Puppyhelmet Criminal Outline

7/29/2019 Puppyhelmet Criminal Outline

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I. The principle of legality

a. Due Process aspecti. Provides people with some protection from arbitrary enforcement of the law

1. people need to know about lawa. not actual knowledge of law but ability to know about the law

ii. No crime without existing law

iii. Malum in Se (evil within itself)1. Nature of the crime itself shows that it is evila. Murder and rape

iv. Malum Prohibitum (evil because said is evil)1. Legislature says it is a crime

b. Legal Concepts

i. Vagueness1. Law does not allow reasonable notice, test:

a. So obscure that men of ordinarily intelligence must necessarily guess as to theits meaning and differ as to its applicability

2. Arbitrary and discriminatory enforcement of law should be avoided

a. A statute must not encourage arbitrary/erratic arrests and convictionsii. Overbroad1. State has too much power by possibly prohibiting conduct protected by 1st amendmen

a. Fighting words are the exception to free speech2. Does not draw distinction between innocent conduct and conduct calculated to cause

harm and feariii. Sentencing discretion

1. Abuse of discretion standarda. The higher court will evaluate if the judge did something really outrageous an

arbitrary.b. Fear of judge acting out of bias.

i. Usually appellate court tips the scales in favor of the lower court, unlethey did something truly appalling

iv. Unconstitutional Laws1. Bill of attainder (Your face is illegal!)

a. Make criminal an act that when done was not criminal; orb. Aggravate a crime or increase the punishment therefore

2. Ex-post factoa. Legislative act that inflicts punishment or denies a privilege without a judicial

trialII. Principles of Statutory Interpretation

a. Plain Meaningi. The statute elements mean what they mean

1. sometimes evidence contradicts these meanings2.There is often the problem that the legislature left something out of a law. Didthey leave it out because they didnt like that aspect or because they thought theyalready pointed you in that direction?

b. Terms in the law that come from common lawi.Presumption that legislature used common meaning of term when enacted statute

1. legislature got common meanings from common lawc. Legislative History

i. Defines what the legislature means by elements of statute


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d. Doctrine of Lenityi. Justice errs on the side of the defendant

III. Relationship between Common Law and Statutes

a. Statutes based on common law principlesb. Legislative history on some laws

i. Says what the legislature meant by some terms of statute

IV. The Challenge of Legislative Intenta. What did the legislature mean by certain termsi. Look to common law definitions of the time to determine meaning

ii.If one meaning is constitutional and one is unconstitutional then court always goes withconstitutional meaning

V. Understand the presumption of innocence and Burden of Proofa. Presumption of Innocence (Presumed innocent until proven guilty)

i. Jury should not have strong opinion about the case before trialii. Jury instructions are the number 1 reasons for reversal and appeal

iii.Jury should presume the defendant is innocent, and make the prosecutor prove guilt1. Presumptions are a start point

2. Prosecution must rebut the presumption (change it)b. Identifying Elements of a crimei. Actus Reus

ii. Mens Reaiii. Causationiv. Attendant Circumstances

c. Understanding the relationship between elements and proof

i. Elements must be proven beyond reasonable doubtd. Role of Circumstantial evidence

i. Do the circumstances point towards guilty or not guiltyii. Direct evidence and circumstantial evidence

1. One is not better than the other a. Depends on the case and the evidence

e. Role of Inference

i. Using factual circumstances to infer conclusionsii. Not a starting point

iii. Inference can rebut a presumptioniv. Inference is permissive

f. Deciphering proof Burdensi.Prosecution has to prove that guilt is reasonable and that innocence is unreasonable

1.Prosecution also has burden of production of facts that point to guiltii.Proof has to be such that it excludes every fair and rationale response except for one, guilt

VI. Purpose of Criminal Law

a. Retribution Purely motivated by feelingsi. Create remedy for wronged past

ii. Punish out of revenge- make punishment fit the crimeb. Deterrenceutilitarian (done for good of society)

i. Individual- punish to deter individual from committing future crimesii. General- punish to deter others from engaging in similar crime for fear of incurring same

punishment 1. can be deterrence to punish a person wrongly to scare everyone else into line


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c. Incapacitationutilitarian (done for good of society)i. Imprison criminal to protect society from harm

ii. Criminal has fewer opportunities to commit acts causing harm to societyd. Rehabilitationutilitarian (done for good of society)

i. Reform criminal by developing skills in prison to transform them into productive citizensii. Criminals are able to conform behavior to societal norms upon release

VII. Actus Reus______________________________a. How is this concept defined

i. Interpreted as the comprehensive notion of act, harm, and its connecting link.b. What principle of criminal law does it reflect

i. Physical/external part of the crimeVIII. The Actus component

a. Expressing the voluntary physical movement in the sense of conductb. What is the essential ingredient of the criminal act

i. It must be voluntary

ii. Act is not an act if it is done unconsciouslyc. How is this requirement satisfied by:i. Omission

1. No action is an act when there is a failure to act under certain circumstances2. Omission + Duty of Care = Criminal Act

a. Duty comes from:i. Formal familial relationship (husband-wife : parent-child)

ii. Legal duty (file taxes)iii. Contractual Duty (nursing home during hurricane Katrina)iv. Assume role of caregiver (other people assume you got it)v. When you create the danger (if you hit someone and then take off)

ii. Possession

1. Knowledge of the possession2. Volition is component of possession like physical act

IX. The Reus component

a. Expressing the fact that this conduct results in a certain proscribed harmb. The concept of social harm/prohibited result

i. Societal interest is harmed1. which the law prohibits

X. Distinction between the mental component of Actus Reus and Mens Rea

a. Volition of act is separated from Mens Reai. Did act occur with right of state of mind (Mens Rea)

XI. Mens Rea_________________________________

Strict Liability (no intent) General Intent Specific Intent

a. Requisite Criminal intent to prove crimei. A few crimes that require no Mens Rea

1. Strict Liabilitya. Statutory Rape


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b. Why it is a fundamental principle of criminal law

i. Culpability v. Elemental meaning

1. Culpabilitya. The defined mental state just has to relate to any action if prohibitive result

occursb. If you are charged with a crime that requires maliciousness and you do

something malicious then you are guilty whether the result was what youwanted to happen or not.c. One category where we still follow this meaning of Mens Rea

i. Felony murder2. Elemental

a. The defined mental state has to relate to producing the prohibitive resultb. The term used in the law of today

ii. Common law concept of malice

1. wickediii. Common law concept of intent

1. Purpose and knowledge

c. Relationship between mens rea and prohibited resulti. Mens rea produces the prohibitive resultd. Miscellaneous introductory issues

i. Proof of intent

1. Motive is not intenta. Motive is motivation

i. Why you do somethingb. Motive can prove intent

2. Intent is the purpose to produce a result3. Intent is not presumed, it is inferred

ii. Transferred Intent

1. The law prohibits one from causing harm to a person, not to a specific person2. Law protects society not individuals

iii. General v. Specific Intent

1. Generala. Mens rea produces only the act

2. Specifica. All specific intent offenses will always have two mens rea elementsb. Mens rea does not have to produce the actc. Any offense that adds with intent to adds specific intent

e. Purpose of mens rea

i. is to distinguish between inadvertent acts and acts performed with a guilty mind

f. COMMON LAW MENS REAi. Specific Intent1. General intent to do the act and specific intent to commit the crime2. Purpose with another event or knowledge of law/facts3. Increased penalties4. Applies to:

a. Premeditated murder, attempt, solicitation, assault, robbery and larceny, forgeryfalse pretenses and embezzlement

5. Defenses


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a. Voluntary intoxicationb. Unreasonable mistake of fact

ii. General Intent

1. Voluntary and Deliberate2. Should have known Principle

a. Greater ability to foresee consequences, the more the law considers the act as

reckless3. Generally lesser penaltiesa. Exception: Statutory Rape

4. Dressler Example:a. I have specific intent to blow-up wife on plane but I have general intent to kill

everyone else when that plane crashes even though they where not my specifictargets.

iii. Malicious Intent (Wicked and Depraved Heart)1. Actual intent to cause a particular harm that is produced, or a harm of the same genera

nature, AND2. Absence of any justification, excuse or recognized mitigation

iv. Strict Liability1. No mens rea is required, but must voluntarily perform the act2. Generally consists of regulatory or mala prohibita offenses with low penalties3. Argument for strict liability

a. Efficiency for prosecutionb. Forces self-monitoring

4. Argument against strict liabilitya. Are not necessary or effective in protecting the public from unsafe products or

environmental pollutionb. Often strict liability statutes impose vicarious liability, even when the

employer/supervisor was not involved in the conduct in questionc. Statutes may be unconstitutional when it affects specific constitutional rights

v. Public Welfare Offenses (enacted by legislatures) pure food and drug laws, traffic

regulations [legislatures dont put mens rea in the statute]

1. Generally involve conduct not morally wrongful malum prohibitum conduct.

This is conduct that we have made wrong usually thru legislation.2. Little penalty usually minor fine

b. Mistakes andGeneral /Specific Intent

i. MPC says if mistake nullifies element then you are left with whatever is leftii. Common Law

1. Specific intent; mistake has to be honest2. General intent; mistake has to be honest and reasonable

c. MODEL PENAL CODE MENS REAi. Replaces common law distinction between general and specific crimes

ii. Purposes

1. Deter crimea. Forbid and prevent conduct that unjustifiably and inexcusably inflicts or

threatens substantial harm to individual or public interests2. Distinguish and incapacitate truly evil people


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a. Subject public control persons whose conduct indicates that they are disposes tocommit crimes

iii. Elements

1. Conducta. Inflicts or threatens substantial harm to individual or public interests

2. Attendant circumstances

a. Surrounding aspects that make it a crime3. Resulta. Harm done

iv. Mental States- applicable to each of the elementsType Conduct Attendant Circumstances Result

PurposeProbability: Irrelevant*note mostly applies totreason

Conscious Object,Trying to achieve apurpose

Awareness, Belief, Hope Conscious Object

KnowledgeProbability 100%

Awareness Awareness Awareness of practicalcertainty

RecklessnessProbability: SubstantialRisk

Not Defined Conscious disregard of substantial

and unjustifiable risk (1)

Conscious disregard of

substantial and unjustifiablerisk

NegligenceProbability: SubstantialRisk

Not Defined Failure to perceive substantial andunjustifiable risk (2)

Failure to perceivesubstantial and unjustifiablerisk

Note that probability of the associated harm is higher for the MPC knowledge than for purpose

Recklessness is the default mental state for a crime/element unless otherwise specified

Each mental state incorporates all lesser mental states; if crime requires recklessness but the criminal had knowledge, the was also guilty of

recklessness

Mistake of fact can decrease the penalty but never increase it, even if a greater crime was intended

Some states define willfulness as knowledge plus awareness of illegality

(1)Conscious disregard of risk= a gross deviation from the standard of conduct that a law-abiding person would observe in the actors situation

(2) Failure to perceive a risk= a gross deviation from the standard of care that a reasonable person would observe in the actors situation. NOTE: thisdifferent from negligence in torts, which is any deviation from the standard of care a reasonable person would observe in the situation

1. Purposefullya. A person acts purposefully with respect to his conduct when it is his conscious

object to engage in certain conduct or cause a certain result2. Knowingly

a. A person acts knowingly with respect to the nature of his conduct when he isaware that his conduct is of that nature or that certain circumstances exist.

b. He acts knowingly with respect to the result of his conduct when he knows thathis conduct will necessarily or very likely cause such a result

c. Also satisfies the mental statute that requires willful conduct

3. Recklesslya. A person acts recklessly when he consciously disregards a substantial or

unjustifiable risk that circumstance exists or that a prohibited result will follow,and this disregard constitutes a gross deviation from the standard of care that areasonable person would exercise in the situation.

b. Requires that the actor take an unjustifiable risk and that he know of andconsciously disregard that risk

i. He must know that injury might result (if he knows that it is certain toresult, he acts knowingly).


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4. Negligentlya. A person acts negligently when he fails to be aware of a substantial and

unjustifiable risk that circumstances exist or a result will follow, and sucfailure constitutes a substantial deviation from the standard of care that areasonable person would exercise under the circumstances

d. Willful Blindness Under MPC and CL

i. Common law put willful blindness under the definition of intent1. Intent in common law means both purpose and knowledge of substantial certaintyii. MPC puts willful blindness under the definition of knowingly

1. Knowingly is not just actual knowledge, but also with substantial certainty2. Element of knowledge may be satisfied by inference from the proof that a defendant

deliberately closed his eyes to what otherwise would have been obvious to hima. if one actually believed that the fact did not exist, he cannot be convicted

XIII. MURDER a. Common Law

i. Old School Common Law didnt have degrees of murder. It combined the 1st Degree and 2degree buckets and just hung people. Now almost every state has degrees of murder.

ii. How a D ends up with a degree of murder is usually decided by his mens rea b/c the crime more reprehensible if done for certain reasons. Everybody hates the cold blooded slow guy

1. With MALICE AFORETHOUGHTa. Intent to kill: Expressed malice aforethought

i. Evaluate1. Planning activity2. Motive3. Method of Killing

ii. Elements1. Willfulness: Intent to Kill2. Premeditation: cool mind, capable of reflection i.e. thought

beforehand3. Deliberation: cool mind, actually reflected i.e. considered the

consequencesb. Implied Intent to Kill

i. Lying in Wait, Explosive/Destructive Device, Torture, ORii. Use of Deadly Weapon

1. Generally: Item of substantial potential to kill2. Automatically infers malice as deliberate3. Must show intended use of deadly weapon

c. Intent to do Severe Bodily Harm: implied malice aforethoughti. Commits act which has been dangerous potential that causes death

2. Voluntary Manslaughter: usually involves intent to kill; the elements of murdermust be met before you can mitigate down to manslaughter for heat of passion orother mitigating circumstances

a. Heat of Passion killing: severe emotional disturbance provoked by anotherperson which would lead a reasonable person to perform the act (can be anyviolent, intense or enthusiastic emotionnot necessarily rage or anger)

b. Common Law Elements of Provocation Testi. Adequate Provocation - sufficient to arouse a reasonable man to heat

of passion


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1. Words are not enough unless informational words2. Trespass to Land not sufficient provocation, unless trespass t

a dwelling with people3. Common Law sufficient provocation acts: battery, adultery,

mutual combat, violent attack, wrongfully arrested, discoveradultery, etc.

ii. acts in heat of passion (subjective: actual provocation)1. Reasonable man would not have cooled off (objective)iii. did not cool off (subjective)

3. Involuntary Manslaughter: mitigate up from innocent homicide or no crime withunlawful act or criminal negligent homicide (no malice)

a. Unlawful Act: misdemeanor + unintended death/homicidei. Malum in Se Crimes: act can provide accountability for involuntary

manslaughter1. Exception: Suicide is malum in se, but no penal sanctions if

successful b/c there is not death of another (no actus reus)ii. Malum Prohibitum Crimes: some jurisdictions find malum prohibitu

+ some limitations = involuntary manslaughter1. Limitations from Malum Prohibitum Crimesa. Death must be foreseeable or natural consequence of

act (objective)b. Death is direct result of unlawful excess

i. i.e. driving 45 mph in a 25 mph zone4. Statutory Modifications

a. Degrees of Murderi. 1st Degree Murder (capital punishment possible)

1. Intent to kill with premeditation and deliberation2. Felony murder3. Lying in wait: concealment or ambush4. Torture or poisoning: pain endured over long time and intent

to inflict such painii. 2nd Degree Murder (capital punishment not possible)

1. Intent to kill without premeditation and deliberation2. Felony Murder (if the felony is not listed in the statute)3. Depraved heart/Reckless murder4. Intent to do Severe Bodily Harm

iii. Note: Voluntary intoxication can never get murder down tomanslaughter, but it can negate 1st degree down to 2nd degree murder

5. Buckets of Murder


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3. Felony Murder

a. Generally:i. Implied malice aforethought (malice implied from the intent to commit

the underlying felony)ii. Unintended death arising during felony with causal connection

b. Limitations of the felony murder rulei. Limited to felonies that are inherently dangerous

ii. must be guilty of the underlying felonyiii. Felony must be independent of killing

1. Felony used for conviction must be independent from the acts thcaused the murder

iv. Foreseeability1. Death must be a foreseeable result of the commission of felony

v. Res Gestae: things done before and after crime which are so closelyconnected with crime that considered part of the crime itself; crimecontinues until felon reaches a point of safety.

1. Act performed with a short period of time and distance fromfelony or causal connection b/t death and felony such that the actwas motivated or connected with the crime

vi. Killing of a co-felon aka redline view1. Liability for murder cannot be based upon the death of a co-felon

from resistance by the victim or police pursuit

c. United States v. Martinez

Adequate provocationNo cooling timeHeat of Passion/ExtremeEmotional DisturbanceImperfect Self - Defense

2nd Degree Murder(Intent/Reckless)Felony Murder

Knew better, didnt care

1st DegreeMurder(Intent)

InvoluntaryManslaughter

(No Intent)

Should have known better

VoluntaryManslaughter

(Intent)Premed/deliberateOR

Special victimsOR

Special methodsOR

Special felonies(depends on state

statute)


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i. Facts:1. s driving around Chicago with bombs, one bomb went off in

s (not Martinez) lap and he died2. All s charged with arson and under RICO3. The court treats this case like it is a felony murder case when it i

really an arson case involving explosives that had felony murder-

like provisionsii. Issue:1. Whether a co-felon can be sentenced under the felony murder

rule?iii. Holding:

1. If a felon dies by his own hand or b/c of co-felons conduct whenthe felons are committing acts in furtherance of a dangerousfelony, the co-felons are held responsible for the death

2. Restrictionsa. Death must be a foreseeable result of actions furthering th

felony

b. If a 3

rd

party kills co-felon (ie. Shopkeeper). D is not liablc. The death must be the foreseeable result of the felony a thco-felons are taking part in, not a foreseeable later felonythe eventual murderer undertakes on his own.

iv. Dicta:1. Moral luck

a. If you do something that may kill, the court hits you hardif you actually do kill. Your intention is same; luck differ

2. Consequentialisma. On the other hand, entire criminal system is

consequentialist, punish people as a result of their actions(not what was in their heart)

v. Purpose of felony murder rule1. Court wants more peaceful felons2. Gives criminals the ability to stop their crime so that no one will

get hurt6. Misdemeanor Manslaughter

a. Generallyi. An unintended homicide occurs during commission of an unlawful a

that is not a felonyii. Sometimes requires misdemeanor to be malum in se, and not merely

malum prohibitum.b. Requirements

i. A death directly related to the perpetration of the misdemeanor in away that is reasonably foreseeable. (natural & probable result)

ii. Causal connection requirements very by statec. The trend is to abolish this type of manslaughter charge

7. Criminal Negligent Homicide:a. Generally

i. criminal negligent behavior = unintended deathii. D acts with reckless disregard for human life and human life is lost

due to this reckless action


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1. It doesnt matter that the method of death was unforeseen.Recklessness absorbs causation.

iii. Requires GROSS deviation in care from what a reasonable personwould observe

b. Testi. High degree of Risk of severe bodily harm or death created by Ds

conduct (objective standard)ii. Reasonable person would have been aware of risk; andiii. Person dies because of this conduct

1. Consider the physical characteristics of person ( i.e. blind,deaf) Subjective Part

c. Balancing Testi. You evaluate the conduct, not the result

ii. Awareness or knowledge of riskd. Criminal Negligent Homicide v. manslaughter (2nd degree)

i. 2nd degree manslaughter1. awareness of risk accompanied by disregard

ii. Criminal negligent Manslaughter1. Failure to perceive risk8. Causation

a. Cause-in-facti. The s conduct must be the cause-in-fact of the result in other word

the result would not have occurred but for the s conductb. Common law Year and a Day Rule

i. Death of victim must occur within one year and one day from theinfliction of the injury or wound (this has been altered in many states

c. Superceding Factorsi. Breaks the chain of proximate causation between s act and victim

death1. The intervening action only becomes superseding if it is

unforeseeable.ii. remains responsible for all natural and probable consequences of

his actionsiii. If you injure a person, it is foreseeable that Dr. Dumbass will treat

them

XIV. INSANITYa. Constitutionality

i. You cant Execute the insaneever1. Violates the 8th amendment (cruel and unusual)2. English didnt do it either because they believed it prevented the D from interjecting

a last defenseii. The Affirmative Defense is not Constitutionally Protected

1. There is no constitutional requirement to allow an insanity defense. It is up to thestates to have one if they want.

b. General Rules of Insanity and Trial

i. Terms


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1. Insane = legal term2. Mental illness = psychological term

ii. Insane at time of offense

1. Insane at time of offense allows insanity defense (in most states)a. It does not matter that they are sane by the time of trial.

iii. Insane during captivity1. If a person was sane at the time of offense but becomes insane during captivity theycannot be executed

iv. Insane at trial

1. If a person is not sane at time of trial, they cannot go to trial. An incompetentdefendant violates due process

a. An insane person can be committed under a civil trial and be kept in theasylum forevereven for a small crime.

i. This makes insanity a dangerous defense. You can spend more time the asylum than you would have in jail.

v. The retarded are not insane

1. The retarded might be able to get a diminished capacity defense but not they dont funder the mentally ill defenses. You can execute them.vi. Procedural Issues

1. Verdicts

a. Not guilty by reason of insanityi. For insanity defense, all of the elements of the crime must be proven

ii. Even though the is going to get off with not guilty by reason ofinsanity, the will still be committed to an institution

b. Guilty but mentally illi. Jury thinks the threshold is not met

ii. Judge can order more tests and send the to penal institution or stathospital to serve out sentence

2. Bifurcated Trial

a. 1st part to determine if is guiltyb. 2nd part to determine if is insane

3. Ability to Decline Defense

a. As long as D is competent to stand trial a court may not sua sponte impose anot guilty by reason of insanity (NGI) defense on the D over Ds objection

i. Unless Ds waiver of NGI defense is clearly unintelligent andinvoluntary

c. Three phases where Insanity is important to criminal triali. Before Trial

1. Competency to stand trial is necessary [constitutionally protected]ii. During Trial

1. When insanity might be used as affirmative defense [not constitutionally protected]iii. After Trial

1. Scope of punishmenta. Execution

i. Must be able to appreciate why we are having them killed. We dontcare if they agree but cant kill them if they dont know why.

b. Continuing Civil Confinement


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i. Mental illness + dangerousness (to self or others) = requirements forcivil confinement

1. Having illness or dangerousness alone isnt enough.ii. Civil confinement means civil rules for burdens

1. insanity proven through preponderance of evidenceiii. If you were put in civil confinement because you committed crime

and were judged to have committed it because you were insane, if it determined you regained sanity, you have to be set free. (good luck)

d. The Insanity Testsi. Wild Beast

1. Old School if a D doesnt know what he does any more than a wild beastii. MNaughtenTest

1. If D, due to mental illnessa. Does not know nature and quality of act he was doing (ie. Strangling a perso

when you think you are squeezing a grapefruit) ORb. If he did know what he was doing but didnt realize it was wrong (ie. Fendin

off invading enemy soldiers that are actually just innocent people).

2. Problemsa. A psychologist cant tell if D really knew right from wrong, only that therewas mental illness

b. The D has to be balls out crazy to fit into this test.iii. Irresistible Impulse

1. Usually used as a supplement to MNaughten rule2. If D is driven by such a defect of reason that:

a. He couldnt control his conduct even though he knew what he was doing anthat it was wrong

b. Generally focused on sudden impulse, not long term broodingiv. Durham Test

1. D is not guilty when criminal act is product of mental illnessa. Problemsi. Psychologists become the jury in finding the D culpable.

ii. Mental defects are just magic labels and introducing new labels canexcuse psychopaths from their crimes even though nobody wants to.

v. MPC Test (aka ALI test)

1. If mental defect robs the D of sufficient capacity to appreciate the wrongfulness ofhis conduct, then the D is not guilty by reason of insanity

a. Lack of sufficient capacityi. D has to establish more than mere any incapacity but does not hav

to establish total incapacity.

b. Appreciatesi. Knowing that an act is wrong but not appreciating why it is wrongshows a D is less culpable than if a D appreciates the wrongfulness ohis actions.

2. MPC test clarificationsa. Recidivism and addiction do not in themselves justify a mental defect for

acquittalb. An abnormality manifesting itself in repeated criminal or anti-social activity

is not necessarily a mental defect (ie. Pedophiles)


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c. A D can be excused if he lacks substantial capacity to conform his conduct tthe requirements of law

vi. FEDs use a revised MNaughten with Irresistable Impulse standarde. NOT QUITE INSANITY

i. Deific Decree

1. Not the same as the insanity defense. On the other hand, the person believes strange

things about the world that could support the overall picture of insanity.2. Two versions of the rulea. Washington

i. An exception to the MNaghten rule, akin to an irresistible impulse.you hear a voice, you have no choice. Goes to the persons volition,not their cognition.

b. Coloradoi. Partial evidence that the person would have thought that society

would approve his actions, once they learn of the reason.3. Juries dont buy the deific decree defense. They actually get incensed by it, its a

cop-out or blasphemous. Its a good way to lose a case for the .

ii. DIMINISHED CAPACITY1. Definition

a. While Insanity is an affirmative defense, diminished capacity is a partialdefense that knocks out mens rea requirement to drop the level of punishme

i. Usually used to negate specific intent. Can be used to negate generalintent but that is really hard to show.

b. If diminished capacity is allowed, the evidence used in a failed NGI defenseto disprove mens rea.

2. Not all jurisdictions allow the diminished capacity defense.a. Diminished Capacity is more often used in jurisdictions that use the harsh

MNaughten standard because the court wants to find a way to see the D asless culpable.

i. If the jurisdiction uses an easier to reach insanity test, it does not neeto employ diminished capacity as a cushion

b. If a jurisdiction does not allow diminished capacity and the defendant is notjudged insane, they have to face trial like any other defendant

3. Proving Diminished Capacitya. Burdens

i. Burden of Production1. Must offer something to bring the insanity argument into the

mix at all. (Not a heavy burden, but must show your hand)ii. Burden of Persuasion

1. The argument has to be genuine. Enough that it could beconsidered

iii. Burden of Proof1. This burden shifts in levels and who it is put upon. In fed it

usually stays with D. Can be preponderance, reasonable doubor even clear and convincing.

b. Psychiatric evidencei. Some courts do not allow psychiatric evidence in diminished capacit

part of trial (even if it was in NGI). This is because they believe that


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intent is shown through circumstances of crime, not shrinksophistry

c. When to bring it upi. If a D doesnt bring NGI or diminished capacity at start of trial, the D

cant try to bring it up later to introduce insanity evidence as anelement buster. Its too late.

XV.DEFENSESa. Introduction to Defenses & Justifications

i. Some basic defenses1. Alibis

a. I didnt do it2. Statutory defense

a. The statute under which I am charged does not apply to my activity3. Imperfect Defense

a. I did it, but I should get less punishment than usual because I did it withmitigating circumstances

4. Affirmative Defense

b.JUSTIFICATIONSi. Definition

1. When the commission of the proscribed act is justified, and therefore, notappropriate for criminal sanctions

ii. Necessity1. Choice of evils defense a balancing of harms

a. To allow a necessity defense the D must show:

AFFIRMITIVE DEFENSES

JUSTIFICATION EXCUSE

Broke the law, but itwas righteous

NecessitySelf DefenseDefense of Others

Broke the law, but itwas forgivable

InsanityEntrapmentDuress

I did it but escape liability completely for some reason


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i. They were forced with a choice of evils and chose the lesser evilii. They acted to prevent imminent harm

iii. They reasonably anticipated a direct causal relationship between theiconduct and avoiding the harm

iv. They had no viable legal alternatives to breaking the lawv. The legislature has not acted to preclude the defense by a clear and

deliberate choice regarding the values of the action2. Necessity and legalitya. Legislative Intent

i. There is never a necessity defense when the legislature has alreadymade a determination of values

1. ie. Congress has said marijuana is not fit for medical use,therefore it is never a necessity to use marijuana medically

b. Federal Lawi. Under Fed Law, it is questionable that there is ever a necessity

defense that is not provided by statute3. Random Stuff about Necessity

a. MPC invalidation of necessityi. Under MPC, a necessity defense is invalidated if the situation thatbrings about the necessity is caused by negligence.

b. Civil Disobedience and Necessityi. Necessity might be able to be used as a justification for direct civil

disobedience, butii. There is never a necessity justification for indirect civil disobedience

iii. SELF DEFENSE1. Generally

a. Self Defense can excuse a wrongful act (b/c of mistake) or justify an actionthat would normally be unlawful The result is the same

2. Testa. A person is justified in the use of force against an aggressor when:

i. It reasonably appears to him that that the use of force is necessaryii. To defend himself or another against an aggressors imminent use of

unlawful force.iii. And there is no opportunity to retreat

3. Subjective/Objectivemostly subjective

a. Self Defense is subjective in that a jury must put themselves into thedefenders place as far as size, gender, abilities and temperament.

b. Self Defense is objective in that the jury must decide what a reasonableperson of that size, gender, etc. would do in the same situation

4. Defense of Othersa.The relationship must be necessary in order to come to the aid of a 3rd party

i. At common law, this was limited to the protection of:1. relatives; and/or2. household members

ii. MPC: you can aide a stranger in peril if:1. there is a reasonable belief that force is needed; and2. the threat is immediate

b. Alter Ego (Minority rule)


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i. puts themselves in the shoes of the person they are defendingii. If the person they are defending did not have the defense of s/d, then

there is no privilege for 5. Duty to Retreat

a. Self Defense can only be invoked if there is no opportunity to retreat to safeand avoid the use of force

b. Defense of others and retreat:i. Its hard to retreat and still defend another person, so the duty to retreis not present when defending others.

c. Castle Doctrine

i. Generally1. There is no duty to retreat when you are in your home or

dwelling and the force used in self defense can be lethal2. The defense only applies inside the dwelling and not against

people fleeing in your yard with your stuffii. Exception

1. Cohabitant

a. There is no castle doctrine self defense justificationwhen the person defended against also lives in thehouse of the defender

2. Spring gunsa. There is no justification for the use of spring guns to

defend your home unless the incredibly rare eventoccurs that you are in imminent danger when thespring gun shoots the intruder

iii. Modern Trend

1. Some jurisdictions are expanding the castle doctrine to allowlethal force whenever a person feels reasonably threatened

6. Proportionality

a. The use of force must be proportional to the imminent threatb. If force used is an escalation in the level of force in the conflict its not perfe

self defense anymore.i. Escalation trade off

1. If Fred attacks Barney with his fists and Barney retaliates wita hitting Fred with a rock, Barney is not justified in hisescalation of force.

a. If Fred fends off Barney with a his own rock attack,Fred is justified.

7. Self Defense and Arrest

a. You do not have a right of self defense against an arresting officeri. Even if the arrest is unlawful

1. Unless:a. The arresting officer is making an unlawful arrest and

is putting your life in danger

iv. IMPERFECT SELF DEFENSEa. Definition

i. There is an unreasonable fear of imminent threat ORii. There is reasonable threat but retaliatory force is unreasonable AND


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iii. D kills someone out of this fear.b. How it works

i. Many jurisdictions do not allow this defense at allii. When allowed, this defense can lower murder to voluntary

manslaughterc. MPC doesnt care about Imperfect Self Defense

i. Since the MPC cares about mental states, an imperfect self defensecase automatically implies that there was no malice so its down tomanslaughter anyway.

v. DEFENSE OF PROPERTY1. Defense of Property

a.Non-deadly force: justified in use when inside ones dwelling, if the reason isto prevent anothers entry onto their premises/property by trespass or if theentrant is going to attach.

b. Note you can not use deadly force when only protecting your property andnot your person

2. Deadly force: justified when there is a reasonable belief that you are trying to

preventa.Arson;b. A felony; orc.Violent entry/attack on your person

3. Regain propertya.COMMON LAW:: force could not be used to regain possession of property

wrongfully taken, unless person is in immediate pursuitb. MPC: allows reasonable force when regaining property in certain instances

vi. LAW ENFORCEMENT DEFENSE -

DEFENSE OF CRIME PREVENTION1. Justifiable for the police to use force to prevent a crime.

a. Deadly force may never be used to prevent a misdemeanor may only

be used to try to prevent a felony. Only reasonable if victim is using

deadly force.

b. Original CL rule deadly force may be used if necessary to prevent

felony.

2. Fleeing Felon Rule

a. At common law, a citizen could kill a fleeing felonnot anymore

b. Even Police cannot kill a fleeing felon unless there are others at riskor the felon was a violent offender

3. Citizens Arrest

a. Offense committed in defendants presence

b. Felony

c. Reasonable belief this is the right person

d. Use of force must only be the reasonable amount to keep person from

fleeing


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c. EXCUSE

i. DURESS (aka Compulsion)1. Definition

a. A person is faced with a choice between suffering death or serious bodilyinjury and committing some lesser crime. The person cannot be heldresponsible for the lesser offense

i. Duress never allows an intentional killing.ii. If you are under duress, you cannot be charged with felony murder

2. Duress Test (elements vary by state but in general)a. Compulsion or Coercion by another, who isb. Threatening w/ imminent death or severe bodily harm

c. Where a reasonable person would feel compelled to commit the crimed. The defendant must not willingly put himself in the situatione. The D (without putting himself at risk) must not have a reasonable legal

alternative to violating the lawf. There needs to be direct causation between illegal conduct and avoiding harg. D must not maintain illegal conduct any longer than necessary to avoid harm

3. Fed Duress Test

a. Immediate threat of death or severe bodily harmb. Well grounded fear that threat will be carried out if crime isnt committedc. No reasonable opportunity to escape threatened harm

4. Duress for aggravated prisoner escape

a. State v Irons (dont get dry heaved)i. Pichon Test (on Drus test)

1. prisoner faced with threat of imminent death or severe bodilyharm

2. no time to complain to authorities or complaints are futile3. no time to resort to courts4. escape doesnt involve violence5. Prisoner immediately reports his situation when he is safe

ii. Some courts weigh the Pichon elements in aggregate, others requirethat all are met

5. Random stuff about Duress

a. Immediacyi. Can be tricky. Just because a threat is certain does not mean it isimminent

b. Difference B/T Duress and Necessity


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c. Duress and Forced Testimonyi. The court can hold you in contempt and punish you if you dont

testify at criminal trial. Claiming you will get hurt if you testify is nodefense.

ii. ENTRAPMENT1. Two Tests i. usually they get same result, but not always.

ii. Supreme Court allows both, but favors subjective test (so does Dru)b. Subjective Test (Majority view & S.CT.)

i. Predisposition centeredii. Protects Unwary innocent, but not unwary criminal

1. Focus on the actor was he induced into criminal act? Did thpolice instigate the action themselves.

2. Allows s prior bad acts was there a predisposition to doact beforehand?

3. Question for the jury

c. Objective Test (Minority View 14 states and MPC)i. Police Action Focusii. Punishes police outrageous conduct with purpose to deter bad condu

1. But for the police conduct, would the D commit criminal act2. If police used outrageous conduct its entrapment3. Would police conduct induce a reasonable person to engage i

the activity?4. Do not look at s subjective relevant acts5. Question for the judge

Duress v. Necessity(on test)

DURESS NECESSITY

Takes 2 or morepartiesInvalidates mensreaConduct is done toavoid to self from

harm from human

Only takes onepersonInvalidates ActusReusConduct is done inthe interest of the

general welfare


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2. Entrapment is an affirmative Defense3. Private Entrapment?

a. There is no private entrapment defense. It must be an under cover agent4. Outrageous conduct defense?

a. There is a separate due process defense of Outrageous Conduct but it almostnever separate from the Entrapment Defense

b. The government can be punished for outrageous conduct while the defendanis still guilty because of outrageous conduct

5. ENTRAPMENT BY THE NUMBERSa. General

i. Entrapment Defense Use is declining1. Why?

a. The clearer the rule the less it is needed b/c nobodybrings cases on either side when they know they aregoing to lose

b. Exclusionary Rulesi. Fruit of the poisonous tree - Police are smart

and plan around their stings around entrapmenrules so they dont get in trouble

c. The odds are against a D using the entrapment defensb. Testable Terms

i. Vicarious Entrapment1. We entrap a person who knowingly entraps others

a. (Example of karate instructor who makes deal withfake Al Queda and then starts training interestedwannabes)

ii. Entrapment Estoppel1. Asking an undercover agent if something is legal or not. He

says it is. You do it. You are busted for doing it by agent.a. This defense does not usually work.

d. OTHER DEFENSESi. INTOXICATION

S. says this is usually not an excuse/defense. It negates spec. intent. Can beused to rebut Ps argument of mens rea.

1. Voluntary Intoxication (MPC Self Induced Intoxication)a. Intoxication is not an excuse.b. But, voluntary intoxication can serve as a mens rea defense

c. Intoxication may negate the mens rea required in the definition of in thecrime, therefore not proving all elements of the crime.

d. Law distinguishes between general intent and specific intent crimese. Voluntary intoxication is not a defense to a general intent crimef. Specific intent offense - most jurisdictions will hold that voluntary

intoxication is a defense if at time of offense Ds condition because ofintoxication was so extreme that he lacked the specific intent required in thedefinition of the crime.

2. Involuntary Intoxication Any of these


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a. The person ingested the intoxicant innocentlyb. Person forced to take the drugc. Person taking a prescribed medication and has an unforeseeable response du

to allergic reaction.d. Defense permitted in specific and general intent crimes

3. Note: Defense also permitted if the intoxication causes to become insane. If ca

satisfy insanity requirements the will be acquitted. (acquitted on invol intox)ii. Mistake of Fact

1. General intent crimes- must be a reasonable mistake2. Specific intent crimes- any mistake, reasonable or unreasonable, is a defense

iii. Mistake of Law1. No defense unless crime requires knowledge of some aspect of law other than the

existence of the statute making it a crimea. Exceptions:

i. Defense if statute not readily availableii. Defense if reasonability relied on an official interpretation of the

law which was later declared invalid

XVI. INCHOATE CRIMESa. ATTEMPT

i. TEST

1. Was there specific intent to commit crime? (Very testable)2. Has the actus reus of attempt been carried out? (hard to test b/c court is confused)

ii. REQUIRES SPECIFIC INTENT

1. The specific intent to commit a crime and bring about certain consequencesa. Requries specific intent for every element of the crime

2. Attempt to commit a negligent crime is illogical

a. You cant intend to do something accidently3. Attempt to commit strict liability crime

a. Although the strict liability crime may not require intent itself. You can havspecific intent to commit a strict liability crime and that is still attempt.

4. SPECIFIC INTENT HYPOa. A specifically intends to kill Qb. B specifically intends to do grave bodily harm to Qc. C has a depraved and malignant heart towards Q

i. If A, B, or C killed Q there would be 1st degree murderii. If Q is not killed then only A gets attempted murder

5. Primary v Secondary Intent

a. Primaryi. Intent to do what is actually done

b. Secondaryi. Intent to do what D thought was being done

1. If D subjectively believes that his actions will bring about thecriminal result he can be charged with attempt even if his ideis wrong.


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2. MPC if D subjectively believes completely absurd idea wilbring about a crime (ie. Voodoo chant to kill someone) thenthe court will not consider that an attempt

iii. Common Law Attempt

1. Very restrictive. Requires an overt act. Its hard to get attempt at common law.2. Basically involves all the actus reas necessary for the crime except criminal result.

iv. MPC Attempt1. Easier than common law2. Taking a substantial step towards commission of a crime that is strongly

corroborative of the actors criminal purpose.v. Overt Act (Actus reus): requires performance of act toward the crimes commission

1. The must have committed an act beyond mere preparation for the offense.2. Overt Act Tests

a. Proximity Test (Common Law) (strictest test)i. The courts evaluate the act based on how close the came to

completing the offense.ii. Emphasis: what is left to be done

1. Determined under an objective testa. therefore, you cannot use the s statements orconfessions about what was left to be done

iii. Note: in order to commit an attempt at Common law:, there was amuch higher threshold to meet than there is with the MPC

b. Substantial Step Test (MPC and current trend) (more lenient for prosecutioni. Substantial step that will culminate in committing criminal activity

ii. Emphasis: what has already occurred1. Determined under subjective test

a. Therefore, you can use s statements to corroboratethat took substantial steps towards the commissionof the intended crime

iii. Public Policy Rationale: provides an opportunity to intercede thecrime at a point further from the harm

c. Probable Distance Test (generally disregarded today)i. reached a point where a normal, law-abiding citizen would have

stopped, but the continued beyond this point.1. This is a point at which it would be unlikely that the would

voluntarily stop what they have already undertakend. Equivocality Test

i. The acts of the create a conclusion that a crime is about to happen1. An innocent bystander, without knowledge of the events,

could tell what was about to happen.vi. Attempt and Assault RANDOM

1. Elementsa. Present ability to do crime

i. Present ability does not have to be factually based. If D subjectivelybelieves the ability is present that is enough

b. Specific intent to commit crimei. You cant assault someone with an unloaded weapon. The specific

intent is not there


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ii. If gun jams, or bulletproof glass stops the bullets there is an assaulbecause specific intent was present

vii. Johnsons Notes

1. Attempt as a crime serves no deterrent value and that prevention of crime is themodern policy goal. He has a problem with that. Most lawmakers think the laws arefor deterrence and retribution. Prof thinks real prevention is doing away with guns,

knives, etc.

viii. Defenses to Liability for Attempt1. Impossibility

a. Inherent impossibility are actions by the that are so unbelievable, it isunreasonable to believe that a crime will be completed.

i. Examples secondary intent1. Voodoo Doll2. Paying a fortune teller $500 to cast a spell on a person which

is intended to kill themb. Legal impossibility is a defense if those things that the does or intends to

do would not actually be a crimei. Only covers those situations in which s set out to do things they

mistakenly believe constitute crimesii. Examples

1. fishes in a pond behind the neighbors house and believes iis illegal to fish there, but it is not

c. Factual impossibility is NOT a defense to attempti. is unable to accomplish what he/she has set out to accomplish b/c

unknown or intervening act.ii. This a defense to the Crime, but not to the attempt

iii. Examples

1. B steals goods from A. B is arrested and the goods arerecovered. The police then obtain permission from A to usethe goods to trap C, a person suspected of buying stolengoods. Under police orders, B takes the goods to C and offersto sell them to him, specifically telling C that they are stolen.C buys them from B. Since the goods are no longer actuallystolen (because they are being used with As permission), C inot guilty of receiving of receiving stolen goods.

a. However, C is guilty of attempt to receive stolen good(in most jrds), b/c C has engaged in the conduct thatwould constitute receipt of stolen property if the

circumstances were as he believed them to be.2. is impotent but has intent to rape and seizes a female in

furtherance of that intenta. Since had the apparent capacity to succeed, he only

failed because of a factual impossibility. Therefore, is guilty of attempted rape.

2. Abandonment


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i. Common law: once all the elements of an attempt were made out, could not abandon the attempt

ii. MPC: can abandon an attempt if:1. D must abandon effort and not complete attempt2. Must be motivated to abandon voluntarily

a. Not motivated because its hard or there is

circumstantial fear of getting caughtb. Not motivated to just put it off until laterb. CONSPIRACY

i. Elements1. An Agreement AND2. Intent to engage in criminal activity AND3. ANY overt act furthering that intent

a. The any act provision is very easy to reach, much easier than attemptii. Conspiracy is not a lesser included offense

1. Many crimes can be absorbed by a bigger crime, but conspiracy can be chargedwhen there are subsequent big crimes developing from that conspiracy

iii. Conspiracy and Class of Person Charged1. MPC does not charge people with conspiracy if they are part of class that the statutewas supposed to protect

a. Cant charge a woman with Mann act because it is supposd to protect womafrom being sold into slavery

iv. Mens Rea:1. Intent to enter into an agreement and2. Intent to achieve the objective of the agreement

a. Knowledge can become intent as a matter of lawi. If you know that something is fishy and allow yourself to benefit fro

the fishiness, you can have the intent to enter into the unlawfulagreement that you did not have direct knowledge of

v. Actus Reus1. An agreement b/t two or more people to commit an unlawful act or to accomplish a

lawful purpose by unlawful meansa. Common law: had to be a bilateralagreementb. MPC: can be a unilateralagreement

i. If only one party intends to agree and that actor believes they areengaging in a conspiracy but the other actor does not, then theintending party can still be convicted of conspiracy

2. 2 or More People Exceptions:a. Common law: Husband and wife could not conspire because they were

considered 1 unit3. Liability for Co-Conspirators

a. Co-conspirators can be liable for crimes committed by other co-conspiratorseven if the crime was not part of the original conspiracy when the crime is:

i. A natural and foreseeable consequence of the conspiracy; andii. Is committed in furtherance of the conspiracy

4. Group Liability

a. There can be a lot of individual conspiracies that are part of a larger

conspiracy. You cant charge everyone as being part of the big


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conspiracy unless the person is aware that they are part of a bigger

operation.

i. I conspire to load drugs on boat = I am part of big drug

smuggling conspiracy

ii. I conspire to cheat on real estate deals with my agent = I am

not part of the agents giant real estate cheating scheme.b. Spokes in the Wheel

i. Everyone is in furtherance of the conspiracy. There is one

conspiracy such as one main drug deal

c. Links in a Chain

i. A assists others in getting fraudulent bank loans. Each are

considered separate conspiracies.

vi. Defenses

1. Whartons Rule

a. There is no crime of conspiracy when underlying crime necessarily

involves 2 or more folks.

i. Examples dueling requires 2 parties, adultery = 2,

ii. 3rd party exception: there will be a conspiracy if an additiona

party is brought into the agreement who is not a necessary

participant

1. Therefore, if a 3rd party participates in the dueling or

the adultery, there is a conspiracy

b. MPC

i. Does not use Whartons rule because it allows unilateral

agreements

c. S.Ct.

i. Does not allow a Whartons rule defense against organized

crime charges

2. Abandonment

a. Common law

i. Abandonment is not a defense to conspiracy under common

law

b. MPC

i. Abandonment is only defense to conspiracy if you attempt tothwart the crime

iii. Justice Jacksons beef with conspiracy

1. Too vague

2. Lax rules for evidence

3. Venue/forum shopping

a. Enables prosecution to make the case costly to defend or inconvenient

4. Misdemeanors elevated to felonies


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5. Mass trials (Jackson part of the Nuremburg trials)

a. Guilt by association

3. Play off each other

vii. Aiding & Abetting

1. Mens Rea must have intent for the crime

a. If intent after the crime then not aiding & abetting charged w/lessecrime such as accessory

2. Cannot be convicted of being an accomplice unless the principle was

convicted first

3. CL recognizes four ways in which one could culpably participate in a felony

a. Principle in the 1st Degree was the immediate perpetrator of the

crime

b. Principle in the 2nd Degree or abettor, was one actually or

constructively present at the scene of the crime who aided or

encouraged its commission w/o directly participating.

c. Accessory before the fact was on who aided or encouraged the

commission of the felony w/o being actually or constructively presen

at the time of perpetration.

d. Accessory after the fact one who knowingly assisted the felon to

escape or to avoid punishment

XVII. RICOa. Definition

i. Basically

1. Racketeering is any act that violates another federal act2. There have to be 2 or more racketeering acts in 10 years

a. You can have wire fraud and conspiracy to commit wire fraud and haveRICO

b. Enterprisei. Continuing Unit

ii. Common Purposeiii. Identifiable Structure

c. Two or more Predicate Actsi. One or more related acts of racketeering necessary to establish a pattern

ii. Must constitute a pattern

1. Feeling of recurrence = some racketeering activityd. Other items to note

i. Investment of racketeering profitsii. Acquired Interest

iii. Conducted enterprise via racketeeringe. Stephensons observations

i. RICO was one of the characters in the first Hollywood mafia movie.ii. RICO is overbroad like vagrancy was

iii. Included mail fraud and other provisions related to Jimmy Hoffa inclusion of mail fraud


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iv. Steep penalties (up to 20 years) v. federal conspiracy charges with a 5 year maxv. Can be charged with conspiracy to violate RICO

vi. RICO can allow stuff to be seized as instrumentality in crime this pisses mob bosses offthat can get underlings to take the fall because they still lose their stuff

vii. More civil suits then criminal1. gives treble damages & attorneys fees if person does RICO against you

XVIII. Crimes against Propertya. Theft overview:

i. In most jrd, theft is a consolidation of the unlawful taking crimes of:1. larceny2. embezzlement3. robbery4. false pretenses

ii. elements must prove:1. intent to steal; AND2. full set of elements of one of the theft crimes listed above

iii. At common law, theft itself was not a crime a person could be charged withiv. Prosecution must notify the of what common law theft crime he is being charged with sothat knows what to defend against

1. can be charged in alternate courts, but prosecution must choose one2. prosecution can amend for specific crime to conform with proof as long as it does

not prejudice the s right to a fair trial3. sometimes the pleading covers all 4 common law offenses listed above

Activity Method Intent Title

Larceny Taking and asportation of property from possession ofanother person

Without consent orconsent obtained by fraud

With intent to steal Title does notpass

Embezzlement Conversion of property heldpursuant to a trust agreement

Use of property in a wayinconsistent with terms oftrust

With intent todefraud

Title does notpass

False Pretenses Obtaining title to property By consent induced byfraudulentmisrepresentation

With intent todefraud

Title passes

b. LARCENY is: taking and carrying away of tangible personal property of another by trespass withintent to permanently (or for an unreasonable time) deprive the person of his interest in the propert

i. Trespassory: larceny is a crime against possession, not custody or ownership.1. Master/Servant

a. High employees = possession

b. Low employee= custodyc. Exceptions

i. Low employee has possession if borrowed item for personal useii. Third person exception: when a person gives an employee (high or

low) a chattel for the master, the employee has possession (rule isintended to protect innocent third parties)

2. Breaking Bale and breaking bulka. Breaking Bale: If a carrier had lawful possession of a package or bale, but n

the contents, and opens the parcel or bale and takes part of the contents, then


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there is trespass to constructive possession of the goods inside, so could beguilty of larceny

i. Note: if the person steals the entire package which they wereentrusted with, then only embezzlement (not larceny)

b. Breaking bulk: if a carries was entrusted with the transportation of goods bywagon (or UPS truck), he has possession of the wagon and the goods, but:

i. If he took some of the packages contained within, the guilty oflarceny for breaking bulkii. If stole the whole vehicle, the embezzlement

3. Transaction in owners presencea. If the owner delivers property to the as part of a transaction which the

owner intends to be completed in his presence, the receives only custodyand the owner retains constructive possession

4. Continuing trespassa. When takes property fraudulently, but with no felonious intent, the trespas

continues so that if the develops the intent to steal at some point later, thenthe larceny will be complete

5. Larceny by tricka. One obtains lawful possession of owners property (but not title) by fraud ordeceit and with felonious intent

i. Owner retains constructive possession and larceny has beencommitted

b. Intent must form prior to lawful possession6. Mistaken delivery

a. If intention of is innocent then subsequent appropriation is not larcenyi. If you KNOW of the mistake at the TIME OF THE TAKING, you

must also have the INTENT TO STEAL in order to have larceny7. Mislaid or lost property

a. If owner mislays property or loses property retains constructive possession oit.

b. The finder commits larceny only if he has a clue of ownership and the intentto deprive.

i. Even if takes the property with the intent to restore it is not larceny,even if he changes his mind and keeps it.

ii. Taking ( caption)

1. No caption/taking if thief strikes or hits you which makes you drop your keys and

then they come back later to pick them up.

2. If you fraudulently sell to innocent agent still taking.

iii. Carrying away (asportation)

1. Can be tipping over a barrel to pour something out.

2. Driving, riding, rolling, leading

3. Some jurisdictions have higher penalties for taking from the person vs. from their

house, yard, car.

iv. Personal Property

1. Stocks, bonds, intellectual property (this did not count at CL), money, real property

computer data, computer program, thing in action,


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c. Embezzlement- fraudulent conversion of personal property of another by one who isalready it lawful possession of it or entrusted with it

i. Fraudulent: intent to stealii. Conversion of: requires some affirmative act which is in direct conflict or grossly

antagonistic with the rights of the owner OR outside the scope of bailees job or duty1. intent to convert after lawful possession is gained

2. more than just carrying away must convert to own useiii. Personal property

1. tangible property; and2. intangibly property (anything of value and movable)

iv. Of Another1. Common law: cannot embezzle from self or co-owner (spouse)2. Today: can embezzle from co-owner, joint tenancy, partnership, corp. etc

v. By one who is already in Lawful Possession of it or entrusted with it1. Common law: had to have been entrusted with the property by or for the owner

(fiduciary relationship)a. Entrusted: property committed r surrendered to with confidence regarding

his care, use or disposald. Robbery: felonious taking of personal property in possession of another from his person or

immediate presence and against his will, accomplished by force or feari. Elements: Larceny + the following

1. Taken from person or presencea. Within his/her control or reachb. Within the area that they could have prevented the taking

2. Violence, Intimidation, or Force causing fear of intimidationa. Force

i. Must not be slight, but requires a struggleii. Can be accomplish by drugs or alcohol overcoming the person if

encouraged or poisoned by iii. Subsequent chase

1. Common law: wasnt force b/c was subsequent to the taking2. Today might be considered force

b. Intimidationi. Must be immediate harm to the actual victim or someone in the

presence of the actii. Threats must induce the relinquishment of the property

iii. The apprehension of the victim is judged subjectivelyc. Aggravated Robbery

i. Inflicting SBH or death; or

ii. Use of a deadly weapone. Extortion

i. Common law: consisted of the corrupt collection of an unlawful fee by an officer under

color of his office

ii. Modern Definition- blackmail

1. definition- obtaining property from another by means of threat

a. threats need to involve immediate or physical harm


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b. property need not be in victims presence

f. False Pretensesi. False representation of a material present or past fact;

ii. Which causes the victim;iii. To pass title to;iv. His property to the wrongdoer; andv. knows his representation to be false and intends to defraud the victim

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