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Prezi from Introduction to Law Course

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Natalie Eberts

on 19 June 2013

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Transcript of Prezi from Introduction to Law Course

State v Gordon- Intent/MR of Robbery
People v Shaughnessy-- Voluntary AR
Definition of a Crime
Purpose of Criminal Law-- Punishment
What are the legal bases/justifications for sentencing D to 4 months in prison for filing fraudulent Medicaid claims (a fed. crime)?
Reasons for D’s particular sentence are (1) general deterrence (GD) & (2) MPC’s “seriousness of D’s crime”
NOT for rehab (which is not punishment) or specific deterrence (D is not dangerous, so no need for incapacitation)
But for GD (based on both retributivism & utilitarianism)
Real, not merely token, punishment of D is called for
Individualized sentence: term of yrs. is too long (“cruel”); 4 mos. is “a stern sentence,” but “not notably long”
Based on ethics of Immanuel Kant
Wrongdoers receive punishment because they deserve it for their wrongful actions (“just deserts”)
View comports most w/ common sense notions of justice (i.e. getting what you deserve)
Retributivist theory of punishment
Utilitarian theory of punishment
Based on ethics of J.S. Mill
Punishment should benefit society, or else it is not justified (why punish D if doing so does not benefit society?)
Views retribution as merely a base & primitive thirst for revenge (i.e. “an eye for an eye”)
US v Bergman -- Purpose of Punishment
Ways to Classify Crimes
Malum in se - "bad/wrong in itself"
Types of Crime
Felonies vs Misdemeanors
Crimes Against Persons
Crimes Against Property
Crimes Against Govt./State
Malum Prohibitum - "bad/wrong because its prohibited"
E.g.: drug possession, driving w/out a license, serving alcohol to a minor
E.g.: murder, rape, theft, arson, battery
Some crimes may be difficult to classify as either
E.g.: statutory rape, sale/use of illegal drugs
e.g. assault, battery, rape, kidnapping, murder, manslaughter, mayhem (i.e. dismemberment)
e.g. theft/larceny, robbery, burglary, embezzlement, extortion, false pretenses/fraud, arson
e.g. contempt (not giving court testimony), perjury (lying in court), bribery, obstructing justice, treason
Def. 1 - Length of Imprisonment
Def. 2 - Location of Detention
Felony-- >1 year
Misdemeanor-- <1 year
Less then or = to
Limits on Prosecution
No Ex Post De Facto (criminal) laws
prohibits retroactive prosecution of behavior that was not a crime when it was committed
No Double Jeopardy
D can only be prosecuted for the same act/crime once (prosecutor gets only one “bite at the apple”)
State/govt. cannot appeal D’s acquittal at trial -- if state loses case against D, state can't appeal.
No Status Crimes
E.g.: cannot criminalize being a drug addict or member of a gang
Can only criminalize behavior: e.g. loitering, selling, possessing drugs
Principle of Legality
an act cannot be punishable w/out an extant [criminal] law prohibiting the act
Historically, Js could create crimes by C/L (like in tort law)
Now Js can no longer create crimes (still okay in tort law)
Principle applies to both state & federal criminal laws
Rule of Leniency
any ambiguity in the meaning of a criminal statute is interpreted in D’s favor (leniently)

Rationale: because of the seriousness of criminal punishment, & stigma of being convicted or even just being charged w/ a crime, we want to give the benefit of the doubt to criminal suspects
Justice prohibits imposing disproportionately harsh criminal sentences or penalties
U.S. Const. 8th A. prohibits “cruel & unusual punishment”
Examples of disproportionate sentences
Jailing of drug addicts: addiction is now viewed as medical condition/illness, not a crime
Life imprisonment without possibility of parole for recidivist (repeat) bad-check writer of check for $100
Death penalty for convicted rapist of a child was recently held to violate 8th A.
A crime is a wrong committed against primarily the
, not the individual victim
A crime is any act that society finds sufficiently unacceptable as to prohibit by law, & whose commission legally requires public sanction (i.e. punishment)
“the people” or “the state of” or “the king/queen” VS criminal
Criminal system for Society; Civil system for individuals
Prosecutor represents the state, NOT the victim-- problems when victim's interest conflicts with prosecutor's
(eg. Rape victim cross-examination, prosec has to try to persuade, if can't, may drop the case or go ahead.)

Victim has no say (except reporting crime). (“Would you like to press charges?”)
Also no say in what charges criminal pressed with (eg. restraint, assault, rape.)
Also no say in whether case goes forward (may not because not enough evidence or may be dropped even if want to go fwd)
Facts: Dr Bergman runs several nursing homes, guilty of filing fraudulent Medicare claims (overbilling govt), plead guilty. Plea guilty for lighter charge or shorter sentence.
Sentenced to 4 months. Defence attorney-- is this just?
Not violent, older, of good character (evidence = rabbi, philanthropist, community letters, etc)

Judge gets into moral philosophy-- reasons he should be punished:
1) General Deterrence-- deterring other people from committing crime
Also Specific Deterrence-- deterring same person from committing crime again
GD and SD = Utilitarian rationale for punishment

Retribution-- Kant , just desert. Categorical Imperative = respect people as ends, not as means, similar to Golden Rule.

NOT Rehabilitation, which is good for person being punished, education

MPC-- Model Penal Code – drafted by American Law Institution, supposed to law (unlike Restatements). NY first state to adopt.

Any lesser penalty would “depreciate he seriousness of the defendant's crime” – 4 months wouldn't, it's long enough tot not be a token, but not so long so as to be unjust.

Defense attorney: Similar cases have gotten less time. Judge: there are disparities, but discretion for each indvid. Defense: let's put hm to good use, do community service. Judge: that's not punishment for him, needs to hurt.

SC Tenessee vs Pyne – we punish for BOTH deterrence and retributivist reasons.

Fed Minimum Sentencing guidelines with range of years, States also have guidelines. State legislatures have also been trying to restrict judges' discretion. 3 strikes law, min sentencing/truth in sentencing. Judges hate this, so will often charge a lesser crime so that sentence is less.
Retributivist-- if someone harms you, need to pay you back
“An eye for an eye”-- isn't this fair? Would it be fair for them to gouge out your eye and you slap their wrists? Sounds harsh but also limits punishment, don't cut their arm off.
Idea that it's not wrong to wrong a wrongdoer.

Seems to be circular-- commit wrong, should be punished because deserve it, why deserve it? Because it was wrong. Very visceral response.

Rape case test-- rapist that has mental illness that makes them never rape again. If can make public think punished them (general deterrence) but didn't (no specific deterrence), should you do that? Retributivists: no, Utilitarians: maybe.

Most people combination of Utilitarian and Retributivist, criminal justice system is.
To really respect someone's moral agency is to treat them as they deserve.
Most evidence shows that cap punishment doesn't have general deterrence, some times increases rate of murder.
Do harsher punishments reduce the rate of crimes? Conflicting evidence.
Felony- State peneteniary
County jail
Administrative crimes
Also Infractions/citations-- civil offense, traffic tickets.
Jurisdictions define differently
/Violent Crimes
Murder/homicide = killing with intent to kill, cold-blooded, premeditation.
Manslaugher = killing in hot-blood. Complexities = that it can be bumped up and down.

Degrees different in different jurisdictions, sometimes 1st the worst, sometimes 3rd.
In other words: In order to prosecute someone, has to be a law on the books already prohibiting their conduct. Can only charge someone with a law that's one the books.
Whoever commits new crime gets away with it (eg. ID theft).
Can't punish somone for doing something that was LEGAL at the time they did it.
Sometimes also applies to raising sentence if raised during course of trial
Due process, benefit of doubt to D.
EG. Communist party.
SC has ruled impermissible, but legislatures have gotten around it by prohibited behavior associated with the status
Ch. 8a Criminal Theory
Elements of a Crime
Actus Reus (AR) - "criminal ACT"
Mens Rea (MR) - "criminal intent/mind"
Causation of Harm
(or of banned substance) [e.g. drugs, firearm, stolen goods])
ALL elements must be proven Beyond a Resonable Doubt
[No defenses to the crime: may be raised by D]
D’s act must be VOLUNTARY
Habitual behavior, even if done w/out conscious thought, is sufficient for AR
Possession of an illegal item satisfies AR
Examples of AR element in crimes:
Battery: “unjustified, offensive, or harmful touching of another person”
Theft: “unlawful taking & carrying away of another person’s property”
D's acts CANNOT be INvoluntary
Actions done while sleepwalking, unconscious, or under hypnosis

Actions beyond D’s conscious, physical control
E.g.: reflexes, convulsions, actions resulting from one’s being acted upon (e.g. lurching forward on bus, being pushed into someone by another)

Actions resulting from disease/illness
E.g.: Tourette Syndrome, epileptic seizure
Exception: if D can control seizure/behavior w/ meds but fails to take meds, then D will be held liable for ensuing results from failing to take meds
Voluntary vs Involuntary
NO—because AR is missing
whether D is guilty of criminal trespass for sitting as a passenger in a car that unlawfully entered onto private property
Rationale: criminal responsibility always requires a voluntary act (i.e. AR)
D committed no voluntary act, therefore cannot be guilty of any crime: D only rode in car driven by other
Absurd result: if D were held G in this case, then D could be held G if were asleep, unconscious, or held as prisoner in the car
Omissions to Act
Omissions to act can be criminally punished w/in these contexts/relationships:
Special Relationship
spouses have legal duty to protect/care for their partner;
parents have legal duty to protect/care for their child (normally NA to other familial relationships [grandparents/kids, cousins]);
employers have legal duty to protect/care for employees while on the job;
teachers have legal duty to protect/care for students while at school
Contractual Duty
daycare center worker must care for children;
security guard must provide security for bank/company;
nursing home must care for residents;
physician must provide medical care for patient
Statutory Duty
law requiring doctors to report suspected child abuse;
IRS code requires filing tax returns;
adult men must register for selective service
Voluntary assumption of duty/responsibility
(including rescue/harm)
Normally, no one is required (outside of the relationships described above) to give aid/assistance to another in emergency situation
But if D voluntarily chooses to aid P in emergency, but later discontinues giving that aid, D might be held criminally liable for P’s harm, even though it was not D’s actions that originally harmed P or put P in danger
Also, if D’s actions did originally put P’s life in danger, then D is legally required to rescue/aid P or else possibly be held criminally liable if P is harmed or killed
Rationale: D’s voluntary actions which induce P’s reliance will create a duty-based relationship
Omissions to Act
Voluntary vs Involuntary
whether evidence was sufficient for the jury to find that D intended to steal V’s car, despite D’s statements to the contrary
YES—evidence sufficient to show that D intended to steal car: D’s conviction affirmed
Although D said he would return car, D also testified that he “just wanted to get out of area & leave car & get under cover somewhere”
D’s testimony, along w/ fact that D had abandoned another car, supports jury’s finding that D’s promise to return car was empty
must determine D’s state of mind—whether D intended to return car to its owner
Case illustrates what kind of evidence is considered when determining whether D had the sufficient MR for a crime
To be convicted of a crime, D’s criminal act must be simultaneously accompanied by a criminal intent (a.k.a. “requisite mental state”)
Different crimes require different MR
Traditional CL rules specified 3 different levels/degrees of MR
Modern criminal statutes & the Model Penal Code (MPC) specify 4 levels or degrees of MR
Common Law
General Intent (GI)
Intent to do something that is the likely outcome of one’s actions
E.g.: if D shoots a gun in P’s direction, then the law will infer that D had a GI to shoot/hit P
GI is required for battery
Specific Intent (SI)
When D acts to achieve a specific purpose, regardless whether the purpose is actually achieved or not

Crimes for which SI is required
Assault: D must specifically intend to hit/batter victim
Theft crimes: D must specifically intend to deprive owner of property permanently
Criminal Negligence
Unconscious creation of an increased risk of harm
MR: Model
Penal Code (MPC)
Modern Penal Code MR terms provide contrast w/, & some explanation of, Common Law MR terms
MPC is attempt to systematize/rationalize traditional (i.e. CL) concepts of criminal law
(No CL equivalent, but usually satisfies crimes requiring MR of GI)
D has conscious desire to produce the prohibited harm (e.g. to kill or strike another person, to take & carry away another’s property)
D is aware or knows that D’s conduct may LIKELY CAUSE prohibited harm, but D does not specifically or necessarily intend the specific harm/consequence
E.g.: firing a gun into abandoned building & hitting a transient who happened to be there;
setting fire to an unoccupied building & injuring the firefighters who come to put out the fire (b/c you know firefighters will likely come)
D “consciously disregards substantial & unjustifiable risk…[such that] its disregard involves a gross deviation from the standard of care that a law-abiding person would observe in D’s situation.”
E.g.: mother while driving takes BOTH of her hands off of the steering wheel to comfort the crying baby in the back seat
D “should be aware of substantial & unjustifiable risk…[such that] failure to perceive [that risk]…involves gross deviation from the standard of care that a reasonable person would observe in D’s situation.”
E.g.: mother while driving takes her eyes off of the road while trying to comfort her crying baby in the back seat
Note: criminal negligence is inattentiveness, so less culpable;
recklessness is indifference, so more culpable
D’s AR & MR must occur simultaneously (precisely at the same time) for a crime to be committed
If either element precedes the other, then no crime is committed
Concurrence is automatically lacking if either one of the elements (AR or MR) is missing
D takes coat
AR--takes coat
No MR-- takes it thinking it's their own
MR-- takes coat thinking it's another's
No AR- it's actually theirs
AR-- D takes another's coats, thinking it's theirs
MR-- but after realizing they took someone else's coat, D decides to keep it
No Concurrance
D’s voluntary act must in fact cause V’s harm
E.g. 1: D shoots V intending to kill V, but unknown to D, V was already dead (no harm)
E.g. 2: D gives V a 24-hr. acting poison, but before the poison takes effect, V gets killed in auto accident (no harm, but D might still be prosecuted for attempted murder)
Exception: if D takes “substantial steps” toward the crime but ultimately fails, then D may be guilty of an “attempt” crime (see attempt/inchoate crimes below)
E.g.: bank robbers were in a car all suited up to do a job; but their driver could not locate the bank; later, arrested & convicted of attempted bank robbery, even though they never even entered the bank
Q. is whether “substantial steps” have been taken toward committing a crime (this is Q. of fact, not law, for fact-finder)
Specific intent of theft-- to deprive owner of property permanently. Even if prevented from bringing back, doesn't mean don't have intent to. But if jury does infer intent not to return from fact that didn't return, wouldn’t be illogical. Could infer, up to fact-finder.

Several possible intents of Gordon
Use temp and not bring back
Use and relinquish and not bring back

Evidence that Gordon didn't intend to bring back
Abandoned first car and third car
Gordon's statement to court that just wanted to get the hell out of the area

Can only estb. intent based on what D says and does

Question usually on appeal (for jury trials): is there sufficient evidence to support jury's conclusion/ruling?
Knowingly-- LIKELY, high probability of the harm (closer to 70-80%). Higher risk, could be less harm.
EG. Shooting at crowd
Could be low risk, but serious harm. Low risk, high harm.
EG trying to shoot apple off someone's head if decently good shot.
Motive NOT a factor in crime, just shows that there's a desire to carry out the intent. INTENT is different from MOTIVE.
EG. Intent of mother who steals for starving child and intent of drug addict are the same.
Motive could element in establishing MR
Has to be voluntary (AR)-- if Tim has a reflex of shooting at ppl, none. If he's aiming at you, could be reckless, knowing, or specific, or general.
EG. Shooting bullet into air. No good can come of it, risk is unjustifiable. Harm would be very great.
Negligence-- no intent, can't be intentionally careless.
EG Under .08% alcohol
Law-abiding vs Reasonable-- Law-abiding more narrow-- to know law then violate it.
Also, not always unreasonable to break law (if situation dangerous, immoral, etc).
Could still be subject for conversion, tort equivalent of theft
Could be civil laws requiring to return and there's criminal laws if person asks for it back
Conversion = depriving owner of use of it. EG. Joyriding for 15 mins or car out of garage might not, but for 5 days might.
No Concurrance
Substantive Crimes
Inchoate Crimes
(1) intentional causing of an
(2) unjustified, harmful, or offensive
(3) touching of (or making contact w/) another person’s body
General Intent (Common Law); or knowing or reckless (MPC)—
i.e. intent to touch harmfully or make contact w/ another’s body
(but, acting recklessly is enough, even if did not specifically intend to hit V)
Unjustified: i.e. w/out legal justification (may be justified under self-defense)
Offensive or harmful: sufficient to cause either physical harm (e.g. pain, bruise, broken bones) or fear (beyond just being personally offended or not wanting to be touched [objective, not subjective, standard applied])
harmful touching or making contact w/ body
- Touching
V’s awareness of D’s touching/contact at the time is irrelevant
Issue is whether V was actually touched, not V’s knowledge or awareness of the touching
V must have received some physical injury (e.g. bruise, cut, broken bone)
E.g.: D kicks V while V is unconscious—D is guilty of battery
Touching/contact can be achieved indirectly…
By using an instrument or object
E.g.: striking V w/ stick, throwing rock, firing a gun, sicing dog on P—all are sufficient touching/contact element for battery
By causing V to make contact w/ something
E.g.: digging hole in ground (so that V falls into it), or swiping away chair just as P is about to sit in it—both satisfy touching/contact element of battery
(1) intentional placing of another person
(2) in reasonable apprehension or fear of
(3) an immediate; unjustified, harmful, or offensive
(4) touching of (or making contact w/) the person’s body
acting to put another person in fear or reasonable apprehension of an immediate touching/contact
(2) Specific Intent to commit a battery (i.e. to hit another person)
Assault is basically an attempted or failed battery (criminal rule) ---Assault is not necessarily an attempted battery, because may not have MR/intent to touch them. Attempted battery IS an assault (as long as person is conscious).
If V sees the battery as it happens, then assault automatically follows, b/c fear or apprehension is met
Apprehension or fear: D must appear to be able to cause a harmful touching, & thus cause the victim’s fear/apprehension (“reasonable person” standard is applied)
Unjustified, offensive, or harmful: same as for battery (objective)
(1) unlawful taking & carrying away
(2) of another’s property
(3) w/out the owner’s consent (against owner’s will)
(4) w/ the (specific) intent to deprive the owner of the property permanently
Note: theft is lesser included offense to robbery
Specific Intent (Common Law) or purposefully (MPC)
Unlawful: i.e. w/out justification (e.g. not rightfully taking back your own property or property owed you)

W/out consent: owner cannot have consented to initial taking & carrying away of property (no concurrence)

another’s property: property cannot belong to D, or else not theft (cannot steal from or deprive oneself)
Person from whom property is stolen need not be owner of the property
Some (i.e. any) physical movement is required (don't have to actually carry it away)
Shoplifting scenario: just b/c shoplifter placed goods in coat pocket, must still prove that D intended to steal goods (Q. of fact: usually after D walks out of store)
D must intend to deprive owner of property PERMANENTLY (simultaneous w/ D’s taking)
E.g.: joy-riding is not theft, if D intended to return the car afterward (e.g. State v. Gordon)
(1) unlawful taking & carrying away
(2) of another’s property
(3) w/out owner’s consent (against owner’s will)
(4) from another’s person or presence
(5) by use of force or threat of force
(6) w/ the (specific) intent to deprive the owner of the property permanently
AR, MR, & concurrence: same as for theft
i.e. property is taken from V’s body or else w/in V’s immediate sight
D must use either (physical) force or threat of force (e.g. menacing V w/ gun/knife [e.g. Gordon] or threatening w/ words) to effect taking the property
If the force or threat did not cause the taking—e.g. V dropped his wallet, which D then caught and took—then no robbery
If V voluntarily (i.e. w/out coercion) hands over property to D, then no robbery (BUT this is not the same as being coerced by force or a threat)

Victim has to feel threatened. If don't because they know gun is unloaded even though D thinks it's loaded, wouldn't count. If can't read threat because illegible, wouldn't feel threatened.
Sob story or asking wouldn't count
Some jurisdictions say that if the taking and carrying away wasn't because of force/threat of force, just because you grabbed it away from them, then it's not a crime.
taking “substantial steps” toward committing the substantive crime, w/out actually achieving it
E.g.: attempted burglary, murder, theft, arson, etc.
No such thing as attempted assault, b/c assault is already an “attempted battery”
Whether “substantial steps” have been taken is a Q. of fact for fact-finder that depends on the specific circumstances in the case
Specific Intent to commit the substantive crime is required (more difficult to prove Beyond a Reasonable Doubt)
Rationale: b/c the substantive crime was not accomplished, law requires applying a higher standard of proof for attempt crimes to make sure that the conviction is correct.
In other words: ALL inchoate crimes are SPECIFIC intent, higher level of MR bc DON'T have AR, due process protection, raise standard of evidence (could have been brainwashed, under coercion.)
D’s intent (to commit the substantive crime) must coincide w/ D’s substantial steps taken
This element is obviously lacking for attempted crimes, b/c the attempt to commit the crime failed (the substantive crime was not realized)
Merger Doctrine
Attempt crimes, if proven at trial, merge into their completed, substantive crime
Legal significance of this is that one cannot be convicted of both a substantive crime & of its attempt, only one
Exceptions: pay attention to what inchoate crimes merge into their substantive crimes (see below)
Usually “throw the book at them”-- charge them with every possible offense because can't try again
AR: asking, hiring, or encouraging another to commit a crime
MR: SI to solicit another to commit a crime
Irrelevant that solicitee refuses: once D solicits another person to commit a crime, D is guilty of solicitation [to ____] regardless whether solicitee accepts or rejects the solicitation
Merger doctrine: solicitation, if proven at trial, merges into conspiracy (below) or its substantive crime
AR: agreement by 2 or more persons to commit a crime
MR: SI by each person (co-conspirator[s]) to agree w/ another to commit a crime
Defense: member of conspiracy must inform co-conspirators of intent to abandon the criminal project; some jurisdictions require thwarting of the criminal project
NO merger doctrine: conspiracy does NOT merge into its substantive crime
Conspiracy (to commit ____) is its own separate crime
But solicitation does merge into conspiracy to commit a crime OR(like a criminal attempt) into the substantive crime itself
Substantive Crimes
(Affirmative) Defenses to Crimes
Unlike in a civil trial, a criminal D need not raise any defenses to escape conviction
--Presumption of innocence places burden of proof (BRD) on the prosecution
But if D raises a defense to a crime, then prosecution must ALSO rebut that defense in ADDITION to proving the other elements of the crime
Note: showing that one of the elements of a crime is missing also, in effect, serves as a “defense” to the crime (but that is not an “affirmative” defense, which is asserted independently of establishing the crime itself)
Even if acquitted because of defense, could be sued in civil court.
Justification Defenses
Excuse Defenses
Rationale: some behavior that is technically a crime may have been done out of a socially desirable motive or goal, & therefore should not be punished
Self-defense & defense of others
(1) D cannot be aggressor (i.e. person who attacks first)
(2) Once attack is repelled (i.e. aggressor backs down/off), D cannot then attack in retaliation (or else D becomes aggressor)
(3) D must respond to attack with reasonable force (but see Wanrow below)
Defense of property
D can never use deadly force to protect mere property (i.e. apart from protecting human life or against human harm) (Katko)
Necessity/choice of lesser evil
(1) D must face situation threatening immediate harm
(2) D cannot have created the emergency
(3) D had no reasonable opportunity to avoid harm
(4) Harm committed by D is “less than” harm avoided

Basically, circumstances were such that committing the crime was actually preferable to any other reasonable, legal alternative

E.g.: family gets stranded in the mountains in winter, so breaks & enters into another’s home instead of starving/freezing to death
Rationale: D’s guilt for a crime is excused b/c D was not entirely responsible for D’s behavior
Involuntary intoxication
D completely exculpated for any crime committed while involuntarily intoxicated
E.g. 1: D unknowingly drinks spiked punch at party
E.g. 2: D takes prescription medicine & experiences severe side-effects, but had no reason to know of such side-effects
very rare, very controversial criminal defense
Legal insanity ≠ medical insanity: issue of whether D had sufficient MR is not resolved just b/c expert witness (e.g. psychiatrist) testifies that D is/was mentally insane at the time crime was committed
D is excused b/c D was forced to commit crime either b/c of another person or b/c of circumstances outside of D’s control
Similar to necessity defense, but (1) action lacks any social benefit & (2) coercion is effected by another person (rather than a situation or circumstance)
Coercion/duress defense traditionally not available for homicide (i.e. killing), but available for most other crimes
For elements needed for coercion defense, see U.S. v. Scott (omitted)
8p Substantive Criminal Law
Offense = not wanting to be touched. Not relevant for our purposes
Tort Battery diff from Criminal in that doesn't have but be psychical injury, technically could sue someone for just brushing your cheek
Specific intent = placing of another. Bc any number of things could do to cause this (pull out gun, etc)
Common law and MPR define MR very differently – MPR more detailed and precise. Common law says that only one of these elements is the MR.

For MPR, explicitly states that FOR EACH OF THESE ELEMENTS (each material element), you have a MR level basis (eg, knowingly for each element-- knowing that carrying something away, know(think) that it's their property, have to know(think) owner didn't give consent)
Common Law vs MPC
Electronic funds theft and ID theft had to be written to define as crimes. First person who committed got away bc not crime at time (unless brilliant lawyer or generous jury).
V must either see or sense/feel the property being taken
EG. Person = like ripping off jewelry. Presence = like pretense of Proat in case of stealing car.
Theft and Robbery essentially same crime, same level of MR. Battery and Assault two diff crimes, two diff layers of MR.
EG. Plotting/Planning-- talking about it with another person, drawing out map
Don't have to actually have to commit crime
Society wants to encourage
Reasons due to some human weakness, understandable but not socially desirable
Ultimatum of killing someone else or one will be killed, not considered lesser of two evens because equal-- most jurisdictions would not allow this to be a defense (some might).
If don't intend to use deadly force, but person ends up dying, depends on factfinder.
Purpose of Civil Procedure
“The principal objective of procedural law is to give the parties to a dispute an equal & fair opportunity to present their cases to a non-prejudiced & convenient tribunal. …[B]oth parties should feel that they have been fairly treated.”
Constitutional requirement of due process: “ ‘[DP] of law’ is the Constitution’s most basic notion of procedure. …The phrase refers most simply to a right to be heard [i.e. defending oneself against a claim at a hearing].”
The bare minimum for satisfying DP is providing a hearing where one has the “opportunity to be heard”
Giving Notice & Hearing
“No better instrument has been devised for arriving at truth than to give a person in jeopardy of a serious loss notice of the case against him and an opportunity to meet it. Nor has a better way been found for generating the feeling, so important to a popular government, that justice has been done. …[A] democratic government must therefore practice fairness; and fairness can rarely be obtained by secret, one-sided determination of facts decisive of rights.”
— Justice Felix Frankfurter
Structure - Adversarial Proceedings
Common law (C/L) legal system is structured on adversarial proceedings
Litigants “fight” by presenting evidence & law in the best possible light to their own side
J serves as neutral party, like referee or umpire who does not takes sides but serves only to ensure that “rules of the game” are followed
Adversarial system is premised on the rationale that a “fair fight” will most likely lead to the correct (i.e. best, most just) decision or outcome
Consult & hire attorney
P files complaint w/ court
(pleadings initiate the lawsuit)
D is given notice of lawsuit via service of process & files answer to P’s complaint
(Formal) discovery stage commences
Pre-trial motions
Motions to dismiss P's lawsuit (aka demurrer):
Purpose: to disclose all relevant facts about a case
P’s attorney does informal discovery; contacts D
Settlement w/ D is attempted out-of-court; if unsuccessful, then…
Lawyer’s Fiduciary Duty
Lawyers owe clients a fiduciary duty of care
L must not only avoid harming C, but must actively seek C’s “BEST INTEREST” (i.e. only w/in the context of the attorney-client relationship)
A fiduciary duty is the highest standard of care imposed by law
Few other professionals are required to act as a fiduciary for their Cs (e.g. only administrators of estates & trusts, NOT accountants, Drs, etc)
Client can always fire lawyer at-will for any or no reason, but must still pay for reasonable costs of services rendered (i.e. quantum meruit).
Attorneys can't stop defending you (once they take you on).
The purpose of discovery is to ensure that both sides know all of the relevant facts & legal issues in their dispute
Rationale: justice is most likely achieved when the facts & issues are fully known & adjudicated (not by trickery or deception)

Although parties may want to hide facts that hurt their position, not disclosing relevant info. upon the other side’s request may bring sanctions from the court
E.g.: J may impose a fine or possibly exclude that party’s evidence from trial (which can be very damaging to one’s case)
Unlike in courtroom dramas, surprise witnesses are not allowed

Because of the underlying purpose of discovery, trials are basically “staged performances” that follow a “script”
No surprises! (if that happens, then possibly a mistrial)
Motion for summary judgment (if facts not disputed)
Attack the pleading’s format (e.g. language is vague).
J usually lets P amend pleadings to correct for format
Challenge court’s jurisdiction (SMJ or PJ)
Attack service of process as improper/inadequate
Dismiss case “for failing to state a claim upon which relief can be granted” (e.g. Du Pont)
Made by either party when there is “no genuine issue of material fact” (i.e. no facts are disputed)
Dispute is resolved by J w/out a trial (b/c none is needed)
Trial Procedures
Jury selection (voir dire: “to speak the truth”) done by attorneys
Opening statements made by attorneys
Presentation of evidence
Closing statements/arguments made by attorneys
Unlimited challenges for cause (e.g. prejudice, bias)
Limited peremptory challenges (cannot base on race)
P presents first, then D
Direct examination: questioning one’s own witnesses
Cross-examination: questioning opposing side’s witnesses
Redirect examination: occurs after cross-examination (rare)
Motions During Trial
Motion for nonsuit
Requested by D after P has finished presenting P’s evidence
Motion granted if “no reasonable person could find in favor of P after considering the evidence in its most favorable light to P”
In effect, same as demurrer/motion to dismiss, but requested after trial has begun
Motion for directed verdict
Requested by either party after D has finished presenting D’s evidence (i.e. after both sides have presented)
Motion is granted before decision goes to the jury if:
(1) there is “no genuine issue of material fact” (i.e. no facts are disputed); AND
(2) only one outcome could be reasonably inferred from the facts
In effect, same as motion for summary judgment, but requested at end of trial rather than before
Post-trial Motions
While a jury verdict is rarely overturned, jurors’ conduct is subject to some important restrictions:
Cannot bring in their own evidence or do their own investigation
Must conduct themselves appropriately (e.g. cannot be drunk)
Must follow judge’s instructions (e.g. not to discuss case w/ others)
Motion for judgment notwithstanding the verdict (JNOV)
Requested by the losing party after jury has given its verdict. Basically saying jury was irrational-- driven by passion, prejudice, emotion, etc.
Granted when J believes “no reasonable person could support the verdict”(i.e. the evidence cannot possibly support the verdict). Jury decided incorrectly bc weren't looking at facts and law at they should have been (reasonably).
In effect, same as motion for DV, but requested after the verdict. A.k.a. motion for judgment as a matter of law (JMOL)
Very rarely granted (tho frequently requested). Why? Bc so much trouble, time, energy, etc has gone into jury trial. Also bc judge doesn't want to undermine jury. Judge will often just say to bring it up on appeal
Motion for a new trial
Trial J has broad discretion ("in interest of justice") in granting a new trial (which follows J’s declaration of a mistrial), but it is extremely rare
Granting a new trial (following a mistrial) is considered an “extreme/extraordinary remedy” used only as a last resort when there is a “fundamental defect” in the trial proceedings.
Want to avoid bc waste of time, resources (speed and economy). Lawyers want to avoid mistrial bc their arguments have already been revealed.
Some reasons that might warrant granting a new trial
New evidence discovered after the trial has begun
Jury misconduct (eg. talking with outside ppl, before deliberation, with media)
If jury is unable to reach a verdict
For other reasons “in the interests of justice”
Motion for relief from judgment
Some reasons for granting relief from judgment (see FRCP 60):
Primarily because of clerical error in the judgment (eg. typo, wrong damages award printed).
New evidence discovered (which was not previously discoverable)
Judgment was induced by fraud or mistake
“[A]any other reason justifying relief”
Judgment & Execution
A judgment is awarded in favor of the winning party at the end of the trial & after the J has ruled on all post-trial motions
But the reality is that the loser in a legal dispute is not always willing to comply w/ the judgment - In about 45% of cases D is not willing to pay up.
If the judgment debtor (i.e. loser) is unwilling to pay the award, then the judgment creditor (i.e. winner) may seek a writ of execution from the court clerk directing the sheriff to seize & sell the judgment debtor’s property (car, boat, NOT house) to satisfy the judgment award
Liens placed on the judgment debtor’s real property & garnishment of the judgment debtor’s wages (govt takes wages automatically) are other devices to ensure that judgment creditors receive their award
Post Trial
Trial Process
(Now called Judgment as a Matter of Law)
Most of litigation done through paperwork-- filing motions back and forth
Importance of Civil Procedure
Ch. 5 - Civil Procedure
Functions of Tort Law
3 categories of torts
Intentional torts: actions that intentionally cause harm to a person’s bodily integrity, reputation, or property
(Tort of) negligence: unintentionally causing harm by failing to act reasonably or by creating an unreasonable risk of harm (NOT tested)
Strict/absolute liability torts (NOT tested)
A tort is a civil wrong, other than a breach of contract, for which P may file a lawsuit to recover damages
Primary function of tort law is to compensate Ps for harm caused by others’ unreasonable conduct
Evolving Nature of Tort Law
While much of tort law, like criminal law, has been codified in statutes, tort law, unlike criminal law, is still governed primarily under traditional C/L rules

Basically, Js can create/recognize new tort causes of action (legal claims)
Different from criminal law, which requires that a criminal statute precede prosecution for a crime
Punishment for crimes, ex post facto, is prohibited
But liability for torts may be imposed after the fact (e.g. Du Pont v. Christopher, Katko v. Briney)
Intentional Torts (IT)
ITs deter willful misconduct or conscious & voluntary acts intended to cause harm to others
ITs do not require D to have known that D’s actions constitute a legal tort, but only that D acted consciously & voluntarily
Berthiaume v Pratt- Tort Battery
Issue (Procedural)
whether trial judge erred in giving a directed verdict instead of letting the jury decide
Issues (Substantive)
whether D had committed any torts against B by raising B’s head onto toweling (& taking B’s photos—privacy)
jury could find that B had withheld his consent from D’s actions
No implied consent b/c doctor-patient relationship had already ended before D’s complained-of actions
No express consent had ever been given by either B or B’s family members for the doctor’s actions
Other evidence showed B’s lack of consent: B’s gestures & other behavior; statements by B’s wife to D (that B didn’t want pic taken)
Vetter v Morgan - Tort Assault
(1) intentional causing of [EITHER]
(2) a harmful or offensive touching OR
(3) immediate apprehension of such touching AND such touching results
D must INTEND either (1) to touch/make contact OR (2) to cause apprehension (i.e. awareness, fear not required) of such touching/contact
E.g.: D swung arm & hit P in the nose b/c of a seizure (or b/c suddenly jolted forward while standing on a bus)—D is not liable for battery
But if D DID intend to do either of the above, then D is liable for battery, even if D did not intend to cause P any physical harm
E.g.: D just wanted to scare P for fun, & pretended to take a swing at P, who at the last moment moved right into D’s fist—D is liable for battery
Doctrine of Transferred Intent
wants to hurt OR

wants to scare
Unintentionally hurts
C can still sue for negligence
Only tort law, not criminal law
Argument For: Intending to hit someone

Argument Against: Legal fiction-- how can A intend anything in relation to C, if don't even know C exists
Battery requires “substantial certainty” that D’s conduct will achieve either (1) actual touching/contact OR (2) apprehension of such
Applies to “toxic torts” & other torts where causation is uncertain
In other words, touching/contact or apprehension of such caused by D’s recklessness or negligence is NOT sufficient for battery
E.g.: Soccer player, while kicking goals near crowd of people on the field, kicks ball into the goal post; ball ricochets & hits someone in the crowd—soccer player is NOT liable for battery
Legal incompetents (e.g. minors or persons who are mentally ill, disabled, or insane) can still be held liable for battery if P can show that D could & did form the intent to cause the touching/contact
To determine whether the touching/contact is harmful or offensive, an objective (i.e. reasonable person) standard is used
E.g. 1: Although in the U.S., shaking hands is not considered harmful or offensive, but kissing strangers on the lips is
E.g. 2: BUT, in some parts of Europe, greeting people w/ a kiss on the lips is customary; in some East Asian countries patting a child on the head is considered offensive
P’s awareness of D’s touching/contact at the time is irrelevant
Issue is whether P was actually touched, not P’s knowledge or awareness of touching
E.g.: P, while unconscious, is molested by D—battery
Touching/contact can be achieved indirectly…
(1) By using instrument or object
(2) By causing P to make contact w/ something
Touching need not cause injury: ANY contact, however slight, is sufficient for tort battery (unlike criminal battery, which requires harm [e.g. cut, bruise, broken bone, pain])
E.g. 1: 90-lb. woman swings her fist at big, burly man who doesn’t even flinch from her punch—battery
E.g. 2: injured person lies on ground; rescuer gently places pillow under person’s head to cushion it; if injured person did not consent to rescuer’s touching (b/c unconscious)—battery.
Exception: consent by injured persons will be inferred in emergency situations, but only w/in the
reasonable scope of the rescue/treatment (e.g. rescuer cannot commit gross negligence)
E.g.3: dentist, while extracting P’s tooth, sees another tooth requiring extraction, & removes that tooth as well (rather than have P undergo a separate procedure to extract)—battery (b/c P did not consent to the other extraction)
P’s physical body need not be touched
Touching clothing suffices, or snatching/knocking an object out of P’s hands, touching anything “closely associated” w/ P’s body is sufficient for a battery

E.g.: P, waiting to be served at a club, was accosted by D, who forcefully snatched plate out of P’s hands, & yelled that P could not be served b/c he was “a Negro”; P testified at trial that “he was not actually touched, & did not…suffer fear or apprehension of physical injury; but…was highly embarrassed & hurt” —court held D liable for battery against P (Fisher v. Carousel Motor Hotel [1967])
Comparison with Criminal Battery
Once D’s intent is established—either to touch or cause apprehension of such—D is liable for ALL resulting harms to P, even if the extent of P’s injuries was completely unforeseeable to D or any reasonable person
Even if P suffers no actual physical harm or injury from the touching/contact, court will still award nominal damages to establish P’s legal right

P can give EXPRESS/EXPLICIT consent to D’s touching/contact either verbally or in writing
E.g.: patient signs medical consent form before undergoing treatment

P can give IMPLIED/IMPLICIT consent through actions/behavior that a reasonable person would interpret as manifesting consent
E.g.: patient holds up arm to doctor or nurse for an injection (P cannot later claim that P withheld consent to the injection)
P’s consent is only effective w/in its PROPER OR REASONABLE SCOPE: if D’s touching/contact goes beyond what P consented to, then battery
Flying tackles exceed the reasonable scope of flag football
Ear-biting exceeds the reasonable scope of boxing
BUT, hard fouls in basketball are not necessarily batteries b/c they are an accepted part of the game (for which player will receive a penalty)
WHETHER P consented to D’s touch & what was scope of P’s consent are questions of fact determined by the fact-finder
Tort Battery
(1) intentional causing of

(2) a reasonable apprehension of

(3) an immediate or impending

(4) harmful or offensive touching/contact
Note: below definition, slightly different from Schubert’s, is loosely based on Rest. Torts § 13
Intent for tort assault is the same as that for tort battery:
Note: assault & battery are 2 separate torts-- any combo is possible. A but not B. B but not A.
They often accompany each other, but one does not necessarily implicate the other
Whether D is liable for assault and/or battery depends on facts of the case
YES—Qs. of fact should have gone to a jury
whether P’s claim of assault against D involved Qs. of fact that should have been submitted to a jury rather than decided by a summary judgment
“record is sufficient to support inference that [D’s] threat & the acts & circumstances surrounding it could reasonably put [P] in apprehension of imminent or immediate bodily harm”
(1) D verbally threatened to take P from her van
(2) D’s behavior was so extreme that P could reasonably have believed that D would immediately carry out his threat (i.e. given D’s actions & the surrounding circumstances)
(3) D had apparent ability to harm P: proximity of vehicles, late at night (so no rescuers or Ws), P alone, D with 2 other men
Counter-evidence: P was protected w/in her vehicle, could escape
P is NOT required to personally/subjectively feel fear or anxiety (contrary to Schubert)
So long as P is aware of (e.g. sees or hears) an impending (i.e. about to happen) touching/contact, then the apprehension element is satisfied
Different from criminal assault, which requires V’s fear
P must be AWARE of the impending touching AT THE TIME, or else no assault
E.g. 1: someone throws a boomerang, but P does not think boomerang will hit him, so P walks away & gets struck in back of head w/ it—no assault (but battery)
E.g. 2: P is startled & jumps when P hears someone nearby discharge a gun—no assault, unless P saw the gun pointed at him when it was fired
E.g. 3: D throws hatchet at back of P’s head but just misses actually hitting P; P hears something whiz by his ear, then sees the hatchet buried in the wall in front of him; P suddenly realizes what happened & faints from shock—no assault, b/c apprehension occurs later
Note: P cannot claim assault for someone else’s battery
D must REASONABLY APPEAR to P to have capacity to touch or make contact w/ P
If P knows that D cannot touch him, then apprehension element is missing
E.g. 1: D aims gun at P, but P knows gun is filled w/ only blanks b/c P replaced bullets himself—no assault
E.g. 2: D aims & pulls trigger of a realistic-looking toy gun at P, who believes gun is real & loaded—assault
Imminent - More accurately “imminent,” meaning soon or else at that very moment, not in future
Tortfeasor’s words, when ACCOMPNYING AN ACTION, can indicate an intent to commit an immediate touching
E.g.: saying “I’m going to kill you!” as tortfeasor reaches into his pocket (seeming to pull out a weapon) will satisfy immediacy requirement for assault
But mere words cannot by themselves constitute a tort assault
Future - BUT merely verbal threats of FUTURE harm, no matter how threatening, are insufficient by themselves (i.e. w/out some accompanying action) to satisfy the “immediacy” or impending requirement for assault
E.g. 1: D says “I’m going to get my gun & shoot you!”—no assault
E.g. 2: D says “I’ve got a gun on me, so you better run or I’ll shoot you!”, but does not pull out gun—no assault
E.g. 3: D pulls out gun, points gun at ceiling, & says, “You better get out of here or else I’ll shoot you!”—no assault
E.g. 4: D aims at P & says, “If you’re not out of town in 5 mins., I’m going to find you & kill you!”—no assault
Conditional Threats
Immediate - Verbal threats of immediate harm, even if conditional, DO satisfy the immediacy requirement for assault
E.g.: “Your money or your life!”—b/c D has no right to kill P, D’s immediate threat, though conditional, is sufficient for liability for assault. Conditional/ultimatum is not a real choice bc D has not right to what they're theatening for (eg. property, hurting someone else).
If trying to get own stolen property back, can't kill, but might be able to take other action to get property back (eg threat to punch). Would be assault, but might be a defense.
Future - But conditional threats of future harm do not satisfy immediacy requirement of assault
E.g.: “I’ll kill you if you don’t go home, pack up, & leave town”—no assault (Dickens v. Puryear [1980])
Negating - Words can also negate an action that might be reasonably perceived as an (immediate) assault
E.g. 1: D aims gun at P & says, “If I weren’t afraid of going to jail, I’d shoot you.”—no assault
E.g. 2: D aims gun at P & says, “I’m giving you 5 mins. to leave town. If you’re still here after that, I’m going to kill you!”—no assault
Ultimately, whether D’s words and/or actions constitute an assault on P is a question of fact determined by the fact-finder
OBJECTIVE standard -
Objective standard is applied to determine whether a “reasonable person” would find D’s conduct offensive, NOT a SUBJECTIVE standard of whether P personally & actually felt potential touching/contact was offensive
Exception: if D knew P had a SPECIAL SENSITIVITY & exploited it, then P’s OWN subjective standard is applied
E.g.: In U.S. reasonable persons do not normally find handshakes offensive, but if D knew P had a phobia of other people’s germs, then extending D’s hand to P for handshake could constitute an assault because of P’s special sensitivity that D knew of & exploited
As with battery, the main defense against tort assault is that P consented to the assault
E.g. 1: P says to D, “Take your best shot,” inviting D to punch him; if a reasonable person would have taken P’s invitation seriously, then P has consented to D hitting him (but scope?)
E.g. 2: P says to D, “Go ahead, point the gun at me. But you better not pull that trigger.”—P has given a very narrow scope of consent for D to aim a gun at him, but not to shoot

Damages recovered for assault depends on severity of the harmfulness or offensiveness of the threatened touching or contact
Tort Assault
Importance of Tort Law
Ch 11a - Intentional Torts
Post-Midterm Notes from Introduction to Law
EG. if prove that kid or incompetant has intent (by bringing in psychologist, parents, etc.) EG. case where kid pulled chair out from under adult, sued kid. Can't sue parent for kids actions themselves, can only sue for negligence in not supervising kid.
Objective/US standard of offense, not other cultures. EG thumbs up offensive in other cultures or touching babies heads.
Common scenario at doctors. EG. removing additional tooth when under anesthesia w/o consent. EG cancerous penis case. Even when potentially life threatening, need consent.
ANY peripheral/indirect touch constitutes as, anything "CLOSELY ASSOCIATED" with body-- EG. purse, cutting/ripping off jacket, snatching plate, etc.
Race may be taken into account, but not really the basis of offense. Might not be offensive to reasonable person.
Nominal damges-- in name. Might give nominal award for technical batteries with no real damage/harm. "You won!" Mostly to uphold legitimacy of legal system.
Cases in which P’s consent will be inferred (implied):
Emergency & rescue situations where P is in danger or unconscious. Unless there's gross negligence like pulling person our of burning car by head.
Doctor-patient relationship (e.g. Berthiaume v. Pratt, MD)
Cultural context may make law more subjective.
"THE CULTURAL DEFENSE"-- cultural evidence. EG in some countries touching babies/child's genitals acceptable. Neighbor saw pic of dad touching boy, orginally convicted, reversed bc of cultural context.
Intent for Assault and Battery are THE SAME
Not just that she was afraid, but that ANY reasonable person would feel afraid and react the same in the situation
Summ judgement = no dispute over facts. Saying that there was-- eg. alone at night, could have broken in VS safe in car. Disagreement over whether or not ran her off road.
Spitting on car = battery, bc touching
Final Exam
Not all assaults are attempted batteries, but all attempted or failed batteries are assaults (EVEN IF PERSON IS UNCONSCIOUS)
Intent: GENERAL -- Knowing or Reckless
(NOT Specific)
Intent: Specific (Common Law) -- Purposeful (MPC)
Has to be targeted at specific person
(1) Place you in reasonable fear or apprehension
Intent: Specific
Intent: Specific
(of AR & MR)
If D did NOT INTEND do to either of the above, then D cannot be held liable for battery, even if D happened to strike someone in the face
A.k.a. eggshell-skull/“glass jaw” rule
Rationale: “D takes his V as he finds him” (b/c want to discourage intentional torts)
Primary defense to battery is that D acted w/ P’s CONSENT, either express or implied
E.g. 1: D-surgeon, while doing an appendectomy on P, sees a tumor on P’s stomach & removes it also—battery (b/c P’s medical consent applied only to appendectomy)
E.g. 2: sports—athletes consent to possible injury, but only w/in reasonable scope of the applicable sport
(1) Causing a harmful or offensive touching; OR
(2) Causing apprehension of such touching
D --> B --> A
Don't discuss D's actions against A

Can't consent to a crime (EG. dueling)

If can prove higher level of MR (specific), have proved lower (gen), but have to state this/erfer too

Can put ppl suing each other like this, but more important that get ppl right
B v. A (State v A)
Tort assault
Tort Batt
Crim Ass
Crim Battery

If there's no crime, HAVE TO STATE WHY, write out reasoning

Apprehension = being conscious of, aware of, NOT FEAR

Attempted crimes = AR of substantial step, MR of SPECIFIC intent. Battery is a GENERAL intent crime.

Don't need to cite any cases

Darla always acting with specific intent

Analyze assault, battery, attempted battery (2nd def of assault)
Limits on Prosecution
Why it's wrong
Therefore, society (via govt.) finances the criminal justice system (through our taxes) & is responsible for preventing, investigating, prosecuting, & punishing crimes
Deadly force is allowed only if D is attacked with deadly force

Defense of other applies only if the other (i.e. the person being defended) could have claimed self-defense (see above)
The content of this Prezi is based on the undergraduate law course Political Science 311: Introduction to Law and Judicial Process, taught by Professor Paul Chen at Western Washington University in Fall Quarter 2011. The content draws heavily from Prof. Chen's Powerpoints, as well as my class notes and assigned legal cases. Much of the language is taken directly from the Powerpoints or from Prof. Chen's lecture. All credit for the content goes to Prof. Chen.
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