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Criminal Law

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Gregory Kimble

on 11 December 2014

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Transcript of Criminal Law

Criminal Law
The elements, the elements, the elements
Elements of a Crime
(All 5 not always present & some are inherent
Homicide Crimes
Pennsylvania Model (Traditional)
Assault, Sexual Assault, Etc.
Theft and Theftish Crimes
Preparatory/ Incohate Crimes
Preparatory/ Incohate Crimes Continued
Parties to a Crime
PARTIES TO A CRIME CONTINUED
Defenses
Actus Reus
MPC
A person is not guilty of an offense unless his liability is based on conduct which includes a voluntary act or the omission to perform an act of which he is physically capable
The following are not voluntary
a reflex or convulsion
movement during unconsciousness or sleep
conduct during hypnosis or hypnotic suggestion
movement that isn't a product of the effort or determination of the actor, either conscious or habitual
Actus Reus
MPC Cont'd
Liability for the comisison of an offense may not be based on an omission unaccompanied by action unless
the omission is expressly made sufficient by the law defining the offense; or
a duty to perform the omitted act is otherwise imposed by law
Possession is an act within the meanin of this section, if the possessor knowingly procured or received the thing possessed or was aware of his control thereof for a sufficient period to have been able to terminate his posession
Actus Reus
Status Crimes
Status crimes are not allowed, but one can be liable for acts committed as a result of or related to status
Robinson - "drug addict"
SCOTUS: Cannot have statutes criminalizing a status because it is crueal and unsual punishment (violates 8th amendment)
Powell - "public drunkenness"
SCOTUS: Upheld statute prohibiting the act of being drunk in public because it did not criminalize the status of being an alcoholic but the act of being drunk in public
Circumstances
enables the legislature to narrow the reach of a criminal statute
Ex. If a statute says "Bribery of a juror" it limits the bribery to a juror

Harm
The evil result of a crime
Varying degrees of harm come into play for asggining the type of crime and severity of punishment
Some crimes have merely a risk of harm (drunk driving, reckless endangerment)
Causation
Links conduct to harm. Prosecution must prove beyond a reasonable doubt that ∆'s Actus Reus causedharm
MPC - Policy based or legal harm
Not just "but for" causation, but whether it is fair to hold ∆ criminally liable
Independent Intervening Causes - *Break the chain*
Unrelated to ∆'s conduct and not foreseeable or intended
frees ∆ from liability
Dependent Intervening Causes - *Does not break chain*
Sufficiently related to ∆'s conduct to merit ∆ liable
Doctor worsens injury while treating
Except if Intervener is negligent (Doctor is drunk during surgery)
∆ still liable despite π's fragility
Mens Rea
Common Law
Specific Intent
Assault, first degree premeditated murder, embezzlement, false pretense, larceny, robbery, burglary, solicitation, conspiracy and attempt
Malice
Intentionally or with reckless disregard for an obvious, known risk (murder)
General Intent
Generally aware of the factors consituting the crime.
Need not intend specific result and can be inferred from actions
Strict Liability
Non-intent crimes. Act only
Statutory rape, DUI, lewdness, selling alcohol to minor, etc
Mens Rea
MPC
Intentionally/Purposely
Subjective: Inside the mind of the ∆
Knowingly
Subjective: Awareness that is practically certain (personal awareness)
Recklessly
Subjective: awareness of risk
Objective: risk is a gross deviation from the standard of care
Jury decides standard
Negligently
Objective: reasonable person would have been aware that the risk was a gross deviation from standard
Jury decides standard
When a statute has no mens rea, must be at least recklessness
Downward Inclusiveness
If you can prove one, you automatically prove the ones below
Mens Rea
MPC Continued
Transferred Intent
Intent to cause harm to one person, transfers to another if you accidentally hurt them
Ostrich: Deliberate Ignorance
Deals with "Knowingly"
Jewell Instruction: Government can prove that ∆ had knowledge, beyond a reasonable doubt, if:
Though not actually aware of a fact, ∆ had a high probability of awareness that facts existed
ignorance due to conscious avoidance to disregard info
Motive
Motive is merely evidence of intent.
Interrelationship Among Elements
The elements do not have to be timed perfectly
ex. ∆ does not show up ofr hearings but claims that he did not have the mens rea and actus reus at the same time. Court says that the two do not need to occur simultaneously.
No need to not consciously fail to appear at the same time the mens rea to do so occured
Homicide Crimes
Object of Homicide
Both killer and victim must be human
Traditional View: Victim must have been born alive
MPC: human being is a person who has been born and is alive
Some Jurisdictions include homicide of fetus
Definition of Death
Dead if either test satisfied
Irreversible cessation of brain function
Irreversible cessation of circulatory AND respiratory functions
1st Degree Murder (Malice Aforethought)
Premeditation
Willful: Intentional Killing
The killer's purpose was to kill another person
Deliberate: ∆ considered acts w/ a cool mind, capable of reflection
Premeditated
Advance planning/reflection, before killing
*Government must prove all 3 to prove 1st degree murder
Felony Murder
Malice Aforethought is satisfited if ∆ kills during the commission of a listed felony. Can be guilty of murder without intent to kill.
Killing could be an unintended accident
Traditional List: arson, robber, rape, burglary, murder
2nd Degree Murder
Felony Murder (Non-Listed)
Merger
Legislature id not intend for certian felonies to be predicate felonies to trigger felony murder
Ex. Manslaugher and involuntary manslaughter are not predicate felonies. If they were, every person who commits manslaughter would automatically be guilty of 2nd degree murder
2nd Degree Murder
Felony Murder (Non-Listed) Continued
Causation
Res Gestae Rule
Closeness in time and distance between the crime and homicide are a factor of cause
Some statutes extend it to include immediate flight after the felony
Killing by a non-fellon
Agency Theory (Majority)
Felon is only responsible for crimes commited by an agent of the felon
Proximate Cause Theory
Felon is responsible for all deaths that are reasonably foreseeable consequences of the felony
2nd Degree Murder
All have Malice Aforethought
Test
Is there Malice Aforethought?
No M.A. - Voluntary or Involuntary Manslaughter
Yes M.A. - Was it Willful, Deliberate, or Premeditated?
Yes - Murder 1
No - Murder 2
Yes M.A. - Was it a listed Felony?
Yes - Murder 1
No - Non-listed Murder 2
2nd Degree Murder
All have Malice Aforethought Cont'd
4 kinds of Second Degree Murder
Intent to kill
without premeditation and/or deliberation
Intent to do serious bodily harm
crime is not 1st degree because it lacks the willfulness necessary for higher punishment
Depraved Heart
So extremely reckless, that malice is implied
Extreme indifference to the value of human life
Abandoned or malignant heart
Acts imminently dangerous to another and evinces a depraved mid, regardless of human life
Non-listed Felonies
Voluntary Manslaughter: Heat of Passion
Killing in the sudden heat of passion with leagally sufficient provocation
No Malice Aforethought
Cooling Time
Required to be spontaneous and rash
Legally Sufficient Provocation
Must e of such gravity that it would cause a reasonable person to act rashly, from passion, rather than with calm reason
Allowed Acts
Slight batter or tresspass to property = NO PROVOCATION
Mere Words = NO PROVOCATION
Words AND Acts = MAY suffice, depending on circumstances
Informational Words - MAY suffice
Relevant facts sufficient for provocation
ex. spouse is having an affair
Involuntary Manslaughter
Killing is unintentional and there is NO Malice Aforethought
Misdemeanor Manslaughter
homicide during an unlawful act
homicide resulting from speeding
Criminal Negligence
Lawful act in an unlawful manner
significant departure from the conduct of a reasonable person
includes omissions when there is a legal duty to act



Second Degree Depraved Heart Murder v. Involuntary Manslaughter
Both are characterized by degrees of carelessness
Depraved heart - knew the risks, but ignored them
Involuntary Manslaughter - I should have seen the risks, but failed to do so
2nd Degree Murder
Felony Murder (Non-Listed) Cont'd
Select Felonies
Felonies must be dangerous in nature
Elements Approach (Majority view)
Weighs the elements of a crime abstractly
Can use precedent cases that have decided if a felony is inherently dangerous
Dangerous Act Approach
Uses the particular facts of the case to decide whether the felony was dangerous.
Was the crime carried out in an inherrently dangerous way?
Homicide Crimes
Model Penal Code Approach
Murder
Homicide committed recklessly, with extreme indifference to the value of human life
Presumption of extreme indifference when killing occurs, during the commission of 1 of 6 felonies.
must still prove recklessness with extreme indifference

Manslaughter
Extreme emotional Disturbance OR
Reasonable explanation or excuse
subjective approach
no provocation needed
Reckless Manslaughter
Accidental death but less morally blameworthy than reckless murder
Criminally Negligent Homicide
Killing committed with a gross deviation from the standard of a reasonable person

Vehicular Homicide
Not part of the PA model
Ordinarily involves criminally negligent behavior while intoxicated
Drunk rivers who kill while dring.
Criminally Negligent Homicide is too low for the severity of the crime
Rank of MPC Homicide
Murder
Manslaughter
Vehicular Manslaughter
Criminally Negligent Homicide
MPC: Combined crime of Assault
Simple Assault
Attempts to purposely, knowingly or recklessly cause bodily injury
negligently cause bodly injury with a deadly weapon
attempts, by physical menace, to put another in fear of imminent serous bodily injury
Aggravated Assault
Serious bodily injury
Purely, knowingly, or recklessly causing serous bodily injury with extreme indifference to value of human life
Attempts to cause bodily injury with deadly weapon
Mayhem
Common law and minority of jurisdictions
Offense to render victim incapable of self-defense or fighting an enemy
Ex- cutting of hands, legs, permanent disfigurement
Modern
Mostly covered under aggravated battery

Reckless Endangerment
Involves the creation of the RISK of serious physical harm rathern than causing ACTUAL harm
Ex - reckless driving, discharging a gun in public, dropping things from tall buildings
Harrasment and Stalking
Repeated conduct to harass another person and put them in fear
Mens Rea
Intention to do prohibited acts and cause emotional distress or fear of harm
Test is objective
Would conduct put a reasonable person in fear
Aggravated Stalking:
violating court orders
prior convictions
deadly weapons
victim is a minor
Vagueness
difficult to capture the wide variety of stalking-like conduct, without statute being constitutionally vague
Domestic Violence
Any domestic violence action is an assault
Mandatory Arrest
New Jersey Preention of Domestic Violence Act
Police must make an arrest if there is probable cause
Legislative branch tells executive branch (law enforcement) what to do
Special Sanctioning (treatment as a social problem...not just legal)
drug and alcohol treatment
counseling
Sexual Assault
Force or threat of force (common element)
Lack of Consent
if consent is not voluntary, then there is no consent
if the victim does not have the legal capacity to consent, then there is no consent
awareness of the ∆ (some jurisdictions)
Objective manifestation of consent
Physical Act of Sex
Mistake
Mistake as to consent
Mistake as to age
Sexual Assault
Aggravated Sexual Assault
Sexual assault with a deadly weapon
serious bodily injury
group activity
Protection of Sexual Assault Victims
tried to reduce harassment and embarrassment of the victim
rape shield laws
makes inadmissible, in a rape trial, most information about the victim's sexual history
Spousal Exemption
Sexual Assault of a Child
Sexual assault with force or threat of force
Statutory rape
Modern Consolidated Larceny
Consolidates
Larceny
larceny by trick
joy riding
embezzlement
false pretenses
Colorado Statute
Knowingly obtains or exercises control over anything of value of another without authorization, or by threat or deception, and
Intends to deprive permanently
knowingly uses, conceals, or abandons
Uses, conceals, or abandons
Demands any consideration to which they are not legally entitled, as a condition of restoring the thing of value to other person

Receiving Stolen Property
Modern Crime
Receiving or concealing
stolen property
knowledge property was stolen
intent to deprive owner permanently

Theft Services
Very comprehensive
leaving without paying for services received
diverting utilities
Robbery (Mugging)
∆ guilty of bbery if in the course of committing a theft he
inflicts serious bodily injury upon another
threatens another with or purposely puts him in fear of immediate bodily injury
commits or threatens immediately to commit any felony of the first or second degree
An act shall be deemed "in the course of committing a theft", if it occurs in a n attempt to coommit theft or in flight after the attempt or commission
Robbery-like crimes
Purse Snatching
Is a separate crime, because the force used in purse snatching is often insufficient to met the force element in robbery
Larceny from person
Larceny from a person's body or presence, with some use of force
Carjacking
theft of a car using force or threat of force combined with intent to cause death or serious bodily injury
Extortion(blackmail)
Taking property by threat of present or future harm to a person or property
may extend to threats of reputation, disclosed secrets or accusations of crimes
MPC: Limits to obtaining property (must actually obtain it
Criminal trespass
MPC
∆ is liable for criminal trespass when he
Knowing that he is not licensed or privileged
enters or surreptitiously remains
in any building or occupied structure
misdemeanor - nighttime in a dwelling
petty misdemeanor - all others
Defenses
Abandoned building
Premises were open to public
Reasonable belief that owners would have let him enter and remain
Attempt
Must cross the line from preparation to perpetration

Attempt
Dangerous Proximity text (Common Law)
Dangerously close to completion
how much more would it take ∆ to complete?
Mens Rea - specific and not general
Differs in jurisdictions
Reckless or negligent crimes cannot be attempted OR
actor only needs to exhibit culpability required for object crime
Attempt
Dangerous Proximity text (Continued)
Actus Reus
Physical proximity test
physically close to completion
Indispensable element test
incomplete unless indispensable element is acquired
Probable desist test
unlikely to desist voluntarily
Abnormal Step
Beyond where a normal citizen would think better and stop
Res Ipsa test
Conduct as a whole manifests attempt
First act
Last act (strictest test)
crime not committed until ∆ has done everything
Attempt
MPC: "Substantial Step" Test
elements
Purposely does or omits to do something
Constituting a substantial step in the course to commit a crime
requires that the substantial step strongly corroborates criminal purpose
how much has ∆ actually done?
punished at same level as target crime

Imposibility Defenses
MPC
∆ is guilty of attempt if he purposely engages in conduct that would constitute a crime if the circumstances were as he believes them to be
i.e. If ∆ believes that B is A and in wanting to kill A, kills B, then ∆ is guilty.
Solicitation
Asking another person to commit a crime or aid in the commission of a crime
can occur before or after attempt
Modern Statutes and MPC extends to solicitation for misdemeanors
Actus reus: communication of request that another person commit a crime
commands, encourages, requests
Mens Rea: purpose of promoting or facilitating the commission of a crime
Corroborating of actus reus and intent to solicit required
Liabile even if communication fails
i.e. other person never hears message
Defenses
Renunciation and Entrapment
Affirmative defense that the actor, after soliciting anotperson to commit a crime, persuaded him not to do so or otherwise prevented the commission of the crime, under circumstances manifesting a complete and voluntary renunciation of his criminal purpose
If solicitor cannot be convicted of crime solicited, then they connot be convicted of solicitation
Conspiracy
More than 2 people in agreement about committing an object crime
Conspiracy
Elements
Plurality: 2+ people (unilateral MPC rule)
Agreement: express or implied
Intent to agree
Intent to promote or facilitate object of conspiracy
Overt act
during and in furtherance of conspiracy by 1 co-conspirator
Plurality
Common law: must have a t least 2 people in agreement
If ∆ believes he is in agreement with 1 party feigning agreement = no conspiracy
Conspiracy
Agreement
May be inferred from circumstantial evidence
Apparently coordinated conduct deomonstartes the existence o an agreement
Statement by 1 co-conspirator that another person has joined their criminal enterprise can be evidence that there is a conspiracy and that they are all part of it
Overt Act
1 co-conspirator needs to do a single, overt act in furtherance of the conspiracy
Separates just talking about doing a crime, from a crime that may actually be committed
Conspiracy
Suppliers
Knowledge or even tacit approvalf a criminal plain is not sufficient by itself to prove intent to agree. Intent relies on following factors:
the quantity of the sales
whether the price for the goods was the usual one or was inflated
any ongoing relationship between the seller and purchaser
any evidence of a stake in the criminal venture
the impetus for the transactions; and
the nature of the goods or services sold
whether they are common or involve dangerous products or any special attributes for use in criminal conduct
Conspiracy
Wharton's Rule
If the crime requires 2 people then you can not be convicted of conspiracy
If more than the required # of people participate then there is a conspiracy
Except if congress intends to punish for both
Model Penal Code
Permits unilateral agreement
with undercover cop
incompetant person
person feigning agreementt
overt act for misdemeanor or 3rd degree felony
intnet to promote or facilitate the object offense
∆ only liable for his own actions undertaken with requisite Mens Rea
Inconsistent verdicts of co-conspirators ok
Recognizes renunciation as affirmative defense
Conspiracy
Withdrawal from Conspiracy
Affirmative act inconsistent with the goals of the conspiracy that were communicated to the ∆'s coconspirators in a manner reasonably calculated by those conspirators
Statute of limitations starts for withdrawing conspirator when they withdraw.
Interrelation of 3 Incohate crimes
Renunciation
Common law: no abandonment or renunciation defense
abandonment could be evidence of lack of intent to attempt crime
Modern Statutes and MPC
Affirmative defense if ∆ abandons effort to commi crime or otherwise prevents commission
must be complete and voluntary
object crime must not happen
May require police notifications
May require communication of withdrawal/renunciation to conspirators
Few require "timely warning" to cops even if target crime committed
MPC Policy reason - incentive not to complete crimes
If object crime is committed then ∆ loses defense
Interrelation of 3 Incohate crimes (continued)
Severity of each incohate crime
Attempt
most severe
Solicitation
less severe
conspiracy
Less needs to be done than for attempt)
MPC: cannot be convict be of more that 1 incohate crime designed to commit same crime
Pinkerton (Federal and min. jx)
Elements
by conspirator
during conspiracy
in futherace
Foreseeable - not shocking/ subjective foreseeability
Must establish, but not necessarily charge, conspiracy to invoke Pinkerton
To get out of conspiracy
Withdrawal: Ends future liability for co-conspirator's substantive crimes
still liable for conspiracy
do not have to stop object crime
Renunciation
wipes slate claen of conspiracy
object crime must not occur
may require calling cops
Accomplice Liability (All Jurisdictions)
Derivative liability for crime as an accomplice to the crime.
Modern Statutory Approach – Accomplice Liability
Combined Principals + Accessories before the fact = liable for substantive offense
Separate offense for Access. after the fact: lack mens rea for actual crime
For accomplice to be liable for aiding and abetting, principal must have committed the crime.
Attempted assistance might not be sufficient for accomplice liability
Can be charged as a principal and aiding. ( ex – 2 people beat up man who dies)
Principal:
Actus Reus: actually engages in the criminal act;
Mens Rea: intent to commit criminal act
Accomplice Liability
Modern Statutory Approach Continued
Accomplice
Actus Reus
Physical Assistance
Encouragement of a crime, regardless of principal actor's actions (words, gestures, looks, signs)
Mere Presence
sufficient if presence is a show of force
exception: legal duty to aid (cop, mother of abused child)
Mens Rea
Intent to assist another in commission of a crime
Intent for initial crime
Accomplice Liability
Modern Statutory Approach continued
Natural and probable consequences
Accomplice may be liable for object crime being assisted and any offenses that are the natural and probable consequences of the commission of object crime
Knowledge Alone
Insufficient for liability to aid in crime (ex. suupliers
Innocent Instrumentality
When 1 person uses another to commit a crime, but that does not know it is a crime
Innocent instrument is not liable as an accomplice b/c lacks the mens rea
∆ liable for acts of innocence
Accomplice Liability
Modern Statutory Approach continued
Exempt participants (Legislatively protected classes)
Underage people who engage in sex -- not liable as accomplices to statutory rape
Protecting the victim of the crime
Not exempt: 15 y/o telling man to sleep with another 15 y/o
Accomplice Liability
Modern Statutory Approach continued
Abandonment
Withdrawal: may be able to avoid liability if object crime is committed
complete and voluntary withdrawal
May require communication to BOTH cops and perpetrators of crime
Must "undo" assitance that he rendered
Change of heart only is insufficient because assistance has already occured
Model Penal Code Accomplice Liability
May be convicted eve if the person who commied offense is acquitted
Accomplice
∆ acts with purpose of promoting or facilitating the commission of the offense,
solicits, aids, agrees to aid, or attempts to aid another in planning or committing a crime
Solicitation = accomplice to a crime
Attempted aid
attempt to aid in failed crime = still liable as an accomplice
Attempted aid is sufficient for liability, where the principal actor was unware he had been aided
Model Penal Code Accomplice Liability
No natural and probable consequences doctrine
∆ is not liable unless he had knowledge and purpose to do incidental crimes
Abandonment
Must stop participation BEFORe object crime committed
wholly deprived of his assistance
warn cops or make proper effort to prevent commission.
Accessories after the Fact
Not accomplice liability but obstruction of justice
People who help or tyro to help in criminal escape or avoidance of law enforcement
Elements
Mens Rea: Specific intent to help avoid apprehension
Must know that they are being sought by law enforcement
Actus Reus: Do something to further their avoidance of apprehension
Hiding
Lying to police
Given the weapons, money cars
Accessories after the Fact
Hindering
Concealing, harboring
Supplying weapons, money, disguises
Concealing, tampering with evidence
Warning felons of impending discovery
Reporting false information to police
Exception: Mama Rule
Some Jx – exempt family members from hiding criminals b/c of social policy to encourage counseling relatives to surrender.
Accessories after the Fact
Misprision/Non-reporting
Failure to report a crime
Hiding evidence
Generally: no duty to report crime
exception: Child Abuse
Accessories after the Fact
Compounding
taking money or benefit in exchange for not reporting a crime
Affirmative Defense
Reasonable compensation
embezzler agrees to return your money, you can agree not ot report him
Bike thief returns bike
May not demand more than amount owed
Defenses
Defenses
Overview
Impact of defenses
negates an element of a crime
ex. mens rea
Complete Defense: no liabiilty at all if defense succeeds
Insanity, duress, necessity, self-defense
Imperfect Defense: reduces liability for crime
ex. from murder to manslaughter
Overview
Burden and Standard of Proof
Burden of production and persuasion
∆ has burden of providing some (modest) evidence of a defense
which side has burden or persuasion varies by jurisdiction.
True Defense
∆ raises the defense (burden of production)
Prosecution must disprove the defense beyond a reasonable doubt
Affirmative Defense
∆ must raise and prove each element of his defense is present
Overview
Justification/Excuse
Justification
conduct was aligned with what society deems appropriate under circumstances
Not morally blaemworthy for condut that would otherwise be crimnal eause it served a greater good to society
Self defense, defense to 3rd party or property
law forcement defense, parent (or teacher) disciplining child
Consent
Must be freely given by a person legally capable of consenting
May consent to conduct that would normally be Assault and Battery
surgery, recreational sports, etc.
May not consent to serious injury or death unless context is appropriate
medical operation
Forgiveness by injured party
generally not a defense unless statutorily permitted
Alibi
Witness or statements that place ∆ at another location during the crime
Notice requirement
∆ must notify prosecution of use of alibi
List of alibi location and witnesses
Self defense
Reasonable Person - Common Law
Elements of objective defense
Reasonable force
reasonably and honestly believe force is necessary
to protect against
imminent
unlawful force
Self defense
Reasonable Person - Common Law continued
Issues with Self Defense
Mistake with a reasonable fear of imminent harm is valid self defense claim
Conditional Threat may be sufficient ot permit self defense
1st aggressor may use self defense if:
∆ removed self fomr fight and communicated it to other person
if level of force escalates fight w/o chance of withdrawal
NY Standard: Objective person with ∆'s circumstances and experiences
Perfect Self-defense
unreasonable amount of force
unreasonable belife of imminent threat
MPC - Subjective Self Defense
Belief that ∆ needs to proect self from imminent force, even if unreasonable
force is lawful
Deadly force is only permitted when used against death, serious bodily injury, kidnap, or rape
∆ may not use deadly force if ∆ provoked the use of force in same encounter
∆ may regain right to used deadly force in self-defense by withdrawing
Retreat Rule: Must retreat before using deadly force, if it's safe to do so (except in home/work)
must retreat at work if attack is by someone you know also works there
Limits
No use of force to resist arrest by known police officer, even if it's unlawful
If ∆'s mistaken belief is caused by recklessness or negligence, then ∆ may be laible for offense based on mens rea of recklessness or negligence and self defense is not permitted
Defense of 3rd Persons
Early Common Law: famililial relationship required
MPC (Subjective)
honestly believe that 3rd party requires protection from imminent force.
may come to defend 3rd party resisting arrest by a cop if you honestly believe that they need help
can use force believed to be necessary to protect. Honest and reasonable mistakes are valid
Unreasonable mistakes formed because of recklessness or negligence may be liable for reckless or criminally negligent crimes
*Retreat rule for deadly force
applies if ∆ can retreat safely while securing safety of 3rd person
Defense of Property
MPC "Honest Belief"
request to desist before using any force, unless useless, dangerous or will result in harm to property
Deadly Force only permitted when
Person is trying to dispossess you of your dwelling
Person is attempting to commit arson, burglary, robbery or other felonious heft or property destruction and has used or threatened deadly force OR
use of non-deadly force will expose ∆ to death or serious bodily harm
Protective devices
only permitted when they are not designed to inflict deadly force.
must be reasonable under circumstances and be typically used ot deter trespassers
no spring guns
Battered Spouse Syndrome
Uses force (or deadly force) against spouse without present battering, but ∆ believes that another attack is imminent
does not permit hiring 3rd party assassin
no conspiracy or planning murder
Jurisdictions split on allowing evidence of prior abuse and jury instruction to allow it to aid in reasonableness analysis for self-defense

Law enforcement defense
MPC: Subjective Honest Belief Approach
Cop my use force if he honestly believes that it is necessary to effectuate arrest
Softens standard for private citizen who honselty, but mistakenly made unlawful arrest
Deadly Force is permitted by a cop or citizens aiding a cop if felony involves use or threat of deadly force
not permitted for non-aiding private citizens
Law enforcement defense
Preventing Escape
Common Law
permitted to use deadly force agianst fleeing felons
MPC
Cop may use deadly force if
there is no risk to bystanders
forcible felony is being committed
substantial risk of serious injury if he delays in preenting crime
Crime Prevention
Common Law
Non-deadly force may be used to prevent any fleony if the force used is reasonably necessary to prevent crime
Deadly Force
Majority: Deadly force is allowed to prevent serious forcible felonies
burglary, murder, aggravated assault, etc.)
Minority
MPC: Forcible Felonies only
Deadly Force
offense poses signifcant threat to others
does not pose threat to bystanders
Resisting Arrest
General rule
may not resist arrest by known cop
Lawful Arrest
∆ may not resist arrest by known peadce officer who uses reasonable force
∆ is required to submit peacefully to arrest by cops, pursue remedies thorgh judicial system
Ulawful Arrest
Most jurisdictions and MPC say tha t∆ may not resist arrest even if arrest is determined to be unlawful
to protect cops and arrestee from harm
Excessive Force
∆ may use self-defense if arrest is made with unreasonable force
Public Duty
Re: prison guards, executioners, cops speeding, etc.
Conduct surrounding war
transparently unlawful activities not permitted even during war
permitted to kill in the heat of war, but not permitted to murder unarmed prisoners
MPC
Public officials ve a defense for conduct done to carry out duties
Military orders: affirmative defense if following orders not known to be unlawful
not applied in the United States
Discipline based on relationship
certain relationships permit the use of force
Parent/Child
may use reasonable force to discipline or teach
Prison Guard/Prisoner
permitted to use force to maintain order
Teachers/Students
permitted to use force to discipline students
Excessive force
there is no defense for excessive force
assault may apply
some jurisdictions bar teachers from using foce except in emergency to protect the child from harm
Necessity: Choice of Evils
May use necessity defense under extreme circumstances to escape greater evil
suffer harm or commit crime
Common Law (objective)
real emergency must exist to be imminent
Majority
Does not apply to homicide
may not kill another person to save your own life
may be used to reduce crime in some jurisdictions
Necessity: Choice of evils
MPC (Subjective)
Test: does ∆ believe conduct will avoid the harm
Omits immediacy requirement
Harm avoided must be greater than harm done
Not permitted where ∆ recklessly or negligently palced himself at risk to need necessity
does not preclude homicide or duress for necessity
Prison Breaks
defense fails, unless prisooner surrenders to authorities after escape
Jury will decide if circumstances warrant punishement for crime
Jury Nullification
Jury may make a decision irrespective of the law
Duress
Crime committed under use or htreat of harm to person, 3rd party or property
Common Law:
harm must be imminent
homicide and economic harm are not permitted
MPC omits imminent element
reaosnable firmness must be unable to resist use or threat of harm
Not permitted if ∆ recklessly or negligently places himself in situation with duress
Not precluded in homicide cases
Entrapment
Subjective: majority view
Improper for government to implant the disposition to commit a crime and induce its commission so that the government can prosecute them
∆ must show a lack of predisposition to commit crimes
Prosecution must show that ∆ was predisposed to commit crimes
∆ msut allow evidence of prior criminal history and allow proof of "bad" character that may sway jury decide against ∆
Entrapment
MPC (Objective)
Focus on government's overreaching conduct
In order to get proof of a crime, government agent knowingly lies to to induce belief that conduct is not criminal
creates substantial risk that ∆ will commit offense
Defense permitted if ∆ can show conduct was response to entrapment

Insanity Incompetence Incompetence Incompetence
_______|_______|_______________|________________|________
Crime Trial Sentencing Execution

Mental Status Defenses Timeline
Insanity
A jury quesiton
Notice requirement
prosecution needs time to evaluate ∆
Mandatory court ordered evaluation
available to both sides
4 tests for Insanity
M'Naghten
Quality and nature OR
∆ thinks strangling a person is squeezing grapefruit
Right v. Wrong
failure to understand that conduct is regarded as wrong by society
Irresistible Impulse test
One prong of M'Naughten Test OR
Lacks will power to resist insant urge
Test: would ∆ commit crime if a cop was present?
Insanity
4 tests for Insanity continued
Durham Test: Prodcut Test
crime was prodcut of mental defect or disease
But-fro the disease, crime would have not been committed
Relies on psych testimony
ALI - MPC test
Substantial capacity test
If at the time of the crime, conduct is result of mental disease or defect, ∆ lacks substantial capacity to either
Appreciate wrongfulness of conduct OR
To conform his conduct to requirements of the law
Involuntary intoxication
may cause loss of substantial capacity to appreciate criminality or control conduct
Insanity
Psychopaths and sociopaths excluded
rpeated criminal conduct without guilt
Burden of Proof and Standard
Prosecution has the burden of proving ∆ is sane beyond a reasonable doubt
Jury Verdict
Not guilty by reason of insanity
Mental institute for evaluation for
30, 60, or 90 days
After evaluation, judicial system may not hold ∆
May seek civil commitment
Guilty but mentally ill
∆ is not quite insane, but very sick and should be off the streets
∆ placed in a mental institution until ∆ serves rest of prison term
confinement in institution may exceed incarceration term
thought civil commitment
Incompetence
judge question
prevents courts form assessing criminal liablity while ∆ is incompetent
Test for incompetence
Understanding of the proceeding
ability to aid and assist in defense
Execution
A person may not be executed unless he understands the nature and purpose of the punishment
Anti-psychotic drugs may be used to resotre ∆ to sufficient mental competence toticipate
Effect of incompetence
Released for minor crimes or sent for evaluation
May not hold ∆ indefinitely because of incompetence
may use civil commitment
Diminished Capacity
Partial defense
As a result of mental def, short of insanity, ∆ did not have mens rea required for alledged crime
purposeful
knowing
reckless
negligent
Some jurisdictions limit it to specific intent crimes
Intoxication
Common Law
Voluntary Intoxication
Negates actus reus but is seldom accepted
Omission to act
some jurisdictions say there is o liability because of an inability to act
some jurisdictions say ∆ voluntarily became intoxicated and is liable
Mens Rea
Not a defense to general intent or strict liability crimes (i.e. trespassing)
May be able to netgate intent, purpose, deliberation, premeditation, knowledge
Intoxication
MPC
allows defense ot negative elements
precludes use of defense when mens rea is recklessness
awareness and then ignoring risk
not a mental disease for insanity
but insanity defense may be outgrowth of excessive alcohol abuse
Intoxication
Common Law Continued
Involuntary Intoxication
Force, duress, or unexpected reaction to prescription drug
Minority view
mental disease requirement of insanity metd
Mistake of Fact
Mistake of fact may negate mens rea
Mistake of fact = no knowledge = no liability
Not a defense for strict liability crimes
statutory rape
dui
etc.
Ignorance
Ignorance of the law is not genrally a ∆ even if reasonable
Reliance on incorrect attorney information is not a defense
Exceptions
Reasonable reliance on statute or judicial decision, advice of public office
Law not reasonably availabe
Infancy
Generally infancy provides a defense to criminal liability
Rule of infancy may apply if child is charged with serious crime and tried as an adult in adult court
Common Law
Rule of 7s
Modern Statutes
Juvenile Delinquency
concurrent jurisdiction
∆ must be charged with delinquency in juvenile court, unless juvenile waives jurisdiction and authorizes trial of child as adult in criminal court
Juvenile Court
rule of infancy does not apply (main goal is rehabilitation)
exclusive control over 16 yo. and younger
concurrent jurisdiction 16-17 year olds
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