Sum and Substance Audio on Criminal Law
Author:
Dressler, Joshua
Edition:
9th
Copyright Date:
2024
/
34 tracks
have results for criminal law
Criminal vs. Civil Law 9 results (showing 5 best matches)
- Now, the most obvious way the criminal law differs from, let's say, torts or contracts, is that in the criminal law, you deal with punishment. People are punished in the criminal law for what they've done wrong. In torts, if somebody does something wrong, money is transferred from one person to another to compensate for injuries. But with the criminal law, we punish people. That is, in one sense, a basic difference between the criminal law and all the other subjects that you'll be studying.
- Think of criminal law as immorality play. It's important that you keep this concept in mind because, in a sense, it is a tool by which to think about the criminal law. Because to make sense of the criminal law and of the criminal justice system that you're going to be constructing in your class, you need to keep in mind that what you're building is a building that condemns people for their wrongdoing. That's tool number one.
- And so as we proceed, you will see that the rules of criminal law take into consideration the fact that a finding of guilt is ordinarily a condemnatory statement. And the rules of criminal law that you study are mostly, not entirely, but mostly consistent with this attitude. Never lose sight of that fact. Never lose sight of how different the criminal law is from torts and contracts and all of the other civil courses.
- Let me start with this. As a first-year student, you're studying other courses, right? Probably torts and contracts, maybe civil procedure and property. Well, one of the questions that should come to mind as we start the criminal law, and as you compare this course to the other subjects, is how does the criminal law as a subject differ from the other areas of the law that you're learning? Because I submit to you that it is very different than all of the other courses. Criminal law stands alone.
- So in some cases, the criminal law punishment wouldn't feel as harsh or painful as what goes on in a civil suit. So what makes the criminal law different, what distinguishes it from everything else, isn't really the punishment that flows from a criminal conviction. It's the conviction itself. That's crucial. What am I getting at? Well, a jury, by determining that someone is guilty of a crime, has said by that that the individual is a moral wrongdoer. And that finding of guilt by a jury is a formal pronouncement by that jury of the moral condemnation of the entire community represented by that jury against that individual.
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Introductory Points 4 results
- First, very briefly, a little bit about myself. I've been teaching criminal law and criminal procedure for longer than most, or maybe all of you have been alive. I've been teaching for 40-plus years at various law schools. I've done a lot of writing in the fields of criminal law and criminal procedure, besides law review articles. I have treatises, "Understanding Criminal Law" and "Understanding Criminal Procedure," casebooks in both fields, and a criminal law outline published by West as part of its "Black Letter" series of outlines. And I've also done an audio similar to this one in the area of criminal procedure.
- Okay, that's enough about me. Let's talk criminal law. There is certainly no other topic that you will take in law school, and maybe no other topic in the law generally, that is more important than criminal law. Because here we're dealing with crime and all that that entails, and punishment and all the pain that that entails.
- Hello, my name is Joshua Dressler, and I hold the title of Distinguished University Professor Emeritus and Professor of Law Emeritus at the Michael E. Moritz College of Law at the Ohio State University. And I'm going to be serving as sort of your tour guide through the subject of criminal law. I trust and, in fact, feel that you will find these lectures a useful supplement to your casebook and to your class.
- We're talking about the big questions, questions that theologians, philosophers, poets, scientists, and lawyers, and just regular laypeople have been thinking about for centuries. Questions about right and wrong. Questions about moral and legal and personal responsibility for our actions. Questions about how soon should we let government get into and intrude on our lives by making certain conduct a crime? These are just some of the questions that are raised in the subject of criminal law and in your course. They're obviously controversial and fascinating, and therefore important.
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Sources of Criminal Law 6 results (showing 5 best matches)
- Now, where does the criminal law come from? What is, if you will, the source, the roots of our criminal law? Well, the American law of crimes is primarily English in its heritage, and common law in its origin. What do I mean by common law? Well, I mean judge-made law. Essentially, judges in England created the criminal law that we now know. Two hundred years ago and more, a lawyer, or in the English terminology, a barrister or solicitor, wouldn't pull out a penal code from the library shelf, and then find all of the crimes and defenses there. No, lawyers back then read court opinions, because judges formulated and reformulated, shaped and reshaped the law that we now know as criminal law. Then the English judge-made law was brought to this country by the colonists, where it, again, was shaped by judges. Here, of course, over time, the common law began to respect or to involve American values and circumstances. So American criminal law at its origins, at its roots, is common law in...
- Now, today, of course, we do pull out a book, a penal code or a criminal code, to learn the law. Today, if a lawyer or a law student wants to know the law in a particular state, well, then you start by looking at that particular state penal code. Today, legislators, not courts, enact statutes that define the crimes and set out the defenses to crimes. And judges, instead of making new crimes, interpret the criminal statutes enacted by legislatures. So the obvious question you're going to ask, if not now, at some point, I'm sure, in the class, is, "Well, since we're not living in the 18th century, why do we learn about, why do we even spend time talking about the common law? Why don't we just look at statutes?" Well, that's a fair question.
- Well, first, let me make clear to you, and therefore assure you, that you will look at statutes. Perhaps the statutes from your own state. And likely you will look at the model penal code, the MPC. I'll get back to that shortly. And you'll certainly look at statutes in specific cases you're reading. But here's the point. Most criminal law statutes, certainly most major crime, have their enactment in the form of almost verbatim the common law. In other words, today's statutes derive from the common law. So to understand the meaning of criminal law statutes, we often have to turn back to the common law. Let me give you a good example. There's a California case that's in many casebooks. It involves a man, a man named Keeler, who learned that his wife was pregnant by another man. So he confronted her on the road, determined that she was indeed pregnant, and then went about striking her in the abdomen for the expressed purpose of killing that fetus. And indeed, tragically, the fetus was...
- So in the absence of any definition in the legislation, the common law prevails. So the court looked at the common law and found that a common law, a fetus must be born alive to constitute a being a human being. And so Keeler could not be charged with murder. Now, we may be very unhappy with the result. We may want to prosecute Mr. Keeler. But the answer was correct in terms of how you go about analyzing a statute. Again, when you're looking at a statute, when that statute derives from the common law, as it often does, and when there is some ambiguity in that statute as to its meaning, courts are going to look to the common law for interpretation. And that's why teachers spend so much time on the common law in the course on criminal law.
- Well, the California legislature, it turned out, did not define the term human being in the statute, or in any portion of the penal code. So what do we do then? Well, since the California homicide statute was originally enacted in the 19th century, and was taken virtually verbatim from the common law, the California Supreme Court decided, and it's not controversial, that the way to determine the meaning of the term human being is to look at the common law. Why? Because the court reasonably assumed that the legislature that first enacted the murder statute way back in the 1800s probably meant for the words in the statute to carry the same meaning as those words carried before under the common law. If the legislature had a different idea for the meaning of these terms, they could have said so by defining the terms.
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Mens Rea part 2 11 results (showing 5 best matches)
- Finally, let's talk about negligence, or what is sometimes called criminal negligence to differentiate it from tort negligence. Criminal negligence requires a higher degree of negligence than is required in tort law. Why? Well, because this is criminal law. We're denouncing and condemning this person. We're going to take this person's liberty away. We're not just transferring money from one person to another. So it has to be a worse type of negligence, criminal negligence.
- But how does criminal negligence differ from recklessness? Well, I'll remind you that the common law often talked about criminal negligence, or what is sometimes called gross negligence, interchangeably with recklessness. Happily, things are clearer today.
- As difficult as it is to get a handle on these terms, unfortunately, these labels matter in any non-Model Penal Code jurisdictions. As you will see, some criminal law defenses are only available if the crime charged is a so-called specific intent crime. So being able to label the crime as specific intent rather than general intent is critical in determining whether or not the defendant is going to be able to claim a particular defense. And yet, as I said, courts don't even agree on the definition of these terms. And maybe the definition that I give you here may not be the one your professor gives you. So that's a warning to you. Obviously, if your professor gives you a different definition than what I'm giving you, go with the professor's definition.
- 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 a risk. The critical difference between recklessness and negligence is that the reckless actor is consciously aware that she's taking the substantial and unjustifiable risk. In the case of criminal negligence, however, we would say that the person should have been aware as a reasonable person of the substantial and unjustifiable risk he was taking, but he wasn't aware.
- In contrast, if a crime by definition has no mens rea requirement of the sort that I've just mentioned, in other words, if it's a crime that requires a mens rea, it isn't strict liability, but it doesn't have a particular mens rea of the kind that I've just talked about, then we call this a general intent crime. For example, rape at common law is a general intent crime. We'll have more to say about the crime, but at common law, rape was defined as sexual intercourse by a male with a female, not his wife, without her consent. That's the common law definition of the actus reus.
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Theories of Punishment 9 results (showing 5 best matches)
- But there's another reason, maybe even a more basic reason, why we should care about the theories of punishment. And that goes to the individual that we're looking at. Is it morally justifiable to punish this particular person for committing this particular act on this particular occasion? In other words, not just why do we have criminal laws, in general, and punish for their violation, but can we justify punishing this person who's here in front of you, punish them in a way that we intend to punish them on this particular occasion? As you consider the criminal law doctrines this semester, the rules of criminal law, the elements of crimes, the defenses to crimes, and so on, those are rules, rules that are based on an understanding by common law judges and now by legislators of when punishment is morally appropriate.
- In other words, to understand the rules of criminal law that you're going to learn in your class, to appreciate the law that you're learning, to be able to make sense of the criminal laws that you're learning, to be able to evaluate the laws. Are they fair or unfair? You need to understand the theories of punishment that underlie these rules. So, let's spend a bit of time talking about punishment. And I promise you, if you learn how to use these tools of punishment, you will be much better equipped to make sense of what you're learning. And you'll be better equipped to discuss the topics your professor wants you to discuss on an exam.
- In other words, even from a very early age, we intuitively sense that there's a need for an explanation, a justification when bad things happen to us, when we experience pain. If somebody gives us the gift, we just say thank you. But if somebody hurts us, we want to know why. Justify why you did this to me. Well, think about it. The criminal law is like hitting a person, like intentionally hitting a person. It is intentionally inflicting pain. Criminal law is intentionally inflicting pain upon another person. And remember, it is pain being inflicted in your name. It's the people of the state of whatever state you're living in. So, this is going to be done in your name and in my name, then we ought to have a good reason for doing it. And the theories of punishment that you will learn in class help to develop reasons why it may be okay, under certain circumstances, to purposely inflict pain upon a fellow citizen. That is, to punish.
- In any case, as we proceed, your teacher, your casebook, and sometimes even I here, may seek to explain a particular rule of criminal law by using retributive or utilitarian explanations, or both. Sometimes you'll find that the rules of criminal law can be nicely explained under both of these theories. Sometimes, however, a rule only makes sense if we follow one of those theories. Sometimes you'll find that the rules we've developed might be inconsistent with both retributive and utilitarianism. And if that happens, that means there's something wrong, wrong with the rules that we've developed. So, that's another reason why it's very helpful, in fact, important, critically important to have these theories in mind because they will help you to understand and appreciate and, if necessary, critique the rules that you're learning. Okay, that's, if you will, tool number two.
- Let me give you another example, or if you will, another justification for retribution. In a society, people burden themselves. What do I mean? Well, we burden ourselves by not committing crimes. We give up the freedom that theoretically exists in a state of nature, to follow our basest desires, to take something that doesn't belong to us, or to hurt somebody. We do this, that is, we burden ourselves by not doing these crimes because it brings us benefits, namely that others will not use their freedom to follow their basest desires and perhaps harm us. So, as long as we burden ourselves in this way, we gain a benefit. The problem is that the criminal doesn't play by the same rules. The criminal does what the criminal wants. She doesn't accept the burdens of obedience, even as she gains the benefits of our obedience. In other words, we forbear from committing crimes. She gets the benefit of that, but she doesn't reciprocate by burdening herself by not committing crimes. Punishment,...
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Principles of Legality 7 results (showing 5 best matches)
- Another basic concept of criminal law, another tool of the criminal law, our third tool, is what I call and is typically called the principle of legality. Another way of putting it, it's the rule of law. One famous scholar has said that it is the principle, the first principle of American law. In other words, the most basic principle we have. In some sense, the principle of legality overrides all the other rules, or at least it is supposed to.
- Now, a corollary of this principle 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 is a felony to do a bad act. Or consider a story I read recently in a paper in which a legislator wanted to punish cheerleaders, yes, cheerleaders who, and I quote, "dance in a sexually suggestive way." Well, what does that mean? The legislator's answer when he was asked, 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 unlawful?
- It's unfair to punish a person who can't reasonably be expected to understand the law because it's vague. That would make the 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 race, gender, religion, sexual orientation, or even because they have long hair or dress in a way disliked by law enforcement. They can do that if a law is sufficiently vague. They can pick on people they don't like. It's much harder to discriminate if the statute is clear.
- The principle of legality gets at this basic point. We don't punish a person because he's bad, or because he's immoral, or because he's dangerous. We don't even punish a person because he's committed a bad, or dangerous, or immoral, or harmful act. We only punish that person if that bad or dangerous or immoral act is also a crime on the books. Or as the Latin phrase is translated, "No crime without law, no punishment without law." That's the basic rule of law, something we all take for granted in our country that isn't so much present in some other countries. And, frankly, the rule of law has been attacked in this country by leaders who have not respected the rule of law at times.
- So to summarize this tool, the principle of legality requires that the law be on the books before a person can be charged for violating the law, and the law must be reasonably clear. The principle of legality, I can pretty much promise you, will pop up a number of times during your class.
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Mistake of Law 14 results (showing 5 best matches)
- So, in conclusion, there are two common law exceptions to the basic rule that ignorance of the law is no defense. The first exception, reasonably relying on an official interpretation of the law. And second, if the criminal statute as defined requires proof that the defendant be aware of a particular law, that's mistake of law under the common law. And, lo and behold, these exceptions also work exactly the same way under the Model Penal Code. So, happily for you, those two common law exceptions apply under the MPC Section 2.04.
- Anyway, the most common explanation for the very harsh rule is the utilitarian argument. And that's why Mr. Marrero's conviction was upheld. But having said that this is a very strong rule does not mean that there are no exceptions to the rule. There are a couple. There are circumstances in which a person may successfully claim mistake or ignorance of law. First, a person is excused for committing a criminal offense if, at the time of the crime, she mistakenly believed that her conduct was lawful if, and this is a very big if, if her misunderstanding of the law is based on an official person, although it later turns out to be an erroneous official interpretation of the law, by a person or agency that has responsibility for enforcing or interpreting the law in question. Let me repeat that. A person is excused for committing a criminal offense if, at the time of the crime, she mistakenly believed that her conduct was lawful if her misunderstanding of the law is based on an official...law
- The crucial point here to understand is that the person must be relying on an official interpretation of the law. And that official interpretation of the law must come from some particular person or institution that has the authority to interpret or enforce the law. This doesn't give the person the right, for example, to go to a private attorney and ask the private attorney to tell her what the law is. A private lawyer doesn't give official interpretations of the law. A court can. Maybe an administrative agency can. A prosecutor can interpret a particular statute, but you have to go to the right person or right institution, and you must get an official interpretation of the law, not just an off-the-cuff interpretation. But if you do rely on an official interpretation of the law, which later proves to be erroneous, then there is reasonable reliance exception to the general rule, and therefore, in that situation, ignorance of the law or a mistake of law will be a defense.
- Okay, let's now turn to a different kind of mistake. A mistake of law. The rules here are stricter than with mistakes of fact. I think you've heard it before, haven't you? Ignorance of the law is no excuse. Well, to a very great extent, that cliche is right. You can start from the proposition, the very firm proposition, that indeed, a person who says, "I didn't know about that law," or who says, "I didn't understand that law," is almost always out of luck. The defendant's mistake of law, reasonable or unreasonable, will ordinarily not serve as a defense. That's the general rule. There are, however, a few exceptions, and so we have to look at those exceptions. But you begin from that very harsh starting point that ignorance or mistake of law is no defense even if the mistake was reasonable.
- Well, since he arguably thought he fell within the exemption of the statute, he thought he wasn't in violation of the law. Well, it turned out that that was an incorrect interpretation of the law. It turns out that correctional officers like Marrero didn't fall within the definition, and so he was not exempt under the state of law. Now, it has to be pointed out that some of the judges in New York agreed with his understanding of the statute. But the New York appellate court held by a vote of three to two, that this was an incorrect reading of the law. Let's not worry why it was incorrect. It's enough for now to say that his understanding of the law was mistaken. But his mistake was a reasonable one. Indeed, three of the six judges who had to decide the case between the trial court and the appellate court, three of the six thought he was right.
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Inchoate Offenses - Attempt 15 results (showing 5 best matches)
- And the defense is really rather simple. It's basically this. If I cross the line of attempt, that is to say, I've gone far enough for the law to say I am guilty of attempt, but I haven't been arrested. And I then voluntarily totally abandoned my criminal attempts, if I turn my back, if you will, on the crime, I completely renounce my criminal purpose and I do that voluntarily, it's a true heart and soul voluntary renunciation. Then the Model Penal Code says I should get a defense. I'm not guilty of attempt. in contrast to the common law, which does not allow the defense. The Model Penal Code says you've crossed the line of attempt, which you can sort of uncross if it is a voluntary total abandonment of your intention to commit the crime. Whereas the common law says, if you crossed that line of attempt, you can't get back. You've crossed it, you are guilty of attempt. So, at common law, even though I've abandoned and renounced my criminal purpose, I can still be convicted of...
- 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 on his own. So we have conflicting concerns here. And the law demonstrates this conflict by having difficulty determining where the line should be, between conduct that will not be deemed yet criminal, on the one hand, versus conduct that has gone far enough that we want to justify police intervention and criminal punishment. So with those concerns in mind, let me start with the crime of attempt.
- What you need to understand is that at common law, there is a distinction between factual and legal impossibility. Again, legal impossibility is a defense and factual is not. Under the MPC, and many states today, the distinction has been abolished. There is no defense. Now, there is another potential defense that comes into play in the area of attempt. And that's the defense of abandonment or what the Model Penal Code would call renunciation of a criminal purpose. I have to emphasize at common law, there is no such defense of abandonment. The defense, however, applies under the MPC and in a number of states that have followed the direction of the MPC.
- First, we might be allowing the police to arrest a person who is really entirely innocent, somebody who intended no crime at all, but just seemed to be acting suspiciously. Maybe Alex is following Carla down the street, kind of close. Well, is Alex a threat to Carla, to rob her or to rape her? Do we want the police to be able to jump in and arrest Alex at that moment? Maybe or maybe not, as Alex may be guilty of nothing, nothing worse than looking suspicious, and no more. So we do have to be concerned about the rights of an innocent person. Also, at least if we believe in retributive theories of free will, maybe we want to give people some chance to change their mind. I mean, many people, maybe most people, sometimes have criminal thoughts sometime in their life and maybe even do some slight act in the direction of committing the crime. But many of those people, they very quickly say to themselves, "Whoa, what was I thinking?" and they fully abandoned their criminal conduct.
- Another test, the so-called probable desistance test, focuses on a kind of fictional point at which we ask the question of whether a person would probably, at this point, think better of their conduct and desist. And under this test, a person becomes guilty of an attempt when we conclude that a person has passed the point of no return. That is, that the person has gone so far that we don't think that an ordinary person in those circumstances would turn back. At that point, where an ordinary person would not likely abandon their criminal activities, we would say that an attempt has occurred under this test.
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Complicity 7 results (showing 5 best matches)
- We now turn to the final issue, the final topic that we're going to cover, and that's complicity. If you think about it, for these number of hours that we've been together, we've been generally talking about a person who kills another person, or a person who robs another person, a person who steals from another person. But the discussion of conspiracy reminds us that sometimes people work together to commit crimes. One person might commit it, and somebody else will participate by helping that other person to commit it. Now, generally speaking, the criminal law only holds people accountable for their own actions. Criminal law is not like tort law, where an employer might be held responsible vicariously for an employer's actions, even though the employer might not have been negligent at all. But in criminal law, since we're punishing people and stigmatizing them, the general rule is that people are not held accountable for anything other than their own conduct.
- First, there is no such thing as the crime of aiding and abetting, such as you've been charged with the crime of aiding and abetting a murder. No, there is a crime of murder, not a crime of aiding and abetting a murder, or robbery, or anything else. What accomplice law does is make the accomplice accountable for the crimes of the perpetrator, the primary party. If the primary party is guilty of murder, then the accomplice is guilty of murder. Essentially, an accomplice derives, and that's the key word here, derives her liability from the actions of the perpetrator. So the question is, with accomplice law, under what circumstances does a person derive criminal liability for the actions of another person? What does it take for a person to be sufficiently enmeshed in the crime that we can say, "Okay, you're involved enough. And even though you didn't personally commit the crime, we're going to hold you accountable for the primary party's actions, and hold you guilty of that same crime...
- Now, the other initial point at common law is that there were some common law terms that you needed to know and really memorize to understand accomplice liability. And those terms have been abolished, more or less, in virtually every state. But courts often use the terms, so it's important still for you to keep those terms in mind. And what are those terms? The common law will talk about a person being a so-called principal in the first degree. Well, that's simply the perpetrator of the crime, the primary party. The person who pulled the trigger of the gun or killed another person, or it's the person who had the non-consensual sexual intercourse, or whatever. Then there is the so-called principle in the second degree, sometimes called an accessory at the fact.
- ...by offering that money to the driver and soliciting him to drive fast, haven't I also at least acted criminally negligently myself? Haven't I, by my actions, reached a situation where we can say that I should have realized that I was creating a substantial unjustifiable risk by inviting my driver to drive too fast? So should I be guilty as an accomplice in the negligent crime of involuntary manslaughter? Well, most courts now say, as does the Model Penal Code, that if the crime involved is a crime of recklessness or negligence, an accomplice can be convicted if they had the requisite mens rea for that underlying crime. So if a person is charged with criminal negligence, that is the primary party, and is convicted of that crime of negligence, then an accomplice is guilty if they had the same level of mens rea negligence. If the crime is a crime of recklessness, by the perpetrator, then the accomplice, the person who assisted, can be guilty if their mens rea is at the level of...
- So, at common law, most jurisdictions require that the accomplice to be held accountable have as his purpose to assist in the crime. Whereas some jurisdictions only require knowledge. The Model Penal Code requires purpose. But be careful. Sometimes, even if you're in a jurisdiction that requires purpose, sometimes you can prove purpose from knowledge. For example, suppose a landlord knows that one of his tenants is a prostitute using the apartment to meet with her customers. So he charges her more money for rent. Now, his knowledge of her crimes is then really more than just that. He now has a stake in the venture because he is profiting from his tenant's crimes by charging higher rent. He now has a reason to want her to succeed so he can keep getting his inflated rent. In that example, his knowledge actually proves purpose.
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Burden of Proof 3 results
- One final introductory tool, one more tool for understanding the criminal law. And that 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 trial beyond any reasonable doubt.
- Okay, so to review, these are the tools that you need to keep in mind. We discussed first how the criminal law differs from civil law, in that a criminal conviction involves moral condemnation of the wrongdoer. We also saw that there are two basic theories of punishment that you need to know, retribution, utilitarianism. And we've seen that there is this principle of legality. No punishment unless there's crime on the books, and that statute must be clear, not vague. And finally, keep in mind the burden of proof rules that I just mentioned.
- Now, not only is this a basic principle of our common law, it's a constitutional requirement. The Supreme Court has held in a case called "In re Winship" that the Due Process Clause that is the requirement in our Constitution that no person shall have life, liberty, or property taken without due process of law, requires that the prosecutor prove, beyond any reasonable doubt, and I'm now quoting Winship, "prove every fact necessary to constitute the crime charged." Prove every fact necessary to constitute the crime charged. Later cases from the Supreme Court have held that when the Winship court used that word "fact," that every fact must be proven beyond any reasonable doubt, that that means every element of the crime. In other words, you look at the definition of a crime, and the prosecutor must prove, beyond a reasonable doubt, every component of that crime in that definition. So, as we discuss, as your professor discusses the elements of a crime, keep in mind, the prosecutor must...
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Actus Reas 14 results (showing 5 best matches)
- Now, of course, the primary victim of harm in most criminal cases is an individual or a small number of individuals. But the whole society is harmed when a person commits a crime. When you learn about a crime occurring in your community, doesn't it affect you and how you live your life? Perhaps you don't go out at night or you don't go to certain parts of town because of a fear of crime. You lock the door of your home and of your car in order to protect it from break-ins. To the extent that that fear is reasonable, we can say that your liberty has been impaired by that criminal. You're being harmed too. Furthermore, hasn't a person, by committing a crime, torn the fabric of society, at least to a small amount? There is harm to the whole society in criminal law. So we call it social harm.
- Okay, we now turn to the second element of a crime, social harm. We don't punish people for their voluntary acts as such. We don't punish people even for their omissions when there's a duty to act. We punish people when those acts or omissions result in social harm. What do I mean by social harm? Well, first, notice I put social in the description, which is a way of reminding us that we're dealing again 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, that a criminal conviction is a statement by the whole community condemning and denouncing the individual and the individual's actions. It's the people of the state of New Jersey or Texas versus Smith. It's harm to the whole community that's being condemned.
- The common law requires that a defendant's conduct include a voluntary act. And that principle, by the way, is also codified in the Model Penal Code. and increasingly, thanks to the Model Penal Code, in many state criminal codes. 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." Okay, so what is a voluntary act? Well, at common law, a voluntary act very simply is a willed muscular contraction. That's it. Willed muscular contraction. When you raise your hand, or when you walk, or when you get in the car and start the ignition, or when you pull the trigger of a gun, those 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.
- The fourth exception involves a situation in which the actor creates a risk of harm to the victim. and then fails to do something to diminish that risk. Here's an example. You are driving down the street. Out of nowhere, a small child darts in front of your car, and you strike and hit that child. Now, I'm going to assume that you were driving absolutely properly. The child was entirely at fault in jumping out in front of your car. So you aren't legally responsible in the criminal law for the injuries that this child has suffered as a result of your car hitting it. You're not responsible because you were in no way to blame. But now the child is lying on the ground, alive but very injured. If that child is left there, the child might bleed to death or might be run over by a second car.
- Do you have a duty to stop and give some sort of aid to that child, even though you weren't to blame for putting that child in the predicament in the first place? The answer of the criminal law is yes. You created a risk of additional harm to this child. Again, we're not talking about that broken arm or broken leg that the child has already suffered. For that, you're not responsible. It's the risk of harm that might occur if you fail to help the child in jeopardy on the road. So if you fail to give that child aid at that point, and then if something ensues that causes additional harm, you may be held responsible for that additional harm because of your failure to act.
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Common Law Murder part 1 14 results (showing 5 best matches)
- Now, again, the actus reus of criminal homicide is the killing of a human being by another human being. So one issue is, what do we mean by the term human being? More specifically, at what point does a person become a human, and at what point does a person cease to be a human being? At the beginning and at the start of life, as I've already mentioned in an earlier lecture, the common law answer was that a fetus is not a human being. It becomes a human only when it's born alive. That's the common law position. Now, many states have modified the common law rule and have determined that a fetus, maybe a viable fetus, constitutes a human being. So you have to look at the statutory definition in any particular jurisdiction. But in common law, a fetus must be born alive to be a human being for purposes of the homicide laws. And by the way, that's how the Model Penal Code defines it as well.
- Now, the term homicide doesn't suggest a crime. After all, some homicides are justifiable, for example, killing in self-defense. So the question is, what makes a homicide a crime? At common law, there were two forms of criminal homicide, murder and manslaughter. Both crimes have the same actus reus. In other words, whether the crime is murder or manslaughter, what we're talking about is the killing of a human being by another human being. So the vast majority of criminal homicide issues don't involve the actus reus. That's the same for murder and manslaughter. It's pretty straightforward. If Jane stabs John and John dies, we've got a killing of a human being by another human being. But on occasion, there will be an actus reus issue in the homicide area. So let's consider those rare, but nonetheless important actus reus issues.
- At common law, murder required proof that the defendant killed the other person with, "Malice aforethought." Those two words involve a lot of learning for you to do. If you haven't already done it, you're going to spend a lot of class time on what the common law meant by the words malice aforethought. All right, first some quick points, and listen very carefully to this comment, because this is something that so many students miss. At common law, there were no degrees of murder. I know you've probably heard about first-degree murder and second-degree murder. And maybe you've looked at statutes that have degrees of murder. But at common law, there was no such thing as first and second degree murder. There was just simply murder. And all murder, in common law, 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 that extreme penalty.
- All right, now that brings us to the fourth category of malice aforethought, the most controversial and the most complicated. It is the so-called felony murder rule. In its simplest form, a person is guilty of murder if he kills another person during the commission or attempted commission of any felony. That's the pure common law felony murder rule. Commit a felony, plus someone dies as a result, that equals malice aforethought, and therefore murder. Now, the felony murder rule, which comes from England, was abolished in England by statute in 1957. And it's never even existed in most of the other European countries. nor in Canada. But it remains the law in this country in almost every state penal code. And it is definitely a part of the American common law.
- And that's another part of the controversy around the felony murder rule, because the felony murder rule applies when the killing occurs during the commission, or attempted commission of the felony, but the law also treats the escape from the scene of the felony as part of what the law calls the res gestae. Res, R-E-S, gestae, G-E-S-T-A-E. The res gestae, 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 also if the killing occurs later, during the escape from the scene of the felony.
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Self Defense part 2 8 results (showing 5 best matches)
- If your answer is, well, we should include all of the defendant's characteristics, then what do we do if we have a racist defendant who, let's say, kills a black person because he believes, as a racist, that this man represents an immediate threat to his life? To a reasonable racist, that belief might be reasonable. But are we willing to talk about a reasonable racist? In other words, the issue often in the criminal law, not just in the case of battered women, not just in the case of self-defense, but throughout the criminal law, where is a defendant to be held when the defendant is to be held to the standard of a reasonable person, which characteristics of the defendant and which life experiences of the defendant are relevant and thus appropriate to be included in the reasonable person standard? That's a very serious question likely to come up in your class a number of times in a number of places.
- There's another critical question that arises in battered women cases. But it's a critical question throughout the criminal law. And that is, in a sense, who is the so-called reasonable person? Which characteristics of the defendant, if any, should be included in this objective standard we call a reasonable person? Should we describe the battered woman as just a reasonable person, or a reasonable woman, or a reasonable battered woman, or a reasonable battered woman with battered woman syndrome? Where do we draw the line?
- How is that different? Suppose my archenemy, unarmed, tells me he's going to go upstairs to get a gun, load it, and come back out and kill me. And he means it. At common law, when he turns his back on me to go get the gun, the danger to my life is not yet imminent. He's still unarmed. The attack is not underway. So I probably would not be permitted to claim self-defense at common law if I were to, for example, stab him in the back when he turns to go upstairs and get that gun. Under the Model Penal Code, however, I might be able to claim self-defense if I can prove the deadly force on my part was immediately necessary on the present occasion. The need, the necessity, on my part, to use deadly force was immediate. I mean, after all, it was now or never when I stabbed him in the back. If I waited for him to get the gun, I'd be in big trouble. But I can stab him now because it's basically now or never. So the code gives me more wiggle room to use deadly force than the common law does.
- Well, this subject raises profound moral questions about the plight of women or anybody who's been a battering victim in these circumstances. It also raises questions, moral questions about the sanctity of human life, even the human life of someone as rotten as an abuser. I urge you, when you read any case of this sort, to think long and hard about the issue. Ask yourself why, if at all, Is it justifiable for a person to kill someone who is not now an immediate threat, but who will very likely be a threat later? Should a preemptive strike be justifiable in the law? That isn't the law today. You can't kill somebody today because you have good reason to believe you'll be attacked tomorrow. That's a preemptive strike. But should the law get rid of the imminency requirement and permit preemptive self-defense? That's a tough question. And if you can develop an answer, yes or no, as to why it is or isn't justifiable, and articulate that reason, your professor is going to be impressed.
- ...s shoes would take into consideration the fact that the other person has violent attributes and has been violent to her in the past. In this case, that beer bottle may be more than a beer bottle, and instead a weapon to any reasonable person in her shoes. Thus, a battered woman who is brought into court on a criminal homicide prosecution, in this example, should be permitted to introduce evidence that she, in fact, is a battered woman at the hands of that man, her husband. Because if the jury didn't know this, it would be hard for it to understand why she would believe that he was going to kill her. But if she can tell the jury, "Hey, I've gotten beaten by this man on a regular basis, and I get beaten most often when he was drunk, and he was drunk again this day. And in fact, often when he says, "bitch", it's followed by a beating." Well, those are relevant facts, relevant to our understanding why she might have reasonably believed in this ambiguous situation that he did in fact...
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Closing Remarks 2 results
- Okay, we are done. I hope that you enjoyed or are enjoying or have enjoyed your criminal law class. And I certainly hope that these lectures have been of help to you, helping you to understand some of these admittedly very difficult doctrines.
- So you can reach me through my OSU email address, and that is dressler.11@osu.edu. So with that, I wish you the very best on your exams, 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 what is most important in life, and it isn't your criminal law class. It's family. It's love. It's doing good in life. It's being a good person in life. Enjoy it. Goodbye, and thank you.
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Manslaughter 16 results (showing 5 best matches)
- So now we're going to turn to manslaughter, the other form of criminal homicide in common law. Under American common law, manslaughter was defined as the unlawful killing of a human being by another human being without malice aforethought. In other words, the difference, the only difference between murder and manslaughter is the presence or absence of malice aforethought. Now, at common law, manslaughter was itself divided into two categories, voluntary and involuntary. Let's talk about voluntary manslaughter. At common law, this form of manslaughter has come to be known as the heat of passion or provocation form of manslaughter. In almost every case in this category, the defendant intended to kill the victim. So the case would constitute murder unless the defendant can prove that the case falls within the doctrine of heat of passion.
- Okay. We've talked about murder. We've talked about voluntary manslaughter. Now we're going to turn to the common law crime called involuntary manslaughter. At common law, there were two types of involuntary manslaughter. First, a killing that occurs as a result of criminal negligence, or what some states by statute may simply describe, and I'm quoting now, commission of a lawful act which might produce death committed in an unlawful manner or without due caution and circumspection. I'm giving you that language because you will find it in a number of statutes. And that language comes directly verbatim from the common law, indeed from Blackstone, the commission of a lawful act which might produce death committed in an unlawful manner or without due caution and circumspection. That's basically saying that what the person was doing was an otherwise perfectly lawful act, but it was done in a criminally negligent manner. A criminally negligent killing constitutes involuntary manslaughter.
- Well, if a person criminally, negligently kills another person, not recklessly, but negligently, the Model Penal Code drops that to a lower crime still, lower than murder, lower than manslaughter. The Model Penal Code created a new crime called negligent homicide, and a number of states have followed suit. So, a criminally negligent killing, which would be involuntary manslaughter at common law, is negligent homicide, a lesser crime under the Model Penal Code. And as for an unlawful killing, like stopping at a stop sign not fast enough, the Model Penal Code does not have an unlawful act, or, if you will, a misdemeanor manslaughter rule. It's gone. Period. If you crawl through that stop sign and you kill that child, well, if the prosecutor can't prove that you acted with criminal negligence, so as to convict you of negligent homicide, then you're not guilty under the MPC of any form of criminal homicide. So, that's our basic discussion of murder and manslaughter.
- A second category of adequate provocation at early common law was observing the seduction of one's young daughter. Third, a serious battery upon oneself could constitute adequate provocation. These were basically the categories of what the common law, at least the early common law, considered adequate provocations. On the other side of the coin, the common law was very, very clear that words by themselves never, never constituted adequate provocation. It doesn't matter in common law what the words were, how insulting the words were, or what information those words provided. If a person uttered a racial epithet at another person, and that made that person so angry that they killed, that wasn't enough. Or if a person provided information to the defendant that might arouse anger. For example, hey, yesterday, I slept with your wife, and boy, was that fun. Those are words, and words alone would not do.
- Now, and you need to warn you. At original common law, there were actually certain limited categories of provocation that were considered adequate and thus would meet the first element of the heat of passion doctrine. And if you couldn't fit into one of those pigeonholes, you weren't entitled to a claim of adequate provocation. So what were those categories? Well, the first category was if a man observed his wife in an act of adultery. And the key point here is he had to observe it. Simply being informed about the adultery was not enough. And I stress, at original common law, it involved a man observing his wife in adultery, not vice versa. The law was very sexist in this regard.
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Rape 18 results (showing 5 best matches)
- Now, this is obviously a controversial area because the common law definition of rape when we look at it in the 21st century is in so many ways wrong and unjust to women. And consequently, the crime as defined is changing. The law of rape that I taught when I began teaching criminal law 40-plus years ago is not even close to the law of rape today. Indeed, more and more states have even changed the name of the crime from rape to sexual assault or maybe sexual battery. And today, more and more states have made the crime gender-neutral. The victim can be a male or a female. And theoretically, 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.
- And the other form of sexual misconduct that constituted rape, the only form of sexual conduct that constituted rape was sexual intercourse, which meant at common law vaginal penetration. Non-consensual oral sex, non-consensual anal sex constituted another crime, but not rape. And to remind you, rape at common law was a general intent crime.
- The key point is the law is changing. Modern statutes do not look even a little like the common law version of the crime. And the process is not over yet. The process of change is still going on.
- But for now, let's start with non-MPC law. There are various types of rape, common law rape, most commonly forcible rape, but also fraudulent rape and statutory rape, in other words, rape of an underaged female. Let's discuss here forcible rape, which your class will probably cover first and more fully than anything else.
- Indeed, the Model Penal Code 1962 version of rape was way ahead of its time. It was quite progressive. But by the turn of the century, attitudes about the offense and about proper relations between males and females had changed so substantially that the Model Penal Code rape laws progressive by 1962 standards looked downright backward by the 21st century, so backward that members of the American Law Institute, the authors of the MPC, decided to amend their sexual offense provisions and after a decade of work, adopted entirely new sexual offense provisions in 2022.
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Excuse Defenses - Duress 7 results (showing 5 best matches)
- Third, the defendant must not have been at fault for being in this coercive situation in the first place. And fourth, at common law, and in most states today, duress, like the defense of necessity, is not a defense to the crime of murder. If there is a kind of kill or be killed threat, if somebody puts a gun to your head or to the head of your child or parent or 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, you will not be allowed to claim duress. You are guilty of criminal homicide.
- Now, the Model Penal Code has even a broader test of duress. And often casebooks like to talk about it, so let me briefly mention Model Penal Code Section 2.09, duress. It provides that it is a defense if the actor engaged in criminal conduct because she was, and now I'm quoting, "coerced to do so by the use of or threat to use unlawful force against her person or the person of another." What kind of threat must it be? Quoting again the Model Penal Code, "a threat that a person of reasonable firmness in her situation would have been unable to resist."
- With an excuse defense, a defendant is saying, in essence, "Well, I did something wrong. It wasn't justified, but still, I shouldn't be blamed for what I did." And so now we're going to look at how the law deals with such excuses. And we're going to see that the law doesn't look so kindly upon excuse defenses. There are fewer excuse defenses than there are justification defenses, and they are fairly narrowly defined.
- Now, I need to warn you. The defenses of duress and necessity are sometimes confused, so it's worth comparing them. First, duress involves human threats. Common law necessity involves natural threats, like a tornado or starvation on a lifeboat. Today, however, many states and the Model Penal Code will allow the necessity defense to apply to human as well as natural threats. But everywhere, duress only applies to human threats. In other words, you can't claim the defense of duress because you were threatened by a tornado.
- And there's a second more significant distinction between necessity and duress. Necessity is a justification defense. The person has done the right thing under the circumstances. That person has chosen the lesser of two evils. But duress is an excuse defense. It is not necessary to show that the defendant made the right decision. It's not necessary to show that the person has chosen the lesser of two evils. This is an excuse defense. We excuse the coerced actor because we don't believe that that person is blameworthy if they succumbed to a coercive threat. Okay, that's duress, common law, and Model Penal Code.
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Common Law Murder part 2 5 results
- Now, casebooks today typically discuss two or maybe even more limitations on the felony murder rule. And by the way, you can read about all of the potential limitations. There are as many as five or six of them, if you look at my text, "Understanding Criminal Law." But in these audio lectures, I'm only going to mention two of the limitations because those are the two most common ones placed on the felony murder rule. And many casebooks only cover these two limitations. So here it goes.
- So the felony murder rule of today has a much greater impact than it did at the common law. And because of this, many courts quite simply don't like the felony murder rule, even though almost all legislatures have enacted felony murder into their homicide statutes. Because of this unpopularity of the felony murder rule among some judges, some jurisdictions, by judicial opinion, have basically narrowed the felony murder rule so that it doesn't apply to every killing that occurs during the commission of any felony. In other words, there are judicial, if you will, common law limitations. And therefore, you need to be sensitive to some of those common law limitations that have been placed by some jurisdictions on the felony murder rule.
- All right, now again, at common law, when the felony murder rule was devised, there were only a few felonies. They all carried the death penalty So in a sense, the felony murder rule didn't matter way back when. You robbed somebody and got convicted of robbery, you got executed. You robbed somebody and somebody died, you're guilty of robbery and murder. You get executed. The felony murder rule was no big deal. Today, however, you don't get executed for robbery or theft or any of the common law felonies except murder, and that's only in some jurisdictions. And today, there aren't just a handful of felonies, there are dozens of felonies on the book.
- So to summarize. Murder is the killing of a human being by another human being with malice aforethought. That means that if a person kills another person with any one of four states of mind, intent to kill, intent to commit grievous bodily harm, killing with a depraved heart, or any killing that occurs during the commission or attempted commission of a felony, if the killing occurs with any of those four states of mind in the absence of any justification defense, and in the absence of any mitigating factor, the person is guilty of common law murder.
- What is the independent felonious purpose? Answer, to take somebody's property. And that's not assaultive conduct. In other words, the defendant wasn't there to cause violence, like the person who takes a bat and hits somebody. The person was there to get somebody else's property. You can, therefore, at least theoretically, say to the robber, "Look, if you want to take somebody else's property, okay, we're trying to prevent that by our larceny laws, but if you're going to go do it anyway, if you're going to steal somebody's property, do it nonviolently. Don't use a gun. Don't threaten people with force. Just go and steal the property."
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Mens Rea part 1 6 results (showing 5 best matches)
- Until the 13th century, or thereabouts, there was no mens rea requirement in English criminal law. That is, if a person could be convicted of a crime, based solely upon proof of the actus reus, if A killed B, even accidentally, that was a crime. By the 13th century, however, judges began to decide that it was wrong to punish people, and indeed back then, the death penalty was imposed for all felonies. That it was wrong to punish people unless that person acted with a mens rea. At that point, the judges basically meant by mens rea, a morally blameworthy state of mind. In other words, back then, when judges talked about mens rea, they generally meant the culpability meaning of mens rea. So in the 13th century, when they developed this mens rea requirement, the common law judges didn't spend time redefining the crimes. The definitions of most crimes simply contain the actus reus requirement. Because, again, remember, before the 13th century, that was all there was to a crime, the actus...
- So the general rule is that a court will infer a mens rea requirement into any crime definition, even if the crime on its face contains no mens rea requirement. That's because we consider the mens rea requirement so important. It is so deeply embedded in our criminal law that we don't think we should punish and condemn and stigmatize people, and take their liberty away unless they committed the harm with some morally blameworthy state of mind. But if it's clear, if it is the clear intention on the part of the legislature to do away with the mens rea requirement for a particular crime, in other words, if the legislature really meant to make this a strict liability crime, then a court will allow such a crime to exist.
- Now, you'll remember that I started this hypothetical by asking how many people did I kill intentionally? And as I noted, the term intent or intentional is a common law term, and one used in many non-Model Penal Code statutes. Basically, the MPC concepts of purpose and knowledge, when combined, add up to the common law term intentionally. In other words, if a person either purposely or knowingly causes a particular result, then the common law would describe this situation as saying that the individual caused the result intentionally. So, at common law, and according to statutes that use the term intentionally, I killed 101 people intentionally. One person because it was my conscious object, the other 100 because I killed them knowingly. But under the common law, that's 101 intentional killings.
- In that crime, and with a few other common law crimes, the mens rea was specific. The mens rea required was specified in the definition so that a person was not guilty of burglary unless he committed the social harm of the crime with the very specific state of mind set out in the definition there. Here, the intent to commit a felony inside the home. So most of the time, mens rea just meant culpable. Sometimes mens rea meant a particular state of mind found in the definition of the crime, or what we're calling the elemental meaning of mens rea.
- Now, 13th century and beyond, these crimes had a mens rea requirement, but the mens rea wasn't specified in the definition of the crime. And so in those circumstances, what the court really was saying was that the defendant to be convicted must be shown to have committed the actus reus of the crime with some sort of morally blameworthy state of mind, something that demonstrated that the person was acting with an evil mind. The courts didn't care what mens rea, just that it was morally blameworthy. But even in these relatively early years, the common law began to define certain crimes with a very particular state of mind, like we saw with burglary, breaking and entering the dwelling house of another at night with the intent to commit a felony therein.
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Causation 8 results (showing 5 best matches)
- Okay, we've talked about two basic components of the crime, actus reus and mens rea, and we've talked about a whole bunch of sub-issues about mens rea, including mistakes of fact and mistakes of law. We now turn to the final elements of a crime, dealing with causation. The causation requirement in the criminal law serves as the link between the defendant's conduct, that is the voluntary act or maybe omission, the link between that 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 a homicide, for example, there must be some conduct on the part of the defendant, such as pulling the trigger, and there has to be the bad result, the death of another human being. A causal link between the voluntary act and the result is required. And it turns out that there are two causal requirements. First, the defendant must be an actual cause of the result or what is sometimes...
- So let's start with actual cause. The actual cause is a fairly straightforward issue analytically. What we're dealing with here is deciding what really happened in the real world. It's an empirical question, who or what caused the social harm about which we're concerned, for example, the death of the victim. Now, let me just stop here and say that the issue of causation occurs almost always in criminal homicide cases. That's where the issue comes up because you're dealing with a result, the death of a human being. So I'm going to spend all of my time using homicide as our example because that's almost certainly what you're going to be doing when you talk about causation in your class. So, in deciding whether a person is an actual cause, we're trying to decide factually in the real world what happened, who caused or what caused the victim's death. And the test courts use is called the but-for test. That's the test used at common law and in the Model Penal Code. Now, listen carefully...
- ...of what Jones did. It's not as if the doctor was going to be doing medical care on the victim anyway. So we would describe the doctor as a responsive intervening factor. The significance of that fact is that when the intervening cause is responsive, the law will hold the initial wrongdoer, in this case Jones, responsible for the result, and not shift responsibility to the responsive intervening cause, here the doctor. Why? Well, because the defendant brought the intervening act into existence by his own wrongful conduct, so it doesn't seem fair to then shift responsibility to this other intervening cause that he created. The only time a defendant will get off if there is a responsive intervening cause, at least under this format, is if the response, in our example, the doctor, if that response was totally bizarre. For example, Jones wounds the victim, the victim goes to the hospital, and our doctor, our response of the intervening cause, decides to strangle the victim. Now,...
- Okay, we have now reached a significant point in our lectures, because we have finished our discussion of the basic elements of a crime. Basically, five elements. And yes, you should look for them in any set of facts, preferably in the order that I've given you already. Voluntary act, that is, did the defendant's conduct include a voluntary act? Footnote, sometimes, rarely, you can substitute an omission, a failure to act. Second element, look for the social harm as defined in the offense. For example, breaking and entering the dwelling house of another at night for burglary. Or non-consensual intercourse by a male with a female not his wife, common law rape. Or the killing of a human being by another human being. The social harm of criminal homicide and so on. Third element, Mendreya. Although there are some strict liability crimes, almost all crimes, almost all have a mens rea. Fourth element, actual cause. Fifth element, proximate cause. Those are the five elements. I would...
- ...of result. There are likely to be multiple causes of the harm. But, in a criminal trial, we aren't going to hold the president, or A's husband for that matter, criminally responsible for the resulting harm. Their causal connection is simply too tangential to hold them responsible. So proximate causation ultimately is a policy issue. And it's proximate causation that's going to get the president and the husband off the hook. Essentially, what we do with proximate causation is is look at all of the actual but for causal candidates and decide which one of them should be held causally responsible for the resulting harm. You can consider proximate causation a little like a police lineup. In the lineup, you have all of the actual causes of the social harm, all of the actual causes of the death. Proximate cause is the moment when you pick the particular person or force and say that he or she or it is the proximate cause, the legal cause of the result. And as I said, that's ultimately...
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Insanity 5 results
- Now, a third test of insanity which was the majority rule in this country for a very short time, but isn't anymore, and that's the Model Penal Code Test. The Model Penal Code says that a defendant is not responsible for her criminal conduct if at the time of the crime, as a result of a mental disease or defect, the actor lacked substantial capacity, either to appreciate the criminality or wrongfulness of the conduct, or lacked substantial capacity to conform her conduct to the requirements of the law. So, basically, the Model Penal Code has its own two prongs, and the two prongs look a little like a combination of McNaughton, and the control test.
- 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 free will that healthy people possess. Therefore, the insane do not deserve punishment. That, at least, is the retributive underlying explanation for the insanity defense. We simply don't want to go around condemning and stigmatizing people as criminals if they're insane. As for utilitarians, the insane are not likely to be deterrable. And there's no general deterrence value in punishing the insane. Yes, we want to take these people off the street and protect society and protect even the individual against or from himself, but we don't want to condemn and stigmatize this person. We want to give them medical or psychiatric care.
- Finally, there's a fourth definition of insanity. Your casebook or teacher might mention it briefly. It's called the product test or sometimes called the Durham, D-U-R-H-A-M test, based on a case called U.S. versus Durham. The test is currently used in only one jurisdiction, New Hampshire. It's simple but controversial. Under this standard, a person is not guilty of an offense if the person's criminal conduct was the product of a mental illness. In essence, but for the mental illness, would the defendant have committed this crime? If the answer is the defendant would not have committed the crime, but for the mental illness, that person is deemed legally insane.
- Now, turning to the alternative prong, a person under the Model Penal Code is also insane if due to mental disease or defect, the person lacks the substantial capacity to conform their conduct to the requirements of the law. So, that's the control test. That's the volitional test, but it avoids the misleading idea that the act must be irresistible or impulsive. It's enough that the person lacked substantial capacity to conform their conduct to the law.
- All right. Now, we turn to a third excuse defense, insanity. It is, historically, the excuse that the common law has recognized longer than any other. But it's also the most controversial. We go through cycles in our history in which there's a strong public desire to abolish the insanity defense, particularly after any highly publicized insanity acquittal. And then, the public animosity subsides and the defense remains. That said, there are five states today that have abolished the insanity defense. But the remainder of the states, and the District of Columbia, and the federal courts continue to recognize insanity as an excuse. Why do we excuse insane people? Well, insanity is an excuse because we want to distinguish in the law between the mad and the bad, between sickness and evil. We want to punish those who are bad, but we want to give medical care to people who are sick.
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Degrees of Murder 8 results (showing 5 best matches)
- So many states have divided murder into degrees. First degree, most serious. Second degree, less serious. And you will almost certainly be called upon by your professor to analyze some specific criminal homicide statutes. Now, look, there's no way to say that first-degree murder means any particular thing because every statute must be looked at specifically to see what it says.
- All right, now, finally, let me briefly mention the Model Penal Code, because the MPC provisions of criminal homicide are very different from what we've said so far. First, the Model Penal Code doesn't have the concept of malice aforethought. Because remember, the only mens rea terms under the Model Penal Code are purposely, knowingly, recklessly, and negligently.
- But before we leave murder, I need to talk about the statutory forms of murder because we've been talking only about the common law. You'll remember that I said earlier that a lot of states many years ago concluded that the common law definition of murder was too harsh and that not all murders should be treated alike, that not all murders should be, if you will, death penalty eligible.
- What about second-degree murder? Well, some statutes, in fact, a lot, will say, for second-degree murder, simply, and I quote, "all other kinds of murder are second-degree murder." End of quote. Now, what in the world 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 covered in the first-degree murder statute, then, by matter of elimination, they fall into second-degree murder.
- So on an exam, if you've been asked to discuss murder in the common law, well, you shouldn't even utter the words degrees of murder. If you're going to answer your exam based on a statute, however, then look at the statute. If the statute you use divides murder into degrees, then you need to discuss first versus second-degree murder based upon that statute.
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Criminal Solicitation & Conspiracy 5 results
- Now, you can solicit in person, but also by mail, by letter, by email. If I mail a letter to you asking you to commit the crime, I'm guilty the moment I mail that letter. The letter doesn't even have to arrive at your mailbox. I'm still guilty of solicitation. Now, suppose Harold solicits Linda to commit a murder, and Linda nods her head yes, or says yes in any other way, thus manifesting an agreement that she will commit the crime that was solicited. Now we have still a different crime, the crime of conspiracies. At common law, a conspiracy is an agreement between two or more persons to commit an unlawful act. That agreement, again, requires an intention, a specific intention on the part of both people to have that crime committed. Assuming you do have two persons, both of whom have the specific intent to have the crime committed, then the moment of the agreement, the moment you have what the law sometimes calls a meeting of the minds, then the crime, the common law crime of...
- Now, a warning, many states by statute require some overt act in furtherance of the conspiracy before the conspiracy is said to have actually occurred. But I also need to warn you that even in a jurisdiction that requires a so-called overt act, that act doesn't have to be anything serious. It doesn't have to add up to, for example, an attempt. If A and B, for example, agree to murder C, in common law, we have a conspiracy right there. But even in a state that requires an overt act, that overt act could be as simple as buying the gun, or as simple as the act of finding a roadmap to figure out how to drive to the scene of the eventual killing. The Model Penal Code is among those jurisdictions, by the way, that requires an overt act in furtherance of the conspiracy. But the common law does not.
- Now, at common law, there is also what is called the plurality requirement to conspiracy. Because remember, the definition of conspiracy is two or more persons who agree to commit the crime. The plurality requirement means that there must be two or more persons, both of whom have truly the requisite mens rea. So for example, if A and B agree to rob a bank, but B, in fact, is an undercover police officer who only pretended 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 persons with the actual intention of to commit the crime in question. And since the undercover officer didn't have that intent, then we don't have two people with the requisite mendrea. And so, please note, that means that not only B, the undercover officer, is not guilty of the conspiracy, but A, the bad guy cannot be convicted of conspiracy because you can't conspire, if you will, with yourself. That's the plurality requirement....
- Now there's another concept to understand in common law conspiracy, and that's a special rule called the Wharton's Rule. Wharton, W-H-A-R-T-O-N. Wharton's Rule holds that there can be no conspiracy if the underlying crime, the crime that they're conspiring to commit, by definition, that underlying crime, by definition requires a combination of two persons. For example, think about it. By definition, how many people does it take to commit a murder? Well, obviously it just takes one, by definition. How many people, by definition, does it take to commit a rape? Just one. Now, obviously, there is a victim in these cases, but it takes only one person to commit the crime of murder or rape. How many people does it take to rob? One. How many people does it take to sell marijuana? Think about it. That crime takes two people. There's no way to sell something unless you have a willing buyer as well as the willing seller.
- ...I want to point out to you that the crime of conspiracy can be a lot more complicated than just what I have described. In fact, some law schools actually offer a special course just on the crime of conspiracy. But most teachers don't get into the more complicated issues, and that's why I haven't either. One final point about solicitation and conspiracy. If A asks B to murder C, and B says no, then, as we saw, A is guilty of solicitation. But if B says yes to the solicitation, we now have a conspiracy. A conspiracy to commit murder of which both A and B are guilty. But in that latter hypothetical, what happens to the solicitation that already occurred? The answer? The solicitation merges into the conspiracy. That is, A, who solicited B to commit the murder, will not be convicted of solicitation if B agrees. He'll simply be guilty of the conspiracy. The solicitation drops out of the picture. So basically, those are the three most common inchoate offenses. Attempt, solicitation, and...
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Necessity 6 results (showing 5 best matches)
- So let's consider that person trying to get out of the raging tornado. Let's assume that he goes to the front door, knocks. You're not home. So he breaks the window, gets in, goes into the cellar, seconds before the tornado touches down. Now, the intruder is not a burglar because he didn't break and enter your home with the intent to commit a felony inside. But he would be chargeable with criminal trespass. All right, so what will he do when he's charged with trespass? He'll claim necessity.
- All right, so what are the elements of this defense? First, common law, the defendant must reasonably believe that there is a threat of imminent harm to himself or to others or even to property. That's the first element. Second, the defendant must reasonably believe that the harm he's going to commit is the only way to prevent the threat of harm from occurring. In short, the defendant is in a terrible position, has only two choices, breaking the law or suffering serious imminent harm. Third, the person must not be at fault in creating the emergency that necessitated the situation. You can't get yourself into the pickle through your own negligence or recklessness and then claim necessity. And finally, and most basically, it must in fact be the case that the harm that the defendant caused 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 must conclude that the defendant did...
- Okay, so we've now talked about seven justification defenses. Self-defense, defense of others, defense of personal property, defense of habitation, the two law enforcement defenses, namely prevention of a crime and prevention of escape. And finally, we looked at this residual defense, the defense of last resort, the defense of necessity. Now, a justification defense, as I explained at the outset, is a defense that suggests that the person, in fact, did the right thing under the circumstances, or at least did nothing wrong. But there are other defenses. We call them excuse defenses. And we now turn to those defenses.
- Now, this case has been interpreted various ways. The case can be read to suggest that maybe the need to kill that youth in this case wasn't yet imminent. Maybe if they had waited a little longer to see if they were going to be discovered, maybe the defense would have been allowed. But there's a lot of language in this case that has caused most commentators to believe that this case stands for the more basic proposition that at common law, a person may never kill an innocent person, even if doing so would save a greater number of innocent lives. Now, if that's a correct reading of the case, and I would say that most courts in this country do follow that interpretation, then no matter what the situation may be, even if one wants to kill an innocent person to save a hundred innocent people, the defense of necessity will not apply.
- The Model Penal Code, however, has taken the opposite position. Section 3.02, the choice of evil's defense, may be used for any crime, so long as you meet the basic elements of the defense, including that it was the lesser of two evils. So killing one person to save one life, that wouldn't work. But to save two lives, that could meet the standard. Now, I should also point out that the Model Penal Code says that the threat of harm need not be imminent. So unlike the common law, all the defendant must show under the Model Penal Code is that he reasonably believes some harm would befall him or another, that he in fact chose the lesser of two evils, and that he was not reckless or negligent in creating the emergency situation. But imminence drops out of the picture.
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Intoxication 4 results
- So how do we state the rule? Well, when dealing with voluntary or self-induced intoxication, 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 may want to return and remind yourself of the distinction.
- The Model Penal Code retains a basis for acquittal in cases of self-induced intoxication. Since the Model Penal Code effectively treats all offenses as if they were specific intent, the common law specific intent rule generally applies to all crimes under the Code. Pretty simply, if the voluntary intoxication negates the mens rea of the crime, the defendant must be acquitted. You should look at Model Penal Code Section 2.08 for this.
- But, and you knew there would be a but, but voluntary intoxication may still serve as what we might call, not an excuse, but a mens rea defense. In other words, voluntary intoxication can work in the same way that mistakes of fact serve. Remember back in our discussion about mistakes of fact that sometimes a mistake may serve to demonstrate that the defendant simply did not have the required mens rea for the crime. Well, the same thing can happen with voluntary intoxication. Intoxication may, in some cases, negate the mens rea required in the definition of the crime. And if it does, then an essential element of the crime has not been proven. So the defendant, as a matter of constitutional law, should be acquitted. If Amy is so drunk when she killed somebody, that she truly didn't realize that she was shooting a person, then she doesn't have the intent to kill and shouldn't be convicted of intentional murder.
- Most crimes, as I've mentioned, are general intent crimes. And the rule is that voluntary intoxication is simply never a defense, ever, to a general intent crime. For example, a person commits rape, which is a general intent offense, when he's so drunk that he doesn't even realize that the female has not consented. He's guilty. Period. Reason? Well, to be guilty of a general intent crime, you simply have to show that the defendant committed the actus reus of the crime with a morally culpable state of mind. And the law considers that the act of getting so drunk that you don't even know what you're doing is evidence of a morally culpable state of mind. In short, voluntary intoxication constitutes the requisite culpability to be guilty of any general intent crime.
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Law Enforcement Defenses 5 results
- Well, that extreme rule was explained by a simple common law fact. At original common law, there were only a few felonies, six or seven. And every felony at common law, even nonviolent felonies, carried a mandatory death penalty. So the common law theory was that anyone who committed a capital crime had basically forfeited his right to life. He was going to die anyway. He was going to be executed. So if the officer simply wanted to speed up the process, he could do so. Of course, today, the death penalty is only available for murder, and even then it's rare, so you can't argue that a felon has always forfeited their right to life. Today, therefore, deadly force is usually limited to 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.
- There are two more justification defenses, which I'm going to talk about together. Sometimes they're called the law enforcement defenses. Quite obviously, it's justifiable for the police, and even others, but particularly the police, to use force to prevent crimes from occurring. That's the first of the law enforcement justification defenses, sometimes called the crime prevention defense. When may a person use deadly force to prevent a crime? Well, first, deadly force may never be used to prevent a misdemeanor. It may only be used to prevent the commission of a felony.
- The original common law rule was that deadly force could be used, if necessary, to prevent any felony. If the person, typically a police officer, reasonably believed the deadly force was the only way to prevent the felony from being committed, at original common law, deadly force was justifiable as to any felony. Today, the rule is more limited. Deadly force may generally only be used if it reasonably appears necessary to prevent a forcible felony. In other words, the same types of felonies that we were talking about with the defense of habitation. So that means if a police officer observes someone about to commit a theft, which is a felony in many cases, deadly force would not be permissible because that's not a forcible felony. On the other hand, if the officer observes, for example, a robbery about to be committed, or a rape, or arson, then deadly force would be permitted to prevent that crime from occurring if it reasonably appears to be necessary.
- Now, the related law enforcement defense involves the use of force not to prevent the crime from occurring, but to effectuate an arrest after the crime has already occurred, or to prevent the arrestee from escaping. Normally, this defense comes up, as you might expect, in the context, again, of police officers. And today, news stories about police use of deadly force on unarmed individuals has become a major area of controversy. The rule here at original common law was exceptionally broad. The police could use deadly force to prevent the escape of any felon. In fact, the rule was the police officer didn't even have to demonstrate that it was necessary to use deadly force. In other words, if a felony had occurred and the officer was trying to make an arrest or prevent the escape of the felon, he could shoot and kill that person, period. He could shoot him in the back if he wanted, and he could do so even if the felony happened to be a nonviolent offense. No requirement of necessity,...
- Okay, let's take stock of where we are on these justification defenses. Because, you know, the defenses that I've talked about sort of fit in pairs. There is self-defense and defense of others, bodily protection defenses. There is defense of property and defense of habitations. They deal, the first, with personal property, the second, with the home. And remember, no deadly force can be used to defend personal property, but yes, as to habitation. And then we have the law enforcement justifications defenses. Defenses five and six, crime prevention. And if it's too late to prevent the crime, effectuating the arrest or preventing the successful escape from the arrest. That leaves us with one remaining justification defense. So let's turn to that one.
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Theft Offenses part 2 7 results (showing 5 best matches)
- Okay. So, so much for the theft crimes. And I will note in passing that in light of technology, computers, and the like, legislators have had to enact new laws to deal with wrongful transference of property technologically. But even there, some of the common law concepts that I've been discussing come into play.
- But again, the common law came to the rescue of the person whose property has been taken. They created a fiction called continuing trespass. Here's what the doctrine means. When Jill wrongfully took the car, intending to return it the next day, she did commit a trespass because she didn't get permission. The common law then decided that when somebody trespassorily takes possession of another person's property, then every split second she retains wrongful possession of the property, in this case, the car, that constitutes a brand new trespassory taking so in a sense there are really an infinite number of trespassory takings because every instance It's treated as a new trespassory taking, a continuing trespass. So, if the person takes property wrongfully, but intends to return it, then when that person changes her mind and decides not to return it, the court will say, "Aha, there is the intent to steal." And that intent to steal occurred at that instant when a new trespassory taking...
- All right, let's move on. As we've said, larceny is the trespassory taking and carrying away of personal property of another. So let's now talk about the element of carrying away. At common law, if a person carried property away, even so much as an inch or less, they have legally speaking met the element of carrying away. So if our bad guy trespassorally takes someone else's property, the moment he takes just one step away, the carrying away element is satisfied. Simple as that.
- For example, John cuts down a tree on Jane's property without her permission. and carries it away. Well, if he cuts the tree down and carries it away right then, the common law says that he's still carrying away real property, not personal property, because the tree was attached to the land. So that's not larceny. But what if John cuts down Jane's tree, leaves it there on her property, and then comes back later, maybe a few hours later, with a truck and lugs away the timber that he cut down? Well, now that's larceny. Because once the tree was severed from the land and left there to sit on Janes' land, it now became her personal property. So when John returns and carries it away, that would be a trespassory taking and carrying away of the personal property of 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 important matter to remember here is, again, that larceny focuses in on possessory rights, not ownership rights. So, if you think back to my very initial hypothetical where I leased you my car for a year and then I take it from you early. during the period when you have every right to retain it. From the point of view of larceny law, I, the owner of that car, have trespassorily taken and carried away the personal property "of another" because that car belonged to you in a possessory sense. And therefore, that's larceny.
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Mistake of Fact 11 results (showing 5 best matches)
- At common law, when we're dealing with mistake-of-fact claims, the first thing you need to do as a student or as a lawyer is correctly characterize the crime for which the defendant has been charged. That is, is the crime for which the defendant has been charged a strict liability crime, a general intent crime, or a specific intent crime? Aha. Those terms we discussed before are coming into play. Indeed, it is critically important to be able to properly identify an offense as general intent, or specific intent, or strict liability because the common law rules regarding mistakes of fact differ depending on which type of crime is involved. So again, anytime you're dealing with a mistake-of-fact claim in a jurisdiction applying traditional common law principles, the first thing you should do is label the crime.
- Now, all of these mistakes, the three hypos, 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? Well, we're going to discuss the common law answer to that and the model penal code. And I'm going to start with the common law, which is unfortunately more complicated.
- Now, that leaves us the third category of crimes, general intent crimes, and our third hypothetical of Jack and Jill and the rape. Here, I'm afraid the common law is a little less straightforward, but it will help if you think back again to what general intent crimes are all about. Remember, with a general intent crime, all that normally needs to be proven is that the defendant committed the actus reus of the crime with a morally culpable state of mind. Take the crime of rape, defined at common law as sexual intercourse by a male with a female, not his wife, without her consent. Now, I use rape in a number of places in these lectures, not only because it's a very serious crime, so we should care and worry about this crime, but also because it's a classic example of a general intent crime at common law. Again, you'll notice that there's no mens rea even mentioned in the traditional definition because, as a general intent crime, all that's required is proof that the defendant...
- ..., but morally wrongful. So let's do it with the Prince case. What did Prince think he was doing? Well, if you gave him truth serum, he would have said, "I thought I was taking an 18-year-old female away from her parents." Okay, so then the court would ask, under the moral wrong doctrine, is taking an 18-year-old female away from her parents an immoral act? The answer of the court in the Prince case, was yes. Taking an 18-year-old girl, and that's how the court talked about it, away from her parents against their wishes is a morally wrongful act. Bingo! There's the mens rea, doing a morally wrongful act. Essentially what this means is that by committing that 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 he was taking an 18-year-old girl away from her parents, and even though that wouldn't have been a crime, it's a morally wrongful act,...
- Okay, let's move on. Let's consider Alice and that 14-carat gold ring. Alice, you will remember, was charged with larceny. Well, I'm going to talk about larceny more later in this audio. But a common law definition of larceny is the trespassory, or if you will, non-consensual, taking and carrying away of the personal property of another with the intent to steal that property. Now that latter phrase, intent to steal, is a shorthand under the common law for the following. What intent to steal means is the intent to permanently deprive the owner of the property. So, breaking down this offense, the actus reus of larceny is the non-consensual taking and carrying away of the personal property of another. The mens rea is the intent to steal, that is, the intent to permanently deprive a person of their property. Well, I said first thing you do with any mistake-of-fact claim at common law is determine whether the offense charged is specific intent, general intent, or strict liability. What...
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Defense of Property and Habitation 6 results (showing 5 best matches)
- A third justification defense is the defense of property. Here, there is a bright line common law rule. A person may never, ever use deadly force simply to protect one's personal property. If someone is about to drive your car away, at common law, you can't kill him in order to avoid losing your car. If someone's going to take your last dollar from your wallet, you can't use deadly force to protect that dollar. Deadly force simply may never be used at common law to protect personal property. But be careful. The defense of property can easily merge into some other justification defense that permits deadly force. For example, you may not use deadly force to protect your car from being stolen, but you're certainly permitted to use moderate, non-deadly force to protect your property. That's allowed if necessary.
- Now, I said that deadly force is never permitted at common law in defense of property, and that's true enough. But there's a very similar defense that some jurisdictions even call it the defense of property. But it's really properly understood as a separate justification defense. The defense of habitation, namely your home, your dwelling place. It's a piece of property, but it's much more. Your home is special. Your home is supposed to be your castle, your sanctuary. It's supposed to be the one place where you're entitled to privacy and freedom from unlawful, unwanted external intrusions. So when a person seeks unlawfully to enter your castle, they're violating your rights of privacy. They're violating your repose. They're invading your sanctuary, your right of habitation. The home has always had a special place in the common law, and therefore the law says that a person may use deadly force under certain circumstances to protect the home.
- So, if you can keep a person out of your house who doesn't belong there without using deadly force, yeah, use the lesser method. But if it reasonably appears that the only way the home dweller can prevent an unlawful imminent entry of an intruder, under the original common law, deadly force could be used. Now, if you look at that rule carefully, you'll see it's pretty broad. Notice there's no requirement that the home dweller believe that the person who's unlawfully entering is going to do any serious harm inside the house. It's simply enough that the intruder is going to enter. Period.
- So let's say you go out, you try to stop the would-be car thief from stealing your car. You try to push him away from your car. Or you punch him in the face. All of that would be justifiable. But now suppose the car thief pulls out a gun and turns it on you. Well, now, of course, you can use deadly force because what started as a defense of property case has become a self-defense case. I also want to warn you, some states, by legislation today, do permit a defendant to use deadly force to protect some personal property, most especially their automobil. But those statutes conflict with the common law, and are still in a minority.
- Now, the original common law rule was amazingly broad, and is followed today by a small minority of jurisdictions. It's a good starting point. That rule is, or was, that a person may use deadly force against another if he reasonably believes that the other person is imminently and unlawfully about to enter the dwelling. And if deadly force is necessary, to prevent that intrusion. So notice we have the three requirements we've noted before. Imminent entry, unlawful entry, and necessity to use deadly force to prevent that entry. Again, overlaid over all of that is that the defendant must be acting based on a reasonable, but not necessarily correct belief.
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Components of a Crime 1 result
- Okay, you've got the tools. We're going to now begin to build the structure of a crime. Basically, a crime, any crime, will have two components. The actus reus, actus, A-C-T-U-S, reus, R-E-U-S. The actus reus of the crime, and there must be a mens rea, mens, M-E-N-S, and rea, R-E-A. 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, but we don't want to have happen. The breaking and entering of the dwelling house of another at night, burglary. The killing of another human being, criminal homicide. Intercourse by a man with a woman without her consent, rape. These are examples of the actus reus of crimes, things that we don't want to have happen.
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Diminished Capacity 3 results
- So the partial responsibility version of diminished capacity simply allows us to convict a person of a crime thought to be more proportional to that person's culpability. The Model Penal Code recognizes this defense when a person suffers from what it calls extreme mental or emotional disturbance for which there is a reasonable explanation or excuse. I'll have a bit more to say about this defense when we turn to criminal homicide. But to summarize diminished capacity, first, there is the mens rea model. Here, the defense is used when a person, because of any mental condition, lacks the specific intent required for the crime. But the defense does not apply to general intent crimes. And as we saw, some states don't allow diminished capacity for any crime, even specific intent crimes. The Model Penal Code does recognize the mens rea model of diminished capacity.
- Now let me give you a second example. This one was considered by the U.S. Supreme Court in the case of Clark v. Arizona. Clark was mentally ill. Nobody denies that. And because of his mental illness, he believed that a police officer was an alien. I mean, alien as from Mars. He believed that the alien police officer was trying to kill him. So Clark killed the officer and was charged with the crime of intentionally killing a law enforcement officer. Now, of course, if one accepts the testimony I just laid out, Clark didn't intend to kill a law enforcement officer. In fact, he didn't intend to kill a human being. He intended to kill an alien. Therefore, in most states, he would be acquittable on the grounds of the mens rea version of diminished capacity, in the way I described a few moments ago with our confused would-be burglar.
- ...state of Arizona bars the introduction of mental health testimony to negate mens rea. Arizona only allows mental illness evidence to prove insanity, exactly the opposite way from what Kansas did in the Collar [SP] case that we just mentioned. Well, is the Arizona approach constitutional? The Supreme Court held that the Arizona rule did not deny Clark due process of law, that it didn't violate the Constitution for the state of Arizona to bar mental health evidence to negate mens rea. 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 a state, if it chose to do so, to bar such evidence. So at least, as things now stand, it is constitutional for a state to abolish the insanity defense so long as they permit mental illness evidence to negate mens rea. And it is similarly constitutional to retain the insanity defense, but not permit mental illness evidence...
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Theft Offenses part 1 7 results (showing 5 best matches)
- Well, the common law obviously wasn't going to allow that argument to win. So, early judges created a legal fiction. They said that in that case, what I, Dressler, had done when that ring was handed over to me in the jewelry store was that I had custody of the ring, but the possession of the ring, more accurately, constructive possession of the ring, remained with the merchant. Now, why do we say that? Well, first of all, I was just a few feet away from the merchants. The merchant was present every moment I had physical custody of the ring. And he really did provide me only very limited rights over the ring. So, really, the merchant, as far as theft law is concerned, retained possession, albeit constructively, of the ring while I stood right there next to him. So, when I ran out of the store with that ring, at that instant, I basically converted what was custody into possession. Now, outside the jewelry store, I am in possession of that ring. The law can hardly say that the jeweler...
- Okay. We're now going to turn to another set of crimes. We're going to talk about those crimes in detail. And that's the crime of larceny and the related offenses of embezzlement and false pretenses. Now, I have to warn you, common law larceny is an intricate crime. There are a lot of legal fictions and hair-splitting distinctions that developed primarily for historical reasons. So, let's start with larceny. The common law definition of larceny is as follows, the trespassory taking and carrying away of the personal property of another with the intent to steal. Let me repeat it. The trespassory taking and carrying away of the personal property of another with the intent to steal. Now, I'm going to go through each of these elements one by one.
- Now, lots of problems come up in larceny law with what we mean by taking possession, the trespassory taking of possession, because a person could be in possession of property in various ways. For example, you might physically possess property, or you might have what the law would call constructive possession. Let me give you an example of constructive possession. I go to a jewelry store and I say, "Oh, I'd like to take a look at that ring." And the merchant hands me the ring. And I stand there, holding the ring, studying the ring, hemming and hawing over it. And then maybe a minute later, still holding the ring, I run out of the jewelry store with it. Now, suppose I were to come to the court and say, "Well, Your Honor, I can't be guilty of larceny. That was not a trespassory taking of possession because the jeweler consensually handed me that ring." Well, that's true. He did. The jeweler did hand it over to me in what appears to be a perfectly consensual manner. And I did say that...
- Custody versus possession is often a very big issue in common law larceny law. For example, suppose you were to go to a car dealer, and you said, "Ooh, I would like to test-drive that Prius over there." And the dealer says, "Sure. Here are the keys. Drive the car for 10 or 15 minutes. See what you think of the car." Okay, that's our hypothetical. So now, you have the car. You're test-driving the Prius, all by yourself. In my hypothetical, does the car dealer retain constructive possession of the car while you drive the Prius out of the parking area and drive it for 10 or 15 minutes? No, because the car dealer is no longer physically there, unlike the jeweler. As a practical matter, you have complete control over the property. Therefore, while you're away from the dealership, you have possession of the car. Indeed, you have the lawful, seemingly non-trespassory possession of the car because, after all, the dealer handed over the keys to you consensually.
- So, in the first example, we don't have trespassory possession. In the second, where the car dealer gets pushed out of the car, we have trespassory taking of possession at that moment. And by the way, footnote, pushing the dealer out of the car in that hypo, that's an act of force. So, that would actually convert what would otherwise end up as larceny into, guess what? Robbery. Because robbery is basically larceny by use or threat of force. So, all the elements you're learning right now about larceny also help you to understand the law of robbery.
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Defense of Third Persons 1 result
- There's really only one wrinkle in this analysis, and courts are split on this wrinkle. And the wrinkle is, suppose Carla, in my hypothetical, turns out that she's not an aggressor, but an undercover police officer lawfully arresting Bob. That's why Carla has a gun pointed at Bob. Now, assume that Albert was unaware of this. So he helps Bob when, of course, he shouldn't. What should the law do? Well, assuming Albert's mistake about the situation is reasonable, that is, that it was reasonable for him to think that Carla was an aggressor and not a police officer, what should our position be? What should the law do? Well, the courts are split. Most courts, including the Model Penal Code, favor the idea of protecting Good Samaritans like Albert. So most courts hold that a person like Albert should be allowed to continue to use the defense, if he reasonably believed, albeit incorrectly, that Carla was the aggressor, and therefore reasonably believed, although incorrectly, that Bob had a...
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Self Defense part 1 8 results (showing 5 best matches)
- All right, let's first talk about the reasonable belief requirement. The law does not require that a person be right to be correct as to the necessity to use deadly force. It's enough that the person honestly and reasonably believed that such force was necessary to combat what the person reasonably believed is an imminent, unlawful, deadly attack on her.
- If so, if one of these non-deadly alternatives appears reasonably possible, then I should use that approach rather than killing him, because then killing him was unnecessary. At original common law, even bad guys, even aggressors shouldn't be killed if there's an evident, less extreme solution.
- Our home is supposed to be our castle, our fortress, the place we can stay to protect ourselves. So the law says, and has always said, that we never need to leave that place of protection, in other words, retreat, to avoid killing someone who has wrongfully intruded into our home.
- And finally, specifically with self-defense, there is another issue that must be resolved, and that is, who started the conflict? Who's, if you will, the initial bad guy, the initial aggressor? We'll put the initial aggressor issue aside for a moment and deal with the other basic components of self-defense. And then we'll come back to that issue. At common law, basically speaking, a person is justified in killing in self-defense if at the time the actor used that deadly force, that person reasonably believed that such force was necessary to combat an imminent unlawful deadly attack at the hands of the other person.
- Well, as I said, she must reasonably believe that she's using deadly force to respond to an imminent, unlawful, deadly attack. So notice again the proportionality requirements. If somebody's gonna slap my face, and the only way I can avoid being slapped is to kill that person, I'm sorry, the law does not allow me to use deadly force as a response to a non-deadly slap. If I can duck, fine. If I can push the person out of the way, minor force, in other words, fine. That would be a non-deadly response to a non-deadly threat. But I may not use deadly force to respond to a non-deadly threat. Proportionality.
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- Publication Date: March 4th, 2024
- Subject: Criminal Law
- Series: Sum and Substance Audio
- Type: Audio
- 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.
