Common Law Felonies (Ms. R. M. Lamb)

Common Law Felonies (Ms. R. M. Lamb)
Murder-unlawful killing of a human being with malice aforethought, expressed or implied
Unlawful-neither justifiable nor excusable (§ VI,f)
Killing-conduct and result (“kill word”)
Express malice
Intent to kill person killed
Intent to kill another person (transferred intent)
Implied Malice
Intent to inflict serious bodily harm
Indifference to result
Felony murder-death in the course of committing another felony
Grading
1st degree-“premeditation and deliberation”
2nd degree-without “p & d”
Sodomy-crime against nature, that is carnal knowledgeby any man or woman with any brute animal or per anum by a man with any other man or with a woman
Consensual sodomy now constitutionally protected by Lawrence v. Texas, 539 U.S. 558 (2003).
Rape-unlawful carnal knowledge of a woman by force and without her consent
Marital rape not in category, qualifies as aggravated assault
Carnal knowledge requires penetration, emission is split issue
Force & consent:
Resistance to the utmost (no longer applicable)
No consent if insane, idiotic, or insensible
Intimidation can compel
Fraud in factum only, not inducement
Evidence
Corroboration (no longer applicable)
Recent complaint (no longer applicable)
Cross-examination limited by 6th Amendment, Rape Shield laws
Manslaughter-unlawful killing of a human being without malice aforethought
Voluntary-intent to kill in passion or heat of blood, but:
Mere words are insufficient provocation
Mere trespass is insufficient provocation
Heat of blood cannot have cooled or had time to cool
Involuntary
Intent to inflict mere bodily harm
Misdemeanor-manslaughter
Larceny
Simple-taking and carrying away of the personal goods of another of any value from any place, with an intent to steal
Compound (Robbery)-taking and carrying way the personal goods of another of any value from his person or in his presence, by violence of by putting him in fear
Arson-willful and malicious burning of the dwelling house of another, either by night or by day
Neither negligent nor privileged
Mayhem-maliciously depriving another of the use of such of his members as may render him the less able in fighting, either to defend himself or be in the King’s army
Burglary-breaking and entering of dwelling house of another by night, with intent to commit a felony.
Modern statutes exclude the nighttime requirement
United States v. Hudson, 11 U.S. (7 Cranch) 32 (1812) abolished application of common law crimes, mandated the existence of a statute for prosecution.
Other Crimes
Specific Intent Crimes (ELFBARF) (MPC lumps these in with theft, generally)
Embezzlement
Larceny
False pretenses
Burglary
Arson
Robbery
Forgery
Inchoate Crimes
Attempt
Solicitation
Conspiracy
Semantics and Statutory Interpretation
Semantics
Meaning
Intentional-Specific SOM (applies only to what I intend), logical universal (applies to all instances of the word)
Literal-word + grammar=plain meaning (SAY)
Locutionary (pass the salt)
Conventional-plain meaning + context=utterance meaning (MEAN)
Illocutionary (Can you pass the salt?)
Personal-read in, unacceptable in principle
Perlocutionary (DO)-consequences of interpretation
Ambiguity
Verbal-multiplicity of definitions
Syntactical-ambiguously oriented modifier
Contextual-internal sources of ambiguity, interaction with another proximal statement
Vagueness-uncertainty of degree
Generality-multiplicity of reference
Statutory Interpretation
Initial Questions
Who is involved?
What happened, factually and procedurally?
What do people want, practically and legally?
What line of reasoning gets each party what they want?
Methodology
Text itself-hardcore meaning and logical extensions
Context
Case history
Problems or issues with text
Values (autonomy, liberty, truth, fair trial, LE, privacy, etc.)
Identification, relative rank, and impact of choice
Types of Thinking: Reasoning About Rules
Authority (precedent)
Institutional (who should decide-court mandate or defer to legislature)
Rightness-deontological
Consequential-teleological
Elemental Analysis-rooted in statutory language
Who-class of persons (person, whoever, etc?)
Conduct-verb, may be a kill word
Surrounding Circumstances
Liability-What makes the act wrong
Jurisdiction-Municipal/County/State/Federal
Grading-Degree
Venue-Where prosecuted
Law-As determined by law
Result-Consequence of conduct, may be kill word
Apply SOM, if any
Constitution
4th Amendment (1791)-“Search and Seizure”
“The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated, and* no Warrants shall be issued, but upon probable cause, supported by Oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized”
Governs only conduct of governmental agents, and applies to the states through the 14th Amendment (Mapp).
Egbert Benson’s rejected substitution of “and no warrant shall issue” for “by warrants issuing” (Madison) inserted by committee.
* “, and”-conjunctive or disjunctive?
History
Arose out of two separate problems-arrest and search per se
Arrest-protect citizen-constables from tort liability
Search per se-protect property
Abatement of tools of religious, political, and economic suppression
Designed to end writs of assistance and general warrants
Combination of two issues is intended to place a magistrate between the people and the government both to protect privacy and legitimate lawful searches
Rule established pre-police, creating tension not only between issues but between history and application
Rooted in liberty, but of whom? From whom? To do what? And with what consequences to whom?
Each theory of liberty (English concrete, French abstraction, and American pragmatism) tends to forget that liberty of the King’s subjects presupposes the establishment of the King’s peace.
The balance in a 4th Amendment inquiry is between individual privacy and legitimate governmental interests
Imposition upon liberty took the form of search & seizure, which required probable cause (pc).
New category of stop and frisk, which imposed a mere reasonability standard, was introduced through Terry v. Ohio, 392 U.S. 1 (1968).
Reasonability of suspicion that suspect was armed warranted stop and frisk for a weapon despite lack of pc (limited frisk).
Reasonability of suspicion dependent upon circumstances and officer’s experience.
Focuses on reasonableness clause, not warrant clause (pc).
Reasonability further augmented in Adams v. Williams, 407 U.S. 143 (1972), wherein a reliable informant stated a suspect had a gun. Officer reached for gun on informant’s word only. Lawful and reasonable as a protective measure and need not be done as an enforcement tactic (concealed weapons laws).
Also focuses solely on reasonableness clause.
Court ignored voluntary/involuntary element of search
Balance of LE and privacy, broadened LE interests from Terry. Rehnquist decision under Burger expanded a Warren decision.
At arrest, a complete search for weapons and evidence on arrestee’s person and in immediate vicinity is permitted, not limited to Terry frisk.
Objects in plain view can be seized without a warrant.
Olmstead v. United States, 277 U.S. 438 (1928)-Literal rendering of 4th Amendment
No S&S as 1) no trespass and 2) no material object seized
Strong dissents from Brandeis and Holmes have influence now
Maxim of unclean hands as a rule of inaction
Katz v. United States, 389 U.S. 347 (1967)
Overrules Olmstead and institutes expectation of privacy rule.
4th Amendment does not create protected places (home) but protects a person from invasion whether in public or private.
4th Amendment not a blanket right to privacy
Mandate established for antecedent justification for surveillance
Warrantless searches must still meet probable cause requirement as though a warrant was issued (Wong Sun).
Illegally seized evidence inadmissible as “fruit of the poisonous tree.” See Wong Sun.
14th Amendment (1868)-“due process” and “equal protection”
Section 1: “No State shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States; nor shall any State deprive any person of life, liberty, or property, without due process of law; nor deny to any person within its jurisdiction the equal protection of the laws.”
Manson v. Brathwaite, 432 U.S. 98 (1977)
Burden of proof to show illegality of identification procedures placed on defendant (shift from Wade).
Five factors for evaluating identification procedures, plus Marshall’s 6th factor: Corruptive Effect of the process itself. This is a “totality of the circumstances” test.
Opportunity of the witness to view the criminal at the time of the crime
Witness’ degree of attention
Accuracy of the prior description of the criminal
Level of certainty demonstrated at the confrontation
Lapse between crime and confrontation
5th Amendment (1791)-Self-incrimination
“nor shall any person be compelled in any criminal case to be a witness against himself, nor be deprived of life, liberty, or property, without due process of law”
“in any criminal case” oscillates between words of illustration and words of limitation, no consistent treatment.
History
Evolved as response to ecclesiastical courts and common law self-incrimination
Developed through William of Normandy’s conquest
Ecclesiastical courts used accusatory process, king’s courts used inquisitorial process (trial by ordeal, oath, or battle)
Retreat of church from ancient ordeal practices lead to trial by jury.
Consent had to be “obtained” for jury trial
Acts as a wild card in Constitutional analysis in letting the guilty go free with little or no social gain.
Early tests for compliance in pre-trial encounters used totality of circumstances and voluntariness as guiding principles. Amorphous nature led to limited application. Focus here is on due process element and not self-incrim.
Privilege is not enjoyed by corporations (documentation, Fisher)
Right not to testify provides a corollary right to testify, but does not provide a right to testify falsely (Nix).
Miranda v. Arizona, 384 U.S. 436 (1966)
Expands right against self-incrim. to custodial interrogation
Abolishes case-by-case approach and establishes rules for all subsequent interrogations
Applies to any significant deprivation of freedom, but does not apply to general questions at a crime scene or to voluntary statements
Rights advisory must precede any custodial interrogations
Right to silence
Admissibility of post-warning statements
Right to counsel during interrogation
Provision of counsel for indigents
Privilege can be waived, but remains available
Heavy burden on State to prove waiver
Breaks in interrogation require new assertion of rights
Exercise of privilege not prejudicial
Enumerated rights are not constitutionally protected, but serve to protect 5th Amendment rights, barring a better process.
Decision focuses on pressures of custodial encounters creating a compelling environment.
Miranda applies to criminal proceedings pertaining to guilt or punishment only, and establishes deterrent mechanism through evidence exclusion.
Pleading and Compulsion: North Carolina v. Alford, 400 U.S. 25 (1970)
Guilty pleas made solely to avoid death penalty are not considered compelled under the 5th Amendment.
Test for a plea is whether a voluntary and intelligent choice is present
No due process right (5th or 14th) to have a plea accepted by the court
No due process right to jury trial in spite of plea
6th Amendment (1791)-Right to counsel
“In all criminal prosecutions, the accused shall enjoy the right…to have the Assistance of Counsel for his defence.”
History
Originally only provided right to those who could afford an attorney to have one with them at trial. Has since been significantly broadened.
Escobedo v. State of Illinois, 378 U.S. 478 (1964)
Confined to its facts by Miranda, do not reference
Established 6th Amendment shield to interrogation once counsel has been requested, even in a pre-trial encounter. Very limited in its application even before confinement
United States v. Wade, 388 U.S. 218 (1967)
In-court identification tainted by improper pre-trial/post-indictment line-up, once again invoking “fruit of the poisonous tree” idea.
Counsel should be present at line-up in order to protect right to counsel and confrontation. Suspect not likely to identify prejudicial elements of line-up. Does not apply to fingerprinting, taking of blood, or evidentiary sampling as general knowledge of these processes allows for self-determination of prejudice.
See five factors employed in Manson, they apply here.
Burden for showing propriety of procedure placed on state (reversed in Manson)
Role of Counsel
Strickland v. Washington, 466 U.S. 668 (1984)
Two-pronged test for efficacy of counsel
Incompetence
Deficiency of such a scale that counsel cannot be seen as fulfilling 6th Amendment role
Objective standard of reasonableness, “outside the range of professionally competent assistance”
“reasonable under the circumstances” trumps appeal to any particular set of standards, and significant deference should be given to judgment of counsel
Hindsight is not a factor, but rather the inquiry must put itself in attorney’s position at time of decision.
Prejudice
Inconsistent precedent (automatically granted if incompetence shown vs. heavy burden on defendant)
Test involves reliance upon outcome of the proceeding
Requires a reasonable probability that, but for the error in question, the result of the proceeding would have been different
Not solely outcome determinative, but fairness of result must be considered as well.
Nix v. Whiteside, 475 U.S. 157 (1986)
Cert granted to evaluate 6th Amendment implications of counsel refusing to cooperate with presentation of knowingly perjurious testimony
Breach of ethical standard alone does not justify breach of 6th Amendment right to counsel
An attorney’s duty to advocate the defendant’s cause is “limited to legitimate, lawful conduct compatible with the very nature of a trial as a search for truth. Although counsel must take all reasonable lawful means to attain the objectives of the client, counsel is precluded from taking steps or in any way assisting the client in presenting false evidence or otherwise violating the law.”
Attorney must attempt to dissuade a client from perjury when such an intention is announced.
Wong Sun and Suppression
Wong Sun v. United States, 371 U.S. 471 (1963)
“fruit of the poisonous tree” exclusionary principles at work (on a 4th Amendment basis)
“Whether, granting establishment of the primary illegality, the evidence to which instant objection is made has been come at by exploitation of that illegality or instead by means sufficiently distinguishable to be purged of the primary taint.”
One can only reference his own personal rights when seeking exclusion of potentially tainted evidence. Evidence illegally secured from one person will be excluded for that person, but if it implicates another that other person cannot avail himself of the exclusion since his own rights were not infringed. An intervening event that breaks the chain of illegality purges the taint (attenuation)
Suppression
“Fruit of the poisonous tree” is applied to both 4th and 6th Amendment violations (Wong Sun and Wade, respectively).
Look to Hale for 5th Amendment suppression
See suppression drill in handout no. 3.
Criminal Justice Theory
Ideology of Criminal Justice
Traditional-Just deserts; people are moral, knowing and free. Balance of good/evil
Deontological; Kant
Classical-Deterrence; people are rational, knowing and free. Balance of benefit/burden
Utilitarian approach; Bentham and Mill
Modern-Incapacitation/rehabilitation; people are determined (psych/econ). Balance of desirable/undesirable
Post-Modern-deconstruction of self, no inherent meaning, values are subjective, renders civil liberties unintelligible
Civil Liberty-Minimal governmental involvement
Legality-Rule of Law
Precept
Rule-Layperson’s conception (12 people on a jury, bright line)
Standard-Reasonability
Principle-Presumption of innocence
Doctrine-Consent
Conception-classification (Civil v. Criminal)
Classic Formulation
Paul Feurbach (1775-1833)-Deterrence theory of criminal law (nullapoena sine logo, nullapoena sine criminale, nullumcrimen sine peonalegali; no punishment without law, no punishment without a crime, no crime without a legal punishment)
Jeremy Bentham (1748-1832)-First law is Liberty (do anything you want, except for these enumerated prohibited actions); rather than punishing a deserving culpable citizen (just deserts)
Theory
Statement of principles (as a limitation on centralized power)
Allocation of powers (distribution across legislative, executive, and judicial branches)
Theory of criminal law (deterrence/just deserts/incapacitation)
Roots
Roman-Law as the regulation of procedures and punishments (codified with different rights and responsibilities for citizens, strangers, and the conquered; the conquered had the most individual freedom of action)
Germanic-Law as reason, reason as custom (king was bound by reason)
English Law-Magna Carta (1215); Petition of Right (1608); Glorious Revolution (1650) (ordered liberty)
French-Law originally derived from royalty (royal prosecutors executing royal decrees; French Revolution ultimately displaced the “ancient regime” and distributed power. This is based on the French misunderstanding of the value of “separation of powers” in British law. This misunderstanding became the foundation of our legal system.)
Puritan Law- Massachusetts Bill of Rights (1780); Joining of law and scripture; rule of law, not of man. How has this held up, when we consider the power of judges (individually and as groups behind the bench) in determining the law as opposed to Congress and the President.
Criticism
People as rational (hardly)-Rational person is the basis for neoclassical economic theory (laissez-faire market; golden hand), Marx argues that people are not rational but socioeconomically determined in their behavior, Freud point s to psychological factors undermining rationality of the individual. Theoretically the more educated (rational) a person the more rational and legal their behavior (counterexample provided is the current Wall Street crisis).
Law can be set out clearly & simply (hardly)-There is a strong confusion in law between standards and rules. Requires constant revision and clarification, due to limits of language and changing social circumstances.
A set of common values is available as a basis for the law-Idea has long since been outdated (Industrialization, mass transit, & technology have created a society with a vast array of values).
Consequences
Common Law Crimes-established judicially (1600-1860); power rendered legislative
Strict Construction/Rule of Lenity-When you have an ambiguity that can be read two ways, must read in the light that is most favorable to the defendant.
Rationalized as fair notice, limitation on court, and legislative mandate of Article I (absent in Article III)
Vagueness-Semantic (fuzzy edges of meaning) and legal (ambiguity and vagueness void content)
No ex post facto criminality
No bills of attainder
Presumption of innocence
Actusreus/Mensrea
State of Mind (SOM) in General
Common Law Roots
Model Penal Code (MPC)
Reads in reckless for gap-filling purposes on conduct and liability (§ 2.02 (3))
Applies strict to rest of S.C.
Federal
Old rule is Morissette-scienter
Reads in knowingfor absent SOM on conduct (Bailey), liability (Staples), and result (Gypsum).
Applies strict to grading (X-Citement), venue, and jurisdiction (Feola).
Law is split on strict/knowing (bigamy/income).
Affirmative defenses are implied, burden by preponderance on defendant (Bailey).
States
All over the place, no consistent approach
Applies strict or reckless to grading
Morissettev. United States, 342 U.S. 246 (1952)
Establishes willingness to read in knowingly to fill in statutory SOM gaps (for conduct), rather than strict as requested by state.
Defendant needed to somehow know that his behavior was wrong (sustaining theory of evil mind and evil act). Defendant not held liable for an honest mistake of fact (ownership of scrap metal).
Strict only read in for regulatory crimes with minimal punishments and attached stigma (see Dotterweich).
United States v. Bailey, 444 U.S. 394 (1980)
Federal case, so conduct SOM missing in statute is read in as knowingly (when legislative intent absent or ambiguous)
Recognizes gradation of culpable SOM from MPC (P,K,R,N)
Knowing applied to “escape,” rebutting defendant insistence on specific intent for escape (purpose).
Duress/necessity defenses inapplicable:
Prison conditions not a sufficient threat to justify flight
No justification given for continued absence
United States v. X-Citement Video, Inc., 513 U.S. 64 (1994)
Extends knowing across entire statutory section following it, including subsections, such that one must know that the material in question is a depiction that actually portrays a minor engaged in sexual acts. Denies “natural language” reading in favor of avoiding constitutional ambiguities (criminalizing innocuous behavior; maintaining 1st Amendment integrity) and to abiding the apparent legislative intent (punish those knowingly involved in child pornography trade).
This reading is a response to apparent syntactical ambiguity
Preserves strict liability for face-to-face sexual dealings with a minor, knowing only applied to depictions (only constitutionally mandated SOM).
Mistake
Fact
Regina v. Prince
People v. Olsen
Tyson v. State
Law
Generally not a defense. Justice is meted out as though all citizens are aware of the law. To do otherwise would allow individual understandings of the law to overrule legislative and judicial opinion (See exculpation for more).
Vicarious Liability
White Collar Crime
Horning v. District of Columbia, 254 U.S. 135 (1920)
New York Central & Hudson River R. Co. v. United States, 685 P.2d 52 (Cal. 1984)
United States v. Park, 421 U.S. 658 (1975)
Causation
People v. Warner-Lambert Co., 414 N.E.2d 660 (1980)
Stephenson v. State, 179 N.E. 633 (1932)
Exculpation
Justification
People v. Goetz
State v. Kelly
Excuse
Insanity-Intoxication
Attempt
Complicity
Conspiracy
RICO

Outline-Criminal Law-Blakey-Fall 2009