294 terms

Criminal Law I Definitions

That which is laid down, ordained, or established...a body of rules of action or conduct prescribed by controlling authority, and having binding legal force." However, not all rules are laws, fewer still are criminal laws, and not all have "binding legal force
An unwritten rule that underlies and inherent in the fabric of society
An unwritten, but generally known, rule that governs serious violations of the social code
Ethical principles, or principles meant to guide human conduct and behavior; principles or standards of right and wrong
Deviant Behavior
Violations of both mores and norms are forms of deviance called "deviant behavior"
Any act or omission in violation of penal law, committed without defense or justification, and made punishable by the state in a judicial proceeding
Types Of Offenses
(1) Criminal acts
(2) Taboo acts, "Deviant" behavior violation, violation of mores
(3) Violation of norms, "Uncivilized" behavior, immoral behavior
The Difference Between the Characteristics Of A Crime and Other Deviance
The presence of a public prohibition and the authority of the government to enforce the prohibition
Criminal Law
The body of rules and regulations that defines and specifies punishments for offenses of a public nature or for wrongs committed against the state or society. Also called penal law
The human conduct that violated the criminal law (only)
Natural Law
The rules of conduct inherent in human nature and on the natural order, which are thought to be knowable through intuition, inspiration, and the exercise of reason without the need to refer to man-made laws (Inherently Known)
Natural Rights Theory
A philosophical outgrowth of natural law . The theory holds that individuals naturally possess certain freedoms that may bit be encroached upon by other individuals or governments
Positive Law
Law that is legitimately created and enforced by governments (made by people)
The Hammurabic Code (ancient laws)
Named after the Babylonian king Hammurabi (1792-175 BC), specified a number of property rights, crimes, and associated punishments. Hammurabi's law spoke to issues of ownership, theft, sexual relationships, and interpersonal violence. Its major contribution was that it routinized the practice of justice in Babylonian society by lending predictability to punishment. It had, however, little impact on the development of Western legal traditions
Twelve Tables (derived the Roman law)
A collection of basic rules related to family, religious, and economic life, appear to have been based on common and fair practices generally accepted among early tribes that existed before the establishment of the Roman republic. The Roman law influenced the U.S. legal traditions in many ways
The Justinian Code's
(Corpus Juris Civilis (CJC) )Lengthy Legal Documents
(1) the institutes, (2) the Digest, and (3) the Code itself. Justinian's code distinguished between two major legal categories: public laws and private laws
Public Laws
Dealt with the organization of the Roman state, its senate, and governmental offices
Private Law
Concerned itself with contracts, personal possessions, the legal status of various types of persons (citizens, free persons, slaves, freedom, guardians, husbands, and wives, ans so on), and injuries to citizens
Pax Romana
A peace imposed by the military might of Rome
Canon Law
The law of the Catholic Church, was influential on the development of the civil law tradition
Common Law
Law originating from use and custom rather than form written statutes. The term refers to nonstatutory customs, traditions, and precedents that help guide judicial decision making
Stare Decisis
The legal principle that requires that courts be bound by their own earlier decisions and by those of higher courts having jurisdiction over them regarding subsequent cases on similar issues of law and fact. The term literally means "standing by decided matters." or " let the decision stand".
Embodies the idea that cases with like fact should have the same law applied. The earlier case is commonly known as precedent
Common Law Tradition
Legal tradition, having unified set of laws that were common to all the English
Why Is Common Law Referred to As Judge-Made Law?
It depended heavily on judicial interpretation
Difference Between Civil Law and Common Law
The common law tradition is evolutionary in nature. Its change came incrementally, as courts adapted the law to different facts or social changes. The civil law tradition, on the other hand, is planned and statutory. Civil law is conceived of by some authority, is established, and then changes abruptly when the legislative authority revises the code
Field Code
Drafted by the jurist David Dudley. A set of proposed standardized criminal and civil procedures and uniform criminal statutes that were adopted by the state of New York and served as a model for other states that sought to codify their laws
Common Law States
A jurisdiction in which the principles and precedents of common law continue to hold sway
Statutes (Public Laws)
Codification of the common law. Also known as the laws of legislature. In addition of the Congress of the United Sates, the legislatures of each state has the authority to define crimes.
Statutes are commonly organized by topics, such as the Code of Criminal Laws. The vast majority of crimes are defined by state crimes, and more than 90 percent of felonies and serious misdemeanors are prosecuted in state courts
Nullum Crimen Sine Lege
Also known as the principle of legality. "There is no crime if there is no statute"
The Criminal Law Legal Tradition vs. The Common Law Legal Tradition
The civil law legal tradition
* Where: France, Italy, Portugal, Spain, Franco-Africa, Latin America, Louisiana (limited)
* Judges play minimal role in development of law
* Periodic, sometimes abrupt, legislative change
* Rational and forward thinking

The common law legal tradition
* Where: England, United States, Australia, New Zealand, Belize, Canada, Anglo-Africa
* Judges play major role in development of law
* More evolutionary change through judicial decisions with occasional legislative change
* More likely to change in response to current conditions
Civil Law
The form of the law that governs relationships between parties
A private or civil wrong or injury; "the unlawful violation of a private legal right other than a mere breach of contract, express or implied. A tort may also be the violation of a public duty if, as result of the violation, some special damage accrues to the individual." A tort may give rise to civil liability, under which the injured party may use the person or entity that caused the injury and ask that the offending party be ordered to pay damages. Civil law is more concerned with assessing the liability than it is with intent
An individual, business, or other legally recognized entity that commits a tort
Civil Suits
Parties to a civil suit are referred to as plaintiff and the defendant, and the names of civil suits take the form Named Plaintiff v. Named Defendant. Unlike criminal cases, in which the state routinely prosecutes wrongdoers, most civil suits are brought by individuals. No civil action is undertaken that is not initiated by the injured party!
Damage Awards in Civil Cases
May be both compensatory - in which the amount to be paid directly compensates the injured party for the amount of damage incurred - and punitive - in which the award serves to punish the defendant for some especially wrongful or treacherous act
Substantive Criminal Law
The part of the law that defines crimes and specifies punishments
Criminal Procedure
Defines the process that may be used by law enforcement, prosecutors, victims, and courts to investigative and adjudicate criminal cases. As an academic field, criminal procedure also includes the study of the Constitution's role in the process
Feature Distinguishing Between One Type of A Crime From Another
The degree of punishment
A serious crime, generally one punishable by death or by incarceration in a state or federal prison facility as opposed to a jail
The highest crime an individual could commit, and the only crime mentioned in the constitution
Less serious offenses, generally thought of as punishable by less than a year's incarceration
A violation of a state statute or local ordinance punishable by a fine or other penalty, but not by incarceration. Also called Summary Offense
"partial" or "unfinished". Applied to crimes like conspiracy to commit a criminal act, solicitation of others to engage in criminal acts, and attempts to commit crimes
Mala In Se
Crimes those that are regarded, by tradition and convention, as wrong in themselves. Such acts are said to be inherently evil and immoral and are sometimes called against conscience. Mala in se crimes, such as murder, rape, and other serious offenses, are almost universally condemned and probably would be so even if strictures against behaviors were not specified in the criminal law
Natural Crime
A crime against a law of nature rather than a against a legal law, was present in the criminal law at its inceptopm
Mala Prohibita
Acts that are considered "wrongs" only because there is a law against them, Without a statute specifically proscribing them, mala prohibita offense might not be regarded as "wrong" by a large number of people. Mala porhibita offenses often include the category "victimless crimes," such as prostitution, drug use, and gambling, in which a clear-cut victim is difficult to identify and whose commission rarely leads to complaints from the parties directly involved in the offense
The Purpose of Law
(1) Regulate the flow of human interaction
(2) Law makes for predictability in human events by using the authority of government to ensure that society agreed-on-standards of behavior will be followed and enforced. They allow people to plan their lives by guaranteeing a relative degree of safety to well-intentioned individuals, while constraining the behavior of those who could unfairly victimize others
(3) Laws provide a stable foundation for individuals wishing to join together in a legitimate undertaking by enforcing rights over the control and ownership of property
(4) Laws also provide for individual freedoms and personal safety by sanctioning the conduct of anyone who violates the legitimate expectations of others. Hence the first and most significant purpose of the law can be simply states: Laws support social order
(5) To many people, a society without laws is unthinkable. Where sucha society exists, however, it would be doubtless rules by individuals and groups powerful enough to unsurp control over others. The personal whims of the powerful would rule, and the less powerful would live in constant fear of attack
Functions of Criminal Law
Protects members if the public from harm
Preserve and maintain social order
Support fundamental social values
Distinguish criminal wrongs from civil wrongs
Express communal condemnation of criminal behavior
Deter people form criminal activity
Stipulate the degree of seriousness of criminal conduct
Establish criteria for the clear determination of guilt or innocence
Punish those who commit crimes
Rehabilitate offenders
Assuage victims of crime
Police Power
The authority of a state to enact and enforce a criminal statute
Common Punishments for Criminal Acts
(1) Monetary Fines: Applied to felonies, misdemeanors, or infractions
(2) Short-Term Incarceration: Applied to felonies or misdemeanors
(3) Long-Term Incarceration: Applied to felonies
(4) Death Penalty: Applied to some felonies
Bill of Rights
The first ten amendments to the U.S. Constitution, which were made part of the Constitution in 1791
How Does Constitutional Provisions Determine The Nature Of Criminal Law?
By setting limits on just what can be criminalized, or made legal. Constitutional requirements hold that criminal laws can only be enacted where there is a compelling public need to regulate conduct. The U.S. Supreme Court has held that "to justify the exercise of police power the public interest must require the interference, and the measures adopted must be reasonably necessary for the accomplishment if the purpose
The Constitution also demands that anyone accused of criminal activity be accorded due process. Similarly, the Constitution helps ensure that the accused are provided with the opportunity to offer a well-crafted defense
To make criminal; to declare an act or omission to be criminal or in violation of a law making it so
Implied protection
Local Laws
In addition to state and federal crimes, municipalities are often empowered by state law to define and punish crimes, usually misdemeanors and infractions. Local laws are commonly known as ordinances
Administrative Regulations
Another source of law. Legitimately promulgated regulations have the full authority of legislation. Administrative regulations can be penal and can result in incarceration, fines, and other punishments
Case Law
The body of previous decisions, or precedents, that has accumulated over time and to which attorneys refer when arguing cases and that judges use in deciding the merits of new cases
Statutory Law
Law in the form of statutes or formal written codes made by a legislature or governing body with the power to make law
Importance of Stare Decisis
The U.S. Supreme Court has ruled, "Stare decisis is of fundamental importance to the rule of law. Case law and statutory law make for predictability in the law
In the words of the Court: "Acknowledgments of precedent serve the principal purposes of stare decisis, which are to protect reliance interests and to foster stability in the law"
To argue or to find that a rule established by an earlier appellate court decision does not apply to a case currently under consideration even though an apparent similarity exists between the cases
Hierarchy in American Law
The Constitution of the U.S. is the highest form of law. All other law, including state constitutions, must be consistent with it. After the U.S. Constitution, the U.S. code is the highest form of federal law, with administrative regulations following. At the state level, state constitutions fall below the federal constitution, with state codes and then administrative regulation following, in that order. The common law, except interpretations of state and federal constitutions, is a lower form of law than statutes. As such, statutes prevail when in conflict with the common law
Why is Stare Decisis Preferred?
It promotes the overhanded, predictable, and consistent development of legal principles, fosters reliance on judicial decisions, and contributes to the actual and perceived integrity of the judicial process
Stare decisis is not an inexorable command; rather, it "is a principle of policy and not a mechanical formula of adherence to the latest decision."
Federal System of Government
One which two governments have jurisdiction over the inhabitants
The Branches of The Government
Common Elements Can Be Identified In The Context of Criminal Cases (Similarities between judicial systems)
(1) All systems have trial courts where criminal cases are filed, warrants are issued, juries are found, witness and evidence are received, verdicts are rendered, and sentences are passed. In the federal system, there are 94 trial courts, known as U.S. district courts. There is at least one district court in each state
(2) All systems have at least one appellate court. These courts do not impanel juries or hear evidence. Instead, they review the decisions of trial judges for legal error. They do this through written and sometimes oral arguments. In the federal system, the 11 U.S. courts of appeal are the first, and often last, rung of appeal. They are often final because not all cases continue to the highest level of appeal, the U.S. Supreme Court
Inquisitorial System v. Adversarial System
Inquisitorial System
* One continues investigation/trial overseen by judge
*Judges play active role throughout process
* Truth is sought through investigation
* Process is less formal than in an adversarial system

Adversarial System
* Investigation overseen by police and separate judicial phase initiated by prosecutor with minimal judicial involvement in early stages
* Judges are more passive, and attorneys play more active role
* Truth is sought through competition between prosecution and defense
* Process is highly formal and technical, especially once charges are filed
Adversarial System: Two parties against each other in search of truth, promotes argument/debate, the united states of america
inquisitorial system: judge takes the prominent role, Not Attorneys, focus on fact finding, juries are the exception
Adversarial System
The court system that pits the prosecution against the defense in the belief that truth can best be realized through effective debate over the merits of the opposing sides
Burden of Proof
The mandate, operative in American criminal courts, that an accused person is presumed innocent until proven guilty and that the prosecution must prove the defendant's guilt beyond a reasonable doubt
Reasonable Doubt
In legal proceedings, an actual and substantial doubt arising from the evidence, form the facts or circumstances show by the evidence, or form the lack of evidence. Also, that state of the case, which after the entire comparison and consideration of all the evidence, leaves the minds of the jurors in such a condition that they cannot say they feel an abiding conviction of the truth of the charge
Reasonable Doubt Standard
The standard of proof necessary for conviction in criminal trials
Standards of Proof Compared
Beyond a Reasonable Doubt: High or moral certainty, but not 100% confidence. Used for convictions in criminal cases
Clear and convincing evidence: Greater that preponderance of evidence but less than beyond a reasonable doubt. Used to decide specific issues in criminal and quasi-criminal cases
The level of factual proof used in civil cases involving issues of personal liberty. The standard requires greater certainty than "more probable than not" but is not as demanding as "no reasonable doubt"
Preponderance of Evidence: Greater than 50% probability. Used for verdicts in civil cases. A standard for determining legal liability, which requires a probability of just over 50 percent that the defendant did what is claimed
The Difference Between The Crime-Control Pole of The Continuum and The Due Process Model
The crime-control pole of the continuum is characterized by its emphasis on preventing, detecting, and prosecuting criminals. Efficiency is a value of the system. The due process pole emphasizes the preservation of individual liberties over the rights of the community to be free of crime or to have an efficient system. The crime-control model is satisfied when crimes are prevented or a crime is detected and the factual guilt of an offender is found in an efficient manner. The due process model, on the other hand, emphasizes legal guilt. Legal guilt incorporates factual guilt, but it also includes a fair process. A defendant is legally guilty only if her or she is factually guilty and the government respected the defendant's rights while investigating and prosecuting the case
Rule of Law
The maximum that an orderly society must be governed by established principles and known codes that are applied uniformly and fairly to all of its members, also called supremacy of law. has to have established principles and Applied fairly!
What Does The Rule of Law Include According to The American Bar Assoicaiton (ABA)?
Freedom form private lawlessness provided by the legal system of a politically organized society
A relatively high degree of objectivity in the formulation of legal norms and a like degree of even handedness in their application
Legal ideas and justice devices for the attainment of individual and group objectives within the bounds of ordered liberty
Substantive and procedural limitations on governmental power in the interest of the individual for the enforcement of which there are appropriate legal institutions and machinery
Due Process of Law
The procedure that effectively guarantee individual rights in the face of criminal prosecution; the due course of legal proceedings according to the rules and forms that have been established for the protection of private rights; formal adherence to fundamental rules for fair and orderly legal proceedings. Due process of law is a constitutional guarantee
Jury Instructions
Directions given by a judge to a jury concerning the law of the case
Elements of Crime
(1) The basic components of crime
(2) In a specific crime, the essential features of that crime, as specifies by law or statute
Criminal Liability
The degree of blameworthiness assigned to a defendant by criminal court and the concomitant extent to which the defendant is subject to penalties prescribed by the criminal law
Essential Aspects of All Crimes
(1) the criminal act (which, in legal parlance, is termed the actus reus)
(2) a culpable mental state (mens rea)
(3) a concurrence of the two
The Essence of Criminal Conduct
Consists of concurrence of a criminal act with a culpable mental state. The critical issue of concurrence is what distinguishes murder from homicide committed in self-defense, for example, or rape from consensual sex
Refined Elements That Comprise The Conceptual Essence of Criminality
(1) causation
(2) a resulting harm
(3) the principle of legality
(4) necessary attendant circumstances
In the criminal law, behavior and its accompanying mental state
actus reus
A necessary first feature of most crimes. An act in violation of the law; a guilty act
A performance, a deed, or movement, as distinguished from remaining at rest
Knowing Possession
Possession with awareness of what one possesses
Example: If you buy crystal meth. Knowing does not mean you have to know it is a crime to possess crystal meth, only that you know it is crystal myth
Mere Possession
Possession in which one may or may not be aware of what he or she possesses
Example: If you agree to carry your friend's briefcase you do not know is filled with stolen money, you have got mere possession of the money
Actual Possession
Possession in which one has direct physical control over the object or objects in question
Example: a person wearing a watch has actual possession of the watch. Likewise, if you have your wallet in your jacket pocket, you have actual possession of your wallet. This type of possession, however, is by necessity very limited.
Constructive Possession
The ability to exercise control over property or objects, even though they are not in one's physical custody
For example, if one's car is sitting in one's driveway, one has physical possession of the car. However, any person with the key has constructive possession, as they may take physical possession at any time without further consent from one.
Omission to Act
An intentional or unintentional failure to act, which may impose criminal liability if a duty to act under the circumstances is specified by law
i.e., relationship, statute, contract, assumption of care, creation of peril, duty to control conduct, landowner duty
ome examples: failing to file a required tax return, failing to register locally as a convicted felon, failure of a parent to obtain medical help for a child, failure to stop after a vehicle collision, failure to rescue someone fallen overboard from your ship.

Other examples are a bit harder to spot: failure to stop someone who is beating your child, failing to rescue a comrade injured in a remote wilderness (murder?). Failure to maintain fire safety in a nightclub has resulted in indictments for criminal manslaughter when deaths occur from a fire. There may be a difference in punishment between negligent omissions and reckless or intentional omissions.

The legal duty to act may arise from the relationship with the victim (parents), or relationship with the criminal (parents, employees), or by statute/ordinance (specific definitions of required acts), contract (e.g., crossing guard), land ownership (pollution, security for visitors), intentional creation of danger (punched someone in the street and left him to be run over), or by voluntary assumption of the duty (guardians).
Reasonable Failures
Acts that might be noncriminal, even when serious harm results. Example: The captain of a passenger airplane may decide to avoid an emergency landing to save the life of a heart attack victim if doing so might endanger the other passengers
Extortion and Blackmail
Threat made for the purpose of illegally acquiring money or other things of value
Mens Rea
The specific mental state of the defendant at the time of the crime; a guilty mind. Two forms of mens rea are general and specific intent
General Intent
The form of intent that can be assumed from the defendant's behavior. General intent refers to an actor's physical conduct
Such as involuntary manslaughter or negligent homicide. Also, Battery is a general intent offense. If a defendant commits a battery that results in harm to the victim, it does not matter if the defendant did not intend the harm.
Suppose a defendant struck a victim in the leg with an axe. The defendant intended to frighten the victim into complying with his request to not trespass on his property. Later, the victim died from a resulting infection. At common law, the defendant committed a general-intent crime
Specific Intent
A thoughtful, conscious intention to perform a specific act in order to achieve a particular result
Transferred Intent
A legal construction by which an unintended act that results from intentional action undertaken in the commission of a crime may also be illegal
Examples: With malice aforethought Nate Nogood intends to shoot his girlfriend and misses her, and the bullet hits a passerby, killing him. Nogood may be charged with first degree murder since the intent to commit murder is transferred to the actual crime.
Steve Swinger takes a punch at Harvey Hasgood, his hated enemy, misses Hasgood and hits Hasgood's date, Teri Truehart in the nose, breaking it. Truehart can not only sue Swinger for damages due to the assault, but can claim punitive damages because the malice against Hasgood attaches to the hit upon Truehart.
Purposeful Mens Rea
Equivalent of specific intent at the common law; a desire to cause the outcome that resulted (requires more than an awareness than"knowing" that the result is likely; it requires the actor to want it to happen
Example: She needed to be taught a lesson for roaming carelessly in the street. If it cost her her life, then so be it
A conclusion drawn from other facts. Juries often infer intent from a defendant's behavior
A person's reason for committing a crime. NOT the same as mens rea!
Strict Liability Crime "absolute liability offenses"
A violation of law for which one may incur criminal liability without fault or intention. Strict liability offenses do NOT require mens rea.
Strict Liability
Liability without fault or intention. Routine traffic offenses are generally considered strict liability offenses that do not require intent and may even be committed by drivers who are not consciously aware of what they are doing. Statutory rape provides another example of the concept of strict liability, with one person under the age of legal content. Another example of strict liability is selling alcohol to minors
Sometimes used to signify a defendant's knowledge or "guilty knowledge"
Canon of Construction
A rule that guides courts in interpreting constitutions, statutes, and other law
Legislative History
The record of debates, committee reports and meetings, legislators' statements. and other evidence of what the legislature intended when it enacted a particular statute
Canon of Presumptive Constitutionally
Holds that if two interpretations of a statute are possible, one constitutional and another not, the statute is to be interpreted as constitutional
How Can a Court Deduce A Statute's Meaning?
By looking at the common law, if it influenced the statute, by examining relevant case law, by looking at similar statutes, by looking to the law of other jurisdictions, and by checking the legislative history
Insanity As a mens rea Defense
refers to the defendant's state of mind at the time the act occurred. Insanity at the time of trial is a different matter
The simultaneous coexistence if (1) an act in violation of the law and (2) a culpable mental state
Corpus Delicti
Facts that show that a crime has occured. Literary, the "body of crime"
Corpus Delicti Components
(1) That a certain result has been produced
(2) Someone's criminal act as the cause of the injury
Corpus Delicit Rule
(1) The body or essence of a criminal offense that proves that the alleged crime has been committed, but not who committed the crime
(2) In practice, a principle of law that says that an out-of court confession, unsupported by other facts, is insufficient to support a criminal conviction
Reasons/Importance of Corpus Delciti
(1) reduce the risk of convicting a defendant based on his confession for a crime that did not occur
(2) A crime will generally be prosecuted in the location where it was commited - that is, where the corpus delicti of the crime exists
Additional Principles that are Necessary to Fully Appreciate Contemporary Understandings of Crime
(1) Causation
(2) A resulting harm
(3) The principle of legality
(4) Necessary attendant circumstances
All these act as limitations on the authority of government to prosecute
Causation in Fact
An actual link between an actor's conduct and a result. Even so cause in fact cannot be said to be the sole cause, or even the primary cause, of a particular event. If a person fires a gun, for example, and the bullet strikes the building, causing it to ricochet and hit a person standing next to the shooter, it can be said that the person who fired the weapon shot the bystander or, at the very least, caused him to be shot
Proximate Cause
The primary or moving cause that plays a substantial part in bringing about injury or damage. It may be a first cause that sets in motion a string of events whose ultimate outcome is reasonably foreseeable
If, for example, a women poisons her husband's dinner, intending to kill him, bu the stays lat eat the office and she put the meal in the refrigerator, she may still be held liable for the crime of homicide if a boarder staying in the house gets up in the middle of the night, eats the meal, and dies

NOT proximate cause: One person assaults another and chases him out of a building and through a driving rainstorm, the assault can not be said to be the proximate cause of the victim's death if he is struck by lightning (the primary cause of death) and killed during the pursuit, even though one might argue that but for the initial assault, he would not have been exposed to the elements and would therefore have lived. This so because the lightning strike was not related to the assault, that is, it was not brought on by it in the same sense that an infection might be produced by a gunshot wound
Causation in Fact vs. Proximate cause
The people who live at house A negligently start a fire that causes their house to burn down. The fire also causes house B nextdoor to burn down. The fire travels all the way to house Z (burning all the houses in between, as well). Is house A liable for ALL the houses that have burned? Many states will only find house A liable for the damage/injury of house B ... most will not allow Z to make a claim against A, because the damage is too remote. It was probably not foreseeable that the fire would travel so far (and there are other factors like the wind and temperature, etc.) the caused the fire to travel so far. Exactly WHERE the line is drawn varies from state to state and court to court.

I stab you in the leg. You go to the hospital for treatment, where you slip on a puddle, hit your head on the floor, and die due to brain damage caused in the fall. Though this passes the "cause in fact" but-for test, but for my stabbing you never would have slipped in the hospital, it doesn't pass the proximate cause test. You slipping and falling in the hospital wasn't at all forseeable and I can't be held responsible for it.

For example, if Driver A runs a red light and hits Driver B, injuring him, Driver A's act of running the red light is the likely actual cause of Driver B's injuries. In other words, Driver B would not have been injured but for Driver A's running the red light. However, actual causation can sometimes be quite broad, drawing otherwise unrelated events into the chain of causation. Because of this, proximate cause - the second type of causation - functions as a limitation.

A woman is pushing a baby carriage down the street when she witnesses Driver A's car accident with Driver B (described above). She is so distracted by the accident that she lets go of the carriage momentarily and it runs away from her, striking a pedestrian and causing him to fall, hurting his back. Using only an actual cause analysis, it is likely that Driver A is indeed responsible for the pedestrian's back injury. This is because but for Driver A's running the red light, there would not have been an accident in the first place. With no accident to distract the woman, she would not have let go of the carriage and so the pedestrian would never have been struck and never would have fallen. Yet there may not be proximate cause because a pedestrian getting hit by a baby carriage is probably not a foreseeable result of running a red light. Since there is not likely proximate causation, a court is not likely to find Driver A liable for the pedestrian's back injuries.
sine quanon
"but for" rule
"had not"
Holds in affect that "without this, that would not be," or "but for the conduct of the accused, the harm in question would not have occurred"
Legal Cause (proximate cause)
A legally recognizable cause; the type of cause that is required to be demonstrated in court in order to hold an individual criminally liable for causing harm
How Can Legal Causes be Distinguished From The Causes That May Have Produce The Result In Question But That May Not Provide The Basis For a Criminal Prosecution?
Too Complex
Too Indistinguishable From Other Causes
Not Knowable
Not Provable in a Court of Law
Social-Orders (victimless crimes)
A type of criminal law violation in which parties to the crime willfully (even joyfully) participate and in which the element of harm seems remote. Example: drug use, illegal forms of gambling, prostitution, pornography
Areas afflicted with chronic prostitution, drug use, sexual deviance, and illegal gambling usually also experience property values falling, family life disintegrating, and other more traditional crimes increasing as money is sough to support the "victimless" activities
What Does the Essence of Criminality Consist of?
An actus reus
A mens rea
The concurrence of an illegal act and a culpable mental state
Principle of Legality
An axiom that holds that behavior cannot be criminal if now law exists that defines it as such.Today, the principle of legality is commonly analyze as a due process principle
The Roles of Punishment of in the Principle of Legality
(1) nullen crimen, nulla poena, sine lege, which means "there is no crime, there is no punishment, without law"
(2) nullum crimen sine poena, which means "no crime without punishment
Ex Pasto Facto
Formulated enacted, or operating retrospectively. Literally, "after the fact." As prohibited by the Constitution, no punitive law may be applied to acts committed before the law was enacted and effective or means "after the deed"
An ex post facto law is one that (1) makes an action done before the passing of the law (and which was legal when done) criminal and punishes such action; (2) aggravates a crime, or make it more serious than it was when committed; (3) inflicts a greater punishment than existent law sis at the time the crime was committed; or (4) alters the legal rules of evidence and requires less, or different, testimony than the law required at the time of the offense in order to convict the offender
(NO Retro Active LAW MAKING)
Before an Act as Criminal
1. Principles of legality (due process): Government must clearly define the act as criminal and set forth its punishment
2. Constitutional limitations: Some actions/inactions may not be criminalized
The Act
1. Government may not coerce or excessively encourage the act (entrapment)
2. Government's ability to prevent and monitor conduct is limited by the Constitution and by statutes
After the Act: Conviction
1. Burden: Government must prove every element beyond a reasonable doubt
2. Corpus delicti must be proven
3. Guilt must be determined by courts. Bills of attainder by legislatures are prohibited
After the Act: Punishment
1. Ex post facto: No law may increase criminal liability of punishment after the act
2. Double jeopardy: Individuals may not be tried twice or have punishments increased after first jurisdiction
3. Other constitutional limitations exist, such as the Eighth Amendment's prohibition of cruel and unusual punishment
Bill of Attainder
A legislative pronouncement that an individual is guilty of a crime. Bills of attainder are prohibited to the federal and state governments by the U.S. constitution. In addition to violating that, the separation of powers doctrine is violated, which reserves the adjudication of criminal cases to the judiciary
Double Jeopardy
A second prosecution or a second punishment for the same offense. Double jeopardy is prohibited by the Fifth Amendment of the U.S. Constitution
(1) re-prosecuted after acquittal
(2) Re-prosecuted after conviction
(3) Separate punishment for the same offense
When Does Jeopardy Attach?
When the first witness is sworn in jury trials
A guilty plea has been accepted by the trial court
The first witness is sworn in bench trials
Void-For-Vagueness Principle
A constitutional principle that refers to a statute defining a crime that is so unclear that a reasonable person of at least average intelligence could not determine what the law purports to command or prohibit
Vague Laws:
(1) Unclear as to restrictions
(2) Discriminatory Enforcement
(3) Arbitrarily applied
Attendant Circumstances
The facts surrounding an event
such as time of occurrence, location of occurrence, victim's mental capacity, victim's age, victim's exposure to narcotics or other drugs, victim's ability to escape, victim's capacity to resist
Example: Use of weapon + bodily injury = higher level crime
The level of seriousness of an offense
Inchoate Crime
An unfinished crime that generally leads to another crime. Also, a crime that consists of actions that are steps toward another offense. Also called anticipatory offense
What Does Inchoate Crimes Include
(1) Attempts
(2) Solicitation
(3) Conspiracies
Six Steps for a Person to Intentionally Commit a Crime (Dessler)
(1) The individual conceives the ides of the crime
(2) He or she then evaluates the idea
(3) The person forms the intention to go forward
(4) He or she prepares to commit the crime
(5) The individual commences the acts necessary to complete the crime
(6) Finishes the actions defined by law as necessary to complete the crime
The person is not punished during the first three stages of the process. In the first two stages, the individual lacks a mens rea (intent). In addition, since people are not punished for thoughts alone, there is no crime until there is an actus reus. It is the activity in the middle range (the fourth and fifth stages), which comes after the formation of the mens rea but before the attainment of the criminal goal, that is legally considered inchoate, or incomplete, conduct
Substantial Step Toward the Commission of that Offense
(1) Significant activity undertaken in furtherance of some goal
(2) An act or omission that is a significant part of a series of acts or omission, constituting a course of conduct planned to culminate in the commission of a crime
(3) An important or essential step toward the commission of a crime that is considered sufficient to constitute the crime of criminal attempt. A substantial step is conduct that is strongly corroborative of the actor's criminal purpose. According to one court, a substantial step is "behavior of such a nature that a reasonable observer, viewing it in context, could conclude beyond a reasonable doubt that it was undertaken in accordance with a design to violate the statute"
Elements of Crime of Attempt
(1) Specific intent to commit a criminal offense
(2) A substantial step undertaken toward the commission of the intended offense
Elements of a crime:
(a) Intent to commit crime (attempt)
(b) failure to complete (attempt)
(c) apparent possibility of commission (attempt)
(d) Overact toward commission (actus reus)
Example: if a husband laces his wife's cocktail with cyanide, it is no defense that by chance the intended victim decided not to drink the deadly potion. One defendant claimed he could not attempt rape in an old Model A coupe because it was too cramped to make the act possible. The court threw out this defense. Sometimes a criminal defendant is accused of both the crime (e.g. robbery) and the attempt in case the jury felt he tried but did not succeed.
Mere Preparation
An act or omission that may be part of a series of acts or omissions constituting a course of conduct planned to culminate in the commission of a crime but that fails to meet the requirements for a substantial step (attempt). Also, preparatory actions or steps taken toward the completion of a crime that are remote from the actual commission of the crime
Indispensable Element Test
The accused becomes guilty when he or she obtains an indispensable element of the crime - i.e. murder weapon (murder weapon purchased)
Defendant is culpable once he or she has committed an indispensable act
Model Penal Code Approach
The MPC uses a substantial-step test with a broad scope to distinguish an attempt. Searching for following a potential victim falls under this umbrella (attempt to locate victim made)
Probable Desistance Test
An attempt has been made when the accused is unlikely to stop voluntarily. Here the accused has obtained the victim and little stands in the way of the crime's completion (victim lured into vehicle)

Defendant is culpable if completion of the crime is within grasp, although the defendant's act need not be the penultimate act
Dangerous Proximity Test
The nearness of completion, the degree of intended harm, and the victim's apprehension are all factors of this test. With an objective of murder and only two steps remaining, an attempt is made
A test for assessing attempts, under which a person is guilty of an attempt when his or her conduct comes dangerously close to success

Defendant must act in dangerous proximity to the crime to be culpable. Acts remotely connected to the crime are not adequate
Unequivocal Test
At the point when conduct can no longer be either criminal or noncriminal, an attempt is made. Since holding a victim against his or her well is a crime, the act is unequivocal (victim rendered physically incapacitated)

Defendant is culpable if he or she has unequivocally manifested an intent to commit the crime
Physical Proximity Test
Once the accused has power to complete the crime almost instantly, the attempt is made. Here the victim has no chance of escape and is completely under the control of the accused
A test traditionally used under common law to determine whether a person was guilty of attempted criminal activity. The physical proximity test requires that the accused has it within his or her power to complete the crime almost immediately
Defendant is culpable if completion of the crime is within grasp, although the defendant's act need not be the penultimate act
Last Act Test
The accused has taken the final step and has done all that was intended, but the crime has not been completes. This is before the "victim dies" step"
In the crime of attempt, a test that asks whether the accused had taken the last step or act toward commission of the offense, had performed all that he or she intended and was able to do in an attempt to commit the crime, but for some reason did not complete the crime
Formulations to Distinguish between Preparation ans Substantial Step
1) The last act test, which asks the acts whether the conduct completed is dangerously close to completing the crime itself
2) The notion that the more serious the threatened harm, the more justified the court would be in examining acts further back in the series of acts that would lead to crime completion
3) The idea that the clearer the intent to commit the offense is, the less proximate the acts need to be to the completion of the crime to constitute the crime of attempt
Abandonment Defense to Attempt
The voluntary and complete abandonment of the intent and purpose to commit a criminal offense. Abandonment is a defense to a charge of attempted criminal activity. Also calles renunciation
Number of Arguments in Favor of Allowing Abandonment or Renunciation as a Defense
(1) It encourages desistance
(2) It indicates a lack of dangerousness on the part of the offender
(3) It shows a lack of intent on the part of the defendant to carry the crime to completion
Number of Arguments that Argue Allowing Abandonment or Renunciation as a Defense
(1) It has little deterrent effect
(2) It fails to show whether the defendant will prove dangerous in the future
(3) The accused has already completed the crime of attempt
Impossibility Defense to Attempt
A defense to a charge of attempted criminal activity that claims the defendant could not have factually or legally committed the envisioned offense even if he or she had been able to carry through the attempt to do so. It is, for example, factually impossible to kill someone who is already dead
Factual Impossibility
Claims that the defendant could not have committed the envisioned offense even if her or she had been able to carry through the attempt to do so. i.e., alibi, killing a dead person
Legal Impossibility
Precludes prosecution in most jurisdiction. The defense of legal impossibility claims that the attempted offense is really no offense at all, either because there is no law against the imagined crime or because the actions in questions do not meet the requirements of the law for a crime to have occurred
Example: Receiving sugar when you wanted and knew that it was going to be cocaine
Criminal Conspiracy
An argument between two or more people to commit or to effect the commission of an unlawful act or to use unlawful means to accomplish an act that is not unlawful
(An "Agreement" to Commit a Crime)
Conspiracy ends as soon as people were caught!!!! The person doing the ACT gets charged with conspiracy and (i.e., murder), the person who started it would be charge with solicitation, and, i.e, accomplice
Elements of The Crime of Conspiracy
1) An agreement between two or more people
2) The intention to carry out an act that is unlawful or one that is lawful but is to be accomplished by unlawful means
3) A culpable intent on the part of the defendants
Plurality Requirement
The logical and legal requirement that a conspiracy involve two or more parties
Wharton's Rule
A rule of applicable to conspiracy cases that holds that, when the targeted crime by its very nature takes more than one person to commit, there can be no conspiracy when no more than the number of people required to commit the offense participate in it
Elaborate Conspiracy
The parties to the conspiracy may not all be aware of one another's identity or even involvement, sometimes described as wheel or chain conspiracies
Wheel Conspiracy
Conspirators deal only with a ringleader who serves as a central hub, and not with one another
Chain Conspiracy
Conspirators follow in a sequence and deal only with the individual who comes before them
When does a Series of Conspiracies Exist?
(1) Each "spoke" knows that the other "spokes" exist, although they need not know their precise identity
(2) The various "spokes" have a community of shared interests
Why is it Important to Establish When an Individual Conspirator Withdrew?
(1) Prosecution Under a Statute of Limitations
(2) Defense challenges to declarations made by another conspirators after withdrawal
(3) Defense claims of nonliability for crimes committed by other after the date of a defendant's withdrawal
Criminal Solicitation
The encouraging, requesting, or commanding of another person to commit a crime
Words commanding or urging the commission of a crime plus specific intent equals solicitation
For example, if Alice commands Bob to assault Charlie, and Alice intends for Bob to assault Charlie, then Alice is guilty of solicitation. However, if Alice commands Bob to assault Charlie without intending that an actual crime be committed (perhaps believing that Charlie has given consent), then there is no solicitation.
(An "offer" to Commit a Crime)
The first person gets charged with i.e., murder and solicitation and the person doing the ACT gets charged with JUST murder
While solicitation is, in effect, an attempted conspiracy, it is possible to have a conspiracy without a prior solicitation. NO overact required for solicitation
Parties to Crime
All those who take part in the commission of a crime, including those who aid and abet and are therefore criminally liable for the offense
Principal in the First Degree
A person whose acts directly resulted in the criminal misconduct in question
Principal in the Second Degree
A person who was present at the crime scene and who aided, abetted, counseled, or encouraged the principal
Accessory Before the Fact
A person who aids and abets in preparation for crime commission, but who was not present at the crime scene
Accessory After the Fact
A person who did not participate in a crime but who furnished postcrime assistance to keep the offender from being detected or form being arrested
One who knowingly gives assistance to a person who has committed a felony for a purpose of helping that individual avoid apprehension or detection. An accessory is liable for separate, lesser offenses following a crime
(1) Crime Committed by someone else
(2) Personally aided the offender after the crime
(3) Knew crime was committed
(4) Acted for the purpose of Hindering prosecution
A person who, with intent to promote or facilitate the commission of crime, gives assistance or encouragement to the principal. An accomplice is liable as a principal before and during a crime
(1) Intent to Aid
(2) Intent to commit underlying offense
(3) Assistance by: Physical Conduct, psychological influence, and omission
Involvement in crime either as a principal or as an accomplice. The term also refers to activities of conspirators and may therefore be taken to mean conduct that is intended to encourage or aid another person to commit a crime, to escape, or to avoid prosecution
Accomplice Liability
The degree of criminal blameworthiness of one who aids, abets, encourages, or assists another person in the commission of a crime
To be Liable as an Accomplice
(1) Knows what the criminal is trying to do
(2) Intentionally aid or encourage another person to commit a crime
(3) Believe that the aid or encouragement would make the criminal's success likely
How to Consider the Defendant's (Accomplice's) Actions to be Intentional
(1) Commit the acts that in fact gave aid or encouragement
(2) Bring about the other party's commission of the offense by committing these acts
What Does Proving an Accessory's Guilt Require?
(1) A crime has been completed
(2) The defendant knew that the crime had been committed
(3) The defendant knew that the crime was committed by the individual who was being assisted
(4) The assistance was personally given by the individual who committed the crime
Misprision of Felony
The failure to report a known crime; the concealment of a crime
Criminal Fault is Imputed to Corporation Based on Two Legal Theories, What are They?
(1) The principle of vicarious liability
(2) The identification doctrine
The Principle of Vicarious Liability
Has mostly been used to hold a corporate body accountable for violations of regulatory offenses
Identification Model
A corporation can be held responsible for more serious criminal offenses, including those that require a mental element, or mens rea, for their commission. The identification doctrine builds on the principle that a corporation is an abstract entity that has no mind of its own but is actively directed by its officers and senior officials , whose initiatives can be identified with those of the company. Identification liability stops at wrongdoing in the boardroom, while vicarious liability extends corporate responsibility to the acts of all employees
Condition That are Met for a Company to Be Held Criminally Liable
1. The offense is a minor offense, and the conduct was performed by an agent acting on the corporation's behalf within the scope of the agent's employment.
2. The offense is defined by another statute and is made applicable to corporations.
3. The offense consists of a failure to perform a specific duty imposed on the corporation by
law, such as failing to file a tax return.
4. The criminal acts were approved, authorized, permitted, or recklessly tolerated by the
board of directors or a high management official acting on behalf of the corporation and
within the scope of his or her employment.
The Collective Knowledge Doctrine
Imputes to a corporation the knowledge of all employees, thereby imposing liability on companies even when no single employee has sufficient knowledge to be liable
Willful Blindness Doctrine
Criminal liability can accrue where a corporation deliberately disregards criminal misconduct
Vicarious Liability
The criminal liability of one party for the criminal acts of another party
Strict Liability vs. Vicarious Liability
While strict liability and vicarious liability are both forms of liability without fault, they
dispense with the fault requirement in entirely different ways. Strict liability is imposed in
situations in which the mens rea requirement has been eliminated. Vicarious liability, on the
other hand, may be imposed in situations in which the act requirement has been eliminated
Evidence and arguments offered by
a defendant and his or her
attorney(s) to show why that
person should not be held liable
for a criminal charge.
Legal defense categories: Alibi, justification, excuse, procedural
Factual Defense
The defendant simply asserts that he or she didn't do it
• Alibi: when a defendant claims to not have been present at the location of the crime
• Proof Beyond
Reasonable Doubt
Doesn't Exist
• Greater Crime
Unproven, Although
Lesser Is Proven
• Other
Outcomes Include
• Acquittal
• Lesser Punishment
Legal Defense
Factual guilt is immaterial for assertion
• Justifications
• Excuses
• Constitutional or
Other Law Violated
by Government
Outcomes Include
• Acquittal
• Reduction in
• Exclusion of
• Other
Legal Defense: Justification
A type of legal defense in which
the defendant admits to
committing the act in question but
claims it was necessary in order to
avoid some greater evil
Excuses (an affirmative defense)
A type of legal defense in which
the defendant claims that some
personal condition or
circumstance at the time of the act
was such that he or she should not
be held accountable under the
criminal law.
affirmative defense
An answer to a criminal charge in
which a defendant takes the
offensive and responds to the
allegations with his or her own
assertions based on legal
principles. Affirmative defenses
must be raised and supported by
the defendant independently of any
claims made by the prosecutor.
Affirmative defenses include
justifications and excuses
Since most criminal cases are complex, it is difficult to be certain whether a specific defense
will be accepted by a judge or jury in a given instance. Moreover, those charged with
crimes may be particularly inventive in their efforts to "bend" traditional defenses in order
to apply them to their cases. Other defendants may offer creative excuses that have not
previously been heard in American courts. Still others may attempt to apply traditionally
accepted defenses under novel circumstances. All this makes it difficult to generalize about
the applicability of any particular defense to a given set of circumstances
If defendants meet the burden of production, they also meet burden of persuasion, meaning they have to prove defenses by a preponderance of the evidence, defined more than 50%
JUSTIFICATIONS AS A DEFENSE (an affirmative defense)
(1) necessity,
(2) self-defense, (3) defense of others, (4) defense of home and property, (5) resisting
unlawful arrest, and (6) consent
A defense to a criminal charge that
claims that it was necessary to
commit some unlawful act in order
to prevent or avoid a greater harm
Identify evil, rank evils, and then choose the lesser evil
A defense to a criminal charge that
is based on the recognition that a
person has an inherent right to
self-protection and that to
reasonably defend oneself from
unlawful attack is a natural
response to threatening situations
Unprovoked, imminent (apparent) danger, necessity, and reasonable force
reasonableness requirement
Whether the defendant subjectively believed that the use of force was necessary
Reasonable Person
A person who acts with common
sense and who has the mental
capacity of an average, normal,
sensible human being.The
reasonable person criterion
requires that the assumptions and
ideas on which a defendant acted
must have been reasonable in that
the circumstances as they
appeared to the defendant would
have created the same beliefs in
the mind of an ordinary person.
Apparent Danger
A form of imminent danger that is
said to exist when the conduct or
activity of an attacker makes the
threat of danger obvious
reasonable force
A degree of force that is appropriate
in a given situation and is not
excessive; the minimum degree of
force necessary to protect oneself,
one's property, a third party, or the
property of another in the face of a
substantial threat
Deadly Force
A force likely to cause death or
great bodily harm.
Retreat Rule
A rule in many jurisdictions that
requires that a person being
attacked retreat in order to avoid
the necessity of using force against
the attacker if retreat can be
accomplished with "complete safety"
Perfect Self-Defense
A claim of self-defense that meets
all of the generally accepted legal
conditions for such a claim to be
valid.Where deadly force is used,
perfect self-defense requires that
in light of the circumstances, the
defendant reasonably believed it to
be necessary to kill the decedent
to avert imminent death or great
bodily harm and that the defendant
was neither the initial aggressor
nor responsible for provoking the
fatal confrontation
alter ego rule
A rule of law that, in some
jurisdictions, holds that a person
can only defend a third party
under circumstances and only to
the degree that the third party
could act on his or her own behalf.
Situations defense of property, also called protection of property, can be applied
(1) protection of personal property, (2) defense of home or habitation, (3) defense of
another's property, and (4) use of a mechanical device to protect property
The castle exception
An exception to the retreat rule
that recognizes a person's
fundamental right to be in his or
her home and also recognizes the
home as a final and inviolable place
of retreat. Under the castle
exception to the retreat rule, it is
not necessary to retreat from
one's home in the face of an
immediate threat, even where
retreat is possible, before resorting
to deadly force in protection of
the home
execution of public duty
A defense to a criminal charge,
such as assault, that is often
codified and that precludes the
possibility of police officers and
other public employees from being
prosecuted when lawfully
exercising their authority.
Requirements of a lawful arrest
(1) making the purpose of the arrest known
to the person arrested and (2) using a valid arrest warrant (if the arrest is to be made on the
authority of a warrant—something that is not necessary if the crime was committed in
the officer's presence)
Fleeing Felon Rule
A now-defunct law enforcement
practice that permitted officers to
shoot a suspected felon who
attempted to flee from a lawful
A justification, offered as a defense
to a criminal charge, that claims
that the person suffering an injury
either agreed to sustain the injury
or accepted the possibility of
injury before the activity was
Justification versus Excuse
justification declares the allegedly criminal act legal; excuse admits the act's criminality, but declares the allegedly criminal actor
not to be worthy of blame
Excuses admit that the action committed by
the defendant was wrong and that it violated the criminal law but claim that
the defendant should be excused from criminal liability by virtue of special
conditions or circumstances that suggest that the actor was not responsible for his or her
deeds. The majority of excuses are personal in nature, that is, they claim that the defendant
acted on the basis of some disability or some abnormal condition, such as intoxication,
insanity, or immaturity. Even when a defendant suffers from a disability, however, that
disability alone is not sufficient to excuse him or her of criminal responsibility. Only when
the disability has the effect of in some way contributing to the criminal activity in question
will the actor be excused. Like justifications, excuses are affirmative defenses and must be
raised by the defendant.
(1) duress, (2) involuntary intoxication, (3) mistake, (4) age, (5) entrapment,
(6) insanity, and (7) diminished responsibility. All of these excuses are discussed in this
chapter. Also discussed here is the special area of syndrome-based defenses, a form of excuse
that has recently entered the legal limelight.
A condition under which one is
forced to act against one's will.
Also called compulsion.
duress is a defense only when the crime committed is less serious than
the harm avoided. Some jurisdictions limit the applicability of the duress defense to less serious
crimes; others state that it cannot be used as a defense to a charge of homicide; and
still others broaden the ban to all crimes of personal violence.
Duress, justification or an excuse?
Some legal scholars say that duress may qualify as either a justification or an excuse. The main difference, they point out, is that necessity(justification for unlawful behavior) is brought about by acts of nature or natural events,whereas duress is imposed by one human being on another. Whenever a person is forced to act in violation of the law, whether by reason of human or natural "pressure," he or she is probably convinced that such action is necessary.
What must the effective use of the duress defense be based on?
showing that the defendant feared for his or her life or was in danger of great bodily harm—or that the defendant was acting to prevent the death or bodily harm of another.9 Likewise, the threat under which the defendant acted must have been immediate, clear, and inescapable and must not have arisen from some illegal or immoral activity of the defendant.
The MPC states
that the defense of duress is "unavailable if the actor recklessly placed himself in a situation
in which it was probable that he would be subjected to duress.
fault exception
A clause, found in many state statutes that codify the defense of duress, when the actor recklessly placed himself in a situation
in which it was probable that he would be subjected to duress.
A claim of intoxication is generally not regarded as an effective defense even when the intoxication results from alcoholism, and laws that codify the defense usually set strict limits on the use of the intoxication defense. Intoxication is not a useful defense because most intoxicated individuals are responsible for their impaired state, and the law generally holds that those who voluntarily put themselves in a condition in which they have little or no control over their actions must be held to have intended whatever consequences ensue. In some jurisdictions and for certain crimes, however, voluntary intoxication may lessen criminal liability. Such is the case where a high level of intoxication makes it impossible for a person to form the mens rea necessary for a given offense.
voluntary intoxication
Willful intoxication; intoxication
that is the result of personal
choice.Voluntary intoxication
includes the voluntary ingestion,
injection, or taking by any other
means of any intoxicating liquor,
involuntary intoxication
Intoxication that is not willful. Involuntary intoxication may serve as a defense if it either creates in the defendant an
incapacity to appreciate the criminality of his or her conduct or creates an incapacity to
conform his or her behavior to the requirements of the law.
Mistake of Fact
Misinterpretation, misunderstanding,
or forgetfulness of a fact relating
to the situation at hand; belief in
the existence of a thing or
condition that does not exist.
Reasonable Mistake
Misinterpretation, misunderstanding,
or forgetfulness of a fact relating
to the situation at hand; belief in
the existence of a thing or
condition that does not exist.
Ignorance of Fact
Lack of knowledge of some fact
relating to the situation at hand.
Ignorance of The Fact vs. Mistakes of Fact
Ignorance of fact refers to a lack of knowledge of some fact relating to the matter at hand, while mistake of fact refers to a misinterpretation or misunderstanding of the facts at hand. Both can be defenses to a
criminal charge. As a defense, both ignorance of fact and mistake of fact may negate the mens rea required for a specific offense.
mistake of law
A misunderstanding or
misinterpretation of the law
relevant to the situation at hand.
mistake of law may be a valid defense to a criminal charge if made in good faith
under circumstances involving a bona fide attempt to ascertain the meaning of the law
through reliance on a public official who is in a position to interpret the statute or through
the use of appropriate legal counsel. In some jurisdictions, a defendant may effectively raise
such a defense where "before engaging in the conduct, the defendant made a bona fide, diligent
effort, adopting a course and resorting to sources and means at least as appropriate as
any afforded under our legal system, to ascertain and abide by the law, and where he acted
in good faith reliance upon the results of such effort."
ignorance of the law
A lack of knowledge of the law or
of the existence of a law relevant
to the situation at hand. neither ignorance of the law nor a misunderstanding of the law provides for an acceptable defense, and criminal proceedings assume that "every one capable of acting for himself knows the law."18 This assumption does not mean, of course, that everyone is actually familiar with each and every law, but it effectively compels people to learn the standards set by the law in their sphere of activity
ignorance or mistake of law may be a defense in cases in
which a given offense requires specific intent or in which mistake of law negates the mens rea
required by a statute.
Ignorance of the law may also be an excuse where the law is not adequately published or
is incapable of being known.
culpable ignorance
The failure to exercise ordinary
care to acquire knowledge of the
law or of facts that may result in
criminal liability.
infancy defense
A defense that claims that certain
individuals should not be held
criminally responsible for their
activities by virtue of their youth.
Also called immaturity defense.
juvenile offender
A child who violates the criminal
law or who commits a status
offense.Also, a person subject to
juvenile court proceedings because
a statutorily defined event caused
by the person was alleged to have
occurred while the person was
below the statutorily specified age
limit of original jurisdiction of a
juvenile court.
to adult court requires a showing by the prosecution that the child was able to "appreciate
the wrongfulness of [his or her] conduct," that the child had "a guilty knowledge of wrongdoing,"
or that the child was "competent to know the nature and consequences of his [or
her] conduct and to know that it was wrong."
The defense of infancy is based on the chronological age of the defendant. It has not
been successful when based on claims of mental immaturity. Courts have held that those
who have passed the chronological age necessary for criminal responsibility cannot raise
the defense of infancy based on psychological determinations of mental immaturity because"if by reason of mental disease or defect a particular individual has not acquired [the ability
to observe legal requirements] his remedy is a defense based on idiocy or insanity."
Infancy to Seven Years Old
Usually can't be charged, even as a minor. There is a possible defense of infancy (Automatic). The violators in this case are usually not referred to as anything (i.e. offenders or criminals) and are not convicted
Seven Years Old to Age of Responsibility (Varies by state)
Would be charged as a minor. The violators in this case are referred to as Juvenile Offender. There is a possible defense of infancy and in the conviction is adjudicated delinquent.
If it is a serious or habitual offense, the person is charged as an adult and is considered a criminal, there is not a possibility for a defense of infancy (regardless of mentality) and the person is usually convicted as Found Guilty
At the Age of Responsibility
The person is charged as an adult and is considered a criminal, there is not a possibility for a defense of infancy (regardless of mentality) and the person is usually convicted as Found Guilty
An improper or illegal inducement
to crime by enforcement agents.
Also, a defense that may be raised
when such inducements occur.
If the individual is known to possess illegal drugs and then an uncover police officer affords a chance to sell and the individual consents to sale, a legal arrest can be made. If the individual refuses the sale and the officer offers ten times his original price and the individual consents to sale, the arrest would be illegal
Entrapment cannot be effectively raised as a defense, however, where government employees
"merely afford opportunities or facilities for the commission of the offense" or where law enforcement
officers or their representatives engage in the "mere fact of deceit."
Two Most Common Inducements to Entrapment Activities
(1) false representation by enforcement agents that are calculated to induce the
belief that the illegal behavior is not prohibited and (2) the use of inducements to crime that
are so strong that a person of average will and good intent could not resist
Subjective Approach (or test)
Standard: Is defendant predisposed to commit
the crime?
Evidence: Defendant's record, statements, etc.
Effect: If defendant is predisposed, then he
or she will be convicted regardless
of government conduct.
Where Used: Federal government and majority of states
The test excludes from criminal liability people who are "otherwise innocent, who have been
lured to the commission of the prohibited act through the Government's instigation."32
The subjective test attempts to distinguish between those who are blameworthy and those
who are not, by asking whether a person "caught" by the government was predisposed to
commit the crime in question. In doing so, it distinguishes "unwary criminals," who are
ready and willing to commit the offense when presented with a favorable opportunity, from
those who are not. Some courts have held that predisposition can be established by demonstrating a defendant's (1) prior convictions for similar crimes, (2) reputation for committing similar crimes, or (3) readiness to engage in a crime suggested by the police.33 The subjective test for entrapment uses the criterion of "origin of intent." It asks, "Did the criminal intent start in the mind of the officers, or was the defendant 'predisposed' to commit
the offense when the officer first appeared on the scene?"34 Hence, following the subjective
approach, traps may be legitimately laid by the government only for those who are already
bent on crime.
Objective Approach or Test
Standard: Does government behavior create
substantial risk that someone not
predisposed will commit the offense?
Evidence: Government's conduct
Effect: If government's conduct is excessive,
then defendant will be acquitted
regardless of predisposition
Where Used: MPC and minority of
The objective test to assessing entrapment is based on "the belief that the methods employed
on behalf of the Government to bring about conviction cannot be countenanced."35
If government agents have acted in a way that is likely to instigate or create a criminal offense,
regardless of the defendant's predisposition to crime, then—according to the objective
approach—the defendant can successfully raise the defense of entrapment. The
objective approach to assessing entrapment is sometimes referred to as the defense of
outrageous government conduct.
outrageous government
A kind of entrapment defense
based on an objective criterion
involving "the belief that the
methods employed on behalf of
the Government to bring about
conviction cannot be
woman's syndrome (BWS)
A condition characterized by a
history of repetitive spousal abuse
and "learned helplessness" (the
subjective inability to leave an
abusive situation).Also,"a series of
common characteristics that
appear in women who are abused
physically and psychologically over
an extended period of time by the
dominant male figure in their lives;
a pattern of psychological
symptoms that develop after
somebody has lived in a battering
relationship; or a pattern of
responses and perceptions
presumed to be characteristic of
women who have been subjected
to continuous physical abuse by
their mate[s]."iii Also called battered
person's syndrome.
As is the case with syndromes generally, BWS is not in itself a defense. It is a condition said
to characterize women who live in abusive relationships. BWS may, however, provide additional
justification for a woman who kills a battering spouse during an episode of battering—
when the threat of serious bodily harm or death is imminent. As an excuse for killings that
do not occur within the context of an immediate threat, however, BWS has proven less effective
in eliminating criminal liability, although it may lessen it, as provocation generally
does (resulting, for example, in a manslaughter conviction rather than a conviction for firstdegree
or second-degree murder).
Syndrome-Based Defense Enhancements
personal abnormalities, generally supplement defenses
based on excuses rather than those claiming justifications. According to mental
health law expert Stephen Morse, "[A]bnormalities are usually excusing conditions that bear on the accused's responsibility, rather than objectively justifying conditions that make
otherwise wrongful conduct right under the circumstances."
If it can be demonstrated that a
person charged with a crime was "suffering" from a known syndrome at the time that the
crime was committed, such a showing may lower or eliminate criminal liability in at least
three ways: (1) It may help support the applicability of a traditional defense (including
a justification); (2) it may expand the applicability of traditional defenses (including justifications)
to novel or unusual situations or to situations in which such defenses might
not otherwise apply; or (3) it may negate the mens rea needed to prove the offense, leading
the jury or trial judge to conclude that a crucial element necessary to prove the crime
is missing. Some suggest a fourth possibility, however, and that is "the creation of new
affirmative defenses,"42 in which novel and unique defenses, beyond those now recognized
by law, would take their place alongside other more traditional defenses, such
as duress, mistake, and self-defense.
A complex of signs and symptoms
presenting a clinical picture of a
disease or disorder.
syndrome-based defense
A defense predicated on, or
substantially enhanced by, the
acceptability of syndrome-related
Other Syndromes
BWS was one of the first syndromes to be raised as a defense
enhancement in American courtrooms. Many others have since followed. Among them are
these48: adopted child syndrome, false memory syndrome, premenstrual syndrome (PMS),
holocaust survival syndrome (see, for example, Werner v. State49), attention deficit disorder
(raised in defense of Michael Fay, the teenager "caned" in Singapore in 1994), black rage
defense (created by William Kunstler and offered in defense of Colin Ferguson, the Long
Island Rail Road shooter), elder abuse syndrome, fetal alcohol syndrome (a variation of
which was used in defense of Eric Smith, the 14-year-old who sodomized and killed a fouryear-
old neighborhood boy), Gulf War syndrome, Munchausen by proxy syndrome (wherein
a caregiver injures his or her children to gain attention), nicotine withdrawal syndrome,
repressed memory syndrome (used by California prosecutors to convict George Franklin, Sr.,
of the rape-murder of his eight-year-old daughter's friend 20 years after the killing), rotten
social background syndrome, parental abuse syndrome (employed by Erik and Lyle
Menendez), post-traumatic stress disorder, rape trauma syndrome (see, for example, State v.
Marks50), ritual abuse syndrome (abuse at the hands of Satanic and other cults), UFO
survivor syndrome, urban survival syndrome (used to defend Texas killer
Daimian Osby), and Vietnam syndrome (see, for example, State v. Kenneth J.
Sharp, Jr.51). One especially recent syndrome to be discussed in the medical
literature is Internet addiction disorder (IAD). Specialists studying this
disorder say that IAD is as real as alcoholism. People with IAD tend to lose
control over their daily activities and crave the use of the Internet. They even
have withdrawal symptoms when forced to forgo access to the Internet for an
extended period of time.
Problems with Syndrome-Based Defense Enhancements
One of the
central problems with all defenses based on syndromes is that there is no syndrome
that includes homicide, or any other law-breaking behavior, as a symptom of or as
an inevitable result of the syndrome. In other words, according to most specialists,
most people suffering from syndromes are as capable of controlling their behavior
as anyone else.54 In fact, most do. Speaking loosely, for every 100 people afflicted
with some "syndrome," 99 do not violate the criminal law, and far fewer kill
Another problem with syndrome-like excuses is that, in a fundamental sense, they seem to
rely on a tactic of blame shifting, in which the victim of crime is made to seem less like a victim
and more like a criminal in hopes that a jury will side with the defendant. Blame shifting attempts
to convince the jury that the victim "had it coming" and builds on such notions as a
history of abuse that can actually justify homicide.
psycholegal error
The mistaken belief that if we
identify a cause for conduct,
including mental or physical
disorders, then the conduct is
necessarily excused.
Mental competency is an important concept in the law, particularly criminal law. A defendant's
mental state is assessed using different legal tests at various points in the criminal justice
process. The two most significant points are at trial and at the time of the commission of the crime.
competent to stand trial
A finding by a court that the
defendant has sufficient present
ability to consult with his lawyer
with a reasonable degree of
rational understanding and that the
defendant has a rational as well as
factual understanding of the
proceeding against him or her.
An individual's act may be
excused if, at the time of the
crime, he or she is legally
insane under the applicable
standard (M'Naughten, MPC,
If not guilty by reason of
insanity, accused is assessed
and committed if dangerous.
If not, he or she is released
If guilty but mentally ill,
convict is provided treatment
during incarceration/
At Trial
An accused may not be tried
if not rational or if incapable of
assisting in his or her own
Trial may proceed when
defendant regains ability to
assist in defense. Temporary
detention is permitted while
awaiting competency
restoration. Longer detentions
must occur through civil
commitment procedures
At Sentencing
Insane and mentally retarded
convicts may not be executed
but may otherwise be punished
Some states provide for
mandatory psychological
assessment of specific
offenders (e.g., sexual
predators) for dangerousness.
If dangerous, civil commitment
is used to continue detention
incompetent to stand trial
A finding by a court that—as a
result of a mental illness, defect, or
disability—a defendant is unable to
understand the nature and object
of the proceeding against him or
her or is unable to assist in the
preparation of his or her own
Ways The Criminal Liability is Influenced
(1) It may result in a finding that
the mens rea required for a specific crime was lacking, leading the court to conclude that no
crime occurred, or (2) it may lead to a showing that although the requisite mens rea was present
at the time of the crime, the defendant should be excused from legal responsibility because necessary mens rea but is able to successfully raise the defense of insanity, a not guilty by reason
of insanity (NGRI) verdict should be returned. In short, as a defense, insanity recognizes
that some people, by virtue of mental disease or mental defect, cannot morally and
justly be held accountable for their actions.
of mental disease or defect. The first perspective allows that a given mental condition
may negate an element of an offense, while the latter recognizes that a crime took place but
excuses the perpetrator due to a lack of moral blameworthiness. If mens rea cannot be proven
by the prosecution, a finding of not guilty should result. If the defendant possessed the
not guilty by reason
of insanity (NGRI)
The plea of a defendant, or the
verdict of a jury or judge in a
criminal proceeding, that the
defendant is not guilty of the
offense charged because at the
time the crime was committed, the
defendant did not have the mental
capacity to be held criminally
responsible for his or her actions.
An affirmative defense to a
criminal charge; a social and legal
term (rather than a medical one)
that refers to "a condition which
renders the affected person unfit
to enjoy liberty of action because
of the unreliability of his behavior
with concomitant danger to
himself and others."v Also, a finding
by a court of law
Organic Mental Disorders
Psychological or behavioral abnormalities associated with temporary or permanent dysfunction of the brain. Causes include
aging, disease, injury, and drugs. Delirium and dementia are subcategories.
Characterized by symptoms like disordered thought processes and delusions or hallucinations. Symptoms must exist for more than six
months for a diagnosis of schizophrenia to be made. Catatonic and paranoid schizophrenia are subtypes.
Dissociative Disorder
Characterized by a splitting or dissociation of normal consciousness. Included here are multiple personalities, psychogenic
amnesia, and psychogenic fugue.
Delusional Disorders
Characterized by a dominant delusion (for example, the belief that the person is being persecuted). Delusions may also be
associated with schizophrenia
Personality Disorders
Chronic, inflexible, and maladaptive personality patterns that are generally resistant to treatment.Antisocial personality disorder is one subtype.
Psychosexual Disorders
Characterized by sexual arousal via unusual objects (fetishism) or situations or by sexual dysfunctions
Impulse Control Disorders
Characterized by an inability to control impulses and by impulsive behavior. Included are kleptomania, pyromania, and
pathological gambling.Addictions, including drug addiction, alcoholism, and food addition, may also fall into this category
Psychoactive Substance Use Disorders
Produced by excessive and long-term use of mind-altering substances, such as stimulants, barbiturates, cocaine,
heroin, and alcohol
Mood Disorders
Also known as affective disorders. Characterized by emotional extremes. Major depression and manic-depressive (bipolar) disorders are included
Anxiety Disorders
Characterized by apprehension, dread, and fear and sometimes associated with particular situations or types of situations but may
also exist independently of such situations. Phobias, generalized anxiety disorder, panic attacks, and obsessive-compulsive disorders are subtypes
Somatoform Disorders
Physical symptoms, such as paralysis, without biological explanation. Hypochondriasis, conversion disorder, and somatization disorder are subtypes
Disorders Evident in Infancy, Childhood, or Adolescence
Disorders characterized by early onset, including mental retardation, attention-deficit
disorder, hyperactivity, anorexia, bulimia, stuttering, sleepwalking, and bed-wetting
The fourth edition of the
Diagnostic and Statistical Manual of
Mental Disorders, published by the
American Psychiatric Association.vi
The DSM-IV lists 12 major
categories of mental disorders
M'Naughten rule
A rule for determining insanity
that asks whether the defendant
knew what he or she was doing or
whether the defendant knew that
what he or she was doing was
The Insanity Defense Reform Act
A part of the 1984 Crime Control
and Prevention Act that mandated
a comprehensive overhaul of the
insanity defense as it operated in
the federal courts.The IDRA made
insanity an affirmative defense to
be proved by the defendant by
clear and convincing evidence and
created a special verdict of not
guilty by reason of insanity
The M'Naughten rule's Possibilities
(1) a lack of mens rea (the person didn't know what he or she was doing) and (2) an acceptable legal excuse (the person didn't know that it was wrong). Either alternative provides an acceptable defense under M'Naughten
Comparison between Insanity Tests
Defendant was suffering
from mental disease that
caused defendant to not
know nature and quality of
act or that act was wrong.
Expanded M'Naughten to
cover individuals who knew
their acts were wrong but
could not control their
behavior because of
disease of mind.
Incorporated both
M'Naughten and irresistible
impulse and expanded
them by broadening to
include individuals with
substantial (as opposed to
total) impairment and
individuals who
"appreciated" (as opposed
to "knew") that their actions
were wrong.
irresistible impulse test
A test for insanity that evaluates
defense claims that at the time the
crime was committed, a mental
disease or disorder prevented the
defendant from controlling his or
her behavior in keeping with the
requirements of the law.
Durham rule
A rule for determining insanity
that holds that an accused is not
criminally responsible if his or her
unlawful act was the product of
mental disease or mental defect.
Also called product rule.
substantial capacity test
A test developed by the American
Law Institute and embodied in the
Model Penal Code that holds that
"a person is not responsible for
criminal conduct if at the time of
such conduct as a result of mental
disease or defect he lacks
substantial capacity either to
appreciate the criminality
[wrongfulness] of his conduct or
to conform his conduct to the
requirements of the law."
guilty but mentally ill (GBMI)
A verdict, equivalent to a finding of
guilty, that establishes that "the
defendant, although mentally ill,
was sufficiently in possession
of his faculties to be morally
blameworthy for his acts."
Four Possible Verdicts When the GMBI INsanity Defense is Raised
(1) guilty, (2) not guilty, (3) not
guilty by reason of insanity, and (4) guilty but mentally ill
A finding of GBMI is equivalent to a finding of guilty, and the court will sentence the defendant
just as a person found guilty of the crime in question would be sentenced. A GBMI
verdict establishes that "the defendant, although mentally ill, was sufficiently in possession
of his faculties to be morally blameworthy for his acts."107 As one author says, "The most obvious
and important function of the GBMI verdict is to permit juries to make an unambiguous
statement about the factual guilt, mental condition, and moral responsibility of a
Once sentenced, GBMI offenders are evaluated to determine whether hospitalization or
psychiatric treatment is needed. If the offender is hospitalized, he or she will join the "regular"
prison population on release from the treatment facility. Time spent in the hospital
and in prison both count toward sentence completion, and the offender will be released
from custody after the sentence has been served, even if he or she still suffers from mental
When A Jury Returns a Finding of Guilty but Mentally Ill
(1) every element necessary for a conviction has been proven beyond
a reasonable doubt, (2) the defendant is found to have been mentally ill at the time
the crime was committed, and (3) the defendant was not found to have been legally insane
at the time the crime was committed. The difference between mental illness and legal insanity
is a crucial one.
Diminished Capacity
A defense based on claims of a
mental condition that may be
insufficient to exonerate a
defendant of guilt but that may be
relevant to specific mental
elements of certain crimes or
degrees of crime.Also called
diminished responsibility.
Diminished Defensed vs. Defense of Insanity
The diminished capacity defense is similar to the defense of insanity in that it depends
on showing that the defendant's mental state was impaired at the time of the crime. As a defense,
diminished capacity is most useful when it can be shown that, because of some defect
of reason or mental shortcoming, the defendant's capacity to form the mens rea required by
a specific crime was impaired. Unlike an insanity defense, however, which can result in a
finding of not guilty, a diminished capacity defense is built on the recognition that "[m]ental
condition, though insufficient to exonerate, may be relevant to specific mental elements
of certain crimes or degrees of crime."
Procedural Law
The rules by which a court hears and determines what happens in civil lawsuit, criminal or administrative proceedings.
criminal law vs. civil law
Criminal Law is the body of rules and regulations that defines and specifies punishments for offenses of a public nature or for wrongs committed against the state or society. Also called penal law. Civil law is the form of the law that governs relationships between parties
Classification of Offenses into Four Types
(1) property crimes, (2) personal crimes, (3) public order
offenses, and (4) morals offenses.
property crime
A crime committed against
property, including (according to
the FBI's UCR Program) burglary,
larceny, motor vehicle theft, and
Example: burglary, arson, criminal mischief (vandalism), property damage, motor vehicle theft, passing bad checks, commission of fraud or forgery, and so on
personal crime
(Offenses against persons) Also called violent crimes.
A crime committed against a person, including (according to the FBI's UCR Program) murder, rape, aggravated assault, and robbery. Also called violent crime. Personal crimes include criminal homicides, kidnapping and false imprisonment, various forms of assault, and rape
public-order offense
An act that is willfully committed
and that disturbs public peace or
tranquillity. Included are offenses like
fighting, breach of peace, disorderly
conduct, vagrancy, loitering, unlawful
assembly, public intoxication,
obstructing public passage, and
(illegally) carrying weapons.
Public-order offenses or crimes against the public order, include offenses such as fighting, breach of peace, disorderly conduct , vagrancy, loitering, unlawful assembly, public intoxication, obstructing public passage, and (illegally) carrying weapons
morals offense
An offense that was originally
defined to protect the family and
related social institutions. Included
in this category are crimes like
lewdness, indecency, sodomy, and
other sex-related offenses, such as
seduction, fornication, adultery,
bigamy, pornography, obscenity,
cohabitation, and prostitution.
Denote a category of unlawful conduct that was criminalized originally to protect the family and related social institutions. This category includes lewdness, indecency, sodomy, and other sex-related offenses, such as seduction, fornication, adultery, bigamy, pornography, obscenity, cohabitation, and prostitution
Defense Counsel vs. Prosecutor
The prosecutor represents the complainant and the state to present evidence to prove that the accused is guilty of the crime charged.

The defense attorney presents evidence to disprove the allegations of the complainant and witnesses.
Sources of Criminal Law
State and federal constitution, statutes and codes, judicial decisions, administrative agencies, common law
Result Crimes
Consist of criminal conduct that causes a criminal harm. Those in which the actus reus is defined in terms of prohibited consequences irrespective of these are brought about, i.e. causing death (murder). This differs from conduct crime. Includes actus reus, mens rea, concurrence, causation, harm
conduct crime and a result crime
Conduct and result crimes are those in which the actus reus is defined in terms of a prohibited outcome that has to be caused in a particular way by specific conduct.
Arson involves a combination of a prohibited result (damage or destruction of property) and conduct (the property must be destroyed by fire).
Conduct Crimes
are those in which the actus reus is concerned with prohibited behavior regardless of consequences (example: blackmail).
Knowing Mens Rea
Knowing (knowing behavior):Action undertaken with awareness that the outcome is practically certain
didn't hope she'd die but knew with substantial certainty that she would. Example: She needed to be taught a lesson for roaming carelessly in the street. If it cost her life, then so be it
Reckless (reckless behavior) Mens Rea
Activity that increases the risk of harm. It exists more in the form of probability than certainty. Recklessly means, with respect to a result or to a circumstances described by a statute defining an offense, that a person is aware and consciously disregards a substantial and unjustifiable risk that the result will occur or that the circumstances exists
Did not know for sure, but considered chance and acted anyway. Example: Maybe if I had not been going 20 mph over the speed limit I would have seen the stop sign or drinking while driving
Negligent (criminal negligence) Mens Rea
(1) Behavior in which a person fails to reasonably perceive substantial and unjustifiable risks of dangerous consequences. The risk must be of such nature and degree that the failure to perceive it constitutes a gross deviation from the standard of care that a reasonable person would observe in the situation (2) Negligence of such a nature and to such a degree that it is punishable as a crime. (3) Flagrant and reckless disregard for the safety of others, or willful indifference to the safety and welfare of others
Did not think about possibility but if he had used ordinary common sense he would have realized there was substantial risk. Example: I should have been watching the road instead of talking on my cell phone and using GPS
Direct versus Circumstantial Evidence
If John testifies that he saw Tom raise a gun and fire it at Ann and that Ann then fell to the ground, John's testimony is direct evidence that Tom shot Ann. If the jury believes John's testimony, then it must conclude that Tom did in fact shoot Ann. If, however, John testifies that he saw Tom and Ann go into another room and that he heard Tom say to Ann that he was going to shoot her, heard a shot, and saw Tom leave the room with a smoking gun, then John's testimony is circumstantial evidence from which it can be inferred that Tom shot Ann. The jury must determine whether John's testimony is credible.
Felony Murder
An exception to the general notion that criminal liability does not accrue when the harm that results is different in kind from the harm intended. Felony murder statutes hold a person involved in the commission of a felony responsible of homicide if another person dies during the offense, even though the death may have been unintentional
Defenses to Attempt
Impossibility and abandonment
Why not punish thoughts?