• crime
• tort
• felony
• misdemeanor
• federal system
• state systems of government
• common law - origin of criminal law
• sources of criminal law
• U.S. Constitution
• State Constitutions
• State Codes & City Codes
• US Criminal Code
• Stare Decisis (case precedent)
• Model Penal Code
• Rule of Law
• Statutes
• Malum in se
• Malum prohibitum
  
  

A defendant is ensnared into the criminal justice system as the result of being charged with a particular crime. Charges can result from grand jury indictments or the filing of a formal complaint! A grand jury indictment is the result of the presentation of evidence (by a prosecutor) to the members of the grand jury (in California, the grand jury is comprised of 23 jurors) and the jurors voting (by a majority) to return an indictment. The reason that a case is submitted to the grand jury is often political in that the prosecutor does not want to endure the 'fallout' that would result if charges are brought via the filing of a formal complaint.

Filing of Formal Complaint

The procedure for filing a formal complaint is a very simple one. It entails nothing more than a prosecutor - being presented with evidence of an alleged crime - and deciding to file charges. The decision often rests with the one prosecutor who is presented with the evidence. The evidence presented is often in the form of a police report which contains statements furnished by witnesses and the observations (if any) of the arresting officer. This means of generating a criminal lawsuit has its obvious perils. Often times the witnesses statements are inaccurate or fabricated. If this happens, a person will be wrongfully accused if charges are filed.

Grand Jury Indictment 1 2

A person who is charged by way of an indictment has protections (procedural safeguards) that don't exist if charges are filed by a formal complaint. Witnesses testify before the grand jurors and the prosecutor presents other relevant evidence. Thus, the grand jurors have the opportunity to observe the witnesses and judge their credibility before deciding on whether to return an indictment. A majority of the grand jurors must vote in favor of the indictment. The grand jurors act as a wedge between the state (prosecution) and the defendant. Contrast this to what occurs when one prosecutor decides against or in favor of filing formal charges. There exists no wedge between the prosecution and the prospective defendant. The opinion of one person (the prosecutor reviewing the case) is all that there is to determine what will happen.

Preliminary Hearings

Preliminary hearings are mini evidentiary hearings to which an accused is entitled if criminal charges resulted from the filing of a formal complaint and the charge is a felony. If an accused is charged by way of a grand jury indictment, there is not right to a preliminary hearing. Why is this so? The answer should be somewhat obvious and is that our system of criminal justice provides safeguards along the way so as to ensure that the accused will receive a fair disposition and trial of the lawsuit. Preliminary hearings are designed to serve the purpose of protecting the rights of an accused by furnishing a mechanism whereby groundless charges get dismissed during the very early stages of the criminal lawsuit!

The prosecution presents evidence to a judge (there are no juries at the preliminary hearing stage of the proceedings) who decides whether the evidence is sufficient to order the accused to stand trial. If the evidence appears insufficient, the judge will dismiss the charges. The quantum of evidence required for a judge to order an accused to stand trial is that amount of evidence which creates a reasonable suspicion that a crime was committed and that the accused committed it. This is less than the quantum required to convict an accused. The amount required to convict the accused in evidence that establishes beyond a reasonable doubt the guilt of the accused.

Double jeopardy forbids the prosecution from re-trying a defendant who was previously acquitted! In other words, a defendant cannot be placed twice in jeopardy for the same crime! Jeopardy does not attach after the charges against an accused have been dismissed at the preliminary hearing. After a dismissal, the prosecution may refile the identical charges! In fact, this can happen several times.

Nor does jeopardy attach when a defendant has been tried and acquitted on state charges and is then prosecuted on federal charges or vice versa. According to the concept of Dual Sovereignty, the US Federal Government is one government entity and the 50 state governments are separate sovereignties. Thus, a defendant who is acquitted on federal bank robbery charges (of the alleged robbery of a federally insured bank in state X, can be tried a second time by state X for bank robbery).

Our system of criminal justice also protects our citizens from the application of Ex Post Facto laws! An ex post facto law is one that results in:

• the prosecution of a person for an act that was not a crime when the act was committed
• a change in the requirement of evidence wherein less evidence to convict is required than when the accused
  committed the alleged act
• a change in punishment standards, wherein the punishment sought is greater than the allow allowed at the time the alleged crime was committed

It is important to understand the chronological path that a criminal lawsuit follows. Below is the order of progression of a criminal lawsuit:

• Suspect is questioned then arrested
• Suspect is charged (formally or via grand jury indictment)
• Suspect is arraigned
• Pre trial motions (including bail motion) are filed and heard
• A preliminary hearing is held (only if defendant was formally charged of a felony)
• Additional pre trial motions are filed and heard
• Trial occurs (either trial by jury or trial by court- if jury is waived)
• Verdict is rendered or a mistrial (1) is declared
• Decision is possibly appealed (not all are)
• Appellate court affirms, reverses or remands the case
• Remember, a verdict of not guilty does not suggest that the trier of fact (judge if court trial, jury if a jury trial) concluded that the accused was innocent! A not guilty verdict suggests that the trier of fact may have believed that the accused was innocent but more than likely that the trier of fact believed that the prosecution failed in the attempt to prove the case beyond a reasonable doubt!

Comparisons between criminal and civil cases

There are many similarities between a crime and a tort and there are many dissimilarities. Crimes are wrongs against the state and torts (civil wrongdoing) are acts against a particular person or person's property. Crimes are prosecuted and civil actions are litigated. A civil case results in a judgment and a criminal case results in a verdict. As a general rule, there must be a unanimous vote by the jurors to reach a verdict in a criminal case. In a civil case a unanimous vote is not required, in fact a vote of 9 to 3 will suffice! The burden of proof is not the same either. As previously noted, in a criminal case there must be proof beyond a reasonable doubt whereby a civil case requires proof by a preponderance of the evidence.

1. John Smith vs. Fred Jones
2. US vs. Bob Green
3. The People of the State of California vs. Bob Brown
4. Acme Corporation vs. Texaco Corporation
5. Of the above examples (1-4), 1 and 4 are captions for a civil lawsuit and 2 and 3 are captions for a criminal lawsuit.
6. The plaintiff's name appears first in both criminal and civil lawsuits.

7. This would be the caption for the criminal lawsuit against O.J.Simpson. In your text it would be set forth different because of space constraints.

PEOPLE OF THE STATE OF CALIFORNIA, vs. ORENTHAL JAMES SIMPSON

LOUIS BROWN AND FRED GOLDMAN vs. ORENTHAL JAMES SIMPSON

People of the State of California vs. Orenthal Simpson is how the same caption would appear in the text!

 

• plurality opinion
• concurring opinion
• dissenting opinion
• majority opinion
• minority opinion
• issue of the case
• writ of certiorari
• expressive speech
• clear and present danger
• zone of privacy
• invidious discrimination
• legitimate state interest
• void for vagueness / overbreadth
• affirm / reverse / remand
• appellant / appellee
• due process of law
• ex post facto laws
  

• Void-for-Vagueness
• Equal Protection of the Laws
• The Right to Privacy
• Freedom of Speech
• Cruel & Unusual Punishment
• Ex Post Facto Laws

Nowhere in the US Constitution is there language which prohibits the enactment or enforcement of 'vague' laws! Historically, however, and both in common law England and our first created colonies, the courts would not enforce a vaguely drafted law! It was the belief of the courts that to enforce such a law would be to deny a criminal defendant a the right to due process of law because such statutes did not adequately apprise citizens of just what was prohibited and gave law enforcement officers far too much discretion (latitude) in the area of enforcement and making arrests. The rule of law that grew from this history and thinking was: "A statute which either forbids or requires the doing of act in terms so vague that men of common intelligence must necessarily guess at its meaning and differ as to its application, violates the first essential of due process of law."

Analyze the underlying:

1. "it is unlawful to be a member of a gang"
2. "....it is unlawful to commit any indecent, immodest or filthy act in the presence of any person..."
3. "Whoever assaults another with a deadly weapon...may be sentenced to prison..."
4. "It is a felony to possess a switchblade or gravity knife...."
5. "Whoever has in his possession any device, gear, or instrument specially designed to assist in shoplifting...may be sentenced to..."
6. "It is unlawful to occupy a bedroom for any immoral purpose"
7. "It is unlawful to engage in ogling, insulting or annoying conduct;;;"

The above examples are taken from you text including the note cases. Can you determine which, if any, would be void for vagueness? A helpful guideline for determining whether a particular law is too vague is to ask your self whether the language of the law may be applied not only to the act in question (i.e., Metzger eating cereal while naked and standing directly in front of a large window while people passed by), an act about which people will have little or no difference of opinion, but equally to other acts about which there may be radical differences? If this can be done then the courts and the police are given far too much arbitrary discretion and power to enforce the law. An example would be two people holding hands or kissing in public. If this can be viewed as immodest then these persons too can be prosecuted under the law.

The Fourteenth Amendment of the US provides, "no state shall deny to any person within its jurisdiction the equal protection of the laws." Some classifications are more carefully and closely reviewed by courts than are others. Since the US Constitution views all persons as equals, the courts will carefully review any classification that is based on what are considered 'immutable characteristics' (those with which we are born such as gender and race). Classifications based on race are obviously more carefully scrutinized than classifications based on gender or age. Although we are, by law, entitled to the equal protection of the laws, we are not entitled to be treated exactly alike! This is an important distinction that you must come to understand. To discriminate between persons (based on age, gender, job description, etc.) is lawful if there is a reasonable relationship between the classification and the desired state objective. However, to discriminate purely based on race, religion or gender is called invidious discrimination and is unconstitutional.

How do we apply the above standard to the cases and statutes that we are studying?

In short, any legislative classification must bear a reasonable relation to the public purpose which the state is attempting to achieve by enforcing the particular law. The following type of formula is often applied to resolve a challenge by a defendant who is alleging a violation of the equal protection clause.

Is a fundamental right involved?

Is the classification suspect or quasi suspect?

Is the classification rationally related to promoting a legitimate state purpose?

As applied to the Allam case: Possessing and smoking marijuana is certainly not a fundamental right. Thus the court is not going to be overly concerned with the impairment of this 'interest. Secondly, the social purpose of protecting minors (17 year olds and under) from a controlled substance is an important one. You can see from reading the case that Alaska has historically been very concerned about minors, alcohol and drugs. Lastly, there existed a rational basis for prosecuting 18 year olds but not 17 year olds or 19 year olds. At 19, Alaska considers a person mature enough to use marijuana. At 17 a person is still a minor and not mature enough to use drugs. At 18, even though technically an adult, the legislature has concluded that one is not mature enough to use drugs. Moreover, an 18 could still be in highschool, and if allowed by law to possess marijuana, could make it available to younger and less mature students which the state has an interest in guarding against!

Review of approach:

1. Identify interest of that the government is attacking (18 year olds possessing and smoking dope) and its importance
2. Identify the social purposes underlying the particular law (making sure that 17 year olds don't have easy access to m/j and to keep 18 year olds from possessing and or using it because they are too immature)
3. Does the government's interest in passing the law fall between a mere legitimacy to a compelling interest?

Although the word 'privacy' appears nowhere in the Constitution, it can be inferred from passages of the 1st, 3rd, 4th and 9th amendments. The idea behind the right to privacy is to keep the government from legislating our conduct within the ultimate zone of privacy, our homes. Alaska, Hawaii and Florida have expressed this right in their own state constitutions. The right to privacy does not give license to commit criminal offenses within the home, but it does limit the scope of criminal prosecution within the home.

Consider whether the government can make it illegal to:

• possess small amounts of marijuana in the home?
• possess pornographic material within the home?
• engage in consenting homosexual activity within the home?

The test to apply is to first question whether the activity being prohibited is a fundamental right and next, whether the state can prove it has a legitimate state interest that it is seeking to protect. If the right that is being targeted is not a fundamental right (such as marijuana possession), then the issue will be whether the activity adversely affects the public interest, either directly or indirectly. In the Ravin case the notion that people smoking marijuana in their own homes could come under its influence and then choose to drive (and injure others) was too attenuated and too indirect to justify the upholding of the law.

Due process of law requires that citizens be placed on notice prospectively as to what is against the law and that the law be clear enough so that persons or average and ordinary intelligence don't have to guess at its meaning. To enforce the criminal law in a retroactive method is a violation of the basic principles of due process of law. In other words, nullum crimen sine lege, nulla poena sine lege, or "no crime without the law and no punishment without the law." A person may not be punished unless her conduct was defined as criminal before she acted. This is the principle of legality. Legality keeps the government in check by preventing it from punishing its enemies by enacting after the fact criminal laws and it gives to its citizens fair warning as to what is and what is not permitted. A bill of attainder is special legislation that declares a specific person guilty of a crime (and subject to punishment) without either a trial or conviction!

Examples of ex post facto government action would be:

• Prosecuting a person for activity that was not criminal at the time the activity occurred
• Modifying the punishment by increasing it and applying this modified standard to a person who committed the crime before the sentencing guidelines were changed
• Changing the rules regarding the evidence required to convict for a particular crime by requiring less evidence and then prosecuting a person for the crime who acted before the changes were made
• If Defendant performs a lawful act on February 1, 2000, he cannot be criminally convicted of the act based on a law passed after the act was performed, or, if Defendant kills victim by acting in self defense, she cannot be convicted of murder by virtue of the legislature abolishing self defense after the killing occurred!

The first amendment of the US Constitution guarantees the citizens of this country "freedom of speech." The speech that we are free to "speak" includes the spoken word, the written word, and symbolic speech. Symbolic speech ("expressive conduct") is conduct that is designed to convey a message. Burning a flag, wearing a patch on one's clothing, displaying a bumper-sticker, etc. would be examples. The concept of free speech (1) does not permit any and all speech under any and all circumstances! That speech creating clear and present danger is not protected by the our constitution. Stated in other words, the Government many not prohibit the expression of an idea simply because society considers the idea (being expressed) itself offensive or disagreeable. The state, without more, cannot criminally punish a person for expressing negative words of the flag!

Note Cases: Review the Note Cases and make a mental note of the types of expression they addressed. Panhandling (begging), nude dancing, and a law that prohibited the opposition, molesting, abusing or interruption of a police officer in the execution of his/her duty.

The very purpose of our right to free speech is eloquently addressed by Justice Brennan in the Johnson case:

"We can imagine no more appropriate response to burning a flag than waving one's own, no better way to counter a flag-burner's message than by saluting the flag that burns, no surer means of preserving the dignity even of the flag that burned than by-as one witness here did- according its remains a respectful burial. We do not consecrate the flag by punishing its desecration, for in doing so we dilute the freedom that this cherished emblem represents."

The Eighth Amendment guarantees protection against cruel and unusual punishment by agents of the federal government on persons convicted of criminal conduct. This right is fundamental and must be followed by the 50 state governments as well. Over 90 years ago our US Supreme Court, in deciding a case, ruled that punishment that was grossly disproportionate to the crime committed was also a violation of the 8th Amendment. The interpretation of the 8th Amendment is somewhat controversial and subject to differing opinions amongst the members of our highest court. In the Harmelin case, a majority of 5 justices voted to affirm Harmelin's conviction but of these, only 3 reasoned (in their concurring opinion) that proportionality still applied to non capital cases.

Note: This is the test that was applied to 8th amendment arguments re: cruel and unusual punishment prior to Harmelin:

1. Gravity of the particular crime compared to the serverity of the penalty
2. Penalties imposed within the state for similar offenses (intra-juridicitional)
3. Penalties imposed in other states states for similar offenses (inter-jurisidictional/objective)

The Harmelin concurring opinion seems to say that from now on #1 (above) will be considered and if court believes crime to be a serious offense, it will not examine #s 2 & 3. If #1 suggests that the non capital crime is not a particularly serious one, then 2 and 3 will be explored.

• getting drunk in public (the drinking arguably being the result of being an alcoholic)
• striking another twice with an ax while sleepwalking 1
• allowing an unrelated child to be placed in danger to life and limb (see below under omission to act)
• to do nothing while an unrelated neighbor is being viciously raped and stabbed (see below under omission to act) 1
• to accompany a minor - who possess illegal drugs - on a plane flight and through an airport when the minor is under one's control
• to have drugs in one's pocket with knowledge (see below)
• while driving a car suffering an epileptic seizure and losing control of the vehicle and killing several persons
• killing a friend as the result of putting a gun to friend's head, cocking the hammer, and having thumb 'slip' off
• holding up a bank while under the influence of hypnosis
• brutally stomping an inmate while in a state of automatism ( having no conscious and willful control over one's actions)
• a threat made to victim to "cut victim's head off"

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Chapter 4: General Principles of Criminal Liability: Mens Rea, Concurrence, Causation, pg. 117

• Defendant knowing he was HIV positive had unprotected sex with several partners after being informed about the dangers of doing so
• Defendant, a prisoner, intentionally jumped from a truck transporting him back to jail, for the purpose of seeing if another inmate had been injured. Defendant had no intention of trying to escape
• Defendant incited victim and then ran away with his open knife held in his hand. Defendant was pursued by victim and hid in the bushes to avoid being seen. Victim jumped on top of defendant who rolled over an inadvertently stabbed victim.
• Defendant was in process of stealing items from victim's car. Victim attempted to stop defendant who in turn struck victim several times with a tire iron. Did the defendant commit a robbery?
• Defendant, who believed in the powers of mind over matter attempted to stop victim's heartbeat and breathing by plunging knives into his chest without causing injury. Defendant had before accomplished this feat. Unfortunately, the victim's heart and breathing did stop - FOREVER!
• Defendant, while playing a "game" with the victim, had victim hold his hands and arms extended and apart to see if defendant could draw his pistol from his holster and place the gun between victim's hands before victim could close them together. The gun accidentally discharged, killing the victim.
• Corporate officers were charged in the death of its employees because the officers required the employees to continue their work even though the officers knew that the conditions in the plant created the hazard of an explosion.
• Defendant placed a loaded gun near the head of the victim and cocked it, threatening to shoot her. She slapped away Defendant's hand and the gun discharged killing her.
• Defendant, who was very experienced in the use of handguns, took a loaded gun from a nightstand and was passing it back and forth from hand to hand when it discharged and killed his wife.

• the legal cause must be substantial
• the legal cause will not be extended beyond where the consequences of the defendant's conduct stopped or beyond where the victim was in a position of safety ( victim is forced to stay outside in freezing weather, but reaches her father's home (a zone of safety) and decides to stay outside not wanting to awaken her father. She freezes to death!
• fairness must be taken into account when assessing legal cause ( Defendant negligently runs over victim who is taken to hospital to be treated and dies because an inexperienced nurse administered too much of and the wrong type of medicine)
• coincidental outside forces contributing to the end result will not be imputed to the defendant (homeless person is robbed and badly beaten by defendant but survives and elects to sleep in an abandoned house where he is attacked and killed by another intruder)
• if the harm caused exceeds what the defendant intended, expected or should have expected, the law will generally not hold the defendant criminally accountable (unless the resulting harm is close in degree and kind to that intended)

A defendant is the Direct cause of a result when nothing intervenes between the defendant's conduct and the harm that results. If defendant shot and killed the victim, the defendant would be the direct cause of the victim's death.

An Intervening cause is something in addition to the defendant's conduct that contributes to the resulting harm. Assume that defendant shoots the victim who dies in the hospital due to the negligence of the treating surgeon. The surgery was an intervening cause. An intervening cause that dependent (occurred because of what defendant did) will not cut off a defendant's criminal liability unless it is highly unusual or unforeseeable.

The Model Penal Code requires only that the but for test (see above) be proven and imposes liability unless the resulting harm was so remote or accidental in its occurrence that it would be unjust to hold the defendant responsible. The MPC simply invites the trier of fact to reach a result based on common sense and fairness. An example of this approach would be as follows:

• Defendant is in the process of robbing a bank and the teller is electrocuted attempting to press the burglar alarm. Since death by electrocution is not a probable result of bank robbery, the defendant is not the legal cause of her death. The mens rea requirement in this fact situation would have been met by applying the felony murder rule. We will study the felony murder rule in chapter 9!

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Chapter 5: Parties to Crime: Complicity and Vicarious Liability, pg. 145

Up to this point (chapter 4) we have discussed criminal liability in context of the defendant who produces a resulting harm by committing an act (actus reus) or failing to do so while under a duty to do so and who had the requisite mens rea (purposeful, knowing, reckless or negligent) at the time. Chapter four is a departure from this approach. In this chapter we learn that a person can actually be found criminally liable for the actions of others (vicarious liability) or for conduct that encourages another to commit a crime (aiding and abetting) or for conduct that assists another to avoid being apprehended, prosecuted or punished (accessory after the fact). The defendant's conduct is less direct!

Doctrine of Complicity

A person may participate in a crime either before, during or after the crime is committed. The liability of these persons is determined by the doctrine of complicity. At common law, complicity was broken down into 4 categories, but modernly it is contained in only two: accomplices and accessories after the fact. An accomplice is one who participates either before or during the commission of the crime, and an accessory after the fact is one who participates after the crime has been committed. Accomplices are liable as principals and accessories are liable for separate (and less serious) offenses. The liability of an accomplice and an accessory is based on the person participating in some way. By contrast, a principal in the first degree, is on who actually commits the offense, hence the perpetrator of the crime.

An accomplice is not liable for the separate crime of "aiding and abetting" the crime committed by the actual perpetrator, but of the identical crime committed by the perpetrator. This is based on the theory that an accomplice's liability is derivative in nature which means it is derived from the liability of the party (who commits the crime) with whom he associates himself. For an example, if X aids and abets a murder, he is liable for the crime of murder. If X aids and abets a burglary which is not successfully completed, X is liable for attempted burglary. As you have already seen in the Nguyen case, a person can also be convicted for a crime that was a natural and probable consequence of the criminal conduct that he intentionally assisted. In theory, one who aids and abets another in the commission of a crime, forfeits the right to be treated as an individual and will be liable for the acts he assists and the acts that are the natural and probable consequences.

Principal 1st degree; 2nd degree and accessory

As already mentioned, a principal in the first degree, is one who actually commits the offense, hence he is called the perpetrator of the crime. There is another way by which a person can be a principal in the first degree and which would not require the person to even be present. Assume that X, with intent to steal V's camera, tells Y to go into V's home and get his (X's) camera because X forgot it there. If Y gets the camera for X, the crimes of burglary and theft have occurred and X is liable as a principal in the first degree because he has used an innocent person to commit the crimes mentioned. If X ordered his dog to "attack" the victim, the same result would hold - X would be liable as a principal in the first degree.

To be guilty as an principal in the 2nd degree, it must be proven that defendant was present with intent to assist perpetrator. Examples of this would be acting as a lookout or driving a getaway car. Being either in the presence of the crime (inside the bank while it is being robbed) or outside in the getaway car (constructively present) and in a position to to assist is all that is necessary to convict a person as a principal in the 2nd degree!

An accessory before the fact involves a situation wherein the person is not present in any sense when the crime is committed but has otherwise aided and abetted in its commission (soliciting, encouraging, etc.). At common law, principals in the 1st and 2nd degree were treated alike but accessories were treated differently. At common law, all felonies were punishable by death. The result was to reduce culpability for being an accessory

Manner of Aiding and Abetting

Aiding and abetting can be accomplished via various ways: lending physical assistance; lending psychological assistance or providing assistance by not doing anything (omission). The examples set forth below illustrate physical assistance.

Physical assistance

• providing guns
• providing supplies or other things needed to commit the crime
• acting as a lookout
• driving getaway car
• intercepting warnings to victim

Psychological assistance would result from verbal encouragement such as soliciting, inciting or encouraging. It is often difficult for the trier of fact to know from the evidence whether the words of a person actually did psychologically encourage another to commit the crime. Do you remember the outcome of the Ulvinen case regarding her encouragement of her son and whether it was sufficient to prove her guilty of aiding and abetting?

A failure to act (an omission to act) could constitute aiding and abetting provided the prosecution could prove that the defendant had the required mens rea. A parent -who failed to intervene to protect her youngster from being beaten by a third person - could be convicted of aiding and abetting the crime provided it could be proven that the failure to act was based on a purposeful, knowing, reckless or negligent mens rea.

Accessory after the fact

One who, with knowledge that a crime has been committed, is guilty the crime of being an accessory after the fact if the person helps the perpetrator avoid apprehension, trial, conviction or punishment.

Historical perspective: strict liability

An understanding of the reasons why the theory of strict liability was introduced into the criminal justice system should be helpful to you. Prior to the Industrial Revolution, (mid-nineteenth century), the criminal law was enforced to punish those who committed malum in se crimes such as murder, rape, robbery, etc. These crimes required proof of conduct that was in and of itself wrongful. The Industrial Revolution changed things. It soon came to be realized that conduct that was not necessarily - morally wrong - could still adversely affect members of the public (the public welfare). Legislatures enacted "public welfare offenses" which did not require proof of mens rea. These crimes were considered malum prohibitum which means that they were considered criminal merely because they were prohibited. A few examples are:

• selling alcohol to minors
• motor vehicle laws
• putting impure foods into commerce
  

Legislatures, in enacting the above category of 'crimes' reasoned that the prohibited acts could injure substantial numbers of people (i.e., causing impure food to go into commerce) and thus the requirement of personal moral wrongdoing should be disregarded. As a consequence, the conduct causing this type of thing to occur alone created the liability. These crimes are designed to deter persons from engaging in dangerous conduct that can harm members of the public. The crime of statutory rape (chapter 9) is an example of imposing strict liability to a 'non public welfare' type of crime.

The Model Penal Code disfavors the use of strict liability as a legal theory to convict and requires proof of fault regarding each material element of a crime (thereby impliedly eliminating strict liability) but allows the prosecution and conviction of violations without requiring the proof of a voluntary act and mens rea. A few examples of 'violations' (also called infractions) are set forth above.

• If a corporate employee commits an act with the requisite mens rea and the act is committed within the course and scope of the employees' employment
• If the above act was authorized, requested or recklessly tolerated by upper management
• If the act is for the corporation's benefit rather than personal gain
  
  
  
  

• He honestly believed that he was faced with imminent danger
• The imminent danger faced was either serious injury or death
• The force used was reasonable under the circumstances
• That he was reasonable in his perception of the imminent danger (which means that a reasonable man under similar circumstances would have viewed the circumstances in the same way)
• That he was not the aggressor of the attack

It is important to realize that a defendant who relies on this affirmative defense need only prove that he honestly believed that he was faced with imminent danger. He need not prove that he was faced with actual danger! Another way of saying this is that a person who entertains an honest and reasonable belief in the existence of imminent danger is entitled to a good faith mistake. What if the object which defendant honestly and reasonably believed was a gun was actually only a stick? It makes no difference! Think in terms of the police related shootings wherein a police officer uses deadly force against a suspect because the officer honestly believes that his own life is faced with immediate danger of death. Often times the evidence will establish that the suspect was not even armed but was feigning having a weapon. These type of incidents do not result in a criminal filing against the officer because the facts clearly establish that the officer did in fact honestly believe that the suspect was armed and about to kill.

Deadly force is legal to use if it is deemed reasonable under the circumstances. When is deadly force reasonable? If an individual believes that he is faced with the immediate danger of being killed he can counter the perceived attack by using deadly force himself. It often becomes a question of fact as to whether the facts presented establish that the person was faced with deadly force. However, the line between being faced with deadly force and serious bodily injury is often a very fine one, and in some cases deadly force is permissible to use when there exists imminent danger of serious bodily injury.

Self defense is not about a preemptive attack nor is it about a retaliatory attack. It is about the use of force to protect one against an immediate attack. To shoot someone because that person in the past seriously injured the shooter is not allowed. To shoot someone you believe is planning to kill you at some future time is also not allowed.

Nor is deadly force allowed to protect property or to retrieve property from a person who has unlawfully taken it. Our society places greater value on life than property and it is therefore unlawful to kill when property rights are the issue. When a fact situation presents the use of deadly force against a person who has unlawfully entered a person's home, it can be a tricky issue. In California there is a presumption that one confronted in his or her home by intruder is reasonable in believing that there exists the appearance of imminent danger of death or serious injury. Of course the facts can be such that the presumption is rebutted and the force used was unreasonable under the circumstances. Assume that intruder awakens homeowner who grabs his gun from the nightstand and hurries to the living room where the intruder is halfway out the window and obviously attempting to get away? Deadly force would not be allowed under these circumstances.

There are some other issues that surface in the area of self defense which you should be aware of:

Not all states allow one to stand his ground and used deadly force against an intruder who has entered his home. In some jurisdictions, the law requires the homeowner to retreat if there exists an avenue to do so. These states rationalize that human life is of paramount importance even if the human life at issue is that of a burglar or person who is confronting the homeowner with the specter of imminent danger of serious injury or death.

Law enforcement officers used to be able to use deadly force to capture fleeing felons. The law no longer allows this! Modernly, law enforcement officers are treated like everyone else which means that they can use deadly force only if it is reasonable under the circumstances. It is reasonable when either an officer or a member of the public is faced with the appearance of immediate danger of death or serious injury. Another issue that surfaces involving police officers is the one involving a citizen using force against the officer. Is that legal to do? The answer depends on why the force was used against the officer. Force against an officer by citizen who is being arrested and believes that the arrest is unlawful is not allowed. The only recourse available to the citizen is a civil suit against the offending officer for violation of the citizen's civil right to be free from an unlawful arrest. However, if the circumstances involve an officer who is unjustifiably using force against a citizen, the result is different. Citizens are allowed to protect themselves from unlawful and aggressive attacks by others. If the attack is by a police officer and is not provoked by the citizen, then the citizen may use reasonable force to defend against the attack!

Defense of Others is merely the application of the principles of self defense to situations where force is being used against a person who is threatening immediate harm or death to third persons. Whatever force is reasonable - under the circumstances - including deadly force, may be used against such person. In some states however, this defense is not allowed unless there is proof of some relationship between the person using force and the person being protected. A blood relationship would suffice as would a contractual relationship.

Imperfect Self Defense would apply to circumstances wherein a defendant who honestly believes force is required, uses it, but the trier of fact concludes that the defendant was unreasonable in perceiving the existence of imminent harm. A finding of imperfect self defense would reduce a murder charge to a voluntary manslaughter conviction.

The affirmative defense of necessity allows a person to commit a crime if it necessary to do so to avoid another imminent and greater evil. A person who is intoxicated and faced with imminent danger of death from an attacking robber would be able to rely on the defense of necessity if he chose to get into his car and drive away to avoid the attack. Although driving under the influence is a crime, it is less evil than being murdered. Another way to look at the defense of necessity is to realize that this defense makes it legal to commit a lesser crime to avoid a greater one. Remember that a person who uses the necessity defense must prove that the evil facing him was an imminent one. If A said to B, "You had better kill C right now or else I am going to kill you right now," and B proceeded to strangle C to death, would necessity apply? No! Being killed by A was not a greater evil than taking the life of C. B should have killed A!

Consent is another of the defenses addressed in this chapter, but it has its limitations. You must remember that crimes are acts committed against the general public (People of the State of California vs. Defendant) even though the particular actus reus might affect only one person. Because of this concept, a defendant would not be able to successfully allege consent to a situation involving an anti social act. If W said to H, "if I drink again you can beat me up," and that's just what happened, W could not use consent as a defense to a prosecution for assault and battery. However, if O stated to U, "sure take my car if you need it," U could raise consent if prosecuted for car theft.

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Chapter 8 Defenses to Criminal Liability: Excuses, pg. 274

The Defenses in this chapter if proven would result in a defendant being excused from criminal liability. A verdict would be 'not guilty' but the defendant's conduct would not be considered justified as in the previous chapter.

Insanity (1) if proven would result in a not guilty by reason of insanity verdict (excusing the defendant from criminal liability) and most likely result in mandatory confinement in a state mental hospital. Insanity is a legal concept while mental illness is a medical condition. Legal insanity is different from medical insanity and is an expensive and difficult defense to prove. A very low percentage of insanity defenses succeed! Modernly the burden of proving insanity is on the defendant. When president Ronald Began was shot by John Hinckley, the US government carried the burden of proving - beyond a reasonable doubt - that Mr. Hinckley was sane at the time he acted. The federal law changed as a result of the outcome of the Hinckley case. Presently a person is presumed to have been sane at the time of his or her act. It is now the defendant's burden to prove by a preponderance of the evidence that he was insane at the time of the act.

What is it that the defendant must prove? The defendant must prove that at the time of his/her act he was suffering from a mental defect or disease AND that he as a result of the disease could not distinguish between right and wrong, OR did not appreciate the nature and consequences of the act, OR could not control his actions.

1. Suffered from a mental disease or defect, AND
2. As a result of the mental disease, could not distinguish between right and wrong, OR
3. As a result of the mental disease did not understand the nature and consequences of the act, OR
4. As a result of the mental disease could not control his actions

The defendant must prove 1+2, or 1+3 or 1+4!

Right from Wrong

The right from wrong test applies to what is right according to the laws of our society. In some of the cases and discussion we addressed this point and underscored the fact that right and wrong is not determined by other cultural and religious principles but what our society views as legally right. If Defendant murders his adulterous wife because his Muscovite religion both condones and endorses the killing of an adulterous spouse and the defendant does something to indicate that he understood his act was wrong in this country (changing his bloody clothing) then he is not legally insane. An example of #2 (above) would be a defendant who kills his nephew believing all along that he is murdering an invading vampire. Imagine that he burns the remains in the fire place after removing the heart which he ate. This would be an example of # 3, not knowing the nature and consequences of one's actions. Number 4 is the irresistible impulse factor wherein the mental disease or defect is such that the defendant cannot control the impulse to carry out the particular criminal act.

A Mental disease or defect is a mental condition that must be proven by expert testimony. Psychiatrists and or psychologists will testify for both the prosecution and the defense, one attempting to influence the trier of fact that the defendant was not legally insane and the other attempting to prove the opposite. A defendant's mental history both before and after the alleged criminal act are relevant to proving the defendant's mental condition at the time of the criminal act. Hospitalization, medical consultation, medication patterns and behavior patterns are relevant as well. Paranoid schizophrenia, episode of mania and depression, multiple personality are all examples of a mental disease or defect. Diminished capacity (1) is not an affirmative defense in most states. In California and many other jurisdictions diminished capacity is relevant in proving defendant did not act purposely or during the sentencing phase of the case (in mitigation of punishment) but is not an affirmative defense. Diminished capacity is less than "normal" but more than "insane."

Age (1) (2) has recently drawn a great deal of attention in the press as it relates to criminal proceedings. In Michigan a thirteen year old was prosecuted for murder as an adult. In another jurisdiction an eleven year old was prosecuted for a felony as an adult. In California there is movement afoot to authorize the certification of 14 year olds to adult court for prosecution (the current age is 16). There have also been many recent instances of elderly persons being charged with serious crimes. At common law it was presumed that a person under 7 was incapable of having criminal intent. Persons between 7-14 could be proven to have criminal intent and it was presumed that a person older than 14 could have criminal intent. These cases are treated on a case by case basis. One eighty year old who is lucid and rational would be capable of acting with criminal intent while another who suffers from dementia may not. The same might hold true with regard to youngsters.

Voluntary Intoxication is not an affirmative defense. Voluntary intoxication is relevant, however, in proving that because of the intoxication defendant was not capable of acting with a purposeful mens rea! Remember, in a criminal prosecution, the plaintiff has the burden of proving all of the elements of the particular crime beyond a reasonable doubt. If the defense can show -via cross examination - that the defendant was so intoxicated that he could not form the specific intent to commit a particular crime then the prosecution would lose the case. Affirmative defenses either justify or excuse otherwise criminal behavior. To establish a reasonable doubt by proving that the defendant was too intoxicated to form the requisite mens rea would not amount to an affirmative defense because it would neither justify or excuse the defendant's behavior. It would, however, result in a find of not guilty. It is important that you understand this distinction. Voluntary intoxication occurs incidentally if a person knowingly drinks an alcoholic beverage or ingests mind altering drugs and or narcotics. Involuntary intoxication presents a different picture and is an affirmative defense in most but not all jurisdictions. Involuntary intoxication occurs if a person unknowingly drinks or ingests and becomes intoxicated as a result.

Entrapment is another theory that if proven will excuse a defendant from criminal liability. In essence, entrapment occurs when the state or government induces an otherwise innocent person to commit a crime. What constitutes state/government activity? If the person inducing the defendant to commit the crime is either a police officer, government informant, or some other type of government agent then as a matter of law it will be considered conduct by the state or government. Private persons however can cause entrapment to occur. There are two different standards that are applied to entrapment cases, an objective one and a subjective one. The subjective standard is used in federal prosecutions. In a federal prosecution a defendant who is proven predisposed to commit the crime charged cannot successfully rely on the defense of entrapment. The focus in a federal prosecution (when entrapment is at issue) is on the predisposition of the defendant and not on the conduct of the government. If the conduct of the government is egregious the defendant could perhaps seek dismissal based on a violation of due process of law but not entrapment. In state prosecutions the focus is on the government conduct instead of the defendant and an objective standard is applied. If it is proven that the government's conduct would have caused an otherwise law-abiding person to commit the crime then entrapment would be a valid defense (even if the defendant was predisposed to commit the crime). Entrapment if proven is an affirmative defense and it excuses the defendant from criminal wrongdoing.

Cultural Norms Defenses

The cultural defense (1) has, at times, proven highly effective, and may become more common in years to come. It allows the jury or judge (in a court trial) to see what was going on in the defendant's head when the crime occurred. Those who support this defense take the position that it is going to become increasingly more important to understand each other's way of life as we become more diverse. Since the United States has ratified the International Covenant of Civil and Political Rights, it is obligated to recognize a person's right to culture as a basic human right. According to the proponents of this defense, it gives those charged with crimes in America the opportunity to tell what it was that motivated their behavior. I have set forth, below, some recent criminal cases wherein the cultural norms defense was asserted.

In People vs. Kimura, the court permitted the cultural defense of oyaku shinju to mitigate murder charges against a Japanese woman who attempted to kill herself and her children but succeeded in only killing the children. Her husband had been unfaithful, and according to the custom, she could escape shame by killing herself and her children so as not to leave them motherless. She pleaded guilty to voluntary manslaughter and was placed on probation for a period of 5 years. In another case, a Chinese immigrant bludgeoned his wife to death with a claw hammer two weeks after she admitted to having an affair. He was found guilty of voluntary manslaughter and sentenced to 5 years probation. In this New York case, the court allowed a defense expert to testify that the defendant's actions were considered appropriate in his community of origin. And lastly, in a criminal trial that occurred in San Francisco, a Native American Indian charged with murdering a police officer was acquitted of all charges by a jury that believed that the defendant acted reasonably in light of his experience as a Native American that he would be killed if caught.

Excerpted from Criminal Law Outline

ENTRAPMENT IS the act of police in inducing a person to commit a crime that is not contemplated by said person, for the purpose of prosecuting him. The use of deception (informants) to gather evidence against suspects in victimless crimes is considered essential. These crimes are called 'victimless crimes ( prostitution, narcotics, gambling, illegal legal, etc.). In theses situations the police must resort to deceptive practices such as informants, false friendship, under cover agents, etc. The law does not tolerate police generating in the mind of an innocent person the original intent to commit a crime which said person would not have committed or even contemplated but for such inducement. The main purpose of the law is to prevent crime - not encourage it. There is a balancing of interests required in these cases where the issue of entrapment presents. In some situations, society is not well served by the police waiting for the crime to occur and hoping to catch the criminal by a stakeout. In the instances where society is better served if the police intervene and trap ongoing activity, the defense of entrapment will not be available. Means used to ensnare the criminal : a. Use of decoy b. Use of deception c. Use of informant (some may be wired for sound) Entrapment in California

In 1979, the law in California experienced a major change regarding the defense of entrapment (People v. Barragas, 23 C 3d 673). California rejected the traditional rule regarding entrapment and decided that the focus should from now on be on the police conduct, and not the defendant and his particular propensities. Calif. decided to ignore the past record of the particular defendant, including present propensities. It was based on the assumption that the average and normal law-abiding person would normally resist the temptation to commit a crime presented the simple opportunity to act unlawfully.

The test for entrapment in the state of Alaska is "whether the police conduct falls below an acceptable standard for the fair and honorable administration of justice. 1. Thus, merely providing a simple opportunity to the suspect is permissible. What is impermissible, however, is: - Deception a) i.e., police loaning truck to appellant knowing it was to be used for burglary. b) i.e., using a police informant in a drug deal and wiring the informant - Badgering - Cajoling ( To persuade or try to persuade by gentle, persistent urging or flattery. coaxing, wheedling, blandishing ). - Offering of excessive consideration - Undue appeals to friendship or sympathy - Guarantees that act would go undetected, wasn't criminal etc. I.E., In one case, where there was ongoing activity of rolling drunks the police were permitted to target the activity and set traps - by laying down in the alley and feigning drunkenness to apprehend the criminals. People v. Hanselman, 76 Cal. 460. Historically and traditionally, entrapment was available as a defense (excuse) to those individuals who were not predisposed to commit the crime that was induced. Predisposed has been defined as inclined, swayed, biased or inclined (to commit this type of offense). Modernly, however, the predisposition of the defendant is not controlling. Rather, it is the conduct of law enforcement in inducing the criminal conduct that is tested in determining whether there has or has not been entrapment.

According to the a modernly applied test, entrapment has NOT occurred as a matter of law where police activity targets ongoing and specific criminal activity & the means utilized are appropriate (reasonable tailored) to apprehend those involved. In Natl. Law Journal an article from New Jersey appeared on 8/5/92, wherein the N.J. Supreme Court (High Court) held that entrapment defense did not apply to DWI cases. In this particular case, defendant was ordered by police to leave premises. Police were not aware that Def. was intoxicated. He backed his car into police car and was arrested, prosecuted and convicted. Def. argued that he would not have driven had the police not ordered him to do so. He contended that he was entrapped. Court ruled that deft. was not entrapped.

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Chapter 9 Crimes Against Person: Homicide, pg. 323

A homicide occurs if a person dies at the hands of another. Suicide occurs if a person takes his own life. Death can also occur by other or natural causes. Not every homicide is a crime. It is our objective in studying this chapter to discern between the different legal theories in regard to a homicide so that we can correctly conclude if the death was murder (and if so, murder one or two), voluntary manslaughter or involuntary manslaughter.

A review of the material covering mens rea in chapter three will assist you greatly in studying the material in this chapter. A mastery of the material on purposeful, knowing, reckless and negligent categories of mens rea is indispensable.

Murder is the unlawful killing of a human being with malice aforethought. At common law a human being (in the context of this definition) was a living person. A fetus did not quality. An embryo certainly did not qualify. Modernly however, the crime of feticide does exist and according to these states it is murder to kill a viable fetus. Some states make the killing of an embryo murder. Other common law rules regarding murder have also been changed over time. At common law the death had to occur within one year and one day from the actus reus. Modernly the time period is three years in most states. In addition, the definition of death has also changed to include what is modernly known as brain dead wherein the victim is in a 'persistent vegetative state." There is no statute of limitations for the crime of murder. From time to time we read about prosecutions for alleged murders that occurred as many as twenty five (25) years ago.

Murder (in practically all states either occurs in the first or second degree). To prove a person guilty of murder the prosecution must prove beyond a reasonable doubt that:

• The defendant acted purposefully (with the specific intent to kill). A purposeful killing established express malice
• The defendant premeditated the act
• The defendant acted formed the intent to kill as the result of deliberation
• Murders that are premeditated and done with express malice are also in the first degree if accomplished via; poison; torture; lying in wait; explosives, etc.

All murders that are not in the first degree are murder in the second degree! Premeditation and deliberation are the area on which you should focus. Learn a workable definition of each of these terms (there are many such definitions) and you will have a relatively easy go with any fact situation. Of the two, deliberation is often the more difficult to prove. A Deliberate act is arrived at or formed as a result of careful thought and weighing of considerations for and against the proposed course of action. An act that is premeditated is one that was considered beforehand and the units of time are irrelevant. In other words premeditation would exist in a situation where defendant for a matter of seconds or minutes thought about killing before completing the act. Deliberation, on the other hand, requires a certain type of detached reflection and consideration.

A killing that occurs as the result of express malice and premeditation but without deliberation is murder in the second degree. A killing that is neither premeditated nor deliberated can result in a verdict of second degree murder if the prosecution can prove that the defendant acted with implied malice. Implied malice is the result of a killing resulting from an intentional act which was willfully performed with knowledge of the danger to and with a conscious disregard for human life. (Also known as knowing). Thus when the defendant does an act which a reasonable person would realize presents the high degree of producing death or serious injury and death does occur, the act is considered knowing and malice is implied. A defendant who drives a car and kills another while intoxicated and who has before been convicted of driving under the influence (therefore being imbued with the knowledge of the dangers of driving drunk) will be criminally liable for murder in the second degree based on the doctrine of implied malice.

Felony-Murder Doctrine

According to this doctrine, certain serious felonies carry with them the probability that serious injury or death will occur immediately before, during, or immediately after the felony is committed. The message that this doctrine carries with it is that a person will be criminally liable for murder if a person dies in the course and scope of one of these violent or prescribed crimes. The intent to commit the underlying felony substitutes for the intent to kill. Remember, the death need not be intentionally caused. The death can be accidental or unintended! Envision a bank robbery wherein the getaway car strikes and kills a pedestrian. Result? Felony murder! A home burglary during which homeowner shoot and kills coconspirator Result? The unhurt co-defendant is guilty of murder. A bank robbery in which the security guard fires shot at robber but misses and kills an innocent bank customer. Result? Murder. These are all examples of the application of the felony-murder doctrine.

The felony-murder doctrine offers another avenue to proving the crime of murder. According to this doctrine, any killing, accidental or otherwise, that occurs in the course and scope of a violent or prescribed felony is murder. What is considered to be in the course and scope of a felony? A killing that occurs during the attempted commission of a felony, actual commission of a felony, or fresh flight from a felony would be considered to be in the course and scope of the particular felony. At common law the predicate (underlying) felony was required to be one of the enumerated violent felonies. Arson, kidnapping, rape, robbery, burglary and mayhem were the violent common law felonies. Modernly however, the list of predicate felonies may be expanded by the legislature of the particular state. A death that occurs as the result of a cocaine or heroin sale that produces an overdose death would qualify as felony-murder in some states.

When is it murder and when is it voluntary or involuntary manslaughter?

Voluntary manslaughter results if the killing occurred during the heat of passion and if the provocation by the victim would have aroused a killing passion in an ordinary and reasonable person under the same or similar circumstances. The crime of voluntary manslaughter is punished less severely than is the crime of murder because it takes into account the frailties of human behavior. We recognize the fact that even a reasonable and law abiding citizen can be provoked to kill. When this occurs the crime is not murder, it is voluntary manslaughter. You must learn the elements of voluntary manslaughter.

• Did the victim provoke the defendant?
• Was the provocation legally adequate provocation?
• Did the killing occur during the heat of passion? Would the passions of a reasonable person have cooled by this time?

Imperfect Self Defense is another avenue to voluntary manslaughter. Imperfect self defense is the result of an honest yet unreasonable perception of imminent danger or death. In other words, the crime is voluntary manslaughter and not murder if the facts proven establish that the defendant honestly believed that deadly force was necessary (and he kills the victim) but the trier of fact concludes that a reasonable person would not have pereceived the danger as imminent or deadly force as necessary.

Involuntary manslaughter is the crime if the killing occurs as the result of the defendant acting and not knowing of the risk of death but the circumstances prove that a reasonable man under the same or similar circumstances would have known this risk. The test applied is an objective one - what would a reasonable person have thought under these circumstances - and not what the defendant subjectively (actually) believed. It is the failure to appreciate a particular risk, but the risk is not so likely to produce death or serious injury that the defendant acted knowingly.

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Chapter 10 Crimes Against Persons II: Criminal Sexual Conduct and Others, pg. 383

The LAW OF RAPE has gone through a process of great reform from common to modern law. The courts had great doubts about complaints by rape victims because of the suspicion that these charges could be so easily fabricated and yet so difficult to defend against.

At common law the only crimes of sexual conduct were rape and sodomy. I have listed - below - some of the common law requirements when prosecuting a rape case. The reason for these stringent requirements was because their existed a view that an alleged rape victim can easily lie about the alleged crime and influence the jurors to believe the lie and that these type of charges were exceedingly difficult to refute.

1. Only men could be rapists, not children or women
2. The actus reus required proof of vaginal intercourse
3. Only unmarried women (wives could not be raped) could be rape victims, not children or other men
4. Actual force was a required element of the crime
5. The actus reus was required to occur against the woman's will or without her consent. The Utmost Resistance Standard was the applicable law and it required proof that the alleged victim acted to her fullest capacity to resist the rapist's advances, i.e., she used all the strength she had available to do so. * It is hard to believe that this required lasted until approximately 1950! Modernly, of course, there is no longer the requirement that the prosecution prove resistance under circumstances where it would be futile and would endanger the life of the victim as where the rapist was is armed with a deadly weapon. Moreover, there is no longer to prove resistance in cases where the facts prove that the victim was paralyzed by fear or overcome by the superior strength of the rapist. The Reasonable Resistance Standard is now applicable.
6. The victim's character and sexual past could be questioned in court to prove her promiscuity as an inference that she consented. The Rape Shield Law now prohibits this line of questioning. However, the sexual history between the alleged victim and Defendant can be brought out in court
7.  Corroboration is no longer required
8.  Lack of prompt reporting is no longer a bar to prosecution
9.  The marital exception has been abolished in all states. The rape laws are now gender neutral. Rape statutes have been modified and broadened to include all types of penetration (vaginal, anal, oral and with objects)

Note: At common law numbers 6, 7, & 8 had to be proven to establish the credibility of the rape victim.

Note: Pre-reform rape law emphasized the resistance (or lack thereof) by the victim and paid less attention to the forcible and assaultive conduct of the perpetrator. In other words, if the evidence showed that the alleged victim was both physically and mentally capable of resisting the assault, was not frightened by the threats and the location where the act occurred was such that resistance could have helped her avoid the assault, then it must be proven that she did in fact resist the assault. Failure to prove this was tantamount to her " consenting" to the act. There had to be proof that the resistance was a legitimate attempt to thwart the attack. The pre-reform law put the rape victim on trial!

The above changes in the prosecution of rape charges has generated good and some bad results. The good that has come from the rape law reforms has made it less of an obstacle to get women to come forward, report and prosecute the alleged rapist. The downside involves the many wrongful rape convictions that have resulted due to these reforms (which have made it easier to prosecute and convict alleged rapists). (1) (2) (3) (4)    

A brief review of the facts, holdings and reasoning applied by the various courts should assist you in understanding how the different states approach rape prosecutions. In a few states a forcible rape may be proven on the basis of lack of consent in addition to nothing more than the rapist using the amount of physical force needed to accomplish the penetration. See below:

State in the interest of M.T.S., Applied the Intrinsic Force Standard which required evidence of force no greater than that required to accomplish penetration. The trial court in this case correctly instructed the jury that "physical force" had been used by the sexual penetration of the victim without her consent. In analyzing this case and the application of the law in this state we should come to realize the following points: (1) The trier of fact was required to focus primarily on the assaultive nature of the defendant's conduct (2) The alleged rape victim was not required to say "no" ( in other words the defendant cannot avoid a rape conviction as a matter of law by simply contending that the female wanted to have intercourse) (3) The crime of forcible rape occurs if a man has intercourse without first securing permission - a "yes" in words or conduct!

 See Commonwealth vs. Berkowitz (note case # 1, pg. 415) in which the Extrinsic Force Standard (force in addition to that needed to accomplish penetration) was applied and the rape conviction was overturned by the appellate court. In this Pennsylvania case the law required proof of forcible compulsion and lack of real consent. The appellate reasoned that the defendant did not use a sufficient degree of force to prevent resistance by a person of reasonable determination. In other words, since the defendant did not threaten the victim, the matter turned on whether sufficient force had been used. Contrast these facts with those in M.T.S. (above) to get a clearer understanding of the difference between the two standards.

The case of State ex rel. J.F.S. @ Pg. 418 is an excellent example of the fact that rape cases often turn on who the jury or judge (in a Court trial which this was because the defendant was a juvenile) believe. These cases are often nothing more than the word of the prosecutrix against the word of the accused (assuming the accused testifies). In this case the petition was sustained despite the fact that there was no corroboration and the victim did not immediately report the rape. The law of the state in which this prosecution occurred required that the prosecution prove 'lack of consent.' Do you believe that this victim consented or not?

Rape by a stranger vs. rape by an acquaintance, date or spouse

Rape is stereotypically viewed as a violent attack by a sexual predator that is aimed at a complete stranger. However, the vast majority of sexual attacks and assaults are committed by a person who is known to the victim. Recent studies suggest that over 50% of these attacks are perpetrated by current or former husbands, boyfriends, male lovers or relatives. It should also be noted that the perpetrators - as a general rule - do not use guns or knives and victims are generally not cut or bruised externally. In other words, modernly forced sexual intercourse often occurs between persons who know each other and often involve no violence! You should be able to distinguish between an aggravated rape (committed by a stranger or by a man armed or by a man who physically injures his victim) and unarmed acquaintance rape. Modernly, a woman's right to end sexual intimacy without penetration is a protectable right and a violation of this right is a crime! In is of interest to note that in acquaintance rape cases generally speaking, nonconsensual sex is not rape without proof that the man used force or threatened to use force or that the victim was unconscious, highly intoxicated, or underage.

 - Other fact situations and their analysis -

Victim was sleeping in her hospital bed. Def. entered her room, pulled back the covers, pulled up her hospital gown, and inserted his finger into her vagina. She awoke and realized that Defendant was not dressed as a nurse. Defendant abruptly left the room. He was convicted of forcible rape! Force and lack of consent are implied when the attack is carried out by surprise. This is an application of was is known as statutory force. Statutory force exists when the element of surprise substitutes for the element of force.

Victim had intercourse with Defendant "because he threatened to fire me from my job if I didn't." No forcible rape according to the facts because the threats of injury are required!

Defendant lied to victim by telling her that he was a famous actor (whom he strongly resembled). Intercourse occurred. No rape!

Defendant, a doctor, lied to victim by telling her that "intercourse will help cure your medical condition." No rape!

Man had intercourse with a prostitute and gave her bogus money. No rape!

In the above examples, the fraud (lies) was in the inducement. In each and every instance the alleged victim knew that she was agreeing to having intercourse! Remember, the prevailing view in this country is that there can be no rape if the intercourse is achieved by fraud or trick or stratagem. "Bachelors, and other men on the make, fear not. It is still not illegal to feed a girl a new line, to continue the attempt, not to take not to take no for a final answer." . . . But there comes a point at which one must desist. This is the precise language used by an appellate court in overturning a rape conviction wherein the defendant lied to the victim to get her to feel sorry for him. - - -

Physician gained permission to insert an instrument into patient's female organ, and instead inserted his male organ. He was found guilty of rape.

The difference between this example and the ones immediately above it is that this fraud (lie) is fraud in the factum which means that the victim did not believe that she was consenting to intercourse. - - -

Some final thoughts:

The Model Penal Code focuses on whether the facts demonstrate an outward and objective manifestation of aggression, i.e., force that objectively forces the victim to comply.

Do you know why rape is viewed as a more serious crime than other crimes against the person?

The definition of constructive force is when threats are made and the victim complies but no force is actually ever used.

LAW OF ASSAULT & BATTERY

The crime of battery requires proof of an unlawful touching and the crime of assault does not require proof of a touching. The mens rea for battery is general intent. In some cases courts have found that reckless and negligent contacts can constitute battery. The touching generally is aggressive and violent (striking, kicking, hitting, using a weapon). In one case spitting constituted a touching. The law requires the infliction of either pain or injury! The amount of harm/injury caused determines whether the crime of battery is a felony or misdemeanor. Per the MPC, the battery is a felony if caused either intentionally or knowingly with a deadly weapon or serious injury (without a deadly weapon) caused purposefully, knowingly or even recklessly.

The crime of assault requires proof that the defendant intended to place the victim in apprehension of an immediate battery (scare the victim) or that the defendant attempted to commit a battery but did not succeed. It is unimportant whether the defendant really never intended to carry out the threat. The substance of the threatened battery-assault is the intent to frighten the victim into believing an immediate battery is going to follow. Remember, the prosecution must prove that the victim both honestly and reasonably was afraid of an immediate battery.

KIDNAPPING AND FALSE IMPRISONMENT

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Chapter 11 Crimes Against Habitation: Burglary and Arson, pg. 427

Burglary and arson laws protect person, security and property. The harm caused by burglary stems from intrusions into homes and other structures. The harm caused by arson is the damage and destruction to homes and other type of property (unimproved real property is the proper subject for an arson).

The definition of both burglary and arson have been expanded since the 16th century.

Burglary

The mens rea for burglary is the specific intent to intrude in order to commit any felony or to steal anything of any amount. There must be a concurrence of act and intent to commit the additional offense. An unprivileged entry into a structure without the intent to steal or commit a felony is not a burglary. The crime of burglary is complete the moment the defendant commits the actus reus of entering the location (assuming of course, the mens rea also exists). Remember, the crime of burglary is a crime against possession not ownership. Moreover, the structure that is entered must be in the possession of another! If the perpetrator has the right to possession of the structure (a tenant, co-owner, etc.) then there cannot be a burglary because the entry is not trespassory.

Special points to focus on:

Know the difference between an actual and constructive entry. Pushing open an door, picking a lock and opening the door or breaking a window are all actual entries. Convincing a person inside the structure to open the door based on a threat, having a conspirator who is already inside the location open the door, entry via fraud (pretending to be from the gas company, etc.) are all constructive entries. You should also be mindful of the fact that modernly, the element of breaking has been replaced by the element of an unprivileged entry. Review the primary and note cases to see if any involve an unprivileged entry? Surreptitious remaining in a structure (department store) after closing hours with the intent to commit a felony or steal - according to some state statutes - satisfies the element of entry.

Element of nighttime entry

At common law the prosecution had to prove that the entry occurred at nighttime (between dusk and dawn) because there were fewer policmen available at night and it was harder to identify the suspect.

The issue of the dwelling

At common law, dwellings included outbuildings in the courtyards of homes (places where property could be stored or people could reside). However, dwellings did not include a house whose construction was almost complete and that awaited habitation. Contrast this with the holding in the case of State vs. Burns @ page 457 wherein the trial court and appellate courts ruled that an apartment within a larger apartment complex that had been vacant for one month was an occupied structure! Do you agree with the reasoning of the courts on this issue? The MPC limits the crime of burglary to occupied structures because these present the most dangerous and confrontational situations. Do you know the definition of occupied?

Aggravating factors include:

Burglaries committed at night

Burglaries of occupied structures

Burglaries that involve harm or violence

Arson (1)

The MPC defines first degree arson as the intent to destroy buildings by fire. The property involved would include one's own property. common law, the burning of one's own property was not arson. The burning of personal property is arson in the third degree.
The crime of arson is a general intent crime! The actus reus is to set fire to a struture or land or to cause a burning of the same. A burning occurs when the composition of the structure changes (blisters, chars, etc.)

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Chapter 12 Crimes Against Property, pg. 444

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Chapter 13 Crimes Against Public Order and Morals , pg. 481