RG Criminal Law

A.R. + M.R. + [Circum. + Result ]
Elements of Crimes – Actus Rea + Mens Rea +(Causation) [concurrence] = Crime.

 Positive – Affirmative Act(s)
 Must be voluntary

(“Automatism”)
 Reflex or convulsion
 Unconscious or asleep
 Hypnotism
 Bodily determination not product of effort or determination of actor’s mind.

General Rule: No duty to help
 Duty to Act (SCRAP)
 By statute
 By contract
 Status relationship
 Voluntarily assume duty care cannot leave person in worse position.
 Caused/created the peril

 A duty (created by above)
 An omission of that duty with the necessary mens rea
 Causal relationship between omission and result
 Awareness on part of actor of facts giving rise to the duty
 Performance of the duty was possible.

conscious object/goal/purpose or knowledge to substantial certainty harm will result
 transfer victims not crime

 Note: MPC no specific or general intent distinction see 2.08

Homicide – intent to kill.
 Knowledge – substantial certainty
 Willful Blindness Doctrine (Jewell) – inference of knowledge
• Statute requires knowledge of fact
• Person aware high prob/strong belief
• Deliberately avoids confirm suspicion

 Intent transfers to victim who is harmed.

guilty regardless of mental state – defense if not voluntary act and may argue should not be strict liability crime -

– particular issue when result as part of offense definition.
C/L Year and Day Rule in homicide.
 Limitations on causation
 Actual Cause (But-For) – but for the D act the harm would not have occurred.
 Proximate Cause (Legal)
• Foreseeability
o Intervening causes dependent (responsive) vs. independent (coincidental)
o Joint and Coincidental Causes

 A link does not have to be only link - Link in chain of causation
 Need not be only cause
 Need not be last cause
 Any link in chain of causation

 “Sufficiently direct” cause
 Harm foreseeable? (obj.)
o Manner doesn’t have to be foreseeable only the type of harm (dead body)
 Intervening Act? (Superseding?) A superseding intervening act breaks the causal chain.
 Act foreseeable?
 Who could best control?
 Who do we want to punish? (policy)
 Acts of Nature (Intervening)
 Routine – Don’t break chain
 Extraordinary – Superseding

o Related -- Doesn’t break chain
o Unrelated -- May be “independent,” intervening act

[Joint enterprise/venture]
 Drag racers – reckless if on main highway perhaps not if on back road.
 Russian roulette - reckless
 “Mutual encouragement”

CRIMES AGAINST THE PERSON

is the unlawful killing of another human being caused by the D’s act. Death must occur within year and day of the death causing act under common law.

A homicide committed with malice without justification, excuse or mitigation..

 Intent to kill
 Natural and Probable Consequences Rule – ordinary people intent the natural and probable (foreseeable) consequences of their acts; D is an ordinary person therefore intended natural and probable consequences.
 Dead Weapon Doctrine – a deadly weapon is one likely to cause death in the manner used.
 Intent to cause serious bodily harm
 Depraved heart ( Gross Recklessness) D acts with a conscious disregarded a substantial and unjustifiable high risk of death or serious bodily injury evincing an extreme indifference to the value of human life..
 Felony Murder

At common law no degrees of murder.
 First Degree Murder – Malice plus Premeditation AND Deliberation (below) & Felony Murder (Always look for inchoate)
 Second Degree Murder – all other malice murders not amounting to first degree.
 Voluntary Manslaughter – intent to kill with mitigation. HOP / Provocation – (imperfect self-defense and diminished capacity and coercion).
 Inv. Manslaughter. – unintentional killing Unlawful Act Doctrine/Negligent homicide

– 1st Degree
 Intentional/Desire/Purposeful w/
 Any cool moment of deliberation - Deliberation requires a weighing of the act and the consequences (cool mind – not out of excitement or passion)
 Purposeful + Preconceived design can establish deliberation.
 Premeditation requires thinking about before hand. – no time is too short.
 Factors for Determining Premeditation
 Planning- Motive- Manner

 General Rule: C/L = Any killing committed during the commission or perpetration of any felony is murder. Modernly:
• Enumerated felonies (BARRKM) or inherently dangerous felonies = 1st Degree
• Modern Law: Many Limitations – see below

Limitations on Felony Murder Rule
 “Inherently Dangerous” felony
 Enumerated felonies ie BARRK
 Some courts look at definition of crime in abstract can it be committed in non-dangerous manner if so then cannot be felony for FMR.
 Other jrx look at how crime was committed.
 Independent (collateral) felony (Merger Doctrine) – a felony does not merge if the assaultive conduct involves an independent purpose separate from the underlying felony..

 Agency Jurisdiction (Majority) – felons are only vicariously liable for death caused by the felons in furtherance of the felony. The felons not vicariously liable for death of co-felon, police or bystander if caused by third party as not in furtherance of the felony.

 In abstract
 High probability of death when commission of felony?
 As applied – as from the view of how this felony was committed.
 Was this felony dangerous as committed?

(i.e., “merger rule”)
 Is the felony an integral step toward killing someone?
 Look at definition of felony
 Does it already require proof of malice (“under circumstances likely to cause grievous bodily harm”)
 Is there a separate purpose in committing felony? (e.g., robbery, arson]

 During course of felony (res gestae req.)
 Temporal & geographical proximity and causal conn. Btw felony and homicide.
 Begins when D can be guilty of attempt Place of temporary safety rule (escape rule)
 In furtherance of felony
 Agency theory – (above)
 Proximate cause theory (above

but presume gross recklessness (depraved heart) when homicide occurred in course of certain felonies.
• Provocative Act / Vicarious liability doctrine – occurs when felon indirectly causes death by his provocative actions like initiating a gun battle.

 Intent to Kill without premeditation or deliberation.
 Premeditation – some reflection
 Deliberation – cool mind
 Intent to inflict serious bodily harm and death results - grave not trivial.
 Depraved Heart. Requires gross recklessness demonstrating a depraved heart or extreme indifference to the value of human life. It is a conscious disregard of a substantial and unjustifiable high risk of death or serious bodily injury.

intent to kill committed under extenuating circumstances that mitigate murder to voluntary manslaughter.
Intent to kill with either: provocation HOP; imperfect self-defense; (min.)diminished capacity EED (below) or in some cases coercion..

 ELEMENTS: 4 = (1) legal adequate provocation such to raise in a reasonable person, (2) D was so provoked, (3) inadequate cooling off period such that a reasonable person would not have cooled off and (4) the D in fact did not cool off.

(Extreme Emotional Disturbance) reduces murder to vol. manslaughter
 Homicide otherwise be murder committed under influence of extreme mental or emotional disturbance for which there is reasonable explanation or excuse for the extreme mental or emotional disturbance (not the homicide). Viewpoint of actor’s situation under circ. As he believes them to be.
 No act of provocation needed/ no cooling off time -

is an unintentional killing
 Intent to cause slight bodily injury
 Unlawful Act Doctrine – limited to malum in se misdemeanors, moral wrongs or lawful acts committed in unlawful ways. .

 General Rule: Death occurring during commission of misdemeanor or non-dangerous felony.
 Limitations:
 Dangerous
 Malum per se (evil itself)
 Proximately related

 Step #1:
 Realize and disregard risk? (Recklessness)
 Should have realized risk? (Negligence)
 Step #2:
 Gross?
 Social utility of conduct vs. Magnitude of Risk
 Benefit
 Type of Harm
 Cost of alternative *Likelihood of Harm

Other Crimes Against Person

is either an attempted battery no awareness needed (specific intent) or acting with intent to cause reasonable apprehension of a harmful or offensive contact with the apparent ability to do so (awareness needed). (general intent)

(general intent)occurs when the D acts with the requisite intent causing an unlawful application of force to the victim (poison is a battery.)

(aggravated form of battery) D acts with requisite intent causing an unlawful disfigurement, dismemberment or disablement.

– (general intent) – Modern: Unlawful sexual intercourse without consent.

– unlawful confinement of another person without consent.

– False imprisonment plus some movement of victim.

– Merger Doctrine Applies
 M.R. -- Specific Intent required to commit the target offense – (MPC: “as believed”)
 A.R. – step beyond mere preparation test to determine if step is sufficient:
 First step
 Last step
 Dangerous Proximity
 Unequivocality Test (“res ipsa loquitur”)
 MPC: “Substantial step strongly corroborative of criminal intent/purpose”

 CL: No withdrawal/abandonment defense
 Modern: (MPC 5.01(4))
 Must be complete and voluntary
 Not complete and voluntary if:
• Fear of getting caught
• Postpone until more advantageous time or target was not available

 Legal Impossibility is a defense to attempt – Factual Impossible is not a defense. (can try to argue these both ways – manipulate the language.)

– Where the act, if completed would not be a crime.

– impossible to complete due to physical or factual condition unknown/uncontrolled by D.
 Test if D leaves scene frustrated it is factual impossibility – if D leaves scene satisfied then legal impossibility.
 Pure Legal Impossibility
 Be sure to distinguish Impossibility from Mistake of Fact.

 A.R.
 Aid/Abet = Help
 M.R.
 Purpose or Knowledge to aid/abet help
 Specific Intent Desire/Purpose for crime to succeed
1. Principle in 1st Degree - The actor who perpetrates the crime
2. Principle in 2nd Degree - Present at scene and aids and abets. Conviction does not depend upon conviction of principle..

Distinction between accomplice and principle abolished. Modernly – principal 1st, 2nd and Accessory before fact – all accomplices.
 Mens Rea – dual (above)
 Effect of help not enough; mere presence generally not enough unless prior agreement

 Actus Reus
 Don’t need much
 Encouragement sufficient
 Principal need not know person is aiding
 Presence is enough if prior agreement
 Principal Need Not be Convicted

– No Merger Doctrine
C/L - “An agreement between two or more persons to commit an unlawful act or lawful act by unlawful means..” Modern: mere overt act required by one of the conspirators.
Inchoate crime
 Modernly – Requires overt act not substantial step (just overt act committed by any co-conspirator– any tacit act will do)

 A.R. Agree
 M.R.
 Dual Intent to agree (general) & specific intent that the target crime be completed.
 Purpose for crime to succeed
 Overt Act (not at C/L) – any act will do.

 Need not be express agreement
 Tacit, implied agreements okay
 Shown by concerted action – common venture
 All co-c’s need not agree at same time or even know of each other

 Do not charge conspiracy when crime necessarily requires two persons
 Bilateral v. Unilateral approach
 Bilateral – Common Law
 Unilateral – MPC (feigned)

 Co-c vicariously liable of criminal acts of co-conspirators in furtherance of conspiracy
 Need not do anything to help
 Need not even know co-c will commit that crime as long as foreseeable crime in furtherance of target crime.

Specific Intent Desire/Purpose
 1. Direct evidence
 2. Circumstantial evidence
 “Stake in the venture”
 No legitimate use for goods or services
 Volume of business

 Any act
 Only need one
 Can be done by any co-conspirator
 Need not be criminal in itself
 Tells story of conspiracy
 Wheel
 Chain
 Manufacturer
 Middleman
 Distributors

 To avoid co-c liability for further crimes by co-conspirators
 Full and voluntary renunciation
 Must notify co-c
 Mod. And MPC - To avoid liability for conspiracy charge (not available at common law)
 Full and voluntary renunciation
 Must notify co-c
 Must thwart by contacting police or victim

A person who asks, invites, encourages, commands, induces a person to commit a crime with the specific intent (purpose/goal) to promote the commission of the target crime.
 Merges with attempt.
 Merges – both solicitation and attempt will merge with completed target crime.

Against Property

– the trespassory taking (caption) and carrying away (asportation) of the tangible person property of another with the intent to permanently deprive.

D makes a known past or present false representation causing the victim turn over possession of property with the intent to permanently deprive.

– guilty if fails to take reasonable measures to restore property if possible to identify owner..

D makes a known past or present false representation either intentionally or recklessly causing the victim to transfer title to property to D with the intent to defraud.

Fraudulent conversion of property of another by one in lawful possession (not custody).
o If intent to replace Emb. Must be exact property.

– taking of personal property of another from their person or presence by imminent force/threat of force or intimidation with the intent to permanently deprive. (If not imminent then extortion)

– C/L – corrupt collection of unlawful payment by an official under color of office. Modern: obtaining property from another by oral/written future threats.

– receiving possession and control of “stolen” personal property known to be another’s property known stolen with the intent to permanently deprive.

Offenses Against Habitation

– is the trespassory breaking and entering into the dwelling house of another at night with the intent to commit a felony therein.

is the malicious burning of the dwelling house of another.
 Intent can be established by intent, knowledge or reckless disregard of obvious risk it would burn.

Solicitation
Conspiracy
Attempt
First Degree Murder
Larceny
Larceny by Trick
Embezzlement
False Pretenses
Robbery
Burglary
Forgery

Battery
Rape
Arson
(virtually all others except for strict liability and specific intent crimes.)

Affirmative Defenses
 Justifications
 Self-Defense
 Defense of Others
 Defense of Property/Habitation
 Lawful Use of Force Defense/ Crime Prevention and Apprehension of felon
 Necessity

C/L –A non-aggressor is justified in using deadly force if D (honestly) and reasonably believes that its use is necessary to prevent imminent and unlawful use of deadly force upon them. (if non deadly will suffice cannot use DF).

 CL: Reasonable person in defendant’s situation (semi-objective)
 Physical attributes
 D’s prior experiences
 Circumstances of attack (movements, comments and past of assailant)
 MPC: Defendant believed (subj.)

 CL: Strict standard
 MPC: “or threat of serious felonies, like kidnapping, rape and robbery.”
Imminent vs. Inevitable
 CL: Strict time requirement

– Minority Rule
 Only when planning to use lethal force one must retreat if safe to do so.
 May stand ground when defending with non-lethal force
 No duty to retreat in own home (“Castle Rule”)
 Not Initial Aggressor
 Initial Aggressor vs. Instigator
 Who escalates to violence?
 victim of rape or robbery does not have to retreat.

 Confrontational homicide
 Killing while asleep or hiring to kill
 Creditable evidence – prior abuse, expert testimony re BWS
 Transferred-justification doctrine

– c/l person may use as much force as resoanbel necessary, short of deadly force, to resist an illegal arrest. If uses deadly force = manslaughter treated the unlawful arrest as a trespass ot the person;
 Most states abandon defense in non-excessive force cases through statutes.
 Best idea to forgo resisting and seek remedy.


– generally, use force to protect third person from unlawful use of force by aggressor. – Parallels the rights of the victim.

Crime Prevention – either felony or breach of the peace misdemeanor

Police or private citizen justified in use non-deadly force if (1) reasonable believes that person is or has committed felony, or misdemeanor (breach of peace) and (2) force used is necessary to prevent commission of offense or effectuate arrest.

 Crime Prevention - Maj. Narrow – limited to prevent forcible or atrocious felonies (force of threat of physical violence). Min. Broad – police/private if reasonable believe person committed any felony and deadly force necessary to prevent commission of crime.
o Private Person – limitations for deadly force – must be forcible felony, arresting party must give suspect notice of intention to make arrest, and arresting party must be correct in belief that person actually committed the offense. (Reasonable mistake of fact will not help here.)

– Must believe substantial risk of death or SBI to another and the use of deadly force only if poses not substantial risk of injury to bystanders.
 Effectuate arrests (MPC) – deadly force never by private citizen acting on own to make arrest or prevent escape.

– usually natural forces
(1) Faced with clear imminent danger, (2) reasonable belief his conduct will be effective in avoiding the greater harm, (3) no legal alternative, (4) must be lesser evil, (5) no contrary legislative intent (addressing the situation), (6) P must come with clean hands – cannot have substantially contributed to the emergency.

– usually human forces
Common Law -
 (1) Threat of death or SBH that is imminent and present at time of criminal act
 (2) To defendant or close family member
 (3) Reasonable belief threat genuine
 Such fear that ordinary person would yield
 (4) No reasonable escape except to comply
 (5) D not at fault in exposing self to threat.
 no duress defense to criminal homicides
 Note: Imperfect duress = Manslaughter (may mitigate)

 Competency [Ability to stand trial]
 Understand proceedings
 Able to participate/assist in defense
 Insanity
 Full defense
 Diminished Capacity MPC Minority - Partial defense usually mitigates to lesser degree.
 Evidence of mental defect not amounting to insanity – antisocial personality disorder; etc.

 M’Naghten – complete cognitive impairment -
 D presumed sane
 At time of crime
 Disease or defect
 Elements: D at time of criminal act due to mental disease or defect did not either
o know nature & quality of acts, OR
o know acts were “wrong”
 Irresistible impulse- combination of volitional and cognitive unable to control his actions or conform his conduct to the law (lacked self control and free will) (“an impulse the defendant could not resist”)
 Durham Product Test – lenient - Defendant’s conduct was a product of a mental illness (“but for the mental illness, defendant would not have done the act”)
 MPC – Substantial Capacity - volitional
 D presumed sane
 At time of Crime
 Due to Disease or Defect
 D Lacks substantial capacity to:

 Legal Concept (not medical)
 Look at factors
 Verifiable symptoms
 Medical history
 Number of cases
 Easily faked?
 Stigma?
 Brought upon self?

(Minority)– not insane but due to mental defect not amounting to insanity did form have mens rea element necessary for crime.
 Reduce specific intent crime to general intent crime (murder to manslaughter) evidence of mental disorder. (antisocial personality disorder, etc – PMS – TSD.
 MPC - Can use to prove no mens rea for any crime – would be complete defense under MPC.

– disturbance of mental or physical capacities resulting from introduction of any substance into body.

(Full defense)
 D unaware ingesting drug or alcohol
 D forced to consume drug or alcohol
 Pathological effect – freakish reaction to the drug.
o Defect or disease  amounts to insanity defense

(usually constitutes reckless conduct becoming voluntarily intoxicated) -Partial defense but really a failure of proof claim on the mens rea.- Specific Intent
 If Reduces specific intent of the crime may be a defense – to a specific intent crime.
 Note unlawful street drugs no warnings and are dangerous – laced w/PCP still voluntary.
 MPC three distinctions (1) self-induced; (2) pathological and (3) involuntary.
 Any form is defense if negates mens rea. And involuntary and pathological are affirmative defenses if amount to insanity

if you need to know and you do not know then you have defense.

• Only a defense if you don’t know a “material fact”
• If you don’t need to know that fact to be guilty, mistake is not a defense (strict liability element)
 Mistake of fact may be a defense if negates the specific mens rea of crime
 Specific intent – honest mistake of fact (even if unreasonable)
 General intent – honest and reasonable mistake of fact only.
 Moral-Wrong Doctrine – if reasonable mistake regarding attendant circum yes manifest blameworthiness – no exculpation if facts had been as defendant believed them to be.
 Legal-Wrong Doctrine – (more lenient) guilty of higher offense even though lower mens rea but higher actus rea – guilty of higher offense.
 MPC – mistake of fact defense if negates any element of crime – not available if D guilty of another crime had circ. been as believed – then punishment lesser offense.

if D was predisposed to commit the crime – this will not work.
Fed: “Predisposition”
• Subjective approach
• Exception: Motion to dismiss for outrageous govt. misconduct
Cal: Govt. conduct likely to induce law-abiding person to commit crime?
• Objective approach
MPC: Obj. approach to judge

 Deadly force may never be used solely to protect property.
 Claim of Right – The claim-of-right defense provides that a defendant's good faith belief, even if mistakenly held, that he has a right or claim to property he takes from another negates the felonious intent necessary for conviction of theft or robbery. At common law, a claim of right was recognized as a defense to larceny because it was deemed to negate the intent to steal, of that offense.
 Recapture of Property – generally cannot use force to recapture property unlawful dispossess except in hot pursuit.
 Defense of Habitation: split – (1) deadly force may be used if the D intends an unlawful and imminent entry of a dwelling; (2) only if D intends to commit a forcible felony or kill or SBI and force necessary to prevent intrusion.

Consent (almost never a defense to crime)

In order for fraud to vitiate consent, the fraud must relate to the nature and quality of the act consented to (i.e., fraud in the factum – fraud as to the actual act itself). Fraud in the inducement does not vitiate consent (the reason for the act.) (Remember in rape case.)

Under age 7, there is no criminal liability
Under age 14, there is a rebuttable presumption of no criminal liability
16 and above available to be tried as adult