Criminal
Law Outline
1)
FAIR WARNING
a)
You should not be held liable for conduct which was not
criminal at the time committed
b)
Public is on constructive notice of what the law is
c)
Prohibition against retroactive criminalization
i)
Judicial creation of common law crimes (reception: 1850)
ii)
Cases of first impression
iii)
Reversal or expansion of prior construction
d)
Prohibition against Vagueness
i)
Fair notice—due process demands that a person of
ordinary experience be offered a reasonable opportunity to know what is
prohibited and act accordingly
ii)
Judicial construction of Statutes
(1)
An unforeseeable judicial enlargement of a criminal
statute, applied retroactively, operates precisely like an ex post facto law,
such as Art. I, Section 10 of the Constitution forbids
(a)
Foreseeable change in judicial construction =
constitutional
(b)
Unforeseeable change in judicial construction =
unconstitutional
(2)
Rules of Statutory Construction
(a)
Criminal statutes must be strictly construed in favor
of D
(b)
With ambiguous statute, court should look to leg.
intent (use CL, leg history)
(3)
Void for Vagueness Doctrine (Bowers)
(a)
Penal statute must be sufficiently explicit to inform
those who are subject to it what conduct on their part will render them liable
to its penalties
(b)
A statute which either forbids or requires the doing of
an act in terms so vague that men of common intelligence must necessarily guess
at its meaning and differ as to its application violates due process of law
iii)
Adequate Guidelines
(1)
Statute must provide adequate guidelines to law
enforcement officials so that their discretion to arrest someone is not overly
broad
(2)
Crimes of Status
(a)
Crimes that require only that one be something—a
vagrant, a common thief, a prostitute—without any proof of specific
acts—sleeping in a doorway, picking a pocket, exchanging sex for money
(b)
Punishment of these crimes may constitute cruel and
unusual punishment or violate substantive due process requirements
(c)
Model Penal Code 250.6 Loitering or Prowling: A person commits a violation if he loiters or
prowls in a place, at a time, or in a manner not usual for law-abiding
individuals under circumstances that warrant alarm for the safety of persons or
property in the vicinity. Among the
circumstances which may be considered in determining whether such alarm is
warranted is the fact that the actor takes flight upon appearance of a peace
officer, refuses to identify himself, or manifestly endeavors to conceal
himself or any object. Unless flight by
the actor or other circumstances makes it impracticable, a peace officer shall
prior to any arrest for an offense under this section afford the actor an
opportunity to dispel any alarm which would otherwise be warranted, by
requesting him to identify himself and explain his presence and conduct. No
person shall be convicted of an offense under this Section if the peace officer
did not comply with the preceding sentence, or if it
appears at trial that the explanation given by the actor was true and, if
believed by the peace officer at the time, would have dispelled the alarm.
e)
Riot
i)
When at least three assembled persons, in a violent or
tumultuous manner, act together to carry out a crime or trespass (or a lawful
purpose if breach of the peace results)
ii)
Misdemeanor at common law
f)
Disorderly Conduct:
Punished by statutes which may specify things such as creating
unreasonable noise in public places, obstructing free passage in public areas,
or overzealous solicitation of members of the public, public drunkenness
2)
Assault
a)
Three Types:
i)
Criminal Battery: an unprivileged touching of another which is
either (a) intentional, or (b) unintentional, but the result of
‘reckless’ conduct of D or possibly (c) unintentional, but he result of D’s
commission of an unlawful act which did not involve ‘recklessness’
(1)
AR: touching
(2)
MR: intentional,
reckless, result of an unlawful act
ii)
Attempted Criminal Battery: requires that (a) there be an attempted
unprivileged touching of another which comes near to achieving its objective
and (b) that D (actually) intends to commit a battery, and possibly
(c) that D must have the present ability to commit a battery when the touching
is attempted [requirement (c) not in Maryland]
(1)
AR: attempted
touching
(2)
MR: intent
iii)
Civil or tort assault: conduct by D which places V in (prospective)
reasonable apprehension of immediate bodily harm, and D must intend his conduct
to cause such apprehension or such harm [not recognized by all jurisdictions]
(1)
AR: D’s
voluntary conduct and production of the stated result
(2)
MR: Intent
b)
What is a touching?
i)
Direct: hitting
someone yourself or with an object—battery
ii)
Indirect:
hitting horse causing rider to be thrown and injured—battery
iii)
In Maryland,
offensive touching is a battery
iv)
Other battery situations: poisoning, creating a situation where V
injures himself
v)
Example
(1)
Saul sees Vic asleep in the woods and decides to
frighten him by throwing a stone to hit the tree near Vic’s head. The stone actually grazes Vic’s hair without
awakening him. [criminal battery]
(2)
Saul then decides to practice to improve his aim by
seeing how close he can come to Vic’s head without actually hitting him. His second stone hits the tree near Vic’s
head, and the sound awakens him. Saul
hides. Vic sees the two stones, believes
that someone has attacked him and run off, and is frightened by his narrow
escape. [no crime]
(3)
Saul then reappears and raises his arm as if to throw,
but, in fact, unknown to Vic, has not stone in his hand. As Saul moves his hand in a throwing motion,
Vic runs away to avoid being hit. [could
be liable for tort assault if Saul intended to frighten Vic]
(4)
Saul picks up a third stone, throws it at the running
Vic, and misses. Vic never realizes that
this stone has been thrown. [attempted
criminal battery]
c)
What is unprivileged?
i)
Three categories where you are not criminally liable
for assault:
(1)
Justification:
self-defense, necessity, defense of others
(2)
Excuse: infancy,
insanity, duress
(3)
Privilege/Consent of Victim
(a)
Rape
(b)
Larceny (CL)
(c)
Consent of the victim is a defense in ordinary physical
contact blows incident to sports sanctioned by the state: football, boxing, wrestling, etc. (fighting beyond what is customary is
battery)
ii)
When is there consent?
(1)
If touching is injurious, consent is not a defense
(2)
If touching is offensive, consent is a defense
iii)
Hypothetical: D
points gun at V
(1)
And the gun is loaded
(a)
And D knows it is loaded [tort assault; with intent
attempted criminal battery]
(b)
But D thinks it is not loaded [possible tort assault]
(2)
And the gun is not loaded
(a)
But D thinks it is loaded [with V app. tort assault;
likely att. crim battery if juris
(c)]
(b)
And D knows it is not loaded [probably tort assault]
d)
Model Penal Code 211.1 Assault
i)
Simple assault.
A person in guilty of assault if he:
(1)
Attempts to cause or purposely, knowingly or recklessly
causes bodily injury to another; or
(2)
Negligently causes bodily injury to another with a deadly
weapon; or
(3)
Attempts by physical menace to put another in fear of
imminent serious bodily harm.
Simple assault is
a misdemeanor unless committed in a fight of scuffle entered into by mutual
consent, in which case it is a petty misdemeanor
ii)
Aggravated assault. A person is guilty of aggravated assault if
he:
(1)
Attempts to cause serious bodily injury to another, or
causes such injury purposely, knowingly or recklessly under circumstances
manifesting extreme indifference to the value of human life; or
(2)
Attempts to cause or purposely or knowingly causes
bodily injury to another with a deadly weapon.
Aggravated
assault under paragraph (i) is a felony in the second
degree; aggravated assault under paragraph (ii) is a felony of the third degree
Maryland specifies a limited nature for
aggravated assault
3)
ELEMENTS OF THE CRIME:
ACTUS REUS
& MENS REA
a)
MPC 1.13, General Definitions
i)
Statute:
includes the Constitution and a local law or ordinance of a political
subdivision of the State;
ii)
Act or action:
means a bodily movement whether voluntary or involuntary
iii)
Voluntary (MPC 2.01)
(1)
A person is not guilty of an offense unless his
liability is based on conduct which includes a voluntary act or the omission to
perform an act of which he is physically capable
(2)
The following are not voluntary acts within the meaning
of this Section:
(a)
A reflex or convulsion;
(b)
A bodily movement during unconscious or sleep;
(c)
Conduct during hypnosis or resulting from hypnotic
suggestion;
(d)
A bodily movement that otherwise is not a product of
the effort or determination of the actor, either conscious or habitual
(3)
Liability for the commission of an offense may not be
based on an omission unaccompanied by action unless:
(a)
The omission is expressly made sufficient by the law
defining the offense; or
(b)
A duty to perform the omitted act is otherwise imposed
by law
(4)
Possession is an act, within the meaning of this
Section, if the possessor knowingly procured or received the thing possessed or
was aware of his control thereof for a sufficient period to have been able to terminate
his possession
iv)
Omission: means
a failure to act
v)
Conduct: means
an action or omission and its accompanying state of mind, or where relevant, a
series of acts and omissions;
vi)
Actor: includes, where relevant, a person guilty of an
omission;
vii) Acted: includes, where relevant, omitted to act
viii)
Person, he and actor:
include any natural person and, where relevant, a corporation or an
unincorporated association;
ix)
Element of an offense:
means (a) such conduct or (b) such attendant circumstances or (c) sucha a result of conduct as
(1)
Is included in the description of the forbidden conduct
in the definition of the offense; or
(2)
Establishes the required culpability; or
(3)
Negatives an excuse or justification for such conduct;
or
(4)
Negatives a defense under the statute of limitations;
or
(5)
Establishes jurisdiction or venue
x)
Material element of an Offense: means an element that does not relate
exclusively to the statute of limitations, jurisdiction, venue or to any other
matter similarly unconnected with (a) the harm, or evil, incident to conduct,
sough to be prevented by the law defining the offense, or (b) the existence of
a justification or excuse for such conduct;
xi)
Purposely: A
person acts purposely with respect to a material element of an offense when:
(1)
If the element involves the nature of his conduct or
result thereof, it is his conscious objective to engage in conduct of that
nature or to cause such a result, and
(2)
If the element involves the attendant circumstances, he
is aware of the existence of such circumstances or he believes or hopes they
exist
xii) Intentionally
or with intent: means purposely
xiii)
Knowingly: A
person acts knowingly with respect to a material element of an offense when:
(1)
If the element involves the nature of his conduct or
the attendant circumstances, he is aware that his conduct is of that nature or
that such circumstances exist; and
(2)
If the element involves a result of his conduct, he is
aware that it is practically certain that his conduct will cause such result
xiv)
Recklessly: A
person acts recklessly with respect to a material element of an offense when he
consciously disregards a substantial and unjustifiable risk that the material
element exists or will result from his conduct.
The risk must be of such a nature and degree that, considering the
nature and purpose of the actor’s conduct and the circumstances know to him,
its disregard involves a gross deviation from the standard of conduct that a
law-abiding person would observe in the actor’s situation
xv) Negligently: A person acts negligently with respect to a
material element of an offense when he should be aware of a substantial and
unjustifiable risk that the material element exists or will result from his
conduct. The risk must be of such a
nature and degree that the actor’s failure to perceive it, considering the
nature and purpose of his conduct and the circumstances known to him, involves
a gross deviation from the standard of care that reasonable person would
observe in the actor’s situation
xvi)
Reasonably believes or reasonable belief: designates a belief which the actor is not
reckless or negligent in holding
b)
Actus Reus
i)
Actus reus
always consists of one or more of the following
(1)
Voluntary conduct of D (always)
(2)
Production of a stated result by D’s voluntary conduct
(sometimes; and if required there must be causation)
(3)
Surrounding circumstances without which D’s voluntary
conduct does not meet the definition of the crime (sometimes)
ii)
What is conduct?
Physical action, speech
(1)
Voluntary conduct: consciously willed conduct
(2)
All of D’s actus reus
need not be voluntary, liability is based on conduct that includes a voluntary
act
(3)
Rule for Voluntary vs. Involuntary Conduct: If part of D’s conduct is voluntary and part
of D’s actus reus is involuntary, but if at the
time of voluntary conduct there is the requisite mens
rea there is sufficient voluntary conduct to convict
iii)
A person may be criminally liable for an omission to
act, but only if:
(1)
D has a legal duty (not just a moral duty) to act under
the circumstances
(2)
D must have capacity, means of ability to act; and [not
required if you would seriously injure yourself or others]
(3)
D’s failure to act causes a stated result
Examples of crime
by omission: battery (blind man falls
into ditch) and arson (legal duty to act when aware the fire has been burning)
iv)
A person has a legal duty to act when:
(1)
Particular type of (personal) relationship: CL family, people in dangerous situations (mt. climbing)
(2)
Voluntary assumption of care—once you start to help you
must continue/finish
(3)
Contract (on-duty lifeguard)
(4)
Statutes
(5)
D created the peril
(6)
Fact that D has a duty to control the conduct of others
(7)
Fact that D is a landowner
c)
Mens Rea
i)
Mens Rea
consists in:
(1)
‘negative’ mens rea: lack of
justification or excuse; plus
(2)
‘affirmative’ mens rea: mental attitude
of D towards actus reus of offense
(purpose, knowledge, recklessness, negligence); plus possibly
(3)
‘special’ mens rea: additional
mental requisite over & above (2) (Example of special mens
rea in larceny:
intent to permanently deprive)
ii)
In order for the mental attitude of D to constitute the
affirmative mens rea
of an offense, it must
(1)
Be of the required nature (purpose, knowledge,
recklessness, negligence); and
(2)
Be an attitude to an element of the actus
reus
of the offense; and
(3)
Concur with the actus reus
of the offense
iii)
MPC mens rea
(1)
Purpose: object
to cause result, D knew or wanted result to occur
(a)
May be negated by an honest, though unreasonable
mistake
(2)
Knowledge: aware
that conduct can cause result, or D had the purpose to cause the result
(a)
Conscious risk assumption
(b)
May be negated by an honest though unreasonable mistake
(3)
Recklessness:
reckless, knowledge, purpose
(a)
D knows that it is risky
(b)
D should have been aware of those risks
(c)
Negated only by a mistake which is honest and
reasonable
(4)
Negligence:
negligence, recklessness, knowledge, purpose
(a)
D owed a duty to V
(b)
Negated only by an honest and reasonable mistake
iv)
If you intend a lesser crime and a greater crime
occurs, you assumed the risk and are still liable for the greater offense
v)
Doctrine of Transferred Intent: When the D has the mens
rea for greater offense, but commits the actus reus of the lesser crime; D can be
convicted for the lesser or greater crime
vi)
Mens rea must be appropriate to offense charged—3
possibilities of inappropriateness
(1)
D has mens rea appropriate to a criminal offense and commits actus reus of a different offense, D’s
mental state & voluntary conduct may be so far apart that no conviction of actus reus offense is possible
(2)
D has mens rea appropriate to a criminal offense, but through mistake
or accident commits actus reus of an offense
which differs only in degree, age category, etc. from offense for which he has
appropriate mens rea
(3)
D commits actus reus of a criminal offense, but does not have mens rea appropriate to offense
charged or any closely related offense, but perhaps intends to commit an
immoral act [ex: seen in statutory rape
cases]
vii) If
you had the mens rea but
you abandoned it, subsequent crime will not have mens
rea
viii)
Wrong victim:
Even if it is the wrong victim (not the intended one), perpetrator will
be guilty of the criminal offense against that person
d)
Absolute Liability Offenses
i)
No mens rea
necessary
ii)
There are no totally absolute liability offenses
iii)
Constitutionality
(1)
Origin of offense—CL or statute
(2)
Severity of punishment imposed
(3)
Language of the statute
(4)
Reasonableness of the standard
(5)
Likelihood of D ascertaining the truth
(6)
Stigma attached to conviction
(7)
Absolute liability is involved in regulations for
public health and safety: liquor,
narcotics, traffic, food; statutory rape and bigamy; abduction
iv)
Statutory law for absolute liability
(1)
Arguments FOR:
administrative convenience, too hard to prove tort negligence
requirements
(2)
Arguments AGAINST:
penalties ought to be slight, convicts people without guilt
e)
Mistake
i)
Types of mistake
(1)
Fact—can minimize liability
(2)
Law—other than law which make the D’s conduct
criminal
(a)
Non-penal: tort,
property, contract (Example: larceny; you believe you own the property);
defense
(b)
Penal law other than immediate offense; no defense
(i)
Example: you
believe your prior conviction was a misdemeanor and it actually was a felony,
you still can be convicted of having a concealable firearm as a convicted felon
(ii)
However, if mistake has been on reliance on someone
you’re reasonably allowed to rely (like a judge or public official) then it
will be a defense
(iii) Attorneys
do not count!
(3)
Law—proscribing D’s conduct—won’t minimize D’s
liability
ii)
When can D’s mistake be a defense to criminal
liability?
(1)
Eliminate liability—effect of mens
rea—defense to criminal liability if it negates the mens rea required
(2)
Minimize liability—many not totally eliminate liability
iii)
MPC 2.04 Ignorance or Mistake
(1)
Ignorance or mistake as to a matter of fact or law is a
defense if:
(a)
The ignorance or mistake negatives the purpose,
knowledge, belief, recklessness, or negligence required to establish a material
element of the offense; or
(b)
The law provides that the state of mind established by
such ignorance or mistake constitutes a defense
(2)
Although ignorance or mistake would otherwise afford a
defense to the offense charged, the defense is not available if the defendant
would be guilty of another offense had the situation been as he supposed. In such case, however, the ignorance or
mistake of the defendant shall reduce the grade and degree of the offense of
which he may be convicted to those of the offense of which he would be guilty
had the situation been as he supposed.
(3)
A belief that conduct does not legally constitute an
offense is a defense to prosecution for that offense based upon such conduct
when:
(a)
The statute or other enactment defining the offense is not
known to the actor and has not been published or otherwise reasonably made
available prior to the conduct alleged; or
(b)
He acts in reasonable reliance upon an official
statement of the law, afterward determined to be invalid or erroneous,
contained in (i)
a statute or enactment; (ii) a judicial decision, opinion or judgment;
(iii) an administrative order or grant of permission; or (iv) an official
interpretation of the public officer or body charged by law with responsibility
for interpretation, administration or enforcement of the law defining the
offense
(4)
The defendant must prove a defense arising under
subsection (3) of this section by a preponderance of the evidence
f)
Three types of participants in a crime who can be
punished:
i)
1st degree principal: person committing actus
reus
& mens rea
ii)
2nd degree principal: not voluntary conduct, but present when the
crime was committed, aids & abets
iii)
Accessory before the fact: aids or abets though not present at the time
of the crime
4)
Bigamy and Polygamy
a)
Bigamy—(statutory; may be a felony or a
misdemeanor): Bigamy is the purported
marriage of another spouse by a married person
i)
AR: marriage
ceremony
ii)
MR: knowledge or
purpose
iii)
Surrounding circumstances: being married to someone else
iv)
In Maryland,
matter of strict liability (In other courts minimum mens
rea is recklessness)
b)
MPC 230.1 Bigamy and Polygamy
i)
Bigamy. A
married person is guilty of bigamy, a misdemeanor, if he contracts or purports
to contract another marriage, unless at the time of the subsequent marriage:
(1)
The actor believes that the prior spouse is dead; or
(2)
The actor and the prior spouse have been living apart
for five consecutive years throughout which the prior spouse was not known by
the actor to be alive; or
(3)
A Court
has entered a judgment purporting to terminate or annul any prior disqualifying
marriage, and the actor does not know the judgment to be invalid; or
(4)
The actor reasonably believes that he is legally
eligible to remarry
ii)
Polygamy.
A person is guilty of polygamy, a felony in the third degree, if he
marries or cohabits with more than one spouse at a time in purported exercise
of the right of plural marriage. The
offense is a continuing one until all cohabitation and claim of marriage with
more than one spouse terminates. This
section does not apply to parties of a polygamous marriage, lawful in the
country of which they are residents or nationals, while they are in transit
through or temporarily visiting this State.
iii)
Other Party to Bigamous or Polygamous Marriage. A person is guilty of bigamy or polygamy, the
case may be, if he contracts or purports to contract marriage with another
knowing that the other is thereby committing bigamy or polygamy.
5)
Abduction
a)
Abduction is the taking of an underage girl from
the custody of her parents without permission
b)
Statutory:
felony or misdemeanor; sometimes strict liability as to age
c)
Alternate views:
i)
Age is a matter of strict liability
ii)
MR required, but by taking the girl without the consent
of the father, he had the knowledge he was doing something wrong which is
sufficient MR
6)
Rape
a)
Rape (CL felony)—CL rape is unlawful sexual
intercourse engaged in by a male person with a female person (by force and)
without her consent
b)
Elements of rape
i)
Unlawful—extramarital
ii)
Sexual intercourse—vaginal with penetration (D-male; V-female)
iii)
Force—outright physical force, imminent threat of force
(1)
MD—force is a separate actus reus
offense
(2)
Does psychological force count? Some juris. (MD)
say ‘yes’
iv)
Without consent (unconscious or mental incapacity)
c)
Actus reus
i)
Sex
ii)
Force
d)
Mens rea
i)
Sex & force:
intent (MPC purpose)
ii)
Unlawfulness:
recklessness/purpose
iii)
Without consent:
Majority—recklessness, Minority—purpose/knowledge
e)
Circumstances:
unlawful, without consent, female/male
f)
In cases of mistaken belief in MR for lack of consent,
recklessness/negligence
i)
Honest and reasonable—defense
ii)
D has duty to ascertain consent and woman has duty to
make lack of consent clear
g)
Changes in Consolidated Sex Offense Statutes
i)
Rape divided into degrees
ii)
Includes statutory rape
iii)
Includes deviant sex offenses (forcible)
iv)
Establishes degrees of sex offenses
v)
Gender neutral
vi)
Eliminate marital exemption (in MD there are
exceptions)
vii) Rape
Shield Statutes
(1)
Before this, D could show court record of V’s prior
sexual history
(2)
Now, precluded from showing evidence to V’s history but
in limited cases the judge may allow the evidence as exception
7)
Statutory Rape
a)
Statutory Rape—(may be a felony or
misdemeanor)—unlawful sexual intercourse engaged in by a male person with a
female person who is below the age set by the statute (anywhere from 10-18)
b)
Unlawful—extramarital (MR—purpose/recklessness)
c)
To negate the crime, need an honest and reasonable
mistake
d)
The age requirement (different views)
i)
Age is a matter of strict liability
ii)
D’s mental state should be considered, it is not strict
liability concerning age; he knew he was doing something wrong and took the
risk which qualifies as mens rea
8)
Theft
a)
LARCENY
i)
Common law larceny—(c.l.
felony)—the taking and carrying away of personal property from the possession
of another with the intent to permanently deprive that other there of without
claim of right
ii)
Elements of larceny
(1)
Possession
(a)
Actual legal possession—exclusive physical
dominion and control of a thing combined with the manifested intent to
exclusively control the thing on the possessor’s own account and in his own
name
(b)
Custody (de facto possession)—exclusive physical
dominion and control of a thing (no mental element)
(c)
Constructive legal possession—what actual legal
possessor has after someone else acquires custody, but not legal possession of
the thing
(2)
Crime against possession, not ownership; examples
(a)
Book on table, pick it up with intent to use it for own
benefit—actual legal poss
(b)
I have briefcase, someone drops book in, I close it and
leave with no knowledge book is in there—custody
(c)
I go to professor after class, she hands me book in
order to point out a problem (I have custody); she has constructive legal
possession
iii)
Actus Reus of Larceny
(1)
Voluntary conduct:
taking and carrying away
(2)
Surrounding circumstances: from poss of
another without consent (trespass); personal property
(3)
Taking
(a)
D must have acquired actual legal possession of thing
stated to be taken
(b)
Dominion and control with intent to exercise property
for own interest
(i)
Must be removed from where fastened or off person to
whom attached
(ii)
There is a taking if D has someone else (innocent
agent—with honest belief D is owner) obtain the object for him/her
(c)
Taking can occur, even if only for a few seconds
(4)
Asportation (carrying away)
(a)
MD/MPC eliminate asportation
requirement
(b)
Modern:
Slightest carrying away movement is enough
(c)
Must have a taking first
(d)
Prior construction:
every atom of the thing must be moved from its original position
(e)
It is not common law larceny where V voluntarily handed
over actual legal possession and title transferred
(5)
Trespassory: from the legal possession of another and
without their consent
(6)
Property Subject to Larceny
(a)
Tangible personal property (of another), capable of
being possessed, of at least some value
(b)
Intangibles:
stocks, bonds, promissory notes (no value themselves but represent a
value)
(c)
Land is not subject to common law larceny because it
cannot be carried away
(d)
Things not subject to c.l.
larceny except by statute: abandoned
property, wild animals, pets, gas and electricity, joint ownership of property,
wife and husband
(7)
The Apple Hypothetical:
O owns Blackacre, on Blackacre
there is an apple tree, under the tree are:
apples fallen from the tree; and apples picked by O and left on the
ground, then D comes back to Blackacre and picks more
apples from the tree and leaves them on the ground until he can get a basket to
carry them in and D picks even more apples which he carries away with him when
he goes to get the basket. D returns and
carries away the first three sets of apples in the basket.
(a)
Tree=real property, no larceny because apple is
connected to tree, never in O’s possession
(b)
Apples picked by O and left on ground=when picked
became O’s property, no evidence that O abandoned them so CL larceny
(c)
Apples picked by D and left on ground=on O’s land, CL
larceny
(d)
Apples fallen from tree=lying on O’s land, so CL
larceny
iv)
Mens Rea of Larceny
(1)
Affirmative—minimum knowledge, state of mind toward actus reus
(2)
Special—intent to permanently deprive
(a)
Intent to deprive V, not benefit D
(b)
Intent to destroy is an intent to deprive
(c)
MPC purpose
(3)
Permanently
(a)
Forever, or deprivation for an unreasonable period of
time from V of all or substantial value of the property
(b)
Intent to use temporarily than abandon
(i)
Where D has an intent to return the property
unconditionally within a reasonable period of time, no CL larceny because no
intent to deprive permanently
(ii)
Where D creates an unreasonable risk of permanent
deprivation to V, CL larceny because of inferred intent to permanently deprive
(iii) Where
D takes something and returns it on a condition he has no right to impose, CL
larceny because intent to permanently deprive
(4)
Without Claim of Right
(a)
Another special mens rea: purpose or
knowledge
(b)
Claim of right is a mens rea defense to CL larceny:
(i)
But only when it is honest/bona fide claim
(ii)
Honest (though unreasonable) mistake of fact will
negate
(iii) Not
a defense to CL robbery
(c)
Is it theft if you take property from someone but pay
for it? If property is clearly for sale,
and you pay, then you have a claim of right
(also depends on value of property to the true owner)
(5)
Umbrella Hypothetical
v)
Maryland/MPC Theft Statutes
(1)
§ 342 Theft
(a)
Obtaining or exerting unauthorized control—A
person commits the offense of theft when he willfully or knowingly obtains
control which is unauthorized or exerts control which is unauthorized over
property of the owner, and
(i)
Has the purpose of depriving the owner of the property;
or
(ii)
Willfully or knowingly uses, conceals, or abandons
property in such manner as to deprive the owner of the property; or
(iii) Uses,
conceals, or abandons property knowing the use, concealment, or abandonment
will probably deprive the owner of the property
(2)
§341 Acts Constituting Theft: Conduct designated as theft in this
subheading constitutes a single crime embracing, among others, the separate
crimes heretofore known as larceny, larceny by trick, larceny after trust,
embezzlement, false pretenses, shoplifting, and receiving stolen property.
b)
EXTENSIONS OF CL LARCENY & NEW STATUTORY CRIMES
i)
Scope: It is
essential to CL larceny that D take the property in question from the
possession of another with a concurrent intent to steal; includes the following
situations:
(1)
Cases in which D obtains physical control of the
property with innocent intent and thereafter misappropriates it (CL larceny,
embezzlement, larceny after trust, larceny by bailee)
(a)
D is a fiduciary
(i)
Fiduciary—D is a fiduciary if the business he/she
transacts or the money or property he handles is not for his own benefit, but
for the benefit of another with whom he is in a relationship implying and
necessitating great confidence and trust on one part and a high degree of good
faith on the other
(ii)
D is a servant who obtains physical control from V and
misappropriates [D gets custody, V keeps constructive legal possession, D’s
misappropriation is CL larceny]
(iii) D
is a servant who obtains physical control from a third party for V or for V’s
benefit
1.
If D, before misappropriating, puts the property in a
place where as a servant, it is his duty to put it for the master, master (V)
gets legal possession and D only has custody; misappropriation is CL larceny
2.
If D misappropriates property before putting it in V’s
legal possession, D has actual legal possession—not CL larceny; today it is
embezzlement if
a.
There is an embezzlement statute; and
b.
D is a fiduciary of the kind mentioned in the statute
(iv) D
is a fiduciary other than a servant who obtains physical control of property
from V or from a third party for V
1.
From third party for V—D gets actual legal possession,
no CL larceny; today it is embezzlement if
a.
There is an embezzlement statute; and
b.
D is a fiduciary of the kind mentioned in the statute
2.
From V—D gets actual legal possession, misappropriation
is not CL larceny, today it is larceny by trust if
a.
There is an embezzlement statute; and
b.
D is a fiduciary of the kind mentioned in the statute
(v)
D is a fiduciary who obtains both title to and
possession of property from V or from a third party for V
(b)
D is not a fiduciary—D is a bailee
or finder or taker by trespass without concurrent intent to steal [D is not
guilty of any aforementioned offenses, only get him for larceny by false
pretenses (possibly) or fraudulent conversion (possibly)]
(i)
Bailee: a bailment is the rightful possession of
personal property by one who is not the owner, and who is under a duty to
account for the goods as the property of another, to restore original goods to
the bailor, or to a third party directed by the bailor, as soon as the purpose of the bailment is complete
1.
Carrier’s Case:
If there is a bailment, and the bailment terminates and then bailee misappropriates he is taking from constructive/actual
possession—CL larceny; here breaking the bales with intent to misappropriate
terminates the bailment
2.
Breaking bulk:
Taking some (but not all) of an item sold by weight or volume is
breaking bulk (i.e. pig iron, grain, interchangeable goods) and is CL larceny
a.
Items sold by count, not bulk, no CL larceny
(ii)
Taker by trespass without concurrent intent to steal
1.
i.e.—go to friends house, borrow lawn mower, but later
decide to keep it—trespass
2.
theory of continual trespass
a.
where D takes and carries away without the intent, he
is deemed to have continually trespassorily taken and
carried away…when the intent develops it concurs with the taking and carrying
away
3.
D intentionally takes the property
a.
Misappropriate is CL larceny
b.
D has intent to return property in a reasonable time,
misappropriation is larceny as soon as intent to steal develops
4.
D innocently takes the property
a.
With claim of right, misappropriation is not a felony
b.
Can be a trespassory taking
as soon as intent to steal develops
(iii) Earmarked
funds
1.
Actual thing is to be transferred to a party (i.e.
actual bills)
2.
A gives B $100 to pay to C,
a.
B takes physical poss. with innocent intent then
misappropriates
i.
If a servant—B has custody, CL larceny
ii.
If a fiduciary for A—larceny after trust
iii.
If a fiduciary for C—embezzlement
iv.
If a bailee—larceny by bailee
b.
B acquired bills with intent to misappropriate, larceny
by trick
(iv) Finders
1.
Finder has a right to possession against all but the
true owner or prior possessor
2.
If true owner could be discovered…
a.
And D picks it up intending to keep it—CL larceny
b.
And D picks it up intending to return it, but later
decides to keep it—not CL larceny because item rightfully came into possession
(could be larceny by bailee)
(v)
Misdeliveries
1.
A knows mistake and takes it anyway—CL larceny
2.
A knows mistake, intends to return it, later changes
mind—not CL larceny, maybe larceny by bailee
3.
Example:
a.
The problem: As
A is about to leave home for work, her doorbell rings and a deliveryman from a
local store hands her a package with an umbrella handle protruding from one
end. A assumes that someone is sending
her a gift. But after the deliveryman
has left, A notices that the name and address on the outside package are those
of her next door neighbor. She decides
to keep the umbrella (X) for herself. She
carries it to work and takes it to a restaurant at lunch time, when she leaves
it hanging on a coatrack. After lunch, as she is walking back to work
she notices that she has accidentally picked up umbrella (Y) from the coatrack rather than umbrella (X). Since Y is of better quality< she decides
to keep it. Further along, she sees a
folding umbrella (Z) with a broken wrist strap in the middle of the sidewalk. She picks this up and notices a silver name
plate on the handle with the name “Prunella Z. Farzetta—Waldenheim” engraved on
it. A keeps this one as a spare.
b.
Solution—are any umbrellas stolen?
i.
X—not CL larceny, at time she took the package is was
an innocent mistake (may be larceny by bailee) *when
D has means of knowing contents of container, get ALP of container and contents *when
D has no means of knowing contents of container, D gets ALP of container and
only custody of contents (misapp. Contents = CL
larceny)
ii.
Y—as soon as D develops intent to steal, CL larceny
iii.
Z—if you find something with I.D. on it *you immediately decide to keep it—CL
larceny *you intend to return it, later change
mind—not CL larceny (bailee?) *if it were
abandoned, D acquires ownership
4.
Mistake as to identity of property (sovereign really a
shilling)
a.
Can’t possess what you do not know you have
b.
Only get custody, when discovered owner has CLP, CL
larceny
(2)
Cases in which D obtains physical control of property
having ‘fraudulent’ intent or ‘intent to steal’ at time of taking (CL
larceny—larceny by trick; false pretenses)
(a)
Larceny by trick:
(i)
Can be committed only if D obtains only physical
control (not title as well) with ‘intent to steal’ [form of CL larceny] and
meets requirements for larceny by trick…
1.
D must obtain only physical control of the property in
question
2.
D must obtain physical control of the property in
question from V ‘by trick’ (sometimes oral or written misrepresentation of past
or present fact)
3.
Normally there is a later conversion…but this is
evidence of fraudulent intent but not a conclusive showing
(ii)
If D obtains only physical control with ‘intent to
steal’ he cannot be guilty of embezzlement, larceny after trust, or larceny by bailee
(b)
False Pretenses:
(i)
D must obtain title to, as well as possession of
property from V by knowingly making a false representation of material past or
present fact with intent to defraud and V in fact must be defrauded
1.
Representation can be oral, written, silence (failure
to inform), misrepresenting yourself as someone else (conduct)
2.
Representation must be false
a.
At time made and when V passes title to D
b.
NOT false pretenses if false when statement made but
valid when V passes title to D
c.
If statement true at time it is made and false when
title passes, for false pretenses D would have to know it was false and V
relied
(ii)
Does not include false promises, only criminalizes
false misrepresentation that V reasonably relied on
(iii) Claim
of right is a defense
(iv) Intent
to repay money obtained by false pretenses—not a defense
c)
OTHER THEFT OFFENSES
i)
Robbery
(1)
CL felony—CL larceny from the person or in the presence
of the victim by violence (force) or intimidation
(2)
Elements
(a)
Must have CL larceny
(b)
Intimidation—for D’s conduct to constitute
intimidation, it must be such as to put V in fear or immediate bodily injury or
death to V himself, or to a member of V’s family, or to someone in V’s company
at the time, or, possibly threat of immediate harm to a dwelling house
(c)
Unconscious victim
(i)
If D caused helpless state and takes from V—robbery
(ii)
If D did not make V unconscious and steals—larceny
(d)
In the presence:
property is taken from the “presence of another” when it is so within
the victim’s reach, inspection, or observation that he or she would be able to
retain control over the property but for the force, threats, or intimidation
directed by the perpetrator against the victim
(e)
No robbery if one kidnaps you, while the other steals
(f)
Violence or intimidation must precede or concur with
the actus reus
ii)
CL Extortion
(1)
Corrupt taking or collection of a fee by a public
official under the color of his office where no fee is due or not so large a
fee is due or the fee is not yet due
(2)
Public official is the only criminal
(3)
Example: public
official says give me money or I’ll put you in jail
iii)
CL Bribery
(1)
Giving or taking a bribe (something given for the
purpose of improperly influencing official action)
(2)
Voluntary, both parties guilty
(3)
Compliments CL extortion
iv)
Statutory Extortion (Blackmail)
(1)
Usually a felony, maybe a misdemeanor
(2)
Consists in either
(a)
Obtaining money or other property by means of an
unlawful threat; or
(b)
An unlawful threat made for the purpose of obtaining
money or other property (even if not obtained)
(3)
Elements:
(a)
Object of extortion:
money, property, or anything of value, or to compel V to do an act
against his will
(b)
Threat could be written, oral, or conduct
(c)
Future threats can only be statutory extortion
(4)
Threat to disclose V’s disgraceful secret—extortion
(5)
Claim of right NOT a defense
v)
Forgery
(1)
CL misdemeanor, today a felony
(2)
The fraudulent making of a false writing having
apparent legal significance (even if you never use it to defraud
(3)
Uttering:
offering as genuine a forged instrument
(4)
Elements
(a)
False writing:
must be written, writing itself must be a lie (Examples…making a writing
and signing V’s name, sign check of V’s account with V’s name, sign a writing
with a fictitious name, material alterations in document executed by V)
(b)
Legal significance:
document can be a foundation for legal liability
(c)
Intent to defraud must be present, regardless of anyone
actually being defrauded
vi)
Receiving Stolen Goods
(1)
Person will be punished for receiving stolen goods
(a)
If he knew that a larceny had been committed but agreed
not to report or prosecute it in return for something of value (say, a lower
price for the goods), he was guilty of compounding the crime
(b)
Failure to make a timely report to authorities that
felony had been committed was known as misprision of felony
d)
CONSOLIDATED THEFT STATUTES, M.P.C. 223
9)
CRIMES AGAINST HABITATION
a)
Arson
i)
CL felony
ii)
The malicious (willful and malicious) burning of the
dwelling of another
iii)
Elements
(1)
Dwelling house—place of residence, occupied by a human
being at night as a place to sleep, don’t have to be there all the time—must
have intent to return
(a)
Other building ‘within the curtilage’
of the dwelling house where human being could be found time to time
(b)
‘Within the curtilage’—reasonably
near to the dwelling house, public highway severs the curtilage
(c)
not a dwelling until people have moved in
(d)
can be a mobile home or a car regularly used to sleep
in as a dwelling
(2)
Of Another—possession or occupancy and not title
determine whose house a building shall be
(a)
Removed in statutes concerning fires for insurance
(b)
Tenant—still has a dwelling, burning it is arson, also
depends on danger to other tenants
(3)
Burning—there must be actual wasting or charring of
some part of the wood or other combustible fabric of the house
(a)
Scorching and blackened by smoke are not enough
(b)
Fire must be to the structure of the building
(i)
Built in/out fixtures are structural: cabinets, doors
(ii)
Removable things NOT structural: window shutter(?), couch
(c)
Explosion which does not burn anything (not CL arson);
but statute bring it under arson category
(4)
Mens Rea—malice
(a)
Two requirements
(i)
D intentionally set the fire
(purpose/knowledge/depraved heart recklessness) without justification, excuse,
or mitigation
(ii)
Intent to cause burning of dwelling of another; or
creates a fire hazard to dwelling of another
(b)
Omission to act:
(i)
One accidentally sets a fire and walks away not
knowing—no arson
(ii)
If person aware he caused the fire and walks
away—arson; caused the peril and therefore has a duty to act
(c)
Justification, Excuse, Mitigation (?)
(i)
If J=no crime
(ii)
If E=no liability for crime
(iii) If
M=lower penalty for crime
iv)
May be expanded by statute to include buildings other
than houses
b)
Malicious Mischief—CL misdemeanor, any malicious
destruction of, or damage to, the property of another, real or personal, which
is not CL arson
c)
Houseburning—CL misdemeanor,
the intentional burning by one of his own dwelling house, if house is situated
in a city or town or so near to other houses as to create danger to them
d)
Burglary
i)
CL felony
ii)
The breaking and entry of the dwelling of another in
the nighttime with the intent to commit a felony therein
iii)
Elements
(1)
Dwelling house—same as arson requirements, except
dwellings (i.e. apartments) are considered separate (Also businesses, cars,
ships)
(2)
Trespassory—without consent
of possessor of house (consent is a defense)
(3)
Breaking—a barrier to entry is removed
(a)
Breaking IS:
opening an unlocked door, widening an already open door, thru a window,
servant/employee with key to house without permission to be there at night
(b)
Breaking IS NOT:
entering an open door, breaking out (unless by statute)
(c)
Constructive breaking:
opening procured by some fraudulent device, trick, fraud, threat of
violence, co-conspirator inside dwelling, thru chimney
(4)
Entering—some part of intruder’s body must pass the
barrier
(a)
Breaking and entering do not have to occur on the same
night
(b)
Entering must follow the breaking
(c)
Entry must be made through the opening caused by the
breaking
(d)
Can be any part of the intruder’s body
(e)
Tool or innocent agent to effect the breaking does not
count as ‘entering’
(f)
Felonious tool—any tool with object to commit the
felony will be entering
(i)
If D shoots a bullet through window to kill, both
breaking and entering even if no death
(ii)
Monkey trained to steal from house
(5)
At night—CL sunset to sunrise
(a)
Can be changed by statute
(b)
If there was enough daylight to make out the
countenance of a human being it is not nighttime
(6)
Felonious intent—all CL and statutory felonies (the
misdemeanor of CL larceny is a felony for purposes of CL burglary)
(a)
Felony need not be completed or attempted
(b)
Don’t have to prove the felony—can be arrested for the
breaking and entering because jury could reasonably find felonious intent
(c)
D does not need to know that what he is doing is felonious
(d)
Intent to commit the felony must concur with the
breaking and entering
(e)
If once inside the house D commits a felony that was
not originally intended, or if only wanted to commit a misdemeanor NO CL
burglary
(7)
Therein—inside the dwelling house (Exceptions: break and enter to use house to shoot someone
on street; break and enter and rape girl on roof)
iv)
Statutory changes eliminated nighttime, breaking, from
definition; expanded dwelling
e)
Housebreaking—CL misdemeanor, the breaking and entry of
the dwelling of another (no nighttime requirement), no requirement of intent to
commit a crime therein
f)
False Imprisonment—CL misdemeanor, intentional and
unprivileged confinement of another person
i)
Confinement:
don’t have to touch V, can use physical force or exerted authority or
deception (i.e. police officer costume)
ii)
Mens rea—courts
differ on whether D has to know the imprisonment is unprivileged
g)
Kidnapping
i)
CL misdemeanor, statutory felony
ii)
Forcible abduction or stealing away of a person from
his own country and taking or sending him into another country
iii)
Elements
(1)
CL—forcible abduction and asportation
(2)
Today—forcible abduction and transport/confine within
your jurisdiction
(3)
Mens rea—courts
differ on whether D must know abduction is unprivileged
(4)
Penalties are increased for aggravating factors: ransom, to advance a felony, hostage, harming
V (question of when/what harm)
10) HOMICIDE
a)
Killing (causing the death of) another human being [by
action, words, failure to act]
i)
Does not include killing animals
b)
Innocent homicide—homicide which is justifiable or
excusable, matter of mens rea
c)
Criminal homicide—homicide without lawful justification
or excuse; either murder or manslaughter (both are CL felonies)
i)
Murder—homicide committed without justification, excuse
or mitigation and with malice aforethought, i.e.
(1)
D has intent to kill; or
(2)
D has intent to cause serious bodily harm; or
(3)
D has acted with depraved heart recklessness; or
(4)
D has caused death in commission of a felony and felony
murder rule applies
ii)
Manslaughter—homicide committed without justification,
or excuse and without malice aforethought;
(1)
Circumstances which constitute malice exist, but there
is mitigation [voluntary]; or
(2)
No circumstances constituting malice exist
[involuntary—could occur due to MPC recklessness or intent to cause non-serious
bodily harm]
iii)
Examples of mitigation:
provocation, self-defense
(1)
Incomplete justification allows lowering of charges
(2)
In MD, cannot inherit after murder—voluntary
manslaughter
d)
Burden Shifting Framework: Intent to kill—CL includes MPC purpose and knowledge
(1)
Operated with certain presumptions—if there is intent
to kill or cause serious bodily harm it is presumptively murder (no
justification or excuse)
(2)
If D shows justification or excuse, burden shifts back
to the state
(3)
State has burden of persuasion, beyond a reasonable
doubt
(4)
*In CA, burden is on D if murder is a statutory crime
e)
Murder Gradation
i)
Ascending ladder of culpability
(1)
Non-criminalàCriminal
manslaughter: state must prove killing
was not justified or excused
(2)
Manslaugherà2nd
degree murder: state must further
establish killing was not mitigated (presumption of malice kicks in because
there is no J, E, M)
(3)
2nd degree murder à1st degree
murder: state must further establish
premeditation and deliberation
ii)
Grading of Murder/Manslaughter
(1)
If there is an intent to kill or cause serious bodily
harm it is automatically 2nd degree murder
(2)
If state shows all elements are present, can be changed
to 1st degree murder
(3)
If D can prove mitigation, charge may be lowered to
manslaughter (when there is malice but mitigation, or malice exists but no
criminal recklessness)
f)
First Degree Murder
i)
1st degree murder (standard pattern)—all
murder which shall be perpetrated “by poison, or by lying in wait or by any other
kind of willful, deliberate or premeditated killing” or which shall be
committed in the perpetration or attempt to perpetrate [stated felonies: rape,
robbery, arson, etc.]
ii)
Maryland
Annotated Murder Statutes
(1)
MD Code Ann. Art. 27 § 407: All murder which shall be perpetrated by
means of poison, or lying in wait, or by any kind of willful, deliberate, and
premeditated killing shall be murder in the first degree
(2)
MD Code Ann. Art. 27 § 408: All murder which shall be committed in the
perpetration of, or attempt to perpetrate, arson in the first degree shall be
murder in the first degree.
(3)
MD Code Ann. Art. 27 § 409: All murder which shall be committed in the
burning or attempting to burn any barn, tobacco house, stable, warehouse or
other outhouse, not parcel of any dwelling house, having therein any tobacco,
hay, grain, horses, cattle, goods, wares, or merchandise, shall be murder in
the first degree.
(4)
MD Code Ann. Art. 27 § 410: All murder which shall be committed in the
perpetration of, or attempt to perpetrate, any rape in any degree, sexual
offense in the first or second degree, sodomy, mayhem, robbery…, carjacking or
armed carjacking, burglary in the first, second or third degree…destructive
devices, kidnapping…, or in the escape in the first degree or attempt to escape
in the first degree from the Patuxent Institution,
any institution or facility under jurisdiction of the Division of Correction or
the Division of Pretrial Detention services, or from any jail or penal
institution in any of the counties of this State, shall be murder in the first
degree
(5)
MD Code Ann. Art. 27 § 411: All other kinds of murder shall be deemed
murder in the second degree.
iii)
Note difference between standard pattern and MD
Annotated: elimination of the word
“other” means by poison and lying in wait must also be willful, deliberate, and
premeditated
iv)
Willful—MPC purpose—conscious objective of causing
death
(1)
Deadly Weapon Rule—jury can draw an inference (S.C.
ruling) that pointing a deadly weapon at a vital part of the human anatomy that
D had intent to kill (or further MPC purpose)
v)
Deliberation—requires D to consider pros and cons of
killing in a “cool” state of mind (not formed in passion or while intoxicated)
vi)
Premeditation—means D thought about killing beforehand
(design, determination to kill)
(1)
Courts differing opinions
(a)
Some courts say there is no set time that must occur
between the premeditation and the killing (may be as instantaneous as
successive thoughts of the mind)
(b)
Other courts say there must be an appreciable time to
show deliberation in a “cool” state of mind
vii) CA
courts: to show D was willful,
deliberate, premeditation there must be evidence of planning, motive, or manner
of killing showing w, d, p
viii)
Supreme Court Test to Determine Imposition of the Death
Penalty: are there aggravating
circumstances, i.e. multiple murders, murders likely to cause many deaths (like
setting a bomb)…if so, look to see if there are mitigating circumstances
g)
Intent to Cause Bodily Injury
i)
Serious bodily harm:
harm that is permanent or dangerous, including any harm which is
sufficient to seriously interfere with the victim’s health or comfort
ii)
Objective test:
whether a reasonable person in D’s place would contemplate the
serious bodily harm as the natural and probable result of his actions
iii)
Subjective test:
did this particular D realize at the time the likelihood of
serious bodily harm
(1)
Used in England
(2)
You can’t have presumption, only inferences to come to
a guilty verdict
h)
Provocation (mitigation)
i)
Elements of Provocation
(1)
There must have been adequate provocation (objective
test)
(2)
Killing must have been in the heat of passion
(subjective test)
(3)
Heat of passion must be sudden (objective test)
(4)
Causal relationship among 1-3
ii)
Really only relevant to murder cases
iii)
Legally adequate provocation: catching spouse in act of adultery, mutual
affrays, one person hits another, at CL unlawful arrest (today there is no
privilege to resist arrest)
iv)
MPC 210.3(1)(b) suggests that murder should be reduced
to manslaughter when the homicide occurs “under the influence of extreme mental
or emotional disturbance for which there is reasonable explanation or
excuse.” Such reasonableness is
“determined from the viewpoint of a person in the actor’s situation under the
circumstances as he believes them to be.”
(1)
More expansive view than CL
(2)
Look at heat of passion vs. “slow burn” where passion
builds over time
v)
Words and Provocation
(1)
CL—words alone do not constitute (legally adequate)
provocation no matter how nasty they are
(2)
Informational words may be deemed legally
sufficient: i.e. someone tells D that
wife and third party committed adultery
vi)
Problem: to what
extent do we take personal characteristics of D into account:
(1)
D—age, alcoholic, physical defects, etc.
(2)
Even if court takes individual characteristics into
account, will not judge a person with a vile temper against another person with
a vile temper (will use reasonable person)
i)
Justification
i)
Accused did the right thing—he was entitled to commit
the actus reus
ii)
Accomplice Rules
(1)
When D has justification defense, accomplice has not
criminal liability
(2)
D has excuse defense, D not criminally liable but accomplice
could be criminally liable if he does not have j/e of his own
iii)
Justification examples:
self defense, necessity, law enforcement, prevention of crime,
protection of property/others (can be defenses to other crimes)
iv)
j)
Excuse
i)
D has an explanation which makes it unfair and
pointless to hold him fully accountable
ii)
Examples of excuse:
duress, insanity
k)
11) Defenses
Intoxication
(goes to negate mens rea)
Causes
a mental disease or defect which causes him to commit the crime – based on the jurisdiction’s
insanity defense. We do not care whether
it was involuntary or
voluntary
Temporary
insanity – the courts may distinguish between voluntary and involuntary
Directly
causes the Defendant to commit the crime (not like actus
reus)
Involuntary
– Forced or unknown
We
ask whether the intoxicant caused you to act the way you would if you had an
insanity defense (Many courts have held
that the
intoxication of an addict, is NOT involuntary even though the person
is an addict
If
you cannot meet the insanity defense, you are in a position where you must defend
yourself under the voluntary intoxication standard
Voluntary
– depends on whether what you committed was a certain type of crime;
General
Intent – cannot be negated – mens rea
of negligent or recklessness
Specific
Intent – can be negated – in theory, is should negate purpose
or knowledge, but is does not.
Larceny,
intent to permanently deprive – if you can show that
you were so intoxicated that you could not have that intent, that it is a defense
Burglary
– same argument
Problems
- - - how do you categorize crimes for this defense???
In
rape, he must know what he is doing (you can be reckless
as to whether you are married – c.l.)
Most jurisdictions have a minimum mens rea of recklessness
(must be honest and reasonable) with the consent of the victim
(Morgan said you must have purpose)
Murder
II – absent a statutory definition of malice, they
were four types at the c.l. – general or specific??? It is enough if there was depraved heart recklessness, therefore as whole, it
is a general intent
crime.
*
most jurisdictions will label it either
*
should they look at the particular mens rea alleged (MD – as dicta,
discuss what they should do – to date, Md has treated Murder II as a general intent
crime, therefore intoxication
cannot reduce the crime to manslaughter – intoxication
can prevent conviction of Murder I, cannot prevent
conviction of Murder II. In the case of
felony murder,
intoxication would not be a direct defense, you have
to get the felony reduced to a misdemeanor or from a first
degree to a second degree felony – negate, larceny, therefore negate robbery – end up
with tort assault and then manslaughter instead of murder
