Criminal Law Outline – Caldwell.pdf | LAW 622

Criminal Law Outline – Caldwell

I. General Notes, Closing Argument, Jury Selection, &

Types of Crimes

Final Exam Notes

- The most significant decision in criminal law is what to file in the case (i.e. what charge to bring)

- He is going to ask on some MC questions of whether judge should have instructed jury on

something based on the facts

- Exams: Identify the issue, give the black letter rule, apply the facts, reach your conclusion

- Don't mess with misdemeanors if there are felonies (i.e. forget assault and battery)

- Don't need to talk about other crimes if they aren't relevant

- For reasonable doubt, make sure to discuss something that is unreasonable

- Don't forget to talk about causation!! (i.e. intervening acts, foreseeability, etc.)

- 50% of the grade is identifying the issues (probably similar to other classes)

- Final Exam format:

oTwo essay question. One is a standard question, and one is either a prosecutor argument

or defense argument. Two hours to complete them. (3000 word limit, 1500 per, but

doesn't have to be the same word count for each, can be 2000 and 1000 if you want)

oThen also a multiple-choice section

Elements of a Closing Argument (essentially is an IRAC approach dressed up)

1. Start with a grab (need to hook them) so that the jury is interested and doesn't stop listening

a. Straight and to the point

b. Usually means going back to the theory of the case (in one sentence why we win)

i. Take theory of case and the theme of the case and meld it together for "your

grab"

2. Talk about the critical pieces of law (because the jurors don't get it when they judge reads the law

to them)

a. If you give them the exact definition of the legal elements, are they going to get it? No. Take

the incomprehensible law and make it so they understand it.

b. Challenge is coming up with some way to explain reasonable doubt that makes sense

(important for exam)

i. Prewrite what reasonable doubt isn’t for prosecutor’s argument and what it is for

defense argument so that it is ready for midterm and final

ii. Defense argument: If you find that there are two reasonable explanations for a

particular piece of evidence, one pointing to guilt and one pointing to innocence, as a

matter of law, you must adapt the interpretation that points to the defendant’s

innocence

iii. Defense argument or prosecutor: If you determine a witness has been mistaken in one

part of their testimony, you are free to disregard the rest of what that witness said

2. Integrate the critical pieces of evidence (facts) into the law (make your argument)

a. Propose a list of critical facts that are going to support our position. Write out a list of facts

to give to the jury.

b. Apply the facts to each element of the law

c. If jury has this written down for them and they listened to your argument, they will

remember 80% of information (if just an oral argument, only about 15%)

2. If there are weaknesses in your argument, then you need to point them out and mitigate them

a. If you have a fact that goes against your position, you need to encounter that difficult fact

and mitigate its impact (prick the boil)

b. Goes towards credibility. Jury won't think you are biased. Credibility of lawyer is very

important

3. Have a good type conclusion and tell the jurors what you want them to do (should be about two

sentences)

Jury Selection

Ask open-ended general questions to get the most information out of a potential juror

Disclosure begets disclosure: tell the jurors a story about yourself or someone close to you, and

you use it to get jurors to open up

Ask the entire group of potential jurors a question instead of just one juror

Notes

Battery and assault are misdemeanors (assault and battery are two separate charges)

Misdemeanor: the potential punishment is less than a year

Felony: the potential punishment is greater than a year

Wobbler: could be filed as a misdemeanor or a felony (for example: up to a year in jail OR 2

years in prison)

If sentenced to less than a year, you go to county jail

If sentenced to more than a year, you go to prison

II. Homicide

Work down the middle column in your analysis

First Degree Murder Second Degree Murder Manslaughter

A. Premeditation A. Specific Intent to Kill

B. Specific Intent to cause

great bodily injury (GBI)

C. Willful and Wanton

D. Felony Murder

1. Voluntary Manslaughter

2. Involuntary Manslaughter

When discussing murder

What is the requisite mental element?

When we have a body, the first question we will ask is was there a specific intent to kill?

oNext, was it premeditated?

Did this person reflect on the consequences of taking a life of another? (he wants this

parroted back to him on an exam)

Usually, if prosecutor can go for second-degree murder, then he will. However, judge may instruct

on voluntary manslaughter or involuntary manslaughter in addition to second-degree murder,

depending on the facts.

Side note: Don't need specific intent for willful and wanton, or involuntary manslaughter

If you are going to discuss felony murder, make sure first to discuss all the other parts of the

middle column

Intent

How do you prove intent? Circumstantial evidence.

Second Degree Murder (Murder 2)

1) Specific intent to kill, or

a) Can lead to first degree murder

b) Marshall the surrounding circumstances

2) Specific intent to cause great bodily injury

a) This cannot lead to first degree murder

b) Examples:

i) Loss of consciousness

ii) Broken bone

iii) Wound requiring extensive suturing

iv) Protracted loss of function of bodily organ

v) Etc.

First Degree Murder (Murder 1)

1) Premeditation

a) Premeditation requires reflection. Period.

i) Cool, calm, reflection

ii) Was there a cooling off period?

b) Just because you have time for reflection, doesn't mean you did reflect.

c) It is not the amount of time; it is the fact that you did reflect.

d) Was this a calculated kill or a frenzied act?

Voluntary Manslaughter

1) Must be a death that would qualify for second degree murder (either S.I. to kill or S.I. to GBI)

2) Must be in the throes of passion and overriding emotion so that the person couldn’t think clearly

(subjective)

a) Fear, betrayal, rage or severe anger, etc.

b) Generally, mere words cannot put you in the throes of passion

i) Using opprobrious words, i.e. calling someone an asshole, etc. are never sufficient

ii) Informational words could be sufficient, i.e. telling someone you slept with their wife could

be considered sufficient because you actually did the act

c) Must be immediate passion and overriding emotion not imminent

3) Would the average or reasonable person under the same circumstances have lost it or be in the

throes?

4) Considerations

a) It is a recognition of the human condition…such extreme emotional state that it should be

downgraded from murder 2

b) Premeditation and voluntary manslaughter are mutually exclusive

c) Typically, the prosecutor has the burden of proof to argue it wasn't voluntary manslaughter

d) After the judge hears all the facts, they will decide whether to instruct the jury on voluntary

manslaughter

i) If Judge does instruct, this generally leads to the jury convicting on voluntary manslaughter

Willful and Wanton

Is more than recklessness. It is recklessness plus an acute (high degree of) awareness of the potential for

death, (prof adds this): together with a don't care attitude or with a hint of viciousness.

Key word: potential: i.e. could it happen? Not about probability that someone could die.

Their intent of why they did something could matter in deciding willful and wanton

oi.e. social utility?

If there was social utility, then involuntary manslaughter

Judge will likely instruct on both murder 2 and involuntary manslaughter

Involuntary Manslaughter

1) The act is intentional

2) Death is unintentional

3) Defendant engaged in criminally negligent conduct

a) Recklessness requires a gross deviation plus an actual knowledge for potential for grave injury or

the average reasonable person would have been aware for the potential for grave personal

injury

Felony Murder

A killing that occurs in the perpetration of an:

1) Inherently dangerous felony that is

a) Inherently dangerous is viewed in the abstract, means that the danger is there every single time

the felony is committed

i) Not about the facts, about the definition of the crime

ii) Acute awareness for the potential for death

iii) Inherently dangerous felonies:

(1) Yes: Burglary, rape, robbery, kidnaping, arson

(2) No: Driving recklessly, drunk driving, battery, assault

2) Independent of life-threatening force, and

a) If the felon goes into the underlying felony with that life-threatening state of mind, then it is not

felony murder

3) It must be in perpetration of the felony

a) Did the homicide and the felony occur at the same location?

i) If not at same location, how far apart did they occur?

b) How much time passed between the underlying felony and the homicide?

c) Did the culprits still have the fruits of the felony? I.e. Robbery: did they still have the goods

d) Were the authorities in close pursuit?

i) If they are, it is still in the course of the felony until you reach safe refuge

e) Still in perpetration if still on premises

4) Considerations:

a) Majority rule is you are only liable for felony murder if you were engaged in the killing act

b) It is another way to get to first-degree murder

i) It is very easy to get a first-degree murder conviction from felony murder

c) Trying to deter people who commit inherently dangerous felonies from leaving bodies behind

d) Technically If you have all three elements of felony murder, it is only second-degree murder

e) If the legislature has set forth crimes that are particularly heinous, those are enumerated

felonies, and if the underlying felony is an enumerated felony, then it will be first-degree murder

f) For this class, we are making up a legislature for our jurisdiction. Enumerated felonies will

include: Rape, Arson, Kidnapping, Burglary, Robbery

g) In the real world, realistically if you can prove the three elements of felony murder, it is likely

going to be bumped up to first-degree murder. For this class it must be one of the five

enumerated felonies

h) You don't have to show SI to kill, so it is very easy to prove felony murder and thus get to first-

degree murder

i) For exam do a felony murder analysis for the three elements first, and then decide whether it is

an enumerated felony

Hypos

1) Shaking baby because it is crying and baby dies

a) Specific intent to kill? No.

b) Specific intent GBI?

i) No. His intent may not have been to kill the baby, but just to stop it from crying.

2) Pushing old man

a) Specific intent to kill? No.

b) Specific intent GBI? Maybe.

3) Alfred had a girlfriend and a child who was 3. Relationship had completely gone south…constantly

bickering about custody of the child…really mean relationship had developed between him and his

girlfriend. Goes to girlfriend’s house and she comes out with 3-year-old. They get into a verbal

altercation and they both start tugging on the three-year-old. Alfred rests the child away from his

girlfriend, and at the same time stabbed his girlfriend and killed her.

a) Specific intent to kill? Yes.

b) Premeditation?

i) No. Was in the heat of the moment.

4) Man is stabbing his wife and is then interrupted by his kids. He moved his kids to another room and

then went back and continued to stab his wife.

a) Judge refused a jury instruction of voluntary manslaughter and he was convicted of murder

b) Probably could have warranted a jury instruction of voluntary manslaughter if he didn’t continue

to stab his wife after he was interrupted by his kids

5) Alice learns that her husband is having an adulterous relationship with Lorena. A reasonable person

would have been outraged by the news, but Alice was not outraged. However, because she hates

Lorena, Alice used the news as an opportunity to kill her.

a) No jury instruction of voluntary manslaughter. She is not in throes of passion, or overcome by

emotion

6) Bob tells Randy that he has been having an adulterous relationship with Randy’s wife. Although

Randy believes Bob, it was not true. There was no such adulterous relationship. In a fit of anger

resulting from his communication, however, Randy kills Bob.

a) Yes, can instruct jury of voluntary manslaughter, because it doesn’t matter the fact wasn’t true

7) Defendant, a man with only one leg, was standing next to a park bench on crutches. The victim, just

prior to the killing, maliciously knocked one of defendant’s crutches out from under him. In a fit of

responsive anger, defendant stabbed the victim with a knife, killing him.

a) Specific intent to kill? Yes.

b) Premeditation? No.

c) Voluntary manslaughter? Yes, in throes of passion (anger, rage)

d) We can consider the physical characteristics in putting ourselves in the position of the defendant

8) Bedder, who was sexually impotent, tried in vain to have sex with a prostitute. She jeered at him and

attempted to get away. Defendant tried to prevent her from leaving, but she slapped him in the face

and punched him in the stomach. At this point, the defendant took out a knife and stabbed the

prostitute to death.

a) Mere words are not enough to elicit throes of passion, unless they are informational. Professor

doesn’t think that is the case here, therefore likely murder not voluntary manslaughter

9) Oscar Trejo was quarreling with his cousin Ricardo Acosta. Both were intoxicated. After some friendly

insults, Rosales insulted Trejo’s mother by referring to her as a prostitute. Trejo broke a beer bottle

on the sidewalk and threatened to “stick” Rosales unless Rosales stopped making such insults. When

Rosales again called Trejo the “son of a whore mother,” Trejo stabbed Rosales in the neck with the

broken bottle. Rosales bled to death before he reached a hospital. The defense attorney presented

expert evidence that an accusation of prostitution by one’s own mother in Trejo’s Mexican culture

was likely to result in violence.

a) Should you factor in cultural norms? No.

b) No voluntary manslaughter instruction for the jury

10) During the summer of 2005, a former Klu Klux Klan member was convicted of killing three civil rights

workers in 1964. The evidence showed that the victims were brutally beaten and shot, and that their

bodies were buried in an earthen dam.

a) After such a long time it is hard to prove premeditation because of lack of evidence, therefore

prosecution used manslaughter

11) Husband has been abusive to his wife for a long time. He goes to a tavern and drinks a lot, and his

football team loses. He comes home, and typically when he comes home and his team has lost, he

knocks his wife around. He falls asleep on the couch. Patter is after he wakes up, he continues to

beat on his wife. Later, she douses her husband in gasoline and lights him on fire while he is still

sleeping on the couch.

a) Specific intent to kill? Yes.

b) Premeditation? Yes. She was able to reflect on the consequences because he was asleep when

she did it.

c) Was she in the throes of passion when she killed her husband?

i) Hard to say you are in the throes of passion when you were able to premeditate because the

two are mutually exclusive

12) Michelle Carter case: She convinced the guy over text message to kill himself. He was sitting in his

garage with his car on, he chickened out, and she then texted him to get back in there and kill

himself, and he did.

a) Specific intent to kill? Might be tough to prove, and without intent, there is no premeditation.

b) Voluntary manslaughter? No, because no throes of passion.

c) Willful and wanton? Yes. They filed involuntary manslaughter, and she was convicted.

13) Guy fires a gun at a moving passenger train. He has no intention to kill anyone, but by shooting at

the passenger train moving by, he hits someone, and they died.

a) Willful and wanton? Yes. Murder 2.

14) Driving really fast on Malibu Canyon, and decides that the person in front of them is going way to

slow, so they decide to pass the car on a blind turn across a double yellow line. They hit the car going

the other direction and kill the driver in the other car.

a) Willful and wanton? Depends if person had intent that had social utility. Could be said there is

social utility, and therefore it is involuntary manslaughter.

15) Difference between 13 and 14?

a) The guy shooting the train shows a lot more intent then someone trying to pass a slow car

recklessly

b) It is a huge decision to decide whether it is willful and wanton and thus murder 2 or if it is

involuntary manslaughter.

i) Important for exam and the bar

16) Russian roulette

a) Specific intent to kill? No.

b) Specific intent to GBI? Maybe.

c) Voluntary manslaughter? No.

d) Willful and wanton? Yes and no social utility. Thus murder 2.

17) Shoots to scare and hits the girlfriend, but not intending to hit her.

a) S.I. to kill? No.

b) S.I. to GBI? No.

c) Voluntary manslaughter? Would discuss it, but probably conclude no.

d) Willful and wanton? Yes. Make the case for murder 2, but judge will also instruct on involuntary

manslaughter

18) Three teenage boys playing Russian Roulette, insert single bullet in a gun that can hold six bullets.

One boy spins the cylinder, puts the gun to another boy’s head, and pulls the trigger, kills the boy.

The boys never intended to kill their friend and are horrified.

a) Prosecution: The two boys acted with extreme indifference to the value of human life by playing

Russian Roulette. They would have known that there was a 1 in 6 chance of killing their friend,

and they took the risk anyway. Their actions were beyond reckless.

b) Defense: These boys had no intent to kill their friend, and it is not like they forced their friend to

play this game. He willfully participated with them knowing the risks. It would be much more

appropriate to charge these boys with involuntary manslaughter, since their behavior could be

classified as gross negligence.

19) Burkman waved the gun in front of her face and yelled at her that she should kill herself. Intending to

scare Burns, Burkman aimed the gun at the pillow behind her and fired. The bullet accidentally

struck and killed her. Is Burkman guilty of murder?

a) Specific intent to kill? No.

b) Involuntary manslaughter? Yes. Acted with gross negligence.

c) Important to note that jury may not believe Burkman did not have a specific intent to kill, and

therefore they could find him guilty of murder 2 or voluntary manslaughter.

d) May be appropriate for judge to instruct on all three: murder 2, voluntary manslaughter, and

involuntary manslaughter

20) Two guys arguing, threaten to attack each other with weapons, but didn’t. Rogers banged on

window of Johnsons truck and broke off the radio antenna. Johnson shifted into reverse and then

drove towards Rogers intending to scare him. Just as he swerved to the right, at the same moment,

Rogers jumped in the same direction and was hit by the truck and killed.

a) Willful and wanton? Need the awareness for the potential for death.

b) Reckless? Yes. Social utility? No.

c) Prosecution filed involuntary manslaughter

21) Cocaine addicted mom neglects her twins, and they die from starvation.

a) Specific intent to kill? No.

b) Specific intent to cause GBI? No.

c) Voluntary manslaughter? No.

d) Willful and wanton? Tough to argue.

e) Involuntary manslaughter? Yes.

22) Guy blows a red light while evading a cop, hits another car and kills an 11-year old girl.

a) Specific intent to kill? No.

b) Specific intent to GBI? No.

c) Voluntary manslaughter? No.

d) Willful and wanton? Yes. Murder 2.

23) High speed chase with police, speeds through red light between 93 and 100 miles per hour, hits

another car and kills them.

a) Willful and wanton? Yes. Murder 2.

24) Covers top of crib with collapsed dog crate and cardboard to prevent the child from standing so that

kid will go to sleep. Kid trying to stand up, gets caught between the crate and the collapsed dog crate

and the kid chokes and dies.

a) Specific intent to kill? No.

b) Specific intent to GBI? No.\

c) Voluntary manslaughter? No.

d) Willful and wanton? Maybe. Social utility? Prof says yes.

e) Prof says he would file involuntary manslaughter.

25) Woman lives in a high-rise, owns vicious, dangerous dogs, and leaves them unattended in the

hallway. They have history of attacking people. They attack someone in the hallway and kill

someone.

a) Willful and wanton? Yes. Don’t care attitude with a hint of viciousness.

b) Prof says he would file murder 2. Jury convicted on murder 2.

26) Defendant enters the house at night with the intent to steal. Owner wakes up, struggles ensues,

owner falls, hits his head and dies.

a) Felony murder? Yes. Was inherently dangerous (burglary and robbery) and independent of life-

threatening force.

b) Normal analysis:

i) Specific intent to kill? No.

ii) Specific intent to GBI? Maybe.

iii) Voluntary manslaughter? Probably not.

iv) Willful and wanton? Yes.

27) Defendant enters the home at night with the intent to attack the owner, struggle ensues, and the

defendant ends up killing the owner.

a) Felony murder? No. It was an inherently dangerous felony, but it was not independent of life-

threatening force since he had the intent to attack.

28) Broke into house to steal marijuana plants, rapes 80-year-old woman in apartment. Woman dies

from chronic obstructive pulmonary disease weeks later.

a) Specific intent to kill? No.

b) Specific intent to GBI? Yes.

c) Voluntary manslaughter? No.

d) Willful and wanton? Yes.

e) Can file felony murder (rape is an inherently dangerous felony) and murder 2.

f) You would likely want to file felony murder because otherwise you can’t get to murder 1 on

these facts, and if you filed willful and wanton., the judge could instruct the jury on involuntary

manslaughter.

29) Sells heroin to someone and it is a hotshot, and the person dies.

a) Felony murder? No. Not an inherently dangerous felony.

30) Guy rapes, assault, and eventually kills escort. He says the rape was complete by the time of the

murder, and therefore you can’t slap him with a felony murder conviction.

a) File rape, and felony murder because it would be easier to get to murder 1 then trying to prove

premeditation.

31) Jewellery store robbery, owners taken as hostages, chases ensues, and one of the owners is killed by

one of the pursuing police (accidentally).

a) Taking a person hostage is inherently dangerous, and it was independent of life-threatening

force, and was in the perpetration of a felony

b) However, the majority rule is you are only liable for felony murder if you were engaged in the

killing act

32) People v. Portillo (pg. 416): Portillo was a petty officer in the United States Navy stationed aboard the

U.S.S. Ogden in San Diego. Due to the stress level aboard the ship, Portillo often talked with other

seamen and petty officers about picking up a prostitute, raping her and then killing her. He said that

when he killed a prostitute, he would put her body in a seabag, which is a round, green duffel bag

issued to Navy personnel. He later committed a rape and murder of a prostitute in this exact nature,

putting her body in a green duffel bag.

a) The court did not find that there was premeditation.

i) I disagree, **and the prof agreed with me**

III. Accomplice

Accomplice Liability

The accessory is a person who has:

1) Specific intent to aid and abet (facilitate and/or encourage) the commission or attempted

commission of a crime and

2) The person actually aids or abets (facilitates or encourages) and

3) He or she has knowledge of the unlawful purpose of the perpetrator

4) Considerations

a) Failure to act when there is requirement to act can be sufficient to act as encouragement, and

thus make one liable

b) If we can prove this, accomplice is just as culpable (i.e. if act was murder 1, they will be convicted

with murder 1)

c) Only applies under felonies

Accessory After the Fact

If somebody knows the principal is under the gun and they hide the principal or help the principal after

the fact (after the crime)

Principal is the person who was the direct person involved in the crime

This relates to the cover up of the crime after the act

If you are an accessory, you are just as culpable as the principal

Hypos

1) Girlfriend texts Michael saying her dad is beating her. Michael asked for a ride from his friend James

to drive him to a pawn shop so "he could buy a gun from the pawn shop to get even with the old

man.” Michael told the pawn shop owner "I need a gun I can hide in my pocket," and the owner sold

him the gun. Michael with the gun concealed in his pocket, got back in the car and told James to

drive him to his girlfriend’s house. When they got there, Michael ran up to the house and James

stayed in the car but did not drive away. Girlfriend ran up and said, "thank god you are here, my

father is in the backyard" and Michael ran out into the backyard and shot and killed her father. What

can we charge?

a) Specific intent to kill? Yes.

b) Premeditation? Yes.

i) Could convict Michael on first-degree murder

c) Accomplice liability?

i) James did aid and abet, and it seems that he had knowledge.

ii) Pawnshop owner? No, he didn’t know Michael was going to shoot and kill someone.

(1) Is mere knowledge that one is about to use that product or service for a criminal act

sufficient if one in fact provides the service or product? No. Because it is not a felony.

iii) Girlfriend? No. Absence of knowledge of the gun.

2) R.C. Ross seduced Annie Skelton, a sister of the Skelton brothers (Robert, John, James and Walter),

as well as of Judge Tally’s wife. The Skeltons and Tally learned about the seduction from letters

written by Ross to Annie Skelton. The Skelton brothers immediately decided to kill Ross. In an effort

to escape, Ross left town in a hack headed for Stevenson (18 miles away), intending to catch a train

to Chattanooga. The Skelton brothers set off in pursuit of Ross and eventually succeeded in killing

him. When the Skelton brothers left, Judge Tally knew that they intended to kill Ross. Under which of

the following factual scenarios is Judge Tally guilty of complicity?

a) He silently wishes and hopes that the Skelton brothers kill Ross, but does nothing to help

i) Accomplice liability? No.

b) He tells other friends that he hopes the Skelton brothers kill Ross.

i) Accomplice liability? No.

c) He paid for the rental of a horse on which one of the Skelton brothers rode.

i) Accomplice liability? Yes.

d) He spent several hours at the telegraph office in order to prevent others from sending a

telegraph to Stevenson to warn Ross.

i) Accomplice liability? Yes.

e) He prevented Ross’s brother from sending a telegram warning Ross that the Skelton brothers

were pursuing him.

i) Accomplice liability? Yes.

f) He sent a telegram to friends in Stevenson asking them to make sure that Ross was not warned

that the Skeletons were in pursuit.

i) Accomplice Liability? Yes.

3) Defendant’s boyfriend brutally shook her 3-month old son for three minutes thereby causing the

boy’s death. During the shaking, defendant stood by doing nothing.

a) Accomplice to manslaughter? Yes. She had a legal duty to act because she is a parent/guardian.

4) You are an assistant district attorney, and police officers have reported to you that a victim, Jane Roe

was raped in a pool hall by two men: John Smith and Joe Doe. While the rapes were taking place,

three other individuals were present: a bartender, Jerry Ames, and two individuals drinking at the

bar, Bob Baker and Cathy Cox. Ames watched the rapes take place and yelled at the rapists to “stop,”

but when they did not listen to him, he did absolutely nothing to stop them from committing these

crimes nor did he make any attempt to call the police. Baker watched the rapes and yelled at Smith

and Doe to encourage them to commit the assaults. Cox watched the rapes and said nothing. Should

Ames, Baker and Cox be charged as accomplices in the rape of Roe?

a) Is Ames liable? Not likely. He had knowledge, but he did not aid and abet (facilitate or

encourage). Did he have a duty/requirement to act? Not necessarily.

b) Is Baker liable? Yes. He had knowledge, and he encouraged the crime.

c) Is Cox liable? No. He had knowledge, but he did not aid and abet (facilitate or encourage)

IV. Causation & Transferred Intent

Causation for Liability in General

Did the intervening act substantially contribute to the resulting injury, and was it foreseeable?

If it did substantially contribute and it was foreseeable then liable

oNot foreseeable, then not liable

Sometimes there is more than one intervening act

oIdentifying the intervening act(s) is essential

Need to figure out what the original act was, the intervening act, and what the resulting injury was

oOriginal Act?

 E.g. Street Racing

oIntervening Act?

E.g. Swerve into oncoming traffic to pass the other racer

oWhat is the resulting injury?

E.g. Person who swerved hit truck in on coming traffic and the truck driver died

Hypos

1) Drag racing, defendant decides this is crazy and starts to slowdown, the decedent keeps going and

dies.

a) Intervening act? Both the defendant slowing down and the decedent continuing to go.

i) Focus on the decedent continuing to go as the intervening act.

b) Foreseeability? Prof says no.

2) People v. Acosta (pg. 166): High speed chase between defendant and police, with multiple

helicopters following. One helicopter makes a wrong move in violation of FAA rules and crashes into

another helicopter killing three of the occupants in the helicopter. Defendant is charged with second

degree murder for those three deaths and was convicted.

a) Intervening act? The helicopter making a wrong move in violation of FAA.

b) Foreseeability? Court ruled there was foreseeability.

i) This seems ridiculous (in my opinion). Professor agrees.

c) **PROF SAID, “WOULDN’T THIS MAKE A GREAT FINAL EXAM QUESTION. READ AGAIN,

PRACTICE RESPONSE**

3) 80-year old woman is robust, does her own shopping and does everything else on her own. Guy

breaks in, burglarizing her house, takes her jewelry, and beats her up and rapes her. The woman

loses the will to live and goes into an assisted living facility. 6 weeks after the attack she chokes on

some food because she cannot swallow food due to psychological distress, and she suffocates and

dies.

a) First off, file rape, robbery burglary

b) Original act? Burglary, robbery, rape

c) Intervening act? Choking on her food

d) Resulting injury? Woman dies.

e) Liability? I would argue no, but supposedly prof thinks there is.

4) He shot victim intending to kill him. The coroner later determined that the wound was mortal, and

the victim would eventually have died from the gunshot wound, however prior to the victim dying, a

third-party came along and shot the victim who then immediately died. The coroner determined

that the third-party shot was the sole cause of the victim’s death.

a) Original act? Shooting the victim.

b) Intervening act? Third-party shooting the victim

c) Resulting injury? Death

d) Did the intervening act substantially contribute to the death? Yes.

e) Was it foreseeable? No.

i) Off the hook for murder, but can be charged with other offenses such as attempted murder

5) Defendant shot the victim intending to kill him. The coroner later determined that the wound was

mortal, however prior to the victim dying by his wound, the victim cut his own throat and died

immediately.

a) Original act? Defendant shooting the victim.

b) Intervening act? Victim cutting his own throat.

c) Resulting injury? Death.

d) Did it substantially contribute? Yes.

e) Foreseeable? No.

6) Defendant’s shot merely grazed the victim causing only slight bleeding. The victim, seeing his own

blood, freaked out and cut his own throat and dies.

a) Original act? Defendant shoots the victim.

b) Intervening act? Victim cutting his own throat.

c) Did it substantially contribute? Yes.

d) Foreseeable? No.

7) Guy intends to kill baby and gives the baby’s nurse a baby bottle with poison in it, telling the nurse

that the poison was medicine. The nurse put the bottle in the back of an icebox. During the nurse’s

absence, the 5-year old big brother found the baby bottle, gives it to the baby, and the baby dies.

a) Original act? Guy giving the baby bottle to the nurse.

b) Intervening act? 5-year old getting and giving the bottle to the baby

c) Did it substantially contribute? Yes.

d) Foreseeable? No.

e) Court said that an intended consequence is never remote (i.e. he is liable).

8) Shoots victim, wounds him but it is not mortal. Patient dies from a disease communicable to him

from his physician.

a) Original act? Shoots victim.

b) Intervening act? Disease from physician.

c) Did it substantially contribute? Yes.

d) Foreseeable? No.

e) Intended consequence is never remote? It is remote because it was not the gunshot that killed

the guy, whereas in the baby example (#7) it was the poison that killed the baby.

9) While driving, you black out, but you have no history of blacking out. While blacked out, you cross

the double yellow lines and hit another car killing the person.

a) Criminally liable? No. Could not foresee the blackout.

b) What if you were a blackout prone individual? Yes, criminally liable because it was foreseeable.

i) File Involuntary manslaughter.

10) Driving back from a casino at 4am and you are extremely tired. You fall asleep at the wheel, cross

over the double yellow lines and hit another car killing the person.

a) Criminally liable? Yes. It was negligent to drive while so tired, and foreseeable.

i) File involuntary manslaughter.

Transferred Intent

Intent rides on the bullet

Can’t transfer intent from hurting an animal to hurting a human

Hypos

1) Defendant with the intent to kill and with premeditation shoots at Y and misses, instead hitting and

killing X.

a) Bring the mental element over. Still first-degree murder.

2) Defendant in the throes of passion shoots at X and hits and kills Y

a) Bring the mental element over. Voluntary manslaughter.

3) A intends to shoot and kill a dog but misses and strikes and kills B, a person.

a) Can't transfer intent because can't go from animal to human

b) Could be wilful and wanton or involuntary manslaughter, depending on facts…need more facts

4) A observes B (boyfriend) kissing C (A's wife), A intending to kill B, hits his wife instead.

a) Bring the mental element over. Voluntary manslaughter for killing the wife.

b) Attempted murder on B

V. Duty to Act/Rescue

Duty to Rescue/Act

There are four circumstances that can create a duty to recuse/act (minority of states use it):

1) When a statute imposes a duty to care for another

a) E.g. Teachers have duty to report injuries; child-care workers; physicians; nurses; therapists when

they think their clients are going to hurt someone or themselves have a duty to report

2) Where one stands in a certain status relationship to another

a) E.g. Parents to kids; Husband to wife

b) Kids to parents? Unclear. Statutory legislation provides more clear answers on who falls under

this category.

3) Where one has assumed a contractual relationship

a) E.g. Babysitter; senior’s home; private school teacher; legal guardian; etc.

4) Where one has voluntarily assumed the care of another and so secluded the helpless person as to

prevent others from rendering aid

5) Considerations

a) Prof says this is critical to know

b) No moral obligation to come to anyone’s rescue

c) Only obligation to act if there is a legal duty to act

Hypo

1) Strohmeyer case: Parents are gambling in casino, kids are playing in the kids area. Strohmeyer

befriends kid and lures young girl into women's restroom. Cash, Strohmeyer 's friend, sees him

raping and killing the young girl, but doesn't do anything.

a) What do you file on the man who killed and raped?

i) First degree murder, could argue premeditation (befriended and lured into bathroom)

b) What do you file on the friend?

i) You can't file. Doesn't meet any of the four circumstances of a duty to rescue.

VI. Battery & Assault

Battery

Unlawful application of force to the person of another or to items closely associated to the body

Unlawful entails unjustified, unexcused, unconsented, or offensive

Do not have to show specific intent for battery

General intent: Was the defendant grossly negligent in not understanding the natural and probable

consequences of his act?

Two types of Assault

Attempted battery theory and tort theory

Always run through attempted battery theory and tort theory on exam

Assault ( common law approach: attempted battery theory)

1) The person had specific intent to batter, and

2) Person took substantial step toward completing the battery

3) Considerations

a) Can mere words be sufficient?

oNo. (However if it is couple with someone approaching the victim while using words

then it may be easier to prove assault)

oVictim does not even need to be aware of assault

Assault (tort theory)

1) Specific intent to cause apprehension

2) Victim must be aware of the defendant’s act (actual apprehension)

3) Victim's apprehension must be reasonable (i.e. would the reasonable person be afraid)

Hypos

1) Threatened to kill the victim, seized a hatchet and started towards her in a threatening attitude, she

ran away and locked herself in the bathroom.

a) Assault? Yes. Probably under both.

2) Make a throwing motion of a ball at someone, but never let go of the ball. Victim jumps out of the

way thinking that the ball will be thrown at him.

a) Assault (attempted battery theory)? No.

b) Assault (tort theory)? Yes.

3) Guy points fake gun at guy who is in the military, and he knows it is not a real gun.

a) Assault (attempted battery theory)? No.

b) Assault (tort theory)? No.

4) Defendant points a gun at X at close range and says I am going to shoot you, pulls the trigger, but

nothing happens because it is unknown to the defendant that it isn’t loaded.

a) Assault (attempted battery theory)? Yes.

b) Assault (tort theory)? Yes.

VII. False Imprisonment & Kidnapping

False imprisonment (wobbler):

1) Specific intent to confine the victim against his or her will.

2) Actual confinement.

a) It is not confinement to prevent a person from going in one direction if they can go another

direction.

b) Victim does not need to know or be aware that he/she was falsely imprisoned.

Kidnapping (felony) (Aggravated false imprisonment)

1) Specific intent to confine

2) Specific intent to move

3) Actual Confinement

4) Asportation (actual movement)

a) Does the movement substantially increase the risk to the victim?

i) Yes: then kidnapping

ii) No: not kidnapping.

VIII. Burglary & Robbery

Burglary (wobbler)

The nighttime breaking and entering of a dwelling house of another with the intent to commit a felony

or theft therein.

Nighttime: If you can't distinguish the person's face or can be established by statute

Dwelling house: it is a dwelling if the last dweller intends to return and live there.

Curtilage: The area around the house or the area that would be in such enclosure even in the

absence of a fence

oBreaking the curtilage is not sufficient for burglary. Must actually break into the dwelling

house.

I.e. garage, toolshed, home, etc.

Breaking: Any physical force to enter (even the slightest).

oEven if it was an unlocked door.

oFraud could constitute breaking because it is unconsented

o An employee or guest who has restricted authority to the dwelling house, breaks the

dwelling if he or she exceeds the authority with regard to the time or place

oIf a door was just open (ajar) and you walk in, then it is not breaking

oSomething must be part of the structure of the house for it to be breaking (i.e. if it is just

a trunk, opening the trunk is not breaking)

Entry: As soon as fingertips enter the airspace of the dwelling, we have an entering

oThe slightest entry is sufficient

oTool rule: When an instrument is used, if the entry is merely used to accomplish a later

breaking, we have no entry. But if the instrument itself was used to consummate or to fish

out an item, it is considered an entry.

General notes

oBurglary is a crime against habitation

oHardest element to prove is intent

oMajority rule: must have intent at the point of entry

o**If he provides a modified version of this rule on the exam, use the modified version**

Hypos

1) X lives on a fairly large suburban lot surrounded by a five-foot brick wall. Y slowly opens the gate of

the brick wall, hears a dog barking, and leaves.

a) Not breaking. Did not enter the dwelling.

2) X enters Nordstrom and secretes himself to rob the store after hours.

a) Not considered breaking. He entered with the implicit invitation of Nordstrom.

3) D approaches the dwelling at midnight with the intent to steal, enters through an open window and

steals.

a) Burglary? No. No breaking.

4) D arrived at the dwelling at night with the intent to steal. Is their breaking if?

a) Fence around the property and D opened the fence gate and fled when he heard the dog?

i) Breaking? No. Only broke the curtilage.

b) House had an enclosed front porch. D opened the porch door but found the main door open.

i) Breaking? Yes.

c) D walks into open door of house (didn't have to open it himself). He walks into the dining room

and breaks/opens a locked trunk.

i) Breaking? No. Not breaking into the dwelling.

ii) What if it was a cabinet built into the house? Yes. Something attached to the dwelling is part

of the dwelling.

d) D intending to climb through the window and steal jewelry, pushed in a pane of glass to reach in

and grab the door handle. Before having the chance to do more, he is arrested.

i) Entry? Yes. All you need is the slightest breaking into the "airspace" of the dwelling.

ii) Breaking? Yes.

e) D goes into house at night to steal golf club. The door is unlocked, D opened the door and the

golf club fell out of the house and he takes it.

i) Breaking? Yes.

ii) Entry? No.

f) D uses a handle of a rake to lift the latch on the front door so he can then enter and steal the

stuff.

i) Is the entry of the tool considered an entry? No.

ii) What if he used the rake to take a watch but he didn't enter? Yes.

5) Person stands outside dwelling house and shoots through an open window and hits the person

inside.

a) Breaking? No.

b) Same facts except window is closed, so the shot shatters the window

i) Breaking? Yes.

Robbery

1) The taking and,

2) Asportation (carrying away) of the

3) Personal property of another

4) From the victim’s persons or presence

a) Hard to figure out what constitutes the victim being present

i) Close enough to prevent the victim from leaving

5) With force or fear

a) Two standards for how much force is necessary:

i) Only force needed to take the property

ii) More force used than necessary to take the property

IX. Rape

General Notes

Most of the rape cases result in acquittals

Most difficult to prosecute

Two types of rape

o(1) The who done it

o(2) Consensual issue (where the rape victim knows the accused)

Rape

The penetration no matter how slight of the vagina or anus with any bodily part or object, or oral

penetration by a sex organ of another person without the consent of the victim.

1) Any sexual penetration will suffice and the victim can terminate at any time.

a) Do not need ejaculation.

b) The fact of harm is more important than the extent of the harm.

c) Theoretically at any point the woman can say no, however it may be hard to prove in court if

they were having sex consensually.

2) Against the will of the victim.

a) We do not need the woman to actually have said yes to have sex, need to look at the

surrounding circumstances.

3) Intent.

a) Not a specific intent crime.

b) General intent crime.

i) Was the defendant criminally negligent in ascertaining whether consent was given?

(1) I.e. was the defendant gross negligent in ascertaining if this was against the will of the

woman.

4) Force or threat of force.

a) She physically resisted or she didn't resist because of the threat of force

i) Threat of force:

(1) We don't need to have the woman testify that she physically resisted, threat of force is

going to be sufficient.

(2) Subjectively, did this victim have a genuine fear of immediate or unlawful injury

sufficient to induce her to submit.

(3) Was the victim's fear reasonable? (objective element).

5) Considerations

a) A person who is unconscious cannot consent

b) A person who is insane cannot consent

c) If someone is tricked into sex through fraud, then there is no consent

Hypos

1) A woman is unaware that she is having sex and believes a medical instrument is being used.

a) Rape? Yes.

2) If the woman is fully aware that she is having sex even if she is deceived that it is for medical

purposes.

a) Rape? No.

3) Defendant rapes woman but she was extremely fearful of the defendant and therefore she did not

physically resist.

a) Rape? Yes.

4) Defendant is trying to have sex with the victim, and she is repeatedly saying no. She asks if she did

what he wanted would her let her go without killing her. He said yes.

a) Rape? Yes.

X. Arson

Arson - Wobbler

Common law definition: The malicious burning of the dwelling house of another

Malicious just tells it is a general intent crime

oNot intent to burn, it is sufficient that a defendant…..

oAll you have to show is that the defendant had the intent to do the act, not the intent to

burn

General Notes:

oOne's own house is typically included as well as burning of places or things other then the

dwelling house

oSomething actually has to be burned, not damaged from smoke

oWON’T BE ON THE EXAM!!!

XI. Possession of Stolen Property, Larceny, Embezzlement,

False Pretenses & Extortion

Receiving (possession of) stolen property (wobbler)

1) To buy, possess, or receive any goods which have been stolen,

2) Knowing the property to have been stolen

3) Considerations

a) E.g. Pawn shops, garage sales

b) Same punishment as burglary (prof thinks this doesn't make sense)

If something has been taken need to consider the following four: (1) Larceny, (2) False Pretenses, (3)

Embezzlement, & (4) Extortion/Robbery

Punishment is the same between false pretenses, larceny, and embezzlement

First look at larceny, then embezzlement, then false pretenses, then maybe robbery (just like

homicide chart)

A. Larceny

Larceny

The trespassory taking and asportation (carrying away) of anything of value from another with the intent

to permanently deprive the owner of possession

Trespassory: The taking is trespassory if it is without legal right

oTrespass and intent usually happen at the same time

oWhen the trespass and the intent are at different times, we can hold the trespass until

there is the necessary intent

Continuing trespass: intent happened after the initial trespass

Taking: It is the exercise of dominion or control inconsistent with the continued rights of the

owner

Asportation: All we need to show is the slightest movement. Traditionally the theft statutes

require this asportation.

oAsportation is used for the purpose of proving intent to deprive owner of possession

Of another: Larceny is a crime against possession not title

oHypo: Takes a coat (worth $1000) to a dry cleaner, the dry cleaner says it will be done in a

few days and costs $200. Goes back to get coat, and it isn't finished. She goes behind the

counter and takes her own jacket.

Owner of coat has title. Dry cleaner has possession. Technically could be grand

larceny because the jacket is worth over $950 and dry cleaner was the one in

possession. Value of the services doesn't matter; it is the value of the property.

Intent:

oIf the defendant dealt with the property in such a manner that there is a substantial risk

that the victim will not get the property back, then there is intent to deprive owner of

possession

oAn honest though mistaken belief that one has a right to the property negates the specific

intent element

oWhen there is a question of intent, look at other options

What if the defendant acquired the possession through a lie/trick/deceit/fraud?

Still larceny.

General Notes:

oEven if it is an illegal thing (such as drugs) it still has value

oMonetary distinction in California is $950 (more than grand larceny, less than petty

larceny)

Petty larceny

Grand larceny (wobbler)

oHe wants us always to ask two questions when there is a larceny:

Was it trespassory?

Was there intent?

If yes to both, then larceny.

oIf you don't have a straight up larceny, then you need to consider embezzlement

Larceny Hypos

1) In Costco and you see a $1500 laptop, but you don't have $1500. You get a cart and go to the

lampshade areas, get a lampshade box, take the lampshade out, roll your cart over to the laptops

and put it in the lampshade box. You go to checkout, they lift the box and see it doesn't feel like it is

the right weight. As she attempts to open the box, you leave the store.

a) Is there a taking?

i) Yes, there is a taking, but it is more difficult to prove in court until he leaves the store with

the stolen stuff.

b) Asportation?

i) Yes, because he moved the laptop. Doesn't matter that he didn’t leave the establishment.

Again though, may be difficult to prove.

c) Intent?

i) It seems pretty sketchy that he put laptop in a lampshade box. Could be used to show intent.

2) D wrongfully took another kids bike, rode it a short distance, hid it, all the while intending to return

the bike the same day.

a) Larceny?

i) No intent to permanently deprive the owner of their property, therefore no larceny.

3) Steven goes into professor’s office and takes his car keys and then takes his car for a spin to get

lunch, then brings it back.

a) Larceny?

i) No intent to permanently deprive the owner of their property, therefore no larceny. This is a

different crime (joy riding).

4) Defendant rode the bike for 10 miles and dumped it on the side of a road in a sketchy area and then

walked away.

a) Larceny?

i) Maybe. Could argue that he knew the victim would never get the bike that (intent rule).

5) Defendant reasonably but mistakenly took the victim's bike thinking that the victim agreed to give

him the bike.

a) Larceny?

i) No intent. No larceny.

6) Supposed the defendant takes the bike knowing it belongs to the victim and immediately sells it.

a) Was it trespassory? Yes, took it without legal right.

b) Was there intent? Yes, he sold it right away.

i) Yes, and Yes, therefore larceny.

7) Suppose the defendant takes the bike thinking it was his own and then still sells it thinking it is his

own.

a) Was it trespassory? Yes, no legal right.

b) Was there intent? No, he thought it was his.

i) Yes and no. Therefore, no larceny.

8) Suppose defendant takes victims bike thinking it was his own, but later becomes aware that it is not

his bike but sells it anyway.

a) Was it trespassory? Yes, no legal right.

b) Was there intent? Yes, because he became aware that it was not his bike and sold it anyway.

i) Yes, and yes, therefore larceny.

9) D uses a fake ID to rent a beach bike fully intending to steal the bike.

a) Trespassory? Yes. Because obtained through fraud (thus unlawful).

b) Intent? Yes.

i) Yes, and yes, therefore larceny.

10) D "rents" the bike for an hour, pays the $20 bucks, fully intending to return after the hour but then

halfway through decides he wants to keep the bike and does.

a) Trespassory? No because he had a legal right (he rented the bike).

b) Intent? Yes, because he intended to keep the bike.

c) Larceny? No.

d) Embezzlement? Yes.

If no trespass and no intent to steal at the time of possession, consider whether it is embezzlement:

B. Embezzlement

Embezzlement:

The fraudulent conversion for one’s own use of anything of value by one who is already in possession of

the property

Possession: Dominion and control (i.e. you can do what you want with the property)

Container rule: The contents of the container would be a larceny as to the contents.

oE.g. Valet driver embezzled the car, but there were golf clubs in the trunk, and he took the

clubs: it is larceny of the clubs.

Rules related to employer-ordinary employee relationship:

oMost embezzlement cases happen with the employer and employee relationship (i.e.

insider).

o**We must always distinguish between ordinary employees and entrusted employees**

oA trusted employee is someone who has been given significant authority or discretion, and

an ordinary employee is someone who has not been given significant authority or

discretion.

oWhen an employer gives a low-level (ordinary) employee property, it is only access not

possession.

Intent does not matter

oFor trusted employees, regular rules apply and intent matters

oReceptacle rule: When the employee places the employer's property in the employer's

receptacle not for the employer but for some temporary purpose of the employee,

possession does not pass to the employer so long as the employee remains in control of

the property

E.g. pretending to return the item, but only faking it. Therefore, still in possession.

Embezzlement Hypos

1) Guy works at casino. He has access to the coin slot machines. He takes the coins from the machine.

a) Embezzlement?

i) No, because he never had possession, he only had access.

b) Larceny?

i) Yes, because it was trespassory, and he had an intent to steal.

2) Victim gives his neighbor the key to his house to let the plumber in later. Neighbor uses the key to

take the television from victim.

a) Larceny or embezzlement?

i) Larceny. He was only given access to the house, not entrusted with possession of the

television.

3) You live in a dorm and it has a tv. You live there for a year. You then take the TV when you leave.

a) Larceny or embezzlement?

i) Embezzlement because you had dominion and control over the TV.

4) Boss gives suit to low level employee to take to the dry cleaners.

a) This is only custody/access not dominion and control.

i) If employee took the suit, it would be larceny.

b) Employee gives the suit to the dry cleaner

i) This is possession, so if dry cleaner took the suit, it is embezzlement.

c) Employee picks up the suit the next day and then takes the suit for himself.

i) The employee now has possession, therefore embezzlement (intent is irrelevant in this

situation).

5) Suppose the employer handed the suit to the employee with directions that the suit be taken to the

dry cleaners. Before the employee even received the suit, he formed the intent to steal the suit. As

soon as he got the suit, he took off.

a) Larceny? Yes. He only had access.

6) Same facts, but employee received the suit with innocent intent but changed his mind before he got

to the dry cleaners, and he took off with the suit.

a) Larceny? Yes. He only had access.

7) Same facts, except the employee received the suit with innocent intent and delivered it to the

cleaners. He was sent back the next day to get the suit to bring to the employer, and employee had

formed the intent to steal the suit before he received it from the dry cleaner. He got the suit from

the dry cleaner, and then took the suit.

a) Embezzlement? Yes. He had received possession.

8) Same facts, except the employee received the suit with innocent intent and changed his mind on the

way back to the boss and took off.

a) Embezzlement? Yes. Intent doesn't matter and he had possession.

9) Same facts, except that the employee returned the suit to the employer's house and placed it in the

employer's closet. Then later formed the intent to steal it and went back to steal it.

a) Larceny. Possession was transferred back to the employer, so when he went back and stole it, it

was larceny.

10) Same facts, the ordinary employee is now returning from the dry cleaners and is walking to the

employer’s house. He walks into the house with another guy, and to make sure no one sees he is

doing any funny business, he hangs it in the employer’s closet. Then when the other guy leaves, the

employee takes the suit.

a) It is embezzlement, the possession did not transfer (refer to receptacle rule)

11) You drive your car and turn into the Nobu (sushi restaurant) parking lot to get valet. The valet says to

himself, this is exactly the kind of Mercedes I want, and the valet driver steals the car.

a) What's the crime? Larceny by trick.

b) Trespassory? Yes, he took the car unlawfully. Intent? Yes.

12) Same facts, but the valet hangs the key on the rack and parks the Mercedes. An hour later, he gets

into an argument with the boss, so he goes and takes the Mercedes keys and takes the car.

a) What's the crime? Embezzlement.

b) Trespassory? No, he stored the car originally.

c) Intent originally? No. After he had possession, he formed the intent and converted the property.

i) Timing of intent matters.

C. False Pretenses

False Pretenses

Obtaining title of the property of another by means of a material false representation with the intent to

defraud the victim

Obtaining title of the property of another:

oDefendant must actually acquire title

oDid the defendant actually acquire title?

Title has passed when the victim intended that title should pass

Usually when money passes, it is assumed that title passes with the money.

If the victim only intended to pass title to a third party, then that is not going to be

false pretenses

False representation: the defendant must have intended to defraud, or he had a don't care

attitude.

Material lie: The false representation must be a lie rather than an opinion or speculation and the

lie must be material and must relate to a past or existing state of affairs.

oMaterial: was that the controlling inducement to turn over title.

Reliance: did the lie cause the victim to turn over title and was the victim actually deceived.

General notes:

oThe defendant has fraudulently induced the victim to turn of the property and the title.

oIf the acquisition of title was the product of trickery or misrepresentation.

oThis is basically theft by deception.

False Pretenses Hypos

1) The defendant "rents" the car with the intent to never return it.

a) Crime? Larceny by trick.

2) Defendant knowingly writes a worthless check to buy the victim’s car, all the while he intends to take

off with the car, and he does take off with the car.

a) False pretenses.? Yes. He received possession and also got the title.

3) Defendant told two elderly women that if they loaned him money, he would purchase some

property, improve it, and then sell it for a profit which he would share with them. He actually did not

own the property and never gave them back the money.

a) Did title to the money actually pass?

i) Did the victims intend that the money should go over? Yes.

ii) Did he actually acquire the money? Yes.

iii) Therefore, yes the title to the money passed to the defendant.

b) Did the defendant intend to defraud?

i) Yes.

c) Was the lie material?

i) No, because it was an offer to pay them in the future. The lie did not relate to a past or

existing state of affair. Therefore, not false pretenses.

4) Mark has limited funds, needs a nice suit and goes to Nordstrom to buy a suit. He finds a $1200 suit

but doesn't have the money and his credit is tapped out. He pulls a tag off a $600 suit and swaps it

with the $1200 tag. He then buys the suit for the fake $600 price.

a) Did defendant actually require title?

i) Yes.

b) Was the cashier actually deceived?

i) Yes.

c) False pretenses?

i) Yes.

d) What if the cashier was told he switched the tags?

i) False pretenses? No.

ii) Larceny by trick? Yes.

D. Extortion/Robbery

Extortion

The making or refraining of certain prohibited threats with the specific intent to obtain something of

value

To hurt: to unlawfully injure the property or person of an individual important to them

oEx. If you don’t give me this money, I am going to hurt your son (don't actually have to

hurt someone to be charged)

To accuse: to accuse the individual threatened or someone dear to him of a crime

To expose: To expose any secret affecting the individual threatened or someone dear to him

**PROF INDICATED THIS LIKELY WON’T BE ON THE EXAM**

XII. Solicitation

Solicitation

Defendant is guilty of solicitation if he counsels, incites, or induces another to commit or to join in the

commission of a felony or a serious misdemeanor

This is a specific intent crime

oMust have specific intent to solicit the targeted offense, and he actually did counsel, incite,

or induce

Serious misdemeanor is one that has the potential for greater than 6 months in county jail

oE.g. Sex act in public

The person targeted does not have to agree to the offense for it to be solicitation

Generally, the defendant who does the bare minimum necessary for solicitation, typically will

not have done enough to commit an attempt

Typically, if we complete the crime, the solicitation will disappear and merge into the completed

offense.

oHowever, if the solicitation becomes a conspiracy, you can file conspiracy and the targeted

offense.

oYou cannot file solicitation and conspiracy

Solicitation Hypos

1) Defendant a man dressed as a woman stood on the curb between 1:30am-2:30am in an area known

for prostitution in activity. He engages male occupants of three different cars. They charged him with

solicitation. Police could not hear what he said, only saw that he approached them.

a) This is clearly solicitation. The question becomes whether they could prove it since the police did

not hear what was said.

2) Defendant says to bar friend that I'd like to beat this guy up. His friend agrees and says yes, lets go

get him.

a) Solicitation? Probably.

3) The defendant is a national director of the Jewish defense league. He is protesting an upcoming

march by the American Nazi party to be held five weeks in the future. He is now addressing a large

group, and he stands up and holds five 100 dollar bills and says he will pay anyone in this crowd if

they hurt or kill one of the Nazis.

a) Solicitation? Most likely.

i) Court looked at the proximity of the potential offense (i.e. it was five weeks away)

ii) Court felt that considering the gravity of the march, the solicitation was imminent

iii) Court also asked about the degree or likelihood that somebody in the crowd would try to

hurt or kill a Nazi.

(1) Court felt that there was a degree or likelihood

XIII. Attempts

Attempts

The specific intent to commit a criminal act and a perpetrating act done pursuant to the attempt.

There is no such crime as attempt. You must tie it to a targeted offense (i.e. attempted battery,

attempted larceny, etc.)

Purpose is to punish blameworthy conduct even if it was not committed

oThe punishment for attempted crime is half of what it would be for the actual crime.

The intent is a necessary element of every attempted crime even when the target offense does

not require specific intent.

oEven if it was a general intent crime, you have to prove specific intent

Abandonment: Abandonment even if voluntary, it is no defense to attempted crimes.

Impossibility: If it is a factual impossibility it is still going to be an attempted crime.

oA legal impossibility used to be a complete defense. (i.e. you shoot someone who was

already dead, it cannot be attempted murder).

oMost jurisdictions have got rid of both factual and legal and have adopted an apparent

possibility.

oApparent possibility: It doesn't matter whether it was factually or legally impossible, it is

not a defense.

Three different approaches for perpetrating act (for an exam, choose two that speak to you and

use them) **PROF RECOMMENDS THE FIRST TWO APPROACHES**

1) Preparation vs. perpetration

i) Preparation: Devising or arranging the means or measures necessary for the commission of

the offense

ii) Perpetration: is direct movement towards the commission of the offense

2) The blameworthy approach

i) Is what the defendant did wrongful in of itself? And was the act too remote to be

considered?

3) Examples from model penal code:

i) Lying in wait. Enticing or seeking to entice to get he victim to go where the crime is to be

committed (i.e. setting a trap). Unlawfully entering a structure or vehicle. Possessing

materials to be employed in the commission of the crime if those materials are specially

designed for unlawful use and serve no lawful purpose

Attempts Hypos

1) Defendant has a highly contagious sexually transmitted disease; he is aware of his condition and how

contagious it is. He rapes two women.

a) Attempted murder?

i) Probably not. Would be very difficult to prove specific intent.

2) Our defendant has had 12 drinks over a couple hours. He climbs into his car, but the car won't start,

and he falls asleep.

a) Attempted drunk driving?

i) No because it would be very hard to prove the specific intent.

3) Defendant acted with willful wanton disregard for life, but the defendant did not die.

a) Attempted murder 2?

i) No. Because you need specific intent.

ii) Even if it was a general intent crime, you have to have specific intent.

4) Defendant robbed a bank, turned and fired at a cop, but missed the cop. Defendant said he did not

intend to kill the cop but only to scare the cop off for his escape.

a) The state court reasoned that because of the near impossibility of proving specific intent, the

law allows an inference of intent just from committing the act.

i) Prof thinks that is stupid.

5) Person wants to kill someone by poison.

a) He buys a book on poison.

i) Perpetrating act? Not likely. Just preparation.

b) And buys some lethal rat poison.

i) Perpetrating act? Still not likely. Just preparation.

c) Takes person's coffee cup from their office.

i) Perpetrating act? Still no. Seems just like preparation.

d) Pours the poison in the coffee cup.

i) Perpetrating act? Probably. Could argue either way, but definitely leaning towards

perpetration.

e) Returns poisoned cup to the office.

i) Perpetrating act? Absolutely. Attempted murder? Yes.

6) Defendant went to the home of a bank manager and at gunpoint ordered the manager to

accompany him to the bank. At the bank, the manager explained there was a time lock on the safe

and that it couldn't be opened for hours, so the defendant left.

a) Attempted robbery? Yes.

b) What if the guy responded to the manager and said, that's ok I made a mistake anyway.

i) Attempted robbery? Yes.

c) What if a block away from the bank, he changed his mind and let the guy out.

i) Attempted robbery? Yes, under all three theories of perpetration.

7) Defendant intending to kill the victim arrives at the victim’s residence and shoots into the victim’s

den. The victim is sleeping in another room, but the defendant doesn't know that. Therefore, it

would be impossible to kill the person.

a) Attempted murder?

i) Yes. Doesn’t matter it was an impossibility.

b) Same facts, except the victim is in the den, but had already died from a heart attack when the

bullet hit him.

i) Attempted murder? Yes, because it doesn’t matter it was a legal impossibility.

XIV. Conspiracy & Accessory After the Fact

Conspiracy

An agreement between two or more persons with the specific intent to combine into an agreement, and

with the specific intent by at least two persons to complete/achieve the objective of the agreement

In most jurisdictions, you need an overt act

Overt act: Need some conduct beyond mere words to demonstrate the firmness of the intention

to go beyond mere words

oThe over act of any one of the conspirators is enough even if others don’t have an overt

act

oDon’t need near as much as you would need for aiding and abetting or for attempt

Can’t just have conspiracy on its own, must also have a targeted offense (e.g. murder, robbery,

etc.)

oConspiracy does not merge with the targeted offense

oTarget offense does not have to be committed

Mere presence at the scene is never sufficient

oBut we could use the surrounding circumstantial evidence

Mere knowledge is never sufficient

Always ask:

oDo we have a targeted offense?

oIs there accomplice liability?

Unilateral conspiracy: is an exception to the rule where there can just be one person involved in

the conspiracy, however for our class we are only going to use bilateral (two or more people

involved in the conspiracy)

Liability of parties to conspiracy rule: Each member of the conspiracy is liable for the crimes

committed by any member of the conspiracy if the crimes were reasonably foreseeable and

done in furtherance of the conspiracy

oBasically, a different form of accomplice liability

Chain conspiracy: Stream of commerce. E.g. drug production in poppy fields, distributed to

cartels, who distribute to the US who then individual dealers sell the product.

Hub and Spoke conspiracy: Limited to a central person (i.e. hub) and has various person carrying

out he acts (i.e. spokes).

oSpokes would each be charged separately.

Ordinance rule: Look for situations where the agreements involved more participants than were

necessary for the complete of the subsequent offense.

oIt is supposed to tell you which crimes do not involve conspiracy.

Renunciation or withdrawal: At common law, no withdrawal once the conspiracy is formed.

However, in contemporary jurisdictions that require an overt act, they will let the parties get out

if the over act has not yet been committed.

Conspiracy Hypos

1) Fact 1: Guy who wasn’t the shooter was present at the scene of the execution. Fact 2: The guy was

present when the bounty for killing the guy was decided. Fact 3: After the shooting, he went with

the shooter to the location where the murder weapon was. Fact 4: Guys fingerprints were on the

murder weapon. Fact 5: He lied to the cops. Fact 6: Guy was a gang member.

a) Conspiracy?

i) If you look at each fact separately, then likely not conspiracy.

ii) However, if you looked at the totality of the facts, then likely conspiracy.

b) Accomplice liability?

i) Not likely. Difficult to prove specific intent to aid and abet.

2) Meth dealer is producing methamphetamine. He needs a third party to rent him a trailer to cook the

meth in. The meth dealer gives a deposit of $100 to a owner of a trailer. The owner of the trailer

knew what was going to happen: he set the trailer up for meth to be cooked in it (by clearing out

everything and putting a tarp down) and he agreed to rent it to him. However, a day later, the guy

who owns the trailer backs out of the deal.

a) Conspiracy?

i) Hard to prove that owner of trailer had a specific intent to achieve the objective of the

agreement.

ii) Mere knowledge and presence is not enough.

b) Accomplice liability?

i) Likely. He had the specific intent to aid and abet, and he actually did aid and abet, and he

had knowledge of what the unlawful nature.

3) Defendant had a telephone service and used this telephone service as a platform for prostitutes and

gave the prostitutes discounts for paying for his phone service if they received a lot of calls.

a) Specific intent to combine into an agreement? No.

b) Specific intent to achieve the agreement? No.

c) He was providing a telephone service, not conspiring with the prostitutes. Therefore, no

conspiracy

d) Accomplice liability?

i) Yes. He intended to aid and abet and did and knew what was going on.

4) A cocaine dealer sells to an undercover cop who is there for legitimate law enforcement purposes.

a) In unilateral jurisdictions, it is conspiracy

b) In bilateral jurisdictions, it is not conspiracy (most jurisdictions have bilateral)

5) Suppose D and A agreed to rob the victim. Before they can acquire the victim’s wallet, the victim

puts up an unexpected resistance. A pulls out a gun and shoots the victim, killing him. D an A run off.

a) File murder 2 on A? Yes.

b) File conspiracy to rob on D and A? Yes.

c) File attempted robbery on D and A? Yes.

d) File murder 2 on D based on conspiracy rule? Yes.

6) Guy growing poppies in Afghanistan. Goes through various people and channels to eventually get to

the drug lord in the U.S.

a) Everyone is technically on the hook for conspiracy (chain conspiracy)

i) Would be impossible to prosecute guy in Afghanistan though.

7) Supposed the man has his secretary make the reservation for the room, with her knowing full well

that prostitution would take place.

a) Conspiracy? Yes.

i) Anytime you have a third person beyond the parties that are necessary to commit the crime,

then you have a conspiracy.

Accessory After the Fact

Only if you hide the person after the crime

XV. Self Defense, Battered Wife Syndrome, Duty to Retreat,

& Police Officer Rule

Self-defense

There is a privilege to use such force as reasonably appears necessary to defend against an apparent

threat of unlawful and immediate violence from another.

Subjective belief: He must believe he needed to use self-defense in order to save his life.

Objective standard: Defendant must objectively believe (in other words, reasonable belief) that

he needed to use self-defense.

Imperfect self-defense: When you subjectively believed, but it didn't meet the objective

standard.

oYou are going to be punished as if it were voluntary manslaughter.

Immediate: The attack must be underway.

oAnticipating an imminent attack has traditionally not been sufficient.

Force: May not use more force than necessary to prevent the victim from harm.

oI.e. Can use deadly force if confronted with deadly force. Cannot use deadly force if not

confronted with deadly force.

Response by attacker:

o If the initial force is non-deadly and it is met with deadly force by the defender, the

attacker is now free to use deadly force to meet the deadly force by the defender.

oIf the initial aggressor withdraws but is still met with force, the aggressor may act with

force to prevent the harm from the defender

Defense of others: A person has a right to defend others if he reasonably believes that the

person assisted has the right to use force in his own defense.

Mistaken Belief: If a mistaken belief (such as an undercover arrest), it is ok to come to the

assistance of the person being arrested if you reasonably believe that person is being unlawfully

attacked.

Defense of property

May use non-deadly force when it appears reasonably necessary to protect property from trespass or

theft, however the actor (defender) must first request the wrongdoer to desist unless it appears

dangerous or futile.

When can you use deadly force?

oIf you are confronted with deadly force or the occupant reasonably believes that the

intruder intends to commit a felony inside.

oSpring guns - split in the jurisdictions.

Battered woman syndrome

Need expert testimony

oFew jurisdictions still don't allow expert testimony for this

oMost jurisdictions will allow that expert testimony

Is the woman dependent on the income the man brings in?

Are there frequently kids involved?

What does the man say to the woman? (i.e. if you leave, I will kill you and the kids)

Woman doesn't have a mode of transportation

Woman may not have a way out (i.e. alternatives

Was the threat immediate?

oWoman must actually be attacked before she can defend herself

oThe majority rule is still immediate

oSome allow it to be "imminent"

**PROF SAYS THIS WILL NOT HOLD UP AS A DEFENSE, ONLY USE SELF DEFENSE**

Is there a duty to retreat?

There is a duty to retreat if the retreat can be done safely

Castle doctrine: No duty to retreat from your castle if a stranger enters your house, you can use

deadly force to defend yourself even against non-deadly force

Stand your ground: If you are in a place where you have a right to be, you don't have to retreat.

You can respond with proportional force to a threat. (i.e. deadly to deadly, non-deadly to non-

deadly).

Police Officer Rule

Deadly force may not be used unless it is necessary to prevent escape and the officer has probable cause

to believe the suspect poses a significant threat of death or serious physical injury to the officer or

others.

Hypo

Officer responded to a prowler call and it is 10:45pm. The officer saw the suspect, didn’t see the

weapon, and thought the suspect was a teenager. Called out to suspect to halt, the suspect ignored the

officer and tried to jump a fence a few yards away. Officer convinced he was going to escape, shot and

killed him.

This violates the police officer rule.

XVI. Duress & Necessity

General Notes

Duress and necessity are both affirmative defenses

Defendant bears the burden to prove a simple preponderance of evidence

Duress definition

Defendant commits a lesser crime in order to avoid the greater evil of death or serious bodily injury to

himself or another.

Requires an immediate or impending threat of death or serious injury

oImpending is less than immediate

There must be a reasonable fear that the threat will be carried out

Must have no reasonable opportunity to avoid the threat and harm other than by committing

the criminal act charged

Considerations:

oImmediate for self-defense or battered wife syndrome needs to literally be immediate

oFor duress, it can be more impending, does not have to be immediate

oDuress is a complete defense

Necessity definition

Requires that the person reasonably believes that the commission of the crime was necessary to avoid

an imminent and greater evil and that the defendant's action will be effective in abating the greater evil

E.g. Protesting to stop dreamers from being deported, and charged with resisting arrest

Usually if the crime is only trespassing, the judge will give a necessity instruction.

Hypos

1) D, a mother, is a battered girlfriend who has been subpoenaed and has to testify against boyfriend in

trial. She refuses because she fears boyfriend will harm her or the kids because he told her he would.

Prosecution implements a contempt charge against mother.

a) Would judge allow instruction of duress? Probably.

2) Colombian man forced by a cartel to swallow bags of drugs and smuggle them into the US. He

claimed unless he did, his wife and child would be killed. The cartel produced very specific data to

show him they knew where they were and that they could hurt his family if they wanted. He gets to

LAX and the authorities catch him and charge him with serious drug charges. He brings up the

affirmative defense of duress.

a) Trial court refused to instruct because they didn't think it was an immediate enough, and they

said there was insufficient evidence.

b) If duress instruction denied, can apply for immediate write to appellate court

i) Appellate court reversed this decision and said duress instruction should have been allowed

because he had no other reasonable way out.

3) Hypo 13.5: D is forced to participate in a bank robbery by holding a mask and acting like he was

holding a gun because a man threatens to shoot him if he doesn't. During the robbery the

threatener shoots and kills the bank guard. At his trial, the defendant tries to offer proof of duress

but the state objects that the defense cannot be used for murder.

a) Felony murder charge (because we are pretending that even the person who didn't commit the

shooting can be charged with felony murder)

XVII. Insanity

General Notes

If insanity defense is successful, they are put into a mental facility

oYou can hold someone indefinitely in a mental facility, usually their stay is reviewed every

two years

You cannot execute an insane person

oOne reason is they are unable to understand why they are being punished, so it removes

the purpose of the execution

How do you disprove insanity?

oInterview friends and family for past mental illness or strange behavior

oMedical records

oAnything that may have triggered a break from reality

If he tests on insanity (although it sounded like he won't), he wants us to know McNaughton and

the irresistible impulse

Insanity is a complete defense

McNaughton Insanity rule: A complete lack of the capacity to appreciate the wrongfulness of his or her

act. The accused was unaware that the act was one which he ought not to do and/or if the act was

contrary to the law of the land. The mental disease must be severe enough to distort the defendant's

view of reality.

Irresistible impulse rule: The defendant knows and understands what he is doing but his self control is

severely impaired.

Modal penal code insanity rule: as a result of mental disease or defect, the defendant lacks substantial

capacity either to appreciate the wrongfulness of his conduct or to conform his conduct to law

Combines both McNaughton and irresistible impulse, and it changes McNaughton

Hypo

1) Drown all five of her children in a bathtub, called 911 and admitted to doing it. She later claimed she

had temporary insanity. Postpartum depression disorder. She was hallucinating and thought she was

possessed by demons. Thought she was saving her children. Doctor had advised her to stop having

children because she was getting postpartum depression after each pregnancy, but the husband

insisted they kept having children.

a) Insanity defense?

i) Likely yes.

XVIII. Intoxication

Intoxication

A person is presumed to intend the natural consequences of his voluntary act.

Is intoxication an affirmative defense? No.

Can intoxication knock out an element of a crime? Yes.

It can knock out the ability to form specific intent, not general intent.

They have to be so drunk that it prostrates their senses.

Intoxication Hypos

1) Guy is extremely drunk and fires a shot at a moving train. It hits someone in the train and kills them.

a) Willful and wanton? Can he have an acute awareness for the potential for death when he is that

drunk?

i) This is a general intent crime; therefore intoxication is no defense.

2) Defendant premeditates murder while sober, but then drinks heavily to get the courage to commit

the murder, and then he does commit the murder. This happened over a very short time frame

between the premeditation and the murder.

a) Premeditation? Yes. Murder 1. Intoxication was part of his premeditation.

XIX. Entrapment

Entrapment

Majority view: Focuses on Intent or predisposition of the defendant rather than the government's

conduct

This opens up a character attack on the defendant

Minority view: If the government employs methods that created a substantial risk that the crime will be

committed by an otherwise law-abiding citizen.

The focus under the minority view and the modal penal code is on the government's conduct

He wants us to know the minority view

General Notes:

Entrapment is an affirmative defense (it is a last resort type of a defense kind of like the insanity

defense)

Burden of proof is on the defense to prove preponderance of the evidence

It is never a defense to serious crimes such as murder, burglary, robbery, rape

Entrapment Hypos

1) Hanna a prostitute sees a man trolling in an area known for prostitution and asks him if he needs a

date. The man hesitates and replies that he doesn't know if he can afford it. She replies that the date

would only cost $100 and that they could use her car around the corner. The man is a cop and

arrests her.

a) Was she entrapped?

i) Doubtful. She initiated contact and solicited him.

2) Lucy three years ago was arrested and convicted on prostitution to help pay her college tuition. One

day she was walking home and a man approached her and offered her money for sex. She was

offended and kept walking. The man persisted and offered her $1000 for sex. She agreed.

a) Solicitation? No.

b) Attempted prostitution?

i) Doubtful because it seems she was entrapped. She was approached by the police officer and

solicited into a crime she was not planning on committing.

3) Police aware that the defendant purchases male order porn which is legal. The police then sent him

a solicitation for some illegal child porn. Defendant purchased the child porn and was arrested.

a) Entrapment?

i) Yes. He was solicited into a crime he was not going to commit and was acting legally previous

to the police soliciting him.

XX. Mistake of Fact & Mistake of Law

Mistake of Fact

Refer to hypos.

Mistake of Fact Hypos

1) Larry thinking that Bob's jacket was, mistakenly picks it up, puts on the jacket, and walks away.

a) Larceny?

i) Was it trespassory?

(1) Yes.

ii) Intent to permanently deprive?

(1) No, he thought it was his. Mistake of fact.

iii) Therefore no larceny.

2) Larry is at a swap meet. Larry buys an iPad for $80. Later he is arrested for being in knowing

possession of stolen property.

a) Is he guilty of possession of stolen property?

i) If he reasonably believed that it wasn't stolen, it probably doesn't matter that objectively it

was probably stolen considering the price. Therefore not guilty.

3) Someone was given sugar and told it was cocaine, and they went and sold it on the street.

a) If we have a material element missing, we have no crime.

i) Therefore, since it was sugar, there is no crime.

ii) However, you could charge attempted drug trafficking

Mistake of Law

If it is a decree from a court, some administrative order, or some official interpretation of the law that

turns out to be erroneous, a person can rely on that. If it is only the opinion of the lawyer, a defendant

cannot rely on that.

Mistake of Law Hypos

1) The dry cleaner did not have the suit ready on time. The defendant was ticked off, walked around the

counter and grabbed the suit.

a) What was his mistake of law?

i) He thought the suit was still in his possession. It was not. Therefore larceny. Mistake of law

does not matter.

2) Defendant moved from Delaware to Arkansas and sought a divorce. He consulted with a lawyer who

told him the divorce would be valid and that he could remarry. He was subsequently charged with

bigamy because the lawyer gave him bad advice.

a) Doesn't matter, he is still liable for the crime. Mistake of law from the opinion of a lawyer does

not matter.

Criminal Law Outline – Caldwell.pdf

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