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Crim Law Outline 1 Notecards


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What is a crime?
What makes something a crime is a conduct that gets a formal and moral solemn announcement of the moral condemnation of the community/society as a whole. A felony is prison for at least a year, a stigma and moral condemnation exists. A misdemeanor is not as bad.
3 examples of types of crimes
i) Result crimes – prohibiting a specific result, such as the death of another person; ii) Conduct crimes – prohibiting a specific conduct, such as driving a motor vehicle while intoxicated, even if tangible results do not result; iii) Possession
Theoretical basis for Justifications of Punishment
i) RETRIBUTIONIST Wrongdoer deserves punishment because of an immoral invasion of another’s rights. Punishment is allowed if the bad act stems from the free choice by a responsible agent (premise is that people have free will). Focused on past action, not deterrence of future crimes; ii) UTILITITARIAN punishment: happiness for most people. There is a cost associated with punishment, but it is worth that cost for the betterment of society (“augment the total happiness of the community”). This is forward looking;
4 types of deterrence
(a) Specific Deterrence (deter that criminal from further crime); (b) General Deterrence (deter others from crime); (d) Rehabilitation (reforming the individual so he is unlikely to commit offenses in the future) ; (e) Incapacitation ;
Some forms of Punishment
a) death, imprisonment, exile, fines, forfeiture of property, shaming, removal from public office, disqualification.
Which Amendment are jury trials grounded in?
sixth (6th) amendment: "Impartial jury.. Max more than 6 months or substnatial fine".
Some of the purposes of jury tirals.
a) Fact finding: determine facts (with a minimum degree of uncertainty); b) Attribution of guilt or innocence; determine whether responsibility sufficient to require punishment; c) Express community consciousness or determination; d) Protect from government interfering;
What is the gist of "jury nullification"?
Jury nullification is not a constitutional right nor supported in caselaw: b) State v. Ragland: Instruction “Must” in possession charge, Jury nullification case: i) The power of jury nullification is not a precious attribute of a right to trial by juror
Some of the problems and solutions to jury trials
PROBLEMS: i) Juries may not understand the laws (studies show low comprehension rate, 13-73%); ii) Juries may forget the laws; SOLUTIONS: i) Timing: jury instructions before and after evidence; ii) Comprehension: note taking, rewrite instructions, supplement oral instructions. Allow questions.
What is the Principle of Legality?
i) No criminal liability or punishment without: (1) Prior legislative enactment AND (3) Expressed with precision and clarity/fair-notice/nondiscrimination.
For the principle of Legality, what does "Expressed with precision and clarity/fair-notice/nondiscrimination." mean?
(a) Statutes can be invalidated if they are too vague or too broad and need fair notice and to be nondiscriminatory. Ex: (i) City of Chicago v. Morales: too vague anti-loitering rule struck down: To meet the requirements of the Due Process Clause and thus survive invalidation due to vagueness, a criminal law must provide sufficiently specific limits on the enforcement discretion of the police and sufficient notice to the public of what conduct is prohibited. Failure to provide adequate notice and limit arbitrary acts by government employees.
What are some of the pros and cons of the principle of legality?
PROS: i) This preserves the opportunity for notice; ii) Promotes deterrence; iii) Avoids over deterrence where vagueness makes people scared that they are committing crimes; iv) It assures that criminal laws are a legislative function; v) It reduces potential to abuse of discretion created by unclear statutes; CONS: i) Greater precision and clarity is not non problematic. Where do we draw the line?
Ways to Interpret statutes
a) Use the dictionary; b) Look at the rest of the statute (like in mens rea discussions); c) Look at previous cases interpreting the same word in a related statute; d) Devise reasonable interpretation consistent with legislative intent and/or legislative history ; e) Rule of lenity as a last resort/tie breaker.
What is the Rule of Lenity?
(1) If a statute can be reasonably interpreted in two different ways, one favorable to the state and one favorable to D, we must interpret it in favor of D. EX: (a) United States v. Foster: What does “carry” for drug trafficker mean? :A simple English word such as carry can require statutory interpretation to ascertain legislative intent.
General definition of Actus Reus
1) Actus Reus (physical/external part): a) Definition: the physical, or external, component of the crime. b) So many punishments would happen if someone does something, perhaps due to bad luck. Then it would be unjust if we punished people for such.
What is a general restatement of an Attendant circumstance?
(ie the time or nature of the victim): (1) a dwelling house, of another, at night time.
What is the general rule of Actus Reus?
a) Courts will interpret each offense to include at least one voluntary act./i) Must contain a voluntary act, or an omission under which there was a lawful duty to act
What does it mean to have a voluntary act?
(a) Not necessary that all aspects of conduct be voluntary, only that the conduct included a voluntary act--(i) Voluntary act/Social Harm: Look at the social harm we try to prohibit (bad driving) and add that such an act is voluntary (deciding to drive) and thus there is liability. 1. State v. Utter: Killer father with war conditioned response A voluntary act requires the consent of the actor’s will. Conditioned response is not act of will, thus involuntary. (ii) Involuntary: 1. Martin v. State: Drunk at home taken by police to highway, violate statute? A defendant must perform the physical act (voluntary) for each element of a crime that has an actus reus component. --Note-- (b) The Supreme Court has invalidated statutes that punish a status or condition (i.e. drug addiction, vagrancy)
Five situations where failure to act may constitute breach of legal duty for criminal liability
(a) Statutory Duty: Criminal statue imposes duty to act; (b) Duty by Status: Status relations creates duty (landowner; employer; marriage); (c) Duty by Contract: Hurricane Katrina handout case where nursing home had a duty to care for residents. Bystanders have no duty; (d) Duty by voluntary assumption – one who voluntarily assumes the care of another must continue to assist, but only if the later omission would place victim in a worse position than if the person had not started care at all; (e) Duty by risk creation – one who creates the risk of harm must act to prevent ensuing harm
Reasons to limit liability for omissions.
(a) Autonomy—private space; (b) Too hard to draw the line; (c) More harm than good (bystander danger); (d) Enforcement difficult (how do you know that someoen noticed?); (e) Notice (People wouldn’t expect failure to act to be criminal); (f) He made his bed, let him lie in it
What is the nature of the Crime of Possession?
a) Possession is an act, but not per-se. b) If you fail to terminate your possession, this is enough to terminate your act requirement. c) Involuntary possession requires immediate disposal at first opportunity to prevent liability.
What are the general and elemental senses of mens rea?
a) General mens rea: “wicked”; morally culpable (old common law); b) Elemental mens rea: e.g. intent, recklessness, etc. – a particular mental state
What are the 4 (and special 5th) frequently used common law terms?
a) Intentionally: Def has conscious objective to cause social harm, or knew it was virtually certain to occur; b) Knowingly: Def was aware of, or deliberately ignorant of (willful blindness), social harm; c) Recklessly: Def took substantial and unjustifiable risk of which he was aware; d) Negligently: Def took substantial and unjustifiable risk (we don’t care whether or not he was aware of the risk); e) Strict Liability: Def committed act; mental state irrelevant
CL MR Intentionally
Def has conscious objective to cause social harm, or knew it was virtually certain to occur
CL MR Knowingly
Def was aware of, or deliberately ignorant of (willful blindness), social harm
CL MR Recklessly
Def took substantial and unjustifiable risk of which he was aware
CL MR Negligently
Def took substantial and unjustifiable risk (we don’t care whether or not he was aware of the risk)
CL MR Strict Liability
Def committed act; mental state irrelevant
How to apply MPC Mens Rea terms?
i) Hierarchical (see § 202) ii) Need to prove mens rea for each element of the crime. Elements may include:(a) Nature of the forbidden conduct (b) Attendant circumstances (c) Result of the conduct
What are the 4 MPC MR states?
1) Purposefully; 2) Knowlingly; 3) Recklessly; 4) Negligently
Purposefully (Nature of the MPC MR)
"(1) Conscious objective – hoped for X (2) D had as conscious objective to cause the social harm, or he knew that the social harm was virtually certain to occur. (3) Subjective. EX: (4) People v. Conley: High School drunken bottle fight. Defines Intent. A person acts with intent if it is his conscious object to cause a social harm or if he knows that such harm is almost certain to occur as a result of his conduct. Difference between: “a person who, in committing a battery, intentionally or knowingly” or “a person who intentionally o knowingly commits a battery”… Transferred intent doctrine. (5) Regina v. Faulkner: Sailor stealing rum burns and sinks ship: If he intended to steal the rum, then he should be liable for the fire. The spark act was intentional and thus there is liability. His act was one that was a foreseeable and natural consequence of the theft. (6) Transferred intent: Cannot use transferred intent to jump across social harms. Intention to commit murder but instead commit arson cannot have transferred intent. There is attempted murder liability but not arson liability.
Knowingly (Nature of the MPC MR)
(1) Believed X exists or would occur (2) D was actually aware of, or was deliberately ignorant of (or willingly blind to) the social harm. (3) Subjective (4) Willful blindness: Many jurisdictions, like the MPC, provide that a defendant that is “willfully blind” regarding a material fact possess the equivalent of knowledge of that fact
What is Willful Blindness (Ostrich instruction, etc)
(a) Many jurisdictions, like the MPC, provide that a defendant that is “willfully blind” regarding a material fact possess the equivalent of knowledge of that fact (b) The ostrich instruction: "The elements of knowledge may be satisfied by inferences from the proof that a defendant deliberately closed his eyes to what otherwise would have been obvious to him. But if the evidence shows you that the defendant actually believed that the thing did not exist, he cannot be convicted. Nor can he be convicted for being stupid or negligent or mistaken." A court may find willful blindness if it determines that they almost knew or that there was a high probabilty that they knew.
Recklessly (Nature of the MPC MR)
(1) Default and minimum for reading culpability in. (2) Realized risk of X divided by disregard of it (3) Realized risk of X + disregard (4) D takes a substantial and unjustifiable risk of which he was aware. (5) Subjective
Negligently (Nature of the MPC MR)
(1) Reasonable person would have realized risk of X; (2) D take unjustifiable substantial risk; (3) Objective. He doesn’t have to know that it was a risk.
MPC: To which Actus Reus element does Mens Rea apply?
i) MPC 2.02: General requirements of Culpability pp 993: “a person is not guilty of an offense, unless he acted purposely, knowingly, recklessly or negligently, as the law may require, with respect to each material element of the offense.”
What does Mens Rea apply to in MPC and Common Law?
a) If MPC, mens rea applies to all elements of crime, even if statute doesn’t specify; b) For common law this is not necessarily true. Usually applies to first verb, but look to legislative history, etc. to determine
How do we determine which Mens Rea applies?
a) Look to definition of offense in statute itself—does it clearly specify the required state of mind? b) Apply statutory construction skills: look to offense as a whole, related provisions, legislative history, etc. c) Is the statute really vague? If so, use the general intent default ((1) For many states this is negligence(2) For federal statutes this is knowledge(3) For MPC the default is recklessness )
What are the Mens Rea Defaults?
(1) For many states this is negligence; (2) For federal statutes this is knowledge; (3) For MPC the default is recklessness
General rule of Transferred Intent
General rule: intent can transfer only if the result differs w/ respect to the identity of the victim. Can’t skip social harms
Under what circumstances are we more likely to intrepret as SL?
(1) public welfare offense - degree of social danger is usually high; safety could be threatened by the violation (a) Eg: parking violations, food altercation. (2) conduct that is wrongful only because it is prohibited, rather than inherently wrongful (i.e. speeding, as opposed to murder) (fyi: this is a malum prohibitum, see infra) (3) penalty usually very minor
What Mens Rea is Statutory Rape?
(1) Garnett v. State: Retard gets statutory rape: Mistake of age is not a defense to the strict liability crime of statutory rape. Strict liability here also due to her being in the group of people to be protected (e.g. vaginal intercourse) for girls (underage)
Does Silence on Mens Rea mean strict liability per se?
Silence on Mens Rea does not mean strict liability per se. i) Staples v. United States: AR-15/M16 semi auto unknowingly, violate federal statute: If a federal crime does not expressly state a mens rea requirement, the determination of the necessary mental state is made by construing the statue itself and by examining the intent of Congress. Silence as to mens rea does not mean strict liability per se.
What is the MPC stance on Strict Liability?
MPC: Strict liability abolished, except for violations, for which imprisonment is never permitted
What are the Policy reasons for strict liability
i) Need for the deterrence is great and proving mens rea is hard. Food altercation ii) When the penalty is small and the number of cases is relatively large. Parking violations.
Two (2) Approaches to Mens Rea mistake of fact
(1) Old common law rule – if crime is general for mens rea (wicked), mistake must be reasonable; (2) Modern approach – if mistake negates mens rea, then not guilty regardless ore reasonableness or excuse.
Specific Intent: What is the Mens Rea Mistake of Fact for Specific Intent Crimes?
(1) Specific intent crime: requires not only the doing of an act, but the doing of it with a specific intent or objective (i) Example: larceny: “a taking and carrying away….with intent to permanently deprive the person of his interest in the property” (2) If specific intent, does mistake relate to the specific intent portion of the offense? (a) If yes, if mistake negates the specific intent element, then acquit (b) If no, treat as general intent crime
General Intent: What is the Mens Rea Mistake of Fact for General Intent Crimes?
If general intent, do culpability analysis (did D act with a morally blameworthy state of mind?) (a) If mistake unreasonable, then guilty, b/c unreasonable mistake implies culpable state of mind (b) Even if reasonable, sometimes guilty under moral wrong and/or legal wrong doctrines, detailed below
Flowchart for Common Law Approach to determine if it is a specific or general intent crime.
What is the MPC approach to Mistake of Fact?
(1) Mistake of Fact (MPC, § 2.04) (a) General rule: Mistake of fact is defense if it negates a mental state element required in the definition of the offense (like common law approach but because there is no specific/general intent, applies to mens rea terms in MPC) (b) Defense of mistake-of-fact inapplicable if D would have been guilty of a lesser offense if facts had been as she believed them to be. However, D will be guilty of the lesser offense instead of the greater offense (2) MPC 2.04: Ignorance or mistake (a) 1a: “although ignorance or mistake would otherwise afford a defense to the offense charged, the defense not available if the defendant would be guilty of another offense had the situation been as he supposed. (b) The MPC does not differentiate between specific and general intent (c) MPC does not bump up. Common law would bump up. (ie add underage to illegal trafficking of women) (legal wrong doctrine)
What is the Moral Wrong Doctrine and what are the courts stance toward this?
(1) Even if actor’s mistake is reasonable, intentional commission of an immoral act is enough blameworthiness to justify conviction (2) Modern courts very resistant to this doctrine
What is the Legal Wrong Doctrine? (and CL and MPC approaches to this)
(1) If D’s conduct, based on facts as he believes them to be, constitutes a crime – not simply an immorality (a) Under Common Law, he may be convicted of the MORE serious offense of which he is factually guilty, though he was mistaken in a key fact (Ex: transporting girl across state lines for prostitution) (b) Under MPC, he will be convicted of the LESSER crime
What is the approach for Mistake (or ignorance) of law?
i) Generally, not a defense. ii) Exceptions: (1) Reasonable reliance (on official interpretation of law later found invalid) (2) Fair notice (3) Failure of proof
What is the Mistake Doctrine's Reasoanble Reliance exception?
(1) Reasonable reliance (on official interpretation of law later found invalid) (a) A statute is later found to be invalid (b) A decision by a higher court if turns to be irreverent later changes an interpretation (c) There is an official but wrong interpretation of the law from a person or public body charged with the interpretation, administration or enforcement of the law. (i) People v. Marrero: Fed Correction Officer guilty of Gun possession, mistake? (Class given) No mistake of law defense unless specific intent negated or D relied on law, through official restatement, that was later ruled to be invalidated. (Supplement given) An erroneous interpretation of the law does not excuse violation of the law, even where the interpretation is reasonable.
What is the Mistake Doctrine's Fair Notice exception?
(a) person may not be punished for an offense unless the statute is sufficiently clear that a person of ordinary intelligence can know its meaning (b) Lambert v. California: Convicted person registration ordinance violate due process? (i) Lambert Defense:1. It is a crime of Omissions AND 2. Statute affects a subset of people due to their status/status condition (“felon”) rather than their behavior (a. Note: a profession is not a status. Lack of fair notice, therefore, is not lack.) AND 3. The crime is minor – malum prohibitum (not a traditional violent or dangerous crime, more like an infraction).
What is the Mistake Doctrine's Lambert defense?
Lambert v. California: Convicted person registration ordinance violate due process? (i) Lambert Defense:1. It is a crime of Omissions AND 2. Statute affects a subset of people due to their status/status condition (“felon”) rather than their behavior (a. Note: a profession is not a status. Lack of fair notice, therefore, is not lack.) AND 3. The crime is minor – malum prohibitum (not a traditional violent or dangerous crime, more like an infraction).
What is the Mistake Doctrine's Failure of Proof exception?
(a) (mistake that negates SI)
What are the two types of causation that must be satisfied before there is causation? ("but for..")
Common Law: D’s conduct has to be both the cause-in-fact AND the proximate cause.
What are the two different ways to satisfy cause in fact?
(1) But for test (this is the typical test)--But for D’s actions V would not have died when he died; (2) Substantial factor test--But for D’s actions V would not have died when he died the way that he died. Used when there are concurrent causes of the death and thus each actor isn’t a but-for cause
What is proximate cause?
(1) Is it reasonable to hold the defendant responsible? (ii) Proximate cause usually satisfied in intervening c ause was 1. Intended or reasonably foreseeable AND 2. Not too remote or accidental to hold D responsible. Note: Remember that negligence is foreseeable; what isn’t foreseeable, however, is gross negligence. Bear mauling and years later death not foreseeable. Negligent surgery and hemophilia (take victim as you find him) is. There is no black letter law for proximate cause, just experience and examples.
What is the importance of the Concurrence of the elements?
(1) Causation only satisfied if actus reas and mens rea occur concurrently (2) Must prove beyond a reasonable doubt that defendant’s actus reus and mens reus concurred. ie: If you complete the act but after change your mind and don’t want him dead, you’re still liable.
What is MPC causation?
MPC: also uses but for test, along with any other causal requirements that are required by code or the statute defining the offense at issue.
Causation flow chart
Cause-in-fact tests
a) But-For test--i) “But for the defendant’s actions, the victim would not have died”; b) Substantial Factor Test--ii) “But for the multiple defendants’ actions, the victim would not have died when he died, the way that he died.”
Dependant intervening causes (i.e. D held responsible) includes:
a) Harm intended or risked differs from manner in which actually occurs (i Poison liver or kidney, if he dies it’s the same_; b) Pre-existing conditions or negligent medical treatment (i Foreseeable. You are still the causal agent); c) Foreseeable human action or response (i E.g. foreseeable that rescuers will be negligent)d) Contribution causes (i E.g. hastening. Not off the hook for giving them a suicide gun after you beat them up. )
Independent intervening causes (i.e. D not held responsible)
a) Grossly negligent or reckless medical treatment b) Unforeseeable human action or response c) Cannot identify specific causal mechanism--Defendant not responsible for independent intervening cause unless its occurrence was reasonably foreseeable in the defendant’s situation.
Murder (CL)
Murder (Killing + Malice)
How to get Malice for Murder
i) Malice: 4 different ways to get malice (requirement for murder): (1) Intent to kill [Premeditation (Morrin, Shrauder) (2) Intent to commit serious bodily injury (3) Depraved heart (extreme recklessness); (4) Felony Murder
The Morrin Standard of Premeditation
(i) Morrin standard (show premeditation and deliberation (evaluation in the absence of hot blood))
The Shrauder Standard of Premeditation
(ii) Shrauder standard (premeditation only has to exist for the twinkling of the eye) "1. State v. Schrader: Store argument leads to death by stabs 51 times A killing can be willful, deliberate and premeditated even if the intent to kill did not arise until the instant in which the killing took place. Premeditation in murder in the first degree can be instant. "
What are the elements to determine if something is done with a depraved heart?
(i) High probability that the conduct will result in the death of another human being " D’s recklessness was particularly extreme or gross (i.e. “showing extreme indifference to human life”)" (ii) D’s recklessness was particularly extreme or gross (i.e. “showing extreme indifference to human life”) "D subjectively realized that her conduct posed a risk to human life (if so, then was reckless)" (iii) Subjective appreciation of the risk--Was there no good reason to take the risk or was the risk extreme? [Base anti-social purpose or motive (implied malice)]
Berry v. Superior Court (pit bull case) Factors to look at for Depraved Heart
(i) High probability that conduct would result in death? (ii) Subjective appreciation of the risk? (iii) Anti-social purpose or motive? [(iv) The guy did not purposefully have the child die but because he was so reckless, that we can assume because of that depraved heart, malice and so have murder. (v) There was not a depraved heart. There was no malice and no murder. Involuntary manslaughter. ]
What is Felony Murder?
(i) Felony + Homicide = Felony Murder: A killing that occurs during the perpetration of a felony, an attempted felony, or the flight thereof in which the D is guilty of the felony or the attempt (ii) The felony murder rule authorizes strict liability for a death that results from a commission or attempted commission of a felony. (iii) Does not require a mental state—is a strict liability offense
Justifications for Felony Murder Rule (FMR)
1. Deterrence (But: a. Howe does one deter an unintended act? b. Few felons know of this rule) 2. Transferred Intent (and its benefits) (But: i. But we don’t transfer intent across social harm.) 3. Reflect relevant social norms. (But: Why not separate them?)
Limits on the felony murder rule
1. Inherently-dangerous felony limitation [abstract approach-- Abstract: Look at the definition of the crime and ask whether the offense could be committed without creating “a high probably” of loss of life vs. particular case approach--Case-by-case (“facts of the case”) approach asks whether felony was committed with risk to human life] 2. Merger Limitation/Independent felony limitations--Underlying felony must exist separately from the killing 3. Causal Limitations--a. Agency theory: was death in furtherance of the felony? Felons are not the “cause” of deaths produced by those antagonistic to the felony (similar to Death of co-felon. Use this kind of wording, however) b. Proximate Cause theory: was death foreseeable? 4. Res gestae requirement--Homicide has to be close in time/proximity to felony; there has to be some sort of relationship/causation 5. Death of co-felon. a. Killing by non-felon [agency rule--Agency: a felon is only responsible for homicides commited in furthance of the felony, by a person acting as the felon’s agent. Homide commited by a police officer, felony victim or bystander then falls outside the felony-murder rule. vs. proximate cause approach--ii. Proximate cause: a felon may be held responsible for a homicide perpetrated by a non-felon if the felon proximately caused the shooting. The shooting is a foreseeable response to the felon’s conduct. ]
Case example of the FMR Merger Limitation/Independent felony limitations
Almost always arises in assault cases—assault is said to merge with homicide so can’t use FM: --- People v. Smith: Discipline child beating leads to death and no 2nd degree felony murder. Felony child abuse which results in death is held to merge with the homicide so as to preclude a conviction of second degree murder on a felony murder theory. Scope of the Felony Murder rule is restricted by holding it inapplicable to felonies that are an integral part of and included in fact with the homicide. They merged.
Reference: Know automatically that the following are felonies
(a) Robbery (b) Burglary (c) Rape (d) Arson (e) Kidnapping (f) If it is enumerated as a felony in the code (g) If the crime could result in 1+ years in prison or death.
Degrees of Murder--Common Law
(1) Old CL did not separate murder into degrees, but lots of state statutes do (i) Different ways of assessing premeditation, but basic idea is that there is enough time for a second thought (ii) Deliberation is sometimes looked at in terms of whether act was done “in hot blood” (b) Second degree murder is usually an intentional killing that was not premeditated
What is Voluntary Manslaughter
i) Voluntary Manslaughter (“heat of passion”/provocation)(act as partial defense to murder) (1) This is how a state can mitigate first degree murder to manslaughter. (2) An intentional killing distinguishable from murder (ie lacking malice) by the existence of adequate provocation (ie killing in the heat of passion).
What kind of provocation must there be to reduce murder to manslaughter?
(i) Provocation had to cause D to lose control (and a reasonable man would have had to do so too) 1. Whether is reasonable can be determined based on sex and age of D [ Ex: adultery Ex: words are not enouph. ] 2. Can’t have had time to cool down, and can’t have cooled down 3. Can’t fulfill adequate provocation when you have a pre-existing intent to kill
What are the factors to determine if we have adequate provocation?
1. Provocation must have been on that would arose sudden and intense passion in the mind of an ordinary person in D’s circumstances such as to cause him to lose self-control; 2. D must have been in fact been provoked; 3. Not enough time between the provocation and the killing for the passions of a reasonable person to cool (factual question); 4. D in fact did not cool off between the provocation and the killing; And 5. Causal connection between the provocation, passion and fatal act.
What are the Legal Trends for Provocation
1. “Adequate provocation” a. Allow jury to decide what sort of provocation would render an ordinary person liable to act rashly b. Incorporate many of D’s traits, but not subjective traits that related to reduced self-control c. Last straw theory (in CALIFORNIA) If someone irks someone over a long period of time, you can use evidence of small irks and the collectively use them as provocation. 2. “Suddenness” a. Leave decision to the jury 3. “self control” a. Sex and age are all that we need. i. Since women are less violent, she would be less likey because she responded more strongly than someone normally would. Held to a higher standard.
What are the two (2) kinds of Involuntary Manslaughter (no malice)
i) Accidental Killings ii) Show Criminal Negligence ((1) Criminal Negligence = Gross negligence. Really extreme behavior. That there is no good reason to take such a risk.)
What are two (2) Accidental killings with malice (1) Depraved Heart Murder (2) Felony Murder. [NOTE: Both would be MURDER!!]
Three (3) kinds of Homicide Under the MPC
a) Murder (§210.2) b) Manslaughter (§210.3) c) Negligent Homicide (§210.4) d) Note that the common law is really the one to understand.
Murder under the MPC
i) Committed either purposely or knowingly, or recklessly with extreme indifference to human life ii) Does not separate into degrees iii) Murder in all its forms under the MPC would have to show recklessly, purposely or knowingly.
Manslaughter under the MPC
i) Committed recklessly OR ii) A homicide that would have been murder that is instead considered manslaughter because it was committed under the influence of extreme mental or emotional disturbance
Negligent Homicide under the MPC
i) Homicide Committed negligently (1) This is a MPC thing. This does not exist in the Common Law. (2) Slogans case: slogans irrelevant because all we need to care about is whether he should have know that it was bad driving
Difference between the MPC and common law for manslaughter
a) There is a way with degrees b) There are first and second degree felonies
Larceny, CL Elements of
i) Trespassory (ie no consent) (1) Taking ii) And carrying away of iii) The possession of personal property ( Personal Property has to be something you can physically take and carry away)--Of another iv) With the intent to permanently deprive (ie steal) V of possession of the property.
What are the 3 types of possession?
(a) Custody: physical control, but authority is limited by other person’s constructive possession (Professor who has computer temporarily in Professor Shestowsky’s example) (b) Constructive Possession: don’t have actual control of property, because it is in someone else’s custody, but have ownership of it (school in Professor Shestowsky’s example) (c) Actual (or “physical”) Possession: when D moves beyond his limited custody and takes full possession (Professor who takes computer home)
What is "breaking bulk"?
Breaking bulk: when a bailee (dry cleaner, jeweler, repairer, mechanic, etc.) given possession of something goes beyond his limited possession—i.e. a banker goes into the container he has possession of and thus commits a trespassory taking by removing the contents of the container (to which he only has custody)
What kinds of intent to steal does larceny have?
(a) Intent must be to permanently deprive victim of possession (i) By Trick (ii) Must make good effort search (iii) Must have actual intent to deprive, although there is another theory about continual stealing=continuing trespass (b) Even though in the following kinds of cases intended deprivation appears more temporary, we can still find intent to permanently deprive: (i) D intends to “sell back “ to owner (ii) D intends to claim” reward” for “finding “ property (iii) D intends to return it for “refund”.
Elements of Robbery
a) Larceny b) By force or intimidation
Elements of Embezzlement
(1) A fraudulent (2) Conversion (3) Of Property (4) Of another (5) By one who is already n lawful possession (not mere custody) of it [entrustment] (6) [(6) majority rule: entrustment requirement] Repeat: i) Fraudulent conversion of property of another by one who is already in lawful possession of it (not mere custody); conversion of lawful possession to unlawful possession --Taking can’t be trespassory (unlike larceny, where it must be)
Elements of False Pretenses
i) A representation ii) Of a material present or past fact iii) Which D knows to be false iv) And which s/he intends to do and v) Does cause V vi) To pass title (note: the right of ownership and possession of a property) vii) Of his/her property.
What is the key buzzword in False Pretenses?
a) Gives title. " A representation of a material present or past fact which D knows to be false and which he intends to and does cause V to pass title of his property "
Other property crimes that we don’t need to know:
a) Carjacking b) Arson
Difference between Larceny and Embezzlement.
i) Actual conversion has to occur during embezzlement ii) The original taking of the item must not be trespassory (1) Larceny is the opposite (2) Embezzlement, the original taking of the stuff is completely lawful/not trespassory. iii) Larceny can have unlawful possession from the get go
Difference between Larceny and False Pretenses
i) Larceny deals with the taking of a possession ii) False pretenses deals with the taking of a title iii) Another difference (1) FP entails making some kind of misrepresentation (2) General larceny does not, except for larceny by trick
Difference between Embezzlement and False Pretenses:
i) Embezzlement=not concerned with title ii) The difference for embezzlement is that you are not concerned with the taking of title. That is false pretenses
Useful Framework to determine which property crime it is
i) Did V intend to give title? (1) If yes, consider false pretenses ii) Did D take possession only? (1) If yes, consider larceny or embezzlement iii) Did D take property lawfully (e.g. by consent) (1) If yes, consider embezzlement (a) But if consent obtained by deceit, consider larceny by trick or false pretenses (2) If no, then consider larceny.
Terms: Actual Possession, Constructive possession, Custody [the 4 part chart]
i) Physical control: Yes, Authority: relatively unrestricted (1) Actual/Physical possession ii) Physical Control: No, Authority: relatively unrestricted (1) Constructive possession iii) Physical Control Yes, Authority: restricted (1) Custody (a) have physical control of X but substantially limited authority over X (limited by the person who has constructive possession iv) Physical Control: No, Authority: restricted (1) N/A.
Written Chart: Terms: Actual Possession, Constructive possession, Custody
The Law considers the following as clear examples of custody on average
(1) ONE: you get temporary or extremely limited opportunity sue the property--(i) Rex v. Chisser: Yee olde shopkeer price dispute, theft, felony A person with limited or temporary control over another’s property merely has custody of it. (2) TWO: you get something from the employer for use in the employment relationship (a) Professor’s UC computer (3) Another set of rules are pertained to Bailee: legal term for a person or concern having possession of property committed in trust form the owner (4) Ex: (a) Dry cleaners (b) Jewelers (c) Repairers of some kind.
What to write for hypo analysis on the exam a) Say the following:
i) According to old common law, this is how it would come out (1) Intent at the time of taking, etc ii) But, if the courts apply a continuing trespass doctrine, this is how it would come out (1) Apply it the other way. Come out differently and talk about what’s in Brown. (a) Under the continuing trespass doctrine, every moment you have that thing stolen, it is a trespass. I.e. he continued to “take” the bicycle in trespassory possession as long as he retained (ie. Later, when he changed his mind to keep it, there would be concurrence. )

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