Criminal Law

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doctoroflaw91
Posts: 374
Joined: Sun Dec 15, 2013 10:38 am

Criminal Law

Postby doctoroflaw91 » Sun Jan 26, 2014 5:15 pm

I could use some assistance with criminal law.

Someone kindly posted on here a few years back with a law comparing the common law and MPC requirements for the various elements of criminal law. Now I am wondering if anyone has a checklist or attack outline for criminal law that I could use to start getting a feel for how to approach questions.

In particular, I am finding the mens rea requirement to be confusing.

Many thanks everyone. I am happy to reciprocate with any information regarding contracts, torts, or property.

Mredav44
Posts: 52
Joined: Tue Jul 09, 2013 11:50 am

Re: Criminal Law

Postby Mredav44 » Sun Jan 26, 2014 8:08 pm

Criminal Law Definitions –
A. Common Law

Actus Reus + Mens Rea + Causation = Crime
Actus Reus + Mens Rea = Causation

Actus Reus – “A voluntary act that causes social harm” / Culpable act itself
- Omissions – exist only if there is a duty (5 duties)
- Intent – Desire/Conscious Object, or Know with Virtual Certainty

Mens Rea – “The guilty/more culpable mind”
- General intent – the act itself is sufficient to establish intent
- Specific Intent – designates a specific elemental mens rea for each offense
o L.A.C.E.B.R.A.S
- Strict Liability – does not require any mens rea

Causation – “divided into 2 parts, Actual Cause and Proximate Cause”
- Actual Cause – “but-for test”
o Accelerating a death = both actors are actual causes, but original actor may not always be held liable
o Concurrent Causes = two independent sources, each act alone was sufficient to cause the result that occurred (determine if Sub. Factor)
- Proximate Cause – “if there is an intervening cause, determine whether it’s foreseeable or unforeseeable (foreseeable = liable), (unforeseeable = not liable)”
o Direct cause = no event of causal significance intervenes
o Intervening cause = foreseeable = liable, unforeseeable = not liable
• Superseding Intervening = not liable
• Apparent Safety Doctrine
• Free, Deliberate, Informed Human Intervention
• Non-Superseding Intervening = liable
• Intended Consequences Doctrine

Homicide – “the unlawful killing of a human-being by another human-being with malice aforethought.”
• 1. Intent to Kill another human-being (express malice)
• 2. Intent to inflict grievous bodily injury on another (implied malice)
• 3. Extremely reckless disregard for the value of human life (Depraved Heart Murder = implied malice)
• 4. Felony-Murder (implied malice)
o Res Gestae Principle – Time, Distance, Causal requirements
o Must be inherently dangerous (abstract, or by facts of case)
o If the predicate felony hooks, then it is not sufficient for felony-murder, e.g., assault/battery/manslaughter = merge, robbery does not






Felony Murder cont’d –
1.) Agency Approach (Majority) – The defendant’s must do the killing in order to be responsible
2.) Proximate Cause Approach (FL) – If anyone dies, the defendant’s are responsible
3.) Limited Proximate Cause Approach – “Good guy, bad guy rule”;
a. If good guy dies = defendants liable
b. If bad guy dies = defendants not liable

Manslaughter – “the unlawful killing of a human-being by another human-being without malice aforethought”
• Voluntary = Intentional = Heat of Passion
o Heat of Passion = “Intentional killing done in a sudden heat of passion, as a result of adequate provocation, before there has been reasonable opportunity to cool off”
• Involuntary = Unintentional = Negligence
o Act was lawful in itself, but done in an unlawful manner
o Should have been aware, but was not, that there was an unjustifiable risk
• Misdemeanor Manslaughter = “Unintended killing that occurs during the commission or attempted commission of an unlawful act NOT amount to an inherently dangerous felony, or is a misdemeanor”
• Must still prove causation!

Self Defense –
1.) Necessity Component
2.) Proportionality Component
3.) Reasonable Belief Component

Force – a non-aggressor is justified n using force upon another if he reasonably believes such force is necessary to protect himself rom imminent use of unlawful force by the other person
• 5 requirements:
o Threat
o Unlawful and Immediate
o Imminent Peril
o Reasonable
o Proportional

Deadly Force – Deadly Force is ONLY justified in self-protection if the actor reasonably believes that its use is necessary to prevent imminent and unlawful use of deadly by the aggressor

Aggressor – One who provokes an assault/battery through use of words or actions
- If Deadly Aggressor = then can only remove status of aggressor by withdrawing from conflict in good faith and communicating this fact either expressly or impliedly to the victim
- If Non-Deadly Aggressor = then when victim of non-deadly assault responds with deadly force, the original aggressor IMMEDIATELY regains his right of self-defense

Resisting an Unlawful Arrest – the victim of excessive police force is entitled to use reasonable force to protect himself, including deadly force, if his life reasonably appears in jeopardy (self-defense doctrine applies)

Defense of Others –
- Modern Majority – an intervenor may use deadly or non-deadly force to the extent that such force reasonably appears to the intervenor to be justified in defense of the 3rd party
- Alter Ego Rule (FL) – You step into the shoes of the other party

Defense of Property – Never allowed to use deadly force to defend property
- Once a person is disposed of his property, his right to use force to defend his interest is extinguished
o Exception – A person who acts promptly after dispossession may use non-deadly force, as reasonably necessary, to recapture his property

Defense of Habitation –
1.) Early Common Law (FL) – a home-dweller may use deadly force upon another if he reasonably believes that such force is necessary to prevent an imminent and unlawful entry of his dwelling
2.) Middle Approach – A person may use deadly force if he reasonably believes that a.) the other person intends an unlawful and imminent entry of the dwelling, b.) the intruder intends to injure him or another, or to commit a felony therein, and c.) deadly force is necessary to repel the intrusion
a. Can’t shoot your drunk neighbor trying to come into your home by mistake
3.) Narrow Approach (Majority) – A person is justified in using deadly force upon another if he reasonably believes that a.) the other person intends an unlawful entry of the dwelling, b.) the intruder intends to commit a forcible felony (murder, robbery, burglary, rape, or arson) and c.) such force is necessary to prevent the intrusion
a. Can only use deadly force if person intends on committing forcible felony
i. Remember – Defense of Habitation is triggered when an intruder attempts to enter the dwelling unlawfully!

Spring Guns – You act at your own peril if you set up spring guns (you must, in fact, be able to kill V), e.g., if D kills V, a police officer, because D reasonably believes V is a felonious intruder, then he is justified n defending his habitation. However, if D’s spring gun kills the same V (police officer), D is not entitled to defense


Duress – 5 elements -> duress negates mens rea
1.) Another person threatens to kill/seriously injure the actor or 3rd party
2.) Actor reasonably believed the threat was genuine
3.) Threat was imminent
4.) No reasonable escape
5.) Actor was not at fault
Duress = human threats; at Common Law, Duress = NOT a defense to murder



Necessity – “Necessary to prevent an even greater harm from occurring”
- Choice of Evils defense
- Necessity Negates Actus reus
- Economic necessity = not a defense
- Necessity is NOT a defense to murder

Intoxication – Intoxication is a disturbance of mental or physical capacities resulting from the introduction of any substance into the body, either drugs, alcohol, or other foreign substances
- Voluntary intoxication – Knowingly ingesting intoxicating substances
o Not a defense to General Intent crimes
o Could be a defense to Specific Intent crimes
o FL = voluntary intoxication never a defense to any crime
- Involuntary intoxication – when an actor is not to blame for being intoxicated
o Goes to mens rea
o If you use medication for first time, then you have defense
• 3 circumstances:
• Person is coerced to ingest intoxicant
• Person ingests intoxicant by innocent mistake
• Person becomes unexpectedly intoxicated from prescription
o Person that is involuntary intoxicated = entitled to defense

Diminished Capacity – mental abnormality, less than insanity
- Mens rea variant -> works w/ specific intent
o If no mens rea, then no crime
- Partial restraint variant -> from murder to manslaughter

Infancy – Under 7 = never liable; Over 14 = full capacity

Insanity –
1.) M’Naghten (Majority) – a person is insane if at the time of her act, she was laboring under such defect of reason, arising from a disease of the mind that she 1.) did not know the nature and quality of her act, or, 2.) if she did know, she did know that what she was doing was wrong
2.) Irresistible Impulse – a person is insane if at the time of the offense: 1.) she acted from an irresistible impulse, 2.) she lost power to choose between right and wrong, 3.) the defendant’s will has been involuntarily destroyed and her actions are beyond her control
3.) MPC –a person is not responsible for her criminal conduct if, at the time of the offense, as a result of a mental disease or defect, she lacked substantial capacity to a.) appreciate her criminality (or wrongfulness), b.) she was unable to conform her conduct to the requirements of the law
4.) Durham/Product Test – a person should be excused if her unlawful act was the product of a mental disease or defect (but-for sense)
5.) Federal Test – a person is excused if she proves by clear and convincing evidence that at the time of the offense, as a result of severe mental disease or defect, she was unable to appreciate: a.) the nature and quality of her conduct, or b.) the wrongfulness of her conduct


Attempt – “a criminal attempt occurs when a person, with the intent to commit an offense, performs some act done towards carrying out the intent”
- 2 intents:
o Intent to Commit the Act
o Specific Intent of the Crime
- Must be in perpetration, not merely preparation
- Attempt merges with substantive offense (attempt = inchoate)

Complete (but imperfect attempt) -> shoot at V, but miss
Incomplete -> must distinguish between preparation and perpetration

Example – Attempted Manslaughter
• Attempted Voluntary Manslaughter = Intentional = Heat of Passion = YES!
• Attempted Involuntary Manslaughter = Unintentional = Negligence = NO!

Example – Attempted Felony Murder
- 48 states do NOT recognize this offense
- However, FL does recognize this offense

Tests of Attempt (Actus Reus)
1. Physical Proximity Doctrine – act must be proximate to the completed crime directly tending toward the completion or must amount to the commencement of consummation -> Must be able to be committed immediately
2. Dangerous Proximity Doctrine – greater the gravity and probability of offense and the nearer the act to the crime, the stronger the case -> Nearness, Greatness, Degree of Apprehension Felt
3. Indispensable Element Test – the actor must have obtained control over an indispensable element of the crime
4. *MPC* – Substantial step that corroborates the actor’s criminal purpose -> begins Perpetration
5. Probable Desistance Test – if in ordinary and natural course of events, w/o interruption from outside source, conduct will result in crime
6. Abnormal step – step that goes beyond the point where the normal citizen would desist
7. RIL/Unequivocality Test. – actor’s conduct manifests an intent to commit a crime -> Must be certain the crime will occur -> jury determine from conduct alone, absent words, manifested attempt
8. Last Act – occurs only when the person performed all acts believed necessary to commit offense -> works only with complete attempts

Attempt Defenses –
1.) Pure Legal Impossibility – is a defense (the act is not a crime)
a. Pure Legal Impossibility exists when the actor engages in conduct he believes is criminal, but the act is not prohibited by law”
2.) Hybrid Legal Impossibility – legally impossible -> determine the “legal status”
a. “Hybrid Legal Impossibility exists when the actor’s goal is illegal but commission of the offense is impossible due to a factual mistake regarding the legal status of some attendant circumstance that constitutes an element of the charged offense” (IS A DEFENSE AT COMMON LAW)
3.) Factual Impossibility – NOT a defense at CL, legally possible
a. “Factual Impossibility occurs when the D’s intended end constitutes a crime but she fails to consummate it because of a factual circumstance unknown to her or beyond her control”

Defense of Abandonment = Common Law = NOT a defense
(FL = abandonment is a defense; MPC = abandonment is a defense)
Assault – “An unlawful attempt coupled with a present ability to commit a violent injury on the person of another” (an attempt to commit a battery) (specific intent)
Battery – “Unlawful application of force to another willfully or in anger” (general intent)
Solicitation – “Occurs when a person invites, requests, asks, commands, hires, or encourages another to engage in conduct constituting a felony, or misdemeanor, relating to obstruction of justice or a breach of the peace.” (inchoate offense)
- The very moment you ask, the crime is complete
- If other person agrees, then crime merges with conspiracy
- Solicitation occurs even other feigns agreement
- Solicitation also merges with attempt; Solicitation merges with actual crime
- Use of Innocent Instrumentality = not solicitation; you are P1 (guilty of crime)
MAJORITY – Solicitation itself does not constitute an attempt to commit actual offense

Accomplice Liability
1.) P1 – commits the crime
a. “Perpetrator who actually commits the crime, either by his own hand or by an inanimate agency, or by an innocent human agent”
2.) P2 – (look-outs/ get away drivers) aids, counsels, commands, encourages the commission in presence
a. “Abettors who are guilty of the crime by reason of having aided, counseled, commanded, or encouraged the commission there of in his presence, either actual or constructive”
3.) ABF – does the same thing as P2, but NOT PRESENT
a. “Inciters who are guilty by reason of having aided, counseled, commanded or encouraged the commission thereof in his presence, without having been present either actually or constructively at the moment of perpetration”
4.) AAF – criminal protector
a. “Criminal protectors who, with knowledge of the other’s guilty, render assistance to a felon in the effort to hinder his detection, arrest, trial or punishment”
(In FL – P2’s and ABF’s = P1’s)

Mens Rea of Accomplice Liability – 1.) intent to aid, and 2.) intent to commit the crime

Natural and Probable Consequences Doctrine – “An accessory is liable for any criminal act which in the ordinary course of things was the natural or probable consequence of the crime that he advised, or commanded, although such consequence may not have been intended by him”
- You are liable under Accomplice Liability if one of the co-defendants commits an act that is a natural and probable consequence of the offense you all agreed to commit
o Rape is not a natural/foreseeable consequence of robbery
o However, battery/assault = natural/foreseeable consequence of murder

Innocent Agency Doctrine – One who affects a criminal act through an innocent agent is a P1

Innocent Instrumentality = Using something other than a human agent to kill will still be liable as a P1
Burglary – “the breaking and entering of a dwelling at night with the intent to commit a felony therein”
Larceny – “trespassory taking and carrying away of personal property of another with intent to permanently deprive” -> Larceny is wrong from the beginning
- Breaking the bulk doctrine (open the box, take/sell the goods) = larceny
- Continuing trespass doctrine (formulate the intent to take over time) = larceny
o Land/Trees (Common Law) – If you cut down a tree on another’s land and immediately take it away, no larceny; however, if you cut down tree, then leave property and come back the next day to take the tree = larceny
o Animals (Common Law) – Wild animals = not property; Dogs = base; Horse and cattle = property, so larceny
o Stolen Property – it is larceny to steal another’s property even if it is stolen property itself
o Intellectual/Intangible Property – not larceny
- Custody – Limited right; you have mere control over something
o Temporary/Extremely Limited authorization to use it
o Received it from employer for use in employment relation-> if you take it = larceny
o Bailee of goods in a container and he removes and sells them -> larceny
o Obtained by fraud -> larceny
• If you are in mere custody, and take it, then guilty of larceny
- Possession – You have sufficient control to use it in an unrestricted manner
o Actual – person is in physical control of the item
o Constructive – not in physical control but no one else has actual possession of it either because it was lost or mislaid or because another person has obtained mere “custody of it”
Larceny – MPC – does not require asporation (or taking away/moving object)

Larceny by trick = occurs when the D obtains possession of (but not title to) another’s property by fraud or trickery; fraud vitiates consent and takes the place of trespass
- If you make a false promise and receive property = custody = larceny

Embezzlement – “the property comes lawfully into possession of the taker and is fraudulently or unlawfully appropriated and converted by him”
- 1.) Lawful possession (you don’t have ownership, but are entrusted with the thing), then 2.) you convert it to your own use
o Ex. Find TV in it’s box, then sell it unopened = embezzlement
o Ex. Bank teller pockets customer’s deposit = embezzlement

False Pretense – “knowingly and designedly obtaining the property of another by means of untrue representations of fact with intent to defraud” (express or implied)
- “a thief who uses trickery to secure TITLE, and not simply possession, of property is guilty of false pretense” -> title passes = distinguishes trick vs. FP
o If you think you have a right to the property, then not false pretenses
o False Pretense = false representation of an existing fact (not opinion)
• Exceptions:
• Complainant knew it was false
• Even if Complainant believed the false pretense, he did not rely on it, but sought other advice
• Although some false pretense proven, the P parted with his money/property for other reasons, or in reliance on other representations not shown to be false
• You cannot make a misrepresentation under false pretenses about future conduct



To determine which kind of theft, ask:
1.) Did the Victim intend to give title? Or only possession?
a. If the former, then it can only be false pretenses.
b. If the latter, then it can only be either larceny or embezzlement,
i. To determine whether it is larceny or embezzlement, ask:
1. Did the Defendant come into the property lawfully (via consent)
a. If through consent, then it can only be embezzlement
b. If not, then it can only be larceny
i. However, if consent was via deceit, then it is larceny by trick

Robbery – “larceny from a person by violence or intimidation”
- Common law robbery is taking property from another by force or with the intent to do harm to the owner of that property. It does not mean that you have to have a weapon when committing the robbery. If the person felt threatened in any way of bodily harm, it would be a common law robbery.

Rape – “the carnal knowledge of a woman, not one’s wife, by a man, forcibly and against her will”

Common Law Resistance Requirements –
1.) Victim must resist to the utmost (fight it out as much as you can)
a. There must be enough resistance to show lack of consent
2.) Force is an essential element of the crime
i. C.L. – Lack of consent, but no force = no rape; saying no not enuff

Fraud in Factum – deception causes misunderstanding; D doesn’t know she’s sexing
- Ex. Doctor says he was using a medical instrument, but used his penis instead
o Fraud in Factum = GUILTY OF RAPE (there’s no consent)
Fraud in Inducement – obtaining rape by fraud; you induce someone; there is consent
- Ex. You claim you are a superstar, so the girl wants to fuck you = consent
o Fraud in Inducement = NOT guilty of Rape

Common Law – Only a man can rape; women cannot be guilty of rape
- Can’t be accused of raping wife at common law
- Must be vaginal sex, not anal (sodomy)

MPC – Does not require proof of resistance by the victim
- Includes genital, oral, anal sexual penetration of a male or female
-
Rape Shield Law – You cannot introduce evidence to make V look like a whore

Statutory Rape – “consensual or non-consensual sex with a minor”


Arson – the malicious burning of another’s dwelling

doctoroflaw91
Posts: 374
Joined: Sun Dec 15, 2013 10:38 am

Re: Criminal Law

Postby doctoroflaw91 » Mon Jan 27, 2014 8:51 pm

Mredav44 wrote:Criminal Law Definitions –
A. Common Law

Actus Reus + Mens Rea + Causation = Crime
Actus Reus + Mens Rea = Causation

Actus Reus – “A voluntary act that causes social harm” / Culpable act itself
- Omissions – exist only if there is a duty (5 duties)
- Intent – Desire/Conscious Object, or Know with Virtual Certainty

Mens Rea – “The guilty/more culpable mind”
- General intent – the act itself is sufficient to establish intent
- Specific Intent – designates a specific elemental mens rea for each offense
o L.A.C.E.B.R.A.S
- Strict Liability – does not require any mens rea

Causation – “divided into 2 parts, Actual Cause and Proximate Cause”
- Actual Cause – “but-for test”
o Accelerating a death = both actors are actual causes, but original actor may not always be held liable
o Concurrent Causes = two independent sources, each act alone was sufficient to cause the result that occurred (determine if Sub. Factor)
- Proximate Cause – “if there is an intervening cause, determine whether it’s foreseeable or unforeseeable (foreseeable = liable), (unforeseeable = not liable)”
o Direct cause = no event of causal significance intervenes
o Intervening cause = foreseeable = liable, unforeseeable = not liable
• Superseding Intervening = not liable
• Apparent Safety Doctrine
• Free, Deliberate, Informed Human Intervention
• Non-Superseding Intervening = liable
• Intended Consequences Doctrine

Homicide – “the unlawful killing of a human-being by another human-being with malice aforethought.”
• 1. Intent to Kill another human-being (express malice)
• 2. Intent to inflict grievous bodily injury on another (implied malice)
• 3. Extremely reckless disregard for the value of human life (Depraved Heart Murder = implied malice)
• 4. Felony-Murder (implied malice)
o Res Gestae Principle – Time, Distance, Causal requirements
o Must be inherently dangerous (abstract, or by facts of case)
o If the predicate felony hooks, then it is not sufficient for felony-murder, e.g., assault/battery/manslaughter = merge, robbery does not






Felony Murder cont’d –
1.) Agency Approach (Majority) – The defendant’s must do the killing in order to be responsible
2.) Proximate Cause Approach (FL) – If anyone dies, the defendant’s are responsible
3.) Limited Proximate Cause Approach – “Good guy, bad guy rule”;
a. If good guy dies = defendants liable
b. If bad guy dies = defendants not liable

Manslaughter – “the unlawful killing of a human-being by another human-being without malice aforethought”
• Voluntary = Intentional = Heat of Passion
o Heat of Passion = “Intentional killing done in a sudden heat of passion, as a result of adequate provocation, before there has been reasonable opportunity to cool off”
• Involuntary = Unintentional = Negligence
o Act was lawful in itself, but done in an unlawful manner
o Should have been aware, but was not, that there was an unjustifiable risk
• Misdemeanor Manslaughter = “Unintended killing that occurs during the commission or attempted commission of an unlawful act NOT amount to an inherently dangerous felony, or is a misdemeanor”
• Must still prove causation!

Self Defense –
1.) Necessity Component
2.) Proportionality Component
3.) Reasonable Belief Component

Force – a non-aggressor is justified n using force upon another if he reasonably believes such force is necessary to protect himself rom imminent use of unlawful force by the other person
• 5 requirements:
o Threat
o Unlawful and Immediate
o Imminent Peril
o Reasonable
o Proportional

Deadly Force – Deadly Force is ONLY justified in self-protection if the actor reasonably believes that its use is necessary to prevent imminent and unlawful use of deadly by the aggressor

Aggressor – One who provokes an assault/battery through use of words or actions
- If Deadly Aggressor = then can only remove status of aggressor by withdrawing from conflict in good faith and communicating this fact either expressly or impliedly to the victim
- If Non-Deadly Aggressor = then when victim of non-deadly assault responds with deadly force, the original aggressor IMMEDIATELY regains his right of self-defense

Resisting an Unlawful Arrest – the victim of excessive police force is entitled to use reasonable force to protect himself, including deadly force, if his life reasonably appears in jeopardy (self-defense doctrine applies)

Defense of Others –
- Modern Majority – an intervenor may use deadly or non-deadly force to the extent that such force reasonably appears to the intervenor to be justified in defense of the 3rd party
- Alter Ego Rule (FL) – You step into the shoes of the other party

Defense of Property – Never allowed to use deadly force to defend property
- Once a person is disposed of his property, his right to use force to defend his interest is extinguished
o Exception – A person who acts promptly after dispossession may use non-deadly force, as reasonably necessary, to recapture his property

Defense of Habitation –
1.) Early Common Law (FL) – a home-dweller may use deadly force upon another if he reasonably believes that such force is necessary to prevent an imminent and unlawful entry of his dwelling
2.) Middle Approach – A person may use deadly force if he reasonably believes that a.) the other person intends an unlawful and imminent entry of the dwelling, b.) the intruder intends to injure him or another, or to commit a felony therein, and c.) deadly force is necessary to repel the intrusion
a. Can’t shoot your drunk neighbor trying to come into your home by mistake
3.) Narrow Approach (Majority) – A person is justified in using deadly force upon another if he reasonably believes that a.) the other person intends an unlawful entry of the dwelling, b.) the intruder intends to commit a forcible felony (murder, robbery, burglary, rape, or arson) and c.) such force is necessary to prevent the intrusion
a. Can only use deadly force if person intends on committing forcible felony
i. Remember – Defense of Habitation is triggered when an intruder attempts to enter the dwelling unlawfully!

Spring Guns – You act at your own peril if you set up spring guns (you must, in fact, be able to kill V), e.g., if D kills V, a police officer, because D reasonably believes V is a felonious intruder, then he is justified n defending his habitation. However, if D’s spring gun kills the same V (police officer), D is not entitled to defense


Duress – 5 elements -> duress negates mens rea
1.) Another person threatens to kill/seriously injure the actor or 3rd party
2.) Actor reasonably believed the threat was genuine
3.) Threat was imminent
4.) No reasonable escape
5.) Actor was not at fault
Duress = human threats; at Common Law, Duress = NOT a defense to murder



Necessity – “Necessary to prevent an even greater harm from occurring”
- Choice of Evils defense
- Necessity Negates Actus reus
- Economic necessity = not a defense
- Necessity is NOT a defense to murder

Intoxication – Intoxication is a disturbance of mental or physical capacities resulting from the introduction of any substance into the body, either drugs, alcohol, or other foreign substances
- Voluntary intoxication – Knowingly ingesting intoxicating substances
o Not a defense to General Intent crimes
o Could be a defense to Specific Intent crimes
o FL = voluntary intoxication never a defense to any crime
- Involuntary intoxication – when an actor is not to blame for being intoxicated
o Goes to mens rea
o If you use medication for first time, then you have defense
• 3 circumstances:
• Person is coerced to ingest intoxicant
• Person ingests intoxicant by innocent mistake
• Person becomes unexpectedly intoxicated from prescription
o Person that is involuntary intoxicated = entitled to defense

Diminished Capacity – mental abnormality, less than insanity
- Mens rea variant -> works w/ specific intent
o If no mens rea, then no crime
- Partial restraint variant -> from murder to manslaughter

Infancy – Under 7 = never liable; Over 14 = full capacity

Insanity –
1.) M’Naghten (Majority) – a person is insane if at the time of her act, she was laboring under such defect of reason, arising from a disease of the mind that she 1.) did not know the nature and quality of her act, or, 2.) if she did know, she did know that what she was doing was wrong
2.) Irresistible Impulse – a person is insane if at the time of the offense: 1.) she acted from an irresistible impulse, 2.) she lost power to choose between right and wrong, 3.) the defendant’s will has been involuntarily destroyed and her actions are beyond her control
3.) MPC –a person is not responsible for her criminal conduct if, at the time of the offense, as a result of a mental disease or defect, she lacked substantial capacity to a.) appreciate her criminality (or wrongfulness), b.) she was unable to conform her conduct to the requirements of the law
4.) Durham/Product Test – a person should be excused if her unlawful act was the product of a mental disease or defect (but-for sense)
5.) Federal Test – a person is excused if she proves by clear and convincing evidence that at the time of the offense, as a result of severe mental disease or defect, she was unable to appreciate: a.) the nature and quality of her conduct, or b.) the wrongfulness of her conduct


Attempt – “a criminal attempt occurs when a person, with the intent to commit an offense, performs some act done towards carrying out the intent”
- 2 intents:
o Intent to Commit the Act
o Specific Intent of the Crime
- Must be in perpetration, not merely preparation
- Attempt merges with substantive offense (attempt = inchoate)

Complete (but imperfect attempt) -> shoot at V, but miss
Incomplete -> must distinguish between preparation and perpetration

Example – Attempted Manslaughter
• Attempted Voluntary Manslaughter = Intentional = Heat of Passion = YES!
• Attempted Involuntary Manslaughter = Unintentional = Negligence = NO!

Example – Attempted Felony Murder
- 48 states do NOT recognize this offense
- However, FL does recognize this offense

Tests of Attempt (Actus Reus)
1. Physical Proximity Doctrine – act must be proximate to the completed crime directly tending toward the completion or must amount to the commencement of consummation -> Must be able to be committed immediately
2. Dangerous Proximity Doctrine – greater the gravity and probability of offense and the nearer the act to the crime, the stronger the case -> Nearness, Greatness, Degree of Apprehension Felt
3. Indispensable Element Test – the actor must have obtained control over an indispensable element of the crime
4. *MPC* – Substantial step that corroborates the actor’s criminal purpose -> begins Perpetration
5. Probable Desistance Test – if in ordinary and natural course of events, w/o interruption from outside source, conduct will result in crime
6. Abnormal step – step that goes beyond the point where the normal citizen would desist
7. RIL/Unequivocality Test. – actor’s conduct manifests an intent to commit a crime -> Must be certain the crime will occur -> jury determine from conduct alone, absent words, manifested attempt
8. Last Act – occurs only when the person performed all acts believed necessary to commit offense -> works only with complete attempts

Attempt Defenses –
1.) Pure Legal Impossibility – is a defense (the act is not a crime)
a. Pure Legal Impossibility exists when the actor engages in conduct he believes is criminal, but the act is not prohibited by law”
2.) Hybrid Legal Impossibility – legally impossible -> determine the “legal status”
a. “Hybrid Legal Impossibility exists when the actor’s goal is illegal but commission of the offense is impossible due to a factual mistake regarding the legal status of some attendant circumstance that constitutes an element of the charged offense” (IS A DEFENSE AT COMMON LAW)
3.) Factual Impossibility – NOT a defense at CL, legally possible
a. “Factual Impossibility occurs when the D’s intended end constitutes a crime but she fails to consummate it because of a factual circumstance unknown to her or beyond her control”

Defense of Abandonment = Common Law = NOT a defense
(FL = abandonment is a defense; MPC = abandonment is a defense)
Assault – “An unlawful attempt coupled with a present ability to commit a violent injury on the person of another” (an attempt to commit a battery) (specific intent)
Battery – “Unlawful application of force to another willfully or in anger” (general intent)
Solicitation – “Occurs when a person invites, requests, asks, commands, hires, or encourages another to engage in conduct constituting a felony, or misdemeanor, relating to obstruction of justice or a breach of the peace.” (inchoate offense)
- The very moment you ask, the crime is complete
- If other person agrees, then crime merges with conspiracy
- Solicitation occurs even other feigns agreement
- Solicitation also merges with attempt; Solicitation merges with actual crime
- Use of Innocent Instrumentality = not solicitation; you are P1 (guilty of crime)
MAJORITY – Solicitation itself does not constitute an attempt to commit actual offense

Accomplice Liability
1.) P1 – commits the crime
a. “Perpetrator who actually commits the crime, either by his own hand or by an inanimate agency, or by an innocent human agent”
2.) P2 – (look-outs/ get away drivers) aids, counsels, commands, encourages the commission in presence
a. “Abettors who are guilty of the crime by reason of having aided, counseled, commanded, or encouraged the commission there of in his presence, either actual or constructive”
3.) ABF – does the same thing as P2, but NOT PRESENT
a. “Inciters who are guilty by reason of having aided, counseled, commanded or encouraged the commission thereof in his presence, without having been present either actually or constructively at the moment of perpetration”
4.) AAF – criminal protector
a. “Criminal protectors who, with knowledge of the other’s guilty, render assistance to a felon in the effort to hinder his detection, arrest, trial or punishment”
(In FL – P2’s and ABF’s = P1’s)

Mens Rea of Accomplice Liability – 1.) intent to aid, and 2.) intent to commit the crime

Natural and Probable Consequences Doctrine – “An accessory is liable for any criminal act which in the ordinary course of things was the natural or probable consequence of the crime that he advised, or commanded, although such consequence may not have been intended by him”
- You are liable under Accomplice Liability if one of the co-defendants commits an act that is a natural and probable consequence of the offense you all agreed to commit
o Rape is not a natural/foreseeable consequence of robbery
o However, battery/assault = natural/foreseeable consequence of murder

Innocent Agency Doctrine – One who affects a criminal act through an innocent agent is a P1

Innocent Instrumentality = Using something other than a human agent to kill will still be liable as a P1
Burglary – “the breaking and entering of a dwelling at night with the intent to commit a felony therein”
Larceny – “trespassory taking and carrying away of personal property of another with intent to permanently deprive” -> Larceny is wrong from the beginning
- Breaking the bulk doctrine (open the box, take/sell the goods) = larceny
- Continuing trespass doctrine (formulate the intent to take over time) = larceny
o Land/Trees (Common Law) – If you cut down a tree on another’s land and immediately take it away, no larceny; however, if you cut down tree, then leave property and come back the next day to take the tree = larceny
o Animals (Common Law) – Wild animals = not property; Dogs = base; Horse and cattle = property, so larceny
o Stolen Property – it is larceny to steal another’s property even if it is stolen property itself
o Intellectual/Intangible Property – not larceny
- Custody – Limited right; you have mere control over something
o Temporary/Extremely Limited authorization to use it
o Received it from employer for use in employment relation-> if you take it = larceny
o Bailee of goods in a container and he removes and sells them -> larceny
o Obtained by fraud -> larceny
• If you are in mere custody, and take it, then guilty of larceny
- Possession – You have sufficient control to use it in an unrestricted manner
o Actual – person is in physical control of the item
o Constructive – not in physical control but no one else has actual possession of it either because it was lost or mislaid or because another person has obtained mere “custody of it”
Larceny – MPC – does not require asporation (or taking away/moving object)

Larceny by trick = occurs when the D obtains possession of (but not title to) another’s property by fraud or trickery; fraud vitiates consent and takes the place of trespass
- If you make a false promise and receive property = custody = larceny

Embezzlement – “the property comes lawfully into possession of the taker and is fraudulently or unlawfully appropriated and converted by him”
- 1.) Lawful possession (you don’t have ownership, but are entrusted with the thing), then 2.) you convert it to your own use
o Ex. Find TV in it’s box, then sell it unopened = embezzlement
o Ex. Bank teller pockets customer’s deposit = embezzlement

False Pretense – “knowingly and designedly obtaining the property of another by means of untrue representations of fact with intent to defraud” (express or implied)
- “a thief who uses trickery to secure TITLE, and not simply possession, of property is guilty of false pretense” -> title passes = distinguishes trick vs. FP
o If you think you have a right to the property, then not false pretenses
o False Pretense = false representation of an existing fact (not opinion)
• Exceptions:
• Complainant knew it was false
• Even if Complainant believed the false pretense, he did not rely on it, but sought other advice
• Although some false pretense proven, the P parted with his money/property for other reasons, or in reliance on other representations not shown to be false
• You cannot make a misrepresentation under false pretenses about future conduct



To determine which kind of theft, ask:
1.) Did the Victim intend to give title? Or only possession?
a. If the former, then it can only be false pretenses.
b. If the latter, then it can only be either larceny or embezzlement,
i. To determine whether it is larceny or embezzlement, ask:
1. Did the Defendant come into the property lawfully (via consent)
a. If through consent, then it can only be embezzlement
b. If not, then it can only be larceny
i. However, if consent was via deceit, then it is larceny by trick

Robbery – “larceny from a person by violence or intimidation”
- Common law robbery is taking property from another by force or with the intent to do harm to the owner of that property. It does not mean that you have to have a weapon when committing the robbery. If the person felt threatened in any way of bodily harm, it would be a common law robbery.

Rape – “the carnal knowledge of a woman, not one’s wife, by a man, forcibly and against her will”

Common Law Resistance Requirements –
1.) Victim must resist to the utmost (fight it out as much as you can)
a. There must be enough resistance to show lack of consent
2.) Force is an essential element of the crime
i. C.L. – Lack of consent, but no force = no rape; saying no not enuff

Fraud in Factum – deception causes misunderstanding; D doesn’t know she’s sexing
- Ex. Doctor says he was using a medical instrument, but used his penis instead
o Fraud in Factum = GUILTY OF RAPE (there’s no consent)
Fraud in Inducement – obtaining rape by fraud; you induce someone; there is consent
- Ex. You claim you are a superstar, so the girl wants to fuck you = consent
o Fraud in Inducement = NOT guilty of Rape

Common Law – Only a man can rape; women cannot be guilty of rape
- Can’t be accused of raping wife at common law
- Must be vaginal sex, not anal (sodomy)

MPC – Does not require proof of resistance by the victim
- Includes genital, oral, anal sexual penetration of a male or female
-
Rape Shield Law – You cannot introduce evidence to make V look like a whore

Statutory Rape – “consensual or non-consensual sex with a minor”


Arson – the malicious burning of another’s dwelling


You, sir or madam, are a god[ess].

Mredav44
Posts: 52
Joined: Tue Jul 09, 2013 11:50 am

Re: Criminal Law

Postby Mredav44 » Mon Jan 27, 2014 11:17 pm

this might be a little better ... these outlines i made got me an a

Criminal Law Crime Definitions

1.) Homicide –
a. Murder – “an unlawful killing of a human-being by another human-being with malice aforethought”
i. 4 Types:
1. Intent to Kill (express)
2. Intent to Inflict Grievous Bodily Injury (implied malice)
3. Extremely Reckless Disregard for the Value of Human Life (implied)
4. Felony Murder (implied)
b. Manslaughter – “an unlawful killing of a human-being by another human-being without malice aforethought”
i. 2 Types:
1. Voluntary Manslaughter – Intentional
a. Sudden Heat of Passion – “An intentional killing done in a sudden heat of passion as a result of adequate provocation without reasonable opportunity to cool off”
2. Involuntary Manslaughter – Unintentional
a. “An act lawful in itself, but done in an unlawful manner without due caution, resulting in death.”
b. “Person should have been aware of the unjustifiable risk, but was not.”
c. “Gross deviation from the standard of a care that a reasonable person would have exercised under the same circumstances.”
i. Misdemeanor Manslaughter – “unintended killing that occurs during the commission or attempted commission of an unlawful act NOT amounting to a felony (it’s a misdemeanor), or not amounting to a felony that would trigger the Felony Murder”
2.) Attempt – “A criminal attempt occurs when a person, with the intent to commit an offense, performs some act done towards carrying out the intent”
a. Must be in Preparation stage + Substantial Step
3.) Assault – “An unlawful attempt coupled with a present ability to commit a violent injury on another”
4.) Battery – “Unlawful application of force to another willfully or in anger”
5.) Solicitation – “Occurs when a person invites, requests, asks, commands, hires, or encourages another to engage in conduct constituting a felony or misdemeanor relating to the obstruction of justice or a breach of peace”
6.) Burglary – “the breaking and entering of a dwelling at night with the intent to commit a felony therein”
7.) Larceny – “trespassory taking and carrying away of personal property of another with intent to permanently deprive”
8.) Embezzlement – “the property comes lawfully into possession of the taker and is fraudulently or unlawfully appropriated and converted by him”
9.) False Pretenses – “knowingly and designedly obtaining the Title of property of another by means of untrue representations of fact with intent to defraud”
10.) Robbery – Larceny from a person by violence or intimidation
11.) Rape – Carnal knowledge of a woman, not one’s wife, by a man forcibly and against her will
Other Definitions

1.) Actus Reus – “A voluntary act that causes social harm”
2.) Mens Rea – “The guilty, more culpable mind”
3.) Causation – Actual Cause + Proximate Cause

Self-Defense
1.) Force – A non-aggressor is justified in using force upon another if he reasonably believes such force is necessary to protect himself from imminent use of unlawful force by the other person
a. Necessity + Proportionality + Reasonable Belief components
2.) Deadly Force – Deadly force is ONLY justified in self-protection if the actor reasonably believes that its use is necessary to prevent imminent and unlawful use of deadly force by the aggressor
3.) Aggressor – “One who provokes an assault/battery through words or actions”
4.) Imperfect Self-Defense – “Person who kills another because he unreasonably believes that the factual circumstances justified the killing is guilty of manslaughter rather than murder”
5.) Defense of Others –
a. Modern Majority – “An intervenor may use deadly force or non-deadly force to the extent that such force reasonably appears to the intervenor to be justified in defense of the 3rd party”
b. Alter Ego – “Intervenor can only use force to defend a 3rd party if the 3rd party would in fact have been justified in using force, and force in the same degree in self defense”
6.) Defense of Property – “A person may use non-deadly force against a would be dispossessor if he reasonably believes that such force is necessary to prevent imminent, unlawful dispossession of property”
7.) Defense of Habitation –
a. Early Common Law – “A person may use deadly force upon another if he reasonably believes such force is necessary to prevent an imminent and unlawful entry of his dwelling”
b. Middle Approach – “A person may use deadly force upon another if he reasonably believes (1) the other person intends an imminent and unlawful entry into his dwelling, (2) the intruder intends to injure him or another occupant, or commit a felony therein, and (3) deadly force is necessary
c. Narrow Approach – “a person is justified in using deadly force if (1) the person intends an unlawful entry of the dwelling, and (2) the intruder intends to commit a forcible felony therein
i. Forcible Felony = Murder, Robbery, Burglary, Rape, Kidnapping











Affirmative Defenses
1.) Necessity – “Necessary to prevent an event greater harm from occurring”
a. “Choice of Evils defense” – “Natural Force”
2.) Duress – “Used for human threats”
3.) Intoxication – “Disturbance of mental or physical capacities resulting from the introduction of a substance to the body”
a. Voluntary
b. Involuntary
4.) Diminished Capacity – “Mental abnormality”
5.) Infancy – “Under 7 = not criminally liable; 7-14 = rebuttable presumption; >14=liable
6.) Insanity –
a. M’Naghten – “A person is insane if at the time of her act, she was laboring under such defect of reason, arising from a disease of the mind that 1.) she did not know the nature and quality of her act, or 2.) if she did know, she did not know what she was doing was wrong”
b. Irresistible Impulse – “A person is insane if at the time of the offense: 1.) she acted from an irresistible impulse, 2.) she lost the power to choose between right and wrong, and 3.) her will has been so completely destroyed that her actions are beyond her control”
c. MPC – “A person is not responsible if she lacks substantial capacity to 1.) appreciate the criminality or moral wrongfulness of her actions, OR 2.) conform her conduct to the requirements of the law”
d. Durham/Product Test – “A person is excused if her unlawful act was the product of a mental disease or defect”
e. Federal Test – “A person is excused if at the time of the offense, as a result of a severe mental disease, she was unable to appreciate: 1.) the nature and quality of her conduct, OR 2.) the wrongfulness of her conduct”

Attempt Tests
1.) Physical Proximity – Must be able to be committed immediately
2.) Dangerous Proximity – Nearness, Greatness, Apprehension felt
3.) Indispensable Element – the actor must have gained control over an indispensable element of the crime
4.) MPC – Substantial Step that corroborates the actor’s criminal purpose -> commences perpetration
5.) Probable Desistance – In the ordinary course of events, without outside intervention, the conduct will result in a crime
6.) Abnormal Step – Step that goes beyond the point where a normal citizen would desist
7.) RIL/Unequivocality – Actor’s conduct manifests an intent to commit a crime (act only, not words)
8.) Last Act – Occurs when actor performed all the acts believed necessary to commit offense (look for complete attempts)

Attempt Defenses
1.) Pure Legal Impossibility – “Actor engages in conduct he believes is criminal, but it is not”
2.) Hybrid Legal Impossibility – “Exists when the actor’s goal is illegal but the commission of the crime is impossible due to a factual mistake regarding the legal status”
3.) Factual Impossibility – “D’s intended end constitutes a crime, but she fails to commit it because of a factual circumstance unknown or beyond her control”
1.) Actus Reus – “Voluntary act that causes social harm” -> Culpable act itself’; must be voluntary
a. Omissions: Only if there is a duty (5 types)
• Status Relationship
• Contractual Obligation
• Creation of Risk
• Voluntary Assistance
• Statute

2.) Mens Rea – “The guilty, or more culpable mind” -> the particular mental state provided in the definition of the offense
a. General Intent – The Act itself is sufficient
b. Specific Intent – Must have the Act + Required Mental State (L.A.C.E.B.R.A.S)
c. Common Law Intent – 1.) Desire, or 2.) Knowledge that social harm is virtually certain to occur
d. MPC Intent – 1.) Purposely, 2.) Knowingly, 3.) Recklessly, 4.) Gross Negligence
e. Strict Liability – Do not require any mens rea
f. Mistake of Fact – Based on reasonable person standard; if reasonable person would make this mistake, then D can argue it
g. Mistake of Law – General Rule: Ignore of the law is no excuse
i. Exception – Reasonable Reliance -> Reasonably relies on an official statement of law (statute later declared invalid, or judicial opinion from highest court, or erroneous interpretation secured from public officer in charge of it)
1. NO DEFENSE (Exception to the exception):
a. Reliance on one’s own interpretation of law – NO
b. Advice of your own attorney – NO
h. Lambert Principle (Mistake of Law + General Intent Defense)
i. Punishment of an Omission
ii. Basis of Status (mere presence)
iii. Offense is malum prohibitum









3.) Causation – Actual Cause + Proximate Cause
a. Actual Cause – Cause in Fact -> “But-For Test”
i. Multiple Actual Causes:
1. Accelerating Death – both are actual causes
2. Aggravating Death – 2 non-mortal forces combine = both are actual causes
3. Concurrent Causes – 2 independent sources, both sufficient to cause death -> both actual causes
a. Apply Substantial Factor Test + Elaborated But-For Test
b. Proximate Cause – If there’s an intervening cause, proximate cause determines who is ultimately responsible
i. Direct Cause – There is no intervening cause, so D is the direct cause
ii. Intervening Cause – (1) Wrong doing by 3rd party, (2) V’s own suicidal act, or (3) Act of God
1. If foreseeable = D is guilty
2. If unforeseeable = D is not guilty
a. To Determine Foreseeability, Distinguish:
i. Responsive (Dependent) Intervening Cause = Foreseeable
1. Example: D shoot someone, they go to hospital, Doc botches surgery, this type of negligence is foreseeable, so D is guilty
ii. Coincidental (Independent) intervening Cause = Unforeseeable
1. Example: D shoot someone, they’re in ambulance, meteor lands on ambulance; this is unforeseeable, so D not guilty
iii. Superseding, Intervening Causes – Not Guilty
1. Apparent Safety Doctrine – When a person reaches a place of apparent safety, the original wrong-doer is not longer responsible because the causal link is broken
2. Free, Deliberate, Informed Human Intervention – A defendant is relieved of criminal responsibility if the intervening cause was from a Free, Deliberate, Informed Human agent
a. Example – decides to stay outside all night instead of going inside
iv. Non-Superseding Causes – Guilty
1. Intended Consequences Doctrine – If you intend to commit the social harm, but someone else did it for you in the same manner you intended, whether foreseeable or not, you are still liable
a. Example – D wants to kill V. D places gun on counter. D’s child picks up gun and shoots V. D = guilty
2. Omissions – Omissions can never supersede an action -> no matter how foreseeable, nothing can ever supersede something
a. Example – Father fails to stop stranger from beating his child. This will not absolve the attacker from homicide, but father may also be responsible (omission duty)

Homicide – Murder or Manslaughter
1.) Murder – the unlawful killing of a human being by another human being with malice aforethought”
a. Intent to kill another human-being – knowing, intentional, willful, deliberate, purposeful (express malice)
b. Intent to inflict grievous bodily harm – D intended to inflict grievous bodily harm, which killed V (implied malice)
c. An extremely reckless disregard for the value of human life (Depraved Heart Murder) – “I know but IDGAF!” (implied malice)
d. Felony Murder – applies regardless if felon kills intentionally, recklessly, negligently, accidentally, or unforeseeable -> strict liability (implied malice)
i. Limitations:
1. Inherently Dangerous Felony – determined either in abstract or by facts and circumstances -> larceny is not inherently dangerous felony
2. Independent Felony or Merger Limitation (majority) – if the predicate felony hooks, then it is not sufficient for felony murder
a. Assault, Battery, Robbery, Manslaughter = merge
ii. Res Gestae Requirement – Time, Distance, Causation components
iii. 3 Approaches –
1. Agency Approach (Majority) – If the person who directly causes the death is a non-felon, then felony murder does not apply
2. Proximate Cause (FL) – If felon or non-felon caused death, then felony murder applies (becomes a proximate cause issue)
3. Limited Proximate Cause (Good Guy, Bad Guy) – Looks at WHO is killed
a. If felon or co-felon killed = no felony murder
b. If innocent person killed = felony murder
2.) Manslaughter – “The unlawful killing of a human being by another human being without malice aforethought”
a. Voluntary Manslaughter (Intentional) – Sudden Heat of Passion – “intentional killing done in a sudden heat of passion as a result of adequate provocation without reasonable opportunity to cool off”
i. Adequate Provocation – must be adequate enough to provoke a reasonable man to act from passion rather than reason
ii. Cooling Off Period – If a person had some time to reflect and cool off after adequate provocation, there is not longer sudden heat of passion
iii. Causal Connection – there must be a causal connection between the Provocation, the Passion and the Fatal Act
1. Traditional Categories that Constitute Heat of Passion:
a. Extreme Assault/Battery
b. Mutual Combat
c. D’s illegal arrest
d. Injury or serious abuse of close relative (must witness)
e. Sudden discovery of spouse’s adultery (must witness)
b. Involuntary Manslaughter (Unintentional) – Person should have been aware of the unjustifiable risk, but was not. An act, lawful in itself, but done in an unlawful manner without due caution, resulting in death. Gross deviation from the standard of care that a reason person would exercise in the same situation. Negligent.
i. Misdemeanor Manslaughter – “The unintended killing that occurs during the commission or attempted commission of an unlawful act NOT amounting to a felony (it’s a misdemeanor), or not amounting to a felony that would trigger the felony rule (e.g., larceny)”
1. YOU MUST STILL PROVE CAUSATION
a. Example – Driving without a license, child jumps out, you try to avoid but hit and kill kid -> You will not be guilty for misdemeanor manslaughter because not having a license does not cause the death
3.) MPC – Extreme Emotional Disturbance – “a person who would be guilty of murder is guilty of manslaughter if she killed the V while suffering from Extreme Emotional or Mental Disturbance”
a. 2 Components:
i. Subjective – “extreme” mental or emotional disturbance -> D experienced intense feelings sufficient to lose control
ii. There must be reasonable explanation or excuse for the extreme emotional or mental disturbance
1. Half objective, half subjective – in that the reasonableness is determined from the viewpoint of a person in the actor’s position under the circumstances as he believes them to be
b. Person handicaps or other relevant external characteristics are applied; however, bad moral values are not applied (if you hate blacks or gays)
c. Tries to incorporate (1) Sudden Heat of Passion, and (2) Diminished Capacity

Self Defense (Common Law)
1.) Force – A non-aggressor is justified in using force upon another if he reasonably believes that such force is necessary to protect himself from imminent use of unlawful force by another
2.) Deadly Force – Deadly force is ONLY justified in self-protection if the actor reasonably believes that its use is necessary to prevent imminent and unlawful use of deadly force by the aggressor
i. Self Defense contains:
1. A Necessity Component
a. Must be imminent; cannot use deadly force if some non-deadly response will suffice
2. A Proportionality Component
a. A person is not justified in using force that is excessive in relation to the harm threatened
3. Reasonable Belief
a. A person may defend himself if he subjectively believes that the force/deadly force is required and a reasonable person would also believe it is appropriate under the circumstances
3.) Aggressor – The one who threatens to unlawfully commit a battery on another or who provokes a conflict by words or actions calculated to bring an assault
a. If someone pulls a knife in threatening manner = aggressor
4.) Removing Status of Aggressor –
a. If Deadly Aggressor = withdraw in good faith and communicate this fact, expressly or impliedly, to the other
b. If Non-Deadly Aggressor = when the victim of a non-deadly assault responds with deadly force, the original aggressor immediately regains his right of self defense
5.) Imperfect Self Defense – One who kills another because he unreasonably believes that the factual circumstances justified the killing is guilty of manslaughter rather than murder
6.) Resisting an Unlawful Arrest – The victim of excessive police force is entitled to use reasonably force to protect himself, including deadly force if his life reasonably appears to be in jeopardy

7.) Defense of Others –
a. Modern Majority – an intervenor may use deadly or non-deadly force to the extent that such force reasonably appears to the intervenor to be justified in defense of the 3rd party
b. Alter Ego – Intervenor can only use force to defend a 3rd party if the 3rd party would in fact have been justified in using force, and force in the same degree, in self-defense
8.) Defense of Property – Never allowed to use deadly force to defend property
a. A person may use non-deadly force against a would be dispossessor if he reasonably believes that such force is necessary to prevent imminent, unlawful dispossession of property
b. Must be immediate; however, a person who acts promptly after dispossession may use non-deadly force to recapture his property
i. If they are gone, you cannot go back later to repossess yourself
9.) Defense of Habitation – (see above)
10.) Spring Guns (Common Law) – Where the intrusion is in fact such that the person, were he present, would be justified in taking the life or inflicting grievous bodily harm, a spring gun may be used
a. Based on reality!
b. Ex. If D is present and reasonably believes that V, a police officer is a felonious intruder, D may kill V in defense of habitation. However, if D’s spring gun kills the same officer, D is not entitled to the defense
i. MPC – Never allowed to use spring guns

Self Defense (MPC)
1.) Force – “A person is justified n using force upon another if he believes that such force is immediately necessary to protect himself against the exercise of unlawful force by another on the present occasion”
a. Differs from the Common Law in 2 ways:
i. The belief need not be reasonable
ii. Authorizes self protective force sooner than may be allowed at C.L
2.) Deadly Force – Only justified to protect himself from (1) Death, (2) Serious Bodily harm, (3) Rape, or (4) Kidnapping
a. MPC says you must retreat before trying to use deadly force
i. If D unlawfully starts a non-lethal fight, he may still use deadly force
ii. If D did not start conflict and he has retreated but V continues to pursue, or D knows no place to retreat, or D is at home or work (and V is not at his place of work), then D may use deadly force
3.) Resisting an Unlawful Arrest – “a person may not use force to resist an arrest that he knows is being made by a police officer even if the arrest is unlawful (undercover cops do not apply)
a. However, this does not prohibit the use of force by an arrestee who believes the officer intends to use excessive force
4.) Defense of Others (3 Conditions)
a. D uses no more force to protect X than D would be entitled to use in self-protection as D believes it to be
b. As D believes circumstances to be, X would be justified in using that same force in self-defense
c. D believes his intervention is necessary*


5.) Defense of Property – A person may use non-deadly force upon another to prevent a person from carrying away personal property if:
a. The other person’s interference is unlawful
b. The interference affects his property, or someone else’s property for whom he acts
c. Non-deadly force is immediately necessary
6.) Force to Recapture Property – Must be immediate, but if not immediate, then he must believe that other person has no claim of right to possession of the property

Types of Defenses
1.) Justification Defense – Conduct is criminal, but under the circumstances it is socially acceptable and does not to deserve criminal liability
a. Example – Killing in Self-defense
2.) Excuse Defenses – Actor not morally culpable -> focuses on the actor -> “Yes I did it, but I should not be criminally accountable”
a. Example – Mentally Insane, or Duress
3.) Failure of Proof Defenses – D introduces evidence at trial that demonstrates the Prosecution has failed to prove an essential element of the crime
a. Mistake of Fact – D charged with homicide; D introduces evidence to prove he believed he was shooting at a tree, not a human
b. Unconsciousness/Automatism – D claims he was asleep or unconscious during the act
c. Alibi Defense – D introduces evidence he was not at the scene of the crime and therefore, was misidentified

Affirmative Defenses (Common Law)
1.) Duress (Excuse) – Duress is not a defense to intentional killing at Common Law; however, it is a defense at MPC
a. Duress – negates mens rea
b. Duress = human threats
c. Elements:
i. Another person threaten to kill/grievously injure the actor or a 3rd party (close family member)
ii. Actor reasonably believed the threat was genuine
iii. The threat was imminent
iv. No reasonable means of escape
v. Actor not at fault in exposing himself to the threat
2.) Necessity (Justification) – Necessary to prevent an even greater harm from occurring
a. Choice of Evils Defense
b. Necessity = Natural force (wild animals)
c. Economic Necessity = Not a defense
d. Necessity – negates actus reus
e. Necessity is not a defense to murder
f. FL = Necessity arises out of a response to an emergency situation
3.) Intoxication – Disturbance of mental or physical capacities resulting from the introduction of a substance to the body
a. Voluntary Intoxication – person willfully ingests the substance
i. Intoxication resulting from alcoholism or drug addition is considered voluntary
ii. Serves as a defense in very limited circumstances
1. Voluntary intoxication = defense to specific intent crimes
2. Voluntary intoxication = not a defense to general intent crimes
3. FL = Voluntary intoxication is NEVER a defense
b. Involuntary Intoxication – Person coerced into ingesting the substance, or innocent mistake, or unexpectedly intoxicated from prescribed medication
i. Goes to mens rea
ii. Defense to specific intent crimes, but not general intent crimes
4.) Diminished Capacity (Excuse) – FL does not use
a. Less than insanity; if insanity doesn’t work, try this
b. “Mental abnormality”
c. Mens Rea Variant -> works with specific intent crimes
i. No mens rea, no crime
d. Partial Restraint Variant -> From Murder to Manslaughter
5.) Infancy –
a. Under 7 = never liable
b. Between 7-14 = rebuttable presumption of criminal incapacity (decreases %)
c. Over 14 = full capacity
6.) Insanity – (see above)

Affirmative Defenses (MPC)
1.) Duress – is an affirmative defense if:
a. She was compelled to commit the offense by the use, or threatened use of unlawful force by the coercer upon her or another person
b. AND, a person of reasonable firmness in her situation would have been unable to resist the coercion
i. Battered Woman – A battered woman should find the MPC helpful:
1. There is no immanency requirement
2. A person who has suffered prior abuse may be able to excuse her conduct
3. Reasonable firmness = objective standard
ii. Brainwashing – brainwashing claim of duress is available at MPC
iii. “Situational Duress” – not available; Duress only applies to human threats
2.) Difference of Duress between Common Law and MPC –
a. MPC = No immanency requirement
b. MPC = Duress is a defense to murder
c. MPC = The imperiled person need not be himself or a close family member
3.) Necessity – 6 conditions at MPC
a. Actor faced with clear and imminent danger
b. D must expect, as a reasonable person, that his action will be effective in abating the danger he seeks to avoid
c. No legal way to avert the harm
d. Harm D will cause is less than the harm he seeks to avoid
e. Lawmakers must not have previously decided the choice of evils and decided that D’s conduct is worse
f. D must come to the situation with clean hands





Attempt
1.) Attempt – occurs when a person, with the intent to commit an offense, performs some act towards carrying out the intent
a. Must be in Perpetration stage
b. MPC “Substantial Step” Test is the Majority
c. Attempt is an inchoate offense
d. Attempt cannot exist by itself -> must be “attempt to murder, etc.”

Criminal Attempts are of 2 varieties:
1.) Complete (but imperfect)
2.) Incomplete

Attempt involves 2 Mens Rea (must have both):
1.) Intent to Commit Act
2.) Specific Intent of the Crime

Conduct Crimes – a person may be convicted of attempt to commit a conduct crime as long as he had the required specific intent (e.g., reckless endangerment)
Result Crimes – a person is not guilty of an attempt unless her actions in furtherance of the prohibited result are committed with a specific purpose of causing the unlawful result (e.g., murder)

Attempted Felony Murder – FL recognizes it; most states do not
Attempted Manslaughter –
1.) Attempted Voluntary Manslaughter (intentional) – Yes – Specific Intent to kill
2.) Attempted Involuntary Manslaughter (unintentional) – NO – No intent

*You cannot attempt assault at common law*

*If you actually commit the offense, the attempt merges with the substantive crime*

Tests of Attempt – Actus Reus – (see above)
Attempt Defenses – (see above)
- Distinguishing Hybrid Legal Impossibility vs. Factual Impossibility
o Factual – Legally Possible – Not a Defense
o Hybrid – Legally Impossible – Must determine “legal status” – Is a Defense

Random – D would not be guilty of an attempted statutory rape unless he knew there was a substantial risk that the girl was underage, even though statutory rape = strict liability


Assault
Assault (Common Law) – “an attempt to commit a battery”, or “unlawful attempt coupled with present ability to commit violent injured on another”
- Need a proximity factor
- Specific Intent crime

Battery
Battery – “unlawful application of force to another willfully or in anger”
- General Intent crime

Solicitation (Common Law)
1.) Solicitation – “occurs when a person invites, requests, asks, commands, hires or encourages another to engage in conduct constituting any felony or misdemeanor”
a. Inchoate offense -> also, there is basis for Accomplice Liability!
b. The very moment you ask, the crime is committed
c. If other person agrees, then it merges with conspiracy
d. Solicitation merges with attempt -> will not be guilty of solicitation, rather you will be guilty of attempt
e. Abandonment is not a defense to Solicitation at Common Law
f. Solicitation = Specific Intent crime
g. Solicitation of a solicitation is itself a Common Law Solicitation
i. Example – D asks X to procure another person to kill Z
h. Majority – Solicitation itself does not constitute attempt to commit the offense
i. Solicitation merges with the actual crime
j. Use of an Innocent Instrumentality – Not a solicitation; You are guilty as a P1
i. If you use an innocent instrumentality, you are guilty of the crime itself

Solicitation (MPC)
1.) Solicitation –
a. Difference between Common Law and MPC Solicitation:
i. An un-communicated Solicitation, or attempted Solicitation, is a Solicitation under MPC, but not Common Law
ii. Abandonment is a defense at MPC, but not Common Law
1. Abandonment = “renunciation of criminal purpose”
2. You must (a) completely and voluntarily renounce your criminal purpose; and (b) either persuade the other party not to commit the offense or otherwise prevent him from committing the crime (e.g., calling the police)























Accomplice Liability
1.) Accomplice Liability – Status, not a crime; e.g., “accessory to murder”
a. There are Accessories and Principals

P1 – Perpetrators – Commits the crime – “Commits the crime by his own hand, or by innocent agent or innocent instrumentality”
P2 – Abettors – (Look-out’s and Getaway Drivers) – “Guilty of the crime by reason of having aided, counseled, commanded, or encouraged the commission of the crime in his presence, either actual or constructive”
- Actual = Actually physically there
- Constructive = Close enough to render assistance if needed
ABF – Accessories Before the Fact – Inciters – “Aids, counsels, commands or encourages the commission of the crime without being present, either actually or constructively”
AAF – Accessory After the Fact – Criminal Protectors – “One who, with knowledge of the other’s guilty, renders assistance in an effort to hinder his detection arrest, trial, or punishment”

In Florida – P2’s and ABF’s = P1

Difference between ABF and P2 = “Presence”

Mens Rea of Accomplice Liability (must have both) –
1.) Intent to Aid
2.) Intent to Commit the Crime

Natural and Probable Consequences Doctrine – “An accessory is liable for any criminal act which in the ordinary course of events was the natural and probable consequences of the crime he advised or commanded, although such consequences may not have been intended by him”
- Rape is not a natural and probable consequence of Robbery
- However, Assault/Battery is a natural and probable consequence of Murder

Innocent Instrumentality – A person is a P1 if, with the mens rea required for the offense, he uses an innocent person, or a non-human agent, to commit the crime



Burglary
Burglary – the breaking and entering of a dwelling at night with the intent to commit a felony therein











Theft

1.) Larceny – “trespassory taking and carrying away of personal property of another with intent to permanently deprive”
i. Breaking the Bulk Doctrine – Open box and take/sell goods = larceny
ii. Continuing Trespass Doctrine – When you formulate the intent to keep the property over time = larceny
b. Custody – Limited Right; You have mere control over something
i. Temporary/Extremely limited authorization to use the thing
ii. Received the thing from an employer for use in employment relation
iii. Bailee of goods in a container and you open box and remove goods
iv. Obtain by fraud
1. If you are in mere custody of the thing, and you take/keep it, then you are guilty of Larceny!
c. Possession – You have sufficient control over the thing to use it in an unrestricted manner
i. Actual – Person is in physical control of the thing
ii. Constructive – Not in physical control, but no one else has actual possession of it either because it was lost, or mislaid, or because someone had mere custody of it
1. If you have possession of the thing, you cannot be guilty of Larceny!
d. Example of Larceny –
i. Land/Trees (C.L.) – If you cut down a tree on another’s land and immediately take it away = no larceny; however, if you cut down tree on other’s land, then leave and come back next day to take it = larceny
ii. Animals (C.L.) – Wild animals = not property; Dogs = base; Horse and Cattle = property, so larceny
iii. Stolen Property – It is larceny to steal another’s property, even if it is stolen property itself
iv. Intellectual/Intangible Property – Not larceny
e. Difference between MPC and Common Law:
i. Common Law – You must take/move the property, even in the slightest
ii. MPC – You do not need to take or move the object
f. Larceny by Trick – Occurs when the D obtains possession of (but not title to) another’s property by fraud or trick
i. Vitiates consent -> you really only have mere custody = larceny
ii. If you make a false promise and receive property = mere custody = larceny
2.) Embezzlement – “the property comes lawfully into the possession of the taker and is fraudulently or unlawfully appropriated and converted by him”
a. 2 Elements –
i. Lawful possession (you do not have ownership, but you are entrusted with the thing)
ii. Then, you convert it to your own use
b. Example –
i. Find TV in TV box, sell the box = embezzlement
ii. Bank teller pockets customer’s deposit = embezzlement
3.) False Pretenses – “knowingly and designedly obtaining the property of another by means of untrue representations of fact with intent to defraud”
a. A thief who uses trickery to secure TITLE, and not simply possession, of property is guilty of False Pretenses
i. Title passes in False Pretenses – Distinguishes False Pretenses from Larceny by Trick
b. If you think you have a right to the property, then not False Pretenses
c. False Pretense = False representation of an existing fact (not opinion, not about the future)
d. Exceptions to False Pretenses –
i. Other person knew it was false
ii. Even if other person believed the false pretense, he did not rely on it, but sought other advice
iii. Although False Pretenses is prove, P parted with his money/object for other reasons, or reliance on other representations that were not false
iv. You cannot make a misrepresentation under False Pretenses about future conduct

To Determine which kind of Theft, ask:
1.) Did the victim intend to give title or only possession?
a. If title, then only False Pretenses
b. If possession, then Larceny or Embezzlement
i. To determine whether Larceny or Embezzlement, ask:
1. Did the D come into the property lawfully (via consent)?
a. If consent = Embezzlement
b. If no consent = Larceny
i. However, if consent was via deceit, then Larceny by Trick


Robbery
Robbery – “Larceny from a person by violence or intimidation”
- “Taking property from another by force or with the intent to do harm to the owner of the property”
- No need to have a weapon
- If person felt threatened in any way of bodily harm, then it is Robbery















Rape
1.) Rape – “the carnal knowledge of a woman, not one’s wife, by a man, forcibly and against her will”
a. Common Law Resistance Requirements:
i. Victim must resist to the utmost (fight it out as much as possible)
1. There must be enough resistance to show lack of consent
ii. Force is an essential element of the crime
i. At common law, lack of consent, but no force = no rape (just saying no is not enough)
b. Fraud in Factum – deception causes misunderstanding; V doesn’t know she’s having sex
i. Example – Doctor says he is doing medical procedure with medical instrument, but really it’s sex with his penis
1. Fraud in Factum = No Consent = Guilty of Rape
c. Fraud in Inducement – obtaining sex by fraud; you induce someone; there is consent
i. Example – You claim you are a superstar, so the girl wants to fuck you
1. Fraud in Inducement = Consent = NOT guilty of Rape
d. Common Law
i. Only a man can rape; women cannot be guilty of rape
ii. Cannot be accused of raping your wife at C.L
iii. Must be vaginal sex, not anal (sodomy)
e. MPC
i. Does not require proof of resistance by the Victim (also, includes anal and oral sex)
f. Rape Shield Laws
i. You cannot introduce evidence to make Victim look like a whore
g. Statutory Rape
i. Consensual or non-consensual sex with a minor = strict liability

User avatar
jn7
Posts: 156
Joined: Tue Jun 25, 2013 3:33 pm

Re: Criminal Law

Postby jn7 » Mon Jan 27, 2014 11:19 pm

Stating the obvious here, but you should really just buy Dressler. It is so good. Not dogging on anybody's outline but that book is just phenomenal.

http://www.amazon.com/Understanding-Cri ... s=dressler

20140218
Posts: 3
Joined: Thu Feb 06, 2014 4:00 pm

Re: Criminal Law

Postby 20140218 » Thu Feb 06, 2014 4:10 pm

SPAM!

User avatar
Nova
Posts: 9116
Joined: Sun Apr 15, 2012 8:55 pm

Re: Criminal Law

Postby Nova » Thu Feb 06, 2014 4:46 pm

20140218 wrote:TTTT

whereskyle
Posts: 713
Joined: Tue Sep 25, 2012 5:37 am

Re: Criminal Law

Postby whereskyle » Fri Feb 07, 2014 11:39 am

Bookmarked. Many thanks for posting.

doctoroflaw91
Posts: 374
Joined: Sun Dec 15, 2013 10:38 am

Re: Criminal Law

Postby doctoroflaw91 » Fri Feb 07, 2014 4:49 pm

jn7 wrote:Stating the obvious here, but you should really just buy Dressler. It is so good. Not dogging on anybody's outline but that book is just phenomenal.

http://www.amazon.com/Understanding-Cri ... s=dressler


Thanks JN! Purchased the book just a few days ago :)

Mredav44
Posts: 52
Joined: Tue Jul 09, 2013 11:50 am

Re: Criminal Law

Postby Mredav44 » Fri Feb 07, 2014 7:28 pm

the 2 outlines I posted are based off the Understanding Crim Law Dressler book




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