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Criminal Law (Theft Crimes: Intent to permanently deprive V of property…

- - - - Continuing trespass doctrine: If D takes property, but at the time intends it to be temporary, and later decides to permanently deprive the owner of the property, doctrine of continuing trespass establishes concurrence b/w unlawful taking and requisite intent to steal
      - No intent if you think property is yours, no matter how unreas
      - If, at the time of taking, D intends to return property to V unconditionally and w/in a reas time, no intent IF D has ability to return. However you can't "undo" a larceny by returning it if you ever had the intent to permanently deprive (all elements checked out)
      - Intent is satisfied if D recklessly exposes property to loss or deals with property in a manner involving substantial risk of loss
    - - pawning the property, but with the intent to reacquire the pawned property and return it to the owner
      - intending to replace or pay for the property at a later time if, for example, the property is easily replaceable (i.e., not unique)
  - - - Larceny: Unlawful taking of property in someone else’s possession with intent to steal.
      - Embezzlement: Unlawful conversion of property in your possession with intent to steal.
      - False Pretenses: Obtaining title to property owned by someone else through fraud.
      - Larceny by Trick: Obtaining possession, but not title, through fraud, with intent to steal.
    - - Title = legal ownership, and implies possession.
      - Possession = full dominion and control over the property, but does not require title
      - Custody = physical control of property in someone else’s possession without full dominion over the property – possessor places strict limits on permissible use of the property.
- - - - if jury determines reas person in D's situation would have known V's lack of consent, that establishes rape
      - penetration satisfies "force" req
      - mistake of fact can be defense b/c no req to prove extrinsic force, but mistake must be both honest and reas (b/c general intent crime, not specific intent)
      - consent: determined objectively from observable circumstances
  - - - Fear of battery assault: D never intended to actually batter the V, but instead, to put the V in fear of an immediate battery --> D must act w/ threatening conduct intended to cause reas apprehension of imminent harm to V.
        
        Reas apprehension: No assault when reas person would not expect imminent bodily harm. More "expectation" than "fear" -- must simply anticipate that battery will result in immediate bodily harm. V must be aware of threat of harm.
      - failed attempted battery: proof that D intended to actually batter a V but failed --> so long as D intended to commit battery, no defense that V was not aware of assault or that D was not presently able to commit (tried throwing a rock at V and missed, even if V was unaware)
  - - - w/o legal justification/excuse
      - D unlawfully applies force (can be indirect like a rock if D threw it)
      - D does so intentionally, recklessly, or as a result of crim neg
    - - uses deadly weapon, or
      - special category of V (child, preg woman, cop)
      - causes serious bodily harm
- - - - General Intent: Only reqs desire to do the proscribed act and awareness that any attendant circumstances (e.g., lack of V's consent) are present; includes reckless and criminally negligent states of mind (rape, battery, kidnapping). Nullified by honest and reas mistake of fact.
      - Strict liability: no mens rea req'd. Act + Result = Guilt. (statutory rape, bigamy, public health, safety regs)
      - Specific intent: Reqs proof that D intended to create specifically prohibited harm, includes purpose or knowledge ("w/ intent to" (first-degree murder, assault, inchoate crimes, property-related crimes). Nullified by honest but unreas mistake of fact and voluntary intoxication.
      - Malice: reckless disregard of an obvious or high risk that hte particiular harmful result will occur.
    - - Recklessly: gross deviation from norm (the standard of care a reas person would exercise in the same situation) in consciously disregarding substantial and unjustifiable risk that certain circs exist or that a prohibte result will follow ("D knew the risk but didn't care") (aware of risk but not enough to have substantial certainty that a particular result will come from it). Conscious disregard is subjective, and substantial risk and gross deviation are objective.
      - Knowingly: knows, w/ almost absolute certainty, that their conduct will produce prohibited result. Subjective. Can include high probaility that circs exist and deliberatly avoiding learning the truth (agreeing to transport a locked box for lots of money or selling alcohol to someone that looks young without asking their age).
      - Criminal Negligence: substantial deviation from norm (standard of care) in failing to perceive substantial and unjustifiable risk ("D did not realize he created the risk, but should have, b/c a reas person in that situation would have"). Greater deviation than civil neg. All objective.
      - Purposely: conscious objective to engage in certain conduct or bring about certain result (inchoate (solicitation, attempt, conspiracy). Can also be called intentionally. Subjective.
      - Mixed terms:
        
        Willful: acts purposefully or knowingly, w/ moral turpitude (similar to intent). Lecture: ONLY purpose (not knowl)
        
        Intent: acts intentionally w/ purpose or knowledge (but for inchoate offenses, it really only means purpose, not knowledge)
  - - - Reflexive actions/sleepwalking lack volition so not legal acts
      - Acts performed under duress are volitional, but may be excused under a defense of duress defense
    - - Legal duty by K (life guard/nursing home)
      - Status (H/W, parent/child)
      - Statutory duties (LE)
      - Voluntary undertaking to rescue that is abandoned
      - Failing to help after creating risk (hit & run)
  - - - Substantial factor: Multiple causes/parties responsible but D's act was a substantial factor in causing crim result
      - Acceleration (homicide): D's conduct speeds up inevitable death, even if brief ("mercy" killing to put someone out of misery after they were stabbed or something is still murder)
      - "But for": result would not have occurred but for D's conduct
    - - If the intervening event is foreseeable, it will not supersede --> D is still liable. Foreseeable = negligence (Also D's sensitivites are foreseeable -- take V as you find him, eggshell skull rule --> dependent or responsive to D's initial cause)
      - If it is unforeseeable normally will supersede --> relive D of liability and break causal connection to crim result. Unforeseeable = grossly negligent or reckless conduct that accelerates a death set in motion by D (independent intervening cause or a mere coincidence more likely to be unforeseeable) (normal responses to D's conduct are foreseeable, like jumping into the ocean to avoid D's gunshots)
      - Assessing foreseeability: 1) was the intervening cause a dependent or responsive intervening cause? (dep or res IC will not supersede, unless they're totally abnormal response to D's act). 2) if no: independent/coincidental IC. Supersedes D's conduct, unless independent intervening force was foreseeable
- - - - a foreseeable outgrowth of conspiracy (murder of guard), and
      - committed in furtherance of conspiratorial goal
    - - Overt act req: CL: not req'd, agreement itself is a crime. ML/Majority: Req overt act in furtherance of conspiracy (beginning preparation to commit the crime is all that is req'd, can be very trivial (showing up to meeting spot, e.g.), unlike req in attempt when it is beyond prep to perpetration)
      - An agreement between 2+ persons
      - Intent to enter into the agreement
      - Intent by at least 2 persons to achieve he objective of the agreement.
    - - Withdrawal (CL + MPC): complete and voluntary withdrawal severs liability for future crimes, but no defense to conspiracy itself. Req's affirmative act that notifies all co-conspirators w/ enough time to abandon their plans. Can withdraw from the CONSPIRACY itself if you withdraw before an overt act, after only talking. If you withdraw after over act, only withdrawing from crime, not conspiracy
      - Renunciation (MPC only): withdrawal + affirmative act to thwart conspiracy can eliminate liability for conspiracy too
    - - "Chain" relationship: where several crimes are committed under one large scheme in which each member explicitly or implicitly knows of the other parties' participation and a community of interest exists, one single conspiracy results and all "links in the chain" are responsible for the crimes of the other
      - "Wheel and spoke" relationship: one common member enters into agreements to commit a series of crimes with others -> multiple conspiracies exist, and tip of each "spoke" is connected to common "wheel," not to other "spokes"
  - - - Specific intent or purpose to bring about criminal result (attempted murder: can only be intent to kill, no lower level of malice) PLUS
      - significant overt act in furtherance of that intent that proves D went past point of preparation and began perpetration.
    - - Many jxs: Proximity test: how close in time and physical distance D was to time and place target crime was to be committed
      - CL: D req'd to perform last act necessary to achieve intended result
      - Some use equivocality test: D's conduct unequivocally indicates he was going to complete target offense
        
        Ex: At CL, D would have to pull trigger to be guilty of attempted murder. Today (MPC), loading bullets while in proximity to intended V w/ clear line of sight would be suff
      - MPC: Acts prior are suff as long as "substantial step" toward commission that indicates a purpose to complete attempt has been made
    - - Abandonment/withdrawal: CL: no defense once attempt complete (moved from preparation to perpetration). MPC (minority): voluntary, complete abandonment is valid defense
      - Legal impossibility: Not guilty if thought committing a crime but it's not
      - NOT VALID DEF: Factual impossibility: D would have committed offense had facts been as she believed them to be --> D is GUILTY of attempt. Ex.: D thinks gun works, points at V, and pulls trigger. Its jammed and doesn't work --> D guilty of attempted murder
- - - - First-Degree murder: CL & Maj Rule: Proof that D's decision to kill was done w/ both premeditation and deliberation elevates 2nd degree to 1st degree murder. D must consciously decide to kill, so only "intent to kill malice" is suff.
        
        Premeditation: D must think about the act of killing. CL: Can premeditate immediately. ML: Some time necessary, but brief is enough time to decide. Most jxs require jury to find that premeditation occurred after intent to kill was formed, which means proof of some reflection (Min jx: same as CL). Quantity of thought.
        
        Deliberate: D must make deliberate choice to kill, reqs rational thought. Voluntary intoxication, diminished capacity may prevent. Quality of thought
      - First-Degree Felony Murder: when the felony is enumerated by statute (e.g. rape, burglary, robbery, arson, kidnapping)
      - Second-Degree Murder: a catch-all for all other CL murders. any murder committed without purpose to kill
    - - 4 types of malice:
        
        Felony murder--killing during course of felony independent of the killing, and D had requisite intent to commit the felony. Intent to kill not req'd. Common law: felony murder would stand if the killing was done by anyone. Under the modern approach, the killing must be done by the D or co-D
        
        Co-felon liability: Varies by jx
        
        Modern Majority: Agency rule: FM liability limited to killing committed by a hand of co-felon
        
        Human Shield Exception: If a victim is killed by the cops and a co-felon was using the victim as a human shield to try to get away, the felon is guilty too
        
        some apply when non-felon kills non-felon -- V aims at felon but kills bystander
        
        Exempts FM liability for killings at hands of non-felons
        
        CL: Attaches to all felons for any homicide during felony, just reqs proxy cause of death. Ex: group robbery. Homeowner trips on way to call cops and dies. All felons are responsible
        
        CL Exceptions:
        
        Deserving V: Min CL: killing a co-felon
        
        Non-violent felon: Min CL: Exempt felony if not armed and did not participate/have knowl of co-felons' intent
        
        Redline limitation : Maj CL: Police or V kills co-felon --> felon not guilty if a co-felon (and not an innocent) is killed
        
        Obstacles for prosecution
        
        "Right type of felony": 1) listed in statute or 2) be independent (NOT battery, assault, manslaughter or anything with the purpose of harming someone) of killing and inherently dangerous. BARRK crimes satisfy both reqs:
        
        Kidnapping
        
        Robbery
        
        Rape
        
        Arson
        
        Burglary (unless w/ intent to harm someone inside)
        
        "Right time": death must be result of injuries inflicted during the commission, attempt, or immediate flight from felony. Felony starts when D could be convicted of attempt, and terminates when D reaches temporary safety
        
        "Right connection to felony": death must be foreseeable outgrowth of felony. Liberally applied -- only coincidences ruled out.
        
        If reqs ^ are met --> malice is automatically inferred. A complete defense to the underlying crime is a defense to FM
        
        Reqs
        
        of serious or inherently dangerous felony (BARRK)
        
        unintentional killing +
        
        during commission or attempted commission +
        
        proximately caused (death was foreseeable outgrowth of felony) +
        
        Intent to kill: D acts w/ the purpose to kill another or w/ knowl that his conduct will kill another. Deadly weapons doctrine: intent to kill inferred from D's use of instrument designed to kill or used in manner likely to kill or inflict grievous bodily harm (swinging a bat at V's head)
        
        Depraved Heart: unintended kill resulting from extreme risk creation that manifests wanton disregard for human life. Ex: Russian roulette (tip: 1/6 chance not substantial certainty). Barbri: reckless indiff to an unjustifiably high risk to human life. Unintentional killing results from:
        
        reckless or grossly neg conduct +
        
        and demonstrates wanton indifference to human life and conscious disregard of unreas risk of death or serious bodily injury
        
        that creates an extreme risk to others +
        
        Intent to inflict serious bodily injury: Conscious desire or substantial certainty that D's actions will result in V's injury. Serious/grievous bodily harm = significant but not fatal injury
      - Implied Malice: D caused death as a result of extreme reckless or criminal neg conduct that manifested a wanton disregard for human life. (reckless or neg w/o wanton disregard = involuntary manslaughter, not murder. no implied malice)
      - Express Malice: D intended to kill another human being. To prove intent to kill, D acted w/: 1) purpose to kill, 2) knowl that her conduct would kill, or 3) intent to inflict grievous bodily harm altho no intent to kill
  - - - Heat of passion negates malice element --> intentional killing mitigated by adequate provocation or mitigating circs negating malice
      - Adequate provocation: heat of passion negates malice, and murder deescalates to manslaughter. Two components:
        
        objective component: a provocation that would lead a reas person to lose self-control and fly into sudden homicidal rage (threatened w/ deadly force, victim of serious battery, finding spouse cheating). Mere words not enough (generally). Rage must be hot -- a reas person would not have had the time to cool off between provocation and killing.
        
        subjective component: There must be a causal connection between the provocation and the killing. The defendant must actually have been provoked and must not have actually cooled off.
      - mitigating circumstances that negate malice (deescalate murder to manslaughter):
        
        Diminished mental capacity: a minority of states allow a mental disturbance short of insanity to nullify malic and reduce murder to manslaughter
        
        Imperfect Self-Defense/Mistaken Justification -- using more force than necessary in defense because of an honest but UNREAS mistake of fact
    - - Recklessness: D is subjectively aware of risk and ignores it
      - Gross neg: unaware of risk but reas person would have been aware. Ex: mishandling loaded weapons, driving dangerously like DUI, shaking baby so hard it causes death.
      - D did not intend to kill or expect conduct to cause death, but death still results from unjustified risk creation. Only implied malice if so extreme it indicates a wanton disregard for human life.
      - Misdemeanor manslaughter (maj rule): unintentional killing that occurs during commission/attempt of a misdemeanor or a non-BARRK felony, like petty theft
- - - - Homicidal self-defense (deadly force): permitted only when D 1) is without fault, 2) is confronted w/ unlawful force and 3) reas believes that they are threatened w/ imminent death or great bodily harm
        
        Unclean hands: First aggressor may not claim self-defense. CL: aggressor could regain right to self-defense only by complete withdrawal perceived by the 1st V. ML: 1st aggressor has right to self-defense if the 1st V responds to the aggression w/ excessive force
      - Retreat rule: CL: V of unlawful violence had duty to retreat before use of deadly force (eliminated in 35 states ("stand your ground" jxs). Even when retreat req'd, not req'd in D's own home, car or office and not req'd if retreat not feasible
    - - Mistake of fact must negate the state of mind. For general intent crimes, the mistake must be reas. For specific intent crimes, reas is not req'd (any mistake of fact is a defense). Not a defense to strict liability offenses.
      - Mistake of law is NOT a defense to any crime
    - - no reas alternative to breaking law to avoid greater harm +
      - D not responsible for causing the harm. CL: necessity never defense to murder, unless raised as defense to underlying felony for FM. MPC: Can raise for all charges, even homicide, which might result in acquittal if D kills 1 person to save lots of lives
      - Necessary to avoid immediate threat of greater harm to persons or property +
    - - Min: D steps into shoes of V attacked -- if 3rd party was first aggressor or failed to retreat when req'd by law, D has no defense
      - Maj: reasonableness of D's belief that 3rd person was being unlawfully attacked. If reas but mistaken, D can still claim defense of others
  - - - Involuntary intoxication: complete defense to all elements of any crime req'ing proof of any intent (general, specific, malice) so long as it negates mens rea or causes temporary insanity (so that they didn't know or couldn't understand the wrongfulness of their conduct). Results when the individual takes the intoxicating substance 1) w/o knowledge of its nature, 2) under direct duress imposed by another, or 3) pursuant to medical advice while unaware of the substance's intoxicating effect. May be treated as mental illness in some jxs.
        
        MPC: D was involuntarily intoxicated and as a result lacked the substantial capacity to 1) appreciate the criminality of their conduct or 2) conform their conduct to the requirements of law.
      - Voluntary Intoxication: self-induced (intentional taking w/o duress a substance known to be intoxicating). Person need not have intended to become intoxicated. May be a defense to crimes req'ing intent or knowl if the intoxication prevented the accused from formulating the requisite specific intent--good defense for specific intent crimes but not for general defense crimes (including murder, which includes recklessness as a type of malice, but will only deescalate to manslaughter). Won't negate recklessness, neg, or SL
    - - Common Law: "M'Naghten rule." : Focuses on D's reasoning abilities. D relieved of crim resp. upon proof that at time of commission:
        
        D suffered from severe mental disease or defect ("disease of the mind") that caused a defect of reason such that,
        
        “Disease of the mind” includes all mental abnormalities, but not a psychopathic personality
        
        As a result, unable to know either 1) nature and quality of act (hallucinating), or 2) what he was doing was wrong (delusional self-defense)
        
        jx split: whether "wrong" includes both legal and moral wrongs. some jxs: MNR doesn't apply if D understands conduct is illegal, but morally right. Other jxs: Ds who do not know act was morally wrong = insane, regardless of belief of illegality of act
      - Model Penal Code Test: D not resp. for crim conduct if, at time of such conduct and as a result of mental disease or defect, he lacked substantial capacity to appreciate criminality (wrongfulness) of his conduct or to conform conduct to the reqs of law (control impulses)
      - Irresistible impulse test: not guilty when D had a mental disease/illness that kept him from controlling his conduct
      - Durham (or NH) rule: D not crim resp. if unlawful act was product of mental disease/defect -- it would not have been committed "but for" the disease/defect
      - Burden of Production: D must first present "some E" of insanity at the time of the offense. Burden of Proof:
        
        Federal: D must prove insanity by C&C E
        
        State: Split. MPC (maj): D must prove insanity by POTE. Minority jxs: prosecution must prove sanity beyond a reas doubt
- - - - CL: must be dwelling of another (possession, not nec ownership).
      - Modern: no req of dwelling of another (can be any property, including own property)
- - - - Modern minority: accomplice liab may be est'd when provider of goods or services has knowledge they're assisting in commission of a crim and benefits from it
    - - CL approach
        
        principal in the second degree: one who aids, abets, or encouraged the principal and is present at the scene (e.g., getaway driver)
        
        accessory before the fact: one who aids, abets, or encourages, but is NOT present at the scene of the crime
        
        accessory after the fact: one who w/ knowledge that the other committed a felony, helped escape arrest or punishment. Requires proof: 1) of completed felony; 2) that accessory knew of comm'n of felony; and 3) that accessory personally gave aid to felon to hinder their apprehension, conviction, or punishment
        
        principal in the first degree: engaged in the act/omission or caused an innocent agent to do so.
      - ML: one who meets the reqs to be CL accessory after the fact is charged with distinct crime (hindering apprehension or obstruction of justice), NOT with crime committed by principal. Barbri: all "parties to the crime" can be found guilty of the principal offense (except accessories after the fact).