Dressler Outline - Internet PDF
Dressler Outline - Internet PDF
Dressler Outline - Internet PDF
I. INTRODUCTORY POINTS
A. Sources of Criminal Law.
1. Common Law.
2. Statutes Derived from Common Law.
3. Model Penal Code.
4. (Bill of Rights)
1. Criminal
a. Defendant is punished (incarcerated)
b. The criminal conviction itself says defendant is a moral wrongdoer. It is a condemnation by
the community/ “a morality play.” → (Moral blameworthiness)
• Usually about things you are not supposed to do as opposed to things you must do
•
2. Civil
a. Defendant pays victim. (compensation)
b. Defendant is not morally stigmatized. (tort claims)
C. Theories of Punishment.
• The moral desert of an offender is a sufficient reason to punish him or her which is a
necessary condition of punishment
• Wouldn’t want to punish someone mentally ill bc they are not morally culpable
• Rests on moral culpability
D. Burden of Proof.
1. “Beyond a Reasonable Doubt.” This standard means that the fact-finder must have an abiding
conviction of the defendant’s guilt.
● rooted in common law, state cannot decide to have a lower standard.
2. The government must prove, beyond a reasonable doubt, every element of a crime.
This is a constitutional requirement under 5th and 14th Amendment.
OWEN V. STATE
• A conviction based on circumstantial evidence alone is not to be sustained unless the
circumstances are inconsistent with any reasonable hypothesis of innocence
B. Mens Rea. The mental part of the crime, or the state of mind of the defendant when he committed the crime.
• This is not motive
b. An act is voluntary if it evidences in volition; the act is a willed act that follows from a
mental decision by the actor.
- This is the grain of mens rea
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MARTIN V STATE 128
• Case about drunk driving. He was not voluntarily on the highway
o An act necessarily means voluntary act –
something willed
c. Omission: A legal duty to act (special relationship), not just a mere moral obligation. Only
responsible if:
1. Statute imposing a duty to act – most clear. Ex. Would be reporting requirement of
teachers and physicians
2. Special relationship
a. Parent/child; husband/wife; master/seaman; student/teacher
3. Assumption of a contractual relationship to care (babysitter)
4. Voluntary assumption of care that excludes others → can’t stop once you start.
Cannot leave them secluded where it prevents others from rendering aid or reduces
the chance EX. People swimming out and preventing others from saving. Simply
swimming out and quitting does not fall under this category.
5. (Some States) Accidental creation of risk of harm to others – starting a fire
• If there is an omission involved, FIRST QUESTION SHOULD BE IS THERE A LEGAL
DUTY, IF NOT, NO CRIME.
• If there is a duty to act, look at what is required, how far does the person have to go. LOOK AT
THE SCOPE. There has to be some limits for imposing liability and is likely to be a narrow
interpretation
MPC 2.01(3)(a) & (b) – Omission satisfies conduct element of crime when
The statute defining the offense expressly states that failure to act is a crime, or
The defendant has a duty to act imposed by civil law
2. SOCIAL HARM – the intangible harm resulting from any crime including a community’s loss of a
sense of security. The negation, endangering, or destruction of an individual, group, or state interest
which is deemed socially valuable
• Every crime has conduct but some have a result as a requirement of a crime
• Can consist of wrongful conduct, wrongful result, or both, and attendant circumstance elements.
Result Crimes → law punishes “unwanted outcome/prohibited result” [social harm] - murder
Conduct Crimes → (law prohibits specific behavior) defined in terms of harmful conduct, even
where there may be no harmful result. – like drunk driving
o CAUSATION glues the voluntary act and social harm together but this isn't really a topic in
conduct crime.
Attendant Circumstance: a condition that must be present, in addition to the prohibited conduct or
result, to constitute the crime. [Burglary (the “at night”) element] part of actus reus of the offense
• It is not something anyone causes. It is a circumstance.
• A condition the prosecutor must prove in addition to the prohibited conduct or result
• Selling liquor to a minor. Intoxicated. “Drive an automobile while intoxicated.” Automobile is
also attendant circumstance.
• May be a result of action taken in the past but must be present in order for the crime to occur –
like drinking
Specific Intent Crimes: If you are accused of a specific intent crime, the prosecution must prove that
when you committed the crime you had the requisite intent or mens rea. This intent (mens rea) will be
listed in the statute that defines the crime. If you didn't act with this intent or mens rea, then you
cannot be convicted of the crime. – Elemental approach
General Intent Crimes: A general intent crime only requires that you intend to perform the act. That
is, you don't need any additional intention or mens rea. For example, assault is usually a general intent
crime. You only need to intend your actions, not any particular result. Morally blameworthy for
actions. – culpability approach
▪ MUST PROVE
▪ THAT THE D has a conscious objective or
▪ that the d was consciously aware
▪ to bring about the social harm of the offense
3. MENS REA
Mens Rea: Mental state of actor at time he committed the actus reus.
Rationale for the mens rea: you have to prove state of mind because you don’t want to punish
people for things not intentional [retributivist]…
- utilitarian – hard to deter someone who never meant to do it.
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Two Uses of the Mens Rea:
(1) Culpability Meaning: the person who committed the act has some morally blameworthy state
of mind. Broad view of mens rea, “guilty mind” (general intent crimes).
- An individual will be found guilty for any criminal act that he committed while having any
morally culpable or blameworthy state of mind.
(2) Elemental Meaning: the person who committed the act has the particular state of mind,
specified in the offense, or towards the social harm. (specific intent crime) More narrow
view. Mental state is specified in definition of the charged crime. This is the MPC
approach.
-An individual is not guilty of an offense, even if he had a guilty state of mind, where the
individual’s state of mind does not match the mental state specified in the definition of the charged
crime.
Mens Rea
I (Intentionally) Know (Knowingly) What (Willfully) Ninjas (Negligently) Really
(Recklessly) Mean (Malice)
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refers to attendant circumstances
● Knowledge that the requisite legal circumstances exist (same as purpose)
-Established if “a person is aware of a high probability of [the attendant circumstance’s]
existence, unless he actually believes that it does not exist.”
▪ Like recklessness, look to the substantiality of the risk and the justification for it,
and judge the conduct by the standard of care that would be exercised by a
reasonable person. Subjectively unaware. [Not aware of a substantial and
unjustifiable risk]
o Diff between negligence and recklessness – recklessness is conscious awareness of the risk, with
negligence, you do not have to show awareness, you just have to show they SHOULD have
known. It is the least culpable
HYPOTHETICAL -
• Bill wants to kill Margene but she is holding a baby. He wants the baby to survive.
o Bill's intention to Margene is purposefully and his intention to the baby is knowingly
o You will need to infer from the circumstances as to what their intent is
• Statutory Interpretation
o What if a statute is silent as to a material element? - i.e. mens rea
▪ The first three are sufficient but negligence to show the mens rea element
▪ If a statute says recklessness but you prove knowledge or purpose then YOU ARE
GOOD
▪ At the very least when silent, you need to show recklessness
o What if the statute prescribes culpability sufficient for offense, but doesn't distinguish among
material elements?
▪ The culpability provision applies to all material elements UNLESS a contrary intent
plainly appears
STRICT LIABILITY
A crime that does not contain a mens rea requirement regarding one or more elements of the actus reus.
This applies to more regulatory/civil offenses like traffic tickets.
In strict liability, your mens rea does not matter
Typically, an element that does not require a mens era element is the attendant circumstance
If there is no mens rea element, you cannot have mistake of fact or mistake of law bc they are liable either way
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What Courts Look At to Consider Strict Liability
1. The statutory crime is not derived from common law
2. There is an evident legislative policy that would be undermined by a mens rea
requirement
3. The standard imposed by the statute is reasonable and adherence is to be
expected of a person (presume notice)
4. The penalty for violation is not severe. ** Majority draws on this
5. Conviction does not “gravely besmirch” – stigma
Can often look at the lang of the statute and if there are mens rea elements to certain parts and not to other parts of attendant
circumstances, then probably intended strict liability
Case with the retarded boy who had sex with someone. They did not look at his mental culpability bc it was strict liability
and mens rea does not matter.
EX: Statutory rape crimes are a common and controversial strict liability
Mistake of Fact: occurs when a ∆ is unaware of, or mistaken about, a fact pertaining to
an element of the offense.
- Treats as mens rea element
Common Law
1. Specific intent Crimes:
a. Rule: a ∆ is not guilty of an offense if his mistake of fact negates the
specific intent portion of the crime; if it negates the mens rea
requirement. [You DON’T have to show reasonableness].
b. Common law does not care if the mistake is reasonable or not.
▪ Forcible rape is general intent – what if there is a mistake of consent. Consent is an attendant
circumstance of rape
▪ There is no intent stated and it is not strict liability so you may look at MPC standard of intent and
the minimum of recklessness – substantial risk
▪ But what if no MPC approach
▪ LOOK AT THE REASONABLENESS OF THE MISTAKE
▪ This is diff from the recklessness standard bc that requires awareness – as a
defendant you would want the reckless standard instead
• If shot a deer, thinking it was a human, you have a mistake of fact. You intended to kill a deer, but did
NOT intend to kill a human. (Negates the mens rea.)
•
• In both, mistake of fact has to be in good faith. If specific intent it doesn’t matter if it is wildly
unreasonable to think that (as long as it was in good faith)
•
• If general intent, then there has to be reasonable. Rape is general intent crime.
• Ex: Common law rape
• Mistake of fact determined reasonable by judge/jury
MPC Approach
1. Does away with the difference between general intent and specific intent
offenses – USES ELEMENTAL APPROACH
2. Most crimes are specific intent minus a few strict liability
a. Unless stated, requires knowingly, purposely, or recklessly
3. No showing of reasonableness is required
a. MPC Rule: no guilt if in good faith
A defense if MOF negatives mens rea required to establish a material element of the offense, OR
The law provides that a state of mind established by the MOF constitutes a defense
But MOF defense NOT available if the D would be guilty of another offense had the situation been as he supposed.
But the MOF then reduces the grade of the offense to what he would have been guilty of had the situation been what
he thought it was
MISTAKE OF LAW
4. CAUSATION 2.03
*Usually only present in result crimes
- If it is a conduct crime, DO NOT WORRY ABOUT CAUSATION, bc there is no result
involved.
- Diff from torts bc Criminally accused have more at stake so a closer link required between conduct and resulting harm. Diff
goals and implications for the actor
ACTUAL CAUSE
MPC 2.03
• Actual cause – cause is an antecedent but for which the result is question would not have occurred
• No need for substantial factor test in cases of concurrent sufficient causes
o MPC TEST What matters is whether result would have occurred when and as it did
• Proximate cause – MPC treats matters of PC as relating to actor's culpability
• Deciding whether an intervening cause rises to superseding cause, you must judge the quality of the
intervening cause
o MPC TEST – say all the issues boil down to is mens rea
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▪ Requisite culpability lacking unless the result, including the way in which it occurred was
“NOT TOO REMOTE OR ACCIDENTAL to have a just bearing on the actor's liability
or on the gravity of the offense”
Concurrence Of The Elements: The defendant must possess the requisite the mens rea during the commission of the
actus rea. Motive is not an element of the crime, but it can be used as an evidentiary tool
a. Temporal Concurrence: The defendant must possess the requisite mens rea at the same moment that her
voluntary conduct causes the social harm
b. Motivational Concurrence: The defendant’s conduct that causes the social harm must have been set into
motion or impelled by the thought process that constituted the mens rea of the offense
i. Ex. person who accidentally kills someone and later says they’re glad they did it.
CRIMES
Murder 1 Murder 2 Manslaughter Criminal Negligent
Homicide
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○ Murder committed in some statutorily-specified manner
○ Any “willful, deliberate, and premeditated” killing
○ Any homicide that occurs during the commission of
certain other felonies (felony murder)
■ Some jurisdictions will use felony murder
● Second degree murder:
○ All other forms of murder:
■ Intentional killings not
willful/deliberate/premeditated
■ Intent to inflict grievous bodily harm killings
■ “Depraved Heart” killings
■ Felony Murder (some jurisdictions)
○ Manslaughter: killing of a human being by another human being w/out malice
aforethought
■ Voluntary manslaughter: heat of passion killings
● Heat of passion killings
○ Partial Defense:
■ in the absence of this partial defense, voluntary
manslaughter cases would all be charged as
second degree murder.
■ intent to kill can be found
● Common Law – Provocation mitigates the offense to voluntary
manslaughter if:
○ 1. Must be adequate provocation at the moment of the
homicide
○ 2. The actor must have acted in the heat of passion
○ 3. Defendant must not have had a reasonable
opportunity to cool off between provocation and killing
○ 4. there must be a causal link between the provocation,
the passion, and the homicide
● Standard for “adequate provocation”
○ Must be calculated to inflame the passion of a
reasonable man and tend to cause him to act for the
moment from passion rather than reason
○ Words alone cannot be legally adequate provocation
unless they are accompanied by conduct indicating a
present intention and ability to cause the defendant
bodily harm –
○ where words are recognized as potentially adequate
provocation are INFORMATIONAL WORDS as
opposed to insulting words - I slept with your wife v.
your mama is a hoe
○ MODERN VIEW OF PROVOCATION
○ Shifting away from rigid categories to case specific jury
questions: Provocation is sufficient to cause an ordinary
man to lose control of his actions and his reason”
○ Mutual combat can suffice, aggravated battery.
Provocation test:
1. Subjective element is actual inflamed passions
2. Objective element is reasonableness of the emotional reaction
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● Question is not whether it was reasonable to kill but look at whether it was reasonable to be
THAT upset.
■ WHO IS ORDINARY?
■ Average disposition
■ Sober at time of provocation
■ Normal mental capacity
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● Deliberate – with a view to make a choice. to reflect. Quality of thought
● Premeditate – thinking of a plan to execute what you just deliberated. Quantity of
thought. Formed a plan in his mind
● theoretically you can have premeditation without deliberation but this is rare
Deliberation and premeditation may be inferred from actions
● Any interval of time between the forming of the intent to kill and the execution of that
intent, which is of sufficient duration for the accused to be fully conscious of what he
intended, is sufficient to support a conviction for first degree murder
Midgett v. State - case with the child abuse. Says there was insufficient evidence of premeditation and
deliberation bc the intent was to just further the abuse, not to necessarily kill. Was actually second degree
murder
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State v Forest - case with the killing of his father in the hospital. Judge looked at Among the circumstances
to be considered to determine whether the Defendant acted with premeditation and deliberation
required for first-degree murder are:
(1) lack of provocation by the victim
(2) ; (2) conduct and statements of the defendant before and after the killing;
(3) (3) threats and declarations of the defendant before and during the killing;
(4) (4) ill-will between the parties;
(5) (5) the dealing of lethal blows after the victim was rendered helpless; and
(6) (6) evidence of the killing being done in a brutal manner.
- Looked at the fact that he only carried a gun at work and didn’t work that day, he
cocked the gun back four times, his statements after saying he wanted to put his
father out of misery.
■ Involuntary manslaughter:
● Unintentional killings that result from an act, lawful in itself but
done in an unlawful manner, and w/out due caution
● Unintentional killings that occurs during the commission of
some unlawful act not a felony (“misdemeanor manslaughter”)
○ MPC
● A person is guilty of criminal homicide if, w/out excuse or justification she takes the life of
another human being purposely, knowingly, recklessly, or negligently
○ (Prisoners Knit Really Nice.)
● Three Forms of Criminal Homicide:
○ Murder
■ Killing another person w/out excuse or justification:
● Purposely or knowingly
● Recklessly, under circumstances manifesting “extreme indifference to
the value of human life” AKA extreme recklessness
■ Murder differs from common law: no degrees; abandons language of malice
aforethought
○ Manslaughter
■ an unlawful killing of a human being by another human being without malice
aforethought.
■ Intentional killing done with provocation or heat of passion
● Voluntary Manslaughter
○ Extreme Mental or Emotional Disturbance
■ Criminal homicide constitutes manslaughter when
● 1. A homicide which would otherwise be murder
is committed under the influence of EED for
which there is reasonable explanation or excuse.
● Standard of reasonableness: The reasonableness
of such explanation or excuse shall be determine
from the viewpoint of a person in the actor’s
situation under the circumstances as he believes
them to be
● 1. ask whether they acted under EED – THIS IS
WHOLLY SUBJECTIVE
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● 2. Was there a reasonable explanation for that
EED? – This is a jury question of fact and there
is an objective aspect to it
● Manslaughter if the D acted while sffering from
EMED for which there is a reasonable
explanation of excuse
PROVOCATION V. EEED
○ Negligent homicide
● UNINTENTIONAL KILLINGS:
○ Unjustified Risk-Taking
COMMON LAW
Factor #1 Degree Factor #2: Factor #3: Mens Rea Liability
of Risk Justification for Awareness of risk
risk
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High degree of risk Unjustifiable Aware (“conscious Recklessness Murder (2nd degree,
of serious bodily disregard”) (“depraved heart,” where
injury or death to “Abandoned and distinguished)
another person malignant heart,”
“extreme
recklessness”)
• In order to distinguish between ordinary recklessness and extreme you must look at how great the risk and how
unjustifiable the risk was. A person going 90 in a school zone while texting is extreme.
• Implied malice – when the killing is not intentional but it is still malice. Stat definition requires a killing by one
with an abandoned and malignant heart
• STANDARD: Malice is implied when the killing is proximately caused by an act, the natural consequences of
which are dangerous to life, which act was deliberately perform by a person who knows his conduct endangers the
life of another and who acts with conscious disregard for life
o Must focus on the D’s awareness of the risk created by his or her behavior
o Implied malice require’s d awareness of the risk
o Involves a high degree of probability that it will result in death
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• MPC says crim. Neg. homicide is just like involuntary manslaughter but you do not need to prove an awareness of
the risk
o This can come up when parents do not take their kid to hospital. Based on an omission. This is a duty case
• MPC 2.10-2-1-B – Crim homicide constitutes murder when it is committed recklessly under
circumstances manifesting extreme indifferent to value of human life
• The indiff is presumed if the actor is engaging in a felony, MPC is not exactly strict liability bc
you have to show the extreme recklessness but again, it is presumed, the jury does not have to
actually accept the recklessness and indifference
• Why have the felony murder rule at all?
o Deterrence – careful when committing a felony. Kind of instructs robbers to use
caution when committing a felony to avoid someone dying so they are not on the
hook for felony murder – best argument.
▪ Deterrence is also kind of silly bc people aren't really thinking in these
situations
o Transferred intent – felons intent to commit a felony transfers to more serious
social harm of homicide
o Easing prosecutor's burden of proof – Use FM doctrine to avoid having to prove
mens rea even when there was malice
o Sanctity of human life – commission of a felony involving death is more serious.
Showing that there is a diff between felony with no death and a felony with death
so they are arguing
• Once you have proven the predicate felony, it is strict liability for the homicide
o Must check jnx to see if it would be first or second degree
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• MPC says it is not exactly strict liability, there is a presumption of extreme recklessness
but the jury does not need to accept this
BASIC RULE: unless it is listed in the statute, for it to be predicate felony, it has to be inherently
dangerous BUT it cannot merge with the homicide
- Meth lab example – Dangerous and does not merge with homicide
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- If you shoot someone, aggravated batt with firearm but there is no independent felonious design
- If it merges, no felony murder
- If it isn’t inherently dang, no felony murder
Rape
● Common Law
○ The carnal knowledge of a woman, forcibly and against her will
○ Actus Reus
■ Conduct: vaginal intercourse
■ Attendant Circumstances:
● Force: Actual or threat of serious bodily harm
● Non-consent
● Resistance requirement:
○ Proxy for force and non-consent given evidentiary challenges.
○ Evidence must warrant a conclusion either that the victim resisted and
her resistance was overcome by force OR that she was prevented from
resisting by threats to her safety. --> Focus is on the victim
■ Used as a tool for the court to determine whether there was force
or non-consent.
STATE V ALSON - bf and gf in an abusive relationship. There was a requirement of force. Said there was none. Gen fear of him is
not sufficient and their abusive past is independent. Him grabbing her arm or saying he will fix her face had nothing to do with him
trying to have sex with her. The statute said “by force AND against the victim’s will”
RUSK V. STATE – they met at the bar, Took her keys, had sex. Stat required by force or threat of force, against the will, and without
consent. Must show the victim resisted and was overcome by force or prevented resistance bc of REASONABLE fear. Argue that
there can be no force unless there is resistance. In order to show force, you need to show resistance. Lower court defined resistance
physical. They look at the victims mind to see if she consented or not. Court of appeals said the reasonableness of the victims
apprehension is a question of fact for the jury
○ Mens Rea
■ If none stated, therefore a general intent crime. Can show recklessness, would be a
conscious disregard of a substantial risk that the person did not consent
■ Morally blameworthy state of mind
○ Critical questions:
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■ Why does proof of this crime focus on the victim’s response?
■ What if victim’s response is passivity/numbing/freezing rather than resistance
■ What if resistance increases risk of harm?
■ Why require force at all? Isn’t nonconsent enough?
COMMONWEALTH V BERKOWITZ
• The dorm rape case. Required sexual intercourse by forcible compulsion. State argued that any forced used to
complete the act was forcible compulsion but the court said the leg. Did not criminalize nonconsensual
intercourse therefore the evidence of force was insufficient to support the conviction
• There is not a requirement of resistance but there is a requirement of forcible compulsion
• they look at factors such as age, mental and physical conditions, atmosphere and setting, whether in
position of authority, whether victim was under duress etc.
• evidence of verbal resistance is only sufficient when coupled with forcible compulsion or coercion or actual
physical violence
• Forcible compulsion is much broader than just physical force
• Under this, resistance was not a determinative issue, it is just a factor to consider
• Forcible compulsion
o not only physical force but also moral, psychological, or intellectual force used to compel a
person to engage in sex against that person's will or by threat of such forcible compulsion that
would prevent resistance by a person of reasonable resolution
o person of reasonable resolution -
▪ must look at the totality of circumstances for each case
MTS
• Case with living at the home and consented to heavy petting.
o What does statute require?
▪ sexual penetration with another person with the use of physical force or coercion – covers
it more broadly. covers certain types of actus reus like oral sex and victims like men
o ISSUE : whether the element of physical force is met simply by an act of non consensual
penetration involving no more force than necessary to accomplish that result
• They are saying the absence of no is not consent, YOU MUST SAY YES …they shift and go towards the absence
of a yes is no consent.
• They say if there is no consent, then force is implicit. They change the question of force into a question of
consent.
o if the D applies any amount of force against a person in the absence of what a reasonable person
would believe to be affirmative and freely-given permission to the act of sexual penetration
• What did the court hold?
o Permission must be affirmative and freely given
o Physical force in excess of that inherent in the act of sexual penetration is not required
Hypo – test drive a car. Dealer comes with but I am driving. Dealer has constructive possession and I have
custody. He gets out and I drive away, that is a nonconsensual taking of possession, it Is larceny
But what about if they let you drive it on your own and you just drive off, you took possession and later formed
intent to take it
• Who has possession – it would be consensual possession
• There is no bailee/employee relationship
• The possessor has limited and temporary authorization BUT....the right to use it is not substantially
restricted by the dealer in constructive possession (comes from the definition of custody) so it is
possession and not custody
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• The possession was transferred consensually so it is not larceny
● Embezzlement – entrusted with something, given possession consensually and converted to own use
○ First statute that allowed a person who had lawful possession
■ Receive property from 3rd party for their employer, instead of delivering the item, they steal it.
■ Eventually Embezzlement was extended not only to apply to employer/employee relationship.
○ The fraudulent conversion of personal property over which one has lawful possession with the intent to
defraud
■ [AR] Lawful possession
■ [AR] Fraudulent conversion
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■ [AR] Entrustment (often, but not always)
■ [MR] Intent to defraud at time of conversion
● G to C, at this point G still has possession bc C is acting as an employee. G has constructive
possession and C has custody
● C hands the money to B, an employee of the bank. Possession goes from G to B
○ But B is an employee, just like C
○ The difference is B never gave his employer the possession
○ B put the note in his pocket so the employers never had any type of
control over it
○ The court could have just said that bc B was acting in capacity as an
employee, bank had possession BUT THEY DID NOT
○ B never lied to the servant about anything, there is no trickery
○ the passing of the note from C to B was consensual
○ therefore, no trespassory taking and it cannot be larceny
○ If he put it in the bank drawer and then took it, it would be larceny
● False Pretenses
○ Knowingly and designedly obtaining title to the property of another by means of the untrue
representations of fact with intent to defraud.
● Elements
○ 1. False representation (this can be implied)
○ 2. That representation was made with the intent to defraud the owner of
his property
○ 3. That the owner was in fact defrauded in that he parted with his
property in reliance upon the representation – does not need to be the only thing they rely on
○ Nondisclosure is not enough to create a false representation, unless there is a duty to disclose.
○ The act of fraud is allowing you to obtain title, this is not true with Larceny by trick
○ Larceny by trick is when D obtains possession of but not title to another’s property by fraud or trickery
○ False rep occurs when obtain BOTH possession AND title to property
○ The misrepresentation must point to an ACT unless there is a statute saying there is a duty to act with
misrepsentation
○ Work through problems on 927, answers on TWEN.
● Stages of a Crime:
○ Stage 1: Conceiving the idea of committing a crime
○ Stage 2: Evaluating the idea
○ Stage 3 (Mens Rea): Forming intention to go forward with crime.
○ Stage 4 (Actus Reus): Preparing to commit the crime
○ Stage 5 (Perpetration) Commencing w/ commission of crime
○ Stage 6: Completing the Crime
■ Stages 4, 5, and 6 are Inchoate Crime
■ Most jurisdictions require 4 & 5Aa
● Attempt
○ occurs when a person with the intent to commit an offense performs some substantial step towards
carrying out that intent
● Incomplete Attempt
○ Defendant does some of the acts necessary to achieve the criminal goal, but quits
or is prevented from moving forward before taking the final acts to complete the
crime
● Complete Attempt
○ Defendant performs all the acts that she set out to do to commit the crime, but
fails to attain the criminal goal.
● Attempt instruction requires intent to commit offense of BUT murder instruction included
alternative mental states – besides intent to cause death
○ so the jury is getting these instructions that D argues they are
inconsistent
○ He argues they are inconsistent
○ Appellate court says it requires intent to cause result – they agree
○ the lesser mental states (that would suffice for murder) don't cut it for
attempted murder
○ They would suffice for murder but not attempted – like causing great
bodily harm
○ Attempted murder is a specific intent crime – how can you be charged
with murder if you were not trying to kill anyone
○ Murder is a general intent – 3 types of mind sets BUT
■ Cannot have extreme recklessness in attempted
murder
■ this is with the result crimes
○ Imagine – driving drunk, cause accident, and caused accident – probably
manslaughter
■ but if you get pulled over before, you cannot be
charged with “attempted manslaughter”
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Abandonment – Relevant only after actor has crossed the line from prep to perp
Must completely and voluntarily renounce crim purpose. Cannot stop while cop is watching
● Solicitation
○ Occurs when a person invites, requests, commands, hired, or encourages another to engage in conduct
constituting any felony or a misdemeanor relating to obstruction of justice or breach of peace, with the
intent that the other person commit the solicited crime
○ Solicitation is attempted conspiracy
■ The offense of solicitation is complete when the solicitation is made or advice is given with the
specific wrongful intent to influence another or others to commit the offense
● It is not necessary that the person or persons solicited or advised agree to or act upon the
solicitation or advice
○ When the person solicited agrees to participate in a concerted action w/ the person soliciting to commit a
crime, then CONSPIRACY is formed
■ When an overt act is committed by any of the persons involved, the crime of conspiracy is
complete
○ Under MPC solicitation applies to any crime
○ Actus Reus:
■ invite/request/command/hire/encourage another person to carry out a target crime
○ Mens Rea:
■ Must intend to invite/request/command/hire/encourage (most controversial)
■ Must intend to have act carried out
○ MPC 5.02
■ A person is guilty of solicitation to commit a crime if with the purpose of promoting or
facilitating its commission he commands, encourages, or requests another person to engage in
specific conduct that would constitute such crime or an attempt to commit such crime or which
would establish his complicity in its commission or attempted commission
● Punishment is same as the target crime
● Expressed defenses under the MPC
· o Conspiracy
○ An agreement between two or more persons to commit a criminal act or to accomplish a legal act by
unlawful means (+ an overt act)
■ Actus Reus:
● An agreement to commit an unlawful act, or series of acts. (+, in some jurisdictions, an
overt act)
● The agreement can be implied; it need not be express. When implied, can be established
through circumstantial evidence of a mutual understanding.
● The parties to an agreement do not need knowledge of all the details; they only need to be
aware of its essential nature
● Where an overt act is required, any act is sufficient no matter how minor, if in pursuance
of the conspiracy.
■ Mens Rea DUAL REQUIREMENT
● Intend to agree, or conspire AND
● The intent to commit the offense, which is the object of the conspiracy
■ Conspiracy is the Stage 4 of the crime (Preparing to commit the crime)
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■ Under the Common Law there is no MERGER RULE for Conspiracy. You can be found guilty of
the crime and conspiracy to commit the crime.
■ Punishment
● Early Common Law
○ Misdemeanor
● Today
○ Punished more than a misdemeanor
■ MPC Differences 5.03
● A person is guilty of conspiracy with another person or persons to commit a crime if with
the purpose of promoting or facilitating its commission he:
○ Agrees with such other person or person that they or one or more of them will
engage in conduct which constitutes such crime or an attempt or solicitation to
commit such crime, OR
○ Agrees to aid such other person or persons in the planning or commission of such
crime or of an attempt or solicitation to commit such crime.
● Requires an overt act (except for a felony of 1st or 2nd degree)
● Punishment same or conspiracy as target crime (unless target crime is 1st degree felony--
punishment is 2nd degree)
● Merger rule applies
○ Cannot be convicted of target offense and conspiracy
● Agreement only to criminal act (not lawful act)
■ Pinkerton Doctrine (conspiratorial liability)
● Where a conspiracy forms and the substantive offense (target crime) is committed by one
of the conspirators in furtherance of the conspiracy, and is reasonably foreseen as a
necessary or natural consequence of the unlawful agreement, the other conspirators will
be guilty for the substance offense. (MPC rejects)
○ Two Types of Conspiracies
■ Bilateral v. Unilateral
● Bilateral:
○ Two parties agree to conspire
● Unilateral
○ one party agrees to conspire, but the other party only faintly agrees
■ Earlier version:
● If any two or more persons conspire or agree together to do any illegal act they shall be
deemed guilty of a conspiracy.
■ Amended version:
● A person commits conspiracy when, with intent that an offense be committed, he agrees
w/another to the commission of that offense
○ Defenses for Conspiracy
■ Impossibility
■ Abandonment
■ Wharton’s Rule
● An agreement by two persons to commit an offense that by definition requires the
voluntary concerted criminal participated of two persons, cannot be prosecuted as a
conspiracy UNDER THE COMMON LAW.
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○ MPC rejects this.
● Two exceptions:
○ 3rd Party Exception:
■ If more than the minimum number of people necessary to commit the
offense agree to do so
○ If two persons involved in the conspiracy are not the two people involved in
committing the target offense.
● Accomplice Liability
○ Definition
■ A person is guilty as an accomplice in the commission of an offense is she intentionally assists*
another person to engage in the conduct that constitutes the crime.
■ Charged with the same crime as a principle actor.
○ Idea behind accomplice liability was vicarious liability you would be responsible because of your
relationship to the person. (ex: family or married, mere status or relationship) not enough for liability
○ Derivative liability: person is being held liable for another persons act but you have also taken an act
○ Generally the accomplice can be held liable for any offense that the principle actor did if they had the
intent to help.
○ The elements
■ Actors
● Principle in the First degree
○ person who physically commits the crime
● Principle in the Second degree
○ this person is helping during the actual commission of the crime.
○ A person who intentionally assisted in the commission of the crime in the
presence, either actual or constructive, of the principle in the first degree.
● Accessory Before the Fact
○ providing assistance but not present during the commission of the crime
○ a person who intentionally assisted in the commission of the crime, but who is
not actually or constructively present when the crime is committed. This person
often counsels or commands the principal in the first degree re. the crime.
● Accessory After the Fact
○ A person who helps the felony escape or hinders their capture.
○ A person who, with knowledge of another’s guilt, intentionally assists the felon
to avoid arrest, trial, or conviction
○ separate and lesser offense.
○ Actus Reus
■ Give assistance or encouragement to the crime of another, or fail to perform a legal duty to
prevent it.
○ Mens Rea -- dual intent
■ intent to assist the primary party to engage in the conduct that forms the basis of the offense.
Typically: (1) assistance by physical conduct; (2) assistance by psychological influence; (3)
assistance by omission (when the person has a legal duty to act)
■ The mental state required for the commission of the offense as defined for the substantive crime.
○ In most cases an accomplice is also a conspirator
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■ Basis for a Conspirator is the agreement to carry out act, but assistance is not required.
■ Accomplice liability requires proof of existence, but agreement to do so is not necessary.
○ MPC 2.06. Liability for Conduct of another; Complicity
■ A person is an accomplice of another person in the commission of an offense if:
● with the purpose of promoting or facilitating the commission of the offense, he:
○ solicits such other person to commit it; or:
○ aids or agrees or *attempts to aid* such other person in planning or committing
it.
■ common law does not recognize attempting to assist.
○ Men's rea
■ Intent: knowledge v. purpose
● Case law is mixed
● Majority rule: person is not an accomplice unless def shares the criminal intent of the
primary party.
● Knowledge is not enough, common law and MPC Agree
● Principle in the first degree is on liability when they intend with purpose and the
accomplice intends the same
■ Liability for crimes of recklessness and negligence (Riley)
● Riley v. State: two people show up and shoot guns recklessly into a group and no one is
killed but a few are injured. Prosecution can't decide who shot the gun that injured
people, so they charge them both with first degree assault as the principal or the same as a
theory under accomplice liability.
● Could Riley be held as an accomplice to s crime that had the men's rea of negligence or
recklessness?
● MPC on a accomplice liability
○ MPC 2.06
■ When causin a particular result is an element of an offense, an
accomplice in the conduct causing such result is an accomplice in the
commission of that offense, if he acts with the kind of culpability of any
with reposed r to that result that is sufficient for the commission of the
offense
■ To satisfy second of dual mens rea requirements has to match the same
mens rea as the principal actor.
● MR1: intent to assist the primary party to engage in the conduct
that forms the basis of the offense
● MR2: the mental state -- intent, recklessness, or negligence, as
the case may be -- required for the commission of the offense as
defined for the substantive crime.
■ Natural and probable consequences doctrine
● This doctrine e is found in the common law and most jurisdictions today (rejected by
MPC)
● It says that an accomplice to a crime may be held criminally liable not only for the target
crime, but for any other offense that was a natural and probable consequence of the target
crime.
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○ We're substantive offenses reasonably foreseeable when conducting the target
crime.
● A crime is a natural and probable consequence if it was a reasonably foreseeable
consequence
● The accomplice need not share the principal's mental state for the crime under this
doctrine
○ Actus rea
■ Mere presence (VT)
● What if you're just there when someone commits a crime?
● VT CASE
○ VT's his friends, had stolen guns and camcorder and sells the camcorder to a
pawnshop. Vt was present for the takings, the boys accidentally recorded a
conversation about Stealing.
○ "Passive behavior, such as mere presence-- even continuous presence-- absent
evidence that the def. affirmatively did something is not enough for accomplice
liability
■ Accomplice liability and trivial assistance (Wilcox; Helmenstein)
● Wilcox v. Jeffrey
○ Wilcox is charged as an accomplice to an illegal jazz performance, because he
met him at the airport and applauded the illegal show, and encouraged and
assisted. The court found this was enough.
● Some sort of duty to act for most bartenders.
■ Causation
● A person is not an accomplice unless her conduct in fact assists in the commission of the
offense.
○ However Under MPC attempting to assist is still encouraging.
● Once a fact finder determined that the defendant assisted, the degree of aid or assistance
is immaterial- even a trivial amount is sufficient
● An accomplice is liable even If her assistance is causally unnecessary to the commission
of the offense.
■ Attempting to aid (Genoa)
Defenses
● A set of conditions which, if proven, prevent conviction or result in conviction for a lesser offense.
○ Total Defense: Acquittal (or no conviction in first place) (i.e., self-defense)
○ Partial Defense: Conviction for a lesser offense (i.e., heat of passion--voluntary manslaughter)
● Overview of Defenses
○ Negative Defense (Failure of Proof Defense)
■ Fails to establish one of the elements of the crime beyond a reasonable doubt
■ Elements not satisfied, therefore not culpable
■ Traditional defenses → affirmative defenses
● Actus reus + mens rea - conviction for crime (NOPE)
● Assumes we have satisfied BRD the AR and MR of the crime.
○ Affirmative Defenses
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■ Justification – gov’t carries burden of proof
● A set of conditions which prevent convictions because the otherwise criminal act was the
right or permissible action in this instance
● Focuses on the situation. The social harm has been negated.
● Reflects society’s judgment that certain conduct is tolerable and desirable
● Normally frowned upon but under these circumstances, you did the right thing.
● Ex. Necessity defense.
■ Excuses – D carries burden of proof
● A set of conditions which prevent convictions because the actor, while committing an
otherwise criminal act, is not morally blameworthy
○ Excuses are focused on the actor
○ Where society considers it morally unjust to punish and stigmatize wrongdoers
○ Self defense is usually a justification but is sometimes an excuse
○ Ex. Where a child had the gun and the adult shot them or Halloween where there
is a cop and someone points a gun and officer shoots them
● Self-Defense
○ Definition:
■ A non-aggressor is justified in using force upon another if she reasonably believes such force is
necessary to protect herself from imminent use of unlawful force by the other person.
■ Deadly force is only justified in self protection if the actor reasonably believes that its use is
necessary to prevent imminent and unlawful use of deadly force by the aggressor
■ You cannot defend yourself against unlawful conduct YOU started
○ Necessity Component
■ Force should not be used against another person unless, and only to the extent that, it is necessary
■ Common Law Elements
● (1) clear and imminent danger
● (2) reasonable belief that action will abate the danger
● (3) no adequate alternative
● (4) harm caused not disproportionate to harm avoided AND;
● (5) none of the following apply--Defendant did not cause danger; defense not limited to
naturally-caused emergencies; legislature not balanced harms otherwise; and no
exemption for homicides
● 1. The act charged must have been done to prevent a significant evil
● 2. There must have been no adequate alternative
● 3. The harm caused must not have been disproportionate to the harm avoided
● Harm must be GREATER than than the evil or harm sought to be avoided
○ This is left to the jury
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■ MPC
● Broader in 3 ways:
○ (1) no imminence requirement;
○ (2) no automatic loss of defense b/c of fault;
○ (3) not limited to emergencies from natural causes (as in some states under
common law)
■ Corollary #1: Imminence Rule
● Use of force in self defense is permissible only where the threat of force is about to be
realized in time (moments away)
○ it is so imminent there is no chance at any other kind of self help.
○ proxy for necessity, if harm is imminent it is more likely to be necessary.
■ Corollary #2: Provocation Rule
● The right to use deadly force in self-defense is not available to someone who provokes a
conflict or is the aggressor in it, unless the defendant first withdraws from the conflict in
good faith and informs the other parties to the conflict of that withdrawal by words or
acts
■ Corollary #3: Retreat Rule and (Castle Doctrine)
● A person cannot invoke the doctrine of self-defense where that person had some means to
safely retreat and avoid the harm. (Most states don’t follow this rule)
○ Most states follow the Stand your Ground statutes
○ Exception:
■ Castle Doctrine
● A non-aggressor (victim) is not ordinarily required to retreat
from his dwelling even though he knows she can do so in
complete safety before using deadly force in self-defense.
■ when to use force
■ no duty to retreat under the castle doctrine with the idea that if someone comes into “your castle” you do not have to
retreat, and you stand your ground.
○ Proportionality Component
■ A person is not justified in using force that is excessive in relation to the harm threatened.
■ How much force you can use
● Non-deadly force/threat:
○ Non-deadly force (never deadly force even if only way to prevent harm)
● Deadly force/threat
○ Non-deadly or deadly force
● Defense of property:
○ A person may use non-deadly force against a would be dispossessor if she
reasonably believes such force is necessary to prevent imminent, unlawful
dispossession of property
● Defense of Habitation (house):
○ A person may use deadly force is she reasonably believes such force is necessary
to prevent an imminent and unlawful entry of her dwelling
○ Reasonable Belief
■ Subjective prong: person must believe that she needed to use (deadly) force to repel
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■ Objective prong: person’s belief must be one a reasonable person in the same situation would
have possessed.
● Defense of Others
○ Available on behalf of any third party
○ Generally applies where third party could have claimed defense OR
○ where third party would apparently been justified in using force in self-defense.
○ Applies only to unlawful conduct, so abortion would not count
Excuses
● Duress
○ Common Law
■ (1) An immediate (imminent) threat of death or serious bodily injury;
■ (2) A well-grounded fear that the threat will be carried out;
■ (3) No reasonable opportunity to escape the threatened harm;
■ (4) Defendant not at fault for creating situation
○ MPC
■ General Rule: Durres is an affirmative defense if:
● Defendant was compelled to commit the offense by the use or threatened use of unlawful
force by the coercer upon defendant of another person OR:
● A person of reasonable firmness in defendant’s situation would have been unable to
resist.
○ This definition is broader
○ No mention of imminent or immediate threat
○ No Denial of the defense in the case of homicide
● MPC and how it treats the duress
○ Can be something less than death or serious injury
○ Has idea of personal reasonableness
○ it does not preclude duress as a defense to murder
○ In common law, it has to be immediate
○ MPC does not like categorical crimes for this
○ Says it is a jury question
○ Similarity to CL is that dealing with threat from human sources
● The person who duressed them is guilty of that offense through the innocent instrument
●
● Intoxication
○ Introduction
■ The disturbance of mental or physical capacities resulting from the introduction of any substance
into the body whether voluntarily or involuntarily.
● Defense:
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○Failure of Proof
■ Negate Mens Rea
■ Negate AR (volition)
○ Traditional Common Law Rules
■ Voluntary intoxication is never an excuse, but it can serve as a failure of proof defense if, as a
result of intoxication, the defendant did not have requisite mens rea as required in a specific intent
crime. EX. When a college kid goes to a house thinking it was someone else’s house
○ Evolution
■ Intoxication is NOT an affirmative defense
○ State approaches:
■ (1) Freely allows intoxication to negate mens rea
■ (2) No evidence of intoxication permitted;
■ (3) Intoxication as a failure of proof defense to specific intent crimes
ASSAULT
• CL was really an attempt crime
o unlawful attempt
o coupled with present ability – this made it harder to satisfy
• must be within range
o to comment violent injury on another
• More recently includes
o placing someone in reasonable apprehension of an injury, even without intent
o intent to frighten is usually included
MPC 211.11
• Merges assault and the completed offense of battery
• applies normal attempt rules rather than strict common law requirement that the actor come closer to success
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