Criminal Law outline I.) Rationales and Constitutional Constraints 1.

) Consequentialist- Actions are morally right if and only if they result in desirable consequences. a. Specific Deterrence-Stop individual b. General Deterrence-Stops other potential criminals c. Incapacitation Render harmless to society. In the US: the penal theory is incapacitation, to render criminals harmless to society. This has fueled a huge boom in incarceration. d. Rehabilitation- Give inmates skill and values to become law abiding citizens e. Channeling (Avoid-Self-help) f. Denunciation/Expressive- punishment based on results 2.) Non-Consequentialist (Retributivist- Looks backwards at harm)- Actions are morally right or wrong in themselves, regardless of the consequences a. Assaultative-Punish them because they deserve it b. Protective: Paternalistic argument, you chose to break the law, you chose the consequences that come with breaking the law. c. Vindicating and Valuing the victim-If you do not punish what are you saying about the victim 3.) Restorative Justice between both sides of spectrum Look your victims and their survivors in the eye and say Im sorry. Lets all work together for a better solution. Utilitarianism- Look forward at desirable effects (Jeremy Bentham) o Four Factors to enhance Efficacy of Punishment 1.) Intensity 2.) Duration 3.) Certainty 4.) Propinquity = 1. Severity 2. probability 3. celerity= Swiftness Trends in Incarceration o Declining crime rates, incarceration rates slowly declining (Recession) o Disturbing Race disproportionality ratios Limits on Power to punish 1.) Due Process -Void for vagueness, 5th and 14th, no ex post facto, needs to be foreseeable, air on side of D a. City of Chi v Morales-Failure to provide notice is void for vagueness (VfV is either too much discretion or no notice) 2.) Cruel and Unusual a. Graham v Florida (2010)- Not valid to give juvenile life in prison, this type of sentence is rejected world over. State of the law in flux. 3.) Equal Protection Clause a. Lawrence v Texas- Cant criminialize certain things like who you can marry, how consenting adults choose to have sex, procreation & contraceptive choices, family relationships

II.)

Actus Reus- Must have done something that caused social harm, voluntarily, not compelled by government, no legal duty for failure to act unless had duty to act, punished for conduct not the type of person you are. Status is not enough (e.g. addiction) Can voluntarily act to give control to a machine (e.g. cruise control) Knowledge of prior condition + reasonably know act will occur (e.g. epilepsy) Culpability is defined by statute Voluntary Act=Conduct crime Voluntary Act-Casual link-Social harm=Results crime 1.) Failure to Act a. 5 Categories when you have duty to Act 1.) Legislatively Imposed 2.) Special Status relationship (Parent) 3.) Contractually assumed duty 4.) Voluntary Assumption and Seclusion 5.) When one creates the harm of risk 2.) Hate Crimes- enhancement laws, hate crime statutes kick up the penalty. Punishing view point of the attacker. Needs to be relevant to the crime (Mitchell) Causation- Part of Actus Reus, to establish criminal liability: 1.) Actual or But-for Cause (Rementer) 2.) Proximate or legal Cause of social harm a. Intervening event i. Dependent intervening event 1. Extraordinarily remote and or attenuated? ii. Intervening Cause Rule: an independent act intervened and caused the outcome 1. Generally relieves wrongdoer of liability of more serious crime, unless cause was foreseeable 2. If intervention was free, deliberate, and informed 3.) Bad Luck Rule: a. Responsible for your actions and any bad luck that follows 4.) Causation Rule: (majority rule) a. Not responsible when results differ enough from what is reasonably anticipated b. Year and a day rule = even if causation is established and victim dies > 1yr+1dy after the injury = not homicide c. Must determine both: (1) Are the imputed acts are the cause in fact of the result? AND (a) But for the actions of A, would B be dead? OR (b) Are the actions of A a substantial factor in Bs death? (2) Are the intended acts the proximate cause (legal cause) of the result? a. Exception: is the result so different, it would be unjust to hold A liable? MENS REA- Kind of moral blame worthiness that ought to make a person criminally responsible for his or her actions Question of retribution. Has to do with mental state. MPC- Only Purposefully, knowingly, recklessly, negligently
2

III.)

If not specified, default rule is recklessness is sufficient i. Intent to do an action, subjectively knowing the act is inherently evil (Culpable thoughts) Levels: 1. Purposefully- Acts with conscious object to engage in prohibited conduct or to cause prohibited result. Is aware of the existence of the attendant circumstances or believes or hopes they exist A.) Just has to be a good faith mistake 2. Knowingly := Subjective intent. Person knows of a fact if he either is aware of the fact or correctly believes the fact exists, Practically certain and aware. A.) Just has to be a good faith mistake 3. Recklessly: Consciously disregards a substantial and unjustifiable risk that a law-abiding person would observe. A.) Objectively reasonable good-faith mistake or if unreasonable, then merely negligent, not reckless 4. Negligently := Objective intent derived from actions, should be aware of a substantial and justifiable risk. A.) Has to be objectively reasonable good-faith mistake Cannot punish thoughts alone, must have some act as well Subjective motive unimportant to crime, but may factor in punishment phase Gap-Filling Rule- If no mens rea, it is still needed. Mens Rea satisfied if person acts purposefully, knowingly, or recklessly with respect to the material element of the offense. At common law rule of thumb, if you acted purposefully, knowingly or recklessly that suffices. Sometimes in common law cases they will occasionally accept negligence. The Ostrich Issue-Have to be aware of high probability + deliberate ignorance (Deliberately Avoiding Acquiring Knowledge)= Knowing 1.) Knowlingly a. Knowledge is a form of mens rea i. cannot claim willful blindness of criminal acts ii. Willfully avoiding actual knowledge of the crime is sufficient to establish knowledge 2.) Criminal Negligence a. Criminal negligence is a form of mens rea. i. To establish criminal negligence, prosecutor must show a gross deviation from the norm OR ii. gross deviation from reasonable conduct 3.) Willfulness a. Willfulness is a form of mens rea i. To establish willfulness, prosecutor must show that the merely knew what he or she was doing ii. Willfulness does not require an evil purpose in all cases Categories of Intent Crimes:

1.) General Intent Crimes: not necessarily an evil intent (e.g. rape). Consists only of description of particular act, without reference to intent to do a further actor achieve further consequences. Ask whether D intended to do proscribed act 2.) Specific Intent Crimes: intent expressly defined in statute (knowingly). D had intent to do some further act or achieve some additional consequence. Example: burglary requires the intent to commit a crime therein iii. Prosecutor must prove had the intent to commit a crime iv. If broke into a house because you are cold, not to commit a crime therein, did not have the requisite mens rea to commit burglary v. Example: assault with the intent to kill vi. Prosecutor must prove that the had the intent to kill victim vii. If shot a gun at A, intending to kill A, but misses and strikes B instead, did not have the requisite mens rea to commit assault with the intent to kill B. Liability without Fault Strict Liability: no mens rea required, only the act. Mental state is quiet in the statute but still need a mental state (Morissette) o Only punished in moderate amount; forces people to be more diligent (e.g. driving a car) Vicarious Liability: youre responsible for the acts of your agents (employer/employee) Statutory Rape: could be totally consensual, but statute defines it as rape (Garnett) Transferring intent: Attempt to kill one person and kill another on accident, intent transfers (Common law) (EX: Snesser in Cal). If actual victim killed as well there no transferred intent because intent was completed. (Birreuta) o Carlson disagrees b. There is no transferred intent in criminal law. c. Look to the crime that is charged against the and determine the mens rea for the crime charged i. Example throws a hammer at A with the intent to kill A. The hammer flies past A and strikes B, killing him instantly. Prosecution charges assault with the intent to kill B. The mens rea element of assault with the intent to kill B is not established because: 2 had the intent to kill A, not B. Therefore, cannot be charged with assault with intent to kill B. HOWEVER, 3 could be charged with Murder II because the mens rea required for Murder II is malice. Malice requires extreme indifference to human life, and throwing a hammer at ones head sufficiently constitutes extreme indifference to human life. d. Rule of Lenity- When it is ambiguous you go with the defendants side. Mistake Defenses/ Mens Rea 1.) So unreasonable as to be reckless? Even if mistake is unreasonable and it is a good faith mistakes, good faith mistakes will negate mens rea when it is a higher level of mens rea. 2.) MPC- Ignorance or mistake defenses if:

i. The ignorance or mistake negatives the purpose, knowledge, belief, recklessness, or negligence required to establish a material element of the offence, OR: ii. The law provides that the state of mind established by such ignorance or mistake constitutes a defense. 3.) Standard of Mens Rea and mistake defense a. Purposefully or Knowingly- Just has to be a good faith mistake b. Recklessly- Objectively reasonable good-faith mistake or if unreasonable, then merely negligent, and not reckless. c. Negligently- Has to be objectively reasonable good-faith mistake. 4.) Mistakes are not a defense for strict liability crimes. Mistake of Fact @ Common Law: only an honest belief is required, turns on distinction between specific and general intent. (Navarro) @ American Law: honest & reasonable belief required Must look in the mind of the accused for answer a. In the process of being born B. Mistake of fact will disprove a criminal charge if the mistaken belief is: i. Honestly entertained ii. Based upon reasonable grounds AND 1. Of such a nature that the conduct would have been lawful had the facts been as they were reasonably supposed to be Mistakes of Law Ignorance not a valid defense Allowed in 3 scenarios usually: 1.) Person reasonably relies on interpretation (Official) of the law that turns out to be erroneous (Entrapment by estoppel)(Marrero, Cheek) 2.) Ignorance of the law can be a D to a crime of knowledge that prohibited conduct is unlawful element of crime. Fair Notice and Due Process. (Lambert) 3.) USSC held the prosecution of a person who lacks fair notice of a legal duty imposed by law can violate due process Need Honest belief that the law allows the action 1.) Only allowable from an official determination/response (NOT valid: self-determination, ignorance, heard from friend/lawyer) Deters fraud, encourages knowledge 2.) @ Common Law: ignorance of the law is no excuse 3.) Malum in se: act is inherently immoral (e.g. murder) 4.) Malum prohibitum: act is made criminal by statute Criminal Homicide 1.) Murder a. Intentional killing with malice aforethought b. General Elements 1.) -Affirmative act 2.) -Malicious state of mind 3.) Concurrence between 1&2
5

4.) Particularized harm (result = death) 5.) Causation (cause in fact & legal cause 6.) Year and a day rule 2.) Manslaughter Elements of Murder and Manslaughter 1.) Malice Aforethought- Mens Rea of Murder a. Intent to kill b. An intent to commit serious bodily injury c. An Abandoned or malignant heart or depraved heart d. Felony Murder Rule 2.) MPC- Does not recognize difference between first and second. Recognizes purposefully and knowingly. Recklessly- depraved and malignant heart. C. Murder I i. Premeditation and deliberation 1. No exact definition of time- Just because a threat take an appreciable amount of time kills the distinction between 1st and 2nd (Bingham). Three guides: a. Planning activity b. Motive c. Manner of killing (Mercy killing in FLA not a defense Gilbert) d. Requires period of reflection (Brown) e. State bears burden of proof to show 1st degree 2. Deliberation-Carefully weighed the pros and cons, rationale evaluation away from emotions. (Brown) 3. Premeditation you thought in advance ii. Felony Murder 1. Unlawful killing of a human being a. During the commission of a felony b. During the attempt to commit a felony, or c. While in flight after the commission of a felony i. Does not last forever but ii. Must be one criminal transaction iii. Needs to be part of one continuous transaction. Escape rule expands culpability, need to reach place of temporary safety (Bodely) d. Death of co-felon not liable but if non co-felon then you will be held liable. (Canola) 2. Predicate felony a. Inherently dangerous Activity to human life i. Look at the felony in the abstract, not the particular facts of the case 1. Exarmed robbery is a felony and is inherently dangerous to human life 2. Eximpersonating a government official is a felony but not inherently dangerous to human life

3. ExEx-felon owning gun reasonable and foreseeable risk of death (Hines) 4. Fleeing robbers run someone over with car (Bodely) ii. Abstract- If you can picture a way that there is possibility that you can violate text of the statute in nondangerous way makes the crime not inherently dangerous. (James) 1. Look at it on the facts- Look at what D did, was it dangerous or was it not? iii. Either/or: If either way is seen as dangerous, D is liable iv. Crimes that give 1st degree in WA 1. Robbery 1st or 2nd 2. Rape in 1st or 2nd 3. Burglary in 1st or 2nd 4. Arson in 1st or 2nd 5. Kidnapping in 1st or 2nd v. Crimes that give 2nd degree in WA 1. Any other felony including assault b. Cannot be predicated on assault (Not in WA) (Smith) i. Merger doctrine- Where felony is integral part of the homicide one cannot be guilty of both the felony and felony murder. (Smith) 1. Every murder requires an assault 2. If any assault resulted in death, could be charged with felony murder every time (which is first degree murder in most jurisdictions) 3. Legislature did not intent to convert every assault resulting in murder into first degree murder (Felony murder) 4. Therefore, assault can never be the predicate felony for purposes of felony murder because it merges with the resulting homicide 5. EX- Breaking in with intent to assault-Merged a. Breaking in with intent to steal- Not merged (Felony gone wrong) c. Agency Rule i. Responsible for any deaths that take place whether you caused them or not, in the course of your crime. Includes getaway driver. 1. Not responsible for co-felon death d. Look to the Statute i. Enumerated felonies within statute 1. Burglary, robbery, arson etc. 2. No enumerationduring commission of felony CHOOSE
7

a. Inherently dangerous to human life b. Any felony, or c. Intent to commit a felony 3. Mixedenumerated and any other felony CHOOSE a. Inherently dangerous to human life b. Any felony, or c. Intent to commit a felony e. Take the Victim as you find them, Strict liability (Stamp) 3. Death Penalty for felony murder? The death penalty may be imposed where there exists no specific intent to kill but rather, the defendant knowingly and substantially participated in criminal activities known to carry a grave risk of death. (Tison) D. Murder II- Heat of the moment i. Malice 1. Unlawful killing with malice(Depraved Heart murder) a. Malice is Extreme indifference to human life. Gross recklessness is malice implied. b. Phillips Test (Knoller)- Malice implied when killing is proximate cause of an act that the natural consequences of which are dangerous to life. The act needs to be deliberately performed by a person who knows that his conduct endangers the life of another and who acts with conscious disregard for life. c. Examples i. Russian Roulette (Malone) ii. Club Fire where fire doors blocked (Welansky) iii. Cooking meth in trailer with kids (James) iv. Driving speed boat through a crowd of swimmers v. Firing gun into an occupied room vi. Throwing stones from roof of tall buildings E. Manslaughter i. Unlawful killing without malice 1. Voluntary Manslaughter a. Intentional killing in the heat of passion with sufficient provocation. Provocation=heat of passion defense, D culpability is mitigated, due to cultural sympathy for loss of self-control i. Adequate provocation recognized by law ii. Actual provocation iii. Words are sufficient in some circumstances 2. Three Tests (Wife in adultery) i. Early common law (categorical) test 1. Could kill (Provocation) in response to: a. Aggravated Assault b. Observation of serious crime against close relative c. An illegal arrest
8

d. Mutual Combat e. Catching ones wife in the act of adultery 2. Provocation was considered matter of law not fact 3. Mere words Not enough to constitute provocation a. Exceptions to Mere words i. Ambro- mere words along with continual provoking by wifes led to a provocation defense. ii. The modern reasonable man test (Berry) Jury must find: a. Defendant actually acted on heat of passion b. Heat of passion provoked by an act or event that would also provoked a reasonable person to lose self-control if in that situation. c. Defendant did not have sufficient time to cool off d. A reasonable person in defendants position would not have sufficient time to cool off. Must also be a causal connection between the provocation, the passion, and the killing e. Who is reasonable person?--> An ordinary person of either sex, not exceptionally excitable or pugnacious, but possessed of such power of self-control as everyone is entitled to expect that his fellow citizens will exercise in society as it is today.Not controversial to look at age and gender for the reasonable person. Courts willing to look at personal experience traumas to see why someone reacted in a certain way. iii. MPC extreme mental or emotional disturbance Under the influence of extreme mental or emotional disturbance for which there is a reasonable explanation and excuse Subjective test Dumlao- Take into account D characteristics, includes mental abnormalities, his viewpoint needs to be reasonable. Washingtons approach is to knock it down from 1st degree to 2nd degree not to voluntary manslaughter. 3. Involuntary Manslaughter a. Criminal Negligence i. Reasonable person could foresee risk of great bodily harm or death OR/AND? ii. Gross deviation from the reasonable standard of care

F.

b. Misdemeanor Manslaughter- Misdemeanor + kill = Involuntary Manslaughter (Todd) i. Death during the commission of a misdemeanor 1. Misdemeanor must carry reasonably foreseeable risk of appreciable physical injury 2. proximate cause- boils down to whether the court thinks it just 3. Higher standard of causation used Capital Murder (death penalty) i. 8th Amendment Proportionality Principle: Limits on the Power to Prescribe the Death Penalty Edmund-No death for minor participant in felony resulting in death Coker-No Death for rape Kennedy- No death for child rape Roper- No death for juvenile offenders Atkins-No death for mentally handicapped ii. Constitutional Policy Debate 1. Furman v GA (1972)- Outlawed death penalty, but States still tried to get around it 2. Gregg v Georgia (1976)- Said death penalty was per se constitutional. Only death given with aggravating factors: a. Victim was law enforcement officer performing official duties b. Murder of judge, witness, juror, attorney in official duties c. Killed more than one person and the murders were part of common scheme or plan or the result of single act of D d. Murder committed in course of robbery, rape, burglary, kidnapping or arson e. Pattern or practice of harassment or assault on family or household member within a five year period regardless of prior conviction iii. Race and Capital Punishment 1. To prevail under the EPC, D must prove that the decision makers in individual case acted with discriminatory purpose. While the Supreme Court had been willing to consider statistical evidence before, the Supreme Court held that in the present case and others like it, the decision was made by a unique jury. (McKlesky) iv. Victim Impact Evidence 1. Objectivist view, part of the social harm of the defense. Relevant to adjudicating the crime. (Payne) No ban.

II.

Assault A. Attempt with unlawful force to inflict bodily injury upon another B. apparent present ability give effect to the attempt if not prevented. i. Completed battery is an assault ii. Victim apprehension is not required

10

III.

IV.

Battery A. Intentionally or knowingly without legal justification and by any means causes bodily harm to an individual B. Aggravated Battery: intentionally or knowingly w/o legal justification and by any means causes bodily harm to an individual Rape A. Common law rape i. Unlawful carnal knowledge of a woman (Not wife) without consent + Force + Consent + Resistance ii. Element of Force 1. Slightest penetration is sufficient (MTS) 2. Offense of forcible rape occurs when, during apparently consensual sex, victim expresses an objection and attempts to stop the act and D forcibly continues. (John Z- only put hand on waist was enough force) 3. No force if there is consent. a. Still can be held for consent predicated on incapacity to consent (Mentally challenged- Scherzer) b. NJ Court very liberal in approach to rape. Made force into consent in MTS, want to remove barriers to prosecute. 4. If threats separated for the actual incident of rape it is not force. The actus reus needs to be when they were having sex or about to. (Alston) iii. Element of Consent1. Act of sexual penetration without freely given consent is force. iv. Element of Resistance 1. Resistance is flip side of force. No need for force if there is no resistance (Berkowitz) v. Spousal immunity from rape in the common law 1. 24 states and DC have eliminated spousal immunity. vi. General Intent Crime 1. No mens rea adjective at common law even negligence might suffice. 2. General suspicion of victims due to social penalties associated with unmarried sex. 3. Mens rea is shown by the force element. B. Statutory Rape i. Age limit ii. Consent is immaterial

11

C. Death Penalty for Rape? i. No, citing Romer, death for Rape is not proportional punishment. (Kennedy v LA) D. Rape Shield laws No longer are we going to confer consent or not due to her conduct and chastity. i. Exception: A written pretrial motion shall be made by the Dpast sexual action of victim allowed if it shows unique pattern that is similar to case at hand. E. Expansion of what we think of as rape. New laws include what common law left out (Men, anal, oral, etc) OFFENSES AGAINST THE HABITATION I. Burglary (common law) A. Breaking and entering the dwelling of another in the nighttime with intent to commit a crime therein i. Dwelling 1. Requires occupancy a. No occupants = no dwelling ii. Breaking 1. Actual breaking a. Slightest application of force is enough 2. Constructive a. Threat of violence b. Conspiracy c. Fraud 3. On roof is not actually entering the 4 walls (Eichman) 4. Must be unauthorized entry otherwise it is theft (Thibeult) iii. In the nighttime 1. Historically, when one could not see anothers face 2. Usually defined ex-time of sunset to sunrise (6:00 pm - 6:00 am) 3. Largely discarded today iv. Intent to commit a crime therein 1. Must be at the time of breaking 2. Usually, the crime is larceny BUT 3. All crimes sufficient B. Burglary Codified i. Every person who enters any house, room, apartment, tenement, shop, warehouse, store, mill, barn, stable outhouse, or other building, tent vessel, railroad car, trailer coachor any structure which has walls on all sides is covered by a roof with the intent to commit larceny or any felony is guilty burglary. II. Arson A. Malicious burning of the dwelling house of another i. Actual ii. Malicious iii. Dwelling of another iv. Habitation of another 1. Extended to include ones own home

12

a. Insurance fraud OFFENSES AGAINST PROPERTY I. Common Law Larceny (Theft began as larceny) A. The trespassory taking and carrying away of the personal property(actus reus) of another with the intent (Mens Rea) permanently deprive owner of property i. Personal Property 1. Some value or inherent value is sufficient 2. Illegality is immaterial a. Exlarceny from a thief 3. Historically, larceny must have been severed from the land and not part of the realty ii. Of Another 1. If the property is your own, Liens or property rights may transfer your property to property of another for purposes of larceny a. Exmechanic has lien on your car. If you tell the mechanic, let me take my car for a spin and never return to pay for his services, it could be a larceny because he has a lien on your car. 2. Distinguish between custody and possession a. Larceny is a crime against possession. i. ExEmployer gives you five dollars to go buy apples, but you use the five dollars at the local bar instead. You have taken the property of another (the five dollars) because the employer had legal possession of the five dollars. ii. ExEmployer gives you five dollars to go buy apples. You buy the apples, but you never return to the employer. You have not taken the property of another because the employer never had possession of the apples. (This would be embezzlement). iii. Taking 1. Physically taking the property OR 2. Being the instrumentality of the taking a. Extelling someone, I will sell you these hogs for $200 but the hogs do not belong to you. The buyer pays you the money and physically carries them away. Although the buyer physically carried the hogs away, the taking element is met because you were an instrumentality of the taking. iv. Trespassory 1. Physical trespass OR 2. Taking by use of fraud 3. Doctrine of Continuing Trespass a. If original taking is trespassory, but no intent to take has been formed at that time, the trespass continues until the intent is formed. b. ExYou go to a party and the host tells you, leave your coat on the bed in the guest room with all the other coats. After many
13

drinks, you go to the coat room and take a coat, but it is not yours. The next morning, you awake with a headache and a new coat, but you decide to keep the coat that you took instead of returning it. This would constitute a trespassory taking although you did not form the intent to take that coat at the time of the taking (because you were shit-faced). v. Carrying Away 1. Asporation a. Item must be moved i. Slightest asportation is sufficient vi. Intent to steal 1. If property is stolen for a limited purpose, then abandoned, the requisite intent to steal is formed if a. The taking creates a considerable risk of permanent loss to the owner i. Difficult or unlikely that the owner could recover the property. 2. Mens Rea and Actus Reus need to be at same time Grand Larceny A. The trespassory taking and carrying away of the personal property of another with the intent to steal the same i. Value 1. Grand larceny requires a breakpoint for value to distinguish it from petty larceny a. Look to the actual value of the item taking i. Testimony from experts ii. Price tags Robbery A. Larceny from the person by violence or intimidation i. Trespassory taking and carrying away of the personal property of another with the intent to permanently deprive the owner. ii. From the person 1. Expurse-snatching 2. Immediate presence expanded to the in progress of the robbery, including time of asportation. (Miller) iii. Violence or intimidation 1. Exthreaten with gun, knife, or use force 2. Need force 3. There is no requirement that the property actually be taken. iv. Aggravating factors 1. From victims person or immediate presence and 2. Accomplished by the use of force or fear Embezzlement A. The fraudulent conversion of personal property by a person to whom it was entrusted either by or for the owner

II.

III.

IV.

14

V.

i. NOT A LARCENY because embezzler has possession ii. Does NOT require asportation iii. Example: B works for X company, employed to haul 105 refrigerators to Seattle. On the way to Seattle, B calls A in San Diego and asks if A would like to buy Bs refrigerators. A says ok, and truck driver arrives. Truck driver breaks the company seal, shows A the refrigerators and says, We got a deal? A, reluctant because he notices the seal was X companys copyright, says, Ill be right back and then calls the police. Truck driver is arrested. 1. ApplicationTruck driver committed embezzlement, as opposed to larceny, because B already had lawful possession of the refrigerators as an employee of X company. There is no question the refrigerators are personal property. X Company, owner of the refrigerators, entrusted B with the refrigerators by permitting B to haul the refrigerators to Seattle. B fraudulently converted the refrigerators to that of his own because he called A in San Diego and B represented that he had his own refrigerators to sell, although the refrigerators were in fact X Companys. While B never moved the refrigerators out of the truck, no asportation is required to convict for embezzlement. Breaking the seal and showing the storeowner was sufficient. B. Elements of Embezzlement i. Intentional Conversion ii. of property of another iii. by someone who is already in lawful possession of it. Larceny by trick A. differs from false pretenses i. title difference, constructive possession. If you retain constructive possession its larceny by trick. ii. Credit-larceny by trick. Bank account- false pretenses False Pretenses A. Knowingly and designingly obtaining property of another by means of untrue representations of fact with the intent to defraud. i. Elements of False Pretenses 1. False Statement of fact 2. Causes the victim 3. To pass the title to the defendant. 4. D must know statement is false AND 5. Thereby intend to defraud victim ii. DISTINGUISHED from larceny and embezzlement because Criminal actually gets title to the property by means of false representation iii. Misrepresentation of present circumstances certainly can lead to a conviction 1. Examplesetting the odometer back on a car before selling and receiving money for a car 2. Altering the a in a Manet painting and selling it as a Monet for money. 3. Mills- Pension scam iv. Promissory (future) fraud does not constitute false pretenses.

VI.

15

1. Promises to pay in the future is inherent in prison transaction. The failure to pay after a false promise finds a remedy in civil litigation, not criminal. Otherwise, criminal courts would be creating debtors prison. VII. Theft A. Theft by Deception i. makes a misrepresentation to acquire property ii. Victim is actually deceived 1. Relies in whole or in part on the misrepresentation B. Receiving Stolen Property i. Where receives property ii. With knowledge that it is stolen 1. Indicia that goods are stolen a. Examplebrand new item sold for $200 less than the actual price iii. Depending upon the value of the property, the punishment may be a misdemeanor or felony. See Grand Larceny, supra Offenses against Property C. Extortion i. Corrupt collection of an unlawful fee by an officer under color of his office 1. Obtaining property by threat, though not immediate. 2. Used to be a public officer needed for extortion. Now days it means knowingly

DEFENSES I. Necessity of an Act a. Before imputing criminality on behavior, an act is required. II. What constitutes an act a. Conscious choice of a course of action i.) Exampleknowing he was subject to epileptic seizures at any given moment, gets into a car and drives away, later has a seizure, and kills a woman. III. Criminal Law Defense a. Case-in-Chief Defense i.) Failed burden of proof. 1. Burden of Proof: Must prove beyond a reasonable doubt the guilt of the accused a. Most juris do not define it, & the MPC does not define it i. NC: sane, rational doubt based on reason and common sense; you must be fully satisfied and entirely convinced of s guilt b. Shifting the Burden: Pure statutory creation, shifts burden from the State to the c. Presumptions at Law i. Permissible: jury may, but is not required, to assume mental state from actions ii. Mandatory: jury must assume mental state from actions, but may contend iii. Irrebuttable: jury must assume mental state from actions, & cannot contend IV. Affirmative Defense
16

i.) D attorney admits government met burden of proof but D should be acquitted for another reason ii.) Accomplice liability- if justified all not guilty, if excused then that person gets off but not the rest of the accomplices. b. Justification Defense- Justifications (Focus on crime)- Self-defense, defense of property, defense of habitation, defense of others, crime of prevention, necessity i.) Self-Defense 1. Common-law-Must be non-Aggressor- Reasonable belief use of unlawful force against you is imminent Response 1.) Reasonable belief of necessity 2.) Must be proportionate 2. Elements a. Threatened with an imminent threat of unlawful force AND b. The force that was used was necessary to repel the threat proportionately to the threat. i. Imminence, necessity, and proportionality requirements 1. Not always absolute 3. Duty to Retreat a. Common law required retreat to the wall, but can stand your ground in your house. Vic strikes first blow in the driveway, under common law you had to retreat and castle doctrine 4. Privilege to use NON-DEADLY force in the effort to avert harm threatened (actually or apparently) by the wrongful act of another depends upon a. Reasonable belief of the defender b. Under the circumstances as they appear at the moment 5. Privilege to use DEADLY force is invoked IF a. Defender reasonably believes he is in immediate danger of b. Death OR c. Serious bodily injury UNLESS d. Retreat rule applies i. If defender can reasonably escape without endangering himself ii. Defender must retreat before resorting to deadly force e. If the Retreat rule does not apply i. Deadly force is permitted if: 1. Reasonable belief of immediate danger of death or serious bodily injury a. At common law you had to retreat to the wall before you could take deadly force against assailant. However, American culture has changed this common law standard. 6. How to restore your ability to claim self-defense a. Announce intent to withdraw b. Attempt in good faith to do so 7. Reasonableness a. Only can be convicted of lower crimes of mens rea if you were unreasonable under the MPC.
17

b. objective standard in a reasonable person in similar circumstances (Goetz, Simon) 8. Battered spouse self-defense (Stewart) a. For self-defense to be applicable, the must reasonably believe that an aggressor: i. intended to take her life, ii. attempted to take her life, or was in an apparent situation to do so, AND iii. induced her into a reasonable belief that he intended to take her life immediately b. Generally, no one can attack and kill another because he may fear injury at some future time. In spousal abuse cases, the danger can still be imminent if the attacker is sleeping because it may be just a momentary lull in the violence. However, the key to is whether there was a reasonable belief that she was in imminent danger, not whether she subjectively believed that killing him was a justifiable solution to the repeated pattern of abuse. c. Look at evidence to see if there were alternate means to escape thus her fear of imminent danger was not objectively reasonable, even if it was her honest belief. ii.) Imperfect self defense 1. Subjective belief that life is threatened BUT 2. That belief is unreasonable a. EX- Porch not a dwelling (Brown) 3. Middle ground, mitigation principle from murder to voluntary manslaughter iii.) Defense of Others (Young) 1. Definition: When Protecting someone else under attack D needs to believe honestly and reasonably that force was necessary. 2. Use of NON-DEADLY force to protect another is permitted if a. Defender reasonably believes the other is subject to criminal behavior 3. Use of DEADLY force to protect another is permitted if a. Defender reasonably believed the other could not protect himself from i. Immediate death OR ii. Serious bodily injury 4. Common Law- alter-ego hero stands in the shoes of the person s/he is attempting to help. If third-party has valid self-defense claim the hero does AND must be in special status relationship with person aided 5. Contemporary Approach- May use force in defense of 3rd persons where it reasonably appears immediately necessary to defend against immediate harm. iv.) Defense of Property

18

1. Must reasonably believe force in necessary to prevent imminent, unlawful dispossession of the property a. Once disposed, right to use force ends unless one is in hot pursuit 2. Privilege to use NON-DEADLY force IF a. Reasonably necessary to protect ones property i. Real or personal b. Employs no more force than necessary to accomplish this purpose i. No trap guns (Ceballos) v.) Defense of Habitation (Narrow, middle, broad approaches) 1. Common Law- Deadly force allowed to prevent entry 2. NON- DEADLY force permitted IF a. Reasonably necessary to prevent i. Unlawful harm or injury to habitation OR ii. Prevent any unlawful intrusion 3. DEADLY FORCE is permitted IF a. Reasonably necessary to prevent i. Burglary OR ii. Arson vi.) Necessity 1. Definition: Nature made, this nature made element has begun to erode. Choice of evils, life vs breaking in to a store for food, we want you to choose life. All about physicality (Regina) 2. Common-Law Necessity: Process of evaluation: (648) a. Triggering condition Clear and imminent danger b. Balance of Evils Harm avoided must be greater than harm the defendant would likely cause by law breaking c. Causation Reasonable belief that illegal conduct will abate the threatened harm d. Necessity No effective legal alternative e. Balance not previously legislatively struck Lawmaker must not have previously anticipated the choice of evils and determined the balance to be struck f. Clean hands D not at fault 3. MPC : Necessity Actor faces a harm or evil Law breaking a. Actor must believe conduct necessary to avoid harm or evil b. The harm or evil sought to be avoided is greater than that sought to be prevented by the law defining the offense charged c. Excuse Defenses- Lacks moral responsibility for her actions Reasonable person caught in unreasonable circumstances Excuses (Focus on actor) - Duress, Insanity, diminished capacity, intoxication i.) Duress (Coercion)- Threaten with physical force unless they commit the crime. Manmade necessity, all about physicality 1. Common law Elements: (Contento-Pachon) a. D acted in response to imminent threat of death

19

b. D had reasonable fear that threat would be carried out unless they committed the crime c. D had no reasonable opportunity to escape threated harm 2. If a crime is committed under serious duress, threat of serious bodily injury or death, the crime may be excused UNLESS: a. The act done under duress is the killing of another innocent person 3. MPC- Reasonable firmness would be unable to resist. a. Not all or nothing, reckless or negligence. b. Biggest difference from common law is imminence, it is cut out under MPC. No question of how imminent c. Homicide okay sometimes, many states have exception for felony murder, especially by associates. 4. Some Jurisdictions making batter woman syndrome a duress defense ii.) Intoxication 1. Voluntary intox defense allowed in specific intent crimes, but not general. Specific intent could be a negation therefore an element of the crime is missing (mens rea) a. Common-law no excuse, get drunk commit a crime we condemn you. Hold you to sober standard even if you are drunk. b. Due process does not require state to allow to present a voluntary intoxication defense. (Montana) i. States may even eliminate this defense by statute 2. Involuntary intoxication Four categories when allowable defense: (Smith) a. Where the intox was caused by the fault of another b. Where intox was caused by an innocent mistake on the part of the defendant c. Where a defendant unknowingly suffers from a psychological condition that renders him abnormally susceptible to a legal intoxicant d. Where unexpected intoxication results from a medically prescribed drug 3. Washington law on intoxication- No act committed by a person while in a state voluntary intoxication shall be deemed less criminal by reason of his conditions, but whenever the actual existence of any particular mental state is a necessary element to constitute a particular species or degree of crime, the fact of his intoxication may be taken into consideration while considering mental state iii.) Insanity 1. 3 sentences a. Incompetent to stand trial b. Not guilty for reasons of insanity c. Execution not valid for insane 2. McNaughton Test- Because of mental disease or defect D either cognitive prong- did not know the nature and quality of his act OR moral

20

prong: even if he did know the nature and quality of the act, he did not know that was wrong. a. did not know what he or she was doing b. did not know right from wrong c. Irresistible impulse test- Adds third prong to MNaghten test, volitional prong: D is excused if driven to commit a crime by irresistible and uncontrollable impulse 3. Durham/McDonald Test- - An accused is not criminally responsible if his unlawful act was the product of mental disease or defect a. If was insane at the time of the crime, is not guilty 4. Insanity Defense Reform Act changed prior insanity defenses a. Before the Act, prosecution had the burden of proving, beyond a reasonable doubt, that the was either i. Unable to appreciate the nature of his or her acts OR ii. Unable to conform conduct to the requirements of law, typically known as the irresistible impulse test. b. The Act eliminated the irresistible impulse test. Thus, Insanity attaches IF i. is unable to appreciate the nature of his or her acts ii. proves this by clear and convincing evidence WITHOUT iii. The aid of experts testifying to the ultimate issue of s insanity ( is/is not insane) 5. Post-Hinckley hybrids- 18 USC $ 17 (a): D is excused if he proves by clear and convincing evidence that as the result of severe mental disease or defect he was unable to appreciate a. the nature and quality of her conduct OR b. the wrongfulness of her conduct 6. MPC 4.01- Cognitive prong- D is relieved of responsibility if, at the time of the crime as a result of mental disease or defect, he lacked a. substantial capacity either to appreciate the criminality (wrongfulness) of his conduct OR b. volitional prong: he lacked substantial capacity to conform his conduct to the requirements of the law 7. Diminished Capacity i. with diminished capacity cannot formulate premeditation ii. Distinguishing COMPETENCE and INSANITY 8. Hinckley Turning point- Reversion back to MNaghten and sometimes even stricter, D has to prove to jury he or she was insane. 9. Washington Approach- basically looks like MNaghten with burden on D to show beyond preponderance of the evidence iv.) Entrapment 1. Federal System and Majority View in the States: Focus on s Conduct a. Entrapment is not a valid defense IF i. was PREDISPOSED to the criminal behavior in question
21

V.

2. Minority View (California): Focus on Law Enforcement Officers conduct a. If action of government officer is likely to induce a normally law abiding person to commit the offense, entrapment exists. i. Does not necessarily eliminate the predisposition requirement ii. Focuses more toward government Attempts- An act done with intent to commit a crime and tending but failing to effect its commission (Rizzo). Less serious than target offense. a. Actus Reus: An array of standards Focus on how far actor went Focus on how close to commission actor came Three main factors o Proximity to tangible harm o Seriousness of threatened harm o Whether conduct manifests criminal intent Common law objectiveness- Actual harm of the act, due to felonies used to require death penalty, want you to be very close to commission, beyond mere preparation. o Felonies intent alone not enough, needs overt act and immediate nearness (Rizzo) i.) MPC-Substantial step towards the commission of a crime with intent to commit the crime. 1. Applies to virtually all crimes 2. Intent determined by viewing the totality of the circumstances 3. MPC- Same bad intent punished the same, attempted murder (bad shot) vs murder (good shot), except when it comes to the death penalty b. Mens Rea of Attempt i.) You can have double inchoate crime, inchoate crime on top of inchoate crime ii.) If didnt succeed in killing the actus reus is less so we demand more for mens rea, so need intent to kill not bodily harm, if actual murdered then intent to bodily harm would be ok iii.) Intent at common law meant- a harm was likely to occur from the act even if you didnt act with the purpose of harming something. EX: baby/wife/ run down with car iv.) MPC- allows punishment for wider variety of purpose v.) Can you attempt a felony murder? No, intent irrelevant, same with involuntary murder c. Defense of Impossibility i.) Factual impossibility- Not a defense, it is just an attempt (Thomas) ii.) Hybrid legal- Not a defense iii.) Pure legal impossibility- Really not a crime even if you thought you were committing a crime 1. Legal Impossibility occurs where a law states that a person cannot be convicted of a crime.

a. The underlying rationale is that attempting to do what is not a crime is not attempting to commit a crime
22

b. ExampleFake heroin Case: attempted to sell a substance he though was heroin and which turned out to be an uncontrolled substance. cannot be convicted because the statute does not prohibit the sale of fake heroin. c. One can commit attempted assault because an assault also occurs when places one in fear or apprehension. Therefore, it is no defense to claim impossibility to an attempted assault. d. Defense of Abandonment i.) Criminality cannot be imputed on a who has voluntarily abandoned the crime before the crime has been committed. ii.) Needs to be a change of heart (Latraverse) 1. no defense at common law because actus reus was committed 2. MPC wants to encourage change of heart 3. Silent on abandonment in WA, but once committed Actus Reus there cannot be abandonment e. Solicitation i.) toward contemplation ii.) solicitation has a strong mens rea requirement. Some solicitation is states punish solicitation the same as attempt (WA), though others punish attempt more severely (but cf., CAless). iii.) At common law, to succeed on a solicitation charge, the prosecutor must prove beyond a reasonable doubt (BRD) that D: 1. intentionally hired/requested that another commit a specific crime and: 2. acted with the specific intent that the other person commit that crime. a. The common law, narrower than the MPC, requires that the solicitor requested that the OTHER commit the substantive offense, which must be a felony. The other, however, need not follow through Accomplice Liability a. Accessories before the fact- Accomplices, acted encouragement before the crime b. Principal 1st- Does act c. Principal 2nd- At scene and helps principal in the 1st d. Accessories after the act- Helps after crime i.) cant be held for accomplice liability, only obstruction of justice ii.) Aiding and abetting is derivative liability, still part of original crime (Parker) e. Hyper technical distinctions- gotten rid of with the fall of felonies=capital punishment f. Elements: i.) Intent to aid + Active assistance, encouragement, solicitation, or failure to prevent if one has a legal duty to do so PLUS; ii.) Intent that the offense be committed by the principle (Or at least have the same mens rea as required for the offense) PLUS; iii.) Liability for crime by the principal that one aids/abets 1. Largely discarded- common law: Liability for uncomtemplated crimes are natural and probable consequences of the actions. g. Case Examples: i.) Mere presence not enough, dont punish you for your lack of help (Pace) ii.) Need intent to commit the crime (Wilson)
23

VI.

iii.) Can be held if passenger in drunk driven car (Brewer- Depraved heart murder) h. Intent at common law- (Higher) Acting with the conscious object (Purposely). (Lower) Acting with knowledge/ belief that prohibited result or conduct is virtually certain to occur (Knowingly) i.) Attempts: Most jurisdictions require higher intent (Conscious object that crime be committed) i. Accomplice liability Conspiracy- Jurisdictions are split- Some require higher intent (Conscious object that crime be committed) While others either conscious object or knowledge i.) Either way cannot or conspire to commit specific intent crime ii.) Accomplices have derivative liability. VII. Conspiracy a. Definition:A conspiracy occurs where there is an agreement among two or more persons to commit an unlawful act, or to do a lawful act by criminal or unlawful means and any co-conspirator performs a subsequent overt act in furtherance of the conspiracy. i.) Inchoate offenses- conspiracy can be as soon as the agreement is made under the common law. Today, you need an agreement plus an overt act. ii.) MPC on conspiracy merger doctrine between conspiracy and the crime that is object of conspiracy b. Pinkerton Rule: Each co-conspirator is liable for all the foreseeable substantive offenses committed by any conspirator (Mothersill) 1. This is a device to impute criminal responsibility on persons who take part in the conspiracy but do not commit the substantive offenses resulting from the conspiracy. 2. Conspiracy is a crime independent from the substantive offenses ii.) 3 factors finding Pinkerton liability (all 3 factors must be met) 1. Furtherance of conspiracy 2. Scope of conspiracy 3. Reasonably foreseeable in accomplishing goals of conspiracy iii.) Conspirators need not know each other or be privy to the details of the operations, acts committed, or other foreseeable acts, so long as the conspirators have knowledge of the conspiracys general purpose and scope. c. Actus Reus of Conspiracy (The Agreement) i.) Need reason to know that there are other people out there that are part of your conspiracy. ii.) Need bilateral meeting of the minds, cannot just be unilateral (Pacheo) d. Mens Rea of Conspiracy i.) Specific intent crime: 1. Intent to enter into an agreement 2. Intent to commit or aide in the commission of the acts or acts constituting the target crime. i. Conspiracy murder is usually 1st degree because had premeditation and intent to kill because you agreed with other people (Swain) 3. Ways to infer intent from knowledge: (Lauria)
24

i. ii. iii. iv.

Stake in the venture Goods and services that have no legitimate use Grossly disprotionate volume for the illegal purpose Serious crimes- balance struck by legislature

e. Wharton Ruleif the criminal act requires two people, conspiracy cannot be charged. i.) Examplebribery, receiving stolen property, or adultery. In all cases, you cannot have a conspiracy because there is no agreement in the conspiracy sense. f. Impossibility Defense i.) Not valid in most cases(Recio) g. Abandonment IssuesCan a withdraw from the conspiracy? i.) Once there is an agreement and an overt act, the conspiracy is formed, and since conspiracy is an independent crime, the crime is completed. cannot abandon THE CONSPIRACY at this point. ii.) If the conspiracy is formed, and the voluntarily abandons BEFORE any subsequent substantive offenses take place, will still be liable for the conspiracy BUT WILL NOT be responsible for subsequent substantive offenses committed after the abandonment. iii.) HOWEVER, while may voluntarily abandon, and even if does, will probably have to call the police or prevent any subsequent offenses from occurring in order to save his ass. iv.) In WA, once you have agreement the crime is done. There is no withdrawal defense to conspiracy. Can be a defense to accomplice liability (MPC). Requires communication of withdrawal to each member of conspiracy and sometimes try to dissuade them from continuing to go forward and manifest complete voluntary membership. h. Enterprise liability requires an enterprise and a pattern of criminal activity. This is a method of imputing criminal responsibility on an individual, usually imposed by statute, such as RICO. i.) An enterprise is a group of persons associated together for a common purpose of engaging in a course of conduct. ii.) A patter of criminal activity is defined by statutethe statute usually outlines the requisite acts. iii.) Applies to both criminal and non-criminal organizations. iv.) RICO cases are usually criminal and civil, and s are usually encouraged to bring RICO action in civil court through the imposition of treble damages. Incorporation i. Criminal responsibility may be imputed on a corporation if the intent to commit the criminal behavior is shared by agents and upper-management. i.) Such upper-management must either authorized actions by the agents of the corporation OR ii.) Acquiesce to the actions by the agents. j. A statute may attach criminality to corporate behavior regardless of intent i.) If corporation is found guilty, state may impose a substantial fine in lieu of a prison sentence, since it is difficult to imprison a corporation. .
25

SENTENCING DISCRETION I. Federal sentencing guidelines a. Determines minimum and maximum sentence for particular crime/ based on several factors b. ALL judges bound by the guidelines II. If a cooperates with the prosecutor, judge has discretion in sentencing III. Prosecutor MUST SIGN to give judge that discretion over the particular IV. Mandatory Minimums a. E.g., three strikes rule: PROSECUTOR files the three convictions b. If charge will be s third, prosecutor can decide whether or not to file the prior two conviction

26

27