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Thursday, April 25, 2002

 

 

No class next Tuesday, April 30^th. We will resume with chapter 7 next Thursday, and have our quiz at the end of the lecture. We discussed concept of self defense and the elements that one must prove when alleging self defense as an affirmative defense.

 

1.           Honest belief in the existence of immediate danger of serious injury or death

2.           Proving that the belief must be reasonable under the circumstances. In other words, an objective standard is applied to this theory. It must be proven –by the defendant – that a reasonable person under the same or similar circumstances would also have believed he/she was in immediate danger.

3.           Proof that the force used was reasonable under the circumstances.

a.  In the Goetz case, the grand jury indictment was thrown out by the trial judge who ruled that the standard was a subjective one and not an objective one as applied by the grand jury.

b.  The prosecution appealed the dismissal and the appellate court reinstated the indictment holding the standard to be applied should be an objective one (in other words, the grand jury was right in its perception of self defense).

4.           The case went to trial and the jury (which included African Americans) acquitted Goetz of the more serious charges of attempted murder and convicted him of possessing an unregistered firearm.

5.            

 

 

 

We looked at the video involving the shooting and killing of an armed man by two police officers. We analyzed the situation and whether the officers, under the circumstances presented, were justified in using deadly force against the victim.

 

Analysis:

 

1.           Did officers believe that they were faced with imminent danger?

2.           Did the danger appear to involve serious injury to the officers or death?

3.           Were the officers reasonable under the circumstances?

a.  Would a reasonable person in their position perceive imminent danger of death or serious injury?

b.  Remember, this is an objective standard!!!

 

 

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Thursday, May 02, 2002

 

 

The first 30 minutes of the lecture were devoted to the class, collectively, completing the quiz on chapter 7.

 

When then resumed watching the video.

 

We learned that the cases involved the following:

 

1.           Retreat doctrine

2.           The aggressor cannot prove perfect self defense

3.           The BWS (battered wife syndrome) broadens a victim’s self defense argument because what may seem imminent to a battered spouse may not seem imminent to one who has not been battered

4.           May citizens ever use reasonable force against police officers?

5.           Is consent to criminal acts a defense in situations where the consented to behavior does not permit these acts (basketball game wherein players agree that it is o.k. to slug one another with clenched fists)

6.           What is the duty to retreat and how does it differ in application to a situation wherein an attack is occurring in one’s home?

7.           What standard applies (objective or subjective) to the perception that there exists imminent danger of immediate harm?

8.           BWS should be allowed if evidence proves that the person who used force had been a battered spouse

9.           Choice of evils defense (necessity): when a crime is committed in order to avoid a greater evil.

a.  Defendant drives drunk in attempting to get away from a serial killer who is after

 

 

Chapter 8 (Excuses for criminal wrongdoing)

 

Legal vs. medical insanity:

 

       Medical insanity is not a legal excuse for the commission of a crime but legal insanity is. It is important that you understand the distinction between medical and legal insanity and what one – who is alleging legal insanity – must prove. In addition to a mental defect/disease, the person must prove (by a preponderance of the evidence) that either he/she was unable to understand nature and consequences of his/her behavior OR that he/she did not know that it was wrong (according to the law ) to do such thing OR that he/she could not conform his/her behavior to what the law required.

 

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Tuesday, May 07, 2002

 

Is there a difference between raising and proving an affirmative defense and arguing that the prosecution failed to prove the mens rea of specific intent beyond a reasonable doubt due to the fact that the defendant was highly intoxicated when he committed the robbery?

 

       Under these circumstances, the defendant (who committed the robbery) would not be entitled to any of the affirmative defenses (see chapters 7 and 8). However, if the defense could convince the jury that the prosecution failed to prove beyond a reas. doubt that Defendant acted with specific intent then Defendant would be entitled to an acquittal.

 

       *** There is no defense of voluntary intoxication***

 

       Diminished Capacity is not longer an affirmative defense in California and in many other states as well. It is relevant during the sentencing phase. The judge would tend to be more lenient during the sentencing of this person. Look at the text for the case and its facts that caused California voters to vote for the abolition of the Diminished Capacity defense.

 

       Age as an affirmative defense

 

       Cultural defenses???

 

       Entrapment

 

       Know the difference between this defense in a federal case versus a state case. In federal prosecutions, the defense of entrapment will not work if the prosecution can prove that the defendant had a predisposition to commit the particular crime (regardless of the tenacity and overreaching by the police). However, if the defendant can prove that the police conduct was so egregious so as to violate his/her rights to due process of law this could lead to a dismissal of the charges.

 

       If the prosecution is in state court, entrapment will work provided the defense can prove – by a preponderance of the evidence – that a normal law abiding citizen would have been influenced to commit the particular crime based on the conduct of the police.

 

       When reading and briefing the cases for Thursday:

 

1.           Identify the affirmative defense that is being asserted

2.           Determine if court allows this. If the court refuses to allow the particular defense, determine why it did so?

3.           If the court allows the defense and the defendant is still convicted, why did this happen?

4.           Go through the same approach with the note cases.

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Thursday, May 09, 2002

 

Video on Insanity

 

We watched the video on Insanity. The Hinckley case was addressed. At the time of his trial, it was the burden of the prosecution to prove that the Defendant was sane – at the time of the crime – beyond a reasonable doubt.

 

Presently a defendant is presumed to have been sane at the time of the crime. The affirmative defense of insanity must be proven by the defendant and by a preponderance of the evidence.

 

Jury found Hinckley to be not guilty by reason of insanity

 

Once the case gets to the jury, history shows it does not really make a difference what test used but will consider is defendant so crazy and is his crime such that we want to relieve him of criminal responsibility.

 

Hillside Strangler cases

 

10 women were killed in L.A. Bono and Bianci – two cousins – were charged with the murders. Bianci agreed to undergo hypnosis. He alleged multiple personality disorder which would translate to insanity. He was faking it. This was revealed when he while under hypnosis went to touch a lawyer he thought was in the room. Subjects placed under hypnosis never attempt to touch their hallucinations.

 

Peo. vs. Kimberly Martin (Iowa)

 

Even prosecutors believed that Martin was insane. She was found N/G by reason of insanity and sent to a state hospital. She was sent to a state hospital from which she was released two weeks later.

 

She was suffering from mental disease (psychosis)

 

State vs. Johnson

 

Entrapment involves the defendant proving – by a preponderance - of the evidence that the government induced the crime (caused it to happen/ more than solicitation, i.e., encouraged, pressured, badgering, etc.). Once this is established, the prosecution must prove beyond a reasonable doubt that the particular defendant was predisposed to commit the crime.

 

On appeal, the appellate court ruled that predisposition had not been proven and it reversed the conviction.

 

Oliver vs. State

Why was Oliver’s theft conviction reversed on appeal?

 

Per prosecutor in this case, “Anytime the insanity defense is used the act is going to be reprehensible, a morally wicked act.”

 

Peo. vs. Jeffrey Dahmer

 

Arrested and confessed to killing 17 victims whose body parts he ate, even painted their skulls. Defense attorney argued that he knew what he was doing and even knew that it was wrong. However, his medical disease was such that he could not conform his conduct to that required by the law – he could not control himself.

 

Mind of the criminal that is the issue and not so much in what he does.

 

When people are acquitted by reason of insanity, many of them are held much longer in mental institutions than they would have been sentenced to prison if convicted.

 

Abolition of insanity defense.

 

Montana, Idaho and Utah have abolished the insanity defense because it undermines American Justice. Other states that allow it admit that it can undermine our justice system.

 

 

Chapter 9

 

Examines the causes and criminal responsibility if any of death. Death can occur:

 

1.           Via natural causes

2.           Via suicide

3.           Via the hands of another = homicide which does not mean that it is automatically illegal

a.  Next, look at what the mens rea of the particular defendant was at the time of the act

                                                                i.     Purposeful

                                                                  ii.     Knowing

                                                                     iii.     Reckless

                                                                    iv.     Negligent

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Tuesday, May 14, 2002

 

 

 

In both Sharieff and Quinet both defendants alleged and quite possibly proved that they suffered from a mental disease/defect at the time of their otherwise criminal acts, but neither proved the defense of legal insanity. In Sharieff he knew it was wrong and in Quinet he could conform his behavior to what the law required.

 

 

In Egelhoff we learn that a state may preclude any evidence of intoxication when the crime at issue requires proof of specific intent.

 

In K.R.L.

 

Age of minor was 8 yrs. 2 months. In Washington, persons under 7 were incapable of committing a crime, and those between 7 -14 presumed incapable of entertaining mens rea. Minor went into a woman’s home and stole her property.

 

In juvenile court he was convicted. It was reversed because the evidence in the record was insufficient.

 

State vs. Irons

 

His defense of duress required that he proved that he honestly believed that imminent danger of death or serious bodily injury existed.

 

In both entrapment cases, which were at the state level, the defense should have been available to the defendant. This is because it is the conduct of the law enforcement officer(s) that ultimately dictates whether entrapment occurred regardless of the defendant’s predisposition.

 

Chapter 9 – Homicide

 

Distinguish between the various ways that death can occur.

 

Homicides can occur:

 

Purposefully

Knowingly

Recklessly

Negligently

or

Accidentally

 

When does life begin?

 

At what stage of human development must a victim be in order for the crime of murder to occur?

 

The crime of feticide (the killing of a fetus) did not exist at common law.

 

When does life begin?

 

Modernly, the killing of a viable fetus constitutes a crime. Viable means that the fetus is capable of living outside of the womb of the mother. This will be a question of fact and the prosecution must prove it beyond a reasonable doubt.

 

In some states there need not be proof of viability. In other words, a defendant can be convicted of a homicide for taking human life at its earliest stages even though he/she did not realize that his intended victim was pregnant.

 

When does life end?

 

According to the majority of states and modern view, death occurs when there is a cessation of the respiratory functions and when the victim is being kept alive by artificial means (ventilator or respirator)

 

There is no statute of limitations for the crime of murder.

 

At common law no prosecution for homicide could go forward unless the victim died within one year and day from the defendant’s act.

 

For this exam it is essential that you are able to distinguish between the following:

 

Murder 1 (death, life without parole, or 25 to life)

Murder 2 (15 to life)

Voluntary manslaughter Max. of 15

Involuntary manslaughter 2-3-4-

 

 

To prove murder one:

 

Must prove

 

1.           Mens rea was purposeful (specific intent)

2.           The intent was formed as the result of deliberation (careful weighing of pros and cons and in a manner that involved cold blood)

3.           Proof of premediation (defendant planned to kill in advance)

 

 

 

Tuesday, May 28, 2002

 

Please try accessing the below website for the balance of this semester

 

stevensindell.com

 

Last class mtg. Is Thursday, June 6^th! Your next meeting is Tuesday, June 11^th at which time you will be given your final exam. The final will begin at 8:00 and you will have until 9:30 a.m.

 

Your remaining extra credit assignments will be posted on Thursday of this week and due by the following Thursday, June 6^th.

 

32,700 people will be raped this month

9% will be men

In the U.S. one woman is raped every 48 seconds. That’s 37 people in half an hour!!!

 

What are the defenses and or issues that a rape defendant can be expected to raise at trial or before?

 

1.           Misidentification (you have wrong person)

2.           The victim consented

a.  Expressly

3.           What about lying to victim which causes victim to agree to sexual intercourse?

4.           What about drugging the victim?

a.  Impliedly

b.  Circumstantial evidence will be offered:

                                                                i.     The victim never screamed

                                                                  ii.     The victim was not harmed, bruised, etc. Clothes were not torn

                                                                     iii.     No traces of semen

5.           No force was used

6.           No penetration occurred (actus reus for the crime of rape)

 

Statutory Rape

 

1.           Good faith mistake allowed

2.           Strict liability jurisdictions

Study the actus reus and mens rea for the crimes set forth below:

 

Rape (according to most states is a general intent crime) If the defendant contends that he believed that the victim consented but according to the facts a reasonable person would have believed otherwise

 

In a general intent jurisdiction the prosecution must prove that a reasonable person would have known that Victim did not agree to intercourse

 

In a specific intent jurisdiction the prosecution must prove that the defendant had the purpose of raping the victim (having intercourse against the will of Victim and by use of force or threatened force).

 

In Berkowitz the only evidence of force was that of intrinsic force. When the only evidence of force is that of intrinsic, then the argument is much stronger that the victim consented.

 

In MTS prosecution alleged sexual assault and was required to prove force of either an intrinsic or extrinsic nature.

 

State vs. Bonds, defendant pinched nipple of victim because he was wanted to hurt her.

 

Garnett case had intercourse with a 13 whom he believed to be 16 at the time. She became pregnant. He was charged with stat. rape. Prosecution had to prove that Vctim was less than 13 and that Defendant was 4 or more years older than victim at time.

 

Nothing that Garnett perceived or believed mattered. The only relevant evidence was the act, her age and his. It was a strict liability jurisdiction.

 

 

Sodomy

Oral copulation

Sexual battery

Assault and battery

 

You should review the common law regarding rape and know how it differs from modern legislation.

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Thursday, May 30, 2002

 

Deadly weapon

 

If object or item is being used to inflict serious bodily injury or to cause death

 

False imprisonment vs. kidnapping

 

Asportation is an element of kidnapping which is the moving of a person from one point or location to another and by using or threatening to use force to achieve this end.

 

False imprisonment addresses the confinement or restriction of movement and is achieved by use or threat of force

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Chapter 11

 

Burglary / specific intent crime which requires proof that defendant entered a location without permission and with the concurrent intent to commit any felony or steal anything of any amount.

 

       Breaking and entering into an occupied dwelling

 

              Occupied vs. vacant

Occupied does not require that the occupant be home/present at time of defendant’s entry

 

Vacant means that nobody is occupying the location

 

Know the common definition of burglary and know how it differs from statutory burglary

 

If a persons enters a location without the permission of the owner and without the intent to steal or commit a felony but later (once inside) decides to commit either IT IS NOT A BURGLARY!!

 

Burglary is often proven by circumstantial evidence, not direct. Fingerprints, possession of property that was taken, etc.

 

       Crime against possession not ownership

 

It cannot be a burglary if defendant had a legal right to be in the location

 

       One who

 

Arson / general intent crime

 

Tuesday, June 04, 2002

 

Arson:

Mens rea: general intent crime (knowing)

Actus reus: setting fire to or causing a burning of (change in the composition of the structure)

 

An burning that is other than accidental is by definition arson in the fire is of an incendiary nature. Investigator will look for a point of origin.

 

Arsons that produce death will create criminal liability for murder based on the felony-murder rule.

 

For burglary there is a difference between vacancy and occupancy wherein the occupants are temporarily absent

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Chapter 12 (Theft)

 

Focus on how the taking is achieved

 

Was item given to person who ultimately took it

Was item stolen by person by stealth and surprise

Was item stolen by person who used deceit

Was item taken from victim by threat or use of force

 

Cashier collects money during day and takes it instead of putting into safe (cashier, up to a certain point, had the legal right to be in possession of the money ((constructive possession))

 

A borrow B’s car and then decides not to return it

 

Police officer uses patrol car (unmarked) for family vacation over the weekend

 

Customer buys painting and gives a check to merchant on an account that has been closed

 

Buyer purchases car from Seller and gives a bogus check to seller

 

Employee during business hours uses his employer’s computer to work on a private project and prints out the text

 

A points a gun at person and threatens his life unless given the victim’s jewelry and money is turned over

 

Teenager sneaks up behind elderly couple and grabs the woman’s purse causing her to lose her balance and fall to the ground

 

X, seeing a wallet in the campus quad picks it up, looks through it, and decides to keep it. It contained personal identification and credit cards and money

 

X hotwires victim’s car and drives it around for 3 days and then leaves it several miles away.

 

 

Larceny

Larceny by trick

Obtaining property by False Pretenses

Embezzlement

Robbery

Extortion

Forgery

 

Theft involves the taking of personal property (suggest that the property is both tangible and moveable). To prove theft the prosecution must prove a taking and carrying away of the personal property in the (actual or constructive) possession of another.

 

Theft requires proof of an asportation (carrying away of the personal property)

 

Abandoned vs. lost property (lost property is in the constructive possession of its owner and most lost property will carry with it (an indicia of ownership)

 

Theft is a specific intent crime

 

You should focus on how the defendant acquired the property

 

Steal and surprise

Trickery