Criminal Law Starr 3 PDF

Preview

Summary

This is the outline of lecture and reading notes for Sonya Starr's Criminal Law course. It is not a course that changes often, so this outline will be good for at least a couple of years. Use to study for final exam. ...

Description

CRIMINAL LAW OUTLINE – Prof. Sonja Starr

ELEMENTS CHEATSHEET Elements of Crimes: 















Possession: o (1) Knowing (Need to Infer) (2) Ability to Control (3) Intent to do so (4*) of illegal drugs (Possible)  Even if on person, don’t possess til knowledge and fail to get rid of. Possession w/ Intent to Distribute: o (1) Knowingly (Need to Infer) (2) Possessed (Need to Construct, above) (3) With intent to distribute (Need to Infer) Premeditated Murder: o (1) Purposely and (2) with malice aforethought/premeditatively/deliberately (3) causes by his own actions (4) a death. Purposeful/Knowing MPC Murder: o (1) Purposely or Knowingly (2) causes by his own actions (3) a death Depraved Heart Murder (See also Fel. Murder): o (1) Recklessly (Substantial and Unjustifiable Risk) and (2) Callously/Depravedly/Demonstrates Extreme Indifference to Human Life (MPC) (3) causes by a voluntary action a (4) death. Felony Murder: o (1) While in the commission/furtherance of a felony (2) causes factually and proximately (3) a death.  MPC: Only acts as Presumption for Depraved Heart  Limited by specific list or inherently dangerous felony & merger, if not limited it’s presumed.  When jurisdictions apply both IDF and Merger, only Felonies that are inherently dangerous to life.…but yet do not effectively constitute the homicide itself.  Can be grounded in Attempt or A&B  Broader than Conspiracy b/c no MR Voluntary Manslaughter/ Extreme Emotional Distress: o (1) Purposely (Or Knowingly MPC) (2) causes the death of another (3) with (a) adequate (b) provocation (4) in the sudden heat of passion.  MPC 210.3: Otherwise homicide under the influence of extreme emotional distress for which there is (subjective) reasonable explanation or excuse. NOTE: NO ADEQUATE PROVOCATION NEEDED. AVOIDS VERBAL DEBATE. MISTAKE OK. COOLING OFF FINE. Manslaughter/Reckless Homicide (MPC 210.3) o (1) Recklessly (Aware of a Substantial and Unjustifiable Risk) (2) causes (3) a death.

 



 









Defenses Elements: EED Murder – See Left Mistake of Fact o Defense if refutes req. mens rea  Stat Rape is SL- Yes or No? Usually No. Mistake of Law: Only when: o Substantive Due Process Exception: excusable ignorance of law due to lack of notice. (omission, low probability of knowledge of crime) o Mens Rea Negation: Mistake negates mental state element that requires awareness of law o Authorized Reliance Doctrine: Reasonable reliance on official statement of law. Mistake of Consent – See Left Deadly Self Defense o CL: D honestly and reasonably believes the threat is: (1) DEADLY, (Difference b/t this and non-deadly force) (2) IMMEDIATE, and (3) UNLAWFUL; (4) and that the deadly force response is (4) NECESSARY and (5) D can’t have been the AGGRESSOR.  Duty to Retreat, but Castle Doctrine MPC Self-Defense 3.04: o (1) If D didn’t start conflict he may use force if he (2) believes (subjective) such force is (3) immediately necessary on the present occasion to combat an (4) unlawful assault by V, assuming one of the following circumstances  Just immediately necessary, no imminence; handles BWS better.  Deadly Force Allowed for Serious Threats3.04(2)(b) (See contrast above) Non Deadly Self-Defense o CL: An act where D must honestly and reasonably believe the threat is: (1) IMMEDIATE and (2) UNLAWFUL; and that the response is (3) NECESSARY and (4) And D must respond with a response that is: (4) PROPORTIONAL. (Difference b/t non-deadly and deadly force) and (5) D can’t have been the AGGRESSOR.  No Duty to Retreat (True Man Doctrine), but Castle Doctrine Self-Defense of Others: o If A has a right to use force in self-defense, then B may use the same force to defend A.  Mistake of Fact?: CL-no; Maj-OK iff honest and reasonable; MPC; OK iff good faith belief Necessity











Negligent Homicide (MPC 210.4): o (1) Negligently (Should have known of Substantial and Unjustified Risk) (2) Causes (3) the Death of Another. Rape: o Carnal knowledge of a woman (1) forcibly and (2) against her will, and maybe (3*) negligent/reckless (honest belief required to refute) mistake w/r/t lack of knowledge of consent. And maybe (*4) negligent w/r/t capacity to consent  Force: Ascoillo/Rusk/MTS  Means of Consent: Totallity of Cir/No means No/Lack of Yes means no  Fraud in the Factum/Not Inducement Attempt (Inchoate/Independent Crime): o (1) Purposely (or Knowledge MPC 5.01) engages (w/r/t attempt generally AND effectuate Target Crime) (2) in conduct tending to effectuate the commission of crime (see below for different test):  Unequivocal Act: Act must make intent clear  Sliding Scale: Evidence can push in favor  Dangerous Proximity: Act must have gone so close to actual commission  Substantial Step (MPC 5.01): (a) believes he completed/will complete with no further action or (b) purposely made a substantial step toward completion of crime. o NOTE: STACKS!  Attempted Murder and Transferred Intent Murder o NOTE: MERGES! UNLESS VICTIM IS DIFFERENT THAN INTENDED TARGET. Conspiracy (Inchoate/Independent Crime): o (*) An Overt Act (minority) (1) Making an Agreement w/ (2) Intent to combine and (3) Intent to Complete Target Crime  NOTE: MPC Merges 1.07, CL doesn’t; but only for each target offense completed  General Awareness/Knowledge(MPC) of Others Req. for liability.  NOTE: MPC Requires Overt Act 5.03(5) for less than 2nd degree crimes.  Subj. to Wharton’s Rule Conspiracy MOL o (1) A Crime is caused in (2) Furtherance of the (3) agreed upon Conspiracy (w/ intent to combine and intent to complete tgt. crime) and is a (4) Foreseeable Consq. Of the conspiracy  General Awareness of Others Needed for Liability.

An Act on the (1) Honest and Reasonable Belief that it’s (2) Necessary to prevent (3) Immediate and Dire Evil, (4) No Adequate Alternative, (5) Proportional Response, (6) Necessity is not D’s fault. (7)* Added: Crime isn’t intentional Homicide Choice of Evils/Necessity MPC 3.02: o (1) Belief that act is (2) necessary to (3) stop a greater harm.  No Imminence requirement!  Subjective Belief!  Can’t be reckless or negligent in bringing about situation. Duress: o (1) Another Person Threatens Imminent Death/Serious Bodily Injury, (2) D has WellGrounded Fear, (3) No reasonable escape, (4) Situation is not D’s fault, (5) Crime Isn’t Intentional Homicide.  NOTE: Threatener liable on Accomplice Liability Infancy: o Sliding Scale Vol. Intoxication: No defense unless specific intent crime when intox. o MPC 2.08: Intoxication is not an Element unless it negatives a specific element of the offense. (UNLESS RECKLESS IS ELEMENT, WHERE HE WOULD HAVE BEEN AWARE) Insanity o M’Naughten: (1) D Had Mental Disease/Defect (2) D either (a) didn’t know conduct’s NATURE, or (b) didn’t know it was WRONG o IIT: (1) D Had Mental Disease/Defect (2) D either (a) didn’t know conduct’s NATURE, or (b) didn’t know it was WRONG, or (c) was IRRESISTIBLY driven by an INSANE IMPULSE. o Product Test: D’s actions product of Mental Illness o MPC: (1) Due to mental disease/defect, (2) D lacks substantial capacity either (a) to appreciate criminality [wrongfulness] [(Conduct is o





 



wrong/Society approves the conduct/If society had all the facts, it would approve.)] or (b) to conform conduct







to the law. Impossibility Attempt o Legal Impossibility (Not a Crime) but not Factual (Ignorance of Law No Defense) Attempt Abandonment o Act: Once Act complete, no Abandonment o AD: Allowed to Raise as an Affirmative Defense  MPC: Complete and Voluntary. Conspiracy Abandonment (Inchoate – MPC Only)

SUPER BROAD. Can be a conspirator w/o being an accomplice. Not adopted by MPC. Accomplice Liability, Aiding and Abbetting (MOL for Underlying Crime): o (1) When one person commits a crime; (2) D has purpose (Minority)/[same mental state for UO] w/r/t crime (Majority/MPC 2.06) and (3) intentionally aids such person to commit the crime.  NOTE: Derivative in Nature.  NOTE: Stacks with Felony Murder: If A commits felony murder, and B aided, B also guilty of Felony Murder.  NOTE: CL subject to N+PC Liability of all crimes foreseeable consequences of crime intended.  NOTE: Under MPC, no causation required, just contribution; minority say substantial contribution. Aiding an Attempt: o See above. Attempting to Aid (MOL): o MPC 2.06(3)(a): When D has (1) purpose to promote tgt (2) and intentionally attempts to aid crime.  When an accomplice attempts and fails (no substantial step), aider still liable via attempt, but not complicity. 



 

MPC 5.03(6): AD that after conspiracy (1) voluntary and complete renunciation and (2) thwarted purpose of crime o At CL, once crime complete, no withdrawal allowed. (See Above). Conspiracy Withdrawal (MOL) o AD to (1) Bonafide and (2) Affirmative Withdrawal. (Need to tell conspirators)  Cuts off Subsequent Pinkerton Liability. Still on Hook for Act. See A+B Withdrawal to get out of liability for that. Withdrawal from A+B (MPC 2.06(6)) o (1) Terminate complicity before the crime, AND (2) Wholly deprive prior complicity of effectiveness. o





UNIT 1: FRAMING PRINCIPLES Punishment Philosophies Introduction Hypothetical: Starbucks Lady admits to stealing/thought experiment on page 48 with reformed murderer o Do we favor utilitarian or retributivist penalties for either of these, do we favor one over the other in one instance and not the other, thinking about the severity of the murder's life. o For retributivists, future does not matter (backward looking), but for utilitarian, what the person is doing and what their chances are of repeating the offense are significant because of deterrence/  This leads into the costs of deterrence  Fines or community service may be more applicable because of the guy being a good father in current life, but this may diminish the expressive quality of the punishment – The law sending a message to express societal norms Generally Speaking, the two theories of thought on punishment: 1. Retributive justification for punishment:  i.e. People deserve it. 2. Utilitarian/Consequentialist/Instrumentalist justification for punishment:  i.e. Punishment serves useful purposes. 1. Consequentialist Theories



Deterrence (general and individual), incapacitation (about risk on society), rehabilitation (providing services to people), expressive Bentham, "An Introduction to the Principles of Morals and Legislation (pgs 32-33)  An action is morally justified if and only if it increases net happiness (or "utility")  Prof Note: In practice in applied criminal law, consequentialists talk about utility in terms of crime prevention weighed against the costs of punishment.  ALL FORWARD LOOKING  Subsets: Deterrence Theory: Features: o Economist predict deterrence IF: o Punishment X Probability > Expected Gain o The complication to this is that criminals vary in perceptions of all three, and that you cannot deter all of them. o Shaming penalties are unorthodox way of shaming, idea is that they are low cost, but some people think it too extreme (a la scarlet letter) and some think it too limited to be of worthwhile widespread application. o Ex) Walmart Two types of Deterrence Theory: o General deterrence - knowledge of punishment will follow crime deters society at large from committing crimes o Individual deterrence - actual imposition of punishment creates fear in offender than if he repeats the act, he will be punished again o For both types of deterrence, notice that likelihood of arrest can matter more than severity of punishment Cons of Deterrence Theory o The punishment is a mischief according utilitarian thought, so there must be some net societal gain in the punishment if we are to have it. o Also, people might be deterred by the threat of prison, but if they do not have notice of it, they might not be deterred. o Complications to this are that criminals often don't do the math, the real deterrence is likelihood of punishment. Rehabilitation Theory: o Leading theory in Europe, fell out of fashion here with war on drugs. o The purpose is to reform the criminal so that he wish to commit crimes will be lessened, and he will be a happier, more useful person. Incapacitation Theory: o Supplanted Rehabilitation Theory o The actual imposition of incarceration temporarily or permanently puts convicted criminals out of the general circulation. o Only justifiable to the extent that the sentencing authority can reliably predict the future dangerousness of offenders. o Main idea is to keep criminals off the streets Expressive Theory (Both utilitarian and retributivist) o Shapes social norms on behavior o (This can also be viewed as a type of deterrence. No one wants to be socially condemned.) o Vindicates and empowers victims Murphy & Hampton, "Forgiveness and Mercy" o Gives articulation of expressive justification for punishment - it "plants the flag" of morality in inflicting punishment. o Not just about retribution, it is about expressing and asserting moral truth in face of the denial of them.

2. Retributive Theory a. Backward looking theory grounded in moral desert

b. Proportionality Principle: Challenged by issues of fitting the crime with the appropriate punishment according to desert. i. Usually factors involved are: 1. Mental state, 2. voluntary engagement in socially harmful acts 3. Arguably, actual social harm . There are different opinions on whether it matters the harm is actualized, e.g. a drunk driver's penalties 4. Lack of justification or excuse, e.g. mental illness . Subsequent Conduct does not matter ii. i.e. Incommensurability Problem - hard to translate crime into how much punishment warranted, usually you just think roughly what the punishment would be based on your instincts, hard to track this to an exact science. c. Negative v. Positive i. w/ positive, you need to execute the murderer even if you can put him on an island and never have him harm anyone ever. Michael S. Moore, "The Moral Worth of Retribution" (pgs 40-41) d. Introduces retributivism, says that we are justified in punishing only because the offenders deserve it. (DESERT) i.Negative Retributivism: Guilt is necessary condition of punishment. a. Used by many utilitarian as initial criteria for punishment, mixing both theories ii.Positive Retributivism: Desert both necessary and sufficient condition of punishment. (Kant) Kant, "The Philosophy of Law" e. Utilitarianism is evil, it leaves room to do things contrary to justice and righteousness; like giving a murder his freedom if he agrees to experimentation on his body. Cost of Punishments a. Empirical question, not policy b. 24 million men incarcerated, 3% of entire US population c. USA most imprisoned population, due to incapacitation theory's rise with war on drugs in 1971 with Reagan, parole abolitions, inc sentencing laws. Not necessarily driven by an increase in the crime rate, which has actually been lowering. Rate of imprisonment has actually leveled off with state budget shortfalls. d. Race and poverty correlated, and this might create vicious cycle with kids. e. Collateral legal consequences of incarceration are: i. Deportation, occupational silencing prohibitions, public housing access, loss of parental rights, sex offender registry, residency restrictions etc. disenfranchisement ii. IMPORTANT TO TALK ABOUT THESE BECAUSE class focuses on brutal facts of cases and the retribution that makes sense behind it. • Collateral legal consequences • Deportation • Occupational licensing • Public housing and benefits • Loss of parental rights • Sex offender registries, residency restrictions • Disenfranchisement • How punishment theory shapes criminal law (1) Defining crimes (2) Defenses to crimes (3) Theories of individual liability (4) Sentencing

Sources of Law and Statutory Interpretation Notice and the Principle of Legality – 1/21 Principle of Legality:  American system espouses "No crime without law, no punishment without law."  In other words, retroactive crimes are prohibited - a person may not be punished and convicted unless her conduct was defined as criminal beforehand.  Three concepts flow from principle of legality: 1. Statutory Clarity - Statutes should be understandable to reasonable person. 2. No Undue Discretion for Judges/Enforcement - criminal statutes should be drafted so as to not delegate basic policy matters to judges and juries and enforcement officers. 3. Leniency Doctrine - interpretation of ambiguous statutes should be in favor of accused.  U.S. Constitutional Hooks: 1. Due process clause prevents retroactive judicial lawmaking, and 2. ex post facto clause prevents legislative retroactivity. These are NOTICE ISSUES.  The reason we have this is because there is a risk of abuse, we want the rule of law that serves as a check on the behavior of government officials. Malum Prohibitum v. Malum Inse  Definitions: o Malum Prohibitum: Conduct that is bad only because society says it is. o Malum Inse: Conduct that is bad in and of itself.  Retributivists say that Malum Inse should be punishable regardless of:  notice or whether or  not it was retroactive or not o This is because these crimes are indicative or moral desert (there is no calculus on the utility) o There also is sometimes inherent not  Utilitarians say that: o Notice needs to be provided b/c without, there is no deterrence effect. Sources of Criminal Law  Defined by Statutes, not the common law o However, defenses can be grounded directly in the common law. o Arguments for criminal law:  Common law too amorphous to provide clear notice.  Legislature better than judges in getting punishments correct  Studies show this may not actually be the case, with incarceration rates skyrocketing o Judges usually sentence on low ends of sentencing guidelines  Legislature’s only pressure is to be tough on crime – getting deterrence proper is a secondary consideration.  Democratic process bolsters their authority to take away people’s liberties  Constructive Notice - People are legally presumed to be on notice of criminal statutes—even if they haven’t actually ever seen them. o This is a legal fiction.  Justifying this:  Social Contract – this is part of the deal in being in society; the alternative is lawlessness, which is worse o The argument against is that why don’t we have a more simple criminal code, e.g. ancient criminal codes, 10 commandments.

We use criminal law today to accomplish a myriad of different tasks, it is socially useful to have a more detailed code. We don’t want to encourage ignorance 



 The Model Penal Code o Drafted by American Law Institute in 1962 o Goal was simpler, more internally consistent, more progressive code o Some provisions influential o Currently undergoing revision

Statutory Interpretation Void For Vagueness Doctrine: - Criminal statutes violate due process if they don’t give clear notice of what they prohibit. - BUT courts first try to solve ambiguities via principles of statutory interpretation - Exam note: this is very rarely applied in real life, people don’t let it run the inquiry on the exam even though you may mention it - When employed: o If too vague for average citizen to understand (Banks) o If it delegates so much authority to administrators or judges that it leads to arbitrate prosecutions (Morales) o Only USED AS LAST RESORT WHEN OTHER TOOLS FAIL TO SOLVE AMBIGUITY Boyce Rule (on Vagueness): - No more than a reasonable degree of certainty can be demanded.” - This rule encompasses the balance of two competing constitutional obligations: 1. fulfilling that legislative purpose of an act, But also 2. Giving fair notice to the Defendant o Essentially, you should not weigh the 1st so heavily that the 2nd gets shafted. Identifying Legislative Purpose (View through Banks, mentioned there, p. 106) I. TEXT II. OTHER INDICIA: Goals/structure of statu...