law school outline: criminal law

Criminal Law

  1. Notes on Class & Professor

  1. Text: Criminal Law Cases and Materials, 3rd Edition, John Kaplan
  2. Spends a disproportionate amount of time on homicide (OJ?).

  1. Criminal offense

  1. Jurisdiction: Location of conduct or result. If omission, where act should have been performed.  Actus reus

  1. Past
  2. Voluntary: Conscious + Volitional (unless D caused or had prior warning).  Bad Conduct

  1. Possession: Act if possessor knowingly procured or received the thing or was aware of his control thereof for a sufficient period to have been able to terminate his possession.
  2. Omissions: Knowledge + Duty created by: Statute, Status, Contractual, Voluntary, Creator.
Specified In advance By statuteMens rea

  1. Punish intended harms
  2. Presumed if natural and ordinary result of conduct.
  3. Showing intent is presumption that acts were voluntary and natural, probable consequences of act.
  4. CL Levels

  1. Specific intent

  1. Independent evidence needed of intent
  2. Inchoate offenses
  3. 1st degree murder
  4. Assault as attempted battery
  5. Felonies against property

  1. Malice

  1. 2nd degree murder
  2. Arson

  1. General intent

  1. Majority of crimes, including assault as a threat
  2. Intent is inferred from conduct

  1. Strict liability

  1. Intent presumed
  2. Defenses that negate intent do not apply
ML Levels

  1. Purposely: Conscious desire to engage in certain conduct or cause certain result. (similar to specific intent)  Knowingly: Aware that it is overwhelmingly likely that conduct will cause result. (similar to specific intent)  Recklessly: Conscious disregard of a substantial and unjustifiable risk; gross deviation from reasonable standard of care.  Negligently: Should be aware of substantial and unjustifiable risk.
Transferred intent

  1. Requirement that D intend that act occurs is transferable when:

  1. Intent & fact differ only in person or property affected
  2. Seriousness of fact > intent
  3. Act not too remote or accidental from intent

  1. Creates two crimes: Original & attempt

  1. Addiction is involuntary, therefore not punishable

  1. Civil commitment of addict or sexual predator
  2. But can punish acts related to status (drunk in public; usually health & safety)

  1. Status can enhance penalty

  1. Rape with AIDS
  2. Pedophile?

  1. Factual Cause

  1. But-For Test

  1. Simultaneous unexcludable events = both liable.
  2. No voluntary 3rd party or natural intervention
orSubstantial Factor TestandProximate Cause: Forseeability

  1. Natural and probable consequence of act
  2. 3rd party, intervening event or long time breaks chain of causation, unless intervention was foreseeable
  3. Providing the means � no liability unless covered by separate statute

  1. Assisting suicide covered by suicide statutes (felony), going beyond assisting is murder.
  2. Recklessly or negligently providing means for suicide is involuntary manslaughter.

  1. First degree murder � Purposely & Knowingly

  1. Specific Intent: Malice aforethought or in ignorance of a grave risk; Premeditation and deliberation (reasonable time requirement)
  2. Statutorily (torture, poison, lying in wait)
  3. Felony murder: Felony implies malice

  1. Foreseeable death of a 3rd party (non-felon), no foreseeable req. for eggshell victims
  2. During an enumerated crime

  1. Crime not a part of the killing itself (merger � assault with deadly weapon)
  2. During perpetration or immediate flight (not after reaching place of safety)

  1. Defense to the felony is a defense to the murder
Second degree murder � Purposely & Knowingly

  1. Intent to kill without premeditation
  2. Intent to commit great bodily harm
  3. Depraved heart: Intentional act with a substantial likelihood of causing death

  1. Malicious recklessness
  2. Grossly unreasonable care
  3. Indifference to human life or awareness that conduct is contrary to laws of society
  4. Reckless disregard for a known and appreciable danger

  1. Felony murder for non-enumerated but inherently dangerous felonies not covered under 1st degree felony murder rule.
Voluntary Manslaughter � Passion/provoke

  1. Knowingly and purposely, but legal provocation without cooling off

  1. Actual or reasonable belief of provocation adequate to cause sudden violent impulse.
  2. Objective and subjective standard applies to both provocation and cool-off.

  1. Imperfect self defense (mistake or reverse self defense)
Involuntary Manslaughter � Criminal Negligence

  1. Intentional disregard of a duty to use reasonable care that results in unintended death.

  1. If duty would have been known to a reasonable person
  2. Objective and subjective standard applies to knowing duty.

  1. Misdemeanor manslaughter, or non-enumerated, non-inherently dangerous felony
  2. Vehicular manslaughter

  1. Gross negligence while operating a vehicle resulting in death

  1. Extreme recklessness bumps up to 2nd degree murder

  1. Death via committing a misdemeanor (dead person didn�t have seatbelt on)
Statutory distinctions

  1. Model Penal Code

  1. Murder: Purposely or knowingly
Manslaughter: Reckless Negligent homicideFetus is able to be murdered, not manslaughtered  Death measured by heartbeat, respiration_____________________________________________________________________________________________Justification and Excuse

  1. Self defense

  1. Non-Deadly

  1. Can use such force as reasonably appears necessary to defend self against apparent threat of unlawful and immediate violence from another

  1. Honest & reasonable belief in necessity = justified
  2. Reasonable belief of imminent and unlawful harm
  3. Reasonable force: No more than appeared necessary under the circumstances
Deadly force

  1. Requires perceived threat of death or serious bodily injury, protecting property not enough.
  2. Duty to retreat or surrender unless at home (unless attacker lives there also), work, or impossible to do safely (honest and reasonable belief)
  3. Battered women�s defense reduces need for "imminence" if reasonable.
Force cannot be used by aggressor unless victim is threatening unlawful harm. If attacker is unarmed and victim responds with a gun, attacker can defend self (including with deadly force). Force can be used to resist unlawful arrest, unless made by someone known to be a police officer Standard used is subjective

  1. Honest but unreasonable belief = imperfect = IVM (negligent or reckless)
  2. Reasonable but incorrect belief = excused
Defense of others: Same as self defense

  1. Objective/Majority law: Actor stands in shoes of person assisted
  2. Subjective: As situation reasonably appeared to actor
  3. Force must be reasonable.
Defense of property

  1. Deadly force (including spring guns) not allowed.
  2. Non-deadly force ok for real and personal property.
  3. Must make a request to desist prior to use of force
Law enforcement arrest

  1. Non-deadly force reasonably necessary to make an arrest or prevent a felony or misdemeanor.  Deadly force

  1. Limited to dangerous felonies where officer reasonably believes suspect is guilty of a felony and force used was necessary for arrest. Also for crime prevention.
  2. Also available for self-defense or defense of others.
  3. Authorized to prevent escape from jail.
Private person can use deadly force only if person killed did in fact commit a felony. No mistakes allowed. Reasonable belief standard used for non-deadly force.Necessity & Duress

  1. Defense to all crimes, but very limited for homicide

  1. Not ok to cannibalize someone to save yourself
  2. Economic necessity alone is not enough
  3. Defense available only if pressure created by natural force, not a person exerting pressure on D

  1. Choice of evils

  1. Present threat of death or serious bodily injury
  2. Not caused by actor
  3. No reasonable legal alternative
  4. Causal relationship between criminal action and avoidance of threatened harm
  5. Harm to be avoided must be greater than harm done
Mental Illness

  1. Competency: Trial delayed until competent  Dimished Capacity: Lacked capacity to form specific intent mens rea required for crime. California abolished.  Insanity: D was so impaired by mental illness or retardation at time of crime as to be insane by law.

  1. Burden: Affirmative defense. Traditionally D has to show some evidence, p has burden to prove not insane beyond a reasonable doubt.

  1. Modern trend to have D show by clear and convincing evidence or preponderance of evidence insanity during second arm of bifurcated trial (first arm determines guilt).

  1. Mental illness or disease (psychosis)
  2. Retardation
  3. Repeated criminal or antisocial conduct is not enough.
  4. Gazner syndrome: Faking mental illness.
Tests: Mental vs. ability to control conduct.

  1. M�Naughten / CA: Did not know nature and quality of act; or did not know act was wrong (moral). Loss of control irrelevant.  Irresistible impulse test / ALI / MPC: Lack of substantial capacity to conform conduct to requirements of law.  Durham: Crime was a product of an impairment that D had at time of crime.  Post-Hinkley Federal: Eliminated inability to control actions as a defense, now only defense is inability to understand/know act was wrong.

  1. NGRI automatically sends D to hospital for 40 days, continued only if D fails to show he is no longer dangerous.
  2. No right to be released when standard prison term would have ended. Therefore, insane D may end up in hospital longer than he would be in jail. So defense isn�t used much any more.

  1. Voluntary: Includes addicts. Defense only to specific intent.  Involuntary: Complete defense to everything incl. strict liability, treated as a form of insanity.
Impossibility / Mistake

  1. �of fact:

  1. Never negates strict liability
  2. Reasonable mistake negates malice & general intent

  1. Unless act would still be a crime even if facts and law were as D thought.

  1. Any mistake (reasonable or not) negates specific intent
�of law is not valid defense, unless reasonable reliance on an official statement of law, or if mistake negates intent requirement, or statute provides for defense.

  1. Public liable to know common law, even if not codified
  2. Court expansion of codified law limited, only prospective
  3. Can be prosecuted for doing something that is legal, if D thinks it is illegal, if there is a danger to society.

  1. Under 7: No criminal liability
  2. Under 14: Rebuttable presumption of no criminal liability

  1. D �s predisposition negates
  2. Test is "no crime without government�s involvement"


  • Mens rea

  • Actus reus

  • Defense

  • Punishment

  • Merger

  • Attempt

  • Specific intent to commit crime

  • Substantial step in direction of commission of crime

  • Legal impossibility, complete withdrawal

  • Same or slightly less as completed crime

  • With completed crime.

  • Solicitation

  • Intent to engage a person in criminal conduct

  • Asking. Attempted if no actual communication.

  • Complete withdrawal; Free speech. Must try to prevent crime.

  • Less than crime.

  • With attempt, completed crime and conspiracy

  • Conspiracy

  • Knowledge & intent to conspire and pursue unlawful objective
    Implied by knowledge or surrounding circumstances including no legitimate use, stake in venture, etc.

  • Any act in furtherance of conspiracy.
    Implied or express agreement between two or more people. Meeting of minds not required.

  • Withdrawal is incomplete defense � still liable for previous acts. Factual impossibility no defense. Provocation can reduce.

  • Liable for all foreseeable crimes by any actor known or reasonably foreseeable to D (chain/hub/rim).

  • No � separate crime. Cannot be co-charged with attempt.

  • Complicity (principle / accessory)

  • Same as crime. Community of purpose, partnership in unlawful undertaking.

  • Actively aiding, abetting and counseling a crime to take place. Perpetrator must actually commit crime.

  • Complete withdrawal; accomplice protected as a victim. Must try to prevent.

  • Full crime & all foreseeable crimes, unless accessory after the fact.


    1. Vicarious liability: 3 ways to get D

    1. Felony murder
    2. Accessory
    3. Conspiracy
    Offenses against consent

    1. Theft


    3. Means of Taking

    4. Property Interest Violated

    5. Mens Rea

    6. Larceny

    7. Trespass (applies to mislaid, not lost property)

    8. Possession

    9. Intent to steal (permanently deprive). Good faith belief in right to ownership is a defense.

    10. Larceny by Trick

    11. False representation of existing (past/present, not future) fact or promise to induce possession

    12. Possession

    13. Intent to steal (permanently deprive). Good faith belief in right to ownership is a defense.

    14. False Pretenses

    15. False representation of existing (past/present, not future) fact

    16. Title (ownership)

    17. Intent to defraud (either permanent or temporary). Good faith belief in right to ownership is a defense.

    18. Extortion

    19. False representation of future fact (threat of future harm).

    20. Possession

    21. Affirmative defense that D honestly claims the property sought as restitution for harm done "in the circumstances to which such accusation, exposure, lawsuit or other official action relates."
      Attorney cannot make threat of administrative or criminal sanctions.

    22. Embezzlement

    23. Conversion after lawful acquisition (applies to lost property)

    24. Possession.

    25. Intent to defraud. Good faith belief in right to ownership is a defense. Intent to pay back is no defense.

    1. ML theft statute: Pretty much everything is now covered by "theft."
    Robbery (aggravated larceny)

    1. Committing a theft of property from a person or their presence with violence or intimidation (otherwise larceny of the person)
    2. 1st degree if attempts to kill or purposely inflicts or attempts to inflict serious bodily injury
    Burglary (default = 3rd degree)

    1. Entering into a building, structure or just about any other enclosure with purpose to commit a crime (any felony or petty theft) therein (intent at time of entry) without consent of entry or unlawful purpose
    2. 2nd degree if

    1. Dwelling of another at night
    2. Inflicts or attempts to inflict bodily injury on anyone
    3. Armed with explosives, deadly weapon.

    1. Act

    1. Slightest act of penetration
    2. Committed by means of force or fear of immediate and unlawful bodily injury, without woman�s consent.

    1. Is "no" enough, or does D have to use true force?

    1. Victim physical resistance not needed
    Mental state

    1. Attacker�s state of mind must be an honest and reasonable belief that woman was consenting (not coerced) to defend against charge.
    2. Determining victim�s state of mind re: consent is difficult. If victim could not consent, it�s rape.
    3. Consent and mistake of fact irrelevant for statutory rape (strict liability crime).

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