final- criminal law outline

8/18/2019 FINAL- Criminal Law Outline

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CRIMINAL LAW OUTLINE

CHAPTER ONE- INTRODUCTION: SETTING THE STAGE

A. Nature, Sources, an L!"!ts o# t$e Cr!"!na% La&• T$e "et$o o# Cr!"!na% La& operates by a series of commands, formulated in general

terms, telling people what they must or must not do.

o Two scholars have defined a crime as "any social harm defined and made

punishable by law."o The Model Penal Code has greatly influenced criminal law reform.

'. Cr!"!na% La& !n a Proceura% Conte(t: Pre-Tr!a%

• According to the NC!, #.$ million people % or older, were victims of violent or

property crimes in %&&.

• 'owever, only about (&) of violent victimi*ations and +&) or property crimes were

reported to aw -nforcement Agencies. /.!.0ept. of 1ustice, 2ureau !tatistics.• 3n many states and in the 4ederal !ystem, the accused may not be brought to trial

unless they are indicted by a grand 5ury.

C. Cr!"!na% %a& !n a Proceura% Conte(t: Tr!a% )* +ur*

• T$e S!(t$ A"en"ent says that "in all criminal prosecutions, the accused shall en5oy

the right to a speedy and public trial, by an impartial 5ury."

• 'uren o# Proo# #or a C!!% Case More li6ely than not it7s true.

• 'uren o# Proo# #or a Cr!"!na% Case 2eyond a reasonable doubt 8firmly convinced9

D. Proo# o# Gu!%t at Tr!a%• . Proo# 'e*on a Reasona)%e Dou)t

o 2urden of Proof re:uired in a Criminal case.

• . En#orc!n/ t$e Presu"0t!on o# Innocence

o O&ens . State 4ound asleep in a private drive, with beer in between legs, and

car running. At trial, Owen argued there was insufficient evidence to prove he had

been driving drunk on a public highway. The trial court found him guilty.

Issue; 3s circumstantial evidence alone legally sufficient to prove guilt at

trial< 1es. Ru%e: A conviction may be based on circumstantial evidence alone if the

circumstances are such that they are inconsistent with any reasonabletheory or argument there may be defending their innocence.

Ho%!n/: =es. 3n the absence of direct evidence, the 5ury must ma6e

reasonable inferences from circumstantial evidence to determine whether acriminal defendant is guilty A 5ury should not rely solely on theseinferences to convict a defendant unless the circumstances areincompatible with any reasonable theory of innocence


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• Presu"0t!on o# Innocence: The relevant in:uiry is whether, after viewing the evidence

in the light most favorable to the prosecution, any rational trier of fact 85ury9 could have

found the essential elements of the crime proven beyond a reasonable doubt.

Presumption of Innocence on Appeal

o 0efendant files an appeal based on "insufficiency of evidence" 8failed to

overcome the presumption of innocence9. The 5ury is in better position toresolving conflicting factual claims, so how should an appellate court resolve sucha claim<

E. +ur* Nu%%!#!cat!on

1. Jury Nullification- A sanctioned doctrine of trial proceedings wherein members of a 5ury

disregard either the evidence presented or the instructions of the 5udge in order to reach averdict based upon their own conscious.

Power vs. Right

• 1uries don7t have the >3?'T to nullification because they don7t have the right to ignore or depict the law, but ultimately, they have the P@-> to resist government and the law if

they feel it necessary.

State . Ra/%an- Ragland was charged with armed robbery and possession of a weapon by a

convicted felon. At the end of the trial, the judge instructed the jury that it “ must” find Ragland

guilty of the offense if the jury found Ragland was carrying a weapon at the time of the robbery.

He argued that jury’s should be informed of nullification powers & that “must” was inconsistent

with that power.

o Issue: 3s 5ury nullification an essential attribute of a criminal defendantBs right to trial by

5ury< No.o Ru%e: The power of a 5ury to nullify the law is not essential to a criminal defendantBs right to

trial by 5ury.

2. What did the drafters of the Constitution say about Jury Nullification?

o They wanted them to have the power to do so in the end, so there wasn7t issue

over right vs. power or too much governmental power. They wanted them to be

protected from ?@->NM-NTA @PP>-!!3@N.

CHAPTER TWO- PRINCIPLES O2 PUNISHMENT

'. The Penal Theories in Action• . Ho& "uc$ 3an W$at4 Pun!s$"ent s$ou% )e I"0ose5

o People v. !uperior CT 80u9 Du was working at her liquor store, which had been

known for recent violence and attacks on their son by gang members. Latasha put

a juice in her bag so Du was pulling on her sweater to try and get it, and Latasha

smacked her twice. Du then threw a stool at her, and when she missed, she shot

and killed her. The gun had been altered prior to the killing w/o Du knowing.

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Issue: hether the sentence for the commission of a crime with a deadly

weapon should be reduced to probation. Ru%!n/: A prison sentence for a crime involving a deadly weapon should

not be reduced to probation ecept in unusual cases where the interests of

5ustice would best be served

Ho%!n/: !ince the gun was altered, 0u has no record and isnBt a threat to

harm others in the future, she was only there because her son had been

attac6ed and he wanted to be off, and because she was believed to do this

because of the prior circumstances, she got probation.

o T$e 6u/e "ust !nc%ue t$ese t$!n/s &$en ec!!n/ sentenc!n/; The protection of society,

the need to punish the defendant, and the need to deter further crime, among other ob5ectives.

C. Proportionality of Punishment

• . Const!tut!ona% Pr!nc!0%es

o -wing v. California Ewing was arrested for stealing golf clubs worth $1,200.Ewing had prior convictions, including three burglaries and a robbery. He was

charged with felony grand theft, and the prosecutor invoked the three strikes law.

Certiorari was granted to see if this sentence violated the Eighth Amendment.

California’s “Three Strikes and You’re Out Law,”- defendants with more

than two violent or serious felonies are sentenced to “an indeterminate

term of life imprisonment.

Issue: 0oes sentencing a repeat felon to %( years imprisonment under a

stateBs three stri6es law violate the -ighth Amendment prohibition of crueland unusual punishment<

Rule: !entencing a repeat felon to %( years imprisonment under a stateBsthree stri6es law does NOT violate the -ighth Amendment prohibition ofcruel and unusual punishment.

• Holding: They said that there were D things used to determine if a sentence is

disproportionate enough to violate the # th.o .9 the gravity of the offense and the harshness of the penalty.

o %.9 the sentences imposed on other criminals in same 5urisdiction

o D.9 the sentences imposed for commission of same crime in other 5urisdictions.

• Eighth Amendment: This amendment prohibits cruel and unusual punishments,

(prohibits sentences that are disproportionate to the crime) and also mentions “excessive

fines” and bail.o Gra!t* o# an o##ense not on%* ea%s &!t$ t$e current cr!"e at $an, )ut $o& !t

$as )een ea%t &!t$ !n t$e 0ast !n t$e sa"e an !n !##erent 6ur!s!ct!ons.

C$a0ter T$ree- Moern Ro%e o# Cr!"!na% StatutesA. Principle of egality

. T$e Re7u!re"ent o# Pre!ous%* De#!ne Conuct

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o 8ee%er . Su0er!or CT- Shortly after obtaining a divorce from his wife, Keeler

intercepted her on a mountain road, observed that she was visibly pregnant by

another man, and shoved his knee into her abdomen and struck her. Thereafter,

the viable fetus was delivered stillborn, its head fractured. Keeler was charged

with murder.

o Issue: 3s a viable fetus a Ehuman beingF under the law to which one may becharged with murder<

o Ru%e: EProof the child was born alive is necessary to support an indictment for

murder.F 8'orn-A%!e Ru%e4o Ho%!n/: !ince the statute in Penal code #$ doesnBt deem the fetus as a EhumanF

he canBt be charged with murder. 8/nlawful 6illing of a human being.

• PRINCIPLE O2 LEGALIT1 3COMMON LAW4; A person may not be convicted and

punished unless the conduct was defined by criminal statute when committed.o T$ree Interre%ate Pr!nc!0%es 3D.U.I.4

. !tatutes should be understandable in order to provide fair notice of proscribed conduct. 8(th and +th Amendment9.

. !tatute should be crafted so they do not provide police, prosecutors,

5udges, and 5uries opportunity to act in a discriminatory or arbitrary

manner. 9. 1udicial 3nterpretation of ambiguous statutes must be construed in favor

of defendant. (Lenity Doctrine).

- Post 4acto aw; aws adopted after an act is committed ma6ing it illegal although it

was legal when done, or increases the penalty for a crime after it is committed.

Ho& to D!st!n/u!s$ )et&een a Due Process an Ex Post Facto c%ause !o%at!on5

o Due Process !o%at!on +u!c!a% act 80uG1u9o E( Post 2acto !o%at!on Le/!s%ature act

• The 4irst essential of due process is fair warning of the act, which is made punishable as

a crime.

• HHhen a new penal statute is applied retroactively to ma6e punishable an act, which

was not criminal at the time it was performed, the defendant has been given no advance

noticed consistent with due process.

. T$e a%ues o# Statutor* C%ar!t*o C!t* o# C$!ca/o . Mora%es- - In 1992, the Chicago City Council enacted the

Gang Congregation Ordinance, which prohibited “criminal street gang members”from “loitering” with one another in any public place. Morales was accused of

violating the law, but the trial court that held the law to be unconstitutionally

vague dismissed the charges.

o Issue: 0oes this ordinance violate the 0ue Process Clause of the + th amendment

if it is so vague that it fails to provide sufficient notice to citi*ens regarding thetype of conduct prohibited and fails to provide ade:uate guidelines for lawenforcement officers< 1ES. 3Ru%e state4

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A %a& "a* )e unconst!tut!ona%%* a/ue #or t&o reasons.

o 2!rst, it may fail to provide the 6ind of notice that will allow an ordinary person

to understand what conduct is prohibited.

o Secon, it may authori*e arbitrary enforcement. A law fails to meet the 0ueProcess re:uirements of the 4ourteenth Amendment if it is so vague that it leaves

the public uncertain as to the conduct it prohibits.o Ho& ! t$e or!nance )esto& 0o%!ce &!t$ aut$or!t* to act ar)!trar!%* or !n a

!scr!"!nator* "anner5

• The ordinance is too vague, so they are accusing and participating in innocent

conduct, because they over accuse due to the vagueness and uncertainty of law

enforcement.

'. Statutor* Inter0retat!on

• Muscare%%o . U.S- Congress enacted a federal law criminalizing the conduct of one who“uses or carries a firearm” while trafficking drugs. Muscarello (D) was convicted of

carrying a firearm in the locked glove compartment of his vehicle while involved in a

drug trafficking crime. He argued it only applied to carrying it ON you, NOT in the car.

o Issue: 3s the statutory phrase Ecarries a firearmF necessarily limited to the

possession a firearm on the defendantBs person and not also applicable to possession of a firearm in a vehicle< NO.

o Ru%e: hen interpreting a statutory term, courts should assume the primary

meaning of the phrase governs /N-!! the legislature indicates otherwise.o Ho%!n/: No. Courts must interpret ambiguous statutory terms according to

legislative intent. 3n doing so, courts may consider the ordinary definition of theterm, any special definitions, the purpose of the statute, and the legislative history.Congress intended for the provision to apply to Ethe carrying of firearms in avehicle to a drug traffic6ing crime,F as Muscarello did. 'eBs guilty.

W$at $a00ens &$en t$ere are "u%t!0%e "ean!n/s to a &or, E(: ;Carr!es<

o After construing congressional intent, and evaluating all meanings of the word, if

unsure, they will rule in favor of the De#enant.

HYPOTHETICAL: A state forbids all “raunchy bumper stickers” on cars driven in public.

Bobby is arrested for violating the statute when he is caught driving down a public highway with

a bumper sticker that depicts a nude man and woman. Should he be convicted under the statute?Why?

• No, because EraunchyF is too vague. !ome people gravitate to the assumption that

those images are raunchy, but the response to that is that Ethere are many things that

we as a society engage in, that can be considered raunchy to some, but not others.F

!tatute would have to be defined, and specific conduct was banned, would be the only

way to move forward with this conviction.

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CHAPTER 2OUR- ACTUS REUS

A. Voluntary Act

D. Mart!n . State Martin was arrested at his home by police officers and placed in a police

vehicle where he was separately charged for being drunk and using loud and profane language ona public highway. He was convicted under a state statute which held that “any person who, whileintoxicated or drunk, appeared in “any public place where one or more persons are present, and

manifests a drunken condition by… or loud and profane discourse, shall, on conviction, be

fined.”

o Issue: Can criminal liability be imposed only when the unlawful conduct is

committed voluntarily< 1ES.o Ru%e: Criminal liability may @N= be imposed when the unlawful conduct is

committed voluntarily.o Ho%!n/: Yes. Under the plain language of the statute, one convicted of being

drunk in a public place must have voluntarily placed himself there. If the accused

is taken involuntarily and forcibly carried to a public place by an arresting officer,a charge of being drunk in a public place cannot stand. (Conviction Reversed)

• State . Utter Iilled his son after heavy drin6ing. 2lamed it on E3rresistible 3mpulseF

o Issue: !hould 5uries in a murder trial consider evidence on the defense of

conditioned response that tends to demonstrate whether the defendant committedthe re:uisite Actus >eus< 1ES.

o Ru%e: !ubstantial evidence on the defense of conditioned response tending to

demonstrate whether the defendant committed the re:uisite Actus >eus should be presented to the 5ury in a murder trial.

o

Ho%!n/: =es. To find a defendant guilty of murder, a 5ury must find both there:uisite Actus >eus 3 physical9 and Mens >ea 3mental9. 2ut Actus >eus also hasa mental component in that the murder defendant must have voluntarily willed theact to occur. 2or t$!s reason, an !no%untar* "usc%e s0as" t$at resu%ts !n t$eeat$ o# anot$er 0erson &ou% not 7ua%!#* as t$e Actus Reus #or "urer. T$e

act "ust )e co""!tte o%untar!%* an consc!ous%*.

=. T$ere are T&o Co"0onents o# Eer* Cr!"e

o @b5ective; Actus Reus The Physical and oluntary act of the crime

A. 'owever, thereBs a minimal mental element re:uired in order to establish

the Actus >eus itself. T$e e%e"ent o# o%!t!on 3voluntary action9.

o !ub5ective; Mens Rea The Mental J criminal intentK6nowledge to commit act.

H1POTHETICAL: @fficer 2lue and the 6illing of two innocent ulcan teens.

• -ven in the Actus >eus is satisfied, the nature of this 6illing and the reasonableness of his

responses, is a 5ury :uestion.

Act!on: Actually doing something

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O"!ss!on; 4ailing to actKdo something when you had a dutyKobligation to do so.

' . @missions 8ENegative ActsF9

. D!st!n/u!s$!n/ Acts 2ro" O"!ss!ons

'ar)er . Su0er!or Ct- Dr. ! a sur/er*. Pt. /ot &orse. Dr. 0u%%e 0%u/ &>consent.o Issue: 3s a physician under a legal duty to continue futile lifesustaining support

absent ob5ection from a spouse and does the withdrawal of such lifesustainingsupport with the consent of a spouse support a charge of murder< No. 3Ru%e ?4

o Ho%!n/: No, There is no criminal liability for failure to act unless there is a legal

to duty to do so. 'ere, 0 had no legal duty to continue to provide treatment to Ponce it was proved to be ineffective or futile in the opinion of :ualified physicians. 0Bs omission to continue lifesustaining treatment to P under thecircumstances, though intentional and with 6nowledge that he would die wasnBtan unlawful failure to perform a legal duty.

• T$ere !s no cr!"!na% %!a)!%!t* #or #a!%ure to act un%ess t$ere !s a %e/a% ut* to act.o Dut!es ar!se !n cases !no%!n/:

89 !tatus >elationship

8%9 Contractual obligation

8D9 @missions following an act and

8+9 !tatute.

C$a0ter 2!e- Mens Rea

'. ?eneral 3ssues in Preventing Culpability

• . Intent

o People v. Conley 0 tried to hit one 6id, but hit another J severely in5ured him.

Issue: May a court infer the intent to commit a crime based on

surrounding circumstances< 1es. Ru%e: Criminal intent may be inferred from the circumstances surrounding

a crime. Ho%!n/: 1es, The relevant statute re:uires that a person intentionally or

6nowingly inflict permanent disability or disfigurement. After defining3ntent and Inowledge below, this statute re:uires that someone act withthe intent to inflict the re:uisite harm or be almost certain that the re:uisiteharm will occur.

•

Intent hen one intentionally acts to accomplish a certain outcome or conduct. Although proving intent may be hard, the law presumes that one intends

the natural and probable conse:uences of their actions, and they Must

have the Mens Rea to intend the alleged crime.o 3ntent to harm can thus be inferred from the circumstances surrounding a personBs

actions, such as the words spo6en or weapons used.

• 8no&%e/e- 2eing almost certain that something will occur as a result of an action.

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• Doctr!ne o# Trans#erre Intent; Transferred intent is a doctrine that allows the

defendant to be held liable for an intentional tort he intended to commit against A but,

instead, accidentally committed against 2.

9. 8no&%e/e o# Attenant C!rcu"stances 3W!%%#u% '%!nness Test4

• !tate v. Nations /nderage girl found dancing at a club for tips J owner didnBt 6now.

o Issue: hen a statute re:uires 6nowledge of a fact, as an element of a crime, is it

sufficient to prove the defendant was aware of the high probability of that factBseistence< NO.

o Ru%e: here a statute re:uires 6nowledge of a fact as an element of a crime, it is

insufficient to prove the defendant was aware of the high probability of that factBseistence, unless the statute provides otherwise.

o Ho%!n/; The term E6nowledge,F unless otherwise defined by statute, means

actual 6nowledge. hen a criminal statute re:uires 6nowledge of a fact as anelement of a crime, the defendant must have had actual awareness of the fact tosatisfy that element.

o

KNOWINGLY is defined as actual 6nowledge in our Criminal Code. This definition E(c%ues those cases in which Ethe fact would have been

6nown, had not the person willfully shut his eyesB to avoid 6nowing.

• T$e Doctr!ne o# ;W!%%#u% '%!nnessea.

Pu)%!c 0o%!c* !s#aors cr!"!na% statutes &!t$ no "ens rea

re7u!re"ent

• !trict iability The legal responsibility for damages, or in5ury, even if the person found

strictly liable was not at fault or negligent.

W$at !s t$e Presu"0t!on A/a!nst Str!ct L!a)!%!t*5

o @ffenses that do not contain a mens rea re:uirement have a generally disfavored

status.

H1POTHESIS- Sneaky Max Hypo:

• !trict liability !tatute

• A!T 2/-TP@3NT @N A!T !30- 4>@M !TAP-! . /N3T-0 !TAT-!

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HYPOTHESIS- My Husband is Dead. (Old Test Question)

• /nder definition of intent, she is guilty of 6illing her husband and the other patrons.• @h >oger 'ypo; @0 T-!T O/-!T3@N

o !pecific intent

o Not guilty of arceny, because he said he was intending to 2@>>@ J return

the clothes before his neighbor got home.

D. M!sta@e an Mens Rea

. M!sta@e o# 2act

o People v. Navarro !tole wood beams with good faith that they were abandoned.

Issue: 3s a mista6e of fact a defense to a specific intent crime even if the

mista6e was unreasonable< 1es. Ru%e: An honest mista6e of fact is a defense to a specific intent crime

regardless of whether the mista6e was unreasonable.o 3f, due to oneBs Honest M!sta@e of fact, a person is incapable of possessing a

specified mental intent, that person Cannot be guilty of that crime. This is the caseeven if the defendantBs mista6e of fact is unreasonable, as long as the defendant issincere in his mista6e.

S0ec!#!c !ntent cr!"es A crime where the individual must not only intend to perform the

criminali*ed act, but also must intend the specific conse:uences of that act. 3Re7u!re a

0erson to 0ossess a 0art!cu%ar!e "enta% !ntent4

o 0 is not guilty of an offense if a mista6e of fact negates the specificintent portion

of the crime, even if mista6e is unreasonable.

Genera% !ntent cr!"es- A crime for which the prosecution must prove only that the

defendant intended to commit the act, not brea6 the law. 3W$ere a s0ec!#!c "enta%

!ntent !s unnecessar*.4

0 is not guilty of the offense provided, the mista6e of fact is reasonable.

o A ?ood faith belief that is reasonable is not a defense in ?eneral 3ntent crimes.

. M!sta@e 3or I/norance4 o# La& Peo0%e . Marrero May one who violate a statute raise a good faith mista6en belief as to themeaning of the law as a defense< NO. 3Ne/ate Issue B Ru%e4

• Mista6eK3gnorance of law

o C Maim 3gnorance of the law is no ecuse.

W$at !s t$e !##erence )et&een a "!sta@e o# %a& an a "!sta@e o# #act5


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o Mista6e of aw A misconception that occurs when a person with complete

6nowledge of the facts reaches an erroneous conclusion as to their legal effectQ an

incorrect opinion or inference, arising from a flawed evaluation of the facts.o Mista6e of 4act An error that is not caused by the neglect of a legal duty on the

part of the person committing the error but rather consists of an unconscious

ignorance of a past or present material event or circumstance or a belief in the

present eistence of a material event that does not eist or a belief in the past

eistence of a material event that did not eist 3n Criminal law, a M!sta@e o# 2act can usually operate as a defense so

long as it is reasonable. ith crimes that re:uire specific intent, even an

unreasonable mista6e of fact might wor6 as a defense.

W$at C!rcu"stances can a De#enant C%a!" M!sta@e o# La&5

o Mista6e founded on official statement of law in statute.

o @fficially madeKissued by public servantKagencyKbody legally charged with

administeringKenforcing it.

C$ee@s . U.S- Part of an AntiTa advocacy group J charged wK not filing a 4ed. Ta >eturn.

• Issue: Must a purportedly goodfaith misunderstanding of the law be ob5ectively

reasonable to negate the specific intent re:uirement of willfulness under criminal talaws< No.

o Ru%e: hether a purportedly goodfaith misunderstanding of the law will negate

the specific intent re:uirement of willfulness under criminal ta laws is a :uestionof fact for the 5uryQ there is no legal re:uirement that the belief be ob5ectivelyreasonable.

Ho& oes t$e ter" &!%%#u%%* eter"!ne t$e outco"e o# t$e cr!"e5

o Inowledge of the law is an element of the crime. Mens >ea. E3 intend to do

something but 3 did not willfully violate the law.F

• W$at "!sta@e ! t$e tr!a% court "a@e<

o Not giving the instruction on the willfulness 6nowledgeKdefense to the 5ury.

CHAPTER SI- CAUSATIONA. Actua% Cause 3Cause !n 2act4

ela*:ue* v. !tate- Two dragracers, bra6es didnBt wor6 in time and P went over the cliff

o Issue: 3s a defendantBs conduct the proimate cause of a prohibited result where

the result is beyond the scope of the defendantBs conduct or it would otherwise beun5ust to impose criminal liability< NO.

o Ru%e: -ven where a defendantBs conduct is a causeinfact of a prohibited result, it

is not the proimate cause if the prohibited result is beyond the scope of thedefendantBs conduct, or it would be un5ust to impose criminal liability.

2or a cr!"e, *ou nee Actua% cause an Pro(!"ate cause.

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1ou cant )e t$e 0ro(!"ate 3%e/a%4 cause &!t$out )e!n/ t$e actua% cause 'UT &e

can )e t$e actua% cause &!t$out )e!n/ t$e 0ro(!"ate 3%e/a%4 cause.

• Actua% Cause 3Cause !n #act4- Actual cause refers to a cause or factor without which the

event could not have occurred. 3t is also termed as Ebut forF cause or cause in fact or

factual cause. The butfor test is often used to determine actual causation

D!st!n/u!s$ )et&een: A00%!cat!on o# t$e ;'ut 2or< Test F ;Su)stant!a% 2actor test<

o 'ut 2or Test- 0efendants conduct is a causeinfact of a particular result if the

result would not have happened in the absence of 0B conduct.o Su)stant!a% 2actor Test- 0efendants conduct is the cause in fact of a prohibited

result if the sub5ect conduct was a substantial factor in bringing about the harmful

or deadly result. The substantial factor test is important in in5ury cases. 4or eample, if a

plaintiff wor6s in a factory and develops cancer, he might allege that thecancer resulted from asbestos poisoning. The defendant factory owner will

li6ely :uestion whether the factory7s asbestos was a substantial factor in

causing the cancer or whether other factors played a far more significant

role.

• 4or good reason, many courts have declined to impose criminal liabilityR

o here the prohibited result of the defendantBs conduct is beyond the scope of any

fair assessment of the danger created by the defendantBs conduct, or o here it would otherwise be un5ust, based on fairness and policy considerations,

to hold the defendant criminally responsible for prohibited result.

'. Proimate Cause 8egal Cause9

People v. >ideout- Car accident. All were safe. P went to turn on lights. ?ot hit by a car.

o Issue: Can a defendantBs conduct be the proimate cause of a victimBs in5ury

when there is another intervening cause<o Ru%e: A defendantBs conduct is the proimate cause of a victimBs in5ury if it is a

direct and natural result of the defendantBs actions.

• A person or event cannot be the proimate cause of harm unless she or it is an actual

cause, but a personKevent can be actual cause wKout being proimate cause.

• Pro(!"ate 3Le/a%4 Causat!on- an act from which an in5ury results as a natural, direct,

uninterrupted conse:uence and without that act, the in5ury would not have occurred.o Pro(!"ate cause !s t$e 0r!"ar* cause o# an !n6ur*.

o 0Bs conduct must be the Edirect and natural resultF of Bs in5ury< To determine;

. as there an intervening cause that superseded 0Bs conduct, such that

is severed the casual lin6 between 0Bs act J Bs harm< I# no, Pro(!"ate.


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An intervening cause severs the casual lin6 when it is not reasonably

foreseeable under an ob5ective standard. H?ross negligence and

intentional misconduct are not reasonably foreseeable.F

Ne/%!/ence !s #oreseea)%e at a $os0!ta% )ut GROSS ne/. !s not.

• Actua% 32actua%4 Causat!on- is EbutforF the action committed the outcome would not

have naturally occurred. 8if you hadn7t 6noc6ed over the candle there would have been no

fire9o 4actual causation determines eactly what happened and whether someone was

responsible for the event or whether it would have occurred anyway.

• Actua% Cause G 4acts of the crime.

• Pro(!"ate CauseB egal aspect of the crime.

o Cant $ae a legal 8proimate9 cause without the facts 8actual cause9, 'UT, you

Can $ae actual cause 8facts of case9 without any legal 8proimate9 liability.

• A00arent Sa#et* Doctr!ne- Ehen a defendants active force has come to rest in a

position of apparent safety, the court will follow it no longer.F• >esponsive 3ntervening Cause 'arm results from actions ta6en in response to 0Bs

conduct 8-; !urgery or Medical attention9 ill establish proimate cause

• Coincidental 3ntervening Cause- onBt establish proimate cause unless it was

foreseeable.

• !uperseding 3ntervening Cause 0oes not need to be the only cause.

HYPOTHETICAL- Mike and Aaron Punch/Bank Robbery

o ho is the proimate cause of AaronBs death< 'an@ Ro))er. 8Answer on Twen9

HYPOTHETICAL - Ralpho 'e was not the Ebut forF factor and you should apply the Su)stant!a% 2actor

Test.

HYPOTHETICAL- Elevator

o !uri is the 4actual cause but not the legal cause.

HYPOTHETICAL- April

o ho was the actual cause of AprilBs death< Ma//!e

o ho was the proimate cause of AprilBs death< Ma//!e

o >esponsive or Coincidental cause< Res0ons!e

CHAPTER SEEN- CRIMINAL HOMICIDEA. Oer!e&

=. T$e Protecte Interest: ;Hu"an 'e!n/<

Peo0%e . Eu%o

o Issue: 3n homicide proceedings, may courts determine when death occurs using

brainbased criteria rather than the traditional cardiorespiratory criteria< 1es.

%


13/45

o Ru%e: 3n homicide proceedings, courts may use brainbased criteria in addition to

traditional cardiorespiratory criteria as a means of determining when death occurs.

Practice Exam Questions

Question 1:• Must mention that this was a specific intent crime. 83ssue9

• hether or not he had a good faith belief, not that his beliefs were unreasonable.

o ?ood 4aith if something ma6es no sense, but you truly believed you werenBt

committing a crimeo /nreasonableness youBre 5ust an unreasonable person which leads to an

unreasonable mindset.

• T$!s case !s a%% a)out eta!%. Noticing something that will completely switch up outcome.

o A si year old has no criminal responsibility in the /nited !tates. That fact must

be ta6en under consideration and touched on as a potential issue.

Question 2:

• 'e would be found guilty.

• Mens >ea does not matter, even though he didnBt mean to drin6 the alcohol.

• -ssentially, he had the Malition to move his body, and he did so by driving.

'. Intent!ona% 8!%%!n/s

• . De/rees o# Murer: T$e De%!)erat!on-Pre"e!tat!on 2or"u%a

o State . Gut$r!e- D!s$&as$er sna00e on !nst!/ator an @!%%e $!" on !"0u%se.

Issue: To constitute firstdegree murder, must the defendant have hadsome period of time between the development of the intent to 6ill and theactual 6illing to indicate that the act was premeditated and deliberate andnot impulsive< 1es, R -t$ere "ust )e so"e o00ortun!t* #or re#%ect!on ont$e !ntent!on to @!%% a#ter t$e !ntent !s #or"e )* t$e accuse. 84ailed toinform 5ury of difference between st and %nd degree murder9

Murer The 6illing of a human being by another human being with malice aforethought

Ma%!ce A#oret$ou/$t- A predetermination, or intent, at the time of a 6illing to willfully

ta6e the life of a human being or an intent to willfully act in callous and wanton disregardof the conse:uences to human life.

•

Malice includes these D elements;o . 3ntent to 6ill

o %. 3ntent to inflict grievous bodily in5ury

o D. -treme rec6lessness 8deprave heart9Q J intent to commit felony where death

results.

• 2!rst De/ree Murer 8Prior Consideration9 3ntentional and unlawful 6illing of a human

being with "a%!ce, 0re"e!tat!on an e%!)erat!on. An elaborate plan or scheme is not

D


14/45

needed, only that there is evidence that the defendant considered and weighed his

decision to 6ill.

• Secon De/ree Murer 8!pur of the Moment9 hich may only re:uire the !ntent to

6ill. Any other spontaneous, but intentional, 6illing is seconddegree murder.

• D!##erence )et&een st an n e/ree "urer5

st 0egree EPrior ConsiderationF even smallest amt. of time is too much %nd 0egree- E!pur of the MomentF there was no though put into it.

• Doctr!ne o# Lesser !nc%ue O##enses 0 can be found guilty of an offense EincludedF

within the offense charged, as long as fact finder can reasonably conclude such from the

evidence introduced at trial 8%nd degree murder rather than st degree murder9

I"0u%se . Care#u% re#%ect!on

3mpulse

Careful >eflection

State . 2orest-o Issue: 0oes a conviction for murder in the first degree re:uire substantial

evidence of premeditation and deliberation<o Ru%e: A conviction for murder in the first degree re:uires substantial evidence of

premeditation and deliberation, which may be proven through circumstantialevidence.

• There can be intent, even if your motives are honorable and 5ustifiable.

• C!rcu"stant!a% E!ence -vidence not based on personal observation or 6nowledge.

T$ere are 2actors to Deter"!ne &$et$er a 8!%%!n/ &as Pre"e!tate an De%!)erate.

o 89 A lac6 of provocation from the victimQ

o 8%9 The actions and words of the defendant before and after the 6illingQ

o 8D9 Any threats on the part of the defendant before or during the 6illingQ

o 8+9 hether the victim and the defendant had a poor historyQo 8(9 hether there was an additional lethal attac6 after the victim was already

helplessQ ando 8L9 -vidence of brutality

H1POTHETICAL: T$e M!sse S$ot

o Murder is the 6illing of a human by a human, and Momo 6illed a dog.

o 'owever, if an animal 6ills a human, the owner could be prosecuted for murder.

'. Intent!ona% 8!%%!n/s

. Mans%au/$ter: ;Heat o# Pass!on< 8!%%!n/s

A. Co""on La& Pr!nc!0%es

Unerstan t$e D!st!nct!on )et&een Murer an Mans%au/$ter

o Murer- The unlawful 6illing of a human being with malice aforethought.

o Mans%au/$ter The un5ustifiable J intentional 6illing of a human being &!t$out

deliberation, premeditation, and malice.

+


15/45

o o%untar* Mans%au/$ter- An intentional homicide, done in a Esudden heat of

passionF, caused by ade:uate provocation.

G!rouar . State-

o Issue: 3s a verbal domestic argument ending with the death of one spouse

ade:uate provocation to mitigate murder to manslaughter


16/45

• Issue: 3s a death resulting from the commission of a dangerous felony considered to be

murder< 1ES.

• Ru%e: /nder the felonymurder rule, a death resulting from the commission of a

dangerous felony is murder.o An accidental death can still be charged as a felony murder.

• Ho%!n/: =es. /nder the felonymurder rule, if a 6illing results from the perpetration orattempted perpetration of certain felonies enumerated by statute, the perpetrator is guiltyof first degree murder, even if the 6illing is negligent or accidental. 3n California, suchfelonies include arson, rape, robbery, burglary, mayhem, and lewd acts with a minor.8California Penal Code Sec. !" ).

Can a cofelon be convicted for the unintentional act of 6illing by the other cofelon<

o =es, they can.

3s there a re:uirement that the felony be dangerous to human life<

o No, there is not.

3s it necessary to prove malice<

o

No, itBs not.II. T$e ;In$erent%* Dan/erous 2e%on*: L!"!tat!on

Peo0%e . Ho&ar

o Issue: 3s a felony inherently dangerous even if it can be committed without

creating a substantial ris6 of death to another< No, )ecause o# ne& %e/!s%at!on.o Ho%!n/: No. 3n California, a 6illing resulting from the commission of an

inherently dangerous felony is at minimum a second degree murder. @nlyfelonies that create a substantial ris6 of death to another can serve as the basis of afelonymurder charge. The elements of the felony must be inherently dangerous inthe abstract.

• Murder is the unlawful 6illing of a human being with malice aforethought.

o HH2ut under the seconddegree felonymurder rule, the prosecution can obtain aconviction without showing malice if the 6illing occurred during the commission

of an inherently dangerous felony.HH

Unerstan t$e In$erent%* Dan/erous 2e%on* L!"!tat!on . 2e%on* Murer Ru%e.

W$en !s a #e%on* !n$erent%* an/erous5

• Prosecution can obtain a conviction for %nd degree felony murder if 6illing occurred

during commission of an E3nherently dangerousF felony.o Court a00%!es t&o tests:

In t$e A)stract Test# elements without consideration of applicable facts

• Conviction of a felony murder is very unli6ely under this test.

2acts o# t$e Case Test Manner and circumstances in which it was

actually committed.o Court reasons, that if there is any way the felony can be committed without

creating a substantial ris6 of death to someone, it is not Inherently Dangerous.

'A'1 SARAH H1POTHETICAL- 3A'STRACT TEST APPLIES4

L


17/45

• A)stract Test- Not necessarily guilty because anyone under the age of # is included.

ithout the facts, we could assume the child was a $ year old, home alone after school, and

snuc6 one of 0adBs beers while ma6ing inappropriate gestures at the neighbors. This

wouldnBt lead us to believe itBs a felony.

2acts Test- @nce we apply the facts, we see that it was a helpless child in this case and that it

should in fact be a felony.

A 2AILED HEART H1POTHETICAL- 32ACTS TEST APPLIES4

• 84elony murder rule will apply to attempted felonies as well9

• Margaret is guilty because the doctrine declares that one is guilty of murder if a death

results from conduct during the commission or attempted commission of any felony.

Ro))er* !s cons!ere a #e%on*, an s$e &as atte"0t!n/ to co""!t t$e ro))er* &$en

t$e 0%a!nt!## $a a $eart attac@ an !e. Mar/aret &ou% )e con!cte.

III. T$e ;Ine0enent 2e%on*< 3Mer/er L!"!tat!on4

Peo0%e . S"!t$: 2eat her daughter until she went into Card. Arrest and died. !mith Chargedwith %nd deg. Murder based on a theory of felonymurder.

Issue: Can a felony that is assaultive in nature serve as the basis of a felonymurder

charge< No, )ecause t$e assau%t!e #e%on* !s sa! to "er/e &!t$ t$e "urer. !mithBsabuse of her daughter merges with the resulting homicide so that !mith cannot becharged with felonymurder. The 5ury must instead determine whether !mith possessedthe re:uisite malice for a conviction of murder. 8C$!% a)use !s assau%t!e !n nature an$as no ot$er !ne0enent #e%on!ous 0ur0ose9

. The 1ury was instructed that they could find the defendant guilty of seconddegreefelony murder if it determined that the homicide occurred during the commission of

the underlying felony of assault with a deadly weapon.

• Ru%e: A felony that is assaultive in nature cannot serve as the basis of a felonymurder

charge unless the felony was committed with an independent felonious purpose.

Mer/er Doctr!ne- 4elony Murder only applies if the predicate felony is independent of orcollateral to, the homicide. 3f the felony is not the independent cause, then the felony is said toEmergeF with the homicide and cannot serve as the basis for a felonymurder conviction.0efendant may only be charged with the higher offense.

. I2L typically applicable to Assaultive felonies 8threat of immediate bodily in5ury9

• 2u%%* unerstan t$e Ine0enent 2e%on* L!"!tat!on.

PETE H1POTHETICAL

CanBt be charged with the 4elony Murder >ule because the Eheat of the passionF merges

with the homicide or manslaughter charge. There was no malice for the prosecutor to

prove in this case which means that since no murder resulted from the commission of a

felony, therefore ma6ing it impossible to convict under this rule.

$


18/45

ER1 IMPORTANT CASE>IN2ORMATION

I. 8!%%!n/s ;!n t$e Per0etrat!on< or !n ;2urt$erance< o# a 2e%on*

State . So0$o0$one

Issue: 3s the felonymurder rule applicable when a nonfelon performs the 6illinglawfully< NO. 3Its not a00%!ca)%e4

Ho%!n/: No. The felonymurder rule is not applicable where a nonfelon is responsible

for the resulting death. ': A/enc* A00roac$J. /nder this approach, the act of 6illing isimputed to the defendant when committed by an accomplice.

CLASS NOTES

• 4ully understand the $e% Ge%tae 0octrine 8begins when the actor has reached a point

where prosecution for attempt is appropriate9, A! - A!;

T$e Agency A00roac$

o 4elony0octrine doesnBt apply if person who caused death is a nonfelon 8The co

felon is not an accomplice of the 6iller9. 3Ma6or!t* Ru%e4

T$e Pro(!"ate Causat!on A00roac$

o 4elon would be responsible for 6illing by nonfelon if felon set in motion the acts,

which resulted in victimBs death.

T$e A00%!ca)%e Pro!s!ons o# 8.S.A. -9=9 state:

o Murder in the first degree is the 6illing of a human being committed

8b9 in the commission of, attempt to commit or flight from an inherently

dangerous felony as defined in I.!.A. %D+DL and amendments thereto.

• Aggravated burglary is one of the inherently dangerous felonies as

enumerated by I.!.A. %D+DL8&9.• 0efendant doesnBt argue that aggravated burglary is an inherently dangerous felony. 'is

principal argument is that he was in custody at the time his cofelon was 6illed.o 'e argues that this was a Ebrea6 in circumstanceF sufficient to relieve him from

further criminal liability.

T$!s ;Interen!n/ Cause< ar/u"ent $as no "er!t uner t$e #acts o# t$!s case.

o 3n many similar cases, it has been held that Etime, distance, and the casual

relationship between an underlying felony and a 6illing are factors to beconsidered in determining whether the 6illing occurs in the commission of theunderlying felony and the defendant is therefore sub5ect to the felonymurder rule

T&o A00roac$es to ec!e &$et$er to a00%* t$e 2e%on*-Murer Ru%e:

T$e KA/enc* A00roac$

o The ma5ority opinion is that the felonymurder doctrine doesnBt apply if the

person who directly causes the death is a nonfelon.

T$e KPro(!"ate Causat!on A00roac$

#


19/45

o An alternative theory holds that a felon may be responsible under the felony

murder rule for a 6illing committed by a nonfelon if the felon set in motion theacts, which resulted in the victimBs death.

Pursuant to t$!s ru%e, t$e !ssue )eco"es one o# 0ro(!"ate cause:

3f an act by one felon is the proimate cause of the homicidal

conduct by the nonfelon or police officer, murder liability is permitted.

H1POTHETICAL- 2RAN8 AND +AMESo 4ran6 wouldnBt be found guilty under the 4elonymurder rule under the Agency

Approach. 'e was a nonfelon and engaged in an attempt at selfdefense.

H1POTHETICAL- SIMIo !imi was unaware that the robbery was even happening, so it had no causal

connection with his death. T$ere "ust )e a casua% re%at!ons$!0 )et&een t$e

#e%on* an t$e @!%%!n/.o One ar/u"ent t$at esta)%!s$es causat!on 3f you can prove that his death had

nothing to do with the robbery, but had it not been for the robbery, people would

have normally been around !imi when he had the heart attac6, and possibly

couldBve prevented it. there is a causal connection and the outcome could change.

H1POTHETICAL- OH NO POLICE O22ICER 2ELL INTO AN AIRSHA2To ProsecutionK@fficer would prevail on applying the felony murder rule because

had the officer not been in a lawful pursuit of the defendant, he would not have

been chasing him on the roof or fallen into an airshaft and died. Momo is not the

proimate or actual cause of the officerBs death, but there was still a causalconnection. MomoBs negligence of his death. Momo would lose. 8There was a

death but no 6illing.9

E. Capital Murder . T$e uest #or Re%!a)%e Proceures'. ictim 3mpact -vidence

Pa*ne . Tennessee

o Issue: May 5uries hear victim impact evid. at a capital sentencing hearing


20/45

o Ru%e: 3t is constitutionally permissible to sentence a defendant convicted of

felonymurder to death even if the defendant neither intended to 6ill the victimnor actually inflicted the fatal in5ury if the defendant was a ma5or participant inthe felony and possessed a rec6less indifference to human life.

CHAPTER EIGHT- RAPE'. 4orcible >ape. 3n ?eneral

State . A%ston

o Issue: 3n order to prove rape, is it sufficient to show that seual intercourse was

obtained without the consent of the victim< NO.o Ru%e: 3n order to prove rape, there must be sufficient evidence that seual

intercourse was obtained against the victimBs will and by force.

Ho%!n/: No. !econddegree rape re:uires that the defendant obtain seual intercourse

both by force and without the victimBs consent. 4orce is demonstrated by actual force or

by threats that are intended to overcome the will of the victim to resist. Consent can be acomplete defense to rape, unless it is obtained by force or threat of force. here a

defendant is engaged in a consensual seual relationship with the victim, the victim can

freely revo6e her consent at any time. !uch evidence demonstrates that the se was

against her will.

CLASS NOTES

Unerstan 2orc!)%e Ra0e

• >ape is the Ecarnal 6nowledge of a woman forcibly and against her willF C

• 4orce or threat of physical force is re:uired

•Penetration to any degree is sufficient

• Physical resistance is not re:uired

• Consent by the victim is a complete defense

o Consent that is induced by threat of violence is &oid .

o ?eneral fear of a defendant is not sufficient to void consent

C. Ra0e )* 2rau or Non-P$*s!ca% T$reats

'oro . Su0er!or Court

o Issue: 0oes rape obtained by fraud in the inducement nullify consent<

o Ru%e; >ape perpetrated by fraud in the factum nullifies consent, whereas rape

perpetrated by fraud in the inducement does not.o >ape perpetrated by fraud in the factum nullifies consent, whereas rape

perpetrated by fraud in the inducement does not. 4raud in the factum is a

misrepresentation of a fact that goes to the very nature of that fact.

CLASS NOTES

%&


21/45

/nderstand the distinction between 2rau !n t$e 2actu" and 2rau !n t$e Inuce"ent

in rape cases.

2actu" when the deception 8fraud9 causes a misunderstanding as to the fact 8se act9

itself, there is no legally recogni*able consent because Ewhat happened is not that for

which consent was given.o -ample; patient that consents to penetration by a medical instrument, not to

seual intercourse.

Inuce"ent: where consent to seual intercourse is induced by deception 8fraud9,

consent is valid, absent statutory language to the contrary.o -ample; ictim consents to se with a single, wealthy man, but in actuality he is

married and homeless, but deceives victim into believing otherwise.

CHAPTER NINE- GENERAL DE2ENSES TO CRIMES

C. Principles of 1ustification. Se%#- De#ense

• Un!te States . Peterson

o Issue: 89 May the initial aggressor in a fatal conflict invo6e the doctrine of self

defense to 5ustify 6illing his adversary< NO.o Ru%e: 89 /nder the law of the 0istrict of Columbia, the initial aggressor in a fatal

conflict may not invo6e the doctrine of selfdefense to 5ustify 6illing his

adversary, unless he withdrew from the conflict in good faith and communicated

his withdrawal by words or acts. The doctrine is rooted in necessity. 0eadly force is only 5ustified if there is

no alternative. A person must honestly and reasonably believe that there is

an imminent threat of death or serious in5ury. @nly then may he use deadly

force to save himself. Nevertheless, a person who provo6es a fatal conflict

does not have a right to 6ill in selfdefense.o Issue: 8%9 3s the initial aggressor in a fatal conflict under a duty to retreat before

using deadly force in selfdefense< 1ES.o Ru%e: 8%9 /nder the law of the 0istrict of Columbia, the initial aggressor in a fatal

conflict is under a duty to retreat, if he may do so safely, before using deadly force

in selfdefense.

CLASS NOTES

2u%%* Unerstan:

.9 hen one has a right to self defense 8canBt support it wK selfgenerated Necess. % 6ill9

%.9 ho is the EAggressor


22/45

'. EReasona)%e 'e%!e#< Re7u!re"ent

• Peo0%e . Goet

o Issue: 3s a person 5ustified in using deadly force in selfdefense if he sub5ectively

believed such force was necessary to prevent an attac6 or a robbery< NO.

o Ru%e: 3n New =or6, a person is 5ustified in using deadly force in selfdefense ordefense of another only if she ob5ectively and reasonably believes an attac6er is

either 89 using or about to use deadly force or 8%9 committing or attempting to

commit a 6idnapping, forcible rape, forcible sodomy, or robbery.

CLASS NOTES

hat is the E>easonable 2eliefF re:uirement in selfdefense case<

!ub5ective and @b5ective components must be metQ actual outcome is irrelevant

o Su)6ect!eThe defendants had a good faith sub5ective belief that something under

this category was about to happen.

o O)6ect!e a person under the same circumstances as the person who used the deadlyforce wouldBve reacted the same way. 3t would have been reasonable for anyoneunder those circumstances to react the same way this person did.

1ou can sat!s#* su)6ect!e>o)6ect!e co"0onents &>o t$e ot$er.

• EA person may not use deadly force upon another person unless an attac6er is either 89

using or about to use deadly force or 8%9 committing or attempting to commit a6idnapping, forcible rape, forcible sodomy, or robbery.F

H1POTHESIS- MAGGIE 2ROM ITAL1:

• Su)6ect!e This component is met because she was in good faith E4earful for her lifeF

• O)6ect!e ist all of the ob5ective things that would lead her to believe sheBs in danger.

o They all loo6ed directly at Maggie.

o No aggressive conductG she didnBt meet the re:uirements for a selfdefense claim

based on the reasonable persons approach.

H1POTHESIS- DONT SLAP ME:

o !he would not prevail in a selfdefense claim. =ou cant use deadly force for non

deadly force conduct.

Genera% De#enses to Cr!"es

C. Principles of 1ustificationD. De#ense o# Ot$ers

Peo0%e . 8urr

o Issue: 3s a defendant who 6ills in the defense of an unborn and unviable fetus

entitled to a 5ury instruction on the defense of others< 1ES. A NON-IA'LE 2ETUS IS ALWA1S WORTH1 O2 PROTECTION

%%


23/45

o Ru%e: A defendant who 6ills in the defense of an unborn and unviable fetus is

entitled to a 5ury instruction on the defense of others.o Ho%!n/: 1ust as a homicide is 5ustifiable if it is committed in selfdefense, a

homicide is also 5ustifiable if it is committed in the defense of others. 3n this

5urisdiction, the defense applies to a fetus, regardless of whether it is viable.

MichiganBs legislature has passed the fetal protection act, which demonstrates its

intent to protect fetuses, both viable and unviable. 'owever, this defense is only applicable where the harm against the fetus

is unlawful. Thus, a defendant may not invo6e this defense to 5ustify a

homicide perpetrated to prevent a legal abortion.o Le/a%!t* o# t$e act this defense can only be used against unlawful assaulted or

negligent conduct. Never lawful conduct.

CLASS NOTES

o The intervener typically has the same right as the third party.o 0eadly force can be responded to with deadly or nondeadly force

o Nondeadly force can only be responded to with nondeadly force

o /nderstand Principles of 1ustification; 0efense of @thers

o ?enerally, a person is 5ustified in using force to protect a Drd party from unlawful

force by an aggressor. The intervenerBs right to use force parallels the Drd partyBs

right of selfdefense.o /se of the E0efense of @thersF 5ustification ma6es no distinction between

strangers and relatives.o The defense may be evo6ed in the protection of an unborn child, including a

nonviable fetus or embryo, from assaultive or negligent conduct.o Inow the difference between alter ego J reasonable app. >ule

De#ense o# Anot$er:

o The right of a person to protect a third party with reasonable force against another

person who is threatening to inflict force upon the third party.

A%ter E/o Ru%e:

o The primarily obsolete rule that a person coming to the aid of a third party has no

more right to defend the third party than the third party would, himself, have had

to defend himself.

;Reasona)%e A00earance Ru%eFo @ne reasonably believed that they were in danger and their reaction was proportional.

Also, he only used the force necessary to stop the attac6.

H1POTHETICAL- INA

• After doing what he thought was saving Uina from a rapist, the man attac6ing her turned

out to be an undercover 423 agent and >ob was charged with assaulting the officer. >ob

%D


24/45

was from Michigan, where they adopted the E 'lter go $leF J 3llinois has adopted the

E $ea%ona*le '++earance $le., hich one should >ob choose to be prosecuted under<

• 'e should choose the E Reasonable Appearance Rule, because 3ntervener only has rights

that are afforded to the third party. !ince she didnBt lawfully have the right to resist the

lawful arrest, neither did heo /nder the ; Reasonable Appearance Rule -, he reasonably believed that she was in

danger and his reaction was proportional. Also, he only used the force necessary

to stop the attac6.

Genera% De#enses to Cr!"es 3Cont.4

D. Principles of -cuse. Duress

• Un!te States . Contento- Pac$on

o Issue: 3s a defendant ecused from criminal culpability if he commits his crime

under a threat of death or serious bodily in5ury< 1ES.

o Ru%e: A defendant is ecused from criminal culpability if he commits his crimeunder a threat of death or serious bodily in5ury.

A defendant is ecused from criminal culpability if he commits the crime under duress.

T$ere are t$ree e%e"ents to t$e e#ense o# uress.

o 2!rst the threat of death or serious bodily in5ury must be immediate.

o Secon- the defendant must act on a wellgrounded fear that the threat will be

reali*ed.o T$!r- there must be no reasonable opportunity for the defendant to escape. 'ere,

the district court held that the threat was not immediate because the threat would

only be acted upon after ContentoPachonBs future failure to cooperate.

CLASS NOTES

4ully understand 0uress and Necessity

Duress; 3mmediate threat of death or serious bodily harm, genuine fear, no escapability

o MAN MA0- T'>-AT T@ =@/ @> =@/> @-0 @N-

• Necess!t*: A person is faced with a choice of two evils and must decide whether to

commit a crime or an alternative act that constitutes a greater evil.

• T&o E!%s

o 2!rst- 2>-AI3N? C>3M3NA A. !@C3-T= 2A>! C@N0/CT.

o Secon @!! @4 34-. !@C3-T= 2-A>! 2/>0-N @4 0-AT'.

9. Into(!cat!on

• Un!te States . eac$

o Issue: 0oes intoication negate the mens rea for a crime and thereby serve as a

defense to the crime< 1ES.o Ru%e: 3ntoication negates the mens rea of a specific intent crime and thereby

serves as a defense, but it does not negate the mens rea of a general intent crime.

%+


25/45

o 'owever, intoication only negates the mens rea of crimes that re:uire s0ec!#!c

!ntent. 3n order to determine whether intoication is a defense to the crimes each

was convicted of, this court must determine whether they are specific intent or

general intent crimes. Accordingly, ( is a specific intent crime.

CLASS NOTES

2u%%* unerstan &$en !nto(!cat!on as a e#ense to a cr!"e.

o hen it negates the Mens >ea of a !pecific 3ntent crime. 8Never ?eneral 3ntent9

• 0istinction between olntary and In&olntary 3ntoication

o o%untar* @nly a defense for !pecific 3ntent Crimes.

o Ino%untar* Can be a defense to both !pecific and ?eneral 3ntent Crimes.

• -ffect on !pecific 3ntent Crimes< Ne/ates Mens Rea

• -ffect on ?eneral 3ntent Crimes< Genera%%*, none.

• 0istinction between Coerced, Pathological, 3ntoication by 3nnocent Mista6e, and

/nepected 3ntoication.o Coerce- 3ntoication involuntary induced by reason of duress or coercion.

o Pat$o%o/!ca%- !ubstance triggers an unusual response due to a medical condition.

o Innocent M!sta@e- /naware of substanceBs content or tric6ed into ta6ing it.

o Une(0ecte- /nepected intoication from ta6ing a medically prescribed drug.

Ino%untar* Into(!cat!on

• S0ec!#!c Intent Cr!"es 3f a charged crime is a specific intent crime, meaning that the

criminal defendant must have had the specific intent to commit the crime in :uestion,

involuntary intoication can be a defense to criminal charges if it prevents the defendant

from forming the intent that is re:uired.

• Genera% Intent Cr!"es 3nvoluntary intoication can also be a defense to a general

intent crime if the defendant can establish that the involuntary intoication acted similarly

to an insanity defense and prevented the defendant from understanding the nature of his

or her actions or differentiating between right and wrong.

o%untar* Into(!cat!on

• /nli6e involuntary intoication, voluntary intoication is NEER a defense to a general

intent crime. 'owever, voluntary intoication may be used as a defense to specific intent

crimes if, as with involuntary intoication, it prevents the defendant from forming thecriminal intent necessary to commit the crime.

o 3n some cases, the defense of voluntary intoication does not completely absolve

the defendant of liability but instead reduces the overall culpability for the crime.

MIDTERM UESTION

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!arah is pregnant. Tom wal6s up to her with a gun and tells her once she has that mans baby in Dmonths he will 6ill her. Tom loo6s away and !arah stabs him in the nec6 6illing him. !hould shewin on selfdefense grounds<

=. Insan!t*C. !truggling for a 0efinition; The Tests of 3nsanity

State . +o$nson

o Issue: hether the test for insanity should consider solely cognitive defects.

o Ru%e; The test for insanity should encompass both cognitive and volitional

defects.

• MNa/$ten Ru%e A rule that says a defendant is not criminally liable if, by reason of

mental disease or defect, he does not 6now the nature and :uality of his actions or, if hedid 6now it, he did not 6now his actions were wrong.

CLASS NOTES• 4ully understand the Insan!t* defenses 8each re:uires Emental disease or defectF at the

time of crime according to legal rather than medical policy9

NEER WILL TEST IRRESISTA'LE IMPULSE>CONTROL TEST

T$e MNa/$ten Ru%e

o Clearly proved at time of committing the act, 0 was laboring under defect of

reason, from disease of the mind. As not to 6now nature and :uality of the act, or

3f he did 6now it, did 6now that what he was doing wrong 8legally9

8A cognitive test9o

onBt test on whether itBs a legal or moral wrong. Play it safe and go with both.o MNa/$ten oesnt ea% &!t$ o%!t!ona% e#!c!enc!es. ONL1 Co/n!t!e.

• 0ifference between Cognitive and olitional 0eficiencies.

o Co/n!t!e- 0efect in my brain. /nable to decipher right activity from wrong.

o o%!t!ona%- 3 6now what 3Bm doing, and that itBs wrong, but 3 canBt help but do it.

Irres!st!)%e I"0u%se>Contro% Test

o . Acted with irresistible repulse

o . ost power to choose between right and wrong

o 9. 0efendantBs will and actions are beyond their control

Prouct Test

o

Accused not criminally responsible if his unlawful act was product of mentaldiseaseKdefect

Moe% Pena% Coe Test- Sect!on =. 3ac@no&%e/es o%!t!ona% an co/n!t!e e#ects4

o hen, as a result of mental disease or defect, defendant lac6ed substantial

capacity to appreciate criminality of conduct. OR,o hen, as a result of mental disease or defect, defendant lac6ed substantial

capacity to conform his conduct to re:uirements of law.

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H1POTHETICAL- I Cant 'reat$e

'e does not satisfy the MBNaghten rule because he doesnBt ac6nowledge the moral factor,

but we can infer that we 6now he was merely playing.

As to the nature and :uality of the act, he canBt claim that he didnBt 6now those facts

because he was s:uee*ing a human beings nec6. NJO doesnBt mean that he doesnBt 6now

the level of pain or damage heBs causing, but it goes to whether or not he was aware ofwhat he was actually doing. The fact that he answered yes to 6nowing he was cho6ing ahuman being is enough to prove that he 6new the nature and :uality of what he wasdoing.

Nature- hat is actually being done.

ua%!t*- The impact of whatBs been done.

. In#anc* In re Deon T

Issue: 3s a child criminally culpable for his actions if he is incapable of differentiating

between right and wrong< NO.

In#anc* De#ense- 0efense that removes liability for a 5uvenileBs crime if the 5uvenile

defendant is unable to differentiate between right and wrong.

• The primary consideration in an infancy case is whether the 5uvenile defendant can

distinguish right from wrong.o 3f the defendant can ma6e the distinction, he is deemed criminally culpable for his

actions.

• According to common law, children under seven years of age are incapable of

differentiating between right and wrong.o Children fourteen or older are deemed capable.

Children between seven and fourteen are presumed incapable, but this

presumption is rebuttable.o 'owever, the closer the child is to the age of fourteen, the more li6ely he can

appreciate the difference between right and wrong, and the lighter the prosecutionBs burden in overcoming the presumption.

CLASS NOTES

• 4ully understand the In#anc* Doctr!ne- WILL 'E TESTED ON THIS

o 4or children 89 under the age of $, the are presumed without criminal

capacity. Uero amount. + years and older are treated as EfullyresponsibleQ and 8D9 between $ and +Vrebuttable presumption of

criminal capacity.• The defense is available in 1uvenile proceedings

• @nce defense is raised, the prosecutor has the burden of rebutting the

presumption by producing evidence that permits a reasonable inference that 06new at the time of the act that the difference between right and wrong8Cognitive -lement @N=K no volitional9.

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• In#anc* De#ense Percenta/e Ru%e- @n day before $th birthday, child has &)

cognitive capacity. @n day of +th birthday, child possesses &&) capacity. @nthe time scale between the $th and day before +th birthday the percentage ofchildren with capacity, steadily increases, so at midpoint, age & years, Lmonths, (&) of children will have criminal capacity.

In re Devon Cont.

• hat are the potential flaws in the courts finding that;

• 0evon reaching the Lth grade while still years old Etends to supportF his

cognitive capacity.

• That 0evonBs silence and E!tonewallingF demeanor was an indication of Ehis

allegiance to the /nderworldBs Code of !ilenceF and that he is Efully consciousof the ongoing war between Elawful authority and those that flaunt it.F

• EChildren who are unaware that what they are doing is wrong have no need to

hide out or conceal their activities.F

E. Ne& De#enses

. AddictionKAlcoholism Constitutional 0efense Po&e%% . Te(as- Powell was arrested for public intoication. Powell argued that his

conduct was unavoidably caused by his disease of chronic alcoholism. 'e further arguedthat punishing him for conduct that was symptomatic of his disease would constitutecrue% an unusua% 0un!s$"ent, !n !o%at!on o# t$e E!/$t$ an 2ourteent$

A"en"ents. 3n support of his theory, a certified psychiatrist testify as to his condition.ade stated that although there is no clear definition of chronic alcoholism, one who

suffers from that condition drin6s involuntarily. 'e further stated that Powell was achronic alcoholic who could not control his behavior because he has a strong compulsionto begin drin6ing, and that once he begins drin6ing, he has an uncontrollable compulsionto drin6 ecessively. The trial court held that chronic alcoholism is NOT a defense to thecharge of public drun6enness. It !, $o&eer, a%%o& Po&e%% to su)"!t t$ree #!n!n/s o##act: 34 that chronic alcoholism is a disease that overpowers oneBs will to resist thecontinuous and ecessive consumption of alcoholQ 34 that a chronic alcoholic who goesout in public does so due to his disease, not out of free willQ and 394 that Powell was achronic alcoholic. Powell was convicted of the charged crime.

o Issue: hether punishment of conduct that is symptomatic of chronic alcoholism

is in violation of the -ighth and 4ourteenth AmendmentsB proscription against

cruel and unusual punishment. NO. 3R- No, !t !s NOT !n !o%at!on.4o Powell is not punished for being a chronic alcoholic, but for brea6ing the law by

going out in public while intoicated.o Punishing conduct stemming from chronic alcoholism in N@T cruel and unusual

punishment because medical research on chronic alcoholism is too vague andunsettled.

o 3f the Court rules that his chronic alcoholism relieves him of guilt, it creates a new

defense to criminal culpability.

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o The punishment of conduct that is symptomatic of chronic alcoholism is not in

violation of the -ighth and 4ourteenth AmendmentsB proscription against crueland unusual punishment.

CHAPTER TEN- INCHOATE O22ENSES

'. Attempt9. Mens Rea

Peo0%e . Gentr*- ?entry lived with his girlfriend, >uby 'ill. @n 0ecember D, #D,

?entry and 'ill had an argument, during which ?entry spilled gasoline on 'ill. !he laterwent into the 6itchen and was near the stove when the gasoline ignited. ?entry was ableto put the fire out, but 'ill sustained serious burns. ?entry was tried for attemptedmurder. The trial court instructed the 5ury on the definition of attempt murder, as well asthe four different mental states that were sufficient to prove murder. ?entry appealed,arguing that the courtBs instruction as to the four different mental states allowed the 5uryto convict him for attempt murder without showing that he had the specific intent to 6ill.

o Issue: 0oes conviction of attempted murder re:uire a specific intent to 6ill< 1es.

o According to Peo+le &. Kraft , a finding of a specific intent to 6ill is necessary tosustain a conviction for attempt murder.

o Mere 6nowledge that death or serious bodily harm may occur is insufficient.

Thus, the trial courtBs instruction listing the culpable mental states of

murder, which included both intent and 6nowledge, erroneously allowedthe 5ury to convict ?entry of attempt murder without finding a specificintent to 6ill. ?entryBs conviction is reversed and a new trial is ordered.

• Inc$oate Cr!"e- A crime that is anticipatory or preparatory in nature and for which an

individual can be held criminally liable without the actual commission of the crime beinganticipated or prepared for.

=. Actus Reus

Un!te States . Manu6ano-

o Mere Pre0arat!on- An act that constitutes a step towards the completion of a

crime but does not constitute an overt act or a substantial step.

). D!st!n/u!s$!n/ Pre0arat!on #ro" Per0etrat!on: T$e Tests at Wor@

Peo0%e . R!o- >i**o along with three others intended to rob a man of a pay roll valued

around W,%&&. >i**o was to point out the man to the others who were to commit theactual robbery. The men, two of whom had guns, drove around town in a car loo6ing forthe man, but were never able to find him. 0uring their search, nearby police becamesuspicious and followed the vehicle. !hortly after >i**o 5umped out of the car and raninto a building, all four were arrested for attempted robbery despite never finding the manthey intended to rob. >i**o and the others were convicted of attempted firstdegreerobbery and they appealed.

o Issue; 3s the crime of attempt committed when an act as tending to the

commission of a crime is so near to its accomplishment that in all reasonable probability the crime itself would have been committed, but for timelyinterference< 1ES.

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o Attempt is defined by New =or6 statute as EXaYn act, done with intent to commit a

crime, and tending but failing to effect its commissionR.Fo The word EtendingF is very indefinite. ETendingF means to eert activity in a

particular direction.o Any act in preparation to commit a crime can be said to be EtendingF towards its

accomplishment. 2ut it is only those acts which advance very near to the accomplishment of

the intended crime which support an attempt conviction.

• 'ere, >i**o and the others were loo6ing for the pay roll individual to rob him of the

money, but they were never able to even locate him.

• R!o an t$e ot$ers $a t$e !ntent to co""!t t$e cr!"e, )ut neer $a t$e o00ortun!t*.

• Those acts are too remote to support the convictions for attempted firstdegree robbery.

• The 5udgments of conviction are reversed.

ADD NOTES 2ROM SLIDES 2OR GENTR1-RIO

H1PO- Teac$ers Te"0tat!on

• !he should be charged.

• Le/a% I"0oss!)!%!t* occurs when 0Bs actions, even if fully carried out eactly as she

intends, would N@T constitute a crime.

• 2actua% I"0oss!)!%!t* occurs when the actions intended by 0 are criminals, but a

circumstance or fact un6nown to the 0 prevents him from bringing about the intended

result. N@ 0-4-N!- 4@> ATT-MPT C'A>?-.• ONE MORE SLIDE ON TWEN

State . Reees- >eeves 809 and Molly Coffman were twelveyearold girls who attended thesame middle school. @n 1anuary (, D, >eeves and Coffman agreed over the phone to 6ill their homeroom teacher, 1anice ?eiger, with rat poison. The net morning, Coffman too6 a pac6et ofrat poison to school. 0uring the bus ride to school, Coffman told another student of the plan. Thestudent told school officials once she arrived at school. ?eiger noticed when she arrived in herclassroom that >eeves and Coffman were leaning over her des6. They left a purse on ?eigerBsdes6 net to her coffee cup. Authorities found rat poison in the purse. 2oth >eeves and Coffmanwere found guilty of attempted seconddegree murder.

• Issue- hether a defendant is guilty of attempt only if the defendant was on the brin6 ofcompleting the offense. NO.

• Ru%e- The crime of attempt does not re:uire that the defendant is on the brin6 of

completing the offense.

• Oert Act- An action that constitutes a manifestation of the desire to commit a crime

rather than 5ust mere preparation for such an action.

• Dupuy Ru%e- 0efendant would have to be on the brin6 of completing the crime in order

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to be found guilty of attempt. 84ailed attempt9 A'ANDONED RULE.

• Moe% Pena% Coe- if one purposely does or omits to do anything which, under the

circumstances as he believes them to be, a su)stant!a% ste0 !n a course o# conuct0%anne to cu%"!nate !n $!s co""!ss!on o# t$e cr!"e.

o 3f 3 believe that 3 have poison and if the facts are as 3 perceive them to be, 3 am

ta6ing a substantial step towards harmingKpoisoning this person. Ho%!n/- This court instead holds that if a defendant possesses materials for the

commission of a crime while at or near the scene of the crime, and the defendant has nolawful purpose to possess the materials under the circumstances, a 5ury may rely on suchevidence to find that the defendant has ta6en a substantial step, if the evidence stronglycorroborates the actorBs criminal intent. T$e con!ct!on !s a##!r"e.

CLASS NOTES

• /nderstand why the court abandoned the Dupuy rule.

• hen an actor possess materials to be used in the commission of a crime, at or near the

scene of the crime, andR.

• here the possession of those materials can serve no lawful purpose of the actor underthe circumstancesR.

• The 5ury is entitled, but not re:uired to find that the actor has ta6en a E!ubstantial !tepF

toward the commission of the crime if such action is strongly corroborative of the actorBsoverall criminal purpose.

Peo0%e . T$ousan- @n 0ecember #, #, 0eputy illiam ic*bins6i made contact withChris Thousand 809 in an online chat room. 0eputy posed as a + yearold girl named 2e66a inan effort to determine whether Thousand, a twentythreeyearold male, was engaging in criminalactivity online. @ver the net wee6, 2e66a and ThousandBs conversations became seuallyeplicit. Thousand sent her a photograph of male genitalia and as6ed if she wanted to meet inorder to engage in seual activity. The two arranged to meet at a nearby restaurant. @nceThousand arrived, ic*bins6i apprehended him and charged him with attempted distribution ofobscene material to a minor. Thousand filed a motion to :uash the charge of attempt, since it wasimpossible to convict him of the underlying offense. The circuit court granted the motion anddismissed the case. The Court of Appeals affirmed.

• Ru%e- A defendant can be convicted of attempt even if it is impossible to complete the

underlying offense.

• At common law, there are two types of impossibility; factual and legal.

o 2actua% !"0oss!)!%!t* occurs when factual circumstances preclude the

completion of a crime.

E(.- when a defendant tries to 6ill someone with an unloaded gun. 4actual impossibility is never a defense to an attempt crime.

o Le/a% !"0oss!)!%!t* on the other hand, may be a defense to an attempt crime if it

is a pure legal impossibility. This occurs when a defendant believes his conduct iscriminal but in actuality, it is not.

E(. a defendant might engage in seual intercourse with a fifteen year old

in a 5urisdiction where the age of consent is fifteen.

• -ven if the defendant mista6enly believes the age of consent is

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siteen, he is not guilty of statutory rape.o A H*)r! Le/a% I"0oss!)!%!t*- occurs when a defendant is factually mista6en as

to a legal status, the eistence of which is a necessary element of the crime. E(.- a defendant who receives unstolen property believing it is stolen may

argue that he cannot be charged with the crime of receiving stolen

property.• 3n that situation, he is factually mista6en as to the legal status of

the property.

Ho%!n/- 3t is true that Thousand cannot be convicted of the underlying crime, since he

could not be guilty of distribution of obscene material to a minor who does not eist. 2uthere, he is not charged with the underlying crime. 'e is charged with an attempt of thatcrime, and it is irrelevant whether or not he could have completed the underlying crime.All that is relevant is whether he had the re:uisite intent and too6 the re:uisite act infurtherance of that intent. Accor!n/%*, t$e c!rcu!t court s$ou% not $ae !s"!sse t$ec$ar/e a/a!nst T$ousan.

CLASS NOTES• C@N->N-0 3T' !/21-CT3- 2-3-4 8what one believes9 @4 'AT T'- CA!-

3! AN0 NOT 'AT 3! ACT/A= 3!.

• 2actua% I"0oss!)!%!t*- NOT A IA'LE DE2ENSE

o -ists when defendantBs intended end constitutes a crime but fails to consummate

it because f a factual circumstance un6nown to her or beyond her control.

• Le/a% I"0oss!)!%!t*- DE2ENSE

o Pure egal impossibility

2ars an attempt conviction

o 'ybrid legal impossibility

0efendantBs goal was illegal, but commission was impossible due to afactual mista6e made by her regarding the legal status of some factorrelevant to her conduct.

• ONL1 THING WE WILL 'E TESTED ON IS

• 0istinction be tween factual impossibility and pure legal impossibility

Co""on&ea%t$ . McC%os@e*- !hortly after midnight, an alarm went off at u*erne CountyPrison, alerting guards that a prisoner was attempting to escape from the recreation area. Thealarm was only audible in the guardBs office. The guards immediately chec6ed the inmates, butno prisoners were found missing. 3nvestigation revealed that someone had cut a piece of barbedwire in the area where the alarm went off. The guards also found a bag filled with civilian

clothing. The guards later determined the bag belonged to McClos6ey 809. McClos6eyapproached one of the guards and confessed that he had planned on brea6ing out of prison thatnight, but decided against it when he thought about the conse:uences. McClos6ey was convictedof attempted prison breach, and he appealed to the !uperior Court of Pennsylvania.

• Ru%e- A defendant is not criminally liable for attempt if his plans never go beyond mere

contemplation.

• Ho%!n/- 3f the defendant crosses the line into intent and later abandons the plan, he may be able to avoid liability for the crime, but not the attempt. See agan- %+ra. 'ere,

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McClos6ey intended to escape from the prison and made preparations accordingly. Nevertheless, the evidence shows that McClos6ey only got to the prison wall, which isstill inside the prison, before deciding to abandon his plans. McClos6ey never reached the point of actually carrying out his plan and thus never went beyond merely contemplatingthe escape. 'ecause McC%os@e* neer set $!s 0%ans !n "ot!on, $e cannot )e #oun

/u!%t* o# atte"0t. T$e con!ct!on an sentence are acate.

CLASS NOTES

Unerstan t$e A)anon"ent 3Renunc!at!on4 Pr!nc!0%e

o A person is not guilty of attempt if; 34 she abandons her effort to commit the

crime or prevents it from being committedQ and 34 her conduct manifests aco"0%ete and o%untar* renunciation of her criminal purpose.

H1PO- 'an@ o# A"er!ca

3t seems li6e she abandoned her criminal purpose, 'UT there is not a complete and

voluntary renunciation of her criminal intent because she left with the mindset that she

couldnBt complete this crime alone because the ban6 was heavily guarded and she neededhelp from her cousin. Therefore she did not fulfill the re:uirements.

o 3f someone decides they wont do something right then because they assessed the

situation, and decided to try again later. 8cameras, security9 NOTA'ANDONMENT

o 3f someone has a complete change of heart and stops because they truly donBt

want to do it anymore and have no intention of attempting it ever again, they DOSATIS21 A'ANDONMENT.

C. So%!c!tat!on

So%!c!tat!on-The criminal offense of urging, inciting, or counseling someone to commit

an unlawful act.

-IMPORTANT No so%!c!tat!on occurs !# t$e so%!c!tor atte"0ts to co""!t t$e act

$!"se%# OR !# $e as@s #or ass!stance #ro" anot$er 0art*.

State . Mann-

• 3nchoate @ffenses !olicitation !pecific 3ntent Crime

• !olicitation is a controversial crime because the offense is complete once the

solicitor as6s, entices, or encourages another to carry it out.

• The solicitor is considered more dangerous than the solicitee because the solicitor

instigates the crime.

• The solicitor is also considered more morally culpable, since he see6s to shield

himself from liability by soliciting another to carry out the actual crime.

• The offense of solicitation merges into the crime solicited if the latter offense is

committed or attempted by the solicited party.o E(a"0%es !n case)oo@.

CLASS NOTES

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• 3nchoate @ffenses !olicitation !pecific 3ntent Crime

o !olicitation involves as6ing, enticing, inducing, or counseling of another to

commit a crime.o A solicitor

Plans, schemes, suggests, encourages, and incites

• @ffense is complete as soon as the solicitor as6s, entices, or encourages another to

commit the target offense. 8Completion of the crime isnBt necessary9

• hat is EMergerF

o 8Conspiracy, attempt, or completed crime9

W$at !s t$e ;Innocent Instru"enta%!t*< Ru%e5

o !omeone thatBs completely unaware that they are engaging in criminal conduct.

H1PO 3Mae u04 ;Innocent Instru"enta%!t*< Ru%e

• IelseyBs sitting on her porch and Momo comes up and starts a convo. 'e then tells her

that he bro6e his arm and was wondering if she could go across the street and get his bi6e

because heBs too wea6 to push it. !he does as he as6s and wal6s Ehis bi6eF bac6 to her porch. /nbe6nownst to her, it is not his bi6e and she 5ust stole someone elseBs bi6e believing that it was his. Wou% 8e%se* )e /u!%t* o# so%!c!tat!on5

No, because Ielsey didnBt 6now that she was doing anything

unlawful. Therefore, Momo didnBt solicit a crime because Ielseywas unaware that any crime was being committed.

State . Cotton- Cotton 809 was charged with the crime of engaging in seual conduct with hisstepdaughter. hile in prison, Cotton wrote two letters to his wife, telling her to convince his

stepdaughter not to testify against him. 'e instructed his wife to offer his stepdaughter money toleave the state and to tell her that testifying wouldnBt be nice and would li6ely place her in thenews. /n6nown to Cotton, his cellmate intercepted the first letter and turned it over to theauthorities when 0 as6ed him to get a stamp for him to mail it. 'e never mailed the second letter.Cotton was charged with two counts of criminal solicitation and convicted.

• Ru%e- An uncommunicated solicitation is insufficient to constitute the offense of criminal

solicitation.

• Ho%!n/- The lac6 of actual communication prevents CottonBs conviction under the

solicitation statute. T$ere#ore, Cottons con!ct!ons #or so%!c!tat!on are reerse.

Proof that a defendant meant to communicate a solicitation is insufficient to constitute the

offense of criminal solicitation.o There must be proof that the solicitation was actually communicated to the

solicitee.

This is distinct from the Model Penal CodeBs approach. The Model Penal Code only

re:uires that the defendant intended to communicate the solicitation. HHNOT TESTED

hen this 5urisdictionBs egislature adopted the Model Penal CodeBs definition of

solicitation in its criminal code, !t s0ec!#!ca%%* o"!tte t$e 0ro!s!on onunco""un!cate so%!c!tat!ons.

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o This suggests that the egislature meant to re:uire actual communication from the

defendant to the solicitee.

The lac6 of actual communication prevents CottonBs conviction under the solicitation

statute. Cotton is at most guilty of attempted solicitation.

CLASS NOTES 3nchoate @ffenses !olicitation

o !olicitation re:uires some form of actual communication from 0efendant

o The communication can be to either an intermediary or the person intended

to be solicited.

0oes solicitation re:uire actual communication

ONL1 COMMON LAW TESTED

H1PO- T$e Punc$

!hould he be convicted for solicitation<

No, because itBs a S0ec!#!c Intent Cr!"e. 'e Esaid it in 5est 85o6ingly9F so

therefore didnBt have the specific intent to commit the crime and ta6e the punishment. 'e didnBt mean for him to do that.

H1PO- T$e Poc@et Pro)%e"

hich is the most accurate answer<

• A NO. Momo prevails because of legal impossibility<

• 2 NO. Momo prevails because it was factually impossible for him to pKp chec6.

• C NO. Momo will be convicted because Chris attempted to pic6poc6et >alph.

•

D- Momo will be convicted because of the Mens >ea component of the crime.

H1PO- Sn!0er

C- NO, >alphie should not be convicted of solicitation, because he was the

solicitor who was as6ing Momo to help him with a crime that he was going to ta6ethe lead on. Therefore, the re:uirement for solicitation isnBt satisfied because>alphie was going to do it himself, AN0 he as6ed Momo for assistance.

Ra%0$!e as@e Mo"o #or $e%0, )ut not to o !t $!"se%#. T$ere#ore, $e

s$ou%nt )e c$ar/e.

I"0ortant No so%!c!tat!on occurs !# t$e so%!c!tor atte"0ts to co""!t

final- criminal law outline

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