Criminal Law Outline (2)

8/2/2019 Criminal Law Outline (2)

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CRIMINAL LAW OUTLINEProfessor Byers

Fall 2002This outline is based on the materials from the text-book, class notes, lecture notes, and other commercial and non-commercial outlines

THIS OUTLINE IS FOR PERSONAL EDUCATIONAL USE AND NO CREDIT IS TAKEN OR INTENDED TO BE TAKEN BY THE AUTHOR OF THIS OUTLINE

I. INTRODUCTION TO CRIMINAL LAW AND CRIMINAL JUSTICE SYSTEMA. The Purposes of Punishment

1. Retributiona. Presupposes that human beings are moral, responsible, andfree to choose between good and badb. Those who then choose to harm society are punishablec. Retribution is an eye-for-an-eye theoryd. Problem arises when we consider whether all actors arereally responsible and free to choose between good and bade. Problem arises when setting sentences. If someone harmssociety, society has to harm them back under retributive theory. But how do society doso proportionally

2. Deterrencea. General deterrencei. The impact punishment has on all societyb. Special deterrencei. The impact punishment has on specific criminalsc. Problem arises because all people are not rational calculatorsand do not connect the punishment with crime and weigh the two before acting

3. Incapacitationa. The theory that when criminals are in jail, they can notcommit crimesb. Problem arises because you can not keep all criminals in jailall the time

i. Therefore, society has to decide which criminals haveto stay and which should go

4. Rehabilitationa. The theory that criminals should be rehabilitated so they willnot commit more crimesb. Problem: only works if the criminal is receptiveB. Sources and Limitations of Criminal Law

1. Common Lawa. Legislatures were not very active in early England and courtswere left the duty to adopt the law to the situations before themb. This led to the creation of courts of crimes like murder,manslaughter, rape, robber, and so on

c. Most English crimes were judicially createdd. As the legislatures meet more often, the courts defined fewerand fewer crimes until it became virtually non-existent

2. Statutory Lawa. The principle of legalityi. Replaced the crime definition powers of the court withthose of the legislaturesii. It forbids retroactive crime definitioniii. Adopted by United States

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iv. Despite its predominate use, the common law heritagestill shows itself in criminal law

Kansas has a statute stating that wherever acrime is denounced but not defined by statute then the common law definition is to beusedb. Vaguenessi. A vague statute has two problems

It fails to give notice-violates legality principle

It invites arbitrary and discriminatoryenforcementii. Statues must be vague to some degree in order towork. They have to deal with a broad range of future action. Limiting the ability of alegislature to use any vague language will limit its effectiveness

Courts have been reluctant to hold statutesunconstitutional because of vagueness when it believes that they could not workably bemade more precise

They have done this by stating that theconstitution does not require impossible standardsiii. The courts are most weary of vagueness when theyare dealing with a law limiting or affecting a guaranteed right

II. THE STRUCTURE OF CRIMINAL OFFENSES: ELEMENT OF CRIMESA. The Act Requirement (Actus Reus)

1. Voluntary Act Requirementa. In order to be held criminally liable, an actor must not only befound to commit an act but must be found to have voluntarily committed the actb. This is a hold over from common law and thus operateswithout statutory language effecting itc. Involuntary acts will dismiss any criminal liabilityd. Classes of involuntary conducti. Physically coerced movement

A pushes B, B hits C as a result of As actionii. Reflexive movements

Someone attacked by a swarm of bees acts on

reflexes aloneiii. Muscular contraction or paralysis from disease

Epilepsy or a strokeiv. Unconsciousness

Sleeping mother rolls over and kills her babye. The common denominator to these crimes is that none ofthem are directed by any conscious mental process at allf. There are some cases where the normal conscious mentalprocess in only impaired that can lead to involuntary actsi. Concussionii. Sleep walking

iii. Hypoglycemia: abnormally low blood sugar g. Involuntary acts done while doing a voluntary act may lead toa criminal sanctioni. An example: a driver that knows he is prone toepileptic seizures and drives nonetheless, is liable if he kills while driving

2. Omissionsa. A failure to act can constitute the actus reus for a crimewherei. There exist a legal duty to act

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ii. The individual is aware of the facts giving rise to theduty to actiii. The individual is capable of the acts required to fulfillthe duty, without putting herself in danger of serious bodily injury or deathb. The relationships that give rise to a duty to act can be createdbyi. Statutes

Good Samaritan rulesii. Contracts

Quasi contracts are an exampleiii. Relationships

Strongest between child and parentc. There is no general duty to rescueB. The Mental State Requirement (Mens Rea)

1. Backgrounda. Means a guilty mindb. Early criminal law did not require a guilty mind. Crimes werestrict liable situations focusing entirely on the outcome of harm

c. By the 12th century the influence of Roman and Canon law ledto a requirement of a guilty mind

d. Now the law focuses on what the purpose of the criminal is inactinge. It is believed that mens rea is not a static but a fluid conceptf. Four concepts according to MPC (only one needed)i. Purposeii. Knowledgeiii. Recklessnessiv. Negligence-usually not by itself

2. Wordinga. Many words are used in statutes to create a requirement ofmens reab. These words can be-but are not limited toi. Corruptly, willfully, maliciously, wantonly, recklessly,and fraudulentlyii. The underlying concept is an attempt to describe adegree of evil

3. Intent Categoriesa. General intenti. Requires that a criminal only intend the conduct he isdoingb. Specific intenti. Requires that a criminal not only intend the conductbut also intend a resultc. Eight specific intent crimesi. Theft crimes

Must intend to trespass on anothers property

Must intend to permanently deprive the ownerof the propertyii. Burglary

Must intend to commit the felony of theft withina structure at the time of entering the structureiii. Fraud crimes

Must intend to defraudiv. Attempt crimes

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Must intend to complete the underlying crimethat was in actuality not completedv. Assault

Must intend to cause a battery

In Kansas, must intend to cause apprehensiononlyvi. Solicitation

Must intend for the person solicited to actually

attempt or complete the crimevii. Conspiracy

Must intend to form an agreement

Must intend to have the act completed

viii. Homicide

Must intend to cause the victim to die4. Strict Liability Crimesa. For the public welfareb. Such that it is hard to imagine anyone thought doing it wasokay (extreme malum en se crimes)c. And the law requires no specific intent thend. The criminal will be held strictly liable for committing the

crimeIII. SPECIFIC CRIMES: CRIMES AGAINST THE PERSONA. Homicide

1. The Killing of a Human Being by Another Human BeingB. Murder

1. Killing of a Human Being by Another Human Being with MaliceAforethought

2. Elementsa. Mental state or fault requirementb. Act or omission requirementc. Causationd. Death

e. Four types of casesi. Where the actor intended to kill or knew death wouldresult from his actions

ii. Where the actor intended to inflict grievous bodilyharm or knew that such harm would resultiii. Where the actor manifested reckless indifference todeathiv. Where the death occurred while the actor was engagedin committing a felonyf. Premeditationi. At common law any pre-thought at all could beconstrued as premeditation/malice aforethought

ii. Premeditation generally falls into three categories Evidence of planning

Evidence of motive

Evidence as to the manner of the killing whichshowed a preconceived design to killC. Depraved Heart Murder

1. Elementsa. Extreme recklessness or negligenceb. Act or omissionc. Causation

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d. Death2. There must be something more than ordinary criminal recklessness

or negligence3. The conduct at issue is much more dangerous, risky, and the cases

often involve outrageous situations, such as Russian roulette, drag racing, shooting intocrowds, dropping dangerous objects from great heights, creating broad danger for cold-blooded reasons and with callousness toward the effect. So analyze the mental stateand conduct carefully

4. Most often, actual awareness of the risk is required and a conscious

disregard of that riskD. Felony Murder

1. Death occurring from the transaction of an inherently dangerousfelony

2. Elementsa. Must be committing felonyb. Death must occurc. Person murdered does not have to be the object of the felonyd. Look at probability the death will occur, not the specific factse. There is no mental state regarding the death; the guilty mindis supplied by the "collateral felony"f. To complete the elements, you must "plug in" the elements of

the collateral felony3. Merger Doctrinea. All felony homicides have assault and batteryb. Merger rule relieves those crimes which include feloniousassault and batteryc. Must have another inherently dangerous felony

4. Escape Rulea. Elements of a felony still in progressi. Not in place of safetyii. Loot not divided upiii. Distance from sceneiv. Time transpired

v. Crime spree- are they moving from one crime toanother

5. Misdemeanor-Manslaughter Rulea. Death resulting from the transaction of a dangerousmisdemeanorb. Death must result from a unlawful act that is malum in se (evilin itself)c. Must have inherent danger of physical injury with foreseeablerisk of bodily injury of an appreciable sortd. Some felonies not included in Felony-Murder includede. Assault and Battery sufficient for Misd-Manslaughter

6. Corpus Delecti Rule

a. An evidentiary rule to assure the reliability of the evidenceb. Used to get an out-of-court confession into courtc. Cannot consider confession of D to determine if the act wascaused by criminal agencyd. Issue arises when there is an out of court statement orconfession that prosecution seeks to admit to prove guilt

e. Court determines whether there is sufficient evidence,independent of the out of court statement/confession showing thati. The harm occurredii. It occurred as a result of criminal agency

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f. For homicide: must havei. Independent evidence of deathii. Proof that the death was caused by the criminal act of anotherE. Manslaughter

1. Killing of a Human Being Without Malice

2. Voluntary Manslaughtera. Elements are: intent to kill, formed in the heat of passionupon sudden provocation, omission or act, causation, deathb. Where the actor engaged in reckless or negligent behaviorthat was insufficiently culpable to constitute murder but more culpable than ordinarycriminal negligence

c. Main issue here revolves around the heat of passion"mitigation. D has to be actually provoked into the heat of passion; a reasonable person inD's circumstances would have been so provoked; D had not cooled down; a reasonableperson would not have cooled down

3. Involuntary Manslaughter a. Elements are: recklessness or negligence, act or omission,causation, death

b. The best general description of what mens rea is required forinvoluntary manslaughter is that D was aware or should have been aware that hisconduct created substantial and unjustifiable risk of harm to others, and that hisdisregard ofthe risk or failure to perceive is a gross deviation from the standard of care areasonable person would observe. This synthesized standard increases the risk overordinary negligence; allows for either an objective or subjective test; and calls for agross deviation rather than just unreasonablenessc. The major issue here is what mens rea is required. Thegeneral feeling is that for criminal liability, something more than civil negligence shouldbe required. There are three ways to change the civil negligence standard to requiremore culpabilityF. Causation

1. Must be Present in any Homicide Case or in any Case in which theCrime Charged has a Result Element

2. Presents a True Issue in Cases where there has been an InterveningAct or Force that Comes into Play after Defendant has Committed his Culpable act

3. These Intervening Factors can be

a. A victims act in response to a situation

b. A 3rd party's act in response or as a coincidence

c. An act of nature or inhuman agency4. The basic questions in these situations is whether the intervening

act which directly causes death is so remote as to be unforeseeable or so unconnectedwith defendant's act that it will break the chain of causation

5. Two Part Inquirya. Was the defendants culpable action or omission the cause in

fact of the death?b. If so, was it the proximate cause? You need both

6. Cause in Fact

a. But for Ds act, would V have died?

b. If the answer is no-V would not have died, then D was thecause in fact of the deathc. Some times you will see two causes acting togetherd. A shoots B, inflicting a serious wound, then C shoots B,completely unconnected, inflicting a serious wound

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e. While it is impossible to say either is the single cause in fact,if each is a substantial contributing factor, then each is a cause in fact

7. Proximate Causea. Second step: was Ds culpable act the legal or proximatecause of the resultb. Isolate the potential intervening causes, sometimes there ismore than one

c. After you've isolated these intervening factors, you mustanalyze whether they are sufficient to break the causation chain. Two approaches:d. Mental state resulti. You define the risk created by defendants culpability-what are the risks createdii. Then decide whether this outcome falls in theree. Act result

i. Look at Ds act, then ask whether the way in whichdeath occurred was reasonably foreseeable

8. Causation in Felony Murder a. The analysis is the same, but you focus on the act thatconstitutes the felonyb. Given this felony, was the way in which death occurredforeseeablec. If you have to go to a depraved heart analysis, you need toisolate Ds culpable act first, then do a regular causation analysisG. Robbery

1. Elementsa. Larcenyb. From the Personc. By Violence or intimidationd. If person believes he has the right to the money, it is notrobberyH. Rape

1. Common Law Definitiona. Carnal knowledge of a woman forcibly and against her will

2. Elementsa. Sexual touching of some sorti. At common law, this meant vaginal penetration by apenisii. Now the rules have morphed to fit the current socialvalues

iii. The touching can be any oral, vaginal, or analpenetration by any body part or object by and to either sex will satisfy this requirementb. Through forcei. Force is not there just because there is no consentii. Some courts will hold that the sexual act must becommitted through the completion or threat of violence

Feminists would hold that this is ridiculous-theharm of unconsented penetration should be enough

Both no consent and force should beconsidered the same thingiii. Fear created by the threat or perceived threat of forcemay be enough to satisfy this element-the fear must be reasonable

There is a lower standard for younger womenc. Against her willi. The definition of resistance is key here

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At common law, resistance was throughphysical opposition only-words alone were not enough

Physical resistance had to be to the utmost ofthe victims ability implying to the point of death

Now the resistance rule is generally relaxed-need probative resistance, enough to prove that the victim was not consenting to thesexual actii. Consent through fraud

Fraud in the factum negates any consent given Deception that causes a misunderstanding asto the fact itself

The most common form is when a doctorsexually penetrates the body of a patient who is unaware the act is occurring becauseshe believes she is submitting to a routine medical examination or procedure

Fraud in the inducement does not negateconsent

Deception as to some collateral issue-no Imnot married, well get married if you consent, I am rich-in other words any stupid andfalse pick up line is fraud in the inducement and does not negate consentiii. Consent through coercion

Consent granted under psychological duresswhich attracts the victim will negate such consent

Psychological duress which simply attacks herintellect will not negate consentiv. Consent through extortion

Some jurisdictions have said that consentgranted through extortion is not validv. Consent through intoxication

Consent is negated only if the woman wasdrunk to the point of unconsciousness or where the man drugged the woman without herknowledgevi. Consent of incompetent

Has long been held as invalid and punishablewhen victim is asleep, unconscious, or unable to understand the consequencesvii. Consent through marriage

Up until recently, most states had an exemptionfor marital rape-meaning that husbands could legally rape their wives

This has changed somewhat, however, 40states still retain some sort of exemptionviii. Effect of previous consensual acts

Prior to 1970 most jurisdictions routinelylooked at the victims prior sexual activities

The rationale was if it can be proved the victim

was promiscuous, it would weaken her statement that the sex was nonconsensual Since 1970 most jurisdictions have passed rapeshield laws which limit the amount of this type of evidence which can be admittedI. Statutory Rape

1. Statutory Rape is Defined as Sexual Intercourse with a Minor a. What is defined as a minor varies from 10-18 years old

2. A Majority of Jurisdictions Hold Statutory Rape to be a StrictLiability Crime

3. Some Jurisdictions Hold that only Males can be Found Guilty of Statutory Rape but there is a Movement Away from this

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a. Now many jurisdictions are holding females to be guilty ofstatutory rape

4. Some States are now Enacting Laws which Extend the Concept of Statutory Rape to Instances where a Power Imbalance is Presenta. The majority of these laws make it illegal for a guard to havesex with an inmate in the prison or mental health systemIV. SPECIFIC CRIMES: CRIMES AGAINST PROPERTYA. Larceny

1. The Tresspassory Taking and carrying away the personal property

in the possession of another with the intent to steel, permanently deprive, or withfelonious intenta. Tresspassoryi. Can not occur at the same time as taking and carryingaway (no crime)ii. Must have severance separate from takingiii. Continued control by concealment is possession if never allowed possession (after severance) by the owner (no larceny)iv. Continued trespass

Person gets possession by fraud, deceit, ortrespass, a subsequent felonious intent constitutes continued trespass and is larcenyb. Takingi. Can occur through a third partyc. Carrying awayi. Must be some asportation movement

A molecule moved is a taking away movementand is carrying away and constitutes larcenyd. Personal propertyi. Must be severed from real propertyii. Paper: only paper that represents personal property

Pawn ticket represents personal property

Phone bill represents a debt

Cash and checks represents personal property

iii. Animals were not personal property at common lawe. In the possession of anotheri. Custody: if D has only custody, then crime of larceny

Limited in scope, given for intended purposeonlyii. Possession: if D has possession, then crime of embezzlement

Possession includes custody

Look to the amount of authorityiii. Title: if D gains rightful title, then crime of falsepretensef. With felonious intent

i. If initial intent when getting possession is unlawful(deceit), he has unlawful possession and if he steals it, it is larceny by deceitii. Must look at risk of lossiii. Gaining possession by deceit or trickery is larcenyiv. Lost property: finder gets possession, until found it isin constructive possession of ownerv. Claiming lost property when you dont have title islarceny since you never had titlevi. Changing what is in the box is larceny by trickB. Embezzlement

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1. Entrustment of lawful possession, then misappropriation or conversion of property with felonious intent

2. No larceny in employer-employee relationship if the property ispicked up from a 3rd partyC. Burglary

1. Breaking and entering the dwelling house of another in the nighttimewith the intent to commit a felony thereina. Breakingi. An entrance contrary to the will of the occupier of thehouseii. Constructive: threat of violence, fraud, or conspiracyiii. Actual: application of force no matter how slight

Even a key, but unrestricted use of key is notbreaking

Breaking can occur to an inner door

Breaking into built in cabinets is breaking, butbreaking into a piece of non-built in furniture is not breakingiv. Someone must have moved in or currently dwellingb. Enteringi. Some part of body must cross the threshold

ii. Tools may be used as entering only if tool is the onlycontemplated method of the crimec. The dwelling housei. Must be able to stand up and turn around to be bigenough to constitute a dwelling house

Must be within ear shot of house (cartilage)d. Of anotheri. At common law, a person could not commit burglaryof his own homeii. Co-occupants could not commit burglary in owndwellingiii. Must look at authority and restrictions within own

habitatione. In the nighttimei. At common law, nighttime was between sunset andsunrise where there is not enough sunlight to discern a persons face

Heinous crime because people used darknessto disguise

Evidence is needed beyond a reasonable doubtof when breaking occurred

First element of burglary to be statutorilyeliminatedf. With the intent to commit a felony thereini. Common law

If the felony will happen in vicinity The breaking is made to facilitate felony

The breaking is so closely related to the felonyand in the process of

V. GENERAL PRINCIPLES OF LIABILITY: INCHOATE CRIMESA. Attempt Crimes

1. The First Requirement is a Specific Intent to Commit the UnderlyingSubstantive Crime

2. The Second Requirement is an Overt Act Toward the Commission of that Crime, which Falls Short of Completing the Underlying Crime

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3. Since the mid-1830s an Attempt to Commit a Crime has beenPunishable as a Separate Offense

4. Simply Because an Actor is Unable to Commit the Actions thatAttach Criminal Liability, he should not be Free of Criminal Liability

5. There Must be an Overt Act Beyond Mere Preparationa. Specific intent to commit the underlying crime is not enoughwhen it is not matched with an overt acti. Otherwise it is just a day dream and we all would

constantly be guilty of the crime of attempt6. Test for Attempta. Proximityi. In the proximity test the law measures how close anactor is to committing a crime

The closer one is the more chance of finding anattempt

Driving to the bank to rob-less likely

Opening the bank door to rob-more likelyii. The closeness of the crime is not considered alone,the seriousness of the crime also factors in

The more serious the crime, the farther the

actor can be from completing it McVeigh could be charged with parking thetruck in front of the fed building and does not have to go so far as arming the bomb b/cof the seriousness of the crime he has the specific intent to commitb. Res Ipsa Loquituri. Unlike the proximity test that looks forward this testlooks backii. The actor must complete actions that speak for themselvesiii. This means that the acts completed have to besufficient evidence to make the actors specific intent to commit a crime clear-there canbe no other outcome to his actions other than crime

In this thought pattern a court would look at theactions of the actor much like it would watch a movie. Assuming that the film stopped atthe point that the actors actions and the audience was asked what happened next andthere was only one overwhelming and reasonable response that he committed the actrequired by the crime

This is harder for the prosecution to prove

McVeigh would have to be caught arming thebomb for there to be only one outcomec. Modern Penal Code Testi. Conviction for attempt is allowed where the actor

Engages in an act or omission

Constituting a substantial step

Toward the completion of the crime

And be strongly corroborative of the actorspurpose-less stringent than Res Ipsa

ii. The following shall be sufficient to constitutesubstantial step under this rule

Lying in wait, searching for the victim Enticing or seeking to entice the contemplatedvictim of the crime to go to the place of its contemplated commission Reconnoitering the place contemplated for thecommission

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Unlawful entry of a structure, vehicle, orenclosure in which the crime is to be committed Possession of materials to be employed in thecommission of the crime which are specially designed for such unlawful use and serveno lawful purpose Possession, collection, or fabrication ofmaterials to be employed in the commission of the crime, at or near the placecontemplated for the commission where these acts serve no lawful purpose Soliciting an innocent agent to engage in

conduct constituting an element of the crimeiii. The Modern Penal Code test is stricter on thedefendant than the other testsB. Conspiracy Crimes

1. Conspiracy is an Agreement Between two or more People to Commita Criminal or Unlawful Act or a Lawful Act by Unlawful Meansa. This implies that there must be 2 or more parties involvedb. This also implies that it is the act of agreeing to commit acrime that is being sanctioned, making it an inchoate crimei. At common law no overt act was requiredii. Now most states require some sort of overt act infurtherance of the objective

2. Punishment

a. The punishment for conspiracy usually involves a sanctionabove and beyond the underlying crime

3. The Mens Rea Requirementa. Specific intent to form an agreementb. Specific intent to have the act completed

4. The Actus Rea Requirementa. Essentially the act required is only that of an agreementb. Most states require an overt act in furtherance of the crimec. Impossibilityi. Is not a defense to conspiracyd. Renunciation and withdrawali. Once the agreement has been made and any actor makes an overt act towards completion, then that is all that is necessary to find allconspirators guilty

5. Scope of Conspiracya. Party dimensioni. Chain A conspires with B who conspires with Cwithout As knowledge who conspires with D without As or Bs knowledge Is A in a conspiracy with D?ii. Wagon wheel A conspires with B, A conspires with C, Aconspires with D, none of them know the identity of the others except for A Is B in a conspiracy with D?iii. The courts are split on these two questions but the

Model Penal Code states that if one enters into an agreement with another knowing hehas conspired with others, he is guilty of conspiracy with all parties regardless if heknew their identitiesC. Accomplice Liability Crimes

1. Four Types of Actorsa. Principals in the first degree-P1b. Principals in the second degree-P2c. Accessories before the fact-A-BTFd. Accessories after the fact-A-ATF

2. Principals in the First Degreea. Is one who personally commits the crime or

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b. One who uses an innocent agent to commit the crimei. An innocent agent is a person, animal, or object whoCommits the crime but Lacks the capacity or mens rea required to be convicted for thecrime and Is fooled or forced to commit the crime by P1

Example-A dolphin trained to put a bomb on aships hull or

A child told by a drug dealer to deliver apackage he falsely tells the child is prescription drugsc. Note that the law considers someone who uses an innocentagent as a principal not an accomplice

3. Principals in the 2nd degreea. Is someone who intentionally helps or encourages P1 tocommit the criminal acti. Must be actively at the scene with P1ii. Or constructively at the scene

Examples of P 2nd -lookouts, or drives a getaway car

4. Accessory Before the Fact-A-BTFa. Is someone who intentionally helps P1 or P2 before thecriminal act is done but is not present at the scene

i. Examples-obtaining a murder weapon, or encouragingthe principals to commit the act5. Accessory after the Fact-A-ATFa. Is someone who was not part of the planning or commissionof the crime but intentionally renders aid to the principals after the crimes occuri. Examples-Hiding P1 and 2, destroying evidence, or hiding the loot

Basically they all are people who obstructjustice by making it harder for the police to apprehend the principalsb. Note-at common law husbands and wives could not beconvicted of being an accessory after the fact. They were expected to act in thatcapacity and were thus excused from responsibility

6. Affects of classification at common lawa. Punishmenti. All classifications were punished the same

Example-all principals and accessories werecharged with murder if P1 wasb. Jurisdictioni. The principals were tried where the crime wascommittedii. The accessories were tried where they helped theprincipalsc. Derivative

i. All convictions were dependent on the P 1s conviction

since they were thought to be derivative offense in nature7. Affects of classification todaya. Punishmenti. P1s, P2s, and A-BTF are all termed accomplices andtreated the sameii. A-ATF are treated differently

They are usually only held to be responsible formisdemeanors if convicted

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They are now most often charged with aseparate crime called obstruction of justice only not fictisously held to be a retroactiveparticipant of the original crime

8. Mens Rea required for complicitya. Same mens rea as the underlying offense or at leastb. Intent to help someone else commit a crimec. Special situations falling under the second type of mens reai. Knowledge

An actor will satisfy this mens rea element if heknows that he is furnishing assistance to someone he knows is intending to commit acrime

Especially if the crime is of a serious nature

Most common is Providers of goods andservices-When a person provides a common good or service to a principal who usesthem to commit a crime then he can be charged as an A-BTF if it is proven he

9. Modern trenda. The law has expanded accomplice liability in this areagreatly- An accomplice will be held liable for any act he Should have reasonably foreseenOr was a natural and probable consequence of the offense he intended to offer aid to

10. Actus Rea Required for Complicity

a. Actual assistancei. Physical

Examples-providing the weapon, drivinggetaway carii. Psychological

Just being there is enough of an act if theprincipal actor knows you are there to render encouragement or help

But yelling words of encouragement are notenough if the actor does not hear youb. Omissionsi. The actus rea of complicity can be satisfied by anomission also if the accomplice has a legal duty to act

Example-police officer standing by and

watching a crime being committed without stepping in11. Other Specifics

a. It is not necessary for the principal to know the accomplice ishelping him before the accomplice can be chargedb. The accomplice will be found guilty if his acts had at leastsome minimal effect on the principals ability to commit the crimec. The Modern Penal Code has taken a tougher roadi. An accomplice can be charged whether his aid isknown or helpful to the primary actord. Immunityi. Accomplice liability can not be used to convict an

individual whose behavior is not punishable under the law Statutory rape is an example-The underageparty can not be charged as an accomplice to the crime even if she knew and intended toaid the principle in commit the crimee. Incapacityi. A defendant who himself is legally incapable of committing a crime may become an accomplice if he helps someone else who is legallycapable of committing the offense

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Example-husband charged with accompliceliability for aiding in his wives rape even though he could not be charged with theunderlying crime of rape b/c of the H/W immunity for rapeVI. KANSAS HOMICIDE STATUTESA. Capital Murder

1. Kidnappinga. Killingb. Of any personc. Intentionallyd. And with premeditatione. During the commission of a kidnapping or an aggravatedkidnappingf. With the intent to hold the victim for ransom

2. Inmatea. Killingb. Of any personc. Intentionallyd. And with premeditatione. By an inmate or prisonerf. Confined in a state correctional facility, communitycorrectional facility or a jail or in the custody of an employee of the above

3. Sex Offensesa. Killingb. Of any personc. Intentionallyd. And with premeditatione. During or subsequent to the commission ofi. Rapeii. Criminal sodomyiii. Nonconsensual sexiv. Sex with someone younger than 16v. Aggravated criminal sodomy

4. Law Enforcement Officer a. Killingb. Of a law enforcement officeri. Who was reasonably known to be working as suchc. Intentionallyd. And with premeditation

5. Multiple Victimsa. Killingb. Of two or more peoplec. Intentionallyd. And with premeditatione. In the same act or in two or more related actsf. With a common scheme or course of conduct

6. Sex Kidnappinga. Killing

b. Of any person under age 14c. Intentionallyd. And with premeditatione. During the commission of a kidnapping or aggravatedkidnappingf. With the intent to commit a sex offense upon or by the child

7. Murder in the First Degreea. Killing

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b. Of a human beingc. Intentionallyd. And with premeditation-any pre-thought in Kansas or duringthe commission of an inherently dangerous felony

8. Murder in the Second Degreea. Killingb. Of a human beingc. Intentionally, or unintentionallyd. But recklesslye. And with extreme indifference to the value of human life

9. Voluntary Manslaughter a. Killingb. Of a human beingc. Intentionallyd. Upon a sudden quarrele. Or in the heat of passionf. Or upon an unreasonable but justified belief thatcircumstances justified deadly force

10. Involuntary Manslaughter a. Killingb. Of a human beingc. Unintentionallyd. Recklesslye. In the commission of or flight from a felony not classified asinherently dangerous or during the commission of a lawful act in an unlawful mannerf. Excluding DUI situations

11. Vehicular Homicidea. Killingb. Of a human beingc. Unintentionallyd. While operating a motor vehiclee. With unreasonable risk of injury to person or propertyf. And deviates from the normal standard of care by a

reasonable person12. Assisting Suicide

a. Intentionally advising, encouraging, or assistingb. In a suicidec. Or an attempted suicided. Of another

13. Injury to a Pregnant womana. Injuryb. Of a pregnant womanc. By any one other than the pregnant womand. Causing a miscarriage

VII. AFFIRMATIVE DEFENSES TO CRIMES: PRIVILEGES TO DEFEND

A. Self Defense1. General Rulesa. Defendant may use non deadly force against non deadlyforce-if he is innocentb. Requires a reasonable belief that self defense was necessaryeven if you were wrongc. Reasonableness standard uses an objective approach usingsubjective circumstances

i. Must determine Ds belief 1st, then jury determines if itwas reasonable

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d. Special situationsi. The original actor may use self defense also but only if he withdraws (throws down his gun, runs away) and makes his withdrawal clearly knownand is then faced with the prospect of the original victim attempting to retaliatee. Non-Aggressor met with non-deadly forcei. Victim can use reasonable, non-deadly force w/oretreatingii. Deadly force is unreasonable against non-deadly forceiii. The threat of deadly force by victim is non-deadly

force

Showing a gun to aggressor is non-deadlyf. Non-aggressor met with deadly forcei. Only use deadly force if it seems reasonablynecessary to avoid death or serious bodily injuryii. (Foster): No retreat necessary, may use deadly forceand stand groundiii. (Beale): Must retreat; however, may use deadly forcewithout retreating if:

You are the victim of a robbery

You are attempting an arrest

You are in you home, office, or clubiv. Middle Ground Rule: No duty to retreat, but a failure toretreat is a circumstance that can be used to determine reasonablenessv. Usually no retreat necessary when aggressor is co-occupantg. Aggressor of non-deadly force met with non-deadly forcei. No privilege of self defense for aggressor h. Aggressor of non-deadly force met with deadly force

(Foster): must retreat, unless in home, office,or clubi. Aggressor of deadly force met with any forcei. Aggressor must completely withdraw and

communicate, then may use reasonable and even deadly force in defenseii. Retreat does not equal withdrawal, must successfullycommunicate retreat to be withdrawal

Retreat is a back to the wall (try to escape)

Withdraw means to totally remove yourself fromthe actionj. Reasonable Mistake rulei. Determined by the standard of a reasonable personunder like circumstances- question for the juryii. Deadly force is not permitted in defense against non-deadly force If make a mistake on the amount of force needed than you will be heldB. Defense of Others

1. General Rulea. One may use that amount of force which one sincerely andreasonably believes necessary to help the other in dangerb. At common law, a person defending another can do whateverthe person for whom he intervenes could have done in his own defensec. KS Statutes: Puts defense of others at same level as self-defense

2. Special Situationsa. A few states restrict this right to those one has a specialrelationship with-family

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b. Some states (but not many today) only allow a defender tostep into the shoes of the seeming victim. This means that if the supposed victim isfound not to have the right to defend himself than neither does the rescueri. This situation arises when undercover police officersare attempting to make an arrest. The suspect is wrongfully resisting and a third person,the rescuer, perceives it as a fight and rushes in and batters the policeii. In this situation where the above rule is in effect therescuer could be charged with general intent (negligent) crimes onlyC. Defense of Dwelling and Prevention of Crime

1. Prevention of Crimea. Always must use a reasonable force including deadly force ifreasonably necessary to protect from arson or burglaryb. Crime prevention using deadly force only for forcible feloniesc. May use reasonable non-deadly force to protect a nonburglary trespass (with no intent to commit a felony therein)i. Exception: When someone does not intend to commita felony, but will fight to get in, may use self-defense and deadly force if reasonableii. May make a reasonable mistake in determining theintent

2. Defense of Dwellinga. does not have to be your dwelling house, only authority to

protect the dwelling houseb. You can use that amount of non-deadly force sincerely andreasonable believed necessary to prevent entry to or harm to your dwellingc. Special situationsi. Make My Day Statutes-some states have passedstatutes recently which allow deadly force in defense of dwellingii. The remaining states allow deadly force to be used if you reasonably expect harm to yourself to occur

The level of harm expected does NOT have tobe deadlyiii. You are not required to retreat in any jurisdictionbefore you rightfully can use deadly force

3. Defense of Propertya. Deadly force to protect only property is never allowed

4. Use of Force to Prevent a Crimea. Private citizeni. Can use non-deadly force to prevent a felony or serious breach of the peaceb. Police officeri. May use the amount of force sincerely and reasonablyfelt necessary to prevent a crimeii. Deadly force can only be used to prevent a dangerousfelony

5. A Private Persons Use of Force to Arrest

a. General Rulei. You may use that amount of force that you sincerelyand reasonably believe is necessary to arrest for a felony or a serious breach of thepeaceb. Special situationsi. You may only use deadly force to arrest someonecommitting a felony

If you are wrong you are held strictly liableii. In Kansas you can only use deadly force when thefelony endangers the life of you or another

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6. A Police Officers Use of Force to Arresta. General rulei. A police officer is limited in his use of deadly force bythe 4th amendment to situations only when

He sincerely and reasonably believes suchforce is necessary

And he has probable cause to believe that theperson to be arrested has committed a DANGEROUS felony

Is attempting to escape by the use of a deadlyweapon or that the person will

Endanger human life unless arrestedimmediately

There is no strict liability for police officersmistakesii. Police officer May use the amount of force sincerelyand reasonably felt necessary to prevent a crime

Deadly force can only be used to prevent adangerous felonyb. Resisting arresti. Under common law you can use non-deadly force to

resist arrest if you sincerely and reasonably believed the arrest was unlawful Could never use deadly forceii. Special circumstances

Nowadays in Kansas and most states you donot have the right to resist any arrest whether believed to be lawful or unlawful

You still do retain the ability to defends yourselfwhen the arresting officer greatly exceeds the limit of necessary forceD. Duress

1. The law has traditionally recognized a defense of duress insituations where A holds a gun to B's head and tells B to commit a crime.--B has a validdefense of duress

2. Elements

a. That defendant was underi. An unlawfulii. Present, imminent and impendingiii. Threat of such magnitude to induce a well groundedfear of death or serious bodily injuryb. Threats to loved ones may satisfy the requirementsc. Threats to property will notd. If the duress is created by the defendants negligent actionsduress is no defense

3. The most litigated area in the defense of duress is what is meant byimminenta. The trend is to loosen this requirement. Making its presence

evidence of duress but not explicitly requiring it4. Duress is not a defense to murder

E. Necessity

1. An act which would otherwise be a crime may be excused if theperson accused can show that it was done only in order to avoid consequences whichcould not otherwise be avoided, and which, if they had followed, would have inflictedupon him, or upon others whom he was bound to protect, inevitable and irreparable evil

2. That no more was done than was reasonably necessary for thatpurpose

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3. And that the evil inflicted by it was not disproportionate to the evilavoided-examplesa. A person is not guilty in joining a rebellion if it is necessaryto save his lifeb. The crew of a vessel are not guilty of a crime in arising anddeposing the master, if it is a case of necessity arising from the unseaworthiness of thevesselc. A vessel is not liable for violation of the embargo laws whereduring a legitimate voyage she is obligated by stress of weather to take refuge in a

proscribed portF. Intoxication

1. Involuntary intoxication is a defense to both specific and generalintent crimes

2. Voluntary intoxication is another matter and is dealt with differentlyin different jurisdictionsa. Leads to greater punishmenti. No jurisdictionsb. Is no defense at alli. Some jurisdictionsc. Only good to show a lack of premeditation for pre-medmurders

i. Some jurisdictionsd. Is a defense negating mens rea in specific intent crimesi. Some jurisdictionse. Is a defense negating mens rea for general intent crimesi. No jurisdictions

3. Where it is allowed as a defense the defendant has the burden of proving it is so

4. Kansas Rulea. The fact that a person charged with a crime was in anintoxicated condition at the time the alleged crime was committed is a defense only ifsuch condition was involuntarily produced and rendered such person substantiallyincapable of knowing or understanding the wrongfulness of his conduct and of

conforming his conduct to the requirements of lawb. An act committed while in a state of voluntary intoxication isnot less criminal by reason thereof, but when a particularintent or other state of mind isa necessary element to constitute a particular crime, the fact of intoxication may be takeninto consideration in determining such intent or state of mindG. Insanity

1. It is generally believed that actors with a certain degree of mentalabnormalities should not be held responsible for their crimes because they can not actas rational calculators-IE they can not fully act with a guilty mind

2. There is lots of confusion on what should be the proper test for insanity

3. Three major test have grown out of common law

a. Mac Naghten'si. At the time of committing the act the defendant waslaboring under such a defect of reasoning, from a disease of the mind as to not know

The nature and quality of the act he committed-lemon example; OR

What he was doing was wrong-mostly legalwrong but sometimes morally and/or sociallyii. For a long time was the most popular testb. Durham test--Product test

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i. Thought the insanity defense should turn on whether the mental unsoundness of the actor caused the actual criminal action

Example: a crazy man could be held liable forstealing a car if he knew he was stealing a car and knew it was wrong. His craziness didnot drive him to do it. The same crazy man would not be held responsible for killing aman if his insanity caused him to believe it was necessaryc. The control testi. Mental disease or defect caused the defendant to losepower to choose between right and wrong, though he may know the difference. In otherwords took away his will powerii. Not a well followed test

Example quote-"If you can not resist an impulsein any other way, we will hang a rope in front of your eyes, and perhaps that will help."d. The MPC test

i. At the time of such conduct as a result of mentaldisease or defect the defendant lacks substantial capacity either to appreciate thecriminality/wrongfulness of his conduct or to conform his conduct to the requirements ofthe lawe. The Mens Rea Testi. Kansas:

4. Burden of Proof a. At common law the burden of proof(clear and convincing)lied in the hands on the prosecutors to prove defendant was not insaneb. Then it moved to preponderance of the evidencec. Then it moved to the defendants burden to prove that he wasinsane by clear and convincing evidenceH. Impossibility

1. Legal impossibility is no crimea. Buying what is thought to be stolen goods is not receivingstolen property even with intent if property was not stolen

2. Factual impossibility is an attempted crime

a. Man not in bed when person shoots through window isfactual impossibility of murder, but is still an attemptI. Mistake

1. Mistake of Fact

a. A mistake of fact is a defense to a specific intent crime ifi. The mistake was

Honest

Example-A takes Bs coat thinking it was hisown even though they looked nothing alikeb. A mistake of fact is a defense to a general intent crime ifi. The mistake was

Reasonable

Honest

Example-A takes Bs coat thinking it was hisown and it was very similar

2. Mistake of Lawa. Is not usually a defensei. This is based on the idea that ignorance of the law isno excuseb. Mistake of the law is a defense ifi. A statute says that it isii. The highest court in the jurisdiction says that it is

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iii. If the highest court said that an action was legal and itturned out it was notiv. If the statute was not known and was not made readilyavailablev. Lambert exception

Defendant did not know law

Was given no information that would have lether know

Was punished for a negative act And there was no evidence indicating that thedefendant should have inquired abut the lawvi. If the mistake of law is one that deals with a civil lawand the mistake leads to the violation of an unknown criminal lawvii. If the defendant acted in reliance upon a statement bya lower courtviii. If the defendant reasonably relied on a grant of permission from an administrative bodyix. If defendant relied on an official interpretation by apublic officer charged by law to enforce it

DA, Attorney General, Mayor, Governor, Cops-

and VERY infrequently on private attorneys (but only on malum prohibitum laws)J. Immaturity1. Common Lawa. By the end of the 13th century the idea became firmly rootedthat children of tender years could not develop/exhibit the mens rea or guilty mind that isrequired to be held criminally responsibleb. Age breakdowni. 6 and younger

Never tried under criminal lawii. 7-13

Sometimes tried under criminal law

The older the more chance

It had to be proven with "strong and pregnant"evidence that the child understood what he didiii. 14 and older tried and held responsible for criminalactions

2. Kansasa. 9 and youngeri. If held responsible at all are held responsible in and tothe juvenile court system onlyb. 10-17i. Sometimes tried in juvenile court sometimes adult

The older the more chance

It had to be proven with "strong and pregnant"

evidence that the child understood what he did The more serious the crime the more chance anadult standard would be applied

c. 18 and olderi. Always held and tried in the adult system

3. Purposes of the Juvenile Systema. The purpose is not to punishb. The purpose is to rehabilitate

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Criminal LawProfessor Byers

ContentsPage

I. Introduction to Criminal Law and Criminal JusticeSystem..1

A. The Purposes ofPunishment....1

1. Retribution..1

2. Deterrence...1

3. Incapacitation.1

4. Rehabilitation.1

B. Sources and Limitation of CriminalLaw1

1. CommonLaw.1

2. Statutory Law.1

II. The Structure of Criminal Offenses: The Elements ofCrimes...2

A. The Act Requirement (Actus Reus)

..21. Voluntary Act

Requirement..22. Omissions...

.2B. The Mental State Requirement (Mens Rea)

....31. Background....

32. Wording..

3

3. Intent Categories....34. Strict Liability

Crimes...4III. Specific Crimes: Crimes Against the

Person.4A. Homicide.

4

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1. TheKilling..4

B. Murder....4

1. Elements..4

C. Deprived HeartMurder....4

1. Elements..4

D. FelonyMurder...5

1. Elements..5

2. MergerDoctrine.5

3. Escape Rule.5

4. Misdemeanor-Manslaughter Rule...

.55. Corpus Delecti

Rule...5E. Manslaughter.

.51. Voluntary

Manslaughter...52. Involuntary

Manslaughter6F. Causation

6

1. Two PartInquiry...6

2. Cause inFact..6

3. ProximateCause....6

4. Causation in FelonyMurder.7

G. Robbery...7

1. Elements.

.7H. Rape.

71. Elements.

.7I. Statutory

Rape...81. Defined....

8

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IV. Specific Crimes: Crimes AgainstProperty....8

A. Larceny...8

1. Elements..9

B. Embezzlement....9

1. Elements..9

C. Burglary..9

1. Elements..9

V. General Principles of Liability: InchoateCrimes...10

A. Attempt Crimes10

1. Elements

102. Test for

Attempt...10B. Conspiracy

Crimes...121. Elements

122. Punishment...

123. The Mens Rea

Requirement...12

4. The Actus ReaRequirement...12

5. Scope ofConspiracy.12

C. Accomplice LiabilityCrimes...12

1. Four Types ofActors...12

2. Principals in the FirstDegree.12

3. Principals in 2nd

Degree...134. Accessory Before the Fact-A-

BTF..135. Accessory After the Fact-A-

ATF136. Mens Rea Required for

Complicity137. Modern

Trend..14

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8. Actus Rea Requirement forComplicity.14

9. OtherSpecifics.14

VI. Kansas HomicideStatutes.14

A. Capital Murder14

1. Kidnapping Murder14

2. InmateMurder.15

3. Sex OffensesMurder...15

4. Law Enforcement OfficerMurder.15

5. Multiple Victims Murder15

6. Sex Kidnapping

Murder.157. Murder in the First

Degree.158. Murder in the Second

Degree.159. Voluntary

Manslaughter.1610.Involuntary

Manslaughter..1611.Vehicular

Homicide.16

12.AssistingSuicide...16

13.Injury to a PregnantWoman..16

VII. Affirmative Defenses to Crimes: Privileges toDefend...16

A. SelfDefense...16

1. GeneralRules...16

B. Defense of

Others.171. General

Rule.172. Special

Situations.17C. Defense of Dwelling and Prevention of

Crime..181. Prevention of

Crime.18

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2. Defense ofDwelling..18

3. Defense ofProperty..18

4. Use of Force to Prevent aCrime.18

5. A Private Persons Use of Force toArrest.18

6. A Police Officers Use of Force to Arrest...18

D. Duress19

1. Elements....19

E. Necessity19

1. Elements19

F. Intoxication...

201. Voluntary Intoxication

202. Involuntary

Intoxication.203. Kansas

Rule..20G. Insanity.2

01. MacNaghtens

Rule..20

2. Durham Test-ProductTest.20

3. The ControlTest..21

4. The MPCTest..21

5. Burden of Proof21

H. Impossibility.21

1. Legal

Impossibility...212. Factual

Impossibility...21I. Mistake..2

11. Mistake of

Fact.212. Mistake of

Law.21

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J. Immaturity22

1. CommonLaw...22

2. Kansas...22

3. Purposes of JuvenileSystem...22

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