Criminal Law & Procedure Outline

I. HOMICIDE

A. INTENDED KILLINGS

1. Premeditation, Deliberation

First-degree murder includes intent-to-kill murder committed with premeditation and deliberation.

Premeditation can occur in a short amount of time. It is when a person has made a plan or scheme to kill another.

Deliberation is the decision to kill in a cool and dispassionate manner.

On the MBE, anything that indicates a plan or scheme to deliberately kill another is a good indication of premeditation and deliberation. For example: poisoning, torture, bombs, or lying in wait.

Intoxication can mitigate murder from the first degree to the second degree.

Example: A hates his coworker and wants to kill him. He learns the coworker will be at a neighbor's house, so he goes there with a gun, hoping to provoke his coworker into attacking him so that he has an excuse to shoot him. He insults the coworker, enraging him. The coworker grabs a knife and runs toward A. A shoots and kills the coworker. A is guilty of first-degree murder because he committed the killing willfully with premeditation and deliberation.

2. Provocation

Voluntary manslaughter is an intentional killing that would otherwise be murder, but for the existence of adequate provocation.

Adequate Provocation is provocation that would lead a reasonable person to lose self-control. Rage is hot.

Example: The defendant finds his wife in bed with another man, or the defendant is punched in the face and is enraged by it.

Mere words are not adequate provocation under the majority view.

B. UNINTENDED KILLINGS

1. Intent to Injure

Malice aforethought for common law murder can be shown by a defendant's intent to inflict great bodily injury.

Example: D struck V in the face with a baseball bat, intending to inflict serious injury. V died after three days in the hospital. Even though D only intended to injure V, he can be convicted of murder.

2. Reckless and Negligent Killings

Involuntary manslaughter is the unintentional killing of a human being in a criminally reckless manner.

Criminal Recklessness is consciously disregarding a substantial and unjustifiable risk resulting from the actor’s conduct.

Depraved-heart murder occurs when a person is reckless and indifferent to an unjustifiably high risk to human life. This can also be called extreme negligence.

Example: D, angered after losing his job, goes to his former workplace and fires shotgun rounds into the air. He did not intend to kill anyone but only wanted to frighten people. One of the bullets ricocheted and killed his best friend. D is guilty of depraved-heart murder because, even though he did not intend to kill, his conduct created a high risk of death.

Another example: Defendant became intoxicated and drove away. Craving another drink, he stopped his car, broke the window of a liquor store, and reached for a bottle. When the night watchman arrived, the defendant struck and killed him with the bottle. The defendant is guilty of depraved-heart murder for the watchman's death because he acted recklessly.

3. Felony Murder

Felony murder is an unintended and foreseeable killing proximately caused by and during the commission or attempted commission of an inherently dangerous felony.

Inherently dangerous felonies are typically BARRK: Burglary, Arson, Rape, Robbery, and Kidnapping.

First-degree felony murder is a killing proximately caused during the commission or attempt of an enumerated or inherently dangerous felony.

Second-degree felony murder is where the felony is not BARRK.

Felony murder is a strict liability crime.

The death must be a foreseeable outgrowth of the felony.

The death must be a result of injuries inflicted during the commission, attempt, or immediate flight from the felony.

Example: Defendant was robbing a store when his accomplice accidentally shot and killed the store clerk. Defendant is guilty of felony murder because the killing occurred during the commission of an inherently dangerous felony.

Another example: D, while committing a burglary, caused the death of a bystander. D is guilty of felony murder.

Merger Doctrine: The underlying felony must be independent of the killing.

Example: Manslaughter is a lesser-included offense of murder and has many of the same elements as murder, so it will merge into the murder offense if used as the underlying felony for felony murder.

Agency Theory: The felon or his agent (co-felon) must cause the death.

Proximate Cause Theory: The felon is liable so long as he "sets in motion" the acts that result in death.

A majority of jurisdictions limit felony murder liability to killings committed by a co-felon.

A large minority of jurisdictions allow an affirmative defense for nonviolent co-felons if they were unarmed, unaware that violence would occur, and did not encourage the violence.

There is no flat prohibition against the death penalty for felony murder. The death penalty may be imposed on someone who was a major participant in the underlying felony and acted with reckless indifference to human life.

4. Misdemeanor Manslaughter

Misdemeanor manslaughter (minority rule) is an unintentional killing that occurs during the commission or attempt of a misdemeanor or a non-BARRK felony.

The misdemeanor must be malum in se.

Example: Defendant was driving while intoxicated when he hit and killed a pedestrian. Defendant is guilty of misdemeanor manslaughter.

II. OTHER CRIMES

A. THEFT AND RECEIVING STOLEN GOODS

Larceny is the trespassory taking and carrying away of personal property of another with intent to permanently deprive them of it. The defendant must use force or the victim must feel fear. The intent to steal must be present at the time of the taking.

Example: D took and carried away a photocopy of an etching from a museum. This was personal property of the museum, and it was taken with the intent to steal it. D is guilty of larceny.

Larceny by trick occurs when D intentionally makes a false representation of a material past or existing fact to obtain custody (but not title) of personal property of another. To determine if it's larceny by trick or false pretenses, look at what the victim intended to do when they handed over the property. If they handed it over and never intended to get it back, it's false pretenses. Otherwise, it is larceny by trick.

Embezzlement occurs when the fraudulent conversion or misappropriation of property of another by one who is already in lawful possession of that property.

False pretenses is the same as larceny by trick, except D obtains title to the property with the intent to defraud.

Receiving stolen property is when the defendant receives stolen property knowing it was stolen with the intent to permanently deprive the owner of the property.

B. ROBBERY

Robbery is larceny from the person or presence of the victim by force or intimidation.

The force or threat of force must be used to gain possession of the property. If the victim is not afraid and no force is used, the defendant cannot be liable for robbery.

Example: A homeless man intimidated a woman by telling her he had a gun in his pocket and demanded her purse. Although he did not actually have a gun, he is guilty of robbery because he used intimidation to take the purse.

C. BURGLARY

Burglary is the breaking and entering the dwelling of another at night with the intent to commit a felony or larceny.

The intent to commit a felony must be present at the time of the breaking and entering.

Example: D entered a museum lawfully with the intent to commit a crime. He did not commit burglary because his entrance was lawful.

D. ASSAULT AND BATTERY

Assault can be either an attempted battery or the intentional infliction of apprehension of imminent bodily harm. The victim does not need to be aware of the attempt.

Battery is the unlawful application of force to another resulting in bodily injury or offensive touching.

Mayhem is a common-law felony battery that causes the dismemberment or permanent disfigurement of a person.

E. RAPE; STATUTORY RAPE

Rape is unlawful sexual intercourse without consent using force or threat of force.

Statutory rape is sexual intercourse with a minor. It is a strict liability crime, so mistake of fact is not a defense.

F. KIDNAPPING

Kidnapping is the unlawful confinement or restraint that involves moving or hiding the victim.

G. ARSON

Arson is the malicious burning of the dwelling of another. It requires a reckless disregard for an obvious or high risk that the structure would burn.

Malice is proven by showing a reckless disregard for an obvious or high risk that the structure would burn.

The burning must be of the dwelling house of another.

Example: D burglarized a jewelry store. As he entered, he short-circuited the store's burglar alarm system. The smoldering wires eventually caused a fire that destroyed the store. D is not guilty of arson because the burning was not obvious or foreseeable.

H. POSSESSION OFFENSES

The defendant exercises dominion and control over a prohibited object or substance.

Example: Possession of illegal drugs.

III. INCHOATE CRIMES; PARTIES

A. INCHOATE OFFENSES

1. Attempts

Attempt is an act done with the intent to commit a crime where the act falls short of the full commission of the crime.

The defendant must have the specific intent to complete the crime and take action that goes beyond mere preparation.

Dangerous-Proximity Test: The defendant’s actions are dangerously close to completing the crime.

Unequivocal Test: The defendant’s actions unequivocally or unquestionably show an intent to commit the crime.

Substantial-Step Test: Requires a major step or action beyond mere preparatory steps.

Example: A woman promised to pay a hit man to kill her neighbor. The hit man bought a gun and watched the neighbor's house for an opportunity to shoot him. The neighbor tripped, fell, and hit his head, dying immediately. The hit man, believing the neighbor was unconscious, shot him twice in the chest. The woman is guilty of attempted murder because she hired the hit man with the intent to murder her neighbor.

2. Conspiracy

Conspiracy is an agreement between two or more people to commit an unlawful act or achieve a lawful goal by unlawful means.

The defendants must have the specific intent to commit the unlawful act.

The parties must agree on the essential objectives of the conspiracy.

Example: Four men are charged with conspiracy to commit a series of bank robberies. The robbers wore masks and gloves and stole the bank surveillance tapes. There was circumstantial evidence that tied each man to the conspiracy. During cross-examination, a witness testified that one defendant was in jail during six of the robberies. This defendant is not entitled to an acquittal because a conspirator need not be present at the commission of each crime.

Overt Act: At common law, an overt act in furtherance of the conspiracy was not required. Most states now require an overt act.

Under the common law, a conspiracy requires a plurality of agreement. In other words, two or more people must actually agree to commit the crime. For example, a person cannot be guilty of conspiring with an undercover police officer or with someone who intends to report the crime to the police.

Liability for Co-Conspirator Crimes: A conspirator is liable for the crimes of co-conspirators if: 1) the crimes were committed in furtherance of the objectives of the conspiracy and 2) the crimes were foreseeable.

Withdrawal: A conspirator can withdraw from a conspiracy by performing an affirmative act that notifies all members of the conspiracy of their intent to withdraw. The withdrawal must be communicated in time for the co-conspirators to abandon their plans. Even if a withdrawal is effective, the conspirator is still liable for the conspiracy itself and any crimes committed in furtherance of the conspiracy prior to their withdrawal.

3. Solicitation

Solicitation is inciting, counseling, advising, urging, or commanding another to commit a crime with the intent that the person solicited commit the crime.

The crime of solicitation is complete when the solicitation is made. It does not matter if the person solicited agrees to commit the crime or if the crime is actually carried out.

Example: A asks B to kill C. Even if B refuses, A is still guilty of solicitation.

B. PARTIES TO CRIME

Accomplice liability is not a separate crime. It is a way to hold people liable for a crime when they assisted the principal in committing the crime.

Principals are those who commit the actus reus of the crime.

Principal in the first degree: The person who actually commits the crime.

Example: A commands B to kill C. B kills C using a revolver. B is the principal in the first degree.

Principal in the second degree: A person who is present at the crime and aids and abets in its commission, but does not take part in the actual commission of the crime.

Example: A and B decide to rob a store. A waits outside as a lookout while B robs the store. A is a principal in the second degree.

Accomplices: People who aid a principal in perpetrating a crime by conduct such as planning, participation, or evasion of apprehension. The accomplice must have intended to aid the principal and intended that the crime be committed.

Example: A drives B to the bank, knowing that B plans to rob it. A waits outside and drives B away after the robbery. A is an accomplice to robbery.

Accessories:

Accessory before the fact: A person who aids, abets, counsels, or commands the principal in the commission of the crime, but is not present at the crime.

Accessory after the fact: A person who, with knowledge that a felony has been committed, helps the principal or an accomplice avoid arrest or conviction.

Mens Rea: The majority rule is that an accomplice must act with the purpose of promoting or facilitating the commission of the offense. The minority rule is that an accomplice is liable if he intentionally or knowingly aids or causes another person to commit an offense.

Actus Reus: An accomplice must provide some assistance or encouragement to the principal. Mere presence at the scene of a crime is not enough to make someone an accomplice.

Example: Nine gang members were charged with the murder of another gang member. The gang leader pleaded guilty. The gang leader announced a party, intending to kill the other gang member there, but he did not tell anyone about the plan. At the party, after everyone was intoxicated, the gang leader stabbed and killed the other gang member. The other eight gang members watched and did nothing. They are not guilty of murder because they took no affirmative act and were merely present at the scene.

Natural and Probable Consequences Doctrine: An accomplice is liable for the natural and probable consequences of the principal's acts, even if the accomplice did not intend for those consequences to occur.

Innocent Instrumentality Rule: If a person uses an innocent person to commit a crime, the person using the instrumentality is considered the principal.

Example: A tells B to deliver a package to C. A knows that the package contains a bomb, but B does not. The bomb explodes, killing C. A is the principal and B is an innocent instrumentality.

IV. General Principles

A. Acts and Omissions

Actus Reus - A voluntary act or omission that causes a social harm.

Voluntary Act: A physical and voluntary act. Unconscious acts, acts while asleep or under hypnosis are not voluntary.

Omission (Failure to Act): A failure to act when there is a legal duty to do so. A legal duty exists when:

A statute requires action.

The relationship between the defendant and victim imposes a duty (e.g., parent-child, spouse-spouse).

A contract obligates the defendant to act (e.g., a lifeguard).

The defendant voluntarily assumes a duty and prevents others from helping.

The defendant created the risk of harm.

Moral Duty: A moral duty alone is not enough to create a legal duty to act.

B. State of Mind (Mens Rea)

Required Mental State - The mental state the defendant must have had at the time of the crime to be guilty of the offense.

Common Law Mental States:

Strict Liability: No mens rea is required. The act itself is enough for guilt.

General Intent: An awareness of all factors constituting the crime. Generally, the intent to perform the act.

Specific Intent: The intent to commit the criminal act and the intent to achieve a specific result.

Malice: Acting intentionally or with reckless disregard of an obvious or known risk.

Transferred Intent: Intent to harm one person is transferred to the person actually harmed.

Model Penal Code (MPC) Mental States:

Purposely: Conscious object to engage in conduct or cause a result.

Knowingly: Aware that conduct is of a certain nature or that a result is practically certain to occur.

Recklessly: Consciously disregarding a substantial and unjustifiable risk.

Negligently: Should be aware of a substantial and unjustifiable risk.

Strict Liability - Crimes where no mens rea is required. The act itself is enough for guilt.

Examples: Statutory rape, selling alcohol to minors.

Mistake of Fact or Law - A mistake that negates the required mens rea.

Mistake of Fact:

Specific Intent Crimes: Any mistake (reasonable or unreasonable) can be a defense.

General Intent Crimes: Only a reasonable mistake is a defense.

Strict Liability Crimes: Mistake of fact is not a defense.

Mistake of Law: Generally, not a defense, even if relying on advice from a lawyer. Limited exceptions exist.

C. Responsibility

Mental Disorder (Insanity) - A legal defense based on the defendant's mental state at the time of the crime. The defendant has the burden of raising this defense.

Tests for Insanity:

M'Naghten Rule: Due to mental disease or defect, the defendant did not know the nature and quality of the act or did not know it was wrong.

Irresistible Impulse Test: Due to mental disease or defect, the defendant could not control their actions.

Durham Test (New Hampshire): The crime was the product of the defendant's mental disease or defect.

MPC Test: Due to mental disease or defect, the defendant lacked substantial capacity to appreciate the wrongfulness of their conduct or conform their conduct to the law.

Intoxication - Can negate the mens rea for some crimes.

Voluntary Intoxication: Only a defense to specific intent crimes if it negates the specific intent.

Involuntary Intoxication: Treated like insanity and can be a defense to both specific and general intent crimes.

D. Causation

Actual Cause ("But-For" Causation): The defendant's conduct must be the cause-in-fact of the harm. The harm would not have occurred but for the defendant's conduct.

Proximate Cause (Legal Cause): The harm must be a foreseeable result of the defendant's conduct.

Intervening Actions: Can break the chain of causation if they are unforeseeable and supersede the defendant's conduct as the cause of the harm.

E. Justification and Excuse

Justification: The defendant's conduct, while technically criminal, is justified under the circumstances.

Self-Defense: Using force to protect oneself from imminent unlawful force.

Reasonable Belief: The defendant must reasonably believe that force is necessary.

Proportionality: The force used must be proportional to the threat faced.

Duty to Retreat: In some jurisdictions, a duty to retreat before using deadly force, unless in one's own home.

Defense of Others: Using force to protect another person from imminent unlawful force. Similar requirements to self-defense.

Defense of Property: Using force to protect one's property. Generally, deadly force is not allowed.

Necessity: Choosing to commit a crime to prevent a greater harm.

Reasonable Belief: Defendant must reasonably believe that their conduct is necessary to prevent a greater harm.

Not at Fault: Defendant must not be at fault in creating the situation that required the necessity.

Excuse: The defendant is not morally blameworthy for their conduct.

Duress: Being forced to commit a crime under threat of death or serious bodily injury.

Imminent Threat: The threat must be imminent.

No Escape: There must be no reasonable opportunity to escape.

Not Applicable to Murder: Duress is not a defense to murder.

Entrapment: Induced by law enforcement to commit a crime they were not predisposed to commit.

Inducement: Government must induce the defendant to commit the crime.

Predisposition: Defendant must not be predisposed to commit the crime.

F. Jurisdiction

Jurisdiction is the power of a court to hear a case.

Subject Matter Jurisdiction: The court must have the power to hear the type of case.

Personal Jurisdiction: The court must have power over the defendant.

Venue: The case must be brought in the proper geographic location.

V. Constitutional Protection of Accused Persons

A. Arrest, Search and Seizure

Fourth Amendment Protection: Protects against unreasonable searches and seizures. Evidence obtained in violation of the Fourth Amendment is excluded from trial.

Government Conduct: The Fourth Amendment only applies to government actors, not private citizens.

Search: A government intrusion into a place where a person has a reasonable expectation of privacy.

Seizure: A meaningful interference with a person's possessory interest in property or liberty.

Warrant Requirement: Generally, a warrant is required for a search or seizure to be reasonable.

Probable Cause: A warrant must be supported by probable cause, meaning there is a fair probability that contraband or evidence of a crime will be found in the place to be searched.

Neutral and Detached Magistrate: A warrant must be issued by a neutral and detached magistrate.

Particularity: A warrant must describe with particularity the place to be searched and the things to be seized.

Exceptions to the Warrant Requirement:

Exigent Circumstances: A warrantless search is allowed if there is an immediate danger to life or property, or a risk of evidence being destroyed.

Search Incident to Lawful Arrest: A warrantless search of a person and the area within their immediate control is allowed during a lawful arrest.

Consent: A warrantless search is allowed if the person with authority over the place to be searched consents.

Plain View: A warrantless seizure is allowed if the officer is lawfully present in a place and the contraband or evidence is in plain view.

Automobile Exception: A warrantless search of a vehicle is allowed if there is probable cause to believe it contains contraband or evidence.

Inventory Search: A warrantless search of an impounded vehicle is allowed for inventory purposes.

Stop and Frisk (Terry Stop): A brief investigatory detention and pat-down for weapons is allowed if there is reasonable suspicion of criminal activity.

Border Searches: Warrantless searches are allowed at borders.

B. Confessions and the Privilege Against Self-Incrimination

Fifth Amendment Privilege: Protects against compelled self-incrimination.

Testimonial Evidence: Only applies to testimonial evidence, not physical evidence.

Miranda Rights: Before custodial interrogation, suspects must be informed of their right to remain silent, their right to counsel, and that anything they say can be used against them.

Custody: A person is in custody if they are not free to leave.

Interrogation: Questioning or any words or actions by police that are reasonably likely to elicit an incriminating response.

Waiver: A suspect can waive their Miranda rights, but the waiver must be knowing, intelligent, and voluntary.

Invocation: A suspect can invoke their right to remain silent or their right to counsel. The invocation must be clear and unequivocal.

Exclusionary Rule: Confessions obtained in violation of the Fifth Amendment are excluded from trial.

Impeachment Exception: Confessions obtained in violation of Miranda can be used for impeachment purposes.

Fruit of the Poisonous Tree: Evidence derived from a coerced confession is also inadmissible.

Immunity: The government can compel testimony by granting immunity.

Use Immunity: Testimony cannot be used against the witness.

Transactional Immunity: Witness cannot be prosecuted for any crimes related to the transaction about which they testify.

C. Lineups and Other Forms of Identification

Sixth Amendment Right to Counsel: Applies to post-indictment lineups and show-ups.

Due Process: Applies to all identification procedures.

Reliability: The identification procedure must be reliable.

Suggestiveness: Suggestive procedures that create a substantial likelihood of misidentification violate due process.

D. Right to Counsel

Sixth Amendment Right to Counsel: Guarantees the right to counsel at all critical stages of a criminal proceeding.

Critical Stages: Include custodial interrogations, post-indictment lineups, preliminary hearings, arraignments, felony trials, sentencing, and appeals as a matter of right.

Waiver: The right to counsel can be waived, but the waiver must be knowing, intelligent, and voluntary.

Effective Assistance of Counsel: The Sixth Amendment guarantees the right to effective assistance of counsel.

Strickland Test: To prove ineffective assistance of counsel, the defendant must show:

Counsel's performance was deficient.

The deficient performance prejudiced the defense.

E. Fair Trial and Guilty Pleas

Fair Trial: The Sixth Amendment guarantees the right to a fair trial.

Impartial Jury: The right to a trial by an impartial jury.

Jury Selection: Jurors must be selected from a fair cross-section of the community.

Challenges for Cause: Jurors can be struck for cause if they are biased or otherwise unqualified.

Peremptory Challenges: Jurors can be struck without cause, but not based on race, ethnicity, or gender.

Speedy Trial: The right to a speedy trial.

Public Trial: The right to a public trial.

Confrontation Clause: The right to confront witnesses against the defendant.

Compulsory Process: The right to compel witnesses to testify for the defendant.

Proof Beyond a Reasonable Doubt: The prosecution must prove all elements of the crime beyond a reasonable doubt.

Guilty Pleas: A defendant can waive their right to a trial and plead guilty.

Knowing, Intelligent, and Voluntary: The plea must be knowing, intelligent, and voluntary.

Plea Colloquy: The judge must personally ensure the defendant understands the nature of the charges, the rights they are waiving, and the consequences of the plea.

Factual Basis: There must be a factual basis for the plea.

Withdrawal of Plea: A defendant may be able to withdraw a guilty plea under certain circumstances.

F. Double Jeopardy

Fifth Amendment Protection: Protects against being tried twice for the same offense.

Attachment of Jeopardy: Jeopardy attaches when the jury is sworn in or, in a bench trial, when the first witness is sworn in.

Same Offense: The Blockburger test is used to determine if two offenses are the same for double jeopardy purposes.

Exceptions: Retrial is allowed if:

The first trial ended in a hung jury.

The defendant successfully appealed the conviction.

The defendant breached a plea agreement.

Dual Sovereignty Doctrine: A defendant can be tried for the same offense by both the state and federal governments.

G. Cruel and Unusual Punishment

Eighth Amendment Protection: Prohibits cruel and unusual punishment.

Proportionality: The punishment must be proportionate to the crime.

Death Penalty: Special considerations apply to the death penalty, including the requirement of individualized sentencing and consideration of mitigating factors.

H. Burdens of Proof and Persuasion

Burden of Proof: The obligation to prove a fact.

Prosecution's Burden: The prosecution has the burden of proving all elements of the crime beyond a reasonable doubt.

Defendant's Burden: The defendant may have the burden of proving an affirmative defense.

Burden of Persuasion: The obligation to convince the fact finder.

I. Appeal and Error

Preservation of Error: To appeal an issue, the defendant must have preserved the error by objecting at trial.

Plain Error: An error that affects the defendant's substantial rights may be reviewed even if not preserved.

Harmless Error: An error that does not affect the outcome of the trial will not result in reversal.

Standards of Review: Appellate courts apply different standards of review depending on the type of error.