Prof. Uelman

1. Justification and Excuse/ Self Defense

1. Self Defense- General right to defend one’s self from unlawful force

1. Elements

1. Reasonable Belief

• D. must have reasonable belief that force is reasonable

1. Imminent

• Threatened harm must be imminent

1. Unlawful

• Harm must be a unlawful nature
• Other party must be committing a crime or tort

1. Reasonable Force

• Use of force can be no more then what is reasonably necessary. To defend against the threatened harm

1. Retreat

• (Some states + MPC) D must not have been in a position from which they could have retreated with complete safety. Except from your own home

1. Deadly Force

1. Basic Rule:

• Deadly force can only be used when a person believes the aggressor is about to use deadly force against them

1. Aggressor of force

• The person who initiates the conflict with deadly force may not retaliate with deadly force as a defense.
• If the initiating force is non-deadly, then aggressor may use deadly force when the other party also uses deadly force.

1. Battered Wife Syndrome(State vs. Leidholm)

• When a women kills her spouse to protect herself from ongoing battery by the man, the courts usually do not change the rules of self defense.
• However, If D’s had a subjective belief of harm that was not objectively unreasonable, she can be convicted only of manslaughter.

1. Defense of Others

1. Common Law View/Majority(Stand in Shoes Test)

• A person may use force to defend another in roughly the same circumstances in which he would be justified in using force in his own defense

1. MPC/Minority Standard

• As long as D’s belief that unlawful force is being used against the aidee is reasonable, D’ may claim defense of others, even though he may be wrong.

1. California’s Standard

• Uses the majority standard CPC § 197(3)
• Except: When it’s a relationship where you have a duty to protect, then apply the minority reasonableness standard.

1. Deadly Force by Law enforcement

1. Traditional Common law

• Any FELON could be apprehended with deadly force

1. Modern Majority( Tennessee v. Garner)

• A cop may not seize an unarmed non-dangerous person using deadly force.

1. Defense of Property

• A person has a limited right to use force to defend his or her property against a wrongful taking

1. Defense of Dwelling

• Common Law/CA- Deadly Force O.K. if there is a breaking and entering(Ca. Assumes reasonable fear in this case)
• MPC- Only where a person reasonably believes the person would be justified in using deadly force if they were actually there

1. Spring Guns/Traps

• Common Law- Mechanical devices can be used if the person would be justified in using deadly force if they were actually there.
• MPC- No mechanical devices that could cause serious injury or death.

1. Necessity

• Justifiable when the person acts with the reasonable belief that their perpetration of an offense will prevent the occurrence of a greater harm or evil.

1. MPC- Choice of Evils

• Conduct is justified if evil avoided is greater than the evil the law is trying to prevent

1. Exceptions- No defense if;

• The person negligently or recklessly did the act. Only if they purposefully did the act can they use the defense of necessity.
• No justification for the taking of an innocent life

1. Examples

• Drug Cases, medical Marijuana

1. Duress

• The defense holds when a person reasonably believes that unless they commit a crime he or a 3^rd person would suffer imminent injury or death.
• Not an excuse for murder

1. Insanity as a Defense

1. The defendant is entitled to an acquittal if at the time of the crime, he was so impaired by mental illness to be "insane" within the meaning of the law.

• Competency- Can D stand trial

• Understand proceedings and be able to participate in your own defense. If Comp. Restored then trial can begin again

• Insanity- Mental condition at the time of the crime. Can be both incompetent and insane at trial time

1. M’Naughtan Rule

1. Right from Wrong rule: ½ the states apply this rule. D must show:

• Mental disease or defect
• As a result either: 1) he did not understand the "nature and quality" of his act; or 2) he did not know that his act was wrong.

1. Irresistible Impulse/M’Naughtan Plus Rule

• D can be acquitted even if he knows his act was wrong, but was unable to control his actions to conform them to what he knew was right

1. MPC Definition

• D will be acquitted if he lacks the substantial capacity either to 1) appreciate the criminality of his conduct; or 2) can’t conform his conduct to the requirements of the law.

1. Intoxication to Show

1. General Rule

• Defense only if it shows D lack the specific intent required for the charged crime. No defense to Malice or Recklessness

1. MPC

• D. will be acquitted if intoxication negates an element of the offense.

1. Diminished Capacity

1. General Rule

• D’s capacity was so diminished that he could not have formed the requisite mens rea

1. MPC

• Can’t use evidence of mental illness to negate the defendant’s capacity, but can be used to show if the defendant actually did form the mens rea required for the crime

1. Procedure After Verdict

1. Acquittal

• D is hospitalized

1. Guilty but Mentally Ill

• Sentenced under normal guidelines, will receive necessary treatment.

1. Inchoate Crimes

• An attempt consists of two elements; 1) a specific intent to commit the crime, and 2) an overt act in furtherance of that intent.

1. Intent

• Must have a purpose to commit the crime
• Can’t have intent for reckless or negligent crimes

1. Act( 3 approaches)

• Last Act- D had to do the last act they believe necessary for the crime

• Substantial Step- A substantial step has to be taken beyond mere preparation
• Unequivocally Test(res ipsa) D’s acts themselves show the he is going to commit the crime
• An informant is sufficient for the substantial step approach

1. Defenses

1. abandonment- an affirmative defense

• involuntary- not a defense
• Voluntary- Common does not allow; MPC allows it, conscience must be motivating factor.

1. Impossibility

1. Legal impossibility(a Defense)

• Where the act if complete would not be criminal

1. Factual impossibility(Not a Defense)

• Where a basic or substantive crime is impossible to complete because of some physical or factual condition unknown to the D

1. Solicitation

• Encouraging another to commit a felony or serious misdemeanor with the intent that the others commit the crime

1. Elements

1. Intent

• D. must act with the purpose of causing the person to commit the crime

1. Act

• Counseling, inciting, or inducing of another to commit a crime

1. Proof

• You need (2) witnesses or (1) witness and corroborating evidence

1. Defenses

1. Impossibility

• Same as attempt

1. Abandonment

• None at Common Law; MPC if you "see the light" and Try to thwart the crime

1. Merger

• Solicitation mergers into conspiracy, attempt, and the complete crime

1. Complicity

• A defendant can be convicted as a accomplice if he, intending that the crime be committed, aids, abets, facilitate or encourages the perpetrator in the commission of the crime.

1. Degrees

1. Present at the Crime

1. Principle in the 1^st degree

• Actually commits the act

1. Principle in the 2^nd degree

• Aids or assists at the scene

1. Not Present at the Crime

1. Accessory before the fact(Principal)

• Aids or assists before the crime

1. Accessory after the fact

• Aids or assists after the crime
• Requirements: 1) Completed felony; 2) Knowledge of the felony; 3) Aid to the felon

1. Mens Rea

1. Purpose

• Accomplice must act with purpose of helping the perpetrator commit the crime

1. Knowledge

• In some cases knowledge will be sufficient

1. Defenses

1. Inciter

• Communicate withdrawal

1. Aider

• Countermanded prior aid

1. Lauria Test applies

• Knowledge is enough if the crime is a serious 1^st or 2^nd degree felony

1. Conspiracy

• Conspiracy at common law is: 1) An agreement between two or more persons; 2) with an intent to enter into an agreement; and 3) with an intent to achieve the objective of the agreement

1. Elements

1. Intent

1. Purpose

• Specific intent- must have person agree

1. Knowledge

• Sometimes an agreement can be inferred from knowledge
• Knowledge can be shown when; 1) seller has a stake in the venture; or 2) No legitimate use for the good provided; or 3) Volume of business is grossly disproportionate to any legitimate demand.

1. Act- entry into the agreement

1. Agreement- can be inferred(Larua Case) from concert of action

• California Rule- Object of agreement must be unlawful, criminal, or injurious to public health or morals
• MPC Rule- Object of the agreement must be a crime

• Common Law Rule- Object of agreement must be unlawful or criminal

1. Required Act

• Majority Rule- Overt Act- Requires some additional overt act be done in furtherance of the agreement. It can be a preparatory act, does not have to be criminal
• Minority/ Common Law Rule- Agreement only

1. Withdrawal

1. Majority Rule

1. Before overt Act

• There would be no conspiracy, so no liability

1. After overt Act

• A person can withdraw and still be liable for the conspiracy, but not for the substantive crime in furtherance

1. Shown by

• Manifesting a complete renunciation that thwarts success. You must actually try to prevent the conspiracy

1. MPC Rule

• You can withdraw and not be liable for the conspiracy or any subsequent crimes

1. Scope of Liability

1. Majority Rule- Pinkerton Rule

• Each conspirator can be held liable for acts of every other conspirator done in furtherance of the conspiracy that are foreseeable party of the conspiracy.

1. MPC Rule

• You’re only liable for the ‘object crime’ and any other crimes that you commit. Pinkerton does not apply

1. Merger

1. Common Law Rule

• Does not merge

1. Minority/ MPC Rule

• Merges unless it’s a continuing conspiracy

1. Defenses

1. Common Law/Wharton’s Rule

• If a crime by definition can only be committed if two or more persons participate, there can be no conspiracy to commit that offense if the only parties to the agreement are those who are necessary to its commission. "Two to Tango" idea (MPC rejects)

1. Majority/ Powell Doctrine

• If the crime is the agreement to commit a crime and you had no knowledge that it was illegal you are still liable if you know that the object is criminal.

1. Unilateral v. Bilateral

1. Majority

• If there was never a true agreement, i.e. One party fakes, then no conspiracy

1. MPC

• Unilateral conspiracies are allowed

1. Multiple Parties

1. Wheel conspiracies

• A ring leader participlates with each of the conspirators, but these conspirators deal only with the ring leader, not with each other.

1. Community of interest test- A single conspiracy(all responsible) if;

• 1) each spoke knows that the other spoke exists and 2) the various spokes have, and realize that they have, a community of interest.

1. Chain conspiracies- There is a distribution of a commodity(drugs). Test for single conspiracy is same as wheel, in that links have and know about a community of interest.

1. Party who comes into conspiracy late, or leaves early

• Late: Will become part of conspiracy if he is not only told about the conspiracy but also accepts it.
• Early: Will be liable for acts that occur later only if acts are fairly within the confines of the conspiracy as existed at the time of departure.

1. Theft Crimes

• Any amount over $400 is grand theft, except for avocados and other farm crops, where the amount is $100.

1. Larceny

1. Larceny- The tresspassorial taking and carrying away of property in possession of another with the intent to permanently deprive the owner thereof. Elements:

• Tresspassorial
• Taking- of possession
• Carrying Away
• Personal Property
• Intent to permanently deprive- At the time of taking

1. Larceny by Trick- A person who fraudulently induces another to voluntarily de3liver possession of property with the intent to permanently deprive the owner thereof. Elements:

• Consent- By false representation of a fact or false promise
• Taking- of possession
• Carrying Away
• Personal Property
• Intent to permanently deprive- at the time of taking

1. Defenses

• Claim of right
• Intent to return

1. False Pretenses- (Con-man)- Obtaining property by fraudulently inducing the victim to voluntarily deliver title of property with the intent to defraud.

• Consent- By false representation of an existing fact
• Taking – of title- determined by victims intention
• Carrying Away
• Personal Property
• Intent to Defraud- Doesn’t have to permanently deprive

• Claim of right

1. Embezzlement- Converting to one’s own use property from a person with whom the defendant has a fiduciary relationship with the intent to defraud(Entrusted for a limited purpose and used for your own use)

1. Elements

• Lawful possession
• Use
• Conversion
• Intent to defraud- doesn’t have to permanently deprive

1. Defenses

• Claim of Right

1. Extortion- Property taken by means of a future threat. Obtaining property from another with his consent induced by the wrongful use of force or fear or under color of official right

1. Types of Threats

• Unlawful injury of the victim or 3^rd party
• Reveal a crime of the victim or relative
• Impute a deformity, disgrace or crime on the victim
• Reveal a secret

1. Notes:

• Even if the purpose is to collect a just indebtedness, the means of extortion is still a crime. You can threaten a civil action but not to reveal a criminal act
• The item must be acquired or its just an attempt
• Public officials: Court found that the payments must be made for an explicit promise in order to be criminal.

1. Robbery- All the elements of a larceny(Tresspassory taking and carrying away of property in possession of another with the intent to permanently deprive. AND

• Property must be taken from the person’s presence; and
• The taking must be accomplished by imminent force or threat of force

1. Burglary-

1. Common Law- The breaking and entering of the dwelling house of another in the night time with the intent to commit a felony therein. 5 elements:

• 1) The breaking and 2) entering of 3) the dwelling of another 4) at night 5) with the intent to commit a felony therein.
• Policy- Protect sanctity of the home

1. Modern CA Rule- Every person who enters any type of structure of another(implied by case law) with the intent to commit any petty theft, grand theft or felony is guilty of burglary. 3 elements:

• The entering of 2) any type of structure(w/roof) with 3) intent to commit any theft or felony.
• Exception- If a person allows you in and knows your intent is to commit a crime therein, it is not a burglary.
• Thefts don’t merge with burglary

451. A person is guilty of arson when he or she willfully and maliciously sets fire to or burns or causes to be burned or who aids, counsels, or procures the burning of, any structure, forest land, or property. (a) Arson that causes great bodily injury is a felony punishable by imprisonment in the state prison for five, seven, or nine years. (b) Arson that causes an inhabited structure or inhabited property to burn is a felony punishable by imprisonment in the state prison for three, five, or eight years. (c) Arson of a structure or forest land is a felony punishable by imprisonment in the state prison for two, four, or six years. (d) Arson of property is a felony punishable by imprisonment in the state prison for 16 months, two, or three years. For purposes of this paragraph, arson of property does not include one burning or causing to be burned his or her own personal property unless there is an intent to defraud or there is injury to another person or another person's structure, forest land, or property. (e) In the case of any person convicted of violating this section while confined in a state prison, prison road camp, prison forestry camp, or other prison camp or prison farm, or while confined in a county jail while serving a term of imprisonment for a felony or misdemeanor conviction, any sentence imposed shall be consecutive to the sentence for which the person was then confined.

• For full and complete discussion see section 451 at http://california.findlaw.com/ca01_codes/cacode.html