Criminal Law in a Nutshell
Author:
Kennedy, Joseph E.
Edition:
7th
Copyright Date:
2024
25 chapters
have results for criminal law
Chapter XVI Conspiracy 23 results (showing 5 best matches)
- One of the more unusual aspects of conspiracy law is that the object of the conspiracy need not always be criminal itself. Recall that in § 16.01, , conspiracy was defined as “an agreement to commit an unlawful [not necessarily criminal] act, or a lawful act in an unlawful [again, not necessarily criminal] manner.” The term “unlawful” can include civil wrongs as well as criminal.
- The second basis for punishing conspiracy is the maxim “in union there is strength.” When the union’s purposes are criminal, it is understandable that the courts and legislatures would think it necessary to attack this added strength. For this reason the common law regarded the formation of a conspiracy a “distinct evil” from the crime contemplated.
- stringent. For example, ignorance or mistake of the law is sometimes recognized as a defense to conspiracy, especially when the offense is malum prohibitum and the alleged conspirators’ motives are pure. Thus, in the court held: “[T]o make an agreement between two or more persons, to do an act innocent in itself, a criminal conspiracy, it is not enough that . . . the act which was the object of the agreement [be] prohibited. . at 92 (emphasis added). (Compare the requirement of knowledge of the law when one is accused of acting willfully. § 8.07,
- , the court held that a woman who provided customers to a criminal abortionist could be liable for each abortion he performed, even if the particular woman upon whom a given abortion was performed was introduced to the abortionist, not by the defendant, but by a fellow conspirator whom the defendant had never met. As the framers of the M.P.C. said of a closely related situation: “Law would lose all sense of just proportion if in virtue of that one crime [conspiracy], each [conspirator] were held accountable for thousands of offenses that he did not influence at all.” M.P.C. Tent. Draft 1, p. 21.
- [Statutes] relat[ing] the general conspiracy sentence to that provided for the criminal objective.” M.P.C. Tent. Draft 10, pp. 177–78.
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Preface 1 result
- I was delighted and honored when West Academic Press asked me to update Arnold Loewy’s Criminal Law Nutshell. Arnold was beloved and revered both at the University of North Carolina where he taught for most of his career and among criminal law scholars across the nation. In bringing this book up to date I have tried to preserve Arnold’s distinctive voice and his judicious, balanced vision of the criminal law.
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Perspective 5 results
- Finally, we return to the limitations on the criminal law, which is where this perspective began. Thus, the study of criminal law goes round and round, and the diligent student should stay on for several cycles.
- Just as Columbus discovered that the world is round, the criminal law student should discover that this subject does not fall off the end of the last page of this or any other book. Rather, like the world, it continues at the beginning. To illustrate, the last part (Part VII) of this book is concerned with two major limitations on the criminal law, lack of notice and lack of harm. The rationale for these limitations are apparent when one examines Part I of the book and becomes familiar with the purposes of punishing one as a criminal. There is obviously no utility in reforming, restraining, wreaking vengeance upon, or deterring one who had received no prior notice of the illegality of his conduct. Similarly, when no significant harm has been done, there is no need to resort to the punitive ends of the criminal law.
- The remainder of the book should also be evaluated in light of the reason for the criminal law as developed in Part I. Thus, in examining the homicidal crimes in Chapter II, the other crimes against the person in Chapters IV and V, and the crimes against property in Chapter VII, the student should constantly try to ascertain the criminological basis for each of the distinctions presented. Do premeditated killers really require more reformation, restraint, retribution or deterrence than other types of killers? Is a felon who inadvertently causes death significantly different from one who does not? Why is robbery punished so much more severely than grand larceny? A student who has thought through these and other similar questions can be expected to have
- Part III (Ingredients of Crime) relates directly to the purposes of punishment. To punish a person who acts with no mens rea at all is normally as purposeless and at least as counterproductive as punishing a person under a vague statute. If by hypothesis, a person is trying to adhere to the law and is diligent in his effort to do so, restraint, reformation, retribution, and deterrence are all inappropriate. The strict liability type of crime, discussed in § 8.04, is an exception to this principle, but the reasons for and limitations of this exception should be clearly understood.
- Part V presents the burden of proof which provides an opportunity to rethink the relative place of all of these concepts. When we require the State to prove something beyond a reasonable doubt, we do so because the point at issue is so important that we do not want to risk a conviction if the point is in doubt. The examination of Part VI focuses on inchoate criminality which is relatively high in mens rea and low in actus reus. It also examines the dangers of group criminality which are such that special complicity and conspiracy laws have been thought necessary to deter such activities as well as to reform and restrain those who would engage in them. The great problem here is in ascertaining who, other than the first degree principal, has demonstrated sufficient culpability to warrant condemnation as an accomplice or coconspirator. (Chs. XV and XVI.)
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Chapter XII Burden of Proof 10 results (showing 5 best matches)
- At first glance, burden of proof would appear to be a procedural issue with no direct relevance to substantive criminal law. Deeper analysis, however, reveals such a close relationship between the two that burden of proof ought to be included in a comprehensive study of the criminal law.
- Relevance to Substantive Criminal Law
- factors in holding that the Due Process clause precludes criminal conviction unless the State proves beyond a reasonable doubt every fact necessary to constitute the crime. First, from the perspective of the criminal defendant, an erroneous conviction results in a substantial and largely irreparable loss of liberty and standing in the community. Second, from the perspective of the criminal law, much of its moral force would be lost if large numbers of innocent people were thought to be languishing in prisons because they couldn’t prove their innocence. Finally, from the perspective of the ordinary citizen going about his business, it is important to know that if he is ever accused of crime, a conviction will be impossible to obtain unless the State can prove every element of the crime beyond a reasonable doubt.
- Most issues relevant to criminal liability have to be established by the State beyond a reasonable doubt (see § 12.02, ). Put differently, the issue of proximate causation is so important to criminal liability that we refuse to convict somebody when there is merely a reasonable possibility that he did not proximately cause the death.
- Maine argued that inasmuch as provocation did not affect the defendant’s liability for “the crime” of criminal homicide, imposing the burden on the defendant to prove mitigation did not remove the State’s obligation to prove every fact necessary to constitute the crime. The Court rejected this argument, holding that the difference in lost liberty between a murder and manslaughter conviction is sufficiently great that the State cannot allow a murder conviction to be upheld unless it proves malice aforethought (
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Chapter XVIII Limitations of the Criminal Law 28 results (showing 5 best matches)
- Although most Americans think of their criminal laws as having been codified, many states recognize common law crimes. Even in those that do not, it is necessary to resort to the common law to ascertain the meaning of statutory crimes. For example, a statute might say that rape is punishable by five to twenty years imprisonment, but fail to define rape, thereby leaving the definition to the common law.
- The major problem with common law crimes is notice. If the specific activity was punishable at early common law, or under a prior decision of the State Supreme Court, no significant problem is presented. When, however, the activity has not been held to be criminal prior to the conduct, a serious argument of no fair notice can be made.
- One of the great debates among criminologists is the extent to which the criminal law ought to concern itself with “victimless crime.” To some extent the debate is tautological in that practically all would agree that if there truly were no victim, the act should not be punished. Some would argue, however, that the “victim” need not be any particular individual. They would argue that tort law compensates individual victims, whereas the criminal law is designed to punish those who victimize society. (See § 1.01
- The United States Constitution forbids either the Federal Government (Art. I, § 9, cl. 3) or the states (Art. I, § 10, cl. 1) to enact an ex post facto law. In , the Supreme Court defined an ex post facto law as: “1st. Every law that makes an action done before the passing of the law, and which was innocent when done, criminal; and punishes such action. 2d. Every law that aggravates a crime, or makes it greater than it was when committed. 3d. Every law that changes the punishment, and inflicts a greater punishment, than the law annexed to the crime, when committed. 4th. Every law that alters the legal rules of evidence, and receives less, or different, testimony, than the law required at the time of the commission of the offence, in order to convict the offender.” (emphasis deleted)
- Perhaps the strongest argument against this largely unsuccessful attempt to outlaw private consensual activities is the psychological impact on the populace. With so many of our citizens having committed “crimes”, one or both of two interrelated undesirable reactions tends to emerge: first, a person might acquire a general disrespect for the law for making such pervasive conduct criminal; and second, he may acquire a disrespect for himself, viewing himself as a criminal. These attitudes are especially prevalent among college marijuana users whose friends have been arrested for marijuana use. Indeed, even those who do not use marijuana may lose respect for the law by seeing their friends, whom they respect as good people, arrested for using or possessing marijuana.
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Chapter I Punishment 27 results (showing 5 best matches)
- Since the criminal law seeks to punish rather than to compensate, there should be something about each course of conduct defined as criminal that renders mere compensation to the victim inadequate. This follows from the truism that no human being should be made to suffer if such suffering cannot be justified by a concomitant gain to society.
- Before an intelligent study of criminal law can be undertaken, it is necessary to focus on the single characteristic that differentiates it from civil law. This characteristic is punishment.
- The Distinguishing Feature of the Criminal Law
- Critics of this position maintain that most prospective criminal defendants are unaware of the sentences that courts in fact impose, and that even those that are aware do not tend to be the type of people who carefully calculate possible loss as well as potential gain. Furthermore, there is evidence that factors apart from the law, such as religious indoctrination or peer expectations tend to influence a person’s behavior to a greater extent than the criminal law. Finally, opponents of the deterrent theory point to the actual crime rate to show how ineffective deterrence really is. The classic illustration from earlier times is the number of pickpockets who were said to have preyed upon people who had come to watch other pickpockets being hanged.
- Proponents of the deterrence theory maintain that prospective criminals have at least a general idea as to how their crimes will be punished and that this knowledge does influence their thinking, at least to some degree. They further contend that the importance of non-legal factors in shaping a person’s conduct does not negate the importance of the law but simply suggests that the law is not the only factor governing a person’s conduct. Finally, they suggest that the efficacy of the deterrent theory can be measured not by the number of criminals it has failed to deter, but can be measured by the number it has in fact deterred. Specifically, the question is not how many pickpockets exist in spite of the penalty against them, but how many more would there be without such a penalty.
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Chapter VIII Mens Rea (Intent) 26 results (showing 5 best matches)
- It is doubtful that any maxim in the criminal law is better known than “ignorance of the law is no excuse.” This maxim has on occasions been justified by the proposition that no person is to be superior to the law (sometimes called the principle of legality). That is, if ignorance of the law were recognized as a defense, the defendant’s knowledge rather than the law of the land would determine what he could or could not do.
- A sounder justification for rejecting the defense is the ease with which it can be fabricated. One can envision thousands of criminal defendants plaintively pleading, “But I didn’t know it was against the law.” Of course, one could discount this fear because although the defense can be raised frequently, it will not succeed very often. Nevertheless, the presence of such a defense could encourage one to violate the law, thinking (albeit incorrectly) that he could always say that he didn’t know he was violating the law.
- Support of criminal liability without fault is far from unanimous. Apart from the obvious injustice to the individual, many contend that making criminals out of nonculpable people tends to cheapen respect for the criminal law (“if that respectable person down the street has committed a crime, why shouldn’t I?”). Compare § 18.04
- Part II dealt with particular crimes or with problems usually associated with those crimes. The remainder of the book (like Part I) applies to criminal law generally.
- Under the criminal doctrine of transferred intent, the intent is deemed to follow the criminal act regardless of who turns out to be the victim. This explanation obviously indulges the fiction that A’s criminal animus toward B is transferred to C, resulting in A’s guilt of a battery of C. Despite its fictitious nature, the doctrine of transferred intent has been accepted by the courts.
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Title Page 3 results
Chapter X Insanity 21 results (showing 5 best matches)
- When an especially brutal or senseless killing transpires, it is not uncommon for the average citizen to conclude that “he must have been insane, because sane people don’t do this.” In a sense this may be correct. Such a person probably is insane in the sense that his mental processes have permitted him to deviate so far from societal norms that psychiatric treatment may be required prior to his becoming fit to return to society. This, however, is not the sense in which the term “insanity” is used in the criminal law. Rather, the insanity defense is limited to separating those otherwise guilty criminal defendants for whom criminal sanctions are inappropriate from those for whom criminal sanctions are appropriate. The necessity of this limitation is manifest. Were it otherwise, a murderer could assert insanity as a defense successfully simply by acting in a brutal or senseless manner.
- The test of insanity under the M.P.C. is as follows: “(1) A person is not responsible for criminal conduct if at the time of such conduct as a result of mental disease or defect he lacks substantial capacity either to appreciate the criminality (wrongfulness) of his conduct or to conform his conduct to the requirements of law. (2) As used in this Article, the terms ‘mental disease or defect’ do not include an abnormality manifested only by repeated criminal or otherwise antisocial conduct.”
- has been criticized for not conforming to modern psychiatric notions of insanity. This criticism, however, ignores the fact that the insanity defense is not designed to define psychiatric illness, but to ascertain who is or is not an appropriate subject for the criminal law. See § 10.01
- Some states have enacted statutes known as sexual predator laws that allow for indefinite psychiatric confinement of an offender who is labeled as extremely dangerous and likely to recommit a sexual offense if released. These laws remain deeply controversial with many arguing that in many cases they constitute de facto life sentences given without the benefit of the constitutional protections that a criminal conviction requires.
- . Nevertheless, it did choose to adopt the M.P.C.’s concept of substantiality. Specifically, it provides that “[i]n any prosecution for an offense, it is an affirmative defense that when the defendant engaged in the proscribed conduct, he lacked criminal responsibility by reason of mental disease or defect. Such lack of criminal responsibility means that at the time of such conduct, as a result of mental disease or defect, he lacked substantial capacity to know or appreciate either: (1) the nature and consequence of such conduct; or (2) that such conduct was wrong.” N.Y.—McKinney’s Penal Law § 40.15.
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Chapter IV Rape 8 results (showing 5 best matches)
- The common law definition of rape was formed during an openly patriarchal time when women were subjugated by law in numerous ways. At common law, men were legally incapable of being guilty of the rape of their wives because the consent of the wife to intercourse with her husband was conclusively presumed as a matter of law. Since adultery and sex outside of marriage were each crimes in their own right, common law judges worried that a woman would “cry rape” to avoid criminal liability herself. As a result, rape law often protected men too much and women too little. See Anne M. Coughlin, At common law, rape was defined as unlawful sexual intercourse with a woman against her will by force or threat of immediate force. Each of these terms requires some explication.
- states require the perpetrator to be a specified number of years older than the victim in order for the activity to be deemed criminal. States vary as to whether prior chastity is a requirement. Mental defectives are frequently protected under this type of statute also.
- In most states, statutory rape is a gender neutral crime. In a few states, however, only females can be victims, and only males can be perpetrators. The United States Supreme Court upheld such a statute from California against an equal protection challenge, reasoning that since only females bear the burden of potential pregnancy, it was equitable for only males to bear the burden of potential criminal liability.
- The common law excluded from rape, acts of forcible same sex contact and forcible opposite sex contact with some body cavity other than the vagina (although each of these was, and in most jurisdictions still is, a serious felony sometimes called sodomy). The common law rules also made it impossible for a woman to ever be convicted of rape as a participating first degree principal (see § 15.07
- Intercourse with a victim mentally incapable of consenting to intercourse constituted rape at common law. Many jurisdictions have distinguished between this form of rape and others in their statues.
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Chapter IX Actus Reus 10 results (showing 5 best matches)
- The classic justification for the actus reus requirement is the undesirability of punishing one merely for her thoughts. Until a person actually does something, we have no objective proof of the firmness of her criminal thoughts (after all, who among us hasn’t at one time or another had a criminal thought, such as murdering her criminal law teacher). Nevertheless, the requirement should not be overstated. In attempt, for example, the actus reus requirement is satisfied by muscular contractions
- is limited to status or propensity type crimes, its impact on the criminal law would be excessive. For example, he observed that “[i]f Leroy Powell cannot be convicted of public intoxication, it is difficult to see how a State can convict an individual for murder, if that individual, while exhibiting normal behavior in all other respects, suffers from a ‘compulsion’ to kill, in principle. In his view, all of these questions were better left to the states to explore through their own conceptions of the proper function of the criminal law rather than to be adjudicated permanently by a Supreme Court mandate.
- Actus reus, like mens rea, is normally a requisite for criminal liability. Literally, the term “actus reus” means guilty act. This has caused legal theoreticians to attempt to define what is meant by the term “act.” Some theoreticians contend that an act is simply a voluntary muscular contraction ( . death of the victim). It seems unwise to dwell too long on this somewhat metaphysical debate in that it is clear that both criminal circumstances and consequences are requisite to criminal responsibility. Inasmuch as actus reus means guilty act and not simply act, it is probably easier to conceptualize actus reus as including circumstances and consequences as well as muscular contractions.
- As a general proposition, an omission or failure to act is not a basis for criminal liability. One classic illustration of no liability is a six foot tall expert swimmer who deliberately sits by the side of a five foot pool thoroughly enjoying watching a four foot tall child drown. One reason commonly given for this rule is the difficulty of ascertaining at what point the danger to the rescuer becomes too great to hold him criminally responsible. Another reason is that the law ought to direct its energies towards punishing
- ). In addition, this clause precludes punishing certain types of legislatively declared “crimes” at all on the ground that any punishment for that which should not be criminal is cruel and unusual. The leading case is
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Chapter XV Accountability for the Acts of Others 12 results (showing 5 best matches)
- If every crime were the work of a single criminal, there would be no need for this section. Unfortunately for both society and the criminal law student, such is not the case. A typical crime might have many parties. For example, the big boss may dispatch A, B, and C to rob a bank. A to perform the actual robbery, B to stand by as a lookout and to aid if necessary, and C to drive the getaway car. The plans might further call for A, B, and C to hide out at the boss’ mountain cabin with the boss and his girlfriend providing the shelter.
- An accessory after the fact is one who, though not present at the commission of the crime, renders aid, comfort, and/or shelter to the criminal. In the hypothetical, both the big boss and his girlfriend are accessories after the fact, assuming of course that the girlfriend knew about the crime. It is possible for the same person to be both an accessory before the fact and an accessory after the fact to the same crime (although research has disclosed no case sustaining a total punishment in excess of that authorized for the principal criminal). Thus, the big boss can be liable in a dual capacity. It is not possible, however, to be both a principal and an accessory before or after the fact. Thus, neither A, B nor C are accessories after the fact no matter how much they shield each other. Both at common law and today, accessories after the fact are punished less severely than principals and their liability is dependent upon the principal’s guilt.
- Compounding a felony, that is accepting money or other consideration in exchange for not prosecuting or reporting a felony was recognized at common law and is still recognized today. It is seldom enforced (although it could be) when a victim accepts compensation from the criminal in exchange for his agreement not to prosecute. It is normally used to punish a bribed witness whose failure to report the crime he witnessed may be thought to obstruct justice.
- no middle ground. Liability equal to a true aider and abettor or accessory seems excessive in most, if not all, of these cases. Yet, the conduct is not consistent with innocence either. Thus, a lesser offense would seem appropriate. New York has adopted a “criminal facilitation” statute for one who provides another with the means to commit a crime (which is in fact committed), believing that he is probably rendering such aid. Such facilitation is treated as a crime less serious than the crime being facilitated. N.Y.—McKinney’s Penal Law § 115.00.
- R. v. Tyrell, 17 Cox Crim. Cas. 716 (Cr. Cas. Res. 1893). In addition, when a crime necessarily requires two people, such as prostitution (prostitute and customer) or selling liquor without a permit (seller and buyer) and the legislature only provides punishment for one (the prostitute and seller in the hypotheticals), it is generally presumed that the other, although not really a victim, is not punishable under the statute. This is sometimes justified on the ground that the law is better served by preserving each individual customer (who is usually involved in only a small percentage of the prostitute or liquor seller’s crimes) as an innocent witness rather than a potential criminal. See,
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Outline 9 results (showing 5 best matches)
Center Title 1 result
Chapter XI Other Defenses 18 results (showing 5 best matches)
- Although these common law rules remain the law in most states today (subject to statutory age changes in some), they are not as important as they once were because of the advent of the juvenile court system. Most juveniles under fourteen (or for that matter under eighteen) are tried in juvenile courts as delinquents rather than criminal defendants, thereby rendering the defense of infancy irrelevant. See, . There are a few decisions, however, that because of the quasi-criminal nature of a delinquency proceeding, allow infancy to be raised as a defense in such proceedings.
- At common law a child under seven was conclusively presumed to be incapable of committing a crime. From seven to fourteen a rebuttable presumption of incapacity was created. This presumption, which progressively weakened as the child approached fourteen, could be rebutted by proof of actual criminal capacity such as hiding evidence of the crime or bribing witnesses. See
- Voluntary intoxication has also been used as a defense to the voluntary act requirement. For example, a person can become so intoxicated that he is rendered unconscious. In such a condition his body may move in an automatic, unwilled, manner and cause harm to others. Such a defendant may raise the argument that he cannot be convicted of a crime as his conduct did not include a willed, conscious, muscular contraction. Courts have ruled that, although unconsciousness ordinarily precludes criminal liability, it is not a defense if that condition was brought on by voluntary consumption of alcohol or drugs.
- Of course, a defendant who is not substantially free from guilt cannot raise the defense. For example, one who joins a gang of robbers cannot claim duress when the leader says “rob Mr. X or I’ll kill you.” One who voluntarily puts one’s self in a situation where they are likely to suffer duress—such as one who joins a criminal organization whose members are often ordered to commit crime—may not claim the defense, however.
- Mrs. D would have the defense of necessity (not duress) to a criminal trespass charge if she runs into a stranger’s house and telephones the police.
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Chapter II Homicide 16 results (showing 5 best matches)
- Not all jurisdictions can be categorized as objective or subjective. Some have not spoken directly to the question. Others employ standard subjective language (“reckless” or “wanton”), eschew standard objective language (“gross negligence” or “criminal . at 910. Indeed, the court went so far as to say that “[t]here is in Massachusetts at common law no such thing as ‘criminal negligence.’ ” . at 910. To illustrate, the court opined that “ ‘even if a particular defendant is so stupid [or] so heedless . . . that in fact he did not realize the grave danger, he cannot escape the imputation of wanton or reckless conduct in his dangerous act or omission, if an ordinary normal man under the same circumstances would have realized the gravity of the danger. A man may be reckless within the meaning of the law although he himself thought he was careful.’ ”
- “Criminal homicide constitutes manslaughter when . . . a homicide which would otherwise be murder is committed under the influence of extreme mental or emotional disturbance for which there is reasonable explanation or excuse. The reasonableness of such explanation or excuse shall be determined from the viewpoint of a person in the actor’s situation under the circumstances as he believes them to be.”
- Those jurisdictions which employ an objective test use a variety of epithets to describe the quantum of negligence necessary to constitute manslaughter. Typical of these are “criminal negligence,” “gross negligence,” and “culpable negligence.” About the only certainty of meaning one can ascribe to these epithets is that they require more than ordinary negligence,
- In 1967, England legislatively enacted a subjective test (Criminal Justice Act, 1967, c. 80, § 8), thereby rejecting the objective test that previously had been judicially approved in
- Some jurisdictions effectively reject the misdemeanor manslaughter rule by holding that in addition to the misdemeanor there must be proof of criminal negligence.
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Chapter VI Self-Defense and Related Defenses 9 results (showing 5 best matches)
- At common law, a police officer could use whatever force reasonably appeared to be necessary to arrest a felon and whatever force, short of deadly force, reasonably appeared to be necessary to arrest a misdemeanant (assuming of course that the arrest was otherwise lawful, a matter discussed at some length in criminal procedure books and courses.) See
- Apprehension of Criminals
- to the extent that he reasonably believes such to be necessary to defend himself or a third person from what he reasonably believes to be the use or imminent use of unlawful physical force by such other person. . . .” N.Y.—McKinney’s Consol. Laws of N.Y. Penal Law § 35.15.
- A private citizen, not acting pursuant to a policeman’s orders, may use moderate non-deadly force to effectuate the arrest of a person whom he reasonably believes has committed a crime. He may not, however, use deadly force to apprehend a suspected criminal unless the arrestee has
- Deadly force, that is force likely to inflict death or serious bodily injury, may not normally be employed even when reasonably necessary to prevent injury. For example, B may not shoot A in order to avoid a minor beating. The law deems it better that one suffer minor injury than that another’s life be needlessly spent.
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Chapter III Causation 5 results
- Similarly, a number of courts have found that proximate cause is insufficient for criminal liability because of both the stigma of a criminal conviction and the potential loss of liberty that incarceration entails. These courts require a more direct connection between the defendant’s conduct and the result required by the crime charged.
- Causation problems are not limited to homicide cases. They exist whenever the law requires a particular result as a condition of criminal liability. Thus, in arson, for example, it is not enough to prove that defendant lit a torch intending to burn another’s dwelling house and the house in fact burned. The state must also prove that defendant’s act caused the burning. If, in the above illustration, defendant had thrown the torch inside the house, but the house was struck by lightning and burned while the torch flickered and died without burning anything, defendant would not be guilty of arson (although he would be guilty of attempted arson, see Ch. XIV
- Obviously, these examples can be multiplied (and doubtless most criminal law professors will do precisely that), but in a book this size, these examples should suffice to demonstrate the bias in favor of homicidal liability for deaths which would not have occurred “but for” the defendant’s intentional act. The “but for” must be taken seriously. Thus if there is not evidence that the defendant’s reprehensible act caused or accelerated the victim’s death, he will not be liable. See
- . Nevertheless, since the purpose of criminal law is punishment rather than compensation (§ 1.01
- At common law, death could not be attributed to defendant’s wrongful conduct unless it occurred within a year and a day of the conduct. The rationale for this rule was the lack of medical precision in determining cause after such a long period of time, coupled with the very real probability of an intervening cause being responsible for the death. In view of the medical advances of the twentieth century, it can be argued that the year and a day rule is obsolete and should be discarded. Indeed, many jurisdictions have done so. In fact, so many jurisdictions have discarded the rule either by legislation or judicial decision, that the Tennessee
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Chapter XIV Attempt 22 results (showing 5 best matches)
- Although not recognized at very early common law, attempt is universally recognized as a part of the criminal law today (although there are jurisdictions in which it is not applicable to all offenses). In the sections which follow, the full scope and limitations of attempt will be developed. For now, however, it will suffice to conceptualize attempt as a substantial but unsuccessful effort to commit a particular crime. Because the effort must be unsuccessful, a person cannot be prosecuted for both an attempt and the completed crime. In such a case, the attempt could be said to merge with the completed crime, thereby abrogating itself.
- violent overthrow of the government), the First Amendment is often a factor in solicitation cases. Both common law solicitation and the First Amendment require that the solicitor specifically intend that the solicitee(s) engage in a particular kind of criminal conduct. Further, the First Amendment prohibits punishment unless the solicitor incites as opposed to merely advocates criminal action.
- The principal advantage of the “substantial act” test is that it permits the criminal law to reach farther back into preparatory conduct, thereby facilitating the police in their efforts to “nip crime in the bud.” Of course, this creates a concomitant disadvantage in that it significantly increases the risk that people who have not firmly determined to commit a crime will be convicted. This problem can be exacerbated where a dubiously obtained
- Perhaps the most difficult aspect of attempt (if not all of criminal law) is the appropriately named defense of “impossibility.” “Impossibility” is particularly difficult to capsulize in a nutshell because as soon as one appears to have developed an all encompassing theory, somebody will think of a case which doesn’t quite fit, thereby requiring either an anomalous result or reformulation of the theory. Furthermore, various fact situations tend to differ ever so slightly from one another, gradually shading from one category to another, but often not clearly in any. Thus, one cannot always say for certain whether a particular case is determined by one principle or another. The best that can be done is to apply one’s overall understanding of the subject area to a particular case and thereby attempt to resolve it. It is absolutely imperative that the reader recognize this limitation if he is to have any hope of understanding the “impossibility” defense.
- ) can also be attempted. Thus, in a sense, a person planning to break into another’s home to steal, but caught before reaching the premises, can be guilty of “attempted attempted larceny.” Indeed, this progression can go back even further since possession of burglar tools is frequently a criminal offense (§ 14.06B
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Chapter VII Crimes Against Property 28 results (showing 5 best matches)
- The crime of obtaining property by false pretenses, like embezzlement, originated as a statutory attempt to plug a common law loophole. Obtaining property by false pretenses can be defined as obtaining title to property by knowingly or recklessly making a false representation of a presently existing fact of pecuniary significance which is intended to and does defraud the victim, thereby causing him to part with his property. Although the impetus to make the sort of conduct criminal at common law never materialized because of the caveat emptor concept, there was an indiscriminate kind of common law false pretenses called “cheats.” “Cheats” was applicable to those merchants who used false weights and measures, thereby indiscriminately cheating the public. This was thought to be very different from the person who simply made a fool of another in a one to one transaction. Although it was once regarded as less serious than larceny, today obtaining property by false pretenses is usually...
- The fourth and most stringent test rejects claim of right entirely. This view would hold A liable even if B had in fact stolen the property in A’s presence. The rationale for this position is that threatened prosecution should not be used as a means of collecting debts. Rather, A’s duty is to file a criminal complaint against B. For A to fail to so report upon payment of funds compounds B’s original offense (compare § 15.01, ) and subverts justice. In opposition to this view, one can assert persuasively that criminal courts are sufficiently busy without adding the burden of those cases in which the victim can be satisfied simply by being paid, particularly since restitution and a small fine is likely to be the only sentence imposed on the thief anyway. For a discussion of all of these views, see majority and dissenting opinions in N.Y.—McKinney’s Penal Law § 155.15 (1967).
- advertise the fact in a newspaper) is a criminal offense.
- Finally, the whole situation was altered by patchwork legislation which attempted to fill in the gaps left by the common law judges. See M.P.C. Tent. Draft 1, pp. 101–106. Most of this chapter is concerned with the law of theft as it now stands after this legislation.
- It is important to note that it is the misappropriation and not the original taking that is the essential criminal act. Thus, if Pear had returned the horse to its rightful owner, he would not have been guilty of larceny despite his original intent. However, the original wrongful intent is necessary for constructive possession to remain in the owner. Had Pear not formed his wrongful intent until after renting the horse, his subsequent misappropriation would not have been trespassory and he would not have been guilty of larceny by trick. [As to his possible guilt for larceny by a bailee see § 7.03D
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Chapter V Other Crimes Against the Person 7 results (showing 5 best matches)
- Battery is generally defined as an intentional bodily injury or offensive touching of another. Thus, a man who intentionally punches another in the nose or fondles a woman without her consent is guilty of this offense. In some jurisdictions, criminal negligence (see § 8.01 . Also, there are some cases sustaining battery convictions based on violations of the law. However, in most of these cases, the defendant appeared to be in fact criminally negligent [
- Culpability, Dangerousness and Harm: Balancing the Factors Upon Which our Criminal law is Predicated, 66 N.C.L. Rev. 283 (1988).
- Kidnapping requires an intent to act without authority of the law. Thus, a person who takes another from one place to another, believing (however unreasonably) that the law has so authorized him, is not guilty of kidnapping.
- M.P.C. §§ 211.1(2)(a), 210.0(3), the common law and most states treat it as a separate offense. Its essence is permanent dismembering or disabling of another.
- At common law mayhem was limited to those injuries which rendered a man less able to fight for the king. Since preserving the king’s army was the
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- impose liability even where the employee’s act may have only been apparently authorized. Obviously criminal liability is more serious. Consequently, the tie to the corporation must be greater.
- Several theoretical problems lie at the heart of the concept of corporate criminal liability. As John Coffee’s article suggests, there is
- Ordinarily, an employee acting on his own cannot bind the corporation. As one court put it in a fraud case, the agent must be acting in the scope of his employment, his fraudulent conduct must contribute to the corporation’s benefit, and the criminal acts must be “authorized, tolerated, or ratified by corporate management.”
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WEST ACADEMIC PUBLISHING’S EMERITUS ADVISORY BOARD 14 results (showing 5 best matches)
- Professor of Law Emeritus, Pepperdine University Professor of Law Emeritus, University of California, Los Angeles
- Arthur J. Kania Dean and Professor of LawVillanova University Charles Widger School of Law
- Professor of LawUniversity of Houston Law Center
- Dean & Professor of LawUniversity of Maryland Carey School of Law
- Professor of Law, University of Houston Law Center
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Chapter XIII Presumptions and Inferences 2 results
- Finally, a conclusive presumption is simply a rule of law. It requires a jury to find fact B if it has found fact A. For example, suppose a statute provides that: “It is unlawful for any person to knowingly fail to file an income tax return. Anybody who owns a copy of the Internal Revenue Code shall be deemed to know of his duty to file a tax return.” Assume that the Government proves beyond a reasonable doubt that the defendant owns a copy of the Internal Revenue Code and that he failed to file his income tax. Assume further that the defendant proves that he never read the Code and had no knowledge of his duty to file the return. Under these circumstances, the defendant should be found guilty because the conclusive presumption effectively creates a rule of law which provides that: “It is unlawful for any person who owns a copy of the Internal Revenue Code to fail to file an income tax return, whether or not he knows of his obligation to do so.”
- , however, the Supreme Court overturned a murder conviction because the jury was instructed that “the law presumes that a person intends the ordinary consequences of his voluntary acts.” Montana argued that the instruction merely permitted the jury to infer intent from the defendant’s conduct. The Court, however, concluded that a reasonable juror would believe either that the presumption was conclusive or rebuttable only by the defendant’s proving it to be false in his case. According to the Court, either interpretation would have been unconstitutional.
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- Publication Date: March 26th, 2024
- ISBN: 9781685610654
- Subject: Criminal Law
- Series: Nutshells
- Type: Overviews
- Description: This guide helps you gain an overview of and develop perspective on the area of criminal law. It is organized into eight sections for quick reference. Expert discussion explores punishment, specific crimes, and the ingredients of a crime such as mens rea and actus reus. Other topics covered include special defenses, the burden of proof, and inchoate and group criminality. It also reflects on the limitations of criminal law.
