Criminal Law Outline

Professor Baker

Melissa Gott Fall 2000

JOHN LOCKES TREATISES OF GOVERNMENT Four main principles: 1) Law - vehicle created and administered by a commonwealth or society - regulate itself through statutes - achieves common good Criminal Law - subset of general law by which for purposes of preventing harm declares what conduct violates and defines corrective measures 2) Underlying assumptions of American criminal law - fundamental corollaries - build regime of criminal law to protect corollaries (1) significance of life - sacred: to be protected from death by statutes for murder and abortion - fragile: to be protected from harm/injury by statutes for assault and battery - private: to be protected from encroachment by statutes for rape and incest - free: to be protected from confinement by statutes for kidnaping and false imprisonment (2) value of property valuable: to be protected from destruction by statutes for arson, mischief, and larceny - personal: to be protected from loss by statutes for embezzlement (3) centrality of society - intimate: to be protected from invasion by statutes for riot - protective: to be protected from disorder by statutes for breach of peace 3) Crime against society - not against individual - offense to society that is punishable 4) Crime is inevitably associated with punishment - an impingement on freedom because chose to live outside bounds (of money, of mobility, of life) - unless punishment directly associated with statute, it is not technically a crime, e.g. fine, imprisonment, and death - punishments goal is to deter, reform, retribution, prevention, restoration, and public education - believed in the State of Nature which was a State of Absolute Freedom governed by the Law of Nature - thought it was important to organize society - exchanging freedom for protection, a social K; but trying to keep as much freedom as possible - want personal freedom to do what you want Purposes of Criminal Law (1) punish - primary purpose of the criminal law

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- death penalty, incarceration, fines, and other forms of behavioral limitations on work and association - Ds payment to society for criminal activity - punishment creates a greater good compared to a lack of punishment - someone who commits a crime deserves to be punished, regardless of whether that result leads to a greater good - misdemeanors are punishable by a year or less in the county jail - felonies are more serious crimes punishable for a year or more in prison (2) deterrence - promote a minimum level of acceptable behavior - protect society from harmful conduct and dangerous people - harmful conduct includes conduct that harms society as a whole - does not necessarily mean physical injury to a particular person or persons - conduct that undermines society's moral standards may be criminalized - 2 types: (1) deterring the individual who committed the crime by removing that person from society (2) deterrence of the general public

(3) rehabilitation (4) promote a safer society Forms of Criminal Law Two Types (1) common law - American law has a common law, judge-made origin (2) statutory law - in almost all states, criminal laws come from statutes - judiciary interprets statutes and measures constitutionality - Model Penal Code - code created by a group of law professors, judges, and lawyers - not law ELEMENTS OF A CRIME 1) actus reus: voluntary action or omission 2) mens rea: intent 3) concurrence of 1 & 2 4) particular harm 5) causation 6) special circumstances 2.01 The fundamental predicate for all criminal liability is that the guilt of D be based upon conduct and that the conduct be voluntary; liability cannot be based upon mere thoughts, upon physical conditions, or upon involuntary movements

MENS REA

- guilty mind - intent - mens rea defense: I didnt mean to do it - there are limits on transferred intent - maybe from one individual to another

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 2.02 1) Purposely - conscious and formed object and intent; specific informed goal 2) Knowingly - practical certainty of outcome of particular actions that strongly indicates purpose 3) Recklessly - fully conscious mind as to risk associated with action - risk, understood subjectively, is severe - willful and wanton disregard for that outcome 4) Negligence - subjective awareness of danger association with particular action - not concerned with severity of negligence - decision in face of potential harms, amounts to gross deviation from the standard of care of TARP - not a defense that individual did not desire result 1 & 2 - specific intent 3 & 4 - intent substitutes: deriving mind from conduct, etc. - if inherently evil, evidence of intent to do evil action where objectively evil, supplies necessary mens rea even if you can subjectively establish you have no evil intent GENERAL INTENT: guilty mind not necessary - ex: rape - dont care want D thought SPECIFIC INTENT: particular intent as set in statutes: willful, wanton, etc.

ACTUS REUS
- most crimes require the concurrence of mens rea and actus reus - fundamental to the crime - actus reus defense: I didnt do it - voluntary wrong act - sometimes speech sufficient (perjury) - series of acts (burglary) - act of possession (drugs) - an omission of duty - failure to act - the duty neglected must be a legal duty, and not a mere moral obligation - must be a duty imposed by law or by contract, and the omission to perform the duty must be the reason and direct cause of death. Duty to Act Based on: (1) statutory (2) relationship (mother to child) (3) contract (4) voluntarily assumed and secluded the helpless person as to prevent others from rendering aid LIABILITY WITHOUT FAULT: Strict Liability Offenses (SLO) - mens rea is not needed; only actus reus needed (1) some crimes require subjective intent - knowing (2) some require objective intent - e.g. receiving stolen goods under reasonable suspicion
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- not actual knowledge but TARP would know (3) commission of actus reus - e.g., being in possession itself is the crime - liability w/o fault - strict commission of the act itself makes guilty - Locke would like b/c for common good, so take away a little personal freedom - punishment cannot be disproportionate to the crime - statute rarely says strict liability but implies because leaves out words of mens rea like knowledge Reason for Strict Liability - deterrence - public policy of societys protection of individual - simplifies procedure because sometimes hard to read mind - judicial restraint: just enforcing the statute Statutory Rape - SLO - each states age of consent is different - most of the time it is a sex specific statute Vicarious Liability - no actus reus nor mens rea needed - liability for the actions of another MISTAKE OF FACT - has to be reasonable - honest belief - where purpose or knowledge is required for a crime, even an unreasonable mistake will be excused - acting on a mistaken fact - looked like my umbrella MISTAKE OF LAW - defense - ignorance is not a defense - mala prohibita: if violated ==> guilty - act prohibited must be intentionally done - fundamental misunderstanding of law of statute - e.g., not knowing law existed - have to have honest belief that law supported action - self-help is most sympathetically looked at - e.g. to fulfill a debt, I took umbrella - the law does not apply to particular facts - reason: hard to get into head of D (mens rea) - D must have had some sort of notice 2.04 - a belief that conduct does not legally constitute an offense is a defense when (b) party acts in reasonable reliance upon an official statement of the law, afterward determined to be invalid or erroneous

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CAUSATION
- element of an offense - most often occurs in homicide cases - whether given Ds culpability and the manner in which the death occurred is it fair to hold D criminally liable ELEMENTS: (1) action of D is cause in fact of the result or harm - harm would not have occurred but for action of D - actus reus - was it a substantial factor to resulting harm - was action the cause of the harm (2) establish that act was proximate cause of result - mens rea - variation between intent and result - where intended action varies so greatly from result to impune justice - look at variance between: 1) person harmed and person intended to harm - A shoots to kill B but hits and kills C - A intends to shot B but misses B and bullet pierces car and kills C who is in the car----large variance, so not first degree murder (had A known C was there, probably convict) 2) intended and actual harm - need extraordinary circumstances to excuse liability Third Party Intervener Rule - D commits act with intent to kill and death ensues even though death caused by negligence of a third party, D is still guilty of the crime - A shoots B but Cs lack of medical care causes death; A is still guilty - EXCEPTION: gross negligence on part of the third party Forms of crimes: 1) crimes which only require actus reus and mens rea - no particular result needed; regardless of result - e.g., perjury (no one has to believe) & forgery 2) crimes which specify a particular result - e.g., homicide ==> death - necessary to establish that action (& mens rea) caused the harm

EXAMPLES: 1) A intends to shoot B in the heart but shoots B in the arm; B lives. - not murder bc no death; need specific result 2) A intends to shoot B in heart but hits B in head. - variation between intent and action but not extraordinary enough to excuse murder 3) A shoots at B, & B jumps into a stream & drowns. - not extraordinary enough: murder. 4) A shoots to kill B; B is injured. B put in ambulance which crashes & kills B. Murder? - cause in fact but variance probably too large 5) A shoots to kill B; B gets to hospital and released. B distraught and kills himself. - probably not murder - cause in fact but not proximate cause: variance too large
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INTENTIONAL KILLINGS - an intervening cause completely unrelated to the acts of D does relieve a D of criminal liability - when criminal acts of D have contributed to victims death, D may be found guilty of murder - D takes victim as he finds them UNINTENTIONAL KILLINGS reckless - requires awareness and conscious disregard of a substantial and unjustifiable risk that such result will occur or that such circumstance exists - victims own unlawful conduct does not absolve D from guilt - proximate cause is based on the concept of foreseeability coupled with recklessness - cause in fact because of zone of danger; but for Ds actions, result would not have occurred - sine qua non test: but for Ds conduct, the harm or damage would not have occurred - look to see if Ds actions substantially contributed to harm - some actions inherently dangerous, e.g. drag racing

BURDEN OF PROOF AND PRESUMPTIONS

BURDEN OF PROOF - tells who is responsible for establishing the elements of a crime Why is it necessary to establish who has to prove what? 1) community respect 2) protection of liberty is essential; Locke said liberty very important 3) civil v. criminal -- in civil, it is only money; in criminal, it is ones liberty and sometimes life - Due Process Clause protects the accused against conviction except upon proof beyond a reasonable doubt (brd) of every fact necessary to constitute the crime with which he is charged - brd and necessary are the words that cause all the issues Beyond a Reasonable Doubt (brd) - moral certainty is ok, but not perfect - MPC does not define because of difficulty of defining - N.C. has pattern jury instructions - beyond a reasonable doubt In re Winship Reasonable Doubt - a doubt that would cause a reasonable person to hesitate to act Example: (1) Arkansas adopts a law permitting juveniles to be adjudicated delinquent based on a preponderance of the evidence standard. Is the Arkansas law constitutional? - No. While a juvenile delinquency adjudication is labeled civil, it is so functionally similar to a criminal case that the beyond a reasonable doubt safeguard is required in such proceedings as well. Calling such a proceeding civil is merely a label of convenience and should not be permitted to mask the functional similarities to criminal cases. Shifting the Burden
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- shift the burden of proof to D:D has to prove he didnt mean to do something rather than the state having to prove D did or meant to do something Presumptions - cannot totally shift burden to D; based upon statute - make proof of physical fact brd, there is presumptive evidence of mental fact to convict - D has to rebut the presumed mental element Example: knowingly receiving stolen property: proof of possession with fact that property was stolen leads to a presumption that D knew the goods were stolen Two Types: 1) Permissible - jury allowed but not required to presume 2) Mandatory - proof of required fact requires jury to assume mental element (mens rea)

CRIMES AGAINST PERSONS

- free to do what we want within the Law of Nature - criminal law 1) orders public life 2) sets boundaries 3) for public good and protection of integrity of individual person

HOMICIDE
Definition: death of human being cause by another Examples - murder, manslaughter Two types of Homicide: (1) murder (2) manslaughter (a) voluntary - intentional killing in heat of passion (b) involuntary - accidental killing

Conceptually:

(1) Innocent - accidental or justified homicide (2) Culpable - criminal homicide (a) intentional killings (i) murder (b) unintentional killings (i) felony murder - death occurs during specific named felony (ii) depraved heart murder - driving car into group of people - reckless indifference

Premeditation - deliberate formation of and reflection upon the intent to take a human life - involves the mental process of thinking beforehand, deliberation, reflection, weighing or reasoning for a period of time, however short - must involve more than a moment in point of time - having the opportunity to deliberate is not evidence D did deliberate - some specific cases assume premeditation: poisoning, bombing, etc.

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(1) MURDER - intentional or unintentional killing of another - statutory crime - culpable homicide Elements: (1) actus reus - an affirmative act (2) mens rea - malicious state of mind (a) intent to kill OR (b) intent to do serious bodily harm which death would reasonably ensue OR (c) depraved heart - wilful and wanton disregard for human life OR (d) intent to commit a felony - when someone dies during the commission of specific felonies (3) concurrence (4) death -Year and a Day Rule: death must occur within a year and a day to be convicted of murder (5) causation (1) First degree - intent to kill accompanied by premeditation, deliberation, and malice - felony murders (2) Second degree - all other malicious killings not statutorily defined as manslaughter - unpremeditated, intentional killings - felony murders that do not fall within named felonies Continuum <===========================================================================> Murder one Murder two [Voluntary Manslaughter] - intentional killing with malice without deliberation and premeditation ordinary negligence criminal negligence (involuntary manslaughter) <==================================================================> TARP GROSS WILFUL & NEGLIGENCE WANTON Wilful and Wanton - even if unintentional, law will treat as intentional and charge with murder two (not murder one because no premeditation and deliberation) - hint of viciousness Examples: (1) Driving on slick road. TARP would drive slowly. D didnt slow down but maintained speed. Tries to stop but skids into rear end of another car. Air bag deploys in other car and killed child. - deviation: ordinary negligence (2) D speeds up. - deviation: probably gross/criminal negligence
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Severity

(3) Dry road. D is mad and floors accelerator. D doesnt care about anything. - deviation: wilful and wanton (4) Driving; late for class. Slow poke in front of you. You try to pass but accident. - deviation: gross because not safe passage and no right to be in other lane (5) Standing in field. See a train in the distance. Try to shoot a window out. - deviation: wilful and wanton (a) First Degree Murder Elements: (1) intent (2) malice (3) premeditation and deliberation Penalties: life in prison or death Three Categories of First Degree Murder: (1) intentional killing deriving from premeditation and deliberation (2) felony murder (3) specific statutory cases - statute implies premeditation and deliberation - particular circumstances - e.g., lying in wait for someone, torture, bombing, poisoning, more than 1 person killed (mass murder), or killing by previously convicted murderer (1) Felony Murder Common Law - any death with any felony was murder Modern Law - look at each states statute which generally restricts common law - malice - constructed from actions - imagined or implied by the state - cannot find malice from the intent to commit the underlying felony alone - courts are very weary of applying - where the death was purely accidental, application of the doctrine is unjust and should be precluded Merger Doctrine - intent to commit felony and murder are so connected that they merge and become inseparable and thus cannot be charged out as separate crimes Elements: (1) actus reus - commission of inherently dangerous felonies - objective standard Examples: arson burglary kidnapping rape robbery (2) mens rea - specific intent to do the underlying felony (3) death during the commission of the felony (4) concurrence
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- res gestae: need a significant link between the events Factors to determine concurrence: (1) Homicide or felony occurred at the same location (2) Distance separating felony and killing (3) Time between the felony and killing (4) D in possession of fruits of felony (5) Killing in close pursuit or after D got to safe haven Example: (1) A robs a bank. B, an accountant unaware of the robbery, dies of a heart attack. - no causal connection (2) A convicted of robbery and on the way out of courtroom, B taunts A, and A kills B. - causal break; no concurrence between commission of felony (robbery) and killing (b) Second Degree Murder - everything that is not first degree murder or voluntary manslaughter (1) Depraved Heart Murder - requires malice aforethought - gross negligence with a hint of viciousness; disregard - not required to have a specific intent to kill a particular person - if inherently dangerous and known to TARP, law will impute malice and construct or imply intent (2) MANSLAUGHTER Premeditated Murder =========== Manslaughter ================ Justifiable Killings (a) Voluntary Manslaughter - unlawful and intentional killing without malice - murder sometimes reduced to voluntary manslaughter ELEMENTS: (1) actus reus (2) mens rea - reasonable and legally sufficient provocation - reasonable and actual heat of passion (3) concurrence (4) death - inciting D to subjectively experienced heat of passion sufficient to differentiate from premeditation Legally Sufficient Provocation: (1) mutual combat (2) illegal arrest (3) injury or serious abuse of close relative (4) sudden discovery of spouses adultery (5) extreme assault or battery (6) imperfect self defense (7) imperfect prevention of a felony - steps in to try to prevent felony (i.e. rape)
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(8) words with threat of physical harm - words can constitute adequate provocation if they are accompanied by conduct indicating present intention and ability to cause D bodily harm Categories Provocation: (1) adequate provocation - TEST: calculated to inflame the passion of a reasonable man and tend to cause D to act for the moment from passion rather than reason; TARP - objective (2) heat of passion (3) sudden heat of passion - killing must occur prior to a reasonable opportunity for the passion to cool (4) causal connection between the provocation, the passion, and the fatal act (b) Involuntary Manslaughter - unintentional killing without malice - short of wanton and willful disregard for human life - mens rea implied from recklessness Three Categories: (1) criminal negligence - gross negligence (2) misdemeanor manslaughter - inherently dangerous misdemeanor leads to death (3) vehicular homicide Look at: (1) extent of Ds awareness of the homicidal risk he has created (2) magnitude of the risk (3) number of people subjected to the risk (4) reasons for taking the risk

NOT ON THE EXAM

CAPITAL PUNISHMENT
- Supreme Court held that it was arbitrary and hence unconstitutional; states can decide in their own state - Texas and Florida have most - Wisconsins last was in 1853 - attacked via due process, the 8th and 14th Amendments - states have taken two approaches: (1) Adopt MPC listing of aggravating and mitigating circumstances, permitting capital punishment only when the aggravating circumstances outweighed the mitigating ones (2) Mandatory in certain types of cases, e.g. first degree murder - still can introduce mitigating circumstances - if the state chooses to permit the admission of victim impact evidence and prosecutorial argument on that subject the 8th Amendment erects no per se bar - if D wants to challenge the admission of some evidence, he can do so under the Due Process Clause of the 14th Amendment
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Pros deterrence punishment restitution precedent

Cons systematic injustice cruel and unusual punishment cost arbitrary

BATTERY, ASSAULT, and KIDNAPING

- integrity of the person is very important to the State of Nature (1) BATTERY - many batteries include assaults, but every assault does not include a battery - unlawful application of force to the body of another - at common law, any touching was a battery MPC - bodily injury - does have an individual category for battery and just combines with assault Elements: (1) actus reus - unlawful contact - touching may be directly or indirectly applied - force can be by words - telling a blind person to walk over a cliff (2) mens rea (a) specific intent to injure (b) criminal negligence (c) injury that results from an unlawful act - transferred intent applies - intent actually transferred to another person (3) concurrence (4) causation (5) injury - results crime

Simple Battery - misdemeanor Aggravated: (1) use of a deadly weapon (2) status of injured party - police officer, government officials, teachers, correction officers, witnesses (3) extent of injuries (2) ASSAULT Common Law - attempted (failed) battery - victim does not have to be aware of assault Elements: (1) actus reus (2) mens rea - specific intent to injure
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(3) concurrence - substantial step (4) causation Examples: (1) A points a gun at Bs back and shots, missing B - A guilt of assault Expanded Common Law - putting another in fear - victim must be aware of contact and placed in reasonable apprehension Elements: (1) actus reus (2) mens rea - specific intent to injure (3) victim in fear - subjective AND - TARP Examples: (1) A is driving a car with the intent of hitting B. Just short of hitting B, A stops the car. - assault (2) A loses control of the car and is finally able to stop the car just inches from B. - no intent (3) A loses control of the car and is finally able to stop the car just inches from B. B is deaf. - no TARP MPC - combines battery and assault into assault - distinguishes gradations of offense based on level of injury Simple Assault - bodily injury and fear of serious bodily injury; misdemeanor Aggravated Assault - serious bodily injury; felony (3) KIDNAPING Elements: (1) unlawfully confine, restrain, or remove (2) from one place to another (3) person 16 years of age or over, AND (4) without consent - statutory offense - unlawful movement - consent to movement is not sufficient to justify (come little kid for a piece of candy) (4) FALSE IMPRISONMENT - unlawful confinement or detention against persons consent - do not have to be restricted to place (false imprisonment in a moving car) - do not need physical confinement; words are sufficient - stay where you are, or I will shoot you
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- assertion of unlawful authority + submission by the victim - must be without legal justification - need specific intent crime to confine and move Elements: (1) actus reus - unlawful confinement (2) mens rea - specific intent

RAPE
- unlawful sexual intercourse with a woman against her will (without consent) with force or immediate threat of force - slightest penetration is rape Common Law - husband could not be convicted of raping his wife (marital exception) - some jurisdictions still have - have provided some exceptions such as those who are legally separated - those 14 & under could not rape because they were physically incapable - most jurisdictions have changed to 7 with 7-14 being rebuttable - homosexuality or oral contact was not rape - woman could not rape MPC - men could only rape - degrees - marital exception ELEMENTS: (1) actus reus - sexual intercourse with a woman (2) mens rea - not specific intent - general intent is all that is necessary - reasonable person would not have believed that woman consented - not subjective belief of D - evidence of lack of consent: force or threat of violence resistance - consent by victim measured by objective standard - shows non-consent - conduct can convey or imply a threat CONSENT - what was the communication to the perpetrator - state must establish - consent can be withdrawn at anytime - affirmative consent not required to avoid rape Nonconsensual: (1) force - rape (2) coercion (a) innocent - non-culpable - whining and pouting
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- persistence - If you love me... - not rape (b) nefarious - If you dont, Ill..... - rape Analysis force ==> yes ==> rape force ==> no ==> threat of force ==> yes ==> rape force ==> no ==> threat of force ==> no ==> resistance ==> yes ==> non-consent force ==> no ==> threat of force ==> no ==> resistance ==> no ==> very hard to decide Affirmative Consent is treated as rape when... (1) insensibility - drugs, alcohol - Ds state of intoxication has nothing to do with anything (2) imposter fraud in fact - rape - not aware of what is actually happening fraud in the inducement - consent by mistake - not rape (3) infancy - statutory rape (4) mental incompetency - incapable of giving legally valid consent Legislative Concerns (1) lack of consent (2) modern realities of threats (3) ignores battery - enacted Rape Shield Law to help protect victims - trying to get away from resistance tests and consent discussion - classifying as: (1) Indecent Assault - indecent sexual exposure - no consent - separates force element - sets up tiers (N.C. has 8) (2) Aggravated Battery - actus reus - unlawful contract - mens rea - looking at mind of D - rape is just a specific battery - consent not addressed after determine that unlawful contact

CRIMES AGAINST PROPERTY

THEFT
(1) Larceny ELEMENTS (1) actus reus
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- trespassory - trespassory taking of the good - must take against the will and consent of the owner - fraudulent conversion of the property - taking AND - carry away - of personal property - of another (2) mens rea - intent to steal or deprive owner of property TAKING - securing dominion - reducing to personal control - at common law, if property chained down, not larceny - take by agency: A sells Bs bike to C. A is guilt of larceny: As intent + Cs taking = A guilty - C is As agent - C has no mens rea, so not guilty CARRYING AWAY - asportation - property being carried away - some movement of property (any amount of movement) PROPERTY - at common law, personal property; severed realty: trees - anything of value OF ANOTHER - wild animals are not owned MENS REA - what was in Ds mind Examples: (1) A sells property to B, but A fails to deliver the property to B. - not larceny because not trespassory (2) A delivers property to B for B to repair; B then takes As property. - not larceny Common Law - known as the misappropriation of one persons property by another by means of taking from victims possession without consent - focused on maintaining the peace - not larceny if dont take from the physical possession of owner breaking the bulk - opening package and taking contents constructive possession - servant holding masters goods - master/servant - bailor/bailee - specific special relationship Mistaken Delivery: look at intent after acquiring knowledge that not yours Lost Property: liable if clearly belongs to someone else - trespassory taking and carrying away of the personal property of another with the intent to deprive the person
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entitled to possession - it is possible to steal ones own property if someone else has a lien on it - if one obtains property for a particular purpose and at the time he does so he has a fraudulent intent to use the possession as a means of converting the property to his own use and does covert it is larceny - a bona fide belief that one has a right or claim to the property negates felonious intent (2) Larceny by Trick - larceny in which the taker misleads (tricks) the rightful possessor by misrepresentation of fact into giving up possession of (but not title to) the goods - intention is the key - only applies to personal property - use a lie to obtain personal property Example (1) A rents a car intending to keep the car. - larceny (2) A rents a car intending to return; A fails to return - no larceny because no concurrence; possibly criminal conversion; not trespassory taking but trespassory conversion (3) I own this house. A sells to B; however, A does not own. - false pretenses (3) Robbery - felony regardless of amount taken - crime against person, but at the heart, goal is to obtain property - larceny with violence Defense: consent ELEMENTS: (1) larceny - trespassory - trespassory taking of the good - must take against the will/consent of the owner - fraudulent conversion of the property - taking AND - carry away - of anything of value (at cl, just personal property) - of another (2) mens rea - intent to steal (3) from person or immediate presence - movement of clothing; violence to clothing - at common law, could rob from dead - brooch or earring Example: (1) purse sitting beside and D says dont move - robbery because in presence of victim (2) Tell me where the property is or Ill shoot. 3 miles down the road. - robbery (4) force or threat of force from the person - what is the level of force necessary?
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- subjective standard: threat must induce victim to part with property - has to be more than natural force of taking: swinging arm, purse snatching, pick pocket - victim has to be aware - jostling or struggle ==> robbery - some resistance from clothes res gestae - steal tape player; leaving scene; victim walks up and D hits victim - statute expands and will classify as robbery; at common law, hard to determine (5) causation - results crime (6) concurrence - taking and violence must come together Aggravated by: (1) displaying something that is perceived to be a gun or a weapon - subjective belief (2) level of force used (3) other dangerous instrumentality MPC - in the course of committing theft, D inflicts or threatens immediate serious bodily harm == robbery - subjective standard LARCENY v. ROBBERY Robbery trespass - stricter than larceny - must be taken from person or presence mens rea - same as larceny - intent to steal (does not have to be permanent deprivation) - specific intent like larceny - can be defeated arguably if mistaken as to ownership or bona fide belief that had a right to property (4) Embezzlement - statutory crime - did not exist at common law - plugs holes in common law larcenys trespassory element Examples: (1) A breaks into marina; steals a boat. - larceny (2) Victim hires A to work on boat; A takes boat out and decides to keep. - not larceny because it is not trespassory - embezzlement (3) Victim voluntary gives a watch to A because of what A says. - A in lawful possession but then decides to keep it - embezzlement ELEMENTS: (1) fraudulent - illegitimacy and illegality
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- without cause, like mistaken claim to right (2) conversion - serious interference with rights of owner: selling, pledging, damages to goods (3) property - anything of value - not property of victim until actually receives property (4) of another - victim-property relationship is important - cannot convert own property (5) mens rea - specific intent to deprive owner - separate A from property (6) concurrence of actus reus and mens rea - specific intent crime - mistaken claim of right - not fraudulent taking, so not embezzlement - e.g. debt owed - makes concurrence a problem LARCENY v. EMBEZZLEMENT Trespassory Taking Larceny - requires trespassory taking Embezzlement - involves no taking at all and definitely not trespassory - D has lawful possession of property Mens Rea - animus furandi (with intent to steal) Larceny - clear concurrence of intent and taking Embezzlement - rare for concurrence Actus Reus Larceny - taking and carrying away (asportation) Embezzlement - conversion; taking control Found Property Larceny - if knows belongs to victim, and if intended to keep at time picked up, trespassory taking Embezzlement - if intended to return it at time picked up and then decided to keep it, not trespassory; in lawful possession at the time picked up because actually did intent to return it - concurrence when change mind and then conversion takes place - actus reus and mens rea LARCENY BY TRICK v. EMBEZZLEMENT Larceny by trick - intent to steal at the moment obtain possession of property Embezzlement - no intent at the time possession was acquired (5) Extortion ELEMENTS: (1) property - anything of value
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(2) by threat - not immediate physical violence - subjective belief of victim (3) communication of threat (4) understood by victim (5) mens rea - intent to get property not yours - little common law roots - statutory - related to robbery - imperfect robbery - larceny without violence or threat - not a results crime - not necessary for victim to turn over property - not as severe as robbery - truth of accusation is not a defense What if: - threat to another - not immediate harm - future harm - harm to reputation - not robbery because not immediate threat to person - extortion fills in gap (6) False Pretenses - statutory - fill in common law gaps - fraudulent or deceitful acquisition of both title and possession - must be corroborated - can provide the foundation of a civil action for deceit - applies just to real property (not personal property) ELEMENTS: (1) actus reus - false pretense or representation - must have materially influenced the owner to part with his property (2) mens rea - intent to obtain title - can be presumed based upon the facts (3) property of another - real property (4) actually defrauded - no one can be permitted to say, in respect to his own statements upon a material matter, that he did not expect to be believed Fraudulent: (1) story must be untrue (2) subjectively understood by D to be untrue (3) used by D to separate property from victim (4) victim must give up property (5) results crime - causation - misrepresentation must be cause in fact
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- established when D materially influences victim Promises of Future Performance - look at intent at time of promise - intent at the time the promise was made has to be fraudulent - Ill pay on Tuesday - where evidence shows brd that D intended to perform promise, etc., no false pretenses - subjective intent of D - where misrepresentation designed to get property when honestly think entitled to, no mens rea (7) Receiving Stolen Property Policy behind: (1) deter theft (2) prosecute beneficiary of crime - statutory crime - buy, have, or receive any goods, etc. which shall have been stolen or feloniously taken, knowing the same to have been stolen or feloniously taken ELEMENTS: (1) buy, have, or receive (2) actually stolen goods (3) knowledge that were stolen - knowledge is subjective - jury may infer from the circumstances (4) concurrence - did actus reus (receiving) and mens rea (knowledge) meet at the time of transfer (8) Burglary Common Law - breaking and entering of a dwelling at night - person cannot burglarize own home - a party who enters a public place with the intention to commit a felony enters without an invitation - North Carolina uses common law (1st degree) ELEMENTS: (1) breaking - creation of ingress by D to facilitate entry - going through a door is not breaking, but opening any other door is considered breaking - a door slightly ajar that is not moved an inch is not breaking - opening a jewelry box is not breaking - going through a chimney is not breaking, but no invitation, so considered breaking - constructive breaking: telling a lie to gain entrance - breaking out of a premises is not considered breaking (2) entering - de minimis rule - physically enter dwelling - any part of the body - fingers under window was entering - instrument enters: (1) create ingress - not considered entering (2) use to fish for something - considered entering (3) dwelling
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- habitation - where people sleep regularly - not businesses or abandoned buildings unless someone sleeps there regularly (4) of another (5) at night - countenance illumination by natural (not by moon or candle) light, then not night (6) without consent (7) with intent to commit a felony Modern Elements: (1) unlawful entry (2) building or cars (3) day or night (night is considered an aggravating element) (4) with any unlawful intent MPC Elements: (1) enters (2) building (3) with purpose to commit a crime - treated as a third degree felony - treated as a second degree felony if: (1) done at night (2) injury to someone (3) deadly weapon

INCHOATE CRIMES
(1) ATTEMPT - substantial but ineffectual effort to commit a crime - how far into crime does D have to be? - criminalize acts short of crime where evidence clearly indicates criminal action Lockian issues - looking for those outside law - timeout for D - deter future attempts Common Law - treated as a misdemeanor even if target offense was a felony - the intention should be treated as the actual crime itself - allows for preventative intervention of society at a point short of commission of crime itself Modern Law - most are treated as misdemeanors unless underlying target crime is a serious felony - attempted crimes are separate crimes: attempted rape, attempted murder - tied to targeted offense, though - is it possible to attempt an attempted crime? - depends on jurisdiction
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- attempted attempts are generally not allowed - sol: generally cannot attempt - negligent: no attempts for criminal negligence or involuntary manslaughter - some general intent allowed: rape, burglary Examples: (1) A roams looking for a victim; cannot find a victim (2) B loads a gun with blanks which he thinks are bullets; shoots at victim from behind (3) C goes up to victim and puts gun in face of victim; police drive up and scare C away (4) D succeeds in finding and killing victim - murder ELEMENTS: (1) mens rea - need specific intent that if completed would constitute a crime (2) actus reus - perpetration of some level of action that manifests criminal intent - need beyond mere planning MENS REA - need specific intent - can be proved by circumstantial evidence - subjective - intent depends on mens rea of target offense Examples: (1) A kills with specific intent to kill - if victim survived, attempted murder because specific intent to murder (2) B kills but only intended to inflict serious bodily harm - if victim survived, attempted murder (3) C kills by wanton and wilful disregard - if victim survived murder 2 (4) D kills in commission of felony - if victim survived murder 2 ACTUS REUS - look at whether the acts were in preparation to commit the crime if the opportunity offered or if the acts constituted a crime itself - acts have to be so near to its accomplishment that in all reasonable probability the crime itself would have been committed but for timely interference - do not need completed criminal act, though - need more than mere preparation - what act suffices? How far does D have to go past preparation? Tests: (1) dangerous proximity - requires to wait too long - need dangerous proximity to success - majority (2) probable desistance - likely D would not stop without third party intervention - the accuseds conduct constitutes an
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attempt if, in the ordinary and natural course of events, without interruption from an outside source, it will result in the crime intended (3) stop the film - ambiguous test - freeze movie frame - the accuseds acts must demonstrate unequivocally that the accused is unlikely to withdraw voluntarily from the criminal conduct - ambiguous acts are the result of ambiguous attempt (4) MPC - substantial step in furtherance of the crime - can voluntarily abandon (5) overt act - beyond mere preparation - used in North Carolina - no abandonment defense ======================================================================== crime dangerous North Carolina stop the film test MPC no crime proximity Defenses (a) Abandonment - occurs when an individual voluntarily forsakes his criminal plan prior to committing an overt act in furtherance of that plan (North Carolina) - North Carolina does not really have abandonment Involuntary Abandonment - not a defense (MPC) Voluntary Abandonment - jurisdictions differ if abandonment can occur after substantial completion - MPC (b) Impossibility legal impossibility - the act if completed would not be criminal - where there is legal impossibility, attempt cannot general be charged factual impossibility - the basic or substantive crime is impossible of completion, simply because of some physical or factual condition unknown to the D - where there is a factual impossible, attempt can be charged - not a defense inherent impossibility - just cannot be done - D really wants to commit the crime, but for one reason or another, it is impossible to commit Examples: (1) Person accepts goods which he believes to have been stolen, but which were not in stolen. - legal impossibility (2) Commit subornation of perjury where the false testimony solicited, if given, would have been immaterial to the case at hand and hence, not perjurious. - legal impossibility (3) The picking of an empty pocket. - factual impossibility
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(4) An attempt to steal from an empty receptacle. - factual impossibility (5) An accused who offers a bribe to a person believed to be a juror, but who is not a juror. - legal impossibility (6) An official who contracts a debt which is unauthorized and a nullity, but which he believes to be valid. - legal impossibility (7) A hunter shoots a stuffed deer believing it to be alive is not guilty of attempt to shoot a deer out of season. - legal impossibility (8) Where D shoots into the intended victims bed believing he is there, when in fact he is elsewhere. - factual impossibility (9) Where the D erroneously believing that the gun is loaded points it at his wifes head and pulls the trigger. - factual impossibility (10) D take a voodoo doll and creates and likeness of A. - inherent impossibility (11) D takes a coat which turns out to be abandoned - legal impossibility (2) Complicity Common Law (1) principal - the primary perpetrator (2) accessories before the fact - active in planning the crime but were not present when crime perpetrated (3) aiders, abettors - those at the scene (assisting, causing; MPC: principals in the second degree) (4) accessories after the fact - gives aid and comfort to a criminal punishment - 1, 2, & 3 are punished the same; 4 less severely ELEMENTS: (1) actus reus - giving of assistance or encouragement or failure to perform legal duty to prevent crime - mere presence does not infer criminal participation - presence is only sufficient if is intended to and does aid the primary actors - principal does not need to be aware of assister - efficacious - giving burglars tools are enough even if the assistance provided is never used in the commission of a crime - acts or omissions toward commission of the crime - can be satisfied by: (1) physical actions - providing of things, services - intermediary or third party
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(2) non-physical action - encouragement - words, gestures, passing of note or message (2) mens rea (a) specific intent rule - promote or facilitate commission of a specific crime - must have same intent as principal - must know facilitating - majority rule - accomplice must know assisting in commission of a specific crime - majority & MPC (b) knowledge - inferred in grave circumstances - most jurisdictions use a reasonably foreseeable test (c) mere knowledge of the fact that one is giving assistance - rarely applied (3) concurrence (4) causation - de minimis factor - material assistance toward commission of a crime EXAMPLES: (1) A - boss wants to hire B & C to rob a bank B - does actual robbery C - drives, acts as lookout and drives away D - waiting at cabin for B & C - C, on the way to taking the money to A, is caught by police A - accessory before the fact B - guilty of robbery (principal in the first degree) C - principal in the second degree D - accessory after the fact (2) A shoots and kills B. C is shouting and gesturing. A took as encouragement. What is Cs intent? - depends on what C was saying (3) A is at Cs apartment. A takes off window screen and helps B take Cs laptop. - B is the principal, A is the accomplice (4) A has specific intent to rob; B drives. Another crime occurs that B does not intend. Lockian Response: (a) criminal mind should be removed form society (b) D did not commit anything; D should only be punished for what D does Broad Culpability Test - responsible for everything that occurs - rarely applied Reasonableness Test - reasonably foreseeable that crime would occur - majority application Narrow Specific Intent - only responsible for what specifically intended Unintentional Crimes - No specific intent - no conscious purpose to take life, but negligence was of such that criminal negligence can be presumed
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- criminal negligence, recklessness (involuntary manslaughter, vehicular homicide) How do you specifically intend to do a negligent crime? - responsible if intend to do an act which leads to death Example: (1) A gives aid to B; B acts, using As aid, and kills C. - criminal negligence - look at As specific intent Principals Liability - can D be charged higher than the principal even though only an accomplice? - accomplice can be convicted even when principal acquitted - majority rule Example: (1) C comes upon A & B who are fighting; C hates A; C provides a knife to B; B kills A. B & C are charged with murder. - B guilty of murder - C would be charged as an accomplice (2) A started fight with B. A said, I am going to kill B. - B could argue self-defense and be acquitted

Conspiracy

- in both complicity and conspiracy, looking to substantive crime for mens rea - thus, if D is lacking requisite mens rea for complicity, he is automatically lacking requisite mens rea for conspiracy, vice versa because both draw their mens rea from the same source (EXAM) (3) Conspiracy - an agreement by two or more persons to commit an unlawful act - a combination for an unlawful purpose - there is no such thing as attempted conspiracy - statutory crime - sometimes charged along with substantive crime Example: conspiracy to commit robbery and robbery - the commission of the substantive offense and a conspiracy to commit it are separate and distinct offenses - a conviction for the conspiracy may be had though the substantive offense was completed - it is does not matter that overt acts charged in the conspiracy counts were also charged and proved as substantive offenses
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- the agreement and the subsequent acts are separate and distinct from each other and each constitutes a crime - a person who conspires to commit a number of crimes is only guilty of one conspiracy - in other words, one conspiracy can lead to multiple crimes - conspiracy can expose D to complicity if the substantive crime is completed - generally treated as a felony even if crime conspiring about is a misdemeanor - responsible for all actions that naturally flow - conspiracy continues until abandoned or successful Merger Doctrine - cannot be charged with attempt of substantive crime that was actually charged ELEMENTS: (1) actus reus - the agreement between 2 or more to engage in unlawful activity agreement - tacit understanding is enough - a formal agreement is not needed - only need knowledge of a portion of the agreement - can be written, oral, or unspoken - can be a group with complete knowledge or only a few individuals know - dont need to know all conspirators between 2 or more people - each party must have specific intent Unilateral: a person agrees to proceed in a prohibited manner (MPC) Bilateral: two or more persons agree to proceed in such a manner (majority) - if others are removed by acquittal, cannot charge one person because cannot conspire with oneself - death of a conspirator, immunity and diplomatic immunity are not acquittal, so does not count and others can be charged (2) mens rea - specific intent of the substantive crime - unlawful objective or a lawful objective by unlawful means (a) intent may be inferred from knowledge when the purveyor of legal goods for illegal use has acquired a stake in the venture (b) intent may be inferred from knowledge, when no legitimate use for the goods or services exist (c) intent may be inferred from knowledge when the volume of business with the buyer is grossly disproportionate to any legitimate demand, or when sales for illegal use amount to a high proportion of the sellers total business (d) look at the seriousness of the crime Intent of a supplier who knows of the criminal use to which his supplies are put to participate in the criminal activity connected with the use of his supplies may be established by (1) direct evidence that he intends to participate or (2) through an inference that he intends to participate based on, (a) his special interest in the activity or (b) the aggravated nature of the crime itself. Common Law - only need agreement Example: (1) Old hypo; A is boss; B & C rob bank

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If B & C do what A said and are successful, B & C will be charged with robbery. (2) On the way to the bank, a security guard prevents robbery. B & C - attempt A - complicity (accomplice before the fact) (3) A, B, & C are overheard talking of a crime and creating an agreement. A, B, & C - conspiracy (4) A & B conspire to steal from C. - agreement - specific intent of larceny (5) A & B conspire to steal from C; however, B actually just intends to borrow from C. - no agreement with specific intent of larceny, so no conspiracy (unless in unilateral jurisdiction) wheel conspiracy - involves an individual (or small group), the hub, who transacts illegal dealings with the various other individuals, the spokes chain conspiracy - involves several layers of personnel dealing with a single subject matter, as opposed to a specific person - all participants are interested in the overall scheme and liable for all other participants acts in furtherance of that scheme - Ex: cartel situation Conspiracy v. Attempt - both inchoate and intervention comes prior to completion of crime Conspiracy - intervenes much earlier - merest act past agreement (North Carolina); act does not have to be criminal, just purposeful - purpose: dangerousness of group dynamic and get to D prior to crime Attempt - substantial proximity, etc., need some overt act - purpose: get to D prior to crime Where a statute holds that acts are needed, an overt act by one party will suffice for all conspirators - example: (1) A sent out to get sugar; A is busted on the way home with sugar - conspiracy (2) What is A is criminally insane? - A will be acquitted and the overt act goes out with A Defense (a) Withdrawal - not a complete defense - only absolves D from liability for acts after date of Ds withdrawal from the conspiracy - if the conspiracy plus the substantive crime is completed, D not allowed to withdrawal from what already accomplished and done - TARP is used to determine equivocality of withdrawal
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(1) notify co-conspirators - just needs to reach some of the conspirators - some jurisdictions require all to be notified, police notification, or dissuade conspirators (2) engage in acts inconsistent with objects of the conspiracy - just needs to reach some of the conspirators - some jurisdictions require all to be notified, police notification, or dissuade conspirators (3) completely abandon in good faith (4) MPC: cease activity in support and notify all members of withdrawal OR report to police

LEGAL DEFENSES TO CRIMINALITY

JUSTIFICATION DEFENSES - discrete set of circumstances where Ds actions are justified at law such that an otherwise criminal action is deemed nonculpable (1) Self-Defense - defending against an assault, attempted murder, or attempted rape - danger defended against must be either real or apparent to a reasonable person - only reasonable force is acceptable - all elements of a crime are in place but self-defense justifies the use of force Examples: (1) A is driving in a busy parking lot; A parks in a spot that B wanted; B makes threatening gestures and A hits B. - battery - may be self-defense if B was put in imminent danger

ELEMENTS: (1) one who is not aggressor (2) justified at law (3) to use reasonable amount of force (4) when he reasonably believes (a) that he is in imminent danger of unlawful bodily harm AND (b) use of such force is reasonably necessary to meet danger Three Reasonablenesses: (1) reasonable amount of force - objective; TARP (a) non-deadly - for non-deadly attacks (b) deadly - force designed or known to commit deadly harm - never reasonable unless deadly attacked - exceptions: size, sex, age, multiple assailants, notoriously violent reputation - look at amount of force anticipated from aggressor (2) reasonable belief in imminent danger - objective; TARP - if threat not imminent, there are other ways to deal with the situation - 2 types of imminence: (1) chronological imminence (2) psychological imminence (3) force is reasonably necessary to meet danger - more subjective
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- reasonable (honest) belief is self-defense even if mistaken belief - honest, unreasonable belief is not self-defense Example: A threatens B; A is known to be violent; A reaches into pocket for a comb; B, thinking that A was reaching for a gun, shoots A. - self-defense because it was reasonable mistake Retreat Rule Common Law - if he knows that he can retreat with complete safety and avoid the necessity of using deadly force - not required to retreat in non-deadly force situation - minority Exceptions: (1) Defense of Home - no duty to retreat and had the lawful right to stand his ground and meet force with force on his own premises Majority View: there is no duty to retreat from the residence before resorting to deadly force against a co-occupant or invitee if necessary to prevent death or great bodily harm, although there is a limited duty to retreat within the residence to the extend reasonably possible Minority View: where two people have equal rights to be in a home, neither is required to retreat and the defense of home does not apply Modern Law - does not require retreat for deadly or non-deadly force - majority - Kansas: shooting of victim that was breaking in car that had garage door opener MPC - give into attacker - not adopted in any jurisdiction Defense of Others Majority - right of a person to defend another ordinarily should not be greater than such persons right to defend himself - third party intervenes at his own risk - alter-ego rule Minority Rule - reasonable belief rule - what third party reasonably believes - jurisdictions are heading toward minority rule Examples: (1) A is traveling on road; A suddenly changes lanes, inadvertently cutting off B; A sees B gesturing and thinks that B is waiving hello; A pulls over and be comes at A with a baseball bat. - A can still retreat safely (2) A is driving down the road and notices his sisters car on the side of the road; sister is fighting with B. - A can only use the same force as sister had the right to use OR depends on what A
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reasonably believed (3) Same as example #1 but B is charging in with bat and B & A start fighting; A breaks free and grabs his gun. - deadly force met with nondeadly force OR self-defense because not the aggressor OR imperfect self-defense Imperfect Self-Defense - one of the reasonablenesses is missing - when A, the aggressor, attacks just to get B to hit him back, A can never use self-defense Exceptions: (1) A attacks with nondeadly aggression and B responds with deadly aggression (2) aggressor has withdrawn from the attack (3) mutual combat ELEMENTS: (1) must be free from fault in bringing on the difficulty with his adversary (2) must reasonably believe that (a) adversary will, unless forcibly prevented, immediately inflict a fatal or serious bodily injury (b) deadly force must be used upon the adversary to prevent an injury Resisting Arrest Common Law: - right to resist unlawful arrest Modern Law: - a person may not use force to resist any arrest, lawful or unlawful, except that he may use reasonable force to defend life and limb against excessive force - clear yourself by regular civil means Crime Prevention Police Officers Majority - deadly force may not be used unless it is necessary to prevent the escape and the officer has probable cause to believe that the suspect poses a significant threat of death or serious physical injury to the officer or others - police must have reasonably belief - a reasonable mistake is ok Minority need to recognize dangerousness of nighttime burglaries

Citizens Arrest Property Crime Prevention - no citizens arrest is valid unless a felony has in fact been committed - justified at law to use reasonable force when one has a reasonable belief that: (1) property is imminently in danger of unlawful interference AND (2) use of force is reasonably necessary to meet the danger Majority Minority deadly force is allowed or is reasonable when unlawful interference of property is accompanied by threat of deadly force or when one is defending his home permitted to use deadly force to protect property

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Felonious Escape Prevention - no citizens arrest would be valid unless a felony has in fact been committed - same power and limitations of police officers - however, a citizen must be correct in arresting - reasonable mistake is not allowed for a citizen EXCUSE - condition or circumstance that recognizes an excuse at some level, making an otherwise culpable criminal nonculpable - focuses on one element of the crime; typically the mens rea (1) Insanity - affirmative defense - at the time of the commission of the acts constituting the offense, D, as a result of a severe mental disease or defect, was unable to appreciate the wrongfulness of his acts - criminal activity is fully committed, but D is fully protected because the mens rea element is compromised Four Tests: (1) MNaghten - defective reasoning as to not know the nature and quality, or if did know, did not know that act was wrong - North Carolina; majority rule (2) Irresistible Impulse - understands right and wrong, but possesses irresistible impulse (3) Durham - act is the product of mental disease or defect (4) MPC - lacks substantial capacity to appreciate conduct or cannot conform conduct to the law; move away from MPC

DO NOT MEMORIZE

Execution - state is constitutionally prohibited from executing an insane D (8th Amendment) Automatism - automatic state - automatic, involuntary action in an unconscious state so that D is acting but is not fully aware of action rendering action involuntary for the actus reus and mens rea Legal Classifications: (1) epilepsy (2) head trauma (3) organic brain diseases: Alzheimer (4) acute emotional disturbances (5) hypoglycemic (6) drugs (7) somnambulism: sleep walking - California recognizes hypnotism - unsuccessful attempts to add amnesia, pms and post-traumatic stress disorder - rare defense - complete defense - acquittal and release Automatism v. Insanity insanity focuses on the mental state whereas automatism focuses on the actus reus

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(2) Intoxication - not a defense - states are free to decide how to treat intoxication, though Common Law - choice to drink is voluntary and is an aggravating factor - not a defense at all Modern Law - when the crime requires specific intent, a jury is allowed to consider Ds intoxication when assessing whether he possessed the mental state - not possible to raise defense of intoxication for general intent crimes like rape - difference between involuntary and voluntary intoxication - courts are much more generous if involuntary intoxicated - where evidence shows that mens rea was formed while sober and then D drinks to steady nerves, intoxication is never a defense Pros of Intox - no mens rea - involuntary intoxication affects actus reus - alcoholism is a condition or disease MPC (1) purposefully - intox is a defense (2) knowingly - intox is a defense (3) recklessly (4) negligently Cons of Intox - form mens rea when decide to drink - deters irresponsible drinking - hard to determine set level of intox

Felony Murder - where felony is excused because of intoxication, murder charge also disappears Murder One - if there is reasonable doubt as to premeditation, move to murder two (3) Infancy Common Law - kids were incapable of forming the sophistication to commit crime - rape: 0-7 - could not rape 7-14 - rebuttable presumption over 14 - could rape Modern Law - read mens rea totally out of the actions - a kid cannot form necessary mens rea due to immaturity and cannot appreciate the seriousness of the situation or the net result - focus in juvenile court is rehabilitation Transfer Hearings - state is not required to show at the transfer hearing beyond a reasonable doubt that D committed the act - only have to show that a reasonable man would believe the crime occurred and that D committed it - court will only overrule transfer order if it is clearly erroneous, not supported by any rational basis, and is arbitrary and capricious

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Factors: (1) seriousness of the offense, and whether violence was employed by the juvenile in the commission of the offense AND (2) repetitive pattern of adjudicated offenses which show juvenile is beyond rehabilitation as shown by past efforts to treat AND (3) prior history, character traits, mental maturity, and any other factors which reflect on prospects of rehabilitation (4) Duress - affirmative defense to a crime (other than murder) - if there is a reasonable, legal alternative to violating the law, the defense will fail - if imperfect, mitigates crime and/or sentence - where D is successful in proving duress, coercer steps into place or D and is liable for the crime - kind of like complicity - order from a superior is not sufficient to establish duress Felony Murder - where felony is excused because of intoxication, felony murder charge also disappears Common Law - objective belief that the use or threat of harm which is present, imminent, and pending and of such a nature as to induce a well grounded apprehension of death or serious bodily harm motivating criminal conduct - must be understood that there is a threat - does not excuse murder even if the accused acted in response to immediate threats - threats of slight injury, damage to reputation, or threats of property destruction are not coercive enough to overcome the will of person or ordinary courage - a generalized fear of retaliation by an accomplice unrelated to any specific threat is insufficient - when there is a present, imminent, and impending danger, concern for the well-being of another, particularly a near relative can support duress - when not imminent must reasonably avail oneself of escape or terminate any involvement with person threatening - threat of future harm is not enough Modern Law - does not have to be based on an alleged threat of immediate bodily injury - subjective standard - future harm is just as coercive Trier of Fact looks at: (1) immediacy (2) gravity of threat (3) seriousness of the crime committed under duress (4) identity of person threatened (5) escape and resistance ELEMENTS: (1) (2) (3) (4) (5) coercion to do an act (other than murder) use or threat of unlawful force (subjectively understood) against person or another person of reasonable firmness in the accuseds situation would be unable to resist (objective standard; TARP)

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MPC - objective standard Changes common law by:(1) death and serious bodily harm ==> unlawful force (2) retains threat to near relative (not property) (3) removes imminence of threat (4) objective standard (person of reasonable firmness) - subjective to extend D believes Elements for an Escape Charge (1) faced with a specific imminent threat of death or substantial bodily injury (2) no time for complaint to the authorities or there was a history of futile complaints AND (3) D must immediately report to authorities after escape (5) Necessity Two types: (1) two illegal actions to choose between (2) one illegal and one legal but D thinks the legal action is evil - no pure mens rea - duress is human-impelled and necessity is impelled by natural causes - justification and not merely an excuse - balance of criminal activity - harm caused by the use of necessity must not be disproportionate to the harm avoided - had to do it - appropriate when adhering to criminal law would create a greater harm than violating - common law excuse defense MPC - precludes necessity whenever legislature has legalized the conduct - lesser of two evils - two crimes or quasi-crimes possible, D must choose the lesser of the two crimes (2) - narrows definition if D actually created the situation ELEMENTS: (1) apparent, measurable harm to be avoided (2) harm to be done is subjective harm though must be reasonable (a) at the time of the act, was Ds subjective impression that he was doing the lessor of 2 evils AND - goes beyond legal v. illegal to what the D actually perceives as an evil (b) whether harm chosen was less destructive than the harm avoided (objective standard) - was D correct in making his choice (3) was there a third option - does not apply if there is a third option available - objective standard Examples: (1) Ship captain takes refugees against embargo law; breaks embargo and docks. Captain had the choice of docking or dying during a storm. (2) Sailors mutiny to return an un-seaworthy boat to shore. (3) Police speeding to make an arrest. (4) Husband rushing pregnant wife to hospital. (5) A kills B to save the village; the death of B is the lessor evil. (6) A has choice of running B down or running into a house that A perceives to be an empty house

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- so long as it is a reasonable belief, that is okay (7) A kills B in malice; afterwards, A discovers that in killing B, A saved C, D, & E. - no necessity (8) A has a choice of removing a rare painting or a baby from a burning house. - if A chooses painting, A will be probably be charged with criminal negligence, involuntary manslaughter - no necessity (9) A has the choice of stealing or committing murder. - stealing is the better choice Necessity v. Duress Duress - committed on D Necessity - best of 2 evils - participating in a crime v. killing old ladies (6) Entrapment Common Law - police had no limits Modern Law - each state is permitted the right to determine what entrapment is - if government is so excessively involved in encouraging criminal behavior that justice demands an acquittal - defense that officials conduct was so outrageous as to require a reversal is almost never successful - officials go too far when they implant in the mind of an innocent person the disposition to commit the alleged offense and induce its commission in order to prosecute - predisposition is to be assessed at the time the officials first suggest the crime - predisposition: readiness and willingness to commit a crime when the opportunity presents itself - officials need not have a reasonable suspicion of wrongdoing in order to conduct an undercover investigation of a particular person - where D involved in criminal activity that is created and perpetuated by state, D may argue that pure mens rea was not in place, excusing otherwise criminal activity - government solicits, induces, or encourages another to commit a crime where D argues that D would not have committed but for the inducement - not applicable to private circumstances Example: employer trying to catch an employee by putting $20 on a table - usually used in social crimes: prostitution, drugs, bribery, gambling, etc. Exceptions: (1) seriousness of the offense Ex: no excuse for serious felonies or violent crimes, e.g., murder, rape Jurisdictional Approaches (1) unwary innocent - entrapment defense is allowed unwary criminal (2) government actions - what actions are taken and how outrageous they are (3) objective standard - look to see if entrapment was set up to catch a particular crime

RICO and VICTIMLESS CRIMES

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RICO - 1967 - has a civil and criminal component - trying to eliminate contamination of businesses by dirty money:(1) investing of racketeering funds (2) taking over legitimate business through racketeering activities (3) operating of business through racketeering 1961 - liberally construed - prosecution can do almost anything racketeering - murder, kidnaping, arson, extortion, gambling, bribery, narcotics criminal activities - D using income - pattern of criminal activity - 2 or more incidents by a person over 10 years - different charges for different acts enterprises - dirty money - investing racket profits in legitimate or illegitimate business RICO conspiracy - pattern satisfied when D agrees to commit 2 acts even if D never actually does the acts - need some connection between conspirators, though - cannot charge broad conspiracy unless Ds are connected CORPORATIONS - stigma of crime Common Law - not possible for a corporation to be held liable Modern Law - corporations can now be held liable - if only death or imprisonment is mentioned in the statute, then the corporation cannot be held liable - corps can be liable for specific intent crimes, e.g., theft, forgery - corps can be liable for culpable homicide -- voluntary manslaughter Actus Reus - agent must have been (1) acting in furtherance of corporate interests (2) acting within course and scope of employment (3) acts were authorized, tolerated, or ratified by corporation - any criminal action by any employee at any level - example: mailroom clerk - very expansive application Mens Rea - management formulates - those at the supervisory level - thus, the mailroom guys mens rea is not sufficient to be able to hold a corporation liable - very expansive application MPC
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- follows modern law Conspiracy - individual and corporation - corporation and corporation - corporation and own agents - agent and corporation must individually benefit and agent must be working outside the scope of his employment VICTIMLESS CRIMES - consenting adults is not a defense

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