CRIMINAL LAW THEORY

Retributive if you are morally blameworthy on the hook 1. Most of the accused would be fit for punishment 2. Does the sentence fit moral blameworthiness If not, retributive acts as a limiting principle 3. Just Deserts Punished for actions Utilitarian For the greater good of mankind 1. If punishment would serve mankind on the hook 2. Deterrence a. General Other people wont commit crime b. Specific Take the bad guy out of society 3. Incapacitation Only should be used when its necessary that the criminal be removed from society to prevent recidivism 4. Rehabilitation Cure criminals before they go back into society

INTERPRETING STATUTES
Lenity Rule
1. Interpret statute ambiguity against the legislature In Pari Materia 1. Statutes dealing with similar subjects should be construed similarly a. Heroin3 years, silent on Coke Probably 3 years Elemental Analysis 1. Approaches: a. Grammatical i. Adverbs apply only to verbs, thus mens rea will only apply to conduct b. Legislative Intent i. Are we protecting what the statute is intending to prevent? c. MPCMaterial Elements i. Adverb only applies to material elements Conduct, SC, Result ii. Legislative intent helps distinguish between material and simple elements Burden Shifting 1. Statutes may be drafted to keep burden of proof on defendant as an affirmative defense OR on the prosecution by making them that to prove that there was no defense 2. Example: a. You cannot possess cocaine, UNLESS authorized (Authorization is an affirmative defense) b. You cannot have unauthorized possession of cocaine (Prosecution MUST prove unauthorized possession)

CRIMINAL PROCEDURE
Katz Rule Reasonable expectation of privacy 1. Warrant SEARCH OKAY 2. No Warrant SEARCH NOT OKAY 3. No Warrant BUT Probable Cause SEARCH OKAY Confessions 1. Need to be voluntary 2. Need Miranda Warnings (Miranda Rule) a. APPLIES WHEN SUSPECT IS IN CUSTODY Identification Procedures 1. Was the procedure suggestive? (Braithwaite Rule) 2. Indicia of Reliability of Witness Exclusionary Rule [Wong Sun, 371 US 471 (1963)] 1. Must have standing to exclude evidence 2. Fruit of the Poisonous Tree Doctrine a. Once original search is deemed illegal, all derivative evidence is NOT ADMISSIBLE b. EXCEPTIONS: i. Independent Source someone unrelated gave it to you ii. Inevitable Discovery would have gotten it anyway iii. Purged Taint Exception too far removed iv. Good Faith v. Knock + Announce if you only failed to knock and announce, the evidence is still good Right to Counsel 1. In critical stage a. Need to make decisions which can be used against you in court b. Only waive knowingly and intelligently Secret Agents [Hoffa, 385 US 293 (1966)] 1. 5th Amendment DOES NOT protect misplaced trust in informants Stop & Frisk (Terry Rule) 1. Can STOP when observe unusual conduct 2. Can FRISK if nothing dispels belief during stop 3. Reasonable Person Test for whats a stop? Warrantless Searches 1. MUST have warrant to enter home absent exigent circumstances 2. Can get evidence in plain view during a stop

3. Can search incident to arrest

COMMON LAW FELONIES

Murder
1. Unlawful a. Not justifiable (NOT NECESSITY) b. Not excusable (NO DEFENSE) 2. Killing a. Conduct (Killing) + Result (Causing Death) b. Deadly Weapon Rule i. intent follows the bullet 3. Human 4. W/ Malice Aforethought a. Express or Implied Mens Rea Who Conduct SC Result Person Kill Person Kill Intent (Malice) Knowledge Intent (Malice)

FELONY MURDER (People v. Aaron)

1. Death while in commission of a felony is murder (Felony + Cause= Murder) 2. Transfers intent of a committing any felony to the intent to commit murder 3. Felony MUST be inherently dangerous a. Death MUST be a natural and probable result of conduct 4. Felony MUST be independent of the homicide a. Cant have assault with intent to murder and murder 5. MODERN RULE: Jury must find malice beyond a reasonable doubt in order to convict for murder

Rape
1. Unlawful a. Not spouse 2. Carnal Knowledge a. Penetration b. Emission (FORK) 3. Of Woman 4. By Force a. Resistance b. Intimidation (of physical force?)

5. W/o Consent a. Fraud in the factum doesnt realize what shes consenting to (GUILTY) b. Fraud in the inducement (deception) she still knows shes having intercourse (NOT GUILTY) Mens Rea Who Conduct SC Result Person Intercourse Woman (Not Wife) -----

Manslaughter
1. Unlawful 2. Killing a. Voluntary Passion or Provocation b. Involuntary Hurt NOT Kill 3. Human 4. W/o Malice Aforethought

Mens Rea Who Conduct SC Result Person Kill Person Kill Reckless Reckless Reckless

Sodomy
1. Carnal knowledge a. Penetration b. Emission (Doubtful that its required) 2. Consent irrelevant a. Consensual sodomy is protected (Lawrence v Texas) 3. Crime against Nature a. Sometimes extended to: i. Fellatio + Cunnilingus (FORK) Robbery (Compound Larceny) 1. Taking 2. Carrying Away 3. Personal Goods a. Any value b. Not destroyed fixtures 4. In owners presence

a. Actual or Immediate Custody 5. By Violence or Fear

Larceny (specific intent)

1. Taking a. Technical Trespass 2. Carrying Away a. At least some asportation 3. Personal Goods a. Not real property (No destroyed fixtures) 4. W/ Intent to Steal a. Not a bona fide claim of mistake b. Permanently deprive (No joyriding) i. FORK: To gain and not merely deprive Mens Rea Who Conduct SC Result Person Taking + Carrying Away Property Of Another Taking + Carrying Away Intent to Steal STRICT Knowledge

Arson
1. Willful + Malicious a. Not negligent nor privileged 2. Burning a. More than scorching 3. Dwelling House a. Present home plus curtilage

Mayhem (To Maim)

1. Maliciousness 2. Depriving Use a. So one cannot defend themselves or others 3. Of Limb

Burglary (specific intent)

1. Breaking a. Actual Breaking b. Intimidation/ False pretense c. Conspiracy w/ Servant d. Down Chimney 2. Entering

a. Some Penetration 3. Dwelling House a. Present Home plus Curtilage b. FORK: May extend to buildings and sometimes cars 4. At Night (FORK) 5. W/ Intent to Commit Felony

Mens Rea Who Conduct SC Person Breaking + Entering Dwelling Of Another At Night Breaking + Entering Intent to Commit Felony STRICT Knowledge STRICT (FORK)

Result

INCHOATE OFFENSES
Attempt [merges]
1. Proximity How close was the act to being completed (How close to it) 2. MPC: a. Focuses on whats been done rather than what remains SUBSTANTIAL STEP b. Allows Abandonment Defense if voluntary and complete renunciation 3. Common Law: a. Weighs the proximity and degree Can infer state of mind from closeness of factors to it b. NO Abandonment Defense 4. In Strict Liability LIABILITY element is strict as to it BUT NOT to attempt a. ALL THE OTHER ELEMENTS STILL STAY STRICT b. Statutory Rape example, off the hook on attempt 5. Attempt will merge into completed offense

Mens Rea Who Conduct SC Result Person Attempt [it] -----intent

Aiding & Abetting (Complicity) [merges]

1. Physical or Psychological Aid (Omission can be aid, when you have a duty to act) 2. Form of group criminality, when 2 or more individuals help or encourage the actor to commit a crime. 3. Cannot aid or abet if you are a victim of the offense Statutory rape 4. You may be able to aid or abet a crime even if you would have a defense to the actual crime 5. Common Law: a. Only liable if you successfully aid b. Requires attempt to [it] c. Accomplice may be on the hook for a crime arising out of another, even if they didnt intend to aid and abet the second crime. d. Must provide useful aid to satisfy aid requirement e. Cannot aid and abet a pretender of the crime f. Withdrawal IS A DEFENSE prevent crime or render aid ineffective 6. MPC: a. Attempting to aid STILL FULLY LIABLE b. Requires attempt to [it] c. Does not permit responsibility to accomplices negligence toward unanticipated crimes d. Any attempt to aid satisfies aid requirement e. Can still aid and abet a pretender of the crime f. Withdrawal IS A DEFENSE deprive any aid it has given, notify police or prevent crime Mens Rea Who Conduct SC Result Person Facilitate [it] [it] must happen Intent to [it] Knowledge Recklessness

Conspiracy [FORK: merges]

1. Agreement between 2 or more individuals to commit a criminal act or lawful act by criminal means (FORK: Common Law Only) 2. Common Law requires: a. An overt act toward it b. Bilateral Approachplurality requirement, both parties have to agree c. NO ABANDONMENT DEFENSE d. Withdrawl defense MUST give notice to co-conspirators or to police 3. MPC requires: a. FORK: The object of the agreement to be an actual crime

4. 5. 6. 7.

8.

b. An overt act toward it UNLESS the it is a serious felony, then requires less. c. MENS REA: Requires agreement made with the purpose of promoting of facilitating d. Unilateral Approach Focuses on if one person agrees with another e. Allows an Abandonment defense (RENUNCIATION) f. Withdrawl Defense Adequate notice Conspiracy will usually NOT merge into the completed offense a. Only merges in MPC if criminal objectives go beyond offenses NOTE: On exam you might be able to tack on extra counts of conspiracy is a main conspirator co-conspired with independent parties Pinkerton Rule Every co-conspirator is responsible for all foreseeable crimes committed by other members in furtherance of the conspiracy. Legal Impossibility GOOD DEFENSE a. You cant conspire to commit a crime thats not a crime (even if you think it is a crime) Factual Impossibility NOT A DEFENSE Mens Rea Who Conduct SC Result Person Conspire [it] Agreement Intent to agree to [it] Intent to [it] Knowledge

Solicitation [merges]
1. Punishes anyone who deliberately encourages someone else to commit a crime. 2. Cannot be convicted of both solicitation and conspiracy because solicitation precludes conspiracy and conspiracy includes solicitation. 3. Police can solicit criminals without getting in trouble 4. Common Law: a. Can be convicted of attempted solicitation (pushing the threshold back even farther) b. Abandonment IS A DEFENSE probably must communicate and prevent crime 5. MPC: a. Can be convicted for solicitation if the encouragement does not actually reach the assailant b. Person solicited does NOT actually have to act for one to be convicted of solicitation c. Abandonment IS A DEFENSE must be complete and voluntary and must prevent crime Mens Rea Who Person

Conduct SC Result

Encourage [it] ----

Intent to encourage [it] Knowledge

DEFENSES AND COUNTERCLAIMS

NO CRIME DEFENSES Youth Tender Years PERSONAL DEFENSES Self Defense
Common Law Reasonably believe Necessary to defend against Imminent Unlawful Force MPCImmediately necessary to protect against unlawful force (if belief is wrong then manslaughter)

Insanity

1. MNaghten Testunable to appreciate wrongfulness of what he is doing 2. MPC Test Mental defect causing
inability to appreciate wrongfulness or conform to lawful behavior

Entrapment
Common LawPolice conduct v. Criminal predisposition MPCLook what Govt did; would it cause reasonable person to commit crime

Mistake of Fact Innocent Agent (commits criminal act but lacks

capacity or mens rea or is fooled into committing crime)

Insanity Immunity Intoxication Negates Specific Intent Necessity (justification)

Common LawClear/imminent harm, no legal alternative MPC Lesser of Evils Choice

Duress (excuse)
Common LawImminent threat of substantial injury by another well grounded and no legal alternative (EXCEPTION: Not by own causing and
no defense for purposeful murder)

MPCunlawful threat by person of reasonable firmness in situation (EXCEPTION: If recklessly

got yourself into situation)

Mistake
Reasonable Mistake of Law Unreasonable Mistake of Law Statute Requires Specific Intent DEFENSE DEFENSE Statute Requires General Intent Guilty Guilty

Reasonable Mistake of Fact DEFENSE DEFENSE Unreasonable Mistake of DEFENSE Guilty Fact *BE AWARE OF LEGAL FACTS THAT CAN BE ARGUED AS A FACT OR LAW Note: Jurisdiction element is ALWAYS STRICT so mistake will not exonerate

Legal Impossibility
1. Jaffe reasoning Specious Legal Impossibility: If you do everything you intend to do but a crime is NOT committed under the circumstances then legally impossible. (Actually this is an attempt if you use the true definition of legal impossibility.)FALSE TEST 2. Rojas reasoning True Legal Impossibility: Can anyone commit this crime? Can this person commit this crime? If NO for either, then legally impossible. RIGHT TEST a. THIS IS A DEFENSE

Factual Impossibility
1. Despite intentions the perpetrator could NOT complete the intended crime due to facts or conditions beyond his controlNOT A DEFENSE Inherent Impossibility (Voodoo Doll) 1. If the person commits an act that they belief and the victim believes could harm him, then ITS NOT A DEFENSE, even if its impossible to hurt the victim 2. If one person commits an act, but the other person knows it wont affect them, NO REASON TO ALLOCATE RESOURCES to the actor.

STRICT LIABILITY [imposed where legislature needs to protect society from

harm and mens rea is hard to prove] Greater Crime Theory 1. Common Law: If defendant commits a crime knowingly (or recklessly) is actor is held to the greater offense if it occurs even if he did not know 2. MPC: Rejects this theory Actor held to what he intended to commit Corporate Officers only liable for agents acts if they were able to correct or prevent the conduct by the agent Innocent Actors If not wholly innocent, crime will be strict didnt know she was underage

LOGICAL FALLACIES

1. Argumentum ad antiquitatem a. That some policy, right or behavior is right because it has always been done that way 2. Argumentum ad hominem a. Attacking the character or motives of the person who has stated an idea, rather than the argument itself 3. Argumentum ad ignorantiam a. Assuming something is true just because it hasnt been proven false 4. Argumentum ad logicam a. Assuming something is false because an argument or evidence offered for the idea is proved to be invalid 5. Argumentum ad misericordiam a. Argument to appeal or pity 6. Argumentum ad nauseam a. Trying to prove something by repeating it over and over 7. Argumentum ad numerum a. The attempt to prove something by showing how many people think its true 8. Argumentum ad populum a. Trying to prove something by showing the public agrees with you 9. Argumentum ad verecundiam a. When someone tries to demonstrate the truth to an argument by citing an expert opinion who is an expert is an unrelated field 10. Circulus in demonstrado [Circular reasoning] a. Occurs when someone uses their conclusion as evidence to prove that conclusion 11. Petitio Principii a. Assuming, when trying to prove something, what you are trying to prove 12. Complex Question a. Question that implicitly assumes something to be true by its construction 13. Cum Hoc Ergo Propter Hoc a. Mistaking correlation for causation 14. Dicto Simplicter a. Making a sweeping general statement and expecting it to be true in every case 15. Naturalistic Fallacy a. Assuming whatever is consistent with nature is good (however defined) and whatever conflicts with nature is bad 16. Non Sequitor a. Stating a conclusion that does not follow from the premises 17. Post Hoc Ergo Propter Hoc a. Assuming that A caused B simply because it happened prior to B 18. Red Herring a. Introducing irrelevant facts to distract one from addressing the question at hand 19. Slippery Slope

a. An argument that says adopting a policy will lead to a series of other policies without showing a casual connection between the advocated and consequent policies 20. Straw Man a. Refuted a satirized or extreme version of somebodys argument, rather than the actual argument theyve made 21. Tu Quoque a. Defending an error in ones reasoning by pointing out that ones opponent has made the same error