Criminal Outline Spring 2010

General Foundations of

A. Principles of

B. Criminal Statutes

Elements of a Crime

• WHAT IS A CRIME?: A must commit: a voluntary act that causes a social harm, and at the time of the act, D must have had a culpable state of mind o (1) voluntary act o (2) o (3) social harm (result)/ attendant circumstances o (4) mental state • Elements 1-3 constitute , 4 is . o Actus reus- physical action; bodily actions that require conscious thought processes; cannot be reflex but can be habit. o Mens rea- mental component of the crime; requires some brain functioning. This requirement reflects some of the retributivist school of thought. It can also be utilitarian in that you cannot deter involuntary actions. • Sec. 2.01: Person is not guilty of an offense unless the conduct includes a voluntary act. o This does not include reflex, convulsion, sleep/unconsciousness, or hypnosis. Possession must be knowing. To some courts you can convict for possession of illegal substance even if the defendant didn’t know it was illegal. Just had to have known he possessed it. o EXCEPTION: unconsciousness is not an if the actor caused his own unconsciousness ( the defendant got drunk and killed someone while intoxicated)

A. Actus Reus a. What Constitutes the Act? i. Narrowest definition: (conscious) Conscious volitional muscular contraction. ii. Martin v. State : Martin was arrested at home, taken to highway where he became obscene and shouted profanities. He was arrested for public drunkenness. Statute said the offender had to “appear” in the public place in such a condition. Court overturned his conviction because he had not voluntarily appeared there, but had been brought forcibly by the . Thus it read the “appears” section of the statute as requiring voluntary action, though it wasn’t so specified. 1. Not guilty under MPC either: 2.01(2)(d)- not voluntary if the bodily movement is something other than the product of the effort or determination of the actor b. Omission as Actus Reus i. MPC 2.01(3): Omission only brings liability when statute specifically says that omission is an offense or when there is a legal duty to perform the act omitted. ii. Under Common Law you are not culpable unless there is a legal duty to act and you had knowledge or opportunity to act. iii. Voluntary act v. omission. A person who commits an omission didn’t create danger and may not be responsible for the social harm. Some say this is better left to moral authorities. We do not hold moral obligations sufficient to create legal obligations. It’s also difficult to punish for omissions because we don’t know who to prosecute. iv. Common Law Requirements for Legal Duty to Act: 1. special relationship: may be linked to blood relations or mutual dependence, but not casual affair 2. statutory duty 3. contractual duty (doctor, lifeguard) 4. defendant causes the danger 5. gratuitous undertaking v. Generally speaking, you are under no obligation to put yourself in danger to save someone else. This assessment of risk and inconvenience varies by court. vi. Ignorance of fact may be (didn’t know she was in danger), but ignorance of legal duty generally is not. And some omissions make you strictly liable. c. The MPC breaks down actus reus into three separate components – conduct, circumstance, and result. These are called material elements. These are the basic building blocks for defining each crime and for assessing blame and imposing appropriate punishment. They describe more precisely what the defendant did.

1) Conduct – the physical behavior of the defendant. 2) Circumstance – an objective fact or condition that exists in the real world when the defendant engages in conduct. For example, if a defendant enters a residence at night to steal something inside, the fact that his conduct occurred “at night” is a circumstance that describes what he did with more precision. 3) Result – the consequence or outcome caused by the defendant’s conduct. d. The MPC defines possession as an act or conduct when someone takes possession of an item and knows that he is accepting custody of an illegal item, then his “possession” is clearly a voluntary act under the MPC and he can be convicted of illegally possessing that item.

B. Mens Rea a. Common Law: Mens Rea as a measure of intent i. General Intent (can be inferred) 1. Intent to do the act that caused the social harm (this is not necessarily the intent to break the law). Voluntary action is enough to prove intent. 2. Example: Trespass as opposed to (because there is not proof that the defendant intended to commit a ) 3. Compared to MPC: recklessness or negligence. ii. Specific Intent (must be proven) 1. Intent to do something beyond the actus reus of a criminal offense. 2. Example: Burglary requires the intent to commit a felony beyond breaking into a dwelling. 3. Compared to MPC: purposely and knowingly. iii. : The defendant may be convicted for an act done with a “gross” lack of care. 1. Examples: involuntary and criminal nuisance. 2. This is a higher standard of negligence than that required by a civil court. iv. General and specific intent are often applied to entire crimes, i.e. is a specific intent crime and bigamy is a general intent crime. Unlike the MPC, these terms are not applied to each material of the crime. b. Model Penal Code General Overview: i. Intent is at issue, NOT motive. 1. Level of Intentionality: . Purposely i. Actor acts with purpose to bring about result. . Knowingly i. Actor is (practically) certain that the prohibited act will follow from his actions. . Recklessly i. Involves conscious risk creation. Resembles acting knowingly in that a state of awareness is involved, but the awareness is of risk, that is of probability less than substantial certainty. ii. Risk must be substantial and unjustifiable. How substantial and how justifiable are questions for the jury. . Negligently i. Does not involve a state of awareness unlike other three. ii. A person acts negligently when he inadvertently creates a substantial and unjustifiable risk he should have been aware of ii. Purposely: intends to harm 1. Conduct: conscious intent to engage in conduct (the act) 2. Result: conscious intent to cause the result 3. Circumstance: D purpose of circumstance if the D is “aware of existence of such circumstances or he believes or hopes that they exist iii. Knowingly: knows result is likely to occur even if he does not consciously seek to cause the result 1. Subjective test – whether D actually knew 2. Conduct: aware conduct is of that nature 3. Circumstance: aware circumstances exist 4. Result: practically certain conduct will cause the result 5. Risk must be substantial and unjustifiable 6. “Willfully:” §2.02(8), in statute often indicates knowledge as mens rea unless statute otherwise indicates 7. Willful blindness: §2.02(7), aware of high probability of existence  ignorance is not an excuse iv. Recklessness: knowledge of risk but conscious decision to ignore it  “consciously disregards a substantial and unjustifiable risk that the material element exists or will result from his conduct” 1. Circumstance: disregard risk that circumstance exists 2. Result: disregard risk that result will follow from conduct 3. MPC: Subjective test – aware of risk of harm stemming from conduct 4. Many courts make it an objective test

v. Negligently: not aware of the risks but should have been 1. MPC: objective standard 2. § 2,02(d), Failure to perceive the risk is a gross deviation from standard of care a reasonable person would have taken 3. Conduct: should have known conduct would bring result 4. Circumstance: should have known the circumstance existed 5. Result: should have known result would occur 6. Controversy over moral culpability . Civil standard of negligence v. criminal standard . Criminal: requires gross deviation from what reasonable person would do

Culpability Conduct Attendant Circumstance Result Level Purposely Defendant’s conscious Defendant is aware or hopes or Defendant’s object is to engage in such believes circumstances exist. conscious object is to conduct. cause this result. Knowingly Defendant is aware his Defendant is aware the circumstances Defendant is aware conduct is of this nature. exist. that the result is practically certain. Recklessly* Defendant consciously Defendant consciously disregards a Defendant (default disregards a substantial substantial and unjustifiable risk that consciously provision of and unjustifiable risk that the proscribed circumstances exist. disregards a mens rea) he is engaging in substantial and proscribed conduct. unjustifiable risk that the result will occur. Negligently# “Grossly” fails to “grossly” fails to recognize an “grossly” fails to recognize a substantial unjustifiable risk that the proscribed recognize a and unjustifiable risk he is circumstances exist. substantial and engaging in this conduct. unjustifiable risk that the result will occur.

c. Transferred Intent: when a defendant contemplates or designs the death of another, the purpose of deterrence is better served by holding that defendant responsible for the knowing or purposeful of the unintended as well as the intended victim. i. Transferred intent exception = misidentification

d. of Fact and Law i. Mistake of Fact and according to MPC 2.04 starts to bring them together. 1. Relevance of mistake of fact or of law is determined by the requisite level of culpability. 2. Mistake of fact or of law can undermine prosecution if it negates the required level of culpability, i.e. mens rea. . Ex. If the mens rea is knowingly and the person is ignorant to a material fact, this ignorance negates the required mens rea, the “knowingly” (knowingly stole government property).

e. Mistake of Fact on its own: i. What is it? Ignorance of a material fact of the crime. 1. Practice exam: The defendant claimed mistake of fact because he thought she was playing the “rescue game,” not drowning. (Apply MPC: Does this mistake negate the mens rea of the negligent statute)? . No. Mens rea was “negligence,” he should’ve known to check on child when she is swimming alone in a pool, there is an unjustifiable and substantial risk here. . Statutory : The defendant thought she was over 16 (KEEP IN MIND: statutory rape is a strict liability crime, and therefore, this cannot be a defense). 2. Common Law: . Requirement of reasonableness: Traditionally, a mistake of fact must be reasonable. . Many courts, however, have not required a showing of reasonableness where the mistake is offered to negate the existence of a specific intent required for guilt. . The requirement of reasonableness has generally been accepted without critical analysis. 3. MPC . Reasonableness  MPC 2.04(1)(a): The mistake of fact need not to reasonable as long as it negates “purpose, knowledge, belief, recklessness or negligence required to establish a material element of the offense.” . Morality and legality of conduct: i. MPC 2.04(2): The defense of ignorance or mistake is not available if the defendant would still have been guilty of a criminal offense (not a question of morality) had the facts been as he believed. ii. Also, a defendant may be held liable for an offense no more serious than he would have been guilty of had the facts been as he believed them to be. MPC. § 2.04(2). 1. Example: Heroin = higher punishment, cocaine = lesser punishment. If defendant is carrying heroine, thinking it is cocaine, he does not have a mistake of fact defense in that he is acquitted, but he will not be charged with carrying heroin. f. Mistake of Law on its own: i. What is it? In general, issues concerning the defendant’s ignorance or mistake of law arise in two different contexts: 1. Because of ignorance or mistake, the defendant lacked the mental state required for a conviction OR 2. The defendant had the requisite mental state but was mistaken about the applicable law and consequently believed his conduct was not prohibited by the criminal law.

ii. Common Law: 1. Society is more mobile and it is unrealistic for someone to know the law in every place they visit or move to compared to times when people stayed in the same spot. 2. Reasonableness: mistake must be objectively reasonable… 3. BUT SC: Indicated that limiting to reasonable mistakes (whether law or facts) may violate 6th amendment right to have jury to determine guilt or innocence. 4. US v. Cheeks : “A mistaken belief in the law need not be a reasonable one to negate the willfulness requirement of a statute if that belief is an honest one.” . Cheeks’ mistake was not that he didn’t know evading taxes was illegal, but that he mistakenly interpreted the provision defining taxable income. Sometimes called the “different law mistake.” . Whether or not a mistake is honest is up to the jury. . BUT an honest mistake that a law is unconstitutional is not a reasonable defense (this is obviously not a mistake of law, but an honest belief that the law you know about should not apply to you because it infringes on your rights).

iii. What about mistake of fact/law with strict liability crimes? 1. Under the MPC, mistake of fact/law is only a defense if it negates the required mens rea. Strict liability crimes, such as statutory rape do not have mens rea requirements, so there is no mistake of law/fact defense for strict liability crimes

Statute Requires: Specific Intent General Intent

Reasonable Mistake of Law - Exonerates Guilty

Unreasonable Mistake of Law - Exonerates Guilty

Reasonable Mistake of Fact - Exonerates Guilty

Unreasonable Mistake of Fact - Exonerates Guilty

g. Strict Liability . No mens rea required . According to the MPC, strict liability should only apply to violations, offenses that do not incur jail time or probation, and that are punishable in the interest of public welfare. . Strict liability crimes: o Statutory rape, felony murder. • Is there ever a defense for a strict liability crime? o Yes, argue that there was no act! (Ex. Speeding while under hypnosis)

C. Causation a. cause in fact- requires the government to prove that but for the actions of the defendant, the result would not have happened when it happened “But for” clause, i.e. but for the act, would the result have occurred? i. Negligence of the victim or of 3rd party does not automatically negate “but for” (though it may negate proximate causation). ii. Speeding up an inevitable result does not negate “but for” – mercy killing, though speeding up the inevitable death, does not negate “but for” the defendant’s actions the victim died. iii. “But for” cannot be read too literally, however. But for my parents meeting, I would not have attended today’s review session. b. proximate cause- determine whether the defendant, as a matter of fairness, should be held liable for the criminal activity  is established when the result is a natural and probable consequence of the defendant’s act and there are no voluntary and intervening actions that supercede the defendant’s actions and break the causal chain 1. Superceding actions: An additional act or occurrence that breaks the causal chain, i.e. supercedes the defendant’s actions as the legal cause (usually a human action). 2. Intervening actions: An act that is set in motion after the defendant’s act. Therefore, a preexisting condition cannot be a superseding factor to break the causal chain. a. Stephenson (Woman is kidnapped and tortured. She swallows mercury pills, refuses medical attention and later dies. Her kidnapper is not liable because her taking the pills is not a natural consequence of his actions (it is superceding). b. Campbell (Two guys were drinking. Campbell hated the V because the c. V slept with his wife. Campbell encourages V to kill himself and gives him the gun. V kills himself. Campbell not guilty of murder – the V pulled the trigger, this is the voluntary, intervening, action that supercedes Campbell’s actions). c. Forseeability: The result must be foreseeable by the defendant. i. What is the “it” that must be foreseeable? This can vary. For example, in Arzon, the “it” is not the firefighter’s death, but the imminent danger in starting a fire. ii. Foreseeability does not mean probability. iii. Often comes down to participating in dangerous behavior. d. But then we come to the tension: e. Foreseeability on the one hand and the subsequent human action that breaks the causal chain on the other. i. If an intervening voluntary act breaks the causal chain, there is no proximate cause. 1. An intervening voluntary act assumes free will, choice and voluntary action on the part of the intervening actor. 2. What if the death is foreseeable but the defendant doesn’t “pull the trigger”? Think Dr. K and his suicide machine. Deaths were completely foreseeable, but the patient ultimately injected the poison. f. MPC 2.03 and Causation g. MPC provides that the defendant causes a result unless the manner in which it occurred is too remote or accidental to have a just bearing on the defendant’s liability. i. Takes into account “but for” and proximate cause. ii. MPC §2.03(3): Recklessly or negligently causing a result may lead to liability if the result was probable within the risk the actor knew, or should have known, of. iii. MPC §2.03(3)(b): If an event is too remote from the actor’s act, the actor is not criminally liable. How remote a result is, is a question for the jury entirely.

Proof

D. and Proof of the Elements o Proof beyond a reasonable doubt o Defining reasonable doubt o Jury instruction must be reviewed in their entirety. Phrases may not be examined in isolation. And to see if the defendant suffered any harm from an ambiguous erroneous instruction, the court considers “whether the ailing instruction by itself so infected the entire trial that the resulting conviction violates due process. o Jurisdiction and venue o Venue is usually where the act occurred

Crimes E. Homicide • Homicide is defined by the common law as the unjustified and unexcused killing of a human being. • Homicide is divided in most jurisdictions into two major categories, murder and manslaughter. o Murder is then divided into first degree (for which a defendant could be executed) and second degree (which did not carry the death penalty). o Manslaughter was viewed as a less serious killing and was not initially divided into degrees. However, over the years many states divided manslaughter into voluntary (or first degree) and involuntary (or second degree) manslaughter. a. Murder

• Murder was originally defined as a killing with malice aforethought • Malice Aforethought is defined as killing with: o Intention to cause the death of, or grievous bodily harm to, any person… o Knowledge that the act which causes death will probably cause the death of, or grievous bodily harm to, some person…although such knowledge is accompanied by indifference or by a wish that it may not be caused • It is easy to see why 1) is covered because anyone who intends to kill should be considered to have malice. • Under 2), persons who, though not intending to kill, nevertheless acted in a way that they knew created a very high risk of death, and not caring whether death occurred or not, were said to act with a “depraved and malignant mind”. • Those people under 2) who knowingly create a great risk of death generally, and actually kill someone, can be found to have acted with malice aforethought toward the victim. This is also sometimes called implied malice. • Malice can also be presumed o A person is presumed to intend the “natural and probable consequences of his act” o Killing committed with a deadly weapon (defined as a weapon calculated to or likely to produce death or great bodily injury) was presumed to have been committed with malice.

i. First Degree Murder: is murder that is premeditated, willful and deliberate 1. planning activity 2. motive 3. manner of killing ii. Second Degree Murder (default position): If a killing was murder (committed within the broader notion of “malice aforethought”) and was not premeditated, it was second degree murder. These killings were not capitally punishable, although they might result in a life sentence. iii. To determine under a statute dividing murder into two degrees whether a murder was first or second degree requires three steps: 1. Was the killing a “murder” (was it done with malice aforethought)? 2. If so, was it “premeditated, deliberate, and willful”? 3. If yes, it was first degree murder; if not, second degree. b. Murder and the Model Penal Code

• The MPC abolishes the distinction between first and second degree murder and instead it characterizes as “death eligible” all killers who cause the death of another human being… o purposely; o knowingly; or o recklessly under circumstances manifesting extreme indifference to the value of human life. • The MPC’s definition of “reckless” would require that the defendant subjectively recognize the risk of death. Even if the defendant is reckless, the death must also occur under circumstances manifesting extreme indifference. If this is not true, and the defendant is merely reckless, the death is manslaughter not murder. o does not reduce to manslaughter as in common law . Not provocation, but . . . . §210.3(1)(b): A killing that would otherwise be murder is manslaughter if it is “committed recklessly” and “under extreme emotional or mental disturbance for which there is a reasonable explanation or excuse. The reasonableness of such explanation or excuse shall be determined from the viewpoint of a person in the actor’s situation under the circumstances as he believes them to be.”

c. Felony Murder

• The declares: any death occurring during the course of a felony is murder (2ND DEGREE MURDER) o The doctrine imposes liability (and perhaps punishment) for murder whether a felon kills intentionally, recklessly, negligently, or even non- negligently. It is almost a form of strict liability. • Most courts have found ways to limit the application of the felony murder rule. There are problems in the application of the felony murder rule whereby a felon is a but for cause of the murder but is not he proximate cause. • Courts have also limited the rule by requiring that the killing be “in furtherance” of the felony • The felony murder rule applies while a defendant is attempting a crime or escaping from the scene • The MPC also limited the doctrine, allowing its application only in cases involving , rape, , burglary, , or felonious escape. In those cases, the MPC raises a presumption that the defendant was murderously reckless with regard to the possibility of death. • Test for inherently dangerous  look at statue in the abstract, or look to the fact and circumstances d. Manslaughter • Manslaughter is usually defined as “an unlawful homicide without malice aforethought.” This is then subdivided between “voluntary” and “involuntary” manslaughter, then further explained as follows: o Voluntary manslaughter is a killing done “on a sudden” in the “heat of passion” after “adequate provocation” o Involuntary manslaughter is either “merely” reckless (but not the result of a depraved mind) or “criminally negligent” killing.

i. Voluntary manslaughter: 1. Most courts had come to the conclusion that only a killing . engendered by an act recognized as “legally adequate provocation” and . actually done suddenly, in the heat of passion, would be reduced to a category of homicide called “voluntary manslaughter”, for which the punishment was significantly less than murder.

ii. The courts have articulated 2 conflicting themes as to why manslaughter is a reduced sentence: 1. Voluntary manslaughter was indeed a murder but because of the law’s regard for the frailty of mankind, the punishment was reduced. 2. The defendant killed in a frenzy brought on by sudden provocation at a time when reason was dethroned, so there was no mens rea.

. In the first situation, the defendant is a murderer because he has intentionally taken human life. Under the second, the defendant has no mens rea, he is not a murderer and should be exonerated. . Courts have limited the kinds of events that would satisfy the requirement of a legally adequate provocation to (common law)… o a , mutual combat, or aggravated o adultery . Under the adequate provocation doctrine, words alone could never constitute adequate legal provocation.

iii. Heat of Passion: 1. This doctrine reflects one of the original understandings of the reason for the reduction – that the defendant acted in a rage in response to the provocative act. Claming heat of passion requires that the defendant not have any time to cool off. 2. Some changes in the original doctrine of adequate legal provocation were anything that could cause the reasonable man to act in passion or the “reasonable man” test. Also, the cooling off period has recently been relaxed to allow a cooled off person who has been rekindled. e. Manslaughter and the Model Penal Code

. The MPC rejects the rigidity of the common law on heat of passion killings. It provides that a killing which would otherwise be murder is manslaughter if it is done under extreme emotional or mental disturbance for which there is a reasonable explanation. o There is no cooling off period in the MPC’s version of manslaughter o Any impetus for the disturbance is sufficient; it is not limited to legally adequate provocation.

F. Rape

• Rape historically were about protecting women’s virginity; regarded women more as property • Currently, rape law is more about sexual relations between men and women and what the criminal law’s role is in those relationships o More focus on rape as crime of violence o Violating rights o Can be against male or female

Model Penal Code I. MPC §213 a. Expands behavior that constitutes rape b. Provides for degrees of rape c. Focuses on behavior rather than internal thought process d. But, still does not use sex-neutral terms, maintains marital immunity, allows mistake of age defense e. Seems to offer Ds protection II. MPC §213: Elements of rape a. Sexual intercourse b. by man w/woman not his wife c. by force or d. by threat of serious physical harm or kidnapping to victim or third person III. MPC: also rape in case of drugs or unconscious IV. MPC: 1st v. 2nd Degree a. Basic is 2nd degree (§213.1(1)), but if D inflicts serious bodily harm on victim or victim was not a “voluntary social companion of the actor . . . and had not previously permitted him sexual liberties” it is 1st degree rape i. Can be problematic for date rape cases V. Statutes: many are now gender-neutral, include more acts, shift from focus on subjective thought process of D to objective conduct; many retain spousal immunity

Actus Reus: Look to the statutes for the elements of the crime (not MPC) I. Result/Conduct: Sexual Intercourse a. Definition has been expanded in statutes and MPC II. Conduct: Force a. Actual force – Physical i. Men have to use force if women resist b. Threat of force i. Whose point of view? D or P? ii. Often victim’s fear must be reasonable to count iii. Nonphysical threat: 1. State v. Thompson: (MT) threatens not to let student graduate; ruling that is not “force” for purposes of rape; statute did not say anything about so you could not argue that she did not give consent 2. Commonwealth v. Mlinarich: threat to return victim to juvenile detention center; not rape b/c no physical force III. Resistance a. Not always required by statute b. Related to whether she consented, whether force was used (men would have to use force if woman resisted) c. Brings up issue: how does man know what woman wants and when she is resisting? Does no mean yes? IV. Circumstance: Consent a. By having consent as an element, it shifts focus to victim’s behavior rather than D’s i. Based on victim’s Words and Actions b. Non-consent? i. In re John Z: (CA 2003) victim withdraws consent; rule that withdrawal is the same as no consent; question as to the clarity of victim’s withdrawal and the time frame for allowing D to stop ii. Commonwealth v. Sherry: victim goes home from party w/ guys, 3 have sex w/ her; D claims he did not know she did not consent; subjective view of D is not defense – need to look objectively iii. Do you need to say “No” iv. Do you need actual physical resistance? c. Can be unclear i. State v. Rusk: (Md.); D took car keys and lightly choked victim; lack of consent was established even without specific words/actions on victim’s part – court ruled that proof of failure to resist b/c of fear can establish lack of consent d. Statutory Rape: cannot legally give consent i. MPC allows for considering D’s belief about age e. Unconscious/mentally incompetent people cannot give consent V. Circumstance: Deception a. General rule is that sex by deception is not rape b. People v. Evans: D lied about conducting experiment and got victim to have sex with him, not rape c. Some states allow affirmative defense where D must prove he thought victim consented

Mens Rea I. Circumstance: Consent a. Can be difficult to establish D’s mens rea b. Do you prove D knew or should have known that woman did not consent? II. Look to statute a. Under MPC, default is recklessness, but many states have negligence standard (lower than recklessness) which means D would be liable if he did not know but should have b. Consequence of negligence standard: maybe men do not get to have as much sex as they would like, but a higher standard might have a higher price – more victimization of women c. Strict liability standard? Mistake of fact (consent) not a defense in MA III. Conduct Force: a. Did he purposely force her? b. Did he force her with reckless mens rea?

G. and Property Offenses

Inchoate Crimes and Liability H.

I.

J.

K. Liability

Defenses

L. Defenses

M. Defending Self, Others, and Property

N. and Duress

O.

P. Insanity and Diminished Capacity

Q. Intoxication