February 8, 2013

[CRIMINAL LAW]

I.

Punishment

Purposes a. Deterrence Considered a utilitarian theory; justified by preventing future harms Two Types: 2. 3. General individuals will not commit crimes for fear of suffering the same punishment that current defendant has suffered Specific this defendant will avoid future crimes because he or she too fears additional punishment b. Retribution 1. 2. 3. 4. The person will be changed/corrected by the system Justifications supposedly look to the past rather than the future Goal is to ensure that the individual gets what he deserves Eye for an Eye c. Rehabilitation 1. Utilitarian theory

2. Premised on the idea that society has an obligation to punish an individual in a way that makes him a better person and citizen tomorrow d. Isolation 1. 2. 3. Focuses on isolating wrongdoers from law-abiding persons Variation on deterrence AKA incapacitation e. Education

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1. Punishing wrongdoers for the evil that they do educates the rest of the populace in: 2. II. what rules society considers most sacred and important, what value it holds, what procedures it sees as fair, and how it values individuals and groups General deterrent Criminal Statutes a. Basics of Criminal Prosecution 1. Indictment formal document issued by a grand jury charging someone with a crime 2. Information prosecutor filing a requisite document to initiate a prosecution 3. Trial jury hears the facts during a case (petit trial jury)

4. Grand jury a screening process for prosecution to see if they have a good enough case 5. Jury instructions occur at every trial i. Statement of the law given to the jury at the end of the trial ii. Contains a description of the elements of a crime that the jury must find beyond a reasonable doubt b. Elements of a crime 1. The Act Actus Reus i. Act, as elements of crimes, are pre-supposed to be voluntary 2. The Mental State Mens Rea i. Look for intent, knowledge, purpose in a statute to indicate mens rea

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3.

Attendant circumstances i. An element of the crime that is a condition that must be present at the time of the defendants action or inaction that contributes to the determination that the act is deemed a crime Value of an item taken Time or location of an act Amount of illegal substance involved Intoxication 1. determine whether a crime is a felony or a misdemeanor

4.

Causation i. Often times the statute will use the word cause

5.

Result i. Look for an event after the word cause Most crimes have fewer than all five of these elements, and some crimes have all five, but multiple versions of them Arson a person is guilty of arson if he starts a fire or causes an explosion at a building owned by another o Actus reus starts a fire o Cause causes o Result an explosion o Attendant circumstances building owned by another Kidnapping o Act takes a person o Attendant circumstances residence or business o Intent: Mens Rea knowingly or intentionally w/ specific intent: purpose of holding for ransom or reward

III. ACT

Criminal Acts

Actus Reus the wrongful act;

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Requirements of an Act: 1. The need for some identifiable conduct in the definition of a crime. 2. Requirement that the act (or omission) be voluntary. MPC 2.01 Requirement of Voluntary Act; Omission as Basis of Liability; Possession as an Act (1) A person is not guilty of an offense unless his liability is based on conduct which includes a voluntary act or the omission to perform an act of which he is physically capable (2) The following are not voluntary acts w/in the meaning of the Code: A reflex or convulsion A bodily movement during unconsciousness or sleep Conduct during hypnosis or resulting from hypnotic suggestion A bodily movement that otherwise is not a product of the effort or determination of the actor, either conscious or habitual Unconsciousness o Where not self-induced, as by voluntary intoxication or the equivalent o Unconsciousness is a complete defense to a charge of criminal homicide (3) Liability for the commission of an offense may not be based on an omission unaccompanied by action unless: (a) the omission is expressly made sufficient by the law defining the offense; or (b) a duty to perform the omitted act is otherwise imposed by law. (4) Possession is an act, w/in the meaning of this Section, if the possessor knowingly procured or received the thing possessed or was aware of his control thereof for a sufficient period to have been able to terminate his possession. It need not reach the physical dimensions commonly associated with the term; it can exist where the subject physically acts in fact but is not, at the time, conscious of acting Voluntary act a bodily movement performed while conscious as a result of effort or determination; or

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An omission to perform an act of which the actor is physically capable simply having an act is not sufficient as seen the Martin it is essential that the act be a voluntary act possession is a voluntary act if the possessor knowingly procures or receives the thing possessed or having acquired control of it was aware of his control for a sufficient time to have enabled him to dispose of it or terminate his control Omission as actus reus A person shall be criminally responsible for a result if the person fails to take action to prevent that result, but for this failure to take action the result would not have occurred, and the failure to take action constitutes a substantial deviation from common decency. In determining whether a failure to act constitutes a substantial deviation from common decency the following factors shall be taken into account: o The seriousness of the result o The likelihood that the result would occur w/o action, o Any burden or risk which taking action would have required the person to assume, and o Any responsibility of the person for creating the need for action. Omission to perform a duty which the law imposes upon him and which he is physically capable of performing; and He has engaged in such conduct intentionally, knowingly, wantonly, or recklessly as the law may require, with respect to each element of the offense There must be more than a mere moral obligation When there is a question of duty, look to the following sources of a legal duty: o Statute o Status of relationship between victim and D o Contract o Assume and exclude (taking on responsibility voluntarily and preventing others from doing so) MPC 2.01 Omission as Basis of Liability

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(3) Liability for the commission of an offense may not be based on an omission unaccompanied by action unless: (a) the omission is expressly made sufficient by the law defining the offense; or (b) a duty to perform the omitted act is otherwise imposed by law. Four Situations were failure to ACT may constitute a breach of legal duty Statute imposes a duty-duty to stop a death if its in your control!!!! Limited risk to yourself except for a tounge lashing by an angry wife. Stands in a certain status relationship to another affair. girlfriend Where one has assumed a contractual duty to care for another-partying with her, saw her take a pills while in his care Where one has voluntarily assumed the care of another and so secluded the helpless person as to prevent others from rendering aid.invited her into his home! Incoherent when stashed away! Worried about his own butt and the anger of his wife. Person creates a risk of harm to another- put her in a basement. Didnt call for help for an entire hour. An HOUR!!! Regardless if she hid the pills at first, he was aware when she took them and witnessed her taking them because he had knocked some of the pills out of her hand and crushed them. Bad Bad boy.

IV.

Mens Rea a. General intent

no particular mental state is set out in the definition of the crime and, therefore, the prosecutor need only prove that the actus reus of the offense was performed with a morally blameworthy state of mind. i. lower, requiring proof that the defendant engaged consciously in the act that constitutes the offense

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ii.

iii. iv.

but the govt need not prove that the defendant sought a particular result or was fully conscious that he was committing a crime can be silent or use amorphous terms such as feloniously, maliciously, wrongfully, or willfully Silence can also mean strict liability or special common law mens rea requirement

Another usage of the term general intent is to designate as general intent ANY mental state, whether expressed or implied, in the definition of the offense that relates solely to the acts that constitute the social harm of the criminal offense. (intent refers to mental state necessary to commit the crime, or social harm of the offense of the application of force upon another battery). b. Specific Intent i. ii. iii. Higher, requiring proof that the defendant had a particular state of mind that involved the commission of the offense Usually laid out in the statute We need something more than a significant awareness of what you are doing to establish badness

Sometime defined as the mens rea element of intent or knowledge. Proff or motive for committing the crime. (possession of marijuana w/ INTENT to sell) MPC 2.02 General Requirements of Culpability (1) Minimum Requirements of Culpability. Except as provided in Section 2.05, a person is not guilty of an offense unless he acted purposely, knowingly, recklessly or negligently, as the law may require, with respect to each material element of the offense. (3) Culpability Required Unless Otherwise Provided. When the culpability sufficient to establish a material element of an offense is not prescribed by law, such element is established if a person acts purposely, knowingly or recklessly with respect thereto.

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(4) Prescribed Culpability Requirement Applies to All Material Elements. When the law defining an offense prescribes the kind of culpability that is sufficient for the commission of an offense, without distinguishing among the material elements thereof, such provision shall apply to all the material elements of the offense, unless a contrary purpose plainly appears. (5) Substitutes for Negligence, Recklessness and Knowledge. When the law provides that negligence suffices to establish an element of an offense, such element also is established if a person acts purposely, knowingly or recklessly. When recklessness suffices to establish an element, such element also is established if a person acts purposely or knowingly. When acting knowingly suffices to establish an element, such element also is established if a person acts purposely. (6) Requirement of Purpose Satisfied if Purpose Is Conditional. When a particular purpose is an element of an offense, the element is established although such purpose is conditional, unless the condition negatives the harm or evil sought to be prevented by the law defining the offense. (7) Requirement of Knowledge Satisfied by Knowledge of High Probability. When knowledge of the existence of a particular fact is an element of an offense, such knowledge is established if a person is aware of a high probability of its existence, unless he actually believes that it does not exist. (8) Requirement of Wilfulness Satisfied by Acting Knowingly. A requirement that an offense be committed wilfully is satisfied if a person acts knowingly with respect to the material elements of the offense, unless a purpose to impose further requirements appears. (9) Culpability as to Illegality of Conduct. Neither knowledge nor recklessness or negligence as to whether conduct constitutes an offense or as to the existence, meaning or application of the law determining the elements of an offense is an element of such offense, unless the definition of the offense or the Code so provides.

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(10) Culpability as Determinant of Grade of Offense. When the grade or degree of an offense depends on whether the offense is committed purposely, knowingly, recklessly or negligently, its grade or degree shall be the lowest for which the determinative kind of culpability is established with respect to any material element of the offense. Note: MPC 1.13 material element of an offense means an element that does not relate exclusively to the statute of limitations, jurisidiction, venue, or to any other matter similarly unconnected with (i) the harm or evil, incident to conduct, sought to be prevented by the law defining the offense, or (ii) the existence of a justification or excuse for such conduct. The position of the MPC is that in the absence of a specific indication to the contrary w/ respect to any material element of an offense a culpability of at least recklessness would be required. When purpose or knowledge is required, it is convenient for drafting purposes to be explicit. And since negligence is an exceptional basis of liability, it should be excluded as a basis unless explicitly prescribed. Note: defendant wants everything to be a material element b/c the plaintiff will have to prove everything beyond a reasonable doubt. c. 4 kinds of mens rea: (1) Purposely: a person acts purposely with respect to a material element of an offense when: a. The element involves the nature of his conduct or a result thereof, it is his conscious object to engage in conduct of that nature or to cause such a result; and b. The element involves the attendant circumstances, he is aware of the existence of such circumstances or he believes or hopes that they exist (2) Knowingly: a person acts knowingly with respect to a material element of an offense when: a. If the element involves the nature of his conduct or the attendant circumstances, he is aware that his conduct is of that nature or that such circumstances exist and

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b. If the element involves a result of his conduct, he is aware that c. it is practically certain that his conduct will cause such a result d. Knowledge of high probability is sufficient (unless actually believes the element does not exist) e. May include willfully (3) Recklessly: a person acts recklessly with respect to a material element of an offense when: a. He consciously disregards a substantial and unjustifiable risk that the material element exists or will result from his conduct b. The risk must be of such a nature and degree that. Considering the nature and purpose of the actors conduct and the circumstances known to him, its disregard involves a gross deviation from the stand of conduct that a law abiding person would observe in the actors situation c. Reckless (MPC): conscious disregard of risk + gross deviation d. May include wantonly or maliciously (4) Negligently: a person acts negligently with respect ot a material element of an offense when: a. He should be aware of a substantial and unjustifiable risk that the material element exists or will result from his conduct b. The risk must be of such a nature and degree that the actors failure to perceive it, considering the nature and purpose of the actors conduct and the circumstances known to him, involves a gross deviation from the standard of care that a reasonable person would observe in the actors situation c. Criminal negligence= fails to perceive risk + gross deviation When negligence suffices to establish an element of an offense, such element is also established the person is shown to have acted purposely, knowingly, or recklessly o Any mens rea higher than what the statute requires is sufficient, but not the other way around o Look out for a person who is being willfully blind **(5) Willfully** (1) person intentionally committed the prohibited act

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(2) requires proof that the actor intentionally performed the prohibited act in bad faith, with a wrongful motive, or in violation of a known legal duty. IV Attendant Circumastances 1. An element of the crime that is a condition that must be present at the time of the defendants action or inaction that contributes to the determination that the act is deemed a crime - Value of an item taken - Time or location of an act - Amount of illegal substance involved - Intoxication 2. determine whether a crime is a felony or a misdemeanor a. Causation 1. Often times the statute will use the word cause b. Result 1. Look for an event after the word cause Most crimes have fewer than all five of these elements, and some crimes have all five, but multiple versions of them. MPC (Model Penal Code) 1.12 Proof Beyond a Reasonable Doubt; Affirmative Defenses; Burden of Proving Fact When Not an Element of an Offense; Presumptions (1) no person may be convicted of an offense unless each element of such offense is proved beyond a reasonable doubt. In the absence of such proof, the innocence of the defendant is assumed. (2) Subsection (1) of this section does not:

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(a) require the disproof of an affirmative defense unless and until there is evidence supporting such defense; or (b) apply to any defense that the Code or another statute plainly requires the defendant to prove by a preponderance of evidence. (3) A ground of defense is affirmative, within the meaning of Subsection (2)(a) of this Section, when: (a) it arises under a section of the Code which so provided; or (b) it relates to an offense defined by a statute other than the Code and such Statute so provides; or (c) it involves a matter of excuse or justification peculiarly within the knowledge of the defendant on which he can fairly be required to adduce supporting evidence. IV. Proof

a. In a criminal case, defendant do not have to disprove anything, the burden is on the prosecution. i. The defendant may provide evidence and show things, but are not required to ii. The defendant only needs the prosecution to fail to make its case iii. The defense only has to show that prosecution cannot meet its burden b. Policy i. It is far worse to convict an innocent man than to let a guilty man go free ii. Burden of production iii. Requires the govt to introduce sufficient evidence that the defendant committed the crime to permit the trier of fact to make the ultimate determination of guilt c. Burden of persuasion i. Beyond a reasonable doubt ii. The govt must prove the defendant committed the crime to such an extent that none of the jurors harbor a sufficient doubt d. Circumstantial Evidence

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i.

Prosecution need only introduce sufficient evidence to convince a reasonable jury of its theory of guilt despite the contradictory theory or evidence a defendant may offer

V.

THEFT a. Larceny i. Common law elements include: (1) Trespassory taking (2) And carrying away of movable (3) Personal property (4) Of another person (5) With intent to permanently deprive the person of the item Immovable same as above EXCEPT (5) With intent to benefit himself or another not entitled b. Larceny by trick i. Instead of taking property against the victims will, the larceny by trickster tricks, fools, etc. the victim into letting them have the property temporarily, but all the time planned to keep it for himself ii. You acquire possession but no title c. False Pretenses i. Also a person who tricks, fools, etc. but here it is to obtain title ii. The victim gives the trickster property permanently but does so because of the lies or false pretenses iii. You acquire title d. Embezzlement i. Lawful possession of the property (the taking of the property is not unlawful) and conversion for personal use ii. Fraudulent conversion of personal property by one who was entrusted with and received into his possession lawfully the personal property of another, and thereafter converted the property to his own use common law iii. Usually involves a breach of trust e. Receiving Stolen Property i. No person shall receive, retain or dispose of property of another ii. Knowing or having reasonable cause to believe

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iii.

That the property has been obtained though the commission of a theft offense

MPC 224.13 Misapplication of Entrusted Property & Property of Govt or Financial Inst. A person commits an offense if he applies or disposes of property that has been entrusted to him as a fiduciary, or property of the government or of a financial institution, in a manner which he knows is unlawful and involves a substantial risk of loss or detriment to the owner of the property or to person for whose benefit the property was entrusted. Fiduciary, includes trustee, guardian, executor, administrator, and receiver. MPC 223.0 Definitions (1) Deprive: (a) to withhold property of another permanently or for so extended a period as to appropriate a major portion of its economic value, or w/ intent to restore only upon payment of reward or other compensation; or (b) to dispose of the property so as to make it unlikely that the owner will recover it. (2) Financial Institution: a bank, insurance com., credit union, building and loan assoc., investment trust or other organization held out to the public as a place of deposit of funds or medium of savings or collective investment. (3) Govt: means the United States, any State, county, municipality, or other political unit, or any department, agency or subdivision of any of the foregoing, or any corp. or other assoc. carrying out the functions of govt. (4) Movable property: property the location of which can be changed, including things growing on, affixed to, or found in land, and documents although the rights represented thereby have no physical location; immovable property is all other property. (5) Obtain: (a) in relation to property, to bring about a transfer or purported transfer of a legal interest in property, whether to the obtainer or another; or (b) in relation to labor or service, to secure performance thereof.

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(6) Property: anything of value, including real estate, tangible and intangible personal property, contract rights, choses-in-action and other interests in or domestic animals, food and drink, electric or other power. (7) Property of Another: includes property in which any person other than the actor has an interest which the actor is not privileged to infringe, regardless of the fact that the actor has an interest in the property and regardless of the fact that the other person might be precluded from civil recovery b/c the property was used in an unlawful transaction or was subject to forfeiture as contraband. Property in possession of the actor shall not be deemed property of another who has only a security interest therein, even if legal title is in the creditor pursuant to a conditional sales contract or other security agreement. MPC 223.1 Consolidation of Theft Offenses; Grading; Provisions Applicable to Theft Generally (1) Consolidation of Theft Offenses. Conduct denominated theft in this Article constitutes a single offense. An accusation of theft may be supported by evidence that it was committed in any manner that would be theft under this Article, notwithstanding, subject only to the power of the Court to ensure fair trial by granting a continuance or other appropriate relief where the conduct of the defense would be prejudiced by lack of fair notice or by surprise. (2) Grading of Theft Offenses (a)Theft constitutes a felony of the 3 degree if the amount involved exceeds $500, or if the property stolen is a firearm, automobile, airplane, motorcycle, or other motor-propelled vehicle, or in the case of theft by receiving stolen property, if the receiver is in the business of buying or selling stolen property. (b) Theft not w/in the preceding paragraph constitutes a misdeameanor, except that if the property was not taken from the person or by threat, or in breach of a fiduciary obligation, and the actor proves by a preponderance of the evidence that the amount involved was less than $50, the offense constitutes a petty misdemeanor. (c) The amount involved in a theft shall be deemed to be the highest value, by any reasonable standard, of the property or services which the actor stole or

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attempted to steal. Amounts involved in thefts committed pursuant to one scheme or course of conduct, whether from the same person or several persons, may be aggregrated in determining the grade of the offense. (3) Claim of Right it is an affirmative defense to prosuction for theft that the actor: (a) was unaware that the property or service was that of another; or (b) acted under an honest claim of right to the property or service involved or that he had a right to acquire or dispose of it as he did; or (c) took property exposed for sale, intending to purchase and pay for it promptly, or reasonably believing that the owner, if present, would have consented. (4) Theft From Spouse it is no defense that theft was from the actors spouse, except that misappropriation of household and personal effects, or other property normally accessible to both spouses, is theft only if it occurs after the parties have ceased living together. MPC 223.2 Theft by Unlawful Taking or Disposition (1) Movable Property a person is guilty of theft if he unlawfully takes, or exercises unlawful control over, movable property of another w/ purpose to deprive him thereof. (2) Immovable Property a person is guilty of theft if he unlawfully transfers immovable property of another or any interest therein w/ purpose to benefit himself or another not entitled thereto. Conversion Similar to Larceny except for the property was lawfully acquired. Deals a lot with car rentals. MPC 223.3 Theft by Deception (1) creates or reinforces a false impression, including false impressions as to law, value, intention or other state of mind; but deception as to persons intention to perform a promise shall not be inferred from the fact alone that he did not subsequently perform the promise; or

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(2) prevents another from acquiring information which would affect his judgment of a transaction; or (3) fails to correct a false impression which the deceiver previously created or reinforced or which the deceiver knows to be influencing another to whom he stands in a fiduciary or confidential relationship; or (4) fails to disclose a known lien, adverse claim or other legal impediment to the enjoyment of property which he transfers or encumbers in consideration for the property obtained, whether such impediment is or is not valid, or is or is not a matter of official record. The term deceive does not, however, include falsity as to matters having no pecuniary significance, or puffing by statements unlikely to deceive ordinary persons in the group addressed. MPC 223.4 Theft by Extortion A person is guilty of theft if he purposely obtains property of another by threatening to: (1) inflict bodily injury on anyone or commit any other criminal offense; or (2) accuse anyone of a criminal offense; or (3) expose any secret tending to subject any person to hatred, contempt or ridicule, or to impair his credit or business repute; or (4) take or withhold action as an official, or cause an official to take or withhold action; or (5) bring about or continue a strike, boycott or other collective unofficial action, if the property is not demanded or received for the benefit of the group in whose interest the actor purports to act; or (6) testify or provide information or withhold testimony of information w/ respect to anothers legal claim or defense; or (7) inflict any other harm which not benefit the actor.

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It is an affirmative defense to prosecution based on paragraphs (2), (3) or (4) that the property obtained by threat of accusation, exposure, lawsuit or other invocation of official action was honestly claimed as restitution or indemnification for harm done in circumstances to which such accusation, exposure, lawsuit or other official action relates or as compensation for property or lawful services. MPC 223.7 Theft of Servs (1) A person is guilty of theft if he purposely obtains services which he knows are available only for compensation, by deception or threat, or by false token or other means to avoid payment for the service. Service includes labor, professional service, transportation, telephone or other public service, accommodation in hotels, restaurants or elsewhere, admission to exhibitions, use of vehicles or other movable property. Where compensation for service, as in the case hotels and restaurants, refusal to pay or absconding w/o payment or offer to pay gives rise to presumption that the services was obtained by deception as to intention to pay. (2) A person commits theft if, having control over the disposition of services of others, to which he is not entitled, he knowingly diverts such services to his own benefit or to the benefit of another not entitled thereto. MPC 11.46.486 Criminal mischief in the fourth degree (a) A person commits the crime of criminal mischief in the fourth degree if, having no right to do so or any reasonable ground to believe the person has such a right. (1) with reckless disregard for the risk of harm to or loss of the property or with intent to cause substantial inconvenience to another, the person tampers w/ property of another. (b) Criminal mischief in the fourth degree is a class B misdemeanor. MPC 220.3 Criminal Mischief (1) Offense Defined. A person is guilty of criminal mischief if he: (a) damages tangible property of another purposefully, recklessly, or by negligence in the employment of fire, explosives, or other dangerous means; or

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(b) purposefully or recklessly tampers w/ tangible property of another so as to endanger person or property; or (c) purposefully or recklessly cause another to suffer pecuniary loss by deception or threat. (2) Grading. Criminal is a felony of the third degree if the actor purposefully causes pecuniary loss in excess of $5,000, or a substantial interruption or impairment of public communication, transportation, supply of water, gas or power, or other public service. It is a misdemeanor if the actor purposefully causes pecuniary loss in excess of $100, or a petty misdemeanor if he purposely or recklessly causes pecuniary loss in excess of $25. Otherwise criminal mischief is a violation. VI Robbery MPC 222.1 Robbery (1) Robbery Defined. A person is guilty of robbery if, in the course of committing a theft, he: (a) inflicts serious bodily upon another; or (b) threatens another with or purposely puts him in fear of immediate serious bodily injury; or (c) commits or threatens immediately to commit any felony of the first or second degree. An act shall be deemed in the course of committing a theft if it occurs in an attempt to commit theft or in flight after the attempt or commission. (2) Grading. Robbery is a felony of the second degree, except that it is a felony of the first degree if in the course of committing the theft the actor attempts to kill anyone, or purposely inflicts or attempts to inflict serious bodily injury. Robbery in simply terms i. ii. The taking With intent to steal

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iii. iv. v. vi.

The personal property of another From his person or in his presence Against his will By violence or intimidation

The rule is if a person uses force to succeed in a larceny, it relates back to the act of stealing and the larceny becomes a robbery o If the person has not yet left the store where he robs someone, he has not completed the crime o If they run someone over while fleeing, you can argue for felony murder because the flight from the felony is still part of the felony Burglary i. Common law elements 1. Breaking and entering of 2. A dwelling, bldg., or occupied structure of another 3. In the nighttime with (only in some jurisdictions) 4. Intent to commit a felony therein specific intent needed, unless the premises are at the time open to the public or the actor is licensed or privileged to enter. i. Affirmitive defense if the bkdg. was abandoned Grading: Burglary is a felony of the second degree if it is perpetrated in the dwelling of another at night, or if in the course of committing the offense, the actor: 1. Purposely, knowingly, or recklessly inflicts, or attempts to inflict bodily injury on anyone; or 2. Is armed w/ explosives or a deadly weapon. Really two crimes in one 1. Entering 2. Committing the crime You dont actually have to break something just use physical effort. The breaking could be either actual or constructive. 1. Actual Breaking- involves the application of physical force, however slight, to effectuate the entry.

ii.

iii.

iv.

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v. vi. vii.

2. Constructive Breaking- occurs when entry is gained by threats, fraud, or conspiracy. Requires specific intent to commit a crime upon entry and that intent must be formed before the burglary in the course of committing an offense if it occurs in an attempt to commit the offense or in flight after the attempt or commission. Mulitiple convictions a person may not be convicted bothe for the burglary and for the offense which it was his purpose to commit after the burglarious entry or for an attempt to commit that offense, unless the additional offense constitutes a felony of the first or second degree.

Shortened version of burglary One who enters @ night any house, room, apartment, store, or other building, w/ intent to commit larceny or any felony is guilty of burglary. -occupants cannot be guilty of burglary, even if the occupant forms that intent to commit the crime. Former occupants may be guilty of burglary. MPC 221.0 Definitions (1) occupied structure means any structure, vehicle or place adapted for overnight accommodations of persons, or for carrying on business therein, whether or not a person is actually present. (2) night means the period between thirty minutes past sunset and thirty minutes before sunrise. Arson (1) a person is guilty of arson, a felony of the second degree, if he starts a fire or causes an explosion w/ the purpose of: (a) destroying a building or occupied structure of another; or (b) destroying or damaging any property, whether his own or anothers, to collect insurance for such loss. It shall be an affirmative defense to prosecution under this paragraph that the actors conduct did not recklessly endanger any

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building or occupied structure of another or place any other person in danger of death or bodily injury. (4) definitions: occupied structure means any structure, vehicle or place adapted for overnight accommodations of persons, or for carrying on business therein, whether or not a person is actually present. Property of another, for the purpose of this section, if anyone other than the actor has a possessory interest therein. If a building or structure is divided into separately occupied units, any unit not occupied by the actor is an occupied structure of another. MPC 212.1 Kidnapping A person is guilty of kidnapping if he unlawfully removes another from his place of residence or business, or a substantial distance from the vicinity where he is found, or if he unlawfully confines another for a substantial period in a place of isolation, with any of the following purpose: (a) to hold for ransom or reward, or as a shield or hostage; or (b) to facilitate commission of any felony or flight thereafter; or (c) to inflict bodily injury on or to terrorize the victim or another; or (d) to interfere w/ the performance of any governmental or political function. VII State of Mind Less than General Intent: Strict Liability Not 5th category of culpability No intent required Only the act is sufficient for criminal liability. o Like speeding. Strict liability claims usually involve offenses endanger public health and safety. Illegal drug distribution, speeding, pollution, littering Only need the actus reas. Does not require mens rea. Strict liability means that criminal responsibility will be attached to certain conduct without requiring mens rea Strict liability crimes usually focus on actions that are a danger to the public welfare

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o A store owner cannot sell cigs without FDA approved wrappers because they may not contain the requisite warnings o Any conduct that a reasonable person should know is subject to stringent public regulation and may seriously threaten the communitys health or safety. If the statute doesnt have a mens rea requirement, is labeled a public welfare law or does not call for a severe punishment, it is a strict liability crime An exception to traditional criminal law usually punished by a fine Designed to protect large groups of people from sloppy or destructive behavior Violation an offense that you are convicted of the penalty is a fine or a fine and forfeiture or other civil penalty o MPC if the conviction does not carry a jail sentence it is a violation and does not require mens rea

Mistake is never a defense for strict liability crimes. VIII Ignorance or Mistake Mistake of Law being aware of all the facts and thinking something is within the rules; generally held not to excuse the commission of an offense, even though the defendant was unaware his action was prohibited. - Ignorance of the law is not a defense to mistake of law most of the time - Will only be a defense if either of these two things are met: o The legislature decides to make it a defense by statute o The law is so voluminous and complex that most people could not understand it even if they looked it up - Never a defense to strict liability crimes because there is no mens rea requirement Mistake of Fact ignorance or mistake as to a matter of fact, for which there is reasonable explanation or excuse; an honest mistake of fact negates criminal intent when the defendants acts would not constitute a crime.

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- An act committed or an omission made under a mistake of fact which nullifies the requisite intent as an element of the crime charged is a defense to that crime - Thus a person is not guilty of a crime if he commits an act or omits to act under an honest and reasonable belief in the existence of certain facts and circumstances which, if true, should make such act or omission lawful - If the mistake was honest but unreasonably held, it may be understood as constituting negligence. But if at least recklessness is required by the offense, this mistake is inconsistent w/ the state of mind which the prosecution must show existed. MPC 2.04 Ignorance or Mistake (1) Ignorance or mistake as to a matter of fact or law is a defense if: (a)The ignorance or mistake negates the intent required to establish a material element of the offense; or (b) The law provides that the state of mind established by such ignorance or mistake constitutes a defense (2) Although ignorance/mistake would be a defense, the defense is not available if the defendant would be guilty of another offense had the situation been as he supposed. In such a case, however, the ignorance/mistake of the defendant shall reduce the grade and degree of the offense of which he may be convicted to those of the offense of which he would be guilty had the situation been as he supposed. (3) A belief that conduct does not legally constitute an offense is a defense to a prosecution for that offense based upon such conduct when: (a) statue defining the offense is not known to the actor and has not been published or otherwise reasonably made available prior to the conduct alleged; or (b) he acts in a reasonable reliance upon an official statement of the law, afterward determined to be invalid or erroneous, contained in (i) a statute, (ii) a judicial decision, (iii) adminisatrative order or grant of permission, or (iv) an official interp. Of the public officer or body charged by law.

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(4) defendant must prove a defense arising under subsection 3 by a preponderance of the evidence. - Reasonableness is required Common law general intent crime? - The mistake had to be reasonable to be a defense to a general intent crime Common law specific intent crime? - An unreasonable belief is a valid defense to a specific intent crime For a mistake question ask yourself: - What was wrong, what was the wrong thing in Ds head? o If he was wrong about events, facts, circumstances mistake of fact o If he was wrong about rights, rules, laws, interpretation/application of laws mistake of law o Mistake can only be a defense if it negates a required mens rea MPC 2.08 Intoxication (1) Except as provided in subsection 4 of this section, intoxication of the actor is not a defense unless it negatives an element of the offense. (2) When recklessness establishes an element of the offense, if the actor, due to self-induced intoxication, is unaware of a risk of which he would have been aware had he been sober, such unawareness is immaterial. (3) Intoxication does not, in itself, constitute mental disease within the meaning of section 4.01 (providing for the defense of insanity). (4) Intoxication which (a) is not self induced or (b) is pathological (pertaining to disease) is an affirmative defense if by reason of such intoxication the actor at the time of his conduct lacks substantial capacity either to appreciate its criminality (wrongfulness) or to conform his conduct to the requirements of law. (5) Definitions

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(a) Intoxication means a disturbance of mental or physical capacities resulting from the introduction of substances into the body; (b) Self induced intoxication means intoxication caused by substances which the actor knowingly introduces into his body, the tendency of which to cause intoxication he knows or ought to know, unless he introduces them pursuant to medical advice or under such circumstances as would afford a defense to a charge of crime; (c) Pathological intoxication means intoxication grossly excessive in degree, given the amount of the intoxicant, to which the actor does not know he is susceptible. Malice Aforethought Is the intention to kill, actual or implied, under circumstances which do not constitute excuse or justification or mitigate the degree of the offense to manslaughter. The intent to kill may be implied where the actor actually intends to inflict great bodily harm or the natural tendency of his behavior is to cause death or great bodily harm. Felony murder is a example of implied intent or implied malice aforethought. The killing may be murder even though the actor harbored no hatred or ill will against the victim and even though he acted on the spur of the moment. VIIII Homicide MPC 210 Definitions (1) human being- means a person who has been born and is alive. (2) bodily injury-means a physical pain, illness or any impairment of physical condition; (3) serious bodily injury- means bodily injury which creates a substantial risk of death or which causes serious, permanent disfigurement, or protracted loss or impairment of the function of any bodily member or organ;

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(4) deadly weapon-menas any firearm, or other weapon, device, instruemtn, material or substance, whether animate or inanimate, which in the manner it is used or is intended to be used is known to be capable of producing death or serious bodily injury. a. An unlawful killing of a human being 1) Murder an unlawful killing done with malice aforethought 2) Manslaughter an unlawful killing that is not done with malice aforethought b. Most homicides are a voluntary act that end up causing or resulting in the death of a person, with some type of mens rea attached c. The degree will depend on the mens rea MPC 210.2 Murder (1) except as provided in section 210.3, criminal homicide constitutes murder when: (a) it is committed purposely or knowingly; or (b) it is committed recklessly under circumstances manifesting extreme indifference to the value of human life. Such recklessness and indifference are presumed if the actor is engaged or is an accomplice in the commission of, or an attempt to commit, or flight after committing or attempting to commit reobbery, rape or deviate sexual intercourse by force or threat of force, arson, burglary, kidnapping or felonious escape. (2) murder is a felony of the first degree and mad be sentenced to death. d. First Degree Murder 1) Premeditateda determination to kill, distinctly formed in the mind at any moment before or at the time of the killing. There cannot be premeditation when an act is done in the instant effect of a sudden quarrel or heat of passion. Proff of actual reflection is not required. 2) Willful, deliberate, and premeditated purposely killing while fully appreciating the significance of your actions and thinking about them beforehand a. Killing in cold blood

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b. Felony murder as specified by statute c. Killing by poison or lying in wait 3) Requires the specific intent to kill 4) Evidence to support premeditation a. Evidence of planning activity b. Evidence of prior relationship between killer and victim (motive) c. Evidence of method (does it seem planned) 5) CA penal code a. Murder is the unlawful killing of a human being, or a fetus, with malice aforethought b. A person is guilty of criminal homicide if he purposely, knowingly, recklessly, or negligently causes the death of another human being i. Murder, manslaughter or negligent homicide e. Second Degree Murder 1) Any intentional killing other than first degree murder or voluntary manslaughter or 2) Intentionally causing serious bodily injury but where death, though never intended, results; or 3) Felony murder if not raised to first degree by statute 4) Depraved Heart Murder a. Special kind of extremely reckless killing that exhibits indifference to the value of human life b. Involves a conscious disregard of a substantial and unjustifiable risk and a gross deviation from the standard of care which manifests an extreme indifference to human life c. Intoxication is not a defense because specific intent is not required f. Manslaughter 1) Voluntary a. A killing that would otherwise be murder but that is mitigated to manslaughter because it was done upon being reasonably provoked into a sudden heat of passion without cooling off where a reasonable person would not have cooled off b. Elements: i. Mental state that would ordinarily qualify as murder (Ex. A purposeful killing)

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2)

ii. When the defendant has been provoked by the victim into the heat of passion iii. A reasonable person would have been so provoked iv. The defendant has not cooled off by the time of the killing v. A reasonable person would not have cooled off c. Imperfect self-defense d. Provocation may be by words that are informative e. There is a distinction between words that are insulting and words that are informative i. Informing someone that you are having an affair with his spouse would likely meet the provocation requirement ii. Insults are not enough iii. If the information words are clearly untrue or should not provoke a reasonable person they will not be held to be sufficient provocation f. Common law would only allow an adequate provocation defense if there was an aggravated assault and battery, mutual combat, commission of a serious crime against a close relative of the D, illegal arrest, or observation by a husband of his wife committing adultery Involuntary a. Reckless killing, criminally negligent killing, a killing done with ordinary tort negligence or misdemeanor manslaughter b. Conscious disregard of a substantial and unjustifiable risk that is a gross deviation of the standard of conduct that a law abiding person would observe in the actors situation c. In the commission of an unlawful act, not amounting to felony; or in the commission of a lawful act which might produce death, in an unlawful manner, or without due caution and circumspection. d. Vehicular homicides e. Extreme Emotional Disturbance could be proven solely by evidence of diminished responsibility, e.g. mental disorder. Two elements (1) the defendant committed the offense under the influence of extreme emotional disturbance; and (2) there was a reasonable explanation or excuse for the defendants extreme disturbance. An extreme emotional disturbance is one where self-control and reason are

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overborne by intense feelings such as passion, anger, distress, grief, excessive agitation or other similar emotions. MPC 210.3 Manslaughter (1) criminal homicide constitutes manslaughter when: (a) it is committed recklessly; or (b) a homicide which would otherwise be murder is committed under influence of extreme mental or emotional disturbance for which there is reasonable explanation or excuse. The reasonableness of such explanation or excuse shall be determined from the viewpoint of a person in the actors situation under the circumstances as he believes them to be. (2) manslaughter is a felony of the second degree. g. Negligent Homicide 1) Should be aware of a substantial and unjustifiable risk and your conduct is a gross deviation from the standard of conduct that a law abiding person would observe 2) The difference between this and involuntary manslaughter is the subjective (conscious disregard) versus purely objective (should be aware) 3) Criminal homicide constitutes negligent homicide when it is committed negligently 4) Negligent homicide is a felony of the third degree h. Felony Murder 1) Felony + death = felony murder 2) Need predicate felony 3) Why do we have felony murder rule? a. Deterrence b. Retribution when someone dies in the course of a felony, the felony has caused that much more harm to society and the punishment for the specific felony just is not enough 4) Why do we have felony murder for co-felons? a. Deter people from committing felonies in the first place

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Under this rule, an unintended homicide becomes the equivalent of first degree murder under such circumstances if the felon is proved to have committed the homicide. i. Misdemeanor Manslaughter 1) Most states permit a prosecution for manslaughter rather than murder when the death occurs during the commission of an offense that is a misdemeanor rather than a felony 2) This is also referred to as unlawful act manslaughter because this rule also extends to petty offenses/infractions that do not rise to the level of manslaughter j. Model Penal Code 1) Criminal homicide constitutes manslaughter when a. It is committed recklessly; or b. A homicide which would otherwise be murder is committed under the influence of extreme mental or emotional disturbance for which there is reasonable explanation or excuse i. The reasonableness of such explanation or excuse shall be determined from the viewpoint of a person in the actors situation under the circumstances as he believes them to be ii. Manslaughter is a felony of the second degree Second part of MPC is the same as the first part of CPC the second part of CPC is the same as the first part of MPC Agency Approach (Majority Rule) The felony murder doctrine does not apply if the person who directly causes the death is a non-felon. Proximate Cause Approach (Minority Rule) A felon may be held responsible under the felony murder rule for a killing committed by a non-felon if the felon set in motion the acts which resulted in the victims death. i.e. if an act by one felon is the proximate cause of the homicidal conduct by (the non-felon) or police officer, murder liability is permitted. Cause in Fact (But for Cause)

5)

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The harm would not have occurred but for the defendants actions. Substantial factors Test Two but for causes, each alone are sufficient to bring about the harmful result, operate together to cause the harm. E.g. a stabs B inflicting a fatal wound, while at the same time, X, acting independently, shots B in the head. B dies from the combination of both acts. A has caused Bs death. Natural & Probable Consequence Doctrine When the defendant set in motion a chain of events. Note: can always argue natural & probable consequences in each criminal case b/c its based on the chain of events. Intervening & Superseding Causes Intervening cause: must have intervended in the events after defendants action; applies to both. Agency must not have been intended by, foreseen by, or foreseeable to the defendant. MPC 2.03 Causal Relationship between Conduct & Result (pg 558) (1) conduct is the cause of a result when: (a) it is an antencedent but for which result in question would not have occurred; and (b) the relationship between the conduct and result satisfies any additional causal requirements imposed by the Code or by the law defining the offense (2) when purposely or knowingly causing a particular result is an element of an offense, the elements is not established if the actual result is not within the purpose or the contemplation of the actor unless: (a) the actual result differs from that designed or contemplated, as the case may be, only in the respect that a different person or different property is injured or affected or that the injury or harm designed or contemplated would have been more serious or more extensive than that caused; or

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(b) the actual result involves the same kind of injury or harm as that designed or contemplated and is not too remote or accidental in its occurrence to have a just bearing on the actors liability or on the gravity of his offense. (3) . . . . k. Sexual Offenses

Mich. Stat. (pg. 580) Sexual conduct: l. INCHOATE CRIMES

attempt: pg 639 impossibility: pg conspiracy: pg 685 incapacity, immunity of party to solicitation or conspiracy: pg 686 Complicity Pg 697 Aider & Abettor pg 691Pinkerton rule pg 722