Return to Syllabus Spring 2025
Revised: 12 January 2025
To use this web page, use you Control F feature on your browser to type in the subject you wish to review. E.g. type in "forgery" to go to web page entry on forgery.
You should use the format below as demonstrated in the Palmer case, below, to brief all the cases which we undertake for this course.
The Brief of the Case, Palmer follows below:
Palmer v. City of Euclid, Ohio
Supreme Court of the United States (1971)
402 U.S. 544
FACTS: Appellant Palmer had been convicted of violating the City's suspicious person ordinance. Palmer had dropped a lady near an apartment, parked in front of the building, and used a 2-way radio. He gave several addresses to police, and did not know the lady's name. For this he was convicted of violating the ordinance. Palmer appeals.
ISSUE: Did the statute as worded violate the Fourteenth Amendment's Due Process Clause of the United States Constitution by being uncertain and lacking in ascertainable standards of guilt?
HELD: Yes
RATIONALE:
1. The elements of the crime as defined by the ordinance consisted of being abroad on the streets or out at late hours, without appearing to have any visible lawful business, and failing to give a satisfactory explanation for his presence.
2. As far as the record revealed, the Court could not see that any of Palmer's activities were illegal.
3. It would be quite unreasonable to believe that Palmer could have understood that his conduct was criminal.
4. The General Rule which is consistent with the Due Process Clause of the Fourteenth Amendment is that no person should be held criminally responsible for conduct which "he could not reasonably understand to be proscribed."
5. Therefore, Palmer's conviction was reversed by the Supreme Court due to the unconstitutionality of the ordinance.
The Supreme Court Reversed the Conviction.
CRIMINAL LAW : Homicide
UNIVERSITY OF DAYTON
I. Corpus Delicti of Criminal Homicide - two elements
A. The killing of a human being. (death as a result.)
B. Caused by the criminal act of another. (i.e. the death was not an accident and was not a suicide.)
The prosecution must also establish that the defendant was the one who did the killing, but this is NOT a part of the corpus delicti of homicide and the defendant's confession cannot be used to establish the corpus delicti.
II. Murder - the unlawful, unjustified and unexcused intentional killing of one human being by another human being with malice aforethought.
Another definition: "Murder, as defined by the common law, consists of the unlawful killing of a human being with malice aforethought, express or implied." Commonwealth v. Harman, 4 Pa.269, 271.
A. Malice Aforethought is a term used to describe a "human endangering state of mind."
Malice aforethought includes:
1. a pure intent to kill.
2. an intent to inflict serious bodily injury.
3. an intent to commit an inherently dangerous felony listed as such by the state's statute. Examples typically included are burglary, rape, arson, robbery, and kidnaping.
4. an intent to resist a lawful arrest with force.
5. an intent to do an act which creates a highly or outrageous risk of death or serious bodily injury.
Malice aforethought, other ways of describing the concept: Malice is a legal term which comprehends not only a particular ill will, but every case where there is a wickedness of disposition, hardness of heart, cruelty, recklessness of consequences, or a mind regardless of social duty. Commonwealth v. Drum, 58 Pa. 9, 15.
B. First degree murder - the unlawful, unjustified and unexcused willful, deliberate, and premeditated and intentional killing of one human being by another human being with malice aforethought.
1. Premeditation - refers to a period of time (it may be very short) during which the defendant reflected on the proposed murder scheme, weighed the merits of the plan, the reasons for and against doing the act, and ultimately decided to commit the killing. It may include killings committed by poison, torture or lying in wait. The theory of the felony-murder rule may aid in finding or supplying premeditation.
C. Second degree murder - all killings with malice aforethought other than those killings classified as first degree murder. [Some states use different terminology for murder to differentiate the degrees. Ohio calls first degree murder, Aggravated Murder, and refers to second degree murder as Murder.]
D. Felony- Murder Rule -(first degree murder) any unlawful killing which was caused by the defendant's act in the perpetration or attempted perpetration of some other felony which is considered inherently dangerous to human life or a felony committed in a manner which is inherently dangerous to human life. Inherently dangerous felonies are listed under II. A. 3. above.
E. Accomplice Rule -[Under the Felony-Murder Rule] where more than one person is engaged in the commission of an inherently dangerous felony, each felon is criminally liable for the acts of the other or others. Example: a killing of another person by one of the co-felons makes all of the felons equally guilty of first-degree murder, even though only one felon did the killing.
III. Manslaughter - The unlawful, unjustified and unexcused killing of one human being by another human being, without malice aforethought. It may be voluntary or involuntary.
A. Voluntary manslaughter - an intentional killing of one human being by another done in a sudden heat of passion caused by a reasonable provocation and with an absence of malice aforethought.
1. An intent to kill is present - normally this would constitute malice aforethought. Here, because of the recognition of human nature and loss of reason under extreme stress, it is not called malice.
2. Reasonable provocation - (words alone may be enough, but the general rule is that words alone will not reduce what would have been murder to voluntary manslaughter) is based upon a reasonable human standard. (i.e. would the provocation have caused an average human to lose self- control and act rashly without reflection to the point of taking life?)
3. ALSO, it must appear not only that a reasonable person would have lost control under the circumstances, but that the defendant did in fact, lose control and become enraged. FURTHER, the defendant must not have actually "cooled down" and the average person would not have "cooled down" or the act would be called murder.
B. Involuntary Manslaughter - is an unintentional killing done without excuse or justification and without malice aforethought.
1. Includes intentional acts resulting in an unintentional death during the commission of an unlawful act which is inherently dangerous (male in se) to humans.
2. or an unintentional death as the result of criminal negligence while doing a lawful act in an extremely careless or outrageously negligent manner where the danger to human life should be apparent to the defendant.
3. Criminal negligence is more than ordinary negligence. On manner to determine whether an act or omission is criminally negligent is to weigh the social utility of the act against the risk of harm if it occurs. We permit bridges to be built even though we are aware that sometime humans are killed in the process. But, we might not want a person making fireworks in the basement of a day care center. Both fireworks and bridges are useful, but the risks\benefits of doing the above acts are quite different.
Your understanding of homicide could be helped by consulting the outline on homicide in the Gilbert Law Summary
CRIMINAL LAW : Assault and Battery
ASSAULT AND BATTERY- these two separate common law crimes are frequently mentioned together with little distinction made between the two offenses. However, they are two separate offenses and must be treated as such. Essentially, the common law assault may be thought of as an attempt to commit a battery, while the battery is the completed crime.
BATTERY
Any unconsented, unlawful touching of another human however slight the injury, may constitute a criminal battery.
a: offensive touching is the key.
b: touching need not cause physical injury to victim.
Touching - may be of the victim's body, car, clothing, or even a dinner plate held in the victim's hand.
Virtually any completed battery includes an assault; but one may not be convicted both assault and battery for the same criminal act.
Merger doctrine- in a completed battery, the assault which preceded it is merged the completed crime of battery. Battery is the surviving crime for which a conviction may be obtained. If a jury could not be positive that touching actually occurred, it could return a verdict of common law assault.
MENS REA REQUIREMENT - the only sufficient mental element which must be shown is that the act was volitionally done.
ASSAULT
Two types -
A. attempting to commit a battery.
B. placing the victim in apprehension of an immediate battery.
A. (Attempted battery) assault
The defendant must have definitely intended to commit a particular bats. and that the defendant had undertaken a substantial act towards the completion of the battery.
* the proposed victim need not even be aware of the defendant's actions even of his or her presence.
* some jurisdictions require that it have had actual present capability have committed an actual battery. (OPTIONAL) The actual present ability does not apply to the crime of attempted rape.
B. Assault based on apprehension of immediate battery.
Defendant must have definitely intended to commit a battery on his victim OR place the victim in apprehension of an immediate battery.
That the defendant actually created a reasonable apprehension of an immediate battery in his victim by some affirmative gesture or act, will be sufficient for this type of common law assault. Knowledge of the acts of the defendant by the victim is essential. If words negate a threat of immediate battery - there is no assault of this type. However, words, (I'll hit you tomorrow.), accompanied by a physical threat in the present, will constitute an assault where apparent ability appears sufficient and the physical acts override the words and negate their meaning..
BURGLARY
Elements of this crime:
THE TRESPASSORY [or felonious] BREAKING AND ENTERING OF THE DWELLING HOUSE OF ANOTHER IN THE NIGHTTIME WITH INTENT TO COMMIT A FELONY.
1. The element of TRESPASSORY - A trespass for the purposes of burglary includes any wrongful entry of a dwelling by any person who has no legal right to be or go inside the structure. Persons who have been given permission to enter are not legally capable of committing this crime because they cannot enter the premises illegally. Permission may have been expressly given or it may have been given by implication or practice.
2. The element of BREAKING - A breaking is any movement of they dwelling or any part of it necessary to making a way of entry. any force, however slight, which is applied to the structure will be sufficient to constitute this element. The force may be applied by the defendant directly or the defendant may use an instrument or tool to accomplish the breaking. Constructive breaking exists wherever the defendant has used artifice, fraud, the threat of the use of force against the occupants, actual use of force, the use of bribery of a house servant, posed as a salesman, or in any way facilitated his/her entry by other than the use of actual force applied to the dwelling house.
3. The element of ENTRY - An entry is effected whenever the defendant or any part of the defendant's body intrudes into the interior of the dwelling house. Where the defendant uses a tool to intrude into the interior of the dwelling house, this element has been met. a word of caution - just because the tool used to break intrudes into the interior does not mean there has been an entry. Once the breaking has been completed, a second intrusion for the purpose of committing a felony will constitute the entry.
4. The element of DWELLING HOUSE - A dwelling house for the purposes of common law burglary must be a place of regular human habitation as a general rule. A house in which no one has yet moved is not a dwelling house for the purposes of burglary. Similarly, a home from which the most recent occupants have moved is not a dwelling house. the term, dwelling house, at common law included the actual house and the out buildings that were used in connection with the house itself; it included small structures which might have been included within the area which might have fenced around the house. Out buildings which are across a public highway are not included in the definition of dwelling house.
5. The element OF ANOTHER - This element by its nature implies that the dwelling house must belong to a person other than the defendant. This may be somewhat misleading however. To qualify as being "of another" the right to occupy the house is the key to this element. A renter has the right to occupy the house to the exclusion of the owner of the structure, so the owner of a dwelling house who commits all the elements of this crime, commits burglary if the owner enters the structure without the permission of the tenant. A person who has been given permission to enter the home at any time cannot be guilty of this crime since it is in a sense their home as well.
6. The element of IN THE NIGHTTIME - this element has been met at common law where the activities necessary for this crime occur when the natural light is not sufficient to tell the details of one's facial features. Most commonly, the modern statutes set this element as existing from one half hour after sunset until one half hour before sunrise.
7. The element of WITH INTENT TO COMMIT A FELONY - This element most frequently will have to be determined form the facts of the case, including the statements of the defendant. This is the mens rea (mental state) which is necessary to the crime. The defendant need not ever actually commit the felony which was the original goal of the endeavor; just have intended to have committed any felony at the time of the breaking and entry. If the facts indicate that the defendant did not intend to commit any felony at the time of entry, then the defendant has not committed this particular common law crime. Where the defendant intended to commit a felony, but never actually committed it, the defendant is still guilty regardless of the reason why it was not completed. Commonly, it is thought that the defendant must have intended to have stolen something. This is not correct! Commonly, the crime intended involved the theft of some object, but the mental element here only requires that the defendant have intended to commit a felony. NOTE: Many modern statutes include the intent to commit any theft offense in their definition of burglary [even where the theft offense constitutes only a misdemeanor], but this was not the case in the definition of common law burglary. At common law, the crime of larceny constituted a capital felony, where modern law judges theft offense severity by the value of the object taken. Essentially, modern statutes frequently make a theft offense a felony only where the value of the property is in excess of a stated amount.
LARCENY
LARCENY DEFINED: LARCENY IS THE TRESPASSORY (WRONGFUL or FELONIOUS) TAKING AND CARRYING AWAY OF THE PERSONAL PROPERTY OF ANOTHER WITH THE INTENT TO PERMANENTLY DEPRIVE ANOTHER PERSON OF POSSESSION OF THE PERSONAL PROPERTY.
1. TRESPASSORY (Trespass = Wrongful = Felonious) The trespass involved here means that the defendant had no legal right to deal with the property in any form or fashion. The defendant, in other words, should not have become involved with the personal property in the manner in which the defendant did.
2. TAKING is the assertion of dominion and control over the property. It implies that the defendant, either by actual physical control or by gaining that control through an unwitting partner, placed him/herself in a position to determine what was to be physically done with the property.
3. CARRYING AWAY is the actual movement of the personal property some distance, however slight. This element may, in some cases, require that the property be moved more than just slightly, but generally only a small movement is all that is required.
4. PERSONAL PROPERTY is property which is not considered to be real property. Real property is that property which is attached to land or is property attached to property attached to land. (buildings, outhouses, trees, fences, and the like). Most other property is considered to be personal property. (purses, automobiles, bicycles, wallets, blenders, and like property).
5. OF ANOTHER implies that the right to possession is not in the defendant, but rests in some other person other than the defendant. In the law of larceny, the key to the crime is this concept of possession, not ownership. If the defendant does not own the property, but has the right to possess it, the defendant cannot be guilty of larceny of that property. It is quite possible for one thief to commit larceny by taking property from another thief even though the other thief did not have the right to possess the property at all. The main point here is that the second thief had absolutely no legal right to possession of the personal property.
6. WITH INTENT TO PERMANENTLY DEPRIVE. This element is the mental element necessary to prove guilt. It is evidenced by conduct on the part of the defendant which shows that the defendant did not ever intend that the rightful possessor should recover possession of the property or by conduct which would make recovery unlikely, difficult, or impossible where the defendant did not intend that the rightful possessor ever recover the property. (Intentional destruction is a good example of an intent to permanently deprive.
CRIMINAL LAW: EMBEZZLEMENT HANDOUT
The crime of embezzlement was devised to "fill the gap" in criminal prosecutions which existed when a person who was in legal possession of the goods owned by another appropriated those goods to his or her own use.
The crime defined: EMBEZZLEMENT IS THE WRONGFUL OR FRAUDULENT CONVERSION OF THE PERSONAL PROPERTY OWNED BY ANOTHER BY A DEFENDANT WHO WAS IN LAWFUL POSSESSION OF THE PROPERTY. There is an intention by the defendant that the rightful owner will never recover the property.
A. The term, CONVERSION, implies that the property was taken for the purpose of the defendant, not that the defendant must personally gain some benefit from it. The defendant may actually give the property to another person and not receive any money or other benefit from the transaction other than personal satisfaction. If the defendant destroyed the property, this would qualify as a conversion.
B. Generally, property which may be the subject of embezzlement will usually be PERSONAL PROPERTY and not real property. However, some jurisdictions will allow real property to qualify as the subject of embezzlement even if the property is not personal property.
C. In order for the crime of embezzlement to be possible, the defendant must have had POSSESSION IN THE LAWFUL SENSE. If legal possession did not exist in the defendant, he or she cannot be guilty of this crime. If the defendant did not have lawful possession, the defendant is probably guilty of larceny.
D. The defendant must not have intended to return the property and must have intended that the OWNER not ever receive the return of the property.
CONSULT YOUR Gilbert's STUDY AID FOR MORE INFORMATION.
OTHER PERSONAL PROPERTY ACQUIRING OFFENSES
1. Elements of Obtaining Property by False Pretenses
A. The defendant must have made a false misrepresentation of material (important) fact, either past or present.
B. Which has caused the victim to intend to pass both title as well as possession to the defendant.
C. The defendant must have known that the misrepresentation was false when make and the victim must have been ACTUALLY deceived.
2. Elements of Larceny by Trick
A. The elements of this crime are the same as the usual larceny crime except that the defendant gains his/her wrongful possession by using a lie, fraud, or deceit to convince the victim to give up the personal property. In other words, the victim is usually face to face with the defendant rather than the defendant gaining the wrongful possession by stealth.
3. Receiving and/or Concealing Stolen Property
A. The defendant must have gained dominion and control over the property which was stolen by someone else.
B. The property must have actually been stolen. (property which is not in fact stolen will not qualify)
C. The defendant must have actually known that the goods were stolen or in some jurisdictions must be "charged with knowledge" even though the defendant did not actually know that the goods were stolen. This covers the case where the defendant closes his/her mind to the real facts.
D. The defendant must have had the intent to permanently deprive the rightful possessor of possession.
4. Forgery
A. Forgery is the wrongful making of a false or untrue writing which possesses apparent legal significance, with the defendant possessing the specific intent to defraud someone. CAUTION: It matters not if anyone was actually defrauded, only that the defendant had the specific intent to do so.
5. Uttering a forged instrument
A. The defendant must attempt to pass the instrument to someone else while possessing knowledge that the instrument is a forged instrument, with the specific intent that someone be defrauded by its use. The defendant may have forged the instrument personally or just have knowledge that the instrument is a forgery done by someone else.
ATTEMPTS AT CRIME CAN BE CONSIDERED SEPARATE CRIMES.
ATTEMPT AT CRIME: This type of act is itself punishable as a criminal offense due to the dangerousness of the type of activity, due to the closeness to success in completing the substantive offense, and the antisocial nature of this type activity.
TO BE GUILTY OF THIS OFFENSE:
1. The defendant must have gone beyond mere preparation and have begun the perpetration of the substantive offense.
2. The defendant must possess the necessary state of mind for the particular substantive offense. (a specific intent to commit a particular offense.)
3. Generally, the crime must have been one that the defendant possessed the ability to have committed. [An exception to the ability to commit the crime requirement is the crime of attempted rape. An impotent male, at common law, may be convicted of attempted rape even if he were not capable of committing the act which constituted the completed crime of rape.] The act of the defendant must have been reasonably adequate to successfully commit the crime.
4. It must have been a crime that the defendant could have legally committed. In other words, if the defendant lacked criminal capacity due to being too young, or was not mentally not responsible for his/her acts, or was trying to commit a crime that one sex cannot legally commit, the defendant will not be guilty of an attempt at that particular crime.
GENERAL COMMENTS ABOUT THE CRIME OF ATTEMPT
A defendant has committed an attempt at a crime when he/she does any act which is a very substantial step toward the commission of the substantive crime while possessing the specific intent to commit that crime. This substantial step must be more than mere preparation and actually extend to the beginning of perpetration of the crime. However, the defendant need not be to the point where the next act would make the substantive [the intended] crime complete, before criminal liability for the attempt has been incurred.
CRIMINAL LAW: IMPOSSIBILITY DEFENSES
UNIVERSITY OF DAYTON
LEGAL IMPOSSIBILITY - Exists where the actions which the defendant has performed or started in motion, if all carried out to the fullest extent desired by the defendant, would constitute any criminal act. Where a legal impossibility exists the defendant, generally, cannot be guilty of an attempt to commit the crime that it appeared that the defendant desired to commit. Additionally, the defendant cannot be found guilty of the substantive offense which was his/her original goal.
example: The defendant saw a baseball glove on the baseball field. He picked it up, determined to take it home and keep it forever, or as long as it lasted. well, wouldn't you know it, the glove turned out to belong to the defendant; it was the one that the defendant had lot at the ball park last year. The defendant could not be guilty of an attempt to commit larceny of the glove since the glove belonged to him. He could not be guilty of the attempt since even had he done all he desired, he could not be guilty of larceny due to the fact that the glove belonged in his possession from the beginning.
FACTUAL IMPOSSIBILITY - Exists where the defendant has done an act which generally would have been a criminal act if everything which the defendant had desired had taken place. The fact that conditions or other facts existed that rendered the actual consummation of the offense impossible, will not relieve the defendant of criminal responsibility for the attempt.
example: Defendant wanted to kill her worst enemy. She armed herself with a nice compound bow and made some poison tipped arrows. She shot one of those arrows through the window where she could see the victim sitting reading a newspaper. She missed her victim because the reading light being used by the intended victim caused the victim's shadow to make it appear that he was in a slightly different position than was really the case. The defendant would be guilty of attempted murder since it was only a factual impossibility that she did not kill him. the same result would follow if she shot the arrow at a place where she knew that he slept each night, but he had gone to sleep at another location in the house.
CRIMINAL LAW: CONSEQUENCES OF FAILURE TO MEET LEGAL DUTIES
OMISSION OF DUTY WHERE A LEGAL DUTY EXISTS: a failure to perform an act as required by law under the circumstances.
OMISSION TO DUTY- May create legal liability on the part of the defendant where the defendant was under a legal duty toward the victim, mere moral duties are not sufficient to create this responsibility. It must also be shown that the defendant was in a situation in which it was possible for the defendant to have acted to ease or eliminate the peril.
LEGAL DUTY- A legal duty may be created in a number of ways. it may be based upon relationship (either blood or marriage), contract, statute, voluntary assumption of care, or by the creation of the peril. The defendant is excused from performance of the duty if the defendant was unaware of the need for its exercise.
RELATIONSHIP - A parent has a duty to protect his/her children from perils by they disease or other external threats to their safety or well-being. The parent does not have to do an act which would be foolish or extremely risky to health or safety. A spouse has a duty of good care toward the other spouse which may require the spouse to summon medical aid or otherwise rescue the other from harm where it would not be foolish so to do. Relationships which are based on blood do not normally extend beyond the immediate family.
CONTRACT - A person who has obligated himself/herself to care of look after another must follow through with the duty of care so assumed. A lifeguard must exercise due care of the people for whom the lifeguard has assumed protection. A baby sitter must exercise due care for his/her charges.
STATUTE - The various laws which have been passed often require that the citizen affirmatively do certain acts. One of these acts is to file an income tax return if a certain level of income was had during the previous tax year or suffer the penalty. Similarly, statutes require that parents provide for the care and safety of their offspring.
VOLUNTARY ASSUMPTION OF CARE - A person may owe a duty of due care to one where they have started to aid a person in need. where the rescuer starts out to aid a drowning victim, the rescue must be continued unless a good excuse is present, By initiating the rescue, another person may have refrained from starting another attempt at rescue. An elderly person may have a duty of care to another person where they lived together and one gets sick if no other person is around to become aware of the problem.
CREATION OF THE PERIL - A duty exists where the defendant has caused the danger which currently causes the threat to life or safety. This duty is owed by a property owner who has dug a ditch across his/her property and not properly placed warnings if a person falls into the ditch and has injured himself/herself. The motorist who has been negligent in driving and injured another person has a duty to render aid. Many times this is another example of a duty created by statute.
EXERCISE OF THE DUTY- Is required only where the person who had the duty toward another is aware or should be aware of the danger of peril AND the person with the duty is able to render aid without unreasonable danger to himself/herself. If the delivery of aid is not reasonable under the circumstances, the exercise of the duty is excused.
CAUTION - MERE moral DUTIES ARE NOT SUFFICIENT UNDER AMERICAN LAW TO CREATE LEGAL DUTIES, as a general rule.
THEORY: PARTIES TO CRIME
In this area of criminal law, persons may be responsible for crime when the individual may have not physically engaged in committing the crime.
Principal in the First Degree: This individual is the person physically commits the crime to the extent that physical involvement is required. This individual typically shoots a gun, stabs the victim, breaks into the victim's home, commits a robbery, or other active participation of the physical nature. This particular person is the one that this course is always recognized as the one who personally does the crime this individual has full criminal responsibility for his/her actions.
Principal in the Second Degree: This individual does not actually commit the crime, but is physically or constructively present at the scene of the crime, and is ready, willing, and able to assist the principle that first-degree should such assistance be necessary or desirable from the original criminal's perspective. A person who qualifies as a principal in the 2nd degree has equal criminal guilt with the principal in the 1st degree. So if the criminal first-degree would be guilty of burglary, the principal second-degree would be guilty of the same burglary even though the principal second-degree did nothing other than be ready willing and able to help the principal on the first-degree.
Accessory before the Fact: This individual has aided and assisted the principal in first degree or the principal in the second degree in planning or carrying out a particular crime. This individual may have suggested how to commit the crime, when would be the best time to commit the crime, or otherwise rendered some sort of aid and assistance to enable the first two principles to accomplish their criminal goal. This individual was not physically present at the crime scene, either actually or constructively. The best example of this would be an organized crime leader or boss who suggests to underlings how to commit or when to commit particular crimes. The person who fits the category of being an assessment before the fact is equal criminal guilt with this principal in the first degree principle or/and the principal in the second degree.
Accessory after the Fact: This individual has not participated in the planning or execution of the criminal plan and has had no involvement with anyone in the crime until after it has been completed. This individual, who must have developed or has acquired knowledge of the crime that has occurred, and with that knowledge, renders aid and assistance to one of the first three individuals ]Principal in the First Degree, Principal in the Second Degree or the Accessory before the Fact] with a view to aiding those persons to escape apprehension, detection, or punishment for the crime or crimes that have been committed. In essence, The person who fits the category of accessory after the Accessory after the Fact is primarily obstructing justice and for that reason this activity carries with it criminal responsibility. This responsibility is generally considered somewhat less culpable than the primary felons who actually committed the crime or have suggested how and when to do the crime.
CONSPIRACY AND ALLIED THEORIES OF CRIMINAL LIABILITY
A criminal conspiracy is an agreement between at least two or more persons that they are to commit a crime when both actors have a specific intent that the other crime will be committed.
The agreement itself
constitutes the crime. However, at least one conspirator must make an “overt
act” in furtherance of attaining the goal[s] of the conspiracy, which is itself
a separate crime. All conspirators are equally guilty of the crime of conspiracy
and will be equally guilty of the intended crime if it is committed, even if
only one conspirator commits the goal or intended crime on behalf of the other
conspirators.
The Merger Doctrine has no application in conspiracy law. The
crime of conspiracy and the intended or goal crime are not merged into one crime
when the intended crime[s] is/are committed.
To withdraw from a conspiracy:
Two ways to accomplish the withdrawal. One: the withdrawing member generally
must inform ALL other members of the conspiracy that he or she is ending
involvement and wants no further involvement in the conspiracy. As a strong
general rule, this withdrawal requires ACTUAL NOTICE to all members of the
conspiracy early enough so that the remaining conspirators may decide whether to
continue their criminal plan. The other method is to inform law enforcement
officials of the planned conspiracy and of its goals sufficiently early enough
so the police have an opportunity to thwart or prevent the intended crime[s]
from being committed. One drawback, the withdrawing member must confess to
police to being involved in the crime of conspiracy.
Withdrawal does not
remove criminal guilt for the crime of conspiracy when one member properly
withdraws.
What is Wharton's Rule as it relates to the Crime of
Conspiracy?
This is a rule of substantive law that prohibits the prosecution
of two persons for conspiracy to commit a particular offense when the offense
takes at least two persons to commit in the first place.
Example: Drag Racing on a public street takes two drivers and two vehicles to commit the crime. For a charge of conspiracy to commit drag racing, three people must be involved, at a minimum. Similarly, when adultery was a criminal offense [still is in the Uniform Code of Military Justice], it took two persons to commit the crime, so a charge of conspiracy to commit adultery would take a minimum of three persons to constitute a conspiracy to commit adultery. Another crime, dueling, requires two persons to commit, so three are required for a conspiracy to commit dueling. Dueling with oneself is called suicide!
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PROBLEMS AND CONCEPTS RELATED TO CAUSATION:
PROXIMATE CAUSE REFERS TO THE CONCEPT THAT A DEFENDANT'S ACTIONS AND THE CRIMINAL RESULTS ARE CLOSELY OR SUFFICIENTLY RELATED TO CREATE CRIMINAL LIABILITY.
PROXIMATE CAUSE - one method of analysis
1. Start by looking to see if the CAUSE IN FACT (the but for test) test has been met. If so, the look further.
2. Then, decide if the defendant's act was a SUBSTANTIAL FACTOR in causing the injuries of the victim. If so, then look further.
3. Look at the other causes, if any, which may be present. If there is another cause which may be classified as a SUBSTANTIAL FACTOR in causing the injury, the defendant may still be criminally liable, even though someone else may also be liable (criminally). If there is another cause which may be classified as an INTERVENING CAUSE, (and which is not a substantial factor in causing the injury) such intervening cause is said to exist along with the substantial factor, but does not operate as a superseding cause of the injury. Such intervening cause will not remove criminal liability from the defendant.
4. If you find that the defendant's act was the cause in fact of the injury and that the defendant's act was also a substantial factor in causing the injury, generally you may find that criminal liability exists in the defendant. You would then say that PROXIMATE CAUSE exists.
5. If you find that the defendant's act was a cause in fact of the injuries, but was not the substantial factor in the cause of the injuries, the defendant should not be held criminally responsible. In this case you would say that PROXIMATE CAUSE did not exist.
THIS IS INTENDED AS A METHOD OF ANALYSIS ONLY. YOU WILL HAVE TO SUPPORT ANY CONCLUSIONS WITH FACTS WHICH SUPPORT THAT CONCLUSION(S).
Strict Liability Offenses
Strict liability offenses do not require as part of their proof, any element of mens rea. The only elements which must be proven by the prosecutor are the facts which demonstrate that the defendant did the acts or omissions which constitute the crime. The defendant need not have intended that a prohibited result occur; only that the defendant intended to do the acts which constitute the prohibited crime. The typical example of a strict liability offense which is commonly encountered is the offense of selling liquor to someone under the legal age in that jurisdiction. Absolutely no mens rea is required for proof of guilt of this offense. A second example: If one were speeding in an automobile, but were honestly unaware of the fact, one would still b e guilty of speeding.
EXAMPLE
One day a man hired another man to pick up a load of rocks. The driver had the rock load weighed with the result that the weigh slip indicated that the truck (loaded) weighed within the legal limits. The next day, the owner of the freight company, drove the truck to deliver the load of rocks. The night before, a man had driven past the truck and tossed several bags of garbage in the truck containing the load of rocks. The trip to town passed a permanent weigh station operated by the state police. After the truck had been weighed, the police issued a ticket since the truck was overweight.
The ticket resulted in a fine in the local court which survived an appeal by the driver of the truck. The facts made no difference in the guilt of the driver since this type of crime needs no proof of any mens rea. The government had only to prove that the truck had been operated by the defendant and was over the legal limit while on the highway.
Most strict liability offenses are punishable only by small to moderate fines and normally do not carry large criminal penalties. However, two examples exist which are contrary to the usual rule: bigamy and statutory rape. Traditionally, these crimes have been thought to deserve substantial prison time. Many modern statutes contain a mens rea requirement for the crime of bigamy with the result that bigamy is not a strict liability offense in those states.
MOTIVE AND INTENT: DIFFERENT CONCEPTS
Intent: Intent is the mental design to use a particular means in order to produce the desired result. Intent may also be described as a mental determination to conduct or act in a particular manner.
Motive: Motive is the reason or purpose which impels a person to action with the goal of producing the desired result.
It is often said that proof of a motive (either good or evil) is not necessary to prove guilt of any crime in any criminal case. Proof of an evil motive may assist in producing an inference that a defendant had formed the necessary mens rea. [Under some modern laws relative to hate crimes, a racial or ethnic motive may be required for proof of guilt.] The mens rea may include the following types: general mens rea, specific mens rea, knowledge, willfulness, or any other particular mens rea.
Example of Motive and Intent
Defendant broke in a dwelling house of another person in order to obtain food and money to feed her hungry children. While her motive was the desire to feed children, her intent was to commit a felony and to permanently deprive the possessor of the food and money.
Proof of a good motive will not operate as a good defense to a crime, as a general rule.
Example:
Fred's mother, Isabella Devilla, has been suffering from a painful, but terminal disease. At her request and with her consent, Fred gave her a fatal potion which had the effect of killing her quickly, but painlessly. His good motive was to prevent further suffering of his mother; his intent was to take her life (kill her). The appropriate motive of preventing further suffering will not operate as a defense to killing her since his intent was to take life.
CRIMINAL LAW: MENTAL STATUS MAY BE A DEFENSE TO CRIME.
INSANITY
I. Insanity may relieve a defendant from criminal responsibility for his/her act.
General Definition - It has been said that a person is not criminally responsible for his actions in cases where his mind was so defective at the time of his act that he is deemed to have been legally insane.
A. Legal insanity is not the same concept as a medical finding of mental disability. A person may be medically diseased according to some medical definition but still be held criminally responsible.
B. Legal insanity differs depending upon the purpose for which it is used. Making a will, a contract, or testifying in a court to a jury.
We will look only at legal insanity in the area of the criminal law when used as a DEFENSE.
C. The issue of insanity of a defendant may or will be important at five different times.
1. At the time that the crime was committed.
2. At the time of arraignment or at the preliminary hearing.
3. At the time that the defendant is to be tried.
4. At the time of the judgment (Allocution.)
5. At the time of the execution of the sentence. SEE: Atkins v. Virginia, ___ U.S. ___ (2002), No. 00-8452, where the Supreme Court held that the execution of a sentence of death on a mentally retarded capital convict violated the Eighth Amendment's prohibition against cruel and unusual punishments. The Eighth Amendment is applied to the States through the Due Process Clause of the Fourteenth Amendment.
For our purposes we will be interested in the concept of insanity primarily at the time that the crime was committed.
D. Tests for determining legal insanity - we will look at basically three tests.
1. M'NAGHTEN TEST (right-wrong)
Irresistible Impulse Test - a supplement or modern modification to the M'Naghten Test.
2. DURHAM or PRODUCT TEST
3. AMERICAN LAW INSTITUTE - A.L.I./Model Penal Code Insanity Test
II. M'Naghten Test (Probably the majority rule in the States of the United States) - to be excused from criminal responsibility it must be shown:
A. (DISABILITY) that the accused has suffered from a defect of reason, from a disease of the mind and B. (RESULT) that consequently at the time of the act he did not know: A. the nature and quality of the act or
B. that the act was wrong.
M'Naghten Test restated: a person will be excused from criminal responsibility if, at the time of committing the act, he was laboring under such a defect of reason, from disease of the mind as to not know the nature and quality of his act he was doing, or that if he did know it, that he did not know that what he was doing was wrong.
III. Irresistible Impulse Test - sometimes incorporated into the M'Naghten test - which in reality means that even if the M'Naghten rule is not strictly met, that he/she will escape responsibility if he had a mental disease or defect which kept the defendant from controlling his conduct.
IV. Durham or Product Test -not currently used in any jurisdiction.
A. Durham Test - an accused may not be criminally liable by reason of insanity where the criminal act was the result or product of mental disease. In other words, but for the disease, the defendant would not have committed the act.
B. Mental Disease - any abnormal condition of the mind which substantially impairs the mental or emotional processes and substantially impairs behavioral controls of the defendant.
V. A.L.I./ Model Penal Code - whether as a result of mental disease or defect the defendant lacked the substantial capacity to understand the wrongfulness of his act or to conform his conduct to the requirements of the criminal law.
VI. Mental Disorders not qualifying as legal insanity may show that the defendant did not have the required mens rea for the given crime. In such a situation, the level of the crime may be reduced or the crime eliminated because of the lack of mens rea.
CRIMINAL LAW: Another Potential Complete Defense
Mistake of Fact
Mistake of fact may operate as a defense where it operates so as to eliminate a mental element essential to the crime allegedly committed. It is called an affirmative defense because the defendant is responsible for presenting it to the court or jury.
What must be shown in order for this doctrine to operate as a defense:
1. the mistaken belief of fact must have been honestly entertained. [This is a subjective standard, personal to the defendant.]
2. the mistaken belief of fact must have been based on reasonable grounds. [This is an objective standard in which the question concern the belief which the average person would have developed.]
3. the defendant's act must have been such that it would not have been a crime if the facts had been as the defendant actually believed.
Mistake of fact will not normally operate as a defense to a strict liability offense because no mental state is required for this type of "crime."
In answering a question of this type, you need to be sure to explain why the belief, in your opinion, was one that could have been based upon reasonable belief and specifically why you think that the particular defendant reasonably did believe the facts were true. Additionally, you must explain why the defendant honestly entertained the mistaken belief.
Mistake of Law
Mistake of law may operate as a defense in some instances. Generally, this mistake will not be a defense. Where mistake of law may operate as a defense, the mistake of law generally must involve a mistake of some other law other than the very law actually violated. Normally, this other law will be a non-criminal law. An example might involve a mistake as to the application of property law to a given fact situation which may involve the crime of larceny. If the defendant thought property law gave him/her the right to possession, the mental state of "intent to permanently deprive the other of possession" would not arise in the mind of the defendant.
Where mistake of law involves some other law other than the very law violated, the situation is treated as a mistake of fact.
What must be shown in order to operate as a defense:
1. the mistake of law other than the one violated must have been honestly entertained.
2. the mistake of law must have been based on reasonable belief.
3. the defendant's act would not have been a crime if the law had been as the defendant had believed.
If the mistake of law involved a mistake as to the very law actually violated, such a mistake of law will not operate as a defense because the mens rea of the crime is not negated by virtue of the mistake. Example: defendant did not know stealing or stalking was against the law and was charged with larceny or stalking.
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