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This engaging and interactive
textbook will enhance your ability to be successful in academics or a career in criminal justice
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Although it is neither possible nor desirable to discuss every criminal law, this
textbook provides a basic yet thorough overview of the American criminal justice system
...


Approach
Criminal Law uses a two-step process to augment learning, called the appliedapproach
...
It is so much easier to memorize and comprehend the
subject matter when it is simplified this way
...
You must be trained to take the laws you have studied and apply them to various fact
patterns
...
Thus the second step of the applied approach is reviewing
examples of the application of law to facts after dissecting and analyzing each legal concept
...
All the examples are memorable, even quirky,
so they will stick in your mind and be available when you need them the most (like during an exam)
...
The examples clarify the principles for
you, lightening the workload significantly
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Features
Let’s face it, legal textbooks can be dry
...
To hold your attention and keep you alert, Criminal Law employs a variety
of instructional techniques that should engage you from start to finish
...
These enhancements break up the text and also appeal to
various learning styles
...
You can read more cases that way, and cases are like examples—they demonstrate the
application of law to facts
...

Have you ever tried to check your answers to review questions in a textbook, only to find that the correct
answers are nowhere in sight? Criminal Law gives you the answer to every question at the end of each
chapter
...
Contrary to popular belief, this actually improves—and
does not detract from—learning
...
In short, Criminal Lawshould contain everything you need to successfully
complete your course
...


Goals
Although academic success is important, I wrote Criminal Law to increase your awareness as you read
the newspaper (or read the news online), watch television, or discuss legal situations with friends and
colleagues
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My sincere hope is that once you have finished reading Criminal Law, you will become
your own most trusted legal authority
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Elementary notions of fairness enshrined in our constitutional jurisprudence dictate that a person
receive fair notice not only of the conduct that will subject him to punishment but also of the severity of
the penalty that a State may impose
...
v
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1 Introduction
LEARNING OBJECTIVE
1
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This textbook introduces you to our legal system in the United States, the basic elements of a crime, the specific
elements of commonly encountered crimes, and most criminal defenses
...
By the end of the book, you will be comfortable with the legal
framework that governs the careers of criminal justice professionals
...
The most basic definition of a crime is “an act committed
in violation of a law prohibiting it, or omitted in violation of a law ordering it
...
For now, it is important to understand
that criminal act, omission to act, and criminal intent are elements or parts of every crime
...
Generally, the government must enact a criminal lawspecifying a crime
and its elements before it can punish an individual for criminal behavior
...
As you slowly start to build your knowledge and understanding of criminal law, you will
notice some unique characteristics of the United States’ legal system
...
Throughout the United States, each state and the federal
government criminalize different behaviors
...

Laws in a democratic society, unlike laws of nature, are created by people and are founded in religious,
cultural, and historical value systems
...
Thus you will see that different people enact distinct laws that best suit their needs
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intended for use in all states
...
To be accurate and representative, this book focuses
ongeneral principles that many states follow and provides frequent references to specific state laws for
illustrative purposes
...

Laws are not static
...
Evolving value systems
naturally lead to new laws and regulations supporting modern beliefs
...

Try to maintain an open mind when reviewing the different and often contradictory laws set forth in this
book
...
Also try to become comfortable with the gray area, rather
than viewing situations as black or white
...
In general, the criminal law must be enacted before the crime is
committed
...
Check your answer using the answer key at the end of the chapter
...
Read Gonzales v
...
S
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Did the US Supreme Court preserve
Oregon’s right to legalize physician-assisted suicide? The case is available at this
link: http://www
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cornell
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ZS
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1
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Compare criminal law and criminal procedure
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This book focuses on criminal law, but it occasionally touches on issues ofcriminal procedure, so it is important to
differentiate between the two
...
Some common issues in criminal
law are the elements of specific crimes and the elements of various criminal defenses
...
Examples of procedural issues are
individuals’ rights during law enforcement investigation, arrest, filing of charges, trial, and appeal
...
Linda insists that they browse an expensive department store
...
Clara
watches, horrified, but does not say anything, even though a security guard is standing nearby
...


Example of Criminal Procedure Issues
Review the example in Section 1
...
1 "Example of Criminal Law Issues"
...
Linda begins sprinting down the street
...
He hears the store alarm,
sees Linda running, and begins shooting at Linda from the car
...

Linda is treated at the hospital for her injury, and when she is released, Colin arrests her and transports
her to the police station
...
Twelve hours later,
he reenters the room and begins questioning Linda
...
Colin
ignores this request and continues to question Linda about the reason the department store alarm went
off
...
However, this example does illustrate one criminal law issue: did Colin commit a
crime when he shot Linda in the leg? You learn the answer to this question in Chapter 5 "Criminal
Defenses, Part 1"
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1 Criminal Law and Criminal Procedure

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Criminal procedure generally concerns the enforcement of individuals’ rights during the
criminal process
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Check your answers using the answer key at the end of the chapter
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Paul, a law enforcement officer, arrests Barney for creating a disturbance at a subway
station
...

Paul claims that he accidentally grabbed his gun instead of his Taser
...
Read Payton v
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S
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In Payton, the US Supreme Court held a
New York statute unconstitutional under the Fourth Amendment
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justia
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1
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1
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2
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Law can be classified in a variety of ways
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A basic definition of civil law is “the body of law having to do with the private rights of
individuals
...
Criminal

law involves regulations enacted and enforced by government action, while civil law provides a remedy for
individuals who need to enforce private rights against other individuals
...
If individuals need to resolve a civil dispute, this is
called civil litigation, or a civil lawsuit
...


Characteristics of Civil Litigation
It is important to distinguish between civil litigation and criminal prosecution
...
Sometimes, one set of
facts gives way to a civil lawsuit and a criminal prosecution
...


Parties in Civil Litigation
In civil litigation, an injured party sues to receive a court-ordered remedy, such as money, property, or
some sort of performance
...
In a civil litigation matter, the injured party that is suing is called the plaintiff
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Hiring an attorney is one of the many
costs of litigation and should be carefully contemplated before jumping into a lawsuit
...
While the
term plaintiff is always associated with civil litigation, the wrongdoer is called a defendant in both civil
litigation and a criminal prosecution, so this can be confusing
...
A defendant in a civil
litigation matter must hire and pay for an attorney even if that defendant did nothing wrong
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This goal produces interesting results
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The goal is to
make the plaintiff whole, not to punish, so fault is not really an issue
...

A defendant may be liable without fault in two situations
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Usually, this is referred to as strict liability
...
Strict liability and other intent issues are discussed in
detail in Chapter 4 "The Elements of a Crime"
...
The policy of holding a separate entity or individual liable for
the defendant’s action is called vicarious liability
...
If an employee injures a plaintiff while on the job,
theemployer may be liable for the plaintiff’s injuries, whether or not the employer is at fault
...


Example of Respondeat Superior
Chris begins the first day at his new job as a cashier at a local McDonald’s restaurant
...
He loses his grip on the coffee
pot and spills steaming-hot coffee on his customer Geoff’s hand
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McDonald’s is not technically at fault, but it may be liable for Geoff’s
injuries under a theory of respondeat superior
...
If there is no evidence of harm, the plaintiff has no basis for the civil
litigation matter
...
Even if the defendant is at

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Damages
Often the plaintiff sues the defendant for money rather than a different, performance-oriented remedy
...
Several kinds of
damages may be appropriate
...
Punitive damages,
also referred to as exemplary damages, are not designed to compensate the plaintiff but instead focus
on punishing the defendant for causing the injury
...
Statutes and common-law crimes are
discussed in Section 1
...


Parties in a Criminal Prosecution
The government institutes the criminal prosecution, rather than an individual plaintiff
...
If the
defendant commits a state crime, the state government, often called the People of the State pursues the
criminal prosecution
...

The attorney who represents the government controls the criminal prosecution
...


[3]

In a state criminal prosecution, this is generally

[4]

a state prosecutor or a district attorney
...


Applicability of the Constitution in a Criminal Prosecution
The defendant in a criminal prosecution can be represented by a private attorney or afree attorney paid
for by the state or federal government if he or she is unable to afford attorney’s fees and facing
incarceration
...


[6]

This is a significant

difference from a civil litigation matter, where both the plaintiff and the defendant must hire and pay for
their own private attorneys
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prosecution because the Constitution is in effect in any criminal proceeding
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The presence of the Constitution at every phase of a criminal prosecution changes the proceedings
significantly from the civil lawsuit
...


Goal of a Criminal Prosecution
Another substantial difference between civil litigation and criminal prosecution is thegoal
...
In contrast, the goal of a criminal
prosecution is to punish the defendant
...
This is unlike civil litigation, where the ability to pay is a priority
consideration
...
This makes criminal law
justice oriented and very satisfying for most students
...
Thus behavior can be criminal even if it is essentially harmless
...


Examples of Victimless and Harmless Crimes
Steven is angry because his friend Bob broke his skateboard
...
He then begins driving to Bob’s house
...
Steven arrives at Bob’s house and then he
hides in the bushes by the mailbox and waits
...
Bob gets his mail, turns around, and begins walking back to the house
...
Bob does not notice the shots
because of the silencer
...
(2) If
Steven does not have a special permit to own a silencer for his gun, this is probably a crime in most states
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(3) If Steven does not put the gun in a locked container when he transports it, this is probably a crime in
most states
...
(5) Each time Steven
shot at Bob and missed, he probably committed the crime of attempted murder or assault with a deadly
weapon in most states
...

However, common sense dictates that Steven should be punished so he does not commit a criminal act in
the future that mayresult in harm
...
1 Comparison of Criminal Prosecution and Civil Litigation

Feature

Criminal Prosecution

Civil Litigation

Victim

No

Yes
...


Harm

No

Yes
...


Initiator of lawsuit

Federal or state government

Plaintiff

Attorney for the initiator

US Attorney or state prosecutor

Private attorney

Attorney for the defendant Private attorney or public defender Private attorney
Constitutional protections Yes

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No

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2 Crack the Code

LAW AND ETHICS: THE O
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SIMPSON CASE
Two Different Trials—Two Different Results
O
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Simpson was prosecuted criminally and sued civilly for the murder and wrongful death of victims Ron Goldman
and his ex-wife, Nicole Brown Simpson
...

J
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J
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O
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Simpson was
acquitted, or found not guilty, in the criminal trial
...
J
...
O
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Simpson was found liable in the civil lawsuit
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5 million in
compensatory damages to Fred Goldman (Ron Goldman’s father) and his ex-wife Sharon Rufo
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1
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Why do you think the criminal trial of O
...
Simpson took place before the civil trial?
Check your answers to both questions using the answer key at the end of the chapter
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Criminal law regulates individuals’
conduct to protect the public
...
Criminal
prosecution is when the government prosecutes a defendant to punish illegal conduct
...
Check your answers using the answer key at the end of the chapter
...
Jerry, a law enforcement officer, pulls Juanita over for speeding
...

Jerry surreptitiously reaches into his pocket and activates a tape recorder
...
Jerry
sues Juanita for $500 in small claims court for filing the false report
...
Is this a civil litigation matter or a criminal prosecution?
2
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Pearce, 148 N
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App
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In this case, the plaintiff sued the
defendant for criminal conversation
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google
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+Pearce&hl=en&as_sdt=2,5
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[1] Yourdictionary
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yourdictionary
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[2] BMW of North America, Inc
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Gore, 517 U
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559 (1996), accessed February 13,
2010,http://www
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cornell
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ZO
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[3] United States Department of Justice, “United States Attorneys,” accessed February 15,
2010, http://www
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gov/usao
...
com website, accessed February 15,
2010,http://www
...
com/dir968533/United_States
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[5] Alabama v
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S
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law
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edu/supct/html/001214
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html
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S
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§ 3006A, accessed February 15, 2010,http://www
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cornell
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html
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law
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edu/faculty/projects/ftrials/Simpson/Simpsonaccount
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[8] Thomas L
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trutv
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html
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4 Classification of Crimes
LEARNING OBJECTIVES
1
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2
...

3
...

4
...

Crimes can be classified in many ways
...
For example, a
crime like assault, battery, or rape tends to injure another person’s body, so it can be classified as a “crime
against the person
...
” These classifications are basically for
convenience and are not imperative to the study of criminal law
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More important and substantive is the classification of crimes according to the severity of punishment
...
Crimes are generally graded into four categories: felonies, misdemeanors, felonymisdemeanors, and infractions
...
Malum in se crimes, murder, for example, are evil in their nature and are generally graded higher
thanmalum prohibitum crimes, which are regulatory, like a failure to pay income taxes
...
They are either supported by a heinous intent, like the intent to
kill, or accompanied by an extremely serious result, such as loss of life, grievous injury, or destruction of
property
...

Depending on the jurisdiction and the crime, the sentence could be execution, prison time, a fine, or
alternative sentencing such as probation, rehabilitation, and home confinement
...


Misdemeanors
Misdemeanors are less serious than felonies, either because the intent requirement is of a lower level or
because the result is less extreme
...

Note that incarceration for a misdemeanor is in jail rather than prison
...
The restrictive nature of the confinement also differs between jail and prison
...


Felony-Misdemeanors
Felony-misdemeanors are crimes that the government can prosecute and punish aseither a felony or a
misdemeanor, depending on the particular circumstances accompanying the offense
...


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Infractions are
generally punishable by a fine or alternative sentencing such as traffic school
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3 Diagram of Grading

KEY TAKEAWAYS


Grading is based on the severity of punishment
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

Malum in se crimes are evil in their nature, like murder
...



Felonies are graded the highest
...
Punishment options for misdemeanors include the
following:

o
o

Fines

o


Jail time of one year or less per misdemeanor

Alternative sentencing such as probation, rehabilitation, and community service

Felony-misdemeanors are punished as either a felony or a misdemeanor
...
The restrictive
nature of the confinement is another difference
...

EXERCISES
Answer the following questions
...


1
...
Did Harrison
commit a felony or a misdemeanor?
2
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Gillison, 766 N
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2d 649 (2009)
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link: http://scholar
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com/scholar_case?case=8913791129507413362&q=
State+v
...


1
...


Ascertain the effects of specific and general deterrence, incapacitation, rehabilitation,
retribution, and restitution
...


Specific and General Deterrence
Deterrence prevents future crime by frightening the defendant or the public
...
Specific deterrence applies to an individual defendant
...
General deterrence applies to the public at
large
...
When the public
learns, for example, that an individual defendant was severely punished by a sentence of life in prison or
the death penalty, this knowledge can inspire a deep fear of criminal prosecution
...
Examples of incapacitation
are incarceration, house arrest, or execution pursuant to the death penalty
...
Examples of rehabilitation
include educational and vocational programs, treatment center placement, and counseling
...
In some states, for example,
nonviolent drug offenders must participate in rehabilitation in combination with probation, rather than
submitting to incarceration
...


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When victims or society discover that
the defendant has been adequately punished for a crime, they achieve a certain satisfaction that our
criminal procedure is working effectively, which enhances faith in law enforcement and our government
...
Restitution is when the court
orders the criminal defendant to pay the victim for any harm and resembles a civil litigation damages
award
...

It can also be a fine that covers some of the costs of the criminal prosecution and punishment
...
4 Different Punishments and Their Purpose

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General deterrence prevents crime by frightening the public with the
punishment of an individual defendant
...




Rehabilitation prevents crime by altering a defendant’s behavior
...




Restitution prevents crime by punishing the defendant financially
...
Check your answers using the answer key at the end of the chapter
...
What is one difference between criminal victims’ restitution and civil damages?
2
...
State, 5 S
...
3d 693 (1999)
...
google
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Rev
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§13-901
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justia
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html
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6 Sources of Law
LEARNING OBJECTIVES
1
...


2
...

3
...

4
...

5
...

6
...

7
...

Law comes from three places, which are referred to as the sources of law
...
Two constitutions are applicable in every state: the federal
or US Constitution, which is in force throughout the United States of America, and the state’s
constitution
...
States’ constitutions typically focus on issues of local concern
...
Private individuals are
protected by the Constitution, but they do not have to follow it themselves
...
Although other
individuals may be annoyed by Cora’s words, the government cannotarrest or criminally prosecute Cora
for her speech because the First Amendment of the US Constitution guarantees each individual the right
to speak freely
...
Macy’s and its personnel are private, not government,
and they do not have to abide by the Constitution
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Exceptions to the Constitution
The federal and state constitutions are both written with words that can be subject to more than one
interpretation
...
Constitutional
protections and exceptions are discussed in detail inChapter 3 "Constitutional Protections"
...
For example, public schools and prisons can mandate a certain style of dress for the
purpose of ensuring safety
...
However, if wearing a uniform can lower
gang-related conflicts in school and prevent prisoners from successfully escaping, the government can
constitutionally suppress free speech in these locations
...
Pursuant to principles of federal supremacy, the federal or US
Constitution is the most preeminent source of law, and state constitutions cannot supersede it
...


Statutory Law
The second source of law is statutory law
...
Astatute is a written (and published) law that can be
enacted in one of two ways
...
This is simply a group of individuals elected for this purpose
...
Every state has a legislative branch as well,
called a state legislature, and a state legislature votes state statutes into law
...

State citizens can also vote state statutes into law
...
For example, a majority of California’s
citizens voted to enact California’s medicinal marijuana law
...


[2]

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If a conflict exists between constitutional and statutory law,
the courts must resolve the conflict
...


Administrative Laws and Ordinances
Other written and published laws that apply to individuals are administrative lawsand ordinances
...

Administrative laws are enacted by administrative agencies, which are governmental agencies designed to
regulate in specific areas
...
The Food and Drug
Administration (FDA) is an example of a federal administrative agency
...

Ordinances are similar to statutes, except that cities and counties vote them into law, rather than a state’s
legislature or a state’s citizens
...
A written law
prohibiting jaywalking within a city’s or county’s limits is an example of an ordinance
...
The intent of the Model Penal Code was to provide a standardized set of criminal
statutes that all states could adopt, thus simplifying the diversity effect of the United States’ legal system
...


Case Law
The third source of law is case law
...
Federal case law comes from federal courts, and state case law comes from state courts
...


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This was in contrast to countries that followed the Roman Law system, which primarily relied on written
codes of conduct enacted by legislature
...

Societal principles of law and equity were the guidelines when courts issued their rulings
...
Case law was
named common law because it was common to the entire nation
...

Initially, the thirteen colonies unanimously adopted common law as the law of the land
...

Gradually, after the Revolutionary War, hostility toward England and modern reform led to the erosion of
common-law crimes and a movement toward codification
...
Oxford professor Sir William Blackstone’sCommentaries on
the Law of England, which interpreted and summarized English common law, became an essential
reference as the nation began the process of converting common-law principles into written statutes,
ordinances, and penal codes
...
This

violates notions of fairness
...
It also violates the principle of legality, a core concept of
American criminal justice embodied in this phrase: “Nullum crimen sine lege, nulla poena sine crimen”
(No crime without law, no punishment without crime)
...
If no statute
exists to criminalize the defendant’s behavior, the defendantcannot be criminally prosecuted, even if the
behavior is abhorrent
...
05(1))
...
Classification of crimes as felonies and misdemeanors is a reflection of English

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Legislatures often create statutes out of former common-law crimes
...
The United States is considered a common-law country
...


[6]

Example of a Court’s Refusal to Create a Common-Law Crime
Read Keeler v
...
2d 617 (1970)
...
The California Supreme Court disallowed a murder charge
against Keeler under California Penal Code § 187 because the statute criminalized only the malicious
killing of a “human being
...
The court reasoned that itcould
not create a new crime without violating the due process clause, separation of powers, and California
Penal Code § 6, which prohibits the creation of common-law crimes
...


[7]

Powerful Nature of Case Law
Generally, if there is a statute on an issue, the statute is superior to case law, just as the Constitution is
superior to statutory law
...
A judge can interpret a constitution in a way that adds or creates exceptions to
its protections
...
This is called the power of judicial review
...
Johnson, 491 U
...
397 (1989)
...
Thus the Court reversed the defendant’s conviction under a Texas statute that
criminalized the desecration of a venerated object
...


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5 Diagram and Hierarchy of the Sources of Law

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It would not be fair to punish someone for conduct that is not yet illegal
...
Stare decisis is derived from English common law and compels judges to follow
rulings in previous cases
...
Once judges have issued a ruling on a particular case,
the public can be assured that the resulting precedent will continue to be followed by other judges
...


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There is often more than one level of appeal, so
some appeals come from higher courts than others
...

Many complex rules govern the use of precedent
...
With proper research, lawyers can
usually find precedent that matches or comes very close to matching the facts of any particular case
...


Example of Stare Decisis and Use of Precedent
Geoffrey is a defense attorney for Conrad, who is on trial for first-degree murder
...
Geoffrey finds case precedent from a New York Court of Appeals, dated
1999, indicating that Conrad should have been prosecuted for voluntary manslaughter, not first-degree
murder
...
The trial court will probably
follow the precedent submitted by Brandon because it is newer, from a higher court, and from the same
court system as the trial
...
A published case is also called ajudicial opinion
...
It is essential to
understand the meaning of thecase citation
...
For example, let’s analyze the case citation
for Keeler v
...
2d 617 (1970)
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Figure 1
...
The name of that book is “P
...

The number 617 is the page number of the Keeler case
...


Case Briefing
It is useful to condense judicial opinions into case brief format
...
7 "Keeler Case Brief"
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Figure 1
...
google
...

Published judicial opinions are written by judges and can be lengthy
...
Case briefs reduce a judicial opinion to its essentials and can be
instrumental in understanding the most important aspects of the case
...

Review the Keeler case brief
...
The
next component of the case brief should be theprocedural facts
...
As you can see from the Keeler case brief, Keeler
brought an application for a writ of prohibition, and the court is the California Supreme Court
...
The procedural and substantive facts are followed by the issue
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court is examining, which is usually the grounds for appeal
...

Cases usually have more than one issue
...

Thesubstantive holding comes after the issue, is actually the case law, and answers the issue question
...


Figure 1
...
Madison, 5 U
...
(1 Cranch) 137
(1803),http://www
...
cornell
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html
...
The procedural holding discusses what the court
did procedurally with the case
...
This book discusses court procedure in detail inChapter 2
"The Legal System in the United States"
...
The rationale
discusses the reasoning of the judges when ruling on the case
...


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Judges vote how to rule, and not all cases are supported by a unanimous ruling
...
If a judge agrees with the judicial opinion, the
judge could write aconcurring opinion, which explains why the judge agrees
...
The dissenting
opinion will not change the judicial opinion, but it may also be used as precedent in a future case if there are grounds
for changing the law
...




The sources of law are ranked as follows: first, constitutional; second, statutory; and
third, case law
...




The purpose of the US and state constitutions is to regulate government action
...




The purpose of case law is to supplement the law when there is no statute on point and
also to interpret statutes and the constitution(s)
...



The components of a case brief are the following:

o

The title, plus citation
...


o

The procedural facts of the case
...


o

The substantive facts
...


o

The issue
...


o

The substantive holding
...


o

The procedural holding
...


o

The rationale
...

EXERCISES

Saylor URL: http://www
...
org/books

Saylor
...
Check your answers using the answer key at the end of the chapter
...
Hal invents a new drug that creates a state of euphoria when ingested
...
Read Shaw v
...
S
...
Did the US Supreme Court allow prison
inmates the First Amendment right to give other inmates legal advice? Why or why not?
The case is available at this
link:http://scholar
...
com/scholar_case?case=9536800826824133166&hl=en&as_s
dt=2&as_vis=1&oi=scholarr
...
Read Justice Scalia’s dissenting opinion in Lawrence v
...
S
...
What
is the primary reason Justice Scalia dissented to the US Supreme Court’s opinion
in Lawrence? The dissenting opinion is available at this
link:http://www
...
cornell
...
ZD
...
The judicial opinion
inLawrence v
...
law
...
edu/supct/html/02102
...
html
...
Health and Safety Code § 11362
...
cdph
...
gov/programs/mmp/Pages/Medical%20Marijuana%20Program
...

[2] Brian Brown and Greg Jolivette, “A Primer: Three Strikes—The Impact after More Than a Decade,”
Legislative Analyst’s Office website, accessed February 15,
2010,http://www
...
ca
...
htm
...
org website, accessed September 26,
2010, http://www
...
org/LegalDictionary/C/CommonLaw
...

[4] Lloyd Duhaime, “Common Law Definition,” Duhaime
...
duhaime
...
aspx
...
Hudson & Goodwin, 11 U
...
32 (1812), accessed September 24,
2010,http://openjurist
...

[6] Legal Definition, “Common Law,” Lectlaw
...
lectlaw
...
htm
...
Penal Code § 187, accessed August 23, 2010,http://codes
...
findlaw
...


Saylor URL: http://www
...
org/books

Saylor
...
Madison, 5 U
...
(1 Cranch) 137 (1803), accessed February 15,
2010,http://www
...
cornell
...
html
...
7 End-of-Chapter Material
Summary
A crime is action or inaction in violation of a criminal law
...

The study of criminal law defines crimes and defenses to crimes
...

A civil lawsuit or civil litigation matter resolves a dispute between individuals, called a plaintiff (the
injured party) and defendant (the alleged wrongdoer)
...
The goal of the civil litigation matter is to compensate the plaintiff for
injury
...
Both parties
in a civil litigation matter must represent themselves or hire private attorneys
...
Some criminal prosecutions do not
include a victim, or harm, because the goal of the criminal prosecution is punishment, not compensation
...

Crimes can be classified according to the severity of punishment
...
Misdemeanors are less serious than felonies and have
less severe sentencing options
...
Infractions, also called violations, are the least serious
crimes and generally do not involve incarceration
...

Law comes from three sources: the Constitution, a statute, or a case
...
Statutory law applies to individuals

Saylor URL: http://www
...
org/books

Saylor
...
Case law is law made by judges when they rule on the facts of a case
...
When a case invalidates a statute as
unconstitutional, this action is called judicial review
...
This policy, called stare decisis, lends predictability to case law
but is not absolute, and courts can deviate from it to update the law
...
Check your answers using the answer key at the end of the chapter
...
You are an expert in criminal law, not civil litigation
...
Bush, 386 F
...
2004)
...
google
...

2
...
Would you accept orreject this
case? Read People v
...
Y
...
The case is available at
this link: http://law
...
com/cases/new-york/appellate-division-firstdepartment/2010/2010-04501
...
You are an expert in constitutional law
...
Layne, 526 U
...
603 (1999)
...
law
...
edu/supct/html/98-83
...
html
...
Reread question 3
...
Would you accept or reject the Wilson case?

Cases of Interest


Padilla v
...
3d 1016 (2005), discusses malum in se and malum
prohibitum
crimes: http://scholar
...
com/scholar_case?case=5187582705718052419&q=
malum+in+se+ malum+in+prohibitum&hl=en&as_sdt=2,5&as_ylo=2004&as_vis=1
...
saylor
...
org
36



Rogers v
...
S
...
law
...
edu/supct/html/99-6218
...
html
...
Wade, 410 U
...
113 (1973), is the case in which the US Supreme Court invalidates
a state statute criminalizing
abortion:http://www
...
cornell
...

html
...
thefreedictionary
...
about
...
htm

Websites of Interest


Federal criminal statutes: http://www
...
cornell
...
legallawhelp
...
html



Government agencies in alphabetical
order:http://www
...
gov/Agencies/Federal/All_Agencies/index
...
law
...
edu/constitution



State constitutions: http://www
...
com/11stategov/indexconst
...
ojp
...
gov/index
...
ojp
...
gov/index
...
ucrdatatool
...
cfm

Answer to Exercise
From Section 1
...
The US Supreme Court held that the attorney general cannot criminalize the use of
drugs under Oregon’s Death With Dignity Act by enforcing the Controlled Substances
Act
...


Answers to Exercises
Saylor URL: http://www
...
org/books

Saylor
...
2 "Criminal Law and Criminal Procedure"

1
...
Although Paul is a law enforcement officer, when he
shoots Barney while he is facedown in handcuffs, he may be committing a crime
...

2
...
This case focuses on law enforcement arrest, so it
examines an issue of criminal procedure
...
3 "The Difference between Civil and Criminal Law"

1
...
Although the incident involves Jerry, who is a law
enforcement officer, and it takes place while Jerry is writing a traffic ticket, Jerry is
suing Juanita for damages
...
If
Juanita is prosecuted for the crime of filing a false police report, then this would be a
criminal prosecution
...
The Johnson case reviews an award of damages and is thus a civil litigationmatter
...


Answers to Exercises
From Section 1
...
This crime is probably a misdemeanor because Harrison was sentenced to one year
in jail, rather than prison
...
Criminal homicide is discussed in Chapter 9
"Criminal Homicide"
...
The Iowa Court of Appeals based its ruling on New Jersey law
...
This
triggered a sentencing enhancement increasing the defendant’s sentence to an
indeterminate sentence of incarceration not to exceed fifteen years
...
5 "The Purposes of Punishment"
Saylor URL: http://www
...
org/books

Saylor
...
The court awards criminal restitution to the victim after a state or federal prosecutor is
successful in a criminal trial
...
A plaintiff that receives damages has to pay a private
attorney to win the civil litigation matter
...
In Campbell, the defendant entered a plea agreement specifying that he had committed
theft in an amount under $100,000
...

The defendant claimed that this amount was excessive because it exceeded the
parameters of the theft statute he was convicted of violating
...
As long as the judge properly ascertained this amount based
on the facts, restitution could exceed the amount specified in the criminal statute the
defendant was convicted of violating
...
6 "Sources of Law"

1
...
The drug is new, so the state legislature will probably not have
criminalized it by enacting a statute
...
The US Supreme Court held that inmates do not have the First Amendment right to give
other inmates legal advice
...
The Court stated, “We
nonetheless have maintained that the constitutional rights that prisoners possess are
more limited in scope than the constitutional rights held by individuals in society at
large
...
Justice Scalia criticized the US Supreme Court majority for not adhering to stare decisis
...
Hardwick
...
saylor
...
org
39

1
...
Criminal defendants may lose their life or their liberty
...
In addition, criminal defendants face the
intimidating prospect of fighting the government and all its vast resources
...
As a society, we believe
that there is nothing as unjust as punishing an innocent person
...


2
...
J
...
Constitutional
protections are discussed in Chapter 3 "Constitutional Protections"
...


In this case, the plaintiffs are seeking an injunction
...
They are not suing for the goal of punishment,
but rather to compel the president of the United States and the secretary of defense to
review the use of certain naval equipment
...


2
...
In this case, a
witness who was too ill to travel was permitted to testify via live, two-way video instead
of testifying in the courtroom in front of the defendant
...

This case focuses on the defendant’s constitutional rights during his criminal trial, so
this is a criminal procedure issue and you should reject the case
...
The US Supreme Court held that it is unconstitutional under the Fourth Amendment
when law enforcement brings media along while executing a search
...

4
...
S
...
§ 1983
...

Saylor URL: http://www
...
org/books

Saylor
...
Murphy, 532 U
...
223, 229 (2001), accessed October 4,
2010,http://scholar
...
com/scholar_case?case=9536800826824133166&hl=en&as_sdt=2&as_vis=1&
oi=scholarr
...
The accused, during a criminal prosecution, has at stake interests of immense importance, both because of
the possibility that he may lose his liberty upon conviction and because of the certainty that he would be stigmatized
by the conviction
...
1 Federalism
LEARNING OBJECTIVES
1
...


2
...

3
...

4
...

5
...

6
...

The United States’ system of government is called federalism
...
This prevents a concentrated source
of governmental power in one individual or small group of individuals
...
Thus in the United States, a plethora of legal
systems all operate harmoniously at the same time
...
The federalgovernment derives its
authority to create law from Article I, § 8, which discusses federal Congress’s exclusive or delegated
powers
...
saylor
...
org
41

powers expressly granted in the Constitution
...

To simplify and summarize precedent defining federal regulatory authority, federal laws are meant to
regulate in two areas
...
The federal government regulates in the area of foreign affairs, for example, because this
affects the United States of America, not just one particular region
...
Some common examples are
television broadcasts, the Internet, and any form of transportation such as the airlines
...
The only crimes Congress is specifically authorized to punish are piracies
and felonies on the high seas, counterfeiting, and treason; however, case precedent has expanded the
federal government’s power to enact criminal laws based on the commerce clause and the necessary and
proper clause
...
In general, federal criminal laws target
conduct that occurs on federal property or conduct involving federal employees, currency, coin, treason,
national security, rights secured by the Constitution, or commerce that crosses state lines
...

Figure 2
...
saylor
...
org
42

The Scope of State Law
The US Constitution designates the states as the primary regulatory authority
...
” State laws are also supposed to regulate in two areas
...
A state may regulate, for example, its water ownership
and use because water can be scarce and is not generally provided to other states
...
saylor
...
org
43

things that remain within a state’s border
...

Federal laws are the same in every state, but state laws differ from state to state
...
This inconsistency makes our system of federalism complicated for students (and
lawyers)
...


State Criminal Laws
The power to enact criminal laws belongs almost exclusively to the states
...
Approximately 90 percent of all criminal laws are state, rather than federal
...


Example of the Diversity of State Laws
In Nevada, prostitution is legal under certain circumstances
...
However, if
the same individual engages in prostitution in a different state, he or she may be subject to a criminal
prosecution
...

Figure 2
...
saylor
...
org
44

Federal Supremacy
Our legal system is divided up to conform to the principle of federalism, so a potential exists for conflict between
federal law and state law
...
Whenever
a conflict occurs between federal and state law, courts must follow the federal law
...

As the Supremacy Clause of Article VI of the federal Constitution states, “This Constitution, and the Laws of the
United States which shall be made in Pursuance thereof; and all Treaties made, or which shall be made, under the
Authority of the United States, shall be the supreme Law of the Land; and the Judges in every State shall be bound
thereby, any Thing in the Constitution or Laws of any State to the Contrary notwithstanding
...
saylor
...
org
45

Example of Federal Supremacy
In Washington and several other states, an individual may possess and use marijuana for medicinal
purposes with a prescription
...


[4]

[3]

Federal law prohibits possession and use of marijuana under any

Technically, this could be a conflict that violates federal supremacy
...

Read about a recent ruling regarding the constitutionality of Michigan’s medicinal marijuana law under
the Supremacy
Clause:http://www
...
com/articles/2011/04/09/news/doc4d9f557b8ab37805648033
...

Figure 2
...
saylor
...
org
46

LAW AND ETHICS: THE ARIZONA IMMIGRATION LAW
Can a State Regulate Immigration?
Arizona passed a comprehensive immigration law designed to seek out and deport illegal immigrants
...
The federal government attacked
the law in Federal District Court
...


Saylor URL: http://www
...
org/books

[6]

Read the District

Saylor
...
nytimes
...
pdf
...


What is the basis for Judge Bolton’s decision? Check your answer using the answer key
at the end of the chapter
...
com/2011/05/10/arizonas-jan-brewer-to-appeal-immigration-law-to-u-s-

supreme-court/
...
cnn
...
immigration
...

Read about Alabama’s immigration
law:http://www
...
com/article/2011/06/10/tagblogsfindlawcom2011-freeenterprise-

idUS123058502120110610
...



Congress gets its regulatory authority from Article I § 8 of the federal Constitution
...


o

The commerce clause gives Congress the power to regulate commerce that
crosses state lines
...




The Constitution specifically authorizes Congress to punish piracies and felonies on the
high seas, counterfeiting, and treason
...




The federal government is intended to be limited, with the bulk of regulatory authority
residing in the states
...
The states can regulate for the

Saylor URL: http://www
...
org/books

Saylor
...



Federal criminal laws criminalize conduct that occurs on federal property or involves
federal employees, currency, coin, treason, national security, rights secured by the
Constitution, or commerce that crosses state lines
...




Federal supremacy, which is set forth in the Supremacy Clause of the federal
Constitution, requires courts to follow federal laws if there is a conflict between a
federal and state law
...
Check your answers using the answer key at the end of the chapter
...
Congress passes a law criminalizing the posting of child pornography on the Internet
...
Read U
...
v
...
S
...
Which part(s) of the Constitution did the US
Supreme Court rely on when it held that 42 U
...
C
...
law
...
edu/supct/html/99-5
...
html
...
Read Pennsylvania v
...
S
...
Why did the US Supreme Court
invalidate the Pennsylvania Sedition Act? The case is available at this
link:http://supreme
...
com/us/350/497/case
...

[1] McCulloch v
...
S
...
) 316 (1819), accessed August 28,
2010,http://www
...
cornell
...
html
...
R
...
§ 201
...
leg
...
nv
...
html#NRS201Sec354
...
51A RCW, accessed August 28,
2010, http://apps
...
wa
...
aspx?cite=69
...
saylor
...
org
49

marijuana: “16 Legal Medical Marijuana States and DC,” ProCon
...
procon
...
resource
...

[4] 21 U
...
C
...
13 § 801 et
...
, accessed October 1,
2010,http://www
...
usdoj
...
html
...
Archibold, “Judge Blocks Arizona’s Immigration Law,” The New York Timeswebsite, accessed
October 1, 2010, http://www
...
com/2010/07/29/us/29arizona
...

[6] Randal C
...
nytimes
...
html
...
2 The Branches of Government
LEARNING OBJECTIVES
1
...


2
...

3
...

4
...

5
...

The federal Constitution was written to ensure that government power is distributed and never concentrated in one or
more areas
...
It
is also further served by dividing the government into three branches, all responsible for different government duties
and all checking and balancing each other
...
While the
federal Constitution identifies only the federal branches of government, the principle of checks and balances applies
to the states as well
...

Each branch of government has a distinct authority
...
The courtsdecide whether a government branch has overstepped its
boundaries because courts interpret the Constitution, which describes each branch’s sphere of influence
...


Saylor URL: http://www
...
org/books

Saylor
...
Citizens of a state can vote for some
state statutes by ballot, but the federal legislative branch enacts all federal statutes
...
States’ legislative branches are headed by a
state legislature
...
This system provides
equal representation among the several states and by citizens of the United States
...
Every state, no matter how large or small, gets two senators
...
Membership in the House of Representatives is based on population
...
States’ legislatures are generally bicameral and have a similar structure to the federal system
...
4 Diagram of the Legislative Branch

Saylor URL: http://www
...
org/books

Saylor
...
Congress
can impeach the president of the United States, which is the first step toward removal from office
...
Similarly, state legislature can also impeach a governor or enact a state statute that
supersedes a state case law
...
saylor
...
org
52

The Executive Branch
The executive branch is responsible for enforcing the statutes enacted by the legislative branch
...
States’ executive
branches are headed by the governor of the state
...
5 Diagram of the Executive Branch

Examples of Executive Branch Checks and Balances
The executive branch can check and balance both the legislative branch and thejudicial branch
...
The president also has the

Saylor URL: http://www
...
org/books

Saylor
...
State executive branches
have similar check and balancing authority; a governor can generally veto statutes proposed by state
legislature and can appoint some state justices and judges
...
This power is all encompassing and is the basis for judicial review,
referenced in Chapter 1 "Introduction to Criminal Law"
...
For example, when a court creates an exception to an amendment to the constitution, it
has made an informal change without the necessity of a national or state consensus
...
Each state’s judicial branch is headed by the highest-level
state appellate court
...

Figure 2
...
saylor
...
org
54

Examples of Judicial Branch Checks and Balances
The judicial branch can check and balance both the legislative branch and theexecutive branch
...
The US Supreme Court can
also prevent the president from taking action if that action violates separation of powers
...


Table 2
...
saylor
...
org
55

Government
Branch

Duty or Authority

Check and Balance

Government Branch
Checking and
Balancing

veto by 2/3 majority
Interpret statutes
and Constitution

President nominates federal judges
and justices

Executive

Executive

Enforce statutes

Senate can confirm or reject
presidential nomination of federal
judges and justices

Legislative

Executive

Enforce statutes

Congress can impeach the president

Legislative

Legislative

Create statutes

Courts can invalidate unconstitutional
statutes
Judicial

Executive

Enforce statutes

Courts can invalidate unconstitutional
executive action
Judicial

Judicial

Interpret statutes
and Constitution

Statutes can supersede case law

Judicial

Legislative

KEY TAKEAWAYS


The three branches of government are the legislative branch, the executive branch, and
the judicial branch
...
The head of the
state legislative branch of government is the state legislature
...
The
House of Representatives represents each citizen equally because states are assigned
representatives based on their population
...
The head of
each state executive branch of government is the governor
...
The
head of each state judicial branch of government is the highest-level state appellate
court
...
Check your answers using the answer key at the end of the chapter
...
A mayor enacts a policy that prohibits police officers in his city from enforcing a state
law prohibiting the possession and use of marijuana
...
saylor
...
org
56

states that within the city limits, marijuana is legal to possess and use
...
Read Youngstown Sheet & Tube Co
...
Sawyer, 343 U
...
579 (1952)
...
President Truman wanted to ensure steel
production during the Korean War
...
justia
...

3
...
Rumsfeld, 542 U
...
507 (2004)
...
The
citizen’s detention was based on a federal statute that deprived him of the opportunity
to consult with an attorney or have a trial
...
google
...


2
...


Compare federal and state courts
...
Define jurisdiction
...
Compare original and appellate jurisdiction
...
Identify the federal courts and determine each court’s jurisdiction
...
Identify the state courts and determine each court’s jurisdiction
...
Federal courts are fewer in number than state courts
...
1
...


Saylor URL: http://www
...
org/books

Saylor
...
This means that a case can go through the federal
court system only if it is based on a federal statute or the federal Constitution
...


[1]

If citizens from different states are involved in a civil lawsuit and the amount in controversy

exceeds $75,000, the lawsuit can take place in federal court
...

State courts are nonexclusive; they can adjudicate state or federal matters
...
In addition, someone involved in a lawsuit
based on a federal statute or the federal Constitution can remove a lawsuit filed in state court to federal court
...


Jurisdiction
Determining which court is appropriate for a particular lawsuit depends on the concept of jurisdiction
...
A court’s jurisdiction is the power or authority to hear the case in front of
it
...
Jurisdiction can also be a geographic area
over which the court’s authority extends
...
Original jurisdiction means that the court has the
power to hear a trial
...
During the
trial, evidence is presented to a trier of fact, which can be either a judge or a jury
...
Once the trial has concluded, the next step is an appeal
...

The power to hear an appeal is called appellate jurisdiction
...
The trial record includes a court reporter’s transcript, which is typed notes of
the words spoken during the trial and pretrial hearings
...
Once the appellate court has
made its review, it has the ability to take three actions
...
If it finds a
significant error, it can reverse the judgment of the trial court, which means that the judgment becomes

Saylor URL: http://www
...
org/books

Saylor
...
It can also remand, which means send the case back to the
trial court, with instructions
...

Some courts have only original jurisdiction, but most courts have a little of original and appellate
jurisdiction
...
However, it also has original jurisdiction in some cases, as stated in the Constitution, Article
III, § 2, clause 2: “In all Cases affecting Ambassadors, other public Ministers and Consuls, and those in
which a State shall be Party, the supreme Court shall have original Jurisdiction
...
”

Example of Original and Appellate Jurisdiction
Paulina is prosecuted for the attempted murder of Ariana
...
At Paulina’s trial, in spite of Pedro’s objections, the judge rules that Paulina’s polygraph
examination results are admissible, but prohibits the admission of certain witness testimony
...
While Pedro is writing the appellate
brief, he discovers case precedent barring the admission of polygraph examination results
...
The appellate
court has the jurisdiction to hold that the objection was improperly overruled by the trial court, but is
limited to reviewing the trial record for error
...


The Federal Courts
For the purpose of this book, the focus is the federal trial court and the intermediate and highest level
appellate courts because these courts are most frequently encountered in a criminal prosecution
...

The federal trial court is called the United States District Court
...
District courts hear all the federal trials,
including civil and criminal trials
...
The exception to this rule is the diversity of citizenship
exception for civil lawsuits
...
saylor
...
org
59

After a trial in district court, the loser gets one appeal of right
...
The
intermediate appellate court in the federal system is the United States Court of Appeals
...
The US Courts of
Appeals are spread out over thirteen judicial circuits and are also referred to as Circuit Courts
...
The Circuit Court reviews only trials that are federal in nature, with the exception of civil lawsuits
brought to the district court under diversity of citizenship
...
In
general, with exceptions, appeal of a not-guilty verdict (also called an acquittal) violates a defendant’s
double jeopardy protection
...
The US Supreme Court is the highest
court in the country and is located in Washington, DC, the nation’s capital
...

The US Supreme Court is a discretionary court, meaning it does not have to hear appeals
...
The method
of applying for review with the US Supreme Court is called filing a petition for a writ of certiorari
...
If the writ is granted, the US Supreme Court reviews
the appeal
...
For this reason, the US Supreme Court reverses many cases that are accepted
for review
...


The State Courts
For the purpose of this book, a representative state court system is reviewed
...

Most states offer their citizens a “people’s court,” typically called small claims court
...
saylor
...
org
60

the amount in controversy is minimal
...
This means that it cannot adjudicate criminal matters or family court matters such as
granting a petition for divorce
...

Small claims court has special rules that make it amenable to the average individual
...
Small claims court proceedings are generally informal, and usually no court reporter
types what is said
...
Small claims court appeals are the
exception to the general rule and are usually new trials where evidence is accepted
...
This trial court is usually called superior court, circuit court, or county court
...
States can, however,
create “specialty courts” to hear special matters and free up the trial courts for basic criminal prosecutions
and civil litigation trials
...
The lower-level
trial court adjudicates infractions and misdemeanors, along with civil lawsuits with a smaller amount in
controversy
...

The intermediate appellate court for the state court system is usually called the state court of appeals,
although some smaller or low-population states may have only oneappellate court called the state
supreme court
...
Appeals can be of any case adjudicated
in the state trial court
...
At the
appellate level, the state court of appeal simply reviews the trial court record for error and does not have
the jurisdiction to hear new trials or accept evidence
...
In states
that have both intermediate and high-level appellate courts, the state supreme court is a discretionary
court that gets to select the appeals it hears, very similar to the US Supreme Court
...
saylor
...
org
61

court generally grants a petition for writ of certiorari, or a petition for review, if it decides to hear a
civil or criminal case coming out of the state court of appeal
...
If review is granted and the state supreme court rules on the case, the
loser has one more chance to appeal, if there is a federal matter, to the US Supreme Court
...
7 Diagram of the Court System

KEY TAKEAWAYS


Federal courts are exclusive and hear only federal matters or cases involving diversity of
citizenship
...
All
federal criminal prosecutions take place in federal court, and all state criminal
prosecutions take place in state court
...




Original jurisdiction is a court’s power to hear a trial and accept evidence
...




Three federal courts adjudicate criminal matters: the trial court, which is called the
United States District Court; the intermediate court of appeal, which is called the United
States Court of Appeals or Circuit Court; and the high court of appeal, which is called the

Saylor URL: http://www
...
org/books

Saylor
...
The district court has original jurisdiction; the Circuit Court
and US Supreme Court have primarily appellate jurisdiction
...
Small
claims court is a “people’s court” and hears only civil matters with a low threshold of
damages
...
Some states have an intermediate court of appeal, which is
generally called the state court of appeals
...
The trial court has original jurisdiction;
the state court of appeal and state supreme court primarily have appellate jurisdiction
...
Check your answers using the answer key at the end of the chapter
...
Jenna sues Max for $25,000, based on a car accident that occurs in Indiana
...

Can Jenna appeal her case to the US Supreme Court? Why or why not?
2
...
P
...
E
...
, 965 F
...
In P
...
E
...
, the defendant
never went to trial but was indicted
...
The government claimed that the Court of Appeals for the
Tenth Circuit could not hear an appeal of the trial court’s decision, because there was
never a “final judgment
...
google
...

3
...
v
...
Ct
...
How did the US Supreme Court
determine citizenship of a corporation for the purpose of diversity jurisdiction? The case
is available at this
link:http://scholar
...
com/scholar_case?case=11481058059843290042&hl=en&as_
sdt=2&as_vis=1&oi=scholarr
...
S
...
§ 1332, accessed August 30, 2010,http://www
...
cornell
...
html
...
saylor
...
org
63

[2] 28 U
...
C
...
seq
...
law
...
edu/uscode/28/1441
...


2
...


Define the burden of proof
...
Distinguish between the burden of production and the burden of persuasion
...
Compare the civil and criminal burden of proof
...
Compare inference and presumption
...
Compare circumstantial and direct evidence
...
Afailure to meet the burden of
proof is also a common ground for appeal
...
You also are introduced to different classifications of evidence and evidentiary rules that can change
the outcome of the trial
...


[1]

The

burden of proof has two components: the burden of production and the burden of persuasion
...
The burden of persuasion is the
duty to convince the judge or jury to a certain standard, such as beyond a reasonable doubt, which is
defined shortly
...
“Meeting the burden of proof” means that a party has introduced
enough compelling evidence to reach the standard defined in the burden of persuasion
...
The
defendant often has the burden of proving any defense
...
The trier of fact would be a judge in a nonjury or bench trial
...
Jurors are not legal experts, so the judge explains the burden of proof in jury instructions,
which are a common source of appeal
...
saylor
...
org
64

Burden of Proof in a Civil Case
Burdens of proof vary, depending on the type of case being tried
...
Preponderance of evidence requires the plaintiff to introduce
slightly more or slightly better evidence than the defense
...
When preponderance of evidence is the burden of proof, the judge or jury must be
convinced that it is “more likely than not” that the defendant is liable for the plaintiff’s injuries
...
If the plaintiff offers evidence of questionable quality, the judge or jury can
find that the burden of proof is not met and the plaintiff loses the case
...

For example, in the O
...
Simpson civil case discussed inChapter 1 "Introduction to Criminal Law", O
...

Simpson failed to meet the burden of proving the defense of alibi
...
If the plaintiff does not meet the burden of proof, the defendant is
victorious without having to present any evidence at all
...
Judges have struggled with a definition for this burden of proof
...
It is not mere possible doubt; because every thing relating to human affairs, and depending on
moral evidence, is open to some possible or imaginary doubt
...


[2]

In general, the prosecution’s evidence must overcome the defendant’spresumption of innocence, which
the Constitution guarantees as due process of law
...
If even a slight chance exists that the defendant is
innocent, the case most likely lacks convincing and credible evidence, and the trier of fact should acquit
the defendant
...
saylor
...
org
65

States vary as to their requirements for the defendant’s burden of proof when asserting a defense in a
criminal prosecution
...
Some states require
the defendant to meet the burden of production, but require the prosecution to thereafter meet the
burden of persuasion,disproving the defense to a preponderance of evidence or, in some states, beyond a
reasonable doubt
...
In these states, the defendant’s standard is typically preponderance of evidence, not beyond a
reasonable doubt
...
If the
prosecution does not meet the burden of proof, the defendant is acquitted without having to present any
evidence at all
...
The only key piece of evidence in Ann’s trial is the murder weapon,
which was discovered in Ann’s dresser drawer during a law enforcement search
...
The defense is successful with
this motion, and the judge rules that the murder weapon is inadmissible at trial
...
If there is no other convincing and credible evidence of Ann’s guilt, Ann does not need
to put on a defense in this case
...


Figure 2
...
saylor
...
org
66

Inference and Presumption
Parties can use two tools to help meet the burden of proof: inference andpresumption
...

An inference is a conclusion that the judge or jury may make under the circumstances
...
For example, if the prosecution proves that the defendant punched the
victim in the face after screaming, “I hate you!” the judge or jury can infer that the punch was thrown
intentionally
...
saylor
...
org
67

A presumption is a conclusion that the judge or jury must make under the circumstances
...
Thus the judge or jury must begin any
criminal trial concluding that the defendant is not guilty
...
A party can disprove a rebuttablepresumption
...
An irrebuttable presumption is irrefutable and cannot be disproved
...
Thus in these jurisdictions children under the age of seven cannot be criminally
prosecuted (although they may be subject to a juvenile adjudication proceeding)
...

Circumstantial evidence indirectly proves a fact
...
A
defendant’s fingerprint at the scene of the crime directly proves that the defendant placed a finger at that
location
...
Common examples of circumstantial evidence are fingerprint
evidence, DNA evidence, and blood evidence
...
However, circumstantial evidence such as DNA evidence can be very reliable and compelling, so the
prosecution can and often does meet the burden of proof using only circumstantial evidence
...
For example, eyewitness testimony is often direct evidence
...
Common examples of direct evidence are eyewitness testimony, a defendant’s
confession, or a video or photograph of the defendant committing the crime
...
However, direct
evidence can be unreliable and is not necessarily preferable to circumstantial evidence
...

Table 2
...
saylor
...
org
68

Evidence

Circumstantial

Direct

Fiber from the defendant’s coat found
in a residence that has been
burglarized

Yes

No—directly proves presence at the scene,
not that the defendant committed burglary

GPS evidence indicating the defendant
drove to the burglarized residence

Yes

No—same explanation as fiber evidence

Testimony from an eyewitness that she
saw the defendant go into the backyard
of the burglarized residence
Yes

No—could prove trespassing because it
directly provespresence at the scene, but it
does not directly prove burglary

Surveillance camera footage of the
defendant purchasing burglar tools

Yes

No—does not directly prove they were used
on the residence

Cell phone photograph of the
defendant burglarizing the residence

No

Yes—directly proves that the defendant
committed the crime

Witness testimony that the defendant
confessed to burglarizing the residence No

Yes—directly proves that the defendant
committed the crime

Pawn shop receipt found in the
defendant’s pocket for items stolen
from the residence

No—directly proves that the items were
pawned, not stolen

Yes

KEY TAKEAWAYS


The burden of proof is a party’s obligation to prove a charge, allegation, or defense
...
The burden
of persuasion is the duty to convince the trier of fact to a certain standard, such as
preponderance of evidence or beyond a reasonable doubt
...

The criminal burden of proof for the prosecution is beyond a reasonable doubt
...
States vary on whether they require the criminal defendant to meet
both the burden of production and persuasion or just the burden of production
...


o

In states that require the defendant to meet only the burden of production, the
prosecution must disprove the defense to a preponderance of evidence or
beyond a reasonable doubt, depending on the state and on the defense
...
saylor
...
org
69



An inference is a conclusion the trier of fact may make, if it chooses to
...
A rebuttable presumption can be disproved; an
irrebuttable presumption cannot
...
A fingerprint at the scene of the crime,
for example, indirectly proves that because the defendant was present at the scene, the
defendant committed the crime
...
If the defendant
confesses to a crime, for example, this is direct evidence that the defendant committed
the crime
...
Check your answers using the answer key at the end of the chapter
...
Bria is asserting the insanity defense in her criminal prosecution for murder
...
Bria offers her own testimony that she is
insane and incapable of forming criminal intent
...
Read Patterson v
...
S
...
In Patterson, the defendant was on
trial for murder
...
Did the US Supreme
Court hold that it is constitutional to put this burden on the defense, rather than forcing
the prosecution to disprove extreme emotional disturbance beyond a reasonable doubt?
Which part of the Constitution did the Court analyze to justify its holding? The case is
available at this link: http://supreme
...
com/us/432/197/case
...

3
...
Louisiana, 508 U
...
275 (1993)
...
Did the US
Supreme Court hold that this was a prejudicial error requiring reversal of the
defendant’s conviction for murder? Which part of the Constitution did the Court rely on
in its holding? The case is available at this
link:http://scholar
...
com/scholar_case?case=1069192289025184531&hl=en&as_s
dt=2002&as_vis=1
...
saylor
...
org
70

[1] Yourdictionary
...
yourdictionary
...

[2] Commonwealth v
...
295, 320 (1850), accessed September 26,
2010,http://masscases
...
html
...
S
...
law
...
edu/supct/html/historics/USSC_CR_0397_0358_ZO
...

[4] Findlaw
...
com website, accessed October 1,
2010, http://criminal
...
com/crimes/more-criminal-topics/insanity-defense/the-insanity-defense-among-thestates
...

[5] David Lohr, “Casey Anthony Verdict: NOT GUILTY of First-Degree Murder,” Huffingtonpost
...
huffingtonpost
...
html#s303265&title=Casey_Anthony_Verdict
...
5 End-of-Chapter Material
Summary
The United States’ system of government is called federalism and consists of one federal government
regulating issues of a national concern and separate state governments regulating local issues
...
Ninety percent of all criminal laws are state laws
...

If a federal statute exists on an issue, a state statute cannot conflict with it because of the Constitution’s
Supremacy Clause
...
The legislative branch consists of Congress and
has the authority to create laws
...
The judicial branch is headed by
the US Supreme Court and has the authority to interpret laws and the Constitution
...
saylor
...
org
71

violates separation of powers
...

The federal court system exclusively adjudicates federal matters and consists primarily of the US District
Court, the US Court of Appeals or Circuit Court, and the US Supreme Court
...
Trial courts have original jurisdiction and can accept evidence
...

Each party in a civil or criminal trial must meet a burden of proof, which consists of a burden of producing
evidence and a burden of persuading the trier of fact
...
The burden of proof for the prosecution in a criminal case is beyond a
reasonable doubt, which is a stricter standard than preponderance of evidence and consists of enough
compelling evidence to rebut the defendant’s presumption of innocence
...
Inferences, which are conclusions the trier
of fact may make, and presumptions, which are conclusions the trier of fact must make, can help meet the
burden of proof
...
Circumstantial evidence leaves room for
reasonable doubt, but it can be reliable and the basis of a successful criminal prosecution
...
Check your answers using the answer key at the end of the chapter
...
The defendant was convicted of possession of a handgun with an altered serial number
...
The
prosecution offered evidence that the gun was “shiny” in the location of the serial
number
...
Is this sufficient evidence to prove beyond a reasonable doubt that
the defendant knew the serial number had been altered? Read Robles v
...
E
...
The case is available at this

Saylor URL: http://www
...
org/books

Saylor
...
google
...
+State%22&hl=en&as_sdt=2,5
...
The defendant was convicted of attempted first-degree murder of a peace officer when
he shot a sheriff
...
The sheriff was in a vehicle with a whip antenna, was armed, and was well
known as a sheriff in Angola Prison, where the defendant was incarcerated previous to
the shooting incident
...
Is this sufficient evidence to prove
beyond a reasonable doubt that the defendant knew the victim was a peace officer?
Read Donahue v
...
3d 1000 (2000)
...
org/231/f3d/1000/larry-donahue-v-burl-cain
...
The defendant was convicted of third-degree robbery, which requires a threat of
immediate use of physical force
...
The defendant beckoned the clerk and thereafter demanded that she
put money from different cash register drawers into his bag
...
Is this sufficient
evidence to prove beyond a reasonable doubt that the defendant threatened immediate
use of physical force? Read State v
...
2d 208 (1998)
...
publications
...
state
...
us/S44712
...

4
...
The defendant
possessed seven individual packages of white powdery substance, but only one package
was tested (and it tested positive for cocaine)
...
Florida, No
...
The case is available at this
link: http://www
...
org/opinions/June%202010/06-09-10/4D08-4216
...
wdissent
...


Cases of Interest

Saylor URL: http://www
...
org/books

Saylor
...
Jones, 520 U
...
681 (1997), discusses separation of
powers:http://scholar
...
com/scholar_case?case=1768307810279741111&q=
Clinton+v
...




Gonzales v
...
S
...
google
...




Sabri v
...
S
...
law
...
edu/supct/html/03-44
...
html
...
S
...
Comstock, 627 F
...
google
...


Articles of Interest


Connections between federalism and homeland
security:http://www
...
org/?fullarticle=2
...
4



Video court:http://www
...
com/ap/financialnews/D9N3D24G0
...
jrank
...
html



Federal and state court
systems:http://www
...
gov/EducationalResources/FederalCourtBasics/CourtStr
ucture/UnderstandingFederalAndStateCourts
...
supremecourt
...
uscourts
...
aspx



Civic participation: http://www
...
org

Statistics of Interest


US Supreme
Court:http://www
...
org/uscensus/356_u_s_supreme_court_cases_filed
...
1 "Federalism"
Saylor URL: http://www
...
org/books

Saylor
...
Congress gets the authority to criminalize conduct involving the Internet from the
commerce clause because the Internet includes economic activity andcrosses state lines
...

2
...

Specifically, the Court ruled that gender-motivated crimes of violence are not economic
activity and do not have a national effect, so the commerce clause does not support
federal legislation in this area
...

3
...
S
...
§ 2385
...


Answers to Exercises
From Section 2
...
The mayor is violating separation of powers because members of the executive branch
cannot invalidate or supersede laws passed by the legislative branch; only
the judicial branch is entitled to do this via judicial review
...

2
...
A statute on point already disallowed the president’s
action (the Taft-Hartley Act)
...

3
...
The
Court held that the judicial branch is not required to allow unconstitutional federal
statutes to remain in effect during wartime because ofseparation of powers
...


Answers to Exercises
Saylor URL: http://www
...
org/books

Saylor
...
3 "The Court System"

1
...
Parties can appeal from a state’s highest level appellate court directly
into the US Supreme Court, but the US Supreme Court is a federal court and only has
the jurisdiction to hear federal matters
...

2
...
The court also held that the extraordinary circumstances
compelled a reversal of the district court order denying a motion to dismiss the
defendants’ indictment
...

3
...
The
principal place of business is the “nerve center state,” which is the state that houses the
corporate headquarters
...
4 "The Burden of Proof"

1
...
Preponderance of evidence is a fairly
low standard, but Bria must still convince the trier of fact that it is more likely than not
she is insane
...
Clearly, Bria has an
important self-interest in eliminating her criminal responsibility in this case
...

2
...

The Court held that this did not relieve the prosecution of the burden of proving every

Saylor URL: http://www
...
org/books

Saylor
...

3
...
The Court determined that the improper jury
instruction deprived the defendant of his Sixth Amendment right to a jury trial
...


The federal judge Susan Bolton based her decision on federal preemption and
an impermissible state burden on legal resident aliens
...
[1] The judge
further held that enforcement of the enjoined sections of the Arizona law would divert
federal resources [2] and also impermissibly burden legal resident aliens by restricting
their liberty while their status is checked
...


The Indiana Court of Appeals held that there was sufficient evidence to prove beyond a
reasonable doubt that the defendant knew the serial numbers on the gun had been
altered
...


2
...
The court held that a reasonable juror could not infer knowledge from the whip
antennae and the victim’s job at Angola prison
...
The Supreme Court of Oregon held that there was sufficient evidence to prove beyond
a reasonable doubt that the defendant threatened immediate use of physical force
...


Saylor URL: http://www
...
org/books

Saylor
...
The District Court of Appeal of Florida held that there was sufficientevidence to prove
beyond a reasonable doubt that the defendant possessed cocaine with the intent to sell
...
The court also reasoned that a jury could infer from the packaging
and expert testimony that the other packages also contained cocaine
...
S
...
Arizona, No
...
S
...
nytimes
...
pdf
...
S
...
Arizona, No
...
S
...
nytimes
...
pdf
...
S
...
Arizona, No
...
S
...
nytimes
...
pdf
...


Duncan v
...
2 "The Due Process and Equal Protection Clauses"

3
...


Distinguish between the two types of constitutional protections
...
Compare unconstitutional on its face with unconstitutional as applied
...
Distinguish among different standards of judicial review
...
Compare bill of attainder with ex post facto laws
...
Ascertain the three types of ex post facto laws
...
saylor
...
org
78

In addition to statutory and common-law defenses, a criminal defendant has extensive protections that are set forth
in the United States Constitution
...
State constitutions typically mirror the federal Constitution because it
sets the minimum standard of protection that is guaranteed to all citizens
...
In this chapter, the federal Constitution is analyzed with
reference to state constitutional protections when relevant
...
First, a defendant can challenge the
constitutionality of a criminal statute or ordinance (from this point forward, the term statute includes
ordinances unless otherwise noted)
...
An attack on the
constitutionality of a statute can be a claim that the statute is unconstitutional on its face,
isunconstitutional as applied, or both
...
A statute is unconstitutional as applied when its enforcement is unconstitutional
...
If a statute is unconstitutional on its face, it is invalid under any
circumstances
...

A second type of constitutional protection is procedural
...
Procedure during prosecution includes, but is not limited to,
arrest, interrogation, search, filing of charges, trial, and appeal
...
The defendant can also appeal and seek to
reverse a conviction, among other remedies
...
The exception is
the right to a jury trial, which is discussed shortly
...
Bill was arrested for standing in front of a restaurant’s
entrance with a sign stating “will eat any and all leftovers
...
saylor
...
org
79

misdemeanor to “stand or sit on a public sidewalk with a sign
...
In this example, Bill can
constitutionally attack the city ordinance for violating his freedom of speech because it prohibits holding a
sign
...
Bill can also
constitutionally attack his bench trial because he has the right to a jury trial
...

Figure 3
...
Courts generally use different standards of review when
constitutional protections are at stake
...
This balancing of
interests varies depending on the right at stake
...
A statute that violates or inhibits fundamental
constitutional protections is presumptively invalid and can be upheld only if it uses the least restrictive
means possible
...
When the challenge is based on discrimination under the equal protection clause, the court may
use a lower standard, called the rational basis test
...
saylor
...
org
80

if the statute is rationally related to a legitimate government interest
...


Example of Strict Scrutiny
Review the example regarding Bill, who was arrested essentially for standing and holding a sign
...
Thus a court reviewing the
ordinance in Bill’s case will hold the ordinance presumptively invalid, unless the government can
demonstrate a compelling interest in enacting it, and that it used the least restrictive means possible
...


The Legislative Branch’s Prohibited Powers
The legislative branch cannot punish defendants without a trial or enact retroactive criminal statutes
pursuant to the Constitution’s prohibition against bill of attainderand ex post facto laws
...
” The
prohibition on bill of attainder and ex post facto laws is extended to the states in Article 1, § 10, clause 1:
“No State shall…pass any Bill of Attainder, ex post facto Law
...


[1]

Bill of Attainder
Bill of attainder is when the legislative branch of government punishes the defendant without a trial
...
Bill of attainder is usually
accomplished by a statute that targets an individual or group of individuals for some type of government
sanction
...


[2]

Example of Bill of Attainder
Brianne is a member of the Communist party
...
” Brianne could attack this
statute as a bill of attainder
...
saylor
...
org
81

subversive group,punish by eliminating career opportunities
...
Thus this statute allows the legislature to impose a sanction
without a trial in violation of the Constitution’s prohibited powers
...

There are three types of ex post facto laws
...
Second, ex post facto laws may increase the punishment for the offense after
the crime occurred
...


Example of an Ex Post Facto Law Punishing Behavior Retroactively
A state murder statute defines murder as the killing of a human being, born alive
...
The amendment
extends the application of the statute to all criminal fetus killings that occurred before the statute was
changed
...
If the state
attempts to include this language, a court can strike the statute for violating the prohibition against ex
post facto laws
...
Before the amendment, the penalty for murder
was life in prison without the possibility of parole
...
This is considered ex post facto because it
increases the punishment for the offense after the crime is committed
...
Before the amendment, the statute of limitations was fifty years
...
This is considered ex post facto because it increases the chance of conviction after the crime
is committed
...
saylor
...
org
82

Changes That Benefit a Defendant Retroactively
Changes that benefit a criminal defendant are not considered ex post facto and may be applied
retroactively
...
Thus this
amendment would be constitutional
...
Laws that raise fees or taxes after payment are civil
rather than criminal in nature
...


Figure 3
...
saylor
...
org
83

KEY TAKEAWAYS


The Constitution protects individuals from certain statutes and certain governmental
procedures
...
A statute is
unconstitutional as applied when its enforcement is unconstitutional
...
saylor
...
org
84



A court reviews a statute for constitutionality using strict scrutiny if the statute inhibits a
fundamental constitutional right
...
Occasionally, a court reviews a statute for
constitutionality under the equal protection clause using the rational basis test, which
means that the statute is constitutional if rationally related to a legitimate government
interest
...
Ex
post facto laws punish criminal defendants retroactively
...


EXERCISES
Answer the following questions
...


1
...
” Does this violate
the prohibition on ex post facto laws? Why or why not?
2
...
Doe, 538 U
...
84 (2003)
...
google
...

3
...
California, 539 U
...
607 (2003)
...
justia
...


[1] Indiana Constitution, art
...
law
...
edu/uslawdocs/inconst/art1
...

[2] U
...
v
...
S
...
justia
...
html
...
saylor
...
org
85

3
...


Define the Bill of Rights
...
Define the principle of selective incorporation
...
Distinguish between substantive and procedural due process
...
Compare void for vagueness and overbreadth
...
Ascertain the purpose of the equal protection clause as it applies to criminal laws
...
The Bill of Rights is the first ten amendments
to the Constitution
...

The Bill of Rights was originally written to apply to the federal government
...


[1]

This doctrine is

called selective incorporation, and it includes virtually all the constitutional protections in the Bill of Rights
...


The Meaning of Due Process of Law
The due process clause states, “No person shall…be deprived of life, liberty, or property, without due
process of law
...
The federal due process clause is mirrored in the Fourteenth Amendment, which
guarantees due process of law in state criminal prosecutions
...


[2]

Substantive due process protects individuals from an unreasonable loss of substantive rights, such as the
right to speak freely and the right to privacy
...
Both substantive and procedural due
processes ensure that individuals are not denied their life (capital punishment), liberty (incarceration), or
property (forfeiture) arbitrarily
...
saylor
...
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86

Void for Vagueness
Void for vagueness challenges the wording of a statute under the due process clause
...
Statutes that are not precisely drafted do not
provide notice to the public of exactly what kind of behavior is criminal
...


[3]

With a void for vagueness

challenge, the statute must be so unclear that “men of common intelligence must guess at its
meaning,”

[4]

which is an objective standard
...
” Larry, a law
enforcement officer, arrests Kathy for wearing a two-piece bathing suit at the beach because in his belief,
women should wear one-piece bathing suits
...
Kathy and Sarah can attack the statute on its face and as applied as void for
vagueness
...
Thus it
gives too much discretion to law enforcement, is subject to uneven application, and does not give Kathy,
Sarah, or the public adequate notice of what behavior is criminal
...
This challenge is different from void for vagueness, although certain statutes can be attacked
on both grounds
...


Example of an Overbroad Statute
A state legislature enacts a statute that makes it criminal to photograph “nude individuals who are under
the age of eighteen
...
While it prohibits
constitutionally unprotected conduct, such as taking obscene photographs of minors, it also criminalizes
First Amendment protectedconduct, such as photographing a nude baby
...
saylor
...
org
87

Figure 3
...
saylor
...
org
88

Saylor URL: http://www
...
org/books

Saylor
...
” Theequal protection clause applies to the state government
...


[5]

The equal protection clause prevents the state government from enacting

criminal laws that discriminate in an unreasonable and unjustified manner
...


[6]

The prohibition on governmental discrimination is not absolute; it depends on the class of persons targeted for
special treatment
...
Arbitrary means random and often includes characteristics an individual
is born with, such as race or national origin
...
Statutes containing
classifications that are not arbitrary must have a rational basis and be supported by a legitimate government
interest
...
Modern courts do not uphold criminal statutes that classify based on race
because there is no government interest in treating citizens of a different race more or less harshly
...
Criminal statutes that punish felons more severely when they have a
history of criminal behavior, for example, three-strikes statutes, are supported by the legitimate government interests
of specific and general deterrence and incapacitation
...
Thus although these statutes
discriminate, they are constitutional pursuant to the equal protection clause
...
4 The Equal Protection Clause

Saylor URL: http://www
...
org/books

Saylor
...




Selective incorporation applies most of the constitutional protections in the Bill of Rights
to the states
...
Procedural due process provides
criminal defendants with notice and an opportunity to be heard before imposition of a
criminal punishment
...
saylor
...
org
91



A statute that is void for vagueness is so imprecisely worded that it gives too much
discretion to law enforcement, is unevenly applied, and does not provide notice of what
is criminal
...




The equal protection clause prevents the state government from enacting criminal laws
that arbitrarily discriminate
...

EXERCISES
Answer the following questions
...


1
...
” Is this ordinance
constitutional? Why or why not?
2
...
Goguen, 415 U
...
566 (1974)
...
google
...

3
...
City of Rockford, 408 U
...
104 (1972)
...
Did the Court hold that this ordinance was constitutional?
Why or why not? The case is available at this
link: http://supreme
...
com/us/408/104/case
...

4
...
Texas, 539 U
...

558 (2003)
...
law
...
edu/supct/html/02-102
...
html
...
Louisiana, 391 U
...
145 (1968), accessed October 20,
2010,http://caselaw
...
findlaw
...
pl?court=us&vol=391&invol=145
...
saylor
...
org
92

[2] Missouri Constitution, art
...
sos
...
gov/pubs/missouri_constitution
...

[3] U
...
v
...
2d 250 (1989), accessed October 6,
2010,http://scholar
...
com/scholar_case?case=12667022335593752485&hl=en&as_sdt=2&as_vis=1&oi=scho
larr
...
General Construction Co
...
S
...
justia
...
html
...
I, § 7, accessed October 4, 2010,http://www
...
ca
...
const/
...

[6] Bolling v
...
S
...
google
...

[7] Loving v
...
S
...
law
...
edu/supct/html/historics/USSC_CR_0388_0001_ZO
...


3
...


Define speech under the First Amendment
...
Identify five types of speech that can be governmentally regulated in spite of the First
Amendment
...
Ascertain the constitutional parameters for statutes that criminalize speech
...
”
Although this language specifically targets federal Congress, the First Amendment has been held applicable to the
states by virtue of selective incorporation
...


[1]

Most state constitutions have a similar provision protecting freedom of

[2]

Freedom of speech has been the focus of countless judicial opinions
...
First Amendment speech also includes expressive conduct such as dressing
a certain way,

[3]

flag burning,

[4]

and cross burning
...
saylor
...
org
93

Exceptions to the First Amendment’s Protection of Free Speech
In general, courts have examined the history of the Constitution and the policy supporting freedom of
speech when creating exceptions to its coverage
...


[6]

For the purpose of brevity, this book reviews the constitutional exceptions to

free speech in statutes criminalizing fighting words, incitement to riot, hate crimes,
and obscenity
...
5 The First Amendment

Saylor URL: http://www
...
org/books

Saylor
...


[7]

This includes fighting words, “those which by their

very utterance inflict injury or tend to incite an immediate breach of the peace
...
Modern US Supreme Court decisions indicate a tendency to favor freedom of speech
over the government’s interest in regulating fighting words, and many fighting words statutes have been
deemed unconstitutional under the First Amendment or void for vagueness and overbreadth under the
Fifth Amendment and Fourteenth Amendment due process clause
...
saylor
...
org
95

Example of an Unconstitutional Fighting Words Statute
Georgia enacted the following criminal statute: “Any person who shall, without provocation, use to or of
another, and in his presence…opprobrious words or abusive language, tending to cause a breach of the
peace…shall be guilty of a misdemeanor” (Ga
...
The US Supreme Court determined that
this statute was overbroad, void for vagueness, and unconstitutional under the First Amendment
...
Thus the statute is overbroad and does not restrict its prohibition to imminent harm
...
As the Court stated, this language “licenses the jury to create its own standard in
each case
...
Similar to fighting
words, an incitement to riot statute must prohibit imminent lawless action
...


Example of an Unconstitutional Incitement to Riot Statute
Ohio enacted a statute that criminalized “advocat[ing]…the duty, necessity, or propriety of crime,
sabotage, violence, or unlawful methods of terrorism as a means of accomplishing industrial or political
reform” and “voluntarily assembl[ing] with any society, group or assemblage of persons formed to teach
or advocate the doctrines of criminal syndicalism” (Ohio Rev
...
§ 2923
...
A Ku Klux Klan
leader was convicted under the statute after the media broadcast films of him leading a KKK meeting
...
[Footnote 4] Such a statute falls within the
condemnation of the First and Fourteenth Amendments
...
When hate crimes statutes
criminalize speech, including expressive conduct, a First Amendment analysis is appropriate
...
saylor
...
org
96

crimes statutes enhance a penalty for criminal conduct that is not expressive, the First Amendment is not
applicable
...
These
classifications are listed in the statute and can include race, ethnicity, gender, sexual orientation, or
religion
...


[15]

This can include speech and expressive conduct such as threats of imminent

bodily injury, death, or cross burning
...

Hate crimes statutes that criminalize the content of speech, like a prejudicial opinionabout a certain race,
ethnicity, gender, sexual orientation, or religion are unconstitutional under the First
Amendment
...

Although this type of speech can stir up anger, resentment, and possibly trigger a violent situation, the
First Amendment protects content-based speech from governmental regulation without strict scrutiny
exposing a compelling government interest
...
Paul, Minnesota, enacted the Bias-Motivated Crime Ordinance, which prohibited the display of a
symbol that a person knows or has reason to know “arouses anger, alarm or resentment in others on the
basis of race, color, creed, religion or gender” (Ordinance, St
...
, Legis
...
02 (1990))
...
A
...
v
...
Paul, 505 U
...
377 (1992), the US Supreme Court held that this ordinance was
unconstitutional on its face because regulation was based on the content of speech, with no additional
requirement for imminent lawless action
...
Instead, the Court determined that the statute prohibited the use of
specific types of fighting words, for example, words that promote racial hatred, and this is impermissible
as viewpoint-based censorship
...
”

[17]

Saylor URL: http://www
...
org/books

Saylor
...
Code
Ann
...
2-423)
...
The Court stated, “Unlike the statute at issue in R
...
V
...
’ Id
...
” It does not matter whether an individual burns a cross with intent to intimidate because of the
victim’s race, gender, or religion, or because of the victim’s “political affiliation, union membership, or
homosexuality
...
Obscenity is usually conveyed by speech, such as words,
pictures, photographs, songs, videos, and live performances
...


[19]

In Miller v
...
S
...
Generally, speech is obscene if (1) the average
person, applying contemporary community standards would find that the work, taken as a whole, appeals
to the prurient interest in sex; (2) it depicts sexual conduct specifically defined by the applicable state law
in a patently offensive way; and (3) it lacks serious literary, artistic, political, or scientific value
...
Georgia, 418 U
...
153 (1974), the US Supreme Court viewed the filmCarnal Knowledge to
determine whether the defendant could be constitutionally convicted under an obscenity statute for
showing it at a local theater
...
Thus although a
jury convicted the defendant after viewing the film, the Court reversed the conviction, stating that the film
does not constitute the hard-core pornography that the three-part test for obscenity isolates from the First
Amendment’s protection
...
, at 35
...
saylor
...
org
98

Nude Dancing
Statutes that regulate nude dancing have also been attacked under the First Amendment
...


[22]

Table 3
...
S
...
§ 48, which criminalizes commercial creation, sale, or possession of a visual or
auditory depiction in which a living animal is intentionally maimed, mutilated, tortured, wounded, or
killed, if that conduct violates federal or state law where the creation, sale, or possession takes place
...
Stevens, 552 U
...
442 (2010), the US Supreme Court held that this statute is facially
overbroad and violative of the First Amendment
...
In addition, the Court stated that the government’s interest in censoring this type of
material is not compelling enough to outweigh the prohibition on protected speech and that the statute
on its face included material that may have redeeming social value
...
law
...
edu/supct/html/08-769
...
html
...
saylor
...
org
99

1
...
What are some possible consequences of criminalizing this type of speech?
Check your answers to both questions using the answer key at the end of the chapter
...
Expressive conduct, such as dressing a certain way,
flag burning, and cross burning, is also considered First Amendment speech
...




Statutes that prohibit fighting words and incitement to riot must be narrowly drafted to
include only speech that incites imminent unlawful action, not future harm or general
advocacy
...
Statutes that prohibit obscenity
must target speech that appeals to a prurient interest in sex, depicts sexual conduct in a
patently offensive way, and has little or no literary, artistic, political, or scientific value
...

EXERCISES
Answer the following questions
...


1
...
” To prove race-biased intent, it is frequently necessary to admit
evidence of the defendant’s statements indicating racial hatred and intolerance
...
Mitchell, 508 U
...
47 (1993)
...
law
...
edu/supct/html/92-515
...
html
...
Read Reno v
...
Liberties Union, 521 U
...
844 (1997)
...
Why
did the US Supreme Court hold that certain provisions of the federal Communications
Saylor URL: http://www
...
org/books

Saylor
...
lp
...
com/scripts/getcase
...

3
...
Humanitarian Law Project, 130 S
...
2705 (2010)
...
google
...


[1] Gitlow v
...
S
...
justia
...
html
...
I, § 4, accessed October 9, 2010,http://www
...
gov/commission/lrb/con1
...

[3] Tinker v
...
S
...
justia
...
html
...
Johnson, 491 U
...
397 (1989), accessed October 5,
2010,http://caselaw
...
findlaw
...
pl?court=us&vol=491&invol=397
...
A
...
v
...
Paul, 505 U
...
377 (1992), accessed October 5,
2010,http://caselaw
...
findlaw
...
pl?court=us&vol=505&invol=377
...
of California, Inc
...
FCC, 492 U
...
115 (1989), accessed October 5,
2010,http://supreme
...
com/us/492/115/case
...

[7] Schenck v
...
S
...
S
...
justia
...
html
...
New Hampshire, 315 U
...
568, 572 (1942), accessed October 6,
2010,http://caselaw
...
findlaw
...
pl?friend=wisbar&navby=case&court=us&vol=315&invol=568&pageno=574
...
City of New Orleans, 415 U
...
130 (1974), accessed October 7,
2010,http://caselaw
...
findlaw
...
pl?navby=case&court=us&vol=415&invol=130
...
Wilson, 405 U
...
518 (1972), accessed October 7,
2010,http://scholar
...
com/scholar_case?case=3138831397470557431&hl=en&as_sdt=2&as_vis=1&oi=schol
arr
...
saylor
...
org
101

[11] Gooding v
...
S
...
Lowry, 301 U
...
242, 263 (1937), accessed
October 7,
2010, http://scholar
...
com/scholar_case?case=3138831397470557431&hl=en&as_sdt=2&as_vis=1&oi=schol
arr
...
Ohio, 395 U
...
444 (1969), accessed October 6,
2010,http://supreme
...
com/us/395/444/case
...

[13] Brandenburg v
...
S
...
justia
...
html
...
Mitchell, 508 U
...
47 (1993), accessed October 7,
2010,http://www
...
cornell
...
ZO
...

[15] Virginia v
...
S
...
lp
...
com/scripts/getcase
...

[16] R
...
V
...
St
...
S
...
lp
...
com/scripts/getcase
...

[17] R
...
V
...
St
...
S
...
lp
...
com/scripts/getcase
...

[18] Virginia v
...
S
...
lp
...
com/scripts/getcase
...

[19] Roth v
...
S
...
justia
...
html
...
California, 413 U
...
15 (1973), accessed October 7,
2010,http://scholar
...
com/scholar_case?case=287180442152313659&hl=en&as_sdt=2&as_vis=1&oi=scholar
r
...
Georgia, 418 U
...
153, 161 (1974), accessed October 7,
2010,http://caselaw
...
findlaw
...
pl?navby=case&court=us&vol=418&invol=153
...
Pap’s A
...
, 529 U
...
277 (2000), accessed October 11,
2010,http://caselaw
...
findlaw
...
pl?court=us&vol=000&invol=98-1161
...
4 The Right to Privacy
LEARNING OBJECTIVES
Saylor URL: http://www
...
org/books

Saylor
...


Ascertain the constitutional amendments that support a right to privacy
...
Ascertain three constitutionally protected individual interests that are included in the
right to privacy
...
However, several of the amendments in the Bill of Rights
ensure and protect individual decision making and autonomy from governmental intrusion
...


[1]

This right is

considered fundamental and subject to strict scrutiny; only a compelling government interest can justify a statute
encroaching on its protections
...


[2]

The Constitutional Amendments Protecting Privacy
US Supreme Court precedent has held that the right to privacy comes from the First, Third, Fourth, Fifth,
Ninth, and Fourteenth Amendments
...
The Third Amendment prohibits the government
from forcing individuals to quarter, house, or feed soldiers
...
The Fifth
and Fourteenth Amendments provide due process of law before the government can deprive an individual
of life, liberty, or property
...
Taken together, these amendments indicate that the Constitution was written
to erect a barrier between individuals and an overly intrusive and regulatory government
...


The Right to Use Birth Control
The right to privacy was first established in the US Supreme Court case of Griswold v
...
S
...
In Griswold, the defendants, Planned Parenthood employees, were convicted of
prescribing birth control as accessories under two Connecticut statutes that criminalized the use of birth
control
...


[3]

The Court stated that marital privacy, especially, deserved the utmost protection from

governmental intrusion
...


Saylor URL: http://www
...
org/books

Saylor
...
Wade, 410 U
...
113
(1973)
...
In the aftermath of
the Roe decision, more than half of the nation’s state laws criminalizing abortion became unconstitutional
and unenforceable
...
However, during the first trimester, health concerns from abortion do not justify the erosion of a
woman’s right to make the abortion decision
...
Specifically, the Court held
that during the first trimester of pregnancy, the abortion decision must be left to the pregnant woman and
her attending physician
...


[6]

The Right to Consensual Sexual Relations
Even in the aftermath of Roe v
...
InBowers v
...
S
...


[7]

The

Court stated that there is no fundamental right to engage in sodomy and that the history of protecting
marriage and family relationships should not be extended in this fashion
...
Texas, 539 U
...
558 (2003)
...

The Lawrencedecision rested on the due process clause of the Fourteenth Amendment
...
The Court thereafter struck down the Texas sodomy statute because it was not
justified by a sufficient government interest
...
saylor
...
org
104

Example of a Right to Privacy Analysis
Most states have statutes criminalizing consensual incest, which is sexual intercourse between family
members who cannot legally marry
...
If the court finds that the government interest is compelling,
it can uphold the statute as long as it is not vague or overbroad
...
6 The Right to Privacy

Saylor URL: http://www
...
org/books

Saylor
...




The right to privacy in the Constitution protects an individual’s right to use
contraceptives, to receive an abortion through the first trimester, and to engage in
consensual sexual relations
...
Check your answers using the answer key at the end of the chapter
...
saylor
...
org
106

1
...
An
inmate is prosecuted under the statute
...
onecle
...
html
...
Read Planned Parenthood v
...
S
...
In Casey, Pennsylvania modified
its abortion statute to include a twenty-four-hour waiting period and informed consent
for minors
...
law
...
edu/supct/html/91-744
...
html
...
Connecticut, 381 U
...
479 (1965), accessed October 9,
2010,http://caselaw
...
findlaw
...
pl?court=us&vol=381&invol=479
...
I, § 6, accessed October 9, 2010,http://hawaii
...
html
...
Connecticut, 381 U
...
479, 483 (1965), accessed October 9,
2010,http://caselaw
...
findlaw
...
pl?court=us&vol=381&invol=479
...
Wade, 410 U
...
113, 162 (1973), accessed October 10,
2010,http://www
...
cornell
...
html
...
Wade, 410 U
...
113, 164 (1973), accessed October 10,
2010,http://www
...
cornell
...
html
...
Carhart, 127 S
...
1610 (2007), accessed October 11,
2010,http://scholar
...
com/scholar_case?case=7079370668659431881&hl=en&as_sdt=2&as_vis=1&oi=schol
arr
...
Hardwick, 478 U
...
186 (1986), accessed October 11,
2010,http://caselaw
...
findlaw
...
pl?court=us&vol=478&invol=186
...
Hardwick, 478 U
...
186, 194–195 (1986), accessed October 11,
2010,http://caselaw
...
findlaw
...
pl?court=us&vol=478&invol=186
...
Texas, 539 U
...
558 (2003), accessed October 11,
2010,http://caselaw
...
findlaw
...
pl?court=us&vol=000&invol=02-102
...
saylor
...
org
107

3
...


Ascertain the constitutional parameters of an individual’s right to possess a handgun
under the Second Amendment
...
The Second Amendment
provides “[a] well regulated Militia, being necessary to the security of a free state, the right of the people to keep and
bear Arms, shall not be infringed
...


[1]

In 2008, the US Supreme

Court explored the Second Amendment and its effect on weapons possession in a case attacking Washington, DC,
firearms legislation
...
Heller, 128 S
...
2783 (2008), the Court affirmed the Court of Appeals for the D
...

Circuit in striking provisions of the Firearms Control Regulations Act of 1975
...
Although the District Court held that the Second Amendment applies only to the
militia, the US Supreme Court emphasized that the Second Amendment is exercised individually and belongs to all
Americans
...
The Hellercase is unprecedented and is the first to address
individual handgun possession under the Second Amendment
...
The Heller decision also fails to extend the Second Amendment’s
protections to the states because Washington, DC, is a federal enclave
...
Chicago, 130 S
...
3020 (2010), the US Supreme Court revisited the gun possession issue by
reviewing and rejecting as unconstitutional a handgun ban in the city of Chicago, Illinois
...
However, McDonald did not expand the
ruling in Heller in other ways and reemphasized the Heller exceptions of firearms restrictions on felons, the mentally
ill, firearm possession in or near schools or government buildings, and the commercial sale of firearms
...
saylor
...
org
108

Example of an Appropriate Restriction on Firearms
Dirk is a public middle-school janitor
...
Dirk wants to keep a
handgun in the outbuilding, for protection
...
Modern US Supreme Court precedent holds that the Second Amendment protects an individual’s
right to possess a handgun in the home for self-defense
...
Unless newer precedent expands the ruling to
include firearm possession near schools, the statute in Dirk’s state is constitutional
...
7 The Second Amendment

Saylor URL: http://www
...
org/books

Saylor
...
This
protection does not cover felons, the mentally ill, firearm possession near schools and
government buildings, or the commercial sale of firearms
...
Check your answers using the answer key at the end of the chapter
...
A state court order forbids the defendant from possessing a handgun while on
probation
...
saylor
...
org
110

officer
...
Read Lewis v
...
S
...
S
...
In Lewis, the defendant, a felon, was convicted
under a federal statute for possession of a firearm by a convicted felon
...
The defendant never sought a pardon or reversal
of his conviction for the original felony on appeal
...
google
...

3
...
S
...
Lopez, 514 U
...
549 (1995)
...
If a state enacts a similar statute,
would this be constitutional under the Second Amendment? The case is available at this
link: http://scholar
...
com/scholar_case?case=18310045251039502778&hl=en&as_
sdt=2&as_vis=1&oi=scholarr
...
law
...
edu/volokh/beararms/statecon
...

[2] District of Columbia v
...
Ct
...
law
...
edu/supct/html/07-290
...
html
...
6 Excessive Punishment
LEARNING OBJECTIVES
1
...


Saylor URL: http://www
...
org/books

Saylor
...
Identify the most prevalent method of execution pursuant to the death penalty
...
Ascertain crime(s) that merit capital punishment
...
Identify three classifications of criminal defendants who cannot be constitutionally
punished by execution
...
Define three-strikes laws, and ascertain if they constitute cruel and unusual punishment
pursuant to the Eighth Amendment
...
Ascertain the constitutionality of sentencing enhancements under the Sixth Amendment
right to a jury trial
...
” State
constitutions often have similar provisions
...
Another facet of excessive punishment is a criminal sentencing enhancement
that is based on facts not found beyond a reasonable doubt by a jury
...
”
In this section, three issues are analyzed and discussed: the infliction of cruel punishment, a criminal sentence that
is too severe, and a criminal sentence that is invalid under the right to a jury trial
...
In particular, cases asserting that a criminal
punishment is inhumane often focus oncapital punishment, which is the death penalty
...
American
death penalty law is influenced by the British because the colonists brought English common-law
principles, including capital punishment, with them to the New World
...
Methods of execution and capital crimes varied from colony to colony
...
saylor
...
org
112

eliminate the death penalty for all crimes except treason
...
Executions were at an
[4]

all-time high in the 1930s
...
Georgia, 408 U
...

238 (1972), the US Supreme Court held that Georgia’s death penalty statute, which gave the jury complete
discretion to sentence a criminal defendant to death, was arbitrary and therefore authorized cruel and
unusual punishment in violation of the Eighth Amendment
...
Later, in 1976, the US Supreme Court case of Gregg v
...
S
...
Gregg also affirmed the death penalty’s constitutionality under the Eighth
Amendment
...


[5]

Inhumane Capital Punishment
A claim that capital punishment is inhumane and therefore unconstitutional under the Eighth
Amendment focuses on the method of execution
...
At the time of this writing, the law is in a state of flux as to which methods of
execution are constitutional because many state and federal decisions have stricken virtually every
method available
...
Most states that authorize the death penalty use lethal
injection as the primary method of execution
...
Rees, 128 S
...
1520 (2008), held that Kentucky’s four-drug lethal injection procedure
was not cruel and unusual punishment under the Eighth Amendment
...


[6]

It is impossible to predict the future of death penalty methodology under

the Eighth Amendment because each case will be decided based on the circumstances presented
...


Saylor URL: http://www
...
org/books

Saylor
...
Disproportionate punishment asserts that a criminal punishment
is too severe for the crime
...


Capital Punishment as Disproportionate
Capital punishment can be disproportionate because it is too severe for the crime or because it is too
severe for the criminal defendant
...

Although the states and the federal government have designated many capital crimes that may not result
in death, for example, treason that does not lead to death, the US Supreme Court has confirmed that the
death penalty is too severe for most crimes
...
Georgia, 433 U
...
584 (1977), the Court held that
capital punishment is disproportionate for the crime of raping an adult woman
...
Louisiana, 128 S
...
2641 (2008), the Court extended the disproportionality principle to
invalidate the death penalty for child rape
...
The only crime against
an individual that currently merits the death penalty is criminal homicide, which is the unlawful killing of
one human being by another
...


Figure 3
...
saylor
...
org
114

Saylor URL: http://www
...
org/books

Saylor
...
Recent cases hold that the death penalty is cruel and unusual
punishment for a criminal defendant who was ajuvenile when the crime was committed,
is mentally ill,

[8]

or has anintellectual disability

[9]

[7]

who

at the time of the scheduled execution
...
Mental illness could cover a variety of disorders, but the US
Supreme Court has held that a criminal defendant has a constitutional right to a determination of sanity
before execution
...


[11]

However, this standard is broad, so states vary in their

legislative definitions of this classification
...
The state death penalty statute specifies death by decapitation
...
The
state schedules the execution anyway
...
The death penalty
statute is alsodisproportionate to the crime because execution is not a constitutional punishment for the
crime of rape
...


Disproportionate Punishment Pursuant to Three-Strikes Laws
California was the first state to enact a “three strikes and you’re out” law
...


[14]

To date, California’s three-strikes law is the toughest in the nation; it

mandates a minimum twenty-five-year- to life sentence for felons convicted of a third strike
...
saylor
...
org
116

offender
...


[15]

Three-strikes statutes vary, but those most likely to be attacked as disproportionate count any felony as a
strike after an initial serious or violent felony
...
However, the US Supreme Court
has upheld lengthy prison sentences under three-strikes statutes for relatively minor second or third
offenses, holding that they are not cruel and unusual punishment under the Eighth Amendment
...
9 The Eighth Amendment

Sentencing that Violates the Right to a Jury Trial
Modern US Supreme Court precedent has expanded the jury’s role in sentencing pursuant to the Sixth Amendment
...
saylor
...
org
117

sentencing and the roles of the judge and jury is necessary to a fundamental understanding of this important trial
right, as is set forth in the following section
...
The trier of fact in a criminal prosecution is almost always a jury because of the right to a
jury trial in the Sixth Amendment
...
Although the jury determines innocence or guilt
during a jury trial, the verdict defines the end of their role as the trier of fact, and the judge sets the
sentence
...

Generally, criminal sentencing takes place after the trial
...
For many years, judges have had almost exclusive control of
sentencing
...
For example, a judge is bound by a jury determination that the defendant
used a weapon when committing an armed robbery
...


Sentencing Enhancement by Judges
Until recently, judges could use evidence received at the sentencing hearing to enhance a sentence beyond
the statutory maximum by making a determination of the new facts to a preponderance of evidence
...
New Jersey, 530 U
...
466 (2000), the US Supreme Court held that the right to a
jury trial prohibits judges from enhancing criminal sentences beyond the statutory maximum based on
facts not determined by a jury beyond a reasonable doubt
...
Although the jury did not determine that the defendant’s crime
was a hate crime, the judge accepted new evidence at sentencing that indicated the defendant’s shooting
into a residence was racially motivated
...
saylor
...
org
118

which upheld the sentencing procedure
...
The Court based its holding on the Sixth Amendment right to a jury trial as incorporated
and applied to the states through the Fourteenth Amendment due process clause
...
S
...
Booker, 543 U
...
220
(2005)
...
The US Supreme Court ruled that the enhancement was invalid under the Sixth Amendment
right to a jury trial and held that the US Sentencing Guidelines would be advisory only, never
mandatory
...
Washington, 542 U
...
296 (2004), which invalidated a
similar Washington State sentencing procedure
...
This premise applies in federal and state courts
and also to guilty pleas rather than jury verdicts
...
The maximum sentence for simple kidnapping
is five years
...
The victim did not testify at trial
...
The judge thereafter enhances Ross’s sentence to eight
years, based on a statutory sentencing enhancement of three years for “deliberate cruelty inflicted during
the commission of a crime
...

Under the Sixth Amendment right to a jury trial, the jury must find deliberate cruelty beyond a
reasonable doubt
...

Figure 3
...
saylor
...
org
119

Sentencing that Violates the Right to a Jury Trial
Modern US Supreme Court precedent has expanded the jury’s role in sentencing pursuant to the Sixth Amendment
...


The Role of the Judge and Jury in Sentencing Fact-Finding
As stated in Chapter 2 "The Legal System in the United States", the trier of fact decides the facts and
renders a decision on innocence or guilt using beyond a reasonable doubt as the standard for the
burden of proof
...
Occasionally, the defendant waives the right to a jury trial and has a
bench trial with a judge playing the role of trier of fact
...
saylor
...
org
120

during a jury trial, the verdict defines the end of their role as the trier of fact, and the judge sets the
sentence
...

Generally, criminal sentencing takes place after the trial
...
For many years, judges have had almost exclusive control of
sentencing
...
For example, a judge is bound by a jury determination that the defendant
used a weapon when committing an armed robbery
...


Sentencing Enhancement by Judges
Until recently, judges could use evidence received at the sentencing hearing to enhance a sentence beyond
the statutory maximum by making a determination of the new facts to a preponderance of evidence
...
New Jersey, 530 U
...
466 (2000), the US Supreme Court held that the right to a
jury trial prohibits judges from enhancing criminal sentences beyond the statutory maximum based on
facts not determined by a jury beyond a reasonable doubt
...
Although the jury did not determine that the defendant’s crime
was a hate crime, the judge accepted new evidence at sentencing that indicated the defendant’s shooting
into a residence was racially motivated
...
The Court held that other than evidence of a prior conviction, a
judge cannot enhance a defendant’s sentence beyond the statutory maximum unless there has been a
factual determination by a jury beyond a reasonable doubt of the facts supporting the sentencing
enhancement
...

Post-Apprendi, this holding was extended to federal sentencing guidelines in U
...
v
...
S
...
In Booker, a federal judge enhanced a sentence following mandatory US Sentencing Guidelines,
which permitted judges to find the sentencing enhancement facts using the preponderance of evidence

Saylor URL: http://www
...
org/books

Saylor
...
The US Supreme Court ruled that the enhancement was invalid under the Sixth Amendment
right to a jury trial and held that the US Sentencing Guidelines would be advisory only, never
mandatory
...
Washington, 542 U
...
296 (2004), which invalidated a
similar Washington State sentencing procedure
...
This premise applies in federal and state courts
and also to guilty pleas rather than jury verdicts
...
The maximum sentence for simple kidnapping
is five years
...
The victim did not testify at trial
...
The judge thereafter enhances Ross’s sentence to eight
years, based on a statutory sentencing enhancement of three years for “deliberate cruelty inflicted during
the commission of a crime
...

Under the Sixth Amendment right to a jury trial, the jury must find deliberate cruelty beyond a
reasonable doubt
...

Figure 3
...
saylor
...
org
122

Figure 3
...
saylor
...
org
123

KEY TAKEAWAYS
Saylor URL: http://www
...
org/books

Saylor
...
A
disproportionate punishment punishes a defendant too severely for the crime he or she
committed
...




Criminal homicide is the only crime against an individual that merits capital punishment
...




Three-strikes laws punish criminal defendants more severely for committing a felony
after they have committed one or two serious or violent felonies
...




Sentencing enhancements beyond the statutory maximum are unconstitutional unless
they are based on facts determined by a jury beyond a reasonable doubt under the Sixth
Amendment right to a jury trial
...
Check your answers using the answer key at the end of the chapter
...
Andrew is sentenced to death for torture
...

Pursuant to this statute, Andrew will be tortured to death
...
Read Lockyer v
...
S
...
What was the defendant’s sentence
in Lockyer? What was the defendant’s crime? Did the US Supreme Court hold that the
defendant’s sentence was constitutional under the Eighth Amendment? The case is
available at this
link: http://scholar
...
com/scholar_case?case=1810564739536423477&hl=en&as_s
dt=2&as_vis=1&oi=scholarr
...
saylor
...
org
125

3
...
Gomez, 77 F
...
Did the US Court of Appeals for the Ninth
Circuit hold that the gas chamber procedure in California was constitutional under the
Eighth Amendment? The case is available at this
link:http://scholar
...
com/scholar_case?case=26906922262871934&hl=en&as_sdt=
2&as_vis=1&oi=scholarr
...
Read Gall v
...
S
...
Ct
...
In Gall, the federal judge departed from the US
Sentencing Guidelines and imposed a sentence of probation because the defendant had
reformed and rejected his criminal lifestyle
...
google
...
+U
...
&hl=en&as_sdt=2,5&as_vis=1
...
I, § 13, accessed October 22,
2010,http://www
...
legis
...
tx
...
1
...

[2] Death Penalty Information Center, “Introduction to the Death Penalty,” deathpenaltyinfo
...
deathpenaltyinfo
...

[3] Death Penalty Information Center, “Introduction to the Death Penalty,” deathpenaltyinfo
...
deathpenaltyinfo
...

[4] Death Penalty Information Center, “Introduction to the Death Penalty,” deathpenaltyinfo
...
deathpenaltyinfo
...

[5] Death Penalty Information Center, “States with and without the Death Penalty,” deathpenaltyinfo
...
deathpenaltyinfo
...

[6] Death Penalty Information Center, “Lethal Injection: Constitutional Issue,” deathpenaltyinfo
...
deathpenaltyinfo
...

[7] Roper v
...
S
...
google
...


Saylor URL: http://www
...
org/books

Saylor
...
Wainwright, 477 U
...
399 (1986), accessed October 15,
2010,http://scholar
...
com/scholar_case?case=7904262174469084060&hl=en&as_sdt=2&as_vis=1&oi=schol
arr
...
Virginia, 536 U
...
304 (2002), accessed October 15,
2010,http://scholar
...
com/scholar_case?case=2043469055777796288&hl=en&as_sdt=2&as_vis=1&oi=schol
arr
...
Wainwright, 477 U
...
399, 401 (1986), accessed October 15,
2010,http://scholar
...
com/scholar_case?case=7904262174469084060&hl=en&as_sdt=2&as_vis=1&oi=schol
arr
...
Virginia, 536 U
...
304, 318 (2002), accessed October 15,
2010,http://scholar
...
com/scholar_case?case=2043469055777796288&hl=en&as_sdt=2&as_vis=1&oi=schol
arr
...
org website, accessed October 14, 2010,http://www
...
org/statestatutes-prohibiting-death-penalty-people-mental-retardation
...
Penal Code § 667, accessed October 15, 2010,http://www
...
org/tslaw
...

[14] Cal
...
threestrikes
...
html
...
org website, accessed
October 15, 2010, http://www
...
org/3strikestates
...

[16] Ewing v
...
S
...
lp
...
com/scripts/getcase
...

[17] Blakely v
...
S
...
law
...
edu/supct/html/02-1632
...
html
...
7 End-of-Chapter Material
Summary
The US Constitution protects criminal defendants from certain statutes and procedures
...
Statutes
can be unconstitutional as written or as enforced and must be supported by a sufficient government

Saylor URL: http://www
...
org/books

Saylor
...
Statutes that punish without a trial (bills of attainder) or criminal statutes that are applied
retroactively (ex post facto) are unconstitutional under Article 1 §§ 9 and 10
...

The due process clause prohibits the government from taking an individual’s life, liberty, or property
arbitrarily, without notice and an opportunity to be heard
...
The Fifth Amendment due process
clause applies to the federal government, and the Fourteenth Amendment due process clause applies to
the states
...
Rights incorporated and applied to the states
are the right to free speech, the right to privacy, the right to bear arms, the right to be free from cruel and
unusual punishment, and the right to a jury trial
...

The First Amendment protects speech, expression, and expressive conduct from being criminalized
without a compelling government interest and a statute that uses the least restrictive means possible
...
The First, Third, Fourth, Fifth, Ninth, and Fourteenth
Amendments also create a right to privacy that prevents the government from criminalizing the use of
birth control, abortion, or consensual sexual relations
...
This right is not extended to convicted felons, the mentally ill, commercial sale of firearms, and
firearm possession near schools and government buildings
...
The Sixth Amendment ensures that all facts used
to extend a criminal defendant’s sentencing beyond the statutory maximum must be determined by a jury
beyond a reasonable doubt
...
Your state’s legislature has hired you to analyze some proposed
statutes to ensure that they are constitutional
...
saylor
...
org
128

(1) which part of the constitution is relevant, (2) whether the statute is constitutional, and (3)
your reasoning
...


1
...
Is
the proposed statute constitutional?
2
...
Is
the proposed statute constitutional?
3
...
Is the proposed statute constitutional?
4
...
Is the proposed statute
constitutional?
5
...
Is the proposed statute constitutional?

Cases of Interest


South Dakota v
...
W
...
lexisone
...
ecea
...
eddQ&searchFlag=y&l1loc=FCL
OW
...
Martinez, 130 S
...
2971 (2010), discusses the First
Amendment: http://scholar
...
com/scholar_case?case=10772194664096336702&
q= Christian+Legal+Society+v
...




U
...
v
...
3d 1198 (2010), discusses freedom of
speech:http://scholar
...
com/scholar_case?case=3332503989513069132&q=
U
...
+v
...




Snyder v
...
09-751 (2011), discusses the First
Amendment:http://www
...
cornell
...
ZO
...


Saylor URL: http://www
...
org/books

Saylor
...
California, 370 U
...
660 (1962), discusses cruel and unusual
punishment: http://caselaw
...
findlaw
...
pl?court=us&vol=370&invo
l=660
...
law
...
edu/faculty/projects/ftrials/conlaw/incorp
...
huffingtonpost
...
html



Ohio abortion bill: http://abcnews
...
com/Politics/ohio-heartbeat-bill-abortion-pavesroe-wade -challenge/story?id=12876224



Second Amendment and gun
control:http://usgovinfo
...
com/od/guncontrol/Gun_Control
_and_the_Second_Amendment
...
correctionsone
...
firstamendmentcenter
...
aspx



Hate crimes: http://www
...
gov/aboutus/investigate/civilrights/hate_crimes/hate_crimes



Death penalty information: http://www
...
org

Statistics of Interest


Hate crimes in the United States:http://www2
...
gov/ucr/hc2009/index
...
deathpenaltyinfo
...
1 "Applicability of the Constitution"

Saylor URL: http://www
...
org/books

Saylor
...
The public university can impose a retroactive tuition because this is not
acriminal statute or procedure and does not violate the prohibition against ex post facto
laws
...
In Smith, the US Supreme Court held that Alaska’s Megan’s Law statute was
not criminal, but part of a civil regulatory scheme, and thus did not violate the
prohibition against ex post facto laws
...
In Stogner, the US Supreme Court held that California cannot eliminate a statute of
limitations and thereafter prosecute defendants who would have been time-barred from
prosecution because this action violates the prohibition against ex post facto laws
...


Answers to Exercises
From Section 3
...
The ordinance is void for vagueness and overbroad, violating the First Amendment and
the Fourteenth Amendment due process clause
...
The
ordinance is overbroad because prohibiting all individuals from wearing gang attire
probably includes First Amendment constitutionally protected conduct, such as wearing
a gang-related Halloween costume or wearing a costume to act in a play or movie
...
In Smith, the US Supreme Court held that the flag misuse statute was void for vagueness
...
Indeed, because display of the flag is so common and takes so many forms, changing
from one generation to another and often difficult to distinguish in principle, a legislature should define
with some care the flag behavior it intends to outlaw
...
In Grayned, the US Supreme Court held that the ordinance was not void for vagueness
because, with fair warning, it criminalized actual or imminent and willful interference
with school activity
...
saylor
...
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131

prohibited only acts that “materially interfered with schoolwork,” which is not protected
by the First Amendment
...
Justice O’Connor said that the Texas sodomy statute was unconstitutional pursuant to
the equal protection clause
...


Answers to Exercises
From Section 3
...
The statute does not violate the First Amendment’s free speech protection
because battery is not speech and is not covered by the First Amendment
...
The US Supreme Court held that the provisions were unconstitutional under the First
Amendment because they were vague and content based
...

3
...
S
...
§ 2339B (a) (1) as applied
...


Answers to Exercises
From Section 3
...
The court will probably analyze whether the statute is constitutional under theright to
privacy and the equal protection clause
...
The state must demonstrate
a compelling state interest in regulating sex in prison
...
Under
the equal protection clause analysis, the state has to show a legitimate state interest
pursuant to the rational basis test because the category targeted—inmates in prison—
isrational, not arbitrary
...
The Court upheld the statute, even though this case was post-Roe v
...
The Court
reaffirmed Roe, but imposed a new standard for abortion laws
...
saylor
...
org
132

abortion
...
The Court did strike a separate
requirement, which mandated husband notification before an abortion could take place
...
5 "The Right to Bear Arms"

1
...
The recent US Supreme Court precedent
in Hellerand McDonald both exclude convicted felons from their holdings
...

2
...

3
...


Answers to Exercises
From Section 3
...
The eye-for-an-eye statute is unconstitutional because it mandates an inhumane
punishment under the Eighth Amendment
...

2
...
The defendant’s crime(s) were stealing five
videotapes from Kmart worth $84
...
84 on another, with two previous strikes
...


Saylor URL: http://www
...
org/books

Saylor
...
The US Court of Appeals for the Ninth Circuit held that the gas chamber under
California’s protocol was cruel and unusual punishment in violation of the Eighth
Amendment
...
The US Supreme Court reversed the US Court of Appeals for the Eighth Circuit, which
held that the sentence was unreasonable according to the US Sentencing Guidelines
...


Answers to Law and Ethics Questions
1
...

Depictions of animal cruelty probably fall within the second category
...
The US Supreme Court was reluctant to
expand categorization, indicating that First Amendment protections far exceed
government interests in content-based regulations
...
Some possible consequences of expanding categorization are the increase of government
censorship into areas that may have value, either literary, artistic, political, or scientific
...


Answers to You Be the Legislative Analyst
1
...
(2) The statute is most likelyconstitutional
...


2
...
(2) The proposed statute is most likelyunconstitutional
...
The word “art” can be

Saylor URL: http://www
...
org/books

Saylor
...
The statute also fails to give the public notice of what is criminal
...

3
...
(2) The
proposed statute is most likely constitutional
...
However, this classification has a
rational basis and is not arbitrary
...

4
...
(2) The proposed statute is most likelyunconstitutional
...
Although the Court held that an exception could
be made for convicted felons, the proposed statute covers any crime that involves
alcohol, including misdemeanors (such as misdemeanor DUI)
...

5
...
(2) The proposed statute is most likelyunconstitutional
...

[1] Smith v
...
S
...
google
...


Saylor URL: http://www
...
org/books

Saylor
...


State ex rel
...
Thirteenth Jud
...
, cited inSection 4 "Duty to Act Based on a Special Relationship"

4
...


List the elements of a crime
...
Define the criminal act element
...
Identify three requirements of criminal act
...
Describe an exception to the criminal act element
...
Ascertain three situations where an omission to act could be criminal
...
Distinguish between actual and constructive possession
...
Identify the criminal intent element required when possession is the criminal act
...
Criminal
elements are set forth in criminal statutes, or cases in jurisdictions that allow for common-law crimes
...
The term conduct is often used to reflect the criminal act and intent
elements
...
13(5))
...
saylor
...
org
136

Figure 4
...
If a crime does require
a bad result, the prosecution must also prove the additional elements of causation and harm
...
Attendant circumstances are specified factors
that must be present when the crime is committed
...


Saylor URL: http://www
...
org/books

Saylor
...
Chapter 7 "Parties to Crime" throughChapter 13 "Crimes against
the Government" analyze the elements of specific crimes, using a general overview of most states’ laws, the Model
Penal Code, and federal law when appropriate
...
She grabs Conrad’s car keys out
of his hand, jumps into his car, and locks all the doors
...
It is dark and difficult for Janine to see, so
Conrad easily gets out of her way and is unharmed
...
In this case, the prosecution has to prove the elements of criminal
act, criminal intent, and concurrence for attempted murder
...
Attempt and other incomplete or inchoate crimes are discussed
in Chapter 8 "Inchoate Offenses"
...
The criminal
statute, or case in jurisdictions that allow common-law crimes, describes the criminal act element
...
2 Alabama Criminal Code

Saylor URL: http://www
...
org/books

Saylor
...
In other words, the
defendant must control the act
...
The Model Penal Code gives the following examples of acts that are not
voluntary and, therefore, not criminal: reflexes, convulsions, bodily movements during unconsciousness
or sleep, conduct during hypnosis or resulting from hypnotic suggestion, or a bodily movement that
otherwise is not a product of the effort or determination of the actor, either conscious or habitual (Model
Penal Code § 2
...
One voluntary act is enough to fulfill the voluntary act requirement
...
saylor
...
org
139

a voluntary act is followed by an involuntary one, the court may still impose criminal liability depending
on the circumstances
...
The hypnotist directs Perry to smash a banana cream pie into
his girlfriend Shelley’s face
...
Punishing Perry for
battery would not specifically deter Perry from performing the act again while hypnotized because he is
not in control of his behavior when experiencing this mental state
...
Timothy then
attempts to drive his vehicle home
...
Timothy can probably be convicted of one or more crimes in this situation
...
Thus even
though Timothy got into a car accident while unconscious, his involuntary act was preceded by conscious,
controllable, and voluntary action
...


Status as a Criminal Act
Generally, a defendant’s status in society is not a criminal act
...
Similar to punishment for an involuntary act, when the government punishes an
individual for status, it is essentially targeting that individual for circumstances that are outside his or her
control
...

In Robinson v
...
S
...
The
Court compared drug addiction to an illness, such as leprosy or venereal disease
...


Saylor URL: http://www
...
org/books

Saylor
...
In Powell v
...
S
...
The Court held that it is difficult but not impossible for an
alcoholic to resist the urge to drink, so the behavior the statute criminalized was voluntary
...
Pursuant to Powell, statutes that criminalize voluntary
acts that arise from status are constitutional under the Eighth Amendment
...
A state statute that criminalizes killing
another person while driving under the influence is constitutional as applied to Timothy, even if Timothy
is an alcoholic
...
Timothy’s act of driving while intoxicated is voluntary,
even if his status as an alcoholic makes it more difficult for Timothy to control his drinking
...


Thoughts as Criminal Acts
Thoughts are a part of criminal intent, not criminal act
...


Example of Noncriminal Thoughts
Brianna, a housecleaner, fantasizes about killing her elderly client Phoebe and stealing all her jewelry
...
Brianna includes the date that she wants to kill
Phoebe in her most recent diary entry
...
Later, Phoebe finds the diary on the floor and reads it
...
Although Brianna’s murder plot is
sinister and is documented in her diary, an arrest is improper in this case
...
If Brianna took substantial steps toward killing Phoebe, an attempted murder charge
might be appropriate
...


Saylor URL: http://www
...
org/books

Saylor
...


Omission to Act
An exception to the requirement of a criminal act element is omission to act
...
However, under certain specific circumstances, omission to act can be criminalized
...


[3]

This legal duty to act

becomes an element of the crime, and the prosecution must prove it beyond a reasonable doubt, along
with proving the defendant’s inaction under the circumstances
...
Legal duties to act vary from state to state and from state to
federal
...
Some
common examples of statutory duties to act are the duty to file state or federal tax returns,
[5]

health-care personnel to report gunshot wounds, and the duty to report child abuse
...
3 Kentucky Revised Statutes

Saylor URL: http://www
...
org/books

Saylor
...
Some states supersede the
common law by enacting Good Samaritan statutes that create a duty to assist those involved in an accident or
emergency situation
...


[7]

Figure 4
...
saylor
...
org
143

Duty to Act Based on a Contract
A duty to act can be based on a contract between the defendant and another party
...
Keep in mind that experts who arenot contractually bound can ignore an individual’s
pleas for help without committing a crime, no matter how morally abhorrent that may seem
...


Duty to Act Based on a Special Relationship
A special relationship may also be the basis of a legal duty to act
...
Often, the rationale for creating a legal duty to

Saylor URL: http://www
...
org/books

Saylor
...
A parent has
the obligation by law to provide food, clothing, shelter, and medical care for his or her children, because
children are dependent on their parents and do not have the ability to procure these items themselves
...


[8]

Although

this is not exactly a special relationship, the victim may be dependent on the person who created the
dangerous situation because he or she may be the only one present and able to render aid
...


[9]

Similar to the duty to rescue a victim the defendant has put in peril, the duty to continue to

provide aid is rooted in the victim’s dependence on the defendant and the unlikely chance that another
person may come along to help once the defendant has begun providing assistance
...
2
...
In this example, Clara does nothave a duty to report Linda for shoplifting
...
Nor does she have a special relationshipwith the
store mandating such a report
...
Of course, if Clara assists Linda with the shoplifting, she has then performed a
criminal act or actus reus, and a criminal prosecution is appropriate
...
If Penelope’s state has a
Good Samaritan law, she may have a duty to help the child based on a statute
...
If Penelope is the child’s mother, she may have
a duty to provide assistance based on their special relationship
...
If Penelope is just a bystander, and no Good
Samaritan law is in force, she has no duty to act and cannot be criminally prosecuted if the child suffers
harm or drowns
...
saylor
...
org
145

Possession as a Criminal Act
Although it is passive rather than active, possession is still considered a criminal act
...
There are two types of
possession: actual possession andconstructive possession
...
Constructive possession indicates that the item is not on
the defendant’s person, but is within the defendant’s area of control, such as inside a house or automobile
with the defendant
...

Because it is passive, possession should be knowing, meaning the defendant is aware that he or she
possesses the item
...
01(4), “[p]ossession is an act, within the

meaning of this Section, if the possessor knowingly procured or received the thing possessed or was aware
of his control thereof for a sufficient period to have been able to terminate his possession
...


Example of an Unenforceable Possession Statute
A state has a criminal statute that prohibits “being within 100 feet of any quantity of marijuana
...
A law enforcement officer smells marijuana and does a pat-down search
of Jean
...
Ricardo was within one hundred feet of marijuana as prohibited by the
statute, but Ricardo should not be prosecuted for marijuana possession
...
Thus Ricardo does not have
the criminal intent or mens rea for possession, and the state’s possession statute should not be enforced
against him
...
Only crimes that specify a bad result have the elements of
causation and harm
...


Saylor URL: http://www
...
org/books

Saylor
...




An exception to the criminal act element is omission to act
...




Actual possession means that the item is on or very near the defendant’s person
...




In most states, the defendant must be aware that he or she possesses the item to be
convicted of possession
...
Check your answers using the answer key at the end of the chapter
...
Jacqueline is diagnosed with epilepsy two years after receiving her driver’s license
...
Can Jacqueline be convicted of a crime in this
situation? Why or why not?
2
...
State, 998 S
...
2d 363 (1999)
...
The defendant solicited and
received prescriptions for Dilaudid, a controlled substance, from four different
physicians without informing them that he already had a prescription for Dilaudid
...
Did the Texas Court of Appeals uphold the defendant’s conviction? Why or why not?
The case is available at this
link: http://scholar
...
com/scholar_case?case=460187562193844690&q=
998+S
...
2d+363&hl=en&as_sdt=10000000000002
...
Read Staples v
...
S
...
S
...
In Staples, the defendant was convicted of
possession of an unregistered automatic weapon in violation of the National Firearms
Act
...
saylor
...
org
147

not prove that he knew the weapon was automatic, and the prosecution must prove this
knowledge to convict under the statute
...
law
...
edu/supct/html/92-1441
...
html
...
Y
...
00, accessed October 25, 2010, http://law
...
com/newyork/penal/PEN015
...
00
...

[2] Govt
...
Smith, 278 F
...
org/278/f2d/169/government-of-the-virgin-islands-v-smith
...
Y
...
00, accessed October 25, 2010, http://law
...
com/newyork/penal/PEN015
...
00
...

[4] 26 U
...
C
...
law
...
edu/uscode/26/usc_sec_26_00007203---000-
...

[5] Fla
...
Ann
...
24, accessed October 25, 2010,http://law
...
com/florida/crimes/790
...
html
...
Rev
...
Ann
...
030, accessed October 25, 2010, http://www
...
ky
...
pdf
...
01, accessed October 25,
2010,http://law
...
com/minnesota/codes/2005/595/604a-s01
...

[8] State ex rel
...
Thirteenth Jud
...
, 995 P
...
findlaw
...
html
...
U
...
, 308 F
...
google
...

[10] State v
...
App
...
google
...

[11] Connecticut Jury Instructions No
...
11-1, accessed February 13,
2011,http://www
...
ct
...
11-1
...


4
...
saylor
...
org
148

1
...


2
...

3
...

4
...

5
...

6
...

7
...

8
...

9
...

10
...

Although there are exceptions that are discussed shortly, criminal intent or mens rea is an essential element of most
crimes
...
In modern society,
criminal intent can be the basis for fault, and punishment according to intent is a core premise of criminal justice
...
Crimes that have an “evil” intent are malum in

se and subject the defendant to the most severe punishment
...


Figure 4
...
saylor
...
org
149

States and the federal government vary in their approach to defining criminal intent, and each jurisdiction describes
the criminal intent element in a criminal statute, or case, in jurisdictions that allow common-law crimes
...


Common-Law Criminal Intent
The common-law criminal intents ranked in order of culpability aremalice aforethought, specific intent,
and general intent
...


Malice Aforethought
Malice aforethought is a special common-law intent designated for only one crime:murder
...
” Society considers intent to kill the most evil of all
intents, so malice aforethought crimes such as first- and second-degree murder generally mandate the
Saylor URL: http://www
...
org/books

Saylor
...
Malice
aforethought and criminal homicide are discussed in detail in
...

Unfortunately, criminal statutes rarely describe their intent element as “specific” or “general,” and a judge
may be required to define the level of intent using the common law or a dictionary to explain a word’s
ordinary meaning
...
Crimes that require specific intent usually fall into one of three categories: either the
defendant intends to cause a certain bad result, the defendant intends to do something more than commit
the criminal act, or the defendant acts with knowledge that his or her conduct is illegal, which is
called scienter
...
” This statute describes a specific intent crime
...
If the prosecution cannot prove this high-level intent, the defendant may be
acquitted (or charged and convicted of a lower-level intent crime like battery)
...
On the other hand, if Pauline slaps
Peter while he is shaving without making the comment, and the razor bites into his cheek, it is more
challenging to prove that sheintended a scarring, and Pauline might be found guilty only of battery
...
” This statute
describes a specific intent crime
...
The defendant must also intend to
keep the property permanently
...


Saylor URL: http://www
...
org/books

Saylor
...
Scienter can be the basis of specific intent in some
statutes
...


[2]

If the prosecution fails to

prove beyond a reasonable doubt that the defendant knew his or her conduct was illegal, this could nullify
scienter, and the prosecution cannot prove specific intent
...
Thus general intent crimes are easier to prove and
can also result in a less severe punishment
...
If the defendant acts intentionally but without the additional desire to bring
about a certain result, or do anything other than the criminal act itself, the defendant has acted with
[3]

general intent
...

Ordinarily, the only direct evidence of intent is a defendant’s confession, which the government cannot
forcibly obtain because of the Fifth Amendment privilege against self-incrimination
...
However, many jurisdictions allow an inference of general intent based on the
criminal act
...


Example of a General Intent Crime and an Inference of Intent
A state statute defines battery as “intentional harmful or offensive physical contact with another
...
To be guilty of battery under the statute, the defendant
must only intend the harmful or offensive contact
...

If Addie balls up her fist and punches Eddie in the jaw after Eddie calls her a “stupid idiot,” Addie has
probably committed battery under the statute
...
saylor
...
org
152

harmful or offensive contact using Eddie’s testimony and a physician’s report
...
” If the jury accepts the inference and determines that
Addie committed the criminal act, the jury could find Addie guilty of battery without additional evidence
of intent
...
6 Common Law Intents

Motive
Intent should not be confused with motive, which is the reason the defendant commits the criminal act or
actus reus
...
However,
motive alone does not constitute mens rea and does not act as a substitute for criminal intent
...
saylor
...
org
153

Example of Motive
Isabella, a housewife with no criminal record, sits quietly in court waiting to hear the jury verdict in a trial
for the rape of her teenage daughter by Ignatius
...
The jury foreman announces the decision finding Ignatius not guilty
...
Isabella calmly pulls a loaded revolver out of her purse, and then
shoots and kills Ignatius
...
This motive generated Isabella’s
criminal intent, which is malice aforethought or intent to kill
...
However, Isabella’s motive may be introduced at sentencing and may
result in a reduced sentence such as life in prison rather than the death penalty
...


Model Penal Code Criminal Intent
The Model Penal Code divides criminal intent into four states of mind listed in order of
culpability: purposely, knowingly, recklessly, and negligently
...


[5]

Purposeful criminal intent resembles specific intent to cause harm, which was

discussed previously
...
02 (2) (a))
...
In this example,
Pauline is aware of the nature of the act (slicing someone’s cheek with a razor)
...
Thus Pauline is acting
with specific intent orpurposely and can probably be convicted of some form of aggravated battery or
mayhem in most jurisdictions
...
saylor
...
org
154

Knowingly
Knowingly indicates that the defendant is aware of the nature of the act and its probable
consequences
...


[7]

The Model Penal

Code describes knowingly as follows: “A person acts knowingly with respect to a material element of an
offense when…he is aware that his conduct is of that nature…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” (Model Penal
Code in § 2
...


Example of Knowingly
Victor brags to his girlfriend Tanya that he can shoot into a densely packed crowd of people on the subway
train without hitting any of them
...
Victor removes a concealed weapon from
his waistband and shoots, aiming at a group of people standing with their back to him
...
In this case, Victor did not intend to shoot Monica
...
However, Victor wasaware that
he was shooting a loaded gun (the nature of the act) and was alsopractically certain that shooting into a
crowd would result in somebody getting hurt or killed
...
If the state in which Victor shoots Monica defines murder intent as knowingly under
the Model Penal Code, then Victor has most likely committed murder in this case
...
saylor
...
org
155

Figure 4
...
The degreeof risk awareness is key to
distinguishing a reckless intent crime from a knowing intent crime
...


[8]

This is

different from a knowing intent crime, where the defendant must be “practically certain” of the bad
results
...
First, the defendant must consciously disregard a
substantial risk of harm
...

Saylor URL: http://www
...
org/books

Saylor
...

The standard for this prong is objective; if a reasonable person would not take the risk, then the
defendant’s action in taking it is reckless
...
02(2) (c))
...
Change
the example, and imagine that the subway train has only three passengers
...
Victor would be acting
with reckless rather thanknowing intent in this situation
...
A reasonable, law-abiding person would probably not take this action under these
circumstances
...
The difference between murder and manslaughter is discussed in detail
in
...
The
difference between reckless and negligent intent is the defendant’s lack of awareness
...


[9]

Thus the first prong of the reckless intent

test is simply changed from a subjective to objective standard
...
02(2) (d))
...
Change
the example, and imagine that the subway train has no passengers
...
Tanya challenges him to try it
...
In this case, Victor may be unaware of the bullet’s potential to

Saylor URL: http://www
...
org/books

Saylor
...
However, the trier of fact can determine that a
“reasonable person” would be aware that shooting a gun inside a small subway train could result in injury
or death
...
If the state in
which Victor shot Tanya criminalizes negligent killings, then Victor could be found guilty of criminal
homicide in this case
...
8 Model Penal Code Criminal Intents Ranked from Most Serious to Least Serious

Elements and Criminal Intent
Occasionally, different criminal intents support the various elements of an offense
...

Under the common law, every offense had just one criminal intent
...
As the Model Penal Code states, “[w]hen the law
defining an offense prescribes the kind of culpability that is sufficient for the commission of an offense,
without distinguishing among the material elements thereof, such provision shall apply to all of the

Saylor URL: http://www
...
org/books

Saylor
...
02(4))
...
” In this statute, the elements are the following: (1) breaking, (2) and
entering, (3) into a residence, (4) at nighttime
...

They must be committed with the specific intent, or purposely, to commit a felony once inside the
residence
...
Thus this statute has fourseparate criminal
intents that the prosecution must prove beyond a reasonable doubt for conviction
...
Strict liability offenses
have no intent element
...
Sometimes the
rationale for strict liability crimes is the protection of the public’s health, safety, and welfare
...


[11]

With a strict liability crime, the prosecution has to prove only the criminal act and

possibly causation and harm or attendant circumstances, depending on the elements of the offense
...
” This is
a strict liability offense
...
Susie’s protests that she “didn’t know she was traveling at that speed,”
are not a valid defense
...
The prosecution only
needs to prove the criminal act to convict Susie because this statute is strict liability and does not
require proof of criminal intent
...
Depending on the
jurisdiction, this may result in a transfer of the defendant’s intent from the intended victim to the

Saylor URL: http://www
...
org/books

Saylor
...


[12]

Although this is a legal fiction, it can be necessary to reach a

just result
...
In a case where
intent is transferred, the defendant could receive more than one criminal charge, such as a charge for
“attempting” to commit a crime against the intended victim
...


Example of Transferred Intent
Billy and his brother Ronnie get into an argument at a crowded bar
...
Ronnie ducks and Billy punches Amanda in the face instead
...
However, it is unjust to allow this protective action of Ronnie’s to excuse Billy’s
conduct
...
Billy can also be
charged with attempted battery, which is assault, of Ronnie, resulting in two crimes rather than one
under the transferred intent doctrine
...
Vicarious liability
transfers a defendant’s responsibility for the crime to a different defendant, on the basis of a special
relationship
...
The defendant just has to be involved with the criminal actor in a legally
defined relationship
...

Corporate liability is a type of vicarious liability that allows a corporation to be prosecuted for a crime
apart from its owners, agents, and employees
...
Although corporations cannot be incarcerated, they can be fined
...


Example of Vicarious Liability
Don hires James to work in his liquor store
...
One night, James sells
alcohol to Ashley and does not request identification because Ashley is attractive and James wants to ask
her out on a date
...
Certain statutes could subject Don to criminal prosecution for selling alcohol to an

Saylor URL: http://www
...
org/books

Saylor
...
Because Don is
James’s employer, he may be vicariously liable for James’s on-the-job conduct in this instance
...


[14]

This element is called concurrence
...

However, in some rare instances, the criminal act and intent are separated by time, in which case
concurrence is lacking and the defendant cannot be convicted of a crime
...
As Sherree is driving to the local gun shop
to purchase the handgun, her husband is distracted and steps in front of her car
...
Sherree
cannot be prosecuted for criminal homicide in this case
...
In fact, Sherree was trying to avoid hitting her husband at the moment he was killed
...


KEY TAKEAWAYS


One important function of intent is the determination of punishment
...




The three common-law intents ranked in order of culpability are malice aforethought,
specific intent, and general intent
...
General intent is simply the intent to perform the criminal act
...
This
alleviates the prosecution’s burden of proving criminal intent
...
Motive standing alone is
not enough to prove criminal intent
...
Purposely is similar to specific intent to

Saylor URL: http://www
...
org/books

Saylor
...
Knowingly is awareness that results are practically certain to
occur
...
Negligently is not being aware of a substantial risk of
harm when a reasonable person would be
...




Transferred intent promotes justice by holding a defendant responsible for his or her
criminal conduct, even though the conduct was intended to harm a different victim
...




Concurrence requires that act and intent exist at the same moment
...
Check your answers using the answer key at the end of the chapter
...
As Jordan is driving to school, she takes her eyes off the road for a moment and
rummages through her purse for her phone
...
Jordan is
thereafter pulled over by law enforcement and issued a traffic ticket
...
Read Morissette v
...
S
...
S
...
In Morissette, the defendant was convicted
of unlawful conversion of federal property for gathering and selling spent bomb casings
dropped during US Air Force practice maneuvers
...
Did the US Supreme Court uphold the defendant’s conviction? Why or
why not? The case is available at this
link:http://scholar
...
com/scholar_case?case=787130527265701764&hl=en&as_sdt
=2&as_vis=1&oi=scholarr
...
Read State v
...
3d 97 (2007)
...
The defendant’s mother died of
“sepsis” and was brought to the hospital covered with feces and bedsores
...
saylor
...
org
162

defendant was her mother’s caregiver
...
The jury asked the judge if “circumstances”
included the bedsores or just death
...
Did the Supreme Court of Oregon uphold the
defendant’s conviction? Why or why not? The case is available at this
link: http://scholar
...
com/scholar_case?case=10006178173306648171&q=
State+v
...

4
...
Horner, 126 Ohio St
...
In Horner, the defendant pleaded no
contest to aggravated robbery
...
The defendant
moved to dismiss the no contest plea, based on the fact that the indictment was
defective for lacking the mens rea element
...
supremecourt
...
gov/rod/docs/pdf/0/2010/2010-ohio-3830
...

LAW AND ETHICS: DEAN V
...
S
...
Sometimes they happen to individuals committing crimes with loaded guns
...
U
...
, 129 S
...
1849 (2009)), which is available at this
link:http://scholar
...
com/scholar_case?case=10945987555184039397&q=
Dean+v
...
S
...

In Dean, the defendant was sentenced to ten years imprisonment under a federal sentencing
enhancement for an accidental discharge of his firearm during a bank robbery
...
The defendant told everyone in the bank to “get down,” and then went behind the tellers’ station
and began grabbing money with his left hand
...
The defendant seemed
surprised by the discharge, cursed, and ran out of the bank
...


Saylor URL: http://www
...
org/books

Saylor
...
The US Supreme Court upheld the
defendant’s sentencing, in spite of the fact that there was no evidence ofintent to discharge the firearm
...
The statute, 18 U
...
C
...
The Court further held that a presumption of criminal
intent was not required
...
But it is not unusual to punish individuals for the unintended
consequences of theirunlawful acts” (Dean v
...
S
...
Ct
...


1
...


[1] Connecticut Jury Instructions No
...
3-1, accessed February 14,
2011,http://www
...
ct
...
3-1
...

[2] U
...
v
...
S
...
justia
...
html
...
McDaniel, 597 P
...
google
...

[4] Commonwealth v
...
E
...
google
...

[5] N
...
Rev
...
Ann
...
gencourt
...
nh
...
htm
...
§ 76-2-103(2), accessed February 14,
2011,http://le
...
gov/~code/TITLE76/htm/76_02_010300
...


Saylor URL: http://www
...
org/books

Saylor
...
Huff, 469 A
...
google
...

[8] Colo
...
Stat
...
§ 18-1-501(8), accessed February 14,
2011,http://www
...
com/colorado/lpext
...
htm&cp=
...
§ 18-101(2), accessed February 14,
2011,http://www
...
idaho
...
htm
...
Code § 13A-2-3, accessed February 14, 2011,http://law
...
com/alabama/criminal-code/13A-2-3
...

[11] Tex
...
04, accessed February 14, 2011,http://law
...
com/texas/penal/49
...
00
...

[12] N
...
Penal Law § 125
...
nycourts
...
27/Capital-Crimes/AC
...
Transferred-Intent
...

[13] 720 ILCS 5/5-4, accessed February 14, 2011, http://law
...
com/illinois/720ilcs5/5-4
...

[14] California Criminal Jury Instructions No
...
justia
...
html
...
3 Causation and Harm
LEARNING OBJECTIVES
1
...


2
...

3
...

As stated previously, causation and harm can also be elements of a criminal offense if the offense requires a bad
result
...
Many incidents occur when the defendant technically initiates
circumstances that result in harm, but it would be unjust to hold the defendant criminally responsible
...
In this section, causation in fact and legal causation are examined as well as situations where the defendant
may be insulated from criminal responsibility
...
saylor
...
org
165

Figure 4
...
saylor
...
org
166

Causation in Fact
Every causation analysis is twofold
...
The but for term comes from this phrase: “but for the defendant’s act, the harm would not have
occurred
...
03(1)(a))
...


Example of Factual Cause
Henry and Mary get into an argument over their child custody agreement
...

Mary staggers backward, is struck by lightning, and dies instantly
...
However, it would be unjust to punish

Saylor URL: http://www
...
org/books

Saylor
...
Thus
although Henry is the factual or but for cause of Mary’s death, he is probably not thelegal cause
...
The
defendant must also be the legal or proximate cause of the harm
...
As the Model Penal Code states, the
actual result cannot be “too remote or accidental in its occurrence to have a [just] bearing on the actor’s
liability” (Model Penal Code § 2
...

The test for legal causation is objective foreseeability
...
In
the example given in Section 4 "Example of Factual Cause", Henry is not the legal cause of Mary’s death
because a reasonable person could have neither foreseen nor predicted that a shove would push Mary into
a spot where lightning was about to strike
...
If the defendant’s behavior is reckless or
negligent, the legal causation foreseeability requirement is analyzed based on the risk of harm, rather
than the purpose of the defendant
...
Henry gives Mary a hard shove, even
though she is standing directly in front of a large entertainment center filled with books and a heavy
thirty-two-inch television set
...
In this situation, Henry is the factual cause of Mary’s death because he started
the chain of events that led to her death with his push
...
Thus in this
example, Henry could be the factual andlegal cause of Mary’s death
...


Saylor URL: http://www
...
org/books

Saylor
...
This is called
an intervening superseding cause
...


[3]

If an intervening

superseding cause is a different individual acting with criminal intent, the intervening individual is
criminally responsible for the harm caused
...
Change the example
so that Henry pulls out a knife and chases Mary out of the garage
...
Half an hour later, Wes, a homeless man living in the shed, returns from a day of
panhandling
...
In this
case, Henry is still the factual cause of Mary’s death, because he chased her into the shed where she was
eventually killed
...
Thus Wes is subject to prosecution for
Mary’s death, and Henry may be prosecuted only for assault with a deadly weapon
...
Because of modern technology, victims often stay alive on machines for many years
after they have been harmed
...
A few states have rules that solve this
dilemma
...


[4]

These rules create a

timeline for the victim’s death that changes the causation analysis in a criminal homicide case
...
If the victim does not die within the time limits, the
defendant may be charged with attempted murder, rather than criminal homicide
...


Saylor URL: http://www
...
org/books

[5]

Saylor
...
10 California Penal Code

Death timeline rules are often embodied in a state’s common law and have lost popularity in recent years
...


[7]

Death timeline rules are not to be confused with the statute of limitations, which is the time limit

the government has to prosecute a criminal defendant
...
11 Diagram of the Elements of a Crime

Saylor URL: http://www
...
org/books

Saylor
...
saylor
...
org
171



Factual cause means that the defendant starts the chain of events leading to the harm
...




An intervening superseding cause breaks the chain of events started by the defendant’s
act and cuts the defendant off from criminal responsibility
...


EXERCISES
Answer the following questions
...


1
...
She drives a quarter of a mile ahead of Fred and parks her car
...
When Fred gets close enough, she jumps out of
the bushes screaming
...
Is Phillipa’s act the legal cause of
Fred’s death? Why or why not?
2
...
State, 775 A
...
1043 (2001)
...
The defendant was under the influence of alcohol and
traveling thirty miles per hour over the speed limit
...
The defendant claimed that the victim
was the intervening superseding cause of her own death
...
findlaw
...
html
...
Read Commonwealth v
...
293 (1999)
...
The defendant was convicted of assault with
intent to murder and two firearms offenses
...
The defendant was
thereafter indicted for his murder
...
Did the Massachusetts Supreme Judicial Court uphold the indictment, or did the
court establish a new death timeline rule? The case is available at this
Saylor URL: http://www
...
org/books

Saylor
...
google
...


[1] Del
...
tit
...
delaware
...
shtml#261
...
520, accessed February 14,
2011,http://www
...
com/criminal/docs/calcrim/500/520
...

[3] Connecticut Jury Instructions No
...
6-1, accessed February 14,
2011,http://www
...
ct
...
6-1
...

[4] S
...
Code Ann
...
scstatehouse
...
htm
...
Penal Code § 194, accessed February 14, 2011,http://codes
...
findlaw
...

[6] Key v
...
2d 1043 (2002), accessed February 15,
2011,http://www
...
com/lx1/caselaw/freecaselaw?action=
OCLGetCaseDetail&format=FULL&sourceID=beehed&searchTerm=
efiQ
...
aadj
...

[7] Rogers v
...
S
...
lp
...
com/scripts/getcase
...


4
...
The criminal elements are criminal act or actus reus,
criminal intent or mens rea, concurrence, causation, harm, and attendant circumstances
...

Criminal acts must be voluntary or controllable and cannot consist solely of the defendant’s status or
thoughts
...
Omission or failure to act can also be criminal if
there is a duty to act based on a statute, contract, or special relationship
...
The most common items that are criminal to possess are illegal contraband, drugs,
and weapons
...
saylor
...
org
173

constructive if within an area of the defendant’s control, like inside the defendant’s house or vehicle
...
Criminal possession should be supported by the
intent of awareness because it is passive
...
The three common-law criminal intents are malice aforethought, which is intent to kill,
specific intent, and general intent
...
General intent is the intent to do the act and can often give rise to an inference of
criminal intent from proof of the criminal act
...

Motive is the reason the defendant develops criminal intent
...
Purposely is similar to specific intent to cause a particular result
...
Recklessly is a subjective awareness of a risk of harm and an
objective and unjustified disregard of that risk
...
Offense elements, including specified attendant circumstances, may
require different mental states
...

Strict liability crimes do not require an intent element and are generally malum prohibitum, with a less
severe punishment
...
Pursuant to transferred intent, the defendant may be
responsible for two crimes: attempt and the completed crime, depending on the circumstances
...

Corporate liability is a type of vicarious liability that holds a corporation responsible for crimes apart from
its owners, agents, and employees
...

When the crime requires a bad result, the defendant must cause the harm
...
Factual cause means that the defendant starts the chain of events that leads to the
bad result
...
An intervening superseding cause breaks the chain of

Saylor URL: http://www
...
org/books

Saylor
...
When
the intervening superseding cause is an individual, the intervening individual is criminally responsible for
the crime
...
These death timeline rules require the victim to
die within one or three years and a day from the defendant’s criminal act and are becoming increasingly
unpopular
...


YOU BE THE LAW STUDENT
Read the prompt, review the case, and then decide whether the issue is the defendant’s criminal
act or criminal intent
...


1
...
Andrews, 572 S
...
2d 798 (2002)
...
The next day, the defendant ran his wife and her friend down
with his car
...
He was convicted of attempted murder and assault with a deadly
weapon against both victims
...
Did the Court of Appeals of North Carolina hold that this is an issue
of criminal act or criminal intent? The case is available at this
link: http://caselaw
...
com/nc-court-of-appeals/1197459
...

2
...
Sowry, 155 Ohio App
...
In Sowry, Ohio police arrested the
defendant and brought him to jail
...
He responded “no
...
The defendant was
later convicted of knowingly conveying drugs onto the grounds of a detention facility
...
Did the Court of Appeals of Ohio hold that
this is an issue ofcriminal act or criminal intent? The case is available at this
link:http://www
...
ohio
...
pdf
...
Read Regalado v
...
S
...
2d 416 (1990)
...
The defendant appealed,
Saylor URL: http://www
...
org/books

Saylor
...
Did the District of Columbia Court
of Appeals hold that this is an issue of criminal act orcriminal intent? The case is
available at this
link:http://scholar
...
com/scholar_case?case=10084482120424691457&hl=en&as_
sdt=2&as_vis=1&oi=scholarr
...
Read State v
...
3d 1057 (2007)
...

The defendant’s hunting permit was valid in only a limited location, and the defendant
shot the elk outside that location
...
The Arizona Superior Court vacated the defendant’s
convictions, the state appealed, and the Court of Appeals of Arizona reversed
...
google
...
+Slayton&hl=en&as_sdt=2,5&as_ylo=2006
...
Kanavy, 4 A
...
google
...
+Kanavy&hl=en&as_sdt=2,5&as_vis=1
...
S
...
Grajeda, 581 F
...
google
...




People v
...
2d 274 (1992), discusses proximate
cause:http://scholar
...
com/scholar_case?case=128455976362726317&hl=en&as_
sdt=2&as_vis=1&oi=scholarr
...
utexas
...
pdf

Saylor URL: http://www
...
org/books

Saylor
...
bu
...
pdf



Vicarious
liability:http://www
...
com/news/index
...

html

Websites of Interest


State and federal laws and cases: http://law
...
com



State and federal laws and cases: http://www
...
com

Answers to Exercises
From Section 4
...
Jacqueline can be convicted of a crime in this situation
...

Only one voluntary act is required for a crime, and Jacqueline was able to control her
decision making in this instance
...

2
...
The
court stated that the defendant’s conduct in deliberately seeking out four physicians and
presenting his medical problem to them with the intent to gain a prescription for a
controlled substance in violation of Texas law is a criminalact, not an omission to act
...
The US Supreme Court reversed the defendant’s conviction and held that the
prosecution must prove that the defendant knew the weapon was automatic to convict
him of failure to register an automatic weapon
...
2 "Criminal Intent"

1
...
If Jordan is an experienced driver, then
she knows that there is a substantial risk of injury or harm when a driver takes his or her
eyes off the road
...
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practical driving tests that emphasize this fact
...

2
...
The Court disagreed with
the lower court that this was a strict liability public welfare offense and determined that
a presumption of intent was inappropriate
...

3
...

4
...


Answers to Exercises
From Section 4
...
Phillipa’s act is the factual and legal cause of Fred’s death
...
In addition, a reasonable person could foresee that
frightening someone next to a major highway might result in them trying to escape onto
the highway, where a vehicle traveling at a high rate of speed could hit them
...

2
...
The Delaware Supreme Court held
that the defendant’s acts could not be the legal cause of death unless the result of the
defendant’s acts was foreseeable
...

3
...


Answer to Law and Ethics Question
1
...
In Dean, the

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Saylor
...
The defendant was inside a bank filled with employees and
customers
...
The defendant could have shot and
killed someone
...
Thus punishing a defendant for an act that
lacks criminal intent (and harm) could fulfill specific and general deterrence
...
If
other purposes of punishment are applicable, they can also be considered as factors
...


The Court of Appeals of North Carolina held that the defendant was criminally
responsible for hitting his wife’s friend under a theory of transferred intent
...
The Court of Appeals held that transferred intent applies
even when the defendant injures the intendedvictim
...
The Court of Appeals of Ohio held that the defendant did not choose to bring drugs to
the jail; the police forcibly took him there
...

3
...
Thus this is an issue
of criminal intent
...
The Court of Appeals of Arizona held that the statutes the defendant violated are strict
liability, so the fact that the defendant may have been mistaken as to the limited
location authorized by his hunting permit is irrelevant
...


Chapter 5
Criminal Defenses, Part 1
A person who unlawfully and by force enters or attempts to enter a person’s dwelling, residence, or occupied vehicle
is presumed to be doing so with the intent to commit an unlawful act involving force or violence…

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Stat
...
§776
...
3
...
1 Criminal Defenses
LEARNING OBJECTIVES
1
...


2
...

3
...

4
...

5
...

A plethora of criminal defenses exist
...
Chapter 3 "Constitutional Protections" discussed defenses based on
the federal Constitution
...


Categorization of Defenses
Defenses can be categorized as denial or failure of proof, affirmative, imperfect, or perfect
...
Lastly, defenses can be created by a
court (common law), or created by a state or federal legislature (statutory)
...
In certain cases,
the defendant can either deny that a criminal element(s) exists or simply sit back and wait for the
prosecution to fail in meeting its burden of proof
...

An affirmative defense is not connected to the prosecution’s burden of proof
...
State statutes often specify whether a defense is affirmative
...
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Penal Code § 1
...
Procedurally, the defendant must assert any affirmative defense before or
during the trial, or the defense cannot be used as grounds for an appeal
...
Jasmine and Jerome are arrested and charged
for battering Juan
...
Jasmine claims
that she did not batter Juan because she was legally defending herself against Juan’s attack
...
Technically, Jerome can do nothing and be acquitted if the prosecution fails to prove
that he was the criminal actor
...
Jasmine must do
something to be acquitted: she must prove that Juan attacked her to a certain evidentiary standard
...
1 Denial and Affirmative Defenses

Burden of Proof for Affirmative Defenses
As stated in Chapter 2 "The Legal System in the United States", states vary as to their requirements for the
defendant’s burden of proof when asserting an affirmative defense
...
Some states require the defendant to meet the burden of production, but require the prosecution to thereafter
meet the burden of persuasion, disproving the defense to a preponderance of evidence, or in some states, beyond a
reasonable doubt
...

In such states, the defendant’s evidentiary standard is preponderance of evidence, not beyond a reasonable doubt
...
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the example given in Section 5 "Example of an Affirmative Defense", for Jasmine’s self-defense claim, Jasmine
must prove she was defending herself by meeting either the burden of production or the burden of production and
persuasion to a preponderance of evidence, depending on the jurisdiction
...
2 Diagram of the Criminal Burden of Proof

Definition of Imperfect and Perfect Defenses
As stated previously, a defense can reduce the severity of the offense, or completely exonerate the
defendant from criminal responsibility
...
If a defense results in an acquittal, it is called a perfect defense
...
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between the two is significant
...


Example of Imperfect and Perfect Defenses
LuLu flies into a rage and kills her sister Lola after she catches Lola sleeping with her fiancé
...
LuLu decides to pursue two defenses
...
Second,
LuLu claims she was insane at the time the killing occurred
...
The
claim of insanity is a perfect defense that will result in an acquittal
...
If a defense is based on an issue of fact, it is
a factual defense
...


Example of Factual and Legal Defenses
Armando is charged with the burglary of Roman’s residence
...

First, Armando claims that he was with Phil on the date and time of the burglary
...
Second, Armando claims that it is too late to prosecute him for burglary because of
theexpiration of the statute of limitations
...
Armando’s statute of limitations defense is a legal defense because it is based on
a statute that limits the amount of time the government has to prosecute Armando for burglary
...
Typically,
justification and excuse defenses admit that the defendant committed the criminal act with the requisite
intent, but insist that the conduct should not be criminal
...
A justification defense claims that the defendant’s
conduct should be legal rather than criminal because it supports a principle valued by society
...
An excuse defense claims that even though the defendant

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org/books

Saylor
...


Example of Justification and Excuse
Review the examples of affirmative, imperfect, and perfect defenses given in Section 5
...
1 "Categorization
of Defenses"
...
Society believes that individuals
should be able to protect themselves from harm, so actions taken in self-defense are justified and
noncriminal
...
LuLu’s insanity claim is based on excuse
...
Note that an
insanity claim focuses on the defendant (a legally insane individual) and whether he or she should be
criminally responsible for his or her conduct
...
1 Categorization of Defenses

Defense Type

Characteristics

Common-law

Created by a court

Statutory

Created by a state or federal legislature

Denial or failure of proof

Creates doubt in one or more elements of the offense and prevents the
prosecution from meeting its burden of proof

Affirmative

Raises an issue separate from the elements of the offense

Imperfect

Reduces the severity of the offense

Perfect

Results in an acquittal

Factual

Based on an issue of fact

Legal

Based on an issue of law

Alibi

Asserts that the defendant was somewhere else when the crime was
committed

Expiration of the statute of
limitations

Asserts that it is too late for the government to prosecute the defendant for
the crime

Justification

Claims that the criminal conduct is justified under the circumstances

Excuse

Claims that the defendant should be excused for his or her conduct

KEY TAKEAWAYS


A denial or failure of proof defense focuses on the elements of the crime and prevents
the prosecution from meeting its burden of proof
...
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that raises an issue separate from the elements of the crime
...



An imperfect defense reduces the severity of the offense; a perfect defense results in an
acquittal
...
If the basis for a
defense is an issue of law, it is called a legal defense
...
An example of a legal defense is a claim that the statute of limitations
has expired, which asserts that it is too late for the government to prosecute the
defendant for the crime
...
An affirmative defense is based on excuse when it
claims that the criminal defendant should be excused for his or her conduct
...
Check your answers using the answer key at the end of the chapter
...
Carol is on trial for battery, a general intent crime
...
Is this an affirmative defense? Why or why
not?
2
...
Burkhart, 565 S
...
2d 298 (2002)
...
The defendant claimed he acted in self-defense
...
However, the instruction did not state that the prosecution’s
burden of disproving self-defense wasbeyond a reasonable doubt
...
google
...

Saylor URL: http://www
...
org/books

Saylor
...
Read Hoagland v
...
3d 1043 (2010)
...
The Nevada
Legislature had never addressed or mentioned a necessity defense
...
google
...
+State&hl=en&as_sdt=2,5&as_ylo=2009
...
com, “The Insanity Defense among the States,” findlaw
...
findlaw
...
html
...
2 Self-Defense
LEARNING OBJECTIVES
1
...


2
...

3
...

4
...

5
...

6
...

7
...

8
...

As stated previously, self-defense is a defense based on justification
...
In the majority of states, self-defense is
a statutory defense
...


Most states have special requirements when the defendant uses deadly force in self-defense
...
An individual does not have to actually die for the force to be
considered deadly
...


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Saylor
...
Defendants who
commit criminal homicide justified by self-defense can be acquitted, or have a murder charge reduced from first to
second or third degree, or have a charge reduced from murder to manslaughter
...

To successfully claim self-defense, the defendant must prove four elements
...
Second, the defendant must prove that the
threat of injury or death was imminent
...
Fourth, the defendant must prove that he or she had
an objectively reasonable fear that he or she was going to be injured or killed unless he or she used selfdefense
...
04(1) as “justifiable when the actor believes that such force
is immediately necessary for the purpose of protecting himself against the use of unlawful force by such other person
on the present occasion
...


[2]

This rule has two exceptions
...


Excessive Force Exception
In some jurisdictions, an individual cannot respond to the defendant’s attack using excessive force under
the circumstances
...
If an individual does resort to deadly force with a nondeadly force attack,
the defendant can use reasonable force in self-defense
...
Paige calls Patty a spoiled brat who
always gets her way
...
Paige grabs a carving knife from the kitchen counter
and tries to stab Patty
...
In this
example, Patty provoked the attack by slapping Paige across the face
...
In many jurisdictions, Paige cannot respond to nondeadly force with deadly force, like a knife
...
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Paige used excessive force in her response to Patty’s slap, so Patty can use deadly force to defend herself
and may not be responsible for criminal homicide under these circumstances
...


[4]

If

the attacked individual persists in using force against the defendant after the defendant’s withdrawal,
rather than notifying law enforcement or retreating, the defendant is justified in using force under the
circumstances
...
Imagine that after Patty slaps Paige across the face,
Paige begins pounding Patty with her fists
...
She huddles
against the garage wall
...
Patty says, “Please, please don’t hurt me
...
” Paige kicks Patty in the back
...
In many jurisdictions, Patty’s karate chop is lawful under a theory of selfdefense because she completely withdrew from the attack
...
However, Patty could be criminally
responsible for battery based on the slap to Paige’s face because this physical contact was unprovoked and
not defensive under the circumstances
...
3 New York Penal Law

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...
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...
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Imminence
The defendant cannot use any degree of force in self-defense unless the defendant is faced with
an imminent attack
...
If the defendant is threatened with a future attack, the appropriate response is to inform law
enforcement, so that they can incapacitate the threatening individual by arrest or prosecution
...
When the defendant uses
force to remedy a previous attack, this is retaliatory, and a self-defense claim is not appropriate
...

Some state courts have expanded the imminence requirement to include situations where a husband in a
domestic violence situation uses force or violence regularly against the defendant, a battered wife,
therefore creating a threat of imminent harm every day
...


Example of an Attack That Is Not Imminent
Vinny tells Fiona that if she does not pay him the $1,000 she owes him, he will put out a contract on her
life
...
Fiona cannot successfully argue self-defense in this
case
...
Thus Fiona had plenty of time to
contact law enforcement to help protect her safety
...
Dwight knocks Abel unconscious
...
Dwight cannot
claim self-defense in this situation
...
Dwight’s conduct appears retaliatory and is
notjustified under these circumstances
...
Spike’s beatings have become
more violent, and Veronica starts to fear for her life
...
In states that have expanded self-defense to include the battered wife defense, Veronica may be
successful on a theory of self-defense
...
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Proportionality
The defendant cannot claim self-defense unless the degree of force used is objectively
reasonable under the circumstances
...
In general, deadly force can by employed in self-defense when a
reasonable person feels threatened with imminent death,serious bodily injury, and, in some
jurisdictions, a serious felony
...
The Model Penal Code states that deadly force
is not justifiable “unless the actor believes that such force is necessary to protect himself against death,
serious bodily harm, kidnapping or sexual intercourse compelled by force or threat” (Model Penal Code
§ 3
...


Example of Appropriate Deadly Force
Nicholas, an intruder, pins Wanda to the floor of her garage and begins to forcibly remove her clothing
...
She plunges the screwdriver into
Nicholas’s neck, killing him
...
A reasonable person in Wanda’s situation would feel deadly force is necessary to repel
Nicholas’s sexual assault
...
Thus the use of deadly force is legally justified under these circumstances
...
The majority of states have rejected this doctrine and instead allow the defendant
to stand his or her ground if the defendant is not the initial aggressor in the confrontation
...


[10]

The Model Penal Code defines

the duty to retreat by stating that the use of deadly force is not justifiable if “the actor knows that he can
avoid the necessity of using such force with complete safety by retreating” (Model Penal Code § 3
...
An established exception to the retreat doctrine in jurisdictions that follow it is the defense of the
home, which is called the castle doctrine
...


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...
org/books

Saylor
...
Sue pulls a knife out of a sheath that is strapped to her leg
and begins to advance toward Sandy
...
In a state that follows
the retreat doctrine, Sandy must attempt to escape, if she can do so safely
...
Note that Sandy was not the initial aggressor in this situation
...


Objectively Reasonable Fear of Injury or Death
The defendant cannot claim self-defense unless a reasonable person in the defendant’s situation would
believe that self-defense is necessary to avoid injury or death
...


[11]

However, the defendant is still guilty of a crime, albeit a

less serious crime
...
Wanda spins around and shakes her fist at Justin
...
Justin probably cannot claim selfdefense under these circumstances
...
Thus Justin’s response is unnecessary and unjustified in this case
...
Imagine that a slender, female ten-year-old severely
abused Justin when he was younger
...
If the trier of fact determines
that Justin honestly but unreasonably believed that Wanda was about to inflict serious bodily injury or kill
him, any charge of murder could be reduced to manslaughter on a theory of imperfect self-defense
...


Saylor URL: http://www
...
org/books

Saylor
...
An individual does not have to die for
the force to be deemed deadly
...




Two exceptions to the unprovoked attack rule are an individual’s use of excessive force
in response to an initial attack and the defendant’s withdrawal from the initial attack
...
The battered wife defense is justified with respect to the imminence
requirement: because the abuse is so constant, the battered wife faces an imminent
threat every day
...




The duty to retreat doctrine is a common-law rule requiring a defendant to retreat if it is
safe to do so, instead of using deadly force in self-defense
...




Imperfect self-defense is a defense available when the defendant has an honest but
unreasonable belief that force is necessary to defend against injury or death
...

EXERCISES
Answer the following questions
...


1
...
One night while Diane is sleeping,
Scott places a pillow over her face and smothers her
...
Read Rodriguez v
...
W
...
In Rodriguez, the defendant was
convicted of murder and attempted murder
...
Did
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Saylor
...
lexisone
...
TNga
...
ecGW&searchFlag=y&l1loc=FCLOW
...
Read Shuler v
...
Supp
...
In Shuler, the defendant shot and
killed a grizzly bear that charged him while he checked a sheep pasture to make sure his
sheep were safe
...
The Fish
and Wildlife Service thereafter fined the defendant under the Endangered Species Act
...
The Fish and Wildlife Service ruled
that the defendant provoked the attack and could not claim self-defense
...
gilalivestockgrowers
...
pdf
...
Terhune, 422 F
...
The case is available at this
link:http://cases
...
com/us-court-of-appeals/F3/422/1012/569492
...
There were two series of trials
...
At the first trial, the brothers introduced evidence of sexual abuse by their father, and the court
instructed the jury onimperfect self-defense
...


[12]

The second trial took

place in front of one jury and resulted in the convictions
...
After sentencing, the brothers petitioned for a writ of habeas corpus based on several claims,
including the exclusion of the abuse evidence and failure to instruct the jury on imperfect selfdefense
...
The court held that the evidence
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Saylor
...

The facts of the case are lurid
...


1
...

[1] Mich
...
Laws § 780
...
legislature
...
gov/(S(3li5rs55kkzn2pfegtskdunn))/mileg
...

[2] State v
...
2d 889 (1982), accessed November 13,
2010,http://scholar
...
com/scholar_case?case=18157916201475630105&hl=en&as_sdt=2&as_vis=1&oi=scho
larr
...
Belgard, 410 So
...
leagle
...
aspx?xmldoc=19821130410So2d720_1997
...

[4] N
...
Penal Law § 35
...
onecle
...
15_35
...
html
...
Taylor, 858 P
...
google
...

[6] Bechtel v
...
2d 1 (1992), accessed November 13,
2010,http://scholar
...
com/scholar_case?case=14171263417876785206&hl=en&as_sdt=2&as_vis=1&oi=scho
larr
...
com website, accessed
August 25, 2011, http://www
...
com/2010/11/05/abused-wife-who-killed-preacher-husband-speaks-out
...
saylor
...
org
195

[8] Or
...
Stat
...
219, accessed November 13, 2010,http://www
...
state
...
us/ors/161
...

[9] State v
...
3d 808 (2006), accessed November 13,
2010,http://www
...
ojd
...
or
...
htm
...
2
...
jud
...
gov/ji/criminal/part2/2
...
htm
...
Faulkner, 483 A
...
google
...

[12] Menendez v
...
3d 1012, 1024 (2005), accessed November 19, 2010,http://cases
...
com/uscourt-of-appeals/F3/422/1012/569492
...
Terhune, 422 F
...
justia
...


5
...


Ascertain the elements required for the defense of others
...
Define real and personal property
...
Explain the appropriate circumstances and degree of force a defendant can use when
defending property
...
Ascertain the elements required for the defense of ejection of trespasser
...
Distinguish defense of property from defense of habitation
...
Ascertain the three elements required for the use of deadly force in defense of
habitation under modern castle laws
...
Identify three common features of modern castle laws
...
Ascertain the constitutional parameters of the use of force by law enforcement to arrest
or apprehend criminal suspects
...
In addition, law enforcement can use force to arrest or capture individuals who reasonably appear
to be committing crimes
...
Keep in mind
that these defenses can be statutory, common-law, perfect, or imperfect, depending on the facts and the jurisdiction
...
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Defense of Others
According to early common law, a defendant could use force to defend another only when the defendant
and the person defended had a special relationship, such as a family connection
...


[1]

Thus in a majority of

jurisdictions, defense of othersrequires the same elements as self-defense: the individual defended must
be facing an unprovoked, imminent attack, and the defendant must use a reasonable degree of force with
a reasonable belief that force is necessary to repel the attack
...

Under the common law, the defendant could not use force legally if the individual defended could not use
force legally in self-defense
...


[2]

The

Model Penal Code allows the defense of another when “under the circumstances as the actor believes
them to be, the person whom he seeks to protect would be justified in using such protective force” (Model
Penal Code § 3
...
Thus if the defendant has asubjective belief that the individual defended could
use force legally in self-defense, defense of others is appropriate under the Model Penal Code
...

Their instructor Devin is watching nearby
...
Just as Devin is about to
demonstrate a takedown, Timmy, who is jogging in the area, dashes over and begins beating Alex
...
Shane did not
have the right to use self-defense during a practice maneuver, so neither did Timmy
...
In
jurisdictions that follow the Model Penal Code, Timmy can most likely use defense of others as a defense
to battery because it is clear Timmy honestly believed Shane had the right to use self-defense in this
situation
...
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Defense of Property
All jurisdictions allow individuals to use force in defense of property under certain specified
circumstances
...
Real property is land and anything permanently attached
to it
...
However, defense of the home is discussed in Section 5
...
3 "Defense of
Habitation"
...

In the majority of states, the defendant can use force only to defend real or personal property if the
defendant has an objectively reasonable belief that an imminent threat of damage, destruction, or theft
will occur
...
06(1) (a))
...

The amount of force that a defendant may legally use to protect real or personal property
is reasonable force, under the circumstances
...


[5]

[4]

The defendant can also chase someone who steals

The Model Penal Code provides “the use of force upon or

toward the person of another is justifiable when the actor believes that such force is immediately
necessary…to retake tangible movable property” (Model Penal Code §3
...
In general, the Model
Penal Code and most states do not authorize the use of deadly force to protect property (other than the
home) under any circumstances
...
It appears that
Keith is about to scrape the paint on the door of the car with this key
...
Kelsey has probably used reasonable force under the circumstances and can
claim defense of property as a defense to battery
...
In jurisdictions
that follow the Model Penal Code, Kelsey can probably use defense of property as a defense to battery
because it is clear Kelseybelieved that force was immediately necessary to protect her personal property in

Saylor URL: http://www
...
org/books

Saylor
...
Of course, if Kelsey pulls out a gun and shoots Keith, she could not claim defense of
property because deadly force is never justifiable to protect real or personal property from harm
...

Property owners have the legal right to eject trespassers under certain specified circumstances
...


[7]

The degree of force that can be used to eject the trespasser is reasonable

force, under the circumstances
...


[9]

Deadly force

under these circumstances is justified by self-defense or defense of others, not ejection of trespasser
...
Sam goes up to Burt and asks him to “move along
...
Sam goes into the house and calls law enforcement, but they inform Sam that there is a
local emergency, and they cannot come and eject Burt for at least five hours
...
Sam grabs Burt, lifts him to his feet, and pushes him
off the lawn and onto the sidewalk
...
Sam asked Burt the trespasser to leave, and Burt ignored him
...
Sam’s use of nondeadly force appears objectively reasonable
...


Defense of Habitation
Defense of habitation is a defense that applies specifically to the defendant’sresidence
...

The majority of states have since enacted modern castle laws that embody this common-law doctrine
...
Thus this defense of habitation discussion focuses primarily
on the use of deadly force
...


[10]

In 2005, Florida began a wave of castle law modifications that

resulted in most states revising their defense of habitation laws
...
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present before the use of deadly force is appropriate to defend habitation under modern castle laws
...


[12]

This excludes intruders who are outside or in the curtilage, which is the protected area

around the home
...
This excludes devices
like spring-guns that protect unoccupied dwellings with deadly force
...


[14]

The Model Penal Code provides “[t]he use of deadly force is not

justifiable…unless the actor believes that…the person against whom the force is used is attempting to
dispossess him of his dwelling…or…attempting to commit…arson, burglary, robbery or other felonious
theft…and either…has employed or threatened deadly force…or…the use of force other than deadly force
would expose the actor or another in his presence to substantial danger of serious bodily harm” (Model
Penal Code § 3
...

The majority of states’ castle laws abolish any duty to retreat when inside the home
...


[16]

This compels the prosecution

to disprove the defendant’s reasonable belief of death or great bodily injury beyond a reasonable doubt,
which is extremely difficult
...


[17]

Immunity from prosecution means

that a defendant who complies with the castle law requirements cannot be sued for damages or
prosecuted for a crime based on injury or death to the intruder
...
4 Crack the Code

Saylor URL: http://www
...
org/books

Saylor
...
Nate
removes a handgun from the nightstand and creeps silently down the stairs
...
Nate shoots and kills Bob
...
Nate could probably assert the defense
of protection of habitation under modern castle laws in most jurisdictions
...
It is difficult to identify individuals in the dark and to ascertain their motives for
Saylor URL: http://www
...
org/books

Saylor
...
Thus it wasobjectively reasonable for Nate to feel
threatened by Bob’s presence and to use deadly force to protect his domicile and its residents
...

Change the example with Nate and Bob so that Bob enters the residence during the day, and Nate
identifies him as his daughter’s boyfriend
...
A reasonable person would ask Bob why he
was entering the residence before shooting and killing him
...
If
Nate’s actions are not justifiable by the defense of habitation, he could be charged with and convicted of
first-degree murder in this situation
...

The appropriate use of force during an arrest or apprehension can operate as a defense to assault, battery,
false imprisonment, kidnapping, and criminal homicide
...
Modern law enforcement’s ability to use deadly force is governed by
the US Constitution
...
Garner, 471 U
...
1 (1985)
...
The law
enforcement officer in Garneradmitted that he shot and killed a suspect, reasonably believing he
was unarmed
...
Thus law enforcement’s use of deadly
force must be scrutinized pursuant to the standard of constitutionalreasonableness
...


Saylor URL: http://www
...
org/books

Saylor
...
Under Garner, these statutes must restrict the
lawful use of deadly force to potentially deadly situations
...


Example of Reasonable Force by Law Enforcement to Arrest
Review the example in Chapter 1 "Introduction to Criminal Law", Section 1
...
1 "Example of Criminal Law
Issues"
...
When she attempts to leave the store, an alarm is activated
...

Colin, a police officer, just happens to be driving by with the window of his patrol car open
...
Linda is shot in the leg and
collapses
...
The fact that Linda is running down the street and an alarm is going off does not demonstrate
that Linda has committed a crime necessitating deadly force to arrest
...
If
Linda is unarmed and Colin uses a firearm to subdue her, the utilization of deadly force is excessive under
these circumstances and Colin has no defense to assault with a deadly weapon or to attempted murder
...
Linda removes a gun
from her purse
...
Under Garner, it is reasonable to believe that Linda poses a danger of
death or serious bodily injury to Colin or others
...
Note that Linda’s theft is probably
amisdemeanor, not a felony
...
Under these circumstances, Colin’s use of deadly force is justified and can
operate as a legal defense in a criminal prosecution or civil suit for damages
...
5 Diagram of Use-of-Force Defenses

Saylor URL: http://www
...
org/books

Saylor
...




Real property is land and anything permanently attached to it
...


Saylor URL: http://www
...
org/books

Saylor
...




Property owners can use reasonable nondeadly force to eject a trespasser after first
asking the trespasser to leave
...




The defendant can use deadly force to defend habitation under modern castle laws if an
intruder enters occupied premises, and the defendant has an objectively reasonable
belief that the intruder will seriously injure or kill the occupants
...




Use of deadly force by law enforcement is considered a seizure under the Fourth
Amendment, so law enforcement cannot use deadly force to apprehend or arrest a
criminal suspect unless there is probable cause to believe the suspect will inflict serious
physical injury or death upon the officer or others
...
Check your answers using the answer key at the end of the chapter
...
Melanie watches as Betty verbally abuses Colleen
...
Betty calls Colleen an expletive and gives her a firm shove
...
Betty suffers internal injuries and later dies
...
Read Commonwealth v
...
E
...
In Alexander, the defendant
was convicted of brandishing a weapon when he pointed an unloadedrifle at an
individual who was repossessing his vehicle in an aggressive and belligerent manner
...
saylor
...
org
205

the Supreme Court of Virginia uphold the defendant’s conviction? The case is available
at this link: http://caselaw
...
com/va-supreme-court/1454888
...

3
...
Hayes-Pupko, No
...
In Dutton, a law enforcement
officer asked the victim for her name and date of birth after she allegedly sprayed her
neighbors with a hose
...
The victim sued for use
of excessive force in arrest
...
google
...
+Hayes-Pupko&hl=en&as_sdt=2,5&as_vis=1
...
Kurr, 654 N
...
2d 651 (2002), accessed November 14,
2010,http://scholar
...
com/scholar_case?case=14992698629411781257&hl=en&as_sdt=2&as_vis=1&oi=scho
larr
...
Miranda, No
...
socialaw
...
htm?cid=19939&sid=119
...
3476, accessed November 15,
2010,http://www
...
com/criminal/docs/calcrim/3400/3476
...

[4] K
...
A
...
lesterama
...
html
...
Gen
...
§ 53a-21, accessed November 15,
2010,http://www
...
ct
...
htm#Sec53a-21
...

[6] Fla
...
Ann
...
031, accessed November 16,
2010,http://law
...
com/florida/codes/2007/TitleXLVI/chapter776/776_031
...

[7] N
...
Stat
...
onecle
...
html
...
4, accessed November 15, 2010, http://coolice
...
state
...
us/coolice/default
...
4
...
saylor
...
org
206

[9] State v
...
WA (Wash
...
2010), accessed November 15,
2010,http://scholar
...
com/scholar_case?case=11648057948374905030&q=
State+v
...

[10] Colo
...
Stat
...
§ 18-1-704
...
co
...
co
...
htm
...
Stat
...
§ 776
...
onecle
...
013
...

[12] Fla
...
Ann
...
013, accessed November 16, 2010,http://law
...
com/florida/crimes/776
...
html
...
Ceballos, 526 P
...
buffalo
...
htm
...
Rev
...
§ 161
...
leg
...
or
...
html
...
§ 11
...
335(b), accessed November 16,
2010,http://touchngo
...
htm
...
Stat
...
§ 776
...
onecle
...
013
...


5
...


Ascertain the three elements required for the choice of evils defense
...
Distinguish between the choice of evils defense and the duress defense
...
Identify one crime that is not justifiable by the choice of evils defense or the duress
defense
...
In this section, we review the choice of evils and duress defenses
...
Under
the Model Penal Code, “[c]onduct which the actor believes to be necessary to avoid harm or evil…is
justifiable, provided that: (a) the harm or evil sought to be avoided by such conduct is greater than that
sought to be prevented by the law defining the offense charged” (Model Penal Code § 3
...
The

Saylor URL: http://www
...
org/books

Saylor
...

The choice of evils defense generally requires three elements
...
Usually, the harms are the product of nature, or are
circumstances beyond the defendant’s control
...
The ranking is generally up to the legislature or common law
...


[2]

Third, the defendant must have an objectively reasonable belief that the greater

harm is imminent and can only be avoided by committing the crime that results in the lesser harm
...
6 Kentucky Revised Statutes

Saylor URL: http://www
...
org/books

Saylor
...
When the defense is perfect, it results in an acquittal
...


Example of the Choice of Evils Defense
Tamara gets lost while hiking in a remote, mountainous area
...
Tamara breaks a window and climbs inside
...
Tamara could probably plead and prove choice of evils as a defense to burglary and theft in
many jurisdictions
...
saylor
...
org
209

and harm to the real and personal property of another
...
It is objectively reasonable to break into and
enter a cabin and use some of the supplies inside to prevent imminent injury or death
...
A trier of fact could find that the harm avoided by Tamara’s actions was greater
than the harm caused by the burglary and theft, and Tamara could be acquitted, or have her sentence or
crime reduced, depending on the jurisdiction
...
Tamara could not successfully prove the defense of choice of evils to this
additional theft
...
Thus choice of evils
cannot justify this crime
...
Tamara could not successfully prove the defense of choice of evils under
these circumstances
...
Thus Tamara
cannot rank the harms, and choice of evils cannot justify criminal homicide in this case
...
The Model Penal Code defines the duress defense as “an affirmative
defense that the actor engaged in the conduct…because he was coerced to do so by the use of, or a threat
to use, unlawful force against his person or the person of another” (Model Penal Code § 2
...

Three elements are required for the duress defense
...


[4]

Second, the defendant must have an objectively

reasonable belief that the only way to avoid the serious bodily injury or death is to commit the crime at
issue
...


[6]

Like choice of

evils, the duress defense is rarely used and can be statutory or common law, perfect or imperfect,
depending on the jurisdiction
...
saylor
...
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210

Example of the Duress Defense
Keisha, a bank teller, hands Brian, a bank robber, money out of her drawer after he points a loaded gun at
her head
...
Keisha can successfully
claim duress as a defense to any charge of theft
...

Change the example with Keisha and Brian, and imagine that Brian’s threat is made in a phone call, rather
than in person
...
If Keisha complies, Keisha cannot prove duress as a defense to theft
...
In addition, it is not objectively reasonable
to be frightened by a voice on the telephone
...

Change the preceding example with Keisha and Brian, and imagine that Brian orders Keisha to kill his exwife Pat, who works at the station next to Keisha
...
Keisha
cannot kill Pat and claim duress as a defense to murder in most states
...
Therefore, Keisha cannot legally choose to commit the crime of murder and
justify the crime with the duress defense
...




Choice of evils is often based on nature or an act of God; duress is generally brought on
by another individual
...

EXERCISES
Answer the following questions
...


Saylor URL: http://www
...
org/books

Saylor
...
A fire sweeps through a residential neighborhood
...
This prevents several houses from burning, including
Clark’s and Manny’s
...
Read People v
...
App
...
In Lovercamp, the defendants
escaped from prison and were immediately captured
...
The
trial court did not allow the defendants to introduce evidence supporting the defense
of necessity, and the defendants were convicted of escape
...
google
...

3
...
Daoud, 141 N
...
142 (1996)
...
The defendant appealed because the trial court did
not allow her to present evidence in support of the duressdefense
...
google
...


[1] State v
...
2d 38 (2004), accessed November 22,
2010,http://www
...
state
...
us/rod/docs/pdf/98/2004/2004-ohio-7334
...

[2] Ky
...
Stat
...
§ 503
...
lrc
...
gov/krs/503-00/030
...

[3] Tenn
...
§ 39-11-609, accessed November 22,
2010,http://www
...
com/tennessee/lpext
...
htm&cp=tncode
...
Gen
...
§ 53a-14, accessed November 22,
2010,http://search
...
state
...
us/dtsearch_pub_statutes
...

[5] Haw
...
Stat
...
lp
...
com/histatutes/5/37/702/702231
...
saylor
...
org
212

[6] RCW 9A
...
060, accessed November 22,
2010, http://apps
...
wa
...
aspx?cite=9A
...
16
...


5
...


Ascertain the two elements required for the consent defense
...
Identify three situations where consent can operate as a legal defense
...
Consent is most
commonly used as a defense to sex crimes such as rape, and lack of consent is a criminal element of most sexual
offenses that must be proven beyond a reasonable doubt
...
In this section,
consent to nonsexual conduct is explored
...


Elements of the Consent Defense
Consent can be a valid defense to a crime only if the victim chooses to render it
...
Under the Model Penal Code, consent is ineffective if “it is
given by a person who is legally incompetent to authorize the conduct…it is given by a person who by
reason of youth, mental disease or defect or intoxication is manifestly unable to make a reasonable
judgment…it is induced by force, duress or deception” (Model Penal Code § 2
...
In general, consent is
notknowing if it is given by an individual who is too young, mentally incompetent,

[1]

general, consent is not voluntary if it is induced by force, threat of force, or trickery
...
In
[2]

Example of Unknowing Consent
Gina drinks six glasses of wine at a party and offers to be the “donkey” in a game of pin the tail on the
donkey
...
Geoff walks up to Gina and stabs her several times in the buttocks
with a pin
...
Gina consented to
battery while she was intoxicated, and clearly she was unable to make a reasonable judgment
...


Saylor URL: http://www
...
org/books

Saylor
...
Imagine that Gina just arrived at the party and has not
consumed any alcohol
...
He exemplifies his threat by making stabbing gestures
at Gina’s eye with the pin
...
Geoff probably cannot claim consentas a
defense to battery in this case
...
Thus her
consent was not given voluntarily and was ineffective in this situation
...
7 Delaware Code Annotated

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...
org/books

Saylor
...
saylor
...
org
215

Situations Where Consent Can Operate as a Defense
Consent is a defense to only a few crimes
...


[3]

As the Model Penal Code states, “[w]hen conduct is charged to constitute an offense because it

causes or threatens bodily harm, consent to such conduct or to the infliction of such harm is a defense if: (a) the
bodily harm consented to or threatened by the conduct consented to is not serious; or (b) the conduct and the harm
are reasonably foreseeable hazards of joint participation in a lawful athletic contest or competitive sport” (Model
Penal Code § 2
...


Example of Legal Consent
Review the examples with Gina and Geoff
...
If Gina offers to be the donkey in the pin the tail on the
donkey game and Geoff stabs her in the buttocks with the pin, Geoff may be able to use consent as a
defense to battery
...
Gina probably does not
suffer serious bodily injury from the pin stab in the buttocks
...

Figure 5
...


Saylor URL: http://www
...
org/books

Saylor
...

EXERCISES
Answer the following questions
...


1
...
Can
Allen be criminally prosecuted for battery? Why or why not?
2
...
Lungren, 2 Cal
...
4th 1614 (1992)
...
The defendant also sought to protect the
individual who was going to help with the process and filed a lawsuit seeking an
injunction and immunity from criminal prosecution forassisted suicide
...
Did the Court of
Appeals of California uphold the defendant’s right to be frozen—that is, to commit
suicide? The case is available at this
link:http://www
...
com/reference/alcor/alcor7
...

3
...
State, 417 S
...
2d 699 (1992)
...
The defendant claimed that the victim, who appeared to have mental problems,
consented to this treatment
...
Did the Court of Appeals of Georgia uphold the defendant’s conviction? The
case is available at this
link:http://scholar
...
com/scholar_case?case=10809733884390698075&hl=en&as_
sdt=2002&as_vis=1
...
Rev
...
Ann
...
michie
...
dll?f=templates&fn=main-h
...

[2] Del
...
tit
...
delaware
...
shtml#451
...
saylor
...
org
217

[3] Me
...
Stat
...
17-A § 109, accessed November 23,
2010,http://www
...
org/legis/statutes/17-A/title17-Asec109
...


5
...
A denial or failure of proof
defense creates doubt in one or more of the elements of the offense and prevents the prosecution from
meeting its burden of proof
...

Defendants have either the burden of production or the burden of production and persuasion to a
preponderance of evidence for an affirmative defense
...
A perfect defense results in an acquittal
...
An example of a factual
defense is an alibi defense, which asserts that the defendant could not have committed the crime because
he or she was somewhere else at the time the crime occurred
...

Defenses can also be based on justification or excuse
...
A defense based on
excuse focuses on the defendant and excuses his or her conduct under the circumstances
...
Self-defense is legal
only when the defendant is faced with an unprovoked, imminent attack, and it is objectively reasonable
that the degree of force used in response is necessary to avoid the attack
...
The attack does not necessarily have to be imminent if the defendant is a battered wife
...
Deadly force can be used in self-defense only if the
defendant is faced with imminent death, serious bodily injury, or the commission of a serious felony
...
saylor
...
org
218

Some jurisdictions require the defendant to retreat before resorting to deadly force, while others allow the
defendant to stand his or her ground
...
If a defendant is
honestly but unreasonably mistaken about the fact that he or she needs to respond in self-defense or
defense of others, imperfect self-defense or defense of others may be appropriate, depending on the
jurisdiction
...
Real property is land and anything permanently attached to it, while personal
property is any movable object
...

Defense of habitation is distinct from defense of real property in most states
...
Castle laws eliminate the duty to retreat when in the
home and provide civil and criminal immunity from prosecution for the use of deadly force
...

Law enforcement can also use force to arrest or apprehend a criminal
...

The defense of choice of evils (called the necessity defense in some jurisdictions) permits the defendant to
commit a crime if the harm caused is less severe than harm that will occur if the crime is not committed
...
Duress, a closely related defense, can
sanction the use of force when the defendant is imminently threatened with serious bodily injury or death
...

The victim can also consent to the defendant’s conduct, creating a consent defense, as long as the consent
is given knowingly and voluntarily, the conduct is sexual or occurs during a sporting event, and the
conduct does not involve serious bodily injury or death
...
Read the prompt, review the case,
and then decide whether you would accept or reject it if you want to maintain your level of success
...

Saylor URL: http://www
...
org/books

Saylor
...
The defendant and his wife argued
...
” The defendant took the knife away and thereafter stabbed the victim
forty-three times in the head and chest with it
...
Will you accept or reject the case? Read State v
...
2d 1118 (1992)
...
google
...

2
...
The defendants want to make arguments in support
of necessity, defense of others, and duress
...
Will you accept or reject the case?
Read Allison v
...
2d 1377 (1991)
...
google
...

3
...
The victim was intoxicated and armed with two small steak
knives
...
The victim claimed he was putting
the knives down or about to put the knives down
...
Will you accept or
reject the case? Read Roy v
...
3d 691 (1994)
...
google
...

4
...
The US government wants to stop this
distribution under the federal Controlled Substances Act, which prohibits possession and
use of marijuana under any circumstances
...
saylor
...
org
220

under a claim of medical necessity
...
S
...

Oakland Cannabis Buyers’ Cooperative, 532 U
...
483 (2001)
...
law
...
edu/supct/pdf/00-151P
...


Cases of Interest


Acers v
...
S
...
justia
...




Graham v
...
S
...
justia
...




State v
...
W
...
google
...


Articles of Interest


Affirmative
defenses:http://www
...
org/pdf_lib/Beneman_Affirmative_Defenses_materials
...
ittendojo
...
htm



Castle laws: http://www
...
com/wp-content/uploads/2010/07/523-554
...
buffalo
...
pdf

Websites of Interest


Castle laws by
state: http://www
...
com/index
...
hg
...
html

Statistics of Interest


Violence used during household burglaries in the United
States:http://bjs
...
usdoj
...
cfm



US law enforcement officers killed and assaulted: http://www
...
gov/aboutus/cjis/ucr/leoka/2009/leoka-2009

Answers to Exercises
From Section 5
...
saylor
...
org
221

1
...
Thus Carol’s defense is a
denial or failure of proof defense, not an affirmative defense
...
The Supreme Court of South Carolina reversed the defendant’s conviction because the
jury instruction should have explained that the prosecution has the burden of disproving
self-defense beyond a reasonable doubt
...
The Supreme Court of Nevada held that necessity was a valid common-lawdefense to
driving while under the influence
...


Answers to Exercises
From Section 5
...
Colin cannot claim traditional self-defense because there is no objectively reasonable
fear of imminent injury or death while Diane is sleeping
...
Courts can expand statutory
defenses or create new common-law defenses
...

2
...

3
...


Answers to Exercises
From Section 5
...
Melanie cannot use defense of others as a defense to criminal homicide
...
Nothing in the fact
pattern indicates that Colleen could defend herself usingdeadly force
...

2
...


Saylor URL: http://www
...
org/books

Saylor
...
The Court of Appeals of Texas held that the victim had the right to sue for excessive
force used to arrest
...
Moreover, the offense—failure to identify herself or give her date of birth—was
minor
...


Answers to Exercises
From Section 5
...
Clark and Manny can use choice of evils as a defense to arson in many jurisdictions
...
Clark and Manny ranked the loss of one home lower than the
loss of several homes, which isobjectively reasonable
...

2
...

3
...
The court
recognized that a common-law defense of duress exists in some jurisdictions, but held
that the facts in the defendant’s case did not indicate that she was under duress
...


Answers to Exercises
From Section 5
...
In most jurisdictions, Allen cannot be criminally prosecuted because
Brettconsented to being tackled by choosing to participate in football, a contact sport
...
The Court of Appeals of California held that the defendant had no constitutional right to
be cryogenically frozen and affirmed the lower court’s dismissal of his lawsuit seeking an
injunction and immunity from criminal prosecution
...
saylor
...
org
223

individual in his death
...

3
...
The court
stated, “It is the act and intent and results of the defendant’s act which constitute the
crimes as charged; the attitude of the victim is not called into issue by these
elements
...


The US Court of Appeals for the Ninth Circuit gave great discretion to the state trial
court, creating a presumption that the trial court did a proper analysis of the law and
evidence when rejecting the imperfect self-defense jury instruction
...
[2] The battered wife syndrome or defense was not
discussed in detail, although the Menendez brothers’ theory of abuse is similar
...
In a different state,
there may have been adifferent result grounded in state law regarding these innovative
defense theories
...


In this case, the trial court rejected the imperfect self-defense argument and refused to
instruct the jury on involuntary manslaughter
...

The court held that after the defendant took the knife away, the victim was unarmed and
no imminent threat of harm remained
...


2
...
The court reviewed the
common law, statutes, and case precedent and concluded that these defenses are not
appropriate to protest legal acts
...


Saylor URL: http://www
...
org/books

Saylor
...
The United States Court of Appeals for the First Circuit affirmed the lower court’s
dismissal of the lawsuit for damages
...
Thus you
would win on the appropriate use of force in arrest argument and should accept the
case
...
The US Supreme Court held that there is no medical necessity exception to the
Controlled Substances Act
...
Thus you would lose on the medical necessity argument and
should reject the case
...
Rev
...
§ 161
...
2
...
1 The Insanity Defense
LEARNING OBJECTIVES
1
...


2
...

3
...

4
...

5
...

6
...

7
...

8
...

9
...

10
...

Saylor URL: http://www
...
org/books

Saylor
...
Compare different commitment procedures for an insane criminal defendant
...
Distinguish temporary from permanent insanity
...
This chapter reviews criminal defenses based on excuse, including the insanity defense
...

Although controversial, most states and the federal government recognize an insanity defense
...


[2]

[1]

Montana, Utah,

The insanity defense is the subject of much debate because it

excuses even the most evil and abhorrent conduct, and in many jurisdictions, legal insanity functions as a perfect
defense resulting in acquittal
...
This is
generally because of the difficulty in proving legal insanity
...
Often, mental disturbance is apparent from the defendant’s conduct under the circumstances
...
The rationale
behind creating a different standard for legal insanity is the goal of a criminal prosecution discussed in
...
While the purpose of a medical diagnosis is to eventually cure the
defendant’s disorder, the purpose of criminal law is to punish the defendant
...

The policy supporting the insanity defense is twofold
...
This is similar to a defendant who is hypnotized, or sleepwalking
...
Without the ability to control conduct, or the understanding that conduct is
evil or wrong by society’s standards, an insane defendant presumably will commit crimes again and again
...

Four variations of the insanity defense currently exist: M’Naghten, irresistible impulse, substantial capacity, and
Durham
...
It is also the oldest and was created in England in 1843
...
M’Naghten was under the paranoid delusion that the Prime Minister of England, Sir

Saylor URL: http://www
...
org/books

Saylor
...
When he tried to shoot Sir Peel from behind, he inadvertently shot Sir
Peel’s Secretary, Edward Drummond, who thereafter died
...


[3]

After a public outcry at this

verdict, the British House of Lords developed a test for insanity that remains relatively intact today
...
The defense requires two elements
...
The mental defect can be called a “defect of
reason” or a “disease of the mind,” depending on the jurisdiction
...

The terms “defect of reason” and “disease of the mind” can be defined in different ways, but in general,
the defendant must be cognitively impaired to the level of not knowing the nature and quality of the
criminal act, or that the act is wrong
...

Jurisdictions vary as to the level of awareness the defendant must possess
...
”

If know or understand is the

standard, the trier of fact must ascertain a basic level of awareness under the attendant circumstances
...

A defendant does not know the nature and quality of a criminal act if the defendant is completely
oblivious to what he or she is doing
...
However, jurisdictions differ as to the meaning of
“wrong
...


[7]

Others define wrong as “legally and morally wrong,” meaning the

defendant must also be unaware that the act is condemned by society
...


[9]

Whether the

standard is legally wrong or morally wrong, if there is any evidence of a cover-up or an attempt to hide or

Saylor URL: http://www
...
org/books

Saylor
...


Example of a Case Inappropriate for the M’Naghten Insanity Defense
Susan wants to marry a single man, but he does not want the responsibility of caring for her children
...
She drives her two sons, aged three and five, out to the lake
...
Both of her sons
drown
...
While searching the area for the kidnapper, the police discover the children’s bodies and
evidence indicating that Susan killed them
...
However, she claims she is not
guilty by reason of insanity
...
Susan tried to mislead the police,
demonstrating her awareness that she had done something wrong
...


Example of a Case Appropriate for the M’Naghten Insanity Defense
Andrea, a diagnosed schizophrenic, drowns five of her young children in the bathtub
...
The operator dispatches an emergency call to
law enforcement
...

Andrea thereafter claims she is not guilty for killing her children by reason of insanity
...

Andrea suffers from a mental defect, schizophrenia
...
In fact, Andrea herself contacted
law enforcement and immediately told them about her criminal acts
...

Figure 6
...
saylor
...
org
228

Irresistible Impulse Insanity Defense
Another variation of the insanity defense is the irresistible impulse defense
...


[10]

In some cases, the irresistible impulse

insanity defense iseasier to prove than the M’Naghten insanity defense, resulting in the acquittal of more mentally
disturbed defendants
...
In jurisdictions that recognize the
irresistible impulse insanity defense, the first element is the same as M’Naghten; the defendant must suffer from a
mental defect or disease of the mind
...
If the
defendant cannot control his or her conduct because of the mental defect or disease, the defendant’s conduct is
excused even if the defendant understands that the conduct is wrong
...
The challenge for the trier of fact in an
irresistible impulse jurisdiction is distinguishing between conduct that can be controlled and conduct that cannot
...
saylor
...
org
229

Example of a Case Inappropriate for the Irresistible Impulse Insanity Defense
Jolene, who has been diagnosed with paranoia, decides she must cut off all her sorority sisters’ hair
because they are “out to get her
...
Her plan is to subdue each sister with the stun gun and then hack off her hair
...
Feeling a stab of pity, Jolene ignores Agnes and walks hurriedly toward the
building
...
While Ashley is lying on the floor, Jolene takes out the scissors and cuts
Ashley’s hair off at the scalp
...
If Jolene attacked
Ashley in a jurisdiction that recognizes the irresistible impulse insanity defense, she probably will not be
successful with her claim
...

However, Jolene seems aware that shooting someone with a stun gun and cutting off her hair
is wrong because she spared Agnes based on pity
...
Thus Jolene is cognitive of the difference between right and
wrong and has the will to suppress criminal behavior, defeating any claim of insanity under the
irresistible impulse insanity defense
...
2 Irresistible Impulse Insanity Defense

Saylor URL: http://www
...
org/books

Saylor
...
The Model Penal Code was
completed in 1962
...


[12]

However, in 1982, John Hinckley

successfully claimed insanity using the substantial capacity test in his federal trial for the attempted murder of thenPresident Ronald Reagan
...


[13]

that switched to M’Naghten also shifted the burden of proving insanity to the defendant
...

The substantial capacity test is as follows: “A person is not responsible for criminal conduct if at the time of such
conduct as a result of mental disease or defect he lacks substantial capacity either to appreciate the criminality
[wrongfulness] of his conduct or to conform his conduct to the requirements of law” (Model Penal Code § 4
...

The defense has two elements
...
saylor
...
org
231

M’Naghten and irresistible impulse insanity defenses
...

In general, it is easier to establish insanity under the substantial capacity test because both the cognitive and
volitional requirements are scaled down to more flexible standards
...
Instead, the defendant must lack substantial, not total, capacity
...
In addition, unlike the irresistible impulse
insanity defense, the defendant must lack substantial, not total, ability to conform conduct to the requirements of
the law
...
” As
stated previously, appreciate incorporates an emotional quality, which means that evidence of the defendant’s
character or personality is relevant and most likely admissible to support the defense
...
While at the
mental hospital, Loreen made friends with many of the patients and health-care personnel
...
Most of these “jokes” consisted of putting her
antidepressants into their food
...
After her release from the mental hospital at age twenty-one, Loreen falls in love with Aidan, a
man who works in a bookstore near her apartment
...
Loreen buys a
book from Aidan and casually asks if he would like her to buy him a coffee
...
” Loreen offers to bring him the coffee
...
While Aidan is sipping the coffee, Loreen declares her
love for him
...
I hope it
doesn’t hurt you
...

Loreen claims she is not guilty for battering Aidan by reason of insanity
...
Loreen has a mental disease
or defect, psychosis
...
Note that if Loreen were in a M’Naghten jurisdiction, her
statement “I know I shouldn’t have” could prove her awareness that her conduct was wrong, defeating her

Saylor URL: http://www
...
org/books

Saylor
...
In addition, Loreen’s behavior at the mental hospital indicates that she lacks the substantial
capacity to conform or control her conduct
...
Lastly, in
a substantial capacity jurisdiction, testimony from Loreen’s friends at the mental hospital may be
admissible to support her claim of insanity, and her lack of ability to “appreciate” the criminality of her
conduct
...
3 Substantial Capacity Insanity Defense

Saylor URL: http://www
...
org/books

Saylor
...
The Durham defense, also called the Durham rule or the product test, was
adopted by the Circuit Court of Appeals for the District of Columbia in the case of Durham v
...
S
...
2d 862
(1954)
...
”

[15]

However, the court failed to give definitions for product,

mental disease, or mental defect
...
C
...
S
...
Brawner, 471 F
...


[16]

In general, the Durham insanity defense relies on ordinary principles of proximate causation
...
First, the defendant must have a mental disease or defect
...
The second element has to do

Saylor URL: http://www
...
org/books

Saylor
...
If the criminal conduct is “caused” by the mental disease or defect, then the conduct should be
excused under the circumstances
...
Most psychiatric experts agree that individuals afflicted with
paranoia unreasonably believe that the human population is “out to get them
...
” Nora’s walleye makes it appear
that she is looking to the side when she addresses people
...
Arianna is
genuinely frightened that Nora is telling their coworkers to kill her, and she decides she needs to defend
herself
...

Arianna claims she is not guilty for killing Nora by reason of insanity
...
Arianna has a mental disease or defect, paranoia
...
Thus a trier of fact could acquit Arianna on
the grounds that her conduct is excusable under these circumstances
...
4 Durham Insanity Defense

Saylor URL: http://www
...
org/books

Saylor
...
Therefore, at a minimum, a defendant claiming insanity must produce evidence that
rebuts this presumption
...


[17]

Post-Hinckley, many states have converted the insanity defense into an affirmative defense
...


[18]

The federal government and some other states require the

defendant to prove insanity by clear and convincing evidence, which is a higher standard than
preponderance of evidence
...
Diminished capacity is an imperfect
failure of proof defense recognized in a minority of jurisdictions
...
saylor
...
org
236

first-degree murder charge to second-degree murder or manslaughter if the defendant lacks the mental
capacity to form the appropriate criminal intent for first-degree murder
...
A jury
convicted White of voluntary manslaughter rather than first-degree premeditated murder after reviewing
evidence that proved his diet of junk food (Twinkies) created a chemical imbalance in his brain
...


[20]

Similar to diminished capacity is the syndrome defense
...
Some common
examples of syndromes the American Psychiatric Association recognizes in the Diagnostic and Statistical
Manual of Mental Disorders, fourth edition (DSM-IV), are antisocial personality disorder, posttraumatic
stress disorder, and intermittent explosive disorder
...
Although successful use of the syndrome defense is rare, at least one case has excused a
defendant’s drunken driving and assault and battery against a police officer because of premenstrual
syndrome (PMS)
...
The insanity defense pertains to
the defendant’s mental state when he or she commits the crime
...
Mental competence to stand trial is analyzed at the time the trial is
to take place
...
Although a detailed discussion of mental competence to stand trial is
beyond the scope of this book, in general, a criminal defendant must be able to understand the charges
against him or her, and be able to assist in his or her defense
...
04)
...
saylor
...
org
237

at the time of trial is subject to mental health treatment or even involuntary medication until competence
is regained
...
A defendant who is found guilty
but mentally ill is not acquitted but punished and treated for mental health simultaneously while in
prison
...


[22]

Example of Guilty but Mentally Ill
Review the example with Jolene in
...
If Jolene is in a state that offers a guilty but
mentally ill verdict, Jolene may be an appropriate candidate because she was mentally ill at the time she
assaulted and battered her sorority sister
...


Figure 6
...
saylor
...
org
238

Figure 6
...
saylor
...
org
239

Saylor URL: http://www
...
org/books

Saylor
...
However, it does not mean that the
defendant is free to return to society
...


[24]

This is also the Model Penal Code approach
...
08(1),

“[w]hen a defendant is acquitted on the ground of mental disease or defect excluding responsibility, the
Court shall order him to be committed to the custody of the Commissioner of Mental Hygiene [Public
Health] to be placed in an appropriate institution for custody, care and treatment
...
If the defendant is deemed mentally competent at the hearing, he or she is released
...


[25]

Temporary Insanity
Many states also recognize temporary insanity, which does not differ in analysis from permanent insanity
except for the duration of the mental illness
...
If the defendant is found
not guilty by reason of insanity for the criminal offense, but regains mental competence at the time of
prosecution, the defendant is released after the verdict is rendered
...


Example of Temporary Insanity
In Virginia in 1994, Lorena Bobbitt was tried for the crime of slicing off her husband’s penis
...
Bobbitt successfully established
the irresistible impulse insanity defense by presenting evidence of years of spousal abuse, a forced
abortion, and rape on the night of the incident
...


[28]

KEY TAKEAWAYS
Saylor URL: http://www
...
org/books

Saylor
...




The four versions of the insanity defense are M’Naghten, irresistible impulse, substantial
capacity, and Durham
...


o

The defendant did not know the nature or quality of the criminal act he or she
committed or that the act was wrong because of the mental defect or disease
...


o

The defendant could not control his or her criminal conduct because of the
mental defect or disease
...
Under the substantial capacity test, the defendant
must lack substantial, not total, capacity to appreciate the criminality of conduct or to
control or conform conduct to the law
...




The criminal defendant pleading not guilty by reason of insanity must produce evidence
to rebut the presumption that criminal defendants are sane
...




The diminished capacity defense is a failure of proof imperfect defense that may reduce
a first-degree murder to second-degree murder or manslaughter if the defendant did not

Saylor URL: http://www
...
org/books

Saylor
...
The insanity
defense is generally a perfect affirmative defense in many jurisdictions
...
Mental
incompetence to stand trial delays the criminal trial until mental competency is
regained
...
The insanity defense is
generally a perfect affirmative defense in many jurisdictions
...
Other states have a
postverdict hearing to rule on commitment
...


EXERCISES
Answer the following questions
...


1
...
For fifteen years, Jeffrey kidnaps, tortures, kills,
and eats human victims
...
If the jurisdiction in which Jeffrey commits these crimes
recognizes the M’Naghten insanity defense, can Jeffrey successfully plead and prove
insanity? Why or why not?
2
...
Guido, 191 A
...
In Guido, the defendant killed her husband and
claimed insanity in a jurisdiction that recognizes the M’Naghten insanity defense
...
The experts thereafter met with the defendant’s attorney and changed their
opinion to state that the defendant was legally insane at the time of the killing
...
Did the New
Jersey Supreme Court uphold the defendant’s conviction? The case is available at this
link:http://lawschool
...
com/acf_cases/8791-state-v-guido
...
saylor
...
org
243

3
...
Hornsby, 484 S
...
2d 869 (1997)
...
The defendant wanted to invalidate South Carolina’s statute recognizing the verdict
of guilty but mentally ill as unconstitutional
...
Did the Supreme Court of South Carolina
uphold the statute? The case is available at this
link: http://scholar
...
com/scholar_case?case=13615864613799310547&hl=en&as_
sdt=2&as_vis=1&oi=scholarr
...
Mitchell, a so-called street preacher, and Barzee held Smart captive for
nine months, tethering her to a metal cable, subjecting her to daily rapes, and forcing her to ingest alcohol
and drugs
...
Mitchell was put on trial

for kidnapping and sexual assault in the state of Utah
...


[31]

Unlike Mitchell, Barzee was involuntarily medicated pursuant to a state court order (by

the same judge that heard Mitchell’s incompetency claim), and pleaded guilty to federal and state
kidnapping, sexual assault, and illegal transportation of a minor for sex, receiving two fifteen-year
sentences, to be served concurrently
...
The US District Court judge held a
competency hearing and found that Mitchell wascompetent to stand trial
...
Throughout the trial, Mitchell was often removed from the courtroom for loudly
singing Christmas carols and hymns
...
Nonetheless, the jury rejected the insanity defense and convicted Mitchell of kidnapping and
transporting a minor across state lines for the purpose of illegal sex
...
saylor
...
org
244

If Mitchell had not committed federal crimes, he might still be awaiting trial in Utah
...
What is the purpose of putting Mitchell on trial rather than delaying the trial for mental
incompetency? Is this purpose ethical?
Check your answer using the answer key at the end of the chapter
...
usatoday
...

[1] 18 U
...
C
...
law
...
edu/uscode/18/usc_sec_18_00000017---000-
...

[2] Findlaw
...
com website, accessed November 29,
2010, http://criminal
...
com/crimes/more-criminal-topics/insanity-defense/the-insanity-defense-among-thestates
...

[3] Queen v
...
200, 2 Eng
...
718 (H
...
1843), accessed November 29,
2010, http://users
...
ufl
...
pdf
...
4, accessed November 30, 2010, http://coolice
...
state
...
us/coolice/default
...

[5] Cal
...
onecle
...
html
...
Code § 13A-3-1, accessed November 30, 2010,http://law
...
com/alabama/criminal-code/13A-31
...

[7] State v
...
2d 488 (1983), accessed November 30,
2010,http://lawschool
...
com/acf_cases/8790-state-v-crenshaw
...
Skaggs, 586 P
...
leagle
...
aspx?xmldoc=1978587120Ariz467_1470
...

[9] State v
...
2d 1314 (1990), accessed November 30,
2010,http://www
...
com/xmlResult
...
xml&docbase=CSLWAR2-19862006
...
S
...
§ 17, accessed November 28, 2010,http://www
...
cornell
...
html
...
saylor
...
org
245

[11] State v
...
2d 727 (1954), accessed November 30,
2010,http://scholar
...
com/scholar_case?case=15018626933471947897&hl=en&as_sdt=2&as_vis=1&oi=scho
larr
...
Rolf, “From M’Naghten to Yates—Transformation of the Insanity Defense in the United States—Is It
Still Viable?” Rivier College Online Academic Journal 2 (2006), accessed December 1,
2010, http://www
...
edu/journal/ROAJ-2006-Spring/J41-ROLF
...

[13] 18 U
...
C
...
law
...
edu/uscode/18/usc_sec_18_00000017---000-
...

[14] Carol A
...
rivier
...
pdf
...
U
...
, 214 F
...
google
...

[16] 18 U
...
C
...
law
...
edu/uscode/18/usc_sec_18_00000017---000-
...

[17] James R
...
wvnet
...
html
...
J
...
Ann
...
judiciary
...
nj
...
pdf
...
Code Ann
...
justia
...

[20] Cal
...
onecle
...
html
...
com website, accessed June 16,
2011, http://articles
...
com/1991-06-16/news/1991167033_1_pms-richter-defense
...
onecle
...
html
...
saylor
...
org
246

[23] Angela K
...
com
website, accessed August 26, 2011,http://www
...
com/2011/07/20/fort-hood-shooting-suspect-incourt_n_904274
...

[24] 18 U
...
C
...
onecle
...
html
...
Code Ann
...
40, accessed December 3, 2010,http://codes
...
gov/orc/2945
...

[26] Aaron Malo, Matthew P
...
Levin, “The Temporary Insanity Defense in California,”
hastings
...
uchastings
...
pdf
...
trutv
...
html; “John Wayne
and Lorena Bobbitt Trials: 1993 and 1994—Lorena Bobbitt’s Trial Begins,” law
...
org website, accessed
December 3, 2010, http://law
...
org/pages/3594/John-Wayne-Lorena-Bobbitt-Trials-1993-1994-LorenaBobbitt-s-Trial-Begins
...

[28] Rachael Bell, “Crimes Below the Belt: Penile Removal and Castration,” TruTV website, accessed December 3,
2010,http://www
...
com/library/crime/criminal_mind/sexual_assault/severed_penis/2
...

[29] Roger Simon, “Was Lorena Bobbitt’s Act ‘an Irresistible Impulse?’” Baltimoresun
...
baltimoresun
...

[30] Jennifer Dobner, “Elizabeth Smart Kidnapper Convicted, Jury Rejects Insanity Defense,” theChristian Science
Monitor website, accessed December 11, 2010,http://www
...
com/USA/2010/1210/Elizabeth-Smartkidnapper-convicted-jury-rejects-insanity-defense
...
huffingtonpost
...
html
...
huffingtonpost
...
html
...
com
website, accessed December 11, 2010, http://www
...
com/news/kstu-mitchell-competent-trialkidnapping-smart,0,4261562
...


Saylor URL: http://www
...
org/books

Saylor
...
csmonitor
...


6
...


Define the infancy defense
...
Distinguish a juvenile court adjudication from a criminal prosecution
...
Ascertain four criteria that could support a juvenile court waiver of jurisdiction
...
Identify a situation where voluntary intoxication may provide a defense
...
Define involuntary intoxication
...
Compare the defenses of voluntary and involuntary intoxication
...
Identify a situation where mistake of law may provide a defense
...
Identify a situation where mistake of law is not a valid defense
...
Identify a situation where mistake of fact may provide a defense
...
Identify a situation where mistake of fact is not a valid defense
...
Infancy asserts that the defendant is not subject to
criminal prosecution because he or she is too young to commit a crime
...
The infancy
defense is typically statutory and can be perfect or imperfect, depending on the jurisdiction
...
Juvenile
court systems generally retain jurisdiction over criminal defendants under the age of sixteen, seventeen,
or eighteen, with exceptions
...
10(1)(a))
...
The goal is to reform the minor
before he or she becomes an adult
...
saylor
...
org
248

criminal prosecution as an adult; it does not prohibit a juvenile adjudication
...

Juveniles can be prosecuted as adults under certain specified circumstances
...
Those under the age of seven were deemed
incapable of forming criminal intent, and could not be criminally prosecuted
...
Once a defendant turned fourteen, he or she was subject to an adult
criminal prosecution
...
Some states follow the early common law and set up rebuttable and irrebuttable presumptions
based on the defendant’s age
...


[2]

When a juvenile court has jurisdiction, the jurisdiction must be forfeited if the juvenile is to be prosecuted
as an adult
...
Juvenile courts can have exclusive jurisdiction over minors
under eighteen, orconcurrent or simultaneous jurisdiction with adult courts, depending on the state
...
Some states allow judges to use discretion in granting the waiver,
[3]

while others vest this power in the legislature or the prosecutor
...


[4]

Example of the Infancy Defense
Mario is ten years old
...
The newly
elected district attorney decides to make an example of Mario, and begins an adult criminal prosecution
against him for theft
...
Mario can probably claim infancy as a perfect defense to the theft charge
...
Therefore, the juvenile court has
jurisdiction in this case and Mario’s criminal prosecution should be dismissed
...
In general, intoxication can be based on the defendant’s use of alcohol, legal drugs, or illegal drugs
...
saylor
...
org
249

from the introduction of substances into the body” (Model Penal Code § 2
...
The intoxication
defense could be perfect or imperfect, statutory or common law, depending on the jurisdiction
...
Most states frown on the use of
voluntary intoxication as a defense, and allow it only to reduce the severity of the crime charged
...
Conduct that occurs after the
voluntary intoxication probably is not excused unless the intoxication prevents the defendant from
forming the criminal intent required for the offense
...


[7]

Involuntary intoxication is more likely to provide a defense than voluntary intoxication
...
Involuntary intoxication could affect the defendant’s ability to form
criminal intent, thus negating specific intent, dropping murder a degree, or converting murder to
manslaughter
...
08 (4))
...
Delilah is twenty-one and legally able
to consume alcohol
...
Delilah can probably claim involuntary intoxication as a defense in this
situation
...
Delilah could be acquitted or could have a charge of aggravated battery
reduced, depending on the jurisdiction
...
saylor
...
org
250

Figure 6
...
saylor
...
org
251

Ignorance and Mistake
Occasionally, a defendant’s mistake negates the criminal intent required for an offense
...
Mistake of law and fact defenses can be statutory or common law, perfect or
imperfect, depending on the jurisdiction
...

The defense could be a failure of proof defense or an affirmative defense of excuse, depending on the
jurisdiction
...
saylor
...
org
252

negligence required to establish a material element of the offense; or (b) the law provides that the state of
mind established by such ignorance or mistake constitutes a defense” (Model Penal Code § 2
...

Most states require that the mistake of law be founded on a statute or judicial decisionthat is later
overturned
...
04(3) (b))
...


[11]

Nor can

mistake of law be rooted in ignorance of the law because all individuals are required to know the criminal
laws effective in their jurisdiction
...
04(3) (a))
...
Shelby starts selling designer clothing on eBay and does not charge her
customers any sales tax
...

Shelby can probably assertmistake of law as a defense to the crime of evading payment of sales tax
...

Assume that in Shelby’s state, it is currently illegal to sell products over the Internet without charging
sales tax
...
Shelby agrees to research the matter and get back to Jonathan the next
day with an answer
...
Margaret asks Shelby if she would like to come along
...
The next day while Shelby is watching a
Broadway play with Margaret, Jonathan calls Shelby on her cell phone and asks Shelby what her research
revealed about the sales tax question
...
You do not need to charges sales tax when you sell products over

Saylor URL: http://www
...
org/books

Saylor
...
” If Jonathan thereafter relies on Shelby’s incorrect advice, and sells products over the
Internet without charging sales tax, he probably will not be able to assert mistake of law as a defense
...
Therefore, Jonathan could be charged with tax evasion in
this situation
...
If the facts as the defendant
believes them to be negate the requisite intent for the crime at issue, the defendant can assert mistake of
fact as a defense
...


[13]

Example of the Mistake of Fact Defense
Mickie sees Rachel, his neighbor, riding his bicycle in her driveway
...
Frightened, Rachel hops off and runs to her
house, leaving the bike behind
...
Once Mickie reaches the garage,
he sees that his bike, which is an exact replica of Rachel’s, is already inside
...
As is discussed in Chapter 11 "Crimes against Property", the
intent for theft is the intent to take the property of another person
...

Thus Mickie’s mistake of fact negates the intent required for this offense
...
Tina claims her speedometer is broken, so she was mistaken as to her
speed
...
Speeding is generally
a strict liability offense
...

Figure 6
...
saylor
...
org
254

KEY TAKEAWAYS


Infancy is a defense to an adult criminal prosecution if the defendant is too young to
form the requisite criminal intent for the offense
...




Four criteria that could support a juvenile court waiver of jurisdiction are the nature of
the offense, the sophistication it requires, the defendant’s criminal history, and the
threat the defendant poses to public safety
...
saylor
...
org
255



Voluntary intoxication may provide a defense if the intoxication prevents the defendant
from forming the requisite criminal intent for the offense
...




Voluntary intoxication is frowned on as a defense and in many states does not provide a
defense to certain crimes, such as reckless intent crimes
...




Mistake of law may provide a defense if the defendant believes his or her conduct is
legal because of reliance on a statute or judicial opinion that is later overturned
...




If the facts as the defendant believes them to be prevent the defendant from forming
the requisite intent for the crime, mistake of fact could be a valid defense
...

EXERCISES
Answer the following questions
...


1
...
Unaware of
alcohol’s effect, Burt drinks too much, attempts to walk home, and is cited for being
drunk in public
...
Burt has not broken any laws before
...
Read People v
...
Y
...
In Register, the defendant shot and killed
an individual in a bar after drinking heavily for many hours
...
The trial court refused, and the defendant was convicted
...
saylor
...
org
256

link:http://scholar
...
com/scholar_case?case=9019321014077082981&hl=en&as_s
dt=2&as_vis=1&oi=
...
Read Garnett v
...
2d 797 (1993)
...
Did the Court of Appeals
of Maryland reverse the trial court and allow the defendant to assert mistake of
fact (the victim’s age) as a defense? Why or why not? The case is available at this
link: http://scholar
...
com/scholar_case?case=9331824442522694687&hl=en&as_s
dt=2&as_vis=1&oi=scholarr
...
04
...
leg
...
gov/rcw/default
...
04
...

[2] N
...
Penal Law § 30
...
onecle
...
00_30
...
html
...
ncjrs
...
html
...
United States, 383 U
...
541 (1966), accessed December 7,
2010,http://scholar
...
com/scholar_case?case=5405024647930835755&hl=en&as_sdt=2&as_vis=1&oi=schol
arr
...
Y
...
25, accessed December 7, 2010, http://law
...
com/newyork/penal/PEN015
...
25
...

[6] Or
...
Stat
...
125, accessed December 7, 2010,https://www
...
org/ors/161
...

[7] Tenn
...
§ 39-11-503(b), accessed December 7,
2010,http://www
...
com/law/state/tennessee/tn-code/tennessee_code_39-11-503
...
3427, accessed December 7,
2010,http://www
...
com/criminal/docs/calcrim/3400/3427
...

[9] Tex
...
03, accessed December 7,
2010,http://www
...
legis
...
tx
...
8
...

[10] La
...
Stat
...
§ 14:17, accessed December 7,
2010,http://law
...
com/louisiana/codes/2009/rs/title14/rs14-17
...

Saylor URL: http://www
...
org/books

Saylor
...
State, 69 A
...
leagle
...
aspx?xmldoc=1949682193Md489_1637
...

[12] N
...
Rev
...
Ann
...
gencourt
...
nh
...
htm
...
Olsen, 685 P
...
courtroomview
...


6
...


Compare the subjective and objective entrapment defenses
...
The
Constitution does not expressly prohibit this governmental action
...
The entrapment defense is based on the government’s use of
inappropriately persuasive tactics when apprehending criminals
...

Entrapment focuses on the origin of criminal intent
...
If the criminal intent originates with
the defendant, then the defendant is acting independently and can be convicted of the offense
...
The federal government and the majority of
the states recognize the subjective entrapment defense
...


[1]

Other states and the Model Penal Code have adopted the

[2]

Subjective Entrapment
It is entrapment pursuant to the subjective entrapment defense when law enforcement pressures the
defendant to commit the crime against his or her will
...
If the facts indicate
that the defendant is predisposed to commit the crime without law enforcement pressure, the defendant
will not prevail on the defense
...
Generally, law enforcement can furnish criminal opportunities and use decoys and feigned
Saylor URL: http://www
...
org/books

Saylor
...
However, if it is clear that the requisite
intent for the offense originated with law enforcement, not the defendant, the defendant can assert
subjective entrapment as a defense
...
All the NA attendees
know that Winifred is a dedicated member who has been clean for ten years, Marcus, a law enforcement
decoy, meets Winifred at one of the meetings and begs her to “hook him up” with some heroin
...
Marcus attends the next meeting, and follows Winifred out to her car pleading with her to get him
some heroin
...
She agrees to meet Marcus in two hours with the heroin
...

Winifred may be able to assert entrapment as a defense if her state recognizes the subjective
entrapment defense
...
It is unlikely that the intent to sell heroin originated with Winifred because she has been a
dedicated member of NA, and she actually met Marcus at an NA meeting while trying to maintain her
sobriety
...


Objective Entrapment
The objective entrapment defense focuses on the behavior of law enforcement, rather than the individual
defendant
...
The objective entrapment defense focuses on a reasonable person, not the actual defendant,
so the defendant’s predisposition to commit the crime is not relevant
...


Example of Objective Entrapment
Winifred has a criminal record for prostitution
...
Winifred promptly accepts
...
A reasonable,law-abiding person could be tempted into committing prostitution

Saylor URL: http://www
...
org/books

Saylor
...
The objective entrapment defense focuses on law
enforcement tactics, rather than the predisposition of the defendant, so Winifred’s criminal record is
irrelevant and is not admissible as evidence
...


Figure 6
...
saylor
...
org
260

Figure 6
...
saylor
...
org
261

KEY TAKEAWAY


The subjective entrapment defense focuses on the individual defendant, and provides a
defense if law enforcement pressures the defendant to commit the crime against his or
her will
...
Pursuant to the subjective
entrapment defense, the defendant’s criminal record is admissible to prove the
defendant’s predisposition
...
Under the objective
entrapment defense, the defendant’s criminal record is irrelevant and inadmissible
...
Check your answers using the answer key at the end of the chapter
...
Allen has a criminal record for burglary
...
Allen responds that he
would and is arrested
...
If Allen claims entrapment, will Allen’s criminal
record be admissible to prove his predisposition to commit the crime at issue? Why or
why not?
2
...
Jones, 389 F
...
In Jones, the US District Court for the Eastern
District of Michigan denied the defendant’s petition for a writ of habeas corpus after he
Saylor URL: http://www
...
org/books

Saylor
...
The defendant
claimed he had been deprived of due process and was subjected to sentencing
entrapment when federal agents delayed a sting operation to increase the amount of
cocaine sold with the intent of increasing the defendant’s sentencing to life in prison
without the possibility of parole
...
org/389/f3d/644/sosa-v-jones
...
Read Farley v
...
2d 393 (2003)
...
The defendant responded to
the e-mail and was thereafter sent a questionnaire asking for his preferences
...
In every
communication by the government, protection from governmental interference was
promised
...
The defendant moved to dismiss based on subjective and
objective entrapment and the motion to dismiss was denied
...
Did the Court of Appeal of Florida uphold the defendant’s
conviction? The case is available at this
link: http://www
...
com/lx1/caselaw/freecaselaw?action=OCLGetCaseDetail&for
mat=FULL&sourceID=bdjgjg&searchTerm=
eiYL
...
aadj
...


[1] Connecticut Jury Instruction on Entrapment, Based on Conn
...
Stats
...
§ 53a-15, accessed December 10,
2010, http://www
...
ct
...
7-4
...

[2] People v
...
2d 947 (1979), accessed December 10,
2010,http://scholar
...
com/scholar_case?case=4472828314482166952&hl=en&as_sdt=2&as_vis=1&oi=schol
arr
...
4 End-of-Chapter Material
Summary
Saylor URL: http://www
...
org/books

Saylor
...
A not guilty by reason of insanity verdict is an acquittal for the offense
...
Four insanity defenses
are recognized in the United States: M’Naghten, irresistible impulse, substantial capacity, and Durham
...
The irresistible impulse insanity defense adds a
volitional component and excuses conduct the defendant cannot control because of a mental defect or
disease
...
The Durham insanity defense is recognized only in New Hampshire, and excuses conduct that is
the product of or caused by a mental disease or defect
...
All jurisdictions require the defendant to rebut a presumption that he or she is sane; some also
require the defendant to persuade the trier of fact that he or she is legally insane to a preponderance of
evidence or clear and convincing evidence (which is a higher standard than preponderance of evidence)
...
The criminal
defendant must also be mentally competent to stand trial, which means the defendant can understand the
charges brought against him or her and can assist in any defense
...
Temporary insanity is also a defense in some jurisdictions and does not differ from the
insanity defense except for the duration of the mental defect or disease
...
The infancy defense is generally not available in juvenile adjudications, so it is rarely asserted
because most youthful defendants are under the jurisdiction of juvenile courts
...


Saylor URL: http://www
...
org/books

Saylor
...
Voluntary intoxication is frowned on as a
defense, but will occasionally excuse conduct if it negates certain high-level criminal intent requirements
...
Ignorance of the
law is not a defense because individuals are expected to know the laws of their jurisdiction
...
Mistake of law is not a defense if the
mistake is rooted in incorrect legal advice from an attorney
...

Entrapment is also a defense in every jurisdiction
...
In a
subjective entrapment jurisdiction, the defendant’s criminal record is admissible to prove predisposition
to commit the crime at issue
...
The defendant’s criminal record is not admissible to show predisposition in an objective
entrapment jurisdiction because the focus is on law enforcement tactics, not the defendant’s nature
...
Read the prompt, review the case,
and then decide whether you would accept or reject it if you want to maintain your level of success
...


1
...
He was
thereafter charged with first-degree murder
...
In your state (Arizona), the defendant cannot introduce this argument to negate
intent; he can only plead insanity under an abbreviated version of M’Naghten, which
requires proof that the defendant did not know his conduct was wrong because of a
mental defect or disease
...
Arizona, 548
U
...
735 (2006), which is available at this
Saylor URL: http://www
...
org/books

Saylor
...
google
...
+Arizona&hl=en&as_sdt=2,5&as_vis=1
...
The defendant, an eleven-year-old boy, had sexual intercourse with a seven-year-old boy
and was charged with two counts of first-degree rape of a child
...
This conclusion was based on the defendant’s response that the sexual contact
was consensual and felt good
...
Will
you accept or reject the case? Read State v
...
3d 132 (2004), which is
available at this
link:http://scholar
...
com/scholar_case?case=14834415223416879505&hl=en&as_
sdt=2&as_vis=1&oi=scholarr
...
The defendant, a diabetic, injected an abnormally large dose of insulin before his
daughter’s birthday party
...
When they returned to the defendant’s vehicle, he hit her in the head with a
hammer
...
The
defendant wants to claim involuntary intoxication as a defense to first-degree assault,
domestic violence, and attempted first-degree murder
...
Garcia, 87 P
...
lexisone
...
CGHa
...
eeNd&searchFlag=y&l1loc=FCLOW
...
The defendant and a narcotics decoy have been acquainted for several years
...
The defendant claims that the decoy’s status as his friend, and numerous
phone calls to set up the narcotics sale pressured him to commit the crime and he wants
to claim entrapment
...
Will you accept or reject the case? Read Sebesta v
...
W
...
saylor
...
org
266

link: http://scholar
...
com/scholar_case?case=7939192026130608711&hl=en&as_s
dt=2002&as_vis=1
...
S
...
Hinckley, 493 F
...
2d 65 (2007), discusses St
...

Hinckley:http://fl1
...
com/news
...
com/wp/docs/hinckley/ushinckley12170
3opn
...




Graham v
...
Ct
...
google
...
+Florida&hl=en&as_sdt=2,5
...
State, 688 N
...
2d 408 (1997), discusses voluntary
intoxication:http://scholar
...
com/scholar_case?case=15549524331562340362&hl
=en&as_sdt=2&as_vis=1&oi=scholarr
...
S
...
Albertini, 830 F
...
courtroomview
...


Articles of Interest


The insanity defense and recent US Supreme Court
decisions:http://www
...
indiana
...
pdf



The insanity defense for Jared Lee Loughner, the shooter of US Representative Gabrielle
Giffords (D-AZ): http://www
...
com/2011/01/10/insanity-defense-difficult-forloughner/a8b43du



The ruling that Jared Lee Loughner is incompetent to stand trial for the shooting of
Representative Giffords:http://www
...
msn
...
aolnews
...
allbusiness
...
html

Websites of Interest
Saylor URL: http://www
...
org/books

Saylor
...
findlaw
...
html



Information about entrapment:http://www
...
com/newsracks/entrapment

Statistics of Interest


Juvenile crime in the United
States: http://bjs
...
usdoj
...
cfm?ty=pbdetail&iid=2028

Answers to Exercises
From Section 6
...
Jeffrey will not be successful in a jurisdiction that recognizes the M’Naghteninsanity
defense
...

Thus Jeffrey cannot produce evidence establishing the second element of M’Naghten
...
The New Jersey Supreme Court reversed the defendant’s conviction, holding that the
experts changed their opinion after being educated as to the meaningof mental defect or
disease under M’Naghten
...

3
...
The court
held that the statute rationally accomplishes its goals, and guilty but mentally ill
defendants receive immediate rather than delayed treatment, which complies with due
process
...
2 "Infancy, Intoxication, Ignorance, and Mistake"

1
...
Some of the
criteria a judge will analyze when waiving jurisdiction are the nature of the offense, the
sophistication it requires, the defendant’s criminal history, and the threat the defendant
poses to public safety
...
Thus the judge will probably allow Burt to be adjudicated
in juvenile court
...
The Court of Appeals of the State of New York upheld the defendant’s conviction and the
trial court’s refusal to instruct the jury on intoxication
...
saylor
...
org
268

the depraved mind murder statute, which requiresreckless criminal intent, and the
intoxication defense statute, whichdisallows evidence of intoxication as a defense to a
reckless intent crime
...
The Court of Appeals of Maryland upheld the trial court’s decision to disallow the
mistake of age defense
...


Answers to Exercises
From Section 6
...
Allen’s criminal record for burglary is not admissible to prove his predisposition to
commit the crime of purchasing contraband
...
Thus Allen’s
criminal record for burglary is irrelevant and inadmissible, even though he is claiming
entrapment in a jurisdiction that recognizes the subjective entrapmentdefense
...
The US Court of Appeals for the Sixth Circuit affirmed the district court’s denial of the
petition
...

3
...
The court based its holding on the defendant’s lack ofpredisposition to
commit the crime and the government’s assurance that there would be no governmental
interference, which was false under the circumstances
...


Whether Mitchell is put on trial, or held indefinitely because of his mental
incompetency, he is incapacitated and prevented from harming other victims
...
The federal judge permitted Mitchell to be put on trial, which
resulted in a conviction providing retribution
...
The state court judge allowed only for theincapacitation of Mitchell,
which did not resolve the case for the Smart family or the general public
...
saylor
...
org
269

retribution is ethical has been debated for centuries
...


Answers to You Be the Defense Attorney
1
...
Thus
you would not be able to strike down Arizona’s insanity defense statute, and you could
not introduce evidence that the defendant lacked the capacity to form criminal intent, so
you should reject the case
...
The Washington Supreme Court upheld the trial court’s ruling that the defendant was
incapable of forming the intent to commit rape of a child, reversing the appellate court
...
Thus you would prevail on the infancy defense, and you
shouldaccept the case
...
In this case, the trial court rejected the defendant’s involuntary intoxication claim, and
the defendant had to plead not guilty by reason of insanity
...
On appeal, the Court of Appeals of Coloradoreversed, holding that the
defendant had the right to claim intoxication and present evidence of this claim to the
trier of fact
...

4
...
The court held that friendship and numerous phone
calls are not enough to pressure an unwilling person to commit a crime
...


Chapter 7
Parties to Crime
Congress can impute to a corporation the commission of certain criminal offenses and subject it to criminal
prosecution therefor
...
saylor
...
org
270

New York Central R
...
v
...
S
...
1 Parties to Crime
LEARNING OBJECTIVES
1
...


2
...

3
...

4
...

5
...

6
...

7
...

Often more than one criminal defendant plays a role in the commission of a crime
...
When the participation and criminal conduct
varies among the defendants, an issue arises as to who is responsible for which crime and to what degree
...
Chapter 8 "Inchoate
Offenses" examines crimes that necessarily involve more than one person such as conspiracy and solicitation,
as well as another inchoate or incomplete crime, attempt
...

Aprincipal in the first degree actually committed the crime
...
An accessory before the fact was not present at the
scene of the crime, but helped prepare for its commission
...

In modern times, most states and the federal government divide parties to crime into two
categories: principals

[1]

and their accomplices, and accessories
...
1
"Parties to Crime"
...
saylor
...
org
271

Accomplice Elements
An accomplice under most state and federal statutes is responsible for the same crime as the criminal
actor or principal
...
The policy supporting accomplice liability is the idea that an
individual who willingly participates in furthering criminal conduct should be accountable for it to the
same extent as the criminal actor
...
1 "Parties to Crime"
...
Some common descriptors of thecriminal act element required for
accomplice liability are aid, abet, assist, counsel, command, induce, or procure
...
The Model Penal Code defines the
accomplice criminal act element as “aids…or attempts to aid such other person in planning or committing
[the offense]” (Model Penal Code § 2
...

In many states, words are enough to constitute the criminal act element required for accomplice
liability
...


[6]

However, if there is

a legal duty to act, a defendant who is present at the scene of a crime without preventing its occurrence
could be liable as an accomplice in many jurisdictions
...
06(3)(a)(iii))
...
2
...
In that example, Clara and Linda go on a shopping spree
...
After they enter the lingerie department, Linda
surreptitiously places a bra into her purse
...
As Linda and Clara leave the store, an alarm is activated
...
saylor
...
org
272

Linda and Clara run away with the security guard in pursuit
...
Although Clara
was present at the scene of the crime and did not alert the security guard, mere presence at the scene is
not sufficient to constitute the accomplice criminal act
...
Thus Clara has probably not committed theft as an accomplice, and only Linda is subject to a
criminal prosecution for this offense
...
In Phoebe’s state, parents have a duty to come to the aid of their children if their safety is
threatened
...
Phoebe probably has committed the criminal act element required for
accomplice liability in many jurisdictions
...

However, her presence at the scene combined with a legal duty to act could be enough to make her an
accomplice
...


Accomplice Intent
The criminal intent element required for accomplice liability varies, depending on the jurisdiction
...


[8]

Specific intent or purposely means the accomplice desires the principal to commit the

crime
...
06(3) (a))
...


[9]

In a minority of jurisdictions, only general intent or

acting knowingly that the crime will be promoted or facilitated is required, regardless of the crime’s
seriousness
...
saylor
...
org
273

Example of Accomplice Intent
Joullian, a hotel owner, rents a hotel room to Winnifred, a prostitute
...
Evidence that Joullian stands to benefit
from Winnifred’s prostitution, such as evidence that he will receive a portion of the prostitution proceeds,
could help prove this intent
...
If Joullian’s state requires
only general intent or knowingly for accomplice liability regardless of the crime’s seriousness, to be
deemed an accomplice Joullian must simply be aware that renting Winnifred the room will promote or
facilitate the act of prostitution
...
However, in some
jurisdictions, if the crime the defendant intentionally furthers isrelated to the crime the principal actually
commits, the defendant is deemed an accomplice
...
Under
thenatural and probable consequences doctrine, if the defendant assists the principal with the intent to
further a specific crime’s commission, and the principal commits a different crime that is foreseeable at
the time of the defendant’s assistance, the defendant could be liable as an accomplice
...


[12]

Example of the Natural and Probable Consequences Doctrine
José shows up drunk and unruly at his friend Abel’s house and tells Abel he wants to “beat the hell” out of
his girlfriend Maria
...
Abel drives
José to Maria’s house and waits in the car with the engine running
...
If José and Abel are in a jurisdiction that recognizes the natural
and probable consequences doctrine, the trier of fact could find that Abel is an accomplice to the battery,
burglary, and rape of Maria
...
If burglary and rape
were foreseeable when Abel drove a drunk and angry José to Maria’s house, the natural and probable

Saylor URL: http://www
...
org/books

Saylor
...
If Abel is not in a natural
and probable consequences jurisdiction, the trier of fact must separately determine that Abel had the
criminal intent required to be an accomplice to battery, burglary, and rape; Abel’s intent will be
ascertained according to the jurisdiction’s accomplice intent requirement—either specific
intent or purposely or general intent or knowingly
...
1 Diagram of Accomplice Liability

Consequences of Accomplice Liability
An accomplice is criminally responsible for the crime(s) the principal commits
...
So if accomplice liability is
established in the examples given in Section 7
...
2 "Accomplice Elements"; Phoebe is criminally responsible for battery
and child endangerment, Joullian is criminally responsible for prostitution, and Abel is criminally responsible for
battery and possibly burglary and rape
...
However, occasionally a situation arises where the principal is not prosecuted or acquitted because of a
procedural technicality, evidentiary problems, or a plea bargain, as is discussed in Section 7 "Prosecution of an
Accomplice When the Principal Is Not Prosecuted or Is Acquitted"
...


[13]

Thus a defendant can be liable for a crime even though he or she did

not commit it and the defendant whodid was spared prosecution or found not guilty
...
saylor
...
org
275

commission, punishment for the completed crime is appropriate
...
06(7))
...
Assume that after José burglarizes, beats, and rapes Maria, local police arrest José and Abel
...
The police officer who interrogates José is a rookie and forgets to read José his Miranda
rights
...
The district attorney decides not to prosecute José because of the tainted
interrogation
...
Although José is theprincipal and actually committed the crimes, it is
not necessary for José to suffer the same criminal prosecution and punishment as Abel
...


KEY TAKEAWAYS


The four parties to crime at early common law were principals in the first degree, principals in the
second degree, accessories before the fact, and accessories after the fact
...


o

Principals in the second degree were present at the crime scene and assisted in
the crime’s commission
...


o

Accessories after the fact helped a party to the crime avoid detection and escape
prosecution or conviction
...
saylor
...
org
276



In modern times, the parties to crime are principals and their accomplices, and
accessories
...
In many jurisdictions, words are enough to constitute the
accomplice criminal act element, while mere presence at the scene without a legal duty
to act is not enough
...




The natural and probable consequences doctrine holds an accomplice criminally
responsible if the crime the principal commits is foreseeable when the accomplice assists
the principal
...




In many jurisdictions, an accomplice can be prosecuted for an offense even if the
principal is not prosecuted or is tried and acquitted
...
Check your answers using the answer key at the end of the chapter
...
Justin asks his girlfriend Penelope, a bank teller, to let him know what time the security
guard takes his lunch break so that he can successfully rob the bank
...
The next day, which is Penelope’s day
off, Justin successfully robs the bank at 1:15
...
Read State v
...
W
...
In Ulvinen, the defendant sat guard and
then helped her son clean up and dispose of evidence after he strangled and
dismembered his wife
...
The defendant was asleep when the killing occurred, but before the killing
her son told her that he planned to kill the victim
...
Did the Supreme Court of Minnesota uphold the defendant’s murder conviction?
Saylor URL: http://www
...
org/books

Saylor
...
google
...

3
...
State, 235 SW 3d 729 (2007)
...
The jury convicted the defendant after
hearing testimony from his accomplice and reviewing a video of the defendant
confessing to the offense
...
Did the Court of
Criminal Appeals of Texas uphold the defendant’s conviction? Why or why not? The case
is available at this
link:http://scholar
...
com/scholar_case?case=10119211983865864217&hl=en&as_
sdt=2&as_vis=1&oi=scholarr
...
Penal Code § 31, accessed December 20, 2010,http://law
...
com/california/penal/31
...

[2] Idaho Code Ann
...
legislature
...
gov/idstat/Title18/T18CH2SECT18-205
...

[3] 18 U
...
C
...
lp
...
com/uscode/18/I/1/2
...
S
...
§ 21-3205, accessed December 20,
2010,http://kansasstatutes
...
org/Chapter_21/Article_32/#21-3205
...
Y
...
00, accessed December 26, 2010, http://law
...
com/newyork/penal/PEN020
...
00
...

[6] Commonwealth v
...
2d 20 (2000), accessed December 20,
2010,http://scholar
...
com/scholar_case?case=14481330811091769472&hl=en&as_sdt=2&as_vis=1&oi=scho
larr
...
Rolon, 160 Cal
...
4th 1206 (2008), accessed December 20, 2010,http://caselaw
...
com/cacourt-of-appeal/1308666
...

[8] Or
...
Stat
...
155, accessed December 20, 2010,https://www
...
org/ors/161
...

Saylor URL: http://www
...
org/books

Saylor
...
Lauria, 251 Cal
...
2d 471 (1967), accessed December 21,
2010,http://scholar
...
com/scholar_case?case=686539897745974621&hl=en&as_sdt=2&as_vis=1&oi=scholar
r
...
Code Ann
...
08
...
leg
...
gov/rcw/default
...
08
...

[11] ME Rev
...
Ann
...
17-A § 57 (3) (A), accessed December 21,
2010,http://www
...
org/legis/statutes/17-a/title17-Asec57
...

[12] Bogdanov v
...
2d 247, 251 n
...
google
...

[13] Standefer v
...
S
...
S
...
google
...

[14] Michael Martinez, “Phillip, Nancy Garrido sentenced in Jaycee Dugard Kidnapping,” CNN website, accessed
August 15, 2011, http://articles
...
com/2011-06-02/justice/california
...
sentencing_1_jaycee-dugardterry-probyn-phillip-garrido?_s=PM:CRIME
...
nytimes
...
html
...
2 Vicarious Liability
LEARNING OBJECTIVES
1
...


2
...

Vicarious liability, a concept discussed in Chapter 4 "The Elements of a Crime", also transfers liability from one
defendant to another
...
Accomplice
liability is based on the defendant’s participation in a criminal enterprise and complicity with the criminal actor or
principal, but vicarious liability transfers a defendant’s criminal responsibility for the crime to a different defendant
because of a special relationship
...
saylor
...
org
279

or her conduct
...
It is also the basis
of corporate liability, which is discussed in Section 7
...
1 "Corporate Liability"
...
In modern times,
American corporations are private enterprises whose actions can seriously injure other individuals and
the economy
...


[1]

In general, this is a vicarious liability, transferring criminal responsibility for an

offense from an agent or employee of the corporation to the corporation itself, based on the
employment relationship
...

A corporation is vicariously liable only if an agent or employee commits a crime duringthe agent or
employee’s scope of employment
...
07(1)(a))
...


Example of Corporate Liability
Harry, an employee of Burger King Corporation, shreds corporate documents in his office when Burger
King is sued civilly for sexual harassment in a multimillion-dollar class action suit
...
Note that Burger King’s liability is vicarious and depends on its relationship with Harry as an
employer and the fact that Harry is acting within the scope of employment
...
The owners of Burger King, who are the corporate shareholders, did not actively participate in
Harry’s conduct, although they will share in the punishment if the corporation is fined
...
saylor
...
org
280

Figure 7
...
saylor
...
org
281

Individual Criminal Vicarious Liability
Generally speaking, criminal law disfavors criminal vicarious liability, the exception being corporate
liability discussed in Section 7
...
1 "Corporate Liability"
...


[3]

Although accomplice liability appears to hold an accomplice responsible for principals’ conduct,

in reality the accomplice is committing a criminal act supported by criminal intent and is punished
accordingly
...
Some examples are statutes
holding parents criminally responsible when their children commit crimes that involve weapons
belonging to the parents, and offenses criminalizing contributing to the delinquency of a minor
...
The law is evolving in this area because the incidence of juveniles
committing crimes is becoming increasingly prevalent
...




In many jurisdictions, corporations are vicariously liable for crimes committed by
employees or agents acting within the scope of employment
...

EXERCISES
Answer the following questions
...


1
...
Could ABC Corporation be held vicariously liable for
criminal homicide? Why or why not?
2
...
Premier House, Inc
...
Y
...
In Premier House, the
defendant, a housing cooperative that was incorporated, and members of the housing
cooperative board of directors were ordered to stand trial for violating a New York law
Saylor URL: http://www
...
org/books

Saylor
...
A child died after
falling out of one of the windows
...
Did the Criminal Court of the City of New York uphold the
order as to the members of the board of directors? Why or why not? The case is
available at this
link:http://scholar
...
com/scholar_case?case=6854365622778516089&hl=en&as_s
dt=2&as_vis=1&oi=scholarr
...
Read Connecticut General Statute § 53a-8(b), which criminalizes the sale or provision of
a firearm to another for the purpose of committing a crime
...
justia
...
html
...
1-4 for an explanation of the statute
...
jud
...
gov/ji/criminal/part3/3
...
htm
...

Is a Corporation Criminally Accountable When Its Employees Are Not?
Read Commonwealth v
...
, 456 Mass
...
The case is available at
this
link: http://scholar
...
com/scholar_case?case=12168070317136071651&hl=en&as_sdt=2&as_vis=1&
oi=scholarr
...
The
resident could try to leave the facility because she was not wearing a prescribed security bracelet that
both set off an alarm and temporarily locked the front doors if a resident approached within a certain
distance of those doors
...
, a corporation that operates the
[4]

nursing home, was indicted for involuntary manslaughter and criminal neglect
...

The evidence indicated that the order requiring the victim to wear a security bracelet
was negligently edited out of the victim’s treatment sheet, based on the actions of more than one
employee
...
saylor
...
org
283

on the orders that did not indicate a need for the bracelet
...
wasreckless
...
The
prosecution’s premise was that the several individual instances of negligent conduct combined to create
reckless conduct that could be imputed to the corporation vicariously
...


[5]

1
...


[1] New York Central R
...
v
...
S
...
S
...
justia
...

[2] 720 ILCS § 5/5-4, accessed December 26, 2010, http://law
...
com/illinois/720ilcs5/5-4
...

[3] State v
...
2d 38 (1979), accessed December 26,
2010,http://scholar
...
com/scholar_case?case=12639244883487184852&hl=en&as_sdt=2&as_vis=1&oi=scho
larr
...
Gillespie, Kristen S
...
com website,
accessed January 24, 2011, http://www
...
com/corporate-law/article_Mintz-Levin-Cohn-Ferris-GlovskyPopeo-PC_1047124
...

[5] Commonwealth v
...
, 456 Mass
...
google
...


7
...


Distinguish between accomplice liability and the crime of accessory
...
saylor
...
org
284

2
...

3
...

4
...

As stated in , at early common law, a defendant who helped plan the offense but was not present at the scene when
the principal committed the crime was an accessory before the fact
...
In modern times, an
accessory before the fact is an accomplice, and an accessory after the fact is anaccessory, which is a separate and
distinct offense
...
”

[2]

The difference between an accomplice and an accessory is crucial
...
An accessory, on the other hand, is guilty of a separate crime that is almost always a
misdemeanor
...


[3]

In most states, a defendant cannot be an accessory to a misdemeanor, although in

some states a defendant can be an accessory to a high-level or gross misdemeanor
...


[4]

In a minority of

[5]
[6]

In many states, words are enough to constitute the accessory criminal act element
...


[7]

Example of Accessory Act
Jim wakes up late at night to the sound of someone pounding on his door
...
His father James is on the doorstep
...
He tells Jim that he just got into a car accident and needs to come inside
before the police find out about it and begin an investigation
...
The smell of alcohol on his father’s breath is apparent
...

Jim has probably committed the criminal act element required for an accessory in many jurisdictions
...
saylor
...
org
285

accident, which is most likely felony drunk driving and hit and run
...
If Jim is in a state that exempts family members from
accessory liability, he may not be subject to prosecution because the principal to the crime(s) is his father
...


Figure 7
...
saylor
...
org
286

Accessory Intent
The criminal intent element required for an accessory has two parts
...
Second, the
defendant must help or assist the principal escape or evade arrest or prosecution for and conviction of the
offense with specific intent or purposely
...
saylor
...
org
287

Example of Accessory Intent
Review the example with Jim and James given in
...

Nonetheless, Jim purposely helped James evade arrest and an alcohol screening by sheltering him in his
home while the effects of the alcohol dissipated
...
If Jim is not in a state that exempts family members from
accessory liability, he could be fully subject to prosecution for and conviction of this offense
...
Accessory is typically graded as a misdemeanor,
jurisdictions it is graded as a felony
...
1 Comparison of Accomplice, Accessory, and Vicarious Liability

Type of
Liability

Criminal Act

Criminal Intent

Accomplice

Aid, assist commission of a crime

Specific or purposely, or general or
knowingly, depending on the jurisdiction

Accessory

Aid, assist evasion of prosecution or
conviction for a felony, high-level
misdemeanor, or any crime

General or knowingly (crime committed)
plus specific or purposely (principal evades
prosecution or conviction)

Vicarious

Committed by an individual in a special
relationship with the defendant

Belongs to an individual in a special
relationship with the defendant

Figure 7
...
saylor
...
org
288

KEY TAKEAWAYS


Accomplice liability holds a complicit defendant accountable for the crime the principal
commits; accessory is a separate crime that is typically a misdemeanor
...
In many jurisdictions words
are enough to constitute the accessory criminal act element
...
The defendant must act

o

with general intent or knowingly that the principal committed the crime,

o

with specific intent or purposely to help the principal escape or evade arrest,
prosecution for, or conviction of the offense
...


EXERCISES
Answer the following questions
...


1
...
Amanda thereafter runs into a nearby alley and
Saylor URL: http://www
...
org/books

Saylor
...
A police officer arrives on the scene and asks Cory if she
witnessed the crime
...
” The police officer
does a search, does not find Amanda, and leaves
...
Read U
...
v
...
3d 1140 (2001)
...
The defendant claimed that her
convictions were unconstitutional because they contravened her right to privacy,
association, marriage, and due process
...
findlaw
...
html
...
Read State v
...
2d 427 (1980)
...
The lower court held that the
defendant could not be an accessory to a felony because her son was not an adult who
could be charged with a felony
...
google
...
+Truesdell+620+P
...

Next
[1] Mass
...
Laws ch
...
onecle
...
html
...
Rev
...
§ 710-1030, accessed January 26, 2011,http://law
...
com/codes/hawaii/2009/volume14/title-37/chapter-710/hrs-0710-1030-htm/
...
Code Ann
...
2-19, accessed December 26, 2010,http://law
...
com/virginia/crimes-and-offensesgenerally/18
...
html
...
R
...
§ 195
...
onecle
...
030
...

[5] Haw
...
Stat
...
capitol
...
gov/hrscurrent/Vol14_Ch0701-0853/HRS0710/HRS_0710-1030
...

Saylor URL: http://www
...
org/books

Saylor
...
Stat
...
§ 609
...
revisor
...
gov/statutes/?id=609
...

[7] Vt
...
Ann
...
13 § 5, accessed December 23,
2010,http://www
...
state
...
us/statutes/fullchapter
...

[8] Mass
...
Laws ch
...
onecle
...
html
...
Rev
...
§ 710-1030, accessed January 9, 2011,http://law
...
com/codes/hawaii/2009/volume14/title-37/chapter-710/hrs-0710-1030-htm/
...
§ 18-206, accessed January 9,
2011,http://www
...
idaho
...
htm
...
4 End-of-Chapter Material
Summary
Often more than one criminal defendant participates in the commission of a crime
...

At early common law, there were four parties to a crime
...
A principal in the second degree was present at the crime scene and assisted in the crime’s
commission
...
An accessory after the fact helped a party after he or she committed a crime by
providing aid in escaping or avoiding arrest and prosecution or conviction
...
Principals actually commit the crime, and they and their accomplices are criminally
responsible for it
...

The criminal act element required to be an accomplice in most jurisdictions is assistance in the
commission of a crime
...
Mere presence at the
scene, even presence at the scene combined with flight after the crime’s commission, is not enough to
constitute the accomplice criminal act unless there is a legal duty to act
...
In some states, general intent or knowingly that the principal will

Saylor URL: http://www
...
org/books

Saylor
...
In a minority of jurisdictions,
general intent or knowingly that the principal will commit the crime is sufficient
...
In many jurisdictions an accomplice can be
prosecuted for a crime the principal commits even if the principal is not prosecuted or acquitted
...
Vicarious liability is common between employers and employees and is the basis for
corporate criminal liability
...
The corporate agent
or employee also is criminally responsible for his or her conduct
...
The law in this area is evolving as the incidence of juveniles committing crimes
increases
...
The criminal
act element required for an accessory is providing assistance to a principal in escape, avoiding detection,
or arrest and prosecution, or conviction for the commission of a felony, high-level misdemeanor, or any
crime, depending on the jurisdiction
...
Several
jurisdictions exempt family members from criminal responsibility for acting as an accessory
...
Accessory is a separate crime that is
usually graded as a misdemeanor, although some jurisdictions grade accessory as a felony
...
Read the
prompt, review the case, and then decide which legal concept it represents
...


1
...
The defendant
claimed that the evidence was insufficient to prove he was an accomplice to the
burglary
...
saylor
...
org
292

or both? Read Collins v
...
2d 1036 (1983)
...
google
...

2
...
Although both defendants testified that the victim
died from injuries experienced after a fall from a swing, medical experts reported that
the victim’s injuries were inconsistent with that testimony and appeared to be the result
of child abuse
...
Does this case illustrate the legal concept
of omission to act, statutory interpretation, or both? Read State v
...
2d
712 (1999)
...
findlaw
...
html
...
The defendant, an electrical contracting company, was found guilty of violating OSHA
regulations that led to an employee’s death
...
The OSHA statute in question
required “willful” conduct on behalf of the company
...
The evidence indicated that some employees knew or were
aware of live wiring in the vicinity of the accident
...
Does this case illustrate the legal concept of criminal intent, vicarious liability,
or both? Read U
...
v
...
E
...
, 562 F
...
The case is available at this
link:http://scholar
...
com/scholar_case?case=2854285863509787279&hl=en&as_s
dt=2&as_vis=1&oi=scholarr
...
The defendant was convicted of both first-degree murder and accessory after the fact to
that murder
...
saylor
...
org
293

exclusive and that they could only convict the defendant of one or the other
...
Does this
case illustrate the legal concept of the criminal elements required for accessory after
the fact, the criminal elements required for murder, or both? Read State v
...

382PA09 (North Carolina 2010)
...
findlaw
...
html
...
Merida-Medina, 191 P
...
google
...




State v
...
W
...
google
...




Staten v
...
2d 622 (1988), discusses principal and accessory criminal
responsibility: http://scholar
...
com/scholar_case?case=5691885691013540689&
hl=en&as_sdt=2&as_vis=1&oi=scholarr
...
ssrn
...
cfm?abstract_id=1664162



Corporate criminal
liability:http://www
...
com/feature/archives/2009/07/corporate-criminal liability-s
...
experiencefestival
...
typepad
...
html

Statistics of Interest
Saylor URL: http://www
...
org/books

Saylor
...
fbi
...
1 "Parties to Crime"

1
...
Penelope assisted Justin by telling him what time the security guard took
his break
...
Note that Penelope
assisted Justin with words and that words are enough to constitute the criminal act
element required for accomplice liability
...
The Supreme Court of Minnesota reversed the defendant’s murder conviction, holding
that the Minnesota Accomplice Liability Statute required more than passive
acquiescence as a criminal act element
...

3
...
The court
specifically held that corroborating evidence does not have to be enough to prove
beyond a reasonable doubt that the defendant committed the crime; it only has to “tend
to connect him to the offense
...
2 "Vicarious Liability"

1
...
However, if Brad were required to work while

Saylor URL: http://www
...
org/books

Saylor
...

2
...
The court stated that whether the board of directors could be held
vicariously liable was a question of fact to be determined by the judge or jury at trial
...
The jury instruction explains that the statute criminalizes vicarious liability,
not accomplice liability
...


Answers to Exercises
From Section 7
...
Cory has probably committed the crime of accessory in most jurisdictions
...
Note that Cory renders assistance using words,
but words are enough to constitute the criminal act element required for accessory
...

Her failure to report the crime is probably not an “omission to act” because it is
extremely unlikely that a statute exists requiring individuals to report theft committed
in their presence, creating a legal duty to act
...

2
...
The court reversed the
accessory conviction on separate grounds (an improperly drafted indictment)
...
The Oklahoma Court of Criminal Appeals reversed the lower court and allowed the
defendant to be prosecuted for accessory
...
saylor
...
org
296

principal to be charged with or convicted of a felony to prosecute another for accessory
to that felony, so the child’s age or prosecutability is irrelevant
...


Insisting that at least one individual employee of the corporation commit a crime with
the requisite intent before imposing vicarious liability upon the corporation is ethical,
and it promotes justice
...
For example, it could create unfair and
overly harsh sentencing if extended to accomplice liability
...
Imagine the possibilities if the accomplices’ intent could be
aggregated and raised to a more sinister level
...
Vicarious corporate liability is already a legal
fiction because it transfers criminal responsibility for conduct from an individual to a
business entity
...
If prosecutors could stretch the fiction further by
combining the intents of various corporate employees and elevating them, this would
not comport with notions of fairness
...


In this case, the District Court of Appeal of Florida held that the evidence was
insufficient to support either the criminal act element or the criminal intent element
required to be an accomplice
...
The court thereafter held that an inference of intent to commit burglary
was inappropriate when the prosecution did not prove the criminal act that was the
basis of the inference
...


2
...
The statute was predicated on the

Saylor URL: http://www
...
org/books

Saylor
...
06(3)(a)(iii), which expressly includes omission to act as
sufficient for accomplice liability when there is a legal duty to act, so the court held that
the Washington State Legislature’s rejection of omission to act in the accomplice liability
statute was deliberate
...
08
...
The court also expressly stated that in Washington, omission to act
cannot create accomplice liability
...

3
...
The
court held that an individual employee’s knowledge or awareness could not be imputed
to the company unless the individual employee had a duty to report that knowledge
...
Thus you can use this
case to illustrate the legal concepts of vicarious liability and criminal intent
...
The North Carolina Supreme Court discussed the elements of first-degree murder,
aiding and abetting first-degree murder, and accessory after the fact to murder
...
Thus you can use this case to illustrate the legal concepts of the elements of
first-degree murder andthe elements of accessory after the fact
...


Pinkerton v
...
S
...
2
...
saylor
...
org
298

8
...


Define an inchoate crime
...
Distinguish between general and specific attempt statutes
...
Identify and describe the four tests jurisdictions use to ascertain the criminal act element
required for attempt
...
Define preparatory crimes
...
Define the criminal intent element required for attempt
...
Identify two potential defenses to attempt
...
Distinguish between factual and legal impossibility
...
Define voluntary abandonment
...
Describe merger and explain the way it affects attempt crimes
...
Analyze the relationship between transferred intent and attempt
...
Distinguish between the grading of attempt and the completed crime
...
Inchoatemeans “just begun, incipient, in
the early stages
...
Although attempt never results in the

finished criminal offense, both conspiracy and solicitation could give rise to separate completed crimes
...
If a defendant could
not be apprehended until a crime is finished, law enforcement would not be able to intervene and avert injury to
victim(s) or property
...

The difficulty in holding a defendant accountable for an inchoate or incomplete crime is ascertaining the level of

progress necessary to impute criminal responsibility, which is especially daunting with attempt, because in every
instance the crime is left unfinished, as is discussed in
...


[2]

Gradually, the law evolved, and a defendant

who committed attempt resulting in severe harm was punished for a minor crime, typically a
misdemeanor
...
Scofield, Cald
...


[3]

In Scofield, a servant was convicted of a misdemeanor for attempting to burn down his master’s

Saylor URL: http://www
...
org/books

Saylor
...
A subsequent case, Rex v
...
Rep
...
B
...
In
modern times, most states criminalize attempt, the majority in statutes, except in some states that permit
common-law crimes
...


Attempt Statutes
In general, there are two types of attempt statutes
...
Other states and the federal government
have specific attempt statutes that define attempt according to specified crimes, such as murder,
robbery, or rape
...


[6]

Attempt Act
The criminal act element required for attempt varies, depending on the jurisdiction
...
Thus a defendant does not commit attempt by plotting or
planning an offense
...


[7]

However, the crux of any attempt case is how close to completing the

offense the defendant must get to fulfill the attempt criminal act requirement
...

Jurisdictions use four tests to ascertain whether the defendant has committed the attempt criminal
act: proximity test, res ipsa loquitur test,probable desistance test, and the Model Penal
Code’s substantial steps test
...
The distance measured is the distance between preparation for the offense and
successful termination
...


[8]

In some jurisdictions, if the defendant’s criminal intent is clear, the defendant does not need

to come as close to completion of the offense
...


Saylor URL: http://www
...
org/books

Saylor
...
Melissa buys some rat poison at the local hardware store
...
Fortuitously, the
neighbors are on an overnight camping trip, and the dog is with them
...
When she sees the
filet untouched on the ground, she picks it up and takes it back over the fence, later disposing of it in the
trash
...
Melissa and Matthew
finished every act necessary to commit the crime of destruction of property or animal cruelty (poisoning
the dog)
...
Thus Melissa and Matthew could most likely be charged with and
convicted of this offense
...
If Matthew coated the filet with poison but then changed his mind and threw
the filet away, he would still be “too far” away from completing the offense
...


Res Ipsa Loquitur Test
Res ipsa loquitur means “the thing speaks for itself
...
Under res ipsa loquitur or
unequivocality, the trier of fact must determine that at the moment the defendant stopped progressing
toward completion of the offense, it was clear that the defendant had no other purpose than commission
of the specific crime at issue
...


[12]

Example of the Res Ipsa Loquitur Test
Harry wants to kill his wife Ethel for the proceeds of her life insurance policy
...
Harry meets with Joe and
asks him if he will murder Ethel for one thousand dollars
...
saylor
...
org
301

and pays him
...
If the state in which Harry paid
Joe recognizes the res ipsa loquitur or unequivocality test, Harry has most likely committed
attempted murder (along with solicitation to commit murder, which is discussed shortly)
...
Hiring and paying a hit man is more than
just preparation
...

Harry’s conduct “speaks for itself,” which is the essence of res ipsa loquitur or unequivocality
...
Pursuant to this test, a
defendant commits attempt when he or she has crossed a line beyond which it is probable he or she will
not desist unless there is an interruption from some outside source, law enforcement, or circumstances
beyond his or her control
...
Judy drives to Zales at eleven o’clock after the store has closed
...
She then turns off the store security
camera
...
If the state in which Judy
lives follows the probable desistance test, Judy has most likely committed attempted larceny, along
with burglary
...
This series of actions
indicate that Judy crossed a point of no return
...


Model Penal Code Substantial Steps Test
The Model Penal Code developed the substantial steps test in response to the large variance between
different jurisdictions in evaluating the criminal act element required for attempt
...
It is also

Saylor URL: http://www
...
org/books

Saylor
...
”

[14]

The substantial steps test has two parts
...
As the Model Penal Code states, “[a] person is guilty of an attempt to commit a
crime if…he…does…anything which…is an act or omission constituting a substantial step in a course of
conduct planned to culminate in his commission of the crime” (Model Penal Code § 5
...
Second,
the defendant’s actions must be “strongly corroborative of the actor’s criminal purpose” (Model Penal
Code § 5
...
To further elucidate the test, the Model Penal Code provides seven examples of actions
that constitute substantial steps, as long as they arecorroborative of the defendant’s intent
...
01(2))
...
After casing the bank for two
months and determining the date and time that the car makes its delivery, Kevin devises a plan that he
types on his computer
...
Thereafter, he hides in an alley and waits for the truck to arrive
...
He is immediately apprehended by a security guard who saw him emerge from the alley
...
Kevin cased the bank, planned the robbery, showed up on the appointed date and
time with a concealed weapon, and hid in an alley to wait for the truck to appear
...
Thus Kevin has completed three substantial steps that corroborate his
intent as expressed in the plan he typed, which is most likely sufficient to constitute the attempt criminal
act element under the Model Penal Code
...
saylor
...
org
303

Figure 8
...
saylor
...
org
304

Figure 8
...
saylor
...
org
305

Preparatory Crimes
Some states have statutes criminalizing behavior that would be considered preparatoryunder any of the
four attempt act tests
...


[16]

[15]

or

A defendant could be convicted of a preparatory crime and

attempt if the criminal act element for both is present under the circumstances
...
Hal takes the lock pick
out and begins to insert it into the coin shop doorknob
...
If Hal is in a jurisdiction that prohibits the manufacture of burglar’s tools, he probably

Saylor URL: http://www
...
org/books

Saylor
...


Attempt Intent
The criminal intent element required for attempt in the majority of jurisdictions is thespecific
intent or purposely to commit the crime at issue
...
Thus if the prosecution fails to prove beyond a reasonable doubt that the
defendant acted purposefully with intent to commit the crime attempted, this could operate as a failure
of proof defense
...
Eric pauses in front of a sign that states
“Fire Danger Today: High
...
He starts hiking and when he finishes his cigarette, he tosses the lit
cigarette butt into some arid grass
...
Eric probably does not have the
requisite criminal intent for attempted reckless burning
...
Eric’s
conduct is reckless because he is aware of a risk and disregards it
...
However, in this case Eric’s actions demonstrate careless behavior that probably is not sufficient
for the crime of attempt
...


Impossibility as a Defense to Attempt
Two types of impossibility defenses exist: legal impossibility, which can function as a defense to
attempt, and factual impossibility, which generally cannot
...
Factual impossibility means that the
defendant could not complete the crime attempted because the facts are not as he or she believes them to
be
...
saylor
...
org
307

attempt when the defendant “purposely engages in conduct which would constitute the crime if the
attendant circumstances were as he believes them to be” (Model Penal Code § 5
...


Example of Legal Impossibility
Review the example given in with Melissa and Matthew and the attempted poisoning of the neighbor’s
dog
...
Melissa believes that an individual must be twenty-one to purchase
rat poison because that is the law in the state where she lived five years ago
...
The first
store Melissa enters asks for identification when she tries to pay for the rat poison, so Melissa makes an
excuse and leaves
...
Melissa has probably not attempted to purchase rat poison illegally in the
first store she entered
...
Thus her mistaken belief that she is attempting to commit a crime does not transform this
legal act into an illegal one
...
Both Melissa and Matthew are under
the mistaken belief that the dog is present and will eat the filet
...
Thismistake of fact probably will not excuse Melissa and Matthew’s
attempt
...
Thus Melissa and Matthew have most likely
committed attempted destruction of property or animal cruelty regardless of the fact that their plan could
not succeed under the circumstances
...


[18]

The defense has two parts
...
As the Model Penal Code states, “it is an
affirmative defense that he abandoned his effort to commit the crime…under circumstances manifesting a
complete and voluntary renunciation of his criminal purpose…[R]enunciation of criminal purpose is not

Saylor URL: http://www
...
org/books

Saylor
...
01(4))
...
Under the Model Penal Code,
“[r]enunciation is not complete if it is motivated by a decision to postpone the criminal conduct until a
more advantageous time or to transfer the criminal effort to another but similar…victim” (Model Penal
Code § 5
...
The voluntary abandonment defense gives defendants incentive to stop progressing
toward consummation of the offense and prevents the crime from occurring without the need for law
enforcement intervention
...
If Melissa changes her mind after purchasing the rat
poison and talks Matthew out of poisoning the neighbor’s dog, Melissa has voluntarily abandoned the
crime and cannot be charged with attempt
...
Note that both Melissa’s and Matthew’s actions are in the very early stages of the
crime of destruction of property or animal cruelty and probably will be considered preparatory, rather
than constituting the criminal act element required for attempt
...
At this point, the crime of attempt has already been committed, and
neither voluntary abandonmentnor factual impossibility can function as defenses
...


[19]

Example of Merger
Review the example with Melissa and Matthew in
...
Melissa and Matthew probably cannot be charged with
attempted destruction of property or animal cruelty anddestruction of property or animal
cruelty in many jurisdictions
...
saylor
...
org
309

property or animal cruelty
...
3 Defenses to Attempt

Attempt and Transferred Intent
Recall from that a defendant’s criminal intent can transfer from the intended victim to the actual victim
in some jurisdictions
...


Example of Attempt and Transferred Intent
Review the example with Melissa and Matthew in
...
If Melissa and Matthew are in a jurisdiction that
Saylor URL: http://www
...
org/books

Saylor
...


Attempt Grading
Jurisdictions vary as to how they grade attempt
...


[20]

Other jurisdictions punish attempt the same as the

attempted offense, with exceptions for certain specified crimes
...
4 Diagram of Attempt

Saylor URL: http://www
...
org/books

Saylor
...




General attempt statutes set forth the elements of attempt and apply them to any
crime
...


Saylor URL: http://www
...
org/books

Saylor
...




The proximity test determines how close the defendant is to committing the crime by
analyzing how much is left to accomplish after preparation for the offense
...




The probable desistance test analyzes whether the defendant has progressed so far that
it is probable he or she will not desist without interruption from law enforcement or
other intervening circumstances
...




Preparatory crimes criminalize preparing to commit a crime, which would be a stage that
is too premature to constitute the criminal act element required for attempt
...




Aside from failure of proof defenses to attempt act and intent, two potential defenses to
attempt are legal impossibility and voluntary abandonment
...
Factual impossibility is generally not a
defense to attempt
...
Legal
impossibility is generally a defense to attempt
...




In many jurisdictions, attempt merges into the offense if it is completed, which means
that a defendant cannot be charged with attempt and the completed crime
...
saylor
...
org
313



In a jurisdiction that allows for transferred intent, a defendant’s intent can transfer from
the intended victim to the actual victim
...




Some jurisdictions grade attempt lower than the completed offense; others grade
attempt the same as the completed offense, with exceptions
...
Check your answers using the answer key at the end of the chapter
...
Carol shoots her father Carl with malice aforethought
...
Carol is in a jurisdiction that recognizes merger for attempt
and that also requires a victim to die within one year and a day if the defendant is to be
charged with murder
...
Read State v
...
W
...
In Withrow, the defendant made frequent
visits to a house that was under law enforcement surveillance
...
The defendant was convicted
of attempted methamphetamine production and received a sentence of eighteen years
in prison
...
google
...

3
...
Strand, 539 N
...
2d 739 (1995)
...
Did the Michigan Court of Appeals
uphold this conviction? The case is available at this
link: http://scholar
...
com/scholar_case?case=1507705469884283003&hl=en&as_s
dt=2&as_vis=1&oi=scholarr
...
saylor
...
org
314

[1] Yourdictionary
...
yourdictionary
...

[2] Stephen J
...
Kahan, “Attempt,” encyclopedia
...
encyclopedia
...
aspx
...
Schulhofer, Dan M
...
com website, accessed December 26,
2010, http://www
...
com/topic/Attempt
...

[4] Tex
...
01, accessed December 27, 2010,http://law
...
com/texas/penal/15
...
00
...

[5] 18 U
...
C
...
law
...
edu/uscode/718/usc_sec_18_00001113---000-
...

[6] Grill v
...
91 (1995), accessed December 27,
2010,http://www
...
com/xmlResult
...
xml&docbase=CSLWAR
1986-2006
...
Luna, 170 Cal
...
4th 535 (2009), accessed December 27,
2010,http://scholar
...
com/scholar_case?case=11148942163253518924&hl=en&as_sdt=2&as_vis=1&oi=scho
larr
...
Hamel, 52 Mass
...
Ct
...
google
...

[9] People v
...
2d 697 (1983), accessed December 29,
2010,http://scholar
...
com/scholar_case?case=16336126005486548570&hl=en&as_sdt=2,5
...
Dillon, 668 P
...
google
...

[11] USLegal
...
uslegal
...

[12] Hamiel v
...
W
...
google
...

[13] See discussion in U
...
v
...
2d 370, 373 fn
...
resource
...
gov/c/F2/499/499
...
370
...
html
...
saylor
...
org
315

[14] People v
...
2d 697, 720, fn
...
google
...

[15] N
...
Penal Law § 140
...
onecle
...
35_140
...
html
...
Gen
...
§ 53a-106, accessed December 31,
2010,http://www
...
ct
...
htm#Sec53a-106
...

[17] N
...
Penal Law § 110
...
onecle
...
00_110
...
html
...
Stat
...
§ 777
...
justia
...
html
...
Code tit
...
onecle
...
html
...
Ann
...
§ 564
...
justia
...
html
...
Gen
...
§ 53-a-51, accessed December 31,
2010,http://www
...
ct
...
htm#sec53a-51
...


8
...


Explain why conspiracy is an inchoate crime
...
Define the criminal act element required for conspiracy
...
Compare the conspiracy overt act requirement with the criminal act element required
for attempt
...
Define the criminal intent element required for conspiracy
...
Ascertain whether a coconspirator can be criminally responsible when another
coconspirator is not prosecuted or acquitted
...
Ascertain whether a coconspirator must know every other coconspirator to be guilty of
conspiracy
...
Distinguish between a wheel and chain conspiracy
...
Define the Pinkerton rule
...
saylor
...
org
316

9
...

10
...

11
...

12
...

13
...

Conspiracy punishes defendants for agreeing to commit a criminal offense
...
However, a conspiracy is complete as soon as
the defendants become complicit and commit the conspiracy act with the conspiracy intent
...


[1]

If the

defendants commit the crime that is the object of the conspiracy, the defendants are responsible for the
conspiracy and the completed crime, as is discussed in Section 8
...
4 "Consequences of Conspiracy"
...


[2]

The agreement does not need to be formal or in writing
...

commit a felony
...


[6]

The Model

Penal Code requires an overt act only when the planned crime is “other than a felony of the first or second
degree” (Model Penal Code § 5
...
The overt act does not have to be criminal and may be planning or
preparatory activity that would be insufficient to constitute the criminal act element required
for attempt
...
In this example,
Melissa and Matthew agree to poison the neighbor’s dog because it barks every night
...
In a jurisdiction that defines the criminal act element for
conspiracy as an agreement between two or more to commit a criminal offense, Melissa and Matthew

Saylor URL: http://www
...
org/books

Saylor
...
Their
agreement could be verbal and does not need to be formal or in writing
...
Note that the purchase
of the rat poison is not sufficient to constitute the criminal act element required
for attempteddestruction of property or animal cruelty, as discussed in Section 8 "Res Ipsa Loquitur
Test"
...


Conspiracy Intent
The essence of conspiracy is agreement, which requires two or more parties
...


[8]

Pursuant to this unilateral view of conspiracy, a conspiracy may exist between a defendant and a

law enforcement decoy who is pretending to agree
...


[9]

As the Model Penal Code

states, “[a] person is guilty of conspiracy…if with the purpose of promoting or facilitating its commission
he: (a) agrees with such other person…that they…will engage in conduct which constitutes such crime”
(Model Penal Code § 5
...
This intent has two components
...


[10]

Example of Conspiracy Intent
Shelley and Sam meet at a bar and discuss their lack of finances
...
Sam asks Shelley if she would like to help him rob the convenience
store when Steffy is working
...
The two plan the robbery
...
Shelley informs Sam that Steffy is extremely
meek and fearful and will readily hand over cash out of the cash register if Sam uses a fake handgun
...
Shelley and Sam have
the intent to agree to work together because they both need each other to successfully complete the
convenience store robbery
...
Thus if no overt act is required in

Saylor URL: http://www
...
org/books

Saylor
...


Conspiracy Parties
Similar to accomplice liability, the acquittal of or failure to prosecute one party to the conspiracy does
not relieve a coconspirator from criminal responsibility in many states
...


[12]

As

long as the conspiracy defendant is aware that other coconspirators exist, the mens rea for conspiracy is
present
...
03(2))
...

A conspiracy that has more than one criminal objective still can be just one conspiracy
...
03(3))
...
A wheel conspiracy consists of a single conspirator, generally the ringleader who is
interconnected to every other coconspirator
...
An example of a wheel conspiracy would be a mob boss linked to individual members
of the mob following his or her commands
...
An example of a chain
conspiracy is a conspiracy to manufacture and distribute a controlled substance, with the manufacturer
linked to the transporter, who sells to a large-quantity dealer, who thereafter sells to a smaller-quantity
dealer, who sells to a customer
...


Saylor URL: http://www
...
org/books

Saylor
...
5 Comparison of Wheel and Chain Conspiracies

Saylor URL: http://www
...
org/books

Saylor
...


[13]

This rule is called

the Pinkerton rule, based on the US Supreme Court case that created it (Pinkerton v
...
S
...
S
...
saylor
...
org
321

(1946)
...
A defendant who plays a minor role is less likely to be criminally responsible than a defendant
who has a more substantive involvement
...
Assume that on
the night of the convenience store robbery, Lucy, an armed, off-duty police officer, wanders into the store
to purchase cigarettes at the moment Sam pulls out his fake handgun
...
Jolene, another customer in the store, observes
the two pointing guns at each other and suffers a fatal heart attack
...
Shelley and Sam attempted to commit the
robbery in furtherance of the conspiracy
...
Thus both are accountable for the foreseeable consequences
...
Thus Shelley and Sam may be charged with and convicted of Jolene’s murder, which is most
likely felony murder
...


Wharton’s Rule
A criminal offense that requires two parties cannot be the object of a conspiracy that consists of two
parties
...


[15]

However, a statute can

expressly criminalize a conspiracy to commit any crime, abrogating the rule
...


[16]

Example of a Case Where Wharton’s Rule Is Inapplicable
Joanne and Robert conspire with Don, Joanne’s pimp, to engage in prostitution
...
Wharton’s rule probably does not
apply in this case
...
Thus Wharton’s rule is likely inapplicable, and
Don, Joanne, and Robert might have committed conspiracy to engage in prostitution
...
saylor
...
org
322

Joanne and Robert conspire to engage in prostitution, Wharton’s rule may act as a judicial presumption
that they cannot commit conspiracy and the crime it furthers
...
Similar to voluntary abandonment in
attempt, renunciation can operate as a defense to conspiracy in some jurisdictions if the defendant
completely and voluntarily renounces the conspiracy
...
The Model Penal Code allows the defense and provides, “It is an affirmative
defense that the actor, after conspiring to commit a crime, thwarted the success of the conspiracy, under
circumstances manifesting a complete and voluntary renunciation of his criminal purpose” (Model Penal
Code § 5
...


Example of Renunciation
Review the example with Shelley and Sam in Section 8 "Example of Conspiracy Intent"
...
Adjust the
example so that Shelley has a change of heart and contacts law enforcement about the robbery before she
drives Sam to the convenience store in the getaway car
...
Shelley drives Sam to the convenience store as planned
...
As soon as Sam pulls out his fake handgun, they arrest him
...

Although Shelley committed the criminal act for conspiracy with the requisite criminal intent,
shevoluntarily and completely renounced the conspiracy and thwarted the crime that was its object
...


Merger
At early common law, conspiracy, which was a misdemeanor, merged into the completed felony that was
its object
...
As the differences diminished, so did the merger concept
...


Saylor URL: http://www
...
org/books

[18]

Thus a defendant can be charged with and convicted of

Saylor
...
2
...

Figure 8
...


[19]

Others grade conspiracy lower than the most serious conspired offense and do not criminalize

the conspiracy to commit a simple, low-level misdemeanor
...

severely than the crime conspired
...
saylor
...
org
324

Federal RICO
In response to an increase in organized crime, the federal government enacted
theRacketeer Influenced and Corrupt Organization Act (RICO) (18 U
...
C
...
RICO provides
extensive criminal penalties and also a civil cause of action for organized crime and includes all
offenses that are criminal under state or federal law
...
A criminal organization always involves more than one member, and at the very
least rudimentary planning, so conspiracy is a common RICO charge and is often easier to prove than a
completed criminal offense
...
” Some examples of highly publicized RICO defendants are Hell’s Angels,
priests in sex abuse cases,

[25]

and Major League Baseball
...
1 Comparison of Conspiracy and Accomplice Liability

Type of
Liability

Conspiracy

Accomplice

Criminal Act

Criminal Intent

Agreement to commit a crime, false criminal
indictment, false lawsuit, or felony; some
jurisdictions require an overt act in furtherance of
the conspiracy

Specific intent or purposely to
agree to commit the specified
offense(s)

Aid, assist commission of a crime

Specific intent or purposely or
general intent or knowingly,
depending on the jurisdiction

Figure 8
...
saylor
...
org
325

KEY TAKEAWAYS


Conspiracy is an inchoate crime because the defendants might never complete the
offense that is the conspiracy’s object
...




The overt act required for conspiracy can be preparatory activity; the criminal act
element required for attempt must be more than mere preparation
...


Saylor URL: http://www
...
org/books

Saylor
...




A coconspirator does not need to know every other coconspirator; as long as a
coconspirator is aware that there are other members, he or she can be criminally
responsible for conspiracy
...
A chain conspiracy
interconnects the members in a linear fashion
...




Wharton’s rule could create a judicial presumption that a defendant cannot be criminally
responsible for conspiracy and the crime that is its object if the conspiracy has only two
members, and the crime that is its object requires two defendants
...




Generally, conspiracy does not merge like attempt; a defendant can be convicted of
conspiracy and the crime conspired
...
It is not unconstitutional
to grade conspiracy higher than the offense that is its object
...

EXERCISES
Answer the following questions
...


1
...
In Gail and Roger’s state, conspiracy
is punishable as a felony
...
Read State v
...
2d 1014 (2003)
...

Saylor URL: http://www
...
org/books

Saylor
...
google
...
+Blackmer&hl=en&as_sdt=2,5
...
Read Commonwealth v
...
2d 867 (1976)
...
The defendant and others beat the victim with their fists
...
The criminal
actor stabbed the victim, who died as a result
...
Did the Supreme Court of
Pennsylvania uphold the defendant’s convictions? The case is available at this
link:http://scholar
...
com/scholar_case?case=1692554406000599210&hl=en&as_s
dt=2&as_vis=1&oi=scholarr
...
Han, 78 Cal
...
4th 797 (2000)
...
lp
...
com/data2/californiastatecases/g023433
...

In Han, a lurid California case involving twins, three defendants were convicted of burglary, false
imprisonment, and conspiracy to commit murder
...
The
codefendants claimed that the onlydirect evidence of intent to commit murder were statements made by
the defendant Jeen Han before the conspiracy was formed, and defendant Han could not conspire with
herself
...


[29]

Defendant Han became enraged when Sunny pressed charges against her for theft
...


[30]

She actively sought out individuals to help her with her sister’s murder
...
The three broke into Sunny
Saylor URL: http://www
...
org/books

Saylor
...
Receipts produced at trial indicated a purchase of garbage bags, twine, utility
tape, and Pine Sol previous to the incident
...
The court reasoned that the purchase of the twine,
garbage bags, utility tape, and Pine Sol, combined with the actions of the defendants in breaking into the
apartment, tying up the two roommates at gunpoint, and putting them in the bathtub, could be
interpreted as circumstantial evidence of intent to kill, and the trier of fact did not err in making that
conclusion
...
Do you think it is ethical to impute Jeen Han’s intent to murder her twin to the two other
coconspirators, based on the circumstantial evidence presented at trial?
Check your answer using the answer key at the end of the chapter
...
U
...
, 341 U
...
494 (1951), accessed January 3,
2011,http://scholar
...
com/scholar_case?case=13576454585730441281&hl=en&as_sdt=2&as_vis=1&oi=scho
larr
...
Stat
...
§ 777
...
leg
...
fl
...
cfm?App_mode=Display_Statute&Search_String=&URL=07000799/0777/Sections/0777
...
html
...
Bond, 49 Conn
...
183 (1998), accessed January 1, 2011,http://caselaw
...
com/ct-court-ofappeals/1255702
...

[4] Cal
...
justia
...
html
...
Penal Code § 15
...
onecle
...
02
...
html
...
S
...
§ 371, accessed January 1, 2011,http://codes
...
findlaw
...

[7] State v
...
2d 721 (1981), accessed January 1,
2011,http://wings
...
edu/law/bclc/web/azverive
...

[8] Ind
...
in
...
html
...
saylor
...
org
329

[9] Connecticut Criminal Jury Instructions 3
...
jud
...
gov/ji/criminal/part3/3
...
htm
...
Lewis, 220 Conn
...
google
...

[11] Tex
...
02(c), accessed January 3, 2011,http://law
...
com/texas/penal/15
...
00
...

[12] Neb
...
Stat
...
§ 28-202(2), accessed January 3,
2011,http://law
...
com/nebraska/codes/2006/s28index/s2802002000
...

[13] U
...
v
...
3d 761 (1993), accessed January 3,
2011,http://scholar
...
com/scholar_case?case=13576116398000833345&hl=en&as_sdt=2&as_vis=1&oi=scho
larr
...
S
...
Castaneda, 9 F
...
google
...

[15] USLegal, “Definition of Wharton’s Rule,” USLegal
...
uslegal
...

[16] Ianelli v
...
S
...
S
...
google
...

[17] N
...
Stat
...
onecle
...
html
...
U
...
, 364 U
...
587 (1961), accessed January 4,
2011,http://scholar
...
com/scholar_case?case=10261023883092961366&hl=en&as_sdt=2&as_vis=1&oi=scho
larr
...
Cons
...
§ 905, accessed January 4, 2011,http://law
...
com/pennsylvania/crimes-andoffenses/00
...
005
...
html
...
Code Ann
...
justia
...

[21] Cal
...
onecle
...
html
...
saylor
...
org
330

[22] Clune v
...
S
...
S
...
google
...
+US&hl=en&as_sdt=2002&as_vis=1
...
Robert Blakey, “RICO: The Genesis of an Idea,” Abstract, Social Science Research Network website, accessed
January 4, 2011, http://papers
...
com/sol3/papers
...

[24] Keith Zimmerman, Kent Zimmerman, “Hell’s Angel: The Life and Times of Sonny Barger and the Hell’s Angels
Motorcycle Club,” accessed January 4, 2011, http://www
...
de/revbar01sonnybarger
...

[25] Greg Smith, “Courts: Lawsuit Accuses Diocese of Hiding Sex Abuse,” Norwich Bulletinwebsite, accessed
January 4, 2011,http://www
...
com/lifestyles/spirituality/x497774422/Courts-Lawsuit-accusesdiocese-of-hiding-sex-abuse
...
com website, accessed June 28,
2011, http://www
...
com/Daily/Issues/2004/11/Issue-46/Franchises/Arbitration-RulingEffectively-Ends-Loria-Rico-Suit
...

[27] Paul Meyer, “Tom DeLay is sentenced to three years,” Los Angeles Times website, accessed August 15,
2011, http://articles
...
com/2011/jan/11/nation/la-na-tom-delay-20110111
...
beloitdailynews
...
txt
...
Han, 78 Cal
...
4th 797, 802 (2000), accessed January 28,
2011,http://caselaw
...
findlaw
...
pdf
...
Han, 78 Cal
...
4th 797, 803 (2000), accessed January 28,
2011,http://caselaw
...
findlaw
...
pdf
...
Han, 78 Cal
...
4th 797, 803 (2000), accessed January 28,
2011,http://caselaw
...
findlaw
...
pdf
...
Han, 78 Cal
...
4th 797, 804, 805 (2000), accessed January 28,
2011,http://caselaw
...
findlaw
...
pdf
...
3 Solicitation
LEARNING OBJECTIVES
1
...


2
...

Saylor URL: http://www
...
org/books

Saylor
...
Define the criminal intent element required for solicitation
...
Determine whether the defense of renunciation is available for solicitation
...
Discuss various approaches to solicitation grading
...
Solicitation is an inchoate crime because it is possible that the conspiracy will never be formed,
and the crime that is its object willnot be committed
...


Solicitation Act
The criminal act element required for solicitation is generally words that induceanother to commit a
capital felony, first-degree felony,

[1]

or any crime
...
The Model Penal Code defines solicitation as follows: “[a]
person is guilty of solicitation to commit a crime if with the purpose of promoting or facilitating its
commission he commands, encourages or requests another person to engage in specific conduct which
would constitute such crime” (Model Penal Code § 5
...
However, the Model Penal Code does not
require direct communication, if “conduct was designed to effect such communication
...
02(2))
...
If Jimmy is in a jurisdiction that criminalizes the “request” to commit any crime, Jimmy
probably has committed the criminal act element required for solicitation
...
If Jimmy is in a jurisdiction that follows the Model Penal Code, and Jimmy
and Choo had a long-standing arrangement whereby Jimmy puts stolen items in a storage facility so that
Choo can sell them, Jimmy will not have to communicate his request to Choo
...


Solicitation Intent
The criminal intent element required for solicitation is specific intent or purposelyto promote the
crime’s commission in most jurisdictions and under the Model Penal Code, as set forth in
...
saylor
...
org
332

Example of Solicitation Intent
Review the solicitation act example in
...
Thus Jimmy probably
has the criminal intent required for solicitation
...


Renunciation as a Defense to Solicitation
Similar to conspiracy, many jurisdictions allow renunciation as an affirmative defense to
solicitation
...
As the Model Penal Code states, “it is an affirmative defense that the actor, after soliciting
another person to commit a crime, persuaded him not to do so or otherwise prevented the commission of
the crime, under circumstances manifesting a complete and voluntary renunciation of his criminal
purpose” (Model Penal Code § 5
...


Solicitation Grading
Jurisdictions vary as to how they grade solicitation
...

solicitation the same as the crime solicited, with exceptions
...


[6]

[5]

Others grade

Some states grade solicitation as a

[7]

Figure 8
...
saylor
...
org
333

KEY TAKEAWAYS


Solicitation is an inchoate crime because the crime that is solicited may not be
completed
...




The criminal intent element required for solicitation is specific intent or purposely to
induce another to commit any crime, a capital felony, or first-degree felony
...




Jurisdictions vary in their approach to grading solicitation
...


Saylor URL: http://www
...
org/books

Saylor
...
Check your answers using the answer key at the end of the chapter
...
Nancy asks Jennifer to help her counterfeit twenty-dollar bills
...
Has a
crime been committed in this situation?
2
...
State, 9 S
...
3d 156 (1999)
...
The defendant was convicted of solicitation to commit murder
...
Did the Court of
Criminal Appeals of Texas uphold the defendant’s conviction? The case is available at
this link:http://caselaw
...
com/tx-court-of-criminal-appeals/1007515
...

3
...
Dennis, 340 N
...
2d 81 (1983)
...
The
defendant appealed based on the fact that she solicited a police officer posing as a hit
man, so the police officer did not have the intent to murder, and thus the murder was
not possible
...
google
...

Next
[1] Tex
...
03, accessed January 6, 2011,http://law
...
com/texas/penal/15
...
00
...

[2] N
...
Penal Law § 100
...
onecle
...
00_100
...
html
...
Rev
...
§ 161
...
onecle
...
435
...

[4] Ariz
...
Stat
...
azleg
...
asp?inDoc=/ars/13/01005
...

[5] Ala
...
onecle
...
html
...
saylor
...
org
335

[6] N
...
Rev
...
Ann
...
justia
...
html
...
Barsell, 424 Mass
...
google
...


8
...
The rationale of punishing a defendant for an inchoate
crime is prevention and deterrence
...

The criminal act element required for attempt must be more than thoughts or mere preparation
...
The proximity test analyzes how close the defendant is to
completing the offense by examining how much is left to be done
...
The
res ipsa loquitur test looks at the moment in time when the defendant stopped progressing toward
completion to see if the defendant’s acts indicate that the defendant has no other purpose than
commission of the offense
...
The Model Penal Code
substantial steps test has two parts
...
Second, the defendant’s actions must strongly corroborate the defendant’s criminal purpose
...
Preparatory crimes can be combined with attempt under the appropriate circumstances
...
Legal impossibility can be a defense to attempt if the defendant mistakenly believes that a legal
act attempted is illegal
...
Voluntary abandonment is also a defense
to attempt in some jurisdictions if the defendant voluntarily and completely renounces the attempted
crime
...
saylor
...
org
336

If a jurisdiction recognizes transferred intent, a defendant can be criminally responsible for attempt
against the intended victim and the completed offense against the actual victim
...
Jurisdictions vary as to how they grade attempt;
either attempt is graded the same or lower than the completed offense
...
Some
jurisdictions also require an overt act in furtherance of the conspiracy that could be a legal or preparatory
act
...
In some states, a coconspirator can be prosecuted
even if another coconspirator is not prosecuted or acquitted
...
A wheel conspiracy
connects all members to one central member
...

The Pinkerton rule holds coconspirators criminally responsible for every foreseeable crime committed in
furtherance of the conspiracy
...

Renunciation can be a defense to conspiracy if a coconspirator voluntarily and completely abandons the
conspiracy and thwarts the crime that is its object
...
Jurisdictions vary as to how they grade conspiracy
...
The federal RICO statute is targeted at organized crime,
including conspiracy
...
The criminal act element required for solicitation is words or conduct of inducement
...

Renunciation is a defense to solicitation if it is voluntary and complete and thwarts the solicited offense
...
Some grade solicitation the same as the crime

Saylor URL: http://www
...
org/books

Saylor
...


YOU BE THE PROSECUTOR
You are a prosecutor seeking a promotion
...
Read the prompt, review the case, and then decide whether you
would accept or reject it from a pool of cases available to junior prosecutors
...


1
...
A
witness identified the defendant, a police officer, as someone who sexually assaulted her
at gunpoint
...
He was thereafter apprehended
with a gun he had recently test-fired in the vicinity of the witness’s house, which he had
located with the FBI informant on a previous occasion
...
Will
you accept or reject the case? Read U
...
v
...
2d 232 (1991)
...
resource
...
gov/c/F2/950/950
...
232
...
html
...
The defendant, a substitute teacher, is charged with two counts of attemptedchild
sexual abuse for blocking the door of his residence and refusing to allow his thirteenyear-old student to leave
...
Will you accept or reject the
case? Read People v
...
Y
...
2d 443 (2008)
...
google
...

3
...
The defendant and an acquaintance agreed to shoot at
some individuals near a housing project and walked over carrying guns
...
saylor
...
org
338

and killed
...
Will you accept or reject the case? Read State v
...
App
...
The case is available at this
link:http://scholar
...
com/scholar_case?case=355479416909506104&hl=en&as_sdt
=2&as_vis=1&oi=scholarr
4
...
The defendant was in a
vehicle with other individuals, and a drug dealer approached them
...
Thereafter, a police officer who had witnessed the transaction
arrested everyone in the car
...
Pinson,
895 P
...
The case is available at this
link: http://scholar
...
com/scholar_case?case=1966550891971070482&hl=en&as_s
dt=2&as_vis=1&oi=scholarr
...
Hart, 176 Cal
...
4th 662 (2009), discusses attempt and the natural and
probable consequences
doctrine:http://scholar
...
com/scholar_case?case=9438325952737556456&hl=
en&as_sdt=2&as_vis=1&oi=scholarr
...
S
...
Guest, 383 U
...
745 (1966), discusses conspiracy and the US
Constitution: http://www
...
org/cases/1960-1969/1965/1965_65
...
State, 2007 Tex
...
LEXIS 6139 (2007), discusses solicitation to commit
capital
murder:http://www
...
com/lx1/caselaw/freecaselaw?action=OCLGetCaseDetail&
format=
FULL&sourceID=bcdba&searchTerm=eQCD
...
UYGX
...


Articles of Interest


Criminal attempt: http://www
...
com/doc/1G2-3403000027
...
saylor
...
org
339



José Padilla’s conspiracy
conviction:http://www
...
com/2008/01/23/us/23padilla
...
uconn
...
cgi?article
=1071&context=econ_wpapers

Websites of Interest


Discussion on various crimes, including inchoate
crimes:http://criminal
...
com/conspiracy



Information about the RICO Act: http://www
...
com

Answers to Exercises
From

1
...
If her father did not die within one year and a day, Carol could only
be charged with attempted murder
...

2
...
Following a
substantial steps analysis, the court determined that in the absence of evidence that the
defendant placed the pills inside the jar, the defendant must be in possession of the jar
to be guilty of attempted methamphetamine production, and the facts did not
indicate that possession
...
The Michigan Court of Appeals reversed the defendant’s conviction, reasoning that
assault with intent to commit attempted kidnapping is a nonexistent offense because it
would require the specific intent to commit anuncompleted crime
...
Gail and Roger can be convicted of felony conspiracy to commit
amisdemeanor because it is not unconstitutional to punish conspiracy more severely
than the crime that is its object
...
saylor
...
org
340

2
...

3
...


Answers to Exercises
From

1
...
It is of
no import that Jennifer refuses Nancy’s request because the criminal act element of
solicitation is requesting another to commit a crime, not a mutual understanding or
agreement (like conspiracy)
...
The Court of Criminal Appeals of Texas reversed the defendant’s conviction, agreeing
with the defendant that he solicited a payment, not a murder
...
The Michigan Court of Appeals upheld the defendant’s conviction, based on the plain
meaning of the statute that does not require the individual solicited to have the intent to
commit the crime solicited
...


One of the biggest concerns about the crime of conspiracy is that it is easier to prove
than many substantive crimes
...
The Han case also illustrates this principle
...

However, the rationale supporting conspiracy—that it is more likely that a crime will be
completed if it is a group effort—is also illustrated by the Han case
...
She seemed unwilling or possibly

Saylor URL: http://www
...
org/books

Saylor
...
Once she had the support of the other two
codefendants, she was able to move forward with the offense
...
However, appellate courts give the
trier of fact the benefit of the doubt because the judge or jury views the
evidence firsthand—rather than simply reading it in a court transcript
...


Answers to You Be the Defense Prosecutor
1
...
The court specifically
held that the defendant’s expressed intent to kill, combined with his efforts to find the
witness’s house, and his possession of a gun that had recently been test-fired in the
vicinity of the witness’ house was enough to constitute a “substantial step” toward
completion of the offense of killing the witness
...


2
...
The court stated that evidence indicating
the defendant blocked the door and tried to kiss the student, coupled with physical and
verbal coercive conduct, could constitute the criminal act element of attempted child
sexual abuse
...

3
...
A defendant cannot have the
specific intent to commit a reckless intent crime
...

4
...
The court reasoned that trafficking narcotics
criminalizes only the sale (not the purchase) of narcotics, and narcotics cannot be sold

Saylor URL: http://www
...
org/books

Saylor
...
Thus you would lose on the solicitation charge and should reject the
case
...
U
...
, cited in Section 9 "Inference of Intent"

9
...


Define homicide
...
Recognize that all homicides are not criminal
...
Identify the corpus delicti components in a criminal homicide
...
Compare the definition of fetus in criminal homicide and feticide statutes
...
Compare common-law feticide and suicide with modern views
...
Ascertain whether it is constitutional to criminalize assisted suicide
...
You also learn that suicide is not criminal, but assisted suicide might be, depending on the jurisdiction
...
Homicide is not always criminal
...

Homicide law in the United States has its origins in the English common law
...
Justifiable homicides were
not criminal because they did not include the concept of guilt
...
Felonious homicides were criminal and were considered the most
heinous offenses known to man
...
Gradually, as the
law evolved, unlawful killings were divided into murder and manslaughter based on the defendant’s
Saylor URL: http://www
...
org/books

Saylor
...
Murder had the criminal intent element of malice aforethought and remained a capital
offense
...

In modern times, most states define criminal homicide and its elements in statutes, which often are
interpreted by case law
...


Corpus Delicti in Criminal Homicide
An essential component of every criminal case, including criminal homicide, iscorpus delicti
...
The prosecution must prove corpus delicti beyond a
reasonable doubt, with evidence other than a defendant’s confession
...

Often the victim’s body is never discovered, which could make it more difficult for the prosecution to
prove corpus delicti but not impossible
...


Feticide
Feticide is the intentional destruction of a fetus
...


[2]

The Model Penal Code takes this approach and defines

human being as “a person who has been born and is alive” (Model Penal Code § 210
...
The modern
trend in many jurisdictions is to include the fetus as a victim in a criminal homicide or feticide statute,
exceptingabortion
...
Many states and the federal government consider an embryo a fetus from the time of
conception
...


[4]

A few states do not consider the

fetus a victim of criminal homicide or feticide until it is viable and can survive outside the womb
...
saylor
...
org
344

Figure 9
...
saylor
...
org
345

Suicide
At common law, suicide was a crime
...

In modern times, most states do not criminalize suicide
...


[6]

Several states have

special statutes that specifically punish assisted suicide less severely than their first- or second-degree
murder statutes
...


[8]

[7]

A minority of states allow terminally ill patients to end their lives with the assistance of

The Model Penal Code provides that “[a] person who purposely aids or solicits another to

commit suicide is guilty of a felony of the second degree if his conduct causes such suicide or an attempted
suicide” (Model Penal Code § 210
...


KEY TAKEAWAYS


Homicide is the killing of one human being by another
...
For example, a lawful execution pursuant to the death
penalty is homicide, but it is not criminal homicide
...




States that criminalize feticide consider an embryo a fetus at the moment of conception,
when it quickens in the womb, or when it is viable and can survive outside the womb
...

At common law, the following applied:

o

Feticide was not a crime; only a person “born alive” could be the victim of
criminal homicide
...


The US Supreme Court has held that it is constitutional to criminalize assisted suicide,
and most states do
...


EXERCISES
Answer the following questions
...


1
...
saylor
...
org
346

2
...
Glucksberg, 521 U
...
702 (1997)
...
google
...
+Glucksberg&hl=en&as_sdt=2,5
...
Ochoa, 966 P
...
google
...

[2] Keeler v
...
3d 619 (1970), accessed July 10,
2010,http://scholar
...
com/scholar_case?case=2140632244672927312&hl=en&as_sdt=2&as_vis=1&oi=schol
arr
...
Code § 13A-6-1, accessed February 13, 2010,http://www
...
state
...
us/codeofalabama/1975/13A6-1
...

[4] Fla
...
§ 782
...
lawserver
...

[5] Ind
...
in
...
html
...
Glucksberg, 521 U
...
702 (1997), accessed July 10,
2010,http://scholar
...
com/scholar_case?case=17920279791882194984&q=
Washington+v
...

[7] Tex
...
08, accessed July 10, 2010,http://law
...
com/texas/penal/22
...
00
...

[8] Or
...
Stat
...
800 et seq
...
onecle
...
html
...
2 Murder
LEARNING OBJECTIVES
1
...


2
...


Saylor URL: http://www
...
org/books

Saylor
...
Identify, describe, and compare the three types of malice aforethought and the three
Model Penal Code murder mental states
...
Explain the deadly weapon doctrine
...
Define death
...
Give examples of justifiable and excusable homicides
...
Ascertain which type of criminal homicide the defendant commits when deliberately and
inadvertently transmitting AIDS
...
In this section, you
learn the elements of murder
...


Murder Act
Most jurisdictions define the criminal act element of murder as conduct that causes the victim’s
death
...
Like all criminal acts, the conduct must be undertaken voluntarily and cannot be the result of
a failure to act unless a duty to act is created by common law or statute
...
At common law, the
criminal intent element of murder was malice aforethought
...


[2]

The Model Penal Code defines murder

intent as purposely,knowingly, or recklessly under circumstances manifesting extreme indifference
to the value of human life (Model Penal Code § 210
...

An exception to the criminal intent element of murder is felony murder
...
Felony murder is discussed shortly
...
Nor is it hatred of the
victim
...
Malice is apparent in three criminal homicide situations: the defendant intends to kill the

Saylor URL: http://www
...
org/books

Saylor
...

The specific intent to kill the victim corresponds with the Model Penal Code’spurposely murder mental
state and is often referred to as express malice
...
Serious bodily injury is a technical term and is generally defined in a state statute or by
case law
...
0(3))
...


Example of Intent to Kill
Jay decides he wants to kill someone to see what it feels like
...
Jay is acting with the intent to
kill, which would be express malice or purposely
...
Jay waits for Robbie outside the locker room and when Robbie exits, Jay attacks him and stabs him
several times in the knee
...
Jay is acting with the intent to cause serious bodily injury, which would be implied
malice, or knowingly or recklessly under circumstances manifesting extreme indifference to the value of
human life
...
Jay decides to teach
Brittany a lesson
...
He thereafter leaves, feeling vindicated at the thought of her
walking over ten miles to the nearest telephone
...
Brittany dies of exposure and acute
hypothermia
...


Saylor URL: http://www
...
org/books

Saylor
...


The Meaning of Aforethought
The term aforethought at common law meant that the defendant planned or premeditated the killing
...
Premeditation is a factor that can elevate murder to first-degree murder, as is discussed shortly
...


[5]

A judge may instruct the jury that they can infer the defendant intended the natural and

probable consequences of the criminal act, which are death when a deadly weapon is utilized
...

A deadly weapon is any instrumentality that can kill when used in a manner calculated to cause death or
serious bodily injury
...
0 (4))
...
Aside from creating an inference of
intent for murder, use of a deadly weapon may alsoenhance a sentence for certain crimes
...
The defendant must be the factualand legal cause of a
very specific harm—the victim’s death
...
If a state has a one or
three years and a day rule, this could complicate the causation scenario when a victim’s life is artificially
extended
...
In addition, co-felon
liability could extend criminal responsibility to defendants that did not actually kill the victim, as is
discussed shortly
...
With the advent of life-sustaining
machines, jurisdictions have had to develop a definition for the termdead
...


Saylor URL: http://www
...
org/books

[7]

Saylor
...
2 Diagram of Murder

Justification and Excuse
As Blackstone stated, murder cannot be justified or excused
...
A thorough discussion of defenses based on justification and excuse is in and
...
One example of a
justifiable homicide is when a law enforcement officer shoots and kills a fleeing felon to prevent imminent
great bodily injury or death
...
The justification negates the criminality and the law enforcement officer will not be
convicted of murder
...
Other murder defenses based on justification are self-defense,
defense of others, and defense of habitation
...
One example of an excusable
homicide is a homicide committed by a defendant who is found legally insane
...
The excuse negates the
criminality and the defendant will not be convicted of murder
...


AIDS and Homicide
The criminal transmission of AIDS is a new and evolving topic with state and federal courts and criminal
codes
...
Death by the inadvertent transmission of AIDS is more

Saylor URL: http://www
...
org/books

Saylor
...
For states that follow the one or three years and a day rule, the time limit could affect any
murder or manslaughter charge because medical breakthroughs have extended the life span of AIDS
victims significantly
...
1 Murder Rate in the United States: Percent Change January–December

Years

Percent Change/Murder Rate

2006/2005 +1
...
6
2008/2007 −3
...
2
Source: Department of Justice, “Crime in the United States; Preliminary Annual Uniform Crime Report,”
accessed July 28, 2010,http://www
...
gov/ucr/prelimsem2009/table_3
...


KEY TAKEAWAYS


The criminal act element required for murder is conduct that causes the victim’s death
...




The three types of malice aforethought are intent to kill, intent to cause serious bodily
injury, and depraved heart
...




Express malice is the intent to kill the victim, or purposely, under the Model Penal Code
...
Implied malice, knowingly, and recklessly includes the
intent to commit serious bodily injury and depraved heart intent
...
If the trier of fact accepts the inference, the prosecution does not
have the burden of proving criminal intent
...
saylor
...
org
352



A human being is dead when there is irreversible cessation of the entire brain, including
the brain stem
...
An example of an excusable homicide is a killing perpetrated by a
legally insane defendant
...
When a victim dies because of the
inadvertent transmission of AIDS, the crime is most likely manslaughter, although
modern courts could begin to imply malice or murder intent in this situation
...
Check your answers using the answer key at the end of the chapter
...
Jay is angry about the grade he received on his criminal law midterm
...
Unfortunately, Jay is an inexperienced marksman and the bullet strikes an
innocent bystander in the forehead, killing him
...
A prosecutor reviews the file for Jay’s criminal case
...
” Is this
true? Why or why not?
3
...
S
...
Moore, 846 F
...
Did the US Court of Appeals for the Eighth
Circuit hold that teeth are a deadly weapon when the defendant is infected with the HIV
virus? The case is available at this link:http://openjurist
...


[1] N
...
Penal Law § 125
...
onecle
...
27_125
...
html
...
Penal Code § 187, accessed February 4, 2011,http://law
...
com/california/codes/2009/pen/187199
...

[3] N
...
S
...
020(1), accessed February 13, 2011,http://law
...
com/nevada/crimes/200
...
html
...
R
...
§ 200
...
onecle
...
020
...

Saylor URL: http://www
...
org/books

Saylor
...
Carines, 597 N
...
2d 130 (1999), accessed February 13,
2011,http://scholar
...
com/scholar_case?case=6441565823584670121&q=
deadly+weapon+doctrine&hl=en&as_sdt=2,5
...
United States, 164 U
...
388 (1896), accessed February 13,
2010,http://scholar
...
com/scholar_case?case=16538901276155737856&hl=en&as_sdt=2&as_vis=1&oi=scho
larr
...
gencourt
...
nh
...
htm
...
Stat
...
§ 609
...
revisor
...
gov/statutes/?id=609
...


9
...


Ascertain the three types of murder that are typically first degree
...
Define premeditated murder
...
Explain the significance of the criminal act element of murder in premeditated murder
...
Define murder by a specified means
...
Give examples of specified means for first-degree murder
...
Analyze first-degree murder grading
...
Ascertain the circumstances that merit capital punishment
...
Keep in mind that the
criminal act, criminal intent, causation, and harm elements of murder have already been discussed
...
Felony murder is discussed
shortly
...
A common statutory definition of first-degree premeditated murder is a willful,
deliberate, premeditated killing
...
saylor
...
org
354

Definition of Willful, Deliberate, and Premeditated
Most jurisdictions define willful as a specific intent to kill, purposely, or express malice
...
A minority of jurisdictions equate
express malice or purposely with deliberation and premeditation, which means that the prosecution need
only prove specific intent to kill for a first-degree premeditated murder conviction
...
The majority of
jurisdictions have defined deliberate as calm and methodical, without passion or
anger
...


[4]

In other

words, if the defendant specifically intends to kill the victim and rationally, purposefully, takes steps that
culminate in the victim’s death, the defendant has committed first-degree premeditated murder in many
jurisdictions
...
If the killing is
carried out in a manner that indicates a strong and calculated desire to bring about the victim’s death, the
trier of fact can and often does conclude that the murder was premeditated
...


[6]

Thus a

murder can be premeditated and first degree even if it is conceived only moments before the actual
killing
...


[8]

Example of a Willful, Deliberate, Premeditated Murder
Imagine that Joannie and her husband Tim are in a terrible fight in the kitchen
...
Joannie states,
“Wait here
...
I will be right back
...
She then
walks to the bathroom and flushes the toilet
...

In this scenario, Joannie probably could be convicted of premeditated murder in most jurisdictions
...
Her manufactured
excuse and flushing of the toilet indicate planning
...
Note

Saylor URL: http://www
...
org/books

Saylor
...
Even a few minutes are enough to carry out a premeditated murder if the
proper facts are present
...
Frank, Dillon’s supervisor, calls Dillon into his office
and fires him
...
In this example, Dillon acts in anger, not calm, cool, reflection
...
There is no evidence to
indicate that Dillon knew he would be fired or knew that there was a brass paperweight on Frank’s desk
...
Dillon’s conduct may be supported by murder intent (most likely implied
malice, knowingly, or recklessly under circumstances manifesting extreme indifference to the value of
human life), but there is no evidence of specific intent to kill, deliberation, or premeditation
...


Murder by a Specified Means
Murder by a specified means is a specific method of killing that is extremely heinous
...
Some examples of commonly included specified
means are murder by drive-by shooting, destructive device like a bomb, weapon of mass destruction,
ammunition designed to puncture a bulletproof vest, poison, torture, or lying in wait, which is an ambushstyle killing
...

Figure 9
...
saylor
...
org
356

First-Degree Murder Grading
Most states divide murder into first and second degree
...


[11]

[10]

Some states add a third degree of murder that

The Model Penal Code classifies all murders as felonies of the

first degree (Model Penal Code § 210
...

First-degree murder is the highest classification of murder and results in the most extreme punishment available in a
jurisdiction’s punishment scheme
...


[12]

If the jurisdiction does not allow for the

death penalty, first-degree murder often qualifies the defendant for life in prison
...


[14]

A discussion of crimes against the government (such as treason) that merit the

death penalty is in Chapter 13 "Crimes against the Government"
...
Examples of aggravating factors are killing more than one person, killing for
financial gain, killing with a particularly heinous method, or killing a peace officer
...
Examples of
Saylor URL: http://www
...
org/books

Saylor
...


[16]

Figure 9
...
They also convicted him of second-degree murder for the killing of his unborn son
Conner
...


[18]

After issuing the verdict, the jury

sentenced Peterson to death based on the special circumstance of killing more than one person
...


[19]

[20]

Congress was inspired by the Peterson case to pass the Unborn Victims of Violence Act, 18 U
...
C
...


KEY TAKEAWAYS


Most states and the federal government include premeditated murder, murder by a
specified means, and felony murder in their first-degree murder statutes
...
An extensive length of time between the formation of criminal intent and the
criminal act is not generally a requirement of premeditated murder
...
If the killing is carried
out in a manner that indicates a strong and calculated desire to bring about the victim’s
death, the trier of fact can conclude that the murder was premeditated
...


Saylor URL: http://www
...
org/books

Saylor
...




First-degree murder is the highest classification of murder with the most severe
sentencing options
...
If the
jurisdiction does not allow for capital punishment, first-degree murder often qualifies
the defendant for life in prison
...
In most jurisdictions, the defendant must commit first-degree murder
combined with one or more aggravating factors that are not outweighed by mitigating
factors to receive the death penalty
...
Check your answers using the answer key at the end of the chapter
...
Johnnie decides he wants to kill Marcus, the leader of a rival gang
...
Johnnie puts his gun
in the glove compartment of his car and drives to the gas station on a Friday night
...
He slowly drives by, takes aim, and shoots Marcus from
the car, killing him
...

2
...
West, 844 S
...
2d 144 (1992)
...
google
...

3
...
S
...
Downs, 56 F
...
Identify motive, planning, and preconceived
design in this case
...
resource
...
gov/c/F3/56/56
...
973
...
html
...
saylor
...
org
359

[1] Mich
...
Laws § 750
...
onecle
...
html
...
State, 835 So
...
google
...

[3] People v
...
2d 942 (1968), accessed February 13,
2011,http://scholar
...
com/scholar_case?case=9215896464929219588&q=
definition+of+deliberate+premeditated+murder&hl=en&as_sdt=2,5
...
Cole, 95 P
...
google
...


[5] State v
...
2d 706 (1957), accessed September 19,
2010,http://scholar
...
com/scholar_case?case=16193283019378884065&hl=en&as_sdt=2&as_vis=1&oi=scho
larr
...
Carroll, 412 Pa
...
google
...

[7] State v
...
google
...

[8] State v
...
2d 706 (1957), accessed September 19,
2010,http://scholar
...
com/scholar_case?case=16193283019378884065&hl=en&as_sdt=2&as_vis=1&oi=scho
larr
...
Penal Code § 189, accessed February 18, 2010,http://law
...
com/california/penal/189
...

[10] N
...
S
...
030, accessed February 13, 2011,http://law
...
com/nevada/crimes/200
...
html
...
Cons
...
Ann
...
buffalo
...
html
...
R
...
§ 200
...
onecle
...
030
...


Saylor URL: http://www
...
org/books

Saylor
...
4 Felony Murder
LEARNING OBJECTIVES
1
...


2
...

3
...

4
...

5
...

6
...

7
...

8
...

Felony murder is a criminal homicide that occurs during the commission or attempted commission of a felony
...


[1]

However, it has not been universally

adopted
...
It does suggest a rebuttable presumption that
killings that occur during the commission of specified dangerous felonies exhibit recklessness under circumstances
manifesting extreme indifference to the value of human life (Model Penal Code § 210
...


Felony Murder Intent
What distinguishes felony murder from murder is the absence of the typical murderintent
...


Explanation of Felony Murder Intent
When the defendant commits a felony that is inherently dangerous to life, he or she does so knowing that
some innocent victim may die
...
What is
difficult to justify is a conviction for felony murder when the felony is not inherently dangerous to life
...
saylor
...
org
361

violence or death
...


[2]

Example of Felony Murder Intent
Joaquin, who has just lost his job, decides to burn down his apartment building because he can’t afford to
pay the rent
...
He then runs outside to watch the entire building burn
down
...
In jurisdictions that recognize felony
murder, Joaquin can probably be charged with and convicted of murder for every one of these deaths
...
However, he did most likely have the criminal
intent necessary for arson
...
Note that Joaquin
exhibited extreme indifference to whether the tenants in the building lived or died, which could also
constitute the criminal intent of implied malice or depraved heart
...
Group
participation in criminal conduct could constitute more than one crime—for example, conspiracy—and
could also place criminal responsibility squarely on a defendant who did not commit the criminal act
...


[3]

Example of Co-Felon Liability for Felony Murder
Joe and Jane dream up a plan to rob a local bank
...
Jane’s role in the
felony is to drive the getaway vehicle to the bank, wait outside the front door with the motor running, and
transport Joe and the money back to their apartment after the bank transaction is completed
...
He passes the note to the teller, and she frantically
summons a security guard
...
An elderly lady
standing to the left of Joe suffers a heart attack and dies at the sight of the gun
...
Note that Jane did nothing to directly cause the victim’s

Saylor URL: http://www
...
org/books

Saylor
...
However, Jane did drive the getaway vehicle with the criminal intent to commit
robbery, so Jane is criminally responsible for the consequences in many jurisdictions
...


[4]

Example of the Exception to Co-Felon Liability for Felony Murder
Review the example with Joe and Jane in
...

Joe and Jane plan the “robbery” so that Jane is to pretend Joe is a customer, and hand Joe all the money
in her station after he enters the bank unarmedand passes her a phony check made out to “cash
...
” The security guard observes Jane handing
Joe large amounts of cash
...
Joe notices and frantically pulls
out the gun and points it at the security guard
...
In this example, Jane may have a valid defense to co-felon liability
for the elderly lady’s death in some jurisdictions
...
Thus it is possible that in certain
jurisdictions only Joe is subject to a conviction of felony murder in this case
...
In some jurisdictions, this criminal liability exists even when someone other than a cofelon kills the victim
...
If the

security guard takes a shot at Joe but misses and kills the bank teller instead, both Joe and Jane are guilty
of the bank teller’s death pursuant to this interpretation of the felony-murder doctrine
...


[6]

In the case of Joe and Jane discussed in , if the

security guard shoots and kills Joe in a jurisdiction that recognizes this exception, Jane is not guilty of
felony murder
...
saylor
...
org
363

Concurrence of the Felony and the Death of the Victim
Another important aspect that must be analyzed in any felony murder case is theconcurrence of the
felony and the death of the victim
...
Therefore, there must be a determination of (1) when the felony begins and (2)
when the felony ends
...


Example of a Death That Occurs before the Felony Begins
Carlos shoots and kills his drug dealer in a fit of temper because the drugs he bought are placebo
...
Carlos
thereafter steals some cash from the drug dealer’s pockets and runs off
...
Carlos stole money from his drug dealer, but the theft occurred after
the murder
...
If premeditation is proven, this could still
be first-degree murder, but it is not first-degree felony murder
...
The general rule is that the
felony ends when the defendant has reached a place of temporary safety
...
Pursuant to this rule, a death that occurs
during a car chase as the defendants flee the scene of the crime is considered felony murder
...
saylor
...
org
364

Figure 9
...


[9]

Some common examples of felonies listed in

first-degree murder statutes are arson, rape, carjacking, robbery, burglary, kidnapping, and certain
forcible sexual felonies
...




If a felony is inherently dangerous to life, the defendant may act with implied malice,
knowingly, or recklessly manifesting extreme indifference to human life when
committing or attempting to commit the felony
...


Saylor URL: http://www
...
org/books

Saylor
...




In some jurisdictions, all co-felons are criminally responsible for felony murder when
someone other than a co-felon kills a victim during the commission or attempted
commission of a felony that is inherently dangerous to life
...




The killing must take place during the commission or attempted commission of a felony
for the felony murder rule to apply
...
Typical felonies that classify felony
murder as first degree are arson, rape, carjacking, robbery, burglary, kidnapping, and
certain forcible sexual felonies
...
Check your answers using the answer key at the end of the chapter
...
Read People v
...
W
...
Did the Minnesota Supreme Court
uphold a charge of second-degree felony murder when the underlying felonies were
possession of a firearm by a convicted felon and possession of a stolen firearm? The case
is available at this
link:http://www
...
com/lx1/caselaw/freecaselaw?action=OCLGetCaseDetail&form
at=FULL&sourceID=bdjhdg&searchTerm=
ejhU
...
aadj
...

2
...
As the cashier hands him money out of the
cash register, Kurt hears a siren and runs outside, stuffing the money in his pockets
...
While he crouches there waiting for the police to
leave, a homeless person living in the alley taps him on the shoulder
...
Is this felony murder? Explain your
answer
...
saylor
...
org
366

3
...
Florida, 458 U
...
782 (1982)
...
On which part of the
Constitution did the Court rely in reaching this holding? The case is available at this
link:http://www
...
cornell
...
html
...
S
...
§ 1111, accessed February 4, 2011,http://codes
...
findlaw
...

[2] Fla
...
Ann
...
04[4], accessed February 18, 2010,http://law
...
com/florida/crimes/782
...
html
...
Hoang, 755 P
...
google
...

[4] N
...
Penal Law § 125
...
onecle
...
25_125
...
html
...
Hernandez, 82 N
...
2d 309 (1993), accessed February 18,
2010,http://scholar
...
com/scholar_case?case=3094702040122584711&q=
People+v
...
Y
...

[6] State v
...
J
...
audiocasefiles
...

[7] People v
...
2d 487 (2005), accessed February 18,
2010,http://scholar
...
com/scholar_case?case=5918096649976465300&q=
felony+murder+%22temporary+safety%22&hl=en&as_sdt=2,5
...
Code Ann
...
11 § 636 (a) (2), accessed February 18,
2010,http://law
...
com/delaware/codes/title11/c005-sc02
...

[9] Fla
...
Ann
...
04, accessed February 18, 2010,http://law
...
com/florida/crimes/782
...
html
...
Penal Code § 189, accessed February 18, 2010,http://law
...
com/california/penal/189
...


9
...


Compare statutory definitions of second-degree murder
...
saylor
...
org
367

2
...

3
...

States that classify murder as either first or second degree often define second-degree murder as any murder that is
not first-degree murder
...
It includes implied malice murder, such as murder committed with the intent to inflict serious bodily injury
and depraved heart murder
...


[2]

This definition embodies the concept, discussed previously, of murders committed with a depraved

or abandoned and malignant heart
...

Whether the killing is a second-degree murder or manslaughter is left to the trier of fact and often rests on
the degree of recklessness exhibited
...
If the defendant’s conduct is simply reckless, the killing is
manslaughter
...
It must
be left directly to the trier of fact under instructions which make it clear that recklessness that can fairly
be assimilated to purpose or knowledge should be treated as murder and that less extreme recklessness
should be punished as manslaughter” (A
...
I
...
2,
Comment
...
21–22 (1980))
...
Doug’s daughter leaves the party with her mother, Doug’s ex-wife
...
He thereafter
begins driving home
...
He grabs his phone and starts reading the text
...
Doug puts his vehicle in reverse, drives around the car he hit, and leaves the scene of the

Saylor URL: http://www
...
org/books

Saylor
...
These facts could give rise to a conviction for depraved heart second-degree murder
...
Thus the trier of fact could find Doug guilty of murder
rather than manslaughter in this case
...
6 Diagram of Second-Degree Murder

Saylor URL: http://www
...
org/books

Saylor
...


[3]

Most jurisdictions grade second-degree murder higher than manslaughter because
[4]

it has a more heinous criminal intent
...


KEY TAKEAWAYS


Second-degree murder is often defined as any murder that is not first-degree murder
...




Second-degree murder includes implied malice murder, such as murder with the intent
to cause serious bodily injury, and depraved heart murders
...
saylor
...
org
370



Second-degree murder is graded lower than first-degree murder but higher than
manslaughter
...
Check your answers using the answer key at the end of the chapter
...
Reread the second question of the exercises in
...

2
...
Superior Court, 208 Cal
...
3d 783 (1989)
...

The pit bull had never bitten anyone before this incident
...
courtroomview
...

3
...
State, 776 So
...
Why did the Mississippi Court of Appeals
hold that this killing was a depraved heart murder? The case is available at this
link: http://www
...
state
...
us/images/Opinions/Conv9328
...


[1] Mich
...
Laws § 750
...
legislature
...
gov/(S(gjc5ys55et3ukfj0uq5uehqm))/mileg
...

[2] K
...
A
...
lesterama
...
html
...
R
...
§ 200
...
onecle
...
030
...

[4] N
...
S
...
080, accessed February 13, 2011,http://law
...
com/nevada/crimes/200
...
html
...
6 Manslaughter
LEARNING OBJECTIVES
1
...


2
...

3
...

Saylor URL: http://www
...
org/books

Saylor
...
Explain the concurrence of a voluntary manslaughter killing and the heat of passion
...
Compare voluntary and involuntary manslaughter
...
Describe the three types of involuntary manslaughter
...
Analyze manslaughter grading
...
Manslaughter is an unlawful
killing without malice or murder intent
...
Thus criminal intent is the only manslaughter offense element that is discussed
in this section
...
Voluntary manslaughter has
the same criminal intent element as murder
...
However, in a voluntary manslaughter,
an emotional state called aheat of passion negates the murder intent
...


[2]

The Model Penal Code does not require adequate provocation

from the victim per se, but it does have a similar provision that reduces murder to manslaughter when
there is a reasonable explanation or excuse (Model Penal Code § 210
...

The adequacy requirement is essential to any voluntary manslaughter analysis
...
Nonetheless, most provocations are not adequate to
drop the crime from murder to manslaughter
...
A reasonable person is a fictional and objective standard created by the
trier of fact
...


[4]

Example of Inadequate Provocation
Revisit the situation discussed in , in which Dillon kills his supervisor Frank with a brass paperweight
after Frank fires him
...
However, getting fired
would not provoke a reasonable person into a killing frenzy
...
Therefore, in this example, Dillon’s crime is most likely murder,
not voluntary manslaughter
...
saylor
...
org
372

Example of Adequate Provocation
A traditional example of provocation that is adequate to reduce a crime from murder to manslaughter is
an observation by one spouse of another spouse in the act of adultery
...
He becomes so enraged that he storms
over to the dresser, grabs his handgun, and shoots and kills her
...

However, the victim provoked this intent with an act that could cause a reasonable person to kill
...


Other Examples of Adequate Provocation
Other examples of adequate provocation are when the homicide victim batters the defendant and a killing
that occurs during a mutual combat
...


[7]

[6]

Cases have generally held that words alone are not enough to

Thus in the adequate provocation example in , if a friend told José that

his wife was committing adultery, and José responded by shooting and killing his wife, this would
probably be murder, not voluntary manslaughter
...

Defendants generally exhibit rage, shock, or fright when experiencing a heat of passion
...
However, heat of
passion mental states are typically brief in duration
...


[8]

Analyze the adequate provocation example

discussed in
...


Figure 9
...
saylor
...
org
373

Involuntary Manslaughter
Involuntary manslaughter is an unlawful killing that completely lacks murder intent
...

Involuntary manslaughter generally can be classified
as misdemeanor manslaughter,reckless or negligent involuntary manslaughter, or vehicular manslaughter
...
The Model Penal Code
completely rejects misdemeanor manslaughter
...
Most states that prohibit misdemeanor manslaughter only
include misdemeanors that are inherently dangerous to life in the criminal statute, excluding strict
liability misdemeanors or malum prohibitum crimes
...


[10]

In

either jurisdiction, the defendant need only possess the criminal intent for the misdemeanor to be guilty
of the killing
...
saylor
...
org
374

Example of Misdemeanor Manslaughter
Roberta points an unloaded gun at Jennifer to scare her into breaking up with Roberta’s ex-boyfriend
...
At the sight of the
gun, Jennifer suffers a heart attack and dies
...
Brandishing a weapon is not always inherently dangerous to life
...


Reckless or Negligent Involuntary Manslaughter
States and the federal government also criminalize reckless or negligent involuntary
manslaughter
...
The Model Penal Code defines reckless homicide
as manslaughter and a felony of the second degree (Model Penal Code § 210
...
The Model Penal Code
defines negligent homicide as a felony of the third degree (Model Penal Code § 210
...

Reckless involuntary manslaughter is a killing supported by the criminal intent element of recklessness
...
Negligent involuntary
manslaughter is a killing supported by the criminal intent element of negligence
...
This category includes many careless or
accidental deaths, such as death caused by firearms or explosives, and a parent’s failure to provide
medical treatment or necessities for his or her child
...

As stated in , reckless or negligent involuntary manslaughter is often similar to second-degree depraved
heart murder
...


Example of Reckless or Negligent Involuntary Manslaughter
Steven, an off-duty sheriff’s deputy, brings his shotgun into the local rifle shop to be repaired
...
Unfortunately, the
gun is loaded and discharges, shooting and killing the employee
...
However, Steven is unaware of the risk and believes

Saylor URL: http://www
...
org/books

Saylor
...
If the employee dies, Steven could be convicted of negligent involuntary
manslaughter in jurisdictions that recognize this crime
...


Vehicular Manslaughter
Vehicular manslaughter is typically either the operation of a motor vehicle
withrecklessness or negligence resulting in death or the operation of a motor vehicleunder the
influence of alcohol or drugs resulting in death
...


[13]

[12]

Some states have specific vehicular manslaughter

In states that do not, the defendant could be prosecuted under a jurisdiction’s misdemeanor

or unlawful act manslaughter statute if the defendant violates a vehicle code section
...
If the defendant uses a motor vehicle as a weapon
to kill the victim, the intent to kill is present and the appropriate crime would be murder
...
8 Diagram of Involuntary Manslaughter

Saylor URL: http://www
...
org/books

Saylor
...


[14]

Often manslaughter functions as an imperfect defense to murder, based on the less

serious sentencing options
...


[15]

Some states divide manslaughter into degrees, rather than classifying it as voluntary and

involuntary, with first-degree manslaughter punished more severely than second-degree manslaughter
...
3(2)) and grades
negligent homicide as a felony of the third degree (Model Penal Code § 210
...

Figure 9
...
saylor
...
org
377

KEY TAKEAWAYS


Murder is a killing supported by the criminal intent of malice or purposely, knowingly, or
recklessly under circumstances manifesting extreme indifference to life
...




Voluntary manslaughter is a killing that occurs during an adequately provoked heat of
passion
...




A killing must occur during a heat of passion to be classified as voluntary manslaughter
...




Voluntary manslaughter is supported by murder intent that has been negated in an
adequately provoked heat of passion
...




The three types of involuntary manslaughter are misdemeanor manslaughter, reckless or
negligent involuntary manslaughter, and vehicular manslaughter
...
Voluntary manslaughter is typically
graded higher than involuntary manslaughter
...


Saylor URL: http://www
...
org/books

Saylor
...
Check your answers using the answer key at the end of the chapter
...
How does the Model Penal Code classify criminal homicides?
2
...
State, 691 N
...
2d 412 (1997)
...
google
...
+state+691+ne2d+412&hl=en&as_sdt=2002&as_vis=1
...
Read Tripp v
...
2d 384 (1977)
...
Did the Maryland Court of Appeals hold
that the victim must be the source of adequate provocation in a voluntary manslaughter
case? The case is available at this
link:http://scholar
...
com/scholar_case?case=17743318345966072534&hl=en&as_
sdt=2002&as_vis=1
...
Read Walker v
...
3d 112 (1988)
...
google
...


LAW AND ETHICS
Should Killing an Abortion Doctor Be Voluntary Manslaughter?
Scott Roeder left his pew during a church service, walked up to a well-known abortion doctor, and
deliberately shot him in the head, killing him
...
The defense claimed that
defendant Roeder was acting in defense of others in the attempt to save the lives of unborn children
...
What are some of the consequences of allowing the charge of voluntary manslaughter in
this situation?
Check your answer using the answer key at the end of the chapter
...
saylor
...
org
379

[1] N
...
S
...
040, accessed February 13, 2011,http://law
...
com/nevada/crimes/200
...
html
...
Code Ann
...
lexisnexis
...

[3] People v
...
2d 225 (2002), accessed February 13,
2011,http://scholar
...
com/scholar_case?case=18208208560981664037&q=
voluntary+manslaughter+reasonable+person+adequate+provocation&hl=en&as_sdt=2,5
...
Steele, 47 P
...
google
...

[5] Ohio v
...
3d 630 (1992), accessed February 24,
2011,http://scholar
...
com/scholar_case?case=8752055493993855988&q=
voluntary+manslaughter+spouse+act+of+adultery&hl=en&as_sdt=2,5
...
Shane, 63 Ohio St
...
google
...

[7] Girouard v
...
2d 718 (1991), accessed February 24,
2011,http://www
...
com/acf_cases/8711-girouard-v-state
...
Cole, 338 S
...
97 (2000), accessed March 1,
2010,http://www
...
state
...
us/opinions/htmlfiles/SC/25037
...

[9] K
...
A
...
lesterama
...
html
...
S
...
oscn
...
asp?CiteID=69314
...
Code § 13A-6-3(a) (1), accessed February 13, 2011,http://law
...
com/alabama/criminal-code/13A-63
...

[12] N
...
Penal Law § 125
...
buffalo
...
htm
...
Penal Code § 191
...
onecle
...
5
...

[14] N
...
S
...
080, accessed February 13, 2011,http://law
...
com/nevada/crimes/200
...
html
...
R
...
§ 200
...
onecle
...
090
...


Saylor URL: http://www
...
org/books

Saylor
...
Y
...
20, accessed February 24, 2011,http://ypdcrime
...
law/article125
...
20
...
usatoday
...
htm
...
7 End-of-Chapter Material
Summary
Homicide is the killing of one human being by another
...
Some states and the federal government also criminalize the killing of a fetus
...

Many jurisdictions follow the common law and define murder as the killing of a victim with malice
aforethought
...
The Model Penal Code defines murder
intent as purposely, knowingly, or recklessly under circumstances indicating extreme indifference to life
...

Most jurisdictions divide murder into degrees of seriousness
...
Premeditated murder is typically a killing supported by
specific intent to kill combined with cool reflection and planning
...
Felony murder is a homicide that occurs during the commission or
attempted commission of a felony
...
Felony murder can be graded as first, second, or third degree,
depending on the felony
...

Second-degree murder is often defined as any murder that is not first degree
...
Second-degree
murder is usually graded lower than first-degree murder but higher than manslaughter
...
Most jurisdictions
divide manslaughter into voluntary and involuntary
...
Voluntary manslaughter is a killing that occurs during a heat of passion
inspired by adequate provocation from the victim, negating murder intent
...
saylor
...
org
381

be a killing that occurs during the commission or attempted commission of a misdemeanor or a reckless
or negligent killing, depending on the jurisdiction
...
The Model Penal Code classifies negligent killings as negligent homicide and
a felony of the third degree
...
Review the case
and see how the judges or justices actually ruled
...


1
...
The defendant did
not know she was pregnant, nor was it obvious from her appearance
...
Would you affirm or reverse? People v
...
3d 881 (2004)
...
lp
...
com/data2/californiastatecases/s112443
...

2
...
The wife died of a bullet wound and one of the children
died of dehydration
...
” The defendant appealed because
there was no evidence of specific intent to kill the child
...
Evangelista, 353 S
...
2d 375 (1987)
...
google
...

3
...

The underlying felony was cruelty to an elderly person
...
Thereafter, they neglected to care for her and she died from this
neglect
...

Saylor URL: http://www
...
org/books

Saylor
...
Would you affirm or reverse? Wood v
...
E
...
The case is available at this
link:http://www
...
com/lx1/caselaw/freecaselaw?action=OCLGetCaseDetail&form
at=FULL&sourceID=bdjgjj&searchTerm=
eIgi
...
aadj
...

4
...
When an oil
truck pulled into her driveway, she smirked at the defendant because she knew the
confrontation was over
...
The court held that the defendant was not entitled
to a jury instruction on voluntary manslaughter
...

Warmke, 879 A
...
The case is available at this
link: http://scholar
...
com/scholar_case?case=7047276887490940793&q=State+v
...
2d+30+%282005%29
...


Cases of Interest


United States v
...
2d 791 (1985), discusses premeditation in a short period
of time: http://www
...
com/doc/10079243/United-States-v-Watson
...
Prunty, 59 F
...
org/59/f3d/1005
...
Wilbur, 421 U
...
684 (1975), discusses the burden of proof for voluntary
manslaughter: http://supreme
...
com/us/421/684/case
...


Articles of Interest


Assisted suicide: http://phoenixcriminallawnews
...
html



Utah bill that criminalizes miscarriage:http://www
...
com/2010/03/04/coulda-reckless -miscarriage-be-murder-utah-bill-might-make-i



Prosecution of Michael Jackson’s doctor for involuntary
manslaughter,http://www
...
com/stories/2011/01/25/eveningnews/main72829
05
...
saylor
...
org
383



HIV as a deadly weapon: http://www
...
com/blog/2010/03/30/is-hiv-adeadly-weapon

Websites of Interest


Fetal homicide statutes: http://www
...
org/default
...
assistedsuicide
...
statehealthfacts
...
jsp?ind=569&cat=11

Statistics of Interest


Crime, including
homicide:http://www
...
gov/compendia/statab/cats/law_enforcement_courts
_prisons/crimes_and_crime_rates
...
The fundamental difference between homicide and suicide is the identity of thevictim
...
In a suicide, the victim is the
perpetrator, which is one of the reasons that homicide is often criminal and suicide is
not
...
The US Supreme Court held that the right to assist a suicide is not a fundamental liberty
interest protected by the due process clause in the Fourteenth Amendment
...
Jay has the criminal intent of depraved heart
...
This indifference is a form of implied malice, knowingly, or
recklessly manifesting extreme indifference to the value of human life
...
Yes, this is true
...


Saylor URL: http://www
...
org/books

Saylor
...
The US Court of Appeals for the Eighth Circuit held that teeth can constitute a deadly
weapon in any case, whether or not the defendant has contracted the HIV virus
...


Answers to Exercises
From

1
...
The facts indicate a willful, deliberate, premeditated killing
...
He indicates planning by
putting his gun in the glove compartment of his car and driving to the gas station on
Friday night where he suspects Marcus will be present
...
In addition, first-degree murder by a specified
means frequently includes drive-by shooting as a method of killing
...
The Tennessee Supreme Court held that the defendant’s failure to make a timely police report and
concealment of the murder weapon did not prove that the murder was premeditated
...


[1]

3
...
The defendant and victim had a relationship fraught
with abuse, most of it based on the defendant’s desire to control the victim
...
Preconceived design is shown by the following actions:
The defendant shot the victim several times with the shotgun he brought to his son’s

Saylor URL: http://www
...
org/books

Saylor
...
He paused to reload and also to retrieve a handgun from the snow in between
shots
...
The Minnesota Supreme Court reversed the court of appeal and held that felon in
possession of a firearm and possession of a stolen firearm are not feloniesinherently
dangerous to life, so they cannot be predicate felonies for a felony murder conviction
...
While the use of a
firearm can pose significant danger to human life, simple possession—standing alone—
does not
...
Kurt did not commit felony murder in this case because he had reached a place
of temporary safety, so the felony had ended
...
The US Supreme Court based its holding on the Eighth and Fourteenthamendments
...


Answers to Exercises
From

1
...
This is not a first-degree felony murder (based on the felony of
robbery) because the felony had ended when the killing occurred
...

2
...

3
...


Answers to Exercises
Saylor URL: http://www
...
org/books

Saylor
...
The Model Penal Code classifies criminal homicides as felonies of the first, second, and
third degree, depending on the defendant’s intent
...
Manslaughter is
supported by reckless intent, or is a murder that is committed under the influence of
extreme mental or emotional disturbance for which there is a reasonable explanation or
excuse, and is a felony of the second degree
...

2
...
In
this case, a ten-year-old boy threatened to expose sexual molestation by the defendant,
who was twenty years old
...

3
...
Thus the defendant could not claim
voluntary manslaughter when he killed his ex-girlfriend’s family members because he
was provoked only by her
...
The defendant was charged with involuntary manslaughter because she treated her
daughter’s meningitis with prayer, rather than obtaining medical care
...


Answer to Law and Ethics Question
1
...
Extending the defense in this manner opens the door to a voluntary
manslaughter charge for a defendant who (1) kills an individual authorized to execute
prisoners pursuant to the death penalty or (2) is a soldier who is going off to war
...
saylor
...
org
387

imminence
...
No
imminent threat was present when the abortion doctor was in church
...
Thus the
judge presiding over Roeder’s trial allowed the defense arguments but thereafter
precluded the voluntary manslaughter charge
...


The California Supreme Court reversed, holding that implied malice does not mean
that the defendant needs to be aware of the risk to a specific victim
...
The Supreme Court of North Carolina affirmed because there is no need to prove
specific intent to kill when a murder is by a specified means
...
The Supreme Court of Georgia affirmed because the defendant voluntarily and
knowingly took the victim into his home and agreed to care for her, creating the duty to
act
...
The Supreme Court of Maine affirmed because the defendant initiated the
confrontation
...
West, 844 S
...
2d 144, 147 (1992), accessed July 30,
2010,http://scholar
...
com/scholar_case?case=3481778471457660977&hl=en&as_sdt=2002&as_vis=1
...
Anderson, 666 N
...
2d 696, 700 (2003), accessed July 30,
2010,http://www
...
com/lx1/caselaw/freecaselaw?action=OCLGetCaseDetail&format=
FULL&sourceID=bdjhdg&searchTerm=ejhU
...
aadj
...

[3] “Man Testifies he Killed Kansas Abortion Doctor,” USA Today, accessed July 27,
2010,http://www
...
com/news/nation/2010-01-28-tiller-murder-trial_N
...


Saylor URL: http://www
...
org/books

Saylor
...


State v
...
4 "Kidnapping and False Imprisonment"

10
...


Compare common-law rape and sodomy offenses with modern rape and sodomy
offenses
...
Define the criminal act element required for rape
...
Define the attendant circumstance element required for rape
...
Ascertain the amount of resistance a victim must demonstrate to evidence lack of
consent
...
Ascertain whether the victim’s testimony must be corroborated to convict a defendant
for rape
...
Define the criminal intent element required for rape
...
Analyze the relationship between the criminal intent element required for rape and the
mistake of fact defense allowed for rape in some jurisdictions
...
Define the harm element required for rape
...
Identify the primary components of rape shield laws
...
Identify the most prevalent issues in acquaintance rape
...
Compare spousal rape with rape
...
Identify the elements of statutory rape, and compare statutory rape with rape
...
Compare sodomy, oral copulation, and incest with rape
...
Analyze sex offenses grading
...
Identify the primary components of sex offender registration statutes
...
saylor
...
org
389

In this section, you learn the elements of rape and related sex offenses and examine defenses based on consent
...


Synopsis of the History of Rape and Sodomy
The word rape has its roots in the Latin word rapere, which means to steal or seize
...
The elements of rape were forcible sexual intercourse, by a man, with a
woman not the spouse of the perpetrator, conducted without consent, or with consent obtained by force
or threat of force
...
The common law
also recognized the crime of sodomy
...

Sodomy was condemned and criminalized even with consentbecause of religious beliefs deeming it a
crime against nature
...
The most prominent changes were eliminating the marital rape
exemption and the requirement of evidence to corroborate the rape victim’s testimony, creating rape
shield laws to protect the victim, and relaxing the necessity for the defendant’s use of force or resistance
by the victim
...
Although some states still have statutes that provide the death penalty for rape, the US Supreme
Court has held that rape, even child rape, cannot be considered a capital offense without violating the
Eighth Amendment cruel and unusual punishment clause, rendering these statutes unenforceable
...
The US Supreme Court has definitively held
that consensual sex between adults may be protected by a right of privacy and cannot be criminalized
without a sufficient government interest
...
1 Comparing Common Law Rape and Sodomy with Modern Statutes

Crime
Commonlaw rape

Criminal Act
Penis-vagina
penetration

Lack of Victim
Consent?
Yes

Saylor URL: http://www
...
org/books

Victim Resistance?
Yes, extreme resistance

Other Differences
Corroborative evidence
required; no spousal rape;

Saylor
...
1
...
2
...
)

Commonlaw
sodomy

Male penismale anus
penetration

No
...


No
...


Modern
sodomy

Gender-neutral
penis-anus
penetration

Consensual sodomy in
prison or jail is still
criminal in some
jurisdictions
...
1
...
)

Same as modern rape,
above

Yes

No corroborative evidence
required; spousal rape is a
crime in some
jurisdictions; rape is not a
capital crime
...
Rape also has an attendant circumstance element, which is lack of consent by the victim
...


[6]

Sexual intercourse is typically defined as penetration of a woman’s vagina by a man’s

penis and can also be referred to as vaginal intercourse
...


[8]

The Model Penal Code

defines the criminal act element required for rape as sexual intercourse that includes “intercourse per os
or per anum,” meaning oral and anal intercourse (Model Penal Code § 213
...
In most jurisdictions, a
man or a woman can commit rape
...


[10]

The Model Penal Code includes force, threat of force, and

situations where the defendant has impaired the victim’s power to control conduct by administering
intoxicants or drugs without the victim’s knowledge or sexual intercourse with an unconscious female or a
female who is fewer than ten years old (Model Penal Code § 213
...
Other statutes may
Saylor URL: http://www
...
org/books

Saylor
...


[11]

Example of Rape Act
Alex and Brad play video games while Brad’s sister Brandy watches
...
While Brad is gone, Alex turns to Brandy, pulls a knife out of his pocket,
and tells her to take off her pants and lie down
...
Alex has probably committed the criminal act
element required for rape in most jurisdictions
...
If the situation is reversed, and
Brandy pulls out the knife and orders Alex to put his penis in her vagina, many jurisdictions would also
criminalize Brandy’s criminal act as rape
...


Rape Attendant Circumstance
In many jurisdictions, the attendant circumstance element required for rape is the victim’s lack of
consent to the defendant’s act
...


Proving Lack of Consent as an Attendant Circumstance
Proving lack of consent has two components
...
If
the victim is under the age of consent or is mentally or intellectually impaired because of a permanent
condition, intoxication, or drugs, the prosecution does not have to prove lack of consent in many
jurisdictions
...

The second component to proving lack of consent is separating true consent from consent
rendered involuntarily
...
First, if the victim consents to
the defendant’s act because of fraud or trickery—for example, when the victim is unaware of the nature of
the act of sexual intercourse—the consent is involuntary
...


[14]

This is

calledfraud in the factum
...
saylor
...
org
392

the circumstances accompanying the sexual conduct, does not render the consent involuntary in many
jurisdictions
...


[15]

A more common example of involuntary consent is when the victim consents to the defendant’s act
because of force or threat of force
...

Figure 10
...
In modern times,
the victim does not have to fight back or otherwise endanger his or her life if it would be futile to do so
...


[16]

The use of force by the defendant could eliminate any requirement of victim resistance to prove lack of consent
...


[18]

Threat of force can be accomplished by words, weapons, or gestures
...
saylor
...
org
393

also be present when there is a discrepancy in size or age between the defendant and the victim or if the sexual
encounter takes place in an isolated location
...
1(2)(a))
...

If the victim does not physically resist the criminal act, the prosecution must prove that the victim affirmatively
indicated lack of consent in some other manner
...
In the most extreme case, at least one court has held that a verbal “No” during the

act of sexual intercourse is sufficient, and the defendant who continues with sexual intercourse after being told “No”
is committing the criminal act of rape
...
2 Proving Lack of Consent

Saylor URL: http://www
...
org/books

Saylor
...
The victim’s testimony had to be supported by
additional corroborative evidence
...


[20]

However, statistics indicate that rape prosecutions often result in acquittal
...

Saylor URL: http://www
...
org/books

Saylor
...
In this example, after an
initial protest, Brandy lies down, takes off her pants, and allows Alex to put his penis in her vagina when
he pulls out a knife
...

Although Brandy acquiesced to Alex’s demands without resisting, she did so after Alex took a knife out of
his pocket, which is a threat of force
...
A trier of fact could determine that Brandy experienced a fear of serious
bodily injury from Alex’s display of the knife, and that a reasonable person under similar circumstances
would give in to Alex’s demands without physical resistance
...
Brandy responds, “No,” but allows Alex to remove her pants and put his penis in her vagina without
physically resisting
...
If Brandy testifies that she said “No”
and did not consent to Alex’s act, and Alex testifies that Brandy’s verbal response was insufficient to
indicate lack of consent, the trier of fact must resolve this issue of fact, and it can do so based on Brandy’s
testimony, uncorroborated, in many jurisdictions
...


Rape Intent
The criminal intent element required for rape in most jurisdictions is the general
intent or knowingly to perform the rape criminal act
...

As Chapter 4 "The Elements of a Crime" stated, occasionally, a different criminal intent supports the other
elements of an offense
...
This creates a viable mistake of fact defense if the defendant has an incorrect
perception as to the victim’s consent
...


Saylor URL: http://www
...
org/books

[22]

Many

Saylor
...


[23]

Example of Rape Intent
Review the example with Alex and Brandy in Section 10 "Example of Rape Act"
...
Brandy
does not respond
...
Brandy does not protest or physically
resist
...
” Brandy remains silent
...
In states that allow a negligent intent to support the attendant
circumstance of rape, Alex may be able to successfully assert mistake of fact as a defense
...
In most jurisdictions, the jury could be instructed on an inference of this intent from Alex’s
behavior under the circumstances
...
If Alex is in a
jurisdiction that requires strict liabilityintent to support the attendant circumstance element, Alex
cannot raise the defense because Alex’s belief as to Brandy’s consent would be irrelevant
...


Rape Harm
The harm element of rape in most jurisdictions is penetration, no matter how slight
...
In addition, modern statutes do not require male ejaculation, which precludes lack
of semen as a defense
...
Assume that Brad walks
into the room while Alex and Brandy are engaging in sexual intercourse
...
Alex may be charged with rape, not attempted rape, in most jurisdictions
...


Saylor URL: http://www
...
org/books

Saylor
...
Before the comprehensive rape reforms of the 1970s, rape defendants would proffer
any evidence they could find to indicate that the victim was sexually promiscuous and prone to consenting
to sexual intercourse
...
This allowed serial rapists to escape punishment and did not serve our criminal justice
goal of deterrence
...
Rape shield laws prohibit the
admission of evidence of the victim’s past sexual conduct to prove consent in a rape trial, unless the judge
allows it in a pretrial in camera hearing, outside the presence of the jury
...


[26]

Most courts permit the admission of evidence proving the victim’s previous consensual

sex with the defendant because this evidence is particularly relevant to any consent defense
...
Assume that the
jurisdiction in which the example takes place has a rape shield law
...


LAW AND ETHICS
Should the Media Be Permitted to Publish Negative Information about a Rape Victim?
In 2003, Kobe Bryant, a professional basketball player, was indicted for sexually assaulting a nineteenyear-old hotel desk clerk
...


[28]

The court removed the victim’s name after discovery of the mistake, but the damage was

done
...


[29]

Products like underwear, t-shirts, and coffee mugs with pictures of the

Saylor URL: http://www
...
org/books

Saylor
...


[30]

Although the Colorado Supreme Court ordered pretrial in camera

transcripts of hearings pursuant to Colorado’s rape shield law to remain confidential, an order that was
confirmed by the US Supreme Court,

[31]

the accuser was subjected to so much negative publicity that she

eventually refused to cooperate and the prosecution dropped the charges in 2004
...
Do you think rape shield laws should include prohibitions against negative publicity?
What are the constitutional ramifications of this particular type of statutory protection?
Check your answer using the answer key at the end of the chapter
...
Acquaintance rape, also called date rape, is a phenomenon
that could increase a victim’s reluctance to report the crime and could also affect the defendant’s need to
use force and the victim’s propensity to physically resist
...
To adequately punish and deter acquaintance or date rape, rape statutes should
punish nonforcible, nonconsensual sexual conduct as severely as forcible rape
...


Some rape statutes have also eliminated the requirement that the defendant use force and

punish any sexual intercourse without consent as rape
...
The policy supporting this
exemption can be traced to a famous seventeenth-century jurist, Matthew Hale, who wrote, “[T]he
husband cannot be guilty of a rape committed by himself upon his lawful wife, for by their mutual
matrimonial consent and contract the wife hath given up herself in this kind unto her husband, which she
cannot retract” (Hale, History of Pleas of the Crown, p
...
During the rape reforms of the 1970s, many
states eliminated the marital or spousal rape exemption, in spite of the fact that the Model Penal Code
does not recognize spousal rape
...
saylor
...
org
399

men without a sufficient government interest
...

serious felony
...


Statutory Rape
Statutory rape, also called unlawful sexual intercourse, criminalizes sexual intercourse with a victim
who is under the age of legal consent
...


[39]

The criminal act element required for statutory rape in many jurisdictions is sexual intercourse,
although other types of sexual conduct with a victim below the age of consent are also
criminal
...

[42]

an underage victim
...
Nor is there an attendant

circumstance element of lack of consent because the victim is incapable of legally consenting
...


[43]

However, a

minority of states require reckless or negligent criminal intent, allowing for the defense of mistake of
fact as to the victim’s age
...


[44]

The

mistake of age defense can be proven by evidence of a falsified identification, witness testimony that the
victim lied about his or her age to the defendant, or even the appearance of the victim
...
The historical reason for this
selective prosecution is the policy of preventing teenage pregnancy
...


[46]

[45]

However, modern statutory rape

This ensures that women, especially women who are older than their

sexual partner, are equally subject to prosecution
...
Gary and
Michelle end up spending the evening together, and later they go to Gary’s apartment where they have
consensual sexual intercourse
...
If Gary and Michelle are in a state that requires strict liability for the criminal

Saylor URL: http://www
...
org/books

Saylor
...
If Gary and Michelle are in a state that allows for mistake of
age as a defense, Gary could use Michelle’s presence in the nightclub as evidence that he
acted reasonably in believing that Michelle was capable of rendering legal consent
...


Figure 10
...
saylor
...
org
401

Sodomy and Oral Copulation
As stated previously, some states include rape, sodomy, and oral copulation in a sexual assault or sexual
conduct statute that criminalizes a variety of sexual acts involving penetration
...


[48]

Typically, the other sodomy elements, including the lack of consent

attendant circumstance, criminal intent, causation, and harm, are the same as the elements of rape
...
Grading is discussed shortly
...


[49]

As stated previously, the US Supreme Court has held that statutes criminalizing sodomy

between consenting adults unreasonably encroach on a right to privacy without a sufficient government
interest
...


[51]

In states that distinguish between rape, sodomy, and oral copulation, the criminal act element of oral
copulation is forcible mouth to sexual organ or anus penetration
...
Many jurisdictions also grade oral copulation the same as rape
...

A few states still criminalize oral copulation with consent
...


Incest
Incest is also criminal in many jurisdictions
...


[54]

The attendant circumstance element required for incest is a victim the

defendant cannot legally marry because of a family relationship
...


[56]

Thus consent by the victim cannot operate as a defense
...
The
[57]

criminal intent element required for incest is typically general intent or knowingly
...
saylor
...
org
402

rape
...


[59]

Example of Incest
Hal and Harriet, brother and sister, have consensual sexual intercourse
...
In spite of the fact that there was no force, threat of force, or fraud, and both
parties consented to the sexual act, Hal and Harriet could be charged with and convicted of incest in
many jurisdictions, based on theirfamily relationship
...
In general, forcible sex crimes involving
penetration are graded as serious felonies
...


[61]

The Model Penal Code grades rape as a felony of the second degree unless

the actor inflicts serious bodily injury on the victim or another, or the defendant is a stranger to the
victim, in which case the grading is elevated to a felony of the first degree (Model Penal Code § 213
...

Sexual offenses that do not include penetration are graded lower,
consensual
...


[64]

Figure 10
...
saylor
...
org
403

Saylor URL: http://www
...
org/books

Saylor
...
Both laws were written and enacted after high-profile cases with child
victims became the subject of enormous media attention
...

Typically, a Megan’s law statute provides for registration and notification to the public that a convicted sex offender
lives in their area
...
Jessica’s law
statutes also provide for GPS monitoring and extend the sentencing and parole terms of child sex offenders
...
5 Diagram of Megan’s and Jessica’s Law Statutes

KEY TAKEAWAYS


Common-law rape was a capital offense, did not include rape of a spouse, required
extreme resistance by the victim, and required evidence to corroborate a victim’s

Saylor URL: http://www
...
org/books

Saylor
...
Modern statutes do not make rape a capital offense, often criminalize
spousal rape, and do not require extreme resistance by the victim or evidence to
corroborate the victim’s testimony
...
Modern statutes make sodomy gender-neutral and only
criminalize sodomy without consent
...




The attendant circumstance element required for rape is lack of consent by the victim
...
If
the victim is faced with a threat of force rather than force, the victim need not resist if
he or she has a subjective fear of serious bodily injury, and this fear is reasonable under
the circumstances
...




The criminal intent element required for rape is general intent or knowingly to commit
the criminal act
...
In other jurisdictions, the criminal intent element required for the rape
attendant circumstance is strict liability, which does not allow for the mistake of fact
defense
...
Ejaculation is
not a requirement for rape in most jurisdictions
...
Rape
shield laws also preclude the admission of evidence of the victim’s style of dress and the
victim’s request that the defendant wear a condom to prove victim consent
...


Saylor URL: http://www
...
org/books

Saylor
...




States that criminalize spousal rape generally require the same elements for spousal
rape as for rape and grade spousal rape the same as rape
...
Statutory rape does not have the requirement that the intercourse be forcible
and does not require the attendant circumstance of the victim’s lack of consent because
the victim is incapable of rendering legal consent
...
In a minority of
jurisdictions, the criminal intent element required for statutory rape is negligent or
reckless intent, providing for a defense of mistake of fact as to the victim’s age
...
In addition, in some states sodomy is criminal with consent when it occurs
in a state prison or a local detention facility or jail
...
Incest is sexual intercourse between family members who
cannot legally marry
...
Factors that
enhance grading of sex offenses are penetration, gang rape, bodily injury, the use of a
weapon, a victim who has intellectual or mental disabilities or is youthful or intoxicated,
and the commission of other crimes in concert with the sex offense
...

If the victim is below the age of consent, a large age difference exists between the
defendant and the victim, the defendant is an adult, or the victim is of tender years,
grading typically is enhanced
...
A Jessica’s law statute often
includes a stay-away order mandating that a sex offender cannot live within a certain

Saylor URL: http://www
...
org/books

Saylor
...
Jessica’s
law statutes also provide for GPS monitoring and extend the sentencing and parole
terms of child sex offenders
...
Check your answers using the answer key at the end of the chapter
...
Jorge and Christina have consensual sexual intercourse
...
Read Toomer v
...
In Toomer, the defendant was convicted of
rape after having sexual intercourse with his daughter, who was under the age of
fourteen
...
The defendant appealed and claimed that the prosecution
should have proven he used force and the victim’s resistance because the charge
was rape, not statutory rape
...
google
...
+State&hl=en&as_sdt=2,5
...
Read Fleming v
...
In Fleming, the defendant appealed his
conviction for aggravated sexual assault of a child under fourteen because he was not
allowed to present a mistake of age defense
...
Did the Court of Appeals of Texas agree with the defendant? The case is
available at this
link:http://scholar
...
com/scholar_case?case=12908572719333538188&q=
%22Scott+v
...

Next
[1] Donna Macnamara, “History of Sexual Violence,” Interactive theatre
...
interactivetheatre
...
html
...
com website, accessed February 8, 2011,http://lawbrain
...


Saylor URL: http://www
...
org/books

Saylor
...
Lyon, “No means No? Withdrawal of Consent During Intercourse and the Continuing Evolution of
the Definition of Rape,” Findarticles
...
com/p/articles/mi_hb6700/is_1_95/ai_n29148498/pg_3/?tag=content;col1
...
Louisiana, 128 S
...
2641 (2008), accessed February 8, 2011,http://www
...
org/cases/20002009/2007/2007_07_343
...
Texas, 539 U
...
558 (2003), accessed February 8, 2011,http://www
...
org/cases/20002009/2002/2002_02_102
...
Code Ann
...
justia
...
html
...
Code Ann
...
justia
...
html
...
S
...
§ 21-3501(1), accessed February 8,
2011,http://law
...
com/kansas/codes/2006/chapter21/statute_11553
...

[9] K
...
A
...
justia
...
html
...
S
...
§ 21-3502, accessed February 8,
2011,http://law
...
com/kansas/codes/2006/chapter21/statute_11554
...

[11] N
...
Penal Law § 130
...
onecle
...
25_130
...
html
...
Code Ann
...
justia
...
html
...
S
...
§ 21-3502, accessed February 8,
2011,http://law
...
com/kansas/codes/2006/chapter21/statute_11554
...

[14] Iowa v
...
W
...
google
...

[15] Boro v
...
App
...
google
...
+Superior+Court&hl=en&as_sdt=2,5
...
saylor
...
org
409

[16] Del
...
tit
...
delaware
...
shtml#761
...
Y
...
05, accessed February 9, 2011, http://law
...
com/newyork/penal/PEN0130
...
05
...

[18] Minn
...
Ann
...
343(c), accessed February 10, 2011,https://www
...
mn
...
343
...
, 29 Cal
...
stanford
...

[20] State v
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2d 1261 (1994), accessed February 10,
2011,http://www1
...
umkc
...
htm
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Lile, 699 P
...
google
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[22] People v
...
2d 1337 (1975), accessed February 11,
2011,http://scholar
...
com/scholar_case?case=6471351898025391619&hl=en&as_sdt=2&as_vis=1&oi=schol
arr
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Plunkett, 934 P
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google
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[24] Idaho Code Ann
...
legislature
...
gov/idstat/Title18/T18CH61SECT18-6101
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[25] Ala
...
justia
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html
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Stat
...
§ 794
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justia
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Rev
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Ann
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michie
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[28] “Rape Case against Bryant Dismissed,” MSNBC
...
msnbc
...


Saylor URL: http://www
...
org/books

Saylor
...
com website, accessed
February 27, 2011, http://www
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com/sports/basketball/nba/2004-09-01-kobe-bryant-case_x
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[30] Richard Haddad, “Shield or Sieve? People v
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columbia
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pdf
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al
...
District Court for the Fifth Judicial District of Colorado, 542 U
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1301 (2004),
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...
04
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html
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[33] The National Center for Victims of Crime, “Acquaintance Rape,” Ncvc
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ncvc
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T
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, 609 A
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4lawnotes
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php?t=1886
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§ 76-5-402(1), accessed February 14,
2011,http://le
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...

[36] People v
...
Y
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google
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[37] N
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Rev
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Ann
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gencourt
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§ 76-5-402(2), accessed February 14,
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[39] Age of Consent Chart for the U
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ageofconsent
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[40] US Department of Health and Human Services, “Statutory Rape: A Guide to State Laws and Reporting
Requirements,” ASPE
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gov website, accessed February 16,
2011,http://aspe
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Saylor URL: http://www
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Saylor
...
hhs
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hhs
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shtml
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onecle
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5
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[43] La
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Stat
...
§ 14-80, accessed February 15,
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[44] Alaska Stat
...
41
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[45] Michael M
...
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[47] Alaska Stat
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41
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[48] Cal
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[49] Cal
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[50] Lawrence v
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S
...
oyez
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[51] Cal
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justia
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6
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[52] Cal
...
onecle
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...
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...
us/CodeofAlabama/1975/13A-6-65
...

[54] Fla
...
Ann
...
04, accessed February 15, 2011,http://law
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Code Ann
...
11, § 766, accessed February 15,
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Saylor URL: http://www
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Saylor
...
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...
11, § 766, accessed February 15,
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...
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[57] Fla
...
Ann
...
04, accessed February 15, 2011,http://law
...
com/florida/crimes/826
...
html
...
Stat
...
§ 826
...
onecle
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04
...

[59] Del
...
Tit
...
justia
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html
...
Stat
...
§ 794
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onecle
...
023
...

[61] Del
...
Tit
...
justia
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html
...
Y
...
52, accessed February 15, 2011, http://law
...
com/newyork/penal/PEN0130
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52
...

[63] Del
...
Tit
...
justia
...
html
...
Penal Code § 261
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onecle
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5
...

[65] 42 Pa
...
S
...
1, accessed February 15, 2011, http://www
...
state
...
us
...
Code Ann
...
2-295
...
state
...
us/cgibin/legp504
...
2-295
...


10
...


Define the criminal act element required for battery
...
Define the criminal intent element required for battery
...
Define the attendant circumstance element required for battery
...
Define the harm element required for battery
...
Analyze battery grading
...
Distinguish between attempted battery and threatened battery assault
...
Define the elements of attempted battery assault
...
Define the elements of threatened battery assault
...
Analyze assault grading
...
saylor
...
org
413

Assault and battery are two crimes that are often prosecuted together, yet they are separate offenses with different
elements
...
The Model Penal Code calls both crimes assault, simple and
aggravated (Model Penal Code § 211
...
However, the Model Penal Code does not distinguish between assault and
battery for grading purposes
...


Battery Elements
Battery is a crime that has the elements of criminal act, criminal intent, attendant circumstance,
causation, and harm as is discussed in the subsections that follow
...


[1]

This criminal act element is what distinguishes assault from battery,

although an individual can be convicted of both crimes if he or she commits separate acts supported by
the appropriate intent
...
The defendant can
also touch the victim with a vehicle, knife, or a substance, such as spitting on the victim or spraying the
victim with a hose
...
Although Chris did not touch Geoff
with any part of his body, he did pour a substance that unlawfully touched Geoff’s body, which could be
sufficient to constitute the criminal act element for battery in most jurisdictions
...
At early common
law, battery was a purposeful or knowing touching
...

intent,

[3]

or negligent intent
...
The Model Penal Code requires
purposely, knowingly, or recklessly causing bodily injury to another, or negligently causing “bodily injury

Saylor URL: http://www
...
org/books

Saylor
...
1(1) (b))
...


Example of Battery Intent
Review the example with Chris and Geoff in Section 10 "Example of Battery Act"
...
Chris’s act of physically touching Geoff with the hot coffee
may be supported by negligent intent because Chris is a new employee and is probably not aware of the
risk of spilling coffee when multitasking
...
If Chris’s state only criminalizes negligent battery whenserious bodily injury occurs, or when
causing bodily injury to another with a deadly weapon, Chris will not be subject to prosecution for battery
unless the coffee caused a severe burning of Geoff’s hand; hot coffee cannot kill and would probably not
be considered a deadly weapon
...
Thus victim’s consent can operate as a failure of
proof or affirmative defense in some factual situations
...
Although Allen intentionally touched Brett,
and the result is serious bodily injury, Brettconsented to the touching by voluntarily participating in a
sporting event where physical contact is frequent
...


Justification and Excuse Defenses to Battery
In addition to consent, there are also justification and excuse defenses to battery that Chapter 5
"Criminal Defenses, Part 1" and Chapter 6 "Criminal Defenses, Part 2"discuss in detail
...
An excuse defense to battery that Chapter 6 "Criminal Defenses, Part

Saylor URL: http://www
...
org/books

Saylor
...
One other excuse defense to battery is the reasonable discipline of a
child by a parent that is generally regulated by statute and varies from state to state
...


Battery Harm
The harm requirement for battery varies, depending on the jurisdiction
...


[6]

Some jurisdictions require an actual injury to the victim
...


Example of Battery Harm
Review the example in Section 10 "Example of Battery Act" where Chris pours hot coffee on Geoff’s hand
...
If Chris
and Geoff are in a state that allows for harmful or offensive contact, Chris may be charged with or
convicted of battery as long as the battery intent element is present, as discussed in Section 10 "Battery
Intent"
...
6 Diagram of Defenses to Battery

Saylor URL: http://www
...
org/books

Saylor
...
The Model Penal Code grades battery (called simple
assault) as a misdemeanor unless “committed in a fight or scuffle entered into by mutual consent, in
which case it is a petty misdemeanor” (Model Penal Code § 211
...
The Model Penal Code
grades aggravated battery (called aggravated assault), which is battery that causes serious bodily injury
or bodily injury caused by a deadly weapon, as a felony of the second or third degree (Model Penal Code
§ 211
...
Many states follow the Model Penal Code approach by grading battery that causes offense or
emotional injury as a misdemeanor
felony
...

grading are the use of a weapon,

[11]

[14]

Other factors that can aggravate battery

the commission of battery during the commission or attempted

commission of a serious or violent felony,
teacher

[10]

or law enforcement officer
...
A certain type of assault also has a
causation and harm element, as is discussed in Section 10 "Threatened Battery Assault"
...
In some jurisdictions, assault is an attempted battery
...
The Model Penal Code criminalizes both attempted battery
and threatened battery assault (Model Penal Code § 211
...
The elements of both types of assault are
discussed in Section 10 "Attempted Battery and Threatened Battery Assault"
...

The elements of attempted battery assault are criminal act supported by criminal intent
...
Although
attempted battery assault should allow for the same defense of consent as battery, this is not as common
with assault as it is with battery, so most statutes do not have the attendant circumstance element of lack
of consent by the victim
...
saylor
...
org
417

Attempted Battery Assault Act
The criminal act element required for attempted battery assault is an act thatattempts to make physical
contact with the victim but falls short for some reason
...
In some states, the defendant must have
the present ability to cause harmful or offensive physical contact, even though the contact never takes
[16]

place
...
In the majority of jurisdictions, the criminal act element is measured
by the Model Penal Code’s substantial steps test described in detail in Chapter 7 "Parties to Crime"
...
01)
...

Fortunately for Dan, the gun malfunctions and does not fire
...
Diana took every step necessary toward completion of battery, and her conduct of
aiming a pistol at Dan and pulling the trigger was strongly corroborative of her criminal purpose
...
Thus
Diana may be charged with and convicted of the offense of attempted battery assault with a deadly
weapon
...


Attempted Battery Assault Intent
The criminal intent element required for attempted battery assault is the specific
intent or purposely to cause harmful or offensive contact
...


Example of Attempted Battery Assault Intent
Change the example in Section 10 "Example of Attempted Battery Assault Act" so that Dan hands Diana a
pistol and comments that it is unloaded
...
The gun malfunctions and does not shoot, although it
is loaded
...


Saylor URL: http://www
...
org/books

Saylor
...
Thus the criminal intent element for
attempted battery assault is absent, and Diana could only be charged with a lesser offense such as
negligent handling of firearms
...
Thus threatened battery
assault is not an attempt crime and has the additional requirement of causation and harm offense
elements
...
In general, words are not enough to
constitute the criminal act element required for threatened battery assault
...
In addition, a threat of future harm or a conditional threat is not
[20]

sufficient
...
Some jurisdictions still

require present ability for threatened battery assault
...


[21]

Example of Threatened Battery Assault Act
Change the example given in Section 10 "Example of Attempted Battery Assault Act" so that Dan’s pistol is
lying on a table
...
Diana has only used words to threaten Dan, and words are generally not enough to
constitute the threatened battery assault act
...

If Dan agrees to get back together with Diana, no physical contact would occur
...
I would rather die than take you back!” Diana thereafter
grabs the gun, points it at Dan, and cocks it
...
Diana’s threat is accompanied by a seriousgesture:
cocking a pistol
...
If the state requires apparent ability, then Dan must believe the gun is loaded—

Saylor URL: http://www
...
org/books

Saylor
...


Threatened Battery Assault Intent
The criminal intent element required for threatened battery assault is the specific
intent or purposely to cause fear of harmful or offensive contact
...


Example of Threatened Battery Assault Intent
Review the example in Section 10 "Example of Threatened Battery Assault Act"
...
Diana is aware that the gun is unloaded,
but Dan is not
...

Diana’s act of pointing the gun at Dan and cocking it, after making a verbal threat, indicates that she has
the specific intent or purposely to cause apprehension in Dan of imminent harmful physical contact
...
Note that Diana does not have
the proper criminal intent forattempted battery assault if the gun is unloaded
...


Threatened Battery Assault Causation
The defendant’s criminal act must be the factual and legal cause of the harm that is defined in Section
10 "Threatened Battery Assault Harm"
...


[23]

Thus the victim’s lack of awareness of the defendant’s criminal

act could operate as a failure of proof oraffirmative defense in many jurisdictions
...
Change the example so
that after Diana verbally threatens Dan, he shrugs, turns around, and begins to walk away
...
Dan is unaware of this

Saylor URL: http://www
...
org/books

Saylor
...
Diana has probably not committed threatened battery
assault in this situation
...
If
Diana silently waves a gun at Dan’s back, it does not appear that she has the specific intent or purposely to
inspire fear in Dan of harmful physical contact
...
Thus Diana may not
be convicted of assault with a deadly weapon in states that criminalize only threatened battery assault
...
Attempted battery assault requires neither intent to inspire fear in the victim nor victim
awareness of the defendant’s criminal act
...
Attempted battery assault has no harm element, so the crime is complete as
soon as Diana commits the criminal act supported by criminal intent
...
7 Diagram of Assault Elements

Saylor URL: http://www
...
org/books

Saylor
...
8 Crack the Code

Assault Grading
Assault grading is very similar to battery grading in many jurisdictions
...
”
a felony
...


[25]

Aggravated assault is generally

Factors that could enhance grading of assault are the use of a deadly weapon and assault

against a law enforcement officer, teacher, or helpless individual
...
2 Comparing Battery, Attempted Battery, and Threatened Battery Assault
Saylor URL: http://www
...
org/books

Saylor
...


KEY TAKEAWAYS


The criminal act element required for battery is an unlawful touching
...
Jurisdictions that criminalize reckless or negligent battery generally
require actual injury, serious bodily injury, or the use of a deadly weapon
...




The harm element of battery is physical contact
...




Battery that causes offense or emotional injury is typically graded as a misdemeanor,
and battery that causes physical injury is typically graded as a gross misdemeanor or a
felony
...


Saylor URL: http://www
...
org/books

Saylor
...
Threatened battery assault requires causation and harm; the victim
must experience reasonable fear of imminent physical contact
...
Because attempted battery assault is an attempt crime, it also generally
requires present ability to commit the battery
...
Words
generally are not enough to constitute the criminal act element, nor are conditional
threats
...
The
criminal intent element required for threatened battery assault is specific intent or
purposely to inspire the victim’s reasonable fear
...




Simple assault is generally graded as a misdemeanor; aggravated assault is generally
graded as a felony
...

EXERCISES
Answer the following questions
...


1
...
Bob swings at Rick with his
fist, but Rick ducks and Bob does not hit Rick
...
Identify the crimes committed in this
situation
...
Read State v
...
W
...
What criminal act did the defendant
commit that resulted in a conviction for battery? Did the Court of Appeals of Wisconsin
uphold the defendant’s conviction? Why or why not? The case is available at this

Saylor URL: http://www
...
org/books

Saylor
...
google
...
+Higgs+601+N
...
2d+653&hl=en&as_sdt=2,5
...
Read Commonwealth v
...
E
...
In Henson, the defendant fired
blanks at a police officer and was convicted of assault with a deadly weapon
...
Did the Supreme Judicial Court of
Massachusetts uphold the defendant’s conviction? The case is available at this
link: http://scholar
...
com/scholar_case?case=11962310018051202223&hl=en&as_
sdt=2002&as_vis=1
...
onecle
...
html
...
Stat
...
§ 784
...
onecle
...
03
...

[3] K
...
A
...
lesterama
...
html
...
I
...
Laws § 11-5-2
...
justia
...
2
...

[5] “United States statutes pertaining to spanking,” Kidjacked
...
com/legal/spanking_law
...

[6] 720 ILCS § 12-3, accessed February 18, 2011, http://law
...
com/illinois/720ilcs5/12-3
...

[7] Ala
...
onecle
...
html
...
onecle
...
html
...
onecle
...
html
...
Code § 13A-6-20, accessed February 18, 2011,http://law
...
com/alabama/criminal-code/13A-620
...

[11] R
...
Gen
...
justia
...
html
...
Code § 13A-6-20(4), accessed February 18, 2011,http://law
...
com/alabama/criminal-code/13A-620
...

Saylor URL: http://www
...
org/books

Saylor
...
Stat
...
19(6) (a), 940
...
legis
...
wi
...
dll?f=templates&fn=default
...
%20940
...
Stat
...
20(5), accessed February 18,
2011,http://nxt
...
state
...
us/nxt/gateway
...
htm&d=stats&jd=ch
...

[15] Wis
...
§ 940
...
legis
...
wi
...
dll?f=templates&fn=default
...
%20940
...
Penal Code § 240, accessed February 19, 2011,http://law
...
com/california/codes/2009/pen/240248
...

[17] Commonwealth v
...
google
...

[18] People v
...
google
...

[19] Clark v
...
E
...
google
...

[20] Clark v
...
E
...
google
...

[21] Fla
...
Ann
...
011, accessed February 19, 2011,http://law
...
com/florida/crimes/784
...
html
...
Porro, 458 Mass
...
google
...
+Porro&hl=en&as_sdt=4,22
...
Porro, 458 Mass
...
google
...
+Porro&hl=en&as_sdt=4,22
...
Rev
...
§ 13-1203, accessed February 20, 2011,http://law
...
com/arizona/criminal-code/131203
...


Saylor URL: http://www
...
org/books

Saylor
...
Rev
...
§ 13-1203, accessed February 20, 2011,http://law
...
com/arizona/criminal-code/131203
...

[26] Ariz
...
Stat
...
onecle
...
html
...
Rev
...
§ 13-1204, accessed February 20, 2011,http://law
...
com/arizona/criminal-code/131204
...


10
...


Identify the individuals covered by domestic violence statutes
...
Identify some of the special features of domestic violence statutes
...
Define the criminal act element required for stalking
...
Define the criminal intent element required for stalking, and compare various statutory
approaches to stalking criminal intent
...
Define the harm element required for stalking, and compare various statutory
approaches to ascertaining harm
...
Analyze stalking grading
...
Domestic violence statutes are drafted to address issues that are prevalent in crimes between family members
or individuals living in the same household
...


Domestic Violence
Domestic violence statutes generally focus on criminal conduct that occurs betweenfamily members
...
In addition, historical evidence indicates that law enforcement
can be reluctant to get involved in family disputes and often fails to adequately protect victims who are
trapped in the same residence as the defendant
...
saylor
...
org
427

jurisdictions are beginning to adopt
...


Domestic Violence Statutes’ Characteristics
The purpose of many domestic violence statutes is equal enforcement and treatment of crimes between
family members and maximum protection for the domestic violence victim
...


[2]

Domestic violence statutes commonly contain the following

provisions:


Special training for law enforcement in domestic issues [3]



Protection of the victim by no-contact orders and nondisclosure of the victim’s residence
address [4]



Duty of law enforcement or prosecutors to inform the victim of the decision of whether
to prosecute and the duty to inform the victim of special procedures available to protect
domestic violence victims [5]



Ability to arrest domestic violence offenders with or without a warrant [6]



Special factors to consider in the sentencing of domestic violence defendants [7]



Peace officer immunity for enforcement of domestic violence provisions [8]

Stalking
California was the first state to enact a stalking law in 1990, in response to the high-profile murder of a
young actress named Rebecca Schaeffer whose attacker stalked her for two years
...
Although statutes criminalizing stalking are gender-neutral, in
reality, most stalking victims are women, and most stalking defendants are men
...
A restraining order is a court order
mandating that the defendant neither contact nor come within a certain distance of the victim
...
Until a restraining
order was in place, however, the defendant was free to continue frightening the victim
...
The victim must contact and employ an attorney and also set up a

Saylor URL: http://www
...
org/books

Saylor
...
For this reason, the restraining order method of preventing a defendant from stalking was
cumbersome, ineffective, and frequently resulted in force or violence against the stalking victim
...
Like all crimes, stalking requires the
defendant to commit a voluntary act supported by criminal intent
...


Stalking Act
Various approaches have been made to criminalize stalking, and a plethora of descriptors now identify the
stalking criminal act
...


[14]

In general, credible threat means the

defendant has the apparent ability to effectuate the harm threatened
...


[16]

The

popularity of social networking sites and the frequency with which defendants use the Internet to stalk
their victims inspired many states to specifically criminalize cyberstalking, which is the use of the Internet
or e-mail to commit the criminal act of stalking
...
Lisa intensely dislikes Elliot and wants
nothing to do with him
...
Elliot’s behavior does not threaten
Lisa’s safety or the safety of her family members or property
...


Example of Stalking Act
Change the example in so that Elliot tells Lisa he loves her on one occasion
...

Elliot then follows Lisa and tells her that he will “make her pay” for not loving him
...
Later that evening, Elliot rings Lisa’s doorbell
...
Disgruntled and angry, Elliot carves, “you will
die for not loving me” into Lisa’s front door with his pocketknife
...
saylor
...
org
429

Elliot’s conduct could constitute the criminal act element required for stalking in most jurisdictions
...
On two
occasions Elliot threatened Lisa: once by telling her he will “make her pay” and again by carving a death
threat into her front door
...
Thus if Elliot is unable to actually harm Lisa for any reason, the trier of fact could find that
he does not have the apparent ability to carry out his threat, and he could not be convicted of stalking
...
In most
states, the defendant must commit the criminal act willfully or maliciously
...
However, in states that require the victim to experience harm, a
different criminal intent could support the harm offense element
...


[19]

Example of Stalking Intent
Review the stalking act example in
...
However, the
requirement that Elliot act with the intent tocause Lisa’s reaction to this conduct varies, depending on
the jurisdiction
...
In others, Elliot can act to cause Lisa’s fear with general intent or knowingly,
reckless intent, or negligent intent
...


Stalking Causation
In jurisdictions that require harm for stalking, the defendant’s criminal act must be
thefactual and legal cause of the harm, which is defined in
...
This element
is defined differently depending on the state but generally amounts to victim fear
...
saylor
...
org
430

fear of bodily injury or death of the victim
victim’s property
...
States can require

subjectiveand objective fear,

[23]

just subjective fear,

[24]

or just objective fear
...
Objective fear means a reasonable victim under similar
circumstances would experience fear
...
In jurisdictions that require subjective andobjective victim fear as the
harm element for stalking, Elliot must cause Lisa to experience fear that is reasonable under the
circumstances
...
In a jurisdiction that requires only objective fear, Elliot must act
in a manner that would cause a reasonable victim under similar circumstances to experience fear
...


Stalking Grading
Jurisdictions vary as to how they grade stalking
...
First-degree or aggravated stalking is generally graded as a felony, and seconddegree or simple stalking is generally graded as a misdemeanor
...


[27]

Saylor URL: http://www
...
org/books

Saylor
...
9 Diagram of Domestic Violence and Stalking

Saylor URL: http://www
...
org/books

Saylor
...




Some special features of domestic violence statutes are special training for law
enforcement in domestic issues, protection of the victim by no-contact orders and
nondisclosure of the victim’s residence address, the duty of law enforcement or
prosecutors to inform the victim of the decision of whether to prosecute and the duty to

Saylor URL: http://www
...
org/books

Saylor
...



The criminal act element required for stalking varies, but in general it is repeatedly
engaging in a course of conduct that poses a credible threat to the victim’s safety,
including following, harassing, approaching, or pursuing the victim
...
Some jurisdictions require a different criminal intent to support the
harm requirement: either specific intent or purposely, general intent or knowingly,
reckless intent, negligent intent, or strict liability
...
The test for victim fear varies and could be either subjective and
objective fear, just subjective fear, or just objective fear
...
Firstdegree or aggravated stalking is generally graded as a felony, and second-degree or
simple stalking is generally graded as a misdemeanor
...

EXERCISES
Answer the following questions
...


1
...
Could this be considered
domestic violence?
2
...
Holbach, 2009 ND 37 (2009)
...
The defendant was on probation for stalking the victim and
subject to conditions of probation, including a stay-away order
...
Did
Saylor URL: http://www
...
org/books

Saylor
...
google
...

3
...
State, 676 S
...
2d 766 (2009)
...
google
...


[1] RCW § 10
...
010, accessed February 21, 2011, http://apps
...
wa
...
aspx?cite=10
...
010
...
Rev
...
§ 13-3601(A), accessed February 21, 2011,http://www
...
state
...
us/ars/13/03601
...

[3] RCW § 10
...
030, accessed February 21, 2011, http://apps
...
wa
...
aspx?cite=10
...
030
...
99
...
leg
...
gov/rcw/default
...
99
...

[5] RCW § 10
...
060, accessed February 21, 2011, http://apps
...
wa
...
aspx?cite=10
...
060, Ariz
...
Stat
...
azleg
...
az
...
htm
...
Rev
...
§ 13-3601(B), accessed February 21, 2011,http://www
...
state
...
us/ars/13/03601
...

[7] RCW § 10
...
100, accessed February 21, 2011, http://apps
...
wa
...
aspx?cite=10
...
100
...
Rev
...
§ 13-3601(G), accessed February 21, 2011,http://www
...
state
...
us/ars/13/03601
...

[9] 18 U
...
C
...
ncvc
...
aspx?dbID=DB_Federal_Interstate_Stalking_Institute163#61a
...
Penal Code § 42
...
ncvc
...
aspx?dbID=DB_Texas176
...
Penal Code § 646
...
ncvc
...
aspx?dbID=DB_California176 (accessed February 22, 1022)
...
Code Ann
...
ncvc
...
aspx?dbID=DB_Maryland678
...
Code § 13A-6-90, accessed February 22,
2011, http://www
...
org/src/main
...

Saylor URL: http://www
...
org/books

Saylor
...
Penal Code § 42
...
ncvc
...
aspx?dbID=DB_Texas176
...
D
...
ncvc
...
aspx?dbID=DB_SouthDakota123
...
Rev
...
Ann
...
ncvc
...
aspx?dbID=DB_Colorado285
...
§ 11
...
270 (b) (3) (F), accessed February 22,
2011,http://www
...
org/src/main
...

[18] Cal
...
9, accessed February 22,
2011,http://www
...
org/src/main
...

[19] “Criminal Stalking Laws,” Ncvc
...
ncvc
...
aspx?dbID=DB_State-byState_Statutes117
...
Code § 13A-6-90, accessed February 22,
2011, http://www
...
org/src/main
...

[21] Alaska Stat
...
41
...
ncvc
...
aspx?dbID=DB_Alaska803
...
Penal Code § 42
...
ncvc
...
aspx?dbID=DB_Texas176
...
Penal Code § 42
...
ncvc
...
aspx?dbID=DB_Texas176
...
§ 11
...
270 (a), accessed February 22,
2011,http://www
...
org/src/main
...

[25] Md
...
§ 3-802, accessed February 22,
2011,http://www
...
org/src/main
...

[26] Alaska Stat
...
41
...
41
...
ncvc
...
aspx?dbID=DB_Alaska803
...
§ 11
...
260, accessed February 24,
2011,http://www
...
org/src/main
...
saylor
...
org
436

10
...


Define the criminal act element required for kidnapping
...
Define the criminal intent element required for kidnapping
...
Define the harm element required for kidnapping
...
Define the attendant circumstance element required for kidnapping
...
Analyze kidnapping grading
...
Compare false imprisonment with kidnapping
...
Identify two potential defenses to kidnapping and false imprisonment
...
Identify two special features of interference with custody statutes
...
In ancient times, kidnapping was used to remove members of royalty from the kingdom for ransom or to
implement the overthrow of the existing monarchy
...

In modern times, kidnapping is still a serious felony, although the US Supreme Court has held that capital
punishment for any crime against an individual other than criminal homicide is unconstitutional
...


Kidnapping Elements
In most jurisdictions, kidnapping has the elements of criminal act, criminal intent, causation, harm, and
an attendant circumstance
...
First, the defendant must confine the
victim
...
One

common issue with the kidnapping criminal act is how far the victim must be moved
...


[2]

Other states do not require asportation when the kidnapping is for ransom
...


Saylor URL: http://www
...
org/books

[4]

[3]

Some states

The Model Penal Code requires the

Saylor
...
1)
...
1)
...
A picture window in front of the
couch puts Abby in full view of the street and sidewalk
...
Joseph has probably not committed the
criminal act element required for kidnapping if the kidnapping statute in Joseph’s state
requires asportation
...
However, his movement of
Abby from the couch to the bedroom appears incidental to the crime of rape, which is not sufficient to
constitute kidnapping asportation in most jurisdictions
...


[6]

Example of Kidnapping Intent
Review the example in with Joseph and Abby
...
Joseph probably has the criminal intent required for kidnapping in most
jurisdictions
...
” Thus if the other
elements of kidnapping are present, Joseph can most likely be charged with and convicted of kidnapping,
along with the crime of rape
...
saylor
...
org
438

Kidnapping Causation
In jurisdictions that require harm for kidnapping, the defendant’s criminal act must be
the factual and legal cause of the harm, which is defined in
...
As
stated previously, some jurisdictions have done away with the asportation requirement or do not require
asportation when the kidnapping is for ransom
...


[7]

Thus

consent could function as a failure of proof oraffirmative defense to kidnapping
...
Thomas pulls over, rolls down the
window, and asks Shawna if she wants a ride
...

Thomas drives away with Shawna in the front seat
...

Although Thomas confined and moved Shawna in his vehicle, the facts do not indicate that he has the
specific intent to harm her, obtain a ransom, confine her in secret, or commit a separate offense
...
Thus the attendant
circumstance element for kidnapping is also absent and Thomas’s conduct may be perfectly legal
(unless engaging in hitchhiking is illegal in Thomas’s state)
...
Thomas refuses, threatens to harm Shawna if she tries to escape, and continues to drive another
twenty miles with Shawna in the front seat
...
Although Shawna’s original entrance into Thomas’s
vehicle and her asportation for the first fifty miles was consensual, once Shawna requested that Thomas
pull over and let her out, the confinement or asportation was against Shawna’s will and without her
consent
...


Saylor URL: http://www
...
org/books

Saylor
...
The Model Penal Code grades kidnapping as a felony
of the first or second degree (Model Penal Code § 212
...
Many states divide kidnapping into degrees or
grade it as simple and aggravated
...


[9]

One

factor that could mitigate or reduce grading is the defendant’s release of the victim unharmed in a safe
place
...


[12]

[11]

or the infliction of serious

When kidnapping takes a victim across state lines, the defendant can also be prosecuted

for the additional offense of federal kidnapping
...
This means that the crime of false imprisonment is missing one or two of the kidnapping
elements and is graded lower than kidnapping
...
In general, false imprisonment and
felonious restraint under the Model Penal Code require confinement but not asportation (Model Penal
Code §212
...


[14]

In some jurisdictions, false imprisonment requires onlygeneral

intent or knowingly to commit the criminal act, rather than the specific intent or purposely to
commit other crimes, harm the victim, or receive a ransom
...


[16]

The Model Penal Code grades felonious restraint as a felony of the third degree (Model Penal

Code § 212
...
Factors that can aggravate grading of false imprisonment are the youth of the victim
the use of force or violence to carry out the criminal act
...
Change the facts so that after fifty miles of driving, Shawna asks
Thomas to pull over and let her out
...
In this
case, Thomas might have committed false imprisonment
...
Thomas did not move Shawna without her consent because he pulled

Saylor URL: http://www
...
org/books

Saylor
...
However, asportation is not required for false imprisonment
...
Thus these facts indicate the lower-level crime of false imprisonment
rather than kidnapping, and Thomas may be charged with and convicted of this offense
...
Another potential defense is lawful authority to execute the
kidnapping or false imprisonment
...
By the same token, if an arrest
is executed unlawfully, it might be kidnapping, false imprisonment, or another related offense
...
10 Diagram of Defenses to Kidnapping and False Imprisonment

Interference with Custody
Because of a dramatic increase in the abduction of children by their estranged parents and parental interference with
child custody and visitation agreements, almost all states have specifically criminalized interference with the

custody of children

[20]

or unlawful visitation
...
saylor
...
org
441

be in danger without the allegedly criminal conduct
...


[24]

Table 10
...
11 Diagram of Crimes against the Person

KEY TAKEAWAYS


The criminal act element required for kidnapping in many jurisdictions is confinement
and asportation of the victim
...




The criminal intent element required for kidnapping in many jurisdictions is the specific
intent or purposely to commit the criminal act in order to harm or injure the victim or
another, confine or hold the victim in secret, receive a ransom, commit a separate
offense, subject the victim to involuntary servitude, or interfere with the purpose of the
government or some political function
...




The attendant circumstance element required for kidnapping is lack of victim consent
...
saylor
...
org
442



Kidnapping is generally graded as first degree or aggravated or as second degree or
simple
...
One factor that could mitigate
or reduce grading is the release of the victim unharmed in a safe place
...




False imprisonment is often a lesser included offense of kidnapping, missing the
asportation element, and requiring general intent or knowing commission of the criminal
act
...




Two potential defenses to kidnapping and false imprisonment are victim consent and a
lawful arrest by a law enforcement officer or citizen
...


EXERCISES
Answer the following questions
...


1
...
When a security guard threatens to shoot Coby,
he grabs a customer in the bank and holds a knife to her throat
...
Has Coby committed kidnapping in this case? Why or why not?
2
...
Salaman, 949 A
...
In Salaman, the defendant grabbed the
victim, pinned her to the stairs for five minutes, punched her in the face, and violently
stuck his fingers down her throat
...
In Connecticut, the state where the offense occurred, the
kidnapping criminal act is restraint with the specific intent to prevent the victim’s
liberation
...
Did the Supreme Court of
Saylor URL: http://www
...
org/books

Saylor
...
google
...

3
...
Rivera, 828 A
...
In Rivera, the defendant, who had
a court order depriving him of custody, forcibly removed his daughter from her day care
and drove around with her in his car, frequently calling and terrorizing the child’s
mother
...
The underlying felony for the felony
murder was kidnapping, and the defendant appealed claiming he could not legally
kidnap his own biological child
...
google
...


[1] 720 ILCS § 5/10-1, http://law
...
com/illinois/720ilcs5/10-1
...

[2] People v
...
2d 866 (2006), accessed February 24,
2011,http://scholar
...
com/scholar_case?case=3515612573668484000&q=
People+v
...

[3] N
...
S
...
310, accessed February 24, 2011,http://law
...
com/nevada/crimes/200
...
html
...
C
...
Stat
...
onecle
...
html
...
R
...
§ 200
...
onecle
...
310
...

[6] Ariz
...
Stat
...
onecle
...
html
...
C
...
Stat
...
onecle
...
html
...
R
...
§ 200
...
onecle
...
310
...

[9] N
...
S
...
310, accessed February 24, 2011,http://law
...
com/nevada/crimes/200
...
html
...
saylor
...
org
444

[10] Ariz
...
Stat
...
onecle
...
html
...
5 End-of-Chapter Material
Summary
States vary as to how they categorize and grade sex offenses
...
Although the victim had to resist to
indicate lack of consent at early common law, in modern times the victim need not resist if it would be
futile to do so
...

Most states have rape shield laws that govern the admissibility of evidence of the victim’s past sexual
conduct at a trial for rape
...
If sodomy and oral copulation are the subject of separate statutes,
sodomy is typically knowing forcible penis to anus penetration, and oral copulation is typically knowing
forcible mouth to sexual organ or anus penetration
...
States vary as
to how they grade sex offenses, with force and penetration enhancing the grading to a felony in most
jurisdictions
...
Battery is generally a purposeful, knowing, reckless, or negligent
(depending on the jurisdiction) unlawful harmful or offensive touching without victim consent
...
Simple battery and simple assault are typically misdemeanors, while aggravated
versions of these offenses are often felonies
...

Domestic violence statutes criminalize conduct such as assault, battery, sex offenses, or criminal homicide
between family members and have special provisions that pertain to interfamily violence
...

Saylor URL: http://www
...
org/books

Saylor
...
Simple stalking is generally a
misdemeanor, while aggravated stalking, which is stalking that causes injury or violates a restraining
order, is generally a felony
...
False imprisonment is a lesser included offense of kidnapping that does
not include asportation or specific intent
...
While kidnapping is typically a felony, false imprisonment and
interference with custody are generally graded lower, as either a gross misdemeanor or low-level felony
...
You have been given five case
files
...
Check your answers using the
answer key at the end of the chapter
...
The defendant was on a date with the victim
...

The defendant thereafter drove to a secluded area where she had sexual intercourse
with the victim
...

Which crime has been committed? Is the crime amisdemeanor or a felony?
2
...
Whichcrime is this? Is this
a misdemeanor or a felony?
3
...
After the defendant was
arrested, law enforcement determined that the “knife” was made of rubber and could
not cause injury
...
saylor
...
org
446

4
...
Whichcrime has been
committed? Is the crime a misdemeanor or a felony?
5
...
Which crime has been committed? Is the crime amisdemeanor or a felony?

Cases of Interest


U
...
v
...
S
...
law
...
edu/supct/html/95-1717
...
html



Oregon v
...
2d 1128 (1997), discusses the constitutionality of Oregon’s
stalking statute under the First
Amendment:http://www
...
ojd
...
or
...
htm
...
U
...
, 326 U
...
455 (1946), discusses federal kidnapping in the context of
joining a religious cult:http://supreme
...
com/us/326/455/case
...


Articles of Interest


High-profile criminal cases, including rape criminal
cases:http://lawdigitalcommons
...
edu/cgi/viewcontent
...
nytimes
...
html



Cyberstalking among college
students:http://btci
...
clockss
...
vaw
...
edu/documents/pkreport/pkreport
...
hhs
...
shtml



Information about various sex
offenses:http://www
...
org/what_is_statutory_rape
Saylor URL: http://www
...
org/books

Saylor
...
stalkingbehavior
...
rainn
...
disastercenter
...
1 "Sex Offenses"

1
...
If Jorge and
Christina are incapable of marrying because of a family relationship, their sexual
intercourse could be incest
...
The South Carolina Supreme Court upheld the defendant’s conviction on the grounds
that force and victim resistance are not required when a victim is under the age of legal
consent
...

3
...
Thus the court upheld the defendant’s conviction and did not strike the
strict liability aggravated sexual assault statute
...


Answers to Exercises
From Section 10
...
In the first scenario where Bob swings once and misses, then swings again and connects,
two crimes have been committed: assault and battery
...
The swing that punches Rick in the stomach is a battery
...


Saylor URL: http://www
...
org/books

Saylor
...
The defendant threw a cup of urine in the victim’s face
...

3
...


Answers to Exercises
From Section 10
...
Most domestic violence statutes include individuals residing together, so this could
be domestic violence battery or assault
...
The Supreme Court of North Dakota upheld the defendant’s conviction, stating that the
constitutional right to travel is not absolute and can be restricted to protect a victim
from harm, as in this case
...
The Court of Appeals of Georgia reversed the defendant’s conviction because aggravated
stalking in Georgia requires a course of conduct violating a protective order
...


Answers to Exercises
From Section 10
...
If Coby’s state does not require asportation for kidnapping when the kidnapping is for
ransom, then Coby has probably committed kidnapping
...

2
...
Thereafter, the
court ordered a new trial on the kidnapping charge, although it surmised that a jury
could reasonably find the defendant guilty of kidnapping separate from the assault
...
saylor
...
org
449

3
...


Answer to Law and Ethics Question
1
...
They do not necessarily prevent the media from publishing information
about the victim or from taunting the victim
...
However, blanket prohibitions against
publication of information by the media would be overbroad and would violate
the First Amendment
...
This case illustrates the
damage the media can do to a fair trial, unprejudiced jury, and a willing and cooperative
victim
...


Answers to You Be the Law Enforcement Officer
1
...
Although nonforcible, sexual intercourse with an inebriated or
unconscious victim is still rape
...
Rape is a felony
...
The crime is simple battery, as long as your jurisdiction criminalizes “offensive”
physical contact
...

3
...
Threatened battery assault typically
requires apparent, rather than present, ability
...

4
...
The defendant committed the assault
with a deadly weapon and inflicted it against a law enforcement officer, so the assault is
a felony
...
The crime is kidnapping
...
saylor
...
org
450

the proper criminal intent (most likely the intent to “confine the child in secret”)
...


Chapter 11
Crimes against Property
Arson is one of the easiest crimes to commit on the spur of the moment…it takes only seconds to light a match to a
pile of clothes or a curtain…

People v
...
1 Nonviolent Theft Crimes
LEARNING OBJECTIVES
1
...


2
...

3
...

4
...

5
...

6
...

Although crimes against the person such as murder and rape are considered extremely heinous, crimes against
property can cause enormous loss, suffering, and even personal injury or death
...

Upcoming sections analyze theft crimes that involve force or threat, receiving stolen property, and crimes that invade
or damage property, such as burglary and arson
...


Consolidated Theft Statutes
Historically, nonviolent theft was broken down into three categories: larceny,embezzlement,
and false pretenses
...
Modern jurisdictions combine all three categories of nonviolent theft into

Saylor URL: http://www
...
org/books

Saylor
...
The Model Penal Code consolidates all nonviolent theft offenses, including receiving stolen
property and extortion, under one grading system (Model Penal Code § 223
...
What follows is a
discussion of theft as defined in modern consolidated theft statutes, making note of the traditional
distinctions among the various theft categories when appropriate
...


Consolidated Theft Act
The criminal act element required under consolidated theft statutes is
stealingreal property, personal property, or services
...
Personal property is any movable item
...
Personal
property can also beintangible property, which means it has value, but it cannot be touched or held, like
stocks and bonds
...
1, 223
...
3, 223
...
8)
...
When the defendant steals by a
physical taking, the theft is generally a larceny theft
...
First, the defendant
must gain control over the item
...


[1]

Although asportation for kidnapping must be a certain distance in many

jurisdictions, the asportation for larceny can be any distance—even the slightest motion is
[2]

sufficient
...
This is called larceny by trick
...

Another way for a defendant to steal property is to convert it to the defendant’s use or ownership
...
When the defendant steals by conversion,
the theft is generally anembezzlement theft
...
saylor
...
org
452

employer-employee or attorney-client
...

When the defendant steals by a false representation of fact, and the subject of the theft is a service, the
theft is generally a false pretenses theft
...
What differentiates false pretenses from
larceny by trick is the status of the property after it is stolen, which is discussed under the harm element
of consolidated theft statutes
...


Example of Consolidated Theft Act
Jeremy stops by the local convenience store on his way to work and buys some cigarettes
...
Jeremy
continues walking to his job at a local gas station
...
Once the gas station closes, Jeremy takes the other half out of
the cash register and puts it in his pocket with the chewing gum
...
While enjoying his drink, he meets a patron named Chuck, who is a taxi driver
...
Jeremy offers to take Chuck back to the gas station and do
the tune-up in exchange for a taxi ride home
...
The two drive to the gas station, and
Jeremy suggests that Chuck take a walk around the block while he performs the tune-up
...
When Chuck returns twentyfive minutes later, Jeremy tells him the tune-up is complete
...

In this scenario, Jeremy has performed three separate acts of theft
...
When Jeremy fails to ring up the entire sale for a customer and pockets the rest from the
cash register, he hasconverted the owner of the gas station’s cash for his own use, which is
anembezzlement theft
...
saylor
...
org
453

service, which is a false pretenses theft
...
The three stolen items have a relatively low value, so these crimes
would probably be graded as a misdemeanor
...

Figure 11
...
saylor
...
org
454

Consolidated Theft Intent
The criminal intent element required under consolidated theft statutes is eitherspecific intent or purposely,
or general intent or knowingly to perform the criminal act, depending on the jurisdiction
...
saylor
...
org
455

Code requirespurposeful intent for theft by unlawful taking, deception, theft of services, and theft by failure to
make required disposition of funds received (Model Penal Code §§ 223
...
3, 223
...
8)
...


[5]

This could create a potential failure of proof or affirmative

defense that the defendant was only “borrowing” property and intended to return it after use
...


[6]

Thus in these jurisdictions, a defendant who embezzles property and later replaces it cannot use this

replacement as a defense
...
Some of the plants are
delicate and must be put into the ground immediately after purchase
...
He notices that his
neighbor’s shovel is leaning against his neighbor’s garage
...
Jorge had the intent to perform
the theft act of taking personal property
...
Thus in this
scenario, Jorge may not be charged with and convicted of a consolidated theft offense
...
Change this example and assume when Jeremy charged his
customer for half of the sale and later pocketed fifty dollars from the cash register, his intent was
to borrow this fifty dollars to drink at the bar and replace the fifty dollars the next day when he got paid
...
Although Jeremy did not have the specific or purposeful intent to permanently deprive the
gas station owner of fifty dollars, this is not generally required with embezzlement theft, which is the
type of theft Jeremy committed
...

Figure 11
...
saylor
...
org
456

Larceny or False Pretenses Intent as to the False Statement of Fact
As stated previously, the taking in both larceny by trick and false pretenses occurs when the defendant
makes a false representation of fact that induces the victim to transfer the property or services
...


[7]

The

Model Penal Code criminalizes theft by deception when a defendant purposely “creates or reinforces a
Saylor URL: http://www
...
org/books

Saylor
...
3(1))
...
In this example, Jeremy told Chuck that he performed a tune-up of
Chuck’s taxi, when actually he just lifted the hood of the taxi and read a magazine
...


Consolidated Theft Attendant Circumstance of Victim Ownership
All theft requires the attendant circumstance that the property stolen is the property of
another
...


Thus mistake of fact or law as to the ownership of the property stolen could operate as a failure of
proof or affirmative defense to theft under consolidated theft statutes in many jurisdictions
...
1(3) (a))
...
Change this example so that
Jorge arrives home from the nursery and begins frantically searching for his shovel in his toolshed
...

Jorge retrieves the shovel, uses it to put his plants into the ground, and then puts it into his toolshed and
locks the door
...
Jorge took the shovel, but he mistakenly believed that it was his, not the property of another
...


Consolidated Theft Attendant Circumstance of Lack of Consent
Theft under a consolidated theft statute also typically requires the attendant circumstance element of
lack of victim consent
...
saylor
...
org
458

proof or affirmative defense in many jurisdictions
...
Thus consent obtained fraudulently, as in larceny by trick or false pretenses, is
not valid and effective and cannot form the basis of a consent defense
...
Change the example so that the owner of the gas station is
Jeremy’s best friend Cody
...
Assume that on the date in
question, Jeremy did not ring up half of a sale but simply took fifty dollars from the register because he
was short on cash, and he needed money to order drinks at the bar
...


Embezzlement Attendant Circumstance of a Relationship of Trust and Confidence
In many jurisdictions, embezzlement theft under a consolidated theft statute requires the attendant
circumstance element of a relationship of trust and confidencebetween the victim and the
defendant
...
However, if the attendant
circumstance element of trust and confidence is lacking, the defendant will not be subject to prosecution
for embezzlement under a consolidated theft statute in many jurisdictions
...
Tran’s automobile has personalized license plates, so he offers to apply
for new license plates and thereafter send them to Lee
...
Lee is allowed to take possession of the automobile
and drives it to her home that is over one hundred miles away
...
When the new license plates arrive, Tran phones Lee and tells her he is going to keep them until
Lee makes her second payment
...

Although Tran and Lee have a relationship, it is not a relationship based ontrust or confidence
...

Thus if the jurisdiction in which Tran sold the car requires a special confidential relationship for
embezzlement, Tran may not be subject to prosecution for this offense
...
saylor
...
org
459

Attendant Circumstance of Victim Reliance Required for False Pretenses or Larceny by Trick
A false pretenses or larceny by trick theft under a consolidated theft statute requires the
additional attendant circumstance element of victim reliance on the false representation of fact made
by the defendant
...


Example of a Case Lacking the Attendant Circumstance of Victim Reliance Required for False
Pretenses
Review the example with Jeremy and Chuck in
...
Instead, Chuck walks around the corner and then spies on Jeremy
while he reads a magazine with the hood open
...
After twenty-five minutes, Chuck walks back over to Jeremy and thereafter gives Jeremy the free
taxi ride home
...
In this case, Jeremy
probably has a valid defense to false pretenses theft
...
Thus the attendant circumstance element of false pretenses is lacking and Jeremy
may not be subject to prosecution for and conviction of this offense
...
Also note that Chuck’s action in threatening Jeremy so that Jeremy will pay him two hundred
dollars may be the criminal act element ofextortion, which is discussed shortly
...
3 Diagram of Defenses to Consolidated Theft

Saylor URL: http://www
...
org/books

Saylor
...


Consolidated Theft Harm
Consolidated theft is a crime that always includes bad results or harm, which is the victim’s temporary or
permanent loss of property or services, no matter how slight the value
...
If the defendant becomes the owner of the stolen property, the
crime is afalse pretenses theft
...


[14]

[13]

If the defendant is merely in possession of the stolen property, the

When the stolen property is money, the crime is false pretenses theft

because the possessor of money is generally the owner
...
In this example, Lee paid Tran half of the money she
owed him for his vehicle, with a promise to pay the remainder in one week
...
Tran signs the ownership
documents over to Lee, promises to send Lee the license plates when they arrive, and watches as Lee
drives off, never to be seen again
...
saylor
...
org
461

rather than larceny by trick
...
The vehicle belongs to Lee, and the ownership documents are in her
name
...


Example of Larceny by Trick Harm
Jacob, a car thief, runs up to Nanette, who is sitting in her Mercedes with the engine running
...

Nanette skeptically asks Jacob for identification
...

In this example, Jacob has obtained the Mercedes, but the ownership documents are still in Nanette’s
name
...


Consolidated Theft Grading
Grading under consolidated theft statutes depends primarily on the value of the stolen property
...


[17]

Petty theft or theft of the second or third degree is

generally a misdemeanor, while grand theft or theft of the first degree is generally a felony, felonymisdemeanor, or gross misdemeanor, depending on the amount stolen or whether the item stolen is a
firearm
...
1(2))
...
1(2))
...


[19]

The Model Penal Code provides that “[t]he amount

involved in a theft shall be deemed to be the highest value, by any reasonable standard…[a]mounts
involved in thefts committed pursuant to one scheme or course of conduct, whether from the same person
or several persons, may be aggregated in determining the grade or the offense” (Model Penal Code
§ 223
...


Saylor URL: http://www
...
org/books

Saylor
...
1 Comparing Larceny, Larceny by Trick, False Pretenses, and Embezzlement

Crime

Criminal Act

Type of
Property

Criminal Intent

Attendant
Circumstance

Harm

Larceny

Taking control
plus asportation Personal

Specific or
purposely to
deprive victim
permanently*

Larceny by
trick

Taking by a false
representation
of fact
Personal

Specific or
purposely to
deceive*

False
pretenses

Taking by a false Personal,
representation
real,
of fact
services

Specific or
purposely to
deceive*

Victim reliance on
false representation

Victim loses
ownership of
property

Specific or
purposely to
deprive victim
temporarily or
permanently*

Relationship of trust
and confidence
between defendant
and victim (some
jurisdictions)

Property loss
either
temporary or
permanent

Embezzlement Conversion

Personal,
real

Victim’s property
(applies to all four
theft crimes), lack of
victim consent
Property loss
Victim reliance on
false representation

Victim loses
possession of
property

*Some jurisdictions include general intent or knowingly to commit the criminal act
...


Federal Mail Fraud
The federal government criminalizes theft by use of the federal postal service asfederal mail fraud, a
felony
...
In addition, a

defendant can be prosecuted by the federal and state government for one act of theft without violating the
double jeopardy protection in the Fifth Amendment of the federal Constitution
...


[21]

Scheme has been given a broad interpretation and includes “everything designed to defraud

by representations as to the past or present, or suggestions and promises as to the future
...

the defendant does not need to actually mail anything himself or herself
...


[25]

The defendant does not have to intend that the US Mail will be used to commit

the theft, as long as use of the postal service is reasonably foreseeable in the ordinary course of
business
...
saylor
...
org
463

the factual andlegal cause of the harm, which is the placement of anything in any post office or
depository to be sent by the US Postal Service in furtherance of the scheme to defraud
...


[28]

In a Ponzi scheme, the defendant informs investors that their

investment is being used to purchase real estate, stocks, or bonds, when, in actuality, the money is
appropriated by the defendant and used to pay earlier investors
...

Federal statutes also punish bank fraud,
labor contracting
...


[33]

KEY TAKEAWAYS


The criminal act element required for consolidated theft statutes is stealing real or
personal property or services
...




The criminal intent element required for consolidated theft statutes is either specific
intent or purposely, or general intent or knowingly to perform the criminal act,
depending on the jurisdiction
...
For false pretenses or larceny by trick theft, in many jurisdictions the
defendant must have general intent or knowledge that the representation of fact is false
and must make the false representation with the specific intent or purposely to deceive
...


o

In many jurisdictions, embezzlement theft under a consolidated theft statute
requires the attendant circumstance element of a relationship of trust and
confidence between the victim and the defendant
...
saylor
...
org
464

o

A false pretenses or larceny by trick theft under a consolidated theft statute
requires the additional attendant circumstance element of victim reliance on the
false representation of fact made by the defendant
...
When the
defendant gains possession of personal property by a false representation of fact, the
theft is larceny by trick theft
...




Theft can be graded by degrees or as petty theft, which is theft of property with low
value, and grand theft, which is theft of property with significant value
...




The criminal act element required for federal mail fraud is the use of the federal postal
service to further any scheme to defraud
...

The criminal act supported by the criminal intent must be the factual and legal cause of
the harm, which is the placement of anything in a depository or postal office that
furthers the scheme to defraud
...

EXERCISES
Answer the following questions
...


1
...
What type of theft did Linda commit in this scenario?
2
...
The clerk takes the watch out of the case
and lays it on the counter
...
When the
clerk turns around, Ellen puts her hand over the watch and begins to slide it across the
counter and into her open purse
...
saylor
...
org
465

back around and pins Ellen’s hand to the counter, shouting for a security guard
...
Read State v
...
W
...
In Larson, the defendant, the owner of an
automobile leasing company, was convicted of theft by temporary taking under a
consolidated theft statute for failing to return security deposits to customers pursuant to
their automobile lease contracts
...
” Did the Supreme Court of Minnesota
uphold the defendant’s conviction? Why or why not? The case is available at this
link: http://scholar
...
com/scholar_case?case=18374046737925458759&q=
embezzlement+%22temporary+taking%22&hl=en&as_sdt=2,5
...
Read People v
...
App
...
In Traster, the defendant told his
employer that it was necessary to purchase computer-licensing agreements, and he was
given the employer credit card to purchase them
...

The defendant was convicted of theft by false pretenses under a consolidated theft
statute
...
google
...

5
...
S
...
Ingles, 445 F
...
In Ingles, the defendant was convicted of
federal mail fraud when his son’s cabin was burned by arson and his son made a claim
for homeowner’s insurance
...
The defendant’s son was acquitted of the arson, and only the insurance
company, which sent several letters to the defendant’s son, did the acts of mailing
...
google
...


Saylor URL: http://www
...
org/books

Saylor
...
Commonwealth, 667 S
...
2d 763 (2008), accessed March 8,
2011,http://scholar
...
com/scholar_case?case=2834311189194937383&q=
larceny+asportation&hl=en&as_sdt=2,5&as_ylo=1999
...
Commonwealth, 667 S
...
2d 763 (2008), accessed March 8,
2011,http://scholar
...
com/scholar_case?case=2834311189194937383&q=
larceny+asportation&hl=en&as_sdt=2,5&as_ylo=1999
...
Mills, 436 Mass
...
google
...

[4] Cal
...
onecle
...
html
...
Ungar, 17 P
...
google
...

[6] In the Matter of Schwimmer, 108 P
...
google
...

[7] People v
...
W
...
google
...

[8] Alaska Stat
...
46
...
justia
...

[9] Haw
...
Stat
...
justia
...

[10] Tex
...
03(b) (1), accessed March 8, 2011,http://law
...
com/codes/texas/2009/penalcode/title-7-offenses-against-property/chapter-31-theft
...
Mills, 436 Mass
...
google
...


Saylor URL: http://www
...
org/books

Saylor
...
Lueth, 660 N
...
2d 332 (2002), accessed March 9,
2011,http://scholar
...
com/scholar_case?case=16580779180424536816&q=
false+pretenses+knowledge+statement+is+false+intent+to+deceive&hl= en&as_sdt=2,5&as_ylo=1999
...
Curtin, 22 Cal
...
4th 528 (1994), accessed March 10,
2011,http://scholar
...
com/scholar_case?case=3765672039191216315&q=
false+pretenses+theft+of+a+service&hl=en&as_sdt=2,5&as_ylo=1999
...
Beaver, 186 Cal
...
4th 107 (2010), accessed March 10,
2011,http://scholar
...
com/scholar_case?case=12194560873043980150&q=
false+pretenses+theft+of+a+service&hl=en&as_sdt=2,5&as_ylo=1999
...
Curtin, 22 Cal
...
4th 528 (1994), accessed March 10,
2011,http://scholar
...
com/scholar_case?case=3765672039191216315&q=
false+pretenses+theft+of+a+service&hl=en&as_sdt=2,5&as_ylo=1999
...
jud
...
gov/JI/criminal/part9/9
...
htm
...
Penal Code § 486, accessed March 10, 2011,http://law
...
com/california/penal/486
...

[18] Cal
...
onecle
...
html
...
jud
...
gov/JI/criminal/part9/9
...
htm
...
S
...
§ 1341, accessed March 18, 2011,http://www
...
cornell
...
html
...
S
...
§ 1341, accessed March 18, 2011,http://www
...
cornell
...
html
...
U
...
, 161 U
...
306, 313 (1896), http://supreme
...
com/us/161/306
...
S
...
McClelland, 868 F
...
google
...

[24] U
...
v
...
2d 704 (1989), accessed March 18,
2011,http://scholar
...
com/scholar_case?case=8428034080210339517&q=
federal+mail+fraud+%22one+letter%22&hl=en&as_sdt=2,5&as_ylo=2000
...
saylor
...
org
468

[25] U
...
v
...
2d 704 (1989), accessed March 18,
2011,http://scholar
...
com/scholar_case?case=8428034080210339517&q=
federal+mail+fraud+%22one+letter%22&hl=en&as_sdt=2,5&as_ylo=2000
...
S
...
McClelland, 868 F
...
google
...

[27] 18 U
...
C
...
law
...
edu/uscode/18/usc_sec_18_00001341---000-
...

[28] Constance Parten, “After Madoff: Notable Ponzi Schemes,” CNBC website, accessed March 11,
2011, http://www
...
com/id/41722418/After_Madoff_Most_Notable_Ponzi_Scams
...
S
...
§ 1344, accessed March 11, 2011,http://www
...
cornell
...
html
...
S
...
§ 1347, accessed March 11, 2011,http://www
...
cornell
...
html
...
S
...
§ 1348, accessed March 11, 2011,http://www
...
cornell
...
html
...
S
...
§ 1351, accessed March 11, 2011,http://www
...
cornell
...
html
...
S
...
§ 1343, accessed March 11, 2011,http://www
...
cornell
...
html
...
2 Extortion, Robbery, and Receiving Stolen Property
LEARNING OBJECTIVES
1
...


2
...

3
...

4
...

5
...

6
...


Saylor URL: http://www
...
org/books

Saylor
...
Identify the differences between robbery, larceny, and extortion
...
Analyze robbery grading
...
Define the criminal act element required for receiving stolen property
...
Define the criminal intent element required for receiving stolen property
...
Identify a failure of proof or affirmative defense to receiving stolen property in some
jurisdictions
...
Define the attendant circumstances and harm element required for receiving stolen
property
...
Analyze receiving stolen property grading
...


[1]

As stated

previously, the Model Penal Code criminalizes theft by extortion and grades it the same as all other
nonforcible theft offenses (Model Penal Code § 223
...
Extortion is typically nonviolent, but the elements
of extortion are very similar to robbery, which is considered a forcible theft offense
...

Extortion has the elements of criminal act, criminal intent, attendant circumstances, causation, and harm,
as is explored in
...


[2]

The

Model Penal Code criminalizes theft by extortion when the defendant obtains property of another by
threatening to inflict bodily injury on anyone, commit any criminal offense, accuse anyone of a criminal
offense, expose any secret tending to subject any person to hatred, contempt, or ridicule or impair his
credit and business repute, take or withhold action as an official, bring about a strike or boycott, testify
with respect to another’s legal claim, or inflict any other harm that would not benefit the actor (Model
Penal Code § 223
...
Note that some of these acts could be legal, as long as they are not performed with
the unlawful intent to steal
...
saylor
...
org
470

Example of Extortion Act
Rodney tells Lindsey that he will report her illegal drug trafficking to local law enforcement if she does not
pay him fifteen thousand dollars
...
Note that Rodney’s threat to expose Lindsey’s illegal activities is
actually desirable behavior when performed with the intent to eliminate or reduce crime
...


Extortion Intent
The criminal intent element required for extortion is typically the specific intent orpurposely to
commit the criminal act and to unlawfully deprive the victim of propertypermanently
...
Some jurisdictions only require general intent or knowingly to perform the criminal
act
...
Change the example and assume that Rodney asks
Lindsey to loan him the fifteen thousand dollars so that he can make a balloon payment due on his
mortgage
...
Rodney thereafter threatens to expose Lindsey’s drug trafficking if she doesn’t
loan him the money
...
Although Rodney performed the criminal act of threatening to report Lindsey for a crime, he
did so with the intent to borrow money from Lindsey
...


Extortion Attendant Circumstance
Extortion is a form of theft, so it has the same attendant circumstance required in consolidated theft
statutes—the property stolen belongs to another
...


[5]

The Model Penal Code provides an affirmative defense to extortion by threat of

accusation of a criminal offense, exposure of a secret, or threat to take or withhold action as an official if

Saylor URL: http://www
...
org/books

Saylor
...
4)
...
Tara decides
she wants to get the property listing of a competitor by using Trent to obtain information
...
She asks him to make an appointment with the
competitor, ask a lot of questions about the owner of the property, and thereafter bring Tara the
information
...
Trent spends several
hours performing this task and thereafter demands his one thousand dollars payment
...
Trent threatens to tell Tara’s competitor what
she is up to if she doesn’t pay him the one thousand dollars
...
Although Trent threatened to expose Tara’s secret if she didn’t pay him one
thousand dollars, Trent honestly believed he was owed this money for a job he performed that
was directly related to the secret
...


Attendant Circumstance of Victim Consent
Extortion also requires the attendant circumstance of victim consent
...


[6]

Example of Attendant Circumstance of Victim Consent for Extortion
Review the example with Rodney and Lindsey in
...
In this example, Lindsey
is consensually transferring the money to Rodney to prevent him from making good on his threat
...


Extortion Causation
The criminal act must be the factual and legal cause of extortion harm, which is defined in
...
saylor
...
org
472

Extortion Harm
The defendant must obtain property belonging to another for the completed crime of extortion in most
jurisdictions
...


[8]

Example of a Case Lacking Extortion Harm
Review the example with Rodney and Lindsey in
...
In this case, because Rodney did not “obtain”
property by threat, the crime of extortion is not complete, and attempted extortion would be the
appropriate charge in most jurisdictions
...
saylor
...
org
473

Figure 11
...


[9]

As stated previously, the Model Penal

Code grades extortion under its consolidated theft offense
...
The criminalization of robbery was a natural progression
from other common-law crimes against the person because robbery always involves force, violence, or
threat and could pose a risk of injury or death to the robbery victim, defendant, or other innocent
bystanders
...
When robbery does not result in death, it is
typically graded more severely than theft under a consolidated theft statute
...

Saylor URL: http://www
...
org/books

Saylor
...
For the purpose of
brevity, only the elements of robbery that are distinguishable from larceny and extortion are analyzed in
depth
...


Robbery Act
It is the criminal act element that primarily distinguishes robbery from larceny and extortion
...


[10]

Force is generally physical force
...


[11]

Many jurisdictions require force during the

taking, which includes the use of force to prevent the victim from reclaiming the property, or during
escape
...
1(1))
...


[13]

While larceny and extortion also require a taking, the defendant typically accomplishes the larceny taking
by stealth, or a false representation of fact
...


Example of Robbery Act
Review the example given in with Rodney and Lindsey
...
Change the example so that
Rodney tells Lindsey he will kill her if she doesn’t write him a check for fifteen thousand dollars
...
In this
scenario, Rodney has most likely committed the criminal act element required
forrobbery, not extortion
...
Compare this threat to
Rodney’s threat to expose Lindsey’s drug trafficking, which is a threat offuture harm that relates to
Lindsey’s arrest for a crime, rather than force
...
Peter walks up to Cheryl and asks her
if she wants him to read her palm
...
saylor
...
org
475

and into his pocket
...
Although Peter used a certain amount of physical force to remove Cheryl’s ring, he did not use
any force beyond what was required to gain control over Cheryl’s property and move it into his
possession
...


Robbery Attendant Circumstances
Another difference between robbery and larceny or extortion is the attendant
circumstances requirement(s)
...
It also has the same attendant
circumstance as larceny—that the defendant accomplish the taking against the victim’s will and without
consent
...


[14]

The property does not need to be in the actual

physical possession of the victim, as long as it is under the victim’s control
...


[16]

Example of Robbery Attendant Circumstances
Review the example given in with Rodney and Lindsey
...
Change this example so that Rodney
knows Lindsey has recently withdrawn fifteen thousand dollars in cash from the bank
...
Lindsey tells Rodney, “The money is in my purse, but if you
take it, you will be ruining my life!” and points to her purse, which is on the kitchen table a few feet away
...
In
this scenario, the attendant circumstances for robbery appear to be present
...
Although the money was not on Lindsey’s person, it was in herpresence and
subject to her control
...

Thus Rodney has most likely committed robbery and is subject to prosecution for and conviction of this
offense
...
saylor
...
org
476

Robbery Intent
The criminal intent element required for robbery is the same as the criminal intent element required for
larceny and extortion in many jurisdictions
...


[17]

Some jurisdictions do not require the intent to permanently deprive the victim

of property and include temporary takings in the robbery statute
...
In this example, Rodney demands a loan from Lindsey
in the amount of fifteen thousand dollars and threatens to expose her drug trafficking activities if she
doesn’t comply
...
In a jurisdiction
that requires the criminal intent to permanently deprive the victim of property for robbery, Rodney
does not have the appropriate criminal intent
...


Robbery Causation and Harm
The criminal act supported by the criminal intent must be the factual and legal causeof the
robbery harm, which is the same as the harm requirement for larceny and extortion: the property must
be transferred to the defendant
...


[20]

Example of Robbery Harm
Review the example with Rodney and Lindsey in
...
Change this example so that Lindsey leaps off of the couch and
tackles Rodney after his threat
...
Rodney manages to get out from under Lindsey and escapes
...
saylor
...
org
477

of Lindsey’s purse
...

Figure 11
...


[22]

is aggravated by the use of a weapon or when the defendant inflicts serious bodily injury
...
1(2))
...
2 Comparing Larceny, Extortion, and Robbery

Crime

Larceny

Criminal Act

Attendant Circumstance

Taking by stealth or
Specific or purposely to
false representation of deprive the victim of
Victim’s property, lack of
fact
property permanently* victim consent

Taking by threat of
future harm; not
Extortion necessarily physical

Robbery

Criminal Intent

Taking by force or
threat of imminent
force

Harm
Property
transfer

Specific or purposely to
deprive the victim of
Victim’s property; the victim
property permanently* consents based on fear

Property
transfer

Victim’s property, lack of
Specific or purposely to victim consent, property is
deprive the victim of
taken from the victim’s
property permanently* person or presence

Property
transfer**

*In some jurisdictions, the defendant can intend a temporary taking
...

Saylor URL: http://www
...
org/books

Saylor
...
Receiving stolen property criminal statutes
often are targeted at pawnbrokers or fenceswho regularly buy and sell property that is the subject of one
of the theft crimes discussed in the preceding sections
...
1, 223
...
Receiving stolen
property has the elements of criminal act, criminal intent, attendant circumstances, causation, and harm,
as is explored in
...
The Model Penal Code defines the criminal act element as receiving, retaining, or
disposing of stolen movable property (Model Penal Code § 223
...
The criminal act does not generally
require the defendant to be in actual physical possession of the property, as long as the defendant
retains control over the item(s)
...
The Model Penal Code

defines receiving as “acquiring possession, control or title, or lending on the security of the property”
(Model Penal Code § 223
...
Note that the criminal act element of receiving stolen property includes
both buying andselling
...


Example of Receiving Stolen Property Act
Chanel, a fence who deals in stolen designer perfume, arranges a sale between one of her thieves, Burt,
and a regular customer, Sandra
...
Chanel pays Burt five thousand dollars for the
perfume delivery
...

Chanel could probably be charged with and convicted of receiving stolen property in most jurisdictions
...
Chanel’s acts
of buying the perfume for five thousand dollars and then selling it for ten thousand dollars both would

Saylor URL: http://www
...
org/books

Saylor
...
Thus Chanel could be prosecuted for both acts as
separate charges of receiving stolen property
...
First, the defendant
must have the intent to commit the criminal act, which could be specific intent or purposely, general
intent or knowingly, recklessly, or negligently to either buy-receive or sell-dispose of stolen
personal property, depending on the jurisdiction
...


[30]

[29]

or the defendant must be aware or should be aware of

The Model Penal Code requires the defendant to purposely commit

the act knowing that the property is stolen or believing that the property hasprobably been stolen (Model
Penal Code § 223
...
The Model Penal Code also provides a presumption of knowledge or belief when
the defendant is a dealer, which is defined as a “person in the business of buying or selling goods
including a pawnbroker,” and has been found in possession or control of property stolen from two or
more persons on more than one occasion, or has received stolen property in another transaction within
the year preceding the transaction charged, or acquires the property for consideration far below its
reasonable value (Model Penal Code § 223
...
Many state statutes have a similar provision
...


[32]

This creates a failure of proof or affirmative defense that the defendant

received and retained the stolen property with the intent to return it to the true owner
...
6(1))
...
As he is
approaching the store, Heather saunters over from a nearby alley and asks him if he wants to buy a brand
new iPod for ten dollars
...
She hands it to him,
and he notices that the box looks like it has been tampered with and a price tag removed
...
In jurisdictions that
requireactual knowledge that the property is stolen, Chip probably does not have the appropriate

Saylor URL: http://www
...
org/books

Saylor
...
In jurisdictions that require awareness of a risk that the
property is stolen, Chip may have the appropriate criminal intent because he knew the price was too low
and noticed that the box had been tampered with to remove evidence of an actual price or vendor
...
In many jurisdictions, if Chip accepts the iPod to pawn, this creates
a presumption of receiving stolen property criminal intent
...

Change the example again so that Chip notices the following message written on the back of the iPod box:
“This iPod is the property of Eugene Schumaker
...
In many jurisdictions and under the
Model Penal Code, Chip can use his intent to return the stolen property to its true owner as a failure of
proof oraffirmative defense to receiving stolen property
...


[34]

Example of Retaining Stolen Property
Review the example with Chip and Heather in
...
Chip purchases the iPod
from Heather and thereafter drives home
...
Chip thinks about it for a minute,
continues to open the box, and then retains the iPod for the next six months
...


Saylor URL: http://www
...
org/books

Saylor
...


Receiving Stolen Property Causation
The criminal act must be the factual and legal cause of receiving stolen property harm, which is defined
in
...


[35]

If the defendant does not actually gain or transfer

control of the property, only attempted receiving stolen property can be charged
...
6 Diagram of Defenses to Receiving Stolen Property

Receiving Stolen Property Grading
Receiving stolen property is graded as a felony-misdemeanor
low value and a felony if the stolen property is of high value
...
saylor
...
org
482

Figure 11
...




The criminal intent element required for extortion is typically the specific intent or
purposely to unlawfully deprive the victim of property permanently
...




In many jurisdictions, it is an affirmative defense to extortion that the property taken by
threat to expose a secret or accuse anyone of a criminal offense is taken honestly, as
compensation for property, or as restitution or indemnification for harm done by the
secret or crime
...




The harm element required for extortion is that the defendant obtains the property of
another
...


Saylor URL: http://www
...
org/books

Saylor
...
Extortion
requires a taking by threat of future harm that is not necessarily force, and larceny
generally requires a taking by stealth or a false representation of fact
...




Robbery is typically graded as a serious felony, which is a strike in jurisdictions that have
three strikes statutes, and a predicate felony for first-degree felony murder
...




The defendant must have the intent to commit the criminal act of receiving stolen
property, which could be specific intent or purposely, general intent or knowingly,
recklessly, or negligently to either buy-receive or sell-dispose of stolen personal
property, depending on the jurisdiction
...
The defendant must also have the specific intent or
purposeful desire to deprive the victim of the property permanently in some
jurisdictions
...




The attendant circumstances for receiving stolen property are that the property belongs
to another and lack of victim consent
...




Receiving stolen property is graded as a felony-misdemeanor or a misdemeanor if the
stolen property is of low value and a felony if the stolen property is of high value
...
Check your answers using the answer key at the end of the chapter
...
saylor
...
org
484

1
...
In this example, Chuck shows
Jeremy a video he made of Jeremy reading a magazine instead of tuning up Chuck’s taxi
...
Has Chuck committed a crime in this scenario? If your
answer is yes, which crime?
2
...
Robertson, 531 S
...
2d 490 (2000)
...

What was the basis of the court’s reversal of conviction? The case is available at this
link: http://scholar
...
com/scholar_case?case=10266690205116389671&q=
robbery+%22purse+snatching%22&hl=en&as_sdt=2,5&as_ylo=2000
...
Read People v
...
W
...
In Pratt, the defendant was convicted of
receiving stolen property for taking and concealing his girlfriend’s vehicle
...
” Did the
Court of Appeals of Michigan uphold the defendant’s conviction? Why or why not? The
case is available at this
link:http://scholar
...
com/scholar_case?case=9260508991670862336&q=
actual+knowledge+%22receiving+stolen+property%22&hl=en&as_sdt=2,5&as_ylo=2000
...
S
...
§ 21-3428, accessed March 18, 2011,http://kansasstatutes
...
org/Chapter_21/Article_34/213428
...

[2] Ga
...
onecle
...
html
...
jud
...
gov/ji/criminal/part9/9
...
htm
...
Rev
...
§ 13-1804, http://law
...
com/arizona/criminal-code/13-1804
...

[5] Ga
...
onecle
...
html
...
CR 5-34, accessed March 12,
2011,http://www
...
net/online/oujis/oujisrvr
...


Saylor URL: http://www
...
org/books

Saylor
...
CR 5-34, accessed March 12,
2011,http://www
...
net/online/oujis/oujisrvr
...

[8] Oklahoma Uniform Jury Instructions No
...
okcca
...
jsp?oc=OUJI-CR%205-32
...
Rev
...
§ 164
...
onecle
...
075
...

[10] Ind
...
onecle
...
html
...
W
...
State, 513 So
...
google
...

[12] State v
...
2d 641 (1992), accessed March 18,
2011,http://scholar
...
com/scholar_case?case=2186457002998894202&q=
State+v
...

[13] Ala
...
onecle
...
html
...
Penal Code § 211, accessed March 19, 2011,http://codes
...
findlaw
...

[15] Jones v
...
2d 346 (1995), accessed March 19,
2011,http://scholar
...
com/scholar_case?case=11856873917512077763&q=
robbery+%22from+the+victim%27s+person%22&hl=en&as_sdt=2,5&as_ylo=2000
...
State, 652 So
...
google
...

[17] Metheny v
...
2d 1088 (2000), accessed March 19,
2011,http://scholar
...
com/scholar_case?case=10315203348655203542&q=
robbery+%22deprive+permanently%22&hl=en&as_sdt=2,5
...
Stat
...
§ 812
...
onecle
...
13
...

[19] Oklahoma Uniform Jury Instructions No
...
okcca
...
jsp?o=248
...
saylor
...
org
486

[20] Williams v
...
W
...
google
...

[21] Cal
...
onecle
...
html
...
Penal Code § 1192
...
onecle
...
7
...

[23] Tex
...
03, accessed March 12, 2011,http://law
...
com/texas/penal/29
...
00
...

[24] Ala
...
onecle
...
html
...
Penal Code § 496, accessed March 12, 2011,http://law
...
com/california/penal/496
...

[26] Fla
...
Ann
...
019, accessed March 12, 2011,http://law
...
com/florida/crimes/812
...
html
...
Gen
...
266 § 60, http://law
...
com/massachusetts/266/60
...

[28] Ga
...
onecle
...
html
...
Gen
...
266 § 60, accessed March 13, 2011,http://law
...
com/massachusetts/266/60
...

[30] Ala
...
onecle
...
html
...
Code § 13A-8-16, accessed March 13, 2011, http://law
...
com/alabama/criminal-code/13A-816
...

[32] Hawaii Criminal Jury Instructions No
...
00, 10
...
courts
...
hi
...
pdf
...
Code § 16-8-7(a), accessed March 12, 2011, http://law
...
com/georgia/16/16-8-7
...

[34] Connecticut Criminal Jury Instructions §§53a-119(8) and 53a-122 through 53a-125b, accessed March 13,
2011, http://www
...
ct
...
1-15
...

[35] Ala
...
onecle
...
html
...
Penal Code § 496, accessed March 13, 2011,http://law
...
com/california/penal/496
...

[37] Ga
...
onecle
...
html
...
3 Crimes That Invade or Damage Property
LEARNING OBJECTIVES

Saylor URL: http://www
...
org/books

Saylor
...


Define the criminal act element required for burglary
...
Define the criminal intent element required for burglary
...
Define the attendant circumstances required for burglary
...
Analyze burglary grading
...
Define the elements of criminal trespass, and analyze criminal trespass grading
...
Define the criminal act element required for arson
...
Define the criminal intent element required for arson
...
Define the attendant circumstances required for arson
...
Define the harm element required for arson
...
Analyze arson grading
...
Define the elements of criminal mischief, and analyze criminal mischief grading
...
At early
common law, burglary was the invasion of a man’s castle at nighttime, with a sinister purpose
...
Burglary has the elements of
criminal act, criminal intent, and attendant circumstances, as is explored in
...
Many jurisdictions
require breaking and entering into the area described in the burglary statute
...
1)
...


[2]

When criminal breaking is required, generally any physical force used to enter the burglarized area is
sufficient—even pushing open a closed door
...

be unauthorized,

[5]

while in others, it could be lawful
...
1(1))
...


[7]

Saylor URL: http://www
...
org/books

Saylor
...
The window is open, so once Jed
removes the screen, he places both hands on the sill, and begins to launch himself upward
...
Jed has
probably committed the criminal act element required for burglary in many jurisdictions
...
When Jed placed his hands on the windowsill,
his fingers intruded into the residence, which satisfies the entryrequirement
...


Burglary Intent
Depending on the jurisdiction, the criminal intent element required for burglary is typically the general
intent or knowingly to commit the criminal act, with thespecific intent or purposely to commit a
felony,

[8]

any crime,

[9]

or a felony, grand, or petty theft once inside the burglarized area
...
1(1))
...
”
Christian goes up to the front door of the house, shoves it open, steps inside the front hallway, and then
hurriedly dashes back outside
...
Although Christian committed the criminal act of breaking and entering,
Christian did not have the intent to commit a crime once inside
...
Criminal trespass is discussed in
...


[11]

However, modern jurisdictions have

eliminated the requirement that the property belong to another

[12]

and prohibit burglarizing property

owned by the defendant, such as a landlord burglarizing a tenant’s apartment
...
saylor
...
org
489

be locked
...


[16]

Structure or building generally includes a house, room, apartment, shop, barn, or even a tent
...
1(1))
...


[18]

Occupied means that the structure or building can be

used for business or for lodging at night and does not necessarily require the actual presence of a person
or victim when the criminal act takes place
...


[20]

Example of Burglary Attendant Circumstances
Susan breaks down a door and steps inside a building with the intent to commit arson, a felony, once
inside
...
If it is twelve noon, the attendant circumstance that the
criminal act takes place at nighttimeis lacking
...
m
...

Figure 11
...
saylor
...
org
490

Burglary Grading
Burglary is typically divided into degrees
...


[23]

[22]

and a strike in states that have three strikes

Factors that can elevate burglary grading are the use or possession of a weapon, the entry into

a residence, dwelling, or building where people are present, the commission of burglary at nighttime, or
the infliction of injury or death
...


[25]

The Model Penal Code grades burglary as a felony of the second

degree if perpetrated in the dwelling of another at night, or if the actor purposely, knowingly, or recklessly
inflicts or attempts to inflict bodily injury or is armed with explosives or a deadly weapon
...
1(2))
...
In addition, if the defendant actually commits the felony or crime after entry, the
defendant can be prosecuted for both burglary and the completed crime without violating the protection
against double jeopardy in the Fifth Amendment to the federal Constitution
...
1(3))
...
Typically, criminal
trespass is an unauthorized (attendant circumstance) entry or remaining (criminal act) into a
building, occupied structure, or place as to which notice against trespassing is given, owned by another
(attendant circumstance), with general intent or knowingly that the entry was unauthorized
(criminal intent)
...
2)
...


Saylor URL: http://www
...
org/books

[27]

The Model

Saylor
...
2)
...
Many jurisdictions punish arson as a high-level felony
that could merit a punishment of life in prison and mandatory registration requirements similar to
serious sex offenses
...
The elements of arson at common law were the malicious or intentional burning of a dwelling
owned by another
...

Arson is a crime that has the elements of criminal act, criminal intent, attendant circumstances,
causation, and harm, as is explored in
...

vehicles
...


[29]

This could include buildings, structures, land, and

Some states define the criminal act element as “damaging” the specified property by fire or

[31]

The Model Penal Code describes the criminal act element as starting a fire or causing an

explosion (Model Penal Code § 220
...
The type or value of the property the defendant burns or
damages can enhance grading
...


Example of Arson Act
Clark and Manny are bored and decide to light a fire in the woods near their houses
...
Clark and Manny give
up and walk home
...
Although a large destructive fire was not set by Clark and Manny, the two did
burn or damage real property and start a fire, which satisfies the criminal act requirement in most
jurisdictions and under the Model Penal Code
...
saylor
...
org
492

Arson Intent
The criminal intent element required for arson in many jurisdictions is the general
intent or knowingly to commit the criminal act
...


[33]

The Model Penal Code requires

starting a fire or causing an explosion “with the purpose of destroying a building or occupied structure of
another; or destroying or damaging any property…to collect insurance for such loss” (Model Penal Code
§ 220
...


Example of Arson Intent
Review the example with Clark and Manny in
...
After a few hours, a large and powerful fire
starts and burns thousands of acres in the forest
...
Although Clark and Manny did not necessarily want to
burn thousands of acres of forest land, they did intentionally or knowingly start a fire in the forest,
which is all that many modern arson statutes require
...


Arson Attendant Circumstances
In most jurisdictions, arson must burn a specific type of property
...
Thus first-degree arson may focus on arson of a
dwelling,

[34]

while second-degree arson focuses on arson of other property
...
However, the defendant must generally burn
his or her property with the specific intent or purposely to defraudfor the burning to constitute
arson
...
1(b))
...
Tim piles all the photographs,
gifts, and clothing items that are connected to his relationship with his ex into his fireplace and burns

Saylor URL: http://www
...
org/books

Saylor
...
In this scenario, Tim probably does not have the criminal intent element required for arson in most
jurisdictions
...
Thus
Tim must burn the property with the specific intent or purposely to defraud—most likely an insurance
carrier
...


Arson Causation
The criminal act must be the factual and legal cause of arson harm, which defines
...
However, there must be a causation analysis in every arson case because
arson is a crime that requires a bad result or harm
...


Example of Arson Causation
Review the example with Clark and Manny in
...
Hours later, a spark from their fire
ignites, burning thousands of acres
...
Even though the grass was damp and difficult to burn, a trier of fact could find that
it is reasonably foreseeable when lighting a fire in the forest that the fire could turn into a massive and
destructive blaze
...


Arson Harm
The harm element required for arson is burning, charring, or damage to the property specified in the
arson statute
...


[38]

[37]

and in the most extreme cases, even

The Model Penal Code only requires starting a

fire or causing an explosion with the appropriate criminal intent, regardless of whether damage to real or
personal property ensues (Model Penal Code § 220
...
Some states follow the Model Penal Code
approach
...
In this example, Clark and Manny started a fire in the
woods that burned a small circle of dead grass
...
saylor
...
org
494

for arson in most jurisdictions
...
Thus Clark
and Manny may be subject to a prosecution for and conviction of this offense in most jurisdictions
...
9 Diagram of Defenses to Arson

Arson Grading
Arson is typically divided into degrees,

[40]

or simple and aggravated
...


[44]

[41]

[42]

Factors that can

bodily injury or death,

[43]

extensive

As stated previously, arson is a serious felony

that can result in a sentence of life in prison and mandatory registration requirements similar to serious
sex offenses
...

degree arson as a felony
...
1)
...
Although criminal mischief may be a felony in many jurisdictions, it
is generally a less serious felony than arson, either because the defendant inflicts damage to property in a
Saylor URL: http://www
...
org/books

Saylor
...
The criminal act element required for
criminal mischief is damaging,

[49]

destroying, interfering with,

[50]

or tampering with

[51]

property
...
The criminal intent could be specific intent or purposely, general
intent or knowingly, reckless, ornegligent
...


[53]

Theharm element

required for criminal mischief is damage, destruction, or interference to property by fire, explosive, flood,
or some other method, or interference with electricity, water, oil or gas,
deception such as causing the victim to purchase a worthless product
...


[56]

Factors that could elevate grading of criminal mischief are the extent of the property

damage and the severity of the defendant’s criminal intent
...
The Model Penal Code grades criminal mischief as a felony of the
third degree, misdemeanor, petty misdemeanor, or violation, depending on the extent of the damage or
the criminal intent (Model Penal Code § 220
...


Figure 11
...
saylor
...
org
496

KEY TAKEAWAYS


The criminal act element required for burglary is breaking and entering, just entering, or
remaining
...




Burglary generally includes the attendant circumstances that the area entered is a
structure, building, or vehicle belonging to another, or an occupied building or structure,

Saylor URL: http://www
...
org/books

Saylor
...
Modern jurisdictions have eliminated the requirement that the property
belong to another and prohibit the defendant from burglarizing his or her own property
...



Burglary is typically graded as a felony that is divided into degrees
...




Typically, criminal trespass is an unauthorized (attendant circumstance) entry or
remaining (criminal act) into a building, occupied structure, or place as to which notice
against trespassing is given, owned by another (attendant circumstance) with general
intent or knowingly that the entry was unauthorized (criminal intent)
...




The criminal act element required for arson is starting a fire, burning, or damaging with
fire or explosives specified real or personal property
...




Arson statutes can specify the attendant circumstance that the defendant burns a
specific type of property, such as a dwelling or other real or personal property
...




The harm element required for arson is burning, charring, damage, or, in the most
extreme cases, smoke damage
...
First-degree arson is
often a strike in jurisdictions that have three strikes statutes and a predicate felony for
first-degree felony murder
...


Saylor URL: http://www
...
org/books

Saylor
...

Although criminal mischief may be a felony in many jurisdictions, it is generally a less
serious felony than arson and in some jurisdictions it is graded as a gross misdemeanor
or misdemeanor
...
Check your answers using the answer key at the end of the chapter
...
Why is burglary of a dwelling at nighttime generally graded higher than other
burglaries?
2
...
Florida, No
...
Court of Appeals, 2009)
...
The defendant claimed he
broke into a residence because he was being chased and feared for his safety
...
google
...

3
...
V
...
, No
...
: Court of Appeals, 2008)
...
V
...
, the Court of Appeals of Texas dismissed a minor’s adjudication for arson when
he started a fire in the boy’s restroom of a middle school
...
google
...

LAW AND ETHICS
WikiLeaks: Should Exposure of Information Be Criminal?
Julian Assange, famous for his computer hacking skills, is the editor in chief of WikiLeaks, a whistleblower
website
...
saylor
...
org
499

classifiedconfidential and secret
...


[59]

Although

WikiLeaks did not actually “leak” classified material (some of it was allegedly passed to WikiLeaks by a lowlevel US Army intelligence analyst), the US Department of Justice has launched a criminal investigation
regarding the release, and US prosecutors are reportedly considering charges against Assange
...
Do you think it is ethical to expose or publish “leaked” confidential and secret
government information?
2
...


[1] Mass
...
Laws ch
...
justia
...
html
...
Stat
...
§ 810
...
justia
...
html
...
Hallums, 61 Mass
...
Ct
...
google
...

[4] People v
...
App
...
google
...

[5] State v
...
3d 582 (2000), accessed March 20,
2011,http://scholar
...
com/scholar_case?case=14296917791490578337&q=
burglary+%22shoplifting%22&hl=en&as_sdt=2,5&as_ylo=2000
...
Nunley, 168 Cal
...
3d 225 (1985), accessed March 20,
2011,http://scholar
...
com/scholar_case?case=13700546275600703774&q=
burglary+%22shoplifting%22&hl=en&as_sdt=2,5&as_ylo=2000
...
Allen, 110 P
...
google
...

[8] Mass
...
Laws ch
...
onecle
...
html
...
saylor
...
org
500

[9] Connecticut Criminal Jury Instructions §53a-102, accessed March 20,
2011,http://www
...
ct
...
2-3
...

[10] Cal
...
onecle
...
html
...
CR 5-13, accessed March 20,
2011,http://www
...
net/online/oujis/oujisrvr
...

[12] Cal
...
onecle
...
html
...
1, accessed March 20, 2011, http://coolice
...
state
...
us/coolice/default
...

[14] Connecticut Criminal Jury Instructions §53a-102, accessed March 20,
2011,http://www
...
ct
...
2-3
...

[15] Cal
...
onecle
...
html
...
Gen
...
266 § 15, accessed March 20, 2011,http://law
...
com/massachusetts/266/15
...

[17] Cal
...
onecle
...
html
...
jud
...
gov/ji/criminal/part9/9
...
htm
...
12, http://search
...
state
...
us/nxt/gateway
...
htm
...
Reavis, 700 S
...
2d 33 (2010), accessed March 20,
2011,http://scholar
...
com/scholar_case?case=10817450688281022337&q=
burglary+%22definition+of+nighttime%22&hl=en&as_sdt=2,5&as_ylo=2000
...
3, 713
...
6A, accessed March 20, 2011,http://coolice
...
state
...
us/coolice/default
...

[22] Cal
...
onecle
...
html
...
Penal Code § 1192
...
onecle
...
7
...

[24] Mass
...
Laws ch
...
onecle
...
html
...
Code § 13A-7-7, accessed March 20, 2011, http://law
...
com/alabama/criminal-code/13A-7-7
...

[26] 18 Pa
...
S
...
onecle
...
035
...
000
...

[27] 18 Pa
...
S
...
onecle
...
035
...
000
...


Saylor URL: http://www
...
org/books

Saylor
...
onecle
...
html
...
Penal Code § 451, accessed March 21, 2011,http://law
...
com/california/penal/451
...

[30] Tex
...
02, accessed March 22, 2011,http://law
...
com/texas/penal/28
...
00
...

[31] Ga
...
16 § 16-7-60, accessed March 21, 2011,http://law
...
com/georgia/16/16-7-60
...

[32] Ga
...
16 § 16-7-60, http://law
...
com/georgia/16/16-7-60
...

[33] People v
...
4th 76 (2001), accessed March 22,
2011,http://scholar
...
com/scholar_case?case=959832986872752180&q=
%22mens+rea+for+arson%22&hl=en&as_sdt=2,5
...
Stat
...
tit
...
justia
...

[35] Vt
...
Ann
...
13 § 503, accessed March 22, 2011,http://law
...
com/codes/vermont/2009/title13/chapter-11/503
...
Code tit
...
onecle
...
html
...
1515, accessed March 22,
2011,http://www
...
com/criminal/docs/calcrim/1500/1515
...

[38] Ursulita v
...
E
...
google
...
+State&hl=en&as_sdt=2,5&as_ylo=2000
...
Penal Code § 28
...
onecle
...
02
...
html
...
Code tit
...
onecle
...
html
...
Penal Code § 451
...
onecle
...
5
...

[42] Ga
...
16 § 16-7-60, accessed March 21, 2011,http://law
...
com/georgia/16/16-7-60
...

[43] Connecticut Criminal Jury Instructions § 53a-111, accessed March 22,
2011,http://www
...
ct
...
3-1
...

[44] Cal
...
5, accessed March 21, 2011,http://law
...
com/california/penal/451
...
html
...
onecle
...
html
...
Penal Code § 1192
...
onecle
...
7
...

[47] Cal
...
onecle
...
html (accessed July
15, 2010)
...
saylor
...
org
502

[48] Cal
...
onecle
...
html
...
Code § 13A-7-21, accessed March 24, 2011, http://law
...
com/alabama/criminal-code/13A-721
...

[50] Or
...
Stat
...
365, accessed March 24, 2011, http://law
...
com/oregon/164-offenses-againstproperty/164
...
html
...
§ 11
...
480, accessed March 24, 2011,http://law
...
com/codes/alaska/2009/title-11/chapter11-46/article-04/sec-11-46-480
...
C
...
§ 3304, accessed March 24, 2011, http://law
...
com/pennsylvania/crimes-andoffenses/00
...
004
...
html
...
§ 11
...
475, accessed March 24, 2011,http://law
...
com/codes/alaska/2009/title-11/chapter11-46/article-04/sec-11-46-475
...
§ 11
...
475, accessed March 24, 2011,http://law
...
com/codes/alaska/2009/title-11/chapter11-46/article-04/sec-11-46-475
...
C
...
§ 3304, accessed March 24, 2011, http://law
...
com/pennsylvania/crimes-andoffenses/00
...
004
...
html
...
C
...
§ 3304, accessed March 24, 2011, http://law
...
com/pennsylvania/crimes-andoffenses/00
...
004
...
html
...
C
...
§ 3304, accessed March 24, 2011, http://law
...
com/pennsylvania/crimes-andoffenses/00
...
004
...
html
...
newyorker
...

[59] Charlie Savage, “U
...
Prosecutors Study WikiLeaks Prosecution,” New York Times website, accessed March 29,
2011, http://www
...
com/2010/12/08/world/08leak
...

[60] Charlie Savage, “U
...
Prosecutors Study WikiLeaks Prosecution,” New York Times website, accessed March 29,
2011, http://www
...
com/2010/12/08/world/08leak
...


11
...
Modern jurisdictions criminalize several forms of theft under consolidated theft statutes that

Saylor URL: http://www
...
org/books

Saylor
...
Larceny under a consolidated theft statute in
many jurisdictions is the physical taking or gaining possession of a victim’s personal property by control
and asportation, or a false representation of fact, with the intent to keep the property
...
False pretenses under a consolidated theft statute is the permanent transfer of ownership of
real or personal property or services from the victim to the defendant, based on a false representation of
fact
...
Federal mail fraud, a felony, is the knowing use of the mail to
perpetrate a scheme to defraud
...
Extortion is
typically graded as a felony
...
Robbery is typically graded as a serious felony
...
Receiving stolen property is typically graded as a felony-misdemeanor or a
misdemeanor if the property is of low value and a felony if the property is of significant value
...
In some jurisdictions, the defendant
can burglarize his or her own property
...
Criminal trespass
is a knowing unauthorized entry onto the property of another
...
Arson is knowingly burning or damaging by fire property described in the arson
statute
...
Criminal mischief is damaging, destroying, or
interfering with property with specific intent or purposely, general intent or knowingly, recklessly, or
negligently, depending on the jurisdiction and the degree of the offense
...


YOU BE THE LEGAL TEXTBOOK AUTHOR

Saylor URL: http://www
...
org/books

Saylor
...
Check your answers
using the answer key at the end of the chapter
...
Offenses against computer users: Fla
...
Ann
...
06
...
onecle
...
06
...
Identify the criminal act (seven
possible), criminal intent, attendant circumstance, andharm
...
Identity theft: 18 Pa
...
S
...
The statute is available at this
link:http://law
...
com/pennsylvania/crimes-and-offenses/00
...
020
...
html
...
How is this crime graded?
3
...
Y
...
30
...
onecle
...
30_156
...
html
...
How is this crime graded?

Cases of Interest


People v
...
App
...
google
...




State v
...
29, 641 (NM: 2011), discusses the difference between a
debit card and credit card for
theft:http://scholar
...
com/scholar_case?case=8674118418557512209&q=State+v
+Castillo+NM&hl=en&as_sdt=2,5&as_ylo=2010
...
Nowack, 614 N
...
2d 78 (2000), discusses the criminal intent element
required for
arson: http://scholar
...
com/scholar_case?case=3668258956679541189&q=
arson+%22specific+intent+crime%22&hl=en&as_sdt=2,5&as_ylo=2000
...
ssrn
...
cfm?abstract_id=1661462

Saylor URL: http://www
...
org/books

Saylor
...
huffingtonpost
...
html



Celebrity burglaries: http://www
...
com/generaltopics/?p=50094



Wildland arson: http://www
...
com/content/h4w5015373m2v200

Websites of Interest


Information on arson: http://www
...
gov/App/Topics/Topic
...
justice
...
htm



US DOJ identity theft
information:http://www
...
gov/criminal/fraud/websites/idtheft
...
ojp
...
gov/index
...
ojp
...
gov/index
...
Linda has committed larceny because she took personal property belonging to another
without consent and with what appears to be the intent to keep it permanently
...
A bra is not a high-value item (even in an expensive
department store), so Linda’s larceny is probably petty, second-, or third-degree theft
under a consolidated theft statute
...
Ellen has committed larceny because she took personal property belonging to another
without consent and with what appears to be the intent to keep it permanently
...
When she slid it
across the counter, this was sufficientasportation of the property because asportation
for larceny can generally be any distance—no matter how slight
...

3
...
The court also held that the
prosecution failed to prove a relationship of trust andconfidence between the
Saylor URL: http://www
...
org/books

Saylor
...

4
...
The court held that the defendant actually committed
attempted larceny by trick, not false pretenses, because he was directed to purchase
licensing agreements with the money, which put him inpossession of it rather
than ownership
...
The US Court of Appeals for the Fifth Circuit reversed the defendant’s conviction
...
However, because all the mailings
involved the defendant’s son, who was acquitted of the arson and therefore not involved
in a scheme to defraud the insurance company, the defendant’s mail fraud conviction
had no basis
...
Chuck has committed the crime of attempted extortion
...
Thus theharm element of extortion is
lacking, and Chuck’s conduct is only attempted extortion
...
The Court of Appeals of North Carolina reversed the defendant’s robbery conviction
because he snatched the purse, using only the force required to take it from the victim’s
possession
...

3
...
Although the court
conceded that a theft by larceny requires the intent to permanentlydeprive the owner of
personal property, the court held that the term “stolen” in the receiving stolen property
statute encompasses more than larceny theft, and thus it includes any taking of
personal property without permission of the owner
...
saylor
...
org
507

1
...
Burglary atnighttime enhances the
probability that the dwelling owners will be home and makes it more difficult to identify
the defendant
...

2
...
Although a neighbor to the burglarized residence
testified that the defendant rang her doorbell and asked to come in while looking around
in a scared manner, and a guest at a party testified that the defendant was slapped by an
individual claiming the defendant owed him money, the court held that this evidence
did not establish the defendant’s reasonable belief that he was at risk for immediate
serious bodily injury
...
The Court of Appeals of Texas dismissed the minor’s judgment of adjudication because
the middle school was not located in “the incorporated city limits,” as was alleged in the
State’s petition for adjudication
...


Whether it is ethical to publish classified information depends on the contentof the
published material, and requires a balancing of the public’s right to know and the safety
risk posed by the publication
...


2
...
Without evidence that
WikiLeaks participated or assisted the government informant, a prosecution of
WikiLeaks is a prosecution for speech, and this requires a compelling government
interest and a narrowly tailored statute
...
An
Saylor URL: http://www
...
org/books

Saylor
...


Answers to You Be the Legal Textbook Author
1
...
Criminal intent: general
intent or knowingly
...
Harm:
disruption, damage, destruction, or use of the computer to commit a scheme to
defraud
...
Also provides a civil action
for damages
...
Criminal act: possess or use the identifying information of another person
...
Attendant
circumstance: lack of victim consent
...
Grading: a felony or misdemeanor,
depending on the value of property obtained, the prior record of the defendant, and
whether the unlawful purpose is a conspiracy or dependent abuse
...
Criminal act: copy, reproduce, or duplicate any computer data or program
...
Attendant circumstance: with no right to do so
...
Grading: felony
...
In the public nuisance
context, the community’s right to security and protection must be reconciled with the individual’s right to expressive

Saylor URL: http://www
...
org/books

Saylor
...
Reconciliation begins with the acknowledgment that the interests of the community are
not invariably less important than the freedom of individuals
...
Acuna, cited in Section 12 "Civil Responses to Gang Activity"

12
...


Define the criminal act element required for disorderly conduct
...
Define the criminal intent element required for disorderly conduct
...
Define the attendant circumstance required for disorderly conduct
...
Identify potential constitutional challenges to disorderly conduct statutes
...
Analyze disorderly conduct grading
...
Identify potential constitutional challenges to vagrancy statutes
...
Identify potential constitutional challenges to loitering statutes
...
Define the elements of loitering, and analyze loitering grading
...
Compare sit-lie laws to loitering statutes
...
Because quality-of-life crimes are often based onmoral or value judgments, these offenses tend to target the
poor and downtrodden
...
This creates a conflict between legislators trying to ensure peace and tranquility for citizens and
judges upholding the many individual protections included in the Bill of Rights
...
Upcoming sections analyze
crimes involving group activity, such as unlawful assembly and riot, along with the ever-growing problem of criminal
gangs, and novel criminal and civil responses
...


Disorderly Conduct
Disorderly conduct, also called disturbing the peace, criminalizes conduct that negatively impacts the
quality of life for citizens in any given city, county, or state
...
saylor
...
org
510

live, work, and travel in safety and comfort
...


Disorderly Conduct Act
Three criminal acts generally are identified in any disorderly conduct statute
...


[1]

The Model Penal Code defines disorderly conduct as engaging in fighting or

threatening or violent tumultuous behavior, making unreasonable noise or an offensively course
utterance, gesture, or display, addressing abusive language to any person present, or creating a hazardous
or physically offensive condition by an act that serves no legitimate purpose (Model Penal Code § 250
...

When the criminal act is a loud and unreasonable noise, the quality of the noise is judged in
the setting where the noise occurred
...


[2]

The term “hazardous condition”

generally refers to a situation that is dangerous and poses a risk of injury to others in the vicinity of the
defendant’s conduct
...
Both are inebriated
...
David stumbles and trips Daniel, who falls heavily to the sidewalk
...
David yells back, “Bring it on!” David pushes
Daniel, he pushes back, and they begin punching and kicking
...
When David and Daniel began singing at
three in the morning on a quiet street, they made a loud and unreasonable noise
...
When they engaged in a fistfight, they
committed fighting, or created a hazardous condition
...


Disorderly Conduct Intent
The criminal intent element required for disorderly conduct in many jurisdictions is thespecific
intent or purposely to cause public inconvenience, annoyance, or alarm, or the reckless intent to

Saylor URL: http://www
...
org/books

Saylor
...


[4]

The Model Penal Code has the same criminal intent requirement (Model Penal

Code § 250
...


Example of Disorderly Conduct Intent
Review the example given in with David and Daniel
...
Although David and Daniel are inebriated, recall from that intoxication is not generally a
defense to a reckless intent crime
...


Disorderly Conduct Attendant Circumstance
In many jurisdictions, disorderly conduct requires the attendant circumstance that the conduct occur
in a public place
...
The Model Penal Code defines public as “affecting or likely to
affect persons in a place to which the public or a substantial group has access…highways, transport
facilities, schools, prisons, apartment houses, places of business or amusement, or any neighborhood”
(Model Penal Code § 250
...


Example of Disorderly Conduct Attendant Circumstance
Review the example in with David and Daniel
...
Thus in jurisdictions that require the disorderly conduct attendant
circumstance of a public place, David and Daniel may be subject to prosecution for and conviction of this
offense
...


Potential Constitutional Challenges to Disorderly Conduct Statutes
Because disorderly conduct statutes often criminalize obscene gestures and words,threats,
and fighting words, they are subject to constitutional challenges under the First and Fourteenth
Amendments
...
As discusses in detail, it

Saylor URL: http://www
...
org/books

Saylor
...
Nonetheless, any statute
criminalizing speech or expression is subject to strict scrutiny, must be narrowly drafted, and supported
by a compelling government interest
...


[6]

Example of a Disorderly Conduct Statute That Is Unconstitutional
A state legislature enacts a disorderly conduct statute that prohibits “making rude and annoying
comments to another
...
The words rude and annoying are ambiguous, which could lead to uneven application by
law enforcement and a failure to provide adequate notice to the public of what is criminal
...
In addition, rude and annoying comments are not
necessarily fighting words, true threats, or obscenity, so they could be protected under the First
Amendment
...
For a fuller and more detailed description of
void for vagueness and overbreadth constitutional challenges, please refer to
...
1 Potential Constitutional Challenges to Disorderly Conduct Statutes

Saylor URL: http://www
...
org/books

Saylor
...


[7]

The Model Penal Code grades disorderly conduct as a petty misdemeanor if the

defendant’s purpose is to cause substantial harm or serious inconvenience or if the defendant persists
with his or her conduct after a warning
...
2(2))
...
Thus virtually every jurisdiction
has statutes punishing either vagrancy or loitering
...

Historically, vagrancy statutes were broadly drafted to allow law enforcement considerable discretion in
arresting the unemployed, gamblers, drug addicts, alcoholics, and those who frequented houses of
prostitution or other locations of ill repute
...

In 1972, the US Supreme Court struck down a Florida vagrancy statute in Papachristou v
...
S
...
The Court held that the statute, which prohibited night walking, living
off one’s spouse, and frequenting bars or liquor stores was void for vagueness and violated the due process
clause in the Fourteenth Amendment
...
The Model
Penal Code prohibits public drunkenness and drug incapacitation (Model Penal Code § 250
...
6)
...
”

[9]

or without the

[10]

In a jurisdiction that criminalizes loitering, the criminal act element is typically loitering, wandering, or
remaining, with the specific intent or purposely to gamble, beg, or engage in
prostitution
...
saylor
...
org
514

such as a school or transportation facility
...


[13]

The Model Penal Code prohibits loitering or prowling in a place, at a

time, or in a manner not usual for law-abiding individuals under circumstances that warrant alarm for the
safety of persons or property in the vicinity (Model Penal Code § 250
...
Loitering is generally graded as
a misdemeanor

[14]

or a violation
...
6)
...
2 Crack the Code

Saylor URL: http://www
...
org/books

Saylor
...
Panhandling statutes essentially criminalize speech,
so they must be narrowly tailored to avoid successful constitutional challenges based on the First Amendment, void
for vagueness, or overbreadth
...


Sit-Lie Laws
One modern statutory approach to preventing homeless individuals and transients from congregating in
cities and affecting the quality of life or the prosperity of businesses and tourism are sit-lie laws
...
If precisely drafted,
sit-lie laws could resemble constitutional loitering statutes, substituting sitting or lying down for the
criminal act of loitering, wandering, or remaining
...
saylor
...
org
516

constitutional challenges as vagrancy and loitering statutes because they target the impoverished, addicts,
and the unemployed
...
m
...
m
...
The
ordinance was attacked and ultimately upheld by the US Court of Appeals for the Ninth Circuit in
1996
...
This
ordinance was stricken by the same court as unconstitutional cruel and unusual
punishment pursuant to the Eighth Amendment
...
Portland followed Los Angeles with a sidewalk-obstruction
ordinance, requiring individuals to keep their personal belongings within two feet of their bodies
...


[19]

The most recent enactment of a sit-lie ordinance took place in San Francisco in 2010
...
m
...
m
...


[20]

The first offense is an infraction, and the second offense is a misdemeanor
...

Figure 12
...
saylor
...
org
517

Table 12
...
saylor
...
org
518

Crime

Criminal Act

Criminal Intent

Attendant Circumstance

*Exceptions for medical emergencies, people who have disabilities, protests

KEY TAKEAWAYS


The criminal act element required for disorderly conduct is either when the defendant
(1) makes a loud and unreasonable noise, obscene utterance, or gesture, (2) engages in
fighting or threatening, or states fighting words, or (3) creates a hazardous condition by
an act that does not serve a legitimate purpose
...




The disorderly conduct attendant circumstance is that the conduct occurs in a public
place
...




Disorderly conduct is typically graded as a misdemeanor
...




Loitering statutes are subject to constitutional challenges if they target the unemployed
or are void for vagueness
...
An attendant
circumstance could specify the location the conduct takes place, such as a school or
transportation facility
...
Loitering is typically graded as a misdemeanor
or a violation
...

EXERCISES

Saylor URL: http://www
...
org/books

Saylor
...
Check your answers using the answer key at the end of the chapter
...
A city enacts an ordinance that prohibits standing or remaining in a crosswalk for an
extended period with a sign
...
Read State v
...
2d 453 (2006)
...
google
...

3
...
Hoffstead, 905 N
...
S
...
Why did the New York Supreme
Court overturn the defendant’s conviction for loitering in this case? The case is available
at this link: http://scholar
...
com/scholar_case?case=16147172189959232373&q=
People+v
...


[1] 18 Pa
...
S
...
onecle
...
055
...
000
...

[2] Haw
...
Stat
...
capitol
...
gov/hrscurrent/vol14_Ch07010853/HRS0711/HRS_0711-1101
...

[3] Wolfe v
...
3d 1252 (2001), accessed April 2,
2011,http://scholar
...
com/scholar_case?case=8611678948602739716&q=
disorderly+conduct+%22hazardous+condition%22&hl=en&as_sdt=2,5&as_ylo=2000
...
Code § 13A-11-7, accessed April 3, 2011, http://law
...
com/alabama/criminal-code/13A-11-7
...

[5] Tex
...
01, accessed April 2, 2011,http://law
...
com/texas/penal/42
...
00
...

[6] Colten v
...
S
...
google
...
+Kentucky&hl=en&as_sdt=2,5
...
C
...
Stat
...
onecle
...
html
...
saylor
...
org
520

[8] Edwards v
...
S
...
google
...

[9] City of Chicago v
...
S
...
justia
...
html
...
Lawson, accessed April 5, 2011, 461 U
...
352 (1983),http://supreme
...
com/us/461/352
...
Code § 13A-11-9, accessed April 5, 2011, http://law
...
com/alabama/criminal-code/13A-11-9
...

[12] Ariz
...
Stat
...
onecle
...
html
...
Code § 13A-11-9, accessed April 5, 2011, http://law
...
com/alabama/criminal-code/13A-11-9
...

[14] Ariz
...
Stat
...
onecle
...
html
...
Code § 13A-11-9, accessed April 5, 2011, http://law
...
com/alabama/criminal-code/13A-11-9
...

[16] Gresham v
...
3d 899 (2000), accessed April 5,
2011,http://scholar
...
com/scholar_case?case=12046859312956994237&q=
%22Gresham+v
...

[17] Heather Knight, “San Francisco Looks to Seattle: Did Sidewalk Sitting Ban Help?” seattlepi
...
seattlepi
...
php
...
City of Los Angeles, 444 F
...
google
...
+City+of+Los+Angeles+2005&hl=en&as_sdt=2,5&as_ylo=2004
...
portlandmercury
...

[20] San Francisco Police Code § 16
...
sfgov2
...
pdf
...
8, accessed April 5,
2011,http://www
...
org/ftp/uploadedfiles/elections/candidates/Nov2010_CivilSidewalks
...


12
...


Define the elements of unlawful assembly and failure to disperse
...
saylor
...
org
521

2
...

3
...

4
...

5
...

6
...

7
...

8
...

Group conduct, if criminal, can enhance the potential for violence and injury and is punishable as the crimes of
unlawful assembly, riot, or criminal gangs
...
In addition, the problem of criminal gangs has proven to be so stubborn that it has
produced some novel criminal and civilresponses
...


Unlawful Assembly and Failure to Disperse
Unlawful assembly can be the predicate offense to riot, which is discussed shortly
...


[4]

Some

jurisdictions and the Model Penal Code punish the failure to disperse (criminal act) when a peace officer
or public servant orders a group participating in disorderly conduct likely to cause substantial harm,
serious annoyance, or alarm to do so

[5]

(Model Penal Code § 250
...
The criminal intent element for

failure to disperse is general intent orknowingly

[6]

(Model Penal Code § 250
...


Jurisdictions vary as to the attendant circumstance for unlawful assembly and failure to disperse,
which is the size of the group
...


[9]

The Model

Penal Code requires three or more persons (Model Penal Code § 250
...


Example of Unlawful Assembly and Failure to Disperse
Six neighbors are sitting on their porches, peacefully chatting
...
Annoyed, Buck tells the group, “Let’s go show those

Saylor URL: http://www
...
org/books

Saylor
...
Buck begins chanting, “How would you like to be aborted?” and the other neighbors join in
...
Buck
and his neighbors form a ring around the group and move in closer, almost touching the individuals and
their signs
...
” Buck spits at the ranger’s feet and starts up the chant again
...

In this scenario, Buck and his neighbors have most likely committed unlawful assembly and failure to
disperse in many jurisdictions
...
When Buck and his
neighbors go to the park in a group, they are assembling
...
In addition, the increasing decibel of the chanting and
the neighbors’ close proximity to the pro-choice group indicates an intent to intimidate, threaten, and
possibly commit an unlawful act such as false imprisonment, assault, battery, or riot
...
Buck’s response in spitting at the ranger’s feet and starting up the chant again is
probably a failure to disperse committed with general intent or knowingly
...


Potential Constitutional Challenges to Unlawful Assembly and Failure to Disperse Statutes
The offenses of unlawful assembly and failure to disperse target conduct that, ifpeaceful, is protected by
the First Amendment
...


Saylor URL: http://www
...
org/books

Saylor
...
4 Potential Constitutional Challenges to Unlawful Assembly and Failure to Disperse

Statutes

Criminal Gangs
Many jurisdictions have statutes, both criminal and civil, that address the ongoing dilemma of criminal gangs
...
Criminal gangs can create a
stigma that attaches to a location, affecting property values and residents’ attitudes about the effectiveness of law

Saylor URL: http://www
...
org/books

Saylor
...
Commentators and legislators differ as to the most effective remedies
for the gang problem, leading to a plethora of diverse statutory responses
...


Criminal Gang Definitions
It is important for a jurisdiction’s gang statute to
define criminal gang andcriminal gang member precisely, to avoid constitutional challenges under the
First Amendment or void for vagueness and overbreadth
...

Federal law defines a criminal street gang as an ongoing group, club, organization, or association
of five or more that has as one of its primary purposes the commission of specific criminal offenses or
activities that affect interstate or foreign commerce
...


[23]

One representative state

statutory definition of criminal gang is a group of three or more persons who have in common a name,
identifying sign, symbol, tattoo, style of dress, or use of hand signs and who have committed or attempted
to commit specified crimes for the benefit of the group
...


[25]

Example of Criminal Gang Definitions
The North Side Boys are a group of fifty-five members who have a special tattoo, wear the colors black
and white daily, and pride themselves on their illegal controlled substances distribution
...
Mike participates in a special initiation process that includes selling a
specified quantity of an illegal controlled substance in a certain location over a period of two weeks
...
saylor
...
org
525

activities
...
The North Side Boys has an identifiable tattoo
and style of dress and furthers a criminal activity, which is the distribution of illegal controlled
substances
...
Thus the North Side Boys and Mike fit the definition of criminal gang and gang
member in many jurisdictions, and Mike may be subject to prosecution for and conviction of criminal
gang activity if he commits crimes at the direction of or in furtherance of the gang, as is analyzed in
...


[28]

[26]

enhance the penalty for a crime when it is committed

If a state enacts agang participation statute, the criminal

act element is generally described as actively participating in a criminal gang and promoting, furthering,
or assisting in any felony, with the general intent or knowingly that members of the gang engage in a
pattern of criminal gang activity
...


[30]

[29]

Gang participation is generally graded as a

Gang enhancement statutes enhance the defendant’s sentence for actually committing a

misdemeanor or felony with the specific intent or purposelyto benefit, promote, or further the
interests of the criminal gang
...


[31]

Some jurisdictions only provide gang enhancement for the commission

[32]

Example of Criminal Gang Activity
Review the example with Mike and the North Side Boys given in
...
If the
state where Mike sells illegal controlled substances has a gang participation statute and grades the crime
of sale of illegal controlled substances as a felony, Mike could be prosecuted for and convicted of this
crime
...
If the state also has a gang enhancement statute, Mike could have his sentence for sale of illegal
controlled substances enhanced because he committed the sale of illegal controlled substances in
furtherance of the criminal gang
...
saylor
...
org
526

illegal controlled substances than an individual defendant who sells illegal controlled substances on his or
her own, rather than at the direction or in furtherance of a criminal gang
...
5 Diagram of Typical Modern Gang Statutes

Civil Responses to Gang Activity
As stated previously, the problem of criminal gangs is challenging and has proven resistant to criminal remedies
...

Civil gang control statutes generally provide for damages, often enhanced, for coercion, intimidation, threats, or other
harm caused by a gang or gang member
...


[34]

Figure 12
...
saylor
...
org
527

Civil gang injunctions (CGIs) are precisely drafted orders prohibiting gang members from associating with other gang
members or entering certain areas known for gang activity
...


[36]

[35]

A state agency or an individual resident can typically

The basis for a CGI motion is the tort of public nuisance, which requires proof

that the gang is disturbing the enjoyment of life and property for those living in the community
...

of contempt, resulting in fines or incarceration
...
saylor
...
org
528

Example of Civil Responses to Gang Activity
Review the example with Mike and the North Side Boys in
...
They also are
subject to gang enhancements for any felony committed at the direction or in furtherance of the North
Side Boys
...
They also are subject to an injunction
constraining their ability to meet, associate, wear black and white, flash gang hand signs, or loiter in
certain areas
...


Potential Constitutional Challenges to Gang Statutes
Gang activity and gang association require assembly, which, if peaceful, is protected by the First Amendment
...
CGIs have the same constitutional concerns as criminal gang activity statutes
because their violation can lead to a criminal prosecution for contempt
...
Morales, 527 U
...
41 (1999), the US Supreme Court struck down Chicago’s Gang
Congregation Ordinance as void for vagueness
...
” The term loiteringwas defined as remaining in any one place with no apparent purpose
...
The Court held that the ordinance did not give the public notice of what was criminal, as required by the
due process clause of the Fourteenth Amendment, and allowed too much discretion to law enforcement to unevenly
enforce its provisions
...
CGIs should support a significant government interest, be narrowly tailored to avoid
constitutionally protected activity, and be buttressed by evidence that the CGI is the least restrictive means to carry
out the interest stated
...
7 Potential Constitutional Challenges to Statutes Targeting Gangs

Saylor URL: http://www
...
org/books

Saylor
...
8 Diagram of Crimes Involving Group Activity

Saylor URL: http://www
...
org/books

Saylor
...
Some jurisdictions punish the failure to disperse (criminal act) with
general intent or knowingly when a peace officer or public servant orders a group likely
to cause substantial harm, serious annoyance, or alarm to do so
...
saylor
...
org
531

the attendant circumstance, which is the group minimum, identifying two, three, five, or
some similar number, depending on the statute
...




Unlawful assembly and failure to disperse are typically graded as misdemeanors
...
Some jurisdictions require
the criminal act and intent to be the factual and legal cause of harm, which is public
terror, alarm, or a risk thereof
...

Riot is often graded as a misdemeanor, or a felony if a firearm is used or there is
property damage or physical injury to someone other than a defendant
...




Criminal gang could be defined as a group of a statutorily specified number that engages
in a pattern of criminal activity and has in common hand signs, tattoos, and style of
dress
...




Gang participation statutes criminalize actively participating in a criminal gang and
promoting, furthering, or assisting (criminal act) the commission of a felony on behalf of
a criminal gang with the general intent or knowingly that the gang participates in a
pattern of criminal activity
...
Gang
enhancement statutes enhance a sentence for a misdemeanor or felony committed with

Saylor URL: http://www
...
org/books

Saylor
...
Some states only
provide gang enhancement statutes for the commission of a felony
...




Statutes targeting gangs can be constitutionally challenged under the First Amendment
or as void for vagueness or overbroad
...
Check your answers using the answer key at the end of the chapter
...
A law enforcement officer arrests a group of individuals for standing outside a Jewish
temple with signs that indicate a disbelief in the holocaust
...
What are some potential
constitutional problems with this arrest?
2
...
NYS Parole in Bronx, 586 F
...
In Ortiz, the defendant was found
guilty of several counts of riot under New York’s first-degree riot statute for conduct that
occurred after he left the scene of the riot
...
google
...

3
...
Englebrecht, 88 Cal
...
4th 1236 (2001)
...
google
...


[1] Ala
...
onecle
...
html
...
saylor
...
org
533

[2] Fla
...
Ann
...
02, accessed April 9, 2011,http://law
...
com/florida/crimes/870
...
html
...
Stat
...
§ 870
...
onecle
...
02
...

[4] Ala
...
onecle
...
html
...
Gen
...
269 § 1, accessed April 9, 2011,http://law
...
com/massachusetts/269/1
...

[6] N
...
Stat
...
onecle
...
html
...
Penal Code § 407, accessed April 9, 2011,http://law
...
com/california/penal/407
...

[8] Fla
...
Ann
...
02, accessed April 9, 2011,http://law
...
com/florida/crimes/870
...
html
...
J
...
§ 2C:33-1, accessed April 9, 2011, http://law
...
com/new-jersey/2c-the-new-jersey-code-ofcriminal-justice/33-1
...

[10] People v
...
Y
...
2d 352 (2009), accessed April 9,
2011,http://scholar
...
com/scholar_case?case=15178974598569042123&q=
unconstitutional+%22unlawful+assembly+statute%22&hl=en&as_sdt=2,5&as_ylo=1992
...
Code § 13A-11-5, accessed April 9, 2011, http://law
...
com/alabama/criminal-code/13A-11-5
...

[12] Ga
...
16 § 16-11-30, accessed April 9, 2011, http://law
...
com/georgia/16/16-11-30
...

[13] N
...
Stat
...
onecle
...
html
...
Penal Code § 404, accessed April 9, 2011,http://law
...
com/california/penal/404
...
Code tit
...
onecle
...
html
...
Code § 13A-11-3, accessed April 9, 2011, http://law
...
com/alabama/criminal-code/13A-11-3
...

[16] Ga
...
16 § 16-11-30, accessed April 9, 2011, http://law
...
com/georgia/16/16-11-30
...

[17] N
...
Stat
...
onecle
...
html
...
Code § 13A-11-3, accessed April 9, 2011, http://law
...
com/alabama/criminal-code/13A-11-3
...

[19] Ala
...
onecle
...
html
...
Code Ann
...
2-405, accessed April 9, 2011, http://law
...
com/virginia/crimes-and-offensesgenerally/18
...
html
...
Y
...
06, accessed April 9, 2011, http://law
...
com/new-york/penal/PEN0240
...
06
...


Saylor URL: http://www
...
org/books

Saylor
...
S
...
521(a), accessed April 12, 2011,http://www
...
cornell
...
html
...
S
...
521(d), accessed April 12, 2011,http://www
...
cornell
...
html
...
§ 11
...
900 (13), accessed April 12, 2011,http://law
...
com/codes/alaska/2009/title11/chapter-11-81/article-07/sec-11-81-900
...
§ 18-8502(2), accessed April 12,
2011,http://law
...
com/codes/idaho/2010/title18/t18ch85sect18-8502
...

[26] Ohio Rev
...
§ 2923
...
justia
...
html
...
Stat
...
§ 874
...
onecle
...
04
...

[28] Cal
...
22, http://law
...
com/codes/california/2010/pen/186
...
33
...

[29] Del
...
tit
...
justia
...
html
...
Code Ann
...
11 § 616 (2)(b), accessed April 13,
2011,http://law
...
com/codes/delaware/2010/title11/c005-sc02
...

[31] Fla
...
Ann
...
04, accessed April 14, 2011,http://law
...
com/florida/crimes/874
...
html
...
Code Ann
...
11 § 616 (2)(c), accessed April 13,
2011,http://law
...
com/codes/delaware/2010/title11/c005-sc02
...

[33] Fla
...
Ann
...
06, accessed April 14, 2011,http://law
...
com/florida/crimes/874
...
html
...
Stat
...
§ 874
...
onecle
...
06
...

[35] Tex
...
065, accessed April 14, 2011,http://law
...
com/texas/civil/125
...
00
...

[36] Tex
...
064, accessed April 14, 2011,http://law
...
com/texas/civil/125
...
00
...

[37] People v
...
4th 1090 (1997), accessed April 14,
2011,http://scholar
...
com/scholar_case?case=10825872110148502169&hl=en&as_sdt=2&as_vis=1&oi=scho
larr (accessed April 15, 2011)
...
org website, accessed April 14,
2011, http://www
...
org/pdf/Civil_Gang_Injunctions_09
...

[39] Tex
...
066, accessed April 14, 2011,http://law
...
com/texas/civil/125
...
00
...


Saylor URL: http://www
...
org/books

Saylor
...
Acuna, 14 Cal
...
google
...

[41] Max Shiner, “Civil Gang Injunctions a Guide for Prosecutors,” Ndaa
...
ndaa
...
pdf
...
3 Vice Crimes
LEARNING OBJECTIVES
1
...


2
...

3
...

4
...

5
...

6
...

Vice crimes offend the sensibilities, yet are often victimless and harmless, other than harm done to the defendant
or society in general
...
3
...
Upcoming sections analyze prostitution, pimping, and pandering
...


Drug Crimes
All states and the federal government criminalize the manufacture or cultivation,possession, sale,
and use of specified drugs
...
In addition, marijuana, a drug that has
demonstrated valid therapeutic qualities, has been legalized by many states formedicinal purposes,
which poses interesting constitutional questions, as is discussed in Section 12 "Modernization of Drug
Crimes Statutes"
...
saylor
...
org
536

Federal and State Drug Schedules
Federal criminal statutes targeting illegal drugs are part of the Comprehensive Drug Abuse Prevention
and Control Act of 1970, commonly known as theControlled Substances Act
...
For the purpose of drug crimes, the states and the federal
government categorize illegal drugs in drug schedules
...


[4]

Example of a Drug Schedule
[5]

The North Carolina drug schedule is located in N
...
Gen
...
§ 90-89-90-94
...


Federal and State Drug Crimes
The federal government and all fifty states criminalize the manufacture and cultivation, possession, sale,
and use of drugs categorized in a jurisdiction’s drug schedule, with exceptions for validly prescribed drugs
and drugs involved in scientific or medical research
...


[6]

However, there is no

constitutional impediment to punishing criminal acts involving controlled substances, even though it
may be more difficult for an addict to control drug-related criminal behavior
...


[8]

Cultivation of marijuana, which must be done withgeneral intent or knowingly, can be a

misdemeanor or a felony, depending on the quantity cultivated
...


[10]

As is discussed more fully in Chapter 4 "The Elements of a Crime", possession can

be actual, meaning the drug is located on or very near the defendant’s person, or constructive, meaning

Saylor URL: http://www
...
org/books

Saylor
...

or more
...


[13]

In many states,

possession of marijuana is graded lower than possession of other scheduled drugs—even as low as
an infraction if the quantity is less than one ounce
...


[15]

the sale of larger quantities,

[16]

a sale by an adult to a

[18]

Scheduled drug use, also designated as being under the influence of a controlled substance, is
typically a misdemeanor with more severe penalties for habitual offenders
...
Charlene
acquires some marijuana seeds and plants a marijuana garden in her backyard
...
After she arrives at the street corner,
Rick drives up, rolls down his window, and asks Charlene if she knows where he can “score
...
” Rick responds affirmatively, so Charlene gets
into Rick’s car and they drive to a local park
...

Charlene takes out a joint, and Rick and Charlene smoke it
...

In this example, Charlene has probably committed every drug crime discussed inSection 12 "Federal and
State Drug Crimes"
...
Harvesting and packaging the marijuana is possession for sale
...
Selling Rick a half-ounce of marijuana is
drug sale, distribution, or trafficking
...
Smoking the
marijuana with Charlene is use, or under the influence of a controlled substance
...
Thus, in this example, Charlene and Rick may be subject to
prosecution for and conviction of the stated drug offenses in most jurisdictions
...
saylor
...
org
538

Modernization of Drug Crimes Statutes
Two new trends in state drug crimes statutes are the emphasis on rehabilitation for nonviolent drug
offenders and the legalization of marijuana for medical use
...


[20]

Common offenses

for drug courts are simple possession and use of drugs listed in a jurisdiction’s drug
schedule
...


[22]

During the rehabilitation, the offender is

frequently drug tested to ensure compliance
...


[23]

Legalization of marijuana for medical use is another modern statutory trend among the states
...


[24]

The criteria under these statutes

vary, but in general a qualified individual can gain a prescription for marijuana from a caregiver, usually a
physician, and thereafter obtain, possess, and use a specified quantity of marijuana
...


[25]

In some states,

[26]

The legalization of marijuana for medical use presents an interesting constitutional dilemma because
federal law lists marijuana as a Schedule 1 drug and does not permit its possession, use, or sale for
medicinal purposes
...
However, the US Supreme Court has
not invalidated any state’s medical marijuana statutory scheme on this basis, although the Court has
upheld federal Congress’s authority to prohibit the possession and use of small quantities of marijuana
under the Federal Controlled Substances Act
possession and use of marijuana
...
Remy
obtains a prescription from an authorized caregiver and then buys the maximum amount of marijuana
permitted under her state’s medical marijuana statute at a medical marijuana distribution center
...
saylor
...
org
539

Remy leaves the distribution center, Donny, a drug dealer standing nearby, asks Remy if she would like to
buy some cocaine
...
Unfortunately for Remy, Donny
is a federal Drug Enforcement Agent who thereafter arrests Remy for possession of marijuana and
cocaine
...
The US Supreme Court has held that the federal
government may criminalize the possession of small amounts of marijuana, and there is no federal
medical necessity exemption
...
Remy’s state also can prosecute Remy for possession of cocaine
...

Figure 12
...
saylor
...
org
540

Crimes Involving Prostitution
Every state except Nevada criminalizes prostitution
...


The criminal act element required for prostitution varies, depending on the jurisdiction
...


[33]

[31]

in sexual conduct for money,

[32]

property, or anything of

Agreeing and engaging are both considered prostitution, so the prostitute and the prostitute’s clientcould

be prosecuted for and convicted of prostitution in most jurisdictions
...
1(1))
...


[34]

The Model Penal Code includes homosexual and deviate activity (Model

Penal Code § 251
...

The criminal intent element required for prostitution is either strict liability

intent or knowingly in most jurisdictions
...
1)
...


[38]

[37]

or clients who patronize

The Model Penal Code grades prostitution as a petty misdemeanor (Model Penal Code

§ 251
...

Two crimes associated with prostitution are pimping and pandering
...

generally graded as a misdemeanor
to compel an act of prostitution

[42]

[40]

or felony,

[41]

[39]

Pimping is

with sentencing enhancements if intimidation or force is used

or if the prostitute is a juvenile
...


[44]

occurs near a school
...
saylor
...
org
541

§ 251
...
The Model Penal Code grades these acts of promoting prostitution as felonies of the third degree
(Model Penal Code § 251
...


Example of Crimes Involving Prostitution
Daniel approaches Penelope, a sixteen-year-old, as she wanders down the sidewalk
...
Penelope responds affirmatively, and Daniel asks her if she will
have sexual intercourse with John (who is an adult) for one hundred and fifty dollars
...
Daniel walks Penelope over to the entrance of a motel where John is waiting
...
Afterward, John pays
Penelope the one hundred and fifty dollars
...
Penelope protests, but Daniel
twists her arm behind her back, and she grudgingly hands him the money
...

In this example, Penelope and John have probably committed prostitution, and Daniel has most likely
committed pimping and pandering in many jurisdictions
...
When John has sexual intercourse with
Penelope and thereafter pays her one hundred and fifty dollars, he is engaging in sexual conduct for
money with general intent or knowingly, which is also generally criminal prostitution
...
When Daniel procures
John and Penelope for the purpose of committing prostitution, he is most likely committing pandering
...
The use of force to obtain the money and
Penelope’s age could enhance Daniel’s sentence for both crimes in many jurisdictions
...


Saylor URL: http://www
...
org/books

Saylor
...
10 Diagram of Vice Crimes

Various Vice Statutes
Most states criminalize gambling,
influence
...


KEY TAKEAWAYS


Federal criminal statutes targeting illegal drugs are part of the Comprehensive Drug
Abuse Prevention and Control Act of 1970, commonly known as the Controlled
Substances Act
...




For the purpose of drug crimes, the states and the federal government categorize illegal
drugs in schedules
...




In most jurisdictions, the manufacture of scheduled drugs is a felony, and cultivation of
marijuana, which must be done with general intent or knowingly, can be a misdemeanor
or a felony, depending on the quantity cultivated
...
saylor
...
org
543

typically graded based on the quantity, schedule classification, and whether or not the
possession is for sale, with penalties ranging from a misdemeanor for simple possession
to a serious felony for possession with intent to sell
...
Sale, distribution, or trafficking of scheduled drugs is generally graded as a
felony, with sentencing enhancements for drugs in a higher schedule, the sale of larger
quantities, a sale by an adult to a minor, or a sale near school grounds
...



Two modern trends in state drug crimes statutes are the emphasis on rehabilitation for
nonviolent drug offenders, which drug courts provide through sentencing, and the
legalization of marijuana for medical use in sixteen states and the District of Columbia
...




Prostitution is generally offering, agreeing, or engaging in sexual conduct for money or
anything of value (criminal act), with general intent or knowingly, or strict liability
...
Pimping is generally receiving anything of value from a prostitute
(criminal act), with general intent or knowingly that it was earned by prostitution in
many jurisdictions, and is typically graded as a misdemeanor or felony, with sentencing
enhancements if intimidation or force is used to compel an act of prostitution or if the
prostitute is a juvenile
...

EXERCISES
Answer the following questions
...


Saylor URL: http://www
...
org/books

Saylor
...
Anita lives in a state that permits the possession and use of marijuana for medical
reasons
...
Has Anita committed a crime(s)?
2
...
State, 153 S
...
3d 402 (2005)
...
After the defendant
left, a subsequent law enforcement search uncovered the cocaine inside a tin breath
mints can hidden in the ceiling of the master bedroom closet
...
Did the Court of Criminal Appeals of Texas affirm the court’s reversal? Why
or why not? The case is available at this
link: http://scholar
...
com/scholar_case?case=10968287895213637721&q=
possession+of+drugs+roommate+control+%22joint+possession%22&hl=en&as_sdt=2,5&
as_ylo=2002
...
Read People v
...
90962 (Ohio 2120 2009)
...
The defendant appealed on the grounds that the
proper interpretation of compelling prostitution under the Ohio statute requires force,
duress, or coercion and the defendant merely arranged it so that the prostitute had no
money for shelter, clothes, and food if she did not continually commit prostitution
...
google
...


LAW AND ETHICS
Should Convicted Prostitutes Be Subjected to Involuntary AIDS Testing?
Read Love v
...
App
...
The case is available at this
link: http://scholar
...
com/scholar_case?case=16603325888575880385&q=
Love+v
...
In Love, the defendants, convicted prostitutes, challenged the
Saylor URL: http://www
...
org/books

Saylor
...


[50]

The defendants claimed the statute was an unreasonable search

pursuant to the Fourth Amendment and also violated the due process and the equal protection clauses
...
In California, soliciting or agreeing to exchange sexual conduct for money
constitutes prostitution,

[51]

so a conviction for prostitution does not necessarily indicate an exchange of

bodily fluids that could spread AIDS
...
Do you think it is ethical to require all convicted prostitutes to submit to AIDS testing,
whether or not they engaged in sexual intercourse? Why or why not?
Check your answer using the answer key at the end of the chapter
...
S
...
§ 801 et seq
...
deadiversion
...
gov/21cfr/21usc/index
...

[2] Uniform Controlled Substances Act (1994), accessed April 17,
2011,http://www
...
upenn
...
pdf
...
S
...
§ 812, accessed April 17, 2011,http://www
...
cornell
...
html
...
Stat
...
§ 152
...
revisor
...
gov/statutes/?id=152
...

[5] N
...
Gen
...
§ 90-89-90-94, accessed April 17,
2011,http://www
...
state
...
us/EnactedLegislation/Statutes/HTML/ByArticle/Chapter_90/Article_5
...

[6] Robinson v
...
S
...
google
...

[7] Ala
...
onecle
...
html
...
Code § 13A-12-218, accessed April 17, 2011, http://law
...
com/alabama/criminal-code/13A-12218
...


Saylor URL: http://www
...
org/books

Saylor
...
Code Ann
...
04, accessed April 17, 2011,http://codes
...
gov/orc/2925
...

[10] Ohio Rev
...
§ 2925
...
ohio
...

[11] Connecticut Jury Instructions No
...
11-1, http://www
...
ct
...
11-1
...

[12] Connecticut Jury Instructions No
...
11-1, http://www
...
ct
...
11-1
...

[13] People v
...
App
...
google
...
+Parra+70+Cal
...
+4th+222&hl=en&as_sdt=2,5
...
Health and Safety Code § 11357(b), accessed April 18,
2011,http://www
...
org/laws/hsc11357
...

[15] N
...
Gen
...
§ 90-95, accessed April 17,
2011,http://www
...
state
...
us/EnactedLegislation/Statutes/HTML/ByArticle/Chapter_90/Article_5
...

[16] Ala
...
onecle
...
html
...
Code § 13A-12-215, accessed April 17, 2011,http://law
...
com/alabama/criminal-code/13A-12215
...

[18] Ala
...
onecle
...
html
[19] Cal
...
onecle
...
html
...
Rev
...
§ 13-3422, accessed April 17, 2011,http://law
...
com/arizona/criminal-code/133422
...

[21] Ariz
...
Stat
...
onecle
...
html
...
Penal Code § 469
...
lp
...
com/txstatutes/HS/6/B/469/469
...

[23] Ariz
...
Stat
...
onecle
...
html
...
saylor
...
org
547

[24] “Medical Marijuana Summary Chart,” Procon
...
procon
...
resource
...

[25] Alaska Stat
...
37
...
37
...
procon
...
pdf
...
Health and Safety Code §§ 11362
...
83, accessed April 17,
2011,http://medicalmarijuana
...
org/view
...
php?resourceID=000881#California
...
S
...
§ 812, accessed April 17, 2011,http://www
...
cornell
...
html
...
Raich, 545 U
...
1 (2005), accessed April 17, 2011,http://www
...
org/cases/20002009/2004/2004_03_1454
...
S
...
Oakland Cannabis Buyers’ Cooperative, 532 U
...
483 (2001), accessed April 17,
2011, http://www
...
org/cases/2000-2009/2000/2000_00_151
...
R
...
201
...
onecle
...
354
...

[31] N
...
Penal Law § 230
...
onecle
...
00_230
...
html
...
Y
...
00, accessed April 21, 2011, http://law
...
com/newyork/penal/PEN0230
...
00
...

[33] 720 ILCS § 5/11-14, accessed April 21, 2011, http://law
...
com/illinois/720ilcs5/11-14
...

[34] 720 ILCS § 5/11-14, accessed April 21, 2011, http://law
...
com/illinois/720ilcs5/11-14
...

[35] N
...
Penal Law § 230
...
onecle
...
00_230
...
html
...
M
...
§ 30-9-2, accessed April 21, 2011, http://law
...
com/codes/new-mexico/2009/chapter30/article-9/section-30-9-2
...
onecle
...
html
...
Y
...
06, accessed April 21, 2011, http://law
...
com/newyork/penal/PEN0230
...
06
...

[39] 720 ILCS § 5/11-19, accessed April 21, 2011, http://law
...
com/illinois/720ilcs5/11-19
...

[40] 720 ILCS § 5/11-19, accessed April 21, 2011, http://law
...
com/illinois/720ilcs5/11-19
...


Saylor URL: http://www
...
org/books

Saylor
...
M
...
§ 30-9-4
...
justia
...

[42] N
...
Penal Law § 230
...
onecle
...
33_230
...
html
...
Y
...
32, accessed April 21, 2011, http://law
...
com/newyork/penal/PEN0230
...
32
...

[44] Cal
...
onecle
...
html
...
onecle
...
html
...
Rashbaum, “Spitzer Is Linked to Prostitution Ring,” New York Times website, accessed
September 4, 2011,http://www
...
com/2008/03/10/nyregion/10cnd-spitzer
...

[47] 18 Pa
...
S
...
onecle
...
055
...
000
...

[48] Cal
...
onecle
...
html
...
Rev
...
§ 813
...
, accessed April 21, 2011,http://law
...
com/oregon/813-driving-underthe-influence-of/index
...

[50] Cal
...
1, accessed April 22, 2011,http://law
...
com/california/penal/1202
...
html
...
Penal Code § 647(b), accessed April 2, 2011,http://law
...
com/california/penal/647
...


Chapter 13
Crimes against the Government
Bribery, of course, connotes a voluntary offer to obtain gain, where extortion connotes some form of coercion
...
S
...
Adcock, cited in Section 13
...
2 "Bribery Elements"

Saylor URL: http://www
...
org/books

Saylor
...
1 Crimes Involving National Security
LEARNING OBJECTIVES
1
...


2
...

3
...

4
...

The government is tasked with keeping the nation safe from domestic and international attacks on the government
and citizens
...


[1]

Criminal statutes protecting the government can encroach on the individual freedom

to protest government action and can also affect privacy interests, which subjects them to enhanced constitutional
scrutiny similar to the crimes against the public reviewed inChapter 12 "Crimes against the Public"
...
Section 13
...
The last section of this chapter discusses other crimes
against the government that are primarily stateregulated, such as perjury, bribery, and obstruction of justice
...
The founding fathers wanted to ensure that the government would not charge an individual
with treason without significant and reliable proof
...
Although the treason clause in the
Constitution is modeled after the early English law defining treason, it omits a section that criminalized
“imagining the death of the King” and also limits Congress’s authority to extend or expand the crime of
treason or to lighten the evidentiary requirements
...
No Person shall
be convicted of Treason unless on the Testimony of two Witnesses to the same overt Act, or on Confession
in open Court
...
saylor
...
org
550

Treason Elements and Grading
The criminal act element required for treason is levying war against the United Statesor adhering to the
enemy by giving aid and comfort
...
In U
...
v
...
In Haupt v
...
S
...
S
...
The criminal intent element required for treason is most likely the general
intent or knowingly to commit an act of levying war or the specific intent or purposely to betray the
United States by giving aid and comfort to enemies
...


[4]

As stated in Cramer v
...
S
...
S
...
Treason is graded as a felony that can merit the death
penalty or prohibit the defendant from ever holding federal office
...
A government agent posing as an enemy
spy invites Benedict to dinner, and they discuss the decline of the United States and whether or not they
should “do something about it
...
Thereafter,
Benedict is arrested for treason and refuses to incriminate himself by responding to law enforcement
interrogation
...
Benedict paid for the
government agent’s dinner, which could constitute providing aidto the enemy
...
In addition, only the government agent
can testify as to Benedict’s act of paying for a meal because Benedict is asserting his right to remain silent
...
saylor
...
org
551

is not satisfied
...


Saylor URL: http://www
...
org/books

Saylor
...
1 Crack the Code

Sedition
Sedition criminalizes the incitement of insurrection or revolution by seditious speech or writings and, as such, is
subject to the restrictions set forth in the First Amendment
...
saylor
...
org
553

Act enacted in 1798 and repealed by Thomas Jefferson after his election as president
...
S
...
§ 2385
...
S
...
§ 2384
...


[6]

Like treason, sedition is rarely

prosecuted
...


[7]

The criminal intent element required for sedition is

the general intent or knowingly to advocate, aid, teach, or organize, or the specific

intent orpurposely to print, publish, or circulate written matter that advocates, aids, or teaches the violent
government overthrow
...
U
...
, 354 U
...
298 (1957), the US Supreme Court held that only advocacy

directed at promoting unlawful action could be constitutionally prohibited
...


[9]

Sedition is graded as a felony that can prohibit the

defendant from obtaining employment with the US government for a minimum of five years postconviction
...

Mo prints up leaflets advocating the overthrow of the government by placing a series of bombs in strategic
and specifically named places and passes them out every Saturday in front of varied places known for
ethnic diversity throughout the city
...
Moprinted
written matter advocating the overthrow of the US government by unlawfulaction,
using force and violence
...
Thus Mo’s conduct probably constitutes sedition,
and he may be subject to prosecution for and conviction of several counts of this offense
...
2 Diagram of Sedition

Saylor URL: http://www
...
org/books

Saylor
...
S
...
§ 2151 et seq
...
Many
states have similar provisions
...
S
...
§ 2152 focuses on destroying or damaging harbor-defense property
...
S
...
§ 2153 focuses on destroying or damaging war material, premises, or utilities
...
S
...
§ 2154 focuses on producing defective war materials, premises, or utilities
...
S
...
§ 2155 focuses on destroying or damaging national defense material, premises,
or utilities
...
S
...
§ 2156 focuses on producing defective national defense material, premises, or
utilities
...
saylor
...
org
555

Both 18 U
...
C
...
All the sabotage statutes grade sabotage as a felony, with sentences ranging from five to
thirty years’ incarceration in federal prison
...


Example of Sabotage
Review the example in Section 13 "Example of Sedition" with Mo
...
He decides to get back at the United States for not
allowing him to become a US citizen by harming its national security and exposing it to attack by enemy
forces
...
Mo has most likely committed the federal crime
ofsabotage
...
S
...
§ 2155, whether or not it is
wartime or during a national emergency
...


Figure 13
...
saylor
...
org
556

Espionage
Espionage, also known as “spying,” is criminalized at 18 U
...
C
...
Originally part of one of the early
versions of the Sedition Act of 1918, the crime of espionage has a colorful history and many interesting criminal
prosecutions similar to criminal sabotage
...
During times of peace, it is criminal espionage to gather, transmit,
or attempt to gather or transmit defense information (criminal act) with general intent or knowingly, or
with the specific intent or purposely that it will be used to damage the United States or assist any foreign
nation
...

with potential sentencing of life in prison or the death penalty
...
saylor
...
org
557

Some interesting criminal espionage cases are the Rosenberg case, where a married couple conspired to pass nuclear
secrets to the Soviets and were later executed pursuant to the death penalty, the Hanssen case, where an FBI agent
sold state secrets to Moscow for $1
...


Example of Espionage
Review the example given in Section 13 "Example of Sabotage" with Mo and his computer hacking
...
I have also
disabled their computer system, which will probably take some time to repair
...
” He thereafter severely damages the computer system
...
As stated in Section 13 "Example of Sabotage", Mo
probably committed sabotage when hedamaged national defense material with the specific
intent or purposely to interfere with the nation’s security and defense
...
Thus Mo has probably committed both
sabotage and espionage and may be subject to prosecution for and conviction of these offenses
...
1 Comparing Treason, Sedition, Sabotage, and Espionage

Crime

Criminal Act or Harm

Criminal Intent

Treason*

Levy war, or give aid and
comfort to enemies

Most likely, general intent or
knowingly to levy war, specific
intent or purposely to betray the
United States with aid and comfort

Sedition

Advocating or printing
matter that advocates the
forceful or violent
overthrow of the US
government

General intent or knowingly to
advocate, specific intent or
purposely when printing matter
that advocates the forceful or
violent overthrow of the US
government

Sabotage

Varies: either destroying,
damaging, or producing
defective property that
impedes US defense

Varies: specific intent or purposely,
general intent or knowingly or
negligently

Attendant
Circumstance(s)

Saylor URL: http://www
...
org/books

Certain conduct must
take place during war or
a national emergency
Saylor
...
The criminal intent element
required for treason is most likely the general intent or knowingly to commit an act of
levying war, or the specific intent or purposely to betray the United States by giving aid
and comfort to enemies
...
Treason is graded as a felony
...
The criminal intent element
required for sedition is the general intent or knowingly to advocate, aid, teach, or
organize or the specific intent or purposely to print, publish, or circulate written matter
that advocates, aids, or teaches the forceful or violent government overthrow
...




The criminal act and harm elements required for sabotage vary but are generally
damaging, destroying, or producing defective property that impedes the US national
defense or ability to participate in or prepare for war
...
Some forms of
sabotage require the attendant circumstance that the conduct occurs during wartime or
a national emergency
...


Saylor URL: http://www
...
org/books

Saylor
...
Some forms of espionage
require the attendant circumstance that the conduct occurs during wartime
...


EXERCISES
Answer the following questions
...


1
...
Is Stephanie committing sedition? Why or why not?
2
...
S
...
Kabat, 797 Fed
...
Did the US Court of Appeals for the Eighth
Circuit uphold the defendants’ convictions for sabotage when, as nuclear protestors,
they intentionally damaged US missiles? Why or why not? The case is available at this
link: http://scholar
...
com/scholar_case?case=5276967647790252481&q=
sabotage+%222155%22&hl=en&as_sdt=2,5&as_ylo=1992
...
Read In re Squillacote, 790 A
...
Did the District of Columbia Court of Appeals
hold that conspiracy to commit espionage and attempted espionage are crimes of moral
turpitude that could support the defendant’s disbarment? The case is available at this
link: http://scholar
...
com/scholar_case?case=8408409521873710428&q=
espionage+%22793%22&hl=en&as_sdt=2,5&as_ylo=2000
...
Nelson, accessed May 1, 2011, 350 U
...
497
(1956),http://supreme
...
com/us/350/497/case
...

[2] 18 U
...
C
...
law
...
edu/uscode/718/usc_sec_18_00002381---000-
...

[3] Cramer v
...
S
...
S
...
justia
...

[4] 18 U
...
C
...
law
...
edu/uscode/718/usc_sec_18_00002381---000-
...

[5] 18 U
...
C
...
law
...
edu/uscode/718/usc_sec_18_00002381---000-
...


Saylor URL: http://www
...
org/books

Saylor
...
Cons
...
Ann
...
onecle
...
060
...
000
...

[7] 18 U
...
C
...
law
...
edu/uscode/718/usc_sec_18_00002385---000-
...

[8] 18 U
...
C
...
law
...
edu/uscode/718/usc_sec_18_00002385---000-
...

[9] Yates v
...
S
...
S
...
google
...
+U
...
&hl=en&as_sdt=2,5
...
S
...
§ 2385, accessed April 30, 2011,http://www
...
cornell
...
html
...
05
...
leg
...
gov/rcw/default
...
05
...

[12] 18 U
...
C
...
law
...
edu/uscode/718/usc_sec_18_00000793---000-
...

[13] 18 U
...
C
...
law
...
edu/uscode/718/usc_sec_18_00000794---000-
...

[14] 18 U
...
C
...
, accessed May 1,
2011,http://www
...
cornell
...
html
...
2 Crimes Involving Terrorism
LEARNING OBJECTIVES
1
...


2
...

3
...

4
...

5
...

In recent years, crimes involving terrorism have escalated both in the United States and abroad
...
In this section, federal statutes criminalizing acts of terrorism are reviewed, along with potential
constitutional challenges
...
saylor
...
org
561

Statutory Schemes Targeting Terrorism
Before the September 11, 2001, terrorist attacks on the United States, the primary federal statutes
criminalizing terrorism were the Omnibus Diplomatic Security and Antiterrorism Act of 1986 and the
Antiterrorism and Effective Death Penalty Act of 1996 (AEDPA), which was enacted after the Oklahoma
City bombings
...

The USA PATRIOT Act changed and strengthened existing laws targeting terrorism and enhanced US
capabilities to prosecute terrorism committed abroad
...


[3]

[2]

[1]

creates new crimes involving

and provides for the civil forfeiture of assets

Other fundamental changes incorporated in the USA PATRIOT Act are the

expansion of government surveillance capabilities, including telephone interception and scrutiny of emails
...
DHS enforces provisions of federal laws against terrorism and includes the
following agencies: the Secret Service, Customs, the Federal Emergency Management Agency, United
States Coast Guard, Border Patrol, Transportation Security Administration, and Citizenship and
Immigration Services
...
Specific crimes such as murder, attempted murder, and conspiracy to
commit murder committed against an American national (defined as an American citizen or individual
who owes permanent allegiance to the United States)

[7]

while outside the United States are graded as

high-level felonies with all ranges of sentencing options available, including the death
[8]

penalty
...


Saylor URL: http://www
...
org/books

[9]

Prohibited as

Saylor
...


All these crimes aregraded as serious felonies
...
Although Moussaoui was not onboard any of the planes that crashed into the World
Trade Center, Pentagon, and a Pennsylvania field because he was in federal custody, he
was indicted

[14]

for several counts of conspiracy to commit terrorism and aircraft piracy and pleaded

guilty to all charges
...
After the extended trial, during which Moussaoui attempted to
represent himself, and the resulting guilty pleas, the jury carefully considered and recommended against
the death penalty for Moussaoui, who was thereafter sentenced to life in prison
...


[16]

whose decision was later affirmed by the US Court of Appeals for the Fourth

[17]

Figure 13
...
saylor
...
org
563

Constitutional Challenges to the USA PATRIOT Act
Portions of the USA PATRIOT Act provide for enhanced government surveillance capabilities, which are considered a
search, so constitutional implications are present pursuant to the Fourth Amendment, which prohibits
unreasonable search and seizure
...
Litigation involving these challenges is ongoing and was filed on behalf of citizens by the
American Civil Liberties Union (ACLU)
...
5 Diagram of Crimes Involving National Security and Terrorism

Saylor URL: http://www
...
org/books

Saylor
...




The Department of Homeland Security enforces terrorism laws
...
The
definition of domestic terrorism is exactly the same, except the criminal acts take place
within the territorial jurisdiction of the United States
...




The USA PATRIOT Act expands government surveillance capabilities, so it is subject to a
Fourth Amendment challenge as an unreasonable search, and also prohibits financing
terrorism, so it is subject to a First Amendment challenge as a prohibition on free
speech, freedom of religion, and freedom to associate
...
Check your answers using the answer key at the end of the chapter
...
Joshua shoots and kills Khalid in front of the Pakistani Embassy in Washington, DC
...
Read Humanitarian Law Project v
...
3d 1130 (2000)
...
S
...
§ 2339, which prohibits providing material
Saylor URL: http://www
...
org/books

Saylor
...
google
...

3
...
U
...
Department of Justice, 352 F
...
In
this case, the same federal statute was analyzed (18 U
...
C
...
Reno, in Exercise 2
...
google
...

Next
[1] USA PATRIOT Act, Tit
...
access
...
gov/cgibin/getdoc
...
107
...

[2] USA PATRIOT Act, Tit
...
access
...
gov/cgibin/getdoc
...
107
...

[3] USA PATRIOT Act, Tit
...
access
...
gov/cgibin/getdoc
...
107
...

[4] USA PATRIOT Act, Tit
...
, http://frwebgate
...
gpo
...
cgi?dbname=107_cong_public_laws&docid=f:publ056
...
pdf
...
dhs
...
shtm
...
S
...
§ 2331(1), accessed May 3, 2011,http://www
...
cornell
...
html
...
S
...
§ 1101(a) (22), accessed May 3,
2011,http://www
...
cornell
...
html
...
S
...
§ 2332, accessed May 3, 2011,http://www
...
cornell
...
html
...
saylor
...
org
566

[9] 18 U
...
C
...
law
...
edu/uscode/718/usc_sec_18_00002331---000-
...

[10] 18 U
...
C
...
law
...
edu/uscode/718/usc_sec_18_00002332---a000-
...

[11] 18 U
...
C
...
law
...
edu/uscode/718/usc_sec_18_00002332--f000-
...

[12] 18 U
...
C
...
law
...
edu/uscode/718/usc_sec_18_00002339--C000-
...

[13] 18 U
...
C
...
law
...
edu/uscode/718/usc_sec_18_00002339---000-
...

[14] Zacarias Moussaoui indictment, Justice
...
justice
...
htm
...
washingtonpost
...
html
...
S
...
Moussaoui, Criminal No
...
umkc
...
pdf
...
S
...
Moussaoui, 591 F
...
google
...
S
...
+Moussaoui&hl=en&as_sdt=2,5
...
org website, accessed May 4,
2011, http://www
...
org/commentaries/patriotactupdate
...


13
...


Define the elements of perjury
...
Identify the issues commonly encountered in a perjury prosecution
...
Identify a potential defense to perjury
...
Define perjury by inconsistent statements and subornation of perjury
...
Analyze perjury and subornation of perjury grading
...
saylor
...
org
567

6
...

7
...

Crimes against the administration of justice impede the government’s ability to carry out the important functions of
prosecuting and convicting criminals, which, in turn, destroys citizens’ confidence that the US legal system is effective
in ensuring individual safety and security
...
Additional statutes criminalizing contempt
of court, resisting arrest, and escape are also available for review
...
Juries depend on witness testimony to reach a fair
and impartial verdict in civil and criminal trials, and grand juries depend on witness testimony to indict
defendants for criminal conduct
...

In the Middle Ages, the witnesses were the jurors, so the criminalization of false witness testimony did not
occur until the sixteenth century when the idea of a trial by an impartial jury emerged
...
This definition was also incorporated into early American common
law
...


[2]

Most state statutes or

state common law, in states that allow common-law crimes, define perjury as a false material statement
(criminal act), made with the specific intent or purposely to deceive, or the general
intent or knowingly that the statement was false, in a judicial or official proceeding (attendant
circumstance), under oath (attendant circumstance)
...
1(1))
...


Saylor URL: http://www
...
org/books

Saylor
...


[5]

Federally and in many jurisdictions,

the false statement can be written, as long as it is certified, such as a signature on an income tax
return

[6]

or a report
...
1(3))
...


[8]

The Model Penal Code has a similar

provision (Model Penal Code § 241
...
In addition, many jurisdictions have a provision that witnesses
who refuseto take an oath shall have the option of making a nonreligous affirmation that has thesame
legal effect as the oath
...
1(1))
...
When the intent requirement is
general intent or knowledge that the statement is false, proof that the statement is false could give rise to
an inference of intent
...


[11]

In many jurisdictions and federally,

materiality is a question of fact for the trier of fact, which could be a jury
...
1(2))
...


[13]

The Model Penal Code has a similar

provision (Model Penal Code § 241
...


Saylor URL: http://www
...
org/books

Saylor
...


[14]

The Model Penal

Code also has this corroborative evidence requirement (Model Penal Code § 241
...


Defense of Retraction
Many jurisdictions provide a defense to perjury if the defendant retracts his or her false statement in the
course of the same proceeding in which it was made before it becomes manifest that the falsification will
be exposed
...
1(4))
...
Macy’s department store is suing Lindsay
for the alleged theft of a diamond necklace
...
He
thereafter testifies that he saw Lindsay try on the necklace and then walk out of the store without paying
for it
...
In actuality, Marcus was shopping for jewelry as a gift for
his girlfriend
...
Marcus is testifying as a witness in
a civil rather than criminal trial, but this satisfies the perjury requirement that the testimony be offered
during a judicial or official proceeding
...
Marcus’s
statement is false, and he made the statement with knowledge of its falsity, which satisfies the perjury
criminal intent requirement
...
Thus Marcus is probably not subject to
prosecution for and conviction of perjury, based on his testimony in this case
...
Change
this example so that Marcus testifies that he did not see Lindsay walk out of the Macy’s department store
without paying for the necklace because he does not want to admit that he was shopping for jewelry to buy
his girlfriend
...
saylor
...
org
570

that he saw Lindsay steal the necklace, and that he was lying previously
...
Marcus made a false statement, under a validly administered oath,
in a judicial proceeding, with knowledge of its falsity
...
In many jurisdictions, the trier of fact,
which could be a judgeor jury, determines whether or not the statement is material
...
Thus all the elements of perjury appear to be present, and Marcus may be
subject to prosecution for and conviction of this offense
...
6 Diagram of Defenses to Perjury

Saylor URL: http://www
...
org/books

Saylor
...


[16]

Perjury by inconsistent statements is easier to prove than traditional

perjury because the prosecution can simply offer evidence that the defendant made statements that are
inconsistent, in a judicial proceeding, after taking a validly administered oath
...


[17]

The Model Penal Code

has a similar provision (Model Penal Code § 241
...


Example of Perjury by Inconsistent Statements
Review the example with Marcus in Section 13 "Example of Perjury"
...
Marcus made
two inconsistent statements while under a validly administered oath in Lindsay’s conversion trial, which
is a judicial proceeding
...
The prosecutor
does not have to provide corroborative evidence and does not have the burden of proving that the first
statement was false, which will simplify and expedite the trial and may subject Marcus to conviction of
this offense
...
saylor
...
org
572

Subornation of Perjury
Most jurisdictions criminalize subornation of perjury, which is typically procuring another to commit
perjury (criminal act) with specific intent or purposely, orgeneral intent or knowingly,
and factually and legally causing the resultingharm that perjury is in fact committed
...
Add to this example and
assume that Marcus begs Janelle, another witness in Lindsay’s conversion trial, to say that she did not see
him at Macy’s the day Lindsay stole the necklace
...
Marcus has not committed
subornation of perjury in this case
...
Thus
the harm element of subornation of perjury is lacking, and Marcus can be prosecuted only
for attempted subornation of perjury or solicitation to commit perjury, rather than the completed offense
...
7 Comparison of Perjury by Inconsistent Statements and Subornation of Perjury

Saylor URL: http://www
...
org/books

Saylor
...


[20]

The Model Penal Code

grades perjury as a felony of the third degree (Model Penal Code § 241
...
Subornation of perjury is
also graded as a felony
...
Nonetheless, the
threat of a felony conviction still serves as a deterrent and helps to ensure that witnesses testify truthfully
in judicial and official proceedings and give accurate statements in certified writings
...


[22]

At early common law, bribery was the receiving

or offering any undue reward by or to any person in a public office in order to influence his or her
behavior in office and induce him or her to act contrary to the known rules of honesty and integrity
...


[24]

The crime of bribery is often extended to apply to persons other than

public officials, such as employees, agents, or fiduciaries for the purpose of influencing the bribed

Saylor URL: http://www
...
org/books

Saylor
...


[25]

This type of bribery is typically calledcommercial bribery
...
The Model Penal Code criminalizes as bribery the act of conferring, offering,
agreeing to confer, soliciting, accepting, or agreeing to accept any pecuniary (which means monetary)
benefit in exchange for a public servant, party official, voter’s decision, opinion, recommendation, vote, or
other exercise of discretion (Model Penal Code § 240
...
The Model Penal Code also criminalizes as
bribery the act of conferring, offering, agreeing to confer, soliciting, accepting, or agreeing to
accept anybenefit in exchange for a judicial or administrative officer’s decision, vote, recommendation, or
other exercise of official discretion (Model Penal Code § 240
...


Prosecutorial Burden in Bribery Prosecutions
Similar to perjury, bribery is notoriously difficult to prove, which is a factor prosecutors must consider
when deciding whether or not to charge an individual(s) with this offense
...


Example of Bribery
Isabel, a defendant on trial for perjury, notices the judge presiding in her case shopping at Macy’s
department store
...
Isabel has most likely committed bribery in this case
...
In addition, based on these facts, Isabel’s connection to the
judge is only through her perjury prosecution, so her act appears calculated to influence his decision in
that case, especially because the watch is expensive and not merely a token
...


Saylor URL: http://www
...
org/books

Saylor
...
Add to this example and assume that
the judge graciously accepts Isabel’s gift and thereafter rules in her favor, acquitting her of perjury
...
Thus both Isabel
and the judge may be subject to prosecution for and conviction of this offense, and the judge’s acquittal of
Isabel will ease the prosecutor’s burden in proving the specific intent or purposely or general
intent or knowingly to enter into an agreement corruptly influencing the decision making in this case
...
Isabel steps up and charitably
offers to pay the gentleman’s bill
...
After pondering it for a few minutes, she realizes that he is
the same gentleman who could not pay his bill at the coffee shop
...
Although Isabel gave the umpire money, and he was the decision
maker in her son’s baseball game, Isabel did not give the money, nor did the umpire accept it, with
the specific intent or purposely or general intent orknowingly to enter into an
agreement influencing the umpire’s decisions
...


Bribery When No Authority to Act Is Present
In many states and under the Model Penal Code, it is no defense to bribery that the individual bribed
does not have the authority to act or make the decision that is the subject of the bribe (Model Penal Code
§ 240
...


[30]

Example of Bribery When No Authority to Act Is Present
Review the example with Isabel and the judge in Section 13 "Another Example of Bribery"
...
Isabel and the “judge” may still be prosecuted for and convicted of bribery in
many jurisdictions and under the Model Penal Code because lack of authority is typically not a
defense to bribery under modern statutes criminalizing this offense
...
8 Diagram of Defenses to Bribery

Saylor URL: http://www
...
org/books

Saylor
...

or a public official

[35]

[33]

When a

commits bribery, it is typical to disqualify that individual from

his or her office for life, in addition to any other sentence
...
States and the federal government exercise broad latitude in enacting statutes that criminalize
interference with any aspect of law enforcement procedure or the prosecution and conviction of criminal

Saylor URL: http://www
...
org/books

Saylor
...
Some typical examples of obstruction of justice are as follows: giving false identification to a
law enforcement officer,
officer when requested,
evidence,

[40]

[36]

[38]

impersonating a law enforcement officer,

giving false evidence,

tampering with evidence,

[41]

[39]

[37]

refusing to aid a law enforcement

hiding or concealing oneself and refusing to give

and tampering with a witness

[42]

or juror
...
The Model
Penal Code prohibits threatening unlawful harm to any person or public servant with purpose to influence
his decision, opinion, recommendation, vote, or other exercise of discretion (Model Penal Code § 240
...

Obstruction of justice offenses are most oftengraded as a misdemeanor or felony, depending on the
offense
...


[44]

Bonds was also charged with three counts

of perjury, but the jury could not agree to convict, resulting in a mistrial on all three counts
...
The obstruction of justice conviction resulted from Bonds’s evasive answer
to the question of whether his personal trainer had ever injected him with steroids
...


[47]

The perjury

charges support the obstruction of justice charge, so the defense asked for a court dismissal of the
obstruction of justice conviction in order to clear the way for an appeal
...


Saylor URL: http://www
...
org/books

Saylor
...


[51]

Review the statutes in the endnotes for common

elements and grading of these offenses
...
9 Diagram of Perjury, Bribery, and Obstruction of Justice

KEY TAKEAWAYS


Most jurisdictions define perjury as a false material statement (criminal act), made with
specific intent or purposely to deceive, or the general intent or knowingly that the

Saylor URL: http://www
...
org/books

Saylor
...



The issues commonly encountered in any perjury prosecution are proving the validity of
the oath, the defendant’s criminal intent, or the materiality of the false statement, and
any requirement of corroborative evidence
...




Perjury by inconsistent statements is when the defendant makes statements that are
inconsistent (criminal act), in a judicial proceeding (attendant circumstance), after taking
a validly administered oath (attendant circumstance)
...
Subornation of perjury is procuring
another to commit perjury (criminal act), with specific intent or purposely, or general
intent or knowingly, and factually and legally causing the resulting harm that perjury is
actually committed
...

Subornation of perjury is also graded as a felony
...
The crime of bribery is often extended to apply to persons other than
public officials, such as employees, agents, or fiduciaries for the purpose of influencing
the bribed individual’s on-the-job conduct, which is called commercial bribery
...
The primary issue in a bribery prosecution is proving the defendant’s criminal
intent to enter into an agreement that influences the bribed individual’s decision
making
...
saylor
...
org
580

large sum of money or bribery that results in incarceration for a felony, along with a
disqualification from office
...
All these acts are generally supported by specific intent or purposely, or
general intent or knowingly
...

EXERCISES
Answer the following questions
...


1
...
Susannah
saw a car accident and is subpoenaed to testify that the defendant was at fault
...
She knows the case will generate significant publicity, so Susannah shaves ten
years off of her age when asked routine background questions by the prosecutor
...
Read State v
...
458 (1977)
...
The defendant appealed, claiming the jury should have been
instructed on the lesser included offense of offering gifts to state police officers
...
google
...
+Carr%22&hl=en&as_sdt=2,5
...
Read People v
...
Y
...
2d 274 (2003)
...
saylor
...
org
581

charges against him
...
google
...

LAW AND ETHICS
Should Former President Clinton Have Been Criminally Prosecuted for Perjury and Obstruction of Justice?
On May 6, 1994, Paula Jones filed a civil lawsuit for sexual harassment against then-president Bill Clinton
...


[52]

An investigation pursuant to the Jones lawsuit revealed that the president was currently

having an affair with a White House intern, Monica Lewinsky
...
Lewinsky pursuant to the
definition of sexual relations given by the questioning attorneys
...


[55]

[54]

He also stated that he could not recall

After the deposition, he was involved in an effort

to get Ms
...


[56]

Although the Jones lawsuit was dismissed,

the president was evasive when asked questions regarding the Lewinsky affair during a grand jury
investigation instigated by Prosecutor and former Solicitor General Kenneth Starr
...
Lewinsky that was not appropriate
...
It constituted a critical
lapse in judgment and a personal failure on my part for which I am solely and completely
responsible
...
After a trial in the Senate, he was acquitted of both counts and thereafter served out his term
as president
...


[59]

1
...

[1] “Perjury—Perjury at Common Law,” Jrank
...
jrank
...
html
...
saylor
...
org
582

[2] 18 U
...
C
...
law
...
edu/uscode/718/usc_sec_18_00001621---000-
...

[3] Ga
...
16 § 16-10-70, accessed May 5, 2011, http://law
...
com/georgia/16/16-10-70
...

[4] Connecticut Jury Instructions § 53a-156, accessed May 5, 2011,http://www
...
ct
...
59
...

[5] Connecticut Jury Instructions § 53a-156, accessed May 5, 2011,http://www
...
ct
...
59
...

[6] 18 U
...
C
...
law
...
edu/uscode/26/usc_sec_26_00006065----000
...

[7] Cal
...
onecle
...
html
...
Code § 13A-10-108, accessed May 5, 2011, http://law
...
com/alabama/criminal-code/13A-10108
...

[9] 42 Pa
...
Stat
...
§ 5901, accessed May 5, 2011,http://law
...
com/pennsylvania/judiciary-andjudicial-procedure/00
...
001
...
html
...
Kimber, 48 Conn
...
234 (1998), accessed May 5,
2011,http://scholar
...
com/scholar_case?case=17399056576949304157&q=
State+v
...

[11] Mo
...
Stat
...
040, accessed May 5,
2011,http://www1
...
umkc
...
htm
...
S
...
Gaudin, 515 U
...
506 (1995), accessed May 5,
2011,http://scholar
...
com/scholar_case?case=12281686524757008977&hl=en&as_sdt=2&as_vis=1&oi=scho
larr
...
Ann
...
§ 575
...
law
...
edu/suni/CrimLaw/calendar/Class_4_Mo_perjury
...

[14] Tex
...
18, accessed May 5, 2011,http://law
...
com/texas/criminalprocedure/38
...
00
...

[15] Ala
...
onecle
...
html
...
saylor
...
org
583

[16] Ala
...
onecle
...
html
...
Code § 13A-10-104, accessed May 6, 2011, http://law
...
com/alabama/criminal-code/13A-10104
...

[18] N
...
Gen
...
§ 14-210, accessed May 6, 2011, http://law
...
com/north-carolina/14-criminal-law/14210
...

[19] N
...
Gen
...
§ 14-209, accessed May 6, 2011, http://law
...
com/north-carolina/14-criminal-law/14209
...

[20] Ga
...
16, § 16-10-70, accessed May 6, 2011, http://law
...
com/georgia/16/16-10-70
...

[21] N
...
Gen
...
§ 14-210, accessed May 6, 2011, http://law
...
com/north-carolina/14-criminal-law/14210
...

[22] U
...
v
...
2d 397 (1977), accessed May 6,
2011,http://scholar
...
com/scholar_case?case=189694239263939940&hl=en&as_sdt=2&as_vis=1&oi=scholar
r
...
org website, accessed May 6,
2011,http://www
...
org/LegalDictionary/B/Bribery
...

[24] N
...
Penal Law § 200
...
onecle
...
00_200
...
html; N
...
Penal Law § 200
...
onecle
...
10_200
...
html
...
Y
...
00, accessed May 6, 2011, http://law
...
com/newyork/penal/PEN0180
...
00
...

[26] N
...
Penal Law § 180
...
onecle
...
00_180
...
html
...
Penal Code § 85, accessed May 6, 2011,http://law
...
com/california/penal/85
...
Penal Code
§ 86,http://law
...
com/california/penal/86
...

[28] Cal
...
onecle
...
html; Cal
...
onecle
...
html
...
saylor
...
org
584

[29] Or
...
Stat
...
265, accessed May 6, 2011, http://law
...
com/oregon/162-offenses-against-thestate-and/162
...
html; Or
...
Stat
...
275, accessed May 7, 2011,http://law
...
com/oregon/162offenses-against-the-state-and/162
...
html
...
Code § 13A-10-61, accessed May 7, 2011, http://law
...
com/alabama/criminal-code/13A-10-61
...

[31] N
...
Penal Law § 200
...
onecle
...
00_200
...
html
...
Y
...
03, accessed May 6, 2011, http://law
...
com/newyork/penal/PEN0200
...
03
...

[33] N
...
Penal Law § 200
...
onecle
...
04_200
...
html
...
Penal Code § 88, accessed May 7, 2011,http://law
...
com/california/penal/88
...

[35] Cal
...
onecle
...
html
...
5, accessed May 7, 2011, http://law
...
com/illinois/720ilcs5/31-4
...
html
...
Stat
...
§ 843
...
onecle
...
08
...

[38] N
...
Penal Law § 195
...
onecle
...
10_195
...
html
...
onecle
...
html
...
onecle
...
html
...
Rev
...
§ 162
...
onecle
...
295
...

[42] 18 U
...
C
...
law
...
edu/uscode/718/usc_sec_18_00001512---000-
...

[43] Ariz
...
Stat
...
onecle
...
html
...
nytimes
...
html?pagewanted=1&_r=1
...
Ortiz, “Verdict in: Bonds Found Guilty, but Case Not Closed Yet,” USA TODAY website, accessed May 8,
2011, http://www
...
com/sports/baseball/2011-04-13-verdict-barry-bonds-guilty_N
...

[46] Juliet Macur, “Bonds Guilty of Obstruction, but Not of Perjury,” New York Times website, accessed May 8,
2011, http://www
...
com/2011/04/14/sports/baseball/14bonds
...


Saylor URL: http://www
...
org/books

Saylor
...
nytimes
...
html?pagewanted=1&_r=1
...
Ortiz, “Verdict in: Bonds Found Guilty, but Case Not Closed Yet,” USA TODAY website, accessed May 8,
2011, http://www
...
com/sports/baseball/2011-04-13-verdict-barry-bonds-guilty_N
...

[49] N
...
Gen
...
§ 5A-11, et seq
...
onecle
...
html
...
Cons
...
Ann
...
onecle
...
051
...
000
...

[51] Tex
...
06, accessed May 8, 2011,http://law
...
com/texas/penal/38
...
00
...

[52] Clinton v
...
S
...
law
...
edu/supct/html/951853
...
html
...
com website, accessed May 9,
2011, http://www
...
com/unitedstates/impeachments/clinton
...

[54] Deposition excerpts, Jones v
...
com website, accessed May 9,
2011, http://www
...
com/unitedstates/impeachments/jones-deposition
...

[55] Deposition excerpts, Jones v
...
com website, accessed May 9,
2011, http://www
...
com/unitedstates/impeachments/jones-deposition
...

[56] “Presidential Impeachment Proceedings,” Historyplace
...
historyplace
...
htm
...
com website, accessed May 9,
2011, http://www
...
com/unitedstates/impeachments/clinton
...

[58] “Presidential Impeachment Proceedings,” Historyplace
...
historyplace
...
htm
...
org website, accessed May 9,
2011, http://famguardian
...
htm
...
4 End-of-Chapter Material
Summary
The federal government protects national security by primarily regulating crimes against the United
States
...
saylor
...
org
586

United States, most likely with general intent or knowingly, or providing aid and comfort to the enemy
with the specific intent or purposely to betray the United States, and is graded as a serious felony with all
sentencing options available, including capital punishment
...
Sedition criminalizes the advocating, aiding, organizing, or teaching with general intent or
knowingly, or publishing, printing, or circulating writings that advocate, aid, or teach with specific intent
or purposely the forceful or violent overthrow of the US government and is graded as a serious felony that
can prohibit the defendant from holding federal office for five years postconviction
...

Espionage is gathering or transmitting defense information with general intent or knowingly or the
specific intent or purposely to damage the United States or assist any foreign nation, during peace or war,
and is graded as a serious felony with all range of sentencing options available, including capital
punishment
...
The Department of Homeland Security enforces criminal laws targeting
terrorism
...
Currently prohibited
as terrorism or terroristic conduct are murder, use of a weapon of mass destruction, bombing places of
public use, financing terrorism, harboring a terrorist, and conspiracy or attempt to commit any of the
foregoing
...

The state and federal government both criminalize conduct that impedes the administration of justice,
including perjury, bribery, and obstruction of justice
...
saylor
...
org
587

general intent or knowingly that the statement is false, in a judicial or official proceeding or in a certified
writing
...
One defense to perjury is retraction of the false material statement during the same judicial or
official proceeding before it becomes manifest that the falsity will be exposed
...
Perjury and subornation of perjury are typically graded as felonies
...
The most difficult bribery element to prove is the criminal intent element
...
Obstruction of justice crimes interfere with the orderly administration of justice
...

Obstruction of justice is graded as a misdemeanor or felony, depending on the offense
...
You have been presented with four case
files and told to review them and recommend criminal prosecutions based on the facts
...
Check your answers using the answer key at the end
of the chapter
...
The defendant, an army intelligence analyst stationed near Baghdad, Iraq, downloaded
thousands of classified Iraq and Afghanistan documents and confidential cables and
released them to an ex-computer hacker who thereafter exposed them to the
public
...
wordpress
...

Saylor URL: http://www
...
org/books

Saylor
...
The defendant typed up notes while her husband was analyzing sketches of a top-secret
bomb’s design for the purpose of passing the design on to another nation
...
umkc
...
HTM
...
The defendant, a cosmetic company, paid Chinese officials to obtain direct licensing of
its product in China
...
com/2011/05/avon-bribery-case-in-china-an-embarrassment
...
The defendant, a corrections officer, lied to federal law enforcement during an
investigation of her role in the assault of an inmate
...
stltoday
...
html
...
U
...
, 343 U
...
717 (1952), discusses a treason conviction based on the
treatment of American
POWs:http://scholar
...
com/scholar_case?case=14270191881160802490&q=
%22treason%22&hl=en&as_sdt=2,5
...
S
...
Rosen, 445 F
...
2d 602 (2006), discusses prosecution under the Espionage
Act: http://scholar
...
com/scholar_case?case=18013989744527722325&q=
%2218+U
...
C
...




Schultz v
...
W
...
google
...


Articles of Interest


Treason prosecutions in modern times:http://www
...
com/editorials/time-oftreason/41533

Saylor URL: http://www
...
org/books

Saylor
...
csmonitor
...
washingtonpost
...
html



The famous perjury trial of Alger Hiss: http://www
...
com/this-day-inhistory/alger-hiss -convicted-of-perjury



High-profile bribery cases:http://www
...
com/article/2010/04/01/bribery-usacases-idUSN 0121072820100401



The criminal prosecution of a sitting
president:http://www
...
gov/olc/sitting_president
...
S
...
Lindh case: http://notablecases
...
uscourts
...
html



Information about terrorism:http://www
...
gov/hazard/terrorism/index
...
uslegal
...
dhs
...
shtm

Statistics of Interest


Terrorism: http://www
...
gov/stats-services/publications



Bribery:http://www
...
org/infobycountry/0,3380,en_2649_37447_1_1_1_1_37447,
00
...
1 "Crimes Involving National Security"

1
...
Stephanie’s speech is most
likely protected because she might be envisioning a peaceful government overthrow by
legitimate means
...
The US Court of Appeals for the Eighth Circuit upheld the defendants’ convictions
for sabotage, stating that the specific intent or purposely to impede the US national

Saylor URL: http://www
...
org/books

Saylor
...

3
...


Answers to Exercises
From Section 13
...
Whether or not this is an act of terrorism requires more information
...
The location of the shooting could be a pure
coincidence, and Joshua could have a nonterroristic motive for the killing, such as
a personal hatred or malice toward Khalid
...
The US Court of Appeals for the Ninth Circuit upheld the statute, which was in place
before September 11, 2001, and under AEDPA prohibited domestic material support to
terrorists and terroristic organizations
...
However, the court affirmed the US District Court’s decision
that portions of the statute defining “personnel” and “training”
wereunconstitutionally vague
...
The US Court of Appeals for the Ninth Circuit upheld the statute against a Fifth
Amendment due process challenge by construing the statute to require proof that the
defendant act with the general intent or knowledge of the terrorist organization’s
designation or of the unlawful activities that caused it to be so designated
...
saylor
...
org
591

From Section 13
...
The primary issue in Susannah’s perjury prosecution is the materiality of her false
statement made under oath in a judicial proceeding
...
In many jurisdictions, the trier of fact, which could be a jury, determines
the materiality of this statement
...
The Supreme Court of Connecticut upheld the defendant’s bribery conviction, holding
that offering gifts to state police officers is not a lesser included offense of bribery
because it requires specific intent, and bribery under Connecticut law is not a specific
intent crime
...
The New York Supreme Court reversed the defendant’s conviction because the
defendant did not have a complaint filed against him, so the “witness” was notabout to
testify in a judicial proceeding, which is required under the witness tampering statute
...


The criminal prosecution of a sitting president would set a good example for the citizens
of the United States, but it would pose an immense disruption to the orderly functioning
of the government without a leader or commander in chief of the armed forces and
would also expose the nation to a security risk
...
If the case
had not been dismissed, the president would have expended an additional amount of
time and effort in preparing for and defending against the Jones lawsuit
...
Not only would the criminal prosecution require a series of
procedures from arrest, indictment, and discovery through pretrial motions, hearings,
and the trial itself, but if the president were to be convicted, the consequences to the
nation would beirreparable
...
saylor
...
org
592

concerns are outweighed by the important interests at stake, and most countries would
protect their leaders from this type of legal action while in office
...


This conduct aids the enemy, rather than impeding the administration of justice by
interfering with law enforcement procedure, criminal prosecution, or conviction, so the
proper crime to prosecute is treason
...
Copying a top-secret design and providing it to another nation is spying, rather than
destroying, damaging, or producing defective property to impede national defense, so
the proper crime to prosecute is conspiracy to commit espionage
...
This payment is made for the purpose of influencing a public official’s decision, rather
than harboring a terrorist abroad, so the proper crime to prosecute is bribery
...
The defendant was not under oath when she made the false statement
...


Chapter 14
Appendix A: Case Listings
Chapter 1 "Introduction to Criminal Law"


BMW of North America, Inc
...
Gore, 517 U
...
559 (1996)



Gonzales v
...
S
...
New York, 445 U
...
573 (1980)



Johnson v
...
C
...
199 (2001)



State v
...
W
...
State, 5 S
...
3d 693 (1999)



Keeler v
...
2d 617 (1970)



Texas v
...
S
...
Madison, 5 U
...
(1Cranch) 137 (1803)



Shaw v
...
S
...
saylor
...
org
593



Lawrence v
...
S
...
Bush, 386 F
...
2004)



People v
...
Layne, 526 U
...
603 (1999)



Padilla v
...
3d 1016 (2005)



Rogers v
...
S
...
Wade, 410 U
...
113 (1973)



Bowers v
...
S
...
Hudson & Goodwin, 11 U
...
32 (1812)



Alabama v
...
S
...
Raich, 545 U
...
1 (2005)



U
...
v
...
S
...
Nelson, 350 U
...
497 (1956)



Youngstown Sheet & Tube Co
...
Sawyer, 343 U
...
579 (1952)



Hamdi v
...
S
...
P
...
E
...
, 965 F
...
v
...
Ct
...
New York, 432 U
...
197 (1977)



Sullivan v
...
S
...
State, 758 N
...
2d 581 (2001)



Donahue v
...
3d 1000 (2000)



State v
...
2d 208 (1998)



Richards v
...
4008-4216 (2010)



Clinton v
...
S
...
United States, 541 U
...
600 (2004)



U
...
v
...
3d 513 (2010)



McCulloch v
...
S
...
) 316 (1819)



Commonwealth v
...
295 (1850)
Saylor URL: http://www
...
org/books

Saylor
...
S
...
S
...
Arizona, No
...
Louisiana, 391 U
...
145 (1968)



Smith v
...
S
...
California, 539 U
...
607 (2003)



Smith v
...
S
...
City of Rockford, 408 U
...
104 (1972)



Lawrence v
...
S
...
A
...
v
...
Paul, 505 U
...
377 (1992)



Miller v
...
S
...
Georgia, 418 U
...
153 (1974)



United States v
...
S
...
Mitchell, 508 U
...
47 (1993)



Reno v
...
Liberties Union, 521 U
...
844 (1997)



Holder v
...
Ct
...
Connecticut, 381 U
...
479 (1965)



Roe v
...
S
...
Casey, 505 U
...
833 (1992)



District of Columbia v
...
Ct
...
Chicago, No
...
U
...
, 445 U
...
55 (1980)



U
...
v
...
S
...
Georgia, 408 U
...
238 (1972)



Gregg v
...
S
...
Rees, 128 S
...
1520 (2008)



Coker v
...
S
...
Louisiana, 128 S
...
2641 (2008)



Apprendi v
...
S
...
saylor
...
org
595



U
...
v
...
S
...
Washington, 542 U
...
296 (2004)



Lockyer v
...
S
...
Gomez, 77 F
...
U
...
, 128 S
...
586 (2007)



South Dakota v
...
W
...
Martinez, 130 S
...
2971 (2010)



U
...
v
...
3d 1198 (2010)



Snyder v
...
09-751 (2011)



Robinson v
...
S
...
S
...
Brown, 381 U
...
437 (1965)



U
...
v
...
2d 250 (1989)



Connally v
...
, 269 U
...
385 (1926)



Bolling v
...
S
...
Virginia, 388 U
...
1 (1967)



Gitlow v
...
S
...
Des Moines Independent Community School District, 393 U
...
503 (1969)



R
...
V
...
St
...
S
...
of California, Inc
...
FCC, 492 U
...
115 (1989)



Schenck v
...
S
...
S
...
New Hampshire, 315 U
...
568, 572 (1942)



Lewis v
...
S
...
Wilson, 405 U
...
518 (1972)



Brandenburg v
...
S
...
Black, 535 U
...
343 (2003)



Roth v
...
S
...
Pap’s A
...
, 529 U
...
277 (2000)



Gonzales v
...
Ct
...
Simmons, 543 U
...
551 (2005)
Saylor URL: http://www
...
org/books

Saylor
...
Wainwright, 477 U
...
399 (1986)



Atkins v
...
S
...
California, 538 U
...
11 (2003)

Chapter 4 "The Elements of a Crime"


State ex rel
...
Thirteenth Jud
...
, 995 P
...
California, 370 U
...
660 (1962)



Powell v
...
S
...
State, 998 S
...
2d 363 (1999)



Staples v
...
S
...
S
...
U
...
, 342 U
...
246 (1952)



State v
...
3d 97 (2007)



State v
...
3d 466 (2010)



Dean v
...
S
...
Ct
...
State, 775 A
...
1043 (2001)



Commonwealth v
...
293 (1999)



State v
...
E
...
Sowry, 155 Ohio App
...
U
...
, 572 A
...
Slayton, 154 P
...
Kanavy, 4 A
...
S
...
Grajeda, 581 F
...
Roberts, 826 P
...
of Virgin Islands v
...
2d 169 (1960)



State ex rel
...
Thirteenth Jud
...
, 995 P
...
U
...
, 308 F
...
Davis, 84 Conn
...
505 (2004)



U
...
v
...
S
...
McDaniel, 24 Cal
...
Ely, 444 N
...
2d 1276 (1983)
Saylor URL: http://www
...
org/books

Saylor
...
Huff, 469 A
...
State, 890 So
...
Burkhart, 565 S
...
2d 298 (2002)



Hoagland v
...
3d 1043 (2010)



Rodriguez v
...
W
...
Babbitt, 49 F
...
2d 1165 (1998)



Menendez v
...
3d 1012 (2005)



Tennessee v
...
S
...
Alexander, 531 S
...
2d 567 (2000)



Dutton v
...
03-06-00438 (2008)



People v
...
App
...
Daoud, 141 N
...
142 (1996)



Donaldson v
...
App
...
State, 417 S
...
2d 699 (1992)



State v
...
2d 1118 (1992)



Allison v
...
2d 1377 (1991)



Roy v
...
3d 691 (1994)



U
...
v
...
S
...
United States, 164 U
...
388 (1896)



Graham v
...
S
...
Rogers, 912 S
...
2d 670 (1995)



State v
...
2d 889 (1982)



State v
...
2d 720 (1982)



State v
...
2d 1358 (1993)



Bechtel v
...
2d 1 (1992)



State v
...
3d 808 (2006)



State v
...
2d 759 (1984)



People v
...
W
...
saylor
...
org
598



Commonwealth v
...
08-P-2094 (2010)



State v
...
WA, (Wash
...
2010)



People v
...
3d 470 (1974)



State v
...
2d 38 (2004)

Chapter 6 "Criminal Defenses, Part 2"


Durham v
...
S
...
2d 862 (1954)



U
...
v
...
2d 969 (1972)



State v
...
2d 45 (1993)



State v
...
E
...
Register, 60 N
...
2d 270 (1983)



Garnett v
...
2d 797 (1993)



Sosa v
...
3d 644 (2004)



Farley v
...
2d 393 (2003)



Clark v
...
S
...
Ramer, 86 P
...
Garcia, 87 P
...
State, 783 S
...
2d 811 (1990)



U
...
v
...
Supp
...
State, 688 N
...
2d 408 (1997)



U
...
v
...
2d 985 (1987)



Queen v
...
200, 2 Eng
...
718 (H
...
1843)



State v
...
2d 488 (1983)



State v
...
2d 1279 (1978)



State v
...
2d 1314 (1990)



State v
...
2d 727 (1954)



Kent v
...
S
...
State, 69 A
...
Olsen, 685 P
...
Barraza, 23 Cal
...
saylor
...
org
599



Graham v
...
Ct
...
Co
...
U
...
, 212 U
...
481 (1909)



State v
...
W
...
Premier House, Inc
...
Y
...
Life Care Centers of America, Inc
...
826 (2010)



U
...
v
...
3d 1140 (2001)



State v
...
2d 427 (1980)



Collins v
...
2d 1036 (1983)



State v
...
2d 712 (1999)



U
...
v
...
E
...
, 562 F
...
Melvin, No
...
Merida-Medina, 191 P
...
Guminga, 395 N
...
2d 344 (1986)



Staten v
...
2d 622 (1988)



Commonwealth v
...
2d 20 (2000)



People v
...
App
...
Lauria, 251 Cal
...
2d 471 (1967)



Bogdanov v
...
2d 247, 251 n
...
U
...
, 447 U
...
10 (1980)



State v
...
2d 38 (1979)



Joubert v
...
W
...
Hart, 176 Cal
...
3d 662 (2009)



U
...
v
...
S
...
State, 207 Tex
...
LEXIS 6139 (2007)



Rex v
...
397 (1784)



Rex v
...
Rep
...
B
...
Withrow, 8 S
...
3d 75 (1999)

Saylor URL: http://www
...
org/books

Saylor
...
Strand, 539 N
...
2d 739 (1995)



Pinkerton v
...
S
...
S
...
Blackmer, 816 A
...
Roux, 350 A
...
Han, 78 Cal
...
4th 797 (2000)



Planter v
...
W
...
Dennis, 340 N
...
2d 81 (1983)



U
...
v
...
2d 232 (1991)



People v
...
Y
...
2d 443 (2008)



State v
...
App
...
Pinson, 895 P
...
State, 337 Md
...
Luna, 170 Cal
...
4th 535 (2009)



Commonwealth v
...
App
...
250 (2001)



People v
...
2d 697 (1983)



Hamiel v
...
W
...
S
...
Mandujano, 499 F
...
5, (1974)



Dennis v
...
S
...
S
...
Bond, 49 Conn
...
183 (1998)



State v
...
2d 721 (1981)



State v
...
602 (1991)



U
...
v
...
3d 761 (1993)



Ianelli v
...
S, 420 U
...
770, 785 (1975)



Callanan v
...
S
...
S
...
U
...
, 159 U
...
590 (1895)



Commonwealth v
...
737 (1997)

Chapter 9 "Criminal Homicide"


People v
...
3d 811 (2004)



Washington v
...
S
...
saylor
...
org
601



U
...
v
...
2d 1163 (1988)



State v
...
W
...
S
...
Downs, 56 F
...
Anderson, 666 N
...
2d 696 (2003)



Enmund v
...
S
...
Superior Court, 208 Cal
...
3d 783 (1989)



Dowda v
...
2d 714 (2000)



Stevens v
...
E
...
State, 374 A
...
Superior Court, 47 Cal
...
Taylor, 86 P
...
Evangelista, 353 S
...
2d 375 (1987)



Wood v
...
E
...
Warmke, 879 A
...
Watson, 501 A
...
Prunty, 59 F
...
Wilbur, 421 U
...
684 (1975)



People v
...
2d 442 (1999)



Keeler v
...
3d 619 (1970)



Washington v
...
S
...
Carines, 597 N
...
2d 130 (1999)



Acers v
...
S
...
State, 835 So
...
Anderson, 447 P
...
Snowden, 313 P
...
Carroll, 412 Pa
...
Schrader, 302 SE 2d 70 (1982)



Kennedy v
...
Ct
...
Hoang, 755 P
...
saylor
...
org
602



People v
...
Y
...
Canola, 73 N
...
206 (1977)



People v
...
2d 487 (2005)



People v
...
2d 225 (2002)



Ohio v
...
3d 630 (1992)



Girouard v
...
2d 718 (1991)



State v
...
C
...
Doub III, 32 Kan
...
2d 1087 (2004)

Chapter 10 "Sex Offenses and Crimes Involving Force, Fear, and Physical
Restraint"


State v
...
2d 1092 (2008)



Toomer v
...
State, 323 SW 3d 540 (2010)



State v
...
W
...
Henson, 259 N
...
2d 769 (1970)



State v
...
State, 676 S
...
2d 766 (2009)



Commonwealth v
...
2d 1094 (2003)



U
...
v
...
S
...
Rangel, 934 P
...
U
...
S
...
Louisiana, 128 S
...
2641 (2008)



Lawrence v
...
S
...
Vander Esch, 662 N
...
2d 689 (2002)



Boro v
...
App
...
, 29 Cal
...
Borthwick, 880 P
...
Lile, 699 P
...
Mayberry, 542 P
...
saylor
...
org
603



State v
...
2d 113 (1997)



Associated Press et
...
v
...
S
...
T
...
, 609 A
...
Liberta, 64 N
...
2d 152 (1984)



Michael M
...
Superior Court, 450 U
...
464 (1981)



Lawrence v
...
S
...
Matthews, 205 PA Super 92 (2005)



People v
...
Commonwealth, 676 S
...
2d 332 (2009)



Commonwealth v
...
526 (2010)



People v
...
2d 866 (2006)

Chapter 11 "Crimes against Property"


State v
...
W
...
Traster, 111 Cal
...
4th 1377 (2003)



U
...
v
...
3d 830 (2006)



State v
...
E
...
Pratt, 656 N
...
2d 866 (2002)



Butler v
...
Court of Appeals, 2009)



In the Matter of V
...
C
...
04-07-00166 CV (Tex
...
Beaver, 186 Cal
...
4th 107 (2010)



State v
...
29, 641 (NM: 2011)



People v
...
W
...
Commonwealth, 667 S
...
2d 763 (2008)



Commonwealth v
...
387 (2002)



Itin v
...
3d 129 (2000)



In the Matter of Schwimmer, 108 P
...
Lueth, 660 N
...
2d 322 (2002)



People v
...
App
...
saylor
...
org
604



People v
...
App
...
U
...
, 161 U
...
306, 313 (1896),



U
...
v
...
2d 704 (1989)



S
...
v
...
2d 1088 (1987)



State v
...
2d 641 (1992)



Jones v
...
2d 346 (1995)



Metheny v
...
2d 1088 (2000)



Williams v
...
W
...
Hallums, 61 Mass
...
Ct
...
Nible, 200 Cal
...
3d 838 (1988)



State v
...
3d 582 (2000)



People v
...
App
...
Allen, 110 P
...
Reavis, 700 S
...
2d 33 (2010)



People v
...
4th 76 (2001)



Ursulita v
...
A10A1733 (Georgia 2011)

Chapter 12 "Crimes against the Public"


People v
...
4th 1090 (1997)



Papachristou v
...
S
...
Russell, 890 A
...
Hoffstead, 905 N
...
S
...
Morales, 527 U
...
41 (1999)



Ortiz v
...
3d 149 (2009)



People v
...
App
...
State, 153 S
...
3d 402 (2005)



People v
...
90962, (Ohio 2120 2009)



Love v
...
App
...
State, 395 S
...
2d 816 (1990)



Silvar v
...
Ct
...
3d 682 (2006)
Saylor URL: http://www
...
org/books

Saylor
...
Superior Court, 41 P
...
Bradshaw, 98 P
...
City of Seattle, 97 F
...
State, 83 P
...
State, 25 So
...
W
...
State, 24 P
...
Kentucky, 407 U
...
104 (1972)



Edwards v
...
S
...
Morales, 527 U
...
41 (1999)



Kolender v
...
S
...
Peterson, 225 F
...
City of Los Angeles, 444 F
...
Sanchez, 888 N
...
S
...
California, 370 U
...
660 (1962)



People v
...
App
...
Raich, 545 U
...
1 (2005)



U
...
v
...
S
...
S
...
Adcock, 558 F
...
S v
...
U
...
, 330 U
...
631 (1947)



Cramer v
...
S
...
S
...
U
...
, 354 U
...
298 (1957)



U
...
v
...
2d 580 (1986)



In re Squillacote, 790 A
...
Reno, 205 F
...
U
...
Department of Justice, 352 F
...
Carr, 172 Conn
...
saylor
...
org
606



People v
...
Y
...
2d 274 (2003)



Kawakita v
...
S
...
S
...
S
...
Rosen, 445 F
...
2d 602 (2006)



Schultz v
...
W
...
Nelson, 350 U
...
497 (1956)



U
...
v
...
3d 236 (2010)



State v
...
App
...
S
...
Gaudin, 515 U
...
506 (1995)



Clinton v
...
S
...
saylor
...
org
607



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