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CRIMINAL LAW Sum & Substance

Professor Joshua Dressler

I. INTRODUCTORY POINTS

A. Sources of Criminal Law.

1. Common Law.

2. Statutes Derived from Common Law.

3. Model Penal Code.

B. Criminal Law vs. Civil Law.

1. Criminal.

a. Defendant is punished.

b. The criminal conviction itself says defendant is a moral wrongdoer. It

is a condemnation by the community/ “a morality play.”

2. Civil.

a. Defendant pays victim.

b. Defendant is not morally stigmatized.

C. Theories of Punishment.

1. Retribution.

a. People should get what they deserve.

b. Humans have free will. If they choose to do wrong, it is appropriate to

punish them.

c. Looks backwards. Only punishes to the extent of the wrongdoing.

2. Utilitarianism.

a. All forms of pain are bad. Punishment is not good, but neither is crime.

Punishment is proper if imposition of pain will reduce the likelihood

of future crimes.

b. Looks at people as moral calculators.

c. Forms of utilitarianism.

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i. General deterrence.

ii. Specific deterrence.

iii.Rehabilitation.

D. Principle of Liability.

1. General Rule: We do not punish a person because he is bad, immoral, or

dangerous, or even because he committed a wrongful act. We only punish if

that act is also defined, in advance, as a crime.

2. Law cannot be vague. The law must be written in a sufficiently clear manner

so that a reasonable law-abiding person can determine what is prohibited.

E. Burden of Proof.

1. “Beyond a Reasonable Doubt.” This standard means that the fact-finder must

have an abiding conviction of the defendant’s guilt.

2. The government must prove, beyond a reasonable doubt, every

element of a crime. This is a constitutional requirement.

II. COMPONENTS OF A CRIME

A. Actus Reus. The physical part of the crime.

B. Mens Rea. The mental part of the crime, or the state of mind of the defendant when he

committed the crime.

C. Five Elements of a Crime:

Voluntary act or omission.

Social harm.

Mens rea—A morally culpable state of mind.

Actual causation.

Proximate causation.

1. Voluntary Act or Omission.

a. Common law voluntary act: A willed muscular action.

b. Not every act must be voluntary. It is enough that the relevant conduct

includes a voluntary act.

c. Omission: Ordinarily, no punishment for failure to act. A duty to act

arises when there is a:

i. Duty required by statute.

ii. Special status relationship.

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iii. Contractual requirement to act.

iv. Creation of a risk of harm to another.

v. Once you act, you then stop, and it makes matters worse.

2. Social Harm.

3. Mens Rea.

a. Mental state of actor at time he committed the actus reus.

b. Defined in two ways:

i. Person acts with requisite mens rea if he committed actus reus

with a morally blameworthy state of mind.

OR

ii. With the particular wrongful state of mind set out in the

definition of the offense.

c. Strict liability.

i. Mens rea is not required.

ii, Typically applies to public welfare offenses.

iii. Typically involves malum prohibitum conduct, very minor

punishments, and conviction is not generally stigmatizing.

iv. There is a strong presumption against strict liability.

d. Model Penal Code mens rea terms.

i. Purposely.

ii. Knowingly.

iii. Recklessly.

iv. Negligently (criminal negligence).

e. Specific intent vs. criminal intent.

i. Some defenses are only available for specific intent crimes.

ii. Specific intent: By definition, the crime requires

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proof of some particular mens rea that goes beyond the social

harm sought to be punished. All other offenses are “general

intent.”

f. Mistake of fact.

i. In strict liability, mistake of fact is irrelevant.

ii. For specific intent crimes, mistake of fact will exculpate

defendant if mistake disproves specific intent element of the

crime even if mistake is unreasonable.

iii. For general intent crimes, the issue is whether mistake was

blameworthy. Generally, a person will be acquitted if mistake

of fact was a reasonable one, and convicted if an unreasonable

one.

iv. Moral wrong doctrine, occasionally used with general intent

crimes: Look at facts through eyes of defendant. Then, ask, is

what defendant thought he was doing considered by society to

be a morally wrongful act? If yes, the defendant may be

convicted, even if his mistake was reasonable.

v. Model Penal Code does not distinguish between

general and specific intent. In regard to mistakes of fact, it just

asks, did the defendant have the required mens rea, set out in

the statute?

g. Mistake of law.

i. Generally, ignorance of the law is no excuse, even if mistake

was reasonable.

ii. Exceptions:

(a) Mistake reasonably based on an official mistaken

interpretation of the law by a body or person

responsible for interpreting the law.

(b) Statute requires that defendant be aware of another

law, and defendant’s lack of awareness of the other

law negates an element of the offense requiring

knowledge of that law.

iii. Model Penal Code generally follows common law.

4. Actual Cause.

“But for” test: But for the defendant’s voluntary act or omission, would the

social harm have occurred when it did?

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5. Proximate Cause.

a. Look at all causal candidates that meet the “but-for” test, and decide

which one(s) should be criminally charged.

b. When analyzing proximate cause, draw a line between defendant’s

voluntary act and social harm. Did anything happen between these

events? If so, there is a proximate cause issue.

c. Intervening factors: relevant factors in determining whether the

intervening factor cuts off the defendant’s liability.

i. Intended consequences doctrine.

ii. Apparent safety doctrine.

iii. Free will.

d. Some courts, rather than applying any of the preceding doctrines will

look at intervening causes and distinguish between two kinds:

i. Responsive intervening causes.

(a) A force that comes into existence as a response to the

defendant’s conduct.

(b) Normally, if responsive, law holds the initial party

responsible, unless responsive force is “totally

bizarre.”

ii. Coincidental intervening cause.

(a) A force is already in existence, but defendant put

victim in position to be harmed.

(b) If coincidental, the original wrongdoer is not

responsible unless that consequence was reasonably

foreseeable.

III. DEFENSES

There are two types of defenses:

Justification: Actor did right thing, or at least did nothing wrong.

Excuse: Actor did something wrong but should not be blamed because of

an excusing condition.

A. Justification Defenses.

1. Self-Defense.

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a. In general terms, use of force must be necessary, force used must be

proportional to threat, and the actor must have a reasonable belief as to

these latter two issues.

b. Common law.

i. Justified in killing in self-defense if at the time the actor used

deadly force that person reasonably believed that such force

was necessary to combat imminent, unlawful deadly force.

ii. “Reasonable belief”: Do not have to be right, but your belief

must be reasonable.

iii. Imminent threat: Threat is just about to happen/the idea is

that you have no alternative.

iv. Person who claims self-defense cannot be the initial

aggressor, but aggressor may regain right of self-defense if he

effectively communicates that he was no longer a threat.

c. Model Penal Code: Pretty much same as common law, but permits a

partial defense if the actor’s mistake is, for example, negligent.

d. Battered woman issue: A jury may consider the battered woman’s

prior experiences with the batterer in determining the reasonableness

of her beliefs.

2. Defense of Third Parties.

a. A person may use force against aggressor to extent person she is

aiding could use self-defense herself.

b. If the third party defense is wrong in his beliefs that other party needs

assistance: most courts, following Model Penal Code, say reasonable

belief is sufficient. A few courts deny defense.

3. Defense of Property/Habitation.

a. Common law: You can never use deadly force to protect personal

property. You may use deadly force under certain circumstances to

protect the home (defense of habitation).

b. Modern jurisdictions: The home dweller must reasonably believe that

intruder intends to commit a forcible felony therein.

4. Law Enforcement Defenses.

a. Crime prevention.

i. It is justifiable for police to use force to prevent crimes.

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ii. Deadly force may never be used to prevent a misdemeanor,

but, at original common law, deadly force may be used to

prevent any felony.

iii. Today, deadly force is only appropriate if reasonably

believed to be the only way to stop a forcible felony.

b. To effectuate arrest.

i. Common law: Could use deadly force in arrest or

prevention of escape of any felon.

ii. Supreme Court has ruled the Constitution prohibits excessive

use of force in making an arrest or prevent flight after an

arrest. Each case must be decided on its own facts.

iii. In general, today, deadly force is limited to forcible felonies.

5. Necessity (Model Penal Code: Choice of Evils Defense).

a. A residual defense.

b. Elements:

i. Reasonable belief of threat of imminent harm to self or others,

including property.

ii. Reasonable belief that committing harm is only way to

prevent threatened harm.

iii. Person must not be at fault for creating the emergency.

iv. Harm caused must be the lesser evil (balancing of evils).

v. Most commentators believe this defense is not available for

murder. But Model Penal Code says it can be used for any

crime, provided you meet all elements. (Also, MPC does not

require imminency.)

B. Excuse Defenses.

1. Duress.

a. Threatened with imminent death or serious bodily injury.

b. Reasonably believe that succumbing to threat is only way to save life.

c. Defendant must not have been at fault for being in the situation.

d. Not a defense for murder.

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e. Model Penal Code: It may be an affirmative defense if the actor

engaged in criminal conduct because she was coerced into it by use of

or threat to use unlawful force against her person or the person of

another, a threat a person of reasonable firmness in her situation would

have been unable to resist.

2. Intoxication.

a. Voluntary (Model Penal Code: Self-Induced).

i. Not an excuse.

ii. But, may serve as a mens rea defense for a specific intent

crime.

iii. Model Penal Code: Same general principles. But, if charged

with crime of recklessness, which ordinarily requires

awareness of risk, actor may be convicted of recklessness,

even if he was unaware of the risk, if he would have been

aware if sober.

b. Involuntary.

i. Ingested intoxicant innocently.

ii. Forced to take intoxicant.

iii. Unforeseeable, unintended response to prescribed

medication.

iv. Courts are sympathetic if one of the above circumstances

explains intoxication, and will permit it to serve as a defense

to general, as well as specific, intent crimes.

v. Defense also permitted if, as a result of involuntary

intoxication, the actor satisfies the state’s insanity definition.

3. Insanity.

a. Four states have abolished the insanity defense.

b. Insanity is an “excuse” because society wants to distinguish between

“the mad and the bad.”

c. If not guilty by reason of insanity, defendant is civilly committed to a

mental institution.

d. One can be mentally ill without being insane.

e. Insanity tests.

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i. McNaghten Rule.

(a) Two prongs:

(1) Defendant did not know nature and quality

of act at time he did the act?

(2) Defendant did not know he was doing

something wrong.

ii. Irresistible impulse test.

(a) Involves lack of capacity to control one’s actions.ion,

(b) When applied, test is usually added as a third prong

to M’Naghten.

iii. Model Penal Code: Defendant lacked substantial capacity to

appreciate the [criminality] or [wrongfulness] of her conduct,

or lacked substantial capacity to conform conduct to the law.

iv. Product/Durham Test.

(a) Used in only one state.

(b) Defendant is not guilty if criminal conduct is the

product of a mental illness.

4. Diminished capacity.

a. Mens rea version: If defendant, because of abnormal mental condition,

lacks specific intent to commit a specific intent crime, he will be

acquitted. Some states do not recognize this defense, but MPC does.

b. Partial responsibility version: To reduce the crime of murder to the

lesser offense of manslaughter on the ground that person claiming

defense is mentally ill, or has a low IQ, making him less culpable than

a person who does not have that condition. Defense is recognized by a

few jurisdictions and Model Penal Code.

IV. HOMICIDE

A. Early Common Law Murder. Murder is the killing of a human being by a human

being (would include suicide).

B. Modern Common Law. Murder is the killing of a human being by another human

being.

1. Two Forms of Criminal Homicide: Murder and Manslaughter.

2. Actus Reus.

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Issues are rare, but occur when issue is whether the victim is a “human being”:

when the victim is a fetus or a person is brain dead but on artificial life

support.

3. “Year and a Day” Rule.

At common law, prosecution for criminal homicide is barred if the death

occurs more than one year after the relevant assault occurred.

4. Mens Rea: Usually, it is the mens rea requirement that is at issue.

C. Malice.

1. “Aforethought.”

The word “aforethought” just reminds us that you cannot be convicted of

malice “afterthought.”

2. “Malice.”

“Malice” is covered by four “human endangering” states of mind:

a. Intent to kill a human being (intend to kill or know with substantial

certainty that death will result).

b. Intent to inflict grievous bodily injury on victim, and victim dies.

c. Acting with an “abandoned and malignant heart,” or a “depraved

heart,” or wkith “depraved indifference toward human life.” Today,

probably would refer to defendant as acting with “extreme

recklessness.”

d. Felony Murder Rule.

i. Definition: Guilty if persons kills another person during

commission or attempted commission of any felony.

ii. Common Law. The common law also treats the escape from

the felony as part of the res gestae, or body, of the crime.

Thus, felony-murder rule applies.

iii. Rule May Be Narrower. Some jurisdictions have narrowed

the rule, for example, by requiring (i) that the felony be an

“inherently dangerous felony,” or (ii) adding an “independent

felony” limitation.

D. Degrees of Murder. Many states have now divided murder into degrees. First degree

involves the stiffest penalty.

1. First Degree Murder.

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a. Murder that is committed in a particular way, e.g., “killing by poison”

or “by lying in wait.”

b. Killing occurs during the commission of enumerated felonies.

c. Killing is “willful, deliberate, and premeditated.”

2. Second Degree Murder.

All other kinds of “murder” (as defined by common law) are second degree

murder.

E. Model Penal Code.

1. No Malice Aforethought Requirement, No Degrees of Murder.

2. Definition: A person is guilty of murder if she kills another person purposely,

knowingly, or recklessly in a manner manifesting extreme indifference to the

value of human life.

3. There is no felony-murder rule, but if a death occurs during the commission of

an enumerated felony, this creates a rebuttable presumption of recklessness.

F. Manslaughter.

1. Common Law.

a. An unlawful killing by a human being of another human being

without malice aforethought.

b. Divided into voluntary and involuntary.

c. Heat of passion (voluntary manslaughter): Killed because of “adequate

provocation,” during heat of passion, and heat of passion occurred

before the actor had reasonable opportunity to cool down. Words

alone never constitute adequate provocation.

d. Involuntary Manslaughter.

i. The commission of a lawful act that might produce death and

was done in a criminally negligent manner is one form of

involuntary manslaughter.

ii. Misdemeanor manslaughter/unlawful act: An unintended

homicide that occurs during the commission of an unlawful

act that does not amount to a felony is also involuntary

manslaughter.

2. Model Penal Code version of manslaughter.

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a. If a killing that would otherwise constitute murder occurs as a result of

extreme mental or emotional disturbance for which there is a

reasonable explanation or excuse, the defendant will be guilty of

manslaughter. Provocation, per se, is not required. “Diminished

capacity” also qualifies.

b. A reckless, but not extremely reckless killing, constitutes

manslaughter. A negligent killing constitutes a lesser crime of

“negligent homicide.”

V. RAPE

A. Common Law.

1. Definition: Sexual intercourse by male with female not his wife

without her consent.

2. Forcible rape requires proof of both non-consent by the female and use of

force by the male. The amount of force required to constitute forcible rape

was linked to a “resistance requirement.”

3. Resistance Requirement: If the male used force likely to cause death or

serious bodily injury, a female did not have to resist. If lesser force was used

or threatened by the male, the female had to resist “to the utmost” in order for

crime to constitute rape. In recent years, most states have either abandoned the

resistance requirement or only require “reasonable resistance.”

4. Mens rea: A reasonable mistake of fact regarding the female’s lack of consent

is a defense; an unreasonable mistake is not a defense.

B. Modern Law.

1. Some states no longer require any more force than is involved in the act of

sexual penetration itself.

2. A few states now provide that the person seeking intercourse must obtain

affirmative permission, freely given, for sexual intercourse. Thus, not only

does “no” prove rape, but absence of “yes” also does.

VI. PROPERTY OFFENSES

A. Larceny.

1. Definition: Trespassory taking and carrying away of the personal property of

another with intent to steal it (intent to permanently deprive the other of the

property).

2. Elements:

a. Trespass: Wrongful (non-consensual).

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b. Taking: Interference with possessory rights, not ownership

rights. One can potentially have custody but not possession. It is the

act of taking possession that satisfies this element.

i. A person may only have custody of property if the possessor

remains nearby and provides the other person with only limited

control of the property.

ii. An employer retains possession of property she provides the

employee for use in the job. The employee has mere custody.

iii. A bailee, who takes a container from a bailor, has possession

of the container, but mere custody of its contents. If the bailee

“breaks bulk” (opens the container), the bailee takes

possession of the contents.

c. Carrying away: At common law, a “carrying away” act of even the

most trivial amount (e.g., one inch) is sufficient to meet this element.

d. Personal property: Real property can become personal property, if it is

severed from the land and remains in that condition for a period of

time.

e. Of another: As the issue is one of possession, an owner can be guilty

of larceny if he wrongfully takes possession of property he owns from

someone with lawful right to possession.

f. With intent to steal (this is a specific intent crime). At common law,

defendant must intend to permanently deprive the other person of the

property. If defendant trespassorily take property intending to return it

but later decides to keep it, the law considers this to be a new

trespassory taking, under the “continuing trespass doctrine.”

3. Larceny by Trick.

When a person misrepresents his motives to get possession of the property of

another by fraudulently claiming he will return it , “consent” is vitiated, and

the taking is deemed trespasssory in nature. The wrongdoer is guilty of

larceny by trick.

B. Embezzlement. A person who obtains lawful possession of personal property of

another, typically by entrustment, who then converts the property to his own use is

guilty of embezzlement.

C. False Pretenses. This offense, unlike larceny and embezzlement, focuses on the issue

transfer of title, rather than taking of possession. Here, the person who owns the

property gives the defendant both possession and title to the property, based on the

defendant’s misrepresentations.

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VII. INCHOATE OFFENSES

A. Attempt.

1. Mens Rea.

Must have specific intent to commit the target offense.

2. Actus Reus: How Far Must Actor Go?

a. Different tests at common law.

i. Physical proximity test.

Actor must have apparent power to complete the crime

immediately.

ii. Dangerous proximity test.

Consider how close actor physically is to committing the

crime, how close actor is temporally, and how serious the

crime is. The more serious the crime, the less physically and

temporally close actor has to be.

iii. Equivocality.

Looking at actor’s conduct alone, at what point can you

unequivocally tell what he is about to do?

iv. Probable desistance test.

When would a normal citizen think better of his actions and

desist? When has an ordinary person gone past the point of no

return?

b. Model Penal Code.

An actor is guilty of attempt, assuming the requisite mens rea, if she

takes a “substantial step” in direction of committing the crime.

3. Special Defenses (Normal Defenses Also Apply).

a. Impossibility.

i. Factual vs. legal impossibility.

ii. At common law, legal impossibility is a defense, factual is not

a defense.

iii. Today, many states and the Model Penal Code have abolished

this defense in its entirety.

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b. Abandonment/renunciation.

i. Not a common law defense.

ii. Model Penal Code: If actor crosses the line of attempt, but has

not yet been arrested, if he then voluntarily and totally

abandons his criminal purpose, then he has a defense.

B. Criminal Solicitation. If an actor requests, encourages, or asks another to commit a

crime with the intention that the other person perpetrate crime, he is guilty of

solicitation the moment he makes the request.

C. Conspiracy.

1. Common Law.

a. An agreement between two or more persons to commit an unlawful

act. The moment there is a meeting of the minds, the common law

crime of conspiracy has occurred.

b. Plurality requirement: Two or more persons must have the requisite

mens rea (e.g., if one of the two is really an undercover officer

feigning agreement, no conspiracy). The Model Penal Code rejects

this requirement.

2. Modern Jurisdictions.

Many states and the Model Penal Code require an overt act towards committing

the crime before a conspiracy is said to have occurred. However, the overt act,

does not have to be enough of an act to raise it to an attempt level.

3. Wharton’s Rule.

There can be no conspiracy if the underlying crime by definition requires two

people to commit the offense (e.g., selling drugs, committing adultery), unless

more persons are involved in the conspiracy than is required by definition of

the offense.

D. Complicity. Under some circumstances, an actor is accountable for the actions of

another because of a connection to the crime.

1. Accomplice Liability.

Complicity normally comes up as an issue of accomplice liability. There is no

crime, as such, of aiding and abetting. Rather, the accomplice is convicted of

the offense committed by the primary party. It is said that the accomplice

“derives” liability from the perpetrator.

a. Common law terminology.

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i. Principal in the first degree is the perpetrator of the crime.

ii. Principal in the second degree assists in the crime and is at the

scene, but does not actually commit the crime.

iii, Accessory before the fact assists in the crime, but is not at the

scene of the crime.

b. Actus reus (the alternative ways one becomes an accomplice).

i. The actor solicits another to commit a crime, provides an

instrumentality used in the crime, encourages another to

commit a crime, or provides services used in offense, etc.

ii. An actor can be an accomplice even if it is shown that the

perpetrator would have committed the crime without his help.

c. Mens rea.

i. Two states of mind required: intent to do acts that constitute

the assistance; and the intent that this assistance result in the

commission of the offense.

ii. Most jurisdictions (and Model Penal Code) require proof that

the secondary party had the purpose (conscious objective) that

the crime occur; mere knowledge that the crime will occur is

not enough.

iii. With crimes of recklessness or negligence, most courts and

the Model Penal Code provide that a secondary party is an

accomplice if he has the mens rea required in the definition

of the offense.

iv. Natural and probable consequences doctrine: An accomplice

in one crime is guilty of other crimes committed by the

perpetrator if the latter crimes are foreseeable.

2. Significance of “Derivitive” Liability

a. An actor cannot be an accomplice if there is no crime to derive from.

b. Therefore, an actor cannot be an accomplice if the principal committed

no crime or has a valid justification defense.

c. However, an actor may be an accomplice even if the principal has a

valid excuse defense.