Criminal Law Outline Fall 2011 Prof.

Fulcher

I. History of Punishment/Setting the Stage

Utilitarianism- Rehabilitation; fear as individual deterrent; incapacitation; emphasis on society as a whole. Retributive- Punish those who deserve it; make a morally blameworthy individual suffer; aftermath emphasis. Legal Moralist- Morally wrong behavior should be punished and forbidden by criminal law. 3 categories: 1 Assaulted> Public vengeance/ eye for an eye 2 Protective> Punish to secure moral balance 3 Victim vindication> reaffirm victims worth 7 Theories of Punishment under DU: 1 Protect Society 2 Punish D 3 D should live future as law abiding citizen 4 Deter others 5 Isolation 6 Restore the Victim 7 Uniformity in sentencing -3 strike rule from EWING: 25 years for stealing golf clubs, is the punishment valid?

II. Modern Role of Criminal Statutes

Principal of Legality: 1. Criminal statutes should be understandable to a reasonable person; 2. Crafted so dont delegate basic policy matters to police, judges, & juries for resolutions;

3. Judicial interpretation of ambiguous statutes should be biased IN FAVOR of the accused a.k.a THE LENITY DOCTRINE

Modern Penal Code (MPC) is not tested on final or on the Bar. Drafted by ALI in 1952, not all states adopted, but most model their laws from it.

III. Components of a Crime

ACTUS REUS: XN of crime a) ACTUS- voluntary act or omission when have a duty to VOLUNTARY ACT: all physical acts that encompass an offense i) Act-bodys actual movement, muscle contractions ii) Voluntary- movements governed by will, of own volition. *(MPC 2.01 excludes reflexes or convulsion, but defines as any bodily movement whether voluntary or not) Martin v. State- a person must voluntarily commit a crime. State v. Utter- 2nd degree murder case; D argued conditioned response after stabbed son to death while blacked out drunk; irresistible impulse not recognized b/c D voluntarily consumed alcohol; also no witnesses; if a response could even speculatively be triggered there must be a conscious function. Actus Omissions: Generally people do not have a duty to act. Ways in which duty can be imposed>>>>>By Law, by Status (caregiver or custodian), Voluntary assumption/preventing others from helping, Risk creation, by K. Beardsley- Mistress OD'd in basement; No legal duty; more of a moral issue; he did not give her the drugs and facts allege he attempted to take them from her. Barber- Dr. case; Ct. says Dr. has no duty to keep patient alive once continued treatment had become ineffective. b) that CAUSES -i.) actual cause ii.) proximate cause c) a SOCIAL HARM. (Reus) i) Result Crimes-Unwanted Outcomes. Death, arson etc. loss suffered by society not just victim, community loses sense of security. ii) Conduct Crimes- Law prohibits specific behaviors, DUI, solicitation to commit murder, no need for result. Example: Murder 1. actus is the shooting 2. reus is death First degree murder a person is guilty of fdm if they kill a human being with poison.. conduct is using poison, result is killing a human. Attendant Circumstances: these are when certain facts or conditions MUST be present when an actor commits social harm. Example: Burglary is the breaking and entering the dwelling of another at night with intent to commit a felony within. Conditions are: a. breaking and entering b. dwelling c. of another d. at night e. intent to commit a felony

Intent brings us to MENS REA MENS REA: A guilty mind establishes intent! Use common law on final, unless specified to use other 1) Intentional- a. desire or b. knowledge a social harm will occur 2) Knowingly- a. aware of fact b. correctly believes facts exist c. suspect the fact, but purposely avoids learning its true. 3) Recklessness- (subjective) conscious disregard that a social harm will be result of conduct 4) Negligence- (objective) gross deviation from the standard of care of a reasonable person; objective; you act and are aware negligent Transferred Intent DoctrineWhen D intends to cause harm to one person but accidentally causes harm to another, can only be used when ONE victim. GENERAL INTENT/ SPECIFIC INTENT general-reckless, negligent specific- intent, knowledge *examples on page 159 KNOWLEDGE: Under Nations, a person must have actual knowledge of existence of attendant circumstance; knowingly engage in criminal conduct. Also see Flores. STRICT LIABILITY: (If a statute is silent on mens rea use common law; must determine Congress intent) Garnett- legislative intent was SL, and no allowance for mistake of age. Legal Wrong Doctrine: example of selling believed pot but actually cocaine. MISTAKE & MENS REA: Mistake of Fact-to determine Mistake look @ determining factors: 1) What offense it is 2) Is it Specific< if yes, go to SI<morally or legally wrong? OR General Intent< is it reasonable or unreasonable? 3) Is it a Strict Liability Offense? (NO defense of mistake of fact) Navarro, D took wood beams with the good faith belief they were abandoned, good faith must be REASONABLE. Here, the Ds intent did not satisfy larceny b/c he did not Intend to deprave (attend. circ. of offense).

*person not guilty if mens rea is negated by mistake of fact. Mistake of Law- Marrero, no defense. *if morally wrong, Ct. may still impose liability, NOT IN SL.

IV. Causation
D. Actual Cause- (cause in fact) Need all elements. BUT-FOR the Ds voluntary act, would the situation have occurred when it did? The BUT FOR TEST. Also use the Substantial Factor Test. When Ds actions directly cause harm/ have a substantial effect on the harm. B Proximate Cause- (also called Legal Cause/ multiple causes) determines who or what events among those satisfy the but-for standard should be held accountable for the resulting harm; obstructive cause; usually arise when there is an INTERVENING CAUSE:When a but-for causal agent comes into play AFTER Ds voluntary act & BEFORE social harm occurs; a break in the causal link; such as: i. Acts of God ii. Independent 3rd party accelerates harm caused by D or causes it to occur in an unexpected manner. iii. an Act or Omission of the victim that assists in bringing about the outcome. Elaboration on But-For test: When & as it did. Ppl. v. Rideout- for a Ds conduct to be proximate cause, victims injury must be direct & natural result of Ds axns; look to see if there is an intervening cause which BREAKS A CAUSAL LINK. This is usually one of REASONABLE FORESEEABILITY. CONCURRENT & SUFFICIENT ACTS: 2 or more simultaneous but independent acts cause SH in themselves. Both liable if harm would still occur in either sep. scenario. Relieving Defendant of Axn. of Liability (6): 1) Diminimus Contribution to SH (small amount) 2) Foreseeability a) Was this a responsive intervening cause b) Coincidental, relieved unless foreseeable 3) Mens Rea of D Intended Consequence Doctrine: if an intentional wrongdoer gets what she wanted-she gets the result she wanted and in the manner she wanted it-she cannot escape criminal responsibility even if an unforeseeable event intervened. 4) Apparent Safety

Initial cause of danger is over and a new chain has begun for which D cannot be responsible. 5) Human Intervention Look @ voluntary act. Did Ds conduct force Victim to d something or did Victim do something not b/c threatened but from OWN accord. 6) Omission Doing nothing... nothing does not supersede something. Failure to act can, in some cases, make someone liable when they have a duty to act.

V. Homicide
CL defines criminal homicide as Killing of a human being by another human being. Human being must be human when dies (not a fetus). End of human life- end of blood circulation (now when brain stops functioning). SOL year and a day. MURDER: (Under CL, if a death occurs during a felony) Killing of another human being with malice, aforethought (pre-meditation). No time limit, only brief moment of thought would suffice. MALICE: when a person possesses ANY 1 of the following: 1. Intent to Kill 2. Intent to inflict grievous bodily harm, but death results 3. Extreme reckless disregard for value of human life (DEPRAVED HEART) callous disregard for human life; D no intent, malice is implied b/c wanton & willful disregard of likelihood behavior will cause death or g.b.h) 4. Intent to commit felony which results in death. MANSLAUGHTER: Under Common Law 1 VOLUNTARY- Intentional killing committed in the sudden heat of passion as the result of adequate provocation. Must meet the following: i. Heat of Passion- violent, intense emotion ii. Adequate provocation (result is HOP); i.e. aggravated battery, mutual combat, involving relative, observe illegal arrest, Spousal adultery. iii. No Reasonable cooling off period iv. A causal link b/w provocation, passion and homicide. *words are NOT enough

2 INVOLUNTARY- A killing resulting from criminal negligence; a gross deviation from the standard of care that reasonable people would exercise in the same situation. ing 3 MISDEMEANOR - (unlawful act) accidental homicide that occurs durthe commission of a misdemeanor

*MPC defines homicide as purposely, knowingly, recklessly or negligently cause death of another. Mens rea. Recognizes murder, manslaughter, negligent homicide, and aiding or causing suicide ( purposely aids in or solicits another to commit suicide and conduct causes suicide). *MPC manslaughter is broad compared to CL. Defined as person recklessly kills another, or a homicide which would otherwise be murder under influence of extreme mental or emotional disturbance for which theres reasonable excuse. *MPC doesnt need specific list of provocations; here words ARE enough; no required cooling off period. Intentional Killing: The deliberation-premeditation formula Statutory approach: **Georgia is not a degree state, does not recognize 1st, 2nd degree murder** 1st degree murder: a willful, deliberate & pre-meditated killing of a felony murder during commission of certain enumerated felonies (arson, robbery, rape, burglary). To prove premeditation there must be a significant duration of time before killing. Guthrire., Forrest 7 elements for pre-meditated & deliberate (relate to mental process) the court looks to: 1 deceased want or provocation 2 conduct & statements of D before/after 3 threats & declarations of D before and during course of occurrence 4 ill-will or previous difficulties b/w parties 5 dealing of lethal blows after victim is felled 6 evidence the killing was brutal 7 # of wounds 2nd degree murder: intent to inflict grievous bodily injury on another; or acting with a Depraved Heart; an abandoned & malignant heart; consciously takes a substantial & unjustifiable foreseeable risk of causing human harm; OR felony murder during non enumerated felonies. No evidence of pre-meditated and deliberate. Midgett., Girouard (man stabbed wife 19x, could not use manslaughter as defense b/c not adequately provoked) Criminal Negligence:

Gross deviation from standard of care. State v. Hernandez Unjustified Risk-Taking: State v. Williams- conduct is tested from a reasonable person standard (objective). if conduct, regardless of ignorance & good faith fails to measure up to the conduct of a RPP they are guilty of ordinary negligence due to failure to use ordinary care. *criminal & civil negligence distinguished by higher level of culpability in crim law.

VI. Rape
CL Forced Rape: Sexual Intercourse between a male and female (not wife) by means of 1. Force, or threat of force against their will, 2. w/o consent. General fear is not enough under Alston. Threats must be made during the time of sex. Rusk looked at apprehension of fear and reasonableness. Berkowitz (dorm room case) looked at the totality of the circumstances. Just saying no was not enough when coupled with force requirement. RESISTANCE REQUIREMENT. Verbal resistance only sufficient when paired with threat of force. Here, there was no threat by D. Victim walked into room freely. Forcible compulsion- resistance can also be psychological, moral or intellectual, positions of authority, domination or custodial. Withdrawn Consent:immaterial when consent is w/d if it is communicated and D continues to persist. Initial consent CAN be w/d at any time. Mens Rea Requirement: Ppl. v. Williams, mistake of facts Good faith beliefs. when there is substantial evidence of equivocal conduct, give Mayberry instruction- this case erased defense of mistake of fact in rape cases; there was no substantial evidence warranting an instruction on reasonable and good faith but mistaken belief of consent to sexual intercourse. Rape Shield Laws: *Under the 6th amendment, D has right of confrontation and right to prevent evidence. * RS Laws prevent evidence of Victims prior sexual behavior unless with D. Evidence-probative must outweigh vs. prejudicial effect. 3rd party excluded unless done TOWARD accused. (Fulcher gave the lap dance example)

VII. Theft
Larceny: CL: 1) trespassery taking & carrying away 2) of personal property 3) belonging to another 4) with intent to permanently deprave Ppl. v. Brown, cannot only intend to borrow or take temporarily. This is hard to establish so we look to: Continuing Trespass- initial trespass continues as long as the wrongdoer remains in possession of property. Possession is: unrestricted, sufficient control either ACTUAL- in physical control or CONSTRUCTIVE-control by title (*use in a reasonable manner) Lund gave us the rule of goods & chattels vs. time & services. Time/Service cannot fall under a statute if requirement to carry away b/c you cannot carry away services...etc. Bailee: holds and receives property w/ instructions to deliver it to its owner; does not have legal possession over property; only temporary custody of the bale. Mafnas case- when D opened the bale it was trespassery taking. Larceny by trick: borrowed book case Grand Larceny is subject to capitol punishment. Petty Larceny is also a felony, but not a capitol offense. Embezzlement: 1 taking possession 2 of property 3 from another 4 LAWfully 5 and convert to own use There is an element of entrustment here that creates legal possession; can be bound by employment-bailor/bailee. False Pretenses: 1 Knowingly & designly 2 use deceit to obtain possession of title 3 carries away 4 personal property of another 5 with intent to deprave *difference b/w lost and mislaid

Lost property original owner keeps rights when there is a clue of ownership, such as name or number. Must be obvious. When property is found when is it subject to larceny? The finder must have a good faith belief it is actually lost. Due diligence is suggested, but but not required. There must be a 1. wrongful intent to steal and 2. intent must occur at tim of taking. The Ct. will also look to see if there is a reasonable belief someone could find the owner. Also look at actions after found. In Brooks, the finder hid the property.

VIII. Attempt
Have mens rea, but dont go through with entire crime. These are conduct crimes! CL: When a person with intent to commit an offense forms any act that consists of a SUBSTANTIAL STEP TOWARD the offense. a.k.a. Any conduct past preparation stage & toward target offense/ beyond mere preparation. 6 steps to help determine: 1> Conceives idea 2> Evaluate the idea 3> Decide to go through with it >>>all these are mens rea (NOW, Going from prep. to substantial step 4) 4> Prepares to do the crime 5> Starts commission of offense 6> Action completed/ crime committed Complete but Imperfect: performs all acts but fails to complete goal plete attempt) Incomplete Attempt: does some acts toward crime but quits or is (com-

prevented

Attempt cannot be charged simultaneously with crime once its complete. Example: Murder and Attempted murder. Once murder is complete there is no attempt left. MENS REA requirement in attempt: 1>> Intentionally commit act that constitutes actus reus of intent 2>> Performs with specific intention of committing target offense. (specific intent crime) Ppl v. Gentry illustrated intent to kill (gasoline case); Bruce v. State (man shot during robbery) no specific intent req....... when felony murder because no mens rea req...... in felony murder. no such thing as attempted felony murder. US v. Mandujano (under cover heroine case) laid out the following way to constitute an attempt: 1. acting with culpability otherwise required for commission of a crime

2. must have engaged in condition which constitutes a substantial step toward the commission of a crime. Here, the Ct says preparation IS NOT enough.

IX. Accomplice Liability

*accomplice derives from main party, may be liable for entire offense. CL Created: 1 Principals a) 1st degree- commits crime by own hand or uses innocent instrumentality b) 2nd degree- someone who intentionally assists with 1st degree in committed offense and ACTUALLY or CONSTRUCTIVELY present. 2 Accessories a) Before the Fact-intentionally assists with commission of offense but not present. b) After the Fact-Knowingly assists felon to avoid detention, arrest, trial or punishment. *georgia does not acknowledge accomplice liability/ accessory; but only has a party to and all parties liable for same offense.

X. Criminal Defense
5 categories: 1. failure of proof-all elements not shown 2. offense modification- example of ransom 3. justifications-legally recognized harm, all elements satisfied but justified in doing so (field burning) 4. excuses-not responsible, mental capacity/duress ** will be on exam Duress: Actor must have clean hands 1 another person threatens to kill or injur (deadly) 2 reasonable belief threat is genuine 3 threat must be imminent 4 there is no reasonable opportunity to escape see Anderson pg. 597 duress as defense to non capitol murder, under CL cannot be used in murder 5. non exculpatory public policy defenses- SOL SELF DEFENSE: Necessity- ordinary use of force must be necessary; if you are able to protect yourself without force it is not justified. Proportionality- only cause harm that is reasonable in relation to harm threatened

Reasonable Belief- use of force is necessary and proportional to supposed threat THREAT of FORCE: the defender must have believed he is in imminent/immediate danger/ peril of death or serious bodily harm, and that his response was necessary to save himself therefrom. Self defense may not be claimed by one who deliberately places himself in a position where he has reason to believe his presence would provoke trouble. Goetz showed the imminent danger test cannot be subjective and based on the Ds state of mind... it would allow any person, no matter how delusional, to kill at will if he believes his actions are justified. Therefore, reasonableness must be determined based upon the circumstances facing a defendant. deadly force- force likely to or intended to cause death or serious bodily injury; one may use deadly force if he REASONABLY BELIEVES it is necessary. If found unreasonable, can lose SD claim and mitigated to manslaughter. aggressor- person who commits unlawful act reasonably calculated to provide an a fray for bodying injurious or fatal consequences. non deadly aggressor- may regain self defense status is excessive force used in response; but must retreat during aggression to retain self defense if person continues to use force. deadly aggressor- may regain right of self defense status if a abandon deadly design and b communicate it. Retreat/ Castle Doctrine: Battered Woman Syndrome: 3 types: Confrontational, Non-confrontational, hired 3rd party Defense of Others: NOW **you can defend anyone if had right to reasonably defend; no special relationship needed. Necessity: Choice between evils *must be from result of natural force or condition* The actor weighs a relatively minor offense verses preventing suffering of them self or others from an even greater offense. Must be done to prevent a significant evil. Court looked to see if there is a reasonable/adequate/lawful alternative. The harm caused cannot be disproportionate to the harm avoided. Imminency later added to requirements which is clear and imminent harm at the time of the offense and actor must BELIEVE their action will abate the

harm and an emergency exists. Next, the actors blameworthiness is examined, he cannot have contributed to the harm to be avoided (clean hands). Last, the defense can only be raised to protect person or property NOT finances/economic reasons. *cannot raise necessity in homicide cases. <the 3 limits again: created by natural element, not applied in homicide, limited to persons and property> Intoxication: a disturbance of physical or mental capacity as result of any introduction of any substance into the body. 1 Voluntary: person knowingly ingests foreign substance he knows or should know would cause him to be intoxicated (unless prescribed) 2 Involuntary: person PRESCRIBED *no defense if take more than prescribed (abuse), COERCED, INNOCENT MISTAKE , PATHOLOGICAL INTOXICATION triggered by intoxicant psychological reaction with predisposed mental or physical condition they didnt know about or have reason to expect the intoxication would trigger such a reaction. Steps an attorney must go through1 How did client become intoxicated? must det. if it is vol. or invol. 2 In what way does D claim his intox affects his culpability? intox. negated mens rea as defense it was so extreme the person was unconscious and conduct was involuntary. get rid of actus reus 3 person had requesite mens rea but intoxication rendered them temporarily insane ? *Under CL rarely used as excuse, but when someone did the ct must determine what typ of crime it was: general intent crime- voluntary intox. defense NOT applicable b/c no specific intent needed specific intent crime-voluntary intox. defense *vol intox is defense if as a result he was incapable of forming or did not in fact form the specific intent req. in order to commit the crime CL does not allow intox. insanity as defense INVOLUNTARY intoxicated is entitled to acquittal. *will be on exam Insanity: when someone lacks capacity to consult with attorney w/ a reasonable degree of ratnl. understanding OR lacks rational as well as factual understanding of proceedings against them. (any one can raise it) *gov. trial related interests

Guilty but Mentally ill: go to mental health facility *experiment *cognitive mind analysis, knowledge, nature of the act *irresistible impulse test