Dressler Crim Law Outline PDF

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Dressler Crim Outline Part I: Background Theories of Punishment a. Utilitarianism: maximize well-being of society; seeks to deter. b. Retributivism: punishes because deserving; paying his debt. Proportionality: ∆ ’s punishment must be proportional to crime. a. 8th Amendment prevents cruel and unusual punishments. b. Utilitarian: no more pain than necessary. c. Retributive: proportional to culpability. Principles of Legality a. No punishment w/o law. b. No retroactive law making (ex post facto) c. Statutes should be understandable; gives people have notice. d. Statutes should not be overbroad; prevents discrimination. Part II: Actus Reus A voluntary act or omission that results in the prohibited social harm. a. Act a. Common law – willed, muscular contraction. b. MPC – no definition, but cannot be reflect or convulsion. i. Under MPC, one voluntary core act can convict. b. Omission a. Must be a legal duty to act. i. Statute ii. Status relationship iii. Contractual duty iv. Voluntary assumption of car v. Created the peril b. Proving mens rea from omission is near impossible. Part III: Mens Rea ∆ must act with required culpability, mental state or fault. a. Common Law a. General intent – intend to cause prohibited act w/o specific result. Just requires a culpable mental state; not over and beyond. b. Specific intent – intent to go over and beyond actus reus, or had knowledge of attendant circumstance. i. Intentionally – consciously intended result ii. Knowingly – aware of, correctly believes in or suspects attendant circumstance exists; acts anyway

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iii. iv.

Recklessness – consciously disregards a substantial and unjustifiable risk Negligent – should be aware of risk taken; “gross negligence” Malice – intentionally or recklessly causes social harm

v. b. MPC a. A person is guilty of an offense if they acted i. Purposefully – conscious objective to cause result ii. Knowingly – aware the result is “practically certain” iii. Recklessly – consciously disregards substantial and unjustifiable risk iv. Negligently – actor is not aware of risk, but should be (gross deviation)

Strict Liability p. 139 No mens rea requirement. a. Common Law a. Malum prohibitum (wrong b/c prohibited; public welfare offense; ex. Parking ticket) b. Malum in se (inherently wrong; non-public welfare offense; ex. Statutory rape) b. MPC a. No conviction unless some form of culpability for each element (2.02) b. Violations do not require mens rea, but crimes do. (2.05) Part IV: Mistake of Fact (or ignorance) ∆ shoots and kills B, believing he killed a deer. Is he guilty of murder? a. Common Law (complicated) a. Strict Liability – no mistake of fact negates criminal responsibility, ever, no matter how reasonable. b. Specific Intent - ∆ is not guilty of an offense if his mistake of fact negated specific-intent portion of crime. Doesn’t matter how unreasonable. c. General Intent - ∆ is not guilty if mistake of fact was reasonable. i. Moral Wrong Doctrine - ∆ is guilty if, even though his mistake of fact was reasonable, it was morally wrong. ii. Legal Wrong Doctrine – if conduct causes social harm prohibited by (more serious offense) X, he is guilty of that offense if he would be guilty of (less offense) Y if facts had been as he supposed. b. MPC (straightforward)

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a. Elemental approach; Section 2.04(1) provides that a mistake is a defense if it negates the mental state required to establish any element of the offense. Either he had culpability, or he didn’t. i. Exception – defense of mistake of fact is not available if the actor would be guilty of another offense had the circumstances been as he supposed. (A variation of the common law legal-wrong doctrine. Part V: Mistakes of Law The law treats mistake of law more strictly than mistake of fact and allows for exculpation less easily. a. Ignorance of the law is not an excusing defense. a. Exceptions – Reasonable Reliance Doctrine i. A person may rely on an interpretation of the law later determine to be erroneous. 1. One cannot rely on his own interpretation of the law or provided by private council. There is a defense, however, if the government gave a faulty interpretation of the law. b. Fair notice and Lambert principle. a. Everyone is presumed to know the law, but there can be a constitutional defense if there is no way ∆ could have known of recently enacted law. c. Common Law – mistake of law, whether reasonable or unreasonable, will not usually negate any mens rea element found in the definition of the crime. a. Specific Intent – mistake of law, whether reasonable or unreasonable, is a defense if the mistake negates the specific intent of the crime. (same as mistake of fact) b. General Intent – a different-law mistake is not a defense, whether reasonable or unreasonable. c. Strict Liability – different law mistake, unreasonable or reasonable, is not a defense. d. MPC – requires proof of culpability. a. 2.04(1) – mistake of law is a defense if it negates material element of the offense. i. 2.02(9) – mistake of law claim will relate to different-law mistake. Part VI: Causation Causation is the link between the actus reus and the social harm. Only really an issue with “result crimes”, mainly homicide. Ensures criminal liability is personal. Not to be confused w/ mens rea. 1. Common Law 3

a. Actual cause (cause in fact) – courts typically employ the “but for” test. Determines whether if, had it not been for the ∆’s conduct, the social harm would have occurred when it did. Identifies the candidates for responsibility of an event. a. Multiple actual causes – guilty if accelerated the result when it did. i. Substantial factor test - a defendant is criminally liable if his acts are shown to be a substantial factor leading to the harm to the alleged victim. b. Concurrent sufficient causes – each act alone was sufficient to cause the result that occurred when it did. b. Proximate cause (legal cause) – were the intervening party’s acts reasonably foreseeable? ∆ cannot escape liability if intervening act was reasonably foreseeable. a. Direct Cause – An act that is the direct cause of the social harm is also the proximate cause of it. No event of causal significance intervened between ∆’s conduct and social harm. b. Intervening cause – A “but for” cause that occurs after the ∆’s voluntary act. Usually comes in form of wrongdoing by a third party (typically negligence). If it relieves ∆ of liability, it becomes the superseding harm. c. Apparent Safety Doctrine – when a ∆’s active force has come to rest in a position of apparent safety, it ends the chain of causation. 2. MPC a. Actual Cause – “but for” test. Conduct must cause prohibited result. “An antecedent but for which the result in question would not have occurred.” i. For concurrent causes – each party is a “but for” cause, and there is no need for substantial factor test. ii. Proximate cause – 2.03 focuses on culpability. ∆ was the “proximate cause” if he caused the prohibited result with the level of culpability required by the offense. ∆ has culpability if the way which the result occurred wasn’t too “remote”. Part VII: Criminal Homicide The killing of a human being by another human being w/o justification or excuse. 1. Common Law A. Murder – malice aforethought. Conduct that manifests in extreme indifference to the value of human life. i. Malice – intent to kill, cause serious bodily injury, “depraved heart” (extreme recklessness), and felony. 1. With intent to kill, malice is “express” or “implied”. ii. Aforethought – required you to think about it (ambiguous). 1. Spur-of-the-moment killing may still count. a. First degree murder. (voluntary) 4

a. Willful, deliberate, premeditated. b. Poison, lying in wait. c. Felony (arson, rape, robbery and burglary). b. Second degree murder. (involuntary) a. Not premeditated/deliberate. b. Intent to inflict grievous bodily injury. c. “depraved heart” killings (extreme recklessness) i. Doesn’t intend to kill, but malice is implied due to the wanton and morally bankrupt character or behavior of the crime. Ex. purchasing vicious dogs and letting them run around. d. Any felony not enumerated in first degree. c. Proving Intent. a. Natural and probably consequence rule. b. Deadly weapon. d. Murder v. Manslaughter a. Malice is proven with the deliberate perpetration of a knowingly dangerous act or a conscious disregard for life. B. Manslaughter – without malice aforethought. Traditionally three types: i. Intentional - “sudden heat of passion” from “adequate provocation.” ii. Unintentional – lawful done in unlawful manner. Criminal negligence. iii. Unintentional – killing done in the commission of a non-felony crime. 2. MPC A. Murder (intentional) – (210.2) Purposefully, knowingly or recklessly under circumstances manifesting extreme indifference towards human life unless extreme mental/emotional disturbance (mitigated to manslaughter if there is a reasonable excuse (subjecting and objective)). B. Murder (unintentional) – (210.2) i. Felony murder equivalent - combines depraved heart with felony murder. Recklessness is presumed if engaged in/is an accomplice in the commission of or attempted robbery, rape, deviate sexual intercourse by force or threat of force, arson, burglary, kidnapping or felonious escape. ii. Depraved heart – guilty if acted recklessly or under circumstances manifesting an extreme indifference towards the value of human life. C. Manslaughter/Negligent Homicide a. Manslaughter (requires recklessness) (210.3) - Criminal homicide constitutes manslaughter when it is committed recklessly.

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b. Negligent homicide (210.4) – Depends on whether ∆ was aware of the unwarranted risk he was creating. Manslaughter if actor was “reckless”. Should have been aware of risk, but was not. 3. Felony-Murder a. Potentially offers strict liability for death that results from the commission of a felony. b. If someone is an accomplice to a felony-murder, they will be guilty of murder as well, despite their mens rea. c. Defenses i) Deterrence ii) Sanctity of human life iii) Transferred Intent iv) Easing prosecution’s burden of proof d. Res gestae requirement ii. Killing must occur during felony (common law). iii. Time and distance – must be a relatively close proximity to the murder and the felony. Can start when actor could be prosecuted for the felony, but doesn’t necessarily end after the felony is completed. iii. Causation – there must be a causal (actual and proximate) relationship between felony and homicide. e. Killing by a non-felon - Did the killing occur in furtherance of the felony? i. Agency approach (majority): the killer must be an actor of the felony. You cannot hold someone accountable for the actions of another non-felony agent, but you can if they are a co-felon. ii. Proximate cause (minority): a felony is liable for any death that is the proximate result of the felony. Was it within the scope? Can be liable even if shooter wasn’t a felon. Part VIII: Forcible Rape 1. Common Law definition: “carnal knowledge of a woman forcibly and against her will.” a. Actus Reus: male has sexual intercourse with a female (not wife) when it is forced, by means of deception, asleep/unconscious, or incompetent (drugged, mentally disabled, too young). General intent crime. i) Most states require force. ii) Consent must be freely given (voluntary). It is not rape if she is merely afraid. a) Some states draw bright line at age. b) Lack of consent can be established through resistance or non-resistance because of fear. c) Many states do not impose lability if someone other than ∆ drugged victim. 6

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Fraud in factum (lying, impersonation (deception) is considered rape). iv) Fraud in the inducement (generally not considered rape). b. Mens Rea – regards ∆’s state of mind in regard to mens rea. ∆’s intent does not need to be to rape, as it is enough that the ∆ harbored a morally blameworthy state of mind regarding consent. Therefore, if ∆ entertained a genuine and reasonable belief that he had consent, it is not rape. If he, however, was negligent or reckless regarding consent he will be guilty. Fits with mistake of fact defense. a. Not required in many states, but resistance can show mens rea. b. Most jurisdictions have a negligence standard. 2. MPC a. Actus Reus/mens rea: ∆ actor purposefully, knowingly, or recklessly has sexual intercourse with a female under any of the following circumstances: i) Female is less than ten years old. ii) She is unconscious. iii) Compels her to submit by force or threatening her (or another) with imminent death, grievous bodily harm, extreme pain or kidnapping, or gets her impaired. iv) It is a first-degree felony if ∆ inflicted serious bodily harm or female was not a voluntary social companion who previously gave him sexual liberties. b. Differences: MPC from Common Law i) “Sexual intercourse” is broader (genital, oral and anal penetration). ii) Focuses on male’s aggression rather than female’s lack of consent. DOES NOT require proof of resistance. iii) Rape if violence is targeted at third party. Part IX: Attempt One of three inchoate crimes. There is mens rea, but falls short of obtaining criminal goal. There are two types: complete and incomplete. a. Complete – performs all acts set out, but fails to obtain criminal goal. b. Incomplete – actor performs some necessary acts, but quits or is stopped. 1. Common Law a. Actus Reus: an attempt is made when conduct has passed the preparatory stage and has moved to the point of perpetration. Most jurisdictions used a substantial step rule, finding attempt whether or not the intention is accomplished. b. Mens Rea (specific intent): actor must have the specific intent to produce the proscribed result. c. Attempted Murder: actor must know there is a high probability death will result and can be inferred by whether the ∆ had a deadly weapon. 7

2. MPC a. Mens rea: Purpose/belief. 3. The four tests of attempt: a. Last step test: have to wait until last possible step before crime. b. Dangerous proximity: must be so near accomplishment that the crime would be committed if not for interference. c. Res Ipsa: it is unequivocal as to what happens next (paused movie example). Must be no alternate explanation as the act speaks for itself. d. MPC Substantial Step Test (5.01): must strongly corroborate actor’s purpose. i. Lying in wait ii. Enticing/seeking iii. Reconnoitering place of crime iv. Unlawful entry to place of crime v. Possession of materials for crime vi. Collection or fabrication of materials for crime vii. Soliciting an innocent agent e. Courts generally deny defense of abandonment, but some states accept the defense of total renunciation. Part X: Solicitation 1. Common Law – solicitation occurs when a person invites, requests, commands, hires or encourages another to engage in conduct constituting any felony or misdemeanor. No crime if the solicitor wants to carry the crime out himself. a. Mens rea: this is a specific-intent crime; he must intentionally commit the harm of the inchoate offense, with the specific intent that the other person consummates the solicited crime. b. Actus reus: takes place at time of solicitation. Neither party needs to perform any act in furtherance of the target offense. If you use an innocent person as an instrument to further your crime, and they believe the conduct being requested is lawful, the innocent agent is not guilty. c. You can have conspiracy w/o attempt (you both agree to kill someone) because the solicitor wishes to participate as well. d. Solicitation by itself cannot constitute an attempt. 2. MPC – A person is guilty of solicitation to commit a crime if: a. The actor’s purpose is to promote or facilitate the commission of an offense, and b. With such a purpose, he commands, encourages or requests another person engage in conduct that would constitute that crime. 3. Differences: a. MPC is broader (all crimes, not just felonies and misdemeanors). b. In MPC, you can be guilty of a solicitation to attempt.

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c. IN MPC, you can be guilty of solicitation if your request from someone would make them an accomplice (such as brandishing them with a weapon). d. In MPC, an uncommunicated solicitation still counts. Part XI: Conspiracy 1. Common law – an agreement, express or implied, between two or more persons to commit a criminal act or series of criminal acts. This law is controversial because a person may be convicted of an offense (common law) before committing any act in perpetration. Raises the risk for punishing people for what they say rather than what they do. a. Mens rea: dual specific-intent offense; two or more persons must 1) intend to agree and 2) intent that the object of their agreement be achieved. You cannot unintentionally commit a specific intent crime. b. Plurality: at least two people need the requisite mens rea for a conspiracy. Ex. if one of them is an undercover cop there is no conspiracy for either party. 2. MPC – A person is guilty of conspiracy with another person(s) to commit a crime if, with the purpose of promoting or facilitating its commission, he: a. Agrees that they will engage in conduct constituting such crime, attempt or solicitation. b. Agrees to aid such other person in the planning or commission of such a crime, attempt or solicitation. c. Plurality: establishes a unilateral approach. “A person” is guilty if he “agrees with such other person.” 3. Differences a. MPC - conspiratorial agreement must be a criminal offense. b. MPC – must commit an overt act. c. MPC – Establishes a unilateral plurality. 4. Different types: wheel, chain, and wheel-chain. 5. Defenses: a. Impossibility (common law only, because MPC just requires attempt) b. Abandonment (MPC only, negates actor’s dangerousness; common law rejects that you can undo an offense) Part XII: Accomplice Liability When a person who does not personally commit a crime may be held accountable for the conduct of another person whom he was associated with. Although there is substantial overlap between accomplice and conspiracy liability, there are some distinctions. 1. Overview a. A person may be held liable if the assist another in committing the offense. i. Assist – aiding, abetting, encouraging, soliciting, or advising. 9

b. A conspirator may be held accountable for the actions of his coconspirator who commits a crime in furtherance of their agreement, even if they didn’t assist. c. “Primary parties” are those involved in the personal commitment of the physical acts. d. ‘Secondary parties” are those who are associated with the primary party. 2. General Principles a. Definition of accomplice – if there is intentional assistance (aids and abets) b. Derivative liability – accomplice liability is derivative in nature. He is not guilty of “aiding and abetting”, rather, a secondary party derives liability from the relationship with the primary party; the primary parties acts become his acts. 1. Common Law – there are principles and accessories, each of which are divided into two subgroups a. Principle in the first degree i. General – physically commit the acts that constitute the offense or uses an innocent person. It is his conduct from which secondary liability is derived. ii. Innocent instrumentality – uses an innocent agent to commit his crime b. Principle in the second degree – guilty by reason of having intentionally assisted the commission of the crime (actually or constructively(lookout/getaway). i. Accessory before the fact – not actually or constructively present when the crime is committed. Often, this is someone who solicits, counsels or commands. ii. Accessory after the fact – with knowledge of guilt, intentionally assists the felon to avoid trial, arrest or conviction. This has to occur after the acts that constitute the crime have ceased. c. Mens Rea – must intentionally aid the primary party to commit the offense charged. This is broken down into “dual intents”, or intent to render the conduct that assisted and the intent that the primary party would commit the actual crime. i. A feigning accomplice doesn’t have the genuine intent for the crime to be completed (undercover officer) they lack the mens rea. You can also have “knowledge” w/o having “purpose”. ii. Must prove culpa...