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Criminal Law
South Texas College of Law Houston
Corn, Geoffrey S.

Criminal Law: Professor Corn
Fall 2013
A.     Types of Crimes
                                    1.      Felony: crime punishable by death or by imprisonment for more than a year
a.       CLà burglary, arson, robbery, rape, larceny, murder, manslaughter, and mayhem
                                    2.      Misdemeanor: crime punishable by imprisonment for less than a year
a.       CLà all crimes that are not felonies
                                    3.      Malum Prohibitum: act that is only wrong b/c it violates a statute (speeding)
                                    4.      Malum in Se: an act that is inherently wrong or “evil”—an act that involves a general criminal intent or moral turpitude (murder)
B.     Constitutional Issues
                                    1.      Void for Vagueness Doctrine: Under Due Process Clause, persons must be on notice that certain conduct is forbidden. Supreme Court required criminal statutes be specific and give a person of ordinary intelligence “fair notice” of what conduct is prohibited. Furthermore, statutes must be fair and consistent in their enforcement so as to prevent arbitrary enforcement.
                                    2.      Ex Post Facto Laws: prohibited. EPF law is one that retroactively:
a.       Makes conduct criminal
b.      Enforces a stricter punishment for the same conduct; or
c.       Alters procedural or evidentiary rules in such a way that the criminal D may be more easily convicted
C.     Elements of Crimes:
                                    1.      The prosecution must prove the following elements BRD
a.       Actus Reus (guilty act)
i.        This element may be met by:
                                                                                                    –      A voluntary act that causes an unlawful result
                                                                                                    –      An omission to act where the D is under a legal duty to act or
·         Criminal liability can be imposed on D for an omission when à
a.       There is a legal duty to act + D can physically perform
·         Legal duty can arise à
a.       By statute (tax return)
b.      By contract (nurse)
c.       Based upon a relationship (parent/child)
d.      Where a voluntary undertaking is begun (abnd of rescue)
e.       Where someone creates a risk of peril to another
                                                                                                    –      Vicarious liability where the D is responsible for the acts of another party
b.      Mens Rea (guilty mind)
i.        In determining a D’s criminal liability, the jury must look to the D’s state of mind at the time of commission of the crime. Excluding strict-liability crimes, a crime is committed only when a criminal act concurs with a guilty mind.  
                                                                                                    –      Intentionally: one acts intentionally when he desires that his acts cause certain consequences or knows that his acts are substantially certain to produce those consequences
                                                                                                    –      Knowingly: one acts knowingly when he is subjectively aware that his acts are substantially certain to cause a certain consequence
                                                                                                    –      Purposely: one acts purposefully when there exists a conscious objective to cause a result.
                                                                                                    –      Recklessly: one acts recklessly when he consciously disregards an unjustifiable risk and its disregard involves a gross deviation from the standard of conduct that a law-abiding person would observe in the actor’s situation
                                                                                                    –      Criminal Negligence: one acts negligently when he doesn’t realize a risk that a reasonable person would. A gross deviation from societal care. It’s a judgment for the jury to decide whether a RP would be aware of the risk.
ii.      Specific-Intent: any additional MR beyond the first MR—any offense that adds “with intent to”
                                                                                                    –      A D will possess specific intent if his conscious objective is to bring about a particular result or he knows with substantial certainty that his act will have a particular result 
                                                                                                    –      Voluntary intoxication + unreasonable mistake may negate requisites specific intent elements
iii.    General-Intent: MR relates back to the act (every crime has)
                                                                                                    –      Rape, battery, kidnapping, false imprisonment, involuntary manslaughter, and depraved heart murder
                                                                                                    –      Negligence + Recklessness are sufficient mental states for GI crimes
iv.    Strict-Liability: culpability is imposed on a defendant merely for doing the act that is prohibited by statute. MR is not required.
v.      Transferred Intent: preserves liability where a D intends criminal conduct against one party but instead harms another party, so that his actions bring about an unintended, yet still criminal, result.
c.       Concurrence in time b/w the act + requisite mental state
d.      Causation b/w D’s act + result must be evident
i.        D’s conduct must be both the Actual and the Prox Cause of the criminal result
A.     Solicitation
1.      Solicitation was a CL misdemeanor, including enticing, advising, inciting, or otherwise encouraging another to commit a felony or breach the peace
2.      Solicitation will merge into attempt, consummation, or conspiracy; only have solicitation when the solicitee doesn’t do anything
3.      MPC defines solicitation broadly to include requesting another to commit any offense
4.      The solicitor must intend that the solicitee perform criminal acts (SI). Mere approval of the acts is not enough
5.      The offense is complete at the time the solicitation is made à completion of the offense solicited is unnecessary
6.      It’s unnecessary that the person solicited enter into an agreement to commit the requested crime
7.      A solicitor is treated as an accessory before the fact + thus will be guilty of any solicited crime (attempted or completed) by the solicitee
8.      Solicitor may NOT be guilty of the offense if he could not be convicted of the underlying crime (ex. Where solicitor is a member of the class of persons the law seeks to protect/stat rape)
9.      Defenses
                                                            a.      CL à NO DEFENSES if the elements were present
                                                            b.      MPC à SI defenses (voluntary intox + unreasonable mistake of fact) are valid
–          Even where it would be impossible for the solicitee to carry out the crime, such impossibility is no defense for the crime of solicitation. What matters is what the solictor believes the circumstances to be (not what they actually are)
–          B/c crime of solicitation is complete as soon as the solicitation is made withdrawal CANNOT be a defense (even if the solicitor later changes his mind—change of heart may be defense to underlying crime but not to solicitation)
                                                             c.      Ex) put solicitation in the mail but doesn’t get received –treated as attempted solicitation; did the last act/ without stamp—raise defense of factual impossibility, still guilty
–          Hybrid impossibility: if the police set up a dummy address that doesn’t have a human being at the receiving end and you mail thinking that you mailed it to a person—factual error would make it impossible to prove communication was sent to a person 26:20 CrimLaw18
B.     Attempt
1.      The crime of attempt consists of 2 elements:
                                                            a.      A specific intent (purpose) to bring about the target offense; and
–          The SI requirement means that in some cases an attempt conviction requires more proof than a completed offense
·         Ex) to be guilty of attempted murder one must have the specific intent to kill
                                                            b.      A significant overt act in furtherance of that intent
–          Significant overt act must be an act of perpetration beyond an act of mere preparation (passed the locus poenitentiae [line of criminality] from preparation to perpetration)
·         CL: D was required to have performed the “last act” necessary to achieve the intended result
·         Today: many cts. Apply “proximity test” which asks how close in time and physical distance a D was to the time + place the target crime was to be committed; some use “RIL” test requires the D’s conducts be such that it can have no other purpose than the commission of the crime attempted
·         MPC: only require an act that constitutes a substantial step toward the offense that corroborates the criminal intent required
2.      Once the target crime is committed, the attempt merges into that target crime
3.      2 types of attempts à
                                                            a.      Complete
–          D has done everything possible to bring about the target offense, has taken the last act but for some reason cannot complete
–          Only question: can you prove the requisite specific intent MR?
                                                            b.      Incomplete
–          D has not completed the last act
4.      EXAM: have to prove 2 things
                                                            a.      Overt act that goes beyond mere preparation to perpetration
                                                            b.       Act was committed w/SI (purpose) of bringing about the target offense
–          2 MR components for attemptà D did the act intentionally (GI) and did it with the purpose (SI) of bringing about the target offense
–          Ex) statutory rape—does not require MR but as long as you can prove that when he crossed the LP from preparation to perpetration w/ the purpose of having sex with the child, knowing her age is irrelevant!
                                                             c.      The crimes you cannot attempt to commit are reckless/negligent crimes b/c they presuppose you didn’t have the purpose of causing the harm (depraved heart murder, involuntary manslaughter, reckless endangerment, neglige

have a connection b/w all (ex. Drug distribution)
–          MPC: makes it harder convict for chained, must prove D had subjective knowledge that the chain existed + ignorance of the chain would be a defense
                                                            b.      Wheel: Hub + Spoke Relationship à
–          One common member enters into agreements to commit a series of independent crimes w/ different individuals
–          Multiple conspiracies exist
·         Organized crime each conspirator is in agreement with the hub but not with each other—no common purpose
9.      Procedural Issues
                                                            a.      An acquittal of one co-conspirator traditionally results in the acquittal of a single remaining co-conspirator b/c at least 2 guilty parties are required for a conspiracy conviction
                                                            b.      It is not necessary to try more than one conspirator—thus a single conspirator could be tried + convicted of conspiracy if his co-conspirators were missing or dead
                                                             c.      CL rule (followed by maj jx) à strict bilateral agreement—no conspiracy exists if only one of the conspirators truly agrees and the other conspirators feign agreement (must be a meeting of at least two guilty minds)
–          EXAM TIP: MAJ rule = no “one person conspiracies” therefore one criminal + one undercover police officer cannot conspire!
                                                            d.      MPC à follows unilateral approach + dispenses w/idea that 2 people actually agree. Under this approach, all the co-conspirators, having feigned agreement or having been acquitted, will not prevent a D from conviction of conspiracy  à focuses on D’s mind, if D believes conspiring that’s enough
–          Braverman Rule (1 conspiracy per agreement)—can only be guilty of a count of conspiracy based on proof an independent agreement
·         Exception: if the criminal code defines specific types of conspiracies then 1 agreement can violate multiple conspiracy prohibition –if you had 1 agreement can charge different conspiracies b/c there are specific conspiracy prohibitions for that agreement
                                                             e.      A member of a legislatively protected class cannot be guilty of a conspiracy to commit that crime or of being an accessory to a crime (a minor female cannot conspire w/a male to commit stat rape)
10.  Defenses
                                                            a.      Wharton’s Rule: CL if the crime by its definition requires proof of agreement, the agreement to commit the crime merges into the completed crime + can use that agreement to prove conspiracy (dueling, bigamy, adultery, gambling)
–          Exceptions:
·         3rd party: if an additional party enters into an agreement then you have a conspiracy
·         legislative intent” if the nature of the offense or the legislative history indicates the legislature wanted the conspiracy to be viable then trumps WR (common in gambling)
                                                            b.      Impossibility is NOT a defense to conspiracy
                                                             c.      General Rule is that withdrawal is NOT recognized as a valid defense to conspiracy b/c the conspiracy is complete as soon as the parties agreed to commit the crime + an overt act is committed
                                                            d.      Withdrawal may cut off further liability for crimes committed in furtherance of the conspiracy IF the withdrawing conspirator communicates his withdrawal to EACH of the co-conspirators
                                                             e.      CL à you would have to notify all co-conspirators of your withdrawal or go to the authorities to prevent the commission of the crime
–          Withdrawal = SCISSOR à cuts pinkerton liability
                                                              f.      MPC à withdrawal by a co-conspirator may be a valid affirmative defense to the charge of conspiracy itself where the renouncing party gives timely notice of his plans to all members of the conspiracy + performs an affirmative act to “thwart” the success of the conspiracy
–          Renunciation = ERASER à erases conspiracy