Focuses on moral culpability. Places an emphasis on specific deterrence by punishing the offender.
Focuses on the greater good for the community. Places an emphasis on general deterrence.
"Body of the crime" - Consists of two elements: In murder, death and the criminal agency responsible for the death.
Establishing Corpus Delicti
Circumstantial evidence is allowable. Uncorroborated confessions are not. Not necessary to have a body.
Common Law Felonies
5. Robbery; Burglary
The mens rea in common law murder. Can be established in one of four ways:
Intent to kill; OR
Intent to do great bodily harm; OR
Depraved heart; OR
Depraved Heart Murder
a. Conscious disregard for human life
b. Very High Risk
c. No provocation, justification or cause
Very High Risk
1. Driving at excessive speed when people are around
2. Shooting into occupied areas
3. Throwing stones from the roof of a tall building onto the busy street
4. Piloting a speed boat through a group of swimmers
5. Swooping a plane as to risk the decaption of motorists
Common Law Felony Murder
A death that occurs during or after the commission of a felony. Doesn't matter whether the death was purely accidental.
Common Law Felony Murder Limitations
a. Inherently dangerous
b. Reasonably foreseeable- causal connection between the death and the action
Only applies to felony murder to those felonies which are inherently dangerous such as burglary, arson, assault, rape, and kidnapping (BAARK).
Liability for a death occurring during the commission of a felony can fall upon any member of the criminal agency involved with the felony.
Common Law Involuntary Manslaughter/Criminal Negligence
Engaging in conduct that the actor should have known posed a very high risk of death or great bodily injury.
Common Law Involuntary Manslaughter
1. Reasonably Foreseeable; AND
2. Unreasonable (standard of reasonable person); AND
3. High Risk; AND
4. Substantial Deviation from the reasonable person
Common Law Voluntary Manslaughter
Requires three elements: 1. Heat of passion- subjective 2. Legally Sufficient Provocation- objective reasonable person 3. No reasonable cooling off period.
Legally Sufficient Provocation
a. Was D behavior consistent with human nature? (retributive)
b. Was it so emotionally intense? (utilitarian)
c. How many future cases like this could there be? (utilitarian)
d. Social, Cultural, Political consideration (classification of people you're around)?
Statutory 1st Degree Murder
A willful, premeditated, deliberate killing of another person. Killing by poison or lying in wait. Killing during the commission of one of the enumerated felonies.
Willful, Premeditated and Deliberate
Purposely, with enough time to frame the design to kill, and after considering the consequences.
Statutory Felony Murder
Intent to commit an inherently dangerous felony (BAAR) or make a felonious escape.
1. Intent to commit an Inherently Dangerous felony
3. Independent felony
Statutory 2nd Degree Murder
All other murders not falling under 1st degree are 2nd degree by default.
Great Bodily Harm
Depraved Heart Murder
Felony Murder- all other inherently dangerous felonies
2. Knowingly; OR
3. Recklessly Manifesting Extreme Indifference for Human Life (very high risk) *mention that this is the same as depraved heart; OR
4. Felony Murder (BAARK felonies)
Defendant acted in conscious disregard of a substantial and unjustifiable risk manifesting an extreme indifference to human life.
Killing someone recklessly or under the influence of an extreme emotional or mental disturbance.
Extreme Emotional or Mental Disturbance
Heat of passion (considered objectively) and diminished capacity (considered subjectively).
MPC Heat of Passion
Objective/subjective standard - reasonable explanation or excuse judged by reasonable person in defendant's circumstances. Words can be enough. Does not require legally sufficient provocation or lack of a cooling off period.
MPC Negligent Homicide
a. Reasonably foreseeable; AND
b. Unreasonable; AND
c. High Risk; AND
D. Substantial Deviation from a reasonable person
Common Law Rape
Forced sexual intercourse by a male upon a female not his wife
1. Sexual intercourse achieved
a. By deception or fraud
b. While female is asleep or unconscious, OR
c. If female is not competent to consent
By actual physical force or threats of actual physical force that can be carried out. If V submits out of fear of force that D hasn't threatened but D takes advantage of that fear it fulfills the force requirement.
Requires the victim's testimony of the rape to be corroborated through other evidence in order to be admissible.
Rape Shield Laws
Evidence of the victim's character regarding her past sexual conduct is inadmissible unless the past conduct involved sexual relations with the defendant.
Common Law Battery
An unlawful harmful or offensive contact intentionally caused by defendant resulting in an offensive touching or bodily injury
a. Means used to perpetrate offense
b. Resultant harm
c. Special status of victim
An unlawful, harmful or offensive contact caused by defendant which the defendant had the intent to cause or caused as a result of criminal negligence.
Includes domestic violence clause. Includes assault with the intent to commit murder and assault with the intent to commit great bodily harm.
a. Intent to create a more serious crime
b. Means used to perpetrate the offense
c. Special status of victim (assault of police officer in performance of duty)
Common Law Kidnapping
Forcible movement or secret confinement against the victim's will and without authority.
Factors to Determine Forcible Movement
1. Time elapsed 2. Distance travelled 3. Manner of movement 4. Exposure to increased risk 5. Whether, in the case where the kidnapping occurs with another crime, the movement continued after the crime was committed.
Factors for Determining Secret Confinement
1. Length of confinement 2. Character of the place of confinement 3. Character of victim - age, strength.
Common Law Burglary
Breaking and entering of a dwelling of another in the night time with specific intent.
Any physical force, no matter how slight. Can be satisfied if someone allowed in the home exceeds their authority.Can also occur through constructive breaking when someone enters the home through fraud.
Any building used for human habitation including outbuildings and curtilage. Doesn't matter if no one is home. If the dwellers have permanently departed the structure with no intention of returning.
Deadly Force in Self-Defense
Duty to Retreat
Reasonableness of Response
All must be met to establish self-defense, if not, imperfect privilege
The defendant cannot be responsible for starting the confrontation. Must have "clean hands" unless he retreats or otherwise effectively communicates his non-aggression.
Duty to Retreat
Must retreat if it's reasonably safe but not if at home or work. Majority view is that there is no duty to retreat.
When a defense is not fully established it can be used as an imperfect privilege that mitigates the charges down
Reasonable Perception Doctrine
Threat must be reasonable and honestly believed by defendant. Can consider: physical characteristics of the attacker, special skills of the attacker known by defendant and emotional and mental characteristics of the attacker. BUT NOT OF THE DEFENDANT!!!
Common Law Deadly Force by Police for Fleeing Felons
Deadly force is permissible if there is probable cause that the suspect poses a significant threat of death or serious injury to the police or others and even then the deadly force must be reasonably necessary
Use of Deadly Force in Common Law Defense of Habitat
If defendant reasonably believes that it is necessary to prevent an imminent and unlawful entry, deadly force is permissible
Make My Day Jurisdictions
Deadly force is permissible if the defendant has a reasonable fear that the felon might use any physical force no matter how slight.
MPC Use of Deadly Force for Defense of Habitat
Deadly force is permissible if the defendant has an honest belief that the felon poses threat of death or great bodily harm. Belief does not have to be reasonable.
Deadly Force in Defense of Habitation
Defendant may use force to prevent unlawful entry. Four jurisdictions: Ceballos, MPC, Make My Day, Common Law
Defendant must have an honest and reasonable fear that the felon poses a threat of death or great bodily harm at the time. Doesn't matter if it's a mistake.
a. Ignorance or Mistake of Fact or Law
b. Mental Disease or Defect
Ignorance of Law
Only a defense to specific intent crimes.
No defense unless the defendant relied on the information from a governmental entity whose job is to know the law, the statute itself requires knowledge of some other body of law, the statute requires knowledge of the prohibited act or it was a complex mala prohibita crime
Mistake of Fact
Defense for specific intent crimes only; requires an honest belief no matter how unreasonable.
Defense for Negligence and General Intent crimes; an honest AND reasonable belief
Strict Liability; No defense
MPC; Defense to any crime
Common Law Duress
D contends that, because of human threat, he/she is the victim
Not a defense for murder at common-law - imperfect privilege
1. Imminent injury
2. Did the threatened injury outweigh the illegal act?
3. Did the defendant negligently place himself in the situation?
Elements of Common Law Duress
1. Another threatened to kill or injure the defendant or a 3rd party.
2. Defendant reasonably believed that the threat was genuine.
3. The threat was imminent.
4. No reasonable means of escape
5. Actor was not at fault for exposing himself to the threat.
Defendant engaged in conduct because he was coerced by the use or threatened use of unlawful force against his person which a person of reasonable firmness would be unable to resist. No imminent threat!! Defense for Murder but not Negligence!!
Generally, it's not a defense except for larceny and common law rape, mutual combat, and kidnapping.
The luring, by a police officer, of a person into committing a crime so that he may be prosecuted for it
Defense available if proves by preponderance of evidence that individual acted in response to entrapment and not predisposed criminal mind.
Subjective: whether D was predisposed
Objective: Did police implant in innocent mind? Were they overly jealous.
Society approves defendant's act
Focuses on act-looks at defendant's conduct
Deserves neither criminal liability or censure
If fully established, complete defense
Society does not approve of defendant's act
Withholds criminal sanctions
Examples: duress, insanity, diminished capacity
Can be a defense to any crime. Defendant suffers from a mental disease or defect and the defendant was acting affirmatively as a result of the mental disease or disturbance. There is a causational link between the mental disease or defect (MDD) and the crime.
Defendant is insane if, at the time of the act, he was laboring under such a defect of reason, arising from a disease of the mind that he:
1. Did not know the nature and quality of the act that he was doing
2. If he did know it, he did not know that what he was doing was wrong
The defendant is not criminally responsible if he can establish that the act was the product of the mental disease or disturbance
The defendant knew what he was doing was wrong but was unable to control his conduct; lacked the power to choose between right and wrong
A person is not responsible for criminal conduct if at the time of such conduct as a result of mental disease or disturbance he lacks substantial capacity either to appreciate the wrongfulness of his conduct or to conform his conduct to the requirements of the law
Federal Insanity Defense Reform Act (FIDRA)
Requires a showing that the defendant had a severe mental disease that rendered him unable to appreciate the nature and quality of the wrongfulness of his acts at the time. Affirmative defense that has to be shown with clear and convincing evidence. Experts cannot testify on the ultimate issue.
Guilty but Mentally Ill (GBMI)
Defendant has a substantial disorder or significant impairment but not insane; the prosecutor can prove both the actus reus and mens rea; defendant is guilty but may be able to get treatment as opposed to jail time.
Defendant suffers from a mental disease or defect, not insanity which creates a failure to prove specific intent. Not a complete defense but a mitigating factor.
Crimes by statute - prosecutor only has to prove that the defendant violated the statute and the he knew or should have known about the statute.
Strict Liability Crimes
1. Statutory Rape
3. Selling liquor to minors
4. Administrative crimes (Ex. Truck driver carrying too much weight)
Guideposts for Strict Liability
Mala prohibita/mala in se
Stigma and punishment
Legislative history and intent
Structure of statutory intent
What verb does adverb modify?
Considerations for Strict Liability
1. Is the wrong civil or criminal?
2. If it's civil, does the statute have a mens rea requirement?
3. If it's a true crime, does the statute eliminate a mens rea requirement?
Generally, imposing imprisonment without a mens rea requirement violates due process
Acts in furtherance of the conspiracy; reasonably foreseeable or natural consequences of the conspiracy
Acting with culpability sufficient for commission of offense
Acting with purpose of promoting commission of offense
1. Solicits another
2. Aids another in planning
3. Fails in legal duty to prevent
Mens Rea of Accomplice Liability
Intent to assist the primary party
Specific intent that the crime be committed
Liable for any natural or probable consequences
Accomplice Liability Defenses
1. Alleged accomplice is victim of offense
2. Terminates complicity prior to offense
3. Warns police or tries to prevent offense
a. An awareness of all factors making up the crime
b. A jury can infer general intent from doing of the act
Common Law General Intent Crimes
3. Involuntary Manslaughter
4. Depraved Heart Murder
Common Law Rape Mens Rea
Subjective: Defendant knew she didn't consent
Objective: Defendant should have known she didn't consent.
1st and 3rd require penetration, 2nd and 4th require sexual contact. Aggravating factors can bump them up. Do not require corroboration, gender neutral, no spousal exception.
Doing an act with specific intent to cause the social harm
Must have the general intent to do the act; AND
Must have the specific intent to achieve the consequences of the crime
i) An agreement;
ii) Between 2 or more persons;
iii) To accomplish an unlawful purpose; and
iv) With the intent to accomplish that purpose
Conspiracy defense - No defense to the conspiracy but avoid Pinkerton liability.
MPC - Affirmative defense with complete and voluntary withdrawal. Don't have to stop the crime just renunciate criminal purpose.
Fraud in Fact
Telling the truth, but committing a crime once inside. Actual deceit; concealing something or making a false representation with an evil intent to cause injury to another.
Ex. Doctor supposed to perform pap smear and performs it, but sexually assaults female.
Fraud in the Inducement
Telling a lie. The use of deceit or trick to cause someone to act to his/her disadvantage.
Ex. Signing an agreement or deeding away real property
1. Intoxication (if it negates the mens rea of the crime)
2. Ignorance or Mistake (if it negates the mens rea)
Larceny by Trick
Mere possession of the property of another without legal title by D
Ex. con games, schemes, and swindles
Larceny by False Pretenses
i) Obtaining title to the property;
ii) of another person;
iii) through the reliance of that person;
iv) on a known false representation of a material past or present fact; and
v) representation made with the intent to defraud
Where an act is justified, no crime has been committed, notwithstanding what might otherwise be a criminal result
a) Minimum requirement of some sort of act
b) Where duty imposed, an omission fulfills required act
c) Thoughts, desires, wishes insufficient to constitute crime
If a person has a reasonable belief that he is in imminent danger of unlawful bodily harm, he may use that amount of force reasonably necessary to prevent such harm, unless he is the initial aggressor