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Crim Law attack outlines, Study Guides, Projects, Research of Criminal Law

University of Akron Criminal Law

Prof. Dana Cole

Final condenses outline of entire semester for final exam study purposes.

Typology: Study Guides, Projects, Research

2020/2021

Uploaded on 12/26/2021

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CRIMINAL LAW STUDY OUTLINE

I. THEORIES OF PUNISHMENT

a. Retributivism

i. People should get what they deserve

ii. Justice for the victim

iii. Rests on moral culpability

b. Utilitarianism

i. General deterrence: prevent any and all from acting

ii. Specific deterrence: prevent this person from acting again

iii. Rehabilitation

II. ELEMENTS OF A CRIME

a. Actus Reus

i. A voluntary act

1. Volition

2. Sometimes omission

a. Generally, you have no duty to act.

b. Exceptions

i. Statute imposing a duty to act

ii. Special relationship

iii. Assumption of contractual relationship to care

iv. Voluntary assumption of care that then excludes others

v. Creation of risk of harm (in some states)

ii. Social harm

1. Results crimes

2. Conduct crimes

3. Attendant circumstances

b. Mens Rea

i. Morally culpable state of mind

1. General intent: only requires that you intended to commit the crime;

generally morally blameworthiness

2. Specific intent: particular mens rea in the definition of the offense.

ii. Two approaches to mens rea:

1. Broad “Culpability” meaning: one has a broad morally blameworthy

state of mind, thus culpable for any offense committed with this state of

mind.

2. Narrow “Elemental” meaning: one has a particular state of mind

specified in the offense.

iii. Levels of Culpability

1. Intentionally

a. General intent

b. Specific intent

c. Transferred intent

i. Harm someone else

ii. Exceptions

1

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CRIMINAL LAW STUDY OUTLINE

I. THEORIES OF PUNISHMENT

a. Retributivism i. People should get what they deserve ii. Justice for the victim iii. Rests on moral culpability b. Utilitarianism i. General deterrence: prevent any and all from acting ii. Specific deterrence: prevent this person from acting again iii. Rehabilitation II. ELEMENTS OF A CRIME a. Actus Reus i. A voluntary act

Volition
Sometimes omission a. Generally, you have no duty to act. b. Exceptions i. Statute imposing a duty to act ii. Special relationship iii. Assumption of contractual relationship to care iv. Voluntary assumption of care that then excludes others v. Creation of risk of harm (in some states) ii. Social harm
Results crimes
Conduct crimes
Attendant circumstances b. Mens Rea i. Morally culpable state of mind
General intent: only requires that you intended to commit the crime; generally morally blameworthiness
Specific intent: particular mens rea in the definition of the offense. ii. Two approaches to mens rea:
Broad “Culpability” meaning: one has a broad morally blameworthy state of mind, thus culpable for any offense committed with this state of mind.
Narrow “Elemental” meaning: one has a particular state of mind specified in the offense. iii. Levels of Culpability
Intentionally a. General intent b. Specific intent c. Transferred intent i. Harm someone else ii. Exceptions

Intent used up
Different harm – no transfer of harm
Mistaken identity
Offense requires only a specific target
Knowingly – knowledge of attendant circumstances a. Aware of a fact b. Correctly believes it exists c. Engaged in “willful blindness”
Willfully a. Act was intentional b. Act was done with an evil motive
Negligence a. Acts by failing to recognize the risk that is unjustifiable and substantial – thus wasn’t aware of the risk, but should have been. b. Carelessness, inadvertent risk taking
Recklessly a. Traditional: actor takes a very substantial unjustified risk. b. Recent: actor consciously disregarded a substantial and unjustifiable risk of which he was aware.
MPC: no wilfully a. Purposely b. Knowingly c. Recklessly d. Negligently iv. Strict Liability
Authorizes conviction of a morally innocent person or violating an offense without the need for proving a mens rea. a. Thus, such laws have no mens rea requirement – the conduct alone is a violation. b. Applies where a person is unaware of the law or misunderstands its meaning.
The person is subject to criminal liability for violating the law, even where the ignorance or mistake of the law is reasonable.
Generally applies to public welfare offenses a. Minor penalties b. No stigma of criminality, no damage to reputation c. Courts disfavor strict liability for “crimes” – requires clear indication of Congressional intent to make the law strict liability i. Express or ii. Implied v. Mistake
Mistake of Fact

ii. Proximate cause

The extent to which criminal liability attaches to a particular action that is a factual cause of a prohibited result.
To be liable, the resulting harm must be a direct and natural result of the defendant’s action.
Foreseeability : to what extent is the resulting harm a foreseeable result?
Intervening and Superseding Causes a. Arises when an intervening force comes into play after the defendant’s action but before the social harm occurs. b. Superseding Cause: the intervening cause breaks the chain of causation from D’s conduct (thus removing D’s liability). i. Does not apply if the intervening cause is reasonably foreseeable. ii. Six factors to determine if an intervening cause is a superseding cause:
De minimis contribution – not generally a legal cause.
Intended consequences – ay result intended is a proximate one.
Omissions – cannot supersede an earlier positive act.
Foreseeabilty – a. Responsive intervening cause is not superseding. b. Coincidental intervening cause is superseding.
Apparent safety – breaks the chain
Voluntary human intervention (free, deliberate, informed) – breaks the chain d. Concurrence of the Elements i. The defendant must possess the mens rea together with the actus reus of the offense. ii. Temporal concurrence : actus reus and mens rea at the same moment in time.
Delay in social harm: events lead to harm after you no longer have the intent or mens rea.
Voluntary act preceding mens rea : defendant is happy with result, but it wasn’t the intent. iii. Motivational concurrence : the mens rea for the act must also be the motivation for the act, whether at the same time or not. E.g., D wants to kill V, practicing, guns goes off and kills V even though motivation at the time was practice.

III. CRIMINAL HOMICIDE

a. Homicide i. Killing of a human by another human ii. Life begins: fetus must be born alive. iii. Life ends:

Traditional criteria: cardiorespiratory
Brain-based criteria – sustained on life support = “artificial cardiorespiratory function” b. Murder i. Common law:
Intentional killing of another human with malice aforethought
Malice aforethought a. Intent to kill b. Intent to cause grievous bodily injury c. Depraved heart d. Felony murder ii. Early Statutes (pre-MPC) – Pennsylvania model
Division of murder into degrees
First Degree Murder a. Specified manner: i. Lying in wait ii. Poison b. Intentional killing which was wilful, deliberate and premeditated i. Deliberate: to plan ii. Premeditated: to think before hand iii. Circumstantial evidence to support premeditation and deliberation includes:
Lack of provocation from victim
Actions and words of the defendant before and after the killing
Threats made by defendant before or during
History of bad blood between victim and defendant
Whether there was an additional lethal attack after the victim was already helpless
Evidence of brutality iv. Time to deliberate, for premeditation
Some time
Enough time to form intent and give it a second thought c. First-degree felony murder i. killing committed in the course of perpetrating one of specified felonies

No fixed categories
Reasonable person standard
Words a. Majority – not enough b. Minority – insulting words no, informational words yes. c. No cooling off period d. Causation – causal nexus between: i. Provocation ii. Passion iii. Homicide
Model Penal Code a. Extreme Mental or Emotional Disturbance i. State of mind ii. Reasonable expectation or excuse for the state of mind
Subjective: did the defendant actual act under extreme emotional disturbance? (Not a sham.)
Objective: the court must view defendant’s situation from an objective standpoint – was the disturbance of the mind reasonable under the circumstances? iii. Cooling off period ok here. Need not be a “sudden” heat of passion. iii. Involuntary Manslaughter (or Negligent Homicide)
No intent, but reckless (conscious disregard of risk)
Negligence (not conscious of risk, but should have been)
Unintentional killing a. Common law = involuntary manslaughter b. Statutory = negligent homicide iv. Manslaughter under the Model Penal Code
Manslaughter a. A homicide committed recklessly, but without extreme indifference. b. A homicide otherwise murder mitigated when accompanied by an “extreme mental or emotional disturbance” for which there is a “reasonable explanation or excuse.”
Negligent Homicide a. A person allows another to die through criminal negligence b. Criminal negligence: failure to realize the risk of harm of your conduct (which a reasonable person would have in that situation). d. Felony Murder Rule i. Traditional Rule
One is guilty of murder if a death results from conduct during the commission or attempt to commit any felony.

No mens rea ii. Modern Statutes – Pennsylvania Model
First Degree Felony Murder a. Death or life in prison b. Defined as death resulting from the commission of one of these specified felonies: i. Arson ii. Rape iii. Robbery iv. Burglary v. Kidnapping
Second-Degree Felony Murder: death resulting from any felony.
Limitations a. Inherently dangerous felonies i. Limits rule to homicides in the course of felonies that are inherently dangerous. ii. Two approaches:
Abstract Approach: elements are such that the felony cannot be committed without substantial risk of death (regardless of the specific case).
Facts-of-the-Case Approach: whether the crime was inherently dangerous in the manner perpetrated? b. Independent Felony (“Merger”) limitation i. Felony murder applies only if the predicate or underlying felony is independent of or collateral to the homicide. ii. If the underlying crime requires assault or physical violence, it merges with the killing. c. In res gestae limitation i. Limits felony murder to killings that occur during the commission or attempt of a felony. ii. Temporal Requirement
Only applies if the killing occurs during the time of the commission of the felony.
Only applies if there is a relatively close proximity in time and distance between the felony and the homicide.
The felony ends when the defendant reaches a place of relative safety from law enforcement. iii. Causation
Res Gestae requires more than a coincidental connection in time and place between the felony and the homicidal act.

and unlawful use of deadly force or force likely to cause serious bodily injury by the aggressor.

Unlawful Deadly Force a. Faces threat of force by an aggressor b. Threat of force that is unlawful – cannot assert self-defense in response to lawful force (such as a robbery suspect killing in response to a victim’s use of force to prevent the robbery).
Aggressor a. Self-defense is only available to the non-aggressor b. Changing roles: deadly aggressor V attacks original (non-deadly) aggressor D: i. Majority Rule: D becomes non-aggressor, V becomes aggressor; D now ok to use deadly force to defend. ii. Minority Rule: D only becomes non-aggressor if he retreats (if possible). c. V responds with deadlier force to original deadly aggressor D i. D can only regain non-aggressor status (and thus right of self-defense) by withdrawing and communicating this to V.
Proportionality: a. Non-deadly force: non-deadly force response ok b. Deadly force: i. Non-deadly force ok ii. Deadly force only ok if necessary (non-deadly force will not do).
Necessity a. Use of force only ok if necessary (thus not ok if avoidable) b. Use of force only ok to the extent necessary. c. Threat must be imminent d. Retreat i. Traditional common law rule (minority): 1. Retreat necessary if available 2. Only outside of home – Castle Exception: no need to retreat in your home up to curtilage. ii. Modern approach (majority):
No retreat requirement.
“Stand your ground”
Reasonable belief a. Reasonable: response with deadly force ok if: i. Actor has reasonable grounds to believe (objective) and ii. actually does believe (subjective) imminent danger and use of deadly force is necessary. b. if that belief is not reasonable: i. Majority: no self-defense claim

ii. Minority: imperfect/inchoate defenses – mitigation of murder to manslaughter

Model Penal Code: Use of Force in Self Protection a. “The use of force... is justifiable when the actor believes that such force is immediately necessary for the purpose of protecting himself against the use of unlawful force.” b. Not justifiable if i. The actor provoked it. ii. The actor can retreat, except in his dwelling or place of work unless he is the initial aggressor. iii. Battered Spouse Syndrome
Extension of Self Defense
Three categories a. Confrontational Homicide: i. D kills spouse during attack ii. Self-defense rules apply but with evidence of BWS. b. Nonconfrontational Homicides i. D kills spouse during “lull” in abuse. Not imminent. ii. Issues for defense:
Can jury get instruction on self-defense where attack is not imminent?
Can D introduce evidence of battered spouse syndrome? c. Third-Party Homicides i. D hires someone to kill spouse. ii. Generally no defense here.
Evidence to support battered spouse syndrome defense: a. Prior abuse – fear and signals b. Expert testimony on BWS iv. Defense of Others
Derivative of self-defense
Original Rule: Alter Ego Rule a. Intervenor could use force to defend third party only if third party in fact would be justified in using that degree of force in self-defense. b. Deadly force is justified if and only if the intervenor has reasonable grounds for believing such force is necessary to prevent danger of imminent death or grievous bodily injury.
Modern Approach (Majority) a. Intervenor may use force as it appears to the intervenor to be justified to defend the third-party even if the appearance turns out to be false. b. Influences by the MPC.
Model Penal Code – Use of Force for Protection of Others

Model Penal Code – force for protection of property a. the use of force... is justifiable when the actor believes that such force is immediately necessary... to prevent or terminate an unlawful entry... or to prevent or retake tangible movable property…to the extent the actor believes it to be … force is used immediately or on fresh pursuit…
Spring Guns: ok only if the actor would be ok to use deadly force in fact. vii. Necessity (Choice of Evils)
General Rule: a person is justified in violating criminal law if: a. Faced with a clear and imminent danger b. Reasonably believes his action will be effective in abating the danger (causal relationship between action and harm to avoid) c. No legal alternative to avoid harm d. Harm seeking to avoid outweighs the social harm of violating the law i. Balancing of harms: weight acts against the harm reasonably foreseeable at the time, not harm that actually occurs. ii. Determine whether the actor’s value judgment was in fact correct as determined by judge or jury. e. Lawmakers have not previously considered this balance and decided against actor’s choice. f. Actor did not create the danger (clean hands).
Limitations a. Only for emergencies created by natural forces b. May not apply in homicide cases c. Some states limit to protection of people and property.
Civil Disobedience a. General definition: nonviolent act publicly performed and deliberately unlawful, for purpose of protesting. b. Direct: protest law by breaking that law or preventing its execution. c. Indirect: protest law by violating others. d. Courts reject the necessity defense.
Murder of Innocents as a matter of “necessity” a. Generally necessity defense does not extend to intentional killing of an innocent person. b. The killing of an innocent person must be weighed against the benefit of saving many other lives. c. Excuse Defenses i. Theories of Excuse Defense
Deterrence Theory: conduct is excused if undeterrable
Causation Theory: a person should not be blamed for conduct caused by factors outside their control

Character Theory: punishment should be proportional to the wrongdoer’s moral character
Free Choice Theory (Personhood Theory): a person should be blamed only for action that they had the capacity and a fair opportunity to freely choose to violate moral or legal norms. ii. Duress (coercion):
A defendant may be excused for offenses other than murder if committed under circumstances where another person has threatened to kill or seriously injure the defendant or a third-party.
Requires: a. The threat must be of deadly force. b. The threat must be of unlawful force. c. The defendant must reasonably believe it. d. The threat must be present, imminent, and impending at the time of the act. e. There must be no reasonable escape. f. The actor is not at fault for exposure to the threat.
No defense for homicide a. Common law rule: duress is not a defense to an intentional killing. b. A few states recognize an imperfect duress defense, which reduces the offense of the coerced actor to manslaughter. iii. Insanity
Competence to Stand Trial a. A person cannot be tried, convicted, or sentenced if incompetent. b. A defendant is incompetent if during the criminal proceedings: i. Lacks capacity to consult with her attorney with a reasonable degree of rational understanding, or ii. Lacks a rational and factual understanding of the proceedings. c. Procedure: i. May be raised by prosecutor, defense, or judge. ii. If raised, defendant must submit to a psychiatric exam and may be committed to a mental facility during this time. iii. If found incompetent, criminal proceedings must be suspended.
Theories of Insanity Defense a. Utilitarian theory: may be pointless or counterproductive to punish those who suffer from serious cognitive or volitional disorders. b. Retributive theory:

d. Subjective Test (majority): i. jury decides whether defendant’s predisposition to commit the crime makes that defendant responsible for his actions, regardless of inducements. ii. If so, burden shifts to prosecution to prove guilt BRD due to the defendant’s predisposition not the coercion. V. INCHOATE OFFENSES a. Attempt i. Definition: occurs when a person with intent to commit an offense engages in conduct beyond mere preparation to the beginning of perpetration. ii. Two types:

Complete Attempt: actor completes all elements of the offense but fails to produce the intended result: shoots but misses.
Incomplete Attempt: actor begins but fails to complete all elements of the offense due to intervention of abandonment. iii. Common Law Attempt:
Majority a. Actor takes a substantial step toward commission. b. Merger: attempt merges with target offense once complete.
Minority: failure to consummate the target offense is an essential element of criminal attempt.
Actus Reus Tests: a. Last Act Test: one last step to completing the crime. b. Physical Proximity Test: within physical distance of subject. c. Dangerous Proximity Test: within risk of (“dangerously close” to) completing the crime. d. Unequivocal / Res Ipsa Loquitur Test: facts speaks for themselves that you are proceeding. e. Probable Desistance Test: point at which unlikely to abandon.
Mens Rea a. Requires specific intent to commit target crime. b. Legal impossibility defense: where target crime is legal, even though actor thought he was violating the law. c. Factual Impossibility – no defense: when attempt fails because things weren’t what you thought they were. (Shooting empty bed because intended victim had left.) d. Inherent factual impossibility: conduct is harmless, and would appear harmless to an observer of normal understanding.
Grading Attempt a. Attempt = misdemeanor b. Modern Statutes: degree of attempt matches degree of target crime (thus, attempted felony = felony).

iv. Attempt under the Model Penal Code § 5.

A person is guilty of an attempt to commit a crime if, acting with the kind of culpability otherwise required for commission of the crime, he a. purposely engages in conduct that would constitute the crime if the attendant circumstances were as he believes them to be; or b. when causing a particular result is an element of the crime, acts with the purpose or belief that it will cause such result; or c. purposely acts in a way that, under the circumstances as he believes them to be, constitutes a substantial step in a course of conduct planned to culminate in commission of the crime.
Conduct shall not be held to constitute a substantial step unless it is strongly corroborative of the actor’s criminal purpose: a. Lying in wait b. Enticing c. Reconnoitering d. Unlawfully entering where the crime is to be committed e. Possessing criminal tools f. Possessing or making material with no other purpose, near the crime scene
Renunciation a. Affirmative defense b. Actor abandons the effort and shows this through actions.
Grading: attempt, solicitation, and conspiracy are graded the same as the target offense. b. Conspiracy i. Common Law Conspiracy
A common law conspiracy is an agreement between two or more persons to commit a criminal act or accomplish a legal act by unlawful means.
Punishment of Conspiracy a. Allows law enforcement to intervene b. Special danger of conspiracy
Grading a. Was: misdemeanor b. Now: matches underlying crime.
Actus Reus a. Early Common Law: conspiracy arises as soon as agreement is made with intent to commit the crime. b. Modern Statutes (per MPC): conspiracy only occurs when one party commits an (any) overt act in furtherance of conspiracy.
Mens Rea a. Dual intent: intent to agree, intent to commit crime b. Providing instrumentality with knowledge of other’s intentions not conspiracy.

d. Accessory After the Fact: one who knowingly assists the felon to avoid arrest, trial, or conviction. (Today a separate lesser offense.) e. Assistance – one is guilty as an accomplice… i. Actual Assistance – only if they actually do in fact assist. ii. Trivial Assistance – no matter how trivial that assistance may be. iii. Omissions: by failing to act where there is a duty to act, if there is a requisite mens rea. iv. “Natural and Probable Consequences” – not only of the offense intended, but of any reasonably foreseeable offense committed by the primary actor. f. Degrees of Guilt: i. At common law, the accomplice could not be convicted of a more serious crime than the principal. ii. But today, an accomplice may be convicted of a more serious crime for using the principal as the instrument to commit the crime on their behalf.

Conspiracy Liability – Pinkerton Doctrine: A conspirator is responsible for any crime committed by an other member of the conspiracy, whether or not he assists, if: a. the offense is an object of the conspiracy, or b. the offence is a reasonably foreseeable consequence of the conspiracy. ii. Model Penal Code: complicity
MPC definitions: a. A person is guilty of an offense if it is committed by his own conduct (Direct Accountability) or by the conduct of another person for which he is legally accountable (Indirect Accountability), or both. b. A person is an accomplice if he has the purpose of promoting or facilitating the commission of the offense, and: i. Solicits others to do it, ii. Aids or agrees to or attempts to aid in planning or committing it, iii. Has a legal duty to prevent it, and fails to make efforts to do so, or iv. His conduct is expressly declared by law to establish his complicity. c. A person is not an accomplice if i. He is a victim of the offense ii. The offense if defined such that his conduct is incident to its commission, iii. He terminates his complicity prior to its commission and

Deprives it of effectiveness or
Gives timely warning to law enforcement or otherwise tries to prevent it.
MPC vs. Common Law a. MPC allows for greater potential liability: b. Doesn’t require assisting in fact i. “Agrees to aid” ii. “Attempts to aid”

Crim Law attack outlines, Study Guides, Projects, Research of Criminal Law

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Download Crim Law attack outlines and more Study Guides, Projects, Research Criminal Law in PDF only on Docsity!

CRIMINAL LAW STUDY OUTLINE

I. THEORIES OF PUNISHMENT

III. CRIMINAL HOMICIDE