Introductory Information

Theories of Punishment 1. Rehabilitation 2. Incapacitation 3. Retribution - Deontology - Backward looking 4. Deterrence - Utilitarian - Forward looking - Specific that person - General society - Marginal raising for next severe level of crime - Certainty x Severity Criminalization - Legislature chooses what actions are crimes represent community o Reason why incoherent - Mill Harm Principle harm for crime o Breaks down because harm means different things to different people - Majority not embrace and shot down ick factor, but still present o Wanted to base on policy - Scalia Parade of Horribles slippery slope to everything legal didnt work Legality Principle - Legislature must define before acts of crime are committed - Court can interpret o History o Science o Dicta free to choose and change Vagueness - Vagueness is unconstitutional because need adequate notice under 14th Amendment - Very rare: o 1. Super vague language o 2. No notice o 3. Arbitrary and discriminatory enforcement - As applied or facially challenged for entire statute and future happenings - 2 exceptions: o Tolerable Vagueness no other way to say o Degree of Necessity reasonableness, substantial, habitual

The Criminal Act

Common Law - Act, omission, or possession - VOLUNTARY as long as have a choice - Involuntary: o Physical coercion o Reflex o Paralysis or contraction crimes by omission o Unconsciousness not sleep walking - Impaired Consciousness case by case: o Concussion o Somnambulism sleep walking o Hyperglcemia/Hypoglycemia medical condition - Omissions failure to render assistance: o 1. Failure to Act o 2. Duty violated by failure to act Statutory Duties Common Law Duties: Relationship parent/child or spouse Contract or employment responsibility Voluntary assumption of responsibility o Scope defined to what assumed o If know how got unconscious, then obligation to render medical assistance MPC - Bodily movement that otherwise is not a product of the effort or determination of the actor, either conscious or habitual DO NOT want to punish thought crimes or status offenses

The Criminal Mind

Common Law - Prove mens rea by looking at planning activity, nature of crime, covering up, crimes of revenge inferences may be necessary - Each crime is own island - Mens rea is foreign language - Cloud of words - If mistake of fact... (otherwise just assume have to prove mens rea) o Textual Analysis Grammatical ambiguous Is the word in the middle ambiguous and can separate Higher level Intentionally, purposefully, maliciously, knowingly, willfully Defendant friendly specific intent honestly mistaken Lower level Negligently, recklessly, unlawfully, feloniously Prosecution friendly general intent honestly and reasonably o Policy Issues statute as a whole Punishment theories Deterrence for less common mistakes general intent Retribution for more common mistakes specific intent Incentives under two rules Historical theft, assault, homicide specific intent If no mens rea, still may be Special class like children general intent - Grading Elements amount, quantity, value strict liability MPC - 3 different acts: o 1. Conduct o 2. Circumstances o 3. Result - 4 mens rea standards: o 1. Purpose conscious object o 2. Knowledge practical certainty o 3. Recklessness DEFAULT Conscious disregard for substantial and unjustified risk AND gross deviation from standard of conduct of law abiding person o 4. Negligence Should have been aware of substantial and unjustified risk AND gross deviation from standard of care of reasonable person - Hierarchy can prove with higher level - No substructure, then mens rea applies to whole thing - Grading Elements based on mens rea - Mens rea is more privileged

Ignorance or Mistake of Law Common Law - NOT a defense only the highest courts final decision mater and even then can change mind o Mistake of non-criminal law is a mistake of fact - Narrow constitutional exception extreme passivity and unaware of the law o Not successful look to other states and should have known MPC - At odds with mens rea, so 2 exceptions: o Official misstatement by attorney responsible, mayor, court opinion NOT for any lawyer or circuit split o Availability of the law - Few jurisdictions even try to make more protective diligent investigation Intoxication Common Law - General intent NO - Specific intent o Majority NO o Minority allows but burden shifts to defendant Preponderance of the evidence that intoxicated and that intoxication impeded ability to have required mens rea MPC Rejected (even though mens rea elevated policy) Public Welfare Offenses - 3 Characteristics: o 1. Crime applied to business entity o 2. Usually subject of regulatory body o 3. Usually very low penalties - Hold to higher responsibility for extra deterrence and come out from golden parachute - Weird because no harm - If have no power, can use as defense not work really - Strict and vicarious liability o Prove status and offense Impossibility Burden on defendant Common Law - Factual (guilty) v. Legal (exonerated) impossibility really depends on whether defendant is sympathetic MPC NO impossibility unless voodoo doll exception Abandonment Burden on defendant CAN NEVER abandon failed attempt Common Law - Majority NO such a small window anyway - Minority yes if voluntary victim not flee, attack, resist, or 3rd party intervene MPC Same test, but different effect because big window to abandon

Attempt
- Mere preparation v. Attempt - 2 types failed attempts and incomplete attempts Common Law Act Requirement - Overt Act o Forward looking dangerously close Proximity test how close to being committed Defendant friendly gives chance to change mind Mens Rea - Act so late that difficult to doubt - Minority general intent o Does not make sense because can not intentionally take a risk if not intend a crime negligence/recklessness - Majority specific intent o Overrides substantive mens rea of crime o Beware of intoxication defense MPC Act Requirement - Overt Act o Substantial step backward looking Lying in the wait, enticing, recon, unlawful entry, possession without any lawful purpose, soliciting an innocent agent NOT exhaustive Prosecutor friendly o AND strongly corroborative has to be connected to particular crime Mens Rea - PURPOSE - Knowledge for circumstances sometimes Extra Information - Internet is more difficult because never dangerously close and no soliciting because solo crime o Overcome with substantial step language or pass laws with mere advertising and pondering is enough o Also, solicitation and conspiracy

RAPE
COMMON LAW Act Requirements 1. Force Requirement - Majority do NOT require - If required, body weight or penetration is NOT enough - Light push is enough - Constructive force or threat of force is enough 2. Consent Requirement - Consent or non-consent; against her will - Hard to define because unlike other crimes that are verbal - Consent cannot be born out of threat of force or actual force - Can revoke consent (MD case changed) - Consent is not affirmative non verbal o Antioch College - INTOXICATION o Nature and consequences test If do not understand consequences, then cannot legally consent to sex. Look for external evidence fall down drunk 3. Sex Act - Minority is vaginal penetration carnal knowledge - Can define in different ways DO NOT inject resistance requirement

Mens Rea 1. Force Requirement - Specific intent 2. Consent Requirement - Majority uses general intent o Yermian problem - Minority uses specific intent (some strict liability but really specific) o Intoxication could be relevant here depending on jurisdiction 3. Sex Act - Specific intent Statutory Rape 1. Age of Consent - Varies from 12 to 18 2. Difference in Age - Majority includes varies from 1 to 4 years 3. Sex Act No mens rea words statutory interpretation analysis o 17 states allow mistake of age argument mistake of FACT o Majority is strict liability!

MPC Outdated Consent Act Requirement Intoxication o Cannot consent if unconscious or someone slipped drug o If voluntarily drunk and conscious, then can consent cultural norms Statutory Rape - Tiered approach o If victim is below 10 years old and perpetrator is 4 years older, then strict liability o If victim between 10 and 16, and perpetrator is 4 years older, then mistake is possible BUT defendant has to prove by preponderance of the evidence Extra Information - Recent reform in last 40 years - Real Rape = rape by strangers and the system is focused on this type - Simple Rape = victim knows perpetrator and most cases are actually this type - Rape is gender neutral - Rape can occur in marriage (not used to because unlawful) - Gender perception problem men and women view same threatening situation in different ways - Mutual mistake give to jury to who believes - Rape Shield Laws o Rules of evidence that shield victims because not allowed to ask about prior sexual behavior EXCEPT Prior sexual activity between victim and perpetrator If other sexual activity, raises doubts about who was perpetrator - 3 theories: o Rape is like assault Can consent to assault Both parties drunk 2 victims and 2 perpetrators o Rape is like theft Consent to rape is charity to theft Prior sexual behavior evidence is not relevant like past charity o Communication theory rape is miscommunication so have affirmative consent requirement like Antioch (bad theory) - Constitutional NOT to be gender neutral Rehnquist o Girls suffer differently because get pregnant o Women cannot handle sex as well at an early age Bad reason Statutory Rape - Ancient justification was that sex was independent moral wrong weakest - Modern justification is efficiency because difficult to look into mental maturity every case and defendants grow up, look different, jury confusion, etc. Also, make people take precautions. - Statutory rape is about NO ability to consent - Unchaste victim exception in Mississippi sex with anyone then NO statutory rape because evolved as defense to adultery - Strict liability for prison guards power unequal and fear retaliation because other guards -

Homicide
Act Requirement 1. Death 2. Causation - COMMON LAW But for causation - MPC Proximate cause reasonably foreseeable at time of cause that death would occur o More narrow o Foregoing medical treatment is not intervening Mens Rea Murder Common Law First Degree 1. Intent to kill or cause grievous injury 2. Premeditation - Can be formed in an instant 3. Deliberation - Moment of reflection or contemplation opportunity for moral reflection - Repeated blows does NOT show deliberation CANNOT infer evidence length of time is not evidence o 3 types of evidence: 1. Evidence of planning 2. Evidence of motive 3. Evidence of manner of killing Poison and lying in wait Second Degree 1. Intent to kill or cause grievous injury OR deliberate indifference - WITHOUT premeditation and deliberation no evidence - Shoot or drive into a crowd o Alabama universal malice possible to have undefined homicide MPC Murder No difference between first and second and NO premeditation and deliberation 1. Purpose or Knowledge OR 2. Reckless under circumstances extreme indifference

Voluntary Manslaughter Common Law 1. Provoked - Minority use the Ashworth Categories (mixed fact and law evidence to give to jury) o Proper: Angry words followed by assault Sight of friend being beaten Sight of citizen unlawfully deprived of freedom Sight of man in adultery with wife o Improper: Words alone Affronting gestures Trespass to property Misconduct by a child or servant Breach of contract All others - Modern Hybrid Approach Maher v. People Majority (harsher) o Subjective actually provoked o Objective reasonable person would be provoked NOT purely objective o Legally adequate baseline - Ashworth 2. NOT Cooled Off - Subjective still in heat of passion - Objective reasonable person still in heat of passion - Legally adequate baseline time? MPC 1. Provoked (almost always goes to jury) - NO legally adequate baseline - Subjective - Objective 2. NOT Cooled Off - Subjective - Objective Each provocation might have different cooling time depends on lump together or single

Involuntary Manslaughter Common Law - Reckless or negligent o Norms and lot of ambiguity unless drunk MPC - 2 types: o Negligent homicide driving o Recklessness drunk driving aware of substantial and unjustified risk

Felony Murder Rule STRICT LIABILITY Strange because huge punishment upgrades lesser offense and criminalizes behavior not normally Rationale some crimes so dangerous with secondary effects that want to deter plus Depends on how aggressive the prosecutor is

Common Law 1. Felony or attempted felony - Any crime with maximum possible penalty over 1 year in prison - Possession NOT count UNLESS possession with intent to sell 2. Death - Death of accomplice could be - Death via heart attack, etc. 3. During the commission - Could be fuzzy like theft 3 Limitations: o 1. Inherently dangerous entire category subjective impression without math Look for use of deadly weapon o 2. Causation Bring back to normal o 3. Merger Integral part of death then merge So dangerous that merges middle ground with 1. Very rare ALL accomplices liable Compromise list of crimes o Robbery o Rape o Deviate sex o Arson o Burglary o Kidnapping o Felonious escape PRESUMED CAN REBUT BURDEN ON DEFENDANT

MPC -

Attempted Felony Murder Florida - NO ONE DIES, but still responsible - Death ALMOST occurred makes more sense for failed attempts - Even less sense if attempted felony

Extra Information - 4 types of murder malice aforethought o Intent to kill and knew would die o Intent to inflict grievous bodily harm or knew harm would result o Reckless indifference to death (depraved mind, wicked disposition, malignant heart) o Death while engaged in felony - 3 types of manslaughter NO malice aforethought o Intent to kill but in heat of passion o Engaged in reckless or negligent behavior o Misdemeanor manslaughter rule - Premeditation and deliberation based on religion and moral theory - Omissions almost always first degree - Prosecution faced with multiple charges and jury can compromise or all or nothing with one charge Drug Possession with intent to sell Felony Murder Rule - Without causation, then fits o With causation, then more casual users like at a party can be connected - Courts are split on inherently dangerous category as a whole includes drug wars

Complicity
Guilty of crime that does NOT require separate charge Historically: o Principal of 1st degree o Principal of 2nd degree o Accessory before the fact o Accessory after the fact harboring fugitive separate crime Abrogation: o Principal always the primary perpetrator that commits the underlying acts Could be multiple o Accessory Assistor who is not the primary instigator and does not meet elements of crime MPC ALL ACCOMPLICES

Common Law Act Requirement - Aid and abet (overall crime spree is enough) - Failure to dissent IF silence means something more because of close relationship o NOT mean crime by omission because commission - NEVER requires communication and can still be liable if bad/ineffective o At some point so terrible that NOT go to police for example Mens Rea - Planned Offenses o Specific Intent No mistake of fact because planned! o Chaining Accomplices: At some point has to end... Hand first link cannot be accessory to third link, only second Parker first link is responsible downstream even though do not know because mistake is irrelevant to the crime - Unplanned Offenses o Minority specific intent Never convicted because always subjectively did not know o Majority Natural and Probable Consequences Rule Reasonably Foreseeable 2 or more people involved in prior criminal activity look for if knew had a gun No mistake of fact because reasonable person Good for deterrence - Different Mens Rea for Accessories and Principals o Majority Leak act requirement are derivative, but mens rea are NOT Still need to aid and abet though o Minority Dusenberry both act and mens rea are derivative

MPC Act Requirement (broader) - Purpose to promote or facilitate commission of the offense o Solicit o Aids or agrees or attempts to aid in planning or committing o Legal duty to prevent and fails to make proper effort Mens Rea - Planned Offenses o PURPOSE o Difficulty with chaining accomplices like common law - Unplanned Offenses o PURPOSE by very nature never held responsible - Different Mens Rea for Accessories and Principals o Act requirement are derivative, but mens rea are NOT Still need to aid and abet though Extra Information - If do not know who did acts, give to jury and charge all as principal and accessory - Limits of Accomplice Liability: o Lolita and statutory rape accessory CANNOT be both accessory and victim to same crime unless drug possession o Historically, could never charge accessory with greater charge than principal (except murder) because operating on strong derivative liability However, modern law allows to charge accessory even if never caught principal or principal died as long as prove fulfilled act requirement

Conspiracy
Common Law Act Requirement 1. Agreement - 2 people agree to something associated with criminal activity o Can be inferred o Once basic agreement, then chain other crimes o NEED 1 per conspiracy - Bilateral Agreement MUST be between 2 criminals - Unilateral Agreement just one other person, but can be police modern trend - Intentions do NOT matter 2. Overt Act - Minimal as long as someone does overt act 3. Vicarious liable for offenses of anyone in that conspiracy because linked together Mens Rea 1. Agreement - Specific intent 2. Overt Act - Specific intent unless stumble 3. Vicarious - Planned o Specific intent within scope of conspiracy - Unplanned o Majority Pinkerton Rule At time of agreement from any agreement Reasonably foreseeable Knowledge of gun is NOT necessary o Minority Specific intent had to know Can acquire knowledge after the fact Abandonment/Withdrawal/Renunciation - NOT recognize Impossibility - Whether defendant sympathetic burden on defendant

MPC (conspiracy NOT as needed because attempt so expansive) Act Requirement 1. Agreement - Rejects bilateral UNILATERAL 2. Overt Act Mens Rea 1. Agreement - Purpose of fulfilling object of that agreement 2. Overt Act - Purpose fulfilled unless stumble 3. Vicarious - Knowledge o Can acquire knowledge after the fact Abandonment/Withdrawal/Renunciation - 3 criteria: o Voluntary o Thwart Crime notify police in time might be enough o Actual renunciation by telling person of reasonable power - Burden on defendant Impossibility - Burden on defendant

Extra Information - Government invented to deal with organized crime o Harsher than attempt because no harm Over-punish because more dangerous together o Can charge with substantive offense and conspiracy Unlike attempt because cannot charge with attempt and substantive crime - CANNOT HAVE CONSPIRACY TO ATTEMPT o Can have attempt and conspiracy to commit MINORITY RULE BURLESON attempt and conspiracy are the same charge, so they merge Allow both to go to jury in majority because act requirements different - Unusual functions: o Special evidence rule to allow hearsay o Venue could lead to forum shopping - 2 functions: o Inchoate similar to problems with attempt o Vicarious liability each member responsible for actions of others - There can be enormous lapses in time - Depends on prosecution creativity o Break apart or link together as needed to get crimes/criminals

Affirmative Defenses
Justification and Excuse - Justification need to break law in order to prevent greater harm than causing o Civil Disobedience o Economic Necessity o Medical Necessity - COMMON LAW AND MPC: o 1. Choice of evils Based on defendants view of the world for evil, but societys view to balance Harm caused has to be less than harm averted o 2. Clear and imminent harm CANNOT be speculative o 3. Reasonably expect to avoid harm At odds with choice of evils o 4. No legal alternative Slippery because try legal alternative and does not work o 5. Legislative purpose Most fall apart real difference is what side of history on - Rely on prosecutor not prosecuting - HOMICIDE o COMMON LAW NEVER defense o MPC Could be defense, but harms choice of evils analysis Duress - Acts under duress are VOLUNTARY - Duress has to be physical and NOT reputational/emotional/monetary - COMMON LAW AND MPC: o 1. Choice of evils NOT limited to physical elements o 2. Threat of imminent bodily harm or death Most courts construe narrowly o 3. Reasonable belief that threat will be carried out Cannot be a joke or without the means to carry out o 4. No reasonable opportunity to avert harm Tough because can always call police - MPC MUST meet 1. BUT other 3 are like sliding scale - 3rd Party Duress: o Common Law: Majority NOT allow, so principal could go free and convict accessory Minority allow step into shoes (NOT available for justification) o MPC allow - HOMICIDE o Common law NO o MPC allows and could submit both justification and duress - Brainwashing and Coercive Persuasion NOT imminent (could be broader) - Mercy Killings Seems to fit, but strong legislature against and NOT in common law if it is a homicide statute or if do not allow 3rd party duress. If both missing, then possibly.