Sum and Substance Audio on Criminal Law
Author:
Dressler, Joshua
Edition:
8th
Copyright Date:
2021
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50 tracks
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Introduction 4 results
- Hi. My name is Joshua Dressler. I hold the Distinguished University Professor of Emeritus and Professor of Law Emeritus titles at the Michael E. Moritz College of Law at the Ohio State University. And I'm gonna serve as sort of your tour guide of the subject of criminal law. I hope and, in fact, I trust that you will find these lectures a useful supplement to your casebook and to your class.
- And I've been a visiting professor at UCLA, Berkeley, UC Davis, Michigan, Fordham, University of Texas, Arizona State, and UNLV, and also outside the country for a little while at the University of British Columbia and the University of Auckland in New Zealand.
- First, let me very briefly tell you a little bit about me. I've been teaching criminal law and criminal procedure for more than 40 years. Yeah, longer than most of you have been alive. And I've taught a lot of law schools over the years, Hamline University in Saint Paul, Minnesota, Wayne State University in Detroit, the George College of Law at the University of Pacific in Sacramento, California, and now for the past 20 years and more at the Ohio State University.
- And I've done a fair amount of writing besides law review articles. I have a treatise entitled "Understanding Criminal Law." I have a criminal law casebook and a criminal procedure casebook. And I have a criminal law outline. That's one published by West as part of the Black Letter series. And I have another audio of this sort as well in the criminal procedure area. Okay, that's enough about me, in fact, more than enough about me.
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Causation 28 results (showing 5 best matches)
- But remember, there was a different intervening cause and that is a coincidental one. For example, I batter the victim, not badly, but enough that as a result of the battery, the victim gets into her car and drives to the doctor for some minor medical care. And while driving to the hospital, a bolt of lightning strikes, exactly at the spot the victim's car is, killing the victim. Now, notice, I, Dressler, I'm the one who battered the victim, I am a but-for cause of the victim's death. But for hitting the victim, the victim wouldn't have been going to the doctor, and therefore, wouldn't have been in the car, and therefore, wouldn't have been struck by lightning bolt.
- You can think of proximate causation a little like a police lineup, and in the lineup, you have all of the actual but-for causes of the social harm, all of the actual causes. And proximate cause is the point when you pick out the particular person or particular force and say that he or she or it is the proximate cause, the legal cause of the result. And as I said, this is ultimately a policy decision. In short, we use proximate cause to reach what we hope will be a just and fair causal determination. So, because of that, there are very few bright-line rules for determining proximate cause. Again, did you hear what I just said? There are very, very, very few bright-line rules. It's really a judgment of what is fair and just and sensible. Is it just to hold this particular person, the defendant, causally accountable for the harm that has occurred?
- One of the factors to consider is the so-called intended consequences factor. It is sometimes said that a jury will look backwards from the result, let's say the death, and continue looking backwards in time and continue looking backwards until it finds an intention to cause that harm. And at that point, the jury will stop looking any further back and will hold that person responsible. For example, suppose Alice wants to kill Bob, gets a gun, loads it, plans to kill Bob, but puts the gun down on a table for just a moment. And while the loaded gun is lying there on the table, Alice's small child, too young to know better, picks up the gun thinking it's a toy, and accidentally shoots and kills Bob. Now, Alice is going to be held causally responsible for the cause of the death of Bob? Question.
- Now it's time to talk about causation. More specifically, elements four and five, when dealing with a crime. The causation requirement in the criminal law serves as a link between the defendant's conduct, that is the voluntary act, or maybe omission, and the social harm that resulted. It's the link, if you will, between, for example, the defendant pulling the trigger of the gun and the death that ensued. To be guilty of the criminal homicide, there must be some conduct on the part of the defendant, such as pulling the trigger, and there has to be a bad result, the death, the social harm, but there has to be a causal link between that voluntary act and the social harm. And that causal link is in fact broken down into two causation requirements.
- Now, in thinking about proximate causation, I recommend that when you analyze it, that you even take some scratch paper out and draw a line, a straight line between...a line maybe 2 or 3 inches long, and at the left end of that line, put the words defendant's voluntary act, and at the end of the line, on the right, in other words, you put the word social harm, or if you want, Jones's death. In other words, when you analyze a proximate causation issue, start from the moment of the defendant's voluntary act, whatever you decide it was, and you end with a result, the death. And what you're trying to do is see if any other event of causal relevance occurred between those two events, between the defendant's voluntary conduct and the harm. If nothing occurred in between, that is if there is no but-for causal event that occurred between, for example, the pulling of the trigger of a gun and the death, then we don't have any so-called intervening causes, intervening meaning something that...
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Property Offenses: Larceny 22 results (showing 5 best matches)
- Hypothetical three. This is a very interesting case. Listen, let's assume that Carl works at the Dressler state bank and Carl is a bank teller and in his job, he has furnished cash from the bank. He puts the cash in the cash drawer at the start of every day to make change for any customer. All right, let's say that Carl pockets some of that cash during work and then leaves with it at the end of the day. Is that a trespassory taking? You bet, because remember, Carl is working for the bank. That money belonged to the employer, the bank, so Carl only was given custody of that money when he put it in the cash drawer. So when Carl leaves with the money at the end of the day, he has converted that custody into possession and of course that was a wrongful taking a possession. So that's larceny. Okay, let's move on.
- Now, suppose I come into court and later say, "Well, Your Honor, I can't be guilty of larceny. That wasn't a trespassory taking of possession because the jeweler consensually handed me that ring." Well, that is true. He did. The jeweler did hand it over into what appears to be a perfectly consensual way. And I did say to you that the word trespassory means wrongful or nonconsensual. And again, the jeweler handed me that ring consensually. Well, common law obviously wasn't going to allow that argument to fly. So early judges created a legal fiction. They said, in that case, what Dressler had when he held on to that ring in that jewelry store was that he had custody of the ring but possession of the ring, more accurately, constructive possession of the ring remained with the merchant.
- All right. We're now going to turn to one more set of crimes. We're going to talk about them in some detail. And that's the crime of larceny and the related offenses of embezzlement and false pretenses. I have to warn you, common law larceny is an intricate crime. There are a lot of legal fictions and hairsplitting distinctions that developed primarily for historical reasons. Let's start with larceny. Common law definition, it is the trespassory taking and carrying away of the personal property of another with the intent to steal. I'll repeat. The trespassory taking and carrying away of the personal property of another with the intent to steal. And I'm going to go through each of these elements, trespass, taking, carrying away personal property of another and with intent to steal. Let's start with trespass.
- But what if John cuts down Jane's tree, leaves the timber there on her property, and then comes back maybe the next day with a truck to lug it away? Well, now that it becomes larceny because once the tree was severed from the land and left there to sit on Jane's land and he left, it now becomes her personal property. Therefore, when John returns the next day and carries it away, that would be a trespassory taking and carrying away of the personal property. They have Jane. But also notice that larceny involves the taking and carrying away of the personal property of another, a person is not guilty of larceny of his own property. But the key point to remember here is, again, larceny focuses on possessory rights and not title.
- In this context, in the larceny context, trespass simply means nonconsensual or wrongful. We'll come back to that in just a moment. But what larceny prohibits the actus reus, the social harm of this offense is the trespassory taking and carrying away of the personal property of another. So what do we mean by a trespassory taking? The first point to understand and so important is that larceny protects possessory rights of an individual, not ownership rights. It protects possessory rights. So if I leased my car to you for a year and then I come and take that car away from you before the end of the year without your permission, during the period of time you had a right to possess it. I, the owner of that car, am actually guilty of a trespassory taking and potentially guilty of larceny because I have taken possession of that car wrongfully. You have lawful possession of it. I took it when you had a right to retain it.
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Conclusion 3 results
- So, contact me, to tell me that you liked something, or you didn't. My email address at Ohio State is simply dressler.11@osu.edu.
- And so with that, I wish you the very best on your exams. And I wish you the very best in your careers. And I wish you the very best in your life. Be healthy. Be safe. Keep in mind, that what's most important in life, it isn't your criminal law class. It's family, it's love, it's doing good in life. Goodbye. And thank you.
- Okay. We're done. I hope that you've enjoyed, or are enjoying, your criminal law class. And, I certainly hope that you have found these lectures helpful to you. There are some difficult doctrines, and I hope that I've helped.
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Causation (cont.) 12 results (showing 5 best matches)
- Now notice I, Dressler, I'm the one who battered the victim, I am a "but for" cause of the victim's death. But for hitting the victim, the victim wouldn't have been going to the doctor, and therefore wouldn't have been in the car, and therefore wouldn't have been struck by a lightning bolt. On the other hand, the lightning bolt was a cause, an intervening cause in the death, and specifically a coincidental intervening cause. That lightning bolt was going to occur at that moment at that spot, no matter what. It's just that I put the victim in the wrong place at the wrong time. So, should I be held criminally responsible for the victim's death? What's your intuition? Well, the general approach if we apply the doctrines I'm describing now, is to say that a coincidental intervening cause, the lightning, will be held responsible. And the original actor, me, in my example, will not be held responsible unless the coincidence was foreseeable, reasonably foreseeable. Otherwise, the... ...and...
- Now, another potential factor is the apparent safety doctrine. Apparent safety doctrine. Imagine for a moment firing a gun, and the bullet is coming towards the victim, but the victim is far enough away in the distance that the bullet can't reach the victim and it just plops to the ground. At that moment, when the bullet hits the ground, and we'll assume for current purposes that that gun had only one bullet in it, we would say that the would-be victim is now in apparent safety. At that point, in other words, the defendant's involvement in the events of having pulled the trigger sort of drops out of the picture. Now, if anything bad happens to the would-be victim later, it's not going to be the responsibility of the person who fired the gun. That's the idea of the apparent safety doctrine. And let me give you a real-life case, as an example. It's a 19th-century case and I'm gonna change the facts slightly, but not significantly. The case is State versus Preslar, P-R-E-S-L-A-R.
- Husband battered wife, and as a result, the wife walked out of the house late at night, on a very cold night, walked a long distance in the direction of her parents' home with the intention of going there for the safety from her husband, the batterer. She got within 100 feet of her parents' home, at which point she apparently decided that she wasn't gonna bother her parents late at night so she decided to sleep at the door of her parents, and to go in the next morning. So, she went to sleep in that terribly cold weather night, right outside her parents' home. And by the way, the parents were home, and she died of frost during the night. The question in the case was, was the defendant, her husband, who was still at home causally responsible for her death. Now notice, he was an actual cause of the death. If he hadn't beaten her, she wouldn't have left the house, wouldn't have been trying to get to her parent's home, wouldn't have died in the cold. But notice that she, the victim, was...
- All right, one final proximate cause way to look at things, sometimes useful is when you look at the intervening causes, that you distinguish between two kinds of intervening causes, one we will call a responsive intervening cause, and the other is a coincidental intervening cause. A responsive intervening cause is a force that comes into existence as a response, literally as a response to the defendant's conduct. A coincidental intervening cause is a cause that was gonna happen anyway. It's just maybe that the defendant put the victim in a place where that coincidence could occur. Let me give you an example. Jones shoots and wounds the victim, the victim goes to the hospital, and the doctor there takes the bullet out of the victim's body, but the doctor botches the job and the victim dies. The question is, will Jones be held responsible for the death of that victim or should the doctor who is obviously an intervening cause be held? And under this factor analysis, we would need to...
- In other words, the responsive intervening cause didn't just act unforeseeably but in a truly, truly bizarre way. Let me give you a different example, Jones wounds the victim, victim goes to the hospital, and our doctor, our responsive intervening cause, decides to strangle the victim. Now, that is a bizarre, abnormal response. That would be enough presumably to say, whoa, wait a minute, doctor botches surgery, well, that happens enough in the world to say but we can't call it bizarre, we can hold Jones responsible. But strangling, that criminal act by the doctor, now, that is really bizarre, and we might shift the blame from Jones to the doctor for the victim's death, even though technically, the doctor was a responsive intervening cause. Okay, but remember, there was a different intervening cause and that is a coincidental one. For example, I batter the victim, not badly, but enough that as a result of the battery, the victim gets into her car and drives to the doctor for some...
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Common Law Murder (cont.) 18 results (showing 5 best matches)
- Now, notice in the last hypothetical that I said that the victim died during the high-speed chase. So you might ask yourself, wait a minute, Dressler, that wasn't a killing during the commission of the felony, the stealing of the car, because the theft is already over. They stole the car. This was flight from the scene after the felony occurred. If you thought that, very good, very good. I'm glad you saw that, but that's another part of the controversy revolving around felony murder.
- Let me give you another example. Police observed someone stealing a car, so they go after him and a high-speed chase starts to occur. And during that high-speed chase, there's a car accident and one of the officers or maybe an innocent bystander dies as result of that car chase. Felony murder applies. Why? Because the car thieves were committing a felony, there was a killing during the commission or attempted commission of the felony. And it doesn't matter, but the mens rea of the defendants were or worth regarding the death. It's enough that there was a felony and somebody died.
- First, some quick points, and listen very carefully to this comment because this is something that many students miss. At common law, there were no degrees of murder. I know you've heard about first-degree murder and second-degree murder and so on, but in common law, there was no such thing as first-degree murder or second-degree murder. There was just simply murder. And at common law, all murders carried the death penalty. But legislatures in this country fairly early on began to feel that there were some murders that just didn't justify the extreme penalty of death.
- And so starting in Pennsylvania and then spreading over the country, states began to divide murder into degrees, first-degree murder, second-degree murder, and even in a few states, third-degree murder. In all cases, first-degree murder would carry the stiffest penalty. If the jurisdiction still has the death penalty, it could carry the death penalty. If not, it would be life imprisonment. Second-degree murder would involve, of course, lesser punishment. But again, I repeat, at common law, all murder is one crime. It's just plain murder.
- A third state that qualifies as malice has some pretty colorful common law language linked to it. Common law talks about a person acting with a depraved heart. Other courts talk about the person acting with an abandoned and malignant heart. Basically, what we're talking about is conduct manifesting in extreme indifference to the value of human life. Basically, courts will sometimes explain this a little further. They'll say that a person is demonstrating an utter callousness toward the value of human life or a complete and total indifference as to whether somebody lives or dies. Or as one Alabama court put, and I think they did it very well, it is, "And I don't give a damn attitude about human life." Very colorful language.
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Common Law Murder 37 results (showing 5 best matches)
- Now, notice in the last hypothetical that I said that the victim died during the high-speed chase. So you might ask yourself, "Wait a minute, Dressler. That wasn't a killing during the commission of the felony, the stealing of the car, because the theft is already over. They stole the car. This was a flight from the scene after the felony occurred." If you thought that very good, very good I'm glad you saw that. But that's another part of the controversy revolving around felony murder. The felony murder rule applies when the killing occurs during the commission or attempted commission of the felony. But the law treats the escape from the scene of the felony as part of what the law calls the res gestae, R-E-S G-E-S-T-A-E, or if you will, the body of the crime. So the felony murder rule applies if it otherwise applies. Not only while the crime is being committed, but even after the felony has occurred if the death occurs during the escape from the scene of the felony.
- First, some quick points and listen very carefully to this comment, because this is something that many students miss. At common law, there were no degrees of murder. I know you've heard about first-degree murder and second-degree murder and so on. But in common law, there was no such thing as first-degree murder or second-degree murder. It was just simply murder. And in common law, all murders carried the death penalty.
- Let me give you another example. Police observed someone stealing a car. So they go after him and a high-speed chase starts to occur. And during that high-speed chase, there's a car accident and one of the officers or maybe an innocent bystander dies as a result of that car chase, felony murder applies. Why? Because the car thieves were committing a felony, there was a killing during the commission or attempted commission of the felony. And it doesn't matter what the mens rea of the defendants were or weren't regarding the death, it's enough that there was a felony and somebody died.
- Remember what the definition of recklessness is, to consciously take a substantial and unjustifiable risk. In other words, when a person is aware that she or he is taking a substantial, unjustifiable risk of causing death to another person. And we can say that that person is acting recklessly. And when that recklessness is extreme when the conduct manifests in extreme indifference to the value of human life, we may say that that person has acted with what the common law would call a depraved heart or abandoned and malignant heart.
- Now, you need to understand that the felony murder rule applies whether the felon killed the victim intentionally or recklessly, negligently, or even accidentally. It doesn't matter. If a person commits the felony and somebody dies during its commissioned or attempted commission that will qualify as felony murder and therefore malice aforethought. Let me give you a couple of examples. Suppose we have two robbers we'll call one Mr. Unlucky and the other one, Mr. Lucky and they both rob a victim with an unloaded gun. In Mr. Unlucky's case, however, when he rob's our victim, the victim falls over dead from a heart attack brought on by the shock of the robbery. Well, we have felony murder. The person was committing a felony robbery. A person died during the commission of the felony because of the felony. And that's malice aforethought. Meanwhile, Mr. Lucky, the one who robbed somebody and nobody dies, is guilty of only the robbery whereas Mr. Unlucky is guilty of the robbery but also...
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Self-Defense 12 results (showing 5 best matches)
- Let's say I pull out that knife, and I'm going at the victim, or the would-be victim, and now the other guy pulls out that gun. So I drop my knife, and I run, and I say, "Forget it, forget it, forget it." And the other man continues to run after me, and I say, "I'm not gonna kill you. I'm not gonna kill you." But he continues to run at me, and he's still pointing that gun at me, and he says, "I'm gonna kill you, I'm gonna kill you, you son of a bitch." Now, fearful, I pull out a gun, and I also happen to have one, you see, and I turn around, and I kill him. Well, now I may be acting in justifiable self-defense. It's a close issue, but because I dropped the knife and ran and made it clear to him, and as far as I was concerned, the threat that I was creating is over, after all, I said, "Forget it, forget it," that appears to show that I communicated to him that I no longer represented a threat to his life, that I want to end the fight. At that point, I would no longer be deemed the...and
- And the most common justification defense that's ever used is, of course, self-defense, where a person says essentially, "Yes, I killed the person. Yes, I even intentionally killed this person, and yes, I intentionally and actually approximately caused the death of this person by my voluntary act. But I was still justified in killing that person because of self-defense." Now, your case book will almost certainly focus on deadly force type cases when self-defense is alleged, and therefore, the defendant will be charged presumably with murder or attempted murder. So I'm gonna discuss self-defense relating to the use by the defendant of deadly force, and that's why we have a murder or attempted murder case. Now, basically speaking, all justification defenses, including self-defense, have three general components that you should look for. First, the defendant must demonstrate that the use of force was necessary. Second, that the defendant must show that the degree of force used by the...
- Suppose I'm a fleeing felon, and a police officer is chasing me, and points a gun at me, and yells, "Stop or I'll shoot." And we'll assume for right now that the officer really means it. So I turn around, and I shoot the officer, killing her, and claiming self-defense. Well, there was an imminent deadly threat to my life, wasn't there? The police officer was about to shoot me, but to use self-defense, I have to be responding to an unlawful deadly threat. And if the officer had a right to threaten to kill me, remember I was a fleeing felon, then I don't have a right to kill her. I have to be responding not just to a deadly threat, but to an unlawful one. And then finally the requirement that the unlawful force or I should say, the unlawful threat, it must be imminent, it must be an imminent unlawful deadly threat. It means that the threat to my life must be just about to happen at that instant, and if I don't kill this person now, I will be killed almost immediately. Self-defense...
- At common law, even bad guys, even aggressors shouldn't be killed if there's some reason or, I should say, some way to avoid killing them. Now, let's consider another possibility. What if I could avoid an elderly man from attacking me by simply running away from him? After all, he has a knife not a gun, and he'll never catch up to me. He's 85 years old, and I can run faster. He'll never catch me. That raises another important self-defense issue, the so-called retreat issue, which is really a subcomponent of the necessity question. Because, again, if I know that I could retreat to a place of complete safety, in other words, if I know I can reach someplace without killing that elderly man and without that elderly man killing me, do I need to do so? Do I need to retreat? Well, the requirement that I shouldn't kill unless I reasonably believe that such force is immediately necessary would seem to require me to retreat. Because, again, if I know of a completely safe place to retreat to,...
- On the other hand, other states especially in very recent years have held that there is no retreat requirement, period. It started in Florida, and it came to be known as the stand-your-ground law, and many other states in slightly different forms but basically the same have followed suit. Now, to use the language of Florida, a person may stand his or her ground and use deadly force in response to an imminent deadly threat even if they could avoid that use of force by retreating to a known safe place. Quite simply in these newer and now majority jurisdictions, retreat is not required, period. You can stand your ground and kill. But even in the states that still require a person to retreat when possible, there is one universally accepted no retreat rule, and that is that a person is never and has never been required to retreat from his or her own home and thus leave the aggressor, the intruder inside your home. Our home is supposed to be our castle, our fortress, our sanctuary, a...
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Self-Defense (cont.) 12 results (showing 5 best matches)
- Let's say I pull out that knife, and I'm going at the victim, or the would-be victim, and now the other guy pulls out that gun. So I drop my knife, and I run, and I say, "Forget it. Forget it. Forget it." And the other man continues to run after me, and I say, "I'm not gonna kill you. I'm not gonna kill you." But he continues to run at me, and he's still pointing that gun at me, and he says, "I'm gonna kill you, I'm gonna kill you, you son of a bitch." Now, fearful, I pull out a gun, and I also happen to have one, you see, and I turn around, and I kill him. Well, now I may be acting in justifiable self-defense. It's a close issue, but because I dropped the knife and ran and made it clear to him, and as far as I was concerned, the threat that I was creating is over, after all, I said, "Forget it. Forget it," that appears to show that I communicated to him that I no longer represented a threat to his life, that I want to end the fight. At that point, I would no longer be deemed the...and
- And the most common justification defense that's ever used is, of course, self-defense, where a person says essentially, "Yes, I killed the person. Yes, I even intentionally killed this person, and yes, I intentionally and actually approximately caused the death of this person by my voluntary act. But I was still justified in killing that person because of self-defense." Now, your case book will almost certainly focus on deadly force type cases when self-defense is alleged, and therefore, the defendant will be charged presumably with murder or attempted murder. So I'm gonna discuss self-defense relating to the use by the defendant of deadly force, and that's why we have a murder or attempted murder case. Now, basically speaking, all justification defenses, including self-defense, have three general components that you should look for. First, the defendant must demonstrate that the use of force was necessary. Second, that the defendant must show that the degree of force used by the...
- Suppose I'm a fleeing felon, and a police officer is chasing me, and points a gun at me, and yells, "Stop or I'll shoot." And we'll assume for right now that the officer really means it. So I turn around, and I shoot the officer, killing her, and claiming self-defense. Well, there was an imminent deadly threat to my life, wasn't there? The police officer was about to shoot me, but to use self-defense, I have to be responding to an unlawful deadly threat. And if the officer had a right to threaten to kill me, remember I was a fleeing felon, then I don't have a right to kill her. I have to be responding not just to a deadly threat, but to an unlawful one. And then finally the requirement that the unlawful force or I should say, the unlawful threat, it must be imminent, it must be an imminent unlawful deadly threat. It means that the threat to my life must be just about to happen at that instant, and if I don't kill this person now, I will be killed almost immediately. Self-defense...
- At common law, even bad guys, even aggressors shouldn't be killed if there's some reason or, I should say, some way to avoid killing them. Now, let's consider another possibility. What if I could avoid an elderly man from attacking me by simply running away from him? After all, he has a knife not a gun, and he'll never catch up to me. He's 85 years old, and I can run faster. He'll never catch me. That raises another important self-defense issue, the so-called retreat issue, which is really a subcomponent of the necessity question. Because, again, if I know that I could retreat to a place of complete safety, in other words, if I know I can reach someplace without killing that elderly man and without that elderly man killing me, do I need to do so? Do I need to retreat? Well, the requirement that I shouldn't kill unless I reasonably believe that such force is immediately necessary would seem to require me to retreat. Because, again, if I know of a completely safe place to retreat to,...
- On the other hand, other states especially in very recent years have held that there is no retreat requirement, period. It started in Florida, and it came to be known as the stand-your-ground law, and many other states in slightly different forms but basically the same have followed suit. Now, to use the language of Florida, a person may stand his or her ground and use deadly force in response to an imminent deadly threat even if they could avoid that use of force by retreating to a known safe place. Quite simply in these newer and now majority jurisdictions, retreat is not required, period. You can stand your ground and kill. But even in the states that still require a person to retreat when possible, there is one universally accepted no retreat rule, and that is that a person is never and has never been required to retreat from his or her own home and thus leave the aggressor, the intruder inside your home. Our home is supposed to be our castle, our fortress, our sanctuary, a...
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Homicide 5 results
- Why this odd rule? Well, the year and a day rule was arbitrary, but it was adopted centuries ago to determine when the passage of time has become so great, that a death could no longer safely be attributed to the earlier assaultive conduct. After such a long time has passed, the common law felt that well, anything might have explained the death. It might not be attributable to what the defendant did and so arbitrarily they set up this year and a day rule. Now of course, that may have made sense again at early common law. We didn't understand medical care the way we do today and of course, today now that we have artificial life support machinery, you could put a person on a machine after being severely beaten or knifed, or shot, and they'd be in a coma, and be kept alive with life support for two or three, or four years. And suddenly, we would not have a criminal homicide under the year and a day rule. Consequently, because we better understand medicine today so that we can now...
- Okay. Now what about the other end of the spectrum? When does a human being cease to be a human being and simply become a corpse? At common law, a person was considered dead and thus no longer a human being when there was permanent, I stress permanent, cessation of respiration, in other words, breathing and pulsation, that is heartbeats. Now, that was a perfectly fine definition in common law. But today, as we know, we can use artificial life support machinery to keep a person artificially breathing, artificially then their hearts beating, and we can do that for a very, very, very long time. Today every state by statute has enlarged the common law definition of death. Today, states typically include brain death as an alternative form of legal death. In other words, once the whole brain of the person lacks any brain activity, a so-called flat EEG, electroencephalogram, then that person is deemed medically brain dead and today, now legally dead even if that person's heart continues to...
- In the common law, there were two forms of criminal homicide, murder and manslaughter. Both crimes have the same actus reus, the same social harm. In other words, whether the crime is murder or manslaughter, but what we're talking about is the killing of a human being by another human being. So in the vast majority of criminal homicide cases, there will be no actus reus or social harm issue. If Jane stabs John and John dies, well, we've got the killing of a human being by another human being. On rare occasion, however, there will be an actus reus or more specifically a social harm issue in a homicide case. Just occasionally. So let's consider those occasional cases. You'll remember again that the actus reus of criminal homicide is the killing of a human being by another human being and that raises the question of what is a human being. More specifically, at what point does a person become a human being and at what point does a person cease to be a human being? At the front end, at...
- One other matter that could sometimes come up if you don't look carefully at the actus reus of criminal homicide, something you ought to be careful of on an exam, when you're reading the facts in an exam, if the defendant throws in a bunch of dates, dates about when certain events took place in a homicide, pay attention. Let's assume for example, that on January 1 of the year 2000, the defendant shoots the victim. And further suppose that the facts tell you that the victim dies at a much later date, let's say in the middle of 2001, a year and a half later. If those facts are given to you on an exam, that should be a clue to you that you might have to consider another issue. What is that issue? At common law, there was a so-called year and a day rule. Simply put, at common law a death that occurs more than a year and a day after the original assault is not considered criminal homicide. So if the defendant shoots the victim on January 1, 2000 and the victim dies on January 2, 2001 or...
- Okay. We have our elements understood, we have our defenses understood. Let's take that information and now look at the crimes of murder and manslaughter. I need to begin with some introductory points. First, what is homicide legally speaking? At early common law, homicide was defined as the killing of a human being by a human being, the killing of a human being by a human being. Notice that that definition would include suicide. But later common law and certainly the law today defines homicide differently. It's the killing of a human being by another human being. So suicide is no longer a form of homicide. Now, the term homicide does not suggest it's a crime. Some homicides are justifiable as we've seen like self-defense. So the question is what makes homicide criminal homicide?
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Self-Defense (cont.) 17 results (showing 5 best matches)
- Okay, we have one last self-defense issue that I need to discuss, one that many case books now cover. And it relates to the problem of a victim, a victim of constant physical abuse. Often, it'll be a battered wife who kills her abuser. Now, the usual case of a battered woman killing her abusive partner will occur when he's beating her, in which case, the usual self-defense rules apply, the ones we've discussed. Common law, Model Penal Code, no doubt that our battered woman who's being attacked right now would be able to claim self-defense. But sometimes you get more ambiguous facts. For example, suppose the batterer is drunk, watching a football game on television. And his football team is losing. And he's angry as he always is when he's drunk and when his team has been clobbered. So he gets up from the sofa and sort of stumbles into the kitchen where his wife is. And he's got an empty beer bottle in his hand. And he's holding it sort of over his head. And he says to her, "Hey,...
- First, section 3.04 subsection 1 talks about self-defense in terms of what the actor believes, not what she reasonably believes. But don't be fooled by that. So many students are, because 3.04 says, and I quote, "Subject to the provisions of this section and section 3.09 and so on." Well, effectively, section 3.09 is being incorporated by reference into section 3.04. And when you turn to section 3.09, and if you look at subsection 2 of Section 3.09, you will see that if the actor is claiming self-defense but is acting on the basis of a negligent belief and unreasonable belief, then the actor may be convicted, not of purposeful murder, but of negligent homicide. And if it turns out that the person was reckless in his belief that he needed to use deadly force, then that person can be convicted of a crime of reckless homicide, such as manslaughter.
- In common law, when he turns his back on me to go and get the gun, the danger to my life is not yet imminent. He is still unarmed. The attack is not underway. So I probably will not be permitted to claim self-defense in common law if I were, for example, to stab him in the back when he returns. Under the Model Penal Code, however, I may be able to claim self-defense if I can prove the deadly force on my part was immediately necessary on that present occasion. In other words, the necessity on my part must be immediate even if the attack on me is not yet immediate or imminent. So when he turns his back on me to go upstairs, and get the gun, and load it, and come back downstairs, I can't afford to wait until that happens. Because if I wait, and I have no gun, I can't protect myself. And so when he turns his back to me to go upstairs, to get his gun, under the Model Penal Code, I could very well be able to claim self-defense if I stab him now in the back. It's now or never, because if I...
- That's the common law of self-defense. But what about the Model Penal Code? Well, the code recognizes what it calls the self-protection defense, same thing. And it's section 3.04, if you wanna look at it, and in most regards, it's the same as the common law. It's a very long section. And if you're going to study it in class, I would urge you to look at it very carefully. Subsection 1 of 3.04 sets out the general rules of self-defense. But you'll need to look at 3.04 subsection 2, which tells you when force is not justifiable. And in particular, take a look at subsection 2(b), which discusses when deadly force is not justifiable. I'm only gonna focus on a few points here.
- So unlike the common law where self-defense is an all-or-nothing proposition, it's sort of you turn the switch on or you turn the switch off. That is, if you're under the common law, if your incorrect belief is reasonable, you get the full defense, and you're acquitted. If your belief is unreasonable at common law, you lose the entire defense, and you can be convicted of murder. In contrast, the Model Penal Code, when you put 3.04 and 3.09 together, allows a person to get a partial defense so that a person who acts on the basis of a reasonable belief gets the full defense. If they act on the basis of an unreasonable belief, a negligent belief, then they can be convicted of a crime of negligence. And if they had a reckless belief, they can be convicted of a crime of recklessness.
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Manslaughter 18 results (showing 5 best matches)
- And finally, third, the person must not have had time to cool off. Courts on this third element are pretty strict, maybe even psychologically unrealistic. So, if a person is provoked and he thinks about the provocation and mulls it over, maybe spends hours thinking about it, getting angrier and angrier about what was done to provoke him until he finally explodes and kills the provoker. Well, there may have been adequate provocation, and yes, the defendant did kill in a state of passion. But the common law would say, "Hey, a reasonable person would have cooled down in that hour, would have gotten back their capacity for reflecting thoughtfully and rationally and non-violently." And therefore, the third element would not be met, and the person who would be guilty of murder. So, again, we're dealing here with an intentional killing, which would normally constitute murder. It's reduced the voluntary manslaughter if the defendant kills intentionally as a result of adequate provocation...and
- And finally, Model Penal Code has created a crime of negligent homicide. Finally, remember, with murder, you will likely deal at some point in your class and perhaps on the exam with a statute. And if so, you need to look at the statute to see how it divides murder, if it does, in two degrees. Look to see what constitutes first-degree murder, and how it explains second-degree murder. And I've gone through and explained to you some of the common ways in which murder is divided into degrees. But ultimately, you got to look at the statute in question.
- The first element, usually the most litigated is that the defendant must show that he killed because of so-called adequate provocation. That's the crucial phrase. And we'll come back to that. Second element, the killing must have occurred during the heat of passion, that is before the passion has cooled off. And third element, the heat of passion must have occurred before the actor had a reasonable opportunity to cool off. Those are the three elements to prove voluntary manslaughter. Adequate provocation that the person killed during the state of passion, and third, that the person didn't have a reasonable time to cool down. Now, your classic examples of voluntary manslaughter, husband walks into his home and to his surprise, observes his wife in an act of adultery with a third person, husband becomes suddenly enraged and kills his wife's lover. It's an intentional killing, so it would be murder unless we meet the three elements, adequate provocation. In this case, the provocation...
- Now, some jurisdictions, namely those that apply the Model Penal Code today, apply a much broader version of this doctrine. The Model Penal Code, first of all, doesn't call it voluntary manslaughter, they call it just plain manslaughter. And it states that what would otherwise constitute murder that is a purposeful or knowing or extremely reckless killing is reduced to manslaughter if it was the result of and I quote, "extreme mental or emotional disturbance for which there is a reasonable explanation or excuse." If so, then the offense is reduced to manslaughter. Now, notice, we're not dealing here technically with heat of passion, but instead with extreme mental or emotional disturbance. For example, there is a New York case, People vs. Kasasa. Now, here is a man who was deeply in love with his girlfriend, and she broke up with him. He, in turn, broke into her home while she was not there and he waited for her to come home because he wanted to convince her to resume their... ...And...
- But more accurately, it should be called the unlawful act of manslaughter. Simply put, at original common law and unintended homicide that occurs during the commission of an unlawful act. But an unlawful act not amounting to a felony constitutes involuntary manslaughter. So, you're committing an unlawful act but not a felony. And a death results from that unlawful act, then that would be involuntary manslaughter. Let me give you some examples of this ladder type. Driver doesn't stop at a stop sign, slowly rolls through the intersection. Have you ever done that? All right. So, you roll through the stop sign rather than stopping. Well, that is an unlawful act in the sense that you could properly receive a traffic ticket for failing to operate your car in accordance with the traffic regulations. Well, suppose your car rolls through that intersection without coming to a complete halt and a child jumps out in front of the car out of nowhere unexpectedly on foreseeably and you hit the child
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Mens Rea: Generally (cont.) 13 results (showing 5 best matches)
- And finally, we've talked about four mens rea terms in the model penal code and in many statutes, purposely, knowingly, recklessly, and negligently. We've also talked about the common law term intentional. And we've talked about this very important but difficult distinction between specific intent and general intent.
- Okay, so these are four very particular mens rea terms that you will need to learn. Purposely, knowingly, recklessly, negligently. And again, a person causes a particular result purposely if it's that person's conscious objective to cause that result. She knowingly causes the result if she's aware that that result is practically certain to occur. She acts recklessly if she's consciously aware that she's taking a substantial and unjustifiable risk. And the person acts negligently if she should have been aware that she was taking a substantial and unjustifiable risk.
- Let's go back to a crime that I've been mentioning over and over, burglary, defined again, as breaking and entering the dwelling house of another at night with the intent to commit a felony therein. So notice the actus reus of burglary, the social harm is complete the moment that a person as a result of voluntary conduct breaks and enters another person's dwelling house at night. But to be guilty of the crime of burglary, the person must have a particular intent. The intent that goes beyond, it goes beyond breaking and entering the dwelling house of another at night. Namely, the intent to do some future act, some further act, some act that goes beyond the breaking and entering of the dwelling house. What is that future further act? The act of committing some felony inside the home.
- And remember that in common law, the word intent or intentional adds up to purpose and knowledge. In other words, I cause a result intentionally if I wanted the result to occur purposely or know that it's virtually certain to occur. Now, as I noted, there are other common law and statutory mens rea terms. You may be asked to learn some of those in your class. The most notable other mens rea term that you'll learn is the term malice aforethought, a term used in murder statutes, but we'll hold off on that for right now.
- Okay, so we're not done with mens rea. There's another matter that we have to settle or resolve here. It's the very, very important concept, indifference between a so-called specific intent crime and a general intent crime. It is likely to be the most difficult concept you'll get in your class. And the reason for this is, unfortunately, there are multiple ways to define these terms, specific intent and general intent. From one professor to another, from one case book to another, from one court to another, there are disagreements as to what these words mean.
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Degrees of Murder 9 results (showing 5 best matches)
- Well, willful in this context simply means that the killing was intentional. In other words, this is one of those four malice categories, intent to kill murder. That's what we mean by willful. But to be guilty of first-degree murder under this kind of statute, the killing must not only be intentional, willful, but it must also be deliberate and premeditated. Let's talk about those terms. Let's talk about premeditation first. To premeditate is to think about the killing aforehand. To deliberate means to measure and evaluate what you're doing, weigh the pros and cons of killing someone. In jurisdictions that treat these terms seriously, they will point out that premeditation and deliberation combined characterizes a thought process undisturbed by emotion. In essence, it's a cold-blooded, well-thought-out, well-planned killing, like a contract killer. That's what we mean by a willful, premeditated, deliberate killing that it was intentional, that it was thought about beforehand for...
- Unfortunately, many states that have this formula in their first-degree murder statute have nearly obliterated the distinction. Some courts say that the premeditation required for first-degree murder can occur in just a few seconds. So, in those states, once the person comes up with the idea of killing somebody and then kills, they thought about it long enough, a split second or two. Bingo, first-degree murder. Basically, therefore, in those jurisdictions, virtually every intentional killing will be deemed premeditated and deliberate and therefore, first-degree murder. But in jurisdictions that take those words more seriously, which they should after all because the legislature put those words in there for a reason. In jurisdictions that treat it seriously, premeditation requires not any specific length of time, but it needs to be enough time to weigh and evaluate what you're doing. And it requires acting undisturbed by high emotion. It's more of a cold-blooded, well-planned killing.
- All right. We've talked about common law murder, but we need to talk about statutory forms of murder because, after all, that's where we are today. You will remember that I said a little earlier that a lot of states, many states, many years ago concluded that the common law definition of murder was too harsh and that not all murderers should be treated alike. And therefore, many states starting with Pennsylvania divided murder into degrees, first-degree, more serious, second-degree, less serious. And you will almost certainly be called upon by your professor to analyze some specific modern murder statutes, either from your own state or from the state in which some case you're reading applies. Now, there is no way for me to tell you what constitutes first-degree murder because every statute is its own statute. And therefore, the only way you would know what is first-degree murder versus what is second-degree murder, or even third-degree murder if a state has it, the only way to know...
- Many statutes state that if a homicide is committed in a particular specified way, it constitutes first-degree murder, for example, killing by poison or killing by lying in wait will very often be specifically listed as constituting first-degree murder. So, if the murder you're looking at occurred in that particular way mentioned under first-degree murder, well, it's first-degree. It's also first-degree murder often if the person kills during the commission or attempted commission of certain specifically listed felonies such as arson, robbery, and rape. In other words, it's the felony murder rule, but not the felony murder rule for all felonies, but for certain specific listed felonies that would constitute first-degree murder. A third version of first-degree murder, one that leads to a lot of litigation is a killing that is "willful, deliberate, and premeditated." What do we mean by those terms, willful, deliberate, and premeditated?
- All right. So, to summarize. Many states will have three categories of first-degree murder. First, murders that occur in a certain manner, such as by poison. Second, there's the felony murder rule if the killing occurs during the commission of certain specifically listed felonies. And third, any killing that is a willful, premeditated, and deliberate killing as those terms have been defined. But again, you have to look at the actual statute. It might not look the way I've just described, but that's a typical way. So, that's first-degree murder. But then what constitutes second-degree murder? Well, some statutes will tell you, but some statutes will simply say, "All other kinds of murder are second-degree murder." All other kinds of murder are second-degree murder. What does that mean? Well, what it means is that a lawyer simply considers all the kinds of murder that would constitute common law murder. And if those kinds of murder that would constitute common law murder are not...
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Mens Rea: Generally (cont.) 10 results (showing 5 best matches)
- So let's look at those four Model Penal Code mens rea terms and those mens rea terms are purposely, knowingly, recklessly, and negligently. And let me start with a hypothetical. I wanna kill my wife and I know my wife is going to be flying to London, and I am an expert bomb builder. So I construct a bomb. I put it on the plane that my wife will be taking and I set it so it will go off while the plane is flying over the Atlantic. I very much want my spouse to die because I want the life insurance proceeds. I know they're going to be 100 other persons on that plane and I fervently hope they won't die. I just want my wife to die. Okay. My bomb explodes over the Atlantic Ocean as planned. The plane disintegrates as a result of that huge bomb. My wife dies and big surprise, so do the other hundred persons on board, they also die. The question is, how many people have I killed intentionally? Now I've killed 101 people, right? My wife and the other 100 persons. But my question is how many...
- Okay. Now there are two other very important mens rea terms that the Model Penal Code uses and that most statutes also use, and those are the terms recklessly and negligently. The common law is a bit unclear as to the definition of the terms recklessly and negligently. In fact, in early common law, a court frequently used those terms interchangeably. So you couldn't really figure out the difference. Today, however, states often define recklessly the way the Model Penal Code defines it and the Model Penal Code provides that a person acts recklessly if that person consciously takes a substantial and unjustifiable risk of causing the particular harm that occurred. So notice that there are three components to recklessness. So let me say them again. A person acts recklessly if the person consciously takes a substantial and unjustified risk. A risk of what? A risk of causing the particular harm that occurred.
- So let me start by noting that criminal negligence and recklessness are the same in certain important ways. They both involve a substantial unjustifiable taking of the risk. Everything I said about recklessness a few moments ago as to what we mean by the terms unjustifiable and substantial are the same for recklessness and for negligence. The critical difference is that recklessness involves being consciously aware of taking a substantial and unjustifiable risk. In cases of criminal negligence, however, we would say that the person should have been aware as a reasonable person of the substantial and unjustifiable risk that she was taking, but that she wasn't aware. By using the words, should have been, should have known, or should have been aware, we are saying that a reasonable person would have been aware. So we think of this person, this negligent person as not quite as culpable as the reckless wrongdoer. She's not someone who says, "I know I'm taking a bad risk and I'm gonna do...
- Okay. Let's now talk a bit more fully about mens rea. Sometimes the definition of a crime will contain some specific mens rea requirement. The Model Penal Code has really helped all of us by telling legislatures that they should specify a mens rea requirement in all of their crimes and the Model Penal Code specifies four and only four different types of mens rea terms, and they define them. In contrast to the Model Penal Code, states that don't apply the Model Penal Code, you can find 20 or 30, or 40, or even more different mens rea terms that you may find in one statute or another. Happily, more and more states are moving in the direction of the Model Penal Code in this regard, basically applying only one of four different mens rea terms in a statute.
- So let's look at those terms right now in my hypothetical. Under the Model Penal Code, a person has purposely caused a particular result if it was the actor's conscious objective to cause that result. In other words in my hypothetical, I purposely killed my wife. It was my conscious objective to cause that result. Was is it my conscious objective to kill the other 100 people? Did I want them to die? No. And remember, I fervently hoped that they wouldn't die. So clearly it was not my conscious objective to kill them. So I did not purposely kill the other 100. I purposely killed my wife, but I did not purposely kill the other hundred. But surely, I deserve to be blamed for the death of the other hundred people and the Model Penal Code would agree with me. The code would say that I knowingly killed the other hundred persons. Why? Because under the Model Penal Code, a person knowingly causes a result, the result here, of course, being the death of another person, if the defendant is...
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Mistake of Fact (cont.) 8 results (showing 5 best matches)
- Now, having said all of that, and I'm sure your head is spinning a little right now, and I don't blame you, the common law approach to mistakes of fact is complicated because of this distinction between general intent and specific intent. But even if you've learned what I've just told you, sometimes common law courts have held that even a reasonable mistake of fact will not serve as a defense. And remember, ultimately, with a general intent crime, the court is concerned with whether or not a defendant has acted with a morally culpable state of mind. And so, it turns out that at common law, sometimes when dealing with a general intent crime, and only when we're talking about a general intent crime, the court applies a doctrine called the moral wrong doctrine. And when this doctrine applies, even a reasonable mistake of fact will not be a defense. And a great case to demonstrate this doctrine is a case called Regina versus Prince. Regina, by the way, when you see that in some cases or...
- And then with general intent crimes, the issue is whether the defendant acted in a morally culpable manner. And almost always, we resolve this issue by asking whether the defendant's mistake was reasonable or unreasonable. An unreasonable mistake in fact is not a defense, a reasonable one is. But remember, if the defendant acted on the basis of a reasonable mistake of fact, sometimes not often, sometimes the court will fall back on the moral wrong doctrine and simply try to determine whether or not the defendant's conduct looking at the facts in the eyes of the defendant as to what was going on was acting in a morally wrongful manner, that's overall the common law approach to mistakes of fact. Now, let's turn to the Model Penal Code approach to mistakes of fact, which is much easier to apply. Model Penal Code Section 2.04 Subsection 1 tells you how the Model Penal Code deals with mistakes of fact, and by the way, mistakes of law to which we'll be discussing shortly. And the nice...
- Essentially, what this means is that by committing a morally wrongful act, Prince or any defendant assumes the risk that what he's doing is not just morally wrongful, but also criminal. So, in this case, although Prince reasonably believed that he was taking an 18-year-old away from her parents, and even though that wouldn't be a crime, it is a morally wrongful act according to the court, and he knew that he was performing that morally wrongful act, and so he assumes the risk. And lo and behold, he was mistaken reasonably about her age. Now, perhaps when you look at this case, you can see why the moral wrong doctrine is highly objectionable. After all, even if Prince did do a morally wrongful act by taking what he reasonably believed to be an 18-year-old away from her parents, even if we accept that, the morally wrongful act of taking an 18-year-old away from her parents isn't a crime, yet he's convicted. But why should he be convicted of a crime when he reasonably believed she was...
- Remember Mr. Keeler who killed a fetus, but that wasn't a crime. So, we couldn't punish him. But taking an 18-year-old away from her parents isn't a crime. And that's what he reasonably believed he was doing. So, shouldn't the principle of legality prevent the application of the moral wrong doctrine since what Mr. Prince thought he was reasonably doing was not a crime and yet he ends up being convicted of the crime? That seems wrong. And that's why the moral wrong doctrine is controversial. But it's used sometimes. So, you should kind of keep it in the back of your mind, this concept of the moral wrong doctrine. But again, when it applies and it doesn't usually...the courts don't usually apply it in modern times, sometimes they do, but when they apply it, it only applies to general intent crimes. So, let me review where we are. In a common law jurisdiction when we're dealing with a mistake of fact, first and foremost, what you do is look at the crime and characterize it. Is it...
- In short, you apply the specific intent rule that we discussed for common law. We use that rule to apply to all crimes under the Model Penal Code that require a mens rea requirement. Every crime under the Model Penal Code has a particular, if you will, a specific state of mind and that specific state of mind, whatever it is, must be proved beyond a reasonable doubt. So, either the defendant had the particular state of mind or he didn't, either the mistake negates the particular state of mind or it doesn't. You simply look at the definition of the crime. You look and see what state of mind, what mens rea is definitionally required, and you'll see it right there in the definition of the offense, and then you decide whether the defendant's mistake did or did not negate that particular state of mind. So, for example, suppose that Arnold is a hunter in a forest shooting at what he thought was a deer, but was actually a human. He kills the human and he's charged with murder. We'll assume...
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Necessity 14 results (showing 5 best matches)
- Now, a couple of points. First, most commentators believe that this defense is unavailable for the crime of murder. We're talking now the common law. Many of you in your classes may read or may have already met by the time you're listening to this a case called Dudley and Stevens. This was a case of four persons on a lifeboat. They were out there almost three weeks without food or water after their yacht had sunk. They were hoping that someone would come and save their life, but there didn't appear to be any hope. They were all nearing death. Eventually, Dudley and Stevens, two of the men in the boat, killed a youth on a lifeboat who was already sick and closer to dying. Why? So they could eat that boy's remains so they could stay alive a little longer in hopes that they would be discovered and saved. And indeed, later they were saved. But Dudley and Stevens were prosecuted for murder, and their claim of necessity was denied.
- Third, the defendant must not be at fault in creating the emergency. Maybe he was just dumb. Maybe he left his house went onto the road to talk the tornado. And he wanted to see how long he could stay out there and play chicken with the tornado. And at the last moment, he chickened out. Well, in that case, he got himself into his own predicament. Of course, he didn't create the tornado, but he created the emergency by coming out of his own home and taunting the tornado. If those were the facts, he's not gonna get the necessity defense.
- Okay. So we have now talked about seven justification defenses, self-defense, defense of others, defense of property, defense of habitation, the two law enforcement defenses, namely crime prevention and prevent the escape, and finally, we looked at the residual defense, the defense of last resort, the defense of necessity or, if you will, choice of evils.
- Third, the person must not be at fault in creating the emergency that necessitated the situation. In other words, you can't get yourself into the pickle through your own negligence or recklessness and then try to get out of the pickle through necessity. And finally, fourth, and maybe most basically, it must, in fact, be the case that the harm that the defendant is causing is the lesser of two evils, in other words, weighing what the defendant did versus what would probably have happened if the defendant had not acted as he did. We have to be able to conclude that the defendant did the right thing, the lesser of two evils. If you can meet those four elements, the defense would be met.
- Now, that's a correct reading of the case. And as I say, most commentators think that that is the correct reading. And indeed, most courts in the United States have interpreted Dudley and Stevens for the view that the necessity defense does not apply in murder cases. Then, it follows that no matter what the situation may be, even if killing an innocent person would save 100 innocent people, the defense of necessity will never apply. The Model Penal Code, however, has taken an opposite position. Section 3.02, "The choice of evils defense may be used for any crime as long as you meet the basic criteria of the defense, including that it is the lesser of two evils."
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Defenses of Property and Habitation 10 results (showing 5 best matches)
- Now the original common law rule was amazingly broad in this regard and it is followed today by a small minority of states, but it's a good starting point. And that rule is or was that a person could use deadly force against another if he reasonably believed that that other person was imminently and unlawfully about to enter your dwelling and if deadly force was necessary to prevent that intrusion.
- So for example, suppose a homeowner realizes that the person who's trying to enter the home is his hard-of-hearing and terribly drunk neighbor, Charlie. Charlie is so drunk that he thinks he's entering his own home, and he has such bad hearing that there's no way you can warn him before he enters. Under the original common law rule and a very minority rule today, you, the homeowner, could blow Charlie away. Why? Well, because the home dweller, you, reasonably believe that Charlie is going to enter immediately and unlawfully. After all, it's unlawful because it isn't his home. And there was no other way to prevent him from doing so or so we're going to assume because he was hard-of-hearing and therefore there was no way to warn him. You would be justified in firing the gun at him.
- And I also want to warn you that some states today by legislation do permit a defendant to use deadly force if necessary to protect some property, most especially the automobile. But those statutes conflict with the common law, and at least at this moment are still in the minority.
- So notice we have three requirements, an imminent entry, it's an imminent unlawful entry, and a necessity to use deadly force to prevent that entry. And again, overlaid over all of that is simply that your beliefs have to be reasonable, they don't have to be correct.
- Now, if you look at that rule carefully and think about it, it's really pretty broad. Notice, there is no requirement under that rule that the home dweller believes that the person who is acting unlawfully and entering is going to do any serious harm inside the house. It's simply enough that the intruder is going to enter. Period.
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Intoxication 11 results (showing 5 best matches)
- It's simply the case where a person goes out and gets drunk or voluntarily takes drugs and thus becomes voluntarily intoxicated. And the rule simply is that voluntary intoxication is not an excuse. Period. Now, if you think about it, that's understandable. Why would we want somebody who voluntarily gets drunk or voluntarily takes a drug and then goes out and commits a crime to be able to say, ah, don't blame me because I wouldn't have done it if I hadn't been drunk. That's not gonna work. Voluntary intoxication, therefore, is never an excuse for the commission of a crime.
- If Amy is so drunk that when she killed somebody that she truly doesn't realize that she was shooting a person, then she doesn't have the required intent to kill, and shouldn't be convicted of an intentional form of homicide. So how do we state the rule? Well, when dealing with voluntary or self-induced intoxication, we can say that the law is very, very strict. And the common law here distinguishes between general intent and specific intent crimes. Remember that distinction. If not, you will need or want to go back to the earlier lectures on it. Most crimes, as I've mentioned are general intent crimes. And the rule is that voluntary intoxication is never a defense even to negate mens rea if it's a general intent crime.
- And remember if you have one of those rare involuntary intoxication cases, the defendant gets the defense for both general and specific intent crimes or if his behavior would satisfy the state's insanity rules even though he doesn't have a mental disease.
- The second excuse that we'll talk about is exceptionally narrow and less popular than duress, and it's the excuse of intoxication. And by the way, as we discuss intoxication, this defense covers alcohol, but it also covers drugs. Even though we normally think of the word intoxication in the context of alcohol, but it does apply to drugs. Now, when the issue of intoxication arises, the first thing you need to determine is whether you're dealing with so-called voluntary intoxication or instead involuntary intoxication because the rules differ. Let's deal first with what is far more common, voluntary intoxication or what the model penal code characterize as self-induced intoxication. It's the same thing.
- But now suppose instead of being charged with rape that a drunk individual is charged with a crime of assault with intent to commit rape. Now that is a specific intent crime. Many jurisdictions, not all, but many hold that voluntary intoxication is a potential defense to a specific intent crime if in fact at the time of the offense, the defendant's intoxication was so severe that he lacked the specific intent required in the definition of the crime. So if our defendant, let's call him George, is prosecuted for assault with intent to commit rape, and George comes to court and says, I was so drunk or I was on drugs so badly that I didn't know what I was doing or I didn't know I was having intercourse with the victim. Or George says I was so intoxicated that I genuinely believe she consented to the intercourse. Well, if the jury believes his claim, then he didn't commit the crime of assault with intent to commit rape. Because if you accept what he said, he didn't know what he was doing...
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Diminished Capacity 12 results (showing 5 best matches)
- Let me give you a real case. This particular gentleman was released from a mental hospital. And one night, confused, he went into a house he believed was his. He was confused because he still was mentally ill. He entered somebody else's apartment. Apparently, it was unlocked and he started living there. The real family was on a vacation, they were gone for a while. And while he was there, he moved the furniture around because he didn't like the way he had set it up earlier. Of course, it wasn't his furniture and he hadn't set it up earlier. And then the real homeowners came home one day and they find this very mentally ill person living in their home cooking dinner. And when the real homeowners entered, the defendant seemed genuinely surprised. Well, not surprisingly, our sick gentleman was arrested and charged with burglary. Again, breaking and entering the dwelling-house of another at night with the intent to commit a felony inside.
- Okay, take a breath. Look where we are. We've now talked about all of the elements of the crimes, we've talked about all of the justification defenses, and now we've talked about all of the excuse defenses. So now we're gonna move on and we're gonna start on an entirely different topic. We're gonna start talking about some specific crimes that your teachers apt to discuss in some detail, and we're gonna start with the crimes of murder and manslaughter.
- That leads us to our final excuse, it is the excuse of diminished capacity. It also is a controversial excuse. And in fact, a good number of jurisdictions today no longer recognize this defense. And actually, there are two versions of diminished capacity. I'm gonna call one of them the mens rea version and the other the partial responsibility version. And we need to talk about them separately. The mens rea aversion looks and works and acts just like voluntary intoxication does. Basically, the defense states as follows. If a person claims he suffers from some mental condition, maybe a mental illness but not one extreme enough to render him legally insane. Or maybe the person has a very low IQ or perhaps has some brain damage or Alzheimer's disease, whatever it is. If because of this mental condition the defendant lacks the specific intent to commit a specific intent crime, then the defendant will be acquitted of the crime. In other words, diminished capacity potentially acts just...
- Now that leads us to the second version of diminished capacity, one that does not involve negating the mens rea of the crime, and that's why I call it the partial responsibility version of diminished capacity. And it is used simply to reduce one crime, murder, to another crime manslaughter. So in other words, it's only a partial defense if it is a defense at all, and it applies to just the one crime murder to reduce it to manslaughter. Let me explain the basic idea, it is used with a crime of murder to reduce it to manslaughter on the ground that a mentally ill person or somebody who has some mental conditions, such again as low IQ or Alzheimer's or something, that such a person, even if they're not so badly off that they are insane, nonetheless are less morally culpable for their actions than somebody in normal mental health who commits the same crime.
- But lo and behold, the state of Arizona bars the introduction of mental health testimony to negate mens rea. Arizona allows mental illness evidence to prove insanity, but not to prove lack of mens rea. In essence, Arizona does exactly the opposite of what Kansas did. Remember Kansas abolished the insanity defense but allows mental illness evidence to be used to try to negate the mens rea. In Arizona, you can't use it to negate mens rea, but you can raise the claim of insanity. Well, is that constitutional to do what Arizona has done? And again, the Supreme Court answered that question in Arizona v. Clark , and again, it answered the question by saying that the due process clause is not violated by what Arizona has done. The court held that the risks of permitting such evidence on the issue of mens rea, the risk of using controversial psychiatric evidence, the risk of confusing jurors justified Arizona if it chose to do so from barring such evidence to negate mens rea.
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Sources of Criminal Law 9 results (showing 5 best matches)
- All right, let's start by talking about the sources of the criminal law. Where does the criminal law come from? What is, if you will, the roots of our criminal law? Well, the American law of crimes is primarily English in its heritage and common law in its origin. And what do I mean by common law? I mean, judge-made law. Common law means judge-made law. Essentially judges in England created the criminal law that we now know. Two hundred and more years ago, a lawyer or more accurately in England, a barrister would not pull out a penal code off the library shelf and there find a list of all the crimes and all the defenses to crimes. Lawyers back then read court opinions because judges formulated and reformulated, shaped, and reshaped what we now know as the criminal law. Then the English judge-made or common law was brought to this country by the colonists where it was then shaped by the judges here. Here, of course, it was shaped by or shaped in ways to satisfy American values and...
- So the obvious question you're going to ask, if not now, sometime this semester in your class is well since we're not living in the 17th and 18th centuries, why do we spend any time talking about the common law? Which I admit is a fair question, that a fair amount you are gonna ask. Well, let me warn you, or actually assure you that you will look at statutes, perhaps statutes from your own state, and very likely you will also look at something called the Model Penal Code or MPC. And I'm gonna turn to that shortly. And of course, you'll look at statutes in the specific cases you read, but here's the point most criminal law statutes, most major crimes that have been enacted in each of the states derive from the common law. So to understand the meaning of most criminal statutes, you often have to look at the common law. Let me give you an example. There's a California case that's used in a lot of the casebooks Keeler versus Superior Court. And it involves a man, Keeler who learned that...
- Some states have enacted significant portions of the MPC as to their own penal code and often state courts in applying their own non-model penal code statutes, still look to the MPC for guidance. So the MPC serves really as a very useful learning tool, a way for you to compare the common law to the Model Penal Code, and perhaps to compare to the statutes in your own state. Some professors emphasize the MPC in class more than the common law, some less. In my classes, I emphasize it about equally, and I'll try to keep a relatively similar balance here.
- So American criminal law at its origins, at its roots is common law in nature, and it comes from English soil. Now today, of course, we do pull out the penal code or criminal code to learn the law. Today, if a lawyer or law student wants to know the law in an appropriate state, you start by looking at a particular state penal code. Today, legislatures, not courts enact statutes that define the crimes, enact the defenses to criminal conduct, and judges instead of making new crimes interpret the criminal statutes enacted by the legislators.
- Well, the prosecutor charged Keeler with murder. Murder was defined under California statutes and I'm quoting now literally, ''killing of a human being by another human being with malice aforethought.'' Now, Mr. Keeler's lawyer argued that his client couldn't be charged with murder. Why not? Well, because he said, ''Keeler, didn't kill a human being. He killed a fetus.'' And the statute says, remember that murder involves the killing of a human being by another human being. So the question before the California court was simply is a fetus that is born dead, a human being for purposes of the murder statute?
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Theories of Punishment 28 results (showing 5 best matches)
- The theories of punishment help us to answer those types of questions. But indeed, is it morally justifiable to punish a particular person for committing a particular act on a particular occasion? That's really the question we'll be focusing on and you will be focusing on in your class. In other words, not just why do we have criminal laws in general, and why have we built up a whole criminal justice system with police and prosecutors and courts, but can we justify punishing a particular person who's here in front of us, punish them in a way that we intend to punish them and inflict pain on this particular occasion?
- So let's spend a little time talking about punishment, and I promise you, if you learn how to use these tools of punishment, you will be better equipped to make sense of what you're learning and to discuss the topics your professor wants to discuss and wants you to discuss and to think about. Okay, well, there are two conflicting or at least potentially conflicting theories of punishment that seem to explain and justify why and when we might wanna punish a particular person.
- So we have general deterrence and specific deterrence, and there is a third category of utilitarianism and it sometimes called rehabilitation. Here, we use a criminal conviction to take a person who has committed a crime, find out why she committed it, and try to rehabilitate her, that is, change her. If she committed the crime because of drugs, well, let's get her off drugs. If she committed the crime because she was unemployed and needed money to survive and she couldn't get a job because she was illiterate or otherwise didn't have adequate skills for a job, then let's train her. If she has a short temper and that's why she committed the crime, well, let's work on anger management. That's rehabilitation.
- So if this is going to be done in your name and in my name, if we are gonna intentionally inflict pain upon other human beings, we need to have a good reason for doing it. And the theories of punishment that you will learn in this class help to develop the reasons why it may be okay in certain circumstances to purposely inflict pain on fellow citizens, and that is to punish others. And there will be reasons why we don't inflict pain on other persons sometimes even when they do something wrong.
- So this person, this wrongdoer owes a debt to society, and punishment is the means for paying that debt. To a retributivist, therefore, one punishes an individual because they have chosen to do wrong, and we punish that person proportional to what they have taken from us, roughly proportional in other words, to the crime they've committed and proportional to the wrongdoer's personal moral blameworthiness for causing that harm.
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Actus Reas (cont.) 17 results (showing 5 best matches)
- So what do I mean by social harm? Well, first, notice I put the word social in there, which is to remind you and to remind all of us that we're dealing here with criminal law and not tort law. We're dealing with harm to the whole community, to society and not just to the immediate victim. Remember what I said before, a criminal conviction is a statement by the whole community condemning and denouncing the individual and the individual's actions.
- Now, suppose you had a different crime. For example, the crime of larceny, theft. As you'll later see, larceny is defined as the taking and carrying away of the personal property of another, which occurs with a particular mens rea that we'll discuss later. For now, we're talking about the actus reus, so your job would be to determine whether the defendant took and carried away personal property that belonged to another. If the taking and carrying away of the personal property of another occurred and the effect conduct included a voluntary act, well, you've proven the actus reus of larceny.
- Finally, a fifth exception, an exception again to the general rule that you are not held responsible for your omissions. A fifth exception occurs when a defendant acts when she has no duty to act and then decides I'm gonna stop acting. And that later omission after the defendant had begun to act, that later omission now makes matters worse for the victim than if the defendant had not started to act at all in the first place.
- So, okay, those then are the five separate exceptions to the general rule that there's no responsibility for an omission. First, if there's a statutory duty to act. Second, some important status relationship. Third, a contractual duty to act. Fourth, cases where a person creates a risk of harm to the victim by positive action and then fails to deal with that risk that they've created. And finally, when a person begins to act then stops, and because of stopping has enhanced the risk to the individual.
- So again, the first thing you look at in any criminal case is whether the defendant committed the actus reus or external part of the crime. And this in turn requires proof that the defendant's conduct included a voluntary act or, rarely, an omission. And second, that that conduct or omission resulted in the social harm set out in the definition of the crime.
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Mens Rea: Generally 20 results (showing 5 best matches)
- So, let's look at those four Model Penal Code mens rea terms. And those mens rea terms are purposely, knowingly, recklessly, and negligently. And let me start with a hypothetical. I want to kill my wife. And I know my wife is going to be flying to London, and I am an expert bomb builder. So, I construct a bomb. I put it on the plane that my wife will be taking. And I set it so it will go off while the plane is flying over the Atlantic. I very much want my spouse to die because I want the life insurance proceeds. I know there are going to be 100 other persons on that plane. And I fervently hope they won't die. I just want my wife to die. Okay. My bomb explodes over the Atlantic Ocean as planned. The plane disintegrates as a result of that huge bomb. My wife dies, and big surprise, so do the other 100 persons on board, they also die.
- Now, you'll remember I started this hypothetical by asking you how many people did I intentionally kill. And, as I said, the term intent or intentional is a common-law term, and it is one used still in many non-Model-Penal-Code statutes. Well, basically, the Model Penal Code concepts of purpose and knowledge when combined add up to the common law meaning of the term intentional. In other words, if a person either purposely or knowingly causes a particular result, at common law would describe the situation as saying that the individual intentionally caused the result. So, at common law and according to statutes that use the term intentionally, unless they give you a different definition of the term intentionally, at common law, the term intentionally would mean that in my hypothetical I intentionally killed 101 persons, 1 person, my wife, because it was my conscious objective and the other 100 because I knew it would happen.
- So, at common law, I killed 101 people intentionally. Okay, now, there are two other very important mens rea terms that the Model Penal Code uses and that most statutes also use. And those are the terms recklessly and negligently. The common law is a bit unclear as to the definition of the terms recklessly and negligently. In fact, in early common law, a court frequently used those terms interchangeably. So you couldn't really figure out the difference. Today, however, states often define recklessly the way the Model Penal Code defines it. And the Model Penal Code provides that a person acts recklessly if that person consciously takes a substantial and unjustifiable risk of causing the particular harm that occurred. So, notice that there are three components to recklessness.
- The actor must have been aware, actually aware, consciously aware that he or she is taking that substantial, unjustifiable risk. It isn't somebody who is simply blind to the risk, it's worse. The person is aware of the risk, aware that he's behaving in a dangerous and unjustifiable way and yet goes ahead anyway. If you meet those components, that the person took an unjustifiable risk, a risk in other words that a reasonable person would not have taken, if that risk-taking was grossly in violation of due care so that you can say it was a substantial and unjustifiable risk, and if the defendant was consciously aware of this fact, then it constitutes criminal recklessness. So, whenever you see a crime that includes the term recklessness in its definition, that's what you probably have to prove and certainly have to prove under the Model Penal Code.
- Everything I said about recklessness a few moments ago as to what we mean by the terms unjustifiable and substantial are the same for recklessness and for negligence. The critical difference is that recklessness involves being consciously aware of taking a substantial and unjustifiable risk. In cases of criminal negligence, however, we would say that the person should have been aware as a reasonable person of the substantial and unjustifiable risk that she was taking but that she wasn't aware. By using the words should have been, should have known, or should have been aware, we are saying that a reasonable person would have been aware. So, we think of this person, this negligent person, as not quite as culpable as the reckless wrongdoer. She's not someone who says, "I know I'm taking a bad risk, and I'm going to do it anyway." We're dealing with a person who isn't aware that she's taking a substantial and unjustifiable risk. She should be aware, but she isn't. That's negligence.
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Causation (cont.) 24 results (showing 5 best matches)
- Yes, there may have been the voluntary act and there was the social harm, and the defendant may have even possessed the requisite mens rea and may have been an actual conduct, actual cause of the death. But if the proximate cause was not also proven, one of the elements of the crime has not been proven. So, when we have an intervening cause, and thus have a real proximate causation issue, the question is, who's responsible?
- And again, I repeat, there are no bright-line rules. But there are factors that you can think about. And these are factors that on an exam, you're gonna wanna play around with, and use to show the arguments for and against finding the defendant to be the proximate cause. But don't be surprised if some of those factors lead you one way, and others lead you the opposite way. That's just what happens when you're dealing with proximate cause. So, I'm gonna tell you about a couple of the factors in determining probable...proximate cause. But remember, they are just factors, they are not rigid tests.
- One of the factors to consider is the so-called intended consequences factor. It is sometimes said that a jury will look backwards from the result, let's say the death, and continue looking backwards in time, and continue looking backwards until it finds an intention to cause that harm. And at that point, the jury will stop looking any further back, and will hold that person responsible.
- So, proximate causation is where we separate out the President and the husband from the wife. And proximate causation ultimately is a policy issue. Essentially, what we do is we look at all of the actual causation candidates, that is all of the "but-for" causes of a result and decide which one or ones should be held causally responsible for the harm.
- You can think of proximate causation a little like a police lineup, and in the lineup, you have all of the actual "but-for" causes of the social harm, all of the actual causes. And proximate cause is the point when you pick out the particular person or particular force and say that he or she or it is the proximate cause, the legal cause of the result.
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Law Enforcement Defenses 11 results (showing 5 best matches)
- And remember, no deadly force can be used to defend personal property, but, yes, as to habitation. And then we had our third pair of justification defenses, the law enforcement defenses, defenses, if you will, five and six, crime prevention. And if it's too late to prevent the crime effectuating the arrest if necessary by preventing the escape of the arrestee.
- Okay, let's take stock of where we are, in terms of justification defenses. Because if you think about it, we've been discussing them more or less in pairs. There was self-defense and defense of others. Both of them are sort of bodily protection defenses. And then there was defense of property and defense of habitation. Those two deal first with personal property, the second defense with the home.
- In fact, the rule was at original common law, the police didn't even have to demonstrate that it was necessary to use the extreme measure of deadly force. If a felony occurred, and the officer was trying to make the arrest or prevent the escape of the criminal, he could shoot and kill that person, period. He could shoot him in the back if he wanted to.
- And he could do so even if the felony involved a non-violent crime, no requirement of necessity. Well, that extreme rule was explainable, I won't even say justifiable but explainable, by a simple but important common law fact. At original common law, first of all, there were only six or seven felonies. And every felony, even non-violent ones carried a mandatory death penalty.
- Well, of course, that argument, even if one could justify it in the past cannot apply today. Today, the death penalty is only available for murder and it isn't automatic even there. And there are hundreds of felonies on the books now not five, or six, or seven. And many of those felonies are non-violent ones. So today, deadly force is usually limited to cases of forcible felonies. In other words, a police officer may use deadly force if, but only if the officer reasonably believes it's necessary to prevent the escape of a person who has committed a forcible felony.
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Duress 11 results (showing 5 best matches)
- And fourth, at common law, and in most states today, duress, as we saw with necessity is not a defense to a crime of murder. If there's a kind of, "You kill somebody, or I'll kill you," type of threat, if somebody puts a gun to your head, or to the head of your child, or to the head of your spouse, and says, "I will kill you, or I'll kill your child unless you kill Jones," and if you then go and kill Jones, at common law, and under most statutes today, you will not be allowed to claim duress, you will be guilty of criminal homicide. But let's now look at the other crimes. And let's look at a typical duress situation.
- Suppose you have a terrorist group that takes the mother and her daughter hostage, drives them to a bank, and says to the mother, "You are going to go and rob that bank. And if you don't, we're going to kill your daughter. We have her right here. We'll keep her and we'll kill her if you don't cooperate." All right? Now, if the mother, in this case, gives into the threat, commits the bank robbery, and then is charged with robbery, she will almost certainly claim duress.
- You can't, in other words, claim duress, as a defense if you're threatened by a tornado. You have to use necessity if you're going to claim a defense to the tornado. But there's a second, and of course, more significant distinction between necessity and duress. And that distinction is that necessity is a justification defense. The person has done the right thing under the circumstances, he has chosen the lesser of two evils.
- So, now, we're going to look at how the law deals with excuses. And we're going to see that the law doesn't look very kindly upon excuse defenses. There are fewer excuse defenses, and there are generally speaking fairly narrowly defined. So, let's turn to those few narrow excuse defenses.
- Third, was the mother at fault for being in this situation? Well, in our facts, I've given you nothing that would suggest that she was at fault. I mean, she was kidnapped by the terrorists, mother, and daughter. So, she's not to blame. So, all of the elements of duress are met, and she would be excused for the crime of bank robbery, she would be acquitted.
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Insanity 18 results (showing 5 best matches)
- As for utilitarians, the insane are not likely to be deterrable, and therefore, there is no general deterrence value in punishing the insane. Yes, we want to take those people off the street, to protect society from them and to protect this individual from himself. And we certainly want to give them medical or psychiatric care for their sake. But we also don't want to condemn and stigmatize. So both utilitarianians, at least under general deterrence principles, and retributivist can justify the defense of insanity. And it should be pointed out that in nearly all jurisdictions, a person found not guilty by reason of insanity will be civilly committed to a mental institution after the acquittal and will remain committed until that person is no longer dangerous to himself or to others.
- All right. That leads us to the excuse of insanity. It is historically the excuse that the common law has recognized longer than any other excuse. And yet, it's also the most controversial. We go through cycles in our history, where there is strong public desire to abolish the defense, particularly after highly publicized insanity acquittals. But then, the public's animosity subsides and the defense remains. That said, there are five states today that have abolished the defense of insanity. But the remainder of the states, and the District of Columbia, and all of the federal courts still recognize insanity as an excuse.
- Well, first, why do we excuse insane people? Insanity is an excuse because we want to distinguish in the law between, if you will, the bad and the mad, between sickness and evil. We want to punish those that are bad, but we want to give medical care to people who are sick. In essence, we consider that a person who is insane is not responsible for his or her actions. They lack the attributes of rationality and of freewill that healthy people possess. Therefore, the insane do not deserve punishment. That, at least, is the retributive underlying explanation for recognizing the defense of insanity. We simply don't want to go around condemning, and stigmatizing, and punishing, as criminals, people who are mentally ill, who are insane.
- First, the defendant is insane if at the time of the act, he didn't know the nature and quality of the act he was doing. And, again, the second alternative prong, at the time of the act, he didn't know what he was doing was wrong. Now, notice, M'Naghten is a very narrow defense. It is what we call a cognitive-based defense. Let's go through the two prongs closely. Assume that there is expert testimony, that our defendant, Jones, is in fact suffering from some recognized mental illness. Okay, that aside, our first prong, says that Jones is insane if he didn't know the nature and quality of the act he was doing. What do we mean by that? Some courts treat this prong very narrowly. For example, does Jones know that he had a gun in his hand, that he was pointing the gun at another person, and did he know that he was pulling the trigger? And if the answer is yes to that, then he knows the nature and quality of his actions.
- Now, some courts have treated this first prong the way I've described it. It's just too strict. It's too much to assume that a person would be so far out of touch with reality that she can't tell her neck from a lemon. So consider this, a four-year-old child might very well know what he's doing by picking up a gun and pulling a trigger. The four-year-old knows he's picking up a gun and pulling a trigger, but a four-year-old doesn't appreciate the nature and quality of what he's doing. That four-year-old doesn't really understand what it means to kill somebody. A child doesn't understand that people are really gone forever when they die. They don't know what a death does to a loved one. Now, of course, a child has no mental illness, but some adults may be so mentally ill that they're more like a child. So some courts require, in order to be determined sane, a kind of deeper cognition, such that if Jones, because of a mental illness, doesn't have that deeper understanding of what it...
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Actus Reas (cont.) 11 results (showing 5 best matches)
- So for example, I'm an Olympic quality swimmer. I live in an apartment. I walk out of my apartment near the apartment pool, and there, I notice a small child, not my child, but a small child in the pool drowning. And I do nothing. Why do I do nothing? Well, because I'm late to go to a party and I don't wanna waste my time saving this child. Child drowns, dies. I don't care. Maybe I even watched the child die because I like seeing children suffer. Doesn't matter. I'm not guilty of murder. Yes, there was a death of a human being, but there was no conduct on my part that had anything to do with causing that child's death. If I'm gonna be punished here, it has to be for what I did not do, for my failure to act, for my omission. And again, the general rule is, people are punished for their voluntary actions and not for their omissions. So what are those exceptional circumstances in which a person does have a duty to act, and thus may be prosecuted for an omission?
- First, there must be some conduct by the defendant that includes a voluntary act. Or, as you will see, occasionally, just rarely, but occasionally, we can substitute for a voluntary act the claim that the defendant failed to act when she had a duty to act. That is, if you will, element number one that a prosecutor must prove beyond a reasonable doubt, a voluntary act, or in a rare case instead, a failure to act or what we call an omission of a duty to act. The second element is that that voluntary act, or rarely, that omission must cause social harm. There must be social harm element, too. And we're going to talk about those two elements. Third, as I mentioned, there must be mens rea, that is, a morally culpable state of mind. And then we'll see that the fourth element is causation which is broken up into two components, actual cause and proximate cause. So five elements in a crime, in that order. First, a voluntary act, or sometimes omission, social harm, mens rea, actual cause,...And
- Okay. So now let's start looking, as I say, at these five elements, starting with actus reus. Actus reus consists of the actus and the reus. The actus, element number one, is the voluntary act. We don't punish people for their thoughts. We punish people for conduct. But the common law requires more than simply conduct. No person may be convicted of a crime for conduct unless that conduct includes a voluntary act, or, as I mentioned, rarely, a failure to act where there's a duty to act. But for right now, let's focus in on the voluntary act. A common law requires that a defendant's conduct include a voluntary act. And by the way, that principle is codified into the model penal code. And thanks to the model penal code, now, you will find that many state criminal codes, in writing, make that clear, that a person cannot be convicted unless their conduct includes a voluntary act.
- Model Penal Code, Section 2.01, subsection 1 provides, and I quote, "No person may be convicted of a crime unless his conduct includes a voluntary act." So, okay, what is a voluntary act? Well, in common law, a voluntary act, very simply, was a willed, muscular contraction. That's it, a willed, muscular contraction. When you raise your hand, or when you walk, or when you get in your car and turn the key in the ignition, or when you pull the trigger of a gun. These are voluntary acts, a willed, muscular contraction. Our mind sends electrical impulses to our muscles. They send a kind of direction, a command to our muscles, basically saying, "Please do the following. Pull the trigger of the gun." This is all done, of course, in a non-conscious way. But it's a voluntary act, a willed, muscular contraction. We will these acts to occur, and that's all that is required to meet the voluntary act requirement.
- To show you how little that is, if I were to put a gun to your head, and if I were to say to you, "Cross the street or I'll blow your head off," and you cross the street, would we say that your act of crossing the street was voluntary? Well, in terms of what we're talking about now, the voluntary act, element number one, you bet it was a voluntary act. Sure, you were coerced to cross the street because I put a gun to your head, and in that sense, your conduct was involuntary. And we'll see that you may have a defense, a defense to your conduct. But in terms of what we're talking about here, the voluntary act requirement in the criminal law, the first element that the prosecutor must prove beyond a reasonable doubt, your act of walking across the street, in order to save your head from being blown off, was voluntary. Because you or, if you will, your mind send a message to your legs to get across the street. Not because you didn't wanna be across the street, but because you didn't...
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Complicity 25 results (showing 5 best matches)
- So let's talk now about accomplice liability, some initial points. First, there is no such thing as the crime of aiding and abetting. So in other words, you're not guilty of the crime of aiding and abetting a murder. No, there is a crime of murder. What accomplice law does is make the accomplice guilty of the crime of murder, for the crimes that the perpetrator, the primary party committed. The accomplice is not guilty of the crime of aiding and abetting. She is guilty of the actual crime committed, the robbery, the murder, the rape, whatever it is, to which she was an accomplice. Essentially, an accomplice derives, and that's a keyword, derives her liability from the actions of the perpetrator.
- And please note, and this is very, very important, a person may be deemed an accomplice in a crime even if it can be shown that the perpetrator would have committed the crime even without the assistance. In other words, there does not have to be a but-for causal connection between the accomplice's assistance and the perpetrator's completion of the crime. It's enough that the accomplice has helped in some minor even trivial way in the commission of the crime. So whether the person solicits the crime, furnishes a weapon, or in some other way assists even moral encouragement, and even if that crime would have occurred anyway, that individual is an accomplice.
- Okay, so much for accomplice liability. One very last point to learn, and that is the doctrine of conspiracy liability. Now, 99.9% of the time, if a person is a conspirator in a crime, they're also an accomplice and vice versa. But it is possible at times to be one and not the other. Indeed, there is a very famous Supreme Court case involving two men, the Pinkerton brothers. We'll call them A and B. And they agreed they conspired, in other words, to commit certain tax crimes, but one of the brothers, B, drops out of the picture because he went to prison on some unrelated crimes before the tax crimes were committed. While he was in prison, A committed the tax crimes. Now, on those facts, we have a crime of conspiracy between A and B to commit the tax crimes. But it's hard to argue that B in prison assisted in the crime. And indeed, the prosecutor in the case conceded that accomplice liability wouldn't work in that case. So can we convict B who's sitting in prison, can we convict B of...
- Now, the other initial point is that there were some common law terms that you needed to know and really memorize to understand accomplice liability. Those terms have been abolished in virtually every state. But we will see courts using the language anyway. And so it's valuable to have that vocabulary in mind.
- Then you have the accessory before the fact. Basically, the difference between a principal in the second degree and an accessory before the fact, and really the only difference, is that the accessory before the fact wasn't at the scene of the crime. So a person who assists in the crime but does it before the crime is committed is an accessory before the fact. If A gives B a gun to be used the next day in the bank robbery, and A isn't at the bank when it's robbed, A's involvement of giving the gun to B makes A an accessory before the fact.
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Components of a Crime 4 results
- And they add up, if you will... In fact, if you break up the two components into their sub-components, into five elements. And we're gonna be talking about those five elements, in order. And I'm gonna start that list right now with actus reus.
- Basically, a crime is said to have two components: the actus reus, actus, A-C-T-U-S, reus, R-E-U-S. The actus reus of a crime, and a second component, called the mens rea, M-E-N-S, and rea, R-E-A.
- Now, the other part of the crime is the mens rea, or the mental part of the crime. Here, we ask, "with what state of mind did the defendant commit the actus reus?" Now, we're gonna turn to the mens rea shortly. But the point now, is to understand that there are these two basic components of a crime: the actus reus and the mens rea.
- The actus reus... These are Latin terms of course. The actus reus is the external part of the crime, the physical part of the crime. It's what happens in the real world that's wrong, what we don't want to have happen. It's the breaking and entering of the dwelling house of another at night: burglary. It's the killing of another human being: murder. It's the forcible intercourse by a man with a woman, without her consent: rape. These are examples of the actus reus of crimes, the things we don't want to have happen.
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Mens Rea 12 results (showing 5 best matches)
- Okay. So public welfare offenses generally involve malum prohibitum conduct. Second, public welfare offenses usually involve very little penalty for their violation. Often, no imprisonment at all, just a monetary fine, and if there is imprisonment, usually very little. Third, conviction for violation of a public welfare offense doesn't stigmatize the person. We don't think of these people who, say, drive above the speed limit is morally wrongful individuals or even businesses that accidentally mislabeled a drug. We don't think of these people or businesses the way we think about robbers and rapists and murderers. Because of these factors, because we're dealing with malum prohibitum conduct, which carries very minor punishment usually and no stigma attached, many legislatures that have enacted public welfare offenses have chosen to do so and put no mens rea requirement in the definition of the statute, i.e. it is a strict liability crime.
- Well, the general rule is all crimes are supposed to have a mens rea. So the general rule is that the court will infer a mens rea requirement into any crime definition. Even if the crime on its face contains no mens rea element. That's because we consider the requirement of mens rea is so important, so deeply embedded in our criminal law that we don't think we should punish and stigmatize and condemn people and take their liberty away unless they committed the harm with some morally blameworthy state of mind.
- Using the term mens rea in this way, it doesn't matter what particular state of mind the defendant possessed. Did the defendant commit the actus reus intentionally, or negligently, or recklessly? Doesn't matter just as long as they possessed some morally culpable state of mind that we might call the culpability meaning of the term mens rea. Often, however, and more often in modern times, the term mens rea is used to mean that the defendant possessed a particular state of mind and that particular state of mind is the specific state of mind found in the definition of the crime.
- The second type of mens rea, I will call it the elemental meaning of mens rea, elemental because there must be proved the specific or particular mens rea element that is set out in the definition of the crime. Now, to understand these two different definitions and in order to understand a number of the rules to which you will be learning in criminal law and to which you will be returning, let me give you a little bit of a brief history of mens rea, because I think it will help.
- So to be guilty of burglary, in other words, the person who breaks and enters someone else's dwelling house at night must do so with the intention to commit a felony inside. That's the only mens rea that counts. So a person who breaks and enters the dwelling house with a morally blameworthy state of mind, let's say he's breaking into your house in order to appreciate the interior of your house, well, that person has a mens rea in that first general culpability or moral blameworthy sense of mind. After all, he had no permission to enter your home that way. But he doesn't have the mens rea in the particular sense that we're talking about in this example where the statute specifies precisely, specifically, what state of mind must be possessed, namely the intent to commit a felony therein.
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Mistake of Fact 28 results (showing 5 best matches)
- So in our Jack and Jill example, if Jack's belief that Jill was consenting was a reasonable belief, if the jury concluded from the facts of the case that a reasonable person in Jack's situation would have believed that Jill was consenting, then that would be a reasonable mistake and Jack would be acquitted of rape. If the jury concludes however based on all the circumstances that a reasonable person would have understood that "nyet" means no or would have realized she was not consenting by her actions, maybe she's fighting him off, then his mistake of fact would be deemed unreasonable and that would be the mens rea required and he could be convicted of rape.
- So with a specific intent crime, an unreasonable mistake of fact can serve as a defense but with a general intent crime, it cannot. Now, having said all of that, and I'm sure your head is spinning a little right now and I don't blame you, the common law approach to mistakes of fact is complicated because of this distinction between general intent and specific intent. But even if you've learned what I've just told you, sometimes common law courts have held that even a reasonable mistake of fact will not serve as a defense. Now remember, ultimately with a general intent crime, the court is concerned with whether or not a defendant has acted with a morally culpable state of mind. And so it turns out that at common law, sometimes when dealing with a general intent crime, and only when we're talking about a general intent crime, the court applies a doctrine called the moral wrong doctrine.
- So in this case, although Prince reasonably believed that he was taking an 18-year-old away from her parents, and even though that wouldn't be a crime, it is a morally wrongful act according to the court and he knew that he was performing that morally wrongful act and so he assumes the risk and lo and behold, he was mistaken reasonably about her age. Now, perhaps when you look at this case, you can see why the moral wrong doctrine is highly objectionable. After all, even if Prince did do a morally wrongful act by taking what he reasonably believed to be an 18-year-old away from her parents, even if we accept that, the morally wrongful act of taking an 18-year-old away from her parents isn't a crime, yet he's convicted. But why should he be convicted of a crime when he reasonably believed she was of legal age?
- You simply look at the definition of the crime, you look and see what state of mind, what mens rea is definitionally required, and you'll see it right there in the definition of the offense, and then you decide whether the defendant's mistake did or did not negate that particular state of mind. So for example, suppose that Arnold is a hunter in a forest shooting at what he thought was a deer but was actually a human. He kills the human and he's charged with murder. We'll assume for current purposes that murder is defined as purposely killing a human being. Purposely remember means that that's the result you wanted, that it was your conscious objective to kill a human being. Well, in my facts, the answer is no. His conscious objective was to kill a deer. So under the Model Penal Code, he didn't purposely kill a human being and therefore, he's not guilty of murder, if that's how murder is defined.
- Now I wanna talk about a few important mens rea matters that often come up at this particular stage of the analysis and to some extent, they need to be separated from mens rea but they all involve mens rea so it belongs in our discussion here. That involves the doctrine of mistake, more specifically, mistakes of fact and mistakes of law. I'm gonna start with mistakes of fact and I'm gonna start with three simple hypotheticals in which there's a mistake.
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Common Law Murder (cont.) 20 results (showing 5 best matches)
- Another example of the abstract test, a California case in which a man named Henderson falsely imprisoned another individual by pointing a gun at the victim and sort of pushing the victim with that gun as part of the false imprisonment. And the gun accidentally discharged killing the victim and Henderson was charged with felony murder based on the felony of false imprisonment. The question again for the court is false imprisonment and inherently dangerous felony.
- Let me give you some examples. Defendant goes out onto the street and beat somebody with a bat or shoots or wounds that person with a gun and the person dies. And the defendant is charged murder on the basis of felony murder, where the underlying felony being assault with a deadly weapon. Well, in a jurisdiction that applies the independent felony limitation, the defendant could not be convicted of felony murder because the underlying felony, assault with a deadly weapon, isn't truly independent of the homicide. It's part and parcel of the homicide. It's not an independent felony.
- Now, again, at common law, when the felony murder rule was devised, there were only a few felonies. And again, as I mentioned, all of those felonies carry the death penalty. So in a sense, the felony murder rule didn't matter. You rob somebody, get convicted of robbery, you got executed. You rob somebody and somebody dies, you're guilty of robbery and murder, you get executed. Can only be executed once. So whether you're executed for the robbery or you're executed for the murder, you're executed.
- The felony murder rule didn't really add much, but today, we don't execute for robbery or theft or for any of the common law felonies. And today, there aren't just a handful of felonies. There are dozens of felonies. And so the felony murder rule of today has a much greater potential impact than it did at common law. And because of this, many courts quite simply don't like the felony murder rule, even though the legislatures have enacted the felony murder rule.
- Well, let's start with an example loosely based on a real case. Defendant caused the death of a child who had cancer and who was getting traditional medical care for her cancer, but the defendant convinced the parents to give up traditional medical care by falsely claiming to the parents that he had a wonder cure for the child that would avoid the child needing to go through the painful traditional treatments. Well, he didn't have such a cure and they knew he didn't. Basically, he was cruelly and fraudulently taking money from the parents.
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Actus Reas 30 results (showing 5 best matches)
- So, okay, those then are the five separate exceptions to the general rule that there's no responsibility for an omission. First, if there is a statutory duty to act. Second, some important status relationship. Third, a contractual duty to act. Fourth, cases where a person creates a risk of harm to the victim by positive action and then fails to deal with that risk that they've created. And finally, when a person begins to act, then stops, and because of stopping has enhanced the risk to the individual. In those cases, if there's a duty to act, if in other words, the case falls into one of those exceptions, then that omission serves as a substitute for a voluntary act, and now the person might be subject to conviction of a crime, just as much as if he had voluntarily acted. But I want to stress, even when there is a duty to act, all that's happened is that the first element of the crime has been satisfied. We still have to determine whether that voluntary act or omission actually and...
- Now, suppose you had a different crime. For example, the crime of larceny, theft. As you'll later see, larceny is defined as the taking and carrying away of the personal property of another, which occurs with a particular mens rea that we'll discuss later. For now, we're talking about the actus reus, so your job would be to determine whether the defendant took and carried away personal property that belonged to another. If the taking and carrying away of the personal property of another occurred, and if that conduct included a voluntary act, well, you've proven the actus reus of larceny. So, again, the first thing you look at in any criminal case is whether the defendant committed the actus reus or external part of the crime. And this, in turn, requires proof that the defendant's conduct included a voluntary act or, rarely, an omission. And second, that that conduct or omission resulted in the social harm set out in the definition of the crime.
- The common law requires that a defendant's conduct include a voluntary act. And by the way, that principle is codified into the Model Penal Code. And thanks to the Model Penal Code, now, you will find that many state criminal codes in writing make that clear, that a person cannot be convicted unless their conduct includes a voluntary act. Model Penal Code Section 2.01 subsection 1 provides, and I quote, "No person may be convicted of a crime unless his conduct includes a voluntary act."
- So for example, I'm an Olympic quality swimmer. I live in an apartment. I walk out of my apartment near the apartment pool, and there I notice a small child. Not my child, but a small child in the pool drowning. And I do nothing. Why do I do nothing? Well, because I'm late to go to a party. And I don't want to waste my time saving this child. The child drowns, dies. I don't care. Maybe I even watched the child die because I like seeing children suffer. It doesn't matter. I'm not guilty of murder. Yes, there was a death of a human being, but there was no conduct on my part that had anything to do with causing that child's death. If I'm going to be punished here, it has to be for what I did not do, for my failure to act, for my omission. And, again, the general rule is people are punished for their voluntary actions and not for their omissions.
- But suppose that someone else on the beach saw you coming to the aid of the drowner and therefore, didn't call 911 just as they were about to do so, or suppose the person who's drowning notices you coming to his aid and now, sort of, becomes more passive and isn't fighting now to stay above water. Now your initial act, followed by your omission, has made matters worse for the drowner than if you had never started to help in the first place. So, now, although you had no duty to come to his aid in the first place, now, you do have such a duty to continue to aid.
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False Pretenses 2 results
- Suppose, however, the check bounces. And suppose further that Earl knew all along that the check was bogus. Well, that would be obtaining title to property by false pretenses. And so, it would not be larceny, and it wouldn't be embezzlement, it would be false pretenses.
- Finally, a third theft offense. I will spend very little time on it. It's a statutory offense. It's the crime of false pretenses. The primary difference between this crime and larceny is that, with false pretenses, a person trespassorally obtains title to the property.
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Attempt 22 results (showing 5 best matches)
- In all of these points there are points along the line. And the question is at which point do we say that the person has crossed the line from, as the common law likes to call it, crosses the line from preparation to perpetration? And thus makes it an attempt. And unfortunately, the answer is to where that line is? Well, it depends. Courts have never come up with a clear, everybody agreed upon line as to where and when a defendant's conduct has proceeded far enough to constitute an attempt. Yes, what the courts will do is say that the line we're drawing is between preparation and perpetration, nice sounding, but completely useless as a standard.
- So tests that look at the proximity to completion, make it harder to find an attempt, than tests that look more at what the person has already done. And as I said, courts and scholars have not come up with an agreed upon line. So I'm going to go through some of the tests. First, there is the physical proximity test, which means simply that a person can't be guilty of an attempt unless the actor has the apparent power to complete the crime immediately, has to be therefore very close to committing the crime. For example, if the defendant arrives at the scene of a would-be homicide with a loaded gun, he's still not guilty of the attempt, unless and until the victim shows up. Because until that point, it's impossible for the actor to complete the crime immediately. As soon as the victim arrives, however, we would have an attempt under this test. But notice, under this test, if the victim never comes home, maybe the victim is out of town, then it would not constitute an attempted murder,...
- Okay, so we've talked about the mens rea of attempt and we've talked about the various tests that constitute the actus reus of attempt, both at common law and the model penal code. Now we need to talk about a couple of defenses, defenses to the crime of attempt. Now, first, all of the regular defenses, self-defense, defense of others, insanity, all of the other defenses can apply to the crime of attempt. But there are a couple of special defenses that apply only, only to inchoate defenses. And there are two potential defenses that you need to be aware of. One of these defenses is the so-called defense of impossibility. The defense of impossibility is a common law defense, and one that more and more states, along with the model penal code have abolished, but it did exist at common law. Some states still apply it so we need to talk about it.
- All right, now that you have an understanding of the distinction between factual and legal impossibility, does the distinction really say anything at all about whether the person is more or less dangerous, or more or less culpable? In other words, we give a defense to people in the case of legal impossibility, but not in the case of factual. Why? Aren't they both equally dangerous, equally culpable? More and more courts, and in fact, now, most courts are of the view that this distinction between factual and legal impossibility is a bad distinction. That both categories of people are equally culpable, equally dangerous. And therefore, many states have followed the lead of the model penal code, which is to abolish the defense of legal impossibility, which means that the issue simply drops out in those jurisdictions.
- Now, there's another potential defense that comes into play in the crime of attempt. And that's the defense of abandonment, or what the model penal code calls renunciation of criminal purpose. Now, at common law, there was no such defense, period. The defense however, applies under the model penal code. So let's talk about it as a model penal code defense. The defense is rather simple. It basically says, "If I crossed the line of attempt, that is to say I've gone far enough for the law to say that I am guilty of an attempt, but I haven't yet been arrested. And I then voluntarily, totally abandoned my criminal attempt. If I turn my back, if you will, on the crime, and completely renounce my criminal purpose, and if I did that voluntarily, not because the police were coming, it's a true, genuine heart and soul renunciation. Then, under the model penal code, I would get the defense and I would not be guilty of attempt." In common law, hey, the minute I crossed that line of attempt, you...
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Conspiracy 7 results (showing 5 best matches)
- Similarly, suppose A and B, agree to murder C, but it later turns out that B was legally insane, and therefore never had the capacity to form the intent to commit the crime because of that mental illness. Well, B will get off because of insanity. And lo and behold, at common law, A will be acquitted of conspiracy, because again, we do not have two persons with the requisite intent. That's the plurality requirement at common law. And, again, the Model Penal Code has abolished the plurality requirement. You could convict that single person, in my hypotheticals, even though the other one got off.
- For example, adultery. It's still a crime in a few states but use it as an example. Adultery takes two willing persons to commit it, right? So Wharton's Rule would generally apply if A, male, and B, a female, agree to commit adultery with each other, well, then, Wharton's Rule would apply and you can't have a conspiracy crime conviction. But suppose A, a male, agrees with B, another male, for B to have intercourse with a married person, C, and further assume that C isn't even involved in this agreement, then, C is not a part of the conspiracy. Now, we have two persons, A and B. But they will be guilty of conspiracy to commit adultery. Wharton's Rule does not apply because A and B are not committing adultery with each other. So Wharton's Rule falls out and we can have conspiracy.
- Now, at common law, there was what was once called a plurality requirement. Remember, the definition of conspiracy is two or more persons who agree to commit a crime. A plurality requirement means that there must be two or more persons, both of whom have the requisite mens rea. For example, if A and B agree to rob a bank, but B, in fact, is an undercover police officer who only pretends to agree to the bank robbery in order to trap A. Well, then there is no common law conspiracy because again, there must be two or more people with the intention that the crime be committed. And since the undercover officer didn't have that intent, we don't have two people with a requisite mens rea. And here's the point. That means that not only is B our undercover officer, of course, not guilty of conspiracy, but A cannot be convicted of conspiracy, because you can't conspire with yourself.
- Now, suppose Harold solicits Linda to commit a crime of murder, let's say. And Linda nods her head, yes, or says yes in some other way. In other words manifesting in agreement that she will commit the crime that I have solicited, or that Harold has solicited. Well, now we have another crime. We have now the crime of conspiracy. At common law, a conspiracy is an agreement between two or more people to commit an unlawful act. Now, that agreement again requires intention, a specific intention on the part of both people to commit the crime. But assuming you have two persons, both of whom have the specific intent to have the crime committed, then the moment they reach the agreement, you have the crime of conspiracy, because you have a meeting of the minds and that's a conspiracy.
- But following that reasoning, Wharton's Rule does not apply. In other words, a conspiracy conviction would be permitted if there is an extra person involved in the crime, that is, if there's at least one person more than is required under the definition of the crime to commit it. So take our example of the sale of marijuana. If there is a conspiracy of three people, A and B conspired to sell the marijuana to C, for example, now, there's an extra person. Now, we have the extra danger that supposedly is involved with conspiracy. And now all three of them can be convicted of the crime of conspiracy to sell marijuana. It also follows that Wharton's Rule would not apply if the two people involved in the conspiracy are not the two people assumed in the definition of the crime to be the people we're talking about.
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Mistake of Law 15 results (showing 5 best matches)
- In other words, pure and simple utilitarianism. The law is going to send a very strong threat to all of us that we better learn the law or else the law is saying if we don't learn the law correctly, perfectly, we act at our own risk. If we don't learn the law correctly and even if our misunderstanding is a reasonable one, we will not be able to come into court and successfully claim a defense because if we allow the defense, Holmes believes, it would make it easier for people to claim ignorance, easier to get off with fraudulent claims of ignorance, and also create a disincentive, he thinks, to learn the law.
- The statute require that a person willfully, that was the mens rea term, willfully violate the income tax law requiring him to file and pay income taxes. But it happens that the term willful under the federal tax law means and I quote, "A voluntary and intentional violation of a known legal duty." Listen to that. "A voluntary and intentional violation of a known legal duty." That's what the terms willful means in the statute for which he was charged. So the essential element of the crime for which Mr. Cheek was prosecuted was that he voluntarily and intentionally violated a known legal duty to pay income taxes on his American Airlines wages. Well, the U.S. Supreme Court and Cheek case held that the defendant, Mr. Cheek, was entitled to an instruction to the jury that would tell the jury that if they believed his claim that he truly didn't know that he had a legal duty to file income tax returns and pay taxes on his wages, an instruction to tell the jury that that if he really...
- If you look at the Model Penal Code, Model Penal Code Section 2.02, Subsection 9, 202 Subsection 9, basically provides that ordinarily, knowledge or understanding of the law isn't a defense, is in other words, it's not an element of the crime. So the Model Penal Code starts in the same place as the common law. Mistake or ignorance of law doesn't get you off. But Model Penal Code Section 2.04 provides two bases for exculpation. Subsection 1 agrees with the common law that if the statute in question does require knowledge or understanding of some law and if the defendant's mistake of law negates that level of knowledge, the defendant has a valid defense as in the Cheek case. And then Subsection 3 of Section 204 applies the same reasonable reliance on an official interpretation of the law rule that I already explained. So we've talked about two basic components of a crime, actus rea and mens rea. We've talked about a whole bunch of sub issues about mens rea including mistake of fact
- It's seen in the case of People versus Marerro, M-A-R-E-R-R-O, involved a corrections officer. In other words, an officer who works in prisons and in his case, his name was Marerro. He was arrested for being in a New York club, a kind of a bar with an unlicensed 38 caliber automatic pistol in his possession and there was a New York law making that a crime. But the New York law had an exemption for peace officers. Peace officers could be in possession of such a weapon and under New York law, the definition of a peace officer who got this exemption was and I'll quote literally, verbatim, "Any correction officer of any state prison or of any penal correctional institution." Well, Marerro was working in a federal prison. So he believed, right? Reasonably perhaps that he was a peace officer within the meaning of the New York law, that is he was a correction officer and again I'll quote, "Of any penal correctional institution." Isn't a federal prison fall within that category? Well, since...
- So even an unreasonable mistake regarding his legal duties would get him off because it cannot be said then that he intentionally violated a known legal duty. Even if the jury says, "Mr. Cheek, you're an idiot. You should have known that you had a duty to pay income taxes on your wages." Well, the answer is that maybe he's an idiot maybe he should have known, but saying that he should have known is not the same as saying that he didn't know. And so in this case, even an unreasonable mistake of law would serve as a defense and again the reason for this is because the statute that he was being prosecuted under, by definition required knowledge of his legal duty to file income tax forms and pay taxes on his wages and because he did not know legally that he had a duty to do that because he thought legally he had no wages that would get him off. Now again, the jury doesn't have to believe his claim, they can say, "You knew full well that wages are income and therefore you have to pay...
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Mistake of Fact (cont.) 14 results (showing 5 best matches)
- Now, I want to talk about a few important mens rea matters that often come up at this particular stage of the analysis. And to some extent, they need to be separated from mens rea but they all involve mens rea. So, it belongs in our discussion here. And that involves the doctrine of mistake. More specifically, mistakes of fact and mistakes of law. I'm going to start with mistakes of fact. And I'm going to start with three simple hypotheticals in which there's a mistake. Hypo one, John is driving his car, driving 70 miles an hour in a 65-mile zone, and is ticketed for speeding. It turns out that John was speeding, but he thought he was driving 65, which would be lawful, but his speedometer was faulty. I think you can see where I'm going. If John wants to fight the speeding ticket, he's gonna have to say, in essence, yes, I sped, but I had no way of knowing I was speeding because of a faulty speedometer that I had no way of knowing was faulty. Put differently, John is claiming a...
- In contrast, an unreasonable mistake of fact, that is a mistake that a reasonable person would not make is a morally blameworthy mistake. And because it's a culpable mistake, the defendant has a mens rea, and therefore, the defendant may be convicted of a general intent crime because the unreasonableness of the mistake constitutes the mens rea. So, with a general intent crime at common law, a reasonable mistake of fact ordinarily is a defense, an unreasonable mistake is not a defense. So, when our Jack and Jill example, if Jack's belief that Jill was consenting was a reasonable belief, if the jury concluded from the facts of the case that a reasonable person in Jack's situation would have believed that Jill was consenting, then that would be a reasonable mistake and Jack would be acquitted of rape. If the jury concludes, however, based on all the circumstances that a reasonable person would have understood that nyet means no, or would have realized she was not consenting by her...
- Now, these mistakes of fact all raise a similar question. And that question is, when does a mistake of fact negate the existence of the required mens rea? That is, when does the mistake convince us that the defendant is not culpable even though he or she has committed the actus reus of the crime? When does a mistake of fact get the defendant off? We're going to discuss the common law and the Model Penal Code answers.
- Let's now consider Alice and that 14-karat gold ring. Alice, you remember was charged with larceny. Well, I'm going to tell you again what the common law definition of larceny is. We'll be getting into it in greater detail later. At common law, it is defined as the trespassory, or if you will, non-consensual, taking and carrying away of the personal property of another with the intent to permanently deprive that person of the property. So, again, breaking down the offense, the actus reus of larceny is the non-consensual taking and carrying away of the personal property of another. And the mens rea is the intent to steal the property, that is to permanently deprive the owner of the property.
- Second hypo, Alice observes a lovely 14-karat gold ring lying on the ground. She genuinely believes, really, genuinely believes that somebody meant to throw it out. That person who had had it no longer wanted it, so she takes the ring as her own. Well, of course, the ring hadn't been abandoned by the owner, it had been lost. And Alice is now charged with theft of the ring. Alice will claim mistake of fact, she mistakenly believed that the ring had been abandoned, and therefore, it didn't belong to anyone else. So, she claims that because of her mistake, she shouldn't be convicted of larceny. Okay. We'll come back to that. We'll call this the Alice and the ring hypo.
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Rape 14 results (showing 5 best matches)
- All right, it's time to move to a different crime. And we're going to talk now about the crime of rape. At original common law, rape was defined as sexual intercourse by a male with a female not his wife, without her consent. So notice, rape could only be committed by a male, the victim had to be a female. So the crime was very gender-specific. And a husband could not legally rape his wife. The female had to be "not his wife." And the only form of sexual misconduct that constituted rape was sexual intercourse, which meant at common law vaginal penetration. Oral sex, anal sex, those constituted other crimes but not rape. And to remind you, rape at common law was a general intent crime. Now, this is obviously a controversial area. Because the common law definition of rape when we look at it in 21st century terms is in so many ways wrong and unjust to women. And consequently, this crime is changing quickly.
- The law of rape that I taught when I first began teaching criminal law isn't even close to the law of rape today. Indeed, more and more states have even changed the name of the crime from rape to something else, such as sexual assault. And today, more and more states have made the crime gender-neutral. The victim can be a male or a female. The perpetrator can be a male or a female. And more and more states now say that a person can be convicted of rape of one's spouse. Key point here, the law is changing. Modern statutes, truly modern statutes do not look even a little like old statutes or the common law version of the crime. And it's clear that the process of change in this area is still undergoing change. We aren't finished yet.
- So, in short, if the female resisted the male to the utmost and if the male overcame that resistance forcibly, that was forcible rape. Notice it might not have started as forcible rape, but because she fought him off and because he overcame her resistance, then it became forcible rape. Notice how dangerous that rule is for women. So, again, let's go through this. Basically, forcible rape, the following had to be proven at common law. If the male used or threatened to use deadly force or force likely to cause serious injury, then the female was not required to resist. If the male used or threatened that level of force and thereby had nonconsensual intercourse with this female not his wife, then that was forcible rape. But if the male used what might be termed moderate force, force not likely to cause serious injury, nor did he even threaten serious force, then the common law required the female to resist. And if she resisted and the man stopped, well, then, of course, there was no...and
- Now, one other point. You'll notice I've been talking about the permission being freely given. So obviously there will be an issue there. What constitutes freely given permission? New Jersey has an answer to that question. So we don't have an answer at least yet as to what pressures might render permission non-voluntary. What if a man and a woman are living together? They're not married. And they're living in the man's home. He's taken this woman in. Maybe she's a single mother with a couple of kids. He's taking her in, and they're living their life together and having sexual intercourse. And at some point, let's assume, the male says to the female, "I'm not getting enough sex from you. I want more sex. And if you...if you won't do it, I'm going to send you and your kids out of the house. I mean, it's my house. We're not married. I'm going to kick you out." And so now, let's assume, the woman not wanting to be back out on the street, worried that you may not be able to find a job
- In the second example, the woman knew full well she was consenting to intercourse. The fraud didn't hide that fact. She was fraudulently induced to have intercourse by his false claims of being a movie director. At the common law, therefore, since she knew she was agreeing to intercourse, the consent was deemed valid. Why this distinction between fraud in the factum and fraud in the inducement? Well, there certainly is a difference, isn't there, between not consenting to intercourse, the first case, and in the second case, consenting to intercourse due to fraud. They are different. And the court worried that if fraud in the inducement were to become rape under the law, where do we draw the line? The man says he's rich, and he isn't. And the woman has intercourse with him because he's rich. Should that be rape? What if the man says, "I love you, and I want to marry you," but he doesn't really mean it? That's fraud in the inducement to get intercourse? Should that be rape? Where do...
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Criminal Law vs. Civil Law 10 results (showing 5 best matches)
- The first tool, the criminal law versus civil law. The criminal law is unique. As a first-year student, you're studying other courses. I assume courses like torts and contracts, maybe civil procedure and property. And one of the questions that should come to mind as you start criminal law and as you compare it to the other subjects you're learning is how does the criminal law as a subject differ from all the other areas of the law? Because I submit to you that it is very different or at least should be treated as very different from all the other subjects you are learning. It stands alone.
- This is condemnation, stigmatization of the individual. And as you'll see as we proceed, the rules of criminal law take into consideration the fact that a finding of guilty is ordinarily a condemnatory statement. And the rules of the criminal law that you study are mostly, not entirely, but mostly consistent with this attitude. So never lose sight of this fact, never lose sight of how different the criminal law is from torts and contracts and all the other civil courses. Think of criminal law as a morality play.
- Okay. Now I wanna talk about the tools, I like to call them the tools of the criminal law. What am I getting at? Well, I mean, if you were building a house you'd need tools, right? And if you didn't know how to use the tools, they would be explained to you and then you'd start building the house.
- But, you know, if you think about it, that doesn't really get at the core difference between the criminal law and those other subjects, and it's the core difference that I want to focus on right now. If you think about it, if you were a poor person or even a middle-class person and you were given a choice of say $20,000 civil judgment in a torts case that you personally would have to pay, no insurance will help, or on the other hand, as an alternative you'll be permitted to spend 2 days in jail.
- In fact, look at the names of the cases you are studying. I mean, you're not going to see Jones versus Smith or Smith versus General Motors, it's the people of the state of, say, California or Ohio or New York or whatever versus Jones, or it's the United States of America versus Smith. In other words, it's the whole society that brings a criminal action against that individual. And if there is a finding of guilt, it is the whole society that is ultimately condemning and denouncing that person and that person's actions. Now that's heavy-duty stuff.
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Principle of Legality 4 results
- So, the principle of legality teaches that there must not only be an offense in existence prior to the conduct, but the statute must be written in sufficiently clear manner that a reasonable law-abiding person can figure out what it is that they're not supposed to do. The statute, in other words, must be sufficiently clear that a person knows that they're close to the line of illegality. It's unfair to punish a person who can't reasonably be expected to understand the law because it's vague. Otherwise, that makes a law a trap and it shouldn't be a trap. And even worse, vague laws can be, and historically have been, used by law enforcement to discriminate against people because of their race, gender, religion, sexual orientation, or even because they have long hair, or dress in a way that is disliked by law enforcement. They can do that if a law is vague. They can pick on people they don't like. It's much harder to discriminate if a statute in question is clear. So, to summarize this...
- We may not like the person, the person may be dangerous, but we don't punish a person unless there is a law on the books that specifically prohibits the conduct in question. And, of course, it has to be on the books before the person committed the crime. Now, a corollary of the principle of legality is that criminal statutes, yes, we've got them on the books, but they shouldn't be vague, that is, it won't do simply to have an offense that reads, for example, "It's a felony to do a bad act." Or consider the story I read recently in the paper. There was a legislator that wanted to punish cheerleaders, yeah, cheerleaders who, and this was the statute that he wanted enacted, dance in a sexually suggestive way. "Well, what does that mean, sexually suggestive way?" The legislator was asked and he said, and I quote, "I know it when I see it." Well, sorry. That's vague. How can a law-abiding cheerleader know how far her dancing can go before it crosses the line from lawful dancing to...
- Put simply, unless conduct is defined as a crime, unless it is announced to the community in advance that specific conduct is a criminal offense, a person may not be punished for committing the act in question. That, at its core, is the principle of legality. And in the United States of America in the 20th and 21st centuries, this has meant that unless a legislature makes a specific conduct into a crime, has defined it as a crime, put it in writing on the books, unless that happens, it is impermissible to punish a person for committing the act in question. Think back to the Keeler case that I talked about very briefly, a few moments earlier. You will remember that that man beat his wife in the abdomen for the express purpose of killing the fetus. Now, this is a person who's committed a terribly immoral act, a person who at some level deserves punishment, a person who is, in some real sense, dangerous, but Keeler couldn't be punished simply because he was immoral or dangerous. There...
- ...way of putting it is the rule of law. One famous scholar said that this principle, the principle of legality, is the first principle of American criminal law. In other words, it is the most basic principle we have. In some sense, the principle of legality overrides everything else, or at least it is supposed to. The principle of legality gets at this basic point. We don't punish a person because they're bad, or because they're immoral, or because they're dangerous. We don't even punish a person because that person has committed a bad, or dangerous, or immoral, or harmful act. We only punish a person if that person is bad, or dangerous, or immoral, has committed a crime that is on the books, or as the Latin phrase is translated, there is no crime without law, there is no punishment without law. That's the basic rule of law, something we all take for granted in our country. It isn't so much present in some other countries. And frankly, the rule of law has been attacked in this...
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Inchoate Offenses 5 results
- All right, we have another category of crimes that you need to be aware of. They are called inchoate, I-N-C-H-O-A-T-E, inchoate crimes. These are incomplete offenses, or unsuccessful offenses. And there are three traditional crimes that fall into this category: the crimes of attempt, solicitation, and conspiracy. So, if I try to murder somebody and fail, perhaps I wound the person but I don't kill the victim, I'm not guilty of murder, of course. I am guilty instead of attempted murder, an inchoate crime. Or, it may be attempt if I simply point the gun at the victim and the police arrest me before I could pull the trigger.
- Also, at least if we believe in retributive theories of free will, do we wanna give people some chance to change their mind on their own? I mean, many people, most people perhaps, have had criminal thoughts in their life, and maybe even some people begin ever so slightly towards committing the crime. And then they say, "Whoa, what was I thinking?" And they fully abandon their criminal conduct. But if you arrest the person very, very early in the process, you might not only be arresting an innocent person, but you might be arresting a person with a guilty state of mind but one that was going to change his mind anyway.
- Now, once you start thinking about this situation, you're going to see that there are some big policy issues. On the one hand, we want to give police the opportunity to arrest people, because if we wait too long, something terrible will occur. We obviously don't want that to happen. But there's another side to this discussion. If we let the police step in too early, we run certain other risks. First, we may be allowing the police to arrest a person who's really innocent, somebody who really intended to commit no crime at all but just seems to be acting suspiciously. Maybe Alex is following Carla down the street, kind of close. Well, is Alex a threat to Carla? Is he gonna rob her or rape her? We don't know. Do we want the police to be able to jump in and take Alex off the street? Maybe or maybe not, as Alex may be guilty of nothing other than looking suspicious and no more. So we do have to be concerned about the rights of innocent people.
- So, we have these conflicting concerns, and you can see it in the law.
- Now, as a practical matter, we have inchoate offenses for law enforcement purposes. You want to give the police an opportunity to stop a crime before it happens. I mean, imagine a police officer sees somebody hiding behind a bush, gun pointed at another person, and imagine the police officer having to wait until the trigger was pulled, because if he didn't, well, maybe there was no crime. So we had to create a crime to allow the police to prevent the commission of the crime from ever occurring.
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Burden of Proof 4 results
- Okay. So, let's review these introductory points, these tools that I've been giving you. We discussed how the criminal law differs from the civil law in that a criminal conviction involves moral condemnation of the wrongdoer. We also saw that there are theories of punishment that you need to be sensitive to, retribution and utilitarianism. And we've seen that there is this principle of legality. No punishment unless there's a crime on the books, and that statute must be reasonably clear, not vague. And finally, keep in mind the burden of proof rules that I just mentioned. Now, you've got the tools. We can begin, if you will, to build the structure that we call the criminal law.
- Our final tool for understanding the criminal law relates to burdens of proof. You'll remember that the first basic point on this audio was that the criminal law is an expression of society's moral condemnation of the offender. When we condemn, we stigmatize. When we take back what is most precious from that person, namely her life and/or her liberty and her good name, we want to be very, very certain that we've done the right thing in condemning that person. So, in our country, we say that the government must prove the defendant's guilt in a criminal case beyond any reasonable doubt. What do we mean by this? We mean that the prosecutor must prove every element of a crime being charged beyond a reasonable doubt. And by reasonable doubt, I mean that the jury must have an abiding conviction of the defendant's guilt. Their belief in the guilt should not waiver. It must be an abiding conviction.
- Now, not only is this a basic principle of Anglo-American common law, it is a constitutional requirement. The Supreme Court has specifically stated in a case called In re Winship that the due process clause, that is the requirement in the constitution that no person shall be deprived of life, liberty, or property without due process of law requires that the prosecutor prove beyond a reasonable doubt that, and I'm now quoting from Winship, "Must prove beyond a reasonable doubt every fact necessary to constitute the crime charged." Prove every fact necessary to constitute the crime charged.
- Now, later Supreme Court cases have held that when the Winship Court said those words, that that meant every element of a crime must be proven beyond a reasonable doubt. In other words, when you look at the definition of a crime, the prosecutor must prove every component of the crime in the definition, must prove every component of that crime beyond a reasonable doubt. So, as we discuss and as your professor discusses the elements of a crime, keep in mind that the prosecutor must prove these elements, all of them beyond a reasonable doubt. In contrast, the prosecutor is not constitutionally required to disprove defenses to crimes. It is constitutional for the legislature to put the burden of proof as to defenses on the defendant if the legislature wants, but as to the basic ingredients of the crime, the elements of the crime, the burden to prove this is on the prosecutor on the government beyond a reasonable doubt always.
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Defense of Third Persons 3 results
- The second justification defense that we're gonna talk about and it will be very brief, is the defense of third parties, or sometimes it's called, "The defense of others." This defense provides, "That a person may use force, including deadly force, upon an aggressor, when and to the extent that the person who she is aiding would have a right of self-defense." For example, Albert is walking down the street, he observes Carla pointing a gun at Bob. Bob's in jeopardy. Under this new defense that we're talking about, defense of a third person or defense of others, Albert may defend Bob from aggressor Carla to the same extent that Bob would legally be permitted to defend himself. So, for example, if Bob is unarmed and has no way of protecting himself from Carla, Albert may very well come to his aid, and use deadly force against Carla to protect Bob.
- Now, that's a fairly straightforward fact pattern. There's really only one wrinkle in the analysis when you're dealing with this defense of others' justification, and courts are split on the wrinkle. And the wrinkle is this, suppose in my hypothetical, it turns out that Carla is not an aggressor, but an undercover police officer lawfully attempting to arrest Bob, and that's why Carla has a gun out pointed at Bob, she's arresting him for some violent felony. Now assume Albert is unaware of this, as far as Albert is concerned, Carla is the bad person, an aggressor. Albert doesn't know that she's an undercover police officer. Bob, of course, in these fact patterns has no right of self-defense, because Carla's threatening lawful force by pointing the gun at him. But what now about Albert? What if Albert's error was a reasonable one? In other words, Albert reasonably believed that Carla was an aggressor even though that belief was wrong. Does Albert still get the right, the justification...
- Most courts today including the Model Penal Code, favor the idea of protecting good Samaritans like Albert. So, most courts today hold that a person like Albert continues to get the defense as long as Albert reasonably believes, albeit incorrectly, that Carla was the aggressor and therefore reasonably believed, although incorrectly, that Bob had a right of self-defense. Some courts, a minority, however, worry that good Samaritans may in fact end up as bad intermeddlers, people who get involved in things they don't fully understand, as in our case, and make things worse. So, a minority of jurisdictions hold that a third party such as Albert, will not be entitled to the defense, even though Albert reasonably believed that Bob was under attack from Carla. The issue will be instead, in a minority of jurisdictions, whether Bob in fact, in fact, was being threatened unlawfully by Carla, and in our hypothetical, Bob had no right of self-defense, and even though Albert reasonably believed...
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Introduction to Criminal Law 6 results (showing 5 best matches)
- Why do I say that? I say that because we're dealing with crime. We're dealing with issues that concern us as human beings and not just as lawyers. I'm sure you watch many lawyer shows on television. And, if they, if you do, they involve criminal law because this is the issue that people care about the most.
- And what about responsibility? Personal responsibility? Societal responsibility? These are some of the questions that come up, directly or indirectly, in a criminal law class. These are the kinds of big questions that not just lawyers, but theologians, philosophers, scientists, and just regular people have thought about for centuries.
- Let me provide a few brief, sort of, introductory thoughts about the subject that you're taking, and that I'm discussing. Criminal law is really, in many ways, the most important course in criminal procedure, the most important courses you take in law school.
- Beyond that, in this course, in criminal law, we're gonna be talking about some really important issues, either directly or at least it will be in the back of the issues and maybe in the back of your mind.
- For example, do we have free will? Now, why would that be a question in a criminal law class? Well, if we're gonna punish people, shouldn't we feel that they had a choice not to violate the law? What if, in fact, what if people's conduct is largely determined by their genetics and their environment? Can we still justify punishing them?
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Embezzlement 4 results
- Second example. Bob gives the money to Carla, and Carla puts the money in the bank drawer at her teller station. Carla puts it there for just a moment, until Bob leaves, and then she pulls it back out and sticks it in her pocket. Now what? Well, this is a close and difficult case. It may still be embezzlement, but here's the problem. The problem is that, when she put the money into the bank drawer, you might say that now possession of the money, which went first from Bob to Carla, has now gone from Carla to the bank because the drawer belongs to the bank, not her. So, it then follows from this logic, that when she takes the money back out, she has wrongfully taken possession of the cash from the bank, her employer. So, that might make it larceny, not embezzlement.
- For example, think back to the last hypothetical with Jill and Jack. Jill obtained consent to keep Jack's car for a day. She intended to return it, and then changes her mind. It wasn't larceny because the original taking was consensual. But isn't Jill deserving of being treated as a criminal? Well, a couple of hundred years ago, England created a new statutory crime, it's not a common-law crime, a statutory crime, embezzlement, to deal with this kind of situation. Embezzlement is also a statutory crime in this country. And so, because it's statutory, not common law, you need to look at the statute itself because it may vary depending upon the particular embezzlement statute. But, generally speaking, embezzlement deals with a situation where a person receives lawful, not trespassory, possession of property, but then converts the property to their own use. Thus, because the taking was lawful, there's no larceny, but she may now be guilty of embezzlement.
- Let me give you another example. I ask you to take possession of my property and hold it for me while I'm out of town. Well, you have lawful possession because I entrusted you with my property. Or, when you get on the airplane, the airplane has lawful temporary possession of your luggage. But if the person entrusted with that property later decides to keep it and thus convert it to their own use, that makes it embezzlement. Typically, the embezzlement statutes involve obtaining lawful possession by entrustment, followed by unlawful conversion of the property by the person to whom it was entrusted.
- Let's look at how this might work. Let's think back to the pre-technology days in banks. Now let's assume that Bob brings $50 to the bank to deposit in his own account and hands Carla, the teller, his $50, saying, in essence, "Please put the money in my bank account." Now, Bob, in my example, has transferred possession of the $50 to Carla. She has lawful possession. Assume now that Carla decides, after she gets the money, to pocket it. Well, now she would be guilty of embezzlement. She obtained lawful possession of Bob's property, it was entrusted to her for a purpose, but she converted it to her own use. That's embezzlement.
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Criminal Solicitation 2 results
- Now I wanna talk about another inchoate crime, one that your class may not spend as much time on, if at all, and it's the crime of solicitation. If a person requests or encourages another to commit a crime, with the intention that the other person commit the crime... It's not a joke, in other words. You've asked that person to commit the crime. Then the person who made that request is guilty of the crime of solicitation and is guilty of the crime of solicitation the moment the request is made.
- If Harold goes to Linda and says, "Linda, I'll pay you $1 million to kill Jones," the moment Harold utters those words, assuming that he means it, Harold has committed the crime of solicitation. Before Linda does anything, before she says "yes" or says "no," Harold is guilty of solicitation. And just to be clear, Harold didn't have to offer money. Just asking somebody else to commit a crime constitutes the crime of solicitation.
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Defenses 3 results
- Okay, it's time now to talk about defenses. Basically, there are two categories of defenses. There are other categories, but only two categories that really matter as we discuss criminal law. And those two categories are justification defenses and excuse defenses. A justification defense is a defense that says basically that the defendant, although the defendant has met all of the elements of the crime, that the defendant ultimately did the right thing or, at least, did nothing wrong in causing the outcome.
- An excuse defense, in contrast, doesn't look at the act, but looks at the actor, the defendant, and says that the actor, the defendant did something wrong, but still that actor should not be blamed for having caused the harm because of some excusing condition.
- Now, we're gonna start our discussion of defenses, and I would recommend on an exam if there are different defenses to discuss that you start with justification defenses.
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- Publication Date: April 5th, 2021
- Subject: Criminal Law
- Series: Sum and Substance Audio
- Type: Audio Lectures
- Description: This audio lecture overviews the sources and nature of criminal law. Examines the theories of punishment, actus reus, mens rea, mistake of fact, and actual and proximate causation. Also addresses all of the major defenses and the concepts of inchoate and accessory liability. The Sum & Substance Audio Series allows you to assimilate the essentials of the course at your convenience - listen while working, commuting, exercising or just relaxing. The information and ideas you struggled with previously are now brought to life simply and succinctly. The audio lecture provides Quick Reference Indexing, allowing you to quickly locate every topic in the entire recording. Also provided are exam tips to maximize your performance and Lifetime guarantee. These audio lectures are time saving, convenient and effective.
