Criminal Law for Paralegals: Chapter 8 Introduction
Tab Text Chapter 8
Crimes Against the Person
Introduction This chapter addresses crimes against the person. It defines the various crimes against the person, ranging from assault to murder, and presents the elements necessary to establish the crimes.
Criminal activity requires a guilty mind/intent (mens rea) and guilty act (actus reus). Simply thinking about committing a crime is not sufficient to constitute criminal conduct; a person must also commit a criminal act. The category of crimes discussed throughout this chapter are the most serious crimes that can be committed; crimes against the person affect the safety of our entire society and, thus, receive the harshest of punishments.
Lecture Notes
Tab Text Homicide Homicide is the killing of one human being by another, without justification (authorization or self-defense)
Mens Rea & Actus Reus (guilty mind + guilty act)
Mens Rea = Intent
General Intent: Most crimes are general intent crimes, that is, the defendant intended to act and that act resulted in some criminal activity.
Example: Kent flew into a rage when he found his wife in bed with another man. He immediately started yelling and randomly throwing objects across the room. One of the objects he threw hit his wife in the head, knocking her unconscious. Kent is charged with the crime of battery, even though he did
not have the specific intent to harm his wife, his actions resulted in injury to her.
Specific Intent: Certain crimes, such as murder and rape, require that the prosecution prove that the defendant specifically intended to cause the resulting harm (e.g., holding a gun to a person’s head with the intent to kill him).
Unconscious Acts: Unconscious acts that result in injury lack the intent necessary for criminal actions.
Example: Joe, a diabetic, lapsed into a diabetic comma while driving on the highway. His vehicle crossed the medium and ran head-on into an oncoming vehicle, killing a father and his young daughter. The state did not prosecute Joe for manslaughter because his actions were unintentional.
Strict Liability Offenses: Strict liability offenses make an action illegal without regard to intent. The most common is statutory rape (sexual intercourse with a minor). With such crimes, the defendant’s state of mind is irrelevant to the criminal action.
Example: Chance, a 26 year-old, has sexual intercourse with Jessica, a 16 year-old. Chance is prosecuted for statutory rape, even though at the time of the encounter, he believed that Jessica was 18.
Murder Unlawful killing of another human being with malice aforethought
First-Degree Murder: Premeditated murder (consciously considering in advance how to commit a crime)
Elements:
1. The unlawful killing
2. of a human being by another
3. with malice aforethought
4. and with deliberation, specific purpose, or premeditation
Key Element: Premeditation is the key element in first-degree murder. It is the intentional and deliberate decision to take another’s life that constitutes first-degree murder.
Second-Degree Murder: Malice murder. Malice is the unlawful, deliberate intention to kill a human being without excuse, justification, or mitigation.
Key Element: The difference between first-degree murder and second-degree murder is the penalty. First-degree murder carries a life sentence and often the death penalty.
Manslaugher
Voluntary Manslaughter: Intentional killing committed in the heat of passion or with provocation
“Cooling off Period”: If the defendant had the opportunity, however slight, to “cool off,” then the killing may be premeditated and therefore, murder.
Statements v. Actions: Statements, without more, are generally not sufficient to constitute sufficient provocation for killing.
Involuntary Manslaughter/2nd degree Manslaughter: Criminally negligent homicide. The defendant generally causes the death of another because of his reckless or wanton disregard for safety.
Example: Keith is traveling 55 miles an hour in a 25 mile an hour “school zone.” As he rounds a curve, he hits and kills an 8 year-old girl, crossing in the sidewalk. He is charged with “negligent homicide.”
Key Element: No intent to harm is necessary for a charge of involuntary manslaughter.
Paralegal Practice Tip: Analyze the records, including police reports, witness statements, etc. to determine if there was any time period, however slight, that could be considered a “cooling off” period.
Assault and Related Offenses The difference between assault and battery is touching. An assault is an attempted touching, where no actual touching occurs. However, the threat of an “offensive touching” is real - the defendant has the ability to carry out the threat.
Battery: Battery occurs when there is an unlawful intentional offensive touching, either by the defendant or by an object that the defendant is holding (e.g., a baseball bat).
Unlawful Touching: A lawful touching occurs when a person has a legal right to touch another (police officer arresting a suspect) or implied consent (doctor treating a patient) or actual consent (boxer agrees to fight another boxer) exists.
Offensive Touching: To determine what an offensive touching is, we consider what a reasonably prudent person would consider to be offensive. It is not necessary that the touching harmed the victim.
Aggravated Assault/Battery Aggravated assault or battery occurs when:
1. Defendant is engaged in another crime (e.g., shooting during bank robbery)
2. Defendants assault/batters a protected group (e.g., law enforcement)
3. Victim suffers serious bodily injury (e.g., brain damage)
4. Battery/assault committed with deadly weapon
Child Abuse: Child abuse and neglect is one of the most disturbing crimes today. Children are helpless to defend themselves and often are intimidated into silence by their violators. Legislators are taking a more aggressive role in punishing those who are neglectful or abusive of our children. However, many of these incidents continue to go unreported.
Mayhem: Mayhem is the malicious and intentional disfigurement of another. Mayhem can be coupled with aggravated battery.
Kidnapping: Kidnapping occurs when there is an unlawful taking/confinement, with asportation (movement) by the use of force, threat, fraud or deception.
Key: The distinction between kidnapping and false imprisonment is movement - movement of the victim occurs with kidnapping and is,
therefore, subject to harsher penalties. (Rationale: It is more difficult to find a victim if she has been moved and it is much more difficult for a victim to escape her captors if she is unfamiliar with her surroundings).
Example: Macy’s boyfriend entices her to go on a picnic with him to a the local lake. On the way, he begins to threaten her and tell her that he expects her to “put out” for him when they get there. She begins to cry and tells him that she wants to go home. As soon as she expresses her desire to be “released” from the car and he fails to do so, a kidnapping has occurred, despite the fact that she initially consented to go with him to the lake.
False Imprisonment: False imprisonment is the intentional restraint of another by use of threats or force. False imprisonment does not require that the victim be physically restrained; in fact, false imprisonment most commonly occurs when a victim is threatened, coerced, or tricked.
Example: A young mentally handicapped man named Radio is repeatedly harassed by members of the local high school football team. One afternoon, the two members of the team force Radio to stand on a diving board platform. They tell him that if he moves from the platform, they will “clobber” him. He stands on the board for 4 hours before the football coach discovers him.
Stalking: Stalking occurs when an individual repeatedly harasses his victim (threatening notes, following, constant telephone calls, etc.) and causes emotional distress.
Paralegal Practice Tip: When stalking occurs, clients should be advised to record all incidents of harassments, including but not limited to the following: (1) advise client to report all incidents to police, (2) save harassing messages, keep track of incidents with a notebook, (3) if cell phone calls are received, keep the record of calls received, (4) get caller ID, (5) do not give out ANY information on the phone.
Identity Theft: Increasing, identity theft is occurring throughout the country. Identity theft occurs when a person “steals”/uses without permission the identity of another person. It can have long term effects on a person’s credit and, thus, their ability to buy a house, own a car, or a variety of other issues may arise.
Application
Tab Text Try the following. These do not have to be turned in.
1. Locate your state statutes on homicide. Using the element analysis tools mentioned in the chapter, break down the homicide statute into its essential elements.
2. Locate a recent murder case in the local newspaper. Match the actions of the case to the elements of murder as set out in this chapter. What charge would be justified? Why?
3. Based on your review of the Fortner, Marbles, and Kline cases (Appendix), list the crimes against the person that each defendant has committed.
It often helps to understand the imposition of the death penalty and homicide law in general if you can acquire the statutes in your state that set out the crime of homicide. If there is a separate statute authorizing the imposition of the death penalty, locate that statute. There are a great many misconceptions about the imposition of the death penalty, and you will benefit from an understanding of what the process is in your own states. In all states only the jury can impose the death penalty. Normally the jury does this in a second bifurcated trial that comes at the conclusion of the guilt and innocence phase of the trial. Usually most states require that some form of aggravating circumstance be present in a case before a jury would be authorized to impose the death penalty. A review of your own states’ aggravating circumstances will help the students better understand when and how the death penalty may be imposed in your state. You may have quite vocal viewpoints about the death penalty, either pro or con. Not all lawyers agree with the laws that they are asked either to prosecute or defend. You should be aware that old axiom taught to lawyers in law school, “You’re paid to advocate not to present your own views.”
Discussion Points
Tab Text 1. Why would a state specifically prohibit putting a mentally disabled or mentally ill person to death for first-degree murder?
Technically speaking, a person who is mentally disabled or mentally ill lacks the ability to form specific intent. Since specific intent is a requirement in a first-degree murder charge, that charge cannot be proven. States that allow the death penalty for murder cases only do so for murder in the first degree (often with additional aggravating factors).
2. Should suicide be legalized? Can you create an argument justifying legalization? How would you respond to an argument for legalization?
This answer will vary according to your opinions.
Chapter Review
Tab Text 1. Define pre-meditated murder.
2. What is the primary distinction between murder in the first degree and murder in the second degree?
3. How does “specific intent” factor into a consideration of homicide?
4. Explain motive.
5. Define “corpus delicti.”
6. Explain the Felony-Murder Doctrine.
7. What is the difference between voluntary manslaughter and involuntary manslaughter?
8. What is the significance of the “cooling-off” period in terms of prosecuting a murder charge?
9. Explain the difference between assault and battery.
Chapter Review Answers
Tab Text 1. Define pre-meditated murder.
Premeditated murder is the conscious decision to kill another person after reflecting on the action. Premeditation requires some period of time for reflection. This time period varies from state to state and depends a great deal on the facts of the case.
2. What is the primary distinction between murder in the first degree and murder in the second degree?
Without question the primary distinction between these two crimes is premeditation. Both crimes have identical elements, including malice, but the greater crime or murder in the first degree is based on the element of premeditation, i.e., that the defendant had time to consider his actions and then decided to take another person’s life.
3. How does “specific intent” factor into a consideration of homicide?
Some crimes require that the prosecution prove not only that the defendant acted voluntarily and knowingly, but also acted to commit a particular crime. Specific intent crimes are rare. Most crimes fall under the category of general intent crimes. Murder is a specific intent crime, meaning that the prosecution must prove that the defendant intended to commit the crime of murder at the time of the act. This proof is often based on the circumstances surrounding the crime.
4. Explain motive.
Motive refers to the reasons that a person commits a crime. Motive can involve hatred, lust, or greed. It is not a technical requirement of proof in prosecution, but it can often help explain or frame the defendant’s intent.
5. Define “corpus delicti.”
Corpus delicti refers to the body of proof against the defendant. The state’s entire case showing that the defendant is guilty of the crime is the corpus delicti. In a murder case, this would include the murdered body of the victim. However, there is no requirement that there must first be a body before a murder case can be proven. Many cases have proceeded to trial even when the victim’s body has never been recovered.
6. Explain the Felony-Murder Doctrine.
The Felony-Murder Doctrine is a judicially created philosophy that permits a person who kills another person during the commission of a felony to be tried for murder in the first degree, even when the element of premeditation that is normally required in such a prosecution is missing.
7. What is the difference between voluntary manslaughter and involuntary manslaughter?
In voluntary manslaughter, the defendant has intent, although he or she may lack the specific intent to murder. The defendant’s actions are
voluntary. In involuntary manslaughter, the defendant may have killed someone through negligence, rather than by intentional actions.
8. What is the significance of the “cooling-off” period in terms of prosecuting a murder charge?
A “cooling-off” period is an identifiable period of time between the provocation of the defendant and the killing of the victim. This period of time indicates that the defendant could have gotten his or her emotions back under control, but for some reason chose not to. This period permits a person to be charged with murder in the first degree.
9. Explain the difference between assault and battery.
An assault is the apprehension or fear of a harmful or offensive contact, whereas a battery is the actual harmful or offensive contact. Put another way, an assault is an attempted battery. Assault requires that the victim be aware of the attempted contact, whereas battery does not require the victim be aware of the harmful or offensive contact.
Chapter Quiz
Tab Text Click here for the Chapter Quiz.