Criminal Law Issue Spotter

Kwok Tse

11/16/14

Common Law

General Intent: Mental element attached to the act which constitutes the offense (the act of doing something with the mindset on just doing that specific action not other intent). Only requires that you intend to perform the act.

Buzz word: “maliciously,” “unlawfully” “feloniously” “knowingly” or “recklessly.”
Ex. battery as “intentionally and harmful physical contact with another person.” (general intent)
Ex. If Jill punches Jack in the eye after Jack calls her and “idiot,” she has probably commited battery.
All the prosecution has to show is that Jill intentionally punched Jack. The prosecutor doesn’t need to show that Jill intended to hurt Jack—the law assumes as much.

Specific Intent: defined specifically as a separate element of the offense beyond the mere doing of the act. Added mental element (mental process) makes the crime more serious. (Commit the act + intended a result)

Buzz word: with the “with intent to..”, “knowing that…”, “purposefully” or “intentionally”
Ex. Burglary: “whoever breaks and enters into the dwelling house of another with the intent to commit a felony therein.” (specific).
Ex. Larceny: “whoever takes and carries away the personal property of another with the intent to permanently deprive the owner thereof.” (Specific).
“Whoever receives stolen property knowing it to be stolen” (Specific)

MPC § 2.02

Purposefully (worst): his conscious object to engage in conduct of that nature or to cause such a result; and if the element involves the attendant circumstances, he is aware of the existence of such circumstances or he believes or hopes they exist.
Knowingly: he is aware that his conduct if of that nature or that such circumstances exist and if the element involves a result of his conduct, he is aware that it is practically certain that his conduct will cause such a result.
Recklessly: (aware) gross deviation and consciously disregards a substantial and unjustifiable risk that the material element exists or will result from his conduct.
Negligently: (unaware) gross deviation and failure to perceive the risk that the reasonable person would have realized.

Difference between mensrea of Recklessness and negligence:

Recklessness marks the actor as subjectively blameworthy: actor chooses to disregard a known risk
Negligence does not describe a subjective state of mind but rather a failure to perceive the risk.
Punished in a lesser degree

Rebutting Mens Rea

Issue: Whether X had Mensrea to commit the crime?

Rule: Define Mens Rea. Guilty state of mind with the intent to commit the crime.

X will argue to the court that he did not have a Mens Rea requirement for the Crime and in order to do so (to rebut mensrea) he needs to show proof of either:

1. Mistake of fact/law

2. Intoxication

3. Diminished capacity

X will argue Mistake of Fact. (Do jurisdictional analysis for both common law and MPC)
Common Law (General and Specific) = define the rules
MPC (purposefully, knowingly, recklessly, negligently)= define all of the rules

Analysis: For Common law this would be general intent because there is an added phrase which modified the statute to make it more serious. Added phrase such as knowingly in the statute would give rise for a specific intent.

General Intent Crime: Strict liability in a mensrea crime is irrelevant. Mistake of (argue the alternative)
MPC: Every element of the Crimedid not have intent. (ex. Sell to a minor).

Ex. X had the intent to sell the guns, but X is going to argue that he did not know he was a minor.

Mistake of fact would not work due to X seeing Rod not being able to handled a gun a couple of time. This is bad news. He should have taken the gun away from Rod those couple of times he saw that.

Voluntary Act

Issue: Whether the act was voluntary?

Rule:Act must be voluntary, or at least the product of a voluntary act to be a crime

Without an exercise of will, there is no choice to act and thus the underlying reason for the act requirement is missing.

Cannot punish someone without proof of some act

Punishing one’s status or propensities is beyond the state’s constitutional authority

A person can be punished for what they do, but not for what they are

Case Martin: Appellant was arrested at his home and then brought onto the highway where he allegedly committed the drunken acts.

Issue: Whether the trial court erred in finding Martin guilty by stating that public drunkenness is a public offense when the person is in that public place involuntarily./ Yes

Reasoning: because his arresting officers forcibly brought Martin to the highway, he was not voluntarily in a public place. No voluntary act= no intent to commit the crime= not guilty.

Status Crime

Issue:

Rule: The law may not punish the actor for who he is, but only for what he does.

Case Robinson: Robinson was arrested in LA after police officers encountered him, observed track marks, and heard him admit to occasional use of narcotics.

Issue: Whether the trial court erred in finding Robinson guilty by applying the questionably unconstitutional California statute, which makes it a criminal offense “to be addicted to the use of narcotics.”/ Yes

Reasoning: The statute states that an addict may be arrested regardless of whether that person has been continuously guilty of the offense or whether he has ever used or possessed any narcotics within the state, and whether he has been guilty of any antisocial behavior there. The court likens narcotic addiction to an illness, which may be contracted innocently or involuntarily. A state law which imprisons a person thus afflicted as a criminal, even though he has never touched any narcotic drug within the state or been guilty of any irregular behavior there, inflicts cruel and unusual punishment in violation of the 14th amendment

*That portion of the statute referring to the use of narcotics is based upon the act of using. The portion referring to addiction is based upon a condition or status.

Case: Powell:Facts: The defendant was arrested and charged with being found in a state of intoxication in a public place.

Issue: (1) Does chronic alcoholism qualify as a “disease” such that it is a defense to the charge of public intoxication? (2)Is the assessment of a criminal penalty upon an individual for being intoxicated in a public place cruel and unusual punishment under the Eighth Amendment?/ No

Reason:The defendant’s public intoxication was a direct violation of a Texas statute. Counsel argued that the defendant was “afflicted with the disease of alcoholism” and was therefore drunk in a public place involuntarily and therefore to punish him would be cruel and unusual. The state of Texas did not seek to punish Powell’s status as an alcoholic and instead aims to punish him for a criminal sanction for public behavior, which may create substantial health and safety hazards both for the appellant and for members of the public.

Rule:Can’t punish the disease and cant punish a person who suffers from the disease if he submits to an involuntary symptom of the disease. But going to a public place is not a symptom of the disease, it is a voluntary act.

Legality

Issue: Whether there must be a law in existence defining the actor’s conduct as a crime?

A law must be in existence defining Δ’s conduct as a crime

It is not necessary that an actor have notice of a criminal statute in the sense that he or she must know of the existence of the law

It is that he or she COULD have known that the conduct was criminal

Ex post facto clause: legislature cannot enact a law making something a crime and then apply it retroactively

Only applies to legislatures and not to court decisions retroactively expanding the criminal law

Due Process clause: expresses the principal of fair notice

Only when the decision was unexpected or indefensible does it deprive a person of fair notice is applied retroactively

Actus Rea Vague statute

Issue: Whether the statute (set out in the exam) is unconstitutionally vague?

Rules to vagueness: A statute is vague if “person of common intelligence must necessarily guess at its meaning and differ as to its application.”
There are two principal reasons why a vague law is void.
1st: It fails to provide adequate notice to a potential violator.
If he cannot figure out what the statue means, he does not know the conduct it makes criminal.
2nd: If a vague law provides no standards for law enforcement official and can lead to arbitrary or discriminatory application.
The language (insert language) is vague under the above standard. How can someone know this language within the statute? (reference Chicago gang ordinance case).
Unclear language also vests too much discretion in law enforcement agents, giving rise to the danger of arbitrary or discriminatory enforcement
3rd: Vague statute may be unconstitutional because it chills first amendment freedoms
It describes language that would be vague to a reasonable person to the point that they would have to guess as to its meaning and differ in its application.
If It is not necessary that an actor have notice of a criminal statute in the sense that he or she must know of the existence of the law, It is that he or she COULD have known that the conduct was criminal

Omission

Issue: Whether Δ had a legal duty to act?
Rule:A failure to act can be punished but only where the defendant had a legal duty to act called omission. Things that give rise to legal duty:

Statute

K

Status relationship where one would be expected to protect the other from harm (husband/wife, parent/child).

Where one has voluntarily assumed the care of another and so secluded the helpless person as to prevent others from rendering aid.

Creation of risk gives rise to a legal duty. (You would move to a causation“but for” and legal cause test if it’s homicide).
Look at forseeability (proximate cause) result and the legal duty to act:
Case: Levesque-“it was the failure to act, to at least report the fire that could have been the legal cause of the firefighters’ death.

Intoxication

Issue: Whether Δ can be guilty if she lacked the ability to form mensrea due to intoxication.

Common Law:
Voluntary intoxication (purposefully/knowingly) is a defense for specific intent crime but not for general intent crimes.
Involuntary intoxication is a defense for general intent crime but not for specific intent crimes. (because all acts have to be voluntary)!!!
MPC: §2.08: Where recklessness establishes an element of the offense, if the actor, due to self induced intoxication is unaware of a risk of which he would have been had he been sober, such unawareness is immaterial –not a defense.
Note: Intoxication is only a defense for specific and not for general and it’s only the common law.

Strict liability
(No Mens Rea needed only need the act)

Issue: Whether it was legislative intent to exclude knowledge of mensrea from the crime?

Rule: Strict liability allows government to punish public welfare without the need of mensrea.

Note strict liability factors only need one factor to outweigh the rest)
Strict liability are marketed by certain characteristic (more of the characteristics present, more likely legislature intended the law to be strict liability)

Regulatory in nature: do this to protect a broad class of person who are unable to protect themselves from some danger.
Penalty is relatively small and conviction carries little stigma. : the greater the penalty and stigma, the less likely there was an intent to create a SL.
Does not sweep within its coverage a “broad range of apparently innocent conduct”:strict liability is designed to punish those who know they are violating the law but it is understood that it also can be applied to the innocent.

Analysis:

Argue for regulatory in nature/ counter argue
Argue for stigma/fine and create a counter for stigma and fine. (combine punishment is not reasonable would be a counter argument)
Note: You only need to create a counter argument for one of them* do not have to counter argue all of this
No MPC only Common Law

Possession (question of control)

Issue: Whether the evidence is sufficient to support the conclusion that the actor possessed the item?

Rule: Possession is made a crime when the thing possessed is dangerous, harmful, or incriminating

Must flow from the unlawful purpose as on overt expression of intent
May be actual or constructive
Actualpossession: actual physical dominion and control over the item (ex. Having it in one’s hand or pockets)
Constructive possession: Involves a situation in which the actor is at some remove from the itemCombines the power + intention to control as the ability to exercise dominion and control coupled with the intent to do so.
Facts to consider:
How close is the actor to the item?
Where did the item come from and how did it get into the actor’s proximity?
Who owns the item?
Did someone else have exclusive control over it at the time?
More than one person can possess an item at the same time

Mistake of law: Mistake which of some fact of the offense

Whether he is privilege to the benefit of mistake

Issue: Whether X lack of awareness is able to rebut mens era?

Whether X lack of awareness of some mistake is a defense to the crime?

Decide whether it was a Mistake of fact or a Mistake of Law on the exam.

Mistake of Fact: mistaken about some fact/aspect of the law. some facts X was mistaken about. i.e. you knew that the law prohibited felons from purchasing firearms (You thought you were not a felon when, in reality, you were)

•Mistake of fact may be used as a defense ONLY when it negates the existence of mensrea.

Must be an honest mistake (specific)

Must also be a Honest and reasonable mistake if applied to a general intent crime

Not a valid defense to strict liability crimes because the existence of mensrea is irrelevant in strict liability crimes

Common Law:Mistake of Fact

General intent: mistake is a defense for general intent (knowingly, unlawfully, feloniously) if it is Honest and Reasonable
Specific intent: mistake would be defense for specific intent (knowing it to have been delivered) even if it were unreasonable (it just has honest)

MPC for Mistake of Fact: No MPC for Mistake of Fact

MPC on Mistake of Law

Mistake of the law: Not aware of the law/scope of the law’s existence. An example would be that you knew you were a felon but you did not know that the law prohibited felons from purchasing a gun.

•May NOT be used as a defense UNLESS:

the statute or other enactment defining the offense is not known to the actor and has not been published or otherwise reasonably made available prior to the conduct alleged or
he acts in reasonable reliance upon an official statement of the law, afterward to be determined to be invalid or erroneous, contained in:

CommonLaw Mistake of Law: You can violate the law by not acting and there is no reasonable probability of notice of your obligation to act.

MPC §2.04 Mistake: Mistake is never a defense under MPC unless:

the statute or other enactment defining the offense is not known to the actor and has not been published or otherwise reasonably made available prior to the conduct alleged or
he acts in reasonable reliance upon an official statement of the law, afterward to be determined to be invalid or erroneous, contained in:

•a statute or other enactment

•a judicial decision, opinion, or judgment

•an administrative order or grant of permission or

•an official interpretation of the public officer or body charged by law with responsibility for the interpretation, administration, or enforcement of the law defining the defense.

Causation

(Only for homicide)Case MAP

Issue: Whether Defendant caused the death of the victim? (Factual cause “but for” and legal cause “proximate.”)

Causation requires us to resolve two questions: cause-in fact and legal cause. Cause in fact is a necessary and preliminary inquiry determined by asking whether, but for the act of the defendant, the victim would into have died at the time he did.(most of the time there is always a “but for”)
What we are looking for in proximate, we are looking for when the intervening cause become a supervening. (id the intervening cause, then analyze whether it is an supervening cause)
The issue of causation after the “but for” depends on legal cause. Many jurisdictions will ask whether the death occurred in the natural and continuous sequence of events. But if some intervening act becomes the immediate cause of death, we ask whether the intervening case was foreseeable.

Common law on legal and proximate causes

“But for” Test: but for D actions, would victim have diedat the time that he did?
Legal cause: Proximate cause ( look for the chain of causation)

Dependent intervening cause: If the acts were reasonably foreseeable therefore D is liable. Did not cut off the chain of causation. (defendant is still the cause of the victim’s death).
Independent intervening causes: the acts were unforeseeable and abnormal and cuts off D liability in a response situation. Defendant conduct merely caused the victim to be in a position to be acted upon by the intervening cause. (the coincidence situation that are unforeseeable is not liable)*** pretty rare
Supervening cause: same as independent has to be abnormal (weird) and unforeseeable to be not liable.(This is when chain of causation is broken)

Mens Rea: Treats mensrea as an independent concept which must also be proven. The intended consequence can never be too remote, even if they do not come about as you originally intended, but instead came about due to intervening causes. (all about the intent and whether he intended kill him). If victim dies of something else, X may still be liable regardless of if that was that was the specific way X wanted the victim to die. X only needed to form the intent to kill or harm victim.
Note: Use Mens Rea to address Homicide issue
(We will have to go to Homicide issue after causation) (whether he intended the person to die)
Note: MPC and common Law is the same Test

MPC on legal and proximate causes