Criminal Outline Criminal Offense Two parts: Complete crime includes will and act.

Common Law comes from England. Common Law is straight forward and plain.

Actus Reus
Actus Rea physical part of crime; the act Complete crime includes a will and an act Must be voluntary in motor skills & actor must be conscious. A fixed crime or will to do an unlawful act is almost as heinous as the commission of it. Generally the actus rea and mens rea begin at the same time. There may be exceptions. Regulation rule source of law passed by Judicial Judicial decision is a source of law; they interpret regulations, statutes, and the constitiution. Statutes are sources of law Legislative branch passes statutes Constitution is a source of law. Pg173 3 principles limit the distribution of punishment. Culpability- to safeguard conduct that is without fault from condemnation as criminal. Proportionality to give fair warning of the nature of the conduct declared to constitute an offense. Legality to differentiate on reasonable grounds between serious and minor offenses.

Actus Rea culpable conduct A Habitual action done without thought is voluntary. Acts of a hypnotized subject are not voluntary. Somnambulism, (sleepwalking), acts are involuntary. Voluntary means motor skills done on own volition. Voluntary act necessary for crime. Possession - is an act only if the person is aware he has the thing he is charged with possessing. Possession requires knowledge. Defense of legal insanity placed on shoulders of defendant. If defense of legal insanity acquits you then you must receive mandatory help. Two Basic situations in which human actions misfire One is where actions are done mistakenly, accidentally, compulsorily or under duress

Second is where actions misfire in more basic ways such as seizures, convulsions, reflex movements, and Somnambulism. Absence of Act precludes culpability There is a physical action, but it is discounted because there is no mental action, let alone a criminal disposition. Martin v. State Issue: Can the defendant be guilty of drunkenness in a public place if he was taken their involuntarily? Holding/Rule: The accusation of drunkenness in a public place cannot be established by proof that the arresting officers, involuntarily and forcible, carried the defendant to that place while still intoxicated. Reasoning: The defendant must voluntarily appear at a public place. People v. Newton Issue: Can a defendant be guilty of murder if he was semi-conscious? Did the trial court err in not instructing the jury to deliberate over unconsciousness as a defense? Holding/Rule: No, where not self-induced, unconsciousness is a viable defense for the charge of criminal homicide. A person does not have to reach a physically state of unconsciousness such as a comma to have the defense exist. Yes the trial court erred. Reasoning: This defense has been used in other cases where the defendant has fired multiple gunshot wounds in a state of unconsciousness

Omission
Omission the failure to act. Omission to act. Can be contractual. Creation of peril If you create a peril for a person you have a duty to aid that person or you will be guilty for omission. Voluntary assumption of duty If you begin to aid a person you must continue until help arrives. Can a person be found guilty for the omission of an act? Ex. Person laying in street in bad position Pedestrian sees person and cars coming. Could the pedestrian be found guilty for not helping the person? Requirements of voluntary choice applies to actions as well as omissions. At common law unless a statute says otherwise a person is not legally responsible for the care and well being of a child if that person is not a parent, adoptive parent, in loco parentis, or responsible for the supervision of a minor child under age 18. For involuntary manslaughter, a voluntary act still applies.

Generally you can not be found guilty of an omission of an act unless you fall under on of the categories. 5 situations in which failure to act may constitute breach of legal duty Statute Contract obligation Relationship Status Voluntary care Created the peril Pope v. State Issue: Did the defendant have responsibility for the supervision of the child in the circumstances? Holding/Rule: The evidence was not sufficient in law to prove that the defendant fell within the class of persons to whom the child abuse statute applies. A person may be convicted of the felony of child abuse created by section 35A as a principle in the first degree upon evidence legally sufficient to establish that (1) was the parent of, adoptive parent of, or in loco parentis to, or responsible for the supervision of a minor child under the age of 18 AND (2) caused by being in some manner accountable for, by act of commission or omission, abuse to the child in the form of a physical injury or injuries sustained by the child as a result of cruel or inhumane treatment, or malicious act or acts by such person. Reasoning: The defendant may not be punished as a felon under Marylands system of justice for failing to fulfill a moral obligation. She was under no legal obligation. Jones v. United States Issue: Were the jury instructions an error for not suggesting the necessity for finding a legal duty of care? Holding/Rule: In order for the law to impose the penalty of manslaughter, for an omission or act of a duty owed by an individual to another, where it the omission or act results in the immediate death, the duty must be imposed by law or by contract, person omitting act or performing act must be conscious and must be voluntary, and the omission or act, must be result in the immediate and direct cause of death. In spite of the rule, the instructions failed to suggest the necessity for finding a legal duty. Four situations in which failure to act may constitute breach of legal duty: Where statute imposes a duty to care for another, second where one stands in a certain status relationship to another, third, where one has assumed a contractual duty to the care of another, fourth, where one has voluntarily assumed the care of another and so secluded the helpless person as to prevent others from rendering aid, fifth, where one has created the peril. Reasoning: A finding of legal is the crucial element of this case and to not instruct the jury to consider it is an error. Obligation A legal or moral duty to do or not do something.

Care Taker RO

Lifeguard CO

A
Cousin RO A is drowning. Care Taker has Contract obligation. Cousin has Relationship obligation Stranger has no obligation

Stranger N/A

Lifeguard has a cramp and cant save him, even though he has a contract Obligation Lifeguard is not liable because actus rea must be voluntary. He catches a cramp so that makes his actions involuntary.

Mens Rea
Mens Rea mental part of crime; intent to commit crime. Not just what someone is thinking. Question: The mens rea for every criminal offense is the same? False, mens rea differs from crime to crime. No one is punished solely for his thoughts. P 203 Mens Rea - Culpable Mental State Criminal Law constitutes a description of harms that society seeks to prohibit by threat of criminal punishment Blackstone states that an unwarrantable act without a vicious will is no crime. Actus non facit reum, ni si mens sit rea. Mens rea refers only to the mental state required by the definintion of the offense to accompany the act that produces or threatens the harm Mental state of criminal law is the level on intentionality with which defendant acted. Mens Rea Elements under common and modern law Regina v. Cunningham Issue: Was his act malicious within the meaning of section 23 of the Offenses against the Person Act 1861? Was judges definition of malicious wrong? Holding/Rule: Rule 23: Whosoever shall unlawfully and maliciously administer to or cause to be administered to or taken by any other person any poison or other destructive or noxious thing, so as thereby to endanger the life of such person, or so as thereby to inflict upon such person

any grievous bodily harm, shall be guilty of a felony. Malicious not defined as wicked. It postulates foresight of consequence. Court held that trial judge was incorrect in his definition of malicious. Reasoning: Should have been left to the jury to decide whether he foresaw that the removal of the gas meter might cause injury to someone but nevertheless removed it. This court is unable to say a reasonable jury would without a doubt have convicted Mistake of Fact A mistake about a fact that is material to a transaction. The defense asserting that a defendant acted from an innocent misunderstanding of fact rather that from a criminal purpose. The principle as to mistake of fact that guides us in our reading is that for the defense the mistake must be honest and reasonable. Honest and reasonable mistake using the reasonable man test is a defense for General intent crimes. P225 Ignorance & Mistake The conventional position under which the significance of ignorance by the defendant or a matter of fact or law or a mistake as to such matters, is determined by the metal state required for the commission of the offense involved. Ignorance & mistake is a defense when it negatives the existence of a state of mind that is essential to an offense, or when it establishes a state of mind that constitutes a defense under a rule of law relating to defense. It is impossible to assert that a crime requiring intention or recklessness can be committed although the accused laboured under a mistake negativing the requisite intention or recklessness. No justification requiring ignorance or mistake be reasonable if the crime or the element of the crime involved requires acting purposely or knowingly for its commission. Mistake of Fact and Mistake of Law only apply when there IS MENS REA. Regina v. Prince Issue: Can the defense of mistake of fact be used as a defense for a crime that, even if reasonable and honest, is forbidden and wrong without lawful cause? Holding/Rule: Court found that even though the defendant had reason to believe the girl was 18 because thats what he was told, he still unlawfully took the unmarried girl under the age of 16 from her mothers or fathers possession and against their will. According to the rule he is guilty. Reasoning: It is impossible to say that where a person takes a girl out of her fathers possession, not knowing whether she is or is not under sixteen, that he is not guilt. What is the difference between Specific Intent and General Intent? General intent is the state of mind required for the commission of certain common-law crimes not requiring a specific intent or not imposing strict liability. Usually

takes form of recklessness or negligence. General intent only has only one intent. Mens rea is implied. Specific intent is the intent to accomplish the precise criminal act that one is later charged with. Specific intent has more than one intent. The defense for specific intent is when the defendant claims that he or she did not have the capacity to form the mental state necessary for committing the crime alleged. A crime can have more than one intent. People v. Olsen Issue: Is a reasonable mistake of victims age a defense to a charge of lewd or lascivious conduct with a child under the age of 14? Holding/Rule: Court in people v. Lopez states that a mistake of fact relating only to the gravity of an offense will not shield a deliberate offender from the full consequences of the wrong actually committed. Section 288 (a): Any person that willfully commits lewd or lascivious acts with a child under 14, with intent of arousing, appealing or gratifying sexual desires of such child, shall be guilty and shall be imprisoned in state prison for a term of 3, 6, or 8 years Reasoning: The legislative purpose of section 288 (a) would not be served by recognizing a defense of reasonable mistake of age.

Strict Liability
Liability that does not depend on actual negligence or intent to harm, but that is based on the breach of an absolute duty to make something safe. NO MENS REA, do not have to prove it. There are defense for strict liability. Statutes enacted to protect people; basically it is just doing it. Difference between strict liability and traditional crimes SL Traditional Regulatory crimes, Rape, Traffic Violations, Larceny, With Distribution of alcohol Assault, Intent to minor, etc. Burglary, etc.

W/O Intent

Knowingly and willingly are key words for crimes that are not strict liability Regulatory and Strict Liability Crimes Regulation rule- source of law passed by Judicial Judicial decision is a source of law; they interpret regulations, statutes, and the constitution. Statutes are sources of law. The Legislative branch passes statutes. Constitution is a source of law Morissette v. United States Issue: Did the defendant honestly have the intention of taking government property? Holding/Rule: The defendant must be proven to have had knowledge of the facts that made the conversion wrongful, that is, that property had not been abandoned by its owner.

Reasoning: Lower courts did not prove that defendant knew the conversion was wrong. Mistake of Law (generally not a defense, few exceptions) because courts dont want people to use it as a vehicle to escape liability. When you think you know the law but you really dont. Doesnt matter if you were acting in good faith. A mistake about the legal effect of a known fact or situation. 3 Exceptions to mistake of law 1. Specific court decree 2. Official opinion from state attorney general 3. Where the statute has recently been appealed People v. Marrero Issue: Does the defendants misreading of the statute excuse his criminal conduct? Holding/Rule: A person is not free of liability for conduct because he engaged in such conduct under a mistaken belief that it does not, as a matter of law constitute an offense, unless such mistaken belief is founded upon one of the four exceptions. Ignorance of the law is no defense. It doesnt matter if you dont know 3 Exceptions Passive act; not doing anything wrong Lack of notice Omission CL Modern Murder M2

MI M2

Rule for Forgery Altering or making a false document with intent to defraud. Actus Rea Mens Rea Different kinds of Crimes, some intentional. Maliciousness p388 The intent without justification or excuse, to commit a wrongful act. Recklessness Conduct whereby the actor does not desire harmful consequence but nonetheless foresees the possibility and consciously takes the risk. Intentional crime- A crime done intentionally Negligence The failure to exercise prudent care that a reasonable person would have exercised in that situation.

Absence of act precludes culpability. Law does not compel active benevolence between man and man. Good Samaritan Statute Handful of states have good Samaritan law which states it is illegal to refuse to rescue a person in an emergency situation.

Rules
Carrying a fire arm in a public place No person shall carry a fire arm in a public place Burglary - Specific intent. Breaking and entering of the dwelling of another at night with intent to commit larceny. Assault(battery) general intent Unlawful use of force against another or the attempt to use force against another with the present ability to carry it out. Assault with deadly weapon Every assault with a weapon includes an assault without a weapon aka lesser included offenses. Assault with intent to kill Legal sufficiency determines whether the case goes to jury or not. During a jury trial the jury can be hung but the judge cant. Culpability Blameworthiness, the quality o being guilty Requires showing that the person acted purposely, knowingly, recklessly, or negligently with respect to each material element of the offense.

Homicide
Killing of human being by human being. Common Law killing of another with malice aforethought

Diagram for Types of Homicide. Murder I

Intended Killing Unintended Killing

Premeditation

Felony Murder
Depends on Jurisdiction

Murder II
Adequate provocation

Murder II

high risk 2 def for Malice

Voluntary Manslaughter

Involuntary Manslaughter

low risk

Self Defense if proven

Civil Negligence

The state of mind for murder is different on each level. Murder 1 must be premeditated, deliberation, and malice. Difference between Murder I and Murder II in intentional killings is premeditation and the difference between Murder II and Voluntary manslaughter is adequate provocation. In Unintentional killings the difference between Mruder II and Involuntary manslaughter is Malice (Knowledge that act will cause death) You can be guilty of murder without intending to kill him. Murder First degree The killing of another human being with malice with premeditation and deliberation. For premeditation & deliberation there is no fixed time but it must be enough to show wrongdoer formed intent, planned and thought about it..

Malice
Malice means any of the four with the act or omission by which death is caused and it may exist where the act is unpremeditated. 1. Intention to cause death or intent to kill. 2. Knowledge that act will probably cause death. 3. Intention to commit any felony whatever. 4. an intent to oppose by force any officer of justice on his way to, in, or returning from the execution of duty.

Reckless
The creation of a substantial and unjustifiable risk of harm to others and by a conscious, sometimes deliberate, disregard for or indifference to that risk. 1. Low risk 2. Unaware or didnt care likelihood, indifferent \ 3. Death is a possible. Murder II intentional The Killing of another with intent to kill Sentence not more than 15 but can be Voluntary Manslaughter Intended The killing of a human being w/o malice in the heat of passion caused by adequate provocation w/o reasonable time to cool off Murder II unintentional The killing of another with knowledge that act will probably cause death High risk Involuntary Manslaughter Unintended The killing of a human being w/o malice, but with reckless behavior ; reckless & warranting Low risk

Commonwealth v. Carroll Issue: Doesnt the lack of time for premeditation sustain a conviction of second degree murder? Holding/Rule: Whether the intention to kill and the killing, that is, the premeditation and the fatal act, were within a brief space of time, or a long space of time is immaterial if the killing was in fact intentional, willful, deliberate, and premeditated. Reasoning: No time too short. State v. Guthrie Issue: Was the jury wrongfully informed on the difference between first degree and second degree murder? Holding/Rule: Yes the rule in Schrader eliminates the distinction in this state between first degree and second degree murder, equating as it does premeditation with the formation of the intent to kill. Adequate provocation Provocation in order to be adequate must be such as might naturally cause a reasonable person in the passion of the moment to lose self-control and act on impulse and without reflection. Modern Rule for adequate provocation Provacation must be such as would arouse a reasonable and ordinary person to kill someone. The question is whether a reasonable person would be provoked? Doesnt have to be in the presence. Must not have had time to cool off. Common Law Rule for adequate provocation

In order to have legal provocation there must be an assault and battery upon a person, mutual combat, illegal arrest, injury or abuse to close relative, or sudden discovery of a spouses adultery or infidelity. Must be in the presence. Must not have time to cool off. P411 Sexual infidelity as provocation Courts that permit sudden sexual infidelity to qualify as a potential basis for a heat-ofpassion claim nonetheless interpret the boundaries of this category narrowly. There is a man in the neighbor hood that walks his dog every morning and every evening. He doesnt have a bag to pick up the dogs droppings. The dog walks onto a homeowners yard and handles his business. This homeowner took excellent care of his yard. The homeowner comes out and asks Mr. Neighbor to not let his dog do that. Mr. Neighbor comes back later that afternoon with two dogs, they handle business on the yard. The homeowner told Mr. Neighbor that he was getting upset with the dogs using the bathroom on the yard. Mr. Neighbor comes back later that night with three dogs, and they do the same. The homeowner takes his gun and shoots him. Did he have adequate provocation? In common law there would be no adequate provocation because it doesnt fit in one of the categories. Under the modern rule it would be left to the jury to decide. P413 Cooling Time Common law view is that too long a lapse of time between the provocation and the act of killing will render the provocation inadequate as a matter of law and therefore deprive the defendant of the right to an instruction on voluntary manslaughter. No set time but there must be time. The cooling time limitation can sometimes be surmounted by the argument that an event immediately preceding the homicide had rekindled the earlier provocation. Many courts refuse to take note of rekindling Self Defense A person has the right to use reasonable force to defend himself against a threatened imminent battery. Must be proven to be reasonable and necessary. Civil Negligence

The difference between Murder and Manslaughter is that there is no malice. Girouard v. State

Issue: Are words alone provocation adequate to justify a lessen a conviction of second degree murder to voluntary manslaughter? Whether the provocation of Girouard by his wife was enough to mitigate the charge of Murder in the second degree to voluntary manslaughter? Holding/Rule: For a provocation to be adequate it must be calculated to inflame the passion of a reasonable man and tend to cause him to act for the moment from passion rather than reason. Words alone are not adequate provocation. Perkins on Criminal Law states that even fighting words have no recognition as adequate provocation. The court holds that the provocation in this case was not enough to cause a reasonable man to stab his provoker 19 times. Reasoning: The standard of reasonableness has not been met here Maher v. People Issue: Did the evidence display enough provocation to have lessened the charge from Second degree murder to voluntary manslaughter? Was the evidence properly rejected? Holding/Rule: Yes because the reason, at the time of the act, be disturbed or obscured by passion to an extent which might render ordinary men, of fair average disposition, liable to act rashly or without due deliberation or reflection, and from passion rather than judgment. The court stated that the facts were sufficient enough to have lessened the charge. No, the question should have been given to the jury for deliberation and to determine whether or not the acts were reasonable. Unintended Killings & Involuntary Manslaughter Commonwealth v. Welansky Issue: Did the defendants actions constitute a wanton and reckless act? Holding/Rule: If a reasonable man in the situation would have recognized the gravity of the danger, then the defendant is liable for his wanton and reckless behavior. Reasoning: Facts were enough to prove that death resulted from his wanton and reckless disregard of the safety of patrons in the event of fire from any cause. Objective v. Subjective Standards of Liability State v. Williams Issue: Did the breach of duty to care for the child amount to gross negligence or was it just simple or ordinary negligence? Was the failure to provide medical attention the proximate cause of death or was it too late? Holding/Rule: If the conduct of a defendant, regardless of his ignorance, good intentions and good faith, fails to measure up to the conduct required of a man of reasonable prudence, he is guilty of ordinary negligence because of his failure to use ordinary caution and if such negligence is the cause of death then the defendant is guilty of statutory manslaughter. By using the standard of ordinary caution, the defendant has sufficient notice of the babys apparent condition in the period from September 1, to September 5, 1968 to have required them to have obtained medical care for the child.

Reasoning: The failure to give medical attention is ordinary or simple negligence and such negligence is sufficient to support the trial courts ruling. Line between Murder and Manslaughter Commonwealth v. Malone Issue: Did the court err in its charge to the jury? Do the facts constitute a charge greater than involuntary manslaughter? Holding/Rule: When an individual commits an act of gross reckless for which he must reasonably anticipate that death to another is likely to result, he exhibits that wickedness of disposition, hardness of heart, cruelty, recklessness of consequences and a mind regardless of social duty which proved that there was at that time in him the state of mind termed malice. Therefore the killing was for malice. Motive is irrelevant. Reasoning: Since his mindset encompassed some elements of malice the courts charge was correct. United States v. Fleming Issue: Did the facts of the case support the existence of malice aforethought? Holding/Rule: Malice may be 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 defendant was aware of a serious risk of death or serious bodily harm. Reasoning: To support the conviction of manslaughter the govt only needs to have proved the defendant intended to operate his car in a manner in which he did with a heart that was without regard for the life and safety of others.

Felony Murder
CW Complaining witness CW1 CW2

1 Customer Guard

2 3

Two defendants go into a bank to rob it. They go in and say give up the loot Teller number two takes a gun from under the counter and shoots defendant number 1. Defendant number 2 takes gun out and it accidentally goes off and hits teller number 2. Security guard sees it and pulls his gun and accidentally shoots a customer. Defendant number 3 stays outside with the car.

Basic Felony murder Doctrine One who commits a felony and intends to commit a felony, and a death occurs during the course of the felony, then the person is guilty of murder. A felony resulting in death can provide a basis for a murder conviction without proof of malice. Defendants dont have to murder anyone. Most jurisdictions call felony-murder, Murder 1. 2 theories Proximate cause Felons when you put the robbery in motion you responsible for any killings that happened during the course of the robbery. Agency theory Only if one of the felons does the killing does the felony murder rule apply. If the felons did not kill during the robbery and someone else has, then the felons are not liable. Felony Murder Rule The killing of another in the commission of a felony, even though the death is accidental, they will be found guilty. Rule now limited to dangerous felonies. Dangerous felony determined by the elements of the rule or to look at the elements and the facts of the case. Felony Is any crime where there is more than a year in jail and/or more than a $1000. Misdemeanor Anything up to one year in jail and/or up to $1000. Petty offense Running a red light. Willful Murder The unlawful and intentional killing of another without excuse or mitigating circumstances. Although a defendant can be held liable under the felony-murder rule in the absence of fault (i.e. mens rea) with respect to the death, the prosecution still has the burden of proving that his death was a direct result of the defendants actions. Proximity the harm was the natural and probable consequence, or the foreseeable consequences, of the criminal act. P452 comments on Felony murder rule. In many states a misdemeanor resulting in death can provide a basis for an involuntary manslaughter conviction without proof of recklessness or negligence. P457 Notes on statutory reform of the felony-murder rule

England abolished felony- murder rule Where a person kills another in the course or furtherace of some other offence, the killing shall not amount to murder unless done with the same malice aforethought (express or implied) as is required for a killing to amount to murer when not done in the course or furtherance of another offence. Penn. divided murder into two parts only rape arson robbery and burglary were designated as the felonies on which a first-degree felony murder conviction could be obtained. Cal. followed with saying a killing in the course of a nondesignated felony still triggers felony-murder rule but in the absence of premeditation and deliberation, the offense will only be murder 2. Sufficiency of Evidence This basically means that in order for a criminal conviction to be obtained, the evidence has to reasonably support a finding of guilt beyond a reasonable doubt. Felony Manslaughter Regina v. Sern Issue: Did the defendants willfully kill the two boys? Holding/Rule: Any act known to be dangerous to life and likely in itself to cause death, done for the purpose of committing a felony which causes death should be murder. If the defendants set fire to this house when the family was in it, and knew the boys were to be suffocated or burnt to death, then the defendants are guilty. Reasoning: the older definition was too broad. People v. Stamp Issue: Is the felony murder doctrine limited to deaths which are foreseeable? Holding/Rule: Felony murder doctrine is not limited to those deaths which are foreseeable. A felon is held strictly liable for all killings committed by him or his accomplices in the course of a robbery. As long as the homicide is the direct casual result of the robbery. Victims physical condition cannot be the only substantial factor of death. Reasoning: The fright of the robbery was too much shock to Honeymans system.

General Terms
Dichotomy- separation of different or contradictory things. Arrest of judgment the staying of a judgment after its entry ; esp., a courts refusal to render or enforce a judgment because of a defect apparent from the record. Lawyers, Judges, and other people who work around a court house, dont know what a jury will do. Trier of Fact- Jury if jury trial. Judge if bench trial. Michigan has no felony-murder doctrine. Michigan states that murder which is perpetrated by means of poisoning, lying in wait, or other willful, deliberate, and

premeditated killing, or which is committed in the perpetration or attempt, to perpetrate designated felonies, is murder of the first degree.

Rape

general intent Sexual intercourse with a female by force or threat of force against her will or without consent (with out consent deals a lot with children; statutory rape). Blackstone defined rape as carnal knowledge of a woman forcibly and against her will. Traditionally only a woman could be raped. A confused area of the law. Changes periodically. Has social aspects, intimate aspects and legal aspects. Rape is between male and female. Pertains to human beings. Many states adhere to traditional concepts of rape: Vaginal intercourse by force or threat of force against the will and without the consent of the other person. 4 central issues states differ on The gravity of the facts required to be proved Whether and in what way the crime is split into distinctly graded offenses The level of punishment authorized Whether or when spousal rape is punishable. Rape Forcible compulsion Legal Sufficiency of Evidence basically when there is enough evidence to take a case to trial. When the trial judge believes that there are enough facts to give the case to the jury. Whether a reasonable juror could find guilt based on this evidence beyond a reasonable doubt? This is a screening mechanism. Applies to all settings. This decides whether a case goes to the jury. EVIDENCE IS VIEWED IN THE LIGHT MOST FAVORABLE TO THE PROSECUTION. If no reasonable jury could find guilt then the case doesnt go to the jury. Usually a missing element (i.e persons name, etc.) Legal standard is whether a reasonable fact finder could find guilt beyond a reasonable doubt, if they couldnt the case doesnt go to jury or in case of bench trial the judge, the case is dismissed. In common law the female had to resist to the utmost. In modern times there must be reasonable resistance in some states, some dont require any resistance. Jury decides persons guilt. Patterson v. US 479 A. 2nd 335 The prevailing view in this country is that there can be no rape which is achieved by fraud, or trick, or stratagem.

Seduction made a criminal statute by some jurisdictions. Fraud in Factum False facts about the act itself. Is rape. Not a defense. Fraud in the inducement its all in the external. False facts about the environment. Is not rape. Can be used as a defense. Martial Immunity rule In 1736 Sir Matthew Hale stated that a husband cannot be guilty of rape committed by himself upon his lawful wife, for their matrimonial consent and contract the wife hath given up herself in this kind unto her husband, which she cannot retract. It was adopted by most American legislatures as part of the original definition of rape. In common law the wife was virtually the property of her husband. Today the general understanding of most marital partners is that each consents generally to have sexual intercourse with the other, subject to the right of either to refuse on particular occasions. Recent statutory reforms have eroded the marital rape exemption. Today men can be convicted of marital rape. Problems of Proof 3 areas Requirements of corroboration Jury instructions relating to the complainants credibility And rules relating to cross-examination. Types of Rape: Forcible rape under Rule Rape by Statute Rape by deception Mere w/o consent United States v. Wiley Corroboration- means supporting evidence. Doesnt say whether a claim is true or not but just supports the claim. At common law the testimony of the alleged victim was sufficient to uphold a conviction for rape, her testimony did not need to be corroborated. However a minority of states have incorporated the corroboration requirement. This is under the rule that no person shall be convicted of rape upon the uncorroborated testimony of the alleged victim. Common law ultimately rejected corroboration for all crimes except perjury. Court rule of corroboration Independent corroborative evidence will be regarded as sufficient when it would permit the jury to conclude beyond a reasonable doubt that the victims account of the crime was not a fabrication. No American state now requires corroboration.

Model Penal Code Requires both corroboration and a special jury instruction warning the jury to evaluate the complainants testimony with special care. Shield laws In the past a person could be examined on her sexual resume dating back to her first encounter. Rape shield laws prevent this type of questioning. There are some exceptions. Men charge with rape and those who represent them have few options but to attack the incredibility of the woman victim. Many judges and prosecutors remain ambivalent about the expansion of rape liability: unwilling to continue to afford men the privilege of aggression, but also chary with their sympathy for women who should know better. Today the debate is about when to believe a woman and about what we need to know about the woman before we can decide whether to believe her.

Theft Offenses
The means of acquisition. Commonwealth v. Tluchak Issue: Are sellers who refuse or fail to deliver goods sold to their purchasers guilty of larceny? Holding/Rule: One who is in lawful possession of the goods or money of another cannot commit larceny by feloniously converting them to his own use, for cannot be committed by one who, being invested with that right, is consequently incapable of trespassing on it. Reasoning: Appellants may have been guilty of fraudulent conversion, or of larceny by bailee if the theory is accepted that a vendor retaining possession of goods sold by him becomes constructively a bailee of the purchaser, and criminally culpable for failure to deliver them to his purchaser. Appellants were indicted of larceny only and of that they clearly were not guilty. Larceny (Specific intent crime) Trespassory taking or carrying away the property of another from their possession w/ the intent to permanently deprive. Trespassory means taking from the possession. Possession means dominion and control over an item and you have to intend to exercise control. Mens rea means you intend. Actus Reus mean exercise control. You must be in charge of it. Actual possession is on or about your person. Constructive possession is not on or about your person but you still intend to control and exercise your control. e.g. clothes in your closet. There can be joint possession. Owned by two or more people. Sole possession is owned by one person.

Only personal property can be stolen or taken. Has to have asportation. Must intent to permanently deprive. Mr. Brown has parked his car at the front of his house at night. In the morning he woke up and his car wasnt there. The police found his car 2 blocks from his house. John Does finger prints were found on the steering wheel. Mr. Brown has contructive possession cause he has the key, and he intends to exercise the dominion of control. Is there a charge of Larceny? Mr. Brown had constructive possession of the car. Asportation (actus reus) Larceny, both at common law and under statutory formulations, requires a carrying away (asportation) as well as a trespassory taking. Courts have substantially minimized the significance of the requirement by holding that any movement of the thing, no matter how slight, is sufficient, problems may still arise. Any movement from the original resting place however slight. Trespassory moving with intent to permanently deprive. Concept of Larceny is vi et armis with force and Arms. Invito domino - against the will of the owner In a self service store the store is consenting to the defendant trying on and carrying around items. The owner has consented for a limited purpose. P 956. Nolan v. State Issue: Do the facts in the case support a conviction of larceny or a conviction of embezzlement? Holding/Rule: If goods were taken from the owners possession the crime is larceny, not embezzlement. Goods which have reached their destination are constructively in the owners possession although he may not yet have touched them and, hence, after such termination of transit, the servant who converts them is guilty of larceny, not of embezzlement. Reasoning: The money was not taken by Mr. Nolan until it had been placed in the cash drawer and balanced at the end of the day. It was in the possession of the Federal. Judgment: Case remanded for further proceedings in order that the state may try the defendant on an indictment for embezzlement and larceny. Legal or constructive possession Misappropriation The use of anothers property or money dishonestly to ones own use. The misappropriation of the property occurs while the defendant has lawful possession of it. In larceny it occurs generally at the time the defendant obtains wrongful possession of the property.

Model penal code eliminates the requirement of an asportation and substitutes the requirement that the defendant exercise unlawful control over the movable property. Think about crime against person and crime against property. Also think about statutory crimes and regulatory crimes. Regulatory crimes are a form of statute and are strict liability crimes. Embezzlement The fraudulent conversion of property of another by a person, agent, employee, servant, or other fiduciary in the course of their employment. Embezzlement lies when there is no larceny. You cant have both. For embezzlement you do not have to permanently deprive. You have to have possession of it. Master Servant Third party ?

If the master gives his servant money to give to a third party and the servant doesnt take the money to the third party then the charge is larceny because the master has possession of the property. But if the servant takes the money to the third party and the third party tells the servant to take some bananas back to the master, and the servant doesnt take the bananas to the master but takes them home and makes banana pudding then the charge is embezzlement because the master never had possession of the property. He would also be charged with larceny by trick because he fooled the third party into believing that he was going to take the bananas to the master. Robbery Some jurisdictions say robbery can be by stealthy seizure. I. Robbery (specific intent crime) a. Larceny plus assault b. Taking and carrying away c. the property of another d. with intent to permanently deprive e. by force f. threat of force g. or stealthy seizure Robbery is Larceny + Assault The taking of something by force and violence Arson

The malicious Burining Of the dwelling of another Common law burglary The breaking and entering the dewelling of another in the night time w/ intent to commit a felony therein. Modern law burglary Breaking and entering Can be without breaking structure The dwelling, offices or any other structure In the nighttime or daytime With intent to commit a crime (any crime) False Pretenses specific intent False statement of a past, present, or existing fact, not future fact, can be orally, written or by gesture. Person knowingly made the statement, with intent to defraud, victim relies on the statement, victim gives something of value. Title and possesion given. Real property and personal property. A tells B that he would sell the Brooklyn Bridge to him for $10,000. This would be False pretenses because A lied on the fact. He passed title and possession.

Larceny by Trick Receiving possession of property by trick Given for special purpose Passing of possession not title. Receiving stolen property Receiving possession and control Of STOLEN personal property By another

CW

3rd

Having known to obtained it in a manner representing a criminal offense With the intent to permanently deprive

Transferred intent. X aims a C but hits B instead. Transferred intent says that X intended to hit C but hit B. So the intent to hit C will be transferred to B. X C Forgery specific intent The making of a false document or altering of a document with intent to defraud. Example. Adam writes his name on Donnas check without authority. Uttering specific intent The negotiating (passing) of a false document with intent to defraud. Example After taking that check that belonged to Donna and writing my name on it without authority, I then go and cash check at bank. Be able to tell straight larceny from embezzlement and False pretenses from larceny by trick. Receiving stolen property Malicious Mischief Malicious Destruction of, or damage to; Property of another. Attempt II. B

Attempt a. mens rea intent to do the acts (take money; climb in house) b. actus reas overt acts on furtherance of that intent (do more than prepare and plan) i. tests for act 1. substantial step test a. looks backward how far you come from beginning b. Minority 2. Dangerous proximity Test a. looks forward how close you come to end

b. Majority 3. last step test a. must do last act just before completion of crime b. rejected 4. Equivocality test a. If look at actor can it be said that person is unequivocally about to do crime b. rejected Three people think about burning down the house. The plan it get the materials and get in the car and get on the way. They get about a mile away have they attempted to burn the house? The get to the front yard have they attempted to burn the house? The start to soak the grass with gasoline, have they attempted to burn the house? One part is preparation, one part is attempt. When does preparation end and attempt begin. 3

At common law Attempt was a misdemeanor. Today the majority punishment for attempt is a reduced factor of the punishment for the completed crime, however a minority of states have said that the punishment for attempt is the same as for the completed crime, except for crimes punishable by death or life imprisonment. Attempt v. Preparation No clear guidelines. To constitute a criminal attempt, the first step along the way of criminal intent is not necessarily sufficient and the final step is not necessarily required. The diving line between preparation and attempt is to be found somewhere between these two extremes; but as to the method by which it is to be determined the authorities give no clear guidance. Locus Penitentiae an opportunity to repent, to change ones mind Equivocality Test. This test tests how clearly the intentions of the defendant are. An alternative to the dangerous proximity test. (once intent is proven) An attempt to commit a crime requires that the actor have an intent to perform acts and attain a result which, if accomplished, would constitute such crime and that he does act toward the commission of the crime which he demonstrate unequivocally, under all the circumstances, that he formed that intent and would commit the crime except for the intervention of another person or some other extraneous factor.

Dangerous proximity test Joe who over a period of time decides to break into an art gallery and take a valuable painting. During the time he studies the security of the art gallery, the floor plans of the art gallery, traffic flow from the art gallery, He gets two ladders and some rope. On the evening of the robbery he is sitting in the truck with the ladder and the rope, and he sees his neighbor in the building next door, and the building is on fire and he does nothing. He doesnt know the neighbor that well. By this time an Olympic athlete comes by and sees the fire, she asked Joe for a ladder to help the woman. Joe says no, she hits him with a Judo kick, and takes the ladder and saves the woman. Joe takes the other ladder and proceeds with the plan. He gets all the way to the top and cuts the wire, and the police show up and arrest him. The cops realize that even though Joe did a lot of planning, there was no art work in the building.

ISSUES Robbery Attempted Larceny Impossibility Robbery Necessity a safety valve in the law. Choice between lesser of two evils. Burglary Omission In first paragraph you will list all the issues of the case. You burglarize premises and you rob people.

Impossibility Impossibility deals with the attempt of the offense not the completed offense. In impossibility because you can do the completed crime can you be charged with the attempt of a crime? Two types of impossibility Factual impossibility and Legal impossibility At common law a factual impossibility was not a defense. Legal impossibility was. In modern law neither impossibility is not a defense. Factual impossibility - a claim of factual impossibility arises out of defendants mistake concerning an issue of fact. Legal impossibility Where a defendant commits an act he believes is forbidden, but it turns out to be legal. Where the defendant is mistaken about how an offense is defined. Ex Someone tries to pick pocket a victim but there is no money in the pocket: Factual Someone buys property and he thinks it is stolen but it is not: Legal A man shoots a manican in a char: legal A man shoots a dead person in the street: legal A scoundrel has intimate relations with a person thinking she is 15 when she is actually 21: legal When joe got to the top of the ladder and realized there was not picture in side: factual When the dude came to DC and tried to shoot Clinton but he was not there: factual The crucial distinction is if do what you set out to do and it is not a crime it is legal impossibility. But when you attempt to commit a crime, and there is a fact that makes it impossible, then it is factual. PRINCIPAL (are at the scene of a crime) A person may be principle in an offense in two degrees o A principal in the first degree is the actor or absolute perpetrator of the crime. o A principal in the second degree is a person that is present, aiding, and abetting that fact to be done. Constructive presence is when the actor commits a crime, and another keeps watch or guard at some convenient distance. Under common law a principle in the second degree could not be found guilty if the principle in the first degree was not found guilty. Modern law does away with this rule. Not necessary that each actor does all the elements to be guilty of a crime. Must have the intent to associate themselves with the criminal venture and must have overt acts towards the furtherance of the crime.

ACCESSORY (not at the scene of a crime) is a crime

Is the person that is not the chief actor in the offence, nor present at its performance, but is some way concerned therein, either before or after the fact committed. o Accessory before the fact A person that is absent at the time of the committed act, yet he helped plan, counsel, or command another to commit the crime. o Accessory after the fact Where a person having good reason to know a felony to have been committed, receives, relieves, comforts, or assists the felon in avoiding apprehension. Modern states have largely eliminated the significance of these discrete modes of criminal participation. Apart from accessory after the fact, the punishment is the same for the three main modes of complicity. No longer the case that accessories to crime cannot be convicted until their principal is convicted (it must be proved that a crime was committed). No longer required that the defendant be charged with some sort of complicity. He may simply be charged with the substantive crime committed by the person the defendant aided or encouraged. Sufficiency of the evidence is whether a reasonable juror could find guilt beyond a reasonable doubt. Before crime Accessory During crime After crime Aiding and Abetting Accessory Present Aiding and Abetting (A Theory, not a crime). If aiding and abetting is present you dont charge them with aiding and abetting you charge them with a real charge on the theory of aiding and abetting. Ex. Larceny on the theory of aiding and abetting. c. Theory of finding a crime no charge d. Person must be present e. Mere presence is not enough f. Intent by aider and abbedor to be part of the crime (intent to participate in crime) g. Looking for overt acts in furtherance for the crime (not element of crime/ can be but does not have to be) h. Not necessary that one person does all the acts. Group activity together is enough to meet all elements of crime i. No defense I only did some of the acts. j. Mens Rea i. Intent to associate yourself with the criminal venture ii. Intent to make criminal venture go further k. Actus Reus i. Overt act directed to move crime forward l. Common Law i. Principal in 1st degree person who actually engaged in the act

ii. 2nd degree is person who aided, commanded or encouraged the principal and was resent at crime m. Modern Law i. All actors are aiders and abettors no distinction between principles.

Conspiracy
An agreement between two or more real conspirators to accomplish an unlawful objective. Black letter law states that all participants in a conspiracy need not know each other; all that is necessary is that each know that it has a scope and that for its success it requires an organization wider than may be disclosed by his personal participation. Both at common law and under statutory formulations, conduct can be punishable as a conspiracy at points much farther back in the stages of preparation that the point where liability begins to attach for attempt. Some some as to if an overt act is needed. Some instances conspiracy is punishable without it and in other situations an overt act must be proved, but the act may fall well short of the kind of conduct sufficient to constitute an attempt. Common law said once u agree that is all you need. American conspiracy statutes have typically added an overt-act requirement. However not unusual for statutes to dispense with this overt-act requirement in the case of conspiracies to commit the most serious offenses. Some states require a more substantial overt act. Doing the act is the substantive crime Just because you know of a criminal act doesnt make u a conspirator. Have to have intent. Intent may be inferred from knowledge that there is a stake in the venture. Intent may be inferred from knowledge, when no legitimate use for the goods or services Intent may be inferred from knowledge when the volume of business with buyer is grossly disproportionate to any legitimate demand, or when sales for illegal use amount to a high proportion of sellers total business. Traditional view is that any overt act suffices to render conduct punishable as a conspiracy. There an ongoing debate on conspiracy. People say it is too vague. The difference between conspiracy and accessory before the fact. (both happen before the crime). III. Conspiracy (specific intent) a. Agreement between two or more persons to accomplish unlawful objective a. Common Law

i. Real conspirators are not law enforcement agents b. Modern Law i. Does not matter c. Mens Rea i. Intent to accomplish unlawful objective ii. Intent to agree d. Actus Rea i. Common Law 1. the agreement itself ii. Modern Law 1. Agreement plus the overt act e. Theories of Conspiracy i. Pinkerton Doctrine 1. if you conspire and enter in an agreement the results of your agreement if implemented, will hold you liable for conspiracy and substantive crime even if not present 2. substantive acts that are object of the conspiracy ii. New York Rule 1. Conspirators must be present at substantive offense to be found guilty 2. Will be charged with conspiracy and hold the substantive crime to who was present. f. Withdrawing from Conspiracy i. Before substantive crime happens must go tell police. Have to let authorities know before crime occurs. g. Impossibility to achieve what u set out to do. No defense under modern law h. Compare accessory before the fact and conspiracy. No agreement in conspiracy before the fact and not equal; i.e. person or persons telling others what to do. Conspiracy is an agreement and they are all equal. i. Liability of the parties. Tradional common law needed 2 or more real conspirators. Real meaning non police or something of that nature. Modern law says that you be found guilty of conspiracy even when agreeing with a police officer or feigned accomplice. 1,2,3 come to an agreement to blow up a building. It happens and at the scene of the property there is a b who do the blowing up. What crimes would u charge 1,2,3 with and what crime would you charge a b with? What happens if no explosion happens. The police find out about it and arrest all parties and 3 turns state evidence. What would be the charge. What if it did happen and 3 was at the scene with A and B. A gets dynamite B explodes it and 3 gets the car ready for escape.

What charges with the substantive crime?

Defenses
you must raise the defense or it is waived. Defendant has burden of raising, Government has burden of proving that there is no defense.

Self-defense
Is a doctrine exonerating the taking of human life. Self-defense begins and ends with necessity. Never must the necessity be greater than when the force employed defensively is deadly. Necessity must bear all semblance of reality and appear to admit of no other alternative, before taking the life of another is justifiable. The defender must have reasonably and honestly believed that he was in imminent peril of death or serious bodily harm, and that his response was necessary to save himself therefrom. Elements Must have a threat, actual or apparent, of the use of deadly force against the defender. Threat must be unlawful and immediate. Defendant must have reasonably and honestly believed that he was in imminent peril of death or serious bodily harm And that his response was necessary to save him Use the reasonable man test to determine. Questions to ask: Who is the aggressor? Was there a honest reasonable belief of danger? Was the force used reasonable or excessive? Rule Where a person has an honest and reasonable belief of imminent danger to himself or property, then they can use reasonable force to protect themselves. (Self Help) Begins and ends when necessity goes away. b. Self Defense

i. Affirmative defense ii. Where one has an honest and reasonable belief that there is imminent danger of bodily harm or death iii. And it is necessary to use fore to protect oneself then that force must be reasonable and not in excess. (party is not confined to the exact force used by other party i.e. if attacked with bats, not required to defend only by use of bats) iv. 3 questions to ask in consideration of self-defense 1. who is the aggressor a. who created the imminent danger b. generally the aggressor cannot claim self-defense c. if the original aggressor withdraws then he regains his rights to self defense. d. Retreat doctrine, except in your home, you have a duty to retreat when reasonable. Not a rule in criminal law. 2. was the force necessary a. was there an honest reasonable belief of imminent harm 3. measure of force a. was the force excessive b. was it reasonable c. Retaliation is not self defense c. Defense of others i. 3rd person right to use deadly force to protect against an attack, under the same circumstances that would justify the use of deadly force by the endangered person herself. ii. 2 theories 1. Same shoes doctrine (majority) a. 3rd person is in the same shoes as the person he is helping b. if the 3rd person is in the aggressors shoes (maybe mistakenly) he will be liable 2. Good Faith doctrine a. Someone interferes in good faith b. A had good intention and in good faith believed that B was in trouble. If B turns out to be the aggressor, the Good Faith doctrine will prevent A from being prosecuted d. Defense of property i. Taking of life to defend property is not justified ii. Must be reasonable defense iii. Can use reasonable force. iv. Cannot use force calculated to cause death.

Entrapment (Confess and Avoid) You confess the crime, and you avoid the punishment. This defense also allows for the government to bring in other evidence. Majority rule (subjective rule) Where the government acting through agent or someone on their behalf, creates a criminal design, induces someone to commit the crime in which they would not ordinarily do, then when the crime is committed they prosecute them for it. v. Government cannot induce, or encourage someone to commit a crime that others were not disposed to commit and then prosecute. vi. Police officer causes a person to do something they would not ordinarily do. vii. If person is already predisposed and government gives an opportunity then not entrapment Minority rule Objective test is when you just look at what the government did, and if the governments behavior exceed fair and due process, then there is entrapment. Look for behavior from a government agent or someone that works with the government. Jacobson v. United States 503 US 540 Necessity viii. Affirmative defense ix. There must be a choice of lesser of 2 evils x. Common law 1. must arise from natural source 2. imminent danger 3. no ready alternatives 4. did not create problem xi. Modern Law p. 811 1. specific threat of death, forcible sexual attack or substantial bodily injury in the immediate future 2. no time for a compliant to the authorities 3. no time or opportunity to resort to the courts 4. no evidence of force or violence used towards prison personnel or other innocent persons in the escape 5. must immediately report to the proper authorities when safe from the immediate threat. 6. person claiming cannot create the peril 7. will not justify taking a life. Necessity There is no good answer to this solution, thus you must take the lesser of two evils, and no ready alternative. Person who claims necessity cannot be the person that created the problem, and you cannot take a life. Threat of harm must come from a natural source or force. Duress xii. Affirmative defense

There must be a choice of lesser of 2 evils Usually stems from a human threat Not guilty of criminal offense (other than homicide) Threat of imminent infliction of death or great bodily harm Reasonable belief that death or great bodily harm will be inflicted on himself or on a member of his immediate family if he does not perform such conduct. xviii. Threat to harm any third party may also suffice to establish the defense of duress. Duress Comes from a human force, not a natural force. A human making someone do something. NECESSITY

xiii. xiv. xv. xvi. xvii.

Self defense necessity -- Defense of others Duress -- Defense of property

Intoxication
xix. xx. Evidence of intoxication may exist whenever the intoxication negates the existence of an element of a crime Some courts allow as defense, some never allow as defense Voluntary 1. The result of the intentional taking without duress of a substance know to be intoxicating. 2. person need not have intended to become intoxicated 3. Defense to specific intent crime a. When is charged with a crime that requires purpose or knowledge to establish that the intoxication prevented the from formulating the requisite intent. b. Partial defense to specific intent crimes c. Not sufficient defense to general intent crimes and recklessness. d. Not available if the purposely becomes intoxicated in order to establish the defense. xxi. Involuntary 1. Use the Insanity rules 2. Is a defense general intent crime

3. intoxication is involuntary only if it results from the taking of an intoxicating substance a. without knowledge of its nature b. under direct duress imposed by another, or c. pursuant to medical advice while unaware of the substances intoxicating effect. d. Defense for all crimes and strict liability

Intoxication negates the second offense. E.g, Assualt with intent to kill. If defense for intoxication is granted defendant would only be tried for Simple assault. If involuntary use insanity rule. In voluntary, it is no defense to general intent crime. Partial defense to specific defense crime. Common law authorities seem to imply that evidence of intoxication was never admissible to negate mens rea, whether or not it was logically relevant to the mens rea at issue. Hood states that evidence of intoxication could be considered in determining specific intent, but not general intent. ADW Specific intent S/A General intent Rape General intent Larceny Specific intent Burglary Specific ntent AWIK Specific CDW general intent

Insanity (mental state at time of act) No such thing as temporary insanity. Cannot have insanity defense without mental illness.
Insanity at the time of the offense is usually a defense to a criminal charge. A person who is insane may not be tried, convicted, or sentenced. Neither may a such a person be executed if convicted of a capital offense. Under many state statutes, a person who becomes insane while in prison must be transferred to a mental hospital. Competency to stand trial (mental state at time of trial) o Can the defendant understand the proceedings o A person can be competent at trial and still suffer from insanity. o Model penal code states the No person who as a result of mental disease or defect lacks capacity to understand the proceedings against him or to assist in his own defense shall be tried, convicted or sentenced for the commission of an offense so long as such incapacity endures. Some courts have permitted forcible medication of defendant in order to render them competent to stand trial. If a judge finds that the defendant is suffering from total amnesia concerning the alleged crime but is otherwise in full command of

her faculties, most courts hold that the defendant is competent to stand trial. All states bar the execution of a condemned prisoner who becomes insane. Outer circle is lay They do nothing with insanity Middle circle is Medical Focuses on treatment The smallest circle is legal Focuses on the defense for insanity. Govt Govt Jury can find W1 W2 W3 W1 W2 W3 Rebuttal Guilty, Not Guilty, NG by Insanity NG by Insanity is automatic commitment to hospital. Post trial Bolton hearing. The question at hearing is what is the defendants state of mind right now? Judge determines whether the defendant is ill and dangerous (insane). If defendant is found to be ill and dangerous he goes to the hospital. He may be held indefinitely and for entire life. If he is found to be sick and not dangerous then he is set free. If he is neither sick nor dangerous then he is set free. Bolton Test o Once found not guilty by insanity you dont get out of the hospital unless you can show that: you are not sick anymore or; you are sick but are no longer a danger to anyone 5 tests to insanity 4. MNaghten Rule a. A disease of the mind b. Caused the defect of reason c. Such that the defendant lacked the ability at the time of his actions to either i. Know the wrongfulness of his actions; or ii. Understand the nature and quality of his actions 5. Mad Dog Test a. Not used anymore b. Not insane unless your are acting like a rabid dog and foaming at the mouth 6. Durham Test a. Said other tests too one dimensional b. A is entitled to acquittal if the proof establishes that his crime was the product of mental disease or defect. c. A crime is the product of the illness if it would not have been committed but for the disease 7. Model Penal Code

a. Under this test the is entitled to acquittal if the proof shows that he suffered from a mental disease or defect and as a result lacked substantial capacity to either i. Appreciate the criminality of his conduct; or ii. Conform his conduct to the requirement of law 8. Irresistible Impulse Test a. Person commits a crime that he knows is wrong because of an irresistible impulse to commit the crime Instructing the jury In jurisdictions that provide for mandatory commitment following an insanity acquittal, defendants have pressed to have the jury informed of that fact because the jury may otherwise assume that an insanity acquittal will lead to the release of a dangerous, mentally unstable individual. Most courts have held that the jury should not be instructed on the procedures that follow an insanity verdict, on the ground that what will happen to the defendant is not relevant to whether the defendant met the test of legal insanity. The Supreme Court has held that juries should not be informed of the mandatory commitment provisions applicable under federal law. Many state courts now hold that where commitment is mandatory, the jury should be informed that a defendant found not guilty by reason of insanity must be detained until it is determined that she is no longer mentally ill and dangerous. Burden of proof 2 issues 1. how much evidence need be presented before the effect of the presumption disappears and the question of the defendants insanity becomes an issue that must be established by the evidence? 2. Where the issue must be established by the evidence, who bears the burden of persuasion, and how is that burden defined? 1. Some states require only some evidence of legal insanity in order to eliminate the presumption of sanity. Others require more, usually that the evidence raise a reasonable doubt about the sanity of the accused. 2. The majority, including federal courts, place the burden of proof of insanity on the defense. For federal courts the defendant has the burden of proving the defense of insanity by clear and convincing evidence. The minority requires the prosecution to prove the sanity of the defendant beyond a reasonable doubt.