Crimes have specific elements. In order for a person to be convicted of a crime, the prosecution has to prove each of the elements.

A crime has two basic elements (usually) - a guilty act and a guilty mind

Act + Intent = Crime
Actus Reus + Mens Rea = Crime
Actus Reus = guilty act
Mens Rea = guilty mind

Rule of Lenity = in an ambiguous statute/rule, the D gets the benefit of the doubt
(D = Defendant)

5 General Types of Intent

1) Specific Intent
 requires the act be accomplished for a specified purpose.
 EX: burglary - entry w/ intent to commit a theft of felony
        assault w/ intent to commit murder

2) General Intent
 req. accused knew he was doing the thing the law prohibits, regardless of intent
 ex: assault

MPC = Model Penal Code
In MPC states - spec or general intent

3) Recklessness (Gross Negligence)
 No intent to harm, but D performs an act which is likely to cause harm

4) Negligence
 No intent to harm, but D acts w/out exercising due care (i.e., D did something stupid, but he didn't mean to cause harm)

5) Strict Liability
 No mental state! No intent! No mens rea! You do the act, you're guilty
 Usu. don't carry high penalty; ex: environment, statutory rape (usu)

Knowingly and Willfully  - why these two words cause a bunch of headaches
Can be debate in statute whether "willfully/knowingly" referred to knowing it was illegal (illfully breaking the law) or knowing/willfully doing the illegal act but not actually knowing that the act was illegal.

There is a difference btwn actual knowlege and "knew or should have known"

"Wilfully" more powerful a word than "knowingly" in a statute
 more mens rea (mental culpabililty) req'd for wilfully

Model Penal Code (MPC) "knowingly"- awareness of a high probability

Voluntary Intoxication
Voluntary intoxication NOT a defense to a general intent crime
 like assault w/ a deadly weapon
Voluntary intoxication generally CAN BE raised as a defense to a specific intent crime
 like assault w/ intent to commit murder
 (majority view)

But unconsciousness due to voluntary intoxication is not a defense (unconsciousness does not mean passed out in this context. It  basically means 'not really aware of what one is doing')
voluntary intoxication not a defense to negligence/recklessness
 It was reckless/negligent to get drunk in 1st place

Policy reasons underlying this voluntary intoxication debate
 - he got drunk: too responsibilty for that
   vs
- alcoholism as a disease
 mental disability
 genetic predisposition

A few General Principles regarding intent:

Mistake of fact or Mistake of law as a Defense
w/ Specific Intent Crimes, this may be a defense

ex: mistake of fact, imperfect self-defense - honest but unreasonable belief, reduces murder to manslaughter

mistake of law --> claim of right

w/ General Intent Crimes
mistake of law NO defense
mistake of fact may be a defense --> DEPENDS
 may be a defense IF
 1) reasonable mistake of fact
 2) D's conduct would have been lawful had the facts been as he/she thought

 ex: Forcible Rape
 unlawful sex w/ a woman/man against his or her will by force or threat of
 immediate force
 -consent is a defense to forcible rape but NOT to statutory rape

Strict Liability
 Mist. of Fact or Mist of Law NO defense

One other note:
If a crime carries a heavy penalty (like a felony) than generally requires knowlege:
 actual knowlege or "knew or should have known"
courts don't like to make strict liability (no intent) crimes that carry heavy penalties
However, statutory rape is a strict liability crime, because it doesn't matter if the person knew that the other was a minor, but statutory rape does carry heavier penalties.

Strict Liability Crimes:

No mens rea req'd
if crime tends to carry a "stigma", like brandishing someone a thief - then not strict liability; don't containt words like "theft" or "embezzlement" which imply mens rea
(Courts don't want to brandish someone a thief if the person had an 'innocent' mind).
If carries HEAVY penalty, usually not strict liability
Usually regulatory offenses (except for statutory rape)

Actus Reus/Mens Reus:

EX: Voluntary manslaughter same actus reus as murder (the same act -- i.e., the killing of a person)
but: mens rea different (mental state is different)
 Defenses
  Unconsciousness Defense
   no actus reus, acquittal (if a person is "unconscious" then there really was no 'conscious' act)

  Diminished Capacity Defense (for more explanation, see this topic under "Homicide" below)
   no specific intent
   reduces murder to manslaughter

bottom line: an unconscious act is considered to be no act at all for criminal culpability
But unconsciousness due to voluntary intoxication is not a defense

Actus Reus = act or omission
    omission = failure to act when there is a legal duty to act

WHEN is there a Duty to Act:
 - duty to act by contract is legally enforceable (but still need mens rea for criminal)
 - If D starts fire or had some involvment in starting fire or had some connection to
 the property on fire, then there is a duty to act to put out fire, but if D has no
 connection to starting the fire or the property, then no duty b/c no good samaritan
 laws in most places.

Papachristou Case
Constitutional Challenge to statute
Statute is "Void for Vagueness"
need both
(1) Unfettered discretion in police officer
(2) Fails to give a person of ordinary intelligence fair notice that his or her conduct is illegal

void for vagueness if a person of reasonable intelligence would have difficulty determining what conduct would be prohibited and if it encourages arbitrary and erratic arrest.

what could be done to make a "void for vagueness"

-opportunity to explain conduct
-behavior warranting alarm, like fleeing from police
-judge can determine @ trial that d was truthful
ex of not vague: entry w/ intent to commit theft or felony
 entry vague but intent specific so okay

Overbreadth
statute outlaws legal (constitutional) conduct as well as illegal conduct

First Amendment
protects freedom of speech EXCEPT for "fighting words" --> words likely to produce a violent reaction
Right of freedom of speech vs right to be left alone
difference btwn communication
 in person --> disorderly conduct
 by phone --> harassment

*** HOMICIDE ***

Homicide - one person kills another
Murder - unlawful killing of a human being with malice aforethought.
  unless Felony Murder --> no malice aforethought; no intent to kill needed

         Homicide Tree

Felony Murder <-------------- Murder ---------------> Malice Aforethought (m.a.)
no malice aforeth.          unlawful killing of                     1. Express - intent to kill
no intent to kill              a human.bieng w/ m.a.              1st degree (premeditated & deliberation)

2nd degree Murder
   No Malice Aforethought  - Implied Malice
             2nd degree - no intent to kill but a  conscious disregard of a high degree risk of death

  Manslaughter
  1. Voluntary Manslaughter
   Intent to Kill
   ex: heat of passion; imperfect self-defense, etc.
  2. Involuntary Manslaughter
   No intent to kill, gross negligence
---------------------------------------------------------------------------------------------------------------------------
 Defenses to Homicide: Justification and Excuse

Provocation
as a way to reduce murder to manslaughter; negates malice
provocation must cause: a sudden, temporary loss of self control.
Mere words ever enough? maybe - words of a violent, provocative nature
admission of unfaithfulness not enought
Catch them in the act in bed --> good enough

"cooling off" period negates provocation
 revenge not provocation
What is needed for provocation in MINORITY jurisdiction?
 sudden quarrel; heat of passion; catching victim in the act of adultery
 Don't need 1 single triggering event, can have a series of events that build up
 who makes the decision as to whether D acted in provocation? JURY

MAJORITY:
need 1 single triggering event (no series of events)
Provocation/heat of passion - "reasonable person" standard
Killing has to take place right before or right after the ACT of adultery, not necessary in the act
Who makes the decision as to whether D acted in prov? In btwn judge and jury

SUPREME CT SAID: no jury instruction on provocation req'd at trial

If there is some evidence of provocation, burden of proof on prosectuion to disprove provocation

Extreme Emotional Disturbance (EED)
Negates malice and reduces murder to manslaughter
valid passion: fear, rage; NOT revenge
EED does not negate INTENT, only negates malice
Does NOT req. a single triggering event... can be a series of events
Defense has burden of proof for EED (affirmative defense)

Reasonableness of excuse of action from D's viewpoint (from person in D's situation under circumstances as D believed them to be)

Premeditation
Time factor not that relevant in premeditation.
Can form intent in an instant or have a brief lull and still no premed.
 3-Part Test for Premeditation (CA supreme ct)
1)Planning
2)Motive
3)Manner

motive not a ELEMENT of the crime of murder, but is important in analyzing premeditation. On test, define premeditation, weighing pros and cons, thinking about it beforehand, 3 prong test:

Planning
What did D do prior to the killing that amounted to a planning activity?

Motive
What facts do we have about the prior relationship btwn the D and the victim or the conduct btwn D and victim which would establish motive?

Manner
What facts about manner of killing indicate an intent to kill w/ a preconceived design?
(this is where brutality is considered, but brutality alone not determinative)

Unintentional Killing
1) 2nd degree implied malice murder
 conscious disregard of a high degree risk of death
 (an abandoned and malignant heart)
 Aware of the risk

2) Involuntary Manslaughter
 gross negligence NOT conscious disregard
 Not aware of the risk

3) Felony Murder

3A) Misdeameanor Manslaughter
 manslaughter in the course of committing a misdemeanor
 D's act in comm. the misd. has to be the cause of death
 but is death forseeable from that type of crime? issue of causation
 misd. mansl does NOT apply to misdemenaor like petty theft that are NOT inherently dangerous

Felony Murder (FM)
Any killing which is the direct result of the perpetration or
 attempted perpetration of one of the ten following felonies:
  kidnapping, rape, burglary, lude and lascivious conduct,
  arson, trainwreck, robbery, mayhem, car-jacking, drive-by shooting

The killing has to result from the felony - causation

1st degree FM
 No malice aforethought
 No intent to kill

2nd degree FM
 inherently dangerous felony

 Any killing that is the result of the perpetration or attempted perpetration of an
 inherently dangerous felony OTHER THAN the ten
 ex: furnishing cocaine as an inherently dangerous activity
In order to be an inh. dang activity, must have high probab. of death

Merger Doctrine --> An exception
If merger doctrine applies, no FM
Merger doctring when there is no independent purpose

ex: assault w/ a deadly weapon
      repeated stabs... results in homicide... assault merges with the homicide
   no FM
ex: Felony Child Abuse
 the felony c.a. is an integral part of and incl w/ the homicide
 felony child abuse --> natural result: homicide; homicide had no indep. purp.

***if there is no independent folonious purpose to the homicide, than that homicide will not bootstrap into murder under the FM rule. This happens when the homicide merges with the felony.***

EX of flip where there IS an independent purpose: Robbery; purpose to take property; then robbery will bootstrap into murder if a death results under the Felony Murder concept.

Another exception to Felony Murder (FM)
 If accomplice dies in the course of the felony, but NOT at hands of co-perps
 ex: two robbers, store owner shoots one. Other robber not guilty of FM
 Homicidal act must be D's or Co-D's: so if D takes out gun aiming for
  store owner and accid. shoots and kills co-felon, D is guilty of FM

If owner kills and shoots an innocent victim and felon initiated the gun-battle, no FM but may be implied malice murder

D's actions have to have causation to the death.

Accomplice FM
Can an accomplice be found guilty of 1st degree FM? Yes.
Accomplice Murder

Homicide- causing the death of a human being
What is a human being?

common law: Born alive rule: when a child is born alive but subsequently dies asa result of injury sustained in utero the death of the child is homicide

California: a fetus becomes a human being for purposes of criminal liability at 7-8 weeks when it has progressed through the embryonic stage (when manjor organs have been outlined

What is DEATH?
common law = no heartbeat, no respiration
modern = brain death

Causation
issue of causation if more than one credible cause of death

1) Actual Cause
 (a) "but for"
 (b) substantial factor

2) Proximate Cause
 (a) direct cause
 (b) intervening cause

Intervening cause
act of another that cuts off the D's liability
(1) Was the 2nd act forseeable?
(2) Was the 2nd act independent of the D's act or was it a reaction to the D's act?
  natural and probable consequence?
(3) If it was a rxn to the D's act, was it extraordinary?

Suicide Pact
Generally the survivor is guilty of murder - the pact gives motivation to the deceased to have gone through with the deed and also casts doubt on motivation of survivor...
but may not be liable IF
SAME relative risks and voluntary position of deceased --> but goes against weight of authority

Suicide - was Suicide the direct and natural result of the defendant's act? If so, may be liable.

When more than one proximate cause
Intervening cause - simple negligence on V's part not enough to negate D's liability

Mental Illness
(1) D's sanity at time of the offense (NGI)
(2) D's sanity at time case going to court
  Is D competent to stand trial - understand charges against him and assist
  in own defense?
(3)D's sanity after conviction
  Sanity at time person is to be executed

2 phases (bifurcated)
 * Guilt Phase
  Did the D commit the crime?
 * Sanity Phase
  Was D sane at time crime was committed?

There are two tests for Mental Illness (vary by jurisdiction)

M'Naghten Test
Due to mental disease or defect at time of the offense, the defendant did not know either:
(1) the nature and quality of his act, or
(2) that it was wrong

ALI Test
Due to mental disease or defect at time of the offense, defendant lacked substantial capacity either:
(1) to appreciate the wrongfulness of his act, or
(2) to conform his conduct to the law (even if he knew it was wront)
  volitional prong

For right and wrong: have to look at societal standard rather than D's individual ideas about what is right and wrong

Prosecution generally prefer M'Naghten test.
Insanity Defense, D has burden of proof (presumption of sanity)

Not Guilty by Reason of Insanity (NGI) - complete defense. Results in NOT GUILTY, but D can be commited for longer than would have otherwise be sent away, depending

In order to keep defendant in institution, D must be both
 (1) mentally ill
 (2) dangerous (substantial risk...)

Diminished Capacity
does not result in not guilty, may reduce murder to manslaughter

Diminished Capacity = Due to mental disease or defect, the D did not have the mental capacity to form malice aforethought
 or negates specific intent of whatever crime

Diminished Capacity requires psychological testimony

Duress and Necessity

Duress = compulsion
traditionally, duress is not a defense to intentional murder or manslaughter, but can be a defense to Felony Murder

Duress not available to defense if
(1) murder, OR
(2) D wantonly and recklessly put himself in that situation where it was probable that he would be subject to duress

Elements of Duress Defense:

(1) immediate threat of death or great bodily injury
(2) a well-grounded fear that the threat will be carried out
(3) No reasonable opportunity to escape the threatened harm
  OR no reasonable legal alternative
(4) Causal Link

effect of duress = no mens rea (no mental culpability)

Necessity:
Lesser Evil, Negates Actus Reus
Necessity applies to public good, not to personal good

Elements of Necessity:
(1) Immediacy
(2)  Actions taken must abate the evil
(3)  No other legal alternatives

not a defense to indirect civil disobediance

Self Defense - There are two types of self defense: Perfect and Imperfect

Perfect Self Defense
 Honest and objectively Reasonable belief in the need to defend against imminent danger of death or great bodily injury

Normal burden on prosecution to prove NOT self defense
(burden to prove the element of "unlawful" killing if "unlawful" is indeed an element, as it is in almost all jurisdictions)

Imperfect Self Defense
Honest but objectively unreasonable belief (ex: if you think your neighbor is an alien trying to kill you, that may be an honest belief, but it isn't objectively reasonable)
reduces murder to manslaughter, not a defense to manslaughter

RETREAT
2 jurisdictions
(1) Retreat - Model Penal Code
 if you have the opportunity to retreat, you must
(2) No duty to retreat - CA ("The Wild West" philosophy)

Deadly Force
Justified in using deadly force to prevent a felony if:
forcible and atrocious crime which creates a reasonable fear of bodily harm

Consent
Not a defense to battery or assault

Inchoate Crimes - "incomplete crimes"
(1) Attempt
(2) Solicitation
(3) Conspiracy

Complicity Crimes
(1) Aider and Abettor (accomplice)
(2) Conspiracy

attempt - merges with target crime if target crime committed
conspiracy - merges in some jurisdictions (minority)

Attempt (crime)
Elements
(1) intent to commit crime, AND
(2a) commence consumation of the crime (minority: CA and common law)
  D must come w/in dangerous proximity of committing the crime; harder to prove
(2b) substantial step (majority and MPC)
  has to be strongly corroborative of the D's criminal purpose

categories of attempt
(1) D goes all the way but is somehow unsuccessful
  ex: gun jams
(2) outside force stops D (intervention)

Abandonment is a complete defense to attempt, but it is an affirmative defense so burden of proof on D
(In an Affirmative Defense, the burden of proof is almost always on the defendant)

Abandonment = voluntary and complete renunciation of the criminal purpose

Attempted
3 ways
(1) subjective view on part of D where D's purpose is to cause his goal
(2) reasonable person - circumstances as a reasonable person believes them to be
(3) reasonable person - substantial step

Conspiracy
An agreement btwn two or more persons with a specific intent to commit a crime with at least one overt act by at least one party for the purpose of accomplishing the agreement

OVERT ACT: any step taken or act committed by any one of the parties that goes beyond mere planning and agreement and done in the furtherance of the object of the conspiracy

Elements:
(1) agreement w/ another
(2) overt act
(3) intent that crime be committed

2 Jurisdictions with differing views on what is required for conspiracy:
Bilateral - need an actual agreement btwn two or more criminal minds
   fed and common law, including California
Unilateral - D believes he is agreeing with the criminal (so a defendant can be guilty of conspiracy if he is in 'conspiracy' with a secret agent. The secret agent does not have a 'criminal' mind, only the defendant has the 'criminal mind')
      This is the Model Penal Code (MPC) approach

DEFENSE to conspiracy: Withdrawl (not abandoment)
A co-conspirator is liable for all acts committed by other co-conspirators in furtherance of the object of the conspriracy up until the pointt that he withdrawals

Co conspirator needs to verbalize withdraw and actually thwart the object of the conspriracy (MPC)  - complete and voluntary renunciation

Majority: have to communic. your with to the fellow conspirators

Intent - things to look at
(1) $ stake in the enterprise
(2) nature of crime - misd. or felony
(3) is there a legitimate use for the goods or svcs?
(4) was the volume disproport. to the legit demand or was this a signif. portion of the D's business

Conspirator only liable if he is either an "Aider and Abettor" or a priniciple perpetrator
Co-conspirator is responsible for acts done by co-consp in furtherance of the conspir. if acts are reasonably forseeable, even if he didn't actually agree to those acts or even know about them.

MPC if guilty of target crime, can't be guilty of conspiracy
Majority and common law - can be held liable for both conspiracy and the target crime

Wharton's Rule (Conspiracy)
An agreement btwn 2 persons to commit a crime cannot be prosecuted when the crime is of such a nature as to necessarily require the participation of two persons for its commision (ex: adultery)

Assault and Present Ability
Assault req's present ability

GEN RULE/MAJORITY
 Did D believe that he had present ability to commite the crime
 subjective test

CALIF
 objective test
 if outside force prevents crime, D guilty
 but if def brings an unloaded gun, even if he thinks it is loaded, no present ability

Aiding and Abetting
(A&A = Aiding and Abetting or the person who Aids and Abetts)
Principals:
(1) perpetrator
(2) A&A

3 elements
Person aids and abets commission or attempted commission of a crime by
(1) knowledge of unlawful purpose of perp, and
(2) intent that crime be carried out
(3) by act or advice, aids, encourages, promotes, or instigates the commission
 of the crime

A&A liable for all natural and probable consequences stemming from the crime
 AA can withdraw if he tells others he intends to withd from the comm. of the
 crime and does everything he can to prevent its commission

A&A felony child abuse -- legal duty to act by special relationship -- parent-child

A&A burglary - intent must be formed anythime before departure for D to be liable as an A&A even though perp has to form intent at or before pt of entry, but perp must have the requisite intent to hold A&A liable.... but guilt of perp need not be established to convict A&A

A&A negligent or reckless crime - like manslaughter
 A&A must be aware that the perp is engaging in conduct that grossly deviates from the standard of reas. care and poses a subst and unjustifiable risk of death to another

THEFT

Larceny
A crime against possession, not ownership
*Trespassory taking and carrying away of personal property of another with intent to permanently deprive*

begins with the taking and ends when D takes a step
Intent to perm deprive has to coinc w/ the taking

Embezzlement
requires
(1) a relationship of trust and confidence
(2) pursuant to the relation of trust and confidence the property is entrusted to the employee
(3) employee fraudulantly appropriates property to his own use
(4) no req'd intent to permanently deprive

Intent to Permanantly Deprive
3 ways
(1) if you intend to sell it back to the owner
(2) you claim a reward for "finding" the property
(3) you return it for a refund or use it to get a ransom

Receiving Stolen Property
receiving stolen property with the knowledge that it has been stolen

(1) D bought, received or withheld property which was either stolen or obtained by extortion, and
(2) D actually knew the property was stolen at the time of the receipt

Possession of recently stolen property combined w/ attempts to conceal the property, evasive or false statements, or an unusual manner of acquisition enough to uphold conviction of rec. stolen property; generally can't convict both of receiving stolen property and of stealing

**cannot steal from yourself (partnership)**

Theft by False Pretense
Crime against TITLE
(1) D makes false representation to victim
(2) w/ the specific intent to defraud the victim
(3) victim relies upon the false rep
(4) victim intended to and parted w/ ownership of the property
      and victim must intent to transfer ownership to the D

D made either a false pretense of misrep of an existing or past face or D made a promise w/out the intent to perform. (promise part in minority)

false rep - existing or past fact
false promise - future

Theft by Trick or Device
(1) D obtained possession of property of another
(2) by making a false promise or other similar fraud
(3) The victim did not intend to transfer ownership to D
(4) the D obtained possession w/ the specific intent to permanently deprive

Robbery
(1) Victim has possession of property of some value, however slight
(2) property is taken from the victim's person or immediate presence
(3) against the v's will
(4) taking by force, violence, fear, or intimidation
(5) w/ specific intent to permanently deprive

if element 4 based on fear, has to be fear of physical injury to the victim's person or property or to victim's family or to a person or property phsyically present w/ the victim at the time of the robbery

Robbery remains in progress until the robber has reached a pt of temporary safety

defense: claim of right if no force used and if recovering specific chattel that is yours, not fungible goods like cash

Extortion
(1) D obtained money or property from another (victim)
(2) with the consent of the victim
(3) consent involunary and induced by wrongful use of force or fear
(4) D had the specific intent to induce the victim to tranfer property to the D

if extortion based on fear, the fear may be induced by threat
(1) to inflict wrongful injury
(2) to accuse someone of a crime
(3) to expose someone to disgrace
(4) to expose a secret exposing the person threatened

defense: is presentation of evidence to embezzlement admissible as a defense to extortion? YES, must be limited to amt embezzled (and maybe no threatened use of force)

Theft from a Person
(1) Theft of personal property
(2) from the person of another
(3) property must be on the body or in the clothing worn by or in a receptacle carried by the person
(4) with the specific intent to permanently deprive

how different from robbery: no use of force needed in theft from a person

FRAUD
wire fraud - scheme to defraud or obtain $ or property by false pretenses and interstate commerce

Prosecutorial Discretion
Pros. has the discretion to decide what the D is charged with;
only prosecutor may bring charges

Plea Bargains and charges
Is there a limit to prosecution from filing charges?
YES, but ONLY IF is motivated by racial or religious facors (discriminatory motive)

Jury Nullification
(Where Jury ignores the law and votes its conscience)
Can D have judge tell jury they have right to nullify?
No, except in two states

Right to Jury Trial
If case carries over 6 months in jail
Right to be rep by atty if jail time ultimately can be imposed

Voir Dire--> To say the truth

challenges to jury selection, 2 kinds
(1) cause
 challenge for legal cause... chall. judge makes
(2) peremptory
 discretionary challenges

D right to voir dire when
* Capital Prosecution
* Interracial Situation
* D requests

but judge can allow voir dire otherwise (discretion)

peremptory challenges:
atty can excuse juror for any reason except race, gender, age

D - jury - right to cross section of community

Preliminary Hearing
D can see some of the evidence against him
D can be dismissed (case)
D can X-examine witnesses

Prosecutor's burden of proof
Prosecutor has the burden to prove each element of the offense
cannot shift burden of proof to D on an element of the offense

SENTENCING
when a person is sent for a felony, 2 options:
(1) state prison
(2) felony probation

judge can sentence w/in the statute

Probation
is a privilege not a right.
D has to accept terms and conditions of judge if D accepts probation

but, in order to be constitutional, probation:
(1) must be Reasonably related to the offense
(2) must not impinge on a fundamental constitutional right
(3) less drastic alternatives, if available, should be given

Capital Punishment Scheme
jury must be 'death qualified' - have to make sure no one on the jury is against the death penaly
Bifurcated: Georgia
Guilt Phase
Penalty phase - new trial to decided LWOP or Death
jury balances Aggravating circumstances and mitigigating circumstances.
has to minimize arbitrary and capricious behavior by jury
need clear and objective standards
state capital sentencing statute must narrow the category of conduct
 D's who are eligible for the death penalty
 ex: all murder one D's

~end~