I. Theories of Punishment A.

. Utilitarianism The criminal law should be used to help maximize social welfare (happiness) It means we only punish to the extent that society is made happier How can social welfare be maximized? 1. General deterrence Others seeing people do a crime and get punished will refrain from doing the same 2. Specific deterrence If you punish a person, maybe they won't commit a crime in the future It is a loss of their liberty that they don't want to lose again 3. Incapacitation If someone is in jail and unable to commit a crime, society is happier B. Retribitavism We punish wrong-doing because it is morally right and an obligation Everyone is treated as a human being (as an end, rather than a means) If someone acts in a way less than a human being should act, then we show them respect by punishing them Everyone makes choices and they get what they deserve KEY: Proportionality The punishment should fit the crime The evil that the criminal inflicts on society is repaid C. Constitutional Restraints on Punishment Due Process If reasonable people disagree about the application of a crime, then it is void Fail to do one of two things: 1. Fail to notice 2. Arbitrary or Ex Post Facto The Constitution prohibits laws that impose criminal liability after the fact 1. Conduct that is lawful when committed 2. If it makes a crime great than when it was committed (retroactive increase of punishment) 3. Inflicts greater punishment than when it was committed 4. If a law reduces the amount of evidence required to convict and applies the law retroactively

You can't change the rules in the middle of a game to favor a particular prospect 8th Amendment The Constitution prohibits cruel and unusual punishment, either: 1. The punishment is grossly disproportionate to the crime; or 2. The punishment does not measurable advance deterrence or retribution. II. Sources of Criminal Law Common Law Crimes decided by judges, imported from England into the U.S. Statutory Law Crimes are defined by state legislature Started in the 19th Century Model Penal Code Influential across the country Never fully adopted III. Elements of Crime Every crime shares: actus rea, mens rea, and causation. A. Actus Reas The physical or external element of a crime Types: 1. Prohibited conduct (i.e., traffic laws) 2. Prohibited result (i.e., killing a person, homicide) 3. Attendant Circumstances (i.e., statutory rape crimes require age) Facts or circumstances that must be present to commit a crime Conduct and results have to be committed by a voluntary act Omissions do not generally form the actus reas unless an omission violates a legal duty Look for whether there is a: 1. Statute 2. Contracts, Certifications (i.e., nanny, lifeguard, doctor) 3. Relationships (i.e., parent/child, husband/wife) 4. Assumption of Care If you voluntarily accept to take care of someone, you are liable for them 5. Creation of a danger (i.e., hit and run) B. Mens Rea

 The internal or mental element of a crime Model Penal Code Purposefully Conscious object - goal, what is trying to be done (i.e., driving fast to get somewhere, wanting to kill someone) Knowingly Awareness that you are engaging in a crime or a result that would occur Recklessly Gross deviation from the norm and consciously disregarding a substantial and unjustifiable risk Negligently Gross deviation from the norm and failing to be aware of a substantial and unjustifiable risk Negligence vs. Recklessness Awareness of the risk If you know of the risk and ignore the risk, that is recklessly If you don't know of the risk and should know of the risk, that is negligently A difference in kind, not a difference in degree Common Law Negligence and recklessly mean the same thing Intentionally means knowingly and purposefully doing something Maliciously Typically now means recklessly at the very least Willfully Either intentionally or any culpable state of mind (from negligence all the way up) The actus rea and mens rea have to occur at the same time C. Causation For result crimes, causation is relevant because the conduct had to have caused the prohibited result Two components 1. Actual Cause; and "But for" your conduct, would the prohibited result have occurred? 2. Proximate Cause. Foreseeability is required

The natural and probably consequence of your conduct Some things that can get in the way of foreseeability: 1. Intervening acts 2. Passage of time 3. Bizarre coincidences IV. Crimes Against the Person A. Homicide Common Law 1. Murder Actus reas - unlawful killing of another human being Mens rea - malice aforethought Malice means A) Intent to kill; B) Intent to inflict serious bodily injury; C) Depraved heart murder (gross recklessness in risking human life); or D) Felony murder Causation Degrees First Degree A) Mens Rea - premeditated and deliberate (mercy killings) B) Felony Murder - if the death results from statutory felonies (rape, robbery, larceny, drug crimes, terrorism) Second Degree - any other type murder and all other felonies that result in death 2. Felony Murder Actus Rea - a killing during the course of a felony Mens Rea - none, it is strict liability Causation - conduct during the felony has to have caused the death Limits Killing Could be by anyone in the old approach Modern approach is that it has to be the D or Co-D, not third parties or police officer During Going to the felony and leaving the felony are included

 Felony It used to be violent crimes (rape, robbery, larson) Modern times it has been expanded to any other felony that results in death Burden of proof: the felony must have been proven beyond a reasonable doubt Two other limitations: Some states limit it to inherently dangerous felonies (i.e., not check fraud) Some states say that the felony has to be independent of or separate from the killing (i.e., robbing a bank and running over someone when leaving, this is separate) 3. Manslaughter Two types: 1. Voluntary A murder that is committed in the heat of passion Heat of passion: A) A sudden and intense reaction; B) Adequate provocation that would inflame a normal person(i.e., someone cheating and getting caught, someone seeing a relative getting hurt); and Words alone are not enough C) No cooling off period. 2. Involuntary Two types: Recklass or Negligently killing A) Actus rea - killing B) Reckless or negligent killing of someone Misdemeanor manslaughter The predicate crime is a misdemeanor and death results Model Penal Code 1. Murder No degrees Mens Rea needed: 1. Purposefully 2. Knowingly

3. Recklessly with extreme indifference to human life (presumed if the murder occurs during serious felonies, but can be prove differently) There is no felony murder 2. Manslaughter No involuntary or voluntary Two ways to commit manslaughter: 1. Like common law heat of passion, if murder was done with extreme mental and emotional distress for which there is a reasonable explanation or excuse from the actor's situation under the circumstances as he believed them to be It doesn't have to be an immediate reaction The juror gets into the killer's shoes to determine culpability 2. Recklessness plus a killing 3. Negligent homicide Negligently killing B. Rape General intent crime Actus Reas 1. Sexual Intercourse (common law: penetration) 2. By force or threat of force 3. Without consent Mens Rea Common Law: any culpable or blameworthy state of mind regarding consent (i.e., negligent or reckless about whether or not they consented) A reasonable mistake, in some jurisdictions, will get you off the hook with mens rea Statutory Rape Acuts Rea Sex with a minor (14 in some states, 16 in others, 18 in others) Mens Rea None, it is strict liability V. Crimes Against Property A. Larceny Actus Rea - taking away another's property by trespass or trick (without valid consent) Mens Rea - the intent to permanently deprive

Tips: 1. Brief dispossession counts You don't have to intend to keep the property personally You can take it with the intent to keep forever, but then return it and still be guilty of larceny) 2. It has to be personal property 3. Title does not pass B. Embezzlement Actus Rea - conversion of property that is held in trust Mens Rea - the intent to defraud C. False Pretenses Actus Rea - taking title to property by misrepresentation Mens Rea - the intent to defraud Tip: Title passes Future promises do not count Larceny vs. Embezzlement Possession is the difference The owner is at issue Embezzlement is when the criminal is already in possession of the property D. Burglary Breaking and entering a dwelling of another at night with the intent to commit a felony therein Breaking: any force by threat or fraud (gun, saying you're the police) Doesn't count if a door or window is already open Entering: any part of the body or tools used (includes bullets) Dwelling: someone sleeps there At night (common law) Specific intent to commit a felony Modern Version: Breaking and entering a building of another with the intent to commit a felony No longer needs to be a dwelling or at night E. Robbery Actus Rea - taking another's personal property from his or her presence by force threat of force

Mes Rea - with the intent to permanently deprive that person This is larceny by force or threat of force Robbery vs. Embezzlement Presence is the difference Robbery is then and there Embezzlement is when the property is not there VI. Inchoate Offense These are specific intent crimes There is a purpose of committing a particular crime A. Solicitation Actus Rea - asking or encouraging someone to commit a crime Mens Rea - with the intent that they commit the crime Liability Rules: 1. Solicitation is complete once the words are spoken (can't be taken back) 2. Solicitation merges into the target offense (Merger Doctrine) 3. Impossibility is not a defense (i.e., an undercover cop is solicited) B. Conspiracy Actus Rea - agreement to commit and unlawful act or series of acts Some states require an overt act - a step taken towards completion of the crime) (i.e., scoping out the scene, buying the materials) Mens Rea - intent to commit the crime being agreed to Approaches: Unilateral Conspiracy (Minority and MPC): Only one party must have the intent to achieve the crime (the other party can be an undercover cop) Bilateral Conspiracy: Both parties have to have the intent to commit the crime (undercover situation doesn't work) Liability Rules: 1. You are at least liable for entering into a conspiracy 2. You are also liable for the target crime 3. Pinkerton Liability (Common Law): you are also liable for foreseeable crimes by co-conspirators in furtherance of the conspiracy 4. Impossibility is no defense C. Attempt Actus Rea - Dangerous proximity (Common Law)/ substantial step (MPC) toward the completion of a crime beyond mere preparation Mens Rea - The intent to commit the target crime

Getting out a gun and loading it, without other facts, you still need to know what they are thinking The more a person does, the more you have to show their mens rea Liability Rules: 1. Attempt merges into the target crime upon completion (Merger Doctrine) 2. Factual impossibility is no defense, legal impossibility is a defense Factual impossibility - attempt to poison, but use a non-poisonous element by mistake Legal impossibility - if something isn't a crime, even though you think it is VII. Accomplice Liability Common Law - depends on the party you are to the crime Parties to the crime: 1. Principle in the first degree The person who is present at the scene of the crime and commits at least one element of the crime (i.e., masked bank robber) 2. Principle in the second degree The person who is present at the scene of the crime to help in the completion, but doesn't commit any elements of the crime (i.e., getaway car driver) 3. Accessory before the fact The person is not at the scene of the crime, but provided assistance before (i.e., the planner or the supplier) 4. Accessory after the fact The person is not at the scene of the crime, but provided assistance after (i.e., family member who provides hide-out) Liability Rules: 1. For principles in the first and second degree and accessories before the fact are liable for: A. The committed crime; and B. Foreseeable crimes. 2. For accessories after the fact, they are not liable for the committed crime, but are liable for a separate crime for being an accessory after the fact Modern Law (Statutory Approach) and MPC (in a nutshell) Not focused on first and second degree principles or accessories before and after the fact

Typically say, you are liable if, under the actus reas, you assisted in the crime and, under mens rea, you intended to assist the commission of a crime Grandma example The grandkids want to rob the bank The grandmother at least wants them to have a health breakfast to start their day and have a successful bank robber She is liable under the modern approach because she is assisting VIII. Defenses A. Self-defense Depends on whether you use deadly force or non-deadly force and whether it was necessary 1. Non-deadly Force You have to have reasonably believed that the non-deadly force was necessary to defend against imminent, unlawful force (i.e., someone is about to punch you) You DO NOT need to retreat 2. Deadly Force You have to have reasonably believed that deadly force was necessary to defend against imminent, unlawful deadly force or serious bodily injury, then you can strike first (i.e., someone is about to shoot you) Majority: You don't have to retreat Minority: You have to retreat, unless: a) it is in your home; b) it is rape or robbery. Also, you don't have to retreat when it is when someone is making a lawful arrest. (REASON: this is because people don't need to think they Depends on whether you are the aggressor or not The aggressor (the person who threatens unlawful force first) cannot use self-defense, unless: A. The aggressor withdraws with communication through words or actions; or B. The escalation goes from non-deadly force to deadly force. (i.e., in a bar fight, if it starts out with a fist punch, then the other person pulls a gun) MPC Self-defense: There is no imminence requirement (i.e., J. Lo's 'Enough') Your use of force was immediately necessary on the present occasion to protect against unlawful force

 Immediately necessary than imminent force MPC was thinking of battered woman's syndrome Issue under MPC: The level of your mistake determines your liability, mens rea, for the crime I.e. - if the woman was negligent in use of force, then she is liable for negligent homicide