Basic principles of Criminal Law
Sources of Criminal law
1. Public law
a. Although the substantive law of crimes doesn’t have anything to do with search and
seizure all of that is criminal procedure still the substantive law crimes is governed by
the law of the Constitution- When we talk about sentencing the 8 amendment says
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we cannot punish people cruelly
b. Statutes are the primary form of criminal law- all 50 states have their own penal
code, the federal government has it only criminal law- so everything is written down
in statutes- legislators play an important role
c. Criminal law because of the way it is produced by legislators or elected by the public,
the criminal law attempts to reflect society’s norms, our cultural values
2. Statutes
3. Model Penal Code (MPC)
a. Each state has their own penal code
b. Some states have adopted the MPC, not in its entirety
c. Authored by the LI
d. Beginning in 1952
e. Official draft completed in 1962
4. Common Law
a. Judge made law
b. Murder definition: “When a man of sound memory and of the age of discretion
unlawfully kills any reasonable human creature in being, and under the King’s peace,
with malice aforethought, either express or implied by the law, the death taking
place within a year and a day” (1600)
Theories of Punishment
1) Retribution
2) General Deterrence
3) Incapacitation- take offender outside of society so that they do not return to society
4) Specific deterrence
5) Rehabilitation- put them into an institution and hopefully rehabilitate them
Burden of proof
1. In re Winship (1970)- “the accused during a criminal prosecution has at stake interests of
immense importance, both because of the possibility that he may lose his liberty upon conviction
and because of the certainty that he would be stigmatized by conviction”
2. Beyond a reasonable doubt- “a reasonable doubt is an actual and substantial doubt as
distinguished from mere possibility from bare imagination, or from fanciful conjecture
Constitutional Limitations
Constitutional limits
1. Void-for-vagueness doctrine
2. Cruel and unusual punishment
3. Equal protection
4. Federalism and the Supremacy Clause
5. Commerce Clause
The dilemma of discretion
1. At what points in the criminal justice system can discretion be exercised?
2. What are the benefits and dangers of that discretion?
3. What structural elements of the legal system seek to contain and manage that discretion?
Due Process Clause, 14 Amendment
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1. “Nor shall any person..be deprived of life, liberty, or property, without due process of law.”
2. This provides fair notice to citizens of what conduct is prohibited and;
3. Limiting police discretion to arrest and jury discretion to imprison people they don’t like
Actus Reus
The Act Requirement
1. The notion of proscription against thought crimes- a person should not be convicted solely because
of their thoughts, but rather they did something that caused some social harm
2. Situational offenses: act must not have been done in direct response to the
government’s actions
3. The act must have been voluntary- choice
4. The idea that status crimes are unconstitutional- being who you are v. doing something
Basic elements to a crime
1. Actus reus
2. Mens rea- guilty mind
3. Causation- the chain that links the d’s acts with the social harm
4. Concurrence between the prohibited act and the prohibited mental state- Actus reus and
Mens rea must be combined
Actus Reus
1. A prohibited act that results in some kind of social harm
2. In most cases Actus Reus isn’t going to be an issue
3. We as a society need somebody to be culpable for their acts
4. Culpability- that people should be punished by bad acts
Thought-act-continuum- DEFENSE
1. Cannot punish someone for just having a bad thought
2. Mere fantasy v. completed social harm
3. The law can’t punish mere fantasy because of the 1 amendment
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4. There is also the right to privacy
5. But if you don’t do anything about your thoughts, there is no crime
Speech vs. Conduct
1. Shirt that says “fuck the draft!”
2. This is protected from the court by the 1 amendment
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Hate crimes vs. hate speech
1. Hate crimes require some sort of act
2. Dalton v. Mitchell
3. Dalton had thoughts, and did not act on his thoughts and Mitchell did
MPC 2.201
1. A person is not guilty of an offense unless his liability is based on conduct that includes a
voluntary act of the omission to perform an act of which he is physically capable
2. The following are not voluntary acts within the meaning of this section
a. A reflex or convulsion;
b. A bodily movement during unconsciousness or sleep
c. Conduct during hypnosis or resulting from hypnotic suggestion;
d. A bodily movement that otherwise is not a product of the effort or determination of
the actor, either unconscious or habitual
3. Liability for the commission of an offense may not be based on an omission unaccompanied
by action unless:
a. The omission is expressly made sufficient by the law defining the offense; or
b. A duty to perform the omitted acts
4. Possession is an act, within the meaning of this Section, if the possessor knowingly procured
or received the thing possessed or was aware of his control thereof for a sufficient period to
have been able to terminate his possession.
Duties to Act
a. Status relationships- mother saving her drowning child
b. Contractual duty
c. Statutory obligations
d. Creation of peril
e. Voluntary assumption of duty
Acting Versus Failing to Act: Liability for Omissions
1. Criminal liability can be based upon an omission if the defendant had a legal duty to act and
was physically capable of acting
2. This omission must cause a social harm
3. There are five situations in which individuals have a legal duty to act:
a. When there is a between the defendant and the victim (ie, special relationship
husband and wife)
b. When the defendant enters into a contract which requires him either explicitly or
implicitly to act in a particular way (ie, to provide care to an elderly individual)
c. When there is a statutory duty to act (such as the duty to pay federal taxes found in
the Internal Revenue Code)
d. When the defendant of harm to the victimcreates the risk
e. When the defendant, who otherwise would not have a duty to act, voluntarily
assumes care of a person in need of help.
4. In order to be held criminally liable for an omission, the defendant must have been
physically capable of acting
5. Ex. A mother is capable of swimming and she sees her baby drowning but does not save
the baby
No General duty to act
1. “ignore they neighbor.
2. That is every American’s right
Status Crimes
1. A constitutional doctrine
2. Conduct vs. Status
3. People should only be punished for their conduct, not the type of person that they are
Mens Rea
The Mens Rea Requirement
1. Mens Rea is sometimes used in a broad sense to refer to culpability generally
2. Mes Rea means the kind of moral blameworthiness that out to make a person
criminally responsible for his or her actions.
3. As a technical matter, mes rea refers to “the particular mental state provided for in the
definition of the offense.”
Types of Mens Rea: Common Law
1. Felonious intent
2. Criminal intent
3. Malice aforethought
4. Guilty knowledge
5. Fraudulent intent
6. Willfulness
7. Recklessness
8. Scienter
Types of Mes rea: MPC
1. Purpose
2. Knowledge
3. Recklessness
4. Negligence
Recklessly: 1. A person acts recklessly with respect to a material element of an offense when he consciously
disregards a substantial and unjustifiable risk that the material element exists or will result from his conduct. The
risk must be of such a nature and degree that, considering he nature and purpose of the actors conduct and the
circumstances known to him, its disregard involves a gross deviation from the standard of conduct that a law-
abiding person would observe in the actors situation.
purpose: 1. A person acts purposely with respect to a material element of an offense when:
a) If the element involves the nature of his conduct or a result thereof, it is his conscious
object to engage in conduct of that nature or to cause such a result; and b) If the element involves the
attendant circumstances, he is aware of the existence of such circumstances or believes or hopes that
they exist.
Negligently- a person acts negligently with respect to a material element of an offense when he should be aware
of a substantial and unjustifiable risk that the material elements exists of will result from his conduct. The risk
must be of such a nature and degree that the actor’s failure to perceive it, considering the nature and purpose of
his conduct and the circumstances known to him, involves a gross deviation from a standard of care that a
reasonable person would observe in the actor’s situation
Knowingly: A person acts knowingly with respect to a material element of the offense when: (1) if the
element involves the nature of his conduct or the attendant circumstances, he is aware that his conduct is of
that nature of that such circumstances exist; and(2) if the element involves a result of his conduct, he is are
that it is practically certain that his conduct will cause such a result
Intent
1. Desires to achieve some result
2. Common law can be proved by knowledge to a virtual certainty
3. One acts with requisite intent if it is his or her conscious object or purpose to cause a
certain result or to engage in certain prohibited conduct
4. One “intends” a particular social harm if one knows to a virtual certainty that one’s actions
will cause that social harm
The Doctrine of “Transferred Intent”
1. An intent to do one thing, such as intending to steal rum, cannot be used as a substitute for
an intent to do another thing.
2. An individual who intends to shoot and kill one person, but instead by mistake shoots and kills another
person, cannot be held criminally liable for intentionally killing that other person.
General or Specific Examples:
1. Larceny is the trespasser taking and carrying away of the personal property of another with
the intent to permanently deprive the owner= intent crimeSpecific
2. Rape is sexual intercourse committed by a male upon a female not his wife by force and
without her consent- general
3. It shall be a crime to receive stolen property, with knowledge that it is stolen- specific
4. Murder is the killing of a human being with malice aforethought- tricky, but general
5. Burglary is the breaking and entering of the dwelling house of another at night with the intent
to commit- specific
Strict Liability Crimes
1. Strict liability for mental state element- one for which the government need not prove
any mental state
2. Or whether the omission was inadvertent.
Mistake
MPC 2.04 (1)
1. Ignorance or mistake as to a matter fo fact or law is a defense if:
2. The ignorance or mistake negatives the prupose, knowledge, belief, recklessness
Mistakes of Law
1. Ignorance of the law is no excuse
2. There are three qualifications to the general rule that ignorance of the law is no excuse.
a. Entrapment by estoppel: A person who reasonably relies on an official interpretation of
the law that turns out to be erroneous (also known as “entrapment by estoppel”) an be
exonerated.
i. This is an affirmative defense
ii. Citizens should not be coerced
iii. This “reliance” or “estoppels defense is sometimes referred to as “entrapment
by estoppels” because it shares with the doctrine of entrapment the policy
that citizens should not be coerced into criminal behavior by government
officials and then punished for it.
b. Ignorance or mistake that negates mens rea- Ignorance of the law can be a defense to a crime if
knowledge that the prohibited conduct is unlawful is an element of the crime.
c. The Lambert Exception: The U.S. Supreme Court has held that under certain limited
circumstances, the prosecution of a person who lacks fair notice of a legal duty
imposed by law can violate due process.
Fair Notice and Due Process (the Lambert Exception)
Lambert v. California (1957)
1. Section 52.39 of the Los Angeles Municipal Code provides that it shall be unlawful for “any
convicted person” to be or remain in Los Angeles for a period of more than five days
without registering
2. Appellant arrested on suspicion of another offense, was charged with a violation of
this registration law.
3. The appellant had been a resident of L.A. for 7 years and in that time she was convicted of
a felony of forgery.
4. She had not at the time of her arrest registered under the Municipal Code
5. The issue is whether a registration act of this character violates die process where it is applied
to a person who has no actual knowledge of his duty to register, and where no showing is made
of the probability of such knowledge
6. Engrained in our concept of due process is the requirement of notice
7. Notice is required in situations where a penalty or forfeiture might be suffered for mere
failure to act.
8. This appellant on first becoming aware of her duty to register was given no opportunity to comply
with the law and avoid its penalty, even though her default was entirely innocent.
9. “we believe that actual knowledge of the duty to register or proof of the probability of such
knowledge and subsequent failure to comply are necessary before a conviction under the
ordinance can stand.”
10. Mistakes of fact, depending on what type mens rea the underlying crime requires,
can sometimes be a defense
11. Mistakes of law are rarely a defense
Causation
Causation
1. Causation is part of the actus reus requirement
2. Causation is namely required for result crimes (crimes which are defined in terms of prohibited result),
but not for conduct crimes (Crimes which are defined in terms of prohibited conduct)
3. The two types of causation are: “actual or but-for cause, and the proximate or legal cause of
the social harm.
Actual (Or “But for”) Causation
1. The actual cause inquiry merely determines whether the defendant’s conduct (or omission)
is one of those causal factors
2. The courts will apply the “but for” test in which the court will ask: “But for D’s voluntary act (or
omission where D had the duty to act), would the social harm have occurred when it did?”
3. If the answer is “no” then D is an actual cause
Proximate Causation
1. The defendant must be both the actual and the proximate cause to be found criminally liable
2. Many courts apply intervening cause analysis to decide whether to hold the defendant
criminally liable.
3. The intervening cause analysis differs depending on whether the intervening cause is
characterized as a dependent (or responsive) intervening cause or an independent
(or coincidental) intervening cause.
4. A dependent intervening cause is one that is dependent upon or responsive to the
defendant’s voluntary act- the defendant is the proximate cause unless the cause is extremely
unusual or bizarre.
5. An independent intervening cause is one that is independent of or coincidental to
the defendant’s voluntary act.- relieved of criminal liability
6. Test: Foreseeability
7. Intervening causes- dependent, independent
8. Legal Cause
Proximate cause
1. Dependent does not break causal chain
2. Because the intervening cause is foreseeable or
3. It is reasonably related to the D’s conduct
4. Independent breaks causal chain
5. Because the intervening cause is not foreseeable or
6. It is not reasonably related to D’s conduct.
MPC 2.03 (1)
1. Conduct is the cause of a result when:
2. (a) it is an antecedent but for which the result would not have occurred; and
3. (b) the relationship between the conduct and the result satisfies any additional
causal requirements imposed by the code or by the law defining the offense.
Proximate cause under the MPC 2.03 (2) (b):
1. When purposely or knowingly causing a particular result is an element of an offense, the
element is not established if the actual result is not within the purpose of the contemplation
of the actor unless:
2. (b) the actual result involves the same kind of injuyry or harm as that designated or
contemplated and is not too remote or accidental in its occurrence to have a just bearing on
the actor’s liability or on the gravity of his offense.
Concurrence
1. Two types of concurrence must be present
a. “the defendant must posses the requisite mens rea at the same moment that her
voluntary conduct (or omission) cuases the social harm (the actus reus)-
temporal concurrence
b. The mens rea must be the motivating force behind the actus reus-
motivational concurrence
Homicide
Homicide Crimes
1. Murder
a. First degree Second Degree
b. Manslaughter
2. Manslaughter
a. Voluntary manslaughter
b. Involuntary Manslaughter
c. Vehicular Manslaughter
Criminal Homicide
1. Includes the unlawful killing of a human being by another human being
2. Can be divided into two categories (1) murder (2) manslaughter
3. Murder is defined as the unlawful killing of a human being by another human being with
malice aforethought
4. Manslaughter is the unlawful killing of a human being by another human being without
malice aforethought
Definitional Issues
1. What constitutes “killing” and what constitutes “a human”
2. Under English common law, a human is “a person that was born alive.”
3. A state may criminalize the killing of a fetus as long as the law contains exceptions that
protect the mother’s constitutional rights
4. “Human being” for the purposes of homicide law as “a person who has been born and is alive.”
5. Every state includes death to include “brain death”
6. According to UDDA, “An individual who has sustained either (1) irreversible cessation or
circulatory or respiratory functions, or (20 irreversible cessation of all functions, including
the brain stem, is dead.
7. Killing a fetus is not the killing of a human being- no murder
8. Killing of a human being, someone who is born and alive
9. Changed from cessation of your heart to brain dead
10. Death has occurred when there are irreversible cessation of brain functions
Common Law murder
1. The unlawful
2. Killing
3. Of a human being
4. With malice aforethought
Proving Malice Aforethought
1. Intent to Kill
a. Knowledge that death was substantially certain to result
b. By the circumstances surrounding the killing
c. Inferred by the jury from all evidence at trial- when the defendant has used a
deadly weapon aimed at the vital part of the human body
d. Deadly weapon- in the manner it is used, is likely to cause death or serious bodily injury
2. Intent to do serious bodily harm
a. The defendant did not intend to kill the victim, only to do serious bodily harm
b. Ex. take the instance with the gun
3. Depraved heart murder
a. TheA wanton and willful disregard for human life
b. Depraved heart murder- shoots a gun into a crowded room not aiming at anyone,
or intending to shoot any particular individual
4. Felony murder
a. felony murder: if defendant involved in commission of a felony that resulted in
death, defendant can be prosecuted for murder
b. the purposeful knowing of the death of another human being
5. MPC- Except as provided elsewhere, criminal homicide constitutes murder when:
a. It is committed purposely or knowingly or
b. It is committed recklessly under circumstances
Categorizing Homicides
1. “Malice Aforethought” should be understood as a legal term of art or technical label for
the mens rea of murder.
2. In penal codes that primarily rely on the common law, an unlawful killing of a human being is
committed with “malice aforethought” when any one of four conditions are present:
a. An intent to kill;
b. An intent to commit serious bodily injury;
c. An “abandoned and malignant heart” or “depraved heart”; or
d. The felony murder rule applies
3. If the defendant intends to kill, he acts with “express” malice.
4. If malice aforethought is shown in any other way, it is considered “implied” malice
5. Manslaughter is defined under the common law as the “unlawful killing of a human being
by another human being without malice aforethought.”
6. Most common law-based jurisdictions recognize two types of manslaughter:
voluntary manslaughter and involuntary manslaughter.
7. Voluntary manslaughter is the more serious of the two is an intentional killing that would normally
qualify as second degree murder, but which is reduced to a lesser crime of voluntary
manslaughter through the application of a partial defense, such as provocation (also known as
heat of passion), imperfect self defense, or diminished capacity.
8. Involuntary manslaughter is the least serious form of criminal homicide in many
jurisdictions, carrying penalties from two to five years in prison.
9. A person many be charged with involuntary manslaughter if he or she brought about the death
of another human being through “criminal negligence,” a legal term that is defined sometimes
as gross negligence and sometimes as recklessness.
10. Some states that follow the common law recognize an additional homicide crime: vehicular
manslaughter- this has less of a punishment than involuntary manslaughter
Degrees of Murder (First Degree v. Second Degree Murder)
1. A murder charge will be raised to first degree murder upon proof that:
a. the murder involved “premeditation and deliberation,”
b. the murder was committed using a means specified in the first degree murder statute,
such as lying in wait, poison, or torture, or
c. the murder occurred during the commission or attempted commission of
an enumerated felony (namely rape, robbery, burglary, or arson).
2. Premeditation generally means that the killer must have reflected upon and thought about
the killing in advance.
3. Premeditation can occur within an instance
4. Deliberation refers to the quality of the accuser’s thought process.
5. A killing that is deliberate is one that is undertaken with a cool head.
Intentional homicides
1. First degree murder (aggravation)
2. Second-degree murder (default)
3. Voluntary manslaughter (mitigation)
4. Ask yourself: At what point can the judge take the decision away from the jury, what is the role of the
jury. When do these factors become a question of law to be decided by the judge at trial
5. First and second degree distinction- hot blood and cold blood
6. Manslaughter – hot blood, heat of passion
Doctrine of provocation
1. Categorical approach
2. Common Law’s reasonable person test
3. MPC’s EMED defense (extreme mental or emotional disturbance)
The Early Common Law’s Categorical Approach to Provocation
1. Under this approach one could claim provocation mitigation if and only if one killed in
response to:
a. An aggravated assault or battery,
b. The observance of a serious crime against a close relative
c. An illegal arrest
d. Mutual combat
e. Catching one’s wife in the act of adultery
2. “Mere words” rule: mere words are never enough to constitute legally adequate provocation
Reasonable person test- Jury must find:
1. D actually acted in the heat of passion
2. The heat of passion was provoked by an act or event that would have also provoked
a reasonable person in D’s shoes to lose control
3. D did not have sufficient time to cool off
4. A reasonable person on in D’s shoes would not have time to cool off
5. A causal connection between the provocation, passion, and the killing
The Modern “Reasonable Person” Test
1. Under the modern test for provocation in jurisdictions that have incorporated the common
law, the jury must find:
a. The defendant actually acted in a heat of passion;
b. The heat of passion was provoked by an act or event that would have also provoked
a reasonable person in the defendant’s shoes to lose self control;
c. The defendant did not have sufficient time to “cool off” between the provocative act
or event and the killing;
d. A reasonable person in the defendant’s shoes would not have had sufficient time to cool
2. In other jurisdictions, the jury is given virtually free rein to hear the facts and decide whether
the alleged provocation was adequate
Gendered subcultures of violence
1. Men are 10 times more likely to commit homicide
2. Women are more likely to be the victims of intimate homicide
3. Victims of women killers are infants and children
Who is “The Reasonable Person”?
1. Would a reasonable person ever kill in the heat of passion
2. Chapatti pan case
The Model Penal Code’s Extreme Emotional Disturbance Test
1. The MPC’s provocation doctrine is found in 210.3 (b), which permits a homicide that would
otherwise be murder to be considered manslaughter when it is committed “under the
influence of extreme mental or emotional disturbance for which there is reasonable
explanation and excuse.”
2. “The reasonableness of such explanation or excuse shall be determined from the viewpoint of a
person in the actor’s situation under the circumstances as he believes them to be.
Depraved Heart Murder
1. Depraved heart murder is usually treated as murder in the second degree
2. Malice will be applied if the defendant realized that his actions created a substantial and
unjustified risk of death and yet went ahead and committed the actions anyway.
3. Wantonness, extreme indifference to the human life
4. We are implying malice from a set of facts and circumstances
5. Substantial and unjustified risk to human life and then carried on anyway
Involuntary Manslaughter
1. To secure involuntary manslaughter a prosecutor can prove that the defendant had the
requisite mens rea for involuntary manslaughter
2. Some jurisdictions state that simple negligence is all that is required for an
involuntary manslaughter conviction
3. A second way to be convicted of involuntary manslaughter is through application of
the misdemeanor manslaughter rule
4. Requisite mens rea
5. Misdemeanor manslaughter
Felony Murder
1. The commission of a felony that ends in death
2. The defendants will be liable for murder if a death results
3. This doctrine also covers accidental death
4. Typically these underlying felonies, rape, robbery, arson, burglary, kidnapping- enumerated
5. Judges has reacted to the felony murder doctrine by trying to limit its harshness
The Res Gestae Requirement
1. The res gestea requirement has two parts: First, the felony and the homicide must be close
in time and distance
2. Second, the Res Gestae requirement demands a causal connection between the felony and
the homicide.
Sexual Offenses
MPC. 213
1. Rape
2. Gross sexual imposition
3. Deviate sexual intercourse by force or imposition
4. Corruption of minors and seduction
5. Sexual assault
6. Indecent exposure
Rape is a felony of the second degree unless:
1. In the course thereof the actor inflicts serious bodily injury upon anyone, or
2. The victim was not a voluntary social companion of the actor upon the occasion of the crime and had
not previously permitted him sexual liberties, in which case the offense is felony.
Policy questions:
1. What is the harm caused by rape?
2. What interests does rape law protect?
3. What interests should it protect?
4. Are there good reasons to treat different kinds of rape differently?
Rape victims and resistance
1. Passive resistance
2. Controlled reaction
Elements of rape (common law)
1. Sexual intercourse
2. Force or threat of force
3. Without consent
4. Marital exception
Consent
1. At common law the prosecutor needs to prove non consent
2. Most of the states have adopted the MPC and eliminated the common law non consent
What Count (or should count) as Consent?
1. Forcible rape generally requires proof that the sexual intercourse was without the consent of
the victim.
2. Under common law, rape was and continues to be described as general intent crime, suggesting
that the intent to have sexual intercourse is the only mental state required for commission of
the crime.
3. In Regina v. Morgan, the Court held that a rape defendant may be acquitted even if his belief
is completely unreasonable.
4. Morgan suggests that forcible rape should be considered a specific intent crime because the
defendant must intend more than just intercourse; in order to be convicted of rape, he must
intend to have intercourse with a partner who does not consent.
5. In the U.S. most jurisdictions recognize the mistake defense but require that the
defendant’s mistake to be honest and reasonable
MPC ,gross sexual imposition
1. A male who has sexual intercourse with a female not his wife commits a felony in the
third degree if:
2. (b) He knows that she suffers from a mental disease or defect which renders her incapable
of appraising the nature of her conduct.
Statutory Rape
1. A man can always have sex with his wife because she consented by marrying
2. A child cannot give legally consent
3. One of the three common law sexual offenses
4. Mistake of age cannot be a defense
5. Utah Alaska and New Mexico
Section 463 (A)
(2) who is mentally defective, mentally incapacitated, or physically helpless, and the person performing
the act knows or should reasonably know the other person is mentally defective, mentally
incapacitated, or physically helpless
Public policy for statutory rape
1. Pregnancy- In a 1995 study it was found that 2/3rds of teen mothers were impregnated by
adult males.
2. Exploitation- minors are not mature enough to make major decisions because they
are vulnerable to coercion and exploitation.
MPC §§ 213.0-213.2
MPC§ 213.3
Thef
Thef Offenses
1. The evolution of the law of theft in the English common law reflected the emergence of
capitalism: from being a crime against a person, theft became a crime against property,
and evolved as the concept of property itself evolved.
2. Basic theft crimes: larceny, embezzlement, and false pretenses
3. Homicide vs. Theft
4. Homicide- Mes rea, what is happening inside of the defendant’s mind
5. Mens rea is still an element for theft, but it is more so his actus reus- his bad act
6. How to characterize what he did to fit into one of these four theft crimes
Thef
1. When the U.S. was founded, American lawmakers incorporated into their penal codes the
three basic theft crimes: larceny, embezzlement, and false pretenses.
2. Eventually lawmakers incorporated all three into a single consolidated crime of theft.
Larceny
1. Larceny consists of:
a. The tresspassory “taking” and “carrying away” of property
b. From the possession of another
c. With the intent to permanently deprive the owner of it
2. The carrying away element of larceny has a technical name: asporation
3. The courts have held that asportation means the assertion of control over and some
movement of the item contrary to the possession of the owner, no matter how slight.
4. If you intend to steal a laptop in the library and pick it up but put it back down because you
are being watched, technically larceny has been committed
Larceny by Trick
1. This occurred in the case of Rex v. Pear
2. Pear hired a horse, telling the owner that he was going to Surrey with it
3. In fact, he rode the horse to Smithfield and sold the horse
4. When an employee or agent obtains custody of a thing through deceit, and takes custody with the
specific intent to permanently deprive the owner of it, she violates the owner’s (constructive)
possession, commits a trespasory taking, and has committed larceny
5. Under contemporary law, “constructive possession” and its corollary, “custody” are said to
occur in three situations:
a. When a principle or employer delivers property to an agent or employee to use,
keep, make a delivery for the principle
b. When the owner of property loses it or mislays it and someone else finds it; and
c. A property owner delivers the property to another person as part of a transaction to
be completed in the owner’s presence.
Embezzlement
1. Ex. I am the owner of a business and I hire you to keep my books and pay my creditors
2. Instead of paying my creditors all the money they are owed, you keep a portion of it for yourself
3. The common law courts could have decided that constructive possession occurs whenever a
person is owed a debt, holding, for example, that the instant I sold goods to the creditors
they receive constructive possession of the accounts payable
4. Under contemporary law, embezzlement generally is defined as:
a. The intentional conversion of
b. The property of another
c. By someone who is already in lawful possession of it (or by someone to whom it
has been “entrusted”)
5. Conversion means some act that seriously interferes with the owner’s ability to use the property
6. Larceny by trick, the defendant’s initial taking is achieved by deceit and is thus considered never
to constitute possession, whereas in embezzlement, the defendant receives lawful possession
of the property.
False Pretenses
1. Like larceny by deception only when a person gained both possession and title of
property through deception.
2. To commit a false pretense, the perpetrator must have an “intent to defraud”
3. False pretenses require that the victim was deceived
4. Under traditional law of false pretenses, the misrepresentation must pertain to some existing
fact in the past or present, and not a “mere promise as to the future,” such as the false
promise to fulfill a contract
5. The modern crime of false pretenses requires:
a. A false statement of fact
b. That causes the victim
c. To pass title to the defendant. The defendant must:
d. Know the statement is false; and
e. Thereby intend to defraud the victim.
6. The main challenge in distinguishing larceny by trick from the crime of false pretenses
is determining whether title passed to the thief
Consolidated Thef Statutes
1. Most American jurisdictions now have passed “consolidated theft statutes” which roll the
three traditional theft crimes: larceny, larceny by trick, embezzlement, and false pretences,
into a single crime of theft.
1. property
Common Law Larceny
1. Trespassory
2. Taking
3. And carrying away
4. Of personal property
5. From the possession of another
6. With the intent to deprive the owner permanently
Continuing trespass doctrine
1. Theory by which the court could find a defendant guilty for larceny if it was not concurrent
2. If the defendant after taking the property without the intent to deprive the owner
permanently later on developed that intent.
3. Your original intent was not wholly innocent, when the intent developed that original
intent must coincide
Larceny by trick
1. Focuses on the trespass element
2. Deceit
3. Distinguished from false pretenses because the victim in false pretences intends to give title
do the defendant.
Embezzlement
1. Intentional
2. Conversion of
3. The property of another
4. By someone who is already in a lawful possession
False pretenses
1. A false statement of fact that
2. Causes the victim
3. To pass title to d
4. D must:
5. Know the statement is false
6. Thereby intend to defraud the victim
Aggravated Thef
Burglary (at common law)
1. Breaking
2. Entering
3. Of a dwelling house
4. At night
5. With the intent to commit a felony therein
Robbery
Defenses
Criminal Law Defenses
1. Criminal law defenses are divided into two categories:
a. case-in-chief defenses (also known as failure of proof defenses or pima facie
case defenses)and
i. this is a defense in which the defendant attacks the prosecution’s case in chief
by arguing that the prosecutor has failed its burden of proof on at least one
essential element of the crime, such as the mens rea, the actus resus,
causation, or concurrence.
ii. All the defendant had to prove was reasonable doubt
iii. Examples: Unconsciousness
b. affirmative defenses
i. a defense in which the defense attorney admits that the government has met
its burden of proof regarding the case in chief, but argues that the defendant
nonetheless should be acquitted for some other reason
ii. Typically the defendant must convince the jury by a preponderance of the
evidence that the necessary elements of the affirmative defense exist.
iii. They are either justification defenses or excuse defenses and sometimes
legal impossibility and sometimes abandonment
iv. The defendant is saying yes I concede the prosecutor has met her burden, but I should
receive an acquittal that excuses my conduct or justifies my actions
v. The prosecution gets the standard of proof by a preponderance of the evidence
c. Justification Defense
i. When the defendant claims he did the right thing or took the most
appropriate action under the circumstances
ii. Ex. self-defense
iii. Justification defenses focus on the correctness or justness of the
defendant’s action
iv. Focuses on the defendant’s act
v. He or she did the right thing given the circumstances
d. Excuse Defenses
i. Focus on the individual defendant and whether he is blameworthy or culpable.
ii. The defendant’s act is presumed to have been wrongful, but the defendant
asks us to excuse him of some other reason
iii. Rather than focusing on the act we focus on the actor, the individual
defendant and whether or not she is blameworthy
iv. Can bring a complete acquittal
v. Ex. Insanity
2. Today, both justification and excuse defenses can lead to complete acquittals.
3. If a defendant is acquitted on the basis of an excuse, her accomplices may still be found guilty
of the crime
4. Excuses are exclusive to the actor
Questions:
1. What types of social values and bias’s shape these actions
2. Why can a wrong-doer be justified or excused for his actions
3. Focus on what the legal line is between a legitimate use of force in self-defense and vigilante
Justification Defenses
Self-Defense
1. If the defendant is successful at proving all the elements of a self-defense claim, her liability
for the crime will be eliminated and she will be acquitted.
2. Even if the defendant is not able to convince the jury that all of the elements of self-
defense were present, the defendant may be convicted of a lesser-included offense.
3. The triggering condition for a self-defense claim is the defendant’s honest and reasonable
belief that he or she is threatened with an imminent threat of unlawful force.
4. Then the defendant is justified in using force against the initial perpetrator as long as the
defendant honestly and reasonably believes that such force is both necessary to repel the
threat and proportional to the threat.
5. Self-defense includes a necessity requirement, an imminence requirement, and a
proportionality requirement.
6. The defendant must not have been the initial aggressor
7. The defendant can be acquitted as long as she reasonably believed in the need to act in
self-defense, even if her belief was mistaken.
8. Triggering condition
9. Necessity, imminence, proportionality
10. D cannot have been the initial aggressor (clean hands)
11. Imminence- immediate danger
12. Under traditional common law, the law required clean hands
13. Trials that involve a self-defense claim are very fact intensive
MPC 3.04(2)(b)(i)
1. The use of deadly force is not justifiable…if; the actor, with the purpose of causing death or serious
bodily injury provoked the use of force against himself in the same encounter.
2. This is the initial aggressor rule, defines initial aggressor under MPC
3. Whether or not Danny can claim self-defense begins with “is Danny the initial aggressor?”
4. The person claiming self-defense under MPC will retain that claim of self-defense as long as he did not
intend death or serious bodily injury and; that he was not the initial aggressor
MPC 3.04(1)
The use of force upon or toward another person is justifiable when the actor believes that such force
is immediately necessary for the purpose of protecting himself against the use of unlawful force by
such other person on the present occasion.
MPC
1. Tries to take factual questions outside of the juries hand
2. It tries to specify in detail when the defendant can use self-defense
3. MPC uses a subjective approach
4. The jury should stand in the shoes of the defendant and make a determination of
the reasonableness from the defendant’s perspective
MPC 3.09 (2)
When the actor believes that the use for force upon or toward the person of another is necessary for any of the
purposes for which such belief would establish a justification..but the actor is reckless or negligent in having such
belief of in acquiring or failing to acquire any knowledge or belief that is material to the justifiability of his use of
force, the justification afforded is unavailable on a prosecution for an offense which recklessness or negligence, as
the case may be, suffices to establish culpability.
Ny’s defense of justification
A person may use physical force upon another person when and to the extent he reasonably
believes such to be necessary to defend himself or third
On deadly force
A person may not use deadly physical force upon another person under circumstances specified in
the previous lside unless (a) he reasonably believes that such other person is using or about to use
deadly physical force..or (b) He reasonably believes that such other person is committing or
attempting to commit a kidnapping, forcible rape, forcible sodomy
Imperfect self-defense
1. D’s belief in the need to take protective action is honest but unreasonable
2. V wrongfully escalates the conflict and, instead of retreating, D responds with deadly force
3. Negates mens rea
4. If someone attacks with non deadly force and the defendant escalates with deadly force
5. Imperfect self-defense and self-defense can be raised together to mitigate a charge
Defense of others
1. Triggering condition
2. Necessity
3. Proportionality
4. Honest and reasonable belief
Defense of Habitation
1. Deadly force is not permissible simply in defense of property
2. The original common law rule permitted an occupant of the dwelling to use any force necessary,
including deadly force, if he reasonably believed the force was necessary to prevent an
imminent unlawful entry
3. In some jurisdictions that incorporate the common law, the requirements are even
more stringent
4. In these states, the occupant of a dwelling may use deadly force against an intruder only if
he reasonably believes that such force is necessary to prevent imminent unlawful entry and
that the intruder intents to commit a forcible felony or kill or cause grievous bodily injury to
the occupant or another occupant of the dwelling
Defense of Property
1. One is not allowed to use deadly force in defense of property
2. Issues between defending one’s self and defending one’s property
Necessity
1. Balance of harms
2. No legislative intent to the contrary
3. Causal connection
4. No effective legal alternative
5. Clear and imminent danger
6. Clean hands
7. The idea behind necessity as a general defense is that sometimes the greater good is served by breaking
the law than by obeying it- sometimes its better that the defendant broke the law
8. Necessity provides an affirmative defense to the actor in situations in which, from an objective
perspective, the harm caused by breaking the law is less than the harm avoided by the action.
9. MOC 3.02 (1)-Conduct that the actor believes to be necessary to avoid a harm or evil to
himself or to another is justifiable, provided that:
a. The harm or evil sought to be avoided by such conduct is greater than that sought to
be prevented by the law defining the offense charged; and
b. Neither the Code nor other law defining the offense provides exceptions or
defenses dealing with the specific situation involved; and
Excuse Defenses
Duress
1. Also known as coercion, is an affirmative defense in which the defendant claims she was threatened
by another person with physical force unless she committed a specific crime
2. The key difference between necessity and duress is that conduct under duress is a response to a
threat from a specific individual to commit the acts that constitute the crime.
3. Conduct under necessity involves a response to a dire situation
4. Duress can never be a defense to murder, at least where the defendant was the principle actor.
5. D acted in response to an imminent threat of death or serious bodily injury
6. D had a well-grounded (reasonable fear that the threat would be carried out unless
she committed a specified crime
7. D had no reasonable opportunity to escape the threatened harm.
8. Common law said that if a wife did something in front of her husband she automatically had
a defense against her husband
9. MPC 2.01(1)-It is an affirmative defense that the actor engaged in the conduct charged to constitute an
offense because he was coerced to do so by the use of, or a threat to use, unlawful
force against his person or the person
Insanity
a. M’Naghten Test
b. MPC Test
1. Excuse defenses- insanity- still have committed a crime
2. Different from justification defenses
3. The rational is that what the defendant did, although illegal, was better than the other choices
4. The test for determining competency to stand trial is whether the defendant is capable of
understanding the proceedings and assisting his counsel in presenting a defense
5. Second, the defendant may put his or her mental competency into issue by claiming that he
or she should be found not guilty by reason of insanity.
6. Section provides defense when, as a result of mental disease or defect, the actor “lacked 4.01 of MPC
substantial capacity to appreciate the criminality or wrongfulness of his conduct”
7. Putting people that are mentally ill in jail, takes away from them getting help for their mental illness, and
instead imprisoning them and letting them go, and then they commit the crime again
8. They do not have the mentally state required to commit an illegal act
9. However, regardless of the fact that insanity defense has been recognized for centuries, they
are rarely ever played in court
10. This is because juries are very adverse to the insanity defense
11. Juries when faced with the insanity defense are very reluctant to acquit someone on the
grounds of insanity.
12. Freeman approach is saying that juries should be skeptical
13. The defendant has the burden of proving all of the elements of the insanity defense
14. We are skeptical that people pleading insanity might be just faking it
15. Another source of reluctance is “what is going to happen to these people?”
M’Naghten’s trial
1. M’Naughten’s defense trial pled he was not guilty by reason of insanity
2. The court found him not guilty
3. The test says that at the time of committing the act, the party accused was laboring under such
defect of reason, such defect of mind so as not to know the nature and quality of his act, or if
he did know, that he did not know right from wrong
4. The test focuses on the cognitive motive of the defendant- if in the d’s mind he knew
the difference between right and wrong
5. We see in the freeman court that this test has some obvious limitations
6. It does not give the juries an opportunity to recognize that some mentally ill people have the ability
to know right from wrong but they still do not have the ability to control their actions
7. Courts found that when applying this strict right and wrong test, when expert witnesses
would come to call on the d’s, psychiatrists were committing perjury, because they could only
use the right and wrong test
Irresistible impulse test
1. Grounds for acquittal
2. When d is found to have been driven by an irresistible impulse to commit his offense
Durham or “product” test
1. D is not criminally responsible if his unlawful act was a product of mental disease or
mental defect.
2. This was revolutionary because it got rid of the “right wrong” dichotomy
3. It allowed the jury, expert witnesses, to talk about all the shades of gray between black
and white
4. One of the shortcomings was that essentially the jury’s role was replaced by expert testimony
5. Their judgment was substituted by the experts that testified at trial
BOP on defendant
1. Mental disease or defect
2. Unable to tell right from wrong
3. insane at the time he committed the act
Diminished Capacity
1. Diminished capacity is usually with the use of evidence of mental illness
2. One variant of the diminished capacity defense is called the “mens rea variant” of defense
3. Under this variant, a defendant who can show that he was suffering from a mental disease or
defect not amounting to insanity at the time he committed his crime and therefore lacked
the mental state required for commission of the charged offense will be found not guilty of
the charged offense
4. Another variant is the “partial responsibility variant”
5. Under this variant, the defendant argues that because of some mental disease or defect not
amounting to insanity, he is less blameworthy than others charged with the same offense.
6. This is NOT the insanity defense
7. The defendant who can’t prove that they were insane at the time that they committed the
unlawful act can still invoke evidence that they were suffering from some mental illness
that could convict them under a lesser crime
8. Case in chief defense
9. Even though he was not insane, he was still suffering from some mental illness of having
the mens rea necessary to fulfill a specific element of the insanity defense
10. Twinky defense- Dan White
11. Dan White argued that his mental disease was as a result of his high blood sugar that caused
him to respond to his firing in such an outburst, while he wasn’t insane he was suffering from
some mental health
12. The mens rea variant where a full acquittal is still possible is not an affirmative defense
Infancy
Intoxication
1. The defense of intoxication is traditionally understood as comprising two distinct defenses:
a. Voluntary intoxication
b. Involuntary intoxication
2. At C/L the defendant can argue voluntary intoxication but it must be determined whether she
is charged with a specific intent crime or a general intent crime.
3. If the charged offense is a general intent crime, then the defendant will not be permitted to
introduce evidence of her intoxication
4. If the charged offense is a intent crime, then defendant to presentspecific will be allowed
evidence of her voluntary intoxication.
5. The defendant must show that because of his intoxicated condition, he did not have the
specific intent required for commission of the crime.
6. In People v. Register, the court refused to allow a defendant charged with depraved heart
murder to present evidence of voluntary intoxication, rejecting his claim that because of his
intoxicated condition he was not aware of and did not consciously disregard a substantial
and unjustifiable risk.
7. In most jurisdictions, involuntary intoxication can be the basis for temporary insanity claim
8. Involuntary intoxication is only a defense if it caused the defendant to become
temporarily insane
9. For voluntary- never it is a defense to general intent crimes, for specific intent, it can
sometimes be a defense as it would go to prove that the prosecution cannot meet the mens rea
element of the crime
10. Under the test- intoxication is an AFFIRMATIVE defense, it can only be used as a MPC not CASE
IN CHIEF defense
11. It can only be used to negate a mens rea element of the offense
12. For involuntary intoxication- jurisdiction that recognize involuntary allow it to be applied to
both general and specific.
Recklessly
1. Substaial risk
2. Unjustifiable risk
3. Awareness
4. Gross deviation
5. Law-abiding person in the actor’s situation
Negligently
1. Substantial risk
2. Unjustifiable risk
3. D should have been aware
4. Gross deviation
5. Reasonable person in the actor’s situation
Attempt
Thought-act continuum
1. The state cant punish mere fantasy, mere thought,
2. Why are we saying with intent crimes we don’t need to get to the end of the spectrum which
is the completed social harm
3. Why should we let the defendant complete the bad act in order to punish him?
Common law attempt
1. Intent to commit a crime
2. The execution of an overt act in furtherance of the intention
3. Failure to consummate the crime
MPC
1. The punishment for intent crimes is on par with the penalty for the offense
2. The MCP justifies this by saying that a criminal who acts with bad thoughts should be
punished the same
3. An unsuccessful criminal is just as dangerous as a successful one
Attempts
1. Most jurisdictions classify an attempt to commit a felony as a felony and an attempt to commit
a misdemeanor as a misdemeanor
2. There is no single common law test for determining whether and when a defendant’s acts
go beyond mere preparation and become sufficient for an attempt
3. The MPC’s provision on attempt, in contrast requires a “substantial step” towards
the culmination of the commission of the targeted offense
4. The MPC focuses on what the defendant has done, rather than what remains to be done, and focuses
on the defendant’s acts or omissions are strongly corroborative of his criminal purpose
5. The of an attempt is the specific intent to commit the targeted offensemens rea
a. The law of attempts recognizes two defenses specific to attempts:
b. The defense of impossibility and the defense of abandonment
MPC’s substantial step test
1. a person is guilty of an attempt to commit a crime if he purposely does or omits to do
anything which constitutes a substantial step in the course of conduct planned to culminate in
his commission of the crime
2. conduct is not a substantial step unless it is strongly corroborative of the actor’s
criminal purpose
MPC’s approach to abandonment or renunciation
1. d who completely and voluntarily abandons his criminal purpose is not guilty
2. but, abandonment is not complete and voluntary if:
3. it is motivated by unanticipated difficulties or resistance or circumstances that increase
the probability of detection or apprehension or
4. if D has decided to postpone his endeavors until another time or substitute another victim
Common law attempt
1. intent to commit a crime
2. the execution of an overt act in furtherance of the intention
3. failure to consummate the crime
Actus reus requirement
1. equivocality test
2. proximity test
3. MPC’s substantial step test- (focuses on what the D has already done)
Mens Rea Requirement:
1. Harris: attempt is a specific intent crime- P has to prove that the D intended the result
that would come from completing the target offense
2. HInkhouse: Legal shortcuts to proving intent to kill murder
The Defense of Impossibility
Common law impossibility
1. Pure legal impossibility- D intended act is not a crime
2. Hybrid legal impossibly- mistaken about the legal status of the crime/target offense
3. Factual impossibility- includes instances when the D is mistaken about a fact relative to
the crime- “if the defendant’s belief about the relevant fact had been correct, would he
have completed the crime?”
4. Inherent factual impossibility- this is a defense to attempt- this is when the D tries to commit
a crime but tries using means that are doomed to fail, there is no way that the means the D
tries to use would ever be successful.- Ex. voodoo doll
MPC
1. Eliminates the impossibility defense
2. Many courts have adopted the MPC approach
3.
Accomplice Liability
Accomplice Liability (Complicity)
1. One who intentionally assists another in the commission of a crime can be convicted of
that offense as an accomplice
2. At common law they are divided between principals and accessories
3. An accessory could not be tried before the principal in the first degree and an accessory could not
be convicted unless the principal in the first degree was convicted first
4. Principle in the first degree was the person who actually committed the acts constituting
the offense or used an “innocent instrumentality” to commit the crime
5. The principle in the second degree was the person who intentionally assisted the commission
of the crime in the presence of the principal in the first degree
6. An accessory before the fact was a person who intentionally assisted in the commission of
the crime but who was not present when the crime was being committed. Ex. someone who
buys guns for a robbery but does not attend a robbery
7. An assessor afer the fact was a person who helped the principle in the first degree and his or her
accomplices avoid arrest, trial or conviction- ex someone who intentionally assists in the escape
of the crime. (trial- ex. obstructive of justice type crimes)
8. An accomplice must intentionally assist the principal in the first degree in committing a crime
9. We don’t punish sons and daughters of prisoners when their parents die, we believe in
individual accountability for bad actions
10. There are some situations where a person can be held liable for another person’s action
11. Complicity- when one intentionally assists another in the commission of a crime, then
that person can be held accountable as an accomplice
12. MPC 2.06(1) A person is guilty of an offense if it is committed by his own conduct or by
13. MPC 2.06(2) a person is legally accountable for the conduct of another person when: acting
with the kind of culpability
14. Complicity is not a crime
Merger
1. Principal in the first degree
2. Principal in the second degree
3. Accomplice before the fact
4. Does NOT apply accomplices after the fact
What types of acts are necessary and sufficient to makes someone an accomplice
1. Mere presence is not enough to satisfy the actus reus
2. They must assist the principal and any assistance
3. Any assistance besides mere presence is not enough
The mens rea of accomplice liability
The accomplice must:
1. Intend to assist, and
2. Intend that P1 commit the target offense
*or at least intend that P1 have the mental state required for commission of that offense
Hypo: Smoking weed at a Bob Marley concert
