CRIMINAL LAW
BRUCE BERNER
FALL 2011
1. Homicide Elements
a. Actus Reus
i. guilty act or omission
b. Mens Rea
i. guilty mind
ii. expressed or implied “malice” needed to accompany T/C
c. Concurrence
i. the actus reus and the mens rea must concur
d. Causation
i. connection between the result and the acts
e. Result
2. Punishment Aims
a. Retribution
a. For society’s loss
b. Deterrence
a. Special deterrence: the effect the punishment will have on the person punished
b. General deterrence: the effect the punishment will have on society in general
c. Restraint, Isolation, Protection
a. Death penalty, incarceration, fines, etc.
d. Education and Rehabilitation
a. Punishment is meant to be a teaching tool
1st Degree Murder
I. Premeditated Intent to Kill
A. Planned, calculated, “malice aforethought”
B. Even if it’s highly unlikely that it will actually happen: dropping a bowling ball out of an airplane over Yellowstone National Park
II. Felony Murder
A. Burglary
B. Arson
C. Rape
D. Kidnapping
E. Robbery
F. Attempt of any of the above
I. A felony-murder may or may not be intentional, but the intention is irrelevant
II. The intent to commit a felony is substituted for the intent to kill. The way in which they were usually committed carried with them an inherent danger to human life
2nd Degree Murder
a. Unpremeditated intent to kill
a. Impulsive, hot blooded, spur of the moment murder
b. Intent to do serious bodily harm
a. includes all cases of dismemberment of extreme disfigurement
b. the doing of anything that carried with it the extreme likelihood of death
i. Ex. shooting a gun at someone
c. Depraved heart (unintentional killing)
a. very high risk of death; extreme recklessness
b. depraved disregard for human life
c. they don’t necessarily have to have an intent to kill or do SBH
Voluntary Manslaughter
a. Intent to kill
a. “Heat of Passion:” a result of serious provocation
i. The provocation must have a real effect on the D so that he couldn’t control himself.
ii. The provocation must be serious by some sort of objective standard; the “reasonable” man
1. It causes us to say, “I see why he did it; I don’t condone it, but it’s not as bad as someone who kills for no reason at all.”
iii. The D must have acted while the heat of passion was still in existence.
1. He must have acted before the “cooling off period” has begun
b. Other extenuating circumstances; “cumulative provocation”
b. Intent to do serious bodily harm
a. The D didn’t mean to kill the victim, but the bodily harm resulted in their death while acting in the “heat of passion”.
Involuntary Manslaughter
i. Recklessness
1. High risk of death or SBH
ii. Unlawful Act
1. “Intent to do bodily harm”
2. Sometimes called “misdemeanor or manslaughter”
3. Battery, Assault, DUI, traffic accidents, playing with guns, hunting accidents, etc.
4. The prosecutor usually has to prove “gross negligence;”
a. What’s the difference between “negligence” and “gross negligence?” It’s the difference between a “fool” and a “damn fool.”
Complete Defenses to intentional killings
1. Excuse
a. Insanity, Duress, “Intoxication,” Entrapment
2. Justification
a. “Necessity” (choice of evils)
b. Public or Domestic Authority
c. Self-defense
d. Defense of another
e. Defense of property
f. Law Enforcement
g. War
Assault [“attempted battery”]
a. Specific Intent to…
b. Cause apprehension (frighten) of immediate bodily harm and
c. The victim actually experiences apprehension
Battery [“intentional touching”]
i. “intent to physically harm/offensively touch with an object”
a. Intentional (“recklessness” substitutes for intentional) and
b. Physical harm or off
e crime is probably going to take place.
b. The gap and amount of time in between the action and the T/C are very close together.
4. Concurrence
i. Mens Rea+Actus Reus (with concurrence)
5. Impossibility Defense?
i. Basic Rule: “Maybe”
ii. Legal Impossibility is a defense
a. If the D were told the mistake he was making, he would not go through with the crime.
b. This is a permanent mistake that cannot be corrected
i. Ex. shooting at a robot you thought was a person
iii. Factual Impossibility is not a defense
a. If the D were told the mistake he was making, he would correct the mistake and complete the crime.
b. This is a temporary mistake that is correctible
i. Ex. The tree ax murderer/ shooting at the bed, thinking someone is in it
6. Abandonment Defense?
i. Abandonment is not a defense
7. Attempt merges into the T/C once T/C is complete.
8. Punishment for Attempt
i. At the common law, the attempt to commit a felony was a misdemeanor, and the attempt to commit a misdemeanor was no crime.
ii. The traditional American approach is to punish attempt slightly less severely than the target crime.
MPC Approach to Attempt
1. Rationale
i. Identify manifestly dangerous persons
2. Mens Rea
i. Both versions require proof of specific intent. There is no recklessness version of attempt.
ii. The only crimes which can be attempted are those requiring specific intent; thus, there are no such crimes as attempted involuntary manslaughter or attempted felony murder
a. These are result based crimes that are unintentional and require no specific intent.
