was caused in the course of committing arson, escape, murder, kidnapping, treason, espionage, sabotage, sexual abuse, burglary, or robbery; or

   • Perpetrated as part of an assault or torture against at least one child; or

   • That the death was caused during a premeditated attempt to kill someone other than the actual victim

Examples of Premeditation

• Procuring a weapon after intent is formed

• Discussion of killing before the act either with others or the victim

• Prearranged alibi

Felony Murder

Murder committed in the perpetration or attempt to perpetrate:

• any arson

• escape

• murder

• kidnapping

• treason/espionage/sabotage

• aggravated sexual abuse/sexual abuse/child abuse

• burglary/robbery

• Part of a pattern or practice of assault or torture against a child(ren)

Charge is automatically applied if a death occurs during the course of the felony - defendant need not have killed them or intended to kill them.

Elements of Voluntary Manslaughter

• Jurisdiction

• Identification

• Actual death

• Causation of death by the defendant (upon a quarrel or sudden heat of passion - defense)

• Unlawfulness

The government only needs to show that (d) did not act in the heat of passion to bring a greater charge

Elements of Involuntary Manslaughter

• Jurisdiction

• Identification

• Actual Death

• Causation of the death by the defendant

• Unlawfulness

• At least one of the following

  • The killing occurred during the commission of a misdemeanor

  • The killing occurred during the commission of a unlawful act in an unlawful matter which might produce death

  • The killing occurred during the commission of a lawful act without due caution and circumspection which might produce death (negligence)

Castle Doctrine

Alters the traditional rule to justify shooting/killing within your abode that:

• Is a justified commission of a felony

• You do not have to retreat in your own home

Stand Your Ground

Alters traditional rule to eliminate element of “no reasonable retreat” for self-defense - even outside your abode.

Elements of Robbery

• Jurisdiction

• Identity

• Use of force or threat of force

• To take property from the presence of the victim

• With intent to unlawfully deprive the victim of that property

Elements of Simple Assault

• Jurisdiction

• Identification

• The defendant either

  • Attempted to inflict injury on another, or

  • made a threat to inflict injury, and

• That action or threat caused a reasonable apprehension of immediate bodily harm

*Can be increased to aggravated if it involves a weapon and/or injury

Elements of Kidnapping

• Identification

• Transportation in interstate commerce (or other type of jurisdiction)

• Of an un-consenting person (victim state of mind)

• Who is held for reward, ransom, or otherwise

• The acts are done knowingly and willingly

Elements of Sexual Assault by Force or Threat

• Jurisdiction

• Identification

• Knowingly

• Caused another person to engage in a sexual act

• By force or by putting the victim in fear of death, serious bodily harm, or kidnapping

Elements of Coercive Sex

• Jurisdiction

• Identity

• Knowingly

• Caused another person to engage in a sexual act

• By threating or placing that other person in fear

Elements of Non-consensual Sex

• Jurisdiction

• Identification

• Knowingly

• Engaged in a sexual contact (or act, increases severity)

• Without the permission of the other

  • Either a conscious victim that does not consent, or

  • A victim who is impaired or unconscious

Elements of Sex with a Minor

• Jurisdiction

• Identification

• Knowing engagement in a sexual act

• With a person under 16, and

• At least a 4-year age gap between the defendant and the victim

Chemical Composition

The government must prove the substance in evidence is chemically identified as a substance that is prohibited - usually proven through expert reports and testimony or through stipulation by parties

Requirements For a Lesser Included Offense Jury Instruction

1. The lesser offense is within the charged offense, and

2. Based on the evidence presented at trial, a reasonable jurror could find the defendant guilty of the lesser offense but not the greater

Two Approaches to Distinguishing Murder from Manslaughter

1. At trial - via jury instructions and how it is charged

2. At sentencing - mitigates a homicide down to manslaughter

Self-Defense

• May only be used if defense was necessary to defend self or others against an imminent threat and you must use no more force than reasonably necessary.

• It does not apply where (d) was the initial aggressor.

• (d) has the duty to retreat if is possible to do so.

Imperfect Self-Defense

If something happened (i.e. victim’s wrongful conduct provoked the offense), the court considers the following to determine if a lower sentence is appropriate:

1. Relevant physical characteristics of both parties

2. Conduct of both

3. Defendant’s perception of danger

4. Actual danger

5. Conduct of the victim that contributed to the danger

6. Proportionality and reasonableness of the defendant’s conduct

“Crime of Violence”

Means any offense under the federal or state law, punishable by imprisonment for a term exceeding one year, that -

1. Has an element of use, attempted use, or threatened use of physical force against the person of another, or

2. is murder, voluntary manslaughter, kidnapping, aggravated assault, forcible sex, robbery, arson, extortion, or use or unlawful possession of a firearm or explosive.

Armed Career Criminals Act

A sentencing enhancement for “violent felons” committing crimes punishable by imprisonment for a term exceeding one year, or any act of juvenile delinquency involving the use of or carrying a firearm, knife, or destructive device that -

1. Has an element of use, attempted use, or threatened use of physical force against the person of another; or

2. Is burglary, arson, or extortion, involves the use of explosives, or otherwise involves conduct that presents a serious or potential risk of physical injury to another

Bank Robbery

Whoever, by force and violence, or by intimidation, takes or attempts to take from the person or presence of another… money… belonging to… any bank

Three Models of Consent

1. “No” Model - It is okay to act unless the partner signals “no”

2. “Yes” Model - it is illegal to act unless the partner signals “yes”

3. Negotiation Model - exchange of views before the act that would give a reasonable person the idea that consent was given

Basic Elements of Theft

1. Jurisdiction

2. Identification

3. Takes, uses, transfers, conceals, or retains something

4. Without the owner’s consent

5. With intent to deprive the owner of possession of the property (does not need to be permanent)

Fencing Laws

Criminalizes a person knowingly buying stolen goods with the intent of reselling the goods at a profit and thereby acting as a middleman between the thief who stole the goods and a customer who may buy the goods in a good faith in a legitimate market

Elements of Identity Theft

1. (d) knowingly transferred or used a means of ID of another person without legal authority;

2. (d) knew it belonged to a real person; and

3. Did so in relation to enumerated crime

Elements of Burglary

1. ID

2. Illegal entry into building or unlawfully remaining

3. Intent to commit a crime on the premises

Plain Error Rule

1.    There was an error

2.    It was plain

3.    The error affected the defendant’s substantial rights

4.    Leaving the error uncorrected would result in a miscarriage of justice substantially affecting the fairness, integrity or public reputation of the proceedings

Embezzlement

Conversion or improper use of property with which the defendant is entrusted

Fraud

The intentional use of wrongful deception for personal gain.

Elements for Narcotics Offenses

1. Identity

2. Action (possession, distribution, etc.)

3. Intent

4. Knowledge that a controlled substance was involved

5. Chemical composition

Types of Narcotics Offenses

• Simple possession

• Manufacturing

• Distributing

• Dispensing

• Possession with intent to manufacture/distribute/dispense

Quasi-Suspect Weapon

Weapons with characteristics that make it apparent that the object is illegal

The government only needs to prove knowledge of possession

Non-Quasi-Suspect Weapon

Weapons that are normal and unmodified

The government must prove beyond a reasonable doubt that the defendant knew the object he possessed had characteristics that made it illegal

Factors for Determining Detention

1. Nature and circumstances of charged offense

2. Weight of the evidence against the defendant

3. History and characteristics of the person

4. Seriousness of the risk of danger

Elements of Reentry After Deportation

1. Is an alien

2. Who was deported

3. And thereafter re-entered into the country,

4. Without the requisite authority to do so

Elements of Attempt

1. Identification

2. Intent to commit a crime

3. Commits an act which is a “substantial step” toward that crime - more than mere preparation

Elements of Conspiracy

1. Existence of an agreement to commit an unlawful act

2. Defendants knowingly and intentionally became members of the conspiracy

3. The commission of an overt act that was committed in furtherance of the conspiracy

Pinkerton Rule

Each conspirator is liable for what the others do, so long as two things are true:

1. The act was reasonably foreseeable; and

2. The act was in furtherance of the conspiracy

Wharton’s Rule

A rule that bars a conviction for conspiracy to commit a crime that by definition can be committed only by two people acting together, such as bigamy, prostitution, or dueling.

Elements for Joining Ongoing Narcotics Conspiracy

1. That there was a conspiracy,

2. That the defendants knew about the conspiracy, and

3. That the defendants intentionally joined the conspiracy.

Elements for Soliciting a Felony Involving Violence

• With strongly corroborative circumstances, that a defendant intended for another person to commit a violent federal crime, and

• That a defendant solicited or otherwise endeavored to persuade the other person to carry out the crime

• Can be incomplete

• One-half the sentence

Elements of Murder for Hire

• The defendant solicited another to use, or cause another to use, a facility of interstate commerce with the intent that a murder for hire be committed, and

• That he actually intended another to commit the offense, as evidenced by strongly corroborative circumstances

• Can be an incomplete crime

• No economic agreement is required

Solicitation

• The defendant is liable as a principle if they “counsel, command, induce, or procure” a crime

• The crime must be completed

• Faces the full penalty