Crim Law

• 1. retribution
• 2. incapacitation
• 3. denunciation
• 4. deterrence
• 5. rehabilitation

condemn openly and publicly to declare an act/thing a crime and prescribe punishment for it

society registers its disapproval of act; society won't tolerate this behavior

• 1. reaffirm/maintain social values
• 2. educate public as to social rules
• 3. show that system works
• 4. prevent vengenace
• 5. communicates shamer's disgust for both offender and offense

• 1. members of potentially identifiable group
• 2. sanctions must actually compromise standing in that group
• 3. shaming must be communicated and executed
• 4. fear of shunning
• 5. ability to regain standing UNLESS so bad as to warrant exile or demotion

• 1. worse on social norms of decency and dignity even more so than prison
• 2. private retaliation - "lynch mob justice"
• 3. lack of deterrence when prison would be more effective
• 4. discourages reintegration of offender into society

society is getting its revenge; punishment is repayment of D debt to society incurred by the harm caused

crime justifies the punishment

"eye for an eye" or "just desserts"

what was done = what the punishment is

equality of punishment/sense of fittingness

• 1. no distinction b/t specific and general intent
• 2. backward looking - retroactive orientation
• 3. severity of punishment determined by: (1)mental state; (2) harm done; (3) past acts
• 4. not concerned with consequences or usefulness of the punishment but instead of how blameworthy D is
• NOT TRYING TO MAKE OFFENDER BETTER!!! - ONLY WORRIED ABOUT GUILT

no workable way to determine just what punishment a criminal deserves...not always going to fit the crime (too harsh or not harsh enough)

disabling or depriving the offender of the ability/choice to commit crime by taking away tools of the offense (i.e. - liberty, freedom of movement, license, etc)

nothing else short of removal of offender will keep society safe

prevention of furture crimes by physically restraining D from offending again while confined

• 1. collective - same sentence for same crime regardless of the circumstances/offender
• 2. selective - looks to indvl offender, potential for different sentences for the same crime

• 1. requires prediction of future
• 2. prison is best trade school in America

notion of reducing crime thru fear of punishment

• 1. specific/special - use of punishment to frighten the person actually being punished from re-offending
• 2. general - makes an example of offender so that like minded ppl will be discouraged from committing the same act - objective lesson

future oriented focusing on the consequences of its imposition...what effect will the punishmet of this person have on both him and society as a whole?

affects choice rather than addressing conduct

• 1. general and specific intent matter b/c can't prevent what not intended
• 2. does conviction lead to the desired deterrent effect?
• 3. indvl must understand that his conduct is wrong and must fear the consequences

vast majority of those incarcerated are repeat offenders therefore deterrence not really effective b/c not concerned with consequences of their actions

process of seeking to improve criminal's outlook so that he can function in society w/o committing future crimes

change the character of the offender rather than focusing on conduct

people are capable of change/rehab and they will change

incarceration/society is equipped to do rehab

directed at repeat offenders

• 1. seriousness of crime
• 2. blameworthiness of criminal
• 3. characteristics of criminal...likely to be rehabilitated?
• 4. existing treatment methods

• 1. can't change someone who doesn't want to change
• 2. requires both public support and funding that aren't always adequately provided
• 3. creates potential problems of fairness

• 1. judicial
• 2. legislative
• 3. executive
• 4. jury
• 5. statutory interpretation (judicial)

punishment is justified if and only if some net social gain is achieved

(i.e. - deterrence, incapacitation, rehab)

punishment is properly inflicted b/c, and only b/c, the person deserves it

(i.e. - retribution, denunication)

punishment is justified if and only if it achieves a net social gain and is given to offenders who deserve it

• 1. adaptable
• 2. clears up ambiguities in statutory language
• 3. retroactive application (case at hand)
• 4. quick
• 5. uninterested party

• 1. boundy by precedent
• 2. don't konw what goes on in the judge's chambers...accountability?
• 3. difficult to locate
• 4. no notice when applied retroactively
• 5. undemocratic - not elected
• 6. creates doubt when law constantly changing

either making or interpreting law when reading a statute and applying it to the facts of the case...depends on how the judge views the separation of powers

has the ultimate authority in the definition and creation of crimes subject only to the constitution

definition - no statute, no crime, no punishment even if society thinks conduct is wrong

notion of legislative supremacy

must be a statute that incorporates CL into the Code; placement of this statute will determine if it applies to all areas or just particular area of law

NC - placement is such that applies to all law

• 1. elected therefore in touch with society needs/wants
• 2. accountable
• 3. process is open to the public
• 4. ability to create broad sweeping laws
• 5. internal checks and balances
• 6. advance notice
• 7. robust debate and ability to thoroughly research

• 1. potential for sloppying drafting b/c not required to be lawyers
• 2. special interest legislation
• 3. slow
• 4. inflexible/nonadaptable therefore must be amended

enforcement of criminal laws enacted by legislature

power to pardon offenders exercised by president or governor

nullifies application of criminal law in particular case

• 1. draft/submit proposed legislation
• 2. lobby for or against legislation

to charge or not to charge nullifying statute or expanding category of offenses included under it

look to the utility of bring charge v. cost of prosecution

officials/agency being delegated the power to create and define crimes by legislation (i.e. - FDA)

legislature enacts a statute and then gives power to executive to decide what it views is necessary and proper under the statute (implied delegation example)

throwing out the law and doing what feel is right/better b/c feel that law got it wrong in this instance

• 1. allows for flexibility in extreme circumstances such that don't have to do away with the law completely
• 2. society itself tolerates the behavior being condemned by law

• 1. elected
• 2. quick
• 3. accountable
• 4. robust debate and open to public

• 1. appointments
• 2. language so technical that public not really put on notice
• 3. abuse of discretion is possible
• 4. power ultimately in hands of one person

should they be made aware of this power in the jury instructions?

process of determining the meaning of legislative act

• unambiguous language - look no further than statute
• ambiguous language - look to intent of legislature by examining intrinsic, extrinsic, and policy based sources

policy to construe a penal statute as favorably for the D as its language and the circumstances of its application may reasonably permit

the materials are part of the official act - language of the statute, titles, punctuation, grammer, definitions

outside the act but w/i the legislative process that created the act - legislative history

separate from law and its process; considerations/sources based on societal and legal choices

i.e. - common law, constitution, etc

rule of lenity

• 1. intentionalism
• 2. textualism
• 3. dynamic statutory interpretation

focus on the text of the statute and extrinsic sources to find specific intent of legislature with regards to ambiguous language language and general intent

purposeism/overreaching goal of legislation

a think may be in the letter of the statute yet not in the statute b/c it isn't in its spirit nor the intentions of the makers

• 1. static - unchanging with time
• 2. can't truly know what was intended

focuses on the intrinsic sources, particularly the text, to discern the meaning of the language actually used

uses least amount of "additional sources" - dictionary ok

text should be construed reasonably to contain all that it fairly means

unwilling to use any sort of legislative history

focuses on what the enacting legislature would have wanted given the current situation

statutes should be interpreted in light of their present societal, political, and legal context

involves textual, historical, and evolutive prespectives - weight given to each depends on the circumstances

how far to go b/4 get something the legislature never intended?

• 1. language of statute
• 2. intent of legislature
• 3. common law
• 4. rule of legality
• 5. rule of lenity
• 6. jurisdictional (separation of power)
• 7. DP (notice and fairness)

• 1. overbreadth - law attempts to prevent/prohibit behavior that is granted by the constitution
• 2. vagueness
• a) Notice - don't know what conduct is prohibited
• b) Discretion - doesn't provide standards/guidelines fro police in implementing the statute which could result in arbitrary and discriminatory enforcement

conduct element of the crime

crime requires a voluntary act

some form of bodily movement

• 1. status
• 2. voluntariness
• 3. time framing
• 4. omission
• 5. possession
• 6. VL

NO - can only punish person for his actions

can't be punished for being, must be punished for doing

status is not punishable but a condition resulting from that status is punishable (i.e. - public drunkeness)

product of effort, determination, obligation, or compulsion

done by intention and not by accident

addiction is equated to an illness and punishment violates 8th Amendment prohibiting cruel and unusual punishment

actor made a conscious choice to act, even if coercion influenced the choice

yes due to circumstances surrounding the act; i.e. - duress

this is a question for the jury to decide - RPP

• 1. reflex/convulsion
• 2. sleepwalking or unconscious movement
• 3. conduct under hypnosis
• 4. bodily movement not a product of actor's effort or determination

NO but conduct must include a voluntary act...time framing plays a part in determining where the line is drawn

can expand the period in which the court can search for a voluntary act when the statute creates wiggle room b/c it doesn't define from when the conduct is to be measured

want to make it as broad as possible

what to make as narrow as possible

criminal liability for failure to act

must include a legal duty to act and then failure to do so...non-action alone is not sufficient

• 1. stipulated omission - made an element of the crime
• 2. denial of legal duty - treat omission with a duty as the equivalent of an act

• 1. duty by statute
• 2. duty by status - parent/child
• 3. duty by K - babysitter
• 4. duty by voluntary assumption - person drowing where told others not to worry b/c you would help and then don't
• 5. duty by creating the risk

must be instructed that for culpability must have been a legal duty and not just a moral obligation to act and what that legal duty was under the circumstances

something on someone's person, in their clothing, or withing their physical custody (i.e. - blackberry in pocket)

actual possession is lacking but the person nevertheless exercises some sort of control/dominion over the item (i.e. - jacket in locker)

YES - must know you have it in order to possess it

neither yet still punishable under law b/c allows police to arrest/convict an indvl b4 he can use the prescribed object

incapacitation theory

This is an exception and not the rule, must be clearly expressed in the statute and is not recognized everywhere

due process

balancing test - public interest protected v. intrusion of personal liberties protected by DP

• Yes - fine, loss of license
• No - incarceration

concurrence and causation

• 1. mental state is question of degree
• - CL was no variety; either had it or didn't
• - ML recognizes range of mental states that correlate with diff degrees of blameworthiness
• 2. Crimes/D can possess more than one mental state
• 3. Mental state is relational

• conscious object
• "result" oriented
• specific to D
• motive irrelevant

• aware that is practically certain; aware such circumstances exist
• "conduct" oriented
• specific to D

• conscious disregard
• substantial and unjustifiable risk
• "attendant circumstances"

test - Did D disregard risk and was that disregard a gross deviation from RPP in D situation?

issue - justifiability

• should be aware
• substantial and unjustifiable risk

Test - should D have been aware and was his failure to perceive that risk a gross deviation from RPP awareness?

this is the exception and is attached to things that are bad b/c they are prohibited (i.e. - speeding)

• generally seen with public welfare crimes
• deterrence theory

MPC - must be clearl stated in statute

• 1. leg history and context
• 2. guidance from other statutes
• 3. severity of punishment
• 4. seriousness of harm protected against
• 5. D opportunity to ascertain true facts
• 6. difficulty of proving mental state
• 7. # prosecutions expected under the statute

fact specific

• 1. "But for" Cause - actual cause
• 2. Proximate Cause - legal cause
• - foreseeability
• - fairness

both mental state and conduct at the same instant

death must occur w/i this time frame from the homicidal act to prosecute D for murder

not widely followed; Not in NC

if D intends to bring about a certain sort of harm and then does bring about that general type of harm, the fact that the victim is diff than intended will not make a difference

doesn't apply to crimes of attempt....must actually kill someone

• 1. some form of conduct
• 2. a resulting death
• 3. causative link b/t conduct and death

• murder = malice aforethought
• manslaughter = no malice aforethought

• 1. intent to kill
• 2. intent to do serious bodily harm
• 3. extreme recklessness
• 4. felony murder

• first degree - intentional (malice with W, P, & D); enumerated felony murder
• second degree - intentional (malice w/o P&D); extreme recklessness; non-enumerated felony murder
• voluntary manslaughter - intentional + provocation
• involuntary manslaughter - unintentional (criminal negligence); misdemeanor manslaughter

think about beforehand; quantity

measure and evaluate the major facets of a choice/problem; quality of thought process

• 1. means something more than purpose to kill - time for "second look"
• 2. essentially means intent to kill - spur of the moment killing will do; 1 second enough

• 1. type of weapon
• 2. manner of use
• 3. nature, extent, location of wounds
• 4. conduct of D

• 1. Did D think about beforehand?
• 2. Did D measure and evaluate the major facets of a choice/problem?
• 3. Was the D thought process undisturbed by hot blood...kill in cold blood?
• 4. Did the D weigh/reason for a period of time, however short, after which the intent to kill was formed?

intentional killing committed in the heat of passion after adequate provocation

No, not w/o more

• 1. legally adequate provocation
• 2. cause state of intense passion
• - sudden, one where RPP would lose control
• 3. without time to cool off
• - both subjective and objective

• 1. recklessly - primary mental state
• 2. purpose, knowledge, or reckless+ but are done under influence of EMED for which there is a reasonable explanation or excuse

resentment/pent up rage from prior insults or humiliating events come to a head making the final event the last straw before the attack even though that final event is insignificant in of itself (minority view)

• - killing committed with criminal or gross negligence
• - killing committed during crime that isn't a felony (misdemeanor manslaughter)
• - negligent homicide - hinges on what actor's actual situation is and how RPP would have acted in that situation

any killing committed caused during commission or attempt to commit a felony

• 1. D guilty of underlying felony
• 2. felony inherently dangerous
• 3. felony separate from the killing itself; independent felonious purpose
• 4. killing during or in immediate flight from the felony
• 5. death is foreseeable
• 6. victim isn't a co-felon

the homicide must be committed by a felon, his agent, or someone under his control

majority and NC view

minority view

• allow felony murder even when the victim is a co-felon if the prosecution can prove:
• (1) felon harbored malice aforethought
• (2) killing was attributable to the act
• (3) was one of the enumerated felonies (to get to 1st degree)

some jurisdictions allow felony murder even if hte actual killing was perpetrated by a witness/intended victim and the co-felon was a substantial factor in causing that death

• 1. as long as the homicide is the direct causal result of the felony the rule applies whether or not the death was a natural or probable cause of the felony
• 2. presumes extreme recklessness
• 3. no intentional act is necessary
• 4. murder regardless of whether it was willful, deliberate, and premeditate or merely accidental or unintentional, and unplanned

• 1. murder
• 2. manslaughter
• 3. criminally negligent homicide

• 1. intent to kill
• 2. extreme recklessness
• 3. felony murder

• 1. nature/magnitude of the risk
• 2. D awareness of hte risk
• 3. justifiability of the risk
• 4. degree of deviation from reasonable behavior

• OMG approach!!!
• Extreme indifference to value of human life

• 1. burglarly
• 2. robbery
• 3. arson
• 4. kidnapping
• 5. escape
• 6. sexual assault
• 7. rape

• 1. intentional (provocation)
• - extreme mental or emotional distress (P, K, R+)
• 2. reckless killing
• - killing where D is aware of and consciously disregards the substantial and unjustifiable risk of death

focus on issue of risk - ordinary recklessness

• 1. what was the probability that the death would occur?
• 2. was there a legitimate reason for taking the risk?
• 3. was the D aware of the risk?

• majority - gross negligence and gross deviation
• minority - ordinary negligence sufficient

• 1. did a violation of a criminal statute occur? (facial criminality)
• 2. if so, was that violation unjustified? (legality)
• 3. If so, was the person committing the violation excused? (responsibility)

• 1. justification
• 2. excuse

• 1. mistake of fact
• 2. mistake of law
• 3. self defense
• 4. defense of others
• 5. defense of property
• 6. necessity

• 1. intoxication
• 2. insanity
• 3. diminished capacity
• 4. duress
• 5. affirmative defenses

• 1. honest and reasonable fear (RPP)
• 2. imminent and unlawful threat (not future)
• 3. proportional response to threat
• 4. D not initial aggressor unless:
• - victim used deadly force against non-deadly force
• - initial aggressor withdrawn

• 1. actor believes that such force is necessary
• - subjective; if D is negligent or reckless than D may be convicted of reckless or negligent homicide
• 2. immediately nec to protect himself (deadly force OK)
• 3. not initial aggressor
• 4. retreat unless at home or work

• majority - no
• minority - yes but castle exception

• majority - may use force to protect someone if that person would be justified in using it to protect himself
• - if D subjectively believes victim would be justified then excused
• - mistake is OK

• minority - D "steps into the shoes" of the person and if he had no right to defend himself then D had no right to defend him
• - mistake no excuse

deadly force not permitted

exceptions - home, prevention of felony

• 1. harm avoided > harm committed
• 2. no alternative
• 3. harm imminent
• 4. not D fault

concedes that the act in the abstract is wrong but D was right and justified in what he did

concedes that violation is unjustified but maintains that the act is right; seeking to exempt this particular D from responsibility

• - D threatened with harm to himself or another and threat compelled commission of crime
• - reasonable belief that had to commit crime to avoid harm

• 1. charged with M or m
• 2. threats against property alone
• 3. D created situation

• 1. M'Naghten
• 2. Irresistible Impulse
• 3. MPC Substantial Capacity

• 1. D suffered mental disease causing a defect; AND
• 2. either D didn't understand the nature/quality of his act; OR
• 3. D didn't know that his act was wrong

majority and NC view

• 1. D suffered mental disease causing defect; AND
• 2. either D didn't understand nature/quality of his act; OR
• 3. D didn't know act was wrong; AND
• 4. b/c of mental illness, D was unable to control his actions or to conform his conduct to the law (knew it was wrong but couldn't stop/help himself)

• 1. D suffers from mental disease/defect and as a result lacked substantial capacity to either:
• (a) appreciate the criminality of his conduct; OR
• (b) conform his conduct to the requirements of the law

• - have some issues but not full blown insane
• - culpability may be lowered b/c D lacked required mental state
• - limited to specific intent crimes (majority and NC)

person is an accomplice to a crime if hte person intentionally assists another person in commission of crime

• - not separate crime...not crime of aiding and abetting
• - will be convicted of the same crime the primary offender is charged with

conviction of primary offender not required

silence isn't enough...requires action

claim of ignorance/mistake regarding factual matter relevant to the crime

mental state

beyond reasonable doubt

yes if it negates the mens rea required to establish a material element of the offense

no for SL offenses

CL - yes for general intent crimes

MPC - no

• specific intent - not guilty if the mistake negates the specific mens rea even if the mistake is unreasonable:
• - the definition of crime expressly includes an intent/purpose to do some future act, or to achieve some further consequence beyond the conduct that constitutes actus reus; OR
• - crime that provides that the actor be aware of a stautory attendant circumstance

general intent - not guilty if the mistake is a reasonable one with 2 exceptions: (1) MWD; (2) LWD

person can make a reasonable mistake regarding attendant circumstance and yet be culpable

view situation from the actor's reasonable belief and if still morally wrong then actor's mens rea is not negated

person can make reasonable mistake of fact and yet still be guilty of a different crime if the situation were as he believed

typically less serious offense than one charged for

applies to all offenses in the same manner with no distinction b/t general and specific intent

general rule - not guilty if mistake negates mens rea EXCEPT still guilty of lesser included offense if MPC's version of LWD applies

will drop the charge/penalty down a notch due to the offender's ignorance (LWD)

were unaware/ignorant of the law for which they are accused of violating

there is no element of mens rea that is capable of being negated by D's mistake or ignorance of the law (SL)

• NO unless:
• (1) statute/code expressly makes such knowledge an element of the crime;
• (2) reliance on official interpretation (not always sufficient and must come from someone involved in making/shaping the law)
• (3) collateral fact

legislature must publish or at least make statute's existence known to public b4 individuals can be charged/convicted of its violation

DP requires notice!!!!

• 1. solicitation
• 2. conspiracy
• 3. attempt
• 4. 1st degree murder
• 5. larceny
• 6. embezzlement
• 7. false pretenses
• 8. robbery
• 9. burglary
• 10. forgery

• 1. murder
• 2. arson

virtually everything else (i.e. - rape, battery)

crimes with no mens rea requirement (i.e - public welfare offenses)