Office Hours on Criminal Law
Author:
Kennedy, Joseph
Edition:
1st
Copyright Date:
2020
9 videos
have results for criminal law
Mistake of Law 9 results (showing 5 best matches)
- All right, let's start with an example of a statute where the legislature has decided they want mistake of law to be a defense, criminal copyright infringement. These are the elements of criminal copyright infringement. You'll notice use of the term willfully, the defendant must act a willfully. The supreme court has decided that the term willful when used in a complex regulatory statute, requires the prosecutor to prove the violation of a known legal duty. So when legislatures use the term willful in criminal statutes, in complex regulatory areas, courts often presume that that requires the defendant to know about the law that they're violating. So since knowing about the law that's being violated is a part of the mental state the crime requires, ignorance of that law would be a defense in those circumstances. But you must see a term like willful or other statutory language spelling out clearly that the defendant must know about the law in order to be guilty of breaking it.
- Let's set two goals for ourself in this area. First, we want to make sure that we can distinguish mistakes of fact from mistakes of law. And then, of course, we want to understand when a mistake of law can be a defense to a crime.
- All right. Now that we've got that straight, let's look at the three different times when a mistake of law can be a defense. The general principle, of course, is that ignorance of the law does not excuse, except when it does. First, some statutes specifically require the prosecutor to prove that the defendant knew about the law that they were violating. Second, sometimes jurisdictions have a reasonable reliance defense provided by statute. And third, sometimes the statute defining the offense requires knowledge of illegal circumstance.
- Look, mistakes about the law are common but they only very, very, very rarely provide a defendant with a defense. We're all presumed to know the law in all its complexity.
- All right. Next, you have an example of a reliance defense provided by statute in some jurisdictions. If you take a look at this example, you'll see that some official statement of the law that you relied on could provide you with the defense. What sort of official statements of law are we talking about? An official opinion issued by the attorney general of the state usually suffices. A court opinion, right, issued by an intermediate appellate court that you reasonably relied on, that could also provide you with a defense. What would not provide you the defense was an informal opinion by a police officer on the street. It has to be an official statement of law to satisfy these sorts of statutes.
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Distinguishing Mental States 4 results
- Distinguishing one mental state from another is another key to succeeding in your study of criminal law. First, keep in mind, there are two different approaches to mental states, the Model Penal Codes and the common law's approach. The Model Penal Code defines four mental states, purpose, knowledge, recklessness, and criminal negligence. The common law adds the concepts of specific and general intent and strict liability. We're going to focus first on learning to distinguish a purposeful from a knowing mental state, a knowing from a reckless mental state, and a reckless from a criminally negligent mental state. We have one hypothetical that will take us through all of these mental states. "The Mad 1L Bomber." Imagine someone in their first year of law school has just lost it. And they decided to put a bomb in the office of their most hated law school professor, but they bring the bomb to the office during office hours to which they see sitting next to their most hated law school...
- ...'s license and the date of birth matches, but you're even more careful, you asked to see their passport because you know sometimes people have fake IDs. You look at their passport, the passport date of birth says that they're of the age of consent. But unfortunately, there's a typo in the passport. Are you guilty of statutory rape? Yes, you are. You might think, "But wait a minute. There's no reasonable way I could have known this person was not of the age of consent." Well, that would be an offense if even simple negligence was required for that element. But statutory rape is, in a majority of the jurisdictions, a strict liability offense. That means being reasonable with respect to this element is no defense because no mental state at all is required. That is what strict liability means. A famous judge, Oliver Wendell Holmes once said, "Even a dog knows the difference between being tripped over and kicked." This underlines the point that mental states matter in the criminal...
- So, think about the difference between recklessness and negligence as turning on the absence or the presence of the consciousness of the risk. Someone is reckless if they're conscious that some bad thing might happen, but they just disregard it. Someone is criminally negligent if the risk never even occurs to them. Now, let's talk about the common law's concept of intent. You'll notice Model Penal Code doesn't use the word "intent." Because they considered it too vague, too ambiguous, to have too many different meanings. But the common law relies heavily on it. Two different types of intent, general intent and specific intent. A general intent means that you're generally aware of your conduct and it's the mental state required for less serious crimes such as battery. Specific intent requires some further intent. It requires that you must intend some further result and is generally reserved for more serious crimes. Now, a specific intent is generally satisfied by a purposeful or a...
- ...re taking a selfie of themselves. He thinks for a moment, "Is there enough explosive there to blow through the wall and hurt them?" He thinks, "Nah." He pushes the detonator button, but the bomb blast blows through the wall and kills the entire study group. He is reckless with respect to their death. Was he substantially certain that they would die? No, he didn't think it would happen. If he was substantially certain, he'd be knowing with respect to their deaths. No, but he consciously disregarded a substantial risk that they might die in the blast. It's that "nah" moment. He consciously disregards it, he thinks, "Could this happen?" Then he goes, "Nah." That is recklessness. Now, there's yet another study group that dies in the blast. They're sitting outside the window of the law professor's office in a courtyard down below. It never even occurred to our "Mad 1L Bomber" that anyone in the courtyard might be injured. He's not reckless with respect to their deaths because it never...
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- The key points to remember overall is that strict liability is something the criminal law really doesn't like. Leave for torts. It's only in the special circumstances where a court finds an offense to be a public welfare offense where the court won't read in mental state at all.
- Now, let's go on to the more complicated analysis that you have to engage in when dealing in a common law jurisdiction with a statute that contains no mental state language. The first question you ask is, is this offense an old common law offense? Does the statutory language describe something that was a crime at common law? For example, what if a modern statute describes what is essentially theft? Well, if it is an old common law offense, courts will presume that the legislature intended judges to read in the mental state that was required at common law, even if no mental state language appears. So, if our new-fangled statute describes a theft offense, a court would read in the requirement of a specific intent to deprive the property of another, which was the mental state required of the theft offenses at common law.
- If it is not an old common law offense, then you have to ask yourself, is this a public welfare offense? We'll return to the idea of the public welfare offense in a moment. If it's neither an old common law crime nor a public welfare offense, then you should still read in a mental state. It'll probably be a knowing or a reckless mental state, and you'll be on your own pretty much in figuring out which mental state to read in. You can look at legislative purpose, but that'll only take you so far. Generally speaking, a knowing or reckless mental state will be read in by courts under these circumstances.
- All right. Let's take a look at our three statutes once again. Whoever damages or destroys the property of another, hey, that's an old common law crime of malicious mischief or vandalism. So, the court will read in the mental state required at common law. Speeding, I've already given that. Speeding offenses are strict liability offenses because they're considered public welfare offenses. Anyone who unlawfully possesses ricin, ricin is a highly dangerous poison that raises a grave danger to the public. I mean, a teaspoon of ricin, if it was in put into an air conditioning system, could kill hundreds of people. But this offense is a felony carrying years of imprisonment. Well, this would a toss up. A court would be hard-pressed to decide whether this was or wasn't a public welfare offense, because some factors point one way and some factors point the other.
- All right. So, first, let's divide the world up into the Model Penal Code jurisdictions and common law jurisdictions. The answer in a Model Penal Code jurisdiction is easy. Rule 2.02 (3) A tells us that you always read in a reckless mental state with respect to all material elements if no mental state language at all appears in the face of the statute. That's because the Model Penal Code hated the idea of strict liability offenses. So, we're done with Model Penal Code.
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Criminal Law in One Sentence 4 results
- Breaking a crime into its elements is the key to doing well with criminal law. You see there's something missing from all those crime shows you've been watching all these years. In those shows, they skip the boring part of the trial. The boring part of the trial is when the judge instructs the jury on the definition of the crimes and the defenses that are at issue.
- Now this is what you'll be studying in your first-year criminal law class. The key to understanding the definition of a crime is to break it into elements. Fortunately, you can understand the elements of any crime by using one simple sentence, it all fits. The guilty hand moved by the guilty mind under the required circumstances sometimes causing a bad result in the absence of a justification or excuse.
- At the end of your criminal law course, you'll study various justifications and excuses. A paradigm example of a justification is self-defense. A paradigm example of an excuse is insanity. All right, let's break one crime down in terms of its elements. Many jurisdictions define burglary in the following way, breaking and entering a dwelling at night with the intent to commit a felony or larceny therein. The breaking and the entering are conduct elements, at night is an attendant circumstance, and with the intent to commit a felony or larceny therein, that is one of the mental states required for this offense to occur.
- The same goes for if you open the door to walk into the apartment but you're just looking to see if the person who lives there is present. Once inside, however, you then decide to steal something. Once again, you would not be guilty of the crime of burglary because once again, three out of four, doesn't cut it. You entered, you broke when you opened the door but you didn't form that larcenous intent until you were inside the apartment. So the concurrence requirement is missing. Three out of four doesn't cut it. So remember, criminal law really is elementary in the sense that the key to understanding it is breaking a crime into its elements.
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The Voluntary Act Requirement 5 results
- Also, a voluntary act includes what we might call habitual responses. Imagine a chain smoker, someone who pulls that cigarette out and lights it up without even realizing what they're doing, is that a willed muscular emotion? Criminal law says, yes. It holds us responsible for those actions we perform that are so ingrained, so habitual that we're not fully conscious when we do them. But that is still us willing our fingers to take that cigarette out, so that would be considered a voluntary act.
- Michael Phelps, we'll put him on the beach too. He jumps out of his chair, he throws out those long arms of his and he says, "Hey, I've got this." And he starts loping into the water. And then he stops and he says, "Oh man, that water is so much colder than all those swimming pools," and he backs out. Well, now he also might be liable for criminal prosecution because he assumed a duty to rescue and then abandoned it. And the idea behind this legal duty is that his assumption of the duty to rescue might've discouraged others from coming to your aid.
- Now let's talk about the exception to the rule, when can you be found criminally liable for an omission, for something that you fail to do? The basic principle is easy to state and easy to remember. You can only be criminally prosecuted for a failure to act in the face of a legal duty. Not a moral duty, but a legal duty. And let's illustrate this principle with the example of your bad day at the beach. You're at the beach and it's a bad day because you're drowning. And it's a crowded beach, there's all sorts of people on the shore watching you drown, can any of them be criminally prosecuted for your death? Well, no. Not unless one of them has a legal duty. Arguably, all of them have a moral duty to come to your aid, but the only ones who might be liable for criminal prosecution are ones who have a legal duty to come to your aid.
- All right, let's take the second piece. What is a voluntary act? There's a simple definition you can use. The law considers an act to be voluntary when it is a willed muscular motion, a willed muscular motion. And that does include speech, of course, because you need to move the muscles in your throat and your mouth in order to speak.
- Well, what's her legal liability for her failure to act, is this a reckless or negligent crime? Or is this an intentional killing? The answer, which might not be intuitive, is this is murder because we look at her mental state, not at the moment she pushes you into the water. That was maybe reckless or negligent. We look at her mental state at the moment she fails to act. And as you're yelling, "I can't swim," and you're drowning at that moment she knows you'll die if she doesn't come to your aid. And knowingly killing someone, that's murder. The basic principle to remember in this area is that we don't prosecute people for thought crimes. In the absence of a legal duty creating omission liability, the law requires a voluntary act.
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MPC Defensive Force 1 result
- So, remember, the Model Penal Code's general focus is always on blameworthiness. And we see this in how they define the justifications for use of defensive force. If you have an actual fear, you're not gonna be guilty of murder, but if it's an unreasonable fear, well, then your criminal liability will turn on just how unreasonable that fear, whether it was reckless or simply criminally negligent. In assessing reasonableness itself, they will assess it from your point of view, but it must be reasonable from your point of view.
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- All right. Let's return to our example of coming to class unprepared, but now ask, "What would happen in a common law jurisdiction?" Well, here's the bad news. Most common law jurisdictions don't have the sort of clear default rule that Model Penal Code jurisdictions have. So, you'd have to figure out what the legislative intent or the legislative purpose was in drafting the statute, and there's a whole list of factors you'd have to go through: word order, grammar, punctuation, graphical considerations, such as the ones we just discussed, statutory scheme, and the evidence of the legislator's specific intent at passing the statute, evidence about the general legislative purpose of the statute, and general policy considerations. This one would be sort of up for grabs because common law jurisdictions generally don't have the sort of clear default rules that the Model Penal Code contains.
- Figuring out which elements a mental state in a statute modifies can be one of the trickier questions lawyers confront. Let's use an example that hits close to home. Let's assume that, in your jurisdiction, it's a crime to come to a law school class unprepared to be called on. Welcome to hell. Specifically, the statute states that it is a misdemeanor to knowingly come to class unprepared when you are on call.
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- Distinguishing reckless murder from involuntary manslaughter. If you struggle a bit with drawing a line between murder and manslaughter with respect to unintentional killings, you have plenty of company, so does the law. So, reckless murder goes by many names. The common law had all sorts of colorful phrases it used to describe the mental state that was required when an unintentional killing would result in not manslaughter liability, but murder liability. You killed with a depraved heart or an abandoned and malignant heart, or you were reckless under circumstances involving a base in anti-social purpose or in the more analytical language of the model penal code, your recklessness manifested an extreme indifference to human life.
- Now, that would be a paradigm example of a depraved-heart murder. That was what the common law was trying to get at. Somebody who was so reckless, so indifference to human life, so depraved that, yes, if you get laughs from shooting at someone's foot and terrorizing them and exposing them to this great risk of serious physical injury or death just for your amusement, well, then, yeah, you have an abandoned and malignant heart. Your purpose was based in anti-social. Now, we don't care if you didn't intentionally kill a person, we think you're so depraved it's the functional equivalent of the same. So, that's what the common law was trying to get at by creating this category of murder for certain unintentional killings.
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Impossible Attempts 4 results
- ...? All right. Model Penal Code cases have recognized something called pure legal impossibility. Pure legal impossibility means you can't be guilty of attempting of an imaginary crime. Let's assume, for the sake of argument, that you think that it is actually a crime to come to class unprepared. Well, you come to class one day unprepared. Are you guilty of the crime of attempted coming to class unprepared? No, you're not. Because there is no such crime. That is what the penal code cases mean by pure legal impossibility. You can't be guilty of a crime that doesn't exist. So, once again, the bottom line is you take the world as the defendant imagines it to be, but not the law defining the offense. You thought the corpse was alive, so you're guilty of attempted murder. You thought the pocket to be picked was full, not empty, so you're guilty of attempted larceny. You thought the ring was stolen, so you're guilty of attempted receipt of stolen property. But you can't imagine that...
- Can you be guilty of attempting an impossible crime? This is something that students and the law have struggled with. Examples, is it a crime to shoot a corpse if you think the person is still alive, to buy a ring that you think is stolen, but it's actually not, or to pick an empty pocket. All right. The old way of thinking was this. If you shot a corpse but you thought it was alive, then you were guilty of attempted murder because that was a case of factual impossibility. You would have been guilty of murder, except the fact of the corpse being a corpse made the murder impossible because you couldn't cause a death when the person was already dead. So, that would not be a defense and you would be guilty of attempted murder.
- But though, common law treated buying a ring that you only thought was stolen differently. They consider that to be not factual impossibility, but legal impossibility. And so, that would be a defense to a charge of attempted possession of stolen property. And you would not be guilty of that attempted crime under the old way of thinking. But what about picking an empty pocket? Well, many courts went different ways on those sort of scenarios. Some sort of saw that as a matter of being factually impossible because there's nothing there in the pocket. Well, that's like shooting the corpse so you would be guilty of an attempt. Other courts thought, "No that's legal impossibility. There's no such crime as picking an attempted pocket. That's legally impossible." And they would consider that to be a defense to a charge of attempted larceny.
- ...Code has crystallized what's sort of emerging as the modern approach. Under the modern approach, you simply take the world, but not the law as the defendant imagines it to be. The Model Penal Code essentially treats almost all types of impossibility as factual impossibility. So, shooting a corpse you think is alive? That's not a defense. That's factually impossible. Buying a ring you think is stolen? The Model Penal Code and this modern approach also considered that to be a case of factual impossibility. So, yes, you would be guilty of attempted receipt of stolen property. Picking an empty pocket? Once again, that's also factually impossible. So, the Model Penal Code sort of reject this notion of some facts are sort of legal and some facts are factual and they said it's all factual impossibility. So, you basically take the world as the defendant imagines it to be. And if the facts were such that he would be guilty of a crime by what he did, then he was guilty of attempting...
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- Publication Date: July 30th, 2020
- ISBN: N/A
- Subject: Criminal Law
- Series: Office Hours
- Type: Video
- Description: Gain the advantages of office hours with professors on your own schedule! The West Academic Office Hours series is a collection of short audio and video tracks that tackle some of the thorniest questions plaguing law students. The professors answer students’ most frequently asked office hour questions. With clear and easy-to-understand explanations, these professors will help you reach that “lightbulb” moment of comprehension, just as they have with their own students in their own offices. You now have virtual faculty explanations available at the click of a button! The Office Hours series features a variety of notable law faculty explaining these tough topics in new and thoughtful ways.
