Criminal Law

crimlaw

Why might arrests not be made?

police might doubt authenticity, inadequate resources, improper factors (such as victim’s social standing), insufficient evidence, prosecutor must overcome various hurdles before trial can be held

What is proof of guilt at trial?

beyond a reasonable doubt, enforcing the presumption of innocence

jury nullification

jury has raw power to acquit for nay reason, even if prosecution proves all elements beyond a reasonable doubt

what might jurors consider in jury nullification?

personal characteristics of ∆, degree of harm caused by ∆, jurors’ belief that victim was partially at fault for offense, morality, belief that ∆ had been punished enough

What questions must. be decided before punishment?

1. should one be punished?

2. what type of punishment?

3. how much punishment?

2 dominant theories of punishment

retributive and utilitarian

utilitarian justification

punishment justified b/c brings benefit to society

retributive justification

people are punished b/c they deserve it

general deterrence

(utilitarian) Lesson to others as if others see one is punished then they are deterred from doing action that creates punishment

specific deterrence

(utilitarian)

1. Incapacitation: puts criminals out of general circulation

2. Individual deterrence: one may not commit a crime again b/c they know what it feels like to be punished

rehabilitation

punishment will reform people to make them less likely to break the law —> could help criminal so they will not want to commit crimes anymore

2 constitutional boundaries on punishment

8A and 14A

8A

cruel and unusual punishment (punishment should be graduated and proportioned to the offense AND evolving standards of decency matter)

14A

nor shall any state deprive any person of life, liberty, or property without due process of law

makes 2 bounds on state’s ability to punish

1. BOR enforceable against states b/c selective incorporation

2. BARD proof requirements

legality elements of criminal statutes

• conduct must be defined

• must be clear

statutory interpretation guide

• determine ordinary meaning

• determine legislative intent

• prohibition (?)

• apply the rule of lenity

• (make a presumption of constitutionality throughout)

statute fails if…

• overbroad

• vague

• ex post facto

• discriminatory

• impossible

• status offense

rule of lenity

when law is unclear of ambiguous, court should apply it in ∆’s favor

actus reus

voluntary, volitional act

what are the parts of a crime?

• actus reus

• mens rea

• causation

what is required for a voluntary act for actus reus?

conscious thought, premonition, willfulness (voluntary ≠ intentional causing of a crime)

does the law normally punish omissions?

no, because non-acts are more ambiguous than wrongdoings —> punishing omitters increases risk of convicting morally innocent persons, well-meaning bystanders can make the situation worse, line drawing problems/hard to administer, people might not actually have any ill will

5 situations when a failure to act make constitute the breach of a legal duty (only omission liability when there is a duty)

1. statute imposes duty of care

2. relationship between actors imposes duty

   1. doctor-patient, lawyers, lifeguards, teachers and others affected by mandated report

3. contact imposes duty

4. person voluntarily assumes care of another, secluding the helpless person

5. creation of peril

*duties can fall into multiple of these categories simultaneously

social harm

negation, endangering, or destruction of an individual, group, or state interest, which is deemed socially valuable

attendant circumstances

constitute part of the actus reus of every offense, condition tha tmust be present in conjunction with the prohibited conduct or result to constitute the crime —> actus reus does not occur unless attendant circumstances are met

conduct crime

specify conduct and social harm itself, mostly because the mens rea that attaches —> prosecutors must prove each element BARD

mens rea

the culpable state of mind for a crime, must be proven beyond a reasonable doubt, ensures conduct is morally blameworthy

MPC mens reas

purposely, knowingly, recklessly, negligently

purposely

aware of nature of conduct / existence of attendant circumstance; aware that result will come about or is practically certain (trying to commit harm or do harmful thing)

knowingly

if a result crime, then aware that it is practically certain that the conduct will cause such a result. If attendant circumstances required, then aware of those (if you can foresee the harm or are aware of attendant circumstances)

recklessly

Consciously disregards a substantial  and unjustifiable risk that the material element exists or will result from his conduct / gross deviation from standard care (distinction between risk and relative certainty, reckless is knowing there is a risk but still doing it anyway, might not KNOW the result will occur but can acknowledge there is a chance, MUST BE UNJUSTIFIED AND SUBSTANTIAL)

negligently

Ignores a substantial and unjustifiable risk of which she should be aware. Here, the offender ignores or fails to perceive the risk (reasonable person should appreciate the risk, but you did not)

wilful blindness

Purposeful ignorance of a fact that is highly likely to be true (knowingly)

deliberate ignorace

Where an individual has high suspicion of the fact that he is committing a crime, but avoids discovering actual knowledge of this fact in order to avoid criminal responsibility

what does mens rea attach to in MPC state?

mens rea attaches to every element in the whole statute —> prosecutor must prove that ∆ committed each material element of charged offense with particular state of mind

transferred intent

meant to cause a certain kind of social harm, but unintentionally harms a different person → intent to hurt the intended victim is “transferred” to the actual victim, allowing them to be held liable for the harm caused to the unintended victim

what jurisdictions recognize wilful blindness?

MPC does and most jurisdictions do

what to do if there are problems with figuring out mens rea?

use statutory interpretation to figure out legislative intent

what is the default mens rea for state and municipal governments?

at least reckless

strict liability offenses

no mens rea required, might want a strict liability offense when…

• When you want to regulate conduct not consequence

• Severe consequences

• Consult dictionaries and grammar

• Prior court convictions

factors to weigh when there is NO mens rea in specified statute

Strict Liability

• Carries a lower penalty, often a fine

• Regulates dangerous conduct

• Presents a low chance that it will capture innocent conduct

• Typically involves low stigma and no reputational damage

Must determine the mens rea

• Common law crime, had a common law antecedent with a mens rea

• Carries a high penalty or high term or incarceration

what happens if a statute does not specify a mens rea?

this does not mean that there is no mens rea

• ALWAYS impute a mens rea if common law and there was a common law antecedent with mens rea

• MPC normally favors a mens rea too (at least reckless)

mistake of fact

A mistaken belief regarding some material event, belief, or circumstance which may negate a specific element of a criminal offense or warrant equitable rescission or reformation of a contract

When is a mistake of fact a defense?

Mistake of fact is a defense where it negates a specific element of the offense, such as a future intent. In that case, it does not matter if the mistake is reasonable. (HOWEVER, at common law, only a reasonable mistake of fact exculpated a defendant)

legal wrong doctrine

 if ∆’s conduct is based on facts that he reasonably but mistakenly thought, attendant circumstances attach and ∆ can be punished for more serious crime (example: walking through school zone unknowingly with drugs, not just charged for possession but charged for possession in school zone)

mistake of law

A misunderstanding or mistaken belief that occurs when a person, with complete knowledge of the facts, reaches an incorrect conclusion as to the legal effect or result

a mistake of law is not a defense unless…

• It negates high mens rea specified by statute (if there is a high mens rea, it must be proven that the actor has some appreciation of wrongfulness or illegality)

• Law defining offense is not reasonably available in advance

• ∆ acts in reasonable in reliance on official statement of law, afterward determined to be erroneous in certain specified official forms

• There is a lack of fair notice- whether law was made public, whether it was not accessible to the public

*the common law version negates mens rea element of a historical specific intent offense, resembles mistake of fact

intent in statutes

common law definition, person not only meant to cause results that are conscious objectives of the actors but also those results that actor knows are practically certain to occur from his conduct

general intent

mens rea, intent to commit crime, culpable state of mind

what are the two types of causation?

actual and proximate cause

how do you prove actual cause?

• but for causation (main test)

• substantial factor test

  • one wrongdoer and some other intervening force, or two wrongdoers

    • weather

    • act of god

    • some other conduct

acceleration

any acceleration in death or harm caused by subsequent defendant that speeds up effects of primary defendant’s actions is causation (does not matter that the second act was nonlethal, still becomes cause of death)

contribution

second defendant’s actions contribute to cause harm, but does not necessarily accelerate any occurrence

purpose of proximate cause

serves purpose of determining who or what events among those satisfy the but-for standard should be held accountable for resulting harm

apparent safety doctrine

once a victim endangered by defendant’s conduct reaches a place of apparent safety, defendant is no longer responsible for any subsequent harm

why is proximate causation necessary?

it is important so we do not hold those accountable/responsible for crimes when chains between the defendant’s acts and victim are broken.

when might actual cause NOT be the proximate cause?

• intervening superseding cause

  • coincidental

  • responsive

• victim attained apparent safety

• de minimis causes

• there is a free, deliberate, and informed human intervention

• act does not achieve intended consequences (intended consequences rule)

*none of these five factors are dispositive —> it is a weighing test

intended consequences rule

if consequence intended and one that actually happened belonged to same genus then ∆ should not be able to escape criminal liability even if unforeseeable event intervened

homicide framework

1. Was victim a living human at time of D’s actions?

2. Is victim now deceased?

3. Did another person cause their death?

4. Murder? If so, what degree?

5. Some other kind of unlawful homicide? What kind?

6. If neither → lawful homicide

What separates murder from manslaughter?

malice

common law murder

the unlawful killing of another human being with “malice aforethought”

what is malice aforethought in common law murder?

• intent to kill

• intent to cause grievous bodily harm

• depraved heart murder

• intent to commit felony

intent to kill

awareness that the death of another would result from one’s actions, even if the actor had no particular desire to achieve such a consequence

intent to cause grievous bodily harm

knowledge that the conduct would cause serious bodily injury was generally assimilated to intent and deemed sufficient for murder if death of another actually resulted (not recognized in MPC, but goes to show recklessness and disregard for human life)

depraved heart murder

extreme recklessness regarding homicidal risk

intent to commit a felony

strict liability for homicide committed during the commission of a felony

common law manslaughter

homicide without malice aforethought (and without justification or excuse?) (no grading significance)

voluntary manslaughter (provocation)

Elements of provocation → needed to negate malice and support manslaughter

• Provocation- inflame passion of reasonable person, words generally not enough (would allow many killings between domestic partners to be mitigated to manslaughter)

  • Provocation must be sufficient to make a reasonable man in like circumstances act as ∆ did

• Sudden heat of passion: act must be during passion

  • Can be anger, vehement excitement, jealousy, resentment, terror

• No cooling off period: any period for reflection after provocation negates the passion

  • Provocation defense unavailable to ∆ who kills victim after he has a reasonable opportunity for the passion to cool (reasonable person in ∆’s situation would have calmed down)

• Causal connection: provocation must cause heat of passion which in turn must cause fatal act

are words enough for provocation?

no, not generally, unless they are accompanied by conduct that demonstrates intention and ability to cause bodily harm

When is provocation allowed?

• Must be enough to arouse passions of a reasonable person in ∆’s shoes

  • Cannot be idiosyncratic or strange frailty of ∆

  • Cannot be ∆’s lower capacity for self-control

  • Considers a reasonable person in ∆’s circumstances

What are common law examples of provocation?

interrupting acts of infidelity, assault or battery by victim, injury or assault of a loved one

Who decides whether there is adequate provocation?

juries

involuntary manslaughter (negligent homicide)

∆ is not aware of risk of death but should be aware of it, and ∆’s failure to exercise care is actual and proximate cause of death (an act that is insufficiently reckless or negligent to constitute depraved heart murder but exhibited culpability greater than civil negligence could give)

1st degree murder

premeditated (thought about in advance), deliberate (death was intended), malice (with ill-will not in presence of provocation), willful (voluntary)

How long does premeditation have to be for first degree murder?

must be opportunity for conscious reflection on intention to kill after the intent is formed by ∆ for premeditation

6 factors courts look at to determine whether killing was premeditated and deliberate

1. Lack of provocation from victim

2. The actions and words of the ∆ before and after the killing

3. Any threats on the part of ∆ before or during killing

4. Whether victim and ∆ has a poor history

5. Whether there was an additional lethal attack after victim was helpless → many wounds on victim is circumstantial evidence of deliberation and premeditation

6. Evidence of brutality

2nd degree murder

wilful, malice aforethought (express malice or implied malice)

implied malice

high degree of reckless indifference to value of human life, abandoned and malignant heart, high probability of death, or deliberate indifference

statutory manslaughter

the unlawful killing of a human being without malice (provided grading differential between voluntary and involuntary manslaughter)

voluntary manslaughter

upon a sudden quarrel or heat of passion

involuntary manslaughter

in the commission of an unlawful act not amounting to a felony, or in the commission in an unlawful manner, or without due causation and circumspection, of a lawful act which might produce death

moral penal code murder

criminal homicide committed purposely, knowingly, or recklessly, and under circumstances manifesting extreme indifference to value of human life

moral penal code manslaughter

criminal homicide committed recklessly and without circumstances manifesting extreme difference to value of human life or under the influence of extreme mental or emotional disturbance, provided there is a reasonable explanation for the disturbance

extreme emotional disturbance

• reasonable by viewing subjective internal situation of ∆

• reasonable according to external circumstances as ∆ believed them to be at the time, regardless of how unreasonable that belief may have been

• takes us out of strict and narrow reasonable person standard

• cooling off period not relevant in this doctrine

felony murder rule

A killing that occurs during the commission or attempt of a felony. The law imputes malice on D due to underlying felony. Most jurisdictions only include inherently dangerous felonies.

3 considerations to see if felony murder is supported

1. Does it merge?

2. Was killing in course of or commission of felony? (res gestae)

3. Which felonies are adequate to support felony murder conviction (can be statutory or common law?)

What are the two theories of felony murder?

1. Proximate cause theory (minority): felon is liable for any death, regardless of who caused it, if death was reasonably foreseeable result of felony

2. Agency theory (majority): a felon is liable only for deaths caused by felon or someone acting as the felon’s agent

merger doctrine

if felony so overlaps with the thing that caused death, then two counts merge, if you can find a distinct and separate purpose of underlying crime that does not support bodily harm then can probably merge crimes

year and 1 day rule

A person cannot be convicted of homicide if it occurred more than 1 year and a day ago → this rule is NOT followed anymore as there is no time limit on causation

lesser included offenses

in some jurisdictions, one charged with higher offense (1st degree murder) is entitled to jury instruction regarding lower offense (2nd degree murder) if evidence introduced at trial allows jury to rationally conclude ∆ only did lower offense

What can intent to cause grievous bodily harm show in the MPC?

Intent to cause grievous bodily harm can contribute to the evidence for disregard for life

4 modes where felony murder can be found

• Limited to felonies at common law

  • There were only a few felonies at common law and these were punishable by death

  • Want to consider statutes of legislature

• Inherently dangerous

  • To human life (abstract approach)

    • In the abstract

    • Look at the definition, or the elements- can it be committed without danger to life? If not, it is inherently dangerous and can qualify for felony-murder

  • Inherent danger (circumstantial approach)

    • Look at conduct of case in front of you- does not matter if it does not generally cause harm- if the manner in which this specific defendant caused the harm was inherently dangerous, then can qualify for felony murder

• Statute names the felonies

  • Normally limited only to named felonies

• All felonies support felony murder

res gestae requirement for felony murder

• the acts committed before, during, or after the crime or acts are so closely connected with the occurrence to form, in reality, a part of it

  • Consider time, distance, proximate cause, third party doctrine (agency and proximate cause approaches)

  • Post felony death falls within res gestae of murder → as long as the act causing death occurred during the res gestae of the underlying felony

common law rape

sexual intercourse by a male with a female not his wife, without her consent

elements of rape

sex, force, against will of victim (no consent), mens rea element

marital immunity

under common law, man was immune from conviction for rape of his wife → this rule is not generally followed anymore

3 ways to make consent known for sexual intercourse

1. Verbal or physical protest

2. Assume non-consent unless there is clear affirmative permission

3. Silence and passivity can either imply consent or non-consent, depending on the circumstances

consent element/against her will

• If consent was given:

  • What did the partner consent to?

  • How was the consent obtained?

• If consent was not given of if the evidence is in conflict:

  • Does mens rea extend to the element of non-consent?

  • If so, what mens rea?

  • Does a reasonable and honest belief of consent negate the mens rea?

  • What about a mistake of fact?

  • Should ∆ ‘s intoxication matter to reasonable belief or mistake?

  • Partner intoxication vitiate consent?

fraud in the factum

• Act performed is different than the act for which consent was given.

  • Example: when patient agrees to gynecologist exam and the gynecologist penetrates her

fraud in the inducement

• Information or facts necessary to obtain consent were fraudulently represented. The victim would not have consented if they knew the truth. 

  • Boro v. Superior Court: when ∆ called victim and said she had a fatal disease that could only be cured if she had sex with him → question of consent was not decided because she did technically consent to sexual intercourse…