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Criminal Law

Discussion in 'Channel Zero' started by nuyorican, Dec 13, 2005.

  1. nuyorican

    nuyorican Junior Member

    Joined: Dec 4, 2005 Messages: 163 Likes Received: 0
    Utilitarian Theory- Bentham- Focuses on deterence.
    idea is to look forward. What impact will this punishment have on future crimes? Benefits v. Risk theory. Purpose to benefit the happiness of society. Punishment outweighs expected pleasure. Only way to justify punishment is to benefit society. General-punish to convince general community. Specific- to deter individual perosn. Argument against:punishment would be made too severe.

    Retributive Theory-Kant- "better that one man should die then the whole people perish" punishment exactly fits the crime. Looking backward at the defendant what is the appropriate moral sanction for that individual. Upholding morality. Viewed more as a human.

    2 Parts of a crime
    1.mens rea- intent
    2.actus reas-act causing death

    The most common defense in criminal cases and always teh first: insufficieny of the evidence.



    Both my essay questions will have statutes. i need to interpret the statute in certain ways. i need to ask if its a common law crime. then i have to see if the statute didnt change the meaning of the mental state, then if not, look at the common law meaning,and say it on the test. this is all if terms arent defined.
    In statutes, look to see what the mental state is, what it modifies, and where it is.

    for every question ask if there was a duty to act, a failure to act, or other principals.

    Crimes of Homicide:
    malice aforethought is the synonym with [common law]murder.

    malice aforethout, or common law murder, requires one of the following:
    1.an intent to kill, or
    2. an intent to inflict grievous bodily harm, or,
    3. a knowing creation or concious disregard of a very haigh risk that death or great bodily harm will occur (aka depraved heart)
    4. an intention to commit a felony or during commission or attemted commission of which death results (felony-murder)

    proving mens rea is rarely done through direct evidence and is usually done through circumstantial evidence.



    -------

    gimme a minute ill be back with more...

    this is an answer guide, or what a perfect score on a law school exqam would look like, at least for the essay part of the test.



    General principles


    ___ (5 points)


    •As with any mens rea, this can be proved by reasonable inference from the circumstances and based upon common sense
    •Failure to act, in light of statutory duty, can provide actus reus for the killing
    •Affirmative physical act not required if D has a legal duty to act and D breaches that duty to act by an omission
    •Legal duty to act:
    •Statutory: MCL 750.136b(1) requires person to provide "the food, clothing, or shelter necessary for a child's welfare"
    •136b(1)©: "Person" = child's parent
    •136b(1)(a): "Child" = person under 18
    •136b(1)(b): "Omission" = "willful failure to provide the food, clothing, or shelter necessary for a child's welfare or the willful abandonment of a child"
    •Also status of the relationship between D & victims - mother/sons

    Murder in first degree under 750.316?

    ___ (5 points)


    Law

    •Mens rea - willful, deliberate and premeditated
    •Actus reus - killing of another

    Analysis
    •A bit extreme, but a reasonable argument could be made supporting M1
    •Mens rea
    •D knew that William was of educably retarded intellectual functioning
    •D knew William was dependent on others and reacted poorly to frustration
    •D had to know that the kids' room contained piles of excrement
    •D had to know kids would be frustrated being locked in windowless room with piles of excrement, no bedding, no clothes, no heater vents or light for over 18 hours and that William might react in an inappropriate way
    •D knew that the boys had "tendencies" to "set fires"
    •D had to know the kerosene heater might be used and abused - arguably placed it there intentionally and with plan & purpose that it would be used by the boys resulting in their death
    •Actus reus
    •Her failure to act in providing for her kids caused the death of the kids
    •Omissions of D Austin:
    •D failed to physically check on William and Philip for 18 straight hours
    •D failed to provide kids a room with heat and light
    •D failed to provide kids with food or clean bathroom facilities
    •D left the kids in situation where she knew they would get frustrated - knowing that they had tendencies to "set fires"
    •D knew they would act out - as she "locked" them in the room
    •By not providing them with heat and proper care, but making a kerosene heater available, and knowing their tendencies to set fires, the evidence arguably supports W, D and P murder


    Murder in second degree under 750.317?


    ___ (9 points)


    Law

    •As murder is not defined in statute, look to common law meaning of murder:
    •Common law murder - malice aforethought (all w/o justification, excuse or provocation)
    •Intent to kill
    •Intent to inflict great bodily harm
    •D knowingly created or consciously (i.e., subjectively) disregarded a very high risk that death or great bodily harm would occur
    •felony murder
    •Mens rea - any of three above
    •Actus reus - killing of another

    Analysis
    •Obviously no justification, excuse or provocation present
    •Mens rea - all involve extreme indifference to value of human life
    •All of the same facts supporting M1 strongly support mens rea here
    •Actus reus
    •All of the same facts supporting M1 strongly support actus reus here




    Manslaughter under 750.321?


    ___ (9 points)


    Law

    •As manslaughter not defined by statute, look to common law meaning of manslaughter.
    • Involuntary manslaughter - equivalent of criminal (i.e. gross) negligence

    •General principles:
    •Risk of death reasonably foreseeable?
    •Does not require conscious (i.e. subjective) awareness of the risk to human life
    •Risk of death must be reasonably foreseeable (objective standard)
    •NOTE: split of authority - in some jurisdictions, proof that D was aware of the risk is required.
    •Defendant's conduct create a high risk of death?
    •Defendant's conduct unreasonable (socially unacceptable from a public policy perspective)?
    •Defendant's conduct a substantial departure from how ordinary person would act?
    •Something more than ordinary negligence
    •Analogy and Distinction:
    •Is this more like Rodriguez (not involuntary manslaughter) or Delay v. Brainard (involuntary manslaughter)?

    Analysis
    •Much of the same analysis as discussed for second degree murder
    •Key differences between Malice and Criminal Negligence
    •For malice, D must have been consciously (i.e. subjectively) aware of the risk
    •For criminal negligence, sufficient that a reasonable person (objectively) would have or should have been aware of the risk
    •For malice, the risk must have been a very high risk of death or GBH
    •For criminal negligence, sufficient that D's conduct created high risk
    •This case is worse than either People v. Rodriguez or Delay v. Brainard
    •No question about causation - fire stemmed from kerosene heater in kids' room
    •Evidence supports position she was much more than grossly negligent:
    •she knew of their tendency to set fire
    •she knew of at least William's tendency to get frustrated
    •she knew the room wasn't heated and that they would get cold
    •she knew that a kerosene heater was available
    •If evidence supports M1 or M2, surely satisfies involuntary manslaughter

    Child abuse in the first degree under 750.136b(2)?

    ___ (5 points)


    Law

    •Mens rea - knowingly or intentionally act (or failure to act)
    •Actus reus - act (or failure to act) causing serious physical or mental harm

    Analysis
    •Mens rea
    •Same facts supporting mens rea for M1, M2 and Invol Mansl
    •Actus reus
    •Same facts supporting actus reus for M1, M2 and Invol Mansl
    •136b(1)(d): "Serious physical harm" = "any physical injury to a child that seriously impairs the child's health or physical well-being"
    •While it does not include death, surely death could be implied
    •Also consider "serious mental harm"


    Child abuse in the second degree under 750.136b(3)?


    ___ (5 points)


    Law

    •Mens rea - willful failure to provide food, clothing, or shelter necessary for a child's welfare OR reckless act
    •Actus reus
    •for omission, serious physical harm or serious mental harm
    •for reckless act, serious physical harm
    Analysis
    •Mens rea
    •Same facts supporting mens rea for M1, M2, Invol Mansl & Child Abuse 1st degree
    •Actus reus
    •Same facts supporting actus reus for M1, M2, Invol Mansl & Child Abuse 1st degree




    Recommendation for most appropriate charge


    ___ (6 points)


    •Community outrage will be high, but does that support M1? M2? Especially with a single mom struggling to raise 4 kids? Utilitarian/Retributive considerations?
    •While reasonable to consider M1 charge, actually charging it seems extreme - Austin has to act (or fail to act) with the conscious purpose that they die; she has to want them to die and plan for it!
    •Analogy and Distinction - while dated, Rodriguez held conduct there was only negligence; Delay v. Brainard held involuntary manslaughter
    •Causation clearer here & mens rea argument stronger - appears to justify M2 (and clearly supports involuntary manslaughter)
    •Most likely charge: M2 under depraved heart theory or involuntary manslaughter
    •Don't bother with charging child abuse except to note in homicide charge that this statute imposes on D a legal duty to act

    Defendant's argument for most appropriate charge (if any)

    ___ (6 points)


    •Facts support - at most - an intent to control the kids, NOT kill them
    •She did everything she did with the intent to control them -
    •knowing their tendencies to get frustrated and light fires.
    •Locked up in a room where they couldn't cause any trouble
    •While she can't deny she was negligent, she was doing her best within her limitations as a single mom of 4 without child support payments to raise her kids
    •reasonable discipline under 136b(4)?
    •No evidence to support that the room was too cold - just because it did not have a heater vent, does not mean it wasn't heated through heat from the rest of the house
    •No evidence to support that the kerosene heater would find its way into the kids' room and that she was aware of that
    •Most appropriate charge: Child Abuse in 2d degree or, at worst, involuntary manslaughter.

    ____ Overall quality (3 points)

    ____/53 Essay Question One Total







    ESSAY QUESTION TWO (37 points)




    False Pretenses


    ___ (8 points)


    Law

    •Common law elements of false pretenses
    •Conduct resulting in obtaining title
    •To personal property
    •Of another
    •By way of a knowing misrepresentation
    •Of a material
    •Existing fact
    •With intent to defraud

    Analysis
    •Conduct resulting in obtaining title ?
    •Appears that Courtney and Woods did not obtain ownership interest from Price
    •Rather, appears that Courtney and Woods merely obtained possession
    •Price may have had title to give, but he did not intend to pass title
    •The $200 was merely "put up" to show "he was in good standing"; he believed he would get the money (plus 1/3 of $1600) back
    •To personal property - yes, money
    •Of another - yes, Price's
    •By way of a knowing misrepresentation - yes, reasonable inference is that there was no $1600, no "boss" and that Courtney and Woods had no intention of providing Woods with any money
    •Of a material existing fact - yes, existence of wallet with $1600 cash material to Price
    •With intent to defraud - yes, reasonable inference is that the Courtney and Woods took the $200 with intent to deprive Price of it permanently; a classic con


    Embezzlement


    ___ (8 points)


    Law

    •Common law elements of embezzlement
    •Conversion
    •Of personal property
    •Of another
    •By a defendant already in lawful possession (substantial discretion and control over the property) as a result of a trust relationship
    •With intent to permanently deprive


    Analysis

    •Conversion - yes, Courtney and Woods performed act (taking Price's $$ based upon false representation) that demonstrated intent to deprive another of property permanently.
    •Of personal property - yes, money
    •Of another - yes, Price's
    •By a defendant already in lawful possession as a result of a trust relationship - no, Courtney and Woods were never lawfully in possession of the money
    •With intent to permanently deprive - yes, reasonable inference is that the Courtney and Woods took the $200 with intent to deprive Price of it permanently


    Larceny


    ___ (8 points)


    Law

    •Common law elements of larceny
    •Trespassory
    •Depriving the victim of the right to physical possession of the property without the victim's consent, or, obtaining the victim's consent by fraud (any fraudulent intent at the time of the initial transfer)
    •Taking
    •Carrying away
    •Personal property
    •Of another
    •With intent to steal
    •Larceny by trick is just a form of larceny - where the trespassory taking involves "asking but lying" to get the personal property of another


    Analysis

    •Trespassory - yes, Courtney and Woods obtained Price's consent to possession of the money by fraud
    •Taking - yes, Woods took possession of the money at behest of Courtney
    •Carrying away - yes, Courtney and Woods left with the money
    •Personal property - yes, money
    •Of another - yes, Price's
    •With intent to steal - yes, reasonable inference is that the Courtney and Woods took the $200 with intent to deprive Price of it permanently



    Conspiracy


    ____ (8 points)


    Law

    •Common law conspiracy is an agreement by 2 or more persons to commit criminal act or series of criminal acts, or to accomplish a legal act by unlawful means.
    •A criminal conspiracy does not occur unless two or more persons: (1) intend to agree; and (2) intent that the object of their agreement is to be achieved.
    •At common law, no overt act was required
    •An agreement can be proved by circumstantial evidence
    •Conspiracy does not merge into completed offense that was object of conspiracy.
    Analysis
    •Agreement - yes, can be inferred from facts
    •Courtney and Woods approached Price together; both explained the situation to Price; Courtney went to talk with the "boss" while Woods kept Price company; Price took $$ at Courtney's behest; both left together; both failed to show up for their "appointment" with Price; both missing from their apartments; Price never received his money back
    •By 2 or more persons - yes, Courtney and Woods
    •To commit a criminal act or series of criminal acts, or to accomplish a legal act by unlawful means - yes, the object of the conspiracy was the theft of property from Price
    •Conspirators (1) intend to agree; and (2) specifically intend that the object of their agreement be achieved - inferred from the above facts

    ____ Best charge(s)? (3 points)

    •Larceny is best theft charge - evidence shows Price only passed possession of the money
    •Title did not pass as Price did not intend to pass title - no false pretenses
    •Embezzlement not appropriate as Courtney and Woods never obtained lawful possession
    •Add a conspiracy count - as conspiracy does not merge with substantive count
    •No charge is the worst choice - have to take a chance!

    ____ Overall quality (2 points)

    ____ /37 Essay Two Total


    ____ /90 Essay One and Two Total


    ____ /90 Multiple Choice Total

    ____ /180 Exam Score
     
  2. nuyorican

    nuyorican Junior Member

    Joined: Dec 4, 2005 Messages: 163 Likes Received: 0
    im back and smoke crack

    There are certain ways you can be charged with murder according to the most commonly adopted statutes in america for murder, knowns as the PA statute: Poison, lying in wait, premeditatedkilling, willful killing, deliverate killing, or committed in an attempt to commit arson, rape, robbery, burglary,-demed murder of the 1st degree. All other kinds deemed second degree murder.

    Willful-intent to kill
    premeditation can occur in a short period of time.


    intent to kill is the only common law murder way of getting someone for attemted murder instead of the other 3 ways.

    Voluntary manslaughter- elements are 1. the defendant is in a "state of passion" at moment of homicide, and 2.as a result of legally adequate provocation(words are never enough [under common law]), and 3.there was no reasonable cooling off time, and 4.there is a causal connection.

    If a statute says anything about manslaughter one has to look at both, voluntary and involuntary manslaughter.

    involuntary manslaughter- unintentional crime- gross negligence and/or criminal negligence.
    voluntary manslaughter-intentional murder.

    Voluntary manslaughter is the most often defense raised to lower a case from 2nd degree murder to voluntary manslaughter.

    Felony-Murder-you get charged with murder in the 1st degree if you commit one of these felonies, burglary, arson, rape, robbery, kidnapping, sodomy, and a murder too,the felony and the murder have to be independent of each other to charge with felony murder.

    the felonies jsut have to be inherently dangerous felonies.

    misdemeanor manslaughter isa killing that occurs during the commission of an unlawful act not amounting to a felony,this is involuntary manslaughter.

    agency theor is a modern rule against vicarious liability that says that a killing by a non felon is not something that can be used as a basis for felony murder. If agent and what was done was in furtherance of the crime then yes.

    Model Penal Code has no degrees of murder

    ill be back with mpc manslaughter and start with rape,
     
  3. Milton

    Milton Senior Member

    Joined: May 21, 2003 Messages: 2,253 Likes Received: 0
    Is that really your test for "premeditation?" Also, you never have cases? Wahgwan?

    Also your "felony murder" section is wrong.

    You have nothing about "depraved heart"
     
  4. nuyorican

    nuyorican Junior Member

    Joined: Dec 4, 2005 Messages: 163 Likes Received: 0
    ^^^ chill doggy im not even done yet
     
  5. nuyorican

    nuyorican Junior Member

    Joined: Dec 4, 2005 Messages: 163 Likes Received: 0
    MPC manslaughter-extreme emotional disturbance is the meotional state of an individual who:
    1.Has no mental disease or defect that rises to the level est. by sect. 30.05 of penal law.
    2. is exposed to an extremely unusual and overwhelming stree,
    3.hs an extreme emotional reaction to it, as a result of which there is a loss of self-control and reason is overborne by intense feelings such as passion, anger, distress, grief, excessive agitation or similar emotions.

    its the closest to voluntary manslaughter but still much broader.

    common law rape:
    elements
    1.penetration (penile vaginal only)
    2.by a man against a woman not his wife
    3.by force and against her will
    4.mens rea satisfied by the penetration, so its a general intent crime.

    fraud infactum-like a doctor fraudulently claiming facts to rape,makes it withot consent


    evidence issues: 1. resistance requirement. 2. corroboration requirement (no witness no conviction) 3. cross examination of the victim regarding past sexual history and reputation of chasity.

    Statutory Rape:
    1.penetration of a female child under the age of consent
    2. consent or lack of consent is irrelevant
    3. force or lack of force is irrelevant
     
  6. nuyorican

    nuyorican Junior Member

    Joined: Dec 4, 2005 Messages: 163 Likes Received: 0
    Battery- elements
    1.unlawful
    2. harmful or offensive contact
    3. caused by the defendant
    4. with intent to cause a harmful or offensive contact or
    5.as a result of gross negligence regardless of intent.

    assault- elements
    1. intent to cause harmful or offensive contact
    2.present ability
    3. apprehension by the victimn not required
    4. the attempt must come very close to completion

    ill be back and edit this post, with kidnapping, burglary, arson, and the theft offenses.
    then theres allot more stuff. gimme a second
     
  7. isor357

    isor357 Senior Member

    Joined: Oct 8, 2004 Messages: 2,491 Likes Received: 3
    yeah so how do you beat a mdop 1000+ case
    tell me that
     
  8. Dr. Dazzle

    Dr. Dazzle Veteran Member

    Joined: Nov 19, 2001 Messages: 8,147 Likes Received: 3
    Tough Love will be all over this shit...
     
  9. nuyorican

    nuyorican Junior Member

    Joined: Dec 4, 2005 Messages: 163 Likes Received: 0
    Here I go!

    PA(the state, so if you got fam convicted for some kind of homiced, this is how the court came to its decision, classifications of homicide, yes, homicide.

    1st degree murder:
    it could be "aggravated" or felony-murder. aggravated means you used a deadly weapon, you poisoned, or you lied in wait (waited for a while). it MUST include three elements, 1.willful (which is voluntary and intentional), 2.deliberate(which is impulsive), and 3. premeditated (aka planning, consideration).
    it could also be felony murder, and there are two views on this, a majority view and a minoirty view, the majority view is the one most courts use, which is that when the homicide happened during the commission or attempt to commit these felonies(Burglary, arson, rape, robbery, kidnapping, sodomy). The minoirty view is that the prosecution must also prove that there was also an intent to kill.

    2nd degree murder:
    this is called by law student "common law murder" and theres no premeditation in it. it is one of these four. 1. intent to kill. or 2. intent to do great bodily harm, or 3. intentional (knowing) creation or conscious disregard of a very high risk that death or great bodily harm will occur (aka "depraved heart" or 4. felony murder (and the states vary on this last ones requirements, like if it has to be an inherently dangerous felony that can also get someone for first degree or if its any felony at all)

    Manslaughter:
    manslaughter is divided into two categories, like 1st degree murder divided in two categories. The first is voluntary manslaughter. Thats when you have 1. a situation where there is reasonable provocation to kill 2. there was no cooling off time between the provocation and the killing, and 3. it was done during the heat of passion. ("heat of passion" sounds sexy). and theres also involuntary manslaughter. This is either 1. homiced that happened because of gross negligence (aka criminal or culpable(deserving blame) negligence) or 2. a homiced during the commission or attempt to commit a misdemeanor.(states vary if they have to be inherently dangerous misdemeanors, or all misdemeanors, or malum in se misdemeanros).



    there you have it... 4 degrees if criminal sexual conduct coming up ..

    criminal sexual conduct:

    1.1st degree is aggravated penetration, and for that you get life.
    2.2nd degree is aggravated sexual contact, 15 yrs
    3.3rd degree is non aggravated penetration, 15 yrs.
    4. 4th degree is non aggravate sexual contact, 2yrs.
     
  10. nuyorican

    nuyorican Junior Member

    Joined: Dec 4, 2005 Messages: 163 Likes Received: 0
    all and any defenses in criminal law. in no particular order.

    1. entrapment
    2.defense of others
    3.self defense
    4.imperfect privilege
    5.compulsion/necessity
    6.crime prevention
    7.law enforcement
    8.defense of habitation
    9.ignorance or mistake of law
    10.ignorance or mistake of fact
    11.condonation of the victim
    12. conduct of the victim
    13.insanity-complete defense for all crimes.4 diff. kinds.
    14.guilty but mentally ill-it lowers a criminals conviction if degrees are available.one has a mental condition but not enough to be insane
    15.diminished capacity-reduces the crime if its in degrees cause it reduces ones specific intent required.
    16.intoxicationsame as above.
    17.impossibility
    18.abandonment-not a defense for any crime.
    19.withdrawal-





    im hungry gimme a second
    general intent crimes are like that caus eof public policy
     
  11. duh-rye-won

    duh-rye-won Member

    Joined: Aug 8, 2001 Messages: 580 Likes Received: 2
  12. gasfacevictm

    gasfacevictm 12oz Loyalist

    Joined: Jul 29, 2003 Messages: 10,415 Likes Received: 707
    the law sucks.
    the constitution rules.
    NO WAR FOR HEAVY METAL!
     
  13. Milton

    Milton Senior Member

    Joined: May 21, 2003 Messages: 2,253 Likes Received: 0
    You forgot Duress (unless that's what you mean by compulsion, but it is actually a different thing.) See, e.g. MPC "reasonable firmness" requirement. Subjective duress. 2. Your analysis on "guilty but mentally ill" is wrong. It doesn't reduce the crime charged in most jds. Instead, in some cases it allows for the person to receive treatment prior to entering jail. In others it simply indicates that the person was not sane but does nothing for the degree of the crime (may be a mitigating factor in punishment). Also, it is considered by the vast majority of scholars to be a misnomer in that a plea of "mentally ill" indicates that the actor is not a fully accountable moral agent and thus cannot be culpable for the offense while at the same time saying that the person is culpable. It's basically political "mumbo jumbo."
     
  14. duh-rye-won

    duh-rye-won Member

    Joined: Aug 8, 2001 Messages: 580 Likes Received: 2
    you said, "reasonable firmness".
     
  15. Milton

    Milton Senior Member

    Joined: May 21, 2003 Messages: 2,253 Likes Received: 0
    Uberthread here I come...
     
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