Criminal Law Outline

SUBSTANTIVE CRIMINAL LAW

I.THE CRIMINAL ACT—ACTUS REUS

MPC §1.13(9) – elements of an offense: 1) conduct 2) attendant circumstances 3) result. Each element has a mental state connected to it.

Intent – Intent without an OVERT ACT cannot constitute a crime. (Proctor v. State)

Omission – MPC § 2.01(3) – Only a crime in certain cases

1. When a statute imposes a duty of care for another
   
2. Where one stands in a certain status relationship to another
   
3. Where one has assumed a contractual duty to care for another
   
4. Where one has voluntarily assumed care of another and so secluded the helpless person as to prevent others from rendering aid
   

Possession – MPC § 2.01(4) – If possessor knowingly procured or received the thing possessed [actual possession] or was aware of his control thereof for a sufficient period of time to have been able to terminate his possession [constructive possession]. Voluntariness – MPC § 2.01(1) – A requirement for a crime 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. Exceptions – MPC §2.01(2) – (a) Reflex/convulsion; (b) bodily movement during unconsciousness/sleep; (c) hypnosis/hypnotic suggestion; (d) bodily movement otherwise not a product of the effort or determination of the actor, either conscious or habitual. Status Crimes – A state of being (drug addict/homelessness) cannot be a crime. Specificity – A statute is too vague if: (1) it fails to provide notice that will enable ordinary people to understand what conduct it permits, or (2) it authorizes arbitrary/discriminatory enforcement.

II.STATE OF MIND—MENS REA

Mens Rea: State of mind – requires 1) desire to harm others or violate some other social duty or 2) disregard for the welfare of others or for some other social duty. MPC § 2.02(2) – Kinds of Culpability (See Awesome Chart p. 193!)

1. Purposefully – Conscious object to engage in conduct of the nature and if element involves attending circumstance, an awareness of the existence of such circumstances (you want the thing that the law prohibits you from doing)
   
2. Knowingly – Aware that that his conduct is of that nature or that attending circumstances exist and awareness that it is practically certain that his conduct will cause such a result
   
3. Recklessly – Consciously disregards a risk that the material elements exist or will result from his conduct (must be conscious of the risk to be reckless)
   
4. Negligently – Should be aware of risk that the material element exists or will result from the conduct (doesn’t need to prove that D was aware of the risk – reasonable person standard)
   

MPC § 2.04 – Ignorance or Mistake Affirmative Defenses

1. Mistakes which negate the mental element (mistake of fact or law)
   
   1. Mistake of Fact – If defendant proves that because of a mistake of fact he didn’t possess the requisite mens rea, then he is not guilty.
      
   2. Mistake of Law – Mistake of law is not a reason to excuse the defendant from responsibility for the offense.
      

Omission & Knowledge – An actor cannot be liable for a crime of Omission of an act unless there is proof of Knowledge that the omission was criminal. (Lambert v. CA – Ex Con registry case) MPC § 2.02(4) – Prescribed Culpability Requirement Applies to All Materials Elements – If the statute doesn’t attach specific states of mind to each element of the offense, then the one state of mind referred to applies to all elements. Strict Liability – Liability without moral fault

1. Pure Strict Liability – Liability without any culpable mental state with respect to any objective element.
   
2. Impure Strict Liability – Liability without any culpable mental state with respect to at least one such element (only has state of mind regarding at least one of the elements).
   
3. The Key element in a Felony cannot be Strict Liability.
   

MPC § 2.02(3) – Culpability Required Unless Otherwise Provided – When the culpability sufficient to establish a material element of an offense is not prescribed by law, such element is established if a person acts, purposely, knowingly or recklessly with respect thereto. MPC § 4.01 – Mental Disease or Defect Excluding Responsibility – Mental disease or defect is a defense for any type of Mens Rea, not just Purpose or Knowledge. Drunkenness – Drunkenness is an allowable defense in cases involving knowledge or purposeful state of mind (specific intent crimes). It must specifically seek to argue that actor did not have knowledge or purpose. What about negligence?

III.CAUSATION

MPC § 2.03(1) – Causal Relationship – Conduct is the cause of a result when:

1. it is an antecedent but for which the result in question would not have occurred; and
   
2. (2)(b) & (3)(b) and is not too accidental/remote
   
3. the relationship between the conduct and result satisfies any additional causal requirements imposed by the Code or by the law defining the offense.
   

MPC § 2.03(2) – Purposely or Knowingly – Basically the same as below MPC § 2.03(3) – Recklessly or Negligently – Basically the same as above When there are two potential actors as the cause…

• When there are two possible causes and you don’t know which one is the real one, there is no causation (Martin v. Dyos – Brick fight, but other head injury).
  
• However, the actions of one source does not absolve another when they both played a role in bringing about the result (R. v. Benge – Railroad, flag guy).
  
• Absent physical contact, death must be a probable and natural consequence of the conduct (Hubbard v. Commonwealth – Cop w/heart condition)
  

When the victim’s action may negate responsibility of D…

• Intervening action by decedent can absolve D of their liability (Commonwealth v. Root – Swerving car in race).
  
• If you injure someone in a way that might cause their death, neither the victim’s action nor the negligence of those who treat him will break the causal chain. (Hamilton – Crazy tube pulling guy).
  
• When D’s actions lead to victim hurting self, D can be responsible, however very fact specific (Stephenson – Kidnapper, victim suicide).
  
• Only being involved in events leading to death does not make D the cause, unless there is reckless disregard for human life (Persampieri – Guy hands wife gun, Kevorkian ­– Dr. provides means for suicide)
  

IV.CRIMES

i. homicide

MPC § 210.2 – Murder – Purposely, Knowingly, and Recklessly “under circumstances manifesting extreme indifference to the value of human value.” MPC § 210.3 – Manslaughter – Criminal homicide is manslaughter when:

1. Involuntary – it is committed recklessly; or
   
2. Voluntary – a homicide which would otherwise be murder is committed under the influence of extreme mental or emotional disturbance for which there is reasonable explanation or excuse. The reasonableness of such explanation or excuse shall be determined from the viewpoint of a person in the actor’s situation under the circumstances as he believes them to be.
   

Heat of passion is such an explanation. However, a brief pause between provocation and homicide may be sufficient to negate heat of passion. Provocation is an important issue that should be argued back and forth in the exam. MPC § 210.4 – Negligent Homicide – Criminal homicide constitutes negligent homicide when it is committed negligently. Negligence involves complete ignorance of the risk posed.

• Awareness of risk is not required, (Welansky – Night club owner and fire case)
  
• Doesn’t need to prove that D was aware of the risk – reasonable person standard
  

Analyzing EED (Extreme Emotional Disturbance) – Many different factors (cultural [Wu – Ma kills boy], racial, gender, class, duration/intensity of provocation [Israeli Chick Case – Typical chick behavior, guys kill her], etc.) can be discussed in regards to “reasonableness of explanation”. That doesn’t mean it will prevail, but it can be discussed. Factors to consider when determining whether there was premeditation and deliberation:

1. Earlier hostility between the parties
   
2. Self interested motive
   
3. Manner and circumstances of the killing
   
4. Accused’s behavior before the killing
   
5. Origin of the murder weapon.
   

What Constitutes Provocation

• If time elapses between provocation and killing, there is no provocation because there was time for deliberation (Watson – D thought about killing cop as cop said, “It isn’t worth it.”)
  
• Origin – (typical male behavior) Man finding wife in bed, killing one of them, this is still valid provocation.
  

ii. Felony Murder

Certain crimes are so dangerous we’re going to consider it murder if someone dies. Felony Murder is Extreme Recklessness Murder per se. ERM has a broader scope. MPC § 2.10.2(1)(B) – Extreme Recklessness Murder (felony murder fits within this) – “It is committed recklessly under circumstances manifesting extreme indifference to the value of human life. Such recklessness and indifference are presumed if the actor is engaged or is an accomplice in the commission of, or an attempt to commit, or flight after committing or attempting to commit

1. Robbery – MPC § 222.1 (while committing theft, inflicts serious bodily injury, or puts in fear of bodily injury)
   
2. Rape – MPC § 213.1
   
3. Deviate sexual intercourse by force or threat of force – MPC § 213.2
   
4. Arson – MPC § 220.1
   
5. Burglary – MPC § 221.1 (enters a building to commit a crime)
   
6. Kidnapping – MPC § 212.1
   
7. Felonious escape – MPC § .”
   

Felony Murder Theories

1. “Proximate Cause Theory” – Doesn’t matter who does the act that leads to the death so long as death was proximate causally linked to felony
   
2. “Agency Theory” – Only felony murder if felon or co felon does the act that produces the death
   

Case Examples

• Limits to Proximate Cause – D should be held liable for felony murder if death is not too remote, accidental in its occurrence or too dependant on another’s volitional act (State v. Martin – Fight at party results in fire)
  
• Egg-Shell Victim Rule – If during the commission of a felony, you cause victim to die (unintentionally or unforeseeably), you can still be convicted of felony murder (People v. Stamp – Heart attack of shop owner during robbery)
  
• Safe Harbor Rule – In order to be guilty of felony murder, D must have committed the murder, at the latest, in immediate flight. If they reach safe harbor, then the felony has come to an end (Gladman – Guy robs deli, hides under car, shoots cop)
  
• Proximate Cause Example – Anyone who causes the death of an innocent victim, indirectly or directly, during commission of felony can cause D to be guilty of felony murder (Payne and Hickman – Ds never actually pulled the trigger)
  
• Agency Theory Example – Felon or Co-felon does the act that produces the death (Taylor v. Superior Court – Guys rob, victim shoots one robber)
  
• If the felony is about endangering someone’s life (assault & battery), then there can be no conviction for felony murder (State v. Shock – Beating 5 yr. old to death)
  

iii. Rape

MPC § 213.1 – Rape and Related Offenses – A male who has sexual intercourse with a female not his wife is guilty of rape if:

• Crucial element is that defendant compels by force or threatens victim to have sexual intercourse.
  
• No resistance nor consent requirement on part of victim in Model Penal Code definition.
  
• Mens rea not defined, thus should apply purposefully, knowingly, or recklessly (Model Penal Code § 2.02(3)).
  
• What does recklessness apply to?
  
  • Could be victim's consent, compulsion by force, etc..
    
  • Thus, needs to be consciousness of risk which defendant then disregards.
    
  • Thus: defendant needs to be conscious of risk of compulsion that he then disregards.
    
• Model Penal Code is thus not an easy standard for rape convictions.
  

Most representative rape case: State v. Smith, said that you focus on whether a reasonable person would have thought the victim consented.

** Shifts focus from victim’s behavior to D’s state of mind.

Givelber said if rape is on the exam, we will have a statute to apply instead of the MPC. The MPC is only really relevant to determine consent and overcoming consent. iv. Attempt MPC § 5.01—Criminal Attempt person is guilty of attempt if, acting with the culpability otherwise required for the commission of the crime, he 1) a) made a mistake (Acted in a way that would have been a crime if the circumstances were as D thought they were) b) attempted to cause result but didn’t succeed c) does something that he thinks (regardless of whether it is true) is a substantial step toward the completion of the crime. 2) list of things that constitute a substantial step 4)—Renunciation of Purpose defendant must do a complete and voluntary renunciation of criminal purpose. People v. Staples (drilling holes case) reinforces that completion of a substantial step IS attempt and therefore there can be no renunciation Impossibility and Attempt 1) legal impossibility: the act if completed wouldn’t be criminal. Where there is a legal impossibility, the accused can’t be successfully charged with attempt.

1. Pure - when a criminal law doesn’t prohibit D’s conduct or the result that D sought to achieve (when D engages in conduct that he thought was illegal but it isn’t actually prohibited by law)—NOT GUILTY OF ATTEMPT
   
2. Hybrid – when D’s goal was illegal but commission of the offense was impossible due to a factual mistake by D regarding the legal status of some factor relevant to D’s conduct.—GUILTY OF ATTEMPT
   

2) factual impossibility: the basic or substantive crime is impossible of completion b/c of some physical or factual condition unknown to the defendant. Where there is a factual impossibility, the accused can be successfully charged with attempt. —GUILTY OF ATTEMPT v. Solicitation MPC § 5.02—Criminal Solicitation when a person, with intent that another person shall engage in criminal conduct, solicits, requests, demands or otherwise attempts to cause such other persons to engage in such conduct.

(a person can be punished for either attempt or solicitation but not both)

(if you try to solicit but fail, you can still be convicted of solicitation)   vi. Complicity MPC 2.06—Liability for Conduct of Another; Complicity Mainly causing innocent/irresponsible people to engage in criminal conduct or being an accomplice  

(2.06(3) defines accomplice liability, you must have knowledge & purpose to

effectuate the crime, or you must have foreseen that the crime might happen)

2.06: test for being accomplices: if they wanted to get involved only starting when the crime was being committed, then their aiding must take place before or during (cannot be after). If they had formed intent beforehand, aiding can take place anytime. YOU MUST DO SOMETHING THAT FACILITATES THE COMMISSION OF THE CRIME. State v. Tally says you don’t have to be successful in your aid to be guilty under complicity, you just have to try to aid. (also § 5.01(3)) Renunciation: § 206(6)(c) vii. Conspiracy MPC § 5.03—Criminal Conspiracy agreeing with someone to commit a crime or agreeing with someone to plan or attempt a crime + ( 5) ) (if it is a minor [not 1^st or 2^nd degree] crime, there needs to be a substantial step taken) Renunciation: § 5.03(6)

There muse be an identifiable co-conspirator (US v. Cepeda)

A conspiracy does not automatically terminate simply b/c the gov’t, unbeknownst to conspirators, has defeated the conspiracy’s object (US v. Recio)

In order to make the supplier a participant in a criminal conspiracy, he must 1) have both

knowledge of 1) the illegal use of the goods or services and 2) intent to further that use.

Ways to establish intent: 1) direct evidence 2) inferred (a) when seller acquired a stake in venture b) when no legitimate use of good exists c) when volume of business with buyer is grossly disproportionate to any legitimate demand/sales for illegal use amount to a high proportion of the sellers total business. (People v. Lauria)

V. DEFENSES

i. Self-Defense

MPC § 3.04—Use of Force in Self-Protection Defendant has right to use force to defend himself (or another, MPC §3.05) if he subjectively believes that such force is immediately necessary to protect himself against the use of force by someone else (But, under MPC § 3.09 if your belief is recklessly or negligently arrived at, you don’t have a defense to a prosecution based on a negligent [negligent homicide] or reckless [manslaughter] mens rea crime). You look at the defendant’s experiences/perceptions when evaluating whether the defendant subjectively believed that that level of force was necessary (State v. Leidholm, woman stabbing husband case), BUT the beliefs must comport with objective notions of reasonableness (Goetz case, man in subway shooting black youths).

(2)(b) Defendant can only deadly force (defined in MPC § 3.11) if protecting himself against serious or deadly injury or rape.

(2)(b)(ii)(1) duty to retreat, unless you are in your own house

Gleghorn: Once a person initiates the use of force, he loses the right of self defense defense. To regain right, he can either 1) desist under circumstances, making it clear that he is no longer pursuing our aggressive pattern 2) person whom you attack responds with disproportionate force and therefore you must defend yourself (this also holds up under the MPC). Givelber said: If I slap you so you’ll pull a gun and I then can shoot you—lost right to self-defense.

ii. Necessity (compelled by situation/circumstances to engage in criminal conduct, but still acting on own free will)

MPC § 3.02—Choice of Evils

You can act if the harm/evil you prevent is greater than the harm/evil you do.

iii. Duress (forced by human to engage in criminal conduct, not of own free will)

MPC § 2.09—Duress

1. It is a defense to a crime if you were coerced by a person to engage in the criminal
   

conduct, unless a person of reasonable firmness should have been able to resist or (2) you recklessly placed yourself in that situation.

State v. Crawford (dealer’s case) says that threat to self or family must be imminent and continuous.

iv. Renunciation of Purpose (for Attempt, Complicity, and Conspiracy—see respective sections)

VI. PUNISHMENT: DEATH PENALTY

MPC § 210.6 You first ask if the person is death eligible (aggravating factors), then ask if that particular person should not be executed (mitigating factors). Aggravator needs to be unanimously found by jurors (e.g., heinous or cruel, great risk of death to 2 or more people, to avoid arrest, or ‘premeditated felony murder’ (Olsen), major participation in felony + reckless indifference to human life (Tyson v. Arizona), mitigator (found in statutes, as well as non-statutory ones) only needs to be found by a preponderance of the jurors.

PROCEDURE

Leon (63) evidence obtained by officers relying on a search warrant that turns out not to be supported by probable cause/constitutional should be upheld (not be excluded) Penn Board of Probation & Parole v. Scott (73) Parole officers have the right under the 4^th amendment to search the parolee’s property without a search warrant or the parolee’s permission. Katz v. US (81) Someone using a public phone booth is entitled to 4^th amendment protection. FL v. Riley (89) An officer observing D’s property in a helicopter flying over a house at 400 feet does not violate the person’s 4^th amendment rights. (Givelber disagrees though) CA v. Greenwood (86) An officer searching through someone’s opaque garbage bag does not violate the 4^th amendment. Karo (93) If you could not have gotten the information without the technology, the technology violates the 4^th amendment.

Kyllo (97)

Where there is a reasonable expectation of privacy, under the 4^th amendment, you cannot obtain information through the use of technology that you wouldn’t have been able to obtain without it. US v. White (102) A plain-clothes cop can use a recording device to record conversations with suspects without violating the 4^th amendment. Spinelli v. US (110)—For probable cause to be satisfied, an informant must tell info in sufficient detail so that the magistrate knows he is relying on something substantial. BUT OVERRULED BY… Illinois v. Gates (113) Court couldn’t reconcile Draper and Spinelli, so holds that you must look at the totality of circumstances in assessing whether probable cause exists. Maryland v. Pringle (127) Probable cause is satisfied for the arrest of any passengers in a car in which contraband are found.

US v. Watson (140)

Holds that a government-approved official has the right to arrest someone without a warrant, even without exigent circumstances. Also, once they find probable cause, the official should use the warrant in a reasonable amount of time so the warrant doesn’t go ‘stale’. US v. Robinson (145) Holds that an officer is allowed to search a person along with anything on his person and his surrounding area if you are arresting the person, even if the officer does not think he is in any danger. Whren v. US (152) Holds that the test for whether a pullover is legal under the 4^th amendment is whether there was any probable cause for pulling the car over (rejects ‘reasonable acting officer’ test). It does not matter what the intention of the police officer is.   Atwater v. City of Lago Vista (157) Under the 4^th amendment, there is nothing to prohibit an officer from arresting someone for a minor criminal offense without a warrant (also rejects ‘reasonable acting officer’ test).   Payton v. NY (169) Under the 4^th amendment, the police cannot search a D’s house without a search warrant OR an arrest warrant & reasonable cause to believe the D is in the house. Also, even if police have an arrest warrant, police must announce that they are there and give the D an opportunity to surrender so the police can make the arrest at the door (not have to go inside).   Chimel v. CA (174) A warrant-less search ‘incident to a lawful arrest’ extends to the area considered to be in the possession of or under the control of the D. This is so the police can protect themselves and keep evidence from being destroyed.  Vale v. LA (179) A search may be incident to an arrest ‘only if it is substantially contemporaneous with the arrest and is confined to the immediate vicinity of the arrest.’

CA v. Carney (183) Vehicles have less 4^th amendment protection b/c a) they can be easily moved and b) there is less expectation of privacy (however, the trunk has more protection)—they are traveling on public roads.  Thornton v. US (187) An officer may, incident to arrest, search the car of ‘recent occupants’ of a car w/o a warrant. Knowles v. Iowa (192) An officer issuing a traffic citation but not arresting the person cannot search the car w/o a warrant.  CA v. Acevedo (194) An officer that has probable cause to search a car can search all belongings, regardless of owner, that are capable of concealing the object of the search.   Colorado v. Bertine (210) The police are permitted to inventory a lawfully impounded vehicle, if not in bad faith.   Terry v. Ohio (214) An officer who has an articulable suspicion that he or others are in danger may do a brief search for weapons (“stop & frisk”) FL v. J.L. (223) Anonymous tip that someone is carrying a weapon is not enough under the 4^th amendment to justify “stop & frisk” Illinois v. Wardlow (226)

A fleeing suspect in a high-crime area is enough to justify “stop & frisk”

FL v. Royer (228) Terry only authorizes a short, limited intrusion—taking a person into a separate room while retaining some of his belongings is a violation of the 4^th amendment, absent a warrant.   US v. Place (241) Under the spirit of Terry, police officers can subject baggage to a dog-sniff test on reasonable suspicion (limited in scope and detained briefly)  US v. Drayton (235) The police can, under the 4^th amendment, go on a bus and question individuals if it is done in a non-threatening manner and w/o brandishing a weapon, b/c the individuals can freely choose not to participate in the questioning. Massiah v. US (326) It is not constitutional for the police to ‘interrogate’ someone already formally charged with a crime & ROR through the use of informants when the person has retained a lawyer. Miranda v. Arizona (336) In-custody confessions are excluded unless procedural safeguards have been employed to secure the privilege against self-incrimination. Yarborough v. Alvarado (363) When determining what constitutes “in custody,” you must look at whether a reasonable person in D’s situation would have felt s/he was at liberty to end the interrogation and leave. Rhode Island v. Innis (370) When determining what constitute “interrogation,” you must look at whether the words/actions of the police should be known by the police to be reasonably likely to elicit a response from D. (two cops talking to each other did not constitute interrogation) (note to self—last two cases in procedure and this one should probably be grouped together) Minnick v. Mississippi (378) Under 5^th amendment/Miranda, when D requests counsel, interrogation by police must cease and must not be reinitiated w/o counsel present, regardless of whether D has consulted his attorney, unless D initiates the conversation about waiving his 5^th amendment rights. US v. Patane (393) “Fruit of poisonous tree” doctrine does not apply in cases in which the Miranda warnings were not given/given improperly—any evidence obtained as the result of a resulting confession is admissible against D. Moran v. Burbine (402) It does not violate the 5^th, 6^th, or 14^th amendment/Miranda if the police lie to a third party trying to get counsel for D or if they fail to inform D that counsel has been trying to contact him. Dickerson v. US (418) 18 USC § 3501 (saying a voluntariness test is sufficient for determining the validity of confessions and making Miranda warnings unnecessary) is invalid, because state courts cannot overrule Miranda, a constitutional decision of the Supreme Court. Brewer v. Williams (438) Even if police request that D not respond to statements that may elicit a confession, it can still constitute interrogation and the confession is therefore excluded if the person has already asserted right to counsel. Kulhmann v. Wilson (448) There is no 6^th amendment violation if a police informant positioned to gather incriminating evidence about D does nothing other than listen to what D says. Overview of 5^th and 6^th amendments from Givelber meeting: All undercover informant fact patterns—6^th amendment 6^th amendment: protects you from state asking you anything about crime you were accused of without counsel present 5^th amendment: would not protect you against above