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I. Introduction A. Pretrial procedures a. Misdemeanorcharging document is a complaint b. to show probable cause, obtain a warrant, then arrest. If there is no warrant, has to show probable cause in a post-arrest hearing. If there is probable cause, is bound-over for trial. c. Grand jurya group of laymen brought together to hear evidence and issue indictments. They have the ability to subpoena witnesses and such, which the prosecutor cant do. d. Informationin lieu of a grand jury, a prosecutor may charge on an information. However, most states still permit a to request a grand jury. e. The charge identifies the violation and alleges facts. may plead guilty or not guilty. Guilty is a voluntary admission by of his guilt. Not guilty leads to trial. f. may challenge the legal sufficiency of a claim on three grounds: i. The crime charged is not a violation of the law in the jurisdiction ii. Facts alleged, even if true, do not constitute the crime charged iii. No jury could justifiably find the facts charged based on the evidence offered at the preliminary hearing. g. Waivable right to a jury trial for any crime carrying a sentence >6 months. h. 6th Amendment gives the right to a jury trial in all criminal cases, and was brought through the 14th Amendment in Duncan v. Louisiana. i. Burden of Proofdetermines who must prove guilt or innocence. i. Innocence presumed ii. Burden of productionburden to provide evidence in a prima facie case iii. Burden of persuading fact finder the evidence warrants accepting or rejecting a claim. j. Trial procedure: i. Judge and lawyers select a jury 1. Voir direprocess by which juries are selected 2. Means to see, to speak ii. Judge re-reads the complaint and determines that does plead guilty iii. Preliminary motions iv. Opening statements ( may postpone till the closing of s case) v. calls witnesses, crosses vi. At close of s case, D may move to dismiss based on no reasonable fact finder could find guilty beyond a reasonable doubt on the evidence presented. vii. If vi fails, presents case and witnesses, which may cross and give rebuttal evidence.

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Murphy 2 viii. may present sur-rebuttal evidence to s rebuttal evidence. ix. Close and rest x. Judge (in a bench trial) / jury deliberate. Jury gets pattern instructions from judge. 1. OUJIOklahoma Uniform Jury Instructions xi. Jury comes to a verdict, or theres a mistrial if theyre hung. xii. Sentencing either by judge or by special sentencing trial. xiii. Appealsubstantive issues 1. Charge convicted was not a crime 2. Not all necessary elements of the crime were alleged 3. Insufficient evidence 4. Improper jury instructions Criminal law derived from a. Statutemost is from statute, which courts may interpret broadly but not overrule. i. 1962 American Law Institute created the Model Penal Code, a comprehensive reformation of the principles of criminal liability from previous codes, scholarly commentary, and decisional law, which has been adopted in most states. b. PrecedentRule of law paramount, even with dissimilar fact patterns. Stare decisis. c. ConstitutionsState law cannot violate or contradict the federal constitution. Where it might, courts may strike it down or they may interpret it so that it doesnt violate anything. DP clause creates the requirement of proof beyond a reasonable doubt. Liability a. Issues with liability: i. Scope of legality b. MPC schemean offense is committed when an actor completes all the required elements, such as actus reus and mens rea. At least one objective element, such as conduct, circumstances, or result required. Objective elements have corresponding culpability requirements. c. Principle of legalitycriminally punishable conduct should be specified in advance; no law, no crime. d. Strict Liabilityliability without fault: i. Substantive strict liabilityliability without moral fault ii. Pure strict liabilityliability without any culpable mental state as to any of the objective elements of the crime iii. Impure strict liabilityliability without culpable mental state as to one or more objective elements of the crime iv. MPC-- 2.05, 1.04(5), v. Alan Michaels test for strict liabilitySL is only constitutional when intentional conduct covered by the statute could have been made criminal by the legislature. Punishment must be predicated on a voluntary act or omission covered by the statute.

B.

C.

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vi. Due Process proscribes SL for certain crimes vii. CritiquesPacker says SL dilutes criminal sanctions by removing the moral disapproval aspect. Hart doesnt like how it sanctions the morally blameless (is this merely a cost that must be paid?). viii. No culpable mental state at all must be shown it is enough that D performed the act in question, regardless of his mental state. D. Purposes of Criminal Law a. PunishmentMoral judgment b. Deterrence i. SpecificKeep that offender from committing another crime ii. GeneralUse one persons actions to convince others not to do the samedeath penalty (but that doesnt really work). c. Retribution i. lex talioniseye for an eye d. RehabilitationTeach prisoners how to work instead of commit crimes e. IncapacitationKeep them from committing crime again f. DenunciationMoral judgment for one from society g. Seven conditions in just punishment: i. Past ii. Voluntary iii. Bad iv. Conduct v. Specified vi. In Advance vii. By Statute h. Two kinds of lawsmalum in se and malum prohibitum. i. In se are those crimes that are inherently bad, like murder. 1. It is dangerous in itself. ii. Prohibitum are those crimes that are crimes because the legislature says they are, like polygamy. 1. It is not dangerous in itself, but simply in violation of a public-welfare regulation II. The Criminal Act A. A criminal act will contain four elements: a. Mens reaGuilty Mind, meaning the requisite mental intent that is either expressly written or implied in a criminal statute. i. MPC has four kinds (p. 217 CHART): 1. Purposely Most Culpable 2. Knowingly 3. Recklessly 4. Negligently Least Culpable

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Murphy 4 ii. MPC Chart: A person is not guilty unless he acted purposely, knowingly, recklessly, or negligently with respect to each material element of the offense.

Purposely

Knowingly

Circumstance He is aware of such circumstances or hopes they exist. He is aware that such circumstances exist. He consciously disregards a substantial and unjustifiable risk that the material element exists. He should be aware of a substantial and unjustifiable risk that the material element exists.

Type of Objective element Result It is his conscious objectto cause such a result. He is aware that it is practically certain that his conduct will cause such a result. He consciously disregards a substantial and unjustifiable risk that the material elementwill result from his conduct. He should be aware of a substantial and unjustifiable risk that the material elementwill result from his conduct.

Conduct It is his conscious object to engage in conduct of that nature. He is aware that his conduct is of that nature. Gross deviation from the standards a law-abiding citizen would adopt in the same situation. Ditto.

Recklessly

Negligently

iii. US v. BalintUS 1922p. 185Taft says that the person in the best position to find illegal booty may be held criminally liable for selling the booty, even if he didnt know it was there. Even lacking the element of scienter, knowledge, the nature of the evil is great enough that it must be punished. iv. US v. DotterweichUS 1943p. 189Frankfurter says a company owner who ships adulterated goods may be held liable, even without scienter, because the balance of his personal matter of guilt against the public interest in safety is tipped in the publics favor. He has the best chance to catch the adulteration, and there is no mens rea required. v. US v. ParkUS 1975p. 192similar to Dotterweich, the Court holds that as consumers are largely without protection, it is up to the sellers to make sure the food they sell is safe. Gives responsibility without awareness. Public interest v. burden on distributors. vi. Morrissette v. USUS 1952p. 193KnowinglyWhere a person in good faith mistakenly steals, thinking the property is abandoned, he cant be held liable because he lacks the requisite mens rea of theft, which is to intentionally deprive another of his rightful property. 1. Allows a court to interpret a statute that has no express intent to have whatever intent is best suited to the crime committed. vii. US v. X-Citement VideoUS 1994p. 195Rhenquist says that where one aspect of mens rea is enumerated in part of a statute, that mens rea may be implied to apply to all aspects of the statute.

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Murphy 5 1. Morrissette and X-Citement look at the nature of the evil being questioned; stealing junk v. kiddie porn. Public welfare offense. viii. US v. Central District of CA9th 1988p. 196A possible defense is that did not know and could not possibly know the age of the child actor. (Traci Lords). ix. US v. FreedUS 1971p. 197Courts are more likely to lessen the level of mens rea required where the offense endangers public welfare, like possession of hand grenades. x. People v. DillardCA Ct App 1984Strict liability where a person carries a loaded gun in public, thinking it isnt loaded, because its a public safety issue. xi. Regina v. FaulknerIreland 1877p. 202Multiple culpable states of mind may be present in a single criminal act. b. Actus reusThe voluntary physical act of the crimeattempt, complicity, conspiracy, theft, rape, omissions, etc. i. The Requirement of an actus reusProctor v StateOK 1918 p. 114Keeping a place with the intention of selling alcohol Galbraith says that a crime cannot lie for intent without action. 1. Prohibiting the act is constitutional; prohibiting the intent is not. 2. There must be an affirmative act or omission ii. OmissionsJones v. USUS 1962p. 121failure to act may constitute a breach of a legal duty in following situations: 1. Where statute imposes a duty of care for another 2. Where one sustains a certain status relationship to the other 3. Where one has assumed a contractual relationship to care for the other 4. Where one has voluntarily assumed care for the other, and so secluded that other to prevent aid from others 5. If the danger is created by the would-be rescuer a. Misprision of felonycrime not to report knowledge of a crime about to be committed. i. Prosecutors are reluctant to use this most of the time, but Michael Fortier was charged with this for failure to disclose McVeigh. ii. CLLaw imposed a duty on to disclose or report knowledge of a felony ASAP to law enforcement. iii. Requirement of VoluntarinessPeople v. NewtonNY 1973 p. 125WeinsteinThe actus reus should be an act of will. Here, a passengers unintended and forced arrival in a certain

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Murphy 6 jurisdiction should not subject that person to its laws for his previous actions. Martin v. StateAL 1944p.127SimpsonFor a person to be subject to a law prohibiting public drunkenness, he must be in the public voluntarily. 1. MPCliability requires a voluntary act. 2.01 p.128, 132. People v. GrantIL 1977p. 128Reardon says a person who has a condition that makes him unaware of his apparently voluntary actions may escape liability if he didnt bring the attack on himself and he was actually unaware of the actions. Automatism case. People v. DecinaNY 1956p. 135Asks whether the person knew he had a potentially dangerous condition, and then asks whether he should have known. 1. If you can anticipate your involuntary actions, then you can be liable for them. The Prohibition of Status CrimesRobinson v. California US 1962p. 137StewartA statute that makes addiction a crime is unconstitutional. It doesnt punish them for doing the drugs; it punishes them for having the status of addict, and are thus prosecutable at any time prior to reformation. Cruel and unusual punishment. 1. Only the third time punishment had been invalidated for being cruel and unusual until Furman v. Georgia. a. Cruel and unusual punishment is evaluated according to evolving standards of common decency. 2. The Fifth Amendments prohibition on selfincrimination only applies to testimony, not being forced to show track marks. 3. Rationales: a. Involuntary conduct cannot be punished b. Punishment must be for past, not future conduct. 4. Powell v. TexasSC 1968p. 139Alcoholism is not an excuse for public drunkennesshe was convicted for being drunk, not being a drunk. a. Court retreats from idea of addiction as a status, because alcoholism is a kind of addiction. So look to the statute to ultimately determine legality. Johnson v. StateSC FL 1992p. 143Harding Legislature punishing those who give drugs to others was not intended to punish crack addicted mothers who give their newborn babies crack before the umbilical cord is cut. The

iv.

v.

vi.

vii.

viii.

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Murphy 7 intent of the legislature doesnt fit this interpretation of the statute. ix. LegalityCommonwealth v. KellerPA 1964p. 148 GatesWhere a crime doesnt have any statutory basis, but it would be a crime at common law, a state may prosecute based on that. The country is based on common law, and the act violated community standards of decency, morality, and economy. 1. PA had an incorporation statute, which stated that every offense punishable by statute or common law but not specifically enumerated was still a punishable offense. x. Keeler v. Superior CourtCA 1970p. 154Mosk Where a man beats his pregnant wife and kills the baby, he is not liable for murder because the statute did not intend inwomb babies as people. Therefore, if he was prosecuted under this interpretation, he has Due Process issues because he lacked adequate notice of the illegality of his conduct. xi. SpecificityCity of Chicago v. MoralesUS 1999p. 162 StevensUsing an unusual definition of loiter in the statute imparts sufficient vagueness to conflict with Due Process. There is no notice, it allows for arbitrary enforcement, destabilizes the social order, and can destroy liberty. c. Synchronicity of a and bThe two happen together1) there must be concurrence between Ds mental state and the act; and (2) there must be concurrence between Ds mental state and the harmful result, if the crime is one defined in terms of bad results. d. CausationThe prosecution must show that the defendants actus reus caused the harmful result, in two different senses: (1) that the act was the cause in fact of the harm; and (2) that the act was the proximate cause (or the legal cause) of the harm. i. Two ways in which an act can be the cause in fact of harm: (1) by being the but for cause of the harm; and (2) by being a substantial factor in creating the harm. These categories overlap, but not completely. ii. It is not enough that Ds act was a cause in fact of the harm. The prosecution must also show that the act and harm are sufficiently closely related that the act is a proximate or legal cause of that harm. This is a policy question: Is the connection between the act and the harm so stretched that it is unfair to hold D liable for that harm? e. ELEMENTS OF AN OFFENSE = MENS REA + ACTUS REUS + ATTENDANT CIRCUMSTANCES + CAUSATION + HARMFUL RESULT AFFIRMATIVE DEFENSES

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III. The Guilty Mind A. Specific and General Intent a. General Intentintent to do a certain act, which may transfer to another act. A general intent to do some crime made the actor responsible for all crimes committed. He was responsible for the act and its unintended consequences. i. General intent crimes do not contain the elements of mens rea in the statutory definition, so the judge usually has to make the call. ii. May also refer to the defendants blameworthiness. iii. May also refer to the intended natural and probable consequences of the crime. iv. Negligence or recklessnessMPC commentary, p. 281. v. State v. NeuzilIA 1999p. 223Stalking offense does not require the specific intent to provoke fear, only the general intent to engage in conduct that has that effect. b. Specific Intentintent to do a certain specific act, which may not transfer to another act. Some acts are not wrong unless committed with a certain intent. i. May also refer to the mental element of the crime ii. Or the unexecuted intent to commit a crime iii. May refer to the specific intended result of the crime, meaning knowledge or purpose iv. Purpose v. Specific intent crimes: 1. All offenses explicitly so defined by statute, they have the requisite mens rea defined, which is often purpose. 2. All attempts 3. Any other crimes, like burglary and larceny, for which CL defined an intent element. c. United States v. Jewell9th 1976p. 219Deliberate avoidance of positive knowledge of a crime is equivalent to knowledge. Willful blindness will not excuse. i. MPC-- 2.02(7)Knowledge is established if the person is aware of a high probability of the existence of a particular fact of a criminal offense, unless he actually believes it does not exist. d. Regina v. PrinceCrown Case 1875p. 223A guilty mind, required for a crime, may be implied in the act, even if it is not overt. i. Idea that even though the conduct was mistaken, the immorality of taking an underage girl from her father is sufficient for a crime. e. People v. RyanNY 1993p. 230proof of mens rea was not adequate where the statute prohibited possession of the hallucinogenic element, which was not easily determined from the weight of the

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mushrooms he had. There was no legislative intent to make the weight of the drugs SL. A. Mistake of Law or Fact f. Look at the effect of the particular mistake on Ds mental state, and examine whether he was thereby prevented from having the mental state required for the crime. g. Ignorance of the law is no excuse, but mistake of fact and ignorance of the deed can, in certain situations. i. The fact that D mistakenly believes that no statute makes his conduct a crime does not furnish a defense h. With a specific intent aspect of a crime, mistake of fact may be an excuse, if it removes the requisite intent. i. Ex: X breaks and enters Ys home, intending to take something he mistakenly believes is his (even though it really belongs to Y). X will not be guilty of burglary, even though he broke into a dwelling and committed a felony, because he did not intend to commit that felonyhe intended to take something that was his. i. Governing law is that law which defines an offense. Non-governing law is that law which is imbedded in the meaning of a particular circumstance element, but isnt the law under which is being charged. j. Under MPC 2.04(3), (NOT adopted in most states!), a belief that conduct is not an offense is a defense when based upon conduct when: i. The statute or whatever defines the offense has not yet been published or is unavailable prior to the offense ii. The actor acts in reasonable reliance on a statute or whatever that is afterward determined to be invalid. iii. The burden of proof in mistake of law is on the defendant. k. United States v. LearnedMI 1870p. 245Longyear Defendant was presumed to know the law and how it applied; just because they thought the law was one way doesnt make it the right was; no man may construct the law for himself. l. People v. BrayCA 1975p. 248BrownMistake of nongoverning law. Felon in possession of a firearm, who no one really thought was a felon, ignorance of the law of whether he was a felon excuses him of the charge, brought under the law about felons with guns. m. United States v. Baker5th 1986p. 252The claim that didnt know the conduct is criminal is not sufficient to excuse the act. Not knowing the law is not an excuse. There was no suggestion that knowledge that the act was criminal was required. n. Hopkins v StateMD 1950p. 254Where the state attorney tells someone that his actions will be legal, and they arent, ignorance of the law is still not an excuse.

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Murphy 10 o. Cheek v. USUS 1991p. 255WhiteSupreme Court decides that some offenses, like complex tax offenses, do require proof of knowledge of governing law. p. Mistake of law as an excuseLong v. StateDel. 1949p. 264 A man convicted of bigamy after an attorney gave him incorrect advice, he appealed the denial of the existence of the consultation as evidence for the jury. The court awarded a new trial, because a good faith consultation with erroneous advice may be a defense. i. He was aware his conduct could constitute a crime, so he took steps to avoid breaking the law, and relied on the advice. q. Commonwealth v. TwitchellMA 1993p. 269Wilkins Christian Scientists who relied on statements quoted from the State Attorney General were still liable for an omission that led to their sons death, although they claimed it was inadequate notice. i. They relied on a statement that said negligent failure to care for a child could be excused, but this was wanton and reckless disregard of the common law duty to provide care for a minor child. r. Hendershott v. The PeopleCO 1982p. 273QuinnEvidence of mental defect may be entered in a case to help disprove the elements of mens rea, because to refuse to allow it is deprivation of the defendants right to counter proof beyond a reasonable doubt, a due process issue. s. State v. CameronNJ 1986p. 279Clifford--drunkenness is not an absolute defense, but it may be used for defensive purposes. Evidence of extraordinarily great prostration of a persons facilities is required. Here, she was sober enough to know what she was doing. t. Montana v. EgelhoffUS 1996p 284GinsburgPlurality opinion that said a Montana statute that prohibited voluntary intoxication as something to take into account when determining mens rea was unconstitutional because it presumed culpability rather than innocence.

IV. Causation by Omission: Duties a. People v. BeardsleyMI 1907p. 337McAlvayMan went on bender with slut, she took some morphine tablets, he had to get rid of her before the wife came home, so he left her with a friend in his basement and she died. However, he had no duty to get her help because there was no legal duty because there was no contract, no special relationship, and no custody. b. Commonwealth v. CaliMA 1923p. 342When someone has the ability to stop a fire, etc., he has a duty to put it out. c. Palmer v. StateMD 1960p. 343Where boyfriends discipline of defendants child was so outrageous as to put any reasonable person on alert that the childs life was in imminent real peril, failure to removed the child from that danger is gross and criminal negligence.

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d. State v. LeggOH 1993p. 344where a foreseeable risk of injury is present, a guardian must remove the child from that risk. V. Homicidep. 347 a. Common Law had two categories of homicidemurder and manslaughter. i. MurderThe killing of another human being with malice aforethought. 1. Murder Statutes are pages 349-360. 2. Malicean intention to cause or a willingness to undertake a serious risk of causing the death of another, when that intent or willingness is based on an immoral or unworthy aim. a. Express Maliceintentional and unmitigated b. Implied MaliceWhere the defendant does not intend to kill, but does intend to inflict serious bodily harm, acting in a way that exhibits extreme recklessness or indifference regarding that severe risk of harm. c. Malice may be implied when the defendant causes the death of another human while committing certain dangerous felonies, even when the intention is not to harm the deceased. In many jurisdictions, this is the felony murder rule. 3. 2nd Degree lacks premeditation or reckless indifference. 4. Intent-to-kill murder; a. D has the desire to bring about the death of another. b. The requisite intent to kill may exist even where D does not bear any ill will towards the victim. (mercy killing) c. May be involuntary manslaughter 5. Intent-to-commit-grievous-bodily-injury murder; 6. Depraved heart (a/k/a reckless indifference to the value of human life) murder; a. D acts with such great recklessness that he can be said to have a depraved heart or an extreme indifference to the value of human life. 7. Felony-murder, i.e., a killing occurring during the course of a dangerous felony. a. There must be a causal relationship between the felony and the killing. b. First, the felony must in some sense be the but for cause of the killing. c. Second, the felony must be the proximate cause of the killing.

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Murphy 12 i. Ask if the death is the natural and probable consequence of the felony ii. ManslaughterThe killing of another human being, lacking malice aforethought. 1. May be voluntary or involuntary 2. Brevis furorbrief fury that can lead to involuntary manslaughter, like when a spouse walks in on adultery. a. Circumstances under which a reasonable man would be provoked to killadequate provocation. b. The reasonable man is provoked to kill; however, the reasonable man does not actually kill. iii. Three kinds of homicide: 1. Justifiedcommanded or authorized by law 2. Excusabledefense to the homicide liability (brevis) 3. Criminalall others

b. Intentional Homicide i. Intentional Murder2nd DegreeFrancis v. FranklinUS 1985p. 363BrennanThe state bears the burden of persuasion, so jury instructions that say acts may be presumed to be the product of will are violative of due process because they shift the burden to the defendant to rebut the presumption. 1. Instead of forcing the state to prove the elements of the case, the jury instructions forced to rebut a presumption of an element of the offense 2. This is the case where a convict escaped and accidentally shot a guy through the door. 3. It was murder because he was in the illegal act of escape, but there was no malice aforethought. ii. Premeditated Murder1st DegreeUS v. WatsonD of C 1985p. 369RogersWatson killed Officer Donald Lunning after a struggle for arrest and a gun. Watsons act of standing away from Lunning after the struggle, ignoring his pleas, etc show premeditation, because he couldve escaped but stayed to kill. 1. First degree requires premeditation, and that means a lapse of time between the creation of the intent to kill and the actual event. a. This evidence must persuade, but doesnt have to compel. b. The length of time is irrelevant; there is no specific. 2. Other aspects of premeditation: a. Lying in wait b. Poison

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Murphy 13 c. Torture 3. Mercy Killingp. 377Where a elderly woman strangled her bed-ridden husband to release him from his pain, she was let go, for moral and ethical reasons. a. Mercy killings have a benevolent purpose, there is no fear of recidivism, and thus no need to deter. iii. Voluntary ManslaughterPeople v. WalkerIL 1965p. 380 DruckerIf a killing occurs during the heat of a fight, it is voluntary manslaughter and not murder. 1. Four elements: Assuming that the facts would otherwise constitute murder, D is entitled to a conviction on the lesser charge of voluntary manslaughter if he meets four requirements: a. Reasonable provocation: He acted in response to a provocation that would have been sufficient to cause a reasonable person to lose his self-control. b. Actually act in heat of passion: D was in fact in a heat of passion at the time he acted; c. No time for reasonable person to cool off: The lapse of time between the provocation and the killing was not great enough that a reasonable person would have cooled off, i.e., regained his self-control; d. D not in fact cooled off: D did not in fact cool off by the time he killed. 2. Voluntary manslaughter requires a brevis furor, which is a combination of sufficient provocation (CL was adultery and physical battery; now also extended verbal provocation [not at CL; added with Berry] and no cooling period. 3. Three Requirements of provocation: a. Sufficient provocation of b. Adequate according to reasonable man (even though reasonable men never quite killsbut he wants to) c. s action is in response to the provocation 4. Reasons to make murder manslaughter: a. Adequate provocation @ CL b. Kills in a mistaken belief she must do so in self defense c. Person kills in face of actual threat of death or serious injury by the deceased.

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Murphy 14 5. Rowland v. StateMI 1904p. 386TrulyMake haste!Where a man walked in on his wife immediately after she was in the act of adultery, and accidentally shot her instead of his intended target (her beau), he did not act in a deliberate manner to effect the death of his wife, so it was not murder. 6. Price v. StateTX 1885p. 389Positive proof of the act of adultery (walking in on penetration) is not required for brevis furor, if the defendant knows with rational certainty what is happening. a. Adultery is sufficient provocation. This is because women were originally property, and that was a trespass of the worst kind. P. 391 b. The honor defenseuntil the 1960s, some states made the murder of a wifes beau justified, and therefore wholly excusable. P. 392. 7. Cooling timeEx Parte FraleyOK CRIM 1920p. 397RichardsonWhen a mans son was killed nine months earlier, his killing of the killer is not manslaughter, because the brevis furor had time to cool. It is not a subjective question; the cooling period asks whether a reasonable man would have cooled. 8. Non-CL ProvocationPeople v. BerryCA 1976p, 402SullivanWhen wife, Rachel, torments husband, Berry, with sex and adultery and tales of Yako and her pregnancy, the incessant cruelty and teasing can be a mitigating factor when he kills her. a. Provocation mitigates a crime from murder to manslaughter. It does not justify a killing. b. Justification excuses all: i. Rightsmorally and legally justified, commanded or authorized by law ii. Lesser evilthe death of the person killed is a lesser evil than wouldve occurred had that person been allowed to live. iii. Forfeitureby attacking someone with deadly force, you can forfeit your right to live. It may be forfeited. 9. People v. TapiaCA 1988pp. 401-402; 411Two heroin addicts who were afraid their dealer was going to kill him were adequately provoked with the long-term fear

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Murphy 15 that his threats to kill the two would vest, and this fear shouldve been in the jury instructions.

10. Cultural Norms and the Reasonable PersonPeople v. WuCA 1991p. 415Where a killers cultural beliefs have deep issues about suicide, murder, and duty, those beliefs should be included in jury instructions, as they go to state of mind, premeditation and deliberation. c. Unintentional Homicide i. Involuntary ManslaughterInvoluntary manslaughter based on criminal negligence: A person whose behavior is grossly negligent may be liable for involuntary manslaughter if his conduct results in the accidental death of another person. 1. The fact that the victim was contributorily negligent is not a defense to manslaughter. 2. Negligent and Reckless HomicideCommonwealth v. WelanskyMA 1944p. 429LummusWelansky owned a nightclub, operated it without adequate exits, wasnt there but was still liable when people died during a fire. The intentional act of allowing unsafe doors was sufficient to convict him on manslaughter. a. Where there is a grave danger, that danger is known by the person who could prevent it, and that person voluntarily refrains from preventing it, that is wanton and reckless behavior, which suffices for manslaughter. b. The essence of wanton or reckless conduct is intentional conduct, by way of either commission or of omission where there is a duty to act, which conduct involves a high degree of likelihood that substantial harm will result to another. P.433 3. Involuntary Manslaughter TodayState v. Williams WA 1971p.438HorowitzMinority view that simple negligence is sufficient for involuntary manslaughter, where parents failed to get their child care for a gangrenous tooth that killed him. a. The parents were put on notice that their child needed medical attention, but they failed because they were afraid social services would take him away. b. Majority rule requires criminal negligence. 4. Hazing at A&M443; Deer Hunter Accidental Murderer 445; Valujet Crash444;

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Murphy 16 5. Vehicular Homicidep. 447State statutorily defined criminal homicide committed with the automobile, less severe than negligent homicide or involuntary manslaughter 6. Gross Vehicular Manslaughterp. 449the unlawful killing of a human being without malice aforethought, in the driving of a vehicle, where the driving was in violation of the driving under the influence statute, and the killing was the proximate result of the commission of an unlawful act. Drunk Driving. ii. Reckless MurderMayes v. The PeopleMA 1997p. 450 ScholfieldMan threw beer mug at wife, it hit her oil lamp, she burned up and died. His intent was not to kill her, but the intent to scare her shows he had an abandoned and malignant heart, which is sufficient to give rise to murder 1. You are responsible for the results, no matter what the intent, as long as there is a minimal intent to cause mischief or great bodily harm. 2. Commonwealth v. WoodwardMA 1997p. 455 Second degree murder reduced to manslaughter because defendant had no malice in the legal sense; just frustration, inexperience, and confusion. 3. Commonwealth v. MaloneRussian RoulettePA 1946p. 456Second degree murder applicable where a kid shot another in the head playing Russian Poker, because the act of pulling the trigger was intentional, even if the result of killing him was not. 4. People v. WatsonCA 1981p. 461Where a driver is extremely drunk, it can imply malice when she kills someone. iii. Homicide in the Course of Another CrimeFelony Murder 1. People v. StampCA 1969p. 463Cobey robbed a store, which made the owner die from a heart attack. a. wanted instructions regarding proximate cause. b. Any killing, even if accidental or not foreseeable, may be murder if it occurs during the course of a felony act.

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Murphy 17 2. Traditional Rationales for Felony Murder Rule: p. 468 a. The independent felony is wanton indifference of human life b. An intentional felon should be held strictly liable for any deaths that occur as a result of her actions c. Helps deter would-be criminals, by increasing risk of robbing Apu. d. Makes felons more responsible for the safety of their felonious actions, so they will be safer in the act to prevent the felony murder rule from applying. 3. State Limits on Felony Murder, p. 479: a. has to be found guilty of the underlying felony to be guilty of felony murder b. Death may have to be foreseeable, but courts are liberal in finding foreseeability. c. Hawaii requires mens rea for the murder aspect d. Some require gross recklessness relating to death, some recklessness, some negligence. 4. Two variants: a. Misdemeanor manslaughter p. 475, makes a person who intends to commit a misdemeanor dangerous in itself, or else unreasonably fails to see the risk of harm to others, and then unlawfully kills another guilty. b. Sentencing enhancementp. 478Some states use felony murder as an aggravating circumstance. 5. Foreseeability and Proximate Cause a. People v. GladmanNY 1976p.486Jasen Gladman killed Officer Richard Rose while fleeing from a robbery. Whether he was technically in flight was a decision of fact for the jury. i. Public PolicyProsecutor could get Gladman easily with 2nd degree, but he killed a cop, so they want to get him. Premeditation would be difficult to prove with the short time involved, so the idea of felony murder is perfect. ii. In felony murder, to determine when the felony ends, ask: 1. Was there a lapse of time,

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Murphy 18 2. Did the defendant reach a place of temporary safety, 3. Whether is in the same location as the felony 4. Whether he still has the fruits of the criminal act 5. Were people in close pursuit b. Immediate FlightFranks v. StateOK CRIM 1981p. 490where a robbed a supermarket and was later stopped for speeding, but not the robbery, when he killed the officer, it was not felony murder because the two actions were not connected by a causal nexus. Compare State v. Colenurg, p. 491 c. Fatal ReactionEleanor Szabickli died of a heart attack when she discovered her home ransacked, and her death was ruled a homicide. In People v. Brackett, when an elderly woman died choked to death because she was unable to eat after being raped, it was felony murder because death was foreseeable from the attack, even if that method of death wasnt specifically anticipated. P. 491. 6. Intervening Actors and Unintended Victims a. People v. HickmanIL 1973p. 492Scott Where a cop accidentally shot another cop while in pursuit of felons, the felons might be held liable under the felony murder rule for that cops death.

VI.

Capital Murder a. Historical (starts p. 509): i. First Phase: @ time of Independence until ~1850, most homicide and all murder, as well as a great number of non-violent crimes were capital offenses. 1. The automatic aspect of the death penalty in these crimes had Due Process issues. ii. Second Phase: ~1850 - 1972 (with Furman v. Georgia). 1. States and the Federal government used first degree murder statutes to decide who got death. 2. Statutes left the jury unguided as to what exactly to do. 3. Furman was a plurality opinion that said the death penalty, as currently administered, violated the Eighth Amendments bar on cruel and unusual punishment.

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Murphy 19 a. Current trends allowed for racist and capricious unpredictable sentencing. b. Marshall in FurmanCapital punishment is cruel and unusual punishment because: i. It is excessive and does not deter and therefore serves no valid legislative purpose ii. It is abhorrent to currently existing moral values. c. Brennan in FurmanFour principles to examine to decide where a punishment does not comport with human dignity: i. A punishment must not be so severe as to be degrading to the dignity of human beings ii. The government must not arbitrarily inflict a severe punishment iii. The punishment must not be unacceptable to members of contemporary society iv. Severe punishment must not be excessive or unnecessary d. Blackmun in Furman liked the result, but dissented because even though its cruel and unusual, this was judicial legislation and they should let the legislatures fix it. e. Powell in Furman dissented, saying this was usurping tons of state power. iii. Third Phase: Furman created the third (present) phase by forcing states to enact new death penalty statutes: a. Some returned to automatic death penalty for certain crimes, but these were quickly enjoined i. Roberts v. Louisiana, Woodson v. North Carolina b. Others created guided discretion statutes, which gave juries aggravating and mitigating circumstances to weigh when determining death eligibility. c. Death penalty unconstitutional for any crime other than murder. d. Gregg v. GeorgiaUS 1976, Stewartfirst created the aggravating and mitigating circumstances: i. That the offense happened while was in commission of other capital felonies ii. That the offender committed the murder for money and a car iii. The murder was outrageously and wantonly vile, horrible, and inhuman in that it showed the depravity of the mind of .

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Murphy 20

b. Modern Capital Structure i. Bifurcated TrialA trial with two parts, one for guilt, then for sentencing. ii. Jones v. United StatesUS 1999p. 519ThomasOne aggravating circumstance, proved beyond a reasonable doubt, renders a defendant death eligible. From there, its the jurys duty to balance the aggravating and mitigating circumstances. 1. Even if jury instructions are the same for ten defendants, they are not vague because the jury is instructed to apply them to the individual defendants case. c. Aggravation i. MPC (p.529): 1. The murder was committed by a convict in prison 2. The defendant was previously convicted of another murder or of a felony involving the threat of violence to another person (p. 530) 3. The defendant committed two or more murders at the same time 4. The knowingly created a great risk of harm to many persons 5. The murder was committed while the defendant committed a felony (p. 531) 6. The murder was committed while attempting to avoid custody 7. The murder was committed for money 8. The murder was especially heinous, atrocious, or cruel, manifesting exceptional depravity (p. 532) ii. Non-statutory aggravating factors (p. 535) 1. May be allowed, after there has been at least one statutory aggravating factor proved beyond a reasonable doubt 2. Thing like stature of victim, family she left behind, 3. Victim Impact Statements a. Payne v. TennesseeUS 1991Rhenquistp. 535VIII erects no categorical barriers to victim impact evidence. The degree of harm is often a measure in determining the elements of the offense and the punishment deserved. i. Argument against is that they are irrelevant and inflammatory, which would violate VIII in a capital case. ii. One of Paynes two victims, Mr. Haynes, was carrying a voters registration card and a card inscribed with The Game Guys Prayer.

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Murphy 21 b. Paynes victim impact statement included: i. Identity of the victim ii. Itemize any economic loss iii. Personal injury along with seriousness and permanence iv. Change in victims personal welfare or relationships v. Any requests for psychological services vi. Other impact on family or victim as required

d. Mitigation i. MPC (p. 536): 1. has no significant history of prior criminal activity 2. Murder committed while under extreme mental or emotional disturbance 3. Victim was a part of s act, or consented to it 4. Murder committed under circumstances believed justified it 5. was an accomplice in a murder by another person, and his participation in that murder was relatively minor 6. acted under duress or domination of another person 7. At the time of the murder, s capacity to appreciate the criminality of his conduct, or to conform his conduct to the requirements of law, was impaired by mental disease, defect, or intoxication 8. was young ii. Lockett v. OhioUS 1978p. 538BurgerDeath is DifferentOhios death penalty jury instructions were not specific, and there was no mitigating factor for a getaway driver, so the court ruled they violated VIII and XIV. 1. Weighing States must prove one aggravating factor beyond a reasonable doubt to make death eligible, and then the jury balances aggravating and mitigating factors to determine when to apply the death penalty. 2. may offer any evidence that goes to: a. Character of b. Record of c. Circumstances of offense e. Limits on the Death Penalty i. Tison v. ArizonaUS 1987p. 546OConnorRicky and Raymond Tison helped spring their daddy Gary and his cellmate, Greenawalt, from prison. Lots of car trouble made them flag down a car, then Greenawalt and Gary killed the passengers, while R & R were getting them water. 1. R & R were affirmed for the murder, because the Supreme Court added to the analysis of Enmund v. Florida, which originally stated that to be eligible for death, the defendant

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Murphy 22

VII.

must be proved to have killed, attempted to kill, and intended to kill. The court added the fourth leg that substantial participation in an underlying felony and acts with reckless disregard or indifference to human life can allow the death penalty. a. Although R&R didnt kill the family, nor did they want to, by springing Gary and Greenawalt, they exhibited reckless disregard. Felony murder. b. In the movie Reversal of Fortune, R&R are on the fridge as two black kids from Mississippi instead of two white kids from Arizona ii. AgeThompson v. OklahomaUS 1988p. 554StevensA fifteen-year-old murderer cant be subjected to the death penalty; later, in Stanford v. Kentucky, US 1989, Scalia spoke for the Court and held a sixteen-year-old murderer could be subject to the death penalty. 1. OConnor in Thompson said she agreed that a 15 y/o shouldnt be killed, but she wanted more than evolving standards of common decency to make it constitutional law. iii. RaceMcCelsky v. KempUS 1987p. 555PowellWhere a pattern is established showing some correlation between race and the death penalty, it is not sufficient to overturn a sentence unless there is evidence that there is a negative correlation in that defendants particular case. 1. Used the Baldus Study, which showed black defendants are 1.1x more likely to receive the death penalty than white, and white victims are 4.3x more likely to bring the death penalty. iv. Proportionality ReviewGrasso v. OklahomaOK CRIM 1993 Grasso was convicted of murder, and elected to waive his right of appeal, because he wanted to die. He pled guilty, refused to give any mitigating circumstances, waived his right of appeal. However, in Oklahoma, mandatory sentence review (proportionality review) is not waivable. 1. Coyne says sentence review people should not let Grasso be killed because a. Shouldnt use the criminal justice system as stateassisted suicide. b. There is no adversary, so there is no justice c. This allows to select his punishment d. Deliberate exclusion of mitigating factors makes this decision arbitrary Justification & ExcuseThe actor conceded that she did the criminal act, with the requisite mens rea, but there is a reason she should not be punished. a. Distinguishing justification and excuse; Examine (p. 565):

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Murphy 23 i. The wrongness of the defendants conduct 1. Justification if the act advanced a social interest or vindicated a right. It was a criminal act, but it wasnt wrong. 2. Excuse when the circumstances limited the defendants voluntariness of the act. It was wrong, but I had no choice insanity, duress, etc. ii. The relative importance of legality in the definition of each type of defense 1. Allows the actor to know what conduct to take with justification a. Forces court to balance the discretion of judging the defendants conduct with the obligation to inform the public what exactly is illegal. i. Standards of decision, moral overtones. 2. Excuses are premised on the idea that the actor could not have known the proper conduct under the circumstances. iii. The allocation of burden of proof 1. Due Process beyond a reasonable doubt is required to prove all the defining elements of an offense, but not on justification and excuse. iv. The treatment of third parties 1. Justification exonerates conduct as right. 2. Excuse exonerates conduct as morally blameless. v. Defensive ForceSelf defense, defense of others, defense of your dwelling, and defense of other property (non-dwelling) 1. People v. La VoieCO 1964p. 576MooreIn order to claim perfect self defense, the defendant must have a reasonable belief that he is in imminent danger of serious physical harm. a. Unreasonable belief that you are in imminent serious physical harm may mitigate a charge from murder to manslaughter. This is imperfect selfdefense (p. 579). b. MPC says deadly force is unjustifiable unless you believe its immediately necessary to protect yourself from rape, kidnapping, death, or serious bodily injury. 2. Battered SpouseState v. LeidholmND 1983p. 581 Vande WalleAlcoholic abusive relationship. The wife kills her husband in his sleep after an abusive event. a. For justification or excuse, the belief one is in imminent physical danger must be reasonable. b. Objective versus subjective standard for reasonable fear for imminent serious physical harm

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Murphy 24 i. Here, the standard was ultimately the reasonable battered wife. 1. The standard is the standpoint of a person whose mental and physical characteristics are like the accused. ii. In this situation, the subjective standard was more just. c. Castle DoctrineNo person is required to retreat from his dwelling before resorting to self-defense, unless he was the initial aggressor or is assaulted by someone he knows dwells there. i. Here, she was unable to retreat, because hubby wouldnt let her, plus, it was her house anyway. ii. Bechtel v. Oklahoma d. Battered Wife Syndrome may not be a defense, but it may mitigate from murder to manslaughter. i. The difference between self defense and manslaughter is the reasonableness of the defendants belief, supra. e. NOTE: Some courts have rejected self defense when the wife kills the sleeping husband. f. A battered wife may not be excused for contracting killers for her husband. Inmates do not generally have the right to self-defense Rowe v. Debruyn7th 1994p. 579 People v. GoetzNY 1986p. 610WachtlerWhere a defendant takes action beyond the reasonable scope of the danger with which he was presented, he is not a reasonable man who can use self defense as an excuse. a. Goetz killed four people when one tried to steal 5$. Common Law re: deadly force in defense of property: a. Non-deadly force is permissible with reasonable belief it is necessary to prevent entrance or attack on the home. b. Deadly force is limited to i. Tumultuous entry and personal danger ii. A reasonable belief that deadly force is necessary to prevent entrance of someone likely to commit a felony c. If defending property other than a dwelling, only non-deadly force may be used, and only if that property is in possession. CL Crime Prevention a. Non-deadly force is fine to prevent a breach of the peace

3. 4.

5.

6.

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Murphy 25 b. Deadly force may be used to prevent a serious felony, like robbery, rape, arson, etc. c. Force in arresting (seizure under IV) must be reasonable; deadly force only allowed if dead or serious bodily injury is threatened and necessary to effect the arrest. i. Private citizens have the right to use force in arrest, but if the person being arrested is killed, then that person must have been guilty of the felony in question.

VIII.

Accomplice Liability a. PrincipleP1Person with intent, who actually does commit the crime b. Principle TwoP2Person present at the crime who aids, encourages, counsels, commends P1. i. May be charged with same level of offense as P1 ii. May withdraw iii. Mere presence at the scene of the crime is not, by itself, sufficient to render one an accomplice. The prosecution must also show that D was at the crime scene for the purpose of approving and encouraging commission of the offense. c. Accessory Before the FactP3, ABFSame as P2 but not present i. May be charged with same level of offense as P1 ii. May withdraw d. Accessory After the FactP4, AAFPerson who receives, comforts, aids, relieves another knowing that person committed a felony, for purpose of helping that person avoid capture, conviction, prosecution i. May be charged with same level of offense as P1 ii. May NOT withdraw e. CL & MajorityTo Withdraw, P2 or P3 must negate any aid or encouragement given before the crime is committed. i. If P3 gave approval, he must renounce it. ii. If P2 gave a gun, he must get it back. iii. P2 or P3 can almost always make an effective withdrawal by warning the authorities prior to commission of the crime. f. At Common Law, to convict P2 you had to convict P1, but that is no longer the majority. However, inconsistent verdicts are uncommon in trials of both defendants at the same time; theyre more likely to happen in separate trials. g. If P commits more crimes than were anticipated by P2, the accomplice will be liable for these additional crimes if:

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Murphy 26 i. The additional offenses are the natural and probable consequences of the conduct that D did intend to assist (even though D did not intend these additional offenses); and ii. The principal committed the additional crimes in furtherance of the original criminal objective that D was trying to assist. iii. If D can show that the additional offenses were unlikely or unforeseeable, D will not be liable for them.

IX.

Inchoate OffensesStop short of the actual crime, but generally graded as felonies themselves a. AttemptAn act with the intent or purpose to commit a crime that falls short of completion i. Requires intent and an overt action ii. Overt act must be greater than mere preparation iii. If the crime attempted is a specific intent crime, the prosecution has to prove the accused had intent as to every aspect of the crime. (e.g., burglary has to prove had both the intent to break and the intent to steal) iv. Negligence cannot lead to an attempt crime. v. TESTS to determine if there is the actus reus of ATTEMPT: 1. Final Step TestABANDONEDCLThere is no attempt until does everything she believes is necessary to bring about the intended result. 2. Proximity TestThe act is dangerously close to success. 3. Equivocality TestThe act in itself must show had unequivocal intent to commit the crime. 4. MPC took some substantial step in a course of conduct planned to culminate in the commission of a crime. Like a lighter version of the proximity test. Also uses a version of the equivocality test, asking if the act is strongly corroborative of the actors criminal purpose. 5. OklahomaPages 5 and 6 in Swanks handout; A person is guilty of an attempt to commit a crime if, acting with the requisite culpability of the crime, he purposely engages in conduct that would be the crime if circumstances were as he believes they are, or he does anything with the purpose of effecting a certain result in an element of the crime. b. SolicitationCLinciting, counseling, inviting, inducing, urging, or commanding another to commit a felony with the specific intent that the person solicited actually commits the crime. i. D has to want the other party to commit the crime; it is still solicitation if the second party refuses. ii. The crime of solicitation is never construed so as to require an overt act as soon as D makes his request or proposal, the crime is complete iii. Withdrawal is unavailable.

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Murphy 27

c. ConspiracyCLAn agreement or combination between two or more persons to accomplish some criminal action. i. Requires: 1. Actus reusan agreement in words, writing, etc. May even be implied from actions. 2. Mens reaThe conspirators must be shown to have intended to bring about the harmful result of the crime over which they conspire. a. This is true even if the intent is not necessary for conviction of the substantive crime. 3. Intentintent to enter into an agreement. a. Agreement must be serious; jokes do not make a conspiracy 4. Parties must intend to achieve the objective of the agreement 5. Most (not all) jurisdictions (including OKp. 10; 21 OS 423) require some overt act beyond mere preparation. ii. Prosecutors advantages: 1. Can hold a member of a conspiracy liable for all acts related to furthering the conspiracy, even if he has nothing to do with that specific act. a. Ex: A has an illegal gun, of which B knows nothing. B can be charged with As illegal gun just like A can, if it was purchased or used to further the conspiracy. 2. Its a vague offense that makes defense difficult 3. Venue may be chosen may be prosecuted where the agreement was made or where overt conspiracy actions took place 4. Hearsay exception for co-conspirators, which allows admittance of statements made out of court. a. Any statement made by one member is admissible against all members of the conspiracy. iii. Other: 1. At common law, there could be no spousal conspiracy because the man and woman were one person. a. This has been abandoned. 2. Wharton RuleCLwhen two or more people are necessary for the commission of the substantive offense, you need at least one more person who is not necessary to have a conspiracy. 3. Whartons Rule courtesy Emmanuels: Under the common-law Whartons Rule, where a substantive offense is defined so as to necessarily require more than one person, a prosecution for the substantive offense must be

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Murphy 28

X.

brought, rather than a conspiracy prosecution. The classic examples are adultery, incest, bigamy and dueling crimes. 4. Trial: Where A and B are tried in the same proceeding, and A is acquitted, all courts agree that B must also be acquitted. But if the two are tried in separate proceedings, courts are split. Most courts today hold that As acquittal does not require Bs release. 5. Conspiracy to commit a strict liability crime requires intent to commit the crime. a. Therefore, if two people conspire to rape a 12 year old they think is 18, they will be guilty of conspiracy to rape, but not conspiracy to statutorily rape. b. However, they both can be charged with statutory rape individually as a strict liability offense. d. MergerWith attempt and solicitation, when an offense is completed, the attempt or solicitation merges into the completed offense. Therefore, you cant be charged with attempted murder and murder of the same person. i. Conspiracy is different because it doesnt merge. It can give rise to separate punishment, trials, and charges. 1. This allows prosecutors to charge conspirators with heavier crimes to get them to accept plea bargains where they rat out their co-conspirators. Theft Offenses a. LarcenyCLTaking (caption) and carrying away (asportation) of tangible personal property of another by trespass (no larceny if you have the right to possess) with the intent (state of mind) to permanently or for an inexcusable time deprive the owner of his property interest. i. Realty, fixtures, houses cant be subject to larceny ii. Personal services, intangibles cant be subject to larceny iii. MistakeD lacks the requisite intent for larceny even if he is mistaken about the validity of his claim against V. 1. This is true even if Ds mistake is unreasonable, so long as it is sincere. iv. Property must be taken from someone with possession, not necessarily ownership at the time of taking. 1. Lost and mislaid property are still in the possession of the owner, and thus may be subject to larceny, but abandoned property may not be. v. Larceny by trick is where a person is induced to hand over property by deception or fraud. 1. Not the same as false pretenses, because he does not take title. vi. If the property is misdelivered, it may be subject to larceny if:

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Murphy 29 1. The person getting the property knows its a mistake at the time of delivery 2. The person getting the property has the intent to deprive at the time of delivery.

b. EmbezzlementLater statutory refinement of larceny that allowed people with lawful possession to get in trouble for their fraudulent conversion (deprivation of a significant part of its usefulness) of property of another. i. Larceny v. embezzlement. This comes down to the question, Was possession originally obtained unlawfully [larceny] or lawfully [embezzlement]? ii. Requires intentional conversion 1. Bailee sells goods to 2. Foreman who sells tool to is guilty of embezzlement, because he had right to possess the tool but it wasnt his to own and sell. 3. Foreman who gets fired for embezzlement and takes a tool home is guilty of larceny, because he never had right to possess the tool. iii. Minority of jurisdictions allow embezzlement of real property, although most just allow it to apply to those things that can be subject to larceny. iv. Property converted must be the property of someone other than the converter; 1. If X lends Y $20, Y doesnt convert that by failing to repay X, because Y was in lawful possession of the money. c. False PretensesEnglish statutory law in 1757, so part of US common lawObtaining title to the property of another with intentional or knowing false statement of past or existing fact with the intent to defraud the other. i. Definition: 1. A false representation (victim relies on misrepresentation) of a 2. material present or past fact 3. which causes the person to whom it is made 4. to pass title to his property to the misrepresenter, 5. who knows that his representation is false, and 6. intends to defraud. ii. Larceny v. false pretenses. This comes down to the question, What was obtained unlawfully, mere possession [larceny] or title [false pretenses]? iii. Gullibility of victim does not excuse the defendant iv. Not just possessiontitle too.

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Murphy 30

d. RobberyCL Taking of personal property of another from the others person or presence by force or intimidation with intent to permanently deprive him of it. i. Like larceny, but ads the elements of personal danger and intimidation or force. 1. Larceny and robbery cannot be concurrent offenses ii. The test for presence is whether V, if he had not been intimidated or forcibly restrained, could have prevented the taking. iii. Robbery may also be armed robbery, but no arms are required; intimidation and/or the threat of force are sufficient. iv. If the perp uses a deadly weapon, it is aggravated robbery v. The threat of force generally has to be threat of force to the person vi. Doesnt use reasonable man standard to determine whether the victim was threatened. e. ExtortionCL misdemeanorsimilar to blackmail. The corrupt collection of an unlawful fee by an officer in his office. Today, it is generally obtaining property from another with oral or written threats, the threat of harm to the individual or others. i. D obtains property by a threat of future harm ii. The threats dont have to be imminent or immediate iii. Property doesnt have to be in the victims presence f. Receiving Stolen PropertyGenerally only a criminal offense if you know its stolen and intent to deprive the rightful owner permanently. i. Also the receipt and control of property known to have been gotten in a manner constituting a criminal offense. ii. Look to the facts to determine if the person knew it was stolen, or shouldve been suspicious to that probablility. 1. Willful blindness is not an excuse to criminal liability. g. ArsonIntentional destruction of (usually) residential property by fire. CLmalicious burning of a dwelling of another. i. Requires malicenegligent or reckless burning is not arson. h. BurglaryCLbreaking and entering of a dwelling of another at night with intent to commit a felony therein. i. Most states have removed the requirements of at night and dwelling. ii. The breaking only has to be breaking the close; the breaking doesnt have to be visible and notorious, it just has to go over the line, even if the door is wide open. iii. Constructive breakingno force at allgain entry through fraud, threat, intimidation, or the chimney. iv. The intent to commit a felony must be synchronized with the intent to break. Later intent to commit a felony does not render the earlier intent to break a felony.

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Murphy 31 1. The felony may be larceny (usually), or rape, murder, kidnapping, arson, etc.

i. KidnappingCLThe forceful abduction or stealing away someone from his own country to another. Modern forms describe an aggravated form of false imprisonment: i. The confinement of the person that involves either some movement (asportation) of the victim or concealment of the victim in a secret place. ii. In the case of Cynthia Helford, when her attacker took her only two miles away for only half an hour, it was still determined that this was kidnapping rather than false imprisonment, because in the situation of rape, any length of time is like an eternity, and the new environment was significantly different from the environment she was in minutes prior. 1. PA case, issue was that PA law required the defendant must remove the person for a substantial time or distance. j. False ImprisonmentUnlawful confinement of a person without consent. Does not require asportation. k. Felonious RestraintBetween false imprisonment and kidnapping restraining a person in unlawfully in circumstances that expose her to serious risk of bodily injury. No requirement of asportation. XI. Sex Offenses a. SodomyCommon Law i. BeastialityCarnal copulation with an animal by a human being 1. Animals cant consent to sex with a human ii. BuggeryAnal intercourse by a man 1. PederastyAnal intercourse between a man and a younger boy iii. CunnilingusOral stimulation of the female sex organ iv. FellatioOral stimulation of the male sex organs v. Oklahoma 888 sodomy lawno requirement of force b. RapeCLfelony unlawful carnal knowledge of a woman by a man not her husband without her effective consent. i. At CL, only male v. female ii. At CL, no marital rape iii. OK21 OS 1111 iv. Rape occurs at the moment of penetration, however slight. Before penetration, it is attempted rape. v. If penetration is accomplished with force or threat, consent a moot issue. vi. A previous sexual relationship does not preclude rape.

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Murphy 32 vii. Consent may be withdrawn at any time prior to penetration viii. Mistake as to consentIf D makes a reasonable mistake as to whether V consented, he does not have the mens rea for rape. If Ds mistake, however, is a negligent or reckless one, courts are split about whether it furnishes a defense. 1. This does not apply to statutory rape, which is SL. ix. Rape by fraud is the mistaken belief youve consented to sex with A, when youre really having sex with B. 1. Fraudulently obtained consent is not effective. x. CL required victims to show resistance 1. Thats not so much today, with frozen fear responses and consent to avoid injury. 2. People v. BarnesCA 1986p. 1095BirdVerbal resistance is sufficient. xi. After penetration, mans failure to stop when ordered does not create rape. 1. Rape is at the time of penetration 2. Failure to cease is sexual battery 3. Consent may be withdrawn at any time.

Common Law Rules BurglaryBreaking and entering of a dwelling at night with the intent to commit a felony therein. DrunkennessState v. Cameron (III B l)drunkenness is not an absolute defense, but it may be used for defensive purposes. MPC Page #s Affirmative Defense, p. 242, 1.12 Bifurcated Trial, 210.6 Burglary, p. 240, 221.1, 2.02(4) Catastrophe, p. 222, 220.2 Cooling Time, p. 399, 210.3 Criminal Homicide, p. 454, 210.2criminal homicide is murder when committed recklessly with a gross indifference to human life, and requires proof of awareness of the risk to that life. A conscious disregard of the risk so far departs from acceptable behavior that it constitutes a gross deviation from the standard of conduct a law-abiding person would observe, and can be sufficient for reckless homicide. Criminal Mischief, p. 222, 220.3 Culpability, p. 211, 218, 240, 2.02 Death Penalty, p. 544, 210.2 Felony Murder, p. 466, 210.2(1)(b). MPC doesnt like felony murder, but does allow a nonbinding presumption recklessness or extreme indifference if a homicide occurs during a felony Intoxication, p. 283, 2.08voluntary is not a unless it negates an element of the offense. Manslaughter, p. 434, 210.3, 2.02negligent homicide discussion Mistake, p. 241, 243, 2.04(2), 2.04(3)

Criminal Law Coyne Negligent Homicide, p. 447 (vehicular discussion), 210.4 Provocation, p. 383, 406 210.3 Proximate Cause, 2.03(2)(b) Rape, p. 1103, 213.1 Requirement of a voluntary act, p.128, 132 2.01, Self Defense, p. 580, 600, 3.04

Murphy 33