1. Utilitarianism

and

2. Retribuitivism

UTILITARISM

This theory of punishment is

Jeremy Benham's Mischief theory.

1. Forward looking

2. seeks to eliminate mischief and promote happiness

    of community.

3. Punishment should only happen if doing so avoids a

    greater evil.

4. It is okay to punish the innocent, if mischief is

    avoided by doing so.

Justifications:

A) Deterrence     

B) Incapacitation

C) Reform          

This theory of punishment is

Immanuel Kant's approach to punishment.

1. Backward looking

2. Society has an obligation to punish the guilty, or else

    share in defendants guilt.

3. Innocent people should never be punished

4. An Eye for an eye.

Government has the obligation under the 14th amendment to prove:

1. beyond a reasonable doubt

2. every fact necessary to constitute the crime.

The punishment needs to fit the crime.

This is also a Constitutional restriction to punishment under 8th Amendment.

No crime without law.

No punishment without law.

This is said to be the first principle of American justice.

A statute is void for vagueness if it fails to provide:

1. Fair Notice, when a person of common intelligence

    must necessarily guess in the meaning of the statute

    and differ in its application, and

2. Sufficient guidelines for law enforcements

    (avoid having police and judges define laws on an ad

    hoc system).

The physical requirement/external feature of a crime.

DEFINED:

A voluntary action (or omission that breaches a legal duty) that causes a social harm.

S.C.A.C.S.

1. Statutes

2. Contract

3. Assumption of care and exclusion

4. Creates the risk

5. Status relationships

(parent/child, Husband/wife)

1. reflex/convulsion

2. Hypnotic behavior

3. Any movement during unconsciousness/sleep

4. Habitual actions/ticks.

COMMON LAW:

1. General intent - broad standard, "blameworthy state

    of mine" (does not differentiate between reckless

    and intentional/purpose)

2. Specific intent - Narrow version. A specific mental

    state is required.

*Reckless and intentional are separated here. the three specific intents in C.L. are:

1. Intentional (purpose/knowedge)

2. Recklessness

3. Negligence

1. Purpose

(to have an object purpose for the result)

2. Knowledge

(to have practical certainty that the harm will occur)

3. Reckless

(consciously disregards a

substantial and unjustifiable risk)

4. Negligence

(one should be aware of a substantial

and unjustified risk, but is not aware)

KNOWLEDGE OF ATTENDANT CIRCUMSTANCES

(WILLFUL BLINDNESS)

When knowledge of existence of a particular fact is required element of an offense, such knowledge is established if the person is aware of the high probability of is existence.

- unless he truly believes it does not exist.

No mens rea is required for a

strict liability offense.

These are disfavored generally by the court. To determine a strict liability:

1. assume it is not strict liability

2. look to congressional intent,

legislative history,

other parts of statute, to determine if

mens rea does exist.

TYPICAL STRICT LIABILITY CRIMES INVOLVE:

1. Public Welfare offenses

2. punished by fines, ø harsh consequences.

MOST KNOWN EXAMPLES ARE:

Statutory Rape

Bigamy

Mistake does not exculpate for strict liability offenses.

For other offenses Mistake is a defense if it negates the Mens Rea requirement (Mistake of other Law),

OR

The law requires knowledge of law for punishment, mistake of law is allowed.

(Statute requires you know of the statute

before you can violate it).

This can sometimes be exculpatory.

A man cannot steal what he believes he owns.

MENS REA:

general intent crime

(morally blameworthy is all that is needed)

ACTUS REUS:

sexual intercourse with force (threat to use force),

and no consent.

MISTAKE as to consent is a defense

Sexual intercourse with a female (not his wife) if:

A) he compels her to submit by force or threat of force,

    of imminent Death, GBI, extreme pain or kidnapping

    to be inflicted on anyone,

B) he has substantially impaired her power or ability

    control her conduct by employing, without her

    knowledge, drugs for the purpose of resisting her

    resistance (rufie-colata), OR

C) if the female is unconscious

Ignorance of law excuses no one!

1. reasonable reliance on official statement of law:

A) mistake of law allowed if ∆ reasonably relied on a statute

B) Rulings handed down by Jurisdictions highest court.

C) Official interpretation of public officer in charge of interpretation, administration, or enforcement of the law (D.A. or Governor, etc. but not police).

2. Negation of Mens Rea (different law mistake).

Actual cause is generally the proximate cause.

1. no cause - no liability

2. voluntary act must cause harm

3. Some link to the injury = actual cause

4. Proximate cause = criminal liability

Jury decides Proximate cause.

1. "But For" test (Sina qua non)

"But for, or in the absence of, defendants act the social harm would not have occurred when it did."

2. Substantial factors test

(where the "but for" test provides

an unjust result use Substantial Factors)

"Was ∆'s action a substantial factor of the harm?" Necessary/Sufficient test.

A defendant who accelerates or magnifies a social harm, is liable for the end result as much as the initial defendant is.

AGGRAVATION without acceleration is not sufficient - poking the bullet wound with a stick is mean, but illegal.

Policy Decision:

Factors to consider for determining Proximate Cause:

 A.V.O.I.D.S.

* how substantial a role did ∆'s act play?

(de minimis causes)

Unlawful killing of another with Malice Aforethought. 4 types of malice:

1. Intentional killing

2. Intent to commit a felony

3. GBI

4. Depraved Heart (extreme recklessness)

*Year and one day rule in Common Law.

1st Degree:

1. Intent with WPD

2. Felony Murder (BARRK)

2nd Degree:

1. Intent No WPD

2. Depraved Heart

3. Other Felony Murder

4. GBI

1. Purpose or knowledge

2. Extreme Recklessness

with disregard for human life

(will be assumed if committing

one of six felonies BARRK

+ Felonious Escape).

VOLUNTARY:

1. Heat of Passion

INVOLUNTARY:

1. Criminal Negligence

2. Misdemeanor manslaughter

VOLUNTARY:

1. Heat of Passion

INVOLUNTARY:

1. Criminal Negligence

2. Misdemeanor manslaughter

1. Reckless manslaughter

2. E.M.E.D.

HEAT OF PASSION:

Common law and Stat Mod use Heat of Passion to mitigate Murder to Manslaughter

COMMON LAW only allowed this for 4 provocations: DAAM

A) Discover spouse in affair

B) Assault and Battery

C) Adequate provocation

(Calculated to inflame the passion of a reasonable man, and tent to cause him to act, for a moment, from passion rather than reason. ø words alone)

D) Mutual Combat

STATE MOD: Objective standard (jury decide) but words are still not enough. H.O.P.

1. no cooling off period

2. causal connection

EXTREME MENTAL OR EMOTIONAL DISTRESS (MPC)

1. Can be built up over time,

2. Victim does not have to be

the source of the stress,

3. Reasonable excuse

(reasonableness based on

actors circumstances as he

believed them to be).

If death results from the commission, attempted commission, or fleeing of a felony,

it is considered to be murder.

There are limitations based on jurisdiction,

and types of felony.

1. Inherently Dangerous Felony

Felony Murder only applies where the predicate felony is inherently dangerous in its abstract form, not on the facts of the case (can this crime be committed safely).

2. INDEPENDENT FELONY LIMITATION: (majority) Predicate felony must be independent of the homicide, so any felony where homicide is likely cannot be used for FM rule.

COMMON LAW WAS:

3. FURTHERANCE OF A FELONY:

A) Killing must occur during the commission

or attempt of the felony

B) Must be in proximate time and location

- including the escape

C)Causation, the felonious conduct must

be cause of the death (heart-attack ø FM)

*Know between AGENCY and PROXIMATE CAUSE APPROACH TO FM rule

(for furtherance limitation)

FM LIMITATION (FURTHERANCE):

AGENCY v. PROXIMATE CAUSE APPROACH

AGENCY - Only liable for actions of co-felons

PROXIMATE APPROACH - (minority view)

Liability if act by felon is proximate cause of the homicide by non-felons as well

(police shoots someone - Felon is liable).

TRADITIONAL RULE:

Victim had burden of proof as to

presence of resistance to the rape.

Required to resist to utmost for entire

duration of rape.

MODERN RULE: Only reasonable

degree ofresistance necessary

(Just say no. Is not always enough).

If force/threat of force makes resistance

unreasonable, it is not necessary

FORCIBLE COMPULSION:

Not only physical force of violence, but also psychological and intellectual can also be used to compel a person to engage in sex.

Government has the burden of proving: either:

1. Victim resisted and Defendant overcame the resistance. OR

2. Victim was prevented from resisting

by use of threats to safety.

Deadly force is only allowed by the non-aggressor, and this person must reasonably believe such force is necessary to protect from imminent harm.

*Safe retreat is required if possible.

1. Defendant need not be correct,

if belief is reasonable.

2. Defendant must honestly belief

that Deadly Force was necessary.

3. Fact Finder must agree that actions

were reasonable.

*MAJORITY RULE -

If ∆ believes deadly force in necessary, but this belief is unreasonable - the defense in not available.

* MINORITY RULE -
Unreasonable belief that deadly force is necessary is an "imperfect defense" that will only mitigate charges to Manslaughter (V. MS). -

The use of force upon another is justifiable when:

1. the actor believes it is

IMMEDIATELY NECESSARY,

2. to protect himself,

3. against the use of unlawful force,

4. by the other person,

5. on the present occasion.

*Deadly Force ø allowed if actor knows

he can avoid necessity by either:

1. retreating

2. surrendering possession.

In Common Law: Safe Retreat was required

(if it could be safely done - unless at home or work)

MPC and Modern Rules: Not duty to retreat

(unless can be safely done to avoid deadly force)

SELF DEFENSE:

IMMINENT HARM

Subjective or Objective?

MINORITY RULE - the theory that women

(or now spouses) who are serially abused,

can use deadly force absent the element of

imminent threat of serious harm.

MODERN TREND: Total Circumstances from

abused victims point of view, and considering

abuser's characteristics and likelihood of

retaliation. *ULTIMATELY this is a Objective determination (jury decision)

Violation of law is JUSTIFIED if:

1. Such violation was necessary

to prevent a greater imminent

social harm from occurring, and

2. There was no lawful alternative.

AND

MAJORITY RULE:

1. ø homicide,

2. Must be created by natural forces,

3. Legislature ø prohibited

action in all circumstances,

4. Clean Hands Rule

(any dirt, too bad so sad),

5. and subjectively believes

the violation was necessary

at the time of the violation.

Choice of evils doctrine.

1. Violation of law must prevent

a significant evil

2. There must be no

adequate alternative

3. Harm caused cannot be

disproportionate to harm avoided.

4. Partial clean hands.

- does not qualify for

reckless/negligent crimes

- actor cannot have

knowing/purpose created

the situation -

where actor was

reckless/negligent they

can be punished for the

committed crime at the

level of mens rea they

possessed.

5. No Immanent harm requirement

6. No natural forces requirement

7. homicide is acceptable

EXCUSE DEFENSE (not justification)

1. must be immediate threat of

GBI (or death) to yourself

or your family,

2. Must have a well grounded

fear that threat will be carried out,

3. No opportunity for escape, and

4. many jurisdictions require

"Clean Hands" and/or prohibit

its use in homicide cases.

1. No requirement of immediacy

2. partial clean hands requirement

(same as in Necessity),

3. must be in response to an unlawful

threat of GBI or death to anyone,

4. Available for homicide

Defense is available specific intent crimes.

Complete defense IF it negates mens rea.

*ø available for defense against general intent crimes.

MODERN TREND IS TO:

1. abolish the defense, or

2. narrow its application.

1. M'Naghten

2. Irresistible Impulse

(M'Naughten + impulses)

3. MPC

Majority rule:

Actor, because of a disease of the mind:

1. could not know the nature and quality of his act, or

2. could not know that the act was (criminally) wrong.

INSANITY: IRRESISTIBLE IMPULSE

(VOLITIONAL)

This defense is the M'Nauten test:

1. could not know the nature or quality of his acts, OR

2. could not know that the act was criminally wrong.

PLUS:

3. behaved out of an irresistible impulse.

As result of mental disease or defect, lacked

substantial capacity to either:

1. appreciate the criminality

(wrongfulness) of conduct, or

2. Conform conduct to the law.

1. Attempt

2. Solicitation, or

3. Conspiracy

MENS REA:

1. Specific Intent Crime:

2. Must intend (purpose/knowledge)

to commit the target offense.

3. C.L. - with intent, takes any

substantial step towards act.

ACTUS REUS:

U.P.I.P.

1. Unequivocal (basically committed crime)

2. Probable Desistance (point of no return)

3. Indespensible Elements (Items ready), or

4. Physical Proxemity (getting into location)

*CL - punishes less than target offense

*Merges with completed crime

Conduct is proximate (near)to completed crime.

∆ must have have it within his power to

complete crime almost immediately.

ATTEMPT ACTUS REUS:

INDISPENSABLE ELEMENT:

∆ must have gained control of an indispensable

feature of the criminal plan.

(i.e. must have the murder weapon,

to be committed of attempted murder)

ATTEMPT ACTUS REUS:

PROBABLE DESISTANCE

Conduct takes normal person from

likely point of no return.

POINT OF NO RETURN.

- unlikely to voluntarily resist the

completion of the crime.

(i.e. attempted rape once you get her clothes off).

"I feel the same way baby!"

-glennans

ATTEMPT- ACTUS REUS:

UNEQUIVOCALITY

High standard:

Conduct unquestionably manifest intent

to commit target crime.

(A Threatens to kill B, approaches B (who is with police), and loads gun - not attempted murder because he could be suggesting for police to arrest B).

ATTEMPT: ACTUS REUS:

TEXAS RULE

ACTUS REUS:

To invite, request, command, hire, or encourage another to commit a crime.

MENS REA:

To intend that the other person commit

the target crime

AND intend the solicitation.

MERGER: Solicitation merges with conspiracy

(as soon as an agreement is made)

Actus Reus:

an agreement between 2 or more people

to commit a crime. There is no

substantial step required,

agreement is enough.

Mens Rea:

Intend (purpose or knowledge) to agree

and intend to accomplish the objects of conspiracy.

*Always a misdemeanor crime

*Does not merge with target crime

*Cannot have a conspiracy if there

is not intent in the crime.

(ø conspiracy for involuntary manslaughter

because the Mens Rea is negligence).

ACTUS REUS:

Agreement to commit a crime

(Overt act required for 3rd degree felonies).

MENS REA:

Purpose of promoting or facilitating

commission of a crime.

*punishment is same grade as target offense,

but less severe

(first degree felony = second degree conspiracy).

In COMMON LAW conspirators are liable for all reasonably foreseeable crimes of all

co-conspirators that are done in

furtherance of the conspiracy.

A supplier must know about criminal use of supplies AND intend to further that use.

Intent is present with direct evidence of furtherance (advising buyers on how to perform illegal activities)

Or it can be inferred from knowledge with

supplier has a stake in the venture, or special interest

(charges excessively high prices, transacts high volume of sales, or there is no legitimate use of the goods/services)

or if supplier knows that supplies are used

for serious crimes.

Circumstantial evidence can be used to infer an agreement to commit a crime.

*Azim - driving car while friends jumped out, beat a man, robbed him, and then they all drove off. CONSPIRACY.

*Cook - Held his brothers belt and cheered him on as he raped the victim after she fell on the ground.

NOT CONSPIRACY - probably ACCOMPLICE.

*Reyes - pilot and four illegal immigrants dump four bales of marijuana from an airplane.

Pilot CONSPIRACY,

- none of the illegal immigrants on conspiracy

- could not prove they participated in activity,

or agreed to it.

BILATERAL CONSPIRACY (Majority Rule)

requires that multiple parties both/all legitimately agree to commit the crime

(under-cover officer cannot "play along"

as another party makes an agreement that

only exists in his own mind).

UNILATERAL CONSPIRACY -(Minority Rule)

where one party has honestly agreed to commit a crime, even if the other party has no honest

intention to commit the crime, and perhaps informs

the police of the other's agreement, there is a conspiracy of one.

accomplice liability is not a separate crime,

it is a theory that creates an "agency"

between all participants of a crime.

This theory holds each accomplice in

equal "principal" liability.

ACCESSORY is NOT an accomplice.

This is a separate and lesser crime than the principal crime.

Accessory-after-the-facts aid the liable party of the principal act after the principal crime (or attempt) is complete and they seek refuge from the law.

*An accessory (like sunglasses or a scarf) is not

part of the principal (wardrobe) but rather

just a separate item that compliments it.

The vast majority of the time an accomplice and a conspirator are one in the same, but one is an:

ACCOMPLICE ONLY

if he aids the principal spontaneously, having never agreed to the crime prior,

and one is a CONSPIRATOR ONLY

if he is a party to the planning and agreement,

but does not (or cannot) participate in any

of the actus reus of the actual crime.

FELONY MURDER - very narrow, only applies to a select number of homicide cases.

NATURAL AND PROBABLE CONSEQUENCES - less narrow than FM, but not as broad as Pinkerton, This holds all accomplices liable for the principal actor's additional crimes IF such crimes are closely linked to the target crime.

PINKERTON - Very broad, conspirators are liable for all reasonably foreseeable crimes of all other co-conspirators IF such was done in

furtherance of the conspiracy.

Mens Rea:

intend to aid the principal AND

Intend that the principal commit the crime.

Actus Reus:

Being present at the scene of the crime is not enough, but any act of encouragement or assistance will qualify.

(Supportive words, a wink, opening the door, etc.).

CAUSATION:

Accomplice need not be a "but for" cause of

the crime, only that he assisted in some manner.

Actus Reus:

trespassory taking AND carrying away

(of the property of another)

- slightest movement qualifies as "carrying away."

MENS REA:

Intent to deprive possessor of the property permanently.

Robbery is Larceny plus any amount of force.

Showing a gun, pushing the owner, etc.

Larceny requires a trespassory taking of the property of another.

1. If one has lawful possession of property, they cannot take it. Towing company may legally possess

your car until your fees are paid

- this is not larceny.

2. Bailee has legal custody of property, cannot

commit larceny by just taking it.

Custody is a temporary and limited possession of property. When a customer hold merchandise in a store, or when an employee is permitted to use property for the purposes of employment.

If one has only custody, then he can commit larceny by carrying away of the property with an intent to permanently deprive owner of it.

Where the owner of property never obtains physical possession of property, therefore there cannot be a trespassory taking of this property.

Thus Embezzlement is:

Acus Reus:

To obtain possession of the personal property

of another in a lawful manner

(usually through a trust relationship),

and then fraudulently converts the

property to his own use.

Mens Rea:

∆ intends to deprive another of their

property permanently.

A Bailee has legal possession of the bale

(bundle or package, but not the contents within)

by "breaking the bulk" the Bailee has

converted the possession of another.

LARCENY:

1. traditional Trepsassory taking of property

- regular larceny,

OR

2. Taking property in your temporary custody

while intending to permanently deprive owner of it

(at the time of taking) this is larceny by trick,

3. "Breaking the Bulk" as a bailee

EMBEZZLEMENT:

1. receiving legal possession of another's

property from a third person

(before owner has physical possession of it)

and converting it to your own use,

2. selling an entire bale (if a bailee) to a person who is not the owner, or the owner's intended recipient.

WHAT MAKES A TRESPASSORY TAKING DIFFERENT

FROM LEGAL POSSESSION OF PROPERTY?

Consent.

One who is given consent to possess property

(a bailee or trusted employee) "takes" and

"carries away" the property by breaching the

scope of the initial consent.

Consent obtained by fraud is not valid consent,

so it is a trespassory taking.

Consent is key to larceny.

If one consents to a larceny

(aside from consent produced by fraud or force)

there can be no crime.

THUS: One who leaves a safe open,

knowing that ∆ intends to steal the contents

has not consented to larceny, BUT one

who arranges for a friend to open the safe

and hand the contents to ∆ has consented and

there is no crime.

This is a special case of theft.

Actus Reus:

False representation, and Owner of property relies at least in part on the false representation and is thus defrauded.

(possession AND title are transferred to ∆)

MENS REA:

Intent to defraud owner of property

*This is buying property with counterfeit money

or accepting gifts knowing that such is given

based on a fraudulent belief

(They wrongly believe you are sick,

or that you had a baby).

This is can be tricky.(no pun intended)

To gain property legally (renting it for example)

while initially intending to sell it to another

- is larceny by trick.

BUT, obtaining custody of property legally

(by renting it) and intending to return it at the

time, but later deciding to sell it to another

- Is EMBEZZLEMENT because it is the wrongful conversion of property that was legally in your possession.

Receiving a "free car" as a prize

(that was intended to be delivered to your

neighbor - who you represented

yourself to be in order to get the car)

is THEFT BY FALSE PRETENSES.

Keeping lost property is larceny when:

1. ∆ has reasonable grounds to believe

that the true owner can be found, and

2. he had a wrongful intent (to permanently

deprive the owner) when he picked it up.

A legal fiction that states a person who has

possession of the property of another is

committing a new trespass ever moment

that he continues to possess the property.

This allows for one to commit larceny by

finding someone's lost or mislaid property,

and though initially intending to find the owner,

later deciding to permanently deprive the

owner of it.

IS A SOLICITOR AN ACCOMPLICE, AN ACCESSORY,

OR ONLY GUILTY OF SOLICITATION?

Where a man and woman (not married) have sexual intercourse and the woman has not consented to the sex there is rape. Lack of consent can be evidence of force, or threat of force, or if the victim is unconsious she will be unable to consent.

AR: Sex with non-spouse and ø consent. This implies force (as does unconsious victim).

MR: General blameworthy state of mind.

REVOKING A CONSPIRACY

"ABANDONMENT"

In Common Law

A conspirator may use "abandonment" as a partial defense to the crime of conspiracy.

He cannot be excused of liability pertaining to any portions of the crime committed prior to the abandonment, but by providing appropriate evidence that he communicated an abandonment of the conpiracy (to all co-conspirators) then he will not be liable for any subsequent crimes performed by the co-conspirators, and the statute of limitations begins running for him.

AT MPC:

Abandonment is an affirmative defense, but he must renounce his criminal purpose, AND thwart the success of the conpiracy under the circumstances.

A defendent cannot be charged with conspiracy to commit a crime that requires two or more willing parties.

Such as adultry, bigomy, duelling, etc. This is becasue the result would be an obvious situation of double jeopardy.

IMPOSSIBILITY OF THE CONSPIRACY

(AS A DEFENSE)

Majority view is that conspirators are still liable of a conspiracy, even if the crime planned is impossible.

Planning to rape a woman who does not exist, or to perform an illegal abortion on a woman who is not pregnant.

INTOXICATION DEFENSE: WHAT DID IT USED

TO BE, AND WHAT IS IT NOW?

In Common Law

Intoxication was a defense to establish a defendent was unable to possess the required Mens Rea for a crime.

As the law developed Intoxication as a defense was said to to qualify for General Intent crimes, because voluntarily bringing one's own self to a state of intoxication was said to be morally blameworthy.

MODERN TREND:

In recent years Intoxication has been allowed to be used in defense of specific intent crimes, to challenge the defendant's level of Mens Rea; however the use has been restricted and limited mightily.

KNOW:

In most states, Intoxication and homicide can only be used to mitigate the offense from 1st degree to 2nd degree.

If the ∆ was guilty in creating the circumstances surrounding the necessity or duress situation, the defense will not be available to any charges of equal or lower Mens Rea requirements.

Thus if ∆ was Reckless, and the charged creim requires recless Mens Rea, then ø defense.

BUT if ∆ behaved recklessly, and the charged crime requires knowledge Mens Rea, then the defense is available.

In crimnial law many crimes only require two elements to be met for guilt (Actus Reus and Mens Rea); however there are other laws that require a third element be present at the time of the offense. This third element is called "Attendant Circumstances."

In short this can be best understood by its definition in Black's Dictionary as a required element of some crimes that the "facts surrounding an event" be present.

So if a law requires that it is a felony to drive while intoxicated, the required elements would be:

(1) ø = Mens Rea,

(2) Driving = Actus Reus, and

(3) While intoxicated = attendant circumstance.

No conviction unless both required elements are present at the time of the offense.

Federal Jurisdiction requires a Bilateral Conspiracy agreement AND a substantial step towards the completion of the crime.

Mens Rea in Federal is that ∆ meets the required MR of the target crime. (cannot, for example, bribe a government employee if you do not know they are a government employee - unless the statute did not require that MR).