Atlanta s John Marshall Law School Professor Mears Criminal Law, Summer 2011.

Criminal Law Professor Mears Outline I. GENERAL MATTERS (A) WHAT IS LAW? y Law is a concept, an idea, a formula and a goal. y The law is a creation from within social or relational groups and consists of a set of enforceable edicts, guidelines, and rules that the group has developed in order to survive. 8 Elements of the law 1. Laws must exist and those laws should be obeyed by everyone, incl. those responsible for enforcement 2. Laws must be published and made public. 3. Laws must be prospective so that the effect of the laws only take place after the law has been enacted. 4. Laws must be written clearly in order to avoid unfair or biased applications. 5. Laws must avoid contradictions. 6. Laws must not command a person to do performing impossible tasks. 7. Laws must remain constant through time, however laws should also allow for revisions when the underlying social and political circumstances have changed. 8. Laws should be enforced consistently Substantive vs. Procedural Law y Substantive law defines how the crime is defined and the character of the crime which will be charged. o It deals with what a community or society deems to be a Rule of the Congregation. y Procedural law provides the process by which a crime, once it has been identified and charged will go through the adjudication stages or the stages of resolution of the charges. History of Criminal law y (1) Codex Hammurabi: first recorded law of which there is tangible evidence o Code of Hammurabi dates to circa 1760 B.C. and focused primarily on trade, family, and work. y (2) Dead Sea Scrolls o In the 1940 s there was a discovery of what has been labeled as the Dead Sea Scrolls. o It contained three different texts. One has been called the Rule of the Congregation.  The Rule of the Congregation governed the stages of life for members of the community and the duties that were expected of them at each age. y (3) Sharia Law o By definition, Muslim states are theocracies, religious texts are law. o Sharia Law is referred to as Muslim or Islamic law. It covers both civil and criminal law, as well as regulating individual conduct both personal and moral. o Sharia law is derived from four main sources:  (1) The Quran, Islam's holy book;  (2) The hadith, or record of the actions and sayings of the Prophet Mohammed;  (3) Ijma, the consensus of Islamic scholars;  (4) Qiyas, a kind of reasoning that uses analogies to apply precedents established by the holy texts to problems not covered by them, for example, a ban on narcotics based on the Quranic injunction against wine-drinking. y (4) Magna Carta o In 1215 A.D., the Magna Carta was forced upon the King John as a result of a revolt by some of his noblemen. This became the basis for laws and the interaction between the king and his subjects o It established the principle that no one, including the king or a lawmaker, is above the law. o These were rules for the sovereign and how the sovereign was to be limited in his/her power

over the kingdom s subjects. (5) Common Law o Common law was developed in England by Three Courts: o (1) King's Bench Court  This was the principal court for criminal cases and the place to hear disputes between the citizens and the King. It became a civil court, alongside the Court of Common Pleas, serving also as an appellate court that had the jurisdiction to uphold or overturn judgments made in the Court of Common Pleas. o (2) The Court of the Exchequer  This court s original purpose was to audit money paid to the King or Queen. It later assumed other functions, such as the collection of taxes, and acted as a court of law to decide what was legally owed to the Crown. o (3) The Court of Common Pleas  This court dealt with matters that arose between the King s or Queens subjects which did not concern the Crown. (6) U.S. Constitution o In 1787 the people of the United States adopted the current United States Constitution. o The term 'democracy' is not mentioned even once in the Constitution of America. o Article I: All legislative powers are granted to the House of Representatives and to the Senate. o Article VI: The Senators and Representatives before mentioned, and the members of the several state legislatures, and all executive and judicial officers, both of the United States and of the several states, shall be bound by oath or affirmation, to support this Constitution. o Bill of Rights: The Constitution provided a process by which it could be amended. In a further effort to clarify and protect the rights of individuals, the several states voted to add the first ten amendments to the Constitution that became known as the Bill of Rights. o 14th Amendment: After the Civil War, the several states amended the Constitution to explicitly extend the federal Constitution s equal protections and due process protections on the states.

Sources of criminal law y (1) Common law crimes: A common law crime is one created and enforced by the judiciary in the absence of a statute defining the offense. o No federal common law crimes: Federal common law is governed entirely by statute. Although there are no federal common law crimes, Congress has provided for common law crimes in the District of Columbia. o Majority view common law crimes retained: A majority of states retain common law crimes either implicitly or by express retention statutes. o Minority view (modern trend) common law crimes abolished: A minority of the states (about 20) have abolished common law crimes either expressly by statute or impliedly by the enactment of comprehensive criminal codes. These states nevertheless retain the various common law defenses such as insanity and self-defense. y (2) Statutory crimes: Today, state legislative statutes are the primary source of criminal law. Many states have adopted or are in the process of drafting comprehensive criminal codes. Statutory law is written law (as opposed to oral or customary law) created by a legislature or other governing authority such as the executive branch of government in response to a perceived need to: o (1) Clarify the functioning of government, (2) Improve civil order, (3) To codify existing law. y (3) The Model Penal Code: Although not a source of law, the Model Penal Code ( MPC ) was a scholarly endeavor to compile a comprehensive and coherent body of criminal law. Since its publication in 1962, the MPC has greatly influenced the drafting of state criminal statutes. The law is divided into four principle categories: y (1) Natural Law: Law whose content is set by nature and that therefore has validity everywhere. o Harper v. State (GA) Natural Law: Once a procedure has been recognized in a substantial number of courts, a trial judge may judicially notice, without receiving evidence, that the procedure has been established with verifiable certainty, or that it rests upon the laws of nature.

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(2) The Law of Nations: Law which exists between Nations or States and of the obligations corresponding to those laws. (3) Public Law: Law governing the relationship between citizens and the state. (4) Common Law: Law of abstract rules which judges apply to the various cases before them.

(B) WHAT IS A CRIME? y Definition: any social harm defined and made punishable by law. y Ga. Code Ann., 16-2-1:A crime is a violation of a statute of this state in which there is (1) a joint operation of an act or omission to act and (2) intention or criminal negligence. o (1) Criminal negligence: an act/failure to act which demonstrates a willful, wanton, or reckless disregard for the safety of others who might reasonably be expected to be injured thereby. o (2) Intent: The Intent required for a crime doesn't mean an intention to violate a statute, but means an intention to commit the prohibited act.  General intent means intent in the sense that a person intends consequences of his voluntary physical actions.  Specific intent refers to state of mind that is thought culpable. y Ga. Code Ann., 16-2-6: A person is not presumed to act with criminal intention, but the existence of intent can be found by considering the words, conduct, demeanor, motive and other circumstances connected with the act in question. Classification of crimes y (1) At common law: all crimes were divided into three classes: treason, felonies, and misdemeanors. Now, Several additional means of classifying crimes are now frequently employed either by the courts or by state statutory schemes. y (2) Felonies and Misdemeanors: Most states now classify as felonies all crimes punishable by death or imprisonment exceeding one year. Misdemeanors are crimes punishable by imprisonment for less than one year or by a fine only. y (3) Malum In Se and Malum Prohibitum: A crime malum in se (wrong in itself) is one that is inherently evil, and these include all offences against the moral law. A crime malum prohibitum is one that is wrong only because it is prohibited by legislation. o Ex: Battery, larceny, and drunken driving are mala in se, whereas hunting without a license, and driving over the speed limit are mala prohibita. y (4) Categories of crimes: o 1. Violent crime (killing, force, violence, threats of violence) o 2. Property crime (taking, depriving, trespass, converting) o 3. Crimes against morality (fornication, seduction, illicit behavior) o 4. Crimes against public order (disorderliness, threats to public safety and peace) o 5. Crime by government (genocide, torture, brutality, civil rights violations) o 6. Hate crime (bias, prejudice, discrimination) o 7. Organized crime (illegal goods and services) o 8. White-Collar crime (deception, price fixing, gouging, non-violent illicit financial gain) o 9. Occupational crime (opportunism, misuse of professional capacities) o 10. Victimless crime (addiction, some consensual sexual acts) o 11. High technology crime (computerized misrepresentation) Six Stages of Committing a Crime: 1. DF Conceives of the idea of committing the crime (Mental). 2. DF Evaluates the idea, considering whether to proceed (Mental). 3. DF Forms the intention to go forward (Mental). 4. DF Prepares to commit the crime (Action). o Ex: Obtaining a gun in anticipation of robbing a bank; buying poison with the intention of putting it into a drunk. 5. DF Commences commission of the offense (Action). o Ex: Goes into the bank; Puts the poison into the drink.

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DF Completes his or her actions, achieving the goal (Action). o Ex: Obtains money from the bank clerk; The intended victim drinks the poison and dies. Generally: only after the third stage is a person liable for criminal punishment because both a men s rea and an actus rea are necessary for criminal liability for most crimes (except SL crimes).

Limitations on Legislative Creations of Crimes y The actions of federal and state legislators are limited by the federal and state constitutions! y Article 1: the Constitution expressly prohibits ex post facto laws. The Supreme Court has defined an ex post facto law as one that operates retroactively to: o (1) Make criminal an act that when done was not criminal; o (2) Aggravate a crime or increase the punishment therefore; o (3) Change the rules of evidence to the detriment of criminal DFs as a class; or o (4) Alter the law of criminal procedure to deprive criminal DFs of a substantive right. y 8th Amendment: prohibits laws that would provide for cruel and unusual punishments. y 5th/14th Amendments:The 5th and 14th Amendment prohibit laws that would deprive a person of life, liberty or property without due process (fairness). Seven Characteristics of a Crime: y (1) Harm o There are external consequences that injure somebody else physically or psychologically. y (2) Legality o Things less serious than crimes are called wrongs and although wrongs may be frowned upon, they do not consist of criminal behavior. Instead, crimes are forbidden things for which the evildoing has been specified in advance. y (3) Actus Reus (guilty act): A crime always requires action or inaction when the law calls for action. y (4) Mens Rea (guilty mind) o A crime always has certain mental aspects, such as intent and purpose, but also recklessness and negligence. These are all mental states, short of motive, that the law recognizes as blameworthy. y (5) Causation o A crime must lead directly or indirectly to the harm without too much delay. o Actual cause is direct and proximate cause is indirect. o Logic must be used to determine the fairness of how far back in time the setting in motion of a chain of events resulted in foreseeable harm. y (6) Concurrence o The criminal conduct (actus reus) and criminal intent (mens rea) must occur together at about the same time. y (7) Punishment o This is the definition of law as having some authority behind it, but it clearly requires some sort of penalty sanction, whether retribution, restitution, compensation, regulation, or rehabilitation. General Principles of Criminal Law: y (1) Right to a Trial By Jury: o Duncan v. Louisiana (US) Rationale: The guarantees of jury trial in the Federal and State Constitutions reflect a profound judgment about the way in which law should be enforced and justice administered. A right to jury trial is granted to criminal defendants in order to prevent oppression by the Government. o US Constitution: the Sixth Amendment of the U.S. Constitution mandates Jury trials.  In All criminal prosecutions, the accused shall enjoy the right to a speedy and public trial, by an impartial jury. o Georgia:Jury Trials are mandated by GA Constitution, Art. I, I, Paragraph 11  (a) The right to trial by jury shall remain inviolate, except that the court shall render judgment without the verdict of a jury in all civil cases where no issuable defense is filed and where a jury is not demanded in writing by either party. In criminal cases, the defendant shall have a public and speedy trial by an impartial jury; and the jury shall be

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the judges of the law and the facts. (b) A trial jury shall consist of 1 2 persons; but the General Assembly may prescribe any number, not less than six, to constitute a trial jury in courts of limited jurisdiction and in superior courts in misdemeanor cases. (2) Beyond A Reasonable Doubt Standard: o In re Winship (US): It is far worse to convict an innocent man than to let a guilty man go free.  Holding: In any criminal prosecution, every essential element of the offense must be proved beyond a reasonable doubt. o What is Reasonable Doubt?  Jackson v. Virginia (US): A jurors mind must be in a subjective state of near certitude.  Pattillo v. Mangum (GA):To establish a contention to a reasonable and moral certainty is, in substance, the same as establishing it beyond a reasonable doubt. (3) Presumption of Innocence: o Coffin v. US (US): There s a fundamentalpresumption of innocence of persons accused of crimes. (4) Jury Nullification o Definition: Jury nullification is a jury s inherent power to acquit the defendant regardless of the strength of the evidence against him. o Nel v. State (GA) Jury Nullification: [W]hile the jury does possess a de facto power of nullification, it nonetheless is true that if the evidence proves the defendant guilty beyond a reasonable doubt it is the jury's duty to convict. 

(C) PUNISHMENT Essays on Punishment: y (1) Jeremy Bentham: Mankind is governed by two masters: Pain and Pleasure y (2) Kent Greenwalt: write about why society punishes people. He cites Bentham s utilitarianism theory. o 3 fundamental questions are asked with regard to the imposition of punishment  (1) What is the general justifying aim of the criminal justice system?  (2) To whom may punishment be applied?  (3) What level of punishment is permissible? y (2)Immanuel Kant: The right to inflict punishment is the right of the Supreme Power of the State o Poena Forensis Judicial Punishment o Poena Naturalis Natural Punishment Theories of Punishment: y The practice of punishment is based upon one of two concepts: o (1) Consequentialist: The consequentialist approach holds that we punish people because of the positive effects that this has on society (a utilitarian approach). This is a forward looking approach that considers what does the punishment accomplish. o (2) Deontological: The deontological approach to focuses not on the consequences of punishing criminals, but on the justice of the act itself. Punishment may not make the world a better place, but it is the right thing to do anyway. (A retributive approach). y (1) Utilitarian (consequentialist) reasons for punishment include: o (1) Deterrence:The Deterrence theory argues that the amount of punishment should be the minimum required to achieve the desired amount of deterrence.  Special: punishment may deter the criminal from committing future crimes.  General: punishmentmay deter persons other than the criminal from committing similar crimes for fear of incurring the same punishment. o (2) Incapacitation: Incapacitation refers to removal of the opportunity or ability of the potential criminal to commit criminal acts (sometimes only of a certain sort). While imprisoned, a criminal has fewer opportunities to commit acts causing harm to society.  US v. Comstock (US):Necessary and Proper Clause of Article 1 (Elastic Clause): y The Congress shall have Power. . . To make all Laws which shall be necessary and proper for carrying into Execution the foregoing Powers, and all other

Powers vested by this Constitution in the Government of the United States, or in any Department or Officer thereof. . . o (3) Rehabilitation or Reform: Imprisonment provides the opportunity to mold or reform the criminal into a person who, upon return to society, will conform their behavior to societal norms. The amount of punishment should be enough to cause reform in the offender.  Factors to consider: y Is rehabilitation available to everyone? y Is the expense justified? y Retribution is divisive, so rehabilitation is justified o (4) Restorative Justice (Additional)  This emphasizes repairing the harm caused or revealed by criminal behavior. o (5) Education: The publicity around the trial, conviction, and punishment of criminals serves to educate the public to distinguish b/w good and bad conduct and to have respect for the law. (2) Retributive (deontological) reasons for punishment: o Offenders are punished for criminal behavior because they deserve punishment. Punishment is imposed to vent society s sense of outrage and need for revenge. o Backward: The retributive theory focuses on the crime itself as the reason for imposing punishment. Where the utilitarian theory looks forward by basing punishment on social benefits, the retributive theory looks backward at the transgression as the basis for punishment. o Proportional: The Retributive Theory of Punishment argues that the amount of punishment should be proportional to the amount of harm caused. People v. Du (US): Judge Karlin s objectives of sentencing a DF: o 1. Protect society; 2. Punish offender; 3. Encourage offender to be law-abiding; 4. Deter others; 5. Isolate offender; 6. Secure restitution for the victim 7. Seek uniformity in sentencing

Restraints on Punishment y (1) It should not be so severe as to be inhumane. y (2) It should not be imposed in such a way as to violate the rights of the offender. y (3) It should be proportionate to the crime. y (4) The less severe punishment should be preferred. (D) STATUTORY RULES AND CONSTRUCTION Statutory Law and Rules of Statutory Construction y Statutory law: written law (as opposed to oral or customary law) created by a legislature or other governing authority such as the executive branch of government in response to a perceived need to: o (1) Clarify the functioning of government, (2) Improve civil order, (3) To codify existing law. y Presumption: There is a presumption that a statute is constitutional and must be so held unless it is in conflict with some constitutional provision of the State or Federal Constitutions. o Criminal Statutes must be strictly construed o The intent of the legislature controls the interpretation of a statute. y Void for Vagueness doctrine: The Supreme Court has interpreted the Due Process clause of the 5th and 14th Amendments to require that a statute be sufficiently specific to provide fair warning and prevent arbitrary enforcement. The void-for-vagueness doctrine, incorporates two considerations: o (1) Fair warning: A statute must give a person of ordinary intelligence fair notice that his contemplated conduct is forbidden by the statute. o (2) Arbitrary and Discriminatory Enforcement must be avoided: a statute must not encourage arbitrary and erratic arrests and convictions. Additional rules of statutory construction: y (1) Plain Meaning Rule: When the statutory language is plain and its meaning clear, the court must give effect to it even if the court feels that the law is unwise or undesirable. o Exception: An exception to the rule exists if the court believes that applying the plain meaning of a statute will lead to injustice, oppression, or an absurd consequence.

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(2) Ambiguous Statutes Strictly Construed in Favor of DF: The rule of lenity requires that an ambiguous criminal statute must be strictly construed in favor of the DF. Ambiguity should be distinguished from vagueness. o An ambiguous statute is one susceptible to two or more equally reasonable interpretations. o A vague statute is one that is so unclear as to be susceptible to no reasonable interpretation. (3) Expressio Unius, Exclusio Alterius: According to this maxim, the expression of one thing impliedly indicates an intention to exclude another. (4) The Specific Controls the General, the More Recent Controls the Earlier: If two statutes address the same subject matter but dictate different conclusions, the more specific statute will be applied rather than the more general. The more recently enacted statute will control an older statute. o Ex: If one statute prohibits all forms of gambling and another permits charity-sponsored raffles, the latter will control a church raffle. o Ex: A 1980 statute banning advertising of cigarettes will govern a 1975 statute providing a limit on advertising expenditure by cigarette manufacturers. (5) Effect of repeal: At common law, in the absence of a saving provision, the repeal or invalidation of a statute bars prosecutions for earlier violations, as long as the prosecution is pending or not yet under way at the time of the repeal. However: a repeal won t set free someone who has been prosecuted and convicted and as to whom the judgment has become final.

(E) THEORY OF MERGER y (1) Common Law Rule: o (a) Merger of Misdemeanor into Felony: At common law, if a person engaged in conduct constituting both a felony and a misdemeanor, they could be convicted only of the felony. The misdemeanor was regarded as merged into the felony. o (b) No Merger Among Offenses of Same Degree: If the same act or a series of acts that were all part of the same transaction constituted several felonies (or several misdemeanors), there was no merger of any of the offenses into any of the others. y (2) Current American Rule No Merger: There is generally no merger in American Law, with the following limited exceptions: o (a) Merger of Solicitation or Attempt into Completed Crime: Someone who solicits another to commit a crime can t be convicted of both the solicitation and the crime. Similarly, a person who attempts a crime and then completes it can t be convicted of both the attempt and the completed crime.  However: Conspiracy doesn t merge with the completed offense (one can be convicted of robbery and conspiracy to commit robbery). o (b) Merger of Lesser Included Offenses into Greater Offenses: Lesser included offenses merge into greater offenses, and one placed in jeopardy for either offense can t be later retried for the other. A lesser included offense is one that consists entirely of some, but not all, elements of the greater crime. This rule is sometimes labeled a rule of merger, but it is also clearly required by the constitutional prohibition against double jeopardy.  Ex: Armed robbery may be a lesser included offense of felony murder and subsequent prosecution is barred. II. ESSENTIAL ELEMENTS OF CRIME (A) ELEMENTS OF A CRIME y The prosecution is generally required to prove the following elements of a criminal offense: o (1) Actus Reus (guilty act): A physical act (or unlawful omission) by the DF; o (2) Mens Rea (guilty mind): The state of mind or intent of the DF at the time of his act; o (3) Concurrence: The physical act and the mental state existed at the same time; and o (4) Harm: External consequences that injure somebody else physically or psychologically. o (5) Causation: A harmful result caused (both factually & proximately) by the DF s act. (1)ACTUS REUS (PHYSICAL ACT)

Definition: For there to be criminal liability, the DF must have either performed a voluntary physical act or failed to act when they had a legal duty to act. For this purpose, an act is defined as a bodily movement.A thought is not an act, and bad thoughts alone can t constitute a crime.

The Act Must Be Voluntary: y The DF s act must be voluntary in the sense that it must be a conscious exercise of the will. Rationale: An involuntary act will not be deterred by punishment. o Martin v. State (AL): The Martin case deals with the question of what is a voluntary act. An accusation of public drunkenness can t be established when the accused, while in an intoxicated condition, was involuntarily and forcibly carried to that place by the arresting officer. y MPC 2.01(1):The following acts are not considered voluntary : o (a) A reflex of convulsion; o (b) A bodily movement during unconsciousness or sleep; o (c) Conduct during hypnosis or resulting from hypnotic suggestion o (c)A bodily movement that otherwise is not a product of the effort or determination of the actor, either conscious or habitual. y Automatism: Automatism is not a voluntary act. Automatism comes from the Greek automatos or selfacting, is the spontaneous production of often purposeless verbal or motor behavior without conscious self-control or self-censorship. o State v. Utter (WA) Definition:Automatismis when a person, because of a blow to the head or for some other reason, loses consciousness but continues to perform on something akin to automatic pilot, without being aware of it, or remembering it later. o McClain v. State: Automatism has been defined as the existence in any person of behaviour of which he is unaware and over which he has no conscious control.  Ex: Sleep walking, hypnotic states, metabolic disorders, epilepsy, etc. o Pope v. State (GA) Definition:Atomatism is when a person, because of a blow to the head or for some other reason, loses consciousness but continues to perform on something akin to automatic pilot, without being aware of it, or remembering it later. Omission as an Act y Although most crimes are committed by affirmative action rather than by non-action, a DF s failure to act will result in criminal liability provided 3 requirements are satisfied: y (1) Legal Duty to Act: The DF must have a legal duty (as opposed to a moral duty) to act under the circumstances. Jones v. US (US):A legal duty to act can arise when: o (1) When astatuteimposes a duty (e.g. filing an income tax return or reporting an accident). o (2) A contract obligating the DF to act (e.g. one entered into by a lifeguard or a nurse). o (3) The relationship between the DF and the victim, which may be sufficiently close to create a duty. Ex: parent/children, spousal relationship o (4) The voluntary assumption of care by the DF of the victim. Although in general there isn t a duty to help someone in distress, once one renders aid, they may be held criminally liable for not satisfying a reasonable standard of care. o (5) The creation of peril by the DF o Barber v. Superior Court (CA):There s no criminal liability for failure to act unless there is a legal duty to act. y (2) Knowledge of Facts Giving Rise to Duty: Generally, the duty to act arises when the DF is aware of the facts creating the duty to act (e.g. parent must know that their child is drowning before their failure to rescue the child will make them liable). However, in some situations the law will impose a duty to learn the facts (e.g. a lifeguard asleep at his post would still have a legal duty to aid a drowning swimmer). y (3) Reasonably Possible to Perform: It must be reasonably possible for the DF to perform the duty or to obtain the help of others in performing it. o Ex: A parent who can t swim doesn t have a duty to jump in and try to save his drowning child. Status Crimes Lack Sufficient Actus Reus y Status Offenses: A person s status is not a crime. Status crimes are wholly unconstitutional, because

they lack an actus reus -some act or behavior that society has an interest in preventing. o Note: However, speech, unlike thought, is an act that can cause liability (perjury, solicitation). Robinson v. California (US):State law which made status of narcotic addiction a criminal offense for which offender might be prosecuted at any time before he reformed, and upon conviction required imprisonment of at least 90 days in a county jail, inflicted a cruel and unusual punishment, in violation of the Fourteenth Amendment.

(2)MENS REA MENTAL STATE y Purpose: A men s rea is a guilty mind, a guilty or wrongful purpose, or a criminal intent. Mens rea is required to distinguish between inadvertent or accidental acts and acts performed by one with a guilty mind. The latter type of act is more blameworthy and, arguably, can be deterred. o An injury caused without men s rea might be grounds for civil liability but typically not criminal. o However: in some cases (strict liability crimes), men s rea is not required. y Four mental states which support guilty conduct: o (1) Act with Purposefully (All specific intent crimes) o (2) Act with knowledge o (3) Act with recklessness o (4) Act with criminal negligence (1) General Intent Awareness of Factors Constituting Crime: y (1) Definition: General intent is only the intention to make the bodily movement that constitutes the act that the crime requires. In a crime of general intent, the intent required is proved through the proof of the commission of the act itself. o The term refers to whether a DF intended deliberate, conscious, or purposeful action, as opposed to causing a prohibited result through accident, mistake, carelessness, or absent-mindedness. y (2) Inference from Act: A jury can infer the required general intent merely from the doing of the act. It s not necessary that evidence specifically proving the general intent be offered by the prosecution. y (3) Transferred Intent: If a DF intended a harmful result to a particular person or object and, in trying to carry out that intent, caused a similar harmful result to another person or object, their intent will be transferred from the intended person or object to the one actually harmed. o Defenses: Generally, any defenses or mitigating circumstances that DF could ve asserted against the intended victim (e.g. self-defense, provocation) will also be transferred. o When it Applies: The doctrine of transferred intent most commonly applies to homicide, battery, and arson. It does not apply to attempt.  Ex 1: A shoots at B intended to kill him. A accidentally hits C, killing him. A s intent to kill B will be transferred to C. A may also be guilty of the attempted murder of B.  Ex 2: A shoots at B intending to kill him. She hits C, only wounding him. While A may be guilty of attempted murder of B, they are not guilty of attempted murder of C. y (4) General Intent Cases: o People v. Conley (IL): [a] person who, in committing a battery, intentionally or knowingly causes great bodily harm, or permanent disability or disfigurement commits aggravated battery. o Wright v. State (GA):What does the Georgia Criminal Code say about how a person may commit the offense of theft? The only intention required is the intention to make the bodily movement that constitutes the act that the crime requires, i.e., here for example, the act of receiving, possessing, or disposing of stolen property . (2) Specific Intent: y (1) Definition: A crime is a specific intent crime if the definition of a crime requires not only the doing of an act, but the doing of it with a specific intent or objective. y (2) GA Jury Instruction for Specific Intent Crimes: Criminal intent doesn t mean an intention to violate the law or to violate a penal statute but means simply the intention to commit the act that is prohibited by a statute. y (3) Three types of Specific Intent Crimes: o (1) Intention to commit a specific act;

(2) Intention to commit an act for a specific purpose; and (3) Intention to commit an act with awareness of attendant circumstances.  State v. Nations: Evidence that DF didn t know the age of child dancing in her bar since she didn t check identification wasn t sufficient to convict. DF was only aware of a high probability that child was under 17. (4) List of Specific Intent Crimes: o (1) Solicitation: Intent to have the person solicited commit the crime; o (2) Attempt: Intent to complete the crime; o (3) Conspiracy: Intent to have the crime completed; o (4) First degree premeditated murder (when defined by statute): Premeditated intent to kill; o (5) Assault: Intent to commit a battery; o (6) Larceny and robbery: Intent to permanently deprive another of their interest in property; o (7) Burglary: Intent at the time of entry to commit a felony in the dwelling of another; o (8) Forgery: Intent to defraud; o (9) False pretenses: Intent to defraud; and o (10) Embezzlement: Intent to defraud o o

(3) Malice Crimes Common Law Murder and Arson: y Although the intent required for malice crimes (common law murder and arson)are similar to specific intent (e.g. the intent to kill for murder), these crimes are not open to the specific intent defenses. o Common law created this special mental state category especially to deny to murder and arson the specific intent defenses. y Regina v. Cunningham: Malicious doesn t mean wicked. It means (1) an actual intention to do the particular harm that in fact was done, or (2) recklessness as to whether such harm should occur or not. (4) Strict Liability Offenses: y (1) Definition: Strict liability may be imposed as a matter of policy in the case of public welfare offenses. A strict liability offense dispenses with the men s rea requirement but retains the requirement that the DF have personally engaged in the necessary acts or omissions (actus reus). Generally, the men s rea isn t abandoned with respect to all elements of the offense, but only with regard to one or some of the elements. The major significance of a strict liability offense is that certain defenses, such as mistake of fact, are not available. y (2) How to identify: Strict liability offenses are generally regulatory offenses, i.e. offenses that are part of a regulatory scheme. They generally (1) involve a relatively low penalty and (2) are not regarded by the community as involving significant moral indecency. o Silence: If a statute doesn t expressly require a mental state, it doesn t necessarily mean that it s a strict liability offense. The statute may stillrequire some men s rea, especially if (1) it appears to be a codification of a traditional common law offense or (2) it imposes a severe penalty.  Ex 2: Federal legislation requires registration of any fully automatic machine-gun. The statute is silent on the question of mental state and provides a penalty of up to 10 years imprisonment. Held: DF may assert as a defense that he wasn t aware that the weapon in his possession was automatic. The type of statute and the harsh penalty indicate that Congress did not intend to dispense with the men s rea requirement. y Hoffer v. State (GA):Traffic safety offenses are usually strict liability offenses, which can be violated without mens rea or guilty knowledge. The purpose of traffic regulations are promulgated [to promote] the safe and expeditious movement of vehicular traffic on the highways, Thus, there is no requirement to prove mental fault or mens rea (5) Model Penal Code s View: y Definition: The MPC proposes eliminating the ambiguous common law distinction between general and specific intent. Instead, the MPC proposesfour levels of culpability into which the mental component of a criminal offense (i.e. the element of fault) can be characterized. y (a) Purposely, Knowingly, or Recklessly (subjective): When a statute requires that the DF act purposely (intentionally), knowingly, or recklessly, a subjective standard is used, i.e. the question is what

was actually going on in the DF s mind. o (1) Purposely: A person acts purposely with respect to his conduct when it is his conscious object to engage in certain conduct or cause a certain result, e.g. all specific intent crimes. o (2) Knowingly:(1) A person acts knowingly with respect to the nature of his conduct when he is aware that his conduct is of that nature or that certain circumstances exist. (2) He acts knowingly with respect to the result of his conduct when he knows that his conduct will necessarily or very likely cause such a result. (3) Conduct performed knowingly also satisfies the mental state of a statute that requires willful conduct. o (3) Recklessly: A person acts recklessly when he (1) consciously disregards a substantial or unjustifiable risk that circumstances exist or that a prohibited result will follow, and (2) this disregard constitutes a gross deviation from the standard of care that a reasonable person would exercise in the situation. An act performed recklessly is also performed wantonly.  Recklessness requires that the actor (1) take an unjustifiable risk and (2) that he know of and consciously disregard the risk. Mere realization of the risk is not enough. He must know that injury might result (if he knows that it is certain to result, he acts knowingly). Thus, recklessness involves both objective (unjustifiable risk) and subjective (awareness) elements. (b) Negligence (objective):A person acts negligently when he:(1) fails to be aware of a substantial and unjustifiablerisk that circumstances exist or a result will follow, and (2) such failure constitutes a substantial deviation from the standard of care that a reasonable person would exercise under the circumstances. To determine whether a person acted negligently, an objective standard is used. However, it s not merely the reasonable person standard that is used in torts; the DF must have taken a very unreasonable risk in light of the usefulness of his conduct, his knowledge of the facts, and the nature and extent of the harm that may be caused. o Violation of Statute or Ordinance as Evidence of Negligence: Violation of a state statute, municipal ordinance, or administrative regulation may as in tort law be evidence of liability. (c) How to Analyze Statutes Using MPC s Fault Standards o (1) General rule:Ideally, all offenses are defined by designating one of these four levels of culpability as to each objective element. o (2) State of Mind Applies to All Material Elements of Crime: Often a statute will establish a culpable state of mind without indicating whether it s required for all the material elements of the crime. In that case, the specified state of mind applies to all material elements of the offense unless a contrary purpose appears in the statute. o (3) General State of Mind Requirement Recklessness: If the statute defining the offense (other than a strict liability offense) doesn t include a state of mind requirement, the DF must have acted with at least recklessness with regard to each material element of the offense.  (a) Proving Higher Standard Sufficient: Under the MPC, a showing of a higher state of mind automatically satisfies a lower mental state requirement of a statute. Thus, a showing that the DF acted purposely or knowingly will satisfy the general requirement of recklessness.  (b) Other levels of Fault Must be Specified:Since a standard of recklessness is assumed if the state of mind isn t specified, if a lower standard (negligence)is sufficient, or a higher standard (knowledge) is required, it must be stated in the statute.

(3) CONCURRENCE OF MENTAL FAULT WITH PHYSICAL ACT REQUIRED y The DF must have had the intent necessary for the crime at the time he committed the act constituting the crime. In addition, the intent must have prompted the act. o Ex 1: A decides to kill B. While driving to the store to purchase a gun for this purpose, A negligently runs over B and kills him. Held: A is not guilty of murderbecause although at the time A caused B s death he had the intent to do so, this intent didn t prompt the act resulting in B s death (i.e. A s poor driving). o Ex 2: With the intent to kill B, A strangles B to the point of unconsciousness, but doesn t actually kill B. Thinking B is dead, A buries B, and B dies as a result. Is A guilty of murder, even though the death-causing act of burying B was done without the intent to murder? Yes, most courts would find that the two acts were part of a single transaction with a common intent.

(4) CAUSATION (1) General Requirement Must Be Cause in Fact and Proximate Cause: y (a) When a crime is defined to require not merely conduct but also a specified result of that conduct, the DF s conduct must be both the cause-in-fact and the legal or proximate cause of the specified result. o Pitts v. State (GA): In order to be convicted of vehicular homicide under Georgia law, the conduct of the DF must have caused the death. This requires showing that the DF s conduct was the legal or proximate cause, as well as the cause in fact, of the death. y (b) Common Law Requirement Year and a Day Rule: The death of the victim must occur within one year and one day from the infliction of the injury or wound. If it doesn t occur within this time period, there can be no prosecution for homicide, even if it can be shown that but for the DF s actions, the victim would not have died as and when he did. o The rule has been sharply criticized by the US Supreme Court as an outdated relic of the common law, and most of the states that have recently reviewed the rule have abolished it. y (c) Example analysis:There is causation. B died within a year and one day. But for A s shot, B would not have died. Negligent medical care isn t a superseding intervening factor that breaks the chain of proximate causation, unless it s gross negligence or intentional malpractice. (2) Two test for cause-in-fact:(1) cause-in-fact test and (2) substantial factor test. y (a) Cause-in-Fact: The DF s conduct must be the cause-in-fact of the result; i.e. the result would not have occurred but for the DF s conduct. o State v. Rose (RI): This case is an application of the but-for test. Did the defendant s conduct in leaving the scene of the accident cause the death or was the victim dead upon impact?  The court held medical testimony was consistent with the victim being killed on impact, so DF was not guilty. o Oxendine v. State: Causation is the antecedent but for which the result in question would not have occurred. o Welch v. State (AL): There was no testimony that but for the gunshot wound to the leg, the blood clot would not have formed and would not have made its way into Ms. Welch s lung and thus causing her death. The court reversed Mr. Welch s murder conviction.  ET that the blood clot was probably associated with it was too vague to support a murder verdict. No testimony was given as to how blood clots form and circulate. No autopsy was made. y (b) Substantial Factor test: The DF s conduct is a legal cause of the prohibited social harm if (a) his conduct is a substantial factor in bringing about the harm, and, (b) there is no rule of law relieving the actor from liability because of the manner in which his negligence has resulted in the harm." (See, Restatement Second of Torts, section 431) o Velazquez v. State:This case deals with the but for and substantial factor test in determining causation. It s clear that the DF s reckless operation of a motor vehicle in participating in the drag race with the deceased was, technically speaking, a cause-in-fact of the deceased's death under the but for test. But for the DF s participation in the race, the deceased would not have recklessly raced his vehicle at all and thus would not have been killed.  However: it would be unjust to hold the defendant criminally responsible for the deceased's unexpected and near-suicidal conduct. y (c) Modern Trend: Other scholars and writers have noted that given the limitations of the language use to apply the but-for-test, courts generally apply the substantial factor test even when they use the terminology of the but-for test. (3) Legal or Proximate Causation: Problems of proximate causation arise only when the victim s death occurs because of the DF s acts, but in a manner not intended or anticipated by the DF. The question in such cases is whether the difference in the way death was intended or anticipated and the way in which it actually occurred breaks the chain of proximate cause causation. y All Natural and Probable Results are Proximately Caused: The general rule is that a DF is

responsible for all results that occur as a natural and probable consequence of his conduct, even if he did not anticipate the precise manner in which they would occur. All such results are proximately caused by the DF s act. The chain of proximate causation is broken only by the intervention of a superseding factor. (4) Intervening Acts:Not all intervening causes will relieve a DF of criminal liability. As a general rule, an intervening cause only relieves a DF of liability if: (1) that intervening event wouldn t have been foreseeable to a reasonable person, and (2) the prohibited harm resulting from the DF s actions wouldn t have been foreseeable to a reasonable person. Generally, there are three types: y (1) An act of God, i.e., an event that cannot be traced back to any human intermediary; o Ex: A is driving negligently. To avoid A s swerving car, B takes an unaccustomed route home. B s car is struck by lightning, and B dies. The fact that lightning struck B was a mere coincidence. y (2) An act of an independent 3rd party, which accelerates or aggravates the harm caused by the DF, or which causes it to occur in an unexpected manner. Criminal human conduct by a third party will not relieve the DF of responsibility if his conduct still substantially contributed to the prohibited harm. o Ex: A, intending to kill B, merely wounds him. B receives negligent medical treatment at a nearby hospital. B dies. A can be held liable for B s death. Despite improvements in medical care, negligent care remains a foreseeable risk. A contrary result would follow if B died due to gross negligence or intentional mistreatment. y (3) An act or omission of the victim that assists in bringing about the outcome o Ex: A, intending to kill B, merely wounds him. B refuses medical treatment for religious reasons and dies. If modern medical knowledge could have saved B, can A be held liable for B s death? Most jurisdictions have held yes, because A s act directly created the risk of death and because the refusal of medical care may be found to be foreseeable.  This rule may apply even if the victim acts affirmatively to harm himself. Suppose B, in unbearable pain, commits suicide. The suicide may be found to be a foreseeable consequence of A s actions. y Cain v. State (GA): Whoever does a wrongful act is answerable for all the consequences that may ensue in the ordinary course of events, though such consequences are immediately and directly brought about by an intervening cause, if such intervening cause was (1) set in motion by the original wrong-doer, or (2) was really only a condition on or through which the negligent act operated to induce the injurious result. y Kibbe v. Henderson: The judge failed to define or explain the issue of causation as that term is used in this statute. Several intervening causes: victim moving to middle of road, driver of car hitting victim o Issue: Was victim moving to the middle of the road coincidental or responsive to Kibbe s acts?  (1a) If coincidental, was it foreseeable by Kibbe? If yes Kibbe is guilty.  (1b) If coincidental and not foreseeable by Kibbe? Kibbe not guilty.  (2) If moving to the middle of the road was responsive to Kibbe s conduct, then, Kibbe is guilty unless the victim s moving to the middle of the road was unforeseeable by Kibbe, then, in that event, Kibbe is not guilty. (5) Connecticut Jury Instruction on what cause-in-fact means that Prof. Mears likes: y (1) General: The state must prove beyond a reasonable doubt that the DF proximately caused the death of the victim. Proximate cause does not necessarily mean the last act or cause, or the act in point of time nearest to the death of the victim. The concept of proximate cause incorporates the principle that an accused may be charged with a criminal offense even though his acts were not the immediate cause of the death of the victim. y (2) Proximate cause: An act or omission to act is a proximate cause of the death of the victim when it substantially and materially contributes, in a natural and continuous sequence, unbroken by an efficient, intervening cause, to the death of the victim. It is a cause without which the death of the victim would not have occurred. It is a predominating cause, a substantial factor from which the death of the victim follow[s] as a natural, direct and immediate consequence. y (3) Foreseeability: It doesn t matter whether the particular kind of harm that results from the DF s act be intended by the DF. When the result is a foreseeable and natural result of the DF s conduct, the law considers the chain of legal causation unbroken and holds the defendant criminally responsible.

(6) Additional Rules on Causation: y (1) Hastening the Inevitable: An act that hastens an inevitable result is still a legal cause of that result. o Ex: A terminates the life support system of B, resulting in B s death. B has only 24 hours to live. A is liable for B s death. Note: Society may not want to condemn such an act of mercy, but for purposes of causation analysis, A s act caused B s death. y (2) Simultaneous Acts: Simultaneous acts by two or more persons may be considered independently sufficient causes of a single result. y (3) Preexisting Condition: A victim s preexisting condition that makes him more susceptible to death does not break the chain of causation; i.e. the DF takes the victim as he finds him. o Ex: A, with malice aforethought, shoots B in the leg. B bleeds to death before he can receive medical attention because he is a hemophiliac. A is liable for murder despite the fact that a person without hemophilia wouldn t have died from the shooting. (7) Model Penal Code Section 2.03 - Causation y (1) Conduct is the cause of a result when: o (a) It is an antecedent but for which the result in question would not have occurred; and o (b) The relationship between the conduct and result satisfies any additional causal requirements imposed by the Code or by the law defining the offense. y (2) When purposely or knowingly causing a particular result is an element of an offense, the element isn t established if the actual result is notw/n the purpose or contemplation of the DF(unforeseeable) unless: o (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 o (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 actor s liability or on the gravity of his offense. y The Model Penal Code at Section 2.02(7) defines knowingly as: o 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 III. ACCOMPLICE LIABILITY (1) Parties to a crime y (1) Common law:State v. Ward (MD):The common law distinguished four types of parties to a felony: o (a) Principles in the first degree (perpetrators): persons who actually engage in the act or omission that constitutes the criminal offense; o (b) Principals in the second degree (abettors): persons who aid, command, or encourage the principal and are present at the time; o (c) Accessories before the fact (inciters): persons who aid, abet, or encourage the principal but are not present at the crime; and o (d) Accessories after the fact (protectors): persons who assist the principal after the crime. y (2) Modern Statutes:Most jurisdictions, along with Georgia,have abolished the common law distinctions between (b) principals in the second degree and (c) accessories before the fact (accessories after the fact are still treated separately). Under the modern trend, all parties to the crime can be found guilty of the criminal offense. o (a) Jones v. State (GA): [t]he offenses of principal in the second degree and accessory before the fact were incorporated into the definition of parties to a crime. The elements of proof that one is a party to a crime or an accomplice requires proof of a common criminal intent.  18 USCA 2(b): This section abolished the distinction between principals and accessories before the fact. See also Tarkington v. US (1952).

(b) Principal: A principal is one who, with the requisite mental state, actually engages in the act or omission that causes the criminal result. Also, anyone who acts through an innocent, irresponsible, or unwilling agent is classified as a principal.  Ex: A gives a poisonous drink to B to give to C. B does so; C drinks it and dies. If B didn t know that the drink was poisonous, or if B was mentally ill or under duress, A, not B is the principal. Note that the principal need not be present when the harm results. o (b) Accomplice: An accomplice is someone who knowingly, voluntarily, and with common interest, participates in the commission of a crime, and can be charged with the same crime(s) for which the accused will be tried.  Jones v. State (GA) Definition: Aid and abet means to [h]elp, assist, or facilitate the commission of a crime, promote the accomplishment thereof, help in advancing or bringing it about, or encourage, counsel, or incite as to its commission. [Cit.] It comprehends all assistance rendered by words, acts, encouragement, support, or presence, actual or constructive, to render assistance if necessary. In essence, ... a defendant must be an accessory before the fact. o (c) Accessory After the Fact: An accessory after the fact is one who receives, relieves, comforts, or assists another, knowing that he has committed a felony, in order to help the felon escape arrest, trial, or conviction. The crime committed by the principal must be a felony and it must be completed at the time the aid is rendered. Today, the crime is usually called harboring a fugitive, aiding escape, or obstructing justice.  Separate crime: An accessory after the fact is not a party to the crime but the conduct which may give rise to the charge of accessory after the face is the basis of a separate and distinct crime. y Thus: the rule that the testimony of an accomplice must be corroborated by additional evidence does not apply when the testimony is from an accessory after the fact.  Penalty: Typically, the punishment for this crime has no relationship to the principal offense; 5 years is the most common max sentence. Exemptions are usually provided for close relatives of the principal offender (common law exempted only the spouse). (3) GA Code Ann., 16-2-20 Parties to a Crime:Every person concerned in the commission of a crime is a party thereto and may be charged with and convicted of commission of the crime. A person is concerned in the commission of a crime only if he: o (1) Directly commits the crime; o (2) Intentionally causes some other person to commit the crime under such circumstances that the other person is not guilty of any crime either in fact or because of legal incapacity; o (3) Intentionally aids or abets in the commission of the crime; or o (4) Intentionally advises, encourages, hires, counsels, or procures another to commit the crime. (4) Riley v. State (GA) Prosecution: GA law does not require that one who is a party to the crime be indicted as a party; rather, one who is a party to the crime may be indicted, convicted, and punished for that crime upon proof that he was a party to the crime. a party to a crime before he can be tried as such. (5) State v. Hoselton (VA) Lookout as an Accomplice: A person is an accomplice to the crime of another if he intentionally gives assistance or encouragement to another who commits a crime. o

(2) Three elements to Accomplice Liability: y (a) Proof that someone committed the underlying crime y (b) Actus Reus: Accomplice law eases the requirement of proving actus reus, but it does so with hard-todefine words. Words such as "aid", "abet", "assist", counsel", "induce" or "incite" may have different meanings depending upon what jurisdiction you're in. o Normally, you can't be considered as an accomplice simply for being there -- you must be constructively present - this is known as the Mere Presence rule, but there are exceptions in places with Good Samaritan laws where you can be tried as an accomplice for just standing there and watching someone get beaten, for example. y (c) Mens Rea: this is the element that it all boils down to in obtaining a conviction for being an accomplice. The words used in accomplice law imply apurposive attitude toward the crime.

Other courts have held to a less strict standard than purposively" (even though MPC recommends this only) such as "knowingly";still other courts have allowed reckless .

(3) Accomplice law (complicity) can be abused by prosecutors. Only a few restrictions exist: y (1) An accomplice must normally be physically present during commission of the crime, but advice or words of encouragement beforehand & providing material assistance afterwards will create a liability; y (2) No one can be convicted on the uncorroborated testimony of an accomplice alone; and y (3) Persons giving post-crime aid are punished less severely than those furnishing pre-crime aid. o Typically, the punishment has no relationship to the principal offense; five years is the most common max. sentence. Exemptions are usually provided for close relatives of the principal. (4) Georgia s Rule on Uncorroborated Testimony: y GA Code Ann., 24-4-8 Corroborating Testimony:The testimony of a single witness is generally sufficient to establish a fact. However, in certain cases, including prosecutions for treason, prosecutions for perjury, and felony cases where the only witness is an accomplice, the testimony of a single witness is not sufficient. Nevertheless, corroborating circumstances may dispense with the necessity for the testimony of a second witness, except in prosecutions for treason. o General rule: testimony of an accomplice must be corroborated by additional evidence y Georgia rule: A DF may not be convicted of a felony on the uncorroborated testimony of an accomplice. o The corroboration must be independent of the accomplice's testimony and it must connect the DF to the crime or lead to the inference that he or she is guilty. o However, the accomplice's testimony need not be corroborated in every detail, and the corroboration need not be sufficient, in itself, to warrant a conviction of the crime charged. o Slight evidence from an extraneous source identifying the accused as a participant in the criminal act is sufficient corroboration of the accomplice to support the verdict. (5) Being an accomplice isn t the same as: y (1) Being an accessory after the fact: this remains, in some jurisdictions, a separate and less seriousoffense for giving aid and comfort (harboring) to a fugitive. It s a separate offense because it's really helping someone avoid arrest or escape punishment more than helping someone commit a crime. o State v. Freeman (GA) Separate offense:An accessory after the fact is not considered an accomplice to the underlying crime itself, but is guilty of a separate, substantive offense in the nature of an obstruction of justice. o Givens v. State (GA) Can t be Both: [A] person cannot be both a party to a crime and an accessory after the fact. At common law and under modern practice, an accessory after the fact is not considered an accomplice to the underlying crime itself.... y (2) Being involved in a conspiracy: conspiracy is a completely different crime; according to the Pinkerton rule*, a person can be charged with both conspiracy to commit a crime and the crime itself under the law of accomplices. o Pinkerston v. US: Conspiracy Rules  (1) The requisite criminal intent for each DF is established at the formation of the conspiracy, and that each DF is thus liable, under the law of conspiracy, for each overt act or substantive offense committed in furtherance of the agreement.  (2) The co-conspirator's liability for substantive offenses continues until he or she takes "'some act to disavow or defeat the purpose'" of the conspiracy.  (3) When a DF is joined in a conspiracy, substantive crimes committed to advance that conspiracy can be charged to all defendants as long as they are still part of the conspiracy when those crimes are committed. o Ex: two people agree to commit murder, and one acts as a lookout while the other kills somebody; both can be charged with conspiracy to commit murder and murder itself. y (3) Facilitating a crime or soliciting a crime: these are separate offenses, related to the ideas, respectively, of making it easier for someone to commit a crime and enticing someone to commit a crime that never occurs o Ex: aiding a juvenile who is used in crime to limit someone's exposure to prosecution; soliciting a

prostitute; of the two, facilitation is closest to accomplice law. (6) Merely being present at a crime: o Collins v. State (GA): Mere presence at the commission of a crime does not render the spectator an accomplice. o Givens v. State (GA): Neither mere presence at the scene of the crime nor concealment of the crime makes one an accomplice.

(6) Corporate Criminal Liability y (1) Williams General Corporation v. Stone (GA) Liability: Person means an individual, a public or private corporation, an incorporated association, government, government agency, partnership, or unincorporated association. o A corporation may be convicted of a crime if the crime is authorized by board of directors or managerial officials acting within scope of their authority. y MPC 2.07 Liability of Corporations: (1) A Corp. may be convicted of the commission of an offense if: o (a) The offense is a violation or the offense is defined by a statute other than the code in which a legislative purpose to impose liability on corporations plainly appears and the conduct is performed by an agent of the corporation acting in behalf of the corporation within the scope of his office or employment o (b) The offense consists of an omission to discharge a specific duty of affirmative performance imposed on corporations by law; . . y GA Code Ann., 16-2-22: o (a) A corporation may be prosecuted for the act or omission constituting a crime only if  (1) The crime is defined by a statute which clearly indicates a legislative purpose to impose liability on a corporation, and an agent of the corporation performs the conduct which is an element of the crime while acting within the scope of his office or employment and in behalf of the corporation; or  (2) The commission of the crime is authorized, requested, commanded, performed, or recklessly tolerated by the board of directors or by a managerial official who is acting within the scope of his employment in behalf of the corporation. o (b) For the purposes of this Code section, the term:  (1) Agent means any director, officer, servant, employee, or other person who is authorized to act in behalf of the corporation. (2) Managerial official means an officer of the corporation or any other agent who has a position of comparable authority for the formulation of corporate policy or the supervision of subordinate employees. y (3) Vicarious Liability: A corporation is liable for the criminal offenses of its employee if the employee commits the crime both within the scope of his employment and with the intention of benefiting the corporation. The doctrine should also apply to those crimes containing mens rea requirements. The United States Supreme Court has endorsed this solution primarily for reasons of policy. The legal system must take the rights of all corporations as well as individuals into consideration. y (3) There are only two situations when corporate criminal liability can t be imposed: o (a) When crimes can t be punished by fines, since fines are the principle means for punishing a corporation, and o (b) When the crime, by its nature can t be committed by a corporation (ex: the crime of rape). IV. INCHOATE OFFENSES In General: y Definition: The inchoate offenses are solicitation, attempt, and conspiracy, and are frequently considered felonies. An inchoate offense is committed prior to and in preparation for what may be a more serious offense. It is a complete offense in itself, even if the crime hasn t been completed. y Six Stages of Committing a Crime: o (1) Conceives of the idea (Mental); o (2) Evaluates the idea (Mental);

(3) Forms intent to go forward (Mental); (4) Prepares to commit the crime (Action); (5) Commences commission (Action); (6) Completes the crime (Action). Generally: only after the third stage is a person liable for criminal punishment because both a men s rea and an actus rea are necessary for criminal liability for most crimes (except SL crimes). Doctrine of Merger:At common law under the doctrine of merger, inchoate offenses were regarded as misdemeanors; if the principal offense was carried out, they were considered felonies. o (a)The doctrine of merger has been abandoned in many jurisdictions in cases involving a conspiracy, allowing an accused to be convicted of both conspiracy and the principal offense. o (b) However, a DFcan t be convicted of either attempt or solicitationand the principle offense. o o o o o

(1) SOLICITATION:At common law it was a misdemeanor to solicit another to commit a felony or an act that would breach the peace or obstruct justice. Modern statues often retain the crime of solicitation, but some restrict it to the solicitation of certain serious felonies. y (1) MPC 5.02 Criminal Solicitation: A person is guilty of solicitation to commit a crime if with the purpose of promoting or facilitating its commission he commands, encourages or requests another person to engage in specific conduct that would constitute such crime or an attempt to commit such crime or which would establish his complicity in its commission or attempted commission. y (2) GA Code Ann., 16-4-7 Solicitation: o A person commits the offense of criminal solicitation when, (1) with intent that another person engage in conduct constituting a felony, he (2) solicits, requests, commands, importunes, or otherwise attempts to cause the other person to engage in such conduct. o A person convicted of the offense of criminal solicitation to commit a felony shall be punished by imprisonment for not less than one nor more than three years. A person convicted of the offense of criminal solicitation to commit a crime punishable by death or by life imprisonment shall be punished by imprisonment for not less than one nor more than five years. o It is no defense to a prosecution for criminal solicitation that the person solicited could not be guilty of the crime solicited. y (3) Actus Reus Completion: The offense of solicitation is complete at the time the solicitation is made. The person solicited doesn t have to agree to commit the crime or do anything in response. There is no lesser criminal offense, such as attempt to solicit a felony. o The actus reus of solicitation requires that words that actually try to get someone to commit a crime, not just approve of that crimes commission. o Norris v. State (GA) Clear and Present Danger: The criminal solicitation statute only embraces language which creates a clear and present danger that a felony will be committed. o English v. State (GA) Overt Statement: Only a relatively overt statement or request intended to bring about action on the part of another person will bring a DF within the solicitation statute.  Facts: English told his friend Steven Scott that he wanted two game wardens with the Georgia Department of Natural Resources killed. English complained that ranger Grady White and sergeant Joe Buice had charged him with several hunting violations, and that if the men were gone out of his life, he could not be indicted on the hunting charges. English brought the matter up frequently, and suggested different methods of killing the wardens, including running them off the road, poisoning, and shooting them. English asked Scott to commit the crimes because he felt Scott could get the job done to his satisfaction. English asked Scott to purchase a stolen, untraceable rifle. y (4) Theory of Merger: Solicitation exists only if the crime solicited hasn t been completed, attempted, or agreed to. Solicitation merges into the crime solicited if the crime is attempted or completed. o (a) Conspiracy: If the person solicited agrees to commit a crime, then both the solicitor and the party solicited are criminally liable for conspiracy. o (b) Attempt: If the person solicited attempts to commit the crime, then both parties are criminally liable for attempt. o (c) Crime: If the person solicited commits the crime, the solicitor would be liable for the crime as a party to the crime.

(5) Distinguished from Attempt and Party to a Crime: o (a) Party to a Crime: Criminal solicitation is different from being a party to a crime.  Brooks v. State (GA) Parties: The parties to a crime statute provides that there must be sufficient evidence to show that a person was a direct participant in the crime of attempt to commit murder and thus that he was concerned in the commission of a crime and not simply soliciting the commission of a crime. o (b) Attempt Distinguished: Generally, solicitation isn t an attempt to commit the crime solicited. This distinction is important in jurisdictions where there is no crime of solicitation or where the crime of solicitation doesn t extend to as many offenses as does the crime of attempt. (6) Defenses and Potential Defenses: o (a) Factual Impossibility Not a Defense: It isn t a defense that the solicitation couldn t have been successful, as where the person solicited was a police undercover agent. The culpability of the solicitor is measured by the circumstances, as they believed them to be. o (b) Withdrawal or Renunciation Not a Defense: Once the solicitation has been made, it is generally no defense that the solicitor changed their mind or countermanded their advice or urging. The MPC recognizes renunciation as a defense if the DF prevents the commission of the crime, such as by persuading the person solicited not to commit the crime. o (c) Exemption from Intended Crime is a Defense: If the DFcan t be guilty of the intended crime because of a legislative intent to exempt them, they would have a defense. For example: a minor female couldn t be found guilty of solicitation of statutory rape by urging a man to have intercourse with her, because she couldn t be guilty of the completed crime.

(2) ATTEMPT:A criminal attempt is an act that, although done with the intention of committing a crime, falls short of completing the crime. The English Ct. in Rexv. Scofield (1784)first recognized the crime of attempt. y (a) Justification for punishing attempted criminal acts: o (a) Consequentialist: Punishing wrongdoers has a positive effect on society. o (b) Deontological: Society should punish because a person who violates the rules deserves it. y (b) MPC 5.01 Attempt: A person is guilty of an attempt to commit a crime if, acting with the kind of culpability otherwise required for the commission of the crime, he: o (c) purposely does or omits to do anything which, under the circumstances as he believes them to be, is an act or omission constituting a substantial stepin a course of conduct planned to culminate in his commission of the crime. y (c) GA Code Ann., 16-4-1Attempt: A person commits the offense of criminal attempt when, with intent to commit a specific crime, he performs any act which constitutes a substantial step toward the commission of that crime. y (d) GA Code Ann., 16-4-2 Convictions: A person may be convicted of the offense of criminal attempt if the crime attempted was actually committed in pursuance of the attempt but may not be convicted of both the criminal attempt and the completed crime. o Sewell v. State (GA) Both: While a person can be convicted of criminal attempt upon proof of the completed offense, he may not be convicted of both criminal attempt and completed crime. y (e) GA Code Ann., 16-4-3 Charges: A person charged with commission of a crime may be convicted of the offense of criminal attempt as to that crime without being specifically charged with the criminal attempt in the accusation, indictment, or presentment. o Prosecution for Attempt: A DF charged with a completed crime may be found guilty of either the completed crime or an attempt to commit it if the evidence supports such a verdict. The reverse isn t true. A DF charged only with attempt may not be convicted of the completed crime. y (f) Cowart v. State (GA) Burden of Proof: If this defense is shown by the preponderance of the evidence in this case it would be the duty of the jury to find the DF not guilty of criminal attempt. (1) Elements of Attempt:The elements of attempt include: (a) specific intent to commit the crime, and (2) the performance of a substantial step toward its commission. y (a) Specific Intent (mens rea):The DF must have the intent to perform an act and obtain a result that, if achieved, would constitute a crime. o (1) Attempt requires Specific Intent: Regardless of the intent required for a completed offense,

an attempt always requires a specific intent. All inchoate crimes are specific intent crimes, and all specific intent crimes do not allow such states of mind as reckless, negligent, or strict liability.  Ex: attempted murder requires the specific intent to kill another person, even though the mens rea for murder itself doesn t require a specific intent to kill. o (2) Attempt to Commit Negligent Crimes is Logically Impossible: Negligent crimes can t be attempted, because if there was an intent to commit the crime, the appropriate offense would be attempt to intentionally commit the crime rather than attempt to negligently cause the harm. o (3) Attempt to Commit Strict Liability Crimes Requires Intent: Although a strict liability crime doesn t require criminal intent (mens rea), to attempt a strict liability crime the DF must act with the intent to bring about the proscribed result. (b) A Substantial Step Toward Commission (actus reus):The DF must have committed an act beyond mere preparation for the offense. o Several tests have been used to determine whether the act requirement has been met:  (1) Traditional Physical Proximity Test: this focuses upon space and time, establishes the "last act" standard which requires looking at the remaining steps. Under the typical proximity test, attempt requires an act that is dangerously close to success. y Ex: Pointing a loaded gun at an intended victim and pulling the trigger is sufficient under the proximity test, but going to the store to purchase bullets or even driving to the intended victim s house is insufficient.  (2) Probable Desistance Test: this considers whether the attempt would naturally lead to commission but for some timely interference not related to bad luck.  (3) Equivocality Test: this looks at whether the attempt can have no other purpose than commission of a crime.  (4) Majority & MPC, Substantial Steps Test: The MPC and most state statues require that the act or omission constitute a substantial step in the course of conduct planned to culminate in the commission of the crime. y English v. State (GA) Explanation: The substantial step toward the commission of a crime requirement, under criminal attempt statute, shifts the emphasis from what remains to be done to what the actor has already done; the fact that further steps must be taken before the crime can be completed does not preclude such a finding that the steps already undertaken are substantial. o Thurman v. State (GA) Preparation: Mere acts of preparation, not proximately leading to the consummation of the intended crime, will notsuffice to establish an attempt. The preparation consists in devising or arranging the means necessary for the commission of the offense; the attempt is the direct movement towards the commission after the preparations are made.

(2) Defenses to Liability for Attempt: y (a) Impossibility of Success:Factual impossibility traditionally has been distinguished from legal impossibility, and should be distinguished. o (1) Legal Impossibility is Always a Defense: Legal impossibility arises only when the DF did, or intended to do, acts that wouldn t constitute a crime under any circumstances. So defined, all states (and the MPC) will recognize this type of legal impossibility.  Ex: A goes to another state to buy fireworks to bring back into his state. A believes this is illegal, but it actually is not. None of the acts A committed and intended to commit constitutes a crime, so he can t be charged with an attempt based on those acts. o (2) Factual Impossibility is No Defense: Factual impossibility arises when some extraneous factor or outside force made it impossible to complete the crime. Most jurisdictions will not accept this as a DF.  Ex: A stops B on the street, points a gun at her, and asks her to hand over her money. A doesn t know that B has no money. A is guilty of attempted robbery. o (3) Distinguishing between Factual and Legal Impossibility: Courts traditionally have split on what is legal or factual impossibility, but for exam purposes the better view is that it is factual impossibility and not a defense, and legal impossibility should be defined narrowly.  Ask: If the DF were able to complete all of the acts that he intended to do, and if all of the attendant circumstances actually were as the DF believed them to be, would the DF

have committed a crime? The answer usually will be yes, in which case the impossibility is factual and not a defense. In the unusual case where the answer is no, the DF most likely has a legal impossibility defense. (b) Abandonment:The GA &MPC approach is that withdrawal will be a defense but only if:(1) It is fully voluntaryand for moral reasons, not just because of the risk of apprehension; and (2) It is a complete renunciation of the plan, not just a decision to postpone committing it or to find another victim. o GA Code Ann., 16-4-5 Abandonment:  (a) When a person's conduct would otherwise constitute an attempt to commit a crime under Code Section 16-4-1, it is an affirmative defense that he abandoned his effort to commit the crime or in any other manner prevented its commission under circumstances manifesting a voluntary and complete renunciation of his criminal purpose.  (b) A renunciation of criminal purpose is not voluntary and complete if it results from: y (1) A belief that circumstances exist which increase the probability of detection or apprehension of the person or which render more difficult the accomplishment of the criminal purpose; or y (2) A decision to postpone the criminal conduct until another time. o Commonwealth v. McCloskey (PA) Example: The prisoner was in a position to abandon the criminal offense of attempted prison breach voluntarily, thereby exonerating himself from criminal responsibility. o Cowart v. State (GA) Abandonment Rule:When a person's conduct would otherwise constitute an attempt to commit a crime it is an affirmative defense that he abandoned his effort to commit such a crime or in any other manner prevented its commission under circumstances manifesting a voluntary and complete renunciation of his unlawful purpose.

(3) CONSPIRACY (1) Introduction:A conspiracy is defined as an agreement between two or more persons to accomplish some criminal or unlawful purpose, or to accomplish a lawful purpose by unlawful means. The modern trend is to require that the object of the conspiracy be a specifically proscribed offense. However, many states retain the expansive common law notion by making it a crime to conspire to commit acts injurious to the public welfare. y (a) People v. Lauria (CA) Elements:2 Elements necessary to prove an agreement to conspire o (1) Knowledge (ordinarily a question of fact); o (2) Intent direct evidence of circumstances.  (a) May be inferred from knowledge when party has an interest in the venture.  (b) May be inferred when there is no legitimate use for the goods or services in question.  (c) May be inferred from the volume of business in grossly disproportionate to any legitimate activity or demand. y (b) MPC 5.03 Conspiracy: o (1) A person is guilty of conspiracy with another person or persons to commit a crime if with the purpose of promoting or facilitating its commission he:  (a) Agrees with such person or persons that they or one or more of them will engage in conduct that constitutes such crime or an attempt or solicitation to commit such crime;  (b) Agrees to aid such other person or persons in the planning or commission of such crime or of an attempt or solicitation to commit such crime. o (5) No person may be convicted of conspiracy to commit a crime other than a felony of the first or second degree, unless an overt act in pursuance of such conspiracy is alleged and proved to have been done by him or the person with whom he conspired. y (c) GA Code Ann., 16-4-8 Conspiracy:A person commits the offense of conspiracy to commit a crime when he together with one or more persons conspires to commit any crime and any one or more of such persons does any overt act to effect the object of the conspiracy. (2) Agreement requirement: Parties to a conspiracy must agree to accomplish the same objective by mutual action. The agreement doesn t have to be express. The existence of an agreement may be shown by a

concert of action on the part of the conspirators over a period of time under circumstances showing that they were aware of the purpose and existence of the conspiracy and agreed to participate in the common purpose. If multiple crimes and multiple parties are involved, there are often problems in deciding whether there is a single conspiracy or several smaller conspiracies. y (a) Scope and extent of the agreement necessary to establish a conspiracy: o (1) Kilgore v. State (GA) Express: To prove conspiracy, the state need not prove an express agreement between the coconspirators; it only must show that two or more persons tacitly came to a mutual understanding to accomplish or to pursue a criminal objective.  Johnson v. State (GA) Tactic (Implied): The agreement that forms the basis of a conspiracy may be a tacit (implied) understanding between conspirators. The evidence that one DF supplied the murder weapon and ammunition to the other DF and that they each accompanied each other to the victims' door, and they each attempted to assist each other when the victim resisted their attempts to rob him was evidence of the existence of a tacit agreement to use deadly force. . . o (2) Conduct of co-conspirators: i.e. conduct which discloses a common design may give rise to an inference of a conspiracy. o (3) Conspiracy may be shown through circumstantial evidence:  (1) Presence;(2) Companionship; and (3) Conduct before and after the commission of the alleged offenses may be considered by the jury and are circumstances which give rise to an inference of the existence of a conspiracy. y (c) Multiple Crimes: If there is an initial agreement among the parties to engage in a course of criminal conduct constituting all the crimes, then there is only one conspiracy. o Ex: A and B agree to commit one bank robbery each month for one year. Even though they plan to rob 12 banks, they are guilty of only one conspiracy. y (d) Implications of Requirement of Two or More Parties (bilateral theory): A conspiracy must involve an agreement between at least two independent personswho are actually committing themselves to the scheme. Under a bilateral theory, if one person in a two-party conspiracy is only feigning agreement (e.g. an undercover police officer), the other person can t be convicted of conspiracy (unless the MPC unilateral approach, discussed below, is followed). o (1) Effect of Acquittal of Other Conspirators: At common law, a conspiracy requires two guilty parties. Thus, in most courts, the acquittal of all persons with whom a DF is alleged to have conspired precludes conviction of the remaining DF. This rule doesn t apply where the other parties are not apprehended, are charged with lesser offenses, or are no longer being prosecuted. o (2) Compare Unilateral (MPC) Approach: Under the MPC s unilateral approach, conspiracy is established by showing that the DF agreed with another to commit the crime, regardless of whether the other person agreed; it is not necessary to show an actual agreement between two or more persons. Thus, the fact that all the other parties to the conspiracy have been acquitted or were only feigning agreement will not prevent the DF s conviction. o People v. Foster (IL): Conspiracy is a bilateral matter. o Richardson v. State (GA): The State may prove a conspiracy by showing that two or more persons tacitly came to a mutual understanding to pursue a criminal objective, and the conspiracy may be inferred from the nature of the acts done, the relation of the parties, the interest of the alleged conspirators, and other circumstances. (3) Mens Rea Specific Intent: Conspiracy is a specific intent crime. There are two different intents that are necessary: (1) intent to agree and (2) intent to achieve the object of the conspiracy. y (1) Intent to agree: It is very difficult to separate the intent to agree from the act of agreement. Hence, most courts don t even try. For bar exam purposes, the only thing that s important to remember is that the intent to agree can be inferred from conduct. o (a) May be inferred from knowledge when party has an interest in the venture. o (b) May be inferred when there is no legitimate use for the goods or services in question. o (c) May be inferred from the volume of business in grossly disproportionate to any legitimate activity or demand. y (2) Specific Intent to Achieve Objective: The DF must intend to achieve the objective of the conspiracy. This intent must be established as to each individual DF. Under the common law approach, a minimum

of two persons must intend to achieve the same purpose. i.e. there must be a meeting of guilty minds. o Ex: A, B, and C agree to steal D s car, but only A and B intend to keep it permanently. C intends to return it to D. Only A and B are guilty of conspiracy to commit larceny, because only they had the intent to permanently deprive D of his car. If only A intended it, and both B and C intended to return the car, then A couldn t be liable for conspiracy to commit larceny. (3) Conspiracy to Commit Strict Liability Crimes: Conspiracy is a specific intent crime. Therefore, in most jurisdictions, a conspiracy to commit a strict liability crime (for which intent is not required) requires intent. o Ex: A and B agree on a scheme to persuade C, a 12 yr old girl, to have intercourse with one of them. They believe she was 21, but this would not be a defense to statutory rape. They can t be convicted of conspiracy to commit statutory rape because it requires knowledge of the victim s age even though the completed crime does not.

(4) Actus Reus - Overt Act: Traditionally, the conspiracy was complete when the agreement with the requisite intent was reached. This is still the law in some states. However, most states require that an act in furtherance of the conspiracy be performed. If an overt act is required, any act in pursuit of the conspiracy will suffice, even an act of mere preparation. The act may be performed by any one of the conspirators. y Ex: A, B, and C agree to rob a bank. A, unbeknownst to B and C, rents a car to be used in the getaway. If an overt act is required, the renting of a car is sufficient. y People v. Carter (MI) Traditional: The crime of conspiracy is complete upon the formation of the agreement to commit the underlying crime. y Mikell v. State (GA) Overt Act: The term overt act refers to an open or manifest act made in furtherance of a conspiracy to commit a crime. (5) Defense y GA Code Ann. 16-4-9 Withdrawal:A co-conspirator may be relieved from the effects of Code Section 16-4-8 if he can show that before the overt act occurred he withdrew his agreement to commit a crime. (6) Other Conspiracy Matters y (a) No Merger Conviction for Conspiracy and Completed Crime: Under the old rule, if the conspirators were successful and completed their crime, the crime of conspiracy merged into the completed crime. While the members of the agreement could be convicted of the completed crime, they couldn t be convicted of the conspiracy. This is no longer the law in most jurisdictions. Now, if the conspirators are successful, they can be convicted of both criminal conspiracy and the crime they committed pursuant to the conspiracy. y (b) Liability of Conspirators as Accomplices: Because of one conspirator s participation in the scheme, he might be liable as an accomplice for crimes committed by other conspirators. Even if the conspirator didn t have the sufficient mental state for accomplice liability, a separate doctrine provides that each conspirator may be liable for the crimes of all other conspirators if two requirements are met: o (1)The crimes were committed in furtherance of the objectives of the conspiracy; & o (2) The crimes were a natural and probable consequence of the conspiracy, i.e. foreseeable. o This doctrine only applies if the conspirator hasn t made a legally effective withdrawal from the conspiracy before the commission of the crime by the co-conspirator. o Burke v. State (GA) Probable Consequence:It is not necessary that the crime of murder should be a part of the original design; but it is enough if it be one of the incidental probable consequences of the execution of their design, and should appear at the moment to one of the participants to be expedient for the common purpose. The intent of the actual slayer is imputable to his coconspirators.  Where two or more persons conspire to rob another who is employed in a building, and one of the conspirators keeps watch or guard at a convenient distance while the others enter the building and, in furtherance of the common design to rob, kill the person intended to be robbed, such killing is a probable consequence of the unlawful design to rob, and all the conspirators are guilty of murder, including the one on guard. y (c) Attempt distinguished: In attempt cases, the law requires that there be a substantial step towards

commission of the crime. In conspiracy cases, an overt act is normally sufficient to constitute the crime. Hence, in conspiracy cases, the law intervenes at an earlier stage than the planning of the crime. o Rationale: The secret activity is potentially more dangerous to society and, since a group is involved, it s more difficult for one person to stop the activity once the agreement is made. V. BURDENS OF PROOF Burdens of proof: y The burden of proof is the obligation on a party to establish the facts in issue in a case to the required degree of certainty (the standard of proof) in order to prove their case. y (1) Reasonable suspicion: Lowest standard used by police to support stop and frisk incidents. y (2) Probable cause: This level of proof is used at preliminary hearings and in requests for search or arrest warrants. This means that there is "a fair probability that a matter is true, i.e. evidence may be found in a home, or that an arrest should be made. y (3) Preponderance of evidence:This is the lowest level of trial proof, and is used mainly in civil trials. This means that the proposition is more likely to be true than not true. y (4) Clear and convincing evidence:Clear and convincing means that the proof is substantially more likely than not that the thing is in fact true. This higher level of burden of persuasion sometimes employed in both civil and criminal procedure. y (5) Beyond a reasonable doubt: This is the highest level of proof, used mainly in criminal trials. This is doubt based on reason and common sense and typically uses phrases such as fully satisfied or entirely convinced in an effort to quantify the standard of proof. The standard of proof is not absolute certainty. Burden of proof cases y (1) Spradlin v. State (GA) Shifting Burdens: The burden of proof never shifts to the defendant in a criminal case, and the state always has the complete burden of establishing the defendant's guilt beyond a reasonable doubt. y (2) Jones v. State (GA) Improper Burden: By suggesting that the jury was authorized to convict based upon an honest belief of guilt, the trial court effectively and improperly authorized the jurors to convict upon the preponderance standard used in civil trials rather than the reasonable doubt standard required in criminal prosecutions. VI. AFFIRMATIVE DEFENSES What is an affirmative defense? y Definition: An A.DF is one that admits the doing of the act charged, but seeks to justify, excuse, or mitigate it. All of the elements or parts of the crime are admitted to with the exception of intent. o (a)The DF must produce evidence to support his defense. However, GA case law expressly states that the burden of persuasion as to all issues in a criminal case always remains with the state. o (b)Once pled by the DF, the standard that the state must reach is that the defense is disproved beyond a reasonable doubt. The state has the burden of proof with respect to an A.DF. y OCGA 16-1-3 Affirmative Defense: o (1) Affirmative defense means, with respect to any affirmative defense authorized in this title, unless the state's evidence raises the issue invoking the alleged defense, the defendant must present evidence thereon to raise the issue. The enumeration in this title of some affirmative defenses shall not be construed as excluding the existence of others. o (13) Property means anything of value, including but not limited to real estate, tangible and intangible personal property, contract rights, services, choses in action, and other interests in or claims to wealth, admission or transportation tickets, captured or domestic animals, food and drink, and electric or other power. o 16) Reasonable belief means that the person concerned, acting as a reasonable man, believes that the described facts exist. y May v. State (GA) Burden on DF: The initial burden of producing evidence to support an affirmative defense rests upon the defendant charged with the offense.

Cheesman v. State (GA) Burden on DF: The responsibility of producing evidence of an affirmative defense is placed squarely on the DF unless the state's evidence raised the issue. Bishop v. State (GA) Shifting Burden: When a DF raises an affirmative defense and offers evidence in support thereof, the State has the burden of disproving that defense beyond a reasonable doubt. o

Affirmative Defenses in Georgia: y (A) Justification OCGA 16-3-20 o (a) Self Defense OCGA 16-3-21  (1) Defense of Self or Others  (2) To prevent crime  (3) Battered women defense and others o (b) Defense of habitation OCGA 16-3-21 o (c) Defense of property (other than habitation) OCGA 16-3-24 y (B) Excuse, Coercion OCGA 16-3-28 y (C) Other defenses o (a) Entrapment OCGA 16-3-28 o (b) Accident OCGA 16-2-2 o (c) Mistaken belief (property theft) OCGA 16-8-10 o (d) Abandonment OCGA 16-4-5 y (D) Lack of Criminal Capacity o (a) Insanity & Delusional Compulsion OCGA 16-3-2 & 16-3-3 o (b) Intoxication Defense y (E) Alibi Defense (1) JUSTIFICATION y (1) Definition: Under certain circumstances, the commission of a proscribed act is viewed by society as justified and hence not appropriate for criminal punishment. y (2) MPC Rules on Justification: o MPC 3.01 Justification an A.DF: (1) In any prosecution based on conduct that is justifiable under this Article, justification is an affirmative defense. o MPC 3.02 Justification Generally: (1) Conduct that the actor believes to be necessary to avoid a harm or evil to himself or to another is justifiable, provided that:  (a) the harm or evil sought to be avoided by such conduct is greater than that sought to be prevented by the law defining the offense charged; and  (b) neither the Code nor other law defining the offense provides exceptions or defenses dealing with the specific situation involved; and  (c) a legislative purpose to exclude the justification claimed does not otherwise plainly appear. y (3) OCGA 16-3-20 Justification: The fact that a person's conduct is justified is a defense to prosecution for any crime based on that conduct. o Must prove Aggressor: A person claiming a justification defense must make a prima facie showing that the victim was the aggressor before evidence of the victim's specific acts of violence against the defendant will be admitted. Merely showing the victim's propensity for violence against third persons is insufficient. o Jury question: The question of whether a DF s conduct was justified is one for the jury. (A) Self Defense defense of self/others, crime prevention y Ga. Code Ann., 16-3-21 Self Defense:(a) A person is justified in threatening or using force against another when and to the extent that he or she reasonably believes that such threat or force is necessary to defend himself or herself or a third person against such other's imminent use of unlawful force. o However, except [in the defense of his habitation], a person is justified in using force which is intended or likely to cause death or great bodily harm only if he or she reasonably believes that such force is necessary to prevent death or great bodily injury to himself or herself or a third person or to prevent the commission of a forcible felony.

(1) Defense of Self or Others y (a) Non-deadly Force: Generally, an individual without fault may use such force as reasonably appears necessary to protect against the imminent use of unlawful force upon herself or a third person y (b) Deadly Force: A person may use deadly force in self-defense if they reasonably believe that such force is necessary to prevent death or great bodily injury to himself or a third person o (1) Without Fault: A person who has initiated an assault or provoked the other party will be considered the aggressor. o (2) Threat of Imminent Death or Great Bodily Harm: The DF must reasonably believe that she is faced with imminent death or great bodily harm if she doesn t respond with deadly force. The danger of harm must be a present one. There is no right to use deadly force if harm is merely threatened at a future time or the attacker has no present ability to carry out the threat.  Ex: A, who has his arms tied behind his back, says to D, I am going to kill you. D pulls out a gun and shoots A. No self-defense. o (3) Thomas v. State (GA): Whether the evidence shows that a person had a reasonable belief that deadly force was necessary in self-defense is a question for the jury. y (c) Duty to Retreat: The majority rule is that there is no duty to retreat. A person (other than the initial aggressor) may use deadly force in self-defense even if this could be avoided by retreating. o Ga. Code Ann., 16-3-23.1 No Retreat Law:A person who uses threats or force in accordance with relating to the use of force in defense of self or others,[defense of habitation statute] relating to the use of force in defense of a habitation, or relating to the use of force in defense of property other than a habitation, has no duty to retreatand has the right to stand his or her ground and use force as provided in said Code sections, including deadly force. y (d) Right of Aggressor to Use Self-Defense: Generally, one who begins a fight has no right to use force in their own defense during that fight. But an aggressor can regain their right to use self-defense when: o (1) Withdrawal: She, in good faith, effectively removes herself from the fight, and communicates to the other person her desire to remove herself, regains a right to use self-defense. o (2) Sudden Escalation: If the victim of the initial aggression suddenly escalates a minor fight into on involving deadly force and does so without giving the aggressor the chance to withdraw, the aggressor may use force in her own defense. o (3) Coker v. State (GA): A person isn t justified in using force if he was the aggressor or was engaged in agreed combat. A mutual combatant who withdraws may be justified in using force if the other combatant continues or threatens to use unlawful force, despite the withdrawal. y (e) Defense of Others Reasonable Belief Needed: If the person aided didn t have a legal right to use force, does the DF still have a defense? In a majority of states, yes, because all that s necessary for the defense is the reasonable appearance of the right to use force. However, in a minority of jurisdictions, the answer is no because the DF steps into the shoes of the person she defends and therefore has no defense if that person had no legal right to use force in self-defense. (2) Crime Prevention y (a) Non-deadly Force: Generally, one is privileged to use force to the extent that it reasonably appears necessary to prevent a felony, riot, or other serious breach of the peace, although some states (e.g. California) have extended this to the prevention of any crime. y (b) Deadly Force: The traditional rule was that deadly force could be used to prevent the commission of any felony, but the modern view is that deadly force may be used only if the crime is a dangerous felony involving risk to human life. This would include robbery, arson, burglary of a dwelling, etc. (B) Defense of Habitation: y Ga Code. Ann., 16-3-23 Defense of Habitation:A person is justified in threatening or using force against another when and to the extent that he or she reasonably believes that such threat or force is necessary to prevent or terminate such other's unlawful entry into or attack upon a habitation o Hammock v. State (GA): For purposes of habitation defense, a person's habitation can be a particular space in a jointly-occupied dwelling provided that such person has obtained the right to occupy that space and exclude his co-inhabitants there from.

(a) Non-deadly Force: A person is justified in the use of non-deadly force in defense of her dwelling when, and to the extent that, she reasonably believes that such conduct is necessary to prevent or terminate another s unlawful entry into or attack upon her dwelling. (b) Deadly Force: One is generally justified in the use of deadly force in two situations: o (1) Violent Entry Plus Personal Danger: Use of deadly force is justifiable where the entry was made or attempted in a violent manner andthey reasonably believe that the use of force is necessary to prevent a personal attack upon herself or another in the dwelling. o (2) Felony: Use of deadly force is also justifiable whena person reasonably believes it s necessary to prevent entry by someone who intends to commit a felony in the dwelling.  Bishop v. State (GA): Statute justifying use of deadly force to protect a habitation when inhabitant reasonably believes that entry is being made for purpose of committing a felony didn t justify homicide caused by spring gun which DF erected at front door of his trailer to prevent break-ins, because it was impossible for DF to form a reasonable belief because he was absent from trailer at time of attempted entry.

(C) Defense of Other Property: y GA Code Ann., 16-3-24:A person is justified in threatening or using force against another when and to the extent that he reasonably believes that such threat or force is necessary to prevent or terminate such other's trespass on or other tortuous or criminal interference with real property other than a habitation or personal property: y (a) Non-deadly Force: Non-deadly force may be used to defend property in one s possession from unlawful interference. o Ex: In the case of real property, this means entry or trespass; In the case of personal property, this means removal or damage. o Imminent: The need to use force must reasonably appear imminent. Thus, force may not be used if a request to desist or refrain from the activity would suffice. o Possession: In addition, the right is limited to property in one s possession. Force can t be used to regain possession of property wrongfully taken, unless the person using it is in imminent pursuit of the taker. y (b) Deadly Force May Not Be Used: Defense of property alone can never justify the use of deadly force. A person may use deadly force in the defense of property generally only in conjunction with another privileged use of force, e.g. self-defense, defense of others, or to effectuate an arrest. (D) Battered Women Defense y (a) Definition: The battered woman defense is a defense used in court that the person accused of an assault or murder was suffering from battered person syndrome at the material time. y (b) A jury instruction on justification should be given when warranted by the evidence and requested by the defendant. The evidence must be more than an expert witness's opinion that the defendant suffers from the battered person syndrome. Among the factors to consider are o (1) evidence of a close personal relationship between the defendant and victim; o (2) a pattern of physical, sexual, or psychological abuse; and o (3) a reasonable apprehension of harm. (E) Necessity: y Rule: Conduct otherwise criminal is justifiable if, as a result of pressure from natural forces, the DF reasonably believed that the conduct was necessary to avoid some harm to society that would exceed the harm caused by the conduct. o Objective: The test is objective; a good faith belief in the necessity of the conduct is insufficient. o Property: Causing the death of another person to protect property is never justified. o Fault: The defense of necessity isn t available if the DF is at fault in creating a situation that requires that she choose between two evils. o Ex: Throwing cargo overboard during a violent storm, if necessary to save the lives of the crew and other people on a ship, wouldn t be criminal damage to property. On the other hand, throwing some crew members overboard to save cargo would never be justifiable.

(a) Duress Distinguished: While duress involves a human threat, necessity involves pressure from physical or natural forces. o Ex: A points a gun at B and threatens to kill B if she doesn t break into C s house and steal food. B does as she is told. B has a defense of duress. However, if B is a starving victim of a plane crash in a desolate area and commits the same act, she has the defense of necessity.

(F) Domestic Authority: y The parents of a minor child, or any person in loco parentis with respect to that child, may lawfully use reasonable force upon the child to promoting the child s welfare. Whether or not the force is reasonable is judged by the totality of the circumstances, including the age, sex, and health of the child. (B) THE EXCUSE OF COERCION OR DURRESS y Rule: If someone is under the threat of imminent infliction of death or great bodily harm, they won t be guilty if they perform an otherwise criminal act (except for homicide), o Note: An act committed under duress is excusable not justifiable. The distinction comes from the fact that crimes performed under duress are condoned by society rather than encouraged. y OCGA 16-3-26 Coercion:A person is not guilty of a crime, except murder, if the act upon which the supposed criminal liability is based is performed under such coercion that the person reasonably believes that performing the act is the only way to prevent his imminent death or great bodily injury. o Caveat: The actor must reasonably believe that death or great bodily harm will be inflicted on himself or on a member of his immediate family if he doesn t perform such conduct. Threats to harm any 3rd person may also suffice. o Thomas v. State (GA) Immediate threat: To apply the defense of coercion, there must be evidence of a threat of immediate violence at the time of the commission of the crime, not simply a threat of violence or danger in the future.

(C) OTHER DEFENSES (1) Entrapment: y (a) Definition: Entrapment occurs whenever a police officer or other government agent induces a person into committing a crime they had no prior intention of committing. It s presumed that the legislature didn t intend to cover the conduct, so it s not criminal. y (b) GA Code Ann., 16-3-25 Entrapment:A person is not guilty of a crime if, by entrapment, his conduct is induced or solicited by a government officer or employee, or agent of either, for the purpose of obtaining evidence to be used in prosecuting the person for commission of the crime. o Entrapment exists when the idea and intention of the commission of the crime originated with a government officer or employee, or with an agent of either, and he, by undue persuasion, incitement, or deceitful means, induced the accused to commit the act which the accused would not have committed except for the conduct of such officer. o Lightsey v. State (GA) State s Burden: If a DF presents a prima facie case of entrapment, then the State must disprove entrapment beyond a reasonable doubt; whether the state has satisfied this burden generally rests with the jury and only when there is no conflict in the evidence and all evidence demands a finding of entrapment must the trial judge direct a verdict of acquittal. y (c) Entrapment consists of three distinct elements: o (1) The idea for the commission of the crime must originate with the state agent; o (2) The crime must be induced by the agent's undue persuasion, incitement, or deceit; and o (3) Maldonado v. State (GA): The DF must not be predisposed to commit the crime. y (d) Nuances to entrapment: o (1) Offering Opportunity to Commit Crime Distinguished: It s not entrapment if the officer merely provides the opportunity for the commission of a crime by a DF otherwise ready and willing to commit it.  Ex: A, an undercover police agent, poses as a narcotics addict in need of a fix. B sells narcotics to A. Held: B does not have the defense of entrapment. By posing as an addict,

A merely provided an opportunity for B to commit the criminal sale. (2) Inapplicable to Private Inducements: A person can t be entrapped by a private citizen. Inducement constitutes entrapment only if performed by an officer of the government or one working for him or under his control or direction. (3) Practical Difficulties of Entrapment: When there is extended inducement by the government, the issue becomes whether the DF was predisposed to commit the offense or whether the intent to commit it was instilled by the officers. Predisposition must exist prior to the government s initial contact with the DF. A mere inclination to engage in the illegal activity isn t enough (Jacobson v. US).  However: even if predisposition isn t proved, the introduction by the prosecution of potentially damaging evidence on the issue of the DF s predisposition may cause a jury to convict on the basis of the extensive evidence of the DF s culpable state of mind.

(2) Accident: y Ga. Code Ann., 16-2-2 Accident:A person shall not be found guilty of any crime committed by misfortune or accident where it satisfactorily appears there was no criminal scheme or undertaking, intention, or criminal negligence. o Noble v. State (GA): "Accident" is an affirmative defense where a DF must establish that she acted without criminal intent and was not engaged in a criminal scheme, and that her actions did not show an utter disregard for the safety of others who might reasonably be expected to be injured thereby. (3) Mistaken Belief Claim of Right Defense Involving Theft of Property or Services y GA Code Ann., 16-8-10 Claim of Right:It is an affirmative defense to a prosecution for violation of [crime of theft of property or theft of services] that the person: o (1) Was unaware that the property or service was that of another; o (2) Acted under an honest claim of right to the property or service involved or under a right to acquire or dispose of it as he did; or o (3) Took property or service exposed for sale intending to purchase and pay for it promptly or reasonably believing that the owner, if present, would have consented. It is an affirmative defense to a prosecution for violation of [theft of property crimes] that the person: y Edens v. State (GA) Example: The method appellant used to reclaim the motorcycle was legally deficient, the evidence as found by the trial court nonetheless establishes that appellant did not possess the requisite criminal intent when he took the motorcycle, since he was acting on what he thought was an honest claim of right to the property or to acquire the property as he did. (4) Abandonment: y (1) Definition: Abandonment" is an affirmative defense that requires a voluntary and complete renunciation of criminal purpose. y (2) OCGA 16-4-5 Abandonment: o (a) When a person's conduct would otherwise constitute an attempt to commit a crime under [attempt to commit a crime statute], it is an affirmative defense that he abandoned his effort to commit the crime or in any other manner prevented its commission under circumstances manifesting a voluntary and complete renunciation of his criminal purpose. o (b) A renunciation of criminal purpose is not voluntary and complete if it results from:  (1) A belief that circumstances exist which increase the probability of detection or apprehension of the person or which render more difficult the accomplishment of the criminal purpose; or  (2) A decision to postpone the criminal conduct until another time. y (3) Allen v. State (GA) Abandonment: When a person's conduct would otherwise constitute an attempt to commit a crime under attempt to commit a crime statute, it is an affirmative defense that he abandoned his effort to commit the crime. (5) Forgiveness by Injured Party No Defense

Forgiveness by the injured party after the crime has been committed ordinarily doesn t operate as a defense to the commission of a crime, unless a statute establishes such a defense. o Ex 1: Forgiveness by an assault victim wouldn t bar a criminal prosecution of the perpetrator. o Ex 2: Some statutes provide that marriage of the parties will bar a prosecution for seduction.

(6) Criminality of Victim No Defense y Rule: The near universal rule is that illegal conduct by the victim of a crime is no defense. o Ex: A, defrauds B in a real estate deal knowing that B has amassed a fortune through illegal gambling. B s unlawful gambling activity doesn t provide A with a defense to fraud. (D) LACK OF CRIMINAL CAPACITY (1) Insanity y Definition: The insanity defense exempts certain DFs because of the existence of an abnormal mental condition at the time of the crime. o Note: insanity is a legal term rather than a psychiatric one. Furthermore, insanity is a generic term comprising many possible mental abnormalities, all of which have only one thing in common: they are recognized by law as dictating certain legal consequences. o 4 Tests:1. Traditional M Naghten Rule, 2. Irresistible Impulse test; 3. Durham (or New Hampshire) Test, and 4. The American Law Institute or MPC test. (1) M Naghten Rule (Right or Wrong Test): y The traditional M Naghten rule provides that a DF is entitled to an acquittal if the proof establishes that: o (a) A disease of the mind o (b) Caused a defect of reason o (c) Such that the DF lacked the ability at the time of his actions to either:  (1) Know the wrongfulness of his actions; or  (2) Understand the nature and quality of his actions. y (2) Application of M Naghten Rule o (a) Defendant with Delusions: If DF suffered from delusions (false beliefs), the court will determine if his actions would have been criminal if the facts had been as he believed them to be.  Ex: Because of a mental illness, A believed B wanted to kill him. A killed B. A isn t entitled to an acquittal on insanity grounds because even if A s delusion had been accurate, he wouldn t have been legally entitled to kill B just b/c B wanted to kill him. o (b) Belief that Acts are Morally Right: A DF isn t entitled to an acquittal just because he believes his acts are morally right, unless he s lost the capacity to recognize that they re regarded by society as wrong. o (c) Inability to Control Oneself: Under the traditional interpretation given to the M Naghten rule, it s irrelevant that the DF was unable to control himself and avoid committing the crime. (2) MPC 4.01 Substantial Capacity test: A person is not responsible for criminal conduct if at the time of such conduct as a result of mntal disease or defect he lacks substantial capacity either to appreciate the criminality [wrongfulness] of his conduct or to conform his conduct to the requirements of law. y Elements: Under this test, the DF is entitled to an acquittal if the proof shows that he suffered from a mental disease or defect and as a result lacked substantial capacity to either: o (1) Appreciate the criminality (wrongfulness) of his conduct; or o (2) Conform his conduct to the requirements of the law. y Courts: All federal courts and about half of the state courts have the MPC s substantial capacity test. This test provides a broader, more encompassing definition of insanity than the traditional M Naghten rule. Under this test, DFs pleading insanity only have to show that they re mostly unable to function mentally. (3) Georgia Insanity Rule: y (1) GA follows the M Naghten Rule: Georgia only recognizes these two definitions of insanity, no matter what the DF s diagnosis, the DF will have to show that the mental illness: (1) deprived them of the ability

to know the difference between right and wrong [insanity], or (2) overpowered his or her will to resist the temptation to perform the act [delusional compulsion]. (2) OCGA 16-3-2 Insanity:A person shall not be found guilty of a crime if, at the time of the act, omission, or negligence constituting the crime, the person did not have mental capacity to distinguish between right and wrong in relation to such act, omission, or negligence. (3) Ga. Code Ann., 16-3-3 Delusional Compulsion: A person shall not be found guilty of a crime when, at the time of the act, omission, or negligence constituting the crime, the person, because of mental disease, injury, or congenital deficiency, acted as he did because of a delusional compulsion as to such act which overmastered his will to resist committing the crime. o Webb v. State (GA): Finding of insanity requires proof that: (1) the DF acted under a delusional compulsion, (2) the criminal act was connected with the delusion, and (3) the delusion related to a fact which, if true, would have justified the act. (4) Exclusion of Psychopaths: Many formulations (including the ALI/MPC test) expressly exclude the psychopathic criminal person the person who repeatedly commits crimes without experiencing guilt. o This is usually accomplished by defining mental illness so as to exclude any abnormality evidenced only by repeated antisocial conduct.

Insanity Nuances y (1) Burdens of Proof: o (a) Presumption of Sanity and Burden of Producing Evidence: All DFs are presumed sane. Proof of sanity isn t an element of the Prosecution s case. The insanity issue isn t raised until the DF comes forward with evidence tending to show that he was insane under the applicable test. o (b) Burden of Persuasion: In some jurisdictions and under the MPC, once the issue has been raised, the prosecution must prove the DF was sane beyond a reasonable doubt. In GA, the DF must prove his insanity by a preponderance of the evidence. Federal courts require the DF to prove insanity by clear and convincing evidence.  Foster v. State (GA): A DF claiming insanity has the burden of proving this affirmative defense by a preponderance of the evidence. y (2) DF s Findings: A DF who raises insanity may be found: (1) guilty, (2) not guilty, (3) not guilty by reason of insanity, or (4) guilty but mentally ill, or (5) guilty but mentally retarded. o (a) Guilty but Mentally Ill/Retarded: If found guilty but mentally ill/retarded, DF will be placed in the custody of the Department of Corrections which will have responsibility for the evaluation and treatment of the DF s mental health needs, which may include, at the discretion of the Department of Corrections referral for temporary hospitalization at a facility operated by the Department of Human Resources. y (3) After Acquittal Committed Until Cured: In most states, after acquittal due to insanity, the DF may be committed to a mental institution until cured. In some jurisdictions, DF is committed only if it s proven that they re presently mentally ill and dangerous. In others, commitment is automatic. o (b) Confinement May Exceed Maximum Period of Incarceration Carried by Offense: The confinement of an insanity acquittee in a mental hospital may last until he has regained his sanity or he is no longer dangerous.  Due Process: This does not deny due process even if the result is confinement for a period longer than the maximum period of incarceration carried by his offense. y (4) Refusal to Participate in Psychiatric Examinations: If the DF doesn t put his mental state in issue and doesn t plan to use an insanity defense, he may refuse to participate in a court-ordered psychiatric exam to determine competency to stand trial. (2) Intoxication Defense y Brand v. State (GA) Intoxication: If one voluntarily becomes intoxicated by the use of a drug, this won t excuse him for the commission of a crime. o But if mania or insanity, though caused by the use of a drug, be permanent and fixed in character, so as to destroy the knowledge of right and wrong as to the act, the person laboring under such infirmity will not be responsible. Such a defense must amount to a plea of insanity at the time of the commission of the act.

Relationship to Insanity: Intoxication and insanity are two separate defenses. However, continuous, excessive drinking or drug use may bring on actual insanity (e.g. delirium tremens). Thus, a DF may be able to claim both an intoxication defense and an insanity defense.

(E) ALIBI DEFENSE y Definition: Alibi is not truly an independent affirmative defense. It is simply evidence in support of a DF s plea of not guilty and should be treated as evidence tending to disprove one of the essential factors in the case of the prosecution, that is, presence of the DF at the time and place of the alleged crime. y (1) GA Code Ann., 16-3-40 Alibi:The defense of alibi involves the impossibility of the accused's presence at the scene of the offense at the time of its commission. The range of the evidence in respect to time and place must be such as reasonably to exclude the possibility of presence. y (2) GA Code Ann., 17-16-5 Procedure:Upon written demand by the prosecuting attorney within ten days after arraignment, or at such time as the court permits, stating the time, date, and place at which the alleged offense was committed, the DF shall serve within ten days of the demand of the prosecuting attorney or ten days prior to trial, whichever is later, or as otherwise ordered by the court, upon the prosecuting attorney a written notice of the DF s intention to offer a defense of alibi. o Such notice by the DF shall state the specific place or places at which the DF claims to have been at the time of the alleged offense and the names, addresses, dates of birth, and telephone numbers of the witnesses, if known to the DF, upon whom the DF intends to rely to establish such alibi unless previously supplied. VII. OFFENSES AGAINST THE PERSON (A) HOMICIDE: At common law, homicides were divided into three classifications: o (a) Justifiable homicides (those commanded or authorized by law); o (b) Excusable homicides (those for which there was a defense to criminal liability); and o (c) Felonious homicides (1) GENERAL ISSUE TIME OF DEATH y (1) Common Law Requirement Year and a Day Rule: The death of the victim must occur within one year and one day from the infliction of the injury or wound. If it doesn t occur within this time period, there can be no prosecution for homicide, even if it can be shown that but for the DF s actions, the victim would not have died as and when he did. o Criticized: The rule has been sharply criticized by the US Supreme Court as an outdated relic of the common law, and most of the states that have recently reviewed the rule have abolished it. y (2) The following facts and circumstances, among others, may be utilized in the circumstances of a given case to prove time of death: o (1) The absence of circulation and respiration o (2) Irreversible and total cessation of brain function, as measured by a flat or isoelectric electroencephalogram o (3) Unreceptivity and unresponsiveness to externally applied stimuli, no movements or breathing, no reflexes, and an isoelectric or flat electroencephalogram confirmed 24 hours apart o (4) The existence of a permanent vegetative state with no likelihood of return to any cognitive and sapient existence o (5) A lack or failure of one or more vital organs to perform its proper function as determined by generally accepted and prevailing medical standards y (3) People v. Eulo (NY): Measurement of death o Ordinarily, death will be determined according to the traditional criteria of irreversible cardiorespiratory repose. However, when the respiratory and circulatory functions are maintained by mechanical means, their significance, as signs of life, is at best ambiguous. Under such circumstances, death may nevertheless be deemed to occur when, according to accepted medical practice, it is determined that the entire brain's function has irreversibly ceased. y (4) The definition of death varies among the authorities: o (1) Black s Law: The cessation of life; the ceasing to exist; defined by physicians as a total

stoppage of the circulation of the blood, and a cessation of the animal and vital functions consequent thereon, such as respiration, pulsation, etc. o (2) State v. Williams (GA): A person may be pronounced dead if it is determined that the person has suffered an irreversible cessation of brain function, o (3) Webster s: The cessation of all vital functions without capability of resuscitation ... General death is of two kinds: death of the body as a whole (somatic or systemic death), and death of the tissues. By the former is implied the absolute cessation of the functions of the brain, the circulatory and respiratory organs; by the latter the entire disappearance of the vital actions of the ultimate structural constituents of the body. (5) OCGA 31-10-16, Time of death: A person may be pronounced dead by a qualified physician, by a registered professional nurse or by a physician assistant authorized to make a pronouncement of if it is determined that the individual has sustained either o (1) Irreversible cessation of circulatory and respiratory function or o (2) Irreversible cessation of all functions of the entire brain, including the brain stem.

(2) COMMON LAW & MPC MURDER& MANSLAUGHTER:At common law (and in the MPC), criminal homicides were subdivided into 3different offenses: y (1) Murder:At common law, Murder is the unlawful killing of another human being with malice aforethought. Malice aforethought may be express or implied (see GA section). o (a) MPC Section 210.1:A person is guilty of criminal homicide if he purposely, knowingly, recklessly or negligently causes the death of another human being.  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 robbery, rape by force or intimidation, arson, burglary, kidnapping or felonious escape o State v. Guthrie (WVA): The problem in defining homicide: At common law  (1) The common law definition of malice aforethought was extremely flexible.  (2) There were no degrees of murder. If the DF had no overwhelming provocation to kill, he was equally guilty whether he carried out his murderous intent at once or after mature reflection.  (3) The meaning of premeditated as used in statutes was essentially knowing and intentional. Courts have consistently recognized that the premeditation can be accomplished very quickly or even in the blink of an eye. y (2) Voluntary Manslaughter: Voluntary manslaughter is an intentional killing distinguishable from murder by existence of adequate provocation; i.e. a killing in the heat of passion.MPC Rule:An act of manslaughter occurs when: o (a) A person who consciously disregards a substantial and unjustifiable risk that the death of another human being will result from his conduct. The conduct must be a gross deviation from the standard of conduct of a law-abiding person. o (b) A killing that would otherwise be murder, committed under the influence of extreme mental or emotional disturbance for which there is reasonable explanation. o (c) A person who acts purposely, knowingly, or with extreme recklessness (i.e., committed murder), but under the influence of extreme mental or emotional disturbance for which there is reasonable explanation or excuse. Reasonableness is to be determined from the viewpoint of a person in the defendant s situation under the circumstances as he believes them to be. y (3)Involuntary manslaughter:There are two types of involuntary manslaughter: o (a) Criminal Negligence: If death is caused by criminal negligence, the killing is in voluntary manslaughter. Criminal negligence requires a greater deviation from the reasonable person standard than is required for civil liability. o (b) Unlawful Act Manslaughter:  (a) Misdemeanor-Manslaughter: A killing in the course of the commission of a misdemeanor is manslaughter, although most courts would require either that the misdemeanor be malum in se, or if malum prohibitum, that the death be the foreseeable or natural consequence of the unlawful act.  (b) Felonies Not Included in Felony Murder: If a killing was caused during the commission of a felony but doesn t qualify as a felony murder case, it will be involuntary

manslaughter. The death also must be a foreseeable consequence of the felony. (c) MPC Rule:for negligent homicide:  (a) The mens rea for criminal negligence requires that the DF should be aware of a substantial and unjustifiable risk that the death of another human being will result from his conduct. The conduct must be a gross deviation from the standard of care of a reasonable person.  (b) As with the common law concept of criminal negligence, the MPC requires proof of a gross deviation from the standard of conduct of a reasonable person, thus criminal negligence requires a greater deviation from the RPS than is required for civil liability. Felony Murder:At common law all felonies were punishable by death so it made little difference whether the DF was convicted of murder or of the robbery during which the murder occurred! o MPC: The Model Penal Code does not provide for the crime of felony Murder.  Instead, the MPC proposes four levels of culpability into which the mental component of a criminal offense (i.e. the element of fault) can be characterized: (1) purposely, (2) knowingly, (3) recklessly, and (4) negligently. o

(3) STATUTORY MODIFICATION OF COMMON LAW CLASSIFICATION y (1) Modern statutes often divide murder into degrees. Generally, these degrees are: o (1) First Degree: All deliberate and premeditated murders, and (in some states) murders involving certain especially dangerous felonies, such as arson or rape, or committed by an inmate serving a life sentence.  (a) Definitions: Deliberate means that the DF made the decision to kill in a cool and dispassionate manner. Premeditated means that the DF actually reflected on the idea of killing, if only for a very brief period.  (b) First Degree Felony Murder: Many state statutes list specific felonies that can serve as the basis for felony murder. If a killing is committed during the commission of one of these enumerated felonies, the killing is usually first degree murder without the prosecution needing to show that the killing was either deliberate or premeditated. The felonies most commonly listed are burglary, arson, rape, robbery, and kidnapping, but other felonies that are inherently dangerous to human life are often specifically added. o (2) Second Degree: Non pre-meditated killing. o (3) Third Degree: A third degree murder is the killing of another as a result of indifference or negligence. This includes crimes like driving drunk and causing a fatal accident. y (2) Some statutes make killings performed in certain ways first degree murders: NY and the MPC use the following formulation: o (1) First Degree: Murder involving special circumstances, such as murder of a police officer, judge, fireman or witness to a crime; multiple murders; and torture or especially heinous murders. Note that a "regular" premeditated murder, absent such special circumstances, is not a first-degree murder; murders by poison or "lying in wait" are not per se first-degree murders. First degree murder is pre-meditated. o (2) Second Degree: Any premeditated murder or felony murder that doesn t involve special circumstances. (4) GEORGIA MURDER STATUTES y Georgia has only two murder statutes: o (a) Malice Murder: which his akin to many states first and second degree murder; and o (b) Felony Murder: which is the unlawful killing of someone while committing a felony. (A) Malice Murder Statute y (1) GA Code Ann., 16-5-1: Murder statute o (a) A person commits the offense of murder when he unlawfully and with malice aforethought, either express or implied, causes the death of another human being.  Express malice is that deliberate intention unlawfully to take the life of another human being which is manifested by external circumstances capable of proof. Malice shall be implied where no considerable provocation appears and where all the circumstances of

the killing show an abandoned and malignant heart. (b) A person also commits the offense of murder when, in the commission of a [inherently dangerous] felony, he causes the death of another human being irrespective of malice. (3) Malice Aforethought (common law): In the absence of facts excusing the homicide or reducing it to voluntary manslaughter, malice aforethought exists if the DF has any of the below states of mind: o ALI &MPC:The ALI and MPC describe four constituent states of mind:  (1) Express: Intent to kill (express malice);  (2-4) Implied Malice: y (2)Intent to inflict great bodily injury; y (3)Reckless indifference to an unjustifiably high risk to human life ( abandoned and malignant heart ); or y (4)Intent to commit a felony (felony murder) o Deadly Weapon Rule: Intentional use of a deadly weapon authorizes a permissive inference of intent to kill. A deadly weapon is any instrument or in some limited circumstances, any part of the body used in a manner calculated or likely to produce death or serious bodily injury. (3) State v. Guthrie: Elements of murder o (1) Unlawful taking of a life; (2) Willful taking of a life; (3) Maliciously taking of a life; (4) Deliberately taking of a life; (5) Premeditative taking of a life (4) Brewer v. State (GA): [p]remeditation is not an element of murder in Georgia, and the malice which is required for murder can be formed in an instant so long as it is present at the time of the act of killing. o

(B) Felony Murder Statute y (1) Definition: A killing, even an accidental one, committed during the course of a felony is murder. Malice is implied from the intent to commit the underlying felony. o Policy: Edge v. State (GA): The purpose of the felony-murder rule is to deter felons from killing negligently or accidentally by holding them strictly responsible for killings they commit. o Benefit no malice necessary: The prosecution can obtain a conviction for murder without showing malice if the killing occurred during the commission of an inherently dangerous felony. y (2) Ga. Code Ann., 16-5-1 Felony Murder Rule: o (b) A person also commits the offense of murder when, in the commission of a felony, he causes the death of another human being irrespective of malice. y (3) Felonies that may support a felony murder conviction include: o (a) Common law: Under the common law, there were only a handful of felonies. Today, the criminal codes of states have created many more. o (b) Common ones: (1) Criminal damage to property in the 1st degree; (2) Misuse of a firearm while hunting; (3) Felony fleeing from police officer; (4) Manufacturing meth; (5) Kidnapping o (c) Additional Felonies:  (1) Distributing a controlled substance: A DF may be convicted of felony murder based on the underlying felony of distributing a controlled substance if: (1) that felony is inherently dangerous, and (2) the DF directly causes the death (Ex: by overdose or shooting connected w/ a drug deal) of the victim while in the commission of the felony.  (2) Combined with Conspiracy: When the felony murder doctrine is combined with conspiracy law, the scope of liability becomes very broad. Rule: If, in the course of a conspiracy to commit a felony, a death is caused, all members of the conspiracy are liable for murder if the death was caused in furtherance of the conspiracy and was a foreseeable consequence of the conspiracy. y (4) Limitations of Liability: There are some limitations on liability under this broad doctrine: o (a) Inherently Dangerous Felonies: The only function of the felony murder rule is the deterrence of felonies, which, by their nature or by the attendant circumstances, create a foreseeable risk of death. This function isn t served by application of the rule to felonies not foreseeably dangerous.  Also: the application of the felony murder rule to felonies that aren t foreseeably dangerous wouldn t work because there s no logical basis for imputing malice from the intent to commit a felony not dangerous to human life.

Georgia s Approach to the Application of the Felony-Murder Doctrine: y Hulme v. State (GA); Mosley v. State (GA); and Ford v. State (GA): (1) The only limitation on the type of felony that may serve as an underlying felony for a felony murder conviction is that the felony must be inherently dangerous to human life; for a felony to be considered inherently dangerous, it must be dangerous per se, or it must by its circumstances create a foreseeable risk of death. (2) In determining whether a felony meets that definition, this Court does not consider the elements of the felony in the abstract, but instead considers the circumstances under which the felony was committed (the particular facts of each case).  CA s approach:People v. Howard (CA): The court looks to the elements of the felony in the abstract, not in the particular facts of each case. o (b) Felony Must Be Independent of Killing: The felony murder rule can only be applied when the underlying felony is independent of the killing. Thus, a felony such as manslaughter or aggravated battery won t qualify as the underlying felony for purposes of felony murder liability.  Edge v. State (GA): If the jury finds voluntary manslaughter, it necessarily finds the felonious assault was mitigated by provocation, and committed without the mens rea essential to impute malice to the killing. Thus, the felony of assault in that instance can t support a felony murder conviction because there is no malice to be transferred. o (c) During the Commission of a Felony Termination of Felony: The death must have been caused during the commission or attempted commission of the felony, but the fact that the felony was technically completed before death was caused doesn t prevent the killing from being a felony murder. Deaths caused while fleeing from the crime are felony murder. But once the felon has reached a place of temporary safety, the impact of the felony murder rule ceases and deaths subsequently caused are not felony murder. o (d) Defense to Felony Murder: To convict a DF of felony murder, the prosecution must prove that he committed the underlying felony. Thus, if the DF has a substantive defense that negates an element of the underlying felony, he has a defense to felony murder.  Procedural defenses: in most states, procedural defenses (such as a statute of limitations defense to the underlying felony) will not be a defense to felony murder. (5) General rules on who is killed and who does the killing: o (a) If a victim or innocent bystander is killed as a result of commission or attempted commission of an inherently violent felony, those perpetrating that felony can be found guilty of felonymurder; o (b) If a victim or police officer is killed by another victim or police officer during attempts to resist or prevent an inherently violent felony, then the perpetrators of the felony can be found guilty of felony-murder; o (c) In some jurisdiction, if a victim or police officer kills a co-perpetrator or accomplice of someone committing or attempting to perpetrate an inherently dangerous felony, then the surviving perpetrator can be found guilty of felony-murder for the death of his or her accomplice;  GA Rule:Up until 2010, State v. Crane (GA)said that surviving perpetrators could not be found guilty of felony-murder when a victim killed his accomplice. y However: State v. Jackson (GA) overturned Crane and held that a person could be found guilty of felony-murder when his accomplice was killed by a victim (6) Two policy problems:With respect to the operation of most state felony murder statutes, there are two acknowledged problems. Both are policy problems: neither is of constitutional dimension. o (a)No Limitations: Absent some limitations on the felonies that can invoke the rule, even nondangerous felonies in which a DF can t reasonably be thought to have manifested a manendangering state of mind, can turn an accidental death into felony murder; and o (b)Transfer of Intent: Felony murder charges allows for the transfer of intent to commit a felony to the intent to kill. (7) Abolishing the Felony-Murder Rule:Hawaii, Kentucky, Michigan, and Ohio have abolished the Felony murder rule. The felony-murder rule has been abolished in England. 

(5) GEORGIA & MPC VOLUNTARY MANSLAUGHTER RULE (A) Voluntary Manslaughter Statute y (1) Definition: Voluntary manslaughter means that homicide occurred under circumstances that the person acted as a result of a sudden, violent and irresistible passion caused by a provocation likely to excite such passion in a reasonable person. The penalty is one to twenty yearsimprisonment. y (2) GA Code Ann., 16-5-2: Voluntary Manslaughter: A person commits the offense of voluntary manslaughter when he causes the death of another human being under circumstances which would otherwise be murder and if he acts solely as the result of a sudden, violent, and irresistible passion resulting from serious provocation sufficient to excite such passion in a reasonable person; however, if there should have been an interval between the provocation and the killing sufficient for the voice of reason and humanity to be heard, of which the jury in all cases shall be the judge, the killing shall be attributed to deliberate revenge and be punished as murder. o Girouard v. State (Adequate Provocation): The ultimate issue in this case is whether the provocation of Steven Girouard by Joyce Girouard was enough in the eyes of the law to reduce the murder charge to manslaughter.  There s no reason for a holding in favor of those who find that the easiest way to end a domestic dispute is by killing their spouse. y (3) Elements of Adequate Provocation: At common law, provocation would reduce a killing to voluntary manslaughter only if it met four tests: o (a)The provocation must have arose sudden and intense passion in the mind of an ordinary person such as to cause him to lose his self-control; o (b)The DF must have in fact been provoked; o (c)There must not have been a sufficient time between the provocation and the killing for the passions of a reasonable person to cool (factual question); and o (d)The DF in fact did not cool off between the provocation and the killing. o Prof. Mears Rules of Provocation:  (1) There must have been adequate provocation;  (2) The killing must have been in the heat of passion;  (3) It must have been a sudden heat of passion that is, the killing must have followed the provocation before there had been a reasonable opportunity for the passion to cool;  (4) There must have been a causal connection between the provocation, the passion, and the fatal act. y (4) Standard to Apply - Objective: The standard applied is the reasonable person standard. o Partridge v. State (GA):The determination whether a person acts solely as the result of a sudden, violent, and irresistible passion resulting from serious provocation sufficient to excite such passion in a reasonable person is based on an objective standard. o Lewandowski v. State (GA): The standard applied is the reasonable person standard. y (5) Adequate vs. Inadequate Provocation: o (a) When Provocation is Adequate: Adequate provocation is usually recognized in cases of:  (1) Being subjected to a serious battery or a threat of deadly force; and  (2) Discovering one s spouse in bed with another person. o (b) Inadequate Provocation as a Matter of Law: At common law, some provocations were defined as inadequate as a matter of law. The most significant was mere words. Modern courts are more likely to submit to the jury the question of whether mere words and similar situations are adequate provocation.  Hambrick v. State (GA): Provocation by words or gestures alone is always inadequate to reduce murder to manslaughter was erroneous; provocative conduct might in some instances include actions which could be described as gestures.  Sewell v. State (GA): Racial epithet directed at DF by victim couldn't produce sufficient provocation to reduce felony murder committed during course of aggravated assault to manslaughter.  Mitchell v. State (GA): Words alone, regardless of the degree of their insulting nature, will not in any case justify the excitement of passion so as to reduce the crime from murder to manslaughter.

Commonwealth v. Carr: The sight of naked women engaged in lesbian lovemaking is not adequate provocation to reduce an unlawful killing from murder to voluntary manslaughter. A reasonable person of ordinary self-control under like circumstances would ve simply stopped watching and left the scene; he wouldn t have killed them. y Note: A trial court must make an initial determination whether sufficient evidence has been presented of serious provocation. (6) Recent Expansion Imperfect Self-Defense: Some states recognize an imperfect self-defense doctrine under which a murder may be reduced to manslaughter even though: o (a) DF was at fault in starting the altercation; or o (b) DF unreasonably but honestly believed in the necessity of responding with deadly force 

(B) Involuntary Manslaughter: y (1) Definition: (1) Felony involuntary manslaughter occurs when an individual causes the death of another person while committing an unlawful act other than a felony (misdemeanor). (2) Misdemeanor involuntary homicide (negligent homicide) involves the killing of another person while committing a lawful act in an unlawful manner.The punishment is one to ten years imprisonment. y (2) GA Code Ann., 16-5-3: Felony involuntary manslaughter: o (a) Felony involuntary manslaughter: A person commits the offense of involuntary manslaughter in the commission of an unlawful act when he causes the death of another human being without any intention to do so by the commission of an unlawful act other than a felony. o (b) Misdemeanor involuntary homicide (negligent homicide):A person commits the offense of involuntary manslaughter in the commission of a lawful act in an unlawful manner when he causes the death of another human being without any intention to do so, by the commission of a lawful act in an unlawful manner likely to cause death or great bodily harm. (6) SUMMARY HOW TO ANALYZE HOMICIDE PROBLEMS y In analyzing any homicide situation, the following questions must be asked and answered: y (1) Did the DF have any of the states of mind sufficient to constitute malice aforethought? o (a)If yes, is there proof of anything that will, under any applicable statute, raise the homicide to first degree murder (including felony murder rules)? o (b)If yes, is there evidence to reduce the killing to voluntary manslaughter, i.e. adequate provocation? y (2) Ifno, is there a sufficient basis for holding the crime to be involuntary manslaughter, i.e. criminal negligence or misdemeanor manslaughter? y (3)Is there adequate causation between the DF s acts and the victim s death? Did the victim die within a year and one day? Was the DF s act the factual cause of death? Is there anything to break the chain of proximate causation between the DF s act and the victim s death? o Hypo: A came upon B, who was letting the air out of a tire on A s car. When A shouted at B, B picked up a rock and threw it at A, shouting obscenities. B ran off, but A went to his car, pulled a gun out, and shot at B, hitting him in the leg. B was taken to a hospital where he underwent surgery; the wrong gas was used as an anesthetic, and B died. Generally, wounds of this sort are not deadly. A testifies under oath that he merely intended to wound B as revenge for causing A the inconvenience of the flat tire. What is A s liability?  (1)States of mind: Even if A intended only to wound B with a bullet, this is intent to inflict great bodily injury and is sufficient for malice aforethought. y (a) If the statute makes premeditated killings first degree murder, A almost certainly did not premeditate. y (b)Manslaughter: While B s obscenities might not be adequate provocation, a jury could certainly find that throwing the rock was such provocation.  (2)Criminal Negligence: If the answer to the first question had been no, A s actions would have constituted criminal negligence.  (3) Causation:Yes. B died within a year and one day. But for A s shot, B would not have died. Negligent medical care isn t a superseding intervening factor that breaks the chain of proximate causation, unless it s gross negligence or intentional malpractice.

(7) INFORMATION ON CAPITAL MURDER (DEATH PENALTY) History of Death Penalty: y (1) Early History o (1) 18th Century BC: The death penalty laws date as far back as the 18th Century B.C. in the Code of King Hammurabi of Babylon, which made the death penalty mandatory for 25 crimes.  Ex: theft, murder, wrongs at work o (2) 17th Century BC: In the 17th Century B.C.'s Draconian Code of Athens, which made death the only punishment for all crimes; o (3) 1700 s Britain: By the 1700s, 222 crimes were punishable by death in Britain, including stealing, cutting down a tree, and robbing a rabbit warren. Because of the severity of the death penalty, many juries would not convict DFs if their offense weren t serious. y (2) Reform of the Death Penalty o (4) 1700-1800 s: The first attempted reform of the death penalty in the US was undertaken by Dr. Benjamin Rush, a signer of the Declaration and founder of the Pennsylvania Prison Society.  Rush challenged the belief that the death penalty serves as a deterrent to crime. In fact, Rush was an early believer in the "brutalization effect." He held that having a death penalty actually increased criminal conduct. o (5) 1838: In 1838, to try make the death penalty more palatable, some states began passing laws against mandatory death sentencing instead enacting discretionary death penalty statutes.  Sentencing discretion in the capital process was perceived as a victory for those opposed to the death penalty because prior to the enactment of these statutes, all states mandated the death penalty for anyone convicted of a capital crime, regardless of circumstances. o (6) 1846: In 1846, Michigan became the first state to abolish the death penalty for all crimes except treason. Later, Rhode Island and Wisconsin abolished the death penalty for all crimes. o (7) 1907-1917: six states completely outlawed the death penalty and three limited it to treason and first degree murder of a law enforcement official. However, this reform was short-lived. y (3) Resurgence of the Death Penalty: o (8) 1917-1920s: During this time five of the six abolitionist states reinstated their death penalty by 1920. Michigan did not reinstate. o (9) 1920s-1940s: there was a resurgence in the use of the death penalty.  There were more executions in the 1930s than in any other decade in American history, an average of 167 per year. y (4) Modern Death Penalty Sentiment o (1) 1950s: In the 1950s, public sentiment began to turn away from capital punishment.  Many allied nations either abolished or limited the death penalty. o (2) 1963: With the exception of a small number of rarely committed crimes in a few jurisdictions, all mandatory capital punishment laws had been abolished by 1963. o (2) Since 1973: Over 130 people have been exonerated from death row.  From 1973-1999, there was an average of 3.1 exonerations per year. From 2000-2007, there has been an average of 5 exonerations per year. o (3) 1976: Supreme Court allowed states to reinstate capital punishment o (4) 2011: Illinois became the third state to abolish the death penalty since the U.S. Supreme Court allowed states to reinstate capital punishment in 1976. In 2009 New Mexico became the second state to abolish the death penalty New Jersey became the first in 2007. States Without the Death Penalty as a Punishment: y Alaska (1957); Hawaii (1948); Iowa (1965); Illinois (2011); Maine (1887); Massachusetts (1984); Michigan (1846); Minnesota (1911); North Dakota (1973); New Jersey (2007); New Mexico* (2009); New York (2007); Rhode Island (1984); Vermont (1964); West Virginia (1965); Wisconsin (1853); also the Dist. of Columbia (1981) 8th Amendment of the Constitution: Excessive bail shall not be required, nor excessive fines imposed, nor

cruel and unusual punishments inflicted. y (1) Definition: The phrase cruel and unusual historically had been used to refer to punishment that is unhuman and barbarous, such as torture. o The 8th Amendment can also refer to punishment that by its length and harshness is out of proportion to the underlying crime. y (2) Initial attention on 8th Amendment: Weems v. US (1910): 15 years in prison at hard labor, loss of all civil rights, was punishment that was not proportional to the crime of falsifying an official document for the purpose of defrauding the government. y (3) Trop v. Dulles (1958) Changes:Supreme Court made clear that the meaning of what is cruel and unusual will change over time, depending on society s own attitudes about crime and punishment. y (4) Furman v. Georgia (US, 1972) Arbitrary:Supreme Court held that a punishment would be "cruel and unusual" if it: (1) is too severe for the crime, (2) is arbitrary, (3) offends society's sense of justice, or (4) is not more effective than a less severe penalty. o Holding: Georgia's death penalty statute, which gave the jury complete sentencing discretion, could result in arbitrary sentencing and was therefore unconstitutional. y (5) Coker v. Georgia (US, 1977) Rape: Supreme Court held that a death sentence for the rape of an adult female doesn t violate the 8th Amendment. o At the time of the Coker decision, only Georgia retained the death penalty for the crime of rape of an adult woman. y (6) Atkins v. Virginia (US, 2002) Retards: Supreme Court held that a death sentence imposed on someone who is mentally retarded offends society s sense of justice. y (7) Roper v. Simmons (US, 2005) Minors:Supreme Court held that a death sentence imposed on someone who is under the age of 18 at the time of the commission of a crime offends contemporary standards of decency. VII. SEX OFFENSES (A) RAPE: y (1) Common law: Sexual intercourse by a male with a female not his wife is rape if it is committed: o (a) Forcibly, or o (b) By means of deception; o (c) While the female is asleep or unconscious; or o (d) Under circumstances in which the female isn t competent to give consent (e.g. she is drugged, mentally disabled, or underage). y (2) MPC 213.1 Rape: A male who has sexual intercourse with a female not his wife is guilty of rape if: o (a) He compels her to submit by force or by threat of imminent death, serious bodily injury, extreme pain or kidnapping, to be inflicted on anyone; or o (b) He has substantially impaired her power to appraise or control her conduct by administering or employing without her knowledge drugs, intoxicants or other means for the purpose of preventing resistance; or o (c) The female is unconscious; or o (d) The female is less than 10 years old. o Degree: Rape is a felony of the second degree unless (i) in the course thereof the actor inflicts serious bodily injury upon anyone, or (ii) the victim was not a voluntary social companion of the actor upon the occasion of the crime and had not previously permitted him sexual liberties, in which cases the offense is a felony of the first degree. y (3) GA. Code Ann., 16-6-1:(a) A person commits the offense of rape when he has carnal knowledge of: o (a) A female forcibly and against her will; or o (b) A female who is less than ten years of age. y Penetration Sufficient: Rape only requires the penetration of the female sex organ by the male sex organ. Emission is not necessary to complete the crime. o Includes intercourse per os (via the mouth) or per anum (via the anus). y Marital Relationship: The fact that the person allegedly raped is the wife of the DF shall not be a defense to a charge of rape.

(1) The Actus Reus of rape has two critical components:(A) Force and (B) Lack of effective consent. (A) Force:The intercourse must be forced. y (a) Mora v. State (GA) Force definition: "Forcibly," as used in the rape statute, means acts of physical force, threats of death or physical bodily harm, or mental coercion, such as intimidation. o Lack of resistance, induced by fear, is also force, and may be shown by the victim's state of mind from her prior experience with the defendant and subjective apprehension of danger from him. y (b) Commonwealth v. Sherry (MA) Resisting:The victim isn t required to use physical force to resist; any resistance is enough when it demonstrates that her lack of consent is honest and real. y (c) Rusk v. State (MD) How much force:If the acts and threats of the DF were reasonably calculated to create in the mind of the victim a real apprehension, due to fear, of imminent bodily harm, serious enough to impair or overcome her will to resist, then such acts and threats are the equivalent of force. o Facts: The victim stated that she was afraid, and submitted because of the look in his eyes. After both were undressed and in the bed, and she pleaded to him that she wanted to leave, he started to lightly choke her. o Holding: lightly choking along with all the facts and circumstances in the case, were sufficient to cause a reasonable fear which overcame her ability to resist. (B) Lack of Effective Consent: The intercourse must be without the victim s effective consent. y (a)Machuca v. State (GA) Lack of consent: The lack of consent on the part of the alleged victim is an essential element of the crime of rape. The burden of proof is on the state to show a lack of consent on the part of the alleged victim ... beyond a reasonable doubt. y (b) Deborah S. v. Diorio, No means no: A clear No! , by words and/or acts, must be accepted as No! in a democratic and lawful country. y (c) People v. John Z. (CA) Withdrawn consent: Forcible rape occurs when the act of sexual intercourse is accomplished against the victim's will by force or threat of bodily injury, and it is immaterial at what point the victim withdraws her consent, so long as that withdrawal is communicated to the male and he thereafter ignores it. y (d) State v. Alston (NC) Withdrawn consent:A defendant can be guilty of raping his mistress or a common strumpet, because consent to sexual intercourse freely given can be withdrawn at any time prior to penetration. o Facts: Cottie Brown, had been involved for approximately six months in a consensual sexual relationship. During the six months the two had conflicts at times and Brown would leave the apartment she shared with the defendant to stay with her mother. o Holding: Here, the evidence was sufficient to show that the act of sexual intercourse in question was against Brown's will. However, it was not sufficient, to show that the act was accomplished by actual force or by a threat to use force unless she submitted to sexual intercourse. o State v. Scarborough (NC):State v. Etheridge limited Alston to those situations which are factually similar to Alston. y (a) Scott v. State (GA) Withdrawal: The fact that a relationship between two people was consensual at one time doesn t preclude a rape conviction when the relationship was no longer consensual. (2) Reporting of Rape or Outcry y (a) Commonwealth v. Sherry (MA) Reporting:There is no rule that requires a victim to complain of a rape to strangers in an unfamiliar place while still in the company of the alleged rapist. o Here, the victim first reported the rape to her friend and roommate within a few hours after being dropped off by the defendants. y (b) Skipper v. State (GA) Reporting:Lack of immediate outcry by victim or immediate reporting of rape is not required. (3) Consent, even if given, may be ineffective in several situations: y (a) Intercourse Accomplished by Threats:Any consent obtained if and when intercourse is accomplished by placing the victim in fear of great and immediate bodily harm is ineffective. The failure

of the victim to resist to the utmost doesn t prevent the intercourse from being rape if resistance is prevented by such threats (see above). (b) Woman Incapable of Consenting: If the victim is incapable of consenting, the intercourse is rape. Inability to consent may be caused by unconsciousness, by the effect of rugs or intoxicating substances, or by the victim s mental condition. If the victim is so insane or retarded as to be incapable of giving consent, intercourse with her constitutes rape. o Boro v. Superior Court (CA):Rape may occur where victim is unconscious of the nature of the act and this is known to accused). A victim need not be totally and physically unconscious in order rape to occur. (c) Consent Obtained by Fraud: Only in limited circumstances will intercourse with consent obtained by fraud constitute rape. o (1) Types of fraud:  (a) Fraud in the Factum: Fraud in which the deception causes the other party to misunderstand the nature of the transaction in which he or she is engaging especially with regard to the contents of an instrument (as a contract or promissory note)  (b) Fraud in the Inducement: Fraud in Inducement is the fraudulent act of influencing a person to do an activity which he otherwise would not have done unless for such inducement. o (1) Fraud as to Whether Act Constitutes Sexual Intercourse: If the victim is fraudulently caused to believe that the act is not sexual intercourse, the act of intercourse constitutes rape.  Boro v. Superior Court (CA):DF persuaded victim that what was actually an act of intercourse was medical treatment accomplished by surgical instruments. DF was guilty or rape. o (2) Fraud as to Whether DF is Victim s Husband: If the DF fraudulently persuades the victim that he is her husband, the intercourse is generally not rape.  Ex: D arranges for X to pretend to marry D and V. In fact, X has no authority to marry persons and there is no marriage. After the sham marriage, D has intercourse with V. D is not guilty of rape because there was consent. o (3) Other Fraud: Other kinds of fraud will not make the intercourse rape.  Ex: D promises to marry V at a later time and thereby induces V to consent to intercourse. D never intended to marry V. D is not guilty of rape, but maybeseduction.

(4) Limitations on the Prosecution of Allegations of Rape y (1) Statute of Limitations: In criminal cases, the period of limitation runs from the commission of the offense to the date of the indictment. o Burden: on the State to prove that a crime occurred within the applicable statute of limitation. o Key to determining: find when the offender or offense became known.  Transfers: In so determining, the knowledge of the victim of the crime is imputed to the State, and thus the crime becomes known to the State and the statute of limitation begins to run after it is known to the prosecutor or to the one injured by the offense. o Ga. Code Ann., 17-3-2:The period within which a prosecution must be commenced under Code Section 17-3-1 or other applicable statute does not include any period in which:  (1) The accused is not usually and publicly a resident within this state;  (2) The person committing the crime is unknown or the crime is unknown;  (3) The accused is a government officer or employee and the crime charged is theft by conversion of public property while such an officer or employee; or  (4) The accused is a guardian or trustee and the crime charged is theft by conversion of property of the ward or beneficiary. y (2) Defenses to the charge of rape: o (a) DF didn t commit the act o (b) DF committed the act of sexual intercourse but with consent o (c) DF committed the act of sexual intercourse & was mistaken about whether it was consensual  DF is likely guilty of a lesser included offense such as: (1) attempt to commit rape or (2) aggravated assault with the attempt to commit rape.

(B) STATUTORY RAPE y (1) Ga. Code Ann., 16-6-3 Statutory Rape: o (a) A person commits the offense of statutory rape when  (1) He or she  (2) Engages in sexual intercourse  (3) With any person  (4) Under the age of 16 years and not his or her spouse, provided that no conviction shall be had for this offense on the unsupported testimony of the victim. o (c) If the victim is at least 14 but less than 16 years of age and the person convicted of statutory rape is 18 years of age or younger and is no more than four years older than the victim, such person shall be guilty of a misdemeanor. y (2) Consent and Force: A child under the age of consent is legally incapable of giving consent to sexual intercourse.Accordingly, sexual intercourse with a boy or girl under the age of consent is non-consensual and against his or her will as matter of law. o The elements of force and lack of consent, which are necessary for a conviction of forcible rape, are irrelevant in a statutory rape prosecution, because statutory rape is an act of sexual intercourse with a forbidden partner, that is, a person under the age of consent who is not the offender's spouse.  Hill v. State (GA) Strict Liability: Considerations of consent and force and against her will are irrelevant in statutory rape case.  Haywood v. State (GA): [a] person commits the offense of statutory rape when he or she engages in sexual intercourse with any person under the age of 16 years and not his or her spouse. With regard to statutory rape ..., the defendant's knowledge of the age of the female is not an essential element of the crime ... and therefore it is no defense that the accused reasonably believed that the prosecutrix was of the age of consent. y (3) Teague v. State (GA) Sexually active persons: The offense of rape is not confined to a virtuous victim, and rape may be committed upon a female no matter how loose sexually she may be. y (4) Mistake as to Age: Will a DF s reasonable mistake as to the victim s age prevent liability for statutory rape? For purposes of the examination, the best answer is no, since statutory rape is a strict liability crime. The second best answer, to be used only if the best answer isn t presented, is that a reasonable mistake as to age will prevent conviction if the DF reasonably believed the victim was old enough to give an effective consent. RAPE SHIELD LAWS y Definition: A rape shield law is a law that limits a defendant's ability to cross-examine rape complainants about their past sexual behaviour. The term also refers to a law that prohibits the publication of the identity of an alleged rape victim. y Ga. Code Ann., 24-4-412: In any prosecution for rape . . . evidence relating to the past sexual behavior of the complaining witness shall not be admissible, either as direct evidence or on cross-examination of the complaining witness or other witnesses. . . o (a) Evidence of past sexual behavior includes, but is not limited to, evidence of the complaining witness s marital history, mode of dress, general reputation for promiscuity, nonchastity, or sexual mores contrary to the community standards. . . y Wagner v. State (GA) and Mann v. State (GA): Evidence of prior false accusations by a rape victim does not fall within the proscription of the rape shield law, but before admitting such evidence the trial court must determine outside the presence of the jury that a reasonable probability exists that such accusations were false. The policy underlying rape shield statutes generally have four purposes: y (1) The law prevents the DF from harassing and humiliating the complainant with evidence of either her reputation for chastity or of specific prior sexual acts. y (2) Evidence of prior sexual acts generally have no bearing on whether the complainant consented to sexual conduct with the DF at the time in question. y (3) Exclusion of the evidence keeps the jury focused only on issues relevant to the case at hand.

(4) The law promotes effective law enforcement because a victim will more readily report and testify in sexual assault cases if she does not fear that her prior sexual conduct will be brought before the public.

Four Approaches to Rape Shield Laws: y (1) The Michigan approach: This is kind of a blanket approach where pretty much all testimony about sexual conduct or reputation is barred, with a few exceptions. This approach pretty much goes to the constitutional limit. Any evidence that may be accepted is closely scrutinized. y (2) The Texas approach: Texas and some other states will basically give judges as much discretion as they want. Judges are supposed to balance the value of the evidence against the possibility that it will prejudice the jury. y (3) The federal approach: This approach has three key features: o (1) A blanket prohibition, like the Michigan approach o (2) Exceptions for undeniably relevant evidence o (3) A catch-all provision to selectively admit relevant evidence on a case-by-case basis y (4) The California approach: Evidence is separated into two categories: o (1) Evidence offered to prove consent it s generally inadmissible except evidence of prior consensual sexual activity between the victim and defendant o (2) Evidence offered to attack credibility if it s relevant, it is admitted. IX. PROPERTY OFFENSES (B) ROBBERY (AGGRAVATED LARCENY): y (1) Elements:At common law, robbery, is defined as: o (1) A taking; o (2) Of personal property of another; o (3) From the other s person or presence; o (4) By force or intimidation; o (5) With the intent to permanently deprive him of it. o Thus: robbery is basically an aggravated form of larceny in which the taking is accomplished by force or threats of force. y (2) MPC 222.1 Robbery:A person is guilty of robbery if, in the course of committing a theft, he: o (a) Inflicts serious bodily injury upon another; or o (b) Threatens another with or purposely puts him in fear of immediate serious bodily injury; or o (c) Commits or threatens immediately to commit any felony of the first or second degree. y (3) GA Code Ann., 16-8-40 Robbery:(a) A person commits the offense of robbery when, with intent to commit theft, he takes property of another from the person or the immediate presence of another: o (1) By use of force; o (2) By intimidation, by the use of threat or coercion, or by placing such person in fear of immediate serious bodily injury to himself or to another; or o (3) By sudden snatching. y (4) GA Code Ann., 16-8-41 Armed Robbery: (Statutes often create a form of aggravated robbery, usually defined as robbery accomplished with a deadly weapon). A person commits the offense of armed robbery when, with intent to commit theft, he or she takes: o (1) Property o (2) Of another from the person or the immediate presence of another o (3) By use of an offensive weapon, or any replica, article, or device having the appearance of such weapon. o Write v. State (GA) Purpose:The purpose of the armed robbery statute is to punish more severely those defendants who use a weapon in the commission of a robbery, which would constitute a felony even in the absence of such weapon.  Facts: Williams robbed a taxicab driver and a pizza delivery person. y (5) The term serious violent felony means: armed robbery, as defined in GA Code 16-8-41. o First conviction: A first conviction of a serious violent felony in which the DF has been sentenced to life imprisonment, that person shall not be eligible for any form of parole or early

release until that person has served a minimum of 30 years in prison. Reduced sentence: The minimum term of imprisonment shall not be reduced by any earned time, early release, work release, leave, or other sentence-reducing measures under programs administered by the Department of Corrections.

(1) Robbery/Armed Robbery Nuances y (1) Taking: Same rules as Larceny. y (1) Force or Threats Necessary: If force is used, it obviously must be sufficient to overcome the victim s resistance. If threats are used, they must be threats of immediate death or serious physical injury to the victim, a member of their family, a relative, or a person in their presence at the time. A threat to do damage to property is not sufficient, with the exception of a threat to destroy the victim s dwelling house. o Force or Threats Must Be Used to Obtain Property or Immediately Retain It: The force or threats must be used either to gain possession of the property or to retain possession immediately after such possession has been accomplished.  Ex: A, without B s knowledge, took his wallet. B felt the wallet slip out, turned around, and grabbed A as he moved away. A struck B, rending her unconscious, and ran. Held: A is guilty of robbery because force was used to prevent the victim from immediately apprehending A and regaining the property. y (2) Property Of Another : Same rules as Larceny. o Tarver v. State (GA) Value of Property:The offense of armed robbery is committed merely by the armed taking of the property of another, regardless of whether its value is great or small. y (3) Property Must Be Taken From Person or Presence of Victim: The property must be taken from some location reasonably close to the victim, but it doesn t have to be taken from her person. Property is in the victim s presence if it is in her vicinity, or in other rooms of the house in which victim is located. o Francis v. State (GA) Dead person:One can be convicted for armed robbery for taking property from a dead victim so long as the property is taken after the force was employed against the victim, and where the evidence authorizes a finding that the theft was completed by use of an offensive weapon. o Smith v. State (GA) Example:Defendant took money from victim's immediate presence, within meaning of armed robbery statute, when he took store's money from counter after he forced victim, a store employee, into a back room, where store's money was under victim's control until defendant ordered victim at gunpoint into back room. o Mathis v. State (GA) Presence Definition:A victim's "immediate presence" stretches fairly far in this context, and does not require proof that the victim was within arm s length or facing the DF; convictions are usually upheld if what was taken was under the victim's control or responsibility and was not too distant from the victim. o Matthews v. State (GA) Forced to Flee: Where the victim fled before the property was taken but after the robbery began, a person can be convicted of armed robbery; when the robbers forcibly cause the victim to be away from the immediate presence of the property at the time it is stolen, the offense of armed robbery can still be committed. y (4) Use of an offensive weapon: o Jackson v. State (GA) Definition: In Georgia, armed robbery does not occur unless the robber's use of an offensive weapon directly or indirectly induces the possessor of the property to relinquish possession to the perpetrator. o Bradford v. State (GA) Reasonable Apprehension:If a victim reasonably apprehends that an offensive weapon is being used, the requirement that the alleged perpetrator of an armed robbery use a weapon or device having the appearance of a weapon will be satisfied; Georgia s armed robbery statute does not require proof of an actual offensive weapon. o Prins v. State (GA) Circumstantial Evidence: The presence of an offensive weapon may be established by circumstantial evidence, and a conviction for armed robbery may be sustained even though the weapon itself was neither seen nor accurately described by the victim. Some physical manifestation of a weapon is required, however, or some evidence from which the presence of a weapon may be inferred. y (5) Distinction from Aggravated Assault:

Evans v. State (GA) Distinction:The basis of the crime of aggravated assault is the infliction of injury (physical or mental) to the person, while the basis of the crime of armed robbery is the taking of property from a person (by one of several types of means); injury to the person is not an essential element of armed robbery.  Each offense clearly has elements not contained in the other and the laws were obviously designed to prohibit two evils and to protect two values; one relating to the person, the other relating primarily to property.

(B) COMMON LAW LARCENY: y Elements:At common law, larceny, the basic common law property offense, consisted of: o (1) A trespassory taking (caption); o (2) And carrying away (asportation); o (3) Of tangible personal property; o (4) Of another; o (5) With intent to permanently (or for an unreasonable time) deprive the person of his interest in the property. (1) Taking:It is essential that the DF actually obtain control of the property. y (a) Destruction of Movement is Not Sufficient: Mere destruction or movement of the property isn t sufficient to constitute a taking. o Ex: D knocked a glass from X s hand. It fell and broke. D is not guilty of larceny. Although X may have lost possession, D never obtained control. y (b) Sufficient If Caused to Occur by Innocent Agent: Even if a DF obtains control of the property through the act of an innocent agent, it is a taking. o Ex: A cow belonged to Y. D, pointing out a cow in nearby field, offers to sell it to X for $10. X gives D the money and then takes the cow. D is guilty of larceny of the cow because she obtained control of it by virtue of X, an innocent agent of hers. y (c) Taking Must be Trespassory :The DF must take the property from the possession of another in a trespassory manner, i.e. without the consent of the person in possession of the property. o Taking by Consent Induced by Misrepresentations Larceny by Trick : If the victim consents to the DF s taking possession of the property, but this consent was induced by a misrepresentation, the consent isn t valid. The resulting larceny is often called larceny by trick. It s difficult to distinguish larceny by trick from false pretenses. (2) Asportation:Larceny requires asportation, i.e. that all parts or portions of the property be moved and that this movement, which need only be slight, be part of the carrying away process. y Ex: A came upon two upside-down wheelbarrows in B s yard. She turned them both right side up, and moved one six inches toward the gate. Merely turning the wheelbarrows over is not asportation. However, moving the other wheelbarrow a 6 inches is asportation, because that movement is part of carrying it away. (3) Property that May Be the Subject of Larceny:Larceny can be committed only by the acquisition of tangible personal property capable of being possessed and of some value. y (a) Land and Attachments: The common law of larceny does not protect land because by its nature it is immovable. Items attached to the land, e.g., trees, crops, and inanimate objects affixed in the earth also fall outside the scope of the offense. Once they are severed from the land, however, they become personal property and subject to larceny law. y (b) Services: Traditionally, obtaining services wrongfully can t give rise to larceny. y (c) Intangibles: Intangibles can t give rise to larceny. y (d) Documents and Instruments: At common law, documents and instruments were regarded as merged with the matter they represented. Thus, unless they had monetary value in themselves, they could not be the subject of larceny. y (e) MPC and Modern Statutes:the Model Penal Code and many modern theft statutes cover all property ("anything of value"), [MPC 223.0(6)] including "immovable" property, such as real estate, and

"movable" property, "including things growing on, or found in land." [MPC 223.0(4)] (4) Property Of Another :Larceny is a crime against possession. Therefore, all that is necessary is that the property be taken from someone who has possessory interest superior to that of the DF. y (a) Requirement that Taking Be from One with Possession :The property must be taken from someone with possession other than the DF. If the DF had possession at the time of the taking, there is no larceny although it may be embezzlement. However, if the DF has custody rather than possession, her misappropriation of the property is larceny. o (1) Custody vs. Possession: Possession involves a much greater scope of authority to deal with the property than does custody.  Ex: A, while in a store, asks B, the clerk, if she may take a certain suit of clothing home on approval. B consents. A then asks to see a watch to examine it; B gives it to her. A then absconds with both items. Here, DF has possession of the suit, and custody of the watch. o (2) Employees: Low level employees generally have only custody of their employer s property. However, they have possession if the employer gives them especially broad powers over it or if the property is given directly to them by a third person, without the employer having intermediate possession. o (3) Bailee and Breaking Bulk : Generally, a bailee has possession. However, if they open closed containers in which the property has been placed by the bailor (i.e. she breaks bulk ), possession returns to the bailor. If a bailee misappropriates property after breaking bulk, they takes it from the possession of the bailor and is guilty of larceny if they have the intent to steal. y (b) Possession is All that s Needed: The person from whom the property is taken only needs to have possession. Thus, it is larceny if property is taken from a thief, as he has a possessory interest superior to the person who takes the property from him. y (c) Joint Property: At common law, larceny couldn t be committed by the taking of jointly held property by one of the joint owners. y (d) Lost, Mislaid, and Abandoned Property: Lost or mislaid property is regarded as constructively in the possession of the owner, and thus if it is found and taken, it is taken from his possession and larceny might be committed. However, abandoned property has no owner and larceny can t be committed by appropriating it. (5) State of Mind Required Intent to Permanently Deprive: Generally, larceny requires that at the time of the taking the DF must have had the intent to permanently deprive the victim of his interest in the property. The intent has to exist at the moment of the taking of the property. y (a) Sufficient Intent: o (1) Intent to Create Substantial Risk of Loss: If the DF intends to deal with the property in a manner that involves a substantial risk of loss, this is sufficient for larceny. o (2) Intent to Pledge Goods or Sell Them to Owner: It is larceny to take goods with the intent to sell them back to the owner or to pledge them, because this involves the substantial equivalent of permanent loss or high risk of permanent loss. y (b) Insufficient Intent: o (1) Intent to Borrow: If the DF intends to return the property within a reasonable time and at the time of the taking has a substantial ability to do so, the unauthorized borrowing doesn t constitute a larceny. Note: man states make it a crime to borrow a motor vehicle, even when the borrower fully intends to return it ( joyriding ). o (2) Intent to Obtain Repayment of Debt: It s not larceny to take money or goods of another if the DF honestly believes that she is entitled to them as repayment for a debt of the other (although the goods must not be worth more than the amount of the debt). In these situations, the DF believes the property is hers and therefore lacks and intent to deprive someone else of his property. y (3) Possibly Sufficient: o (1) Intent to Pay for Property: (1) If the property taken is not for sale, the fact that the DF intends to pay victim for it does not negate the larceny. (2) If the property is for sale and the DF has a specific and realistic intent to repay the person, the taking is not larceny.

(2) Intent to Claim Reward: (1) If the DF takes goods, intending to return them and hoping for a reward, this is not larceny. (2) However, If she takes them not intended to return them unless she is assured of a reward, this is larceny because it creates a substantial risk of loss.

(C) THEFT IN GEORGIA: y (1) Henson v. State (GA):The word theft is not a technical word of art with narrowly defined meaning, but a word of general and broad connotation, covering any criminal appropriation of another's property to the taker's use. o Larceny is also known as theft, and depending on the state or jurisdiction. The relevant legal statutes may refer to theft or larceny, but not generally both. y (2) Theft Offenses in Georgia: o Theft by taking O.C.G.A. 16-8-2 o Theft by deception O.C.G.A. 16-8-3 o Theft by conversion O.C.G.A. 16-8-4 o Theft of services O.C.G.A. 16-8-5 o Theft of lost or mislaid property O.C.G.A. 16-8-6 o Theft by receiving stolen property O.C.G.A. 16-8-7 o Theft by receiving property stolen in another state O.C.G.A. 16-8-8 o Theft by bringing stolen property into the state O.C.G.A. 16-8-9 o Theft of trade secrets O.C.G.A. 16-8-13 o Theft by shoplifting O.C.G.A. 16-8-14 o Conversion of payments for real property improvements O.C.G.A. 16-8-15 o Theft by extortion O.C.G.A. 16-8-16 o Entering auto. or motor vehicle w/ intent to commit theft or felony O.C.G.A. 16-8-18 o Theft of livestock O.C.G.A. 16-8-20 o Removal or abandonment of shopping carts O.C.G.A. 16-8-21 (1) Some Theft Statutes y (1) GA Code Ann., 16-8-1:As used in this article, the term: o (1) Deprive means, without justification:  (A) To withhold property of another permanently or temporarily; or  (B) To dispose of the property so as to make it unlikely that the owner will recover it. o (2) Financial institution means a bank, insurance company, credit union, building and loan association, investment trust, or other organization held out to the public as a place of deposit of funds or medium of savings or collective investment. o (3) Property of another includes property in which any person other than the accused has an interest but does not include property belonging to the spouse of an accused or to them jointly. y (2) GA Code Ann., 16-8-2 Theft by Taking: o (1)The offense of theft by taking, the State is required to prove that a person unlawfully [took] ... [the] property of another with the intention of depriving a person of the property, regardless of the manner in which the property is taken or appropriated. See Tauch v. State (GA) o (2) King v. State (GA) Lesser Offense:Robbery always involves theft or attempt at theft, and theft always involves the taking, or appropriation of the property of another. Therefore: theft by taking, or the intent to commit this act, will generally be involved where the property is removed from the person of another. Under these circumstances theft by taking necessarily is a lesser included offense to robbery by sudden snatching. y (3) MPC 223.3 Theft by Deception:A person is guilty of theft if he purposely obtains property of another by deception. A person deceives if he purposely: o (1) Creates or reinforces a false impression o (2) Fails to correct a false impression which the deceiver previously created or reinforced o (3) Fails to disclose a known lien, adverse claim or other legal impediment to the enjoyment of property. o (4) Fails to disclose a known lien, adverse claim or other legal impediment to the enjoyment of property

(4) GA Code Ann., 16-8-14 Theft by Shoplifting:(a) A person commits the offense of theft by shoplifting when he alone or in concert with another person, with the intent of (1) appropriating merchandise to his own use without paying for the same or (2) to deprive the owner of possession thereof or of the value thereof, in whole or in part, does any of the following: o (1) Conceals or takes possession of the goods or merchandise of any store or retail establishment; o (2) Alters the price tag or other price marking on goods or merchandise of any store or retail establishment; o (3) Transfers the goods or merchandise of any store or retail establishment from one container to another; o (4) Interchanges the label or price tag from one item of merchandise with a label or price tag for another item of merchandise; or o (5) Wrongfully causes the amount paid to be less than the merchant s stated price for the merchandise. o People v. Olivo (NY) Leaving Store:A shoplifter need not leave the store to be guilty of shoplifting], as long as he or she exercised control of the goods wholly inconsistent with the owner s continued rights, which control may be demonstrated by several factors, including concealment of the goods under clothing or in a container, and possession of a known shop device such as a specially designed outer garment or a false bottomed carrying case. (5) GA Code Ann., 16-8-21 Removal or abandonment of shopping carts:(1)It shall be unlawful for any person to remove a shopping cart from the premises of the owner of such shopping cart without the consent, given at the time of such removal, of the owner or of his agent, servant, or employee. o (a)It shall be unlawful for any person to abandon a shopping cart upon any public street, sidewalk, way, or parking lot other than a parking lot on the premises of the owner.  The premises shall include all the parking area set aside by the owner or on behalf of the owner for the parking of cars for the convenience of the patrons of the owner. o (b) The owner of the store in which the shopping cart is used is required to post in at least three prominent places in the store and at each exit a printed copy of this statute, that must be printed in type no smaller than 12 points.  The removal or abandonment of shopping carts is a misdemeanor. (6) GA Code Ann., 16-9-121 Identify Theft:The crime of identity fraud is defined as the obtaining of identifying information of a person which would assist in accessing the resources of that person or any other person without authorization and with intent to unlawfully appropriate that person's resources to one's own use as a third party. o Vicks v. State (GA) Example:Evidence that person used another person's social security number when trying to open a bank account was sufficient to support the inference that the person used the SSN with intent to obtain the true number holder's assets, warranting identity fraud conviction, even though true number holder did not maintain any assets at the bank.

(D) EMBEZZLEMENT: Embezzlement is not a common law offense and thus is a legislative creation. y (1) Elements:Most embezzlement statutes set forth the following elements: o (1) That the DFcame into possession of the personal property of another in a lawful manner; o (2) That the DF thereafter fraudulently converted the property; and o (3) That the DF came into possession of the property as the result of entrustment by or for the owner of the property. y (1) Distinguished from Larceny: o (a) Manner of Obtaining Property: In embezzlement, the misappropriation of the property occurs while the DF has lawful possession of it. In larceny, it occurs generally at the time the DF obtains wrongful possession of the property. o (b) Mavrikis v. Stae (GA):An embezzlement differs from larceny in that in an embezzlement accused comes into possession of property lawfully, whereas in larceny property comes into hands of thief secretly and unlawfully, and in the former there is an entrustment and in the latter there is not. y (2) Conversion: The conversion required by embezzlement requires only that the DF deal with the

property in a manner inconsistent with the trust arrangement pursuant to which he holds it. No movement or carrying away of the property is required. The conversion need not result in direct personal gain to the DF. o Ex: A trustee who siphons off trust fund money in order to donate to a favorite charity is as guilty of embezzlement as the trustee who uses the converted funds to pay his overdue gambling debts. (3) Property:Embezzlement statutes are often worded in terms of property that may be subject to larceny ; i.e. real property and services may not be embezzled. However, some relatively expansive statutes make embezzlement of real property a crime. o Ex: A, an agent with apparent authority to sell B s real estate, fraudulently transfers the title to a bona fide purchaser. A is not guilty of embezzlement under the traditional embezzlement statute, but may be guilty under the more expansive statute. (4) Requirement that Property be that Of Another :Embezzlement requires that the property converted be that of someone other than the converter. Therefore, a person who borrows money, converts the sum to his own use, and subsequently fails to repay it isn t guilty of embezzlement. (5) Fraudulent Intent: A DF must intend to defraud for a conversion to become embezzlement. This appears to be the functional equivalent of larceny s specific intent to permanently deprive. o (a) Intent to Restore: (1) If the DF intended to restore the exact property taken, it isn t embezzlement. (2) But if he intended to restore similar or substantially identical property, it is embezzlement, even if it was money that was initially taken and other money, of identical value, that he intended to return. o (b) Claim of Right: As in larceny, embezzlement is not committed if the conversion is pursuant to a claim of right to the property, as where it is retained for payment of a debt honestly believed to be owed. The fact that the DF retained the property openly tends to establish a claim of right. (6) Necessity for Demand for Return:(1) If it s clear that there has been a conversion of the property, the victim need not make a demand that it be returned. (2) However, if there is doubt as to the existence of a conversion, a demand by the owner for return and a refusal to return by the DF may be necessary. (7) Limitation to Property Entrusted:Some states limit embezzlement to the fraudulent conversion of property entrusted or delivered to the embezzler. These states would not punish one who finds lost property and, while in lawful possession of it, fraudulently converts it.

(C) FALSE PRETENSES y (1) Elements:The offense of false pretenses was created by English statute in 1757, and consequently is part of the common law in those American states that use 1776 as the determining date. Like larceny and embezzlement, most jurisdictions distinguish grand false pretenses (a felony) from petit false pretenses (a misdemeanor). The offense of false pretenses generally consists of: o (1) Obtaining title; o (2) To the property of another; o (3) By an intentional (or knowing) misrepresentation of past or existing fact; o (4) With intent to defraud the other. y (2) Misrepresentation Required:False pretenses requires a false representation, whether in the form of writing, speech, or conduct. There are several limits upon the misrepresentations required for false pretenses. (These also apply to larceny by trick). o (a) False Representation Concerning Matter of Fact: The DF must have created a false impression as to the matter of fact. If his statements reasonably construed constitute only an opinion or a puffing, they are not representations.  Failing to correct: It isn t misrepresentation to fail to correct what is known to be a mistaken belief that the victim holds, if the DF wasn t responsible for creating that belief, or if the DF has no fiduciary duty to the aggrieved party. o (b) Misrepresentation Must Relate to Present or Past Facts: The misrepresentation must concern past facts or the present situation. A misrepresentation as to what will occur in the future isn t sufficient. A false promise, even if made without the present intent to perform, is also not sufficient. y (3) Requirement that Representation Be the Cause of Obtaining Property:The victim must actually be deceived by, or act in reliance on, the misrepresentation, and this must be a major factor (or the sole

cause) of the vicim passing title to the DF. (4) Nondisclosures:Generally, nondisclosure of a material fact does not constitute false pretenses, even if the omitter of the information knows that the other party is acting under a false impression. o However, nondisclosure constitutes misrepresentation if the omitter has a duty of disclosure, such as when he has a fiduciary relationship to the victim. (5) Intent to Defraud: Depending on the statute involved, the DF must either have known the statement to be false or have intended that the victim rely upon the misrepresentation. Subjecting the victim to a risk of loss will suffice. o Ex: A obtained money from B by representing that he was securing it by a first mortgage. He intended to pay back the loan. The mortgage actually given was, as A knew, a second mortgage. Held: A is guilty of false pretenses because he knowingly subjected B to a substantially greater risk of loss of the money than B was aware of. This was a sufficient intent to defraud.

(D) DEFENSES TO THEFT: y GA Code Ann., 16-8-10: o (1)It is an affirmative defense to a prosecution for theft by taking, theft by deception, theft by conversion, theft of services, theft of lost or mislaid property, theft by receiving stolen property  (a) That the accused was unaware that the property or service was that of another;  (b) That the accused acted under an honest claim of right to the property or service involved or under a right to acquire or dispose of it as he did; or  (c) That the accused took property/service exposed for sale intending to purchase & pay for it promptly or reasonably believing that the owner, if present, would have consented. o (2)A mere denial that the DF had the intent to deprive the owner of the property does not entitle the DF to a jury instruction relating to these affirmative defenses.

Test Review 1. Assume for the purposes of this question only that John is being tried for murder in GA. His lawyer raises the insanity defense and introduces evidence of John s mental illness. Question: John will most likely be relieved of criminal responsibility if the defense can prove that: a. John s actions were a product of his mental illness b. John could not appreciate the criminality of killing the victim or couldn t conform his conduct to the requirements of the law c. John did not know that killing the victim was wrong d. None of the above 2. King entered a the convenience store, walked toward clerk, and handed her a bag along with a note. The note recited as follows: I have a gun all the money from the cash register in the bag or I will kill you I have nothing to lose. The clerk testified that she never actually saw a weapon and that King did not place his hands inside his jacket or inside the bag in a manner indicating that he had a weapon. But she also testified that she could not see his right hand at the time of the robbery. She stated that she could not see what he was doing with his right hand-that he held it to his side underneath the counter. The clerk testified that when she first read the note, she became flushed, her eyes began watering, and she looked at him like are you serious? According to the victim, King nodded and said Yeah. The victim followed King's instructions, placing $50.00 inside the bag. King snatched it, and left the bank. The clerk testified that she was afraid that King was going to kill her, because of the note he had given her. King admitted that he robbed the store and gave a note to the victim telling her he had a gun. He denied actually having a gun on his person. Question: Which one of the following statements is a correct statement of the law with regard to King? a. King can t be found guilty of armed robbery b/c there was no proof that he had a gun or other weapon in his possession b. King can only be found guilty of theft because the amount in question was less than $500 c. King can be found guilty of armed robbery based on circumstantial evidence d. King can only be found guilty of robbery 3. The objectives of sentencing as discussed in one of our cases set forth the court s reasoning for entering a particular sentence. Question: Which of the following objectives was not part of the reasons set out by the Court as legitimate objectives for punishing people who commit crimes? a. For the protection of society b. To isolate the offender c. To encourage the offender to be law-abiding d. None of the above e. All of the above 4. In the US, the law is derived from four principal sources. Which of the following isn t considered to be a principal source from which federal and state government derive the law. Question: Which of the following is not considered to be a principal source from which federal and state government derive the law? a. Constitutional Law b. Administrative Law c. The Model Penal Code d. The Common Law

e.

All of the above

5. In construing an ambiguous criminal statute, the court should resolve the ambiguity in favor of the DF. Thus, in criminal cases where two reasonable interpretations of a penal statute exist, one inculpating and the other exculpating a DF, a court must employ the less harsh reading. Question: This principal is often called: a. The Rule of Stare Decisis b. The Rule of Ex Post Facto Prohibitum c. The Rule of Lenity d. The Rule of Res Ipsa Loquitor 6. In Jones v. State, the Court discussed 5 situations in which the failure to act may constitute a legal duty. Question: Which of the following isn t a situation discussed by the Court in that case? a. Where the common law imposes a duty b. Where a status relationship exists between the parties involved c. Where one has assumed a contractual duty to care for another d. Where one has voluntarily assumed the care for another and thereby precluded others from rendering aid to that person e. Where a person creates a risk of harm to another 7. It is been held to be unconstitutional for a judge to instruct the jury that the law presumes that a person intends the ordinary consequences of his voluntary acts. The prosecutor is required to prove every element of an offense beyond a reasonable doubt. Question: Which of the following opinions provides this rule of law? a. In re Winship b. Weems v. United States c. Trop v. Dulles d. All of the above 8. An attempt to commit a crime consists of three elements. Question: Which of the following is not one of those elements? a. The offender must have the requisite intent to commit the crime b. The offender must perform some overt act towards the commission of the crime c. The offender must take a substantial step which indicates an abandonment of the intent to complete the crime. d. The offender must fail in his or her attempt to complete the crime e. None of the above is the correct answer in this question 9. Susan went to a drinking establishment in Atlanta, Georgia where she met Kennedy. He invited her to accompany him to his house to go swimming. Before reaching the house Kennedy pulled the car into an isolated area, ripped off all his clothing in a seemingly uncontrolled fashion and told Susan that he wanted to have sex with her. He then reached over and embraced her. Susan did not resist Kennedy because she was afraid that if she resisted he might kill her. Suppose for the sake of this question that they had sexual intercourse. Afterward Kennedy drove her home. The next day Susan accused Kennedy with rape. Kennedy admitted having sex with Susan but stated that it was consensual. Question: Which of the following is a correct statement? a. Kennedy is not guilty of rape if at the time he was unaware of the risk that she didn t consent to intercourse. b. Kennedy would be guilty of rape if, at the time he invited her to his house he had no intention of going there, but instead planned to stop in a deserted place c. Kennedy would be guilty of rape if Susan honestly believed that she was going to be killed if she

didn t submit, even if her belief was unreasonable d. Kennedy would be guilty of rape so long as his conduct would lead a reasonable woman to believe that her life was in danger. 10. Suppose Kennedy took off all of Susan s clothes but was so drunk he was unable to maintain an erection. He was disgusted and he made her get out of the car and he drove home alone without her. Question: Which of the following would be a true statement? a. Kennedy couldn t be convicted of attempted rape unless it was his purpose to have intercourse and he knew that she did not consent b. Kennedy could be convicted of attempted rape even if he was only reckless with respect to her lack of consent c. Kennedy couldn t be convicted of attempted rape if his intoxication prevents him from completing the commission of the crime. d. Kennedy would not be guilty of attempted rape because he voluntarily abandoned his effort to commit the crime. 11. Darryl is an employee of All Star Pizzeria in Atlanta, Georgia. Jim, the owner of All Star Pizzeria, ordered Darryl to deliver five pizzas to a group of law students studying for their criminal law final exam. On the Way, Darryl became so hungry that he ate one of the pizzas. Darryl is charged, under Georgia's theft statute, OCGA Section 16-8-2 which provides that "A person commits the offense of theft by taking when he unlawfully takes or, being in lawful possession thereof, unlawfully appropriates any property of another with the intention of depriving him of the property, regardless of the manner in which the property is taken or appropriated." Question: On the charge, Daryl is: a. Not guilty, because his original possession of the pizza was lawful. b. Not guilty, because he never had more than custody of the pizza. c. Guilty, because he committed theft when he opened the pizza box. d. Guilty, because as an employee he originally had custody of the pizza, which custody ripened into unlawful possession when he ate the pizza. 12. Tom solicited Dick to murder Sally for a price of $10,000 and Dick agreed. Tom then approached Harry and solicited him to murder Sally for a price of $5,000, and Harry agreed. Dick and Harry were unaware that they both had been hired by Tom. Harry got to Sally first, killed her, and collected his $5,000 from Tom. The jurisdiction in which this crime allegedly took place uses the Model Penal Code as the basis for its conspiracy charges. The Model Penal Code at 5.03 provides that: (1) A person is guilty of conspiracy with another person or persons to commit a crime if with the purpose of promoting or facilitating its commission he: (a) Agrees with such person or persons that they or one or more of them will engage in conduct that constitutes such crime or an attempt or solicitation to commit such crime; (b) Agrees to aid such other person or persons in the planning or commission of such crime or of an attempt or solicitation to commit such crime. (5) No person may be convicted of conspiracy to commit a crime other than a felony of the first or second degree, unless an overt act in pursuance of such conspiracy is alleged and proved to have been done by him or the person with whom he conspired. Question: Under this statute, Dick is liable for: a. Conspiracy to commit murder, but not the murder itself because that was the subject of a separate conspiracy. b. Conspiracy to commit murder and the substantive crime of murder. c. The substantive offense, but not conspiracy. d. No criminal conduct. 13. Question: The idea and/or concept that the attempt to commit a crime was a crime in and of itself was

first recognized in the case of: a. Rex v. Higgins b. In Re Devon c. Rex v. Scofield d. None of these cases. 14. Pursuant to Ga. Code Ann., 16-4-1 (Attempt to Commit a Crime) A person commits the offense of criminal attempt when, with intent to commit a specific crime, he performs any act which constitutes a substantial step toward the commission of that crime. Question: However, under Georgia law a person may be convicted, if he or she has taken a substantial step toward the commission of a crime, of the crime of attempt and the attempted crime itself. a. True b. False 15. Pursuant to Georgia's homicide statute as set forth in OCGA Section 16-5-1 (c) "A person also commits the offense of murder when, in the commission of a felony, he causes the death of another human being irrespective of malice." Question: A person may be convicted of felony murder based on the underlying felony of distributing a controlled substance if that felony is inherently dangerous, and if the defendant directly causes the death. (for example, by overdose or a shooting connected with a drug deal) of the victim while in the commission of the felony. a. True b. False 16. Question: The Utilitarian Principle, which was discussed in class, stands for the principle that punishing persons who violate the law does not include which of the following: a. Deterrence b. Incapacitation c. Retribution d. Restoration e. Rehabilitation 17. In Georgia, there are two ways in which an individual may commit the crime of murder. Question: Which of the following charges would not apply to a charge of murder in Georgia. a. The death of a person occurred during the commission of an inherently dangerous felony during the commission of that felony. b. The death of a person occurred as a result of a person pointing a gun at another person and pulling the trigger with the intent of killing that person. c. The death of a person occurred as the result of criminal negligence of a drunken driver driving an automobile on the wrong side of the highway. d. The death of a person occurred as a result of a person shooting 18. John and Ellen go into a bank with the intention to rob the bank. As they are attempting to leave with the money, a security guard runs up to them and shoots Ellen and she dies. Question: Can John be convicted of felony murder? a. Yes, because he was a party to the crime of conspiracy to commit armed robbery. b. Yes, because he was committing an inherently dangerous felony. c. No, because he did have the necessary intent into to kill Ellen. d. No, because the guard was the proximate cause of Ellen s death. 19. The United States Supreme Court ruled that the execution of a person who was under the age of eighteen (18) years at the time of the commission of the crime for which the sentence of death was imposed was unconstitutional in which of the following cases? a. Trop v. Dulles b. Weems v. United States

c. d.

Coker v. Georgia Roper v. Simmons

20. Question: In which of the following cases did the United States Supreme rule that state criminal prosecutions require, upon demand, that a jury trial be afforded to a person charged with a criminal case in which penal servitude is a possibility as a sentence? a. Marbury v. Madison b. Trop v. Dulles c. Weems v. United States d. None of the above (Duncan v. Louisiana) 21. Question: In the State of Georgia, in the prosecution of a person for the offense of felony murder which of the following felonies would most likely not qualify as a sufficient underlying felony to support a felony murder conviction? a. Arson b. Kidnapping c. Theft by Deception d. Armed Robbery 22. Bob asked Susan to help him rob a bank. She agreed and provided Bob with a map of the bank floor plan. Bob later robbed the bank. Question: Bob and Susan could possibly be convicted of which of the following crimes: a. Robbery b. Solicitation of to commit robbery c. Conspiracy to commit robbery d. All of the above 23. Question: In Georgia, a person may be convicted of the offense of criminal attempt if the crime attempted was actually committed in pursuance of the attempt but may not be convicted of both the criminal attempt and the completed crime. a. True b. False