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Sources of Criminal Law
- CL, MPC, and majority statutes are sources of criminal law for the multistate.
- Va only looks to its statutes and its CL.
territorial, meaning a state can prosecute a crime so long as any part of that crime occurred there
Burden of Proof
The prosecution must prove/disprove beyond a reasonable doubt every element of the crime or defense, except for insanity: D must prove that by a preponderance.
- Crimes punishable by more than 1 year in prison are felonies.
- If a crime’s maximum sentence is 1 yr, it’s a misdemeanor
Essential Elements of a Crime: Generally
Crimes involve an act, a mental state, concurrence of the two, and causation
- An act is any voluntary bodily movement.
- Sleepwalking, reflexive movements, and being moved are involuntary.
- A failure to act is punishable only if there was a duty imposed by statute, contract, status relationship, voluntary assumption of care, or creation of peril; knowledge of the facts giving rise to that duty; and the person is able to help (the person must still do what he can: call the police).
- There are 4 categories of mental states:
- specific intent (to achieve a specific result),
- malice (D acts intentionally or with reckless disregard of a known risk),
- general intent (generally aware of factors constituting the crime), and
- strict liability (no intent).
Specitic Intent Crimes
- first-degree premeditated murder,
- false pretenses,
- All inchoate crimes require specific intent, so voluntary intoxication can be a defense to them
- when a D acts intentionally or w/ reckless disregard of an obvious or known risk
- includes arson and murder
- D need only be generally aware of the factors constituting the crime; he need not intend the specific result
- General intent crimes include battery, false imprisonment, kidnapping, and forcible rape.
- Crime requires simply doing the act; no mental state needed
- Strict liability crimes include statutory rape and low-penalty, public welfare crimes
- Mistake of law is not a defense (unless knowledge is an element of the crime, the statute was not available, one reasonably relied on a law later overruled/found unconstitutional or on an official interpretation/advice from someone who enforces, interprets, administers the law (but not private attorneys).
- Mistake of fact can be a defense.
- A reasonable mistake is a defense to any non-strict liability crime.
- Unreasonable mistakes are only defenses to specific intent crimes
MPC Mental States
- levels of culpability depending on whether D acted
- intentionally/purposefully (meant to do it),
- knowingly (aware of what he was doing),
- recklessly (D consciously disregards a substantial and unjustifiable risk), or
- negligently (D should have known of the substantial and unjustifiable risk)
- Causation requires but-for and proximate cause.
- D’s action is the proximate cause if the harm is the natural and probable consequence of D’s action. Proximate cause considers foreseeability and fairness. Pre-existing weaknesses do not break the causal chain, but unforeseeable intervening causes do.
D must have the mental state at the same time as he engages in act (mostly in larceny and burglary)
- The unlawful application of force to another, resulting in either bodily injury or offensive touching
- It only requires general intent
- Two versions:
- 1. attempted battery
- 2. The intentional creation other than by mere words of a reasonable apprehension in the mind of hte V of imminent bodily harm
- Requires specific intent.
- Multistate: the majority statute rule is that the presence of weapons, vulnerability in the victim (child, handicapped, old), and the intent to commit robbery or rape escalate assault and battery to aggravated assault and battery
- Virginia: assault and battery is usually a misdemeanor, but malicious wounding is a felony (shooting, stabbing, cutting/wounding with attempt to maim).
Death may occur at any time. CL provided that V must die within a year and a day of the act. Va along with the majority of states have abolished this rule
- Murder is causing another’s death with malice aforethought:
- intent to kill (inferred from use of a deadly weapon),
- intent to inflict great bodily injury (shooting in the leg),
- extreme recklessness, or
- felony murder.
- There’s also transferred intent.
- First-degree murder requires premeditation and deliberateness.
- Second degree lacks premeditation but shows obvious disregard for human life.
- Voluntary manslaughter is heat of passion with adequate provocation, not mere words, and no time to cool off (fights, spouse doing someone).
- Involuntary manslaughter requires criminal negligence or death occurring during a misdemeanor.
- Felony murder (often included in first-degree) requires an inherently dangerous felony for which D is guilty and a victim who is not a co-felon. The killing itself must be foreseeable, in furtherance of the felony, and during the felony or flight. The killing cannot be the underlying felony: manslaughter is not felony murder.
- Capital Murder: is willful, deliberate, and premeditated, involving aggravating circumstances - abduction for money; for hire; by an inmate; during rape/(attempted) forcible sodomy; of a law officer, witness, pregnant woman, more than 1 person in the same instance or three-year period, someone under 14 by someone over 21; to further mfr/sale of drugs; by order in a conspiracy; or in an act of terrorism.
- First-degree murder: is willful, deliberate, and premeditated and lacks the aggravating circumstances. It can be by poison, lying in wait, imprisonment, or starvation.
- All murder is presumed second-degree (extreme recklessness, not premeditated). The prosecution has the burden to elevate (capital, first-degree) and on the defense to reduce (manslaughter).
- Voluntary manslaughter: is unlawful killing without malice.
- Involuntary manslaughter: is accidentally killing someone during a misdemeanor or with criminal negligence (DUI, cleaning the gun knowing it’s loaded).
- Felony murder: is any murder, intentional or accidental, committed during BARK—IRS: Burglary, Arson, Robbery, Kidnapping/abduction, sexual penetration with an Inanimate object, Rape, forcible Sodomy. If the felony’s not in that list and the death was an accident, it’s felony homicide, not murder. Felony murder’s treated as first-degree. The death must result from the felon’s action or from actions directly calculated to further the felony. Deaths merely coincidental to the felony do not constitute felony murder.
MS False Imprisonment/Kidnapping
- False imprisonment is the unlawful confinement of another without his consent. It only requires general intent.
- Kidnapping is false imprisonment, but the victim is moved or concealed.
- Aggravated kidnapping exists where there is ransom, V is a child, or the purpose is robbery/rape
- Kidnapping/abduction is the seizure, physical detention, taking, transportation, or concealment of another person by force, intimidation, or deception with intent to deprive him of liberty/hide him from another. It doesn’t matter whether you
- move him.
MS Sex Offenses
- Rape is nonconsensual sex accomplished by (threat of) force or if V is unconscious.
- It only requires general intent.
- Statutory rape is sex with someone under the age of consent. The majority rule is strict liability, but the MPC allows reasonable mistake of age as a defense.
VA Sex Offenses
- Va recognizes spousal rape if the spouses were living separate and apart or Dcaused V serious physical injury by force/violence.
- Statutory rape: If V is < 13, it’s punished as rape, regardless of D’s age.
- If 13 < V < 15, it’s a class 4 felony.
- D is a minor, V consents: 13 < V < 15, age gap > 3 yrs; class 6 felony; 13 < V 15, age gap < 3 yrs; misdemeanor.
MS Theft-Related Offenses
- Larceny: is the trespassory taking and carrying away of another’s personal property with the intent to permanently deprive. Concurrence is presumed under the doctrine of continuing trespass, so if D later intends to permanently deprive D and doesn’t return V’s property, then he is guilty of larceny.
- Embezzlement: is the conversion of another’s personal property with intent to defraud where the converter is in lawful possession. Possession requires more than mere custody: the possessor must have the authority to exercise some discretion over the property. Unlike larceny, D was already in possession.
- False pretenses: is obtaining title to another’s personal property through an intentionally false statement of a past/present event (not a future promise) with intent to defraud. Unlike larceny, D gets title as opposed to just possession. If D only gets possession, it’s larceny by trick
- Robbery: a larceny from another's person or presence by force or threat of immediate injury. Specific intent to steal.
- Threat of future injury is extortion, and embarrassment is blackmail
VA Theft-Related Offenses
- Larceny, embezzlement, and false pretenses may be charged as larceny.
- Grand larceny is taking from another’s person
- any money/property more than > $5.
- Simple larceny is taking goods/property worth $200 or any firearm not from a person.
- Otherwise, it’s petit larceny.
- Unexplained exclusive possession of recently stolen property creates a presumption of guilt.
- Larceny is a lesser-included offense of robbery.
- Extortion is threatening injury to another’s character, person, or property or accusing him of any offense and thereby exacting money, property, or pecuniary benefit, or sending a note/electronic communication threatening to kill or cause great bodily harm to V or her family.
Misc. Theft-Related Offenses
- Forgery is falsifying a writing with intent to defraud.
- Uttering is offering a forged instrument as genuine with intent to defraud.
- Malicious mischief is damaging someone’s property with intent to defraud
Where mere possession is a crime, D must have control long enough to have an opportunity to rid possession. The object need not be in D’s actual possession, just close enough so that D may exercise dominion and control over it. D must have knowledge of the item’s character and that he’s in possession
- Burglary is the breaking and entering of another’s dwelling at night with intent to commit a felony therein.
- It requires specific intent.
- Va and the majority of states, have eliminated the at-night requirement. If it is at night, there’s no breaking requirement.
- Dwelling has expanded to include any building.
- malice crime
- Requires burning of the building: material wasting, not just scorching
- In VA, malicious burning or destruction of any building
MS Accomplice Liability
- An accomplice is one who aids or encourages the principal with the intent that the crime be committed. Mere presence or knowledge is insufficient. The accomplice is guilty of all crimes he aided or encouraged and all other foreseeable crimes committed along with them. If the principal is not guilty (insanity), the accomplice still is.
- Most jurisdictions have abolished the categories; all parties to the crime are guilty.
- At CL, being a principal in the second or an accessory before the fact was not a crime. It was only a crime to be an accessory after the fact (accessory assists a principal who he knows committed a felony with the intent to help him avoid arrest or conviction).
- An accomplice can avoid liability by withdrawal. If he encouraged, he must discourage. If he aided, he must neutralize his assistance or prevent the crime (notify police).
VA Accomplice Liability
- The categories remain. Principals in the second degree (some overt act sharing perpetrator’s criminal intent; ex - lookout) and accessories before the fact (not present at the crime but provide assistance) are treated as principals in the first degree (except in murder cases, where the accomplice
- doesn’t get the death penalty, unless it was for hire or an act of terrorism).
- An accessory can be convicted so long as the prosecution shows the crime was committed; the principal need not be convicted.
- The accomplice can avoid liability by withdrawing all aid, doing everything possible to detach from and prevent the crime.
- Solicitation is just asking someone to commit a crime. The crime need not be committed.
- Specific Intent
- Conspiracy requires an agreement between 2+ people to commit a crime and an overt act in furtherance of it.
- Mere preparation satisfies the overt act.
- The MPC allows for a one-person conspiracy under the unilateral approach.
- CL requires 2 guilty minds.
- Co-conspirators are vicariously liable for any foreseeable crime in furtherance of the conspiracy.
- Virginia rejects the unilateral approach: An accused is not guilty of conspiring with a police officer.
- No overt act is required.
- The agreement is sufficient.
- D may be convicted of conspiracy and the underlying crime in the same trial, but he may not be tried for conspiracy once he’s been convicted or acquitted of the underlying crime.
- Under the MPC/majority statutes, attempt requires a substantial step strongly corroborative of a criminal purpose.
- CL required conduct that was dangerously close to committing the crime.
Attempt is a direct act with intent to commit a crime but falls short of completing it.
Impossibility of Attempt
It is impossible to attempt unintentional crimes. Factual impossibility (pick-pocketing an empty pocket) is not a defense, but legal impossibility (it’s not illegal) is.
- At CL, withdrawal from an inchoate crime was not a defense.
- Under the MPC, withdrawal is a defense if D voluntarily and completely withdraws based on a change of heart, not for fear of failure or being caught.
- Lesser included offenses (necessary conditions: if robbery, then larceny) merge with the greater offense.
- Attempt and solicitation merge with the completed crime, but conspiracy does not. Solicitation merges with conspiracy.
- Insanity requires D to have a mental disease or defect.
- The M’Naughten (D didn’t know his act was wrong or didn’t understand the nature of his act),
- irresistible impulse (D couldn’t control his actions or conform his conduct to the law), and
- MPC (D lacked substantial capacity to appreciate the criminality of his conduct or conform his conduct to the law)
- tests determine whether that incapacity rendered D insane
- D may use either the M’Naughten or irresistible impulse test, and he must notify the CW’s attorney in writing 60 days before trial that he intends to raise insanity.
- If he fails to do so, the judge should grant a continuance.
- D has the burden of proving insanity to the satisfaction of the jury
Insanity vs. Incompetency
Insanity asks whether D was insane at the time of the crime. Incompetency asks whether D is insane at the time of trial. If D is incompetent, trial is adjourned until D is competent.
a defense to any crime, so long as it’s completely involuntary. It’s treated like a mental illness, and the insanity tests apply.
MS Voluntary Intoxication
defense to specific intent crimes if it prevents D from forming the specific intent. It is not a defense to general, SL (statutory rape), or malice (arson, murder) crimes.
VA Voluntary Intoxication
- only a defense to specific intent crimes if it produced permanent insanity, except for murder.
- Alone it is insufficient to negate the premeditated and deliberate
- elements of capital and first-degree. More must be shown.
CL: Prosecution is not allowed for those under 7, allowed for those 14 and older, and there’s a rebuttable presumption against it for those in between.
those under 7 are incapable of forming intent, those 14 and older are presumed capable (and may be tried as adults), and there’s a rebuttable presumption for those in between.
Applicable if the criminal design originated with the government and D was not predisposed to commit the crime.
The government may use prior crimes to show predisposition if the prior crime was close in time, a similar crime, and the probative value outweighs the prejudice.
D is forced by the circumstances. For non-homicide crime, D may claim necessity if he reasonably believed the conduct was necessary to prevent a greater harm.
Another person forces this decision on D. For non-homicide crimes, D can claim duress if threat of death or serious physical injury forces him to commit the crime
- D may use non-deadly force (shoves, punches) if it is reasonably necessary to protect against an imminent use of unlawful force against himself.
- D may only use deadly force (knives, guns) if he is facing an imminent threat of death/serious injury.
- If D is the initial aggressor, he may only use deadly force if he communicates his withdrawal from the fight or if V suddenly escalates the non-deadly fight into a deadly fight.
- Majority rule: retreat is not required for deadly force.
- Minority, retreat is required, unless D is in his home, is making a lawful arrest, is being robbed, or can’t retreat safely.
- If D mistakes the need for self-defense, he still has a defense so long as his mistake was reasonable.
- Under the CL, an unreasonable mistake is not a defense.
- Under the MPC, an unreasonable belief will reduce murder to voluntary manslaughter.
- Preventing crime: Non-deadly force may be used if it’s necessary to prevent a crime. Deadly force may only be used to prevent a felony risking human life.
- Others: D may use force and deadly force to protect others if he reasonably believes the person he assists has the legal right.
- Dwellings: Non-deadly force is justified when there’s a reasonable belief that it’s necessary to prevent/terminate another’s unlawful entry. Deadly force is allowed where there was tumultuous entry and reasonable belief that it was necessary to prevent personal attack on himself /another or where there’s reasonable belief that it’s necessary to prevent someone from entering who intends to commit a felony inside.
- Property: One may use non-deadly force to defend property in his possession from unlawful interference if asking the person to stop won’t work. Deadly force is never okay
- D may use non-deadly force to defend himself if there’s a reasonable appearance that it’s justified. He has no duty to retreat, but his use of force must be reasonable under the circumstances.
- D may only use deadly force if he is without fault and there is an imminent danger of death/great bodily injury. Threatening words alone are insufficient, and his fear must be reasonable.
- If D is the initial aggressor he regains his right to use force in self-defense after totally abandoning his original attack.
- Retreat is only required if D is at fault or if he provoked the aggressor, and he must retreat as far as possible. D never
- needs to retreat if he is on his own premises.
- Others: D steps into the shoes of the person he defends. He only has a right to use self-defense if that person did.
- Dwellings: Non-deadly force may be used to prevent entry, but deadly force may only be used when fearing great bodily injury to self or others.
- Property: One can use non-deadly force, but not deadly force to defend property.
- Perjury is the willful false swearing of a material matter while under oath or later giving conflicting testimony under oath.
- Inducing another to commit perjury is subornation of perjury, and the inducer is guilty as if he committed perjury himself.
- Those convicted of perjury may not hold office under the Va Constitution or serve as jurors.
Bribery is a corrupt gift to a public official/candidate with the intent to influence his official acts
Obstruction of Justice
Obstruction of justice is attempting to intimidate a W, court officer, or law officer; or knowingly lying to a law officer conducting a criminal investigation
False reports: knowingly giving a police officer false information with the intent to mislead them about a crime
taking money to conceal/not prosecute an offense or willfully concealing/destroying evidence with intent to hinder prosecution.
- one’s preventing a law enforcement officer from
- lawfully arresting him