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Criminal Law Outline - Professor Bolitho - Campbell Law - Part 2

By Robert Havelka
Professor Bolitho - Fall 2019

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ii. Kidnapping: Δ…

  1. Knowingly & Willingly
  2. Transports in interstate commerce
  3. A non-consenting person: if it starts w/ non-consensual event it is highly unlikely to be made consensual and stop the kidnapping later (i.e. abducted at gunpoint but later remains)
  4. Who is held for ransom, reward, or otherwise (some other criminal purpose)

iii. Sexual Assault Crimes

  1. CL: carnal knowledge of a woman forcibly against her will
    1. Male Δ; female victim
    2. Force = resistance required;
    3. Spousal immunity
  2. Modern: Gender neutral; no spousal immunity; no resistance requirement;
    1. series of offenses:
      1. forcible sexual assault,
      2. coercive,
      3. nonconsensual,
      4. SA of minor,
      5. Statutory rape
        1. Age-Based (below age of consent; 16/18)
        2. Position-Based (teacher-student; coach-athlete, etc)
        3. Consent invalid, minor cannot consent
        4. Knowledge of minor status unnecessary (majority rule)
    2. Sexual Acts: vaginal intercourse, oral sex, anal sex, digital penetration
    3. Sexual Contact: intentional touching of genitalia, buttocks, breasts w/ intent to abuse, humiliate, harass, degrade, arouse (under or over clothing)
    4. Consent
      1. Consent obtained by fraud is invalid
        1. Fraud in Factum: deceived as to the act (putting something somewhere else than where you received permission = no consent)
        2. Fraud in Inducement: deceived as to some other issue (consented to act itself but defrauded as to why = consent)
          1. Exception = medical community
      2. Express consent is fine, but unnecessary (can infer from situation/facts)
      3. Must be voluntarily given
      4. ‘No’ can change to ‘yes’; ‘yes’ can change to ‘no’ (post-penetration withdrawal allowed)
      5. Δ doesn’t need to know there wasn’t consent, knowledge unimportant

iv. Inchoate Crimes – ‘unfinished business’

  1. General Rules
    1. Merger Rule: when an unfinished crime is completed, the two crimes are ‘merged’ into the completed, larger offense
      1. Ex) solicitation to murder → attempted murder or → murder
      2. Never includes conspiracy, it is always a separate offense
    2. Abandonment/Withdrawal: cannot ever ‘abandon’ or ‘withdraw’ from a crime
      1. Exception: can withdraw from a conspiracy, explicitly, and not be held liable for future Pinkerton liability stuff (i.e. tell them you’re out and not held responsible for bank robbery, just the original conspiracy)
    3. Aiding & Abetting/Accomplice Liability: a theory of criminal responsibility (not a separate crime) where accomplice is charged as principal
      1. Δ assisted or encouraged another in the commission of a crime before or during commission
        1. Even verbal encouragement in a fight is enough
      2. Δ had intent to assist or encourage
        1. No accidental/unwitting help to the crime
      3. Crime was actually committed by another (and completed)
      4. NOTE: This is narrower than conspiracy and totally different because:
        1. Not a crime (like conspiracy)
        2. Doesn’t require agreement (like conspiracy)
        3. Crime needs completion (unlike conspiracy)
  2. Attempt (charging the unsuccessful criminal)
    1. Elements
      1. Intent to do ______
      2. Took an overt act to complete ______
    2. Two Types
      1. Complete/Imperfect: Δ did everything in their power to finish but outside forces caused failure (i.e. security guard apprehends Δ who is shooting at teller)
      2. Incomplete: Δ was not able to complete all steps b/c of outside forces (security guard stops robber before he could shoot at teller)
    3. Prep v Perp: preparation is not an attempt, movement towards perpetration is an attempt
      1. Majority: “Substantial Step” rule: would a reasonable person deduce that, based on Δ conduct, he/she intended to commit that crime
  3. Conspiracy: a separate crime based on agreement to commit more
    1. Elements:
      1. Agreement
      2. 2+ people
      3. To commit a criminal offense
    2. Two Types
      1. General – overt act required in furtherance of conspiracy (extra element)
        1. Overt Act: any act that furthers the conspiracy, even a teensy bit
          1. Purpose: give a Δ a window, albeit small one, to exit conspiracy
      2. Specialized – no overt act required, simply is
    3. Unilateral (w/ a government agent only) are illegal. If there is an informant there needs to be 2+ nongovernmental agents involved.
  4. Solicitation: separate crime (like conspiracy) that merges (unlike conspiracy) upon furtherance
    1. Elements
      1. Command, encourage, request another person
      2. To commit a crime
      3. w/ intent that other person commit a crime (no jokes)
      4. Δ’s intent strongly corroborated by acts, etc
    2. Only really charged in sting operations or moments where there is absolutely no other charge available
  5. Accessory after the Fact
    1. Separate crime (not treated as principal!)
    2. “Clean-Up Crew” – no involvement w/ the prep or commission of crime
    3. Must be aware of the crime they are aiding and abetting to
      1. i.e. if someone helped someone escape a crime scene where someone, unbeknownst to them, was murdered then they can be charged for helping escape but not for helping get away with murder, specifically

v. Burglary

  1. Breaking: trespassory event w/ the creation of an opening (however slight)
    1. Constructive opening: access through fraud or deception
  2. Entering: any part of the burglar and/or any object used as an instrument to effectuate an entering
  3. Dwellinghouse of another: anything w/in the curtilage (directly near home) will suffice
  4. At Night (CL requirement = at sunset up to sunrise; no longer modern requirement)
  5. W/ intent to commit felony inside: needs to intend to commit felony when entering

vi. Larceny

  1. Elements
    1. Unauthorized taking (caption i.e. securing control of the item)
    2. Carrying Away (asportation i.e. slight change in position of the item)
    3. Personal property of another
    4. w/ intent to permanently deprive another of the property
  2. Larceny by Trick vs False Pretenses
    1. By Trick: obtain possession of an item
    2. FP: obtain title of the item

vii. Embezzlement

  1. Δ came into possession of property of another lawfully
    1. Usually came into possession through entrustment w/ said property
  2. Then, Δ converts the property to their own use
    1. Bank teller handed money by depositor then later take the money from drawer home

viii. Robbery

  1. Larceny+
    1. By force or fear of immediate force
      1. Can occur during the caption (taking) or the asportation (carrying away)
    2. From person or immediate presence & control
d. Defenses – Come From Bill of Rights (Federal)

i. Types

  1. Failure of Proof: not enough evidence to convict (issue of ID of Δ, for example)
    1. Mistake of fact: i.e. negates mens rea & must be honest and reliable
    2. Alibi Δ (SODDI)
      1. Written Notice Required
        1. Specific Places where Δ claims to have been
        2. Names and addresses of witnesses Δ intends to rely on for alibi
  2. Offense Modification: asking for lesser offense
  3. Justifications (Affirmative so burden of proof on Δ): focuses on the act – i.e. the act is morally acceptable
    1. Self-Defense
      1. Elements
        1. Actual or apparent threat w/ unlawful + immediate force (cannot be in the future or a discontinued threat)
        2. Actually & reasonably believe (objective & subjective belief)
        3. Δ’s response was necessary (could Δ have other options)
          1. Stand Your Ground (Majority) vs Duty to Retreat (Minority)
            1. Castle Doctrine: in Duty to Retreat jurisdictions, home=sacred=right to Δ oneself
          2. First Aggressor Rule: First aggressor disallowed selfΔ
            1. Exception1: escalation of force by other party
            2. Exception2: First Aggressor retreats
        4. Δ response was proportional (deadly-deadly force; non-non)
    2. Imperfect Self-Defense
      1. How: subjectively reasonable; objectively unreasonable
      2. Result: Reduction in offense ; reduction in penalty
    3. Defense of others
      1. CL: first only family, then ‘alter ego’ approach (take on that person’s ego)
      2. Modern: Reasonableness approach
        1. Force was reasonable
        2. Acting on behalf of person you reasonably believe in danger (subjective and objective)
        3. Used the force that other person would have been entitled to
  4. Excuses (Affirmative): focuses on the actor – i.e. the actor is morally unblameworthy
    1. Public Authority Δ (affirmative): knowingly acted in violation of criminal law but did so based on reasonable reliance of authorization by government official
      1. Usually covers informants
      2. Notice required in form of:
        1. Law enforcement agency or intelligence agency
        2. Member of agency who supervised Δ
        3. Time during which Δ claims to have acted w/ public authority
      3. Must prove:
        1. Official had given instructions
        2. Official had authority to do so
        3. Δ relied on that authority to carry out
    2. Duress (affirmative)
      1. Threat of imminent death or serious bodily harm forced Δ to commit crime
      2. No reasonable legal alternative
      3. Δ not responsible for creating the threat
    3. Necessity: (affirmative) rare Δ. Δ must show a choice between two evils and choosing lesser
    4. Insanity: (affirmative) legal Δ that relies on M’Naghten Rule. Usually only applies to Schizophrenia, Bipolar Disorder, but it’s evolving. Doesn’t mean mental illness
      1. M’Naghten Rule:
        1. At time of crime, Δ suffered from mental disease/defect
        2. That rendered Δ unable to know what he was doing or
        3. If Δ did know was unable to know wrongfulness of his actions
  5. Nonexculpatory Public Policy Defenses: Δ is guilty but shouldn’t be convicted (i.e. entrapment)
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