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Class outline

Tuesday, June 28, 2011 6:28 PM

I. Introductory Material A. Basic Principles & Theories of Punishment, Presumption & Burdens B. Intro to Legality, Statutory Interpretation & Canons of Construction
Legality - Notice - no judicial crime creation
i.(strict) statutory construction/interpretation 1. Plain meaning 2. Canons of construction 3. Legislative history/intent ii.Vagueness/ambiguity doctrine - Void for Vagueness If there is an issue with notice/legality, must apply rule of lenity Lenity - too ambiguous i.Notice - reasonable person wouldn't know it's illegal ii.Unfettered discretion - police get to decide who is offending and who isn't

Goals of Interpreting Statute

i.Respecting "plain language" of statutory text ii.Discerning and effectuating the intent of the legislature/voters iii.Making sure interpretation in one case doesn't contradict interpretation in another case

Rules for Interpreting Statutes ( Canons of Statutory Construction)

i.Interpreter should always begin with text of statute itself ii.Statutes should be interpreted in such a way as to avoid constitutional problems iii.Noscitur a sociis - the meaning of doubtful terms or phrases may be determined by reference to their relationship with other words or phrases iv.Ejusdem generis - where general words follow a specific enumeration of person or things, the general words should be limited to persons or things similar to those specifically enumerated v.Rule of Lenity - all doubts when reading a criminal statute should be resolved in favor of the defendant due to liberty at stake and presumption of innocence

II. Constitutional Limits

Greg Rule

Same crime / different state Different crime / same state

A. 14th Amend. Due Process: Void for Vagueness

Void for Vagueness
i.Notice OR ii.Unfettered Discretion (curing one may not have an effect on the other)

B. 8th Amendment
Proportionality test always used in 8th amendment cases *** When not death penalty, more narrow principle of proportionality i.Evolving standards of decency ii.Justification Objective indicca National consensus (numbers in states) Proportionality analysis Gravity of offense v. harshness of punishment

Other crimes, same jurisdiction Same crime, other jurisdictions

C. 14th Amend. Equal Protect

14th Amendment - Equal Protection Clause

Strict scrutiny Discrimination (racial) "discriminatory purpose"

Discrimination Standard of Review

Race/origin Gender Strict Scrutiny Intermediate Scrutiny

Interest/Objective/ Reason
Compelling Interest Important government interest

Narrowly Tailored (least restrictive) Substantially related

------------------Everything else

------------------------- -------------------------------------- ----------------------------------------Rational Basis Legislative Reasonable

Heightened scrutiny = greater than rational basis Must prove purpose/intent to move from rational basis to stricter form of scrutiny Any sign of purposeful discrimination

III. Actus Reus (The Act) A. Introduction

Act Can't be compelled Voluntary Omissions

B. Exploring Actus Reus 1. Interrogating Voluntariness

Voluntariness - decision made through both objective and subjective assessment not black or white.

Unconscious - negates voluntary act Diminished capacity - negates mens rea Unconscious defenses go towards voluntariness of Actus Reus, NOT mens rea Unconsciousness must not be self-induced Liability Voluntary act or omission when capable NOT voluntary acts: 1. Reflex/convulsion 2. Movement during sleep/unconsciousness 3. Conduct during or resulting from hypnosis 4. Otherwise not a product of actor's effort whether conscious or habitual Cannot be based on omission accompanied by action unless: 1. Omission is ok by law 2. Duty to perform is imposed by law Possession IS an "act" so long as the person was aware they were in possession



2. Criminalizing Status?

3. Omissions a) Duty to Act

Liability for Omissions If defendant had a legal duty to act and was physically capable of acting Must cause social harm Defendant must act with the requisite mens rea Law generally doesn't criminalize failure to act EXCEPT: Special relationship - husband/wife, parents/children Contract - contractual duty to care for elderly person Statutory duty - duty to pay taxes Defendant creates risk of harm Voluntarily assumes care when otherwise wouldn't have duty

b) Good Samaritan Statutes

Good Samaritan rule - impose statutory duty to rescue or call for help when knowing someone needs help.

IV. Mens Rea (Guilty Mind) A. Intro to Culpability

Mens Rea Morally blameworthy Culpable mental state

B. Mens Rea and Statutory Interpretation

Common law
General intent Specific Intent

Model Penal Code

No distinction between general/specific

Willfully Maliciously Corruptly Intentionally Knowingly Recklessly

Purposely Knowingly Recklessly Negligently

Negligently (MANY terms)

C. Intro to the Intent Doctr. & Knowledge

Common law
Conscious object Cause some result or harm Knowledge to a virtual certainty

Model Penal Code

Purposely Knowingly (practical certainty)

Model Penal Code - cannot punish if he believed not something wrong Common law - can punish for not knowing but should have known Shortcuts to infer intent Natural and probably consequences doctrine May be deduced from surrounding circumstances

Common law - a person knows of a fact if he either is aware of that fact OR correctly

believes the fact exists Statutory - (equating positive or actual knowledge with willful blindness or deliberate ignorance)

D. Transferred Int. (Cont.)

Transferring Intent

Intent to do one thing (steal rum), cannot be used as a substitute for intent to do another thing (burn ship) But, intent for killing can be transferred when original target was missed and bystander was killed Strict liability - crime which government need not prove any mental state, ie statutory rape When a statute is silent re mens rea, presumption is that a mental state is required for criminal liability

E. Specific v. Gen. Intent

Common Law
Strict liability - intention doesn't matter

General intent - did something illegal intentionally, even if didn't know it was illegal Specific intent - did something wrong, knowing it was illegal or immoral, with purpose if

something bad

F. Strict Liability Offenses V. Mistake & Ignorance A. Mistake of Fact

involves a situation where you are ignorant of a fact relating to an element relating to your offense. Garnett is an example of Mistake of Fact case. As long as it's not a strict liability offense, based on some mistake of fact, mens rea element can be negated. Whether defense is negated will depend on general or specific intent, and if mistake is reasonable or not. Contemporary rule General Intent -- voluntary commission of morally blameworthy act Specific Intent -- "

" " AND Understanding of wrongfulness of act AND For achievement of further consequence OR Intent to do another/future act


General Intent Specific Intent

Good faith AND reasonable Good faith

Legal/Moral Wrong Doctrine

If your actions with the mistake would still be illegal, you are still culpable. If your mistake would make you guilty of a lesser crime, the jurisdiction has the choice of punishing at the level of the more severe crime.

Model Penal Code 2.04

If the mistake negates the mens rea term of the statute Legal wrong doctrine as practiced by model penal code - if conduct as mistaken would

still be an offense, you cannot claim mistake, but will not be punished at the level of the more severe crime. iii.Mistake of law (typically not a defense or will not negate mens rea) can exonerate where

1. There was no publication of the law 2. Estoppel

B. Mistake of Law
Ignorance of the law is no excuse (generally). EXCEPT Common Law: i.Entrapment by estoppel (reasonable reliance) - if you are told by someone who has duties for administration and enforcement of the law that your action is legal, you cannot be charged for it. ii.Crimes where knowledge (of illegality) is an element of the offense iii.Lack of fair notice (status crimes) Model Penal Code 2.04

C.L. Mistake of Fact

MPC 2.04 Ignorance/ Mistake

CL Mistake of Law
Generally, ignorance of the law is no excuse

Some fact of the case No general/specific intent (fact of consequence) person is mistaken on General Intent - Good Ignorance or mistake that Faith and reasonable negates the mens rea. Specific Intent - good faith (can be unreasonable, but not crazy). Navarro Bell - Legal/moral wrong doctrine (if your mistake is still part of a crime, you can be held responsible for the more severe crime) (not really difference between legal and moral wrong anymore) Legal Wrong Doctrine - you don't get benefit of claiming mistake defense if your conduct would still be different or lesser crime, BUT you will be punished at the level of the lesser offense. (Bell would have only been punished for prostitution under MPC)

Estoppel 1. Statute/enactment 2. Judicial opinion 3. Administrative order 4. Reliance on a person who

Exceptions: 1. Estoppel (Marrero and Clegg) If through legal announcement or through someone who has

has enforcement/ interpretation/ administrative duties under statute 2. 3.

interpretation or enforcement duties you're told not illegal Actual or apparent authority. Fair Notice (ie failure to register as sex offender) Knowledge of unlawfulness (Cheek and Bryant)

Only difference between MPC and CL estoppel = apparent authority

1. Entrap. by Estoppel
i.Entrapment by estoppel (reasonable reliance) - if you are told by someone who has duties for administration and enforcement of the law that your action is legal, you cannot be charged for it.

2. Ignor. & Mens Rea 3. Fair Notice Exception VI. Causation A. Intro to Actual (But for) & Proximate (Legal) Cause
i. ii.
o o

Actual Cause (but for) Proximate Cause (legal cause) Whether there were intervening superseding circumstances that were foreseeable (and basic fairness principle). Both culpability and foreseeability involved. Actual/Cause in fact ("but for" cause) (antecedent to events, set chain in motion) Legal/Proximate cause - determination process. Way of asking question where somebody sets the chain in motion, is it still fair to hold them responsible given the way events unfold. Ultimately a fairness question. Some superseding event that could not have been foreseen. That the harm would result in that way. ****** But for AND Proximate cause (not just but for reasons) (Not an either or - need BOTH) For proximate cause - NO intervening and superseding events, AND fairness Apparent safety doctrine - if someone sets in motion but for cause, and you reach a point of safety at some point, that breaks the chain of causation. If a place is a place of apparent safety is discretionary.

o o o

Intervening causes - acts or events that come after the defendant's act but before the social harm and also contribute causally to the social harm

B. Concurrence of Elements
Temporal Motivational Concurrence - link between commission of actus reus and maintenance of mens rea. If don't have both elements at same time, can have lack of temporal concurrence.

VII. Offenses: Homicide A. Intro to Homicide

Common law definition
Unlawful, unexcused, unjustified killing of a human being Common law rule of year and a day - victim has to die within year and a day of the harm being created.

Model Penal Code

Purposeful, knowing, negligent, or reckless causing the death of another human being

Malice : how to prove

i.Intent to kill (ie deadly weapon rule) ii.Intent to do great/serious bodily injury iii.Depravity - malignant heart Implied malice iv.Felony intent (fake intent related to another crime)

B. Intentional Killings 1. Murder (Exp. Malice); Degrees

i.Common law (malice) Express malice (intent to kill/intent to do serious bodily injury) Distinction of degrees (1st and 2nd) Premeditation/deliberation 1st degree FMR 2nd degree FMR WA statute 1st degree 2nd degree Know how premeditation/deliberation work to distinguish ii.MPC

2.10 A murder - knowing or purposeful homicide No degrees of murder Degrees of felony

2. Manslaughter (Vol.)
1.Common law (w/o malice) Voluntary Provocation Categorical Reasonableness Mere words Time framing Personal background factors in terms of reasonableness 2.MPC

210.3(1) No distinction between voluntary/involuntary Extreme Emotional Distress - turns murder into manslaughter Objective reasonableness Subjectivity? (Hybrid)

a) Provocation

Categorical o Stopping someone in commission of felony o Crime against a loved one o Stopping an illegal arrest o Mutual combat o Discover your lover in the adulterous moment Reasonableness o Provoked o Remain under the provoking influence during the event

Normal common law rule - mere words rule - words not enough to provoke

b) Ext. Emot. Dist. & Alt. Rule(s)

WA Statute
o o o o

Murder 1st degree RCW 9A.32.030 - premeditation Murder 2nd degree RCW 9A.32.050 - other than premeditated Intentional/unlawful killing of a fetus RCW 9A.32.060 (form of manslaughter, 1st degree) WA has depravity, no merger doctrine, no provocation

C. Unintentional Killings 1. Depraved Heart (Imp. Malice)


Common law (worded any way as long as explains poor risk calculation Type/level of mens rea required (Knoller) Subjectivity? MPC 210.2(1)(b) Reckless with extreme indifference to human life WA Statute RCW 9A.32.030 - Extreme indifference to human life 1st degree (odd, most are 2nd degree)

2. Manslaughter (Invol.)
1.Common law (involuntary) Culpable or criminal negligence (greater than simple) 2.MPC 210.3(1)(a) Homicide that is reckless without extreme indifference to human life

WA Statute
1.No voluntary/involuntary 2.1st degree RCW 9A.32.060 - recklessness 3.2nd degree RCW 9A.32.070 - criminal negligence (involuntary)

3. Felony Murder Rule (FMR)

1.Common law 1st Degree (enumerated/listed) 2nd Degree (Common Law)(all other felonies) 2.MPC 210.2(1)(b) Reckless/extreme indifference During the commission of listed felonies Limits on FMR Felony intent is not intent for murder, simply intent to commit felony.

4. Limits on FMR
Inherently dangerous felonies (2nd degree/common law)

a. In the abstract? Ie is meth dangerous to manufacture i. CA - high probability ii. GA - risk of death b. On the facts/under the circumstances? Ie was that particular felon in possession doing so in a dangerous way? Res Gestae a. Commission i. Not just the actual event but up until when you get into place of temporary safety ii. Limits on time/place/" furtherance" b. Causation analysis i. Only care about but-for? ii. Requiring a measure of direct causation --> proximate cause

Merger (which felonies can be predicate for FMR without merging with felony murder)

(Lesser Included offenses) a. Predicate felony must be independent b. Predicate felony must not be integral to homicide offense c. Rules: i. No lesser included offense ii. No assaultive conduct Third Party a. Proximate cause rule - if the death results from the crime and was reasonably forseeable, can be held liable b. Agency rule - you are responsible from the deaths that result from the acts of you or your cofelons. Canola c. Alternatives: i. Jurisdictional gun battle rule - first shot is the proximate cause, no matter whose shot caused the murder ii. Provocative act murder - anything that is provoking that causes a gun battle is proximate cause for the murder

Differences in WA
WA - anomolies

Depravity = murder Most jurisdictions have provocation or EED in manslaughter - not WA. Seems to purposely remove provocation or EED. WA manslaughter 1st and 2nd degrees basically both involvuntary

WA Rules
Res Gestae - in furtherance of and immediate flight therefrom Agency rule - WA uses agency rule rather than proximate cause rule, with some an allowable defense if meet 4-prong test Malice is imputed (inferred) during the commission of an inherently dangerous. Doesn't need to be there. But rules on how it's imputed (recklessness, criminal negligence, etc) may change depending on the jurisdiction. Murder - most forms of homicide are lesser included offenses

VIII. Sexual Offenses A. Introduction B. Forcible Rape

o o o

Forcible Rape - the carnal knowledge of a woman, not the perpetrator's wife, forcibly and against her will Forcible Rape = General Intent Crime Move from forcible compulsion standard Force = violence

o o

Resistance Consent Moving to only consent standard Questions of mistake Consent can be inferred - does not have to be explicit, as long as suggests to reasonable person that consent is not being withheld. Some statutes still include force necessary to achieve the act, which can mean as little as penetration Consent can be withdrawn at any time. Once consent is withdrawn, the person has to stop within a reasonable time.

The Question of Force The Quest. Of Consent C. Sodomy

Has no force or non-consent elements

IX. Criminal Law Defenses A. Introduction

Case in chief defenses

failure of proof defenses prima facie defenses Defendant argues prosecution failed to meet burden of proof on at least one essential element of the crime (mens, actus, causation, concurrence) All defendant has to do is raise a reasonable doubt about existence of one element Unconsciousness and most mistakes = case in chief defenses

Affirmative defenses

Defense admits government met its burden of proof Defense argues defendant should be acquitted for some other reason Defendant bears burden of proof for affirmative defenses Typical burden of proof for affirmative defense = preponderance of the evidence

B. Justifications Self Defense

Necessity - must be necessary to use force Imminence - cannot be that threat was abstract, must be imminent Proportionality - measure of how much violence, response cannot be excessive relative to the threat Cannot be initiating aggressor - doesn't just mean the violence used, threat first could be enough

All of these measured through reasonableness standard. Subject to choice of objective vs. subjective Must have had an honest and reasonable belief that a. Was threatened with imminent threat of unlawful force, AND b. That the force used was bot necessary to repel the threat AND proportional to the threat Not absolute requirement (defendant does not have to be correct in the belief) Simply need to reasonably believe in need to act in self-defense

Self Def. & BWS Self Def. & the Reasonable Man?

Imperfect Self Def. & Defense of Others

Imperfect Self Defense

Honestly believe that force is necessary but belief is unreasonable Someone attacks with nondeadly force and wrongfully escalate by using deadly force Just like self-defense, but your reasonable-meter is off. Barnes thinks it's like applying mistake-of-fact to the self-defense argument. Instead of being mistaken about an element of the offence, here you are mistaken about an element of the defense.

Defense of Others (Justification)

When a person uses fore against another person to defend a third person thought to be in imminent danger of unlawful attack Still requires: o Triggering condition (third person under unlawful attack) o Necessity requirement o Proportionality requirement Also requires defendant honestly and reasonably believes the force used was necessary to protect third person from imminent unlawful attack. Act at Peril Rule - defendant who came to third person's rescue did so at his own peril - if he had no right, he had no defense Particular Status Relationship Rule - Third person had to be a close relative, servant or employee. Most jurisdictions got rid of Act At Peril Rule and Particular Status Relationship Rule

Def. of Habitation & Defense of Property

Original common law rule permitted on occupant of the dwelling to use any force necessary, including deadly force, if he reasonably believed the force was necessary to prevent an imminent unlawful entry

Some jurisdictions still follow common law, but modified to restrict use of deadly force to cases where intruder is going to commit unlawful entry AND commit a felony or cause other injury to occupants of the dwelling Other common law jurisdictions - deadly force may be used ONLY if reasonably believes intruder is going to commit unlawful entry AND forcible felony or kill or cause serious bodily harm Generally not allowed to use deadly force in defense of property

Common Law
6 factors 1. Harm avoided greater than harm caused 2. Legislature hasn't previously precluded as defence 3. Requires causal connection between illegal act and harm 4. No effective legal alternative 5. Clear & imminent 6. Can't be responsible for the original danger Imminence requirement May not use as justification to homicide (except under FMR for the underlying felony)

Model Penal Code 3.02

1. Harm avoided greater than harm caused 2. Code doesn't provide another defense to use instead 3. Can't have been legislative purpose to exclude 4. If an offense where mens rea term is reckless or negligent, can't use as a defense.

No imminence requirement Doesn't say that you can or can't use as justification for homicide

C. Excuse Defenses 1. Duress

Common law
1. Imminent Death or great bodily injury 2. Reasonable fear threat will be carried out if you don't commit the crime 3. No reasonable opportunity to escape the harm

Model Penal Code

1. Coerced through unlawful force (obj?) (person of reasonable firmness) 2. No available for negligence/recklessness conduct 3. No spousal coercion defense 4. Doesn't preclude 3.02 (necessity)

Difference between necessity and duress Necessity - choice between two harms for the lesser harm

Duress - choice taken away

2. Intox./Addiction
Common law
Early common law - was not a defense Modern Common law: a. Involuntary (someone slipped me a ***) Defense regardless of crime distinction b. Voluntary (Atkins/Frey) Specific intent - potential defense General intent - no defense New trend - discontinue voluntary intoxication defenses General Intent Specific intent 1. Voluntary intoxication - negates an element of the crime (mens rea) 2. Recklessness caviat 3. Intoxication not a disease 4. Involuntary intoxication (insanity)

Model Penal Code 2.08

Cannot use evidence of intoxication Can use evidence of intoxication to negate mens rea of crime

3. Culture?
No persay cultural defense o Mitigation (charge down and/or give lesser punishment) 1. Can negate the mens rea (question of mistake/ignorance of the law) o Claims of: 1. Reasonableness 2. Provocation 3. Ignorance/mistake o Temporary insanity

4. Insanity
Guilty but mentally ill. Sentences in mental hospitals usually longer than sentence would have been in prison.

Common law
M'Naghten rule: 1. Nature/quality of acts 2. Wrongfulness Know

Lack of substantial capacity Lack of capacity conform/control self (impulses) Appreciate

5. Diminished Capacity
Defendant who cannot prove he was insane at time of crime will seek to introduce evidence of mental illness as way of mitigating or eliminating responsibility for crime. 1.Negates mens rea 2.Mitigating the offense 3.Mitigating punishment Don't have to pick one over the other for insanity/diminished capacity. BUT, diminished capacity will allow someone to go free. Insanity puts them in a mental hospital.


Inchoate Offenses
Common Law
Act v. mere preparation (what's left to be completed) Specific intent - same (or narrower) intent as used for target crime Physical proximity - nearness to completing (not necessarily geographically) Dangerous proximity Nearness Dangerousness/harm Fear/apprehension act in furtherance can abandon during nearly any step but must be voluntarily (not because of fear of apprehension). no "impossibility" - Something that might fall under factual impossibility in CL is still chargeable under MPC. Depends on facts as defendant BELIEVED them to be. can be convicted of solicitation even if it's not communicated

Model Penal Code

Substantial step (what's been completed) attendant circumstances standard (mens rea as def believes the circumstances to be, whether he's correct or not)

Actus Reus Mens Rea


Abandonment can't abandon once you commit an


See Factual/Legal impossibility


cannot be convicted of solicitation if it's not communicated

A. Attempts

1. Intro, Actus Reus & Abandonment 2. Mens Rea 3. Impossibility Def. (Common law)
Legal Impossibility Pure - conduct not criminalized (ie belief with a 17 year old is against the law) Hybrid - some sort of factual mistake regarding legal status of one of the attendant circumstances makes it impossible for crime to be committed (ie belief that a 25 year old is pretending to be 15) Factual Impossibility Mistake of fact (ie belief that a 15 year old is in the bed but not)

B. Solicitation
Attempted solicitation = double inchoate crime Intents: 1.To solicit assistance 2.That target offense be completed Typically merges with target offense. (If convicted of attempt or target crime, cannot be convicted of solicitation) If you ask someone to do something and it's achieved, you're convicted of target offense. If they don't achieve it, can be convicted of attempt and solicitation.

C. Conspiracy 1. Intro
Criminalizes act of entering into an agreement to do something criminal Two intents: 1. Intent to enter agreement 2. Intent to commit the target crime Rule Choice 1. Agreement 2. Agreement + overt act *** Used by most jurisdictions now.

2. The Agreement
Unilateral - agreement where only one person required to know what's really going on Bilateral - agreement where both parties are on the same page and know what's going on MPC - Unilateral WA - bilateral

3. Mens Rea
Like attempt, must be specific with intent/mens rea requirement for conspiracy.

4. Pinkerton Rule
Pinkerton - each party may be liable for substantive criminal offenses committed by a co-conspirator during the course and in furtherance of the conspiracy. Applies: 1. Where substantive crime is also a goal of the conspiracy 2. Where substantive offense differs from precise nature of ongoing conspiracy but facilitates implementation of its goals Alvarez expanded Pinkerton to include reasonably foreseeable but originally unintended substantive crimes

5. Shape of Conspiracy
How Many Conpiracies
For overarching conspiracy, must know or should have known that the other conspiracies must exist in order to complete the target offense.

XI. Accomplice Liability A. Introduction & Common Law Appr.

Specific Intent Crime

1. 2. 1st degree - person who actually committed the acts constituted the offense or used an "innocent instrumentality" to commit the offense 2nd degree - person who intentionally assisted the commission of the crime in the presence of the principle 1st degree i. Actual presence (inside the bank during the robbery) ii. Constructive presence (accomplice outside the bank watching for police) Before the fact - intentionally assisted in commission of the crime, but not present when crime committed (ie person who buys the guns) After the fact - helped principle 1st degree and accomplices avoid arrest, trial, or conviction

1. 2.


Modern Approach Liability: Accomplice v. Principal

You are responsible when: i. You dupe someone ii. If you agree to conspiracy for something you are vicariously responsible for actions of others iii. Is when you are an accomplice, such as: purpose of promoting and facilitating, you solicit such other person to commit a crime. If you aid agree or attempt to aid the person committing. If you have a legal duty to prevent, you fail to make proper effort. The law has explicit language.

MPC 2.06 Complicity

XII. Theft Offenses


Common law - different categories of crimes listed under theft. Must charge with particularity. Must offer evidence or proof of the particular theft offense charged.


Theft By Category
trespassory taking of another with intent to deprive. If later don't intent to permanently deprive, then no longer larceny. (larceny v. grand larceny only used for punishment issues and only based on amount, usually $500 threshold)

Larceny by trick
difference between possession and custody: 1. Possession - right to do with property plus what you wish to do with it 2. Custody - just physical control of the property Involves committing the larceny through some form of deceit. o IE receiving the item under some false pretenses, but intend to deprive the person of the possession the whole time Constructed possession o Employer delivers property to agent o Owner of property mispalces or loses o Owner delivers property as part of agreement in owner's presence Breaking Bulk doctrine o Actually did give away constructed possession o Don't have larceny by trick o Didn't give possession of everything - gave packages but content of packages remain with owner.


give something to someone where they are supposed to take care of it or return it, but instead convert it to their own possession o Intentional conversion of property of anotehr by somenoe already in lawful possession or by soeone it has been entrusted to. o No deceit involved in taking possession of the item.
o o

False Pretenses
Makes a distinction between possession and title Requirements: Make a false statement of fact That false statement causes victim to pass title of property to you, where defendant knows statement is false and intends to defraud the victim Difference between possession and title is custody. Possession includes custody, title does not have to. Only works for things that society has clearly designated a role for title

Difference between larceny by trick and false pretences:

o o

If you get possession by deceit, it's larceny by trick If you get title by deceit, it's false pretenses


Theft (Consolidated)
MPC Consolidation 220 221 - Burglary 222 - Robbery (aggravated) 223 - Theft and related offenses Consolidation - any of forms of theft that follow can be proof of theft 223.2 - Unlawful taking - (CL Larceny) (no *permanent* intent to deprive) 223.3 - Theft by deception (CL Larceny by trick/embezzlement/false pretenses) obtaining property of another by deception 223.4 - Extortion - purposesly obtaining property of another by threatening 223.5 - Loss or mislaid - to what extent you're responsible when something is lost or mislaid - knowledge - must take reasonable steps to restore to owner


Aggravated Offenses
(felonious taking of person property from his/her person or immediate presence accomplished through use of force)

Burglary (structure)
Voluntary/intentional entry (unlawful) in a building with felonious intent Common Law (unlawful) Entry Structure Felonious intent

Robbery (person)
a. b. c. larceny but with using force or fear against a person Felonious intent Force or putting in fear Taking and carrying away property


Word Limits: Exam questions: Short answer: 45% of grade 1. 500 words 2. 500 words 3. 750 words Essay: 55% of grade

Ambiguity (Lenity) v. Void for Vagueness

(more than one meaning or a confused premise) Statutory construction - court looks at statute to figure out what legislature meant. When we can't figure out what they meant, that's where lenity comes in.

Void for vagueness

particular type of ambiguity - jurisdiction criminalizes something most common people think is innocent behavior (not criminal). Overbroad - criminalizes things that will catch a lot of people who don't mean to be caught by the statute Notice problem Enforcement - arbitrary enforcement

Mens Rea Questions

Statutes that don't appear to have a specific mens rea term - should that be read as strict liability or general intent?

With exception of some rare statutes ie statutory rape, almost all statutes will be at least general intent. Strict liability will only be such if it has strict liability language in the statute If there are no specific mens rea terms at all, it's probably a general intent. Barnes will probably put a bracketed term to indicate level of mens rea required though

Can you argue mistake for any strict liability?

NO - Can't negate a mens rea term that doesn't exist.

What is mens rea term for MPC 213 "if he compels"

MPC for rape/sexual assault Compels stands in for forcible compulsion - purposeful conduct

Comparative Questions
Common Law
Degrees: Murder1: 1. Premed/delib 2. Special means 3. Felony murder (enumerated) Murder2: (all other) 1. Express malice (intent without

Murder1: 1. Premed/delib 2. Depravity 3. FMR (enumerated) Murder2: 1. All other not premed 2. Provoked killing

No degrees for homicide

2. 3.

premed) Implied malice (depravity) CL felony murder Manslaughter1: 1. Reckless conduct 2. Unborn child Manslaughter2: 1. Criminal negligence Manslaughter: 1. Recklessness (w/o indiff) 2. Mitigated from murder (EED)

Manslaughter: 1. Voluntary (provocation/heat of passion) 2. Involuntary (culpable negligence) Intoxication: Invol intox (defense to any crime) Vol intox 1. general intent crime - no defense 2. Specific intent crime - may negate mens Current trend: no defense for Vol Intox Attempt: CL test for Actus Reus What remains to be done Nearness to accomplishment Legal (hybrid)/Factual Impossibility Always specific intent Insanity: Knowledge of nature/quality and wrongfulness If doesn't say legal or moral wrong, then what Is deemed morally wrong by society's standards Mistake of Fact a. Mistake about one of the elements of the crime b. Specific intent good faith

Vol Intox 1. If negates an element of crime (normally mens rea) 2. Recklessness caveat - if you could have appreciated Risk while sober, don't get the defense Invol Intox/Pathological a. Looks like insanity defense Attempt: Substantial step towards What you've done Corroborates criminal purpose Depends on facts as you believed them, impossibility not available

Insanity: Lack of capacity to appreciate (more forgiving than knowledge Lack ability to conform conduct Allows you to choose between legal or moral wrong

Mistake of law/fact = defense a. When negates mens rea b. Statute creates specific mistake defense Legal/Moral wrong:

General intent good faith + reasonable Mistake of Law a. Not believing your conduct is criminal b. Generally not a defense c. Estoppel (reliance on apparent authority) Legal/Moral wrong: If already knew doing something else wrong in addition to crime, will be charged at the greater crime.


If already knew doing something else wrong in addition to crime, will be charged at the lesser crime If don't believe conduct is criminal, can be absolved when: a. Unpublished law b. Reasonable reliance a. Statute/enactment b. Judicial opinion/judgment c. Admin order/grant of permission d. Official interpretation of public official with admin/enforce authority

WA is a MPC state for MPC, Using the 4 MPC words

Express malice

1. 2. 3. 4.

Thibeault decision Entry Structure License/permission Felonious intent